THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS UPON WHICH GREAT GIFT IDEAS ETC OFFERS YOU PARTICIPATION WITHIN GREAT GIFT IDEAS ETC'S AFFILIATE PARTNER PROGRAM. BY APPLYING AND PARTICIPATING IN THE AFFILIATE PARTNER PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS HEREIN. ACCEPTANCE OF THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND GREAT GIFT IDEAS ETC THAT YOU WILL USE THE WEBSITE (GREAT-GIFT-IDEAS-ETC.COM), LINKS AND ALL OTHER PROPERTY OF GREAT GIFT IDEAS ETC ONLY IN A MANNER THAT IS CONSISTENT WITH THIS AGREEMENT.
This agreement ("Agreement") is by and between Great Gift Ideas Etc, ("Great Gift Ideas Etc", "we" or "us" and "our" shall be construed accordingly) and you ("Affiliate" or "you" and "your" shall be construed accordingly) (each individually a "Party" and collectively the "Parties") as an online Affiliate in Great Gift Ideas Etc's Affiliate Partner Program
(the "Program") and the establishment of links from your affiliate web site ("your site" or "Affiliate Site') to our web site, Great-Gift-Ideas-Etc.com ("our site" or "Great Gift Ideas Etc").
1. Enrollment in the Affiliate Partner Program
To begin the enrollment process, you shall submit a complete online Affiliate Partner Program Application. The Program is designed for participants aged 18 and above who can form legally binding contracts under applicable law. We will evaluate your application in good faith and will notify you of its acceptance or rejection. If we accept your application, we reserve the right to terminate this Agreement if we ever determine (in our sole discretion) that your site is unsuitable for our Affiliate Partner Program for any reason. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Partner Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable. If we reject your application, you are welcome to reapply to the Program at any time subject to the removal of any content that may have been found objectionable to Great Gift Ideas Etc.
2. Promotion of Our Affiliate Relationship
As an Affiliate, we shall make available to you a variety of graphics and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links shall serve to identify your site as a member of our Affiliate
Partner Program and shall establish a link from your site to ours. As an Affiliate, you are allowed to have one or more of the following types of Links to our site: product links, category links, search box links, affiliate promotion links and a general link to the Great Gift Ideas Etc home page. In utilizing the Links, you agree that you shall abide by all Great Gift Ideas Etc guidelines and policies and cooperate fully with us in order to establish and maintain such Links.
You also agree that you shall display on your site only those graphic or textual images indicating a Link ("Great Gift Ideas Etc Images") that are provided by us, and you shall substitute such Great Gift Ideas Etc Images as directed by us with any Great Gift Ideas Etc images provided by us from time to time throughout the term of this Agreement.
By loading or agreeing to have Great Gift Ideas Etc images loaded onto your site, you agree that you will cooperate fully with us and comply with this Agreement at all times in a manner consistent with our current policies including but not limited to our Content Policy and our policies regarding image resolution and proprietary notices, such as copyright and trademark notifications. The Affiliate Site shall display such Great Gift Ideas Etc Images prominently in relevant sections of its site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site shall in no way alter the look, feel, or functionality of our site.
3. Our Responsibilities
We shall be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We shall be solely responsible for processing every order placed by a customer following a Link from your site to our site, for tracking the volume and amount of sales generated by your site, and for providing information to you regarding sales statistics via our reporting
system as set forth in Section 9. We shall be responsible for order
approval and entry, payment processing, shipping, cancellations, returns, and
all related customer service.
4. Affiliate Responsibilities
A. If you qualify and agree to participate as an Affiliate Site, you shall display Links prominently throughout your site as you see fit and with our consent.
B. You shall be entitled to earn referral fee payments for customer sales
as set forth in Sections 6, 7 and 8 below.
C. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, insert, read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Great Gift Ideas Etc by any other person or entity.
D. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, insert, read, intercept, record, redirect, interpret, append itself to, or otherwise intercept or interfere in any manner with any click-through or other traffic-based transaction that originated from any Great Gift Ideas Etc Affiliate affecting in any manner any compensation or other payment earned by or owing to any such Great Gift Ideas Etc Affiliate.
E. You shall not in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of Great Gift Ideas Etc.
F. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner a World Wide Web user's access, view or usage of, or other aspect of such user's experience at any Affiliate's website in a manner that causes or otherwise results in a different experience from what was otherwise intended by such Affiliate. You shall not take any action that could reasonably cause any confusion to the user as to what website transactions or actions are occurring.
G. You shall not cause the creation or over-writing of any commission tracking cookie on a consumer's computer unless it is the direct result of a click, on a link to the Great Gift Ideas Etc site. You shall not cause the creation of any commission tracking cookie on a consumer's computer through the means of automatically popping up the Great Gift Ideas Etc site, through the use of "I-frames" nor through any other method, other than through a direct consumer-initiated click, on a link to the Great Gift Ideas Etc site.
H. Except for linking as described above, you shall not post or serve any advertisements or promotional content around or in conjunction with the display of Great Gift Ideas Etc (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action.
I. You understand that the use of unsolicited commercial email ("spam") by Great Gift Ideas Etc affiliates is absolutely prohibited. Your participation in the Great Gift Ideas Etc Affiliate
Partner Program constitutes your specific and unconditional agreement to abide by this anti-spam policy. Use of any lists other than opt-in lists originating at your Affiliate
Site or related sites owned by you are not permitted. Also, you must use valid email headers at all times and you agree to comply with all of the requirements of the CAN-SPAM Act of 2003 (the Act) in connection with the distribution of email that contains messaging in any way regarding Great Gift Ideas Etc.
J. You shall not in any other way commit fraud or other illegal
acts in connection with the Affiliate Partner Program.
K. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities listed in Section 4A through 4J, we reserve the right (without limiting any other rights or remedies available to us) to withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement and/or pursue all legal causes of action against you to the fullest extent possible under the law.
5. Relationship
If, at any time, we discover that you are using your affiliate relationship with us for any reason other than as mutually intended under this Agreement, your relationship with us shall be immediately terminated and we reserve the right (without limiting any other rights or remedies available to us) to withhold any referral fees otherwise payable to you under this Agreement and to pursue all legal causes of action against you to the fullest extent possible under the law.
6. Affiliate Referral Fee Payment Determination
Only products that we choose to offer through our website ("Products") that are (a) sold by us, (b) purchased by users linking to our site from your site (as an approved
Affiliate) pursuant to a Link ("Linked Users"), (c) delivered to a customer, and (d) for which we have received full payment shall qualify for a referral fee payment (each, a "Qualifying Purchase"). For each Qualifying Purchase, a
minimum 25% referral fee will be paid on the amount of the order less taxes, duties, shipping, discounts and/or promotions, amounts returned for credit card fraud, bad debts or for returned goods,
charge backs and any royalty paid on Great Gift Ideas Etc
Products. Referral fees will only be paid in US dollars. If a product that generated a referral fee is returned by the customer, we will deduct the corresponding referral fee from your next payment. If there is no subsequent payment due you will be billed for and be required to repay the referral fee. The amount of the Qualifying Purchase(s) minus the applicable deductions referenced in this Section 6 shall be considered as "Net Sales". Affiliate
Partner Program referral fee percentages will be adjusted upward from
the 25% minimum for outstanding Affiliate performance as determined from time to
time in our sole discretion and will always be as displayed in your affiliate account. Sales of Gift Certificates do not earn commissions, however purchases made with gift certificates earn commission based on the basic rates.
7. Sub-Affiliate Referral Fee Payment Determination
Subject to the terms in this Agreement, Great Gift Ideas Etc will also pay you referral fees on sales made by all approved web sites you recruit to Great Gift Ideas Etc 19s Affiliate
Partner Program ("Sub-Affiliates"). You may not sign-up any website owned by yourself or beneficially owned by yourself as a Sub-Affiliate. To be eligible as a Sub-Affiliate, each web site you recruit must submit your Affiliate Referral Number when they submit a complete
online Affiliate
Partner Program application. This reference can be
made automatically using our recruitment banners that contain special
links. Sub-Affiliate status will not be applied to any entity that
has previously referred any clicks or sales to Great Gift Ideas Etc.
You are not limited as to the number of Sub-Affiliates you can have.
We shall pay you a flat referral fee of 10% of the Referral Fees Payments to your
Sub-Affiliates for all completed sales arising out of transactions directly linked from the Sub-Affiliate's site to Great Gift Ideas Etc's site. Great Gift Ideas Etc's payment of these fees is subject to the same exceptions and conditions as fees paid for Affiliate referrals
as set forth in Section 6.
8. Affiliate and Sub-Affiliate Referral Fees Payment
When the total referral fees payment due to you (based on Sections 6 and 7) exceeds $20.00 at the end of any calendar month, you shall be paid by a direct deposit check for the applicable referral fees (less any taxes required to be withheld under applicable law). Such referral fee checks shall be sent
by FusionQuest ("FusionQuest") on the behalf of Great Gift Ideas Etc no later than
thirty (30) days after the end of each calendar month earned and shall
be paid in US dollars only. If we determine, in our sole
discretion, that you have breached this Agreement, we may (without
limiting any other rights or remedies available to us) withhold any
referral fees otherwise payable to you under this Agreement. As a condition to payment of a referral fee, you must provide Great Gift Ideas Etc all information reasonably necessary for Great Gift Ideas Etc to process payments to you in accordance with any and all applicable laws and regulations. This includes, but is not limited to the tax identification number (for businesses located in the US).
9. Reports of Sales
Through the application process, you shall have the opportunity to
register an email address and password and shall have the ability to
enter a password-protected site to receive your sales statistics on a 24
hour a day basis. We will rely on FusionQuest to track sales made
to customers from your Affiliate site. FusionQuest will make
available to you the sales activity and related reports at its www.fusionquest.com
site. You and we each agree to rely on, and not to challenge or
dispute, the sales tracking and other information that FusionQuest
complies in connection with the Affiliate Partner Program, which will bind both you and us for all purposes under this Agreement.
10. Policies and Pricing
Customers who buy products at our site through the Affiliate Partner Program shall be deemed to be customers of Great Gift Ideas Etc. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Great Gift Ideas Etc product sales shall apply to those customers. We may change our policies and operating procedures at any time and from time to time. For example, we, in our sole discretion, shall determine the prices to be charged for Great Gift Ideas Etc products sold under the Affiliate Program in accordance with our own pricing policies.
11. Publicity
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our prior written consent.
12. Licenses and Use of the Great Gift Ideas Etc Logos and Trademarks: Reservation of Rights
A. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE GREAT GIFT IDEAS ETC TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) AS PROVIDED BY GREAT GIFT IDEAS ETC) (COLLECTIVELY, THE "GREAT GIFT IDEAS ETC'S LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF PROMOTING GREAT GIFT IDEAS ETC PRODUCTS ON YOUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE GREAT GIFT IDEAS ETC'S LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS IF YOU ARE A MEMBER IN GOOD STANDING OF OUR AFFILIATE
PARTNER PROGRAM.
B. You shall not make any use of any Licensed Materials for any purpose other than promoting Great Gift Ideas Etc Products on your site. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light.
C. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time ("Affiliate's Licensed Materials"), in Great Gift Ideas Etc's advertising, marketing, promotional and publicity activities; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the effective date of the termination of this Agreement.
D. You may not register the words Great Gift Ideas Etc or variations thereof for use in any search engine, portal, advertising service or similar service, purchase or register search engine keywords, AdWords,
search terms or other identifying terms and domain names that include the phrase
"Great Gift Ideas Etc" or any variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service.
E. The rights granted by Great Gift Ideas Etc herein do not constitute any assignment of ownership or other transfer of ownership interests therein or in any property of Great Gift Ideas Etc, including without limitation, any domain name, website or in any intellectual property of Great Gift Ideas Etc to you. At no time during or after the term of this Agreement shall you challenge or assist others to challenge any Great Gift Ideas Etc trademark, logo, or trade dress or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to any Great Gift Ideas Etc trademark, logo, or trade dress.
F. All licenses, rights and interests in, to and with respect to the Affiliate
Partner Program, the Website, Great Gift Ideas Etc's Licensed Materials,
elements and parts thereof not specifically granted herein to Affiliate (including, without limitation, all rights of copyright) shall be entirely reserved, as between the Parties, to Great Gift Ideas Etc and may be fully utilized by Great Gift Ideas Etc without limitation and without regard to any licenses and rights granted herein. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with your website.
13. Obligations Regarding Your Site
A. You shall be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, (1) the technical operation of your site and all related equipment; (2) creating and posting product descriptions, and references on your site and linking those descriptions to our site; (3) the accuracy and propriety of materials posted on your site; and (4) ensuring that materials posted on your site do not violate or infringe upon, without limitation, the copyrights, trademarks, privacy or other personal or proprietary rights of any third party. Your site shall not (i) violate or infringe upon the rights of any third party, (ii) be libelous, (iii) advocate or promote sexually explicit material, (iv) advocate or promote violence, (v) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or (vi) otherwise be illegal.
B. We disclaim all liability for all development, operational, maintenance and content matters related to your site. Further, you shall indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
14. Term of this Agreement
The term of this Agreement shall begin upon our acceptance of your Affiliate Program application and shall end when terminated by either party. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party notice of termination. You are only eligible to earn referral fee payment(s) on sales occurring during the term, and referral fee payment(s) earned through the date of termination shall remain payable only if the related Great Gift Ideas Etc Product orders are not canceled or returned, provided, however, we may withhold your final payment for a reasonable time to ensure payment of the correct amount.
15. Modification
We may modify any of the terms and conditions contained in this
Agreement at any time at our sole discretion. Terms may be changed
or updated at any time, but you will be able to find the most recent version on our website. Modifications may include, but are not limited to, changes in the scope of available referral fee payment(s) or the payment program in general, payment schedules, payment procedures, and Affiliate
Partner Program rules. If any modification is unacceptable to you, your only recourse is to terminate this
Agreement. Your continued participation in the Affiliate Partner Program following our posting of a change notice or new agreement on our site shall constitute binding acceptance of the change.
16. Relationship of Parties
You and Great Gift Ideas Etc are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You shall have no authority to make or accept any offers or representations on our behalf. You shall not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section
or this Agreement.
17. Disclaimers
WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT
TO THE AFFILIATE PARTNER PROGRAM OR ANY GREAT GIFT IDEAS ETC PRODUCTS
SOLD THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED
WARRANTIES ARISING OUT OF COURSE OR PERFORMANCE, DEALING, OR TRADE
USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR
SITE OR OUR ECOMMERCE SERVERS SHALL BE UNINTERRUPTED OR ERROR FREE, AND
WE SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR
ERRORS.
18. Representations and Warranties
You hereby represent and warrant to us as follows:
A. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
B. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby shall not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
C. You are the sole and exclusive owner of Affiliate's Licensed Materials and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and shall not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
D. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
E. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
19. Confidentiality
During the course of your participation in the Program, you may receive business and financial information relating to Great Gift Ideas Etc or to the Affiliate
Partner Program that is not known to the general public ("Confidential Information"). Confidential Information includes, without limitation, product
data feeds, customer lists, referral fee percentages and pricing and sales information. You agree (a) that all Confidential Information will remain Great Gift Ideas Etc's exclusive property; (b) that you will use Confidential Information only as is reasonably necessary for your participation in the Affiliate Program; and (c) you will not disclose Confidential Information to any individual, company, or other third party.
20. Limitation of Liability
WE SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE
PARTNER PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE
PARTNER PROGRAM SHALL NOT EXCEED THE TOTAL REFERRAL FEE PAYMENT(S) PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
21. Indemnification
You hereby agree to indemnify and hold harmless Great Gift Ideas Etc and related entities and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of Affiliate's Licensed Materials infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,
(ii) any claim the requirements of the CAN-SPAM Act of 2003 (the Act)
have been violated in connection with your distribution of email that
contains messaging in any way regarding Great Gift Ideas Etc, (iii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iv) any claim related to your site, including, without limitation, content therein not attributable to us.
22. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE
PARTNER PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
23. Governing Law
This Agreement shall be governed by the laws of the United States and the State of
Connecticut, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in
Fairfield County, Connecticut, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement shall be binding on, inure to the benefit of, and
be enforceable against the Parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
24. Disclosure for Legal Purposes
You hereby authorize us to disclose information pursuant to judicial and administrative proceedings, and in connection with law enforcement activities and as otherwise may be permitted by law, to law enforcement or government agencies if we believe the disclosure is necessary or appropriate. You also authorize us to disclose information if we believe the disclosure is necessary or appropriate in the event of an investigation of improper or illegal conduct in connection with your activities as an
Affiliate, such as fraud, misrepresentation, intellectual property infringement, or other activity that may put us at risk for liability. We will, whenever we believe reasonably possible, use our reasonable efforts to inform you if such information may be so revealed.
25. Severability
If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.
26. Waiver
Great Gift Ideas Etc's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
27. No Assignments
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent.
28. Survival of Provisions
The provisions of Sections 12, 14, 18, 19, 20, 21, 23, 25 and 28 hereof shall survive termination of this Agreement.
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