Exhibit 10.49
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement") is entered into as of May
5, 2004 between the following two parties in Beijing.
The Licensor: Hurray! Times Communications (Beijing) Ltd.
Legal Address: Xx.X00, Xxxxx X, Xxxx Xxxx Xxxxx, Xx.0 Huayuan Road,
Haidian District, Beijing
The Licensee: Beijing Cool Young Information Technology Co., Ltd.
Legal Address: Xxxx 000, Xxxxx 0, Xx.00, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx
WHEREAS, the Licensor, a wholly-owned foreign enterprise registered in
Beijing under the laws of the People's Republic of China (the "PRC"), owns the
copyright of the software described in Appendix 1;
WHEREAS, the Licensee, a limited liability company registered in Beijing
under the laws of the PRC, is licensed by competent governmental authorities to
operate the business of value-added telecommunications services;
WHEREAS, the Licensor desires to license the rights to use the software
provided under this Agreement to the Licensee in accordance with the terms and
conditions set forth herein, and the Licensee wishes to accept the license in
accordance with the terms and conditions set forth herein;
NOW THEREFORE, the parties agree as follows:
1. Grant of License
1.1 Softwares License
According to the terms and conditions hereinafter set forth, the Licensor
agrees to grant a license to the Licensee to use the software provided under
this Agreement (as listed in Appendix 1, hereinafter the "Software"), and the
Licensee accepts the license to use the Software. The license hereunder is
non-exclusive.
1.2 Territory
1.2.1 The use of the Software granted by the Licensor to the Licensee
extends only to the scope of the business operated by Licensee
relating to the value-added telecommunications services operated by
the Licensee. The Licensee agrees
that it will not otherwise directly or indirectly use, or authorize
others to use the Software, unless this Agreement provides to the
contrary.
1.2.2 The license hereby granted extends only to the PRC. The Licensee
agrees that it will not directly or indirectly use, or authorize
others to use the Software in any other area.
2. Terms of Payment
The Licensee agrees to pay to the Licensor a license fee and the details of
the license fee, the calculation method, and the form of payment are set forth
in Appendix 2.
3. Goodwill
The Licensee recognizes the value of the goodwill associated with the
Software, and acknowledges that the Software and all intellectual property
rights therein and goodwill pertaining thereto shall be solely owned by the
Licensor, and that the Software has a secondary meaning in the mind of the
public.
4. Confidentiality
4.1 The Licensee shall protect and maintain the confidentiality of any and
all confidential data and information acknowledged or received by the
Licensee by accepting licensing of the Software from the Licensor
(collectively the "Confidential Information"). Upon termination of
this Agreement, the Licensee shall, at the Licensor's request, return
all and any documents, information or software containing any of such
Confidential Information to the Licensor or destroy it and delete the
Confidential Information from any electronic devices and cease to use
them. The Licensee shall not disclose, grant or transfer any
Confidential Information to any third party without the Licensor's
prior written consent.
4.2 Section 4.1 shall survive any amendment, expiration 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 registered and validly existing
under the laws of the PRC;
5.1.2 the Licensor, subject to its business scope, has full right,
power, authority and capacity and all necessary consents and
approvals of any other third party and
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government to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts;
5.1.3 the Agreement will constitute a legal, valid and binding
agreement of the Licensor and will be enforceable against the
Licensor in accordance with its terms upon its execution;
5.1.4 the Licensor has the copyright and ownership of the Software.
5.2 The Licensee represents and warrants as follows:
5.2.1 the Licensee is a company duly registered and validly existing
under the laws of the PRC and is licensed by the relevant PRC
government authority to engage in the business of providing
information services in respect of value-added telecommunications
services;
5.2.2 the Licensee executes and performs this Agreement within its
corporate authority and business scope, and it has obtained all
necessary consents and approvals of any other third party and
government to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts.
5.2.3 the Agreement will constitute a legal, valid and binding
agreement of the Licensee and will be enforceable against the
Licensee in accordance with its terms upon its execution.
6. The Licensor's Rights of Licensing and Protection of the Licensor's Rights
6.1 The Licensee agrees that it will not during the term of this
Agreement, or thereafter, question the license right or any other
rights of the Licensor in and to the Software or question the validity
of this license or otherwise take or fail to take any action that
impairs such rights or license.
6.2 The Licensee agrees to assist the Licensor to the extent necessary in
the procurement of any protection or to protect any of the Licensor's
rights to the Software. In the event any third party lodges a claim
concerning the Software, the Licensor, if it so desires may commence
or prosecute any claims or suits in its own name or in the name of the
Licensee or join the Licensee as a party thereto. In the event any
third party infringes the Software, the Licensee shall notify the
Licensor in writing of any infringements or imitations by others of
the Software which may come to the Licensee's attention, and the
Licensor shall have the sole right to determine whether or not any
action shall be taken on account of any such infringements.
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6.3 The Licensee further agrees to use the Software only in accordance
with this Agreement and shall not use the Software in any way which,
in the opinion of the Licensor, is deceptive, misleading or in any way
damages the Software or the reputation of the Licensor.
7. Quality
The Licensee shall use its reasonable best efforts to improve the quality
of its business, in order to protect and enhance the reputation of the Software.
8. Promotion Materials
In all cases where the Licensee uses promotional materials relevant to the
Software, the production cost of such materials shall be borne by the Licensee.
All copyrights or other intellectual property rights of such materials
concerning the Software shall be the sole and exclusive property of the Licensor
whether developed by the Licensor or the Licensee. The Licensee agrees not to
promote or advertise any of the Software on radio, television, newspapers,
magazines, the Internet or other media without the prior written consent of the
Licensor.
9. Effective Date and Term
9.1 This Agreement has been duly executed as effective on the date first
set forth above. The term of this Agreement is ten (10) years unless
earlier terminated as set forth below. However, the Licensor and the
Licensee shall review this Agreement every 3 months to determine
whether any amendment to the Agreement is necessary after considering
the circumstances.
9.2 This Agreement may be extended for one year if the Licensor gives the
Licensee its written consent of the extension of this Agreement before
the expiration of this Agreement. However, the Licensee has no right
to confirm such extension.
10. Record Filing
Within three (3) months after the execution of the Agreement, the Licensor
shall make a record filing of a copy of this Agreement to the relevant software
administration authority of China.
11. Termination
11.1 Termination or Expiration.
This Agreement shall expire on the earlier of the termination date or the
date when the Licensor's right of licensing the Software under this
Agreement is terminated,
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unless this Agreement is extended as set forth above.
11.2 Early Termination
Without prejudice to any legal or other rights or remedies of the party who
asks for termination of this Agreement, any party has the right to
terminate this Agreement immediately with written notice to the other party
in the event the other party materially breaches this Agreement including,
without limitation to Sections 6.1, 6.2 and 6.3 of this Agreement and fails
to rectify its breach within 30 days from the date it receives written
notice of its breach from the non-breaching party.
During the term of this Agreement, the Licensor may terminate this
Agreement at any time by a written notice to the Licensee, and the
termination shall be effective 30 days after the termination notice is
delivered.
11.3 Survival.
Articles 3, 4, 6, 15 and 16 shall survive after the termination of this
Agreement.
12. Force Majeure
12.1 Force Majeure shall refer to any event that is beyond the party's
reasonable control and cannot be prevented with reasonable care,
including acts of governments, acts of nature, fire, explosion,
typhoon, flood, earthquake, tide, lightning or war. However, any
shortage of credit, capital or finance shall not be regarded as an
event beyond the control of a party. The party affected by Force
Majeure shall notify the other party about the release without delay.
12.2 In the event that the affected party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure, only
within the scope of such delay or prevention, the affected party will
not be responsible for any damage by reason of such a failure or delay
of performance. The affected party shall take appropriate means to
minimize or remove the effects of Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the event of
Force Majeure. After the event of Force Majeure is removed, both
parties agree to resume performance of this Agreement with their best
efforts.
13. Notices
Notices or other communications required to be given by any party pursuant
to this Agreement shall be written in English and Chinese and shall be deemed to
be duly given when it is delivered personally or sent by registered mail or
postage prepaid mail or by a recognized courier service or by facsimile
transmission to the address of the relevant
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party or parties set forth below.
Licensor: Hurray! Times Communications (Beijing) Ltd.
Address: Xx.X00, Xxxxx X, Xxxx Xxxx Xxxxx, Xx.0 Huayuan Road,
Haidian District, Beijing
Licensee: Beijing Cool Young Information Technology Co., Ltd.
Address: Hua Ao Center, Block 3, Apt. 9E, Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx
00. Assignment or Sublicense
This Agreement and all the rights and obligations licensed by the Licensor
to the Licensee shall not be assigned, leased, pledged, sublicensed, or
otherwise transferred the economic benefits of the license granted hereby or any
portion of the rights included therein to any third party without the prior
written consent of the Licensor.
15. Settlement of Disputes
The parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement through friendly
consultation. In case no settlement can be reached through consultation within
30 days after one party ask for consultation, each party can submit such dispute
to the China International Economic and Trade Arbitration Commission (the
"CIETAC"). The arbitration shall follow the current rules of CIETAC, and the
arbitration proceedings shall be conducted in Chinese and shall take place in
Beijing. The arbitration award shall be final and binding upon the parties and
shall be enforceable in accordance with its terms.
16. Applicable Law
The validity, interpretation and implementation of this Agreement shall be
governed by the laws of PRC.
17. Amendment and Supplement to the Agreement
Any amendment and supplement of this Agreement shall come into force if in
writing and signed by both parties. The amendment and supplement duly executed
by both parties shall form a part of this Agreement and shall have the same
legal effect as this Agreement.
18. Severability
Any provision of this Agreement which is invalid or unenforceable due to
conflict of
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relevant laws in a jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability in that jurisdiction, without affecting in any
way the legal effect of remaining provisions hereof.
19. Appendices
The Appendices referred to in this Agreement are an integral part of this
Agreement and have the same legal effect as this Agreement.
20. Others
This Agreement shall be executed in Chinese in duplicate.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the date
first set forth above.
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Software License Agreement
(No Text on This Page)
By: /s/ Xiang Songzuo
------------------------------------
Licensor : Hurray! Times Communications (Beijing) Ltd.
Representative: Xiang Songzuo
By: /s/ Wei Hongbin
------------------------------------
Licensee: Beijing Cool Young Information Technology Co., Ltd.
Representative: Wei Hongbin
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Appendix 1
List of the Software
1. HS-VASPro
2. Unlimited Sky Game Software V 1.0
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License Fee Calculation Method and Payment Method
The Licensee shall pay a License fee of RMB1000 per year to the Licensor.
Based on Party A's sole decision, the Licensor may decide to exempt the
Licensee's license fee.
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