INTELLECTUAL PROPERTY LICENSE AND SOFTWARE TECHNOLOGY SERVICES AGREEMENT

Exhibit 10.25

EXECUTION VERSION

INTELLECTUAL PROPERTY LICENSE

AND

SOFTWARE TECHNOLOGY SERVICES AGREEMENT

THIS INTELLECTUAL PROPERTY LICENSE AND SOFTWARE TECHNOLOGY SERVICES AGREEMENT (this “Agreement”) is entered into as of July 29, 2011, by and between ALIBABA GROUP HOLDING LIMITED, a Cayman Island registered company (“Alibaba”), on the one hand, and 支付宝（中国）网络技术有限公司 (Xxxxxx.xxx Co., Ltd.), a Chinese limited liability company (“Opco”).

RECITALS

WHEREAS, Opco was formerly a Subsidiary (defined below) of Alibaba, during which time technology and other intellectual property necessary or useful for the operation of the Business (as defined herein) were developed by Alibaba and its Subsidiaries, including Opco;

WHEREAS, 浙江阿里巴巴电子商务有限公司 (Zhejiang Alibaba E-Commerce Co., Ltd.) (“HoldCo”), the corporation known to the parties as of the date hereof as Z51, now owns all of the equity of Opco;

WHEREAS, Alibaba, Holdco, Opco and certain other parties are entering into that certain Framework Agreement of even date herewith (the “Framework Agreement”), setting forth such parties’ agreements as to Opco’s continued operation of the Business and other matters; and

WHEREAS, in connection with the Framework Agreement, Alibaba, on behalf of itself and its Subsidiaries, has agreed to license to Opco certain technology and other intellectual property and to perform various software technology services for Opco and its Subsidiaries, effective as of the Effective Time (as defined herein).

NOW, THEREFORE, the parties to this Agreement, intending to be legally bound, agree as follows:

AGREEMENT

1. DEFINITIONS AND CONSTRUCTION

1.1 Definitions. For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following capitalized terms will have the meanings ascribed to them below. All other capitalized terms not otherwise defined in this Agreement have the meaning ascribed to them in the Framework Agreement.

(a) “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person; provided that, for the purposes of this definition, “controlling” (including with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Securities, by Contract or otherwise.

(b) “Alipay Software Ltd.” means 支付宝软件(上海)有限公司 (Alipay Software (Shanghai) Co. Ltd.), the corporation known to the parties as of the date hereof as Z52 which will become a wholly owned subsidiary of Opco IT on or before the Effective Time.

(c) “Subsidiary Sublicensee” has the meaning set forth in Section 2.4(a).

(d) “Alibaba Group” means Alibaba and its Subsidiaries.

(e) “Alibaba IT” means 阿里巴巴(中国)有限公司 (Alibaba (China) Co. Ltd.), the corporation known to the parties as of the date hereof as A50 and a wholly-owned Subsidiary of Alibaba.

(f) “Business” means the business of providing payment and escrow services, including: provision of payment accounts, processing, clearing, settlement, network and merchant acquisition services; pre-paid, credit or debit cards or accounts; escrow accounts and processing; and cash on delivery services, whether provided through online, mobile, electronic or physical means.

(g) “Business Product” means any product or service solely within the Business offered by Opco Group to its customers.

(h) “Confidential Information” has the meaning set forth in Section 9.1.

(i) “Dedicated Employees” means any employees of Opco IT and its Subsidiaries that, in each case, are dedicated on a full-time basis solely to the provision of the Software Technology Services and other technologies hereunder, in each such case to the extent that: (i) such employees are employed by Opco IT or any of its Subsidiaries, (ii) Opco IT and its Subsidiaries remain entities that are legally distinct from Alibaba and its other Subsidiaries, (iii) Opco IT and its Subsidiaries are under management separate and independent from the management of Alibaba and its other Subsidiaries (provided that the fact that a limited number of executives hold positions in both Opco IT and Alibaba will not, of itself, mean that management is not separate and independent), (iv) Opco IT and its Subsidiaries occupy premises physically distinct from those of Alibaba and its other Affiliates, (v) Opco IT’s and its Subsidiaries’ networks, electronic and physical document storage and email and similar systems remain segregated from those of Alibaba and its other Affiliates (other than systems used by Alibaba or its Affiliates to provide Alibaba Services (as defined in the Shared Services Agreement) pursuant to the Shared Services Agreement), and (vi) Opco IT and its Subsidiaries remain solely dedicated to the provision of Software Technology Services and other technologies to the Opco Group, the results of which Software Technology Services, and which other technologies, are not provided to Alibaba or any of its Subsidiaries, other than Opco IT and its Subsidiaries (provided that, for clarity, for purposes of this clause (vi), the use of such results and other technologies by Opco Group in providing Services (as defined in the Commercial Agreement) to Alibaba or its Subsidiaries under the Commercial Agreement shall not be deemed to be the provision of such results of Software Technology Services and other technologies). “Dedicated Employees” also means individual contractors of Opco IT and its Subsidiaries to the extent that such contractors, and Opco IT and the Subsidiaries engaging them, meet the foregoing criteria for Dedicated Employees, except that (A) such contractors are engaged as contractors, rather than employees, of Opco IT and its Subsidiaries and (B) such contractors will not be disqualified from meeting the requirement of being dedicated on a full-time basis solely to the provision of the Software Technology Services and other technologies hereunder merely because they engage in unrelated work for clients that are not Related Parties (as defined in the Framework Agreement) of Alibaba, Opco, Holdco or their Affiliates.

(j) “Effective Time” has the meaning set forth in the Framework Agreement.

(k) “End User License” has the meaning set forth in Section 2.4(c).

(l) “Enforcement Action” has the meaning set forth in Section 6.2(a).

(m) “Final Payment Date” has the meaning set forth in the Framework Agreement.

(n) “Governmental Authority” means any instrumentality, subdivision, court, administrative agency, commission, official or other authority of any country, state, province, prefect, municipality, locality or other government or political subdivision thereof, or any stock or securities exchange, or any multi-national, quasi-governmental or self-regulatory or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority.

(o) “Highly Sensitive Information” means information confidential to Opco, Opco IT or each of their Subsidiaries in the following categories: (i) user data, including Personal Information, that is not anonymized or aggregated; and (ii) algorithms, Source Code, Object Code, specifications, and technical documentation regarding system security, fraud and abuse protection systems and detection of illegal or unusual activities that, in each case, relate primarily to the Business. “Highly Sensitive Information” shall not, however, include any information which: (a) is or becomes commonly known within the public domain other than by breach of this Agreement or any other agreement that Opco, Opco IT or any of their Subsidiaries has with any Person; (b) is obtained from a third Person (other than Opco, Opco IT or any of their Subsidiaries) who is lawfully authorized to disclose such information free from any obligation of confidentiality; (c) is independently developed without reference to or use of any Highly Sensitive Information; or (d) is known to Alibaba or any of its Subsidiaries (other than Opco IT or any of its Subsidiaries) without any obligation of confidentiality prior to its receipt from Opco, Opco IT or any of their Subsidiaries).

(p) “Intellectual Property Rights” means all rights of the following types, which may exist or be created under the Laws of any jurisdiction in the world:

(i) rights associated with works of authorship, including exclusive exploitation rights, copyrights and moral rights, and all extensions, renewals, registrations and applications therefor (“Copyrights”);

(ii) rights in trademarks, trade names, service marks, service names and similar rights, and all registrations and applications therefor, as well as all goodwill embodied therein (“Trademarks”);

(iii) rights in domain names and uniform resource locators, and all registrations and applications therefor (“Domain Names”);

(iv) trade secret rights (“Trade Secrets”);

(v) patents and patent applications, including any continuations, divisions, reissues, and re-examinations, and other industrial property rights (“Patents”); and

(vi) all other proprietary rights in Technology.

(q) “IP Function Separation” has the meaning set forth in Section 6.1(c).

(r) “IP Termination Date” means the earlier to occur of (a) the completion of the IPO Transfer, if any, pursuant to Section 2.10(b) of the Framework Agreement, and (b) the Final Payment Date.

(s) “Laws” means any federal, state, territorial, foreign or local law, common law, statute, ordinance, rule, regulation, code, measure, notice, circular, opinion or executive order of any Governmental Authority.

(t) “Licensed IP” means, collectively, the Opco-Exclusive IP and Opco-Related IP.

(u) “Object Code” means the fully compiled, machine-readable version of a software program that can be executed by a computer and used by an end user without further compilation.

(v) “Opco-Exclusive Copyrights” means the Copyrights solely in the Opco-Exclusive Software or the Opco-Exclusive Other Materials.

(w) “Opco-Exclusive Domain Names” means the Domain Names registered in the name of Alibaba or a Subsidiary of Alibaba that are set forth in Exhibit B, as well as any Domain Name that is a New Opco Trademark/Domain Name registered or applied for in the name of Alibaba during the Term pursuant to Section 4.4 and that is added to Exhibit B, in each case that relate solely to the Business.

(x) “Opco-Exclusive IP” means, collectively, the Opco-Exclusive Copyrights, the Opco-Exclusive Software, the Opco-Exclusive Other Materials, the Opco-Exclusive Patents, the Opco-Exclusive Trademarks and the Opco-Exclusive Domain Names.

(y) “Opco-Exclusive Other Materials” means documentation, promotional materials, handbooks, and other copyrightable materials (other than software code) relating solely to the Business as of the Effective Time, owned by Alibaba or a Subsidiary of Alibaba and not used in the business of, and not in the possession of, Alibaba or any of its Subsidiaries (other than Opco IT and its Subsidiaries) at any time between January 1, 2009 and the Effective Time, as well as other documentation, promotional materials, handbooks, and other copyrightable materials (other than software code) authored solely by Dedicated Employees, or by Dedicated Employees and employees or Permitted Subcontractors of Opco and its Subsidiaries, during the Term in the course of the Dedicated Employees’ providing the Software Technology Services hereunder.

(z) “Opco-Exclusive Patents” means:

(i) the Patents owned by Alibaba set forth in Exhibits C-1, C-2 and C-3 that are based on inventions made solely by employees of the Opco Group, Opco IT, and/or any of their Subsidiaries;

(ii) any Patent owned by Alibaba that is subsequently filed or issued during the Term that claims an effective filing date based upon any of the Patents described in the foregoing clause (i), but only those claims in any such subsequently filed or issued Patent that are fully supported by the disclosure of one or more of the Patents described by the foregoing clause (i);

(iii) any Patent filed during the Term based on any invention made solely by Dedicated Employees during the Term in the course of providing the Software Technology Services hereunder;

(iv) any New Opco Patent filed during the Term based on any invention made solely by employees or contractors of Opco and/or an Opco Subsidiary and assigned to Alibaba pursuant to Section 4.4; and

(v) any Patent filed during the Term based on any invention made jointly by Dedicated Employees during the Term in the course of providing the Software Technology Services hereunder and at least one employee or contractor of Opco or an Opco Subsidiary.

(aa) “Opco-Exclusive Prosecution Function” has the meaning set forth in Section 6.1(b).

(bb) “Opco-Exclusive Software” means the software programs, in Source Code and Object Code form, (i) set forth in Exhibit A relating solely to the Business as of the Effective Time that are owned by Alibaba, Opco IT or their respective Subsidiaries and not used in the business of, and not in the possession of, Alibaba or any of its Subsidiaries (other than Opco IT and its Subsidiaries) at any time between January 1, 2009 and the Effective Time, and (ii) any new software code, authored solely by Dedicated Employees, or by Dedicated Employees and employees or Permitted Subcontractors of Opco and its Subsidiaries, during the Term in the course of the Dedicated Employees’ providing the Software Technology Services hereunder that is added to Exhibit A.

(cc) “Opco-Exclusive Trademarks” means the Trademarks owned by Alibaba or its Subsidiaries that are set forth in Exhibit D, as well as any Trademark that is a New Opco Trademark/Domain Name registered or applied for in the name of Alibaba during the Term pursuant to Section 4.4 that is added to Exhibit D, in each case that relate solely to the Business.

(dd) “Opco Group” means Opco and its Subsidiaries.

(ee) “Opco IT” means 支付宝(中国)信息技术有限公司 Alipay (China) Information Technology Co. Ltd., the corporation known to the parties as of the date hereof as Z53 and a wholly-owned Subsidiary of Alibaba.

(ff) “Opco Materials” has the meaning set forth in Section 3.3.

(gg) “Opco Non-Core IP” means software programs and other materials owned or licensable by Opco and its Subsidiaries of which copies (in Source Code or Object Code form) (i) are held by Alibaba or its Subsidiaries (other than Opco IT and its Subsidiaries) on or before the Effective Time, or (ii) are provided by Opco or its Subsidiaries (including Opco IT) to Alibaba or its Subsidiaries (other than Opco IT and its Subsidiaries) during the Term, but in either (i) or (ii), does not include software programs and related materials that are at the core of the business of Opco and its Subsidiaries of providing payment and escrow services to its customers.

(hh) “Opco-Related Copyrights” means the Copyrights, other than the Opco-Exclusive Copyrights, owned by Alibaba IT or its Subsidiaries in the Opco-Related Software and Opco-Related Other Materials.

(ii) “Opco-Related IP” means, collectively, the Opco-Related Copyrights, the Opco-Related Software, the Opco-Related Other Materials, and the Opco-Related Patents.

(jj) “Opco-Related Other Materials” means any documentation, promotional materials, handbooks, data, and other materials, other than the Opco-Exclusive Other Materials, that are owned by Alibaba, Alibaba IT or their Subsidiaries as of the Effective Time and that are used in or necessary for the operation of the Business as of the Effective Time.

(kk) “Opco-Related Patents” means the Patents, other than the Opco-Exclusive Patents, (i) owned by Alibaba or an Alibaba Subsidiary as of the Effective Time that are used in or necessary for the operation of the Business, or (ii) filed by Alibaba or an Alibaba Subsidiary during the Term that are used in or necessary for the operation of the Business.

(ll) “Opco-Related Software” means (i) the software programs set forth in Exhibit G that are owned by Alibaba IT as of the Effective Time, and (ii) any bug fixes, error corrections, updates and upgrades (including improvements) to the software programs set forth in clause (i) authored by employees or contractors of Alibaba IT or its Subsidiaries (or owned by Alibaba IT or its Subsidiaries) that Alibaba or its Subsidiaries deploy generally for use by Alibaba or its Subsidiaries.

(mm) “Opco IP/Technology Providers” means Alibaba IT and Opco IT and their respective Subsidiaries.

(nn) “Opco IP/Technology Providers Addendum” mean one or more agreements, in the forms mutually agreed to by the parties hereto prior to the Effective Time and when agreed to attached hereto as Exhibit F, between Alibaba and/or an Opco IP/Technology Provider, on the one hand, and Opco and/or an Opco Subsidiary, on the other, whereby, as contemplated by this Agreement, Alibaba and/or the Opco IP/Technology Provider: (a) grants to Opco or an Opco Subsidiary a license to the Opco-Exclusive IP and Opco-Related IP owned by Alibaba or such Opco IP/Technology Provider; and/or (b) agrees to provide Software Technology Services to Opco or an Opco Subsidiary.

(oo) “Permitted Subcontractors” has the meaning set forth in Section 2.4(b).

(pp) “Person” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization, a group, a Governmental Authority or any other type of entity.

(qq) “Personal Information” means any information that identifies, or could reasonably be used by or on behalf of the recipient of such information to identify, any natural person as an individual, including names, addresses, bank or other account numbers, and national identification numbers, but excludes anonymized and aggregated information that cannot be used to identify any Person or individual.

(rr) “PRC” has the meaning set forth in the Framework Agreement.

(ss) “Qualified IPO” has the meaning set forth in the Framework Agreement.

(tt) “Renminbi” means the lawful currency of the People’s Republic of China.

(uu) “Royalty” has the meaning set forth in Section 5.1.

(vv) “Shared Services Agreement” has the meaning set forth in the Framework Agreement.

(ww) “Source Code” means the human-readable version of a software program that can be compiled into Object Code, including programmer’s notes and materials and documentation, sufficient to allow a reasonably skilled programmer to understand the design, logic, structure, functionality, operation and features of such software program and to use, operate, maintain, modify, support and diagnose errors pertaining to such software program.

(xx) “Software Technology Services” means the services described in Exhibit E, or as otherwise mutually agreed to in writing by the parties.

(yy) “Software Technology Services Fee” has the meaning set forth in Section 5.2.

(zz) “Subsidiary” means, with respect to any Person, each other Person in which the first Person (i) owns or controls, directly or indirectly, share capital or other equity interests representing more than fifty percent (50%) of the outstanding voting stock or other equity interests, (ii) holds the rights to more than fifty percent (50%) of the economic interest of such other Person, including interest held through a VIE Structure or other contractual arrangements, or (iii) has a relationship such that the financial statements of the other Person may be consolidated into the financial statements of the first Person under applicable accounting conventions.

(aaa) “Technology” means any or all of the following:

(i) works of authorship including computer programs, whether in Source Code and Object Code, and whether embodied in software, firmware or otherwise, documentation, designs, files, net lists, records and data;

(ii) inventions (whether or not patentable), improvements and technology;

(iii) proprietary and confidential information, including technical data and customer and supplier lists, trade secrets and know how;

(iv) databases, data compilations and collections and technical data; and

(v) all instantiations of the foregoing in any form and embodied in any media.

(bbb) “Term” has the meaning set forth in Section 13.1.

(ccc) “Transaction Documents” means, collectively, (i) this Intellectual Property License and Software Technology Services Agreement; (ii) the Framework Agreement; and (iii) the Commercial Agreement, the Shared Services Agreement, the IPCo Note Agreement, the Ratification and Release Agreement, the Legal Mortgages, and the Real Estate Option Agreement, each as defined in the Framework Agreement.

(ddd) “Unrelated Third Parties” has the meaning set forth in the Framework Agreement.

(eee) “VIE Structure” means the investment structure a non-PRC investor uses when investing in a PRC company or business that typically operates in a regulated industry. Under such investment structure, the onshore PRC operating entity and its PRC shareholders enter into a number of Contracts with the non-PRC investor (or a foreign invested enterprise incorporated in the PRC) and/or its onshore WFOE pursuant to which the non-PRC investor achieves control of the onshore PRC operating entity and also consolidates the financials of the onshore PRC entity with those of the offshore non-PRC investor.

(fff) “WFOE” means wholly foreign owned enterprise formed under the Laws of the PRC.

1.2 Construction

(a) For purposes of this Agreement, whenever the context requires: the singular number will include the plural, and vice versa; the masculine gender will include the feminine and neuter genders; the feminine gender will include the masculine and neuter genders; and the neuter gender will include the masculine and feminine genders.

(b) The Parties agree that no rule of construction to the effect that any ambiguities are to be resolved against the drafter shall be employed in the interpretation of this Agreement and in the event an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the Parties.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

2. LICENSE GRANTS

2.1 Opco-Exclusive IP.

(a) Subject to the terms and conditions of this Agreement, Alibaba hereby grants to Opco, and shall cause Opco IT and its Subsidiaries to grant to Opco, pursuant to an Opco IP/Technology Providers Addendum, the following worldwide, non-transferable and non-assignable (except pursuant to Section 15.8), non-sublicensable (except pursuant to Section 2.4) rights and licenses during the Term:

(i) under the Opco-Exclusive Patents it owns, (a) to make, have made (subject to Section 2.4(e)), use, sell, offer for sale, import, export and otherwise commercialize Business Products solely in the course of conducting the Business, and (b) to make, have made and use any device or process, in each case solely internally and solely in the course of conducting the Business;

(ii) under the Opco-Exclusive Trademarks it owns, and subject to Section 2.6, to use the Opco-Exclusive Trademarks solely in connection with the sale, offer for sale, license and provision of Business Products in the course of conducting the Business;

(iii) under the Opco-Exclusive Domain Names it owns, to use the Opco-Exclusive Domain Names solely in connection with the sale, license, offer for sale or license and provision of Business Products in the course of conducting the Business; and

(iv) under the Opco-Exclusive Copyrights it owns, to reproduce, distribute, modify, prepare derivative works of, perform and display the Opco-Exclusive Software and Opco-Exclusive Other Materials, solely in connection with the sale, offer for sale or license, license, making, using and provision of Business Products in the course of conducting the Business.

(b) The rights and licenses granted to Opco pursuant to Section 2.1(a) are exclusive to the following (but only to the following) extent:

(i) The rights and licenses granted to Opco pursuant to Section 2.1(a)(ii) and (iii) are exclusive (even as to Alibaba and its Subsidiaries) throughout the world.

(ii) The exclusivity of the rights and licenses granted to Opco pursuant to Section 2.1(a)(i) and (iv) is co-extensive with, and in no case broader than, the scope of the activities that Alibaba and its Subsidiaries are expressly prohibited by Section 7.13 of the Framework Agreement from performing, but only if and to the extent that, and only for as long as, Alibaba and its Subsidiaries are so prohibited. The exclusivity of rights and licenses under Section 2.1(a)(i) and (iv) shall not preclude Alibaba or its Subsidiaries from engaging in any activities not expressly prohibited by Section 7.13 of the Framework Agreement, including engaging third Persons for the procurement or provision of (and having such third Persons provide) services in accordance with Section 2.6 of the Commercial Agreement. Nonetheless, other than in connection with engaging such third Persons, Alibaba and its Subsidiaries shall not have the right to grant to any third Person a license within the scope of Section 2.1(a)(i) or (iv). For the avoidance of doubt, the foregoing shall not affect any obligations or rights of Alibaba or its Subsidiaries pursuant to Section 7.13 of the Framework Agreement.

2.2 Opco-Related IP. Subject to the terms and conditions of this Agreement, Alibaba hereby grants to Opco, and shall cause its relevant Subsidiaries to grant to Opco, pursuant to an Opco IP/Technology Providers Addendum, the following worldwide, non-exclusive, non-transferable and non-assignable, non-sublicensable (except pursuant to Section 2.4) rights and licenses during the Term:

(a) under the Opco-Related Patents it owns, (i) to make, have made (subject to Section 2.4), use, sell, offer for sale, import, export and otherwise commercialize Business Products solely in the course of conducting the Business, and (ii) to make, have made and use any device or process, in each case solely internally and solely in the course of conducting the Business; and

(b) under the Opco-Related Copyrights its owns, to (i) reproduce, distribute, modify, prepare derivative works, perform and display, in each case solely internally, the Opco-Related Software and the Opco-Related Other Materials, and (ii) to distribute, perform and display the Opco-Related Software, solely in Object Code format, and the Opco-Related Other Materials, in each case solely to the extent permitted pursuant to Section 2.4, and, with respect to both of clauses (i) and (ii), solely in connection with the sale, license or other provision of Business Products in the course of conducting the Business.

2.3 Alibaba Delivery Obligation. At any time during the Term, upon Opco’s reasonable request in writing, Alibaba, Alibaba IT or a Subsidiary of Alibaba IT will deliver to Opco copies of the Opco-Related Software (in both Source Code and Object Code form) and bug fixes, error corrections, updates and upgrades (including improvements) developed after the Effective Time and included in the Opco-Related Software licensed under Section 2.2, in the form actually developed or owned by Alibaba, Alibaba IT or a Subsidiary of Alibaba IT. For clarity, any such bug fixes, error corrections, updates or upgrades (including improvements) provided hereunder will be provided “as-is” and “as available.”

2.4 Sublicensing

(a) Opco Subsidiaries. Subject to this Section 2.4(a), Opco may sublicense its rights under Sections 2.1 and 2.2 to the Opco-Exclusive IP and the Opco-Related IP to an Opco Subsidiary (a “Subsidiary Sublicensee”). Any such sublicense of rights to a Subsidiary Sublicensee must be granted pursuant to an enforceable, written agreement with such Subsidiary Sublicensee that (i) requires, to the extent necessary to enable Opco to comply with the ownership provisions set forth in this Agreement, each such Subsidiary Sublicensee to assign to Opco all right, title and interest in and to any Intellectual Property Rights arising from or related to the exercise of such Subsidiary Sublicensee’s rights thereunder, and (ii) contains terms that are at least as protective of Alibaba’s or the applicable Opco IP/Technology Provider’s rights in, and confidentiality and Source Code security with respect to, the Opco-Exclusive IP and the Opco-Related IP as those contained in this Agreement (each a “Sublicense Agreement”). Opco shall provide Alibaba with complete and accurate copies of all Sublicense Agreements.

(b) Subcontractors. Subject to Opco’s compliance with Sections 7.03(c) and 7.13(b) of the Framework Agreement and with Section 3.3 of the Commercial Agreement, Opco may sublicense any of its rights to the Opco-Exclusive Patents, the Opco-Exclusive Trademarks, the Opco-Exclusive Software, the Opco-Exclusive Other Materials, and the Opco-Related Other Materials to third Person subcontractors engaged by Opco or an Opco Subsidiary in connection with the conduct of the Business (“Permitted Subcontractors”), solely to the extent necessary to permit the Permitted Subcontractors to perform on behalf of Opco or an Opco Subsidiary the services for which the Permitted Subcontractors were engaged. Any such engagement of Permitted Subcontractors shall be pursuant to an arm’s-length agreement that (i) requires, to the extent necessary to enable Opco to comply with the ownership provisions set forth in this Agreement, each such Permitted Subcontractor to assign to Opco all right, title and interest in and to any Intellectual Property Rights arising from or related to the exercise of such Permitted Subcontractor’s rights thereunder, and (ii) contains terms that are at least as protective of Alibaba’s or the applicable Opco IP/Technology Provider’s rights in, and confidentiality and Source Code security with respect to, the Opco-Exclusive Patents, the Opco-Exclusive Trademarks, the Opco-Exclusive Software, the Opco-Exclusive Other Materials, and the Opco-Related Other Materials as those contained in this Agreement (each a “Subcontractor Agreement”). Any Subcontractor Agreement permitting any use of an Opco-Exclusive Trademark by a Permitted Subcontractor shall obligate the Permitted Subcontractor to comply with the applicable trademark and brand usage guidelines for such Opco-Exclusive Trademarks and shall provide that all goodwill arising from that Permitted Subcontractor’s use of any Opco-Exclusive Trademarks inures to the benefit of Alibaba or a designated Alibaba Affiliate, and Opco shall enforce these terms against any Permitted Subcontractor.

(c) End Users. Opco and Opco Subsidiaries may distribute certain elements of the Opco-Exclusive Software, the Opco-Related Software, the Opco-Exclusive Other Materials and the Opco-Related Other Materials comprising client-side end user software and related documentation and materials to Opco’s and its Subsidiaries’ end user customers (“Opco End Users”) and sublicense to Opco End Users the limited right to use or reproduce such Opco-Exclusive Software, Opco-Related Software, Opco-Exclusive Other Materials and Opco-Related Other Materials, solely in Object Code in the case of software and solely as incorporated in or otherwise a part of a Business Product. Any distribution or sublicense to an Opco End User of the Opco-Exclusive Software, the Opco-Related Software, the Opco-Exclusive Other Materials and/or the Opco-Related Other Materials must be pursuant to an enforceable agreement with such Opco End User containing terms that are at least as protective of Alibaba’s or the applicable Opco IP/Technology Provider’s rights in the Opco-Exclusive Software, Opco-Related Software, the Opco-Exclusive Other Materials and/or the Opco-Related Other Materials as those contained in this Agreement (each, an “End User License”). In addition, in an End User License, Opco may grant Opco End Users who are merchants a non-exclusive, non-transferable, non-assignable and revocable sublicense to use the Opco-Exclusive Trademarks in connection with such Opco End User’s use of Business Products, solely in connection with Opco’s or the Opco Subsidiary’s conduct of the Business. Opco and its Subsidiaries shall require that all Opco End Users comply with all applicable trademark and brand usage guidelines and that all goodwill arising from any Opco End User’s use of the Opco-Exclusive Trademarks inures to the benefit of Alibaba or a designated Alibaba Subsidiary, and Opco or the applicable Opco Subsidiary shall enforce these terms against any Opco End User.

(d) Opco’s Rights and Obligations. Each Sublicense Agreement, Subcontractor Agreement and End User License entered into by Opco or an Opco Subsidiary in connection with the exercise of its rights and obligations under this Agreement shall not contain any provision that is inconsistent with the terms of this Agreement. For the avoidance of doubt, (i) any rights and responsibilities performed or provided by Subsidiary Sublicensees, Permitted Subcontractors or Opco End Users shall be deemed to be performed by Opco, and (ii) Opco shall be responsible and liable for any breach of the terms and conditions of any Sublicense Agreement, Subcontractor Agreement or End User License by any Subsidiary Sublicensee, Permitted Subcontractor or Opco End User, as applicable, to the same extent as if breach were committed by Opco.

(e) Have Made Rights. The “have made” rights granted in Section 2.2(a) shall apply only to Business Products which (i) have designs originating with and owned by Opco or an Opco Subsidiary and (ii) are sold or otherwise transferred or disposed of by the “have made” manufacturer only to Opco or its Subsidiaries.

2.5 Restrictions. Opco acknowledges that the Source Code of the Opco-Exclusive Software and the Opco-Related Software constitutes and contains Trade Secrets of Alibaba and its Subsidiaries, and, in order to protect such Trade Secrets and other interests that Alibaba or its Subsidiaries may have in the Opco-Exclusive Software or the Opco-Related Software, Opco shall not, and shall not permit any third Person to, except as expressly authorized in this Agreement:

(a) transfer, sublicense (other than pursuant to Section 2.4), disclose, distribute or otherwise expose the Source Code of the Opco-Exclusive Software or the Opco-Related Software to any third Person other than an Subsidiary Sublicensee or a Permitted Subcontractor in accordance with Section 2.4; or

(b) disassemble, decompile or reverse engineer any of the Opco-Exclusive Software or the Opco-Related Software provided to Opco only in Object Code form, nor permit any third Person to do so, except to the extent such restrictions are prohibited by Law.

Alibaba’s and its relevant Subsidiaries’ license of Intellectual Property Rights pursuant to this Section 2 is granted:

(x) only if such Intellectual Property Rights are owned exclusively by Alibaba and/or its relevant Subsidiaries, as applicable, and may be licensed under applicable Law pursuant to this Section 2 without the need to obtain the consent or approval of any co- or joint owner of such Intellectual Property Rights;

(y) solely to the extent of Alibaba’s and/or its relevant Subsidiary’s right to grant such license; and

(z) only if Alibaba’s and/or its relevant Subsidiary’s grant of such license does not incur any obligation to pay royalties or other consideration to any third Person (except for payments between Alibaba and its relevant Subsidiary, or payments from Alibaba or its relevant Subsidiary to their respective employees or contractors for the use of the Intellectual Property Rights made or created by or for Alibaba, the relevant Alibaba Subsidiary, or such employees or contractors while employed or retained by Alibaba or its relevant Subsidiary).

2.6 Use of Trademarks

(a) Trademark Usage Guidelines. The use by Opco and any Subsidiary Sublicensee of the Opco-Exclusive Trademarks shall at all times adhere to Alibaba’s, the Opco IP/Technology Provider’s or Opco’s, as applicable, then-current trademark or brand usage guidelines, as such guidelines may be revised during the Term by Alibaba, an Opco IP/Technology Provider or Opco. Upon Alibaba’s request, Opco shall provide Alibaba with samples of advertising and promotional materials developed by or for Opco or an Opco Subsidiary and using the Opco-Exclusive Trademarks in order for Alibaba to assess compliance with this Section 2.6(a). In the event of any breach with respect to Opco’s or a Subsidiary Sublicensee’s failure to adhere to the then-current applicable Alibaba, Opco IP/Technology Provider or Opco trademark or brand usage guidelines, Opco or its Subsidiary, as applicable, shall immediately cease all use of the materials not conforming with such brand usage guidelines and shall cure, or cause to be cured, within thirty (30) days, any breach with respect to Opco’s or a Subsidiary Sublicensee’s use thereof. Opco shall not use, nor permit the use of, the Opco-Exclusive Trademarks in any manner that could otherwise reasonably be expected to impair, tarnish, dilute or otherwise damage the value and goodwill associated with Opco-Exclusive Trademarks.

(b) No Adverse Claim. Opco shall not, and shall not authorize any third Person to, at any time during the Term, assert any claim or interest in, or take any action which may in any way:

(i) adversely affect the validity or enforceability of,

(ii) result in the harm or misuse of, bring into disrepute, or adversely affect Alibaba’s or any Alibaba Subsidiary’s rights or interest in and to, or

(iii) result in obtaining registrations in or otherwise challenge the validity of, or Alibaba’s or any Alibaba Subsidiary’s ownership of or rights in:

the Opco-Exclusive Trademarks and/or any other Trademarks that are derivative of or similar to any Trademarks (including the Opco-Exclusive Trademarks) owned, held, or licensed by Alibaba or any Alibaba Subsidiary, both prior to and after the Effective Time, including any Trademarks commencing with the letters “ALI.”

(c) Goodwill. All goodwill arising from Opco’s or a Subsidiary Sublicensee’s use of the Opco-Exclusive Trademarks will inure solely to the benefit of Alibaba or the applicable Alibaba Subsidiary, and Opco and any applicable Opco Sublicensee shall transfer and assign and do hereby transfer and assign to Alibaba or the applicable Alibaba Affiliate designated by Alibaba on an ongoing basis all such goodwill arising from the use of the Opco-Exclusive Trademarks permitted hereunder.

2.7 Grant Back.

(a) Subject to the terms and conditions of this Agreement, Opco, on behalf of itself and its Subsidiaries, hereby grants (and agrees to grant and cause Opco and its Subsidiaries to grant) to Alibaba and its Subsidiaries during the Term a non-exclusive, irrevocable, worldwide, royalty-free, non-transferable (except to a successor of Alibaba in connection with a merger or consolidation, or to a transferee of Alibaba in connection with the transfer of all or any substantial portion of the assets of Alibaba and its Subsidiaries), right and license, under all Patents, if any, owned or licensable by Opco or any of Opco’s Subsidiaries during the Term (“Opco-Retained IP”) to make, have made, use, sell, offer for sale, import, export and otherwise commercialize any products and services, including engaging third Persons by Alibaba or its Subsidiaries for the procurement by Alibaba or its Subsidiaries of (and having such third Persons provide) services for the benefit of Alibaba and/or its Subsidiaries. For avoidance of doubt, such third Persons will have immunity under such Patents only to the extent they are providing services for the benefit of Alibaba and/or its Subsidiaries and not for services provided to other customers of such third Persons. For clarity, the parties acknowledge that any New Opco Patents, if they are owned solely by Alibaba or assigned to Alibaba as required by Section 4.4(a), and not owned by Opco or any of Opco’s Subsidiaries, will be subject to the provisions of this Agreement relating to Opco-Exclusive Patents and not to this Section 2.7.

(b) Subject to the terms and conditions of this Agreement, Opco, on behalf of itself and its Subsidiaries, hereby grant (and agree to grant and cause Opco and its Subsidiaries to grant) to Alibaba and its Subsidiaries during the Term a non-exclusive, irrevocable, worldwide, royalty-free, non-transferable (except to a successor of Alibaba in connection with a merger or consolidation, or to a transferee of Alibaba in connection with the transfer of all or any substantial portion of the assets of Alibaba and its Subsidiaries), right and license to reproduce, distribute, modify, prepare derivative works, perform and display the Opco Non-Core IP, in each case solely in connection with the sale, license or provision of products and services of Alibaba and its Subsidiaries. Such right and license (x) includes the right to have such activities performed on behalf of Alibaba and its Subsidiaries by third Persons and (y) includes the rights to perform, display and distribute to merchants, distributors, customers, and other participants in the businesses of Alibaba and Alibaba Subsidiaries the portions, if any, of the Opco Non-Core IP intended for use by such merchants, distributors, customers, or other participants. Any such license to merchants, distributors, customers, and other participants shall be on the same terms that Alibaba and its Subsidiaries use for the licensing of their own accompanying software and other materials. Notwithstanding anything to the contrary set forth in this Section 2.7(b), Alibaba and its Subsidiaries shall not disclose any Highly Sensitive Information to any third Persons, except user data to the extent that (i) disclosure of such data is required for the purpose of engaging a third Person to provide services comparable to the Services (as defined in the Commercial Agreement) (provided that such third Person shall not use such data for any other purpose), (ii) disclosure of such data to such third Person in accordance with this Agreement does not violate applicable Law, and (iii) disclosure of such data to such third Person in accordance with this Agreement does not violate the terms of use or terms of service under which such data was collected.

(c) This Section 2.7: (i) does not require that Opco or any Opco Subsidiary deliver any Technology, including Opco Non-Core IP, to Alibaba or its Subsidiaries and (ii) does not relieve Alibaba or its Subsidiaries from its obligations under Section 7.13 of the Framework Agreement.

2.8 No Other Grant. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right, license or covenant from Alibaba or any Alibaba Subsidiary to Opco or any Opco Subsidiary, or from Opco or any Opco Subsidiary to Alibaba or any Alibaba Subsidiary.

2.9 Injunctive Relief. Opco acknowledges that any material breach of the provisions of this Section 2 may result in irreparable harm to Alibaba and Alibaba’s Subsidiaries, and in such event the exact amount of damages will be difficult to ascertain and the remedies at law for such breach may not be adequate. Accordingly, in the event of any material breach of the provisions of this Section 2 by Opco or any Opco Subsidiaries, Alibaba, in addition to any other relief available to it at law, in equity or otherwise, shall be entitled to seek temporary and permanent injunctive relief restraining Opco or any Opco Subsidiaries from engaging in the conduct constituting such material breach, without the necessity of proving actual damages or posting a bond or other security.

3. SERVICES

3.1 Performance of Software Technology Services. Opco IT and its Subsidiaries shall perform the Software Technology Services for the Opco Group. Except as provided for in Section 3.3, Opco IT and its Subsidiaries shall, at their sole cost and expense, provide all tools, equipment, personnel and physical facilities required for the performance of the Software Technology Services, unless otherwise agreed to by the parties in writing. To the extent that Opco IT or any of its Subsidiaries requires access to the sites, facilities, network or computer systems of Opco or an Opco Subsidiary in order to perform the Software Technology Services, Opco IT and its Subsidiaries shall comply and cause its personnel to comply with Opco’s or the applicable Opco Subsidiary’s standard health and safety, security, privacy, and other policies and procedures that are provided by Opco or the applicable Opco Subsidiary to Opco IT or its Subsidiaries.

3.2 Reports. At Opco’s reasonable request, Opco IT shall provide periodic written reports to Opco with respect to Opco IT’s and its Subsidiaries’ performance of the Software Technology Services. In addition, Opco IT shall promptly notify Opco of any material technical or developmental problems which may arise in the performance of Opco IT’s or its Subsidiaries’ duties under this Section 3.

3.3 Opco Responsibilities. In connection with the Software Technology Services, Opco and the applicable Opco Subsidiaries shall perform such duties and tasks as may be reasonably required to allow Opco IT and its Subsidiaries to perform the Software Technology Services. Opco and the applicable Opco Subsidiaries shall provide Opco IT and its Subsidiaries with access to Opco’s or the applicable Opco Subsidiaries’ sites, facilities, network or computer systems as reasonably required by Opco IT and its Subsidiaries to perform the Software Technology Services. Subject to Section 9.4, Opco and the applicable Opco Subsidiaries shall also make available to Opco IT and its Subsidiaries any data, information and any other materials required by Opco IT or its Subsidiaries to perform Software Technology Services (collectively, “Opco Materials”).

3.4 No Further Obligations. Opco IT and its Subsidiaries shall have no obligation during the Term to provide any services other than the Software Technology Services, and no other obligation to provide any such services except as expressly set forth in this Section 3, unless otherwise agreed by the parties in writing.

4. OWNERSHIP

4.1 Licensed IP. Subject to the express licenses granted in this Agreement, as between the parties, Alibaba or its Subsidiaries will retain exclusive right, title and interest in and to the Licensed IP, and all Intellectual Property Rights subsisting therein. There are no implied licenses under this Agreement, and all rights not expressly granted hereunder are reserved. Opco and Opco’s Subsidiaries shall not delete or in any manner alter any Copyright, Trademark, Patent, confidentiality or other proprietary rights notices appearing on the Licensed IP as delivered to Opco or an Opco Subsidiary. Opco and Opco’s Subsidiaries shall reproduce such notices on all copies they make of the Licensed IP.

4.2 By Alibaba. As between the parties, Opco IT or its Subsidiaries will exclusively own all right, title and interest in and to any Technology of any kind developed solely by the Dedicated Employees of Opco IT or its Subsidiaries in connection with performing the Software Technology Services (collectively “Opco IT Materials”), including all Intellectual Property Rights subsisting therein. If the Opco IT Materials include or constitute modifications, customizations, enhancements or extensions to the Opco-Exclusive Software, the Opco-Related Software, the Opco-Exclusive Other Materials and the Opco-Related Other Materials, Opco will have rights and licenses to such modifications, customizations, enhancements or extensions to the same extent that it has rights and licenses to the underlying Opco-Exclusive Software, Opco-Related Software, Opco-Exclusive Other Materials and the Opco-Related Other Materials, respectively.

4.3 Ownership of Enhancements. Subject to Section 4.4, the parties agree that, as between the parties, all modifications, enhancements and derivative works of the Opco-Exclusive Software, the Opco-Related Software, the Opco-Exclusive Other Materials and the Opco-Related Other Materials created by (or by a third Person on behalf of) Opco or a Subsidiary Sublicensee under the licenses granted in Section 2.1 or 2.2 and otherwise in accordance with this Agreement will be exclusively owned by Opco or the relevant Subsidiary Sublicensee.

4.4 New Patents, Trademarks and Domain Names.

(a) Any new Patents applied for or issued during the Term based on any invention made solely by employees or contractors of Opco and/or employees or contractors of an Opco Subsidiary during the Term (“New Opco Patents”) will be owned by Alibaba and for the purposes of this Agreement will be deemed Opco-Exclusive Patents.

(b) Opco shall not, and shall cause all Subsidiaries of Opco not to, adopt, use (except for any use of the Opco-Exclusive Trademarks expressly authorized by Section 2.1), create, file, register, seek to register, cause to be registered, or conduct any business using any Trademarks or Domain Names that are derivative of or confusingly similar to any Trademarks (including the Opco-Exclusive Trademarks) or Domain Names owned, held, or licensed by Alibaba or any Alibaba Subsidiary, or otherwise used in connection with any conduct of any business by Alibaba or any Subsidiary of Alibaba, both prior to and after the Effective Time (the “Alibaba Marks”). Notwithstanding the foregoing, if any Alibaba Xxxx, Opco-Exclusive Trademark, or any Trademark or Domain Name that is derivative of or confusingly similar to any Alibaba Xxxx, Opco-Exclusive Trademark or Opco-Exclusive Domain Name (each, a “Similar Xxxx/Domain Name”), other than any Trademark or Domain Name required by applicable Law to be held or registered in the name of Opco or an Opco Subsidiary, or any application therefor, is filed or registered by Opco or any Opco Subsidiary during the Term, then such Similar Xxxx/Domain Name shall be assigned by Opco or the applicable Opco Subsidiary to Alibaba pursuant to this Section 4.4 and shall be exclusively owned by Alibaba. Opco hereby assigns, and causes each Opco Subsidiary to assign, to Alibaba, all of Opco’s and such Opco Subsidiary’s rights, title and interest in and to any and all Similar Marks/Domain Names, whether now existing or in the future created. The provisions of this Section 4.4(b) apply during the Term and, after the Term, shall survive but only with respect to the creation, filing, registration, seeking to register, causing to be registered, use and assignment of Trademarks or Domain Names that (1) commence with the letters “ALI” (other than Trademarks and Domain Names that contain the word “ALIPAY” and make no other use of the letters “ALI”) or (2) contain the word “TAOBAO,” or (3) contain the word “KOUBEI,” or (4) are derivative of or confusingly similar to any of the foregoing.

(c) If during the Term Opco or an Opco Subsidiary desires to have filed or registered any new Trademark or Domain Name that (i) includes the word “ALIPAY” or (ii) is derivative of any other Opco-Exclusive Trademark set forth in Exhibit D (each such Trademark or Domain Name within the scope of clause (i) or (ii), a “New Opco Trademarks/Domain Name”), in each case to the extent any such Trademark or Domain Name is not required by applicable Law to be held or registered in the name of Opco or an Opco Subsidiary, then, subject to Alibaba’s agreement, such New Opco Trademark/Domain Name will be filed, registered (at Opco’s expense) and solely owned by Alibaba during the Term of this Agreement, and for the purposes of this Agreement will be deemed to be an Opco-Exclusive Trademark or Opco-Exclusive Domain Name, as applicable, upon being added to the applicable Exhibit hereto. For purposes of the foregoing, Alibaba’s agreement shall not be unreasonably withheld or delayed to the extent such desired New Opco Trademark/Domain Name does not contain any component (other than the word “ALIPAY” or product marks included in the Opco-Exclusive Trademarks set forth in Exhibit D that are not confusingly similar to or derivative of other Trademarks owned, held or licensed by Alibaba or any Alibaba Subsidiary) that is derivative of or confusingly similar to any Trademarks or Domain Names owned, held, or licensed by Alibaba or any Alibaba Subsidiary (including any Trademarks or Domain Names commencing with the letters “ALI”, other than as used in “ALIPAY”), or otherwise used in connection with any conduct of any business by Alibaba or an Alibaba Subsidiary, prior to and after the Effective Time.

(d) Opco and each Opco Subsidiary shall assist Alibaba in every reasonable way, at Opco’s expense (except with respect to maintaining Similar Xxxx/Domain Names), to obtain, secure, perfect, maintain, defend and enforce all Intellectual Property Rights with respect to the New Opco Patents, Similar Xxxx/Domain Name and New Opco Trademark/Domain Names. The prosecution of and registration for any New Opco Patent or New Opco Trademark/Domain Name will be executed pursuant to Section 6.1. The enforcement of any New Opco Patent will be executed pursuant to Section 6.2. Every twelve (12) months during the Term, or upon either party’s reasonable request, the parties shall amend this Agreement by updating Xxxxxxxx X, X-0, X-0, X-0 or D, as applicable, to add such newly issued, filed or registered New Opco Patents and New Opco Trademark/Domain Name.

(e) Except to the extent Alibaba is acting at the request of Opco or an Opco Subsidiary in filing, registering, seeking to register, or causing to be registered a Trademark or Domain Name, Alibaba shall not, and shall cause all its Subsidiaries not to, file, register, seek to register, or cause to be registered, or conduct any business using any Trademarks or Domain Names that contain the word “ALIPAY.”

4.5 Amendment of Opco-Exclusive IP. Exhibits A, B, C-1, C-2 and C-3 and D of this Agreement shall be amended and/or supplemented as follows:

(a) Every twelve (12) months, or more frequently from time to time as reasonably requested by Opco or Alibaba, to add any Opco-Exclusive Software, Opco-Exclusive Other Materials or Opco-Exclusive Patents authored or made (as applicable) by Dedicated Employees during the preceding twelve (12) months; and

(b) As set forth in Section 4.4(d).

4.6 By Opco. As between Alibaba and Opco, Opco will retain its right, title and interest in and to any Opco Materials owned by Opco, including all Intellectual Property Rights of Opco subsisting therein; provided, however, that Opco agrees to grant and does hereby grant to Alibaba and any applicable Alibaba Subsidiary a limited, royalty-free, non-exclusive, non-transferable (except to a successor in connection with a merger or consolidation of Alibaba or the applicable Alibaba Subsidiary, or to a transferee in connection with the transfer of all or any substantial portion of the assets of Alibaba) right and license to use such Opco Materials if and for so long as, and only to the extent, such right and license is necessary in order for Alibaba or any of its Subsidiaries to carry out any obligations pursuant to this Agreement.

5. FEES AND PAYMENT

5.1 Royalties for Licensed IP. Opco-Exclusive IP and Opco-Related IP owned by Alibaba is licensed royalty-free until such time as Alibaba, in its sole discretion, decides to charge a royalty. In consideration for the licenses granted pursuant to Section 2 with respect to Opco-Related IP owned by Alibaba IT, Opco-Exclusive IP and Opco-Related IP owned by Alibaba or any of its other Subsidiaries, if Alibaba in its sole discretion decides to charge an aggregate royalty therefor, Opco shall pay to Alibaba IT and to Alibaba, if Alibaba, in its sole discretion, decides to charge a royalty, ongoing royalties calculated pursuant to the following formula (the “Royalty”) in accordance with this Section 5:

Royalty = consolidated revenue of the Opco Group multiplied by R, where

“R” means a percentage to be agreed between Opco and Alibaba IT (and Alibaba, if in its sole discretion it decides to charge a royalty).

5.2 Fees and Expenses for Software Technology Services.

(a) In consideration for Opco IT’s and its Subsidiaries’ performance of the Software Technology Services and for the licenses of Opco-Exclusive IP and Opco-Related IP owned by Opco IT and its Subsidiaries, Opco shall pay to Opco IT and its Subsidiaries an aggregate fee calculated in accordance with the following formula (the “Software Technology Services Fee”) in accordance with this Section 5:

Software Technology Services Fee = Alibaba Costs plus Income Share (each as defined below) minus the Royalty.

(b) “Alibaba Costs” and “Income Share” shall have the meanings and shall be determined as set forth below:

(i) “Alibaba Costs” means the consolidated pre-tax costs and expenses of Opco IT and its Subsidiaries incurred in the course of providing the Software Technology Services.

(ii) “Income Share” means an amount equal to the product of the Income Multiplier multiplied by (the consolidated pre-tax income of the Opco Group before taking into account the Royalty and the Software Technology Services Fee minus the Alibaba Costs). Notwithstanding the foregoing, in no event shall the Income Share be less than zero.

(iii) The “Income Multiplier” shall initially be equal to 0.499 (reflecting the existing relative function/risk/asset profile of the parties) and shall be subject to downward adjustment as calculated in Subsection (v) as a result of, and effective from and after the date of, one or more Adjustment Events.

(iv) “Adjustment Event” means the issuance of new equity capital:

(A) by Holdco, solely for cash, but solely to the extent that Holdco contributes the cash proceeds raised in such issuance to Opco as equity capital, in which case only the amount so contributed shall be counted for purposes of the calculations in Subsection (d), or

(B) by Opco, for cash or as consideration for strategic acquisitions or other commercial arrangements,

in each case to Unrelated Third Parties on arm’s-length, commercial terms or on terms otherwise approved in writing by the Independent Directors pursuant to the procedures set forth in Section 7.11 of the Framework Agreement.

(v) (A) If an Adjustment Event results from Opco’s issuance of new equity capital pursuant to Subsection (iv)(B) above, the Income Multiplier in effect before giving effect to the Adjustment Event shall be reduced to equal:


New Income Multiplier = Old IM – (Old IM * (New Capital/Total Capital)), where:

New Income Multiplier	=	the Income Multiplier after giving effect to the Adjustment Event

Old IM	=	the Income Multiplier before giving effect to the Adjustment Event

New Capital	=	the equity capital of Opco issued in the Adjustment Event

Total Capital	=	the total equity capital of Opco outstanding after giving effect to the Adjustment Event.

For example, if the Income Multiplier before the Adjustment Event is 0.499, Opco has 100 units of equity capital outstanding before the Adjustment Event and it issues 20 new units in the Adjustment Event, the new Income Multiplier would be (0.499 – (0.499 * (20/120)) = 0.416.

(B) If an Adjustment Event results from Holdco’s issuance of new equity capital pursuant to Subsection (iv)(A) above, the Income Multiplier in effect before giving effect to the Adjustment Event shall be reduced to equal:


New Income Multiplier = Old IM – (Old IM * (New Capital/Total Capital)), where:

New Income Multiplier	=	the Income Multiplier after giving effect to the Adjustment Event

Old IM	=	the Income Multiplier before giving effect to the Adjustment Event

New Capital	=	the cash proceeds from the Adjustment Event that are contributed by Holdco to Opco

Total Capital	=	the Equity Value of Opco prior to the Adjustment Event plus the amount of New Capital so contributed.

For example, if the Income Multiplier is 0.499, Opco has an Equity Value of US$2 billion prior to the Adjustment Event and Holdco contributes cash proceeds of $100 million from the Adjustment Event to Opco, the new Income Multiplier would be (0.499 – (0.499 * ($100 million/$2.1 billion)) = 0.475.

(vi) Notwithstanding the foregoing or the occurrence of one or more Adjustment Events, the Income Multiplier shall never be reduced below 0.3 during the Term. For the avoidance of doubt, in no event will the issuance of any new equity capital by either Holdco or Opco to officers, directors, management, employees or consultants of Holdco, Opco or any of their respective Subsidiaries result in any adjustment to the Software Technology Services Fee hereunder.

(vii) All income statement items of the Opco Group, Opco IT and its Subsidiaries will be determined in accordance with International Financial Reporting Standards and will be subject to audit pursuant to Section 5.5.

5.3 Royalty and Service Fee Reporting and Payment Terms. Within sixty (60) days of the end of each Opco fiscal year, Opco IT shall provide to Opco (a) a report detailing with reasonable specificity the basis for the Alibaba Costs, and (b) such additional information as Opco may reasonably request describing and further evidencing the calculation of the Alibaba Costs. Within ninety (90) days after the end of each Opco fiscal year, Opco shall pay to Alibaba IT the Royalty owed during such fiscal year, and Opco shall pay to Opco IT the Software Technology Services Fee owed during such fiscal year. Concurrently with such payments, Opco shall provide to Alibaba, Alibaba IT and Opco IT (a) a report detailing with reasonable specificity the basis for the Royalty payment, (b) a report detailing with reasonable specificity the basis for the Software Technology Services Fee, (c) true and complete income statements of the revenues and expenses of the Opco Group reflecting the consolidated pre-tax income of the Opco Group during the applicable fiscal year, and (d) such additional information as Alibaba, Alibaba IT or Opco IT may reasonably request describing and further evidencing the calculation of the Royalty payment and/or Software Technology Fee, as applicable. Opco shall pay all amounts due under this Agreement in Renminbi in the manner to be further agreed by the parties.

5.4 Taxes. Each party shall bear the taxes applicable to it in connection with this Agreement, including but not limited to turnover tax, business tax, value-added tax, income tax, profits tax or other taxes.

5.5 Books and Records; Audit Rights.

(a) Opco, the other members of the Opco Group and Opco IT shall each maintain (and cause to be maintained) complete and accurate books and records, in accordance with International Financial Reporting Standards, for the purpose of supporting and documenting the Royalty and the Software Technology Services Fee payable by Opco, and as otherwise reasonably necessary to confirm Opco’s and Opco IT’s compliance with the terms and conditions of this Agreement. All such books and records will be retained at each respective company’s, or its applicable Subsidiary’s, principal place of business for a period of at least three (3) years after the payments to which they pertain have been made. Opco’s and Opco IT’s books and records will be open for inspection and audit during such three (3) year period for the purpose of verifying the accuracy of the payments and charges made hereunder.

(b) The parties shall conduct, once per fiscal year upon reasonable advance written notice to Opco and Opco IT respectively, a joint audit of the consolidated financials of Opco, the other members of the Opco Group and Opco IT for the purposes of calculating the Software Technology Services Fee and the Royalty. The auditor for such audit will be Ernst & Young or another internationally recognized auditor agreed to by the parties (Ernst & Young or such other agreed auditor, the “Auditor”), and the Auditor shall generate a reasonably detailed report, sufficient to document the accuracy of the applicable payments and charges made by Opco, the other members of the Opco Group and Opco IT, and any over- or under-payments or charges. The report will be simultaneously provided to Opco, Opco IT and Alibaba.

(c) If any audit discloses a shortfall in Royalty payments or Software Technology Services Fee payments made during the period audited, Opco shall pay Alibaba IT such underpaid Royalty or Opco IT such underpaid Software Technology Services Fee promptly thereafter.

(d) If any audit discloses that Opco IT overcharged Opco for the Software Technology Services, Alibaba IT shall credit the excess amount against the following year’s Royalty or Opco IT shall credit the excess amount against future Software Technology Services Fee, as agreed by the parties.

(e) Each entity’s books and records for any applicable period may be audited or investigated only once, provided that in the event any such audit or investigation reveals an underpayment of Royalty or any miscalculation of the Software Technology Service Fee hereunder, Alibaba or Opco may, in its discretion, conduct one (1) additional audit or investigation of such entity’s books and records, according to the procedures set forth in this Section 5.5, in the twelve (12) months following the audit or investigation that revealed the underpayment or miscalculation. For clarity, neither party shall be required to disclose to the other, its auditors, pursuant to this Section 5.5, any Source Code, any materials or information protected by attorney client, work product or similar privileges, or any information that the other Person or its auditors or investigators, as the case may be, is not permitted to access pursuant to applicable Law. Before beginning its investigation, the Auditor shall execute a confidentiality agreement with Opco that (A) limits the disclosure to Alibaba of information obtained by the firm as part of the audit or investigation, to the results of the audit or investigation, the determinations of the firm in connection therewith, and the basis for such determinations, but (B) does not permit the disclosure to Alibaba of any Personal Information, any Source Code or information that Alibaba is not permitted to access in accordance with this Agreement pursuant to applicable Law.

5.6 Disputed Royalty or Charges. In the event Alibaba and Opco, or their applicable Subsidiaries, after reasonable consultation between representatives of each party, cannot agree on the proper amounts to be paid and/or credited between Opco IT, Opco and Alibaba IT, after conducting any audit as described in Section 5.5, the dispute will be finally settled in accordance with the dispute resolution procedures set forth in Section 15.6.

5.7 Conduct of Business. Without limitation to any provision of the Framework Agreement, Opco shall ensure that, during the Term, in no event will any aspects of the Business (other than any Software Technology Services provided by Opco IT and its Subsidiaries pursuant to this Agreement) be conducted by any Person that is not included in the Opco Group.

5.8 Independent Directors. Recipient shall elect to have the Auditor conduct a joint audit, and shall exercise Recipient’s other rights under this Section 5, if and to the extent so requested by the Independent Directors.

6. INTELLECTUAL PROPERTY PROSECUTION AND ENFORCEMENT

6.1 IP Prosecution and Registration.

(a) Alibaba shall have the sole control and discretion over the filing for, prosecution and maintenance of any Opco-Related IP.

(b) Alibaba shall have the first right, at its option, but subject to the exceptions set forth in Section 6.1(c), to control at its own expense the filing for, and prosecution and maintenance of, any Opco-Exclusive IP (“Opco-Exclusive Prosecution Function”). For so long as there are personnel employed or engaged by Alibaba or its Subsidiaries (or operating under the management or supervision of a manager or supervisor employed or engaged by Alibaba or its Subsidiaries) who have responsibility for patent applications, domain name registrations, and/or trademark registrations of Opco or its Subsidiaries, or that comprise Opco-Exclusive IP (as the parties acknowledge to be the case as of the Effective Time), such personnel will (i) continue to have access to the prosecution files and docket system to review the status of any filings for, and prosecution of the, Opco Exclusive IP and (ii) have the responsibility and an obligation to raise with Opco and Alibaba any objections to the manner in which any Opco-Exclusive IP is being handled, including whether and how any Opco-Exclusive Patents, Opco-Exclusive Domain Names or Opco-Exclusive Trademarks are being filed for, prosecuted and/or maintained. Alibaba shall, at Opco’s request and at reasonable intervals, provide Opco with information reasonably requested by Opco regarding the status of filing, prosecution and maintenance of any Opco-Exclusive Patents, Opco-Exclusive Domain Names or Opco-Exclusive Trademarks, or allow appropriate Opco personnel to directly access such information (in either event, permitting the appropriate Opco personnel’s or Opco’s outside counsel reasonable access to the files, or copies of the files, of the Opco-Exclusive Patents, Opco-Exclusive Domain Names and Opco-Exclusive Trademarks) and considering, in good faith, any suggestions or recommendations such personnel or counsel may have with respect to the conduct of the prosecution and maintenance of such Opco Exclusive-Patents, Opco-Exclusive Domain Names, and Opco-Exclusive Trademarks.

(c) If Opco establishes its own Intellectual Property Rights group capable of handling the filing for, or prosecution or maintenance of, patent applications, domain names, and/or trademark registrations (“IP Function Separation”), the parties shall, at the request of Opco or Alibaba, discuss in good faith a process and procedures by which such group will assume responsibility for the Opco-Exclusive Prosecution Function. The parties acknowledge that if such process and procedures authorize Opco to take actions in the name of Alibaba or its Affiliates, such process and procedures will include reasonable protections for Alibaba and its Affiliates.

(d) If, after but notwithstanding the IP Function Separation, Opco elects not to assume responsibility for the Prosecution Function, Alibaba will (i) at Opco’s request, at reasonable intervals, provide Opco with information reasonably requested by Opco regarding the status of filing, prosecution and maintenance of any Opco-Exclusive Patents, Opco-Exclusive Domain Names or Opco-Exclusive Trademarks, or (ii) allow appropriate Opco personnel to access such information (e.g., through access to Alibaba’s docket). If Opco personnel do not have such access, and Alibaba then elects to abandon, dedicate to the public, or otherwise allow to lapse any Opco-Exclusive Patent, Opco-Exclusive Domain Name or Opco-Exclusive Trademark, Alibaba shall use commercially reasonable efforts to notify Opco of such election, and Opco shall then have the right, at Alibaba’s election, (i) to undertake the prosecution and maintenance of such Opco-Exclusive Patent, Opco-Exclusive Domain Name or Opco-Exclusive Trademark, at Opco’s own expense, in the name of Alibaba, or (ii) to receive an assignment to Opco, subject to Section 2.7(a), of Alibaba’s entire right, title and interest in and to such Opco-Exclusive Patent, Opco-Exclusive Domain Name or Opco-Exclusive Trademark, together with the right to recover any damages for past infringement of any such Opco-Exclusive Patent. If Alibaba elects to allow Opco to prosecute an Opco-Exclusive Patent, Opco-Exclusive Domain Name or Opco-Exclusive Trademark in the name of Alibaba, such prosecution shall be subject to Alibaba’s approval, which approval shall not be unreasonably withheld. In any event, Opco shall, at Alibaba’s reasonable request, provide Alibaba with reasonable information regarding the status of any applications or registrations for which Opco has undertaken the prosecution or maintenance or which Alibaba has assigned to Opco. Until such time as Alibaba elects to abandon, dedicate to the public, or otherwise allow to lapse any Opco-Exclusive Patent, Opco-Exclusive Domain Name or Opco-Exclusive Trademark, Alibaba will, at Opco’s reasonable request, use commercially reasonable efforts to include notifications in its applicable Intellectual Property dockets, and to instruct its outside counsel responsible for Intellectual Property prosecution to include in its applicable Intellectual Property dockets maintained on behalf of Alibaba, that no Opco-Exclusive Patent, Opco-Exclusive Domain Name or Opco-Exclusive Trademark expressly identified as such in the applicable docket should be abandoned, dedicated to the public or otherwise allowed to lapse without providing advanced notice to Opco.

(e) Notwithstanding the foregoing, no failure of Alibaba to provide to Opco any notice or other information contemplated, or of Alibaba or its outside counsel to include any notifications in any Intellectual Property docket pursuant to this Section 6 shall create any liability on the part of Alibaba or any of its Affiliates in excess of Twenty-Five Thousand United States Dollars (US$25,000) per patent or patent application, not to exceed Xxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$125,000) per patent family.

6.2 Patent Enforcement. Alibaba will have the sole control and discretion over the enforcement or defense of any Opco-Related Patent. In the event that Opco reasonably believes that any Opco-Exclusive Patent is being infringed by a third Person, Opco shall promptly notify Alibaba in writing, or in the event that a declaratory judgment action is brought against Opco with respect to an Opco-Exclusive Patent (or a reexamination request if filed against an Opco-Exclusive Patent), it shall promptly notify Alibaba in writing.

(a) As between the parties hereto, Alibaba shall have the initial right (but not the obligation) to control the enforcement of the Opco-Exclusive Patents, or defend any declaratory judgment action against Opco (or reexamination request) with respect thereto (each, for purposes of this Section 6.2, an “Enforcement Action”). All recoveries obtained by Alibaba from an Enforcement Action pursuant to this Section 6.2(a) will be first used to reimburse Alibaba for its out-of-pocket litigation expenses (including but not limited to any attorneys’ fees and court costs) in connection with the Enforcement Action and one hundred percent (100%) of any remaining recoveries will go to Opco. For clarity, any such recoveries shall be included in the consolidated pre-tax income of the Opco Group for the applicable fiscal year in which they are accrued for the purposes of the calculation of the Royalty and Software Technology Services Fee pursuant to Section 5. At Opco’s request, Alibaba shall keep Opco reasonably informed of the progress of any such Enforcement Action brought or defended by Alibaba pursuant to this Section 6.2(a).

(b) In the event that Alibaba does not initiate an Enforcement Action to enforce the Opco-Exclusive Patents against a commercially significant infringement by a third Person in the field of the Business (“Qualifying Infringement”), within ninety (90) days after a formal, written request by Opco to initiate such Enforcement Action, Opco may initiate an Enforcement Action against such infringement. In the event that Alibaba does not promptly undertake, at Alibaba’s expense, the defense of a declaratory judgment action against Opco (or a reexamination request) with respect to any of the Opco Exclusive Patents, Opco shall have the right to do so at its own expense. Opco must consult with Alibaba prior to initiating any Enforcement Action or defending any declaratory judgment action (or reexamination) pursuant to this Section 6.2(b) with respect to an Opco-Exclusive Patent, and shall not assert any Opco-Exclusive Patent against any third Person if, in the written opinion of outside patent counsel mutually agreed to by the parties, it is more likely than not that such third Person is not infringing the Opco Exclusive Patent in the field of the Business. Alibaba shall have the right (but not the obligation) to cooperate, at Opco’s expense, in any Enforcement Action initiated or defended by Opco under this Section 6.2(b) (including joining such Enforcement Action as a party plaintiff if necessary or desirable for initiation or continuation of such Enforcement Action) and shall have the right (but not the obligation) to participate and be represented in any such Enforcement Action with counsel of its choice at Alibaba’s own expense. In any event, Opco shall keep Alibaba reasonably informed of the progress of any such Enforcement Action initiated or defended by Opco pursuant to this Section 6.2(b) and, upon Alibaba’s request, shall seek Alibaba’s input on any substantive submissions or positions it takes in the litigation regarding the scope, validity and enforceability of the Opco-Exclusive Patents. Opco shall have the right to enter into an agreement in settlement of any Enforcement Action brought or defended pursuant to this Section 6.2(b), including the grant of a license within the field of the Business, but shall not enter into any settlement agreement which would impose any obligation or cost on, or otherwise adversely affect, Alibaba or any of its Subsidiaries (for clarity, for purposes or the foregoing, the parties acknowledge that a non-exclusive license consistent with this Agreement that is granted to the defendant in any such Enforcement Action shall not be regarded as adversely affecting Alibaba or its Subsidiaries), or make any admission relating to the validity or enforceability of any Opco-Exclusive Patents, without the prior written consent of Alibaba, such consent not to be unreasonably withheld or delayed. All recoveries obtained by Opco from an Enforcement Action pursuant to this Section 6.2(b) will be first used to reimburse Alibaba for its out-of-pocket litigation-related expenses (including reasonable attorneys’ fees and court costs) in connection with the Enforcement Action and any remaining recoveries will be retained one hundred percent (100%) by Opco and included in the consolidated pre-tax income of the Opco Group in the fiscal year in which such recoveries are accrued.

(c) Notwithstanding anything set forth in Section 6.2(b), Alibaba may, in its sole discretion, refuse to cooperate with Opco in connection with, or otherwise participate in, any Enforcement Action (“Right of Refusal”), and Opco shall not seek to join Alibaba or any Alibaba Subsidiary as a party in any Enforcement Action. In the event Alibaba exercises its Right of Refusal with respect to any Opco-Exclusive Patents, then, upon Opco’s written request, Alibaba agrees to cooperate with Opco to determine if the assignment of any Opco-Exclusive Patent to Opco or waiver of Alibaba’s right to enforce the subject Opco-Exclusive Patent would be necessary for the purposes of Opco to pursue or defend the applicable Enforcement Action. If Alibaba and Opco determine that such an assignment of any Opco-Exclusive Patent(s) or waiver of Alibaba’s rights is necessary, then Alibaba will elect, in its sole discretion and subject to the unanimous approval of the Independent Directors (which approval is given pursuant to the procedures set forth in Section 7.11 of the Framework Agreement) as to which option to elect: (i) to join in the applicable Enforcement Action, (ii) file appropriate papers with the applicable court confirming that it waives its rights to enforce the applicable Opco-Exclusive Patent and agrees that Opco may enforce such Opco-Exclusive Patent, or (iii) to assign to Opco, at Alibaba’s sole cost and expense and subject to Section 2.7(a), Alibaba’s entire right, title and interest in and to such Opco-Exclusive Patent(s), together with the right to recover any damages for past infringement of such Opco-Exclusive Patent(s). For clarity, any Opco-Exclusive Patent assigned to Opco pursuant to this Section 6.2(c) will constitute Opco-Retained IP licensed to Alibaba and its Subsidiaries pursuant to Section 2.7(a).

7. WARRANTIES

7.1 Limited Software Technology Services Warranty. Alibaba warrants that the Software Technology Services shall be performed in a manner consistent with similar services historically provided by the Opco IP/Technology Providers to other Subsidiaries of the Alibaba Group (including Opco and its Subsidiaries). This warranty will be in effect for a period of thirty (30) days from the completion of any Software Technology Services. As Opco’s and the Opco Subsidiaries’ sole and exclusive remedy and Alibaba’s and the Opco IP/Technology Provider’s entire liability for any breach of the foregoing warranty, Alibaba shall, at its sole option and expense, promptly re-perform, or caused to be re-performed, any Software Technology Services that fail to meet this limited warranty or refund to Opco the fees paid for the non-conforming Software Technology Services.

7.2 Opco-Exclusive IP Warranty. Opco represents and warrants to Alibaba as of the Effective Time that (a) each of the Opco-Exclusive Copyrights (including the Opco-Exclusive Software and Opco-Exclusive Other Materials) set forth Exhibit A, the Opco-Exclusive Domain Names set forth in Exhibit B and the Opco-Exclusive Trademarks set forth in Exhibit D is exclusively used in and relates solely to the Business as conducted by Opco and its Subsidiaries and is not used in, or necessary for use by, Alibaba or its Affiliates in connection with the conduct of the Alibaba Business, and (b) each of the Opco-Exclusive Patents set forth in Exhibit C is based only on inventions made solely by employees or contractors of Opco IT, Alipay Software Ltd., Opco or Opco’s Subsidiaries.

7.3 Warranty Disclaimer. THE EXPRESS WARRANTIES IN SECTION 7.1 ARE IN LIEU OF, AND ALIBABA AND THE OPCO IP/TECHNOLOGY PROVIDERS HEREBY DISCLAIM, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, THE LICENSED IP IS LICENSED BY ALIBABA AND THE OPCO IP/TECHNOLOGY PROVIDERS TO OPCO, AND THE SOFTWARE TECHNOLOGY SERVICES AND ANY RELATED WORK PRODUCT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, AND SHALL NOT BE SUBJECT TO ANY STANDARDS, SERVICE LEVELS, REVIEWS, MODIFICATIONS OR ACCEPTANCE CRITERIA OF ANY KIND UNLESS OTHERWISE EXPRESSLY AGREED BY THE PARTIES IN WRITING.

8. INDEMNIFICATION.

8.1 Opco Indemnification of Alibaba. Opco agrees on behalf of itself and its Subsidiaries, to defend, indemnify, and hold harmless Alibaba, the Opco IP/Technology Providers, and Alibaba’s other Affiliates, and each of their respective directors, officers, employees, representatives and agents (the “Alibaba Indemnitees”) from and against any and all claims, actions, causes of action, judgment, awards, liabilities, losses, costs or damages (including reasonably attorneys’ fees and expenses) (collectively, “Losses”) arising out of or relating to any claim by any third Person arising out of or relating to Opco’s and/or the Opco Subsidiaries’ use of, or the exercise of its rights in and to, the Licensed IP. For clarity, the parties acknowledge that to the extent that a claim arises out of or relates to the Services (as defined in the Commercial Agreement) provided to Alibaba or its Subsidiaries under the Commercial Agreement, the indemnification provisions of the Commercial Agreement (rather than this Section 8.1) shall apply.

8.2 Indemnification Procedures.

(a) Promptly after receipt by Alibaba of notice of the commencement or threatened commencement of any action, suit, proceeding, claim, arbitration, investigation or litigation, whether civil or criminal, at Law or in equity, made or brought by a third Person (each a “Third Party Claim”), in respect of which Alibaba will seek indemnification pursuant to Section 8.1, Alibaba shall notify Opco of such Third Party Claim in writing. No failure to so notify Opco shall relieve it of its obligations under this Agreement, except to the extent that it can demonstrate that it was materially prejudiced by such failure.

(b) Opco shall have thirty (30) days after receipt of notice to elect, at its option, to assume and control the defense of, at its own expense and by its own counsel, any such Third Party Claim, and shall be entitled to assert any and all defenses available to Alibaba, Alibaba’s Subsidiaries, including the Opco IP/Technology Providers to the fullest extent permitted under applicable Law; provided, however, that Opco shall have no right to assume and control, and Alibaba shall at all times remain in sole control of (including selecting counsel), the defense of any Third Party Claim related to taxes. If Opco shall undertake to compromise or defend any such Third Party Claim, it shall promptly, but in any event within ten (10) days of the receipt of notice from Alibaba of such Third Party Claim, notify Alibaba of its intention to do so, and Alibaba shall cooperate fully with Opco and its counsel in the compromise of, or defense against, any such Third Party Claim; provided, however, that (A) Opco shall not settle, compromise or discharge, with respect to, any such Third Party Claim without Alibaba’s prior written consent (which consent shall not be unreasonably withheld, delayed, or conditioned) and (B) Opco shall not admit any liability with respect to any such Third Party Claim without Alibaba’s prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned.

(i) Notwithstanding an election by Opco to assume the defense of any Third Party Claim, Alibaba and/or the applicable member of the Alibaba Indemnitees shall have the right to employ separate counsel and to participate in the defense of such Third Party Claim, and Opco shall bear the reasonable fees, costs and expenses of such separate counsel if (1) Alibaba shall have determined in good faith that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by Opco inappropriate, or (2) Opco shall have authorized Alibaba to employ separate counsel at Opco’s expense.

(ii) Alibaba, Opco, and their respective counsel shall cooperate in the defense of any Third Party Claim subject to Section 8.1, keep such persons informed of all developments relating to any such Third Party Claims, and provide copies of all relevant correspondence and documentation relating thereto, except as necessary to preserve attorney-client, work product and other applicable privileges. All reasonable costs and expenses incurred in connection with Alibaba’s cooperation shall be borne by Opco. In any event, Alibaba and/or the applicable member of the Alibaba Indemnitees shall have the right at its own expense to participate in the defense of such asserted liability.

(c) If Opco does not elect to defend a Third Party Claim pursuant to Section 8.2(b), or does not defend such Third Party Claim in good faith, Alibaba and/or the applicable Opco IP/Technology Provider shall have the right, in addition to any other right or remedy it may have hereunder, at Opco’s expense, to defend such Third Party Claim; provided, however, that Alibaba and/or the applicable Opco IP/Technology Provider shall not settle, compromise or discharge, or admit any liability with respect to, any such Third Party Claim without Opco’s prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned.

9. CONFIDENTIALITY

9.1 Confidential Information. Each party (the “Receiving Party”) shall use the same standard of care to prevent the public disclosure and dissemination of the Confidential Information of the other party (the “Disclosing Party”) as the Receiving Party uses to protect its own comparable Confidential Information. “Confidential Information” of a party means confidential, non-public marketing plans, product plans, business strategies, financial information, forecasts, Personal Information, Highly Sensitive Information, customer lists and customer data, technical documents and information and any similar confidential, non-public materials and information, regarding such party and its Affiliates, or their representatives or customers, disclosed by the Disclosing Party to the Receiving Party under or in connection with this Agreement, whether orally, electronically, in writing, or otherwise, including copies thereof, in each case to the extent expressly marked in writing as “Confidential,” or, if disclosed orally, identified as confidential at the time of disclosure and set forth or summarized in a written document expressly marked as “Confidential” delivered to the Receiving Party no later than thirty (30) days after the date of the initial oral disclosure thereof, or, if not so marked or identified as “Confidential,” shall nevertheless be regarded as Confidential Information if a reasonable person under the circumstances would know the information is considered confidential by the Disclosing Party. Confidential Information of Alibaba includes the Source Code of the Opco-Exclusive Software and the source Code and Object Code of the Opco-Related Software. Notwithstanding the foregoing, (a) Confidential Information may be disclosed on an as needed basis to personnel or subcontractors (in the case of Opco, solely to Permitted Subcontractors) of the Receiving Party and its Subsidiaries solely as and to the extent required for the purpose of fulfilling the Receiving Party’s obligations or exercising the Receiving Party’s rights under any Transaction Document (including, in the case Alibaba and its Subsidiaries, its rights to contract with other Persons for the procurement by Alibaba or its Subsidiaries of services comparable to the Services (as defined in the Commercial Agreement)), and (b) nothing in this Section 9.1 shall be deemed to prevent Opco and its Subsidiaries from engaging in the Business or Alibaba and its Subsidiaries from engaging in the business of Alibaba and its Subsidiaries or otherwise preventing Opco or Alibaba and their respective Subsidiaries from exercising their rights in and to the Licensed IP, Opco-Retained IP or Opco Non-Core IP. Nonetheless, each Receiving Party (x) shall limit the disclosure of the Disclosing Party’s Confidential Information to third Persons to what is necessary for a reasonable purpose in the conduct of the business of the Receiving Party (including its Subsidiaries), and (y) Alibaba and its Subsidiaries shall not disclose any Highly Sensitive Information to any third Persons, except user data to the extent that (i) disclosure of such data is required for the purpose of engaging a third Person to provide services comparable to the Services (as defined in the Commercial Agreement) (provided that such third Person shall not use such data for any other purpose), (ii) disclosure of such data to such third Person in accordance with this Agreement does not violate applicable Law, and (iii) disclosure of such data to such third Person in accordance with this Agreement does not violate the terms of use or terms of service under which such data was collected. Each Receiving Party shall take all reasonable steps to ensure that any such Confidential Information disclosed to any Personnel or subcontractors in accordance with this Sections 9.1 is treated as confidential by the personnel, Subsidiary Sublicensees, Permitted Subcontractors, and Opco End Users to whom it is disclosed, and shall require the foregoing to enter into an agreement which imposes confidentiality obligations no less protective of the Confidential Information than those imposed under this Agreement.

9.2 Permitted Disclosures. The provisions of this Article 9 shall not apply to any Confidential Information which: (a) is or becomes commonly known within the public domain other than by breach of this Agreement or any other agreement that the Disclosing Party has with any Person; (b) is obtained from a third Person who is lawfully authorized to disclose such information free from any obligation of confidentiality; (c) is independently developed without reference to or use of any Confidential Information of the Disclosing Party; or (d) is known to the Receiving Party without any obligation of confidentiality prior to its receipt from the Disclosing Party.

9.3 Disclosure in Compliance With Law. Nothing in this Article 9 shall prevent the Receiving Party from disclosing Confidential Information where it is required to be disclosed by judicial, administrative, governmental, or regulatory process in connection with any action, suit, proceeding or claim, or otherwise by applicable Law; provided, however, that the Receiving Party shall, if legally permitted, give the Disclosing Party prior reasonable notice as soon as possible of such required disclosure so as to enable the Disclosing Party to seek relief from such disclosure requirement or measures to protect the confidentiality of the disclosure.

9.4 Restricted Data. Notwithstanding anything to the contrary set forth herein, nothing in this Agreement shall require Opco to disclose to Alibaba or its Subsidiaries any information, communications or documents that are protected by attorney-client privilege, work product privilege or is protected under similar legal principles in foreign jurisdictions, or Personal Information of any person, or any other information or data where such disclosure would be prohibited by applicable Law, including Chinese Laws relating to payment data security or state economic security.

9.5 Confidentiality of the Licensed IP. In addition to the obligations set forth in Section 9.3 and Section 2.4(c), Opco shall comply with the obligations set forth in this Section 9.5 with respect to the Opco-Exclusive Software and Opco-Related Software. Opco and the Subsidiary Sublicensees shall take reasonable steps, during the Term with respect to Opco-Exclusive Software, and both during and after the Term with respect to Opco-Related Software, to ensure that no unauthorized copy, in whole or in part, of the Opco-Exclusive Software or Opco-Related Software will be made available to any third Person. Opco and the Subsidiary Sublicensees shall use the Opco-Exclusive Software and Opco-Related Software disclosed to each of them hereunder under carefully controlled conditions, shall distribute such Opco-Exclusive Software and Opco-Related Software only to each of its respective employees with a need to have access thereto, and solely to the extent necessary to exercise their license or sublicense rights set forth in this Agreement, and Opco and each Subsidiary Sublicensee shall observe, at a minimum, the same level of security, copy restrictions and non-disclosure as it exercises with respect to confidential Opco-Exclusive Software and Opco-Related Software and related documentation for each of their own products, which in no event shall be less than a reasonable degree of care. Opco shall be fully responsible for the conduct of its employees, agents, representatives, Subsidiary Sublicensees and Permitted Subcontractors who may in any way breach this Agreement, and Opco shall immediately notify Alibaba of any known breach of this Agreement including any act or omission by any Opco Affiliate that, if committed by Opco, would constitute a breach of this Agreement.

9.6 Residuals. Notwithstanding anything to the contrary herein, the Receiving Party shall be free to use for any purpose the Residual Information resulting from access to any Confidential Information disclosed to it under this Agreement. “Residual Information” means information in non-tangible form which may be retained in the memory of employees of the Receiving Party who have had access to the Confidential Information of the Disclosing Party. Receiving Party’s receipt of Confidential Information under this Agreement shall not create any obligation that in any way limits or restricts the assignment and/or reassignment of the Receiving Party’s employees. For the avoidance of doubt, the foregoing does not constitute a license under any Patent or otherwise affect any party’s (or its Subsidiaries’) rights or obligations under Section 7.13 of the Framework Agreement.

10. LIMITATION OF LIABILITY. IN NO EVENT WILL ALIBABA, ANY ALIBABA AFFILIATE OR AN OPCO IP/TECHNOLOGY PROVIDER BE LIABLE TO OPCO, ANY OPCO AFFILIATE OR TO ANY THIRD PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED IP OR THE SOFTWARE TECHNOLOGY SERVICES OR ANY RESULTS OR WORK PRODUCT ARISING FROM THE SOFTWARE TECHNOLOGY SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ALIBABA OR AN OPCO IP/TECHNOLOGY PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALIBABA’S AND THE OPCO IP/TECHNOLOGY PROVIDERS’ TOTAL LIABILITY TO OPCO AND OPCO AFFILIATES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY UNDER THIS AGREEMENT, WILL BE LIMITED TO AND WILL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO ALIBABA AND THE OPCO IP/TECHNOLOGY PROVIDERS BY THE OPCO GROUP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY; PROVIDED, HOWEVER, THAT DURING THE PERIOD COMMENCING ON THE EFFECTIVE TIME AND ENDING ON A DATE ONE (1) YEAR THEREAFTER, ALIBABA’S AND THE OPCO IP/TECHNOLOGY PROVIDERS’ TOTAL LIABILITY HEREUNDER SHALL NOT EXCEED THE GREATER OF (1) TEN MILLION ($10,000,000) U.S. DOLLARS AND (2) THE TOTAL AMOUNTS ACTUALLY PAID TO ALIBABA AND THE OPCO IP/TECHNOLOGY PROVIDERS BY THE OPCO GROUP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY.

11. NO EFFECT ON ACQUIRER’S SEPARATE INTELLECTUAL PROPERTY RIGHTS. Notwithstanding anything to the contrary set forth herein, in the event Alibaba merges with or acquires a third Person, or assigns or transfer this Agreement to a third Person (any such third Person, “Transferee”), whether by merger, assignment, transfer of assets (including but not limited to this Agreement) or otherwise, the licenses granted pursuant to Section 2.2 will extend only to the Opco-Related IP owned by Alibaba or an Opco IP/Technology Provider immediately prior to such merger, acquisition, assignment or transfer and will not affect or otherwise encumber in any manner the Transferee’s Intellectual Property Rights, except only any Opco-Related IP owned by Alibaba or an Opco IP/Technology Provider immediately prior to such merger, acquisition, assignment or transfer and acquired by the Transferee from Alibaba or an Opco IP/Technology Provider and any subsequently filed patents and patent applications that claim an effective filing date based upon Opco-Related Patents that were owned by Alibaba or an Opco IP/Technology Provider immediately prior to such assignment or transfer.

12. COMPLIANCE WITH LAWS. At all times during the Term, Opco shall comply, and shall cause its Subsidiaries to comply, with all Laws applicable to Opco and Opco’s Subsidiaries concerning the Business and any Business Product. Without limiting the foregoing, Opco acknowledges that the Licensed IP and all related technical data and materials may be subject to export controls under the applicable export, import and/or use control Law in any territory where the Licensed IP is used. Notwithstanding anything in this Agreement to the contrary, Alibaba and the Opco IP/Technology Providers shall not be required to supply to Opco, any Opco Subsidiaries or any third Persons, and Opco and Opco Affiliates shall not export or re-export, any Licensed IP or technical data supplied by Alibaba or the Opco IP/Technology Providers, directly or through third Persons, to any source for use in any country or countries in contravention of any Laws.

13. TERM AND TERMINATION

13.1 Term. This Agreement will enter into effect upon the Effective Time and continue in full force and effect until the IP Termination Date, unless earlier terminated in accordance with this Section 13 (the “Term”).

13.2 Termination by Alibaba for Opco Bankruptcy. Alibaba shall have the right to terminate this Agreement on the occurrence of any of the following events if:

(a) Opco files a petition for bankruptcy or is adjudicated a bankrupt;

(b) Opco becomes insolvent and makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy Law;

(c) Opco discontinues the Business; or

(d) an administrator is appointed for Opco or its business.

13.3 No Termination by Opco. Opco shall have no right to terminate this Agreement, or any of the Software Technology Services, based on any breach hereof or for any other reason, and Opco’s sole and exclusive remedy with respect to any breach hereof by Alibaba or an Opco IP/Technology Provider will be to seek monetary damages for the breach and, in the case of Alibaba’s or an Opco IP/Technology Provider’s breach of its obligations under Section 9, injunctive or other equitable remedies to cure, limit and restrain any such breach or threatened breach.

13.4 Injunctive Relief. The Parties have agreed that the Software Technology Services will be provided to Opco and its Subsidiaries in accordance with this Agreement and it is an essential element of the bargain between the parties that Opco IT and its Subsidiaries will provide the Software Technology Services described in this Agreement except in the case of a rightful termination as set forth in Section 13. Therefore, Opco and its Subsidiaries shall be entitled to equitable relief, including injunctive relief, in addition to all of its other rights and remedies hereunder, at Law or in equity, to enforce the provisions of this Agreement related to the performance of Software Technology Services.

13.5 Non-payment. If Opco fails to make payment of any amounts due and payable to Opco IT or Alibaba IT under this Agreement by the date such payment is due, the parties agree that Opco IT or Alibaba IT, as applicable, is entitled to charge interest on such unpaid amounts at twelve percent (12%) annual rate, commencing from the date on which payment was due. Opco’s failure to pay the Royalty or the Software Technology Fee due under this Agreement will not entitle Alibaba to terminate this Agreement. Notwithstanding the foregoing, Alibaba may terminate this Agreement upon notice to Opco if Holdco (i) fails to pay, or caused to be paid, any or all of the IPCo Note Amount, the Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment, in each case as set forth in and in accordance with the Framework Agreement, and (ii) does not cure such payment failure pursuant to the terms of Section 9.01(a)(vii) of the Framework Agreement.

13.6 Effects of Termination.

(a) Licenses. All licenses and sublicenses granted under this Agreement will terminate upon the termination or expiration of this Agreement; provided, however, that the termination of such licenses and sublicenses pursuant to this Section 13.6 shall have no effect on any license of rights in and to any Intellectual Property or Intellectual Property Rights in accordance with Section 2.10 of the Framework Agreement or as otherwise agreed to by the parties.

(b) Return of Confidential Material. Within thirty (30) days after the termination or expiration of this Agreement, each party shall either deliver to the other, or destroy, all copies of any tangible Confidential Information of the other party provided hereunder in its possession or under its control, and shall furnish to the other party an affidavit signed by an officer of its company certifying that such delivery or destruction has been fully effected.

(c) Payment of Unpaid Royalty and Fee. Within sixty (60) days of the expiration or termination of this Agreement, Opco shall pay, or caused to be paid, to Alibaba or an Alibaba Affiliate designated by Alibaba, all sums, if any, due and owing pursuant to the terms of this Agreement as of the date of expiration or termination of this Agreement.

13.7 Survival. The respective rights and obligations of the parties under Sections 1, 4.4(b) (to the extent set forth therein), 5.5, 5.6, 7, 8, 9, 10, 13.6, 13.7, 14 and 15 of this Agreement will survive expiration or termination of this Agreement. No termination or expiration of this Agreement shall relieve any party for any liability for any breach of or liability accruing prior to the effective date of termination.

14. OBLIGATION OF THE PARTIES REGARDING SUBSIDIARIES. Each party shall require its respective Subsidiaries to fulfill each such Subsidiary’s duties and comply with its obligations, all as set forth in this Agreement. Without limiting the generality of the foregoing, Opco shall cause its Subsidiaries to carry out all obligations, duties and responsibilities of Opco set forth in this Agreement, including without limitation all obligations to take any actions or refrain from taking any actions, and any act or failure to act by any Subsidiary of Opco shall be deemed an act or failure to act of Opco. Opco shall be liable for the performance of all obligations, duties and responsibilities of its Subsidiaries in this Agreement and for all actions or failures to act of its Subsidiaries, and any failure of Opco Subsidiaries to perform any obligation, duty or responsibility set forth in this Agreement, or to take or fail to take any action in accordance with this Agreement, shall be deemed a breach of this Agreement by Opco.

15. GENERAL.

15.1 Relationship of the Parties as Independent Contractors. The parties are and at all times will be and remain independent contractors as to each other, and at no time will either party be deemed to be the agent or employee of the other. No joint venture, partnership, agency, or other relationship will be created or implied as a result of this Agreement. Alibaba and the Opco IP/Technology Providers are performing the Software Technology Services as independent contractors of Opco or Opco’s Subsidiaries and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Opco or any Opco Subsidiary, on the one hand, and Alibaba, an Opco IP/Technology Provider or any of their personnel, on the other. Alibaba and the Opco IP/Technology Providers have no authority to bind Opco or Opco’s Subsidiaries by contract or otherwise, and Opco and Opco’s Subsidiaries have no authority to bind Alibaba or the Alibaba Group (including the Opco IP/Technology Providers) by contract or otherwise. Alibaba and the Opco IP/Technology Providers acknowledge and agree that their personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Opco and Opco’s Subsidiaries makes available to any employees of Opco or any Opco Subsidiaries. Except as explicitly set forth herein, Alibaba and the Opco IP/Technology Providers are solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between Alibaba and the Opco IP/Technology Providers and their personnel and the performance of Software Technology Services by such personnel.

15.2 Opco IP/Technology Providers Addenda. Each Opco IP/Technology Providers Addendum shall be in the form set forth in Exhibit F. In the event of any conflict between any Opco IP/Technology Providers Addendum and any term or condition of this Agreement, this Agreement will control.

15.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed received (i) on the date of delivery if delivered personally and/or by messenger service, (ii) on the date of receipt of transmission by facsimile (or, the first (1^st) Business Day following such receipt if (a) the date is not a Business Day or (b) receipt occurs after 5:00 p.m., local time of the recipient) or (iii) on the date of confirmation of receipt if delivered by a nationally recognized courier service (or, the first (1^st) Business Day following such receipt if (a) the date is not a Business Day or (b) receipt occurs after 5:00 p.m., local time of the recipient), to the Parties at the following address or facsimile numbers (or at such other address or facsimile number for a Party as shall be specified by like notice):

To Alibaba:

c/o Alibaba Group Services Limited

24^th Floor, Jubilee

00 Xxxxxxx Xxxxxx

Xxxxxxx

Xxxx Xxxx

Attention: General Counsel

Facsimile No.: x000 0000 0000

with a copy to the Independent Directors at their addresses set forth below.

To Yahoo!:

Yahoo! Inc.

000 Xxxxx Xxxxxx

Xxxxxxxxx, XX 00000

Attention: General Counsel

Facsimile No: (000) 000-0000

with a copy (not notice) to:


Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attention:		Xxxxxx X. Xxxx
		Xxxx X. Xxxx
Facsimile No.: (000) 000-0000

To Softbank:

SOFTBANK CORP.

0-0-0 Xxxxxxx Xxxxxxxxx, Xxxxxx-xx,

Xxxxx 000-0000, Xxxxx

Attention: Mr. Katsumasa Niki, Finance

Facsimile No: x00-0-0000-0000

with a copy (not notice) to:

Xxxxxxxx & Xxxxxxxx LLP

Shin-Marunouchi Building 00X, 0-0-0 Xxxxxxxxxx, Xxxxxxx-xx

Xxxxx 000-0000, Xxxxx

Attention: Xxxxxxx Xxxxxx

Facsimile No: x00-0-0000-0000

To Opco:

Alibaba Group Services Limited

24^th Floor, Jubilee

00 Xxxxxxx Xxxxxx

Xxxxxxx

Xxxx Xxxx

Attention: General Counsel

Facsimile No.: x000 0000 0000

with a copy (not notice) to:

Wachtell, Lipton, Xxxxx & Xxxx

00 Xxxx 00xx Xxxxxx

Xxx Xxxx, XX 00000

Attention: Xxxx Xxxxxx

Facsimile No: (000) 000-0000

and

Fenwick & West LLP

Silicon Valley Center

000 Xxxxxxxxxx Xxxxxx

Xxxxxxxx Xxxx, XX 00000

Attention: Xxxxx Xxxxxxxxxx

Facsimile No.: (000) 000-0000

and

Fangda Partners

20/F, Xxxxx Center

1515 Nan Xxxx Xxxx Xxxx

Xxxxxxxx 000000, Xxxxx

Attention: Xxxxxxxx Xxxx

Facsimile No: +8621-5298-5577

15.4 Headings. The bold-faced headings contained in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement and will not be referred to in connection with the construction or interpretation of this Agreement.

15.5 Counterparts and Exchanges by Electronic Transmission or Facsimile. This Agreement may be executed in several counterparts, each of which will constitute an original and all of which, when taken together, will constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or facsimile will be sufficient to bind the parties to the terms and conditions of this Agreement.

15.6 Arbitration.

(a) Any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement, including the breach, termination or validity hereof, shall be finally resolved exclusively by arbitration. The arbitration shall be administered by, and conducted in accordance with the rules of the International Chamber of Commerce (the “ICC”) in effect at the time of the arbitration, except as they may be modified by mutual agreement of the parties. The seat of the arbitration shall be Singapore, provided, that, the arbitrators may hold hearings in such other locations as the arbitrators determine to be most convenient and efficient for all of the Parties to such arbitration under the circumstances. The arbitration shall be conducted in the English language.

(b) The arbitration shall be conducted by three arbitrators. The party (or the parties, acting jointly, if there are more than one) initiating arbitration (the “Claimant”) shall appoint an arbitrator in its request for arbitration (the “Request”). The other party (or the other parties, acting jointly, if there are more than one) to the arbitration (the “Respondent”) shall appoint an arbitrator within thirty (30) days of receipt of the Request and shall notify the Claimant of such appointment in writing. If within thirty (30) days of receipt of the Request by the Respondent, either party has not appointed an arbitrator, then that arbitrator shall be appointed by the ICC. The first two arbitrators appointed in accordance with this provision shall appoint a third arbitrator within thirty (30) days after the Respondent has notified Claimant of the appointment of the Respondent’s arbitrator or, in the event of a failure by a party to appoint, within thirty (30) days after the ICC has notified the parties and any arbitrator already appointed of the appointment of an arbitrator on behalf of the party failing to appoint. When the third arbitrator has accepted the appointment, the two arbitrators making the appointment shall promptly notify the parties of the appointment. If the first two arbitrators appointed fail to appoint a third arbitrator or so to notify the parties within the time period prescribed above, then the ICC shall appoint the third arbitrator and shall promptly notify the parties of the appointment. The third arbitrator shall act as Chair of the tribunal.

(c) The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the parties. The award may include an award of costs, including reasonable attorneys’ fees and disbursements. In addition to monetary damages, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement. The arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any dispute, except insofar as a claim is for indemnification for an award of punitive damages awarded against a party in an action brought against it by an independent third Person. The arbitral tribunal shall be authorized in its discretion to grant pre-award and post-award interest at commercial rates. Any costs, fees or taxes incident to enforcing the award shall, to the maximum extent permitted by Law, be charged against the party resisting such enforcement. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets.

(d) In order to facilitate the comprehensive resolution of related disputes, and upon request of any party to the arbitration proceeding, the arbitration tribunal may, within ninety (90) days of its appointment, consolidate the arbitration proceeding with any other arbitration proceeding involving any of the parties relating to the Transaction Documents. The arbitration tribunal shall not consolidate such arbitrations unless it determines that (i) there are issues of fact or law common to the proceedings, so that a consolidated proceeding would be more efficient than separate proceedings, and (i) no party would be prejudiced as a result of such consolidation through undue delay or otherwise. In the event of different rulings on this question by the arbitration tribunal constituted hereunder and any tribunal constituted under the Transaction Documents (other than this Agreement), the ruling of the tribunal constituted under this Agreement will govern, and that tribunal will decide all disputes in the consolidated proceeding.

(e) The Parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including but not limited to any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the tribunal, the ICC, the Parties, their counsel and any person necessary to the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise, or as required by NASDAQ rules or the rules of any other quotation system or exchange on which the disclosing Party’s securities are listed or applicable Law.

(f) The costs of arbitration shall be borne by the losing party unless otherwise determined by the arbitration award.

(g) All payments made pursuant to the arbitration decision or award and any judgment entered thereon shall be made in United States dollars (or, if a payment in United States dollars is not permitted by Law and if mutually agreed upon by the Parties, in the currency of the People’s Republic of China), free from any deduction, offset or withholding for taxes.

(h) Notwithstanding this Section 15.6 or any other provision to the contrary in this Agreement, no party shall be obligated to follow the foregoing arbitration procedures where such party intends to apply to any court of competent jurisdiction for an interim injunction or similar equitable relief against any other party, provided there is no unreasonable delay in the prosecution of that application.

15.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THAT COULD LEAD TO THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK.

15.8 Assignment. Neither party shall transfer this Agreement, or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of Law, without the prior written consent of the other party. Any purported transfer, assignment or delegation by either party without the appropriate prior written approval will be null and void and of no force or effect. Subject to the foregoing, this Agreement is binding upon the parties’ successors, heirs and assigns.

15.9 No Assignment of Opco-Exclusive IP. Alibaba, on behalf of itself and its Subsidiaries, agrees not to assign or transfer any ownership interest in or to any Opco-Exclusive IP to any third Person, except as explicitly permitted by Section 6.2(c) of this Agreement.

15.10 Remedies Cumulative; Specific Performance. The rights and remedies of the parties hereto will be cumulative (and not alternative). Each party agrees that: (a) in the event of any breach or threatened breach by the other party of any covenant, obligation or other provision set forth in this Agreement, such party will be entitled (in addition to any other remedy that may be available to it) to seek: (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision; and (ii) an injunction restraining such breach or threatened breach; and (b) no party will be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related proceeding.

15.11 Waiver. No failure on the part of either party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, will operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy will preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party will be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver will not be applicable or have any effect except in the specific instance in which it is given.

15.12 Amendments. No amendment, waiver, or discharge hereof (including any exhibit or schedule hereto) shall be valid unless in writing and signed (a) by the party against which such amendment, waiver or discharge is sought to be enforced, and (b) in the case of Alibaba, by the Independent Directors or their designees, wherein the signatures of the Independent Directors or their designees are obtained pursuant to the procedures set forth in Section 7.11 of the Framework Agreement, but, in any event, only with respect to amendments of this Agreement and waiver or discharge of any material rights of Alibaba or obligations of Opco under this Agreement.

15.13 Severability. Each provision of this Agreement shall be deemed a material and integral part hereof. Except as otherwise provided in this Section 15.13, in the event of a final determination of invalidity, illegality or unenforceability of any provision of this Agreement, the parties shall negotiate in good faith to amend this Agreement (and any other Transaction Documents, as applicable) or to enter into new agreements to replace such invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provisions providing the parties with benefits, rights and obligations that are equivalent in all material respects as provided by the Agreement (and any other Transaction Documents, as applicable) as if the invalid, illegal or unenforceable provision(s) had been valid, legal and enforceable. In the event the parties are not able to reach agreement on such amendments or new agreements, then the arbitrators (pursuant to the procedures set forth in Section 15.6 of this Agreement) shall determine, as part of their arbitral award, such amendments or new agreements such to provide the parties with benefits, rights and obligations that are equivalent in all material respect as provided by the Agreement as if the stricken provision(s) had been valid, legal and enforceable.

15.14 Entire Agreement. This Agreement and all provisions of any Transaction Documents referred to herein, including all schedules and exhibits hereto and thereto, sets forth the entire understanding of the parties relating to the subject matter thereof and supersedes all prior agreements and understandings among or between any of the parties relating to the subject matter thereof.

15.15 English Language Only. This Agreement is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will be for accommodation only and will not be binding upon the parties hereto. All communications to be made or given pursuant to this Agreement will be in the English language.

15.16 Further Assurances. During and after the Term, a party shall, at the request of the other party: (i) execute, deliver, or cause to be executed or delivered, all such assignments, consents, documents or further instruments of transfer or license consistent with the provisions of this Agreement; and (ii) take, or cause to be taken, all such other actions that the requesting party may reasonably deem necessary or desirable in order for such party to obtain the full benefits of this Agreement and the transactions contemplated hereby.

[Remainder of page intentionally blank]

The parties to this Agreement have caused this Agreement to be executed and delivered as of the date first written above.


ALIBABA GROUP HOLDING LIMITED, a Cayman Islands registered company

By:		/s/ Xxxx Xx Yun

Name:		Xxxx Xx Yun

Title:		Chairman & Chief Executive Officer

支付宝（中国）网络技术有限公司(盖章) XXXXXX.XXX CO., LTD., a Chinese limited liability company

Seal:		/s/ Yun Ma

Name:		Yun Ma (马云)

Title:		Legal Representative

[Signature Page to the Intellectual Property License and Software Technology Services Agreement]

Table of Contents


			Page

1.	DEFINITIONS AND CONSTRUCTION			1

	1.1	Definitions		1

	1.2	Construction		9

2.	LICENSE GRANTS			9

	2.1	Opco-Exclusive IP		9

	2.2	Opco-Related IP		10

	2.3	Sublicensing		11

	2.4	Restrictions		12

	2.5	Use of Trademarks		13

	2.6	Grant Back		14

	2.7	No Other Grant		15

	2.8	Injunctive Relief		15

3.	SERVICES			15

	3.1	Performance of Software Technology Services		15

	3.2	Reports		16

	3.3	Opco Responsibilities		16

	3.4	No Further Obligations		16

4.	OWNERSHIP			16

	4.1	Licensed IP		16

	4.2	By Alibaba		16

	4.3	Ownership of Enhancements		17

	4.4	New Patents, Trademarks and Domain Names		17

	4.5	Amendment of Opco-Exclusive IP		18

	4.6	By Opco		19

5.	FEES AND PAYMENT			19

	5.1	Royalty for Licensed IP		19

	5.2	Fees and Expenses for Software Technology Services		19

	5.3	Royalty Reporting and Payment Terms		21

	5.4	Taxes		22

	5.5	Books and Records; Audit Rights		22



	5.6	Disputed Royalty or Charges	23

	5.7	Conduct of Business	23

6.	INTELLECTUAL PROPERTY PROSECUTION AND ENFORCEMENT		23

	6.1	IP Prosecution and Registration	23

	6.2	Patent Enforcement	25

7.	WARRANTIES		27

	7.1	Limited Software Technology Services Warranty	27

	7.2	Opco-Exclusive IP Warranty	27

	7.3	Warranty Disclaimer	27

8.	INDEMNIFICATION		27

	8.1	Holdco Indemnification of Alibaba	27

	8.2	Indemnification Procedures	28

9.	CONFIDENTIALITY		29

	9.1	Confidential Information	29

	9.2	Permitted Disclosures	30

	9.3	Disclosure in Compliance With Law	30

	9.4	Restricted Data	30

	9.5	Confidentiality of the Licensed IP	30

	9.6	Residuals	31

10.	LIMITATION OF LIABILITY		31

11.	NO EFFECT ON ACQUIRER’S SEPARATE INTELLECTUAL PROPERTY RIGHTS		32

12.	COMPLIANCE WITH LAWS		32

13.	TERM AND TERMINATION		32

	13.1	Term	32

	13.2	Termination by Alibaba for Opco Bankruptcy	32

	13.3	No Termination by Holdco or Opco	32

	13.4	Injunctive Relief	33

	13.5	Non-payment	33

	13.6	Effects of Texxxxxxxxx	00

	00.0	Xxxxxxxx	00

00.	OBLIGATION OF THE PARTIES REGARDING AFFILIATES		34



15.	GENERAL		34

	15.1	Relationship of the Parties as Independent Contractors	34

	15.2	Opco IP/Technology Providers Addenda	34

	15.3	Notices	35

	15.4	Headings	37

	15.5	Counterparts and Exchanges by Electronic Transmission or Facsimile	37

	15.6	Arbitration	37

	15.7	Governing Law	38

	15.8	Assignment	39

	15.9	Remedies Cumulative; Specific Performance	39

	15.10	Third Party Beneficiaries	39

	15.11	Waiver	39

	15.12	Amendments	39

	15.13	Severability	40

	15.14	Entire Agreement	40

	15.15	English Language Only	40

	15.16	Further Assurances	40

iii

EXHIBIT A

OPCO-EXCLUSIVE COPYRIGHTS AND OPCO-EXCLUSIVE SOFTWARE

[Note: Schedule 6n-3 to be attached – including unregistered copyrights]

A-1

CONFIDENTIAL

Schedule 6n-3

Intellectual Property to be Licensed or Sub-licensed under the IP License and Software Technology Services Agreement and

Later Transferred to Opco [Z50] as Provided Therein as of May 25, 2011

Schedule of Computer Software Copyrights Held by Alibaba Group Holding Limited and Its Subsidiaries

CONFIDENTIAL

EXHIBIT B

OPCO-EXCLUSIVE DOMAIN NAMES

[Note: Schedule 6n-1 to be attached]

B-1

Confidential

Schedule 6n-1

Intellectual Property to be Licensed or Sub-licensed under the IP License and Software Technology Services Agreement and

Later Transferred to Opco [Z50] as Provided Therein as of July 16, 2011

Schedule of Domain Names Held by Alibaba Group Holding Limited and Its Subsidiaries

Confidential

EXHIBIT C-1

OPCO-EXCLUSIVE PATENTS (CHINA)

[Note: Schedule 6n-5 to be attached]

C-1-1

CONFIDENTIAL

Schedule 6n-5

Intellectual Property to be Licensed or Sub-licensed under the IP License and Software Technology Services Agreement and Later

Transferred to Opco [Z50] as Provided Therein as of July 14, 2011

Schedule of China-Registered Patents Held by Alibaba Group Holding Limited and Its Subsidiaries

CONFIDENTIAL

EXHIBIT C-2

OPCO-EXCLUSIVE PATENTS (HONG KONG)

[Note: Schedule 6n-6 to be attached]

C-2-1

CONFIDENTIAL

Schedule 6n-6

Intellectual Property to be Licensed or Sub-licensed under the IP License and Software Technology Services Agreement and

Later Transferred to Opco [Z50] as Provided Therein as of July 14, 2011

Schedule of Hong Kong-Registered Patents Held by Alibaba Group Holding Limited and Its Subsidiaries

CONFIDENTIAL

EXHIBIT C-3

OPCO-EXCLUSIVE PATENTS (NON-CHINA AND NON-HONG KONG)

[Note: Schedule 6n-4 to be attached]

C-3-1

CONFIDENTIAL

Schedule 6n-4

Intellectual Property to be Licensed or Sub-licensed under the IP License and Software Technology Services Agreement and Later

Transferred to Opco [Z50] as Provided Therein as of July 12, 2011

Schedule of Internationally-Registered Patents Held by Alibaba Group Holding Limited and Its Subsidiaries

CONFIDENTIAL

EXHIBIT D

OPCO-EXCLUSIVE TRADEMARKS

[Note: Schedule 6n-2 to be attached]

D-1

Confidential

Schedule 6n-2

Intellectual Property to be Licensed or Sub-licensed under the IP License and Software Technology Services Agreement and Later Transferred to Opco [Z50] as Provided Therein as of July 16, 2011

Schedule of Trade Marks Held by Alibaba Group Holding Limited and Its Subsidiaries

Page 1

Confidential