Between Beijing Tixian Digital Technology Co., Ltd. and Reshuffle Technology (Shanghai) Co., Ltd.

Exhibit 4.38

English Translation

Between

Beijing Tixian Digital Technology Co., Ltd.

and

Reshuffle Technology (Shanghai) Co., Ltd.

EXCLUSIVE TECHNICAL AND CONSULTING SERVICES

AGREEMENT

Dated February 15, 2012

EXCLUSIVE TECHNICAL AND CONSULTING SERVICES AGREEMENT

THIS EXCLUSIVE TECHNICAL AND CONSULTING SERVICES AGREEMENT (“this Agreement”) is made and entered into by the following two parties in Shanghai, the People’s Republic of China (“PRC”) on February 15, 2012.

(1) Beijing Tixian Digital Technology Co., Ltd., a limited liability company duly organized and validly existing under the PRC laws, with its legal address at Room 9960, 3# Building, Xx.0 Xxxxxx Xxxx, Xxxxxxx Xx-xxxx Xxxx, Xxxxxxxxxxx Xxxxxxxx, Xxxxxxx (hereinafter referred to as “Party A”); and

(2) Reshuffle Technology (Shanghai) Co., Ltd., a wholly foreign-owned enterprise duly organized and validly existing under the PRC laws, having its legal address at Room 22301-1007, Building 14, Pudong Software Park, No.498 Guoshoujing Road, Zhangjiang High-tech Park, Shanghai (hereinafter referred to as “Party B”)

(In this Agreement, Party A and Party B are hereinafter collectively referred to as the “Parties” and individually as a “Party”.)

Preamble

WHEREAS, Party A is a limited liability company duly organized and validly existing in Beijing, PRC, with its main business covering animation design, computer animation making, exhibitions, advertising design, making, release and agency, advertising information consulting, graphic design, software design, organization of cultural and art exchange activities and technical promotion services;

WHEREAS, Party B is a wholly foreign-owned enterprise duly registered and legally existing in Shanghai, PRC, with its main business covering the development, design and making of network information system software, selling of self-produced products, development and design of computer hardware and provision of relevant technical consultancy and services;

WHEREAS, Party A needs Party B to provide the technical consultancy and services relevant to Party A’s Business (as defined below), and Party B agrees to provide Party A with such technical consultancy and services.

NOW, THEREFORE, the Parties, after friendly negotiations, hereby agree below:

Article 1 Definitions

1.1 Except as otherwise provided herein or where the context otherwise requires, the following terms used herein shall have the following meanings:

“Party A’s Business”		means all the businesses as conducted and developed by Party A now and at any time throughout the term of this Agreement.
Services		means the technical consultancy and services in connection with Party A’s Business provided by Party B exclusively to Party A within its business scope, including, but not limited to:
		(1) Permitting Party A to use the relevant software required for Party A’s Business;
		(2) Routine management, maintenance and updating of hardware equipment and database;
		(3) Development, maintenance and updating of the application software related to the application of Party A’s Business;
		(4) Providing technical training for Party A’s technology professionals;
		(5) Assisting Party A in the collection and research of and on relevant technical information;

		(6) Other relevant technical consultancy and services provided from time to time at the request of Party A.
		For the purpose of the Services, Party B also agrees to provide Party A with the computers, network hardware and other equipment required for Party A’s Business for Party A’s use.
“Annual Business Plan”		means Party A’s Business development plan and budget report for next calendar year prepared by Party A according to this Agreement and with the assistance of Party B before November 30 of each year.
“Service Fees”		means all the fees payable by Party A to Party B under Article 3 hereof in respect of the services provided by Party B.
“Business Related Technology”		means any and all software and technologies relating to Party A’s Business which are developed by Party A on the basis of the Services supplied by Party B hereunder.
“Customer Information”		has the meaning as ascribed to it under Article 6.1.
“Confidential Information”		has the meaning as ascribed to it under Article 6.2.
“Defaulting Party”		has the meaning as ascribed to it under Article 11.1.
“Default”		has the meaning as ascribed to it under Article 11.1.
“Rights”		has the meaning as ascribed to it under Article 13.5.

1.2 The references to any laws and regulations (hereinafter the “Laws”) herein shall be deemed:

(1) to include the references to the amendments, changes, supplements and reenactments of such Laws, irrespective of whether they take effect before or after the date of this Agreement; and

(2) to include the references to other decisions, notices or regulations enacted in accordance therewith or effective as a result thereof.

1.3 Except as otherwise stated in the context herein, all references to an article, clause, item or paragraph shall refer to the relevant part of this Agreement.

Article 2 Services

2.1 Party B shall provide Party A with the Services diligently according to the needs of Party A’s Business and the conditions hereunder. For this purpose, Party B shall have in place all equipment and personnel reasonably necessary for the provision of the Services and acquire the new equipment and personnel according to Party A’s Annual Business Plan and at the reasonable request of Party A, so as to meet the needs of Party B’s provision of high-quality Services to Party A according to this Agreement.

2.2 For the purpose of provision of the Services according to this Agreement, Party B shall communicate with Party A all information relevant to Party A’s Business and/or customers of Party A.

Article 3 Service Fees

3.1 In respect of the Services to be provided by Party B pursuant to this Agreement, Party A agrees to pay Party B, pursuant to Article 3.2 hereof, the Service Fees as follows:

(1) The performance-based Service Fees computed at a certain percentage of Party A’s total before-tax revenue for the current year. The initial computing percentage of the performance-based Service Fees is 50% of Party A’s total before-tax revenue for the current year.

(2) In respect of the certain technical consultancy and services provided by Party B from time to time at Party A’s request, Party A shall pay the Service Fees based on written payment notice provided by Party B.

3.2 The Parties agree that the Service Fees shall be paid as follows:

(1) Party A shall pay Party B the performance-based Service Fees on a quarterly basis. Party A shall pay the performance-based Service Fees as set forth in Article 3.1(1) before January 10, April 10, July 10 and October 10 of each year.

(2) Upon the close of each fiscal year of Party A, the Parties shall, on the basis of Party A’s total pre-tax income of the preceding fiscal year confirmed by the audit report issued by a PRC certified public accountants firm which is mutually accepted by the Parties or via other means as agreed by the Parties, carry out the overall accounting on the performance-based Service Fees actually payable by Party A under Article 3.1(1) and make appropriate payment adjustments (overpaid portion is refunded and underpaid portion is paid) within fifteen working days after issue of the audit report. Party A undertakes to Party B that it will provide all necessary materials and assistance to the PRC certified public accountants firm, and procure such firm to complete and issue to the Parties the audit report on Party A for the preceding fiscal year within the first thirty (30) working days after the close of each fiscal year.

3.3 Party A shall, pursuant to Article 3 hereof, pay all Service Fees to the bank account designated by Party B on time. If Party B changes its bank account, it shall provide Party A with a seven (7) working-day prior written notice on such change.

3.4 Notwithstanding any provision of Articles 3.1 and 3.2 hereof, in respect of the Services performed by Party B each year, Party B shall have the right adjust the computing percentage of the performance-based Service Fees. Party B shall, before the relevant payment period, notify Party A in writing of the adjusted computing percentage of the performance-based Service Fees and Party A shall pay such adjusted performance-based Service Fees based on Party B’s written notice. Party B may at the same time require the adjustment of the specific payment method of the Service Fees under Article 3.2 hereof.

Article 4 Party A’s Obligations

4.1 The Services hereunder shall be provided by Party B on an exclusive basis. During the term of this Agreement, without prior written consent of Party B, Party A may not enter into any agreement with any third party or otherwise agree to engage such third party to provide it with the services identical or similar to those provided by Party B.

4.2 Party A shall provide Party B with its determined Annual Business Plan for next year before November 30 of each year so that Party B can arrange the corresponding service plan and prepare the necessary software, equipment and technical service personnel. If Party A needs Party B to increase equipment or personnel on a temporary basis, it shall negotiate with Party B to reach a consensus fifteen (15) days in advance.

4.3 In order to facilitate Party B’s provision of the Services, Party A shall provide Party B with relevant materials required by Party B in a timely manner according to Party B’s requirements.

4.4 Party A shall pay the Service Fees to Party B on time and in full according to Article 3 hereof.

4.5 Party A shall maintain its good reputation and actively develop its business to pursue maximum profits.

Article 5 Intellectual Property Rights

5.1 Intellectual property rights to the work products created during Party B’s provision of the Services shall belong to Party B.

5.2 As the operation of Party A’s Business relies on Party B’s provision of Services hereunder, Party A agrees to the following arrangements in respect of the Business-related Technology developed by Party A on the basis of such Services:

(1) if the Business-related Technology is further developed by Party A upon entrustment by Party B, or is jointly developed by Party A and Party B, the ownership thereto and relevant application right for patent shall belong to Party B;

(2) if the Business-related Technology is further developed by Party A independently, the ownership thereto shall belong to Party A, provided that (A) Party A informs Party B of the details of such Business-related Technology in time and provides relevant materials required by Party B; (B) in the event that Party A proposes to license or transfer such Business-related Technology, Party B shall have the priority to purchase, or Party A shall grant Party B an exclusive license, subject to

compliance with mandatory provisions of the PRC laws, and Party B may use such Business-related Technology within the scope transferred or granted by Party A (but Party B has the right to determine whether to accept such transfer or license). Only when Party B waives its priority to purchase or the exclusive right to use such Business-related Technology, Party A may transfer the ownership to such Business-related Technology to any third party or license any third party to use such Business-related Technology, provided that the conditions (including but not limited to transfer price or license fees) shall not be favorable than those offered to Party B, and Party A shall guarantee that such third party fully complies with and performs the liabilities and obligations that shall be complied with and performed by Party A hereunder; and (C) except for the circumstances set forth in item (B) above, within the period provided by Article 8.1 hereof, Party B is entitled to purchase such Business-related Technology, at which time Party A shall consent to such purchase by Party B, subject to compliance with mandatory provisions of the PRC Law, at a purchase price of Renminbi one yuan (RMB1.00) or other minimum price permitted by the then-effective laws.

5.3 If Party B is licensed to use the Business-related Technology on an exclusive basis according to Article 5.2(2) hereof, such license is subject to the provisions below:

(1) the license term shall be at least five (5) years (commencing from the effective date of the relevant license agreement);

(2) the scope of license shall be defined to the fullest extent;

(3) within the term and scope of the license, except Party B, no other party (including Party A) may use or license others to use such Business-related Technology in any manner;

(4) subject to compliance with Article 5.3(3), Party A is entitled to license such technology to other third party, at its sole discretion; and

(5) upon expiry of the license term, Party B is entitled to request renewal of the license agreement, and Party A shall agree. The renewed license agreement shall have the same terms with the original one, except for changes acknowledged by Party B.

5.4 Notwithstanding any provision of the above Article 5.2(2) hereof, the patent application for any Business-related Technology described in that Article shall be conducted in accordance with the following provisions:

(1) if Party A intends to apply for patent on any Business-related Technology described in such Article, Party B’s prior written consent is required;

(2) Party A may apply for patent on its own or transfer such application right to a third party only upon Party B’s waiver of the right to purchase such application right for patent. If Party A transfers the aforesaid application right for patent to a third party, it shall guarantee that such third party fully complies with and performs the liabilities and obligations that shall be complied with and performed by Party A hereunder; in addition, the conditions of Party A’s transfer of the application right for patent to a third party (including but not limited to the transfer price) shall not be favorable than those proposed to Party B pursuant to Paragraph 3 of this Article.

(3) during the term of this Agreement, Party B may at any time require Party A to apply for patent on such Business-related Technology, and decide at its own discretion whether to purchase such application right for such patent. At Party B’s request, Party A shall transfer such application right to Party B, subject to compliance with mandatory provisions of the PRC law, at a transfer price of Renminbi one yuan (RMB1.00) or other minimum price permitted by the then-effective laws. Party B shall become the legal owner of such patent after it acquires the application right for patent on such Business-related Technology and applies for and obtains such patent.

5.5 Each Party warrants to the other Party that it will compensate the other Party for any and all economic losses incurred by the other Party due to its infringement upon any other person’s

intellectual property rights (including copyright, trademark, patent and know-how).

Article 6 Confidentiality

6.1 Throughout the term of this Agreement, all customer information related to Party A’s Business and the Services provided by Party B hereunder as well as other relevant materials (hereinafter the “Customer Information”) shall be jointly owned by the Parties.

6.2 Whether this Agreement is terminated or not, the Parties shall be obliged to keep in strict confidence business secrets, proprietary information and business information of the other Party acquired during the execution and performance of this Agreement, Customer Information jointly owned by the Parties and all other information of a confidential nature (hereinafter the “Confidential Information”). The receiving Party of the Confidential Information shall not disclose any Confidential Information to any third party except with the prior written consent of the other Party, or required by relevant laws and regulations or required for listing of such Party or any of its affiliates. The receiving Party may not use, directly or indirectly, such Confidential Information for purposes other than performing its obligations under this Agreement.

6.3 None of the following information is Confidential Information:

(a) any information that is proved by written evidence to be known to the receiving Party previously by any legal means;

(b) any information that comes into public domain through no fault of the receiving Party, or becomes known to the public for other reasons;

(c) any information that is lawfully obtained by the receiving Party by other means after receiving such information.

6.4 The receiving Party may disclose the Confidential Information to its relevant employees, agents or professionals it retains, but shall ensure that such persons obey the relevant terms and conditions of this Agreement and assume any liabilities arising from the breach of the relevant terms and conditions of this Agreement by any of the foregoing persons.

Article 7 Representations and Warranties

7.1 Party A hereby represents and warrants that:

7.1.1 it is a limited liability company duly registered and validly existing under the PRC laws with the corporate personality of independent legal person, with full and independent legal status and legal capacity to execute, deliver and perform this Agreement, and may act independently as a subject of actions;

7.1.2 it has full corporate internal power and authorization to execute and deliver this Agreement and all other documents related to the transaction contemplated hereunder and to be executed by it, and it has full power and authorization to complete the transaction contemplated hereunder. This Agreement shall be lawfully and duly executed and delivered by it and shall constitute a legal and binding obligation on it and is enforceable against it pursuant to the terms hereof;

7.1.3 it has obtained complete business permits necessary for its operations upon effectiveness of this Agreement; it has sufficient rights and qualification to conduct the business it is currently engaged in as well as the other Party A’s Business as conducted now within the PRC;

7.1.4 it shall notify Party B in a timely manner of any situation which has or may have material adverse effect on Party A’s Business and operation, and shall make its best efforts to prevent the occurrence of such situation and/or the expansion of losses;

7.1.5 without written consent from Party B, Party A shall not, in any way, dispose of its material assets or change its current shareholding structure.

7.2 Party B hereby represents and warrants that:

7.2.1 it is a limited liability company duly registered and validly existing under the PRC

laws with the corporate personality of independent legal person, with full and independent legal status and legal capacity to execute, deliver and perform this Agreement, and may act independently as a subject of actions;

7.2.2 it has full corporate internal power and authorization to execute and deliver this Agreement and all other documents related to the transaction contemplated hereunder and to be executed by it, and it has full power and authorization to complete the transaction hereunder. This Agreement shall be lawfully and duly executed and delivered by it and shall constitute a legal and binding obligation on it and is enforceable against it pursuant to the terms hereof.

Article 8 Term of Agreement

8.1 The Parties hereby acknowledge that this Agreement becomes effective upon formal signing by the Parties. Unless terminated by the Parties in writing, this Agreement shall continue in force and effect until the term of business operation of either Party expires and is not extended.

8.2 The obligations of the Parties under Article 3 and Article 6 hereof shall survive the termination of this Agreement.

Article 9 Indemnification

Party A shall indemnify and hold Party B harmless for and against all losses that are or may be suffered by Party B as a result of its provision of the Services, including, but not limited to, any losses arising from any lawsuit, repayment pursuit, arbitration or claim made by any third party or any administrative investigation or penalty by any government authority against Party B, provided, however, that the losses arising from Party B’s intentional misconduct or gross negligence shall not be entitled to such indemnification.

Article 10 Notices

10.1 Any notice, request, demand or other communications required to be given or made under or pursuant to this Agreement shall be in writing and delivered to the receiving Party.

10.2 The notices or other communications shall be duly given: if sent by fax or telex, upon transmission; if delivered by hand delivery, when delivered; if delivered by mail, after five (5) days of posting.

Article 11 Defaulting Liabilities

11.1 The Parties agree and acknowledge that, if any Party (hereinafter the “Defaulting Party”) commits material breach of any provision hereof, or materially fails to perform any obligation hereunder, such breach or failure shall constitute a default under this Agreement (hereinafter a “Default”), then the non-defaulting Party shall be entitled to demand the Defaulting Party to rectify such Default or take remedial measures within a reasonable period. If the Defaulting Party fails to rectify such Default or take remedial measures within such reasonable period or within fifteen (15) days following the written notice issued by the non-defaulting Party and the rectification requirement, the non-defaulting Party shall be entitled to decide to, at its discretion: (1) terminate this Agreement and require the Defaulting Party to indemnify all the damages; or (2) require the performance of the obligations hereunder and require the Defaulting Party to indemnify all the damages.

11.2 Notwithstanding any provision under Article 11.1 above, the Parties agree and acknowledge that under no circumstances shall Party A be entitled to terminate this Agreement for whatever reason, unless otherwise provided by law or this Agreement.

11.3 Notwithstanding any other provisions herein, the validity of this Article 11 shall survive the suspension or termination of this Agreement.

Article 12 Force Majeure

If either Party is prevented from performing this Agreement or performing on the agreed conditions hereunder as a direct result of force majeure, including earthquake, typhoon, flood, fire, war, computer virus, design vulnerabilities of tool software, hacker attack on the Internet, changes in policies and laws and other force majeure events which are unforeseeable or the consequences of which are unpreventable or unavoidable, such prevented Party shall forthwith notify the other Party by fax of the occurrence thereof and within thirty (30) days thereafter, provide the documentary evidences issued by the local notarial organization where the event occurred, explaining the details of the force majeure event and the reasons for its failure to perform this Agreement or its need to delay the performance of this Agreement. The Parties may negotiate whether or not to exempt part of the obligations hereunder or delay the performance of this Agreement depending on the extent of the effect of such force majeure event upon the performance of this Agreement. Neither Party shall be liable to the other Party in respect of the economic losses incurred as a result of the force majeure event.

Article 13 Miscellaneous

13.1 This Agreement is written in Chinese and executed in two (2) originals. Each Party retains one (1) copy.

13.2 The execution, effectiveness, performance, modification, interpretation and termination of this Agreement shall be governed by the laws of the People’s Republic of China.

13.3 Any dispute arising hereunder and in connection herewith shall be settled through consultations between the Parties, and if no agreement regarding such dispute can be reached by the Parties within thirty (30) days upon its occurrence, such dispute shall be submitted to the Shanghai Sub-commission of China International Economic and Trade Arbitration Commission for arbitration in Shanghai in accordance with the arbitration rules thereof, and the arbitration award shall be final and binding on the Parties.

13.4 Any rights, powers and remedies granted to any Party by any provisions herein shall not preclude any other rights, powers and remedies available to such Party in accordance with laws and other provisions under this Agreement, and the exercise of its rights, powers and remedies by a Party shall not preclude its exercise of any other rights, powers and remedies available to it.

13.5 No failure or delay by a Party in exercising any of its rights, powers and remedies hereunder or in accordance with law (hereinafter the “Rights”) shall be construed as a waiver of such Rights, and the waiver of any single or partial exercise of the Rights shall not preclude its exercise of such Rights in any other way and other Rights.

13.6 The headings herein contained are inserted for reference only and in no circumstances shall such headings be used in or affect the interpretation of the provisions hereof.

13.7 Each provision contained herein shall be severable and separate from other provisions, and if at any time one or more provisions hereof become invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions herein shall not be affected as a result thereof.

13.8 This Agreement, once executed, shall supersede all other prior legal documents between the Parties with respect to the subject matter hereof. Any amendment or supplement to this Agreement shall be binding only by a written instrument duly executed by the Parties.

13.9 Neither Party shall assign any of its rights and/or obligations hereunder to any third party without the prior written consent of the other Party.

13.10 This Agreement shall be binding on the respective legal successors of the Parties.

13.11 The Parties undertake that they shall respectively make tax declaration and payment pursuant to law in connection with the transaction hereunder.

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(SIGNATURE PAGE)

IN WITNESS WHEREOF, the Parties hereto have caused this Exclusive Technical and Consulting Services Agreement to be executed as of the date and in the place first above written.

Party A:
Beijing Tixian Digital Technology Co., Ltd.
(Corporate seal)
[Seal: Beijing Tixian Digital Technology Co., Ltd.]
By:	/s/ Xxxx Xx
Name: Xxxx Xx
Title: authorized representative
Party B:
Reshuffle Technology (Shanghai) Co., Ltd.
(Corporate seal)
[Seal: Reshuffle Technology (Shanghai) Co., Ltd.]
By:	/s/ Xxx Xxxx
Name: Xxx Xxxx
Title: authorized representative