Exclusive Ragnarok License and Distribution Agreement - Gravity Corp., Soft-World International Corp. and Value Central Corp.
EXCLUSIVE RAGNAROK
LICENSE AND DISTRIBUTION AGREEMENT
THIS LICENSE AND DISTRIBUTION AGREEMENT (this "Agreement"), is made and entered
into on this 12th day of MAY, 2003, by and between GRAVITY CORPORATION, a
corporation duly organised and existing under the laws of the Republic of Korea
("Korea") and having its offices at 6th Fl. Shingu Bldg., 620-2, Shinsa-Dong,
Kangnam-Ku, Seoul, 135-894, Korea ("Licensor"), SOFT-WORLD INTERNATIONAL
CORPORATION, a corporation duly organised and existing under the laws of Taiwan,
R.O.C and having its offices at 13th Fl., No. 1-16, Kuo-Chen Road, Chien-Chen
District, Kaoshiung 806, Taiwan ("Soft-world"), and VALUE CENTRAL CORPORATION, a
corporation duly organised and existing under the laws of the Independent State
of Western Samoa and having its offices at P.O. Box 217, Apia, Samoa
("Licensee").
RECITALS:
WHEREAS, Licensor has developed and possesses all rights in computer programs of
online game "Ragnarok" ("Game") and also possesses valuable know-how and
technical information on the installation, design, service and use of the Game;
WHEREAS, Soft-world is engaged in the business of sale and distribution of game
products in Taiwan, and Licensee is Soft-world's subsidiary company with 100 %
investment by Soft-world;
WHEREAS, Soft-world and Licensee desire to distribute and market the Game in the
Territory (as defined in Article 1) through the Service Company (as defined in
Article 1) which will be established after the execution of this Agreement and
which will be engaged in the sale, distribution, promotion and marketing of the
Game to wholesalers and will provide an accurate figure of the Service-Sales
Amount (as defined in Article 1) calculated with its billing system in the
Territory; and
WHEREAS, Licensor desires to grant a license to the Service Company to perform
such activities through Licensee under the full guarantee of its performance by
Licensee and Soft-world.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration, the parties hereto agree as
follows:
ARTICLE 1.
DEFINITIONS
The terms defined in this Article shall have the meaning ascribed to them herein
whenever they are used in this Agreement, unless otherwise clearly indicated by
the context.
1.1 "Confidential Information" shall mean all materials, know-how, software
or other
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information including, but not limited to, proprietary information and
materials regarding a Party's technology, products, business
information or objectives, including the software for the Game and
Technical Information under this Agreement, which is designated as
confidential in writing by the providing Party or which is the type
that is customarily considered to be confidential information by
persons engaged in similar activities.
1.2 "End Users" shall mean the users of the Game through a network game
service system established and operated by Licensee with individually
assigned ID Numbers for each End User.
1.3 "English Version" shall mean the Game provided in the English language.
1.4 "Game" shall have the meaning stipulated in the recitals above,
including any modified or advanced version of the Game distributed by
Licensor for error correcting, updating or debugging purpose, under the
same title. Any subtitled version, series or sequel to the Game which
may be developed or distributed by Licensor after the execution of this
Agreement shall be clearly excluded from the scope of this Agreement.
1.5 "ID Number" shall mean an identification number assigned to each End
User, with which such End User can access and use the network game
service system established and operated by Licensee.
1.6 "Intellectual Property" shall mean all patents, designs, utility
models, copyrights, know-how, trade secrets, trademarks, service mark,
trade dress and any other intellectual property rights in or related to
the Game or Technical Information.
1.7 "Malay Version" shall mean the Game provided in the Malay language.
1.8 "Parties" and "Party" shall mean Licensor, Soft-World and Licensee,
collectively and individually, respectively.
1.9 "Servers" shall mean the servers established, installed and operated by
Licensee within the Territory only for the service of Game to End Users
in the Territory.
1.10 "Service Company" shall mean the company which will be established by
Soft-World and/or Licensee after the execution of this Agreement, 100%
of whose issued and outstanding shares will be owned or controlled by
Soft-World or Licensee and which will be engaged in the sale,
distribution, promotion and marketing of the Game to wholesalers and
will provide an accurate figure of the Service-Sales Amount calculated
through its billing system in the Territory.
1.11 "Service-Sales Amount" shall mean the total service-sales amount that
has been paid by End Users for the Game, including the amounts paid by
way of prepaid card, and calculated by the billing system with the
deduction of the Wholesaler-Discounts granted under this Agreement.
1.12 "Technical Information" shall mean the software, know-how, data, test
result, layouts, artwork, processes, scripts, concepts and other
technical information on or in relation to the Game and the
installation, operation, maintenance, service and use thereof.
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1.13 "Territory" shall mean Singapore and Malaysia.
1.14 "Wholesaler-Discounts" shall mean the discounts which are allowed by
Licensee to wholesalers in the Game market; provided, however, that (i)
if the payment by End Users is made by way of off-line prepaid card
through a conventional sales channel, including but not limited to
computer game rooms, computer stores, convenient stores,
Wholesaler-Discounts granted to any wholesaler shall not exceed thirty
percent (30%) of the amount of such off-line prepaid card, (ii) if the
payment by End Users is made by way of on-line prepaid card through an
online sales channel, including but not limited to internet home
shopping malls, Wholesaler-Discounts granted to any wholesaler shall
not exceed fifteen percent (15%) of the amount of such on-line prepaid
card, and (iii) if the payment by End Users is made through neither a
conventional sales channel nor an online sales channel, the rate of
Wholesaler-Discounts shall be determined by mutual agreement between
Licensor and Licensee.
ARTICLE 2.
GRANT OF LICENSE
2.1 Licensor hereby grants to Licensee, subject to the terms and conditions
contained in this Agreement, the exclusive, royalty-bearing and
non-transferable license (the "License") to service, use, promote,
distribute and market the Game to End Users and to use the Technical
Information for such purpose within the Territory, and to grant a
sublicense only to the Service Company.
2.2 The service, use, promotion, distribution and marketing of the Game by
Licensee under this Agreement shall be made only in the English
language and the Malay Version both Malaysia and Singapore. Any
service, use, promotion, distribution and marketing of the Game outside
the Territory and any use of the Technical Information for any purpose
other than performance under this Agreement are strictly prohibited.
2.3 Licensee shall provide services of the Game only by the IBM PC on-line
method (excluding mobile access) using the Servers. Without the prior
written approval of Licensor, Licensee shall not manufacture,
distribute or sell the Game in any other form or manner, including but
not limited to a compact disk ("CD").
2.4 The Game shall be serviced, promoted, distributed and marketed under
the titles, trademark, character names and other names of the Game
("Title") as originally created and used by Licensor. Provided,
however, that, if it is required to change any of such Titles due to
any special lingual or social circumstance of the Territory, the
Parties shall decide and use new Title ("New Title") for the Game. All
of the rights in or to the Title and New Title shall be exclusively
owned by Licensor and Licensee shall not use any such Title or New
Title in a manner that falls outside the scope of this Agreement
without the prior written approval of Licensor.
2.5 All of the rights in or to the Game, except as granted under this
Agreement, including but not limited to the rights to the character
business of the Game, shall remain exclusively with Licensor.
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ARTICLE 3
SERVICE COMPANY
3.1 Soft-world and/or Licensee shall establish the Service Company within
60 to 90 days after the date of execution of this Agreement. Promptly
upon establishment of the Service Company, Licensee shall provide
Licensor with the relevant corporate information on the Service
Company, including the shareholding details thereof, and such other
information thereon as may be reasonably requested by Licensor.
3.2 Within [thirty (30)] days after the date of establishment of the
Service Company, Licensee shall enter into a fully valid and binding
sublicense agreement ("Sublicense Agreement") with the Service Company,
a copy of which shall be provided to Licensor promptly upon execution
and which shall contain all of the terms and conditions of this
Agreement mutatis mutandis. Under the Sublicense Agreement, Licensor
shall be designated as a third party beneficiary and shall be entitled
to exercise the rights of Licensee provided therein directly against
the Service Company.
3.3 After the execution of the Sublicense Agreement, all service, use,
promotion, distribution and marketing of the Game to End Users required
under this Agreement shall be performed only by the Service Company.
3.4 In addition to the obligations of the Service Company provided in the
Sublicense Agreement, all of Licensee's obligations provided in this
Agreement shall apply to the Service Company, and Licensee shall cause
the Service Company to perform all of Licensee's obligations under this
Agreement. In this regard, the performance by the Service Company of
Licensee's obligations under this Agreement shall be deemed to be the
performance thereof by Licensee itself. Further, the term "Licensee"
used throughout the text of this Agreement in relation to Licensee's
obligations hereunder shall be deemed to include the Service Company.
3.5 During the term of this Agreement, Soft-world shall, together with
Licensee, maintain the ownership of at least fifty one percent (51%) of
the total issued and outstanding shares and the control over the
management of the Service Company. In the event Soft-world loses such
ownership or control, the Service Company shall lose all its rights in
relation to the Game, and in this regard, the Sublicense Agreement
shall expressly provide that it shall be automatically terminated in
such event.
ARTICLE 4
DELIVERY OF GAME
4.1 Subject to the terms and conditions of this Agreement, Licensor shall
provide Licensee with its full assistance and cooperation, including
preparation of the English
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and Malay Versions and providing technical assistance, in order to
enable a launch of the beta service and commercial service of the Game
in the Territory.
4.2 Licensor and Licensee agree to launch the beta service of the Game in
Singapore and Malaysia within sixty (60) days to ninety (90) days,
respectively, from the date of execution of this Agreement, and to
launch the commercial service of the Game in Singapore and Malaysia
within forty five (45) days to sixty (60) days, respectively, from the
date of launch of the beta service of the Game. The Parties agree to
cooperate with each other and exert their best efforts to launch the
services of the Game in accordance with the above schedule in this
Section 4.2. The above target dates for launching the services of the
Game may be changed by mutual agreement between the Parties.
4.3 Once Licensee receives the English Version and/or Malay Version and
technical documents on the Game (collectively "Delivery Materials")
from Licensor, Licensee shall perform its review and test promptly and
inform Licensor of any defect within thirty (60) days after receipt
thereof. Licensee's failure to inform within the designated period
shall be regarded as acceptance by Licensee, and any revision or
modification of any of the Delivery Materials which may be made by
Licensor thereafter upon the request by Licensee shall be at Licensee's
sole expense.
4.4 The Game shall be serviced in the Territory only in the manners
permitted by Licensor under this Agreement. Licensee shall be strictly
prohibited from any modification, amendment or revision of any part of
the Game including the title of the Game and the name of the characters
in the Game, without the prior written approval of Licensor.
4.5 Any and all translation required for localization of the game shall be
done by Licensee.
ARTICLE 5
TECHNICAL ASSISTANCE
5.1 During the term of this Agreement, Licensor shall provide Licensee for
free of charge with technical assistance including software
installation and set-up, maintenance support, patch updates in
connection with the Game and the localization of the Game into English
and/or Malay language, provided that any and all expenses actually
incurred by any engineers dispatched by Licensor to perform the above
technical assistance in this Section 5.1, including, without
limitation, business class airfare, lodging, food and other general
living expenses incurred during their stay at Licensee's premises,
shall be borne by Licensee.
5.2 Licensor shall, upon the request of Licensee, dispatch its engineers to
Licensee for the installation of Servers and training of Licensee's
personnel. The total period for such technical assistance excluding the
travelling time shall not exceed [10] man days (based on 8 hours of
work per engineer per day), and any further assistance through dispatch
of Licensor's engineers shall be determined by the mutual agreement of
the
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Parties. After the initial dispatch by Licensor of its engineers for
[10] man-day period, the salaries of Licensor's engineers for the
dispatched period shall be paid by Licensee. All the expenses incurred
by the engineers of Licensor for business class airfare, lodging and
food and other general living expenses during their stay for the period
of technical assistance shall be borne by Licensee.
5.3 During the term of this Agreement, Licensor shall receive Licensee's
personnel in its office in Korea for training with respect to the
installation and service of the Game and the installation, maintenance
and operation of the Servers. The number of the trainees from Licensee
shall not exceed [3] persons at one time and the total period of
training shall not exceed [7] man days (based on 8 hours of training
per trainee per day), unless otherwise agreed in writing by Licensor.
All of the expenses for travel, lodging, food and other general living
expenses incurred by such dispatched personnel of Licensee shall be
borne by Licensee.
5.4 Any further assistance may be rendered by Licensor upon mutual
agreement of the Parties.
5.5 Each Party shall be fully responsible and fully indemnify the other
Party for the behaviour of and activities performed by its employees
and personnel during their stay at the other Party's facilities.
ARTICLE 6
PAYMENT
6.1 In consideration of the License and technical assistance granted under
this Agreement, Licensee shall pay to Licensor as follows:
(a) INITIAL PAYMENT
Licensee shall pay to Licensor a sum of Ninety Thousand United States
Dollars (USD 90,000) ("Initial Payment") within seven (7) days after
the launch of the commercial service of the Game in the Territory,
whether that be in Singapore or Malaysia ("Commercial Service Date").
None of the Initial Payment shall be refunded to or recouped by
Licensee under any circumstances for any reason.
(b) ROYALTY AND REPORT
In addition to the Initial Payment, Licensee shall pay to Licensor as
continuing royalties thirty percent (30%) of the Service-Sales Amount
paid by End Users ("Royalty"). Subject to Section 6.1(c) below, the
Royalty shall be paid on a monthly basis within twenty (20) days after
the end of the applicable month. Licensee shall also provide Licensor
with a report ("Royalty Report") on a monthly basis within twenty (20)
days after the end of the applicable month. Each Royalty Report shall
contain detailed information on the calculation of Service-Sales Amount
for the applicable month.
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6.2 Any and all payment under this Agreement by Licensee to Licensor shall
be made in United States Dollar (USD) and by wire transfer to the
account designated by Licensor or in such other method as may be
mutually agreed between the Parties.
6.3 For all payments to be made in United States Dollar under this
Agreement, the applicable foreign exchange rate shall be the basic
exchange rate published by the Malaysia bank on the due date for the
relevant payment. Provided, however, that, in the event of any delay in
payment, the most favourable exchange rate to Licensor among the rates
during the period from the due date for the relevant payment to the
date of actual payment shall apply.
6.4 In the event any payment is delayed by Licensee under this Agreement, a
default interest at a rate of [18] % per annum shall apply. For the
avoidance of doubt, Licensor's entitlement to such default interest
pursuant to this Section 6.4 shall not affect any of the other rights
of Licensor under this Agreement.
6.5 Licensee shall pay the Royalties in strict compliance with the due date
set forth in Section 6.1(b) above and may not withhold, delay, reduce
or offset the amount or payment of Royalties payable under this
Agreement under any circumstances. For the avoidance of doubt, Licensee
may not so withhold, delay, reduce or offset the amount or payment of
Royalties for reasons of errors and/or bugs in or associated with the
Game and/or the billing system. Such withholding, delay, reduction or
offset by Licensee shall be deemed a material breach of this Agreement
for the purposes of Article 14.
6.6 Any and all taxes including the sales tax, value added tax, income tax
on any payment to Licensor under this Agreement shall be borne by
Licensee, provided, however, if any government in the Territory
requires Licensee to withhold the income tax on the payment to
Licensor, Licensee is allowed to withhold as such tax up to ten percent
(10%) of the respective payment amount. In the event that any amount is
withheld for the tax payment under this Section 6.5, Licensee shall
promptly inform Licensor of such payment and provide Licensor with a
certification issued by the relevant tax authorities with respect to
the relevant payment. Any withholding tax in excess of ten percent
(10%) of the respective payment amount shall be borne by Licensee, and
Licensee shall not deduct such withheld amount from the actual payment
amount.
ARTICLE 7
REPORT & AUDIT
7.1 Licensee shall provide Licensor with all the information on the
development of its business in relation to the Game. Without limiting
the generality of the foregoing, Licensee shall inform Licensor
promptly in the event of its launch of the beta service or the
commercial service of the Game.
7.2 Licensee shall provide Licensor with a monthly report (the "Monthly
Report") within twenty (20) days after the end of the applicable month
in writing on its business activities in relation to the Game,
including, but not limited to, the list of End-Users, the fees charged
by Licensee, sales revenue for the pertinent month, advertising
activities and the expenses therefore, complaints received from End
Users and market trends in the Territory.
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7.3 Licensee shall keep all of its records, contractual and accounting
documents and company documents in relation to its business and
activities under this Agreement in its offices, during the term of this
Agreement and for two (2) years after the expiration or termination of
this Agreement.
7.4 During the term of this Agreement and two (2) years after the
expiration or termination thereof, Licensor may by itself or through an
accountant designated by Licensor investigate and audit all of the
company documents of Licensee with respect to its Game business. For
this purpose, Licensor may request Licensee to produce the relevant
documents, and may visit Licensee's office and make copies of
Licensee's documents. Licensee shall provide all assistance and
co-operation required by Licensor for such investigation and audit. All
expenses incurred for such investigation and audit shall be borne by
Licensor unless such investigation and audit reveals underpayment by
greater than 5% of the Royalty amount, in which case Licensee shall
bear all expenses for such investigation and audit and shall also
promptly pay to Licensor the unpaid amount together with [18] % default
interest thereon.
ARTICLE 8
ADVERTISING & PROMOTION
8.1 Licensee shall exert its best efforts to advertise, promote and perform
marketing activities on the Game in the Territory.
8.2 For the advertising of the Game in the Territory, Licensee agrees to
spend no less than Two Hundred Thousand United States Dollars (USD
200,000) for each twelve-month period after the commencement of the
term of this Agreement. Licensee shall provide Licensor with detailed
information on Licensee's advertising activities every month in the
Monthly Reports as stipulated in Section 7.2. In addition, Licensee
shall provide Licensor with a separate advertisement report on June 30
and December 31 of each year covering the preceding 6 months' period.
8.3 Licensor will provide Licensee with samples of the marketing and
promotional materials for the Game which have been or will be produced
and used by Licensor during the term of this Agreement. For the
marketing and advertising materials for use in the Territory, Licensee
shall provide Licensor with samples thereof no later than seven (7)
days after lunching them and will obtain Licensor's written approval
after or prior to Licensee's actual or use of such advertising
materials. Licensor's failure to respond within seven (7) days after
receipt of such samples of advertising material shall be deemed as
approval of such advertising materials.
8.4 All of the copyright on the marketing and advertising materials
produced or used by Licensee on the Game ("Advertising Materials")
shall be exclusively owned by Licensor, and Licensee shall not use any
Advertising Materials in a manner that falls outside the scope of this
Agreement. For the purposes of this Section 8.4, Licensee hereby
assigns any and all of its rights on the Advertising Materials to
Licensor.
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8.5 Licensee may provide End Users with free points not exceeding one
hundred fifty (150) points per End User for the purpose of promotion of
the Game and with free accounts not exceeding eight hundred (800)
accounts per End User for the purposes of operation and advertisement
of the Game. The detailed information on the free points and accounts
provided by Licensee to End Users shall be provided to Licensor on a
monthly basis in the Monthly Report as stipulated in Section 7.2.
ARTICLE 9
OTHER OBLIGATION OF LICENSEE
9.1 Licensee shall exert its best efforts to supply, distribute and sell
the Game in the Territory.
9.2 Licensee shall be solely responsible for service, use, promotion,
distribution and marketing of the Game in the Territory, and Licensor
shall not be responsible for any of such activities unless stipulated
otherwise in this Agreement.
9.3 Licensee shall provide full and comprehensive technical support to End
Users to assist in their use of the Game, including but not limited to
Licensee's maintaining 24-hour technical contact window, on-line
customer services, sufficient outbound bandwidth and circuits for
operating business under this Agreement, and game servers required for
on-line game operation.
9.4 Licensee shall provide its best effort and procure appropriate legal
and administrative measures against any and all activities by third
parties infringing the Game or any of the Intellectual Property of
Licensor on or in relation to the Game, including without limitation
to, manufacture or sales of counterfeiting CDs, manuals, workbooks or
other products.
9.5 Licensee shall abide by all laws and regulations of the Territory in
its service, use, promotion, distribution and marketing of the Game in
the Territory.
9.6 Licensee shall provide a prior written notice to Licensor in the event
Licensee intends to change its marketing strategies, including budget,
advertising, marketing, promotional materials, product packaging and
etc., price policies relating to the Game, and other important
policies.
9.7 Licensee shall indemnify and hold harmless Licensor and its officers
and employees from any kind of losses, costs, expenses or liabilities,
including reasonable attorneys' fees resulting from any claim by a
third party on or in relation to Licensee's service, use, promotion,
distribution and marketing of the Game, provided that Licensor (a)
promptly notifies Licensee of such claim; (b) allows Licensee to
control the defence of such claim and/or any related settlement
negotiations; and (c) provides any reasonable assistance requested by
Licensee in connection with such claim.
9.8 Upon Licensor's request, Licensee shall provide Licensor with an
exclusive and separate office space and office supplies, including but
not limited to desks and computers for use by up to four (4) persons,
in the Service Company's main office and all branch offices thereof for
Licensor's activities, including but not limited to co-marketing and
auditing. Access to such office space shall be limited only to
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persons designated by Licensor. All expenses incurred by Licensor's
employees dispatched to such offices of the Service Company in
connection with transportation, postage, telecommunications, lodging,
food and other general living expenses, etc. and the salaries for such
employees during their stay at such offices shall be borne and paid by
Licensor.
ARTICLE 10
INTELLECTUAL PROPERTY
10.1 Technical Information shall be exclusively owned by Licensor, and this
Agreement shall not grant Licensee or permit Licensee to exercise any
right or license on the Intellectual Property except for the License
granted under this Agreement. Licensee shall not obtain or try to
obtain any registered industrial property or copyright on any of the
Intellectual Property of Licensor regardless of the territory and
exploitation area.
10.2 Licensor hereby represents and warrants that Licensor has a legal and
valid right to grant the rights and licenses under this Agreement to
Licensee and that the Game and Technical Information do not violate or
infringe any patent, copyright and trademark of any third party in
Korea.
10.3 Licensor agrees to indemnify and hold harmless Licensee from any kind
of losses, costs, expenses or liabilities, including reasonable
attorneys' fees and costs of settlement, resulting from any claim by a
third party upon Licensor's breach of Section 10.2; provided that
Licensee (a) promptly notifies Licensor of such claim; (b) allows
Licensor to control the defence of such claim and/or any related
settlement negotiations; and (c) provides any reasonable assistance
requested by Licensor in connection with such claim.
ARTICLE 11
LIMITATION OF LIABILITY
11.1 EXCEPT FOR THE WARRANTY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTIONS 10.2 AND 10.3 ABOVE, LICENSOR MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, CONCERNING THE GAME INCLUDING BUT NOT LIMITED TO ITS
MERCHANTABILITY, AND THE GAME IS LICENSED HEREUNDER "AS IS".
11.2 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER BASED
ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
11.3 The aggregate liability of Licensor under or relating to this Agreement
whether in contract, tort (including without limitation negligence) or
otherwise, shall be limited to an amount equal to the total amount of
the payments made by Licensee during the preceding period of [6]
months.
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ARTICLE 12
CONFIDENTIALITY
12.1 All Confidential Information disclosed by either Party under this
Agreement shall be maintained in confidence by the receiving Party and
shall not be used for any purpose other than explicitly granted under
this Agreement. Each Party agrees that it shall provide Confidential
Information received from the other Party only to its employees,
consultants and advisors who need to know for the performance of this
Agreement. The receiving Party shall be responsible for any breach of
this Article by its employees, consultants and advisors.
12.2 The confidential obligation shall not apply, in the event that it can
be shown by competent documents that the Confidential Information;
(a) becomes published or generally known to the public before or
after the execution of this Agreement without any breach of
this Agreement by any Party;
(b) was known by the receiving Party prior to the date of
disclosure to the receiving Party;
(c) Either before or after the date of disclosure is lawfully
disclosed to the receiving Party by a third party who has no
confidential obligation for such information;
(d) is independently developed by or for the receiving Party
without reference to or reliance upon the Confidential
Information; or
(e) is required to be disclosed by the receiving Party in
accordance with the applicable laws and orders from the
government or court; provided that, in this case, the
receiving Party shall provide prior written notice of such
disclosure to the providing Party and takes reasonable and
lawful actions to avoid and/or minimize the degree of such
disclosure.
ARTICLE 13
TERM
13.1 This Agreement shall become effective on the execution date of this
Agreement and, unless terminated earlier in accordance with this
Agreement, shall remain in effect for a period of two (2) years from
the Commercial Service Date.
13.2 No later than four (4) months prior to the expiration of this
Agreement, Licensor shall give Licensee the first right of negotiation
for a period of thirty (30) days for re-execution of a license
agreement for an additional term of one (1) year ("Renewed Term") for
the Game. For the extension one(1) year with initial two(2) year terms
of this agreement, Licensee shall be given continuous execution of the
license agreement if there have been no critical defects during the
initial two years term. If no agreement in writing is made between the
Parties for renewal or re-execution of a license agreement during such
period, this Agreement shall expire without any further extension or
renewal.
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ARTICLE 14
TERMINATION
14.1 This Agreement may be terminated upon the mutual agreement of the
Parties.
14.2 Each Party shall have the right to immediately terminate this
Agreement:
(a) upon written notice to the other Party in the event of the
other Party's material breach of this Agreement and such
breach shall continue for a period of [thirty (30)] days after
the breaching Party's receipt of written notice setting forth
the nature of the breach or its failure to perform and the
manner in which it may be remedied;
(b) if the other Party or its creditors or any other eligible
party files for its liquidation, bankruptcy, reorganization,
composition or dissolution, or if the other Party is unable to
pay any kind of debts as they become due, or the creditors of
the other Party have taken over its management; or
(c) in accordance with Section 15.2 below.
(d) In the event of Licensee's intended material breach of Billing
system and such breach shall be clarified and proved truth by
Parties after Licensee's receipt of the Licensor's written
notice setting forth the nature of the breach, and Licensee
shall promptly pay to Licensor the unpaid amount together with
18% default interest thereon.
14.3 Notwithstanding Section 14.2 above, Licensor may immediately terminate
this Agreement upon a written notice to Licensee:
(a) if the Royalty for any given month as set forth in Section
6.1(b) above is not paid within fifteen (15) days after
receiving written notice from Licensor for late payment;
(b) if the Service-Sales Amounts are not correctly calculated
and/or reported as set forth in Section 7.5;
(c) if the beta service of the Game is not launched in the
Territory within the periods set forth in Section 4.1 unless
such failure has been caused by Licensor;
(d) if the commercial service of the Game is not launched in the
Territory within the periods set forth in Section 4.1 unless
such failure has been caused by Licensor;
(e) if the service of the Game in the Territory is stopped,
suspended, discontinued or disrupted for more than [ten (15)]
days in total during the term of this Agreement due to causes
attributable to Licensee;
(f) if Soft-World loses its ownership or control stipulated in
Section 3.5.
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14.4 Upon the effective date of such termination, all rights granted to
Licensee hereunder shall immediately cease and shall revert to
Licensor, and Licensee shall immediately cease servicing of the Game
and return to Licensor any and all softwares, Technical Documents and
other materials or information provided by Licensor to Licensee under
this Agreement.
14.5 No termination of this Agreement shall affect the Parties' rights or
obligations that were incurred prior to the termination. The expiration
or termination of this Agreement shall not affect the effectiveness of
Articles 7, 10, 11, 12, 14.4 and 16 which shall survive the expiration
or termination of this Agreement.
ARTICLE 15
FORCE MAJEURE
15.1 Notwithstanding anything in this Agreement to the contrary, no default,
delay or failure to perform on the part of either Party shall be
considered a breach of this Agreement if such default, delay or failure
to perform is shown to be due entirely to causes beyond the reasonable
control of the Party charged with such default, delay or failure,
including, without limitation, causes such as strikes, lockouts or
other labor disputes, riots, civil disturbances, actions or inactions
of governmental authorities or suppliers, epidemics, war, embargoes,
severe weather, fire, earthquake, acts of God or the public enemy.
15.2 If the default, delay or failure to perform as set forth above in
Section 15.1 exceeds [thirty (30)] days from the initial occurrence, a
Party who is not affected from such force majeure event shall have the
right to terminate this Agreement with a written notice to the other
Party.
ARTICLE 16
GUARANTEE
16.1 In consideration of the License granted by Licensor to Licensee under
this Agreement, Soft-world hereby irrevocably and unconditionally
guarantees the due performance by Licensee of the terms of this
Agreement and Soft-world shall be jointly and severally responsible to
Licensor for the performance of all of the obligations of Licensee and
any other performance, non-performance and other activity performed by
Licensee under this Agreement.
16.2 Any notice given in accordance with this Agreement from Licensor to
Licensee shall be deemed to be given and delivered to Soft-world and
the Service Company.
16.3 Licensee and Soft-world irrevocably and unconditionally guarantee the
due performance and observance by the Service Company of the terms of
this Agreement and the Sublicense Agreement, and Licensee and
Soft-world shall be jointly and severally responsible to Licensor for
the performance or failure of performance by the Service Company of the
terms of this Agreement and the Sublicense Agreement, and any other
activities performed by the Service Company in relation to this
Agreement or the Sublicense Agreement.
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ARTICLE 17
GENERAL PROVISIONS
17.1 Neither Party's rights, duties nor responsibilities under this
Agreement may be assigned, delegated or otherwise transferred in any
manner, without prior written consent of the other Party.
17.2 It is understood and agreed by the Parties that this Agreement does not
create a fiduciary relationship between them, that Licensee shall be an
independent contractor, and that nothing in this Agreement is intended
to constitute either Party an agent, legal representative, subsidiary,
joint venture, employee or servant of the other for any purpose
whatsoever.
17.3 If any kind of notices, consents, approvals, or waivers are to be given
hereunder, such notices, consents, approvals or waivers shall be in
writing, shall be properly addressed to the Party to whom such notice,
consent, approval or waiver is directed, and shall be either hand
delivered to such Party or sent by certified mail, return receipt
requested, or sent by Fed, Ex, DHL or comparable international courier
service, or by telephone, facsimile or electronic mail (in either case
with written confirmation in any of the other accepted forms of notice)
to the following addresses or such addresses as may be furnished by the
respective Parties from time to time:
If to Licensor.
Attention: Hyunduck Na
6th Fl. Shingu Bldg., 620-2, Shinsa-Dong, Kangnam-Ku, Seoul,
135-894, Korea
Fax: +82-2-3442-7097
If to Licensee
Attention: Mr. Yu-Shun Hung
13th Fl., No. 1-16, Kuo-Chien Road, Chien-Chen District,
Kaohsiung 806, Taiwan
Fax: +886 7 8151020
17.4 No course of dealing or delay by a Party in exercising any right,
power, or remedy under this Agreement shall operate as a waiver of any
such right, power or remedy except as expressly manifested in writing
by the Party waiving such right, power or remedy, nor shall the waiver
by a Party of any breach by the other Party of any covenant, agreement
or provision contained in this Agreement be construed as a waiver of
the covenant, agreement or provision itself or any subsequent breach by
the other Party of that or any other covenant, agreement or provision
contained in this Agreement.
17.5 This Agreement, including all exhibits, addenda and schedules
referenced herein and attached hereto, constitutes the entire agreement
between the Parties hereto pertaining to the subject matters hereto and
supersedes all negotiations, preliminary agreements, and all prior and
contemporaneous discussions and understandings of the Parties in
connection with the subject matters hereof.
17.6 This Agreement shall be written in English and all disputes on the
meaning of this
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Agreement shall be resolved in accordance with English version of this
Agreement.
17.7 This Agreement may be amended only upon the execution of a written
agreement between Licensor and Licensee which makes specific reference
to this Agreement.
17.8 This Agreement shall be governed by and construed in accordance with
the laws of Korea.
17.9 Any controversy or claim arising out of or in relation to this
Agreement shall be finally settled by arbitration in Korea. The
arbitration shall be conducted before three arbitrators in accordance
with the Rules of Arbitration and Conciliation of the International
Chamber of Commerce then in effect. The Parties shall be bound by the
award rendered by the arbitrators and judgement thereon may be entered
in any court of competent jurisdiction. Any award rendered by the
arbitrators shall be final, and the Parties shall not have any right of
appeal.
17.10 If any section, subsection or other provision of this Agreement or the
application of such section, subsection or provision, is held invalid,
then the remainder of the Agreement, and the application of such
section, subsection or provision to persons or circumstances other than
those with respect to which it is held invalid shall not be affected
thereby.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
first above-written.
GRAVITY CORPORATION,
By: ___________________________
Name: Jung-Ryool Kim
Title: Chairman
Date :
VALUE CENTRAL CORPORATION,
By:____________________________
Name: Yu-Shu Hung
Title: CEO
Date :
SOFT-WORLD INTERNATIONAL CORPORATION.
By: ___________________________
Name: Mr. Chin - Po Wang
Title: President
Date :
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