EXHIBIT 10.12
TRANSLATION
Software License Agreement
This Software License Agreement (hereinafter referred to as "This Agreement")
has been executed by and between the following parties on September 10, 2003 in
Beijing.
Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Licensee: An affiliated Chinese entity of Licensor
Address: Room ___, Building ___, _______ Street, Beijing
Whereas:
(1) Licensor is a wholly foreign owned enterprise registered in Shanghai,
the People's Republic of China (hereinafter referred to as "China"),
and has the copyright to the software ("Software") shown in Attachment
1;
(2) Licensee is a company with exclusively domestic capital registered in
China and may engage in the air-ticketing business as approved by China
Aviation Northern China Management Bureau;
Wherefore, through mutual discussion, the parties have reached the following
agreements:
1. The Grant of License
1.1 The Software
1.1.1 Licensor agrees to grant Licensee the right to use the Software in
China upon the terms and conditions of this Agreement, and Licensee
agrees to accept license upon the same terms and conditions.
1.1.2 Licensor has sole and exclusive rights to the Software, including its
improvement, upgrades and derivative works, regardless of whether the
aforementioned works have been created by Licensor or Licensee. The
rights and obligations under this Section shall survive the termination
of this Agreement.
1.2 Scope
1.2.1 The Software granted to Licensee by this Agreement shall only be used
in by Licensee's designated systems in processing the Licensee's
internal data. In the event that the designated systems are inoperable,
such programs may be used by the backup systems. Licensee shall not
sublicense the programs for use by others or use them in training third
parties, commercial sharing and leasing, unless there are contrary
provisions in this Agreement.
1.2.2 The right to use the Software granted by this Agreement to Licensee
shall be valid in China only. Licensee agrees not to directly or
indirectly use or authorize the use of said Software in any other
region.
2. Method of Payment
Licensee agrees to pay a royalty to Licensor. For the calculation method and
method of payment of the royalty, see Attachment 2 to this Agreement. At any
time, Licensor shall
EXHIBIT 10.12
TRANSLATION
have the right to relieve Licensee of the obligation to pay the royalty based on
the actual use or make an adjustment to the amount set forth in Attachment 2.
3. Licensor's Rights and Protection of Rights
3.1 Licensee agrees that during the term of this Agreement and thereafter,
it shall not challenge the copyright and other rights Licensor retains
with respect to the aforementioned Software, shall not challenge the
validity of this Agreement, and shall not engage in any actions or
omission deemed harmful by Licensor to its rights and the License.
3.2 Licensee agrees to provide necessary assistance to Licensor to protect
the rights owned by Licensor with respect to the Software. As soon as
any third party files an infringement claim against the Software,
Licensor may, at its discretion, respond to the claim lawsuit in its
own name, Licensee's name or the names of both parties. Upon the
occurrence of any infringement by any third party with respect to the
aforementioned Software, Licensee shall to the extent of its knowledge
immediately inform Licensor in writing of the infringement with respect
to the aforementioned Software; only Licensor shall have the right to
decide whether to take action against such infringement.
3.3 Licensee agrees to use the aforementioned Software only in accordance
with this Agreement, and shall not use the Software in any manner
deemed fraudulent or misleading by Licensor or any other manner harmful
to the Software or Licensor's reputation.
4. Confidentiality Clauses
4.1 Licensee shall maintain the confidentiality of any materials and
information (hereinafter referred to as "Confidential Information") of
Licensor that Licensee learns or has access to due to its acceptance of
the Software License; upon the termination of this Agreement, Licensee
shall return any document, material or software that contains such
Confidential Information to Licensor at Licensor's request, or shall
destroy same on its own, shall delete any Confidential Information from
the relevant memory devices and shall not continue to use such
Confidential Information. Without the written consent of Licensor,
Licensee shall not disclose, give or transfer such Confidential
Information to any third party.
4.2 The parties agree that this section shall survive changes to,
rescission or termination of this Agreement.
5. Representations and Warranties
5.1 Licensor represents and warrants as follows:
5.1.1 Licensor is a wholly foreign owned enterprise legally registered and
validly existing in accordance with Chinese laws.
5.1.2 Licensor shall execute and perform this Agreement within the scope of
its corporate authority and business; has taken necessary corporate
actions to give appropriate authorization and to obtain the approval
and permission from third parties and government authorities, and shall
not violate restrictions by laws and contracts binding or having an
effect thereon.
5.1.3 This Agreement shall constitute Licensor's legitimate, valid and
binding obligations as soon as it is legally executed, and shall be
enforceable against it.
5.1.4 Licensor has the copyright to the Software.
5.2 Licensee represents and warrants as follows:
5.2.1 Licensee is a company legally registered and validly existing in
accordance with Chinese laws and may engage in agency business in the
sales of air transportation upon approval by China Aviation Northern
China Management Bureau;
5.2.2 Licensee shall execute and perform this Agreement within the scope of
its corporate authority and business; has taken necessary corporate
actions to give appropriate authorization and to obtain the approval
and permission from third parties and government authorities, and shall
not violate restrictions by laws and contracts binding or having an
effect thereon.
EXHIBIT 10.12
TRANSLATION
5.2.3 This Agreement shall constitute Licensee's legitimate, valid and
binding obligations as soon as it is legally executed, and shall be
enforceable against it.
6. Effectiveness and Term
6.1 This Agreement shall be executed as of the date first above written and
shall take effect as of the even date therewith. Unless terminated
early in accordance with this Agreement, this agreement shall be valid
for a term of ten years, provided that after the execution of this
Agreement, Licensor and Licensee shall review the contents of this
Agreement every three months, to determine whether to make amendments
or supplements to this Agreement based on the circumstances then.
6.2 This Agreement may be renewed for one year upon written confirmation by
Licensor prior to the expiration of the term thereof, provided that
Licensee shall have no right to decide whether this Agreement shall be
renewed.
7. Termination
7.1 Early Termination
Without compromising the rights or remedies entitled to at law or for
other reasons by the terminating party, upon the occurrence of any
material breach by either party, including but not limited to
violations of the obligations under Section 3.1, Section 3.2 and
Section 3.3 of this Agreement and in the event that within 30 days
after receipt of notice from the non-breaching party regarding the
occurrence and existence of the breach, the breaching fails to cure its
breach, this Agreement may be immediately terminated upon written
notice to the other party. During the term of this Agreement, Licensor
may terminate this Agreement at any time upon 30 days written notice to
Licensee.
7.2 Provisions After Termination
The rights and obligations of the parties under Section 11.2, Article
3, Section 4.1 and Article 10 shall survive the termination of this
Agreement.
8. The Effect of the Termination Or Expiration of Agreement
Upon termination or expiration of this Agreement, all rights granted to Licensee
shall promptly revert to Licensor. Licensor may freely transfer the right to use
the copyright to
EXHIBIT 10.12
TRANSLATION
said Software to others. Licensee shall not use the Software anymore or directly
or indirectly use the Software.
9. Force Majeure
9.1 "Force majeure" shall refer to any event beyond the reasonable control
of either party and that still cannot be avoided even if the party
affected has exercised reasonable care, including but not limited
government actions, acts of God, fire, explosions, storms, flood,
earthquakes, tides, lightning or war. But a lack of credit, funds or
financing shall not be deemed a circumstance beyond the reasonable
control of either party. The party affected by a "force majeure event"
shall notify the other party of such relief from liability as soon as
possible.
9.2 In the event that the performance of this Agreement is delayed or
impeded by the aforementioned "force majeure," the party affected by
such force majeure shall not be liable in any way under this Agreement
to the extent of such delay or impedance. The party affected shall take
appropriate measures to mitigate or eliminate the impact of such "force
majeure" and shall attempt to resume the performance of obligations
delayed or impeded by such "force majeure." As soon as the force
majeure event is eliminated, the parties agree to use their best
efforts to resume the performance of this Agreement.
10. Resolution of Disputes
In the event of any dispute with respect to the construction and performance of
the provisions of this Agreement, the parties shall hold consultations in good
faith to resolve same. Upon failure by the parties to reach an agreement on the
resolution of such a dispute within 30 days after any party submits a request to
resolve same through consultations, any party may submit the relevant dispute to
the China International Economics and Foreign Trade Arbitration Commission
Shanghai Chapter for resolution by arbitration, in accordance with its
arbitration rules effective then. The arbitration shall be performed in
Shanghai, and the language used during arbitration shall be Chinese. The
arbitration ruling shall be final and binding on both parties.
11. Notices
Notices or other communications sent by either party as required by this
Agreement shall be written in Chinese, and a notice shall be deemed served when
it is delivered to the address of either party or the addresses of both parties
below by personal delivery, registered mail, mail with prepaid postage or
recognized express mail or facsimile.
To Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Address: 3rd fl., ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇▇▇▇▇▇
Licensee: An affiliated Chinese entity of Licensor
Address: Room ___, ______ Building, ________ Street, Beijing
Facsimile:
Phone:
EXHIBIT 10.12
TRANSLATION
12. Reassignment and Sublicense
Licensee shall not transfer, mortgage and sublicense this Agreement and the
rights and obligations of Licensee under this Agreement without the written
consent of Licensor.
13. Applicable Laws
The effectiveness, construction and enforcement of this Agreement shall be
governed by Chinese laws.
14. Amendments and Supplements
The parties shall make amendments and supplements to this Agreement in writing.
The amendment agreements and supplementary agreements that have been signed by
the parties and that relate to this Agreement shall be an integral part of this
Agreement and shall have the same legal validity as this Agreement.
15. Severability
In the event that any provisions of this Agreement are invalid or unenforceable
due to inconsistency with law, then such provisions shall only be invalid or
unenforceable to the extent of the jurisdiction of such law, and shall not
affect the legal validity of the remaining provisions of this Agreement.
16. Attachments
Any attachment to this Agreement shall be an integral part thereof, and shall
have the same legal validity as this Agreement.
EXHIBIT 10.12
TRANSLATION
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.
Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Authorized representative:
Licensee:
Authorized representative:
EXHIBIT 10.12
TRANSLATION
Attachment 1: Specific Contents of Software
Ctrip Online Reservation System
Ctrip Call-Center Reservation System
Ctrip Travel Website System
EXHIBIT 10.12
TRANSLATION
Attachment 2: The Calculation and Payment of the Software Royalty
The rate of the Software royalty shall be RMB3,000 per year, and
Licensee shall pay the aforementioned Software royalty by the April 1 every
year. Licensor shall have the right to decide at its discretion whether to waive
Licensee's Software royalty.
