Exhibit 10.16
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Cooperation Agreement on Monternet SMS Service
Between
Zhejiang Mobile Communications Co., Ltd.
And
Beijing WVAS Solutions Ltd.
No.: ZMCCDC-SMSSP-H05102
Dated: May 1, 2003
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Party A: Zhejiang Mobile Communications Co., Ltd.
Address: 406 Tiyuchanglu, Hangzhou City, Zhejiang Province
Zip Code: 310006
Telephone:
Party B: Beijing WVAS Solutions Ltd.
Address: Xxxxx 0, Xxxxxx Xxxxxxxx, Xx.00 Xxxxxx, Xxxxxxxxx District, Beijing
Zip Code: 100011
Telephone: 000 00000000
Definition
In this Agreement, the following expressions shall have the meanings set out
below:
"SMS Communication Fee", means such fee arising from the use of communication
network (0.10 yuan per piece for subscribers of GoTone and M-Zone services and
premium users of prepaid phone card, and 0.15 yuan per piece for ordinary users
of prepaid phone card for the time being).
"Information Service Fee", means such fee arising from the use of the SP's
application services or information services. It is in principle determined by
such SP and subject to approval of relevant authorities. It is suggested that
its ceiling be 2 yuan per piece or 30 yuan per month. The fee may be adjusted as
often as every six months.
Party A, as an operator of mobile communications and mobile data services,
provides open communications channels to all application providers with certain
charges. Party B, as an application provider, provides application services
under the information category directly to the users of Party A's services.
With a view to taking full advantage of their resources in their respective
service areas to provide SMS services to the extensive range of users of Party
A's services, The Parties agree as follows regarding the cooperation on SMS
application services under the information category based on the principles of
equality, mutual benefit and development through friendly negotiations.
Chapter 1 Content of Cooperation
1. Based on the technical and business strengths of the Parties, Party A, as the
provider of the SMS platform, shall provide communications channels to Party B
with certain charges. Party B shall use such SMS platform provided by Party A to
provide local services, and provide a variety of SMS application services to
Party A's mobile phone users (including
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subscribers of GoTone and M-Zone services and users of premium and ordinary
prepaid phone card).
2. Party A shall use its service-supporting system to provide billing and
chargeable fee collection services to Party B.
3. The Parties shall use their best efforts to ensure the normal operation of
the services contemplated hereunder.
4. On the basis of its cooperation with Party A, Party B voluntarily complies
with and accepts the service management and performance evaluation by Party A.
5. Main contents of the cooperation are described in an attachment hereto. For
purpose of this Agreement, the cooperation is referred to as the Monternet SMS
services.
Chapter 2 System Development and Management
6. Party A is responsible to develop, test, operate and maintain the SMS
information system as required for realizing the cooperation contemplated
hereunder and shall bear any costs and expenses arising therefrom, including the
expenses regarding all hardware equipment, software, system testing, operation
and maintenance.
7. Party B is responsible to develop or rent, test, operate and maintain the SMS
Game service system and the data linkage channel between the Parties as required
for realizing the cooperation contemplated hereunder, and shall bear any costs
and expenses arising therefrom, including the expenses regarding all hardware
equipment, software, system testing, operation and maintenance, routine
operation management and marketing. Party B shall provide the communications
means to be connected with Party A's SMS gateways, and Party B shall be
responsible to bear all expenses in connection with the application, rent and
use, and maintenance of such communications means.
8. Party A shall make its technical and interfacing specifications relating to
its SMS information system accessible to Party B prior to May 1, 2003 upon the
written request of Party B, and assign the corporate code of 911051 and service
connection code of 1000 to Party B.
9. Party A may control the number and flowing volume of the gateways of its SMS
information system. To ensure the stable operation of SMS services, Party A may
adjust the flowing volume of SMS based on the capacity of the SMS information
system, provided that Party A shall notify Party B of such adjustment in
advance. Party B shall actively cooperate with Party A in any such arrangement
or adjustment, otherwise it shall be liable for any legal liability arising
therefrom.
10. Party B is responsible to maintain its application system and ensure the
stability and smoothness of information flow on its side of the network. Party B
shall be liable for any legal liability arising from any problem of Party B's
application system. Party B shall also ensure that its system shall not affect
the normal operation of Party A's current mobile communication network,
otherwise it shall be liable for any loss incurred by Party A due to any problem
of Party B's network.
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11. Party B's use of the technical and interfacing specifications relating to
the SMS information system provided by Party A shall be limited to the
development and provision of the SMS Game services contemplated hereunder. Such
specifications shall not be used for development or provision of any business
unrelated to the SMS Game services.
12. Party B shall monitor the usage of Monternet SMS Service by users on a
timely basis and submit to Party A a status report of such usage on a monthly
basis, which shall include the growth of user base, classification of user's
SMS, user's habit in using the service, and forecast for the service
development. The Parties shall keep such report in confidence in accordance with
provisions under Article 31 and Article 32 of this Agreement.
Chapter 3 Terms of Settlement
13. Party B shall pay to Party A the SMS Communication Fee to be calculated at
the following rates. Party B may effect such payment in accordance with the
terms under Chapter 2 of the Entrusted Fee Collection Agreement. For any
asymmetrical portion in the volume of the SMS services, i.e., the down-linked
pieces are more than up-linked pieces, Party B shall pay to Party A the SMS
Communication Fee, the rate of which is as follows:
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Volume of asymmetrical down-link SMS Fee rate Calculation method
services (piece/month) (yuan/piece) X- (MT-MQ) piece/month
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Below 100,000 pieces 0.08 X*0.08, 2,000 yuan at minimum
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100,000 - 300,000 pieces 0.07 (X-100,000)*0.07+100,000*0.08
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300,000 - 1,000,000 pieces 0.06 (X-300,000)*0.06+200,000*0.07+100,000*0.08
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Over 1,000,000 pieces 0.05 (X-1,000,000)*0.05+700,000*0.06+
200,000*0.07+100,000*0.08
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Subject to Party A's consent, the most favorable asymmetrical communication fee
may be granted to the SP for the services provided for the first three months,
or to the SP who is a strategic partner.
14. Party B shall charge the users for the Information Service Fee in accordance
with the agreed-upon rates with the users.
15. Party B shall collect the Information Service Fee provided under this
Chapter from its users by the Second means provided hereunder:
15.1 Party B collects the Information Service Fee by itself;
15.2 Party B entrusts Party A to collect the Information Service Fee from the
users and pay to Party A a commission in the amount of 9% of the Information
Service Fee collectable from the subscribers of GoTone services and 15% of the
Information Service Fee collectable from the subscribers of M-Zone services and
premium and ordinary users of the prepaid phone card. The Parties shall enter
into an entrusted fee collection agreement in connection therewith.
16. Party B is responsible for the billing of SMS Game services; provided,
however, that the format of such billing shall be consistent with the billing
format provided by Party A.
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Party A may undertake such billing on behalf of Party B within Party A's
capacity. The Parties shall enter into an entrusted billing agreement in
connection therewith.
Chapter 4 Market Promotion and Customer Service
17. The Parties shall jointly conduct the marketing and promotion activities and
be jointly responsible for any costs and expenses thus incurred.
18. In the course of marketing and promotion activities jointly conducted by the
Parties, neither Party may use the trademark, corporate name, product brand or
other identifications owned by the other Party without written permit of such
Party. If Party A requests Party B to use the trademark, corporate name, product
brand or other identifications owned by Party A in the marketing and promotion
activities, Party B shall give its consent for such use and use the same free of
charge.
19. Considering Party B's users are also the users of Party A's mobile
communication services, the Parties shall pay due care to their consistency in
respect of customer benefits and provide quality customer services respectively.
The Parties shall each set up and publicly announce to the users specific
hotline to answer inquiries and complaints from the users, which shall be
resolved in the defined time limit. The hotline of Party A is 1860, and the
hotline of Party B is 0571-85158347.
20. Each Party is responsible to address the users' inquiries or complaints in
the first place and shall not shuffle such inquiries or complaints to the other
Party. The addressing Party shall keep track of the whole process of the users'
complaints and urge the responsible Party for earliest resolution until such
inquiries or complaints are resolved and responded to the users.
Chapter 5 Party B's Representations and Warranties
21. Party B warrants that the services provided by it are lawful and valid.
Party B is responsible to take necessary measures to deal with any information
that is in violation of relevant State laws or regulations in accordance with
the provisions of relevant State laws and regulations, and shall be liable for
any legal liability arising from its breach of this provision.
22. Party B warrants that the return format of SMS Game services in the course
of service operation is consistent with the testing report produced by the
Parties based on the Service Testing Agreement.
Party B shall make it possible for the users to select or cancel the SMS Game
services through mobile phones, the websites of each Party, and vocal
telecommunications. The Monternet SMS Service contemplated hereunder shall not
be provided unless such service is intentionally applied by the users. Party B
shall not provide or transmit to its registered users any service or information
beyond the scope of services applied by such users through the SMS information
system of Party A, nor shall Party B transmit any service or information to any
other mobile communication users of Party A through the SMS information system
of Party A.
23. Where it is possible for the users to apply for the services on website,
Party B shall enter into standard contracts (which may take the form of
electronic copy) with the users with
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respect to the rendering of services. Such standard contracts shall meet the
following requirements:
23.1 The risks to which the users are likely exposed in using such services
(such as transmission failure, mistake or delay) and such wording as stating
that the users are solely responsible for such risks shall be prominently stated
therein;
23.2 The rate and payment terms for the service fee agreed-upon with the users
shall be clearly defined, and the instruction for the users to terminate
services shall be included.
23.3 The users shall be clearly notified that it is agreed that Party B may
terminate the service contracts by notifying the users two weeks in advance on
the website;
23.4 Party B shall state in the service contracts that the users are subject to
the SMS Communication Fee charged by the mobile operators for using Party B's
service, if any.
Party A may amend such compulsory clauses provided above based on its particular
circumstances. Party B shall amend its standard contracts as per Party A's
requirement provided that Party A advises Party B of such requirement two weeks
in advance.
24. If Party B is unable to enter into the standard contract with respect to the
rendering of services due to technical or other limitations, Party B shall meet
the following conditions: such as electronic file. Party A may modify these
conditions based on its particular circumstances. Party B shall make due
modifications as per Party A's requirement provided Party A advises Party B of
such requirement seven days in advance.
25. Party B shall verify the true identity of the users to ensure that the
applicant is the owner of the mobile phone or his/her agent.
26. Party B shall ensure that the caller identity be displayed in any piece of
SMS in addition to any anonymity or nickname when the user sends such piece of
SMS.
Special services, such as chatting or foxmail, is not subject to the preceding
provision, provided, however, that Party B shall ensure that the caller identity
is identifiable and accessible when necessary.
27. Party A is entitled to require Party B to establish a database for Party A's
mobile users independent from such database for other communications operators
or mobile operators. Party A reserves the right to require Party B to deliver
real-time information regarding the users of such services to ensure the
real-time update of Party A's user database.
28. Party B shall keep the users' registered information (such as the service
contracts) for at least two years after the services for such users are
terminated. Operation log shall be kept for at least six months.
29. Party B understands that the users may fail to receive Party B's services if
the mobile phone services of such users are turned off by Party A. If Party A
turns off the users' mobile phone services pursuant to relevant regulations
which causes such users' failure to receive Party B's services, Party A is not
liable for any liability arising therefrom.
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30. During the cooperation, Party B shall comply with relevant provisions of The
Monternet SP Cooperation Administrative Measures of China Mobile (General
Principles), The Monternet SP Cooperation Administrative Measures of China
Mobile (SMS Service Manual), and The Monternet SP Cooperation Administrative
Measures of Zhejiang Mobile, and voluntarily accept Party A's review and
performance appraisal. The review shall be performed in accordance with The
Monternet SP Review Measures of Zhejiang Mobile.
31. During the term of this Agreement, Party B undertakes not to conduct any
business cooperation of the same or similar kind contemplated hereunder with any
other operators in the same industry as party A.
Chapter 6 Confidentiality
32. The Parties are responsible to keep in strict confidence the agreements on
communications standard with respect to the Monternet services, personal
information of the users, communications contents and any confidential
information in connection with the cooperation administration.
33. Except for any disclosure necessary for normal performance of this
Agreement, neither Party shall provide or disclose to any third party any
proprietary information relating to the other Party without the written consent
of such Party. Proprietary information shall include without limitation terms
and conditions of this Agreement, business secrets, computer program, design
technology, idea, know-how, process, data, business and product development
plan, and the users' data and information.
Chapter 7 Breach Liabilities and Compensation
34. Party B shall be responsible to handle or compensate for any claim or
litigation demanded by any user during the course of the Monternet SMS Service.
If Party A is accountable for any such claim or litigation of such user and
Party B has paid compensation to such user, Party A shall compensate Party B to
the extent of the scope of responsibilities of Party A specified under this
Agreement.
35. Any breach of any article of this Agreement by Party A or Party B shall
constitute a breach of this Agreement, and the breaching Party shall be liable
to compensate for any loss thus incurred by the other Party.
36. If Party B breaches Article 22 of this Agreement, i.e., the return format of
the Monternet SMS Service in the course of service operation is inconsistent
with testing report produced by the Parties based on the Service Testing
Agreement, or Party B provides or transmits to its registered users any service
or information beyond the scope of services applied by such user through the SMS
information system of Party A, or Party B transmits any service or information
to any other mobile communication users of Party A through the SMS information
system of Party A, Party B shall be liable to pay Party A liquidated damages in
the amount of 100,000 yuan in addition to compensation for any loss thus
incurred by Party A.
37. Where Party B collects the Information Service Fee from the users by itself,
if Party B fails to make due payment of the Communication Fee payable to Party A
within the time
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limit provided in Article 12 of this Agreement, Party B shall be liable to pay
liquidated damages to Party A in the amount of 0.01% of the overdue payment per
diem.
38. If any complaint from the users arises due to any problem of Party B's
information security, service standards, billing or customer services, Party B
shall immediately take measures to address such problem and compensate Party A
for any loss thus incurred.
39. Party B's breach of any relevant provisions of The Monternet SP Cooperation
Administrative Measures of China Mobile (General Principles), The Monternet SP
Cooperation Administrative Measures of China Mobile(SMS Service Manual), and The
Monternet SP Cooperation Administrative Measures of Zhejiang Mobile shall be
deemed to have damaged the benefits of Party A and its mobile phone users
(including without limitation the subscribers of GoTone or M-Zone services and
premium or ordinary users of the prepaid phone card), and Party B shall
compensate Party A for any loss thus incurred in accordance with the relevant
provisions of The Monternet SP Review Measures of Zhejiang Mobile. Party A may
directly deduct such loss from the Information Service Fee to be collected by
Party A on Party B's behalf subject to consultation and confirmation of the
Parties.
Chapter 8 Termination of this Agreement
40. Any breach of Article 8, Article 32 or Article 33 of this Agreement by Party
A shall constitute a material breach of this Agreement, and Party B may
terminate this Agreement and hold Party A liable for any loss thus incurred.
41. Party A may terminate this Agreement and hold Party B liable for any loss
thus incurred if:
41.1 Party B breaches any of Article 11, Article 21 to 33, Article 38 or Article
39 of this Agreement, and fails to make any significant improvement within one
month after receipt of notice from Party A requesting for any correction
thereof;
41.2 Material or numerous complaints have been received regarding the Monternet
SMS services provide by Party B and Party B fails to make any significant
improvement within one month after receipt of notice from Party A requesting for
any correction thereof;
41.3 In Party A's comprehensive appraisal based on The Monternet SP Review
Measures of Zhejiang Mobile, Party B underperforms in comparison with other
partners of Party A for the same or similar cooperation to such degree that
Party B shall be cleared out;
42. If either Party exercises the right to terminate this Agreement in
accordance with the preceding two articles, each Party shall notify the other
Party of such termination one month in advance and the Parties shall continue to
perform this Agreement during such one-month period.
The users shall always be duly advised and attended by Party B if the service
provided hereunder is terminated for any reason whatsoever, otherwise Party B
shall be liable for any legal liability arising therefrom.
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Chapter 9 Effectiveness and Term of this Agreement
43. This Agreement is effective as of the date on which it is entered into, and
is valid for one year. This Agreement will be automatically extended for another
one year unless either Party advises the other Party to terminate this Agreement
60 days prior to the expiration of this Agreement.
Chapter 10 Dispute Resolution
44. If any dispute arises between Party A and Party B during the performance of
this Agreement or any dispute arises in respect of validity, interpretation or
termination of this Agreement, the Parties hereto shall resolve such dispute
through amicable consultation; if the dispute cannot be resolved through such
consultation, either Party may submit the dispute to Hangzhou Arbitration
Commission for arbitration.
Chapter 11 Miscellaneous
45. It is acknowledged by Party A that Party B shall start to provide the
Monternet SMS services to Party A's users and entrust Party A to collect fees on
its behalf as of May 1, 2003. Pursuant to the requirement of China Mobile Group
Corporation, the Parties shall execute a new copy of this Agreement on May 1,
2003 and the original cooperation agreement shall be terminated thereupon.
This Agreement is made in quadruplicate, and Party A and Party B each shall hold
two copies.
Party A: Zhejiang Mobile Communications Co., Ltd.
Representative: /s/ Si Huilong
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Signed on: May 1, 2003
Party B: Beijing WVAS Solutions Ltd.
Representative: /s/ Xxxx Xxx
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Signed on: May 1, 2003
(Corporate Seal)
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