Terms & Conditions.
- 2. The contract
- 3. Delivery of goods
- 4. Manufacturer's guarantee of goods
- 5. Motionspot's warranty of goods
- 6. Title and risk
- 7.Supply of services
1.1 Definitions. In these Conditions, the following definitions apply:
A day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Has the meaning set out in condition 2.3. Conditions: these terms and conditions as amended from time to time in accordance with condition 14.8.
The contract between Motionspot and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
The contract between Motionspot and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
The person or firm who purchases the Goods and/or Services from Motionspot.
A Customer who is a natural person acting for domestic and private purposes and not in the course of business.
A Customer acting in the course of business. Goods: the goods (or any part of them) set out in the Order.
Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
The Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s quote and order confirmation form overleaf.
The services supplied by Motionspot to the Customer as set out in the Order.
Motionspot Limited of Unit 48. Pall Mall Deposit, 124-128 Barlby Road, London, W10 6BL registered in England and Wales with company number 08106108.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and unless otherwise stated e-mails.
2. The Contract
2.1 All of these Conditions shall apply to the Contract between Motionspot and the Customer for the supply of Goods and/or Services. A Customer should read these Conditions carefully and check that the details of the Order are complete and accurate before submitting the Order.
2.2 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when Motionspot issues written acceptance of the Order in the form of an invoice for part payment at which point and on which date the Contract shall come into existence (Commencement Date).
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Motionspot which is not set out in the Contract.
2.5 Although Motionspot has made every effort to be as accurate as possible any samples, drawings, descriptive matter issued by Motionspot and any comment on the suitability of the Goods and any descriptions of the Goods or illustrations or descriptions of the Services contained in Motionspot’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate and illustrative idea of the Services and/or Goods described. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 Any quotation given by Motionspot shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
2.8 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.9 Motionspot may revise the terms and conditions set out in this document if there are changes in relevant laws and regulatory requirements and reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3. Delivery of Goods
3.1 If Motionspot is not providing Services which include the installation of the Goods on behalf of a Customer then it shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Motionspot notifies the Customer that the Goods are ready.
3.2Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3.3 Motionspot shall not be responsible for damage to the Goods or missing components unless the Customer shall have notified Motionspot in writing of such damage or missing components within 48 hours of the Goods’ arrival at the Delivery Location.
3.4 The price for all costs and charges of packaging, insurance and transport of the Goods shall be included except where it is expressly set out in the Order and shall be paid by the Customer when it pays for the Goods.
3.5 Motionspot shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Motionspot with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.6 If Motionspot fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Motionspot shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide Motionspot with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4. Manufacturer's guarantee of Goods
4.1 The Goods come with a manufacturer’s guarantee. For details, please refer to the manufacturer’s guarantee summary provided by Motionspot on completion of the project.
4.2 The Manufacturer’s guarantee is in addition to a Customer’s legal rights in the relation to the Goods.
5. Motionspot's warranty of Goods
5.1 Motionspot warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
5.2 Subject to condition 5.3, if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in condition 5.1;
(b) Motionspot is given a reasonable opportunity of examining such Goods; and/p>
(c) the Customer (if asked to do so by Motionspot) returns such Goods to Motionspot’s place of business at the Customer’s cost, Motionspot shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods.
5.3 Motionspot shall not be liable for the Goods’ failure to comply with the warranty in condition 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with condition 5.2;
(b) the defect arises because the Customer failed to follow Motionspot’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the Customer alters or repairs such Goods without the written consent of Motionspot;
(d) the defect arises as a result of fair wear and tear, wilful damage, accident, abnormal working conditions or negligence by the Customer or any third party;
(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery or, if applicable, installation of the Goods by Motionspot.
6.2 Title to the Goods shall not pass to the Customer until Motionspot has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that Motionspot has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as Motionspot’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Motionspot’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Motionspot’s behalf from the date of delivery;
(e) notify Motionspot immediately if it becomes subject to any of the events listed in condition 12.5(b) to condition 12.5(m); and
(f) give Motionspot such information relating to the Goods as Motionspot may require from time to time,but a Business Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to a Business Customer the Business Customer becomes subject to any of the events listed in condition 12.5(b) to condition 12.5(m), or Motionspot reasonably believes that any such event is about to happen and notifies the Business Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Motionspot may have, Motionspot may at any time require the Business Customer to deliver up the Goods and, if the Business Customer fails to do so promptly, enter any premises of the Business Customer or of any third party where the Goods are stored in order to recover them.
7. Supply of Services
7.1 Motionspot shall provide the Services to the Customer in accordance with the Order.
7.2 Motionspot shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 Motionspot shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Motionspot shall notify the Customer in any such event.
7.4 Motionspot may suspend the supply of Services if it is necessary to deal with a technical problem or to make improvements agreed in writing between Motionspot and the Customer. Motionspot will give notice to the Customer of any necessary suspension unless such suspension is a matter of urgency or an emergency.
7.5 Motionspot warrants to the Customer that the Services will be provided using reasonable care and skill.
8. Customer's obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with Motionspot in all matters relating to the Services;
(c) provide Motionspot with access to the Customer’s property, premises, office accommodation and other facilities as reasonably required by Motionspot to provide the Services;
(d) provide Motionspot with such information and materials as they may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start,
(g) keep and maintain all materials, equipment, documents and other property of Motionspot (Motionspot Materials) at the Customer’s premises in safe custody at its own risk, maintain the Motionspot Materials in good condition until returned to Motionspot, and not dispose of or use the Motionspot Materials other than in accordance with Motionspot’s written instructions or authorisation;
(h) in the unlikely event of a defect with the Services contact Motionspot as soon as reasonably possible and provide Motionspot a reasonable opportunity to repair or fix any defect; and
8.2 If Motionspot’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) Motionspot shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Motionspot’s performance of any of its obligations;
(b) Motionspot shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Motionspot’s failure or delay to perform any of its obligations as set out in this condition 8.2; and,
(c) the Customer shall reimburse Motionspot on written demand for any costs or losses sustained or incurred by Motionspot arising directly or indirectly from the Customer Default.
9. Price and Payment
9.1 The price for Goods and the charges for Services shall be set out in the Order.
9.2 Motionspot shall invoice the Customer in accordance with the payment terms set out in the Order (Payment Terms) and the Customer shall pay each invoice submitted by Motionspot in accordance with those Payment Terms. Time for payment shall be of the essence of the Contract.
9.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) unless otherwise stated. Where any taxable supply for VAT purposes is made under the Contract by Motionspot to the Customer, the Customer shall, on +receipt of a valid VAT invoice from Motionspot, pay to Motionspot such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.4 If the Customer fails to make any payment due to Motionspot under the Contract in accordance with the Payment Terms, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Natwest Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.5 A Business Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Motionspot may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Motionspot to the Customer.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Motionspot.
10.2 The Customer acknowledges that, in respect of any third-party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on Motionspot obtaining a written licence from the relevant licensor on such terms as will entitle Motionspot to license such rights to the Customer.
10.3 All Motionspot materials are the exclusive property of Motionspot.
11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude Motionspot’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
11.2 Subject to condition:
(a) Motionspot shall under no circumstances whatever be liable to any Business Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or loss of business or any indirect or consequential loss arising under or in connection with the Contract;
(b) Motionspot shall under no circumstances be liable to any Consumer Customer for any commercial, business or re-sale purposes and accept no liability for loss of profit, loss of business, business interruption or loss of business opportunity;
(c) Motionspot shall under no circumstances whatever be liable to any Customer for repairing any pre-existing faults, defects or damage to the Customer’s property or premises discovered in the course of the supply of Services;
(d) Motionspot’s total liability to a Business Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods and/or Services; and
(e) Motionspot’s total liability to a Consumer Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to [two times the price of the Goods and/or Services].
11.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract with any Business Customer.
11.4 This condition 11 shall survive termination of the Contract.
12.1 A Customer may cancel an Order for Goods and/or Services:
(a) within 7 calendar days’ of placing an Order by contacting Motionspot and cancelling the Order.
(b) Subject to condition 12.1(c) and 12.1(d) below if a Customer cancels an Order under condition 12.1(a) Motionspot will refund any payment made in advance for Services that have not been provided or Goods that have not been delivered.
(c) If a Customer cancels an Order under condition 12.1(a) and Motionspot have already started work on the Order by that time, the Customer will pay Motionspot any costs reasonably incurred in starting to fulfil the Order and this charge will be deducted from any refund that is due to the Customer. Where a Customer has cancelled an Order because of a failure by Motionspot to comply with these Conditions (except where Motionspot have been affected by a Force Majeure Event) the Customer will not have to make any payment to Motionspot.
(d) If Motionspot have dispatched Goods to the Customer then the Customer will be unable to cancel an Order under condition 12.1(a) until the Goods are returned to Motionspot at the cost of the Customer.
12.2 A Customer is not entitled to cancel an Order if Goods are made-to-measure or bespoke to a Customer (but this will not affect legal rights as a consumer in relation to made-to-measure or bespoke Goods that are faulty).
12.3 Motionspot may cancel an Order for Goods and/or Services before the Services start or the Goods are delivered:
(a) due to a Force Majeure Event or the unavailability of stock or (in the case of Services) key personnel or key materials without which Motionspot cannot provide the Services. Motionspot will promptly contact the Customer if this happens.
(b) If Motionspot cancel an Order under condition 12.3(a) and the Customer has made payment in advance for Services that have not been provided or Goods that have not been delivered, Motionspot will refund these amounts to the Customer.
12.4 Without limiting its other rights or remedies, Motionspot may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment in accordance with the Payment Terms.
12.5 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.5(b) to condition 12.5(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party’s financial position deteriorates to such an extent that in Motionspot’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.6 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Motionspot all of Motionspot’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Motionspot shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return at the cost of the Customer all of the Motionspot Materials and any other items which have not been fully paid for. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract. If the Business Customer fails to do so, then Motionspot may enter the Business Customer’s premises and take possession of them;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) conditions which expressly or by implication have effect after termination shall continue in full force and effect.
13. Force majeure
13.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Motionspot including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Motionspot 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.
13.2 Motionspot shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.3 If the Force Majeure Event prevents Motionspot from providing any of the Services and/or Goods for more than six weeks, Motionspot shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.1 Complaints. If a Customer has any questions or complaints they should contact Motionspot, by telephoning or e-mailing the Motionspot customer service team at email@example.com or 020 3735 5139.
14.2 Assignment and other dealings.
(a) Motionspot may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of Motionspot, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other commercial case) or home address (if it is an individual) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 14.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.5 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
14.7 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.8 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing (excluding e-mail) and signed by Motionspot.
14.9 Governing law. This 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 England and Wales.
14.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non- contractual disputes or claims).14.11 Personal Information. Motionspot will use the personal information a Customer provides to provide the Goods and/or Services and process payment for such Goods and/or Services and to inform Customers about similar products or services that Motionspot provide, but a Customer may stop this by contacting Motionspot. Motionspot will not, except to its agents, consultants and subcontractors for the purposes of providing the Goods and/or Services, give personal data to any other third party.
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