Exhibit 4.71
English Translation
COOPERATION AGREEMENT ON PROMOTION OF WIRELESS
VALUE-ADDED SERVICE
This agreement is signed by the following two parties:
Party A: Beijing SingSung Media Technology Co., Ltd.
Address: Xxxxx 000, XXXXX Xxxxx Xxxxx, X00 Xxxxxxx Park, Hepingli, Dongcheng
District, Beijing
Postcode: 100013
Party B: Shanghai Linktone Internet Technology Co., Ltd.
Address: X00 Xxxxx Xxxxx, 000 Xxxxxx Xxxx, Xxxxxxxx
Postcode: 20000l
Both parties, through friendly negotiation and based on the principle of
equality, mutual benefit, common development, complementary advantages and equal
value repayment, come to the following agreement on such issues as that Party B
provides the channel of wireless value-added service to the media interaction
program provided by Party A.
1. Cooperation project
1.1 Party A and Party B shall cooperate for the broadcast program provided by
Party A on wireless value-added service on the telecom added-value service
platform-service platform of China Mobile provided by Party B; Party A shall be
responsible for program production and broadcast and development of some
technical process; Party B shall provide IVR channel of wireless value-added
service and the charge code l2590899766, l2590899769 , (hereinafter as
"cooperation code") and necessary technical support and shall be responsible for
settlement and coordination with the telecom operator China Mobile.
1.2 Both parties shall share the information fee arising from the cooperation
project under this agreement as stipulated in this agreement.
1.3 During the cooperation process, if the cooperation code needs to be
increased or modified because of service demand, both parties shall sign a
separate supplement agreement to modify or increase the cooperation code without
influencing the implementation of data transfer, settlement and other clauses of
both parties.
2. Liabilities and rights of Party A
2.1 Party A shall warrant that it has taken necessary behaviors to obtain
approval or permit from the relevant government administrations and have the
legal qualifications and capability of signing and fulfilling this agreement and
be subject to this agreement.
2.2 Party A shall warrant that it has obtained the legal written authorization
or permit as an owner or operator of the media program in cooperation under this
agreement; and it shall be entitled to be engaged in the cooperation under this
agreement without infringing the legal rights and interests of any third party.
Party B is entitled to check and examine of the original copy of written
authorization or permit and require Party A to provide print copy or fax copy.
2.3 Party A shall warrant that the program content it provide and the promotion
modes it adopts during the process of promotion do not breach relevant laws and
regulations and shall not use the promotion measure forbidden by the network
operator including but not limited to group SMS and self-consumption. If there's
any change with the rules of the operator, both parties shall make further
notice in written. The program provided by Party A shall not contain following
contents:
(1) Those which are in conflict with basic principles determined in the
Constitution;
(2) Those which endanger state security, divulge secrets of the State, subvert
sovereignty or endanger the unity of the State;
(3) Those which damage the honor or benefits of the State;
(4) Those which incite the national hatred or discrimination or undermine the
solidarity of the nations;
(5) Those which destruct state policy on religion and propagate evil cults or
superstition;
(6) Those which spread rumors to disturb the public order or destroy the public
stability;
(7) Those which propagate obscenity, gambling, violence, terror or instigate
crimes;
(8) Those which insult or slander others, or infringe upon the lawful rights and
interests of others;
(9) Other contents prohibited by laws, administrative regulations or provisions
of the State.
2.4 If relevant authorities impose penalty on Party B due to Party A's fault
which includes but not limited to shutting up the code ports for some areas or
all of them, calling off settlement, being bound over to make modification,
penalty, preventing the settlement for the total or partial receivables and
other economic sanctions, Party A shall compensate Party B for any loss. If any
of above happens, Party B shall be entitled to terminate the cooperation and
require Party A to refund the corresponding deposit within 10 days and
compensate all losses caused to the Party B.
2.5 Party A shall be responsible for conducting abundant propaganda and
promotion of telecom value-added products in the cooperation of this agreement
via its self-owned programs and assume the involved cost and resources for the
promotion. The propaganda and promotion channels of Party A include radio
stations of various places.
2.6 Party A shall be responsible for docking with and development of Gaoyang
Port; Party B shall assist Party A in the development and ensure Party A to
independently check out relevant service code SPOA of Gaoyang Port as basis of
settlement for the cooperation business.
2.7 Party A shall not in private pay discount including money to the personnel
of Party B or in private provide interests other than money such as domestic or
overseas tour and observation. If Party A violates this clause, Party B is
entitled to cancel or terminate this agreement and require Party A to refund the
payment made by Party B as penalty. This clause shall be kept in effect after
expiration of this agreement.
3. Liabilities and rights of Party B
3.1 Party B shall be responsible for providing cooperation code for the
cooperation project.
3.2 Party B shall provide the platform for telecom value-added service and
together with Party A develop, test, charge and open online the service process
of cooperation code to ensure fluency and stability of operation; the
development shall be carried out
by both parties, and Party B shall coordinate with Party A in smooth docking
with the Gaoyang data port.
3.3 Party B shall be responsible for settlement of information income generated
from the cooperation code it provides with the operator and settlement with
Party A according to the clauses in the agreement on a regular basis.
3.4 Both parties shall be responsible for customer service of this cooperation
project; if any loss is caused by liability accidents due to a third party which
includes but not limited to user's refund or claim, it shall be assumed by both
parties on a proportion of Party A: Party=8:2; if any loss is caused by
liability accidents due to either Party A or Party B which includes but not
limited to user's refund or claim, the responsible party shall assume the
corresponding liability according to its responsibility.
3.5 The loss including but not limited to user's refund and claim in clause 3.4
shall be paid in advance by the first receiver party and shall be checked off in
the latest settlement according to the proportion stipulated in the agreement;
in each settlement both parties shall confirm the checkoff commonly and sign the
memo.
3.6 For the following conditions, such as shut-up of service port due to Party
B, failing to charge or technical error due to Party B, Party B shall explain to
Party A in time and issue relevant written documents; If Party B does not issue
the written explanation, it shall be deemed as Party B's liability.
3.7 If Party B violates clause 3.6, Party A shall be entitled to require Party B
for compensation.
The compensation amount = daily average service amount of the area influenced by
the liability accident (duration for charge mins/day) * duration (number of
days) * due proportion to Party A (RMB1.1/min.) * 200%
Notes: 1) the daily average service amount of the area influenced by liability
accidents refers to the average amount of service in the first 15 days of that
area.
2) For conditions mentioned above that are caused by policy adjustment of
relevant departments or the network operator, Party B shall not assume the
liability and Party A shall not require compensation from Party B.
3.8 Without permission from Party A, Party B shall not make second use of users
in cooperation code which includes but not limited to sending hung-up SMS, group
SMS, uplink simulation and other technical operations.
3.9 Party B shall warrant that during the cooperation period Party B and its
affiliated company do not involve the development and promotion of self-owned
pure wireless service close to the content of the cooperation project in the
broadcast field. If Party A find that Party B has any of the following
behaviors, the deposit shall not be returned.
- Without permission of Party A, Party B publishes the cooperation service to
other media or promote independently;
- Without permission of Party A, Party B puts the content of or that close to
the cooperation service into use of self-owned business;
- Without permission of Party A, Party B expands self-owned business in the
broadcast field and causes competitive impact to the release of Party A's
program;
3.10 If the cooperation product under the agreement yields the total duration of
earnings of below 2 million mins/month for three months in continuity, Party A
will agree to exempt all obligations of Party B under clause 3.9 and allow Party
B to carry out the same or similar business with the third party, which shall
not be recognized as violation.
4. Profit Share and Settlement
4.1 Deposit
4.1.1 Party B shall pay Party A RMB 2, 800,000 as the cooperation deposit (RMB
800, 000 already paid in earlier time) within three days after signing the
agreement; within three complete charge cycles (calendar month) of the
cooperation business the total amount of the deposit shall be adjusted according
to the actual income of Party A; for instance if the actual income of Party A
for a charging month exceeds 2, 800,000, Party B shall make up the exceeding
part of the deposit within 10 days; if the actual income of Party A in next
month declines, Party A shall return the balance compared with last month to
Party B.
Note: if the difference is minor between two months, the deposit amount could
remain the same upon negotiation of both parties; the make-up and returned party
of deposit shall be calculated in integrity on a 10,000 basis upon the
negotiation of both parties.
4.1.2 Deposit refunding: in the month of cooperation expiration, the deposit
first offsets the due income of Party A for that term. If there's still surplus
after offset, Party A shall refund the total residue to Party B; if the deposit
does not cover the due
income of Party A for that term, Party B shall make up the balance within the
time for settlement as agreed in this agreement.
4.1.3 If Party A find that Party B does following behaviors which cause loss to
Party A, Party A shall deduct the deposit according to the actual amount of its
loss and the deduction as the compensation to Party A shall not be returned to
Party B:
A. Concealing the actual income generated form the cooperation code
B. In the case that loss of data is unchangeable or the program fails to
publicize this cooperative code due to Party B's fault;
C. Error appears between the actual settlement value and the statistic value
obtained from clause 2.4 and Party B fails to provide effective evidence to
testify the reason of errors or due to error fails to rationalize the part Party
A cannot approve of.
D. Without notifying Party A, the part of settlement Party B fails to make with
Party A
4.1.4 If the deposit is deducted due to 4.1.3, Party B shall make up the
deduction in the settlement of following month, excluding the item D in clause
4.1.3.
4.2 Both parties shall make settlement according to the statistic data in clause
2.4 and the settlement formula is
Charging duration (min) X RMB1.1/min = Division due to Party A
4.2.1 This formula only involves the business of China Mobile. For the
settlement formula with other operators, both parties shall sign a separate
supplement agreement.
4.2.2 According to clause 2.4, the charging duration is based on the feedback
from the data port of China Mobile
4.3 Settlement time and mode: twice a month for both parties.
4.3.1 On the third day of each month (extending accordingly with public or legal
vacation) Party B shall send the billing data to Party A from last 16th to the
end of last month; Party A shall confirm the billing data and issue official
invoice to Party B; within five work days after receiving the invoice Party B
shall pay the due amount of Party A to the account appointed by Party A.
4.3.2 on the 18th day of each month (extending accordingly with public or legal
vacation) Party B shall send the billing data to Party A from 1st to 15th of
this month;
Party A shall confirm the billing data and issue official invoice to Party B;
within five work days after receiving the invoice Party B shall pay the due
amount of Party A to the account appointed by Party A.
4.4 During the validity of the agreement, both parties shall ensure the safe
operation of the cooperation service; if any of the following conditions
including but not limited to punishment on Mobile operator, penalty, overdue
settlement, settlement cut and service cut etc. is caused due to either party,
the responsible party shall assume the loss of both parties and the loss caused
to the counter party.
4.5 If the telecom operator makes any change to rate standard or adjust the
profit division proportion against Party B, both parties shall adjust the
settlement formula according to corresponding regulations issued by the telecom
operator and shall sign a separate agreement.
5. Confidentiality
5.1 Without he written permit of the counter party, either party shall not
disclose any content of the clauses in this agreement, the signing and
fulfilling condition of the agreement as well as any information of the counter
party and the affiliated company obtained from signing and fulfilling the
agreement to the third party excluding the requirement of relevant laws,
decrees, government department, operator, stock exchange or other supervision
and regulation institutions and the legal, consulting, commercial or other
advisor and authorized employees of both parties.
5.2 Within the validity of and two years after the termination of the agreement,
this confidential clause is still effective.
6. Declaration and Warranties
6.1 Either party shall declare, state and warrant to the other party as follows:
6.1.1 It is an independent legal person set up legally with effective existence
6.1.2 It has the qualification to be engaged in the cooperation under this
agreement and the cooperation complies with the regulations of its business
scope.
6.1.3 The authorized representative has obtained full authorization and can
represent the party to sign the agreement.
6.1.4 It has the capability of fulfilling all obligations under this agreement
and its behaviors of fulfilling the obligations shall not violate any restraint
of the applicable
law it subject to or infringe the lawful right and interest of any third party.
6.2 If either party violates the above declaration, statement and guarantee, it
shall be recognized as breach of the agreement and shall assume the liability
for breach of contract according to the regulations of this agreement.
7. Liability for breach
7.1 Except for other stipulations in the agreement, either party that directly
or indirectly violates any clause in this agreement or fails to assume or
fulfill the due liabilities under the agreement in time or to the full shall
form breach of contract and the abiding party is entitled to notify and require
the defaulting party in written form to rectify its breach of contract, adopt
full, effective and timely measures to eliminate the outcome of breach of
contract and compensate for the loss of the abiding party caused by the breach
of contract of the defaulting party; if the defaulting party does not rectify
its breach of contract within 10 days after receiving the above notice of the
abiding party for its breach of contract, the abiding party shall be entitled to
terminate this agreement unilaterally in advance by a written notice.
7.2 After the fact of default happens, upon the rational and objective judgment
by the abiding parity that the fact of default has caused impossibility or
significant unfairness for the abiding party to fulfill the corresponding
liabilities under this agreement, the abiding party shall be entitled to notify
the defaulting party to terminate this agreement in advance in a written form
and the defaulting party shall compensate for the loss of the abiding party
caused by the breach of contract of the defaulting party.
8. Force majeure
8.1 Force majeure refers to unpredictable and unavoidable objective condition
that cannot overcome. The event prevents, influences or delays either party from
fulfilling the total or partial obligations according to the agreement; the
event includes but not limited to government behavior, operator's behavior,
natural disaster, war or any other similar events;
8.2 When force majeure occurs, the party that knows shall timely and fully
notify the counter party in written form informing the possible impact the event
might make to this agreement and provide relevant evidence in a reasonable term;
if it cannot provide the same evidence, the other party shall require it to
assume the liability of breach of contract according to the stipulations of this
agreement.
8.3 If the above force majeure results in that the part of or the entire
agreement cannot
be fulfilled or delayed to be fulfilled, both parties shall not assume any
liability of breach of contract against the other.
9. Cooperation term
9.1 This agreement shall come into force since the day the legal representatives
or authorized representatives of both parties sign and stamp this agreement. The
cooperation term starts from September 1, 2007 to February 29, 2008. Within 30
days before the expiration of the agreement, both parties shall negotiate on the
extension or modification of this agreement; if both parties agree to continue
the cooperation, both parties shall sign a renewed written agreement.
10. Cancellation of Agreement
10.1 Either party can terminate this agreement instantly after sending a notice
to the counter party that has breached the contract and does not make any
rectification to the defaulting behavior within 10 days after receiving the
notice sent by the abiding party on the breach of contract that has occurred and
existed.
10.2 Apart from the preceding clause, if either party intends to terminate this
agreement in advance, it shall send the application for the termination to the
counter party 30 days earlier in written form; if it receives the written
approval by the counter party, this agreement shall be closed 30 days after the
day the counter party approves.
10.3 After the expiration or the advanced termination of the agreement, Party A
shall refund Party B the deposit according to relevant stipulations in clause
4.1 within 10 days.
11. Dispute settlement and governing laws
11.1 If both parties have any dispute over the content or the execution of this
agreement, both parties shall conduct friendly negotiation; if the negotiation
does not work, either party shall lodge a complaint to a count with jurisdiction
over the place where the defendant locates.
11.2 The conclusion, execution, explanation and the dispute settlement of this
agreement shall be governed by the laws of PRC.
12. Miscellaneous
12.1 Either party of the agreement shall not be recognized as giving up or be
influenced in the execution of the right in future if it fails to execute the
right under
the agreement in time.
12.2 If any clause of this agreement becomes invalid or without execution power
in total or in part or violate any applicable law due to whatever reason, the
clause shall be regarded as being deleted; but other clauses in this agreement
shall also be effective and binding upon both parties in the condition of not
influencing the purpose of this agreement.
12.3 This agreement is concluded for the interest of both parties, their legal
successors and assignees and has the equal binding force upon both party, their
legal successors and assignees.
12.4 This agreement is in duplicate with each party holding a copy.
12.5 For the issues which this agreement does not cover, both parties shall
negotiate and sign an appendix to the agreement which has the equal legal force
upon the signature and stamp of both parties.
12.6 Party B is entitled to appoint its affiliated company to execute this
agreement and Party A shall conduct active coordination. The affiliated
companies of Party B include but are not limited to the following: Shanghai
Weilan Computer Co., Ltd., Shanghai Youlian Computer Co., Ltd.; Shanghai
Qimingxing E-commerce Co., Ltd.; Beijing Lianfei Wireless Communication
Technology Co., Ltd.; Beijing Cosmos Digital Technology Co., Ltd; Beijing Ojava
Information Technology Co., Ltd.; Beijing Lianyu Interactive Technology Co.,
Ltd.; Hainan Zhongtong Network Technology Co., Ltd. and Shenzhen Yuanhang
Technology Co., Ltd.
Party A: Beijing SingSung Media Technology Co., Ltd.
(Seal)
Legal representative or authorized representative: /s/ Beijing SingSung Media Technology Co., Ltd
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Date: October 8, 2007
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Party B: Shanghai Linktone Internet Technology Co., Ltd.
(Seal)
Legal representative or authorized representative: /s/ Shanghai Linktone Internet Technology Co., Ltd.
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Date: October 8, 2007
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