SOFTWARE LICENSE AGREEMENT
Exhibit 4.34
This Software License Agreement (hereinafter referred to as “this Agreement”) is entered into by
and between the following two parties in Shanghai on March 1, 2007.
Party A/The licensor: Shanghai Linktone Internet Technology Co., Ltd.
Address: Xinlian Village, Malu Town Xxx Xxxx District, Shanghai
Party B/The licensee: Shanghai Weilan Computer Co., Ltd.
Address: No.558, Da-Zhi Road West, Ma-Lu Town, Xxx Xxxx District, Shanghai
The licensor and the licensee are each referred to as “either party”, and jointly referred to
as “the two/both parties”.
Whereas:
(1) The licensor is a wholly foreign owned company incorporated in Shanghai under the laws of PRC,
and owns the intellectual property and ownership in the “Linktone IVR Background Operating Software
System V1.0”, (hereinafter referred to as the “operating software”);
(2) The licensee is a wholly domestic invested company incorporated in Shanghai under the laws of
PRC, and has been approved by Shanghai Municipal Communications Administration to provide
information service (excluding Internet information service and telephone information service);
(3) The licensor permits the licensee to use the operating software and provide it with relevant
technical support service; whilst the licensee agrees to accept the authorization by the licensor
to use the operating software and pay related fees accordingly.
NOW THEREFORE, after friendly negotiation the two parties hereby agree as follows:
1. Licensed content and scope:
1.1 The licensor grants the licensee the right to use the aforesaid operating software.
1.2 Within the term of this Agreement, the licensor provides the licensee with the following
guarantees and support with regard to the use of the operating software:
1.2.1 Guarantee for maintenance and upgrading: The Licensor undertakes that it will correct all
mistakes and/or malfunction in the licensed operating Software, and provide maintenance support
service that is used in the operating software, including without limitation, the maintenance and
upgrading of the technology and content of the operating software.
1.2.2 Guarantee for safe operation of software: The Licensor shall provide support at any time
during the term hereof to ensure the safe operation of the operating software.
1.2.3 Guarantee for market demand and sales: The Licensor undertakes that, with its expertise in
the Operating software, it will offer technical assistance to the Licensee in respect of marketing
and sales support work.
1.3 The right to use the operating software under this Agreement shall be
non-transferable, sole and exclusive.
1.4 The right to use the operating software granted to the licensee under this Agreement shall be
effective only within the scope of value-added telecom service. The licensee agrees not to make use
of directly or indirectly, or authorize any other party to make use of, the aforesaid operating
software in any manner, unless otherwise provided under this Agreement.
1.5 The license to the licensee under this Agreement shall be effective only within the territory
of PRC. The licensee agrees not to make use of directly or indirectly, or authorize any other party
to make use of, the aforesaid cell phone game software within any other region.
2. Ownership and intellectual property:
The licensor particularly agrees and guarantees that it owns the entire intellectual property in
the operating software, and possesses the full power to grant the right to use of the operating
software to the licensee. Such rights are the whole rights that the owner of intellectual property
of the operating software shall enjoy, and will not infringe on the rights of any other party. The
licensor particularly guarantees that it has already gone through, or is going to go through
necessary formalities for registration of those relevant software products with competent
departments.
3. Charge and payment
Considering the fact that the right to use operating software and the service provided by the
licensor constitute an indispensable, significant component part for the sake of the licensee’s
provision of value-added telecom service; and that the development of value-added telecom service
that the licensor provides its end-users with is directly dependent, to a rather big extent, on the
quality of the operating software and technical service; and also that the licensor has invested a
lot of manpower and resource during development of the operating software; and with an eye to the
necessity of providing those service items and guarantees listed under the sub-clauses 1.2.1, 12.2
and 1.2.3 to the licensee for a long period of time within the term of this
Agreement, both parties agree that the licensee shall pay the following fees to the licensor as
stipulated under the following sub-clauses:
3.1 Within the period of time when the operating software is used as licensed, the licensee shall
pay 65% of its total revenue earned from provision of service to the licensor, as the charge for
software
use and access to relevant technical service.
3.2 The licensee shall, within the following 7 days after the ending of each month, provide the
licensor with the statement of its sales income of the cell phone game software in the preceding
month.
3.3 The licensee shall pay the charge for software use on a monthly basis. The licensee shall,
within the following 7 days after the ending of each month, pay the charge for software use with
regard to its factual sales income in the preceding month to the licensor.
3.4 Within the ensuing one month after expiration of this Agreement, the licensee shall, still as
per this Agreement, pay the entirety of the charge for software use which is payable but
outstanding with regard to the proceeds that it has earned prior to the date of expiration of this
Agreement, to the licensor.
3.5 Payment:
All payments that the licensee shall make to the licensor pursuant to this Agreement shall be made
in Renminbi into the following bank account via bank transfer:
Bank of deposits:
Address:
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Account number:
4. Software protection and confidentiality
4.1 Software protection
4.1.1 The licensee agrees to provide the licensor with necessary assistance to protect the
licensor’s ownership in aforesaid operating software. Once any third party claims compensation upon
such software, the licensor shall be able to, at its own discretion, respond to a lawsuit filed
with regard to such compensation in its own name, or in the licensee’s name or in both parties’
names. In case that any other third party commits any behavior that infringes upon the aforesaid
operating software, the licensee shall, within the limits of its own knowledge, immediately notify
the licensor in writing of the behavior that infringes upon the aforesaid trademark; only the
licensor shall have the right to decide whether to take any action against such infringement
behavior(s) or not.
4.1.2 The licensee agrees to make use of the aforesaid operating software only under this
Agreement, and not to make use of such operating software in any manner that is deemed by the
licensor as fraudulent or misleading or any other manner that jeopardizes the aforesaid operating
software or the business reputation of the licensor.
4.2 Confidentiality
4.2.1 The licensee shall keep all confidential data and information of the licensor that it knows
or gets in touch with for reason of being licensed to use the aforesaid operating software
(hereinafter referred to as “confidential information”) in secrecy; in addition, when this
Agreement is terminated, the licensee shall return all those files, documents and software that
have borne such confidential information to the licensor as requested by the licensor, or destroy
such files, documents and software on its own, and delete all the confidential information from all
relevant memory devices, and shall not continue to use such confidential information. The licensee
shall not disclose or transfer out such confidential information to any other third party, without
the written consent from the licensor.
4.2.2 Both parties agree that no matter whether this Agreement is amended, dissolved or terminated,
sub-clause 4.2.1 shall remain in effect further still.
5. Statements and undertakings
5.1 The licensor states and undertakes as follows:
5.1.1 The licensor is a company duly incorporated in accordance with, and validly existing under,
the laws of PRC.
5.1.2 The licensor signs and fulfills this Agreement within the limits of its corporate powers and
business scope; has already taken necessary corporate behaviors and been duly authorized; and has
already acquired the consent and approval from the third party and the competent governmental
agency, as well as having not violated the restrictions imposed by those laws & agreements that are
binding or governing.
5.1.3 Once signed under laws, this Agreement shall constitute obligations that are lawful,
effective and binding on the licensor, and can be enforced towards the licensor in line with the
terms of this Agreement.
5.1.4 The licensor owns the intellectual property and ownership in the cell phone game software
under this Agreement.
5.2 The licensee states and undertakes as follows:
5.2.1 The licensee is a company duly incorporated in accordance with, and validly existing under,
the laws of PRC, and has been approved by the competent department under the Chinese government to
provide information service (exclusive of Internet information service and telephone information
service).
5.2.2 The licensee signs and fulfills this Agreement within the limits of its corporate powers and
business scope; has already taken necessary corporate behaviors and been duly authorized; and has
already acquired the consent and approval from the third party and the competent governmental
agency, as well as having not violated the restrictions imposed by those laws & agreements that are
binding or governing.
5.2.3 Once signed, this Agreement shall constitute obligations that are lawful, effective and
binding on the licensee, and can be enforced towards the licensee in line with the terms of this
Agreement.
6. Promotion
Under any circumstances, if the licensee needs to use promotional materials regarding the operating
software, then it shall bear the production costs of such promotional materials. The licensor shall
own, solely and exclusively, those intellectual properties in all the promotional materials with
regard to the trademark under this Agreement, no matter that such promotional material have been
invented or used by the licensor or the licensee. The licensee agrees not to promote the public
awareness of, or advertise, the cell phone game software under this Agreement on any radio or TV
channel, newspapers, magazines, Internet or any other medium, without acquiring the prior written
consent from the licensor.
7. Term of this Agreement:
7.1 This Agreement is signed and takes into effect on the date specified at the beginning of this
context; and shall be expired on 31 December 2008, unless this Agreement is terminated earlier as
stipulated herein.
7.2 This Agreement may be renewed prior to the expiration date, after the licensor has confirmed
such a renewal in writing; in such a case, the two parties shall enter into another agreement.
However, the licensee shall not have the right to unilaterally confirm whether or not this
Agreement is to be renewed.
7.3 Within the term of this Agreement, the licensor shall be entitled to, at any time, send out a
written notice to the licensee for termination of this Agreement; and such notice for termination
will become effective commencing from the 30th day after it is sent out.
8. Amendments and termination of agreement:
Either party shall be entitled to send out a written notice to the other party, which has committed
any behavior in severe violation of this Agreement (including but not limited to violation of its
obligations described under Clause 2 or Clause 3 under this Agreement) and has further failed to
rectify its violation behavior as such within the ensuing 30 days after its receipt of a notice
sent out by the non-breaching party with regard to both the occurrence and existence of its
violation behavior, for terminating this Agreement immediately; however, the termination of this
Agreement shall not jeopardize any right or relief that the party asking for termination of this
Agreement has enjoyed according to laws or for any other reason.
9. Force majeure
9.1 “Force majeure” meanz all those events which cannot be foreseen at the time of signing this
Agreement, and whose occurrences and consequences cannot be avoided or overcome, and that occur
after the date when this Agreement is signed and impede either party from fulfilling a part or the
whole of this Agreement. Such events include earthquake, typhoon, flood, fire, warfare,
discontinuity of international or domestic transportation work, prohibition or any other similar
action taken by the government or any other public agency, infectious disease and any other
accidents that cannot be foreseen, avoided or overcome, including those events that are defined as
force majeure events according to the generally acknowledged business practices.
9.2 In case of occurrence of any force majeure event, either party shall be able to suspend
fulfillment of its obligations which are affected by such a force majeure event during the period
of postponement thus incurred, and postpone the time limit for its fulfillment of such obligations
accordingly; the time length of such a postponement shall be equal to the period of time when the
fulfillment of such obligations is suspended; and the affected party does not need to pay any
penalty or make any compensation in such a case.
9.3 The party that claims the occurrence of force majeure shall, within the ensuing 3 days after
occurrence of the force majeure event, notify the other party of the occurrence of such a force
majeure event in writing, plus the time length of its duration. Furthermore, the party that claims
the occurrence of force majeure shall make all rational efforts to terminate the force majeure.
9.4 In case of occurrence of any force majeure event, the two parties shall immediately negotiate
with each other to seek after an equitable method of settlement and make all rational efforts to
minimize the consequences of this force majeure event.
10. Notification
10.1 In case of occurrence of any matter that is likely to give rise to any dispute or affect the
fulfillment of this Agreement, either party shall have the obligation to notify the other party in
writing in an effective manner within a reasonablel period of time.
10.2 The effective modes for acknowledgement for receipt of a notice under this Agreement include:
registered mail, express mail, and courier delivery.
10.3 Any written notice, no matter sent by registered mail, express mail or courier delivery, shall
be deemed as being received on the date when the concerned recipient puts his or her signature on
acknowledgement for his or her receipt of such a notice, or on the 7th day after being sent out. If
the date of signing the acknowledgement for receipt of this notice comes earlier than the 7th day
after the notice is sent out, then the same notice shall be deemed as being received on the date of
signing the acknowledgement; and on the contrary, the notice shall be deemed as being received on
the 7th day after the notice is sent out. All notices shall be sent to the following addresses of
the two parties:
Party A’s address: 00/X, Xxxxx Xxxxx, Xx. 000, Xxxxxx Xxxx
Party B’s address: 00/X, Xxxxx Xxxxx, Xx. 000, Xxxxxx Xxxx
Either party that needs to change its address stated above must notify the other party in writing.
11. Settlement of disputes
11.1 In case that any disputes arise between the two parties with regard to their fulfillment of
relevant matters under this Agreement, they shall firstly endeavor to solve such disputes through
friendly negotiations. In case that they fail to solve such disputes after negotiating with each
other in a friendly manner, it is then necessary for them to render such disputes for settlement
via litigation or in a non-litigant way.
11.2 In case that the disputes between the two parties cannot be solved through friendly
negotiations, either party shall be entitled to institute legal proceedings to the People’s Court
in the place where the licensor is located.
11.3 The other matters under this Agreement than those in disputes shall be performed as per the
stipulations under this Agreement further still, during the course of litigation.
12. Governing laws
This Agreement shall be governed by, and interpreted in accordance with, the laws of the People’s
Republic of China.
13. Effectiveness of agreement
This Agreement shall come into effect immediately upon execution by the authorized representatives
of the two parties.
14. General provisions
14.1 Either party’s exemption of the other party (“the latter”) from the latter’s responsibility
for either violation or failure in fulfillment of any clause under this Agreement, or the latter’s
failure in fulfilling any clause or any right under this Agreement for one or more times must not
be construed as any amendment into any right under this Agreement and a waiver of its right of
investigating into the latter’s responsibility for any subsequent violation or failure in
fulfillment of this Agreement, or a waiver of any of such clauses or rights in this Agreement.
14.2 The ineffectiveness of any clause in this Agreement must not affect the effectiveness of any
other clause under this Agreement. In the event that any clause under this Agreement is found
ineffective, such a clause shall be deemed as having been superseded by a different clause which
caters for the original interests of the parties as much as possible and will not become
ineffective.
14.3 The licensee shall not transfer or lease out, put in pledge, or re-license this Agreement and
any of those rights and obligations that the licensor licenses to the licensee under this Agreement
to any third party, without acquiring the written consent upon doing so from the licensor;
meanwhile, the licensee shall not transfer out any portion of its economic interests that it has
acquired via licensing, or its rights under this Agreement, in any manner to any third party.
14.4 This Agreement and its appendixes shall constitute the entire agreements by and between the
parties under this Agreement with regard to the subject matter of this Agreement. In the event that
this Agreement conflicts with any of those prior understandings, statements, arrangements,
undertakings and agreements reached by and between both parties orally or in writing, the Agreement
shall prevail, and also supersede all those oral or written understandings, statements,
arrangements, undertakings and agreements that conflict with this Agreement.
14.5 The clause titles that are inserted into this Agreement have been given only for reading
facilitation purpose, and shall not be used to explain the clauses; besides, these titles do not
constitute any restrictions against the contents of this Agreement, either.
15. Supplementary provisions
15.1 This Agreement is written in two counterparts, each party to retain one.
15.2 Those documents and agreements with regard to licensing software that the two parties have
signed shall constitute the appendixes to this Agreement. These appendixes shall each constitute an
integral component part of this Agreement, and shall be of equal legal effect with this Agreement.
15.3 It is allowed to revise, amend or supplement this Agreement after the two parties have agreed
to do so through negotiations; in the meantime, such revision, amendment and supplementation into
this Agreement shall not become effective until having been signed in writing by the authorized
representatives of the two parties and also having borne the official seals of the two parties.
15.4 Those matters not covered under this Agreement shall be handled by and between the two parties
in conformity to the Contract Law of the People’s Republic of China and relevant laws and
regulations.
The licensor: Shanghai Linktone Internet Technology Co., Ltd.
Authorized representative: Sealed
The licensee: Shanghai Weilan Computer Co., Ltd.
Authorized representative: Sealed
