Contract Registration Number:
Exhibit 4.76
CMBJ-2009-00000144-SW-00000006
Contract
Registration Number:
2
|
0
|
0
|
9
|
1
|
1
|
0
|
0
|
3
|
2
|
0
|
0
|
3
|
2
|
0
|
5
|
Contract
for Technical Services
(including
technical training and technical intermediary)
Project
Name: Game Business SP
Cooperation Agreement 09DX026
Trustor: China
Mobile Group Beijing Co. Ltd.
(Party
A)
Trustee: Beijing AirInbox
Information Technologies Co. Ltd.
(Party
B)
Place of
Signing: Haidian District, Beijing
Date of
Signing: April 1, 2008
Valid
Term: April 1, 2008-March 31, 2009
CMBJ-2009-00000144-SW-00000006
Game
Business SP Cooperation Agreement
Party
A: China Mobile Group Beijing Co. Ltd.
|
Party
B: Beijing AirInbox Information Technologies Co. Ltd
|
|
Address:
Xx.0, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxx
|
Address:
00X, Xxxxxx Xxxxx, Xx.000 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx
|
|
Postal
Code: 100007
|
Postal
Code: 100044
|
|
Tel.:
000-00000000
|
Tel.:
000-00000000
|
|
Fax:
000-00000000
|
Fax:
000-00000000
|
|
Deposit
Bank: Industrial and Commercial Bank of China, Beijing Branch, Xxxxx’an
Sub-branch
|
Deposit
Bank: Industrial and Commercial Bank of China, Capital Indoor Stadium
Sub-branch
|
|
Bank
Account: 054018-32
|
Bank
Account: 0200053719200031688
|
|
Customer
Service Tel.: 000-00000000
|
Upon
friendly negotiation based on the principles of equality, mutual benefit
and double-win, the parties hereto have reached a consensus and decided to
establish cooperative relationship between them to provide game services
to users of China Mobile. To define the respective rights and obligations
of the parties during the term of cooperation contemplated hereunder, the
parties have hereby entered into this
Agreement.
|
Article
1.
|
Content
of Cooperative Project between the
Parties
|
1.
|
Party
A, as game business platform provider, will provide business access and
platform support services to Party B for
value.
|
2.
|
Party
B will provide users of Party A via Party A’s game business platform with
information services and application services (hereinafter referred to as
“Game Business”). Party B shall ensure to provide information contents and
service support of good
quality.
|
3.
|
Party
A will use its billing system and business support system to provide Party
B with business billing and collecting services for
value.
|
Article
2
|
Rights
and Obligations of Party A
|
1.
|
Party
A may verify such materials relating to normal business operation as
necessary to enable Party B to provide information services hereunder,
including telecommunications and information service business operational
license, telecom value-added service business operational license,
business license, credit standing certificate, source of information and
bank account.
|
CMBJ-2009-00000144-SW-00000006
2.
|
Party
A may verify any of Party B’s services relating to this Agreement. Party A
is entitled to refuse to publish any content in the information as
provided by Party B which is incompatible with national laws, regulations
and policies, or goes counter to public order and good social customs, or
which Party A thinks unfit, and if such information as provided by Party B
causes any economic loss to Party A or undesirable impact on the goodwill
of Party A, Party A shall have the right to claim compensation against
Party B. Party A will give express reply to any business application
submitted by Party B within 10 working days after Party B provides
complete materials.
|
3.
|
Party
A may, as needed, require Party B to provide relevant materials in
relation to this Agreement further evidencing Party B’s ownership or right
of use and intellectual property
right.
|
4.
|
Party
A has the right to formulate administrative measures, appraisal terms and
customer service standards and documents in respect of game business (all
as appendix to this Agreement), which shall be observed and implemented by
Party B. Party A will conduct appraisal of Party B in accordance with
relevant provisions aforesaid, and if Party B fails such appraisal, Party
A may cease the cooperation business with Party B until termination of
this Agreement.
|
5.
|
Party
A will provide customer service numbers as call service access numbers for
customer service complaints and enquiries. Party A’s customer service
center will serve as the final confirmer and distributor of customer
service questions of game business, Party B’s customer service personnel
or customer service system must assist Party A to analyze and handle
relevant business complaints and enquiries of customers. Party A has the
right to transfer such various user enquiries as arising from this
business and not attributable to any network communication problem on the
part of Party A to Party B for handling, and Party B shall settle such
customer complaints in good faith and be responsible therefor. Party A is
responsible for user enquiries and complaints arising in respect of Party
A’s network communication
problems.
|
6.
|
Party
A may, according to the status of business progress, promote and advertise
game business via communications media so as to attract users. Party A
shall provide Party B with related interface technical standards and
technical support to ensure that Party B can provide applications
smoothly.
|
7.
|
Party
A is responsible for daily maintenance of the game platform, and for
handling technical failures due to Party A in order to ensure the normal
operation of application
service.
|
8.
|
Party
A will provide billing service for Party B’s game business, and the
results thereof shall be subject to Party A’s data; where Party B lodges
an objection to Party A’s results, it may require Party A to do
reconciliation.
|
9.
|
Party
A shall be responsible for such customer data management as the
registration, login, certification and authentication of users, and may
send back to Party B relevant data in certain form. As regards networking
application, Party A’s game business platform will link to Party B’s
content service system, and data in the game business platform will be
taken as the basis of final confirmation of the use by users of Party B’s
game business. Party A will count page views of Party B’s application game
business, and provide statistical results to Party B in the appropriate
form.
|
CMBJ-2009-00000144-SW-00000006
10.
|
Party
A may adjust the arrangement order of the UI design and game business on
the homepage of the game based on the status of business
progress.
|
11.
|
The
parties hereto may conduct such work as marketing communication and
customer publicity in joint efforts. Party A may require Party B to mark
(China Mobile Mobile Phone Game)” brand, subject to passage upon prior
verification of Party A. Where Party B’s publicity and advertising
involves Party A’s corporate name and other brand standard, it shall
obtain prior consent of Party A and pass Party A’s
verification.
|
Article
3
|
Rights
and Obligations of Party B
|
1.
|
Party
B must provide Party A with such materials relating to normal business
operation as necessary to enable Party B to provide information services
hereunder, including telecommunications and information service business
operational license, telecom value-added service business operational
license, business license, credit standing certificate, source of
information and bank account, and ensure that the rates of information
services provided by it comply with relevant provisions of price
department of the Central
Government.
|
2.
|
Party
B must observe national laws, regulations and policies relating to telecom
and internet information service, and ensure that the content of
information provided by it will not violate relevant national laws,
regulations and policies, will not impair the legitimate rights and
interests of any third party and social public interests, and that it will
not transmit illegal information via Party A’s system, otherwise Party B
will be held liable for all consequences so caused. Party B must filter
the content of information provided by users (such as chat messages) in
order to preclude any and all unhealthy and illegal information. Any and
all complaints so incurred shall be handled by Party B with all economic
and legal liabilities. Party A may require Party B to compensate it for
any and all economic loss and damage to goodwill as sustained by Party
A.
|
3.
|
Party
B must ensure the legality of game business provided by it, and that it
has obtained all government approvals, license to manufacture and/or use
and/or authorization, and that all contents concerned have legitimate and
non-infringing sources, and are free of such problems as usurping or using
without the consent of the copyright owner which infringes upon any
intellectual property right including copyright or other legitimate rights
and interests of any third party. When Party A incurs any claims,
litigation or recourse by any third party in respect of infringement,
Party A is entitled to interim suspension of such business as in question,
and transfer the dispute to Party B for handling, and Party B must
promptly and directly contact the complainant or recourser for settlement,
and take responsibility for all legal and economic liabilities. Party A
may require Party B to compensate it for any and all economic loss and
damage to goodwill as sustained by Party
A.
|
CMBJ-2009-00000144-SW-00000006
4.
|
During
the term of cooperation, without prior written consent of Party A, Party B
may not make use of various channels so that Party A’s mobile data
application business in various business respects interconnects with or
interconnects in disguised form with any third
party.
|
5.
|
Party
B shall give active coordination to the interface testing work of Party A
so as to provide services in accordance with the business standards and
interface technical standards required by Party
A.
|
6.
|
Party
B undertakes that, upon effective date of this Agreement, game chargeable
services provided by Party B will not be available at its owned website or
any other sites; otherwise, Party A will be entitled to unilaterally
terminate this Agreement and terminate settlement with Party
B.
|
7.
|
Party
B must provide all materials in respect of the business provided by it in
clear and unambiguous manner, and take responsibility for all economic and
legal liabilities in respect
thereof.
|
8.
|
Party
B shall ensure to log in XXXX system to check out various notices and
announcements issued by Party A and process them timely. All losses
arising from Party B’s failure to check the information publicized in the
XXXX system shall be borne by Party
B.
|
9.
|
Party
B may determine whether to charge for the business provided and the
charging standards under the guidance of Party
A.
|
10.
|
Party
B shall observe and implement Party A’s administrative measures, customer
service standards and documents in connection with “Monternet”, and accept
the inspection and supervision of Party A. In the event that Party B
withdraws from Monternet service (including compulsory withdrawal in Party
A’s survival of the fittest appraisal) for any reason, Party B shall be
obliged to provide one month of withdrawal cushion period, during which
Party B shall continue to provide services to users, and make an statement
of cessation of services on its website (WWW/WAP) or via other
channels.
|
11.
|
Party
B must establish effective and unblocked complaint channel, and deal with
and resolve various user enquiries and complaints arising from this
business which are not attributable to any network communication problems.
Where Party A receives any customer complaint in relation to aforesaid
information content, Party B shall give preliminary reply to customer
service department of Party A within two hours, identify the reasons
within one working day, and prevent the dissemination of illegal
information. With respect to any customer complaint which both parties
fail to give reasonable explanation, Party B as the final resolver shall
take responsibility to deal with such customer complaint in good
faith.
|
12.
|
Where
in respect of information service fees to be paid by Party B, any
customers refuse to pay such information fees or Party A refund them to
customers in advance due to Party B’s service quality problems or the
rates exceeding the charging standard as prescribed by relevant price
department, Party A will deduct such amounts from the information fees to
Party B, if such information fees are insufficient to set off such
amounts, Party B shall make payment to Party A in respect of the
insufficient part.
|
CMBJ-2009-00000144-SW-00000006
13.
|
Party
B shall conduct marketing promotion and customer publicity work in an
active manner. Party B’s publicity and advertising contents shall mark
(China Mobile Mobile Phone Game)” brand according to the request of Party
A.
|
14.
|
Party
B shall ensure the exclusivity of the cooperation with Party A, that is,
as of the effective date of this Agreement, Party B undertakes not to
conduct with any third party any business identical or similar to that
under cooperation with Party A. Otherwise, Party A is at liberty to cease
business cooperation hereunder between the parties and to terminate this
Agreement.
|
15.
|
Party
B warrants that it has legal title to any cooperation product it provides
to Party A during the process of cooperation and other related contents,
or has the legal authority to grant Party A the license to use the same
pursuant to this Agreement, and that the cooperation product and other
related contents will not infringe upon the legitimate rights and
interests of any third party (including but not limited to copyright,
right of reputation and right of portrait), be free from any copyright
dispute, will not violate any laws and regulations, and may authorize
Party A to disseminate them via information
network.
|
16.
|
Where
a third party institutes an administrative complaint, brings a suit or
submits to arbitration purporting that Party B has no right to dispose of
any cooperation product or other related contents or its authorization is
defective, Party A may take the following remedial measures in a combined
or selective form, as the case may be: (1) terminates the distribution of
distributive revenues hereunder with Party B within the limits of the
amount claimed by such third party; (2) requests Party B to resolve it at
its own costs, and Party B shall, at the request of Party A and at its own
costs, submit to dispute resolution authority for resolution with Party
B’s participation as a third party; (3) terminates this Agreement in whole
or in part. If such measures can not prevent the occurrence of losses to
Party A, then at the request of Party A, Party B shall timely and fully
indemnify and hold Party A harmless against all losses so sustained by
Party A (including but not limited to any amounts pre-paid by Party A to
Party B and/or all economic losses caused during business interruption and
reasonable attorney’s fee, litigation or arbitration fee paid by Party A
for the resolution of
disputes).
|
17.
|
Provided
that Party B does not have the qualifications necessary to enable it to
operate internet business, Party B may not, during the cooperation as
contemplated hereunder, provide business use channels (including but not
limited to business subscription and business on demand) to users via the
internet. Concurrently, Party B may not conduct cooperation business
publicity on any website without a telecom and information service
business operational license. Party B shall be held liable for all
liabilities if Party B violates any of the foregoing provisions during the
cooperation hereunder.
|
CMBJ-2009-00000144-SW-00000006
Article
4
|
Maintenance
Sections and Responsibilities of the
Parties
|
Maintenance
responsibilities and sections of the parties hereto are divided based on the
connection points of equipments of the parties, so that maintenance
responsibility in respect of the connection point on Party A’s side is borne by
Party A, and maintenance responsibility in respect of the connection point on
Party B’s side is borne by Party B. The parties shall perform their respective
duties so as to ensure the normal progress of business.
Article
5
|
Rewards
and Punishments
|
1.
|
In
the event of any breach by Party B, Party A may require Party B to correct
immediately, rectify and improve within a specified period of time, make
public apology on media or to customers, suspend the examination and
approval of Party B’s new business, postpone settlement, refuse settlement
or charge a penalty or any combination of the foregoing. If Party B’s
breach is extraordinarily serious (such as customer complaint at the level
of the Ministry of Information Industry, media exposure and initiation of
proceedings), Party A has the right to terminate this Agreement
forthwith.
|
2.
|
Where
Party B effectively implements relevant contents set forth herein, and the
annual average customer complaint rate in respect of Party B’s services is
low, Party A will, under the same conditions, give priority to renewing
this Cooperation Agreement with Party
B.
|
3.
|
Party
B may neither send any message to a customer with game business
information fee in arrears, nor permit such customer to demand information
for other customers. Where Party B still sends messages to a customer with
information fee in arrears or permit such customer to use game business
when Party B is aware of such arrearage, Party A may require Party B to
compensate it for any and all economic losses as caused by the arrearage
of customers, and may simultaneously terminate this
Agreement.
|
Article
6
|
Billing
and Settlement
|
6.1. Information
fees arising from the use by users of the application services or information
services provided by Party B shall be owned by Party B, and Party A will provide
such services as billing and collecting information service fees for and on
behalf of Party B. The billing system of Party A shall make payments of the
total due information fees for the current game business.
Specific
cooperation business models for the parties are as follows (four types
altogether):
1.
|
If
Party B undertakes the promotion of its own application services or
information services, then Party A will pay 85% of the total information
fees receivable to Party B, with the remaining 15% as information fees for
Party A.
|
2.
|
If
Party B’s business is selected into competitive business packages of Party
A, then Party A will pay 50% of the total information fees receivable to
Party B, with the remaining 50% as information fees for Party
A.
|
3.
|
If
Party B’s business is selected into the bank of competitive business as
promoted by Party A, then Party A will pay 40% of the total information
fees receivable to Party B, with 15% as information fees for Party A, and
the remaining 45% to be paid by Party A to the game business
promoter.
|
CMBJ-2009-00000144-SW-00000006
4.
|
If
Party B’s business is commercialized mobile phone online game business,
then Party A will pay 70% of the total information fees receivable to
Party B, with the remaining 30% as information fees for Party A (during
trial operation period of promotion of mobile phone online game, Party A
will pay 85% of the total information fees receivable to Party B, with the
remaining 15% as information fees for Party A. Party A will inform Party B
in the form of XXXX notice one month prior to the end of trial operation
period).
|
The
foregoing business models are based on the business codes in the billing system
of Party A.
6.2
|
The
basis of billing and settlement are the tickets of successful billing
gathered in the billing system of Party A. Business billed message by
message is based on successful receipt by users, and business of monthly
payment billing is based on user's actual
subscription.
|
6.3
|
The
information fees settled between the parties will not contain the items as
follows:
|
1) Logout
user fee (including pre-logout);
2)
Out-of-service user fee;
3)
Inactive user fee;
4) Fees
for single message with excessive average information fee;
and
5) Refund
fees (double refund).
6.4
|
Party
A shall provide statement of accounts of the preceding month’ billing via
XXXX system to Party B prior to the 15th
day of each month, whereby the parties shall check the amounts of
information fees of the preceding month from the 1st
day to the last day of the preceding month; Party B shall send back the
results of check of accounts within 10 days, where Party B fails to
provide feedbacks timely, the accounts will be deemed as
correct.
|
6.5
|
Notwithstanding
any challenge on the statement accounts of billing of the preceding month,
Party B shall invoice Party A prior to the 18th
day of each month. Upon receipt of a valid invoice issued by Party B
before the 18th
day of the month (subject to Party B’s delivery to the place designated by
Party A), Party A shall pay to Party B the information fees to be settled
in the amount in accordance with the invoice amount as checked to be
compatible with the statement of accounts; that is, regardless of whether
the parties can complete the check of accounts as scheduled, settlement
shall be done as per the amounts of the statement of accounts, with any
difference to be settled in the next payment or
later.
|
CMBJ-2009-00000144-SW-00000006
6.6
|
In
the event that upon Party B’s receipt of a statement of accounts prior to
the 15th
day of a month and after charging off such fees as logout user fee
(including pre-logout), out-of-service user fee, inactive user fee, fees
for single message with excessive average information fee and refund fees,
if prior to the 25th
day of the month, the difference between the fees of Gotone users and
subscription relationship reaches 6% or above, Party B may propose a
request for check of accounts; if the difference between the fees of
Easyown and Mzone users and subscription relationship reaches over the
billing success rate of the month, Party B may propose a request for check
of accounts, otherwise data of Party A shall prevail. In the case of any
discrepancy, the parties shall determine the reasons, and conduct mutual
negotiation to resolve it in a timely manner and in the light of the
actual circumstances.
|
Article
7
|
Confidentiality
|
1.
|
The
parties hereto shall keep confidential all user data received through this
business.
|
2.
|
During
the cooperation between the parties, proprietary information received by
one party from the other party (“disclosing party”) which is developed,
created, discovered, known by such disclosing party, or transferred to
such disclosing party and of commercial value to such disclosing party,
including but not limited to any trade secret, computer program, design
technique, ideas, know-how, process, data, business and product
development plan, customer information or other information relating to
such disclosing party’ business, or confidential information received by
such disclosing party from any other parties, shall be owned by the
disclosing party of such information and, without prior consent in writing
by the disclosing party, the other party shall keep all proprietary
information confidential, and may not use or disclose to any individual or
entity any of such proprietary information, except for the purpose of
performing the obligations
hereunder.
|
3.
|
The
parties have the obligation to keep this cooperation and the specific
contents of this Agreement confidential. Without prior written consent of
a party, the other party may not disclose the cooperation between the
parties and any specific contents of this Agreement to any third
party.
|
4.
|
This
Confidentiality term shall survive the termination of this Agreement and
shall be in full force and effect
permanently.
|
Article
8
|
Liability
for Breach of Contract
|
1.
|
In
the case of impossible performance of this Agreement due to either party’s
breach hereof, the other party has the right to terminate this
Agreement;
|
2.
|
In
case one party’s breach of this Agreement causes the unfavorable social
impact on or economic losses to the other party, the other party is
entitled to subject the default party to liabilities, requiring it to
eliminate the impact and/or provide corresponding economic compensation,
and simultaneously has the right to terminate this
Agreement.
|
CMBJ-2009-00000144-SW-00000006
Article
9
|
Force
Majeure
|
Where a
party hereto sustains any economic loss or this Agreement is rendered impossible
to be performed in part or in whole due to any event of force majeure that is
unpredictable, insurmountable or unavoidable, the party affected by such event
of force majeure may be excused from any liability for any loss of the other
party, provided that the affected party shall promptly notify the other party of
the circumstance of such event, and provide valid certificates issued by
relevant governmental departments stating the details of the event and the
reasons for the impossible performance of this Agreement in part or in whole or
for the delayed performance of this Agreement within 15 days. The parties shall
by friendly negotiation determine whether to continue the performance or
terminate this Agreement in the light of the extent of impact of such event on
the performance of this Agreement.
No.5,
Tengda Tax Bureau, Haidian District, Beijing
|
Special
Seal for Stamp Duty Paid
|
Tax Amount: ¥5338.84
|
Number of Duty Paid
Voucher: 0849165
|
Date:
January 13, 2010
|
Article
10
|
Change
or Amendment of Agreement
|
1.
|
During
the cooperation contemplated hereunder, any relevant business
administrative provisions and relevant customer service administrative
provisions as formulated by Party A for Monternet shall be attached hereto
as supplementary appendices. In the event of any discrepancy between the
terms of this Agreement and such administrative provisions, the latter
shall take precedence. It is agreed that the parties may renegotiate any
conflicting terms and execute a supplementary
agreement.
|
2.
|
Either
party who wishes to change or rescind this Agreement must send a notice to
the other party in writing 15 days in advance, and such change or
rescission may only becomes effective upon mutual consent between the
parties. Any dispute arising from the termination of this Agreement shall
be resolved by consultation between the
parties.
|
3.
|
Any
matter uncovered hereunder may be agreed on between the parties and
supplemented hereto in
writing.
|
4.
|
This
Agreement is governed by Chinese law. Any dispute arising in respect
hereof shall be first resolved by friendly consultation between the
parties, if such consultation is unsuccessful, either party may turn to
Beijing Arbitration Commission for arbitration. The arbitral award shall
be final and binding on both
parties.
|
CMBJ-2009-00000144-SW-00000006
5.
|
This
Agreement shall be effective for a term commencing from April 1, 2008 and
ending on March 31, 2009. In the absence of any request of either party in
writing 30 days prior to the expiration of this Agreement for the
termination hereof, this Agreement shall be automatically extended for a
term of six months upon its expiration and so on and so forth, the times
of such extension are unlimited, and each term of extension is six months.
Where a party has an objection, it shall notify the other party in writing
30 days prior to the expiration hereof or 30 days prior to the expiration
of the relevant extension, in which case, this Agreement terminates at the
expiration. Upon termination of this Agreement, the parties shall deal
with any and all consequential matters in good faith. This Agreement shall
not be invalidated until and unless the parties have fully performed all
obligations hereunder and all payments and claims between the parties have
been settled.
|
6.
|
This
Agreement is made in quadruplicate, with Party A holding three copies
thereof, and Party B holding the remaining copy thereof, and all such
copies are equally
authentic.
|
7.
|
A
breach of this Agreement is constituted when a party directly or
indirectly contravenes any provision hereof, or refuses to assume or fails
to timely and fully assume its obligations hereunder, wherein the
non-breaching party is entitled to send a notice in writing to the former
party requiring it to remedy such breach and take sufficient, effective
and timely steps to eliminate the consequences of such breach, and
compensate the non-breaching party for any and all losses incurred due to
the breach of the breaching party. Where the breaching party fails to
remedy its breach within 10 days of receipt of above-said notice from the
non-breaching party in respect of such breach, the non-breaching party
shall be entitled to unilaterally terminate this Agreement in advance by a
notice via XXXX system (it is deemed as duly served when such notice is
sent out via XXXX) or a notice in writing, and subject the breaching party
to default liabilities.
|
Party
A: China Mobile Group Beijing Co., Ltd.
|
Party
B: Beijing AirInbox Information Technologies
|
|
Authorized
Representative: Xx Xxx
|
Co.,
Ltd.
|
|
Dated:
[DD]
[MM]
[YY]
China
Mobile Group Beijing Co., Ltd. Beijing AirInbox Information
Technologies Co., Ltd.
|
Authorized
Representative:
Dated:
[DD]
[MM]
[YY]
Stamp
for Contract Stamp for
Contract
|
CMBJ-2009-00000144-SW-00000006
Appendix:Non-corruption
Agreement
This
Agreement is entered into for the purpose of jointly maintaining the fair
competition order of commercial activities, and ensuring good faith,
non-corruption, high efficiency and mutual benefit in the business transactions
between the parties:
1、
|
During
the cooperation contemplated hereunder, the parties shall conscientiously
observe national laws and regulations and carry out commercial transaction
activities in accordance with the Anti-unfair Competition Law of
the People’s Republic of China, the Tender and Bidding Law of the
People’s Republic of China, the Interim Provisions on
Prohibiting Commercial Bribery, and other relevant laws and
provisions.
|
2、
|
Fairness,
impartiality and openness shall be observed in the confirmation of bid
invitation qualification, bid submission, bid opening and evaluation of
bids, and secret practices shall be prohibited. Party A’s supervision
department or its authorized personnel shall supervise the bidding
projects, seriously investigate, impartially handle and give timely reply
to Party B’s complaints and reports in relation to the
bidding.
|
3、
|
Relevant
working personnel of the parties and their relatives may not accept cash,
things of value and securities given by the other party, may not demand or
accept financial aid from the other party for housing construction and
improvement, weddings and funerals and going abroad, may not introduce
relatives or friends to carry on any business activities relating to the
cooperation between the parties, may not accept kickbacks, may not attend
expensive recreational, entertainment, physical exercise or travelling
activities affecting impartial enforcement of public affairs, or reimburse
any costs which shall be paid by
individuals.
|
4、
|
Relevant
working personnel of the parties may not conduct private negotiation or
reach secret agreement in respect of supply of materials, change of
quantity and resolution of quality problem of materials for the purpose of
seeking selfish benefits.
|
5、
|
Upon
undertaking of an engineering project (including engineering construction,
maintenance, supervision, design and systematic integration), such
engineering project may not be subcontracted in the case of any violation
or without express approval of Party
A.
|
6、
|
There
shall be no violation of commercial ethics, or disruption of normal
competition order, impairment of the images of the parties, bidding
collusion, disclosure of secrets of the parties, discrimination of fair
competition of other operators, no falsification or overestimation and
forged computation in budgets and final accounts, quotation in bidding as
well as quoting in business.
|
CMBJ-2009-00000144-SW-00000006
7、
|
In
the event of any violation of the foregoing terms or other commercial
ethics and market rules, where verified to be true, cooperation of such
project or similar projects will be ceased as per the seriousness of the
circumstances.
|
8、
|
A
party aware of any bribery acts or irregularities for favoritism, abuse of
power or serious dereliction of duty of any personnel of the other party,
the former party is obliged to report the case to the supervision or other
relevant department of the other
party.
|
9、
|
This
Agreement is an integral appendix to the main contract, wherefore shall be
put under paging seal together with the main
contract.
|
Reporting
Channel to Party A’s
|
Party
B's Reporting Channel:
|
Supervision
Department:
|
|
Tel.:
65546699-82576
|
Tel.:
88576000-6861
|
E-mail:xxxxx@xx.xxxxxxxxxxx.xxx
|
E-mail:
XXXX@xxxxxxxxx.xxx
|
Party A:
China Mobile Group Beijing Co., Ltd.
Party B:
Beijing AirInbox Information Technologies Co., Ltd.
Whereas:
Party A and Party B have agreed to conduct cooperation in respect of game business, as
regards confidential information of Party A as involved in the process of
cooperation between the parties, the parties agree as follows:
1.
|
For
the purposes of this Agreement, “Confidential Information” shall refer to
such information as received by Party B from Party A in the performance or
for the performance of the contract. Party A’s Confidential Information
includes but is not limited to: any point of view, discovery, invention,
formula, program, plan, diagram, model, sketch, norms, inventory of parts,
parameters, data, database, standards, ingredients, process,
installations, pictures, scheme, sample, equipment, equipment performance
report, pricing information, studies, idea, drawings, concept, any form of
software, flowchart, method of calculation, account, code, data of Party
A’s customers and other business and technical information and/or any
intellectual property right therein undisclosed by Party A, and any
derivative information drawn by Party B based on any of the preceding
documents, information and background
materials.
|
Confidential
Information shall not include such information which:
|
1)
|
is
publicly available upon disclosure by one party, or becomes publicly
available after disclosure by one party at no fault of the receiving party
or its employee, attorney, accountant, contractor, advisor or other
person;
|
|
2)
|
is
in the possession of the receiving party upon disclosure as evidenced by
any proof in writing, and such information is not directly or indirectly
from the disclosing party; or
|
|
3)
|
is
evidenced by written proof to be disclosed to the receiving party by a
third party which is under no confidential obligation and has the right to
disclose it.
|
2.
|
Party
B understands that all documents received by it shall remain property of
Party A, and Party A owns the intellectual property right in the documents
aforesaid. Party B acknowledges Party A's interests in the Confidential
Information hereunder and/or all related rights, and Party B shall keep
good custody of such information to the interests of Party
A.
|
3.
|
Party
B acknowledges and agrees that Party A’s disclosure and provision of the
Confidential Information as enumerated herein shall not be deemed to
transfer or grant to Party B any royalty or any other right. Party A’s
disclosure and provision of the Confidential Information as enumerated
herein may neither be deemed to grant to Party B any patent right, patent
application right, trademark right, copyright, trade secret or other
intellectual property right relating to Confidential Information; nor to
transfer or grant to Party B the right to use any trademark, patent or
technical know-how as licensed to Party A by a third
party.
|
4.
|
As
for any document received by Party B from Party A, Party B understands
that it has the right of provisional use only, and that it has no title,
intellectual property right or right of interpretation to the
same.
|
5.
|
Party
B undertakes to use the Confidential Information for the purpose of
cooperation with Party A, and not to use the same for any other
purpose.
|
6.
|
Without
prior written approval of Party A, Party B may not, in any form or manner,
disclose or divulge the Confidential Information and/or any part thereof
to any third party. Party B has the obligation to keep good custody of the
Confidential Information hereunder, and may not reproduce, reveal or lose
it. Party B may neither based on the Confidential Information give any
suggestion to any third party in respect of any issue. Subject to the
foregoing general requirements of confidentiality, Party B’s use of the
Confidential Information shall also meet the following
requirement:Party B shall comply
with the Administrative
Measures for Mobile Phone Game Business formulated by Party
A.
|
7.
|
Party
B undertakes to keep Party A’s Confidential Information in confidential,
to establish corresponding confidential system to ensure the performance
of confidential obligations stipulated hereunder, to provide
confidentiality training for working personnel within its organization, to
execute confidential agreements with relevant working personnel
(stipulating the liabilities for breach of confidential obligations), and
to investigate any divulging personnel for default
liabilities.
|
8.
|
Party
A agrees that Party B has the right to disclose to its employees or give
them access to the Confidential Information and/or any part thereof to the
extent that such employees are personnel as necessary to use the
Confidential Information during the cooperation between Party A and Party
B, provided always that Party B has obtained confidential undertakings
from such employees at least substantially identical with this Agreement
prior to any disclosure to or grant to such employees access to the
Confidential Information.
|
9.
|
Where
any of Party B’s employees, in violation of confidential undertakings,
fails to use the Confidential Information in accordance with this
Agreement or discloses the Confidential Information to a third party, or
gives any suggestion to a third party based on such Confidential
Information, Party B will be deemed to have violated this
Agreement.
|
10.
|
Where
Party B is required by relevant governmental authority or regulatory body
to disclose any Confidential Information, Party B may make disclosure to
the extent as required by such governmental authority or regulatory body
without being held liable for any liability hereunder, provided always
that Party B shall immediately notify Party A of the information to be
disclosed, so that Party A may take necessary protective measures, and
that such notification shall be made prior to the disclosure of such
information to the extent as possible, and Party B shall exert all
commercially reasonable efforts to ensure that such information to be
disclosed will receive confidential treatment from relevant governmental
authority or agency.
|
11.
|
Upon
any breach of this Agreement by Party B, it shall compensate Party A for
all losses so incurred by Party A, including but not limited to all
losses, damages, litigation fees, arbitration fees, reasonable attorney’s
fess, investigation fees and relevant legal
expenses.
|
12.
|
Party
A retains the right to take back or direct Party B to destroy any
Confidential Information as provided by Party A upon termination of
contract or when Party A deems necessary. When Party A requires Party B to
return the Confidential Information, Party B shall immediately return all
Confidential Information and tangible media
thereof.
|
13.
|
Any
dispute arising from the performance of this Agreement or in respect of
this Agreement shall be first resolved by friendly negotiation between the
parties, and if such negotiation is unsuccessful, the case shall be turned
to Beijing Arbitration Commission for arbitration in accordance with its
arbitration rules then in
effect.
|
14.
|
This
Confidential Agreement is binding on the parties and their respective
owned/associated companies and
agencies.
|
15.
|
This
Agreement goes into effect when duly signed and sealed by both
parties.
|
16.
|
This
Agreement is made in quadruplicate, with each party holding two copies
thereof, all of which are equally
binding.
|
Party
A: China Mobile Group Beijing Co., Ltd.
|
Party
B: Beijing AirInbox Information Technologies Co., Ltd.
|
|
Authorized
Representative: Xx Xxx
|
Authorized
Representative:
|
|
Dated:
[DD]
[MM]
[YY]
|
||
China
Mobile Group Beijing Co., Ltd. Beijing AirInbox Information
Technologies Co., Ltd.
|
Dated:
[DD]
[MM]
[YY]
Stamp
for Contract Stamp for Contract
|