Exhibit
10.39


 


CONFIDENTIAL TREATMENT


REQUESTED PURSUANT TO RULE 406


 


CDN SERVICE FRAMEWORK AGREEMENT


 


Contract No.: T-044-COM-20090317-01


 


Party A: Shenzhen Tencent Computer Systems Co., Ltd.


 


Address: 
Floors 5 to 10, Fiyta Plaza, South District, Shenzhen Technology Park


 


Legal Representative: Ma Huateng


 


Contact Person: Liu Jianjuan


 


Telephone: 0755-86013388-5693    Fax: 0755-86013021


 


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


 


Address: 
Floor 6, Galaxy Plaza, No.10 Jiuxianqiao Middle Road, Chaoyang District,
Beijing


 


Legal Representative: Kou Xiaohong


 


Contact Person: Chen Zhizhen


 


Telephone: (86755) 88251702    Fax: (86755) 88251701


 


Party A and Party B have reached the following
agreements through negotiation with respect to the provision of CDN services by
Party B to Party A, and intend to be bound by said agreements:


 


1.     Definitions


 


1.1.       CDN
Services: means “Content Delivery Network” services, by which Party B publishes
the contents of client’s website to the “edges” of the Internet which is closest
to users through its service system that is set up by various ISP (Internet
Service Provider) and IDC (Internet Data Center), so as for users of client’s
website to obtain necessary contents nearby, to resolve the problem of Internet
congestion, and to transmit website contents rapidly and steadily to users of
client’s website.


 


1.2.       Published
Contents: means the contents owned by Party A which become the object of the
CDN Services.


 


2.     Content of Services


 


2.1.       Party
A hereby entrusts Party B with the CDN services for its picture,
download and stream media services, and the
CDN service area is: within the People’s Republic of China.


 


CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY ***, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


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2.2.       Categorization
of the CDN Services: picture, download, and stream
media; No differentiation will be made among different business
of different internal departments of Tencent.


 


3.     Term of Services


 


3.1.       This
agreement is effective for one year, from April 1, 2009 to March 31,
2010.


 


4.     Fees and Payment


 


4.1.       The
fees involved in this agreement shall be
in RMB.  Party A is entitled to modify
the following fee calculation method upon changes of business development and
technologies, but shall notify Party B for negotiation one month in advance.


 


4.2.       CDN
Bandwidth Unit Price


 


The step unit prices for bandwidth
expenses are as follows:


 


	
  Rich media flow level (G)

  	
   

  	
  <20

  	
   

  	
  >=20 & <30

  	
   

  	
  >=30 & <40

  	
   

  	
  >40

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rich media unit price (RMB/G/month)

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Imagecache flow level (G)

  	
   

  	
  <30

  	
   

  	
  >=30 & <40

  	
   

  	
  >=40 & <60

  	
   

  	
  >60

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Imagecache unit price (RMB/G/month)

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Download flow level

  	
   

  	
  <40

  	
   

  	
  >=40 & <60

  	
   

  	
  >=60 & <80

  	
   

  	
  >80

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Download unit price (RMB/G/month)

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rich media storage service fees

  	
   

  	
  Unit price: *** yuan/TBytes/month; total fees
  shall be the product of Party A’s actually used storage multiplied by the
  unit price.

  



 


4.3.       Billing and Settlement


 


4.3.1.     Bandwidth
Collection:


 


CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY ***, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


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4.3.1.1.       Collection
Method: bandwidth shall be collected from the server net card or switchboard
port, or be calculated based on the logs, each subject to negotiations of the parties .  The parties will negotiate to
determine based on the nature of business.


 


4.3.1.2.       Collection
Period: bandwidth shall be collected every five minutes.  If the design of Party B’s webmaster system
is to collect every one minute, the average value during every 5 minutes shall
be the final collected amount for said period. 
If the design of Party B’s webmaster system uses
other method of collection, the parties shall agree otherwise on the period for
collection.  If Party B changes the
collection method without written consent of the purchase center, it shall be
subject to the penalties set forth in Section 7.5 of this agreement.


 


4.3.2.     Calculation
of Total Bandwidth: Party A’s business is divided into 3 categories: picture,
download and stream media; bandwidth for the same category of business under
different domain names and directories shall be calculated accumulatively.  For example, if there are several domain
names under Party A’s download business, each domain name has several
directories, and each directory has several files, the bandwidth resulting from Party
A’s users downloading such files shall be accumulated after being
collected with the above methods so as to generate the aggregate bandwidth for
the download business.  The calculation
for picture and stream media business shall be the same.


 


4.3.3.     Calculation
of Settlement Bandwidth:


 


4.3.3.1.       Using
the above rules, the total bandwidth shall be calculated every 5 minutes in 24
hours per day, and thus there will be 24*60/5=288 bandwidth values, the highest
of which shall be the bandwidth peak value of the day; the average of the peak
values of each day during a month shall be the settlement bandwidth of the
month for the business.


 


4.3.3.2.       For
download and stream media business, the parties shall agree to a ceiling of the
daily peak value, and Party B shall adopt rate-limiting measures to prevent the
flow from exceeding the ceiling; whenever the daily bandwidth peak value
exceeds the ceiling, the agreed ceiling shall be the settlement bandwidth of
said day.  The determination and change
of the bandwidth ceiling by Party A shall be notified to Party B.


 


4.3.3.3.       The
source bandwidth for stream media business from April 1, 2009 to May 31,
2009 shall be counted into the settlement bandwidth and be borne by Party A;
since June 1, 2009, such part shall no longer be counted into the
settlement bandwidth and shall be borne by Party B.


 


4.3.4.     Party
B undertakes to collect and provide Party A with settlement data completely in
accordance with the parties’ agreement (including this agreement and its
supplementary agreements), and to be responsible for the correctness and
completeness of such data.  During the
implementation of this agreement, Party A will, from time to time,
examine the actually occurred amount of the settlement bandwidth, and Party B
shall cooperate and 


 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY ***, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.


 


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provide necessary data or materials.  If after examination, Party B is found to
have over charges, it shall refund the overcharged amount.


 


4.3.5.     Payment
Method: payment by month, Party A shall pay Party B the payment for the
previous month before the 15th day of every month, and Party B shall send to
Party A the flow statement, statement of account and payment advice
for the previous month for its confirmation before the 3rd day of every month, which date
may be extended upon holidays (for example, Party B shall send to Party A
the flow statement, statement of account and payment advice
for March for its confirmation before April 3;
if there’s no problem after review, Party A shall pay Party
B the payment for March before May 15). Party B shall provide to
Party A sufficient and valid invoices before payment.


 


5.     Special Provisions


 


Party A authorizes its purchase center as the
exclusive connector for relevant business in the performance of this agreement
(including fees settlement, making orders, exceptions connector etc.). Any
actions, undertakings or operation by other departments or personnel of Party A
without Party A’s express written authorization shall not bind upon
Party A.


 


The contact person for Tencent purchase center is
as follows, and any adjustment thereof is subject to Tecent’s written
notification:


 


Contact Person: Liu Jianjuan              Email:
elimyliu@tencent.com


 


Telephone:
0755-86013388-5693       Fax: 0755-86013021


 


6.     Rights and Obligations of the Parties


 


6.1.       Party
A’s Rights and Obligations


 


6.1.1.     If
Party A wants to change configurations relevant to CDN, it shall notify Party B
in advance to ensure that the CDN services will not be cut off by accident.


 


6.1.2.     Party
A shall communicate with Party B regarding any changes to its servers, and
Party B will assist Party A to prevent accidental cut-off of CDN services due
to poor configurations.


 


6.1.3.     Party
A shall promptly make payment to Party B under this agreement.


 


6.2.       Party
B’s Rights and Obligations


 


6.2.1.     Party
B shall provide the CDN Services to Party A, make configurations and online
tests for Party A, and report to Party A about the functions that the
configurations can achieve.


 


6.2.2.     Party
B shall make daily maintenance and supervision to the CDN nodes to ensure that
Party A’s servers will receive normal CDN services.


 


6.2.3.     Party
B shall provide 24*7 technical services for Party A.  Technical services mean daily maintenance,
supervision of CDN nodes and prompt trouble shooting.


 


CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY ***, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


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6.2.4.     During
the period in which Party B provides CDN Services to Party A, Party B shall not
be responsible for any cut-off of CDN Services due to any breakdown of Party A’s
servers.


 


6.2.5.     Party
B shall not be responsible for any temporary cut-off of CDN Services due to any
tests of CDN nodes required by Party A, unless Party B is at fault.


 


6.2.6.     Party
B shall not be responsible for any cut-off of CDN Services due to tests with
unreasonable configurations required by Party A, unless Party B is at fault.


 


6.2.7.     Party
B shall issue a written notification to Party A for its signature and confirmation
on the date when the CDN Services is first provided.  If there is any objection, Party A shall
submit such objection to Party B in writing within two business days after
signing and confirming the aforementioned notification.


 


6.2.8.     Party
B may charge relevant fees in accordance with this agreement.


 


7.     Termination of the Agreement and Liability of
Breach


 


7.1.       If
any party does not perform its obligations in accordance with this agreement,
the other party may terminate this agreement unconditionally, provided that
such party shall notify the breaching party in writing 5 business days in
advance.  The non-breaching party is
entitled to hold the breaching party liable for such breach, and all consequences resulting therefrom shall be borne by the breaching
party.


 


7.2.       If
Party A delays to pay any fees under this agreement, Party B is entitled to charge
liquidated damages of 0.05% per day, the highest of which shall not exceed 5%
of the delayed
payment.  If
Party B fails to provide CDN Services on the date agreed upon, Party A is
entitled to charge liquidated damages of 0.05% per day.


 


7.3.       If
this agreement is terminated due to any party’s failure to perform its
obligations under the agreement, the breaching party agrees to compensate all
losses resulting therefrom to the non-breaching party.


 


7.4.       Party
A is entitled to change part of the CDN acceleration services under this
agreement within its effective term, provided that it shall issue a written
notice to Party B one month in advance.


 


7.5.       If
Party A is overcharged due to Party B’s change of fee calculation methods,
Party B shall be subject to a penalty of twice of the overcharged part of the
fees. Meanwhile, during the period when Party A is conducting the review and
examination of fees calculation, Party A is entitled to suspend all fee
payments.


 


8.     Disclaimer Clause


 


8.1.       If
Party B needs to suspend CDN Services temporarily when conducting
configurations and maintenance of CDN nodes equipment, it shall negotiate with
Party A three business days in advance and obtain Party A’s consent, which suspension Party A recognizes as normal situation and for which
Party B shall not be liable; for any cut-off of CDN Services due to breakdown
of Party A’s servers, tests of CDN equipment required by Party A, or tests with
unreasonable configurations required by Party A, Party A recognizes them as
normal situations and for which  


 


CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY ***, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


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Party B shall not be liable; considering the
special nature of computer and Internet, for events caused by hackers, viruses,
technical adjustment by telecommunication authorities, Party A also recognizes
that Party B shall not be liable; when Party B refers to this  Clause 8,
it has the obligation to actively prevent and eliminate the occurrence of any
adverse effect, and whenever such effect has occurred, to ensure to reduce
Party A’s losses to the minimum. Party B shall not refer to this Clause 8 for any circumstance not
provided hereabove.


 


8.2.       This
Clause 8 survives the termination of this agreement.


 


9.     Dispute Resolution


 


9.1.      The
Parties shall resolve any disputes resulting from the performance of or
relating to this agreement through friendly negotiation.


 


9.2.       If
negotiation fails, the Parties agree to bring litigation at the court located
at the address of Party A.


 


10.  Force Majeure


 


10.1.     If
any party encounter force majeure and cannot perform or delay to perform this
agreement in whole or in part, such party shall inform the other party of the
situation in writing within 5 days after the occurrence of the force majeure
event, and shall provide the other party with evidence that such event causes
the non-performance or delay in performance in whole or in part within 20 days
after the occurrence of such event.


 


11.  Confidentiality


 


11.1.     Within
the term of this agreement and after its termination, each party shall bear
confidentiality obligation with respect to the contents of this agreement, and
the other party’s trade secrets or other
technology and operation information obtained by any means during the performance
of this agreement, and shall not disclose or reveal to any other third parties,
unless the current PRC laws and regulations provide otherwise or the other
party consents in writing.


 


12.  Notices


 


12.1.     Party
A’s mailing address and contact information: Floors 5 to 10, Fiyta Plaza, South
District, Shenzhen Technology Park


 


Party A’s authorized contact person: Liu
Jianjuan    Email: elimyliu@tencent.com


 


Telephone: 0755-86013388-5693    Fax: 0755-86013021


 


12.2.     Party
B’s mailing address and contact information:


 


Party B’s authorized
contact person: Chen Zhizhen    Email:
zhizhen.chen@chinacache.com


 


Telephone:
0755-88251702    Fax: 0755-88251701


 


CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY ***, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


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12.3.     Any
notices or communication required or permitted by any party for the performance
of this agreement and addressed to the mailing address and contact information
determined as required or permitted by this agreement shall be deemed duly given
upon actual receipt by the informed party, no matter by what means such notices
or communication are transmitted.


 


12.4.     The
“actually receipt” in the above paragraph means the notices or communications
arriving at the legal address or domicile of the informed party, or the mailing
address specified by the informed party.


 


12.5.     If
any party changes its mailing address or contact information, it shall notify
the other party such updated mailing address and contact information in writing
on the date of such changes, otherwise the changing party shall bear all
consequences resulting therefrom.


 


13.  Interpretation of the Agreement, Applicable Laws,
Conditions to Effectiveness and Others


 


13.1.     The
execution, implementation, interpretation, performance and dispute resolution
of this agreement are governed by the laws and regulations of the People’s
Republic of China, the rules of the telecommunication authorities and the
industry standards of the computer industry.


 


13.2.     This
agreement is executed in two copies, each party holding one copy, both of which
are with the same legal effect.  This
agreement is executed by the authorized representatives of the parties in
Shenzhen on [   ], 2009, and is effective
upon being signed and stamped by both parties.


 


(The body of the agreement ends here.)


 


 




	
  Party A: Shenzhen Tencent Computer Systems
  Co., Ltd.

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Signature by authorized representative:

  	
   

  	
  Signature by authorized representative:

  
	
   

  	
   

  	
   

  
	
  /seal/

  	
   

  	
  /seal/

  
	
   

  	
   

  	
   

  
	
  /s/ Liu Jianyuan

  	
   

  	
  /s/

  
	
   

  	
   

  	
   

  
	
  Date: March 30, 2009

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
  Bank name:

  	
   

  	
  Bank name:

  
	
   

  	
   

  	
   

  
	
  Account name:

  	
   

  	
  Account name:

  
	
   

  	
   

  	
   

  
	
  Account No.:

  	
   

  	
  Account No.:

  
	
   

  	
   

  	
   

  
	
  Address: Floors 5 to 10, Fiyta Plaza, South
  District, Shenzhen Technology Park

  	
   

  	
  Address: Floor 6, Galaxy Plaza, No.10 Jiuxianqiao
  Middle Road, Chaoyang District, Beijing

  






 


CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY ***, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.


 


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  Telephone: 86013388

  	
   

  	
  Telephone: (8601) 64373399

  
	
   

  	
   

  	
   

  
	
  Fax: 86013023

  	
   

  	
  Fax: (8601) 64374251

  






 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY ***, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.


 


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