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This User Agreement is a contract between you ("you", "yours", "Licensee") and Financeware, Inc. (dba Wealthcare Capital Management) ("Licensor," "us" or "we"). It states what responsibilities we have to you as a user of the software on this site, and any related documentation provided to you pursuant to this Agreement, which software, this Agreement and documentation may be modified from time to time (the "Software"), sets forth important disclaimers about the use of Licensor's web site, Software and the results obtained from using Licensor's web site and/or the Software, and states what rights and responsibilities you have as a user. Please take the time to read and understand it, including in particular Section 9, relating to disclaimers of warranties.
As described more fully below, in Section 2 of this Agreement, in certain limited circumstances we may be deemed to be providing investment advice to you, but not to your clients. The completeness and accuracy of the information provided in the Client Questionnaire is very important for you to develop a valid Client wealth management recommendation. Once you have delivered the written recommendation to your Client, you and your Client will have the sole responsibility for determining whether, and how, to implement the plan contained therein. Any default asset class allocation portfolio designs provided by us in the software are not endorsed by us for use with any specific Client of yours. Please take the time to read and understand this Agreement, including in particular Section 17, regarding the pre-dispute arbitration clause related to potential investment advisory activities.
If you accept this User Agreement including all of its terms, please click on the "Accept" button below. You may also wish to print out a copy of this User Agreement for your records. If you do not accept this User Agreement, please click on the "Decline" button, and you will not be able to access the Software.
Subject to the terms and conditions of this Agreement, Licensor hereby grants to the person clicking on the "Accept" button (the "Authorized User"), and the Authorized User hereby accepts from Licensor, a nonexclusive, nontransferable and non-assignable license, for the term of this Agreement, to (a) use the then-current version of the Software only by connection to the Licensor's site, and solely for use by the Authorized User in connection with providing financial advisory services to (i) the Authorized User's Clients (which term "Clients," as used in this Agreement, shall mean individuals to whom the Authorized User provides financial services and advice regarding their own personal financial situation (or is offering to provide such advice - prospective Clients), which individuals are not employees or independent contractors of the Authorized User or the Authorized User's employer), and, (ii) if the Authorized User is working for a company which is providing financial advisory services, the employer's Clients to whom the Authorized User is assigned to provide financial advisory services; provided however that, in no case shall the Authorized User be permitted to use the Software as a centralized resource or department providing services to the clients of other employees of the Authorized User's employer to whom other employees of the employer have been assigned to provide financial advisory services, including without limitation as a member of a financial planning department providing services to multiple advisors, unless the Authorized User has agreed in writing with Licensor, pursuant to Section 7 hereof, to make an additional payment to Licensor for such right, and (b) permit a particular Client for which the Authorized User has provided financial advisory services to access and use the Software only by connection to the Licensor's site and solely for use by the applicable Client to review and modify the financial plan prepared for the applicable Client by the Authorized User; provided however that, prior to so obtaining access to or so using the Software, such Client shall have signed or acknowledged acceptance of a written agreement by which Client acknowledges and agrees to the terms which are at least as restrictive as the terms of this Agreement or entered into the User Agreement - Personal Use Only, in which case such use shall be subject to that agreement. If you wish to use the Software for personal use, you should enter into the User Agreement - Personal Use Only. This Agreement does not grant you and/or the Authorized User, as applicable ("User"), any title or right of ownership in the Software.
In certain limited circumstances we may be deemed to be providing investment advice to you, a United States registered financial advisor, under this Agreement.
The User is solely responsible for accurately profiling the client, which includes at a minimum: (1) establishing acceptable and ideal ranges for all client's goals at specific time periods (e.g. retirement baseline spending, education, travel, hobbies, boats, houses, other larger ticket goods and services); (2) establishing acceptable and ideal portfolio risk tolerance levels; (3) establishing acceptable and ideal ranges of ending estate or legacy goal; (4) establishing acceptable and ideal retirement ages, if applicable; (5) establishing acceptable and ideal adjustments to current savings, if applicable; and (6) accurately determining the relative trade-off values and priorities among these ranges of goals, risk tolerances and retirement ages.
The User is solely responsible for properly documenting, maintaining and updating Client profile information which would include written documentation and involve, at a minimum: (1) annual face-to-face meetings with the Client to review and verify such information; (2) the dates the User met or communicated with the client; (3) the client's written confirmation that all profiling information was correct; and (4) that the Client understands and concurs with your recommended plan.
The User is solely responsible for designing a plan recommendation that implements any target investment allocation(s) in conjunction with some combination of the client's life goal objectives based on an understanding of the client's relative goal priorities in relation to all other goals, planned retirement age, and investment risk tolerance.
The User is solely responsible for any recommended plan that utilizes model portfolios and capital markets assumptions that are modified, in any way, from the Financeware/Wealthcare Capital Management portfolio models and capital market assumptions.
The User is solely responsible for any recommended plan that does not have a confidence level at the time of the recommendation, based on the then current client financial asset valuations, of between 75% and 90% based on the software's analysis computational results.
The User is solely responsible for any recommended plan that does not implement the User recommended targeted Financeware/Wealthcare Capital Management portfolio model(s) through acquiring cost effective index funds or ETFs that model the same asset class indices that comprise the Financeware/Wealthcare Capital Management portfolio models in their proper proportions.
The User is solely responsible for any recommended plan where the User fails to update and document the values of client financial assets at least quarterly, giving the client an opportunity to provide an updated value for financial assets the User does not manage and to provide any new goals, or changes in relative goal priorities or trade-off preferences.
The User is solely responsible for any recommended plan where the User fails to constantly monitor the actual client portfolio asset allocation weightings and adjust them to match the Financeware/Wealthcare Capital Management targets models when any component of a User recommended portfolio allocation becomes out of balance with those models by more than 5% of the total portfolio(s) value.
We shall be responsible for creating, testing, and updating (as necessary) the financial planning algorithms and User interface and output software features utilized in preparing and presenting a Client recommended plan.
We shall be responsible, from time to time on a frequency to be determined in the sole discretion of Licensor, for creating, testing, and updating the Financeware/Wealthcare Capital Management target models and capital market assumptions utilized in preparing a Client plan.
For any specific Client, if the User does not execute all of the tasks specified in 2.1, above, we have no fiduciary responsibility to the User regarding the User's development of a Client recommendation created for such specific Client through authorized use of the Software and related User support services.
Non-Waiver of Rights: Notwithstanding the foregoing, nothing contained in this paragraph or elsewhere in this Agreement shall constitute a waiver by you of any of your legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.
This User Agreement shall become effective when you indicate your acceptance by clicking on the "Accept" button below, and shall continue in effect until terminated as provided in Section 8 below. Upon termination of this Agreement, the license granted by Licensor to User hereunder shall immediately terminate. User and any Client permitted to use the Software pursuant to the terms of this Agreement shall cease using the Software and Licensor's site pursuant to the terms of this Agreement immediately upon the termination of this Agreement. In addition, if Licensor has permitted User to obtain any copies of the Software, User promptly shall destroy or write over all copies of the Software in the User's possession or control, and shall certify in writing to Licensor that all such copies have been so written over or destroyed.
The User has the sole responsibility to obtain and properly configure appropriate hardware and software necessary to use the Software, and to obtain a connection to Licensor's site over the Internet.
User acknowledges that Licensor and its licensors, to the extent applicable, are the sole owners of the Software and, except as expressly permitted herein, have the sole right to grant licenses to the Software. User acknowledges that the Software constitutes valuable confidential information and trade secrets, proprietary to Licensor and its licensors. User acknowledges that all copies, whether partial or complete, of the Software as well as proprietary rights in and appurtenant to the Software, including without limitation to copyright, patent and trade secret rights, are and shall remain the sole property of Licensor or its licensors. User shall have only the limited use rights specifically granted by this Agreement and the License granted hereunder. Any rights not expressly granted in this Agreement are expressly reserved.
User shall not modify or otherwise prepare derivative works, reverse engineer, disassemble, de-compile, recreate or generate any of the Software or portion thereof.
Except as expressly provided in Section 1 of this Agreement, User shall not use, give permission in connection with the use of, copy, disclose or make available, directly or indirectly, all or any portion of the Software or related documentation to any person.
User agrees that User will comply at all times with, and will not take any action which will cause Licensor to fail to comply at all times with, all relevant export laws and regulations of the United States and/or any other applicable jurisdiction, to assure that neither the Software, nor any product thereof, is exported or re-exported, directly or indirectly, in violation of United States law or the law of any other applicable jurisdiction.
If User incorporates any calculations generated through the use of the Software and/or the use of Licensor's site in any reports, charts, tables or other documents, User shall accurately identify, subject to Section 6 below, in print on the relevant document, the Software and Licensor as having generated such calculations, and the nature of such Software, the data used by the Software and the nature of the calculations performed by the Software. Further, User agrees that it shall include in any report, chart, table and/or other document(s) provided to a Client, any and all disclaimers and notices which the Software is designed to include in the report, chart, table and/or other document when the document is created using the Software.
Licensor reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this Agreement.
By clicking the "Accept" button below, User acknowledges that unless specifically stated otherwise, all content (whether contained within the site, emailed or otherwise transmitted to User by Licensor) is the sole property of Licensor and it is protected by international copyright laws and therefore cannot be used without the explicit permission of Licensor. User also acknowledges they are opting to receive educational, support and/or promotional emails from Licensor and such emails will continue until such time User requests to be removed from the distribution list or at any time the Licensor decides to cease such mailings to User. User acknowledges that if they "opt-out" of receiving these emails (or provides an invalid email address), they may not receive important information about modifications to the Software and may also incur additional costs for support.
User will represent only that the Software is a software tool which provides certain information, and will accurately represent the data employed by the Software and the nature of the calculations performed by the Software.
Without limiting the foregoing, User will not make any inaccurate or misleading statements, explicitly or by implication, regarding the Software, Licensor, and the relationship between User and the Software and Licensor, and in particular, User will not state or imply that:
(a) the results of calculations performed by the Software constitute predictions or financial advice;
(b) Licensor is furnishing financial advice or planning services to User's Clients; or
(c) User is approved, licensed, reviewed, endorsed, guaranteed or otherwise connected with Licensor, except as a Licensee of the Software.
User represents and warrants to Licensor that User is a professional financial planner, advisor, and/or broker, that User has all required licenses to engage in these services, and that User's use of the Software, the Licensor's Site, and the results of any calculations performed by the Software will be represented accurately and used in compliance with all applicable laws and regulations. User also represents and warrants that User has read and accepts the conditions of the Privacy Policy on the Licensor's web site for yourself and as a representative of your Clients. User further acknowledges and agrees that, if Licensor modifies its Privacy Policy, which it may do in its discretion from time to time, the continued use of the Software and/or Licensor's site affirms User's acceptance and agreement to any modifications which have been made to the Privacy Policy.
User represents and warrants that: (1) User has full power and authority to enter into this Agreement; (2) the terms hereof do not violate any obligation by which the User is bound, whether arising by contract, operation of law, or otherwise; and (3) this Agreement has been duly authorized and will be binding according to its terms. If this Agreement is entered into by a trustee or other fiduciary, such trustee or fiduciary represents that the services to be provided to User under this Agreement are within the scope of the services and investments authorized by the governing instruments of, and/or laws and regulations applicable to, the Client and that such trustee or fiduciary is duly authorized to enter into and renew this Agreement. At our request, the trustee or fiduciary shall provide us with copies of the governing instruments authorizing the User to enter into this Agreement. The trustee or fiduciary undertakes to advise us of any material change in his or her authority or the propriety of continuing this Agreement.
The User's Client has appointed or will appoint a custodian (the "Custodian") separate from us to take possession of the cash, securities, and other assets in the Client's account. We will have no access to the assets in your Client's account or to the income produced there from and will not be responsible for any acts or omissions of the Custodian.
User has paid or shall pay Licensor Licensor's standard fee(s) which Licensor charges its licensees/clients for the license, access to Licensor's site and/or the provision of any services provided by Licensor, or such other fees(s) as are mutually agreed upon by the parties for such license, access and/or services. The parties acknowledge and agree that, if the Authorized User desires to use the Software as a centralized resource or department providing services to the clients of other employees of the Authorized User's employer to whom other employees of the employer have been assigned to provide financial advisory services, the Authorized User shall pay Licensor a mutually agreed upon additional fee for such use, which agreement relating to the fee and related payment terms shall be set forth in a writing signed by both the Authorized User and Licensor.
If Licensor invoices for any charges for a license granted, access to Licensor's site, and/or services provided by Licensor, User shall pay such invoice in full within thirty (30) days of the date of the applicable invoice. Any past due invoice is subject to a late payment penalty of 1.5% of the amount past due for each month or partial month the invoice remains past due. If Licensor accepts payments for charges for a license granted by credit card, User hereby agrees to provide Licensor with appropriate credit card information to accommodate payment for agreed license fees and agrees to use best efforts to timely notify Licensor if and when a credit card expires, expiration date changes or a new card is to be used. User agrees to bear any risk of loss associated with User's failure to timely and accurately fulfill this obligation.
The charges for the license(s) granted, access to Licensor's site, and/or services provided by Licensor are exclusive of any and all taxes, levies, duties, import and export charges, or any other form of taxation properly chargeable with respect to this Agreement, the Software, the services provided and payments made under this agreement, imposed from time to time by any taxing authority, which taxes, levies, duties, import and export charges, and fees due pursuant to other forms of taxation (other than taxes based on Licensor's net income) will be the responsibility of User.
This Agreement may be terminated by either party at any time without penalty upon written notice. Such termination shall not, however, affect liabilities or obligations incurred or arising under this agreement prior to such termination, including the provisions regarding arbitration, which shall survive any expiration or termination of this Agreement. If you terminate this Agreement within five business days of its signing, you will receive a full refund of all fees and expenses.
If any fee to be paid by User for the rights and license granted herein is past due, Licensor may terminate this Agreement and the license granted hereunder without prior notice. Licensor in its sole and absolute discretion, without prior notice, may terminate this Agreement and the license granted hereunder if User shall fail to comply with any obligation to Licensor under this Agreement or any other agreement between User and Licensor, including without limitation, a breach of any restrictions on the use of the Software or any other intellectual property licensed to User, any other infringement of the intellectual property rights of Licensor or its licensor, or if any representation of User shall be inaccurate, or if any warranty of User shall be breached. If User in any way infringes the intellectual property rights of Licensor or its licensor(s), Licensor may also, in its sole and absolute discretion, without prior notice, terminate any other agreement between User and Licensor. All obligations relating to non-use and non-disclosure and arbitration, and any other provisions that by their nature should survive termination of this Agreement, shall survive the termination of this Agreement.
USER EXPRESSLY AGREES THAT THE USE OF THE SOFTWARE AND LICENSOR'S SITE IS AT USER'S SOLE RISK. THE SITE AND THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, OTHER THAN THE WARRANTY WHICH IS EXPRESSLY SET FORTH IN SECTION 11 OF THIS AGREEMENT BELOW, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF OPERABILITY, OF CONFORMANCE TO PUBLISHED SPECIFICATIONS, NON-INFRINGEMENT, TITLE OR OF MERCHANTABILITY. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE BEING PROVIDED MAY BE MODIFIED OR MADE UNAVAILABLE AT LICENSOR'S DISCRETION, AND THAT IN THE CASE OF A MODIFICATION OF THE SOFTWARE, SUCH MODIFIED SOFTWARE MAY NOT BE COMPATIBLE WITH DATA, REPORTS OR OTHER INFORMATION CREATED USING A PRIOR VERSION OF THE SOFTWARE, AND THEREFORE MAY NOT BE ACCESSIBLE VIA USE OF THE MODIFIED VERSION. LICENSOR DOES NOT GUARANTEE THAT THE SITE OR THE SOFTWARE WILL BE AVAILABLE FOR USE AT THE TIMES OR LOCATIONS OF USER'S CHOOSING. THE ENTIRE LIABILITY OF LICENSOR AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF LICENSOR'S SITE AND THE SOFTWARE SHALL BE THE RECOVERY OF DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF ANY FEE PAID FOR THE MATERIAL OR SERVICE CAUSING SUCH DAMAGE. IN NO CASE SHALL LICENSOR BE LIABLE FOR LOST OR CORRUPTED DATA, LOST PROFITS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION ARISING FROM THE USE BY USER OF LICENSOR'S SITE OR THE SOFTWARE, FOR ANY OTHER CLAIM RELATED IN ANY WAY TO USER'S USE OF LICENSOR'S SITE OR THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE WARRANTIES SHALL BE EXCLUDED AND THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
LICENSOR IS NOT ENGAGED IN RENDERING INVESTMENT OR FINANCIAL ADVICE TO YOUR CLIENT, AND THE RESULTS OF USE OF THE SOFTWARE AND LICENSOR'S SITE MUST NOT BE REGARDED OR REPRESENTED AS CONSTITUTING PARTICULARIZED INVESTMENT OR FINANCIAL ADVICE BY US TO YOUR CLIENTS. AS A PROFESSIONAL FINANCIAL ADVISOR OR PLANNER, REGISTERED REPRESENTATIVE, INSURANCE AGENT AND/OR REPRESENTATIVE, OR IN ANY OTHER STATUS WHEREBY YOU MAKE A LIVING BY PROVIDING FINANCIAL, INVESTMENT AND/OR INSURANCE ADVICE TO OTHERS, YOU BEAR RESPONSIBILITY FOR ADVICE AND SERVICES FURNISHED TO YOUR CLIENTS, REGARDLESS OF WHETHER YOU EMPLOYED THE SOFTWARE OR LICENSOR'S SITE IN CONNECTION WITH THE DEVELOPMENT OF SUCH ADVICE. HOWEVER, IN THE EVENT YOU HAVE FULLY MET THE REQUIREMENTS SET FORTH IN SECTION 2 OF THIS AGREEMENT, WE ACCEPT REPONSIBILITY SOLELY TO YOU TO THE EXTENT THE ADVISORY SERVICES WE HAVE PROVIDED TO YOU WERE DEFICIENT OR OTHERWISE INADEQUATE TO MEET OUR OBLIGATIONS TO YOU UNDER THIS AGREEMENT. POSSIBLE FUTURE RESULTS OF INVESTMENT DECISIONS ARE PROVIDED MERELY FOR INFORMATION PURPOSES AND SHOULD NOT BE REGARDED AS A PREDICTION OR GUARANTEE OF ANY FUTURE RESULTS. NOTHING CONTAINED IN THE SOFTWARE OR ON LICENSOR'S SITE SHALL BE CONSTRUED AS (1) A RECOMMENDATION TO BUY OR SELL ANY SECURITY OR INVESTMENT PRODUCT OR (2) AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OR INVESTMENT PRODUCT.
Licensor represents and warrants that it has the right to grant the licenses herein granted to User, and that, to its knowledge, the Software and the exercise by User of the rights herein granted shall not infringe any copyright, patent or trade secret of any third party. We represent that we are registered as an investment advisor under the Investment Advisors Act of 1940 and are authorized and empowered to enter into this Agreement.
You shall indemnify and hold harmless us and our affiliates and its respective directors, managers, officers, agents and employees, from and against any and all losses, claims, demands, actions, or liability of any nature, including but not limited to attorneys' fees, expenses and court costs, arising out of or in connection with this Agreement, except to the extent based upon, arising out of or in connection with our grossly negligent, reckless, willfully improper or illegal conduct in its performance or failure to perform under this Agreement, actions outside the scope of our authority or other material breach under this agreement, by us, our directors, managers, officers, employees and agents.
Non-Waiver of Rights: Notwithstanding the foregoing, nothing contained in this paragraph or elsewhere in this Agreement shall constitute a waiver by you of any of your legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.
No rights, duties or obligations under this Agreement may be assigned or otherwise transferred without the prior written consent of the parties.
You acknowledge and agree that we may provide services to other Users and receive fees for such services. The information provided with respect to such other Users and our own account may differ from the information given with respect to you and your Client.
The Software and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
User acknowledges receipt of our Form ADV, Part II or similar disclosure document. User also acknowledges that User has reviewed the risk factors and fees associated with this Agreement.
- Arbitration is final and binding on all parties.
- The parties are waiving their right to seek remedies in court; including the right to jury trial, except to the extent such a waiver would violate applicable law.
- Pre-arbitration discovery is generally more limited than and different from court proceedings.
- The arbitrators' award is not required to include factual findings or legal reasoning and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
- The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
Any controversy or dispute, which may arise between you and us concerning any transaction or the construction, performance or breach of this Agreement, shall be settled by arbitration. Any arbitration shall be pursuant to the rules, then applying, of the American Arbitration Association, except to the extent set forth herein. The arbitration panel shall consist of at least three individuals, with at least one panelist having knowledge of investment advisory activities. The parties agree that any arbitration proceeding pursuant to this provision shall be held in a location as determined by the rules of the American Arbitration Association.
The award of the arbitrators shall be final and binding on the parties, and judgment upon the award rendered may be entered into in any court, state or federal, having jurisdiction.
The Agreement to arbitrate does not entitle you to obtain arbitration of claims that would be barred by the relevant statute of limitations if such claims were brought in a court of competent jurisdiction. If at the time a demand for arbitration is made or an election or notice of intention to arbitrate is served, the claims sought to be arbitrated would have been barred by the relevant statute of limitations or other time bar, any party to this Agreement may assert the limitations as a bar to the arbitration by applying to any court of competent jurisdiction, and you expressly agree that any issues relating to the application of a statute of limitations or other time bar, are referable to such a court. The failure to assert such bar by application to a court, however, shall not preclude its assertion before the arbitrators.
This Agreement represents the entire agreement between User and Licensor concerning the subject matter hereof and supersedes all prior oral and written agreements, discussions and other communications, and understandings between the parties with respect to the subject matter hereof, and neither of the parties shall be bound by any conditions, inducements or representations, including without limitation any statement in any advertising or promotional materials by or on behalf of Licensor. User agrees that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of either party to insist upon any of its rights under this Agreement upon one or more occasions shall not be deemed a waiver of such rights on any subsequent occasions. The laws of the Commonwealth of Virginia, excluding its conflicts-of-law rules, govern the construction and interpretation of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. User's conduct may be subject to other local, state, national, and international laws.
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