Exhibit 10.12
EMPLOYMENT AGREEMENT
PARTY A: FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD., ("PARTY A")
PARTY B: [ ], with his/her identity card No. [ ] ("PARTY B")
In accordance with the Labor Law of the People's Republic of China, Regulations
of Labor Contract in Shanghai Municipality and other applicable laws and
regulations (the "LABOR REGULATIONS"), in the principle of equality, voluntary
participation and mutual benefit, the Parties hereby enter into this Agreement
as follows:
1. TERM AND PROBATION PERIOD
1.1 The term of this Agreement shall be one (1) year, commencing from [ ]
to and ending on [ ], in which there shall be a probation period of [ ]
(the "PROBATION PERIOD").
1.2 Either Party may, one (1) month prior to the expiration of this
Agreement, notify the other Party in writing of its intention to extend
the term of this Agreement.
1.3 Upon written confirmation by the Parties, this Agreement may be renewed
or extended to the date as specified in such written confirmation
document.
1.4 Prior to the execution of this Agreement, Party A shall have the right
to request Party B to present its updated health certification or
satisfactory physical check certificate issued by district level
hospital. During the Probation Period and the term hereof, if Party A
finds out that Party B held back, prior to the date hereof, ay material
fact about its health conditions, such as it has been suffering from
hepatitis B, infectious diseases, chronic diseases, etc., Party A shall
have the right to terminate this Agreement, with only the salary of the
current month to be paid to Party B.
1.5 This Agreement may be terminated pursuant to Article 9 and other
relevant provisions hereof.
2. BUSINESS DAYS AND WORKING TIME
2.1 The normal working time shall not be less than eight (8) hours for each
business day, i.e., from 9:00 am to 6:00 pm.
3. RESPONSIBILITIES AND OBLIGATIONS OF PARTY B
3.1 The General Manager of the Company shall supervise and guide Party B in
its work. Party B shall carry on its work according to the directions
of the management.
3.2 Party B shall work in the Department of [ ], with is position as [ ].
Upon engagement, Party B will be given an account of its
responsibilities on the work position it is going to assume, which will
explain in details Party B's work content, arrangement and the
requirement of Party A for such work position.
3.3 Party B shall obey and comply with any directions given by Party A for
the change of Party B's work position, as Party A deems necessary in
view of work requirements of the Company.
3.4 Party B shall observe Party A's various internal management rules and
regulations, and shall comply strictly with the safety rules set forth
by Party A in its work.
4. LABOR PROTECTION AND WORKING CONDITIONS
Party A shall provide Party B with the labor protection and working
conditions in accordance with the Labor Regulations.
5. CONFIDENTIALITY AND NON-COMPETITION
5.1 During its employment by Party A, Party B shall be subject to Party A's
prior written approval for any concurrent work it intends to assume
other than with Party A. Approval by Party A of one occasion shall not
be deemed as approval of any other occasions, which shall be subject to
approval on a case to case basis. Party A retains the right to cancel
at any time any prior approval if it deems that such concurrent work
affects Party B's work performance.
5.2 During the period when Party B is employed by Party A and renders
services to Party A, in case that Party B works out and develops any
technology (the "Technology"), any and all copyright, patent, know-how
or intellectual property (the "IP") or any intellectual property right
in relation thereto derived from the Technology shall belong to Party
A, or to a third party (the "THIRD PARTY") according to the relevant
contract entered into between the Third Party and Party A. The
Technology shall include, but not be limited to, computer processes,
computer codes, relevant materials, such processes, codes and materials
as being improved, and other materials of whatever form and medium
which are designed, developed, researched, compiled, created,
implemented, delivered or installed by Party B during its employment by
Party A and service-rendering to Party A. Party B hereby waives any and
all of its either current or potential rights to and interests in the
Technology. Party B undertakes that such waiver shall survive the
termination of its employment by Party A.
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5.3 During the period when Party B is employed by Party A and renders
services to Party A, in case that Party B works out and develops any
documentation (the "DOCUMENTATION"), any and all intellectual property
or any intellectual property right in relation thereto derived from the
Documentation shall belong to Party A or the Third Party. The
Documentation shall include, but not be limited to, manuals for the
Technology, on-line help documents for the Technology, notes contained
in the source code, all other materials in whatever form for the
description of the purpose or operation of the Technology or other
content related thereto, and such above items as being improved. The
Documentation shall also include, to the extent applicable and in
existence, all other materials in whatever medium which are related to
the design and creation of the Technology. Party B hereby waives any
and all of its either current or potential rights to and interests in
the Technology. Party B undertakes that such waiver shall survive the
termination of its employment by Party A.
5.4 Party B shall not, during its employment or upon expiration thereof by
Party A, disclose, divulge, use or allow other individuals or entities
to use the Technology and/or Documentation or any part thereof, whether
or not Party B gains benefits thereby. Unless required by Party A
during its employment, Party B shall not, during its employment or upon
expiration thereof by Party A, otherwise exploit, develop or create
Technology and/or Documentation on the basis of the original Technology
and/or Documentation, nor shall it disclose, divulge, use or allow
other individuals or entities to use such Technology and/or
Documentation, whether or not Party B gains benefits thereby.
5.5 Party A's records and information are and shall remain all the time of
a confidential nature during Party B's employment or upon expiration
thereof by Party A, and Party B shall deal with the same appropriately,
and will be dismissed immediately if it is found to be in violation of
the preceding provision. Party B shall not take, without being given
special approval by the management, any business data, files,
documents, electronic information or copies thereof away from the work
place of Party A. Upon termination of its employment, Party B shall
return all data or copies thereof in relation to Party A's business
back to the management.
5.6 During the twelve (12) months after the end of Party B's employment by
Party A, Party B shall not engage in business competition in the same
industry, i.e., Party B may not work in any entity that practices
business such as advertisement agency, operation or advertisement
publication, or provide consultancy services to such entities, nor
shall Party B carry on the above advertisement business in the form of
a company by itself or jointly together with others.
5.7 Party B agrees that, once it is found in violation of the above
provision of non-competition, Party A shall have the right to demand
compensation from Party
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B, with the liquidated damages to be twice in amount of Party B's
annual salary when it was employed by Party A, for its violation of
such provision of non-competition.
6. TRAINING
Party A may provide Party B with training when Party A deems necessary.
The Parties shall execute a mutually agreed training agreement, which
will specify the training items to be provided by Party A or to be paid
by Party A for their costs, and will constitute an integral part of
this Agreement or the contract to be entered into for the purpose
hereof.
7. HOLIDAYS/LEAVES
7.1 Party B shall be entitled to holidays such as Saturday and Sunday each
week and other public holidays.
7.2 During the term of this Agreement, Party B shall be entitled to paid
leaves pursuant to the rules and regulations of Party A.
7.3 Party B may take sick leave when it is supported by diagnosis records
and sick leave certification issued by medical professionals or
hospitals acceptable to Party A.
8. REMUNERATIONS AND SOCIAL BENEFITS
8.1 During its employment by Party A, Party B shall be paid a monthly
salary (before tax) in amount Renminbi [ ] (the "SALARY").
8.2 Party A shall provide Party B with such social benefits as public
accumulation fund, medical insurance, etc. pursuant to the relevant
provisions of the Labor Regulations, with any part thereof payable by
Party B to be withheld and paid by Party A from Party B's Salary.
8.3 In case that Party B falls sick, it may get part of its relevant
medical costs reimbursed upon presentation of valid medical cost
receipts issued by hospitals.
9. AMENDMENT TO AND TERMINATION OF THIS AGREEMENT
9.1 In case of change in circumstances that affect materially the
performance of this Agreement, the Parties may amend this Agreement
through consultation upon mutual agreement.
9.2 Party A may terminate this Agreement upon any of the following
situations:
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(1) At Party A's discretion, Party B fails to meet with the formal
employment requirements during its Probation Period;
(2) Party B remains unable to work after the period of its sick
leave as stipulated in the Labor Regulations for its illness
or non-work related injury;
(3) the condition on the reliance of which this Agreement is
initially entered into changes materially, which makes the
Parties unable to perform their respective obligations
hereunder, while the Parties fail to agree upon the amendment
to the terms and conditions of this Agreement.
9.3 If Party A decides to terminate this Agreement pursuant to Article
9.2(2) and (3), Party A shall notify Party B thereof in writing three
(3) months in advance, or pay Party B an amount of three (3) months
Salary in lieu of such prior notice.
9.4 Party A may terminate this Agreement immediately in case that Party B
is found:
(1) to have committed deceptive acts when it applies to Party A
for employment;
(2) to take away, without Party A's prior approval, any of Party
A's properties, or to commit theft on the information of the
Technology;
(3) to have caused material economic losses to Party A, whether
intentionally or by negligence;
(4) to have violated in a material way Party A's staff manual or
other provisions;
(5) to have embezzled, stolen or misappropriated Party A's assets
or assets of Party A's other staffs;
(6) to have rendered services to other employers with prior
consent of Party A;
(7) to have disclosed or divulged to any individual or entity any
Technology, Documentation or Party A's proprietary information
or secrets; or
(8) to have violated in a material way any of the provisions
hereof.
In case that Party B is dismissed due to any of the above
circumstances, Party A shall have the right not to pay any economic
compensation to Party B.
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9.5 In case that Party B wishes to terminate this Agreement for justified
reasons, it shall notify Party A thereof in writing at least three (3)
months in advance.
9.6 In case of any of the following events, this Agreement shall be
terminated immediately: (a) Party B is dispatched to labor education or
is imposed a criminal liability; or (b) Party A no long carries on its
business operation.
10. COMPENSATION AND INDEMNIFICATION
10.1 Party B shall hold harmless and indemnify Party A for any and all
losses resulting from Party B's violation of this Agreement, or
violation of such provisions hereof in respect of the IP and/or
Technology and/or Documentation or Party A's discipline.
10.2 In case that Party B terminates this Agreement, Party B shall
compensate Party A for the training and recruitment costs stipulated in
the training agreement (if any) otherwise entered into by the Parties.
11. DISPUTE RESOLUTION
11.1 Any disputes arising from the implementation of this Agreement or in
connection therewith shall first be settled through consultations
between the Parties according to the Labor Regulations; failing it,
such disputes shall be submitted to the local labor dispute arbitration
commission where Party A is domiciled for arbitration. The Party
unsatisfied with the arbitration award shall have the right to lodge a
suit to the court in Shanghai for judgment. Unless otherwise decided in
the award, the losing Party shall bear all costs in relation to the
arbitration and subsequent litigation process.
12. OTHERS
12.1 In case that there is any conflict between any provisions of this
Agreement and the Labor Regulations or labor rules in Shanghai
Municipality, such provisions of this Agreement shall be null and void,
provided that the invalid provisions shall not affect the effect of
this Agreement.
12.2 This Agreement shall become effective upon signature by the Parties.
12.3 Anything not covered herein shall be dealt with by the Parties through
consultations between them in accordance with the Labor Regulations.
IN WITNESS HEREOF, this Agreement is executed in duplicates, with each of the
copies equal in legal force and each to be kept by Party A and Party B.
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This Agreement is formally executed by the Parties on [ ], 200[ ].
PARTY A: FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD.
Signed by: ________________________________________
Name:
Position: Authorized Representative
PARTY B:
Signed by: ________________________________________
Name:
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