EXCLUSIVE TECHNICAL AND CONSULTING SERVICES AGREEMENT
Exhibit
4.7
This
Exclusive Technical Consulting and Services Agreement (the "Agreement") is
entered into in Beijing as of July 1, 2006, between the following two
parties.
PARTY
A: KONGZHONG
CHINA CO., LTD
PARTY
B: BEIJING
AIRINBOX INFORMATION TECHNOLOGIES CO.,
LTD
WHEREAS,
1.
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Party
A, a wholly foreign-owned enterprise registered in People's Republic
of
China (the "PRC", excluding Hong Kong Special Administration District,
Macao Special Administration District and Taiwan area, for the purpose
of
this "Agreement" ) under the laws of
PRC.
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2.
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Party
B, a wholly domestic invested company registered in PRC, is licensed
by
relevant government authorities to engage in the business of the
Internet
information provision service and value-added telecommunication
service;
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3.
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Party
A agrees to be the provider of technical and consulting services
to Party
B, and Party B hereby agrees to accept such technical and consulting
services.
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WHEREAS,
Party A and Party B, through friendly negotiation and based on the equality
and
mutual benefit, enter into the Agreement as follows:
1.
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TECHNICAL
CONSULTING AND SERVICES; OWNERSHIP AND EXCLUSIVE
INTERESTS
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1.1
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During
the term of this Agreement, Party A agrees to provide the relevant
technical consulting and services to Party B (the content is specified
in
Appendix 1) in accordance with the Agreement.
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1.2
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Party
B hereby agrees to accept such technical and consulting services.
Party B
further agrees that, during the term of this Agreement, it shall
not
utilize any third party to provide such technical and consulting
services
for such above−mentioned business without the prior written consent of
Party A.
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1.3
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Party
A shall be the sole and exclusive owner of all rights, title, interests
and intellectual property rights arising from the performance of
this
Agreement, including, (but not limited to, any copyrights, patent,
know−how, commercial secrets and otherwise), whether developed by Party
A
or Party B based on Party A's intellectual
property.
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1.4
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Party
B covenant that Party A have the priority on cooperation with Party
B in
the same condition in case Party B is going to cooperate with other
enterprises in respect of any
business.
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2.
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CALCULATION
AND PAYMENT OF THE FEE FOR TECHNICAL AND CONSULTING SERVICES (THE
"FEE")
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Party
A
and Party B agree that the fee under this agreement shall be determined and
paid
according to Appendix 2.
3.
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REPRESENTATIONS
AND WARRANTIES
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3.1
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Party
A hereby represents and warrants as follows:
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3.1.1
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Party
A is a company duly registered and validly existing under the laws
of the
PRC;
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3.1.2
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Party
A has full right, power, authority and capacity and all consents
and
approvals of any other third party and government necessary to execute
and
perform this Agreement, which shall not be against any enforceable
and
effective laws or contracts;
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3.1.3
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The
Agreement will constitute a legal, valid and binding agreement of
Party A
enforceable against it in accordance with its terms upon its
execution.
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3.2
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Party
B hereby represents and warrants as follows:
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3.2.1
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Party
B is a company duly registered and validly existing under the laws
of the
PRC and is licensed to engage in the business of Internet information
provision services and value−added telecommunication
services.
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3.2.2
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Party
B has full right, power, authority and capacity and all consents
and
approvals of any other third party and government necessary to execute
and
perform this Agreement, which shall not be against any enforceable
and
effective laws or contracts.
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3.2.3
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Once
the Agreement has been duly executed by both parties, it will constitute
a
legal, valid and binding agreement of Party B enforceable against
it in
accordance with its terms upon its
execution.
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4.
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CONFIDENTIALITY
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4.1
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Party
B agrees to use all reasonable means to protect and maintain the
confidentiality of Party A's confidential data and information
acknowledged or received by Party B by accepting the exclusive consulting
and services from Party A (collectively the "Confidential Information").
Party B shall not disclose or transfer any Confidential Information
to any
third party without Party A's prior written consent. Upon termination
or
expiration of this Agreement, Party B shall, at Party A's option,
return
all and any documents, information or software contained any of such
Confidential Information to Party A or destroy it, delete all of
such
Confidential Information from any memory devices, and cease to use
them.
Party B shall take necessary measures to keep the Confidential Information
to the employees, agents or professional consultants of Party B who
are
necessary to get to know such Information and procure them to observe
the
confidential obligations hereunder.
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4.2
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The
limitation stipulated in Section 4.1 shall not apply
to:
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4.2.1
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The
materials available to the public at the time of
disclosure;
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4.2.2
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The
materials that become available to the public after the disclosure
without
fault of Party B;
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4.2.3
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The
materials Party B prove to have got the control neither directly
nor
indirectly from any other party before the
disclosure;
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4.2.4
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The
information that each Party is required by law to disclose to relevant
government authorities, stock exchange institute, or that is necessary
to
disclose the above confidential information directly to the legal
counselor and financial consultant in order to keep its usual
business.
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4.3
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Both
Parties agree that this article shall survive the modification,
elimination or termination of this
Agreement.
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5.
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INDEMNITY
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Party
B
shall indemnify and hold harmless Party A from and against any loss, damage,
obligation and cost arising out of any litigation, claim or other legal
procedure against Party A resulting from the contents of the technical
consulting and services demanded by Party B.
6.
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EFFECTIVE
DATE AND TERM
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6.1
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This
Agreement shall be executed and come into effect as of the date first
set
forth above. The term of this Agreement is ten (10) years, unless
earlier
terminated as set forth in this Agreement or in accordance with the
terms
set forth in the agreement entered into by both parties
separately.
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6.2
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This
Agreement may be automatically extended for another ten years except
Party
A gives its written consent of the termination of this Agreement
three
months before the expiration of this
Agreement.
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7.
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TERMINATION
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7.1
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This
Agreement shall expire on the date due unless this Agreement is extended
as set forth in the relevant terms
hereunder.
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7.2
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During
the term of this Agreement, Party B can not terminate this Agreement
before the schedule time. Notwithstanding the above−mentioned, Party A may
terminate this Agreement at any time with a written notice to Party
B 30
days before such termination. If Party A terminate the Agreement
in
advance duo to Party B's reason, Party B shall take the liability
to
compensate all the losses caused thereby to Party A and shall pay
the
relevant fees for the services
provided.
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7.3
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Article
4 and 5 shall survive after the termination or expiration of this
Agreement.
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8.
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SETTLEMENT
OF DISPUTES
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8.1
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The
parties shall strive to settle any dispute arising from the interpretation
or performance in connection with this Agreement through friendly
consultation. In case no settlement can be reached through consultation,
each party can submit such matter to China International Economic
and
Trade Arbitration Commission (the "CIETAC"). The arbitration shall
follow
the current rules of CIETAC, and the arbitration proceedings shall
be
conducted in Chinese and shall take place in Beijing. The arbitration
award shall be final and binding upon Both Parties. This article
shall not
be influenced by the termination or elimination of this Agreement.
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8.2
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Each
Party shall continue to perform its obligations in good faith according
to
the provisions of this Agreement except for the matters in
dispute.
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9.
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FORCE
MAJEURE
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9.1
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Force
Majeure, which includes but is not limited to, acts of governments,
acts
of nature, fire, explosion, typhoon, flood, earthquake, tide, lightning,
war, means any event that is beyond the party's reasonable control
and
cannot be prevented with reasonable care. However, any shortage of
credit,
capital or finance shall not be regarded as an event of Force Majeure.
The
affected party who is claiming to be not liable to its failure of
fulfilling this Agreement by Force Majeure shall inform the other
party,
without delay, of the approaches of the performance of this Agreement
by
the affected party.
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9.2
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In
the event that the affected party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure,
only
within the scope of such delay or prevention, the affected party
will not
be responsible for any damage by reason of such a failure or delay
of
performance. The affected party shall take appropriate means to minimize
or remove the effects of Force Majeure and attempt to resume performance
of the obligations delayed or prevented by the event of Force Majeure.
After the event of Force Majeure is removed, both parties agree to
resume
performance of this Agreement with their best
efforts.
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10.
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NOTICES
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Notices
or other communications required to be given by any party pursuant to this
Agreement shall be written in English and Chinese and shall be deemed to be
duly
given when it is delivered personally or sent by registered or mail or postage
prepaid mail or by a recognized courier service or by facsimile transmission
to
the address of the relevant party or parties set forth below.
PARTY
A: KONGZHONG
CHINA
Address: 35
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (00)
00
00000000
Tele: (00)
00
00000000
Addressee: Xxxxxx
Xxxx
PARTY
B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Address: 00X,
Xxxxxx Xxxxx, Xx. 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Fax: (00)
00
00000000
Tele: (00)
00
00000000
Addressee: Xxxxxx
Xxxx
11.
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ASSIGNMENT
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Party
B
shall not assign its rights or obligations under this Agreement to any third
party without the prior written consent of Party A. Party A shall transfer
its
rights or obligations under this Agreement to any third party without the
consent of Party B, but shall inform Party B of the above
assignment.
12.
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SEVERABILITY
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Any
provision of this Agreement that is invalid or unenforceable because of any
inconsistency with relevant law shall be ineffective or unenforceable within
such jurisdiction where the relevant law governs, without affecting in any
way
the remaining provisions hereof.
13.
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AMENDMENT
AND SUPPLEMENT
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Any
amendment and supplement of this Agreement shall come into force only after
a
written agreement is signed by both parties. The amendment and supplement duly
executed by both parties shall be part of this Agreement and shall have the
same
legal effect as this Agreement.
14.
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GOVERNING
LAW
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The
execution, validity, performance and interpretation of this Agreement shall
be
governed by and construed in accordance with the laws of PRC.
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the Effective
Date first written above.
PARTY
A: KONGZHONG
CHINA CO. LTD
Authorized
Representative: /s/
herein
PARTY
B: BEIJING
AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Authorized
Representative: /s/
APPENDIX
1: THE LIST OF TECHNICAL AND CONSULTING SERVICES
Party
A
shall provide technical and consulting services as follows:
1.
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maintenances
of the machine room and website;
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2.
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provision
and maintenances of the office
network;
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3.
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integrated
security services for the website;
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4.
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design
and implementation of the integrated structure of the network of
the
website, including the installation of the server system and 24 hours'
daily maintenances each week.
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5.
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development
and test of new products;
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6.
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marketing
plan of new products;
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7.
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conception,
creation, design, update and maintenance of the web
pages;
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8.
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maintenance
of the clients service platform;
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9.
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training
of the employees;
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10.
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study
and analysis on market;
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11.
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public
relationship service
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APPENDIX
2: CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL AND CONSULTING
SERVICES
The
service fees hereunder shall be monthly calculated by 20% to 25% of the monthly
package fees paid by Party B' end users to Party B (accumulated by all the
package end users) and 20% to 25% of the fees of every message paid by Party
B's
clients (accumulated by the amount of the actual messages). The exact proportion
above mentioned (within the scope of 20% to 25%) shall be decided by Party
A in
accordance with the actual service it provides to Party B and shall be
calculated quarterly. In case, Party B fails to reach such requirement at the
end of any month, Party A may deduct the fees of the month at its
discretion.