English (UK - USA)
Mastermailer Stationary Ltd Standard Conditions of Sale

 

IMPORTANT  NOTE:  The  Buyer's  attention  is  in  particular  drawn  to  the  provisions  of

conditions 11 and 12 which contain exclusions and restrictions as to the Company's liability.

 

 

 

1. INTERPRETATION

 

1.1 In these Conditions, unless the context requires otherwise:

1.1.1 the following words and expressions have the following meanings:

"Business Day" means 9 am to 5 pm on any day (not being a Saturday, Sunday or public holiday) when clearing banks in the City of London are open for the transaction of general sterling banking business;

"Buyer" means the person, firm or company who purchases Goods from the Company;

"Company" means MASTERMAILER STATIONERY LIMITED, a company registered

in England and Wales with company number 04187229 and whose registered office is

at Bloxham Mill, Barford Road, Bloxham, Banbury, OXON, OX15 4FF, England;

"Contract" means any contract between the Company and the Buyer for the sale and

purchase of Goods;

"Delivery Point" means the address for delivery of the Goods specified by the Buyer in the Contract or otherwise in writing;

"Goods" means any goods agreed to be supplied to the Buyer by the Company (including any part or parts of them);

"Loss" means any direct, indirect or consequential loss (all three of which terms

include,  without  limitation,  pure  economic  loss,  loss  of  profits,  loss  of  business,

depletion of goodwill and any similar loss), costs, damages, charges or expenses

howsoever caused or arising, including as a result of breach of contract, tort and/or

negligence; and

1.1.2 all references to a statutory provision shall include references to:

1.1.2.1 any statutory modification, consolidation or re-enactment for the time being in

force;

1.1.2.2 all statutory instruments or orders made pursuant to a statutory provision; and

1.1.2.3 any statutory provisions of which a statutory provision is a consolidation, re-

enactment or modification;

 

 

1.1.3 words denoting the singular shall include the plural number and vice versa and words

denoting the masculine gender shall include the feminine and neuter genders;

1.1.4 unless  otherwise  stated,  a  reference  to  a  "condition"  is  to  a  condition  of  these

Conditions;

1.1.5 references  to  a  person  include  bodies  corporate,  unincorporated  associations,

organisations, firms, partnerships, governments, governmental and quasi governmental

bodies and agencies of any government or governmental or quasi governmental body;

1.1.6 headings are for convenience only and do not affect the interpretation of these terms and

conditions;

1.1.7 the word "including" shall be construed without limitation.

 

2. APPLICATION OF TERMS AND CONDITIONS

 

2.1 Subject to any variation under condition 2.5, the Contract shall be on the terms contained

in these Conditions to the exclusion (other than of any set out in the Contract) of all other

terms and conditions (including any terms or conditions which the Buyer purports to

apply under any purchase order, confirmation of order, specification or other document).

Subject  to  any  variation  under  condition 2.5,  these  Conditions (together  with  the

Contract) are the only terms on which the Company is prepared to deal with the Buyer in respect of the Goods.

 

2.2 Together with the Contract, these Conditions constitute the entire agreement and

understanding of the Company and the Buyer in respect of their subject matter and

supersede  and  extinguish  any  previous  agreement,  understanding,  undertaking,

representation, warranty and arrangement relating to their subject matter.   The Buyer

acknowledges that it has not relied on any statement, promise or representation made or

given by or on behalf of the Company which is not set out in the Contract or these

Conditions.

 

2.3 In the event of any inconsistency between the terms and conditions of the Contract and

these Conditions, the terms of these Conditions shall prevail.

 

2.4 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase

order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

 

2.5 These Conditions apply to all the Company’s sales of Goods to the Buyer and any

variation to these Conditions and any representations about the Goods shall have no

effect unless expressly agreed in writing and signed by the Chief Executive of the

Company.

 

 

2.6 Each order for Goods or acceptance of a quotation for Goods by the Buyer from the

Company shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.

 

2.7 No order for Goods placed by the Buyer shall be deemed, or taken to be, accepted by

the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.

 

2.8 The Buyer shall ensure that the terms of its order and any applicable specification are

complete and accurate.

 

2.9 Any quotation given by the Company in respect of Goods is given on the basis that no

contract for the sale and purchase of Goods shall come into existence until the Company has despatched a written acknowledgement of order to the Buyer or (if earlier) the Company delivers the Goods.   Any such quotation is valid for a period of 30 days from its date, provided that the Company has not previously withdrawn it.

 

3. DESCRIPTION OF GOODS

 

3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation

or acknowledgement of order.

 

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the

Company in respect of Goods and any descriptions or illustrations contained in the Company’s catalogues, brochures or other marketing materials are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor these Conditions and neither the Contract nor these Conditions is a sale by sample.

 

3.3 The Company reserves the right to make minor alterations to the design, specification or

construction of Goods without prior notification to the Buyer.

 

4. DELIVERY

 

4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take

place at the Delivery Point.

 

4.2 Any dates specified by the Company for delivery of the Goods are intended to be an

estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

 

4.3 The Company may, upon reasonable prior notice, deliver Goods in advance of the

stated delivery date.

 

 

4.4 Save as is provided in condition 5, the Company shall not be liable for any Loss caused

by or resulting from any delay in the delivery of the Goods.

 

4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are

ready for delivery, or if the Company is unable to deliver the Goods on time because the  Buyer  has  not  provided  appropriate  instructions,  documents,  licences  or authorisations, then:

4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the

Company’s negligence);

4.5.2 the Goods shall be deemed to have been delivered; and

4.5.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable

for all related costs and expenses (including, without limitation, handling charges, any costs of redelivery, storage and insurance).

 

4.6 The Buyer shall provide at the Delivery Point and at its own expense adequate and

appropriate equipment and manual labour for unloading the Goods.

 

4.7 If the Company delivers to the Buyer a quantity of Goods of up to 10 % more or less

than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods pro rata.

 

4.8 The Company may deliver the Goods by separate instalments. Where the Company

delivers Goods by separate instalments the Company shall invoice separately for all

delivery, handling or related carriage costs and expenses in relation to each instalment .

 

4.9 Each instalment shall be a separate Contract and no cancellation or termination of any

one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any

other Contract or instalment.

 

5. NON-DELIVERY

 

5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch

from the Company’s place of business (or those of the Company's agent) shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

 

5.2 The Company shall not be liable for any Loss caused by or resulting from any non-

delivery of Goods unless the Buyer gives written notice to the Company of the nondelivery within 5 Business Days of the date when the Goods would in the ordinary course of events have been received.

 

 

 

5.3 Any liability of the Company for any Loss resulting (whether directly or indirectly) from

any non-delivery of Goods shall be limited to replacing the Goods within a reasonable

time or issuing a credit note at a pro rata rate against any invoice raised for such

Goods.

 

6. RISK AND TITLE

 

6.1 The Goods are at the risk of the Buyer from the time of delivery or, where the Buyer and

the Company have agreed a call-off arrangement, at the time the Goods are ready for

despatch.

 

6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in

full (in cash or cleared funds) all sums due to it in respect of:

6.2.1 the Goods; and

6.2.2 all other sums which are or which become due to the Company from the Buyer on any

account.

 

6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:

6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;

6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the

Buyer or any third party in such a way that they remain readily identifiable as the

Company’s property;

6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the

Goods; and

6.3.4 (at its own expense) maintain the Goods in satisfactory condition and keep them

insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction  of  the  Company.  On  request  the  Buyer  shall  produce  the  policy  of insurance to the Company.

 

6.4 The Buyer may resell the Goods before ownership has passed to it solely on the

following conditions:

6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market

value; and

6.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and

the Buyer shall deal as principal when making such a sale.

 

6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:

6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or

composition with his or its creditors, or otherwise takes the benefit of any statutory

provision for the time being in force for the relief of insolvent debtors, or (being a body

corporate) convenes a meeting of creditors (whether formal or informal), or enters into

 

 

liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for

the purpose only of reconstruction or amalgamation, or has a receiver and/or manager,

administrator or administrative receiver appointed of its undertaking or any part thereof,

or documents are filed with the court for the appointment of an administrator of the

Buyer or notice of intention to appoint an administrator is given by the Buyer or its

directors or by a qualifying floating charge holder (as defined in paragraph 14 of

Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented  to  any  court  for  the  winding-up  of  the  Buyer  or  for  the  grant  of  an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on

his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or these Conditions or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

6.5.3 the Buyer encumbers or in any way charges any of the Goods.

 

6.6 In the event of the Buyer's right to possession of the goods terminating, the Company

shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

 

6.7 The Buyer grants the Company, its agents and employees an irrevocable licence, at

any time, to enter any premises where the Goods are or may be stored in order to

inspect them, or, where the Buyer’s right to possession has terminated, to recover

them.

 

6.8 Where the Company is unable to determine whether any Goods are the goods in

respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

 

6.9 If any of the events set out in conditions 6.5.1, 6.5.2 or 6.5.3 occurs or if the Buyer shall

fail to make payment of any sum in full when such payment is due to be made to the

Company, then without prejudice to any other right or remedy to which the Company

may be entitled, the Company may at its absolute discretion suspend all future

deliveries  of  Goods  to  the  Buyer  and/or terminate  the  Contract (including  these

Conditions).

 

6.10 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s)

rights contained in this condition 6 shall remain in effect.

 

 

7. CANCELLATION AND RETURNS

 

7.1 The Company may at any time prior to any Goods being delivered cancel the order for

those Goods without any liability for any Loss caused by or resulting from such

cancellation.

 

7.2 If the Buyer wishes to return to any Goods (for a reason other than the Goods do not

comply with condition 3.1 or condition 11) the Company's prior written agreement must

be obtained.

 

7.3 Any Goods which the Buyer returns with the Company's agreement in accordance with

condition 7.2:

 

7.3.1 shall remain at the Buyer's risk until received and accepted by the Company;

 

7.3.2 shall be returned to the Company at the Buyer's expense;

 

7.3.3 shall not be accepted by the Company in the event of the Goods having deteriorated or

having been damaged prior to receipt by the Company.

 

7.4 If the Company agrees to accept a return of any Goods under conditions 7.2 and 7.3,

the Buyer agrees to pay all related costs and expenses (including, without limitation,

any handling charges and any costs of delivering any replacement or substituted

Goods).

 

8. PRICE

 

8.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be

the price set out in the Company’s price list published on the date of delivery or deemed delivery.

 

8.2 The price for the Goods shall be exclusive of any value added tax and all costs or

charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.

 

 

9. INTELLECTUAL PROPERTY

 

No right or licence is granted under the Contract or these Conditions under any patent, trade mark,

copyright, design right or other intellectual property right of the Company other than the right for the

Buyer to use or resell the Goods.

 

10. PAYMENT

 

10.1 Subject to condition 10.4, payment of the price for the Goods is due in pounds sterling

on the last working day of the month following the month in which the Goods are

delivered or deemed to be delivered.

 

10.2 Time for payment shall be of the essence.

 

10.3 No payment shall be deemed to have been made until the Company has received it as

cleared funds.

 

10.4 All payments payable to the Company under the Contract or these Conditions shall

become due immediately on its termination despite any other provision.

 

10.5 If the Buyer fails to pay the Company any sum due pursuant to the Contract and/or

these Conditions, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Royal Bank of Scotland, accruing on a daily basis until payment is made, whether before or after any judgment.

 

10.6 All amounts due under the Contract and these Conditions from the Buyer to the

Company shall be paid in full without any deduction or set off or withholding other than as required by law (in which event the Buyer shall simultaneously pay to the Company such additional amounts as will result in the receipt by the Company of a net amount equal to the full amount which would have been receivable had no such deduction or set off or withholding been required) and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.

 

11. QUALITY

 

11.1 Subject always to the other provisions of these Conditions and of the Contract, the

Company warrants that upon delivery the Goods shall:

11.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

 

11.1.2 be reasonably fit for any particular purpose for which the Goods are being bought if the

Buyer has made known that purpose to the Company in writing prior to the Company

accepting the Buyer's order for those Goods.

 

11.2 The Company shall not be liable for a breach of any of the warranties in condition 11.1

unless and until:

11.2.1 the Buyer gives written notice of the relevant defect to the Company and, if the defect is

as a result of damage in transit to the Delivery Point, within two Business Days of the time when the Buyer discovers or ought to have discovered the defect; and

11.2.2 after receiving the notice the Company is given a reasonable opportunity of examining

such Goods and the Buyer (if asked to do so by the Company) returns such Goods to

the Company's place of business at the Company's cost for the examination to take

place there.

 

11.3 The Company shall not be liable for a breach of any of the warranties in condition 11.1

if:

11.3.1 the Buyer makes any further use of such Goods after giving such notice; or

11.3.2 the defect arises because the Buyer failed to follow the Company’s oral or written

instructions as to the storage, installation, commissioning or use of the Goods or good

trade practice; or

11.3.3 the Buyer alters such Goods without the written consent of the Company.

 

11.4 Subject to condition 11.2 and condition 11.3, if any of the Goods do not conform with

any of the warranties in condition 11.1, the Company shall at its option replace such

Goods (or the defective part) or refund the price of such Goods at a pro rata rate

provided that, if the Company so requests, the Buyer shall, at the Company's expense,

return the Goods or the part of such Goods which is defective to the Company.

 

11.5 If the Company complies with condition 11.4 it shall have no further liability for a breach

of any of the warranties in condition 11.1 in respect of such Goods.

 

12. LIMITATION OF LIABILITY

 

12.1 Subject to conditions 4, 5 and 11, the following provisions set out the entire financial

liability  of  the  Company (including  any  liability  for  the  acts  or  omissions  of  its

employees, agents and sub-contractors) to the Buyer in respect of:

12.1.1 any breach of the Contract and/or these Conditions;

12.1.2 any use made or resale by the Buyer of any of the Goods, or of any product

incorporating any of the Goods; and

12.1.3 any representation, statement or tortious act or omission including negligence arising

under or in connection with the Contract.

 

12.2 Except where the Buyer is a consumer within the meaning of regulation 3(1) of the

Unfair Terms in Consumer Contracts Regulations 1999 or regulation 2 of the Sale and Supply of Goods to Consumers Regulations 2002 or deals as a consumer within the meaning of section 12 of the Unfair Contract Terms Act 1977, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract and these Conditions.

 

12.3 Nothing in the Contract or these Conditions excludes or limits or purports to exclude or

limit the liability of the Company:

12.3.1 for death or personal injury caused by the Company’s negligence;

12.3.2 under section 2(3) of the Consumer Protection Act 1987;

12.3.3 for any matter which it would be illegal or unlawful for the Company to exclude or

attempt to exclude its liability; or

12.3.4 for fraud or fraudulent misrepresentation.

 

12.4 Subject to conditions 12.2 and 12.3:

12.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory

duty),  misrepresentation,  restitution  or  otherwise,  arising  in  connection  with  the

performance or contemplated performance of the Contract and/or these Conditions

shall be limited to the value, at the Company's then current price list, of the Goods subject

to the claim; and

12.4.2 the Company shall not be liable to the Buyer for any economic loss, loss of profit, loss

of business, depletion of goodwill or otherwise howsoever, in each case whether direct, indirect or consequential, (howsoever caused) which arise out of or in connection with the Contract and/or these Conditions or the sale of Goods to the Buyer.

 

12.5 NOTHING  IN  THIS  AGREEMENT  SHALL  OPERATE  TO  OR  PURPORTS  TO

OPERATE TO AFFECT THE STATUTORY RIGHTS OF THE BUYER WHERE THE

BUYER IS A CONSUMER WITHIN THE MEANING OF REGULATION 3(1) OF THE

UNFAIR  TERMS  IN  CONSUMER  CONTRACTS  REGULATIONS 1999  OR

REGULATION  2  OF  THE  SALE  AND  SUPPLY  OF  GOODS  TO  CONSUMERS

REGULATIONS 2002 OR DEALS AS A CONSUMER WITHIN THE MEANING OF

SECTION 12 OF THE UNFAIR CONTRACT TERMS ACT 1977.

 

13. ASSIGNMENT

 

13.1 The Company may at any time assign, transfer, charge or otherwise in any manner

dispose of or deal with the Contract or any of its rights under it or sub-contract any of its obligations under it.

 

13.2 The Buyer shall not be entitled to assign, transfer, charge or otherwise in any manner

dispose of or deal with the Contract or any of its rights under it, or purport to do so,

without the prior written consent of the Company.

 

14. SEVERANCE

 

14.1 If any provision (or part provision) of the Contract and/or these Conditions shall be

found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the other provisions or the rest of the provision (as the case may be) of the Contract and/or these Conditions, which shall remain in full force and effect.

 

14.2 If any provision (or part provision) of the Contract and/or these Conditions is so found to

be illegal, invalid or unenforceable but would be legal, valid or enforceable if some part of it were to be deleted or modified, such provision (or part provision) shall apply with such deletion(s) and/or modification(s) (as the case may be) as may be necessary to make it legal, valid and enforceable.

 

15. WAIVER AND REMEDIES

 

15.1 The failure by the Company to exercise or any delay in exercising any right, power or

remedy whether provided by the Contract and/or these Conditions or otherwise does

not constitute a waiver of or impair such right, power or remedy or constitute a waiver of

any other right, power or remedy.   A waiver by the Company of a breach of any of the

terms of the Contract and/or these Conditions or of a default under the Contract and/or

these Conditions does not constitute a waiver by the Company of any other breach or

default and shall not affect the other terms of the Contract and/or these Conditions.  No

single or partial exercise by the Company of any such right, power or remedy shall

preclude or impair any other or further exercise of the same or any other right, power or

remedy by the Company whether provided by the Contract and/or these Conditions or

otherwise.   The rights and remedies of the Company provided in the Contract and/or

these Conditions are not exclusive of any rights or remedies provided by law.

 

16. FORCE MAJEURE

 

16.1 The Company reserves the right to defer the date of delivery or to cancel the Contract

or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if

it is prevented from or delayed in the carrying on of its business (or part of its business)

due to circumstances beyond the reasonable control of the Company including, without

limitation, acts of God, governmental actions, war or national emergency, acts of

terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs,

strikes or other labour disputes (whether or not relating to its workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

 

17. NOTICES

 

17.1 Without prejudice to the Company's discretion to accept orders and/or confirmation of

orders for, and/or other instructions in relation to, Goods by electronic mail, any other

notice or other communication from the Company to the Buyer or vice versa in respect

of the Contract and/or these Conditions or their subject matter shall be in writing (which

shall include facsimile transmission but exclude electronic mail) signed by or on behalf

of the party giving it and shall be served by delivering it by hand or by sending it by

prepaid first class post (if within the United Kingdom) or prepaid airmail to, in the case

of the Company, Bloxham Mill, Barford Road, Bloxham Banbury, OXON, OX15 4FF, England and, in the case of the Buyer, the address of that party

set out in the Contract (or to such other address in the United Kingdom as that party

may have notified for the purpose of and in accordance with this condition 17) or sent

by facsimile transmission to the facsimile number set out below (or to such other

facsimile number as that party may have notified for the purpose of and in accordance

with this condition 17):

17.1.1 in the case of the Company, +44 844 243 7887; and

17.1.2 in the case of the Buyer, to any fax number set out in any document forming part of the

Contract.

 

17.2 Any notice or communication served in accordance with this condition 17 shall be

deemed to have been served:

17.2.1 if delivered by hand, on the Business Day following delivery;

17.2.2 if sent by prepaid first class post, on the second Business Day following posting;

17.2.3 if sent by prepaid airmail, on the third Business Day following posting; and

17.2.4 if sent by facsimile transmission, on the Business Day following transmission.

 

17.3 In proving service of any such notice or communication, it shall be sufficient:

17.3.1 in the case of delivery by hand, to prove that such notice or communication was

properly delivered;

17.3.2 in the case of posting, to prove that such notice or communication was properly

stamped, addressed and placed in the post; and

 

17.3.3 in the case of facsimile transmission, to produce the facsimile report from the facsimile

machine from which it was sent showing the facsimile was sent to the correct facsimile

number and confirming that the transmission was completed.

 

17.4 Any such notice or other communication shall be in English.

 

18. THIRD PARY RIGHTS

 

18.1 The Contract and these Conditions are made for the benefit of the parties and their

successors and permitted assigns and are not intended to benefit or create any right

enforceable by any other person (whether under the Contracts (Rights of Third Parties)

Act 1999 or otherwise).

 

19. GOVERNING LAW AND JURISDICTION

 

19.1 The Contract and these Conditions and any dispute or claim arising out of or in

connection with them or their subject matter shall be governed by and construed in accordance with the laws of England and the parties irrevocably agree that the courts of England have non exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or these Conditions or their subject matter.

 

 

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