Exhibit 10.37


 


Exclusive Business Cooperation Agreement


 


This
Exclusive Business Cooperation Agreement (this “Agreement”) is made and entered
into by and between the following Parties on January 10, 2008 in Beijing,
People’s Republic of China (the “PRC” or “China”).


 


	
  Party A:

  	
   

  	
  ChinaCache Network Technology
  (Beijing) Co., Ltd.

  
	
  Address:

  	
   

  	
  Floor
  6, Tower A, Galaxy Plaza, No.10 Jiu Xian Qiao Middle Road, Chaoyang District,
  100016, Beijing

  
	
   

  	
   

  	
   

  
	
  Party B:

  	
   

  	
  Shanghai Jnet Telcom Co., Ltd.

  
	
  Address:

  	
   

  	
  Room 221, No.728 Guanghua Road,
  Minhang District, Shanghai

  



 


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 services and business consulting services;


 


2.      Party B is a company with
exclusively domestic capital registered in  China and may
engage in value-added telecommunication business (“Principal
Business”) as approved by the relevant governmental authorities in China;


 


3.      Party A is willing to provide Party B with exclusive full business
supporting (technical, consulting etc.) services in
relation to the Principal Business 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, 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 


 


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any identical or similar consultations
and/or services provided by any third party and shall not establish any similar
cooperation relationship with any third party regarding the matters
contemplated by this Agreement. The Parties agree that Party A may appoint
other parties, who may enter into certain agreements described in Section 1.4
with Party B, to provide Party B with the services and/or consultations and/or
services under this Agreement.


 


1.3           Both Parties agree that, if relevant governmental approvals,
examination, or filings or registrations are necessary under the PRC laws and
regulations for the technical service or business consultation provided by
Party A or its designees as well as agreements entered into relating thereto,
Party B shall be responsible to obtain such approval, examination, filings or
registrations.


 


1.4           Service Providing Methodology


 


1.4.1        Party
A and Party B agree that during the term of this Agreement and based on actual
situation, Party B and Party A or its designees may enter into further
technical service agreements and business consultation service agreements, which
shall provide the specific contents, manner, personnel, and fees for the
specific technical services and consulting services.


 


1.4.2        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 equipment and assets lease agreements, under which Party A provides
relevant equipment and assets for Party B’s use, 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, and Provisions Regarding Profits and Losses


 


The parties agree that,
with respect to the services provided by Party A to Party B under this
Agreement, Party B shall pay Party A service fee which equals to 100% of its
net income (the “Service Fee”).  The
Service Fee shall be paid by month; with Party A’s prior written consent, the
amount of the Service Fee may be adjusted based on Party B’s operation
needs.  Party B shall, within 30 days
after the last day of each month, (a) provide Party A with Party B’s
management report and operational accounts for that month, including Party B’s
net income of that month (“Monthly Net Income”); (b) pay 100% of the
Monthly Net Income to Party A (“Monthly Payment”). Party B shall ,within 90
days after the end of each fiscal year, (a) provide Party A with Party B’s
audited financial statements for that fiscal year, which shall be audited and
certified by an independent accountant approved by Party A; (b) if the
audited financial statements indicates that there are any deficiency in the
total amount of the Monthly Payments made by Party B to Party A, Party B 


 


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shall make up the
difference to Party A.  The Parties agree
that, if Party B’s operation incurs any losses, Party A shall bear such losses
and shall compensate 100% of Party B’s losses, the methods of which include but
are not limited to arrangement by Party A of a loan to Party B to support its
continuing operation or other method negotiated and confirmed in writing by
both Parties at that time.


 


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, adopt all appropriate actions, submit all
appropriate documents and/or application, provide all appropriate assistance,
and make all other actions deemed as necessary based on Party A’s own
discretion, to grant the ownership, rights and interests in such intellectual
property to Party A, and/or improve the protection of such intellectual
property of Party A.


 


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.


 


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4.1.2        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 express 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 has obtained governmental approvals and licenses
necessary for the Principal Business;


 


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 to execute and
perform this Agreement, which will not violate any express restrictions of the
PRC laws and regulations.


 


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.


 


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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, 6.3, 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 


 


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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: Floor 6, Tower A,
Galaxy Plaza, No.10 Jiu Xian Qiao Middle Road, Chaoyang District, 100016, Beijing


 


Fax: +8610-6437 4251


 


Party B: Room 517,
Tongji Jiayuan Service Apartment, No.1033 Kangding Road, 2000041, Shanghai


 


Fax: +8621-5228
9716-810


 


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.


 


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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 in two
copies, each Party having one copy with equal legal validity.


 


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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.


 


 


	
  By:

  	
  /s/ Song Wang

  	
   

  
	
  Name: Song Wang

  	
   

  
	
  Title: Legal Representative

  	
   

  



 


 


Party B: Shanghai
Jnet Telcom Co., Ltd.


 


 


	
  By:

  	
  /s/ Yong Sha

  	
   

  
	
  Name: Yong Sha

  	
   

  
	
  Title: Legal Representative

  	
   

  



 


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