EXHIBIT 10.2
2003 CERTIFIED INSTRUCTOR and SALES/COMPENSATION AGREEMENT
REPRESENTATIVE NAME
ADDRESS
THIS AGREEMENT ("Agreement") is made and entered into this ____ day of
__________, 2003, in Xxxx County, Illinois by and between NATURAL GOLF SCHOOLS
CORPORATION (hereinafter NGSC) and REPRESENTATIVE in a first instance; and
concurrently between NATURAL GOLF EQUIPMENT CORPORATION (hereinafter NGEC) and
REPRESENTATIVE in a second instance. The term "COMPANY" shall be used to refer
to both NGSC and NGEC, or their parent company, NATURAL GOLF CORPORATION.
WHEREAS, COMPANY has developed a unique method of golfing, golf instruction, and
golf products; and
WHEREAS, REPRESENTATIVE is an independent contractor in the business of
providing golf instruction and selling golf products; and
WHEREAS, REPRESENTATIVE wishes to offer for sale and receive compensation from
NGSC for the providing of golf instruction and wishes to offer for sale and
receive compensation from NGEC for sales of COMPANY products;
NOW THEREFORE, IN CONSIDERATION of the foregoing, and with the mutual
undertakings of this Agreement, and other good and valuable consideration,
receipt and sufficiency of which are hereby acknowledged by the parties herein,
the following agreement is made:
ARTICLE 1 - DEFINITIONS
1.1 "Confidential Information." Confidential Information shall include, but is
not limited to, the following types of information and other information of
similar nature (whether or not reduced to writing and whether or not expressly
marked "Confidential"): All Product specification, manufacture and design
information, all information related to the golf techniques and Methodology of
COMPANY; Customer names, contact information, buying history, skill level and
evaluation, and other information relating to COMPANY'S Customers, COMPANY'S
Customer lists, concepts, concept documentation, "know-how" and training manuals
and materials, custom club fitting systems, procedures, processes, techniques,
drills, data bases, trade secrets; business models, strategies and financial
information; customer development, marketing and sales techniques; and all other
valuable or unique information and techniques acquired, developed or used by
Company relating to its business, Methodology, Products, operations, suppliers,
employees and Customers, regardless of whether such information is in writing,
on computer disk, on disk drive or in any other form, and all other information
designated or treated as Confidential Information by Company. Customer
information is one of Company's most valued trade secrets.
a. Includes Third-Party Information. "Confidential Information"
shall also include any information described above which
Company obtains from another party and which Company treats as
proprietary or designates as confidential information, whether
or not owned by Company.
b. Excludes Information in the Public Domain. "Confidential
Information" shall not include information which
Representative can show by clear and convincing evidence was
(1) in the public domain at the time of the disclosure to
REPRESENTATIVE by the Company; (2) information which after
disclosure to REPRESENTATIVE becomes part of the public domain
by dissemination by a third party and other than by an act or
omission of REPRESENTATIVE; (3) information which
REPRESENTATIVE can demonstrate by documentary evidence to have
been in REPRESENTATIVE'S possession at the time of disclosure
to REPRESENTATIVE and not acquired directly or indirectly from
Company; (4) information which is subsequently disclosed or
made available to REPRESENTATIVE with an obligation of
confidence by a third party having a bona fide right to
disclose or made available such information; and (5)
information which has been made public by way of sales
brochures, Company newsletters, public speeches by officers of
Company, or information disclosed to the media by officers of
Company.
1.2. Customer: "Customer" herein means any person, corporation or entity to
which Products have been sold or instruction in the Methodology provided, or any
person, corporation or entity which REPRESENTATIVE knows or should have known
has been contacted by any representative of COMPANY. "Customers" shall include
all customers or clients of the Company, whether or not the aforesaid Customers
are attributable to REPRESENTATIVE's efforts or contacts.
1.3. Methodology. "Methodology" herein means the palm-grip, single-plane,
three-lever, facing the ball at impact approach to golf.
1.4. Product(s). "Product(s)" as used herein, means any item or service offered
or sold by the COMPANY, NGSC and/or NGEC, including but not limited to all golf
equipment designed and manufactured or assembled for COMPANY, and golf
instruction or contests in the Methodology.
ARTICLE 2 - TERM OF THIS AGREEMENT
2.1 Initial Term. This Agreement shall be in effect until March 31st of the next
calendar year following the date REPRESENTATIVE signed this Agreement, unless
otherwise provided for in this Agreement.
[Example 1-if REPRESENTATIVE signs the Agreement on June 1, 2002, this
Agreement will expire on March 31, 2003; Example 2-if REPRESENTATIVE signs the
Agreement on February 1, 2002, the Agreement will expire on March 31, 2003].
2.2. Subsequent Terms. The Agreement shall be renewed automatically for one-year
terms on the March 1st anniversary date as set forth above unless COMPANY
provides written notice to REPRESENTATIVE that the Agreement will not be renewed
30-days prior to the anniversary date.
ARTICLE 3 - REPRESENTATIVE'S OBLIGATIONS
3.1. Right to Sell Products. During the term of this Agreement, REPRESENTATIVE
shall have the right to sell COMPANY Products. Unless otherwise specified in
writing, all Product sales are to be processed through COMPANY.
3.2. Conduct. REPRESENTATIVE shall exhibit professional conduct and appearance
in the performance of his or her duties at all times, and conduct him or herself
in such a manner so as to at all times maintain the goodwill of the COMPANY and
the safety of the public and customers, and in accordance with the Certified
Instructor Manual or such other specific guidelines as COMPANY may establish
from time to time, in its sole discretion.
3.3. Sales of COMPANY Products. During the term of this Agreement REPRESENTATIVE
shall refrain from the sale or recommendation of traditional or competing golf
clubs, training aids, swing methodologies or equipment to Company's customers
that compete with Company's Product line. REPRESENTATIVE shall not solicit
Customers or prospective Customers for any non-COMPANY products or services,
whether or not golf related. Representatives, who work for driving ranges and
golf courses where Natural Golf is taught, will not be in violation of paragraph
3.3 because of customer purchases for non-competing products made at their Pro
shop.
3.4. No Conflicts. REPRESENTATIVE represents that he or she does not now, and
will not, during the term of this Agreement, manufacture golf clubs, or advise
or consult for any company (other than COMPANY) that manufactures golf clubs or
provides golf instruction. REPRESENTATIVE is not now, and will not become during
the term of this Agreement, a stockholder of more than five percent (5%)
interest in any company (other than COMPANY) which manufactures golf clubs or
provides golf instruction.
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3.5. No Agency. The parties hereto are independent contractors. Nothing herein
shall be construed to create the relationship of principal and agent between the
parties.
3.6. Independence and Discretion. REPRESENTATIVE is solely responsible for, and
has complete discretion, as to all aspects of operating his business, including
the marketing and sale of COMPANY'S Products, except as otherwise provided
herein.
ARTICLE 4 - SALES AND COMPENSATIONS
4.1. "Sale" or "Sell" defined. REPRESENTATIVE is not required to maintain an
inventory of Product for sale. For the purposes of this Agreement, a Sale shall
occur when REPRESENTATIVE places an order on behalf of Customer for a Product
with COMPANY and pays the COMPANY for the Product.
4.2. Compensation. Subject to all terms of this Agreement including the
provisions set forth in the Paragraph entitled "Termination," REPRESENTATIVE
shall be entitled to compensation in an amount set forth by the Company for all
Sales of COMPANY Products when COMPANY has received payment for the Product from
the customer. COMPANY specifically reserves the right to change or adjust the
compensation structure from time to time, with reasonable notice to
REPRESENTATIVE. COMPANY is under no obligation to provide names or "contacts" to
REPRESENTATIVE.
4.3. Return of Products. When Products are returned, compensation previously
paid to REPRESENTATIVE for sale of the Product shall be deducted from current
compensation owed to REPRESENTATIVE.
4.4. Prices Subject to Change. COMPANY reserves the right at any time to change
Product prices, or to discontinue the sale of Products. COMPANY shall use
reasonable efforts to provide notice to REPRESENTATIVE of any such changes to
the extent it is possible to do so.
ARTICLE 5 - COMPANY'S PROPERTY RIGHTS
5.1. Property Rights. All rights, title and interest in COMPANY's intellectual
property, Methodology, trade names and trademarks is and shall at all times
remain with COMPANY or its related entities. No license or interest in any of
the foregoing is granted to REPRESENTATIVE hereunder.
5.2. Use of Trade Names. REPRESENTATIVE shall not use COMPANY'S corporate, firm
or trade name(s), or any COMPANY trademarks, without annually receiving
COMPANY'S prior written approval.
ARTICLE 6 - OPTIONAL CERTIFICATION AS INSTRUCTOR
6.1. REPRESENTATIVE. REPRESENTATIVE may obtain training and certification in the
COMPANY'S Methodology, as follows:
a. Certified Instructor. A REPRESENTATIVE may receive training
and be certified as a Certified Instructor upon completion of
initial training in the Methodology. Certified Instructors may
hold themselves out only as Certified Instructors. Fees for
the initial training in the Methodology are established by
NGSC and are available upon request, but subject to change on
sixty (60) days notice.
6.3. In order to maintain the NGSC's high standards for competency and
proficiency in demonstrating and instructing the COMPANY Methodology, NGSC in
its discretion, reserves the right to implement verbal, written and/or golf
instruction and playing tests and require REPRESENTATIVE'S passage of the same
as a condition for renewal of this Agreement and Representative's maintenance of
a particular certification status.
6.4 Determination Date. The Determination Date shall be the periodic date(s) set
by NGSC on which Instructors or Instructor candidates shall be required to meet
then-current requirements for Certified Instructor.
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ARTICLE 7 - COMPANY'S RIGHTS AND DUTIES
7.1. Answer Requests for Technical Information. COMPANY shall use reasonable
efforts to comply with reasonable requests to provide technical information
concerning the Products to REPRESENTATIVE.
7.2. Right to publish Instructor's Name. Upon execution hereof, REPRESENTATIVE
hereby grants COMPANY the unrestricted right to utilize REPRESENTATIVE'S name,
likeness, biographical data, golf facility information, and certification status
in COMPANY's advertising, marketing and promotional material and in any list of
COMPANY representatives. REPRESENTATIVE shall provide COMPANY with such
information in a timely fashion.
7.3. No Other Obligations. Other than efforts to answer reasonable requests for
technical information about the Products as set forth in Paragraph 7.1. above,
COMPANY has no obligation to provide, and will not provide, support or
assistance of any kind to REPRESENTATIVE. THIS IS NOT A FRANCHISE AGREEMENT.
ARTICLE 8 - NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
8.1. Non-Disclosure. REPRESENTATIVE shall not disclose, at any time during or
after the termination of this Agreement, any Confidential Information except to
the extent disclosure is required by law. This obligation of non-disclosure of
Confidential Information shall continue to exist for as long as such information
remains Confidential Information.
8.2. Return Materials. Any and all books, records, documents, papers, computer
disks, videos, or other materials received by REPRESENTATIVE from the COMPANY or
containing Confidential Information or other proprietary information or trade
secrets of the COMPANY, including any copies thereof, shall at all times be and
remain the property of the COMPANY and shall be returned immediately to the
COMPANY upon termination of this Agreement, or upon the written request of the
COMPANY.
8.3. Acknowledgement. REPRESENTATIVE expressly acknowledges that the
Confidential Information is essential to the success of the business of the
COMPANY, and that it is the policy of the COMPANY to maintain as secret and
confidential the Confidential Information, and that the restrictions on the use
or disclosure of the Confidential Information after the term of this Agreement
shall not inhibit or in any way affect or limit REPRESENTATIVE'S ability to earn
a livelihood.
ARTICLE 9 - NON COMPETITION
9.1. Covenant Not to Solicit. REPRESENTATIVE shall not solicit COMPANY'S
Customers, employees or REPRESENTATIVES for a period of two years following
termination of this Agreement.
9.2. Covenant Not to Compete and Acknowledgement by Instructors. Any Certified
or Master Instructor shall not teach the Methodology following the termination
of this Agreement. All such Instructors hereby acknowledge and represent that
they can teach other methods of golf instruction other than the Methodology, and
that they had no knowledge of the Methodology prior to exposure to the
Methodology by COMPANY.
9.3. Modification Allowed if Required. In the event any covenant made in Article
8 (Non-Disclosure of Confidential Information) and this Article 9 are more
restrictive than permitted by applicable law, such covenant shall be limited to
the extent to which it is so permitted.
ARTICLE 10 - TERMINATION BY COMPANY
10.1. Termination. COMPANY may terminate this Agreement immediately with written
notice to REPRESENTATIVE upon the occurrence of any of the following:
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a. Bankruptcy or Insolvency. Any proceeding is instituted by or
against REPRESENTATIVE under the federal Bankruptcy Code or
any similar state insolvency law, or REPRESENTATIVE makes an
assignment for benefit of REPRESENTATIVE'S creditors, or if a
receiver is appointed for all or any portion of
REPRESENTATIVE'S business; or
b. Attempted Assignment. REPRESENTATIVE attempts to assign this
Agreement without COMPANY'S prior written consent; or
c. Damage to Goodwill. REPRESENTATIVE (or any principal
stockholder, partner, officer or manager of REPRESENTATIVE, if
REPRESENTATIVE is an entity other than a natural person) is
convicted of a crime which in COMPANY'S opinion may adversely
affect the operation of business of REPRESENTATIVE or the
name, goodwill or reputation of COMPANY or the Products.
d. Failure to Appear. REPRESENTATIVE fails to timely commence,
complete or appear at a scheduled school, lesson, clinic, golf
show, club demo day, exhibition or other event in which
REPRESENTATIVE is acting as an ambassador of COMPANY, without
excusable justification as determined by COMPANY. Further,
except for circumstances of excusable justification,
REPRESENTATIVE shall reimburse COMPANY for any damages it may
incur as a result of REPRESENTATIVE'S Failure to Appear,
including but not limited to claims for reimbursement of
tuition and/or expenses of customers/attendees and facility
fees.
e. Breach of Agreement. REPRESENTATIVE fails to observe or
perform his or her obligations under this Agreement.
ARTICLE 11 REPRESENTATIVE'S OBLIGATIONS UPON TERMINATION
11.1. Obligations upon Termination. In the event that REPRESENTATIVE's
relationship with COMPANY terminates for any reason, REPRESENTATIVE agrees:
a. No disparagement. To conduct himself or herself in such a
manner as to maintain the goodwill of COMPANY, including
without limitation, to avoid making disparaging remarks
regarding COMPANY or its Customers and to conduct himself or
herself in such a manner as to bring no harm, embarrassment,
disgrace or other negative effect on COMPANY.
b. Refer Calls. To promptly refer all telephone calls and
correspondence related to COMPANY's Customers, Products, and
Methodology to the COMPANY;
c. Pay Company Expenses. To reimburse any expense incurred by
COMPANY in retrieving Confidential Information or other
property of COMPANY from REPRESENTATIVE, including without
limitation, any costs of litigation, including costs and
reasonable attorney's fees.
11.2. Compensation Upon Termination. Upon termination of this Agreement for any
reason, REPRESENTATIVE shall be entitled to compensation, net of returns, only
on orders for Sales of Products that have been paid for by Customer to the
COMPANY on or before the effective date of the termination of the Agreement.
With respect to any Sales providing for more than one shipment of Products,
REPRESENTATIVE shall be entitled to compensation only on those goods paid for by
customer to company prior to the effective date of termination of the Agreement.
ARTICLE 12- TERMINATION BY REPRESENTATIVE
12.1. Allegations Of Breach. Upon any written notice by REPRESENTATIVE of any
alleged material breach by COMPANY hereunder, COMPANY shall have thirty (30)
days therefrom to cure any such material breach. Failure to cure such breach
within the 30-day period (or any extension thereof agreed to by both parties in
writing) shall result in termination of this Agreement upon the expiration of
the cure period.
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ARTICLE 13 - INDEMNIFICATION
13.1. Indemnification of REPRESENTATIVE. COMPANY shall defend, indemnify, or
settle, and hold REPRESENTATIVE harmless for liability resulting from
REPRESENTATIVE'S sale of COMPANY Products, but only if the Products and all
component parts thereof are manufactured or assembled by COMPANY, and remain in
the form in which they were originally manufactured or assembled, and provided
that COMPANY is promptly notified of the claim in writing, and is given complete
authority and information required for the defense of same. Provided, however,
that COMPANY shall not be responsible for any cost, expense, fee, or compromise
incurred or made by REPRESENTATIVE without COMPANY'S prior written consent.
ARTICLE 14 - DISCLAIMER OF ALL WARRANTIES
14.1. DISCLAIMER OF WARRANTIES. COMPANY PROVIDES NO WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THIS AGREEMENT, PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER, PERFORMANCE OF ITS OBLIGATIONS GENERALLY, THE PRODUCT, THE
METHODOLOGY, OR ANY OTHER WARRANTY OF ANY KIND OR NATURE. COMPANY HEREBY
DISCLAIMS AND REPRESENTATIVE WAIVES TO THE FULLEST EXTENT PERMITTED ANY AND ALL
OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR
WRITTEN, OF ANY KIND OR NATURE) INCLUDING, BY WAY OF EXAMPLE, AND NOT
LIMITATION, WITH RESPECT TO THE PRODUCTS AND METHODOLOGY, PERFORMANCE UNDER THIS
AGREEMENT OR ANY PART THEREOF, OR PERFORMANCE GENERALLY, ALL WARRANTIES OF
RESULTS, COMMERCIAL PRACTICALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS OR
SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON
TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE)
AND WHETHER SUCH WARRANTIES ARE ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR
USAGE IN THE TRADE, BY COURSE OF DEALING, BY STATUTE, REGULATION, OTHER LAW OR
OTHERWISE. IN ADDITION, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY OR
REPRESENTATION TO REPRESENTATIVE OR TO ANY PERSON OTHER THAN REPRESENTATIVE.
ARTICLE 15 - LIMITATION OF COMPANY'S LIABILITY
15.1. DAMAGES LIMITED TO REFUND. FOR ANY BREACH WHATSOEVER BY COMPANY, COMPANY'S
LIABILITY FOR ANY DAMAGES OR INDEMNITY FOR THESE BREACHES SHALL IN NO EVENT
EXCEED THE AMOUNTS PAID TO COMPANY BY REPRESENTATIVE, IF ANY, FOR TRAINING UNDER
THIS AGREEMENT.
15.2. NO OTHER DAMAGES. EXCEPT AS PROVIDED IN THE ARTICLE ENTITLED "INDEMNITY",
IN THE EVENT OF ANY BREACH BY COMPANY WHATSOEVER, WHETHER OF THIS AGREEMENT OR
ARISING GENERALLY FROM THE RELATIONSHIP OF THE PARTIES OR OTHERWISE, WHETHER IN
CONTRACT, TORT, OR BY VIRTUE OF STATUTE, REGULATION OR OTHER LAW COMPANY'S TOTAL
LIABILITY FOR ANY DAMAGES OR INDEMNITY SHALL IN NO EVENT EXCEED THE AMOUNT
DESCRIBED IN PARAGRAPH 15.1. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED
BY ANY DELAYS. IN NO EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN
CONTRACT OR IN TORT, BY STATUTE OR OTHERWISE, AND WHETHER ARISING FROM THIS
AGREEMENT OR ARISING GENERALLY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE OR
NEGLIGENT MISREPRESENTATION, SHALL COMPANY BE LIABLE FOR DIRECT, PROXIMATE,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE
WHATSOEVER, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, DAMAGES ARISING FROM
LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR OTHER INJURY, NOTWITHSTANDING THE
FACT THAT COMPANY MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPANY SHALL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY
OTHER PARTY.
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ARTICLE 16 - GENERAL PROVISIONS
16.1. Waiver. Waiver by COMPANY of any provision of this Agreement shall not
constitute a waiver by COMPANY of the same or any other provision of this
Agreement on a subsequent occasion.
16.2. No Assignment. REPRESENTATIVE shall not assign or transfer any rights
under this Agreement without the prior written consent of COMPANY.
16.3. Entire Agreement. This Agreement contains the entire Agreement of the
parties, supersedes any prior agreement between the parties, and shall not be
altered or amended except by an instrument in writing signed by both parties
hereto.
16.4. Partial Invalidity. Should any paragraph, subparagraph, sentence, phrase
or clause of this Agreement be held invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of any other
part or remainder of this Agreement, and shall be modified or deleted to conform
with applicable laws of the State of Illinois.
16.5. Survival Beyond Termination. Articles 8 and 9 of this Agreement shall
survive termination of the Agreement.
16.6. Injunctive Relief. REPRESENTATIVE acknowledges that any violation by
REPRESENTATIVE of its responsibilities, covenants and representations set forth
in this Agreement in Articles 8 (Non-Disclosure of Confidential Information) and
9 (Non-Competition) would result in damage to COMPANY that is largely intangible
but nonetheless real, and that is incapable of complete remedy by an award of
damages. Accordingly, any such violation shall, in addition to any other
remedies at law or equity, give COMPANY the right to a court-ordered injunction
or other appropriate order to specifically enforce those provisions.
REPRESENTATIVE agrees to pay COMPANY any reasonable expenses, including but not
limited to attorney fees, incurred in obtaining such specific enforcement (in
addition to any other relief to which COMPANY may be entitled).
16.7. Notice. All notices and other communications herein provided for shall be
sent and delivered by certified mail, with the proper postage prepaid, to the
parties at the following addresses until such time as any part shall give the
other party notice of the change of address:
IF TO COMPANY: IF TO REPRESENTATIVE
PRESIDENT
NATURAL GOLF CORPORATION
0000 Xxxx Xxxxxxxx Xxxxxx Xx.
Xxxxx 000
Xx. Xxxxxxxx, XX 00000-0000
16.8 Applicable Law. This Agreement has been executed in Xxxx County, Illinois,
and shall be governed by and interpreted under the laws of the State of
Illinois. All parties to this Agreement expressly submit to this jurisdiction.
16.9. Exclusive Jurisdiction and Venue. Exclusive jurisdiction and venue for any
litigation at all related to this Agreement, directly or indirectly, based upon
contract, tort, or other theory of law, shall lie in the Circuit Court of Xxxx
County, Illinois, or, if in federal court, in the U.S. District Court for the
Northern District of Illinois, Eastern Division; provided, however, any
injunction obtained by COMPANY pursuant to a breach of this Agreement may be
enforced in any court in the United States.
16.10. Authority. REPRESENTATIVE acknowledges and represents that it has read,
understands, and agrees to be bound by all provisions, covenants and
representations in this Agreement, and that the person executing this Agreement
on its behalf is authorized to do so.
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Executed on the dates written below, to be effective as of ____________, 2003.
NGSC REPRESENTATIVE
By:
Its:
Date: Date:
NGEC REPRESENTATIVE
By:
Its:
Date: Date:
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