EXHIBIT 4.12
SOFTWARE LICENSING AGREEMENT
E-SALES SYSTEM
DECEMBER 28, 2004
SHENGQU INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD.
SHANGHAI XXXXXX NETWORKING CO., LTD.
NANJING XXXXXX NETWORKING CO., LTD.
HANGZHOU BIANFENG NETWORKING CO., LTD.
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SOFTWARE LICENSING AGREEMENT
THIS SOFTWARE LICENSING AGREEMENT (this "Agreement") is entered into by and
between the following Parties on December 28, 2004 in Shanghai:
(1) 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 Xxxx 000-0, Xxxxxxxx 0,
000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx Hi-Tech Park, Shanghai, the PRC
("Shengqu" or the "Licensor");
(2) 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");
(3) 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
(4) 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").
For the purpose of this Agreement, Xxxxxx Networking, Nanjing Xxxxxx and
Bianfeng shall be referred to collectively as the "Licensees".
RECITALS
WHEREAS, The Licensor owns the software program of Licensed Software (as defined
below);
WHEREAS, The Licensor and Xxxxxx Networking entered into a software licensing
agreement on December 9, 2003 (the "Original Software License Agreement"),
pursuant to which, Xxxxxx Networking has the right to install and operate the
Licensed Software on the Designated Computer and to grant to its customers the
right to use such Licensed Software;
WHEREAS, Nanjing Xxxxxx and Bianfeng desire to license the Licensed Software;
WHEREAS, The Licensor is willing to license the Licensed Software to Nanjing
Xxxxxx and Bianfeng in addition to Xxxxxx Networking.
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WHEREAS, Xxxxxx Networking and the Licensor wish to terminate Original Software
License Agreement and enter into this new software license agreement together
with Nanjing Xxxxxx and Bianfeng.
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 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.
1.3 "Licensed Software" mean the e-sales system 2.0, which include the
Licensed Program and Licensed Information.
1.4 "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.
1.5 "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 the Licensees.
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
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computer software, technical parameter, price list, design, software
documentation, manuals, models and account tables.
2 GRANT OF LICENSE AND LIMITATIONS
2.1 License to Use the Licensed Software. In accordance with the terms and
conditions hereof, the Licensor agrees to grant to the Licensees and the
Licensees agree to accept a nontransferable and non-exclusive license of
the Licensed Software, pursuant to which the Licensees 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 FEES
3.1 In consideration of the license granted by the Licensor of the Licensed
Software and that Xxxxxx Networking had paid all fees of RMB 6,000,000 to
the Licensor in accordance with the Original Software License Agreement,
now (i) Nanjing Xxxxxx agrees to pay installation fee of RMB 1,925,000 to
Xxxxxx Networking, and (ii) Bianfeng agrees to pay fees installation fee
of RMB 275,000 to Xxxxxx Networking.
3.2 Shengqu shall grant the Licensees the license and distribution right in
the specific regions from December 9,2005 to December 31, 2005. 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 15%.
4 MONTHLY PAYMENTS
The Licensees shall make monthly installation fees to Shengqu as set forth:
4.1.1 The Licensee shall pay the Licensor 50% of the installation fee within
three (3) days of the effective date of this Agreement;
4.1.2 The Licensee shall pay the Licensor the rest 50% of the installation fee
within five (5) days of providing of the Licensed Software by the Licensor
according to Article 3.1.
4.1.3 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.
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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 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.
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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 This Agreement will continue for successive one (1) year terms until
terminated by the Licensor providing thirty (30) days notice to the
Licensees of its intent to terminate this Agreement at the end of the term
hereof or the then-current term of this Agreement.
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.
[Remainder of the Page Intentionally Left Blank]
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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: Vice President
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