English to Chinese: Cepri Customer contract General field: Law/Patents Detailed field: Law: Contract(s)
Source text - English 8 FINANCIAL CONSIDERATION
In consideration of the rights granted in this Agreement and of Licensor’s full compliance to its obligations, Licensee will pay to Licensor the License remuneration.
License Remuneration consists of the License Fee (as defined in 8.1), Royalty Fee (as defined in 8.2) and One Time Incentive Payment (as defined in 8.3).
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 USD4,000,000 (Four Million US Dollars) (the “License Fee”), upon the terms set forth below:
(a) USD $1,600,000 ( one million and Six hundred thousand US Dollars) of the License Fee shall be due and payable within thirty (30) calendar days following the later of
(i) the Effective Date,
(ii) the receipt of the corresponding invoice and
(iii) Licensee has duly completed the Agreement Registrations with the Government Authorities which are required in order to make payment to Licensor according to PRC laws.
(b) USD 1,200,000 (One million and two hundred thousand US Dollars) of the License Fee shall be due and payable within thirty (30) calendar days of acceptance of the Closed Beta Version of the Localized Game by Licensee and receiving the corresponding invoice.
(c) USD 1,200,000 (One million and two hundred thousand US Dollars) of the License Fee shall be due and payable within thirty (30) calendar days of the Open Beta Test Date and receiving the corresponding invoice.
8.2 Royalty Fees. In further consideration of the rights granted to Licensee pursuant to this Agreement, Licensee shall pay to Licensor on a monthly basis a royalty fee equal to 24% of Net Revenue (the “Royalty Fee”) with the exception that if the Average Peak-Time Concurrent Users in one calendar month is over 300,000 (Three Hundred Thousand), the Royalty Payment for such month will be changed from Twenty four percent (24%) to Twenty five percent (25%) of Net Revenue.
The payment of Royalty Fees shall be due and payable within thirty (30) Business Days after receipt of the Licensor’s invoice in according with Section
8.3 One-time Incentive Payment.
In addition to the License Fees and the Royalty Fees, Licensee shall pay Licensor one-time incentive of US D1,000,000 (One million US Dollars) if the End Users who logged onto the Localized Game concurrently unprecedentedly exceeds 300,000 (Three hundred thousand) during the Term (“One-time Incentive Payment").
In that case, the Parties shall sign the Certificate (in a form specified in Exhibit F to this Agreement) according to the accounting rules of Russian Federation for the amount specified above.
8.4 Royalty Statements. Licensee shall provide Licensor with a statement substantially in the form of Exhibit C attached hereto (a “Royalty Statement”) within ten (10) Business Days of the end of each calendar month during the Term of this Agreement. Licensor shall then provide Licensee with an invoice for the amount of the Royalty Fees set forth in the relevant Royalty Statement.
The Parties shall sign the monthly Certificate (in a form specified in Exhibit F to this Agreement) according to the accounting rules of Russian Federation.
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. Licensor should send an official letter to Licensee regarding such amount(s).
8.5 Taxes. In the event withholding taxes are levied by tax authorities of the Territory on Licensor’s income in respect of License Remuneration, Licensee shall deduct such taxes from License Remuneration 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. Each Party agrees to comply with the other Party’s reasonable requests for certification, information, documentation, or other reporting requirement necessary to obtain reduced rates under applicable income tax treaties. Each Party agrees to notify the other Party of any such potential taxes and to reasonably cooperate with the other Party in its efforts to obtain such reduced tax rates or eliminate such taxes. Except as otherwise expressly set forth herein, each Party shall be solely responsible for all taxes payable with respect to such Party’s own income under this Agreement.
8.5.1 According to Detailed Rule for the Implementation of the Provisional Regulation of the People's Republic of China on Business Tax and Provisional Regulation of the People's Republic of China on Business Tax both of which came into effects on Jan. 1, 2009, the Licensee withhold and pays to the tax authorities People Republic of China a 5.55% (five point fifty five per cent) withholding tax as business tax on Licensor’s income in respect of License Remuneration.
8.5.2 According to p. 2, art. 11 of the AGREEMENT BETWEEN THE GOVERNMENT OF THE RUSSIAN FEDERATION AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME as of May 27th, 1994, the Licensee withholds and pays to the state budget of People Republic of China a 10% (ten per cent) of enterprise income tax over the Licensor’s income in respect of License Remuneration after the business tax.
8.5.3. Licensor shall provide Licensee with the document confirming the fact of registration of Licensor as a fiscal resident of Russian Federation.
8.5.4 For avoidance of confusion, the total withholding tax shall be calculated as per the following formula, withholding tax == License Remuneration *(5.55% [Business Tax] (1-5.55%)10%[Enterprise Income Tax]). The parties expressly understand and agree that the withholding tax may be changed if otherwise instructed by the tax authorities of PRC .
All payments to be made according to the Agreement between Parties shall be in US dollars and remitted by wire transfer to the account specified in Section 15.
Royalties shall be translated into US dollars according to exchange rate set by the Central Bank of Russian Federation on the last calendar date of the corresponding month for which the payment is made and the amount of Royalties calculated in this way shall be stated in the Сertificate (in a form specified in Exhibit F to this Agreement) according to the accounting rules of Russian Federation signed by two parties.
The Central Bank of Russia official site in English is http://www.cbr.ru/eng/
8.7 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.
8.8 Late Payments. Time is of the essence with respect to all payments under this Agreement. Interest at the rate of ten percent (10%) per year (but in no event more than the maximum amount permitted by applicable law), shall accrue on any amount due hereunder from the date such amount is due until the date of payment. Licensor should send the official letter to Licensee in written form regarding such amount.
8.9. Records and Audit Rights Licensee shall maintain complete and accurate books and records in sufficient detail to reflect its operations under this Agreement and to enable the Royalties accrued and payable under this Agreement to be determined, and this during the term of this Agreement and for two (2) years after the expiration or termination of Agreement.
8.10. During the Term of this Agreement and for one (1) year thereafter, Licensor shall be entitled to appoint, at its own expense (except as provided in Section 7.17 below) and not more often than once a calendar year, an internationally recognized accounting firm (hereinafter as “Representatives”), reasonably acceptable to both parties, to check and audit the Game operating accounting insofar as they are relevant for the purpose of verifying the amounts of royalties payable to Licensor under this Agreement.
8.10.1. Such inspection shall take place at Licensee's premises on Business Days and during business hours, subject to thirty (30) days’ prior notice and shall be limited to accounting statement rendered during the Term.
8.11. Licensor or Representatives of Licensor shall protect the confidentiality of Licensee's confidential information and abide by Licensee's reasonable security regulations while on Licensee's premises.
8.12. Licensee shall promptly reimburse Licensor for the entire costs of such review and inspection including, but not limited to professional fees, travelling and accommodation expenses if (and only if) the Representatives, after such review, reveal a material shortfall of more than ten percent (10%) of royalties and more than USD $100,000 (One Hundred Thousand US Dollar) that should be paid by Licensee, and Licensee shall reimburse the gap of royalty and corresponding interest according to Subsection 8.8 of the Agreement, within thirty (30) days after notice of the corresponding invoice.
8.12.1. In the absence of a complaint concerning the accounts within twelve (12) months after delivery thereof, the accounts shall be regarded as having been definitively accepted by Licensor.
8.13. The billing server management shall be solely carried out by the Licensee and Licensor shall have full access to the billing server data to compute the revenue in the head-count of customers online within the Territory. For the avoidance of any doubt, Licensee shall provide Licensor with an access to a web based application to monitor the sales of the Localized Game in real time.
8.14. Licensee shall not be required to advance Licensor’s Royalties Fee which have not yet been received (i.e., actually received by Licensee.).
8.15. Licensee warrants to Licensor that it will not, without Licensor’s prior written approval, commercially exploit the Game in the Territory in ways other than selling Game Points. With Licensor’s approval, if Licensee obtains any other revenue from or in conjunction with its operation or licensing of the Game or Localized Game other than as reflected in Gross Revenues as defined herein, such revenue will be promptly disclosed to Licensor and the Parties will discuss and agree upon an equitable amount to be paid to Licensor from such other revenue which will be memorialized in a written amendment to this Agreement.
9.1 Confidential Information. Information which is not publicly known and designated in writing as confidential, information which shall be treated confidential in light of its nature even without labeling “Confidential” in writing or if disclosed orally designated as confidential in a subsequent written notice provided within thirty (30) days of such disclosure, by the disclosing Party shall be treated as confidential information (“Confidential Information”) of such Party. 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 Sections 8.9-8.12.1 (Records and Audit Rights), shall be deemed Confidential Information of both Parties, whether or not any such information is marked as confidential.
Specifically, the Content of this Agreement as well as the negotiations between the Parties shall be deemed Confidential Information.
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 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 or to comply with the rules of the U.S. Securities Exchange Commission (or similar U.S. agency) or any stock exchange upon which the disclosing Party’s securities are traded.