EQUIPMENT MANAGEMENT PLATFORM SOFTWARE LICENSING AGREEMENT
Exhibit 4.192
LICENSING
AGREEMENT
This
Software Licensing Agreement （this “Agreement”） is entered into
by and between the following Parties on January 1, 2008 (“Effective
Date”) in Shanghai:
Shengqu Information Technology
(Shanghai) Co., Ltd., a corporation organized and existing under the laws
of the People’s Republic of China (the “PRC”)
and having its registered address at Xx.0 Xxxxxx Xxxxxxxx, Xx.000 Xxxx Xxxx,
Xxxxxx Xxx Xxxx, Xxxxxxxx, the PRC (“Shengqu”
or the “Licensor”);
and
Nanjing Xxxxxx
Networking Co., Ltd., a
corporation duly organized and validly existing under the laws of the PRC and
having its principal place of business at Room 801, 18 F International Garden
Apartment, High-technology Area, Nanjing, the PRC (“Nanjing
Xxxxxx” or the
“Licensee”).
RECITALS
WHEREAS, the Licensor owns the
software program of Licensed Software (as defined below);
WHEREAS, Nanjing Xxxxxx
desires to license the Licensed Software;
WHEREAS, the Licensor is
willing to license the Licensed Software to Nanjing Xxxxxx.
NOW AND THEREFORE, the parties
through consultations agree as the follows:
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1
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DEFINITIONS
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The terms
concerned used in this Agreement are hereby defined as follows:
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1.1
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“Authorized
Personnel” means the employees of the Licensee and personnel from
third
parties who work on behalf of the Licensee under a contract (which shall
include confidentiality clause) entered into and between the Licensee and
the third party.
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1.2
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“Confidential
Information” means the technical information and management
information which have not been publicly disclosed, can bring economic
benefits to obligees, have practicability and are subject to the
confidential measures adopted by the obligees, including but not limited
to computer software, technical parameter, price list, design, software
documentation, manuals, models and account
tables.
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1.3
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“Designated
Computer” means the computers and the upgraded computers thereof
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1
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installed
in the offices of the
Licensee.
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1.4
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“Licensed
Program” means the executable processing programs of licensed
information, which is composed of various modules in the Licensed Software
package provided by the
Licensor.
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1.5
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“Licensed
Information” means any information concerning the Licensed Program,
which is owned by the Licensor and is licensed to the Licensee together
with the Licensed Program. Licensed Information includes such information
as input form, user manual, interface format and input/output format and
is delivered to and used by the Licensee as confidential information or
proprietary property of the
Licensor.
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1.6
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“Licensed
Software” means the Equipment Management Platform, which includes
the Licensed Program and the Licensed Information, used to manage computer
rooms, servers, firewall and equipment data. It is also used to maintain
data, provide reminders, calculate data and provide the reports and
updates.
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1.7
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“Request
Number” shall mean the total number of written request provided by
Nanjing Xxxxxx to Shengqu.
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1.8
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“Upgrade
Version” means the Licensed Software comprising of Licensed Program
and/or the Licensed Information to which updating, enhancements,
corrections, additions of BUG patches or other changes have been made. The
exterior form of the Update Version is reflected by changes to the version
numbers. For an example, in the version number 2.1.3, a change in the
first number from left to right means the occurrence of a bigger version
of the software, a change in the second number means substantial
improvements to the software performance, and a change in the third number
means slight improvements to the software
performance.
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2
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GRANT
OF LICENSE AND LIMITATIONS
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License to
Use the Licensed Software. In accordance with the terms and conditions hereof,
the Licensor agrees to grant to Nanjing Xxxxxx a license to install and operate
the Licensed Software on the Designated Computers and to grant to its customers
the right to use such software system.
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3
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SERVICE
FEE AND SUPPORTING FEE
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3.1
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In
consideration of the daily software maintenance work conducted by Shengqu,
Nanjing Xxxxxx shall provide Shengqu with a service fee of RMB77,000 per
calendar month upon the installation of the Licensed Software on the
Designated Computer.
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2
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3.2
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Upon
the installation of the Licensed Software on the Designated Computer,
Nanjing Xxxxxx shall provide Shengqu a supporting fee. The supporting fee
shall be calculated using the following formula: supporting fee= Request
Number x RMB55,000.
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3.3
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Shengqu
shall deliver the invoice to the Licensee within fifteen (15) days after
the receipt of such licensee fees and supporting
fees.
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4
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ORIGINALITY
WARRANTY
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4.1
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The
Licensor warrants that the Licensed Software does not infringe any
copyright, patent or trademark or proprietary information of any third
Party.
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4.2
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In
the event of any legal proceedings or claims by a third party against the
Licensee alleging an infringement of any PRC copyright, patent or trade
secrets owned by such third party in connection with the use of the
Licensed Software or any part thereof within the scope of the license
hereunder, the Licensor will reimburse the Licensee for any cost, expense
and loss and the litigation fees and attorney fees payable by the Licensee
according to the final court, provided that (a) the Licensee promptly
inform the Licensor of the claims relating to said infringements, (b) the
Licensee grants the Licensor full authorization and provide the Licensor
with all information and assistance necessary for enabling the Licensor to
defend the claims, and (c) the Licensor has full control over the
defending of the claims and the negations relating to the compromise and
settlement of the claims.
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4.3
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If
the Licensee’s use of the Licensed Software will infringe or in the
Licensor’s opinion is likely to infringe the copyright, patent or trade
secrets alleged by the third party in the above mentioned claims, the
Licensor shall be entitled to adopt any measures to enable the Licensee to
continue to use the Licensed Software, or the Licensor may replace it with
substitutes or modify the Licensed Software so that it will be free of
infringement and at the same time it can achieve the equivalent function
as the Licensed Software.
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4.4
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Notwithstanding
anything provided herein, the Licensor shall not be liable for
infringement of copyright, patent or trade secret arising out of any of
the following circumstances:
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(a)
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the
latest version of the Licensed Software, which is free of said
infringement, has been provided to the Licensee for free without any
changes, and the Licensee still uses other
versions;
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(b)
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The
program and data of the Licensed Software has been provided to the
Licensee based on thorough studying. The licensee uses the Licensed
Software together with other program or dada, and had the Licensee not
done so, said infringement would have been avoided. However, the Licensee
fails to avoid the use of the Licensed Software together with other
program and data;
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3
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(c)
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The
Licensee uses the Licensed Software on computers other than the Designated
Computer.
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5
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TERM
AND TERMINATION
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The term
of this Agreement shall commence on the Effective Date and shall expire on
December 31, 2008. During the term of this Agreement the Licensee shall not
unanimously terminate this Agreement.
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6
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APPLICABLE
LAWS
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This
Agreement shall be governed by the laws of the People’s Republic of
China.
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7
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GENERAL
PROVISIONS
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This
Agreement and the exhibits hereof signed by the Parties constitutes the entire
agreement between the Parties hereto with respect to the subject matter hereof,
merges all discussions between them and supersedes and replaces any and every
other prior or contemporaneous agreement, understanding or negotiation that may
have existed between the Parties. No amendment to this Agreement shall be
effective until the Parties mutually agree in the form of a written
instrument.
[The
remainder of the Page Intentionally Left Blank]
4
IN WITNESS WHEREOF, the
Parties have each caused this Agreement to be executed and delivered by a duly
authorized representative as of the date first above written.
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SHENGQU INFORMATION TECHNOLOGY
(SHANGHAI) CO.,
LTD.
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By
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Name: Chen Tianqiao
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Title: Chief Executive
Officer
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NANJING XXXXXX NETWORKING CO.,
LTD.
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By:
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Name: Tang Jun
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Title: President
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