Exhibit 4.23
This Agreement is made and entered into this day of January 1, 2008 by and between Xxxx.xxx
Technology (China) Co. Ltd. (“Party A”) with its principle address at Xxxxx Xxxxx, 00X, 58 North
4th Ring Road West, Haidian District, Beijing, PRC and Beijing Sina Internet Information Service
Co., Ltd. (“Party B”) with its principle address at Xxxxx Xxxxx, 00X, 58 North 0xx Xxxx Xxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX.
Whereas:
| (1) |
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Party A is a limited company incorporated in the People’s Republic of China (“PRC”). It
posses resources and technologies for website software development and targeted advertising
delivery system. |
| (2) |
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Party B is an internet company registered in PRC, and is engaged in the service of internet
information, online advertising service and value added telecommunication business; |
| (3) |
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Party A agrees to provide Party B with the corresponding online advertising software
application services according to and subject to the provisions of this Agreement, including,
but not limited to, technical support, technical training and technical consultation. Party B
agrees to accept the above services provided by Party A. |
NOW, THEREFORE, in consideration of covenants and agreement herein contained through friendly
consultation, the parties hereby agree as follows:
| 1. |
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Technical services |
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| 1.1 |
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Party A shall according to the terms in this agreement provide any technical services
(including, but not limited to, technical support, technical training and technical
consultation as well as those services listed in appendix I) for online advertising and other
related business operated by Party B. |
| 1.2 |
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Party B shall provide Party A with any and all necessary assistance including, but not
limited to: |
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1.2.1 |
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Urge its employees to take proper, reasonable due diligence when using and
operating the system and the equipment; |
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1.2.2 |
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Inform Party A without any delay of any circumstance that may affect the
business operation of Party B; |
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1.2.3 |
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Allow Party A and its authorized persons to access any site owned or rented by
Party B that stores any system or equipment relating to its business operation at any
reasonable time; |
| |
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1.2.4 |
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Provide any other necessary assistance. |
| 1.3 |
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Both parties agreed, if necessary, the parties will meet under the framework of the
provisions of this Agreement, the technical services for the content, services modalities,
technical personnel and other specific terms or adjusted accordingly. |
| 2. |
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Technical Service Fees and Payment |
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| 2.1 |
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For technical services rendered by Party A, both parties agree hereby that the technical
service fee shall be based on the following formula: |
Technical
services fee = 1,000 Yuan per person per hour * number of person* number of days per
month * number of hours
| 3. |
|
Intellectual property |
| |
| 3.1 |
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Party A shall enjoy monopoly and exclusive rights to all intellectual property rights,
including but not limited to its advertising design and development of any software copyright,
arising from the implementation of this agreement. |
| 4. |
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Confidentiality |
| |
| 4.1 |
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Either party shall keep any confidential material or information (hereinafter referred to as
“confidential information”) of the other party acquired or accessed in signing or performing
this agreement highly confidential and shall not disclose, give or transfer such confidential
information to any third party, unless written approval has been obtained from the other
party. |
| 4.2 |
|
Either party shall return, destroy or dispose any document, data or software carrying
confidential information of the other party to such party in any desirable way upon request
and shall not use such confidential information thereafterwards. |
| 4.3 |
|
Both parties agree that regardless of changes, cancellation or termination to the agreement,
the provisions will remain in effect. |
| 5. |
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Declaration and guarantee |
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| 5.1 |
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Party A declares and guarantees |
| |
5.1.1 |
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Party A is a company legally incorporated and existing under
the laws of PRC; |
| |
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5.1.2 |
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Party A signs and performs the obligation prescribed in this agreement under its
authority and business scope, and has carried out proper authorization within the
company; which do not constitute any breach of any restriction of legal documents
binding upon such party |
| |
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5.1.3 |
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This Agreement shall become effective, legally binding and enforceable on the
date of its being signed. |
| 5.2 |
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Party B declares and guarantees: |
| |
5.2.1 |
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Party B is a company legally incorporated and existing under
the laws of PRC; |
| |
| |
5.2.2 |
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Party B signs and performs the obligation prescribed in this agreement under its
authority and business scope, and has carried out proper authorization within the
company; which do |
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not constitute any breach of any restriction of legal documents
binding upon such party |
| |
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5.2.3 |
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This Agreement shall become effective, legally binding and enforceable on the
date of its being signed. |
| |
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5.2.4 |
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Party B’s advertisements do not violate any use of laws, regulations or
governmental policies |
| 6. |
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Force Majeure |
| |
| 6.1 |
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When the implementation of this agreement was delayed or hampered, due to any “Force
Majeure”, the affected party shall not be liable under this agreement to the event caused by
“Force Majeure “. “Force Majeure event” means event that cannot be avoided, when a party had
exercised reasonable control and the affected party had already exercised reasonable
attention, including but not limited to, acts of government, natural forces, fire, explosion,
geographical changes, storms, floods, earthquakes, tidal, lightning or war. However, financial
information, insufficient funds or financing should not be considered as event that beyond one
party’s reasonable control. Party affected by the “force majeure events” shall notify the
other party the “force majeure events” and inform the other party of the procedures necessary
to implement the responsibilities under this agreement so as to seek a waiver from this
agreement or a waiver from any responsibility under any provision of this agreement. |
| 6.2 |
|
The affected party of the “Force Majeure event” is not liable under this Agreement only when
the affected party has made reasonable efforts to implement feasible responsibility of this
agreement. A waiver of liability is limited to the portion of delay or hamper caused by the
“Force Majeure event”. Once such exoneration reasons rectified or remedied, both parties
agreed to resume the best efforts to make the agreement fulfilled. |
| 7. |
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Effectiveness and Early Termination |
| |
| 7.1 |
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Other than early terminated according to this agreement, this agreement is valid for one year
from January 1, 2008 to December 31, 2008. Prior to the expiration of the initial term, this
agreement can be renewed upon written confirmation by both parties. |
7.2 Without cause harm to the rights or subsidy of the party which initiate the termination
according the laws, this agreements or other documents, either party shall have the right to
terminate this Agreement immediately by giving written notice to the other party in the event that
the other party commits any breach of any of the provisions of this Agreement and, in the case of a
breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice
giving full particulars of the breach and requiring it to be remedied.
| 8. |
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Settlement of Disputes and Governing Laws |
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| 8.1 |
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The Parties shall settle with good faith all disputes regarding to interpretation and
enforcement of |
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| |
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any provisions of this Agreement by consultation. The disputes that are failed
to be resolved by consultation shall be referred to China International Economic and Trade
Arbitration Committee for arbitration according to its existing arbitration rules. The place
of arbitration shall be in Beijing; and
the language used in arbitration shall be Chinese. The decision of arbitration shall be final
and binding upon both parties hereto. |
| 8.2 |
|
Laws and regulations of PRC shall be applied for conclusion, execution, interpretation and
settlement of disputes concerning this agreement. |
| 9. |
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Miscellaneous |
| |
| 9.1 |
|
Both parties may make amendments and supplements to this Agreement in written form. The
amendments and supplements sighed by both parties shall be part of this Agreement with equal
legal force. |
| 9.2 |
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If any provision of this Agreement is entirely or partially invalid or unenforceable for the
reason of violating laws or government regulations or other reasons, the affected part of such
provision shall be deemed as deleted. But deleting the affected part of such provision shall
not impose any effect upon the legal effect of other part of such provision and other
provisions of this Agreement. |
| 9.3 |
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Without written consent from the other party, each party shall not transfer its rights and
obligations under this agreement to any third party. |
| |
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Xxxx.xxx Technology (China)Co. Ltd.
|
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Beijing SINA Internet Information
Service Co., Ltd. |
|
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/S/
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/S/ |
Authorized Representative
|
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Authorized Representative |
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Appendix 1: Contents of Internet Advertisement Publishing
Technical Service
Both parties agree hereby that the contents of the technical service specified by this agreement
shall include, but not limited to, the following:
| 1 |
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Technical Support for Web Advertising |
| |
| 1.1 |
|
Party A agrees hereby to provide technical service in connection with web advertising to party
B, including, but not limited to the following: |
| |
| 1.1.1. |
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Development, update and upgrade of software for Internet advertisement publishing; |
| |
| 1.1.2. |
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Installation and debugging of software for Internet advertisement publishing; |
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| 1.1.3. |
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Technical maintenance of software for Internet advertisement publishing; |
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| 2 |
|
Technical Training |
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| 2.1. |
|
Party A agrees hereby to provide the following training service to party B and its staffs: |
| |
| 2.1.1. |
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Skill training for Installation and operation of the equipment and facilities; |
| |
| 2.1.2. |
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Training Service for customers service and technology or others; |
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| 2.1.3. |
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Training for application of online editing software. |
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| 3 |
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Technical Consultation |
| |
| 3.1. |
|
Provide consultation service for the purchase of equipment and software and hardware system needed for network operation developed by party
B, including, but not limited to technical advice for selection, systematic installation and debugging of tool software, internet
applications and technical platform as well as purchase, type and performance of suitable hardware facilities and equipment. |
| |
| 3.2. |
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In relation to technology project specified by party B, Party A agrees to provide
technical consultation service including technical argument, technical forecast, technical
Investigation for specific subject, report of analysis and assessment to party B
|
| |
| 3.3. |
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Provide technical consultation for application of network software, hardware, equipment and online
editing software of
the system set or
to be set by party
B. |
| |
| 3.4. |
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Provide the following information to party B: domestic, oversea and party B’s network service including investigation, analysis and
assessment report of trend, technology, cost
and income of special network service. |
| |
| 3.5. |
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Party B may make problem inquiry or function consultation on specific technical problems through Email, telephone, fax and
the engineers of party A shall assist Party B
to settle such problems for clients. |
| |
| 3.6. |
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In case of any emergency out of Party B’ control, the engineers of Party A may log into
the websites via telnet to inspection and system and then solve the problems after
obtaining consent from Party A. |
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| 3.7. |
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Party A may meet the requirements of other technical consultations proposed by party B within its
compass. |
[Text ends]
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