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EXHIBIT 4.59
SOFTWARE LICENSE AGREEMENT
The Software License
Agreement (this "Agreement") is made on January 1, 2004
in
Shanghai by and
between:
Licensor: Shanghai Huitong
Information Company Limited
Registered Address: No. 28,
Jiajian Road, Jiading District, Shanghai City
Licensee: Shanghai Weilan
Computer Company Limited
Registered Address: No. 558,
Dazhi Road West, Malu Town, Jiading District,
Shanghai City
The Licensor and the Licensee
are each a "Party" and collectively the "Parties".
WHEREAS:
(1) The Licensor is a wholly
foreign-owned enterprise established in Shanghai
under the
laws of the PRC, which owns the copyright of and title
to
"Linktone
Short Message Platform System Software V1.0"
(hereinafter
referred
to as the "System Software") that is to be officially launched
on
June 30,
2004;
(2) The Licensee is a domestic
company incorporated in Shanghai under the laws
of the PRC
and approved by Shanghai Communications Administration,
which
is allowed
to engage in the operation of information service
business
(excluding
the businesses of internet information service and
telephone
information service);
(3) The Licensor agrees to grant
to the Licensee a license for the use of the
System
Software and to provide technical support service in
relation
thereto,
while the Licensee agrees to accept from the Licensor
such
license
for the use of the System Software and to pay any costs
in
connection
therewith.
The Parties, after
consultation, hereby agree as follows:
1. Content and Scope of
the License
1.1 The Licensor shall grant to
the Licensee a license in respect of the
System
Software.
1.2 During the term of this
Agreement, the Licensor shall at the same time
provide
the Licensee with guarantees and support in connection with
the
license as
follows:
1.2.1 Installation, basic
training and guarantee for set-up: The Licensor shall
provide
training on software installation and basic training to
the
Licensee
and, if necessary, training on initial set-up of
software.
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1.2.2 Guarantee for
additional training: If the Licensee requests the
Licensor
to give
additional training, the Licensor shall, at the request of
the
Licensee,
use its best efforts to provide such training in a
timely
manner.
1.2.3 Guarantee for
maintenance and upgrading: The Licensor undertakes that
it
will
correct all mistakes and/or malfunction in the licensed
System
Software,
and provide maintenance support service that is used in
the
System
Software, including without limitation, the maintenance
and
upgrading
of the technology and content of the System Software.
1.2.4 Guarantee for safe
operation of software: The Licensor shall provide
support at
any time during the term hereof to ensure the safe
operation
of the
System Software.
1.3 The license in connection
with the System Software hereunder shall be
non-transferable and non-exclusive.
1.4 The license granted by the
Licensor to the Licensee hereunder in respect
of the
System Software shall be valid only for the value-added
telecommunication business operated by the Licensee. The Licensee
agrees
not to
directly or indirectly use or authorize others to use the
above
System
Software in any manner, unless specified to the contrary in
this
Agreement.
1.5 The license granted to the
Licensee hereunder shall be valid in the
People's
Republic of China only. The Licensee agrees not to use
or
authorize
others to use the above System Software directly or
indirectly
in other
areas.
2. Ownership and
Intellectual Property Right
The
Licensor specially covenants and warrants that it owns the
entire
copyright
of the System Software and the rights granted to the
Licensee.
These
copyright and license rights are all the rights to which
the
copyright
owner of the System Software is entitled, and in respect
of
which no
infringement of others' rights exists. The Licensor
specially
warrants
that it has completed or will complete the registration of
any
related
software products with the appropriate governmental
authorities.
3. Cost and
Payment
Due to the
fact that (i) the license for the use of the System
Software
and the
service provided by the Licensee are major parts that
are
indispensable for the commencement of the value-added
telecommunication
service
business of the Licensee, (ii) the development of the
value-added
telecommunication service business provided by the Licensor to
any
terminal
user is to a large extent dependent upon the quality of
such
software
and its technical service, and (iii) the Licensor of the
System
Software
has devoted a substantial amount of human and material
resources
on the
development of the System Software and is required to
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provide
the services and guarantees set forth in Clauses 1.2.1 to
1.2.3
to the
Licensee during the term hereof on a long-term basis, the
Licensor
and the
Licensee, after consultation, agree that the Licensee shall
make
the
following payments to the Licensor in accordance with the
requirements
as
follows:
3.1 During the license period of
the System Software, the Licensee shall pay
to the
Licensor a software license fee and technical service fee
as
follows:
(i) during
the period from the testing of a product until its
official
launch, a
sum which is equivalent to 5% of the total revenue of
short
messages
shall be paid;
(ii)
during the period from the official launch of the product to
its
reporting
date, a sum which is equivalent to 15% of the total revenue
of
short
messages shall be paid;
(iii)
since the reporting date of the product, a sum which is
equivalent
to 30% of
the total revenue of short messages shall be paid.
3.2 The actual revenue of the
product shall be derived from the book sales
revenue of
the Licensee after deduction of the amount owed to
mobile
operators.
The Licensee shall submit to the Licensor a statement of
sales
revenue
regarding the System Software of the previous month within 7
day
after the
end of each month.
3.3 The Licensee shall pay the
software license fee on a monthly basis, and
shall,
within 7 days after the end of each month, pay to the Licensor
the
software
license fee in connection with the sales revenue
actually
received
in the prior month.
3.4 The Licensee shall, within
one month after the expiration of this
Agreement,
continue to pay to the Licensor all the software license
fees
in
connection with the revenues received prior to its expiration and
which
is payable
but has not yet been paid under this Agreement.
3.5 Payment Method:
In
accordance with this Agreement, all amounts payable by the Licensee
to
the
Licensor shall be in Renminbi and transferred through banks to
the
following
account:
Bank where
account is opened:
Address:
Account
Number:
4. Software Protection
and Confidentiality
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4.1 Software
Protection
4.1.1 The Licensee agrees to
offer to the Licensor all assistance that is
necessary
for the protection of any rights to which the Licensor
is
entitled
in respect of the System Software. Once a claim is made by
any
third
party against the System Software, the Licensor may, at its
own
expense,
defend itself in proceedings in respect of such claim, the
name
of the
Licensee or both Parties. In the event of any infringement on
the
System
Software by a third party, the Licensee, to the extent that
such
infringement is known to it, shall immediately notify the Licensor
in
writing of
the infringement of the above rights; only the Licensor
shall
have the
right to decide whether an action shall be taken against
such
infringement.
4.1.2 The Licensee agrees
that it will only use the System Software in
compliance
with this Agreement and the System Software shall not be
used
in a
manner which, in the opinion of the Licensor, is
deceptive
