Cooperation Agreement on Monternet Multimedia Messaging Services (Translated from Chinese)
Exhibit
4.28
Cooperation
Agreement on Monternet Multimedia Messaging Services
(Translated
from Chinese)
Party
A:
China Mobile Telecommunications Group Corporation
Party
B:
Beijing AirInbox Information Technologies Co., Ltd.
According
to the principles of equality and mutual benefit, through friendly negotiation,
both parties agree that Party B shall entrust Party A to provide communications
carrier services, fee collection and other services. This Agreement is entered
into in order to regulate the rights and obligations of the two parties in
the
course of providing services. This Agreement is effective and binding upon
both
parties.
1.
|
Cooperation
Principles
|
Based
on
common interests and mutual benefit in the field of mobile data multimedia
messaging services, each party shall perform this Agreement in good faith and
cooperate with the other party's work.
2.
|
Cooperation
Projects
|
"MMS"
refers to the multimedia messaging services provided by China Mobile. Its most
significant feature is its support of multimedia functions and its capacity
to
deliver full-functional content and information, which includes the information
in multimedia format such as word, picture, voice and data.
Party
A,
as the network operator, shall provide the platform for MMS and communications
services, and shall provide Party B with the standards for Monternet(TM) MMS
service and technical standards for interfacing; Party B, as the service
provider, shall develop and provide application and content services in
accordance with the standards provided by Party A. Party B may connect to Party
A’s MMS network platform to provide MMS service, subject to Party A's testing
and approval.
3.
|
Mutual
Obligations
|
(1)
|
Party
A’s obligations
|
(a)
|
Party
A shall use all kinds of promotional media (e.g. TV advertisement,
posters
etc.) to promote and advertise Monternet(TM) multimedia messaging
services
so as to attract consumers to use multimedia messaging
services.
|
(b)
|
Party
A shall provide Party B with technical standards for interfacing
and
technical support for MMS to insure Party B may successfully connect
to
Party A's MMS network platform.
|
(d)
|
Using
the MMSC system firewall of Party A and the interface of Party B
as the
boundary, Party A shall be responsible for maintaining all the equipment
on its side and ensuring this equipment is able to perform normally.
|
(e)
|
Party
A shall be responsible for the daily maintenance of the MMS network
platform and for resolving technical breakdowns caused by Party A
in order
to ensure that application services can run normally.
|
(f)
|
Party
A shall provide the network interface services for Party B without
any
charges, and assist Party B to connect the application services with
the
MMS network platform.
|
(g)
|
Party
A shall be responsible for establishing the criteria and standards
for the
MMS operation, notifying Party B of the criteria and standards fully
and
unequivocally, and shall give Party B a reasonable period of time
to
realize these criteria and standards.
|
(h)
|
For
the services provided by Party B on the MMS network platform, Party
A
shall calculate the fees payable by its customers pursuant to the
pricing
information provided by Party B and confirmed by Party A, shall collect
the fees from its customers who used Party B’s services, and settle the
fee with Party B pursuant to relevant provisions under Section 7
of this
Agreement.
|
(i)
|
Party
A shall be responsible for providing consultancy and customer services,
and receiving customers’ complaints about the network, the operations
platform, fees, etc. that are caused by factors on Party A’s side; with
regards to complaints caused by factors on Party B’s side, Party A shall
notify Party B of the relevant situation and ask Party B to resolve
it as
soon as possible.
|
-2-
(2)
|
Party
B's obligations
|
(a)
|
Party
B shall be subject to the cooperation requirements and obligations
specified in the "Monternet(TM) SP Cooperation Administrative
Measures--MMS Business Handbook," which is attached to this Agreement.
|
(b)
|
Party
B shall use all kinds of promotional media (including Web sites,
WAP
sites, surface media, TV, etc.) to promote MMS services. Party B
shall
obtain Party A’s consent before Party B uses Party A's name and business
trademark to promote Monternet(TM) MMS service; without prior written
consent of Party A, Party B shall not use the name of "China Mobile"
or
"Monternet(TM)" to conduct any promotional activity, which is not
under
this Agreement.
|
(c)
|
Party
B shall be responsible for providing the application server, application
software, information source, dedicated line for application data
and
other necessary equipment and for ensuring that all the provided
equipment
can work normally to meet Party A's
requirements.
|
(d)
|
Party
B shall actively cooperate with Party A's testing of the connection
point,
and undertake to provide MMS service in accordance with the MMS network
platform business standards and connection point technical standards
provided by Party A.
|
(e)
|
Using
the connection point of Party A's MMSC system firewall with Party
B as the
boundary, Party B shall be responsible for maintaining all equipment
on
its own side, and for ensuring the smooth operation of such equipment.
|
(f)
|
Party
B shall immediately address any breakdown of application services
caused
by itself, and take practical measures to prevent re-occurrence of
such
breakdown. Party B shall be liable for any economic losses suffered
by
Party A or the customer of Party A's MMS service caused by Party
B.
|
-3-
(g)
|
Party
B shall negotiate and handle commercial arrangements with direct
providers
of the application content (such as the owners of image or music
copyrights). Party B shall ensure that the information and services
it
provides do not violate any applicable state policies, laws or
regulations, do not harm consumers’ interests or infringe on the
intellectual property rights or related rights of any third parties.
Party
B shall be solely liable for the litigation thus
incurred.
|
(h)
|
Without
Party A's prior written consent, Party B shall not unilaterally provide
other services, which are not confirmed by Party A, to Party A's
customers.
|
(i)
|
Party
B shall not provide to any other telecommunications service operator
the
same application service content provided to Party A, regardless
of the
means of transmission of the application service; otherwise, Party
A is
entitled to terminate the application services provided by Party
B on
Party A’s MMS network platform and cease making fee payments to Party B.
|
(j)
|
Party
B shall clearly provide Party A with all information required for
fee
calculation of the services provided by Party B, and shall assume
all
economic and legal liabilities related thereto.
|
(k)
|
Party
B shall provide Party A with all statistical information relating
to the
consumption of Party B's MMS services by Party A's customers.
|
4.
|
Mutual
Rights
|
(1)
|
Rights
of Party A
|
(a)
|
Party
A shall be entitled to review or entrust a qualified institution
to review
the information provided by Party B and the content of Party B's
application services.
|
(c)
|
Party
A shall be entitled to demand Party B to amend, modify and delete
those
contents which Party A deems necessary to do
so.
|
-4-
(d)
|
Party
A shall be entitled to formulate appraisal standards for the application
services provided by Party B, and evaluate Party B's performance
in
accordance with such standards. The evaluation methods are detailed
in the
attachment to this Agreement: Chapter 9 of the “Monternet(TM) SP
Cooperation Administrative Measures, MMS Business
Handbook.”
|
(e)
|
Party
A shall be entitled to give guidance and supervision of the pricing
policy
of Party B's service.
|
(f)
|
Party
A shall be entitled to receive reasonable revenue. (See Section 7
of this
Agreement for details on revenue
sharing.)
|
(2)
|
Rights
of Party B
|
(a)
|
Party
B shall be entitled to determine the pricing of its services under
Party
A's guidance.
|
(b)
|
Party
B shall be entitled to obtain statistical data regarding customer
visits
to Party B's information and application service contents through
the
network platform.
|
(c)
|
Without
Party B's consent or written authorization, Party A shall not transfer,
release or resell any information products provided by Party B to
any
third party unrelated to this Agreement by any means.
|
(d)
|
Party
B shall be entitled to receive a reasonable share of the business
revenue.
See Section 7 of this Agreement for details on revenue
sharing.
|
(e)
|
In
case of significant discrepancy between the statistics of Party A
and
Party B, Party B is entitled to check details together with Party
A for
verification, the details of which are set forth in Chapter 6 of
the
"Monternet(TM) SP Cooperation Administrative Measures, MMS Business
Handbook".
|
5.
|
Intellectual
Property Rights
|
(1)
|
Party
A authorized Party B to use the trademark and the company name of
Party A
for the purposes agreed in this contract. Party B warrants that it
shall
use the trademark and company name of Party A in correct and reasonable
ways and will not change or misrepresent the image and components
of
aforesaid trademark and company name and that it will not use trademark
and company name of Party A for purposes other than those stipulated
in
this contract in any form.
|
-5-
(2)
|
Party
A owns the copyright to the promotional materials it provides to
Party B
in accordance with this contract, including the ideas, design, figure,
picture and words. Without prior written consent of Party A, Party
B shall
not use or allow any third party to use them for purposes not stipulated
in this contract.
|
(3)
|
Party
B warrants that the MMS content it provides to Party A does not violate
any intellectual property rights of any third party. Party B shall
be
responsible for any claims or disputes related to the MMS content
or
caused by Party A’s using the MMS content and shall indemnify Party A for
any losses thereby incurred by Party
A.
|
6.
|
Confidentiality
|
(1)
|
For
purposes of this Agreement, "Proprietary Information" refers to any
information obtained by one party from the other party ("DISCLOSING
PARTY") during their cooperation which is developed, created or discovered
by the Disclosing Party, or is available to or transferred to the
Disclosing Party that are commercially valuable to the Disclosing
Party's
business. Proprietary Information includes without limitation trade
secrets, computer program, design technology, idea, know-how, technique,
data, business and product development plan, customer's information
and
other information related to the business of the Disclosing Party,
or
confidential
information obtained by the Disclosing Party from others. The Parties
acknowledge that the Disclosing Party shall own Proprietary Information,
and such Proprietary Information is of significant importance to
such
Disclosing Party. The cooperation relationship between the Parties
hereto
has generated the relationship of confidence and trust relating to
the
Proprietary Information between the parties
hereto.
|
(2)
|
Without
prior written consent of the Disclosing Party, the other party shall
keep
all Proprietary Information in confidence and may not use or disclose
to
any person or entity such Proprietary Information, except for normal
performance of the obligations provided
hereunder.
|
(3)
|
Both
Parties shall bear non-disclosure responsibility for this cooperation
and
the details of this Agreement. Without the prior written consent
of the
other party, neither party shall disclose such cooperation and details
of
this Agreement to any third party.
|
7.
|
Revenue
Sharing and Fee Settlement
|
(1)
|
The
MMS will be provided by Party B to Party A’s consumers through Party A's
MMS platform and telecommunication network. Therefore both parties
are
entitled to receive reasonable revenue under this
Agreement.
|
(2)
|
Telecommunications
fee generated by Party A's consumer in use of Party A's network resources
to access Party B's services shall be solely borne by Party
A.
|
(3)
|
Party
A shall figure out the information fee receivable from its customers
for
use of Party B's services, 15% of which shall be taken by Party A.
After
Party B provides invoice to Party A's local provincial subsidiary,
Party
A’s local provincial subsidiary shall settle the fees with Party
B.
|
-6-
(4)
|
The
basis of settlement: the Monternet(TM) service fee xxxx shall be
the basis
for settlement.
|
(5)
|
Party
B may, pursuant to the fee settlement xxxx issued by Party A's local
subsidiary, conduct fee settlement with Party A's local subsidiary
without
entering into other agreement with Party A's local provincial subsidiary.
|
(6)
|
Settlement
period: China Mobile settles with Party B
monthly.
|
(7)
|
Fee
calculation standards and settlement procedures are described in
Chapter 6
of the "Monternet(TM) SP Cooperation Administrative Measures, MMS
Business
Handbook".
|
(8)
|
Pursuant
to tax laws and regulations, Party A and Party B shall pay taxes
arising
out of performance of this Agreement respectively.
|
(9)
|
Party
B shall provide Party A with its accurate bank account and related
information:
|
Opening
Bank: Beijing
Capital Stadium Branch, Industrial and Business Bank of China
Account
No.: 0200053719200031688
-7-
8.
|
Liability
for Breach
|
(1)
|
If
any party's breach of this Agreement causes this Agreement to become
unenforceable, the non-breaching party shall be entitled to terminate
this
Agreement and require compensation for any losses thus
incurred.
|
(2)
|
If
any party's breach causes adverse social impact or economic losses
on the
other party, the non-breaching party shall be entitled to hold the
breaching party liable and require corresponding economic compensation,
or
to the extent of terminating this
Agreement.
|
9.
|
Term
of This Agreement
|
(1)
|
This
Agreement shall become effective as of the date of its execution
and be
effective until December 31, 2007.
|
(2)
|
If
both parties wish to continue the cooperation under this Agreement,
the
term of this Agreement shall automatically extend for one year. If
one
party has no intention to prolong this Agreement, it shall give written
notice to the other party one month prior to its
expiration.
|
(3)
|
This
Agreement may be automatically terminated upon agreement by both
parties
during the term of this Agreement.
|
(4)
|
In
case of this Agreement has no possibility to be performed due to
any force
majeure events, this Agreement may be automatically terminated upon
settlement of all outstanding bills by both
parties.
|
(5)
|
If
the occurrence of a certain event makes it impossible for one party
to
continue performance of this Agreement, and if such event is foreseeable,
such party shall notify such event to the other party within five
working
days after its reasonable forecast of such event, and cooperate with
the
other party to complete all outstanding matters. If such party fails
to
notify the other party of such event and thus make the other party
suffer
losses, such party shall indemnify the other party
correspondingly.
|
10.
|
Miscellaneous
|
(1)
|
The
“Monternet(TM). SP Cooperation Administrative Measures, MMS Business
Handbook,” which is attached to this Agreement, has the same legal effect
as this Agreement.
|
(2)
|
All
matters not included in this Agreement, shall be addressed by both
parties
through friendly negotiation.
|
-8-
(3)
|
If
any dispute arises relating the content or performance of this Agreement,
the parties shall settle it through friendly consultation; if the
consultation fails to resolve the dispute, either party may bring
the
dispute to a Chinese court with due
jurisdiction.
|
(4)
|
In
the event of a change in the PRC’s policies, both parties shall amend the
provisions of this Agreement according to such a
change.
|
(5)
|
This
Agreement is made in duplicate and each party shall hold one copy.
Each
copy shall have the same legal
effect.
|
Party
A:
China Mobile Telecommunications Group Corporation
Authorized
Agent: (signature) Gao Nianshu
Date:
2007-4-27
Party
B:
Beijing AirInbox Information Technologies Co., Ltd.
Authorized
Agent: (signature) Wu Linguang
Date:
-9-