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EXHIBIT 4.63
EXCLUSIVE CONSULTING AND SERVICE AGREEMENT
This Exclusive Consulting and
Service Agreement (this "Agreement") is entered
into on January 1, 2004 by
and between:
PARTY A: SHANGHAI LINKTONE
CONSULTING COMPANY LIMITED ("PARTY A")
Registered address: Building
6, Ganglu Plaza, No. 18 Xizang Zhonglu, Shanghai
and
PARTY B: SHANGHAI WEILAN
COMPUTER COMPANY LIMITED ("PARTY B")
Registered address: 558 Dazhi
Xilu, Malu Town, Jiading District, Shanghai
WHEREAS:
1. Party A is a wholly
foreign owned company established and existing under the
laws of the People's Republic
of China ("PRC"), owning resources for consulting
and services.
2. Party B is a domestic
company established in Shanghai under the laws of PRC,
and is permitted to provide
information services (not including Internet service
and telephone information
service) with the approval from Shanghai
Communications
Bureau.
THEREFORE, the Parties, after
friendly negotiation, hereby agree as follows:
Article 1 Consulting and
Services: Exclusivity
1.1 During the term hereof,
Party A shall provide Party B with exclusive
technical and logistical
consulting and services.
1.2 Party B agrees to accept
the consulting and services provided by Party A.
Party B further agrees that,
without prior written consent of Party A, Party B
shall not accept consulting
and services from any third parties in connection
with the aforesaid
business.
Article 2 Consulting and
Services
2.1 Consulting and services
provided by Party A to Party B shall include but
are not limited
to:
2.1.1 The installation,
debugging and updating of technology used by Party B.
2.1.2 Further development of
technology used by Party B.
2.1.3 Other supplementary
services to technology used by Party B.
2.2 Party A shall provide
Party B with consulting and relevant services in
connection with marketing and
sales, including but not limited to:
2.2.1 Party A shall provide
Party B with market research and information.
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2.2.2 Party A shall provide
Party B with market prospects.
2.2.3 Party A shall provide
Party B with marketing of products, including but
not limited to market
planning and advertisement.
2.2.4 Party A shall provide
Party B with sales services, including but not
limited to sales coordination
and after-sale service.
2.3 Party A shall provide
Party B with consulting and services in connection
with legal, financial and
administrative affairs.
2.3.1 Party A's legal
department shall provide legal services to Party B and
assist Party B in dealing
with any and all legal affairs, including but not
limited to litigation and
non-litigation affairs.
2.3.2 Party A's financial
department shall provide financial services to Party B
and assist Party B in dealing
with any and all financial affairs, including but
not limited to taxation and
settlement affairs.
2.3.3 Party A's
administrative department shall provide administrative
and
logistical services to Party
B and ensure the normal operation of Party B.
Article 3 Fees and
Payment
3.1 In consideration of Party
A's consulting and services to Party B, Party B
shall pay Party A a lump sum
consulting and service fee in the amount of RMB
64,500,000.
3.2 Term of payment: Party B
shall pay Party A the aforesaid amount prior to
March 31, 2005.
3.3 Method of payment: All
the amounts that Party B should pay Party A shall be
remitted in RMB to the
following account:
Bank:
Address:
Bank
account:
Article 4 Representations and
Warranties
4.1 Party A hereby represents
and warrants that:
4.1.1 Party A is a company
duly established and existing under the laws of the
People's Republic of
China.
4.1.2 The execution and
performance of this Agreement is within the corporate
power and business scope of
Party A; Party A has adopted all necessary corporate
actions and authorization and
has obtained consent and approval from all
necessary third parties and
government authorities; and this Agreement is not in
violation of the legal and
contractual obligations binding on Party A.
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4.1.3 Upon execution, this
Agreement shall constitute legal, effective, and
binding obligations upon
Party A and enforceable according to the terms hereof.
4.2 Party B hereby represents
and warrants that:
4.2.1 Party B is a company
duly established and existing under the laws of the
People's Republic of China,
and has the right to provide information services.
4.2.2 The execution and
performance of this Agreement is within the corporate
power and business scope of
Party B; Party B has adopted all necessary corporate
actions and authorization and
has obtained consent and approval from all
necessary third parties and
government authorities; and this Agreement is not in
violation of the legal and
contractual obligations binding on Party B.
4.2.3 Upon execution, this
Agreement shall constitute legal, effective, and
binding obligations upon
Party B and enforceable according to the terms hereof.
Article 5
Confidentiality
5.1 Party B agrees to take
all reasonable measures to keep confidential all
confidential materials and
information ("Confidential Information") obtained or
accessed by Party B in the
course of Party A's exclusive consulting and
services, and shall not
disclose, assign or transfer such Confidential
Information to any third
parties without Party A's prior written consent. Upon
termination of this
Agreement, Party B shall at Party A's request return to
Party A or destroy at its own
expense any document, material or software
embodied with Confidential
Information, and delete any Confide
