OYANA –TERMS AND CONDITIONS

Welcome to Oyana!

Our online platform (Platform) is operated by KCBM Pty Ltd t/a Oyana (ABN 22 625 547 944) or its successors and assignees (we, our or us).  It is available through our mobile application (App) and may be available through other addresses or channels, including our website.

Please read these Terms (defined below) carefully as they set out your rights and responsibilities when using our Platform. You’ll need to stop using our Platform if you do not agree to these Terms. We may vary these Terms by publishing the varied terms on our Platform. We recommend you check our Platform regularly to ensure you are aware of our current Terms.

We provide the services set out on our Platform. Our Platform allows you to access online fitness training programs from our carefully curated instructors from the health and wellness industry.

Accepting these terms

By downloading our App or otherwise accessing and/or using our Platform, you and each person using our Platform (you): (a) warrant to us that you have reviewed these terms and conditions, including our Privacy Policy (available on our Platform) (Terms) and you understand them; (b) warrant to us that you have the legal capacity to enter into a legally binding agreement with us; and (c) agree to use our Platform in accordance with these Terms.

You must be 18 years old or older to use the Platform. If you are under 18 years old, you represent and warrant that you have permission from your parent or legal guardian to access and use the Platform, and they have accepted these Terms on your behalf.

If you access or download our App from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement and any usage rules set forth in the App Store Terms of Service. If you access or download our App from the Google Play Store, and you agree to the Android, Google Inc. Terms and Conditions including the License Agreement and Terms of Application.

Collection notice

We collect personal information about you in order to enable you to access and use our Platform, to provide you with Platform settings suitable to your preferences and for other purposes set out in our Privacy Policy.

We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by Law. If you do not provide this information we may not be able to provide you with access to our Platform.  In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.

Our Privacy Policy contains further information about: (a) how we store and use your personal information; (b) how you can access and seek correction of your personal information; (c) how you can make a privacy-related complaint; and (d) our complaint handling process. 

By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

Registering

You are not required to create an account (Account) to access our Platform, however your access to the Platform’s features and functionalities will be limited.

You may register an Account on our Platform. You must provide basic information when registering for an Account, including your name and your email address.

You will be able to select a username and password for your Account.

You may also register for an Account using your Facebook or Google account (External Account). If you sign in to your Account using your External Account, you authorise us to access certain information on your External Account including but not limited to your name, your email address, your profile photo, public profile information, location and gender.

When you create an Account, you must also select a subscription plan (Subscription), being a limited subscription (Limited Subscription) or a premium subscription (Premium Subscription), each Subscription’s features and functionalities will be as further described on our Platform.

If you are an instructor, you may select this when creating an Account, and we will provide you with the ability to respond to reviews or comments on the Platform.  You agree that we will have the sole right to create and curate your instructor profile page, including details of your expertise, images and videos, biography and description of your qualifications.

You must provide accurate, current and complete information during the registration process and you must update such information to keep it current and complete.

You are responsible for keeping your Account details, your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details, whether or not you authorised such activities or actions.

You will immediately notify us of any unauthorised use of your Account. We may restrict or cancel access to your Account if we hold the reasonable view that there has been fraudulent activity or unauthorised activity on your Account.

At our sole discretion, we may refuse to allow any person to register or create an Account.

Premium Subscription

We offer tiers of Subscription, including the Limited Subscription and Premium Subscription, as described on our Platform.

Fees

We offer in-app purchases for the Premium Subscription to our Platform, which you may purchase for the advertised fee (Fee) in advance of accessing that functionality. You must pay the Fee via the payment method offered by the application store from which you download the App, such as Apple Pay for the Apple App Store or Google billing for the Google Play Store. It is your responsibility to keep your payment details up-to-date and to ensure that you have an appropriate balance available for the payment of the Fee. The Fee is non-refundable, however in our sole and absolute discretion, we may provide a refund, discount or other consideration. To the maximum extent permitted by Law, there will be no refunds for any unused features of in-app purchases (or part thereof).

We may change our Fees at any time, however such change in the Fees will not be incorporated to your Premium Subscription until your next subscription period. If you do not agree to the change in Fees, you may cancel your Premium Subscription in accordance with the cancellation clause below.

Subscription periods

You may choose between a monthly or annual Premium Subscription period. If you choose a monthly Premium Subscription period, your Subscription will renew automatically each month. If you choose an annual Premium Subscription period, your Subsctiption will renew automatically each year.

Subscription features

We may, in our absolute discretion, modify or discontinue, temporarily or permanently, the Content and features and functions included in any of our Subscriptions (Amendments). We will use our best endeavours to notify you of any Amendments with reasonable notice. To the maximum extent permitted by law, we are not liable to you for any Amendments, and you waive and release us from any such liability.You agree that if you do not agree to any Amendments, you may cancel your Account in accordance with the process set out below (Termination).

Cancellation

You may cancel your Premium Subscription at any time on the application store from which you download the App, after which your Premium Subscription will not automatically renew for the next relevant Subscription period (i.e. the next month or year). As the application store is a third party, we are unable to cancel your Premium Subscription on your behalf. Following any cancellation, you will continue to have access to the Platform until the end of your current Subscription period. After the expiry of your current Subscription period, you will no longer have access to the Content and other features available under the Premium Subscription, including any downloaded Content, and your Subscription will be automatically downgraded to a Limited Subscription.

Student promotion

If you purchase a Premium Subscription on the basis of any student promotion set out on our Platform from time to time, you agree to provide evidence of your student status, including a student email address. You agree that we may, in our absolute discretion, determine your eligibility, and the period at which you may access the Premium Subscription, under any student promotion. We reserve the right to discontinue your access to a Premium Subscription under a student promotion if you cease to be a student, or in our reasonable opinion, you are no longer a student, in which case, you agree to continue accessing our Platform on a Premium Subscription according to our then current Fee. 

Free trial

Your Premium Subscription may begin with a free trial if you are a first-time subscriber. The free trial period of your Premium Subscription will last for the period specified on the Platform. We determine free trial eligibility in our sole discretion and we may limit eligibility to prevent free trial abuse. We reserve the right to revoke the free trial and discontinue your access to a Premium Subscription at any time in the event that we determine that you are not eligible. If you do not cancel during the free trial period, we will charge your chosen payment method for the Premium Subscription you have chosen and its corresponding Fee on the day after your free trial ends.

Your on-boarding preferences

When you create an Account on our Platform, we will request certain inputs, including your preferred instructor, preferred program type (e.g. home or gym-based workouts), your goals, notification settings (including push notifications and in-app notifications), your Account options and your wish to integrate data from Third Party Inputs (including Apple Health, Google Fit and any native calendar applications). You agree that any data collected from Third Party Inputs will be collected, held, used and disclosed in accordance with our Privacy Policy.

Acceptable use of our Platform

You must access and use our Platform only for legal, authorised, and acceptable purposes. You will not use (or assist others in using) our Platform in ways that: (a) violate, misappropriate, or infringe our rights, our users’ rights, or other rights, including privacy, publicity, Intellectual Property, or other proprietary rights; (b) are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially or ethnically offensive, or instigate or encourage conduct that would be illegal or otherwise inappropriate, including promoting violent crimes; (c) involve publishing falsehoods, misrepresentations, or misleading statements; (d) impersonate someone; (e) involve sending illegal or impermissible communications, such as bulk messaging; (f) involve any non-personal use of our Platform;  (g) would violate our community guidelines (Community Guidelines), including in your use of our other pages, including third party websites and any social media page, including, but not limited to, Instagram or Facebook; (h) is an engagement in an activity (including posting any User Content, registering and/or using a username), which (1) is or includes material that  includes malicious content such as malware, trojan horses, or viruses or otherwise interferes with any user’s access to the Platform; (2) impersonates or misrepresents your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive or misleading, (3) involves the transmission of unsolicited mass mailings or other forms of span, junkmail, chain letters or similar, (4) involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, without our prior written consent, (5) links to, references, or otherwise promotes commercial products or services, without our prior written consent, (6) interferes with or in any way disrupts the Platform, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Platform or our computer systems, network, usage rules, or any of our security components, authentication measures or any other protection measures applicable to the Platform, the Content or any part thereof.

Licence to use our Platform

We grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms.  All other uses are prohibited without our prior written consent.

Information contained on our Platform

Our Platform contains materials and information for you to read, explore, and interact with, including, but not limited to, online fitness training programs (Content). The Content is not comprehensive and is for general information purposes only.  It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by Law. The Content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Prior to your use or participation in any Content, we strongly recommend you seek professional advice (including from a medical practitioner) as to the suitability of the Content in your personal circumstances. All Content relating to the use of equipment, poses and exercises and any instructions are not required to be performed or adhered to by you and are carried out, or adhered to, at your election. You acknowledge that you will participate in our Content at your own risk. You acknowledge that participating in our Content may involve a risk of serious injury or even death. It is your responsibility to ensure that by participating in our Content, you will not exceed your limits. It is your sole responsibility to determine if our Content is appropriate for your level of ability and physical or mental condition. In the use of our Content, you are not aware of any medical conditions, injuries or impairments that will be detrimental to your health. In the event that you become aware of any medical conditions, injuries or impairments that may be detrimental to your health, you must immediately cease to participate in our Content and cease use of our Platform and contact your medical practitioner.

You agree that any information, insights or guidance contained in our Platform is not an attempt to practice medicine or provide medical advice. It is not to be used or relied on for any diagnostic or treatment purposes. The Content should not be used as a substitute for professional diagnosis and treatment. Any health information on our Platform, is provided simply for your convenience. They are not intended to be advice, they are not intended to be relied upon and they are not a substitute for professional medical advice based on your personal circumstances.

Intellectual Property Rights

Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Platform and all of the Content. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable):

  • copy or use, in whole or in part, any Content;

  • reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or

  • breach any Intellectual Property Rights connected with our Platform, including (without limitation) by:

  • altering or modifying any of the Content;

  • causing any of the Content to be framed or embedded in another website; or

  • creating derivative works from the Content.

You may also provide us with feedback on the Platform (Feedback). You agree that all Intellectual Property Rights in the Feedback will at all times vest or remain vested in us. You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback. We will have no obligation to review, consider or implement Feedback.

Content you upload

We encourage you to interact with our Platform! You may be permitted to post, upload, publish, submit or transmit relevant information and content, including reviews (Reviews) (together, the User Content) on our Platform.

By making available any User Content on or through our Platform, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content.

You agree that you are solely responsible for all User Content that you make available on or through our Platform.  You represent and warrant that:

  • you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and

  • neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content, or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate another user’s rights, or a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable Law or regulation.

You may review your experience of the Platform, including the online fitness training programs of instructors and your level of enjoyment, perceived difficulty and comments. These Reviews will be visible on the instructor’s profile page and the instructor will have the ability to respond to Reviews. You agree to provide true, fair and accurate information in your Review. If we consider that the Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review.

We do not endorse or approve and are not responsible for any User Content, including Reviews. We may, at any time at our sole discretion, remove any User Content, including Reviews. You may report User Content which you believe are in breach of these Terms or our Community Guidelines and we will use our reasonable endeavours to investigate such User Content. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.

Our Platform may contain links to websites operated by third parties. Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites. You should make your own investigations with respect to the suitability of those websites. 

We may, at any time and without notice to you, discontinue our Platform, in whole or in part.  We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

Third party inputs

You agree that the provision of the Platform may interface, interoperate with, be contingent on, or impacted by, hardware, internet connection fees, equipment or third party software or services (Third Party Inputs), including Apple Health, Goole Fit, any native calendar applications, Spotify or Apple Music.

To the extent that you choose to use such Third Party Inputs, you are responsible for: (a) the purchase of the Third Party Inputs (if any); (b) the requirements; and (c) the licensing oblgiations, related to the applicable Third Party Input (if any).

You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with this clause.

 

Referral opportunity

We encourage you to refer friends to our Platform. We may, from time to time, make referral opportunities available, as described on our Platform (Referral Opportunity).

If you have an Account, by participating in a Referral Opportunity you or your referred friend may earn certain benefits, as described in the Referral Opportunity (Referral Benefits). The Referral Benefits may change from time to time, however may include, but is not limited to, the accumulation of credit points (which may allow you to redeem free products) or a discounted or free Premium Subscription to our Platform for you and/or your referred friend for a limited period of time. Referral Benefits are only redeemable for the period of time described in the Referral Opportunity.

In order to earn Referral Benefits, you will be required to (a) have an Account; (b) refer a friend; and (c) your referred friend must complete the qualifying action described in the Referral Opportunity. A qualifying action may include, but is not limited, for example, your friend signing up for an Account using your individual sign up link.  We will have sole discretion in determining whether a qualifying action has occurred.

The Referral Opporunity is subject to the terms and conditions set out and displayed on the Platform or otherwise communicated to you. We do not make any representations, warranties or guarantees that any Referral Opportunity will be fit for any particular purpose, will achieve any specified result, or will provide any benefit.

You agree that Referral Benefits may be supplied by third parties and we do not provide any warranties, guarantees or representations in relation to such Referral Benefits. To the maximum extent permitted by law, we are not responsible, and you waive and release us from any liability, as to any Referral Benefits (which may include the provision of products and services) from third parties.

Notice regarding Apple

  • To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for our Platform and any content available on our Platform.

  • Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.

  • If our App fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of our App to you. To the maximum extent permitted by applicable Law, Apple will have no other warranty obligation whatsoever with respect to our App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.

  • Apple is not responsible for addressing any claims by you or any third party relating to our App or your use of our App, including but not limited to:

    • product liability claims;

    • any claim that our App fails to conform to any applicable legal or regulatory requirement; and

    • claims arising under consumer protection or similar legislation.

  • Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our App infringes that third party’s Intellectual Property Rights.

  • You agree to comply with any applicable third-party terms when using our App.

  • Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

  • You hereby represent and warrant that:

    • 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

    • you are not listed on any U.S. Government list of prohibited or restricted parties.

Warranties, disclaimers and indemnity

To the extent permitted by Law, we make no representations or warranties about our Platform or the Content, including (without limitation) that:

  • they are complete, useful, accurate, reliable, up-to-date and suitable for any particular purpose;

  • access will be uninterrupted, error-free and free from viruses, worms, trojans, malware or any other defect; and

  • our Platform will be secure.

You read, use, and act on our Platform and the Content at your own risk. We are not responsible for and are not obligated to control the actions or information (including User Content) of other users or other third parties. You release us and our subsidiaries and affiliates and our or their directors, contractors or service providers (including any instructor), officers, employees, partners and agents from any claim, complaint, cause of action or controversy and damages, known or unknown relating to, arising out of, or in any way connected with any such claim you have against third parties.

Despite anything to the contrary, to the maximum extent permitted by Law:

  • our maximum aggregate Liability arising from or in connection with these Terms (including the services we provide and/or the subject matter of these Terms) will be limited to, and must not exceed the aggregate amount of fees paid by you to us during the three-month period immediately preceding the event that gave rise to the Liability or $100 if no such fees have been paid; and

  • we will not be liable to you for any consequential loss, indirect loss, loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,

whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Despite anything to the contrary, to the maximum extent permitted by Law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any: 

  • participation in any of our online fitness training programs and/or following the tips contained within;

  • event or circumstance beyond our reasonable control;

  • acts or omissions of you or your personnel;

  • defect, error, omission, lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit), inaccessibility of, interruption or outage with respect to our Platform;

  • use of our Platform and/or Content;

  • User Content;

  • carriers being inaccessible;

  • interaction you have with other users whether in person or online;

  • injury or loss to any person;

  • Content which is incorrect, incomplete or out-of-date; or

  • breach of these Terms or any Law.

You agree that, to the maximum extent permitted by Law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

To the maximum extent permitted by Law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with your use of our Platform or any breach of these Terms or any applicable Laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.             

Australian Consumer Law

Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of our Platform by us to you which cannot be excluded, restricted or modified (Statutory Rights).

If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for our Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. 

Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including our Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

This clause will survive the termination or expiry of these Terms.

Termination

  • If you delete our App from your device, your Account will remain active. 

  • You may cancel your Account and terminate these Terms at any time on the application store from which you download the App .

  • We may terminate these Terms for convenience at any time by giving you 30 days’ notice via email to the email address in your Account.

  • At our sole discretion, we may suspend your Account or terminate these Terms immediately without notice if you are in breach of these Terms, our Community Guidelines, any applicable Laws, regulations or third party rights or we receive complaints about you or your behaviour.

In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet (which may include by video conference or an online or telephone meeting) at least once to attempt to resolve the Dispute in good faith.  All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The cost of the mediation will be shared equally between the parties. If the parties do not resolve the Dispute, within 21 days after mediation, the Dispute may be referred by either party (by notice in writing to the other party) to litigation.

Variation

We may update these Terms by providing 30 days’ written notice to you. You agree that if you do not agree to any update in these Terms, you may cancel your Account in accordance with the process set out above (Termination).

Assignment

You may not assign, transfer or delegate these Terms and your rights and obligations under the Terms without our prior written consent. We may without restriction assign, transfer or delegate these Terms and any rights and obligations under these Terms, at our sole discretion, with 30 days prior notice. Your right to terminate these Terms, in accordance with these Terms, remains unaffected. 

Severance

If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Jurisdiction

Your use of our Platform and these Terms are governed by the Laws of Victoria. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

Our Platform may be accessed throughout Australia and overseas. We make no representation that our Platform complies with the Laws (including Intellectual Property Laws) of any country outside Australia.  If you access our Platform from outside Australia, you do so at your own risk and are responsible for complying with the Laws of the jurisdiction where you access our Platform.

Definitions

Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant party in connection with these Terms or the provision of our Platform.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

For any questions and notices, please contact us at:

KCBM Pty Ltd t/a Oyana ABN 22 625 547 944

Email: support@oyana.com.au

Last update: 13 November 2019

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