畅天游公司在一审中答辩称：飞天公司在与畅天游公司合作中与第三方合作，实属违约，畅天游公司有权扣除飞天公司保证金;飞天公司擅自终止了合作协议，双方的合作期限应至2009年1月，实际只到2008年5月，按照协议4.1.6的约定，应当赔偿畅天游公司损失，故不同意飞天公司的诉请，畅天游公司提出反诉(2011年6月9日)：2008年1月15日，双方签署原协议，约定飞天公司与畅天游公司签署的网游渠道代收费项目提供无线增值业务通道，飞天公司收取的信息费与畅天游公司按协议第4.1.3约定的比例分成，合作期限从2008年1月15日至2008年4月15日。2008年8月18日，双方签订补充协议，对双方合作期限进行调整，约定合作期限从2008年1月15日至2009年1月15日止。合作期限届满，除非协议期满前30日内一方以书面形式提出不再续约，否则协议有效期自动延续一年。然飞天公司在2008年5月底，突然单方关闭计费端口，表示不再履行协议及补充协议，飞天公司的行为侵害了畅天游公司的权益，反诉要求：1、飞天公司赔偿因其违约给畅天游公司造成的直接经济损失284 605元;2、判令飞天公司赔偿可得利益损失777 584.65元。
City China moves limited company of Beijing Chang Tianyou science and technology and Shenzhen record of appeal of dispute of contract of limited company of development of technology of flying Apsaras network
Beijing court of the first intermediate people
(2012) one in civilian eventually word the 4823rd
Appellant (accuser of first trial the accused, countercharge) limited company of Beijing Chang Tianyou science and technology.
Gold of legal representative king is beautiful, general manager.
Attorney cloud actors or actress, solicitor of office of Beijing Kyoto attorney.
The attorney installs , solicitor of office of Beijing Kyoto attorney.
Appellee (the accused of first trial accuser, countercharge) Shenzhen city China move technology of flying Apsaras network to develop limited company.
Dawn of legal representative Liu is loose, president.
Attorney White Dew.
Attorney Peng is allowed.
Limited company of appellant Beijing Chang Tianyou science and technology (company of Chang Tianyou of the following abbreviation) because with appellee Shenzhen city China moves technology of flying Apsaras network to develop limited company (company of flying Apsaras of the following abbreviation) contract dispute one case, refuse to obey court of people of Beijing Haidian division (2011) Hai Minchu word the 14046th civil judgment, mention to this academy appeal. This academy was accepted on March 12, 2012 hind, comprise lawfully hold the position of a presiding judge by judge Zhang Yinlong, the judge is like the Wei, collegiate bench that judge Zhen Jieying joins, undertook cognizance. This case already was tried now terminative.
Flying Apsaras company sues in first instance say: On January 15, 2008, chang Tianyou company and flying Apsaras company are signed " agreement of contract of wireless appreciation business " () of abbreviation original agreement, the generation of network game channel that the agreement agrees by flying Apsaras the company is Chang Tianyou company collects fees the project offers channel of wireless appreciation business, income means settle accounts is become with cent after the fee of wireless appreciation business that by collection of flying Apsaras company company user pays Chang Tianyou give Chang Tianyou the company. Manage to make sure flying Apsaras is fair according to it settle accounts, original agreement company of 4.1.1 agreements flying Apsaras signs 3 weekday at the agreement inside, to Chang Tianyou the company pays bail RMB 100 thousand yuan of card. In Feburary 2008, both sides signs those who be aimed at original agreement " agreement of complement of agreement of cooperation of wireless appreciation business " (abbreviation complement agreement one) , company of conventional flying Apsaras increases cash deposit separately to Chang Tianyou company 150 thousand yuan. On August 18, 2008, chang Tianyou company signs the 2nd with department of flying the ruler of heaven again " compensatory agreement of agreement of contract of wireless appreciation business " (abbreviation complement agreement 2) , make change to deadline of original agreement contract. After the agreement is signed, chang Tianyou company parts on January 17, 2008, added up to on March 4, 2008 RMB of earnest money of company of collection flying Apsaras is rectified 250 thousand yuan. According to original agreement the 10th treaty is decided, after this agreement expires or be being stopped ahead of schedule, chang Tianyou company needs to be in 10 days in one-time the total earnest money that returns flying Apsaras company to pay to Chang Tianyou company. According to compensatory agreement 2 the first, cooperative time comes to stopped on January 15, 2009 from January 15, 2008. According to afore-mentioned agreements, chang Tianyou company should return flying the ruler of heaven to manage bail is rectified 250 thousand yuan at be being returned before January 25, 2009, like that Chang Tianyou company still was not returned up to now still, should assume according to it up to return the penalty due to breach of contract that returns bail day to stop actually. Request: 1, sentence Ling Chang day to swim the company is returned return earnest money 250 thousand yuan of;2, pay up to return the penalty due to breach of contract that returns bail day to stop.
Chang Tianyou firm replies to a charge in first instance say: Flying Apsaras company cooperates with tripartite in cooperating with Chang Tianyou company, solid belong to break a contact, chang Tianyou company has authority to deducted do sth without authorization of company of flying Apsaras of; of earnest money of flying Apsaras company to terminate cooperative agreement, bilateral cooperative time should come in January 2009, arrive actually only May 2008, according to the agreement the agreement of 4.1.6, ought to recoup loss of Chang Tianyou company, reason does not agree with the appeal of flying Apsaras company, chang Tianyou company puts forward countercharge (on June 9, 2011) : On January 15, 2008, both sides signs original agreement, the net that company of conventional flying Apsaras and Chang Tianyou company sign swims channel generation collects fees the project offers channel of wireless appreciation business, the information cost of collection of flying Apsaras company and Chang Tianyou company press an agreement the scale of the 4.1.3rd agreement is divided into, cooperative time comes from January 15, 2008 on April 15, 2008. On August 18, 2008, both sides signs compensatory agreement, undertake adjustment to bilateral collaboration deadline, agree cooperative time comes to stopped on January 15, 2009 from January 15, 2008. Cooperative deadline at the expiration of one's term of office, unless the agreement expires,the before 30 one party inside day put forward to renew the contract no longer with written form, otherwise consultative period of efficacy continues automatically one year. Fly to weather firm to be by May 2008 like that, abrupt home remedy shuts plan cost port, express to fulfil agreement and compensatory agreement no longer, the behavior enroach on of flying Apsaras company the rights and interests of Chang Tianyou company, countercharge requirement: 1, the 284 605 of immediate pecuniary loss that because its break a contact gives Chang Tianyou company to cause,flying Apsaras company compensates for yuan;2, sentence compensation of company of your flying Apsaras to be able to get profit loss 777 584.65 yuan.
Flying Apsaras firm replies to a charge in the light of the countercharge of Chang Tianyou company say: The first, the appeal of Chang Tianyou company has exceeded litigant effectiveness for a given period of time, request to reject, put forward in countercharge the window was closed by May 2008, chang Tianyou company should sue bring a case to court at the premise end May 2010, had exceeded effectiveness for a given period of time now. The 2nd, flying the ruler of heaven manages nonexistent home remedy closes the case of the window, it is not do one's best of conduct propaganda of Chang Tianyou company, both sides still signed compensatory agreement in August 2008 2, explain flying Apsaras company closes the window without home remedy. The 3rd, can get an interest to do not have a basis, do not have connection with this case, chang Tianyou company is put impossibly in immediate pecuniary loss, collaboration of diddle of Chang Tianyou company is divided into income, cannot decide in order to brush the amount of card to be able to get the number of the interest, reason does not agree with his to turn over appeal to beg.
Cognizance of court of first instance finds out: On January 15, 2008, chang Tianyou company (Party A) with flying Apsaras company (Party B) sign original agreement, conventional Party A offers generation of network game channel to collect fees project, the platform of telegraphic appreciation business of the Chinese mobile firm that uses Party B to open business of telegraphic data appreciation has the collaboration of wireless appreciation business, party A is in charge of business affairs negotiating, product operation platform is built, and the job such as promotion of the line on flow of technical tiring-room butt joint, product, party B offers the passageway of wireless appreciation business such as short message, IVR and endowment cost code to provide necessary technical support, be in charge of undertaking with telegraphic operation business settle accounts chime is moved. The network game medium of communication that its provide Party A acceptance cooperates, do not violate the regulation that law, code reachs operation business related the country, must not use operation business illicit to extend a shift (include but not be confined to group hair, consume) oneself. 2.6 Party A are in charge of carrying buccal butt joint and development with mobile, Gaoyang, the development that Party B helps Party A works and assure Party A to be able to examine Gao Yang independently SPOA of relevant business code, the basis; Party B that regards cooperative business as settle accounts with this is in charge of offerring cooperative code to use; Party B to be in charge of providing platform of telegraphic appreciation business for cooperative project, the business flow development that is in charge of cooperative code along with all the others with Party A, test, plan cost, go up the line is enlightened, undertake maintenance to technical operation platform, safeguard collaboration code moves expedite develop the work with stable; You Jiayi both sides undertakes jointly, the information that the cooperative code place that the Party B of; of successful butt joint that Party B assures to cooperate Party A and port of tall positive data is in charge of be being offerred through its produces expends income and operation business to have close an account, the agreement that presses this agreement undertakes to Party A settle accounts; is aimed at the following circumstance regularly: Business port is shut because of Party B reason, because Party B is caused consequently formerly cannot of breakdown of plan cost, technology, party B should make an explanation in time to Party A, if,issue; of relevant and written file Party B cannot issue written specification document, if Party B violates 3.6 agreement,should regard Party B responsibility as; , party A has power demand Party B to make compensation: The day of the area that indemnity = gets liability accident to affect all portfolio [plan take time is long (minute) / day] time [day] Party A deserveds cent becomes scale [net income becomes scale 80% minutes] the day of the area that 200%(gets liability accident to affect, party B does not undertake responsibility of breach of contract, party A must not ask Party B is compensated for. If be inside cooperative period,Party A discovers Party B to be like next behavior, bail does not grant to return: Party B did not pass Party A to permit, do sth without authorization changes the; Party B that collaboration dictates or adjusts propagandist code to be permitted without crossing Party A, the; Party B that uses cooperative business content at oneself business is made did not pass Party A to permit, closing this collaboration is used to extend inside fix a date have business oneself and close to the promotion battalion of Party A cause those who be not benign competition influence (include but not be confined to is same the net swims the firm closes to be signed directly inside the corresponding period and hit those who press Party A channel) Party B assures with. About bail, consultative agreement, 3 Party B jobs after this agreement is signed in a few days, pay 100 thousand yuan of collaboration earnest money to Party A, the plan cost cycle of 3 months since the day that begins from cooperative business is debug period. Debug period after the end, whether does both sides increase cooperative project to decide amount of bail of below one phase signs compensatory agreement according to the real portfolio inside 3 months and follow-up. Bail returns way: Stop in collaboration that month, bail go ahead of the rest is touched buckle Party A that month accrual of part of one's job, if bail is in,touch there still is the rest after buckling settle accounts, criterion if bail can't be touched,Party A should return sum of part of this the rest Party B; buckle Party A current accrual of part of one's job, party B should press this agreement the Xiang Jia of settle accounts time of next agreements part of square complemental balance. 4.1.2 if Party A discovers Party B exists the following behavior, bring losing to Party A, will press Party A losing actual specified number is spent deduct earnest money, deduct the compensation that serves as pair of Party A partly to will return Party B no longer: A, hide the net;B that arises by cooperative code place, mistake as a result of Party B, cause data loss cannot plan cost or program cannot publicize the data statistic cost that;C of this collaboration code, basis produces 2.6 times and factual close an account to be worth occurrence error normally, and Party B cannot offer significant evidence to prove error reason or the share that as a result of error reason unreasonable Party A cannot approve because 4.1.2 are deducted,the;D, part; that informing Party A the circumstance falls to did not press conventional time and Party A to have close an account is like bail, party B should in the settle accounts at second month, complemental the share that is deducted, but 4.1.2 D except; is bilateral every months of settle accounts two, , second direction Party A is sent on the plan cost data of product of collaboration of end of every consummate month, party A affirms plan cost data is not had open formal bill to Party B by accident, party B works 5 times in a few days at receiving bill hind, party B deserveds Party A money pays Party A to appoint Zhang date; every months the 20th day, second direction Party A is sent 1 day cooperates to 15 days that month the plan cost data of the product, party A affirms plan cost data is not had open formal bill to Party B by accident, party B deserveds Party A in a few days at getting 5 jobs after bill money pays Party A to appoint exceed the time limit of Zhang date; to pay, according to current the amount collection fine for delaying payment that handles computational money, during daily 0.1%; agreement, both sides should ensure because one party responsibility is brought about,the safe moving; of cooperative business is like include but not be confined to is moved settle accounts of operation trade punishment, amerce, lag, stop settle accounts, stop business to wait, bilateral loss is assumed by responsibility one party, because this gives the loss; one party that the other side brings beak a contract,assume, defend make an appointment with Fang Youquan to with written announcement requirement break a contact just corrects action of its break a contact and adopt sufficient, effective, seasonable measure to eliminate consequence of break a contact, compensate for if break a contact just is in,defend the loss; that just sends because of behavior of break a contact about receive defend after making an appointment with an afore-mentioned announcements about behavior of its break a contact action of its break a contact was not corrected inside 10 days, defend after making an appointment with Fang Youquan to stop this consultative; to happen in fact of break a contact ahead of schedule with the means home remedy of written announcement, make an appointment with via defending square reasonable reach objective judgement, the fact of break a contact such as this already was caused defend just fulfil this agreement about impossible already or next its corresponding obligation are apparently inequitable, defend make an appointment with Fang Youquan to inform with written form break a contact just terminates this agreement ahead of schedule, break a contact just should be compensated for defend about square because of break a contact behavior of Fang Zhi break a contact and the loss that sends. The agreement represents a person surely from double method or accredit delegate signs the become effective since the day of affix one's seal, cooperative time comes from January 15, 2008 on April 15, 2008. Inside before cooperative deadline at the expiration of one's term of office 30 days, this consultative add signs bilateral put up with or modificatory matters concerned undertakes negotiation, if both sides agrees consistently to continue to cooperate, answer to sign written agreement separately. Any one party can produce action of break a contact in another and just receive in this break a contact still fail to be made to behavior of break a contact inside 10 days when defend the announcement that already just happened about behavior of break a contact about and exists correct when, outside stopping the money before this consultative; is divided to set instantly through giving out the means of an announcement to another, if any one party are about to terminate this agreement ahead of schedule, need to shift to an earlier date face of 30 a book from heaven gives out the application that terminates an agreement to the other side, like what get each other written approbate, when 30 days of at the expiration of one's term of office since the day that approves from the other side, this agreement is stopped. After this agreement expires or be being stopped ahead of schedule, party A needs to be in 10 days in one-time the total earnest money that returns second direction Party A to pay. Party B has authority to appoint its correlation company to execute this agreement, party A should give cooperate actively. The related company of Party B includes but not be confined to: . The specific place of 3.6 clauses did not indicate in this agreement. Later, both sides signs compensatory agreement one, carry bright, already signed original agreement in January 2008 in view of both sides, sign compensatory agreement now, make change to original agreement, party B at signing this consultative hind works 5 times in a few days, increase 150 thousand yuan to regard collaboration as bail to Party A. Future adds up to exercise Wu to answer comply with bail and information cost according to 1: The principle of 2 undertakes disbursement, produce take time of 200 thousand information to should pay Party B when Party A namely 100 thousand as cooperative business earnest money. Party A should have second month income at securing time every months beforehand appraise, if be inside month of a plan cost beforehand appraise battalion closes for 200 thousand, party B should according to Party A beforehand appraise abides by bail to pay a principle to pay 100 thousand yuan of earnest money, when actual profit prep above 200 thousand, party B should be inside 10 days complemental second month is like the bail; of 200 thousand the following part actual profit under 200 thousand, criterion Party A should press this month and go up Xiang Yi just returns month of balance between actual profit bail. Because 4.1.2 are deducted,be like bail, party B should in the settle accounts at second month, complemental the share that is deducted, but 4.1.2 D except;2008 year on August 18, both sides signs compensatory agreement 2, zai Mingjian already reached compensatory agreement at signing original agreement in January 2008 at both sides one, sign compensatory agreement to be as follows now: original agreement provision change is, this agreement represents a person surely from double method or accredit delegate signs the become effective since the day of affix one's seal, cooperative time comes to stopped on January 15, 2009 from January 15, 2008. Cooperative deadline at the expiration of one's term of office, unless the agreement expires,the before 30 one party inside day put forward to renew the contract no longer with written form, otherwise consultative period of efficacy continues automatically one year. If be in charge of the policy of branch or communication operation business and reason to be opposite because of the country,cooperate bilaterally the interest produces an effect, both sides can undertake in the light of relevant provision friendly talk things over, if be in charge of a branch because of the country or the policy consideration of communication operation business brings about this agreement to be stopped ahead of schedule, party A does not assume any responsibility. On January 17, 2008, chang Tianyou company issue receipt, carry bright get earnest money of flying Apsaras company 100 thousand yuan. On January 23, 2008, flying the ruler of heaven manages to Chang Tianyou the company pays bail 100 thousand yuan. On March 4, 2008, chang Tianyou company issue receipt, carry bright get earnest money of flying Apsaras company 150 thousand yuan. On March 11, 2008, flying the ruler of heaven manages to Chang Tianyou the company pays bail 150 thousand yuan. Flying Apsaras company and Chang Tianyou company came on April 15, 2008 come-and-go email showed on May 20, 2008: Flying Apsaras company ever undertook with respect to cooperative project period of time restricts those who reach across to take card to adjust, superintend in the light of operation business took step of a few avoid. On May 14, 2008, as a result of earthquake of plain of short of Wenshui River, cancel the short message inside May plan cost works, wait for aseismatic provide disaster relief after come to an end, business restores, the earliest professional work restores time to be on June 1, can inform separately. Mail showed on May 20, 2008: Considering 19 mourn day for the whole nation to 20 days, the regulation stops all recreational activities, via discussing, net of time-out of proposal of flying Apsaras company swims the passageway of the project, 22 days early restored again at 9 o'clock, be like consentient, began to carry out that day. Additional, the circumstance that from April each shift feedbacks to fly to weather firm, be buckled to owe cost and the province step up that are consumed oneself by suspicion at present, amount also is increasing, the issue is more critical, flying Apsaras company shut Shanghai, Hubei temporarily these two appear unusual province, apologize did not inform beforehand. Will move to punish is consumed oneself and smash the case that owes cost centrally henceforth for avoid, flying Apsaras company suggests, later can every month opens partial province, shut province of partial high risk. Flying Apsaras company and Chang Tianyou company produce information cost and settle accounts circumstance to be as follows in all with respect to cooperative project: Came on January 24, 2008 on Feburary 15 100 009.37 yuan, came on Feburary 16 on Feburary 29 211 393.17 yuan, came on March 1, 2008 on March 31 211 615.31 yuan reach 238 425.31 yuan, came on April 1, 2008 on April 15 201 341.47 yuan, came on April 16, 2008 on April 30 126 152.48 yuan, came on May 1, 2008 on May 15 132 585.5 yuan, came on May 16, 2008 on May 31 30 319.61 yuan, came on March 16, 2008 on April 4 116 174.8 yuan. After May 31, 2008, did not produce information cost again with respect to cooperative project. In lawsuit, flying Apsaras company says, the contract is fulfilled actually on January 15, 2009, chang Tianyou company did not issue an announcement later, also did not manage to flying the ruler of heaven game orders check, the agreement did not fulfill company of; Chang Tianyou to say again, the agreement is fulfilled actually to on May 21, 2008, commitment of flying Apsaras company suspends professional work at that time, but later did not restore all the time, show a contract to had expired stop. Chang Tianyou company says, the behavior of break a contact of flying Apsaras company basically depends on flying Apsaras company be in on May 21, 2008 no longer plan cost, the agreement did not expire to stop with respect to do sth without authorization, the spot check that causes Chang Tianyou company cannot sell company of; flying Apsaras to return with the Shanghai that runs congener business Ai Ba company undertakes the net swims the generation that order check collects fees business. Flying Apsaras company says, because of Chang Tianyou the company exists to be consumed oneself, so flying Apsaras company was adopted prevent across to take card, limitation to take the step such as calorie of time, to Chang Tianyou company after consuming behavior to take limitative step oneself, buy check again without the user, do not have settle accounts happening so. Flying Apsaras company did not stop the collaboration with Chang Tianyou company, the passageway is open all the time, flying Apsaras company just stopped to consume the passageway of serious province oneself, not was to shut all passageways. Flying Apsaras company never cooperates with Shanghai Ai Ba company. Chang Tianyou company says, experience proposal agreement performed a few months only, because Chang Tianyou company deducts the earnest money that has flying Apsaras company, reason was not communicated further, touch when bail deduct a loss.