Lead411 ("Junkyard Panda", "we", "us", "our") provides you a Gmail extension known as Junkyard Panda that allows you to view contact information about companies, people and send out email campaigns via your Gmail account (the "Service") through Junkyard Panda's website and browser pop-ups located at junkyardpanda.com (the "Site"). The Site and Service are provided subject to the following Terms of Service (as amended from time to time, the "Terms of Service").
Lead411/Junkyard Panda may modify this TOS at any time. While we will make efforts to notify you when we make changes, you shall assume all responsibility for reviewing the TOS periodically so you are apprised of any changes. If you continue to use any Service or Site after changes to the TOS are posted, you are signifying your acceptance of the terms, including those that may have changed. If any change to this TOS is not acceptable to you, your only remedy is to terminate services.
THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST JUNKYARD PANDA ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
a) By installing the Service, you provide Lead411 and Junkyard Panda and any of its affiliates (i) a license to access information stored in Google's cloud services relating to your Gmail account, including but not limited to email messages and contact lists ("Client Data") until you uninstall the Service; (ii) an irrevocable license to copy, duplicate, modify reproduce, create derivative works of, distribute, publish, perform or display Client Data and sell, transfer, assign, disclose or make available the Client Data to any third party, including Lead411's customers, contractors, strategic partners, agents and service providers. The foregoing licenses shall be nonexclusive, royalty-free and perpetual (except as set forth in subsection (ii) above), and Lead411 shall have the right to sublicense, assign or transfer such licenses without restriction or prior notice to you.
b) Subject to the terms herein and for so long as the Service remains installed, Lead411/Junkyard Panda shall provide you access to information about your contacts and companies within your professional network, including, but not limited to the number of contacts you have in common, names, email addresses, phone numbers, social handles, titles, company size, funding and other relevant information ("Junkyard Panda Information").
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Junkyard Panda of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Junkyard Panda will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service:Junkyard Panda reserves the right to modify or discontinue, temporarily or permanently, the Site or Service (or any part thereof) with or without notice. You agree that Junkyard Panda will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or Service.
General Practices Regarding Use and Storage: You acknowledge that Junkyard Panda may establish general practices and limits concerning use of the Site or Service, including without limitation the maximum period of time that data or other content will be retained by the Service. You agree that Junkyard Panda has no responsibility or liability for the deletion or failure to store any data or other content (including, but not limited to Client Data or Junkyard Panda Information) provided by you or to you through the Site or Service. You acknowledge that Junkyard Panda reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Junkyard Panda reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
User Conduct: You are solely responsible for the content of any submission (including, but not limited to information, data (including, but not limited to Client Data), text, messages or other materials ("content") that you make through the Site or Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Junkyard Panda. Junkyard Panda reserves the right to investigate and take appropriate legal action against anyone who, in Junkyard Panda's sole discretion, violates this provision, including without limitation, removing the offending content from the Site or Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
a) transmit or otherwise make available any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to make available under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Junkyard Panda, is objectionable or which may expose Junkyard Panda or its users to any harm or liability of any type;
b) interfere with or disrupt the Site or Service or servers or networks Junkyard Pandaed to the Site or Service, or disobey any requirements, procedures, policies or regulations of networks Junkyard Pandaed to the Site or Service; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) harvest or collect email addresses or other contact information of other users from the Site or Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
f) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
g) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Site or Service.
Special Notice for International Use; Export Controls: Software (defined below) available in Junkyard Pandaion with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or within the Site or Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the site, service or data, use of the site, service or data, or access to Site, Service or data. This data, Site and Service are for your personal use.
Site and Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain information (including, but not limited to Junkyard Panda Information), content or features ("Service Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Junkyard Panda, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Site or Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own Client Data (as defined above) to which you allow the Service access. In Junkyard Pandaion with your use of the Site or Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Junkyard Panda from accessing the Site or Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Site or Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in Junkyard Pandaion therewith are the property of Junkyard Panda, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Junkyard Panda.
The Junkyard Panda name and logos are trademarks and service marks of Junkyard Panda (collectively the "Junkyard Panda Trademarks"). Other company, product, and service names and logos used and displayed via the Site or Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or Junkyard Pandaed to Junkyard Panda. Nothing in this Terms of Service, the Site or Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Junkyard Panda Trademarks displayed on the Site or Service, without our prior written permission in each instance. All goodwill generated from the use of Junkyard Panda Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Junkyard Panda be liable in any way for any content or materials (including, but not limited to Junkyard Panda Information or Client Data) of any third parties, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Junkyard Panda does not pre-screen content, but that Junkyard Panda and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Site or Service. Without limiting the foregoing, Junkyard Panda and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Junkyard Panda, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Submissions: You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or Service ("Submissions"), provided by you to Junkyard Panda are non-confidential and Junkyard Panda will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that, in addition to the other permission set forth herein, Junkyard Panda may preserve any content and may also disclose any content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(a) comply with legal process, applicable laws or government requests;
(b) enforce these Terms of Service;
(c) respond to claims that any content violates the rights of third parties; or
(d) protect the rights, property, or personal safety of Junkyard Panda, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (
a) transmissions over various networks; and
(b) changes to conform and adapt to technical requirements of Junkyard Pandaing networks or devices
The Site or Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Junkyard Panda has no control over such sites and resources and Junkyard Panda is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Junkyard Panda will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in Junkyard Pandaion with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Site or Service are between you and the third party, and you agree that Junkyard Panda is not liable for any loss or claim that you may have against any such third party.
You agree to release, indemnify and hold Junkyard Panda and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Site, Service and Junkyard Panda Information, any Client Data you provide through the Service, your Junkyard Pandaion to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. JUNKYARD PANDA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
JUNKYARD PANDA MAKES NO WARRANTY THAT (I) THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR SERVICE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT JUNKYARD PANDA WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF JUNKYARD PANDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE OR SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SITE OR SERVICE. IN NO EVENT WILL JUNKYARD PANDA'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID JUNKYARD PANDA IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
a. Agreement to Arbitrate
This Section Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Junkyard Panda, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Site or Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Junkyard Panda are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND JUNKYARD PANDA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND JUNKYARD PANDA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
c. Pre-Arbitration Dispute Resolution
Junkyard Panda is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Junkyard Panda should be sent to "Lead411 730 Evergreen Ave, Boulder, CO 80304) The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Junkyard Panda and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Junkyard Panda may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Junkyard Panda or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Junkyard Panda is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Junkyard Panda and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Junkyard Panda agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Junkyard Panda will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Junkyard Panda will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Junkyard Panda will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Without limiting this severability provision, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than subsection (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Junkyard Panda agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Junkyard Panda written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
You agree that Junkyard Panda, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Site or Service and remove and discard any content within the Site or Service, for any reason, including, without limitation, for lack of use or if Junkyard Panda believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Site or Service, may be referred to appropriate law enforcement authorities. Junkyard Panda may also in its sole discretion and at any time discontinue providing the Site or Service, or any part thereof, with or without notice. You agree that any termination of your access to the Site or Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Junkyard Panda may immediately deactivate or delete your account. Further, you agree that Junkyard Panda will not be liable to you or any third party for any termination of your access to the Site or Service.
You agree that you are solely responsible for your interactions with any other user or individual with whom you make contact as a result of the information provided through the Site or Service and Junkyard Panda will have no liability or responsibility with respect thereto. Junkyard Panda reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Site or Service.
These Terms of Service constitute the entire agreement between you and Junkyard Panda and govern your use of the Site and Service, superseding any prior agreements between you and Junkyard Panda with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Colorado without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Junkyard Panda agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Boulder County, Colorado. The failure of Junkyard Panda to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Junkyard Panda, but Junkyard Panda may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
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