Content License Agreement - ChinaPlus (Beijing) Co. Ltd. and Beijing Lei Tin Wan Jun Network Technology Ltd.
[Translation of Chinese original]
Content License Agreement
Ref No.: LTWJ-1588
Party A: ChinaPlus (Beijing) Company Limited (hereinafter referred to as "Party
A")
Legal representative: Yao Songyi
Company address: Room 1-6, 9/th/ Floor, Block 3, Oriental Plaza West Tower
Office, No. 1, East Chang An Avenue, Dong Cheng District, Beijing
Company telephone no.: 86-10-65268800 Postal Code: 100738
Party B: Beijing Lei Ting Wan Jun Network Technology Limited (hereinafter
referred to as "Party B")
Legal representative: Wang Leilei
Company address: 8/th/ Floor, Office Tower W3, Oriental Plaza, No.1 East Chang
An Avenue, Dongcheng District, Beijing
Company telephone no.: 86-10-65283399 Postal Code: 100738
With the aim of pursuing joint development and to maximize each party's
strength, after cordial negotiations, the parties hereto agree on the following
terms in respect of licensing content, based on the concept of equality and
mutual benefit.
Clause 1 Licensing
1. Party A shall license the following non-exclusive, legal and valid "content
including SMS and MMS messages" to Party B to use in the People's Republic
of China (excluding Taiwan, Hong Kong and Macau).
2. Party A shall license to Party B to use, broadcast, exhibit and transmit
the "content including SMS and MMS messages" through the Internet,
"wireless telecommunications equipment" or other media, and permit users of
Party B's website to download such content. Party B shall transmit such
"content including SMS and MMS messages" to mobile telephone users
according to their requests through a link between the server of Party B's
website and the gateway of the mobile telecommunications operators, or by
transmitting from the server of Party B's website and through a link
between a third party's server as specified by Party B and the gateway of
the mobile telecommunications operators of Party B's website.
3. Subject to the provisions under this Agreement, Party B shall not provide
to any third party the "content including SMS and MMS messages" for the use
in any
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profit-making commercial activities without the consent of Party A.
4. For details of the content, please refer to Appendix 1.
Clause 2 Term
1. This agreement shall be valid for 1 year commencing from the date of
execution by both parties. Upon termination of this Agreement, Party B
shall not continue to use the content in any form (including but not
limited to SMS and WAP) or distribute the same to mobile terminal users.
Clause 3 Fees and Terms of Payment
1. Basis of Calculation: the fees for the cooperative service shall be
determined by both parties upon negotiation (expressed as RMB per message),
and shall be collected by the mobile telecommunications operators from the
users on behalf of Party B. The share allocation for the net profit, net of
relevant expenses between both parties is set out in Appendix 1. The
relevant fees for SMS services are as follows: China Mobile collects 15% of
the content fees and charges a transmission fee of RMB0.08 per message;
China Unicom collects 12% of the content fees and does not currently charge
a transmission fee. The MMS fees are as follows: China Mobile collects 15%
of the content fees and charges a transmission fee of RMB0.30 per message.
Potential unsuccessful billing is factored in determining the SMS and MMS
fees.
2. Party A's revenue = (Total revenue - transmission fee - share of mobile
telecommunications operators' content fees) * successful billing rate 58% *
Party A's share ratio.
3. Settlement Time - Party A and B shall settle payment every 3 months. Party
B shall pay Party A the amount receivable by Party A by check within 15
days from the end of each 3 months' period and Party A shall issue a formal
receipt to Party B.
4. After receiving invoices issued by China Mobile and China Unicom, Party B
shall deliver an itemized invoice, separately prepared by Party B with
reference to invoices issued by China Mobile and China Unicom, to Party A
in respect of cooperation arrangements of both parties for Party A's
verification. Where China Mobile and China Unicom are unable to provide
itemized invoice, data from Party B shall prevail.
5. Where China Mobile and China Unicom are unable to settle with Party B as
scheduled and a delay in the settlement between Party A and B results
therefrom, Party B shall not be deemed a defaulting party. Party A and B
shall negotiate to settle the case.
6. Where there is any change in the tariff charged by China Mobile and China
Unicom, Party A and B shall negotiate a new sharing arrangement in written
form in
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accordance with the relevant requirements stipulated in "Monternet" of
China Mobile or "UNI-Info" of China Unicom.
Clause 4 Duty and Obligation of Party B
1. Party B shall provide featured SMS and MMS messages in the relevant
channels of its websites and be responsible for providing network resources
and technical support as necessary to provide the above-mentioned services
and for the operation and routine maintenance of the cooperation
arrangements. Party B is entitled to verify contents provided by Party A in
respect of cooperation arrangements.
2. Party B shall send data downloaded by subscribers to their handsets by
mobile telecommunications. Where subscribers are unable to duly receive
messages due to faults of China Mobile or China Unicom, no responsibility
shall be borne by Party B whereas Party B shall be obliged to negotiate
with China Mobile or China Unicom to settle the case as soon as possible.
3. Party B shall use its resources to promote its services whenever possible
during the cooperation period. Party A shall be informed of the details of
promotional activities in advance.
4. Party B shall provide monthly records of downloaded data to Party A and
allow daily data inspection by Party A.
5. Where there is any dispute regarding revenue sharing, Party B shall
facilitate Party A to review the downloaded data.
Clause 5 Duty and Obligation of Party A
1. Party A shall arrange its content in certain required formats and send them
to Party B in the form of electronic bulletins.
2. Party A shall provide Party B with the relevant material necessary for
Party B's promotion on its websites.
3. During the cooperation period, Party A authorizes Party B to name the
cooperation arrangement as "Ha Han Feng".
4. Party A shall occasionally provide Party B with the latest accumulated
cooperation contents.
Clause 6 Technological Analysis Test
1. Party A and B shall perform a technological analysis after the execution of
this agreement. Meanwhile, Party B shall be responsible for reporting
arrangements to China Mobile and China Unicom and negotiating the price.
Fee billing for the cooperation arrangements shall not be effective until
the reported items are duly approved (not later than 30 days after the
execution of the agreement).
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2. During the period for the technological analysis, where the cooperation
between Party A and B becomes unfeasible due to technological grounds or
the disapproval of China Mobile and China Unicom, neither Party A nor B
shall be deemed a defaulting party.
Clause 7 Copyright Guarantee
Party A shall guarantee that it owns the copyright or other legal rights over
all the content it provides to Party B. Where the SMS and MMS content violates
the provisions of relevant law, rules and regulations of the People's Republic
of China or infringe legal rights of the others, Party A shall bear all the
responsibilities.
Clause 8 Confidentiality
With respect to unpublicized technological information and commercial secrets
obtained from the other party in the course of cooperation, Party A and B shall
keep the confidentiality. Party A and B shall not disclose the above information
to any third party/parties without written approval from the other party,
failing which the defaulting party shall bear all the responsibilities and be
liable to compensate the other party.
Clause 9 Force Majeure
Where the agreement failed to be performed due to force majeure ("force majeure"
refers to objective events unpredictable, unavoidable and unrecoverable by both
parties to the agreement, such as earthquake, typhoon, war, strike, governmental
act, fire due to reasons other than faults by both parties and
telecommunications factors, etc.), no responsibility shall be borne by both
parties and Part A and B shall negotiate to amend or waive the agreement.
Clause 10 Entirety and Separability
1. This agreement is a complete result of the relevant issues discussed above
and agreed upon by both parties, and hereby supercedes any other agreements
reached by both parties in respect of the above issues reached prior to the
execution of this agreement.
2. Where any clause of this agreement becomes invalid or unenforceable, in
whole or in part, due to reasons of any nature, or violates any applicable
law, the said clause shall be deemed void. Nevertheless, other clauses of
the agreement shall remain effective and have binding effect on both
parties.
Clause 11 Effectiveness, Amendment and Early Termination
1. This agreement shall become effective from the date on which it is executed
by legal representatives or authorized representatives of both parties.
Party A and B agree that
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this agreement may be amended or terminated prematurely through negotiation
in by written form.
2. Where any of the following occurs, the other party shall be entitled to
independently terminate the agreement by giving written notices:
(a) Either party is in default and is unable to remedy the defaulting act
within 10 days after the issuance of written notices in accordance
with this agreement by the observing party, or the defaulting party is
unable to adopt sufficient, effective, prompt measures to remedy the
outcome of the default and to compensate losses suffered by the
observing party due to the act of the defaulting party;
(b) Either party becomes insolvent, or is in liquidation and the related
procedures are not withdrawn within 14 days;
(c) Either party is unable to further observe the agreement due to force
majeure.
3. Early termination of the agreement shall not have any impact on the rights
and obligations vested with both parties in accordance with the agreement
prior to the early termination date of the agreement.
Clause 12 Settlement of Dispute
Where there is any dispute arising from the interpretation and observation of
the agreement, Party A and B agree to refer the case to Beijing Arbitration
Committee for its arbitration in accordance with prevailing arbitration rules of
the committee. The arbitration result shall be final and have binding force on
both parties.
Clause 13 Assignment of the Agreement
Either party shall not assign its rights and obligations under the agreement
without prior written consent from the other party to other party/parties except
for its 100% holding parent company or subsidiary.
Clause 14 Miscellaneous
1. The appendices hereto are an inseparable and integral part to this
Agreement and shall have the same legal effect with the main text of the
Agreement. In a case of discrepancy between the appendices and this
Agreement, the Agreement shall prevail. For any matters not covered in this
Agreement, both parties may subsequently enter into a supplementary
agreement which is deemed to be an integral part of this Agreement and also
have the same legal effects. In case of discrepancy, the supplementary
agreement subsequently entered into would prevail.
2. To be valid, this Agreement shall be signed by legal or authorized
representatives of both parties, together with the specific seals (or
official seals) of the respective units
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affixed.
3. This Agreement shall be made in duplicate counterparts with the same legal
effect. Each party shall hold one copy.
Party A: ChinaPlus (Beijing) Company Party B: Beijing Lei Ting Wan Jun
Limited Network Technology Limited
Seal: (chop affixed) Seal: (chop affixed)
Signature of the representative: Signature of the representative:
Date: 2003.5 Date: 2003.4.30
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Appendix 1: List of Cooperation Products
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Party B's net
List of content items profit ratio
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Picture --
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Special topic brand (black and white) 48%
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Special topic brand (grey scale) 48%
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Special topic brand (color pictures) 46%
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Special topic brand (animation) 46%
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MMS messages 46%
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Schedule to Exhibit 10.10
Pursuant to Instruction 2 to Item 601 of Regulation S-K under the
Securities Act of 1933, as amended, the following is a schedule of documents
substantially identical in all material respects except as to the parties
thereto, the dates of execution, or other material details from the document
filed as Exhibit 10.10.
Exhibit 10.10 Filed
Agreement: Content License Agreement
Date: April 30, 2003
Party A: ChinaPlus (Beijing) Company Limited
Party B: Beijing Lei Tin Wan Jun Network Technology Limited
Scope: Party B is entitled to 46% to 48%, depending on the type of content
being sold, of the net profit per sale of such content.
Agreements Substantially Identical to Exhibit 10.10 and Omitted
Agreement: Content License Agreement
Date: August 6, 2003
Party A: ChinaPlus (Beijing) Company Limited
Party B: Shenzhen Freenet Information Technology Company Limited
Scope: Party B is entitled to 40%, depending on the type of content being
sold, of the net profit per sale of such content.
Agreement: Content License Agreement
Date: August 6, 2003
Party A: ChinaPlus (Beijing) Company Limited
Party B: Beijing GreaTom United Technology Company Limited
Scope: Party B is entitled to 40%, depending on the type of content being
sold, of the net profit per sale of such content.
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