KLIPSCH CONNECT MOBILE END USER LICENSE AGREEMENT (iOS)

IMPORTANT:

BY ACCEPTING THIS AGREEMENT, OR OTHERWISE ACCESSING OR USING THE APP, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT.

IF YOU ACCESS OR USE THE APP, YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

THIS AGREEMENT CONTAINS TERMS AND CONDITIONS THAT REQUIRE YOU AND KLIPSCH TO RESOLVE ANY DISPUTES ARISING FROM THIS AGREEMENT THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE REVIEW THE ARBITRATION SECTION BELOW SINCE YOU ARE GIVING UP CERTAIN RIGHTS, SUCH AS THE RIGHT TO A JURY TRIAL AND THE RIGHT TO SUE KLIPSCH IN A CLASS ACTION LAWSUIT.

This End User License Agreement ("Agreement") is a binding agreement between Klipsch Group, Inc. ("Klipsch") and you (“You” or "Your") and provides the terms and conditions under which You may access, download and use the Klipsch Connect mobile application on an Apple-brand mobile device or product (the application, including any updates or upgrades, and all related documentation, is collectively the "App"). The App is licensed, not sold, to You.

ACKNOWLEDGEMENT. You acknowledge that this Agreement is between Klipsch and You only, and not with Apple, and that Klipsch, not Apple, is solely responsible for the App and the content thereof.
LICENSE GRANT. Subject to the terms of this Agreement, Klipsch grants You a limited, non-exclusive, and nontransferable license to download, install, and use the App for Your personal, non-commercial use on a single Apple-branded mobile device owned or otherwise controlled by You ("Device") strictly in accordance with the App's documentation, and as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service, except that the App may be accessed and used by other accounts associated with You via Family Sharing or volume purchasing.
RESTRICTIONS. You shall not:
1. copy the App, except as expressly permitted by this license;
2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time
6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App; or
7. use the App in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States of America or other countries).
UPDATES AND MAINTENANCE. Klipsch is solely responsible for providing any maintenance and support services with respect to the App as set forth in this Agreement, or as required under applicable law. You and Klipsch both acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. Klipsch may provide updates, bug fixes, enhancements or other upgrades to the App to its customer base at no additional cost. You must maintain the latest version of the App made available by Klipsch. Klipsch is not obligated to provide support or other services in the event You are not using the most up-to-date version of the App.
INTELLECTUAL PROPERTY. As between the parties, Klipsch is the sole and exclusive owner of all right, title and interest in and to the App, or has all rights necessary to grant You the licenses provided in this Agreement. Nothing in this Agreement transfers any ownership rights or interest in or to the App to You or to any other third party. As between the parties, any improvements, derivative works, enhancements or modifications in or to the App is the sole and exclusive property of Klipsch, regardless of when created or by whom. You hereby assign to Klipsch any feedback, ideas or comments about the App without further compensation or attribution. Klipsch reserves all rights not expressly granted to You in this Agreement.
INFRINGEMENT. In the event of a third party claim that the App or Your possession or use of the App infringes that third party's intellectual property rights, Klipsch, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims. All notices of copyright infringement claims should be sent to the copyright agent designated in Klipsch's Copyright Policy in the manner and by the means set forth therein.
CONTENT & WEBSITE. The App may provide You with access to certain services, features, functionality, data and content accessible on or through the App (collectively, "App Content"). Your access to and use of such App Content and the App are also governed by the Klipsch Connect App Terms of Use located at https://www.klipsch.com/klipsch-connect-terms-of-use ("Terms of Use"), which is incorporated herein by this reference. If You do not agree to the Terms of Use, You are prohibited from downloading or using the App. If You are using the Klipsch website, Klipsch's Website Terms of Use and Website Privacy Policy will apply.
PRIVACY POLICY. When You use the App, Klipsch will collect, use and share personal information as described in Klipsch Connect App Privacy Policy ("Privacy Policy"), which is incorporated into this Agreement. If You do not agree to any terms in the Privacy Policy, do not use this App or provide Klipsch Your personal information.
THIRD PARTY PRODUCTS AND SERVICES.
1. Third Party Terms of Agreement. You must comply with applicable third party terms of agreement when using the App. You are solely responsible for message, data usage, internet connection, airtime charges, or other third party fees associated with Your use of the App.
2. Products & Services. You are solely responsible for procuring, at Your own cost, the Klipsch-brand headphones, sound bar and other similar products (individually and collectively, "Products"), and any connections and third party services that You need to access and use the App (i.e. internet connections). Klipsch does not guarantee that the App is accessible on any particular equipment or device or with any particular software, internet, mobile or service plan. Operation of the App may be limited or restricted depending on the capabilities, bandwidth or technical limitations of Your Internet connection and service. The provision, quality and security of such Internet connectivity are the sole responsibility of the third party providing such service.
3. Third Party Software. You acknowledge that the App may include components that are developed by third parties ("Third Party Software"). Certain Third Party Software may be open source code, free code, community source code or similar software, including any libraries or software licensed under the General Public License or any other license agreement or arrangement obliging developers to make source or object code available to third parties. ("Open Source Components"). If and to the extent disclosure is required, the App contains the following Open Source Components:
  1. RxSwift
    https://github.com/ReactiveX/RxSwift/blob/master/LICENSE.md
  2. RxCocoa
    https://github.com/ReactiveX/RxSwift/blob/master/LICENSE.md
  3. RxSwiftExt
    https://github.com/RxSwiftCommunity/RxSwiftExt/blob/master/LICENSE
  4. RxDataSources
    https://github.com/RxSwiftCommunity/RxDataSources/blob/master/LICENSE.md
  5. RxReachability 0.1.5
    https://github.com/RxSwiftCommunity/RxReachability/blob/master/LICENSE
  6. RxBluetoothKit 5.1.4
    https://github.com/Polidea/RxBluetoothKit/blob/master/LICENSE
  7. RxCoreLocation 1.3.1
    https://github.com/RxSwiftCommunity/RxCoreLocation/blob/master/LICENSE
  8. RxRealm 0.7.6
    https://github.com/RxSwiftCommunity/RxRealm/blob/master/LICENSE
  9. Action 3.9.1
    https://github.com/RxSwiftCommunity/Action/blob/master/License.md
  10. RealmSwift 3.11.1
    https://github.com/realm/realm-cocoa/blob/master/LICENSE
  11. SwiftyJSON 4.2.0
    https://github.com/SwiftyJSON/SwiftyJSON/blob/master/LICENSE

This list may be updated from time to time at Klipsch's sole discretion. Third Party Software may be subject to separate license terms and conditions that are subject to change at any time by the applicable third party licensor. To the extent required by the licenses covering Third Party Software, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement with respect to such Third Party Software; such restrictions will not apply to such Third Party Software. To the extent the terms of the licenses applicable to Open Source Components require Klipsch to make an offer to provide source code in connection with the App, such offer is hereby made.

TERM AND TERMINATION. This Agreement will be effective upon Your acceptance or first use of the App and will continue until terminated. You may terminate this Agreement by deleting the App and all copies thereof from Your Device. Klipsch may terminate this Agreement at any time, for any reason or no reason, in Klipsch’s sole discretion. Without limiting Klipsch’s right to terminate this Agreement, Klipsch may also suspend Your access to the App, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct inappropriate or detrimental to the App or to Klipsch. Should You return your Device to its place of purchase, sell or otherwise transfer your Device, or if this Agreement is terminated, You are responsible for and must uninstall the App from the Device and delete all accounts You may have established on the Device or that are accessible through the App.
NON-US USERS. You acknowledge that You may not be able to access all or some of the App Content outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If You access the App or App Content from outside the United States, You are responsible for compliance with local laws.
WARRANTIES AND DISCLAIMER.
1. Warranties by You. You hereby represent, warrant, and covenant for the benefit of Klipsch that You have the legal right and authority to enter into this Agreement. You further represent, warrant and covenant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You not listed on any U.S. Government list of prohibited or restricted parties.
Disclaimer. YOUR USE OF THE APP, APP CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP IS AT YOUR SOLE RISK. THE APP (INCLUDING ALL APP CONTENT) IS PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND KLIPSCH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE APP, APP CONTENT AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KLIPSCH, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF KLIPSCH. KLIPSCH DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES ABOUT THE DATA AND INFORMATION MADE AVAILABLE IN THE APP, INCLUDING BUT NOT LIMITED TO REGARDING ITS ACCURACY, USEFULNESS OR AVAILABILITY,
INDEMNITY. YOU HEREBY INDEMNIFY, DEFEND, AND HOLD HARMLESS KLIPSCH AND ITS RESPECTIVE PARENT, AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, SERVICE PROVIDERS, AGENTS, CONTRACTORS, ASSIGNS, LICENSEES, AND SUCCESSORS IN INTEREST (COLLECTIVELY, “KLIPSCH PARTIES”) FROM ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, FEES, EXPENSES, AND COSTS (INCLUDING ATTORNEYS' FEES, COURT COSTS, DAMAGE AWARDS, AND SETTLEMENT AMOUNTS) THAT RESULT FROM ANY CLAIM OR ALLEGATION AGAINST ANY KLIPSCH PARTY ARISING FROM (1) ANY ACTUAL OR ALLEGED VIOLATION OF ANY LAWS, RULES, REGULATIONS, OR ORDINANCES; (2) ANY ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT, OR THE TERMS OF USE OR THE PRIVACY POLICY; (3) YOUR ACCESS TO OR USE OF THE APP OR ANY APP CONTENT, WHETHER OR NOT IN BREACH OF THIS AGREEMENT; OR (4) YOUR INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS. KLIPSCH WILL PROVIDE YOU WITH NOTICE OF ANY SUCH CLAIM OR ALLEGATION, AND KLIPSCH PARTIES WILL HAVE THE RIGHT TO PARTICIPATE IN THE DEFENSE OF ANY SUCH CLAIM AT ITS EXPENSE.
LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KLIPSCH OR KLIPSCH PARTIES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APP, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE APP OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND REGARDLESS OF THE FORM OF ACTION, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
AGREEMENT TO ARBITRATE. BOTH PARTIES AGREE TO RESOLVE ANY DISPUTES ARISING UNDER This AGREEMENT OR RELATING TO THE APP THROUGH BINDING ARBITRATION, ON AN INDIVIDUAL BASIS, AS SET FORTH BELOW.
1. Waiver. YOU UNDERSTAND THAT BY AGREEING TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS, (I) YOU ARE GIVING UP YOUR RIGHT TO A TRIAL BY JURY AND (II) YOU MAY NOT BRING A CLAIM AGAINST KLIPSCH IN A CLASS ACTION LAWSUIT, AND THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN ONE OR MORE PARTY’S CLAIMS IN A CLASS OR PROCEEDING. In the event a court determines that the foregoing is unenforceable, then such claim must be severed from the arbitration and brought in court, subject to Klipsch's right to appeal.
Good Faith Discussions. You and Klipsch must first attempt to resolve any dispute by good faith discussions or email. If the parties cannot resolve a dispute with good faith discussions, then either party may submit the dispute to binding arbitration as set forth in this Agreement.
Rules. You and Klipsch agree that arbitration will be conducted by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules, then in effect and as amended herein (the “Rules”). The Rules can be found at https://www.adr.org/Rules. You and Klipsch agree that this agreement to arbitrate involves a transaction of interstate commerce and therefore the Federal Arbitration Act will govern the interpretation and enforceability of this agreement to arbitrate.
Initiating a Claim. The party desiring to initiate arbitration must provide the other party a Demand for Arbitration in accordance with the Rules and the parties will thereafter mutually agree upon the arbitrator. If the parties cannot agree upon the arbitrator within ten (10) days, an arbitrator will be appointed in accordance with the Rules.
Arbitrator. Arbitration shall be before one (1) arbitrator who shall have exclusive authority to resolve any disputes arising under the Agreement or with regard to the App, including as to the enforceability and/or formation of this agreement to arbitrate made between you and Klipsch.
Location. You agree that arbitration shall take place exclusively in the City of Indianapolis and County of Marion, State of Indiana, U.S.A. However, where the disclosed claims or counterclaims do not exceed $25,000, the dispute may be resolved by the submission of documents only/desk arbitration (see the Rules for more details). Either party may, however, ask for a hearing, or the arbitrator may decide a hearing is necessary.
Confidentiality. The arbitration and information disclosed during arbitration may not be disclosed to any third-party except as required by law. The parties will not make any comments or announcements to the public about the subject matter or outcome of any arbitration.
The Arbitrator’s Decision. The arbitrator’s decisions and judgement will be final and binding on the parties, but will have no precedential effect. The arbitrator shall not have the authority to award damages outside of those set forth in the Agreement.
Costs & Expenses. Each party shall pay their own expenses and fees, including their own attorneys’ fees, arising from arbitration, unless the arbitrator determines that Your claims were improper or frivolous, in which case the arbitrator may require You to reimburse Klipsch for certain fees and expenses in accordance with the Rules.
Exceptions. Notwithstanding anything to the contrary in this Section, You and Klipsch each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of intellectual property rights.
Dispute Resolution Only in the Event of a Ruling that Arbitration is Prohibited by Law. In the event a court with appropriate jurisdiction determines that applicable law prohibits arbitration of disputes arising out of, or related to the Agreement or the App, all suits, actions or proceedings shall be instituted exclusively in the federal courts of the United States or the courts of the State of Indiana in each case located in the City of Indianapolis and County of Marion, U.S.A. although Klipsch retains the right to bring any suit, action or proceeding against You for breach of the Agreement in your country of residence or any other relevant country. You waive all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
Limitation On Time To File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
GOVERNING LAW. All matters relating to the this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of laws provision or rule (whether of the State of Indiana or any other jurisdiction). Furthermore, this Agreement will not be governed or interpreted in any way by referring to any law based on Uniform Computer Information Transactions Act (UCITA), any other act derived from or related to UCITA.
COMPLIANCE WITH LAWS. You will comply with all applicable laws, regulations, and policies of all relevant jurisdictions, including all applicable rules regarding online and mobile app conduct. You shall comply with all export laws of the United States and other applicable trade control laws and regulations with regard to the exportation of the App, its contents and the data therein. You shall not export or re export the App to any United States embargoed country or to anyone on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Persons List or Entity List.
THIRD PARTY BENEFICIARIES. APPLE AND APPLE’S SUBSIDIARIES, ARE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, AND UPON THE EFFECTIVE DATE, APPLE WILL HAVE THE RIGHT (AND WILL BE DEEMED TO HAVE ACCEPTED THE RIGHT) TO ENFORCE THIS AGAINST YOU AS A THIRD PARTY BENEFICIARY OF THIS AGREEMENT. Otherwise, this Agreement does not confer any rights, remedies, or benefits upon any person other than you and Klipsch, and Klipsch's affiliates, subsidiaries, service providers and licensees.
ASSIGNMENT. The Agreement may not be assigned by You without Klipsch's prior written consent, which may not be unreasonably withheld. Any assignment in violation of this provision is void. Klipsch may assign, in whole or in part, this Agreement without consent.
SURVIVAL; WAIVER; SEVERABILITY. All provisions of this App that by their nature are intended to extend beyond the termination or expiration of this App for any reason shall survive the termination or expiration of this App. Waivers of rights, obligations, or breaches may only occur in a signed writing by the waiving party. If any one or more of the provisions or portions of the provisions of this App are deemed by any court or quasi-judicial authority to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions or portions of provisions contained in this App will not in any way be affected or impaired thereby.
MODIFICATION. Klipsch reserves the right, at any time, to modify the functionality of the App, App Content, or the terms of this Agreement by making such modification available on the App or by providing other notice to You. Any modification will be effective immediately upon posting on the App or such other notice. Klipsch will endeavor to post material modification conspicuously. If You do not approve of any such modification, You may terminate this Agreement at any time as set forth in Section 8 above. If You do not terminate this Agreement, You will be deemed to have agreed to such modifications through Your continued use of the App.
ENTIRE AGREEMENT. This Agreement, along with the Terms of Use, the Privacy Policy, and the Copyright Policy and any terms found within the App are the complete and exclusive understanding and agreement regarding the App, and supersedes any oral or written proposal, agreement or other communication between Klipsch and You, regarding Your access to and use of the App. In the event of conflict, those documents shall control in the following order: the Privacy Policy, the Copyright Policy, any terms throughout the App, this Agreement, and Terms of Use.
CONTACT. Any questions, complaints, claims, or support issues with respect to the App should be directed to Klipsch at the address below and not to Apple.

You understand and agree that this Agreement is solely between You and Klipsch, and apple is not responsible or liable for the App or the App content, OR FOR ADDRESSING ANY CLAIMS RELATING TO YOUR USE OR POSSESSION OF THE APP OR THE SERVICES, INCLUDING BUT NOT LIMITED TO (I) PRODUCT LIABILITY CLAIMS, (II) ANY CLAIM THAT THE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, OR (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

In the event the App fails to conform to any applicable warranty, You may notify Apple and Apple will refund any purchase price, if applicable, for the App. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App and Apple has no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.

WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL KLIPSCH'S OR KLIPSCH PARTIES' LIABILITY TO YOU IN THE AGGREGATE ARISING OUT OF OR IN CONNECTION WITH THE APP, OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE APP EXCEED $100 U.S.D., EVEN IF ANY REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE.

YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP ACCESSING AND USING THE APP.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Klipsch Group, Inc.,3502 Woodview Trace, Suite 200, Indianapolis, Indiana 46268.

All other feedback, comments, requests for technical support and other communications relating to the App should be directed to web-support@klipschgroupinc.com.

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