Exhibit 4.72
EXCLUSIVE CONSULTATION & SERVICE AGREEMENT
This Exclusive Consultation & Service Agreement (hereinafter referred to as
"this Agreement") is entered into by and between the following two parties in
Shanghai on July 1, 2005.
PARTY A: SHANGHAI LINKTONE CONSULTING CO., LTD.
Address: ▇/▇., ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Zip Code: 200001
PARTY B: SHANGHAI WEILAN COMPUTER CO., LTD.
Address: ▇▇. ▇▇▇, ▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇-▇▇ Town, ▇▇▇ ▇▇▇▇ District, Shanghai
WHEREAS:
(1) Party A is a wholly foreign owned company incorporated in the People's
Republic of China, and owns consultation and service resources;
(2) Party B is a wholly domestic invested company incorporated in the People's
Republic of China, and has been approved by Shanghai Municipal Communications
Administration to provide information service (exclusive of Internet information
service and telephone information service);
(3) Party A agrees to provide Party B with logistic consultation and service;
and Party B agrees to accept the consultation and service provided by Party A;
The two parties have reached the agreement as follows:
1. CONSULTATION AND SERVICE: SOLE AND EXCLUSIVE RIGHTS AND INTERESTS
1.1 In the term of this Agreement, Party A will provide Party B with sole and
exclusive logistic consultation and service.
1.2 Party B agrees to accept the consultation and service provided by Party A;
and further agrees that within the term of this Agreement, Party B shall not be
able to accept consultation and service with regard to the above-said business
provided by any other third party, unless Party A agrees any other third party
to do so in advance.
2. PARTY A PROVIDES PARTY B WITH THE FOLLOWING CONSULTATION AND SERVICE:
2.1 Party A provides Party B with legal, finance and administrative consultation
and service.
2.1.1 The Legal Affairs Department of Party A will provide Party B with legal
service, assist Party B in handling all legal matters, including but not limited
to litigation and non-litigation matters.
2.1.2 The Financial Department of Party A will provide Party B with finance
service; assist Party B in handling all financial matters, including but not
limited to taxation and accounting settlement matters.
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2.1.3 The Administration Department of Party A will provide Party B with
administrative and logistic service, thus to guarantee Party B to conduct
business normally.
3. CHARGE AND PAYMENT ARRANGEMENTS:
3.1 As Party A provides Party B with consultation and service in the term of
this Agreement, Party B shall pay a sum of consultation and service charge of
RMB 7,000,000 yuan to Party A.
3.2 Deadline for payment: Party B shall pay the above stated charge to Party A
by March 31, 2006.
3.3 Payment method: Party B shall pay the full charge to Party A in Renminbi via
bank transfer into the following account:
Bank of deposits: _______________
Address: ________________________
Account number: _________________
4. STATEMENTS AND UNDERTAKINGS:
4.1 Party A hereby states and undertakes as follows:
4.1.1 Party A is a company duly incorporated in accordance with, and validly
existing under, the laws of PRC.
4.1.2 Party A signs and fulfills this Agreement within the limits of its
corporate powers and business scope; has already taken necessary corporate
behaviors and been duly authorized; and has already acquired the consent and
approval from the third party and the competent governmental agency, as well as
having not violated the restrictions exerted by those laws & contracts that are
binding or influential on it.
4.1.3 Once signed, this Agreement shall constitute obligations that are lawful,
effective and binding on Party A, and can be forcibly executed towards Party A
in line with the clauses of this Agreement.
4.2 Party B hereby states and undertakes as follows:
4.2.1 Party B is a company duly incorporated in accordance with, and validly
existing under, the laws of PRC, and has been entitled to provide information
service (exclusive of Internet information service and telephone information
service).
4.2.2 Party B signs and fulfills this Agreement within the limits of its
corporate powers and business scope; has already taken necessary corporate
behaviors and been duly authorized; and has already acquired the consent and
approval from the third party and the competent governmental agency, as well as
having not violated the restrictions exerted by those laws & contracts that are
binding or influential on it.
4.2.3 Once signed, this Agreement shall constitute obligations that are lawful,
effective and binding on Party B, and can be forcibly executed towards Party B
in line with the clauses of this Agreement.
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5. CONFIDENTIALITY
5.1 Party B agrees to do its best to take various kinds of rational
confidentiality measures to keep those confidential data and information that it
knows or gets in touch with for reason of its acceptance of sole and exclusive
consultation and service provided by Party A (herein- after referred to as
"confidential information") in secrecy; while Party B shall not be able to
disclose or transfer out any of such confidential information to any other third
party, unless having acquired a consent upon doing so from Party A in advance.
Once this Agreement is terminated, Party B shall return all those files,
documents or software that have borne such confidential information to Party A
as requested by Party A, or destroy such files, documents or software on its
own, and also delete all the confidential information from all the relevant
memory devices, and shall not continue to use such confidential information.
5.2 The two parties agree that no matter whether this Agreement is amended,
dissolved or terminated or not, this clause will remain effective.
6. COMPENSATION
Party B shall compensate Party A for any loss, damage, obligation or charge
caused by any litigation, claim for compensation or any other request lodged or
raised against Party A that have arisen or have been incurred for reason of the
consultation and service requested by Party B, and exempt Party A from any loss
or damage thus incurred.
7. EFFECTIVENESS AND TERM OF THIS AGREEMENT
7.1 This Agreement shall go into effect upon the date of execution by the
authorized representatives of the two parties, and expire on December 31, 2005.
7.2 The term of this Agreement may be lengthened once Party A confirms such a
lengthening in writing prior to the expiration of this Agreement. In case of
lengthening the term of this Agreement, the parties shall negotiate with each
other to decide on a new expiration date.
8. AMENDMENTS AND TERMINATION OF THIS AGREEMENT:
8.1 This Agreement shall be terminated upon the date of expiration, unless it is
renewed pursuant to relevant clauses under this Agreement.
8.2 Within the term of this Agreement, Party B shall not be able to terminate
this Agreement ahead of schedule, unless Party A has committed any severe
neglect, fraudulent behavior, any other illegal action or bankruptcy. Despite of
the above agreements, Party A shall have the power to terminate this Agreement
at any time by means of notifying Party B in writing by 30 days in advance.
8.3 After this Agreement is terminated, the rights and obligations of the two
parties under Clause 4 and Clause 5 shall remain effective further still.
8.4 Either party shall be able to send out a written notice to the other party,
which has committed any behavior in severe violation of this Agreement
(including but not limited to violation of its
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obligations described under Clause 2 or Clause 3 under this Agreement) and has
further failed to rectify its violation behavior as such within the ensuing 30
days after its receipt of a notice sent out by the observant party with regard
to both the occurrence and existence of its violation behavior, for terminating
this Agreement immediately; however, the termination of this Agreement does not
jeopardize any right or relief that the party asking for termination of this
Agreement has enjoyed according to laws or for any other reason.
9. FORCE MAJEURE
9.1 "Force majeure" means all those events which cannot be foreseen at the time
of signing this Agreement, and whose occurrences and consequences cannot be
avoided or overcome, and which occur after the date when this Agreement is
signed and impede either party from fulfilling a part or the whole of this
Agreement. Such events include earthquake, typhoon, flood, fire, warfare,
discontinuity of international or domestic transportation work, prohibition or
any other similar action taken by the government or any other public organ,
infectious disease and any other accidents that cannot be foreseen, avoided or
overcome, including those events that are defined as force majeure events
according to the generally acknowledged business practices.
9.2 In case of occurrence of any force majeure event, either party shall be able
to suspend its fulfillment of its obligations which are affected by such a force
majeure event during the period of postponement thus incurred, and postpone the
time limit for its fulfillment of such obligations accordingly; the time length
of such a postponement shall be equal to the period of time when the fulfillment
of such obligations is suspended; and the affected party does not need to pay
any penalty or make any compensation in such a case.
9.3 The party that claims the occurrence of force majeure shall, within the
ensuing ___ days after occurrence of the force majeure event, shall notify the
other party of the occurrence of such a force majeure event in writing, plus the
time length of its duration. Furthermore, the party that claims the occurrence
of force majeure shall make all rational efforts to terminate the force majeure.
9.4 In case of occurrence of any force majeure event, the two parties shall
immediately negotiate with each other to seek after an equitable method of
settlement and make all rational efforts to minimize the consequences of this
force majeure event.
10. NOTIFICATION
10.1 In case of occurrence of any matter that is likely to give rise to any
dispute or affect the fulfillment of this Agreement, either party shall have
obligation to notify the other party in an effective written manner within a
rational period of time.
10.2 The effective modes for acknowledgement for receipt of a notice under this
Agreement include: registered mail, express mail, and courier delivery.
10.3 Any written notice, no matter sent by registered mail, express mail or
courier delivery, shall be deemed as being received on the date when the
concerned recipient puts his or her signature on
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acknowledgement for his or her receipt of such a notice, or on the 7th day after
being sent out. If the date of signing the acknowledgement for receipt of this
notice comes earlier than the 7th day after the notice is sent out, then the
same notice shall be deemed as being received on the date of signing the
acknowledgement; and on the contrary, the notice shall be deemed as being
received on the 7th day after the notice is sent out. All notices shall be sent
to the following addresses of the two parties:
Party A's address: ▇/▇., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ East, Zip Code:
200001
Party B's address: ▇▇. ▇▇▇, ▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇-▇▇ Town, ▇▇▇ ▇▇▇▇ District,
Shanghai
Either party that needs to change its address stated above shall notify the
other party in writing.
11. SETTLEMENT OF DISPUTES
11.1 In case that any disputes arise between the two parties with regard to
their fulfillment of relevant matters under this Agreement, they shall firstly
endeavor to solve such disputes through friendly negotiations. In case that they
fail to solve such disputes after negotiation, it is then necessary for them to
render such disputes for settlement via litigation or in a non-litigant way.
11.2 In case that the disputes between the two parties cannot be solved through
friendly negotiations, either party shall be entitled to institute legal
proceedings to the People's Court in the place where Party A is located.
11.3 The other matters under this Agreement than those in disputes shall be
performed as per the stipulations under this Agreement further still, during the
course of litigation.
12. GOVERNING LAWS
This Agreement shall be governed by, and interpreted in accordance with, the
laws of the People's Republic of China.
13. GENERAL PROVISIONS
13.1 Either party's exemption of the other party ("the latter") from the
latter's responsibility for either violation or failure in fulfillment of any
clause under this Agreement, or the latter's failure in fulfilling any clause or
any right under this Agreement for one or more times, shall not be construed as
any amendment into any right under this Agreement and a waiver of its right of
investigating into the latter's responsibility for any subsequent violation or
failure in fulfillment of this Agreement, or a waiver of any of such clauses or
rights in this Agreement.
13.2 The ineffectiveness of any clause in this Agreement shall not affect the
effectiveness of any other clauses under this Agreement. In the event that any
clause under this Agreement is found ineffective, such a clause shall be deemed
as having been superseded by a different clause which caters for the original
interests of the parties as much as possible and will not become ineffective.
13.3 The licensor shall not be able to transfer or lease out, put in pledge, or
re-license this Agreement and any of those rights and obligations that the
licensor grants the licensee under this
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Agreement to any other third party, without acquiring the written consent upon
doing so from the licensor; meanwhile, the licensee shall not transfer out any
portion of its economic interests that it has acquired via license, or its
rights under this Agreement, in any manner to any other third party.
13.4 This Agreement and its appendixes shall constitute a complete agreement by
and between the parties under this Agreement with regard to the theme of this
Agreement. In the event that this Agreement conflicts with any of those prior
understandings, statements, arrangements, undertakings and agreements reached by
and between both parties orally or in writing, the present agreement shall
prevail, and also supersede all those oral or written understandings,
statements, arrangements, undertakings and agreements that conflict with this
Agreement.
13.5 The clause titles that are inserted into this Agreement have been given
only for reading purpose, and shall not be used to explain the clauses; besides,
these titles do not constitute any restrictions against the contents of this
Agreement, either.
14. SUPPLEMENTARY CLAUSES
14.1 This Agreement is written in two counterparts, each party to retain one.
14.2 Those documents and agreements with regard to consultation and service that
the two parties have signed shall constitute the appendixes to this Agreement.
These appendixes shall each constitute an integral component part of this
Agreement, and shall be of equal legal effect with this Agreement.
14.3 It is allowed to revise, amend or supplement this Agreement after the two
parties have agreed to do so; in the meantime, such revision, amendment and
supplementation into this Agreement shall not become effective until having been
signed in writing by the authorized representatives of the two parties and also
having borne the official seals of the two parties.
14.4 Those matters not covered under this Agreement shall be handled by and
between the two parties in conformity to the Contract Law of the People's
Republic of China and relevant laws and regulations.
Party A: SHANGHAI LINKTONE CONSULTING CO., LTD.
Authorized representative: Sealed
Date:
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Party B: SHANGHAI WEILAN COMPUTER CO., LTD.
Authorized representative: Sealed
Date:
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