EXHIBIT 4.29
Cooperation Agreement on Monternet Multimedia Messaging Services
Party A: China Mobile Telecommunications Group Corporation
Party B: Beijing AirInBox Information Technologies Co., Ltd.
According to the principles of equality and mutual benefit, through
friendly negotiation, both parties agree that Party B shall entrust Party A to
provide communications carrier services, fee collection and other services. This
Agreement is entered into in order to regulate the rights and obligations of the
two parties in the course of providing services. This Agreement is effective and
binding upon both parties.
1. Cooperation Principles
Based on common interests and mutual benefit in the field of mobile data
multimedia messaging services, each party shall perform this Agreement in good
faith and cooperate with the other party's work.
2. Cooperation Projects
"MMS" refers to the multimedia messaging services provided by China Mobile.
Its most significant feature is its support of multimedia functions and its
capacity to deliver full-functional content and information, which includes the
information in multimedia format such as word, picture, voice and data.
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) MMS service and technical standards for interfacing; Party B, as
the service provider, shall develop and provide application and content services
in accordance with the standards provided by Party A. Party B may connect to
Party A's MMS platform to provide MMS service, subject to Party A's testing and
approval.
3. Mutual Obligation
(1). Party A's obligation
(a) Party A shall use all kinds of promotional media (e.g. TV
advertisement, posters etc.) to promote and advertise Monternet(TM) multimedia
messaging services so as to attract consumers to use multimedia messaging
services.
(b) Party A shall provide Party B with technical standards for interfacing
and technical support for MMS to insure Party B may successfully connect to
Party A's MMS network platform.
(c) Upon request by Party B, Party A shall provide the necessary training
for Party B.
(d) Considering the MMSC system firewall of Party A and the interface of
Party B as the boundary, Party A shall be responsible for maintaining all the
equipment on its side and ensuring this equipment is able to perform normally.
(e) Party A shall be responsible for the daily maintenance of the MMS
network platform and for resolving technical breakdowns caused by Party A in
order to ensure that application services can run normally.
(f) 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 MMS network platform.
(g) Party A shall be responsible for establishing the criteria and
standards for the MMS operation, notifying Party B of the criteria and standards
fully and unequivocally, and shall give Party B a reasonable period of time to
realize these criteria and standards.
(h) For the services provided by Party B on the MMS network platform, Party
A shall collect fees from its customers for their use of Party B's services
pursuant to the pricing information provided by Party B and confirmed by Party
A, and settle the fee with Party B pursuant to relevant provisions under Section
6 of this Agreement.
(i) Party A shall be responsible for providing consultant and customer
services, and receiving customers' complaints about the network, the operations
platform, fees, etc. that are caused by factors on Party A's side; meanwhile,
regarding complaints caused by factors on Party B's side, Party A shall notify
Party B of the relevant situation and ask Party B to resolve it as soon as
possible.
(2) Party B's obligation
(a) Party B shall be subject to the cooperation requirements and
obligations specified in the "Monternet(TM) SP Cooperation Administrative
Measures--MMS Business Handbook," which is attached to this Agreement.
(b) Party B shall use all kinds of promotional media (including Web sites,
WAP sites, surface media, TV, etc.) to promote MMS services. Party B shall
obtain prior consent from Party A before Party B uses Party A's name and
business trademark in promotion of Monternet(TM) MMS service; without prior
written consent of Party A, Party B shall not use the name of "China Mobile" or
"Monternet(TM)" to conduct any promotional activity, which is not under this
Agreement.
(c) Party B shall be responsible for providing the application server,
application software, information source, dedicated line for application data
and other necessary equipment and ensuring that all the provided equipment can
work normally to meet Party A's requirements.
(d) Party B shall actively cooperate with Party A's testing of the
connection point, and
undertake to provide MMS service in accordance with the MMS network platform
business standards and connection point technical standards provided by Party A.
(e) Using the connection point of Party A's MMSC system firewall with Party
B as the boundary, Party B shall be responsible for maintaining all equipment on
its own side, and for ensuring the smooth operation of such equipment.
(f) Party B shall immediately address any breakdown of application services
caused by itself, and take practical measures to prevent re-occurrence of such
breakdown. Party B shall be liable for any economic losses suffered by Party A
or the customer of Party A's MMS service caused by Party B.
(g) Party B shall negotiate and handle commercial arrangements with direct
providers of the application content (such as the owners of image or music
copyrights). Party B shall ensure that the information and services it provides
do not violate any applicable state policies, laws or regulations, do not harm
consumers' interests or infringe on the intellectual property rights or relevant
interests of any third party. Party B shall be solely liable for the litigation
thus incurred.
(h) Without Party A's prior written consent, Party B shall not unilaterally
provide other services, which are not confirmed by Party A, to Party A's
customers.
(i) Party B shall not provide to any other telecommunications service
operator the same application service content provided to Party A regardless of
the transmission means of the application service; otherwise, Party A is
entitled to terminate the application services provided by Party B on Party A's
MMS and network platform and cease making fee payments to Party B.
(j) Party B shall provide Party A with all clear and indiscriminate
information required for fee calculation of the services provided by Party B,
and shall assume all economic and legal liabilities related thereto.
(k) Party B shall provide Party A with all statistical information relating
to the consumption of Party B's MMS services by Party A's customers.
4. Mutual Rights
(1) Rights of Party A
(a) Party A shall be entitled to review or entrust a qualified institution
to review the information provided by Party B and the content of Party B's
application services.
(b) Party A shall be entitled to refuse to transmit any information which
contravenes the state directives, regulations and policies and other contents
that Party A deems inappropriate, and require Party B to compensate any adverse
impact on Party A's business and reputation due to reasons hereto.
(c) Party A shall be entitled to demand Party B to amend, modify and delete
those contents which Party A deems necessary to do so.
(d) Party A shall be entitled to formulate checking standards for the
application services provided by Party B, and evaluate Party B's performance in
accordance with such standards. The evaluation methods are detailed in the
attachment to this Agreement: Chapter 9 of the "Monternet(TM) SP Cooperation
Administrative Measures, MMS Business Handbook."
(e) Party A shall be entitled to give guidance and supervision of the
pricing policy of Party B's service.
(f) Party A shall be entitled to receive reasonable revenue. (See Section 6
of this Agreement for detailed revenue sharing.)
(2) Rights of Party B
(a) Party B shall be entitled to determine the pricing of its services
under Party A's guidance.
(b) Party B shall be entitled to obtain statistical data regarding customer
visits to the Party B's information and application service contents through the
network platform.
(c) Without Party B's consent or written authorization, Party A shall not
transfer, release or resell any information products provided by Party B to any
third party unrelated to this Agreement by any means.
(d) Party B shall be entitled to receive a reasonable share of the business
revenue. See Section 6 of this Agreement for detailed revenue sharing.
(e) In case of significant discrepancy between the statistics of Party A
and Party B, Party B is entitled to check details together with Party A for
verification, the details of which are set forth in Chapter 6 of the
"Monternet(TM) SP Cooperation Administrative Measures, MMS Business Handbook".
5. Confidentiality
(1) For purpose of this Agreement, "Proprietary Information" refers to any
information obtained by one party from the other party ("DISCLOSING PARTY")
during their cooperation which is developed, created or discovered by the
Disclosing Party, or be available to or transferred to the Disclosing Party that
are commercially valuable to the Disclosing Party's business. Proprietary
Information includes without limitation trade secrets, computer program, design
technology, idea, know-how, technique, data, business and product development
plan, customer's information and other information related to the business of
the Disclosing Party, or confidential
information obtained by the Disclosing Party from others. The Parties
acknowledge that the Disclosing Party shall own Proprietary Information, and
such Proprietary Information is of significant importance to such Disclosing
Party. The cooperation relationship between the Parties hereto has generated the
relationship of confidence and trust related to Proprietary Information between
the parties hereto.
(2) Without prior written consent of the Disclosing Party, the other party
shall keep any of Proprietary Information in confidence and may not use or
disclose to any person or entity such Proprietary Information, except for normal
performance of the obligations provided hereunder.
(3) Both Parties shall bear non-disclosure responsibility for this
cooperation and the details of this Agreement. Without the prior written consent
of the other party, either party shall not disclose such cooperation and details
of this Agreement to any third party.
6. Revenue Sharing and Fee Settlement
(1) The MMS will be provided by Party B to Party A's consumers through
Party A's MMS platform and telecommunication network. Therefore both parties are
entitled to receive reasonable revenue.
(2) Telecommunications fee generated by Party A's consumer in use of Party
A's network resources to access Party B's services shall be solely borne by
Party A.
(3) Party A shall figure out the information fee receivable from its
customers for use of Party B's services, 15% of which shall be taken by Party A,
while the remaining 85% shall be paid to Party B.
(4) The basis of settlement: Monternet(TM) service fee bill shall be the
basis for settlement.
(5) Party B may, pursuant to the fee settlement bill issued by Party A's
local subsidiary, conduct fee settlement with Party A's local subsidiary without
entering into other agreement with Party A's local provincial subsidiary.
(6) Settlement period: China Mobile settles with Party B monthly.
(7) Fee calculation standards and settlement procedure are described in
Chapter 6 of "Monternet(TM) SP Cooperation Administrative Measures, MMS Business
Handbook".
(8) Pursuant to tax laws and regulations, Party A and Party B shall pay
taxes arising out of performance of this Agreement respectively.
(9) 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 Business Bank of
China
Account No.: 0200053719200031688
7. Liability for Breach
(1) If any party's breach of this Agreement causes this Agreement to become
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 require corresponding economic compensation, or to the extent
of terminate this Agreement.
8. Term of This Agreement
(1) This Agreement shall become effective as of the date of its execution
and be effective until June 30, 2006.
(2) The term of this Agreement may be automatically renewable for another
year on the expiration date in case that both parties intend to prolong
cooperation under this Agreement. If one party has no intention to prolong this
Agreement, it shall give a written notice to the other party at least one month
prior to its expiration.
(3) This Agreement may be automatically terminated upon agreement by both
parties during the term of this Agreement.
(4) In case of this Agreement has no possibility to be performed due to any
force majeure events, this Agreement may be automatically terminated upon
settlement of all outstanding bills by both parties.
(5) 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.
9. Miscellaneous
(1) Attachment to this Agreement, the "Monternet(TM). SP Cooperation
Administrative Measures, MMS Business Handbook," has the same legal effect as
this Agreement.
(2) All matters not included in this Agreement, shall be addressed by both
parties through friendly negotiation.
(3) If any dispute arises relating the content or performance of this
Agreement, the parties shall settle it through friendly consultation; if the
consultation fails to resolve the dispute, either party may bring the dispute to
a Chinese court with due jurisdiction.
(4) 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
Authorized Agent: (signature) Lu Xiangdong
Date: 2005-8-10
Party B: Beijing AirInBox Information Technologies Co., Ltd.
Authorized Agent: (signature) Li Lu
Date:
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