EX-4.75 8 h01302exv4w75.txt EX-4.75 ARENA SOFTWARE III LICENSING AGREEMENT Exhibit 4.75 ARENA SOFTWARE III LICENSING AGREEMENT This Software Licensing Agreement (this "Agreement") is entered into by and between the following Parties on May 1, 2006 ("Effective Date") in Shanghai: GRANDPRO 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 No.1 Office Building, No.690 Bibo Road, Pudong New Area, Shanghai, the PRC ("Grandpro" or the "Licensor"); and SHANGHAI HAOFANG ONLINE INFORMATION TECHNOLOGY CO., LTD., a corporation organized and existing under the laws of the PRC and having its registered address at No. 2758 Huyi Road, Jiading Area, Shanghai, the PRC ("Haofang Online"). Grandpro and Haofang Online shall be referred to individually as a "Party" and collectively as the "Parties". RECITALS WHEREAS, The Licensor owns the software program of Licensed Software (as defined below); WHEREAS, Haofang Online desires to license the Licensed Software; WHEREAS, The Licensor is willing to license the Licensed Software to Haofang Online. 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 "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. 1.2 "Licensed Information" means any information concerning the Licensed Program, which is owned by the Licensor and is licensed to Haofang Online 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 Haofang Online as confidential information or proprietary property of the Licensor. 1.3 "Licensed Software" means the Haofang Networking PC Game Platform, which include the Licensed Program and Licensed Information. 1 1.4 "Authorized Personnel" means the employees of Haofang Online and personnel from third parties who work on behalf of Haofang Online under a contract (which shall include confidentiality clause) entered into and between Haofang Online and the third party. 1.5 "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. 1.6 "Designated Computer" means the computers and the upgraded computers thereof installed in the offices of Haofang Online. 1.7 "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. 2 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 Haofang Online and Haofang Online agrees to accept a nontransferable and non-exclusive license of the Licensed Software, pursuant to which Haofang Online shall be allowed to install and operate the Licensed Software on the Designated Computers and to grant to its customers the right to use such software system. 3 ROYALTY FEES 3.1 In consideration of the license granted by the Licensor of the Licensed Software, from the first month after the installation of the Licensed Software on the Designated Computer, Haofang Online shall in addition pay the Licensor a revenue sharing fee, the calculation formula of which is: revenue sharing fee = sales revenue realized by Haofang Online through the use of computers which have installed the Licensed Software x 35%. 3.2 Subsequent to the installation and formal operation of the Licensed Software, Haofang Online shall pay the Licensor revenue sharing fee on a monthly basis, and payment of the revenue sharing fee of each month shall be made within fifteen (15) days of the end of such month. 2 3.3 Grandpro shall deliver the invoice to Haofang Online within fifteen (15) days after the receipt of such installation fees. 4 ORIGINALITY WARRANTY 4.1 The Licensor warrants that the Licensed Software does not infringe any copyright, patent or trademark or proprietary information of any third Party. 4.2 In the event of any legal proceedings or claims by a third party against Haofang Online 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 Haofang Online for any cost, expense and loss and the litigation fees and attorney fees payable by Haofang Online according to the final court, provided that (a) Haofang Online promptly inform the Licensor of the claims relating to said infringements, (b) Haofang Online 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. 4.3 If Haofang Online'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 Haofang Online 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. 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: (a) the latest version of the Licensed Software, which is free of said infringement, has been provided to Haofang Online for free without any changes, and Haofang Online still uses other versions; (b) the program and data of the Licensed Software has been provided to Haofang Online based on thorough studying. Haofang Online use the Licensed Software together with other program or dada, and had Haofang Online not done so, said infringement would have been avoided. However, Haofang Online fails to avoid the use of the Licensed Software together with other program and data; (c) Haofang Online use the Licensed Software on computers other than the Designated Computer. 3 5 TERM AND TERMINATION The term of this Agreement shall commence on the Effective Date and shall expire on the first anniversary of the Effective Date. During the term of this Agreement Haofang Online shall not unanimously terminate this Agreement. 6 APPLICABLE LAWS This Agreement shall be governed by the laws of the People's Republic of China. 7 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. GRANDPRO INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD. By: /s/ Chen Tianqiao --------------------------------- Name: Chen Tianqiao Title: Chief Executive Officer SHANGHAI HAOFANG ONLINE INFORMATION TECHNOLOGY CO., LTD. By: /s/ Zhang Xiangdong --------------------------------- Name: Zhang Xiangdong Title: Vice President 5