Effective Date: August 16, 2017
This Agreement includes provisions for binding arbitration on an individual basis –which includes a waiver of a right to a jury trial or a right to file a class action.
Internet technology, and the applicable laws, rules and regulations change frequently. We reserve the right to make changes to this Agreement at any time. Continued access and/or use of the Platform in any manner constitutes assent to any new Agreement that may be posted on the Platform.
1. Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
a. Cloud Integration Services. The term “Cloud Integration Services” refers to third party design, marketing, and analytic cloud services offered by Brandcast for integration within Subscriber’s Website(s) as part of the Services.
b. Content. The term “Content” shall mean any and all text, data, code, software, graphics, information, images, audio, visual or audiovisual combinations or other materials submitted, uploaded, imported, communicated or exchanged to facilitate the provision of Services under this Agreement.
c. Subscriber Content. The term “Subscriber Content” refers to any Content submitted, uploaded, imported, integrated, communicated or exchanged to the Platform by Subscriber, including any user-generated Content.
d. Subscriber Client. The term “Subscriber Client” refers to a client of Subscriber on whose behalf Subscriber is utilizing and/or managing the Services.
e. Subscription Tier. The term “Subscription Tier” refers to the subscription tier selected and purchased by Subscriber on the Platform. Each Subscription Tier offered on the Platform provides to Subscriber an allotted number of Website(s) and monthly Web Page views.
f. Subscription Fees. The Term “Subscription Fees” refers to the fees associated with the Services under the selected Subscription Tier.
g. Brandcast Trademarks. The term “Brandcast Trademarks” shall mean any trademarks, service marks, design marks, symbols, logos and/or other indicia of source owned or used under license by Brandcast, and all goodwill associated therewith.
h. Subscriber and/or Subscriber’s Client’s Trademarks. The term “Subscriber and/or Subscriber’s Client’s Trademarks” shall mean any trademarks, service marks, design marks, symbols, logos and/or other indicia of source owned or used under license by Subscriber and/or Subscriber’s Client, and all goodwill associated therewith.
i. Properties. The term “Properties” refers collectively to Subscriber Content and Subscriber and/or Subscriber’s Client’s Trademarks.
j. Website(s). Website(s). The term “Website(s)” means a collection of related Web Page(s) under a unique Subdomain, Root Domain, and Top Level Domain combination. (By way of example, in the Website address www.brandcast.com, "www" is the "Subdomain", "brandcast" is the "Root Domain", and "com" is the "Top Level Domain").
k. Web Page. The term “Web Page” means a document accessible on the internet via a common Subdomain, Root Domain, and Top Level Domain combination. (By way of example, blog.brandcast.com, blog.brandcast.com/page1, and blog.brandcast.com/page2 are separate Web Pages located at the Website blog.brandcast.com.)
2. Services. Brandcast will provide Services to Subscriber in accordance with the terms and conditions of the Subscription Tier selected by Subscriber on the Platform. Brandcast may from time to time issue updated versions of the software and Services. You consent to such automatic updates and agree that this Agreement will apply to all such upgrades.
3. Your Brandcast Account. To be eligible to use the Services, you must be at least 18 years of age or have the power to enter into a binding contract in your country of residence, establish an online account and accept this Agreement. Users are entirely responsible for maintaining the confidentiality and security of their login information. You agree to accept responsibility for any and all activities that occur under your account. You must notify us immediately if you believe your password or username has been obtained, compromised, or used by any unauthorized person or entity. You may be held liable for losses incurred by us or any third party due to a breach of your account confidentiality and/or security. Brandcast will not be liable for any loss or damage arising from your failure to keep your login and account secure.
4. End User License Agreement (“EULA”). Brandcast hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable license during the Subscription Term to access and utilize the Services pursuant to the terms of the Subscription Tier purchased by Subscriber.
a. Utilization. This EULA grants Subscriber the right to access and utilize the Services only for the number of Website(s) and Web Page views designated in the Subscription Tier purchased by Subscriber.
b. Overages. In the event Subscriber’s utilization exceeds the allotted number of Website(s) and/or average monthly page views for three (3) consecutive months, Brandcast shall automatically upgrade Subscriber’s existing Subscription Tier to the next higher volume Subscription Tier level for the remainder of the Subscription Term. Once automatically upgraded as a result of such overages, Subscriber shall be responsible for the payment of the prorated fees for the upgraded Subscription Tier for the remainder of the Subscription Term.
c. Cloud Integration Services Exclusion. Brandcast’s EULA excludes any Cloud Integration Services incorporated by Subscriber in connection with Subscriber’s access and use of the Services. Subscriber’s license to integrate such Cloud Integration Services is subject to the terms and conditions imposed by each third party service selected by Subscriber.
5. Content and Trademark License. Subscriber and Subscriber’s Client shall retain all right, title and license in the Website(s) and Properties. Subscriber hereby grants to Brandcast a non-exclusive, royalty-free, fully paid-up, worldwide right and license to collect, process, store, host, copy, transmit, display, modify, and create derivative works of any and all Website(s) and Properties in all media now known or hereinafter created, for (a) purposes of providing the Services during the Subscription Term.
6. Idea Submissions License. We consider any suggestions, ideas, proposals or other material submitted by users, whether solicited or unsolicited, (collectively, the "Material") to be non-confidential and non-proprietary. We shall not be liable for the disclosure, use or exploitation of such Material. You hereby grant to Brandcast a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Material for any purpose whatsoever, commercial or otherwise, without compensation or accounting.
7. Free and/or Beta Services. From time to time, Brandcast may offer certain Beta and/or free Services. Any beta or other Services offered on the Platform at no charge to its users may be terminated by either party at any time. Brandcast further reserves, in its sole and absolute discretion, to disable, suspend, modify or impose fees on any Services, at any time. Brandcast will notify its users of any changes in fees for Services and users will be free to terminate their account prior to the imposition of any newly imposed fees. Notwithstanding the foregoing, users shall have the ability to access their accounts and Subscriber Content following termination of their account or the Services in accordance with Section 19 of this Agreement.
8. Free Services – Badge & Promotional Licenses. As a condition for use of the beta and other Services offered by Brandcast from time to time on the Platform at no charge to its users:
a. Brandcast Badge License. Brandcast reserves the right to include a branding tagline (such as “powered by Brandcast”) and/or a Brandcast web badge, which incorporates Brandcast Trademarks and proprietary marketing and promotional materials (“Brandcast Badge”), within each Website prepared by Subscriber utilizing the Brandcast Services. Brandcast has the sole discretion to dictate the manner and method of placement on Subscriber’s Website(s), as well as the graphic and textual elements of the Brandcast Badge and branding tagline. Subscriber is granted a non-exclusive, non-transferable, non-sublicensable, revocable license to display the Brandcast Badge, which incorporates Brandcast’s trademark and service marks (the “Badge”), on Subscriber’s Client’s Website(s) for purposes of promoting Brandcast’s Services. Once incorporated within a Website, Subscriber may not (i) alter the Brandcast Badge in any manner, (ii), add or remove any element(s) to or from the Brandcast Badge, (iii) use the Brandcast Badge in any manner that implies sponsorship or endorsement by Brandcast, (iv) remove the Brandcast Badge from the Website, or (v) use the Brandcast Badge in any manner not otherwise specified in this Section.
b. Promotional License. You grant to Brandcast the unrestricted right and license to use the Properties to market and promote the Services. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display the Properties as incorporated into Brandcast’s marketing and promotional materials. Brandcast is granted no other rights to the Properties and acknowledges that it shall not gain any proprietary interest in the Properties. Brandcast is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. Brandcast shall be the exclusive owner of all right, title, and interest, including copyright, in Brandcast marketing and promotional materials. Your permission to use the Properties may be terminated at any time with thirty (30) days written notice to email@example.com
9. Subscription Fees and Term. Fee-based subscription Services are quoted in U.S. dollars on the Platform, pursuant to the following terms:
a. Payment: You expressly authorize us to charge the applicable Subscription Fees pursuant to the authorized payment method selected by you on the Platform.
b. Late Payments. In the event Brandcast is unable to process payment of the applicable fees, Brandcast reserves the right to suspend or terminate services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the greater of 1.5% monthly or the highest interest rate allowable under applicable law.
c. Subscription Term: The term of the subscription will commence on the date the subscription is selected and shall continue for the periodic subscription term chosen by you on the Platform (“Subscription Term”), and any renewal thereof, until terminated pursuant this Agreement.
d. No Refunds: Subscriber shall be responsible for all fees for the entire Subscription Term. Fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.
10. Subscription Automatic Renewal- Your Subscription Will Renew Unless You Cancel: Subscriptions are for a pre-paid Subscription Term. YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM FOR A SUBSEQUENT SUBSCRIPTION TERM. YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
a. Notice of Cancellation Required. You agree that we may automatically renew your subscription and charge your account on the last day of your Subscription Term (the “Renewal Date”), unless you cancel your subscription before the Renewal Date. BRANDCAST WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION ON THE RENEWAL DATE UNTIL YOU CANCEL YOUR SUBSCRIPTION OR BRANDCAST NO LONGER OFFERS THE SERVICES.
b. Notice Of Automatic Renewal: You will receive notice by email prior to subscription expiration that your subscription will be renewed for a similar periodic term. The notice will let you know that your current Subscription Term is about to end and the Renewal Date when your subscription will be renewed and your account charged. The notice will provide you with information on how to cancel the automatic renewal. All notices regarding your subscription will be sent to your last email of record. TO CANCEL YOUR SUBSCRIPTION WITHOUT YOUR ACCOUNT BEING CHARGED FOR THE NEXT TERM, YOU MUST DO SO BEFORE THE RENEWAL DATE.
c. Payment And Price: The renewal payment is due on the Renewal Date and will automatically be charged to the authorized payment method that you used for the original subscription or the most recent renewal. THE RENEWAL PRICE WILL BE THE CURRENT RATE THEN IN EFFECT AT THE TIME OF RENEWAL. YOU WILL RECEIVE A NOTICE PRIOR TO RENEWAL OF ANY CHANGES IN SUBSCRIPTION PRICE OR THIS AGREEMENT.
d. How To Cancel Automatic Renewal: IF YOU DO NOT WANT TO RENEW, YOU MUST CANCEL YOUR SUBSCRIPTION BY EMAILING BRANDCAST AT firstname.lastname@example.org.
11. Use Restrictions. Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services. You will not make the Services available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.
12. Back Up Data Responsibility. Brandcast will use good faith efforts to backup data periodically. Backups are intended for internal use to attempt to quickly restore a website; however we cannot guarantee that a backup will be available for restore upon your request. It is your responsibility to backup all Subscriber Content in order to prevent potential data loss.
15. Export Control. Services may be subject to export laws and regulations of the United States and other jurisdictions. Subscriber represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit access or use any Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
16. Objectionable Content. We are not responsible for, and do not endorse, any Content posted on the Platform. We do not have any obligation to prescreen, monitor, edit or remove any Content. We shall not be liable for any damage or harm resulting from any Content or your interactions with other users on the Platform. We reserve the right, but have no obligation, to take any action to restrict or remove access to any Content that we deem, in our sole and absolute discretion, to be a violation of this Agreement.
17. Prohibited Conduct. In your use of the Platform and Services, you may not:
Violate any law, statute, ordinance or regulation;
Infringe upon any patent, copyright, trademark, trade secret, right of publicity or other third party rights;
Attempt to use another user’s account, impersonate another person or entity, misrepresent your affiliation with a person or entity, or create or use a false identity;
Distribute or transmit any code, virus or any other technologies, whether now known or yet to be developed, that may harm the Platform or its users;
Modify, adapt or hack the Platform or modify another Platform or mobile application so as to falsely imply that it is associated with the Platform;
Distribute or post spam, unsolicited or bulk electronic communications to Platform users;
Use any robot, spider, scraper or other automated means to access the Platform for prohibited or illegal purposes;
Take any action that imposes, or may impose, an unreasonable or disproportionately large load on the Platform ’s infrastructure;
Interfere or attempt to interfere with the proper working of the Platform, its services or tools; or
Bypass the Platform ’s robot exclusion headers or other measures we may use to prevent or restrict access to the Platform.
18. Representations and Warranties. By uploading, submitting and integrating the Properties in connection with your use of the Services, you represent and warrant that:
a. Proprietary Rights: You have all right, title, license and authority to upload, submit and integrate the Properties, including the right to publish and distribute by electronic and digital means; and
b. Non-Infringing: The Properties do not (i) violate, infringe or misappropriate on the rights associated with any third parties, including, but not limited to, privacy rights, copyright, trademark, trade secrets, patents or other intellectual property rights of any third party, or (ii) violate any statute, law, ordinance or regulation.
a. Automatic Termination. This Agreement shall automatically terminate upon the bankruptcy or insolvency of either party.
b. Breach. Either party may terminate this Agreement if the other party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
c. Effect of Termination. During the thirty (30) day period following termination or expiration of the Subscription Term, Brandcast will, upon Subscriber Request, grant Subscriber access to the Services for the sole purpose of permitting Subscriber to retrieve Subscriber Content. After expiration of the thirty-day period, Brandcast shall, without liability or obligation of further notice to Subscriber, delete Subscriber’s Account and Subscriber Content.
d. Survival: The following Sections survive termination of this Agreement: Arbitration, Idea Submission License, Content and Trademark License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnity, Limitation of Liability, Release and Governing Law.
20. Customer Questions. Customer questions may be directed by email to email@example.com to address any issues you may have regarding your use of the Platform. Most concerns can be quickly resolved in this matter.
Binding Arbitration. EXCEPT AS OTHERWISE STATED HEREIN, any claim or controversy with Brandcast arising out of or relating to the Platform, Services and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.
The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org. When initiating a request to arbitrate with the AAA, you must also send a copy of the completed form to: firstname.lastname@example.org
Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims courts for disputes or claims within the scope of that court’s jurisdiction.
22. The Platform’s Intellectual Property
a. Copyrights. The Platform’s software, logos, design, text, graphics, and other files, and the selection arrangement and organization thereof, are owned by Brandcast. 2017 Brandcast, Inc. ALL RIGHTS RESERVED.
b. Trademarks: The Platform and its logos, page headers, custom graphics, button icons and scripts are trademarks or trade dress of Brandcast.
c. Ownership and Use: Unless otherwise stated herein, nothing in this Agreement or your use of the Platform and Services gives you a right or license to use any of our copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.
23. DISCLAIMER OF WARRANTIES: TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM, INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BRANDCAST DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, ITS SERVICES OR USE (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, BRANDCAST EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE PLATFORM, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES.
24. LIMITATION OF LIABILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BRANDCAST NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE CONTENT, PLATFORM OR SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE PLATFORM OR ITS SERVICES, EVEN IF BRANDCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRANDCAST’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE PLATFORM OR SERVICES, EXCEED $1000.00 OR THE FEES PAID TO BRANDCAST IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM, WHICHEVER IS GREATER.
25. INDEMNITY. To the maximum extent permitted by law, Subscriber agrees to indemnify, defend and hold harmless Brandcast, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Indemnified Parties arising out of or relating to Subscriber’s (i) use of the Platform, Content and Services (ii) breach of this Agreement, (iii) violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, and/or (iv) a breach of Subscriber’s representations and warranties under this Agreement.
26. RELEASE. With regard to any dispute between Subscriber and any other third party relating to your use of the Services, you hereby release Brandcast, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
27. Force Majeure. Brandcast will not be liable or responsible for any delays in providing the Services, or for failing to provide the Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war or acts of God.
28. No Agency. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
29. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
30. Modifications. Our employees, volunteers or agents are not authorized to vary this Agreement. No modification of this Agreement shall be effective unless it is in writing and either signed by an authorized representative of Brandcast or posted on the Platform.
31. Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The parties consent to the jurisdiction of the State of California, and venue in the County of San Francisco, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof
32. Assignment. You shall not assign any of the rights or obligations under this Agreement without the prior written consent Brandcast, which consent shall not unreasonably be withheld. Brandcast may at any time assign, transfer or subcontract any or all of its rights or obligations under this Agreement without your consent.
33. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
34. No Waiver. No failure or delay by a party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
35. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
36. Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to: Brandcast at 842 Folsom Street, San Francisco, CA 94107 or by email at email@example.com. All notices will be sent to you by email or will be conspicuously posted on the Platform.
37. Entire Agreement. This Agreement comprises the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.
38. Complaints - California Residents. If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
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