Exhibit 4.55
CONFIDENTIAL TREATMENT REQUESTED BY LINKTONE LTD. THIS EXHIBIT HAS BEEN
REDACTED. REDACTED MATERIAL IS MARKED WITH "[***]" AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
EMI CONFIDENTIAL
Contract No.__________
MUSIC CHINA DIVISION
(a division of EMI GROUP HONG KONG LIMITED)
Mobile Phone Ringback Tone Contract
Order Form
LTWJ-4046
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Mobile Service Provider ("MSP"): Jurisdiction of MSP's Registration: China
Shanghai Linktone Consulting Co., Ltd.
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MSP Headquarters Address: City: Country/Region: Zip Code:
0xx Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx Xxxxx 200001
000 Xxxx Xxxxxxx Xxxx
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MSP Contact Tel: 000-00000000-0000
(must be the address aforesaid): Fax: 000-00000000
Xxxxxx Xxxxx Email: Xxxxxx.Xxxxx@xxxxxxxx.xxx
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Territory
People's Republic of China (not including Hong Kong SAR, Macao SAR and Taiwan province)
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Deposit: In addition to the payments hereunder, MSP shall pay deposit to EMI at
the amount of $0. In the event that EMI is required to make payment as a result
of MSP's failure in the performance hereof, EMI shall have the right to draw
from such deposit. Upon expiration or termination of this Contract, EMI shall
promptly return to MSP the balance of the deposit without any interest accrued
thereon.
Upon execution hereof, MSP agrees to accept and comply with all the provisions
under this Mobile Phone Ringback Tone Contract Order Form ("Order"), and the
Ringback Tone Terms and Conditions attached hereto ("Terms"), Wholesale Price
Calculation Sheet ("Price Sheet") and the provisions of other attachments.
Order, Terms, Price Sheet and all the attachments shall be deemed hereunder as
an integral part of this Contract, constituting the agreement between the
parties hereto.
EMI MSP
Name of Signature: /s/ Xxxxx Xxxxxxxx Name of Signature: /s/ Yang Lei
Title: President Title: CEO
Date: January 18, 2005 [EMI seal] Date: January 18, 2005 [Linktone seal]
Confirmation by EMI authorized regional agent:
Shanghai Bu Sheng Music Culture Communications Co., Ltd. (Seal)
EMI CONFIDENTIAL
Contract No.__________
MSP
MOBILE PHONE RINGBACK TONE TERMS AND CONDITIONS
Terms that are not defined herein shall have the meaning ascribed to them in the
Order.
ARTICLE 1. TERM
This Contract shall become effective on February 1, 2005, and continue to
be effective for a period of 12 months. This Contract can be terminated pursuant
to the provisions hereunder.
ARTICLE 2. DEFINITIONS
For the purpose of this Contract, (a) "Ringback Tone" means clips of
recording selected from a single "Authorized Songs" (as defined in Article 3.1),
the length of which is not more than 40 seconds; (b) "Caller" means the person
making calls to the mobile phone of the customer; (c) with respect to Ringback
Tone, "Broadcast" means the transmission of connect signals from MSP's server
(or mirror server based on network) to the Caller via public voice phone
network, indicating that the user's mobile is receiving the transmission of
signals from the incoming call, which is an alternative to the traditional
ringing tone at intervals; (d) "Service" means the service owned and operated by
MSP (or third parties accepted by EMI pursuant to Article 13.2 hereof) for
provision of Ringback Tone service to users; (e) "User" means the end user (or
owner) of mobile phones in the Territory, to whom the Ringback Tone will be
transmitted upon dialing of their mobile phones as a result of agreement entered
into between the User and MSP (or third parties accepted by EMI pursuant to
Article 13.2 hereof).
ARTICLE 3. CONTENT OF RINGBACK TONE
3.1 EMI Song Recordings. Ringback Tone used hereunder shall be the audio
recordings ("Master Recordings") owned or controlled by EMI or EMI related music
brands that are set forth on the authorized songs list ("Authorized Songs
List"), which shall be provided by EMI to MSP from time to time during the term
hereof. Only the recordings on the Authorized Songs List shall be authorized for
use (each an "Authorized Song"). MSP may obtain copies of Authorized Songs by
payment through channels recognized by EMI. Authorized Songs (including relevant
data), Ringback Tone and other contents incorporating materials provided by EMI
to MSP shall be hereinafter referred collectively as "EMI Content".
3.2 Withdrawal of Authorized Songs. EMI reserves the right to make amendments
from time to time to the Authorized Songs List, including increasing or
decreasing the songs on such list through notice or providing new Authorized
Songs List. If EMI decides to withdrawal its authorization granted to any
Authorized Songs, MSP shall within 5 business days after receipt of the notice
cease its use and transmission of Ringback Tone related to the Authorized Songs
that have been deprived of their authorizations, which means that MSP shall not
continue its service on its service page nor cause new users to customize and
use such Authorized Songs that have been deprived of their authorizations.
However, services of songs included in ringback melodies that have already been
purchased by existing users shall continue to be subject to MSP's current
warranties (which should be in conformity with the agreement between the parties
prior to the issuance of notice by EMI indicating its withdrawal of
authorization granted to relevant songs), provided that MSP shall provide EMI
with relevant documents for verification. EMI shall not set requirements on the
minimum number of Authorized Songs set forth in the Authorized Songs List.
3.3 MSP agrees that EMI has the right to entrust Shanghai Bu Sheng Music Culture
Communications Co., Ltd, EMI's authorized regional general agent, to implement
this Contract (including arrangements in connection with financial affairs).
ARTICLE 4 PRODUCTION AND TRANSMISSION OF RINGBACK TONE
4.1 Authorization. During the term of this Contract, EMI grants MSP a
non-exclusive license within the territory, and MSP shall not transfer this
Contract to any third parties or solicit secondary partners. Subject to the
provisions hereof, MSP may (a) produce Ringback Tones based on clips from
Authorized Songs; (b) broadcast to Users digital Ringback Tones; (c) solely for
trial purposes by Users prior to their selection of Ringback Tones, transmit
such digital Ringback Tones included in MSP's service to Users or potential
Users through streaming (as it is generally defined), which does not constitute
any independent sampling or part of similar services; and (d) for the purpose of
transmitting Ringback Tones and providing services, produce and save Ringback
Tones in MSP's network server. Except for the aforesaid purposes, MSP shall not
reproduce, transmit or further develop or use any EMI Content without written
consent from EMI. For the avoidance of doubt, (i) except for the purpose set
forth in Article 4.1(c), MSP shall only transmit Ringback Tones to Callers on
behalf of Users according to the provisions of this Contract; (ii) Ringback
Tones shall be restricted to the mobile phone number of Users, and shall not be
used in any fixed line network or other services; and (iii) MSP shall not in any
circumstances permit or authorize Users, Callers or other person to download or
save copies of Ringback Tones in any media. Without limitation to the foregoing,
Ringback Tones authorized from transmission must be protected by electronic
coding technology, so that the receiver will be unable to download or reproduce
such Ringback Tones.
4.2 Restrictions. Except for purposes of selection and coding for production of
Ringback Tones, MSP shall not revise, edit, mix, rearrange, translate or make
any other change to the Authorized Songs. MSP shall not delete any data or
security encryption components (such as electronic watermark) in Authorized
Songs (or their delivery format) during the production of Ringback Tones. Each
piece of Ringback Tones shall be a continuous slip selected from an Authorized
Song, including the voice of relevant artist. MSP shall not mix the content of
more than one Authorized Song or mix the content of one Authorized Song with any
other content (whether voice, image or video) to produce Ringback Tone.
4.3 Editor's Recognition. Prior to the provision of Ringback Tones in its
services, MSP shall at its own expense, provide to EMI copies of Ringback Tones
in a format recognized by both parties. Without limitation to EMI's other rights
in connection with Ringback Tones and the production and transmission thereof,
EMI may at its sole discretion reject the content of any Ringback Tone (it is
agreed by the parties that, if EMI does not bring forward its rejection to
certain Ringback Tones in advance, MSP may provide such Ringback Tones in its
services without express approval from EMI). EMI has the right to bring forward
its rejection to the content of Ringback Tones at any time prior to or after the
completion of production of the Ringback Tone. If EMI rejects the content of the
Ringback Tone, MSP shall immediately cease use of any transmission of such
Ringback Tone, and shall not re-select from the same Authorized Song for
producing the Ringback Tone, until EMI gives express written consent thereto.
However, services of songs included in ringback melody that have already been
purchased by existing users shall terminate subject to MSP's current warranties
(which should be in conformity with the agreement between the parties prior to
the issuance of notice by EMI indicating its rejection to relevant songs),
provided that MSP shall provide EMI with relevant documents for verification.
After such written approval, EMI still has the right to reject the content of
relevant Ringback Tones. MSP shall comply with all other provisions concerning
the content of the format of Ringback Tones that may be agreed upon between EMI
and MSP in the future.
4.4 Territorial Restrictions. All servers or other media used by MSP for the
production, storage and transmission of Ringback Tone or the storage of other
EMI Content shall be located within the Territory provided hereunder. MSP shall
take all commercially reasonable efforts to ensure the implementation of
territorial restrictions hereunder, including to make sure whether such users
are residing within the Territory. MSP shall at its own expense update its
equipment and customer
authentication system, so as to maintain its best operation status for rendering
services within the Territory.
4.5 Service, Security. MSP shall at its own expense provide equipment necessary
for rendering its service. MSP agrees that such equipment shall be up to the
industry standard. MSP undertakes to protect EMI Content from any unauthorized
use, reproduction, revision and distribution. For such purposes, MSP shall keep
and deal with EMI Content at the highest industry standard, which will be
verified by EMI. If any potential security risks have been discovered, MSP shall
promptly notice EMI and take all necessary measures to remedy the same. Subject
to reasonable prior notice and in compliance with Article 8 hereof, EMI has the
right to conduct on-site investigation to MSP's work process and conditions of
equipment within working hours of MSP, so as to ensure compliance with the
provisions of this Article 4 hereof.
4.6 MSP Affiliates. Ringback Tones authorized by EMI to MSP hereunder may be
used by affiliates of MSP ("MSP Affiliates"), provided that the scope and terms
for the use of Ringback Tones by MSP Affiliates shall be in compliance with the
provisions hereunder, and that MSP shall be fully responsible for the conduct of
MSP Affiliates. It is hereby acknowledged that, Shanghai Weilan Computer Co.,
Ltd. and Shanghai Unilink Computer Co., Ltd. are MSP Affiliates. If there are
newly added affiliates of MSP, both parties shall separately agree thereupon.
ARTICLE 5 NOTICE AND LOGO
5.1 Notice; Title of Songs and Name of Artists. At User's selection or audition
of Ringback Tone, MSP shall indicate distinctively the standard EMI copyright
notice ("Copyright Notice"), or provide Users with the route towards such
notice. Under any circumstances, if MSP indicates such notice or provides the
route towards such notice for the provider of other similar content, MSP agrees
that it shall indicate the EMI Copyright Notice or provide the route towards the
notice at least in the same distinctive manner. MSP shall xxxx each piece of
Ringback Tone with the title of song and name of artist set forth in the
Authorized Songs List. MSP shall use the title of song and name of artist solely
for the purpose of marketing and promoting the Ringback Tones in its services,
and shall not use the same for the promotion of this Service or MSP's other
products and services (such as telephone ringing, mobile phone screen background
image, or mobile phone screen saver, etc.).
5.2 Use of EMI Trademark. At EMI's request, MSP shall exhibit the name, xxxx or
other trademark of EMI (collectively, the "EMI Logo") with distinctive and
visible size at a place adjacent or connecting with Ringback Tone. Except for
the use of EMI Logo explicitly authorized under this Article 5, MSP shall not
use any EMI Logo without EMI's written consent. Any permitted use of EMI Logo
shall be to the benefit of EMI.
ARTICLE 6 INTELLECTUAL PROPERTY RIGHTS
6.1 EMI's Rights. During the cooperation between EMI and MSP, copyrights and
other intellectual property rights contained in all the EMI Logo, Master
Recording, Authorized Songs, Ringback Tone and other EMI Content (collectively,
the "EMI IP Rights") shall remain the exclusive property of EMI. Any provisions
hereof shall not be construed as a transfer of EMI IP Rights. Neither MSP or the
users authorized hereunder shall obtain any rights (including ownership) in
connection with the EMI IP Rights. MSP shall not challenge or compete for or
assist other parties to challenge or compete for the legality, enforceability of
EMI IP Rights or EMI's ownership of its intellectual property rights.
6.2 Enforcement. If MSP is aware of any actual or potential infringement of EMI
IP Rights, MSP shall promptly notify EMI and provide EMI with reasonable
assistance, the expenses of which shall be borne by EMI; provided, however, if
such actual or potential infringement of EMI IP Rights is resulted from MSP's
failure to perform its obligations hereunder to protect EMI Content, MSP shall
be responsible for relevant expenses arising therefrom.
ARTICLE 7 PAYMENT FOR AND USE OF DATA
7.1 Price. In consideration of the authorization granted to MSP hereunder, MSP
agrees to pay wholesale price ("PPD") to EMI at the time set forth in the
schedule. MSP shall be responsible for all the collection risks in connection
with the payment from Users and other sources arising from its services, except
for a Force Majeure Event (as defined in Article 9.1). PPD shall be the amount
payable upon selection of each Ringback Tone, regardless of whether the user has
actually paid such amount to MSP. Under any circumstances, MSP shall make full
payment of PPD pursuant to the provisions hereof.
7.2 Payment Overdue. For any unpaid amount when it becomes due, MSP shall pay
interest to EMI calculated at the lesser of (a) 1.5% per month, or (b) highest
interest rate permitted by law.
7.3 Tax. MSP shall be solely responsible for the payment of all the taxes and
charges in connection with sales, use, commodity and services (not including
income tax payable by EMI for its profits).
7.4 Price Adjustment. If due to reasonable cause EMI needs to increase or revise
PPD, EMI shall send written notice to MSP to such effect (it is agreed by MSP
and EMI that PPD shall not be revised more than twice during the Term hereof,
and that if the scope of increase or adjustment is more than 20% of the original
price, EMI shall obtain prior written confirmation from MSP on the scope of such
adjustment), and the price adjustment shall become effective 30 days thereafter.
7.5 Data and Report. In addition to such reports to be submitted by MSP
hereunder, MSP shall each week deliver to EMI a report (in Excel or other
printable format agreed by both parties) about Ringback Tone service in the
previous week. Such report shall be delivered together with the sales report
(for details, please refer to the second section of the price schedule).
ARTICLE 8 CONFIDENTIALITY
8.1 Definitions. "Confidential Information" shall refer to all the information
contained hereunder (not including the existence of this Contract, and the name
and address of parties hereto), and information relating to the business
operation of EMI or MSP in any format whatsoever. However, Confidential
Information does not include: (a) information obtained by the receiving party
prior to or at the time of disclosure by the disclosing party; (b) information
known to the general public not as a result of any violation by the receiving
party; (c) information independently developed by the receiving party without
access to the confidential information of the disclosing party; (d) information
lawfully obtained from third parties.
8.2 Obligations. The receiving party acknowledges the confidential nature of the
disclosing party's Confidential Information, and agrees not to disclose the
disclosing party's Confidential Information to any third parties, nor use such
Confidential Information for any purpose whatsoever without written consent from
the disclosing party. Both parties hereto agree to take reasonable protective
measures no less restrictive than such measures adopted by the receiving party
for the protection of its own Confidential Information, for the protection
against any unauthorized or unintentional disclosure of the Confidential
Information of the other Party. The receiving party may disclose the disclosing
party's Confidential Information if required by law, administrative rules,
subpoena or other legal proceedings, provided that the receiving party shall
make notice to the disclosing party and provide the disclosing party an
opportunity to seek protective measures against such disclosure (both parties
agree that if the disclosing party fails to obtain or seek any protective
measures, the receiving party shall be released from any obligation in
connection with the required disclosure of the disclosing party's Confidential
Information.
ARTICLE 9 LIMITATIONS ON LIABILITY
9.1 Force Majeure. Neither Party hereto shall be liable for its failure or delay
in the performance of its obligations hereunder due to a Force Majeure event,
including without limitation, commercial disputes, acts of God, natural
disasters, government acts, communication breakdown, change in government
policy, fire and other casualties.
9.2 Specific Damages. Except for (a) indemnification obligations of each Party
under Article 11 hereof; (b) any unauthorized use, reproduction, distribution or
any other exploitation of EMI Content or other activities in violation of
Article 4 hereof on the part of MSP (including third party activities set forth
in Article 13.2 hereof); (c) violation of Article 8 hereof, under no
circumstances shall any Party hereto be liable for any indirect, incidental,
specific or consequential damages, whether or not these damages can be predicted
or prevented in advance.
ARTICLE 10 REPRESENTATIONS AND WARRANTIES
10.1 General Provisions. Both parties hereto mutually represent and warrant
that, (a) they have the rights and capacity to execute and perform this
Contract; (b) the execution and performance of this Contract does not constitute
violation of any third party interests or the provisions of any contract to
which it is a party thereto, or any laws and regulations applicable to such
party (including laws concerning protection of personal information).
10.2 EMI. EMI further represents and warrants that, EMI owns or will obtain the
wireless use right license from the original copyright owner of the recordings
contained in the Authorized Songs List which will be used in the services
hereunder (not including copyrights of clips of such songs), and will therefore
pay all relevant fees, royalties and other expenses to third parties (such as
the artist, producer and labor union).
10.3 MSP. MSP further represents and warrants that it shall observe all
applicable laws and regulations, and shall obtain from third parties all the
authorizations necessary for MSP's activities hereunder, and pay all relevant
fees, royalties and other expenses thereto, except for such amounts set forth in
Article 10.2 hereof.
10.4 Limitation on Warranties. Except for the representations and warranties
expressively made hereunder, EMI shall provide the authorized content as is to
MSP and make no further warranties. MSP acknowledges that it has not relied on
any representations and warranties by EMI other than such representations and
warranties that EMI explicitly made hereunder.
ARTICLE 11 INDEMNIFICATIONS
11.1 General Provisions. If any Party (the "Indemnifying Party") is in violation
of this Contract, the Indemnifying Party shall indemnify and hold harmless the
other Party and its executives, directors, employees or representatives (the
"Indemnified Party") from any liabilities, damages, losses, claims or economic
deficit, inducing the payment of reasonable legal fees and investigation fees
arising from third party claims or the violation of warranties made by the
Indemnifying Party.
11.2 Decision of Indemnification. If the Indemnified Party intends to seek for
indemnification for any third party claims, it shall notify the Indemnifying
Party to such effect. Even if the Indemnified Party fails to notify the
Indemnifying Party, the Indemnifying Party shall not be released from such
liabilities, unless the Indemnifying Party suffers substantial loss due to the
Indemnified Party's failure in making such notice. The Indemnifying Party has
the right to defend against relevant lawsuits, and the Indemnified Party shall
cooperate with the Indemnifying Party in such defense, relevant costs and
expenses shall be borne by the Indemnifying Party. Without limitation to the
rights of EMI or MSP hereunder, the Indemnifying Party shall not settle relevant
claims in a way that may impose burden or liabilities upon the Indemnified Party
without consent of the Indemnified Party, provided that the Indemnified Party
shall not unreasonably withhold or delay its approval to the proposal suggested
by the Indemnifying Party.
ARTICLE 12 TERMINATION
12.1 Termination upon Default. In addition to such remedies provided by law, any
party hereto shall have the right to terminate this Contract immediately if the
other party is in violation of this Contract and fails to remedy such violation
within 30 days after receipt of notice thereof, and shall not have any further
obligations to the other party.
12.2 Additional Rights of Termination. In addition to the termination right set
forth in Article 12.1 hereof, EMI has the right to terminate this Contract
immediately upon occurrence of any of the following: (a) MSP's sale, lease or
otherwise transfer of all of its assets to other entities; (b) any change in the
ownership or control of MSP (either by merger, joint venture or transfer of
equity ownership) which results in the ownership or control of MSP to be
obtained by legal person engaging in piracy activities or any competitor of EMI;
(c) EMI enters into voluntary or involuntary bankruptcy procedures, or a
receiver of its assets has been appointed for the benefit of its creditors.
12.3 Obligations After Termination. Upon expiration or termination of this
Contract, MSP shall: (a) immediately terminate transmission of Ringback Tones
and delete all the EMI Content that it owns, manages or controls and send
written certification to such effect; (b) pay EMI all the amounts payable
hereunder, provided that EMI shall not waive any of its rights hereunder or
according to law as a result of receiving any payment from MSP.
ARTICLE 13 MISCELLANEOUS
13.1 Similar Agreements. The execution of this Contract does not constitute any
restriction on similar agreements between any party hereto and any other person
or any services provided to third parties.
13.2 Third Party Contractors. Subject to prior notice to EMI, MSP may use
services provided by third party contractors, for the purpose of producing,
coding, operating or transmitting Ringback Tones, provided that such services
shall be in assistance of MSP and for the benefit of MSP, and shall be subject
to the following provisions: (a) MSP shall be responsible for the work of such
third parties on the presumption that the activities of such third parties shall
be deemed as activities directly implemented by MSP; (b) MSP shall use
reasonable efforts to ensure such third parties observe all the terms and
conditions hereunder, and MSP agrees that any violation on the part of such
third parties of the provisions hereunder shall be deemed as a violation by MSP.
Without limitation to the foregoing rights of EMI hereunder, EMI shall has the
following rights: (a) with respect to any third parties that MSP intends to
cooperate with, EMI reserves the right to reject at any time MSP's use of
services provided by such third parties, if EMI has reliable reason to believe
that such third parties fail to maintain the safety of any content provided by
EMI or have any other omissions; (b) without prior written consent from EMI, MSP
shall not engage any person to produce, code, operate or transmit Ringback Tone
or provide services on behalf of such person, whether or not such person owns
the retail operation trademark jointly with MSP. Subject to this Article 13.2,
under any circumstances MSP shall provide EMI with complete list of all the
third party contractors, and update the same during the term of this Contract.
13.3 Governing Law. This Contract shall be governed by and construed in
accordance with the laws of Hong Kong SAR, People's Republic of China. With
respect to any dispute arising from this Contract, both parties agree that if
such dispute can not be resolved within 20 days after consultations between the
parties, either Party may submit such dispute to China International Economic
and Trade Arbitration Committee for arbitration, the arbitration award of which
shall be final and binding upon both parties.
13.4 Notice. Except as specifically provided hereunder, any notice, request,
consent, approval or other communications that is necessary to be sent by one
Party to the other Party shall be in written form and delivered by personal
delivery, express service, confirmed fax, e-mail or registered mail, and the
receipt of which shall be kept. All communications shall be sent to the
following addresses:
If to EMI:
Shanghai Bu Sheng Music Culture Communications Co., Ltd.
Room 1303, Triple Five Xxxxxxxxxx Xxxxxxxx, Xxxx Xxxxxxx Xxxx, Xxxxxxxx
Attn: Xxxxxxx Xxxxx, CEO/Xxxx Xxxx, Finance Director
E-mail: xxxxxxx.xxxxx@xxxxxxxx.xxx/xxxx.xxxx@xxxxxxxx.xxx
Fax: x00 00 00000000
Copy to:
EMI Music Asia
Suites 2705-9 Tower 6
The Gateway, 0 Xxxxxx Xxxx
Xxxx Xxx Xxxx, Xxxxxxx,
Xxxx Xxxx
Attn: VP, Business Development and Anti-Piracy
New Media Director (Greater China)
Legal & Business Affairs Director
Fax: 000-0000 0000/25855663
If to MSP:
See contact info set forth in the Order.
All notices shall be deemed successfully sent upon (a) delivery to the
address of the other party, when personally delivered or via courier; (b) two
days after mail, if delivered by registered mail within the Territory; (c) such
date and time indicated on the confirmation of receipt, if sent by fax.
13.5 Transfer. This Contract shall be binding upon and inure to the benefit of
both parties and their agents, permitted successors and assignees.
13.6 Relationship Between Parties. There does not exist any relationship of
joint venture, joint equity or agent between the parties hereto. Both parties do
not intend to establish any of such relationship by entering into this Contract.
13.7 Announcement. Neither Party shall make any comment concerning the other
party or its services in any press release, public announcement, marketing or
promotional materials, whether in oral or written form, except that (a) specific
written consent has been obtained from the other party or (b) it is required by
law.
13.8 Amendment; Waiver. This Contract shall not be amended, revised or replaced
without written agreement by the parties hereto. Neither party shall waive any
provision hereof without obtaining legal instrument signed by the other party.
Any party's waiver of compliance to any clause hereof for one or more times does
not impact the right of such party to enforce such clause in the future.
13.9 Severability. If any provision of this Contract shall be held to be
invalid, illegal or unenforceable, the remainder of this Contract shall remain
in full force and effect.
13.10 Third Party Beneficiary. Except for the circumstances explicitly provided
hereunder, this Contract does not and shall not be construed to establish any
third party beneficiary, or transfer of right to any third party.
13.11 Injunctive Relief. MSP agrees that any unauthorized use of EMI Content
shall constitute infringement of copyright and violation of the rights of EMI,
for which EMI will be unable to obtain sufficient relief under law. Therefore,
MSP agrees that in addition to any other remedies that EMI may have under law,
EMI shall have the right to require that an injunctive relief be issued against
such unauthorized use of EMI Content.
13.12 Survival. Article 2 and Article 6-Article 13 shall survive after the
expiration or early termination of this Contract.
EMI CONFIDENTIAL
Contract No.__________
MSP
WHOLESALE PRICE CALCULATION SCHEDULE (RINGBACK TONE)
Terms that are not defined herein shall have the meaning ascribed to them in the
Order and Terms and Conditions.
Article 1. Payment. Subject to offset of the Advance Payment mentioned
hereunder, within 15 business days at the beginning of each month, MSP shall
submit to EMI a monthly sales report according to the total sales amount of
Ringback Tone in the previous month in accordance with Article 2 of this
Schedule. Within 10 business days after receipt of written confirmation and
service invoice at relevant amount issued by EMI, MSP shall pay such fees to
EMI. The amount of such payment shall be equivalent to the wholesale price
(Wholesale Price or "PPD") of each Ringback Tone produced from EMI song
multiplied by the total sales amount of Ringback Tone in such month.
"Advance Payment" shall refer to the advance payment MSP should pay to EMI
at the execution of this Contract, the total amount of which shall be [***].
During the Term hereof, the Advance Payment may serve to offset the monthly
payment by MSP to EMI according to this Schedule. The Advance Payment is not
refundable unless and until this Contract is terminated due to default by EMI or
Force Majeure event. In the event that this Contract is terminated due to
default by EMI or Force Majeure event, EMI shall refund MSP the balance of
Advance Payment already paid by MSP but has not yet been served to offset any
payment hereunder.
"PPD" shall refer the higher of: (a) [***] and (b) the product of (i) EMI's
revenue share percentage multiplied by (ii) [***].
A "Ringback Tone Sale" shall refer to a piece of Ringback Tone that MSP (or
a third party reseller authorized by EMI hereunder) has sold or granted the User
with such right to use a piece of Ringback Tone on a wireless phone number
during certain period. For the avoidance of doubt: (i) if a User extends or
updates (without regard to period) the same Ringback Tone on certain mobile
phone number, it shall be deemed as a new sale; (ii) each sale shall not include
more than one Ringback Tone and one mobile phone number. For the purpose of
illustration, if a user is authorized to use 5 Ringback Tones on 2 mobile phone
numbers, it shall be deemed a sale of 10.
Without prior written consent from EMI, MSP and any authorized third party
reseller shall not provide or sell services in barter trade or similar manner.
Upon EMI's approval, all parties shall negotiate to agree on a fair market value
for calculation of gross income.
Without prior written consent from EMI, MSP and any authorized third party
telecom carrier shall not use the EMI Ringback Tone in any other business mode,
or directly or indirectly obtain any other income, inducing (i) charges for
access, each piece of Ringback Tone, connection, occupancy of wireless network,
subscription and calling; and (ii) advertisement proceeds and income from
sponsorship during the services. If there is any business mode or income, MSP
shall further negotiate with EMI on allocation of such income.
All the income shall be calculated in RMB, and directly paid to Shanghai Bu
Sheng Music Culture Communications Co., Ltd., which shall issue invoice
accordingly.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AND CONFIDENTIAL TERMS HAVE BEEN
OMITTED
Article 2 Reporting. MSP shall submit to EMI a report on the payment to be made
in each month, together with sufficiently detailed information on such amount
payable to EMI, for verification by EMI. In addition, within 15 business days at
the beginning of each month during the Term of this Contract, MSP shall submit
monthly report ("Sales Report") to EMI. Such report shall be in Excel format or
other generally accepted printable format, including detailed report on the
sales of the previous month (for example, on September 15, 2003, Friday, MSP
shall submit a report on the sales occurred during the period between August 1,
2003 and August 31, 2003). The Sales Report shall at least include the following
information for the applicable month: (a) list of each Ringback Tone that has
been sold (itemized per title of song, name of artist and ISRC); (b) location
within the Territory where each piece of Ringback Tone has been sold; (c) gross
income and net income based on such information; (d) aggregate amount; and (e)
other information reasonably required for the purpose of its own calculation and
reporting. Sales Report shall be submitted in the specific format provided by
EMI for such purposes, which can be amended by EMI from time to time. Both
parties shall cooperate with each other to coordinate their reporting system.
Article 3 Audit. During the Term of this Contract and one year thereafter, MSP
shall maintain necessary documents and records for investigation by EMI. During
the Term of this Contract and one year thereafter, EMI has the right to conduct
an audit once in each year to relevant documents of MSP, to verify all the
numbers indicated in all the reports, and such amount paid to EMI hereunder.
Such audit shall be conducted at the expense of EMI, and upon no less than 10
days prior written notice to MSP. These documents and records shall be deemed as
valid to the extent they are maintained in normal business channels. After
audit, if EMI is determined that there is any mistake in the figures reported by
MSP or any short payment by MSP, EMI shall promptly deliver a copy of such
audit, indicating such error discovered through audit and reasonably detailed
basis for such conclusion. If errors discovered through such audit is higher
than 10% of the total amount originally reported by MSP for relevant period, MSP
shall reimburse EMI for all reasonable expenses in connection with such audit.
