Exhibit 10.9
AMENDED AND RESTATED
TECHNICAL SUPPORT AGREEMENT
between
SHANGHAI XXXXXX NETWORKING CO., LTD.
and
SHENGQU INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD.
AMENDED AND RESTATED
TECHNICAL SUPPORT AGREEMENT
THIS AMENDED AND RESTATED TECHNICAL SUPPORT AGREEMENT ("this Agreement") is
entered into on this 9th day of December, 2003 by and between Shanghai Xxxxxx
Networking Co., Ltd. ("Party A"), a company organized and existing under the
laws of the People's Republic of China (the "PRC"), and Shengqu Information
Technology (Shanghai) Co., Ltd. ("Party B"), a wholly foreign-owned enterprise
organized and existing under the laws of the PRC. Each of Party A and Party B
shall hereinafter individually be referred to as a "Party" and collectively as
the "Parties".
WHEREAS:
(1) Party A engages in businesses such as the operating of online games in
PRC (the "Business") and Party B possesses expertise and resources on
technology involved in the Business. Party A intends to retain Party B
to provide relevant technical support service with respect to the
Business ("Technical Support Service"), and Party B is willing to accept
such retainer pursuant to the terms and conditions of this Agreement.
Party A and Party B entered into an Technical Support Agreement on
February 18, 2003;
(2) Pursuant to an Amendment Agreement to Technical Support Agreement and a
Supplementary Agreement to Technical Support Agreement dated February
25, 2003 and October 28, 2003 respectively, the Parties modified certain
provisions relating to the service fees, the term of agreement and other
aspects, and
(3) The Parties desire to integrate the above-mentioned agreements and make
further amendments to these agreements.
NOW THEREFORE, the Technical Support Agreement, the Amendment Agreement to
Technical Support Agreement and the Supplementary Agreement to Technical Support
Agreement dated February 18, 2003, February 25, 2003 and October 28, 2003
respectively shall be superseded by this Agreement after the effective date
hereof. The Parties hereby agree as follows:
ARTICLE 1 SERVICE AND PAYMENT
1. Party A hereby:
A. appoints Party B, effective as of the date of this Agreement, as the
provider of Technical Support Service relating to the Business as agreed
by the Parties from time to time; and
B. agrees to pay Party B a service fee, on a quarterly basis, within three
(3) months of the last day of each quarter (the "Service Fee"). The
amount of the Service Fee shall be decided according to the Technical
Support Service provided by Party B upon request of Party A, and shall
be calculated in accordance with the number of days and personnel
involved in the Technical Support Service. A discount of 88% shall apply
to the Service Fee payable by Party A under this Agreement. In addition
to the
Service Fee, Party A shall reimburse Party B for reasonable out of
pocket expenses that incurred by Party B in connection with providing
the Technical Support Service under this Agreement, including but not
limited to, business trip costs, accommodation and meal costs,
transportation and telecommunication expenses. If Party A is not
satisfactory to the services provided by Party B in the relevant period
and requests deduction of related Service Fee, or the actual fee paid by
Party A is higher than the Service Fee payable under this Agreement,
Party A shall, upon mutual agreement between the Parties, have the right
to deduct the corresponding amount from the next payment of Service Fee
payable by Party A to Party B.
2. Party B agrees to provide the Technical Support Service listed in
Schedule A hereof and as requested by Party A.
3. Unless otherwise agreed by Party B in writing, Party A shall not retain
any third party to provide the services listed in Schedule A hereof.
4. It is further agreed by the Parties that the service fees payable
between February 19 and November 2003 under the previous Technical
Support Agreement, the Amendment Agreement to Technical Support
Agreement and the Supplementary Agreement to Technical Support Agreement
shall be adjusted accordingly pursuant to this Article 1.
ARTICLE 2 TERM, TERMINATION AND SURVIVAL
1. Term. This Agreement shall be effective upon execution hereof by
authorized representatives of the Parties and shall remain effective for
a period of ten (10) years, which will be automatically renewed for
another one (1) year upon expiry of each term unless Party B notifies
Party A of its intention not to renew thirty (30) days before the
current term expires. Party A shall not terminate this Agreement within
the term of this Agreement.
2. No Further Obligations. Upon termination of this Agreement, Party B
shall have no further obligation to render any Technical Support Service
hereunder to Party A.
3. Survival. Termination of this Agreement shall not affect any obligation
owed by one Party to the other Party that have accrued prior to such
termination.
ARTICLE 3 MISCELLANEOUS
1. Entire Agreement. This Agreement constitutes the entire agreement among
the Parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings or arrangements, oral or
written, between the parties hereto with respect to the subject matter
hereof.
2. Amendment. No variation of or supplement to this Agreement shall be
effective unless the Parties have agreed in writing and have
respectively obtained the required authorizations and approvals
(including an approval that Party B must obtain from the audit committee
or other independent institution, which has been established under the
Xxxxxxxx-Xxxxx Act and the NASDAQ Rules, of the board of
directors of Party B's overseas holding company, Xxxxxx Interactive
Entertainment Limited).
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3. Waiver. A waiver on the part of any Party hereto of any rights or
interests of any part under this Agreement shall not constitute the
waiver of any other rights or interests or any subsequent waiver of such
rights or interests. The failure of any Party at any time to require
performance by the other Party under any provision of this Agreement
shall not affect the right of such Party to require full performance
from the other Party at any time thereafter.
4. Assignment, Obligations of Transferees. This Agreement shall be binding
upon the Parties hereto and their respective successors and permitted
transferees and assignees and it shall be made for the interests of
these parties. Without the prior written consent of the other Party
hereto, neither Party shall assign or transfer any rights or obligations
that it may have under this Agreement.
5. Governing Law. The execution, interpretation, performance and
termination of this Agreement shall be governed by and construed in
accordance with the laws of the PRC.
6. Notice. Any notice, request or other communication to be given or made
under this Agreement shall be in writing. Any such communication may be
delivered by hand, air-mail, facsimile or established courier service to
the Parties' addresses specified below or at such other address that a
Party notifies to the other Party from time to time, and will be
effective upon receipt (if a communication is delivered by facsimile,
the time of the receipt of the facsimile shall be the time when the
sender receives a confirmed transmittal receipt).
For Party A:
Shanghai Xxxxxx Networking Co., Ltd.
Address: 00xx xxxxx, Xxx Xxxx Xxxxx, 0000 Xxxxx Xxxxxx Road,
Shanghai, PRC
Postal Code: 200122
Attention:
Fax: 50504720-8088
For Party B:
Shengqu Information Technology (Shanghai) Co., Ltd.
Address: Room 638-7, Building 0, 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx Xx-Xxxx Xxxx, Xxxxxxxx, Xxxxx
Attention: Xx Xxx QianQian
Fax:
7. Severability. The invalidity, illegality or unenforceability of any
provision of this Agreement shall not affect the validity, legality or
enforceability of any other provisions. This Agreement shall continue in
full force and effect except for any such invalid, illegal or
unenforceable provision.
8. Headings. The headings throughout this Agreement are for convenience
only and are not intended to limit or be used in the interpretation of
the provisions of this Agreement.
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9. Language and Counterparts. This Agreement is executed in Chinese. This
Agreement and any amendment hereto may be executed by the Parties in
separate counterparts, each counterpart shall be the original and all of
which together shall constitute one and the same instrument.
10. Dispute Resolution. All disputes arising from the execution of, or in
connection with this Agreement shall be settled through amicable
negotiations between the Parties. If no settlement can be reached
through amicable negotiations, the dispute shall be submitted to the
China International Economic and Trade Arbitration Commission (CIETAC)
Shanghai Commission for arbitration, in accordance with its then
effective arbitration rules. There shall be three arbitrators. The
arbitration shall be held in Shanghai and the language of the
arbitration shall be Chinese. The arbitral award shall be final and
binding on both Parties. The costs of the arbitration shall be borne by
the losing Party, unless the arbitration award stipulates otherwise.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective duly authorized signatories as of the day
and year first written above.
Party A: Shanghai Xxxxxx Networking Co., Ltd.
(Seal)
---------------------
Authorized representative
Party B: Shengqu Information Technology (Shanghai) Co., Ltd.
(Seal)
---------------------
Authorized representative
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SCHEDULE A
TECHNICAL SUPPORT SERVICE TO BE PROVIDED
Technical Support Service to be provided by Party B to Party A shall be as
follows subject to the regulation of applicable laws:
1. Maintenance of relevant networking and equipments such as servers,
switches and firewall
2. Introducing and importing of online games and technical consultation
3. Online game testing and technical evaluation
4. Inspection, installation and daily maintenance of servers
5. Consulting services on the internet security
6. Maintenance of billing system
7. Maintenance of online payment system
8. Maintenance of users' service platform
9. Development and maintenance of office internal automatization and ERP
system
10. Supervision and maintenance of office internal computers and networking
equipments
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