EXHIBIT 10.38
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement") is entered into as of
27 November, 2003 between the following two parties in Beijing.
THE LICENSOR: SHANGHAI HUITONG INFORMATION CO., LTD.
LEGAL ADDRESS: Xx.00, Xxxx 000, Xxxxxxx Xxxxxxxx, Xxxxxxxx
THE LICENSEE: SHANGHAI WEILAN COMPUTER CO., LTD.
LEGAL ADDRESS: Xx.000, Xxxxxxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
WHEREAS, the Licensor, a wolly-owned foreign enterprise registered in
Shanghai under the laws of PRC, which owns "(CHINESE CHARACTERS) EBS (CHINESE
CHARACTERS) V1.0" (CHINESE CHARACTERS) "(CHINESE CHARACTERS) "(CHINESE
CHARACTERS) PET (CHINESE CHARACTERS) V1.0"(the "Software") registered in China.
WHEREAS, the Licensee, a wholly domestic invested company registered in
Shanghai under the laws of the People's Republic of China (the"PRC"), is
licensed by Shanghai Municipal Telecommunication Management Bureau to carry on
the business of the information provision service(not include the Internet
Information Service and telephone information service);
WHEREAS, the Licensor desires to license the Softwares to the Licensee
in accordance with the terms and conditions set forth herein and the Licensee
wishes to accept the license on the terms and conditions set forth herein;
NOW THEREFORE, the parties agree as follows:
1. GRANT OF LICENSE
1.1 THE SOFTWARES
Upon the terms and conditions hereinafter set forth, the Licensor
hereby grants a general license to the Licensee part of or all of the Softwares,
and the Licensee hereby accepts the general license to use the Softwares. The
license hereunder is un-exclusive.
1.2 TERRITORY
1.2.1 The use of the Softwares granted by Licensor to Licensee
extends only to the scope of the business operated by Licensee
and the business relating to the value-added
telecommunications services operated by the Licensee in the
PRC. The Licensee agrees that it will not make, or authorize
any use, direct or indirect, of the Softwares by any other
means, unless there are opposite
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stipulations in this Agreement.
1.2.2 The license hereby granted extends only to the PRC. The
Licensee agrees that it will not make, or authorize any use,
direct or indirect of the Softwares in any other area.
2. TERMS OF PAYMENT
The Licensee agrees to pay to the Licensor a license fee and the detail
of license fee and the form of payment are set forth in Appendix 1.
3. GOODWILL
The Licensee recognizes the goodwill associated with the Softwares, and
acknowledges that the Softwares and all intellectual property rights therein and
goodwill pertaining thereto shall be the sole and exclusive property of the
Licensor, and that the Softwares have a secondary meaning in the mind of the
public.
4. CONFIDENTIALITY
4.1 The Licensee shall protect and maintain the confidentiality of
any and all confidential data and information acknowledged or
received by the Licensee by accepting licencing of the
Softwares from the Licensor (collectively the "Confidential
Information"). Upon termination or expiration of this
Agreement, the Licensee shall, at the Licensor's option,
return all and any documents, information or software
contained any of such Confidential Information to the Licensor
or destroy it and delete the Confidential Information from any
electronic devices and cease to use them. The Licensee shall
not disclose, grant or transfer any Confidential Information
to any third party without the Licensor's prior written
consent,.
4.2 Section 4.1 shall survive any amendment expiration or
termination of this Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Licensor represents and warrants as follows:
5.1.1 the Licensor is a company duly registered and validly
existing under the laws of the PRC;
5.1.2 the Licensor, subject to its business scope, has full
right, power, authority and capacity and all
necessary consents and approvals of any other third
party and government to execute and perform this
Agreement, which shall not be
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against any enforceable and effective laws or
contracts;
5.1.3 the Agreement will constitute a legal, valid and
binding agreement of the Licensor and will be
enforceable against the Licensor in accordance with
its terms upon its execution;
5.1.4 the Licensor has the exclusive ownership of the
Softwares.
5.2 The Licensee represents and warrants as follows:
5.2.1 the Licensee, subject to its business scope, is a
company duly registered and validly existing under
the laws of the PRC and is licensed by the relevant
PRC government to engage in the business of providing
information services(not include the Internet
Information Service and telephone information
service);
5.2.2 the Licensee has full right, power, authority and
capacity and all necessary consents and approvals of
any other third party and government to execute and
perform this Agreement, which shall not be against
any enforceable and effective laws or contracts;
5.2.3 the Agreement will constitute a legal, valid and
binding agreement of the Licensee and will be
enforceable against the Licensee in accordance with
its terms upon its execution.
6. THE LICENSOR'S RIGHT OF LICENCING AND PROTECTION OF THE LICENSOR'S
RIGHTS
6.1 The Licensee agrees that it will not during the term of this
Agreement, or thereafter, attack the right of licencing or any
rights of the Licensor in and to the Softwares or attack the
validity of this license or otherwise take or fail to take any
action that impairs such rights or license.
6.2 The Licensee agrees to assist the Licensor to the extent
necessary in the procurement of any protection or to protect
any of the Licensor's rights to the Softwares. In the event
any third party lodges a claim concerning the Softwares, the
Licensor, if it so desires may commence or prosecute any
claims or suits in its own name or in the name of the Licensee
or join the Licensee as a party thereto. In the event any
third party infringes on the above mentioned Softwares, the
Licensee shall notify the Licensor in writing of any
infringements or imitations by others of the Softwares which
may come to the Licensee's attention, and the Licensor shall
have the sole right to determine whether or not any action
shall be taken on account of any such infringements.
6.3 The Licensee further agrees to use the Softwares only in
accordance with this Agreement and shall not use such
Softwares in any way, which, in the opinion of
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the Licensor, is deceptive, misleading or in any way damages
such Softwares or the reputation of the Licensor.
7. QUALITY
The Licensee shall use its reasonable best efforts to improve the
quality of Software, so to protect and enhance the reputation of the Softwares.
8. PROMOTION MATERIAL
In all cases where the Licensee makes promotion material involving the
Softwares, the production cost of such material thereof shall be borne by the
Licensee. All copyrights or other intellectual property rights of such material
concerning the Softwares thereto shall be the sole and exclusive property of the
Licensor whether developed by the Licensor or the Licensee. The Licensee agrees
not to advertise or publicize any of the Softwares on radio, television, papers,
magazines, the Internet or otherwise without the prior written consent of the
Licensor.
9. EFFECTIVE DATE AND TERM
9.1 This Agreement has been duly executed by their authorized
representatives as of the date first set forth above and shall
be effective simultaneously. The term of this Agreement is ten
(10) years unless earlier terminated as set forth below.
However, the Licensor and the Licensee shall review this
Agreement every 3 months to determine whether any amendment to
the Agreement is necessary after considering the
circumstances.
9.2 This Agreement may be extended for an additional year if the
Licensor gives the Licensee its written consent of the
extension of this Agreement before the expiration of this
Agreement. However, the Licensee has no right to confirm such
extension.
10. RECORD FILING
Within three (3) months after the execution of the Agreement, the
Licensor shall make a record filing of the copy of the Agreement to the relevant
Software management authority of China.
11. TERMINATION
11.1 Termination on Expiration.
This Agreement shall expire on the earlier date of the date due or the
date when the Licensor's right of licensing attached in Appendix I,
unless this Agreement is
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extended as set forth above.
11.2 Early Termination
Without prejudice to any legal or other rights or remedies of the party
who asks for termination of this Agreement, any party has the right to
terminate this Agreement immediately with written notice to the other
party in the event the other party materially breaches this Agreement
including without limitation Section 6.1, 6.2 and 6.3 of this Agreement
and fails to cure its breach within 30 days from the date it receives
written notice of its breach from the non-breaching party.
During the term of this Agreement, the Licensor may terminate this
Agreement at any time with a written notice to the Licensee 30 days
before such termination.
11.3 Survival.
Article 3, 4, 6 and 16 shall survive after the termination or
expiration of this Agreement.
12. FORCE MAJEURE
12.1 Force Majeure, which includes acts of governments, acts of
nature, fire, explosion, typhoon, flood, earthquake, tide,
lightning, war, means any event that is beyond the party's
reasonable control and cannot be prevented with reasonable
care. However, any shortage of credit, capital or finance
shall not be regarded as an event of Force Majeure. The party
affected by Force Majeure shall notify the other party without
delay.
12.2 In the event that the affected party is delayed in or
prevented from performing its obligations under this Agreement
by Force Majeure, only within the scope of such delay or
prevention, the affected party will not be responsible for any
damage by reason of such a failure or delay of performance.
The affected party shall take appropriate means to minimize or
remove the effects of Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the
event of Force Majeure. After the event of Force Majeure is
removed, both parties agree to resume performance of this
Agreement with their best efforts.
13. NOTICES
Notices or other communications required to be given by any party
pursuant to this Agreement shall be written in English and Chinese and shall be
deemed to be duly given when it is delivered personally or sent by registered
mail or postage prepaid mail or by a recognized courier service or by facsimile
transmission to the address of the relevant
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party or parties set forth below.
Party A:Shanghai Huitong Information Co., Ltd.
Address: Xx.00, Xxxx 000, Xxxxxxx Xxxxxxxx, Xxxxxxxx
Party B: Shanghai Weilan Competer Co., Ltd.
Address:No.558, Luzhendazhi West Road, Jiading District, Shanghai.
14. NO ASSIGNMENT OR SUBLICENSE BY THE LICENSEE
This Agreement and all the rights and duties hereunder are personal to
the Licensee. The Licensee agrees that it will not assign, lease, pledge,
sublicense, or in any other way transfer the economic benefits of the license
granted hereby or any portion of the rights included therein to any third party
without the prior written consent of the Licensor.
15. SETTLEMENT OF DISPUTES
The parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement through friendly
consultation within 30 days after one party ask for consultation. In case no
settlement can be reached through consultation, each party can submit such
matter to China International Economic and Trade Arbitration Commission (the
"CIETAC"). The arbitration shall follow the current rules of CIETAC, and the
arbitration proceedings shall be conducted in Chinese and shall take place in
Shanghai. The arbitration award shall be final and binding upon the parties and
shall be enforceable in accordance as its terms.
16. APPLICABLE LAW
The validity, interpretation and implementation of this Agreement shall
be governed by the laws of PRC.
17. AMENDMENT AND SUPPLEMENT
Any amendment and supplement of this Agreement shall come into force
only after a written agreement is signed by both parties. The amendment and
supplement duly executed by both parties shall be part of this Agreement and
shall have the same legal effect as this Agreement.
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18. SEVERABILITY
Any provision of this Agreement which is invalid or unenforceable
because of violating the relevant laws in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
19. APPENDICES
The Appendices referred to in this Agreement are an integral part of
this Agreement and have the same legal effect as this Agreement.
20. OTHERS
This Agreement is executed by Chinese and English in duplicate, and in
case of confliction, the Chinese version is prevail.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be
duly executed on their behalf by a duly authorized representative as of the date
first set forth above.
THE LICENSOR: LINKTONE LTD.
Representative: /s/ Xxxxxxx Xxx Xxxx
THE LICENSEE: SHANGHAI WEILAN COMPUTER CO., LTD.
Representative: /s/ Xxx Xx
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APPENDIX 1
Licensee should pay Licensor License fee 10,000,000 per year. Licensor may waive
this fee in the further. The Licensor has the sole right to determine whether or
not to exempt the Licensee's duty to pay License fee.
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