Exhibit 10.4  


ETFS ASIAN GOLD TRUST

MARKETING AGENT AGREEMENT


MARKETING AGENT AGREEMENT
(the “Agreement”) made as of January 10, 2011, on behalf of ETFS Asian Gold
Trust, a New York trust (the “Fund” or the “Trust”), by and among ETFS
Marketing, LLC, a Delaware limited liability company, as agent of the Fund
(“ETFS Marketing”) and ALPS Distributors, Inc., a Colorado corporation (the
“Marketing Agent”). Capitalized terms used
but not defined in this Agreement shall have the meaning ascribed thereto in
the Trust’s Prospectus included its Registration Statement on Form S-1
(Registration No. 333-168277), as it may be amended from time-to-time.


W I T N E S S E T H:


WHEREAS, ETF Securities
USA LLC, as sponsor of the Trust (the “Sponsor”), on behalf of the Fund, has
filed with the Securities and Exchange Commission (the “Commission” or “SEC”) a
registration statement on Form S-1 (Registration No. 333-168277) and amendments thereto, including as part thereof a
prospectus (the “Prospectus”), under the Securities Act of 1933, as amended
(the “1933 Act”), the forms of which have heretofore been delivered to the
Marketing Agent; and


WHEREAS, ETFS Marketing has been engaged to provide
marketing services in the United States; and


WHEREAS,
the Trust and ETFS Marketing wish to employ the Marketing Agent in connection
with the performance of the services listed in Schedule A and additional
services as may be agreed from time-to-time; 


NOW, THEREFORE, in consideration
of the mutual promises and undertakings herein contained, the parties agree as
follows:


1.
Registration — ETFS Marketing has furnished or will furnish, upon request, the
Marketing Agent with copies of the Trust’s trust agreement, custodian
agreements, transfer agency agreement, current prospectus, and all forms relating
to any plan, program or service offered by the Trust. ETFS Marketing shall
furnish, within a reasonable time period, to the Marketing Agent a copy of any
amendment or supplement to any of the above-mentioned documents. Upon request,
ETFS Marketing shall furnish promptly to the Marketing Agent any additional
documents necessary or advisable to perform its functions hereunder. As used in
this Agreement the terms “registration statement,” “prospectus” shall mean any
registration statement and prospectus filed by the Trust with the SEC and any
amendments and supplements thereto that are filed with the SEC.


2. Representations
and Warranties of ETFS Marketing – ETFS Marketing represents and warrants
and covenants the following: 


(a) ETFS Marketing has
been duly organized and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware, with full power and
authority to conduct its business as described in the Registration Statement
and the Prospectus, and has all requisite power and authority to execute and
deliver this Agreement;


(b) the Fund and ETFS
Marketing are duly qualified and are in good standing in each jurisdiction
where the conduct of its business requires such qualification; and





(d) this Agreement has been
duly authorized, executed and delivered by ETFS Marketing and constitutes the
valid and binding obligations of ETFS Marketing, enforceable against ETFS
Marketing in accordance with its terms.


3. Representations and Warranties of the Marketing
Agent - The
Marketing Agent represents and warrants and covenants the following: 


(a) The Marketing Agent is registered as a broker-dealer under the
Exchange Act, and is a member in good standing of the Financial Industry
Regulatory Authority (“FINRA”) and is qualified to act as a broker or dealer in
the states or other jurisdictions where the nature of its business so requires;
and has all other necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal, state,
local or foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other Persons, in order to conduct
its activities as contemplated by this Agreement. The Marketing Agent will maintain
any such registrations, qualifications and membership in good standing and in
full force and effect throughout the term of this Agreement. The Marketing
Agent will comply with all applicable federal laws, including but not limited
to, federal securities and commodities laws, the laws of the states or other
jurisdictions concerned, and the rules and regulations promulgated thereunder,
and with the Constitution, By-Laws and Conduct Rules of FINRA; 


(b) The Marketing Agent
(i) has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Colorado, with full power and authority
to conduct its business and has all requisite power and authority to execute
and deliver this Agreement and (ii) is duly qualified and is in good standing
in each jurisdiction where the conduct of its business requires such
qualification; and


(c) This Agreement has
been duly authorized, executed and delivered by the Marketing Agent and
constitutes the valid and binding obligations of the Marketing Agent,
enforceable against the Marketing Agent in accordance with its terms.


4. Fees
and Trust Expenses — (a) In consideration of the services to be performed
by the Marketing Agent hereunder as set forth on Schedule A attached
hereto and as it may be amended from time-to-time, ETFS Marketing will
pay the Marketing Agent an annual fee in the amount of $12,500 per annum to be
paid in 1/12 equal monthly installments commencing on launch date of the Trust,
subject to any limitation imposed by any law, rule or regulation applicable to
any of the parties hereto. The maximum compensation Marketing Agent may receive
under this Agreement, as a result of the Trust’s offering, is estimated to be
$93,135, which includes $55,635 (fees) and $37,500 (expenses). The Trust is not
responsible for the payment of any amounts to the Marketing Agent. The maximum
compensation that will be paid for wholesaling salaries, as a result of this
offering, is estimated to be $236,250, which is solely the responsibility of
ETFS Marketing.


(b)
ETFS Marketing shall reimburse the Marketing Agent for any reasonable
fees or disbursements incurred by the Marketing Agent in connection with the
performance by the Marketing Agent of its duties under and pursuant to this
Agreement including, but not limited to, the items identified as Out of Pocket
Expenses in Schedule B of this agreement. These fees shall not exceed $55,635
for the three-year period beginning from the date of this agreement. Further, unless otherwise agreed to by the parties hereto
in writing, the Marketing Agent shall not be responsible for fees and expenses
in connection with (a) filing of any registration statement, printing and the
distribution of any prospectus under the 1933 Act and amendments prepared for
use in connection with the offering of shares for sale to the public,
preparing, setting in type, printing and mailing the prospectus, and any
supplements thereto sent to shareholders of the Trust, (b) preparing, setting
in type, printing and mailing any report (including annual and semi-


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annual
reports) or other communication to shareholders of the Trust, and (c) the Blue
Sky registration and qualification of shares of the Trust for sale in the
various states in which the officers of the Trust shall determine it advisable
to qualify such shares of the Trust for sale (including registering the Trust
as a broker or dealer or any officer of the Trust or any Trust as agent or
salesman in any state). 


5. Use
of the Marketing Agent’s Name — Neither the Trust nor ETFS Marketing, or any
of their affiliates, shall use the name of the Marketing Agent, or any of its
affiliates, in any prospectus, sales literature, and other material relating to
the Trust in any manner without the prior written consent of the Marketing
Agent (which shall not be unreasonably withheld); provided, however,
that the Marketing Agent hereby approves all lawful uses of the names of the
Marketing Agent and its affiliates in the prospectus of the Trust and in all
other materials which merely refer to accurate terms to their appointment
hereunder or which are required by the SEC, FINRA, OCC or any state securities
authority.


6. Use
of the Trust’s Name — Neither the Marketing Agent nor any of its affiliates
shall use the name of the Trust in any publicly disseminated materials,
including sales literature in any manner without the prior consent of ETFS
Marketing (which shall not be unreasonably withheld); provided, however,
that ETFS Marketing hereby approves all lawful uses of its or the Trust’s names
in any required regulatory filings of the Marketing Agent which merely refer in
accurate terms to the appointment of the Marketing Agent hereunder, or which
are required by the SEC, FINRA, or any state securities authority.


7. Indemnification of Marketing Agent
- ETFS Marketing agrees to indemnify, defend and hold harmless the Marketing
Agent, its partners, stockholders, members, directors, officers and employees
of the foregoing, and the successors and assigns of all of the foregoing, from
and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Marketing Agent or any such person
may incur under the 1933 Act, the Securities Exchange Act of 1934 (the
“Exchange Act”), the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon:


	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 any untrue statement or
 alleged untrue statement of a material fact contained in the Registration
 Statement (or in the Registration Statement as amended or supplemented) or in
 a Prospectus (the term Prospectus being deemed to include the Prospectus and
 the Prospectus as amended or supplemented), or arises out of or is based upon
 any omission or alleged omission to state a material fact required to be
 stated in either such Registration Statement or such Prospectus or necessary
 to make the statements made therein not misleading, except for any statements
 provided in writing, directly or indirectly through ETFS Marketing, by the
 Marketing Agent to the Sponsor for inclusion in such Registration Statement
 or such prospectus or any material omissions therefrom; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 any untrue statement or
 alleged untrue statement of a material fact or breach by ETFS Marketing of
 any representation or warranty contained in this Agreement;

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 the failure by ETFS
 Marketing to perform when and as required any agreement or covenant contained
 herein;

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 any untrue statement of
 any material fact contained in any audio or visual materials provided by ETFS
 Marketing or based upon written information furnished by or on behalf of ETFS
 Marketing including, without limitation, slides, videos, films or tape
 recordings used in connection with the marketing of the Trust;

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 the Marketing Agent’s
 performance of its duties under this Agreement except in the case of this
 clause (e), for any loss, damage, expense, liability or claim resulting from
 the gross 

 


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 negligence or willful
 misconduct of the Marketing Agent. In no case is the indemnity of ETFS
 Marketing in favor of the Marketing Agent deemed to protect the Marketing
 Agent against any liability to ETFS Marketing to which the Marketing Agent
 would otherwise be subject by reason of willful misfeasance, bad faith or
 gross negligence in the performance of its duties or by reason of its reckless
 disregard of its obligations and duties under this Agreement.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 If any action, suit or
 proceeding (each, a “Proceeding”) is brought against the Marketing Agent in
 respect of which indemnity may be sought against ETFS Marketing pursuant to
 the foregoing paragraph, the Marketing Agent shall promptly notify ETFS
 Marketing in writing of the institution of such Proceeding and ETFS Marketing
 shall assume the defense of such Proceeding, including the employment of
 counsel reasonably satisfactory to such indemnified party and payment of all
 fees and expenses; provided, however, that the omission to so notify ETFS
 Marketing shall not relieve ETFS Marketing from any liability which it may
 have to the Marketing Agent hereunder except to the extent that it has been
 materially prejudiced by such failure. The Marketing Agent shall have the
 right to employ its or their own counsel in any such case, but the fees and
 expenses of such counsel shall be at the expense of the Marketing Agent
 unless the employment of such counsel shall have been authorized in writing
 by ETFS Marketing in connection with the defense of such Proceeding or ETFS
 Marketing shall not have, within a reasonable period of time in light of the
 circumstances, employed counsel to have charge of the defense of such
 Proceeding or such indemnified party or parties shall have reasonably
 concluded that there may be defenses available to it or them which are
 different from, additional to or in conflict with those available to ETFS
 Marketing (in which case ETFS Marketing shall not have the right to direct
 the defense of such Proceeding on behalf of the indemnified party or
 parties), in any of which events such fees and expenses shall be borne by
 ETFS Marketing and paid as incurred (it being understood, however, that ETFS
 Marketing shall not be liable for the expenses of more than one separate
 counsel (in addition to any local counsel) in any one Proceeding or series of
 related Proceedings in the same jurisdiction representing the indemnified
 parties who are parties to such Proceeding).

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 ETFS Marketing shall
 not be liable for any settlement of any Proceeding effected without ETFS
 Marketing’s written consent, but if settled with ETFS Marketing’s written
 consent, ETFS Marketing agrees to indemnify and hold harmless the Marketing
 Agent from and against any loss or liability by reason of such settlement.
 Notwithstanding the foregoing sentence, if at any time an indemnified party
 shall have requested an indemnifying party to reimburse the indemnified party
 for fees and expenses of counsel as contemplated by the second sentence of
 the foregoing paragraph, then the indemnifying party agrees that it shall be
 liable for any settlement of any Proceeding effected without its written
 consent if (i) such settlement is entered into more than 60 Business Days
 after receipt by such indemnifying party of the aforesaid request, (ii) such
 indemnifying party shall not have fully reimbursed the indemnified party in
 accordance with such request prior to the date of such settlement and (iii)
 such indemnified party shall have given the indemnifying party at least 30
 Business Days’ prior notice of its intention to settle. No indemnifying party
 shall, without the prior written consent of the indemnified party, effect any
 settlement of any pending or threatened Proceeding in respect of which any
 indemnified party is or could have been a party and indemnity could have been
 sought hereunder by such indemnified party, unless such settlement includes
 an unconditional release of such indemnified party from all liability on
 claims that are the subject matter of such Proceeding and does not include an
 admission of fault, culpability or a failure to act, by or on behalf of such
 indemnified party.

 


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8. Indemnification of ETFS Marketing and the
Trust - The Marketing
Agent agrees to indemnify, defend and hold harmless ETFS Marketing and the
Trust, their partners, shareholders, members, directors, officers and employees
of the foregoing, and the controlling persons of all of the foregoing, within the
meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act, and
the successors and assigns of all of the foregoing, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which ETFS Marketing may incur under the 1933 Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing, directly or indirectly through ETFS
Marketing, by or on behalf of the Marketing Agent to the Sponsor expressly for
use in the Registration Statement (or in the Registration Statement as amended
or supplemented by any post-effective amendment thereof) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading.


The Marketing Agent will
also indemnify ETFS Marketing and the Trust as stated above insofar as such
loss, damage, expense, liability or claim arises out of or is based upon the
Marketing Agent’s performance of its duties under this Agreement, except in the
case of any loss, damage, expense, liability or claim resulting from the gross
negligence or willful misconduct of ETFS Marketing or the Trust. In no case is
the indemnity of the Marketing Agent in favor of ETFS Marketing and the Trust
to be deemed to protect ETFS Marketing and the Trust against any liability to
the Marketing Agent to which ETFS Marketing or the Trust would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of ETFS
Marketing’s obligations and duties under this Agreement.


If any Proceeding is
brought against ETFS Marketing or the Trust in respect of which indemnity may
be sought against the Marketing Agent pursuant to the first paragraph of this
Section 8, ETFS Marketing shall promptly notify the Marketing Agent in writing
of the institution of such Proceeding and the Marketing Agent shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Marketing Agent shall not
relieve the Marketing Agent from any liability hereunder which it may have to
ETFS Marketing except to the extent that it has been materially prejudiced by
such failure. ETFS Marketing and the Trust shall have the right to employ their
own counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of ETFS Marketing unless the employment of such counsel shall
have been authorized in writing by the Marketing Agent in connection with the
defense of such Proceeding or the Marketing Agent shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to or in conflict with those available to the Marketing Agent (in
which case the Marketing Agent shall not have the right to direct the defense
of such Proceeding on behalf of the indemnified party or parties, but the
Marketing Agent may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of the Marketing
Agent), in any of which events such fees and expenses shall be borne by the
Marketing Agent and paid as incurred (it being understood, however, that the
Marketing Agent shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). 


The Marketing Agent shall
not be liable for any settlement of any such Proceeding effected without the
written consent of the Marketing Agent but if settled with the written consent
of the Marketing Agent, the Marketing Agent agrees to indemnify and hold
harmless ETFS Marketing and the Trust from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if at any
time


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an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of the
foregoing paragraph, then the indemnifying party agrees that it shall be liable
for any settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 Business Days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 Business Days’ prior notice of
its intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding.


9. Term
— This Agreement shall become effective as of January 10, 2011, and shall
continue until two years from such date and thereafter shall continue
automatically for successive annual periods, provided that such continuance is
specifically approved at least annually by ETFS Marketing. This Agreement is
terminable without penalty on sixty (60) days’ written notice by ETFS Marketing
or by the Marketing Agent. This Agreement shall automatically terminate in the
event of its assignment.


Upon
the termination of this Agreement, the Marketing Agent, at ETFS Marketing’s
expense and direction, shall transfer to such successor, as ETFS Marketing
shall specify, all relevant books, records and other data established or
maintained by the Marketing Agent under this Agreement.


10.
Notice — Any notice required or permitted to be given by any party to
the other shall be deemed sufficient if sent by (i) telecopier (fax) or (ii)
registered or certified mail, postage prepaid, addressed by the party giving
notice to the other party at the last address furnished by the other party to
the party giving notice:


	
  

 	
  

 
	
  

 	
 if to the Trust or ETFS
 Marketing, at:

 
	
  

 	
  

 
	
  

 	
 ETFS Marketing LLC

 
	
  

 	
 555 California Street, Suite
 2900

 
	
  

 	
 San Francisco, CA 94104

 
	
  

 	
 Attn: Fred Jheon

 
	
  

 	
  

 
	
  

 	
 with a copy to

 
	
  

 	
  

 
	
  

 	
 ETFS Asian Gold Trust

 
	
  

 	
 c/o ETF Securities
 Representative Office

 
	
  

 	
 6th Floor

 
	
  

 	
 2 London Wall Buildings

 
	
  

 	
 London, EC2M 5UU

 
	
  

 	
 Telephone: 011 44 207 448-4330

 
	
  

 	
 Attention: President

 
	
  

 	
  

 
	
  

 	
 if to the Marketing Agent at:

 
	
  

 	
  

 
	
  

 	
 ALPS Distributors, Inc.

 
	
  

 	
 1290 Broadway, Suite 1100 

 
	
  

 	
 Denver, Colorado, 80203 

 
	
  

 	
 Attn: General Counsel

 


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or such other telecopier (fax)
number or address as may be furnished by one party to the other.


11.
Confidential Information — The Marketing Agent, its officers, directors,
employees and agents will treat confidentially and as proprietary information
of the Trust, all records and other information relative to the Trust. If the
Marketing Agent is requested or required by, but not limited to, depositions,
interrogatories, requests for information or documents, subpoena, civil
investigation, demand or other action, proceeding or process or as otherwise
required by law, statute, regulation, writ, decree or the like to disclose such
information, the Marketing Agent will provide ETFS Marketing with prompt
written notice of any such request or requirement so that ETFS Marketing may
seek an appropriate protective order or other appropriate remedy and/or waive
compliance with this provision. If such order or other remedy is not sought, or
obtained, or waiver not received within a reasonable period following such
notice, then the Marketing Agent may without liability hereunder, disclose to
the person, entity or agency requesting or requiring the information, that
portion of the information that is legally required in the reasonable opinion
of the Marketing Agent’s counsel.


12.
Miscellaneous — Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The Agreement shall be construed, interpreted, and enforced in
accordance with and governed by the laws of the State of Colorado. The captions
in this Agreement are included for convenience of reference only and in no way
define or delimit any of the provisions hereof or otherwise affect their
construction or effect. This Agreement may not be changed, waived, discharged
or amended except by written instrument that shall make specific reference to
this Agreement and which shall be signed by the party against which enforcement
of such change, waiver, discharge or amendment is sought. This Agreement may be
executed simultaneously in two or more counterparts, each of which taken
together shall constitute one and the same instrument.


ETFS
Marketing shall provide all information to the Marketing Agent necessary for
the Marketing Agent to perform its obligations under applicable securities laws
and regulations as they relate to the transactions contemplated in this
agreement; and agrees that its employees registered with and supervised by the
Marketing Agent will comply with the Written Supervisory Procedures of the
Marketing Agent, which may be amended from time to time.


 [Signature
Page to Follow]


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IN WITNESS WHEREOF, each of the undersigned has executed this instrument in its name and
behalf as of the date and year first above written.


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ETFS
 MARKETING, LLC

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Fred Jheon

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
 Fred Jheon

 	
  

 
	
  

 	
 Title:

 	
 President & Chief
 Executive Officer

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ALPS
 DISTRIBUTORS, INC.

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Thomas A. Carter

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
 Thomas A. Carter

 	
  

 
	
  

 	
 Title:

 	
 President

 	
  

 


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Schedule A


Marketing
Agent Services


	
  

 	
  

 
	
 §

 	
 Review marketing related legal documents and
 contracts.

 
	
  

 	
  

 
	
 §

 	
 Consult with ETFS Marketing’s marketing staff and on
 development of FINRA compliant marketing campaigns.

 
	
  

 	
  

 
	
 §

 	
 Consult with Trust’s legal counsel on marketing
 materials that are deemed to qualify as a free-writing prospectus materials and
 appropriate disclosure associated with all marketing materials.

 
	
  

 	
  

 
	
 §

 	
 Review and file applicable marketing materials with
 FINRA that don’t otherwise qualify as free-writing prospectus materials.

 
	
  

 	
  

 
	
 §

 	
 Register and oversee supervisory activities of unlimited
 number of FINRA licensed registered representatives.

 
	
  

 	
  

 
	
 §

 	
 Maintain, reproduction and storage of applicable
 books and records related to the services provided under this Agreement.

 


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