Exhibit 4.59
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (hereinafter referred to as "this Agreement") is
entered into by and between the following two parties in Shanghai on January 1,
2005.
Party A/The licensor: Shanghai Huitong Information Co., Ltd.
Address: ▇▇.▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Party B/The licensee: Shanghai Weilan Computer Co., Ltd.
Address: No.558, Da-Zhi Road West, Ma-Lu Town, ▇▇▇ ▇▇▇▇ District, Shanghai
The licensor and the licensee are each referred to as "either party", and
jointly referred to as "the two/both parties".
Whereas:
(1) The licensor is a wholly foreign owned company incorporated in Shanghai
under the laws of PRC, and owns the intellectual property and ownership in the
"Linktone Short Message Platform System Software V1.0" (hereinafter referred to
as the "system software");
(2) The licensee is a wholly domestic invested company incorporated in Shanghai
under the laws of PRC, and has been approved by Shanghai Municipal
Communications Administration to provide information service (excluding Internet
information service and telephone information service);
(3) The licensor permits the licensee to use the system software and provide it
with relevant technical support service; whilst the licensee agrees to accept
the authorization by the licensor to use the system software and pay related
fees accordingly.
NOW THEREFORE, after friendly negotiation the two parties hereby agree as
follows:
1. Licensed content and scope:
1.1 The licensor grants the licensee the right to use the aforesaid system
software.
1.2 Within the term of this Agreement, the licensor provides the licensee with
the following guarantees and support with regard to the use of the system
software:
1.2.1 Guarantee for installation, preliminary trainings and adjustments: the
licensor shall provide the licensee with software installation and preliminary
trainings, and also make initial adjustments into the software when necessary.
1.2.2 Guarantee for additional training: if the licensee requests the licensor
to provide additional training, the licensor shall do its utmost to provide such
training in time as requested.
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1.2.3 Guarantee for maintenance and update: the licensor commits to rectifying
the errors and/or faults in the system software, and providing maintenance for
the sake of guaranteeing the normal use of system software, including but not
limited to maintenance and update of software technology and content.
1.2.4 Guarantee for safe operations of software: the licensor shall, within the
term of this Agreement, provide support at any time to ensure the safe
operations of the system software.
1.3 The right to use the system software under this Agreement shall be
non-transferable, sole and exclusive.
1.4 The right to use of the system software granted to the licensee under this
Agreement shall be effective only within the scope of value-added telecom
service provided by the licensed party. The licensee agrees not to make use of
directly or indirectly, or authorize any other party to make use of, the
aforesaid system software in any manner, unless otherwise provided under this
Agreement.
1.5 The license to the licensee under this Agreement shall be effective only
within the territory of PRC. The licensee agrees not to make use of directly or
indirectly, or authorize any other party to make use of, the aforesaid system
software within any other region.
2. Ownership and intellectual property:
The licensor particularly agrees and guarantees that it owns the entire
intellectual property in the system software, and possesses the full power to
grant the right to use of the system software to the licensee. Such rights are
the whole rights that the owner of intellectual property of the system software
shall enjoy, and will not infringe on the rights of any other party. The
licensor particularly guarantees that it has already gone through, or is going
to go through necessary formalities for registration of those relevant software
products with competent departments.
3. Charge and payment
Considering the fact that the right to use system software and the service
provided by the licensor constitute an indispensable, significant component part
for the sake of the licensee's provision of value-added telecom service; and
that the development of value-added telecom service that the licensor provides
its end-users with is directly dependent, to a rather big extent, on the quality
of the system software and technical service; and also that the licensor has
invested a lot of manpower and resource during development of the system
software; and with an eye to the necessity of providing those service items and
guarantees listed under the sub-clauses 1.2.1, 12.2 and 1.2.3 to the licensee
for a long period of time within the term of this Agreement, both parties agree
that the licensee shall pay the following fees to the licensor as stipulated
under the following sub-clauses:
3.1 Within the period of time when the system software is used as licensed, the
licensee shall pay 1% of its total revenue earned from provision of short
message service to the licensor, as the charge for software use and access to
relevant technical service.
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3.2 The licensee shall, within the following 7 days after the ending of each
month, provide the licensor with the statement of its sales income of the system
software in the preceding month.
3.3 The licensee shall pay the charge for software use on a monthly basis. The
licensee shall, within the following 7 days after the ending of each month, pay
the charge for software use with regard to its factual sales income in the
preceding month to the licensor.
3.4 Within the ensuing one month after expiration of this Agreement, the
licensee shall, still as per this Agreement, pay the entirety of the charge for
software use which is payable but outstanding with regard to the proceeds that
it has earned prior to the date of expiration of this Agreement, to the
licensor.
3.5 Payment:
All payments that the licensee shall make to the licensor pursuant to this
Agreement shall be made in Renminbi into the following bank account via bank
transfer:
Bank of deposits: ______________________
Address: _______________________________
Account number: ________________________
4. Software protection and confidentiality
4.1 Software protection
4.1.1 The licensee agrees to provide the licensor with necessary assistance to
protect the licensor's ownership in aforesaid system software. Once any third
party claims compensation upon such software, the licensor shall be able to, at
its own discretion, respond to a lawsuit filed with regard to such compensation
in its own name, or in the licensee's name or in both parties' names. In case
that any other third party commits any behavior that infringes upon the
aforesaid system software, the licensee shall, within the limits of its own
knowledge, immediately notify the licensor in writing of the behavior that
infringes upon the aforesaid trademark; only the licensor shall have the right
to decide whether to take any action against such infringement behavior(s) or
not.
4.1.2 The licensee agrees to make use of the aforesaid system software only
under this Agreement, and not to make use of such system software in any manner
that is deemed by the licensor as fraudulent or misleading or any other manner
that jeopardizes the aforesaid system software or the business reputation of the
licensor.
4.2 Confidentiality
4.2.1 The licensee shall keep all confidential data and information of the
licensor that it knows or gets in touch with for reason of being licensed to use
the aforesaid system software (hereinafter referred to as "confidential
information") in secrecy; in addition, when this Agreement is terminated, the
licensee shall return all those files, documents and software that have borne
such confidential information to the licensor as requested by the licensor, or
destroy such files, documents and software on its own, and delete all the
confidential information from all relevant memory devices, and shall not
continue to use such confidential information. The licensee shall
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not disclose or transfer out such confidential information to any other third
party, without the written consent from the licensor.
4.2.2 Both parties agree that no matter whether this Agreement is amended,
dissolved or terminated, sub-clause 4.2.1 shall remain in effect further still.
5. Statements and undertakings
5.1 The licensor states and undertakes as follows:
5.1.1 The licensor is a company duly incorporated in accordance with, and
validly existing under, the laws of PRC.
5.1.2 The licensor signs and fulfills this Agreement within the limits of its
corporate powers and business scope; has already taken necessary corporate
behaviors and been duly authorized; and has already acquired the consent and
approval from the third party and the competent governmental agency, as well as
having not violated the restrictions imposed by those laws & agreements that are
binding or governing.
5.1.3 Once signed under laws, this Agreement shall constitute obligations that
are lawful, effective and binding on the licensor, and can be enforced towards
the licensor in line with the provisions of this Agreement.
5.1.4 The licensor owns the intellectual property and ownership in the system
software under this Agreement.
5.2 The licensee states and undertakes as follows:
5.2.1 The licensed party is a company duly incorporated in accordance with, and
validly existing under, the laws of PRC, and has been approved by the competent
department under the Chinese government to provide information service
(exclusive of Internet information service and telephone information service).
5.2.2 The licensee signs and fulfills this Agreement within the limits of its
corporate powers and business scope; has already taken necessary corporate
behaviors and been duly authorized; and has already acquired the consent and
approval from the third party and the competent governmental agency, as well as
having not violated the restrictions imposed by those laws & agreements that are
binding or governing.
5.2.3 Once signed, this Agreement shall constitute obligations that are lawful,
effective and binding on the licensee, and can be enforced towards the licensed
party in line with the terms of this Agreement.
6. Promotion
Under any circumstances, if the licensee needs to use promotional materials
regarding the system software, then it shall bear the production costs of such
promotional materials. The licensor shall own, solely and exclusively, those
intellectual properties in all the promotional materials with regard to the
trademark under this Agreement, no matter that such promotional material have
been
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invented or used by the licensor or the licensee. The licensee agrees not to
promote the public awareness of, or advertise, the system software under this
Agreement on any radio or TV channel, newspapers, magazines, Internet or any
other medium, without acquiring the prior written consent from the licensor.
7. Term of this Agreement:
7.1 This Agreement is signed and takes into effect on the date specified at the
beginning of this context; and shall be expired on 31 December 2005, unless this
Agreement is terminated earlier as stipulated herein.
7.2 This Agreement may be renewed prior to the expiration date, after the
licensor has confirmed such a renewal in writing; in such a case, the two
parties shall enter into another agreement. However, the licensee shall not have
the right to unilaterally confirm if or not this Agreement is to be renewed.
7.3 Within the term of this Agreement, the licensor shall be entitled to, at any
time, send out a written notice to the licensee for termination of this
Agreement; and such notice for termination will become effective commencing from
the 30th day after it is sent out.
8. Amendments and termination of agreement:
Either party shall be entitled to send out a written notice to the other party,
which has committed any behavior in severe violation of this Agreement
(including but not limited to violation of its obligations described under
Clause 2 or Clause 3 under this Agreement) and has further failed to rectify its
violation behavior as such within the ensuing 30 days after its receipt of a
notice sent out by the non-breaching party with regard to both the occurrence
and existence of its violation behavior, for terminating this Agreement
immediately; however, the termination of this Agreement shall not jeopardize any
right or relief that the party asking for termination of this Agreement has
enjoyed according to laws or for any other reason.
9. Force majeure
9.1 "Force majeure" meanz all those events which cannot be foreseen at the time
of signing this Agreement, and whose occurrences and consequences cannot be
avoided or overcome, and that occur after the date when this Agreement is signed
and impede either party from fulfilling a part or the whole of this Agreement.
Such events include earthquake, typhoon, flood, fire, warfare, discontinuity of
international or domestic transportation work, prohibition or any other similar
action taken by the government or any other public agency, infectious disease
and any other accidents that cannot be foreseen, avoided or overcome, including
those events that are defined as force majeure events according to the generally
acknowledged business practices.
9.2 In case of occurrence of any force majeure event, either party shall be able
to suspend fulfillment of its obligations which are affected by such a force
majeure event during the period of
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postponement thus incurred, and postpone the time limit for its fulfillment of
such obligations accordingly; the time length of such a postponement shall be
equal to the period of time when the fulfillment of such obligations is
suspended; and the affected party does not need to pay any penalty or make any
compensation in such a case.
9.3 The party that claims the occurrence of force majeure shall, within the
ensuing ___ days after occurrence of the force majeure event, notify the other
party of the occurrence of such a force majeure event in written, plus the time
length of its duration. Furthermore, the party that claims the occurrence of
force majeure shall make all rational efforts to terminate the force majeure.
9.4 In case of occurrence of any force majeure event, the two parties shall
immediately negotiate with each other to seek after an equitable method of
settlement and make all rational efforts to minimize the consequences of this
force majeure event.
10. Notification
10.1 In case of occurrence of any matter that is likely to give rise to any
dispute or affect the fulfillment of this Agreement, either party shall have the
obligation to notify the other party in writing in an effective manner within a
reasonablel period of time.
10.2 The effective modes for acknowledgement for receipt of a notice under this
Agreement include: registered mail, express mail, and courier delivery.
10.3 Any written notice, no matter sent by registered mail, express mail or
courier delivery, shall be deemed as being received on the date when the
concerned recipient puts his or her signature on acknowledgement for his or her
receipt of such a notice, or on the 7th day after being sent out. If the date of
signing the acknowledgement for receipt of this notice comes earlier than the
7th day after the notice is sent out, then the same notice shall be deemed as
being received on the date of signing the acknowledgement; and on the contrary,
the notice shall be deemed as being received on the 7th day after the notice is
sent out. All notices shall be sent to the following addresses of the two
parties:
Party A's address: ▇/▇., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ East, Zip Code:
200001
Party B's address: ▇/▇., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ East, Zip Code:
200001
Either party that needs to change its address stated above must notify the other
party in writing.
11. Settlement of disputes
11.1 In case that any disputes arise between the two parties with regard to
their fulfillment of relevant matters under this Agreement, they shall firstly
endeavor to solve such disputes through friendly negotiations. In case that they
fail to solve such disputes after negotiating with each other in a friendly
manner, it is then necessary for them to render such disputes for settlement via
litigation or in a non-litigant way.
11.2 In case that the disputes between the two parties cannot be solved through
friendly negotiations, either party shall be entitled to institute legal
proceedings to the People's Court in the
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place where the licensor is located.
11.3 The other matters under this Agreement than those in disputes shall be
performed as per the stipulations under this Agreement further still, during the
course of litigation.
12. Governing laws
This Agreement shall be governed by, and interpreted in accordance with, the
laws of the People's Republic of China.
13. Effectiveness of agreement
This Agreement shall come into effect immediately upon execution by the
authorized representatives of the two parties.
14. General provisions
14.1 Either party's exemption of the other party ("the latter") from the
latter's responsibility for either violation or failure in fulfillment of any
clause under this Agreement, or the latter's failure in fulfilling any clause or
any right under this Agreement for one or more times must not be construed as
any amendment into any right under this Agreement and a waiver of its right of
investigating into the latter's responsibility for any subsequent violation or
failure in fulfillment of this Agreement, or a waiver of any of such clauses or
rights in this Agreement.
14.2 The ineffectiveness of any clause in this Agreement must not affect the
effectiveness of any other clause under this Agreement. In the event that any
clause under this Agreement is found ineffective, such a clause shall be deemed
as having been superseded by a different clause which caters for the original
interests of the parties as much as possible and will not become ineffective.
14.3 The licensee shall not transfer or lease out, put in pledge, or re-license
this Agreement and any of those rights and obligations that the licensor
licenses to the licensee under this Agreement to any third party, without
acquiring the written consent upon doing so from the licensor; meanwhile, the
licensee shall not transfer out any portion of its economic interests that it
has acquired via licensing, or its rights under this Agreement, in any manner to
any third party.
14.4 This Agreement and its appendixes shall constitute the entire agreements by
and between the parties under this Agreement with regard to the subject matter
of this Agreement. In the event that this Agreement conflicts with any of those
prior understandings, statements, arrangements, undertakings and agreements
reached by and between both parties orally or in writing, the Agreement shall
prevail, and also supersede all those oral or written understandings,
statements, arrangements, undertakings and agreements that conflict with this
Agreement.
14.5 The clause titles that are inserted into this Agreement have been given
only for reading facilitation purpose, and shall not be used to explain the
clauses; besides, these titles do not constitute any restrictions against the
contents of this Agreement, either.
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15. Supplementary provisions
15.1 This Agreement is written in two counterparts, each party to retain one.
15.2 Those documents and agreements with regard to licensing software that the
two parties have signed shall constitute the appendixes to this Agreement. These
appendixes shall each constitute an integral component part of this Agreement,
and shall be of equal legal effect with this Agreement.
15.3 It is allowed to revise, amend or supplement this Agreement after the two
parties have agreed to do so through negotiations; in the meantime, such
revision, amendment and supplementation into this Agreement shall not become
effective until having been signed in writing by the authorized representatives
of the two parties and also having borne the official seals of the two parties.
15.4 Those matters not covered under this Agreement shall be handled by and
between the two parties in conformity to the Contract Law of the People's
Republic of China and relevant laws and regulations.
The licensor: Shanghai Huitong Information Co., Ltd.
Authorized representative: Sealed
The licensed party: Shanghai Weilan Computer Co., Ltd.
Authorized representative: Sealed
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