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Merchant Terms and Conditions
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Date of Last Revision: December 30, 2008.
ALLSHOPPING.CA MERCHANT TERMS & CONDITIONS
1. LICENSE
1.1 Subject to the terms and conditions of this Agreement, ALLSHOPPING.CA and Merchant grant each other a limited, non-exclusive, non-transferable, non-sublicenseable, worldwide, royalty-free license, including any necessary trademark licenses, to use any graphic banners, names, logos, product descriptions submitted by one party to the other as a return Link to the other party's Web Site and in promotional and marketing materials (unless otherwise specified herein), content directories and indexes, and electronic and printed advertising, publicity, press releases, newsletters and mailings about the parties. Merchant shall not issue a press release or other publication containing information about AllShopping.ca or referring to this Agreement or its terms without AllShopping.ca's prior written consent. AllShopping.ca shall incorporate the Merchant’s return Link on the AllShopping.ca Web Site provided that the size and appearance of the Merchant’s return link meets with AllShopping.ca's approval. Merchant shall at all times ensure that the Merchant Web Site permits navigation back to the AllShopping.ca Web Site via use of the “back” button on an Internet browser (or any other similar return mechanism) without interrupting the return process through use of any intermediate screen, HTML popup window or similar device not specifically requested by a User. Notwithstanding the foregoing, the parties shall not use or exploit in any manner each other’s trademarks except in such manner and media in accordance with a party’s trademark usage guidelines which may be provided to the other party from time to time, or otherwise as the granting party may consent to in writing, which consent shall not be unreasonably withheld or delayed. Either party may revoke or modify any such consent upon written notice to the other party.
1.2 INTELLECTUAL PROPERTY RIGHTS.
Each party represents and warrants that it owns all Intellectual Property Rights necessary to execute their respective obligations under this Agreement and has the right to grant the licenses specified in this Agreement. The parties represent and warrant that the use and license of the rights granted hereunder do not infringe upon any third party right, including but not limited to third party Intellectual Property Rights and contractual rights.
1.3 OWNERSHIP RIGHTS. The parties shall retain all of their respective Intellectual Property Rights including, without limitation, rights in their names and logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. Upon termination or expiration of this Agreement, the parties will immediately cease all display and use of the other party’s Intellectual Property except as permitted by law or as permitted herein. AllShopping.ca shall be permitted to continue to distribute marketing materials and brochures that were printed before the termination or expiration of the Agreement and that contain the Merchant's trademark(s) and logo(s) to the extent that such marketing materials and brochures are not specific solely to Merchant and contain the trademarks and logos of other merchants on the AllShopping.ca Web Site(s). As owner of all data collected in relation to the merchant rating system on AllShopping.ca Web Site, AllShopping.ca reserves the right to display/use such data, including displaying Merchant’s name, after termination of this Agreement.
2. FEES, PAYMENTS AND TAXES
2.1 COST PER CLICK - MERCHANT ACCOUNT PAYMENTS. Merchant shall pay AllShopping.ca the CPC specified in the Rate Card in the Merchant Dashboard. Within one day of the Effective Date, Merchant shall set up a Merchant Account and deposit therein funds to begin their campaign(s). A “Merchant Account” is an account that is set up by Merchant (or by AllShopping.ca on behalf of Merchant) containing funds made available for amounts owed by Merchant to AllShopping.ca for CPC and other payments. AllShopping.ca shall be authorized and permitted to withdraw funds from the Merchant Account as CPC amounts owed to AllShopping.ca accrued from Click-thrus to the Merchant Web Site. Merchant shall deposit funds into the Merchant Account by accessing the Add Funds section of the Merchant Dashboard. Amounts deposited by Merchant into the Merchant Account shall be non-refundable.
If, for whatever reason, (a) the balance of the funds in the Merchant Account becomes zero or a negative amount , or (b) there is a charge-back to AllShopping.ca for any reason related to the Merchant Account, then AllShopping.ca shall have the right, in its sole discretion, to i) immediately remove the Merchant from the AllShopping.ca Web Site; ii) terminate the Agreement; and iii) invoice the Merchant for any amounts due to AllShopping.ca. All such invoices shall be payable immediately and are subject to late fees and collection if not paid within twenty (20) days of the date of the invoice.
2.2 CPC RATES. Merchant’s CPCs for the applicable Channels on the AllShopping.ca Web Site and the Logo Inclusion Fee (if any) will be set forth on the Merchant’s Rate Card page on the AllShopping.ca Merchant Dashboard. In the event that AllShopping.ca decides in its sole discretion to adjust the CPC and/or the Logo Inclusion Fee rates applicable to Merchant from time-to-time, in whole or in part, after the Effective Date, AllShopping.ca shall send Merchant an e-mail to the e-mail address specified by Merchant in the Agreement (or as otherwise notified/provided to AllShopping.ca by Merchant), which will inform Merchant that the CPC and/or Logo Inclusion Fee rates (as applicable) have been changed, and that Merchant should access its Dashboard page to view the new rates. This e-mail notification shall be AllShopping.ca’s only obligation regarding informing Merchant that new rates are posted on the Merchant’s Dashboard and shall be effective upon sending, and shall be effective irrespective of whether the Merchant actually receives the e-mail (it is Merchant’s responsibility to provide AllShopping.ca with a functioning and accurate e-mail address for notices). Notwithstanding anything to the contrary in the Agreement, the parties hereto agree that new CPC rates notified to Merchant, in accordance with the foregoing procedure in this Section 3.3, will only be binding on Merchant after the expiration of ten (10) days from the date AllShopping.ca sends the e-mail notification unless, within such ten (10) day period, Merchant sends AllShopping.ca a notice of Agreement termination, which termination shall take effect in accordance with the terms of the Agreement. Any such termination notice should be sent to contracts@AllShopping.ca, and should clearly and categorically state the intent on the part of the Merchant to terminate the Agreement, and should also state Merchant’s name and the person at Merchant requesting the termination. This provision shall not otherwise limit either party’s ability to terminate the Agreement with or without cause in accordance with, and subject to, the terms of the Agreement.
2.3 LATE FEES AND PARTIAL PAYMENT. Any amounts not paid in full by Merchant to AllShopping.ca when due, not paid in full as invoiced, or not collected by AllShopping.ca from the Merchant Account due to the fault of the Merchant or its payment agent, will be subject to a late payment penalty equal to the lesser of one and one and half percent (1.5%) per month or the highest rate allowable by law, which shall be determined and compounded daily from the date due until the date paid in full. Payment of such late payment penalty will not excuse or cure any breach or default for late payments. AllShopping.ca shall have the right to recover all costs (including attorney fees) incurred in collection of late or delinquent payments. AllShopping.ca may accept any check or payment without prejudice to its rights to recover the balance due or to pursue any other right or remedy and not withstanding any restrictive endorsement on the check or payment. No endorsement or statement on any check or payment or letter accompanying any check or payment or elsewhere will be construed as an accord and satisfaction or as a compromise and settlement.
2.4 TAXES. The payments required to be made under this Agreement do not include any amount for taxes, duties or levies (including interest and penalties) which may be owed by either party. Merchant shall reimburse AllShopping.ca and agrees to indemnify, defend and hold AllShopping.ca harmless for all sales, use, VAT, excise, property or other taxes, duties or levies (including penalties and interest) which AllShopping.ca is required to collect or remit to applicable tax authorities. This Section shall not apply to taxes on AllShopping.ca’s income or any taxes for which Merchant is exempt, provided Merchant has furnished AllShopping.ca with a valid tax exemption certificate to prove such exemption.
3 RETAILER INVENTORY FILE AND PRICING INFORMATION.
3.1 PLS. Merchant shall provide AllShopping.ca with a Product List Spreadsheet (PLS). AllShopping.ca will receive or access the PLS to retrieve an update of information for the products offered by Merchant that match products contained in AllShopping.ca’s database. At a minimum, one product supplied by Merchant shall match AllShopping.ca’s then current database (the database is subject to change at AllShopping.ca’s sole discretion). Based on the PLS provided by Merchant, AllShopping.ca shall: (1) reformat Merchant’s product and pricing information as necessary for inclusion on the AllShopping.ca Web Site; and (2) establish links on the AllShopping.ca Web Site to the Merchant Web Site to facilitate access by the AllShopping.ca Web Site Users. Merchant acknowledges and agrees that any pictures, photographs, drawings, graphics, descriptions, specifications and/or reviews provided in its PLS may be added to, and used as part of, the AllShopping.ca product database during and after the term of the Agreement. Merchants may also submit products one by one using the web from in the Dashboard.
3.2 PRICING INFORMATION and PLS Data. Merchant warrants that the pricing and product information provided by Merchant to AllShopping.ca in the PLS will be accurate and will not be deceptive in any respect. Any erroneous pricing and product information contained in the PLS shall be corrected immediately by Merchant upon receipt of notice of such error. Merchant will provide AllShopping.ca with an updated PLS as required, or on a periodic basis if requested by AllShopping.ca. Merchant is obligated to extend to Users that Click-thru to the Merchant Web Site the lowest price offered by Merchant on the Internet for its products listed on the AllShopping.ca Web Site, and in no event shall the price exceed the price that is then listed on the AllShopping.ca Web Site. Merchant agrees to exclude all rebates, promotions, coupons, bundle discounts or similar discounts when calculating product prices that are provided to AllShopping.ca in the PLS.
Merchant acknowledges and agrees that a) inaccuracies in information contained in the PLS or failure to meet the PLS requirements stated herein (whether intentional or unintentional), b) failure to provide AllShopping.ca with a timely or complete PLS, c) illegal or deceptive practices by Merchant or d) complaint(s) from Users regarding Merchants conduct of business shall be sufficient cause for the immediate removal of Merchant from the AllShopping.ca Web Site and the immediate termination of this Agreement by AllShopping.ca, in its sole discretion and without any prior notification to Merchant or opportunity for Merchant to cure any of the foregoing. In the event of such removal of Merchant from the AllShopping.ca Web Site, AllShopping.ca in its sole and absolute discretion shall be entitled to indicate on the AllShopping.ca Web Site that Merchant and Merchant’s products have been removed from the AllShopping.ca Web Site.
3.3 DISPLAY OF PRICING INFORMATION. AllShopping.ca shall make reasonable efforts to ensure Merchant's products and pricing information is displayed on the AllShopping.ca Web Site; however, AllShopping.ca reserves the right to not display any information concerning any Merchant product which AllShopping.ca, in its sole discretion, has determined is not of a quality and nature consistent with AllShopping.ca’s standards, or is otherwise deemed by AllShopping.ca, in its sole and absolute discretion, to be inappropriate for display on the AllShopping.ca Web Site. Merchant understands and acknowledges that some or all of the Merchant’s information may unintentionally be omitted or incorrectly displayed on the AllShopping.ca Web Site. Under no circumstances shall AllShopping.ca or its Affiliates be liable for any damages to Merchant arising out of any unintentional errors and/or omissions in the display of Merchants information on AllShopping.ca Web Site, any User’s use of the AllShopping.ca Web Site and/or the activities of any Users that may Click-thru to the Merchant Web Site from the AllShopping.ca Web Site.
3.4 INFORMATION AND LISTING DISPLAY ENHANCEMENTS. AllShopping.ca shall undertake procedures to ensure a quality user experience on the AllShopping.ca Web Site and its affiliates. This may include adding additional information to Merchant's Product List in order to better describe products featured on the AllShopping.ca Network. Merchant Information and Product List placement on AllShopping.ca may also be modified at any time to improve AllShopping.ca Site User experience.
4 ADDITIONAL MERCHANT OBLIGATIONS.
4.1 Merchant shall have the sole right and responsibility to process all orders from prospective customers referred to the Merchant Web Site from the AllShopping.ca Web Site. Pricing and availability information for Merchant's products will be determined solely by Merchant at its discretion; however, pricing and product availability information provided to AllShopping.ca in the Retailer Inventory File by Merchant shall meet the conditions set forth above for accuracy and truthfulness.
5 CHANGES TO AGREEMENT. In the event that AllShopping.ca determines that the terms of this Agreement require modification, it shall notify Merchant in writing of any proposed changes. If Merchant fails to inform AllShopping.ca in writing that it does not agree to the proposed changes within the ten (10) days of the date of the notification, Merchant shall be deemed to have accepted the new terms of the Agreement, which shall then become binding on the parties.
6 TERM & TERMINATION. This Agreement will remain in effect until terminated by either party. AllShopping.ca or Merchant may terminate this Agreement (a) immediately upon any breach or violation of this Agreement, or (b) at will upon three (3) days’ prior written notice to the other party. In the event of termination, Sections 2.2, 3 (with respect to outstanding payments owed to AllShopping.ca and late fees only), 6, 7, 8, 9, 10, 11, 12, 14, 15 and 18 shall survive.
7 CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to retain in confidence the terms of this Agreement and all other non-public information and know-how of the other party disclosed to or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"); provided that each party may disclose the terms and conditions of this Agreement to its legal and financial advisors in the ordinary course of its business. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Merchant acknowledges that the terms of this Agreement are Confidential Information of AllShopping.ca. The foregoing restrictions shall not apply to any information that: (a) was known by the Receiving Party prior to disclosure thereof by the other party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed and only after written notification to the other party and affording the other party the opportunity to seek a protective order to protect its Confidential Information); or (e) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, or in any event upon any termination or expiration of this Agreement, each Receiving Party shall return to the other all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section.
8 WARRANTIES.
a. Each party warrants: (i) it has the full corporate right and authority to enter into this Agreement and to perform the acts and obligations required of it hereunder; (ii) its execution of this Agreement by such party and performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; and in performance under and related to this Agreement, the parties shall comply with all applicable laws, rules and regulations (including, without limitation, privacy, export control and obscenity laws); and (iii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
b. Merchant warrants that it will exercise its best efforts to ensure that the Merchant Web Site and the content contained thereon will not contain any material that is obscene, pornographic, profane, fraudulent, libelous or defamatory. Merchant warrants that the content on and in the Merchant Web Site and PLSs will not infringe any Intellectual Property Rights or other rights of any third party, and that it has the right to authorize AllShopping.ca to add and use PLS content as part of the AllShopping.ca product database as specified herein. If Merchant is notified or otherwise becomes aware of any content on the Merchant Web Site or in a PLS containing material that violates the warranties contained in this paragraph, it will take immediate steps to remove such material, however, AllShopping.ca shall in no way be restricted from exercising all other rights and remedies available to it under law or this Agreement.
9 INDEMNIFICATION. Merchant shall indemnify, defend and hold harmless AllShopping.ca and its Affiliates, and its and their directors, officers, employees and agents, from any and all liability, damage, or expense (including reasonable attorneys' fees) under any claim or suit brought by a third party arising out of products and services sold or offered by Merchant, or arising out of a breach, or alleged breach, of any of Merchant's representations, warranties or obligations herein or on the Merchant Web Site, including but not limited to (a) any infringement claim asserted by a third party resulting from AllShopping.ca’s or its Affiliate’s use of Merchant’s Intellectual Property and/or content in a PLS as provided for under this Agreement, (b) a claim by any third party that any product listed by Merchant on the AllShopping.ca Web Site was created, obtained or sold by any party in violation of any federal, state or local law or regulation, (c) any inaccurate, deceptive, or misleading information provided to AllShopping.ca or Users by Merchant, including but not limited to, the information contained in the PLS or (d) Merchant’s refusal to honor terms set forth on the AllShopping.ca Web Site. Merchant agrees to indemnify AllShopping.ca and its Affiliates from any and all liability, damages or consequences from any omission, acts or errors by Merchant arising under this Agreement.
Except as stated otherwise in this Agreement, AllShopping.ca shall indemnify, defend and hold harmless Merchant and its Affiliates, directors, officers, employees and agents, from and against any and all liability, claims, loss, damages, injury or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of AllShopping.ca’s representations, warranties or obligations herein.
10 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. ALLSHOPPING.CA’S AGGREGATE LIABILITY TO MERCHANT HEREUNDER (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF ALLSHOPPING.CA) UNDER THIS AGREEMENT SHALL NOT EXCEED THE COMPENSATION RECEIVED BY ALLSHOPPING.CA FROM MERCHANT HEREUNDER.
11 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN EACH CASE, REGARDING ITS OWN WEB SITES OR THOSE OF ITS AFFILIATES, OR ANY PRODUCTS OR SERVICES DESCRIBED THEREON. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MERCHANT ACKNOWLEDGES THAT THE ALLSHOPPING.CA WEB SITE IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. MERCHANT ACKNOWLEDGES THAT ALLSHOPPING.CA MAKES NO WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS WEB SITES OR OFFER THE CONTENT IN THEIR CURRENT FORM, THAT ITS WEB SITES OR THE CONTENT WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE WEB SITES OR THE CONTENT WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS, OR THAT THE CONTENT, SOFTWARE OR ANY OTHER MATERIALS ON THE ALLSHOPPING.CA WEB SITE ARE FREE FROM ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS.
12 AUDIT. AllShopping.ca shall have the sole responsibility for the calculation of statistics and reporting, which may include numbers of Click-thrus, time of Click-thru, and destination URL of each Click-thru. In the event that Merchant disagrees with any such calculation, a written request should be sent during the term of the Agreement and within fifteen days of its receipt of the applicable invoice from AllShopping.ca. Merchant shall be responsible for payment of the entire invoice while AllShopping.ca conducts the internal audit. AllShopping.ca will provide Merchant with the results of the audit, which shall be final and binding on the parties. In the event that a discrepancy in the number of Click-thrus is discovered, during the course of the audit, AllShopping.ca will issue an adjusted invoice based on the correct number of Click-thrus.
13 GOVERNING LAW AND CHOICE OF VENUE. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Quebec, excluding its provisions on conflicts of laws. The parties hereby submit to the jurisdiction of, and waive any venue objection to, the Canadian District Court for the District of Quebec and the Courts located in Montreal, Quebec, in any litigation arising out of this Agreement.
14 SEVERABILITY. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. If any provision of this Agreement shall, for any reason, be determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, such provision shall be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the parties as expressed herein.
15 HEADINGS. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
16 INDEPENDENT CONTRACTORS. Merchant and AllShopping.ca are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise or agency relationship between Merchant and AllShopping.ca. Neither party has any authority to enter into agreements of any kind on behalf of the other party.
17 NOTICE. Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent via confirmed facsimile or e-mail, or delivered by recognized courier service, properly addressed, to the individual signing this Agreement on behalf of the applicable party and shall be deemed effective upon receipt. Either party may from time to time change the individual to receive notices or its address by giving the other party notice of the change in accordance with this section.
18 ETHICAL CONDUCT. Merchant shall refrain from activities that are illegal, unethical or which might bring either party into disrepute, or which might constitute or represent a serious conflict of interest, or which might give the appearance of impropriety. Merchant agrees to comply with all applicable laws and regulations including those dealing with Internet commerce and privacy. Breach of this obligation by Merchant will entitle the AllShopping.ca to the immediate removal of Merchant from the AllShopping.ca Web Site and termination of this Agreement.
19 FORCE MAJEURE. Neither party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond such party's reasonable control.
20 NON-WAIVER. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
21 ASSIGNMENT. Merchant may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of AllShopping.ca; except that either party may, without the other party's consent, assign this Agreement or any of its rights or delegate any of its duties under this Agreement to any purchaser of all or substantially all of such party's assets or to any successor by way of merger, consolidation or similar transaction. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.
22 OTHER TERMS AND CONDITIONS. The parties hereto may choose to incorporate other terms and conditions into this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter to this Agreement, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
I agree to all the terms listed above.
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