EXHIBIT 4.59
SOFTWARE LICENSE AGREEMENT
The Software License Agreement (this "Agreement") is made on January 1, 2004 in
Shanghai by and between:
Licensor: Shanghai Huitong Information Company Limited
Registered Address: ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ City
Licensee: Shanghai Weilan Computer Company Limited
Registered Address: ▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ Town, Jiading District,
Shanghai City
The Licensor and the Licensee are each a "Party" and collectively the "Parties".
WHEREAS:
(1) The Licensor is a wholly foreign-owned enterprise established in Shanghai
under the laws of the PRC, which owns the copyright of and title to
"Linktone Short Message Platform System Software V1.0" (hereinafter
referred to as the "System Software") that is to be officially launched on
June 30, 2004;
(2) The Licensee is a domestic company incorporated in Shanghai under the laws
of the PRC and approved by Shanghai Communications Administration, which
is allowed to engage in the operation of information service business
(excluding the businesses of internet information service and telephone
information service);
(3) The Licensor agrees to grant to the Licensee a license for the use of the
System Software and to provide technical support service in relation
thereto, while the Licensee agrees to accept from the Licensor such
license for the use of the System Software and to pay any costs in
connection therewith.
The Parties, after consultation, hereby agree as follows:
1. Content and Scope of the License
1.1 The Licensor shall grant to the Licensee a license in respect of the
System Software.
1.2 During the term of this Agreement, the Licensor shall at the same time
provide the Licensee with guarantees and support in connection with the
license as follows:
1.2.1 Installation, basic training and guarantee for set-up: The Licensor shall
provide training on software installation and basic training to the
Licensee and, if necessary, training on initial set-up of software.
1.2.2 Guarantee for additional training: If the Licensee requests the Licensor
to give additional training, the Licensor shall, at the request of the
Licensee, use its best efforts to provide such training in a timely
manner.
1.2.3 Guarantee for maintenance and upgrading: The Licensor undertakes that it
will correct all mistakes and/or malfunction in the licensed System
Software, and provide maintenance support service that is used in the
System Software, including without limitation, the maintenance and
upgrading of the technology and content of the System Software.
1.2.4 Guarantee for safe operation of software: The Licensor shall provide
support at any time during the term hereof to ensure the safe operation
of the System Software.
1.3 The license in connection with the System Software hereunder shall be
non-transferable and non-exclusive.
1.4 The license granted by the Licensor to the Licensee hereunder in respect
of the System Software shall be valid only for the value-added
telecommunication business operated by the Licensee. The Licensee agrees
not to directly or indirectly use or authorize others to use the above
System Software in any manner, unless specified to the contrary in this
Agreement.
1.5 The license granted to the Licensee hereunder shall be valid in the
People's Republic of China only. The Licensee agrees not to use or
authorize others to use the above System Software directly or indirectly
in other areas.
2. Ownership and Intellectual Property Right
The Licensor specially covenants and warrants that it owns the entire
copyright of the System Software and the rights granted to the Licensee.
These copyright and license rights are all the rights to which the
copyright owner of the System Software is entitled, and in respect of
which no infringement of others' rights exists. The Licensor specially
warrants that it has completed or will complete the registration of any
related software products with the appropriate governmental authorities.
3. Cost and Payment
Due to the fact that (i) the license for the use of the System Software
and the service provided by the Licensee are major parts that are
indispensable for the commencement of the value-added telecommunication
service business of the Licensee, (ii) the development of the value-added
telecommunication service business provided by the Licensor to any
terminal user is to a large extent dependent upon the quality of such
software and its technical service, and (iii) the Licensor of the System
Software has devoted a substantial amount of human and material resources
on the development of the System Software and is required to
provide the services and guarantees set forth in Clauses 1.2.1 to 1.2.3
to the Licensee during the term hereof on a long-term basis, the Licensor
and the Licensee, after consultation, agree that the Licensee shall make
the following payments to the Licensor in accordance with the requirements
as follows:
3.1 During the license period of the System Software, the Licensee shall pay
to the Licensor a software license fee and technical service fee as
follows:
(i) during the period from the testing of a product until its official
launch, a sum which is equivalent to 5% of the total revenue of short
messages shall be paid;
(ii) during the period from the official launch of the product to its
reporting date, a sum which is equivalent to 15% of the total revenue of
short messages shall be paid;
(iii) since the reporting date of the product, a sum which is equivalent
to 30% of the total revenue of short messages shall be paid.
3.2 The actual revenue of the product shall be derived from the book sales
revenue of the Licensee after deduction of the amount owed to mobile
operators. The Licensee shall submit to the Licensor a statement of sales
revenue regarding the System Software of the previous month within 7 day
after the end of each month.
3.3 The Licensee shall pay the software license fee on a monthly basis, and
shall, within 7 days after the end of each month, pay to the Licensor the
software license fee in connection with the sales revenue actually
received in the prior month.
3.4 The Licensee shall, within one month after the expiration of this
Agreement, continue to pay to the Licensor all the software license fees
in connection with the revenues received prior to its expiration and which
is payable but has not yet been paid under this Agreement.
3.5 Payment Method:
In accordance with this Agreement, all amounts payable by the Licensee to
the Licensor shall be in Renminbi and transferred through banks to the
following account:
Bank where account is opened:
Address:
Account Number:
4. Software Protection and Confidentiality
4.1 Software Protection
4.1.1 The Licensee agrees to offer to the Licensor all assistance that is
necessary for the protection of any rights to which the Licensor is
entitled in respect of the System Software. Once a claim is made by any
third party against the System Software, the Licensor may, at its own
expense, defend itself in proceedings in respect of such claim, the name
of the Licensee or both Parties. In the event of any infringement on the
System Software by a third party, the Licensee, to the extent that such
infringement is known to it, shall immediately notify the Licensor in
writing of the infringement of the above rights; only the Licensor shall
have the right to decide whether an action shall be taken against such
infringement.
4.1.2 The Licensee agrees that it will only use the System Software in
compliance with this Agreement and the System Software shall not be used
in a manner which, in the opinion of the Licensor, is deceptive and
misleading, or in another manner which would cause harm to the reputation
of the System Software and the Licensor.
4.2 Confidentiality Clause
4.2.1 The Licensee shall keep in strict confidence all the confidential
materials and information of the Licensor which are known to or accessible
by the Licensee in connection with its acceptance of the license with
regard to the System Software (hereinafter referred to as the
"Confidential Information"). Upon the termination of this Agreement, the
Licensee shall also, at the request of the Licensor, return all documents,
information or software containing any Confidential Information, or
destroy them on its own and delete Confidential Information from all its
memory devices, and shall not continue to use such Confidential
Information. Without the prior written consent of the Licensor, the
Licensee shall not disclose, offer or transfer to any third party the
Confidential Information.
4.2.2 The Parties agree that Clause 4.2.1 will continue to have effect
regardless of any change, discharge or termination of this Agreement.
5. Representations and Warranties
5.1 The Licensor represents and warrants as follows:
5.1.1 The Licensor is a company duly incorporated and validly existing under the
laws of the People's Republic of China.
5.1.2 The execution and performance by the Licensor of this Agreement are within
its corporate power and business scope; have been duly authorized by all
necessary corporate action and the consent and approval from necessary
third parties and
governmental departments have been obtained; and do not contravene any law
or contractual restriction binding on or have been obtained affecting it.
5.1.3 Upon execution, this Agreement is the legal, valid and binding obligation
of the Licensor, enforceable against the Licensor in accordance with its
terms.
5.1.4 The Licensor owns the copyright of and title to the System Software
hereunder.
5.2 The Licensee represents and warrants as follows:
5.2.1 The Licensee is a company duly incorporated and validly existing under the
laws of the People's Republic of China and approved by the relevant
governmental departments of the People's Republic of China which is
allowed to engage in the operation of information service business
(excluding the businesses of internet information service and telephone
information service).
5.2.2 The execution and performance by the Licensee of this Agreement are within
its corporate power and business scope; have been duly authorized by all
necessary corporate action and the consent and approval from necessary
third parties and governmental departments have been obtained; and do not
contravene any law or contractual restriction binding on or affecting it.
5.2.3 Upon execution, this Agreement is the legal, valid and binding obligation
of the Licensee, enforceable against the Licensee in accordance with its
terms.
6. Publicity
The Licensee shall, in all cases, bear any costs in connection with the
production of any promotion materials relating to the System Software if
it needs to use them. The Licensor shall have the exclusive right to the
copyright and other intellectual property rights of all promotion
materials with regard to this Agreement, whether such promotion materials
are developed or used by the Licensor or Licensee. The Licensee agrees
that it shall not, without the prior written approval of the Licensor,
promote or advertise the System Software hereunder on broadcasting, TV,
newspapers, magazine, internet or other media.
7. Term of this Agreement
7.1 This Agreement shall be signed and become effective on the date first
written above. Unless terminated hereunder prior to its expiration, this
Agreement shall be valid until December 31, 2004.
7.2 This Agreement may be renewed prior to its expiration subject to the
written confirmation of the Licensor, and a separate agreement shall be
made in respect thereof. However, the Licensee shall have no right to
confirm unilaterally as to the renewal of this Agreement.
7.3 The Licensor may, at any time during the term hereof, serve the Licensee
written notice to terminate this Agreement and such notice shall take
effect within 30 days after it is served.
8. Amendment and Termination of this Agreement
If a party is in material breach of this Agreement (including but not
limited to violating its obligations under Clauses 3 and 4 of this
Agreement) and fails to make any remedy for its breach within 30 days of
the receipt of a notice from the other party as to the occurrence and
existence of such breach, the non-defaulting party may serve the
defaulting party a written notice to terminate this Agreement immediately,
provided that such termination will not have any prejudice to any right or
relief to which the party who demands for termination of this Agreement is
entitled under the law or otherwise.
9. Force Majeure
9.1 "Force Majeure" means any event that is unpredictable at the time of the
execution of this Agreement, its occurrence and consequence of which
cannot be avoided or overcome, and that will occur after the execution of
this Agreement which hinders the full or partial performance of this
Agreement by a party. Such events shall include earthquakes, typhoons,
floods, fire, war, any interruption of transportation service in or out of
the People's Republic of China, any acts that are prohibited by government
or public authorities or similar acts, epidemic and any other events which
are unpredictable or cannot be avoided or overcome, including any Force
Majeure events that are generally recognized under international
commercial practice.
9.2 In the case of any occurrence of Force Majeure event, a party shall
suspend the performance of its obligations hereunder so affected during
the period of delay caused by such Force Majeure event, and shall
automatically extend the time of performance of such obligations to the
extent that such extension be the same length as the time of suspension.
In addition, either party shall not be liable to pay any penalty or
compensation in respect thereof.
9.3 The party who claims for Force Majeure shall notify the other party in
writing of the occurrence of the same and its duration within days after
such occurrence. It shall also use all its reasonable efforts to terminate
such Force Majeure.
9.4 The Parties shall, upon the occurrence of the Force Majeure event,
immediately look for a fair solution through mutual consultation and use
all their reasonable efforts to mitigate any consequences arising from
such Force Majeure.
10. Notice
10.1 Any party hereto shall be under an obligation to notify the other party in
writing in an efficient manner within a reasonable time of any event which
would possibly result in disputes with or affect the performance of this
Agreement.
10.2 In this Agreement, a notice shall be effectively confirmed by way of
registered mail, express courier or personal delivery.
10.3 Any written notice to be delivered by registered mail, express courier or
personal delivery shall be deemed to have been received when the delivery
is confirmed by signature, or on the seventh day of receipt of such
notice. If former date comes earlier than the latter date, the former
shall prevail and vice versa. Notices shall be sent to the respective
address of the Parties as follows:
Address of Party A: ▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Postal Code: 200001
Address of Party B: ▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Postal Code: 200001
A written notice shall be given to the other party if any change to the
above address is made.
11. Dispute Resolution
11.1 All disputes between the Parties in connection with the performance of
this Agreement shall be first resolved through friendly consultation. If
no settlement can be reached through friendly consultation, the dispute
shall be resolved by litigation or any means other than litigation.
11.2 In the event that any disputes between the Parties cannot be resolved
through friendly consultation, either party may institute an action to the
People's Court where the Licensor is located.
11.3 Except for any matters of this Agreement that are in dispute, the other
parts of this Agreement shall continue to perform in accordance herewith
when the litigation is taken place.
12. Applicable Law
This Agreement shall be governed and construed in accordance with the Laws
of the People's Republic of China.
13. Effectiveness of this Agreement
This Agreement shall become effective once it is signed and sealed by the
respective representatives of the Parties.
14. General Provisions
14.1 Waiver by any Party hereto of a breach or non-performance of any provision
on the part of the other party, or the non-performance of any provision or
inability to exercise any right under this Agreement by any Party on one
or more occasions shall not constitute an amendment to any rights
under this Agreement, nor as a waiver of any subsequent breach or
non-performance of any such provisions or rights under this
Agreement.
14.2 The invalidity of any provision of this Agreement shall not affect the
validity of any other provisions hereof. If any provision of this
Agreement is invalid, it shall be deemed to be replaced by such provision
which will not be considered invalid and will be close to the original
intent of the Parties as nearly as possible.
14.3 Without the written consent of the Licensor, the Licensee shall not
transfer, lease, pledge or sub-license to any third parties this
Agreement nor any rights and obligations granted to the Licensee by the
Licensor hereunder. In addition, Licensee shall not transfer in any other
manner the economic interests licensed to it or any part of its rights
hereunder to third parties.
14.4 This Agreement and its attachments constitute the entire agreement between
the Parties hereto with respect to the subject matter hereof. In the event
that there are any conflicts between this Agreement and all prior
understandings, representations, arrangements, undertakings or agreements
between the Parties hereto, both oral and written, this Agreement shall
prevail and supersede all understandings, representations, arrangements,
undertakings and agreements, both written and oral, which are in conflict
with this Agreement.
14.5 Headings of this Agreement are inserted for convenience only and shall not
be used as an interpretation of any provision of this Agreement nor shall
it be constituted as restrictions on this Agreement.
15 Supplementary Provisions
15.1 This Agreement is executed in two original copies and each Party shall
keep one.
15.2 All documents and agreements executed by the Parties in connection with
the license of the System Software shall constitute attachments hereto.
They shall be the integral part of this Agreement and have the same legal
effect hereof.
15.3 This Agreement may be amended, revised or supplemented subject to an
unanimous agreement of the Parties through consultation, and shall become
effective after it is signed and sealed by the duly authorized
representatives of the Parties.
15.4 Any matter which is not covered by this Agreement shall be handled in
accordance with the Contract Law of the People's Republic of China and
relevant laws.
Licensor: Shanghai Huitong Information Company Limited
Authorized Representative: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Licensee: Shanghai Weilan Computer Company Limited
Authorized Representative: /s/ ▇▇▇ ▇▇▇▇
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