Makeoutclub

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Please read and accept the Terms of Service below.
1. ACCEPTANCE OF TERMS

MakeOutClub ("MOC", "our", "us" or "we") welcomes you. MOC provides its Service (defined below) to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time. Your continued of the Service shall be deemed to be acceptance by you of the revised TOS, which supersedes and replaces any earlier TOS. By using the Service, you agree to be bound by this TOS, whether or not you are a registered member of MOC. In addition, when using any MOC owned, operated, or affiliated service, you are subject to any posted guidelines or rules applicable to such service, which may be updated from time to time. All such guidelines or rules are hereby incorporated by reference into this TOS.


2. SERVICE DESCRIPTION

MOC provides users with access to an online independent music and subculture community, providing a rich collection of resources, which may include, various communications tools, forums, personalized content, and services through a network of properties that may be accessed through various mediums or devices now known or hereafter developed ("Service"). You understand and agree that the Service may include certain communications from MOC, such as service announcements and administrative messages, and that these communications are considered part of MOC membership and you will not be able to opt-out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the Service, including, without limitation, the release of any new MOC properties, will be subject to this TOS. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including, without limitation, any fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service. You must be 13 years of age or older to use the Service. Any registration, or use of the Service, by anyone under 13 is unauthorized, unlicensed, and in violation of this TOS.


3. YOUR REGISTRATION OBLIGATIONS/ PASSWORD AND SECURITY

Use of and membership in the Service is void where prohibited. In consideration of your use of the Service, you represent and warrant that you are of legal age to form a binding contract and are not a person barred from receiving the Service under applicable laws. You also represent and warrant that you will (i) provide true, accurate, and complete information about yourself when registering for the Service ("Registration Data"), (ii) promptly update your Registration Data and any other information you provide to us to keep it true, current, accurate, and complete, (iii) maintain the security of your account password and identification, and (iv) be responsible for all activities that occur with your password and for any actions that take place using your account. If you provide any information that is untrue, inaccurate, not current or incomplete, or MOC believes that such information is untrue, inaccurate, not current or incomplete, MOC has the right, but not the obligation, to suspend or terminate your account, and refuse any and all current or future use of the Service (or any portion thereof). You agree to immediately notify us in writing of any unauthorized use of your password or account or any other breach or potential breach of security.


4. FEES

MOC reserves the right to charge for the Service and to change its fees from time to time in its discretion. If MOC terminates your Membership because you have breached this TOS, you shall not be entitled to a refund of the unused portion of any fees. 


5. MOC PRIVACY POLICY

We care about your privacy. Registration Data and certain other information about you is subject to MOC’s privacy policy located at http://www.makeoutclub.com/moc/privacy-policy. You understand that by using of the Service, you consent to the collection and use as set forth in our privacy policy of this information, including, without limitation, the transfer of this information within the United States and/or other countries for storage, processing and use by MOC and its affiliates.


6. MEMBER CONDUCT

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not MOC, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. MOC does not control the Content posted by users through the Service, and as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will MOC be liable in any way for any Content, including, without limitation, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available through the Service.

You agree to not use the Service to:

a.	upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
b.	promote Content that is false or misleading, or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
c.	harm minors in any way;
d.	impersonate any person or entity, including, without limitation, a MOC official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e.	create a false identity on the Service;
f.	upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
g.	forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
h.	upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
i.	engage in or facilitate any commercial endeavors except those that are expressly permitted or approved by MOC;
j.	upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas, if any, that are expressly designated for such purpose;
k.	upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
l.	disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
m.	interfere with, disrupt, or create an undue burden on the Service or servers or networks connected to the Service, or violate any requirements, procedures, policies or regulations of networks connected to the Service;
n.	violate any applicable local, state, national or international law, statute, directive, ordinance, treaty, contract, or regulation; 
o.	provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the United States Immigration and Nationality Act;
p.	"stalk" or otherwise harass another; and/or
q.	collect or store personal data about other users in connection with the prohibited conduct and activities set forth above.

You acknowledge that MOC may or may not pre-screen Content, but that MOC and its designees shall have the right, but not the obligation, in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Service. Without limiting the foregoing, MOC and its designees shall have the right to remove any Content that violates this TOS or is otherwise objectionable as determined by MOC and its designees in their sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including, without limitation, any reliance on the accuracy, completeness, or usefulness of such content. In this regard, you acknowledge that you may not rely on any Content created by MOC or submitted to MOC, including, without limitation information in any MOC message boards and in all other parts of the Service.
You acknowledge, consent and agree that MOC may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:  (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your request(s) for customer and/or technical service; or (e) protect the rights, property or personal safety of MOC, its users and the public.
You understand that the technical processing and transmission of the Service, including, without limitation, your Content, may involve (a) transmissions over various networks, and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by MOC and/or content providers who provide content to the Service. You agree not to attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited. 


7. REPRESENTATIONS 

You represent, warrant, and covenant that: (a) you have the right, authority, and any required permission and consent to enter into this TOS; (b) the Content posted by you on or through the Service:  (i) is owned by you, or you otherwise have the right to grant the license set forth in this TOS; (ii) does not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity; (iii) does not breach any duty toward, or rights of, any person or entity, including, without limitation, rights of publicity and/or privacy; and (iv) is not false, deceptive, misleading, unethical, defamatory, libelous, or threatening; and (c) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Service, MOC Content, Content, or any aspect or portion thereof, including, without limitation, source code or algorithms. 


8. PROPRIETARY RIGHTS IN THE SERVICE

The Service contains Content of MOC ("MOC Content"). The Service and MOC Content are proprietary to MOC and are protected by applicable state, federal, and international intellectual property laws, and MOC retains all rights, title, and interests in the Service and MOC Content, together with all derivative works, modifications, enhancements, and upgrades, but excluding user Content.  MOC owns all rights in the Service and MOC Content, and grants you a limited, revocable, nonsublicensable, and nonexclusive license to reproduce and display the MOC Content (excluding any software code) solely for your personal, noncommercial use of the Service. Such license does not include use of any data mining, robots or similar data gathering or extraction methods.  Except for Content posted by you, you may not copy, modify, edit, translate, publish, broadcast, transmit, distribute, download, perform, display, or sell any Content appearing on or through the Service, including, without limitation, MOC Content. You agree not to access the Service by any means other than through the interface that is provided by MOC for use in accessing the Service. Any rights not expressly granted in this TOS are reserved by MOC, and all implied licenses are disclaimed.


9. INTERSTATE NATURE OF COMMUNICATIONS ON THE MOC NETWORK

When you register with MOC, you acknowledge that in using the Service to send electronic communications (including, without limitation, email, sending messages to MOC members, uploading Content, and other Internet activities), you will be causing communications to be sent through MOC's computer networks, portions of which are located in the United States and abroad. As a result, and also as a result of MOC's network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature may result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by using the Service, you acknowledge that use of the Service results in interstate data transmissions.


10. INTERNATIONAL USE

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with any trade sanction, import, or export regulation that applies to your use of the Service, and agree to obtain all necessary licenses to use, export, re-export, or import the Service as expressly permitted by this TOS. 


11. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION IN THE SERVICE

MOC does not claim ownership of Content you submit or make available for inclusion in the Service. With respect to Content you submit or make available for inclusion in the Service, you grant MOC a worldwide, royalty-free, perpetual, irrevocable, and nonexclusive license to use, distribute, reproduce, modify, edit, adapt, translate, reformat, recompile, publicly perform and publicly display such Content (in whole or in part) on the Service in connection with providing and promoting the Service, and to incorporate such Content, in whole or in part, into other works in any format or medium now known or later developed.  You agree to pay for all royalties, fees, and any other monies owing any entity or person by reason of any Content posted by you to or through the Service.


12. SUBMISSIONS

By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to MOC, including, without limitation, through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) MOC is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) MOC shall be entitled to use or disclose, or choose not to use or disclose, such Contributions for any purpose, in any way, in any medium worldwide, now known or later developed; (d) MOC may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of MOC without any obligation of MOC to you; and (f) you are not entitled to any compensation or reimbursement of any kind from MOC under any circumstances.


13. INDEMNITY

You agree to indemnify, defend, and hold harmless MOC and its subsidiaries, affiliates, officers, directors, agents, employees, consultants, partners, licensors, attorneys, and third party service providers (collectively, “MOC Entities” and individually, a “MOC Entity”) from any and all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with Content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of this TOS, or your violation of any rights of another. You agree to be solely responsible for defending any Claim against a MOC Entity, subject to such MOC Entity’s right to participate with counsel of its own choosing, and for payment of any and all judgments, settlements, damages, losses, liabilities, costs, and expenses, including, without limitation, reasonable attorneys’ fees, resulting from all Claims against a MOC Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a MOC Entity without its prior express written consent.


14. NO RESALE OF SERVICE

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.


15. GENERAL PRACTICES REGARDING USE AND STORAGE

You acknowledge that MOC may establish general practices and limits concerning use of the Service, including, without limitation, the maximum number of days that messages, postings or other uploaded Content will be retained by the Service, the maximum disk space that will be allotted on MOC's servers on your behalf, and the maximum number of times and duration you may access the Service in a given period of time. You agree that MOC has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that MOC reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that MOC reserves the right to modify these general practices and limits from time to time with or without notice.


16. MODIFICATIONS TO SERVICE

MOC reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that MOC shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. 


17. TERM/TERMINATION

This TOS shall remain in full force and effect while you use the Service or are a member. You may terminate your membership at any time, for any or for no reason, by following the instructions on the website. MOC may terminate your membership and/or use of the Service at any time for any or for no reason. You agree that MOC may, without prior notice, immediately terminate your MOC account and access to the Service. Cause for such termination shall include, without limitation, (a) violation of this TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you, (d) discontinuance or material modification of the Service or any part thereof, (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. You agree that all terminations are made in MOC's sole discretion, and that MOC shall not be liable to you or any third party for any termination of your account, or access to the Service.  Sections 4 through 30 survive any termination of this TOS.


18. DEALINGS WITH ADVERTISERS

Your correspondence or business dealings with, or participation in promotions of, advertisers, if any, found on or through the Service, including, without limitation, payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that MOC shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.


19. THIRD PARTY WEBSITES AND CONTENT

The Service may provide, or third parties may provide, links to other Internet website or resources. You acknowledge and agree that MOC is not responsible for the availability of such external website or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such website or resources. You further acknowledge and agree that MOC shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such website or resource.


20. USER DISPUTES 

You are solely responsible for your interactions with other MOC users. You acknowledge and agree that MOC reserves the right, but has no obligation, to monitor disputes between you and other users.


21. DISCLAIMER OF WARRANTIES

a.	Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. The MOC entities expressly disclaim all warranties of any kind, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and noninfringement.
b.	The MOC entities make no warranty that (i) the service will meet your requirements; (ii) the service will be uninterrupted, timely, secure or error-free; (iii) the results that may be obtained from the use of the service will be accurate or reliable; (iv) the quality of any products, services, information or other material purchased or obtained by you through the service will meet your expectations; (v) the service will store or deliver any user communication or personalization settings, and (vi) any errors in the service will be corrected.
c.	Any material downloaded or otherwise obtained through the use of the service is accessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
d.	No advice or information, whether oral or written, obtained by you from MOC or through or from the service shall create any warranty not expressly stated in this TOS.
e.	A small percentage of users may experience epileptic seizures when exposed to certain light patterns or backgrounds on a computer screen or while using the service. Certain conditions may induce previously undetected epileptic symptoms even in users who have no history of prior seizures or epilepsy. If you, or anyone in your family, have an epileptic condition, consult your physician prior to using the service. Immediately discontinue use of the service and consult your physician if you experience any of the following symptoms while using the service: dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions.


22. LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law, any liability of the moc entities in connection with the agreement, under any cause of action or theory, shall be strictly limited to the lesser of the amount already paid by you to us for membership in the service in the six-month period prior to the event giving rise to the claim or $500.  You expressly understand and agree that MOC entities shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses (even if MOC has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions, account, or data; (iv) statements or conduct of any third party of the service; or (v) any other matter relating to the service. 


23. EXCLUSIONS AND LIMITATIONS

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of sections 21 and 22 may not apply to you.


24. NO THIRD-PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in this TOS, there are no third-party beneficiaries to this TOS.


25. NOTICE

MOC may provide you with notices, including, without limitation, regarding changes to this TOS and/or its privacy policy, by email, regular mail or postings on the Service. As set forth above, it is your responsibility to ensure that your contact information (including, without limitation, your email and addresses) is current and correct, and you will promptly notify us in writing of any changes to such information.  All notices to MOC shall be sent via recognized overnight courier or certified mail, return receipt requested, to:  General Counsel, MakeOutClub, 811 Wilshire Blvd., Suite 1015, Los Angeles, California  90017.


26. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT

MOC respects the intellectual property of others, and we ask you to do the same. MOC may, in appropriate circumstances and in its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide MOC's Copyright Agent the following information:

a.	an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b.	a description of the copyrighted work or other intellectual property that you claim has been infringed;
c.	a description of where the material that you claim is infringing is located on the MOC website;
d.	your address, telephone number, and email address;
e.	a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f.	a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

MOC's agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
Copyright Agent
c/o MakeOutClub / 3jane digital holdings, inc.
2118 Wilshire Blvd. #275
Santa Monica, CA 90403
Fax: (213) 623-4997
Email: copyright@makeoutclub.com


27. CHOICE OF LAW

This TOS and the relationship between you and MOC shall be governed by the laws of the State of California without regard to its conflict/choice of law principles. You agree to submit to the personal and exclusive jurisdiction of the courts located within Los Angeles County, California. 


28. STATUTE OF LIMITATION/TIME TO FILE AN ACTION

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Program or this TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

29. GENERAL INFORMATION

This TOS constitutes the entire agreement and understanding between you and MOC,  governs your use of the Service, and supersedes any prior or contemporaneous representations, claims, communications and agreements in all forms of media, written or oral, between you and MOC regarding the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other MOC services, affiliate services, third-party content or third-party software. The failure of MOC to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give such invalid provision similar economic effect, and the other provisions of this TOS remain in full force and effect.  You agree that your MOC account is nontransferable and any rights or content in your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.  We and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this TOS, or the rights or obligations hereunder, in whole or in part, to any person or entity.  We shall have no liability under this TOS by reason of any failure or delay in the performance of our obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond our reasonable control.  Headings used in this TOS are for reference purposes only. MOC may change this TOS and/or its privacy policy at any time, notwithstanding Section 25, above, by email, regular mail or postings on the Service, and such revised TOS and/or privacy policy shall supersede and replace the earlier TOS and/or privacy policy.  Any use by you or anyone acting on your behalf of the Service after such notice shall be deemed to be acceptance by you of the revised TOS and/or privacy policy.  You understand and agree that services and obligations to be performed by MOC hereunder may be performed by MOC Entities. 


30. VIOLATIONS

Please report any violations of this TOS to: tosabuse@makeoutclub.com


31. ELECTRONIC SIGNATURES EFFECTIVE

a. If this TOS is an electronic contract, then this Section applies in order to set out the legally binding terms of your use of the Service, including, without limitation, the MOC website. You accept this TOS and the terms, conditions, and notices contained or referenced herein by clicking on the “I Accept” button in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. When you click on the “I Accept” button during enrollment, you also consent to having this TOS provided to you in electronic form. b. You have the right to receive this TOS in non-electronic form and may request a non-electronic copy of this TOS before or after you electronically sign this TOS by submitting a request to us as specified below. You also have the right, at any time, to withdraw your consent to have this TOS provided to you in electronic form. Should you choose to withdraw your consent to have this TOS provided to you in electronic form, we will discontinue your then-current username and password. This means that you will not have the right to use the Service unless and until we issue you a new username and password. We will only issue you a new username and password after we receive a signed copy of a non-electronic version of this TOS, which we will send to you upon written request. To withdraw your consent and/or request a non-electronic copy of this TOS, please send a letter and self-addressed stamped envelope to the applicable address set forth in Section 25, above. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Prior to such effective date, this TOS electronically signed by and provided to you will remain legally valid and enforceable. c. In order to access and retain this electronic TOS, you must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). Please print a copy of this TOS for your records. To retain an electronic copy of this TOS, you may save it into any word processing program. We will notify you of any changes in the hardware or software requirements needed to access and/or retain this TOS that create a material risk that you will not be able to continue to access and/or retain this electronic TOS.


32. LAST UPDATED

This TOS was last updated:  April 23, 2008.
I have read and agree to the Terms of Service set forth above.
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