EXHIBIT 10.23
COOPERATION AGREEMENT
ON
SHORT-MESSAGING SERVICES
PARTY A: GUANGDONG MOBILE TELECOMMUNICATIONS CORPORATION
PARTY B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Guangdong Mobile Telecommunications Corporation (hereinafter referred to as
"Party A") is a network operation company that has been approved by the Chinese
authority in charge of information industry under the State Council to provide
mobile network telephone services (including voice message, data and multimedia)
to the general public within Guangdong province.
Beijing AirInBox Information Technologies Co.,Ltd. (hereinafter referred to as
the "Party B") uses wireless interconnections as its major platform to provide a
range of mobile message services to customers who can access the Internet via
mobile terminals or PCs.
For the purposes of giving full play of the advantage of each Party in its
service area and providing Monternet WAP services to its subscribers in
Guangdong and other users permitted by Party A, the parties have reached the
following agreement with respect to SMS cooperation in accordance with the
principles of equal benefit, advantage sharing, and mutual development.
ARTICLE 1 CONTENT OF THE COOPERATION PROJECT
1. As a provider of the platform for the delivery of SMS, Party A will
provide networking channel to Party B for a fee.
2. Party B shall, through Party A's SMS platform, provide the following
information and application services to Party A's subscribers of Gotone
and M-Zone in Guangdong and other subscribers agreed by Party A. Party B
shall, according to
subscribers' customization requirements, provide subscribers with timely
information services with sound quality and quantity.
3. Party A shall use its billing and business supporting system to provide
Party B with paid business billing and fee collection service.
ARTICLE 2 PARTY A'S RIGHTS AND OBLIGATIONS
1. Party A shall have the right to verify operation license for internet
information services or operation license for telecom value-added
services, credit certificate, business license, source of information and
bank account and other materials relating to the normal operation of
business provided by Party B.
2. Party A shall provide Party B with the connection point for SMS service
and SMS service volume control. Party A has the right to adjust SMS
service volume according to the capacity of its SMS center.
3. Any expansion of Party B's business offerings or its application to alter
its business shall be subject to Party A's review within 10 days upon
submission of related materials by Party B.
4. Party A shall have the ownership of its subscribers and the right to know
about Party B's business. Party A has the right to request Party B to
provide Party A with customer information, business profile, log and
statistics relating to Party B's Monternet services.
5. Party A shall have the right to stipulate measures for the management of
the Monternet services and to examine the performance standards and the
documentation with respect to customer services; Party A also have the
right to require Party B to observe and implement the above mentioned
measures and standards. Party A shall carry out 1-2 performance reviews on
Party B each year according to the management requirements mentioned
above.
6. Party A shall provide Party B with a system to identify and verify user
registration and log-on information, which system shall be connected with
Party B's content service system, and the subscriber data recorded by such
system shall be the controlling information on the subscribers' usage of
Party B's services.
7. Party A shall provide Party B with a customer service number for the
customer to make complaint and enquiry calls. Party A's customer service
center shall be the party to make final confirmation and distribution of
Monternet customer service problems, Party B's customer service personnel
or customer service system shall
assist Party A to analyze and deal with complaints and enquiries relating
to relevant customer services. Party A has the right to forward such
customer complaints and enquiries not arising from network communication
problems. Party A shall be liable for such customer enquiries and
complaints due to network communication problems.
8. Party A shall collect the service fee from subscribers for Party B based
on Party A's billing information.
9. Party A shall provide to Party B volume information at its SMS gateway
recording the amount of SMS sent by Party B; Party A's information will be
the basis for the settlement of SMS communication network fee.
10. Party A has the right to verify the profit forecast of the parties
provided by Party B to Party A prior to the activation of the service to
be provided by Party A.
11. Party A and Party B can jointly engage in marketing and customer
advertisement. Party A has the right to request Party B to identify the
brand of "MONTERNET" upon Party A's examination and approval. In the event
that Party B's promotion and advertisement involves the corporate name and
other brand specifications of Party A, it shall be subject to Party A's
prior examination and approval.
ARTICLE 3 PARTY B'S RIGHTS AND OBLIGATIONS:
1. Party B shall provide Party A with true and reliable operation license for
internet information services or operation license for telecom value-added
services, credit certificate, business license, source of information and
bank account and other materials relating to the normal operation of
business, and guarantee that the billing for such information services is
in compliance with relevant provisions of the State pricing authority.
2. Party B shall ensure content compliance with regulations and the nine
categories of illegal information listed in Information Source Networking
Information Safety and Security Liability Statement (Exhibit 4). Party B
shall be responsible for filtering the content (including the information
edited by the user through Party A's network) of information provided by
users, prohibiting any kinds of unhealthy and illegal information.
3. Party B shall provide Party A with its preliminary response within 2 hours
of receiving customer complaints and verify the reasons for the problems
underlying such complaints within one working day.
4. Party B shall verify the true identity of users and display calling number
along with the SMS. Any information directly being sent to other users'
Mobile phone only with anonymous and pet name will not be allowed
(excluding the chatting business of fictitious community).
5. Party B shall strictly control the function of group SMS service and
ensure a piece of SMS can be reached by at most 1-2 calling numbers.
6. During the term of this agreement, Party B shall not provide any third
parties the same information services that it provides to Party A through
any channels or any means; Party B must create a separate database for
Party A's subscribers(135 -- 139) that is separate from that for the
subscribers of any third parties. Further, Party B shall not provide any
Monternet services to any third parties any time through any means
(including chatting through SM, self-editing SM and sending SM through
network).
7. Party B shall not publish advertisement or other non-relevant information
on its website. Any supplement to Party B's business and application for
business alteration shall be subject to Party A's review and approval, and
shall be verified by Party A's billing examination. Party B shall timely
deliver to Party A such business materials that require Party B's
resolution. (As of the date of this Agreement, basic information provided
by Party B are listed as Exhibit 3 hereto.)
8. Party B shall provide Party A with reports on the customer development,
customer category, customer habit, business forecast and subscriber
information necessary for the administration of Party B's services, and
ensure timely upgrade of Party A's customer database. Party A shall keep
such information confidential in accordance with Article 7 "Confidential
Information." Party B shall be responsible for providing system to keep a
log of the required information mentioned above and shall keep historical
records for at least one month.
9. Party B shall ensure that customers are informed of the price, content and
the manner through which its services are provided prior to the delivery
of its services.
10. Party B shall obtain customer's consent before providing its services and
shall, according to subscribers' customization requirements, provide
subscribers with timely, quality and the correct quantity of information
services.
11. Party B shall observe Party A's measures with respect to the management of
the Monternet services and standards of customer service and
documentation; in addition, Party B shall be subject to Party A's
inspection and supervision. If, for
whatever reason, Party B withdraws from providing WAP services to Party A,
Party B must provide a one-month grace period to continue its service and
make a website announcement on its website (WWW/WAP) or other channels to
keep Party A's subscribers informed.
12. Party B shall handle customer enquiries and complaints not resulting from
network communication problems and establish effective channels for
complaints that will be directed to Party A's customer service center.
Party B shall assume the ultimate liability to customers for such customer
complaints for which neither Party A nor Party B can give a reasonable
explanation.
13. Party B shall fill out the number of billable characters in each delivered
message as required by Party A, and the form of the ▇▇▇▇ must conform to
the date format provided by Party A.
14. Party B shall be solely liable for tax payment on its profit.
15. Party B shall issue a formal invoice to Party A for such information
service fees collected from Party A.
16. Party B shall actively engage itself in marketing and customer promotion.
The content of Party B's promotion and advertisement materials shall
include the "MONTERNET" brand as required by Party A.
17. Within 6 months after the effectiveness of the Agreement, Party B shall
not conduct the same or similar WAP services within Guangdong province
with any third party.
ARTICLE 4 MAINTENANCE RESPONSIBILITIES
1. Responsibilities for maintenance shall be divided at the point where the
equipment of the parties connects; each Party shall perform its respective
obligations to ensure the normal operation of their services.
2. Detailed responsibilities of the parties are listed in Exhibit 1 hereto.
ARTICLE 5 BILLING AND SETTLEMENT
1. Party A shall be entitled to the network fees arising from customers' use
of SMS services. Party A and Party B together shall share in the
information service fees paid by customers in accordance with a
pre-determined percentage.
2. If subscribers refuse to pay the information service fees due to problems
with the
quality of Party B's service, such unpaid amount shall be deducted from
Party B's share of the information fees.
3. If Party B fails to transmit its information services in accordance with
the format requirements of Party A (i.e., by including in each message
certain wordings regarding information service fees), Party A will not
include such amount in the information fees collected for Party B and
Party B shall be solely liable for any consequence arising therefore.
4. Detailed method for billing and settlement is set forth in Exhibit 2
hereto.
ARTICLE 6 REWARD AND PUNISHMENT PROVISIONS
1. With the occurrence of any of the following circumstances, Party A has the
right to require Party B to reform and reorder immediately, and even has
the right to deduct from the information service fee collected by Party A
according to different circumstances. Party A has the right to terminate
the agreement immediately in very serious circumstances.
1.1 Party B is in violation of laws, regulations, measures or policies
concerning China's telecommunications or Internet information.
1.2 The content provided by Party B is in violation of applicable laws,
regulations and policies of state, Party B send illegal information set
forth in Information Source Access Network Safeguard Duty (Schedule 4)
through the Party's A system.
1.3 Party B acts substantially reckless in the collection of fees from the
users.
1.4 Severe complaint from customers with respect to the quality of Party B's
services.
1.5 Party B fails to observe the standards in using Party A's corporate name
and other brands as provided in this Agreement and such failure has
resulted in bad influence on the society.
1.6 Realizing inter-connection by using data application services provided by
Party A, or causing inter-connection between third parties using Monternet
services using services including short-messaging chatting, self-edited
short-messaging or Internet disseminated short-messageing.
1.7 Party A's network system is damaged due to Party B's system testing,
activation and modification. Other conduct of Party B in violation of this
Agreement.
1.8 Party B's customers are seriously affected by Party B's system testing,
activation and modification, which results in strong complaints from the
customers.
1.9 Other behavior violated the agreement committed by Party B.
2. With the occurrence of any of the following circumstances, Party A has the
right to terminate the corporation or deny to renew the agreement.
1) Party B fails to provide Party A with true and reliable operation
license for internet information services or operation license for telecom
value-added services, credit certificate, business license, source of
information and bank account and other materials relating to the normal
operation of business, and the billing for such information services isn't
in compliance with relevant provisions of the State pricing authority.
2) Party lies in the late 5 for consecutive two times during Party A's
review, and the reform has no effect.
3) Party A's written warn has no effect when Party B fails to prior
deliver the expected revenue date of both parties during the period of
corporation.
4) Party B has other serious fraud behavior during the period of
corporation.
3. If Party B lies in the top 10 for the Party A's review, Party A will
prevail to provide resources and assist Party B for advertising, and will
firstly take Party B's other requirement into consideration.
4. If Party B has effectively performed the obligations under the agreement,
and the claims rate from users is relatively law, then Party A will
prevail to consider to renew the agreement with Party B.
ARTICLE 7 CONFIDENTIALITY
1. Both parties shall be responsible to keep confidential all the customer
materials obtained from such services.
2. Proprietary information received by one Party from the other Party (the
"Disclosing Party") that is developed, created, discovered or learned by
the Disclosing Party, or transferred to the Disclosing Party, and is of
commercial
value to the business of the Disclosing Party, including but not limited to
relevant commercial secret, computer program, design techniques, idea,
know-how, process, data, business and product development plan, customer
information relating to the business of the Disclosing Party and other
information, or confidential information that the Disclosing Party receives
from another party, shall remain the property of the Disclosing Party, the
other Party shall keep confidential any and all proprietary information,
and without prior written consent of the Disclosing Party, shall not use or
disclose such proprietary information to any individual or entity, except
for the purpose of normal performance of the obligations hereunder.
3. Both parties shall be responsible to keep confidential this cooperation and
the terms and conditions of this Agreement. Without prior written consent
of the other Party, neither Party shall disclose to any third party details
of the cooperation between the parties and the terms and conditions of this
Agreement.
ARTICLE 8 LIABILITY FOR BREACH
1. If this Agreement cannot be performed due to any Party's violation of this
Agreement, the other Party shall have the right to terminate this
Agreement.
2. If any party breaches any obligations under this Agreement and incurs bad
social impact or economic losses to the other party, the other party shall
have the right to hold the breaching party responsible for such breach,
requires the breaching party to reverse such impact and make corresponding
compensations, and to terminate this Agreement.
ARTICLE 9 FORCE MAJEURE
Any party hereto shall not be held responsible for the other party's economic
losses or the failure or delay to perform all or any part of this Agreement due
to force majeure events that could not be predicted and the result of which
cannot be controlled or prevented. However, the party affected by such force
majeure events shall promptly provide the other party with written notice of
such occurrence and, within 15 days thereafter, send a valid certificate issued
by the relevant authority explaining the details of such events and the reason
for its failure or delay to perform all or any part of this Agreement. Both
Parties shall negotiate the performance or termination of this
Agreement according to the degree of impact on the performance hereof caused by
such events.
ARTICLE 10 AMENDMENT OR MODIFICATION
1. During the cooperation between the parties, relevant business management
requirements and relevant customer management requirements stipulated by
Party A for the Monternet shall be incorporated as a supplement hereto. If
there is any conflict between the provisions of this Agreement and the
management requirements, the management requirements shall prevail. Both
parties agree to negotiate on the conflicting provisions, and execute a
supplemental agreement.
2. If any party hereof intends to modify or terminate this Agreement, it shall
provide written notice to the other party at least 15 day prior thereto.
Notice in oral form shall be invalid. Any dispute arising from the
termination of this Agreement shall be negotiated in order to reach a
resolution between the parties.
3. Any issues not included in this Agreement shall, upon agreement through
amicable negotiations between the parties, be included as a written
supplement hereto.
4. This Agreement shall be governed by the laws of the People's Republic of
China. If the Parties hereto fail to reach an agreement in the event of
any dispute, either Party may file a lawsuit before the court of the place
where Party A is located.
5. This Agreement shall become effective after it is signed by the
representative of the Parties and affixed with the official seal of the
Parties, the term hereof shall be one year, which is renewable upon
agreement by both Party A and Party B through consultation.
6. This Agreement and Exhibits hereto are in four originals, each of Party A
and Party B holds two originals thereof, with the equal legal effect.
EXHIBIT 1: MAINTENANCE RESPONSIBILITIES
EXHIBIT 2: BILLING AND SETTLEMENT
EXHIBIT 3: PARTY B'S BUSINESS AND PRICE
EXHIBIT 4: INFORMATION SOURCE NETWORKING INFORMATION SAFETY AND
PARTY A: GUANGDONG MOBILE TELECOMMUNICATIONS CORPORATION /s/ Lin Zhenhui
PARTY B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD. /s/ ▇▇▇▇▇▇ ▇▇▇▇
STATEMENT
HEREBY, WE PROVE THAT THE RENEWAL OF SMS COOPERATION AGREEMENT BETWEEN OUR
CORPORATION AND BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO.,LTD IS STILL IN
PROCESS, AND THE COORATION IS STILL EFFECITIVE.
GUANGDONG MOBILE COMMUNICATIONS CORPORATION
(SEAL)