Contract Registration No.:
Exhibit 4.77
Contract
Registration No.:
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(Including
Technical Training and Technology Intermediary Services)
Registered
(seal)
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Project
Name:
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AgreementXS-0908-004
on Monternet Multimedia Messaging
Services
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Principal:
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China
Mobile Telecommunications Group
Corporation
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(Party
A)
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Agent:
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Beijing
AirInbox Information Technologies Co., Ltd.
(seal)
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(Party
B)
Place
of Execution: Haidian District, Beijing
Date
of Execution: April 23, 2009
Validity
Term: April 23, 2009 to December 31, 2009
YYXSHT
[2009] 494-16
Cooperation Agreement Between China Mobile
Telecommunications Group
Corporation And Multimedia Messaging
Services Provider
(Special Contract Seal of Beijing AirInbox Information
Technologies Co., Ltd.)
Party A: China Mobile
Telecommunications Group Corporation
Party B: Beijing AirInbox
Information Technologies Co., Ltd.
Both
Parties have, on the principles of equality and mutual benefit, and through full
and amicable consultations, reached an agreement as follows on the matter
regarding that Party B consigns Party A to provide Services of Monternet
Multimedia Messaging and charge collection for Party B. This Agreement is
formulated to define the rights and obligations of both parties during service
provision, which is equally binding upon both parties hereto.
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I.
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Principles for
Providing Services
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Both
parties will carry out faithful cooperation in MMS of mobile data services based
on benefit sharing, mutual benefits and win-win principles. Both parties shall
abide by the agreement and coordinate the counterpart.
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II.
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Services
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The
primary characteristic of Multimedia Messaging Service (“MMS”) provided by China
Mobile Communications Corporation is that it supports multimedia functions and
enables transmission of comprehensive contents and message, including text,
image, voice, data and messages in other multimedia formats.
As a
network operator, Party A shall provide the platform of MMS network and
communication services, and shall provide Party B with Monternet MMS
specification and the technical specification on interface. As a service
provider, Party B shall, in accordance with the specifications provided by Party
A, develop and provide content and application services. Only as approved by
Party A after testing, Party B can access to the MMS network platform as MMS
service provider.
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III.
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Responsibilities
of Both Parties
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(I)
Obligations of Party A
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1.
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Party A shall promote and
publicize Monternet MMS by making use of media (e.g., TV advertisement.
Post etc.), so as to attract more users to use this
service.
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2.
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Party
A shall provide the technical specifications of interface for MMS access,
so as to ensure successful access of Party B to Party A’s MMS network
platform.
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3.
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Party
A shall, as required by Party B, provide necessary training to Party
B.
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4.
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With
the firewall of Party A’s MMSC system and Party B’s interface as the
boundary, Party A shall maintain all equipment at its side and ensure
normal operation of such equipment.
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5.
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Party
A shall provide day-to-day maintenance for MMS network platform. Party A
shall, in case of any failure caused by Party A, resolve such failures to
ensure normal operation of application
services.
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6.
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Party
A shall provide network interface services to Party B for free, and assist
Party B to access the application services to MMS network
platform.
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7.
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Party A shall establish the
indicators for MMS business, inform Party B of such index on complete and
unambiguous manner and provide enough time for Party B to realize such
index.
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8.
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With
respect to the services provided by Party B in MMS network platform, Party
A shall calculate the charges based on the rate that is provided by Party
B and recognized by Party A, and charge Party A’s customers who use the
services provided by Party B, and shall conduct settlement to Party B
based on relevant clauses in Part 6
hereunder.
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9.
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Party A shall be responsible for
consultation and complaints from customers, and handle consultation and
complaints resulted from network, operation platform billing and other
reasons of Party A. Party A shall, in case of consultation and complaints
caused by Party B, inform Party B of the situation and urge Party B to
solve the problems.
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(II)
Obligations of Party B
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1.
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Party B shall
perform all the requirements and obligations specified in Monternet SP
Cooperation and Management Measures, SSM Section.
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2.
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Party
B shall, by making use of the media (including WEB Site, WAP Site, print
media, TV etc) under its control, promote MMS. Party B shall, in the case
of using the name and business trademark of Party A to promote Monternet
MMS business, obtain the prior agreement of Party A. Without written
consent of Party A, Party B shall not promote businesses not included
herein in the name of “China Mobile” or “Monternet” by
media.
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3.
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Party
B shall, according to the contents of project, provide necessary
equipment, including MMS application server, application software,
information source and special line for application data and ensure normal
operation of such equipment as required by Party
A.
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4.
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Party B shall coordinate Party A
for interface testing and ensure that the MMS provided by Party B is in
line with the specification for MMS network platform and the technical
specification on interface as provided by Party
A.
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5.
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With
the firewall of Party A’s MMSC system and Party B’s interface as the
boundary, Party B shall conduct maintenance to all equipment at its own
side and ensure normal operation of such
equipment.
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6.
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Party
B shall, in case of failures concerning application services cased by
Party B, resolve such failure immediately and take practical measures to
ensure that the same or similar failures do not recur in the future. In
case of economic losses to Party A or Party A’s MMS customers incurred by
Party B, Party B shall be liable for compensation
therefor.
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7.
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Party
B shall be responsible for negotiations and commercial agreements with the
direct providers for the contents of application services (e.g., the
property right owner of image and music). Party B shall ensure all
information and services as provided would not violate relevant policies
and regulations of the State, and would not infringe the interests of
consumers as well as the intellectual property right and relevant benefits
of the third party. Party B shall assume the relevant responsibilities for
litigations incurred.
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8.
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Without
the written consent of Party A, Party B shall not unilaterally provide the
services not recognized by Party A.
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9.
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With
respect to the application services provided by Party B for Party A, in
whatsoever transmission and carrying ways, Party B shall not provide such
services for other communication operators; otherwise, Party A shall have
the right to terminate the application services provided by Party B in
Party A’s MMS network platform and terminate the settlement with Party
B.
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10.
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Party B shall provide all
necessary materials for the billing clearly and unambiguously to Party A
and shall bear all economic and legal
liabilities.
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11.
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Party B shall be obliged to
provide Party A with all statistic data concerning the use of Party B’s
MMS application services by Party A’s
customers.
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IV.
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Rights
of Both Parties
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(I)
Rights of Party A
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1.
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Party A shall have the right to,
by its own or entrusting certain institutions, inspect the content of the
information and applications services provided by Party
B.
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2.
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Party A shall have the right to
refuse to make the information that goes against national laws,
regulations and policies or is deemed improper by Party A unavailable to
customers; Party A shall also have the right to request Party B to
compensate for the subsequent negative influences to Party A’s economy and
goodwill.
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3.
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Party A shall have the right to
request Party B to amend, correct or delete the contents that shall be
amended, corrected or deleted as deemed by Party
A.
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4.
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Party A shall have
the right to establish indices for evaluating services provided by Party
B, and to evaluate the services provided based thereon. Please refer to
Chapter 9 of Monternet SP
Cooperation and Management Measures, SSM Section, Appendix hereof, for detailed
measures of
evaluation.
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5.
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Party A shall have the right to
conduct direction and supervision over the charging standard of Party B’s
businesses.
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6.
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Party A shall be entitled to
reasonable allocation of charges based hereon. (Please refer to Part 7
hereof for the allocation of
charges).
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(II)
Rights of Party B
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1.
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Party B is entitled to determine,
under the instruction of Party A, the charging rates of services
provided.
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2.
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Party
B is entitled to obtain statistical data of users’ access to the
information and application service contents through network
platform.
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3.
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Party A shall not transfer,
publish or resell Party B’s information products in any form to any third
Party hereto without the prior written consent or authorization from Party
B.
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4.
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Party
B shall be entitled to partial reasonable allocation of business charges
based hereon. Please refer to Part 7 hereof for the allocation of
charges.
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5.
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Party B is entitled to
reconciliation for major differences between statistical data of both
Parties. Please refer to Chapter 6 of Monternet SP
Cooperation and Management Measures, SSM Section, Appendix
hereof,.
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V.
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Intellectual
Property Right
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1.
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Party A authorizes Party B to use
its trademark and company name for the purpose agreed hereupon. Party B
shall ensure proper and reasonable use of Party A’s trademark and company
name, shall not change, without authorization, or misrepresent
the image of Party A and any part of it, and shall not use Party A’s
trademark and company name for any purpose other than as expressly agreed
under this Contract.
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2.
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Party A holds the copyright of
all promotional materials provided for Party B by Party A in line of this
Contract and the creations, designs, graphics, figures and words contained
therein. Party B shall not use such materials and contents for any purpose
other than as agreed hereunder or allow any third party to use, without
the prior written consent from Party
A.
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VI.
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Confidentiality
Provision
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1.
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For
the purpose of this Agreement, “Proprietary Information” refers to the
information which one party obtains from the other party (“Disclosing
Party”) when Party A provides Services for Party B that is developed,
created and found by the Disclosing Party, or is known, or assigned to the
disclosing party and is commercially valuable to the disclosing party.
Proprietary Information includes but not limited to information related to
relevant business secret, computer program, designs and technologies,
ideas, knowhow, process, data, business and product development plan,
client information related to the business of the Disclosing Party and the
like, or other confidential information received by the Disclosing Party
from other third party. Both parties understand that the Disclosing Party
owns and will own the Proprietary Information which is essential to the
Disclosing Party. The cooperation between the parties results in
non-disclosure and trust relating to Disclosing Party between the
parties;
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2.
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Without the prior consent in
writing from the Disclosing Party, the other party shall keep confidential
any Proprietary Information, and shall not use or disclose any of such
Proprietary Information to any individual or entity, except the disclosure
required by the implementation of obligations
hereunder.
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3.
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Both
parties are obliged to keep this cooperation and the detailed content of
this Agreement confidential. Without the prior consent from the other
party, one party shall not disclose the detailed contents of this
Agreement to any third party.
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VII.
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Charge
Allocation and Settlement
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1.
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Party B provides MMS for Party
A’s customers through Party A’s MMS platform and communication platform.
Both parties are entitled to reasonable allocation of charges based on the
provisions hereunder.
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2.
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Party B shall, if Party A’s
customers need to use Party A’s network resource when using services
provided by Party B, pay the subsequent unbalanced communication fees to
Party A.
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3.
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With respect to the information
fees receivable due to the use of services provided by Party B by
customers, Party A shall be entitled to 15% of such information fees as
compensation for calculation and collection of information fees. After
Party B provides valid invoice to the provincial subsidiary of Party A of
the access location, such provincial subsidiary shall conduct settlement
with Party B.
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4.
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Basis of settlement: the
information fee list concerning Monternet MMS provided by China Mobile
Communications
Corporation.
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5.
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Party B will, based on the
settlement list provided by the provincial subsidiary of Party A of the
access location, make settlement with the provincial subsidiary. Party B
does not need to execute agreements otherwise with such provincial
subsidiary.
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6.
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Settlement period: Party A makes
settlement with Party B in every calendar
month.
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7.
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Please refer to
Chapter 6 of Monternet SP
Cooperation and Management Measures, SSM Section, Appendix hereof, for
calculation principles and settlement
procedures.
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8.
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Each Party shall, in line with
the taxation provisions, be responsible for its own tax payment resulting
from performance
hereof.
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9.
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Party B shall provide accurate
bank account information for Party
A.
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Name of
the account: Beijing AirInbox Information Technologies Co.,
Ltd.
Bank of
deposit: ICBC Capital Indoor Stadium Sub-branch
Account
No.: 0200053719200031688
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VIII.
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Liabilities
for Breach of Contract
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1.
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In the event that this Agreement
cannot be carried out due to either Party’s breach of this Agreement, the
observant Party shall have the right to terminate this Agreement and
request compensation from the breaching Party for losses caused by such
breach.
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2.
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In the event of either Party’s
breach of Contract which causes harmful social influences or economic
losses to the observant Party, the observant Party shall have the right to
investigate the breaching Party’s liabilities, request for relevant
economic compensation until the termination hereof.
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IX.
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Term
of Agreement
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1.
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This Agreement
shall come into force on the date of signing and expire on December
31,
2009.
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2.
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If both Parties agree to continue
the cooperation under the Agreement, the Agreement shall automatically be
extended for one year upon expiration. If any party decides not to extend
this Agreement, it shall notify the other Party such decision one month
before the expiration of this Agreement in
writing.
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3.
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During
the period of validity of the Agreement, the Agreement shall automatically
terminate if both parties agree to terminate this
Agreement.
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4.
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Where there is force majeure
event making further performance of this Agreement impossible, this
Agreement will automatically terminate after both Parties complete all
settlements.
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5.
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Where any Party cannot perform
this Agreement for any predictable event, this Party shall inform the
other Party of such event within 5 working days after predicting the
event, and cooperate with the other Party in completion of all unsettled
matters. In the event that one party shall sustain loss due to
failure of the other party for informing the party of the event timely,
the other party shall be liable for compensation
therefor.
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X.
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Miscellaneous
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1.
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1.
The appendix to this Agreement, Monternet SP
Cooperation and Management Measures, SSM Section, shall bear the
same legal effect as this
Agreement.
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2.
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The
matters not covered in the Agreement shall be solved by both parties
through amicable negotiation.
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3.
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Any dispute arising from this
Agreement or in connection with the contents or performance of this
Agreement shall be resolved by both parties through amicable negotiation;
if such negotiation fails, either Party may file a lawsuit to a competent
Chinese court.
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4.
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If any national policy changes,
both Parties shall revise relevant clauses of this Agreement according to
the changed policy.
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5.
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This
Agreement is made in duplicate, one copy for Party A and one copy for
Party B respectively. Each copy has the same legal
effect.
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Party A: China
Mobile
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Party B: Beijing AirInbox
Information
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Telecommunications
Group Corporation
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Technologies
Co., Ltd.
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Authorized
Representative:
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(Special Contract Seal of
Beijing
AirInbox
Information Technologies Co.,
Ltd..)
Authorized
Representative:
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Date:
April 23, 2009
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Date:
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