A. By accepting a Service Quote by paying the applicable amount to Big Apple Buddy, you (the Customer) enter into an agreement on the terms of this document and the applicable Engagement Confirmation.
B. Pursuant to that agreement, Big Apple Buddy agrees to provide Services to the Customer in consideration for the payment of the Service Fee.
1. Definitions & interpretation
1.1. Defined terms
In this agreement:
Amendment Notice has the meaning given in clause 4.2(a).
Big Apple Buddy means Big Apple Buddy LLC, a New York based limited liability company.
Business Day means a day on which the banks are open for business in New York, NY excluding a Saturday, Sunday or a public holiday.
Cancellation Notice has the meaning given in clause 4.1(a).
Charges means those amounts specified for payment in a Service Quote, other than amounts referable to the Service Fee, including, for the avoidance of doubt, amounts for the purchase of the Good.
Claim means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise.
Confirmation Notice has the meaning given in clause 3(b).
Consequential Loss means any loss of use, loss of goodwill, loss of production, loss of profit or revenue, loss of business opportunity or reputation, loss of data, loss of contract or anticipated saving, any financing costs or increase in operating costs, loss or damage due to business interruption or any other economic, special, indirect or consequential loss, punitive or exemplary damage, howsoever incurred in relation to this agreement (including through negligence) and regardless of whether the loss or damage was reasonably foreseeable.
Customer means a customer that engages Big Apple Buddy to provide Services under this agreement.
Engagement Confirmation means a confirmation by the Customer of engagement of Big Apple Buddy in respect of specific Services as evidenced by both:
(a) a Service Quote; and
(b) payment by the Customer of the Service Fee and Charges applicable to the Services for which the Customer engages Big Apple Buddy as set out in the Service Quote,
and constituting an acceptance by the Customer of the offer constituted by the Service Quote. For the avoidance of doubt, the Customer may engage Big Apple Buddy in respect of some and not all of the Services set out in a Service Quote by paying only that portion of the Service Fee and Charges that is referable to those Services.
Force Majeure means an act of god, lock out or other interference with work, war declared or undeclared, blockage, disturbance, lightning, fire, drought, earthquake, storm, flood, explosion, government or quasi-government restraint, exploration, prohibition, intervention, direction, embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licenses, authorities or allocations, strike or other industrial action or any other cause whether of the kind specifically set out above or otherwise which is not reasonably within the control of the person relying on the force majeure.
Good means the good or goods that is, as set out in the Service Quote, in the case of a Purchasing Service, to be purchased by Big Apple Buddy on behalf of the Customer or, the case of a Return Service, is to be returned or sent for repair by Big Apple Buddy on behalf of the Customer.
Governmental Agency means any governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
Law includes any law, regulation, ordinance, authorisation, ruling, judgement and any other order or decree of any Governmental Agency in any jurisdiction.
Liabilities includes liabilities (whether actual, contingent or prospective), losses, damages, actions, costs, expenses, charges, fees (including legal costs on a full indemnity basis) and outgoings of whatever description.
New Service Quote has the meaning given in clause 4.2(b)(ii)(B).
Non-Completion Notice has the meaning given in clause 5.1.
Personnel means the directors, officers, employees, contractors and agents of Big Apple Buddy from time to time.
Purchasing Service means the service under which Big Apple Buddy:
(a) purchases the Good on behalf of the Customer; and
(b) arranges for delivery of the Good to the address notified by the Customer to Big Apple Buddy.
Rejection Notice has the meaning given in clause 4.3(a).
Return Service means the service under which Big Apple Buddy attends to the return or repair of the Good on behalf of the Customer.
Service Fee means the fee payable in respect of the Services, as set out in the Service Quote. For the avoidance of doubt, the fee in respect of a Purchasing Service will be a fee payable for the performance of shipping and handling services.
Service Quote means a written quotation given by Big Apple Buddy to the Customer by email which:
(a) sets out proposed Services and the Service Fee and Charges applicable to those Services; and
(b) constitutes an offer by Big Apple Buddy to provide each of the Services specified for the applicable Service Fee and Charges.
Services means the services to be provided by Big Apple Buddy to the Customer in accordance with the terms of this agreement, being:
(a) either the Purchasing Service or the Return Service; and
(b) those services set out in the Service Quote in respect of which the applicable Service Fee and Charges have been paid by the Customer to Big Apple Buddy.
Store Invoice means an invoice issued by a store or merchant to Big Apple Buddy or one or more of its affiliates in respect of a Good purchased under a Purchasing Service.
1.2. Interpretation
In this agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to this agreement includes a reference to, as applicable, this document and/or the applicable items evidencing the relevant Engagement Confirmation;
(d) a reference to the terms of an Engagement Confirmation is a reference to the terms contained in one or more of the items evidencing the Engagement Confirmation including, for the avoidance of doubt, the Service Quote;
(e) a reference to an Engagement Confirmation is a reference to the specific Engagement Confirmation that, together with this document, comprises the entire agreement in respect of the subject matter of that Engagement Confirmation, being the provision of Services;
(f) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedules and annexures;
(g) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(h) a reference to US$, $US, dollar or $ is a reference to United States dollars;
(i) a reference to time is to New York, NY time;
(j) a reference to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(k) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(l) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(m) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(n) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
(o) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
2. Engagement
2.1 Engagement Confirmation
(a) In respect of a Customer and a particular Engagement Confirmation, the terms of this agreement, except for this clause 2.1, are:
(i) subject to the provision of the Engagement Confirmation by the Customer to Big Apple Buddy which, for the avoidance of doubt, will be satisfied by the payment of the Service Fee and Charges applicable to some or all of the Services set out in the Service Quote by the Customer to Big Apple Buddy; and
(ii) not effective unless and until the Engagement Confirmation has been provided by the Customer to Big Apple Buddy as contemplated by clause 2.1(a)(i).
(b) This agreement applies as a separate and independent agreement in respect of each Engagement Confirmation and the Services that are the subject of the specific Engagement Confirmation. For the avoidance of doubt, if a particular Customer provides two or more Engagement Confirmations, a separate agreement will be constituted in respect of each specific Engagement Confirmation comprising the terms of that Engagement Confirmation and this document.
2.2. Agreement to engage
The Customer agrees to engage Big Apple Buddy, and Big Apple Buddy accepts that engagement, to provide the Services on the terms set out in this agreement.
2.3. Provision of Services
Big Apple Buddy must provide the Services to the Customer in the manner contemplated by the Engagement Confirmation.
3. Notices and invoicing
As soon as reasonably practicable after receipt of the Service Fee and Charges applicable to the Services, Big Apple Buddy must issue to the Customer:
(a) an invoice to the Customer setting out the Service Fee in respect of the Services to be provided; and
(b) a notice confirming:
(i) receipt of the Service Fee and Charges; and
(ii) that Big Apple Buddy will provide the Services as contemplated by the Engagement Confirmation,
(such notice, a Confirmation Notice).
Notwithstanding any other clause of these terms and conditions, the Customer acknowledges and agrees that Big Apple Buddy is under no obligation to provide copies of Store Invoices.
4. Cancelling or amending an Engagement Confirmation
4.1 Cancellation
(a) The Customer may, at any time, request the cancellation of the Engagement Confirmation by giving notice in writing to Big Apple Buddy (Cancellation Notice).
(b) If a Cancellation Notice is provided before the provision of a Confirmation Notice by Big Apple Buddy to the Customer:
(i) the obligation of Big Apple Buddy to provide the Services in accordance with this agreement will cease to be of effect; and
(ii) Big Apple Buddy must refund all amounts paid by the Customer in relation to the Engagement Confirmation, being the Service Fee and Charges, via PayPal or such other payment method as determined by Big Apple Buddy in its absolute discretion, provided that if Big Apple Buddy will or is likely to incur any Liability including, for the avoidance of doubt, as a result of fees levied by a payment gateway provider or movements in applicable foreign exchange rates, Big Apple Buddy may withhold from the refund, an estimate of the aggregate amount of all such Liabilities (determined by Big Apple Buddy, acting reasonably). Big Apple Buddy must use reasonable endeavours to ensure that any refund under this clause 4.1(b)(ii) is processed within five Business Days of the later of the Customer’s nomination of the payment method or the date of the Cancellation Notice.
(c) If a Cancellation Notice is provided after the provision of a Confirmation Notice by Big Apple Buddy to the Customer:
(i) if the Good may practicably be returned to the vendor of the Good or the purchase order for the Good may practicably be cancelled (each as determined by Big Apple Buddy, acting reasonably):
(A) the obligation of Big Apple Buddy to provide the Services in accordance with this agreement will cease to be of effect; and
(B) Big Apple Buddy must refund all amounts paid by the Customer in relation to the Engagement Confirmation, being the Service Fee and Charges, through a payment method nominated by the Customer in accordance with clause 11.5 less:
(I) an amount equal to 100% of the Service Fee applicable to the Engagement Confirmation;
(II) if the nominated payment method will or is likely to result in Big Apple Buddy incurring any Liability including, for the avoidance of doubt, as a result of fees levied by a payment gateway provider or movements in applicable foreign exchange rates, an estimate of the aggregate amount of all such Liabilities (determined by Big Apple Buddy, acting reasonably); and
(III) if the cancellation of the purchase order for the Good, or the return of the Good, will or is likely to result in Big Apple Buddy incurring any Liability, an estimate of the aggregate amount of all such Liabilities (determined by Big Apple Buddy, acting reasonably).
Big Apple Buddy must use reasonable endeavours to ensure that any refund under this clause 4.1(c)(i)(B) is processed within five Business Days of the later of the Customer’s nomination of the payment method, the date of the Cancellation Notice and the date on which the cancellation of the purchase order and/or the refund of monies (as applicable) is completed by the vendor of the Good; and
(ii) in any other case, the Cancellation Notice is of no effect and this agreement continues in full force and effect and, for the avoidance of doubt, Big Apple Buddy must provide the Services as contemplated by this agreement.
4.2. Amendment
(a) The Customer may, at any time, request the amendment of the Services that are the subject of the Engagement Confirmation, including the alteration of the Good or the specification or quantity of the Good, by giving notice in writing to Big Apple Buddy (Amendment Notice).
(b) If an Amendment Notice is provided before the provision of a Confirmation Notice by Big Apple Buddy to the Customer:
(i) if the requested amendment results in Services for which the applicable Service Fee and Charges, each as determined by Big Apple Buddy in its absolute discretion and notified in writing to the Customer, are the same as or less than the Service Fee and Charges applicable to the Services prior to the amendment, the parties agree that:
(A) the Engagement Confirmation will be amended as contemplated by the Amendment Notice with immediate effect; and
(B) if applicable, Big Apple Buddy must refund to the Customer the amount by which the sum of the Service Fee and Charges paid by the Customer to Big Apple Buddy exceeds the sum of such amounts required to be paid by the Customer to Big Apple Buddy under the amended Engagement Confirmation (if any) through a payment method nominated by the Customer in accordance with clause 11.5, provided that if the nominated payment method will or is likely to result in Big Apple Buddy incurring any Liability including, for the avoidance of doubt, as a result of fees levied by a payment gateway provider or movements in applicable foreign exchange rates, Big Apple Buddy may withhold from the refund, an estimate of the aggregate amount of all such Liabilities (determined by Big Apple Buddy, acting reasonably). Big Apple Buddy must use reasonable endeavours to ensure that any refund under this clause 4.2(b)(i)(B) is processed within five Business Days of the later of the Customer’s nomination of the payment method and the date on which Big Apple Buddy notifies the Customer of the new Service Fee and Charges; and
(ii) in any other case:
(A) the obligation of Big Apple Buddy to provide the Services and the right of Big Apple Buddy to provide a Confirmation Notice in respect of the Engagement are each suspended; and
(B) Big Apple Buddy must, as soon as reasonably practicable, provide to the Customer a Service Quote in respect of the Services (as amended) (New Service Quote), following which, if the Customer pays the amount by which the Service Fee and Charges under the New Service Quote exceeds the sum of the Service Fee and Charges paid by the Customer to Big Apple Buddy under the Engagement Confirmation prior to its amendment, a new Engagement Confirmation will be deemed to have been constituted on the terms of the New Service Quote and amended Services. For the avoidance of doubt, the Customer may, in response to a New Service Quote, provide a Cancellation Notice in which case clause 4.1(b) applies to that Cancellation Notice as if the Cancellation Notice were provided before the provision of a Confirmation Notice.
(c) If an Amendment Notice is provided after the provision of a Confirmation Notice by Big Apple Buddy to the Customer, the Amendment Notice is deemed to be a Cancellation Notice and, for the avoidance of doubt, the terms of clause 4.1 will apply to that deemed Cancellation Notice.
4.3. Rejection
(a) Big Apple Buddy may, at any time and at its absolute discretion, reject an Engagement Confirmation by giving notice in writing to the Customer (Rejection Notice).
(b) If Big Apple Buddy gives a Rejection Notice under clause 4.3(a):
(i) this agreement is terminated in respect of the Engagement Confirmation; and
(ii) Big Apple Buddy must refund all amounts paid by the Customer in relation to the Engagement Confirmation, being the Service Fee and Charges, through a payment method nominated by the Customer in accordance with clause 11.5, provided that if the nominated payment method will or is likely to result in Big Apple Buddy incurring any Liability including, for the avoidance of doubt, as a result of fees levied by a payment gateway provider or movements in applicable foreign exchange rates, Big Apple Buddy may withhold from the refund, an estimate of the aggregate amount of all such Liabilities (determined by Big Apple Buddy, acting reasonably). Big Apple Buddy must use reasonable endeavours to ensure that any refund under this clause 4.3(b)(ii) is processed within five Business Days of the later of the Customer’s nomination of the payment method or the date of the Rejection Notice.
5. Incomplete Purchasing Service
5.1. Provision of Non-Completion Notice
Without limiting clause 4.3, if, at any time, Big Apple Buddy determines, acting reasonably, that the Purchasing Service comprising the Services cannot practicably be performed as set out in the Service Quote (for example, because one or more of the Goods are no longer available for purchase), Big Apple Buddy must give written notice to the Customer (Non-Completion Notice).
5.2. Effect of Non-Completion Notice
(a) If a Non-Completion Notice is given either:
(i) prior to Big Apple Buddy commencing the provision of the Purchasing Service; or
(ii) after Big Apple Buddy commences the provision of the Purchasing Service and the determination of Big Apple Buddy that is the subject of the Non-Completion Notice is that no aspect of the Purchasing Service can be practicably performed,
the Customer may, at its election:
(iii) provide a Cancellation Notice, which notice is deemed for the purposes of clause 4.1 to be a notice given before the provision of a Confirmation Notice by Big Apple Buddy; or
(iv) provide an Amendment Notice, which notice is deemed for the purposes of clause 4.2 to be a notice given before the provision of a Confirmation Notice by Big Apple Buddy.
(b) If a Non-Completion Notice is given after Big Apple Buddy commences the provision of the Purchasing Service and the determination of Big Apple Buddy that is the subject of the Non-Completion Notice is that one or more aspects of the Purchasing Service may practicably be performed, the Customer will be deemed to have provided an Amendment Notice on receipt of the Non-Completion Notice requesting that the Services be amended to only include those aspects that are capable of being practicably performed. An Amendment Notice deemed to be given under this clause 5.2(b) is deemed for the purposes of clause 4.2 to be an Amendment Notice given before the provision of a Confirmation Notice by Big Apple Buddy.
6. Return Service for non-defective Good
In respect of a Return Service, if, after the provision of a Confirmation Notice by Big Apple Buddy to the Customer, Big Apple Buddy suffers or incurs, or is likely to suffer or incur, any Liability in providing the Services other than those relating to shipping and handling as specified in the Service Quote, Big Apple Buddy may by notice in writing to the Customer, suspend provision of the Services until the Customer pays to Big Apple Buddy an applicable additional amount referable to those Liabilities.
7. Liability
7.1. Disclaimer
(a) Except for a Liability resulting from a breach of this agreement and except to the extent that any Law would cause this clause 7 or any part of it to be or become void or voidable, subject to clause 7.3, Big Apple Buddy is not liable to the Customer in relation to any Claim or any Liability resulting from Big Apple Buddy’s performance of the Services including, for the avoidance of doubt, any Liability in relation to the Good or arising from damage to the Good.
(b) Big Apple Buddy excludes all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any Law or cause any part of this clause 7 to be void.
(c) Big Apple Buddy will not, in any circumstance, be liable to the Customer for any Liability suffered or incurred by the Customer resulting from:
(i) a rejection of an Engagement Confirmation in accordance with clause 4.3;
(ii) a delay in the provision of the Services or the processing of any refund including under clause 4;
(iii) a delay in the delivery of the Good, whether under a Purchasing Service or a Return Service; or
(iv) the use of Big Apple Buddy’s website, any website linked to Big Apple Buddy’s website or any electronic form of communication involving Big Apple Buddy or any of its Personnel including through Facebook, Twitter, LinkedIn, Google+, Instagram or Pinterest.
7.2. Acknowledgements and warranties
(a) The Customer acknowledges and agrees that:
(i) the Services described in this agreement are provided by Big Apple Buddy to the Customer on an 'as is' and 'as available' basis, and Big Apple Buddy make no representations, warranties or guarantees, other than as expressly set out in this agreement;
(ii) Big Apple Buddy makes no representations, warranties or guarantees in relation to:
(I) the availability, continuity, reliability, performance, accuracy, currency or security of the Services described in this agreement; or
(II) the compliance of any Good with regulatory or other requirements including under any Law of any country to which a Good is to be delivered under a Purchasing Service;
(iii) all deliveries of Goods to the Customer under any Services are made by Big Apple Buddy through third party service providers and Big Apple Buddy makes no representation, warranty or guarantee in relation to, and has no Liability to the Customer for, the timeliness of any delivery;
(iv) in respect of a Purchasing Service, Big Apple Buddy:
(A) is not acting as a seller of the Good but purchases the Good on behalf of the Customer; and
(B) makes no representation, warranty or guarantee in relation to the Good;
(v) in respect of a Return Service, Big Apple Buddy:
(A) acts as agent for the Customer in relation to the return or repair of a Good; and
(B) makes no representation, warranty or guarantee in relation to the Good including in respect of the performance or condition of the good at any time including, for the avoidance of doubt, after delivery of the Good to the Customer;
(vi) all risk of loss in respect of a Good passes to the Customer following the delivery of the Good by Big Apple Buddy to the applicable delivery, shipment or logistics carrier; and
(vii) Big Apple Buddy is not liable to the Customer in respect of any information contained on its website or in any communications between the Customer and Big Apple Buddy or any of its Personnel whether in physical or electronic form including, for the avoidance of doubt, through Facebook, Twitter, LinkedIn, Google+, Instagram or Pinterest.
(b) The Customer warrants to Big Apple Buddy that:
(i) the Customer has not breached any Law in engaging Big Apple Buddy to provide any or all of the Services; and
(ii) in the case of a Purchasing Service, it has undertaken such enquiries as are reasonably necessary to ensure that the Good is fit for purpose and capable of delivery to the address nominated by it including on account of sufficient, appropriate and safe access and such delivery will not contravene any Law of the country to which the Good is to be delivered.
7.3. Scope of disclaimer
(a) All the exclusions and limitations of Big Apple Buddy’s Liability in this clause 7 apply in respect of any Liability that is suffered or incurred in any way by the Customer and that results from, directly or indirectly, Big Apple Buddy’s performance of this agreement (including negligence).
(b) All provisions in this clause 7 are separate and independent and do not limit each other and the defences and limitations are intended to provide Big Apple Buddy with absolute bars and complete defences to any Claims that the Customer may have or make.
7.4. Consequential Loss
Notwithstanding any other provision of this agreement, Big Apple Buddy will not, in any circumstances, be liable to the Customer for:
(a) anything other than provable and direct losses arising from a breach of this agreement; or
(b) any Consequential Loss in relation to this agreement.
7.5. Proportional reduction
Big Apple Buddy’s Liability in respect of any Claim brought against it by the Customer is reduced proportionally to the extent that any breach of this agreement by, or act or omission of, the Customer, or, as applicable, its agents, representatives or nominees, caused or contributed to any such Claim or Liability.
7.6. Limited liability
Despite any other provision of this agreement, the maximum aggregate liability of Big Apple Buddy to the Customer in relation to:
(a) any breach of this agreement; or
(b) any negligent act or omission in relation to the Services, including any negligent act or omission of any Personnel,
is limited to, in respect of the relevant Good, the lesser of:
(c) the amount of the cost of replacing the Good or of acquiring equivalent goods; and
(d) the amount of the cost of having the Good repaired.
8. Termination
8.1. Termination
This agreement terminates:
(a) automatically following completion of the Services by Big Apple Buddy; or
(b) on cancellation of an Engagement Confirmation in accordance with the terms of this agreement.
8.2. Accrued rights
Termination of this agreement does not affect any accrued rights or remedies of either party (if any).
9. Force Majeure
(a) Subject to clause 9(b), where Force Majeure prevents or delays either party from performing any obligation under this agreement, that obligation is suspended as long as the Force Majeure subsists.
(b) For the avoidance of doubt, a party's failure to observe or comply with the terms of this agreement will not give rise to any Liability to the other party to the extent that the failure to observe or comply with those terms is attributable to Force Majeure.
(c) If any Force Majeure continues for a period of three months or more, either party may terminate this agreement immediately by giving written notice to the other party (without affecting the accrued rights and obligations of the parties as at the Termination Date). In this case, a Cancellation Notice is deemed to have been provided before the provision of a Confirmation Notice by Big Apple Buddy for the purposes of clause 4.1.
10. Notices and other communications
10.1. Service of notices
A notice, demand, consent, approval, invoice or communication under this agreement (Notice) must be sent by email to the recipient's email address.
10.2. Effective on receipt
A Notice given in accordance with clause 10.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received when sent by the sender unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
11. General
11.1. Assignment
A party may only assign this agreement, or a right under this agreement, with the prior written consent of the other party.
11.2. Entire agreement
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements, deeds or understandings between the parties in connection with its subject matter including anything contained in any communications between the Customer and Big Apple Buddy or any of its Personnel.
11.3. Severability
A term or part of a term of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of this agreement continue in full force.
11.4. Relationship
The parties agree and acknowledge that Big Apple Buddy provides the Services as an independent contractor. Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties to this agreement.
11.5. Payment methods
If any party is entitled or required to nominate a payment method in respect of any payment, such nominated payment method must be one of the following:
(a) electronic funds transfer to an account nominated by the applicable party; or
(b) PayPal.
11.6. Governing law and jurisdiction
This agreement is governed by, and to be interpreted in accordance with, the laws of the State of New York, without giving effect to conflict of laws principles, and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of the State of New York.
11.7. Further assurances
Each party must promptly do every reasonable thing to complete its obligations under, and to further the intent of, this agreement.
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