Mobile Value-Added Service Cooperation Agreement - China Unicom Co. Ltd. and Hurray! Solutions Ltd.
Mobile Value-added Service Cooperation Agreement
With China Unicom
Serial No. CUVAS-A2004-052
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Party A: China Unicom Co., Ltd.
Party B: Hurray! Solutions Ltd.
Date: March 29, 2004
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Table of Contents
Preface
Chapter 1 Purpose
Chapter 2 Definition
Chapter 3 Scope of Cooperation and Working Interface
Chapter 4 Customer Service Management Interface
Chapter 5 Security of Mobile Value-added Service
Chapter 6 Billing and Settlement
Chapter 7 Intellectual Property and Confidentiality
Chapter 8 Liability for Breach and Dispute Resolution
Chapter 9 Force Majeure
Chapter 10 Amendment or Termination
Chapter 11 Withdraw
Chapter 12 Contact and Bank Account
Chapter 13 Effectiveness and Miscellaneous
Exhibit 1: Interface Maintenance Responsibilities of the Parties
Exhibit 2: Information Source's Guarantee Letter Concerning the Security of
Networking Information
Exhibit 3: List of Information Concerning Party B's Mobile Value-added
Service
Signature page
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List of Service Exhibits
Exhibit 4: SMS
Exhibit 5: Voice Value-added Service
Exhibit 6: WAP Services
Exhibit 7: U-Mail
Exhibit 8: BREW
Exhibit 9: JAVA
Exhibit 10: U-Map Based on SMS Platform
Exhibit 11: U-Map Based on WAP Platform
Exhibit 12: U-Map Based on BREW Platform
Exhibit 13: U-Map Based on JAVA Platform
Exhibit 14: Mobile Stock Trading based on Securities E-commerce Platform
Exhibit 15: Power of Attorney and Signature Stamp of Authorized
Representatives
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Preface
1. This Cooperation Agreement (this "Agreement") is entered into as of March 29,
2004 in Beijing, by and between the following parties:
Party A: China Unicom Co., Ltd. (hereinafter referred to as the "Party A"), a
corporation established and existing in accordance with the laws of the People's
Republic of China, with registered office at Jia No.133 North Xidan Street,
Xicheng District, Beijing, People's Republic of China, its legal representative
is Wang Jiannan;
Party B: Hurray! Solutions Ltd. (hereinafter referred to as the "Party B"), a
corporate legal person established and existing under the laws of the People's
Republic of China, with its registered office at Room 305 China Resources
Building, 8 Jian Guo Men Bei Street, Dongcheng District, Beijing, its legal
representative is Xiang Songzuo.
2. Scope of Application: This Agreement comprises the body text and Exhibits.
The body text of this Agreement provides the rights that may be exercised and
the obligations that shall be performed by the parties hereto. Exhibits provides
in detail respective rights and obligations of the parties according to the
classification of services, which will be delivered by Party A upon Party B's
application for the activation of relevant service. In addition to the mandatory
execution of the body text hereof (also includes Exhibit 1, Exhibit 2 and
Exhibit 3), the parties hereto may also execute Exhibit 15 if it is necessary
under actual circumstances, and may select to execute the following Exhibits
(the serial number of which can be found on the Exhibits) corresponding to
relevant services under cooperation between the parties:
(1) SMS: Exhibit 4
(2) Voice Value-added Service: Exhibit 5
(3) WAP: Exhibit 6
(4) U-Mail: Exhibit 7
(5) BREW: Exhibit 8 (including Schedule 1 and Schedule 2)
(6) JAVA: Exhibit 9
(7) U-Map Based on SMS Platform: Exhibit 10
(8) U-Map Based on WAP Platform: Exhibit 11
(9) U-Map Based on BREW Platform: Exhibit 12
(10) U-Map Based on JAVA Platform: Exhibit 13
(11) Mobile Stock Trading based on Securities E-commerce Platform: Exhibit 14
(12) One or more Exhibits executed by both parties shall constitute an integral
part of this Agreement, having the same legal effect as the body text hereof.
Party A may activate other mobile value-added service in the future, and
will provide relevant Exhibit to this agreement that stipulates the terms of
cooperation with Party B in the newly activated service. If this Agreement has
been executed by the parties hereto, the Exhibits concerning newly activated
mobile value-added service shall automatically become part of this Agreement,
whether the service Exhibits have been executed or not. If this Agreement has
not been executed, both parties shall execute the body text of this Agreement
(including Exhibit 1, Exhibit 2 and Exhibit 3) in addition to the Exhibits
concerning newly activated mobile value-added service, and may select to execute
Exhibit 15.
3. Both parties may execute one or more Exhibit(s) according to the application
for cooperation of mobile value-added service. If the parties hereto intend to
increase mobile
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value-added service, they shall negotiate to execute relevant Exhibit set forth
in Section 2 of this Preface.
4. Both parties shall observe special provisions under the Exhibits hereto
concerning certain services. If there is any discrepancy between the provisions
of the body text of this Agreement and the Exhibits, the provisions of Exhibits
shall prevail. Unless otherwise defined or agreed in relevant Exhibit, the terms
used in this Agreement shall have the meaning defined in the body text hereof.
Terms without definition herein shall be interpreted within the context of this
Agreement and the Exhibits, and, failing such an interpretation, such terms
shall be interpreted in light of the actual application, industrial practice,
and standards promulgated by the State authority in charge of information
industry.
Chapter 1 Purpose
Whereas:
1. Party A is a telecommunication operator approved by the authority in charge
of information industry under the State Council to provide the general public
nationwide with basic telecom service and VAT telecom service, with its own
telecom infrastructure network, data service platform, service sale system, and
tremendous customer base. Party A has the full authority to execute and perform
this Agreement.
2. Party B is a content provider ("CP")/service provider (SP") that lawfully
provides mobile data contents/services, qualified to operate the cooperation
service under this Agreement, and has been granted with the following
certifications:
a. Corporate Person Business License (No. 1100002088140 (1-1))
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b. Operation License for Telecom and Information Service (No. 020184) or
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c. Operation License for Telecom VAS (No. )
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d. Such certificates of qualifications and/or acceptance of service testing
approved by Party A.
Party B has the full authority to execute and perform this Agreement, and
intends to provide mobile content service based on Party A's mobile telecom
network and data service platform.
Therefore, the parties entered into this cooperation agreement on the principle
of mutual benefit and advantage sharing, and for the purpose of win-win through
developing and flourishing mobile data services.
Chapter 2 Definitions
For the purpose of this Agreement, the following terms shall have specific
definitions. Other relevant terms that are not explicitly defined hereunder
shall be defined according to laws and regulations or the provisions or rules of
PRC laws or competent authorities, to the extent that there is no explicit
definition in such laws and regulations, such terms shall be interpreted
according to the industrial practice.
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2.1 "CP/SP"
"CP" is the abbreviation for "Content Provider". For the purpose of this
Agreement, "CP" shall only refer to the provider of information sources for the
services.
"SP" is the abbreviation for "Services Provider". For the purpose of this
Agreement, "SP" shall refer to professional service entities that provide
telecom and information services. "SP" can be a network operator or an
integrator of business provided by other network providers and provides
integrate services to its customers.
In this Agreement, "CP/SP" shall include all the professional entities
willing to cooperate with Party A, use Party A's mobile telecom network and data
service platform, and provide various mobile value-added services to Party A's
mobile telecom network subscribers.
2.2 "Subscribers", shall refer to such individuals, corporate persons or other
entities that connect with Party A's mobile telecom network and data service
platform via mobile terminals or other telecom terminals approved by Party A,
and voluntarily receive mobile value-added services provided by Party A and
Party B.
2.3 "Mobile Value-added Services", shall refer to telecom and information
services based on Party A's mobile telecom network.
2.4 "Mobile Telecom Network and Data Service Platform"
For the purpose of this Agreement, "Mobile Telecom Network" refers to
mobile telecom infrastructure facilities provided by Party A. "Data Service
Platform" refers to service platform in addition to mobile telecom network,
which is specially designed for one or more specific data services, including
but not limited to subscriber interface, CP/SP interface, business management
and application billing functions.
2.5 "Service Supporting Systems", means subscriber management, billing,
settlement, and accounting systems needed for the normal operation of services.
2.6 "Communication Channel", means physical and logical connections within
mobile communication system for the communication between subscribers.
2.7 "Port", means the interface for the communication connection between data
service platform and mobile telecom network, data service platform and
application server provided by CP/SP, including communication address and
relevant specifications.
2.8 "Data Volume", means the communication volume coming in and out of the data
service platform.
2.9 "Testing", means the testing on services provided by CP/SP, which may
include network connection test, interface conformity test, and function test,
so as to ensure the service meet with the requirements for activation.
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2.10 "Grace Period for Withdraw", means certain period that if the CP/SP
services needed to be terminated, the CP/SP shall make prior notice to
subscribers in appropriate manner within such period prior to the termination
thereof, and in which period Party B shall continue its services to subscribers
according to subscriber agreement.
2.11 "Equipment Junction Point", means the location of linkage between two
physical or logical equipments.
2.12 "Maintenance Interface", as the whole service system is composed of
different parts, and the responsibility of maintenance also belongs to different
parties, the maintenance interface is to set up the location for different
parties to take responsibility for maintenance.
2.13 "System Maintenance", means the daily maintenance and trouble shooting for
the normal operation of system.
2.14 "Gateway", means the equipment that provides the function of protocol
transition and system interconnection.
2.15 "Customize", means the subscribers acknowledge their acceptance of content
services, and voluntarily ask for such services.
2.16 "7X24", means 7 days a week 24 hours a day, without public holidays.
2.17 "Communication Fee", means such fee arising from the use of Party A's
network resources by subscribers or the CP/SP; communication fee shall be
collected by Party A from subscribers or the CP/SP.
2.18 "Information Service Fee", means such fee arising from the use of CP/SP's
content information or application services other than communication fee. In
consideration that Party A provides connection service, customer service,
billing service and fee collection service, so the information service fee shall
be divided in certain portions between Party A and Party B.
2.19 "Corporate Code", refers to "China Unicom Mobile Data Service CP/SP
Corporate Code", which is the sole corporate identification that Party A assigns
to Party B.
Chapter 3 Scope of Cooperation and Working Interface
3.1 Party A shall provide Party B with paid communication channel and its
network subscriber resources, and provide Party B with paid connection service,
customer service, billing service and fee collection service based on Party A's
customer service, billing and service supporting system.
3.2 The Corporate Code that Party A assigns to Party B is: 20012.
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3.3 Party A shall guarantee the uniqueness and steadiness of the Corporate Code
assigned to Party B; the parties acknowledge that Party A's systems shall
include but not limited to billing and settlement system, data service platform
system and customer service system, the Corporate Code that Party A assigns to
Party B and the corporate name of Party B shall have the same effect in
identification of Party B.
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3.4 Party B shall provide subscribers with such mobile value-added services
through Party A's mobile telecom network and data service platform. The type,
description, billing and settlement, and withdrawal of mobile value-added
services shall be provided the relevant Exhibits.
3.5 Party B shall obtain Party A's written form confirmation of acceptance after
testing prior to the formal launch or addition of any mobile value-added service
or the modification thereof. Upon Party B's request, Party A shall be issue such
written form confirmation document upon testing on Party B's services to the
satisfaction of Party A.
3.6 Before Party B provide by any method any mobile value-added services to the
Subscribers, Party B shall make full notice to the Subscribers about the
content, method and billing of such services, and other information that the
Subscribers need to know for their acceptance of services and/or payment of
Information Service Fee. Party B shall start to provide such services only to
the extent that there is evidence shows that it has made the notice mentioned
above and has obtained the confirmation and/or customization from Subscribers
acknowledging their acceptance of mobile value-added services. Without Party A's
prior consent in writing, Party B shall not request Subscribers to accept such
customization and collect corresponding fees from Subscribers in any way to the
effect that "subscribers' acquiescence will be deemed as acceptance" or
"customization can only be cancelled by making a phone call or sending a short
message, otherwise it shall be deemed as accepted", nor impose any unnecessary
burdens to Subscribers as a result of such issues.
3.7 During the term of this Agreement, Party A and Party B shall be responsible
for their respective maintenance interface according to the junction point of
such equipment. For details concerning the division of interface and
responsibilities of maintenance, please see Exhibit 1.
3.8 During the term of this Agreement, Party B shall upon Party A's request
provide Party A with reports on the Subscriber development, Subscriber category,
subscriber habit, business prospect forecast, and Subscriber information
necessary for the administration of such services, ensure timely upgrade of
Party A's subscriber database.
3.9 Party B agrees to strictly observe in its mobile value-added services such
management measures, service quality standards, customer service standards and
other relevant documentations that Party A has already stipulated or will
stipulate from time to time. Party A will provide Party B for observance copies
of such management measures, service quality standards and/or service standards
prior to the formal issuance thereof.
3.10 During the term of cooperation, Party B's any additional mobile value-added
service or any modification of its business scope and price shall be subject to
billing test to the satisfaction of Party A, and shall be approved by Party A in
writing.
3.11 If necessary, Party A and Party B may separately or jointly promote in
various ways mobile value-added services.
3.12 Party A and Party B may negotiate for the use of the name, trademark,
service mark or logo of Party A or any service in such services jointly provided
by the parties and in the promotion of mobile value-added services, provided
however, without Party A's request or confirmation, Party B shall not use Party
A's name, trademark, service mark or logo in the
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content sent to Subscribers through SMS or other services, to the effect that
Subscribers misunderstand such content is provided Party A or jointly provided
by Party A and Party B.
3.13 Party B shall use Party A's name, trademark, service mark, logo and other
relevant materials of Party A in its separate promotion of mobile value-added
services only to the extent that Party A so requires or such use has been
approved by Party A in writing. Party B further warrants that under no
circumstance Party B shall infringe the trademark right or other industrial
property rights of Party A.
3.14 Party B shall not promote in its content service and/or other services
competitors of Party A that have identical and/or similar business scope as
Party A.
3.15 Party B shall be solely liable for any consequences arising from mobile
value-added services in any form provided by any third party provide to
Subscribers through Party B's maintenance interface, Party A shall take no
responsibility to Subscribers or such third party for any consequences thereof.
3.16 Party B agrees to accept future modification to services and billing method
that Party A will propose in light of the development of relevant services, and
to provide Party A with service data information as necessary.
Chapter 4 Customer Service Management Interface
4.1 Both parties shall establish 7X24 hours hot-line service center and customer
service Email.
4.2 Party A's customer complaint or enquiry center (1001 customer service
hot-line) shall direct to Party B for solution of such issues that are not the
responsibility of Party A, Party B shall send initial reply to Party A or
directly response to Subscribers within one (1) hour thereafter, and shall be
responsible for the final explanation or solution of such issues.
4.3 Party B shall not require Subscribers to contact directly with Party A on
the excuse that the enquires or complaints it received are the responsibility of
Party A. If Party B believes that the enquires or complaints it received are the
responsibility of Party A, Party B's customer service personnel or customer
service system shall assist Party A to analysis and resolve such enquires or
complaints, and contact with Party A within one (1) hour after receipt thereof,
and direct the same to Party A upon Party A's confirmation.
4.4 If neither Party A or Party B can determine which Party should be
responsible for the enquiries or complaints it received, such Party shall
contact with the other Party within one (1) hour after the receipt thereof to
find out the Party to be responsible, and help the subscriber resolve the
problem as soon as possible, neither Party shall try to evade from its
responsibilities thereto.
4.5 Party B shall make detailed description of services that it intends to
provide the Subscribers in the application for the activation of services
according to the type of service under cooperation, and, to the extent that both
parties deem it necessary, such description shall be listed in relevant
Exhibits.
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4.6 Party B shall provide Party A's customer service staff with the network
interface and authorization for service enquiry and withdraw.
Chapter 5 Security of Mobile Value-added Service
5.1 Party A shall have the right to conduct necessary testing and data
statistics from time to time during the service operation period upon such
services provided by Party B, and, in light of the testing results, to require
Party B carry out rectification in accordance with Party A's mobile value-added
service management procedures.
5.2 Party A shall have the right to control and adjust the data volume and port
of the maintenance interface that belongs to Party A, and notify Party B the
result thereof.
5.3 Party B shall ensure that the services it provided have no existing or
potential material hidden defect that will be exploited by individual Subscriber
to cause damage to Party A's mobile telecom network, data service platform or
the profit of other subscribers.
5.4 Party B shall observe the State laws, regulations and policies concerning
telecommunication and Internet contents, ensure that the content of its
information services is not in violation of relevant State laws, regulations and
policies, and not send through Party A's system such illegal information listed
in the "Information Source's Guarantee Letter Concerning the Security of
Networking Information" (attached hereto as Exhibit 9).
5.5 Party B shall be responsible to solve all the disputes in connection with
the security and legality of the information it provided.
5.6 Party B's violation of Section 5.4 shall be deemed as material breach of
this Agreement. If Party A's business operation suffers any losses due to Party
B's violation of section 5.4, Party B shall compensate to Party A's losses. If
Party A suffers any negative impact due to Party B's violation of section 5.4,
Party B shall publicly acknowledge its liabilities thereto, and make public
apology to Party A.
5.7 Party B shall, at its transmission of various data or information to Party
A's communication platform, ensure that the data volume will not cause any
damage to the safe loading of network. Party A shall have the right to restrict
the transmission of any abnormal overload data or information volume that cause
negative impact on the security of Party A's network operation.
Chapter 6 Billing and Settlement
6.1 Communication Fee shall be set by Party A, and Information Service Fee shall
be set by Party B upon Party A's examination and approval. Party A shall collect
both the Communication Fee and Information Service Fee, Party B shall not
collect any fee from the Subscribers.
6.2 Party B may set the information service fee on the basis of frequency,
duration and monthly payment for subscribers to select from.
6.3 Party A shall be entitled to various communication fee arising from the use
of Party A's communication network by subscribers or Party B.
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6.4 Proceeds of information service fee shall be distributed between Party A and
Party B in certain percentage after deduction of 8% non performing debt reserve
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and other expenses acknowledged by the parties. Party A's share in the proceeds
is based on the following services it provided: mobile communication network
subscriber resources, relevant service platform, service testing and quality
supervision, unified customer service and business promotion, collection of
information service fees, and/or billing services.
6.5 The distribution percentage of information service fee, billing and
settlement of specific mobile value-added service shall be separately provided
in relevant Exhibit of such service.
6.6 Party B shall, prior to each settlement cycle, reconcile the account with
Party A on the information service fees. If the discrepancy of the billing
between Party A's billing and Party's billing is lower than (<=) 5%, the billing
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shall be based on Party A's data, if the discrepancy is higher than (>) 5%, both
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parties shall verify the reasons for such discrepancy and timely find out
reasonable solutions thereto. Any delay in Party A's payment due to
reconciliation of account shall not be deemed as a violation of Party A's
obligation in timely payment.
6.7 If the subscribers refuse to pay information service fee due to quality
reasons of Party B's service, Party B shall, in addition to pay the
communication fee arising from the use of Party A's mobile communication
network, pay Party A's share in the information service fee according to the
percentage provided in the Exhibit 1 concerning such service.
6.8 Party B shall provide Party A with the standards for service charging in the
format provided by Party A, and the final charge rate shall be subject to Party
A's confirmation. The formal implementation of any change to Party B's pricing
shall be subject to Party A's prior confirmation.
6.9 Settlement cycle:
(1) Party A and Party B shall settle account once in each month.
(2) Settlement cycle: The settlement cycle for China Unicom value-added service
shall be one (1) complete calendar month.
6.10 Settlement procedure:
(1) Subscriber use value-added service in the first month;
(2) Party B may reconcile account with Party A on the information service fee
receivables prior to the 15th day of the following month, if the discrepancy is
higher than 5%, the parties shall resolve the issue through consultations. Party
B shall submit the reconciliation and invoice affixed with its seal to the
contact person of Party A no later than the 25th day of the following month;
(3) Party B shall make payment to the bank account designed by Party A no later
than the 28th day of the third month;
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(4) If Party B fails to submit the reconciliation and invoice affixed with its
seal as required by Party A prior to the 25th day of the following month
immediately after the occurrence of respective service due to Party B's reason
or the process of reconciliation, Party A will suspend its payment for Party B's
share of revenue until the end of next quarter upon receipt of Party B's
reconciliation and invoice. (This clause shall not constitute a breach of
delayed payment under this Agreement.)
6.11 Upon Party A's requirement, Party B shall submit Party A formal invoice to
Party A.
6.12 Party A shall make full payment of the information service fee within the
specified period and in a manner agreed upon by the parties; Party A shall make
payment to the bank account set forth in Article 6.13 hereof.
6.13 Party B's bank account: see Exhibit 3.
Chapter 7 Intellectual Property and Confidentiality
7.1 Issues relating to copyrights, trade marks, patents and other intellectual
property rights shall be in compliance with relevant State laws; Party B shall,
in accordance with relevant State laws and regulations, enter into appropriate
authorization/license agreements with the intellectual property rights
owner/patentee and or/agent, to ensure that mobile value-added service provided
by Party B will not infringe on the legal interest of the owner/patentee of the
intellectual property rights, and shall upon Party A's request present such
authorization/license documents to Party A. Party A shall not be liable for any
intellectual property right disputes between Party B and any third parties.
7.2 Party B shall be responsible to solve all the disputes in connection with
the security and legality of the information it provided. Party B undertakes and
warrants that the information service that it provides will not violate the
intellectual rights or other civil rights of any third parties, Party B further
undertakes that it will be liable for compensation with respect to any and all
lawsuit, claims, administrative punishment, damages and losses arising from the
violation of the undertakings and warrants above mentioned.
7.3 Party B warrants that, in the mobile value-added services, in particular the
U-map services, Party B shall observe the State regulations concerning the
protection of fundamental rights of citizens (including without limitation the
right of privacy) in connection with mobile value-added services. Party B shall,
in its promotion and supply of U-map location services, fully notify the
subscribers of the nature, application scope and relevant laws and regulations
in connection with such services. In addition, Party B shall activate U-map
location service to a subscriber only to the extent that the subscriber has
fully and completely acknowledged and consented to Party B's service (if
necessary, Party B shall be able to furnish written form certificate evidencing
that the subscriber has fully and completely acknowledged and consented to such
service); and Party B shall not use the location information disclosed by the
subscriber in connection with the U-map services (whether single, multiple or
integrated) for purposes other than that the subscriber has originally
customized. With respect to U-map services supplied to special industries, both
parties shall strictly observe relevant State regulations, whether such
regulations have been promulgated or implemented prior to/at the execution of
this Agreement or relevant Exhibits.
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7.4 Party A may design, produce and register trademark, service mark or logo for
its mobile value-added services, and use such trademark, service mark or logo
for marketing promotion. If both parties are jointly engaged in such marketing
promotions (hereinafter "Joint Promotion"), both parties shall agree on details
of the Joint Promotion in relevant service Exhibits, or enter into separate
cooperation agreements concerning the Joint Promotion according to actual needs.
The parties hereby agree that, the purpose of Joint Promotion is to better
operate such mobile value-added service, the Joint Promotion or any activities
related thereto shall not infringe upon the trademark rights, intellectual
property rights or industrial property rights either of Party A or Party B
and/or any third parties. If any party hereto infringes upon the trademark
rights, intellectual property rights or industrial property rights of any other
third party through its unilateral acts, the infringing party shall be liable
for all the consequences of infringement, compensate the economic loss that the
non-infringing party may suffer, and eliminate negative social impact upon the
non-infringing party that may arise therefrom.
7.5 Party A and Party B shall keep confidential of this cooperation and the
details of this Agreement. Neither Party shall disclose the details of this
Agreement and other relevant content to any third parties without prior written
consent of the other Party.
7.6 During the term of this Agreement and five years thereafter, neither Party
shall disclose, reveal or provide any business secret (including financial
secret), technical secret, business know-how and/or other confidential
information and materials (whether such information or materials are in written,
oral or other forms) that such Party obtained from the other Party.
7.7 During the term of this Agreement and five years thereafter, both parties
shall keep confidential of business secret (including financial secret),
technical secret, business know-how and/or other confidential information and
materials (whether such information or materials are in written, oral or other
forms) that have been jointly created by the parties in the performance of this
Agreement, without the other Party's consent, neither Party shall disclose,
reveal or provide the same to any third parties.
Chapter 8 Liability for Breach and Dispute Resolution
8.1 Both parties shall strictly observe the provisions of this Agreement, if any
Party suffers damage or the cooperation hereunder is unable to proceed due to
the failure of the other Party to perform its obligations, warrants or
undertakings hereunder, or the violation of its representations hereunder, then
the other Party shall constitute a breach of this Agreement.
8.2 If any Party's breach causes negative social impact or economic losses to
the other Party, the Party not in breach shall have the right to hold the
breaching Party responsible for such breach, ask the breaching Party to
eliminate such impact and make corresponding compensations, and shall have the
right to terminate this Agreement.
8.3 Any disputes arising from or in connection with this Agreement shall be
settled through amicable consultations between the parties in the spirit of
cooperation.
8.4 The parties agree, if any dispute arising out of or relating to this
Agreement can not be settled through consultations, such dispute shall be
submitted to Beijing Arbitration Commission for arbitration in accordance with
the arbitration rules of the Commission. The
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arbitration award is final and binding on both parties. The arbitration shall be
conducted in Chinese.
8.5 The execution, performance and interpretation of this Agreement shall be
governed by the laws and regulations of the People's Republic of China.
Chapter 9 Force Majeure
9.1 "Force Majeure" means all the events that can not be controlled or foreseen,
nor can be avoided by the parties hereto, which prevent any Party to perform
part or all of this Agreement. These events shall only include: earthquake,
landslide, collapse, flood, typhoon, abnormal weather, and fire, explosion,
accident, war, riot, insurgence, mutiny, social upheaval or violence, terrorism
event, sabotage, or any other similar or dissimilar incidents.
9.2 In the event that any Party hereto is affected by Force Majeure event and
thus unable to perform its obligations hereunder, such Party shall not be held
responsible for the other Party's losses arising therefrom.
9.3 The Party affected by such Force Majeure event shall promptly inform the
other Party of its occurrence in writing and within 15 days thereafter send a
valid certificate issued by the relevant authority explaining the detail of such
event and the reason for the failure or delay to perform all or any part of this
Agreement. Both parties shall negotiate whether continue to perform or terminate
this Agreement according to the degree of impact on the performance hereof
caused by such event.
Chapter 10 Amendment or Termination
10.1 During the cooperation between the parties, relevant business management
rules and relevant customer management rules stipulated by Party A for mobile
value-added services shall be incorporated as supplemental Exhibits hereto. If
there is any conflict between the provisions of this Agreement and the
management rules aforesaid, the management rules shall prevail. Both parties
agree to negotiate on the conflicting provisions, and execute supplement
agreement on the amendment of this Agreement.
10.2 If any Party hereto intends to amend or revise this Agreement, it shall
send written notice to the other Party at least 15 days prior thereto. The
parties shall negotiate on the written form amendment or modification of this
Agreement.
10.3 Unless expressly provided hereunder, during the performance of this
Agreement, neither Party shall suspend, terminate or cancel this Agreement
without written consent of the other Party.
10.4 In the event that any Party hereto is unable to continue its operation or
the mobile value-added service cooperation hereunder due to the other Party's
failure in performing its obligations and responsibilities hereunder, or
material violation of the provisions of this Agreement, it shall be deemed as a
unilateral termination of this Agreement by the breaching Party, and the
non-breaching Party shall have the right to claim for compensation from the
breaching Party for the economic losses caused by such breach, and terminate
this Agreement.
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10.5 Party B has to terminate this Agreement due to technical or economic
reasons, Party B shall make at least 1 month prior notice to Party A, and
provide 1-3 months grace period to continue its services to the subscribers and
make at least 90 days announcement about the termination of services on its
website (Web/WAP) or other channels to the subscribers.
10.6 If Party A and Party B have made any previous agreement concerning the
mobile value-added service hereunder, such agreement shall be automatically
terminated upon this Agreement becomes effective, and each the parties hereto
shall assume its respective loss arising therefrom.
Chapter 11 Withdraw Mechanism
11.1 If Party B in the process of applying for mobile value-added services fails
the testing within three months period (commencing from Party A's notification
to Party B of such testing), the cooperation agreement between Party A and Party
B concerning mobile value-added services shall be automatically terminated.
11.2 The parties hereto agree to implement the withdraw mechanism under certain
circumstances, and to determine the termination of one or more service
cooperation based upon the examination of Party B's information fee revenue,
subscriber's complaint and service testing. Party A and Party B may apply
specific withdraw mechanism according to different types of services, and
stipulate the same in relevant Exhibits.
11.3 Party A shall reserve the right as whether to apply withdraw mechanism to
terminate the cooperation with Party B in one or more services. According to
actual conditions, Party A may, within one month prior to the expiration of this
Agreement or within one month after Party B has satisfied the conditions for
applying the withdraw mechanism, decide whether to conduct a second testing on
Party B's services and determine whether to apply withdraw mechanism.
11.4 If Party B is in a special industry, Party A shall have the right to
determine whether to apply withdraw mechanism provided under this Agreement and
relevant Exhibits.
11.5 The termination of one or more services under cooperation according to this
Chapter 11 or relevant Exhibits shall not impact on other services currently
engaged by Party B, nor such services that Party B has applied for but pending
activation.
11.6 If Party B is in material breach of this Agreement or material violation of
the service standards concerning service quality and customer service that have
been stipulated by Party A, Party A shall, in addition to applying the withdraw
mechanism for terminating the cooperation with Party B in the respective
service, reserve the right to terminate other service cooperation for which
Party B is not in breach.
Chapter 12 Contact Personnel
12.1 For the purpose of cooperation, Party A and Party B may appoint its
respective contact personnel according to different types of service. Detailed
information about contact personnel, address and method for communication will
be provided under relevant Exhibits.
Chapter 13 Effectiveness and Miscellaneous
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13.1 This Agreement shall become effective as of the date it is signed by the
authorized representative of the parties and affixed with the official seal of
the parties, and the billing and settlement shall be commenced at the date of
formal activation of services hereunder. This Agreement shall expire on March
31, 2005, unless terminated according to the terms hereof. Prior to the
expiration hereof, Party A may examine Party B's capacity and qualification in
performing this Agreement, and, to the extent that Party A believes that Party B
has the capability to perform this Agreement and that Party B is qualified for
the continued performance hereof, this Agreement shall be automatically renewed,
and each renewed term hereof shall be one (1) year.
13.2 Upon execution of supplemental Exhibit signed by Party A on each page for
confirmation, and signed by Party B's authorized representative and affixed with
official seal, such Exhibit shall become effective and constitutes an integral
part of this Agreement. Any modification to the information about Party B's bank
account, contact personnel and customer service set forth in Exhibit 3 shall
become effective after being signed by such authorized representative. The power
of attorney and signature stamp of such authorized representative is attached
hereto as Exhibit 15, which will be provided by Party A and executed
simultaneously with this Agreement.
13.3 This Agreement and Exhibits hereto are in two originals, each of Party A
and Party B holds one thereof, which are of the equal legal effect.
16
<PAGE>
Exhibit 1: Maintenance Sections and Responsibilities of Both Parties
A. Diagram of the Maintenance Sections
[DIAGRAM OF MAINTENANCE SECTIONS]
B. Party A's Responsibilities
(1) Party A shall contribute software and hardware required by its mobile
communication network and data service platform.
(2) Party A shall cooperate with Party B to connect Party B's server to Party
A's gateway or server.
(3) Party A shall provide Party B with the mobile value-added service technical
protocol and interface specifications.
(4) Party A shall maintain the normal operation of the network communication
that is indicated in the diagram above to be responsible by Party A, and assume
responsibility for network problems not caused by Party B. Party A has the right
to restrict on the transmission of any excessive data or information that
damaging the safety of Party A's network operation.
(5) Party A shall provide statistics for the information transmission volume
through Party A's telecommunications channel, and ensure the reliability and
timeliness of such statistics data, and assume responsibilities for any damages
arising therefrom.
(6) Party A shall notify Party B in advance for any transmission interruption
resulting from testing, maintenance or other foreseeable reasons, including the
reason, time and period for such transmission interruption.
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<PAGE>
(7) Party A shall immediately notify Party B within reasonable time of any
transmission interruption caused by unforeseeable reasons such as problems with
network switch or other network problems.
C. Party B's Responsibilities
(1) Party B shall be responsible for the construction and maintenance of its own
"application service", including all hardware equipment, system testing,
activation, maintenance, daily service management, market promotion and expenses
relating to this service.
(2) Party B shall be responsible for the connection between Party B's system and
Party A's gateways and servers, and the expenses for the application, lease and
maintenance of relevant telecommunication lines.
(3) Party B shall be responsible for the editing, review and production of the
information that it provides, and ensure the timeliness, truthfulness,
reliability and legality of such information, and assume related liabilities
thereto.
(4) Party B shall ensure the testing and activation of its system would not
affect the normal operation of Party A's network and assume related liabilities
for any damages to Party A's network system arising therefrom.
(5) Party B shall make prior notice to Party A in writing for the commissioning,
activation and modification of its system, and notify subscribers of the same
through effective means such as email, advertisement or short messages upon
Party A's confirmation thereof, and shall reduce the impact on subscribers to
the minimum degree.
(6) Party B shall observe Party A's emergence adjustment to the volume of short
messages so as to ensure the normal operation of SMS services.
(7) Party B undertakes not to create overload transmission volume that would
harm the network safety when transmitting messages to Party A's SMS service
platform.
(8) Party B shall provide 7 days a week and 24 hours a day system maintenance.
18
<PAGE>
Exhibit 2: Information Source Networking Information Safety and Security
Liability Statement
The information source unit (CP/SP in the Agreement) that connects with the
mobile communication network, UNINET or relevant service platform of China
Unicom (including but not limited to SMS gateway, WAP gateway, JAVA/BREW
download server, GPRS server) shall undertake to comply with the following
regulations:
I. The information source unit shall comply with applicable state laws,
regulations and directives, and to strictly implement regulations on
information security management.
II. The information source unit shall not use mobile communication
network, UNINET or relevant service platform of China Unicom to
conduct criminal activities which may jeopardize national safety or
cause disclosure of national secrets; not to use mobile communication
network, UNINET or relevant service platform of China Unicom to
produce, browse, copy, or transmit the information which breaches the
Constitution or the laws, prevent social security, disrupt national
unity or national solidarity, or is erotic or violent, nor to use
mobile communication network, UNINET or relevant service platform of
China Unicom to publish any information of the following nature:
1. that opposes the basic principles set for in the Constitution;
2. that jeopardizes national security, divulges state secrets, subverts the
government or undermines national unity;
3. that is detrimental to the national image and interests;
4. that instigates ethnic hatred or discrimination or that damages inter-racial
unity;
5. that undermines state policy on religion, or that advocates cults or feudal
superstitions;
6. that spreads rumors, disrupts the social order or undermines social
stability;
7. that spreads obscenity or pornography, or that advocates gambling, violence,
murder, fear, or that incites criminal activities;
8. that insults or slanders other people, or that infringes upon their lawful
rights and interests; or
9. other contents prohibited by laws or administrative regulations.
Upon discovering the information being transmitted, the information source unit
shall take prompt measures to stop such transmission and report to relevant
authorities.
III. The information source unit shall comply with state regulations on
intellectual property in respect of provision of information.
IV. The information source unit shall guarantee the safety and stability of the
service content during the network testing, trial operation and upon
activation of the service,
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<PAGE>
that will not cause any damage to the mobile communication network, UNINET
or relevant service platform of China Unicom.
V. The information source unit shall put in place effective information
security controls and technology protection measures and accept
administration, oversight and examination of relevant authorities.
VI. In the event of any breach of such regulations, Party A shall take measures
to close the channel accessible to such information source and hold the
responsible unit liable, and terminate cooperation with such unit. The
liability statement shall be kept by Party A.
Responsible unit: Hurray! Solutions Ltd.
Responsible person:
(signature, seal)
Date: March 29, 2004
20
<PAGE>
Exhibit 3: List of Information Concerning Party B's Mobile Value-added Service
[List of Information Concerning Party B's Mobile Value-added Service]
-------------------------------------------------------------------------------------------------
Full Name
of the
Company Hurray! Solutions Ltd.
------------------------------------------------------------------------------
Corporate Abbreviation HURRAY! SOLUTIONS LTD.
Code 20012 in English
------------------------------------------------------------------------------
Company
Information Telecom & Term of
Information Telecom & From September 9, 2002 until
Service Information September 8, 2007
License No. 020184 Service
License
------------------------------------------------------------------------------
Telecom Term of
Value-added Telecom
Service Value-added
License No. Service From [ ] until [ ]
License
Number
------------------------------------------------------------------------------
Business Term of
License No. 1100002088140 (1-1) Business From September 21, 1999 until
License September 20, 2019
-------------------------------------------------------------------------------------------------
Name Yang Xiaolai Tel. 010-65188989
------------------------------------------------------------------------------
Contact Info Mobile 13301338868 Fax 010-65191531
------------------------------------------------------------------------------
Email xlyang@hurray.com.cn
-------------------------------------------------------------------------------------------------
Mobile 24-hour
Value-added customer 8008106200
Service Customer hotline
Service Info ------------------------------------------------------------------------------
Person in
Charge Wang Qiruo
------------------------------------------------------------------------------
Customer
Service and
Introduction www.hurray.com.cn
Website
-------------------------------------------------------------------------------------------------
Information Full Name
about Party B's of the Hurray! Solutions Ltd.
Bank Account Recipient
------------------------------------------------------------------------------
Deposit
Bank of Huaxia Bank Shouti Branch
Recipient
------------------------------------------------------------------------------
Recipient's
Bank Account 742-819136012
-------------------------------------------------------------------------------------------------
21
<PAGE>
Execution Page (No Body Text)
Party A: China Unicom Co., Ltd.
Legal Representative or Authorized Representative: Wang Yingpei
Date:
Party B: Hurray! Solutions Ltd.
Legal Representative or Authorized Representative: Li Jieqiang
Date: March 29, 2003
22
<PAGE>
Exhibit 6
WAP Services
Serial No.: CUVAS-A2004-052/W
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<PAGE>
Exhibit 6: WAP Services
1. Mode of Cooperation
U-Info is a mobile value-added service Party A provides to its subscribers.
Being a "Mobile Network Provider", Party A provides Party B with fair and high
quality WAP service platform and network, subscriber resources, maintain WAP
platform and manage relevant WAP content; Party B shall connect to such platform
and provide WAP content, and both parties shall jointly provide nation wide WAP
services to subscribers.
2. Billing and Revenue Participation
(1) Billing:
Specifications:
E: Earning of information service fee receivables
B: Bad account reserve ratio, B=8%;
S: Party B's share in information service fee receivables
A: Final participation ratio, i.e., the final percentage of earnings
received by Party B in the total amount of information service fee
receivables;
Accordingly, the method for calculation of final participation ratio "A"
shall be: A=(1-B) * S
In the earning of information service fee receivables "E", Party B shall
take E*A.
Party A shall calculate and sum up the earnings of different types of
services that belong to Party B according to the respective ratio agreed by the
parties, and, upon deduction (or addition) of other expenses that should be paid
(or obtained) by Party B, the earning that goes to Party B will be finally
determined.
If during certain billing period special service fees (including free of
charge and deduction), then the special service fee shall be applied to the
calculation of information service fee for such period.
(2) Participation Ratio
Party A and Party B shall upon consultations determine the following
participation ratio in connection with information service fee receivables (Bad
account reserve ratio B=8%);
The ratio of Party B's share in the information service fee receivables
shall be 80% upon formal commercialization of services. If Party A sets forth
any floating participation ratio, Party A shall make written notice to Party B
and execute supplemental agreement.
3. Billing of Monthly Fees
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(1) The billing cycle for monthly information services fee shall be one calendar
month.
(2) Subscribers who have customized monthly service commencing at 0:00:00 of the
1st day of a calendar month and ending at 23:59:59 of the 14th day of the
current month shall be collected with whole monthly information fee of such
service; Subscribers who have customized monthly service commencing at 0:00:00
of the 15th day of a calendar month and ending at 23:59:59 of the last day of
the current month shall be collected with half of the monthly information fee of
such service.
(3) After ordering of such service, information fee already collected in the
current month shall not be refundable, and subscribers may continue to use such
service in the billing cycle of the current month; no information fee shall be
collected from such subscribers from the beginning of the next billing cycle.
4. Withdraw Mechanism
(1) Basic principles
A. Withdraw mechanism based upon service testing
If Party B in the process of applying for mobile WAP service (for the
purpose of this Agreement, refers to U-info service) fails the testing within
three months period (commencing from Party A's notification to Party B of such
testing), the cooperation agreement between Party A and Party B concerning WAP
service shall be automatically terminated.
B. Withdraw mechanism based upon service development
Services provided by CP/SP shall be ranked according to the China Unicom
U-Info Service Appraisal and Management Rules, if Party B continuously ranks
behind in certain service, Party A has the right to apply withdraw mechanism
thereto; if Party B continuously ranks behind in several services or has records
of low quality service, breach or violation of regulations, Party A shall have
the right to apply withdraw mechanism to Party B in connection with U-info
services.
(2) Withdraw mechanism
A. If any service of Party B ranks in the last 10% in three consecutive rankings
of such service, Party A shall have the right to terminate the service.
B. In the promotion of services, Party B adopts unjustified method to interfere
the normal operation of other CP, and brings negative impact upon Party A'
normal cooperation with CP.
C. There is high percentage of complaint from subscribers, causing negative
market impact.
D. Party B is in material violation of this Agreement or relevant laws and
regulations.
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E. In the circumstances above mentioned, Party A shall apply the following
measures within withdraw mechanism according to Party B's acts:
(i) Circulate notice of criticism: Party B's violation shall be notified to
each local branch of Party A; Party A and its branches will suspend handling of
Party B's application for new services;
(ii) Collect liquidated damages: In the event of violation, Party A shall
have the right to claim for liquidated damages from Party B according to the
provisions hereunder, so as to compensate such loss suffered by Party A.
(iii) Temporary suspension of settlement: Settlement with Party B shall be
suspended for 1-3 month period, previously settled amount shall be deducted as
the liquidated damages. Both parties shall thereafter negotiate for solutions.
(iv) Rectification with specified term: Party B shall rectify its network,
customer service and business plan within the specified term according to Party
A's request, during which period Party A shall suspend Party B's service.
(v) Party A shall restrict Party B from sending data or information, or
eventually shut down Party B's service channel.
(vi) Public apology on media: In the event that Party A suffers negative
social impact due to Party B's breach/violation, Party B shall make public
apology on two or more public media, including one national media and one
provincial media, and shall apologize personally to those subscribers involved.
(vii) Terminate cooperation: Party A shall terminate the cooperation with
Party B on the following reasons: (a) if several services of Party B rank in the
last 10% for consecutive period, Party A shall have the right to propose to
terminate this Agreement; and (b) if Party B is in material breach or violation
of laws and regulations, Party A shall have the right to terminate the
cooperation with Party B, and Party A shall in principle not to accept Party B's
service application within one year thereafter.
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Confirmation Page (No body text on this page)
This page is the confirmation page for signature and seal of Exhibit 6 of
---
the China Unicom Mobile Value-added Service Cooperation Agreement (Serial No.
CUVAS-A2004-052).
---------------
Party B: Hurray! Solutions Ltd. (Seal)
Legal representative or authorized representative: (Signature)
Date: March 29, 2004
27