CLAUSE 1 – SCOPE
1.1 The Owner agrees to let the Yacht to the Charterer and not to enter into any other Agreement for the Charter of the Yacht for the same period.
1.2 The Charterer agrees to hire the Yacht and shall pay the Charter Fee, the Advance Provisioning Allowance (A.P.A.), the Security Deposit and any other agreed charges, in cleared funds, no later than the dates and to the Stakeholder’s Clients Account specified in this Agreement.
CLAUSE 2 – DELIVERY AND RE-DELIVERY
2.1 The Owner shall at the beginning of the Charter Period deliver the Yacht free of encumbrance to the Departure Port in compliance with its flag state requirements and the Charterer shall take delivery in full commission and working order. The Yacht shall be insured, seaworthy, clean, in good condition throughout and ready for service, with full equipment, including up-to-date safety and lifesaving equipment (including life-jackets for children if any are carried in the Charterer’s Party), as required by the Yacht’s registration authority and fitted out as appropriate for a Yacht of her size and type and enabling the Charterer to use the Yacht as set out in Clause 13. The Owner does not warrant her use and comfort in bad weather conditions for all cruises or passages within the Cruising Area.
2.2 The Charterer shall re-deliver the Yacht to the Owner at the Return Port free of any debts incurred for the Charterer’s account during the Charter Period and in as good a condition as when delivery was taken, except for fair wear and tear arising from ordinary use. The Charterer may, if he wishes, re-deliver the Yacht to the Return Port and disembark prior to the end of the Charter Period but such early re-delivery shall not entitle the Charterer to any refund of the Charter Fee.
CLAUSE 3 – CRUISING AREA
3.1 The Charterer shall restrict the cruising of the Yacht to within the Cruising Area and to within regions in the Cruising Area in which the Yacht is legally permitted to cruise. The Charterer shall also restrict time under way to an average of six (6) hours per day, unless the Captain, at his sole discretion, agrees to exceed this time.
3.2 The Captain and/or Dealer will make all reasonable efforts to accommodate the Charterer’s request for a berth, but in any case the Captain and/or Owner and/or Dealer and/or Stakeholder (if applicable) cannot be held liable for the unavailability of the berth.
CLAUSE 4 – MAXIMUM NUMBER OF PERSONS – RESPONSIBILITY FOR CHILDREN – HEALTH OF THE CHARTERER’S PARTY
4.1 The Charterer shall not at any time during the Charter Period permit more than the Maximum Number of guests on Board plus, at the sole discretion of the Captain, a reasonable number of visitors whilst the Yacht is securely moored in port or at anchor, or as permitted by the appropriate authority.
4.2 If children are taken on board, the Charterer shall be fully responsible for their conduct and entertainment and no member of the Crew shall be held responsible for their conduct or entertainment.
4.3 The Charterer warrants the medical fitness of all members of the Charterer’s Party for the voyage contemplated by this Agreement. The Charterer undertakes to have all necessary visas and vaccinations for the countries to be visited for himself and his guests.
CLAUSE 5 – CREW
5.1 The Dealer shall provide a Captain qualified in accordance with the Yacht’s flag state requirements and acceptable to the insurers of the Yacht. He shall also provide a suitably qualified and properly trained Crew. The Captain and Crew shall comply with the laws and regulations of any country into whose waters the Yacht shall enter during the course of this Agreement. The Crew is entitled to a minimum amount of rest in accordance with the Yacht’s Code of Practice, which includes the Maritime Labour Convention (MLC) 2006.
5.2 The Captain and Crew are bound at all times to keep all information related to this Charter, the Owner, the Charterer, and all guests as confidential and no information is to be disclosed to any third party without prior permission of the Charterer in writing.
CLAUSE 6 – CAPTAIN’S AUTHORITY AND RESPONSIBILITIES
6.1 The Captain shall comply with all reasonable orders given to him by the Charterer regarding the management, operation and movement of the Yacht, wind, weather and other circumstances permitting. The Captain shall not, however, be bound to comply with any order which might, in the reasonable opinion of the Captain, result in the Yacht moving to any port or place that is not safe and proper, or might result in the Charterer failing to re-deliver the Yacht upon the expiration of the Charter Period, or would, in the reasonable opinion of the Captain, cause a breach of any clause of this Agreement. Further, without prejudice to any other remedy of the Owner and of the Dealer, if, in the reasonable opinion of the Captain, the Charterer or any of his guests fail to observe any of the provisions in Clause 13 and if such failure continues after the Captain has given due and specific warning to the Charterer in writing in respect of the same, the Captain shall inform the Dealer/Owner, and the Dealer/Owner may terminate the Charter forthwith or instruct the Captain to return the Yacht to the Return Port and upon such return the Charter Period shall be terminated. The Charterer and his guests shall disembark, the Charterer having settled all outstanding expenses with the Captain beforehand and the Charterer shall not be entitled to any refund of the Charter Fee.
6.2 With particular regard to the use of watersports equipment, the Captain shall have the authority to exclude the Charterer or any or all of his guests from use of any particular watersports equipment if they are unsafe, or behaving in an irresponsible manner, or are under the influence of alcohol, or are failing to show due concern for other persons or property when operating this equipment.
6.3 The Captain shall immediately notify the Owner, the Dealer and the Stakeholder of any breakdowns, disablements, crew changes, accidents, or other significant incidents that occur during the Charter Period.
CLAUSE 7 – OPERATING COSTS
7.1 The Charter Fee includes the charter of the Yacht with all its equipment in working order; tools; stores; cleaning materials and basic consumable stores for engine room, deck, galley and cabins; laundry of ship’s linen; the Captain’s fee and crew’s wages, uniforms and food; the insurance of the Yacht and crew as per Clause 16.
7.2 The Charterer will pay the Advance Provisioning Allowance (A.P.A.), which includes, but is not limited to, shoreside transport; fuel for the main engines and generators; fuel for tenders and water sports equipment; food and all beverages for the Charterer and his guests; berthing dues and other harbour charges including pilots’ fees, local taxes, divers’ fees, customs formalities and any charges for waste disposal, charges for water and electricity taken from shore; ships’ agents’ fees where applicable; personal laundry; Charterer and his guests’ communications and internet use; and hire or purchase costs of any special equipment placed on board at the Charterer’s request.
7.3 In addition to the A.P.A., payment for extraordinary expenses such as special requirements or equipment, shoreside transport or excursions or any other expenses not customarily considered part of the Yacht’s operating costs may be required to be paid, via the Stakeholder’s Clients Account in advance or to the Captain on boarding.
7.4 Having paid the A.P.A. via the Stakeholder’s Clients Account, the Charterer shall be advised by the Captain, at intervals, as to the disbursement of the A.P.A. and shall, if the balance remaining becomes insufficient in the light of current expenditure as supported by receipts, pay to the Captain a sufficient sum to maintain an adequate credit balance. The Dealer shall ensure the Captain will exercise due diligence in the expenditure of the A.P.A. Any charges or fees related to the transfer of the A.P.A. to the Yacht are for the Charterer’s account. Exchange rates, if applicable, cannot be guaranteed.
7.5 Prior to disembarkation at the end of the Charter Period, the Captain shall present to the Charterer a detailed account of expenditure, with as many supporting receipts as possible, and the Charterer shall pay to the Captain the balance of the expenses or the Captain shall repay to the Charterer any balance overpaid, as the case may be.
7.6 Payment by cheque, credit card or other negotiable instrument is not normally acceptable due to the itinerant nature of the Yacht’s seasonal schedule and the Charterer should therefore ensure that he has sufficient funds available to cover all foreseeable expenses or arrange to deposit additional funds with the Stakeholder.
CLAUSE 8 – DELAY IN DELIVERY
8.1 If, by reason of force majeure (as defined in Clause 21), the Owner fails to deliver the Yacht to the Charterer at the Departure Port at the commencement of the Charter Period and delivery is made within forty-eight (48) hours of the scheduled commencement date, or within one tenth (1/10th) of the Charter Period, whichever period is the shorter, the Owner shall pay to the Charterer a refund of the Charter Fee at a pro rata daily rate or if it be mutually agreed the Owner shall allow a pro rata extension of the Charter Period.
8.2 If by reason of force majeure the Owner fails to deliver the Yacht within forty-eight (48) hours or a period equivalent to one-tenth (1/10th) of the Charter Period, to the Departure Port, whichever period is the shorter from the due time of delivery, the Charterer shall be entitled to treat this Agreement as terminated. The Charterer’s exclusive remedy will be to receive immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement. Alternatively, if the Parties mutually agree, the Charter Period shall be extended by a time equivalent to the delay or postponed to a mutually agreed time.
CLAUSE 9 – DELAY IN RE-DELIVERY
9.1 If re-delivery of the Yacht is delayed by reason of force majeure, re-delivery shall be effected as soon as possible thereafter and in the meantime the conditions of this Agreement shall remain in force but without penalty or additional charge against the Charterer.
9.2 If the Charterer fails to re-deliver the Yacht to the Owner at the Return Port due to intentional delay or change of itinerary against the Captain’s advice, then the Charterer shall pay forthwith to the Owner via the Stakeholder’s Clients Account demurrage at the daily rate plus fifty percent (50%) of the daily rate. The Charterer shall be liable for all operating costs as per Clause 7 and indemnify the Owner for any loss or damage which the Owner shall suffer by reason of deprivation of use of the Yacht or cancellation of, or delay in delivery under any subsequent Charter of the Yacht.
CLAUSE 10 – CANCELLATION BY CHARTERER – MISSED PAYMENT OF ANY AMOUNT DUE BY CHARTERER
10.1 Should the Charterer exert his right to discretional cancellation within fourteen (14) days from reservation, he will be fully refunded with the Reservation Deposit paid. Should the Charterer express the intention not to continue with the Charter on or at any time before the commencement of the Charter Period, the other Parties in this Agreement will have right, proportionally, to retain partially or totally the Charter Fee as follows:
iii) After payment of the First and Second Instalments but with no show of the Charterer, all other Parties shall be entitled to retain proportionally 100% of the Charter Fee portion of the First Instalment.
10.2 Should the Charterer fail to pay, after having been given written notice by the Owner, any amount due under this Agreement, the Owner reserves the right to treat this Agreement as having been repudiated by the Charterer and to retain the full amount of all payments and to recover all sums unpaid and due up to the date of the repudiation.
10.3 Notwithstanding the Stakeholder’s, Owner’s and Dealer’s right to receive or retain all payments referred to above, whether due to cancellation or non-payment, the Owner shall be under a duty to mitigate the Charterer’s loss and in the event that the Owner is able to re-let the Yacht for all or part of the Charter Period under this Agreement, the Owner will give credit for the net amount of charter hire arising from such re-letting after deduction of all commissions and other consequential expenses arising from such re-letting. The Owner shall use his best endeavours to re-let the Yacht and shall not unreasonably withhold his agreement to re-let, although charters which may reasonably be considered detrimental to the Yacht, its reputation, the Dealer’s Crew or its schedule may be refused.
If, prior to the date of cancellation, the Yacht has taken on provisions for the Charter, or has utilised the A.P.A. as set out on Page One of this Agreement, then the Charterer shall pay for these expenses unless all or part can be either refunded by the supplier or transferred to the next Charter, in which case they shall be adjusted accordingly. The Captain and Owner shall be under a duty to mitigate these expenses where possible.
10.4 If, after signature of this Agreement, the Owner is adjudged bankrupt or, in the case of a company, a liquidator, receiver or administrator is appointed over all or part of the Owner’s assets, the Charterer shall be entitled to cancel the Charter and all monies paid to the Owner, his agent or the Stakeholder pursuant to this Agreement shall be refunded without further deduction.
CLAUSE 11 – CANCELLATION BY OWNER
11.1 The Owner shall guarantee the availability of the Yacht for the Period of Charter. Any breach of this obligation constitutes a breach of this Agreement and entails the Owner’s exclusive liability for any incurred damages. In particular, the Agreement will be deemed as terminated towards the Owner with forfeiture of any rights accrued in favour of the Owner and the Charterer shall be entitled to immediate repayment without interest of the full amount of all payments made by him under the terms of this Agreement, save his right to claim other consequential liquidated damages from the Owner.
11.2 If the Stakeholder and/or the Dealer are able to arrange for another Charter at the same conditions, the Agreement will be amended accordingly via an Addendum, otherwise it shall be deemed as terminated with respect to all Parties.
CLAUSE 12 – BREAKDOWN OR DISABLEMENT
12.1 If after delivery the Yacht shall at any time be disabled by breakdown of machinery, grounding, collision or other cause so as to prevent reasonable use of the Yacht by the Charterer for a period between twelve (12) and forty-eight (48) consecutive hours or one tenth (1/10th) of the Charter Period, whichever is the shorter (and the disablement has not been brought about by any act or default of the Charterer) the Owner shall make a pro rata refund of the Charter Fee for the period of the disablement or, if mutually agreed, allow a pro rata extension of the Charter Period corresponding with the period of disablement. If the Charterer wishes to invoke this clause he shall give immediate notice to the Captain directly, (or via the Dealer). The Charterer shall not be liable for extra costs relating to the immobilisation of the Yacht but will remain liable for normal expenses during the period of disablement.
12.2 In the event of the actual or constructive total loss of the Yacht or if the Yacht is disabled as aforesaid for a consecutive period of more than forty-eight (48) hours or one tenth (1/10th) of the Charter Period, whichever is shorter, the Charterer may terminate this Agreement by notice in writing to the Owner via the Stakeholder or to the Captain if no means of communication is available. Within two (2) working days after such termination, the Charter Fee shall be repaid by the Owner pro rata without interest for that proportion of the Charter Period outstanding after the date and time on which the loss or disablement occurred. In the event of such termination the Charterer may redeliver the Yacht by giving up possession of the Yacht where she lies. The Charterer shall be entitled to recover from the Owner the reasonable cost of returning the Charterer and his guests to the Return Port together with reasonable accommodation expenses incurred.
12.3 Alternatively, after a consecutive period of disablement of more than forty-eight (48) hours or one tenth (1/10th) of the Charter Period, whichever the shorter, and dependent on the nature and seriousness of the disablement, by mutual agreement the Charterer may elect to remain on board for the duration of the Charter Period and the Charterer will then have no further or additional claim against the Owner.
CLAUSE 13 – USE OF THE YACHT
13.1 The Charterer shall comply, and shall ensure that the guests comply, with the laws and regulations of any country into whose waters the Yacht shall enter during the course of this Agreement.
The Charterer shall ensure that no pets or other animals are brought on board the Yacht without the consent in writing of the Owner.
The Charterer shall ensure that the behaviour of the Charterer and his guests shall not cause a nuisance to any person or bring the Yacht into disrepute.
The Yacht is not to be used for commercial photo or film shoots of any nature, unless by written permission from the Owner.
Unless otherwise agreed, smoking shall be restricted to the exterior areas of the Yacht designated by the Captain.
Rendezvous diving only unless otherwise noted under special conditions.
The Yacht operates a zero tolerance policy and the possession or use of any illegal drugs or any weapons (including firearms) is strictly prohibited on board the Yacht. Failure to comply shall be sufficient reason for the Owner to terminate the Charter forthwith without refund or recourse against the Owner, Stakeholder or Dealer.
13.2 The Captain shall promptly draw the Charterer’s attention to any infringement of these terms by himself or his guests, and if such behaviour continues after this warning, the Captain shall inform the Owner or Stakeholder, and the Owner may, by notice in writing given to the Charterer, terminate this Agreement in accordance with Clause 6.
13.3 If the Charterer or any of the guests shall commit any offence contrary to the laws and regulations of any country which results (i) in any member of the Dealer’s Crew of the Yacht being detained, fined or imprisoned, the Charterer shall indemnify the Dealer against all loss, damage and expense incurred by the Dealer as a result; (ii) or in the Yacht being detained, arrested, seized or fined, the Charterer shall indemnify the Owner against all loss, damage and expense incurred by the Owner as a result, and the Owner may, by notice to the Charterer, terminate this Agreement forthwith.
CLAUSE 14 – NON-ASSIGNMENT
The Charterer shall not assign this Agreement, sub-let the Yacht or part with control of the Yacht without the consent in writing of the Owner, which consent may be on such terms as the Owner thinks fit.
CLAUSE 15 – SALE OF THE YACHT
15.1 Should the Owner agree to sell the Yacht after the signing of this Charter Agreement, but before delivery to the Charterer, the Owner shall immediately, upon entering into an agreement for the sale of the Yacht, give notice of such sale in writing to the Charterer via the Stakeholder. This information shall be kept in strict confidence by all parties to the Agreements.
15.2 Should the Yacht be sold one of the following provisions will apply:
CLAUSE 16 – INSURANCE
16.1 Throughout the period of this Agreement the Owner shall insure the Yacht with first-class insurers against all customary risks for a Yacht of her size, value, and type on cover no less than is provided under Institute Yacht Clauses 1.11.85 or other recognised terms extended to provide Permission to Charter and to cover third party liability, Water Skiers liabilities together with liabilities arising from the use by the Charterer and other competent person(s) authorised by him of personal watercraft, including jet skis, wave runners and other similar powered craft as well as windsurfers, dinghies, catamarans or other water-sports equipment carried by the Yacht. The insurance shall also cover War, Strikes, Pollution. The Charterer shall remain liable for any loss, damage or liabilities arising from any act of negligence of the Charterer or his guests and not recoverable by the Owner under his insurance. Such insurance shall be on such terms and subject to such excess (deductible) as are customary for a Yacht of this size, value, and type. If the Chartering of the Yacht is not covered by the insurance coverage of the Yacht, the Owner alone shall be liable of all costs and expenses eventually charged to the other Parties in this Agreement that such extended coverage would have reimbursed.
16.2 The Dealer shall provide and include insurance of Crew against injuries and/or third party liabilities incurred during the course of their employment. The Charterer shall remain liable for any loss, damage or liabilities arising from any act of negligence of the Charterer or his guests and not recoverable by the Dealer under his insurance.
16.3 Copies of all the relevant insurance documentation shall be available on request for inspection by the Charterer prior to the Charter on reasonable notice, and shall be carried on board the Yacht.
16.4 The Charterer should carry independent insurance for Personal Effects whilst on board or ashore and for any Medical or Accident expenses (including emergency transport evacuation) incurred.
16.5 The Charterer should be aware that neither Charterer’s Liability Insurance nor Cancellation and Curtailment Insurance are included in this Agreement.
CLAUSE 17 – SECURITY DEPOSIT
Unless otherwise provided on Page One of this Agreement, the Security Deposit shall be held by the Stakeholder on the Owner’s behalf and may be used in, or towards, discharging any damage or liability that the Charterer may incur under any of the provisions of this Agreement. If not required, as confirmed by the Captain in writing to the Stakeholder, the Security Deposit shall be refunded without interest to the Charterer on the first working day after the end of the Charter Period, or after settlement of all outstanding questions, whichever is the later.
CLAUSE 18 – SALVAGE
During the period of the Charter, the benefits, if any, from any derelicts, salvages and towages, after paying the Crew’s proportion, and a proportion of the Charter Fee during the time when the Yacht is engaged in providing salvage assistance, and expenses during this time directly related to the salvage, shall be shared equally between the Owner and the Charterer.
CLAUSE 19 – COMPLAINTS
The Charterer shall give notice of any complaint in the first instance to the Captain on board and note shall be taken of the time, date and nature of the complaint. The Captain shall inform the Dealer/Stakeholder as soon as practicable. If, however, this complaint cannot be resolved on board the Yacht then the Charterer shall give notice to the Owner or to the Stakeholder within twenty-four (24) hours of the event or occurrence unless it is impracticable due to failure or non-availability of communications equipment. The complaint may be made verbally in the first instance, but shall be confirmed as soon as possible in writing specifying the precise nature of the complaint.
CLAUSE 20 – PAYMENT OF CHARTER FEES AND OTHER MONIES TO THE OWNER
20.1 All funds due by the Charterer to the Stakeholder against this Agreement shall be paid in Euros and, once paid, will be held in the Stakeholder’s Clients Account. From this amount, all sums due to the Owner and the Dealer will be deducted by the Stakeholder, by wire transfer as soon as possible after the end of the Charter Period, unless the Stakeholder has received written notice of a complaint by or on behalf of the Charterer. Once such notice of complaint has been received by the Stakeholder, the same shall be obliged to retain the thirty percent (30%) of the Charter Fee for a period of fourteen  business days. If during such fourteen  business days period the Charterer’s complaint is resolved then the Stakeholder shall pay the retained amount of the Charter Fee to the Owner. If after fourteen  business days neither party shall have started a lawsuit then the retained amount of the Charter Fee shall be paid by the Stakeholder to the Owner on the first working day after the fourteen  business days period referred to above. If a lawsuit has been filed then the Stakeholder shall retain the balance of the Charter Fee until a Court order or its judgement has been issued or the matter settled by mutual agreement between the parties.
20.2 The Advance Provisioning Allowance (A.P.A.) shall be transferred by the Stakeholder to the Captain, or to the Dealer for onward transmission to the Captain prior to embarkation, by wire transfer. Any extraordinary expenses shall either be paid upon request to the Stakeholder or directly to the Captain.
CLAUSE 21 – FORCE MAJEURE
In this Agreement ‘force majeure’ means any cause directly attributable to acts, events, non-happenings, omissions, accidents or Acts of God or Act of Authority including orders in matters of public health due to quarantine measures or otherwise, beyond the reasonable control of the Owner, the Crew, or the Charterer (including, but not limited to, strikes, lock-outs or other labour disputes, civil commotion, riots, acts of terrorism, blockade, invasion, war, fire, explosion, sabotage, storm, collision, grounding, fog, governmental act or regulation, contaminated fuel, major mechanical or electrical breakdown beyond the Crew’s control and not caused by lack of maintenance and/or Owner’s or Crew’s negligence). When force majeure is invoked in relation to breakdown or disablement, the Owner will instruct the Captain or Owner’s representative to submit a detailed technical report, a copy of the Yacht’s maintenance log, if applicable, and all relevant supporting documentation to the Charterer or Charterer’s representative.
CLAUSE 22 – GOVERNING LAW, DISPUTE RESOLUTION AND JURISDICTION
22.1 This Agreement and any dispute or claim including non-contractual disputes or claims arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English law.
22.2 Subject to the foregoing, each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. Unless precluded from doing so by any rule or practice direction, any such proceedings will be commenced in the London Commercial Court.
22.3 In the event of a dispute or difference arising out of or in connection with this Agreement, all parties agree that before commencing proceedings in the courts they will consider in good faith whether it would be appropriate to attempt to resolve such dispute or difference by mediation or other forms of alternative dispute resolution. Neither party shall decline a request to mediate made by the other without informing the requesting party of its reasons for refusal.
22.4 If notice of proceedings is given by either party, the Stakeholder, after receiving notification of such proceedings, shall not deal with those monies held by them without the agreement of both parties or in accordance with the order of the Court or its final judgement. The monies should be held in a designated client account. This account should be interest bearing where national banking rules permit.
CLAUSE 23 – COMMISSION
23.1 The commission shall be deemed to be earned by the Dealer and the Stakeholder upon the signature of this Agreement by the Charterer and payment of the full Charter Fee by the Charterer, but excluding running expenses, according to Clause 20 of this Agreement, whether or not he defaults for any reason including force majeure. In the event of cancellation by the Charterer, the commission shall be deducted as an expense from the sums retained.
23.2 If the Charterer should extend this Charter, the Owner shall pay commission on the gross Charter Fee for the extension, on the same basis as provided in 23.1.
CLAUSE 24 – WAIVER
The Dealer and Stakeholder in this Agreement shall have no responsibility for any loss, damage or injury to the person or property of the Owner or Charterer or any of their guests, servants or agents, and further, the Dealer and Stakeholder shall be under no liability for any errors of judgement or description or otherwise, of whatsoever nature and howsoever arising, and shall be under no further obligation, duty or responsibility to the Owner or the Charterer save as set out herein. The Owner and the Charterer shall jointly and severally indemnify and hold harmless the Dealer and Stakeholder for any loss or damage sustained by them as a result of any liability by the Dealer and Stakeholder to any third party (person, firm, company or authority) arising from promoting or introducing this Charter, assisting in the performance of this Agreement or performing the duty of Stakeholder.
CLAUSE 25 – NOTICES
Any notice given or required to be given by either Party to this Agreement shall be communicated in any form of writing and shall be deemed to have been properly given if proved to have been dispatched and properly addressed by mail or courier service or email in the case of the Owner/Stakeholder/Dealer, to each of them at their addresses as per this Agreement or, in the case of the Charterer, to his address as per this Agreement or, where appropriate, to him on board the Yacht.
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