Business Cooperation Agreement on Monternet Short-Messaging Services - Beijing Mobile Telecommunications Co. Ltd. and Beijing AirInBox Information Technologies Co. Ltd.
BUSINESS COOPERATION AGREEMENT
ON
MONTERNET SHORT-MESSAGING SERVICES
Agreement code:
Execution date:
PARTY A: BEIJING MOBILE TELECOMMUNICATIONS CO., LTD
Legal representative: Yuejia Sha
Mail address: No. 58, Dong Zhong Street, Dongcheng District, Beijing,
100027, China
Tel: 65546699
Fax: 65541330
Opening bank:
Bank account:
PARTY B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Legal representative: Yunfan Zhou
Mail address: Yuetan Tower A-809, No. 2, North Yuetan Street, Xicheng
District, Beijing, 100047, China
Tel: 68081818
Fax: 68083118
Opening bank: Xinjiekou Branch, Dewai office of ICBC
Bank account: 0200001309006796982
BEIJING MOBILE TELECOMMUNICATIONS CO., LTD (hereinafter referred to as
"Party A"), as the mobile communication operator and mobile data service
operator, provides open and premium-based communication channels for the
application providers. BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
(hereinafter referred to as "Party B"), as a company engaged in the value-added
communication services approved by the competent telecom authorities, provides
value-added short-message services to MP users of China Mobile. To provide
better application services to users,
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the parties agree as follows as to the joint development of Monternet
short-message services upon adequate consultation in the principle of equality,
mutual benefit and concerted growth.
ARTICLE 1 BASIC DESCRIPTION OF COOPERATION
1. Party B shall be fully compliant with the requirement of Internet
Content/Application Service Management Methods of the State Council Order
(No.292), be granted with License for the Value-added Telecommunications
Services (business scope defined as Wireless Network Value-added
Telecommunications Services) and License for Telecommunications and
Information Services (business scope defined as Internet Information
Services), be able to provide comprehensive after service system, and
have legal and reliable information/message sources and other legal
business operation conditions.
2. In case Party B is the local partner of Party A, Party B shall provide
Monternet short-message services only to China Mobile MP users in Beijing
region via the short-message channels of Party A.
3. Party B shall conduct its short-message value-added services in compliance
with the Monternet SP Cooperation Regulations (including but not limited to
the Short-Message Value-added Services SP Cooperation Administration
Guideline promulgated by Beijing Mobile and China Mobile Telecommunications
Group Corp.).
4. Party A shall conduct regular evaluation of Party B based on the Monternet
SP Cooperation Regulations, and is entitled to terminate the cooperation
with Party B in case that Party B fails to pass such examination.
ARTICLE 2 RIGHTS AND OBLIGATIONS
1. Party A's rights and obligations
1.1 Party A allows Party B to provide short-message value-added services to
users via the short-message gateway of Party A. Party A is entitled to
adjust the short-message traffic volume according to the capacity of the
short-message center. If such adjustment shall impact on the business of
Party B, Party A shall promptly notify Party B thereof.
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1.2 Party A shall provide comprehensive GSM mobile communication system, and
ensure smooth and stable information transmission. Upon the notification of
Party B of any communication failure, Party A shall promptly settle the
failure to avoid impairment of Party B's business.
1.3 Party A shall make available the technical protocol, standard and interface
standard relevant to the short-message gateway platform to Party B. Party A
shall provide the technical documentation for mutual communication, and
promptly address communication problems of Party B.
1.4 Party A shall supply the hardware/software system for the short-message
platform, and bear the relevant operation cost.
1.5 Party A shall renovate its own billing system, including the
commission-based collection system of the banks, and bear the cost of
necessary hardware and software.
1.6 Party A shall undertake the billing and payment collection on behalf of
Party B. Party A is entitled to check the business of Party B to ensure the
accurate billing data. Party A shall issue explicit information premium
invoice to users and the information premium bill at the request of the
user.
1.7 When applicable, Party A shall provide the relevant data of Monternet
invalid users (number canceling, service discontinuance and overdue
information premium) to Party B to facilitate Party B to dispose of such
invalid Monternet users promptly.
1.8 Party A shall be responsible for the handling of customer enquiries and
complaints resulted from telecommunications network failures.
2. Party B's rights and obligations
2.1 Party B shall undertake the building and maintenance of its own software
and hardware, including but not limited to all hardware, system
commissioning, cutover, system maintenance, routine business management and
marketing efforts/cost of the subject project.
2.2 Party B shall provide the agreed contents and application services to China
Mobile users. Party B shall ensure the legal, prompt and reliable
information sources. Party B shall guarantee that its information and
content are compliant with applicable policies, laws and regulations, and
be liable for any consequence arising out of illegal contents.
2.3 Party B's Website with customization interface for users is:
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http://www.kongzhong.com, inform users of the contents and service provided
by Party B. The customization interface of Party B shall provide basic
service functions like authentication, adding, deleting, modifying and
searching, and allow users to inquire about the information premium list.
Party B shall provide explicit premium standards to users with the premium
standard changing frequency not less than 6 months. That is to say, the
premium standard of a service (new service or changed service) shall not be
changed within the first 6 months. Party B shall keep complete use records
of all users of at least 3 months, keep the user ordering data permanently,
and provide the interface to Party A to inquire about the service records.
2.4 Party B shall take necessary measures to effectively control invalid
Monternet users. To ensure normal operation of Monternet business, Party B
shall not send any information to invalid Monternet users it get to know.
2.5 In case the system failure of Party B impairs the communication system of
Party A, Party B shall submit to the adjustment arrangement of Party A to
the short-message traffic volume to ensure normal and stable short-message
service, and settle any user complaint thus incurred at its own cost.
2.6 Party B shall not send ads and other irrelevant information to users via
the communication channels of Party A during the term of this agreement.
Party B shall strengthen the check of the short-message contents, restrict
the group-calling numbers (at most 2 each time) and sending times in each
time unit (not over 100 each hour). Party B shall take technical measures
against illegal attack, unauthorized use of passwords, unauthorized
convoking of web pages and other illegal acts impairing Monternet business
information security.
2.7 Party B shall be responsible for the handling of customer enquiries as to
bills, of customer enquiries and complaints with regards to the contents
and/or application services provided by Party B, and such handling should
be finished within a stated time frame with a fair and honest solution.
2.8 During the term of this Agreement, Party B is obligated to furnish the
monthly report within the first 5 days each month as requested by Party A
to Party A, stating the user development, user categories, user habits,
business forecast and others, the monthly report format as set out in
Exhibit 1 hereto. Party A shall keep the confidentiality of such data
according to Article 8 hereto.
2.9 Party B is obligated to market and promote Monternet services.
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ARTICLE 3 DISTRIBUTION OF RIGHTS AND OBLIGATIONS
1 Party B shall address the user disputes arising out of contents, services
or transmission failure between the parties. Party A shall address the user
disputes arising out of the short-message gateway and center, with the
maintenance labor-division as follows: (Graph omitted)
2 The contents or applications provided by Party B shall be within the
business scope mutually agreed, otherwise Party A is entitled to terminate
this Agreement with Party B liable to the default penalty. Party A is
entitled to supervise the business development of Party B, Party B shall
assist the efforts of Party A in this regard in an effort to avoid negative
impact on normal business of Party A by the business of Party B. In case
the business development of Party B negatively impairs the normal business
of Party A due to the violation against this Agreement, Party A is entitled
to terminate this Agreement with Party B liable for the default liability.
3 Party B shall apply to Party A in writing or through SP Management Website,
with the official request chopped with company seal prior to adding or
withdrawing any services hereunder or changing the price of some services.
In case of approving the change of certain service prices, Party A shall
notify Party B of such approval in writing or through SP Management
Website. In case of Party A's written consent of adding certain services by
Party B, Party B shall test the added services and submit to Party A test
reports. Party B shall not provide such new services to users prior to
Party A's acceptance of the sophistication of such services. Details refer
to Exhibit 1 hereto.
ARTICLE 4 REVENUES OF THE PARTIES
1 Party A shall charge mobile phones users communication premium generated
while using short-message services according to information charges
standard. In principle, Party B shall determine the information service
premium for the services hereunder used by the MP users subject to the
approval of China Mobile Corporation. Party A suggests the upper threshold
of the information service premium (maximum RMB 2 yuan/message, RMB 30
yuan/month for monthly services). Party B shall submit the premium
standards to the price administration
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authorities, and promptly notify Party A accordingly.
2 Party A shall provide the billing service and premium collection service to
Party B. All information service premium of Beijing region users of each
billing month shall be the due information service premium in Beijing.
Party A shall pay 85% of the due information service premium of Beijing to
Party B, and be liable to the risk of overdue payment of local users. In
case Party B is the full-network partner of Party A, i.e. Party B provide
Monternet short-message value-added services to nationwide China Mobile
users in China, then all information service premium of non-Beijing users
recorded in each billing month shall be the due information service premium
of non-Beijing regions, which shall be collected by local subsidiaries of
China Mobile. Relevant local subsidiaries of China Mobile will credit 85%
local due information service premium to Party A, which shall then be
transferred to Party B by Party A in full.
3 In case the monthly short-message entries (downlink) sent by Party B to
nationwide users as recorded in the gateway billing data exceeds those sent
by users to Party B (uplink), thus resulting in ill-balanced communication
premium of Party B (the balance of downlink messages and uplink messages is
the ill-balance communication), Party A shall charge RMB 0.05-0.10
yuan/message for the ill-balance communication as follows:
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Ill-balanced downlink
SM traffic Premium standard Calculation methods
(messages/month) (RMB yuan/message) X=(MT-MO) message/month
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Below 100,000 0.08 X*0.08, at least RMB 2000 yuan
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100,000-300,000 0.07 (X-100,000)*0.07+100,000*0.08
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300,000-1 million 0.06 (X-300,000)*0.06+200,000*0.07+100,000*0.08
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Over 1 million 0.05 (X-1.million)*0.05+700,000*0.06+200,000*0.07+100,000*0.08
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ARTICLE 5 SETTLEMENT MODEL
1 Settlement point: determined by Party A.
2 Settlement methods
2.1 Party B shall link with the short-message center of Party A via the
short-message
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gateway of Party A, which shall record the billing data as final. The
monthly settlement from the 15th day to the 20th day each month shall cover
the premium of the last month from the 1st day to the last day. After the
normal billing accounting period, Party A shall calculate the current-month
information service premium of Party B and the ill-balance communication
premium payable to Party A, which shall serve as the basis of settlement
between the parties.
2.2 The parties shall make the account settlement of the current-month
information service premium according to the records of the billing system
of Party A, Party A shall pay the balance of 85% information service
premium minus the ill-balance communication against the formal service
invoices. In case the balance is above zero, Party A shall pay the balance
to Party B. In case the balance is below zero, Party B shall pay the
balance to Party A against the invoices furnished by Party A. The payment
collecting party shall mail the invoice within three (3) days after the
receipt of the payment (by local post stamp).
2.3 The parties shall make the settlement and payment strictly according to the
regulations of settlement model and schedule. In case either party delays
the due payment beyond the stipulated time (the 20th day each month), the
party shall pay to the other party the delay penalty at the daily rate of
1% of the delayed payment. In case either party fails to make payment
overdue for over 2 months after the notice of the other party, the
conforming party is entitled to lodge an action against the default party
with the legal liability borne by the default party.
ARTICLE 6 MARKETING AND PROMOTION
1 The parties shall engage in joint marketing and promotion with their
respective resources in the principle of mutual benefit.
2 Party A in general shall market/promote Monternet and the major categories
of application services instead of the cooperative Monternet services
separately.
3 Party B shall market/promote its brand and relevant Monternet services as
well as the brand of Monternet. Party B shall strictly abide by the
brand/marks regulations of Party A in use of Monternet LOGO without
unauthorized distortion or color change with prior approval of Party A
prior to any use thereof.
4 Party B shall not use Monternet brand for any purpose other than the
marketing/promotion of Monternet services, otherwise Party A is entitled to
require Party B to stop the use thereof and bear any liability thus
incurred, or even claim the legal liability for severe violations.
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5 Party B must obviously mark the customer service phone or customer service
Website, compliant email on any promotional material and media ads. of
Monternet business. Party B shall not adopt the similar products of China
Mobile rivals as the promotional gifts of Monternet business.
ARTICLE 7 CUSTOMER SERVICES
1 The Monternet short messages received by users must be those upon their
request or customization. Party B shall ensure the wholesomeness and
legality of the short messages sent to users, Party A is entitled to
supervise the short message contents of Party B, and strengthen the
management thereof, specific regulations as provided for in Exhibit 2.
2 Party B shall fully inform users of the basic elements of Monternet
services prior to any ordering, including price, sending frequency/times,
use model, major contents and etc.
3 Party A's customer service center 1860 and the major outlets will handle
the customer inquiries and complaints about Monternet services, and
transfer any customer problem about information content and services to the
customer service center of Party B.
4 Party B shall maintain 7x24 hotlines, both a direct-dialing fixed line and
a mobile one, while the fixed line can't be an extension line and the
mobile phone can't be switched off or to be diverted. Numbers of such
hotlines should be given to customers through Web pages or marketing
materials.
5 Party B shall assign regular staff to handle user complaints, and respond
to customer complaint within one (1) day thereafter.
6 To ensure the users' understanding of Party B's services, Party B must
process the service recommendations, customer service instructions and the
downlink information of user passwords free of charge, and send the service
prompt information (e.g. price, customization confirmation, customer
service hotline, subscription cancellation and etc.) free of information
service premium.
7 The subscription for customized short-message services shall take effect 72
hours after the submission of the subscription. Charges for services within
72 hours could be done on per message basis, no monthly-payment service
fees should be charged unless customers re-subscribe for monthly-payment
short-message services.
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8 For monthly-payment short-message services, Party B may charge the monthly
premium at the user for the use of the service between half a month to a
month, and charge no premium at the user for the use of the service below
half a month.
9 For users in request of customized services via Internet, Party B shall
obviously mark the basic business information on the Web page prior to the
user confirmation of the customization. After successful customization,
Party B shall send the prompt information to users, stating "thanks to
you", "successful confirmation of the customization", "service information
premium standard", "sending frequency/times", "order withdrawal method",
"customer service phone/Website".
10 For users of customized services via mobile phones, Party B shall return
the prompt information via short message to the users (including premium
users and third-party users) immediately, stating "thanks to you",
"successful confirmation of the customization", "service information
premium standard", "sending frequency/times", "order withdrawal method",
"customer service phone", "Website" (optional).
11 To the initial ordering intentions acquired in the non-online marketing
(e.g. filling out forms), Party B shall send the second confirmation
message (basic service information), and confirm the actual order after
user confirmation of the password.
ARTICLE 8 TERMINATION OF CORPORATION
1. Party B shall not send any information to invalid Monternet users. In
case Party B knowingly send information to invalid Monternet users,
Party A is entitled to require Party B to indemnify the economic loss
incurred from user overdue payment, and is entitled to terminate this
Agreement and the cooperation hereunder.
2. Party B is obligated to ensure the compliance of its information
content with Telecom Regulations of PRC, Internet Information Service
Regulations and other applicable laws, regulations and policies, not
distribute any illegal and obscene information undermining the
national security and interest, Party B shall ensure that its
information content shall not impair the corporate image of China
Mobile. Without written consent of Party A, Party B shall not send ads
and other irrelevant information to mobile users via the short-message
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ports furnished by Party A. Otherwise, Party B shall indemnify Party A
for any loss thus incurred, and Party A is entitled to terminate this
Agreement and the cooperation hereunder.
3. Upon the receipt of user complaint for receiving any un-requested
message from Party B, Party A shall notify Party B accordingly, and
Party B shall investigate the reasons. In this case, Party A shall not
charge user any premium, and return any premium collected back to the
users, and Party A is entitled to terminate this Agreement and the
cooperation hereunder according to the current-month severity of
customer complaints.
4. In case Party A transfers customer complaints to Party B, Party B
shall respond to the customer service department of Party A within two
(2) hours with an initial reply, and investigate the reasons/handle
the complaint within one (1) working day. For legitimate complaints
caused by Party B, Party A is entitled to deduct RMB 500 yuan per each
customer complaint from the current-month due payment to Party B as
the default compensation; for complaints submitted to the relevant
authorities or media, Party A is entitled to deduct no less than RMB
10,000 yuan per each customer complaint as the default compensation.
And, Party A is entitled to terminate this Agreement and the
cooperation hereunder according to the default severity.
5. Party B shall ensure that a 100% response rate as to monthly customer
complaints (complaints handled by Party B and transferred back to
Party A/total complaints transferred to Party B by Party A = 100%)
shall be achieved, that complaints caused by SP are less than the
standard number of complaints ( which equals to Beijing Mobile's
monthly number of users of Monternet short-message services x 1.5
/10000 x Party B's monthly number of users of Monternet short-message
services/Monthly accumulated number of users of Monternet
short-message services of SPs accessed through Beijing Mobile), that
customer satisfaction (number of complaints settled with customers'
satisfaction/total number of complaints transferred to Party B by
Party A) is over 80%. Party A shall conduct monthly evaluation as to
Party B's handling of complaints. In case Party B fails in such
evaluations, Party A is entitled to deduct default compensation from
the due payment to Party B according to the default severity; if Party
B fails such evaluations for three (3) consecutive months, then Party
A is entitled to terminate this Agreement and the cooperation.
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6. To ensure the normal marketing of Monternet services, Party B shall
not directly or indirectly provide cross-operator short-message
services, including domestic cross-operator short-message services and
international short-message services, and shall not carry out
commission-based premium collection services (referring to using
Monternet short-message network to collect premiums that are not
generated or realized through such network) via the short-message
system of Party A. Otherwise, Party B shall indemnify Party A for any
loss thus incurred, and Party A is entitled to terminate this
Agreement and the cooperation hereunder.
7. In the event Party B fails to pay Party A the due payment for three
consecutive months and fails to pay off the unpaid balance and default
compensation, with 15 days of the delivery of past due notice, Party A
shall have the right to close the short message gateway, and terminate
this Agreement and the cooperation hereunder.
8. In the event that Party B fails to correct any breach of this
Agreement or any violation of relevant measures (including but not
limited to Short-Message Value- Added Services SP Cooperation
Administration Guideline promulgated by Party A and China Mobile
Telecommunications Group Corp.), after warning or request by Party A,
Party A shall have the right to close the short message gateway, and
terminate this Agreement and the cooperation hereunder.
9. In the event that this Agreement is terminated pursuant to any of the
above provisions, Party B shall be responsible for all damages
sustained by any third party.
ARTICLE 9 CONFIDENTIALITY
1 Proprietary Information refers to any valuable information developed,
created, found or disclosed to the receiving party by the disclosing party.
Proprietary Information includes but not limited to the trade secrets,
intellectual property rights (IPR) and technical secrets.
2 The parties shall protect the IPR and other Proprietary Information among
other trade secrets of its own and the other party. Without written consent
of the other party, either party shall keep the confidentiality of the
Proprietary Information of the other party, and shall not disclose any
Proprietary Information involving with
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the trade secrets and technical secrets of the other party to any third
party.
3 The parties shall keep the confidentiality of this cooperation and this
Agreement. Without prior written consent of the other party, either party
shall disclose the details of the cooperation and this Agreement to any
third party.
ARTICLE 10 DEFAULT LIABILITY
Failure of either party to perform any provision hereunder shall be deemed as
default. Upon receipt of the other party's written notice of the default, the
default party, if confirming the default, shall correct the default within
twenty (20) days thereafter with written notice to the other party. It the
notified party denies the default, it shall inform the other party thereof
within twenty (20) days or sate the reasons therefor. In this case, the parties
shall settle the dispute via consultation, or resort to the dispute settlement
provisions hereunder for any dispute failing friendly consultation, the default
party shall be liable for the loss thus incurred to the conforming party.
ARTICLE 11 LIABILITY LIMITATION
In case both party or either party fails to perform, partly or as a whole, the
obligations hereunder due to force majeure event, neither party shall be held
liable for the default liability. However, the affected party or the parties
shall notify the other party within fifteen (15) days thereafter and furnish
relevant supporting evidence. Either party or both parties shall resume the
performance of this Agreement after the elimination of the force majeure.
ARTICLE 12 DISPUTE SETTLEMENT
The parties may settle the dispute arising out of the performance hereunder via
friendly consultation. Either party may submit the dispute failing friendly
consultation to Beijing Arbitration Committee for arbitration according to its
rules. The arbitration award is final and binding upon the parties.
ARTICLE 13 EFFECTIVENESS, MODIFICATION, TERMINATION AND RENEWAL OF AGREEMENT
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1 This Agreement shall become effective on May 1, 2004 and expire on October
31, 2004; provided however, this Agreement shall not become effective prior
to procurement by Party B of qualifications contemplated in section 1 of
Article 1 of this Agreement. In case the parties do not terminate this
Agreement upon the expiration, this Agreement shall automatically renew for
another 6 months. The party rejecting the renewal shall notify the other
party thirty (30) days in advance of the expiration in writing or through
email thereabout.
2 This Agreement, 14 pages, is made in four (4) copies with each party
holding two (2) copies of equal validity. It shall take effect upon
execution and stamp of the duly authorized representatives of the parties.
3 The exhibits hereto constitute an integral part of this Agreement with
equal legal validity.
4 During the term of this Agreement, the parties may modify the provision
hereunder or terminate this Agreement upon friendly consultation. Either
party intending to change or modify this Agreement shall notify the other
party in writing thirty (30) days in advance. The party unilaterally
terminating this Agreement shall indemnify all loss thus incurred to the
other party.
Party A (seal): /s/ Xu Suming
Beijing Mobile Telecommunications Co., Ltd.
Party B (seal): /s/ Li Luyi
Beijing AirInBox Information Technologies Co., Ltd.