AGREEMENT OF BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD. ON CONFIDENTIALITY AND NON-COMPETE
Exhibit
4.38
AGREEMENT
OF BEIJING
AIRINBOX INFORMATION
TECHNOLOGIES
CO., LTD. ON
CONFIDENTIALITY
AND NON-COMPETE
This
Agreement
on Confidentiality and Non-compete
(hereinafter this “Agreement”) is entered into by and between Beijing AirInbox
Information Technologies Co., Ltd., a Company incorporated and validly
subsisting under the laws of China (hereinafter “Beijing AirInbox”) and
________________ (hereinafter the “Employee”) on _________ (dd/mm/yy).
Whereas
the Employee recognizes that the position held by it involves the Company’s
business and technical information which belongs to the Company in the nature
of
confidentiality (hereinafter the “Confidential Information”), and that it is to
ceaselessly have access to more Confidential Information in performing its
functions;
Whereas
the Employee acknowledges that disclosure of any Confidential Information to
the
Company’s existing or potential rivals may render the Company being in an
extremely unfavorable competitive position and harm the Company’s
interests;
Whereas
the Employee further acknowledges that, if it leaves the Company and works
with
a unit in competition with the Company, the Company’s interests are to be
harmed;
For
convenience of each Party’ observation of relationship regarding confidentiality
and non-compete, both Parties have, through friendly consultations, reached
an
agreement as follows:
Article
1: Definitions
The
“Company”
refers
to Beijing AirInbox and all the companies whose financial statements may be
consolidated with those of KongZhong Corporation in accordance with US generally
accepted accounting policies, all its branches, subsidiaries, companies in
which
Beijing AirInbox holds more than 5% of shares as well as companies as partners
in cooperation with the foregoing companies.
The
“Trade Secret” refers to any useful information or business
operation information which is exclusively owned or kept confidential by the
Company but unknown to the public, and able to bring about economic benefits
to
the Company, and about which the Company has adopted secret-keeping measures
for
restriction, including but not limited to: information, development, know-how,
invention (with or without patent rights), experiment note, test program,
software design and structure, computer data, internal document or other report,
analysis, performance information, software document in relation to the
Company’s products, their characteristics and operator schema; other technology,
business, product, marketing and plan; or other matters relating to the Company,
any of its clients, consultants or licensees.
1
The
“Confidential
Information”
refers
to any information which is unknown to the public other than the employees
of
Beijing AirInbox and the Company such as trade secrets, technical information,
financial information, marketing information, and information on the Company’s
staff members and clients in relation to the Company, including without
limitation, all the information fixed on the carriers such as paper, physical
goods, diskette or CD to which no access can be gained through public channels.
The Confidential Information does not include:
(a)
information or materials having been possessed by the public when transmitted
to
the Employee;
(b)
information or materials having been possessed by the public at no fault of
the
Employee following transmission of them to the Employee;
(c)
information or materials having belonged to the Employee when transmitted to
the
Employee and at that time the Employee has no obligation toward the Company
to
keep them confidential; and
(d)
information or materials subsequently transmitted by a third party to the
Employee in no violation of any obligations toward the Company to keep them
confidential.
Article
2: Non-Compete Undertaking
|
2.1
|
Confidentiality
Obligation
|
2.1.1
The
Confidential Information may only be used by the Employee for its work with
Beijing AirInbox, instead of any other purpose.
2.1.2
The
Employee shall, during its term of office with Beijing AirInbox, not accept
or
obtain (nor allow any associated persons to accept or obtain) any occupational
interests or positions in any individuals, enterprises, organs, institutions
or
other public organizations in competition with the Company’s business, or render
to such individuals, enterprises, organs, institutions or other public
organizations any consultancy service or other assistance (e.g. assisting in
engaging in the business identical with or similar to that conducted by the
Company or such business to be developed by resolution of the Company’s board of
directors); nor shall it make business which is the same as or similar to that
to be developed by resolution of the Company’s board of directors or that of the
Company in which it takes office for itself or for others.
2
2.1.3
The
Employee shall, during its term of office with Beijing AirInbox, not directly
or
indirectly use or divulge by any means to any individuals, enterprises, organs,
institutions or other public organizations any Confidential Information
(information on technology, finance, marketing or other respects) in relation
to
the Company or any member of the Company.
2.1.4
For
the Purpose of this Agreement, any person or associated persons of a corporate
entity include:
(a)
persons serving as managerial personnel in the corporate entity, or as a
partner, or directly or indirectly holding 10% or more of shares in any kinds
of
corporate entities;
(b)
persons holding major occupational rights and interests in the corporate entity,
or any trust or other properties held by such persons or corporate entity as
trustees (or similar fiduciary positions); and
(c)
any
relatives or spouse inhabiting with such persons or those of such person serving
as the directors or managerial personnel of the aforesaid corporate entity
or
parent company or subsidiary, or such spouse’s relatives.
2.2
Exclusion
2.2.1
The
provisions contained herein shall not apply in case of use or disclosure of
Confidential Information for a reasonable performance of its functions and
duties of position.
2.2.2
Nor
shall such provisions apply in case of use or disclosure of Confidential
Information as required by the applicable laws or directives with legally
binding force, under which circumstance the scope of use or disclosure shall
be
limited to such contents as expressly set forth in the applicable laws or
directives with legally binding force, and the Employee shall, prior to such
use
or disclosure, inform the Company of the relevant provisions contained in such
applicable laws or directives with legally binding force so that the Company
can
take appropriate protective measures.
2.3
Non-Compete
Economic Compensation
2.3.1
Where Beijing AirInbox has commenced paying to an employee non-compete economic
compensations at the standard set forth in Paragraph 2.3.3 hereof when such
Employee leaves its job, the Employee shall, within six months upon revocation
or termination of labor relationship with the Company, not hold a position
in
any enterprise or institution (including but not limited to other enterprises
or
institutions engaged in mobile data or mobile value-added businesses, other
enterprises or institutions
operating or running websites, enterprises or institutions rendering various
kinds of services for operation and running of websites as well as enterprises
or institutions associated with operation and running of websites) in
competition with Beijing AirInbox, or make business which is the same as that
of
the Company in which it takes office for itself. The Employee must still
strictly observe all the stipulations contained in Article 2.1 and Article
3
hereof. Otherwise, the Company shall have the right to demand refunding by
the
Employee of the non-compete economic compensations already paid. In the
meantime, the Employee shall as well compensate the Company for its loss of
interests calculated at the rate of interest on a principal amount provided
by a
bank during the same period. The Company may, where it deems necessary, demand
compensation by the Employee of economic losses incurred by the Company
therefrom.
3
2.3.2
Where Beijing AirInbox pays no non-compete economic compensations to an employee
(including the circumstance where the Company is unwilling or deems it
unnecessary to effect such payment) when the Employee leaves its job, the
Company will impose no restrict on such Employee’s holding a position in other
enterprise or institution in the same trade or make business which is the same
as that of the Company in which it takes office for itself following revocation
or termination of labor relationship.
2.3.3
The
12-month average monthly basic wage of an employee prior to its departure from
Beijing AirInbox shall be set as the base number of the standard for calculation
of non-compete economic compensation with the calculation formula being: the
total sum of economic compensation=base number*number of months with
responsibility as required in Paragraph 2.3.1*1/2. The Company shall, within
the
period of term with responsibility as stipulated in Paragraph 2.3.1, pay to
the
Employee non-compete economic compensations on a monthly basis.
Article
3: Other Related Undertakings
3.1
Prohibition
on Talent Hunting
The
Employee agrees not to instigate, induce, encourage or otherwise facilitate
other employees of the Company to terminate the labor employment relationship
with the Company during its term of office with Beijing AirInbox and within
one
year thereafter, except for the actions taken during its term of office with
the
Company for performance of its functions and duties.
3.2
Intellectual
Property
The
Employee acknowledges that, the research, innovation, invention and other
intellectual properties in relation to its functions completed by it during
its
term of office with the Company on the strength of/by using the Company’s
financial resources, materials or sites, whether being developed at present
or
to be developed in the future, including without limitation, trademarks (whether
represented in word, design, or combination thereof), patent rights (whether
or
not having made an application therefor or an application for registration
is
being made at present), software, public or non-public proprietary technologies
as well as other statutory rights shall belong to the Company, and undertakes
to
make best efforts to cooperate with the Company so that the Company can obtain
the entire rights and maintain its lawful rights and interests.
4
3.3
Compensation
for Breach of Contract.
The
Employee acknowledges that, in the event of breach of the Agreement, the Company
will or may suffer irremediable losses or damages. The Employee agrees that,
where it is in breach of the Agreement or in peril of breach of the
Agreement, the Company has the right to hold the Employee liable therefor
correspondingly (including but not limited to the liabilities for breach of
contract, compensation for economic losses, stopping the infringing acts, or
if
the circumstances are serious, being investigated for criminal
liability).
In
the
event that the Employee divulges the Confidential Information possessed, learnt
or known during the term of office with the Company or other secrets relating
to
the Company in violation of provisions contained herein; or transfers, carries,
destroys without authorization all
the
storage devices, storage materials and copies involving the Company’s secrets
such as documents, materials, drawings, tapes, disks, CDs as well as
notebooks,
it
must
refund all such special allowances and commercial insurance premiums as received
by it and pay an additional liquidated damage equivalent to three times of
the
total sum of such special allowances and commercial insurance premiums as
received by it. Where the Company’s losses still cannot be totally covered by
such liquidated damage, the Employee must separately compensate the Company
for
its losses.
Article
4: Provisions on Governing Laws
4.1
Severability
The
validity, legitimacy
and enforceability of the remaining provisions contained herein is not affected
by the nullity of any provision of this Agreement; and such void provision
shall
be replaced by another valid, legitimate and enforceable provision, the effect
of which is to the fullest extent to the original intention of each
Party.
5
4.2 Notice
4.2.1
Notice may be served in person or by courier (including the commercial express
mail services with international reputations), registered mail or public
announcement and the like.
(a)
To
the Company:
Address:
▇▇/▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Postal
Code: 100044
Attention:
Tel:
▇▇▇-▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇▇▇▇▇▇
(b)
To
the Employee:
Address:
Attention:
Tel:
Fax:
4.2.2
A
notice or correspondence shall be deemed to have been served under the following
circumstances:
(a)
if by
courier (including commercial express mail services), on the date when the
addressee signs for receipt;
(b)
if by
registered mail, subject to a lapse of seven (7) days upon production by a
post
office of vouchers.
4.3
Amendment
and Waiver
4.3.1
This Agreement may be amended or modified only subject to each Party’s consent
by entering into written instrument.
4.3.2
No
failure to exercise and no delay in exercising on the part of either Party
any
right, power or privilege hereunder or in connection herewith shall operate
as a
waiver thereof nor shall any single or partial non-exercise of any right, power
or privilege preclude the exercise of any other right, power or privilege later
on.
4.4
Counterparts
This
Agreement may be executed by each Party either in several counterparts or one
counterpart separately, each of which shall be deemed to be an original but
all
of which together shall constitute one and the same agreement.
6
4.5
Effective Date
This
Agreement shall come into force as of the date when it is executed by the
Company’s authorized representative and the Employee.
|
The
Employee (Signature)
|
7