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BOOK PUBLISHING AGREEMENT
Agreement made this 5th of September, 2009 between (KINGSINGTON PUBLISHING,INC.) whose address is 950 Broadway Suite 200 New York, New York 10010 (referred to as “Publisher”), and … Rory McDaniel (d.b.a. R, Slain Barca) 924 W. 116th Place Chicago, Il. 60643 WHEREAS, the parties wish respectively to publish a work under the working title: Mind Games, hereafter referred to as “the work”. NOW THEREFORE, KINGSINGTON PUBLISHING, INC. and Rory McDaniel (d.b.a. R. Slain Barca) mutually agree as follows: 1. Grant of Rights. Author grants to Publisher during the term of copyright in the Work, including renewals and extensions thereof: A. The sole and exclusive right to publish, exploit, sell and/or license the publication and sale of, all or any portion of the Work or any derivation thereof, without limitation, in any form, style, or manner now known or hereafter invented, and in any or all languages, throughout the world with mutual consent of the author. With respect to any rights that transcend the rights attendant to a book, the consent may be withheld in author’s sole discretion. , I would like to eliminate this. Not that we wantt to bypass you but in order that our sales and marketing team can have the liberty to explore as many potential markets and version of this book. We would of course communicate with you what we are doing. . B. Publisher shall have the right to use or license to others the right to adapt or use the Work or any portion, element or adaptation thereof and any characters depicted therein in all media and mediums of expression, reproduction and dissemination, whether known or unknown, without limitation, throughout the world. C. The sole and exclusive subsidiary publication rights throughout the world as set forth in paragraph 9 below. Publisher shall have the right to exercise any or all of the subsidiary publication rights itself and/or to authorize others to exercise any of the rights granted to Publisher. 2. Manuscript. A. Delivery. Author will supply Publisher a completed manuscript on disk and hard copy. (i) Author is responsible for compilation of endnotes, documentation, index and/or glossary. If Publisher is requested to assist or to supply these items, the Author will be billed accordingly. (ii) A penalty charge will be levied against Author, if manuscript is not delivered according to schedule. B. Edit. Manuscript will be edited by a Destiny Image editor after which it will be returned to the Author. Author agrees to read, revise, correct and return promptly all proofs of the Work. Author will have two weeks from the time that the manuscript is sent to review and make corrections and return to the Publisher. Any edit on manuscript that exceeds a level three edit will be paid for by the Author. This fee will be quoted and delivered to the Author by the Production Department and may be paid directly to the Publisher or applied against royalties.
FOUNDATIONALLY SPIRIT-FILLED • BIBLICALLY SOUND • SPIRITUALLY INSPIRATIONAL
C. Changes and Corrections. After book has been published, any changes to text or cover desired by Author must be approved by the Publisher. Author will be billed accordingly. This, naturally, does not include changes made by the Publisher. D. Writer’s Fee. N/A.
E. Publisher’s Determination. Publisher shall be free to prepare the Manuscript of the Work in such manner as shall be consonant with its publishing house style. All details as to the manner of publication, distribution and advertising, including the format and price of the Work in its manufactured form and the number and distribution of free copies, shall be left to the sole discretion of Publisher. Author will be granted the right to review and makes suggestions on cover design. F. Prepublication Review/Libel Reading. Publisher shall not be bound by any time limit for publication set forth in this Agreement if in Publisher’s good faith opinion the Manuscript of the Work contains materials which is likely to risk involving Publisher in litigation. The legal cost of a libel reading, if any, shall be borne by Author. Failure by Author to make changes advised by Publisher’s counsel in good faith shall be cause for termination of this Agreement as it pertains to the Work and shall permit the recovery by Publisher from Author of any monies advanced to Author for the Work. Should Publisher choose to terminate this Agreement, notice of Publisher’s intent will be in writing and this Agreement will terminate within sixty (60) days from the time of notice. If, during the sixty (60) day period, Author shall cure the legal issues, this Agreement shall remain in full force and effect. The fact that Publisher conducts or does not conduct a libel reading of the Work shall not relieve Author of any liability relating to Author’s representations and warranties in this Agreement. 3. Third Party Permissions. If copyrighted material from other sources (including any writings, compositions, photos, or any materials not owned or controlled by Author) is included in the Work, Author, at Author’s own expense, shall obtain from each copyright owner, or its duly authorized representative, written permission for use of the material and shall deliver to Publisher each permission at the time of delivery of the final Manuscript. Should Publisher determine, at its sole discretion, that any written permissions have not been provided by Author in accordance with this paragraph, or that additional permissions are needed, Publisher may require Author to obtain missing or needed permissions. Publisher shall have the option of obtaining the written permissions and, in turn, charging any fees demanded by the copyright owner to the Author as a charge against Author’s royalty earnings. 4. Conflicting Publication. During the term of this Agreement, Author will not, without the written permission of Publisher, publish or permit to be published any material based on material in the Work. 5. Date of Publication. Within twelve (12) months after Author has delivered the Manuscript in conformity with paragraph 2, Publisher will publish the Work at its own expense, under such imprint, as Publisher deems suitable. Publisher shall not be responsible for delays caused by any circumstance beyond its control. If Publisher has not published the work within the twelve (12) month period, Author will have the right, upon sixty (60) days written notice to Publisher, to terminate this Agreement and to retain any and all sums previously received from Publisher as an advance for the rights granted in this Agreement. Notwithstanding the foregoing, should Publisher commence preparation for publication of the Work within that sixty (60) day period, Author’s notice of termination shall have no effect, and this Agreement shall remain in full force and effect as if no notice had been given. The right to request termination and retention of sums paid as provided in this paragraph shall be Author’s sole and exclusive remedy for Publisher’s failure to publish the Work pursuant to this Agreement. Consequential damages are expressly excluded and, therefore, Author shall not be entitled to recover consequential damages, including, but not limited to, lost profits for Publisher’s failure to publish the Work. However, in no event shall Publisher be obligated to publish the Work if in Publisher’s opinion the Work violates the common law or statutory copyright or the right of privacy of any person or contains libelous or obscene matter. 6. Copyright. Publisher shall register the Work with the United States Copyright Office in Authors’ name. If Publisher adds illustrations or other material, and if copyright is in the Author's name, Author agrees, upon request, to assign the copyright of the material to Publisher. 7. Royalty Payments.
A. Publisher shall pay Author the following royalties on the net sales of the Work. As used in this Agreement, “net sales” shall mean the total number of copies of the Work sold less the total number of copies returned to Publisher. “Sums actually received by Publisher” shall mean the amount of money received by Publisher, minus any shipping cost that must be paid by Publisher out of any amount received. The term "net receipts" shall mean the gross receipts actually received by Publisher or its agent in the United States from third party licenses of the Work, reduced by collection fees and costs charged by any collection agent or
organization or legal fees, court costs or other direct costs incurred by Publisher in the collection of such sums, or other nonrecoupable fees or monies paid to third parties.
(i) Trade Sales. On all copies of each edition of the Work, other than sales falling within 7 A (ii) through 7 A (ix) below, the royalty shall be as described below: 20% of the sums actually received by Publisher on net sales. 22% of the sums actually received by Publisher on net sales, after the first 20,000 units. 25% of the sums actually received by Publisher on net sales, after the first 40,000 units. 65% of total royalties will be distributed to and 35% to Ten percent (10%) of all sums due the Authors under this Agreement shall be paid to
(ii) Subsidiary/Affiliate Editions. On all editions of the Work (including those in a foreign language) published by a subsidiary or affiliate of Publisher, whether distributed domestically or in a foreign country, excluding sales covered by other provisions of paragraph 9 of this Agreement, Publisher shall pay Author a sum equal to the agreed upon royalty as stated in (1) above. No royalty shall be paid on Author purchases of these editions, nor shall sales of these editions be counted toward any graduated royalty, if any, on the original Work. The royalty payable to Author with respect to these editions of the Work sold or distributed by any other licensee of Publisher shall be governed by paragraph 9 A (e) of this Agreement. (iii) Mass Market Paperback Editions. On copies of any mass market paperback edition (defined as any paperbound edition having a grim size of approximately 4 3/16” by 7”) of the Work sold by Publisher, a royalty will be paid to Author of Ten Percent (10%) of the sums actually received by Publisher on net sales. The royalty payable to Author with respect to a mass market edition of the Work sold or distributed by any licensee of Publisher shall be governed by paragraph 9 A (d) of this Agreement. (iv) Book Clubs. On copies of the Work sold through book clubs or similar book sales organizations owned by Publisher, the royalty shall be a sum equal to Five Percent (5%) of the book club selling price. The royalty payable to Author on copies of the Work sold with respect to Publisher’s sale or license to book clubs shall be governed by paragraph 9 A (c) of this Agreement. (v) Merchandising and Other Commercial Rights. Publisher may use the title of the Work, the names and characterizations of characters created in the Work, artwork or photographs included in the Work or any other portion or element of the Work at Publisher’s discretion as a basis for (i) trademarks or trade names for other products, and (ii) any other commercial product or purpose. On copies of the Work or other aforementioned products derived from the Work and sold by Publisher under the terms of this paragraph, Publisher shall pay Author a royalty of Five Percent (5%) of the sums actually received by Publisher on net sales. The royalty payable to Author with respect to Merchandising and other commercial rights of the Work sold or distributed by any licensee of Publisher shall be governed by paragraph 9 A (l) of this Agreement. (vi) Free Copies. No royalties shall be paid on copies furnished at no charge to Author or distributed for review, advertising, sample, promotional, or like purposes. (vii) Excerpts; Permissions. Author grants sole and exclusive rights to Publisher to grant permission to publish excerpts from the Work, whether or not a fee shall be collected for such use. Publisher warrants that it will make no gratuitous grants of permissions, except as shall, in its sole judgment or discretion, advance the sale of the Work or enhance the public esteem of Author. Publisher shall pay to Author Fifty Percent (50%) of the sums actually received by Publisher as compensation for such grants of permission to reprint excerpts from the Work.
(viii) Braille; Handicapped Editions. Publisher is authorized to permit publication of the Work in Braille, or reproduction of the Work for the physically handicapped without payment of fees and without compensation to Author, providing no compensation is received by Publisher. In case compensation for any of those uses is received, Publisher shall pay Author Fifty Percent (50%) of all sums of money actually received by Publisher for those uses.
Electronic Editions. On copies of any electronic edition (e.g. e-books, internet downloads, etc.) of the Work sold by Publisher, a royalty based on the portion of the Work used or its pro-rata portion (e.g., if part of a compilation) will be paid to Author as outlined in paragraph 7 A (i) herein on all copies of such editions of the Work sold. The royalty payable to Author with respect to an electronic edition of the Work sold or distributed by any licensee of Publisher shall be governed by paragraph 9 A (m) of this Agreement.
(x) Other Ancillary and Derivative Products. For any publication or product in print form derived from the Work that is published or produced and sold by Publisher, for which a royalty rate is not specified elsewhere in this Agreement, the royalty shall be that rate which Publisher determines, acting in good faith, that it is paying or would pay, with respect to comparable products or publications. B. Remainders; Overstock. Publisher may, without prior written notice to Author, dispose of books which, in Publisher’s sole discretion, it deems to be overstock or remainders in any manner Publisher may see fit and will have no obligation to pay royalties on copies so disposed of at or below Publisher’s costs. 8. Agency: If the Author has an agent, as indicated by the inclusion of any agent’s name and address in this agreement, until receipt by the Publisher of written notice by the Author canceling the agent’s authority hereunder, all payments accruing to the Author under this agreement shall be made to such Author’s agent, and the receipt by the Author’s agent shall constitute a full and valid discharge of the Publisher’s obligations for such payments under this agreement. The agent will be responsible for all payments to the Author and any tax withholding obligations arising therefrom. The Author’s agent is fully authorized to do and perform all acts on behalf of the Author in all matters arising out of or under this agreement, and the Publisher may conclusively rely upon such authority until actual receipt by the Publisher of written notice, signed by the Author, canceling or limiting such authority. No such revocation or limitation shall affect the validity of any act of the agent prior to receipt of such notice by the Publisher to the extent that the Publisher has relied thereon. 9. Subsidiary Rights. A. Subsidiary and additional rights granted to Publisher in this Agreement are: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) Abridgement or condensation Anthology or quotation Book clubs or similar organizations Reprints, paperbacks or hardcover Translations Special editions First serial Second serial and syndication (including reproduction in compilations, magazines, newspapers or books) Calendars Workbook Sole and exclusive rights of publication in, and disposal of subsidiary rights in foreign countries Merchandising and other commercial rights Electronic editions (e-books, Internet, etc.)
B. These rights are in addition to the rights granted in paragraph 1 of this Agreement and are not limited by any restrictions stated in paragraph 1. All monies actually received by Publisher from licensing or disposition of these rights, less one-half (½) of an agent’s commission when applicable, as shall be incurred by Publisher in disposing of such rights, shall be shared equally (Fifty Percent [50%] to Author and Publisher) unless otherwise mutually agreed upon in writing by the parties. 10. Reports and Payments.
A. Publisher shall render royalty statements to Author. Quarterly reports are due the last week of the Quarter following the report period. A check is due the Quarter following. In rendering accounts and payments to Author, Publisher shall have the right to allow for a reasonable reserve against returns and nonpayment of invoices for copies billed by Publisher. For the first three quarters of a New Release, 25% of total royalties due will be held in reserve as a protection against such returns and nonpayments. Thereafter, 15% will be withheld. The reconciliation is done automatically each month as unsold books are returned to us. Publisher shall be obligated to pay royalties under this Agreement only with respect to sums actually received by Publisher. See example below: , we need to leave this at 25% and 15% in order to protect both the author and the publisher in the case of returns especially for an author of ’ caliber where we will be penetrating the mass market which has the greatest potential for returns. You will see that these reserves are eventually reconciled back to the author. 1st Quarter – Report due last week of May. Payment due last week of September. B. Should Author receive an overpayment of royalty arising from copies reported sold but subsequently returned, Publisher may deduct such overpayment from any further sums due Author. C. All royalty statements and other accounts rendered to Author under this Agreement will be binding upon Author unless specific objection, in writing, stating the basis thereof is received by Publisher within one (1) year from the date rendered, in which event the statement shall be binding in all respects except for those specifically stated in the written objection. No legal action or suit by Author with respect to any matter relating to any accounting or payment rendered pursuant to this Agreement may be maintained against Publisher unless filed in a court of competent jurisdiction within two (2) years from the date a statement is rendered. If Author commences an action, suit or proceeding against Publisher concerning any statement, the scope of that action, suit or proceeding will be limited to a determination of the amount of royalties, if any, payable to Author for the accounting period in question, and Author’s sole remedy will be the recovery of those royalties. Author may not use any claim pertaining to royalties, payments or accounting as a basis for terminating this Agreement, avoiding performance of Author’s obligations, or impairing or limiting any rights granted to Publisher by Author. A certified public accountant with book publishing experience which is duly authorized by Author, upon at least sixty (60) days written notice to Publisher, shall have the right to examine and inspect Publisher's books and records solely with respect to the Work. The examination shall take place at Publisher's principal office during Publisher’s normal business hours. Author’s right to inspect Publisher’s books and records pursuant to the provisions of this paragraph may be exercised not more than once with respect to any given accounting period nor more than once during any calendar year. Author hereby confirms that the examination, and any negotiations or matters related to the examination, are of a confidential nature and may only be disclosed or discussed between Author and Author’s professional advisors (i.e. Author’s accountant and/or attorney), but no one else, and Author will ensure that Author and Author’s professional advisors sign any confidentiality document Publisher may require prior to the commencement of any examination. If any payments are due Author as a consequence of an examination under this Agreement, the payments will be credited to Author’s appropriate royalty account after the execution of a letter of release acknowledging that all controversies between Author and Publisher with respect to the royalty accountings examined by Author and/or Author’s professional advisors are finally compromised, settled and are deemed conclusive, accepted and binding upon Author. 11. Name and Likeness. Publisher shall have the right, without restriction, to use and allow others to use, without any additional compensation to Author, Author's legal and professional name and likeness, biographical material and signature in connection with Publisher's business in general and with the use, publication, promotion and exploitation of the Work. 12. Option for Next Work. N/A
13. Copies to Author. On initial publication of the Work, Publisher shall give five (5) free copies to Author. Subject to such reasonable limitations as Publisher may impose. Authors may pre-purchase copies of the Work from Publisher at Seventy Percent (70%) off the suggested retail list price of the Work, on purchases of 4,000 or less units, a Seventy-five Percent (75%) 5
discount on purchases of 4,001 to 5,000 units and an Eighty Percent (80%) discount on purchases of 5,001 or more units, and Eighty-two Percent (82%) on orders over 10,000, plus shipping expenses. Thereafter, Authors may purchase further copies of the Work from Publisher at Seventy Percent (70%) off the suggested retail list price of the Work, plus shipping expenses. After the first printing the Publisher needs 3 to 4 weeks notice to fulfill Author orders of 1,000 units or more. No royalties shall be paid to Artist on product sold or given to Author. Publisher may retain royalties and other sums otherwise payable to Author under this Agreement to offset any amount owed to Publisher by Author that are more than ninety (90) days delinquent. will be granted 30 days for payment. Dr. Land will pay for purchases at the time of the purchase. Once Dr. Land has established credit with Destiny Image by faithful payment of order then she will also be extended net 30 days for future payments. 14. Discontinuance of Publication. If Publisher has determined that it will not reprint the Work and publicly declares the Work to be out of print, Author may, within thirty (30) days of payment of all sums chargeable to or payable by Author pursuant to this Agreement submit to Publisher a written request to reacquire all rights previously granted to Publisher under this Agreement, subject, however, to any sublicenses or options previously granted by Publisher to other parties and to Publisher’s right to receive future payments due to Publisher with respect to such sublicenses and options. If Author desires to acquire any negatives of the Work (with the exception of jacket or cover negatives), if they have been preserved, along with any negatives of illustrations furnished by Author and any remaining copies of the Work, Author shall have sixty (60) days following actual reversion of rights in which to submit a written request for same. The requested materials shall be transferred to Author, provided that Author shall pay Publisher the shipping costs and original manufacturing costs of such negatives, including film expenses. Should Author decline to purchase said materials, or fail to submit a written request for same within the sixty (60) day period, Publisher shall have the right to destroy any negatives and to sell remaining copies of the Work at cost or less, without payment of royalty to Author for those copies. The Work shall not be considered to be out of print if it is available for sale in any printed edition, including reprints, whether under the imprint of Publisher or another, or if there shall be in existence a contract for another edition of the Work. 15. Warranties and Indemnities.
A. Author warrants that Author is the sole author of the Work; that Author is the sole owner of all the rights granted to Publisher; that Author has not previously assigned, pledged or otherwise encumbered the Work; that Author has full power and authority to enter into this Agreement; that except for the material obtained pursuant to paragraph 3 the Work is new and original, has not been published before, and is not in the public domain; that it does not violate any right of privacy; that it is not libelous or obscene; that it does not infringe upon or interfere with any other works, books or materials; that it will not violate, invade, infringe upon or interfere with the rights of any third party or any statutory or common law copyright; and that any recipe, formula or instruction contained in the Work is not injurious to the user. B. Author shall and does hereby indemnify, save and hold Publisher harmless from any loss or damage, including reasonable attorneys' fees, arising out of or in connection with any breach or default by Author hereunder or any claim by a third party which is inconsistent with any of the warranties, representations and covenants or agreements made by Author in this Agreement. If Author fails or refuses to approve any proffered settlement, Publisher shall never the less have the sole right to settle any such claim unless Author provides Publisher with a bond, with surety acceptable to Publisher, in the full amount of the original claim together with anticipated, reasonable attorneys' fees and costs and further reimburses Publisher for all attorneys' fees and costs incurred by it with regard to such claim to date and bears responsibility for and pays as and when due all further attorneys' fees and costs incurred through resolution of the matter. If there is an assertion of any claim by a third party which is inconsistent with any of the warranties, representations, covenants or agreements made by Author in this Agreement, Publisher shall serve notice of the claim upon Author, and Author may, at Author's sole cost and expense, participate in the defense of the claim, provided that Publisher shall have the right to control the defense thereof. In the event of such breach, default or claim, Publisher may, until the same has been adjudicated or settled, hold in trust for Author any and all monies due and payable to Author under this or any other agreement between the parties in an amount reasonably necessary to indemnify Publisher fully hereunder with regard to the breach, default or claim (including anticipated attorneys' fees and costs), provided that upon final adjudication or settlement thereof, the monies may, at Publisher's option and to the extent necessary, be applied in satisfaction of a judgment or settlement. C. These warranties and indemnities shall survive the termination of this Agreement.
16. Suits for Infringement of Copyright. If the copyright of the Work is infringed, and if the parties proceed jointly, the expenses and recoveries, if any, shall be shared equally, and if they do not proceed jointly, either party shall have the right to prosecute the action, and that party shall bear the expenses thereof, and any recoveries shall belong to that party; and if that party shall not hold the record title of the copyright, the other party hereby consents that the action be brought in Author’s or its name. 17. Copyright Notice. Publisher shall use reasonable efforts to ensure that all copies of the Work that are distributed to the public shall bear the copyright notice prescribed by the applicable copyright laws of the United States of America. Author appoints Publisher as Author’s attorney-in-fact in Author’s name and in Author’s stead to execute all documents for recording in the Copyright Office evidencing transfer of ownership in the exclusive rights granted to Publisher under this Agreement. 18. Cure of Defaults. As a condition precedent to the assertion by Author that Publisher is in default in performing any obligation contained in this Agreement, Author shall advise Publisher in writing specifying any alleged default, and Publisher shall be allowed a period of sixty (60) days after receipt of the written notice to cure the alleged default. Author agrees that for the purposes hereof, no alleged breach by Publisher of this Agreement shall be deemed incurable. 19. Notices. All notices given under this Agreement by either party to the other (excluding accounting statements and payments) shall be transmitted in writing by United States registered or certified mail, return receipt requested and postage prepaid or by facsimile transmission (with a copy sent within twenty-four (24) hours by certified mail, return receipt requested) to the parties' addresses set forth above or to such other address as a party shall designate by notice to the other. All notices and accountings shall be deemed given upon the date of deposit thereof in the United States Mail with the exception of notices of change of address which shall be deemed given only upon actual receipt by the intended recipient. 20. Assignment. In view of the unique and extraordinary character of the services Author shall render hereunder, neither this Agreement nor any of Author's obligations hereunder shall be assignable by Author. Publisher shall have the right to assign this Agreement and/or any of the rights obtained by Publisher pursuant to the Agreement. 21. Legal Counsel. Author hereby represents and warrants that author has been advised of author’s right to retain independent legal counsel in connection with the negotiation of this agreement and that Author has either retained and been represented by legal counsel or has knowingly and voluntarily waived Author’s right to legal counsel. 22. Confidentiality. All of the details contained within this publishing contract are strictly proprietary and may not be made available to anyone under any circumstances. Any violation of this clause will lead to the termination of this agreement. 23. Miscellaneous. This Agreement and all rights and liabilities of the parties shall be governed by and construed and enforced in accordance with the substantive laws of the State of Pennsylvania applicable to agreements made and to be wholly performed therein without regard for conflict of laws principles. The venue for any action, suit or proceeding arising from or based upon this Agreement shall be the appropriate state and federal courts. Accordingly, the parties agree that any action, suit or proceeding arising from or based on this Agreement shall be commenced in and determined by those appropriate federal and state courts located in said state and county. If any provision of this Agreement shall for any reason be held invalid or unenforceable by a court of competent jurisdiction, all other provisions shall continue in full force and effect. The paragraph headings are included solely for the convenience of the parties and shall not be deemed to describe, limit, modify or in any way affect the scope or interpretation of the paragraph themselves. This Agreement sets forth the entire agreement between the parties, and no modification, amendment, waiver, termination or discharge of this Agreement or any provisions thereof shall be binding unless confirmed by a written instrument signed by both parties. No waiver of any provision of or default under this Agreement shall affect Publisher's right thereafter to enforce such provision or to exercise any right or remedy in the event of any other similar or dissimilar default.
IN WITNESS WHEREOF, the parties have duly executed this Agreement the day and year first above written. Each paraties’ signature indicates that they have read this agreement and will comply with all provisions within this agreement. “Acquisitions” (KINGSINGTON PUBLISHING, INC.) By: ____________________________________________ An Authorized Signatory Date: _______________________
“Publisher” (KINGSINGTON PUBLISHING, INC.) By: ____________________________________________ An Authorized Signatory “Co-Author” Date: _______________________
_______________________________________________ Soc. Sec.#: ______________________
By: _____________________________________________ Soc. Sec. #: _____________________________ Date: __________________________
Special Conditions or Comments:
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