TERM & CONDITIONS

GENERAL TERMS AND CONDITIONS OF SALE

1. TERMS AND CONDITIONS GOVERN

The following General Terms and Conditions of Sale (“Terms”) shall apply to and govern all transactions and purchases of products between DEPLOY50 LLC (“DEPLOY50”) and DEPLOY50’s client (“Client”). Except as otherwise excluded by agreement in writing signed by DEPLOY50 and Client (i) these Terms shall apply to and are incorporated into all agreements, whether written, oral or implied, with respect to the purchase of any products (“Products”) from DEPLOY50 by Client including pursuant to any quote, proposal, purchase order, invoice or any other document related to the Products provided by DEPLOY50 to Client, and into all “Orders” (as defined below), (ii) in the event Client has submitted an order or other Client document with conflicting terms and conditions applicable to Products, these Terms shall control, and (iii) Client’s acceptance of the Products shall reflect Client’s assent to DEPLOY50’s Terms as set forth herein.

2. ORDERS:

The specifics of any and all agreements between DEPLOY50 and the Client will be set forth in an “Order.” Client shall order Products through an Order which will include descriptions of Products, fee and quantity, and other specific terms between the parties. DEPLOY50 shall not be bound and no such writing will constitute an Order unless and until such writing is accepted by DEPLOY50 upon DEPLOY50’s execution of the Order at DEPLOY50 headquarters by its President or his designee (when so accepted, an “Order”). Each Order is a separate and independent agreement between Client and DEPLOY50 unless an Order expressly incorporates all or part of another Order. Client agrees and acknowledges that these Terms are incorporated into each Order. DEPLOY50’s acceptance of any writing from Client is made conditional on Client’s assent to these Terms and these Terms shall govern over any Client’s conflicting terms and conditions set forth in a writing of Client.

3. CHANGES TO SCOPE OF ORDER:

Client may request changes to the Orders by submitting a request in writing to DEPLOY50. No change shall be effective until accepted by DEPLOY50 by its execution of an amended Order. Client agrees and acknowledges that changes accepted by DEPLOY50 may result in a change in schedule, date of delivery of the Products, pricing, or all of the foregoing.

4. CLIENT REPRESENTATIONS AND WARRANTIES:

Client represents and warrants that:

It is authorized to enter into these Terms and any applicable Order.
All information it has or will provide to DEPLOY50 is complete and accurate.
Its use of the Products provided hereunder does not violate any applicable law or regulation.
It will reasonably cooperate with DEPLOY50 to enable DEPLOY50 to provide the Products.
It has all necessary licenses, leases or rights to use the Products.
It shall abide by all agreements between Client and a third party provider (each, a “Solution Provider”) related to the Products. Client acknowledges that DEPLOY50 is not responsible for services or products provided by Solution Providers or covered by third party agreements between Client and the Solution Provider.

5. PAYMENT AND PRICING:

The total pricing charged and invoiced by DEPLOY50 to the Client shall include the price for the Products as set forth in the specific Order, any applicable transportation, freight and related service charges, and all Taxes (as defined hereinbelow)(collectively, “Purchase Price”). The Purchase Price shall be payable by Client upon the due date set forth in the Order and/or in any invoice issued pursuant to the Order. In addition, in its sole discretion, DEPLOY50 may require, as a condition of the Order and shipment and Delivery of the Product, the Client to pay DEPLOY50 a deposit up to and including the Purchase Price. Payments received by DEPLOY50 from the Client shall be applied, at DEPLOY50’s sole discretion, including to any invoice or line item of any invoice, Late Fee (as defined below), other charges provided hereunder, or as otherwise designated by DEPLOY50. Client shall pay the Purchase Price on or before the specified due date, and shall be deemed delinquent unless it includes all amounts due including interest and the Late Fee as provided below. Time is of the essence with respect to all payments due under an Order or invoice. If Client disputes any fees or charges, Client must notify DEPLOY50 in writing of the dispute within ten (10) days of the date of the affected invoice. If Client fails to do so, Client waives any such dispute regarding the invoice. DEPLOY50 may accept credit card payments. In the event Client pays the Purchase Price with a credit card after the Order has been shipped, Client will be charged and shall pay an additional 3% of the Purchase Price.

6. SUSPENSION OF DELIVERIES:

LATE FEES; TAXES. In the event Client fails to pay any invoice within ten (10) days of its due date, DEPLOY50 may, without liability of DEPLOY50 to Client and without waiving any other rights or remedies available to DEPLOY50 hereunder or at law or in equity, cease further deliveries of Products on the Order or any other Order by Client. Additionally, if Client fails to make any payment in full on or before its due date, Client shall pay interest on the part of the payment that is late in the amount of 1.5% per month or any part of a month, or the maximum interest rate allowed by law, whichever is less, from the due date to the date paid (“Late Fee”). The Late Fee is without waiver of any of DEPLOY50’s rights and remedies due to a default as set forth in these Terms or any applicable Order or of DEPLOY50’s right to suspend delivery of Products. Client is responsible for and shall pay all taxes and fees associated with the purchase and sale of the Products and materials provided hereunder or otherwise arising from these Terms or any applicable Order, including without limitation, sales, use, personal property, excise and value added taxes including all fines, interest or penalties assessed by federal, state, and/or local authorities (“Taxes”). Such Taxes will be added to each invoice provided to the Client and Client agrees to promptly pay any and all Taxes whether included in the original invoice or invoiced at a later time. In addition, Client authorizes DEPLOY50 to pay any Taxes when and as they become due, and Client agrees to reimburse DEPLOY50 promptly and on demand for the full payment for such Taxes.

7. TRANSFER OF TITLE, TRANSPORTATION, DELIVERY AND RISK OF LOSS:

Transfer of title of Products occurs upon delivery of the Products to Client, and delivery of Products to Client shall be deemed to have occurred when Products are placed for shipment at DEPLOY50’s facility or that of its Solution Provider (collectively, “Delivery”). All transportation and freight charges shall be F.O.B. DEPLOY50’s facility or that of its Solution Provider. Client is responsible for payment of all transportation, freight and related service charges which may be included on Client’s invoice. DEPLOY50 DOES NOT CARRY INSURANCE ON THE PRODUCTS AND CLIENT SHALL BEAR THE RISK OF LOSS AFTER THE PRODUCTS LEAVE DEPLOY50’S FACILITY OR THAT OF ITS SOLUTION PROVIDER. DEPLOY50 IS NOT RESPONSIBLE FOR PRODUCTS DAMAGED, STOLEN OR LOST IN TRANSPORTATION.

8. LIMITED WARRANTY:

DEPLOY50 warrants that the Products will conform with the description and quantity set forth in the Order. With respect to any other warranty issue relating to any Product provided hereunder, the manufacturer may provide and DEPLOY50 shall assign any warranty offered by the manufacturer with respect to the Product to the extent such warranty is assignable or transferable to Client. Client’s recourse shall be solely against the manufacturer with respect any such warranty concerning the Products which is assignable, and not against DEPLOY50. Any misuse, abuse, unauthorized repair, or unauthorized disassembly of the Products, or failure to use the Products in accordance with the manufacturer’s instructions (collectively, “Misuse”) may void any manufacturer’s warranty. Client shall notify DEPLOY50 in writing of any breach by DEPLOY50 of its limited warranty with respect to the Products within ten (10) days of Delivery of the non-conforming Products, shall label such notice as notice of a breach of warranty, and shall specify with reasonable detail the Products which are non-conforming and identify how, when and why such Products are non-conforming (“Warranty Notice”). In addition to the Warranty Notice, Client shall return the non-conforming Products in compliance with DEPLOY50’s return policy, including without limitation, returning the non-conforming Products unopened and undamaged within such ten (10) day period from Delivery (See Paragraph 15 of these Terms). Along with such Warranty Notice, Client shall provide DEPLOY50 with all documentation reasonably related to and supporting its claim that DEPLOY50 breached its limited warranty hereunder or which is requested by DEPLOY50. After the aforementioned ten (10) day period, the aforesaid limited warranty shall expire. In the event of a timely Warranty Notice by Client, the terms of Paragraph 10 shall provide the sole remedy to Client for such breach.

DISCLAIMER OF ALL OTHER WARRANTIES BY DEPLOY50. EXCEPT FOR THE LIMITED WARRANTY FOR PRODUCTS SET FORTH ABOVE, DEPLOY50 MAKES NO WARRANTY AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY APPLICABLE LAW OR OTHERWISE, REPRESENTATIONS, AND CONDITIONS OF ANY KIND OR NATURE WITH RESPECT TO ALL PRODUCTS, EQUIPMENT, DEVICES, SOFTWARE, ENVIRONMENT, OR ANY OTHER PRODUCT PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, THAT ANY EQUIPMENT, PRODUCT, DEVICE, OR SOFTWARE WILL ACHIEVE SPECIFIC RESULTS OR WILL MEET CLIENT’S NEEDS OR REQUIREMENTS, AND WARRANTIES OF RESULTS, PERFORMANCE, UPTIME, ACCURACY OF INFORMATION, SYSTEM INTEGRATION, SCALABILITY, PERFORMANCE WITH ANY PARTICULAR COMPUTER SOFTWARE, HARDWARE OR SYSTEM, AND THAT THE PRODUCTS WILL BE “ERROR” OR “BUG” FREE. DEPLOY50 EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS CONCERNING ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS BY SOLUTION PROVIDER OR MANUFACTURER RELATING TO ITS PRODUCT, SOFTWARE, MEANS OR MEDIUM. CLIENT AGREES THAT USE OF THE INTERNET SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF CLIENT AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET.

9. NOTICE TO DEPLOY50 OF NON-WARRANTY BREACHES:

Client shall provide written notice to DEPLOY50 of any alleged breach of these Terms or any applicable Order by DEPLOY50 (other than a Warranty Notice by DEPLOY50 as provided in Paragraph 8 above) within ten (10) days of said breach, and shall specify with reasonable detail the breach (“Breach Notice”). In the event of a timely Breach Notice by Client, the terms of Paragraph 10 shall provide the sole remedy to Client for such breach.

10. CLIENT’S SOLE REMEDIES AND LIMITATION OF LIABILITY:

WARRANTY REMEDY AND BREACH REMEDY: In the event of an alleged breach by DEPLOY50 of the limited warranty regarding Products and a timely Warranty Notice to DEPLOY50 from Client, DEPLOY50’s sole responsibility shall be to provide Client replacement Products for non-conforming Products within thirty (30) days after the timely Warranty Notice or, if the replacement Products cannot reasonably be delivered within thirty (30) days, then DEPLOY50 will provide such replacement Products within a reasonable period thereafter as long as DEPLOY50 has commenced and is proceeding with such replacement Products (“Warranty Remedy”). In the event of an alleged breach by DEPLOY50 of any other term or provision of these Terms or any Order and a timely Breach Notice to DEPLOY50 from Client, DEPLOY50’s sole responsibility shall be to cure such breach within thirty (30) days after the date of the Breach Notice or such longer period as may be required as long as DEPLOY50 has commenced the cure within the 30-day period and is using commercially reasonable efforts to cure the breach (“Breach Remedy”).

CLIENT’S SOLE REMEDIES IF FAILURE OF WARRANTY REMEDY/BREACH REMEDY: In the event DEPLOY50 fails to correct an alleged breach of warranty by providing a Warranty Remedy or fails to correct any other breach, including a failure to provide the Products, by providing a Breach Remedy, Client’s sole remedy shall be to terminate any applicable Order and to receive a refund of any amount actually paid for the Product which was non-conforming or which was not provided by DEPLOY50, or a credit for such non-conforming Product if Client has not yet paid for it. Notwithstanding the foregoing, even in the event of such termination, Client shall be responsible for and shall pay DEPLOY50 for all other Products previously provided by DEPLOY50 pursuant to any Order which were not non-conforming or for which no Warranty Notice or Breach Notice was provided DEPLOY50. However, Client’s right to terminate any applicable Order must occur by written notice to DEPLOY50 within sixty (60) days of the Warranty Notice or Breach Notice and prior to completion of the Warranty Remedy or Breach Remedy.

LIMITATION OF LIABILITY. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL DEPLOY50’S TOTAL LIABILITY TO CLIENT FOR ANY CAUSE OR CLAIM WHATSOEVER EXCEED THE ITEMIZED FEE FOR THE NON-CONFORMING OR UNDELIVERED PRODUCTS AS SET FORTH IN THE APPLICABLE INVOICE AND/OR ORDER; THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR STATUTE INCLUDING WITHOUT LIMITATION, NEGLIGENCE ACTIONS. CLIENT AGREES AND ACKNOWLEDGES THAT THIS IS AN ADEQUATE REMEDY. IN NO EVENT SHALL DEPLOY50 BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE IN ANY WAY ARISING OUT OF OR RELATING TO ANY ORDER OR THESE TERMS INCORPORATED IN THE ORDER, INCLUDING WITHOUT LIMITATION, DELAY OR SUSPENSION IN PROVISION OF PRODUCTS, LOSS OF BUSINESS, LOSS OF PROFITS, SAVINGS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT, LOSS OF USE OF PRODUCTS, LOSS OR CORRUPTION OF DATA, COSTS OF SUBSTITUTE PRODUCTS, EQUIPMENT, OR GOODS, OTHER COSTS OR LOST OPPORTUNITY COSTS, INABILITY TO RESTORE DATA FOR ANY REASON, OR ANY LOSS RELATED TO NON¬ PERFORMANCE OR DELAY, OR ANY OTHER TYPE OF LOSS EVEN IF SUCH DAMAGES WERE FORESEEABLE AND THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAID HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH HEREIN AND THAT DEPLOY50 WOULD NOT ENTER INTO ANY APPLICABLE ORDER WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
ENTIRE REMEDY AND LIMITATION OF LIABILITY. DEPLOY50’s entire liability and Client’s sole remedies, whether pursuant to contract, tort, statute or in any way related to or otherwise concerning any applicable Order (or these Terms) are limited as set forth in this Paragraph 10.

11. TERMINATION:

Client shall be deemed to be in default of any applicable Order (and/or these Terms) and DEPLOY50 may, in addition to all other remedies available to it, terminate these Terms and any applicable Order immediately without notice or opportunity of Client to cure if Client (a) fails to make any payment due under any Order or invoice from DEPLOY50 within thirty (30) days of the date the payment is due, (b) breaches any other term of these Terms or applicable Order (other than payment terms), which are not cured by Client within ten (10) days of written notice by DEPLOY50, (c) terminates or suspends business operations or (d) makes an assignment for the benefit of creditors, files for protection under the U.S. bankruptcy code or similar law or has a bankruptcy petition filed against Client which is not discharged within thirty (30) days of filing. Default in paying any sum due under any applicable Order (and these Terms) will be remedied only if the payment also includes the Late Fee payable as described above. In addition, DEPLOY50 may terminate any Order immediately upon written notice to Client without liability if, in DEPLOY50’s sole reasonable discretion, providing the Products, or any Product, may be prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body, or if for any reason beyond DEPLOY50’s reasonable control the Products cannot be delivered for reasons including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving DEPLOY50’s employees), weather of exceptional severity or acts of local or central government or other authorities or regulatory bodies, natural disaster, terrorism, riot, sabotage, transportation delays, computer failure, hardware failure, telecommunications failure, electronic mail failure, power failure, or failure of Client to cooperate with the reasonable requests of DEPLOY50. Additionally, DEPLOY50 may terminate any Order upon thirty (30) days prior written notice to Client.

12. CLIENT OBLIGATIONS UPON TERMINATION:

Upon termination of any applicable Order, at DEPLOY50’s request, Client shall: within five (5) business days of the date of termination, at Client’s expense, deliver to DEPLOY50 and forthwith remove and/or return all Products to DEPLOY50 at the address set forth above, including software provided hereunder for which Client has not paid which are in Client’s possession or control; and provide an officer’s certificate attesting to such delivery, removal and/or return as is satisfactory to DEPLOY50 in its reasonable discretion; and remit the Purchase Price and all Late Fees payable for Products due prior to the date of such termination and any other charges due hereunder.

13. DEPLOY50’S REMEDIES:

DEPLOY50 reserves the right to exercise any and all remedies available to DEPLOY50 under these Terms and applicable law, including but not limited to any or all of the following: (a) termination of any applicable Order as provided above; (b) requiring Client to pay to DEPLOY50, on demand (i) an amount equal to the sum of all amounts then due and past due, and (ii) all other amounts that may thereafter become due hereunder to the extent that DEPLOY50 will be obligated to collect and pay such amounts to a third party; (c) cancel all pending Orders and recover any cancellation charges from Client; (d) repossess any Products pursuant to its security interest; and (e) sell any of the Products subject to the security interest described above. DEPLOY50 shall be entitled to seek injunctive relief (without the requirement of posting a bond) with regard to any breach by Client other than a breach for failure to pay. Client shall reimburse DEPLOY50 on demand for all reasonable expenses of enforcement of these Terms and any applicable Order (including, without limitation, reasonable attorneys’ fees and other legal costs) and including all such costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments or with collecting or enforcing these Terms and any applicable Order in any Client bankruptcy proceeding.

14. PURCHASE MONEY SECURITY INTEREST:

If the full Purchase Price for Products provided by DEPLOY50 to Client is not paid prior to Delivery of the Products to Client, DEPLOY50 hereby retains and Client hereby grants DEPLOY50 an unconditional purchase money security interest in the Products purchased by Client, all additions and accessions thereto, and the proceeds thereof, to secure payment and performance of all of the Client’s obligations to DEPLOY50. Client agrees and acknowledges that DEPLOY50 is authorized to immediately file a UCC-1 financing statement in the appropriate jurisdictions, evidencing its security interest in the Products. Client shall provide all information requested by DEPLOY50 and shall otherwise cooperate with DEPLOY50 to enable it to perfect its security interest.

15. RETURN POLICY:

DEPLOY50 has a return policy with respect to Products, which policy is incorporated into these Terms and any Order.

16. INDEMNIFICATION:

Client shall indemnify and hold harmless DEPLOY50 and Solution Providers upon demand against any and all costs, expenses (including, without limitation, legal costs and reasonable attorneys’ fees), liabilities, losses, damages, claims, demands and judgments (“Losses”) incurred, suffered or related to any breach by Client of any Order (and/or these Terms) or any Misuse of the Products, and shall indemnify and hold DEPLOY50 harmless against any claim by any Solution Provider for any Losses arising from or related to Client’s use of such Solution Provider’s products, software or services.

17. ASSIGNMENT:

CLIENT SHALL NOT SELL, ASSIGN, OR OTHERWISE TRANSFER (collectively, “Transfer”) ANY ORDER, IN WHOLE OR IN PART, WITHOUT DEPLOY50’S PRIOR WRITTEN CONSENT which DEPLOY50 may grant, withhold or condition in its sole discretion. Any attempted Transfer without DEPLOY50’s prior written consent shall be void. DEPLOY50 shall have the right to Transfer any Order to any successor or assignee of DEPLOY50.

18. NOTICES:

Notices must be in writing and will be deemed given five (5) days after mailing, or two (2) days after sending by nationally recognized overnight courier, to the other party’s business address as set forth herein, or to such other address designated by either party to the other by written notice given pursuant to this sentence.

19. SEVERABILITY:

Each term hereof shall be interpreted to the maximum extent possible so as to be enforceable under applicable law. A determination by any court of competent jurisdiction that any provision in any Order and/or these Terms is void or unenforceable shall not affect the enforcement or enforceability of any other provision in any Order and/or these Terms; all provisions other than the provision which is determined to be void or unenforceable are and shall remain in full force and effect.

20. APPLICABLE LAW:

VENUE; JURISDICTION. Any action related to any Order shall be governed by the laws of Illinois without regard to choice of law principles, and jurisdiction and venue for any litigation arising from or related to these Terms shall be exclusively proper, if in state court, in the Circuit Court for the Eighteenth Judicial Circuit, DuPage, County, Illinois, and if exclusively within the jurisdiction of a federal court, in the U.S. District Court for the Northern District of Chicago, Eastern Division, Chicago, Illinois. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to any Order.

21. EXPORT CONTROLS:

Client agrees to comply with all applicable U.S. export control laws and regulations as from time to time amended, including without limitation, those administered by the U.S. Department of Commerce and the U.S. Department of State. Client shall not export, import or transfer any of the Products contrary to U.S. or other applicable laws, whether directly or indirectly, and shall not cause, approve or otherwise facilitate others such as agents or any third parties in doing so. Client represents that neither the U.S. Department of Commerce nor any other federal agency has suspended, revoked or denied its export privileges. Client further agrees not to use or transfer any of the Products for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. government by regulation or specific license.

22. LIMITATION OF CLAIMS AGAINST DEPLOY50:

All actions including any claims or lawsuits brought by Client for breach or enforcement of these Terms or any Order must be filed within one (1) year of the time the Products which are the subject of, or are involved in or related to the claim, were delivered or provided to Client, or Client shall be forever barred from bringing such action.

23. JOINT AND SEVERAL LIABILITY:

If the Client shall consist of more than one person or entity, the obligations hereunder of such persons or entities shall be joint and several.

24. MISCELLANEOUS:

These Terms along with all Orders constitute the entire agreement between Client and DEPLOY50 with respect to the Products, and supersede all prior negotiations, agreements and understandings between the parties with respect to same, whether oral or written, including but not limited to any quotes, proposals, purchase orders, invoices or similar documents. These Terms or any Order may not be modified or changed except by a writing signed by both parties which specifically mentions these Terms or the Order. DEPLOY50 shall not be liable for any failure to provide Products due to circumstances beyond its control including but not limited to acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving DEPLOY50’s employees), weather of exceptional severity or acts of local or central government or other authorities or regulatory bodies, natural disaster, terrorism, riot, sabotage, transportation delays, computer failure, hardware failure, telecommunications failure, electronic mail failure, power failure, or failure of Client to cooperate with the reasonable requests of DEPLOY50. Any Order may be executed in counterparts, all of which together with the Terms shall constitute the same document. The parties agree that a facsimile or other copy containing the signatures of both parties shall be as enforceable as the original executed Order. The failure of either party to enforce at any time any provision of any Order or these Terms shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision hereof. No waiver by either party, either express or implied, or any breach of any Order or these Terms shall be construed as a waiver of any other term or condition. The provisions of any Order and these Terms that by their nature continue in effect shall survive the termination or expiration of any Order, including but not limited to Paragraph 10 (Limitation of Liability), Paragraph 12 (Client Obligations Upon Termination), Paragraph 13 (DEPLOY50’s Remedies), Paragraph 14 (Purchase Money Security Interest), and Paragraph 16 (Indemnification). Client hereby represents to DEPLOY50 that any Order and these Terms are legally binding and enforceable against Client in accordance with its terms.

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