Technical Service Agreement (Including Technical Training and Technology Intermediary Services)
Exhibit
4.45
Contract
Registration No.:
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Technical
Service Agreement
(Including
Technical Training and Technology Intermediary Services)
Registered
(seal)
Project
Name:
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Agreement 08DX039 on China
Mobile’s WAP Service
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Principal:
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China Mobile
Telecommunications
Group Corporation
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(Party
A)
Agent:
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Beijing AirInbox
Information Technologies Co., Ltd.
(seal)
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(Party
B)
Place
of Execution: Haidian District, Beijing
Date
of Execution: January 1, 2008
Validity
Term: January 1, 2008 to December 31, 2008
1
YYXSHT
[2008] 709-10
Cooperation
Agreement between China Mobile Telecommunications Group Corporation and
Providers of Monternet WAP Services
Party A: China
Mobile Telecommunications Group Corporation
Party
B: Beijing AirInbox
Information Technologies Co., Ltd
With a
view to seeking mutual benefit and win-win results, Both parties, through full
and amicable consultations, have decided to establish cooperative relationshipon
on equal footing. This Agreement is formulated to define the rights and
obligations of both parties during cooperation, which is equally binding upon
both parties hereto.
I.
Principles of Cooperation
Both
parties will carry out faithful cooperation in Mobile On-line business (via WAP)
of mobile data services based on the benefit sharing, mutual beneficial and
win-win principles Both parties shall abide by the agreement and
coordinate the counterpart.
II.
Coverage of Project
As a
network operator, Party A shall provide the network platform and communication
service, and shall provide Party B with the WAP access specification for
Monternet Mobile On-line business and the technical specification on interface.
As a service provider, Party B shall, in accordance with the specifications
provided by Party A, develop and provide content and application services. Only
as approved by Party A can the application and contents provided by Party B be
linked to WAP home site of Party A’s Monternet. URL: Xxxx://xxx.xxxxxxxxx.xxx.
III.
Responsibilities of Both Parties
(I)
Responsibilities of Party A
1. Party
A shall, by making use of the media under its control, publicize and promote WAP
home site of Monternet to attract users to visit the website.
2. Party
A shall provide Party B with the technical specifications of interface and
technical support for WAP access, so as to ensure successful access of Party B
to Monternet WAP home site.
3. Party
A shall, as required by Party B, provide necessary training to Party
B.
4. With
the firewall of Party A’s WAP system and Party B’s interface as the boundary,
Party A shall maintain all equipment at its side and ensure normal operation
thereof.
5. Party
A shall, at the WAP home site of Monternet, make available the application
services provided by Party B which was tested and approved by Party
A.
6. Party
A shall conduct routine maintenance for WAP home site of Monternet. Party A
shall resolve any failure caused by technical problem on its part to ensure
normal operation of application services.
7. Party
A shall provide network interface services to Party B for free, and assist Party
B to link the application services to WAP home site of
Monternet.
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8. Party
A shall work out the indicators for Mobil On-line business (via WAP), inform
Party B of the same in complete and unambiguous manner, and allow Party B enough
time to realize such indicators.
9. Party
A shall be responsible for the registration, login, authentication and authority
of users, and feedback related data to Party B.
10. Party
A shall calculate visit numbers of WAP home site of Monternet, and provide the
statistics to Party B as required by the latter.
11. With
respect to the services provided by Party B at WAP home site of Monternet, Party
A shall calculate the charges based on the rate provided by Party B, and charge
Party A’s customers who use the services provided by Party B based on the
calculation, and shall settle with Party B based on relevant clauses in Part 6
hereunder.
12. Party
A shall be responsible for consultation and complaints from customers, and
handle complaints. Party A shall, in case of network, gateway and operation
platform failures caused by Party A, take responding actions immediately; in
case of failures caused by Party B, Party A shall inform Party B of the
situation and urge Party B to solve the problems.
(II)
Responsibilities of Party B
1. Party
B shall, by making use of the media (including WEB Site, WAP Site, print media,
TV etc) under its control, assist China Mobile to introduce WAP home site of
Monternet (xxx.xxxxxxxxx.xxx) and application services at the home site, to
attract users to visit such website to use the services. Party B may promote the
Monternet Mobile On-line business by the company name or business name of Party
A only upon written confirmation of Party A; without written consent of Party A,
Party B shall not promote business not included in the Monternet Mobile On-line
business in the name of “China Mobile” or “Monternet” by media.
2. Party
B shall, according to the coverage of project, provide necessary equipment,
including WAP application server, application software, information source and
special line for application data and ensure normal operation of such equipment
as required by Party A.
3. Party
B shall coordinate Party A for interface testing and ensure successful access of
Party B to Monternet WAP home site according to the WAP access specification for
Monternet Mobile On-line business (via WAP) and the technical specification on
interface as provided by Party A.
4. With
the firewall of Party A’s WAP system and Party B’s interface as the boundary,
Party B shall maintain all equipment at its side and ensure normal operation of
such equipment.
5. Party
B must satisfy the following network performance indicators which will be tested
and recorded by Party A.
(1) The
proportion of success links shall be no less than 98% in busy
hours;
(2)
Network delay (round trip delay of WTBS PING SP server) shall be no more than
100 milliseconds;
(3) SP
response delay (response delay from WTBS delivering a business request to WTBS
receiving the business) shall be no more than 500 milliseconds;
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6. Party
B shall, in case of failures concerning application services cased by Party B,
resolve such failures immediately and take practical measures to ensure that the
same or similar failures do not recur in the future. In case of economic losses
to Party A or Party A’s customers incurred by Party B, Party B shall be liable
for compensation therefor.
7. Party
B shall be responsible for negotiations and reaching commercial agreements with
the direct providers for application services. Party B shall ensure all
information and services provided do not violate relevant policies and
regulations of the State, and would not infringe the interests of consumers as
well as the intellectual property right of any third party. Party B shall be
responsible for approval and online-related work as regards to the information
and contents required for updating, and bear legal liabilities arising
therefrom. Party B shall assume the relevant responsibilities for litigations
incurred.
8. Party
B shall ensure users to use all services provided by Party A freely at Party A’s
WAP home site of Monternet. Party B shall not require the users who visit Party
A’s WAP home site of Monternet for registration and certification and shall not
require the users to register firstly in any website other than Party A’s WAP
home site of Monternet without Party A’s consent.
9. Party
B shall ensure the contents as provided are legal and do not infringe the
legitimate rights of the third party and shall update the contents
timely.
10. Party
B shall not unilaterally provide any service other than that approved by Party A
through the WAP home site of Monternet without the written consent of Party
A.
11. With
respect to the application services provided by Party B for Party A in
whatsoever transmission and carrying ways, Party B shall not provide such
services for other communication operators or websites. Failing which, Party A
may terminate the application services provided by Party B at Party A’s WAP home
site of Monternet and terminate the settlement with Party B.
12. Party
B shall not provide the services with charge on its own WAP websites or other
websites. Failing which, Party A may terminate the application services provided
by Party B at Party A’s WAP home site of Monternet and terminate the settlement
with Party B.
13. Party
B shall, in principle, terminate the service in the event that Party B had
provided such service on its own WAP websites or WAP websites of Party A’s
companies at provincial level before cooperation with Party A. It is allowed to
add a link to Monternet in the original service location. Otherwise, Party A may
terminate the application services provided by Party B at Party A’s WAP home
site of Monternet and terminate the settlement with Party B.
14. Party
B shall provide a link to the homepage of Party A’s WAP home site of Monternet
(xxxx://xxx.xxxxxxxxx.xxx)
on its own WAP websites and recommend application services of WAP home site of
Monternet to users.
15. Party
B may either provide nation-wide services at Party A’s WAP home site or provide
services at Party A’s local WAP websites. However, Party B may
apply only one of them for providing same or similar contents. In
other words, the services provided for local WAP websites shall not be provided
for the WAP home site and the services provided for the WAP home site shall not
be provided for the local WAP websites. In addition, the services provided for
different provinces shall be different. It is not allowed to provide nation-wide
services in the disguise of accessing to multi local WAP websites of Party A.
Otherwise, the nation-wide services of Party B may be terminated.
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16.
Without written consent of Party A, the application services provided by Party B
at Party A’s WAP home site shall be marked with a uniform trademark of Monternet
other than the brand or trademark of Party B.
17. All
services provided by Party B at Party A’s WAP home site shall not go to Party B
or third party’s URL; Links shall be available for all services to return the
homepage of Monternet (xxxx://xxx.xxxxxxxxx.xxx).
18. Party
B shall provide to Party A all necessary materials for the billing clearly and
unambiguously and shall bear all economic and legal liabilities.
19. Party
B must possess the
Business License of the
People's Republic of China on Cross-region Value-added Telecommunication
Business as approved and issued by Ministry of Information Industry.
Party B must meet all requirements for operating value-added telecommunication
business as specified in the business license of the People’s Republic of China
on cross-region value-added telecommunication business. In addition, the
business scope provided by Party B shall comply with the term and geographical
area specified in the business license of value-added telecommunication
business.
IV.
Rights of Both Parties
(I)
Rights of Party A
1. Party
A shall have the right to inform Party B of policy adjustments made by the
competent administrative authority and shall make corresponding adjustments
according to the policy requirements of competent administrative
authority.
2. Party
A shall have the right to, by its own or entrusting certain institutions,
inspect the content of the information and applications services provided by
Party B and their timeliness.
3. Party
A shall have the right to refuse to publish or delete the information that goes
against national laws, regulations and policies or is deemed improper by Party A
unavailable to customers; Party A shall also have the right to request Party B
to compensate for the subsequent negative influences to Party A’s economy and
goodwill.
4. Party
A shall have the right to request Party B to amend, correct or delete the
contents that shall be amended, corrected or deleted according to Party
A.
5. Party
A shall have the right to establish indices for evaluating services provided by
Party B, and to evaluate the services provided based thereon. The Party A shall
have the right to request Party B to adjust or amend the application services
which are found to be unqualified in three consecutive months; Party B may be
disqualified for providing application services in the event that the adjustment
is not made in a manner as required or not up to the requirements of Party A
after adjustment.
6. Party
A shall have the sole authority to decide the order and priority of application
services as provided by Party B at Party A’s WAP home site.
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7. Party
A shall have the right to conduct direction and supervision over the charging
standard of Party B’s businesses.
8. Party
A shall be entitled to reasonable allocation of charges. (Please refer to Part 6
hereof for the allocation of charges).
(II)
Rights of Party B
1. Party
B shall have the right to decide to either provide nation-wide services at Party
A’s WAP home site or provide services on Party A’s local WAP websites. Party B
shall file an application to Party A for nation-wide services and to local
branches of Party A for local services. However, with respect to the services
provided by Party B on the local websites of Party A, Party A will not conduct
settlement to Party B, but the local company of Party A will conduct the
settlement to Party B based on an independent agreement concluded by both
parties.
2. Party
B is entitled to determine, under the instruction of Party A, whether the
services are chargeable and the charging rates
3. Party
B is entitled to obtain statistical data of users’ access to the information and
application service contents as provided by Party B through
platform.
4. Party
A shall not transfer, publish or resell Party B’s information products in any
form to any third Party hereto without the prior written consent or
authorization of Party B.
5. Party
B shall be entitled to partial reasonable allocation of business charges.
(Please refer to Part 6 hereof for the allocation of charges).
6. Party
B shall have the right to request Party A to provided detailed statistical data
for reconciliation in case of considerable discrepancy between
statistical data of both parties.
V.
Confidentiality Provision
1. Assume
that both parties shall be obligated to maintain confidentiality. Neither party
may, in any way, disclose commercial secrets of each party to any third party.
The confidential information as described in this Agreement refers to the data,
price, quantity, technical solutions in relation to the Agreement and the
details of the Agreement and other materials and information in relation to the
business of each party, which are obtained or known by one party (including the
parent company, subsidiary, joint stock company and affiliated company) from the
other party.
2. Any
material and information that is disclosed hereunder from one party to the other
party shall be regarded as confidential information. The mentioned
confidential information which is obtained or known by one party from the other
party may not be disclosed to the third party and may not be used for any
purpose other than those stated in the Agreement.
3. The
persons (including but not limited to employees, representatives, agencies and
consultants of respective party) who are engaged in the cooperation or obtain or
know the mentioned confidential information shall also undertake the
confidentiality obligations.
4. The
confidentiality obligation shall survive within one year after termination of
this Agreement.
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VI.
Intellectual Property Right
1. Party
A authorizes Party B to use its trademark and company name for the purpose
agreed hereupon. Party B shall ensure proper and reasonable use of Party A’s
trademark and company name, shall not change, without authorization, or
misrepresent the image of Party A and any part of it, and shall not use Party
A’s trademark and company name for any purpose other than as expressly agreed
under this Agreement.
2. Party
A holds the copyright of all promotional materials and the creations, designs,
graphics, figures and words contained therein which are provided for Party B by
Party A in line of this Contract. Party B shall not use such materials and
contents for any purpose other than as agreed hereunder or allow any third party
to use, without the prior written consent of Party A.
3. Party
B ensures the contents contained in WAP as provided to Party A do not infringe
the intellectual property right of any third party. Any claim or dispute in
relation to the contents of WAP or arising from the Party A’s application of
contents of WAP shall be handled by Party B. Party B shall be held liable for
compensation in case of losses to Party A.
VII.
Charge Allocation and Settlement
Registered
(seal)
1. Party
A and Party B provide Mobile On-line business (via WAP) for Party A’s customers
jointly. Each Party shall have the right to conduct settlement over the business
charges. The settlement shall be based on the statistical data given by the
billing system of Party A.
2. The
settlement shall only apply to the nation-wide services as provided by Party B
at Party A’s WAP home site. The local services provided by Party B on local
websites of Party A are excluded from the scope of this Agreement.
3. If
Party A’s customers need to use Party A’s network resources when using Mobil
On-line business (via WAP), Party A shall own the subsequent communication
fees.
4. The
term of settlement shall commence as of the beginning of this project and end at
the expiration of this Agreement.
5. Party
A shall, by the network-wide billing system, charge the customers who use the
services at WAP home site of Monternet on behalf of Party B. 15% of the
information fees shall be paid to Party A as remuneration and 85% shall be paid
to Party B by Party A.
6. Party
A shall inform Party B of the receivable revenue (the remuneration of Party A
has been deducted) of last month before the 20th day of
each month. Party B shall issue a formal and legitimate invoice based on the
revenue provided by Party A and deliver it to Party A.
7. After
receiving the invoice issued by Party B and the invoice is proved to be correct,
Party A, according to the bank account information provided by Party B, shall
transfer the receivable revenue of Party B of last month into the account of
Party B within 10 working days.
8. Each
Party shall be responsible for its own tax payment arising from this
Agreement.
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9. The
settlement between Party A and Party B is completed by the billing system of
Party A; Party B may access to platform for reconciliation application in the
event that Party B holds any objection against the billing results. Party A
shall assist Party B to find the causes but will not change the settlement
amount of the month.
10. Party
B shall provide accurate bank account information for Party A.
Name of
the account: Beijing
AirInbox Information Technologies Co., Ltd
Bank of
deposit: ICBC Capital
Indoor Stadium Sub-branch
Account
No.: 0200053719200031688
VIII.
Force Majeure
1. If any
Party is prevented from performing any of its obligations due to an event of
Force Majeure (including war, serious fire, flood, typhoon and earthquake etc),
the time for performance of the obligations under this Contract shall be
extended by a period equal to the period of delay caused by such Event of Force
Majeure.
2. The
Force Majeure refers to the objective situations which could not be predicted
when the parties entered into this Contract and of which the occurrence and
consequences could not be avoided or overcame. The party affected by the event
of Force Majeure shall inform the other party of its occurrence by cable, fax or
telex as soon as possible, and thereafter send a certificate as issued by the
relevant authorities to the other party by EMS or registered letter for review
and confirmation within two weeks after its occurrence.
3. Should
the delay caused by any event of Force Majeure continue for more than one
hundred and twenty (120) consecutive days, the parties may terminate this
Contract.
IX.
Liability for Breach of Contract
1. In the
event that this Agreement cannot be carried out due to either Party’s breach of
this Agreement, the observant Party shall have the right to terminate this
Agreement and request compensation from the breaching Party for losses caused by
such breach.
2. In the
event of either Party’s breach of agreement which causes harmful social
influences or economic losses to the observant Party, the observant Party shall
have the right to investigate the other Party’s liabilities, request for
relevant economic compensation until the termination hereof.
X.
Settlement of Disputes
1. Any
dispute arising from this Agreement or in connection with this Agreement shall
be resolved by both Parties through consultations on equal basis.
2. If
negotiation fails, either Party may refer the dispute to Beijing Arbitration
Commission for arbitration, which shall be conducted in Beijing in accordance
with the Commission’s arbitration rules in effect at the time. The arbitration
award shall be final and binding upon both Parties.
XI.
Term of Agreement
1. This
Agreement shall come into force on January 1, 2008 and expire on December 31,
2008.
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2. During
the period of validity hereof, the Agreement shall automatically terminate if
both parties agree to terminate this Agreement.
3. In the
event that the Agreement fails to be carried out continuously due to Force
Majeure, the Agreement shall automatically terminate after two parties complete
all outstanding settlements.
4. If one
party fails to continue performance of obligations hereunder due to occurrence
of an event and the event is foreseeable, the party shall inform the other party
of the event within five working days after the party should have predicted the
event, and shall coordinate with the other party to complete all issues not
covered in the Agreement. In the event that one party shall sustain loss due to
failure of the other party for informing the party of the event timely, the
other party shall be liable for compensation therefor.
XII.
Miscellaneous
1. The
appendix to this Agreement, Monternet SP Cooperation and
Management Measures, Mobile On-line Section, has the same legal effect as
this Agreement.
2. The
matters not covered in the Agreement shall be solved by both parties through
amicable negotiation.
3. This
Agreement is made in duplicate, one copy for Party A and one copy for Party B
respectively. Each copy has the same legal effect.
Party A:
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China
Mobile
Telecommunications
Group
Corporation
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Party
B: Beijing
AirInbox Information Technologies Co., Ltd
(Special
Contract Seal of
Beijing
|
|
(Special Contract
Seal of China
Mobile
Telecommunications
Group Corporation)
|
AirInbox
Information Technologies Co.,
Ltd)
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||
Authorized
Representative: (signature)
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Authorized
Representative: (signature)
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Date:
June 18, 2008
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Date:
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No.
06, Haidian Local Tax Bureau, Beijing
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Special
seal for stamp tax, payment received
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Tax amount
seal 11,015.34
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WSPZZ:
No. 1768484
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January
13, 2009
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Place for Affixing of Tax
Stamps
(Seal
of Beijing AirInbox Information
Technologies Co., Ltd)
(Seal
of Beijing AirInbox Information
Technologies Co., Ltd)
Column
for Examination and Registration by Registration Authority:
Person-in-charge:(seal)
|
(Special
Seal of Beijing
AirInbox Information Technologies Co., Ltd Contract)
Technology
Contract Registration Authority (Special-Purpose Seal)
August
7, 2008
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