TECHNICAL SERVICE AGREEMENT (Including Technical Training and Technology Intermediary Services)
Exhibit
4.31
TECHNICAL
SERVICE AGREEMENT
(Including
Technical Training and Technology Intermediary Services)
Project
Name: Agreement
07DX037 on Nationwide PHS Short Message Business
Principal
(Party A): China
Telecommunications Corporation
Agent
(Party B): Beijing
AirInbox Information Technologies Co., Ltd. (seal)
Place
of
Execution: Haidian District, Beijing
Date
of
Execution: June 5, 2007
Validity
Term: June 5, 2007 to June 5, 2008
1
AGREEMENT
BETWEEN CHINA TELECOMMUNICATIONS
CORPORATION
LIMITED AND BEIJING AIRINBOX INFORMATION
TECHNOLOGIES
CO., LTD. ON NATIONWIDE PHS SHORT MESSAGE
BUSINESS
Party
A:
China Telecommunications Corporation
Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
Legal
Representative: Wang Xiaochu
Party
B:
Beijing AirInbox Information Technologies Co., Ltd.
Address:
▇▇/▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Dajie, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇
Legal
Representative: Wu Linguang
With
a
view to rendering to the broad masses of Party A’s users PHS short message
services by bringing into full play each Party’s resource advantages in its
service field, both Parties have, on the principles of honesty and good faith,
equality and mutual benefit, complementing each other for mutual promotion
and
jointly seeking development, and through full and amicable consultations,
reached an agreement as follows on the matters regarding engaging in business
of
nationwide PHS short message value-added services:
Article
1 Definition
1.1
Communication
Charges:
refer to
charges arising from PHS users’ use of Party A’s communication network
resources. The Communication Charges shall be paid by users to Party
A.
1.2
Information
Service Fees:
refer to
charges arising from Party B’s rendering to PHS users’ information and
application services. The information service fees shall be paid by users to
Party B.
1.3
Unbalanced
Downlink Communication Charges:
refer to
charges arising from Party B’s use of Party A’s communication network resources.
The Unbalanced Downlink Communication charges shall be paid by Party B to Party
A.
Article
2 Contents of Project
2.1
As a
provider for support system of PHS communication network and short message
service, Party A renders with charge to Party B the communication passage and
short message service support, enabling Party B to engage in PHS short message
value-added services.
2.2
As a
provider of short message contents and application services, Party B renders
to
Party A’s users PHS short message value-added services by taking advantage of
Party A’s PHS communication network and short message service support system.
Party B renders to users the contents and application services in a lawful
and
timely manner with the required quality and quantity based upon PHS users’
requirements on order and customization.
2
2.3
Businesses provided by Party B are those in the aspects of recreational
information, media interaction, chat community, testing, life, news as well
as
industry information.
2.4
Party
A renders with charge to party B the business charge calculation service and
service for collection of information service fees by taking advantage of its
charge calculation and business support system.
Article
3 Party A’s Rights and Responsibilities
3.1
Party A’s Rights
3.1.1
Party A shall have the right to have access to, examine and verify the materials
provided by Party B, such as business license for enterprise as legal person,
qualification certification, business permit certification, validity of
resources, examination and approval of commodity price as well as bank
account.
3.1.2
Party A allows Party B to provide Party A’s users with short message value-added
business during the validity term hereof with the grant of specific business
subject to both Parties’ confirmation in the form of business list which is
found in Annex 2 hereto.
3.1.3
The
long (/short) service code assigned by Party A to Party B during the validity
term hereof is 9855.
Party A
conducts management over such service code and has the right to recover it
upon
termination of this Agreement. In the event of adjustment of the code, Party
A
shall have the right to have such service code modified.
3.1.4
Party A shall have the right to formulate, supplement and perfect the relevant
measures for management of PHS short message value-added business, including
the
evaluation, user service standards and the like, and conduct restricts and
appraisal over Party B’s business operation in accordance with the relevant
measures. Party A shall have the right to conduct appraisal and treatment on
a
monthly, quarterly, semiannual and yearly basis according to the aforesaid
relevant management measures.
3.1.5
Party A shall have the right to demand Party B’s warranty on the validity of
information and application services provided by it. Party A shall, upon
discovery of Party B’s rendering to users information and application services
in violation of the State’s relevant policies, laws or regulations in conducting
businesses, have the right to demand Party B’s immediately taking the
corresponding measures for standardization. In respect of Party B’s breach of
contract, Party A shall have the right to terminate this Agreement, investigate
Party B’s liabilities for breach of contract in accordance with this Agreement
and Party A’s relevant management regulations, and deduct such part of sum in
settling accounts.
3.1.6
In
the event of users’ refusal to pay information service fees as a result of Party
B’s failure to achieve its undertakings to users in respect of service quality,
Party B shall bear all the liabilities. Party A shall have the right to make
no
collection for Party B of such information service fees, the payment of which
is
refused by users, without bearing any liabilities. Party A shall have the right
to deduct in settling accounts such refund as demanded by users as a result
of
Party B’s failure to achieve its undertakings to users in respect of service
quality.
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3.1.7
In
the event of users’ complaint due to failure of contents and application
services provided by Party B to meet requirements as stipulated in both Parties’
agreement during the validity term hereof, Party A shall have the right to
suspend Party B’s business and urge Party B to make rectification. Where the
case is serious, Party A may notify Party B in writing of immediate termination
of this Agreement. In case of economic losses incurred by Party A, Party B
shall
be liable for compensation therefor.
3.1.8
Party A shall have the right to control the short message flow and adjust in
a
timely manner the short message flow based upon the operation situation of
short
message service support system. In respect of any large quantities of abnormal
overloaded short messages that may affect Party A’s network operation safety,
Party A reserves its right to restrict their transmission or adjust in a timely
manner the short message flow based upon the capacity of short message service
support system; in the meantime, Party A shall have the right to advise Party
B
to deal with junk information or illegal attacks from Party B within the
specified time limit. In the event of Party B’s failure to deal with the same as
required, Party A shall have the right to take corresponding measures; in case
of emergencies, for protection of the lawful rights and interests of the broad
masses users, Party A shall have the right to take the corresponding measures
without notifying Party B thereof.
3.1.9
Party A shall have the right to give guidance to the price set by Party B based
upon users’ needs and requirements of market order and cease the business in
respect of which Party B varies without authorization the rate of service
without settling accounts. In the event of Party B’s violation of regulations,
Party A shall have the right to terminate this Agreement, investigate Party
B’s
liabilities for breach of contract in accordance with this Agreement and Party
A’s relevant management regulations, and deduct such part of sum in settling
accounts.
3.1.10
It
is specified by Party A that the users to whom PHS short message value-added
businesses are available fall within the effective scope of users for Party
B’s
calculation of charges as stipulated herein. Party A shall have the right to
make no settlement of information service fees resulting from invalid user
number and user number beyond the available business scope.
3.1.11
In
the event that Party B fails to deal with or delays in dealing with numbers
of
closedown, log-down or logon provided by Party A, Party A shall have the right
to investigate its liabilities for breach of contract and deduct such part
of
sum in settling accounts.
3.1.12
Party A shall have the right to demand Party B’s real-time submission of user’s
personal particulars, business materials, using record and statistical record
relating to Party B’s short message value-added businesses so as to ensure the
real-time upgrading of Party A’s user data bank.
3.1.13
Party A shall have the right to deal with Party B’s acts such as affecting the
normal operation of Party A’s network, occurrence of major loopholes or hidden
perils, unfair competition by adopting unjust means for promotion of business
(such as massive transmission of advertisements) or malicious fraud by
investigating Party B’s liabilities for breach of contract. The specific
measures may, depending on the seriousness of the case, be taken, such as
criticizing by circulating a criticism notice, suspending modifying business,
postponing account settlement, demanding Party B’s publicly apologizing to media
and users, making no settlement of accounts, making rectification within a
given
period until the termination of this Agreement.
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3.1.14
The ownership of the relevant equipment provided by Party A under this Agreement
shall belong to Party A.
3.2
Party A’s Responsibilities
3.2.1
Party A shall be responsible for providing Party B with PHS communication
network and short message service support system. Party A shall exert itself
to
ensure its normal operation and day-to-day maintenance and ensure the stable
and
straightway transmission of contents and application services provided by Party
B in Party A’s network.
3.2.2
Party A shall be obliged to provide Party B with specifications on interface
for
PHS short message gateway and the relevant technical protocol standards and
make
preparations prior to the business testing and commencement in collaboration
with Party B.
3.2.3
Party A shall be responsible for providing Party B with statements on conducting
of short message business.
3.2.4
The
number 10000 of customer service centers of Party A’s telecom (limited)
companies at provincial (city) level shall be the call centers for acceptance
of
users’ complaint. Party A shall be responsible for handling users’
consultancies, appeals and complaints arising from Party A’s network
communication issues and Party B shall be responsible for dealing with the
various kinds of users’ consultancies and complaints not arising from Party A’s
network communication issues and bearing the corresponding liabilities. In
respect of the users’ complaints on which neither Party can make a reasonable
explanation, Party A shall have the right to demand Party B’s reduction or
exemption of charges for the corresponding users.
3.2.5
Each Party shall have the obligation to declare the following exception clause
to users in commencement of such service by users, namely in the event of
economic losses incurred by both Parties and other third parties arising from
breakdown of Party A’s communication lines, communication technology problems,
breakdown of network and computer, instability of system, breakdown of
communication network not caused by Party A’s deliberate intent as well as other
kinds of force majeure reasons, neither Party shall be liable for economic
compensation.
3.2.6
Party A shall be obliged to keep confidential the user particulars provided
by
Party B for commencement of short message value-added business.
Article
4 Party B’s Rights and Responsibilities
4.1
Party B’s Rights
4.1.1
Party B shall, based upon the interface standards and specifications provided
by
Party A, have the right to develop and construct on its own PHS short message
contents and application service system.
5
4.1.2
Party B shall have the right to provide Party A’s users with PHS short message
value-added businesses through the network passage provided by Party A and
charge the corresponding information service fees.
4.1.3
Party B shall have the right to determine the business strategy for short
message value-added business at its own discretion and set the information
service fees for short message value-added business, provided however that
the
business pricing shall be made subject to Party A’s examination and
approval.
4.1.4
Party B shall have the right to have access to the relevant situations on
conducting of Party A’s PHS short message business through statements provided
by Party A on conducting of short message business.
4.1.5
Party B shall have the right to demand Party A’s provision of network
communication services on conditions stipulated herein so as to ensure the
stable and straightway transmission of information.
4.1.6
Party B shall be entitled to the information service fees settled in accordance
with stipulations contained herein.
4.2
Party B’s Responsibilities
4.2.1
Party B undertakes that the materials provided by it, such as the business
license for enterprise as legal person, certification on qualification for
operation of content and application service, credit certificate, industrial
and
commercial business license, after-sales service system, examination and
approval of commodity price as well as bank account, are valid and authentic
and
comply with the relevant provisions of the Ministry of Information Industry
regarding permit for business operation.
4.2.2
The
varieties of business operated by Party B shall be limited to those in the
aspects of recreational information, media interaction, chat community, testing,
life, news and industry information.
4.2.3
Party B shall be responsible on its own for the construction and maintenance
of
its own PHS short message contents and application service business system,
including all the work and expenses involving cooperation businesses regarding
hardware equipment, system debugging, commencement, system maintenance,
day-to-day business management and market development. Party B shall also be
responsible for optimization or upgrading and capacity expansion based upon
the
status of use of its system and equipment and as required by its business.
Party
B shall ensure that the system provided by it meets the various requirements
on
performance indexes with complete means of management, inquiry, statistics
and
analysis as required by Party A for provision of the corresponding functions.
Party B shall ensure that the services rendered by it conform to Party A’s
relevant specifications and business requirements.
4.2.4
Party B agrees to switch in Party A’s PHS short message gateway by using Party
A’s network and bear the corresponding expenses; Party A shall conduct
confirmation and debugging in collaboration with Party B under the system’s
actual circumstances.
4.2.5
Party B shall be responsible for the debugging, commencement and maintenance
of
its own system, ensuring that the foregoing work does not prevent Party A’s
existing communication network from normally running and bearing the
corresponding liabilities for leading to breakdown of Party A’s system. Party B
shall be obliged to ensure that no overloaded flows jeopardizing network
security are generated in the transmission of short messages to Party A’s
communication platform. Party B who makes alterations resulting in influence
on
Party A’s business operation shall give a one-month prior written notice to
Party A. Party B undertakes to subject itself in case of emergency to Party
A’s
adjustment of short message business to ensure the normal and stable rendering
of short message services.
6
4.2.6
Party B shall be obliged to subject itself to and implement the relevant
measures for management of PHS short message value-added business formulated
by
Party A, including provisions regarding user service standards and the various
evaluation management.
4.2.7
Party B shall be obliged to keep confidential the relevant technology, business
management materials, user particulars, contents of this Agreement and the
like
as provided by Party A. Without written consent of Party A, Party B shall not
divulge them to a third party. Otherwise, Party B shall bear all the
liabilities.
4.2.8
Party B warrants that the contents of information provided by it are in no
violation of the relevant State policies, laws and regulations and that it
is
duly authorized to do so. Party B must have the special human quality and
authorization for operation of the corresponding business (such as news,
picture, ring download, sexologic knowledge and the like) or certification
for
license of the relevant contents and versions. In the event of Party B’s breach
of contract, violation of the relevant provisions of the State, or adversely
affecting the society or leading to any objections, claims and even litigations
brought by a third party, Party B shall bear all the liabilities and be liable
for compensation of any losses incurred by Party A. Party A shall have the
right
to terminate this Agreement, investigate Party B’s liabilities for breach of
contract in accordance with this Agreement and Party A’s relevant management
regulations, and deduct such part of sum in settling accounts.
4.2.9
Party B must conduct a real-time filtration of the information contents
(including user-end software for massive transmission of short message, on-line
self-writing short message and the like) provided by it, politics-sensitive
vocabularies in particular, and prevent the event from taking place where a
person disseminates illegal contents by making use of homophones and varied
pronunciations of illegal vocabularies so as to ensure a safe and healthy source
of information flowing into Party A’s network. As required by the healthy and
stable development of PHS short message value-added business, Party B must
ensure from time to time the upgrading and expansion of key word stock and
ensure the timeliness, accuracy, authenticity, reliability and validity of
information contents; in the meantime, Party B must take technical measures
to
have the number of a user’s on-line edition and transmission of short message
each time limited to not more than 2 pieces, and have the ceiling of a user
number’s on-line edition and transmission of short message per day set as not
exceeding 200 pieces per day; in the event of Party B’s breach of contract, it
shall bear all the liabilities.
4.2.10
Upon discovery of sensitive contents in violation of the relevant policies,
laws
and regulations of the State in users’ information, Party B must promptly take
measures to stop the transmission of harmful information and keep a record
of
the relevant contents and users’ information with the backup of record being
kept for more than six months and provided upon inquiry by the relevant
competent authorities of the State in accordance with the law.
7
4.2.11
Party B must provide users with sophisticated approaches for customer service
and establish for users special customer service centers for business inquiry,
appeal and complaint acceptance, including 7*24-hour customer service phone
numbers such as 4008 or 800 and E-mail address, responsible for handling the
business consultancy, charge inquiry, appeal and complaint with which users
provide it regarding application service or content. Party B must publicly
inform the users of its customer service approaches in such way as business
promotion.
4.2.12
Party B shall be responsible for undertaking various kinds of users’
consultancies and complaints generated from the matters of this Agreement other
than from Party A’s network communication problems. As the final party for
resolution, Party B shall be obliged to ultimately and properly handle users’
complaints. The losses incurred by a user in using Party B’s service which is
not attributable to Party A shall be borne by Party B. Party B shall be obliged
to respond to the problems complained by users within two hours and completely
resolve within 24 hours the complaints for which Party B shall be liable, as
identified by both Parties. If it involves refunds to users, such part of
expenses will be uniformly deducted when Party A settles information service
fees with Party B.
4.2.13
Party B shall be obliged to provide Party A with the specific contact ways
and
name list of the relevant persons-in-charge in respect of its user service
approaches. Party B shall be responsible for handling the user inquiry, appeal
and complaint as forwarded by Party A’s customer service departments. In respect
of users’ complaints on which neither Party can make a reasonable explanation,
as the final party for resolution, Party B shall be obliged to ultimately and
properly handle users’ complaints and bear expenses arising therefrom. Party B
shall implement Party A’s demand for reduction or exemption of charges for the
corresponding users.
4.2.14
In
the event of Party A’s receipt of users’ complaints regarding dissemination of
information in violation of laws and regulations, Party B must preliminarily
revert them to Party A’s customer service departments within two hours upon
receipt of Party A’s notice, investigate and ascertain reasons within one
working day and be responsible for forthwith stopping dissemination of
information in violation of laws and regulations.
4.2.15
Party B must ensure that the pricing of short message value-added business
provided by it complies with the provisions of the State’s commodity price
policies and be responsible for handling the price complaints filed by the
relevant competent authorities or users.
4.2.16
Party B’s pricing for information service charge shall comply with the relevant
provisions of Party A’s management measures. Information service fee on a piece
basis shall in principle not exceed ▇▇▇ ▇ per piece; Information service fee
on
a single item monthly payment basis for businesses of customization type shall
in principle not exceed ▇▇▇ ▇▇ per month; The total sum of information service
fees on a single item and piece basis for businesses of customization type
shall
not exceed ▇▇▇ ▇▇ per month with pricing for special high value businesses
being
separately submitted for the record with commodity price authorities; the users
shall be exempt from paying charges in respects of transmission of business
information messages (such as business help information, price, customization
confirmation, customer service hotline, log-out of business and etc.), business
recommendation, user password and downlink short message illustrated in customer
service directives.
8
4.2.17
Party B shall be responsible for the market planning, media publicity and
information release of businesses provided by it. Party B shall conduct business
promotion and market publicity in its own name. Party B’s different kinds of
promotions must tally with requirements of the State laws and regulations
regarding advertisement publishing. In the event of harmful result due to Party
B’s promotions, Party B shall bear the corresponding liabilities on its own.
Party B shall give vigorous support to Party A’s arrangement for overall
promotion and publicity. No sales promotion program may harm users’ rights and
interests. Otherwise, Party B shall bear all the liabilities.
4.2.18
Party B must strictly abide by the relevant provisions of the Regulations
of the People's Republic of China on Telecommunications, the Measures
for Administration of Internet Information Services, the
Interim Provisions for Administration of Internet Websites’ Engaging in News
Publishing Businesses and
the Circular
Regarding Relevant Issues on Standardizing of Short Message
Services
as
promulgated by the Ministry of Information Industry on April 30, 2004, and
conduct a strict filtration of any information transmitted through Party B’s PHS
communication network and short message service support system, the specific
provisions of which are contained in Annex 1: the Instrument
of Responsibility on Safety Protection of Input Network Information from
Information Source.
Party B
must conduct a strict restriction and filtration of the information containing
the foregoing contents without having it transmitted. Otherwise, Party B must
bear all the legal liabilities arising therefrom.
4.2.19
Party B shall ensure the accuracy and prompt upgrading of information. Without
Party A’s consent, Party B shall not send to China Telecom’s PHS users the
advertisement short messages in a massive way without authorization. In the
event of violation thereof, Party B shall bear liabilities for breach of
contract. Party A shall have the right to impose on Party B such specific
measures as criticizing by circulating a criticism notice, suspending change
of
business scope, postponing accounts settlement, demanding Party B’s publicly
apologizing to media and users, making no settlement of accounts, making
rectification within a given period and up to the termination of this Agreement,
and the right to demand Party B’s bearing all the liabilities. In the event of
Party B’s demand for massive transmission of business, it shall file an official
written application with Party A who is to decide whether to approve such
application according to the circumstances involved and pursuant to provisions
of the measures for administration of business massive
transmission.
4.2.20
In
the event that Party B is compulsorily expelled in the appraisal organized
by
Party A or requested by Party A for termination of this Agreement due to Party
B’s other corresponding violation of regulations, Party B shall be obliged to
provide a one-month pre-exit buffer period at Party A’s request. During such
period Party B shall continue to render services to users, must cease the
corresponding violation of regulations and make an announcement to users on
ceasing of services in its website or through other channels.
9
4.2.21
During the validity term of this Agreement, Party B shall not commence short
message value-added services within the range of 21 provinces (cities)
affiliated to Party A in cooperation with other PHS network operators. In the
event of Party B’s breach of contract, Party A shall have the right to forthwith
terminate this Agreement and demand Party B’s bearing of all the
liabilities.
4.2.22
On
the principle of users’ voluntariness, Party B must ensure that it obtains
users’ prior consent before it renders to users any services (including services
with charge and services free of charge) without rendering services to Party
A’s
users on its own by short message under the circumstance where such users are
not informed thereof. In the meantime, Party B shall ensure that the users
are
fully informed of information on business (including price, business content
and
form, frequency of transmission, use method, main content, cancellation way,
customer service measure and the like); Party B shall not designedly intercept
information or send to users without authorization promotional and advertising
information. In the event of Party B’s breach of contract, it shall bear all the
liabilities.
4.2.23
Party B shall be obliged to set different subsistence period of short messages
based upon the distinctness of business, characteristics of contents and
business type with the subsistence period for broadcasting messages, such as
large-scale system notice for free not exceeding 5 minutes; the subsistence
period for business with high real-time requirements not exceeding 8 hours;
the
subsistence period for ordinary business not exceeding 16 hours; and the
subsistence period for a small quantity of special business not exceeding 24
hours. For avoidance of congestion of Party A’s PHS short message service
support system, Party B must, in transmitting short message by way of massive
transmission (referring to Party B’s massive transmission of short message to
users with business order relationship), do so in a “transmitting with
suspensions at intervals” manner, namely, the number of short message massively
transmitted consecutively each time shall not exceed 6 pieces and a transmission
interval of more than 5 seconds shall be set between every 2 massive
transmissions. In the event of Party B’s breach of contract, it shall bear all
the liabilities for network running system breakdowns arising
therefrom.
4.2.24
Party B undertakes not to engage in the business operations beyond the range
as
agreed upon by both Parties by taking advantage of resources provided by Party
A
under this Agreement. Party B’s increasing any new business or business
modification must be subject to Party A’s consent and Party B shall promptly
deliver to Party A a written application and the relevant business materials
in
accordance with the business modification flow. The commencement of such
business toward users may be made only with Party A’s consent and after passing
business testing and charge calculation testing. In the event of modification
or
increase of business without permission, Party A will take the necessary penalty
measures in respect of Party B’s violation of regulations with all the
consequences resulting therefrom being borne by Party B alone.
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4.2.25
Party B must provide users with unified methods for inquiry and cancellation
of
services with the specific provisions being as follows:
(1)
Instruction 0000 on itemized cancellation of service: Party B shall, upon
receipt of the short message 0000 edited and sent by a user to Party B’s service
code, resend all of Party B’s short message service lists ordered by such user.
For a user’s itemized cancellation of its customized services, no information
service fees shall be charged in respect of such instruction.
(2)
Instruction 00000 on one-step logout: A user may cancel all its customized
businesses by editing short message 00000 and sending it to Party B’s service
code without paying any information service charge for such
instruction.
(3)
Instruction on short message customer service: Party B must, upon a user’s
sending Party B’s service code to Party B’s service code, return help
information on customer service, the contents of which include: customer service
phone number, recommended instructions on key businesses, brief introduction
for
instructions on cancellation of service (the foregoing two instructions) and
so
on. No information service fees shall be charged in respect of such
instruction.
4.2.26
With respect to the business formally commenced following Party A’s approval,
Party B may file an application for modification of rate of business information
service charge only after a lapse of at least three months upon commencement
of
such business. Party B must, following passing Party A’s examination and
approval and upon formal commencement of business, in the first instance give
short message notices to users using such business in stages and batches by
short message free of service charge. Party B must specify in the short message
notices the detailed contents of modified rate, methods for cancellation of
customization as well as contents such as Party B’s customer service phone
number and website domain name; and in the meantime publish the modification
notice in a prominent place of Party B’s website (and keep it in such place for
one month); with respect to the modification of charge rate of business service
in close cooperation with a third-party information source, Party B may modify
such charge rate of business information service only subject to synchronized
publicity of the same in the main promotional media of such third-party
information source.
4.2.27
Party B shall be obliged to establish a “black list” system of customer service
for a sound management of “black list” in respect of users in malicious
arrearage and malicious customization and responsible for making the
corresponding explanations to users; Party B shall be obliged to take technical
measures to conduct supervision and control over abnormal flows so as to
exercise supervision, control, early warning and restriction over arrearage
which may result from high information service fees (exceeding RMB50/day/user)
arising from malicious customization; Party B shall conduct a restrictive
disposition of user numbers of cancelled numbers and resumed numbers provided
by
Party A and user numbers of cancelled numbers and unobtainable number. In the
event of Party B’s non-prompt handling of the aforesaid users or failure to
handle, it shall be fully liable for issues such as high amount of malicious
arrearage arising therefrom or arrearage as a result of use of short message
service business by users with closedown and logoff. Party A shall have the
right to have such part of expenses uniformly deducted in settling
accounts.
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4.2.28
With respect to information not ordered by users on a real-time basis and of
a
customized type, Party B must select with caution the time for sending of short
message (Party B is not allowed in principle to send users the message during
the time 0:00—7:00 and 12:30—14:00 each day) so as to avoid users’ complaints
for influence on their lunch and supper break. In the event of Party B’s breach
of contract, it shall bear all the liabilities.
4.2.29
Party B shall not provide users with inquiries on the detailed ▇▇▇▇ which shall
be provided by Party A. In the event of Party B’s breach of contract, it shall
bear all the liabilities.
4.2.30
Party B shall, upon sending by a user of ordering request to Party B each time,
send to the user short message with the relevant contents. In the event of
no
retrieval of information with the relevant contents, Party B shall notify the
user of unavailability of the relevant information by sending short message
for
free.
4.2.31
For customizations charged on a piece basis, the way of confirmation on a
one-time basis shall be practiced: upon a user’s sending to Party B short
message requesting for customization, Party B shall complete such user’s
customization and send to it a short message on completion of customization
with
the contents including success in customization, business name, rate, frequency
of sending, customer service phone number/website address as well as measures
for logoff, and specify that Party B is to continue to render services and
charge on the services in the next month in the event of no logoff. Such message
shall be sent free of charge.
4.2.32
For customized business of monthly payment, the way of confirmation on a twice
basis shall be practiced in the customization: upon a user’s sending to Party B
short message requesting for customization, Party B shall send to the user
a
prompting message with its contents including business name, brief introduction
of business, rate, frequency of sending, customer service phone number/website
address as well as measures for confirmation of customization. Such message
shall be sent free of charge; upon the user’s operation according to the
measures for confirmation of customization as provided by Party B, usually
sending a certain message to Party B; Party B shall complete such user’s
customization and send to it a short message on completion of customization
with
the contents including success in customization and measures for logoff, and
specify that Party B is to continue to render services and charge on the
services in the next month in the event of no logoff. In case of rate of monthly
payment for such customized business, expenses of monthly payment may be
included in this piece of message; in case of charging on a piece basis for
such
customized business, this short message shall be sent free of
charge.
4.2.33
The cycle of monthly payment: unless otherwise informed by Party A, the cycle
of
monthly payment shall be one telecommunication accounting term (natural month
accounting term).
4.2.34
Time of termination of service: Party B shall terminate services to a user
upon
the latter’s logoff and notify the user of success in logoff of such business by
sending a short message to it.
12
4.2.35
Repeated customization: in the event of a user’s customization of a business
having been customized, Party B shall send to the user a reply short message
free of charge notifying it of success in customization of such
business.
4.2.36
Measures for collection of charges of monthly payment: Party B shall, in sending
short message on charging rate of monthly payment, fill in the charges of
monthly payment in such message for Party A’s handling of accounting matters and
collection of charges of monthly payment with the users.
4.2.37
Sending of lengthy short message: in the event of a message exceeding 90 bytes
(45 Chinese characters, including punctuation symbols), Party B shall have
it
severed and sent. The information service fees for several pieces of short
message following the severance shall be paid on a one-piece basis, e.g. only
one piece is marked with charging information in calculation of charges on
a
piece basis.
4.2.38
For specifications on the rate of businesses with comparatively more uplink
users such as chat and community, the nature of information service must be
emphasized, e.g. “a rate of RMB 5 on a monthly payment basis for the information
service of this business” and the like. In the promotion of business for free,
emphasis must be made that, it is the information service charge and the time
for free that may be exempted.
4.2.39
No
fees shall be charged on a prompting message without substantial contents:
for
example, in the event of customization of services charging on a piece basis,
the message on success in customization shall be free of charge; in the event
of
ordering program without retrieval of the relevant contents, the prompting
message shall be free of charge and so on and so forth.
4.2.40
Party B shall cause its PHS short message content and application service
business systems to automatically record the time of sending and receiving
short
messages, numbers or codes of sending-end and receiving-end and have them kept
for more than six months.
4.2.41
Party B must take effective, technical and managerial measures to conduct
necessary content verification, examination and blocking over the senders who
“send more than 100 pieces of short messages per hour as an individual user
and
those sending more than ten thousand pieces of short messages per hour as a
group user”, and Party B is required to notify without delay the person
specially assigned by Party A for such purpose of the progress and result of
handling in a timely manner.
Article
5 Each Party’s Maintenance Segment and Maintenance
Responsibility
Both
Parties’ segments with maintenance responsibilities are divided at the junction
point of their equipment. Both Parties shall do their respective duties and
exert themselves to ensure the normal operation of businesses.
Article
6 Charge Calculation and Settlement
6.1
Principle of Generality
6.1.1
The
charge calculation and settlement shall be made on the basis of call bills
succeeding in charge calculating as collected by Party A’s calculation system.
For business with charges being calculated on a timely basis, the calculation
shall be launched subject to a user’s success in receipt of business; for
business with charges being calculated on a monthly payment basis, the
calculation shall be launched subject to a user’s authentic customization. In
the event of a user’s refusal to pay information service fees due to Party B’s
service quality, such charges shall be deducted from settlement made by Party
A
with Party B.
13
6.1.2
In
the event of Party B’s failure to provide Party A with information service
charge list within the stipulated period and in the prescribed form, Party
A
will not count them into the part of both Parties for charge calculation and
settlement with the corresponding consequences being borne by Party B. No
settlement shall be made as to the business beyond the range of business
list.
6.2
Charge Calculation Principles
6.2.1
The
charge calculation cycle shall be a natural month accounting term.
6.2.2
Party A shall be responsible for charge calculation, entering into accounts
and
fund settlement following account checking with two months lapsing for term
of
fund settlement in respect to the month when creditor’s right and indebtedness
actually takes place. Party A shall, prior to the 15th
day of
the next month, send to Party B by email Party B’s settlement notice of the last
month subject to Party A’s verification and confirmation. In the event that
Party B calls in question the notice, it shall render its feedback on the same
within five working days. Failing which, it shall be deemed to have had no
objections. Party B shall, prior to the 15th
day of
the second next month, send to Party A the official invoice (the unit issuing
invoice shall be “Department of Internet Space Undertakings, China
Telecommunications Corporation”). Party A shall, prior to the 30th
day of
the second next month upon receipt of official invoice, complete settlement
of
payments with Party B and remit the actually settled sum into the account number
designated by Party B.
6.2.3
In
the event of discrepancy between both Parties’ settlements with the discrepancy
ratio of settlement amounting to 5% (the method of calculation on the basis
of
Party A’s data: (the settled charges accounted on the basis of Party A’s data of
call ▇▇▇▇ - the
settled charges accounted on the basis of Party B’s data of call ▇▇▇▇)/ the
settled charges accounted on the basis of Party A’s data of call ▇▇▇▇) or more,
Party B may, within two days upon receipt of reconciliation sheet, demand
account checking. Based upon a unanimous understanding reached on the account
checking results and reasons for discrepancy, the Party at fault must reimburse
the other Party for such discrepancy based upon the degree of liability and
make
up for the difference on the principle of “settlement followed by make-up of
difference”.
6.3
Principles for Settlement
6.3.1
Party A charges communication fees and information service fees on users using
Party B’s business and makes settlement with Party B in the following options at
Party A’s discretion:
14
(A)
Option I
a)
Party
A is fully entitled to the communication fees.
b)
Party
A deducts 15% of information service fees receivable as bad debt; the remaining
85% of information fees receivable shall be allocated by both Parties in
accordance with different types of business and percentages as stipulated in
Article 6.3.2.
(B)
Option II
a)
Party
A is fully entitled to the communication fees.
b)
The
information fees actually collected shall be allocated by both Parties in
accordance with the different types of business and percentages as stipulated
in
Article 6.3.2.
6.3.2
The
different types of business and percentages for allocation are as
follows:
|
Number
of
Type
|
Business
Types
|
Percentages
for
Allocation
(Party A :
Party
B)
|
||
|
1
|
authorized
information (such as weather forecast, news and other information
needing
to be authorized by the relevant departments)
|
|
15:85
|
|
|
2
|
|
media
interaction (such as TV and broadcasting program
interactions)
|
|
15:85
|
|
3
|
|
industry
information (education, insurance, banking, lottery, securities,
etc.)
|
|
2:8
|
|
4
|
|
recreational
information (blessing, joke, sexual, life and utility,
etc.)
|
|
25:75
|
|
5
|
|
chat
and community
|
|
25:75
|
|
6
|
|
testing
(such as divination, testing, constellation, fortune,
etc.)
|
|
3:7
|
|
7
|
|
Games
|
|
2:8
|
|
8
|
|
other
types
|
2:8
|
6.3.3
Party A deducts the Unbalanced Downlink Communication Charges as a result of
Party B’s use of Party A’s communication passages from the information service
fees due to Party B with the calculation method being specified in the following
form: of which unbalanced uplink and downlink short message flow X = (Party
B’s
downlink short message flow - flow
of
short messages sent upward to Party B) with the unit being ten thousand
pieces.
|
Unbalanced Downlink
Short Message Flow
X (10,000 Pieces)
|
Rate
(RMB/Piece)
|
Unbalanced Downlink Flow
Communication Fees (RMB 10,000)
|
||
|
X = 0
|
0
|
0
|
||
|
0 < X ≤ 10
|
0.05
|
X×0.05
|
||
|
10 < X ≤ 50
|
0.04
|
(X - 10) × 0.04 + 10 × 0.05
|
||
|
50 < X ≤ 100
|
0.03
|
(X - 50) × 0.03 + 40 × 0.04 + 10 × 0.05
|
||
|
X > 100
|
0.02
|
(X - 100) × 0.02 + 50 × 0.03 + 40 × 0.04 + 10 × 0.05
|
6.3.4 During the
validity term of this Agreement, in the event that the amount of information
service fees of the current month to be settled by Party A to Party B is less
than RMB 3,000, both Parties temporarily make no settlement in the settling
month; after the accruing amount of information service fees of the current
month to be settled by Party A to Party B exceeds RMB 3,000, both Parties shall
make a settlement.
15
6.3.5
Each Party shall be responsible for its own tax payment. Party B shall, in
settling information service fees from Party A, provide Party A with official
invoice in compliance with the State’s provisions.
Article
7 Infringement and Warrant
Party
B
warrants that it is entitled to the intellectual properties of all such
information and application service resources as provided by it or has obtained
the licensing from the relevant right owners without infringing upon any
person’s intellectual properties such as copyright, trademark right, patent
right or trade secrets. In case of any dispute with a third party in this
respect in performance hereof, Party B shall bear all the legal and economic
liabilities arising therefrom, including but not limited to bearing all the
dispute resolution expenses, legal costs, reasonable attorney fees,
reconciliation amount or compensation amount as specified in a final judgment
arising therefrom, and shall be liable for compensation of losses and damages
incurred by Party A.
Article
8 Confidentiality Provision
Both
Parties shall be obliged to keep confidential the users’ particulars. Either
Party shall have the obligation to keep confidential the information on the
other Party (including its respective directors, managerial personnel, staff
members or representatives), the other Party’s users, business, finance, intent,
action or operation (collectively the “Confidential Information”). Unless as
stipulated in laws or required by the supervisory and regulatory organs to
disclose, neither Party shall divulge to any third parties the foregoing
“Confidential Information”. Otherwise, the divulging Party shall bear all the
liabilities.
Article
9 Liabilities for Breach of Contract
9.1
In
the event that this Agreement cannot be carried out due to either Party’s breach
of this Agreement, the observant Party shall have the right to terminate this
Agreement and investigate the former Party’s liabilities for breach of
contract.
9.2
In
the event of either Party’s breach of Contract which causes harmful social
influences or economic losses to the observant Party, the observant Party shall
have the right to investigate the other Party’s civil liabilities.
9.3
In
the event of Party B’s breach of this Agreement and Party A’s relevant
management regulations, Party A shall have the right to terminate this Agreement
and investigate Party B’s liability for breach of contract according to this
Agreement and Party A’s relevant management regulations. Where Party B is liable
for payment of liquidated damages and/or compensation under this Agreement
and
Party A’s relevant management regulations, Party A shall have the right to
deduct the relevant amount from settled sum of money.
16
Article
10 Force Majeure
Either
Party who is unable to perform or fully perform this Agreement due to accidental
events or force majeure shall bear no liability for compensation of economic
losses incurred therefrom by the other Party. The Party encountering the
aforesaid force majeure shall forthwith notify the other Party in writing of
conditions of such event and produce within fifteen days the valid supporting
documents on particulars of event and reasons preventing it from performing
or
fully performing this Agreement or requesting for postponed performance. Based
upon the degree of impact made by such event on performance hereof, both Parties
are to decide through consultations whether to continue to perform this
Agreement or have it terminated.
Article
11 Governing Law and Dispute Resolution
11.1
This
Agreement shall be governed by the laws of the People’s Republic of
China.
11.2
Any
dispute arising from this Agreement or in connection with this Agreement shall
be resolved by both Parties through amicable consultations. Failing which,
either Party may refer the dispute to the China International Economic and
Trade
Arbitration Commission for arbitration which shall be conducted in Beijing
in
accordance with the Commission’s arbitration rules in effect at the time of
applying for arbitration with the arbitration language being
Chinese.
11.3
The
arbitral award is final and binding upon both Parties.
11.4
Both
Parties shall, in the course of arbitration, continue to carry out other parts
of this Agreement not involving such arbitration.
Article
12 Miscellaneous
12.1
This
Agreement shall come into force as of the date when it is affixed with the
signatures and chops by both Parties’ representatives with its validity term
being one year and expiring on June 5, 2008. Either Party shall, within thirty
days prior to the expiration of term hereof, have the right to unilaterally
inform the other Party in writing of termination of this Agreement. Otherwise,
the term hereof shall automatically be extended for one more year.
Notwithstanding any provisions to the contrary contained in other clauses
hereof, in the event of Party B’s failure to produce extension authorization
instruments upon expiration of authorized term for information contents obtained
from a third party, Party A shall have the right to terminate this Agreement
upon expiration of such authorized term. As of the date when this Agreement
comes into force, the Agreement
between China Telecommunications Group and Beijing Airinbox Information
Technologies Co., Ltd. Concerning Cooperation in Nationwide PHS Short Message
Business
executed
by both Parties on March 22, 2005 shall terminate on its own.
12.2
In
the event of new rate policies or the relevant new documents issued by both
Parties’ competent department at a higher level during the validity term hereof
which contravene this Agreement, both Parties shall modify or terminate this
Agreement through consultations.
12.3
Matters not covered herein shall be complemented in writing following both
Parties’ amicable consultations.
17
12.4
This
Agreement is made in sextuplicate with each Party holding three copies, which
shall be of equal legal effect.
Party
A:
China Telecommunications Corporation
Authorized
Representative (Signature):
Date
of
Signing: June 5, 2007
Party
B:
Beijing AirInbox Information Technologies Co., Ltd. (seal)
Authorized
Representative (Signature):
Date
of
Signing: June 5, 2007
18
Annex
1
INSTRUMENT
OF RESPONSIBILITY ON SAFETY PROTECTION OF
INPUT
NETWORK INFORMATION FROM INFORMATION SOURCE
The
responsible unit of information source (referring to Party B hereto) hereby
undertakes to abide by the regulations as follows in accessing China Telecom’s
PHS communication network and short message service supporting
system:
|
1.
|
To
abide by relevant laws, regulations and administrative
rules of the State and strictly implement the provisions regarding
administration of information
security.
|
|
2.
|
Never
engage in activities of offences or crimes such as imperiling the
State
safety and divulging State secrets by taking advantage of China
Telecom’s
PHS communication network and short message service supporting
system;
never produce, look up, copy or disseminate the information in
violation
of the Constitution and laws, obstructing the social public security,
disrupting the unification of the country, undermining the unity
of the
nationalities, pornography and violence information and etc.; or
never
publish any information containing any of the following
contents:
|
|
2.1
|
Combating
the basic principles defined by the
Constitution;
|
|
2.2
|
Imperiling
the State safety, divulging State secrets, subverting the State's
political power or disrupting the unification of the
country;
|
|
2.3
|
Harming
the honor or interests of the
State;
|
|
2.4
|
Inciting
national hatred or national discrimination, or undermining the
unity of
the nationalities;
|
|
2.5
|
Undermining
the religious policies of the State, or propagating evil religions
or
feudalistic superstitions;
|
|
2.6
|
Spreading
rumors, disrupting social order or undermining social
stability;
|
|
2.7
|
Propagating
obscenity, pornography, gambling, violence, murder, terror or instigating
crimes;
|
|
2.8
|
Insulting
or slandering others, or infringing on the lawful rights and interests
of
any other person; or
|
|
2.9
|
Containing
other contents prohibited by laws or administrative
regulation.
|
Upon
discovery of the foregoing activities of offences or crimes and harmful
information, the responsible unit of information source shall forthwith take
measures to avert them and report the case to the relevant competent authorities
in a timely manner.
|
3.
|
The
responsible unit of information source must provide information
in
compliance with the relevant provisions of the State regarding
intellectual property.
|
|
4.
|
The
responsible unit of information source shall establish effective
information security and confidentiality system and technical guarantee
measures, and subject itself to the administration, supervision
and
inspection of the relevant competent
authorities.
|
19
|
5.
|
The
responsible unit of information source shall not engage in any
business
collecting charges for obscene and pornography websites. China
Telecom is,
within 24 hours upon discovery and verification of such case, to
unconditionally cut off the access passage for the responsible
unit of
information source and cease all the
settlements.
|
|
6.
|
In
the event of breach of the foregoing provisions, China Telecommunications
Corporation shall have the right to take measures to cut off the
relevant
access passage for the information source, in the meantime, investigate
the legal liabilities of the responsible unit, and terminate the
agreement
with the responsible unit. This Instrument of Responsibility is
taken into
safe keeping by China Telecommunications
Corporation.
|
Responsible
Unit: Beijing AirInbox Information Technologies Co., Ltd.
Person
Answerable for Violation:
(Signature
and Seal)
Date:
June 5, 2007
20
Place
for Affixing of Tax Stamps
(Tax
Stamp)
(Seal
of
Beijing AirInbox Information Technologies Co., Ltd.)
|
Column
for Examination and Registration by Registration Authority:
Person-in-Charge:
(Seal)
Technology
Contract Registration Authority (Special-Purpose Seal)
(Special
Seal of Beijing Technology Market Administration Office for Registration
of Technology Contract)
July
6,
2007
|
21