Exhibit 4.73
CHINA UNICOM CO., LTD.
COOPERATION AGREEMENT ON MOBILE VALUE-ADDED SERVICES
AGREEMENT NO.: CUVAS-V05-B2005-0560
Party A: China Unicom Co., Ltd.
Party B: Shanghai Unilink Computer Co., Ltd.
DATE OF AGREEMENT: 18 MAY 2005
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CONTENTS
Appendix contents of services.............................................. 3
Preface.................................................................... 4
Chapter 1 Whereas......................................................... 4
Chapter 2 Terms........................................................... 5
Chapter 3 Service cooperation............................................. 8
Chapter 4 Operation interface and its maintenance......................... 10
Chapter 5 After service management interface.............................. 12
Chapter 6 Security of mobile value-added services......................... 12
Chapter 7 Intellectual property........................................... 12
Chapter 8 Charging, accounting and charge agency.......................... 13
Chapter 9 Withdrawal mechanism and contract breach settlement............. 16
Chapter 10 Modification and termination of the agreement................... 18
Chapter 11 Confidential.................................................... 19
Chapter 12 Other liabilities for contract breach........................... 20
Chapter 13 Force majeure................................................... 20
Chapter 14 Law application and dispute settlement.......................... 21
Chapter 15 Others.......................................................... 21
Signature
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APPENDIX CONTENTS OF SERVICES
Unicom Messaging
Industry Messaging
Music Street (10155)
Music Street (10159)
Wireless Internet Service
Colorful E-mailing
BREW
UniJa
Localizing Star
Portable Stock Market
Video Channel
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PREFACE
1. This Agreement is signed by the following parties on __________________ in
Beijing: China Unicom Co., Ltd. (Party A) is a company that is established and
in effective existence in accordance with China laws, whose domicile is 000 Xxx,
Xxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx and the legal
representative Xxxxx Xxxxxxx. Shanghai Sky Blue Computer Co., Ltd (Party B), is
a company that is established and in effective existence in accordance with
China laws, whose domicile is 5 F, Dongyin Mansion, 689 Beijing East Road,
Shanghai and the legal representative Yang Lei
2. Application scope: this Agreement is composed of the Text (hereinafter
referred to as "agreement text") and the Appendixes (hereinafter referred to as
"service appendix").The Text is the document that the parties shall sign for the
cooperation of mobile value-added services and which prescribes the rights and
obligations of the parties in the cooperation of mobile value-added services.
The appendixes prescribe in detail the rights and obligations of the parties in
the cooperation of mobile value-added services according to the categories of
the services. The parties shall sign the agreement text and the corresponding
service appendixes for the cooperation of mobile value-added services.
3. The agreement text, service appendixes and the documents that supplement or
modify them are provided by Party A and come into force in accordance with the
agreed conditions and/or procedures between the parties.
4. If Party A and Party B intend to cooperate in other value-added services
(hereinafter referred to as "new value-added service") besides the mobile
value-added services prescribed in the service appendixes, Party A will provide
the draft of the appendix for the new value-added service which may become a
service appendix to this agreement after the agreement between the parties.
CHAPTER 1 WHEREAS
1. Party A is a telecom company which is authorized by the information industry
authority of the State Council and provides to the public basic telecom services
and value-added telecom services nationwide. It has its own basic telecom
network, value-added service platform as well as service marketing system and
great pool of customers. Party A has the full power to sign and perform this
Agreement.
2. Party B is a Content Provider (CP)/Service Provider (SP) that lawfully
provides mobile value-added content/service and is qualified for perform the
cooperation services under this Agreement. It has the following certificates for
qualification:
a. No. 3101142045075 Business License of Enterprise Legal Person;
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b. No. B2-20050062 Business License for Value-added Telecom Service; and
c. other qualification certificates (which can be specified in the corresponding
service appendix) that prove Party A's competence and qualification to perform
the value-added service it intends to cooperate with Party A;
d. Certificates of competence and/or test pass that Party A acknowledges.
3. Party B intends to provide mobile value-added services on the basis of Party
A's mobile communication network and mobile value-added service platform and it
has the full power to sign and perform this Agreement.
4. Party B has signed effectively the Statement of Information Security
Responsibilities or other documents of different names but of the similar
content and has agreed to undertake the responsibilities of relevant information
security in accordance with relevant laws and regulations.
Based on the above conditions,
The parties hereby sign this win-win Agreement in the principles of equality and
mutual benefit as well as making advantage of each other's advantages in the
goal of developing and enriching mobile value-added services.
CHAPTER 2 DEFINITIONS
The following terms shall be defined as follows, unless there are specific
definitions in clauses of this Agreement or other interpretation in writing
between Party A and Party B. Other terms that are not defined expressly in this
Agreement shall be interpreted in accordance with the laws and regulations of
China, rules of government departments or the policies of authorities. Industry
customs shall be referred for interpreting the terms where definite
interpretation of the terms fails to be included in the above documents.
2.1 CP/SP
CP is the abbreviation for Content Provider., for the purpose of this
Agreement, CP shall only refer to content provider that provides
information source for service;
SP is the abbreviation for Service Provider. For the purpose of this
Agreement SP shall refer to professional service institution that provides
telecom service and information service. SP can be a network runner or a
provider that integrates other network providers' services and provides to
its customers full service.
For the purpose of this Agreement, CP/SP shall refer to professional
institution that is willing to cooperate with Party A and provide Party A's
mobile communication network subscribers with various mobile value-added
services using the mobile communication network and value-added service
platform that
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Party A provides.
2.2 SUBSCRIBERS
Subscribers shall refer to such individuals, corporate persons or other
entities that connect with Party A's mobile telecom network and data
service platform via mobile terminals or other telecom terminals approved
by Party A, and voluntarily receive mobile data services provided by Party
A and Party B.
2.3 MOBILE VALUE-ADDED SERVICE
Telecom services and information services that are carried by Party A's
mobile communication network.
2.4 MOBILE COMMUNICATION NETWORK AND VALUE-ADDED SERVICE PLATFORM
In this Agreement, mobile communication network refers to the
infrastructures of mobile communication service that Party A provides.
Value-added service platform refers to the added service platform targeted
at one certain value-added service or several value added services on the
basis of mobile communication network, which includes but not limited to
functions of providing subscriber interface, CP/SP interface, service
management and application charging.
2.5 SERVICE SUPPORT SYSTEM
It refers to systems like subscriber management and certification,
charging, accounting and awning that are necessary for the normal operation
of services.
2.6 COMMUNICATION PASSAGE
The physical and logic linkage provided for communication between
subscribers in mobile communication system.
2.7 PORTS
The interface settings for the communication linkage between the
value-added service platform and the mobile communication network as well
as between the value-added service platform and the application server
provided by CP/SP, including communication address and relevant parameters.
2.8 DATA TRAFFIC
The communication traffic that flows in and out through the value-added
service platform.
2.9 TEST
The tests of services provided by CP/SP with certain tools and methods,
including network linkage test, interface consistency test and functional
test, etc, the aim of which is to guarantee the service meet the
requirements of start and operation. The test period is the period that is
necessary for the test or the period that Party A considers necessary for
the test.
2.10 WITHDRAWAL BUFFER PERIOD
When CP/SP service needs to be terminated, CP/SP would inform the
subscribers in proper ways at a certain time before it terminates the
service and still continue to provide the service to subscribers during
this period according to subscriber protocols. This period is called the
withdrawal buffer period, the aim of which is to reduce the loss that it
might have happened to subscribers due to the termination of the service.
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2.11 EQUIPMENT JOINTS
The position where two physical or logic equipments are connected.
2.12 MAINTENANCE INTERFACE
The service system that provides subscribers with the service they need is
composed of different parts and the maintenance responsibility of the parts
are for different subjects. The maintenance interface is the place that
divides technical service and maintenance responsibility.
2.13 SYSTEM MAINTENANCE
Works like regular maintenance and breakdown repayment that are necessary
for the normal function of the service system.
2.14 GATEWAY
The equipment that performs functions like protocol conversion and system
linkage, etc.
2.15 CUSTOMIZATION
The subscriber decides the contents of the service he accepts and
volunteers to accept the service.
2.16 7 X 24 HOURS
Seven days a week and 24 hours a day, no holiday break.
2.17 COMMUNICATION CHARGE
The charge that the subscriber or CP/SP has to pay for using Party A's
network resources which Party A collects from subscribers or CP/SP and own.
2.18 INFORMATION SERVICE CHARGE
The charge that the subscriber has to pay for using CP/SP's content
information or application service except the communication fee. Party A
and B share the charge according to their proportion. The charge that Party
A's charge accounting system works out and which should be collected from
subscribers before the parties take their proportions is called "the total
amount of communication charge". The communication service charge that
Party A gives to Party B after taking out a certain proportion and fees
according to their agreement is accounting information service charge.
2.19 CHARGING PERIOD
The period that Party A's charging system calculates Party B's total
account of information service charge is usually from 0:00:00 of the first
day of a natural month to 24:00:00 of the last day of the month.
2.20 ENTERPRISE CODE
The "CP/SP Enterprise Code of China Unicom Mobile Value-added Service" is
the sole enterprise code in Party A's system for identifying Party B.
2.21 SP SERVICE SYSTEM
The online office system that Party A builds and maintains for realizing
the regular work of connecting in, protocol subscription, reconciliation,
information release and feedback during the cooperation between the
parties.
2.22 RANKS
Party A ranks all the CP/SPs outside the service support period according
the
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standard(s) of information service charge income or sales in the high-low
order. If there's decimal fraction after multiplying the total number of
CP/SPs, only the whole number will be taken and the decimal fraction shall
be excluded. If information service charge income can not be defined of
CP/SP due to reconciliation, it shall be ranked according to Party A's data
before reconciliation.
2.23 SERVICE SUPPORT PERIOD
During the three full charging periods since the service starts to charge
after Party B has got the whole-network connecting in qualification and the
certain service has passed the first test, Party A would have some
preferential policies on Party B in service ranking, and service withdrawal
of the service. This period is called service support period, the aim of
which is to provide a service nursing period for the cooperation between
the parties. The parties may choose to apply the service support period or
not according to the features of the cooperated mobile value-added service
and prescribe the rights and obligations of the parties during the period
specifically in the specific service appendixes.
2.24 SERVICE SHIELDING
The service shielding of services except Music Street and Unicom Messaging
is that Party A cancels the demonstration of Party B's service/subject to
subscribers but keep the subscriber's customization and charging; the
service shielding of Music Street refers to closing the connecting in
number temporarily; while the service shielding of Unicom Messaging refers
to keeping the subscriber's customization but set the service information
charge as 0.
2.25 SERVICE LIFT
It refers to that Party A stops its cooperation with Party B's
service/subject and cancel subscriber's customization and stops the service
charging.
2.26 WITHDRAWAL
Party A terminates its cooperation with Party B on a service category and
wouldn't take Party B's cooperation application on the service category in
a certain period.
2.27 SERVICE CATEGORY
The categories divided from technical similarity according to Party A's
service management rules, e.g. Unicom Messaging service category.
2.28 SUBJECT
The item under which the smallest unit service that Party A's service
management rules prescribe is categorized.
2.29 SMALLEST UNIT SERVICE
The smallest unit of the cooperated mobile value-added service that Party
A's service management rules prescribe and is called "service" for short.
CHAPTER 3 SERVICE COOPERATION
3.1 Party A provides for value to Party B network resources and subscribers
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resources, as well as connecting in service, customer service, charge
agency with its customer service, charging and service support system.
3.2 Party A allocates to Party B enterprise code for identifying Party B in
Party A's charge accounting system, value-added service platform system as
well as customer service system. Party A guarantee the stability of the
enterprise code that Party B obtains and acknowledges that the enterprise
code has the same effect as the enterprise name of Party B in Party A's
system.
3.3 Party A is responsible for building and maintaining the SP service system
to realizing the communication of the cooperated mobile value-added service
under this Agreement between the parties. Party A shall tell Party B
subscribername and password (password can be changed by Party B) in
accordance with SP service system working process. Party B may use the
subscribername and password to log onto the SP service system and operate
under instructions of the system to realize the mutual communications
related to mobile value-added service cooperation like applying for mobile
value-added service cooperation, modifying company information online, and
obtaining Party A's test affirmation. Party A shall be responsible for the
normal operation of SP service system and update information in the system
timely. Party B shall register true information of its accurate name, the
specific bank, account, contact person and customer service in SP system
and shall update timely if any of the information changes.
3.4 Information, releases, affirmations and explanations like contract
information, accounting information release, data, tables, notices and
replies produced in the SP service system shall be deemed as evidence of
mutual communication between the parties, unless stated particularly and
the time they be deemed evidence shall be the time they arrives the
connecting in point of Party B's SP service system. Party B shall itself
preserve with due care the above affirmations or explanations like data,
tables, affirmation, notices, replies. Party A may provide copies or
enquiry function in SP service system but is not responsible for preserve
intact the above information.
3.5 Party B shall itself protect with due care the subscribername and password
for logging onto the SP service system and shall not allow a third party to
use them. If a third party or an employee that is not necessary to know the
subscribername and password knows the subscribername and password due to
Party B's reason, Party B shall be responsible for its own losses and be
liable for the losses caused to Party A.
3.6 The time when the cooperated service between the two parties shall be the
time when Party A starts charging.
3.7 Party B provides to customers mobile value-added service content and/or
service with Party A' s mobile communication network and value-added
service platform. Detailed issues like the description, cooperation manner,
sharing proportion and contract breach of the mobile value-added service
are prescribed in corresponding service appendixes.
3.8 If Party B wants to add some mobile value-added service or modify the
content of preset service (like service scope, price, etc), it shall submit
to party A writing
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application or effective application in Party A's service system and also
the certificates that proves its competence and qualifications for running
the service. Party A will test the service that Party B applies and issues
to Party B a writing ratifying document or affirms in appropriate ways in
SP service system after the service have passed the test. The parties shall
sign (or modify) the corresponding service appendix when necessary.
3.9 Party B shall be responsible for providing the detailed content and/or
service of the value-added service that the subscriber customizes. Before
providing to subscribers mobile value-added service in any manner, Party B
shall fully keep subscribers notified about the information that
subscribers need to know when accepting service and/or paying information
service charges like the content, manner and charge of the service, etc.
Party B can only start providing the service after it has performed the
above notifications in provable manner and has obtained in provable manner
the affirmation and/or customization of subscribers of accepting the mobile
value-added service. Without the writing previous consent of Party A, Party
B shall not require subscribers to customize and collect the corresponding
charge through mandatory manners like " the subscriber's acquiescence shall
be deemed acceptance" or " it shall be deemed accepted unless the
subscriber call or send message to cancel the service" or cause unnecessary
burdens to subscribers with the such issues.
3.10 Where Party B can't continue providing value-added service due to its
improper business or other reason of its own, it shall be directly
responsible for explaining to subscribers and handling the consequences and
inform to Party A about the situation three months in advance. Party A
shall terminate collecting information service charge as Party B's agent
and assist Party B in explaining to the subscribers.
3.11 During the term of this Agreement, Party B shall submit to Party A reports
of data of subscriber development, subscriber categories, subscriber's
using habits and service prospect as required by Party A and transfer to
Party A subscriber information necessary for the service management timely
to guarantee the timely update of Party A's subscriber information
database.
3.12 Party B agrees to observe strictly the provisions of management rules,
service quality standards, customer service standards and other documents
that Party A has made or will soon make. Party A shall provide party B with
the corresponding documents for it to observe before it formally enacts the
above management rules, quality standards and/or service standards.
3.13 The parties may consult to xxxx Party A's or some service's name,
trademark, xxxx or LOGO in the cooperated value-added service. Nevertheless
without Party A's require of affirmation, Party B shall not in any manner
make subscribers mistake the content or service it alone provides as
service provided by Party B or the two parties jointly.
3.14 Only at Party A's requirement or writing consent can Party B use Party A's
name, trademark, xxxx, LOGO or other materials in marketing activities it
alone takes of the mobile value-added service; party B shall abide by China
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Unicom VI Managing Guideline or other rules of Party A's in using Party A's
name, trademark, xxxx or LOGO. Party B also ensure that it shall never
infringe Party A's trademark or other intellectual properties under any
situation.
3.15 Party B shall not propagandize competitors that have the same as and/or
similar business scope to Party A or make statement that favors the above
competitors in the content service and/or other services Party B provides.
The parties hereby understand that: breach of this agreement shall be
deemed serious contract breach.
3.16 Party A and Party B may market the mobile value-added service in various
manners separately or jointly as appropriate. Party A and Party B will sign
additional agreement on cooperation in marketing the mobile value-added
service when necessary.
3.17 Party B shall be liable for any damages arising from any mobile value-added
service to subscribers by any third party through Party B's maintaining
interface. Party A shall not be liable for subscribers or the third party
for this damage.
3.18 Party B shall acknowledge the modification of service and charging mode
that party A proposes for the development of the service and assist Party A
in fulfilling the above modifications, except otherwise agreed by the
parties.
CHAPTER 4 OPERATION INTERFACE AND ITS MAINTENANCE
4.1 During the term of this Agreement, the Parties are responsible for their
respective interfaces with equipment joints as boundaries. The working and
maintenance interface of the parties are demonstrated in the following
graph.
Application server
CP/SP co-location host computer
Charging and accounting system
CDMA value-added service platform
Text message Center Text message gateway
Co-location network Party A's internal network
CDMA network GSM network
Customer service center Subscriber's cell phone
Party B Public network
Subscribers' database other manners
Customization
Party A's responsibility Party B's responsibility
Maintenance interface of the Parties
4.2 Party A's maintenance responsibility
4.2.1 Party A is responsible for the software and hardware necessary for its
mobile data network and value-added service platform.
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4.2.2 Party A shall cooperate with Party B in linking the communication line
from Party A's network or server to Party B's server.
4.2.3 Party A has the responsibility to open its technical protocol standards
and interface standards related to value-added service to Party B.
4.2.4 Party A shall be responsible for maintaining the normal network
communication within its responsibility as displayed in the above graph and
shall be liable for breakdowns not caused by Party B. Party A shall be
entitled to limit the transmission of abnormal overloaded data or
information which would affect the safety of Party A's network operation.
4.2.5 Party A has the right to control and adjust the data traffic and ports
within its maintenance responsibility scope, but it should inform Party B
of the result.
4.2.6 Party A has the right to do necessary tests and data statistics of the
service provided by Party B during its operation when necessary and require
Party B to mend in compliance with Party A's mobile value-added service
management rules according to the test result.
4.2.7 Party A is responsible for providing to Party B the data traffic
statistics that Party B uses the communication passage and guarantee the
statistics to be reliable and timely.
4.2.8 Party A shall inform Party B before transmission interruption caused by
test of gateways or other network equipments, maintenance or other
predictable causes as soon as possible, including the detailed cause, time
and period of the interruption.
4.2.9 Party A shall make sure to inform Party B timely within reasonable time
when there is interruption caused by unpredictable causes such as gateway
breakdown or other network breakdown.
4.3 Party B's maintenance responsibility
4.3.1 Party B itself shall be responsible for building and maintaining its
system, including all the works and expenses for hardware equipments,
system tests, starts and system maintenance.
4.3.2 Party B shall be responsible for connecting Party B's system to Party A's
gateways or servers as well as the application, rent and maintenance of the
relevant communication lines and shall be responsible for the corresponding
expenses.
4.3.3 Party B shall ensure that the test, start and maintenance of its system
shall not be conducted during the busy time of Party A's service and that
works that would greatly affect subscribers shall be conducted late at
night, to reduce the influence on mobile value-added service subscribers as
much as possible. Party B shall ensure that the above works will not affect
the normal operation of Party A's network and shall be liable for the
breakdown of Party A's network breakdown caused by these activities.
4.3.4 Party A shall not conduct maintenance, start and modification of its
system unless it has informed Party A in writing or appropriate ways (e.g.
through SP
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service system) and has informed subscribers in mail, publication or text
message after it had been affirmed by Party A, to ensure to reduce the
effect against subscribers to the greatest extent.
4.3.5 Party B shall comply with Party A's adjustment of data traffic to ensure
the stability of value-added services at emergency.
4.3.6 Party B shall ensure that the data traffic shall pose any threat to the
safe load of the network when it transfers data or information to Party A's
communication platform. Party A shall be entitled to limit the transmission
of abnormal overloaded data or information which would affect the safety of
Party A's network operation.
4.3.7 Party B ensures to provide non-stop 24 hours system maintenance.
CHAPTER 5 AFTER SERVICE MANAGEMENT INTERFACE
5.1 Both parties shall have 7 X 24 hours telephone technical support center and
technical support e-mail.
5.2 The complaint center or consulting center (1001 customer phone service) of
Party A shall transfer the complaint or problem that isn't its
responsibility to Party B who shall make primary respond to Party A or
direct respond to the subscriber within one hour and shall be responsible
for the final answer or settlement of the problem.
5.3 Party B shall not ask the subscriber to contact Party A directly when it
considers the consultation or complaint it receives is within Party A's
responsibility. When Party B does consider the consultation or complaint is
within Party A's responsibility, the technical service people or technical
service system of Party B shall assist Party A analyze and handle the
problem and contact Party A within one hour and transfer the problem to it
after Party A affirms.
5.4 Where one party can not judge the consultation or complaint it receives is
within which party's responsibility, it shall contact the other party to
define the responsibility and help the subscriber solve the problem.
Neither of the parties shall switch the problem to one another.
5.5 Where the complaint is about that the service quality doesn't reach the
promise in propaganda, the party that makes the propaganda promise shall
reply to the subscriber and solve the complaint while the other party
should provide cooperation when necessary.
5.6 Party B shall make detailed description about the service it will provide
to subscribers in the service start application it submits according to the
cooperated service category. The description shall be prescribed in
appendix when the two parties consider necessary.
5.7 Party B shall provide to the customer service people of Party A the network
interface of and access to service enquiry and service cancel.
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CHAPTER 6 SECURITY OF MOBILE VALUE-ADDED SERVICES
6.1 Party B shall comply with the state regulations, rules and policies on
telecom and internet information. Party B ensures the content of its
information service does not violate the state laws, regulations and
policies and that it won't send the illegal information as prescribed in
the Statement of Information Security responsibilities. It shall be deemed
serious contract breach if Party B has any of the acts as prescribed above
in this article, and Party B shall be liable for the economic loss it
caused to Party A. Where the above breaching acts cause negative social
influence on Party A, Party B shall declare its responsibility publicly in
appropriate manners and apologize to Party A publicly.
6.2 Party B shall be responsible for solving any of the disputes arising form
the security and lawfulness of the information it provides.
6.3 Party B shall ensure that the service it provides does not have the hidden
danger that the service itself shall cause damage to Party A's mobile
communication network, data service platform or the benefits of other
subscribers or that the service might be used by some subscribers to cause
damage to Party A's mobile communication network, data service platform or
the benefits of other subscribers.
CHAPTER 7 INTELLECTUAL PROPERTY
7.1 The issues related to copyright, trademark right, patent right or other
intellectual rights during the cooperation between the parties shall be in
accordance with the relevant state laws. Party B shall sign necessary
authorizing/licensing agreement with the owner/person with right and/or its
agent in accordance with relevant rules and provisions of the state, to
ensure that the mobile value-added service Party B provides won't violate
the legal rights and interests of the owner/person of right of the
intellectual property. Party A shall not be liable for any intellectual
property dispute with third party arising from the content of the service
Party B provides.
7.2 Party B is responsible for solving any disputes arising form the security
and lawfulness of the content of the service it provides and shall bear the
economic loss from litigations, claims or administrative penalty arising
from violating the above provisions and rules.
7.3 Party B shall ensure that it observes the rules of the state about basic
citizen rights (e.g. citizen privacy) involved in mobile value-added
services in its mobile value-added services, especially the service of
Localizing Star. Party B shall fully notify the nature, application and
relevant laws and rules of the service to the subscriber when the
subscriber is customizing or when it is introducing or marketing or
providing the localizing service to subscribers. Party B can only start the
localizing service of the subscriber unless the subscriber has fully
understood and accepted the service that Party B provides (Party B must
have
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evidence for that). Party B shall not use the location information that the
subscriber releases from using the localizing service (one service, several
services or integrated service) for other aims or uses that the subscriber
didn't originally customize. Party A and Party B shall both abide by the
relevant provisions and rules of the state when providing localizing
service to particular professions, regardless whether the provisions or
rules have been issued or implemented when/before this Agreement and the
corresponding appendix are signed.
7.4 Party A may design, make or register trademark, symbol, xxxx or LOGO for
its mobile value-added service and use them for marketing. If the parties
cooperate in the above marketing activities (hereinafter referred to as
"cooperated marketing"), they shall agree on detailed information about
cooperated marketing in the service appendix or sigh cooperation agreement
on separate marketing or cooperated marketing when necessary. The
cooperated marketing activities or activities for cooperated marketing
shall not violate the trademark right, intellectual property or industrial
property of either of the parties and/or a third party. Where either of the
parties' separate acts violates other's trademark right, intellectual
property or industrial property, the tortfeasor shall be liable for all the
torts and compensation for the economic loss that might happen to the
non-tort party and eliminating the possible negative social influence that
might happen to the tortfeasor party.
CHAPTER 8 CHARGING, ACCOUNTING AND CHARGE AGENCY
8.1 CHARGING
8.1.1 Party A prescribes the price of communication and the price of information
service shall in principle be prescribed by Party B and ratified by Party
A. Any change of the information service price (including the charging
ways) can only be formally implemented after Party A's ratification.
8.12 Party B may either opt to charge in times, time or month when prescribing
the information service price or provide various charging ways for
subscribers to choose. Party B shall expressly notify subscribers of the
charging manner, standards, payment time and customer service phone number
through releasing them on its website or demonstrating them in
customization agreement or on cell phone interfaces or sending test
messages.
8.2 ACCOUNTING
8.2.1 All the communication charges that subscribers or Party B have to pay for
using Party A's mobile communication network come to Party A.
8.2.2 The parties account the total amount of information service charge. The
parties share the total amount of information service charge after the 8%
bad account coverage and other expenses that the two parties affirm have
been taken off. Party A acquires the share of certain proportion is from
providing the following services: mobile communication network subscriber
resources, relevant service
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platform, service test and quality supervision, uniform customer service
and service propaganda, charge agency and/or charge calculating agency,
etc.
8.2.3 The sharing proportion of information service charge shall be prescribed
in service appendix. Where the charging and accounting periods, accounting
process are not set forth in the service appendix, the agreement text shall
be applied.
8.2.4 Accounting period: the parties make accounts settlement every month and an
accounting period is a full natural month.
8.25 Accounts settlement process
(1)Subscriber uses the mobile value-added service in the first month.
(2)Party A releases to Party B the accounting information (like
communication charge, information service charge as well as the total
amount, etc) through the SP service system before the tenth day of the
second month.
(3) Party B may reconcile the total amount of communication charge and
information service charge with Party A before the fifteenth day of the
second month and send the affirmed statement of reconciliation and invoice
with seal on to the contact person of Party A before the twenty-fifth day
of the second month.
(4) Party A shall pay the money to the specific bank account of Party B
before the twenty-eighth day of the third month.
(5) Whereas Party B fails to send back the reconciliation affirmation
statement and invoice (with official seal of Party B as required by Party
A) due to reconciliation or the cause that Party B is accountable for,
Party A shall delay its account settlement payment to Party B for the
service of the month, i.e. Party A pays to Party B before the end of the
next quarter of the year after it has received the reconciliation
affirmation statement and invoice. That Party A delays the payment for
applying this article shall not be deemed as the delayed payment prescribed
in this Agreement and shall not bear the liabilities for breach of
contract.
(6) Whereas Party B fails to send the reconciliation affirmation statement
to Party B within one year (from the fifteenth day of the second month
since the service is provided), it shall be deemed that Party B waivers its
right to collect the payment. Party A shall be exempted from the liability
to perform this payment since the day.
(7) In the course of reconciliation, Party B or Party A shall submit to the
other party formal invoice as required by Party A or Party B.
8.2.6 Parties shall reconcile the total amount of communication charge and
information service charge in the process of account settlement. The data
of Party A shall be authentic if the error between the statistical data of
Party A and Party B does not exceed (< or =) 5% ; If the error exceeds
( >)5%, Party A and Party B shall reconcile again to define the causes and
solve it as appropriate duly according to the situation. If Party A delays
its payments to Party B for various charges due to the reconciliation, it
shall not be deemed that Party A is in breach of the obligation of making
payment timely.
8.2.7 Party A shall calculate the respective business incomes that it should
give to Party B according to the sharing proportions they agreed in
cooperate businesses and plus them together, then minus (or plus) the other
amounts of
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money that Party B should pay (or get), and the amount of money after that
shall be the income that Party A should give to Party B (this income is
called "information service charge" for short).
8.2.8 If the accounting result shows the information service charge as minus,
Party B shall pay to Party A the corresponding money. The payment period
and process of Party B is the same as that of Party A as prescribed in this
Agreement. Party B shall acquire formal invoice from Party A soon after it
has made the payment.
8.2.9 Party B shall update timely necessary payment information like bank
account registered in SP service system. Where Party A's payment is
returned by the bank due to Party B's failing to update timely the
information necessary for payment or any other cause of Party B that make
Party A can't pay in time, Party A will delay the payment. The delayed
period is the latest payment 6 months 12 months from the date when Party A
knows it can't pay on time and it will not be liable for having not made
payment on time.
8.2.10 Where Party B changes its company name, it shall inform Party A timely
(through the SP service system or in other proper manners). All the payment
that Party A shall make to Party B after the change of company name or
Party B shall be paid to the bank account after the change of Party B's
company name, regardless whether the charge happened before or after the
change of Party B's name. Where Party A can't pay because Party B didn't
properly finish the name change procedure, 8.2.9 of this Agreement shall be
applied.
8.2.11 Where Party B terminates this Agreement for applying the withdrawal
mechanism of this Agreement or other reasons prescribed in this Agreement,
the parties shall account the information service charge before the
termination. Accounting means, period and process as well as the agreements
on taking out information service charge or liquidated damages for contract
breach in the withdrawal mechanism shall be applied in the accounting as
well as its period and process.
8.3 CHARGE AGENCY
8.3.1 Information service charge are calculated and collected at Party A's
agency uniformly. Party B shall not collect information service charge from
subscribers. Party A shall calculate the communication charges and collect
them from subscribers or Party B.
8.3.2 Party A shall review all the charge agency items and general contents
before it collects information service charge at Party B's agency. Party B
shall cooperate with Party A actively in the review. All that need to be
reviewed is: whether the contents provided by Party B is in breach with the
provisions of article 57 and 58 of the Telecom Regulation of P.R.C as well
as other related laws, regulations and policies.
8.3.3 Party B shall provide relevant materials that prove the subscriber
knowingly and voluntarily use the service before Party B collects
information service charge from subscribers at agency. The charges shall be
calculated from the time the subscriber starts to use (except the monthly
general payment). The parties shall preserve the records that the
subscriber customizes and uses the service for over
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5 months.
8.3.4 Party A shall make reminding statements like "charge agency" and the sum
as to the charges collected at agency when it gives the subscriber the xxxx
document. Party A shall provide reasonable and effective means and ways for
subscribers to enquire the name of Party B who has Party A's agency, the
name of the service that has charge agency and the detailed sums. The
parties shall provide free charge agency list to subscribers at their
requirement and shall not charge it from the other party.
8.3.5 Where the subscriber has objection to the information service charge and
refuses to pay, Party A shall collect the other charges without objection
and inform Party B about the situation timely when it is unable to prove
there's no error in the charge on the spot. Party B shall not only pay the
actual communication charge arising from using Party A's communication
network, but also shall have the information service charge that the
subscriber has objection to from the share it should get. Party B shall be
responsible for settling the dispute with the subscriber after that. Where
the dispute is settled, Party B shall inform the subscriber to pay this
part of information service charge to Party A and Party A shall share the
amount of money with Party B according to their proportion in the next
accounting period. Where it can't be settled, Party B shall not make claim
on the share of this part of information service charge to Party A.
8.3.6 Where the pre-pay subscriber has objection to the charge agency and the
parties fail to prove there's no error in the charge within 15 days, Party
B shall first return the charge to the subscriber provisionally and take
the sum out of the share proportion that Party B should get in the next
accounting period. Party B shall be responsible for settling the dispute
with the subscriber and article 8.3.5 of this chapter shall be applied.
8.3.7 The parties shall not stop or terminate other services except the service
that the subscriber has objection to during the dispute settlement course.
CHAPTER 9 WITHDRAWAL MECHANISM AND CONTRACT BREACH SETTLEMENT
9.1 The parties agree to cooperatively investigate the tests, development and
contract breaches of the mobile value-added service and apply according to
the investigation results the corresponding withdrawal mechanisms according
to the investigation results, i.e. cooperation conditions modification,
termination of the cooperation of an item or service, or even the
termination of this Agreement.
9.2 The basing on service test withdrawal mechanism is that Party B that
applies to run the service but has failed to pass the tests Party A
requires for 3 times for reasons attributable to Party B since the
beginning of the test period terminates the service voluntarily. The
service category appendix terminates automatically where there's no other
service under the same service category as the service having passed the
tests or is undergoing the tests. Party A will not take Party B's
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application of the service within half a year.
9.3 The basing on service development withdrawal mechanism
9.3.1 Party A will make service ranking once every month on the items of a
mobile value-added service category (an item that firstly provides new
service is excluded from the ranking for three full charging period after
the start of the new service ). The quarter ranking is made according to
the total grades of the three rankings in the quarter and the service is
withdrawn according to the ranking. The withdrawal process is: rank the
services of all items in the N th quarter at the first month of the (N+1)
th quarter, withdrawal mechanism will be applied to the last 5 services in
the service ranking of each quarter. i.e. Party A will recall the service
at 24:00:00 of the last day of the last month of the (N+1) th quarter and
will not take Party B's application for the service under this item within
half a year.
9.3.2 Party A assesses the mobile value-added service category (that has passed
the service support period) quarterly according to the service ranking and
the fulfillment of service target. The withdrawal process is: assess all
the CP/SPs of the N th quarter that have passed the service support period
of the service at the first month of the (N+1) th quarter. The withdrawal
mechanism shall be applied to CP/SPs who rank the last 10% or who haven't
reached the target that the parties agreed on, i.e. Party A will terminate
its cooperation with the CP/SP on this service at 24:00:00of the last day
of the last month of the (N+1) th quarter and will not take Party B's
cooperation application for this service within half a year.
9.3.3 The primary standard of ranking or assessment is the information service
income and other indexes like service sale may also be referred. The
standard of ranking or assessment shall be the information service income,
unless it is expressly agreed by the parties in the service appendix.
9.4 The basing on contract breach withdrawal mechanism The basing on contract
breach withdrawal mechanism is the mechanism where the parties adjust their
rights and obligations under this Agreement or terminate this Agreement
when Party B is in breach of this Agreement, service appendix or the
provisions of Party A's service management regulation, or there's flaw in
the service under this Agreement it provides to subscribers (hereinafter
referred to as "breach"). Party A is entitled to terminate this Agreement
or the service appendix without being liable for contract breach or
pre-terminating the Agreement unilaterally when the basing on contract
breach withdrawal mechanism is applied.
9.4.2 The parties divide the breach of this Agreement into three categories of
A, B and C according to the severity (Appendix 1 the text of this Agreement
provides the division of breach) with each category has its own settlement.
The parties may make special agreement in service appendixes on the breach
according to the features of services.
9.4.3 Breach settlement
(1) Settlement of A breach: 30 days form the date that Party A sends the
breach settlement notice is the service amendment period when Party A
xxxxxxx the breaching service and suspends to take Party B's application
for new services. When the amendment period is over, shielding shall be
lifted and new service
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applications shall be taken if the amendment is successful. While if it
isn't, the breach service shall be recalled and Party B shall continue the
amendment until it succeeds and Party A resumes taking its new service
applications; the double amount of the total amount information service
charge that comes from the breach service shall be taken out to compensate
the subscribers double; 10% of the total amount of the information charge
of the service (including the information service charge that comes from
the breaching service) that happens in the breaching period during the
charge calculating period shall be taken as liquidated damages (take 5000
yuan when the 10% is less than 5000 yuan); notify subsidiaries of Party A
and announce it on SP service sysem.
(2) Settlement of B breach: Party A recalls the breach service; Party B has
an amendment period of at least 30 days since the date Party A sends the
breach settlement notice; Party A will suspend taking Party B's application
for new services during the amendment period and will resume the
application after the amendment is successful; the double amount of the
total amount information service charge that comes from the breach service
shall be taken out to compensate the subscribers double; 30% of the total
amount of the information charge of the service (including the information
service charge that comes from the breaching service) that happens in the
breaching period during the charge calculating period shall be taken as
liquidated damages (take 10,000 yuan when the 30% is less than 10,000
yuan); notify subsidiaries of Party A and announce it on SP service system.
(3) Settlement of C breach: cease the cooperation of the breaching service;
the double amount of the total amount information service charge that comes
from the breach service shall be taken out to compensate the subscribers
double; the total amount of the information charge of the service
(including the information service charge that comes from the breaching
service) that happens in the breaching period during the charge calculating
period shall be taken as liquidated damages (take 10,000 yuan when the 30%
is less than 10,000 yuan) Note: the taking out of double amount of the
total amount of information service charge and liquidated damages from the
breaching service: if the present accounting sum isn't enough for the
double amount of the total amount of information service charge and
liquidated damages from the breaching service, the rest shall be taken from
the subsequent accounting of Party A, the rest may be deduced by analogy,
until the total amount equals. If it is still not enough to the date this
Agreement is terminated, Party A is entitled to claim compensation.
9.5 Withdrawal mechanisms (except the basing on breach withdrawal mechanism)
are not applied in the service support period.
9.6 The termination of cooperation on one or several service(s)/item(s) as in
accordance with the withdrawal mechanisms prescribed in the Agreement text
or service appendix shall not affect the rights and obligations that Party
B has in other services/items that are operated simultaneously with the
terminated service and shall not affect Party B's applying for other
services, except where there's definite provisions.
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9.7 Where Party B is in serious breach or fundamental breach or that it
seriously disobeys the service quality standards, customer service
standards in one or several mobile value-added service(s), Party A may not
only apply the withdrawal mechanism to terminate its cooperation with Party
B in the service, but also terminate other service cooperation that Party B
doesn't breach, i.e. Party A may terminate other service appendixes or this
whole Agreement.
9.8 Party A shall notify Party B in proper ways (such as through notice on the
SP service System) if it applies the withdrawal mechanism and tell the
influence on the mutual cooperation due to this reason. Article 8.2.11
shall be applied to the unaccounted information service charge.
CHAPTER 10 MODIFICATION& TERMINATION
10.1 During the term of this Agreement, where Party A makes relevant management
regulations, quality standards and/or customer service standards on mobile
value-added services, the regulations and standards shall be observed as
part of this Agreement. As to provisions on the agreement issues except the
breach settlement, where the above regulations and/or standards are in
conflict with clauses in this Agreement, the regulations and/or standards
shall be valid, except where the parties considers that this Agreement
shall be applied or it's necessary to sign additional agreements on the
conflict after consultation.
10.2 Either party that wants to modify or amend this Agreement shall inform the
other party in writing 15 days in advance. The parties shall consult to
modify or amend this Agreement in writing.
10.3 During the term of this Agreement, neither of the parties shall cease or
terminate the implementation of this Agreement or unilaterally terminate
this Agreement without the other party's writing consent, except where
there's different express provision in this Agreement.
10.4 If one party's not performing the duties and obligations of this Agreement
or serious breach against the Agreement results in the other party's not
able to run or implement the mobile value-added service cooperation under
this Agreement, it shall be deemed as unilaterally terminate the Agreement
and the party that observes the Agreement shall be entitled to claim
economic losses from the breaching party and terminate the Agreement.
10.5 Where all the cooperation under this Agreement is terminated due to the
application of the withdrawal mechanism as prescribed in this Agreement,
this Agreement shall be terminated.
10.6 Agreement as to the influence of Party B's cooperation competence on the
modification or termination of this Agreement: this Agreement shall
terminate automatically if:
(1) assigns resources like numbers, junctions or digital websites without
Party A's ratification;
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(2) the service coverage region of it goes beyond the service region and
scope that the competence license prescribes;
(3) provides service content and category that requires competence license
without obtaining the competence license issued by the state authorities;
(4) provides fake copyright or competence;
(5) other acts like providing service or content without authorization that
is in breach of the requirement of relevant authorities or the agreements
between the parties.
10.5 During the term of this Agreement, Party B shall inform Party A and abide
by the provisions about withdrawal buffer period in this Agreement where
there's any event like division, combination, insolvency, dissolution or
liquidation that seriously affects the company's nature, competence and
capacity for civil conduct. Where Party B loses the competence or capacity
to run the mobile value-added service under this Agreement due to
dissolution, liquidation or insolvency, this Agreement shall terminate.
This Agreement shall also terminate where Party A divides or combines and
the company (or other entity) that succeeds the mobile value-added service
under this Agreement of Party B shall apply again to Party A for the
service and change timely the enterprise code and other information of
Party B in Party A's service system and SP service system.
10.8 Where Party B changes its name, it shall carry out change registration with
business administration authority and information industry authority to
change for effective subject competence certificate and business competence
certificate.
10.9 Where Party B assigns this Agreement to a third party, the third party
shall fully have all the rights and obligations that originally was Party
B's under this Agreement. Party A and Party B shall terminate this
Agreement and Party A signs new agreement with the third party.
CHAPTER 11 CONFIDENTIALITY
11.1 As used in this Agreement the term "confidential information" shall mean
any business secrets (including financial secret), technology secrets,
know-hows and (or) any other information and materials that should be kept
confidential that one party (hereinafter referred to as "receiving party")
obtains, knows from the other party (hereinafter referred to as "disclosing
party") or the above information and materials that can't be separated
which is created jointly by the parties in implementing this Agreement,
whatever the form or the carrier of the above information and materials,
whether the disclosing party indicates it is confidential orally or in
graphs or writing, etc.
11.2 Neither of the parties shall reveal, disclose or provide the confidential
information during the term of this Agreement and the following five years
after this Agreement terminates.
11.3 The parties shall take proper measures to properly keep the confidential
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information the other party provides and the caution it takes shall not be
less than the caution it takes for its own confidential information. The
parties can only use the confidential information for the aim or usage of
the cooperation under this Agreement.
11.4 The parties ensure that only the person on charge of or employees
associated with this service of the respective parties know the
confidential information. The above people shall be notified about the
confidential nature of the confidential information and the obligation they
shall undertake before they know the confidential information. There shall
be probable evidence that the above people indeed undertake the
confidential obligation under this Agreement.
11.5 The receiving party shall return to the disclosing party or destroy all the
documents or other materials that include confidential information upon the
disclosing party's instruction when necessary.
11.6 The above limitation clause doesn't apply to the following situations: A.
the confidential has been owned by the receiving party legally prior to or
at the time when this Agreement is signed; B. the confidential information
has been in public domain or publicly known before it is notified to the
receiving party; C. the receiving party obtains the confidential
information form a third party that doesn't have the obligating of holding
in confidence or non-revealing; D. the confidential information has been
publicly known or maybe obtained from public domain through no breach of
this Agreement; E. the receiving party or its affiliates or subsidiaries
developed independently the confidential information and has never obtained
interest from the information obtained by the disclosing party or its
affiliates or subsidiaries. F. the receiving party discloses the
confidential information pursuant to the requirement (oral question,
enquiry, material or document requirement, summons, civil or criminal
investigation procedure or other procedures) of court or other legal or
administrative agency and that the receiving party has informed and made
necessary explanation to the disclosing party.
11.4 The partied shall keep confidence the content of this Agreement.
CHAPTER 12 OTHER LIABILITIES FOR CONTRACT BREACH
12.1 The parties shall observe the provisions in this Agreement. It shall be
deemed breach of contract where either of the party doesn't perform its
obligation, commitment or promise, or breach its statement in this
Agreement and cause damage to the other party's interest or make the
cooperation service impossible to continue.
12.2 Where the breach of one party causes negative social influence or economic
losses to the other party, the party that observes the agreement shall be
entitled to hold the breaching party liable for breach of contract and ask
it to eliminate the
23
influence and claim damages, and terminate the Agreement.
12.3 The parties shall also be liable for breaches resulted from applying
withdrawal mechanism and/or service management regulations besides the
contract breach liabilities agreed in this chapter.
CHAPTER 13 FORCE MAJEURE
13.1 Force majeure means circumstances that are unforeseeable, unavoidable and
insurmountable to the parties of this Agreement or that though foreseeable
but would unavoidably impair either of the parties to perform fully or
partly this Agreement. The circumstances include only natural disasters
like earthquake, landslide, sink, flood, typhoon and abnormal astronomical
phenomenon as well as fire, explosion, accidents, war, terrorist events,
wide range epidemic plague, undermining, hacker intrusion, network collapse
or any other similar or different accidental events.
13.2 Where one party is unable to perform the obligations due to force majeure,
it shall not be liable for the loss of the other party.
13.3 The party that suffers force majeure shall instantly notify the other party
about the event and shall submit within 15 days effective certifying
documents from government agencies about the detail of the event and the
reason that it is unable to perform or fully perform the agreement or it
needs to delay the performance. The parties consult to decide whether to
continue to perform this Agreement or terminate it in light of the
influence of the event on the performance of the Agreement.
CHAPTER 14 LAW APPLICATION AND DISPUTE SETTLEMENT
14.1 China laws shall apply to the conclusion, effectiveness, performance and
interpretation of this Agreement.
14.2 The parties hall consult to solve any disputes arising from or relevant to
this Agreement friendly. In case no settlement can be reached through
consultations, the disputes shall be submitted to Beijing Arbitration
Committee for arbitration in accordance with its rules of procedure. The
arbitral award is final and binding upon both parties. Chinese shall be
used in the arbitration.
CHAPTER 15 OTHERS
15.1 Assignability. With Party A's consent, Party B may assign all or part of
the rights and obligations under this Agreement to a third party with full
capacity
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and/or competence after consultation with Party A. The assignment of Party
B shall comply with the provisions about competence requirement, charging,
accounting and termination of the agreement in this Agreement.
15.2 This Agreement only binds on the parties that sign it. No clauses of this
Article shall be construed as: (a) there's partnership or other
relationship that may result in joint liability between the parties; (b)
one party is the other party's agent (except with the previous writing
consent of the other party); (c) authorize one party to get the other party
into charges or obligations of any other forms (except with the previous
writing consent of the other party).
15.3 It does not constitute the waiver of right if does not exercise its right
or delays exercising the right under this Agreement. If the party has
exercised or partly exercised the right, it does not prejudice it from
exercising the right again in the future.
15.4 The invalidity of one clause doesn't affect the validity of other clauses
under this Agreement.
15.5 This agreement comes into force the date the authorized representatives of
the parties sign or seal it. The term of this Agreement lasts to March
31st,, 2006, except where the parties agree to pre-terminate it. Party A
may examine Party B's performance competence and qualification before this
Agreement dues and this Agreement shall continue automatically for one more
year if Party A considers Party B is capable of performing the agreement
and its competence meets the requirement for continuing performing the
agreement.
15.6 Signing the service appendixes. The appendix comes into force and become
part of this Agreement upon the value-added department of Party A stamping
its seal and the signature of the legal representative (of effectively
authorized representative) of Party B and the stamping of the official seal
of Party B. The appendix shall terminate upon the earlier date when the
agreement text terminates or the termination conditions prescribed in the
agreement text and/or the service appendix satisfied.
15.7 There are two originals of this Agreement and the appendix with each party
holds one. The originals have equal legal force.
Party A: China Unicom Co., Ltd.
Authorized representative: Sealed
Date:
-------------------------------
Party B: Shanghai Unilink Computer Co., Ltd.
Authorized representative: Sealed
Date:
-------------------------------
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