COOPERATION AGREEMENT ON MONTERNET WAP SERVICES (Translated from Chinese)
Exhibit
4.27
COOPERATION
AGREEMENT ON MONTERNET WAP SERVICES
(Translated
from Chinese)
Party
A:
China Mobile Telecommunications Group Corporation
Party
B:
Beijing AirInbox Information Technologies Co., Ltd.
According
to the principal of equality and mutual benefits, through friendly negotiation,
both parties agree to build up a cooperation relationship with
each
other. In order to regulate the rights and obligations between two parties,
this
Agreement is established. This Agreement is effective and binding upon both
parties.
|
1.
|
Cooperation
Principles
|
Based
on
the common interests and the mutual benefits, in the field of mobile data WAP
services, both parties shall perform this Agreement in good faith
and
coordinate with each other.
|
2.
|
Cooperation
Projects
|
Party
A,
as the network operator, shall provide the platform for MMS and communications
services, and also provide to Party B the standards for Monternet (TM)
WAP
service and technical standards for interfacing; Party B, as the service
provider, shall develop and provide application content services in accordance
with the standards provided by Party A. Party B may connect to Party A's MMS
platform to provide WAP service, subject to Party A's testing and approval,
viz.
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇.
|
3.
|
Obligation
|
|
(1)
|
Party
A's obligation
|
|
(a)
|
Party
A shall take advantage of the media it controls to promote and advertise
the main site of Monternet as to attract the consumer to log onto
this
site.
|
|
(b)
|
Party
A shall provide Party B with the Monternet WAP services criteria
and the
technical interface standards to insure Party B may successfully
connect
to
the main site of Monternet.
|
|
(c)
|
Upon
the request of Party B, Party A shall provide the necessary training
for Party B.
|
|
(e)
|
Party
A shall provide the services supplied by Party B and tested by
Party
A itself on the Monternet WAP main
site.
|
|
(f)
|
Party
A shall be responsible for the daily maintenance of the WAP network
platform and for the equipment technical troubles caused by Party
A to
insure
the appliance services can run
normally.
|
|
(g)
|
Party
A shall provide the network interface services for Party B without
any
charges, and assist Party B to connect the application services
with
the WAP network platform.
|
|
(h)
|
Party
A shall be responsible for establishing the criteria and standards
for the
WAP operation, fully disclose to Party B the criteria and
standards,
and allow Party B to realize these criteria and standards within
a
reasonable period.
|
|
(i)
|
Party
A shall be responsible for the registration, logon, authentication,
and
right appraisal of users, and shall provide the relevant data to
Party
B.
|
|
(j)
|
Party
A shall be responsible for calculating the number of visits, and
at the
request of Party B, shall provide the relevant data to Party B.
|
|
(k)
|
With
respect to the services Party B provided on the Monternet main site,
Party
A shall, according to the calculation materials provided by Party
B,
charge
Party A’s customers fees for using Party B’s services, and pursuant to
Article 7 pay Party B the relevant fees.
|
|
(l)
|
Party
A shall be responsible for providing the consultancy and customer
services, to deal with customers’ complaints, and shall immediately solve
the problems
caused by Party A with regards to the network, net gate, and the
operation
platform. With regards to problems caused by Party B, Party A shall
inform
Party B of the situation for Party B to resolve the problems as soon
as
possible.
|
-2-
|
(2)
|
Party
B's Obligation
|
|
(a)
|
Party
B shall utilize its controlled media (including web sites, WAP sites,
plane, TV, and etc.) to assist China Mobile to introduce the WAP
main site of Monternet (▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇) and the relevant application
services in order that more customers log on to this site to enjoy
this
service. After the written confirmation of Party A, Party B may make
use
of Party A’s company name or service name to advertise the Monternet WAP
services. Without the written authorization of Party A, Party B shall
not
advertise the WAP services foreign to the Monternet in the name of
"China
Mobile" and "Mobile Monternet".
|
|
(b)
|
Party
B shall, in accordance to the project to both parties, furnish the
WAP
application server, application software, information resources,
special
data
line, and the
other necessary equipment, and insure these equipment run normally
as
Party A required.
|
|
(c)
|
Party
B shall actively assist Party A to test the interface, insure to
connect
to the Mobile Monternet WAP main site in accordance with the Monternet
WAP
services criteria and the technical interface standards provided
by Party
A.
|
|
(d)
|
Using
the WAP system firewall of Party A and the interface of Party B as
the
boundary, Party B shall be responsible for all the equipment maintenance
at its side and insure the daily services of these equipment.
|
|
(e)
|
The
network performance capability provided by Party B shall reach the
following standards, which shall be tested and recorded by Party
A:
|
|
(i)
|
the
successful link ratio in traffic time shall not be less than 98%,
|
|
(ii)
|
the
network delay (indicating to the delay pinging from the WTBS to the
SP
server) shall not be higher than
100ms,
|
|
(iii)
|
the
response delay (indicating the delay from when the WTBS sends out
its
service request to when the WTBS receives a repsonse) shall not be
higher
than 500ms.
|
|
(f)
|
Party
B shall immediately solve the application service problems caused
by Party
B and take any necessary measures to insure that similar problems
will not occur. And Party B shall indemnify Party A or its customers
for
the damages caused by Party B.
|
-3-
|
(g)
|
Party
B shall be responsible for negotiating with the direct provider
as to the
application services content and for the business agreement. Party
B guarantees that the information and the services provided will
not
violate the related policies and regulations of the P.R.C., and
will not
infringe the consumers' interests and the third parties' intellectual
properties. With regards to the information services that requires
renewal, Party B shall be responsible for the examination of the
contents
and its setting out on the website and shall bear legal responsibility.
If
any lawsuit is brought regarding these matters, Party B shall be
accordingly liable.
|
|
(h)
|
Party
B shall assure its customers may smoothly use any services provided
on the
Mobile Monternet WAP main site by Party A. Unless having received
the
acknowledgement
from Party A, Party B shall not request users who log onto the Mobile
Monternet WAP main site to register or to qualify, and shall not
ask the
users to register on sites other than the Mobile Monternet WAP main
site.
|
|
(i)
|
Party
B shall insure that the provided contents be in compliance with law,
will
not infringe upon the third parties' lawful rights and be updated
timely.
|
|
(j)
|
Party
B shall not unilaterally provide any other services, which are not
ratified by Party A, through the WAP site, without the written consent
of
Party A.
|
|
(k)
|
The
application contents that Party B provides for Party A, shall not
be
supplied to other communication
operators or WAP sites, regardless of the carrier of these application
services. Otherwise Party A has a right to terminate the application
services provided by Party B on the WAP main site of Party A and
cancel
the payment to Party B.
|
|
(l)
|
Party
B shall not provide its own toll service on its own WAP site, or
else
Party A may terminate the application services provided by Party
B on the
WAP
main site of Party A and cancel the payment to Party
B.
|
|
(m)
|
If,
prior to the cooperation with Party A, Party B has supplied its own
service on the site of its own or of Party A's branch companies in
provinces, Party
B shall terminate such services in principle. Party B may add a Mobile
Monternet link in the place of the original service. Otherwise, Party
A
may terminate the application services provided by Party B on the
WAP main
site of Party A and cancel the payment to Party
B.
|
-4-
|
(n)
|
Party
B shall add a link to Mobile Monternet WAP main site's homepage
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇) on its own WAP site, and shall recommend
users
to use the application
services on the Mobile Monternet WAP main site.
|
|
(o)
|
Party
B may select to provide nation-wide services on the Mobile Monternet
WAP
main site or local services on the provincial branch companies' WAP
site;
however,
with respect to services of the same kind, Party B only can select
one of
these two options, which means the local services shall not be provided
again in the nation-wide services; the nation-wide services shall
not be
provided again on the local services, and Party B shall not provide
WAP
connecting services in several provinces in order to provide nation-wide
service, otherwise Party B's nation-wide services will be
terminated.
|
|
(p)
|
Without
the written consent of Party A, the brand or the brand logo of Party
B
shall not appear in the application services provided by Party B
on the
Party
A's WAP website, and the logo of Mobile Monternet shall be
used.
|
|
(q)
|
Any
redirection to the third party's or Party B's URL address links shall
not
appear in the services provided by Party B on Party A's WAP website;
and all the services shall add a link to the homepage of Monternet
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇).
|
|
(r)
|
Party
B shall clearly furnish to Party A all materials that are required
for the
calculation of business income and shall bear all economic and
legal
responsibilities.
|
|
(s)
|
Party
B shall hold the Business License of Operating Trans-regional Value
Added
Telecommunication Service issued by the Ministry of Information
Industry
of the People's Republic of China. Party B shall comply with all
the
requirements specified by said license. The scope of services provided
by
Party B shall also be consistent with the duration and geographical
coverage prescribed under the said
license.
|
-5-
|
Both
Parties' Rights
|
|
(1)
|
Rights
of Party A
|
|
(a)
|
If
administrative organizations adjust their policies, Party A is entitled
to
so inform Party B and make the adjustments according to the policy
requirements of
the administrative organizations.
|
|
(b)
|
Party
A has the right to inspect by itself, or by authorized third parties,
the
content and the information Party B provided, and to examine whether
or
not the content
is timely.
|
|
(c)
|
Party
A may refuse to release or delete the information provided by Party
B that
contains inappropriate content in violation of the statutes, regulations,
policies of
the P.R.C. If any economic damages to Party A or any impairment of
the
goodwill to Party A occur, Party A may ask Party B for
compensation.
|
|
(d)
|
Party
A is entitled to request Party B to modify, amend, or delete the
content
which it considers
requires modification, amendment or
deletion.
|
|
(e)
|
Party
A has the right to establish the standards to examine the application
services provided by Party B, and upon such standards to evaluate
the
services provided by Party B. With respect to the application services
that do not meet the standards for a consecutive period of 3 months,
Party
A may ask Party B to adjust or modify the related services, if the
services still cannot reach the requirement of Party A after such
adjustment and modification, the services qualification of Party
B shall
be canceled.
|
|
(f)
|
Party
A has the right to determine the order of application services on
the WAP
main site of Party A provided by Party
B.
|
|
(g)
|
Party
A is entitled to guide or inspect Party A's fee
criteria.
|
|
(h)
|
Party
A shall have the right to obtain its reasonable revenues. (For details
regarding revenue sharing, please see Article 7 of this Agreement.)
|
-6-
|
(2)
|
Rights
of Party B
|
|
(a)
|
Party
B may select to provide nation-wide services on the Mobile Monternet
WAP
main site or local services on the local branch companies' WAP site;
for
nation-wide
services, Party B may make an application to Party A; for local services,
Party B may make an application to the local branch of Party A. However,
the fee settlement of the local services provided by Party A’s local WAP
sites is not provided by Party A but is made by the sole agreement
with
the local branch company.
|
|
(b)
|
|
(c)
|
Party
B shall be entitled to obtain statistical data regarding customer
visits
to Party B’s information and application service contents through the
network platform.
|
|
(d)
|
Without
the written consent of Party B, Party A shall not transfer, distribute,
or
re-sell the product information of Party B to any third party.
|
|
(e)
|
Party
B has the right to acquire a reasonable part of revenue of the service.
(For details of the allocation of the revenue, please refer to Article
7
of this Agreement.)
|
|
(f)
|
If
the statistics from Party B and that from Party A are significantly
different, Party B may ask Party A to furnish the detailed statistics
for
verification.
|
|
5.
|
Confidentiality
|
|
(1)
|
Both
parties shall undertake to maintain in confidence and not to disclose
to
any third party any of the business secrets of the other party in
any
way. For the purpose of this Agreement, the business secrets herein
refer
to the relevant data, price, quantity, and technology projects, specific
contents of this Agreement and other materials or information relating
to
the business of the other party, which are disclosed by one party
to the
other party (including its parent company, subsidiary companies,
shareholding companies and branch
companies).
|
|
(2)
|
All
the materials and information disclosed by one party to the other
party
under this Agreement shall belong to confidential information. Either
party shall not disclose to
any third party the above confidential information received from
the other
party, or use it on the matters other than provided under this Agreement.
|
-7-
|
(3)
|
Any
person of either party who embarks on the cooperative matters under
this
Agreement, or knows or learns of the above confidential information
(including
but not limited to each of party's employees, representatives, agents
and
consultants, etc.) shall undertake the same confidentiality obligations
as
set forth herein.
|
|
(4)
|
The
term of confidentiality shall extend for a period of one year from
the
date of expiration or termination of this
Agreement.
|
|
6.
|
Intellectual
Property Rights
|
|
(1)
|
Party
A authorizes Party B to use the trademark and the company name of
Party A
for the purposes agreed in this contract. Party B warrants that it
shall
use the trademark and company name of Party A in correct and reasonable
ways and will not change or misrepresent the image and components
of
aforesaid trademark and company name and that it will not use trademark
and company name of Party A for purposes other than those stipulated
in
this contract in any form.
|
|
(2)
|
Party
A owns copyright to the propaganda information it provides to Party
B in
accordance with this contract and originality, design, figure, picture
and
words included therein. Without prior written consent of Party A,
Party B
shall not use or allow any third party to use them for purposes not
stipulated in this contract.
|
|
(3)
|
Party
B warrants that WAP content it provides to Party A is in no violation
of
intellectual property rights of any third party. Party B shall be
responsible for any claims or disputes related to the WAP content
or
caused by Party A’s using the WAP content and shall indemnify Party A for
any losses therefore incurred by Party
A.
|
|
7.
|
Revenue
Sharing and Fee Settlement
|
|
(1)
|
Party
A and Party B shall cooperate to provide WAP services to Party A's
customers, and both parties are entitled to reasonable revenue. The
fee
settlement shall
be based on the statistics from Party A's charging system.
|
|
(2)
|
This
fee settlement is limited to the nation-wide services provided by
Party B
on the WAP main site of Party A, and does not include the local services
provided by Party B
on the local websites of Party A.
|
-8-
|
(3)
|
Party
A shall be entitled to the communication fees arising from Party
A’s
customers for their use of WAP services
on the network of Party A.
|
|
(4)
|
The
term of fee settlement shall start from the beginning of this project
and end when this agreement expires or is terminated.
|
|
(5)
|
Party
A shall, through its network-wide fee-calculation service system,
collect
the fees for providing services on the Mobile Monternet WAP main
site,
15% of which shall be taken by Party A, while the remaining 85% shall
be
paid to Party B.
|
|
(6)
|
Party
A shall before the 20th day of every month inform Party B of the
income to
which Party B is entitled for the previous month (deducting the
information fee receivable by Party A). Party B shall
make out a formal invoice to Party A based on Party A’s
information.
|
|
(7)
|
Party
A shall, after receipt of the invoice and after verifying that the
invoice
contains no errors, remit the fees receivable by Party B to its appointed
bank account within 10 working days, based on the account information
provided by Party B.
|
|
(8)
|
Party
A and Party B shall pay taxes arising out of the WAP service revenue
respectively.
|
|
(9)
|
Fee
settlement is based on Party A's calculating system. If Party B dissents
to the calculation result, Party B may request for verification and
Party
A shall assist Party B to examine the reasons of problems,
however, the fee settlement of this month will not be adjusted.
|
|
(10)
|
Party
B shall provide Party A with its accurate bank account and related
information:
|
|
Name
of Beneficiary:
|
Beijing AirInbox Information Technologies Co., Ltd |
|
Opening
Bank:
|
Beijing Capital Stadium Branch, Industrial and Commercial Bank of China |
|
Account
No.:
|
0200053719200031688 |
|
8.
|
Force
Majeure
|
|
(1)
|
If
any party cannot perform this Agreement because of the impact of
force
majeure events such as wars, serious fires, floods, typhoon, earthquakes,
and
so on, the term of performance shall be extended. The extended term
shall
be equal to the period during which the impact of force majeure
lasts.
|
-9-
|
(2)
|
Force
majeure refers to incidents, which are unforeseeable at the time
of making
this Agreement, and the occurrence and consequences of which are
unavoidable
or insurmountable. Upon the occurrence of force majeure, the party
suffering therefrom shall so notify the other party as soon as practicable
by telegraph, facsimile or telex, and shall, by express or registered
mail, send a certificate of force majeure issued by the relevant
authorities to the other party for confirmation within two weeks
since the
occurrence of force majeure.
|
|
(3)
|
If
the impact of force majeure lasts more than 120 days, both parties
may
terminate this Agreement.
|
|
9.
|
Liability
for Breach
|
|
If
any party's breach of this Agreement causes this Agreement to be
unenforceable, the non-breaching party shall be entitled to terminate
this
Agreement
and require compensation for any losses thus
incurred.
|
|
(2)
|
If
any party's breach causes adverse social impact or economic losses
on the
other party, the non-breach party shall be entitled to hold the breaching
party
liable and demand corresponding economic compensation, or even terminate
this Agreement.
|
|
10.
|
Dispute
Settlement
|
|
(1)
|
If
any dispute arises relating to the performance of this Agreement,
the
parties
shall settle it through friendly
consultation.
|
|
(2)
|
If
the consultation fails to resolve the dispute, either party may refer
the
dispute to the Beijing Arbitration Commission for arbitration based
on its
arbitration rules. The award of the
arbitration shall be final and with binding force upon both
parties.
|
|
11.
|
Term
of This Agreement
|
|
(1)
|
This
Agreement shall become effective as of January 1, 2007 and the
expiration
date is December 31, 2007.
|
|
(2)
|
If
both parties
agree, during the term of this Agreement, to terminate this Agreement,
this Agreement shall be automatically
terminated.
|
|
(3)
|
If
the occurrence of any force majeure events makes it impossible to
continue
performance of this Agreement, this Agreement may be automatically
terminated
upon settlement of all outstanding bills by both
parties.
|
-10-
|
(4)
|
If
the occurrence of a certain event makes it impossible for one party
to
continue performance of this Agreement, and if such event is foreseeable,
such
party shall notify such event to the other party within five working
days
after its reasonable forecast of such event, and cooperate with the
other
party to complete all outstanding matters. If such party fails to
notify
the other party of such event and thus make the other party suffer
losses,
such party shall indemnify the other party
correspondingly.
|
|
12.
|
Miscellaneous
|
|
(1)
|
Attachment
to this Agreement, SP Cooperation Administrative Measures, WAP
Handbook, has the same legal effect with this
Agreement.
|
|
(2)
|
Any
outstanding matter shall be addressed by both parties through friendly
negotiation.
|
|
(3)
|
This
Agreement is made in duplicate and each party shall hold one copy.
Each
copy shall have the same legal
effect.
|
Party
A:
China
Mobile Telecommunications Group Corporation
/s/
Gao
Nianshu
Date:
2007-04-27
Party
B:
Beijing
AirInbox Information Technologies Co., Ltd
Authorized
Agent: (signature)
/s/
Luo
Zheng
Date:
2007-05-15
-11-