ONLINE GAME SOFTWARE SUBLICENSE AGREEMENT
Exhibit
4.157
This
License Agreement (together with the exhibits referenced and attached hereto,
the “Agreement”)
is made and entered into this 26th
day of December, 2007 (the “Effective
Date”) by and among:
Shengqu Information Technology
(Shanghai) Co., Ltd., a corporation duly organized and validly existing
under the laws of the People’s Republic of China (the “PRC”)
and having its principal place of business at Xx.0 Xxxxxx Xxxxxxxx, Xx. 000 Xxxx
Xxxx, Xxxxxx Xxx Xxxx, Xxxxxxxx 000000, the PRC (“Shengqu”
or “Licensor”);
Shanghai Xxxxxx Networking Co., Ltd.,
a corporation duly organized and validly existing under the laws of the
PRC and having its principal place of business at Xx.0 Xxxxxx Xxxxxxxx, Xx. 000
Xxxx Xxxx, Xxxxxx Xxx Xxxx, Xxxxxxxx 000000, the PRC (“Xxxxxx
Networking”);
Nanjing Xxxxxx Networking Co., Ltd.,
a corporation duly organized and validly existing under the laws of the
PRC and having its principal place of business at Room 801, 18 F International
Garden Apartment, High-technology Area, Nanjing, the PRC (“Nanjing
Xxxxxx”); and
Hangzhou Bianfeng Networking Co.,
Ltd., a corporation duly organized and validly existing under the laws of
the PRC and having its principal place of business at Floor 00 Xxxxxxx
Xxxxxxxxx, Xx 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, the PRC (“Bianfeng
Networking”).
For the
purpose of this Agreement, Xxxxxx Networking, Nanjing Xxxxxx and Bianfeng
Networking shall be referred to individually as a “Licensee” and collectively as
the “Licensees”. Each Licensee and the Licensor shall be referred to
individually as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, Shengqu engages in
the business of developing, licensing, sourcing
and
sublicensing online games;
WHEREAS, the Licensees engage
in the business of operating, publishing,
distributing
and selling online games;
WHEREAS, Shengqu and Turbine
Inc. entered into an online game license agreement for the Game (as defined
below) dated March 31,
2005 (the “Original
1
License
Agreement”), pursuant to which Shengqu has the
right to sublicense the right to operate the Game in the Territory to
Xxxxxx Networking, Nanjing Xxxxxx and Bianfeng
Networking.
WHEREAS, Shengqu desires to
grant, and Xxxxxx Networking, Nanjing Xxxxxx
and
Bianfeng Networking desire to receive, a license to operate the Game various
areas of the Territory.
NOW, THEREFORE, in
consideration of the promises and covenants contained herein and
other good and valuable consideration exchanged pursuant to the terms hereof,
and the mutual consideration, the Parties agree as set forth below.
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1
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Definitions
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As used in
this Agreement, the following terms shall have the meanings set forth below.
Capitalized terms used but not defined in this Agreement shall have the meanings
given to such terms in the Original License Agreement.
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1.1
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“Business
Day” shall mean any day other than a Saturday, Sunday or a legal
holiday in the PRC.
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1.2
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“Central-south
China” shall mean the provinces of Henan, Hubei, Guangdong and
Hainan and the Guangxi autonomous
region.
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1.3
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“Client
Software” shall mean that portion of the software to be distributed
to End Users for installation on personal computers or other devices and
designed to enable such end users to remotely access, and interact with,
the Server Software via the
Internet.
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1.4
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“East
China” shall mean the provinces of Jiangsu, Zhejiang, Anhui,
Fujian, Jiangxi and Shandong and Shanghai
Municipality.
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1.5
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“End
Users” shall mean individual users (and not entities or businesses
or Internet Cafes) located in the Territory who are offered or provided
access to the Game.
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1.6
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“Game”
shall mean the online massively-multiplayer computer game (both Client
Software and Server Software) known as “Dungeons & Dragons” (or
variations of the foregoing), which was developed by
Turbine.
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1.7
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“Intellectual
Property” shall mean inventions, articles of manufacture,
compositions of matter, methods, apparatus, improvements thereof, ideas,
conceptions, formulas, data, programs, other works of authorship,
derivative works, know-how, improvements, discoveries, developments,
designs and
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techniques,
technical or business information, names or marks, characters, other
proprietary information, or any other intellectual property anywhere in
the world, whether tangible or
intangible.
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1.8
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“Intellectual
Property Rights” shall mean all proprietary and intellectual
property rights worldwide, including without limitation any and all
utility patents, design patents, industrial registrations, copyrights,
trademarks, trade secrets, moral rights, character rights, sui generis
protection, rights of publication, rights of privacy, trade dress, state
law right, and any other worldwide intangible or tangible right anywhere
in the world that is related to Intellectual Property (including without
limitation any pending registrations, applications, divisionals,
continuations, derivatives, reissues, and reexaminations associated
therewith).
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1.9
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“Licensed
Marks” shall mean the Localized Game Marks and such other
trademarks expressly authorized in writing by Shengqu to be used by the
Licensees.
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1.10
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“Localized
Game Marks” shall mean the trademarks registered in Mandarin
Chinese for the Game.
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1.11
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“North
China” shall mean Beijing and Tianjin Municipalities, Hebei and
Shanxi provinces and the Inner Mongolia autonomous
region.
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1.12
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“North-east
China” shall mean the territory of Liaoning, Jilin and Heilongjiang
Provinces.
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1.13
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“North-west
China” shall mean the provinces of Shanxi, Gansu and Qinghai, and
the Ningxia and Xinjiang autonomous
regions.
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1.14
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“Online
Services” shall mean the underlying and supporting online game
services (including, but not limited, to Web portals, customer support,
billing, quality assurance, technical support, live operations, network
operations, online customer relations, account support, and other
personnel and/or elements) necessary to operate the Server Software and
the game data centers so as to permit online Internet access and play by
End Users using the Client
Software.
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1.15
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“Server
Software” shall mean that portion of the Game that is designed to
allow multiple end users that have the Client Software installed and/or
running on remote personal computers or devices to interact with each
other online via the Internet.
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1.16
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“South-west
China” shall mean the provinces of Sichuan, Guizhou
and
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Yunnan,
Chongqin Municipality and the Tibet autonomous
region.
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1.17
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“Territory”
shall mean Ease China, North-east China, North China, North-west China,
South-west China and Central-south
China.
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Each of
the following terms shall have the meanings ascribed to them in the Sections set
forth opposite such terms:
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“Agreement”
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Preamble
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“Distribution
Rights”
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Section
2.1
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“Effective
Date”
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Preamble
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“Party”
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Preamble
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“PRC”
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Preamble
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“Term”
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Section
4.1
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2
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License
Grant
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2.1
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Grant. During
the Term of this Agreement, Shengqu hereby grants to (i) Xxxxxx Networking
a license for North China, North-west China and South-west China, (ii)
Nanjing Xxxxxx a license for Central-south China and East China, and (iii)
Bianfeng Networking a license for North-east China (the “Distribution
Rights”) to:
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(a)
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provide
the Online Service to End Users;
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(b)
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promote,
market, operate, maintain, offer and distribute the software for the
Localized Game in the Territory; and in connection therewith, copy and use
textual, sound and/or graphical content pertaining to the Game, including
the characters, stories and sound recordings, in marketing
collateral;
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(c)
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install,
copy and use the Game for purposes of operating, maintaining, and
distributing the Online Services in the
Territory;
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(d)
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reproduce
and distribute (either directly or indirectly) the Client Software of the
Game (in object code form only) to End Users located in the Territory in
connection with the Online Services;
and
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(e)
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copy,
use and display the Licensed Marks in the Territory in connection with the
promotion, marketing, support, offering, copying, distribution and
sublicensing of the Game.
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2.2
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Original License
Agreement. Prior to the Effective Date, Shengqu
has
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provided
a copy of this Agreement to Turbine and, as required under the Original
License Agreement, obtained the consent of Turbine to enter into this
Agreement. The Licensees agree to exercise the Distribute Rights granted
herein in accordance with the terms and conditions relating to the
exercise of Distribution Rights as set forth in the Original License
Agreement.
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3
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License
Fees and Royalty Fees
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3.1
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License
Fees. In consideration of the rights
have been granted by
Turbine to Shengqu,
and Shengqu had paid to Turbine the initial fees of RMB
31,892,800 now
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(i)
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Xxxxxx Networking shall pay to
Shengqu the sublicense fees of RMB13,000,000;
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(ii)
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Nanjing Xxxxxx shall pay to
Shengqu the sublicense fees of RMB17,000,000;
and
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(iii)
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Bianfeng Networking shall pay to
Shengqu the sublicense fees of RMB1,892,800.
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3.2
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Royalty
Fees. In
further consideration of the distribution rights and related rights
granted by Shengqu to the Licensees hereunder, the Licensees shall pay to
Shengqu a royalty fee equal to 26% of revenues on a monthly
basis.
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3.3
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Royalty
Statements. The Licensees shall provide
Shengqu with a
statement within ten
(10) Business Days of the end of each calendar month during the Term of
this Agreement.
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3.4
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Royalty
Payments. All payments of royalty fees shall be computed by the
Licensees on a monthly basis, and shall be due and
payable by wire transfer to a bank account designated
by Shengqu by the
30th day of the month after the month in which Shengqu confirms the
royalty statement under Clause
3.3.
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3.5
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Shengqu shall provide the Licensees with a receipt for a monthly
royalty payment by the 15th day after the Licensees makes such monthly royalty
payment.
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4
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Terms
and Termination
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4.1
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Term. The initial term of this Agreement
shall commence on the Effective Date and
shall expire at the end of the initial term of the Original License
Agreement.
The initial term and
all extensions and renewals thereof shall collectively be referred to as
the “Term.”
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4.2
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Termination.
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(a)
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Mutual
Termination Rights. Each Party may terminate this
Agreement, without penalty or liability to such Party, immediately upon written notice
thereof (i) in the event of the commencement of any liquidation,
dissolution, voluntary or involuntary bankruptcy, insolvency, receivership
or similar proceeding of the other Party; (ii) if the other Party is
unable to pay its
debts as they become due, has explicitly or implicitly suspended payment
of its debts as they become due (except debts contested in good faith) or
if the creditors of the other Party have taken over its management or
a substantial part of its
assets.
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(b)
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Shengqu Termination
Rights. This Agreement may be terminated by
Shengqu, without penalty or liability to Shengqu, (i) upon providing
written notice thereof to the Licensees, or (ii) immediately in the event
that the Original License Agreement expires or is
terminated.
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4.3
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Termination
Effect. The Parties
agree that upon the expiration of the Term or earlier termination of this
Agreement, and except as may be otherwise mutually agreed in writing by
the Parties:
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(a)
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All
rights and obligations of the Parties under this Agreement, except as
provided in Section 4.4 (Survival) below, shall terminate and no longer be
valid or bind the Parties. Without limiting the generality of the
foregoing.
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(b)
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All
accrued royalty fees due for periods prior to such expiration or
termination shall become due and payable within thirty (30) Business Days
following the later of (i) the date of such expiration or termination; and
(ii) the receipt by the Licensees of Shengqu’s invoice for such royalty
fees.
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4.4
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Survival. The provisions
of Section 4.3 (Termination Effect), Section 4.4
(Survival) and
Section 5.3
(Disputes and
Governing Law) of this Agreement shall survive the termination or expiration of this
Agreement.
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5
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Miscellaneous
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5.1
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Assignment. No Licensee may assign or transfer its rights
under this Agreement to a third party without
the prior written consent of the other Licensor.
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5.2
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Entire
Agreement. This Agreement
constitutes the entire agreement between the Parties with respect to the subject
matter hereof, and merges, revokes and supersedes all prior and
contemporaneous agreements, understandings, arrangements, documents and
communications (whether written or oral) between the Parties and is
intended as a final expression of their
agreement.
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5.3
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Disputes and Governing
Law. This Agreement shall be construed in
accordance with the laws of the PRC. Any disputes that arise in connection
with this Agreement shall be litigated in courts located within the Pudong
New Area, Shanghai, the PRC.
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5.4
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Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. This Agreement may be executed and delivered by facsimile and
transmission by facsimile shall be considered proper delivery for legal
purposes.
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blank]
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IN WITNESS WHEREOF, the
Parties have executed this Agreement through their duly authorized
representatives on the date first set forth above.
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SHENGQU INFORMATION (SHANGHAI) CO.,
LTD.
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By: ____________________________
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Name: Chen
Tianqiao
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Title: Chief Executive
Officer
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SHANGHAI XXXXXX NETWORKING CO.,
LTD.
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By: ____________________________
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Name: Xxxx
Xxxxxx
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Title: Senior Vice
President
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NANJING XXXXXX NETWORKING CO.,
LTD.
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By: ____________________________
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Name: Tan
Qunzhao
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Title: President
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HANGZHOU BIANFENG NETWORKING CO.,
LTD.
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By: ____________________________
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Name: Wang
Jingying
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Title: Senior Vice
President
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