EXCLUSIVE TECHNICAL AND CONSULTING SERVICES AGREEMENT
Exhibit
4.48
This
Exclusive Technical Consulting and Services Agreement (the "Agreement") is
entered into in Beijing as of February 8, 2009 between the following two
parties.
Party
A: KongZhong (China) Co., Ltd.
Party
B: Beijing Xinrui Network Technology Co., Ltd.,
WHEREAS,
1. 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.
2. Party
B, a wholly domestic invested company registered in PRC.
3. 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.
WHEREAS,
Party A and Party B, through friendly negotiation and based on the equality and
mutual benefit, enter into the Agreement as follows:
1.
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.
CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL AND CONSULTING SERVICES (THE
"FEE")
Party A and Party B agree that the fee
under this agreement shall be calculated monthly, based on a certain
percentage of the revenues of Party B for such month. Aforesaid percentage will
be determined and paid according to Appendix 2 which shall be further
negotiated.
3.
REPRESENTATIONS AND WARRANTIES
3.1 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 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.
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 Both
Parties agree that this article shall survive the modification, elimination or
termination of this Agreement.
5.
INDEMNITY
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.
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6.
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.
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.
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. 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.
NOTICES
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 confirmed separately.
11.
ASSIGNMENT
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.
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12.
SEVERABILITY
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.
AMENDMENT AND SUPPLEMENT
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.
GOVERNING LAW
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: (Seal)
PARTY B:
Beijing Xinrui Network
Technology Co., Ltd.,
Authorized
Representative: (Seal)
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