This Agreement is made and entered into as of (“Effective Date”), by and between Hong Kong NetEase Interactive Entertainment
Limited (“NetEase”) a corporation duly organized and existing under the laws of Hong Kong,
having its principal place of business at Unit 802, of 8th Floor of Chuang's Tower, 30-32
Connaught Road Central, Hong Kong and (“Company”)
business license number: , a corporation duly
organized and existing under the
laws of
,having its
principal place of business at .
1.Development
1.1NetEase hereby retains Company to develop and/or deliver to NetEase the game art
assets ("Art Assets"), and Company hereby agrees to develop and/or deliver said Art
Assets on the terms and conditions set forth herein.
2.1Company shall develop and deliver the Art Assets in accordance with any instructions,
materials and other information (including without limitation, any Order Forms as attached
as Schedule 1) provided by NetEase. NetEase shall be
entitled to check and examine any and all contents of the Art Assets during the development
process and then give feedback accordingly.
2.2The Parties confirm that NetEase may send the development requirements and relevant Order
Forms via e-mail to .
2.3Company shall deliver the Art Assets to NetEase in accordance with NetEase's requirements
and Company represents warrants and undertakes that the quantity and quality of the Art
Assets delivered must meet standards and
requirements
set forth by NetEase.
2.4Company shall work in accordance with the general workflow which is confirmed by NetEase
before and during each Order Form in writing, that is: stage1 (Sketch); stage2 (Color
Matching); stage3 (Final). Company may not process to
the
next stage unless and until NetEase accepts Company’s performance for the prior stage in
writing. Under no circumstance shall NetEase be obligated to make any payment to Company
unless and until NetEase confirms and accepts all work
under any Order Form.
3.Payment
Both Parties acknowledge that the Order Form specified in Schedule 1 hereto has been
accepted in this Art Assets development project, and in consideration of the covenants,
conditions, agreements and stipulations set out herein,
NetEase
shall arrange the payment in accordance with the following rules:
3.1NetEase shall make payment according to the final total amount specified on an applicable
Statement stipulated in Schedule 2 within twenty-five (25) Business Days after such
Statement has been signed by Company. During the
effective
period of this Agreement, the Parties hereto confirm that the maximum total amount of the
Art Assets developed by Company shall be
(Say ), any
part of expenses that exceeds (Say ) shall
be borne by Company and NetEase
shall bear no obligation for making any payment. If the Parties still need to cooperate when
the total amount exceeds (Say ), a new
contract shall be mutually entered by the Parties in writing.
3.2The Parties hereto confirm that NetEase may authorize any of its Affiliate to pay the
Company, and NetEase shall not be liable for any delay in payment arising from any foreign
currency restrictions imposed by any governmental
entities and/ or any other reasons beyond NetEase’s reasonable control. Once obtaining the
approvals of the relevant government authorities to remit the payment, NetEase or its
Affiliate will make payment accordingly.
3.3Any and all payments hereunder shall be made in and by wire transfer to
the account designated by Company as indicated below or in other method that may be mutually
agreed upon. Company shall deliver relevant invoice to
NetEase
according to the requirements specified by NetEase before NetEase make payment, or else
NetEase shall be entitled to suspend payment accordingly.
*Bank Name:
*Beneficiary Name:
*Account No. :
*Swift Code:
Bank Routing Number:
3.4All payments hereunder include any and all taxes, fees and duties, including, without
limitation, withholding tax, value added tax and sales tax, and NetEase or its Affiliate
shall be entitled to deduct the amount of any such
taxes,
duties from payments made to the Company hereunder in accordance with the applicable
laws.
4.Proprietary
Rights
4.1NetEase, through this Agreement, commissions the Company to develop and/or deliver
the Art Assets, and the Art Assets shall be considered a commissioned work that is
exclusively owned by NetEase and NetEase shall be deemed the
author
under the applicable law (or a “work made for hire” or other designated type of work
under any other applicable similar laws of other jurisdictions that provide that all
rights in and to such work, in perpetuity and in any media
whether
now known or hereafter devised throughout the universe, is owned by the party that
commissions or otherwise directs another party to create such work, with such
commissioning or directing party deemed the author thereof.)
4.2To the extent any such Art Assets cannot be deemed a commissioned work or work made
for hire as set forth in Section 4.1, and in return for valuable and sufficient
consideration from NetEase, Company hereby irrevocably and
unconditionally grant, transfer, and assign to NetEase, upon creation of the Art Assets,
all rights, title, and interest to the Art Assets and any derivative works thereof in
any media, form, or for any purpose, and rental and
lending
rights of every kind and nature, including, but not by way of limitation, (a) the
copyright and the right to secure copyright thereon and all extensions and renewals of
copyright and (b) all rights therein of every kind now and
hereafter known or recognized, in perpetuity and throughout the universe. Company shall
execute at its sole cost and expense, with or without NetEase's prior request, all
documents and other instruments necessary or desirable to
effectuate such assignment.
4.3If Company has any rights, including without limitation any "droit moral" or “moral
rights” in the Art Assets that cannot be assigned under any applicable law, Company
hereby waives any and all such rights and agrees that it will
not
claim or seek to enforce such rights against NetEase anywhere in universe and further
agrees that NetEase will have the right to revise, condense, abridge, expand, adapt,
change, add to, subtract from, re-title, translate and
otherwise
modify the Art Assets without the consent of Company. In the event that any of the
above-referenced rights cannot be assigned or waived under any applicable law, Company
hereby grants NetEase, an exclusive, irrevocable, perpetual,
fully-paid, royalty-free and freely transferable license throughout the universe to use,
reproduce, distribute, create derivative works of, publicly perform, publicly display
and digitally transmit such Art Assets for any purpose in
any
and all media now known and, to the extent permitted under applicable law, any and all
media later devised.
4.4Company shall not exploit, permit or cause any other party to use or attempt to
exploit the Art Assets in a manner not expressly authorized by this Agreement.
5.1.1Company has the power and authority to enter into this Agreement;
5.1.2Company agrees to use diligence and good faith to develop the Art Assets;
5.1.3The Art Assets delivered by Company and any and all elements, data and information
thereof do not and will not infringe, misappropriate or violate any right (including,
without limitation, intellectual property right) of any
third
party and NetEase may perpetually use the Art Assets in any manner or in any media.
6.1Each Party hereby agree to indemnify, hold harmless and defend (if required by the
other Party) the other Party and its Affiliates from and against any and all claims,
suits, losses, damages and disbursements (including without
limitation attorney fees and court costs) arising out of any alleged or actual breach or
failure to comply with the terms and conditions hereof, without prejudice to any other
right, claim or remedy it may have hereunder, at law or
in
equity. The Parties acknowledge that monetary damages may not be a sufficient remedy for
some of such breach or failure, and each Party shall be entitled, without waiving any
other rights or remedies, to such injunctive or equitable
relief as may be deemed proper by a court or an arbitration tribunal of competent
jurisdiction.
6.2Notwithstanding any provision to the contrary, if Company breaches or fails to comply
with Article 2.3 and 2.4, NetEase shall be entitled to defer the payment accordingly
and/or terminate this Agreement upon notice, at its own
discretion.
6.3Notwithstanding any provision to the contrary, Company shall deliver the Art Assets
strictly in line with the time schedule which is confirmed by NetEase. Unless otherwise
confirmed by NetEase, if Company fails to deliver at the
due
delivery date, Company shall be liable to pay at a rate of 5‰ of the total amount of the
corresponding Order Form per day as penalty, and such penalty payment may offset any
NetEase’s due payment, at NetEase’s own discretion, as
well as
NetEase shall be entitled to defer the payment accordingly. If Company fails to deliver
for a period of twenty (20) days after the due delivery date, NetEase may terminate this
Order Form at its own discretion.
6.4Either Party may terminate this Agreement for cause upon written notice if the other
Party fails to cure any breach of this Agreement within ten (10) days after receiving
written notice of such breach.
6.5NetEase shall have the right to terminate this Agreement immediately if Company
violates or breaches any of the representations and warranties herein.
6.6No termination or expiration of this Agreement shall affect the Parties’ rights or
obligations that were incurred prior to the termination or expiration. For example,
after the expiration of this Agreement, upon any unfinished
Order
Form sent before the expiration and in accordance with the terms and conditions
hereunder, the Company still has to fulfill its obligations set forth in Article 2
unless instructed by NetEase in writing and NetEase shall perform its
payment obligations accordingly. However, upon termination hereof due to Company’s
default, NetEase shall have no obligation to pay any amount hereunder and the payments
made by NetEase to Company should be refunded in full to
NetEase
immediately upon the date of termination hereof.
7.1This Agreement shall be governed and construed under the laws and regulations of
China without giving effect to any conflict of laws principles. Any disputes arising
from or in connection with this Agreement shall be submitted to
China International Economic and Trade Arbitration Commission (CIETAC) for arbitration
which shall be conducted in accordance with the CIETAC's arbitration rules in effect at
the time of applying for arbitration. The arbitration
result
shall be final and binding on both Parties.
8.1No failure or delay by either Party in exercising any right, power, or remedy under
this Agreement will operate as a waiver of any such right, power or remedy. No waiver or
modification of any provision of this Agreement will be
effective unless in writing and signed by both Parties.
9.1Company may not assign this Agreement without the prior written consent of NetEase.
This Agreement shall inure to the benefit of and be binding upon the Parties and their
respective successors and assigns.
10.1 “Confidential Information” as used herein means information, whether provided or
learned in oral, written or other tangible form(s), and whether provided or learned
before or after the Effective Date, concerning NetEase’s
business,
property, technology , source code, object code, documentation, diagrams, flow charts,
computer codes, research, customers, pictures, photographs, illustrations, graphic
resources, game character, music, story line, animations,
backgrounds, text, sounds, video, data, the future business strategy, activities and
products to be published, distributed, released, sold, produced, manufactured, designed,
promoted or licensed by NetEase and any materials thereof
not
generally known to the public which is disclosed by NetEase or its Affiliates to Company
and which is either identified as Confidential at the time of disclosure or be
reasonably considered as Confidential Information under the
circumstances surrounding the disclosure.
10.2Company shall not in any way disclose, divulge, disseminate or reproduce any
Confidential Information to any third party without NetEase’s written consent, and shall
only use Confidential Information under NetEase’s written
instruction. Company shall treat all Confidential Information with the same degree of
care as it accords its own confidential information, but in no case less than reasonable
care.
10.3Any materials embodying such Confidential Information shall be returned and/or
destroyed upon the expiration or earlier termination of this Agreement, or sooner if so
requested by NetEase. Company shall, if required by NetEase,
certify that any materials embodying such Confidential Information mentioned above is
destructed in writing.
11.1Any notice to be given by either Party to the other may be sent by either email,
fax, post or courier to the address of the other Party indicated in Schedule 4, and if
sent by email shall be deemed to be received on the time it
was
sent or if sent by fax shall be deemed to be served on receipt of an error free
transmission report, or if sent by post or courier shall be deemed to be served third
Business Day following the date of posting.
12.1“Affiliate” means any corporation, firm, limited liability company, partnership or other
entity that directly or indirectly controls or is controlled by or under common control with
a Party, wherein “control” is defined as the
power, directly or indirectly, to direct or cause the direction of the management and
policies of such entity whether through the ownership of voting securities, by contract or
otherwise.
12.2“Business Day” means any day other than a Saturday, Sunday or a legal holiday in China.
For the avoidance of doubt, any reference to “day” shall be construed as being a reference
to a calendar day unless such “day” is qualified
by
the word “Business”.
12.3Unless otherwise specified in any Non-Disclosure Agreement, where applicable, concluded
by Company and NetEase (or its Affiliate), this Agreement constitutes the entire agreement
and understanding of the Parties relating to the
subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations
and understandings between the Parties, both oral and written.
12.4This Agreement shall become effective on the Effective Date and, unless terminated
earlier in accordance with this Agreement, shall remain in effect until . Upon termination hereof, NetEase shall not be liable to
make any payment to Company, unless otherwise agreed between the Parties in writing. And
upon the expiry of this Agreement, NetEase may notify the Company by e-mail or fax of 3
months extension of this framework Agreement. Within
the
extended period, NetEase may still purchase from the Company under the terms of this
Agreement, and both Parties shall cooperate based on the terms of this Agreement.
12.5NetEase and Company are each individually referred to as the “Party” and are sometimes
collectively referred to as the “Parties”. It is the intention and understanding of the
Parties that their relationship shall be at all times
that of an independent contractor. Nothing contained herein or done pursuant hereto shall
constitute the Company as an agent, representative or partner of NetEase for any purpose
whatsoever, and the Company shall have no right,
power,
or authority to assume, create, or incur, in writing or otherwise, any expense, liability,
or obligation in the name or on behalf of NetEase.
12.6Unless the context otherwise requires, the singular shall include the plural and vice
versa.
12.7The rights and obligations of NetEase and Company contained in Articles 4, 5,6,7,10,11
and 12 shall survive any expiration or termination of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.
“NetEase”
Hong Kong NetEase Interactive Entertainment Limited
By:
Printed Name:
Title:
By:
Printed Name:
Title:
Schedule 1 Order
Form
(Template, only for reference,no need to fill)
Schedule 2
Statement
(Template, only for reference, no need to fill)
Schedule 3
NetEase Code of Business Conduct and Ethics against Commercial
Bribery
Hong Kong NetEase Interactive Entertainment Limited(“NetEase”)is a subsidiary of NetEase
Inc. , a publicly traded company on NASDAQ. As a member of the NetEase Group, NetEase is
committed to the highest standards of business conduct
in
its relationships with its suppliers and other business partners. To ensure NetEase and all
of its affiliates conduct themselves in accordance with the highest standards of business
ethics and effectively prevent the occurrence of
unethical or non-compliant behavior in all business transactions, NetEase Group has
implemented a series of rules regarding supplier conduct and ethics.
I, (“Vendor”),
represents that I have fully read and understood the following Code of Business Conduct and
Ethics against Commercial Bribery and undertake and covenant that I shall strictly abide by
and comply
with
all of its requirements in my dealings with any member or representative of NetEase Group.
In particular, I understand that violation of any of the following rules will expose NetEase
Group to substantial business and legal risks,
irreparably damage NetEase Group’s public reputation and image, and severely interrupt
competitive environment and order in the relevant market.
NetEase Code of Business Conduct and Ethics against Commercial Bribery
●Vendor and all of its affiliates shall not offer, pay, give, loan, provide or promise
to pay, give, loan, or provide, directly or indirectly in the names of “reward”,
“commission”, “kickback”, “benefits” or otherwise, money,
advantages, or anything not of de minimis value, including negotiable securities,
shares, gifts, gift cards, membership, samples, tickets, entertainment, tour, vacation,
or services, whether tangible or intangible (all together
“Commercial Bribery”), to any employee, director, or representative of NetEase Group
that might influence, or be perceived as influencing any business decisions or affecting
the award of any contract with NetEase Group.
●In the event Vendor or any of its affiliates are aware of any unethical, non-compliant,
or illegal behaviors of any employee, representative, or directors of NetEase Group,
including solicitation, acceptance, or attempt to solicit
or
accept, whether directly or indirectly, any Commercial Bribery, Vendor shall report any
such non-compliance directly to NetEase Group. NetEase Group will maintain strict
confidence with regard to the reporting Vendor’s identity and
other related information.
I understand that any violation of this Policy can have severe consequences and where
warranted, I shall indemnify and hold NetEase Group harmless from all losses (including,
without limitation, reasonable attorney’s fees) arising
out
of or relating to any breach of violation by me or any of my affiliates, employees, or
representatives. I further acknowledge that NetEase Group shall have the right to:
●Immediately sever any business relationship, including termination of any agreement
with me, for cause;
●Refuse to make any further payment to me;
●Claim from me all amount paid to me by NetEase Group in relation with any present and
prior business dealings with NetEase Group; and/or
●Blacklist me from all future business dealings for up to three years.
This NetEase Code of Business Conduct and Ethics against Commercial Bribery takes effect
upon my acceptance below and shall survive indefinitely any termination of business
relationship with NetEase and/or any of its affiliates.