EXHIBIT 4.10
XINTIANYOU SOFTWARE LICENSING AGREEMENT
This Software Licensing Agreement (this "Agreement") is entered into by and
between the following Parties on January 1, 2006 ("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");
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");
NANJING XXXXXX NETWORKING CO., LTD., a corporation organized and existing
under the laws of the PRC and having its registered address at Room 801,
High-technology Area, Nanjing, the PRC ("Nanjing Xxxxxx"); and
HANGZHOU BIANFENG NETWORKING CO., LTD., a corporation organized and
existing under the laws of the PRC and having its registered address at
Xxxxx 00, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, the PRC ("Bianfeng
Networking").
For the purpose of this Agreement, Xxxxxx Networking, Nanjing Xxxxxx and
Bianfeng Networking shall be referred to collectively as the "Licensees".
RECITALS
WHEREAS, The Licensor owns the software program of Licensed Software (as
defined below);
WHEREAS, Xxxxxx Networking, Nanjing Xxxxxx and Bianfeng Networking desire
to license the Licensed Software;
WHEREAS, The Licensor is willing to license the Licensed Software to Xxxxxx
Networking, Nanjing Xxxxxx and Bianfeng Networking.
NOW AND THEREFORE, the parties through consultations agree as the follows:
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1 DEFINITIONS
The terms concerned used in this Agreement are hereby defined as follows:
1.1 "Authorized Personnel" means the employees of the Licensees and personnel
from third parties who work on behalf of the Licensees under a contract
(which shall include confidentiality clause) entered into and between the
Licensees and the third party.
1.2 "Central-south China" shall mean the provinces of Henan, Hunan, Hubei,
Guangdong and Hainan and the Guangxi autonomous region.
1.3 "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.
1.4 "Designated Computer" means the computers and the upgraded computers
thereof installed in the offices of the Licensees.
1.5 "East China" shall mean the provinces of Jiangsu, Zhejiang, Anhui, Fujian,
Jiangxi and Shandong and Shanghai Municipality.
1.6 "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.
1.7 "Licensed Information" means any information concerning the Licensed
Program, which is owned by the Licensor and is licensed to the Licensees
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 Licensees as confidential
information or proprietary property of the Licensor.
1.8 "Licensed Software" mean the Xintianyou 1.0, which include the Licensed
Program and Licensed Information.
1.9 "North China" shall mean Beijing and Tianjin Municipalities, Hebei and
Shanxi [CHINESE CHARACTERS] provinces and the Inner Mongolia autonomous
region.
1.10 "North-east China" shall mean the territory of Liaoning, Jilin and
Heilongjiang Provinces.
1.11 "North-west China" shall mean the provinces of Shanxi [CHINESE CHARACTERS],
Gansu and Qinghai, and the Ningxia and Xinjiang autonomous regions.
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1.12 "South-west China" shall mean the provinces of Sichuan, Guizhou and Yunnan,
Chongqin Municipality and the Tibet autonomous region.
1.13 "Territory" shall mean Ease China, North-east China, North China,
North-west China, South-west China and Central-south China.
1.14 "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 (i) Xxxxxx Networking a
license for North China, North-west China and South-west China, (ii)
Nanjing Xxxxxx a license for Central-south China and East China, and (iii)
Bianfeng Networking a license for North-east China, 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 FEES
3.1 In consideration of the license granted by the Licensor of the Licensed
Software, now (i) Xxxxxx Networking agrees to pay installation fee of RMB
720,000 to Shengqu; (ii) Nanjing Xxxxxx agrees to pay installation fee of
RMB 2,520,000 to Shengqu; and (iii) Bianfeng Networking agrees to pay fees
installation fee of RMB 360,000 to Shengqu.
3.2 Shengqu shall deliver the invoice to the Licensees within fifteen (15) days
after the receipt of such installation fees.
4 MONTHLY PAYMENTS
4.1 From the first month after the installation of the Licensed Software on the
Designated Computer, the Licensee shall in addition pay the Licensor a
revenue sharing fee, the calculation formula of which is: revenue sharing
fee = sales revenue realized by the Licensee through the use of computers
which have installed the Licensed Software x 5%.
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4.2 Subsequent to the installation and formal operation of the Licensed
Software, the Licensee 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.
4.3 Shengqu shall deliver the invoice to the Licensees within fifteen (15) days
after the receipt of such installation fees.
5 ORIGINALITY WARRANTY
5.1 The Licensor warrants that the Licensed Software does not infringe any
copyright, patent or trademark or proprietary information of any third
Party.
5.2 In the event of any legal proceedings or claims by a third party against
the Licensees 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 Licensees for any cost, expense
and loss and the litigation fees and attorney fees payable by the Licensees
according to the final court, provided that (a) the Licensees promptly
inform the Licensor of the claims relating to said infringements, (b) the
Licensees 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.
5.3 If the Licensees'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 Licensees 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.
5.4 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 Licensees for free without any
changes, and the Licensees still uses other versions;
(b) The program and data of the Licensed Software has been provided to the
Licensees based on thorough studying. The licensees uses the Licensed
Software together with other program or dada, and had the Licensees not
done so, said infringement would
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have been avoided. However, the Licensees fails to avoid the use of the
Licensed Software together with other program and data;
(c) The Licensees uses the Licensed Software on computers other than the
Designated Computer.
6 TERM AND TERMINATION
6.1 The term of this Agreement shall be one (1) years from date on which this
Agreement is signed by all parties hereto. During the term of this
Agreement the Licensees shall not unanimously terminate this Agreement.
6.2 The Software Licensing Agreement entered into by the Licensor and the
Licensees dated on December 28, 2004 will be terminated upon the Effective
Date.
7 APPLICABLE LAWS
This Agreement shall be governed by the laws of the People's Republic of
China.
8 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:
---------------------------------
Name: Chen Tianqiao
Title: Chief Executive Officer
SHANGHAI XXXXXX NETWORKING CO., LTD.
By:
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
NANJING XXXXXX NETWORKING CO., LTD.
By:
---------------------------------
Name: Tang Jun
Title: President
HANGZHOU BIANFENG NETWORKING CO., LTD.
By:
---------------------------------
Name: Wang Jingying
Title: Senior Vice President
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