Situated in Elst, Gelderland, The Netherlands.
These Terms and Conditions have been registered with the Court of Arnhem, on 14-10-2009, number 2009/49.
Copyrights to these Terms and Conditions are expressly reserved.
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Article 1 – General
1.1 In these Terms and Conditions, the terms below are defined as follows:
1.2 Any offers made by or on behalf of the Supplier, offers made, agreements concluded and their implementation, and deliveries and services provided shall be governed by these Terms and Conditions.
Any deviations from these Terms and Conditions shall only be effective if so agreed in writing between the Supplier and the Contracting party.
1.3 The applicability of any general terms and conditions other than these Terms and Conditions shall be explicitly excluded, irrespective of the title and form of such other general terms and conditions, including terms and conditions of purchase and any other general terms and conditions of the Contracting party or those that should be used by the Contracting party, and the applicability of such terms and conditions shall be explicitly declined by the Supplier.
Through the acceptance of an offer or tender made by or on behalf of the Supplier, through the conclusion of an agreement with the Supplier, through the acceptance of a delivery made by or on behalf of the Supplier, or through the acceptance of any services provided by or on behalf of the Supplier, the Contracting party unconditionally accepts that these Terms and Conditions apply and that the applicability of any other general terms and conditions referred to in this Article shall be excluded, and the Contracting party shall not accept the applicability of any other general terms and conditions where relevant.
1.4 If the Supplier has agreed in writing to the applicability of any deviating terms and conditions, the Terms and Conditions at hand shall continue to be effective, even if not explicitly stated.
1.5 The Contracting party cannot derive any rights for the future from any agreed deviations from these Terms and Conditions.
Article 2 – Offers
2.1 Any offer or tender made by or on behalf of the Supplier shall be free of engagement and shall not bind the Supplier, except if and to the extent otherwise stated in writing by the Supplier, or in the case that the parties have agreed otherwise in writing.
2.2 Price lists, brochures, catalogues, folders and other information supplied by or on behalf of the Supplier have been drawn up with the greatest possible accuracy, however only bind the Supplier if and to the extent they have been explicitly confirmed by the Supplier in writing.
The supply of any detailed information is not binding upon the Supplier unless otherwise agreed in writing.
2.3 Any brochures, catalogues, price lists and folders supplied with regard to an offer or tender, and any relevant information supplied in the form of pictures, samples, tables, diagrams etc. and any other supplied information and details shall explicitly remain the industrial and intellectual property of the Supplier.
Without the Supplier’s express written consent, the Contracting party is explicitly not allowed to either partially or wholly copy any material or any details or information referred to in the previous sentence and/or (cause to) disclose such material, details or information in any way whatsoever to any third parties, and/or to have them used by any third parties and/or sell or provide such material, details or information.
The use of such material, details and information must be strictly limited to the use for the Contracting party’s own purpose with respect to the order assigned to the Supplier.
At the Supplier’s first request, as well as in the case the Contracting party should not effect or cancel an agreement within the tender period, all the material here referred to and all the here referred to details and information must be promptly returned to the Supplier.
2.4 The Supplier is entitled to charge to the Contracting party the costs involved in the offer or tender if no agreement is effected.
2.5 Standard documentation, such as descriptions, instructions and test certificates shall be supplied free of charge unless otherwise stated by the Supplier.
Any additional copies of such standard documents and documents other than standard documents shall be charged to the Contracting party.
2.6 The stated prices only apply to the offered quantities.
Article 3 – Establishment of agreements and their subject matter
3.1 An agreement between the Supplier and the Contracting party has been established at the moment the Supplier has confirmed the acceptance of an order or assignment from the Contracting party in writing; the scope and subject matter of the agreement must be in accordance with the scope and subject matter confirmed by the Supplier in writing.
3.2 If in view of the provisions in Article 2.1 an offer or tender is not free of engagement and a binding tender period has been set, the agreement is established at the moment the offer or tender is accepted by the Contracting party; the confirmation of the order or assignment or the binding offer shall in that case be considered to correctly and fully represent the agreement.
3.3 An agreement shall only be binding upon the Supplier if it has been effected or when the written confirmation referred to in Article 3.1 has been signed by one or several persons entitled to bind the Supplier thereto, and any arrangements, commitments etc. made or done by the Supplier’s employee or employees or by a representative, agent or other intermediary or by one or more other persons not entitled to bind the Supplier hereto, or which have not been made in writing, shall not be binding upon the Supplier.
3.4 Any changes and/or partial cancellation or full cancellation of an order or assignment by or at the request of the Contracting party can only be made with the prior written consent of the Supplier and on the condition that the activities so far carried out by the Supplier shall be paid by the Contracting party in full.
In the case of a change and/or partial cancellation at the Contracting party’s request, the Supplier shall be entitled to charge the related (additional) costs to the Contracting party and set a new delivery time.
3.5 With respect to work or assignments with regard to which in view of their nature and scope no tender or order confirmation is sent, the agreement shall be concluded at the moment that the execution of the agreement is effectively started by or on behalf of the Supplier, while in that case the invoice shall be considered to be the order confirmation, which is also considered to correctly and fully represent the agreement.
3.6 An agreement with the Supplier is concluded on the express condition that the Supplier and any other of the Supplier’s parties to the contract fulfil their obligations properly and on time.
3.7 Upon the conclusion of the agreement or subsequently, the Supplier is entitled to require from the Contracting party adequate security for the timely fulfilment by the Contracting party of his payment obligations and any other obligations before the Supplier starts or proceeds with the implementation of the agreement.
3.8 The Supplier is entitled to use third parties for the purpose of the implementation of the agreement.
The respective costs shall be charged to the Contracting party in accordance with the supplied quotations.
Article 4 – Prices
4.1 Every quotation shall be free of engagement except if and to the extent a binding time-limit applies to the tender.
4.2 Unless explicitly otherwise stated in writing, the prices are:
4.3 The prices are at any time stated or agreed subject to price adjustments, which are charged if at the moment of delivery the official currency parity deviates more than 2% from the currency parity on the date when the offer or tender was made, while the latter parity is established at 100.
4.4 In the case of an increase in one or more cost-determining factors, the Supplier shall be entitled to increase the order price accordingly in compliance with any applicable statutory regulations with respect to this, provided that any future price increases that the Supplier is aware of at the time of the order confirmation must be mentioned.
Article 5 – Risk
5.1 The risk with regard to the goods sold and/or to be delivered by or on behalf of the Supplier to the Contracting party shall be transferred to the Contracting party: in the case of goods from stock, at the moment these goods are separated for the purpose of the Contracting party; and in the case of goods other than those from stock, at the moment the goods are being loaded for transport to the Contracting party or to a location indicated by the Contracting party, except if and to the extent otherwise agreed in writing.
5.2 Irrespective of any other arrangements made with regard to the risk, loading and unloading and the transport of the goods shall at any time be at the risk of the Contracting party.
Article 6 – Delivery and time of delivery
6.1 Except if and to the extent otherwise agreed in writing, and without prejudice to the provisions in Article 4.2 of these Terms and Conditions, deliveries are made carriage-paid to the Contracting party’s company or house or another location timely indicated by the Contracting party.
With regard to orders or deliveries that do not exceed a certain amount, the Supplier may charge the Contracting party with costs of administration.
6.2 Except if and to the extent otherwise agreed in writing, and without prejudice to the provisions in Article 5 with regard to the transfer of the risk, the time of delivery is the moment that the goods are unloaded at the delivery location (the physical transfer).
6.3 Within 24 hours upon delivery, the Contracting party must notify the Supplier directly of any deficits, deficiencies and damage in writing; in failure thereof the goods shall be considered to have reached the Contracting party in a good condition, complete and without any loss or damage.
6.4 The Supplier shall be entitled to supply in parts (part deliveries), which parts may be invoiced separately, and at such time the Contracting party shall undertake to pay the separate invoices in accordance with the provisions in Article 15 (Payment).
6.5 Except if and to the extent otherwise agreed in writing, the times of delivery stated by or on behalf of the Supplier in the offer or tender are not deadlines, which means for example that in the case of late delivery, the Supplier is not in default until the Contracting party explicitly holds the Supplier in default in writing.
6.6 The Supplier undertakes to observe the time or period of delivery as much as possible, however will not at any time be liable for exceeding the time or period of delivery, and in the case such time or period of delivery should be exceeded, the Supplier shall not be bound to pay any damages.
In the case a time or period of delivery should be exceeded, the Contracting party shall not be entitled to cancel or dissolve the agreement nor refuse to buy the goods.
In the case the time or period of delivery should be exceeded by a considerable amount of time, the parties will consult with each other.
6.7 If the goods should not be purchased by the Contracting party within the time or period of delivery, or if the Contracting party should fail to observe the agreed time of collection of the goods, the Supplier shall be entitled to invoice the respective goods to the Contracting party, and the Supplier shall at such time be entitled to (cause to) store these goods at his own discretion and entirely for the account and at the risk of the Contracting party.
In the case the Contracting party fails to purchase or collect the goods within the applicable period, the Supplier may at its choice claim compliance from the Contracting party or dissolve the agreement, without prejudice to the Supplier’s right, in both cases, to claim damages.
Article 7 – Transport and packaging
7.1 If no further written instructions have been supplied by the Contracting party to the Supplier, the packaging method, transport, dispatch etc. of the goods will be decided by the Supplier entirely to his own discretion and with the due care reasonably expected from the Supplier, without prejudice to the provisions with regard to the transport risk in Article 5.2 of these Terms and Conditions.
7.2 Any specific wishes from the Contracting party with regard to packaging and/or transport shall only be executed if the Contracting party compensates the costs thereof.
Further to this, the Supplier is entitled to decide not to grant any specific wishes of the Contracting party with regard to transport and/or packaging that has not been explicitly agreed between the parties beforehand.
7.3 In the case any supplied goods should not exceed a certain invoice price to be determined by the Supplier, the Supplier shall be entitled to charge administration costs.
Article 8 – Force Majeure (Default for which the Supplier cannot be held responsible)
8.1 If force majeure impedes the Supplier to fulfil any obligation in respect of the Contractor, and the Supplier anticipates that the situation of force majeure will be permanent or long-lasting, the parties may make an arrangement on the dissolution of the agreement pursuant to Law and the related implications.
8.2 If force majeure impedes the Supplier to fulfil any obligation with respect to the Contracting party, and the Supplier anticipates that the situation of force majeure will be temporary or not permanent, the Supplier will be entitled to suspend the implementation of the agreement to such extent until the circumstance, cause or occurrence causing the situation of force majeure no longer occurs.
8.3 “Force Majeure” is considered to be any circumstance, cause or occurrence, wherever such should take place, appear or occur, which temporarily or permanently impedes the correct, full and timely compliance of any of the Supplier’s commitments, which makes it impossible or unreasonably problematic, and which circumstance, cause or occurrence cannot within reason be avoided or which is partly or entirely beyond the range of the Supplier’s influence or on which the Supplier cannot within reason exercise any influence.
Circumstances, causes or occurrences causing force majeure include at least: fire, explosion, stroke of lightning, floating ice, low tide, high tide, tidal wave, spring tide, floods, earthquake, natural disasters; storm, tornado, cyclone, snow, frost and other weather circumstances; strike, work stoppage, excessive absence (through illness) of staff, industrial unrest, lock-out, boycott; war (either or not declared as such), mobilisation, martial law, siege, blockade, war risk; riots, revolution, social unrest; state measures and/or regulations impeding, delaying or otherwise complicating compliance with commitments; lack of means of transport; impassability or impracticability of any eligible transport route or method of transport; failure or interruption in the supply, delivery or availability of energy; failure or interruption in or of the operation of any public utility company, failure or interruption or termination of the supply of commodities, semi-manufactured and/or finished products; non-compliance with any commitment from a debtor or contract partner of the Supplier (including non-compliance with any commitment from one or several third parties to deliver or provide services); technical failures and/or deficiencies, delays, failure or interruption in or of repairs of machines, material, equipment et cetera; serious illness and epidemic diseases.
8.4 “Force Majeure” shall also be considered to include the implications of any circumstance, cause or occurrence referred to in Article 8.3.
8.5 If, as a result of force majeure, the Supplier should be impeded to fulfil his obligations in respect of one or several of his clients or customers, but not the obligations in respect of all the clients and customers, the Supplier will be entitled at his own discretion to decide which of the commitments and with respect to which clients and customers he will fulfil with his obligations, as well as the order in which this shall take place.
8.6 The Supplier is entitled to claim payment with regard to any performance made by or on behalf of the Supplier for the implementation of the agreement with the Contractor, before the circumstance, cause or occurrence causing force majeure took place or appeared.
Article 9 – Guarantee
Guarantee is only given to the goods supplied by the Supplier to the extent such goods have been purchased from third companies/suppliers, i.e. such guarantee shall not exceed the guarantee given by the Supplier to its own suppliers.
Article 10 – Liability
10.1 Except if and to the extent that any imperative law clauses with regard to (product) liability should provide otherwise, the Supplier shall not be bound to pay any damages whatsoever for any loss whatsoever of any real or moving property or any persons, including operational loss, caused to the Contracting party or any third party, which loss has been directly or indirectly caused by or is related to any goods supplied by or on behalf of the supplier, or is directly or indirectly caused by or related to any use or application or processing of such an item or its storage or custody, and the Contracting party explicitly indemnifies the Supplier from any claims based on or related to such a loss.
In compliance with the provisions elsewhere in this Article, the Supplier shall at any rate not be liable for any loss or damage directly or indirectly caused by:
10.2 Except in the case of the Supplier’s intent or serious default, the Supplier shall not be liable for any loss as referred to in Article 10.1, which has been caused by or is the result of any service provided by or on behalf of the Supplier.
10.3 With respect to any advice provided, the Supplier shall only be liable for defaults that normally can be anticipated and avoided, provided that such liability shall not exceed the amount of the compensation agreed and received for the respective advice.
10.4 Any liability on the part of the Supplier, shall at any time be limited to a loss directly caused, and shall at any time be limited to the amount compensated by the Supplier’s liability insurer in the respective case; if required, the Supplier shall at the Contracting party’s request supply the information up to the amount for which the Supplier is insured.
10.5 Any damages shall be considered as full damages and shall be confined to the fulfilment of the applicable guarantee obligations and/or payment by the Supplier’s insurer or payment by the Supplier (subject to the maximum referred to in Article 10.4) of the established loss.
The Contracting party explicitly and fully indemnifies the Supplier with regard to anything else.
10.6 Without prejudice to any other provisions in this Article, each claim for damages shall become barred by the lapse of one year upon the moment the loss was created or discovered or acknowledged or reasonably could have been discovered or acknowledged, and at any rate after the lapse of three years from the moment of delivery.
10.7 Any (contract and/or guarantee) provisions applicable to the transaction of goods that the Supplier has purchased from a third party shall also apply to the Contracting party, if and to the extent the Supplier should refer thereto.
Article 11 – Complaints
11.1 Without prejudice to the provisions in Article 6.3 of these Terms and Conditions, any complaints shall only be dealt with if received by the Supplier in writing within eight (8) days upon delivery.
“In writing” also includes e-mail messages.
With respect to concealed deficiencies, complaints can only be lodged within the guarantee period.
11.2 Complaints can only be dealt with if the kind of complaint and the reason have been accurately stated.
11.3 Complaints with regard to an invoice must be submitted to the Supplier in writing within eight (8) days after the date of the respective invoice.
11.4 If no complaints have been lodged or not in the required manner within the applicable period, the supplied item shall be considered to have fulfilled the agreement in full and to have been unconditionally accepted and approved by the Contracting party.
An invoice with regard to which no complaints have been lodged in the required manner within the period of eight days mentioned in Article 11.3, shall be considered to have been unconditionally accepted and approved by the Contracting party.
11.5 If a complaint with regard to the delivered item is found to be legitimate by the Supplier, the Supplier is only bound to replace or repair the faulty items, while the Contracting party cannot in addition assert any rights to any compensation whatsoever.
11.6 By lodging a complaint the Contracting party shall not be relieved from any of his payment obligations in respect of the Supplier.
11.7 Any (part of) delivered goods may, for any reason whatsoever, only be returned after the prior express permission in writing (including e-mail) and dispatch instructions from the Supplier.
In principle however, the Supplier does not want any goods delivered by the Supplier to be returned.
Article 12 – Permits
12.1 The Contracting party is and will be responsible and liable for the timely and correct issue to the Contracting party of any permits, licences, concessions, registrations, certificates et cetera, required or that could be required to enable the Supplier to deliver to the Contracting party the goods sold to the Contracting party and/or required to enable the Contracting party to trade such goods and/or to enable the Supplier to fulfil his obligations in respect of the Contracting party in any other way.
The costs involved in obtaining and/or maintaining any such permits, licences et cetera shall be for the account of the Contracting party.
Failure of holding any required permit, licence, concessions, registrations, certificates et cetera, as referred to in this Article, shall constitute a default for which the Contracting party will be held responsible in respect of the Supplier, and shall not relieve the Contracting party from any of his obligations in respect of the Supplier, nor cause the Contracting party to suspend fulfilment of any obligation of the Contracting party in respect of the Supplier.
Further to this, the Contracting party undertakes in respect of the Supplier to timely hold any required permits, licences, concessions, registrations, certificates, et cetera, in order to be able to market the products he purchased from the Supplier.
The Contracting party hereby indemnifies the Supplier with regard to any possible claims whatsoever and caused in any way whatsoever, directly or indirectly resulting from the entire or partial failure of holding any licences, permits, concessions, registrations, certificates et cetera, required for the Contracting party to be able to market the products purchased from the Supplier, or required in order to be able to trade the products purchased from the Supplier.
12.2 The Contracting party is liable for any loss directly or indirectly caused by the entire or partial failure of holding any permit, licence et cetera as referred to in Article 12.1, and the Contracting party indemnifies the Supplier from any claims related to such a loss.
Article 13 – Titles to intellectual property
13.1 The Contracting party shall only use any software, operating instructions and any other essential documentation and other details and information supplied (in addition) by or on behalf of the Supplier for his own (internal) use, and not pass on, sell or provide it to any third parties in any manner whatsoever, or cause it to be used by any third party.
13.2 If it should unexpectedly appear that an item sold by the Supplier to the Contracting party infringes any right of industrial or intellectual property outside the Netherlands, the Contracting party shall not assert any rights and hold no claim.
Article 14 – Reservation of ownership
14.1 Without prejudice to the provisions in Article 5 of these Terms and Conditions with regard to their risk and transfer, any items supplied by or on behalf of the Supplier shall remain the Supplier’s property up to the moment of full payment of anything the Contracting party, on any account whatsoever, should be due to the Supplier, including anything the Contracting party will be due to the Supplier after the conclusion of the agreement, including any interest and costs.
In the case of a current-account relation, the Supplier holds the title to the supplied goods up to the moment at which any balance for the account of the Contracting party has been settled.
14.2 As long as pursuant to the provision in Article 14.1 the Supplier still holds the title to the goods supplied by or on behalf of the Supplier, the Contracting party undertakes to keep such goods separated from other goods in such a manner, that they can be easily and clearly recognized as the Supplier’s goods.
14.3 In the case of non-payment of any amount due and payable to the Supplier, and furthermore in the case the agreement is terminated, the Supplier shall be entitled to re-claim the goods to which the reservation of property applies, and to (cause to) take any related measures, while any paid goods shall be settled with respect to this, without prejudice to the Supplier’s right to require compensation for any loss or damage.
In the case of such non-payment or termination of the agreement, any claim held by the Supplier against the Contracting party shall be payable at once and on demand.
14.4 At the Supplier’s first request, the Contracting party must provide a power of attorney for the prompt return of the goods not paid in full, irrespective of where they should be located.
14.5 The Contracting party is entitled to sell or use goods to which the Supplier holds a reservation of property rights for the purpose of the regular business operations; however no collateral can be vested in such goods and the Contracting party shall not (cause to) carry out any actions with respect to these goods that could cause them to become a part or constituent of other goods.
In the case that goods to which the Supplier holds a reservation of property are transferred, the Contracting party undertakes to make sure that the property rights are reserved and at the Supplier’s first request to assign any claims from the Contracting party’s debtor to the Supplier up to the amount due.
Article 15 – Payment
15.1 Unless otherwise agreed, payments must be made in net amounts, cash, prior to the delivery of the purchased products without any discounts or debt settlement or through a deposit or transfer to a bank or giro account indicated by the Supplier.
15.2 Payments must be made in the currency of the agreed prices.
15.3 Each payment from the Contracting party shall first of all settle any interest due, as well as the legal and non-legal cost, as provided in these Terms and Conditions and will subsequently be deducted from the longest outstanding amount payable.
Article 16 – Default; interests and costs
16.1 The Contracting party will be in default merely through the expiry of the period in which a payment or the fulfillment of another obligation should have been made while a warning note, summons or notice of default shall not be required.
16.2 If a payment due by the Contracting party to the Supplier is not made on time, the Contracting party will, from the day on which the payment period has expired, be automatically due to the Supplier interest for delay in payment of one and a half percent (1.5%) per month, without prejudice to any other rights accruing to the Supplier at such time; with respect to the calculation of such interest for delay in payment, a month that has commenced however not ended shall apply as one entire month.
The above interest for delay in payment of 1.5% per month is a minimum interest, and in the case that this interest should, calculated on an annual basis, at any time be less than 5% higher than the official statutory interest applicable in the Netherlands, this interest for delay in payment shall automatically have increased to such an amount that, calculated on an annual basis, it will be 5% higher than the statutory interest.
16.3 Any legal and non-legal costs to be incurred, including the costs of legal aid and legal advice to be incurred by the Supplier, shall be for the account of the Contracting party.
The non-legal collection costs amount to 15% of the amount due by the Contracting party, including any interest due, without prejudice to the Supplier’s right to claim compensation from the Contracting party of the actually incurred collection costs, if these should exceed the abovementioned 15%.
Article 17 – Termination of the agreement
17.1 In the case of the Contracting party’s default, the Supplier will be entitled to cancel or dissolve the agreement without any court intervention, without prejudice to the Supplier’s right to claim damages, to use the rights resulting from reservation of property, and to take any other (legal) measures, and without prejudice to the Supplier’s right to claim fulfilment (whether or not with damages) instead of cancellation of the agreement.
17.2 The Supplier may cancel the agreement with the Contracting party as per immediately, if:
17.3 If an agreement is cancelled or dissolved pursuant to the provisions in this Article, the amounts the Contracting party is due to the Supplier at the moment of cancellation or dissolution will remain fully due, and the Contracting will be due interest and charges with respect to these amounts pursuant to the provisions in these Terms and Conditions, without prejudice to the Supplier’s right to claim damages and any other rights accruing to the Supplier.
Article 18 – Cancellation by the Contracting party
The Contracting party is entitled to cancel the assignment or the agreement in the following cases:
In the case of cancellation referred to in this Article, any damage on the part of the Contracting party shall not be paid under any circumstances.
Article 19 – Amendments to the agreement
Any amendments to an agreement are only valid if these have been drawn up in writing, and both parties have agreed to such amendment(s) in writing.
Article 20 – Headings of the Articles
The headings of the Articles of these Terms and Conditions only serve to facilitate reading and are for easy reference, however they do not convey any other meaning; in particular these titles cannot be used for the interpretation of these Terms and Conditions.
Article 21 – Applicable law; disputes
21.1 Dutch Law applies to all the offers, agreements, deliveries and services made, concluded or provided by or on behalf of the Supplier, with the exclusion of the applicability of the United Nations Treaty with regard to international purchase agreements on moveable property (Vienna Purchase Treaty).
21.2 Any disputes, including those which are considered to be a dispute by only one party, stemming from or in relation to an agreement to which these Terms and Conditions apply or to the implementation thereof, and which cannot be solved amicably, will be settled by the Court of the district where the Supplier is established as the Court of first instance, provided that if a certain Court has been designated as the competent Court by imperative law, the dispute will be settled by the designated Court as the Court of first instance, without prejudice to the Supplier’s right to levy attachments and take other preliminary actions at such location(s) and for those legal institutions where this would be advisable according to the Supplier.
21.3 The provisions in Article 21.2 do not impair the Contracted Party’s right to submit a dispute to the Court which is competent in accordance with the regular rules of competence, or to have it settled through arbitration or a binding advice.
Article 22 – Validity
In the event that any provision in these Terms and Conditions should not – either entirely or partially – be valid and/or imperative, as a result of any legal regulation, Court order, or any directive, decision, recommendation or measure of any local, regional, national or supranational authority or institution, or otherwise, then this will not in any way have any implications for the validity of the other provisions in these Terms and Conditions.
If any provision from these Terms and Conditions should not be valid for a reason referred to in the previous sentence, but would be valid if such provision’s extent or purport should be more restricted, then such a provision will be automatically effective with the most far-reaching or the most extensive more restricted extent or purport through which or in which the provision will be valid.
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