INFORMATION SERVICE AND COOPERATION AGREEMENT
by and among
Shanghai Sifang Information Technology Co. Ltd.,
and
Shanghai TCH Data Technology Co. Ltd.
INFORMATION SERVICE AND COOPERATION AGREEMENT
THIS INFORMATION SERVICE AND COOPERATION AGREEMENT ("this Agreement") is
entered into on this 1st day of June, 2004 by and between Shanghai Sifang
Information Technology Co. Ltd. ("Party A"), a domestically funded company
limited by shares, organized and existing under the laws of the People's
Republic of China (the "PRC"), and Shanghai TCH Data Technology Co. Ltd. ("Party
B"), a wholly foreign-owned enterprise organized and existing under the laws of
the PRC. Each of Party A and Party B shall hereinafter individually be referred
to as a "Party" and collectively as the "Parties".
WHEREAS:
(1) Party A engages in such business as wireless telecommunications and
wireless information business in the PRC (the "Business"), and Party A has
entered into cooperation agreements regarding, among other things, short
messaging service with China Mobile Telecommunication Co., Ltd. ('"China
Mobile") ;
(2) Party B possesses expertise and resources on decoding, formatting,
sorting, processing, etc. of various types of information (the "information
services") involved in the Business;
(3) The Parties desire to cooperate so as to take advantage of each other's
strengths; and
(4) Party A intends to retain Party B to provide the information services
and Party B intends to retain Party A to provide transmission services (the
"transmission services").
NOW THEREFORE, the Parties hereby agree as follows:
ARTICLE 1 SERVICE AND PAYMENT
1. Information Services and Cooperation
The Parties hereby agree to:
A. appoint Party B, effective as of the date of this Agreement, as the
provider of information services relating to the Business as agreed to by
the Parties from time to time; and
B. appoint Party A, effective as of the date of this Agreement, as the
provider of transmission services, relating to the information reformatted
and processed by Party B, to mobile phone users through China Mobile and
other mobile operators, as agreed by the Parties from time to time.
2. Based on the services hereunder, Party A is entitled to settle the
services fees with China Mobile and other operators with whom Party A has
agreements. Upon such settlement, Party A shall transfer all the service fees
collected by Party A to Party B. In consideration for the transmission services
provided by Party A, Party B shall pay to Party A an annual fee, which fee shall
be based upon the costs associated with the transmission services.
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3. Party A agrees to provide the relevant transmission services listed in
Schedule B and required by Part B.
4. Party B agrees to provide the relevant information services listed in
the Schedules and required by Part A.
5. Unless otherwise agreed by both Parties in writing, neither Party shall
retain any third party to provide any of the services listed in Schedules A and
B hereof.
6. Should Party A enter into any service and cooperation agreement with
respect to wireless telecommunications or wireless information business with
China Mobile, China Unicom or any other mobile telecommunications operator in
the future, any service concerning information services listed in Schedule A
shall be delivered, in the manner of cooperation as stipulated herein, to Party
B to provide corresponding information services. Party A hereby confirms that
the said undertaking shall be irrevocable within the term or this Agreement.
ARTICLE 2 TERM, TERMINATION AND SURVIVAL
1. Term.
This Agreement shall be effective upon execution hereof by authorized
representatives of the Parties and shall remain effective for a period of ten
(10) years, which will be automatically renewed for another one (1) year upon
expiry of each term unless Party B notifies Party A of its intention not to
renew thirty (30) days before the current term expires. Party A and Party B
shall not terminate this Agreement within the term of this Agreement.
2. No Further Obligations.
Upon termination of this Agreement, Party B shall have no further obligation to
render any service hereunder to Party A.
3. Survival.
Termination of this Agreement shall be without prejudice to any obligation by
one Party to another Party which shall have accrued prior to such termination.
ARTICLE 3 INTELLECTUAL property rights
Party B shall be the sole and exclusive owner of all rights, title and interests
to any and all intellectual property rights arising from the performance of this
Agreement, including but not limited to, any copyrights, patents, know-how and
otherwise, whether developed by Party A or Party B based on Party B's
intellectual property.
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ARTICLE 4 confidentiality
Party A agrees to use all reasonable means to protect and maintain the
confidentiality of Party's B's confidential data and information acknowledged or
received by Party A by accepting the exclusive information services from Party B
(collectively the "Confidential Information"). Party A shall not disclose or
transfer any Confidential Information to any third party without Party B's prior
written consent. Upon termination or expiration of this Agreement, Party A
shall, at Party B's option, return all and any documents, information or
software containing any of such Confidential Information to Party B or destroy
or delete all of such Confidential Information from any and all memory devices,
and cease to use the same. This Section shall survive after any amendment,
expiration or termination of this Agreement.
ARTICLE 5 MISCELLANEOUS
1. Entire Agreement.
This Agreement constitutes the entire agreement among the Parties hereto with
respect to the subject matter hereof and supersedes all prior agreements,
understandings or arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
2. Amendment.
No variation of or supplement to this Agreement shall be effective unless both
Parties have agreed in writing and have respectively obtained the required
authorizations and approvals (including an approval from the board of directors
of the overseas holding company).
3. Waiver.
Any waiver on the part of any Party hereto of any rights or interests under this
Agreement shall not constitute the waiver of any other right or interest or any
subsequent waiver of such right or interest. The failure of any Party at any
time to require performance of any provision of this Agreement shall not affect
the right of such Party to require full performance thereof at any time
thereafter.
4. Assignment; Obligations of Transferees.
This Agreement shall be binding upon the Parties hereto and their respective
successors and t, permitted transferees and assigns. Without the prior written
consent of the other Party hereto, neither Party shall assign or transfer any
rights or obligations that it may have under this Agreement.
5. Governing Law.
The execution, interpretation, performance and termination of this Agreement
shall be governed by and construed in accordance with the laws of the PRC.
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6. Notice.
Any notice, request or other communication to be given or made under this
Agreement shall be in writing. Any such communication may be delivered by hand,
airmail, facsimile or established courier service to the Party's address
specified below or at such other address as such Party notifies to the other
Party from time to time, and will be effective upon receipt (if a communication
is delivered by facsimile, the time of the receipt of the facsimile shall be the
time when the sender receives a confirmed transmittal receipt).
For Party A:
Shanghai Sifang Information Technology Co. Ltd.,
Attention:
Fax:
For Party B:
Shanghai TCH Data Technology Co. Ltd.
Attention:
Fax:
7. Severability.
The invalidity, illegality or unenforceability of any provision of this
Agreement shall not affect the validity, legality or enforceability of any other
provision. This Agreement shall continue in full force and effect except for any
such invalid, illegal or unenforceable provision.
8. Headings.
The headings throughout this Agreement are for convenience only and are not
intended to limit or be used in the interpretation of the provisions of this
Agreement.
9. Language and Counterparts.
This Agreement shall be in the Chinese language. This Agreement and any
amendment hereto may be executed by the Parties in separate counterparts, each
and all of which shall be original and all of which together shall constitute
one and the same instrument.
10. Dispute Resolution.
All disputes arising from the execution of, or in connection with this Agreement
shall be settled through amicable consultation between the Parties. If no
settlement can be reached through consultation, the dispute shall be submitted
to the China International Economic and Trade Arbitration Commission (CIETAC)
Shanghai Commission for arbitration, in accordance with its arbitration rules
then in effect. There shall be three arbitrators. The arbitration shall be held
in Shanghai. The language of the arbitration shall be in Chinese. The arbitral
award shall be final and binding on both Parties. The costs of the arbitration
shall be borne by the losing Party, unless the arbitration award stipulates
otherwise.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized signatories as of the day and year first
written above.
[Remainder of the page intentionally left blank]
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[Execution Page]
Party A: Shanghai Sifang Information Technology Co. Ltd.,
[Executed pursuant to corporate seal]
Authorized representative
Party B: Shanghai TCH Data Technology Co. Ltd.
[Executed pursuant to corporate seal]
Authorized representative
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Schedule A
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Contents of Information Services
--------------------------------
Within the scope that is permitted by law, the information services
provided by Party B shall include:
Decoding, formatting, sorting, processing, etc. of various types of
information, which information shall include but not be limited to financial
information.
Schedule B
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Contents of Transmission Services
---------------------------------
Within the scope that is permitted by the law, the contents of the
transmission services provided by Party A shall include:
1. Providing mobile information sending platform;
2. Providing sales network; and
3. Coordinating with mobile services operators.
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