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EXHIBIT 4.62
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
Photos and Tones Cellphone Software V1.0" (hereinafter
referred
to as the
"Cellphone Games Software") that is to be officially launched
on
March 2,
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
Cellphone
Games 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
Cellphone Games 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
Cellphone
Games 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
Cellphone
Games
Software, and provide maintenance support service that is used
in
the
Cellphone Games Software, including without limitation,
the
maintenance and upgrading of the technology and content of the
Cellphone
Games
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
Cellphone Games Software.
1.2.5 Guarantee for market
demand and sales: The Licensor undertakes that, with
its
expertise in the Cellphone Games Software, it will offer
technical
assistance
to the Licensee in respect of marketing and sales support
work.
1.3 The license in connection
with the Cellphone Games 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
Cellphone Games 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
Cellphone
Games 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 Cellphone Games 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 Cellphone Games Software and the rights granted to
the
Licensee.
These copyright and license rights are all the rights to
which
the
copyright owner of the Cellphone Games 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 Cellphone
Games
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
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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 Cellphone Games Software
has
devoted a
substantial amount of
human and material resources on the
development of the Cellphone Games Software and is required to
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 Cellphone Games Software, the Licensee
shall pay
to the Licensor a software license fee and technical
service
fee which
are equivalent to 92% of the actual revenue of a product
arising
out of the
use of such Cellphone Games Software.
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 Cellphone Games 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
4.1 Software
Protection
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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 Cellphone Games Software. Once a claim is
made
by any
third party against the Cellphone Games 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 Cellphone Games 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 Cellphone Games Software in
compliance
with this Agreement and the Cellphone Games Software shall
not
be used in
a manner which, in t
