EXHIBIT 4.9
ARENA SOFTWARE II LICENSING AGREEMENT II
This Software Licensing Agreement (this "Agreement") is entered into by and
between the following Parties on May 1, 2006 ("Effective Date") in Shanghai:
GRANDPRO 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 ("Grandpro" or the
"Licensor"); and
SHANGHAI HAOFANG ONLINE INFORMATION TECHNOLOGY CO., LTD., a corporation
organized and existing under the laws of the PRC and having its registered
address at Xx. 0000 Xxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx, the PRC ("Haofang
Online").
Grandpro and Haofang Online shall be referred to individually as a "Party"
and collectively as the "Parties".
RECITALS
WHEREAS, The Licensor owns the software program of Licensed Software (as
defined below);
WHEREAS, Haofang Online desires to license the Licensed Software;
WHEREAS, The Licensor is willing to license the Licensed Software to
Haofang Online.
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 "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.
1.2 "Licensed Information" means any information concerning the Licensed
Program, which is owned by the Licensor and is licensed to Haofang Online
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 Haofang Online as confidential
information or proprietary property of the Licensor.
1.3 "Licensed Software" mean the Arena Software II, which include the Licensed
Program
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and Licensed Information.
1.4 "Authorized Personnel" means the employees of Haofang Online and personnel
from third parties who work on behalf of Haofang Online under a contract
(which shall include confidentiality clause) entered into and between
Haofang Online and the third party.
1.5 "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.
1.6 "Designated Computer" means the computers and the upgraded computers
thereof installed in the offices of Haofang Online.
1.7 "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.
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 Haofang Online and
Haofang Online agree to accept a nontransferable and non-exclusive license
of the Licensed Software, pursuant to which Haofang Online shall be allowed
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 ROYALTY FEES
3.1 In consideration of the license granted by the Licensor of the Licensed
Software, from the first month after the installation of the Licensed
Software on the Designated Computer, Haofang Online shall in addition pay
the Licensor a revenue sharing fee, the calculation formula of which is:
revenue sharing fee = sales revenue realized by Haofang Online through the
use of computers which have installed the Licensed Software x 35%.
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3.2 Subsequent to the installation and formal operation of the Licensed
Software, Haofang Online shall pay the Licensor revenue sharing fee on a
monthly basis, and payment of the revenue sharing fee of each month shall
be made within fifteen (15) days of the end of such month.
3.3 Grandpro shall deliver the invoice to Haofang Online within fifteen (15)
days after the receipt of such installation fees.
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
Haofang Online 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 Haofang Online for any cost, expense
and loss and the litigation fees and attorney fees payable by Haofang
Online according to the final court, provided that (a) Haofang Online
promptly inform the Licensor of the claims relating to said infringements,
(b) Haofang Online 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 Haofang Online'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 Haofang Online
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 Haofang Online for free without any
changes, and Haofang Online still uses other versions;
(b) the program and data of the Licensed Software has been provided to
Haofang Online based on thorough studying. Haofang Online use the
Licensed Software together with other program or dada, and had Haofang
Online not done so, said
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infringement would have been avoided. However, Haofang Online fails to
avoid the use of the Licensed Software together with other program and
data;
(c) Haofang Online use the Licensed Software on computers other than the
Designated Computer.
5 TERM AND TERMINATION
The term of this Agreement shall commence on the Effective Date and shall
expire on the first anniversary of the Effective Date. During the term of
this Agreement Haofang Online 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.
GRANDPRO INFORMATION TECHNOLOGY
(SHANGHAI) CO., LTD.
By:
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Name: Chen Tianqiao
Title: Chief Executive Officer
SHANGHAI HAOFANG ONLINE INFORMATION
TECHNOLOGY CO., LTD.
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
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