Exhibit 4.38






Exhibit 4.38




Exclusive Business Cooperation Agreement




This Exclusive Business Cooperation Agreement (this “Agreement”) is made and entered
into by and between the following parties on March 21, 2009 in Beijing, the People’s Republic of
China (“China” or the “PRC”).




	 	 	Party A: Wei Mo San Yi (Tianjin) Technology Co., Ltd.

	 
	 	 	Address: A3-158, 166 West No.3 Street, Airport Logistics Processing Area, Tianjin

	 
	 	 	Party B: Tianjin Ku6 Zheng Yuan Information Technology Co., Ltd.

	 
	 	 	Address: A3-273, 166 West No.3 Street, Airport Logistics Processing Area, Tianjin






Each
of Party A and Party B shall be hereinafter referred to as a
“Party” respectively,
and as the “Parties” collectively.



Whereas,





	1.	 	Party A is a wholly-foreign-owned enterprise established in China, and has the necessary
resources to provide technical and consulting services;







	2.	 	Party B is a company with exclusively domestic capital registered in China and may engage in
the business of information technology services and advertisement operation approved by the
relevant governmental authorities in China (collectively, the “Principal Business”);







	3.	 	Party A is willing to provide Party B with technical support, consulting services and other
commercial services on exclusive basis in relation to the Principal Business during the term
of this Agreement, utilizing its advantages in technology, human resources, and information,
and Party B is willing to accept such services provided by Party A or Party A’s designee(s),
each on the terms set forth herein.






Now, therefore, through mutual discussion, the Parties have reached the following agreements:




	1.	 	Services Provided by Party A







	 	1.1	 	Party B hereby appoints Party A as Party B’s exclusive services provider to
provide Party B with complete technical support, business support and related
consulting services during the term of this Agreement, in accordance with the terms and
conditions of this Agreement, which may include all necessary services within the scope
of the Principal Business as may be determined from time to time by Party A, such as
but not limited to technical services, business consultations, equipment or property
leasing, marketing consultancy, system integration, product research and development,
and system maintenance.




 


 









 












	 	1.2	 	Party B agrees to accept all the consultations and services provided by Party
A. Party B further agrees that unless with Party A’s prior written consent, during the
term of this Agreement, Party B shall not directly or indirectly accept the same or any
similar consultations and/or services provided by any third party and shall not
establish similar corporation relationship with any third party regarding the matters
contemplated by this Agreement. Party A may appoint other parties, who may enter into
certain agreements described in Section 1.3 with Party B, to provide Party B with the
consultations and/or services under this Agreement.

	 
	 	1.3	 	Service Providing Methodology







	 	1.3.1	 	Party A and Party B agree that during the term of this
Agreement, where necessary, Party B may enter into further technical service
agreements or consulting service agreements with Party A or any other party
designated by Party A, which shall provide the specific contents, manner,
personnel, and fees for the specific technical services and consulting
services.







	 	1.3.2	 	To fulfill this Agreement, Party A and Party B agree that
during the term of this Agreement, where necessary, Party B may enter into
equipment or property leases with Party A or any other party designated by
Party A which shall permit Party B to use Party A’s relevant equipment or
property based on the needs of the business of Party B.







	 	1.3.3	 	Party B hereby grants to Party A an irrevocable and exclusive
option to purchase from Party B, at Party A’s sole discretion, any or all of
the assets of Party B, to the extent permitted under the PRC laws, at the
lowest purchase price permitted by the PRC laws. In this case, the Parties
shall enter into a separate assets transfer agreement, specifying the terms and
conditions of the transfer of the assets.




 


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	2.	 	The Calculation and Payment of the Service Fees

	 
	 	 	Both Parties agree that, in consideration of the services provided by Party A, Party B
shall pay Party A fees (the “Service Fees”) equal to 100% of the net income of Party B.
The Service Fees shall be due and payable on a monthly basis; upon the prior written
consent by Party A, the rate of Service Fees may be adjusted pursuant to the operational
needs of Party B. Within 30 days after the end of each month, Party B shall (a) deliver to
Party A the management accounts and operating statistics of Party B for such month,
including the net income of Party B during such month (the “Monthly Net Income”), and (b)
pay 100% of such Monthly Net Income to Party A (each
such payment, a “Monthly Payment”). Within ninety (90) days after the end of each fiscal
year, Party B shall (a) deliver to Party A audited financial statements of Party B for such
fiscal year, which shall be audited and certified by an independent certified public
accountant approved by Party A, and (b) pay an amount to Party A equal to the shortfall, if
any, of the aggregate net income of Party B for such fiscal year, as shown in such audited
financial statements, as compared to the aggregate amount of the Monthly Payments paid by
Party B to Party A in such fiscal year.







	3.	 	Intellectual Property Rights and Confidentiality Clauses







	 	3.1	 	Party A shall have exclusive and proprietary rights and interests in all
rights, ownership, interests and intellectual properties arising out of or created
during the performance of this Agreement, including but not limited to copyrights,
patents, patent applications, software, technical secrets, trade secrets and others.
Party B shall execute all appropriate documents, take all appropriate actions, submit
all filings and/or applications, render all appropriate assistance and otherwise
conduct whatever is necessary as deemed by Party A in its sole discretion for the
purposes of vesting any ownership, right or interest of any such intellectual property
rights in Party A, and/or perfecting the protections for any such intellectual property
rights in Party A.

	 
	 	3.2	 	The Parties acknowledge that the existence and the terms of this Agreement and
any oral or written information exchanged between the Parties in connection with the
preparation and performance this Agreement are regarded as confidential information.
Each Party shall maintain confidentiality of all such confidential information, and
without obtaining the written consent of the other Party, it shall not disclose any
relevant confidential information to any third parties, except for the information
that: (a) is or will be in the public domain (other than through the receiving Party’s
unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the
applicable laws or regulations, rules of any stock exchange, or orders of the court or
other government authorities; or (c) is required to be disclosed by any Party to its
shareholders, investors, legal counsels or financial advisors regarding the transaction
contemplated hereunder, provided that such shareholders, investors, legal counsels or
financial advisors shall be bound by the confidentiality obligations similar to those
set forth in this Section. Disclosure of any confidential information by the staff
members or agencies hired by any Party shall be deemed disclosure of such confidential
information by such Party, which Party shall be held liable for breach of this
Agreement. This Section shall survive the termination of this Agreement for any reason.




 


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	 	3.3	 	The Parties agree that this Section shall survive changes to, and rescission or
termination of, this Agreement.







	4.	 	Representations and Warranties







	 	4.1	 	Party A hereby represents and warrants as follows:







	 	4.1.1	 	Party A is a wholly owned foreign enterprise legally
registered and validly existing in accordance with the laws of China.







	 	4.1.2	 	Party A has taken all necessary corporate actions, obtained
all necessary authorization and the consent and approval from third parties and
government agencies (if any) for the execution, delivery and performance of
this Agreement. Party A’s execution, delivery and performance of this
Agreement do not violate any explicit requirements under any law or regulation
binding on Party A.







	 	4.1.3	 	This Agreement constitutes Party A’s legal, valid and binding
obligations, enforceable in accordance with its terms.







	 	4.2	 	Party B hereby represents and warrants as follows:







	 	4.2.1	 	Party B is a company legally registered and validly existing
in accordance with the laws of China and has obtained the relevant permit and
license for engaging in the Principal Business in a timely manner;







	 	4.2.2	 	Party B has taken all necessary corporate actions, obtained
all necessary authorization and the consent and approval from third parties and
government agencies (if any) for the execution, delivery and performance of
this Agreement. Party B’s execution, delivery and performance of this
Agreement do not violate any explicit requirements under any law or regulation
binding on Party A.







	 	4.2.3	 	This Agreement constitutes
Party B’s legal, valid and binding obligations, and shall be enforceable against it.




 


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	5.	 	Effectiveness and Term







	 	5.1	 	This Agreement is executed on the date first above written and shall take
effect as of such date. Unless earlier terminated in accordance with the provisions of
this Agreement or relevant agreements separately executed between the Parties, the term
of this Agreement shall be 10 years. After the execution of this Agreement, both
Parties shall review this Agreement every 3 months to determine whether to amend or
supplement the provisions in this Agreement based on the actual circumstances at that
time.







	 	5.2	 	The term of this Agreement may be extended if confirmed in writing by Party A
prior to the expiration thereof. The extended term shall be determined by Party A, and
Party B shall accept such extended term unconditionally.







	6.	 	Termination







	 	6.1	 	Unless renewed in accordance with the relevant terms of this Agreement, this
Agreement shall be terminated upon the date of expiration hereof.







	 	6.2	 	During the term of this Agreement, unless Party A commits gross negligence, or
a fraudulent act, against Party B, Party B shall not terminate this Agreement prior to
its expiration date. Nevertheless, Party A shall have the right to terminate this
Agreement upon giving 30 days’ prior written notice to Party B at any time.







	 	6.3	 	The rights and obligations of the Parties under Articles 3, 7 and 8 shall
survive the termination of this Agreement.







	7.	 	Governing Law and Resolution of Disputes







	 	7.1	 	The execution, effectiveness, construction, performance, amendment and
termination of this Agreement and the resolution of disputes hereunder shall be
governed by the laws of China.




 


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	 	7.2	 	In the event of any dispute with respect to the construction and performance of
this Agreement, the Parties shall first resolve the dispute through friendly
negotiations. In the event the Parties fail to reach an agreement on the dispute within
30 days after either Party’s request to the other Parties for resolution of the dispute
through negotiations, either Party may submit the relevant dispute to the China
International
Economic and Trade Arbitration Commission for arbitration, in accordance with its
Arbitration Rules. The arbitration shall be conducted in Beijing, and the language
used in arbitration shall be Chinese. The arbitration award shall be final and
binding on all Parties.







	 	7.3	 	Upon the occurrence of any disputes arising from the construction and
performance of this Agreement or during the pending arbitration of any dispute, except
for the matters under dispute, the Parties to this Agreement shall continue to exercise
their respective rights under this Agreement and perform their respective obligations
under this Agreement.







	8.	 	Indemnification







	 	 	Party B shall indemnify and hold harmless Party A from any losses, injuries, obligations or
expenses caused by any lawsuit, claims or other demands against Party A arising from or
caused by the consultations and services provided by Party A to Party B pursuant this
Agreement, except where such losses, injuries, obligations or expenses arise from the gross
negligence or willful misconduct of Party A.







	9.	 	Notices







	 	9.1	 	All notices and other communications required or permitted to be given pursuant
to this Agreement shall be delivered personally or sent by registered mail, postage
prepaid, by a commercial courier service or by facsimile transmission to the address of
such Party set forth below. A confirmation copy of each notice shall also be sent by
email. The dates on which notices shall be deemed to have been effectively given shall
be determined as follows:







	 	9.1.1	 	Notices given by personal delivery, by courier service or by
registered mail, postage prepaid, shall be deemed effectively given on the date
of delivery or refusal at the address specified for notices.




 


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	 	9.1.2	 	Notices given by facsimile transmission shall be deemed
effectively given on the date of successful transmission (as evidenced by an
automatically generated confirmation of transmission).







	 	9.2	 	For the purpose of notices, the addresses of the Parties are as follows:







	 	Party A:	 	Wei Mo San Yi (Tianjin) Technology Co., Ltd.

	 	Address:	 	 A3-158, 166 West No.3 Street, Airport Logistics Processing Area,
Tianjin

	 	Attn:	 	 Shanyou Li

	 	Phone:	 	 010-62361818

	 	Facsimile:	 	 010-62368882

	 
	 	Party B:	 	 Tianjin Ku6 Zheng Yuan
Information Technology Co., Ltd.

	 	Address:	 	 A3-273, 166 West No.3 Street, Airport Logistics Processing
Area, Tianjin

	 	Attn:	 	 Shanyou Li

	 	Phone:	 	 010-62361818

	 	Facsimile:	 	 010-62368882







	 	9.3	 	Any Party may at any time change its address for notices by a notice delivered to
the other Party in accordance with the terms hereof.







	10.	 	Assignment







	 	10.1	 	Without Party A’s prior written consent, Party B shall not assign its rights
and obligations under this Agreement to any third party.

	 
	 	10.2	 	Party B agrees that Party A may assign its obligations and rights under this
Agreement to any third party upon a prior written notice to Party B but without the
consent of Party B.




 


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	11.	 	Severability

	 
	 	 	In the event that one or several of the provisions of this Agreement are found to be
invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations,
the validity, legality or enforceability of the remaining provisions of this Agreement
shall not be affected or compromised in any aspect. The Parties shall strive in good faith
to replace such invalid, illegal or unenforceable provisions with effective provisions that
accomplish to the greatest extent permitted by law and the intentions of the Parties, and
the economic effect of such effective provisions shall be as close as possible to the
economic effect of those invalid, illegal or unenforceable provisions.







	12.	 	Amendments and Supplements

	 
	 	 	Any amendments and supplements to this Agreement shall be in writing. The amendment
agreements and supplementary agreements that have been signed by the Parties and that relate
to this Agreement shall be an integral part of this Agreement and shall have the same legal
validity as this Agreement.







	13.	 	Language and Counterparts

	 
	 	 	This Agreement is written in both Chinese and English language in two copies, each Party
having one copy with equal legal validity; in case there is any conflict between the
Chinese version and the English version, the Chinese version shall prevail.





 


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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this
Exclusive Business Cooperation Agreement as of the date first above written.




	 	 	 

	Party A: Wei Mo San Yi (Tianjin) Technology Co., Ltd.	 
	 
	 	 
	By: 
	 	 
	 

	Name:  Shanyou Li	 
	 
	Title: Legal Representative 	 
	 
	 	 
	Party B: Tianjin Ku6 Zheng Yuan Information Technology Co., Ltd.	 
	 
	 	 
	By: 
	 	 
	 
	Name: Shanyou Li 	 
	 
	Title: Legal Representative 	 






 


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