AN ONLINE-ONLY ONE WEEK AUCTION
RM Sotheby’s concluded its second offering of Ornamental Online: Mascots, an exceptional collection of automotive mascots comprising 60 lots, on 10 December with $71,220 in total sales and enthusiastic bidding from multiple countries. Leading the sale was the Guerrier by Darel, ca. 1920s, which sold for $2,880.
BIDDERS’ CONDITIONS OF BUSINESS
1. Introduction.
1.1. Please ensure that you read and understand these Conditions of Business prior to bidding on a motor car or any other lot at this or any other RM Auctions, Inc. (“RMA”) or RM Sotheby’s (“RMS”) auction (RMA and RMS together are “RM”). Even though the RM Bidders’ Conditions of Business are generally standardized, there are unique jurisdictional requirements and terms that may not apply to every auction, and it is each Bidder’s responsibility to understand and review these Conditions of Business as they apply. By agreeing to these Conditions of Business, you are agreeing to be bound by these Conditions of Business for both RMS and RMA auctions. Please note that the Bidders’ Conditions of Business are subject to change from time to time, and it is each Bidder’s responsibility to apprise themselves of any changes to the Bidders’ Conditions of Business. Bidders are encouraged to contact RM’s Client Service department at clientservices@rmsothebys.com with any questions or concerns regarding these Bidders’ Conditions of Business.
1.2. RM’s contractual relationship with the Bidders are governed by:
1.2.1. These Bidders’ Conditions of Business;
1.2.2. The Bidders’ Conditions of Business displayed on RM’s website; and
1.2.3. In each case as amended by any notice or website update.
(Clauses 1.2 to 1.2.3 together are “Contractual Obligations”.)
1.3. As auctioneer, RM acts as the agent for the Consignor, and a sale contract is made directly between the Consignor and the Buyer.
1.3.1. Occasionally, RM may own a motor car or any other lot (and, in such circumstances, acts in a principal capacity as the Seller) and/or may have a legal, beneficial, or financial interest in a motor car or any other lot as a secured creditor or otherwise.
2. Bidder Due Diligence Responsibilities. The Bidder is responsible for any and all due diligence including but not limited to inspections and verification of the (i) condition, (ii) authenticity, (iii) completeness, (iv) statements made in reference to, and (v) any and all other matters regarding any motor car or any other lot offered in an RM sale (“Bidder Due Diligence”).
3. Twenty-Day Window for Rescission of Sale due to Material Misrepresentation.
3.1. RM will review concerns regarding material misrepresentations raised by the Buyer for 20 business days from the date of the auction, after which time all sales are considered “As Is” and “Where Is” as outlined in clause 4 below. Please send all concerns to legal@rmsothebys.com.
3.2. If it is found that the alleged material misrepresentation (that would not have been reasonably found through the Bidder Due Diligence) materially decreases the value or functionality of the motor car or any other lot, RM will work with the Buyer to reach a solution.
3.2.1. The Buyer agrees to indemnify, defend, and hold RM harmless from any claims that may be made with respect to any Buyer-alleged damages or liability, including but not limited to travel expenses, repair expenses, and inspection expenses in any way related to actions taken in accordance with clause 3.
(Clauses 3 to 3.2.1 together are “Twenty-Day Window”)
4. With the Exception of the Twenty-Day Window, All Sales Are “As Is” and “Where Is.” No warranties or representations of any type whatsoever are made by RM regarding any motor car or any other lot offered in an RM sale. Statements in catalogues, online content, pre-mailers, advertisements, brochures, signs, and window cards, as well as verbal statements made by auctioneers or auction staff, are based on statements and historical files, if any, collected from the Consignor and other third-party sources, and RM has no obligation to verify or authenticate any such statements. All motor cars or any other lots are sold as is, where is, with no representations or warranties, expressed or implied. THE CONSIGNORS AND RM DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, AS TO CONDITION, ORIGINALITY, OR AUTHENTICITY; ORIGIN OR PROVENANCE; PREVIOUS USE OR OWNERSHIP; MANUFACTURING OR RESTORATION PROCESSES; YEAR OR AGE; SERIAL NUMBER, MAKE, OR MODEL; OPTIONS AND TOOLS; ENGINE HOURS; AND MILEAGE OF ANY MOTOR CAR OR ANY OTHER LOT OR COMPONENT OF ANY MOTOR CAR OR ANY OTHER LOT, AND THEY SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. Services. RM agrees to act as an agent for the Bidders and provide auction services including but not limited to clerks, support staff, event advertising, and promotion. In connection with the auction, RM will have absolute discretion with regard to the motor car or any other lot or any RM auction as to (a) consulting any expert either before or after the sale, (b) researching provenance, (c) grouping and providing descriptions as may be appropriate, (d) marketing and promotion of the sale, and (e) any other services required to conduct the sale.
6. Bidding.
6.1. To bid at an RM auction, a Bidder must be at least 21 years of age with a valid form of government-issued identification and a credit card. For further details on requirements to bid, please contact a client services representative at clientservices@rmsothebys.com.
6.2. If a bid placed by another bidder exceeds your bid, you will be notified via the email address you provided during registration, and the webpage of the motor car or any other lot will indicate you have been outbid.
6.3. If a bid is placed within the final two minutes, the auction will be extended by an additional two minutes to prevent a Bidder from trying to place a high bid in the final moments of the auction (“Anti-Sniping Extension”).
6.4. The asking price, in the applicable currency for the auction, is determined by the increment as outlined below. If you type an amount that would result in an off-increment bid, your bid will be rounded down to the nearest on-increment bid. Please note that if you are currently the high Bidder, you may still increase your bid by placing another bid for a higher value.
• If your current bid is between 0 – 499, the minimum increment is 10;
• If your current bid is between 500 - 999, the minimum increment is 25;
• If your current bid is between 1,000 - 2,499, the minimum increment is 50;
• If your current bid is between 2,500 - 4,999, the minimum increment is 100;
• If your current bid is between 5,000 - 9,999, the minimum increment is 250;
• If your current bid is between 10,000 - 24,999, the minimum increment is 500;
• If your current bid is between 25,000 - 99,999, the minimum increment is 1,000;
• If your current bid is between 100,000 - 499,999, the minimum increment is 5,000;
• If your current bid is between 500,000 - 9,999,999, the minimum increment is 10,000; and
• If your current bid exceeds 10,000,000, the minimum increment is 20,000.
6.5. With the exception of clause 6.3, at auction, there is no “cooling-off period.” If you are awarded the final bid, ownership changes hands at the close of the lot ("Close of Lot”). You own the motor car or any other lot and are responsible for payment in full. No Bidder may retract a bid made during the sale for any reason.
6.5.1. To clarify, the term “Close of Lot” shall be defined as the time that the time-based auction expires if the reserve has been met and the Anti-Sniping Extension has not been utilized.
6.6. The Bidder is responsible for all risk of loss or damage and insurance immediately upon purchase of the motor car or any other lot.
6.7. RM reserves the right to reject any bid. The highest Bidder acknowledged by the auctioneer will be the Buyer. The auctioneer has absolute and sole discretion in the case of error or dispute with respect to bidding and, whether during or after the sale, to determine the successful Bidder, to re-open the bidding, to cancel the sale, or to re-offer and re-sell the motor car or any other lot in dispute. If any dispute arises after the sale, RM’s sale record is conclusive. RM is not responsible for any errors or omissions in connection with the calling/displaying/accepting of bids.
6.8. By participating in the sale, the Bidder represents and warrants that any bid placed by them, or on their behalf, is not the product of any collusive or other anti-competitive agreement and is otherwise consistent with federal and state antitrust law. RM may require such necessary financial references, guarantees, deposits, and/or such other security, at their absolute discretion, as security for any bid. Please bear in mind that RM is unable to obtain financial references over weekends or public holidays.
7. Purchase Price. The purchase price shall consist of the following:
7.1. the Hammer Price (defined below) of the motor car or any other lot, and
7.2. the applicable Buyers’ Premium (defined below).
(Clauses 7 to 7.2 together are “Purchase Price”)
8. Buyers’ Premium.
8.1. In addition to the Hammer Price, the winning Bidder is required to pay RM a percentage of the Hammer Price, which RM retains as the Buyers’ Premium for the purchase of each motor car or any other lot (“Buyers’ Premium”).
8.2. RMS North American auctions will have the following Buyers’ Premiums:
8.2.1. In the event of a final Hammer Price of US$250,000 and below on all motor car lots, RMS will receive a Buyers’ Premium of 12%.
8.2.2. In the event of a final Hammer Price above US$250,000 on all motor car lots, RMS will receive a Buyers’ Premium of 12% on the first US$250,000 and will receive a Buyers’ Premium of 10% on the Hammer Price above US$250,000.
8.2.3. Buyers of all non-motor car lots, including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, and clothing, are required to pay RMS a Buyers’ Premium of 20% on the Hammer Price of those particular lots.
8.3. RMA North American auctions will have the following Buyers’ Premiums:
8.3.1. RMA will receive a Buyers’ Premium of 10% on all motor car lots.
8.3.2. Buyers of all non-motor car lots, including but not limited to memorabilia, motorcycles, boats, trailers, jewelry, and clothing, are required to pay RMA a Buyers’ Premium of 20% on the Hammer Price of those particular lots.
9. Taxes.
9.1. The Buyer is responsible to pay all city, state, federal, provincial, territorial, and any and all other taxes due for which the Buyer does not qualify as exempt, subject to RM verification; proof of exemption is the Buyer’s responsibility. The Buyer is responsible for any applicable duty, import tariffs, charges, or any and all other required payments that are due upon the import of the motor car or any other lot to its final destination.
9.2. Although by no means an exhaustive list, please be aware of the tax scenarios below.
9.2.1. If the Buyer of a motor car or any other lot resides in an American state in which RM is registered to collect/remit sales tax, RM is required to collect/remit sales tax on the purchase of that motor car or any other lot. RM is registered to collect/remit sales tax in the following states: California, Florida, Indiana, Pennsylvania, Arizona, New York, and Michigan. RM reserves the right to collect/remit sales tax from residents from other jurisdictions if RM deems the collection/remittance of tax necessary.
9.2.2. If the Buyer of a motor car or any other lot resides in the EU, according to the EU VAT Directive, motor cars that have been in use for no more than 6 months or that have been driven for no more than 6,000 kilometers are considered new means of transport and will be subject to VAT. Payment of VAT is the responsibility of the Buyer. Where applicable, RM may take a deposit from the Buyer equal to the amount of VAT due, which will be refunded upon receiving satisfactory evidence that the motor car has been transported to and registered in another EU country.
10. No Legal or Tax Advice. This agreement is an important legal document. The Bidder acknowledges that the Bidder has had the opportunity to consult an attorney before signing this agreement and has signed this agreement after having the opportunity to consult with an attorney of their own choosing. Notwithstanding any references to any transactions or arrangements in this agreement, or any contemporaneous written, oral, or implied understandings of the Parties relating to the subject matter of this agreement, RM has not provided legal or tax advice or tax planning services to the Bidder or for the Bidder’s benefit in connection with the transactions contemplated by this agreement, and no one at RM has acted as the Bidder’s attorney or tax advisor. As a condition of bidding at an RM auction, it is the Bidder’s responsibility to satisfy themselves and comply with all applicable tax, duty, or any and all other payments associated with the purchase of a motor car or any other lot at an RM auction. A further condition of bidding at an RM auction is that the Bidder holds RM harmless from any and all tax or regulatory issues that arise due to Tax and Ownership Information (defined below) that RM provides.
10.1. In order to assist Bidders with this process, RM may provide information about the tax status of each motor car or any other lot, as well as any ownership or registration papers that will be supplied with the respective motor car or any other lot (“Tax and Ownership Information”); however, this information is being provided merely to assist Bidders in their determination of their own tax and regulatory responsibilities.
11. Payment.
11.1. Subject to fulfillment of the Contractual Obligations, at the Close of Lot, the contract between the Consignor and the Bidder is concluded.
11.2. The value of the last accepted bid upon the Close of Lot is the Hammer Price (“Hammer Price”).
11.3. Payment is due in full on or before 5:00 p.m. EST of the next business day (“Payment Deadline”), and payment is to be made to RM.
11.4. For any purchases under US$5,000, the Bidder acknowledges and agrees that his/her credit card on file at the time of registration will automatically be used as the payment method for the purchase of the motor car or any other lot and applicable Buyers’ Premium. Special payment arrangements can be made for multiple lot purchases, which the Bidder is welcome to discuss with an RM representative upon completion of the auction.
11.5. For final purchases exceeding US$5,000, all payments must be in the form of wire transfer unless other arrangements have been approved in advance.
11.6. RM is not obligated to release the motor car or any other lot to the winning Bidder until the winning Bidder has met all of the Contractual Obligations and paid the Purchase Price plus applicable taxes.
11.7. In the event that the winning Bidder does not pay any portion of the Purchase Price plus applicable taxes by the Payment Deadline, the Bidder agrees to and acknowledges the following:
11.7.1. RM has the sole discretion to cancel/rescind the sale of a motor car or any other lot and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission.
11.7.2. If RM elects to pay the Consignor any portion of the Purchase Price plus applicable taxes, RM shall have all of the rights of the Consignor to pursue the Buyer for any amounts paid to the Consignor, whether at law, in equity, or under these Bidders’ Conditions of Business. The Bidder hereby authorizes RM to charge the Purchase Price plus applicable taxes to the credit card that the Bidder has provided. If the Bidder’s credit card payment does not cover the Purchase Price plus applicable taxes, in addition to other remedies available by law, RM reserves the right to impose, from the Payment Deadline until the full Purchase Price plus applicable taxes has been paid by the Buyer, a late charge of 10% interest per annum on the (1) Purchase Price plus applicable taxes, (2) maximum published Sellers’ Commission, (3) Buyers’ Premium, (4) applicable expenses, (5) any collection costs, attorneys’ fees, and court costs incurred to enforce payment, and (6) other damages.
12. Reserves. Motor cars or any other lots not marked as “no reserve” (or similar) are subject to a reserve bid set by the Consignor. When a motor car or any other lot is sold subject to such a reserve bid, the auctioneer may bid on the Consignor’s behalf in an amount not to exceed the amount of the reserve bid.
13. Cancellation/Rescission of Auction. RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the auction and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission if RM believes the following events have occurred or have a reasonable probability of occurring:
13.1. Force Majeure events including but not limited to:
13.1.1. Any natural disaster, which despite reasonable efforts restricts RM from holding the auction; and
13.1.2. Any terrorist event, which despite reasonable efforts restricts RM from holding the auction.
13.2. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to hold an auction that necessitate a cancellation.
14. Cancellation/Rescission of Motor Car or Any Other Lot. RM will use reasonable efforts to avoid cancellation/rescission; however, RM has the sole discretion to cancel/rescind the sale of a motor car or any other lot and will not be liable to the Bidder for any losses or damages resulting from the cancellation/rescission if RM believes the following events have occurred or have a reasonable probability of occurring:
14.1. RM opines that the motor car or any other lot has been intentionally and materially misrepresented by the Consignor;
14.2. RM opines that physical damage to the motor car or any other lot, which cannot be sufficiently repaired prior to the auction, occurred after this agreement was signed;
14.3. RM is served with a lawsuit from a third party in relation to the motor car or any other lot;
14.4. RM faces significant reputational damages that would cause monetary damages for selling the motor car or any other lot;
14.5. Material issues regarding title, registration, or transfer of ownership that cannot be reasonably cured;
14.6. Material issues regarding the provenance, merchantability, or authenticity of the motor car or any other lot that cannot be reasonably cured;
14.7. Government/court actions, orders, injunctions, regulations, laws, or non-compliance with applicable rules, regulations, or laws to sell the motor car or any other lot at auction that necessitate a cancellation; or
14.8. If there are legitimate claims, accusations, notices, or similar communications made by the Buyer in regard to their purchase of a motor car or any other lot not being authentic, being misrepresented, having an encumbered title or registration, having undisclosed material issue, or having a similar claim, RM has the right to retain the Buyer’s funds on account and be the arbitrator as to the merit of the Buyer’s claims and to cancel the sale of the motor car or any other lot and reimburse the payment to the Buyer if RM deems the Buyer’s claims to be valid.
15. Online Services Are “As Is” and “As Available.”
15.1. Bidders may be able to bid via websites, applications, and tools (collectively “Services”).
15.2. RM tries to keep the Services safe, secure, and functioning properly, but RM cannot guarantee the continuous operation of or access to the Services. Bid update and other notification functionality may not occur in real time. Such functionality is subject to delays beyond RM’s control.
15.3. Bidders agree that they are making use of the Services at their own risk and that they are being provided to Bidders on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, RM excludes all expressed or implied warranties, terms, and conditions, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
16. Credit Card Hold and Pre-authorization. Please note that in order to register to bid at an RM sale, RM requires a hold and pre-authorization of US$500 to be placed on the Bidder’s credit card from the date of registration until the close of the auction (“CC Hold”). If the Bidder is not the winning Bidder of the motor car or any other lot, the CC Hold will be removed from the credit card in accordance with the Bidder’s specific credit card companies’ procedures. If the Bidder is the winning Bidder of the motor car or any other lot, the Bidder will be required to make payment to RM in accordance with clause 11 of these Bidders’ Conditions of Business.
17. Title Transfer.
17.1. If the Buyer of a motor car or any other lot resides in an American state, in an effort to ensure all titles are free and clear of liens or encumbrances, RM manages the process of title reassignment on behalf of the Buyer. Buyers will receive titles in the mail as soon as possible following the auction with a target of a maximum of 20 business days following the auction; however, please note that for reasons beyond RM’s control, including any delays in lien releases by lien holder(s) and/or delays by the Department of Motor Vehicles (or equivalent) in certain states, there are instances where the Buyer may not receive the title within 20 business days and, in those circumstances, RM will work to provide the titles to the Buyer as soon as possible. A US$75 administration fee (US$85 in the State of California) will be assessed per motor car purchased, but this fee will not apply to nostalgia lots.
17.1.1. If a motor car or any other lot is rendered “Title in Transit,” it is unlikely that the Buyers will receive the title in the mail within 20 business days following the auction; however, RM will work to provide the titles to the Buyer as soon as possible.
17.1.2. The Buyer acknowledges that delays in transferring titles due to delays at government Motor Vehicle departments happen from time to time, and the Buyer will hold RM harmless from any allegations of damages arising out of government delays.
17.2. If the Buyer of a motor car or any other lot resides outside the United States, RM will use its best efforts to assist with the transfer of ownership; however, it is the responsibility of the Buyer to transfer ownership in compliance with their jurisdictional rules and regulations.
18. Removal of Purchased Motor Car or Any Other Lot.
18.1. All purchased motor cars or any other lots must be removed by the Buyer from either the auction site or the secure storage facility by the next business day by 5:00 p.m. EST (“RM Removal Deadline”).
18.2. If the RM Removal Deadline is not met, the Buyer will be charged a daily storage fee of US$30 per day (“Storage Fee”) until the motor car or any other lot is removed.
18.3. Please note that the Buyer is required to insure their motor car or any other lot while the motor car or any other lot is being stored on their behalf.
18.4. If the motor car or any other lot is not removed for one calendar year from the RM Removal Deadline and other arrangements have not been made, RM has the right to (i) auction the motor car or any other lot, (ii) retain its standard Buyers’ Premium, Storage Fee, and other applicable expenses, and (iii) return the remaining payment to the Buyer.
19. Legal Action. Any dispute, claim, or controversy arising out of or relating to these Bidders’ Conditions of Business or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Bidders’ Conditions of Business to arbitrate, shall be determined by arbitration in Detroit, MI, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
20. Packing and Shipping. RM is not responsible for the acts or omissions in our packing or shipping of purchased motor cars or any other lots or of other carriers or packers of purchased motor cars or any other lots, whether or not recommended by RM. Packing and handling of purchased motor cars or any other lots are at the entire risk of the Buyer.
21. Data Use. The Bidders agree to allow RM to use their personal information in accordance with RM’s Privacy Policy. RM uses your personal information to provide services specifically tailored toward your requirements and to treat you in a personal way; to fulfill your agreements regarding the consignment and purchase of items at RM auctions and private sales; to provide you with information on upcoming sales; to carry out analysis and market research; to undertake targeted online advertising; to send status updates and service communications; to improve our websites, products, and services; to provide payment services; and for management and administrative purposes. The full Privacy Policy can be found at the bottom of the RM website homepage under the Privacy & Terms tab. If you wish to ask any questions regarding the use of your personal information, to request a full accounting of what personal information is on file with RM, or to unsubscribe to any services or purge your personal information from RM’s systems, please email privacy@rmsothebys.com.
22. Anti-Money Laundering. The Bidder agrees to provide all information and assistance reasonably requested by RM to comply with RM’s internal Anti-Money Laundering process and to comply with any and all Anti-Money Laundering Laws and Regulations in force in the jurisdiction in which the auction is held.
23. Entire Agreement. This document shall be binding upon the parties and their respective heirs, personal representatives, and assigns. Except as otherwise expressly provided herein, these Conditions of Business shall not be modified, except in writing. Whenever used in these Conditions of Business, as the contract requires, the singular number shall include the plural, the plural number shall include the singular, the masculine gender shall include the feminine and neuter, the feminine gender shall include the masculine and neuter, and the neuter gender shall include the masculine and feminine.
24. Translations.
24.1. If there is a discrepancy, contradiction, or question of interpretation regarding enforceability between the English version of the Bidders’ Conditions of Business and a version of the Bidders’ Conditions of Business produced in a language other than English, the English version of RM’s Bidders’ Conditions of Business will supersede.
24.2. If there is a discrepancy, contradiction, or question of interpretation in a description for a motor car or any other lot, online or otherwise, between the English version of the description and a version produced in a language other than English, the English version will supersede.
25. European Union Returns and Cancelations. Under EU rules, RM will within a two-year time period repair, replace, reduce the price, or give the Buyer a refund if goods the Buyer bought turn out to be faulty or do not work as advertised. Further, if a Buyer bought a product online or outside a shop, the Buyer also has the right to cancel the order and return the order within 14 days, for any reason and without a justification. If an EU citizen Buyer exercises their right to repair, replace, reduce, refund, or cancel, any and all shipping, taxes, and duty are the responsibility of the Buyer.
FOR RM CALIFORNIA BUYERS SPECIFICALLY:
26. Notice to Buyers as Required by the California Department of Motor Vehicles Code Section 11729. Failure of RM to comply with the terms of this agreement may be in violation of statute, which could result in criminal or administrative sanctions, or both. If you feel RM has not complied with the terms of this agreement, please contact an investigator of the Department of Motor Vehicles.
27. Contract Cancellation Agreement. In the event of a successful bid, if a motor car or any other lot has a combined hammer price and Buyers’ Premium equaling less than US$40,000, under the Car Buyer’s Bill of Rights (FFVR 35), RM is required to offer a 2-day contract cancellation option agreement to the successful Buyer. If the Buyer exercises this contract cancellation option, RM is obligated to return any funds paid by the Buyer and cancel the sale. If the sale is canceled, RM is under no obligation to pay the Consignor for the motor car or any other lot, and the motor car or any other lot will be deemed to have not sold.
28. Motor Car or Any Other Lot Exhaust Warning. Operating, servicing, and maintaining a passenger vehicle or off-road vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area, and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www.P65Warnings.ca.gov/passenger-vehicle.
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