Exhibit 10.13


 


Exclusive Business Cooperation Agreement


 


This Exclusive Business
Cooperation Agreement (this
“Agreement”) is made and entered into by and between the following
Parties on the  23rd day of September, 2005 in Beijing, China.


 


Party
A:                          ChinaCache Network Technology (Beijing) Co., Ltd.


Address:                          Unit at 2/F of New Integration Building, No.8 A Liang Qiu Garden, Ta
Yuan, Haidian District, Beijing


 


Party B:                          Beijing Blue I. T.
Technologies Co., Ltd.


Address:                          No. 8 A, Lang Qiu Garden, Ta Yuan, Hai Dian District, Beijing


 


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 the People’s
Republic of China (“China”), and has the necessary
resources to provide technical services
and business consulting services;


 


2.                   Party B is a company with
exclusively domestic capital registered in  China and may
engage in Internet content delivery network business as approved by the relevant governmental
authorities in China;


 


3.                   Party A is willing to provide Party B with exclusive technical, consulting and other services in relation to Internet content delivery network  during the term of this Agreement utilizing its own advantages in human
resources, technology 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, Party A and Party B 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 business support and technical and consulting
services during the term of this Agreement, in accordance with the terms and
conditions of this Agreement, which may
include all services within the business scope of Party B as may be determined
from time to time by Party A, such as but not limited to technical services, business consultations, intellectual property licenses,  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 accept any consultations and/or services
provided by any third party and shall not
cooperate 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, both
Parties, directly or through their respective affiliates, may enter into
further exclusive technical support and service agreement (in the form as
attached in Appendix I hereto) or exclusive technical consultation and training
agreement (in the form as attached in Appendix II hereto), 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, both Parties, directly or through their respective
affiliates, may enter into intellectual property (including but not limited to
software, trademark, patent and know-how) license agreements, which shall
permit Party B to use Party A’s relevant intellectual property rights, at any
time and from time to time based on the needs of the business of Party B.


 


2.                                     The Calculation and Payment of the Service Fees


 


The
Parties agree that the service fees under this Agreement shall be  determined and paid based on the methods set forth in the separate agreements to be entered between Party A and Party B
described in Section 1.3.


 


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,
trademarks, software, technical secrets, trade secrets and others,
regardless of whether they have been developed by Party A or Party B.


 


3.2                                 The Parties acknowledge that any oral or written information exchanged among
them with respect to this Agreement is confidential  information.
Each Party shall maintain the confidentiality of all such information, and
without obtaining the written consent of the
other Party, it shall not
disclose any relevant information to any third parties, 


 

















 


except
in the following circumstances: (a) such information is or will be in the
public domain (provided that this is not the result of a public disclosure by
the receiving Party); (b) information
disclosed as required by applicable laws or rules or regulations of any stock exchange; or (c) information required to be
disclosed by any Party to its legal counsel or financial advisor regarding the
transaction contemplated hereunder, and such legal counsel or financial advisor
are also bound by confidentiality duties similar to the duties 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.


 


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 company legally registered and validly existing in
accordance with the laws of China.


 


4.1.2                      Party A’s
execution and performance of this Agreement is within its corporate capacity and the scope of its business
operations; Party A has taken necessary corporate actions and been given appropriate authorization and has obtained the
consent and approval from third parties and government agencies, and will not
violate any restrictions in law or otherwise binding or having an impact 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 may engage
in  Internet content delivery network business as approved by the relevant governmental authorities of China;


 


4.2.2                      Party B’s
execution and performance of this Agreement is within its corporate capacity and the scope of its business
operations; Party B has taken necessary corporate actions and given appropriate
authorization and has obtained the consent and approval from third parties and
government agencies, and will not violate any restrictions in law or otherwise
binding or having an impact on Party B.


 

















 


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


 


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 ten years. After the execution of this Agreement, both Parties shall review this
Agreement every three 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.


 


7.2                                 In the event of any dispute with respect to the construction and
performance of the provisions of this Agreement, the Parties shall negotiate in
good faith to resolve the dispute. In the event the Parties
fail to reach an agreement on the resolution of such a dispute within 30 days
after any Party’s request for resolution of the dispute through negotiations,
any Party may submit the relevant dispute to the China International Economic
and Trade Arbitration Commission for arbitration, in accordance with its then-effective
arbitration rules. The arbitration shall be conducted in Beijing, and the language used during 


 

















 


arbitration
shall be Chinese. The arbitration ruling shall be final and binding on both
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 at the request of
Party B, 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.


 


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:  ChinaCache Network Technology
(Beijing) Co., Ltd.


Address:  unit
at 2/F of New Integration Building, No.8 A Liang Qiu Garden, Ta Yuan, Haidian
District, Beijing


Attn: General Manager


Phone:  6437
3399


Facsimile: 6437 5315


 

















 


Party
B:    Beijing Blue I.
T. Technologies Co., Ltd.


	
  Address:

  	
   

  	
  No. 8
  A, Lang Qiu Garden, Ta Yuan, Hai Dian District, Beijing

  
	
  Attn:

  	
   

  	
  General
  Manager

  
	
  Phone:

  	
   

  	
  6437
  3399

  
	
  Facsimile:

  	
   

  	
  6437
  5315

  



 


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.


 


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.


 

















 


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


 


 


	
  Party A:

  	
  ChinaCache
  Network Technology
  (Beijing) Co., Ltd.

  
	
   

  	
   

  
	
  Authorized representative:

  	
  /s/ Song Wang

  	
   

  
	
  Name:

  	
  Song Wang

  
	
  Title:

  	
  Legal Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  Party B:

  	
  Beijing Blue I. T. Technologies Co., Ltd.

  
	
   

  	
   

  
	
  Authorized representative:

  	
  /s/ Xiaohong Kou

  	
   

  
	
  Name:

  	
  Xiaohong
  Kou

  
	
  Title:

  	
  Legal Representative