Tom Online Inc. Contracts
Sample Business Contracts
Cooperation Agreement - Shanghai Maya Online Broadband Network Co. Ltd. and Beijing Lei Ting Wan Jun Network Technology Ltd.
Collaboration Forms
[Translation of Chinese original]
Cooperation Agreement
Ref No.: LTWJ-I381
This Agreement is entered into by and between the following parties:
Party A: Shanghai Maya Online Broadband Network Company Limited (hereinafter
referred to as "Party A")
Address:
Legal representative:
Party B: Beijing Lei Ting Wan Jun Network Technology Limited (hereinafter
referred to as "Party B")
Address: 8/th/ Floor, Office Tower W3, Oriental Plaza, No.1 East Chang An
Avenue, Dongcheng District, Beijing, the PRC
Legal representative: Wang Leilei
With the aim of pursuing joint development and making use of each other's
strength, after friendly negotiation, the parties hereto agreed on the following
terms in respect of cooperation with consideration on the basis of equality and
mutual benefits.
1. Definition
1.1 TOM website: the websites owned by Party B, which comprises the Internet
website of tom.com, and other Internet websites controlled by TOM.COM
LIMITED, including but not limited to www.tom.com, www.163.net and
www.gtom.com.cn.
1.2 Party A's website: the Internet website of www.china110.com\police owned by
Party A.
1.3 Users: any user who accesses the Internet and visits and browses the
contents of TOM website.
1.4 Information: the pictures and text provided and licensed to Party B by
Party A in accordance with Article 2.1 of this Agreement.
2. Scope of the cooperation
2.1 Party A shall provide with and license Party B to use all the text and
pictures
1
<PAGE>
contained in the database of Party A (website: doc.china110.com) which have
been provided and censored by the Publicity Unit of the Ministry of Public
Security and the public security authorities across the country within the
term of this Agreement. Pursuant to the relevant notice issued by the
Publicity Unit of the Ministry of Public Security, Party A is entitled to
edit or delete such information and will duly inform Party B of such
editing or deletion. Party B has the obligation to duly amend and delete
such information.
2.2 Party A shall provide and license to Party B the contents in its database
(website: doc.china110.com) and in such manner as specified in the
"Information Usage Proposal" (Appendix 1) executed by both parties. Any
changes to the "Information Usage Proposal" must be agreed upon in writing
by both parties.
2.3 Party A shall provide the "PRC Police Affairs Report" SMS value added
application services and the SMS products and services of Party B to mobile
phone users through the wireless SMS platform and the Monternet channel of
Party B. Party A shall provide and license to Party B the contents in its
database (website: doc.china110.com) and in such manner as specifiedin the
"SMS Application and Cooperation Proposal" (Appendix 2) executed by both
parties. Any changes to the "SMS Application and Cooperation Proposal "
must be agreed in writing by both parties.
2.4 Party B shall provide the text link of the Maya shop's website belonging to
Party A to the Online shopping sections or channels of the home page of the
TOM website. The title of the text link is "audio and video" and is linked
to http://www.cnmaya.com.
2.5 Party B shall pay the Information fees to Party A in accordance with the
agreed terms of this Agreement.
2.6 On the basis of the contents cooperation, both parties may further
cooperate based on the respective strong promotional activities or profit
making projects of both parties to ultimately establish a strategic
alliance. Further cooperation projects can be executed through
supplementary agreements entered into between both Parties.
3. Fees and terms of payment
3.1 Party B shall pay to Party A the Information fees in an aggregate of
Renminbi six hundred thousand (RMB600,000) exclusive of SMS sharing amounts
incurred from SMS value-added application services of the "PRC Police
Affairs Report" (Appendix 2) as mentioned in Article 2.3 of this Agreement.
3.2 Payment schedule: Party B shall pay to Party A the Information fees on a
quarterly basis, that is Renminbi one hundred and fifty thousand
(RMB150,000)
2
<PAGE>
to be paid by January 25, 2003, Renminbi one hundred and fifty thousand
(RMB150,000) by April 15, 2003, Renminbi one hundred and fifty thousand
(RMB150,000) by July 15, 2003 and Renminbi one hundred and fifty thousand
(RMB150,000) by October 15, 2003.
3.3 Form of payment: wire transfer.
3.4 Upon receipt of the payments from Party B, Party A shall issue receipts
with legal effects in favour of Party B.
3.5 In case of overdue payment, Party A shall impose a late payment penalty on
Party B, which is calculated as 0.05% of the overdue payment for each day
of late payment, and Party A shall have the right to cease the provision of
Information on its side. If the payment is one month overdue, Party A shall
have the right to cease the implementation of this Agreement and is
entitled to claim against Party B in accordance with laws.
4. Disclaimer
4.1 Users may obtain the Information from visiting TOM website. If the Users or
third parties use, amend, interpret, download or forward the Information in
any manner during the course of the reasonable use of the Information by
Party B within the scope of this Agreement, Party B or the owner of TOM
website is not held liable to Party A. In the event that the Users or third
parties commit the above-mentioned act, Party B and the owner of TOM
website shall notify Party A in a timely manner. Party B shall not
authorize, or permit/agree, explicitly or implicitly, the Users or any
third party to commit the above-mentioned actions, otherwise Party B shall
be liable accordingly.
5. Representation and Warranties
5.1 Both parties warrant that they have the right and ability to enter into and
perform this Agreement.
5.2 Party B warrants that the Information shall only be used in and for TOM
website and it shall not authorize other media or any other third parties
to use it.
5.3 Party A warrants that the use by Party B and TOM website of the Information
provided by Party A in accordance with the provisions of this Agreement
shall not constitute an infringement of any third party rights. Party A
also warrants that the execution and performance of this Agreement shall
not constitute a breach or an infringement of any third party rights, nor
shall Party B or the owners of TOM website be held liable to any third
party.
3
<PAGE>
5.4 Party A shall be liable for the settlement and damages for all the losses
so suffered by Party B in respect of any disputes, complaints, claims and
litigations arising from the breach of any laws and regulations or the
infringement of legal interests, including but not limited to an
infringement of copyrights of author and/or other intellectual property
rights of any third parties by the Information provided by Party A.
5.5 Party B shall be liable for the settlement and damages for all the losses
so suffered by Party A in respect of any disputes, complaints, claims and
litigations, arising from using the Information provided by Party A in a
manner beyond the scope of this Agreement by Party B.
6. Term
6.1 This Agreement shall be valid for one year commencing from January 1, 2003
and expiring on December 31, 2003. Any renewal or modification shall be
negotiated at the will of both parties within 30 days prior to the
expiration date.
6.2 During the term, either party is entitled to an early termination of this
Agreement by giving a written notice 30 days in advance but the party
giving notice would lose this right in case of a breach of contract. If
Party B issues an early termination notice, it is still required to pay the
information fee of the formerly used information pursuant to the provisions
in the Agreement.
6.3 Upon termination of this Agreement, Party B may keep the Information
contents provided by Party A, which is already being used on the TOM
website, remaining on the TOM website.
7. Intellectual Property Rights
7.1 Party A owns the intellectual property rights of the original Information
provided by it.
7.2 Except for the purpose of the Agreement, either party shall not use or
reproduce the trademarks, logos, commercial messages, technologies and
other data of the other party without the prior written consent from the
other party.
8. Default
8.1 Both parties shall properly exercise their rights and duly perform their
obligations so as to ensure a smooth implementation of this Agreement.
8.2 In case of a breach of any provision under this Agreement by either party,
the defaulting party shall be liable for the economic losses (if any),
direct and indirect, suffered by the other party.
4
<PAGE>
9. Confidentiality
9.1 Without permission of the other party, either party is prohibited from
disclosing to any third parties (other than as required by the relevant
laws, regulations, governmental departments, stock exchanges or other
regulatory authorities and the legal, accounting, business and other
advisors and employees of both parties) any terms and the status of
execution and performance of this Agreement and any information related to
the other party and the affiliates of the other party obtained by executing
and performing the Agreement.
9.2 This clause of confidentiality shall remain effective during the term of
this Agreement and upon its expiry.
10. Force Majeure
10.1 "Force majeure" refers to any events, including but not limited to acts of
government, acts of God, wars or any other similar events, which could not
be reasonably controlled, unforeseen or unavoidable even it could be
foreseen and which hinder, affect or delay the performance of obligations,
in whole or part, by any party under the Agreement.
10.2 Upon occurrence of any force majeure, the knowing party shall notify the
same in writing the other party timely and adequately. It shall also advise
the other party of the potential effects of the same on this Agreement and
shall provide relevant evidence within a reasonable period of time.
10.3 Both parties shall not be held liable for default on the failure or delay
in performance of this Agreement, in whole or in part, caused by the force
majeure as mentioned above.
11. Settlement of Disputes and Governing Laws
11.1 Any disputes in connection with the content or the implementation of this
Agreement shall be settled through friendly negotiation, failing which,
either party shall have the right to submit the case to the competent
People's Court in the PRC for litigation.
11.2 The execution, implementation and interpretation of this Agreement and the
settlement of disputes shall be governed by the applicable laws of the PRC.
12. Miscellaneous
12.1 The respective headings of this Agreement and the articles are for the sake
of convenience and not for the interpretation of the Agreement.
12.2 This Agreement shall be made in duplicate with the same legal effects.
12.3 The notes, appendices and supplements to this Agreement are integral parts
5
<PAGE>
hereof and shall have the same legal effects with this Agreement.
12.4 Any matters not covered by this Agreement shall be settled through friendly
negotiation between the parties hereto.
[No text after this line---]
Shanghai Maya Online Broadband Network Beijing Lei Ting Wan Jun Network
Company Limited Technology Limited
Seal: (chop affixed) Seal: (chop affixed)
Authorized representative:
Authorized representative:
Date:
Date:
Contact Person:
Contact Person: Dong Nawei
Contact No.:
Contact No.: 010-65283399-6225
Fascimile No.:
Fascimile No.: 010-85181206
E-mail Address:
E-mail Address: [email protected]
Correspondence Address:
Correspondence Address: No. 1 East Chang
An Avenue, Dongcheng District, Beijing
Postal Code:
Postal Code: 100738
6
<PAGE>
Appendix 1
Information Proposal
1. Party A shall provide with and license Party B to use all the text and
pictures contained in the database of Party A (website: doc.china110.com)
which have been provided and censored by the Publicity Unit of the Ministry
of Public Security and the public security authorities across the country
within the term of this Agreement. Pursuant to the notice given by the
Publicity Unit of the Ministry of Public Security, Party A shall have the
right to edit and delete the relevant Information and Party A shall at the
same time notify Party B in a timely manner, and Party B shall be obliged
to amend and delete the relevant Information.
2. During the term of this Agreement, Party A license Party B to obtain the
Information mentioned in the preceding clause from Party A's database.
Party A warrants that no less than 50 messages will be updated and provided
every day (other than Saturdays, Sundays and national public holidays)
through Party A's database.
3. Party A may place the logo or text of TOM website under the position of
cooperation partner on the corresponding page of its website, and being
linked to www.tom.com.
4. When distributing the Information provided by Party A, TOM website should
specify that Party A is the supplier of the Information, and Party B should
put the logo and text link of Party A under the position of cooperation
partner on the main page of TOM website's news channel (at news.tom.com),
and being linked to www.china110.com.
5. When using the Information provided by Party A in accordance with the
provisions of this Agreement, Party B should specify the author of such
Information. Party B may not specify if the Information does not have any
explicit author, except that the supplier of the Information should be
specified as Party A.
6. Party B may perform simple editing, but no substantial changes could be
made, on the Information provided by Party A according to the layout of TOM
website. Party B shall be liable for the substantial changes made to the
Information provided by Party A.
7
<PAGE>
Appendix 2
SMS Application and Cooperation Proposal
A. Contents of Cooperation
1. The handset users are provided with the news of renowned "PRC Police
Affairs Report" by both parties in a timely and efficient way.
2. During the broadcast of "PRC Police Affairs Report", Party A shall be
responsible for the delivery of "PRC Police Affairs Report" SMS
service on the basis of rolling substitles or by oral presentation by
anchors, and the promotion contents of SMS products and services of
Party B.
3. The rolling subtitles of promotional SMS services delivered in each
episode of "PRC Police Affairs Report" shall appear not less than 2
times and shall not be less than 10 seconds for each occasion time
appearance of rolling subtitles.
4. The form of cooperation: the interviews and editing on contents and
promotion of television media are to be undertaken by Party A, and the
SMS channels, technologies, fees, settlement and customer services and
certain marketing activity are to be undertaken by Party B.
5. Party A shall be responsible for the interviews and editing on news of
"PRC Police Affairs Report", and guarantee the legality of the
Information source.
6. Party B shall provide all the technical support for SMS.
7. Party B shall be responsible for connecting the system connection of
Party A.
8. Both parties shall jointly undertake marketing activities of the
project.
9. Profits generated from the project shall be shared among both parties.
B. The Responsibilities and Obligations of Party A
1. Party A will provide the "PRC Police Affairs Reports" SMS value added
application services and the SMS products and services of Party B to
handset users through the wireless SMS platform and the Monternet
channel.
8
<PAGE>
2. Party A will edit on the contents of "PRC Police Affairs Reports" in
accordance with the requirement determined by negotiation of both
parties.
3. During the broadcast of "PRC Police Affairs Report", Party A shall be
responsible for promotion on the basis of rolling substitles or by
oral presentation by anchors, such as transmission of "xxx" to 8001 to
subscribe other "PRC Police Affairs News" SMS service, transmission of
"0" to 8001 to subscribe other SMS services.
4. So long as Party B is abode by this contract, Party A shall not
refuse, reduce or cancel the promotion activities on the basis of the
rolling subtitles for Party B for any reason, nor shall it change the
text contents of rolling subtitles provided by Party B.
5. Party A shall provide any episode of programme of "PRC Police Affairs
Reports" to Party B in random each month.
C. Responsibilities and Obligations of Party B
1. Party B shall provide Party A with the Monternet SMS channel.
2. Party B shall provide Party A with the interface of the system and
Party A shall take the interface provided by Party B as standard. In
order to cope with the business development of such cooperation
project, billing modules (the number of subscribed users and
circulation statistics) should be maintained. Party B shall develop
the modules (the number of subscribed users and circulation
statistics), and both parties shall run a trial test on the billing
module with reference to the business status, and shall jointly
confirm the billing module.
3. Party B shall be responsible for the development of the back office
statistics application programme for the users, and provide Party A
with a real-time enquiry interface enabling Party A to undertake
real-time enquiry on the daily number of subscribed and of
unsubscribed users so as to facilitate financial reconciliation and
settlement.
4. Party B shall be responsible for system tuning, technical maintenance
and relevant personnel training of the wireless SMS platform to
satisfy the need of wireless SMS business of Party A.
5. Party B shall be responsible for summarising and editing the text
provided by Party A and transmitted the text to handset users, whereas
that the contents of the summarised and edited text shall not undergo
any substantial change. Party B will be solely responsible for the
contents of the edited text.
6. Party B shall be responsible for the accounting reconciliation and
settlement with the mobile service operators and notify Party A of the
reconciliation results
9
<PAGE>
in writing.
D. Appropriations and Bill Settlement
1. The revenue of the "PRC Police Affairs Reports" SMS products shall be
distributed among both parties in the ratio of 5:5, that is both
parties are entitled to 50% of the revenue. The sharing ratio is
calculated based on the net profit of monthly revenue (representating
the total revenue net of China Mobile (or China Unicom) handling
charges and communication costs collected on behalf of other) from the
businesses mentioned in this agreement. Currently, the handling
charges collected by China Mobile is 15%, the cost of SMS
communication is RMB7 cents per message and the handling charges
collected by China Unicom is 12%. The SMS communication cost is not
charged for the moment.
2. The charging basis of "PRC Police Affairs Reports" SMS products shall
be: 1. monthly package: $2 to $20; 2. single message payment: $0.1 -
$2.
3. Settling time: both parties shall settle once a month. Party B shall
transfer the amount of the preceding month to Party A's designated
account within 15 days from the end of each month, and Party A shall
then duly issue receipt in favour of Party B.
4. Upon receipt of the invoices from China Mobile and China Unicom, Party
B shall send the billing statement, which is separately calculated by
Party B according to the billing statements provided by China Mobile
and China Unicom, of the cooperation project of both parties to Party
A for verification. If China Mobile and China Unicom fail to provide
the billing statements, payments shall be charged based on data of
Party B.
5. Where China Mobile and China Unicom fail to settle with Party B on
time and so causes the settlement between both parties to delay, the
acts of Party B shall not be deemed as a breach of this contract and
both parties shall otherwise negotiate for the resolution.
6. When there is any change in the charging basis of China Mobile and
China Unicom, both parties shall re-negotiate the appropriations in
written form in accordance with the corresponding provisions issued by
the "Monthenet" of China Mobile and "UNI-info" of China Unicom.
10