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2019年新ONLINEGAMELICENSEAGREEMENT

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2019年新ONLINEGAMELICENSEAGREEMENTONLINE GAME LICENSE AGREEMENT This agreement (the “Agreement”) is made and entered into as of       (the “Effective Date”) by and between:                                         , a corporation duly organized and existing under the laws of the People’s Republic of ...
2019年新ONLINEGAMELICENSEAGREEMENT
ONLINE GAME LICENSE AGREEMENT This agreement (the “Agreement”) is made and entered into as of       (the “Effective Date”) by and between:                                         , a corporation duly organized and existing under the laws of the People’s Republic of China (“PRC”) and having its principal place of business at【】 (“Licensor”); and                                         , a company duly organized and existing under the laws of       and having its principal place of business at         (“Licensee,” together with Licensor, the “Parties” and each a “Party”). RECITALS WHEREAS, Licensor has developed a online game known as           in Chinese     (the “Game,” as further defined below); WHEREAS, Licensee would like to obtain the right, and Licensor would like to grant Licensee the right, to operate and distribute the localized version of the Game in the Territory on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the Parties hereto agree as follows: 1.   Definitions The following terms as used in this Agreement shall have the meanings set forth below: 1.1.    "Account Data" means all information pertaining to an End User, including but not limited to the End User’s (a) full name, (b) email address, (c) telephone number, (d) unique account ID and associated game play usage statistics such as time played and virtual iterm transaction records, (e) basic demographic information such as age, gender, location (State/Prefecture/County) and occupation, (f) national identification numbers, and (g) any other means of verifying the End User's right to access such End User’s game account at Licensee. 1.2.    “Affiliate(s)” with respect to a corporation, partnership or other entity, means each such other corporation, partnership or other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such corporation, partnership or other entity. For the purposes of this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such legal entity, whether through the ownership of voting securities or by contract. 1.3.    “Bug” means a material defect, error or flaw in the Localized version of the Game that materially impedes or prevents normal operation of the Localized Game despite the Localized Game being used in accordance with its instructions. 1.4.    “Business Day(s)” means any day (excluding Saturdays, Sundays or legal holidays in PRC or the Territory) on which banks generally are open for business in the PRC and the Territory. 1.5.    “Channel Cost” means the fees paid to payment gateway providers and/or the amount of discounts provided to other thirty parties from the face value associated with collecting revenue from End Users. Licensee shall send to Licensor the list and certificates certifying the payment by the Licensee of such Channel Cost. For the purpose of clarity, the authorized cost and/or fees deducted from Gross Revenue by an authorized distributor in accordance with an applicable license and distribution agreement approved by Licensor shall not be deemed as Channel Cost.   1.6.     “Client Software” means that portion of the software for the Localized Game to be distributed to End Users in order for such End Users to access the server of the Game, as the case may be, by loading this portion of software onto such End Users’ computer, and play the Game online. 1.7.    “Closed Beta Test” means the secure testing of the Localized Game by a limited number of End Users that will not be charged for any in-game items credited to their account during the period of the closed beta test. 1.8.    “Commercial Launch” means enabling the Localized Server Software and related billing system to begin collecting revenue from End Users, whether for access to the Localized Game, for purchasing virtual items to use within the Localized Game or through any other means. 1.9.    “Commercial Launch Date” means the date upon the Commercial Launch of the Localized Game occurs within the Territory. 1.10. “End User” means an user, located in the Territory, of the Localized Game, including without limitation, one who connects to the Localized Server Software for the purpose of downloading the Localized Client Software, patching, playing the localized Game, or in any other way establishing a connection to the Localized Game  servers or databases. 1.11. “EULA” means Licensee’s End User license agreement for the Localized Game, as prior approved by Licensor, the terms of which Licensee shall require End Users to accept as a condition to obtaining access to the Localized Game. 1.12. “First Level Support” means support services in the Territory intended to provided (a) direct work-around with respect to issues that arise concerning the performance, functionality or operation of the Localized Game, (b) diagnosis of problems or issues with respect to the Localized Game to be described and presented to Licensor for solution in the course of Maintenance Support, and (c) the resolution of problems or issues with respect to the supported programs other than by intervention at the level of software code. 1.13. “Game” means the initial simplified Chinese language version of the online game known as     consisting of the Client Software, Server Software and Game Content that are provided by Licensor to Licensee pursuant to the terms of this Agreement and any updates thereto that may hereafter be provided to Licensee by Licensor. Unless Licensor expressly agrees otherwise in writing, the Game does not, however, include any prior or subsequent versions of the Client Software or Server Software, or any prequels, sequels, updates, upgrades or expansions to any version of the Client Software or Server Software that are made available by Licensor or its third party publishers outside the Territory, which Licensor shall not be obligated to provide to Licensee. 1.14. “Game Content” means audio and visual works and content included within the Game, including without limitation representations of characters, places, objects, products, music, and sound effects. 1.15. “Game Data” means the data that is created and/or manipulated by the Server Software that stores permanent and persistent information about the state of play on the Localized Game including, but not limited to data regarding End User accounts, logs, billing and other game and player information. 1.16. “Game Data Center(s)” means the collection of servers located in the Territory which are required to operate and maintain the Online Services in the Territory, and on which the Localized Server Software and supporting back-office sub-systems are hosted.  1.17. “     ” means a kind of medium of exchange which is purchased by End Users in the Localized Game. The price of the      shall be determined by the Parties upon friendly negotiation. 1.18. “Gross Revenue” means any and all money and other incomes directly or indirectly received or recognized by Licensee, its agents or any sub-licensees preapproved in writing by Licensor, arising out of or resulting from the distributing, operating, providing the Localized Game and other activities related to the Localized Game. 1.19. “Government Authority” with respect to any legal entity (such as a corporation, partnership, or limited liability company) shall mean any governmental, legislative, executive, regulatory or administrative body, or any court of judicial authority, whether international, national or local, or any subdivision, agency, authority, board, bureau, commission, office or instrumentality thereof with jurisdiction over such legal entity. 1.20. Hacking” and “Anti-hacking”.  “Hacking” means any unauthorized access, programming or modification of computer code, or other action related to any game component, including without limitation any database of the Localized Game, and including without limitation, any cheats, any activity that may be construed as fraud and/or related activity in connection with computers by modifying or simulating certain parts of the game program system. Hacking programs seriously affect game balance and user experience, and in certain circumstances, a hacking program can materially interfere with the monetization of a game. “Anti-hacking” means activities carried out to prevent and resolve Hacking. 1.21. “Hardware” means the physical computers, networking equipment, support equipment, wiring and associated equipment required to run the Server Software for the Localized Game. 1.22. “Intellectual Property Right(s)” means all proprietary and intellectual property rights worldwide, whether arising under the laws of China, the Territory or any other state, country or jurisdiction, including without limitation any and all patents, copyrights, trademarks, trade secrets, character rights, trade names, rights in trade dress and all other intellectual property rights and proprietary rights, , including all rights or causes of action for infringement or misappropriation of any of the foregoing. 1.23. “Localize or Localization” means the modification of the Game for unique release in the Territory including code changes, additions and alterations to the feature set, changes in the text, incorporation of the Translation, and includes any minor change of story line proposed by Licensee. The intent is to provide an acceptable product of language requirements. “Localized” means the state of such material after it has completed Localization by Licensor or been approved by Licensor. 1.24. “Localized Game Mark” means the trademarks which are prior approved by Licensor and associate with the Localized Game in the Territory. Licensor may either register the Localized Game Marks directly or request that Licensee obtain such registration in the name of Licensor. 1.25. “Maintenance Support” means support services intended to provide (i) a diagnosis of problems or issues with the Localized Game not solved in the course of First Level Support and (ii) Patches that resolve reported and verifiable Bugs to the extent possible and feasible based on commercially reasonable effects of Licensor. 1.26.  “Online Services” means certain of the services and support of the Localized Games network infrastructure, to be provided by Licensee as set out in this Agreement including but not limited to hosting, billing, publicly displaying, marketing, operating, maintaining and granting End Users access to the Website(s) in relation to the provision of services for the Localized Game in the Territory 1.27. “Open Beta Test” means the public testing of the Localized Game by End Users, which has unrestricted or unlimited user registration and will not be charged for any in-game items credited to their account during that period of the open beta test, to fix bug or to stabilize the game system publicly in the Territory. 1.28. “Patch” or “Patches” means separate corrective software deliveries required to eliminate Bugs discovered during the use the Localized Game. 1.29. “Server Software” means that portion of the Game that is designed to allow multiple End Users that have the Client Software installed and/or running on remote personal computers or devices to interact with each other online via the Internet. 1.30. “Territory” means     . 1.31. “Translation” means the translation by Licensee of the content text of the Games and all relevant documentation from simplified Chinese into      for use in the Territory. 1.32. “Website” means the internet website located within Licensee’s portal at the URL:     , and designed, built and managed by Licensee, with host servers located in the Territory. 1.33. “Work Product” means any and all tangible and intangible property and work products, ideas, inventions, discoveries and improvements, whether or not patentable, which are conceived, developed, created, obtained or first reduced to practice by Licensee, its Affiliates or any third party under the direction or request of Licensee or its Affiliates, separately or jointly with Licensor, in connection with the preparation and integration of the Translation Assets, distribution, marketing, implementation, operation, maintenance and other exploitation of the Localized Game, and other activities contemplated by this Agreement, provided that the term “Work Product” shall not include the Traditional Chinese Translation Assets. Each of the following terms shall have the meanings ascribed to such term in the Sections set forth opposite such terms: “Agreement” Preamble “Confidential Information” Section 9.19.1 “Dispute Notice” Section 13.6 “Effective Date” Preamble “Force Majeure Event” Section 13.5 “HKIAC” Section 13.6 “IP Address” Section 2.2 “License Fee” Section 8.1 “Marketing Expense” Section 5.1 “Marketing Materials” Section 5.2 “Party” or “Parties” Preamble “PRC” Preamble “Records” Section 8.8 “Recipient” Section 9.19.1 “Royalty Fee” Section 8.2 “Royalty Statement” Section 8.3 “Supplier” Section 9.19.1 “Translation Assets” Section 4.1 “Term” Section 12.1 2.  License Grant 2.1      Exclusive Appointment.  Subject to the terms and conditions of this Agreement, Licensor hereby appoints Licensee as an independent, non-transferable, non-assignable, sole and exclusive license of Localized Game on the Website within the Territory during the Term, and Licensee hereby accepts such appointment. During the Term of this Agreement, Licensor hereby grants to Licensee a license in the Territory to: (a)   Preparation of Translation Assets.  Reproduce, modify, and otherwise use the simplified Chinese language version of the in-game assets of the Game to prepare the Translation Assets.  (b)   Client Software.  Publicly display (for marketing purposes only), market, reproduce, and distribute (through electronic method) the Localized Client Software on the Website solely for purposes of providing access to the Localized Game.  (c)    Server Software and Game Content.  Operate, maintain, and grant End Users access to the Localized Server Software, the Localized Game and the Game Content, solely as hosted on local servers owned or controlled by Licensee within the Territory, and solely for the purpose of allowing End Users to play the Localized Game as contemplated hereunder. (d)   Website Content.  Host, publicly display (for marketing purposes only), market, operate, maintain and grant End Users access to content comprising the Website. 2.2      Restrictions.  Licensee may not use or otherwise exploit the Client Software or Server Software (whether or not Localized), the Game Content, the Website content or any other components of the Game (whether or not Localized) except as expressly provided in this Agreement. Without limiting the foregoing, Licensee shall not: (a)   Modification.  Modify the Client Software, Server Software, any Game Content (in each case Localized or not), except as permitted in connection with Licensee’s preparation of the Translation Assets; (b)   Integration.  Integrate any third party materials, software or hardware with the Server Software, the Client Software, or any other Game Content (in each case Localized or not), or the Translation Assets, unless Licensee has obtained Licensor’s prior approval for such integration; (c)    Proprietary Rights Notices.  Remove or modify any trademark, copyright or other proprietary rights notices or labels on or in the Client Software or Server Software (in each case Localized or not), the Marketing Materials or packaging; (d)   Reverse Engineer.  Decipher, reverse engineer, decompile or disassemble the Client Software, Server Software or other components of the Game (in each case Localized or not), develop derivative works thereof, except for the Translation Assets, the Marketing Materials and the Website, or attempt to do any of the foregoing or knowingly allow others to do so; or (e)   Object Code.  Distribute the Localized Client Software other than in machine-readable object code format, or distribute or license the Server Software (whether localized or not) or the non-Localized versions of the Client Software. (f)     Players outside the Territory.  Given the Game is being or will be operated in mainland China and other countries and areas, in order for Licensor to coordinate the distribution and operation of the Game in different territories, Licensee shall block any access to the Localized Game by users with the internet protocol address (“IP Address”) outside the Territory. 3. Ownership and Intellectual Property Rights 3.1      Licensor’s Ownership. As between Licensee and Licensor, Licensor or its licensor owns and shall own all of the Intellectual Property Rights in and to all elements, versions, improvements and derivatives of the Game and all components thereof, whether or not Localized, including the Game Content, the Client Software, the Server Software and all Patches; trademarks; the Localized Game Marks; the Marketing Materials; the content of the Website(s); as well as all Work Product, character names and likenesses, virtual property in the Game, music, sounds, environments, inventions, and know-how relating to the implementation, design, content, Game and Game play, localization, operation and maintenance of the Game. The use by Licensee of any of the foregoing Intellectual Property Rights is authorized only for the purposes and under the terms herein set forth, and upon expiration or termination of this Agreement for any reason, such authorization shall immediately cease. All the rights granted under this Agreement are limited to the Localized Game, and the Licensor reserves all the rights to all the other language versions of the Game within the Territory and/or on the Website defined in this Agreement at its own discretion。 3.2      Work for Hire and Assignment. Licensee acknowledges and agrees that all Work Product shall be considered “work made for hire” and therefore, as between Licensor and Licensee, all right, title and interest therein (including, without limitation, all Intellectual Property Rights therein) shall vest exclusively in Licensor. In the event that all or any part of such Work Product does not qualify as a “work made for hire” under applicable law, Licensee shall, without further compensation therefore, and at Licensor's option, (a) irrevocably assign, transfer and convey in perpetuity to Licensor all of Licensee’s right, title and interest in the entire worldwide right, title, and interest in and to the Work Product (including, without limitation, all Intellectual Property Rights therein), or (b) grant a perpetual, royalty-free and assignable, sub-licensable right to Licensor to solely and exclusively use the Work Product in the Territory and other territories designated by Licensor. 3.3      Licensee’s Ownership. Licensee shall own all Hardware, subject to Licensor’s ownership of the Intellectual Property Rights contained on or in such Hardware. Licensee shall ensure that no person other than Licensor or its designees shall be permitted to remove any Hardware or component thereof containing any of the elements described in Section 3.1 without Licensor first receiving written notice and reasonable time to have such elements removed from such Hardware or component thereof.  3.4      Joint Ownership. During the Term, Licensor and Licensee shall jointly own the Translation Assets. Upon the expiration or termination of this Agreement, Licensor shall become the sole and exclusive owner of the Translation Assets including all Intellectual Property Rights thereto and Licensee shall take all actions, execute all documents and file all applications as Licensor shall reasonably request in order to effectuate, evidence, perfect and protect Licensor’s ownership interest in the Translation Assets. 3.5      Cooperation. Each Party agrees to promptly notify the other Party of any activities or threatened activities of any person of which it becomes aware which may constitute an infringement, illegal use or misuse of the Intellectual Property Rights of the other Party and may have a material adverse impact upon such other Party. Licensee agrees to use its commercially reasonable efforts to enforce or obtain protection of the Intellectual Property Rights with respect to the Localized Game in the Territory during the Term of this Agreement at its own cost. Notwithstanding the forgoing, Licensor shall have the right, but not the obligation, to take such actions as it deems reasonable to enforce or obtain protection of such Intellectual Property Rights in the Territory. 3.6      Trademarks.  During the Term, Licensee may Publicly display (for marketing purposes only), use and reproduce the Licensor’s trademarks with Licensor’s prior written approval and the Localized Game Marks solely in connection with the Localized Game. 4.  Implementation In connection with the development of the Localized Game and preparation for Commercial Launch, the Parties shall have the following responsibilities, which may be supplemented by mutual written agreement of the Parties. 4.1  Translation. Licensor shall provide to Licensee the Simplified Chinese language version of the in-game assets of the Game perceived by the End User that are required to be translated into       (specifically, the text strings, voice-overs, and in-game art with embedded text). Licensee shall use commercially reasonable efforts to translate the in-game assets into      (the “Translation Assets”) and deliver them to Licensor within 15 Business Days after receipt of such in-game assets. 4.2   Integration. Licensor shall use its commercially reasonable efforts to integrate the Translation Assets into the Client Software and Server Software and deliver the Localized Game to Licensee within       Business Days after receipt of the Translation Assets. 4.3   Closed Beta Test. Within       Business Days after Licensor’s delivery of the Localized Game, Licensee shall begin the Closed Beta Test.  4.4   Open Beta Test. Within       Business Days after commencement of the Closed Beta Test, Licensee shall begin the Open Beta Test. 4.5  Commercial Launch. Within       Business Days after commencement of the Open Beta Test, Licensee shall initiate the Commercial Launch. Upon Commercial Launch, Licensee shall immediately give Licensor a written notice specifying the date of Commercial Launch. Provided that the Commercial Launch doesn’t be initiated within the foresaid period, the last day of the foresaid period shall be deemed as the date of Commercial Launch. 5. Licensee’s Obligations During the Term of this Agreement and subject to the terms and conditions of this Agreement, Licensee shall be responsible for each of the following functions: 5.1   Marketing. Licensee shall diligently and continuously market, promote and encourage interest in the Localized Game and the Online Services with its own cost (“Marketing Expense”) within the Territory. In addition, both Parties agree that Licensee shall committee to (i) a minimum amount of Marketing Expense equals to      in the Territory and during the period from     to     ; 5.2   Marketing Materials. Licensee shall submit to Licensor for approval all materials to be used in connection with the marketing and promotion of the Localized Game and the Online Service (the “Marketing Materials”) at least two weeks prior to the initial planned use of such Marketing Materials. In connection with marketing and promotion of the Localized Game and the Online Service within the Territory, Licensee may use any Marketing Materials that have been approved by Licensor. 5.3   Distribution. Licensee shall be responsible for the distribution of the Localized Client Software and the Online Services.   5.4  Online Services. Licensee shall operate and maintain the Online Services in a secure and reliable manner consistent with the reasonable expectations of online game players in the Territory. 5.5  End User Support. Licensee shall provide game support, offline phone support, and email support to End Users within the Territory. 5.6  Billing Support. Licensee shall be responsible for billing, collection and support requirements of the Online Services, including, without limitation, operating and maintaining a secure billing system to establish new End User accounts and maintain billing records 5.7   Server System. Licensee shall ensure that the server system provided by it has sufficient processing speed and power, as well as telecommunications bandwidth, in order to effectively and efficiently serve the End Users in the Territory. Licensee shall also maintain and operate the Game Data Centers in a secure manner. 5.8   Integration with Website(s). Licensee will fully integrate the Localized Game into the Website(s) including but not limited to customer account integration, billing integration, portal user profile, reward system, and community and chat features. 5.9    Game Website. Licensee shall be responsible for creating and managing the Website and the Website shall include, among other things, an End User forum, information describing the Localized Game and the Online Services, instructions for and means of registering as an End User and instructions for obtaining the Client Software. The final form of the Website shall be subject to Licensor’s approval, which shall not be unreasonably withheld. 5.10   EULA. Licensee shall require End Users to agree to the terms of the EULA prior to obtaining access to the Localized Game. 5.11   Privacy Policy. Licensee shall be responsible for preparing and maintaining a privacy policy for Website visitors and Users which is, to the extent permissible under applicable Law, adequate to permit the uses by, and transfer to Licensor, of all data contemplated under this Agreement. 5.12   Personnel Resources. Licensee shall appoint a team of qualified personnel to be responsible for fulfilling its obligations pursuant to this Agreement, including but not limited to its obligations pursuant to this Section 5. Licensee represents and warrants that its appointed team shall have the necessary resources and capabilities to perform Licensee’s obligations hereunder in a professional manner and that such performance shall be of a high grade, nature, and quality. 5.13   Enquiry Access.  Licensee shall provide the enquiry access to Licensor when the server installation is completed and shall open the game charging API for Licensor to check the Account Data, to inquire the revenue of the Localized Game. 5.14   Non-Competition.  During the Term of this Agreement and for a period of one year thereafter, Licensee shall not directly or indirectly develop and/or distribute any game which is substantially similar to the Game or the Localized Game. 5.15   Anti-Hacking.  Licensee shall deploy or update anti-hacking solutions to the Localized Game at its reasonable discretion, and Licensor shall provide its best assistance and support with respect to such application or update. 6. Licensor’s Obligations During the Term of this Agreement and subject to the terms and conditions of this Agreement, Licensor shall be responsible for each the following functions: 6.1      Maintenance Support.  In the event that a Bug or other flaw that impairs the functionality of the Localized Game is discovered, the Parties shall use commercially reasonable efforts to repair such Bug or flaw. 6.1.1    Licensee shall provide First Level Support and establish and maintain an appropriate infrastructure and organization in the Territory accordingly. If, after having undertaken commercially reasonable endeavors to diagnose and resolve a problem or other issue with the Localized Game, Licensee is unable to do so, Licensee shall contact Licensor for Maintenance Support and provide any information and other assistance necessary for diagnosing and resolving the problem or issue. 6.1.2    Licensee shall report Bugs to Licensor using the standard problem report form, describing each problem, its context, its consequences, the action already taken by Licensee and Licensee’s assessment of the severity and urgency of such problem. Licensee shall provide Licensor with the necessary access (including but not limited to, access to repository files, log files, or database extracts recorded during daily operation of the Localized Game) required to enable proper diagnosis by Licensor maintenance staff, including but not limited to diagnosis by logging onto the Localized Game server. Licensor is not required to provide any Maintenance Support if the foregoing access or assistance is not provided by Licensee when and as requested by Licensor.  6.1.3    Subject to Licensee having made and making all payments to Licensor in accordance with this Agreement, Licensor shall use commercially reasonable efforts to provide timely Maintenance Support upon request from Licensee, and such Maintenance Support shall be provided at no additional cost to Licensee. For its commercial operations, Licensee shall always and only use the latest version of the Localized Game provided to Licensee by Licensor and ensure, at its own cost, that End Users in the Territory are promptly provided with any updates or new versions. Licensor shall not be required to correct any problem or issue with respect to the Localized Game that is not caused by a Bug. 6.1.4    Notwithstanding the other provisions in the Section 6, Licensee may not request and Licensor shall not be obliged to provide, any Maintenance Support (including without limitation corrections of Bugs of whatever severity and urgency) or other maintenance and support services in the event that Licensee or a third party has modified, amended, further developed, expanded, tampered or otherwise interfered with the Localized Game. 7. Data 7.1      Data Ownership.  Licensor shall sole own the Account Data and the Game Data. During the Term, Licensee shall ensure Licensor to be able to access all the data to the most possible extent of being allowed under applicable laws and regulations of the Territory in term of the scope and content. Upon the expiration or termination of this Agreement, Licensor shall become the sole and exclusive owner of such data. 7.2      Further Assurances. Licensee shall promptly and at its own expense deliver such documents and back-up information of the databases, and take such other actions as are necessary or are reasonably requested by Licensor to evidence or otherwise perfect Licensor’s ownership rights in the customer and user information, including but not limited to the Account Data and the Game Data . 8. License Fees and Royalty Fees 8.1  License Fees. In partial consideration of the rights granted to Licensee pursuant to this Agreement, Licensee shall pay to Licensor a non-refundable, non-recoupable license fee of      (the “License Fee”), upon the terms set forth below: (a)    equivalent to       percents (     %) of the License Fee shall be due and payable within      (     ) Business Days of the Effective Date and upon the recipient of the scan version of the invoice supplied by Licensor. (b)    equivalent to       percents (     %) of the License Fee shall be due and payable within       (     ) Business Days of the Commercial Launch Date and upon the recipient of the scan version of the invoice supplied by Licensor. 8.2      Royalty Fees. In further consideration of the rights granted to Licensee pursuant to this Agreement, Licensee shall pay to Licensor a royalty fee equals to       percent (     %) of Gross Revenues (the “Royalty Fee”) on a monthly basis. For avoidance of any doubt, when calculating the Royalty Fee, The Gross Revenues shall not be deducted with any cost and fees of any kind or nature whatsoever, including without limitation, any tax, Channel Cost or sales promotion cost etc. [ Royalty Fees. In further consideration of the rights granted to Licensee pursuant to this Agreement, Licensee shall pay to Licensor a royalty fee equals to       percent (     %) of Net Revenues (the “Royalty Fee”) on a monthly basis. The formula of Royalty Fee calculation shall be : *Net Revenue = Gross Revenue – Channel Cost (the “Net Revenue”) Channel Cost =     % of Gross Revenue] The monthly Royalty Fee shall be payable by Licensee within       (     ) Business Days of the beginning of next calendar month during the Term of this Agreement and upon the recipient of the scan version of the invoice supplied by Licensor. 8.3  Royalty Statements. Licensee shall provide Licensor with a monthly statement substantially in a form acceptable to Licensor (a “Royalty Statement”) within       (     ) Business Days of the beginning of next calendar month during the Term of this Agreement. Licensor’s receipt of any Royalty Statement or payment hereunder shall not prevent Licensor from questioning the correctness of such Royalty Statement or payment. Licensee agrees that any inconsistencies or mistakes discovered in any Royalty Statement or payment will be promptly rectified and the appropriate payments made by Licensee, which payments shall include the interest that has accrued from the date that such payment was originally due. Royalty Fees shall be remitted to Licensor in US Dollars (US$) at the average rate of selling and buying exchange rate of       on the last Business Day of the reported month. 8.4  Taxes. In the event withholding taxes are levied by tax authorities of the Territory on Licensor’s income in respect of the License Fee or the Royalty Fees, Licensee shall deduct such taxes from the License Fee and/or Royalty Fees payable by Licensee to Licensor, pay such taxes on behalf of Licensor, and supply Licensor with appropriate tax certificates or other official documents evidencing such payment. Except as otherwise expressly set forth herein, Licensee shall be solely responsible for all taxes payable with respect to the revenue or income under this Agreement. 8.5   Payments. All payments to be made to Licensor shall be in US dollars and remitted by wire transfer to the following bank account and paid in full, unless otherwise notified to Licensee by Licensor: Name of Bank:       Name of Branch:       Swift Code:      Account Number:       Beneficiary:       8.6  Wire Transfer Fees. All costs and expenditures arising from any payments made to Licensor under this Agreement, including without limitation any wire transfer fees, shall be borne by Licensee. 8.7   Late Payment. Time is of the essence with respect to all payments under this Agreement. Interest at the rate of       percent (     %) per year (but in no event more than the maximum amount permitted by law), shall accrue on any amount due hereunder from the date such amount is due until the date of payment. Licensor’s right hereunder to interest on late payments shall not preclude Licensor from exercising any of its other rights or remedies pursuant to this Agreement or otherwise with regard to Licensee’s failure to make timely remittances 8.8   Records and Audit Rights. Licensee shall maintain, during the Term and for at least three (3) years after expiration or termination of this Agreement, its records, contracts and accounts relating to the Localized Game, Licensee’s license of the same and the Gross Revenue resulting therefrom (the “Records”). Records will include all documents and other information relevant to the exercise and performance by Licensee of its rights and obligations under this Agreement. During the term and for one (1) year thereafter, Licensor shall have the right, not more than once per calendar year, to designate its employees or a certified public accountant or lawyer to examine, audit and take extracts from Licensee’s Records during normal business hours upon a thirty-day prior notice to Licensee, provided that such employees, accountant or lawyer will treat such records as the Confidential Information of both Parties and not disclose any information, except as necessary to report to both Parties on the accuracy of the calculation of the fees. In the event that any such examination or audit reveals an underpayment of amounts due, Licensee shall promptly pay the amounts owed, which amounts shall include the interest that has accrued from the date that such amounts were originally due. In the event any such underpayment due exceeds five percent (5%) of the amounts due as reported by Licensee, Licensee shall pay Licensor’s actual costs of conducting such audit in addition to the amounts due. 9. Confidentiality 9.1      Confidential Information. Confidential Information means any information, regardless of form, that is proprietary to or maintained in confidence by either party that is disclosed by either party (the “Supplier”) or on its behalf whether before, on or after the date hereof, directly or indirectly, intentionally or inadvertently, through any means of communication (whether electronic, written, oral, aural or visual) or personal inspection, to the other party (the “Recipient”) or any of its employees, Affiliates or agents, including but not limited to any source codes, object codes with connection to the Game (whether localized or not), Marketing Materials, marketing concepts and plans, personnel, research, development or know-how, the terms of this Agreement and the fact of its existence. Notwithstanding the foregoing, this Agreement, all information included in or relating to a Royalty Statement and any other financial information, including all information provided pursuant to Section 8.10 (Records and Audit Rights), shall be deemed Confidential Information of both Parties, whether or not any such information is marked as confidential. 9.2      Restrictions. Neither Party shall disclose, copy or use any Confidential Information of the other Party, except for the sole purpose of carrying out its obligations under this Agreement. Each Party shall limit the use of, and access to, the other Party’s Confidential Information to (a) its employees or Affiliates’ employees whose use of or access to such Confidential Information is necessary to carry out the receiving Party’s obligations under this Agreement and (b) constituents of the Party (e.g., board of directors, stockholders, current or potential investors and stockholders, acquirers and joint venture partners, legal counsel, accountants and other advisors) who are bound by confidentiality restrictions or have a fiduciary or ethical obligation to maintain the confidentiality of such information. 9.3      Exceptions. This Section 9 shall impose no obligation upon either Party with respect to any information which: (a) becomes publicly available through no fault of the receiving Party; (b) is rightfully known to the receiving Party at the time of receiving such information; (c) is disclosed by the disclosing Party to any third party without restriction of disclosure; (d) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information (as evidenced by written records); or (e) is required to be disclosed by law, by a government or court order, provided that, Recipient shall immediately notify Supplier of such request, requirement or direction both orally and in writing. Each party agrees to provide the other party with reasonable cooperation and assistance in obtaining a suitable protective order, and in taking any other steps reasonably necessary, to preserve the confidentiality of such Confidential Information. 10.   Representations and Warranties 10.1    Representations and Warranties of Licensor. (a)       Due Organization. Licensor is a company duly incorporated and validly existing as a company in good standing under the laws of People’s Republic of China. (b)       Authority and Enforceability. This Agreement has been duly authorized by Licensor and, when executed and delivered by the Parties, will constitute a valid and legally binding agreement of Licensor, enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (c)       Intellectual Property Rights.  Licensor owns, possesses, licenses or otherwise holds, and has authority to grant Licensee all rights granted to Licensee under this Agreement. (d)       No Infringement.  To the knowledge of Licensor, the Client Software and Server Software as provided by Licensor or its Affiliates, and any other materials provided to Licensee by Licensor or its Affiliates hereunder, do not and will not at any point during the Term infringe, misappropriate or violate any Intellectual Property Rights of any other person. 10.2    Representations and Warranties of Licensee. (a)       Due Organization. Licensee is a company duly incorporated and validly existing as a company in good standing under the laws of      . (b)       Authority and Enforceability. This Agreement has been duly authorized by Licensee and when executed and delivered by the Parties, will constitute a valid and legally binding agreement of Licensee, enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. This Agreement is in proper legal form to be enforceable against Licensee in accordance with its terms in the Territory and to ensure the legality, validity, enforceability or admissibility into evidence in the Territory of this Agreement. (c)       No Infringement. Excepting Game Content, as to which Licensee makes no representation or warranty, the Traditional Chinese Translation Assets, and any other contributions from Licensee to the Localized Client Software and Localized Server Software, and any other materials provided by Licensee hereunder, do not and will not at any point during the Term infringe, misappropriate or violate any Intellectual Property Rights of any other person. (d)       Government Licenses. Licensee has obtained and shall use its commercially reasonable efforts to maintain in good standing during the Term of this Agreement all licenses required for the importation, operation, maintenance, promotion, marketing and distribution of the Localized Game in the Territory. (e)       Compliance with Laws.  Licensee shall comply with, and shall ensure that all of its Affiliates and third-party contractors comply with, all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder, including without limitation obtaining all approvals from Government Authorities required for the importation, operation, maintenance, promotion, marketing or distribution of the Localized Game in the Territory. 11.  Limitation of Liability 11.1   Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR’S CONTENT AND OTHER MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, LICENSOR SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATERIALS PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. 11.2   Limitation on Damages. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND AND NATURE WHATSOEVER, RELATING TO THE GAME, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST GOODWILL AND WHETHER SUCH ACTION IS BASED IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR STRICT LIABILITY, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE TOTAL LIABILITY FOR LICENSOR UNDER THIS AGREEMENT SHALL NOT EXCEED 10,000 US$. 12. Term and Termination 12.1   Term. The initial term of the Agreement shall commence on the Effective Date and shall expire on the       anniversary day of the Commercial Launch Date, subject to renewal pursuant to the terms of this Agreement, extension by mutual written agreement of the Parties hereto and earlier termination in accordance with the terms of this Agreement. The initial term and all extensions and renewals thereof shall collectively be referred to as the “Term”. 12.2   Renewal. The Term of this Agreement shall be renewed within two (2) months before the expiration of the initial term subject to a mutual written agreement of the Parties. 12.3   Termination. This Agreement and the license granted herein may be terminated, by written notice from the terminating Party to the other Party, upon the occurrence of any of the following events: (a)       Breach. At the option of the non-breaching Party, if the other Party is in material breach of this Agreement and either such material breach is incapable of being remedied or continues for a period of thirty (30) calendar days after written notice thereof. (b)       Insolvency Event. At the option of a Party, if the other Party or any of its creditors files for such other Party’s liquidation, bankruptcy, receivership, reorganization, or dissolution, or if such other Party is unable to pay any debts as they become due, has explicitly or implicitly suspended payment of any debts as they became due (except debts contested in good faith), or if the creditors of such other Party have taken over its management, or if the relevant financial institutions have suspended such other Party's clearing house privileges. (c)       Force Majeure. At the option of either Party if an event of Force Majeure occurs and continues for a period of ninety (90) calendar days after a written notice thereof is provided by the terminating Party. (d)       Weak Sales.  Provided that, after       months from the Commercial Launch Date, the monthly Royalty Fee is less than        for 6 consecutive months, Licensor has an option to stop maintenance support or terminate this Agreement upon providing no less than 15 days prior written notice. 12.4   Effect of Termination. Upon termination or expiration of this Agreement: (a)       Wind-Down of Operations. Subject to the transfer described in Section 12.4(b) below and to any orderly wind-down period as may be agreed in writing by the Parties, all licenses granted to Licensee hereunder shall terminate and Licensee shall: (i)     post on the Website a notice that describes the orderly wind-down process for the Localized Game; (ii)    cease using trademarks, the Localized Game Marks and other Intellectual Property Rights of Licensor; (iii)  cease the manufacture, distribution, sale or advertisement for sale of the Localized Client Software; (iv)  turn off the payment gateways and cease to permit End Users to allocate Game credits to their account for use in connection with the Localized Game; and (v)    shut down the Localized Server Software and cease operations of the Localized Game in due course. (b)       Transfer of Operations. Upon Licensor's request in reasonable anticipation of termination or expiration of this Agreement, and in accordance with Licensor’s instructions, Licensee shall: (i)     post on the Website a notice that describes the orderly transfer process for the Localized Game; (ii)    continue to operate the Localized Game, pending transition of the Online Service to Licensor or its designee; (iii)  transfer all Game Data to Licensor or its designee in accordance with Section 7.2; (iv)  take all actions necessary to vest exclusive ownership of the Traditional Chinese Translation Assets in Licensor in accordance with Section 3.4; (v)    use commercially reasonable efforts to assist with a smooth transition of the Online Service to Licensor or its designee so as to avoid any interruption in operation or End User experience.  (c)       Return of Materials. All Work Product, Game Content, Traditional Chinese Translation Assets, Client Software and Server Software and other components of the Game (Localized or not), replication materials, samples, literature and sales aids of every kind and any other items provided to Licensee by Licensor shall as soon as practicable be returned to Licensor or destroyed, at the option of Licensor. (d)       Outstanding Game Credits. Licensee shall be solely liable for any and all claims made by End Users in connection with the cessation of operation of the Localized Game. Licensor shall not be liable to refund to Licensee any payments made to Licensor by Licensee in respect of the Localized Game credits purchased or otherwise held by End Users that have not been consumed or converted and which are unable to be used in the Localized Game. (e)       Licensee Payment Obligation. Licensee shall within ten (10) Business Days after expiration or termination of this Agreement pay to Licensor all amounts due or payable or otherwise accruing to Licensor prior to such expiration or termination. 12.5   Survival. The provisions of Section 3 (Ownership and Intellectual Property Rights), Section 7 (Data), Section 8.7 (Late Payments), Section 8.8 (Records and Audit Rights), Section 9 (Confidentiality), Section 10 (Representations and Warranties), Section 11 (Limitation of Liability), Section 12 (Term and Termination) and Section 13 (General) shall remain survive even after the termination or expiration of this Agreement. 13. General 13.1   Notices. Except as otherwise expressly provided in this Agreement, all notices sent by either Party to the other Party pursuant to or in connection with this Agreement shall be in writing and shall be deemed to have been sufficiently given and received for the purposes of this Agreement if sent to the other Party at the address or facsimile number listed below for such Party, or to such other address or facsimile number of which either Party may so notify the other Party in writing (a) upon confirmation of receipt if delivered by hand; (b) upon confirmation of receipt if delivered by facsimile; or (c) five (5) Business Days after being sent by a reputable overnight courier. Licensor:   Address:           Attention:       Email:       Telephone: +86 (21)      Facsimile: +86 (21)          Licensee: [Licensee to provide below contact information] Address:           Attention:       Email:       Telephone:       Facsimile:       13.2   Assignment. Neither Party may assign or transfer its rights under this Agreement to a third party without the prior written consent of the other Party. Notwithstanding the forgoing, Licensor shall have right to transfer its rights under this Agreement to any of its Affiliate with a prior notice to Licensee. In the event that one Party is permitted to transfer its rights under this Agreement to a third party, this Agreement and each and every provision hereof shall be binding upon and shall inure to the benefit of the Parties and their permitted successors and assigns. 13.3   Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and merges, revokes and supersedes all prior and contemporaneous agreements, understandings, arrangements, documents and communications (whether written or oral) between the Parties and is intended as a final expression of their agreement. 13.4   Amendments and Waivers. This Agreement shall not be modified or amended except by written agreement signed by duly authorized representatives of the Parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of a Party, except by an instrument in writing signed by such Party; and no waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. The failure of either Party to enforce, or the delay by either Party in enforcing any of its rights under this Agreement shall not preclude either Party from commencing appropriate legal or equitable proceedings, within the time provided by the applicable law, to enforce any or all of its rights under this Agreement, and any prior failure to enforce, or delay in enforcement, shall not constitute a defense. 13.5   Force Majeure. Neither Party shall be liable for any delays nor failure to perform as a direct result of an “act of God” or other force majeure causes such as fire, storm, earthquake, wars, revolutions, riots, civil commotion, national emergency, and act or order of any court, government or governmental agency (“Force Majeure Event”). The Party claiming the Force Majeure Event shall promptly notify the other Party of the event and its expected duration and use its diligent efforts to mitigate the effects of the Force Majeure Event upon such Party’s performance of its obligation under this Agreement. 13.6   Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong. If any dispute shall arise in connection with this Agreement, either Party may initiate the dispute resolution procedures set forth in this Section by giving the other Party written notice of such dispute (“Dispute Notice”). Following issuance of a Dispute Notice, the Parties shall endeavor to resolve the dispute through negotiations conducted in good faith. All negotiations that take place in connection with the dispute shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings. If the dispute cannot be resolved through good faith negotiations within thirty (30) days from the date upon which the Dispute Notice was issued, either Party may submit the dispute to Hong Kong International Arbitration Center (“HKIAC”) in Hong Kong, China, in accordance with its procedural rules then in force and the Hong Kong Arbitration Ordinance. The language to be used in the arbitration proceedings shall be either Chinese or English and the place of arbitration shall be Hong Kong. Notwithstanding the foregoing provisions, the Parties shall have the right to bring judicial proceedings to obtain preliminary injunctive relief at any time during the arbitration proceedings, provided that such preliminary injunctive relief shall be subject to final arbitral decisions. 13.7   Severability. If any provision of this Agreement is found to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 13.8   Headings. The headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. 13.9   Relationship of Parties. Nothing contained in this Agreement shall in any way constitute any association, partnership or joint venture between the Parties hereto or be construed to evidence the intention of the Parties to constitute such. None of the Parties shall hold itself out contrary to the terms of this provision by advertising or otherwise. This Agreement constitutes an agreement solely between the Parties, and shall not be construed to be for the benefit of any third party and is not intended to and will not confer any rights, remedies, obligations, or liabilities, legal or equitable, on any person other than the Parties and their respective successors and permitted assigns, or otherwise constitute any person a third party beneficiary under or by reason of this Agreement.  13.10      Hiring of Employee.  The Parties hereto agree that during the Term of this Agreement, and for a period of twelve (12) months after expiration or earlier termination of this Agreement, no Party shall, except with the prior written consent of the other Party, offer employment to, or employ any person employed by any of the other Party at the time of the expiration or termination, or employed by any of the other Party within twelve (12) months preceding such expiration or termination. 13.11      Costs and Expenses. The Parties shall each bear their own costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement. 13.12      Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [Remainder of page intentionally left blank]  IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date first set forth above.       By:                                                         Name: Title:             By:                                                         Name: Title:   @À>É=ìë1n'û>I·¹gI·ð-I·€?€?€?ÀPDÔB€?::
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