VIRTUAL CARD ONLINE-SALES SYSTEM SOFTWARE LICENSING AGREEMENT
Exhibit 4.178
VIRTUAL
CARD ONLINE-SALES SYSTEM
This
Software Licensing Agreement （this “Agreement”）is entered into by
and between the following Parties on January 1, 2008 (“Effective
Date”) in Shanghai:
▇▇▇▇▇▇ Computer (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 ▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ New Area, Shanghai, the PRC (“▇▇▇▇▇▇
Computer” or the “Licensor”);
and
Hangzhou Bianfeng
Networking Co., Ltd., a
corporation organized and existing under the laws of the PRC and having its
registered address at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the PRC
(“Bianfeng
Networking” or the
“Licensee”).
RECITALS
WHEREAS, the Licensor owns the
software program of Licensed Software (as defined below);
WHEREAS, Bianfeng Networking
desires to license the Licensed Software;
WHEREAS, the Licensor is
willing to license the Licensed Software to Bianfeng Networking.
NOW AND THEREFORE, the parties
through consultations agree as the follows:
1 DEFINITIONS
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 virtual card online-sales system, which
includes the Licensed Program and the Licensed Information. This system is
used by sales agents in connection with ordering and purchasing of the
virtual cards from the Licensee.
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1.7
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“North-east
China” shall mean the territory of Liaoning, Jilin and Heilongjiang
Provinces.
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1.8
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“Territory”
shall mean North-east China.
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1.9
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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 Bianfeng Networking a license for North-east
China, 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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ROYALTY
FEES
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3.1
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From
the first month after the installation of the Licensed Software on the
Designated Computer, the Licensee shall in addition pay the Licensor a
revenue sharing fee, the calculation formula of which is: revenue sharing
fee = sales revenue realized by the Licensee through the use of computers
which have installed the Licensed Software x
15%.
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2
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3.2
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Subsequent
to the installation and formal operation of the Licensed Software, the
Licensee shall pay the Licensor revenue sharing fee on a monthly basis,
and payment of the revenue sharing fee of each month shall be made within
fifteen (15) days of the end of such
month.
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3.3
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▇▇▇▇▇▇
Computer shall deliver the invoice to the Licensee within fifteen (15)
days after the receipt of such installation
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
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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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▇▇▇▇▇▇ COMPUTER (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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HANGZHOU BIANFENG NETWORKING CO.,
LTD.
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By:
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Name: Wang
Jingying
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Title: Senior Vice
President
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