EXHIBIT 10.18
CHINA UNICOM SMS COOPERATION AGREEMENT
PARTY A: CHINA UNICOM ZHEJIANG BRANCH COMPANY
PARTY B: HURRAY! SOLUTIONS LTD.,
Both Party A and Party B agree on the following cooperation intent in the
principle of equality and mutual benefit, mutual complementary advantages, and
that of mutual development.
ARTICLE 1 COOPERATION PROJECT
(1) As a provider of the platform for the delivery of SMS, Party A will
provide a communication channel to Party B for value.
(2) Party B shall, through Party A's SMS platform, provide various
application services to Party A's mobile subscribers. If it is necessary for
Party B to expand the scope of application services in the future, the parties
shall separately enter into a supplementary agreement.
(3) Party B shall, on its own expense, set up customer service hot line for
subscribers to make complaints and enquiry calls, and shall announce the number
to the public.
(4) If Party B fails to realize the income target at RMB 50,000 per month
(including communication fee and information fee), Party A shall have the right
to terminate this Agreement.
ARTICLE 2 PARTY A's RIGHTS AND OBLIGATIONS
(1) Party A shall provide Party B with the gateway interface specifications,
and shall assist Party B with the testing and preparation for the activation of
services.
(2) Party A shall have the right to require Party B guarantee the legality
of information sent by Party B. If it is found in the operation of services that
Party B or its subscriber send illegal information to subscribers via Party B,
Party A shall have the right to require Party B take appropriate measures to
rectify.
(3) Party A has the right to require Party B send relevant information of
subscribers to Party A on real-time basis.
(4) Party A has the right to regulate the SMS messages sent by Party B as a
group.
(5) Party A shall endeavor to guarantee the normal operation and daily
maintenance of the SMS platform system supplied by Party A. In the event of any
impact upon Party B's services due to Party A's technical reason, Party A shall
give five (5) business days prior written notice to Party B.
(6) Party A shall provide Party B with appropriate conditions for Party B to
conduct system testing within five (5) business days upon Party B's formal
submission of system testing report.
(7) Party A shall offer its final testing opinion within two (2) weeks upon
Party B's completion of testing, and feedback the same to Party B.
(8) Party A shall provide its 1001 customer service system as the calling
center for subscribers making complaints and enquiry calls, and shall be
responsible for such complaints and enquiries by subscribers due to network
communication problems. Party A shall have the right to forward to Party B such
subscriber complaints and enquiries arising from any reason other than network
communication problems, and to supervise and urge Party B to resolve subscriber
complaints in an appropriate way. Party A shall deliver complaint materials to
Party B within three (3) business days upon receipt of subscriber complaints,
and Party B shall be responsible to ultimately resolve the issue within four (4)
business days upon receipt of the complaint materials.
(9) In the event that Party B fails to observe relevant management measures,
Party A shall have the right to supervise and urge Party B to take appropriate
steps to rectify. If, after Party A requires Party B to take rectification
measures, Party B still fails to do so or the rectification measures taken by
Party B can not meet with the requirements of Party A or relevant laws and
regulations, Party A may shut down the communication channel with Party B, or
eventually terminate the cooperation with Party B. Party B shall be liable for
any and all consequences arising from Party B's breach.
(10) Party A shall calculate average revenue of the parties in each month
according to the annual income arising from the cooperation between the parties
and the number of months that Party B connects to China Unicom in the current
year, and conduct ranking accordingly. SPs that rank at the last two will be
eliminated automatically and the cooperation agreement shall also be terminated
thereafter.
(11) If Party B provides any content or engages in any activity in violation
of laws or regulations, Party A shall exert economic sanctions upon and
terminate the cooperation agreement with Party B, and report the case to the
headquarters of China Unicom to notify all branches nation wide.
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ARTICLE 3 PARTY B's RIGHTS AND OBLIGATIONS:
(1) Party B shall provide Party A with qualification certificates, business
license, telecom and information service operation license, source of
information and bank account and other materials relating to the normal
operation of business, and guarantee that the billing for such information
services is in compliance with relevant provisions of the State pricing
authority.
(2) Party B shall observe the provisions of the Administrative Measures
Concerning Internet Information Services, Provisional Measures on the Management
of Value-Added Service SP of China Unicom Zhejiang Branch and other laws,
regulations and administrative rules.
(3) Within ten (10) business days prior to system testing, Party B shall
submit in written form for Party A's review the introduction, type and use
pattern of the services that Party B will provide to the subscribers.
(4) Party B shall exert necessary control upon the content of SMS edited by
the subscribers, and guarantee the decency and legality of SMS content from
origination.
(5) Party B shall carry out authentication on subscribers' mobile phone
number, and display the number of calling party while sending the SMS. SMS in
anonymity or using alias shall be prohibited from sending messages directly to
subscribers' mobile phone.
(6) Party B shall have log capacity, and shall keep at least one month
history data.
(7) Party B shall exert necessary limits on the service of group sending to
ordinary Unicom subscribers, the number of receivers in each cession of group
sending shall be no more than 5.
(8) Party B shall separately submit for Party A's approval of advertising
SMS that will be provided to enterprises and group subscribers, and shall
implement such services in accordance with the Provisional Measures on the
Management of Value-Added Service SP of China Unicom Zhejiang Branch-SMS Section
and relevant regulations.
(9) Party B shall guarantee the correctness, safety and legality of the SMS
content that Party B provides to subscribers. It is strictly prohibited to send
or distribute any message that is in violation of the State laws and regulation,
or against the interests of the State, general public and China Unicom. Party B
shall be liable for any disputes arising from the legality of the content of
SMS. Party B commits and warrants that the content or SMS provided by Party B
will not infringe the intellectual property rights or other civil rights of any
third parties, Party B further undertakes to compensate Party A for any actions,
claims, administrative punishments, loss and damage arising from or in
connection with the violation of aforesaid commitments and warrants.
(10) During the cooperation period, Party B shall add new services in
connection with the cooperation hereunder only after obtaining Party A's
approval. Without Party A's prior consent, Party B shall not conduct service
testing or provide service to subscribers. Party B shall timely deliver
materials of services to Party A, so that Party A can update on real-time the
database of such services.
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(11) During the cooperation period, Party B shall provide Party A with
reports on the growth and category of subscribers, and the use of services,
according to Party A's requirements.
(12) Party B shall guarantee that the subscribers be fully informed of the
price, content and mode of provision of services prior to acceptance thereof.
(13) In the principle of subscribers' voluntariness, any service provided by
Party B to the subscribers shall be subject to the prior consent of the
subscribers, and Party B shall timely provide information service in good
quality and the quantity according to the customization requirements of the
subscribers.
(14) Party B shall handle subscriber enquiries and complaints not resulting
from network communication problems and establish effective channels for
complaints that will be directed by Party A's customer service center. Party B's
hotline number is 0571-85152669. Party B shall assume the ultimate liability to
the complaints from subscribers that neither Party A nor Party B can give a
reasonable explanation.
(15) Party B shall ensure its business feedback format in the service cession
is in conformity with the "Service Testing Report" submitted to Party A, and the
information service tariff is in conformity with the "Value-Added Mobile Service
Code and Information Service Tariff".
(16) Party B shall have the obligation to cooperate with relevant State
authorities or Party A to investigate the origination of SMS sent by or through
Party B.
(17) Party B shall guarantee the correctness of the billing information that
Party B has submitted, and shall be liable for any consequences arising
therefrom.
(18) In the event that Party B fails to observe relevant administrative
measures set forth above, Party A shall have the right to supervise and urge
Party B take appropriate steps to rectify. If, after Party A requires Party B to
take rectification measures, Party B still fails to do so or the rectification
measures taken by Party B can not meet with the requirements of Party A or
relevant laws and regulations, Party A may shut down the communication channel
with Party B, or eventually terminate the cooperation with Party B. Party B
shall be liable for any and all consequences arising from Party B's breach.
ARTICLE 4 MAINTENANCE RESPONSIBILITIES
(1) Responsibilities for maintenance shall be divided at the point where the
equipment of the parties connects; both parties shall perform their respective
obligations to ensure the normal operation of the services.
(2) Detailed responsibilities of the parties are set forth in Attachment 1
hereto.
ARTICLE 5 BILLING AND SETTLEMENT
Detailed method for billing and settlement is set forth in Attachment 2 hereto.
The method for billing and settlement shall be implemented commencing from
January, 2004.
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ARTICLE 6 CONFIDENTIALITY
(1) Both parties shall be responsible to keep confidential of all the
subscriber information obtained from such services.
(2) Both parties shall be responsible to keep confidential of this
cooperation and the terms and conditions of this Agreement. Without prior
written consent of the other Party, neither Party shall disclose to any third
party the terms and conditions of this Agreement and relevant information.
(3) During the term of this Agreement and two (2) years thereafter, neither
Party shall disclose, give away or provide to any third party any business
secrets (including financial secrets), technical secrets, operation know-how
and/or other confidential information and materials (whether in written, oral or
other form) that have been obtained from the other Party.
(4) During the term of this Agreement and two (2) years thereafter, both
parties shall be responsible to keep confidential of business secrets (including
financial secrets), technical secrets, operation know-how and/or other
confidential information and materials (whether in written, oral or other form)
that have been jointly created by the parties in the performance of this
Agreement and can not be severed, and neither Party shall disclose, giveaway or
provide the same to any third party without consent of the other Party.
(5) The confidentiality obligation set forth in the preceding paragraph does
not include any of the following information that:
(i) has already been known by the receiving party prior to the
receipt of such confidential information;
(ii) is or becomes generally available to and known by the public
(other than as a result of any misconduct of the receiving party);
(iii) is or becomes available to the receiving party from a third
party which has the right to provide such information to the receiving party
without any obligation to keep confidential thereof;
(iv) has been developed independently by the receiving party; or
(v) the other party has given prior written consent for the
disclosure to the third party.
(6) It is permitted to disclose, give away or provide confidential
information only under the following circumstances:
(i) disclosure is within the scope of requirements by government
authorities to prepare documents in accordance with laws and regulations;
(ii) disclosure is within the scope as necessary for soliciting
orders or performing purchase and service agreement;
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(iii) information enter into the public domain through other sources
not in violation of confidentiality provisions;
(iv) disclosure is within appropriate scope for consultants and
advisers of the Party who are subject to confidential obligations.
(7) Either Party may disclose or provide confidential information to its
employees or contractors as necessary to know such confidential information for
the performance of this Agreement, provided however, that such employees or
contractors shall be subject to confidential obligations similar in nature.
(8) If any Party is or becomes a listed company, such Party may disclose or
provide confidential information within appropriate scope as required by the
listing rules or standard practices.
(9) Subject to the conditions set forth above, this Agreement and the
Attachments hereto shall constitute business secrets to which both parties
undertake confidential obligations. Neither Party (including any of its
employees) shall provide, give away or disclose all or any part of the text or
content of this Agreement or the Attachments hereto to any other parties.
(10) Any act in violation of the provisions of this Article 6 shall
constitute a breach of this Agreement.
ARTICLE 7 LIABILITY FOR BREACH
(1) If this Agreement cannot be performed due to any Party's violation of
this Agreement, the other Party shall have the right to terminate this
Agreement.
(2) If any Party suffers economic losses arising from the breach of the
other Party, the Party in breach shall compensate the other Party for such
losses.
(3) If any Party is in breach of this Agreement and fails to rectify such
breach within seven (7) days after receiving notice from the non-breaching party
about the occurrence and existence thereof, the non-breaching party shall have
the right to terminate this Agreement immediately upon sending notice to the
breaching party.
ARTICLE 8 DISPUTE RESOLUTION AND GOVERNING LAW
(1) The parties agree that they shall endeavor to resolve through
consultations all the dispute, divergence or contradiction between the parties
arising from or in connection with this Agreement, including but not limited to
such disputes concerning the effectiveness or continuity of this Agreement, or
disputes concerning the effectiveness of arbitration award. In the event that
dispute, divergence or contradiction can not be resolved within forty-five (45)
days after the occurrence thereof, both parties agree that such dispute shall be
submitted to the Hangzhou Arbitration Commission for arbitration according to
its rules then in effect. The award of arbitration is final and binding upon
both parties. The arbitration fee shall be borne by the losing party, unless
otherwise awarded by the arbitration panel. The portion of this Agreement other
than that under arbitration shall be performed continuously, provided
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however, that pending an arbitration award, either Party shall have the right to
terminate this Agreement according to the provisions hereof.
(2) The execution, performance, interpretation of and dispute resolution
under this Agreement shall be governed by the laws of the People's Republic of
China.
ARTICLE 9 MISCELLANEOUS
(1) The term of this Agreement shall be commencing from January 1, 2004 and
ending at December 31, 2004. Party B agrees, if Party A amends the method for
billing and settlement during the term of this Agreement, the settlement
hereunder shall be conducted according to the method thus amended (see
Attachment 2) from the date of Party A's formal implementation of the new method
for billing and settlement, provided that Party A shall notify Party B in
written form within five (5) business days prior to the implementation thereof.
The term of this Agreement will be automatically extended for another year upon
expiration unless either Party objects. Any issue not covered hereunder shall be
supplemented in writing upon amicable consultations between the parties. Party B
acknowledges that this Agreement is not exclusive to Party A, that Party A has
the right to enter into agreements identical or similar with this Agreement with
any third parties.
(2) If any provision of this Agreement shall be invalid, unenforceable for
any reason whatsoever, or in violation of any applicable laws, this Agreement
shall be construed as if such provision has been deleted, and the remaining
provisions of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
(3) The newly amended "Relevant Regulations" shall be incorporated into this
Agreement as supplemental provisions upon written confirmation by Party A and
Party B.
(4) The Cooperation Agreement (No.CUZJ2002YD05010P) between Party A and
Party B shall be concurrently terminated.
(5) This Agreement is in duplicate and each of Party A and Party B holds one
copy. Each copy shall have the same legal effect. This Agreement shall be signed
in four counterparts, three (3) of which shall be held by Party A and one (1)
held by Party B, with the same legal effect.
PARTY A: CHINA UNICOM ZHEJIANG BRANCH COMPANY
Authorized Representative: Xxxx Xxxxx
Date of signature: August 20, 2004
Seal
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PARTY B: HURRAY! SOLUTIONS LTD.
Authorized Representative:
Date of signature: July 5, 2004
Seal
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