Cooperation Agreement on Monternet Multimedia Messaging Services - China Mobile Telecommunications Group Corp. and Beijing AirInBox Information Technologies Co. Ltd.
COOPERATION AGREEMENT
ON
MONTERNET MULTIMEDIA MESSAGING SERVICES
Party A: China Mobile Telecommunications Group Corporation.
Party B: Beijing AirInBox Information Technologies Co., Ltd
According to the principal of equality and mutual benefits, through
friendly negotiation, both parties agree to build up a cooperation relationship
with each other. In order to regulate the rights and obligations between two
parties, this Agreement is established. This Agreement is effective and binding
upon both parties.
1. Cooperation Principles
Based on the common interests and the mutual benefits, in the field of
mobile data WAP services, both parties shall perform this Agreement in good
faith and cooperate another party's task.
2. Cooperation Projects
"MMS" refers to the multimedia messaging services provided by China
Mobile. Its most significant feature is its support of multimedia functions and
its capacity to deliver full-functional content and information, which includes
the information in multimedia format such as word, picture, voice and data.
Party A, as the network operator, shall provide the platform for MMS and
communications services, and also provide to Party B the standards for
Monternet(TM) MMS service and technical standards for interfacing; Party B, as
the service provider, shall develop and provide application content services in
accordance with the standards provided by Party A. Party B may connect to Party
A's MMS platform to provide MMS service, subject to Party A's testing and
approval.
3. Obligation
(1). Party A's obligation
(a) Party A shall take advantage of the media, eg. TV advertisement and
posters etc. it controls to promote and advertise the main site of Monternet so
as to absorb the consumer to log on this site.
(b) Party A shall provide Party B with the Monternet MMS services criteria
and the technical interface standards to insure Party B may successfully connect
to the main site of Monternet.
(c) Upon the requirement from Party B, Party A shall provide the necessary
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training for Party B.
(d) Considering the MMSC system firewall of Party A and the interface of
Party B as the boundary, Party A shall be responsible for all the equipment's
maintenance at its side and insure the daily services of these equipment.
(e) Party A shall be responsible for the daily maintenance of the MMS
network platform and the equipment technical troubles caused by Party A to
insure the appliance services can run normally.
(f) Party A shall provide the network interface services for Party B
without any charges, and assist Party B to connect the application services with
the MMS network platform.
(g) Party B shall be responsible to establish the criteria and standards
for the MMS operation, notice Party B the criteria and standards entirely and
without diverges, and furnish a reasonable period to Party B to realize these
criteria and standards.
(h) For the services provided by Party B at the MMS network platform,
Party A shall collect fees from its customers for their use of Party B's
services pursuant to the pricing information provided by Party B and confirmed
by Party A, and settle the fee with Party B pursuant to relevant provisions
under Section 6 of this Agreement.
(i) Party A shall be responsible to provide the consultant and customers
services, to treat the customers' complaints, and shall immediately solve the
problems caused by Party A with regard to the network, the operation platform,
and charging problems, meanwhile, Party A shall notice the relevant situations
to Party B to request Party B to treat it as soon as possible if the problems
are caused by Party B.
(2) Party B's obligation
(a) Party B shall be subject to the cooperation requirements and
obligations specified in Monternet(TM) SP Cooperation Administrative Measures,
MMS Business Handbook, which forms an attachment to this Agreement.
(b) Party B shall use all kinds of promotional media (including WEB site,
WAP site, plane media and TV) to promote MMS service. Party B shall secure prior
consent from Party A before Party B uses Party A's name and business mark in
promotion of Monternet(TM) MMS service; without prior written consent of Party
A, Party B shall not use the name of "China Mobile" or "Monternet(TM)" to
conduct promotional activity unrelated to Monternet(TM) in any media.
(c) Party B shall be responsible to provide application server,
application software, information source, special line for application data and
other necessary equipment to the satisfactory of Party A on the basis of the
parties' cooperation project.
(d) Party B shall provide active collaboration in Party A's testing of
connection point, and undertake to provide MMS service in accordance with MMS
network platform business standards and connection point technical standards
provided by
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Party A.
(e) Using the connection point of Party A's MMSC system firewall with
Party B as the boundary, Party B shall be responsible for the maintenance of all
equipment on its own side, and to ensure smooth operation of such equipment.
(f) Party B shall immediately address the breakdown of application service
caused by itself, and take practical measures to prevent re-occurrence of such
breakdown. Party B shall be liable for any economic losses incurred by Party A
or the customer of Party A's MMS service caused by Party B.
(g) Party B shall negotiate and handle commercial arrangement with direct
providers of the application contents (such as the owner of image or music
copyright). Party B shall ensure the compliance of its information and service
with applicable state policies and regulations, cause no harm to consumers'
interest or infringe any intellectual property rights or relevant interest of
any third party. Party B shall be solely liable for the litigation thus
incurred.
(h) Party B shall not unilaterally provide other services not confirmed by
Party A to Party A's customers without Party A's prior written consent.
(i) Party B shall not provide to any other telecommunications service
operator the same content with those provided to Party A without regard to the
transmission means of the application service; otherwise, Party A may terminate
the application services provided by Party B on Party A's MMS & network platform
and cease making fee payments to Party B.
(j) Party B shall provide Party A with all clear and indiscriminate
information required for fee calculation for the services provided by Party B,
and shall assume all economic and legal liabilities related thereto.
(k) Party B shall provide Party A with all statistical information relating
to the consumption of Party B's MMS services by Party A's customers.
4. Rights of Parties
(1) Rights of Party A
(a) Party A shall be entitled to review or entrust qualified institution
to review the information provided by Party B and the content of Party B's
application services.
(b) Party A shall be entitled to refuse to transmit any information which
contravenes to state directives, regulations and policies and other contents
that Party A deems inappropriate, and demand compensation from Party B for any
adverse impact on Party A's business and reputation.
(c) Party A shall be entitled to demand Party B to amend, modify and
delete those contents which Party A deems necessary to do so.
(d) Party A shall be entitled to formulate targets for the application
services provided by Party B, and evaluate Party B's performance in accordance
with such
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targets. The evaluation methods are detailed in the attachment to this Agreement
- Chapter 9 of the Monternet(TM) SP Cooperation Administrative Measures, MMS
Business Handbook.
(e) Party A shall be entitled to give guidance and supervision of the
pricing policy of Party B's service.
(f) Party A shall be entitled to reasonable revenue. (See Section 6 of
this Agreement for detailed revenue sharing).
(2) Rights of Party B
(a) Party B shall be entitled to determine the pricing of its services
under Party A's guidance.
(b) Party B shall be entitled to obtain statistical data regarding
customer visits to the Party B's information and application service contents
through the network platform.
(c) Without Party B's consent or written authorization, Party A shall not
transfer, release or resell any information products provided by Party B to any
third party unrelated to this Agreement by any means.
(d) Party B shall be entitled to a reasonable share of the business
revenue. See Section 6 of this Agreement for detailed revenue sharing.
(e) In case of significant discrepancy between the statistics of Party A
and Party B, Party B may require Party A to provide detailed phone bills for
verification, the details of which are set forth in Chapter 6 of the
Monternet(TM) SP Cooperation Administrative Measures, MMS Business Handbook.
5. Confidentiality
(1) For purpose of this Agreement, "Proprietary Information" means any
information obtained by one party from the other party ("DISCLOSING PARTY")
during their cooperation which is developed, created or discovered by the
Disclosing Party, or be available to or transferred to the Disclosing Party that
are commercially valuable to the Disclosing Party's business. Proprietary
Information includes without limitation trade secrets, computer program, design
technology, idea, know-how, technique, data, business and product development
plan, customer's information and other information related to the business of
the Disclosing Party, or confidential information obtained by the Disclosing
Party from others. The Parties acknowledge that the Disclosing Party shall own
Proprietary Information, and such Proprietary Information is of significant
importance to such Disclosing Party. The cooperation relationship between the
Parties hereto has generated the relationship of confidence and trust related to
Proprietary Information between the parties hereto.
(2) Without prior written consent of the Disclosing Party, the other party
shall
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keep any of Proprietary Information in confidence and may not use or disclose to
any person or entity such Proprietary Information, except for normal performance
of the obligations provided hereunder.
(3) Both Parties shall bear non-disclosure responsibility for this
cooperation and the details of this Agreement. Without the prior written consent
of the other party, either party shall not disclose such cooperation and details
of this Agreement to any third party.
6. Revenue Sharing and Fee Settlement
(1) Party A and Party B cooperate to provide MMS service to Party A's
customers, and both parties are entitled to reasonable revenue.
(2) Telecommunications fee generated by use of Party A's network resources
to access Party B's services shall be solely owned by Party A.
(3) Party A shall, on behalf of Party B, collect service fee from its
customers accordingly for their use of Party B's services charge from such
service.
(4) Party A shall figure out the information fee receivable from its
customers for use of Party B's services, 15% of which shall be taken by Party A,
while the remaining 85% shall be paid to Party B.
(5) The basis of settlement: Monternet service fee bill shall be the basis
of settlement.
(6) Party B may, pursuant to the fee settlement bill issued by Party A,
conduct fee settlement with Party A's local subsidiary without entering into
separate agreement with Party A's local provincial subsidiary.
(7) Settlement period: China Mobile settles with Party B monthly.
(8) Fee calculation standards and settlement process are described in
Chapter 6 of Monternet(TM) SP Cooperation Administrative Measures, MMS Business
Handbook.
(9) Party A and Party B shall pay taxes arising out of the MMS service
revenue respectively.
(10) Party B shall provide Party A with its accurate bank account and
related information:
Name of Beneficiary: Beijing AirInBox Information Technologies Co.,Ltd
Opening Bank: Xin Jie Kou Branch, Industrial and Business Bank of China
Account No.:0200001309006796982
7. Liability for Breach
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(1) If any party's breach of this Agreement causes this Agreement
unenforceable, the non-breaching party shall be entitled to terminate this
Agreement and require compensation for any losses thus incurred.
(2) If any party's breach causes adverse social impact or economic losses
on the other party, the non-breach party shall be entitled to hold the breaching
party liable and demand corresponding economic compensation, or even terminate
this Agreement.
8. Disputes Settlement
(1) If any dispute arises relating the performance of this Agreement, the
parties shall settle it through friendly consultation;
(2) If the consultation fails to resolve the dispute, either party may
file to the Beijing Arbitration Commission upon its arbitration rule. The award
of the arbitration shall be final and with binding force upon both parties.
9. Term of This Agreement
(1) This Agreement shall become effective as of the date of its execution
and be effective for one year.
(2) The term of this Agreement may be automatically renewable for another
year unless otherwise terminated by one party giving a written notice to the
other party at least one month prior to its expiration.
(3) This Agreement may be automatically terminated upon agreement by both
parties during the term of this Agreement.
(4) If the occurrence of any force majeure events makes it impossible to
continue performance of this Agreement, this Agreement may be automatically
terminated upon settlement of all outstanding bills by both parties.
(5) If the occurrence of a certain event makes it impossible for one party
to continue performance of this Agreement, and if such event is foreseeable,
such party shall notify such event to the other party within five working days
after its reasonable forecast of such event, and cooperate with the other party
to complete all outstanding matters. If such party fails to notify the other
party of such event and thus make the other party suffer losses, such party
shall indemnify the other party correspondingly.
10. Miscellaneous
(1) Attachment to this Agreement, Monternet(TM). SP Cooperation
Administrative Measures, MMS Business Handbook, has the same legal effect with
this Agreement.
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(2) Any outstanding matter shall be addressed by both parties through
friendly negotiation.
(3) If any dispute arises relating the content or performance of this
Agreement, the parties shall settle it through friendly consultation; if the
consultation fails to resolve the dispute, either party may bring lawsuit before
a Chinese court with due jurisdiction.
(4) This Agreement is made in duplicate and each party shall hold one copy.
Each copy shall have the same legal effect.
Party A: China Mobile Telecommunications Group Corporation.
Authorized Agent: (signature)
Date: /s/ Ye Bing
Party B: Beijing AirInBox Information Technologies Co., Ltd
Authorized Agent: (signature)
Date: /s/ Yunfan Zhou