Exhibit
        4.38

    

     

    AGREEMENT
      OF BEIJING
      AIRINBOX INFORMATION 

     

    TECHNOLOGIES
      CO., LTD. ON

     

    CONFIDENTIALITY
      AND NON-COMPETE

     

    This
      Agreement
      on Confidentiality and Non-compete
      (hereinafter this “Agreement”) is entered into by and between Beijing AirInbox
      Information Technologies Co., Ltd., a Company incorporated and validly
      subsisting under the laws of China (hereinafter “Beijing AirInbox”) and
      ________________ (hereinafter the “Employee”) on _________ (dd/mm/yy).

     

    Whereas
      the Employee recognizes that the position held by it involves the Company’s
      business and technical information which belongs to the Company in the nature
      of
      confidentiality (hereinafter the “Confidential Information”), and that it is to
      ceaselessly have access to more Confidential Information in performing its
      functions;

     

    Whereas
      the Employee acknowledges that disclosure of any Confidential Information to
      the
      Company’s existing or potential rivals may render the Company being in an
      extremely unfavorable competitive position and harm the Company’s
      interests;

     

    Whereas
      the Employee further acknowledges that, if it leaves the Company and works
      with
      a unit in competition with the Company, the Company’s interests are to be
      harmed;

     

    For
      convenience of each Party’ observation of relationship regarding confidentiality
      and non-compete, both Parties have, through friendly consultations, reached
      an
      agreement as follows:

    


    Article
      1: Definitions

    


    The
      “Company”
refers
      to Beijing AirInbox and all the companies whose financial statements may be
      consolidated with those of KongZhong Corporation in accordance with US generally
      accepted accounting policies, all its branches, subsidiaries, companies in
      which
      Beijing AirInbox holds more than 5% of shares as well as companies as partners
      in cooperation with the foregoing companies.

    


    The
      “Trade Secret” refers to any useful information or business
      operation information which is exclusively owned or kept confidential by the
      Company but unknown to the public, and able to bring about economic benefits
      to
      the Company, and about which the Company has adopted secret-keeping measures
      for
      restriction, including but not limited to: information, development, know-how,
      invention (with or without patent rights), experiment note, test program,
      software design and structure, computer data, internal document or other report,
      analysis, performance information, software document in relation to the
      Company’s products, their characteristics and operator schema; other technology,
      business, product, marketing and plan; or other matters relating to the Company,
      any of its clients, consultants or licensees.


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    


    The
      “Confidential
      Information”
refers
      to any information which is unknown to the public other than the employees
      of
      Beijing AirInbox and the Company such as trade secrets, technical information,
      financial information, marketing information, and information on the Company’s
      staff members and clients in relation to the Company, including without
      limitation, all the information fixed on the carriers such as paper, physical
      goods, diskette or CD to which no access can be gained through public channels.
      The Confidential Information does not include:

    (a)
      information or materials having been possessed by the public when transmitted
      to
      the Employee;

    (b)
      information or materials having been possessed by the public at no fault of
      the
      Employee following transmission of them to the Employee;

    (c)
      information or materials having belonged to the Employee when transmitted to
      the
      Employee and at that time the Employee has no obligation toward the Company
      to
      keep them confidential; and

    (d)
      information or materials subsequently transmitted by a third party to the
      Employee in no violation of any obligations toward the Company to keep them
      confidential.

    


    Article
      2: Non-Compete Undertaking

     

    
      	
              2.1

            	
               Confidentiality
                Obligation

            


    

    


    2.1.1
      The
      Confidential Information may only be used by the Employee for its work with
      Beijing AirInbox, instead of any other purpose.

    


    2.1.2
      The
      Employee shall, during its term of office with Beijing AirInbox, not accept
      or
      obtain (nor allow any associated persons to accept or obtain) any occupational
      interests or positions in any individuals, enterprises, organs, institutions
      or
      other public organizations in competition with the Company’s business, or render
      to such individuals, enterprises, organs, institutions or other public
      organizations any consultancy service or other assistance (e.g. assisting in
      engaging in the business identical with or similar to that conducted by the
      Company or such business to be developed by resolution of the Company’s board of
      directors); nor shall it make business which is the same as or similar to that
      to be developed by resolution of the Company’s board of directors or that of the
      Company in which it takes office for itself or for others.


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    


    2.1.3
      The
      Employee shall, during its term of office with Beijing AirInbox, not directly
      or
      indirectly use or divulge by any means to any individuals, enterprises, organs,
      institutions or other public organizations any Confidential Information
      (information on technology, finance, marketing or other respects) in relation
      to
      the Company or any member of the Company.

     

    2.1.4
      For
      the Purpose of this Agreement, any person or associated persons of a corporate
      entity include:

     

    (a)
      persons serving as managerial personnel in the corporate entity, or as a
      partner, or directly or indirectly holding 10% or more of shares in any kinds
      of
      corporate entities;

     

    (b)
      persons holding major occupational rights and interests in the corporate entity,
      or any trust or other properties held by such persons or corporate entity as
      trustees (or similar fiduciary positions); and

     

    (c)
      any
      relatives or spouse inhabiting with such persons or those of such person serving
      as the directors or managerial personnel of the aforesaid corporate entity
      or
      parent company or subsidiary, or such spouse’s relatives.

    


    2.2
      Exclusion

    


    2.2.1
      The
      provisions contained herein shall not apply in case of use or disclosure of
      Confidential Information for a reasonable performance of its functions and
      duties of position.

    


    2.2.2
      Nor
      shall such provisions apply in case of use or disclosure of Confidential
      Information as required by the applicable laws or directives with legally
      binding force, under which circumstance the scope of use or disclosure shall
      be
      limited to such contents as expressly set forth in the applicable laws or
      directives with legally binding force, and the Employee shall, prior to such
      use
      or disclosure, inform the Company of the relevant provisions contained in such
      applicable laws or directives with legally binding force so that the Company
      can
      take appropriate protective measures.

    


    2.3
      Non-Compete
      Economic Compensation

    


    2.3.1
      Where Beijing AirInbox has commenced paying to an employee non-compete economic
      compensations at the standard set forth in Paragraph 2.3.3 hereof when such
      Employee leaves its job, the Employee shall, within six months upon revocation
      or termination of labor relationship with the Company, not hold a position
      in
      any enterprise or institution (including but not limited to other enterprises
      or
      institutions engaged in mobile data or mobile value-added businesses, other
      enterprises or institutions
      operating or running websites, enterprises or institutions rendering various
      kinds of services for operation and running of websites as well as enterprises
      or institutions associated with operation and running of websites) in
      competition with Beijing AirInbox, or make business which is the same as that
      of
      the Company in which it takes office for itself. The Employee must still
      strictly observe all the stipulations contained in Article 2.1 and Article
      3
      hereof. Otherwise, the Company shall have the right to demand refunding by
      the
      Employee of the non-compete economic compensations already paid. In the
      meantime, the Employee shall as well compensate the Company for its loss of
      interests calculated at the rate of interest on a principal amount provided
      by a
      bank during the same period. The Company may, where it deems necessary, demand
      compensation by the Employee of economic losses incurred by the Company
      therefrom.

    


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    2.3.2
      Where Beijing AirInbox pays no non-compete economic compensations to an employee
      (including the circumstance where the Company is unwilling or deems it
      unnecessary to effect such payment) when the Employee leaves its job, the
      Company will impose no restrict on such Employee’s holding a position in other
      enterprise or institution in the same trade or make business which is the same
      as that of the Company in which it takes office for itself following revocation
      or termination of labor relationship.

    


    2.3.3
      The
      12-month average monthly basic wage of an employee prior to its departure from
      Beijing AirInbox shall be set as the base number of the standard for calculation
      of non-compete economic compensation with the calculation formula being: the
      total sum of economic compensation=base number*number of months with
      responsibility as required in Paragraph 2.3.1*1/2. The Company shall, within
      the
      period of term with responsibility as stipulated in Paragraph 2.3.1, pay to
      the
      Employee non-compete economic compensations on a monthly basis.

    


    Article
      3: Other Related Undertakings

    


    3.1
      Prohibition
      on Talent Hunting

    


    The
      Employee agrees not to instigate, induce, encourage or otherwise facilitate
      other employees of the Company to terminate the labor employment relationship
      with the Company during its term of office with Beijing AirInbox and within
      one
      year thereafter, except for the actions taken during its term of office with
      the
      Company for performance of its functions and duties.

    


    3.2
      Intellectual
      Property

    


    The
      Employee acknowledges that, the research, innovation, invention and other
      intellectual properties in relation to its functions completed by it during
      its
      term of office with the Company on the strength of/by using the Company’s
      financial resources, materials or sites, whether being developed at present
      or
      to be developed in the future, including without limitation, trademarks (whether
      represented in word, design, or combination thereof), patent rights (whether
      or
      not having made an application therefor or an application for registration
      is
      being made at present), software, public or non-public proprietary technologies
      as well as other statutory rights shall belong to the Company, and undertakes
      to
      make best efforts to cooperate with the Company so that the Company can obtain
      the entire rights and maintain its lawful rights and interests.

    


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    3.3
      Compensation
      for Breach of Contract.

    


    The
      Employee acknowledges that, in the event of breach of the Agreement, the Company
      will or may suffer irremediable losses or damages. The Employee agrees that,
      where it is in breach of the Agreement or in peril of breach of the
      Agreement, the Company has the right to hold the Employee liable therefor
      correspondingly (including but not limited to the liabilities for breach of
      contract, compensation for economic losses, stopping the infringing acts, or
      if
      the circumstances are serious, being investigated for criminal
      liability).

    


    In
      the
      event that the Employee divulges the Confidential Information possessed, learnt
      or known during the term of office with the Company or other secrets relating
      to
      the Company in violation of provisions contained herein; or transfers, carries,
      destroys without authorization all
      the
      storage devices, storage materials and copies involving the Company’s secrets
      such as documents, materials, drawings, tapes, disks, CDs as well as
      notebooks,
      it
must
      refund all such special allowances and commercial insurance premiums as received
      by it and pay an additional liquidated damage equivalent to three times of
      the
      total sum of such special allowances and commercial insurance premiums as
      received by it. Where the Company’s losses still cannot be totally covered by
      such liquidated damage, the Employee must separately compensate the Company
      for
      its losses.

    


    Article
      4: Provisions on Governing Laws

    


    4.1
      Severability

    


    The
      validity, legitimacy
      and enforceability of the remaining provisions contained herein is not affected
      by the nullity of any provision of this Agreement; and such void provision
      shall
      be replaced by another valid, legitimate and enforceable provision, the effect
      of which is to the fullest extent to the original intention of each
      Party.


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    4.2 Notice


    4.2.1
      Notice may be served in person or by courier (including the commercial express
      mail services with international reputations), registered mail or public
      announcement and the like.

    (a)
      To
      the Company:

    Address:
      33/F,
      Tengda Plaza, 168, Xiwai Dajie, Haidian District, Beijing, China

    Postal
      Code: 100044

    Attention:

    Tel:
      010-88576000

    Fax:
      010-88575900

    


    (b)
      To
      the Employee:

    Address:

    Attention:

    Tel:

    Fax:

    


    4.2.2
      A
      notice or correspondence shall be deemed to have been served under the following
      circumstances:

    (a)
      if by
      courier (including commercial express mail services), on the date when the
      addressee signs for receipt;

    (b)
      if by
      registered mail, subject to a lapse of seven (7) days upon production by a
      post
      office of vouchers.

    


    4.3
      Amendment
      and Waiver

    


    4.3.1
      This Agreement may be amended or modified only subject to each Party’s consent
      by entering into written instrument.

    


    4.3.2
      No
      failure to exercise and no delay in exercising on the part of either Party
      any
      right, power or privilege hereunder or in connection herewith shall operate
      as a
      waiver thereof nor shall any single or partial non-exercise of any right, power
      or privilege preclude the exercise of any other right, power or privilege later
      on.

    


    4.4
      Counterparts

    


    This
      Agreement may be executed by each Party either in several counterparts or one
      counterpart separately, each of which shall be deemed to be an original but
      all
      of which together shall constitute one and the same agreement.


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    
      4.5
        Effective Date

      


      This
        Agreement shall come into force as of the date when it is executed by the
        Company’s authorized representative and the Employee.

    

     

    
      	
              The
                Company (Seal)

            	
              The
                Employee (Signature)

            


    

    


    
      
        
        

      

      
        7