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Whereas, Party A desires to use Party B’s Software in the foregoing MP products developed anddesigned by third parties and sold under Party A’s owned brand “CECT” (the “Licensed Products”)and is willing to pay Party B software licensing royalties (“Royalties”).NOW, THEREFORE, after friendly consultations and pursuant to the Contract Law of the PRC and otherrelevant PRC laws and regulations, Party A and Party B hereby reach agreements as follows:ARTICLE 1 DEFINITIONSIn order to avoid any doubt, unless otherwise defined in other places herein, the following termsshall have the meanings ascribed thereto below:1.1 “Party B’s Software” means the application software developed and owned by Party B which isused to operate such functions on the MPs as [receipt and delivery of mobile multimedia messagesand WAP browsing], in particular, mMMS, mWapBrowser and WapStack 1.2; and if Party A intends toobtain Party B’s license with respect to any software owned by or licensed to Party B other thanParty B’s Software, the Parties shall execute separate supplemental licensing provisions.1.2 “Technical Documentation” means all the know-hows, experiences, drawings, requirementspecifications, design specifications, encoding rule specifications, source codes, testingdirections, and other technical materials and information in which the copyrights are owned byParty B or which are related to Party B’s Software, that are owned by Party B, related to Party B’sSoftware or are of reasonable commercial interests to Party B.1.3 “IMEI No.” means the International Mobile Equipment Identity (“IMEI”) Number issued by aneutral issuing agency authorized by the GSM Alliance (“the Notify Body”) based on the TestingReport of the FTA Certification Lab, which is used to identify an MP and shall be unique throughoutthe world.1.4 “Delivery Quantity” means the sum of the quantity of the Licensed Products supplied to PartyA’s agents by Party A (including both the products sold to end users and the products not yet soldto end users) and the quantity of the Licensed Products directly sold to end users by Party A orits affiliates.
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1.5 “Improvement” means any enhancement of, or modification or amendment to any part of Party B’sSoftware at any version, or any work performed to increase the scope of use, functions or any otherfeatures of Party B’s Software.1.6 “Derivative Work” means any technology or work product relating to Party B’s Software thatdeveloped or obtained by the Parties in connection with the performance of this Agreement,including without limitation to:(i) with respect to any content covered under any copyright interests or granted copyright, anytranslation (including the translation into any other computer language), modification, correction,addition, extension, upgrade, improvement, compilation or abridgement thereof, or any work in anyother form that has been remanufactured or converted or adapted from any existing work product;(ii) with respect to any content covered under any patent application or granted patent, anyimprovement thereto; and(iii) with respect to any content under the protection as a trade secret, any new content developedfrom existing trade secret, including any new content that is entitled to the protection ascopyright, patent and/or trade secret.1.7 “Confidential Information” means any and all the proprietary or confidential information, data,Technical Documentation, trade secrets or know-hows that may be provided by either Party to theother in written, oral, physical or digital electronic form in connection with the performance ofthis Agreement, including but not limited to, software, inventions, processes, formulae,technologies, designs, patterns, database, computer programs, IP developments, business plans,information about market situation, marketing, financial budgets and business, businesscooperation, commercial transactions, research materials, products and product plans, services,customer information and customer lists. The Parties hereby acknowledge and confirm that theforegoing confidential information is owned by the disclosing Party. I is not publicly availableand can bring economic interests to the disclosing Party and is of value. The disclosing Party hastaken appropriate actions to protect such information and data.1.8 “Intellectual Property Rights” means all rights in any intellectual property in anyjurisdiction in the world, including patent, trademark, copyright, proprietary technique, tradesecret, service mark, trade name,
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design, good will and know-how, including the right to apply for the same, whether recordable,recorded, registered or granted.1.9 “Affiliate” means, with respect to either Party, a person which is controlled by, or controls,or is under common control with such Party, whether directly or indirectly, in each case, throughthe ownership of 50% or more of the equity interest. For purposes of this definition, a “person”refers to an individual, corporation, partnership, joint venture, enterprise, association, jointventure company, joint stock company, limited liability company or legal person.ARTICLE 2 GRANT OF LICENSE2.1 Subject to the terms and conditions in this Agreement, Party B hereby grants Party A anonexclusive, non-solely occupied and non-transferable license to use Party B’s Software inLicensed Products within the term of this Agreement in accordance with this Agreement (the“License”). Party B shall have the full right to grant any third party a license to use Party B’sSoftware and may use Party B’s Software for its own benefit at any time out of its own need, ineach case, with no need to obtain the consent from Party A or give notice to Party A.2.2 Without written authorization or consent from Party B, Party A shall not license, grant alicense to, or permit any third party, to use or have any right in Party B’s Software.2.3 If requested by Party A, Party B may provide Party A with such services as technical supportand training, which shall be subject to further consultations(including the scope of services andfees) and written agreement between the Parties.2.4 Afterthe effectiveness of this Agreement, if Party B or an Affiliate thereof has improved or upgraded Party B’s Software or developed a new version thereof, theauthorized use of such Improvement, upgrade or new version and the payment for such use shall besubject to further consultations and written agreement between the Parties.ARTICLE 3 INTELLECTUAL PROPERTY RIGHTS3.1 TheParties hereby acknowledge that Party B shall have the good and exclusive ownership of the Intellectual Property Rights in, Party B’s Software at whichever versionand any Improvement thereto, any work product developed, generated or obtained by either Party inconnection with the performance of this Agreement within the term of this Agreement,
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irrespective of the form or media in which it is expressed or saved, including but not limited tothe Derivative Work thereof, and the Technical Documentation and theConfidential Information related thereto, and have the right to use such Intellectual Property Rights all over the world,including the PRC, the right to apply to the relevant authorities for the recording or registrationof or a grant of a right with respect to such Intellectual Property Rights in any otherjurisdiction, and the right to make any amendment or Improvement in any form to the foregoingsoftware, Improvement, work product, Technical Information and Confidential Information of Party B.Party A hereby further acknowledge that in no case shall Party A or any third party have theownership of or Intellectual Property Rights in any of the foregoing Party B’s Software,Improvement, Derivative Work or relevant Technical Documentation or Confidential Information,including such right as to apply for, record, register or license the same.3.2 PartyA shall endeavor to take necessary actions to protect Party B’sSoftware from infringement and promptly notify in writing Party B ofany infringement upon Party B’s Software or any challenge from any person to Party A’s use right with respect to Party B’s Software as contemplated hereunder or anyclaim of ownership on Party B’s Software upon its discovery ofthe same, and cooperate with Party B in the handling of such infringement, challenge or claim.3.3 Party B undertakes that it has the legal title to and Intellectual Property Rights in Party B’sSoftware and it has the right to provide Party A with relevant Party B’s Software and the TechnicalDocumentation thereof and grant a use right to Party A with respect to Party B’s Software ascontemplated hereunder. Party B’s Software and the Technical Documentation delivered to Party Ahereunder shall not constitute any infringement upon or impediment to any rights or interests ofany third party. Party B shall be responsible for defending against or handling any liability,dispute, action or claim resulting from any dispute with any third party due to Party B’s deliveryof any software or Technical Documentation and shall indemnify Party A against any direct economicloss caused thereby, including the damages determined in the final judgment, decree or award oragreed by Party B in a written agreement. In order to be indemnified by Party B as above, Party A shall promptly notify Party B of and assist Party Bto handle the relevant liability, dispute, action or claim. However, if such liability, dispute,action or claim is caused by the improper use of or unauthorized amendment to Party B’s Software byeither Party A or any third party, Party B shall not be responsible for handling the same orindemnifying Party A against the same.
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3.4 Each Party agrees and confirms that any document, data and relevant equipment furnished ordelivered to it by the other Party may only be used to effectuate the foregoing purposes and thefurnishing Party shall retain the ownership of and the Intellectual Property Rights in thetechnical secrets, Technical Documentation and any other information contained in such document anddata. Nothing in this Agreement may be interpreted as the assignment to the other Party from thefurnishing Party of its Intellectual Property Rights in such document or data, but only apermission to the other Party to use such document, data and relevant equipment.3.5 This Article shall survive the expiration or termination of this Agreement for whatever reason.ARTICLE 4 CONFIDENTIALITY OBLIGATIONS4.1 The Parties hereby agree and warrant that within and after the term of this Agreement, unlessotherwise required for the performance of this Agreement or otherwise provided herein, each Partyshall not, and shall cause its employees and service providers not to, disclose to any third partyany provision or content of this Agreement or any content of any agreement, document,correspondence or notice between the Parties in connection with the execution of this Agreement, orpermit the disclosure of any such provision or content in any leaflets, literatures, orprofessional prints or any other media, vehicle or occasion.4.2 The Parties hereby agree and warrant that any Confidential Information and TechnicalDocumentation provided or disclosed by either Party to the other shall be used only for thepurposes and uses contemplated hereunder. The Party receiving any data or information (in such casethe “Receiving Party”) from the other Party may not use any Confidential Information or TechnicalDocumentation for any unfair competition.4.3 The Parties hereby agree and warrant that within and after the term of this Agreement theReceiving Party shall take all necessary and reasonable actions to keep the confidentiality of andproperly maintain, all the Confidential Information and Technical Documentation furnished ordisclosed to it by the other Party (the “Disclosing Party”), and without the prior written consentof the Disclosing Party, unless otherwise required for the performance of this Agreement, shall notfor any purpose, disclose or divulge to any person irrelevant to this Agreement or any third party, anyConfidential Information, Technical Documentation or any technical secret or data involved herein,or use the same for any purpose other than those provided herein.
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4.4Notwithstanding the foregoing, the Parties hereby confirm that if the Receiving Party is required by any law, any competent court, arbitral body or any othergovernmental authority that has jurisdiction over it to disclose the above-mentioned ConfidentialInformation or Technical Documentation, the Receiving Party may make such disclosure; providedhowever that, such disclosure shall be limited to the scope and subject matter so required andsubject to prior written notice to the Disclosing Party.4.5 The above restrictions shall not apply to the following data:     (a) any data or information that is disclosed to the Receiving Party by any third partywithout breach of any confidentiality obligations hereunder;     (b) any information or data that is or becomes publicly known prior to being disclosed to theReceiving Party not as a result of any action or inaction of the Receiving Party;     (c) any information or data that is or becomes known to the Receiving Party prior to theprovision of the same by the Disclosing Party and can be located in any document or record of theReceiving Party dated earlier than the disclosure;     (d) any data or information that is independently developed by theReceiving Party without reference to any data or information provided by the Disclosing Party asdemonstrated by any document or any other strong evidence of the Receiving Party; and     (e) any data or information that is published upon the written approval of the DisclosingParty.4.6 All the Confidential Information provided to one Party by the other hereunder shall beexpressly marked as “Confidential” in writing and any Confidential Information that is disclosedin oral or visual formfor the first time shall be marked as “Confidential” in writing and notified to the other Partyof such fact within thirty (30) days as of such first disclosure.4.7 The Parties hereby agree and warrant that any Technical Documentationfurnished by one Party to the other shall be the exclusive property of the furnishing Party, and,upon the termination of this Agreement for whatever reason, the Receiving Party shall (i)immediately return to the
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Disclosing Party or any entity or individual designated thereby or (ii)at the request of the Disclosing Party, completely destroy any and all the materials, documents anddisks related to any Confidential Information or Technical Documentation furnished or disclosed bythe Disclosing Party and any other vehicle on which any of the foregoing is saved, that are in thepossession or control of the Receiving Party (the “Information”); and that unless otherwiseprovided herein, any content of the Information shall be trade secret and the Receiving Party maynot reproduce any Information on any vehicle or retain any reproduction of any Information; andfurther, upon the performance of the foregoing actions, the Receiving Party shall deliver to theDisclosing Party a written certificate that all the relevant Information has been returned ordestroyed and none of the Receiving Party or any of its current or former investors, directors,officers, employees, agents, consultants or other representatives, or any of its supervisingauthorities (if any) or affiliated companies or agencies or units holds any such trade secret orany other Information containing any such trade secret.4.8 The Receiving Party shall, upon the expiration of this Agreement or at any time upon therequest of the Disclosing Party, return all or any portion of the Confidential Information of theDisclosing Party and may not retain any vehicle related to any Confidential Information without theconsent of the Disclosing Party.4.9 TheParties hereby recognize and acknowledge that any Confidential Information and Technical Document owned by either Party are unique and confidential data andinformation and any disclosure by either Party to any third party of any such information or datawithout the consent from the Disclosing Party will seriously damage the business or other interestsof the Party owning such data and information. In case of a breach or threatened breach of anyconfidentiality obligations herein by either Party, the other Party shall have the right to takeany legalactions or any other lawful measures to protect its own legal interests, including but not limitedto, preventing by any lawful means, or requesting the breaching Party to cease, such breach, earlyterminating this Agreement or requesting the breaching Party to indemnify it against all the directeconomic loss caused by such breach.4.10 Obligations set forth in this Article shall survive the expiration or termination of thisAgreement for whatever reason.ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTY A
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5.1 Party A is a company duly established and validly existing under the laws of the PRC and is ingood standing and has obtained all the valid authorizations for its execution and performance ofthis Agreement. The execution and performance of this Agreement by Party A will not conflict withParty A’s bylaws or documents of similar nature, applicable laws, or any contract/agreement orcommitment between Party A and any third party, or any other document or provision binding uponParty A.5.2 At theexecution of this Agreement, there is no any action or administrative proceeding pending before any governmental or judicial authority, against Party A orinvolving Party A’s assets or business that may materially endanger or have an adverse effect onParty A’s ability to perform this Agreement.5.3 Party A hereby agrees that after one week as of the formal launch of one model of MPs usingParty B’s Software, including such product as Party A’s brand name MPs, OEM MPs or ODM MPs, itshall notify Party B in writing of the actual model of such MPs and at the same time Party B shallprovide Party A with use instructions. After confirmation by Party A of such use instructions,Party A shall lend Party B one MP equipped with complete and stable software and hardware functionsfor Party B to provide follow-up technical support services for Party B’s Software installed insuch model of MPs.5.4 Party A hereby agrees that Party B may publicize in any manner the fact that Party A hasadopted Party B’s Software in the Licensed Products.ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTY B6.1 Party B is a company duly established and validly existing under the laws of the PRC and is ingood standing and has obtained all the valid authorizations for its execution and performance ofthis Agreement. The execution and performance of this Agreement by Party B will not conflict withParty B’s bylaws or documents of similar nature, applicable laws, or any contract/agreement orcommitment between Party B and any third party, or any other document or provision binding uponParty B.6.2 At the execution of this Agreement, there is not any action oradministrative proceeding pending before any governmental or judicial authority, against Party B orinvolving Party B’s assets or business that may materially endanger or have an adverse effect onParty B’s ability to perform this Agreement.
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6.3 Party A hereby expressly acknowledges and agrees that (i) Party B does not warrant that PartyB’s Software hereunder [or services (including technical support or training)] is [are] fit for anyparticular purpose not disclosed by Party A, (ii) Party B does not warrant that Party B’s Softwareis free from any defect or all the defects in Party B’s Software will be cured immediately, or(iii) to the extent permitted by applicable laws and regulations, any representations or warrantiesnot made herein by Party B, whether expressly or impliedly, are hereby disclaimed by Party B.ARTICLE 7 NOTICES7.1 The Parties hereby confirm that any document or information in connection with this Agreementas well as any communication between the Parties shall be delivered to the Party to which the sameis addressed by personal delivery, express mail service, registered mail, fax or email at theaddress set forth below:Party A:CEC TELECOM CO., LTD.Floor 10, China Electronics and Information Building