EMPLOYMENT AGREEMENT Party A: Beijing AirInbox Information Technologies Co., Ltd. Party B: ___________________________ Date of Execution:___________________(dd/mm/yy)
Exhibit
4.37
Employee’s
Archive No.:
Party
A:
Beijing
AirInbox Information Technologies Co., Ltd.
Party
B:
___________________________
Date
of
Execution:___________________(dd/mm/yy)
1
Party
A: Beijing AirInbox Information Technologies Co., Ltd.
Legal
Representative (chief principal) or Authorized Agent: Xx Xxxxxx
Address:
00/X, Xxxxxx Xxxxx, 000, Xxxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx
Party
B: Name:
Gender:
Residence
Registration Address:
Postal
Code:
Actual
Residence:
Postal
Code:
Tel:
ID
Card/Passport No.:
In
accordance with the provisions of the Labor
Law of the People’s Republic of China,
the Labor Contract
Law of the People’s Republic of China,
regulations regarding labor employment as well as various rules and regulations
formulated by Party A, Party A and Party B have, through consultations on an
equal footing, agreed to enter into this Agreement on a voluntary basis for
establishment of labor employment relationship and for joint observation of
the
terms and conditions as set forth herein:
I
Term of Employment Agreement
Article
1 This
Agreement is an agreement with fixed
term
(fixed/flexible term) starting from__________(dd/mm/yy)
and expiring on __________(dd/mm/yy),
including the probation period of ____________________months.
Based upon the actual circumstances, the longest probation period shall not
exceed six months.
Article
2 The
employee may be accepted as the formal staff member only after it passes the
examination of probation period which shall be conducted in accordance with
the
Company’s relevant rules and regulations with the specific examination measures,
including but not limited to the assessment form for probation period. In
respect of an employee who fails to pass the examination of probation period,
Party A is to extend its probation period or terminate this Agreement based
upon
the actual circumstances.
II
Work Contents and Conditions
Article
3
Party B
agrees to hold the position of ________________
as
required by Party A’s business and achieve the tasks of production and operation
according to Party A’s provisions. Party A may, based upon the needs of work and
Party B’s ability and performance, have Party B’s title and position
adjusted.
2
Party
B’s duties of position, assignment and targets
shall be carried out according to the job specifications of its position or
Party A’s relevant provisions.
Article
4
Party B
shall complete the work assigned to it on schedule as required by Party A and
up
to the stipulated quality standards. Party B shall perform the following
obligations:
4.1
to
abide by the State’s Constitution, laws and regulations;
4.2
to
observe Party A’s rules and regulations;
4.3
to
protect Party A’s reputations and interests;
4.4
to be
devoted to its duties and work diligently;
4.5
to
keep confidential Party A’s trade secrets; and
4.6
to
observe this Agreement, the annexes hereto and the relevant
agreements.
III
Working Hours and Labor Conditions
Article
5
Party A
practices a working hour system under which Party B works for no more than
eight
hours a day and no more than 40 hours a week on the average.
Article
6
Party A
shall, in accordance with the State and local government’s provisions regarding
labor safety and health, provide Party B with the necessary labor conditions
and
work environment based upon the needs of position.
Article
7
Party B
shall have the obligation to keep Party A’s trade secrets. Party B shall, within
the duration of labor relationship and following revocation of labor
relationship, not divulge the Company’s trade secrets, secret procedures,
methods or other secrets relating to Party A it possesses, comes to know, or
has
access to in its working with Party A.
Article
8
Party
B’s salary falls within the Company’s confidential information which shall not
be divulged by either Party to a third party.
Article
9
Party B
shall, upon or prior to revocation of this Agreement, redeliver to Party A
all
storage devices, storage materials and copies involving Party A’s secrets such
as documents, materials, drawings, tapes, disks, CDs as well as notebooks
without using or retaining them in any manner on its own and/or by providing
a
third party with the same.
V
Labor Remunerations
Article
10
Party
A’s distribution of wages shall follow the principles of distribution according
to work and wisdom. Party A shall effect full payment of wages to Party B in
Renminbi at the end of each month or the beginning of the next
month.
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Article
11
The work
with time override which should have been finished within working hours and
yet
is unfinished attributable to Party B itself shall not be deemed to be overtime
work.
Article
12
Party A
practices a system of change in Party B’s position with corresponding variation
of its salaries.
Article
13
Party A
may, based upon the Company’s business situations and Party B’s performance,
regularly or irregularly pay Party B an unequal sum of reward.
Article
14
Party A
shall confirm Party B’s compensations by giving a notice.
Article
15 Party
A
shall, pursuant to the relevant provisions of the State and the local government
regarding social security, contribute to the pensions, unemployment, medical,
work-related injury insurance premiums as well as housing provident fund for
Party B.
Article
16
The
performance by Party B of this Agreement during or after the completion of
the
prescribed medical treatment for illness or injury not suffered from at work
shall be carried out in accordance with relevant
provisions of the State and the local Government.
Article
17
Party
B’s benefits such as wages and medical insurance for its work-related injury
or
occupational disease contracted shall be carried out in accordance with
relevant
provisions of the State and the local Government.
Article
18
Party B
is entitled to sick leave benefits on condition that it goes through formalities
for asking for leave on the basis of a doctor or hospital’s certification.
Otherwise, the duration of Party B’s absence from duty shall be deemed to be
absenteeism.
VII
Labor Disciplines
Article
19
Party B
shall abide by the rules and regulations formulated by Party A in accordance
with the law; strictly observe occupational safety and health, working systems
and job specifications; protect Party A’s properties; observe professional
ethics and actively participate in the trainings organized by Party A so as
to
enhance its quality and vocational skills.
Article
20
In the
event of Party B’s violation of labor disciplines, Party A may impose on it the
necessary disciplinary sanctions in accordance with this Unit’s rules and
regulations, up to revocation of this Agreement.
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VIII
Modification, Revocation, Termination and Renewal of Employment
Agreement
Article
21
Where
the laws, administrative regulations and rules taken as the basis for the
conclusion of this Agreement have changed, the relevant stipulations contained
in this Agreement shall be modified.
Article
22
Where
the objective conditions taken as the basis for the conclusion of this Agreement
have greatly changed so that this Agreement can no longer be performed, the
relevant stipulations contained in this Agreement may be modified subject to
both Parties’ consent through consultations.
Article
23
With
both Parties’ mutual agreement through consultations, this Agreement may be
revoked.
Article
25
Under
any of the following circumstances which are attributable to Party B itself,
Party A may demand immediate revocation of this Agreement and explain to Party
B
in writing the reasons; except under any of the following circumstances, Party
A
shall demand no immediate revocation of this Agreement:
25.1
Party B is proved not up to the requirements for recruitment during the
probation period;
25.2
The
Labor Agreement is concluded or modified by Party A against its true intentions
through Party B’s use of fraud, coercion or exploitation of Party A's
unfavorable position so that such Employment Agreement is rendered null and
void;
25.3
Party B is in serious violation of Party A’s rules and regulations;
25.4
Party B causes great losses to Party A due to serious dereliction of duty or
engagement in malpractice for selfish ends;
25.5
Party B causes serious losses to Party A as a result of its divulgence of Party
A’s trade secrets;
25.6
Party B is investigated for criminal responsibilities in accordance with the
law; or
25.7
Party B concurrently establishes labor relationship with another employer so
that the completion of this Unit’s assignment is seriously influenced or Party B
refuses to make rectification even when Party A has requested.
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Article
26
In any
of the following circumstances, Party A may revoke this Employment Agreement
by
giving a 30-day prior written notice to Party B itself or paying Party B an
additional 1-month salary:
26.1
where Party B is unable to take up his original work or any new work arranged
by
Party A after the completion of prescribed medical treatment for illness or
injury not suffered from at work;
26.2
where Party B is unqualified for its work and remains unqualified even after
receiving a training or an adjustment to another work post; or
26.3
no
agreement on modification of Employment Agreement can be reached through
consultations by Party A and Party B when the objective conditions taken as
the
basis for the conclusion of the Agreement have greatly changed so that the
Employment Agreement can no longer be carried out.
Article
27
Where
Party B falls within any of the following circumstances, Party A shall not
revoke this Employment Agreement with Party B in accordance with stipulations
contained in Article 26. This Agreement may be revoked in the aforesaid way
only
until and upon disappearance of the following circumstances:
27.1
to
be confirmed to have totally or partially lost the ability to work due to an
occupational disease contracted or a
work-related injury sustained with this Unit;
27.2
to
be receiving medical treatment for diseases or injuries not suffered from at
work within the prescribed period of time;
27.3
to
be a female staff member or worker during pregnant, puerperal or breast-feeding
period;
27.4
having worked with this Unit for more than a consecutive 15-year term with
less
than five years to lapse before the statutory retirement age;
27.5
to
be
engaged in operations exposing Party B to occupational disease hazards and
has
not undergone a pre-departure occupational health check-up, or is suspected
of
having contracted an occupational disease and is being diagnosed or under
medical observation;
or
27.6
other circumstances stipulated by laws, administrative rules and
regulations.
Article
28
Under
any of the circumstances set forth in Article 27 hereof where Party A shall
not
revoke this Agreement with Party B as stipulated in Article 26 hereof and yet
Party B falls within any of the circumstances set forth in Article 25 hereof,
Party A may forthwith revoke this Agreement with Party B in accordance with
stipulations contained in Article 25 hereof.
Article
29
Party B
shall, in revoking the Employment Agreement, give a 30-day prior written notice
to Party A.
Under
any
of the following circumstances, Party B may at any time inform Party A of
revocation of this Agreement. Party A shall pay to Party B the corresponding
labor remunerations and benefits:
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29.1
Party B is within the probation period;
29.2
Party A forces Party B to work by infringing upon Party B’s lawful personal
rights;
29.3
Party A fails to pay labor remunerations or to provide working conditions as
agreed upon in this Agreement;
29.4
Party A provides Party B with inclement occupational safety and health
conditions which severely endanger Party B’s health in violation of the State’s
relevant provisions; or
29.5
other circumstances provided for in laws and regulations.
Article
30
This
Agreement shall terminate upon expiration of term hereof.
Article
31
Party B
shall, upon revocation or termination of this Agreement, make hand-over and
take-over as agreed upon by both Parties. Party A shall provide Party B with
certification on revocation or termination of employment agreement and assist
Party B in going through formalities for transfer of archive and social
insurance relationship.
IX
Liabilities for Breach of Employment Agreement
Article
32
Under
any of the following circumstances which causes damages to Party B, Party A
shall be liable for compensation therefor in accordance with the State’s
relevant laws and regulations:
32.1
An
invalid Employment Agreement is concluded for reasons attributable to Party
A,
including the circumstance where a part of employment agreement is rendered
null
and void;
32.2
Party A purposely delays the conclusion of employment agreement, namely, failing
to conclude a employment agreement as stipulated and to go through formalities
for renewal of employment agreement within thirty days upon expiration of term
of employment agreement; or
32.3
to
have the Employment Agreement revoked in violation of the conditions stipulated
herein.
Article
33
Where
Party A falls within any of the following circumstances, in addition to claiming
against Party A for complement of wages, remunerations and economic
reimbursements, Party B may as well request for Party A’s payment of
compensations in accordance with the relevant provisions of the State and the
local Government:
33.1
to
deduct wages or purposely delay in paying wages to Party B; or
33.2
to
pay Party B remunerations below the local standard on minimum
wages.
Article
34
Where
Party B causes losses to Party A under any of the following circumstances,
it
shall be liable to Party A for compensation therefor:
34.1
The
Employment Agreement is concluded or modified by the other Party against its
true intentions through Party B’s use of fraud, coercion or exploitation of the
other Party's unfavorable position due to Party B’s subjective fault, as a
result of which this Employment Agreement is rendered null and
void;
7
34.2
Where Party B causes losses to other units due to its concealment of the fact
that it has not yet revoked or terminated employment
agreement
with
other employing units in concluding this Agreement;
Party B
and Party A shall be jointly liable for compensations therefor; or
34.3
Party B causes losses to Party A in performing this Agreement
as a
result of its subjective fault or gross negligence.
Article
35
Party B
who is in violation of stipulations contained in Article 7, 8 and 9 hereof
must
refund all such special allowances and commercial insurance premiums as received
by it and pay an additional liquidated damage equivalent to three times of
the
total sum of such special allowances and commercial insurance premiums as
received by it. Where Party A’s loss still cannot be totally covered by such
liquidated damage, Party B must compensate Party A for its loss.
Article
36
Party
B’s liabilities for breach of stipulations of service term are set forth in
detail as follows:
36.1
Since Party A provides Party B with specific trainings, Party B who is in breach
of stipulations contained in agreement on trainings and service term as agreed
upon herein shall bear liabilities for breach of contract as stipulated herein;
both Parties may as well agree upon breach of contract damages in respect to
service term by separately executing a service term agreement in no conflict
with contents hereof as an annex to this Agreement, provided however that the
amount of such liquidated damage shall not exceed the training expenses offered
by Party A; and
36.2
Where Party B leaves its job prior to expiration of service term (including
Party B’s resignation of its own volition and being laid off by Party A for
Party B’s reasons) in breach of stipulations contained herein regarding service
term, Party B shall bear liabilities for breach of contract as agreed upon
by
paying to Party A liquidated damages, provided however that, the liquidated
damages the payment by Party B of which is requested by Party A shall not exceed
the training expenses to be apportioned by the part of service term having
not
been performed.
Article
37
Any
labor dispute arising from performance hereof may be applied by the parties
involved to the labor dispute mediation committee of Party A for mediation;
if
the mediation fails, either Party may apply to the labor dispute arbitration
committee for arbitration. If either Party is not satisfied with the
adjudication of arbitration, it may bring the case to a people's
court.
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Article
38
The
intellectual property developed, invented or created by Party B during the
period when it works with Party A, or such results as created by Party B by
taking advantage of Party A’s properties or within Party A’s premises or during
the working hours fall within work results with their ownership and all the
intellectual properties relating thereto fully belonging to Party A. Party
A
shall have the right to dispose, vary in any manner or otherwise deal with
such
results, provided however that Party A shall reward and remunerate Party B
accordingly based upon the value of such results. Party B shall, at Party A’s
request (at Party A’s expenses), offer and render all such information,
materials and assistance as necessitated by Party A’s making use of intellectual
property to the fullest extent, and take all the actions to the extent that
they
are permitted by laws so that Party A’s intellectual properties can be protected
in China or other places throughout the world, including without limitation,
execution of all the necessary documents.
XII
Miscellaneous
Article
39
Matters
not covered herein shall be dealt with according to the State and local
Government’s relevant provisions; where the relevant laws or regulations are
amended, adjusted and/or supplemented to certain extent, then the corresponding
provisions contained herein shall be adjusted and construed pursuant to the
laws
and regulations in force. In case of conflict between stipulations contained
herein and the provisions provided for in the State’s laws and regulations, the
part with conflicts shall lose efficacy with other clauses in the Agreement
remaining binding force upon both Parties.
Article
40
This
Agreement constitutes an entire agreement between Party A and Party B and
supersedes all prior negotiations, consultations and agreements. The annexes
hereto are an inalienable major part of this Agreement, which shall be of equal
legal effect with this Agreement.
Article
41
This
Agreement is made in duplicate with each Party holding one copy which shall
be
of equal legal effect.
Article
42
This
Agreement shall come into force upon execution hereof. This Agreement shall,
upon its coming into force, become an entire agreement between both Parties
on
matters hereunder and supersede all prior contracts, agreements, undertakings,
representations and warranties.
Article
43
Being
annexes to this Agreement, the Statement
on Codes of Conduct for Xxxx.xxx Employees,
the
Letter
on Modification of Employment
Agreement
and the
Letter
on Renewal of Employment
Agreement
shall
be
of equal legal effect with this Agreement;
in case
of conflict of contents between annexes hereto and this Agreement,
the
Annexes shall prevail.
9
Legal
Representative or Authorized Agent (Signature or Seal)
Party
B (Signature)
|
10