Exhibit 4.94
OCTOPOD SYSTEM SOFTWARE
LICENSING AGREEMENT
This Software Licensing Agreement (this "Agreement") is entered into by and
between the following Parties on January 1, 2007 ("Effective Date") in Shanghai:
SHENGQU INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD., a corporation
organized and existing under the laws of the People's Republic of China
(the "PRC") and having its registered address at Xx.0 Xxxxxx Xxxxxxxx,
Xx.000 Xxxx Xxxx, Xxxxxx New Area, Shanghai, the PRC ("Shengqu" or the
"Licensor"); and
SHANGHAI XXXXXX NETWORKING CO., LTD., a corporation organized and existing
under the laws of the PRC and having its registered address at Xxxx 000-X,
000 Xxxxxxxxxxx Xxxx, Xxxxxx New Area, Shanghai, the PRC ("Xxxxxx
Networking" or the "Licensee").
RECITALS
WHEREAS, the Licensor owns the software program of Licensed Software (as
defined below);
WHEREAS, Xxxxxx Networking desires to license the Licensed Software;
WHEREAS, the Licensor is willing to license the Licensed Software to Xxxxxx
Networking.
NOW AND THEREFORE, the parties through consultations agree as the follows:
1 DEFINITIONS
The terms concerned used in this Agreement are hereby defined as follows:
1.1 "Authorized Personnel" means the employees of the Licensee and personnel
from third parties who work on behalf of the Licensee under a contract
(which shall include confidentiality clause) entered into and between the
Licensee and the third party.
1.2 "Confidential Information" means the technical information and management
information which have not been publicly disclosed, can bring economic
benefits to obligees, have practicability and are subject to the
confidential measures adopted by the obligees, including but not limited to
computer software, technical parameter, price list, design, software
documentation, manuals, models and account tables.
1.3 "Designated Computer" means the computers and the upgraded computers
thereof
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installed in the offices of the Licensee.
1.4 "Licensed Program" means the executable processing programs of licensed
information, which is composed of various modules in the Licensed Software
package provided by the Licensor.
1.5 "Licensed Information" means any information concerning the Licensed
Program, which is owned by the Licensor and is licensed to the Licensee
together with the Licensed Program. Licensed Information includes such
information as input form, user manual, interface format and input/output
format and is delivered to and used by the Licensee as confidential
information or proprietary property of the Licensor.
1.6 "Licensed Software" means the Octopod System, which includes the Licensed
Program and the Licensed Information, used to control local and remote
servers.
1.7 "Server" shall mean the specific server upon which the Octopod System
client software is installed and of which are incorporate into the Licensor
managed unified Octopod System.
1.8 "Upgrade Version" means the Licensed Software comprising of Licensed
Program and/or the Licensed Information to which updating, enhancements,
corrections, additions of BUG patches or other changes have been made. The
exterior form of the Update Version is reflected by changes to the version
numbers. For an example, in the version number 2.1.3, a change in the first
number from left to right means the occurrence of a bigger version of the
software, a change in the second number means substantial improvements to
the software performance, and a change in the third number means slight
improvements to the software performance.
2 GRANT OF LICENSE AND LIMITATIONS
License to Use the Licensed Software. In accordance with the terms and
conditions hereof, the Licensor agrees to grant to Xxxxxx Networking a
license to install and operate the Licensed Software on the Designated
Computers and to grant to its customers the right to use such software
system.
3 LICENSE FEE, SERVICE FEE AND SUPPORTING FEE
3.1 Upon the installation of the Licensed Software on the Designated Computer,
Xxxxxx Networking shall provide Shengqu with a supporting fee. The
supporting fee shall be calculated using the following formula: supporting
fee= number of Servers x RMB100.
3.2 Shengqu shall deliver the invoice to the Licensee within fifteen (15) days
after the receipt of such licensee fees and supporting fees.
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4 ORIGINALITY WARRANTY
4.1 The Licensor warrants that the Licensed Software does not infringe any
copyright, patent or trademark or proprietary information of any third
Party.
4.2 In the event of any legal proceedings or claims by a third party against
the Licensee alleging an infringement of any PRC copyright, patent or trade
secrets owned by such third party in connection with the use of the
Licensed Software or any part thereof within the scope of the license
hereunder, the Licensor will reimburse the Licensee for any cost, expense
and loss and the litigation fees and attorney fees payable by the Licensee
according to the final court, provided that (a) the Licensee promptly
inform the Licensor of the claims relating to said infringements, (b) the
Licensee grants the Licensor full authorization and provide the Licensor
with all information and assistance necessary for enabling the Licensor to
defend the claims, and (c) the Licensor has full control over the defending
of the claims and the negations relating to the compromise and settlement
of the claims.
4.3 If the Licensee's use of the Licensed Software will infringe or in the
Licensor's opinion is likely to infringe the copyright, patent or trade
secrets alleged by the third party in the above mentioned claims, the
Licensor shall be entitled to adopt any measures to enable the Licensee to
continue to use the Licensed Software, or the Licensor may replace it with
substitutes or modify the Licensed Software so that it will be free of
infringement and at the same time it can achieve the equivalent function as
the Licensed Software.
4.4 Notwithstanding anything provided herein, the Licensor shall not be liable
for infringement of copyright, patent or trade secret arising out of any of
the following circumstances:
(a) the latest version of the Licensed Software, which is free of said
infringement, has been provided to the Licensee for free without any
changes, and the Licensee still uses other versions;
(b) The program and data of the Licensed Software has been provided to the
Licensee based on thorough studying. The licensee uses the Licensed
Software together with other program or dada, and had the Licensee not
done so, said infringement would have been avoided. However, the
Licensee fails to avoid the use of the Licensed Software together with
other program and data;
(c) The Licensee uses the Licensed Software on computers other than the
Designated Computer.
5 TERM AND TERMINATION
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The term of this Agreement shall commence on the Effective Date and shall
expire on December 31, 2007. During the term of this Agreement the Licensee
shall not unanimously terminate this Agreement.
6 APPLICABLE LAWS
This Agreement shall be governed by the laws of the People's Republic of
China.
7 GENERAL PROVISIONS
This Agreement and the exhibits hereof signed by the Parties constitutes
the entire agreement between the Parties hereto with respect to the subject
matter hereof, merges all discussions between them and supersedes and
replaces any and every other prior or contemporaneous agreement,
understanding or negotiation that may have existed between the Parties. No
amendment to this Agreement shall be effective until the Parties mutually
agree in the form of a written instrument.
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IN WITNESS WHEREOF, the Parties have each caused this Agreement to be executed
and delivered by a duly authorized representative as of the date first above
written.
SHENGQU INFORMATION TECHNOLOGY
(SHANGHAI) CO., LTD.
By: /s/ Chen Tianqiao
------------------------------------
Name: Chen Tianqiao
Title: Chief Executive Officer
SHANGHAI XXXXXX NETWORKING CO., LTD.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
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