OCTOPOD SYSTEM SOFTWARE LICENSING AGREEMENT
Exhibit 4.219
OCTOPOD
SYSTEM SOFTWARE
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 ▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, the PRC (“Shengqu”
or the “Licensor”);
and
Nanjing
▇▇▇▇▇▇ 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
▇▇▇▇▇▇” or the
“Licensee”).
RECITALS
WHEREAS,
the Licensor owns the software program of Licensed Software (as defined
below);
WHEREAS,
Nanjing ▇▇▇▇▇▇ desires to license the Licensed
Software;
WHEREAS,
the Licensor is willing to license the Licensed Software to Nanjing
▇▇▇▇▇▇.
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:
| 1.1 |
“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
|
“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
|
“Designated
Computer” means the computers and the upgraded computers
thereof
|
1
|
b
installed
in the offices of the Licensee.
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1.4
|
“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
|
“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
|
“Licensed
Software” means the Octopod System, which includes the Licensed
Program and the Licensed Information, used to control local and remote
servers.
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1.7
|
“Server”
shall mean the specific server upon which the Octopod System client
software is installed and of which are incorporate into the Licensor
managed unified Octopod System.
|
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1.8
|
“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
|
License to
Use the Licensed Software. In accordance with the terms and conditions hereof,
the Licensor agrees to grant to Nanjing ▇▇▇▇▇▇ 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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SUPPORTING
FEE
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3.1
|
Upon
the installation of the Licensed Software on the Designated Computer,
Nanjing ▇▇▇▇▇▇ shall provide Shengqu with a supporting fee. The supporting
fee shall be calculated using the following formula: supporting fee=
number of Servers x RMB110.
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3.2
|
Shengqu
shall deliver the invoice to the Licensee within fifteen (15) days after
the receipt of such licensee fees and supporting
fees.
|
2
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4
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ORIGINALITY
WARRANTY
|
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4.1
|
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
|
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
|
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
|
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)
|
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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(c)
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The
Licensee uses the Licensed Software on computers other than the Designated
Computer.
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5 TERM
AND TERMINATION
3
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.
6
APPLICABLE LAWS
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
|
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
▇▇▇▇▇▇ 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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