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EXHIBIT 10.32
AGREEMENT ON COMMUNICATIONS EQUIPMENT MAINTENANCE
This Agreement is executed by and between the following two parties on
September 8, 2000 in Shenyang:
PARTY A: LIAONING MOBILE COMMUNICATION COMPANY LIMITED
Legal representative: Zhang Xuehong
Legal Address: 128 Shi Yi Wei Lu, Shenhe District, Shenyang
PARTY B: LIAONING PROVINCIAL POSTS AND TELECOMMUNICATIONS ENGINEERING BUREAU
Legal representative: Li Jianchang
Legal Address: 158 Lian He Lu, Da Dong District, Shenyang
WHEREAS:
1. Party A needs Party B to provide maintenance services for Party A's
communications equipment .
2. Party B agrees to provide Party A with maintenance services for Party
A's communications equipment.
THEREFORE, Party A and Party B have reached the following agreement in
the principle of equality through friendly consultations.
ARTICLE ONE MAINTENANCE SERVICES; SUBJECT MATTER
1.1. "Maintenance Services" refer to maintenance services to be provided by
Party B for communications equipment in respect of which Party A enjoys
the property rights.
1.2. The subject matter of the Maintenance Services is the communications
equipment in respect of which Party A enjoys the property rights.
ARTICLE TWO TYPE, QUANTITY, AND VALUE OF SUBJECT MATTER
2.1. The types and quantities of Party A's communications equipment covered
by the Maintenance Services shall be determined as confirmed by the
Parties.
2.2. The value of Party A's communications equipment covered by the
Maintenance Services shall be the original purchase price of such
equipment.
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ARTICLE THREE MAINTENANCE FEE
3.1. Party B shall charge Party A the Maintenance Fee as agreed upon by the
Parties in this Agreement.
3.2. Standards of the Maintenance Fee:
3.2.1 In respect of principal mobile communications equipment: no
more than the product of the original purchase price of
the communications equipment under maintenance times 1% per
year (in RMB);
3.2.2 In respect of auxiliary mobile communications equipment: no
more than the product of the original purchase price of
the communications equipment under maintenance times 2% per
year (in RMB);
3.2.3 In respect of equipment used for value-added mobile
communications services: no more than the product of the
original purchase price of the communications equipment under
maintenance times 1% per year (in RMB).
3.3. In the event of any future adjustment to the charging standards of the
Maintenance Fee as required by the applicable national or Liaoning
provincial regulations, the Parties shall observe the standards as
adjusted. Party A and Party B hereby confirm that the standards of the
Maintenance Fee determined under Article 3.2 are in compliance with the
applicable national and Liaoning provincial regulations.
3.4. Party A shall prepay Party B, on or before February 30 each year, the
Maintenance Fee payable for the first half of the current year, and
prepay on or before July 30 Maintenance Fee payable for the second half
of the current year. The amounts of such prepaid Maintenance Fee shall
be determined as agreed upon in Articles 3.2 and 3.3. The Parties shall
verify the amounts of such prepaid Maintenance Fee by February 15 and
July 15, respectively, of each year, and shall deliver a statement of
such prepaid Maintenance Fee by February 30 and July 30, respectively,
to the other Party. In the event of any discrepancy in the amounts of
such prepaid Maintenance Fee following such verification by the
Parties, the Parties shall continue the verification until their
results of such verification conform to each other. If, as the result
of the circumstance referred to in the preceding sentence, the
prepayment of the Maintenance Fee is delayed, the time limit for such
prepayment shall be postponed correspondingly.
3.5. Party B shall provide low-value consumables, tools and vehicles
required for the Maintenance Services and shall bear the relevant
transportation and personnel expenses; Party A shall provide Party B
with supplies and spare parts required by Party B and bear the software
upgrading costs, if any.
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3.6. The Parties shall verify the settlement of the Maintenance Fee on a
semi-annual basis, i.e., the Parties shall verify the settlement of the
Maintenance Fee for the first half year by July 30 of the current year
and for the second half year by January 30 of the succeeding year,
respectively. On the basis of such verification, overcharged
Maintenance Fee will be refunded and deficiencies in payment will be
made up, as the case may be.
3.7. The Maintenance Services to be provide by Party B shall start from
October 1, 2000.
ARTICLE FOUR QUALITY CONTROL
4.1. Before Party B starts any Maintenance Services, the Parties shall
conduct joint testing and inspection of the communications equipment,
so as to determine its conditions and quality status. Such conditions
and quality status as determined by the Parties will be kept on file.
4.2. Party A shall provide Party B with the relevant materials, spare parts
and fittings of the relevant communications equipment.
4.3. Party B shall maintain, in accordance with the relevant maintenance
procedures, the communications equipment covered by the Maintenance
Services, and ensure that the Maintenance Services are provided in
compliance with the relevant standards and regulations. Party B shall
also maintain the normal operation of the communications equipment,
satisfy Party A's reasonable requirements, and provide Party A with the
relevant reports and data on a timely basis.
4.4. To the extent that the Maintenance Services provided by Party B fail to
meet the relevant standards and regulations (as set out in the appendix
hereto), or the normal operation of any communications equipment is
affected, 40% of the Maintenance Fee payable in the current half year
for such communications equipment shall be deducted if the aggregate
time of such failure exceeds 48 hours, or if single failure exceeding
24 hours occurs over 1 time but less than 2 times, in such half year
time; and 100% of the Maintenance Fee payable in the current half year
for such communications equipment shall be deducted if the aggregate
time of such failure exceeds 48 hours or single failure exceeding 24
hours occurs 2 times in such half year time.
4.5. Party B shall hold harmless from and indemnify Party A against any
damages to Party A's communications equipment due to improper
maintenance and mismanagement on the part of Party B or a third party
affiliated with Party B, as the case may be.
4.6. Party A has the right to conduct, on a regular or irregular basis,
quality inspections on the Maintenance Services provided by Party B.
4.7. Party A shall render assistance to Party B in respect of the
Maintenance Services provided by Party B.
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ARTICLE FIVE ADJUSTMENT TO MAINTENANCE SERVICES
5.1. If Party B needs to entrust a third party to maintain Party A's
communications equipment covered by the Maintenance Services, Party B
shall notify Party A in writing in advance and obtain Party A's consent
thereto. Notwithstanding the forgoing, Party B shall continue to be
responsible to Party A for such services provided by such third party.
Party B shall bear any and all increase in costs incurred in connection
with the involvement of such third party.
5.2. Upon prior written notice to Party B, Party A may entrust a third party
to provide maintenance and modulation services.
5.3. If Party A needs to relocate its communications equipment under Party
B's maintenance, Party A shall notify Party B in writing in advance and
allow Party B a reasonable period of time to make preparations for such
relocation.
ARTICLE SIX ASSIGNMENT OF RIGHTS AND OBLIGATIONS
6.1 Neither Party may assign any or all of its rights and obligations
hereunder without the other Party's written consent thereto.
ARTICLE SEVEN CONFIDENTIALITY
7.1 The Parties shall keep strictly confidential the other Party's business
data and information. Neither Party may, without the other Party's
written consent, provide or disclose to any other organizations or
persons any data or information with regard to the operations of such
other Party, unless such disclosure is required by the applicable laws.
ARTICLE EIGHT LIABILITIES FOR BREACH OF CONTRACT
8.1 Any failure of either Party to perform any of the terms hereunder shall
be deemed as breach of contract. The breaching Party shall correct the
breach within twenty days from the date of receipt from the
non-breaching Party a written notice specifying such breach. If the
breaching Party fails to correct such breach within such twenty-day
period, the non-breaching Party may select to terminate the Agreement
upon written notice to the other Party, in which case the breaching
Party shall compensate the non-breaching Party for all economic losses
sustained by the non-breaching Party as the result of such breach.
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ARTICLE NINE FORCE MAJEURE
9.1 Any event or circumstance beyond the reasonable control of a Party and
unavoidable by the affected Party by exercise of due care shall be
deemed as an "event of Force Majeure" and shall include, but not
limited to, earthquake, fire, explosion, storm, flood, lightning or
war.
9.2 Neither Party shall bear any liability for breach of contract if it
fails to perform all or any of its obligations hereunder as a result of
an event of Force Majeure. However, the Party or Parties affected by an
event of Force Majeure shall, within fifteen days of the occurrence of
such event, notify the other Party of the details of such event of
Force Majeure along with the relevant proof.
9.3 A Party/the Parties shall resume the performance of its/their
obligations hereunder after the effects of such event of Force Majeure
have been eliminated.
ARTICLE TEN GOVERNING LAW AND DISPUTE RESOLUTION
10.1 Any dispute arising from or in connection with the validity,
interpretation or performance of this Agreement shall be resolved by
the Parties through consultations. If no resolution can be reached
through consultations, either Party may submit such dispute to the
Shenyang Arbitration Commission for arbitration in accordance with its
then effective arbitration rules. Once Liaoning Mobile Communication
Company Limited is transformed into a wholly foreign-owned enterprise,
the dispute resolution institution shall be automatically changed to
China International Economic and Trade Arbitration Commission and any
dispute shall be resolved in accordance with its then effective
arbitration rules in Beijing. The award of such arbitration shall be
final and binding upon the Parties.
10.2 Except for matters under arbitration, the remaining part of the
Agreement shall be in effect during the time of arbitration.
ARTICLE ELEVEN NOTICES
11.1 Any notice or other document to be given under this Agreement shall be
delivered in writing and may be delivered in person, sent by registered
mail or transmitted by facsimile to the Parties at their legal
addresses stated in this Agreement or any other addresses a Party may
have notified the other Party in accordance with this Article.
11.2 Any notice or document shall be deemed to have been received at the
time as follows:
if delivered in person, at the time of delivery;
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if delivered by registered mail, five (5) business days after being
posted (excluding Saturdays, Sundays and public holidays); and
if transmitted by facsimile, upon receipt, or if the time of
transmission is during non-business hours, it shall be deemed to have
been given at the beginning of the normal business hours of the
succeeding day (excluding Saturdays, Sundays and public holidays),
subject to proof by the sender or confirmation from the facsimile
machine used for such transmission that a satisfactory transmission has
been completed.
ARTICLE TWELVE EFFECTIVENESS AND TERM OF AGREEMENT
12.1 The effective term of this Agreement shall commence on the date on
which it is affixed with the official seals of and executed by the
Parties and expire on December 30, 2001. Unless Party A notifies Party
B in writing of its intention to terminate this Agreement three months
prior to the expiration date hereof, this Agreement shall automatically
be extended for one year upon the expiration of its term. The times of
such extension shall be unlimited.
12.2 Party B hereby acknowledges that Party A may be transformed into a
wholly foreign-owned enterprise during the term of the Agreement
without consent or acknowledgement by Party B either prior to or after
the event, and that Party A's entire rights and obligations under the
Agreement shall not be affected or changed on the ground that the
nature of the company has changed into a wholly foreign-owned
enterprise. Party B will acknowledge the legal status of such wholly
foreign-owned enterprise in performing this Agreement.
12.3 In the event that the following conditions are not met, Liaoning Mobile
Communication Company Limited shall be entitled to terminate this
Agreement at any time. After the termination of this Agreement, the
Parties shall cease to enjoy any rights or assume any obligations under
this Agreement or in connection with its termination, except the rights
and obligations that have incurred under this Agreement prior to such
termination.
(1) China Mobile (Hong Kong) Limited ("CMHK") shall have been
granted relevant waivers by the Stock Exchange of Hong Kong
Limited ("HKSE") for CMHK's connected transactions in
accordance with the listing rules of HKSE; and
(2) The independent shareholders of CMHK who are deemed to be
independent in accordance with the listing rules of HKSE shall
have approved relevant transactions.
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ARTICLE THIRTEEN MISCELLANEOUS
13.1 During the performance of this Agreement, any provision that may become
invalid or unenforceable will not affect the validity of any other
provisions hereof.
13.2 Any matter not covered herein may be supplemented, explained, and
interpreted in a supplementary agreement or appendix to be entered into
by the Parties. All supplementary agreements and appendices hereto
shall constitute an integral part of, and have the same force and
effect as, this Agreement.
13.3 This Agreement is written in Chinese and signed in four counterparts.
Each Party will keep two copies, and all copies shall be signed by the
legal representative or authorized representative of each Party or
affixed with its official seal.
PARTY A: LIAONING MOBILE PARTY B: LIAONING PROVINCIAL POST AND
COMMUNICATION COMPANY TELECOMMUNICATION
LIMITED ENGINEERING BUREAU
By: s/ Zhang Xuehong By: s/ Li Jianchang
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Legal or authorized representative Legal or authorized representative
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