EXHIBIT 10.68
MUSIC COPYRIGHT LICENSE AGREEMENT
AMONG:
SPEEDLINE ENTERPRISES LIMITED (PARTY A)
AND
SHANGHAI LINKTONE CONSULTING CO., LTD. AND ITS AFFILIATE
(PARTY B)
AND
SHANGHAI BIGIN DIGITAL TECHNOLOGY COMPANY LIMITED
(WARRANTOR)
Considering that Party A grants Party B a non-exclusive license to use its music
content, the parties hereto enter into this Music Copyright License Agreement
("AGREEMENT") and agree to the following:
I. LICENSED CONTENT
"LICENSED CONTENT" (as described in the Attachment) refers to all
pieces of music listed in the license statement issued by Party A to Party B in
connection with the cooperation contemplated hereunder during the term of this
Agreement.
II. ATTACHMENT TO LICENSED CONTENT
1. Attachment is part of this Agreement and is subject to all
terms and conditions provided herein.
2. License starting date is the date on which Party A provides
the master tape of licensed music piece to Party B. License term for any of the
pre-designated 400 music pieces is two years. The license term for the songs in
addition to the pre-designated 400 music pieces is one year. License term for
such Licensed Content is described in attachment of license statement.
3. Expiration of this Agreement shall not affect the calculation
of license ending date for the Licensed content provided by Party A to Party B
during the term of this Agreement. Party B shall pay to Party A downloading
license fee during the license term.
III. LICENSE PATTERN
It is agreed by Party A and Party B that the license contemplated
hereunder is a non-exclusive License.
IV. USE OF LICENSE
1. Party A grants Party B a license to re-play music files for
ring back tone (referred to as "COLOR RING DOWNLOADING" in China) with unlimited
number of times in digital or other applicable mode, for the downloading by
subscribers of the mobile phone operators in China (including China Mobile,
China Unicom, China Telecom, China Netcom and other possible mobile phone
operators) for ring downloading. (Value-added service of ring downloading by
mobile phone user means the ring downloading services provided by way of
connecting mobile phone line system to computer or peripheral systems).
2. Party A agrees that all Licensed Content is downloadable by
mobile phone users in the network and other platform integration operation area
lawfully owned and operated by the mobile phone operators who have established
cooperation with Party B.
3. demonstration Limitation: Party A agrees to provide
demonstrations of the Licensed Content in reasonable file pattern upon request
of users on the network or other platforms operated by the mobile phone
operators who have established cooperation with Party B. The length of such
demonstrations shall not exceed 30 seconds.
4. Party B shall formally notify Party A whenever Party B
connects with any location in the operation area in mainland China. Any use of
the Licensed Content without prior notice to Party A shall be deemed illegal
use.
5. Party B is licensed to use the Licensed Content only in such
pattern as agreed-upon in Section 1 of Article 4. Licensed Content shall not be
re-edited or recorded for public circulation, public performance, transmission
through networks or public communication. Any use of Licensed Content necessary
for the promotion of color ring business is subject to the prior written
approval of Party A.
V. TERM
1. The term of this Agreement shall be five years, as of January
1, 2004 until December 31, 2008.
2. Upon expiration, this Agreement may be extended by written
agreement of both Parties after negotiation.
VI. LICENSED AREA: MAINLAND CHINA (EXCLUDING HONG KONG, MACAU AND TAIWAN)
VII. COLLECTION OF LICENSE FEE
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Party B shall pay Party A an advance deposit (including music edition
and music recording fee) and a license fee for the music piece requested and
downloaded by users.
1. Advance Deposit
Advance deposit is RMB80 for each licensed piece of music.
Party B shall pay such deposit to Party A within 10 days after
delivery of the master tape by Party A. Such deposit may be
used to offset the share of license fee entitled to Party A.
If the share of license fee entitled to Party A is not enough
to offset such deposit upon expiration of this licensed term,
Party A is not required to return the deposit.
2. Downloading License Fee
Party B agrees to pay Party A 43% of the downloading license
fee collected from users for downloading each piece of music
under the Licensed Content after deducting the share entitled
to mobile phone operators and business tax, as the share of
license fee entitled to Party A.
VIII. PURCHASE AND SELECTION OF MUSIC
1. Party B shall book with Party A two weeks in advance for the
music piece the license of which it intends to purchase, and notify its music
requirements and number of pieces it desires.
2. Party A is obligated to provide to Party B professional advice
on music selection and edition based on market demand, development of music
popularity and current music repertory. Party A and Party B shall jointly
produce the best music catalogue and music composition with reference to
features of the downloadable music, in order to meet demand of the public.
3. Party B shall purchase at least 400 pieces of music for the
first time, the license term of which is two years. Party A shall deliver the
purchased pieces of music within two months. Subject to consent of the mobile
phone operators, Party B shall provide all of the music pieces on the color ring
platform for downloading by mobile phone users.
IX. STATEMENT AND SETTLEMENT
1. Statement
Party B shall mail to Party A the statement for operation of
the Licensed Content by way of electronic file within three
days upon Party B's receipt of monthly operation statement
issued by the mobile phone operators. Such statement shall
include the names or codes of the Licensed Content, number of
downloading times, taxable rate of royalty, and the percentage
of share to which the respective local mobile phone operators
is entitled.
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2. Statement Review
The statement described in the preceding paragraph is part of
this Agreement. Party A may request Party B to provide
additional materials or explanation, or to correct the
statement if the contents of the statement is challenged by
Party A. Party B shall cooperate with Party A's request within
30 days upon receipt of such request.
3. Payment Terms
(a) Party A, upon confirmation of the operation statement
provided by Party B, issue an invoice to Party B.
Party B shall transfer the relevant payment to the
account designated by Party A within 45 days upon
receipt of such invoice. (Party A's receiving account
No. is 020-17-000-333-1, receiving bank JIH SUN
INTERNATIONAL BANK, XX. 00 Xxxxx Xxxx X. Xx, Xxx 0
Xxxxxx, Xxxxxx, R.O.C).
(2) Party B is required to submit an application to the
State Administration of Foreign Exchange according to
related Chinese laws and regulations when making
payment of foreign exchange to Party A because the
account provided by Party A is an offshore account.
Party A agrees that any taxes, foreign exchange
translation loss or related handling fee incurred by
Party B in connection with such payment may be
deducted from the share of Renminbi revenue entitled
to Party A. Party B shall provide Party A with
related document or invoice.
X. The Licensed Content provided by Party A to Party B shall be provided
in CD form and list of words, which shall form an attachment to this
Agreement. If Party A and Party B elect not to extend this Agreement
upon its expiration, Party B shall immediately delete all of the
Licensed Content stored in the memory of the computer equipment (e.g.,
the server) for ring downloading.
XI. Any right that is not expressly by the license granted herein shall be
reserved by Party A. If Party B's action does not comply with any
provision herein, this Agreement shall not be so construed as Party A
having granted any implied license.
XII. TERMINATION
1. Any party may terminate this Agreement at its own discretion
during the term of this Agreement if the other party dissolves, closes, becomes
bankrupt, reorganizes, liquidates, or is involved in a mediation proceding.
2. If any party breaches this Agreement and fails to respond or
are non-compliance within 30 days upon receipt of written notice, the
non-breaching party may terminate this Agreement and demand damages from the
breaching party.
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XIII. LICENSE WARRANTY
1. Party A warrants that the music license contemplated hereunder
has complete license basis, and has the music copyright of the composer as well
as the neighboring rights of rendition and recording. Party B shall inform Party
A in writing immediately when Party B is charged by any third party for breach
of copyright in connection with the License Content provided hereunder, and
Party A is obligated to assist in addressing the charge. If Party B is obliged
to compensate such third party as determined by court judgment or settlement
acknowledged by Party A, Party A shall compensate Party B for all losses
incurred by Party B therefrom (including compensation to any third party,
attorney fees, etc.).
2. The preceding warranty clause of Party A is jointly warranted
by the Warrantor.
XIV. If any dispute occurs in connection with this Agreement, both parties
agree to submit the dispute to the Shanghai Arbitration Committee for
arbitration. The arbitration award is final and binding upon both
parties.
XV. The affiliate of Party B under this Agreement refers to Shanghai Weilan
Computer Co., Ltd. Subject to Party A's prior consent, Party B may add
or change its affiliate based on its business development.
XVI. Confidentiality
All terms and conditions provided hereunder shall be kept confidential
by the three parties hereto, and shall not be used as reference for other
business cooperation.
XVII. This Agreement is made in triplet and Party A, Party B and Warrantor
shall each hold a copy.
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PARTY A: SPEEDLINE ENTERPRISES LIMITED
Representative: /s/ Yenyung Li
Address:
(company seal)
PARTY B: SHANGHAI LINKTONE CONSULTING CO., LTD.
Representative: /s/ Xxxxxxx Xxx Xxxx
Address: Xxxxxxxx 0, Xxxxxx Xxxxx, Xx. 00, Xxxxxx Xxxxxx, Xxxxxxxx, P.R.C
Telephone: 00-00-00000000
(company seal)
WARRANTOR: SHANGHAI BIGIN DIGITAL TECHNOLOGY COMPANY LIMITED
Representative: /s/ Zeng Chunjiao
Address: Xx. 000, Xxxxxxx Xx, Xxxxxxxx
Telephone: 000-00000000
(company seal)
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