EXHIBIT “A”

 

SOFTWARE LICENSE AND ROYALTY AGREEMENT

 

 

This Software License AND ROYALTY AGREEMENT ("Agreement"), dated as of August 24th, 2015 (the "Effective Date"), is by and between, Zhengzhou Xiangtian Information Technology Company Limited, a PRC Corporation with offices located at 81 Hao Lou, Zong Bu Qi Ye Ji Di Gao Xin Qu, Ying Chun Ji Zheng Zhou City, Henan Province PRC, China, ("Licensee"), and China Soar Information Technology, Inc., a Delaware corporation with offices located at 12 Harcourt Road, Bank of America Tower, Hong Kong, ("Licensor").

 

WHEREAS, Licensor has developed certain software described in Schedule A, Description of the Software (“Software”);

 

WHEREAS, Licensee wishes to license the Software (including the source code to the Software) from Licensor under the terms and conditions set forth below; and

 

WHEREAS, Licensor wishes to license the Software (including the source code to the Software) to Licensee under the terms and conditions set forth below.

 

NOW, THEREFORE, the Parties mutually agree as follows:

 

1.

GRANT OF LICENSE TO SOFTWARE

 

License Agreement. At the closing, the Licensor will grant to the Licensee a regional, exclusive, 3 year term, royalty bearing license under Licensor’s intellectual property rights to use, demonstrate, market, offer for sale, sell, license, and/or otherwise distribute the Software Platform to the following geographic areas:

 

(a) China

(b) Hong Kong

 

In addition, Licensee shall have a right of first negotiation (the "ROFN'') to expand the Territory upon notification from Licensor of its intention to negotiate a license for the Software Platform (or a portion of it) for a new Territory. Licensee must exercise such ROFN (if at all) by written notice to Licensor within 5 business days after receiving the notice contemplated by the previous sentence. In the event Licensee exercises the ROFN, the parties shall negotiate in good faith with respect to the terms of such expansion.

 

Licensor reserves the right to alter the Licensee’s rights granted under paragraph 1 for non-performance. Non-performance shall be evidenced by failure of Licensee to contractually deliver business opportunities in the geographic territories outlined above within 180 days of grant of this license. Licensor shall notify Licensee in writing of non-performance and Licensee shall have an additional 30 days to cure such non-performance. In the event that Licensee is unable to cure the non-performance, Licensor shall have the right to alter the geographic territory granted to Licensee under this agreement.

 

Unless notified in writing, License shall automatically renew annually after the third anniversary date.

 

	2.	OWNERSHIP OF SOFTWARE

 

	2.1.	Licensor’s title to the Software, whether in whole or in part, and all copies thereof, and all rights of Licensor therein, will remain in and be the sole and exclusive property of Licensor.

 

	2.2.	Any and all enhancements, changes or derivative works, whether made by or on behalf of Licensee, to the Software and all associated technical data and information in connection therewith will remain in and be property of Licensor.

 

 

3. PAYMENT, TAXES AND AUDITING

 

3.1. The fees and other charges applicable to the Software are set out in Exhibit A.

3.2. Within thirty (30) days of the end of each calendar quarter, Licensee will provide Licensor with a report of the revenue received by it during the previous quarter together with the payment of the 45% royalty thereon calculated in accordance with Exhibit A. Licensor shall provide Licensee with an invoice for its records immediately upon receipt of the quarterly payment.

3.3. With respect to their respective revenue share license fee payments, the Parties agree to pay all license fees, assessments, sales, use, personal property, excise, and other taxes, and any penalties or interest thereon ("Taxes"), now or in the future imposed by any appropriate governmental body on such Party with respect to the Software, or any portion thereof, and its possession, use, operation, or maintenance during the term of the license granted under this Agreement. If a Party is required by law to withhold income taxes on any payment owed to the other Party, then such Party may deduct such taxes from amounts owed and shall pay them to the appropriate tax authority, provided that the paying Party shall deliver to the other an official receipt for any taxes withheld and any other documents necessary to enable the appropriate Party to claim tax credit.

  

 

	4.	WARRANTIES

 

	4.1.	Licensor warrants that it is the owner of the Software and has the right to license the Software to Licensee.

 

	4.2.	Licensee hereby acknowledges that Licensor does not give any other warranty express or implied with respect to the Software.

 

	5.	TERM AND TERMINATION

 

	5.1.	This Agreement is effective on the Effective Date and unless earlier terminated as a result of any default under section 5.2 and will remain in full force and effect in perpetuity (the “Term”).

 

	5.2.	The following will be considered a default hereunder:
			(a)	A party fails to perform when due any of its obligations under this Agreement or breaches any term or condition of this Agreement and such failure or breach is not remedied within fifteen (15) days after receipt of written notice from the other party.

 

	(b)	A party becomes insolvent or makes an assignment for the benefit of creditors or ceases to do business or institutes or has instituted against it any proceedings for bankruptcy, reorganization, insolvency, or liquidation or other proceedings under any bankruptcy or other law for the relief of debtors and such proceedings are not terminated within fifteen (15) days after institution.

 

(c)

A breach by Licensee of clause 6.2.

Upon default by a Party, the other Party will have the right to terminate this Agreement and will be entitled to exercise any and all rights and remedies available to it at law or in equity.

 

 

6. SOURCE CODE

 

6.1 Licensor hereby grants to Licensee a royalty-free, annual license to use the binary and object

  build code of the software.

6.2 Licensee acknowledging the importance and value that the source code has and undertakes to the Licensor that it shall not dispose of (whether for value or not), license or distribute the source code or any part thereof but may with the prior written approval of Licensor enter into escrow agreements in respect of the same. Any breach of this clause shall constitute a material breach by Licensee.

 

  7. NOTICES

 

Except as otherwise provided for herein, all notices required or permitted to be given hereunder shall be in writing and shall be sent by registered mail (return receipt requested and postage prepaid), facsimile, overnight or two-day courier or delivered-in-person and shall be addressed as follows:

 

 

If to Licensee:

ZHENGZHOU XIANGTIAN INFORMATION TECHNOLOGY COMPANY LIMITED 81 Hao Lou, Zong Bu Qi Ye Ji Di Gao Xin Qu, Ying Chun Ji Zheng Zhou City, Henan Province PRC, China Facsimile: 852-25169546                  E-mail: proxymanagement@gmail.com                      Attention: Mu Chun Lin

 

If to Licensor:

CHINA SOAR INFORMATION TECHNOLOGY, INC. 12 Harcourt Road Bank of America Tower, Suite 1308 Central, Hong Kong Facsimile: 852-25169546 E-mail:proxymanagement@gmail.com Attention:  Mu Chun Lin

Either Party may change its address by a notice given to the other Party in the manner set forth above. Mailed notices given as herein provided shall be considered to have been given seven (7) days after the mailing thereof or facsimile notices shall be considered to have been given on the day sent, overnight or two-day courier sent notices shall be considered to have been given two (2) days after sending, and delivered in person notices shall be considered to have been given on the day of delivery.

 

8. GENERAL

 

8.1 Force Majeure. The obligations of the Parties will be temporarily suspended in the event of, or for any delay in performance that results from any circumstance beyond its reasonable control and without its fault or negligence, including without limitation an act of God, war, riot, strike, accident, fire, explosion, delay by carrier(s), or governmental orders. Any failure to perform in accordance with this Agreement by the affected Party as a result of any such interference or interruption will not be deemed in default. The Party which is unable to perform or who is delayed in performance on account of the foregoing will, in a timely manner; provide the other Party with written notification explaining the reason for non-performance or delayed performance, and will exert its best efforts to recommence performance as soon as possible. If the delay in the affected Party's performance of its obligations continues for more than 60 (sixty) days, the Party not affected by the circumstances may terminate the Agreement and no liability shall be incurred by either Party as a result of such termination.

 

8.2 Relationship of the Parties. Each Party shall act as, and shall be, an independent contractor in all aspects of this Agreement. Neither Party will act or have authority to act as an agent for the other for any purpose whatsoever. Nothing in this Agreement will be deemed to constitute or create a joint venture, partnership or other formal business entity or fiduciary relationship between Licensee and Licensor.

 

8.3 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the express written consent of the other Party.

 

8.4 Compliance with Laws. Both Parties agree to comply with all federal, state, and local statutes, regulations, and ordinances of the United States and any other jurisdiction applicable to the products and services delivered and each Party’s performance under this Agreement.

 

8.5 Governing Law. This Agreement will be governed by the laws of the State of Delaware without reference to conflict of laws provisions. The Parties consent to the exclusive jurisdiction of the federal or state courts in Delaware and expressly waive any objection or defense based on lack of jurisdiction or venue.

 

8.6 Severability. If any one or more of the provisions of this Agreement is held to be unenforceable under applicable law, (a) such unenforceability shall not affect any other provision of this Agreement; (b) this Agreement shall be construed as if said unenforceable provision had not been contained therein; and (c) the Parties shall negotiate in good faith to replace the unenforceable provision by a provision which has the effect nearest to that of the provision being replaced.

 

8.7 Expenses. Each Party shall be responsible for all expenses, including attorney’s fees and costs, incurred by it in relation to the making, review and negotiation of this Agreement, and to the fulfillment of its obligations as set forth in this Agreement.

 

8.8 Titles, Headings and Subheadings. The titles, headings and subheadings used throughout this Agreement are intended solely for convenience of reference and form no part of this Agreement.

 

8.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which, when so executed, shall be deemed an original, but all of which counterparts together shall constitute one and the same document.

 

8.10 Waiver. Failure or delay by either Party to exercise any right or power under this Agreement will not operate as a waiver of such right or power.

 

8.11 Entire Agreement and Amendments. This Agreement, including any and all Exhibits, as amended, constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings, both written and oral, regarding such subject matter. This Agreement may be amended only by a written document signed by authorized representatives of both Parties.

 

 

 

IN WITNESS WHEREOF, each Party has caused this Agreement to be executed and delivered as of the date first above written by its duly authorized representative.

 

 

 

Zhengzhou Xiangtian Information Technology                                                 China Soar Information Technology, Inc.,

Company Limited,                                                                                                    As Licensee As Licensor

 

 

By /s/      Mu Chun Lin                                                                                             By /s/ Mu Chun Lin

Mu Chun Lin                                                                                                          Mu Chun Lin

Title: President                                                                                                       Title: President

 

 

 

 

SCHEDULE A

 

DESCRIPTION OF SOFTWARE

 

MOYUN internet mobile application, (MIMA) cloud platform for the development and deployment of application and content-based mobile solutions. It simplifies the task of developing and deploying applications that work on a broad range of mobile handsets and different operating systems. It includes other related software used in the development of the mobile marketing services application set out below.

 

The elements that make up MIMA include but are not be limited to:

 

•Mobile website-for corporate website, including contents management, and design interface.

•Cloud setup and configuration

•Mobile client application (APP) development

•Content management and design interface

•Drag and Drop design interface

•Internet website-content management and design interface.

•Business Mobile integrated information system, (customized)-develops comprehensive mobile system with Attendance, ERP, CRM functions with highly flexible design features to meet majority SME’s information technology demands.

 

Examples of MIMA applications already available:

 

•Mobile marketing application

•Mobile marketing services

 

 

EXHIBIT A

 

ROYALTY CHARGES

 

(a) Licensee shall pay to Licensor royalties in a sum equal to 45% of the gross revenue of Licensee in respect of the Software licensed under this Agreement.

 

(b) Licensee shall pay to Licensor an annual renewal fee of $25,000 due on or before the anniversary date of the license.

 

(c) Licensee and Licensor shall agree to an annual support fee based on total annual revenue.

 

(d) The annual license fee and support fee for the initial year is waived.

 

EXHIBIT B

 

ROYALTY ENHANCEMENT

 

Licensee shall continually strive to develop and enhance Royalties from the Software by ensuring that is kept updated with a view to maximizing the commercial application and value thereof. To that end Licensee shall:

 

	(a)	Continually develop and enhance the Software to ensure its relevance to the markets it addresses.

 

	(b)	Correct any malfunction, defect, nonconformity or failure in the Software.

 

 

 

	(c)	Distribute the Software on commercial terms negotiated at arm’s length.

 (d) Ensure that the Licensor’s intellectual property rights are maintained, updated and safeguarded at all times and shall at its own cost take such actions as Licensor in its absolute discretion requires in connection therewith.

(e) Apply for and register at its own cost all patents and other appropriate intellectual property protection in respect of any enhancements, changes or derivative works in respect of the Software.

 

(f) Distribute the Software on commercial terms negotiated at arm’s length.

(g) Use its best endeavors to maximize the Royalties from its distribution of the Software.