Exhibit 4.50
MOBILE VALUE-ADDED SERVICE COOPERATION AGREEMENT
WITH CHINA UNICOM TELECOMMUNICATIONS CORPORATION
SERIAL NO. CUVAS-V05-A2005-0114
PARTY A: CHINA UNICOM TELECOMMUNICATIONS CORPORATION
PARTY B: SHANGHAI WEILAN COMPUTER COMPANY LTD.
DATE: MARCH 31, 2005
TABLE OF CONTENTS
Preface
Chapter 1 Purpose
Chapter 2 Definitions
Chapter 3 Scope of Cooperation
Chapter 4 Maintenance Sections
Chapter 5 Customer Service Management Interface
Chapter 6 Security of Mobile Value-added Service
Chapter 7 Intellectual Property
Chapter 8 Billing and Settlement
Chapter 9 Withdrawal Mechanism and Liabilities for Breach
Chapter 10 Amendment or Termination
Chapter 11 Confidentiality
Chapter 12 Other Liabilities for Breach
Chapter 13 Force Majeure
Chapter 14 Governing Law and Dispute Resolution
Chapter 15 Miscellaneous
Schedule 1: List of Breaches
Schedule 2: List of Information Concerning Party B's Mobile Value-added Service
Signature page
LIST OF SERVICE EXHIBITS
Uni-Mail
Music Street (10159)
Exhibit 5 Voice Value-added Service (10159)
PREFACE
1. This Cooperation Agreement (this "Agreement") is entered into as of
March 31, 2005 in Beijing, by and between the following parties:
CHINA UNICOM TELECOMMUNICATIONS CORPORATION (hereinafter referred to as the
"Party A"), a corporation established and existing in accordance with the laws
of the People's Republic of China, with registered office at Jia ▇▇.▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, People's Republic of China, its legal
representative is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
SHANGHAI WEILAN COMPUTER COMPANY, LTD. (hereinafter referred to as the "Party
B"), a corporate legal person established and existing under the laws of the
People's Republic of China, with its registered office at 5th ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, its legal representative is Hu Ankai.
2. Scope of Application: This Agreement consists of the body text and
Exhibits. The execution of this Agreement is mandatory for the cooperation
between the parties on mobile value-added services, including the rights that
may be exercised and the obligations that shall be performed by the parties
hereto. Exhibits provide in detail the respective rights and obligations of the
parties according to the classification of services. In addition to the
mandatory execution of the Agreement hereof, the parties hereto shall also
execute Exhibits corresponding to relevant services under cooperation between
the parties:
3. The Agreement, Exhibits and any supplements or amendments thereto shall be
provided by Party A and shall become effective pursuant to the terms and/or
procedures agreed upon between both parties.
4. If the parties hereto intend to increase mobile value-added service (New
VAS) in addition to those set forth in the Exhibits, Party A shall provide
exhibits for the New Value-Added Service, which shall also be Exhibits under
this Agreement.
CHAPTER 1 PURPOSE
WHEREAS:
1. Party A is a telecommunication operator approved by the authority in charge
of information industry under the State Council to provide the general public
nationwide with basic telecom service and value-added telecom service, with its
own telecom infrastructure network, data service platform, service sale system,
and customer base. Party A has the full authority to execute and perform this
Agreement.
2. Party B is a content provider ("CP")/service provider (SP") that lawfully
provides mobile data contents/services, is qualified to operate the cooperation
service under this Agreement, and has obtained the following certifications:
a. Corporate Person Business License (No. 3101142019650)
b. Operation License for Telecom VAS (No. Hu B2-22030086)
c. Other qualification certificates evidencing Party B's qualification
for such VAS to be cooperated with Party A (please specify in relevant
Exhibits);
d. Such certificates of qualifications and/or acceptance of service
testing approved by Party A.
3. Party B has the full authority to execute and perform this Agreement, and
intends to provide mobile content service based on Party A's mobile telecom
network and VAS platform.
4. Party B has signed the "Information Security Guarantee Letter" or other
documents similar in nature, and is willing to assume responsibilities for
information security pursuant to the provisions of the relevant laws.
Therefore, the parties enter into this Agreement on the principle of mutual
benefit and advantage sharing, and for the purpose of developing and enhancing
mobile data services.
CHAPTER 2 DEFINITIONS
Unless specifically defined hereunder or both parties have other written
definitions, the following terms shall have the definitions set forth below.
Other relevant terms that are not explicitly defined hereunder shall be defined
according to PRC laws and regulations or the provisions or rules of relevant
government authorities. To the extent that there is no explicit definition in
such laws or regulations, such terms shall be interpreted according to industry
practice.
2.1 "CP/SP"
"CP" is the abbreviation for "Content Provider." For the purpose of this
Agreement, "CP" shall only refer to the provider of information sources for the
services.
"SP" is the abbreviation for "Services Provider." For the purpose of this
Agreement, "SP" shall refer to a professional provider of telecom and
information services. "SP" can be a network operator or an integrator of
business provided by other network providers and provides integrate services to
its customers.
In this Agreement, "CP/SP" shall include all professional entities willing
to cooperate with Party A, use Party A's mobile telecom network and data service
platform, and provide various mobile VAS to Party A's mobile telecom network
subscribers.
2.2 "SUBSCRIBERS" shall refer to such individuals, corporate persons or other
entities that connect with Party A's mobile telecom network and VAS platform via
mobile terminals or other telecom terminals approved by Party A, and voluntarily
receive mobile VAS provided by Party A and Party B.
2.3 "MOBILE VALUE-ADDED SERVICES, OR MOBILE VAS" shall refer to telecom and
information services based on Party A's mobile telecom network.
2.4 "MOBILE TELECOM NETWORK AND VAS PLATFORM"
For the purpose of this Agreement, "Mobile Telecom Network" refers to
mobile telecom infrastructure facilities provided by Party A. "VAS Platform"
refers to service platform in addition to mobile telecom network, which is
specifically designed for one or more specific VAS, including but not limited to
subscriber interface, CP/SP interface, business management and application
billing functions.
2.5 "SERVICE SUPPORTING SYSTEMS" means subscriber management, billing,
settlement, and accounting systems needed for the normal operation of services.
2.6 "COMMUNICATION CHANNEL" means physical and logical connections within
mobile communication system for the communication between subscribers.
2.7 "PORT" means the interface for the communication connection between data
service platform and mobile telecom network, data service platform and
application server provided by CP/SP, including communication address and
relevant specifications.
2.8 "DATA VOLUME" means the communication volume coming in and out of the data
service platform.
2.9 "TESTING" means the testing on services provided by CP/SP, which may
include network connection test, interface conformity test, and function test,
so as to ensure the service meets the requirements for activation.
2.10 "GRACE PERIOD FOR WITHDRAW" In the event CP/SP services need to be
terminated, such period of time where the CP/SP shall give prior notice to
subscribers in an appropriate manner prior to the termination thereof, but shall
continue its services to subscribers according to the subscriber agreement.
2.11 "EQUIPMENT JUNCTION POINT" means the location of linkage between two
physical or logical equipment.
2.12 "MAINTENANCE INTERFACE" as the whole service system is composed of
different parts, and the responsibility of maintenance also belongs to different
parties, the maintenance interface is to set up the location for different
parties to take responsibility for maintenance.
2.13 "SYSTEM MAINTENANCE" means the daily maintenance and trouble shooting for
the normal operation of systems.
2.14 "GATEWAY" means the equipment that provides the function of protocol
transition and system interconnection.
2.15 "CUSTOMIZE" means the subscribers acknowledge their acceptance of content
services, and voluntarily ask for such services.
2.16 "7X24" means 7 days a week 24 hours a day, regardless of public holidays.
2.17 "COMMUNICATION FEE" means such fees arising from the use of Party A's
network resources by subscribers or the CP/SP; communication fees shall be
collected by Party A from subscribers or the CP/SP.
2.18 "INFORMATION SERVICE FEE" means such fees arising from the use of CP/SP's
content information or application services other than communication fees. In
consideration that Party A provides connection service, customer service,
billing service and fee collection service, the information service fee shall be
divided in certain portions between Party A and Party B.
2.19 "BILLING CYCLE" means the statistic cycle for Party A's billing system on
Party B's Information Service Fee, which shall be one (1) complete calendar
month, from 0:00:00 on the first day of each calendar month until 24:00:00 on
the last day of that month.
2.20 "CORPORATE CODE" refers to "China Unicom Mobile Data Service CP/SP
Corporate Code," which is the sole corporate identification that Party A assigns
to Party B.
2.21 "SP SERVICE SYSTEM" means the online office system established and
maintained by Party A for integration, agreement execution, account
reconciliation, information disclosure, feedback and other daily work.
2.22 "RANKING" means the ranking conducted by Party A according to income
derived from Information Service Fees or business volume of all CP/SP that are
beyond the supporting stage in the mobile VAS. If there is any decimal after the
total number of CP/SP multiplied by a percentage, the round number shall remain,
and the decimal number shall be omitted. With respect to any CP/SP for which the
income of Information Service Fees is unable to be determined due to account
reconciliation, its ranking shall be determined according to Party A's
statistics prior to the reconciliation.
2.23 "BUSINESS SUPPORTING STAGE" means a certain preferential policy whereby
Party A extends to Party B in terms of ranking and withdrawal on certain
services for a period of three complete Billing Cycle after Party B obtains all
the network accession qualifications, and has passed testing of such service,
the purpose of which is to provide Party B with sufficient time to accept
training for the business cooperation with Party A. This period of time shall be
called the Business Supporting Stage. Party A and Party B shall decide whether
to apply for the Business Supporting Stage according to the characteristics of
the mobile VAS, and specify in detail in the Exhibits the rights and obligations
of both parties during the Business Supporting Stage.
2.24 "SERVICE SCREEN" means except for Uni-mail and Music Street, Party A
cancels the display of Party B's service to Subscribers, but continues to
provide customization and billing therefor. Service Screen for Music Street
means temporary shutdown of the service access number; Service Screen for
Uni-mail means while maintaining the customization of Subscribers, the billing
rate shall be set at zero.
2.25 "SERVICE OFFLINE" means Party A's termination of cooperation on Party B's
service section by canceling the customization of Subscribers and terminating
the billing for such services.
2.26 "WITHDRAWAL" means Party A's termination of cooperation with Party B on
certain service, and Party A will not accept Party B's application for
cooperation on such service.
2.27 "SERVICE SECTION" means service classification according to the similarity
of techniques as provided by the administrative specifications of Party A, such
as "Uni-mail Service Section."
2.28 "ITEM" means the minimum unit of Service Section according to Party A's
service management specifications.
2.29 "MINIMUM UNIT SERVICE", means the minimum unit for the cooperation between
Party A and Party B on the mobile VAS as provided by Party A's service
management specifications, hereinafter referred to as the "Service."
CHAPTER 3 SCOPE OF COOPERATION
3.1 Party A shall provide Party B with a paid communication channel and its
network subscriber resources, and provide Party B with paid connection service,
customer service, billing service and fee collection service based on Party A's
customer service, billing and service supporting system.
3.2 Party A shall assign to Party B a Corporate Code to be used on Party A's
billing system, VAS platform and customer service system to identify Party B.
Party A shall ensure the stability of the Corporate Code obtained by Party B,
and agree that the Corporate Code and the corporate name of Party B shall have
the same effect in identification of Party B.
3.3 Party A shall be responsible for the construction and maintenance of the SP
service system for realizing the communication between Party A and Party B on
the cooperation of mobile VAS hereunder. Party A will notify Party B of the user
name and password (which can be modified by Party B) according to the working
process of SP service system. Party B shall log on the SP service system by such
user name and password, and operate according to the instruction of such system,
including the application for cooperation of mobile VAS, amending corporate
information online, obtaining Party A's testing confirmation and other
communications between the parties concerning mobile VAS. Party A shall be
responsible for the normal operation of SP service system, and shall timely
update relevant information in such system. Party B shall register correctly its
name, bank account, contact, customer and other information, and timely update
Part A if there is any change to such information.
3.4 Unless specifically indicated, contract information, publication of
settlement information, data, form, notice and reply generated by the SP system
shall be deemed evidence of the communication between the parties, and shall be
subject to the timing of reaching Party B's SP service system connection point.
Party A may provide appropriate backup and inquiry functions in the SP service
system, but Party A shall not be responsible for maintaining such information.
3.5 Party B shall be responsible for keeping its user name and password to log
on the SP service system, and shall not allow any third party to use the same.
Party B shall be solely responsible for any damages to itself arising from the
disclosure of such information to any third party or to it employees for whom
disclosure is not necessary due to the fault of Party B, and shall indemnify
Party A for any damages to Party A as a result thereof.
3.6 The timing for formal launch of cooperation between the parties shall be
subject to the time when Party A formally activates the billing.
3.7 Party B shall provide subscribers with such mobile value-added services
through Party A's mobile telecom network and data service platform. The type,
description, billing and settlement, and withdrawal of mobile value-added
services shall be provided for in the relevant Exhibits.
3.8 Party B shall submit written application to Party A or submit effective
application in Party A's SP service system, together with documents evidencing
its qualification for relevant services, and obtain Party A's written approval
after testing prior to the addition of any mobile value-added service or the
modification of existing services (such as business scope and price). Upon Party
B's request, Party A shall issue such written confirmation upon testing Party
B's services to the satisfaction of Party A, or making such confirmation in an
appropriate way in the SP service system. If necessary, both parties shall also
execute (or amend) relevant service exhibits.
3.9 Before Party B provides any mobile value-added services to the Subscribers,
Party B shall make notice to the Subscribers about the content, method and
billing of such services, and other information that the Subscribers need to
know for their acceptance of services and/or payment of Information Service Fee.
Party B shall start to provide such services only to the extent that there is
evidence showing that it has made the notice mentioned above and has obtained
the confirmation and/or customization from Subscribers acknowledging their
acceptance of mobile value-added services. Without Party A's prior consent in
writing, Party B shall not request Subscribers to accept such customization and
collect corresponding fees from Subscribers in any way to the effect that
"subscribers' acquiescence will be deemed as acceptance" or "customization can
only be cancelled by making a phone call or sending a short message, otherwise
it shall be deemed as accepted," nor impose any unnecessary burdens to
Subscribers as a result of such issues.
3.10 If Party B is unable to continue its VAS due to poor operations or other
reasons on its own, Party B shall be directly responsible for providing
sufficient explanation to subscribers and make preparations for the after
effects, and shall provide 3 months' prior written notice to Party A. Party A
shall timely terminate collection of Party B's information service fee, and
assist Party B to make such explanation.
3.11 During the term of this Agreement, Party B shall upon Party A's request
provide Party A with reports on the Subscriber development, Subscriber category,
Subscriber habit, business prospect forecast, and Subscriber information
necessary for the administration of such services, ensure timely upgrade of
Party A's Subscriber database.
3.12 Party B agrees to strictly observe in its mobile value-added services such
management measures, service quality standards, customer service standards and
other relevant documentations that Party A has already stipulated or will
stipulate from time to time. Party A will provide Party B for observance copies
of such management measures, service quality standards and/or service standards
prior to the formal issuance thereof.
3.13 Party A and Party B may negotiate for the use of the name, trademark,
service ▇▇▇▇ or logo of Party A or any service in such services jointly provided
by the parties and in the promotion of mobile value-added services, provided
however, without Party A's request or confirmation, Party B shall not use Party
A's name, trademark, service ▇▇▇▇ or logo in the content sent to Subscribers
through SMS or other services, to the effect that Subscribers
misunderstand such content as being provided Party A or jointly provided by
Party A and Party B.
3.14 Party B shall use Party A's name, trademark, service ▇▇▇▇, logo and other
relevant materials of Party A in its separate promotion of mobile value-added
services only to the extent that Party A so requires or such use has been
approved by Party A in writing. Party B further warrants that under no
circumstance shall Party B infringe upon the trademark rights or other
industrial property rights of Party A.
3.15 Party B shall not promote in its content service and/or other services
competitors of Party A that have identical and/or similar business scope as
Party A, otherwise, it shall be deemed as a material breach hereof.
3.16 Party A and Party B may separately or jointly promote in various ways
mobile value-added services. If necessary, both parties shall separately execute
an agreement on the joint promotion of mobile VAS.
3.17 Party B shall be solely liable for any consequences arising from mobile
value-added services in any form provided by any third party provide to
Subscribers through Party B's maintenance interface, Party A shall take no
responsibility to Subscribers or such third party for any consequences thereof.
3.18 Unless otherwise provided hereunder, Party B agrees to accept future
modification to services and billing methods that Party A will propose in light
of the development of relevant services, and to assist Party A with such
modification.
CHAPTER 4 MAINTENANCE SECTIONS
4.1 During the term of this Agreement, each Party shall be responsible for the
maintenance of its sections defined by the conjunction point of equipment. The
diagram of maintenance sections is as follows:
(DIAGRAM OF MAINTENANCE SECTIONS)
4.2 Party A's Responsibilities
4.2.1 Party A shall contribute software and hardware required by its mobile
communication network and data service platform.
4.2.2 Party A shall cooperate with Party B to connect Party B's server to Party
A's gateway or server.
4.2.3 Party A shall provide Party B with the mobile value-added service
technical protocol and interface specifications.
4.2.4 Party A shall maintain the normal operation of the network communication
that is indicated in the diagram above to be responsible by Party A, and assume
responsibility for network problems not caused by Party B. Party A has the right
to restrict the transmission of any excessive data or information that damages
the safety of Party A's network operation.
4.2.5 Party A has the right to control and adjust the data volume and ports at
the section responsible by Party A, and notify Party B of the result thereof.
4.2.6 Party A has the right to conduct necessary testing and data statistics on
the service provided by Party B during the operation of such service, and to
require Party B to make amendments based on the result of such testing according
to Party A's mobile VAS management regulations.
4.2.7 Party A shall provide statistics for the information transmission volume
through the telecommunications channel used by Party B, and ensure the
reliability and timeliness of such statistics data.
4.2.8 Party A shall notify Party B in advance of any transmission interruption
resulting from testing, maintenance or other foreseeable reasons, including the
reason, time and period for such transmission interruption.
4.2.9 Party A shall immediately notify Party B within a reasonable time of any
transmission interruption caused by unforeseeable reasons such as problems with
the network gateway or other network problems.
4.3 Party B's Responsibilities
4.3.1 Party B shall be responsible for the construction and maintenance of its
own system, including all hardware equipment, system testing, activation,
maintenance, daily service management, market promotion and expenses relating to
the service hereunder.
4.3.2 Party B shall be responsible for the connection between Party B's system
and Party A's gateways and servers, and the expenses for the application, lease
and maintenance of relevant telecommunication lines.
4.3.3 Party B shall ensure the commissioning, activation and maintenance of
system shall not be conducted during regular business hours of Party A. Work
having an material impact on subscribers shall be conducted at midnight to
minimize the impact on subscribers' use of
mobile VAS. Party B shall ensure the testing and activation of its system will
not affect the normal operation of Party A's network and assumes liabilities for
any damage to Party A's network system arising therefrom.
4.3.4 Party B shall make prior notice to Party A in writing or in another
appropriate manner (such as by SP service system) for the commissioning,
activation and modification of its system; shall notify subscribers of the same
through effective means such as mail, advertisement or short messages upon Party
A's confirmation thereof; and shall reduce the impact on subscribers to the
minimum degree.
4.3.5 Party B shall observe Party A's emergence adjustment to the volume of
short messages so as to ensure the normal operation of various value-added
services.
4.3.6 Party B undertakes not to create overload transmission volume that would
harm the network safety when transmitting messages to Party A's SMS service
platform.
4.3.7 Party B shall provide 7 days a week and 24 hours a day system maintenance.
CHAPTER 5 CUSTOMER SERVICE MANAGEMENT INTERFACE
5.1 Both parties shall establish 7X24 hours hot-line service center and
customer service Email account.
5.2 Party A's customer complaint or inquiry center (1001 customer service
hot-line) shall direct Party B to solutions of issues that are not the
responsibility of Party A. Party B shall send an initial reply to Party A or
directly respond to Subscribers within one (1) hour thereafter, and shall be
responsible for the final explanation or solution of such issues.
5.3 Party B shall not require Subscribers to directly contact with Party A if
the inquires or complaints received are the responsibility of Party A. If Party
B believes that the inquires or complaints received are the responsibility of
Party A, Party B's customer service personnel or customer service system shall
assist Party A to analyze and resolve such inquires or complaints, and contact
Party A within one (1) hour after receipt thereof, and direct the same to Party
A upon Party A's confirmation.
5.4 If it can not determined which Party should be responsible for the
inquiries or complaints it received, such Party shall contact the other Party
within one (1) hour after the receipt thereof to find out the Party to be
responsible, and help the subscriber resolve the problem as soon as possible.
Neither Party shall try to evade from its responsibilities thereto.
5.5 If any customer complaint is due to the fact that service quality is
inferior than that promised in advertisement, the Party who made such promise
shall be responsible in responding and resolving the complaint, and the other
Party shall give any necessary cooperation thereto.
5.6 Party B shall provide a detailed description of services that it intends to
provide Subscribers in the application for the activation of services according
to the type of service under cooperation, and, to the extent that both parties
deem it necessary, such description shall be listed in relevant Exhibits.
5.7 Party B shall provide Party A's customer service staff with the network
interface and authorization for service inquiries and withdrawal.
CHAPTER 6 SECURITY OF MOBILE VALUE-ADDED SERVICE
6.1 Party B shall observe the State laws, regulations and policies concerning
telecommunication and Internet content, ensure that the content of its
information services is not in violation of relevant State laws, regulations and
policies, and not send through Party A's system such illegal information listed
in the "Information Security Guarantee Letter ." Party B's violation of the
preceding sentence shall be deemed a material breach of this Agreement. If Party
A's business operation suffers any losses due to Party B's violation hereof,
Party B shall compensate Party A for its losses. If Party A suffers any negative
impact due to Party B's violation hereof, Party B shall publicly acknowledge its
liabilities thereto, and make public apology to Party A.
6.2 Party B shall be responsible to solve all disputes in connection with the
security and legality of the information it provides.
6.3 Party B shall ensure that the services it provides have no existing or
potential material hidden defect that will be exploited by individual
Subscribers to cause damage to Party A's mobile telecom network, data service
platform or the profit of other Subscribers.
CHAPTER 7 INTELLECTUAL PROPERTY
7.1 Issues relating to copyrights, trade marks, patents and other intellectual
property rights shall be in compliance with relevant State laws. Party B shall,
in accordance with relevant State laws and regulations, enter into appropriate
authorization/license agreements with the intellectual property rights
owner/patentee and or/agent, to ensure that mobile value-added service provided
by Party B will not infringe on the legal interests of the owner/patentee of the
intellectual property rights, and shall, upon Party A's request, present such
authorization/license documents to Party A. Party A shall not be liable for any
intellectual property right disputes between Party B and any third parties.
7.2 Party B shall be solely responsible to solve all the disputes in connection
with the security and legality of the information it provided, Party B further
undertakes that it will be liable for compensation with respect to any and all
lawsuit, claims, administrative punishment, damages and losses arising from the
violation of the undertakings and warrants above mentioned.
7.3 Party B warrants that, in the mobile value-added services, in particular
the U-map services, Party B shall observe the State regulations concerning the
protection of fundamental rights of citizens (including without limitation the
right of privacy) in connection with mobile value-added services. Party B shall,
in its promotion and supply of U-map location services, fully notify the
subscribers of the nature, application scope and relevant laws and regulations
in connection with such services. In addition, Party B shall activate U-map
location service to a subscriber only to the extent that the subscriber has
fully and completely acknowledged and consented to Party B's service (if
necessary, Party B shall furnish a written certificate evidencing that the
subscriber has fully and completely acknowledged and consented to such service).
Party B shall not use the location information disclosed by the subscriber in
connection with the U-map services (whether single, multiple or integrated) for
purposes other than what the subscriber has originally customized. With respect
to U-map services supplied to special industries, both parties shall strictly
observe relevant State regulations, whether such regulations have been
promulgated or implemented prior to/at the execution of this Agreement or
relevant Exhibits.
7.4 Party A may design, produce and register trademarks, service marks or logos
for its mobile value-added services, and use such trademarks, service marks or
logos for marketing promotion. If both parties are jointly engaged in marketing
promotions (hereinafter "Joint Promotion"), both parties shall agree on the
details of the Joint Promotion in relevant service Exhibits, or enter into
separate cooperation agreements concerning the Joint Promotion according to
actual needs. The parties hereby agree that, the purpose of Joint Promotion is
to better operate such mobile value-added service. The Joint Promotion or any
activities related thereto shall not infringe upon the trademark rights,
intellectual property rights or industrial property rights either of Party A or
Party B and/or any third parties. If any party hereto infringes upon the
trademark rights, intellectual property rights or industrial property rights of
any other third party through its unilateral acts, the infringing party shall be
liable for all the consequences of infringement, compensate the non-infringing
party for any economic loss that they may suffer, and eliminate the negative
social impact upon the non-infringing party that may arise therefrom.
CHAPTER 8 BILLING AND SETTLEMENT
8.1 Billing
8.1.1 Communication Fee shall be set by Party A, and Information Service Fee
shall be set by Party B upon Party A's examination and approval. Any amendment
to the Information Service Fee (including the amendment to the manner of fee
collection) shall be implemented only upon Party A's approval.
8.1.2 Party B may set the information service fee on the basis of frequency,
duration and monthly payment for subscribers to select from. Party B shall
publish on its website, expressly indicate on the customization agreement,
display on mobile phone interface or by sending short message to inform the
subscribers of the manner of collection of Information Service Fee, standard
payment time and customer service phone number.
8.2 Settlement
8.2.1 Party A shall be entitled to various communication fees arising from the
use of Party A's communication network by subscribers or Party B.
8.2.2 Proceeds of information service fees shall be distributed between Party A
and Party B in certain percentage after deduction of 8% non performing debt
reserve and other expenses acknowledged by the parties. Party A's share in the
proceeds is based on the following services it provides: mobile communication
network subscriber resources, relevant service platform, service testing and
quality supervision, unified customer service and business promotion, collection
of information service fees, and/or billing services.
8.2.3 The distribution percentage of information service fee, billing and
settlement of specific mobile value-added service shall be separately provided
in the relevant Exhibit of such service.
8.2.4 Settlement cycle: Party A and Party B shall settle the account once each
month. The settlement cycle shall constitute one (1) complete calendar month.
8.2.5 Settlement procedure:
(1) Subscriber uses value-added service in the first month;
(2) Party A shall send the settlement information (including the amount of
communication fees and information service fees) to Party B through the SP
service system within 10 days after the beginning of the following month.
(3) Party B may reconcile the account with Party A on the information service
fee receivables prior to the 15th day of the following month, and shall submit
the reconciliation and invoice affixed with its seal to the contact person of
Party A no later than the 25th day of the following month;
(3) Party A shall make payment to the bank account designed by Party B no
later than the 28th day of the third month;
(4) If Party B fails to submit the reconciliation and invoice affixed with its
seal as required by Party A prior to the 25th day of the following month
immediately after the occurrence of respective service due to Party B's reason
or the process of reconciliation, Party A will suspend its payment for Party B's
share of revenue until the end of next quarter upon receipt of Party B's
reconciliation and invoice. Party A's suspension of payment pursuant to this
clause shall not constitute a breach or delayed payment under this Agreement,
and Party A shall not be liable for default as a result thereof.
(5) If Party B fails to submit the reconciliation to Party A within one (1)
year (commencing from the 15th day of the following month immediately after the
occurrence of respective service), it shall be deemed as Party B's waiver of its
rights to such payment, and Party A shall be therefore released from any
obligations to make such payment to Party B.
(6) During the settlement process, each Party hereto shall at the request of
the other Party submit formal invoice to the other Party.
8.2.6 Both parties shall reconcile the account on the aggregate amount of
communication fee and information service fee. If the discrepancy of the billing
between Party A's billing and that of Party is lower than ( < or = ) 5%, the
billing shall be based on Party A's data, if the discrepancy is higher than
( > ) 5%, both parties shall verify the reasons for such discrepancy and timely
find out reasonable solutions thereto. Any delay in Party A's payment due to
reconciliation of an account shall not be deemed a violation of Party A's
obligation in timely payment.
8.2.7 The actual amount that should be paid to Party B ("Settled Information
Service Fee") shall be determined by Party A according to the amount payable to
Party B based on the
distribution percentage of the parties in the services, after adding (or
deducting) other fees to be paid (or received) by Party B.
8.2.8 If after reconciliation the amount of Settled Information Service is
negative, Party B shall make up the amount to Party A. The cycle and procedure
for Party B's payment shall be the same as Party A's settlement cycle and
settlement procedure hereunder. After payment, Party B shall timely obtain a
formal invoice at Party A's office.
8.2.9 Party B shall timely update its information (such as bank account
information) in connection with the payment recorded in the SP service system.
If due to Party B's failure to timely update its information, Party A's payment
is rejected by the bank, or Party A is otherwise prevented to make timely
payment, Party A shall suspend such payment. The period for such suspension
shall be between the date of Party A's awareness of the fact that it is unable
to make timely payment until the most recent payment or June or December when
both parties settle the accounts. Party A shall not be liable for default due to
failure in timely payment.
8.2.10 If Party B changes it corporate name, it shall timely (through the SP
service system or other appropriate manner) notify Party A of the same. All the
amounts that should be paid by Party A to Party B after such change to Party B's
corporate name shall be remitted to such bank account with the changed corporate
name of Party B, regardless whether or not such payment accrued after the change
of Party B's corporate name. If Party A is unable to make timely payment due to
Party B's failure in the handling of formalities for the change of its corporate
name, it shall be dealt with in accordance with Article 8.2.9 hereof.
8.2.11 If this Agreement is terminated due to Party B's application for a
withdrawal mechanism or otherwise provided hereunder, both parties shall settle
the information service fees accrued prior to the termination. The settlement
method, cycle and procedure shall be determined according to Article 8.3 hereof,
together with the provisions under the withdrawal mechanism relating to the
deduction of information service fees and liquidated damages as a result of
breach.
8.3 Fee Collection
8.3.1 Information service fees shall be charged and collected by Party A. Party
B shall not collect information service fees from the subscribers. Communication
fees shall be charged by Party A and collected from the subscribers or Party B.
8.3.2 Prior to the collection of information service fees on behalf of Party B,
Party A shall review in detail the fee collection items and the summary thereof.
Party B shall provide active support to Party A in this respect. The key
contents to be reviewed shall include, verifying whether the contents provided
by Party B are in violation of the provisions of Article 57 and Article 58 of
the "PRC Telecommunication Regulations" and other relevant laws and policies.
8.3.3 Prior to Party A's collection of information service fees on behalf of
Party B, Party B shall provide relevant documents evidencing that the subscriber
is knowingly and willingly using such service, and the fees to be collected
shall accrue at the time of actual use by such subscriber (except for monthly
fees). Both parties shall keep the record of subscriber customization and use of
service for more than 5 months.
8.3.4 The invoice issued by Party A to subscribers shall explicitly indicate
"Fee Collection" and the amount thereof for the portion of fees collected on
behalf of Party B. Party A shall provide subscribers with reasonable and
effective method to inquire about Party B's name, the types of services for fee
collection and the specific amount thereof. If the subscribers require billing
records for such fee collection, both parties shall provide such records to
subscribers without charge.
8.3.5 If the subscribers refuse to pay information service fees for any
objection thereto, and Party A cannot prove that the amount to be collected is
correct at the time of such dispute, Party A shall only collect the portion of
fees other than that under dispute, and timely notify Party B of the case. Party
B shall, in addition to the payment of communication fees arising from its use
of Party A's mobile communication network, deduct the portion of information
service fees at dispute with the subscribers from its share of distribution.
Afterwards, Party B shall be responsible to settle the dispute with subscribers.
If such dispute is resolved, Party B shall notify the subscribers to pay such
amount of information service fee, which shall be paid by Party A to Party B in
the following settlement cycle at Party B's share of distribution. If the
dispute cannot be resolved, Party B shall not have the right to claim its share
in the distribution of such portion of information service fees.
8.3.6 If there is any dispute with any subscriber on a pre-paid basis, and both
parties cannot prove that the amount to be collected is correct within 15 days
thereafter, Party A shall temporarily refund to such subscriber, and deduct the
portion of information service at dispute from Party B's share of distribution
in the next round of settlement cycle. Afterwards, Party B shall be responsible
to settle the dispute with the subscriber, and handle relevant issues in
accordance with dispute resolution provisions in Article [] hereof.
8.3.7 During the process of dispute resolution, both parties shall not suspend
or terminate services to such subscriber other than those at dispute.
CHAPTER 9 WITHDRAWAL MECHANISM AND LIABILITIES FOR BREACH
9.1 Both parties agree to review the development of mobile VAS in terms of
service testing, service development and breach hereunder, and to apply an
appropriate withdrawal mechanism according to the result of such review, which
means both parties will amend the terms and conditions for such cooperation,
terminate the cooperation in respect of certain item or service, or terminate
this Agreement.
9.2 Withdrawal mechanism based on service testing means that with respect to
Party B applying for certain services, if Party B for any reason of its own
fails to pass the testing required by Party A for 3 times after the date
thereof, Party B shall automatically terminate such service. If there is no
other service that has passed the testing or is still under testing within the
category of services which such service belongs to, the Exhibit relating to such
service category shall be automatically terminated. Party A will not accept an
application from Party B for such service for a 6 month period.
9.3 Withdrawal Mechanism Based on Service Development
9.3.1 Party A shall conduct a service ranking once a month for certain mobile
VAS (excluding three complete billing cycle for newly added service on certain
items), and a
quarterly ranking based on the aggregate scores for the three ranks held in the
current quarter, and shall implement the withdrawal mechanism accordingly. The
process for withdraw shall be: in the first month of quarter n+1 a ranking shall
be held for the performance of each item in the quarter n. The withdrawal
mechanism shall apply to service rank at the last five in each quarter, that is,
at 24:00:00 of the last day in the first month of quarter n+1, Party A shall
have such services offline, and will not accept application from Party B for
such service with a 6 month period.
9.3.2 Party shall conduct a review on certain mobile VAS categories (except for
such service within a supporting period) in each quarter. The review shall be
based on the service ranking or performance of service targets. The process of
withdrawal shall be: in the first month of quarter n+1 a review shall be held on
the performance of CP/SP beyond the service supporting period in the quarter n.
The withdraw mechanism shall apply to CP/SP ranking at the last 10% or failing
to reach the agreed target in such review, that is, at 24:00:00 of the last day
in the first month of quarter n+1, Party A shall terminate cooperation with the
CP/SP on such service category, and will not accept application from Party B for
such service category for a 6 month period.
9.3.3 The ranking or review shall be mainly based on the proceeds of
information service fees, with reference to other targets of service. If no
specific provisions are made under relevant Exhibits, it shall be deemed that
such ranking or review should be based on the proceeds of information service
fees.
9.4 Withdrawal Mechanism Based on Breach
9.4.1 "Withdrawal Mechanism Based on Breach" means that during the term of this
Agreement, if Party B is in violation of the provisions of this Agreement,
Exhibits or Party A's service management rules, or has any defect in its service
provided to the subscribers (hereinafter referred to as "Breach"), both parties
shall adjust their rights and obligations hereunder accordingly, or terminate
this Agreement. If the withdrawal mechanism based on breach is adopted, Party A
shall have the right to terminate this Agreement or Exhibit hereto in its sole
discretion, and shall not be liable for any breach or early termination hereof.
9.4.2 Both parties define the Breach into three classes (Class A, B, C),
specific definition of Breach is set forth in Schedule 1 hereto), and each class
of Breach shall receive corresponding sanctions. Both parties may also make
special provisions in Exhibits according to the characteristics of services.
9.4.3 Sanctions against Breach:
(1) Sanctions against Class A Breach: There will be a 30-day rectification
period after Party A has sent the notice of Breach to Party B, during which
period Party A shall screen such services in breach and withhold its acceptance
of Party B's application for new services under the service category thereof.
After expiration of the rectification period, if the result of rectification is
satisfactory, (Party A) will cancel the screen and restore acceptance of new
applications; if the result of rectification is unsatisfactory, the service in
Breach shall be offline, and Party B shall continue with its rectification until
the result thereof is satisfactory and Party A will restore its acceptance of
new applications; the information service fee proceeds from the service in
breach shall be deducted by two times at the amount thereof for compensation to
subscribers, and a liquidated damages shall be paid at 10% of the aggregate
amount of such information service fee (including information service fee
proceeds from the service in breach) arising from the billing cycle during which
such Breach occurs (if such amount is less than RMB 5,000, it shall be collected
at RMB 5,000); and such Breach shall be notified to Party A's branch companies
and announced on the SP service system.
(2) Sanctions against Class B Breach: termination of cooperation on the
service in breach, the information service fee proceeds from the service in
breach shall be deducted by two times the amount thereof for compensation to
subscribers, and liquidated damages shall be collected at the total amount of
such information service fees (including information service fee proceeds from
the service in breach) arising from the billing cycle during which such Breach
occurs (if such amount is less than RMB 10,000, it shall be collected at RMB
10,000); and such Breach shall be notified to Party A's branch companies and
announced on the SP service system.
9.5 Withdrawal mechanism shall not apply to the service supporting period
(except for withdrawal mechanism based on breach).
9.6 Unless otherwise expressly provided, the termination of one or more
services/items according to the withdrawal mechanism provided by the body text
hereof or the Exhibits shall not impact other services currently engaged by
Party B, nor such services that Party B has applied for but pending activation.
9.7 If Party B is in material breach of this Agreement or material violation
of the service standards concerning service quality and customer service that
have been stipulated by Party A, Party A shall, in addition to applying the
withdrawal mechanism for terminating the cooperation with Party B in the
respective service, reserve the right to terminate other service cooperation for
which Party B is not in breach, that is, to terminate other Exhibits or this
Agreement in its entirety.
9.8 If Party A applies the withdraw mechanism, it shall make appropriate
notice (such as through the SP service system) to Party B, and notify Party B of
the consequence on their cooperation. For information service fee that has not
yet been settled, Article 8.2.11 shall apply.
CHAPTER 10 AMENDMENT OR TERMINATION
10.1 During the term of this Agreement, relevant business management rules and
relevant customer management rules stipulated by Party A for mobile value-added
services shall be incorporated as supplemental provisions hereof. If there is
any conflict between the provisions of this Agreement and the management rules
aforesaid, the management rules shall prevail (except for provisions concerning
sanctions against breach), unless both parties agree to apply this Agreement or
to execute separate agreement on such issues in conflict.
10.2 If any Party hereto intends to amend or revise this Agreement, it shall
send 15 days prior written notice to the other Party. Both parties shall
negotiate and agree on the written form amendment or modification of this
Agreement.
10.3 Unless expressly provided hereunder, during the performance of this
Agreement, neither Party shall suspend, terminate or cancel this Agreement
without written consent of the other Party.
10.4 In the event that any Party hereto is unable to continue its operation or
the mobile value-added service cooperation hereunder due to the other Party's
failure in performing its obligations and responsibilities hereunder, or
material violation of the provisions of this Agreement, it shall be deemed a
unilateral termination of this Agreement by the breaching Party, and the
non-breaching Party shall have the right to claim for compensation from the
breaching Party for the economic losses caused by such breach and terminate this
Agreement.
10.5 If both parties terminate all the cooperation hereunder due to
application of withdrawal mechanism provided hereunder, this Agreement shall be
automatically terminated.
10.6 Amendment or termination hereof as a result of Party B's qualification
for cooperation. If Party B has any of the following behaviors, this Agreement
shall be automatically terminated:
(1) transfer service number, trunk line, and other resources that Party B has
obtained from Party A without Party A's approval;
(2) operate business beyond the geographical area and business scope provided
under its qualification license;
(3) provide content and category of services requiring qualification
certificate without obtaining such qualification certificate issued by competent
authorities of the State;
(4) provide false copyright and/or qualification certificate;
(5) engage in other unauthorized services or provide content in violation of
the requirements of relevant government authorities or the agreement between the
parties hereto.
10.7 During the term of this Agreement, if any event involving corporate
nature, qualification and civil capacity occurs on the part of Party B,
including without limitation a split, merger, dissolution, liquidation or
bankruptcy, Party B shall provide prompt notice to Party A, and shall observe
provisions hereunder concerning the grace period for withdrawal. If Party B is
no longer qualified for mobile VAS hereunder due to dissolution, liquidation or
bankruptcy, this Agreement shall be terminated accordingly. If there is any
split or merger on the part of Party B, this Agreement shall be terminated
accordingly, and the successor company (or other entity) of Party B's mobile VAS
hereunder shall reapply to Party A for the activation of such service and timely
amend Party B's corporate code and other information in Party A's service system
or the SP service system.
10.8 If there is any change to Party B's corporate name, Party B shall timely
handle formalities for the change of its corporate name at the authorities for
industry and commerce and authorities in charge of the information industry and
receive a valid entity qualification certificate and business qualification
certificate.
10.9 If Party B intends to transfer this Agreement to any third party, such
third party shall fully enjoy all the rights hereunder previously enjoyed by
Party B, and shall perform all the obligations hereunder previously performed by
Party B. Party A and Party B shall thereafter terminate this Agreement, and
Party A shall separately execute an agreement with the third party.
CHAPTER 11 CONFIDENTIALITY
11.1 For the purpose of this Agreement, "Confidential Information" means
business secrets (including financial secrets), technical secrets, know-how
and/or other confidential information and materials that one Party ("Receiving
Party") obtains or learns from the other Party ("Disclosing Party"), or jointly
developed by both parties through the performance of this Agreement, whether
such information or materials is in any form or embedded in any media, or the
Disclosing Party has indicated its confidentiality in oral, graphic or written
form at the time of such disclosure.
11.2 During the term of this Agreement and five years thereafter, neither
Party shall disclose, reveal or provide any Confidential Information to any
third party.
11.3 Each Party shall take appropriate measures to keep confidential of the
Confidential Information provided by the other Party, using the same degree of
care as it uses to protect its own Confidential Information. Neither Party shall
use Confidential Information for purposes other than that related to the
cooperation hereunder.
11.4 Each of the parties warrants that it shall only disclose the Confidential
Information to its personnel in charge and employees engaged in the services
contemplated hereunder. Prior to disclosure, it shall notify to such personnel
the confidential nature of the Confidential Information and their obligations
thereto and shall certify to the other party that such personnel are subject to
the confidentiality obligations hereunder.
11.5 If necessary, the Receiving Party shall at the instruction of the
Disclosing Party return all documents or other materials containing Confidential
Information, or destroy the same as required.
11.6 The provisions set forth above shall not apply to the following
circumstances:
(1) The Receiving Party already legally owns the Confidential Information on
or prior to the execution of this Agreement;
(2) The Confidential Information is available to the general public prior to
disclosure to the Receiving Party;
(3) The Receiving Party has obtained Confidential Information from a third
party which is not subject to confidentiality or non-disclosure obligations;
(4) Confidential Information is or becomes available to the public other than
by breach of this Agreement;
(5) Confidential Information is developed independently by the Receiving
Party or its affiliate or associate companies without any benefit from the
information obtained from the Disclosing Party or its affiliate or associate
companies;
(6) The Receiving Party discloses Confidential Information in response to a
order of court or as required by law or government authorities (by way of oral
inquiry, interrogation, request
for materials or documents, subpoena, civil or criminal investigations or other
legal proceedings), provided the Receiving Party shall promptly notify the
Disclosing Party at such time of disclosure and provide an adequate explanation
for the disclosure.
11.4 Both parties shall keep confidential the content of this Agreement.
CHAPTER 12 OTHER LIABILITIES FOR BREACH
12.1 Both parties shall strictly observe the provisions of this Agreement. If
any Party suffers damage or the cooperation hereunder is unable to proceed due
to the failure of the other Party to perform its obligations, warranties or
undertakings hereunder, or the violation of its representations hereunder, then
the other Party shall have breached this Agreement.
12.2 If any Party's breach causes negative social impact or economic loss to
the other Party, the Party not in breach shall have the right to hold the
breaching Party responsible for such breach, request the breaching Party to
eliminate such impact, make appropriate compensation, and shall have the right
to terminate this Agreement.
12.3 In addition to liabilities for breach provided hereunder, each Party
hereto shall also assume liabilities for breaches arising from the application
of withdrawal mechanism and/or service management rules.
CHAPTER 13 FORCE MAJEURE
13.1 "Force Majeure" means all the events that cannot be controlled or
foreseen, nor can such events be avoided by the parties hereto, which prevent
any Party to perform part or all of this Agreement. These events shall only
include: earthquakes, landslides, collapses, floods, typhoons, abnormal weather,
fire, explosion, accident, war, riot, insurgence, mutiny, social upheaval or
violence, terrorism, sabotage, or any other similar incidents.
13.2 In the event that any Party hereto is affected by a Force Majeure event
and is unable to perform its obligations hereunder, such Party shall not be held
responsible for the other Party's losses arising therefrom.
13.3 The Party affected by a Force Majeure event shall promptly inform the
other Party of such occurrence in writing and within 15 days thereafter send a
valid certificate issued by the relevant government authority explaining the
detail of such event and the reason for the failure or delay to perform all or
any part of this Agreement. Both parties shall negotiate whether to continue to
perform or terminate this Agreement according to the degree of impact on the
performance hereof caused by such event.
CHAPTER 14 GOVERNING LAW AND DISPUTE RESOLUTION
14.1 The execution, validity, performance and interpretation of this Agreement
shall be governed by the laws and regulations of the People's Republic of China.
14.2 Any disputes arising from or in connection with this Agreement shall be
settled through amicable consultations between the parties in the spirit of
cooperation. If the dispute can not be settled through consultations, such
dispute shall be submitted to the Beijing Arbitration Commission for arbitration
in accordance with the arbitration rules of the
Commission. The arbitration award is final and binding on both parties. The
arbitration shall be conducted in Chinese.
CHAPTER 15 MISCELLANEOUS
15.1 Transferability. Upon Party A's consent, Party B may transfer all or part
of its rights or obligations hereunder to a fully capable and/or qualified third
party. Party B's transfer shall be subject to the provisions hereunder
concerning qualification, billing and settlement, and termination of this
Agreement.
15.2 This Agreement shall constitute a contractual relationship only between
the parties hereto. Any provisions hereof shall not be construed as: (a)
establishing a partnership or any relationship of joint liability between the
parties hereto; (b) making any Party to be an agent of the other Party (except
with prior written approval from the other Party); (c) authorizing any Party to
incur expenses or any other obligations to the other Party (except with prior
written approval from the other Party).
15.3 Any failure or delay in the exercise of certain rights hereunder does not
constitute a waiver of such right; any complete or partial exercise of certain
rights does not preclude further exercise of such right in the future.
15.4 The invalidity of any provision hereof does not affect the validity of
the remaining provisions of this Agreement.
15.5 This Agreement shall become effective as of March 31, 2005. This
Agreement shall expire on March 31, 2006, unless terminated according to the
terms hereof. On the expiration hereof, Party A may examine Party B's capacity
and qualifications in performing this Agreement, and, to the extent that Party A
believes that Party B has the capability to perform this Agreement and that
Party B is qualified for the continued performance hereof, this Agreement shall
be automatically renewed, and each renewed term hereof shall be one (1) year.
15.6 Upon execution of the supplemental Exhibit affixed with the seal of Party
A's VAS department, and signed by Party B's authorized representative and
affixed with its official seal, such Exhibit shall become effective and shall
constitute an integral part of this Agreement. Exhibits shall expire at the
earlier of (i) the expiration of this Agreement, or (ii) upon the date of
satisfaction of the conditions for termination provided under this Agreement or
its Exhibits.
15.7 This Agreement and Exhibits hereto shall be executed in two originals.
Each of Party A and Party B shall hold one thereof, which are of equal legal
effect.
SCHEDULE 1
LIST OF BREACHES
This Schedule is one of the schedules attached to the Mobile Value-added Service
Cooperation Agreement ("Agreement") with China Unicom (No. CUVAS-V05-A2005-0114)
signed between China Unicom Limited("Party A') and Shanghai Weilan Computer
Company Ltd. ("Party B"), which is an integral part of the Agreement.
This Schedule specifies the breaching categories, breaching acts and breaching
class, which are referenced in "Withdrawal Mechanism Based on Breach" described
in Article 9.4 of the Agreement. Party A and Party B shall apply such
categories/acts/classes while cooperating with each other in carrying out
various value-added services.
In this Schedule, the titles contained in the column of "Breaching Categories"
are added for the convenience of reading only and shall not constitute notes or
explanations to "Breaching Acts."
Unless otherwise specified in the service exhibits, acts listed in the column of
"Breaching Acts" cover all breaches that might arise while carrying out mobile
value-added services provided, that, some breaching acts are not applicable to
all kinds of mobile value-added services due to special reasons in terms of
technology or business character.
"Breaching Classes" is divided in to Class A, B and C, which correspond to the
three methods for handling breaches set forth in this Agreement. Such three
classes are basically divided on the basis of severity and (possible)
losses/adverse effects to Party A or its subscribers. If no specific class, but
only a wider grade (such as A-B, B-C or A-C) has been identified for a type of
breaching act, then Party A may select a suitable method of resolution based on
the nature and effects of the act, and the loss it has caused.
In addition to this Schedule, Party A may also apply services management
procedures developed internally as agreed in this Agreement, provided, that,
such procedures set forth the breaching acts and applicable method of resolution
not otherwise specified in this Schedule. If such procedures conflict with this
Schedule, this Schedule shall govern.
LIST OF BREACHES
------------------------------------------------------------------------------------------------------------------
Breaching
Categories Breaching Acts Class
------------------------------------------------------------------------------------------------------------------
Fail to update relevant services as per the request of Party A A
---------------------------------------------------------------------------------------------
Arbitrarily adjust the explanations or content of services declared by A
Party B or required by the norms online, which results in a deviation from
the content approved by Party A.
---------------------------------------------------------------------------------------------
Arbitrarily adjust content of services, resulting in nonconformity of B
service categories with those approved.
---------------------------------------------------------------------------------------------
Fail to provide ordered services in accordance with frequencies declared. A
---------------------------------------------------------------------------------------------
Provide billing agency service for illegal businesses of Internet websites C
in violation of laws.
---------------------------------------------------------------------------------------------
Coverage of users actually being sent messages beyond the declared scope B
---------------------------------------------------------------------------------------------
Carry out services not reviewed and approved C
---------------------------------------------------------------------------------------------
Service names, service explanations, service content or content of service A-B
links contain vulgar information
---------------------------------------------------------------------------------------------
Provide unauthorized content in violation of copyright laws A-B
---------------------------------------------------------------------------------------------
Service Content Name of actual service provider is not the same as that identified A
and Organization (approved by Party A) in the service explanations or introductions
submitted in service application
---------------------------------------------------------------------------------------------
Service provided by Party B violates provision of Information Source C
Networking Information Safety and Security Liability Statement or state
laws/regulations
---------------------------------------------------------------------------------------------
Uni-info service; delivery-on-demand service: as to multiple MTs caused by A
a single MO, charge for messages other than the first MT, in violation of
requirements of the Ministry of Information Industry
---------------------------------------------------------------------------------------------
Uni-info service: charge users without providing services B
---------------------------------------------------------------------------------------------
Uni-info service: maliciously send a lot of MT or call tickets B
(CHINESE CHARACTERS) not made to order, to Uni-info SP Management
System (SPMS)
---------------------------------------------------------------------------------------------
Uni-info service: fail to provide information service to subscribers due B
to defects in Party B's service designs or system, resulting in
cancellation of orders and complaint of subscribers
---------------------------------------------------------------------------------------------
Uni-info service: Input misleading data into SPMS C
---------------------------------------------------------------------------------------------
Music Street (10155) service: unacceptable quality of online voice A
programs or nonconformity of program due to reasons of SP, resulting in
subscriber complaints
---------------------------------------------------------------------------------------------
Other services injuring the interests of subscribers/Party A A-C
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Marketing Send PUSH information, messages to multiple receivers or outbound voice A-B
information without Party A's consent
---------------------------------------------------------------------------------------------
With Party A's consent to PUSH messages to multiple receivers, but B
arbitrarily changing the content of the message
---------------------------------------------------------------------------------------------
inconsistency between marketing materials and actual A-C
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
services; deception such as uninformed orders/charges to subscribers
---------------------------------------------------------------------------------------------
Forcibly or arbitrarily order service for users by technical means C
---------------------------------------------------------------------------------------------
Publicize the services by virtue of defects of systems and networks or A-B
through irregular channels, resulting in complaints of Party A's branches
---------------------------------------------------------------------------------------------
Conduct unfair competition in the marketing process; disrupt market order A-B
---------------------------------------------------------------------------------------------
Use name, logos and other materials of Party A without Party A's A-B
permission in violation of the Agreement
---------------------------------------------------------------------------------------------
Uni-Wap service: cross-linking in violation of Party A's requirements; B
conduct fraud, such as linking of "return to first level," "return to
homepage" and CLR actually connected to Party B's website or other services
---------------------------------------------------------------------------------------------
Uni-Wap service: disable subscribers' ability to return or make B
subscribers return to an unexpected page by technical means
---------------------------------------------------------------------------------------------
Industrial short message service: send messages to subscribers in a time A
other than 8:00-22:00
---------------------------------------------------------------------------------------------
Music Street service: arbitrarily conduct call transfers or outbound calls C
by technical means
---------------------------------------------------------------------------------------------
Other marketing activities injurious to the interest of subscribers/Party A A-C
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
System Maintenance After the service is available online, server function (response time and A
and Malfunction visiting success ratio, etc) are not up to standards set out by Party A
and system interruption time exceeds the time permitted by Party A
---------------------------------------------------------------------------------------------
Fail to update relevant information in SP service system A
---------------------------------------------------------------------------------------------
Content cannot be accessed or problems arise when accessed, due to reasons A
of Party B's technology
---------------------------------------------------------------------------------------------
Service cannot be upgraded as per Party A's request after launched A
---------------------------------------------------------------------------------------------
Service suspension for over 24 hours without prior notice to Party A, due A-B
to reasons of Party B
---------------------------------------------------------------------------------------------
Due to Party B's reasons, cause uninformed orders to subscribers or charge A-B
erroneously or excessively to subscribers
---------------------------------------------------------------------------------------------
Due to problems of security, a third party causes significant malfunction C
of Party A's service platforms or networks through Party B's system,
affecting services in part of or the entire network
---------------------------------------------------------------------------------------------
Party B maliciously causes significant malfunction of Party A's service C
platforms or networks, affecting services in part of or the entire
network, or Party B can not show evidence that the problem was caused by a
third party
---------------------------------------------------------------------------------------------
Uni-info service: after the subscriber sends 0000 to cancel subscription, A
Party B fails to keep pace with data in SPMS
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Other injuries to the interests of Party A/subscribers due to reasons of A-C
Party B's platform/system
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Fail to offer client support service in line with the Agreement and A
Service Management Procedures, evade or fail to respond to complaints of
Party A in the promised time limit
---------------------------------------------------------------------------------------------
Information as to 24-hour client service telephone number, etc. is A
Client inconsistent with that in Party A's SP service system; or information
Services indicated by Party B to clients is inconsistent with that in Party A's SP
service system
---------------------------------------------------------------------------------------------
Clients' complaints resulting from Party B's problems, leading to A-B
social/economic adverse effect to Party A
---------------------------------------------------------------------------------------------
Clients' significant complaints resulting from Party B's problems, leading C
to major media's adverse report of Party A or its business
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Multiple Class A breaching acts simultaneously or multiple Class A acts B
sequentially
---------------------------------------------------------------------------------------------
Multiple Class B breaching simultaneously or multiple Class B sequentially C
Others ---------------------------------------------------------------------------------------------
Other breaching acts specified in Party A's service management procedures See relevant
service
management
procedures
------------------------------------------------------------------------------------------------------------------
SCHEDULE 2: LIST OF INFORMATION CONCERNING PARTY B'S MOBILE VALUE-ADDED SERVICE
------------------------------------------------------------------------------------------------------------------------------------
List of Information Concerning Party B's Mobile Value-added Service
------------------------------------------------------------------------------------------------------------------------------------
Full Name
of the Shanghai Weilan Computer Company Ltd.
Company
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Corporate Abbreviation Shanghai Weilan Computer Company Ltd.
Code 20000 in English
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Telecom Term of
Value-added Telecom From July 10, 2003 until July 9, 2008
Service Value-added
Company License No. Hu B2-22030086 Service
Information License
Number
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Telecom & Term of
Information Telecom &
Service Information
License No. Service From [ ] until [ ]
License
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Business Term of
License No. 3101142019650 Business From December 2, 1999 until October 9, 2013
License
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Name Zhao Boxin Tel. ▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇.▇▇▇
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Contact Info Mobile ▇▇▇▇▇▇▇▇▇▇▇ Fax [Not known]
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Email ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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Mobile 24-hour
Value-added customer 95105500 021-33184600
Service Customer hotline
Service Info -----------------------------------------------------------------------------------------------------------------
Person in
Charge Yao Baoxin
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Customer
Service and
Introduction ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.▇▇
Website
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Information Full Name
about Party B's of the Nanxi office, Huangpu Branch, Industrial and Commercial Bank of China
Bank Account Recipient
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Deposit
Bank of Nanxi office, Huangpu Branch, Industrial and Commercial Bank of China
Recipient
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Recipient's
Bank Account 1001 2058 0900 6811 170
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EXECUTION PAGE (NO BODY TEXT)
PARTY A: CHINA UNICOM TELECOMMUNICATIONS CORPORATION
Legal Representative or Authorized Representative: /s/ Wang Yingpei
Date:
PARTY B: SHANGHAI WEILAN COMPUTER COMPANY LTD.
Legal Representative or Authorized Representative: /s/ Illegible
Date:
SERVICE EXHIBIT
UNI-MAIL SERVICE
EXHIBIT TO THE AGREEMENT WITH NO. :
CUVAS-V050-A2005-0114/S
SERVICE EXHIBIT UNI-MAIL SERVICE
INTRODUCTION
This Service Exhibit is an attachment to the "Mobile Value-added Service
Cooperation Agreement of China Unicom Telecommunications Corporation" (the
"Agreement", whose number is CUVAS-V05-A2005-0114) entered into between China
Unicom Telecommunications Corporation ("Party A") and Shanghai Weilan Computer
Company Limited ("Party B"), and forms an integral part of the Agreement.
For the purpose of developing the "Uni-mail" service hereunder, Party B has
obtained all permits and approvals that are necessary for the development of the
service, except for the certifications, qualification certificates and service
permits described in the Agreement. Party B warrants that the documents provided
such as permits are true and valid and it has sufficient capacity and
qualification to develop the mobile value-added service hereunder.
Party B warrants that it will observe the "Procedures for Administration of
Internet Information Service" and take full responsibility for the accuracy,
security and legality of the contents of the information supplied by it. It also
warrants that it will strictly prohibit the release or circulation of any
information that is in violation of national laws and regulations and that is
not in the national interest, social and public interest or the interest of
Party A.
The "Uni-mail" service referred to in this Service Exhibit means the mobile
value-added services under "Short Message" category that are jointly developed
by Party A and Party B (excluding industry short message category). The Service
Exhibit defines in detail the rights and obligations of the parties in the joint
development of "Uni-mail" service.
This Service Exhibit shall have the same legal effect as the Agreement.
Unless specifically indicated, the terms used in this Service Exhibit shall have
the same meaning as those defined in the Agreement. In the case of any
discrepancy between the Service Exhibit and the Agreement, this Service Exhibit
shall prevail.
DEFINITION
1. Mobile-originated Short Message (MO) means any short messages to be sent from
the mobile phone of subscribers to the short message gateway of Party B. All
costs arising from MO are called MO communication fees, which will be charged to
subscribers by Party A.
2. Mobile-terminated Short Message (MT) means any short messages to be sent from
the short message access number of Party B to the mobile phone of subscribers.
MT includes short messages under the PUSH category.
3. Imbalance Communication Fee means any fees arising from the imbalance of
short messages (which is MO - MT). The Imbalance Communication Fee shall be
charged to Party B by Party A.
4. System Feedback Message means any message to be sent out by the system to
subscribers for confirmation of their successful operation, system breakdown or
unsuccessful operation due to wrongful operation of subscribers.
CHAPTER 1 FORM OF COOPERATION
1. "Uni-mail" service is a mobile value-added service under the "Short
Message" category jointly provided by Party A and Party B to subscribers.
Party A, as a telecom operator of short message service platform, will
provide communication channels to Party B with consideration. Party B will
provide its subscribers with short message application service with
consideration by making use of the short message service platform of Party
A. The "Uni-mail" service hereunder is provided throughout the whole
country.
2. The national short message service jointly developed by Party A and Party B
shall be provided under "Uni-mail" as a unified cooperation brand name.
3. Party B shall provide true information in relation to its application for
the service in accordance with the requirements of SP service system when
making such application, and shall carry out testing on the service at the
time as agreed by the parties after the application is approved.
4. Party B shall verify the mobile phone number of subscribers and display
caller number when the subscribers send out short messages. No short
message by using anonymous name or other names will be allowed to be sent
to the mobile phone of any subscriber.
5. Party B shall be responsible for log recording and at a minimum, shall
retain the historical data of such logs for 6 months for inspection in case
of any problems.
6. Party B shall provide its subscribers free of charge with a service code
for cancellation of subscription services, which means that its subscribers
can cancel all the subscription services they place with Party B by dialing
"0000" to connect the service code of Party B.
7. Party B agrees to indicate the collection of information fee in each
message delivered to its subscribers in accordance with Party A's format
requirements.
CHAPTER 2 SERVICE INFORMATION
1. Party B shall provide information in relation to its application for the
service while making such application via Party A's SP service system.
After
confirmation by Party A of such information, testing on the service and
launching the service online will be conducted. Any information provided by
Party B with regard to the application for the service shall have legal
effect. Party A will activate the service online and prepare the billing
based on the information provided by Party B with regard to its
application.
2. Information provided by Party B with regard to its application for the
service shall include but is not limited to the following information: name
of the service, its category, trial use method and billing.
CHAPTER 3 BILLING AND SETTLEMENT
1. Billing and Settlement
(1) The communication fee shall be determined by Party A and charged
according to its requirements. Any income arising from the
communication fee shall belong to Party A.
a) With regard to the information on-demand and subscription services
ordered by subscribers via their mobile phones, the communication fee
of MO shall be charged at RMB0.1/message and no charge will be imposed
for MT.
b) Imbalance Communication Fee to be settled and paid by Party B to Party
A = Sum of ((Number of MO - Number of MT) X RMB0.05/message). The
Imbalance Communication Fee shall be calculated by each province,
which means that the Imbalance Communication Fee to be settled and
paid by Party B to Party A is the sum of the Imbalance Communication
Fee arising from 31 provinces to which Party A's service is provided.
If the number of MO of a particular province is less than the number
of MT, the Imbalance Communication Fee will be negative and shall be
calculated as zero.
(2) The information service fee shall be priced by Party B and approved by
Party A. The fee cap for the charge of on-demand service per message
shall be set at a maximum of RMB2 per message and the fee cap for
monthly service shall be set at a maximum of RMB15/month. Party A
shall prepare billing and collect fees on behalf of Party B.
(3) The parties shall share the information service fee in accordance with
the settlement method as agreed by them.
(4) The revenue sharing basis of the parties shall be the total
information service fees receivable after deduction of 8% in bad debt.
2. Settlement Method
(1) Parameter
E: Total Information Service Fee
B: Percentage of Bad Debt
S: Percentage of Party B's share:
IM: Total Imbalance Communication Fee
A: Ultimate Percentage of Party B's share, i.e., the ultimate and actual
percentage of Party B's share after deduction of other costs as agreed
by the parties.
T: Settlement Information Service Fee
(2) Calculation of A and T for "Uni-mail" service:
A = (1-B) * S.
T = E * A - IM
(3) Agreed Parameters:
B = 8%; S = 80%;
Party A will notify Party B in writing of any change in the parameters
and sign a supplemental agreement in respect thereof.
(4) If the parties agree to adopt a special service fee (including
free-of-charge and discounted service) in any billing period, such
special service fee shall be used for calculation of the information
service fee for that period.
3. Monthly Fee
With regard to the information service to be settled on a monthly basis,
subscribers may cancel their subscription services within 72 hours after
the service is subscribed without being required to pay any fee. If a
subscriber registers for a monthly service after the twentieth day of a
month, Party B shall not charge him/her any monthly fee for the month in
which the service is registered.
CHAPTER 4 WITHDRAWAL MECHANISM AND BREACH OF CONTRACT
1. The "Uni-mail" service hereunder shall be governed by the provisions of the
Agreement with regard to withdrawal mechanism and breach of contract.
2. The "Uni-mail" service hereunder shall be examined on the basis of the
following: 150,000 MO successfully sent out each quarter (If the
discrepancy of the statistics between the parties is lower than 5%, the
statistics of Party A shall prevail. If the discrepancy is more than 5%,
the parties shall re-verify the statistics, confirm the reasons for such
discrepancy and timely identify reasonable solutions thereto according to
actual situation.) If Party B fails to attain such benchmark, the
provisions with regard to withdrawal mechanism shall apply.
CHAPTER 5 CONTACTS
1. Party B shall register true and accurate contact information on the SP
service system and make amendments to the same in a timely manner. In the
event that Party A fails to contact Party B or perform its obligations
hereunder in a timely manner due to the failure on the part of Party B to
update its information, Party A shall not be liable for the breach of
contract.
2. Information of the contact person is as follows:
Party A: Name: Geng Yuqiang
Telephone No.: ▇▇▇▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇▇▇▇▇▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
Party A shall notify Party B of any change of its contact person and
his/her information:
Party B: Name:
Telephone No.:
Fax No.:
E-mail:
Confirmation Page (No body text in this page)
This page is the confirmation page (for signature and seal) of Exhibit 4 to
the "Mobile Value-added Service Cooperation Agreement of China Unicom
Telecommunications Corporation" (with an agreement number CUVAS-V05-A2005-0114).
Party A: China Unicom Telecommunications Corporation (Seal affixed)
Date: March 31, 2005
Party B: Shanghai Weilan Computer Company Limited
Legal Representative or Authorized Representative: (Seal affixed)
Date of Execution: March 31, 2005
SERVICE EXHIBIT
MUSIC STREET (10159) SERVICE
EXHIBIT TO THE AGREEMENT WITH NO. :
CUVAS-V050-A2005-0114/I-SP
SERVICE EXHIBIT MUSIC STREET (10159) SERVICE
INTRODUCTION
This Service Exhibit is an attachment to the "Mobile Value-added Service
Cooperation Agreement of China Unicom Telecommunications Corporation" (the
"Agreement", whose number is CUVAS-V05-A2005-0114) entered into between China
Unicom Telecommunications Corporation ("Party A") and Shanghai Weilan Computer
Company Limited ("Party B"), and forms an integral part of the Agreement.
For the purpose of developing the "Music Street (10159)" service hereunder,
Party B has obtained all permits and approvals that are necessary for the
development of the service, except for the certifications, qualification
certificates and service permits described in the Agreement. Party B warrants
that the documents provided such as permits are true and valid and it has
sufficient capacity and qualification to develop the mobile value-added service
hereunder.
Party B warrants that it will observe the "Procedures for Administration of
Internet Information Service" and take full responsibility for the accuracy,
security and legality of the contents of the information supplied by it. It also
warrants that it will strictly prohibit the release or circulation of any
information that is in violation of national laws and regulations and that is
not in the national interest, social and public interest or the interest of
Party A.
The "Music Street (10159)" service referred to in this Service Exhibit
means the mobile value-added services under "Voice" category that are jointly
developed by Party A and Party B.
This Service Exhibit shall have the same legal effect as the Agreement.
Unless specifically indicated, the terms used in this Service Exhibit shall have
the same meaning as those defined in the Agreement. In the case of any
discrepancy between the Service Exhibit and the Agreement, this Service Exhibit
shall prevail.
CHAPTER 1 FORM OF COOPERATION
1. Party B shall provide true and accurate information in relation to its
application for the service in accordance with the requirements of the SP
service system while making such application and shall carry out testing on
the service at the time as agreed by the parties after the application is
approved.
2. Party A, as a mobile network provider of the voice value-added service,
will provide and maintain the platform connecting to the voice value-added
service and its network resources, and will also provide billing services
and fee collection services to Party B for consideration.
3. The national voice service jointly developed by Party A and Party B shall
be provided under "Music Street" as a unified cooperation brand name and
shall be administered by Party A on a unified basis.
4. Party A may provide network supporting service to Party B in the future,
including co-location service and service supporting platform. The specific
details in respect thereof will be confirmed by Party A and Party B in a
separate agreement.
5. Party B shall be responsible for the design, development and innovation of
"Music Street (10159)" service and will provide its subscribers with
quality voice value-added service by making use of the mobile network
provided by Party A.
6. Party B shall promote its own brand in respect of the voice value-added
service.
7. Party A will provide Party B with any required technical information,
service standardization and connection standards, if necessary.
8. Party B will work alone (or cooperate with third parties) for the planning
of "Music Street (10159)" service and preparation of its resources. Party A
shall provide consulting service, technical support and recommendations to
Party B where necessary. The consulting service and recommendations given
by Party A to Party B shall be taken as reference only. Party A shall not
be liable for any losses suffered by Party B in connection with the
acceptance by Party B of Party A's consulting service or recommendations,
nor shall it be liable for any advice or effect on the service given by it
publicly or by way of service support.
9. Party A shall provide support as is necessary for the testing on network
connection in the development of its service according to its condition and
the requirements of Party B. Party A shall have the right to require Party
B to pay a significant cost in connection with the services provided by it
and, where necessary, the parties shall sign a testing agreement in respect
thereof.
10. Party B shall carry out testing in accordance with the service testing
standards of Party A. Party A will determine whether to accept an
application for the service made by Party B after taking into consideration
the result of such test. If such application is not approved by Party A
because the result of the test fails to meet the requirement of Party A for
service connection, Party A shall not be liable for it.
11. Party B may request for the connection of the service on a trial basis.
Party A may determine whether to approve the trial of the service after
taking into consideration the testing and examination of the service. The
parties shall be under an obligation to make an evaluation on the trial
service at the time agreed and to determine whether to launch the service
officially in accordance with the evaluation results.
12. After the launch of the "Music Street (10159)" service, Party B shall
solely maintain the system and network of the service that is provided to
the subscribers. If the provision of the "Music Street (10159)" service
cannot normally be made to subscribers due to the fault of Party B such as
the breakdown of its system, Party B shall be liable for it. Party B shall
also be required to compensate for any economic losses suffered by Party A
or the subscribers arising therefrom. In addition, Party B shall eliminate
any negative social effects on Party A arising therefrom.
13. Party A and Party B shall take technical and business measures to avoid any
bills with super long communication time. Party A shall have the right to
examine and inspect the bills with super long communication time through
its branch and carry out filtration process in respect thereof.
14. Party A and Party B shall be under an obligation to provide client service
to subscribers. Party B shall deal with any disputes of subscribers
relating to information service fee.
CHAPTER 2 SERVICE INFORMATION
1. Party B shall provide information in relation to its application for the
service while making such application via Party A's SP service system. After
confirmation by Party A of such information, service testing and activation of
the service online will be conducted. Any information provided by Party B with
regard to the application for the service shall have legal effect. Party A will
activate the service online and prepare the billing based on the information
provided by Party B with regard to its application.
2. Information provided by Party B with regard to its application for the
service shall include, but not be limited to the following information: name of
the service, its category, trial use method and billing.
CHAPTER 3 BILLING AND SETTLEMENT
1. Billing and Settlement
(1) The communication fee shall be determined by Party A and charged
according to its requirements. Any income arising from the
communication fee shall belong to Party A.
A. A unified information service fee will be charged for "Music Street
(10159)" service throughout the entire country. The communication fee
will be calculated by mobile switch (MSC). The information service fee
will be calculated when the voice service is connected with gateway
(VAG) in each province.
B. 10159 communication fee: pre-paid subscriber and after-paid subscriber
communication fee shall be RMB0.2/minute. Roaming communication fee
shall be charged in accordance with the existing information service
fee policy. The air time fee and information fee in connection with MT
that is sent by Party B shall be settled in accordance with the charge
rate as required in the "Procedures for Administration of Voice
Value-added Service."
(2) The information service fee shall be priced and implemented by Party B
in accordance with the "Procedures for Administration of Voice
Value-added Service."
(3) The parties shall share the information service fee in accordance with
the settlement method as agreed by them.
(4) The revenue sharing basis of the parties shall be the total
information service fees receivable after deduction of 8% bad debt.
2. Settlement Method
(1) Parameter
E: Total Information Service Fee
B: Percentage of Bad Debt
S: Percentage of Party B's share:
IM: Total Imbalance Communication Fee
A: Ultimate Percentage of Party B's share, i.e., the ultimate and actual
percentage of Party B's share after deduction of other costs as agreed
by the parties.
T: Settled Information Service Fee
(2) Calculation of A and T for "10159" service:
A = (1-B) * S;
T = E * A
(3) Agreed Parameters:
B = 8%; S = 65%
Party A will notify Party B in writing of any change in the parameters
and sign a supplemental agreement in respect thereof.
(4) If the parties agree to adopt a special service fee (including
free-of-charge and discounted service) in any billing period, such
special service fee shall be used for calculating the information
service fee for that period.
CHAPTER 4 WITHDRAWAL MECHANISM AND BREACH OF CONTRACT
1. The "10159" service shall be governed by the provisions of the Agreement
with regard to withdrawal mechanism and breach of contract.
2. The "10159l" service hereunder shall be examined on the basis of the
following: 150,000 minutes air time used by subscribers each quarter (If
the discrepancy of the statistics between the parties is lower than 5%, the
statistics of Party A shall prevail. If the discrepancy is more than 5%,
the parties shall re-verify the statistics, confirm the reasons for such
discrepancy and timely identify reasonable solutions thereto according to
the actual situation.) If Party B fails to attain such benchmark, the
provisions of the Agreement with regard to withdrawal mechanism shall
apply.
CHAPTER 5 CONTACTS
1. Party B shall register true contact information on the SP service system
and make amendments to the same in a timely manner. In the event that Party
A fails to contact Party B or perform its obligation hereunder in a timely
manner due to the failure on the part of Party B to update its information,
Party A shall not be liable for the breach of contract.
2. Information of the contact person is as follows:
Party A: Name: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: ▇▇▇▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇▇▇▇▇▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
Party A shall notify Party B of any change of its contact person and
his/her information:
Party B: Name:
Telephone No.:
Confirmation Page (No body text in this page)
This page is the confirmation page (for signature and seal) of Exhibit 5 to
the "Mobile Value-added Service Cooperation Agreement of China Unicom
Telecommunications Corporation" (with an agreement number CUVAS-V05-A2005-0114).
Party A: China Unicom Telecommunications Corporation (Seal affixed)
Date: March 31, 2005
Party B: Shanghai Weilan Computer Company Limited
Legal Representative or Authorized Representative: (Seal affixed)
Date of Execution: March 31, 2005
EXHIBIT 5
VOICE VALUE-ADDED SERVICES (10159)
EXHIBIT TO THE AGREEMENT WITH NO. :: CUVAS-A2004-116/I
EXHIBIT 5 VOICE VALUE-ADDED SERVICE
1. Means of Cooperation:
Voice value-added service refers to Party A, as the "mobile network provider" of
voice value-added services, provides partner CP/SP with resources such as fair
and high-quality access platforms, networks for mobile voice services,
subscribers, etc. and maintain the mobile voice service access platforms and
corresponding network resources. Voice content providers (SP) access the
platform to provide voice content. Two parties cooperate to provide users with
voice value-added services nationwide.
2. Interface of Cooperation:
2.1 Party A, as the "mobile network provider" of voice value-added services,
provides partner CP/SP with resources such as fair and high-quality access
platforms, networks for mobile voice services, subscribers, etc. and maintain
the mobile voice service access platforms and corresponding network resources.
2.2 Party A will provide partner CP/SP with billing agency service for a fee.
2.3 In the future, Party A will provide partner CP/SP with network supporting
services, including mainframe trusteeship and service supporting platform, etc.
2.4 Party A will uniformly manage and publicize the brands as to its voice
services.
2.5 CP/SP shall be responsible for design, development and innovation of voice
value-added services, and shall offer high-quality client services by virtue of
Party A's mobile network.
2.6 Each CP/SP shall be responsible for publicizing the voice value-added
services with its own brand.
2.7 If necessary, Party A will furnish Party B with necessary technical
materials, service norms and interface standards.
2.8 Party B shall conduct planning and resource preparations on its own or in
cooperation with third parties. If required, Party A may provide Party B with
services such as consulting, technical support and advice. Advice provided by
Party A is only for Party B's reference. In the event Party B suffers any loss
due to adopting any advice of Party A, Party A will not be liable for the loss;
and Party A shall not be liable for (implied) advice on service provided
publicly or by means of service support.
2.9 Party A is obliged to provide Party B with necessary support for networking
testing during the phase of business development, at the request of Party B; and
Party A has the right to charge Party B for such services provided. Parties may
sign a testing agreement as necessary.
2.10 Party A has the right to request Party B to test the proposed services on a
fair and transparent basis, and may decide whether to accept such service or
not, after analyzing the results of the test. If the test results are
unacceptable to Party A and as a result, Party B's application is denied, Party
A shall not be liable for any loss suffered by Party B. 2.11 Party B may request
to operate its service on a trial basis and Party A shall have the right to
approve or disapprove such request based on the service test and examination. If
the request has been approved, the parties are obliged to assess the service in
trial operation at an agreed time, and decide whether to formally operate the
service based on the assessment.
3. Codes for Voice Value-added Services (10159)
3.1 Party A will provide Party B with a voice value-added service (10159) code
(SP Code) to identify Party B in carrying out voice value-added services. The
code of 10159085 is assigned to Party B.
3.2. Party A warrants that Party B's SP code is unique and stable. Party A
acknowledges that in Party A's system (including but not limited to billing and
settlement system, data service
platform system, client service system), the SP code assigned to Party B shall
be the same as the formal name of Party B.
3.3 If Party B fails the service test and cannot provide the service as required
by Party A or the cooperation of the two parties terminate due to reason of
Party B, then Party A shall have the right to revoke the SP code assigned to
Party B and has the right to reject subsequent applications of Party B for voice
value-added service for a two year period.
4. Charges and Settlement
4.1 Voice value-added service charges include communication charges and
information service charges. Communication charges arise in the network of Party
A due to use of voice value-added services, including phone call charges and
short message charges. Party B shall uniformly determine a fixed unit price or
wholesale price for the communication charges, according to the specifications
of various services. Information service charges (information charges), result
from the use of specific content or application services provided by CP/SP.
Price for the information charges shall be determined by the CP/SP and approved
by Party A, on the basis of Party A's pricing rules.
4.2 Rules of Pricing
To ensure the rapid growth of voice value-added services, CP/SP shall generally
abide by the following rules of pricing for information charges. Party A shall
not be liable for any disputes between CP/SP and users as to information
charges.
1) Prices set by CP/SP as to content or service it provides to its users shall
be easy to understand, reasonable and acceptable;
2) Such prices shall correspond with the value of the content and services
provided, so as to maintain market order and promote sustainable development in
the mobile data service market. "Norms for Voice Value-added Services" provides
for the price ceiling for the information charges.
3) Such prices shall be in accordance with regulations of the state pricing
authority;
4) If CP/SP has injured Party A due to pricing reasons, Party A shall have the
right to take action to protect its own interest and to maintain the normal
development of the market.
4.3 Billing
In the whole country, communication charges will be billed in MSC and
information charges will be billed in SPVAG:
1) Communication charges: both pre-paid and post-paid subscribers: 0.2
yuan/minute; charge on roaming subscribers shall be implemented in line with
current pricing policies and shall be settled among provinces;
2) Information charges: both pre-paid and post-paid subscribers: charged based
on time or number of services. The pricing standards for these charges shall be
declared by CP/SP and implemented upon Party A's approval. As for charges based
on time of service, maximum price for chatting service shall be 0.1 yuan/minute,
for other services shall be 1 yuan/minute; and as for charges based on number of
services, maximum price shall be 5 yuan/number of services; prices for special
services may be declared separately.
4.4 Settlement
1) Income of communication charges arising from voice value-added services shall
be owned by Party A. Descending phone call charges or descending short message
charges generated by SP shall be settled at the rate set forth in the "Norms for
Voice Value-added Services."
2) Party A will provide billing agency service to CP/SP. After withholding 8%
for bad debts, Party A shall settle the charges with CP/SP every calendar month.
3) Rules for settlement of information charges: each month, SPs ranked in the
top 20% in terms of time of service provided, China Unicom shall settle
information charge with them as per the ratio of 30:70; SPs in the next 20%
shall be settled based per the ratio 40:60; and for all other SPs, settlement
shall be based per the ratio 35:65, regardless of categories of
services. In the first three to six months after the service is put into use,
information charges for all SPs shall be settled at the ratio of 30:70 for the
purpose of encouragement.
5. Client Services: See Exhibit 3
Schedule List of Voice Value-added Services No.
Company name: Shanghai Weilan Computer Company Ltd. Company Code: 20000 SP code:
10159085
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Starting Date Access Service code Service Service Name Type of Billing Additional Frequencies of Remarks
number Second dial Category Information Service
First dial charge
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Notes: Service Category: 0-client service; 1-voice chatting; 2- voice order;
3-interaction.
Instruction for delivery-on-demand: short message sent by subscriber when
ordering service.
Type of billing: free; based on number of messages; monthly-package.
Additional information charges: applied as to specially voice value-added
services introduced by CP/SP, and normal prices is lower than the cost of
such price.
Frequencies of service provisions: only applicable for made-to-order
outbound services.
Remarks: a brief introduction to the form and content of the service.
CONFIRMATION PAGE (NO BODY TEXT ON THIS PAGE)
This page is the confirmation page for signature and seal of Exhibit 5 of
the China Unicom Mobile Value-added Service Cooperation Agreement (Serial No.
CUVAS-A2004-116).
Party B: Shanghai Weilan Computer Company Ltd. (Seal affixed)
Legal representative or authorized representative: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Date: August 4, 2004
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