General Terms & Conditions
In this Service Agreement ("Agreement"),"Customer," User, "you" and "your" refer
to each customer or user and Pool.com, "we," "us" and "our" refer to Pool.com Inc.
This Agreement explains our obligations to you, and your obligations to us, in relation
to your use of our services.
By selecting Pool.com service(s) you have agreed to establish an account with us
for such services. When you use your account or permit someone else to use your
account to purchase or otherwise acquire access to additional service(s), or to
modify or cancel such service(s) (even if we were not notified of such authorization),
this Agreement covers any such service or actions. Any acceptance of your application(s)
for our services and the performance of our services will occur at our offices in
26 Auriga Drive, Ottawa, ON, Canada, the location of our principal place of business.
For all Pool.com services provide, the Terms and Conditions as described in this
section (GENERAL TERMS & CONDITIONS) will apply.
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Pool.com offers domain backorders, pre-orders, alerts and other services to its
customers. After you have successfully backordered a domain through Pool.com, we
will attempt to secure that backordered domain if it subsequently becomes available
for public registration. There is no initial fee for placing a backorder and you
will only be charged if Pool.com is successful in securing such domain on your behalf
and, if applicable, you are successful in winning the auction with respect to the
domain. Current fees for successful backorder registrations and other services,
if applicable, are stated in our FAQs.
Successful domain registrations may end up at any of our registrar partners. In
order to maximize the chance of registration success, we leverage a network of third
party registrars. The backordered domain may therefore be registered through any
one of these partner registrars, and we therefore do not guarantee that the registration
will occur at any particular registrar. Subject to registry and/or registrar requirements
(usually a 60 day wait period), you may subsequently transfer any backordered domain
to a registrar of your choice. You must carefully review the terms and conditions
of the registrar that successfully acquired the domain, and such terms and conditions
are incorporated herein by reference.
Successful backorders will be registered at the registry for a one-year term or
such longer minimum term as required by the registry. Registration fees for such
initial registration term are included in your Pool.com fee.
Pool.com will use its commercially reasonable efforts to register a backordered
domain on your behalf through one of our registrar partners. However, we do not
guarantee the successful acquisition or registration of any domain.
Furthermore, we do not guarantee that, if a particular registrar successfully registers
a backordered domain, such registration will be made on your behalf (even if such
registrar is a current or past partner of Pool.com). In the event that Pool.com
is successful in acquiring a backordered domain, Pool.com will conduct an auction
and the domain will be registered on behalf of the highest bidder in such auction.
Please see Section 3 below for more information on auctions.
Due to the high costs incurred by Pool.com and its partners in searching for and
obtaining domains, we are unable to make a refund following a successful registration
on your behalf. You may cancel a backorder for a particular domain at any time prior
to its successful registration on your behalf except between 1:45 p.m. EST and 4:00
p.m. EST on the day the domain is set to delete by logging into Pool.com and removing
such domain from your list of backordered domains.
Pool.com also offers alerts and other services and information that may assist you
in identifying the current status of domains that you may wish to backorder. Such
services and information are provided on an as-is basis from third parties, and
Pool.com does not represent or warrant to the truth or accuracy of such information.
Prior to placing a backorder for a particular domain, you should independently confirm
all such information by performing WHOIS searches that can be found on the websites
of ICANN accredited registrars.
Unless otherwise specified by you, Pool.com will point all backordered domain names
to a parked or coming soon web page that informs visitors that the domain has recently
been registered via the Pool.com service and which may include promotional or other
information (including without limitation hyperlinks) as determined by Pool.com
and our partners in our sole discretion. You agree that any and all revenue generated
from such a parked or coming soon web page enures to the benefit of Pool.com. You
may modify the nameserver information and discontinue use of the coming soon page
for any particular domain at any time, with or without notice to us, by logging
into your registrar account and making such changes.
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New generic top level domains (gTLDs) are coming. ICANN will be accepting proposals
from interested parties to establish new gTLDs. There is no guarantee that any of
these applications will be approved. However, in the event a new gTLD application
is approved, Pool.com intends to provide a domain acquisition service for these
new gTLDs.
In support of this domain acquisition service, Pool.com is accepting pre-orders
for domains in all proposed new gTLDs. There is no initial fee for placing a pre-order.
A pre-order is similar to a backorder in that it represents a commitment to purchase
the domain in the event Pool.com is successful at securing the domain on your behalf.
In the event the gTLD in question is approved by ICANN and the gTLD is launched,
your pre-order will be registered with Pool.com as a backorder. At such time, Pool.com
may request additional information from you to complete your account profile for
both whois and billing purposes.
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In the event that Pool.com is successful in acquiring a backordered domain, Pool.com
will conduct an auction and the domain will be registered on behalf of the highest
bidder in such auction. The auction may be opened by Pool.com at a reserve bid level,
which where no bidder bids in excess thereof, the domain may be retained by Pool.com,
deleted or otherwise disposed of by Pool.com as Pool.com sees fit in its sole discretion.
If you choose to bid for a particular domain and you are the highest bidder at the
end of an auction, you are obligated to complete the transaction and pay to Pool.com
the amount of your winning bid. Other terms and conditions applicable to auctions
are set forth on the website, located at
www.pool.com. Carefully consider your bids prior to placing them - Bids
are not retractable under any circumstances.
If no bids are placed on a particular domain, Pool.com will register the domain
on behalf of the first Pool.com customer to place a backorder for such domain, and
that customer will be charged our regular service fee.
Following the successful completion of an auction for a particular domain, Pool.com
will notify the winner. If you are the winning bidder on an auction, Pool.com will
attempt to collect payment. Should this fail, you will have 24 hours to complete
successful payment of your bid amount to Pool.com. This time period is required
due to time constraints placed on Pool.com and its partners by the domain registries.
In the event full payment is not received within 24 hours by the winning bidder,
Pool.com may, in addition to any other remedies it may have available to it, immediately
notify the second highest bidder (and subsequently the third highest bidder, etc.)
that they have won the auction, and charge such bidder their highest bid amount.
Such winning bidder will then have up to 24 hours to complete full payment of their
bid.
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When you place a backorder or order a dot-eu domain with us, we provide you with
a password that can be used to modify your backorder information. It is your responsibility
to safeguard your password. You accept full responsibility for any services purchased,
or modifications made to your account, using this password.
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As consideration for the services you have selected, you agree to pay Pool.com the
applicable service(s) fees set forth on our website at the time of your selection.
You agree to keep your credit card information accurate and current with Pool.com
at all times. You agree that Pool.com reserves the right to increase its fees and
you agree to be bound by any fee increase. All fees are due immediately upon a successful
backorder registration and are non-refundable. Pool.com may take all remedies available
to collect fees owed and may recover from you all costs and expenses (including
reasonable attorney fees) incurred by Pool.com to collect such fees.
In the event of non-payment, reversal of payment, or a charge back by a credit card
company or other payment provider, in addition to any other remedies Pool.com may
have, we may, in our sole discretion, take any of the following actions: (i) transfer
any domain that you have acquired through the Pool.com service to Pool.com as the
paying entity for the registration; (ii) delete the backordered domain; and (iii)
suspend or terminate your account and any or all backordered domains. Pool.com reserves
the right to charge an administration fee (as specified in the FAQs located at www.pool.com)
to cover our time and expense associated with the recovery of payment in the event
of non-payment, reversal of payment, or a charge back by a credit card company or
other payment provider.
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Unless otherwise specified, each Pool.com service, including backorders, is for
a one-year initial term and will renew automatically thereafter for successive one-year
terms unless either party elects to terminate such backorder or other service (which
you can do at any time by logging into your Pool.com account and indicating your
election to terminate such backorder or other service). Any renewal of your services
with us is subject to our then current terms and conditions and payment of all applicable
service fees at the time of renewal.
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In order for Pool.com to successfully register a backordered or dot-eu ordered domain
through one of our partners on your behalf, you must supply us with complete, accurate
and current required registration information. As further consideration for the
Pool.com service(s), you agree to: (i) provide certain current, complete and accurate
information about you as required by the domain name application process; (ii) maintain
and update this information as needed to keep it current, complete and accurate;
and (iii) respond within fifteen (15) calendar days to any request by us to update
or confirm the accuracy of your information. We rely on this information to carry
out our services for you and comply with the requirements of the registries of domain
names and to send you important information and notices regarding your account and
our services. Any failure by you to provide or update such information or to respond
to our request is a material breach of this Agreement and may result in our inability
to successfully register a backordered or dot-eu ordered domain on your behalf and
we may, in our sole discretion, elect to cancel the services without further notice
to you.
You acknowledge that our registrar partners are required to make this information
publicly available on a WHOIS database as expressed in such registrars' service
agreements, and you consent to such disclosure. In addition, you must keep your
Pool.com user information (including without limitation your name, credit card information
and email address) accurate and current so that we may reliably communicate with
you regarding the status of your backorders and other Pool.com services you may
be using, and collect payment for service fees in a timely manner. If you do not
supply accurate and complete contact and credit card information to us, we will
be unable to perform our services to you, it will be considered a material breach
of this Agreement, and we may, in our sole discretion, elect to cancel the services
without further notice to you.
Our privacy statement, located on our website at
http://www.pool.com/privacy.aspx and incorporated herein by reference, sets
forth your and our rights and responsibilities with regard to your personal information.
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You represent and warrant that you have provided notice to, and obtained consent
from, any third party individuals whose personal data you supply to us as part of
our services with regard to: (i) the purposes for which such third party's personal
data has been collected; (ii) the intended recipients or categories of recipients
of the third party's personal data; (iii) which parts of the third party's data
are obligatory and which parts, if any, are voluntary; and (iv) how the third party
can access and, if necessary, rectify the third party's personal data. You further
agree to provide such notice and obtain such consent with regard to any third party
personal data you supply to us in the future. We are not responsible for any consequences
resulting from your failure to provide notice or receive consent from such individuals
or for your providing outdated, incomplete or inaccurate information.
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Except as otherwise provided in this Agreement, you agree, during the term of this
Agreement, that we may revise the terms and conditions of this Agreement and/or
change the services provided under this Agreement at any time. Any such revision
or change will be binding and effective ten (10) calendar days after the revised
Agreement or change to the service(s) is posted on the Pool.com website. You agree
to periodically review our website, including the current version of this Agreement
available on our website, to be aware of any such revisions. If you do not agree
with any revision to the Agreement or change to the services, you may terminate
this Agreement at any time. Any fees paid by you prior to termination of your Agreement
with us are nonrefundable, but you will not incur any additional fees. By continuing
to use our services ten (10) calendar days after any revision to this Agreement
or change in service(s) is posted on our website, you agree to abide by and be bound
by any such revisions or changes. We are not bound by and you may not rely on any
representation concerning this Agreement or our services made by: (i)any agent,
representative or employee of any third party that you may use to apply for our
services; or (ii) information posted on our Web site of a general informational
nature. No employee, contractor, agent or representative of Pool.com or any partner
of Pool.com is authorized to alter or amend the terms and conditions of this Agreement.
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In order to change any of your account information with us, you must use your account
name and the password that you selected when you created your Pool.com account.
Please safeguard this information from any unauthorized use. In no event will we
be liable for the unauthorized use or misuse of your account name or password.
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You agree that you will only use our services for lawful purposes. We have no responsibility
to monitor your use of domains we register on your behalf; however, we reserve the
right to terminate your account if a backordered or dot-eu ordered domain registered
on your behalf is found to be pointing to or otherwise directing traffic to any
content or material in violation of any statute or regulation, including without
limitation any violation of domestic or international copyright laws, trademark
laws, cyber-squatting laws, or any material judged to be threatening or obscene.
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If we successfully register a backordered domain on your behalf through one of our
partners, you agree to be bound by ICANN's Uniform Domain-Name Dispute-Resolution
Policy (the "ICANN UDRP") that is incorporated herein and made a part of this Agreement
by reference. The current version of the ICANN UDRP may be found at ICANN's Web
site: www.icann.org. Please
take the time to familiarize yourself with that policy.
If we successfully register a dot-eu domain on your behalf through one of our partners,
you agree to be bound by EURid's dispute resolution policies (including any sunrise
dispute resolution policies) that are incorporated herein and made a part of this
Agreement by reference. The current version of EURid's dispute resolution policies
may be found at EURid's website located at
www.eurid.eu. Please take the time to familiarize yourself with those policies.
In addition, you agree that, if your use of any domain name registered on your behalf
by Pool.com is challenged by a third party, you will be subject to the provisions
specified in the dispute policy of the registering registrar in effect at the time
of the dispute. In addition to such dispute policy, you will indemnify and hold
Pool.com harmless pursuant to the terms and conditions set forth in this Agreement.
We will not participate in any way in any dispute between you and any party other
than us regarding the registration and use of any domain or our services. You will
not name us as a party or otherwise include us in any such proceeding. In the event
that we are named as a party in a proceeding, we reserve the right to utilize any
and all defenses available to us and to take any further action that we deem necessary
to defend ourselves.
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You agree that, if your agent purchased our service(s) on your behalf, you are nonetheless
bound as a principal by all terms and conditions herein, including the ICANN UDRP
and the dispute policy, whether your agent was authorized by you or not. You certify
that your agent is authorized to apply for our services on your behalf, that he
or she is authorized to bind you to the terms and conditions of this Agreement and
that he or she has apprised you of the terms and conditions of this Agreement. In
addition, you are responsible for any errors made by your agent. We will not refund
any fees paid by you or your agent on your behalf for any reason based on any act
or omission of your agent.
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You authorize us to notify you as our customer of information that we deem is of
potential interest to you. Notices and announcements may include commercial e-mails
and other notices describing changes, upgrades, new products and services or other
information pertaining to services and/or other relevant matters. If you do not
wish to receive bulk email solicitation notices or announcements please de-select
such options from your Pool.com account.
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To the extent permitted at law, Pool.com and its partners and contractors will not
be liable for any direct, indirect, incidental, special or consequential damages
resulting from your use or inability to use any of the Pool.com services or for
the cost of procurement of substitute services. We disclaim any and all loss or
liability resulting from, but not limited to: (i) any failure or inability to register
a backordered, dot-EU or dot-MOBI domain name on your behalf; (ii )any third party
claims arising from or based on your use of our services; (iii) access delays or
access interruptions; (iv) data non-delivery or data mis-delivery; (iv) acts of
God; (v) the unauthorized use or misuse of your Account name or password; (vi) errors,
omissions, or misstatements in any and all information or service(s) provided under
this Agreement; (vii) the deletion of or failure to store data of any kind; (viii)
the development or interruption of your website; (x) our processing of your application
for our services, our processing of any authorized modification to your record or
your agents failure to pay any fees, our fees or re-registration fees; (xi) the
application of the ICANN UDRP or the Dispute Policy; or (xii) any other dispute
policy applicable to your domain. You agree that our entire liability, and your
exclusive remedy, with respect to any Pool.com service(s) provided under this Agreement
and/or for any breach of this Agreement is solely limited to the amount you paid
for such service(s).
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You agree to release, indemnify, and hold Pool.com, our partners, contractors, agents,
employees, officers, directors, shareholders, affiliates and assigns harmless from
all liabilities, claims, damages, costs and expenses, including reasonable attorneys'
fees and expenses, relating to or arising from your domain name registration or
use of your domain name or the Pool.com services provided hereunder. When we are
threatened with suit or sued by a third party, we may seek written assurances from
you concerning your promise to indemnify us; your failure to provide those assurances
may be considered by us to be a material breach of this Agreement. In addition,
in the event we are made a party to any claim, suit or action by you which is unsuccessful
or by a third party in each case relating to or arising from your domain name registration
or use of your domain name or the Pool.com services provided hereunder, you will
reimburse us, at a reasonable rate, for all personnel time and expenses expended
by us in response to such claim, suit or action including without limitation, all
attorney fees and expenses incurred by us with respect to such response.
In addition, you agree to indemnify and hold harmless the applicable registry operator
and its directory, officers, employees and agents from and against any and all claims,
damages, liabilities, costs and expenses (including reasonable legal fees and expenses)
arising out of or related to your domain name registration.
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You agree that your failure to abide by any provision of this Agreement, any Pool.com
operating rule or policy, the ICANN UDRP or any dispute policy may be considered
by us to be a material breach of this Agreement and that we may, in our sole discretion,
elect to cancel the services without further notice to you. We will not refund any
fees paid by you prior to the termination of your Agreement due to your breach.
Any such breach by you will not be deemed to be excused simply because we did not
act earlier in response to that, or any other breach, by you.
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You agree that, the registration of your chosen domain name does not confer immunity
from objection to either the registration or use of your domain name.
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You represent and warrant that: (i) the information that you or your agent on your
behalf provide to us during the application process to register your domain name
or to apply for other Pool.com service(s) is, accurate and complete, and that any
future changes to this information will be provided to us in a timely manner; (ii)
to the best of your knowledge and belief neither the registration of your domain
name nor the manner in which you intend to use such domain name will directly or
indirectly infringe the legal rights of any third party; (iii) you have all requisite
power and authority to execute this Agreement and to perform your obligations hereunder;
(iv) you have selected the necessary security option(s) for your registration record;
and (v) you are of legal age to enter into this Agreement.
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You release Pool.com, our partners, contractors, agents, employees, officers, directors,
shareholders, affiliates and assigns from claims, demands and damages (actual and
consequential) of every kind and nature, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in any way connected with our services.
If you are a California resident, you waive California Civil Code §1542, which says:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
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You agree that your use of our service(s) is solely at your own risk. You agree
that all of our services are provided on an "as is," and "as available" basis. WE
EXPRESSLY DISCLAIM ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED CONDITIONS AND WARRANTIES
OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY OR REPRESENTATION THAT OUR SERVICE(S) WILL MEET YOUR REQUIREMENTS,
THAT WE WILL BE ABLE TO REGISTER ANY PARTICULAR DOMAIN ON YOUR BEHALF, OR THAT THE
SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S)
OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF OUR SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF
DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY
OR REPRESENTATION REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH
ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US WILL CREATE ANY
CONDITION OR WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY
NOT APPLY TO YOU.
Pool.com reserves the right to terminate any of its services at any time, with or
without notice to you. In the event of such termination, your sole remedy will be
to request a refund of any amounts paid to Pool.com for services that were not completed
in whole or in part. In the event that a service was partially completed, you may
request a refund of the pro-rata portion of such fee for uncompleted services.
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We, in our sole discretion, reserve the right to refuse to register your backordered,
dot-EU or dot-MOBI ordered domain name on your behalf or register you for other
Pool.com service(s). You agree that we will not be liable to you for loss or damages
that may result from our refusal to register your domain name or our refusal to
register you for other Pool.com service(s).
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You agree that the terms of this Agreement are severable. If any term or provision
is declared invalid or unenforceable, that term or provision will be construed consistent
with applicable law as nearly as possible to reflect the original intentions of
the parties, and the remaining terms and provisions will remain in full force and
effect.
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You agree that this Agreement, the rules and policies published by us, the ICANN
UDRP, the EURid dispute policy, the dispute policy and the privacy statement are
the complete and exclusive agreement between you and us regarding our services.
This Agreement, our rules and policies, the ICANN UDRP, the EURid dispute policy,
the dispute policy and the privacy statement supersede all prior agreements, representations
and understandings, whether established by custom, practice, policy or precedent.
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Your rights under this Agreement are not assignable. Any attempt by you to assign
your rights will render this Agreement voidable at our option. Any attempt by your
creditors to obtain an interest in your rights under this Agreement, whether by
attachment, garnishment or otherwise, will render this Agreement voidable at our
option.
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You agree that this Agreement and any disputes hereunder will be governed in all
respects by and construed in accordance with the laws of the Province of Ontario,
Canada, excluding its conflict of laws rules. You and we each submit to exclusive
subject matter jurisdiction, personal jurisdiction and venue of the courts of that
Province. You agree that any action, suit or application will be brought and heard
in Ottawa, Canada.
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By applying for the service(s) of a Pool.com or an affiliate through our online
application process or by backordering a domain name using the service(s) provided
by Pool.com or its affiliates under this Agreement, you acknowledge that you have
read and agree to be bound by all terms and conditions of this Agreement, the ICANN
UDRP, the EURid dispute policy, the dispute policy and any pertinent rules or policies
that are or may be published by Pool.com, ICANN or EURid.
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Last Modified January 16, 2009.