Exhibit 10.4
Asiainfo Technologies (China)
Limited
Confidentiality and
Non-Competition Agreement
Party A: Name: AsiaInfo
Technologies (China) Limited
Address: Zhongdian Information
Tower, No.6 Zhongguancun South Street, Haidian District, Beijing,
P.R.China
Legal representative: Steve
Zhang
Party B: Name: Jie
Li
Address:
ID card No.:
Party A and Party B mutually
recognize that Party B has the obligation to abide by certain
information security and trade secret laws and regulations. Party A
and Part B acknowledge and agree that any such violation may be
subject to liabilities under certain provisions of Chinese criminal
laws, the relevant sections of which are attached hereto as
Exhibit A .
Party A and Party B mutually
recognize that Party B may have access to or become aware of the
trade secrets of Party A and any Third Party during the employment
of Party B, and that the trade secrets of Party A and / or any
Third Party have significant effect on their competitive advantages
in the market. Party B acknowledges that, if the trade secrets of
Party A and/ or any Third Party are not effectively protected, the
production and operations of Party A and / or any Third Party may
be threatened, and the company may even sustain irrecoverable
losses. Therefore, it is Party B’s obligation to keep the
trade secrets of Party A and / or any Third Party confidential.
Party A and Party B also agree that Party B might have access to
certain Third Party’s business operation system or
telecommunications network and information during the employment,
thus it is also Party B’s obligation to strictly comply with
any Third Party’s operation rules and protect
telecommunications network and information security. In
consideration of the foregoing, Party A and Party B hereby enter
into this agreement in accordance with the current applicable laws
and regulations of the People’s Republic of China with
respect to maintaining the confidentiality of the Trade Secrets of
Party A by Party B and Party B’s certain non-competition
obligations during the period when Party B is employed by Party A
and after Party B’s employment with Party A is
terminated.
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1.
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General
principles and definitions
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1.1
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In order to
protect the legal rights and interests of both parties, the
following principles shall apply to this agreement: this agreement
should prevent any unfair competition activities against Party A as
well as to ensure that the Party B’s legal rights are fully
protected.
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1.2
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The
“Service Term” referred to in this agreement shall mean
the period from the time when Party B commences to receive salary
from Party A to the time of termination (or extinguishment) of the
labor relation between Party A and Party B.
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1.3
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A
“Separation” referred to in this agreement shall mean
that either party expressly indicates the intention to dissolve or
terminate the employment relation and put such intention into
action, and shall comprise of all regular separations, such as
resignation, dismissal, or dissolution or termination of the labor
(contract) relation, and all irregular separations.
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1.4
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A “Third
Party” referred in this Agreement shall mean any person or
entity that is related to either Party A or Party B, including but
not limited to Party A’s customers, suppliers, business
partners and Party B’s prior employers.
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1.5
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The
“Trade Secrets” referred to in this Agreement shall
mean any technical or operational information which are unknown to
the public, and may generate economic benefits for Party A and / or
any Third Party, with practicability, and are subject to Party A
and /or any Third Party’s confidentiality measures,
regardless whether it is owned by Party A or any Third Party to
whom Party A is subject to confidentiality obligations and
liabilities. Trade Secrets shall include but not be limited
to:
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1.5.1
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items for which
Party A has organized R&D or which are otherwise obtained by
Party A, and which may have specific complete technical contents,
or may constitute a technical resolution for a product or
technology and improvements thereof, or may be part of the
technical elements of a certain product or technology, including
but not limited to (1) software product designs currently
owned, developed or conceived by Party A and/ or any Third Party;
(2) computer programs; (3) information and materials
concerning the service projects currently owned, developed or
conceived by Party A and/ or any Third Party;
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1.5.2
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the entirety or
elements of Party A’s and / or any Third Party’s
business strategies, forecasts, business and marketing plans,
business operation scope and management decision, various
non-public information known by the company, project management,
technical management, archive management, quality management
methods, pricing methods, development plans, investment plans,
operation rules, commercial network, client name-lists, goods
supply information, advertising planning, management experience,
financial status, price lists, human resources planning, company
structure information, internal rules and policies, business rules,
bid prices and bid documents, and other relevant resolutions,
documents and letters, etc.; the data, documents, experimental
reports, base stations distributed data and other information of
Party A and /or any Third Party’s network planning and
operation;
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1.5.3
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Party A and /or
any Third Party’s customer information, including but not
limited to, customer database, call records, customers’
names, mobile numbers, passwords, itemized bills, monthly bills,
SIM card information, addresses, contact information and other
customer information of similar nature; any electronic information
included in Party A and /or any Third Party’s IT operation
support systems, databases, including but not limited to electronic
documents, notices, data, internal materials, information and
emails which are relevant to Party A and / or any Third
Party’s Trade Secret; and
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1.5.4
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any information
on Party A and / or any Third Party’s on-going or pending
business dealings, including but not limited to draft agreements,
performing agreements, or issues involving customers’ claims,
arbitrations or litigations, dispositions of assets or rights,
etc.
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Media and Form of Trade
Secret
The media and form of the Trade
Secret include but not limited to letters, graphs and tables, video
and electronic documents, etc. which may be in written or verbal
format. All Trade Secret shall be subject to this Agreement
regardless whether it is marked confidential.
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1.6
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A
“Competing Unit” referred to in this agreement shall
mean any individual, company, enterprise, partnership, department,
association, institutional unit, social entity or other
organization which engages in the same kind of business as Party A
(including similar business), or provides the same kind of services
as Party A, or constitutes an actual or potential competition
against the business of Party A within the territorial scope of
Mainland China, Hong Kong, Macau, and Taiwan area. These competing
units include but are not limited to the following:
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1.6.1
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An enterprise
which is in the same industry as Party A;
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1.6.2
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An enterprise
or organization of any other type (or in any other industry) which
engages in any business identical or similar to the main services
performed by Party B for Party A;
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1.6.3
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A company,
enterprise, or other organization which provides professional
consultation or advisory services to the enterprises or
organizations referred to in the preceding paragraphs.
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1.7
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The
“Non-competition Obligations” referred to in this
agreement shall mean the obligations set forth in Article 4 of this
agreement.
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2.
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Protection
of Trade Secrets and Assignment of Intellectual Property
Rights
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2.1
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Only designated
individuals shall produce, receive and send, transfer, use, copy,
excerpt, save and destroy the documents, materials and other items
with the Trade Secret. Party B may not access to those Trade Secret
that are not necessary to fulfill his job responsibilities. Party B
may not copy or excerpt any Trade Secret without authorization.
Proper safety measures must be taken when receive and send,
transfer and retrieve the Trade Secret.
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Unless authorized, Party B may not
disclose the Trade Secret through any personal communications and
correspondences, nor discuss the Trade Secret in public, nor
transfer Trade Secret by any other means. Party B shall obtain
prior approval from Party A when disclose the Trade Secret during
any business communications and cooperation discussions. In case
Party B realizes that the Trade Secret is inadvertently disclosed
or is pending inadvertent disclosure, Party B shall immediately
report to Party A and shall take remedial measures as instructed by
Part A.
Party B agrees not to divulge,
disclose, provide or disseminate, in any manner to any person or
entity (including those employees of Party A, who may not access to
the Trade Secret according to Party A’s confidential policy)
at any time, or utilize the Trade Secret improperly when performing
his job duties, without Party A’s and / or any Third
Party’s express written consent.
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2.2
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Party B agrees
to hold the Trade Secret confidential and not to use any Trade
Secret after the termination of his employment with Party A in the
same manner as if it was during the Service Term.
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All Party A and / or any Third
Party’s Trade Secret, which are possessed or controlled by
Party B, including but not limited to equipment, CDs, magnetic
disks, magnetic tapes, notebooks, memoranda, reports, archives,
samples, books, correspondence, lists, other written and graphic
records, or in any other forms, shall be Party A’s property.
Party B shall return the foregoing upon Party B’s Separation
or Party A’s request.
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2.3
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Party B
undertakes not to disclose the Trade Secrets of Party A and / or
any Third Party under this agreement to any subsequent employer(s)
of Party B.
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2.4
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Unless with
Party A’s authorization and consent in writing, all the
inventions made by Party B in connection with his/her own job,
either separately or jointly with others, during his/her Service
Term, shall be owned by Party A.
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2.5
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Party B shall
have the obligation to disclose to Party A all the intellectual
property rights applied or obtained by Party B during the Service
Term and within one year after Party B’s
Separation.
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2.6
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Party B
undertakes that the intellectual property rights to the patents and
all other intellectual properties accomplished by Party B in
connection with his/her own job or assignments at Party A within
one year following his/her Separation from Party A shall be owned
by Party A.
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3.
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Third-Party
Procedures and Telecommunication Network and Information
Security
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3.1
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During Party
B’s Service Term, if Party B is engaged in any project
assignments for a Third Party, Party B shall strictly abide by such
Third Party’s rules and regulations on safety, work process
and confidentiality and privacy.
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3.2
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Unless and
until upon
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