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Definitions
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Agreement, Parties and Sub-contracting
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Dangerous Goods
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Presentation of Goods by the Customer
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Loading and Unloading
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Commencement of Company’s Obligations
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Failed Delivery
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Storage and Technical Services
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Charges and Payment
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Liability (and Limitations to) and Insurance
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Lien
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Right of Disposal
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Indemnity to the Carrier
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Fraud
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Time Limits for Claims
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Special Instructions
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Identity of Customer
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Termination
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Force Majeure
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General Average
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Law and Jurisdiction
1. Definitions/Interpretation/Application
In these Conditions the following meanings shall apply:
Charges
the price that shall be payable by the Customer to the Company in respect of Services provided, whether by agreement or by operation of these Conditions;
Company
Clipper 玩嘉电竞 plc or such subsidiary or group company as has contracted to provide Services to the Customer;
Conditions
these terms and conditions of business;
Consignee
the Person to whom the Company has contracted to deliver Goods which are the subject of carriage;
Contract
any contract for the provision of any Services, whether written and/or oral;
Customer
the Person who contracts for the Services of the Company and/or the Person who instructs the Company to provide the Services;
Dangerous Goods
all goods defined as dangerous by the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) and/or the International Maritime Dangerous Goods Code (IMDG Code) and/or the Technical Instructions for the Safe Transport of Goods by Air (ICAO Technical Instructions)
Goods
any property or related documentation in respect of which the Company has contracted to provide Services and/or that has come into the Company’s possession in the course of its business;
Limit
means a limit per tonne gross weight of that part of the Goods in respect of which a claim arises.
Loss
includes (without limitation) loss (including theft with or without the involvement or complicity of the Company’s servants or agents), destruction, damage, unavailability, contamination, deterioration, delay, non-delivery, mis-delivery, unauthorised delivery, non-compliance with instructions or obligations, or incorrect advice or information;
Person
natural person(s) or any body or bodies corporate;
Transport Unit
packing case, pallet(s), container, trailer, tanker, or any other device used whatsoever for and in connection with the carriage and/or storage of Goods;
Owner
the Owner of the Goods or Transport Unit and any other Person who is or may become interested in them or otherwise have title to sue in respect of them;
Services
any Services (including Technical Services) that may be provided by the Company in respect of Goods, whether provided by the Company or by its Sub-contractors including but not limited to
carriage (domestic and international), storage, “picking and packing”, re-packaging, re-working, quality control, garment cleaning and pricing, labelling and pricing and licensing of warehouse space;
Sub-contractors
Any third party who may perform part or all of the Services, whether or not instructed directly by the Company and whether or not performing such Services as a principal or an agent;
Storage
any period other than when the Goods are in the course of carriage, including when the Company or its Sub-contractors are working on the Goods;
Technical Services
Services other than the provision or procurement of carriage and/or warehousing services
Transit
any period during which the Goods are in the course of carriage;
Writing
an e-mail properly addressed and not returned, a facsimile properly transmitted, a letter received or another comparable communication received by the intended recipient;
2. Agreement, Parties and Sub-contracting
2.1 The Company is not a common carrier and will accept Goods and provide Services strictly on the terms of these Conditions and at its sole discretion. These Conditions shall apply to the exclusion of all other terms, including any upon which the Customer may otherwise purport to rely. These Conditions, or parts thereof, shall not apply to the extent that they attempt to derogate from the provisions of the Convention on the Contract for the International Carriage of Goods by Road in circumstances where that Convention is of compulsory application to the Contract. In such circumstances, the balance of these Conditions will apply insofar as they do not seek to derogate from that Convention.
2.2 By tendering Goods to the Company the Customer accepts these Conditions and agrees to be bound by them. There shall be no variation to these Conditions unless in writing and signed on behalf of the Company by a Director.
2.3 The Customer warrants that he is either the Owner of the Goods or is authorised by the Owner to accept these Conditions on the Owner’s behalf and any authorities and warranties herein are provided by the Customer on its own behalf and on behalf of the Owner.
2.4 The Company shall be entitled to provide any of the Services as a principal, or to procure any part or all of the Services as an agent for the Customer and/or Owner. Where goods are transported by sea or air, the Company shall in no circumstances (except in the case of short sea ferry crossings which form part of a larger movement) undertake such carriage as a principal except where it issues
(i) a Bill of Lading; or (ii) an Airway Bill which in either case shall declare the Company to be the carrier.
2.5 Where the Company provides Services as a principal it shall have full liberty to perform such services itself or employ Sub-contractors to provide part or all of the Services.
2.6 Where the Company acts as an agent the Customer authorises the Company to enter into contracts on behalf of the Customer and/or Owner on any terms and trading conditions as the Company may deem appropriate in all of the circumstances.
2.7 Whether or not the Company procures Services as an agent or provides Services as a principal it reserves to itself full liberty as to the means, route and procedure to be followed in the performance of any Services.
2.8 The Company contracts for itself and as an agent of and trustee for its servants, agents and Sub-contractors and such parties shall have the benefit of the Contract and collectively and together with the Company shall be under no greater liability to the Customer or Owner or any other party than is the Company hereunder.
2.9 In all and any dealings with HM Revenue and Customs the Company shall act on behalf of the Customer and/or Owner and is deemed to be appointed as their Direct Representative only as defined by Council Regulation 2193/92.
3. Dangerous Goods
3.1 Dangerous Goods must be declared by the Customer to the Company prior to their being tendered to the Company. If the Company agrees to accept them they must be classified, packed and labelled in accordance with any applicable statutory regulations that would have application to any/all activity that the Goods will undergo. The Customer must provide to the Company all documentation as may be required by statutory regulation to accompany the Goods.
3.2 The Customer and Owner jointly and severally shall indemnify the Company from and against all actions, costs, claims, damages and expenses suffered by the Company as a result of the provision of Services in relation to Dangerous Goods, whether declared or not.
4. Presentation of Goods by the Customer
4.1 The Goods shall be presented to the Company securely and properly packed and labelled for handling and/or working by the Company and in compliance with any applicable statutory regulations, recognised standards and best practice such that they will remain at all times in a condition to be safely handled, stored and or carried and so as not to cause injury, damage, contamination or deterioration (or the possibility of them) to any Person, premises, equipment or to any other items in any way.
4.2 Any Transport Unit supplied by the Customer for the purpose of enabling the fulfilment of the intended Services, whether or not Goods shall be already stowed thereon, shall be in good condition and suitable for the provision of those intended Services.
4.3 The Customer shall advise the Company in writing (otherwise than by instructions on the Goods/packaging themselves), prior to presentation of the Goods, of any relevant matters including any special precautions necessitated by the nature, weight, or condition of the Goods. The Goods themselves shall also be marked with any necessary instructions so that such instructions are clearly visible.
5. Loading and Unloading
5.1 The Company reserves the right to refuse to accept any Goods that it considers to be incorrectly or inadequately packaged and/or labelled or in any way unsuitable for the provision of the anticipated Services. Acceptance of Goods shall not mean that the Company considers that the Goods are suitably packaged and/or labelled, which shall at all times be the responsibility of the Customer.
5.2 Otherwise than at the Company’s own premises (or in the case of trans-shipment at any intermediate premises) or where loading and/or unloading has specifically been included in the Services provided under the Contract:-
5.2.1 the Company shall be under no obligation to provide personnel other than the vehicle driver or any equipment or apparatus necessary for unloading or loading unless provision of the same has been specifically agreed between the parties; and
5.2.2 loading and unloading shall be undertaken on behalf of the Customer at the Customer’s and Owner’s risk and expense immediately upon arrival of the Company’s vehicle and without delay; and
5.3 If so required, the Company shall sign a receipt for Goods consigned to it. Such document shall not be evidence of their condition, or of the correctness of the matters declared on the document other than the number of packages and the burden of proving the condition or weight of Goods or any other matter declared on the receipt shall rest with the Customer. With regard to the number of packages the signed receipt shall, in the absence of contrary agreement, be prima facie evidence of the number of packages loaded.
6. Commencement of Company’s obligations
6.1 Other than where the Company agrees to load the goods, the Company’s obligations in respect of Goods shall commence when the Company or its Sub- contractor takes possession of the Goods. Where the Company has agreed to load Goods then its obligations in respect of the Goods will commence when it starts to load the Goods.
6.2 The Company’s obligations shall end when the Company and/or its Sub- contractor ceases to be in possession of the Goods in accordance with the terms of the Contract.
6.3 The Company shall under no circumstances (including but not limited to circumstances arising from their own negligence or wilful default) have any liability in respect of the Goods prior to the period provided for in clause 6.1 or subsequent to the period provided for in clause 6.2.
7. Failed Delivery
7.1 If for whatever reason delivery of the Goods cannot be made at the nominated address the Company shall, unless instructed by the Customer to deliver to an alternative address, return the Goods to its premises whereupon they shall be stored in accordance with these Conditions.
7.2 In the event of storage in accordance with clause 7.1 the Company shall be entitled to payment of storage charges, at the rate agreed with the Customer or if there is no such agreed rate then at the Company’s current rate for ad hoc storage.
7.3 In the event of delivery to an alternative delivery address in accordance with clause 7.1 the Company shall be entitled to payment of additional carriage charges, at the rate agreed with the Customer or if there is no such agreed rate then at the Company’s current rate for ad hoc carriage.
8. Storage and Technical Services
8.1 Where Goods are stored by the Company they may be collected by the Customer at a time agreed. The Company may give 7 days written notice (or in the case of perishable goods 3 days notice) to the Customer that the goods must be removed from the Company’s premises.
8.2 By prior arrangement and subject to written agreement on pricing and the scope of the Technical Services the Company shall carry out miscellaneous services in respect of Goods.
8.3 Where the Company has been requested to do so in writing and has confirmed in advance and that it is able and willing to do so, the Company shall carry out quality checks on Goods, by reference to the Customer’s written instructions and specification (including but not necessarily limited to specified British Standards). The Company shall not be responsible for checking Goods unless it has confirmed to the Customer in advance and in writing that it is able and willing to carry out the requested work.
8.4 Without prejudice to clause 10 the Company shall have no liability whatsoever or howsoever arising for faults or defects in Goods the nature of which the Company was not instructed to identify, or those which would not be reasonably apparent on examination or which were present in the conforming sample provided by the Customer.
8.5 Where the Company is requested to provide a garment pressing service the Customer warrants that the Goods to be pressed are suitable in all respects for steam tunnel pressing, hand pressing, bagging, stain removal and other relevant processes.
8.6 The Company reserves the right to refuse to process any Goods that breach the requirements of clause 8.5.
8.7 If the Customer delays in collecting, accepting for re-delivery or issuing instructions for delivery of Goods in respect of which the Company has supplied Technical Services the Company shall be entitled to payment of storage charges, at the rate agreed with the Customer or if there is no such agreed rate then at the Company’s current rate for ad hoc storage.
8.8 Time shall not be the essence in relation to the Technical Services and the Company shall have no liability in respect of delay in the provision of the Technical Services.
9. Charges and Payment
9.1 Charges in respect of the Services shall be as agreed with the Customer. In the absence of any such agreement the Charges shall be at the Company’s current standard rates or alternatively at a reasonable rate.
9.2 In respect of Goods which are to be the subject of carriage, the Charges shall be deemed earned when carriage commences, whether or not delivery is in fact made. Otherwise, Charges shall be deemed earned upon provision of the
Services provided, or each severable part thereof. Where goods are being stored Charges shall be deemed earned on a daily basis.
9.3 In the absence of credit terms agreed in writing by the Company the Charges shall be payable on presentation of the Company’s invoice. Invoices will be rendered weekly, or as otherwise agreed in writing by the Company.
9.4 Any credit facility provided is strictly on terms that:-
9.4.1 where there is any breach of that credit facility of whatsoever nature, it may be withdrawn by written notice to the Customer at any time and with immediate effect, at the Company’s sole discretion and without requirement on the Company’s part to provide any explanation or justification for such withdrawal. Delay by the Company in enforcing this right or in seeking payment shall not waive any right whatsoever;
9.4.2 in the event of the instigation of any steps by or against the Customer pursuant to the insolvency provisions of the Insolvency and/or Companies Acts (or similar provisions) the credit facility shall be automatically withdrawn without the need for any notice;
9.4.3 upon withdrawal of the credit facility all Charges and invoices shall become immediately due and payable, regardless of what may be stated on the face of the Company’s invoices or other agreement with the Customer.
9.5 The Charges shall be payable without deduction or deferment and the Customer shall not be entitled to withhold payment in whole or in part on the grounds that it has a claim, counterclaim or set-off against the Company. The fact that the Company may previously have allowed such a set-off shall not in any way be a waiver of the Company’s right to enforce this clause.
9.6 In the event that the Company’s Charges are not paid by the due date then the Company shall be entitled to claim interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time).
9.7 The Customer shall be liable to pay demurrage for the detention of any Transport Unit not belonging to the Customer or Owner beyond the period usually required, or otherwise agreed.
9.8 The Company shall be entitled to retain and be paid brokerages, commissions, allowances and other remuneration customarily retained by, or paid to, carriers and freight forwarders.
10. Liability (and Limitations to) and Insurance
10.1 The Company does not insure the Goods.
10.2 The Company will accept liability for Loss arising from negligence or wilful act or default of the Company, its servants or agents (acting in furtherance of their duties as servants or agents) or Sub-contractors (acting in furtherance of their duties as Sub-contractors) but always subject to the provisions of clauses 10.3,
10.4 and 10.5.
10.3 In no case shall the Company be liable for any loss of profit, market, income or savings, wasted expenditure, the consequences of delay or deviation or indirect or consequential loss howsoever caused, including by negligence or wilful act or default.
10.4 In respect of claims for Goods which have been lost or which have been damaged other than where an increased Limit is agreed in accordance with clause 10.5.1, the liability of the Company (including inter alia any liability in respect of duties and taxes) shall not exceed the Limit, being a sum calculated at a rate of £1,300 per tonne of gross weight of the Goods actually lost or damaged whilst in Transit at the time they were lost or damaged or at a rate of £100 per tonne gross weight of the Goods actually lost or damaged if they were not in Transit when lost or damaged. If there is any uncertainty about whether they were in Transit at the relevant time it shall be assumed that they were not.
10.5.1 In respect of specified Goods the Customer may nominate an increase in the Limit at clause 10.4 as an amount per tonne weight. Such request must be in writing stating the increased Limit and the nature and maximum value of the specified Goods, including duty and taxes. The Limit nominated by the Customer shall apply from confirmation by the Company that it accepts the Limit nominated by the Client in respect of any cause of action arising thereafter. It is a condition of the Contract and the increase in the Limit that the Customer pays the Company’s additional costs in insuring against its potential liability up to the increased Limit, and/or to the extent that the Company elects to carry the risk itself, its extra charge equivalent to the estimated or likely cost of such insurance. For the avoidance of doubt, the Company shall always retain the right to refuse to agree any proposed amendment to the Limit.
10.5.2 Unless and until a higher Limit has been fixed under clause 10.5.1 and continues in effect, the Limit shall be £1300 sterling per tonne or £100 sterling per tonne as applicable.
10.6 The Company’s liability for any claim, other than one for Goods which have been lost or which have been damaged shall not exceed a maximum of £10,000 sterling.
10.7 The Company shall not be liable for any Loss to the extent that it is caused or contributed to by a breach of any of the Customer’s obligations, warranties or conditions in these conditions, or by any of the circumstances by virtue of which the Company is relieved of its obligations under clause 18.
11.1 The Company shall have a general lien on all Goods in its possession, custody or control for all sums due at any time to the Company from the Customer and/or Owner on any account whatsoever, whether relating to Goods belonging to, or Services provided by or on behalf of the Company to the Customer or Owner. The Company shall be entitled to payment of Charges in respect of storage for the period that Goods are detained under this lien. Nothing herein shall affect, release or diminish the Company’s common law rights to exercise a lien.
11.2 The Company shall have the right to give notice under any agreement where warehouse space is licensed to a Customer and take possession of any property in the area so licensed at its total discretion for the purposes of exercising a lien pursuant to 11.1. This right shall only arise when the Customer is in breach of its terms of payment under clause 9.
12. Right of Disposal
12.1 In the event that:-
(i) sums owing to the Company in respect of which a lien has been exercised remain unpaid; or
(ii) the Company has Goods in its possession, custody or control of which the Customer is unable or unwilling to collect or take delivery,
then the Company shall be entitled to sell or dispose of or deal with such Goods as agent for and at the expense of the Customer and/or Owner. Further, the Company shall be entitled to apply the proceeds in or towards the payment of all sums owing to the Company from the Customer and/or Owner of the Goods, including but not limited to any sum claimed pursuant to a lien and any costs, including professional fees, incurred by the Company in exercising a lien and in realising the value of the Goods.
12.2 Upon accounting to the Customer for the net proceeds as described in clause 12.1 the Company shall be discharged of any liability whatsoever in respect of the Goods.
12.3 In exercising the right of disposal in clause 12.1 the Company shall do what is reasonable to obtain value of the Goods. The Company shall use reasonable endeavours to give reasonable notice to the Customer and in the case of Goods consigned to the Company for carriage the Shipper and Consignee, if different to the Customer, prior to any sale.
13. Indemnity to the Carrier
13.1 The Customer and the Owner, jointly and severally, shall indemnify the Company against:
(a) all liabilities and costs incurred by the Company (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses, professional fees and loss of or damage to the carrying vehicle, premises and to other goods) by reason of any breach of warranty or condition, error, omission, mis-statement or misrepresentation by the Customer or Owner or by any servant or agent of either of them, insufficient or improper packing, labelling or addressing of the Goods or fraud;
(b) all claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence or wilful conduct) by whosoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods and claims made on the Company by HM Revenue & Customs in respect of dutiable Goods consigned in bond) in excess of the liability of the Company under these Conditions in respect of any loss or damage whatsoever to, or in connection with, the Goods whether or not caused or contributed to directly or indirectly by an act, omission, neglect, default or other wrongdoing on the part of the Company, its servants agents or Sub-contractors;
(c) any claims in the nature of general average or salvage in respect of Goods by any Person made against the Company
14. Fraud
The Company shall not in any circumstances be liable in respect of Goods where there has been fraud on the part of the Customer or Owner, or the servants or agents of either, in respect of the Goods, unless the fraud has been contributed to by the complicity of the Company or of any servant of the Company acting in the course of his employment.
15. Time Limits for Claims
15.1 Any claim against the Company governed by these Conditions must be made in writing and received by the Company within 7 days of the date upon which the Goods were delivered, or where there was no delivery within 7 days of the date upon which the Goods should have been delivered. Any claim not so notified shall be deemed waived and absolutely barred, except where the person claiming can show that it was impossible for him to comply with this time limit and that the claim was made as soon as it was reasonably possible to do so. The fact that the person claiming states not to have knowledge of this time limit shall not alone be a valid reason for non-compliance.
15.2 Without prejudice to clause 15.1 the Company shall in any event be discharged from all liability whatsoever and howsoever arising in respect of any Goods or Services unless suit be issued and served upon the Company within nine months from the date of the event or occurrence giving rise to the cause of action against the Company.
16. Special Instructions
16.1 The Company shall endeavour to comply with any special instructions concerning the conditional delivery or release of goods (such as but not limited to against payment or against surrender of a particular document).
16.2 Where the Company accepts instructions from the Customer to collect freight, duties, charges, dues or other expenses from the Consignee or any other Person the Customer shall nonetheless be responsible to pay the Charges, whether or not the instructed sums have been collected by the Company and regardless of whether that shall be by reason of the Company’s error, omission or default (including its negligence).
16.3 In no circumstances shall the Company’s liability in respect of a breach of its obligations arising from instructions accepted in accordance with clauses 16.1 and
16.2 exceed the limits set-out in clause 10.
17. Identity of Customer
The Customer may give written authority for the Goods or any part to be transferred to the account of another party on condition that before the effective date of the transfer, the other party notifies the Company in writing that it is to become the Customer and is bound by these Conditions and by any notice given under them and will pay the Company’s Charges for the period after the effective transfer date. The Customer will pay the Charges for the period until the later of the effective transfer date or receipt of an acceptance by the Company of the other party’s written notification. The Goods remain subject to any lien which applies at the time of transfer.
18. Termination
18.1 The Contract may be terminated forthwith by either party by written notice to the other party in the event of:
18.1.1 a serious breach by the other party of the terms of the Contract: or
18.1.2 any distress or execution being levied upon any of the other party’s goods or the other party offering to make any arrangement with its creditors or committing an act of bankruptcy or any petition in bankruptcy being presented against the other party or the other party being unable to pay its debts as they fall due or (being a corporate body) a resolution or petition to wind-up the other party being passed or presented or a receiver, administrative receiver or manager being appointed over the whole or any part of the other party’s business or assets or the other party suffering any analogous proceedings under foreign law.
18.2 The Contract may be terminated forthwith by written notice from the Company to the Customer in the event of the failure by the Customer to make punctual
payment to the Company of any payments owed under the Contract.
18.3 Upon notice of termination under this clause 18, all sums due in relation to the Services shall be immediately due and payable to the Company. In addition to the sums specified above, the Company shall be entitled to all sums invoiced to the Customer on or prior to the giving of such notice notwithstanding that such sums may be payments in advance.
18.4 Termination of this Contract shall not affect the rights and remedies of the Company arising prior to termination.
19. Force Majeure
The Company shall not be liable for any non-performance, part performance, defective performance or delay in performance of its obligations under the Contract due directly or indirectly to any Act of God, actions or regulations of government, strike, riot, lock-out, fire, lightning, aircraft, explosion, flooding, civil commotion , acts of terrorism, outbreak of hostilities (whether or not war is declared), seizure or forfeiture under legal process, malicious mischief, failure of or delay in third party supply or any other cause beyond the control of the Company. In the event that any of the above mentioned events renders the performance of the Contract impossible, the Company shall be released from its obligations under this Contract and the Customer shall forthwith pay to the Company all arrears of sums due under the terms of this Contract.
20. General Average
Where liability arises in respect of claims of a general average nature in connection with the Goods, the Customer shall promptly provide security to the Company, or to any other party designated by the Company, in a form acceptable to the Company.
21. Law and Jurisdiction
21.1 All relations and Contracts arising as a consequence of a Contract entered in accordance with these Conditions shall be governed by English law and the Courts of England shall have exclusive jurisdiction for determining any dispute.
21.2 Where, for whatever reason, effect would not be given to clause 21.1 then the Courts of England shall remain a competent jurisdiction agreed by the parties for the resolution of any dispute. Insofar as proceedings are brought in England English Law will remain the Law of the contract.
