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GRAPEFLIX, INC.
MEMBERSHIP AGREEMENT
Last updated: January 23, 2008
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| Grapeflix, Inc., a California corporation ("Grapeflix,"
"we," "us," "our") welcomes you. The use of Grapeflix Web site, currently located at www.grapeflix.com (the "Site") and the services offered on and through the Site (such services and the Site shall collectively be referred to as the "Service") is subject to the terms and conditions of this membership agreement (the "Agreement"). "You" or "Your" means an individual or entity to whom Grapeflix has given the rights to use the Service pursuant to the terms of this Agreement. Grapeflix grants You the rights to use the Service described herein in consideration of Your acceptance of the terms and conditions of this Agreement. IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "I ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS AND CONDITIONS OR OTHERWISE DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST CLICK THE "I DO NOT ACCEPT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SERVICE. If You are using the Service on behalf of Your company or organization (collectively "Company"), You represent that (a) You are duly authorized to represent Your Company and (b) You accept the terms and conditions of this Agreement on behalf of Your Company. The Service is protected by copyright and other applicable law. Any use of the Service other than as authorized under this Agreement is prohibited. |
1. Description of the Service. Grapeflix provides an online platform that enables content providers to open and control their own space within the Site, to which they can upload works of authorship (including, but not limited to, videos, audio materials, screen plays, trailers, printed matter, images, URL's, website links, closed captioning, music, pre-roll advertisements, reviews, comments, and related information (collectively, "Content")), and allow
Grapeflix to grant access to such Content to
registered users. As a Content provider, You have
"pricing freedom," i.e., You can have Grapeflix
make Your Content available for free or for a fee.
In addition, Content providers may pair with other Content providers (advertisers) through Grapeflix's auction system and, in return for compensation, show a short advertisement (pre-roll) before the main video is shown to their viewers. Grapeflix also allows registered users to create individual links to the content of some Content Owners registered with Grapeflix (called Referral Links) and to receive referral fees from sales originating from such links.
2. Changes to The Service and this Agreement. Grapeflix reserves the right to modify, discontinue, temporarily or permanently, the Service and other offerings at any time without notice. You agree that Grapeflix shall not be liable to You or any third party for any modification, suspension or discontinuance of the Service (or any portion thereof). Furthermore, You understand, acknowledge, and agree that Grapeflix reserves the right to make, at its sole discretion, additions, deletions, changes and any other modifications (collectively, "Amendments") to this Agreement, at any time without notice, by posting the Amendments on the Site. Any such Amendments shall be effective immediately upon posting or at such other date and/or time as may be determined by Grapeflix. You can review the most current version of this Agreement at any time at: link. You will be able to determine if any Amendments have been made since your previous use of the Service by viewing the "Last Updated" information that appears at the top of this Agreement. It is Your responsibility to review the most current version of this Agreement prior to each use of the Service, and You fully agree to be bound by all of the terms and conditions of this Agreement and its Amendments.
3. Participation Restrictions. You may not use the Service (and therefore may not submit, upload, or download, any information or materials to or from the Service) if You are (i) under the age of 18 (except that You may use the Service if You are a minor between the ages of 13 and 18 and have been authorized and registered by Your parent or legal guardian to use the Service as a sub-user of his/her Grapeflix account, provided that Your parent or legal guardian registers as the primary account holder and assumes all liabilities resulting from Your use of the Service), (ii) not able to legally form binding contracts, or (iii) temporarily or indefinitely suspended from the Service. In the event that Grapeflix discovers that You fit into one or more of these categories, Grapeflix reserves the right to discontinue Your use of the Service and/or suspend or cancel Your account. Grapeflix furthers reserves the right to refuse, cancel, or suspend permission for use of the Service to any Content provider or other users at any time in Grapeflix's sole discretion, including without limitation, in such instances wherein Grapeflix believes that You are or might be engaged in any form of fraudulent, illegal, or otherwise improper activity regarding the Service. Multiple accounts held by one person are subject to immediate termination at Grapeflix's sole discretion unless expressly authorized in writing (including by electronic mail) by Grapeflix.
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4. Registration; Member
Account.
Registration. When registering to Grapeflix You agree to provide true, accurate, current and complete information about yourself as prompted during the registration process. You further agree to maintain and promptly update such information to keep it true, accurate, current and complete. Your registration to the Service will not be completed until Grapeflix has verified the authenticity of the email address that You provided. For such verification Grapeflix will send an email message to the email address You provided, which will require You to click on a link (or paste the link to a browser) that will enable You to confirm Your registration. Upon completing the registration to the Service, You will receive a password and account designation, as well as a personal Grapeflix electronic mailbox, which You may use to send messages to, and/or receive message from, other registered users (and if, at any time, you choose to register sub-users with Your account, each such sub-user will receive a separate login name, password, and Grapeflix mailbox which will be used by the sub-user when using Your account). During the registration process, and at any time thereafter, You will be able to ask that messages sent to You by other registered users will be forwarded to Your private email address. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under Your password and/or account. You agree to (a) immediately notify Grapeflix of any unauthorized use of Your account or any other breach of security, and (b) ensure that Your exit from Your account at the end of each session. Grapeflix cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section 4.
Your Account. Your account will be used to show the
balance of any fees charged to Your account and
any proceeds (including Producer Share) credited
to Your account by Grapeflix, in accordance with
Section 10 and the other terms and conditions of
this Agreement. Fees You incur will be charged
against Your Available Balance, as defined hereinafter). To the extent no positive Available Balance is available in Your account, any unpaid fees will be accrued (Your ""Unpaid Items"") up to a certain limit which Grapeflix determines and may change at any time in its sole discretion (Your ""Spending Limit""). At the end of each calendar month (or at any other time as Grapeflix may elect in its sole discretion, upon providing notice to You) and at any time when Your Unpaid Items exceed Your Spending Limit, Your credit card will automatically be charged for the total of Your outstanding Unpaid Items. Each time Your credit card is charged, a credit card transaction fee in the amount of $0.40 plus 2.8% of the transaction amount will be imposed and added to the charge. Such fee may be adjusted by Grapeflix, in its sole discretion, to reflect changes in applicable fees charged by banks, payment gateway providers, and/or credit card companies. You expressly authorize Grapeflix and its designated credit card processing agents to verify the validity of your credit card and ascertain that it can accept charges related to your account activity up to your Spending Limit at any time after your credit card information is communicated to Grapeflix.
Proceeds that are credited to Your account will not be available for withdrawal until such amounts have been Cleared (Your
"Not-Yet-Available Balance" or "NYA Balance"). Any amount in Your NYA Balance that is Cleared will then form part of your Available Balance ("A
Balance"), and, unless such amount was paid to you as compensation for taking a Survey on Grapeflix, that amount shall be part of the A Balance that can be made available for withdrawal (Your "Available
for Withdrawal Balance or AW Balance"). As used herein, an amount will be deemed "Cleared" when it may no longer be disputed or subject to potential claims for refund, return, or the like, in accordance with applicable standards, customs, or practices (in Grapeflix's sole discretion). Any amounts in Your NYA Balance or A Balance that become subject to a refund or are otherwise reversed, will be deducted from Your NYA Balance or A Balance, respectively.
You may withdraw Your AW Balance by sending a written notification to Grapeflix in accordance with Section 23 (Notices) below. Grapeflix will disburse such amounts to You either by sending You a check or using a third party service (such as PayPal), in Grapeflix's sole discretion. To the extent any processing fees are collected by such services, such fees will be deducted from the amount transferred to You. In no event, however, shall You be entitled to withdraw and shall Grapeflix be required to make payments for any AW Balance in an amount less than ten dollars (U.S. $10). Grapeflix reserves the right to freeze any Producer Share or any other proceeds that You may be entitled to with respect to any Content that, in Grapeflix's sole discretion, is not in compliance with Sections 8 and 9 hereunder, until the dispute regarding such proceeds is resolved.
Reports. Grapeflix will make available to You, via Your account, reports containing billing information, information regarding the volume of data You transmitted through or stored on the Service and other users' view or downloads of Your Content, and certain other statistical data (the "Reports"). You acknowledge and agree that while Grapeflix uses commercially reasonable efforts to maintain the Reports accurately, Grapeflix cannot guarantee that such Reports do not contain any inaccuracies, omissions, or errors, and Grapeflix shall not be liable for any damage or loss that You suffer as a result of such inaccuracy, omission or error. |
5. License. You hereby grant and agree to grant to Grapeflix an unlimited, non-exclusive, worldwide, royalty-free right and license to: (i) use, display (publicly or otherwise), reproduce, and distribute all Content provided by You to the Service ("Your
Content"), or any portion or excerpts thereof or any information generated by or on behalf of Grapeflix with respect thereto, for any purpose relating to the Service; (ii) encode, compress, encrypt, or otherwise convert Your Content (or any portion or excerpts thereof) to .wmv, .wma, HTML or any other format in accordance with this Section 5; (iii) allow other users of the Service to access, use and download Your Content through any technology now known or hereafter developed; and (iv) reproduce, display, distribute, and otherwise use Your name, logo, and additional credit materials (the "Source
Information") on the Site and elsewhere in conjunction with performing the Service and advertising and promoting the Service (including without limitation presentations, marketing materials, and customer lists). If this Agreement is terminated, Grapeflix may continue to use Your Content and Source Information "online" for no more than sixty (60) business days or in printed (versus "online") materials that are in existence as of the date of termination until such materials are depleted or are redesigned. Other than for the purposes described above, any further use of material will not be allowed without express permission from You. Grapeflix acquires no title, interest, or rights in and to Your Content, except as expressly provided in this Agreement. Grapeflix shall have the sole right to determine the placement and location of Source Information Your Content on the Site and/or Service. Grapeflix may, at its sole discretion, remove or suspend any Source Information Your Content (or any portions thereof) from the Service at any time if Grapeflix believes that such material is outdated, inaccurate, infringes the intellectual property rights or any other rights of any third party, obscene, defamatory or libelous, or otherwise illegal, or is no longer of interest to other users of the Service, or for any other reason, or for no reason whatsoever. Grapeflix shall have no obligation, and shall not be liable for any failure, to use, display, distribute, or otherwise promote all or any part of Your Content and Source Information, and such failure shall not be deemed a breach of this Agreement.
6. Proprietary Rights. This Agreement, the Site, the Content, and any other material on the Site ("Works") are owned and controlled by Grapeflix, its affiliates, other parties that have licensed to Grapeflix the right to use their material, and other users of the Site, and are protected by U.S. and international copyright and other laws. Some of the names, characters, logos, trademarks, service marks, or other images displayed on the Site ("Trademarks") are the registered and unregistered trademarks of Grapeflix or other parties and are protected by trademark and other laws. You acknowledge that these rights are valid and enforceable. Except as explicitly permitted, on a case-by-case and use-by-use basis, by the respective owner of the Works and Trademarks (collectively, the "Materials"), You may not copy, modify, reproduce, republish, upload, post, display, perform, transmit, broadcast, or distribute the Site or any of the Materials available on or through the Site. Nothing contained in this Agreement shall purport to convey any ownership or other rights with respect to the Materials, and You acknowledge that by using the Site or Materials You do not acquire any ownership or other rights with respect thereto. You hereby covenant that You will not "steal" or otherwise copy, modify, distribute, or misappropriate, in whole or in part, any of the Materials contained on the Site and/or the "platform" or methods that Grapeflix uses to offer and perform its service, including without limitation, via electronic means (such as "spiders" or other electronic information-gathering processes).
7. Confidentiality. Unless Grapeflix expressly agrees otherwise, You agree to hold Grapeflix Confidential Information in strict confidence and not to disclose, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of such information, or use such information for any purposes whatsoever other than as necessary in order to fulfill Your obligations or exercise Your rights under this Agreement. "Grapeflix
Confidential Information" includes, without limitation: (i) all Grapeflix software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Service; (ii) any click-through rates, financial information (including pricing), business information, including operations, planning, marketing interests, products, and any other reporting information (including revenues, if any, paid to You by Grapeflix) provided by Grapeflix; and (iii) any other information designated (in writing, orally or in any other form) by Grapeflix, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary. Grapeflix Confidential information does not include information that (a) has become publicly known through no breach by You, (b) was known by You at or before the time such information was received from Grapeflix, as evidenced by Your tangible (including written or electronic) records, (c) has been independently developed without access to Grapeflix Confidential Information and without breach of this Agreement, as evidenced by Your contemporaneous tangible (including written or electronic) records; (d) has been rightfully received by You from a third party that is not under an obligation of confidentiality with respect to such information; or (e) required to be disclosed by law or by a governmental authority.
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8. No Offensive
Content or Pornography. You agree that any and all of
Your Content or other materials You cause to be
listed on or otherwise transmitted to the Service:
(a) shall violate no laws; (b) shall not be
pornographic; and (c) shall not be otherwise
objectionable, defamatory, libelous, or offensive
with respect to applicable standards, customs, or
practices. If there is any dispute in any of these
regards, the determination made by Grapeflix shall
be final, conclusive, and binding. Grapeflix may
remove material from the Service at any time, and
reserves the right from time to time to make and
revise guidelines relating to the listing of
material and the content of such material using
the Service.
Grapeflix works to maintain a
healthy and vibrant community. Please alert us
with respect to any pornographic, obscene or
offensive content available on the Site, though
the Report Abuse Form, so that we can investigate, take
action against offenders, and report illegal
activity to authorities. Without limiting other
remedies, we may limit, suspend, or terminate our
service and user accounts, prohibit access to our
website, remove hosted content, and take technical
and legal steps to keep users off the Site if we
think that they are creating problems, possible
legal liabilities, or acting inconsistently with
this Agreement or with the spirit of the
Service.
9. Your Representations and Warranties. You represent
and warrant to Grapeflix that: (a) You possess the
legal right and ability to enter into this
Agreement; (b) You are 18 years of age or above,
or if You are a minor between the ages of 13 and
18, You are supervised by Your parent or legal
guardian who is the primary holder of the
Grapeflix account; (c) the information You provide
with respect to Your Content is true and correct
to the best of Your knowledge; (d) You accept
strict responsibility for the accuracy and
integrity of any factual assertions You make in
connection with Your Content, which You upload,
list, or otherwise communicate on or in connection
with the Service; (e) Your Content which You elect
to list, communicate, or otherwise forward to
Grapeflix or any other person or entity, in
connection with the Service: (i) is Your original
and novel work (or You otherwise have all
necessary rights to make Your Content available
for inclusion in the Service, and the advertising,
marketing and promotion thereof), and no other
persons have any rights or interests therein or
thereto that would be inconsistent with this
Agreement, (ii) are not in the public domain,
(iii) do not and will not infringe on or
misappropriate any copyrights, trademarks, trade
secrets, patents, other intellectual property
rights, privacy rights, publicity rights, or any
other proprietary or personal rights of any person
or entity; and (iv) is not encrypted or protected
by any digital rights management technologies and
will not require any Grapeflix user to register
with You or any third party in order to view,
listen, download, or otherwise exploit Your
Content; (f) any and all of Your Content shall be
free and clear from any liens, encumbrances, or
any restrictions that will prevent or hinder
Grapeflix from fully exercising the Service and
its rights and obligations hereunder, and shall
not subject Grapeflix to any costs, claims, or
liabilities of any kind or nature, including
without limitation claims of any unions or
collective bargaining associations with respect to
the work or performances of any guild members or
union members included therein or thereupon, and
claims of any copyright-holders or other
rights-holders with respect to the subject
material; (g) You acknowledge that Grapeflix
receives many ideas, scripts and projects and that
there is a possibility that some of these are
similar or identical to Your Content, and that
Grapeflix's use of other material containing
elements similar to or identical with those
contained in Your Content shall not obligate
Grapeflix to negotiate with You or entitle You to
any compensation; (h) You will not imply that any
of Your Content is endorsed by Grapeflix; (i) You
are the owner of the brand, goods, and/or service
that are the subject of any advertising or
promotional materials that you post on or
distribute through the Service, or You are
otherwise authorized by the owner thereof to post
and or distribute such materials; and (j) You
shall act in good faith towards Grapeflix and
other users when posting Content, responding to
surveys, or otherwise using the Service. You agree
that no fiduciary relationship is established
between You and Grapeflix as a result of Your
submission of Content, Source Information, or any
other material to Grapeflix hereunder. You
understand that submission of Your Content and
Source Information is not made in confidence and
shall not be held in confidence by Grapeflix. You
acknowledge that Grapeflix has no obligations to
You except as explicitly set forth herein, and
that no other obligations exist or shall exist or
shall be deemed to exist. |
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10. Fees and Proceeds.
10.1 Fees
Viewer's Fees
Accessing the Site and
searching for content is free of charge. Grapeflix
will charge fees from users that download or
otherwise access Content available on or through
the Service, if the provider of such Content chose
to make the Content available for a fee (before
each access to the Content, the prices for the
options available to accessing such Content will
be presented to the user) or if the user chose to
make a donation. Such fees may be assessed in one
or more of the following forms:
(a) "Playing Content:"
For Content that is viewed by a user via live
stream to the user's computer Grapeflix will
charge a "Play Online Fee," in the amount indicated on the Content's
description page and the order confirmation page.
The quality of the Content available for streaming
is usually indicated on the Content's description
page. However, factors beyond the control of
Grapeflix, including but not limited to the user's
Internet connection and bandwidth, may
significantly impact the quality of the stream and
the viewing experience, and may result in
temporary or permanent transmission interruptions.
Grapeflix shall not be responsible for any
problem, interruption, distortion, or any other
type of technical difficulty directly or
indirectly resulting from Your computer set-up,
Internet connection, or any other such factors
impacting Your viewing experience, and shall not
reimburse the Stream Fee or otherwise compensate
You or be liable for any type of damages, unless
Grapeflix, in its sole discretion, decides
otherwise, in which case, Grapeflix may use
appropriate means, as it sees fit, to remedy the
situation, including but not limited to allowing
You to re-stream the Content to Your computer.
Without limiting the foregoing, Grapeflix
recommends that You test Your Internet connection
with playing free, technically-similar Content
available on the Site and ensure that You are
satisfied with Your experience before accessing
Content for which there is an access fee.
(b) "Renting Content:"
For Content that a user downloads to his/her
computer which is available for viewing only for a
limited period of time thereafter ("Rental Period"),
Grapeflix will charge a "Rent Fee," in the amount
indicated on the Content's description page and
the order confirmation page. Rented Content may
only be downloaded to the user's computer from
Grapeflix's servers at the time the rental order
is processed. During the Rental Period (as
indicated for each download on the order
confirmation page), You may view the rented
Content as many times as You wish, but only on the
computer that was used to download such Content
from Grapeflix. Each rental entitles You to
download one copy of the rented Content to Your
computer. Such copy cannot be transferred to
another computer and should not be tampered with,
modified in any way, or used in any manner that is
inconsistent with the terms and conditions of this
Agreement. In the event that rented Content
becomes unusable during the Rental Period without
Your direct or indirect fault or negligence,
Grapeflix may, in its sole discretion, allow You
to download such Content once again for the
remainder of the Rental Period.
(c) "Purchasing
Content:" For Content that a user downloads to
his/her computer, the viewing of which is not
limited in time, Grapeflix will charge a "Purchase Fee," in the
amount indicated on the Content's description page
and the order confirmation page. Purchased Content
may only be downloaded to the user's computer from
Grapeflix's servers at the time the purchase order
is processed. You may view purchased Content an
unlimited number of times and for an unlimited
period of time, but only on the computer that was
used to download such Content from Grapeflix. Each
purchase entitles You to download one copy of the
purchased Content to Your computer. Such copy
cannot be transferred to another computer and
should not be tampered with, modified in any way,
or used in any manner that is inconsistent with
the terms and conditions of this Agreement. In the
event that purchased Content becomes unusable
during the [ninety (90) day period] after You download such Content
from Grapeflix's servers, without Your direct or
indirect fault or negligence, Grapeflix may, in
its sole discretion, allow You to download such
Content once again.
Content Provider's Fees
We charge fees from Content
providers for using services, including, without
limitation, a monthly storage fee (based on the
volume of Content uploaded and stored on the Site
and the storage package that You select), a fee
for sending email invitations to users, a fee for
conducting surveys through the Service (based on
the number of questions in the survey), a fee for
advertising Your Content on the Site (determined
through an auction process), and a fee for
"pre-roll" advertisements which are played at the
beginning of the Content of Content providers' who
opted to allow the attachment of a pre-roll to
their Content (such fee is determined through an
auction process and based on the number of
pre-rolls played). The fees are described in
detail in the Fee Schedule, which is incorporated herein by
reference, and which Grapeflix may change from
time to time, in its sole discretion.
Changes to the Fee Schedule
are effective immediately after we provide You
with notice by posting the changes on the Site.
Grapeflix reserves the right to impose additional
fees for transactions and services at any time.
Prior to introducing any new fee structures or
membership levels, current members will be
notified via email about changes to the Service
and given the opportunity to terminate their
membership (subject to Your payment of any amounts
payable to Grapeflix). In the event of any dispute
relating to the calculation of any of the
foregoing fees, the applicable Reports shall serve
as the exclusive and conclusive basis for
calculating the disputed fees (and to the extent
such Reports are not available for technical
reasons or otherwise, Grapeflix shall have the
sole discretion to determine the correct and final
fee based on its approximation of the volume of
the data underlying the disputed fee, or based on
other methods Grapeflix judges as appropriate).
Unless otherwise stated, all fees are quoted in
U.S. Dollars. You are responsible for paying all
fees and applicable taxes associated with the
Service in a timely manner with a valid payment
method. If Your payment method fails or Your
account is past due, we may collect fees owed
using other collection mechanisms (this includes
charging other payment methods on file with us,
and retaining collection agencies and legal
counsel). Any amounts payable by You that remain
unpaid after the due date will be subject to a
late charge equal to the lesser of one and
one-half percent (1.5%) per month or the maximum
rate allowable by law from the due date until such
amount is paid.
10.2 Proceeds
In
return for taking surveys on the Service, You will
receive credit, as indicated for each survey,
which You may exclusively use to pay for services
offered by Grapeflix; provided that the payments
for such credit by the creators of the surveys
have been Cleared. Such credit will be reflected
on Your NYA Balance, and when Cleared, shall be
credited or transferred to Your A Balance.
In
return for Grapeflix's transmission of Your
Content to Grapeflix users, Your NYA Balance will
be credited (or charged, if applicable) with
"Producer Share," which is calculated with respect
to each access of Your Content according the
formula describedIn return for Grapeflix's granting playing or downloading rights of (also referred to herein as access to) Your Content to Grapeflix users, You will receive a "Producer Share," which is calculated with respect to each access of Your Content according the formula described
here.
If Your Producer Share (excluding Advertising Revenues from pre-roll plays or "Ex-Ad") resulting from a Content access is positive at the time of access, Your NYA Balance will be credited with the amount of Your Producer Share. The process of determining whether the Producer Share is positive or not is repeated each and every time Your Content is accessed.
If Your Producer Share (Ex-Ad) resulting from a Content access is negative at the time of access, Your A Balance, and if that is still not sufficient to cover the negative Producer Share, Your Unpaid Items will be charged accordingly in accordance to Section 4 herein by the negative Producer Share (Ex-Ad) amount. Your NYA Balance will be credited with the difference between Your Producer Share and Your Producer Share (Ex-Ad) when that difference is positive.
Details regarding the calculation of Your Producer Share for each Content access by a viewer can be viewed online under the "My Account/My Statements" in Your Account. In the event of any dispute relating to the calculation of Your Producer Share, the applicable Report(s) shall serve as the exclusive and conclusive basis for calculating such Producer Share (and to the extent such Report(s) are found by Grapeflix to be defective, or are not available for technical or any other reason, Grapeflix shall have the sole discretion to determine the correct and final Producer Share).
In return for creating
Referral Links on the Service, You will receive a
referral fee each time the content connected to
your links is transmitted to Grapeflix's users, in
accordance to the terms of the agreement between
you and the content owner duly communicated to the
Company by the content owner before the creation
of the Referral Links. The referral fees will be
credited to your account in the same way the
corresponding Producer Shares get credited to the
content owner's account and will be subject to the
same allocation conditions as
well.
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11. Disclaimer
of Warranties. The Service provides a forum for
the viewing and otherwise accessing of the
Content. Grapeflix does not control the content of
Content uploaded to or otherwise posted via the
Service, and does not filter or screen any of the
Content (except for random checks relating to
technological specifications) nor endorse any of
the Content. Therefore, Grapeflix is not in any
way responsible for, and makes no warranty or
representation herein to You or to any other user
with respect to, the Content of the Content or
information or other material posted using the
Service, including without limitation, the source,
accuracy, integrity, appropriateness for certain
audiences or purposes, nature, or quality thereof,
or that such material is compliant with any law,
standard, custom or practice, or that it reflects
the views or opinions of Grapeflix or any of its
officers, directors, shareholders, employees,
representatives, agents, partners, contractors,
and other affiliates. Neither the quality of the
Content or any other materials offered through the
Service, nor the integrity of rights with respect
thereto shall be deemed to be guaranteed by
Grapeflix. You are entirely responsible for all
Content that You upload, post, email, or otherwise
transmit via the Service. Grapeflix makes no
warranty or representation herein that Your
Content will actually be accessed through the
Service, nor will Grapeflix be responsible for any
transaction or proposed transaction with respect
to Your Content between You and any third party.
You understand that by using
the Service, You may be exposed to Content that is
offensive, indecent, or otherwise objectionable.
YOU AGREE THAT YOU WILL NOT HOLD GRAPEFLIX
RESPONSIBLE FOR OTHER USERS' ACTIONS OR INACTIONS,
INCLUDING WITH RESPECT TO CONTENT AND OTHER
MATERIALS AND INFORMATION THEY POST ON OR SUBMIT
TO THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU
USE THE SERVICE AND THE MATERIAL IT CONTAINS AT
YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE
SOLELY RESPONSIBLE FOR YOUR CONTENT, AND FOR ANY
DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA
THAT RESULTS FROM THE DOWNLOAD, INSTALLATION, OR
USE OF THE GRAPFLIX FILE MANAGER AND ANY MATERIAL
AVAILABLE VIA THE SERVICE (DIRECTLY OR
INDIRECTLY). YOU AGREE THAT WILL NOT HOLD
GRAPEFLIX RESPONSIBLE IN CONNECTION WITH ANY
REMOVAL OR SUSPENSION OF CONTENT, INCLUDING
WITHOUT LIMITATION, IN ACCORDANCE WITH SECTIONS 8
OR 16.
THE SERVICE AND ANY PART OR
ELEMENT THEREOF, WHETHER OWNED BY GRAPEFLIX OR
PROVIDED TO IT BY A THIRD PARTY, (INCLUDING,
WITHOUT LIMITATION, THE STORAGE, HOSTING
TRASMISSION CAPACITY, GRAPEFLIX FILE MANAGER
SOFTWARE, SURVEYS, INVITATIONS, AND ANY DIGITAL
RIGHTS MANAGEMENT TECHNOLOGY OR FUNCTIONALITY) AND
THE MATERIALS IT CONTAINS ARE PROVIDED "AS IS"
WITH NO WARRANTIES WHATSOEVER. GRAPEFLIX EXPRESSLY
DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, REGARDING THE
SECURITY, RELIABILITY, AND PERFORMANCE OF THE
SERVICE AND ANY WARRANTY OF NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
12. Limitation of Liability. YOU AGREE THAT, TO THE FULLEST
EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO
EVENT SHALL GRAPEFLIX OR ANY OF ITS PRINCIPALS,
OWNERS, PARENTS, SUBSIDIARIES, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES,
REPRESENTATIVES, AGENTS, CO-BRANDERS, PARTNERS,
CONTRACTORS, CONSULTANTS, SUPPLIERS, CUSTOMERS,
AND OTHER AFFILIATES, BE LIABLE FOR ANY DIRECT,
CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR
PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS,
BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER
FAILURE OR MALFUNCTION OR OTHERWISE, WHETHER IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING
FROM OR RELATING TO USE OF OR ACCESS TO THE
GRAPEFLIX SERVICE AND ANY PROPOSED TRANSACTION
(SUCH AS MOTION PICTURE RIGHTS AGREEMENTS OR THE
SALE OF ANY GOODS) IN CONNECTION THEREWITH, EVEN
IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. MOREOVER,
GRAPEFLIX WILL NOT BE LIABLE FOR ANY ACTS OF ITS
EMPLOYEES ACTING BEYOND THE SCOPE OF THEIR
AUTHORITY. NOTWITHSTANDING ALL OF THE FOREGOING,
IF GRAPEFLIX IS FOUND TO BE LIABLE, OUR LIABILITY
TO YOU OR ANY THIRD PARTY SHALL BE LIMITED TO THE
LESSER OF (A) THE TOTAL FEES YOU PAID GRAPEFLIX IN
THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING
RISE TO THE LIABILITY, AND (B) FIVE HUNDRED
DOLLARS (U.S. $500).
13. No Responsibility for Loss. It is Your strict
responsibility to retain copies of all Content or
other materials, and ensure that You absolutely
keep Your original copy of any such material safe
throughout the process of listing or otherwise
uploading or transmitting material to the Service
and thereafter. Grapeflix recommends that You back
up all Your materials, as Grapeflix is not
responsible for doing that for You. Grapeflix
shall not be responsible for any loss of or damage
to Content or other materials, or any copies
thereof, for whatever reason and under whatever
circumstances.
14. Uploading and Technological Problems. If You upload or
otherwise post any Content on or to the Service or
otherwise transmit the Content in connection with
the Service, You do so at Your own sole and
exclusive risk, including without limitation, the
risk that Your Content will be "stolen" or
otherwise abused or misused. Grapeflix does not
guarantee that the technology used for the Service
will in fact be compatible with all computer
systems. Grapeflix bears no liability or other
responsibility for any incompatibility of software
or computer systems, or any other technological
failure. Grapeflix does not guarantee
uninterrupted or secure access to the Service. The
Service may be interrupted by factors outside of
the control of Grapeflix. Grapeflix may provide
instructions relating to the required formatting
and other technological specifications of Content
that You wish to upload to or transmit via the
Service. It is Your sole responsibility to comply
with such instructions, and Grapeflix makes no
warranty or representation that any Content will
actually be accessible or viewable by a user. In
the event of a technological problem, Grapeflix
shall have the sole right to determine, in its
sole discretion, the appropriate way to address
and remedy such problem (including, without
limitation, whether to issue a refund).Grapeflix will have the sole discretion to determine whether any refund will be credited to Your A or NYA Balance, or to have it reflected as a credit in the account of the credit card used by you to pay for the content for which the refunded is being issued for. By default, refunds will be credited to Your NYA Balance.
15. Viruses.
You represent, warrant and agree that any Content
or other materials You furnish to Grapeflix or
upload to the Service hereunder shall contain no
computer code, instructions or other matter which
may: (a) harm, disrupt, damage, disable, or
interfere with Grapeflix's use of their computer
or telecommunications facilities for their
purposes; or (b) harm the interest or property of
other Grapeflix users. Grapeflix cannot warrant or
represent to You or any user or other party that
the Service will operate and continue to operate
in a virus-free or hacker-free fashion, and it is
Your responsibility to maintain such "firewalls",
anti-virus or other protection systems which You
may deem necessary or appropriate for Your
protection.
16. Claims of Copyright Infringement.
If we receive any copyright
infringement complaint against Your Content, we
will ask You to please contact the complaining
party and attempt to resolve the dispute, and if
You cannot resolve the dispute and inform us in
writing of such failure, we may attempt to help
resolve the dispute. Notwithstanding the
foregoing, Grapeflix reserves the right to remove
such Content until dispute has been resolved.
17. User Status Not Transferable. You cannot sell or otherwise
transfer Your user name or account name or offer
it to another person or entity under any
circumstances. Any such endeavored sales or
transfers shall be void immediately and shall, in
Grapeflix's sole discretion and at Grapeflix's
election, lead to suspension, discontinuation, or
cancellation of the subject user account.
Furthermore, all parties agree that Grapeflix
shall be entitled to receive compensation from the
violating party in an amount sufficient to cover
any and all financial damages due to the transfer
of user or account names.
18. Indemnity; Release. You agree to defend, indemnify, and
hold Grapeflix and its principals, owners,
parents, subsidiaries, officers, directors,
shareholders, employees, representatives, agents,
co-branders, partners, contractors, consultants,
suppliers, customers, and other affiliates (the "Indemnified Person(s)")
harmless from and against any and all claims,
liability, suit, proceeding, demand or action, and
any damages, losses costs(including reasonable
attorneys' fees and other legal costs), expenses,
or settlement awards incurred in connection
therewith, brought against any Indemnified
Person(s) arising out of, or related to, (i) Your
Content, Source Information, or any other material
You submit, upload to, or transmit through the
Service, (ii) any use thereof, (iii) Your use of
the Service and any materials of other users,
and/or (iv) Your breach of any term of this
Agreement.
To the maximum extent
permitted by applicable law, You hereby release,
and waive all claims against the Indemnified
Persons from any and all liability for claims,
damages (actual and consequential), costs and
expenses (including litigation costs and
attorneys' fees) of every kind and nature, arising
out of or in any way connected with use of the
Service. If You are a California resident, You
waive Your rights under California Civil Code §
1542, which states, "A general release does not
extend to claims which the creditor does not know
or suspect to exist in his favor at the time of
executing the release, which if known by him must
have materially affected his settlement with the
debtor." Residents of other states and nations
similarly waive their rights under applicable
and/or analogous laws, statutes, or regulations.
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19.
Termination; Withdrawal of Content; Discontinuance of Service. Either party may terminate this
Agreement immediately upon written notice to the
other party if the other party files a petition
for bankruptcy, becomes insolvent, or makes an
assignment for the benefit of its creditors, or a
receiver is appointed for the other party or its
business. You may terminate this Agreement for
convenience upon thirty (30) days prior written
notice. You may ask to withdraw Your Content from
public display in the Site by providing Grapeflix
with a written request as set forth in Section 23
(Notices). Grapeflix will use commercially
reasonable efforts to remove Your Content from
public display on the Site within sixty (60) days
from receipt of notice of termination or
withdrawal and in a manner consistent with the
terms of Section 5 (License). Upon any termination
of this Agreement You shall immediately (i) pay in
full Your Unpaid Fees or any other amounts (if
any) You owe to Grapeflix; (ii) remove all of Your
Content from the Service; and (iii) make copies of
all Reports. Your account will remain active (and
the fees will continue to accrue) until Grapeflix
is satisfied that the foregoing actions have been
completed by You. You agree that at any time after
termination of this Agreement, Grapeflix will not
be under any obligation to furnish Reports to You,
and that if You request a Report after
termination, Grapeflix, in its sole discretion,
may provide it to You, and may charge a fee for
doing so.
20. Privacy and Information Rights.
You agree that Grapeflix may collect and use
information that You provide to Grapeflix when You
register for the Service or otherwise use the Site
or Service (including but not limited to contact
and billing information) in accordance with the Privacy Policy, which is incorporated herein by
reference.
21. Applicable Laws. This Agreement is
entered into in California and is to be construed
in accordance with and governed by the internal
laws of the State of California (without giving
effect to any choice of law rule that would cause
the application of the laws of any jurisdiction
other than the internal laws of the State of
California to the rights and duties of the
parties). You acknowledge that when You use the
Service, You do business in California. The
parties specifically exclude from application to
the Agreement the United Nations Convention on
Contracts for the International Sale of Goods and
the Uniform Computer Information Transactions Act.
You hereby warrant, represent, agree and covenant
that You will comply with all applicable laws of
Your respective country and other jurisdictions,
as well as those other laws which may apply to You
as a result, or which are otherwise related to any
economic or other activity in connection with the
Service. You agree that You shall not utilize the
Service in a manner which violates any law. The
use of the Service is subject to all applicable
laws, including without limitation, regulation by
agencies of the U.S. government, including the
U.S. Department of Commerce, which prohibit export
or diversion of certain products and technology to
certain countries. You understand and acknowledge
that the Content is subject in all respects to
such United States laws and regulations as shall
from time to time govern the license and delivery
of technology and products abroad by persons
subject to the jurisdiction of the United States,
including the Export Administration Act of 1979,
as amended, any successor legislation, and the
Export Administration Regulations issued by the
Department of Commerce, International Trade
Administration, Bureau of Industry and Security.
It is Your responsibility to ensure Your own
compliance with all applicable laws. Grapeflix
makes no representation that materials on this
Site are appropriate or available for use in
locations outside of the United States, and
accessing them from territories where their
contents are illegal is prohibited, and Grapeflix
is not responsible for the laws of any country or
other jurisdiction which might prevent, interfere
with, impair, or otherwise adversely affect any
economic activity relating to the Service.
22. Dispute Resolution. Any claim, controversy or dispute
in connection with this Agreement ("Claim") shall be settled
through friendly consultations between both
parties. In case no settlement can be reached
through friendly consultations, both parties shall
submit the Claim to arbitration conducted by a
single arbitrator (selected by mutual agreement of
the parties) engaged in the practice of law, under
the then current Commercial Arbitration Rules of
the American Arbitration Association. The arbitral
award will be final and binding upon both parties,
and is the only means of dispute resolution and
may be entered in any court having jurisdiction
thereof. Any arbitration or other proceeding shall
occur exclusively in San Francisco, California.
Notwithstanding the foregoing, an arbitration can
only decide Grapeflix's or Your personal Claim,
and may not consolidate or join the claims of
other persons who may have similar claims, and
there shall be no authority for any Claim to be
arbitrated on a class action basis.
Any class
action relating to this Agreement or otherwise the
Service and all the issues in such action, whether
of fact or law, shall be resolved by judicial
reference pursuant to the provisions of California
Code of Civil Procedure Sections 638 through
645.1. The following shall apply to any such
proceedings: (a) the proceeding shall be brought
and held in San Francisco County, unless Grapeflix
elects an alternative venue; (b) the referee shall
be authorized to provide all remedies available in
law or equity appropriate under the circumstances
of the controversy, other than punitive damages;
(c) the parties shall promptly and diligently
cooperate with each other and the referee and
perform such acts, as may be necessary for an
expeditious resolution of the dispute; and (d) the
decision of the referee shall be appealable as if
rendered by the court. |
23. Notices. Unless provided for to the contrary in this Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Agreement shall be sent (a) if to You, at the electronic mail address You provide during registration for the Service and/or Your personal Grapeflix electronic mailbox, and (b) if to Grapeflix, must be sent by U.S. certified mail to:
Grapeflix, Inc.
1098 Foster City Blvd.
Suite 106
Mail Code 400
Foster City, CA 94404
or by electronic mail to the appropriate Grapeflix e-mail indicated in the Contact Us page.
There will be instances when Grapeflix shall specify that a particular notice, for it to be valid and acceptable, must be sent by certified mail.
Contact information shall be updated as necessary to ensure that each party has current information regarding all such contacts.
24. General.
You shall not and shall not have the right to
assign, sell, transfer, delegate or otherwise
dispose of, whether voluntarily or involuntarily,
by operation of law or otherwise, this Agreement
or any of Your rights or obligations under this
Agreement without the prior written consent of
Grapeflix. Any purported assignment, sale,
transfer, delegation or other disposition by You,
except as permitted herein, shall be null and
void. Grapeflix shall be entitled to assign, sell,
transfer, delegate or otherwise dispose of,
whether voluntarily or involuntarily, by operation
of law or otherwise, this Agreement and any of its
licenses, rights or obligations thereof. The
relationship between Grapeflix and You is not one
of a legal partnership relationship, but is one of
independent contractors with respect to each
other, and there is no affiliation to one another
other than the use of the Service. The words "You"
or "Your" shall also mean Your parent or legal
guardian (if You are between the ages of 13 and
18), heirs, executors, administrators, successors,
legal representatives and permitted assigns. This
Agreement does not affect any right that either
party would have had, or shall have, independent
of the Agreement including rights relating to
Content under applicable law, including but not
limited to copyright law. Neither party shall be
liable for failing or delaying performance of its
obligations resulting from any condition beyond
its reasonable control, including but not limited
to, governmental action, acts of terrorism,
earthquake, fire, flood or other acts of God,
labor conditions, power failures, and Internet or
other network disturbances. Headings contained
herein are for reference only and shall not be
given any legal effect. If any provision of this
Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or
invalid, that provision shall be limited or
eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full
force and effect and remain enforceable between
the parties. The failure of either party to insist
upon or enforce performance or to act in the event
of a breach of this Agreement by the other shall
not be deemed a waiver of such breach or a waiver
of future breaches or relinquishment of the first
party's right to assert or rely upon the
provision, right, or remedy in that or any other
instance; rather the provision, right, or remedy
shall be and remain in full force and effect. This
Agreement, together with the Site's Terms of Use
and Privacy Policy, set forth the entire
understanding and agreement between the parties
with respect to the subject matter hereof, and
supersedes any and all prior or contemporaneous
written or oral agreements, understandings or
representations, made between You and us regarding
the same subject matter (except other written,
fully-executed contracts between You and us).
Should legal action or arbitration arise
concerning this Agreement, the prevailing party
shall be entitled to recover all reasonable
attorneys' fees and related costs, in addition to
any other relief which may be awarded by any court
or other tribunal of competent jurisdiction. In
the event of any contradiction between the terms
of this Agreement and the terms of the Terms of
Use or Privacy Policy, the terms and conditions of
this Agreement shall prevail. The provisions of
Sections 5 (License), 6 (Proprietary Rights), 7
(Confidentiality), 9 (Your Representations and
Warranties), 11 (Disclaimer of Warranties), 12
(Limitation of Liability), 13 (No Responsibility
for Loss), 18 (Indemnity; Release), 19
(Termination; Withdrawal of Content;
Discontinuance of Service), 21 (Applicable Laws),
22 (Dispute Resolution), 23 (Notices), 24
(General) shall survive any expiration or
termination of this Agreement. |
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Fee Schedule
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All numbers in this Fee Schedule are purely indicative and are provided for illustration purposes only. Prevailing numbers are those made available on the Site at the time Services are used.
Storage Fees
The first GB is free. Then we charge $0.00 per GB per Month to store your media file on our servers.
Survey Creation Fees
The fee to create a new survey is $0.99 multiplied by the number of questions included in the survey. The fee is charged at the time of the survey creation.
Survey Compensation Fees
If the creator of a survey elects to compensate users for taking the survey (a "Survey Compensation Fee"), the survey creator will be charged with an amount equal to the Survey Compensation Fee multiplied by the total number of survey takers that have submitted the survey.
On-Site Advertising Fees
The fee for placing an advertisement on the Site is determined by Your wining bid amount in the auction process. Such fee is charged once You are recognized as the winner of the auction.
Pre-roll advertising fees
The fee for playing a pre-roll advertisement at the beginning of the Content of a Content provider is determined through an auction process and is charged each time the pre-roll is played. In this auction process, an advertiser will be granted the right to advertise through a pre-roll if the advertiser's bid is the highest bid, or if the advertiser's stated limit or bid amount is the only bid in the auction. If the advertiser is the only bidder, an amount of $0.01 will be charged for every pre-roll played. If the advertiser had the highest bid against other bidders, an amount equal to the second highest bid plus $0.01 will be charged for every pre-roll played.
Invitation Fees
The fee for sending an invitation to Grapeflix users through the invitation process available through the Service is $0.15 per invitee. The total fee for an invitation will be calculated based on the number of invitees that the inviter elected to send the invitation to at time the invitations are sent.
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Producer Share Formula
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"Producer Share," with respect to each access of Your Content, or, when applicable, to each Donation made after accessing Your Content, shall be calculated according to the following formula:
Producer Share = P * CP - T - D + A, where:
P is an amount equal to the Play Online, Rent Fee, Purchase Fee, or donation collected from the viewer in relation to the viewing of or access to the Content (P may be equal to $0).
CP is a percentage figure, calculated by the following formula (as may be changed from time to time in Grapeflix's sole discretion): The ratio of (a) the sum of (i) 90% of the lesser of P and 5, (ii) 90% of the lesser of (P-5) and 5, or zero if P equals 5 or less, and (iii) 90% of the lesser of (P-10) and 10, or zero if P equals 10 or less; and (b) P. To illustrate, If P=14, then CP = (90% * 5 + 90% * 5 + 90% * 4) / 14 = 90%. Where separate service agreements between the Company and Content Providers exist, the value of CP may be lower than 90%. In those cases, CP will have the values specified in the agreements.
T is an amount equal to the product of (i) the volume (in Giga Bytes) of data to be transmitted to the viewer (as recorded by Grapeflix), and (ii) Your "Monthly Transfer Rate" (in U.S. Dollars per 1 Giga Byte). Your Monthly Transfer Rate is determined by Grapeflix (in its sole discretion) when you register and at the beginning of each calendar month, and may be viewed online under the ["Reports/Account
Statement" in Your Account]. To illustrate, if the volume of data to be transferred to the viewer is 0.5 Giga Bytes and Your Monthly Transfer Rate is $0.30, then
T = 0.5 * $0.30 = $0.15.
D is an amount equal to either (i) $0.01, if the Content is protected by a digital rights management technology, or (ii) zero, if not so protected.
A is an amount equal to 50% of the fee paid to Grapeflix by other Content providers who play an advertisement pre-roll before Your Content. If no pre-roll is played, A equals zero.
To illustrate, if P equals $9.99, T equals $0.01, D equals $0.01, and A equals 0, then the Producer Share shall be $9.99 * 90% - $0.01 - $0.01 + $0 = $8.98
In the case of donations, no donation can be made immediately at the time of access. Therefore since at the time of access, P is equal to zero, the Producer Share at time of access has the following value:
Producer Share = -T-D+A
If a member makes a donation after accessing Your Content, then the corresponding P*CP will be credited to Your NYA Balance or Your A Balance, depending on whether the donation comes from cleared funds. Cumulatively, your Producer Share for that case will be:
P * CP - T - D + A.
****************************************************************************************************************************************************************************************************
In accordance with Section 10.2:
"Producer Share (Ex - Ad)," with respect to each access of Your Content, shall be calculated according to the following formula:
Producer Share (Ex-Ad) = P * CP - T - D, or: Producer Share - A, where P, CP, T,
D, A have the meaning indicated above.
"Producer Share (Ex-Ad)" is the Producer Share without A.
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