EXHIBIT 4.5
EXCLUSIVE TECHNICAL AND CONSULTING SERVICES AGREEMENT
This Exclusive Technical Consulting and Services Agreement (the "Agreement"),
dated February 25, 2005, is entered into at Beijing by and between the following
two parties (the "Parties)].
Party A: KongZhong Information Technologies (Beijing) Co., Ltd.
Party B: Beijing AirInbox Information Technologies Co., Ltd.
WHEREAS,
1. Party A, a wholly foreign-owned enterprise incorporated in People's
Republic of China (the "PRC", for purpose of this Agreement, excluding Hong
Kong, Macao and Taiwan), owns resources to provide the technical and
consulting services.
2. Party B, a wholly domestic-owned limited liability company incorporated in
the PRC, is licensed by relevant government authorities to engage in the
internet information service value-added telecommunication service;
3. Party A agrees to provide technical consulting and relevant services to
Party B in accordance with the Agreement from January 1, 2005 to February
28, 2005.
4. Party A agrees to provide technical consultation and relevant services to
Party B and Party B agrees to accept such technical consultation and
services;
WHEREAS, Party A and Party B, through friendly negotiation and based on equality
and mutual benefit, enter into the Agreement as follows:
1. TECHNICAL CONSULTING AND SERVICES; OWNERSHIP AND EXCLUSIVE INTERESTS
1.1 During the term of this Agreement, Party A agrees to provide relevant
technical consultation and
services to Party B (the content is specified in Appendix 1) in accordance
with the conditions provided by the Agreement.
1.2 Party B hereby agrees to accept such technical consultation and services.
Party B further agrees that, during the term of this Agreement, it shall
not accept technical consultation and services for above-mentioned business
provided by any third party unless consented by Party A with a written
notice in advance.
1.3 Party A shall be the sole and exclusive owner of all rights, title,
interests and intellectual property rights arising from the performance of
this Agreement, including but not limited to, any copyrights, patent,
know-how, commercial secrets and others, whether developed by Party A or
Party B based on Party A's intellectual property.
1.4 Party B promises that Party A has the priority on cooperation with party B
under same conditions in case Party B is going to cooperate with other
enterprises in respect of any business.
2. CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL CONSULTATION AND SERVICES
(THE "FEE")
2.1 The parties agree that Party B shall pay Party A the fee of RMB10 million
for technical consultation and services provided by Party A to Party B for
the period from January 1, 2005 to February 28, 2005. Party B shall pay
such fee to Party A within 15 days upon receipt of payment notice given by
Party A.
3. REPRESENTATIONS AND WARRANTIES
3.1 Party A hereby represents and warrants as follows:
3.1.1 Party A is a company duly registered and validly existing under PRC
laws;
3.1.2 Party A shall perform this Agreement within its corporation powers
and scope of business. Party A has obtained all necessary
authorizations, and consents or approvals of any other third parties
or government authorities to perform the Agreement. The performance of
this Agreement shall not be in violation of any binding
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or effective laws or contracts;
3.1.3 The Agreement, upon execution, will constitute a legal, valid and
binding agreement of Party A enforceable against Party A.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a company duly registered and validly existing under PRC
laws and is licensed to engage in the value-added telecommunication
service.
3.2.2 Party B shall perform this Agreement within its corporation powers
and scope of business. Party B has obtained all necessary
authorizations, and consents or approvals of any other third parties
or governmental authorities to perform the Agreement. The performance
of this Agreement shall not be in violation of any binding or
effective laws or contracts;
3.2.3 The Agreement, upon execution, will constitute a legal, valid and
binding agreement of Party B enforceable against Party B.
4. CONFIDENTIALITY
4.1 The Parties agree to take various reasonable measures with best efforts to
protect and maintain the confidentiality of the confidential data and
information (the "Confidential Information") learned or contacted by the
Parties in the exclusive consulting and services, and shall not disclose,
give or transfer any Confidential Information to any third party without
prior written consent of the other Party. Upon termination or expiration of
this Agreement, the Parties shall, at the request of the other Party,
return any documents, information or software containing any of
Confidential Information to the owner or destroy it, and delete any such
Confidential Information from any memory devices, and cease to use such
Confidential Information. The Parties shall take necessary measures to
disclose the Confidential Information only to the employees, agents or
professional consultants of Party B who need to know such information and
cause them to observe the confidential obligations hereunder.
4.2 The limitation stipulated in Section 4.1 shall not apply to:
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4.2.1 the materials available to the public at the time of disclosure;
4.2.2 the materials that become available to the public after the
disclosure not due to the fault of Party B;
4.2.3 the materials Party B proves to have got the control neither directly
nor indirectly from any other party before the disclosure;
4.2.4 the information that the parties disclosed to the relevant government
authorities, stock exchanges or other institutions in accordance with
the applicable law and the information that the parties disclosed to
their direct legal counsels or financial consultants upon the need of
normal business operations.
4.3 Both Parties agree that this article shall survive the modification,
elimination or termination of this Agreement.
5. INDEMNITY
5.1 Party B shall indemnify and hold Party A harmless from any losses, damages,
obligations and fees resulting from any litigation, claims or other request
against Party A which occurs or is caused by the content of the
consultation and services that Party A provides to Party B at Party B's
request.
6. EFFECTIVE DATE AND TERM
6.1 This Agreement shall be executed and come into effect as of the date
specified in Article 6.2.
6.2 The effective term of this Agreement is from August 1, 2005 to September
30, 2005. This Agreement can be renewed in case that both parties wish to
continue the cooperation on the expiration date.
7. TERMINATION
7.1 This Agreement will be terminated on the expiration date stipulated in
Article 6.2 of this Agreement.
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7.2 During the term of this Agreement, Party B shall not terminate this
Agreement. Party A may terminate this Agreement at any time with a written
notice to Party B 30 days before such termination. If Party A terminates
the Agreement in advance due to Party B's reason, Party B shall indemnify
Party A all the losses caused thereby to Party A and pay the relevant fees
for the services already provided.
7.3 Subsequent to the termination of this Agreement, the rights and obligations
of both Parties under Article 4 and 5 shall remain effective.
8. DISPUTES RESOLUTION
8.1 The parties shall strive to settle any dispute arising from the
interpretation or performance of this Agreement through friendly
consultation. In case no settlement can be reached through consultation,
each party may submit such dispute to China International Economic and
Trade Arbitration Commission (the "CIETAC"). The arbitration shall follow
the current rules of CIETAC, and the arbitration proceedings shall be
conducted in Chinese and shall take place in Beijing. The arbitration award
shall be final and binding upon both Parties. This article shall survive
the termination or elimination of this Agreement.
8.2 Each Party shall continue to perform its obligations in good faith
according to the provisions of this Agreement except for the matters in
dispute.
9. FORCE MAJEURE
9.1 Force Majeure, means any event that is beyond the party's reasonable
control and cannot be prevented with reasonable care, including but not
limited to acts of governments, acts of nature, fire, explosion, typhoon,
flood, earthquake, tide, lightning or war. However, any shortage of credit,
capital or finance shall not be regarded as an event of Force Majeure. The
affected party who is claiming to be not liable to its failure of
fulfilling this Agreement by Force Majeure shall inform the other party,
without delay, of the approaches of the performance of this Agreement by
the affected party.
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9.2 In the event that the affected party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure, within
the scope of such delay or prevention, the affected party will not be
responsible for any damage by reason of such a failure or delay of
performance. The affected party shall take appropriate means to mitigate or
remove the effects of Force Majeure and try to resume performance of the
obligations delayed or prevented by the event of Force Majeure. After the
event of Force Majeure is removed, both parties agree to resume performance
of this Agreement with their best efforts.
10. NOTICES
Notices or other communications required to be given by any party pursuant
to this Agreement shall be in writing and be delivered by personal
delivery, registered or mail or postage prepaid mail, recognized courier
service or by facsimile transmission to the address of the relevant party
or parties set forth below.
Party A: KongZhong Information Technologies (Beijing) Co., Ltd.
Address: Floor 00 Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Fax: _________
Telephone: _________
Addressee: Yang Ning
Party B: Beijing AirInbox Information Technologies Co., Ltd.
Address: Floor 00-00 Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx
Fax: _________
Telephone: _________
Addressee: Xxxx Xxxxxx
11. ASSIGNMENT
Party B shall not assign its rights or obligations under this Agreement to
any third party without the prior written consent of Party A. Party A may
assign its rights or obligations under this
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Agreement to any third party without the consent of Party B, but shall
inform Party B of the above assignment.
12. SEVERABILITY
Any provision of this Agreement that is invalid or unenforceable because of
any inconsistency with relevant law shall be ineffective or unenforceable
within such jurisdiction where the relevant law governs, without affecting
in any way the remaining provisions hereof.
13. AMENDMENT AND SUPPLEMENT
Any amendment and supplement of this Agreement shall come into force only
after a written agreement is signed by both parties. The amendment and
supplement duly executed by both parties shall be part of this Agreement
and shall have the same legal effect as this Agreement.
14. GOVERNING LAW
The execution, validity, performance and interpretation of this Agreement
shall be governed by and construed in accordance with the PRC laws.
IN WITNESS THEREOF THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE DULY
EXECUTED ON THEIR BEHALF BY A DULY AUTHORIZED REPRESENTATIVE AS OF THE DATE
FIRST SET FORTH ABOVE.
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PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized Representative:
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PARTY B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
Authorized Representative:
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APPENDIX 1: THE LIST OF TECHNICAL CONSULTATION AND SERVICES
Party A shall provide technical and consulting services as follows:
1. maintenances of the machine room and website;
2. provision and maintenances of the office network;
3. integrated security services for the website;
4. design and implementation of the integrated structure of the network of the
website, including the installation of the server system and 24 hours'
daily maintenances each week.
5. development and test of new products;
6. marketing plan of new products;
7. conception, creation, design, update and maintenance of the web pages;
8. maintenance of the clients service platform;
9. training of the employees;
10. study and analysis on market;
11. public relationship service
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