China United Telecommunications Corporation Mobile Value-added Services Cooperation Agreement Main Agreement Number: CUVAS-A2005-0024 (Translated from Chinese) Party A: China United Telecommunications Corporation Party B: Beijing AirInbox Information...
Exhibit
4.29
China
United Telecommunications Corporation
Main
Agreement Number: CUVAS-A2005-0024
(Translated
from Chinese)
Party A: China
United Telecommunications Corporation
Party B: Beijing
AirInbox Information Technology Co., Ltd.
Signing
Date: February 2, 0000
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Xxxxx
Unicom
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Contents
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Preamble
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Chapter
1
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Objective
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Chapter
2
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Definition
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Chapter
3
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Business
Cooperation Scope and Business Interface
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Chapter
4
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Customer
Service Management
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Chapter
5
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Security
of Mobile Value-added Services
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Chapter
6
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Billing
and Settlement
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Chapter
7
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Intellectual
Property Rights and Confidentiality Provisions
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Chapter
8
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Liability
for Breach and Dispute Settlement
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Chapter
9
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Force
Majeure
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Chapter
10
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Amendments
or Termination of the Agreement
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Chapter
11
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Withdrawal
Mechanism
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Chapter
12
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Contact
Person and Bank Account Numbers
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Chapter
13
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Effectiveness
and Other Matters
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Appendix 1
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Maintenance
Interface of the Parties and Maintenance Responsibility
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Appendix 2
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Letter
of Responsibility from the Information Source for the Guarantee of
Information Security
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Appendix 3
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Party B’s
Basic Information for the Operation of Mobile Value-added
Services
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Signature
Page
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2
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Appendix 4
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SMS
Service
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Appendix 5
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Voice
Value-added Service
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Appendix 6
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WAP
Service
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Appendix 7
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Color
e-Service
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Appendix 8
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BREW
Service
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Appendix 9
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JAVA
Service
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Appendix 10
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Location
Service based on SMS Platform
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Appendix 11
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Location
Service based on WAP Platform
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Appendix 12
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Location
Service based on BREW Platform
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Appendix 13
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Location
Service based on JAVA Platform
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Appendix 14
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Handheld
Stock Market Service based on Securities e-Commerce
Platform
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Appendix 15
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Power
of Attorney and signature specimens of designated
signatories
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3
Preamble
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1.
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This
Cooperation Agreement is entered into by and among the two parties
below
on in
Beijing:
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China
United Telecommunications Corporation (called “Party A” hereinafter) is a
company established in accordance with the PRC law and validly existing with
its
address at Xx. 000X, Xxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx.
Its legal representative is Xxxxxxxx Xxxxx;
Beijing
AirInbox Information Technology Co., Ltd. (called “Party B” hereinafter) is
a corporate established in accordance with the PRC law and validly existing
with
its address at the 33rd Floor, Tengda Building, Xx. 000, Xxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx. Its legal representative is Xxxxxx
Xxxx.
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2.
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Application
scope: This Agreement consists of the main body and a number of
appendixes. The main body of the Agreement sets forth the rights
and
obligations that should be exercised and performed by the Parties,
regardless of the type of business that is carried out. The Appendixes
set
forth the detailed rights and obligations of the Parties according
to the
classification of businesses. Party A shall provide the relevant
services when Party B makes a request to Party A to cooperate in
certain types of businesses. In addition to the main body of the
Agreement
(including Appendixes 1, 2 and 3) that must be signed, the Parties
may sign Appendix 15 at their option and sign the following
appendixes according to the type of business that is the subject
of the
parties’ cooperation. (lease refer to the relevant appendixes for the
appendix numbers.):
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(1)
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SMS
Service: Appendix 4
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(2)
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Voice
Value-added Service:
Appendix 5
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(3)
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WAP
Service: Appendix 6
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(4)
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Color
e Service :Appendix 7
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(5)
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BREW
Service: Appendix 8 (including Attachment 1 and
Attachment 2)
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(6)
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JAVA
Service: Appendix 9
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4
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China
Unicom
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(7)
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Location
Service based on SMS Platform:
Appendix 10
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(8)
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Location
Service based on WAP Platform:
Appendix 11
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(9)
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Location
Service based on BREW Platform:
Appendix 12
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(10)
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Location
Service based on JAVA Platform:
Appendix 13
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(11)
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Handheld
Stock Market Service based on Securities e-Commerce Platform:
Appendix 14
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(12)
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The
Parties may sign one or more appendixes, which shall be an inseparable
part of this Agreement and have the same legal effect as the main
body of
this Agreement.
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Party A
may provide any other mobile value-added services in future and any cooperation
with Party B in connection with any such mobile value-added services shall
be set forth in a separate appendix. If Party A and Party B have
entered into this Agreement, any appendixes in connection with any such new
mobile value-added services shall be deemed to be a part of this Agreement,
regardless of whether the appendixes have been signed at the same time. If
the
Parties have not entered into this Agreement, in addition to any appendixes
entered into in connection with any new mobile value-added services,
Party A and Party B shall enter into the main body of this Agreement
(including Appendix 1, Appendix 2 and Appendix 3), as well as
Appendix 15 at their option.
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3.
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Party A
and Party B may enter into one or more appendixes according to their
cooperation in the operation of any mobile value-added services.
If
Party A and Party B plan to have more cooperation in connection
with any mobile value-added services, they shall negotiate with each
other
to enter into the corresponding appendixes listed in the second item
of
this Preamble.
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4.
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Party A
and Party B shall comply with the provisions specified for certain
special businesses under the relevant appendixes attached to the
Agreement
and if there is any conflict between the main body and any appendix,
the
provisions of the relevant appendix shall prevail. Reference shall
be made
to the definitions under the main body of the Agreement for any words
used
herein and unless otherwise defined or agreed in an appendix. Any
words
that have not been specially defined under the Agreement shall be
interpreted in accordance with the contents of the Agreement and
the
relevant Appendixes. For any words that cannot be interpreted, reference
shall be made to the actual conditions, industrial practices and
standard
interpretations issued by the Ministry of Information
Industry.
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5
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China
Unicom
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Chapter
1 Objective
Whereas:
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1.1.
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Party A,
authorized by the State Department’s information industry department, is a
telecom company that provides basic and value-added telecom businesses
to
the public nationwide and it has its own basic telecom networks,
data
service platform, service distribution system and large customer
base.
Party A has the full power to enter into and perform this
Agreement.
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1.2.
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Party B
is a Content Provider (CP)/Service Provider (SP) that legally provides
mobile value-added services and content and has the qualifications
to
cooperate in the businesses under this Agreement. It has acquired
the
following qualification
certificates:
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a.
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Enterprise
Legal Person Business License with the number of
1101082373236(1-1);
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b.
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Operating
Permit for Telecommunication and Information Services with the number
Jing
ICP Zheng No. 020001; and
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c.
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Operating
Permit for Telecommunication Value-added Services with the number
B2-20040152 or any other qualification certificates evidencing that
Party B is qualified in carrying out the business cooperation with
Party A as applied;
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d.
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Any
other certificates which are recognized by Party A and which evidence
that Party B is qualified and/or has passed any relevant business
testing.
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If
it is
necessary, Party A may ask Party B to provide copies of the above
certificates and attach them to this Agreement when executing this
Agreement.
Party B
hopes to provide mobile value-added services based on Party A’s mobile
communication network and data service platform. Party B has the full power
to enter into and perform this Agreement.
Subject
to the above conditions:
The
Parties, based on the principle of equality, mutual benefit and complementing
advantages and on the objective of developing and enriching mobile value-added
services and achieving win-win, hereby enter into this Agreement.
6
Chapter
2 Definition
This
Agreement has the definitions for the following words. For any other relevant
words that are not defined under this Agreement, reference shall be made to
the
applicable laws and regulations or the definitions specified under the PRC
law
or by the governmental authorities and if there are no such interpretations
under the relevant laws and regulations, reference shall be made to the
industrial practices.
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2.1.
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CP/SP
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CP
is the
abbreviation of Content Provider. The CP referred to in this Agreement refers
to
the providers that only provide information source for services.
SP
is the
abbreviation of Services Provider. The SP referred to in this Agreement means
the specialized service institution that provides communications and information
services. SP may be network operators or anyone that provides the full services
to customers by integrating businesses of other network providers.
In
this
Agreement, “CP/SP” means any specialized institutions that would like to
cooperate with Party A and provide various types of mobile value-added
services to all mobile communications network subscribers of Party A by
using Party A’s mobile communications network and data service
platform.
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2.2.
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User
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User
is
defined as the natural person, legal person or other entity that uses mobile
terminals or other telecom terminals authorized by Party A to access
Party A’s mobile communications networks and data service platforms and
willingly accept mobile value-added services provided by Party A and
Party B.
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2.3.
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Mobile
Value-added Services
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The
mobile value-added services are defined as the businesses of telecommunication
and information services provided through Party A’s mobile communications
networks.
7
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2.4.
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Mobile
Communications Networks and Data Service
Platforms
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In
this
Agreement, mobile communications network means the infrastructure provided
by
Party A for mobile communication services. Data service platform is the
business platform aiming at one or more added data services on the basis of
the
mobile communications networks, including but not limited to providing services
such as user interface, CP/SP interface, business management and
billing.
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2.5.
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Business
Support System
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The
business support system is defined as the user management system required for
normal business operations and systems used for the recognition, billing,
settlement and accounting.
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2.6.
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Communication
Channel
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The
communication channel is defined as the physical and logical connections
provided for communications between users in mobile communication
system.
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2.7.
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Ports
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Port
is
defined as the interface setting (including communication address and relative
parameters) when communication interconnections are established between data
service platforms and mobile communication networks or data service platforms
and application servers provided by CP/SP.
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2.8.
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Data
Flux
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Data
flux
is defined as inbound and outbound communications through data service
platforms.
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2.9.
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Testing
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Testing
means the checking and testing of businesses provided by CP/SP with certain
tools and methods, which may include network connection testing, interface
coherence testing, function testing and so on to ensure that businesses are
in
compliance with the requirements of connection and operation. Testing period
means a period of time required for testing or a period of time that
Party A considers should be spent on such testing.
8
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2.10.
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Buffer
Period for Withdrawal
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When
there is a need to terminate the CP/SP services, in order to reduce the damages
that may be caused to users due to the termination, CP/SP will inform users
in
an appropriate way some time before the termination of services and during
this
period Party B shall continue to provide services to users in accordance
with the contracts with users. Such time period shall be the buffer period
for
withdrawal.
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2.11.
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Equipment
Connection Point
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Equipment
connection point is defined as the connection location between two physical
or
logical equipment.
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2.12.
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Maintenance
Interface
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The
whole
service system for providing services to users is composed of several different
parts, and the maintenance responsibilities are allocated to different persons
and the maintenance interface is the location to allocate the maintenance
responsibilities among different persons.
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2.13.
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System
Maintenance
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System
maintenance is defined as the work required for daily maintenance, malfunction
maintenance and so on in order to ensure that the service system will operate
normally.
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2.14.
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Gateway
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Gateway
is the facilities to provide functions such as protocol transformation and
system interconnection.
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2.15.
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User
Customization
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Subject
to the determination by user of the detailed requirements for the acceptance
of
service contents, user willingly requests for services.
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2.16.
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7
X
24 hours
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Seven
days a week and 24 hours each day without holidays.
9
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2.17.
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Communication
Charges
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Charges
incurred for the use of Party A’s network resources by users or CP/SP.
Communication charges shall be billed by Party A to users or CP/SP and
payments shall be made to and owned by Party A.
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2.18.
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Information
Service Charge
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Information
service charge is the fee for using content information or application service
provided by CP/SP other than any communication charges. For the services
provided by Party A, such as access service, customer service, xxxxxxxx for
others and collections for others, Party A and Party B shall allocate
the information service charges proportionally. “Information service charge
receivable” means the fees that be charged to users and have not been allocated
by Party A and Party B.
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2.19.
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Enterprise
Code Number
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Enterprise
code number is the abbreviation of “China Unicom Mobile Value-added Services
CP/SP Enterprise Code Number”, which is used by Party A as the sole
enterprise identification for Party B.
Chapter
3 Business
Cooperation Scope and Business Interface
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3.1.
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Party A
non-gratuitously provides communication channels and its network
user
resources to Party B and non-gratuitously provides access service,
customer service, billing services and collection services to Party B
through its customer service, billing and business support
systems.
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3.2.
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The
enterprise code number used by Party A for Party B is
90300.
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3.3.
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Party A
guarantees the exclusivity and stability of the enterprise code number
obtained by Party B and the Parties acknowledge that in
Party A’s systems, including, but not limited to, the billing and
settlement system, data service platform system and customer service
system, the enterprise code number assigned by Party A to
Party B shall have the same effectiveness as the enterprise name of
Party B’s legal person entity.
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3.4.
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Party B
provides the mobile value-added services to users through Party A’s
mobile communication network and data service platform. The detailed
items, such as the categories of mobile value-added services, business
description, methods of billing and settlement, withdrawal mechanism,
shall be set forth in the relevant appendixes
separately.
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10
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China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
3.5.
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If
Party B wants to carry out certain mobile value-added services, add
certain mobile value-added services to its current list or change
any
existing value-added services, Party B should submit a written
application to Party A and attach any documents evidencing that it
has the qualifications for the operation of such services, as well
as any
documents evidencing that it has passed the relevant tests of by
Party A. At Party B’s request, Party A shall have the
responsibilities to issue any written evidencing documents at the
conclusion that Party B has the ability for the operation of any such
mobile value-added services after the testing of Party B’s
business.
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3.6.
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Party B
shall keep users fully informed of the information required for the
acceptance of any value-added services and/or payments of information
service charges such as the contents, manner and charges of any such
value-added services before providing the services to users in any
manner.
Only after Party B has fully informed users in an evidencing manner
and obtained the confirmation from users for the acceptance of any
such
value-added services and/or the specified customization in an evidencing
manner, Party B may start to provide the relevant services to users.
Without Party A’s prior written consent, Party B cannot use any
“implied acceptance by customers”, “acceptance would be deemed to have
been made unless cancellation is made through calling or sending
short
messages” or any other mandatory ways to require customers for
customization and payment, or any methods that would impose unnecessary
additional burdens on users.
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3.7.
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During
the term of this Agreement, the equipment connection point shall
be the
boundary between Party A and Party B for the maintenance of
their own interface. Please refer to Appendix 1 for details on the
boundary division and maintenance
obligations.
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3.8.
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During
the term of this Agreement, Party B shall provide Party A with
the relevant data reports on the user development, user classification,
user habits, business prospects and forecasting according to
Party A’s requirement and promptly send user information required in
the business management to Party A in order to ensure the real-time
updating of Party A’s user
database.
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11
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China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
3.9.
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In
the operation of any value-added services, Party B agrees to comply
with the administrative measures, business quality standards, customer
service standards and any other relevant provisions that have been
provided for or will be provided for from time to time for any value-added
services. Before the official announcement and implementation of
any such
administrative measures, quality standards and/or customer service
standards, Party A shall provide Party B with the official
versions for its compliance.
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3.10.
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During
the term of cooperation, any new mobile value-added services to be
added
or any changes to be made to the business scope or prices by Party B
shall be subject to Party A’s pricing testing and to the written
approval Party A.
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3.11.
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Party A
and Party B may, based on their needs, separately or jointly promote
any mobile value-added services in various
manners.
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3.12.
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Party A
and Party B may negotiate to label Party A’s name, trademark or
logo or the names, trademarks or logos of certain services on any
services
jointly provided by them and promote and market mobile value-added
services. However, without the request or confirmation from Party A,
Party B shall not use Party A’s name, trademark or logo in any
content services provided to customers by Party B such that customers
misunderstand that any such content services are provided by Party A
or jointly by Party A and
Party B.
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3.13.
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Only
with Party A’s request or written consent may Party B use
Party A’s name, trademark or logo and any other relevant materials
relating to Party A in the promotion of mobile value-added services
conducted solely by Party B. In addition, Party B shall
guarantee that under any circumstances, it will not infringe the
trademark
or any other intellectual property rights of
Party A.
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3.14.
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Party B
shall not, in the content services and/or any other promotion activities
carried out by Party B, promote any competitors whose business scope
is the same as or similar to Party A’s or make any statement
favorable to Party A’s competitors. Any acts that violate the
provisions of this clause shall be deemed as a material
breach.
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3.15.
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Any
liabilities caused by any mobile value-added services provided to
users in
any manner by any third party through Party B’s maintenance interface
shall be borne by Party B. Party A shall not bear any
responsibility to users and any such third
parties.
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12
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
3.16.
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Party B
agrees to accept any changes to be made by Party A to the business
and billing methods that are necessary for business development and
Party B will provide Party A with any required business
data.
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Chapter
4 Customer
Service Management
|
4.1.
|
The
Parties shall set up their own 24-hour customer service hotline centers
and customer service E-mail boxes.
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4.2.
|
Party A
will transfer any issues that are not related to Party A, but have
been received by Party A’s customer complaint centers or consultation
centers (1001 customer service hotline) to Party B for its handling
and Party B shall give a preliminary reply or directly reply to the
relevant customers within one hour. Party B shall be responsible for
solving the relevant issues.
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4.3.
|
Party B
shall not ask any users to contact Party A directly as it thinks that
any requests for consultation or complaints received by it are related
to
Party A. If Party B considers that any requests for consultation
or complaints received by Party B are indeed related to Party A,
Party B’s customer service staff or customer service system shall
assist Party A to analyze and solve the relevant issues and contact
Party A within one hour from the receipt. Subject to the confirmation
from Party A, the relevant issues may be transferred to
Party A.
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4.4.
|
If
one Party is not able to determine which party is responsible for
the
consultation requests or complaints it receives, the receiving Party
shall
contact the other Party within one hour of the receipt. The receiving
Party shall find out which party is responsible and help customers
solve
the relevant issues as soon as possible. The Parties shall not pass
issues
to each other.
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4.5.
|
Pursuant
to the categories of the cooperative businesses, Party B shall give a
detailed description of the services to be provided to users in its
application for the operation of such businesses. An attachment shall
be
submitted if necessary.
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4.6.
|
Party B
shall grant the authorization and provide the network connection
to
Party A’s customer service staff in relation to service enquiries and
service cancellation.
|
13
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Chapter
5 Security
of Mobile Value-added Services
|
5.1.
|
Party A
shall have the right to carry out necessary testing and to gather
statistical data at any time in connection with the services provided
by
Party B during any business hours if necessary. On the basis of the
testing results, Party A shall have the right to ask Party B to
make any adjustments pursuant to Party A’s management guidelines on
the mobile value-added services.
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5.2.
|
Party A
shall have the right to control and adjust the data flow and ports
that
are subject to Party A’s maintenance and Party A shall keep
Party B informed of the
results.
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5.3.
|
Party B
shall guarantee that there shall be no major inherent problems in
its
services that may cause and that its services shall not be used by
others
to cause any damages to Party A’s mobile communication networks, data
business platforms or users’
interests.
|
|
5.4.
|
Party B
must comply with the relevant telecommunication and Internet laws,
regulations, orders and policies promulgated by the state. Party B
shall guarantee that any information service contents provided by
it will
not violate the relevant state laws, regulations and policies and
it will
not use Party A’s system to distribute the nine categories of illegal
information listed in the Letter of Responsibility from the Information
Source for the Guarantee of Information Security (see
Appendix 2).
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|
5.5.
|
Party B
shall be responsible for settling all the disputes that may arise
due to
the security and legitimacy of the information contents provided
by
it.
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5.6.
|
Any
violation by Party B of the provisions of Article 5.4 shall be deemed
to be a material breach of this Agreement. Party B shall compensate
Party A for any economic damages caused to Party A’s business
operation by Party B’s violation of Article 5.4. If
Party B’s violation of Article 5.4 has caused any negative impact to
Party A in the society, Party B shall make a public statement
for its liabilities and apologize to Party A
publicly.
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|
5.7.
|
When
Party A sends various data or information to Party A’s
communication platforms, Party B shall guarantee that the data flow
would not cause any damage to the network’s safe capacity. Party A
shall have the right to limit any transmission of any abnormal amounts
of
data or information that overload and affect the safe operation of
Party A’s network.
|
14
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Chapter
6 Billing
and Settlement
|
6.1.
|
Party A
shall price the communication fees, and subject to Party A’s
approval, Party B shall price the information service fees.
Party A shall be responsible for the billing and collection of
communication fees and information service fees and Party B shall not
charge any fees to users.
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6.2.
|
In
pricing the information service fees, Party B may provide various
options to users, such as billing by the number of information pieces,
billing by timing and monthly fees.
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6.3.
|
The
various communication fees incurred by users or Party B through the
use of Party A’s mobile communication networks shall be paid to
Party A.
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6.4.
|
The
Parties shall make a settlement of the information service fees receivable
and subject to the deduction of 8% for bad debts from the information
service fees receivable and to the deduction of any other expenses
recognized by both parties, information service fees receivable shall
be
distributed to the Parties proportionally. Party A’s share is based
on the following services that it provides: resources for mobile
communication network users, relevant business platforms, business
testing
and quality control services, unified customer services and business
promotion and information fee collection and/or billing
services.
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6.5.
|
The
proportion for the distribution of information service fees, the
billing
and settlement of certain mobile value-added services and other relevant
matters shall be provided for in the relevant appendix relating to
such
service.
|
|
6.6.
|
Before
each settlement period, Party B shall make reconciliation in
connection with any information service fees receivable with Party A.
If the difference between the statistical data from the Parties is
not
more than 5%, the data provided by Party A shall prevail and if the
difference is more than 5%, the Parties shall make another verification
to
find out the reasons and promptly and reasonably resolve the issue
based
on the circumstances. Any delay caused to Party A in any payment by
any such reconciliation shall not be deemed as Party A’s breaching of
its payment obligation.
|
|
6.7.
|
If
any user refuses to pay any information service fees because of
Party B’s service quality, Party B shall, in addition to paying
to Party A the communication fees for the use of Party A’s
mobile communication networks, pay to Party A the portion of the
information service fees to be received proportionally by Party A in
accordance with the provisions of the relevant appendix relating
to such
services.
|
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|
6.8.
|
Pursuant
to the data provided by Party A, Party B shall provide its
business fee standards to Party A and the final fee standards shall
be subject to Party A’s confirmation. Any changes made to the fee
standards by Party B shall be subject to Party A’s review before
the implementation.
|
|
6.9.
|
Settlement
Period
|
|
(1)
|
The
Parties shall make a settlement every
month.
|
|
(2)
|
Settlement
Period: The settlement period for China Unicom’s value-added services is
every calendar month.
|
|
6.10.
|
Settlement
Process
|
|
(1)
|
For
the first month of the use of mobile value-added services by a
user;
|
|
(2)
|
Party B
may make reconciliation for information service fee receivable with
Party A before the 15th day of the second month and if the difference
is more than 5%, then the Parties shall solve the issue through
consultation. Party B shall send the reconciliation statements and
invoices to Party A’s contact person before the 25th day of the
second month;
|
|
(3)
|
Party A
shall make a payment to Party B’s designated account before the
28th day of the third month;
|
|
(4)
|
If
Party B is unable to send the reconciliation statements and invoices
to
Party A before the 25th day of the second month due to
Party B’s reason or due to Party B’s failure in the
reconciliation, Party A shall have the right to postpone the payment
for such month to Party B to the end of the coming quarter upon the
receipt of Party B’s reconciliation statements and invoices. (This
shall not be deemed as a delay for payment as set forth in this
Agreement.)
|
|
6.11.
|
At
Party A’s request, Party B shall provide Party A with an
official receipt for each payment.
|
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|
6.12.
|
Party A
shall make a full payment of any settled information service fees
within
the time as agreed by the Parties. Any payments to be made by Party A
shall be made to the bank account set forth under Article 6.13 of
this Agreement.
|
|
6.13.
|
Party B’s
bank information: See
Appendix 3.
|
Chapter
7 Intellectual
Property Rights and Confidentiality Provisions
|
7.1.
|
All
the issues relating to the copyrights, trademarks, patents and any
other
intellectual property rights involved in the Parties’ cooperation shall be
in compliance with the state’s relevant laws and regulations. Party B
shall enter into any necessary authorization/license agreements with
the
relevant intellectual property right owners/right holders or their
agents
in accordance with the relevant state regulations in order to ensure
that
any mobile value-added services provided by Party B will not infringe
the legitimate interests of any relevant intellectual property right
owners/right owners. Party A shall not bear any liability for any
dispute with third parties on any intellectual property rights caused
by
any contents of the services provided by
Party B.
|
|
7.2.
|
Party B
shall be responsible for the settlement of all the disputes that
may arise
due to the security and legality of the contents of the information
services provided by it. Party B undertakes and guarantees that the
information services provided by it will not infringe any intellectual
property rights or other civil rights of any third party. Party B
further undertakes to take the liability for the compensation of
any
litigation, claim, administrative penalties, losses and damages caused
by
the violation of any of the above undertakings and
guarantees.
|
|
7.3.
|
Party B
guarantees that in the operation of mobile value-added services,
especially location services, Party B shall comply with the relevant
state regulations relating to the basic civil rights (including,
but not
limited to, the privacy rights) involved in the operation of mobile
value-added services. Party B shall keep its users fully informed of
the nature of the services, scope of application and relevant laws
and
regulations in the customization by users, introduction or promotion
to
users and provision of the location services. In addition, Party B
may only provide the location services to users after they fully
and
completely understand the services and accept the services to be
provided
by Party B (if necessary, Party B shall present any written
materials to evidence that users fully and completely understand
the
services and accept the services). Party B shall not use users’
location information published due to the location services (one,
various
or comprehensive) for any other purposes that have not been identified
by
users in their customization. In addition, for the location services
provided to any special industries, the Parties shall strictly comply
with
the relevant state regulations, regardless of whether or not such
state
regulations have been promulgated or implemented before or at the
execution of this Agreement or the relevant
appendixes.
|
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|
7.4.
|
Party A
may design, create and register any trademarks, service marks or
logos for
its mobile value-added services and conduct any marketing and promotion
activities with these trademarks, service marks or logos. If Party A
and Party B jointly conduct such marketing and promotion activities
(hereinafter called “Joint Promotion”), the Parties shall set forth the
details as agreed for the Joint Promotion in the relevant business
appendix or enter into a cooperation agreement separately for the
Joint
Promotion if necessary. The Parties hereby agree that the purpose
of the
Joint Promotion is to have a better operation of any such mobile
value-added services and any Joint Promotion by the Parties or any
activities carried out for the Joint Promotion shall not infringe
the
trademarks, intellectual property rights or industrial property rights
of
Party A, Party B and/or a third party. If either Party A or
Party B has infringed the trademarks, intellectual property rights or
industrial property rights of the other Party or a third party, the
infringing Party shall take all the liability for such infringement,
compensate any economic losses that may be incurred by the other
Party and
be liable to eliminate any negative impact caused by the infringing
Party
to the society.
|
|
7.5.
|
The
Parties have the responsibility for the confidentiality of the contents
of
the cooperation and this Agreement and without the prior written
consent
of the other Party, any Party shall not disclose the contents of
this
Agreement and any other related information to any third
party.
|
|
7.6.
|
During
the term of this Agreement and the five years from its expiration,
neither
Party shall disclose or provide any trade secrets (including financial
secrets), technology secrets, know-how and/or any other confidential
information to any third party (whether in written or oral form or
in any
other form).
|
|
7.7.
|
During
the valid term of this Agreement and the five years from its expiration,
the Parties shall have the confidentiality obligations for any trade
secrets (including financial secrets), technology secrets, know-how
and/or
any other confidential information created in the performance of
this
Agreement (whether written or oral form or any other form of information)
and without the consent of the other Party, no Party shall make a
disclosure to any third party.
|
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Chapter
8 Liability
for Breach and Dispute Settlement
|
8.1.
|
The
Parties shall strictly comply with the provisions of this Agreement
and it
shall be deemed as a breach if any Party causes any damage to the
other
Party’s interest or the suspension of the cooperation due to the
non-performance of its obligations, guarantees or undertakings or
due to
the violation of any representations made
herein.
|
|
8.2.
|
If
the breaching Party has caused any negative impact on the society
or
economic losses, the non-breaching Party shall have the right to
claim
against the breaching Party, request the breaching Party to eliminate
such
impact and to pay compensation for such economic losses, and to terminate
this Agreement.
|
|
8.3.
|
The
Parties shall settle any disputes that may arise in connection with
this
Agreement in a cooperative manner through good faith
negotiations.
|
|
8.4.
|
The
Parties agree that any dispute that may arise in connection with
this
Agreement, if it cannot be settled through negotiation, shall be
submitted
to the Beijing Arbitration Commission for arbitration in accordance
with
its arbitration rules. The arbitration award shall be final and binding
to
the Parties. Arbitration shall be conducted in
Chinese.
|
|
8.5.
|
The
construction, execution and interpretation of this Agreement shall
be
governed by the PRC law.
|
Chapter
9 Force
Majeure
|
9.1.
|
“Force
Majeure” is defined as all the events which the Parties of this Agreement
could not control or foresee or could foresee but would prevent any
Party
from performing all or any part of this Agreement. These events shall
only
include natural disasters, such as earthquake, landslide, sinking,
flood,
typhoon, and astronomic abnormality, and accidental events, such
as fire,
explosion, accident, war, rebellion, uprising, mutiny, social turbulence,
terrorist events, or other similar or different incidental
events.
|
|
9.2.
|
If
any Party cannot perform any of its obligations because of any force
majeure event, such Party shall not be liable for losses incurred
by the
other Party.
|
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|
9.3.
|
The
Party that is involved in any force majeure event shall immediately
inform
the other Party of the event in writing and shall provide within
15 days the valid certificates issued by the governmental authorities
with the description of the events and the reasons that it cannot
perform
all or any part of this Agreement or any delay for its performance.
Based
on the impact of the force majeure event on the performance of the
Agreement, the Parties shall consult with each other and decide whether
to
continue the performance of this Agreement or terminate this
Agreement.
|
Chapter
10 Amendments
or Termination of the Agreement
|
10.1.
|
During
the term of the cooperation, if Party A has formulated any relevant
administrative regulations, quality standards and/or customer service
standards in connection with any mobile value-added services, these
administrative regulations, quality standards and customer service
standards shall be deemed to be the supplements to the Appendixes,
which
the Parties shall comply with. If any of the above administrative
regulations and/or standards conflict with any provisions of this
Agreement, the administrative regulations and/or standards shall
prevail.
Notwithstanding that, the Parties may consult with each other and
may
consider this Agreement to be applicable or if necessary, enter into
a
separate agreement in connection with any such
conflict.
|
|
10.2.
|
Either
Party shall inform the other Party 15 days in advance if it intends
to make any amendments of this Agreement. The Parties shall consult
with
each other and any amendments shall be made in
writing.
|
|
10.3.
|
Except
for the circumstances specified in this Agreement, during the term
of this
Agreement, without the written consent from the other Party, no Party
shall suspend or terminate the performance of this Agreement or
unilaterally release this
Agreement.
|
|
10.4.
|
If
one Party does not perform its duties or obligations under this Agreement,
or has committed a material breach of this Agreement resulting in
the
inability of the other Party to operate or to carry out the cooperation
in
any mobile value-added services, such act shall be deemed as a breach
and
the non-breaching Party shall have the right to make a claim for
any
economic losses caused by the breaching Party and to terminate the
Agreement.
|
|
10.5.
|
If
Party B needs to terminate this Agreement due to any technical
reasons or difficulties in its operation, Party B shall inform
Party A in writing at least one month in advance and after
Party A has given its consent, there shall be a buffer period of one
to three months for withdrawal. During such buffer period, Party B
shall continue to provide services to users and inform users of such
termination at least 90 days in advance on its website (Web/WAP) or
through any other channels.
|
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|
Mobile
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|
10.6.
|
If
the Parties have any other agreements in connection with any mobile
value-added services, any such former agreements shall be automatically
terminated from the effective date of this Agreement and each Party
shall
bear any losses caused thereby.
|
Chapter
11 Withdrawal
Mechanism
|
11.1.
|
If
Party B applies to operate mobile value-added services and cannot
pass the relevant tests due to its own reasons within three months
(from
the date on which Party A informs Party B of the testing), the
Mobile Value-added Services Cooperation Agreement entered into by
Party A and Party B shall be terminated
automatically.
|
|
11.2.
|
The
Parties agree that the business withdrawal mechanism shall apply
under
certain circumstances and one or more items of business cooperation
may be
terminated based on the review of the revenues generated from
Party B’s information services, complaints from users and business
testing. The Parties may apply different withdrawal mechanisms based
on
the differences in the businesses, which shall be set forth in the
relevant appendixes.
|
|
11.3.
|
Party A
shall reserve its right on whether the withdrawal mechanism shall
apply in
the termination of one or more items of business cooperation with
Party B. Based on the actual conditions, Party A may, within one
month before the expiration of this Agreement or within one month
after
Party B has satisfied the relevant conditions specified for the
withdrawal mechanism, decide whether to conduct another test on
Party B’s business and whether the withdrawal mechanism is
applicable. If the withdrawal mechanism is applied and one or more
items
of business cooperation is terminated, the appendix relating to any
such
business shall be automatically
terminated.
|
|
11.4.
|
As
to Party B engaging in a special industry, Party A shall have
the right to decide whether the withdrawal mechanism provided for
in this
Agreement and the relevant appendixes shall
apply.
|
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|
11.5.
|
The
termination of one or more items of business cooperation pursuant
to the
main text of this Agreement or any Appendixes to this Agreement shall
not
have any impact on Party B in carrying out any other businesses or in
applying for the operation of any other businesses that it has not
yet
operated.
|
|
11.6.
|
If
Party B materially breaches this Agreement or violates the service
quality standards or customer service standards set forth by Party A
in the operation of one or more businesses, in addition to the termination
of the cooperation in such business with Party B by applying the
withdrawal mechanism, Party A shall reserve its right to terminate
the cooperation in any other businesses in which Party B has not
breached.
|
Chapter
12 Contact
Person and Bank Account Numbers
|
12.1.
|
For
purposes of the cooperation, Party A and Party B may appoint
their respective contact persons for various businesses. The names
of such
contact persons, contact addresses and means of contact shall be
set forth
in the various appendixes for the relevant
businesses.
|
Chapter
13 Effectiveness
and Other Matters
|
13.1.
|
This
Agreement shall become effective from the date on which the authorized
representatives of the Parties have signed this Agreement or affixed
their
common seals and billing and settlement shall commence from the date
of
commencement of the businesses under this Agreement. This Agreement
shall
be valid until March 31, 2005, unless otherwise terminated in advance
in accordance with the provisions of this Agreement. Before the expiration
of this Agreement, Party A may conduct a review of Party B’s
ability and qualifications for the performance of this Agreement.
If
Party A is of the view that Party B has the required ability and
qualifications for the continuous performance of this Agreement,
this
Agreement shall be automatically renewed for one
year.
|
|
13.2.
|
Any
newly executed appendixes shall become effective and shall become
a part
of this Agreement from the date on which Party A signs for
confirmation and Party B authorizes its representative to sign and
affix its common seal. With regards to any change to Party B’s
banking information as set forth in Appendix 3, information on the
Parties’ business contact persons and information on the customer
services, any such change shall become effective once signed by the
authorized representatives. Appendix 15 contains the authorization
letters and signature specimens of such authorized representatives,
which
shall be signed together with this
Agreement.
|
|
13.3.
|
This
Agreement and each appendix shall be signed in duplicates and each
Party
shall hold one copy, which shall have the same legal
effect.
|
22
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|
Mobile
Value-added Services Cooperation Agreement
Appendix 1
Maintenance
Interface of the Parties and Maintenance Responsibility
23
|
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 1 Maintenance
Interface of the Parties and Maintenance Responsibility
| I. |
Maintenance
Interface Diagram
|
[MAINTENANCE
INTERFACE DIAGRAM]
| II. |
Maintenance
Responsibilities of the Parties
|
| (1) |
Obligations
of Party A:
|
|
1.
|
Party A
shall be responsible for providing the hardware and software systems
that
are required in Party A’s mobile communication networks and data
service platforms.
|
|
2.
|
Party A
shall cooperate with Party B to connect various communication cables
between Party A’s gateways or servers to Party B’s
servers.
|
|
3.
|
Party A
shall be responsible for setting forth the relevant technical protocol
standards and interface standards in connection with mobile value-added
services for Party B.
|
|
4.
|
Party A
shall be responsible for the normal operation of the communication
network
that falls within Party A’s scope of responsibility as specified in
the above diagram and shall be responsible for any network failures
that
arise for reasons not attributable to Party B. For any abnormal and
overloading data or information transmission that may have any impact
on
the safety of Party A’s network operation, Party A shall have
the right to limit the
transmission.
|
|
5.
|
Party A
shall be responsible for providing Party B with the statistical data
in respect of the communication channels used by Party B and shall
ensure the reliability and promptness of such statistic
data.
|
|
6.
|
Party A
shall inform Party B as soon as possible of the testing of and
adjustments to, or maintenance of the gateways or other network
facilities, or any other foreseeable reasons resulting in a transmission
breakdown, including the detailed reasons for such breakdown, time
and
cycle.
|
|
7.
|
Party A
shall ensure to keep Party B informed promptly within a reasonable
period of time of any transmission breakdown caused by any failures
in the
gateways or other network facilities or any other reasons that cannot
be
foreseen.
|
24
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|
Mobile
Value-added Services Cooperation Agreement
|
(2)
|
Obligations
of Party B:
|
|
1.
|
Party B
shall be responsible for the construction and maintenance of its
own
‘application service’ system, including all the work and expenses related
to the hardware equipment, the testing of and adjustments to the
system,
operation commencement, system maintenance, daily service management
and
market development.
|
|
2.
|
Party B
shall be responsible for the interconnection between its system and
Party A’s various gateways or servers and all the expenses relating
to the application, leasing and maintenance of the relevant communication
cables.
|
|
3.
|
Party B
shall be responsible for the compilation, review and preparation
of the
information to be provided by it and ensure their accuracy, truthfulness,
reliability and legality and bear the relevant
liability.
|
|
4.
|
Party B
shall ensure that all its testing of and adjustments to the system,
operation commencement and system maintenance will not be carried
out
during Party A’s business rush hours and any work that may seriously
affect users shall be carried out at night. Party B shall guarantee
that all the above work will not have impact on the normal operation
of
Party A’s networks and shall bear responsibility for any failure
caused to Party A’s network
system.
|
|
5.
|
Party B
shall inform Party A in advance of any testing of and adjustments to
the system, operation commencement and system maintenance and subject
to
Party A’s confirmation, inform its users through e-mails,
advertisements, SMS or any other effective means and shall ensure
that any
impact on its users is kept to a
minimum.
|
|
6.
|
During
the term of cooperation, Party B shall comply with any adjustments or
arrangements on the volume of the business made by Party A in the
event of any emergency in order to ensure the normal and steady operation
of various data businesses.
|
25
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|
Mobile
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|
7.
|
During
the transmission of various data and information to Party A’s mobile
communication networks and data business platforms, Party B shall
guarantee that there shall be no overloading that may jeopardize
the
safety of the network.
|
|
8.
|
Party B
shall guarantee to provide the 24-hour system
maintenance.
|
26
|
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 2
Letter
of Responsibility from the Information Source for the Guarantee of Information
Security
27
|
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 2 Letter
of Responsibility from the Information Source for the Guarantee of Information
Security
In
connection with the access to China Unicom’s mobile communication networks,
China Unicom’s UNINET or any other related business platforms (including, but
not limited to, the SMS gateway, WAP gateway, JAVA/BREW download server,
location service server, etc.), the information source entity (the “CP/SP”
hereinafter) guarantees to comply with the following provisions:
Article
1 It
will
comply with the relevant state laws, administrative regulations and rules and
strictly implement the administrative regulations relating to information
security.
Article
2 It
will
not use China Unicom’s mobile communication networks, China Unicom’s UNINET or
any other related service platforms to engage in any illegal and criminal
activities that may jeopardize the state safety or disclosure of any state
secrets. It will not use China Unicom’s mobile communication networks, China
Unicom’s UNINET or any other related service platforms to make, read, duplicate
and distribute any information that is in violation of the constitution and
the
law, harm the social security, hinder the state unification or national unity
or
have any pornographic or violence contents. It will not use China Unicom’s
mobile communication networks, China Unicom’s UNINET or any other related
service platforms to distribute any information that may contain any of the
following:
|
1.
|
Violating
the basic principles set forth in the
constitution;
|
|
2
|
Harming
the state safety, disclosing any state secrets, overthrowing the
state
power and hindering the state
unification;
|
|
3.
|
Damaging
the state reputation and interests;
|
|
4.
|
Instigating
the hatred or discrimination and breaking the
unity;
|
|
5.
|
Damaging
the state religion policies and promoting any evil religion and
superstition;
|
|
6.
|
Distributing
rumors and disturbing the social order and
stability;
|
|
7.
|
Promoting
indecency, pornography, gambling, violence, murder, terror
or instigating
crime;
|
28
|
|
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|
Mobile
Value-added Services Cooperation Agreement
|
8.
|
Shaming
or slandering others and infringing the legitimate interests
of
others;
|
|
9.
|
Containing
any other contents prohibited by the law or administrative
regulations.
|
Measures
shall be promptly taken to stop the acts and a report shall be made to the
relevant authorities when any of the above law breaching activities and harmful
information are found.
Article
3 Information
provided by the information source entity must be in compliance with the state
intellectual property right laws, regulations and policies.
Article
4 The
information source entity shall, after the interconnection testing, trial
operation and commencement of operations, shall guarantee the safety and
stability of service contents provided by it and shall not bring any harm to
China Unicom’s mobile communication networks, China Unicom’s UNINET or any other
related service platforms.
Article
5 The
information source entity shall set up its effective information safety and
confidentiality administration system and technology security measures, and
accept the administration, supervision and inspection from the relevant
authorities.
Article
6 If
any of
the above provisions are violated, China United Communications Corporation
shall
have the right to take any necessary measures and disconnect the access by
the
information source entity. If the case is serious, the business cooperation
shall be terminated and the legal liability of the information source entity
shall be investigated. This Letter of Responsibility, once becoming effective
after being signed by the information source entity, shall be kept by China
United Communications Corporation.
Information
source entity: Beijing AirInbox Information Technology Co., Ltd.
Authorized
Representative: /s/ Li Luyi
(Signature
and seal)
Date:
29
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China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 3
Party B’s
Basic Information for the Operation of Mobile Value-added
Services
30
|
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Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 3 Party B’s
Basic Information for the Operation of Mobile Value-added
Services
|
Party B’s
Basic Information for the Operation of Mobile Value-added
Services
|
||||
|
Company’s
information
|
Company’s
full name
|
Beijing
AirInbox Information Technology Co., Ltd.
|
||
|
Enterprise
code number
|
90300
|
Abbreviation
in English
|
KongZhong
Corporation
|
|
|
Telecom
and information service operation permit number
|
Jing
ICP Zheng No. 020001
|
Valid
term of the telecom and information service operation
permit
|
From
Sept. 4, 2003 to
April 10, 2007 |
|
|
Value-added
telecom services operation permit number
|
B2-20040152
|
Valid
term of the value-added telecom operation permit
|
From
Aug. 18, 2004 to
Aug. 18, 2009 |
|
|
Business
license registration number
|
1101082373236
(1-1) |
Valid
term of the business license
|
From
Apr. 4, 2002 to
Apr. 4, 2032 |
|
|
Contact
person’s information
|
Name
|
Li
Hongli
|
Telephone
|
(000)
0000-0000 Ext. 6648
|
|
Mobile
|
00000000000
|
Fax
|
(000)0000-0000
|
|
|
E-mail
|
xxxxxxxx@xxxxxxxxx.xxx
|
|||
|
Information
on customer service in connection with mobile value-added services
(Note:
Please specify if there are different customer service information
in
different business)
|
24-hour
customer service hotline
|
(000)
0000-0000
|
||
|
Person
in charge of customer service
|
Xx
Xx
|
|||
|
Website
for information on customer service and business
|
xxx.xxxxxxxxx.xxx
|
|||
|
Party B’s
banking information
|
Payee’s
full name
|
Beijing
AirInbox Information Technology Co., Ltd.
|
||
|
Payee’s
account opening bank
|
Industrial
and Commercial Bank of China, Beijing Branch, Xinjiekou Subbranch,
Dewai
Outlet
|
|||
|
Payee’s
bank account
|
0200001309006796982
|
|||
Party B
(seal): Beijing AirInbox Information Technology Co., Ltd.
31
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Execution
Page (no content on this page)
Party A:
China United Communications Corporation
Legal
representative or authorized person: /s/ (Legal representative or authorized
person)
Signing
date: February 2, 2005
Party B:
Beijing AirInbox Information Technology Co., Ltd.
Legal
representative or authorized person: /s/ Li Luyi (Stamp of Beijing AirInbox
Information Technology Co., Ltd.)
Signing
date: February 2, 2005
32
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 4
Short
Message Services
Appendix Number:
CUVAS-A2005-0024/S
33
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Appendix 4 Short
Message Services
| I. |
Definition
|
|
1.
|
Uploading
communication fee means the fee for SMSs from a user’s mobile phone to
Party B’s SMS gateway. Uploading communication fees are charged by
Party A to users.
|
|
2.
|
Downloading
communication fee means the fee for SMSs from Party B’s SMS gateway
to a user’s mobile phone. Downloading communication fees are charged by
Party A to users. Downloading SMSs shall include SMSs under the PUSH
category.
|
|
3.
|
Unbalanced
communication fee means the SMS fee for any unbalanced part (the
number of
downloading SMSs minus the number of uploading SMSs). Any unbalanced
communication fees shall be charged by Party A to
Party B.
|
|
4.
|
Preferential
Treatment Period: After Party B has obtained the qualifications for
the full network access, for the first three months after the billing
for
its business, information service fees shall be allocated at a fixed
proportion and in connection with the administration, Party A applies
certain preferential policies to Party B and its business operation.
This period is called as the “Preferential Treatment
Period”.
|
|
5.
|
Services
under the PUSH category mean those various services received by users
through their mobile terminals initially provided by CP/SP, even
though
users have not applied at all.
|
|
6.
|
Ranking:
Party A ranks all CP/SP on the basis of their information service
revenues after the preferential treatment period and they are divided
into
four ranks: The first 5%; 5% to 45%; 45% to 85% and the remaining
after
the 85%. If the product has any decimals after the total number of
CP/SP
is multiplied by the relevant percentages (i.e., 5%, 45% and 85%),
the
number shall be rounded to a whole number. As the reconciliation
has some
impact on the information service revenues, on the basis of which
CP/SP
ranking is decided, the ranking shall be based on Party A’s data
before any reconciliation.
|
34
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
| II. |
Manner
of Cooperation
|
|
1.
|
As
the telecom operator that provides the relevant platforms for SMS
downloading services, Party A provides Party B with
communication channels non-gratuitously. On the basis of the relevant
platforms for SMS downloading services, Party B provides
Party A’s users with SMS services
non-gratuitously.
|
|
2.
|
The
unified brand of UNI-Info shall be used for all the nation-wide
services
in which the Parties cooperate. Party B’s service access number
is
..
|
|
3.
|
When
Party B applies to operate or add any services, Party B shall
provide the relevant information on itself and its services (including
the
details on its customer service process) in the form attached herein
or
the form provided by Party A when this Agreement is signed. Subject
to Party A’s confirmation, arrangements may be made as agreed by the
Parties for the relevant service
testing.
|
|
4.
|
Pursuant
to the relevant state regulations and at Party A’s request,
Party B shall provide the relevant qualification certificates when
applying for the operation or increase of any new services in order
to
evidence that it has sufficient qualifications, ability and power
for the
operation of any such services. Party B shall guarantee that all the
qualification certificates are authentic and valid. Party A shall not
be liable for the review of the truthfulness and authentication of
any
such qualification certificates.
|
|
5.
|
If
necessary, Party B shall provide Party A with its business
operating plan, including, but not limited to: business plan, technology
plan, testing plan, operating plan, marketing and promotion plan
and
market analysis, forecast and undertaking, for Party A’s review and
planning.
|
|
6.
|
Party B
guarantees to comply with the Administrative Measures on Internet
Information Services and guarantees the accuracy, safety and legality
of
the contents of any information provided by it. Party B shall
strictly not distribute and circulate any information that may breach
the
state laws and regulations, or that may harm the nation’s interest, social
public interest and Party A’s
interest.
|
35
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
7.
|
Party B
shall be responsible for the review of SMS contents compiled by users
and
shall guarantee that all the information contents are sound and
legal.
|
|
8.
|
Party B
shall authenticate users’ mobile phone numbers and show the numbers of
calling parties for any SMS. No SMS shall be sent to any other mobile
phone users in an anonymous manner or in any other
manners.
|
|
9.
|
Party B
shall have the daily logging function and all the historical data
shall be
kept for at least three months for any future
inspection.
|
|
10.
|
During
the preferential treatment period, Party may terminate this Agreement
or
implement the withdrawal mechanism not on the basis of Party B’s
information service revenues.
|
| III. |
Business
Operation
|
|
1.
|
Access
mode: Internet
|
|
2.
|
Access
location:
|
|
3.
|
Time
for the official commencement of business
operations:
|
|
4.
|
Party B’s
customer service information: See
Appendix 3.
|
| IV. |
Billing
|
All
the
communication fees shall be owned by Party A
and
subject to the deduction of 8% for bad debts, information service fees shall
be
distributed to the Parties at a certain proportion.
|
1.
|
Communication
fees:
|
|
a)
|
Party A
shall price the communication fees and shall collect such fees from
users.
|
|
b)
|
For
services such as information ordering and enquiries sent by users
from
their mobile phones, after users successfully receive information,
uploading communication fees shall be charged at RMB0.05 per message
and
downloading communication fees shall be charged at RMB0.05 per
message;
|
36
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
c)
|
For
services such as information ordering and enquiries sent by users
from
Internet, after users successfully receive information, communication
fees
shall be charged at the downloading communication fee rate, i.e.,
RMB0.05
per message;
|
|
d)
|
For
point to point mode (i.e., mobile phone to mobile phone SMS service),
after users successfully send messages, callers shall be charged
for
RMB0.10 for each message sent;
|
|
e)
|
For
any feedback information received by users for the use of any wireless
data services, no communication fees shall be charged and such feedback
information includes the system confirmation of user’s successful
operation, system failure information or information on user’s
unsuccessful operation. No communication fees are charged for either
uploading or downloading such
information.
|
|
f)
|
Unbalanced
communication fees paid to Party A by Party B after settlement =
(the number of downloading SMS - the number of uploading SMS) X RMB0.05
per message, of which: the number of downloading SMS is the total
number
of SMS sent through access numbers allocated to Party B, while the
number of uploading SMS is the total number of SMS received through
access
numbers allocated to Party B.
|
|
2.
|
Information
Service Fees:
|
|
a)
|
Information
service fees: In principle, it shall be priced by Party B and
implemented after Party A’s review and approval. During the
preferential treatment period, information service fees shall be
distributed at a fixed proportion, which is
2:8.
|
|
b)
|
Information
service fees shall be charged to caller after user receives message
successfully.
|
37
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
c)
|
Information
service fee settlement formula:
|
Information
service fees paid to Party B by Party A after settlement =
(information service fee receivable - 8% bad debts) X settlement proportion
applicable to Party B - unbalanced information service
fees
|
d)
|
The
basis for revenue distribution between the Parties shall be the
information service fee receivable.
|
|
e)
|
Proportion
for the information service fee distribution between the
Parties:
|
|
Information
service fee receivable
|
Distribution
proportion (Party A, Party B)
|
|
|
Information
service fees ranking at top 5%
|
1:9
|
|
|
Information
service fees ranking at top 5%-45%
|
2:8
|
|
|
Information
service fees ranking at top 45%-85%
|
3:7
|
|
|
Information
service fees ranking at top 85%-100%
|
4:6
|
|
|
During
the preferential treatment period
|
2:8
|
|
f)
|
For
fixed monthly information service fees, users may cancel their
customization within 72 hours from the first time of connection and
no fees shall be charged. For any monthly information service fees
whose
users subscribe for any such services after the 20th day of each
month, Party B shall not make a charge of information service fees to
users for that month.
|
|
3.
|
Special
Tariff for PUSH services:
|
|
a)
|
PUSH
services: means various services that are not applied for by users,
but
initiated by CP/SP and accepted by users though mobile
terminals.
|
|
b)
|
No
communication and information service fees shall be charged to
users;
|
|
c)
|
For
PUSH services, Party B shall pay downloading communication service
fees at a rate of RMB0.05 per
message;
|
38
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
d)
|
Party B
may only distribute information relating to its services and without
approval, Party B cannot send any advertisements or other commercial
information to users;
|
|
4.
|
Others:
Party B shall, in accordance with Party A’s requirement on
format, insert a legend in each message that information service
fees
shall be collected on Party B’s
behalf.
|
| V. |
Other
Service Requirements
|
|
1.
|
Party B
shall announce the number of message to users when delivering any
information services to users;
|
|
2.
|
For
group dispatch through Internet by users, communication and information
service fees shall be charged to calling parties pursuant to the
number of
phone numbers and the relevant charging standards. The maximum number
of
each group dispatch shall not be more than
two.
|
|
3.
|
Party B
must provide, free of charge, to users the service code for cancellation
of any services that have been customized, which means, when a user
sends
“0000” to Party B’s service code, all the services customized by such
user shall be cancelled and a reply will be sent out with the following
messages: “You have not customized XX (Party B’s name) to provide the
SMS services. Customer hotline: XXXX-XXXX” or “You have cancelled the
customized SMS services provided by XX (Party B’s name). Customer
hotline: XXXX-XXXX”;
|
|
4.
|
After
the 15th day of each month, Party A will provide the number
segment data documents of the previous month for every province of
the
entire network in the catalog of ftp: //000.00.000.00 (user
ID/password: Unicom/telseseg) and Party B shall update the number
segment documents for business system users within that month and
operate
its businesses at its new number segments from the 1st day of the
following month. All the number segment files will be kept on line
for two
months.
|
| VI. |
Withdrawal
Mechanism
|
The
Parties agree to review the SMS services cooperation from the aspects of service
testing, service development and service violation (the service here refers
to
UNI-info in this Appendix) and apply the appropriate withdrawal mechanism based
on the review results. If Party B decides not to operate any SMS services
due to the application of any withdrawal mechanism, the cooperation between
the
Parties in the SMS services shall be terminated and this Appendix shall no
longer be effective.
39
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
1.
|
Rules
for Withdrawal Mechanism
|
|
a)
|
Withdrawal
mechanism on the basis of service
testing
|
If
Party B applies to operate the SMS services and cannot pass the relevant
testing within three months from the day on which Party A informs
Party B of the testing date, the cooperation in the SMS services between
the Parties shall be terminated automatically and the appendix relating to
such
SMS service cooperation shall also be automatically terminated.
|
b)
|
Withdrawal
mechanism on the basis of service
development
|
| I. |
Rules
for service withdrawal
|
|
A.
|
After
the expiration of the preferential treatment period, if Party B’s
information service fees ranked among the last 5% for three consecutive
months, Party B will get a yellow warning card and the following
measures for a yellow warning card shall
apply.
|
|
B.
|
After
the expiration of the preferential treatment period, if Party B’s
information service fees ranked among the last 5% for six consecutive
months, Party B will get a red warning card and the following
measures for a red warning card shall
apply.
|
| II. |
Measures
for Service Withdrawal
|
|
A.
|
Yellow
warning card: If Party B gets a yellow warning card, it shall be
listed in the list of CP/SP that have received yellow warning cards
that
is placed on Party A’s website. In addition, Party A will send a
written notice to Party B.
|
|
B.
|
Red
warning card: If Party B gets a red warning card, its cooperation
with Party A in such service shall automatically terminate and its
service access code will be taken back by Party A. Under such
circumstances, Party A will not accept any application for
cooperation for such service from Party B within one year from the
termination.
|
40
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
c)
|
Withdrawal
Mechanism on the basis of SP/CP’s breaching
acts
|
| A. |
Definition
for breaching acts:
|
|
Serial
Number
|
List
of Breaching Acts
|
Breaching
Act Category
|
||
|
1
|
The
three-day period for service cancellation is not provided for in
the
monthly subscription package
|
A
|
||
|
2
|
Service
fees are not specified in service promotion or customization by
users
|
A
|
||
|
3
|
In
the service registration process, users have not been expressly informed
that the service is a monthly subscription package and monthly service
fees have been charged to users
|
A
|
||
|
4
|
Customer
support has not been provided in accordance with the Agreement and
the
provisions of the Service Administrative Measures and complaints
have not
been handled promptly or within the time specified in the relevant
contracts
|
A
|
||
|
5
|
System
breakdown exceeds the time limits specified in the
Agreement
|
A
|
||
|
6
|
Service
cannot be cancelled by sending ‘0000’
|
A
|
||
|
7
|
Fees
charged for account opening without users’ consent
|
B
|
||
|
8
|
Party B
has made some group dispatches through its own access number without
Party A’s approval
|
B
|
||
|
9
|
Invoices
are not standardized, resulting in the inability to correctly charge
communication service fees
|
B
|
||
|
10
|
Trial
use provided to users free of charge and fees charged after the expiration
of trial period without informing users
|
B
|
||
|
11
|
New
services are provided without informing Unicom
|
B
|
41
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Notes:
Party A shall reserve its right to revise the list pursuant to any issues
found the service operation.
| B. |
Measures
for determining the breaching act
categories:
|
|
Third
grade breaching if one of the conditions is met
|
One
of the breaching acts under Category A in the List of Breaching
Acts
|
|
Second
grade breaching if one of the conditions is met
|
1. Three
or more than three breaching acts under Category A at the same
time
|
|
2. Third
grade breaching has been determined for three consecutive times
|
|
|
3. One
of the breaching acts under Category B in the List of Breaching
Acts
|
|
|
First
grade breaching if one of the conditions is met
|
Second
grade breaching has been determined for three consecutive times
|
| C. |
Measures
for breaching act handling:
|
|
Breaching
grade
|
Measures
|
Details
|
Time
|
|||
|
1.
Warning for the third grade breaching
|
List
SPs that have been determined as having committed third grade breaching
in
the Third Grade Breaching SP List and make a public announcement
on such
SPs.
|
|||||
|
Third
grade breaching
|
Three
months after announcement
|
|||||
|
2.
Suspend the access to any new services
|
Party A
will suspend the review of the SP’s application for any new services and
Party A shall no longer cooperate or terminate the cooperation with
such SP for any service promotion.
|
42
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
1.
Warning for the second grade breaching
|
Party A
shall list the SP that has been determined to have committed
second grade
breaching in the Second Grade Breaching SP List, and inform
the SP
accordingly.
|
|||||
|
Second
grade breaching
|
Three
months after announcement
|
|||||
|
2.
Reduce the fee distribution proportion and impose penalties
|
Reduce
10 percentage points for fee distribution for such SP and for
any SPs
whose information service fees before settlement are less than
RMB100,000,
penalties shall be imposed at RMB10,000 for each breaching
acts incurred
by such SP.
|
|||||
|
First
grade breaching
|
Settlement
shall be stopped and access shall be terminated
|
Party A
shall stop the service settlement with such SP and the SP shall
make a
rectification to its services. If the SP is not qualified after
rectification, Party A shall terminate the cooperation with such SP
and take back the SP’s SMS access number and Party A shall not have
any business cooperation with the SP within one year.
|
| VII. |
Contact
Person
|
Party A: Name:
Geng Yuqiang
Tel: 000-0000-0000
Fax: 000-0000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx.xx
Party B: See
Appendix 3
| VIII. |
List
of SMS
|
43
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Execution
Page (no content on this page)
This
page
is the execution page with signature and seal for Appendix 4 attached to
China Unicom’s Mobile Value-added Service Cooperation Agreement (the main
contract number: CUVAS-A2005-0024.
Party B:
Beijing AirInbox Information Technology Co., Ltd.
Legal
representative or authorized person: /s/ Li Luyi (Stamp of Beijing AirInbox
Information Technology Co., Ltd.)
Signing
date: February 2, 2005
44
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Service
Appendix
WAP
Services
Appendix Number:
CUVAS-V05-A2005-0291/W
45
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Service
Appendix WAP
Services
Preamble
This
Service Appendix is attached to the Mobile Value-added Services Cooperation
Agreement entered into between China United Telecommunications Corporation
(“Party A”) and Beijing AirInbox Information Technology Co., Ltd.
(“Party B”) (Agreement Number: CUVAS-V05-A2005-0291) (the “Agreement”) and
it is an inseparable part of the Agreement.
In
order
to operate the WAP services under this Appendix, apart from the certificates,
qualifications and business permits specified in the Agreement, Party B
shall have duly obtained all the permissions and approvals required for the
operation of such services. Party B shall undertake that all the permits
and other documents are valid and it has sufficient ability and qualifications
to operate the mobile value-added services specified in this Service
Appendix.
Party B
shall undertake to comply with the Measures on the Administration of Internet
Information Services and shall be liable for the accuracy, safety and legality
of the contents of information provided by it. It shall be strictly forbidden
to
distribute or circulate any information that may violate the state laws and
regulations or that may harm the state’s interest, the social public interest
and Party A’s interest.
The
WAP
Services referred to under this Service Appendix shall mean the mobile
value-added services under the WAP category that are the subject of cooperation
between the Parties and the rights and obligations of the Parties in the
cooperative operation of the WAP services are specified in this Service
Appendix.
The
contents of this Service Appendix shall have the same legal effect as the
Agreement. Unless otherwise specified, the terms defined in this Service
Appendix shall have the same meaning of those terms defined in the
Agreement. If there is any conflict between this Service Appendix and the
Agreement, this Service Appendix shall prevail.
| Chapter 1 |
Manner
of Cooperation
|
|
1.
|
The
WAP services refer to the mobile value-added services under the WAP
category provided to users cooperatively by the Parties. As the owner
of
the mobile communication networks, Party A shall provide Party B
with the resources of a fair and high quality WAP service access
platform
and network and users, the maintenance of the WAP service platform
and the
management of the relevant WAP contents. Party B shall provide the
relevant WAP service content through access to such platform. The
WAP
services referred to under this Service Appendix are a nation-wide
service.
|
46
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
2.
|
The
nation-wide WAP services operated cooperatively by the Parties shall
be
branded as “uni-Wap”. In the application to operate the service,
Party B shall truthfully provide the relevant information pursuant to
the requirements for the SP service system and after the application
is
approved, a service testing shall be conducted at a time agreed by
the
Parties.
|
|
Chapter
2
|
Service
Information
|
|
1.
|
Party B
shall provide the relevant service application information when submitting
its service application through Party A’s SP service system. Service
testing and service connection shall be carried out after the service
application has been reviewed by Party A. The service application
information provided by Party B shall have legal effect and
Party A shall make the relevant service connection and settlement on
the basis of the service application information provided by
Party B.
|
|
2.
|
The
service application information provided by Party B shall include,
but shall not be limited to, the following information: service name,
service category, trial manner and billing
method.
|
| Chapter 3 |
Billing
and Settlement
|
|
1.
|
Agreements
in connection with the billing and
settlement
|
|
(1)
|
The
communication service fees shall be priced by Party A and users shall
be charged by Party A in accordance with the relevant provisions. All
the communication service fees shall be owned by
Party A.
|
|
(2)
|
The
information service fees shall be priced by Party B and subject to
Party A’s review and approval, the information service fees shall be
charged and collected by Party A on behalf of
Party B.
|
|
(3)
|
The
information service fees shall be distributed between the Parties
in an
agreed settlement manner.
|
47
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
(4)
|
Subject
to an 8% deduction for bad debts, any remaining information service
fees
shall be distributed between the
Parties.
|
|
(5)
|
Agreements
on the billing and settlement for WAP
PUSH:
|
|
1)
|
For
any point to point PUSH initiated by a user, Party A shall charge the
communication service fee to such
user;
|
|
2)
|
For
the communication service fees in connection with the PUSH information
initiated by Party B’s server, Party A shall make a deduction
from the information service fees settled and to be paid to Party B
every month (this provision shall not apply to the settlement of
any
communication service fees for any WAP PUSH initiated from Party A’s
platform as applied by
Party B).
|
|
2.
|
Settlement
Manner
|
|
(1)
|
Parameters
|
E: The
total
amount of information service fees;
B: The
proportion for bad debts;
S: The
proportion distributed to Party B;
A: The
proportion distributed finally to Party B, i.e., the actual proportion
finally distributed to Party B after the deduction of various other
expenses as agreed by the Parties.
T: The
settled amount of the information service fees.
IM: The
total
amount of the WAP PUSH communication fees
|
(2)
|
The
method for the calculation of A and T in connection with the WAP
services:
|
A
= (I -
B) * S;
T
= E * A
- XX
00
|
Xxxxx
Unicom
|
Mobile
Value-added Services Cooperation Agreement
|
(3)
|
Agreed
Parameters:
|
B
= 8%; S
= 80%;
If
Party A makes any adjustments to any parameters, Party A shall inform
Party B in writing and the Parties shall enter into a supplement or revised
agreement.
|
(4)
|
If
some special service fees are applied for a certain billing period
as
agreed by the Parties (including free of charge, discount), such
special
service fees shall prevail in connection with the calculation of
the total
amount of the information service fees for such billing
period.
|
|
3.
|
Monthly
billing package plan
|
|
(1)
|
The
billing cycle for the information service fee monthly billing package
plan
is a calendar month.
|
|
(2)
|
When
a user customizes its monthly service for the period from 00:00:00
of the
first day of a calendar month to 24:00:00 of the 15th day of the same
month, the information service fees for a whole month shall be charged
to
such user. When a user customizes its monthly service for the period
from
00:00:00 of the 16th day of the same month to 24:00:00 of the last
day of the same month, the information service fees for half a month
shall
be charged to such user.
|
|
(3)
|
For
any service that is cancelled, any information service fees that
have been
collected shall not be refunded and the user may still use the service
in
the remaining days of that month and no information service fees
for such
service shall be charged to such user in the next billing
cycle.
|
| Chapter 4 |
Withdrawal
mechanism and Breach
|
The
provisions relating to the withdrawal mechanism and breach specified in the
Agreement shall be applicable.
49
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
| Chapter 5 |
Contact
|
|
1.
|
Party B
shall provide the relevant contact information truthfully for the
SP
service system and promptly update if there is any change. If, due
to the
failure of Party B to timely update its contact information,
Party A cannot contact Party B in time or cannot perform any of
its obligations under this Appendix, Party A shall not bear
responsibility for any breach of its
obligations.
|
|
2.
|
Information
relating to Party A’s contact person for the WAP services are as
follows:
|
| Party A: | Name: |
Shu
Kesi
|
|
Telephone:
|
000
0000 0000
|
| Fax: |
000
0000 0000
|
| E-mail: |
xxxxx@xxxxxxxxxxx.xxx.xx
|
| Party B: | Name: |
Li
Hongli
|
| Telephone: |
00000000000
|
| Fax: |
(000)
0000 0000
|
| E-mail: |
xxxxxxxx@xxxxxxxxx.xxx
|
50
|
China
Unicom
|
Mobile
Value-added Services Cooperation Agreement
Execution
Page (no contents in this page)
This
page
is the execution page with signature and seal for Appendix 6 attached to
China Unicom’s Mobile Value-added Service Cooperation Agreement (the main
contract number: CUVAS-A2005-0024.
Party A:
(Affixed with Unicom’s common seal)
Date:
Party B:
Beijing AirInbox Information Technology Co., Ltd.
Legal
representative or authorized person: /s/ Li Luyi (Stamp of Beijing AirInbox
Information Technology Co., Ltd.)
Signing
date:
51
