Exhibit 10.33
[Translation of Chinese original]
Wireless Interactive Voice Response Services Agreement
Contract No. 001
Party A: Beijing Mobile Communication Co., Ltd.
Authorised representative: Sha Yuejia
Address: 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx District
Beijing
The People's Republic of China
Postal code: 100027
Tel: 00000000
Fax: 00000000
Banker:
Bank account:
Party B: Beijing Lei Xxxx Xx Ji Network Technology Limited
Authorised representative: Wang Leilei
Correspondence Address: 0/X Xxxxx 0
Xxxx Xxxxx
Xxxxxxxx Xxxxx
1 Dongchangan Avenue
Dongcheng District
Beijing
Registered Office Address: Xxxx 000 Xxxxx X,
00 Xxxxxx Xxxxx Xxxx,
Xxxxxxx Economic and Technology Development Zone,
Beijing
The People's Republic of China
Postal code: 100738
Tel: 00000000
Fax: 00000000
Banker: China Merchants Bank, Oriental Plaza sub-branch
Bank account: 0000000000000
Beijing Mobile Communication Co., Ltd. (hereinafter "Party A") is a mobile
telecommunications operator and mobile data service provider, which provides an
open telecommunication platform for service providers. Beijing Lei Xxxx Xx Ji
Network Technology Limited (hereinafter "Party B") is a value-added
telecommunications service provider authorised by the telecommunications service
regulatory authority to provide voice value-added service to mobile users. To
provide better services to their users, Party A and Party B enter into this
agreement through thorough and arm's length negotiation on a mutual and
cooperative basis to jointly undertake an Interactive Voice Response
(hereinafter "IVR") business on the following terms:
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Clause 1 Basic Description of the Cooperation Services
(A) Conditions
(1) Party B must be in full compliance with the requirements of Order (No. 292)
"Regulations on Administration of Internet Content/Application Services"
promulgated by the State Council of the People's Republic of China
(hereinafter the "PRC"), is qualified to provide internet content services
with a well-established after-sale service system and legal and reliable
sources of contents and other necessary resources for its operation.
(2) Party B shall provide to Party A detailed statement of its operation and
its proposal on marketing strategy. (Details of Party B's operation are set
out in Annex 1)
(3) During the early stage of development, Party B shall provide various
content services and application services to the users of "GlobaLink" and
"Shenzhouxing" of China Mobile Communication Corporation (hereinafter
"China Mobile"). Party B shall provide IVR services to the users of
"GlobaLink" and "Shenzhouxing" of China Mobile through Party A's short
message channels and voice message channels.
Clause 2 Rights and Obligations of Party A
(A) Party A shall allow Party B access to its short message gateway and
switcher for the provision of value-added short messaging and voice
services. Party A may regulate the traffic of such voice and short messages
in accordance with the capacity of its switcher or short message centre. If
the regulation would affect the services of Party B, Party A shall promptly
notify Party B in advance.
(B) Party A shall provide Party B access number(s) 1259068xx and the relevant
switch port(s) for the IVR services. Party A shall guarantee the stability
of the access number(s). The availability of such access number(s) concurs
with the term of this agreement. If Party A intends to withdraw the access
number(s), it shall give one month's written prior notice to Party B. Upon
expiry of three months from the receipt of a written consent thereto from
Party B, Party A shall withdraw the access number(s).
(C) Party A shall provide a well-established GSM mobile communication system
and shall guarantee its stability and availability. Upon receipt of
notification from Party B of any communication problems thereof, Party A
shall promptly remedy the same to avoid any interruption to Party B's
operations.
(D) Party A shall allow Party B access to its technical protocol and switcher
standards of its network. Party A shall also provide Party B all necessary
technical
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documentation for their communication connection and shall assist to solve
in a timely manner any communication problems encountered by Party B in the
process.
(E) Party A shall be responsible for the software and hardware necessary for
its network and shall bear their operating costs.
(F) Party A shall revise its billing system, including the bank's fee
collection system, and shall be responsible for the provision of all
relevant hardware and software.
(G) Party A shall provide billing and fee collection services to Party B and
shall monitor such operation of Party B and ensure the accuracy of fee
calculation. Party A shall promptly deliver the billing details to Party B.
Party A shall issue invoice for such message service to users. Party A
shall also provide fee statement to users upon request.
(H) Party A shall provide all relevant information of the message fee to Party
B after the payment due date for Party B's follow up actions on overdue
accounts.
(I) Party A and Party B shall conduct marketing and promotional activities for
such services jointly.
Clause 3 Rights and Obligations of Party B
(A) Party B shall be responsible for the development and maintenance of its
software and hardware, including but not limited to the testing,
implementation and maintenance of all hardware and systems involved in the
project, business operation, marketing and shall bear the relevant costs.
(B) Party B shall provide the pre-agreed contents and applications to users of
China Mobile. Party B shall ensure that the contents provided are legal,
prompt, and reliable and do not violate any policy, regulation or order of
the State. Party B shall be responsible for any consequence arising from
illegal contents.
(C) Party B shall take necessary measures to deal with overdue accounts. To
ensure the healthy operation of the Monternet, Party B shall refrain from
providing message telecommunications service to overdue accounts.
(D) Party B shall be subject to any reasonable regulation to the traffic of
voice and short messages by Party A under contingent circumstance for the
purpose of maintaining the quality of general voice and short message
communications. Any user disputes arising therefrom shall be resolved as
agreed between Party A and Party B.
(E) During the term of this agreement, Party B may not deliver advertisement or
any other message unauthorised by Party A to users through the
communication channels provided by Party A.
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(F) Party B bears the cost on transmission and monthly usage fee necessary for
the link between Party B's equipment and Party A's network.
(G) During the term of this agreement, Party B shall, at the request of Party
A, provide reports on user base development, profile, preferences and
business forecast before the second calendar day of each month in the form
as set out in Annex 2. Party A has obligations of confidentiality to such
information in accordance with Clause 10.
(H) Party A and Party B shall conduct relevant marketing and promotion
activities jointly. Party B's marketing and promotion activities in Beijing
region is subject to the approval of Party A. Particulars of marketing and
promotion activities shall be separately agreed upon between Party A and
Party B.
Clause 4 Rights and Obligations Distribution
(A) User complaints arising from the contents and services shall be dealt with
by Party B whereas complaints arising from Party A's network shall be dealt
with by Party A. Any complaint arising from communication issues between
Party A and Party B shall be dealt with by the defaulting party (if known).
For communication issues arising from any third party, the compliant shall
be dealt with as agreed between Party A and Party B.
(B) Contents or applications provided by Party B shall not exceed the scope as
set out in Annex 1, failing which Party A shall have the right to revoke
this agreement and Party B shall be responsible for its defaulting
liabilities. Party A has the right to supervise the operation of Party B
and Party B shall cooperate to ensure that its operation does not have
adverse effect to the daily operation of Party A. If the operation of Party
B violates any provision herein resulting in an adverse effect to the daily
operation of Party A, Party A shall have the right to revoke this agreement
and Party B shall be responsible for its defaulting liabilities.
(C) If Party B intends to change the scope of the joint venture contemplated in
this agreement or to adjust the fee of certain services, it shall give a
one-month written notice to Party A. Party A shall give its written consent
to Party B if it agrees to the fee adjustment. If Party A gives written
consent to the change of business scope, Party B shall conduct trial runs
of the new service and shall submit to Party A regular trial run reports.
The new service may not be launched until upon satisfaction of Party A that
it is mature. For details, please refer to Annex 3.
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Clause 5 Fee Structure
(A) The fee structure of the IVR services under this agreement for the mobile
users of Party A is as follows:
(1) For use of services by local calling users:
Peak hours: RMB 0.3/min
Other hours: RMB 0.15/min
Other hours refer to 23:00 - 7:00, time in XinJiang Autonomous Region and
Tibet Autonomous Region shall be adjusted for two hours later.
(2) For use of services by roaming users outgoing calls will be billed based on
RMB 0.5/minute.
(3) Incoming calls are billed pursuant to the current communication tariff.
(4) International roaming users have no access to the IVR services yet.
(5) Usage of services less than one minute is billed for one minute.
(B) The message fee of services under this agreement shall be determined by
Party B. Party B shall apply to the relevant pricing authority for approval
of the fee structure and shall notify Party A of the approved fee structure
promptly. Please refer to the Annex 1 on business description for details.
(C) Note: The IVR services will result in not only a message fee for voice
services but also a short message fee. The management and settlement of the
short message fee of the IVR services are to be handled pursuant to the
Monternet Short Message Services Cooperation Agreement entered into between
Party A and Party B (hereinafter as "Monternet Agreement"). Therefore the
Agreement will only involve the information fee settlement of the voice
service related with the IVR services, information fee referred to in the
context below is directed only to the voice information fee resulted from
the IVR services.
(D) Party A shall provide billing and fee collection services to Party B. The
aggregate IVR-related billing amount of all China Mobile users across the
PRC for each billing month is the accrued message service fee. Party A
shall pay to Party B 70% of the accrued message service fee (excluding
short message fee which shall be dealt with according to Paragraph D of
this clause) and shall bear the risk of uncollectible fee.
Clause 6 Settlement
(A) Place of settlement: to be established pursuant to the request of Party A.
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(B) Settlement:
Party B's equipment connects to Party A's switcher through the E1 port. Charged
message shall be counted on the basis of the records of the switcher of Party A
as follows:
(1) The fee calculation period shall commence at 00:00 on the first day and end
at 24:00 on the last day of each month. The fee shall be calculated monthly
during the period from the 15th to 20th calendar day of each month for the
fee incurred in the last fee calculation period. Party A shall calculate
the message fee receivable by Party B and unequal communication
compensation payable to Party A after the billing period for that month and
the result shall form the basis of settlement between both parties.
(2) Party A shall calculate with its fee calculation system the message fee
receivable for the IVR services and shall pay to Party B 85% of the same
and receive the relevant invoice thereof. Party B shall issue and mail the
invoice to Party A within three days upon receipt of the amount (as
evidenced by post chop).
(3) Party A and Party B shall strictly comply with such requirements on
settlement and fee calculation period. Where any party fails to pay the
required amount as it falls due, a daily penalty of 0.1% of the amount due
shall be payable by the defaulting party to the receiving party. If the
amount remains overdue for over two months despite demand for payment is
made, the receiving party has the right to take legal action therefor and
all legal costs and liabilities so incurred shall be borne by the
defaulting party.
Clause 7 Marketing and Promotion
IVR services form part of the joint operation available under the Monternet
project of China Mobile. The marketing and promotional activities of IVR
services shall be subject to the central coordination of China Mobile, and shall
be jointly devised and conducted and the costs shared by the relevant parties as
follows:
(A) Party B shall cooperate and complement with Party A in the marketing and
promotion of IVR services in a consistent manner and at the same pace.
Marketing and promotion costs shall be equally shared between both parties.
If Party B do not intend to bear such costs, it shall carry out
corresponding promotion activities for Party A on its own website or other
media.
(B) Party B shall prepare the promotional materials and shall be responsible
for the accuracy and validity of such materials. The promotional materials
shall be jointly confirmed by both parties.
(C) Party B shall post the logo of China Mobile and Monternet, the Chinese and
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English names of Beijing Mobile Communication Co., Ltd. in a prominent
place (which generates more hits) of its website with relevant hyperlink to
the websites of Monternet (xxx.Xxxxxxxxx.xxx), China Mobile
(xxx.XxxxxXxxxxx.xxx) and Beijing Mobile Communication Co., Ltd.
(xxx.xxxx.xxx.xx).
(D) In principle, Party A has no obligation to promote the business of Party B,
but will primarily engage in the promotion and building up of the Monternet
brand name. In promoting its Monternet business, Party B shall coordinate
the promotion activities supported by Party A and with Party A's approval
to ensure consistency. Promotional materials so involved shall bear the
China Mobile logo and the Chinese and English names of Beijing Mobile
Communication Corporation Co., Ltd..
Clause 8 Customer Services
To facilitate the use of IVR services, both Party A and Party B shall establish
a long-term reliable, convenient and effective customer service system as
follows:
(A) Party B shall ensure that the users are fully aware of the price, contents
and form of the IVR services before use.
(B) IVR short messages and voice messages to be received by the users are
restricted to those ordered or subscribed by the users or ordered for the
user by other users of GlobaLink. Party B shall ensure that the messages
provided are decent and legal. Party A has the right to inspect the
contents of the IVR services and take necessary enhancement measures.
Details are set out in Annex 3.
(C) Party A shall deal with any user enquires and complaints arising from
communication issues.
(D) In respect of IVR services, the 1860 customer service centre and offices of
Party A shall deal with users' enquires and complaints. Enquires and
complaints in relation to contents and services shall be referred to Party
B.
(E) Party B shall set up a 24-hour hotline with the number (000) 00000000 and
notify its users in its website and promotion materials.
(F) Party B shall assign a dedicated representative(s) to deal with user
complaints on message contents and services and shall resolve the dispute
within 3 days.
Clause 9 Confidentiality
(A) Proprietary Information refers to information developed, invented,
discovered by or transferred to and of value to the disclosing party and
obtained by the other party during the term of this agreement, including
but not limited to business secrets,
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intellectual properties and technical know-hows.
(B) Both parties shall protect the intellectual properties, business secrets
and any other Proprietary Information of themselves or the counterpart.
Unless written consent is given, each party shall keep confidential all
Proprietary Information and may not disclose to any third party the
technical know-hows, trade secrets or any other Proprietary Information of
the other party.
(C) Both Party A and Party B shall keep the particulars of this cooperation and
this agreement confidential. No party may disclose to any third party the
particulars of this cooperation and this agreement without the prior
written consent of the other party.
Clause 10 Defaulting Liabilities
(A) Failure by either party to comply with any provision of this agreement
shall be considered as a default. When a party receives a notice of alleged
default from the other party, the receiving party shall, if the allegation
is found to be valid, take remedial action within 20 days and notify the
other party in writing accordingly. If the receiving party considers that
the allegation is invalid, it shall raise objection or provide explanation
to the other party in writing within 20 days and both parties shall seek to
resolve the matter through negotiation. Where negotiation fails, the matter
shall be resolved in accordance with the Clause of Resolution of Dispute
herein. The defaulting party shall indemnify all financial loss suffered by
the complying party arising from such default.
Clause 11 Disclaimer
(A) If both Party A and Party B or any of them fails to perform or fully
perform their respective obligation under this agreement due to force
majeure, they shall have no defaulting liabilities. The party affected by
the force majeure shall inform the other party with supporting evidence
within 15 days from the occurrence of the same. The party(ies) concerned
shall resume its/their performance of obligation under this agreement once
the effect of the force majeure no longer exists.
Clause 12 Resolution of Disputes
(A) Any dispute arising from this agreement shall be resolved through
negotiation, failing which, either party may submit the dispute to Beijing
Arbitration Commission for arbitration. The arbitration so awarded shall be
final and have binding effect on both parties.
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Clause 13 Term of Agreement
(A) This agreement shall be effective for a period of one year from the date it
is signed and sealed by both parties. With effect from 15 October 2003.
This agreement will be terminated automatically upon settlement of the fee
for November 2004. If neither party presents a termination request in
writing one month before the termination date, the Agreement shall be
extended for one year, i.e. the Agreement shall expire as of November 2005
upon completion of the settlement.
Clause 14 Effectiveness, Modification, Termination and Extension of this
Agreement
(A) This agreement has 56 pages and is in four (4) counterparts. It is given
effect when it is signed and sealed by both parties. Party A shall keep
three copies and Party B shall keep one copy, which have the same legal
effect.
(B) The annex forms an integral part of this Agreement and has the same legal
effect.
(C) During the term of this Agreement, both parties may amend the provisions of
this agreement or terminate the same as agreed. If any party intends to
amend or terminate this agreement, it shall give 30 days' notice to the
other party. Any party who unilaterally terminate this agreement shall be
responsible for any loss so incurred to the other party.
(D) During the term of this agreement, Party B shall not deliver any
advertisement or any other irrelevant messages to users through the
communication channels provided by Party A. In violation of this, Party B
shall compensate any economic loss so incurred to Party A and Party A shall
have the right to terminate this Agreement.
(E) Party B may not deliver any message to users with overdue IVR fee and may
not allow such users to order messages for sending to other users. If Party
B knowingly allow message to be delivered to such users or allow them to
access the IVR services, Party A shall have the right to demand from Party
B compensation of economic loss arising from the outstanding fee and to
terminate this Agreement.
Beijing Mobile Communication Co., Ltd. Beijing Lei Xxxx Xx Ji Network
(sealed) Technology Limited
(sealed)
Authorised representative: ( )
(signed) Authorised representative: ( )
(signed)
Date: 8 October 2003
Date:
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Annex:
1. Business Description and Tariff Information
2. Monthly Statement of Monternet Services
3. IVR Services Management Provisions
4. Monternet Short Message Services Management Memorandum
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Annex 1 Business Description and Tariff Information
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Annex 2 Monthly Statement of Monternet Services
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Annex 3 IVR Services Management Provisions
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Annex 4 Monternet Short Message Services Management Memorandum
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