General Terms and Conditions
1. DEFINITION AND INTERPRETATION
The definitions and rules of interpretation in this clause apply to these general terms and conditions.
Affiliate: means an entity that directly or indirectly controls, is controlled by, or is under common control by the Customer.
Agreement: means the agreement between Crobox and the Customer including the Terms and Conditions.
Authorized Users: means those employees and workers of the Customer who are authorized by the Customer to use the Product.
Business Day: means any day which is not a Saturday, Sunday or public holiday in the Netherlands.
Business Hours: means 9.00 to 17.00 local Amsterdam time, each Business Day.
Confidential Information: means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of the Agreement (including the content of the Agreement) that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
Crobox: means Crobox B.V. and/or Crobox Services B.V., both limited liability companies, incorporated under the laws of the Netherlands, whose registered office is at Amsterdam, the Netherlands and whose office address is at Kloveniersburgwal 131H, 1011 KD Amsterdam, the Netherlands and registered with the Trade Register of the Chamber of Commerce in Amsterdam, the Netherlands, under numbers 65563956 and 80401120.
Customer: means the customer of Crobox that entered into the Agreement.
Customer Site: means those website(s) owned and operated by the Customer on which Crobox agrees to implement the Product and the Services.
Data Protection Laws: means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”) as may be amended, modified or replaced from time to time, and including all related codes of practice.
Derivative Data: means information, know-how (including Crobox’s underlying data collection methodologies), data and materials that are derived, prepared or generated by Crobox and/or its sub-contractors within Crobox’s environment pursuant to (and/or as a consequence of) the Product.
Effective Date: is the date on which Crobox and the Customer enter into the Agreement.
Fees: means the fees for the Product and the Services to be paid by the Customer to Crobox and which are included and agreed upon in the Agreement.
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Personal Data: means any Personal Identifiable Information (PII), such as names, physical and/or virtual addresses (e.g. email, IP address) that can be used to correctly and unanimously identify ("single out") any data subject ("natural person"). Personal Data excludes UUID's, which are randomly generated and stored in first party cookies set by Crobox and are used to identify sessions of users (e.g. database keys).
Product: means the Software functionality and Services made available by Crobox as an application service provider (and as such functionality and services may thereafter be updated by Crobox from time to time).
Services: means all (System-based) services provided by Crobox to the Customer under the Agreement. Software: means the software object codes in machine-readable form only, necessary to operate the System, including all modifications and enhancements to such codes and scripts, consisting of, among other things, the Javascript and associated protocols provided by Crobox to the Customer pursuant to the Agreement which when implemented on the Customer Site manages the Product.
System: means a “software as a service” (SAAS) system that is an online real-time prediction/conversion/profiling engine and which (i) enables a Customer to automatically build full personal profiles of its Customer Site visitors and based on these profiles to entice and convince these visitors to make certain actions, all focusing in particular on increasing online conversion (eCommerce), and (ii) consists of, among other things, the Software.
Term: has the meaning given in clauses 13.1.
Terms and Conditions: means these general terms and conditions, which are annexed to the proposal or the Agreement and which form an integral part of and are applicable to the Agreement.
Third-Party Users: means agency partners or other third parties identified and notified to Crobox in writing which the Customer may permit to use the Product in accordance with clause 2.1 b).
Virus: means anything or device (including any software, code or file) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of data, including the reliability of any data (whether by rearranging, altering or erasing the data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement. Where the words "include(s)", "including" or "in particular" are used in the Agreement, they are deemed to have the words "without limitation" following them.
2. USE OF THE PRODUCT
Subject to the timely payment by the Customer of the Fees and solely during the Term, Crobox grants to the Customer a non-exclusive, non-transferable right to:
permit the Authorized Users to use the Product;
permit Third Party Users to use the Product; and
permit a Customer Affiliate or Affiliates to use the Product in each case solely for the Customer’s internal business operations (and if applicable the business purposes of a relevant Customer Affiliate).
The Customer shall be solely responsible for any failure of an Authorized User or Third Party User to comply with the terms of the Agreement and shall ensure that Authorized Users and Third Party Users discontinue use upon completion of work for the Customer (or if earlier, upon termination of the Agreement).
The Customer shall not:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product (as applicable) in any form or media or by any means;
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Product;
access all or any part of the Product in order to build a product or service which competes with the Product;
use the Product to provide services to third parties;
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Product available to any third party; or
(without prejudice to clause 2.1.2) attempt to obtain, or assist third parties in obtaining, access to the Product.
The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Product and, in the event of any such unauthorized access or use, promptly notify Crobox.
3. SERVICES
Crobox shall, during the Term, provide the Services.
Crobox shall use commercially reasonable endeavors to make the Services available 24 hours a day, seven days a week, except in the event of (planned or unscheduled) maintenance regarding the System.
Crobox shall, as part of the Services provide the Customer with Crobox’s customer support services during Business Hours in accordance with, and if applicable, the Agreement.
Crobox uses Customers’ first party cookies or universally unique identifiers to operate its Services.
In accordance with the service level agreement of Crobox, Crobox shall to its best and reasonable endeavors:
repair and/or solve all operational issues, problems and/or errors regarding the Services, such as downtime of Crobox’s servers as soon as reasonable possible after reporting by the Customer to the help-desk of Crobox; and
respond to support questions during Business Days between 09.00 and 17.00 hours and as soon as possible after reporting by the Customer to the help-desk of Crobox; and
offer out of hours support during key trading moments (which will be notified to Crobox by Customer and agreed in advance – e.g. Black Friday week).
4. RESELLERS
Crobox may use resellers or intermediaries for its benefit. In accordance with clause 18 and 21, any agreement entered between the Customer and a reseller or intermediary of Crobox shall in no event (directly or indirectly) affect the Agreement, the Terms and Conditions and/or any provision thereof. Crobox agrees upon separate terms from these “general terms and conditions” directly with the reseller.
5. PERSONAL DATA
The Customer shall implement the Product in accordance with all of Crobox’s reasonable instructions deemed necessary to enable Crobox to comply with applicable Data Protection Laws.
Customer acknowledges and agrees that it is the Customer’s responsibility to ensure that Customer’s use of the Product complies with all Data Protection Laws applicable to the Customer (including, in particular, with respect to the placing and use of cookies, upon which the Product relies, and the capturing of any consent to cookies required to be obtained from the relevant end user).
The Customer indemnifies Crobox for all (legal) claims, costs, and damages that may arise, for example, as a result of a claim by a third party, related to or arising out of the infringement by the Customer of any obligations under the laws and regulations related to the processing, handling or the use by the Customer of Personal Data in the context of the services or services that the Customer supplies to its consumers.
By default, Crobox shall not collect, store and/or save any Personal Data of any users from the Customers Site.
Only upon explicit and written request of Customer, Crobox shall process Personal Data in the performance of the Agreement. If so, Crobox agrees and warrants that it shall:
comply with all privacy and data protection laws and regulations applicable (including the EU General Data Protection Regulation);
process Personal Data only:
on behalf of and for the benefit of the Customer;
in accordance with the Customer’s instructions;
for the purposes authorized by the Agreement or otherwise by the Customer; and
in so far as necessary for the service rendered to the Customer and as permitted or required by law;
maintain the security, confidentiality, integrity and availability of the Personal Data;
implement and maintain appropriate technical, physical, organizational and administrative security measures;
not transfer the Personal Data outside of the borders of the European Economic Area (EEA) or countries deemed to have an adequate level of protection, without explicit approval from the Customer and the required protective measures in place;
ensure it has measures, procedures, practices and other safeguards to protect the Personal Data against:
anticipatable threats or hazards to its security and integrity; and
loss, unauthorized access to, or acquisition or use of or unlawful processing; and
promptly inform the Customer of any actual or suspected security incident or breach involving the Personal Data.
To the extent that Crobox permits a sub-contractor to process the Personal Data, Crobox shall ensure that it binds such sub-contractor to obligations which provide a similar level of protection, but in no way less restrictive, as paragraph 5.5.
Crobox shall, upon the termination of the Agreement, securely erase or destroy all records or documents containing the Personal Data. Crobox accepts and confirms that it is solely liable for any unauthorized or illegal processing or loss of the Personal Data, where Crobox fails to erase or destroy the Personal Data upon termination of the Agreement.
6. CROBOX'S OBLIGATIONS
Crobox shall perform the Services with reasonable skill and care, as may be expected from a professional service provider. In doing so, Crobox shall comply with all applicable laws and regulations with respect to its activities under the Agreement.
Notwithstanding clause 6.1, Crobox:
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over third party communications networks and facilities, including the internet. The Customer acknowledges that the Product may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
does not accept responsibility for any use of the Product contrary to Crobox’s instructions, or modification or alteration of the Product by any party other than Crobox or Crobox’s daily authorized contractors or agents;
does not warrant that the Customer’s use of the Product will be uninterrupted or error-free; nor that the Product and/or the information obtained by the Customer through the Product will meet the Customer’s requirements not explicitly communicated and agreed beforehand; and/or
is entitled to temporarily and/or completely limit the use of the Product to the extent necessary for the maintenance or upgrades needed to improve the Product, with prior notification but without any right of compensation of the Customer.
The Agreement shall not prevent Crobox from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement. Likewise, the Agreement shall not prevent Customer from entering into similar agreements with third parties.
No conditions, warranties or other terms apply to the Product supplied by Crobox under the Agreement unless expressly set out in the Agreement or the Terms and Conditions. No implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose, or conformance with description).
7. CUSTOMER’S OBLIGATIONS
The Customer shall:
provide Crobox with: (i) all necessary co-operation in relation to the Agreement; and (ii) all necessary access to such information as may be required by Crobox in order to render the Product, including but not limited to security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under the Agreement;
carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Crobox may adjust any agreed timetable or delivery schedule as reasonably necessary by providing notification reasonable time beforehand;
ensure that the Customer Affiliates, Authorized Users and Third Party Users use the Product in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorized User’s, Third Party Users, or Affiliates breach of the Agreement;
to the extent applicable, obtain and shall maintain all necessary licenses, consents, and permissions necessary for Crobox, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
be solely responsible for procuring and maintaining its own network connections and telecommunications links from its systems to Crobox’s hosting environment, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
permit and assist Crobox to monitor the Customers Site for the purpose of calculating a change of the Fee in accordance with clause 8.5.
8. FEES AND PAYMENT
The Customer shall pay the Fees to Crobox within 30 (thirty) days after receiving the invoice.
If Crobox has not received payment of an undisputed invoice for any reasons, and after reminding the Customer at least twice in a period of 30 (thirty) days, without prejudice to any other rights and remedies of Crobox, Crobox may, without liability to the Customer, disable the Customer’s access to the Product and/or all or part of the Services and Crobox shall be under no obligation to provide the Product and/or any or all of the Services while the undisputed invoice(s) concerned remain unpaid.
All amounts and fees stated or referred to in the Agreement:
shall be payable in Euro’s;
are non-cancellable and non-refundable; and
are exclusive of value added tax, which shall be added to Crobox’s invoice(s) at the appropriate rate.
All payments shall be of the gross amount specified in the Agreement without deduction of any taxes, including any non-resident withholding tax which may be imposed on payments by the Customer to Crobox.
In accordance with the Agreement, Crobox shall have the right, at any time during the Term, to adjust the monthly Fee. The announced Fee changes will become effective 1 (one) month after the notice by Crobox to the Customer of such changes. The Customer shall have the right to terminate the Agreement if it does not approve with the announced Fee change.
9. PROPRIETARY RIGHTS
The Customer acknowledges and agrees that Crobox and/or its licensors own all Intellectual Property Rights and any other rights in the Product, Software and System. Except as expressly stated in the Agreement, the Agreement does not grant the Customer any Intellectual Property Rights or any other rights or licenses in respect of the Product, Software, and System and the Customer shall not acquire or claim any rights in respect of the Product, Software, and System by virtue of the rights granted under the Agreement.
Crobox acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights and any other rights in the Customer's Site. Unless expressly stated in the Agreement, the Agreement does not grant Crobox any Intellectual Property Rights or any other rights or licenses with respect to the Customer Site and Crobox shall not acquire or claim any rights in respect of the Customer Site by virtue of the rights granted under the Agreement.
Crobox confirms that it has all the rights in relation to the Product that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
Crobox shall have the right to use, at its own risk, the Derivative Data for the purpose of research and development of the Product, Software and/or System, and the Customer hereby grants Crobox such right without any liability to Customer.
10. CONFIDENTIALITY
Each party may be given access to Confidential Information from the other party only if absolutely necessary in order to perform its obligations under the Agreement.
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
Neither party shall be responsible for any loss, destruction, alteration, or disclosure of Confidential Information caused by any third party.
The Customer acknowledges that details of the Product not publicly available, and the results of any performance tests of the Product not publicly available, constitute Crobox’s Confidential Information.
This clause 10 shall survive termination of the Agreement.
11. INDEMNITY
Crobox shall, subject to clause 11.3, defend the Customer, its officers, directors and employees against any claim that the Product infringes any Dutch patent effective as of the Effective Date only or any other Intellectual Property Rights provided that:
Crobox is given prompt notice of any such claim;
the Customer provides reasonable co-operation with Crobox in the defense and settlement of such claim, at Crobox’s reasonable expense;
Crobox is given sole authority to defend or settle the claim; and
except with Crobox’s prior written permission, the Customer makes no admission and takes no action which would compromise Crobox’s defense or settlement of the claim or any counterclaim by Crobox, unless the Customer is forced to do so due to inactivity on the side of Crobox.
In the defense or settlement of any claim, Crobox may procure the right for the Customer to continue using the Product, replace or modify the Product so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 10 (ten) Business Days’ notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer. If Crobox terminates the Agreement, any fees paid to Crobox in connection with the Agreement upfront will be refunded to the Customer pro rata within 10 (ten) days of termination.
In no event shall Crobox, its employees, agents and sub-contractors be liable to the Customer under the indemnity at clause 11.1 to the extent that the alleged infringement is based on:
a unauthorized modification of the Product by anyone other than Crobox; or
the Customer’s use of the Product in a manner contrary to the instructions given to the Customer by Crobox; or
the Customer’s use of the Product after written notice of the alleged or actual infringement from Crobox or any appropriate authority.
The foregoing states the Customer’s sole and exclusive rights and remedies, and Crobox’s (including Crobox’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
12. LIMITATION OF LIABILITY
Subject to the provisions of clause 12.4, this clause 12 sets out the entire (financial) liability of Crobox (including any liability for the acts or omissions of Crobox’s employees, agents and sub-contractors) to the Customer respect of:
any breach of the Agreement;
any use made by the Customer of (any part of) the Product; and
any representation, statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with the Agreement.
Subject to clause 12.4 and except as expressly and specifically provided in the Agreement, the Customer assumes sole responsibility for results obtained from the use of the Product by the Customer, and for conclusions drawn from such use.
Crobox shall have no liability for any damage caused by:
any Virus and/or update of the System/Software causing any damages in so far as (i) Crobox has properly and timely notified the Customer of such Virus and/or update causing damages and (ii) the damages occur without any default of Crobox;
any downtime of Crobox’s servers or the System;
errors or omissions in any information, instructions or scripts provided to Crobox by the Customer in connection with the Product; or
any actions taken by Crobox at the Customer’s direction, unless Crobox must have been aware but omitted to inform the Customer of the risks involved.
Nothing in the Agreement excludes the liability of Crobox:
for death or personal injury caused by negligence;
for fraud or fraudulent misrepresentation; or
for any other liability which may not be limited or excluded by applicable laws.
Subject to clause 12.4, Crobox shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any (in)direct damages, such as loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.
The Parties’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total sum of monthly Fees paid by the Customer to Crobox from the Effective Date until the date on which the first such claim arose.
13. TERM AND TERMINATION
The Agreement shall commence on the Effective Date and shall continue until terminated by either party in accordance this clause (the “Term”).
A party may terminate the Agreement 1 (one) month prior to the end of the then current term upon a written notice to the other party. The Agreement shall only be terminated after confirmation by the other party of receiving such termination notice.
Without prejudice to any other rights or remedies which the parties may have, Crobox may terminate the Agreement without liability to the Customer immediately on giving written notice to the Customer if the Customer fails to pay any undisputed amount due under the Agreement on the due date for payment and remains in default not less than 30 (thirty) days after being notified in writing to make such payment.
Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving written notice to the other if:
(i) the other party is in material breach of the Agreement where the breach is incapable of remedy; or (ii) the other party is in material breach of the Agreement where the breach is capable of remedy and fails to remedy that breach within 14 days after receiving written notice of such breach;
the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership, or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or
any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
On termination of the Agreement for any reason:
all licenses granted by Crobox under the Agreement shall immediately terminate;
the Customer can no longer use the Product, nor access to any profiles of Customer Site visitors;
each party shall return or destroy as directed by the other party and make no further use of any equipment, property, Confidential Information and other items (and all copies of them) belonging to the other party; and
the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving or coming into effect after termination, shall not be affected or prejudiced.
14. FORCE MAJEURE
Neither party shall have any liability to the other under or in connection with the Agreement if it is prevented from, or delayed in performing, its obligations under the Agreement or from carrying on its business by acts, events, omissions, or accidents beyond its reasonable control. These include (without limitation) strikes, lock-outs, or other industrial disputes (whether involving the workforce of either party to the Agreement or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15. VARIATION
Crobox may, from time to time and subject to Customer’s prior written consent, which shall not be unreasonably withheld or delayed, change the Product, provided that such changes do not materially affect the nature or quality of the Product and, where practicable, it will give the Customer at least 1 (one) month’s notice of any change.
Subject to clause 15.1, no variation of the Agreement shall be valid unless it is by written notice agreed upon by both parties.
16. WAIVER
A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
17. SEVERANCE
If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
If a provision of the Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.
18. ENTIRE AGREEMENT
The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in the Agreement.
19. ASSIGNMENT
Neither party may assign any of its rights or obligations under the Agreement without the prior written consent of the other. Such consent is not to be unreasonably withheld save that either party can assign to any of its Affiliates without the consent of the other.
Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
20. NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
21. RIGHTS OF THIRD PARTIES
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
22. NOTICES
Any notice required to be given under the Agreement shall be in writing, including email.
This clause 22 shall not apply to the service of any in any proceedings or other documents in any legal action.
23. GOVERNING LAW AND JURISDICTION
The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of the Netherlands.
The parties irrevocably agree that the court of Amsterdam shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claim).
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