Transitional-Service-Agreement过渡服务协议模板-中英文.doc

TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (the "Services Agreement") is made as of this [●] day of [●], 2014 by and between (i) Cloudary Corporation, a company duly incorporated and validly existing under the laws of the Cayman Islands, whose registered office is at the offices of Codan Trust Company (Cayman) Limited, Cricket Square, Hutchins Drive, PO Box 2681, Grand Cayman, KY1-1111, Cayman Islands (the "Cloudary"), and (ii) Shanda Games Limited, a company limited by shares duly incorporated and validly existing under the laws of the Cayman Islands, whose registered office is at [●] ("Shanda"). Each of Cloudary and Shanda is sometimes referred to herein as a "Party" and collectively, as the "Parties."
W I T N E S S E T H:
WHEREAS, Shanda agrees to provide to Cloudary and Group Companies, as applicable, certain operational, technical and other support services on the terms set forth in this Services Agreement and the Schedules hereto;
NOW, THEREFORE, the Parties hereby agree as follows:
ARTICLE 1

DEFINITIONS
1.1 Definitions
. Unless the context otherwise requires, the following terms, and their singular or plural, used in this Services Agreement shall have the meanings set forth below:
(a) "Affiliate" means any other person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person, including without limitation any investment funds managed by such person or such other person that, directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such person.
(b) "Confidential Information" shall have the meaning set forth in Section 7.1 of this Services Agreement.
(c) "Group Company" means each of Cloudary, its Offshore Entities (as listed on Schedule B) and the PRC Entities (as listed in Schedule C), together with their respective Subsidiaries;
(d) "Services" shall have the meaning set forth in Section 2.1 of this Services Agreement.
(e) "Shanda Entities" means, collectively, Shanda and its Affiliates that are providing services to Cloudary and Group Companies, which is listed out in Schedule A hereto.
(f) "Subsidiary" shall have the same meaning in this Services Agreement as their respective definitions in the Companies Ordinance (Chapter 622 of the Laws of Hong Kong).
(g) "Term" shall have the meaning set forth in Section 4.1.
Other terms are used as defined elsewhere herein.
ARTICLE 2

SERVICES PROVIDED
2.1 Services
. Pursuant to the terms of this Services Agreement, Shanda agrees to provide, or cause the Shanda Entities to provide, to Cloudary or each such Group Company as designated by Cloudary, the services described in Schedule A to this Services Agreement (the "Services").

ARTICLE 3

COMPENSATION
3.1 Compensation for Services
. The Parties hereby agree that Shanda shall provide the Services free of charge for the duration of the Term.
ARTICLE 4

TERM AND TERMINATION
4.1 Term
. Except as expressly provided otherwise in this Services Agreement, or with respect to specific services as indicated on the Schedule A hereto, the term of this Services Agreement shall be for a period commencing on [-], 2014 and ending on December 31, 2015 (the "Term").
4.2 Termination of Agreement
. This Services Agreement shall terminate on the last day of the Term unless otherwise agreed by the Parties.
ARTICLE 5

CERTAIN COVENANTS
5.1 Reasonable Care
. Shanda shall, and shall procure each Shanda Entity to, perform the Services indicated on the Schedule A hereto that it is required to provide to Cloudary or Group Companies under this Services Agreement with reasonable skill and care. Shanda shall, and shall procure each Shanda Entity to, take commercially reasonable measures to protect the Group Companies' data that is processed by such Shanda Entity from destruction, deletion or unauthorized change and allow its recovery in events of Force Majeure.
5.2 Cooperation
. It is understood that it will require significant efforts of both Parties to implement this Services Agreement and ensure performance hereunder at the agreed upon level (subject to all the terms and conditions of this Services Agreement). The Parties will cooperate (acting in good faith and using reasonable commercial efforts) to effect a smooth and orderly transition of the Services provided hereunder from the Shanda Entities to the respective Group Companies to maximum permitted by applicable law.
5.3 Points of Contact
. Each Party shall assign an employee to act as the focal point of contact for the other Party.
5.4 Personnel.
Each Shanda Entity, in providing the Services, as it deems necessary or appropriate in its sole discretion, may (a) use its own personnel or the personnel of its Affiliates (it being understood that such personnel can perform the services on behalf of such Shanda Entity on a full-time or part-time basis, as determined by such Shanda Entity or its Affiliates) and (b) employ any of the Services or third parties to the extent such third party services are routinely utilized to provide similar services to other businesses of such Shanda Entity or are reasonably necessary for the efficient performance of any such services.
5.5 Further Assurances
. From time to time after the date hereof, without further consideration, each Party shall use reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things reasonably necessary, proper or advisable under applicable laws, and execute and deliver such documents as may be required or appropriate to carry out the provisions of this Services Agreement and to consummate, perform and make effective the transactions contemplated hereby.

ARTICLE 6

INDEMNITY
6.1 Indemnity
. Either Party hereby agrees to indemnify the other Party, and its respective Affiliates from any and all damages resulting from a demand, claim, lawsuit, action or preceding in the event of breaching, willful misconduct or gross negligence of such Party or any of its employees, officers, directors, agents or representatives.
ARTICLE 7

CONFIDENTIALITY
With respect to any information disclosed by one Party to the other Party for the purpose of this Services Agreement or otherwise accessible to such other Party during the performance hereunder ("Confidential Information"), the receiving Party agrees that it will use the same skill and care as set forth in Section 5.1 to prevent the disclosure or accessibility to others of the disclosing Party's Confidential Information and will use such Confidential Information only for the purpose of this Services Agreement. The receiving Party shall limit dissemination of and access to the other's Confidential Information to only such of its employees or agents or consultants who have a need to know for the purpose of this Services Agreement.
Specifically excluded from the foregoing obligation is any and all information that:
(a) is already known to the receiving Party at the time of disclosure or thereafter is independently developed by the receiving Party without breach of this Services Agreement;
(b) is already in the public domain at the time of disclosure, or thereafter becomes publicly known other than as the result of a breach by the receiving Party of its obligations under this Services Agreement;
(c) is rightfully received from a third party without breach of this Services Agreement;
(d) is furnished by the disclosing Party to a third party without a similar restriction on its rights; or
(e) upon advice of counsel, must be produced by the receiving Party as a matter of law; provided, however, that in such case the receiving Party shall promptly notify the disclosing Party and, insofar as is permissible and reasonably practicable without placing the disclosing Party under penalty of law gave it an opportunity to appear and to object to such production before producing the requested information.
ARTICLE 8

MISCELLANEOUS
8.1 Governing Law
. This Services Agreement shall be governed by and construed in accordance with Hong Kong law for the time being in force. Each of the Parties irrevocably submits to the non-exclusive jurisdiction of the courts of the arbitration seat to support and assist the arbitration process pursuant to Section 8.2 including if necessary the grant of interlocutory relief pending the outcome of that process.
8.2 Arbitration
(a) The Parties shall settle any dispute, controversy or claim arising out of or relating to this Services Agreement or the breach, termination or invalidity thereof (a “Dispute”) in accordance with this Section 8.2.
(b) The Parties irrevocably agree that any Dispute shall be finally resolved by arbitration pursuant to HKIAC arbitration rules as in force at the date of this Agreement and as amended by the rest of this Section 8.2. Any Party may refer any such Dispute to arbitration to be conducted in accordance with this Section 8.2 after a notice of Dispute has been served in writing by a Party on the relevant Party or Parties.
(c) Any arbitration commenced pursuant to Section 8.2(b) shall have its seat in Hong Kong to be held in HKIAC conducted in English by a tribunal consisting of three arbitrators to be appointed in accordance with Section 8.2(d) and be administered by the HKIAC.
(d) Shanda shall appoint one arbitrator. Cloudary shall appoint one arbitrator. The third arbitrator, who shall act as chairman of the tribunal, shall be chosen by the two arbitrators appointed by or on behalf of the Parties. If the third arbitrator is not chosen by the two arbitrators within 10 business days of the date of appointment of the later of the two party-appointed arbitrators, the third arbitrator shall be appointed by the HKIAC.
(e) Any arbitral award shall be final and binding upon the Parties and shall be enforceable in any court of competent jurisdiction in accordance with its terms.
8.3 Notices
1.1.1 . Any notice, claim or demand in connection with this Services Agreement or with any arbitration under this Services Agreement shall be in writing in English (a “Notice”) and shall be sufficiently given to or served on a Party if delivered or sent:
in the case of Cloudary, to:
[●]
Attention: [●]
Facsimile: [●]

in the case of Shanda, to:
[●]
Attention: [●]
Facsimile: [●]
or in any case to such other address or facsimile number as a Party may have notified to the other in accordance with this Section 8.3.
8.4 Entire Agreement
. Except for the agreements contemplated therein, this Services Agreement sets forth the entire agreement of the Parties with respect to its subject matter. This Services Agreement shall not be modified or amended except by written instrument executed by each Party. The Schedules to this Services Agreement shall be deemed incorporated in this Services Agreement and shall form a part of it.
8.5 Waiver
. The failure of a Party to insist upon strict performance of any provision of this Services Agreement shall not constitute a waiver of, or estoppel against, asserting the right to require such performance in the future, nor shall a waiver or estoppel in any one instance constitute a waiver or estoppel with respect to a later breach of a similar nature or otherwise.
8.6 Severability
. If any of the terms and conditions of this Services Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over the subject matter of this Services Agreement, such contravention or invalidity shall not invalidate the entire Services Agreement. Instead, this Services Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid, and equitable adjustment shall be made and necessary provisions added so as to give effect to the intention of the Parties as expressed in this Services Agreement at the time of the execution of this Services Agreement and of any amendments to this Services Agreement.
8.7 Counterpart Execution
. This Services Agreement may be executed in counterparts with the same effect as if all of the Parties had signed the same document. Such counterparts shall be construed together and shall constitute one and the same instrument, notwithstanding that all of the Parties are not signatories to the original or the same instrument, or that signature pages from different counterparts are combined. The signature of any Party to one counterpart shall be deemed to be a signature to and may be appended to any other counterpart.
8.8 Successors and Assigns
. This Services Agreement shall inure to the benefit of and shall be binding upon the Parties, their successors, and permitted assignees, and all persons claiming by, through, or under right of any of the aforesaid persons. This Services Agreement may not be assigned by any Party without the prior written consent of the other Party.
8.9 Continued Performance. During the period when a Dispute is being resolved, the Parties shall in all respects other than the issue(s) in dispute continue their performance of this Services Agreement.
8.10 Acknowledgment. The Parties hereby acknowledge and confirm that, effective from [-], 2014, Cloudary and its Subsidiaries shall have no obligation under the amended and restated non-compete and non-solicitation agreement entered into as of July 2, 2013 by and between Shanda Interactive Entertainment Limited and Shanda; provided that a change of control should have occurred to Cloudary on or prior to [-], 2014. .
[SIGNATURE PAGES FOLLOW']

WITNESS WHEREOF, the duly authorized officers or representatives of the parties hereto have duly executed this Services Agreement as of the date first written above.

CLOUDARY:

CLOUDARY CORPORATION
By:

Name:

Title:

SHANDA:

SHANDA GAMES LIMITED
By:

Name:

Title:

Schedule A

SERVICES:

1. （1）【XX及其关联公司（“XX”）】向【XX及其相关子公司（“XX”）】提供XX用户帐号清单，由XX查询后进行反馈,和（2）XX在盛大通行证用户中选取范围在过去5年内为有过【XX】充值付费记录、有过【XX】作品收藏记录及有过登录【XX】记录的用户。经前述两种方法正反向经查询后，双方就XX可向XX提供的具体信息资料范围（包括帐号、密码及帐号相对应的注册资料、充值消费日志等）进行沟通和确认。【XX】与XX经协商一致后共同提前公告盛大通行证用户；

2. 【XX】提供划账系统，由【XX】调用，供用户将盛大点券转换为起点币并充入到【XX】的账务系统中，并由双方经协商一致后共同提前公告盛大通行证用户。双方及时对账确认划账金额；
现存的文学专用币，【XX】可以要求从【XX】计费系统中导入到【XX】账务系统中，XX将提供数据迁移的支持。专用币余额迁移不涉及任何财务资金的结算。
3. 【XX】向【XX】及时提供沉淀资金余额对帐，并提供资金划转等服务；双方同意，在本协议签署时双方应进行一次余额对账并完成资金划转或由【XX】向【XX】出具书面资金支付承诺；在【XX】完成充值接口切换后的三个月内再进行一次余额对账并完成资金划转；

4. 【XX】尽合理商业努力配合【XX】完成支付方式的过渡；以及

5. 【XX】尽合理商业努力配合【XX】的邮箱服务器、工作流服务器迁移。若XX拥有XX相关历史工作流存档服务器材料的，应向XX提供。

XX希望获得上述服务的，应提前至少三十（30）天以书面形式向XX提出。
XX接收服务后，应尽最大努力且以不低于XX向盛大通行证用户提供的安全标准，维护XX用户帐户的安全。
在履行过程中，为提高效率，双方可成立沟通小组。

[SHANDA ENTITIES: [TO COME]]

POINTS OF CONTACT: [TO COME]
Schedule B
Offshore Entities

1. Cloudary Holdings Limited

2. Shanda Literature Singapore Pte. Ltd