[Translation of Chinese original]
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EXHIBIT 10.12
EXCLUSIVE TECHNICAL CONSULTING AND SERVICES AGREEMENT
This Exclusive Technical Consulting and Services Agreement (the
"Agreement") is entered into in Beijing as of March, 31, 2004, between the
following two parties:
PARTY A: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD.
PARTY B: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
WHEREAS,
1. Party A, a wholly foreign-owned enterprise registered in People's
Republic of China (the "PRC", excluding Hong Kong Special Administration
District, Macao Special Administration District and Taiwan area, for the purpose
of this "Agreement") under the laws of PRC, which owns resources to provide the
technical and consulting services.
2. Party B, a wholly domestic invested company registered in PRC, is
licensed by relevant government authorities to engage in the business of the
Internet information provision service and value-added telecommunication
service;
3. Party A agrees to be the provider of technical and consulting services
to Party B, and Party B hereby agrees to accept such technical and consulting
services;
WHEREAS, Party A and Party B, through friendly negotiation and based on
the equality and mutual benefit, enter into the Agreement as follows:
1. TECHNICAL CONSULTING AND SERVICES; OWNERSHIP AND EXCLUSIVE INTERESTS
1.1 During the term of this Agreement, Party A agrees to provide the
relevant technical consulting and services to Party B (the content is
specified in Appendix 1) in accordance with the Agreement.
1.2 Party B hereby agrees to accept such technical and consulting
services. Party B further agrees that, during the term of this
Agreement, it shall not utilize any third party to provide such
technical and consulting services for such above-mentioned business
without the prior written consent of Party A.
1.3 Party A shall be the sole and exclusive owner of all rights, title,
interests and intellectual property rights arising from the
performance of this Agreement, including, but not limited to, any
copyrights, patent, know-how, commercial secrets and otherwise,
whether developed by Party A or Party B based on Party
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A's intellectual property.
1.4 Party B covenant that Party A or its affiliated companies have the
priority on cooperation with party B in the same condition in case
Party B is going to cooperate with other enterprises in respect of any
business.
2. CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL AND CONSULTING SERVICES
(THE "FEE")
Both Parties agree that the Fee of this Agreement shall be calculated and
paid according to the Appendix 2 this Agreement.
3. REPRESENTATIONS AND WARRANTIES
3.1 Party A hereby represents and warrants as follows:
3.1.1 Party A is a company duly registered and validly existing under
the laws of the PRC;
3.1.2 Party A has full right, power, authority and capacity and all
consents and approvals of any other third party and government
necessary to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts;
3.1.3 the Agreement will constitute a legal, valid and binding
agreement of Party A enforceable against it in accordance with
its terms upon its execution.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a company duly registered and validly existing under
the laws of the PRC and is licensed to engage in the business of
Internet information provision services and value-added
telecommunication services.
3.2.2 Party B has full right, power, authority and capacity and all
consents and approvals of any other third party and government
necessary to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts.
3.2.3 Once the Agreement has been duly executed by both parties, it
will constitute a legal, valid and binding agreement of Party B
enforceable against it in accordance with its terms upon its
execution.
4. CONFIDENTIALITY
4.1 Party B agrees to use all reasonable means to protect and maintain the
confidentiality of Party A's confidential documents and information
acknowledged or received by Party B by accepting the exclusive
consulting and services from Party A (collectively the "Confidential
Information"). Party B shall not disclose
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or transfer any Confidential Information to any third party without
Party A's prior written consent. Upon termination or expiration of
this Agreement, Party B shall, at Party A's option, return all and any
documents, information or software contained any of such Confidential
Information to Party A or destroy it, delete all of such Confidential
Information from any memory devices, and cease to use them. Party B
shall take necessary measures to keep the Confidential Information to
the employees, agents or professional consultants of Party B who are
necessary to get to know such Information and procure them to observe
the confidential obligations hereunder.
4.2 The limitation stipulated in Section 4.1 shall not apply to:
4.2.1 the materials available to the public at the time of disclosure;
4.2.2 the materials that become available to the public after the
disclosure without fault of Party B;
4.2.3 the materials Party B prove to have got the control neither
directly nor indirectly from any other party before the
disclosure;
4.2.4 the information that each Party is required by law to disclose
to relevant government authorities, stock exchange institute, or
that is necessary to disclose the above confidential information
directly to the legal counselor and financial consultant in
order to keep its usual business.
4.3 Both Parties agree that this article shall survive the modification,
elimination or termination of this Agreement.
5. INDEMNITY
Party B shall indemnify and hold Party A harmless from and against any loss,
damage, obligation and cost arising out of any litigation, claim or other legal
procedure against Party A resulting from the contents of the technical
consulting and services demanded by Party B.
6. EFFECTIVE DATE AND TERM
6.1 This Agreement shall be executed and come into effect as of the date
first set forth above. The term of this Agreement is ten (10) years,
unless earlier terminated as set forth in this Agreement or in
accordance with the terms set forth in the agreement entered into by
both parties separately.
6.2 This Agreement may be automatically extended for another ten years
except Party A gives its written notice of the termination of this
Agreement three months before the expiration of this Agreement.
7. TERMINATION
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7.1 This Agreement shall expire on the date due unless this Agreement is
extended as set forth in the relevant terms hereunder.
7.2 During the term of this Agreement, Party B cannot terminate this
Agreement before the schedule time. Notwithstanding the
above-mentioned, Party A may terminate this Agreement at any time with
a written notice to Party B 30 days before such termination. If Party
A terminate the Agreement in advance duo to Party B's reason, Party B
shall take the liability to compensate all the losses caused thereby
to Party A and shall pay the relevant fees for the services provided.
7.3 Article 4 and 5 shall survive after the termination or expiration of
this Agreement.
8. SETTLEMENT OF DISPUTES
8.1 The parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement
through friendly consultation. In case no settlement can be reached
through consultation, each party can submit such matter to China
International Economic and Trade Arbitration Commission (the
"CIETAC"). The arbitration shall follow the current rules of CIETAC,
and the arbitration proceedings shall be conducted in Chinese and
shall take place in Beijing. The arbitration award shall be final and
binding upon Both Parties. This article shall not be influenced by the
termination or elimination of this Agreement.
8.2 Each Party shall continue to perform its obligations in good faith
according to the provisions of this Agreement except for the matters
in dispute.
9. FORCE MAJEURE
9.1 Force Majeure, which includes but is not limited to, acts of
governments, acts of nature, fire, explosion, typhoon, flood,
earthquake, tide, lightning, war, means any event that is beyond the
party's reasonable control and cannot be prevented with reasonable
care. However, any shortage of credit, capital or finance shall not be
regarded as an event of Force Majeure. The affected party who is
claiming to be not liable to its failure of fulfilling this Agreement
by Force Majeure shall inform the other party, as soon as possible, of
the approaches of the performance of this Agreement by the affected
party.
9.2 In the event that the affected party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure, only
within the scope of such delay or prevention, the affected party will
not be responsible for any damage by reason of such a failure or delay
of performance. The affected party shall take appropriate means to
minimize or remove the effects of Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the event of
Force Majeure. After the event of Force Majeure is removed, both
parties agree to resume performance of this Agreement with their best
efforts.
10. NOTICES
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Notices or other communications required to be given by any party pursuant to
this Agreement shall be written in English and Chinese and shall be deemed to be
duly given when it is delivered personally or sent by registered mail or postage
prepaid mail or by a recognized courier service or by facsimile transmission to
the address of the relevant party or parties set forth below.
PARTY A: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD.
▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇, ▇▇▇ ▇▇▇ North Street, Xi Cheng
District, Beijing
Fax: (▇▇) ▇▇-▇▇▇▇▇▇▇▇
Tele:(▇▇) ▇▇-▇▇▇▇▇▇▇▇
Addressee: ▇▇▇▇▇▇ ▇▇▇▇
PARTY B: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇, ▇▇▇ ▇▇▇ North Street, Xi Cheng
District, Beijing
Fax: (▇▇) ▇▇-▇▇▇▇▇▇▇▇
Tele:(▇▇) ▇▇-▇▇▇▇▇▇▇▇
Addressee: Yang Zha
11. ASSIGNMENT
Party B shall not assign its rights or obligations under this Agreement to any
third party without the prior written consent of Party A. Party A can transfer
its rights or obligations under this Agreement to any third party without the
consent of Party B but shall inform Party B of the above assignment.
12. SEVERABILITY
Any provision of this Agreement that is invalid or unenforceable because of any
inconsistency with relevant law shall be ineffective or unenforceable within
such jurisdiction where the relevant law governs, without affecting in any way
the remaining provisions hereof.
13. AMENDMENT AND SUPPLEMENT
Any amendment and supplement of this Agreement shall come into force only after
a written agreement is signed by both parties. The amendment and supplement duly
executed by both parties shall be part of this Agreement and have the same legal
effect as this Agreement.
14. GOVERNING LAW
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The execution, validity, performance and interpretation of this Agreement shall
be governed by and construed in accordance with the PRC laws.
IN WITNESS THEREOF the Parties hereto have caused this Agreement to be
duly executed on their behalf by a duly authorized representative as of the date
first set forth above.
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PARTY A:KONGZHONG TECHNOLOGY (BEIJING) CO., LTD.
Authorized Representative: /s/ ▇▇▇▇ ▇▇▇▇
____________________________
PARTY B: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
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Authorized Representative: /s/ Yang Zha
_____________________________
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APPENDIX 1
THE CONTENT LIST OF TECHNICAL AND CONSULTING SERVICES
1. maintenances of the machine room and website;
2. provision and maintenances of the office network;
3. integrated security services for the website;
4. design and implementation of the integrated structure of the network of the
website, including the installation of the server system and 24 hours'
daily maintenances each week.
5. development and test of new products;
6. marketing and strategic plan of new products;
7. conception, creation, design, update and maintenance of the web pages;
8. maintenance of the clients service platform;
9. training of the employees;
10. study and analysis on market;
11. public relationship service
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APPENDIX 2
CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL AND CONSULTING SERVICES
The service fees hereunder shall be monthly calculated by 20% to 25% of the
monthly package fees paid by Party B' end users to Party B (accumulated by all
the package end users) and 20% to 25% of the fees of every message paid by Party
B's clients (accumulated by the amount of the actual messages). The exact
proportion above mentioned (within the scope of 20% to 25%) shall be decided by
Party A in accordance with the actual service it provides to Party B and shall
be calculated quarterly and Party B shall pay the service fees 15 days after
each quarter. Meanwhile, both Parties agree that Party B shall be exempted from
paying any service fees until Party B starts making profits.
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