Key Organics Limited & Key Organics Incorporated - Terms and Conditions of Sale
Effective date: 12th December 2017
Key Organics Limited, a company registered in England (Registration number: 2055784) and having its registered office at 12 Upper Belgrave Street, London, SW1X 8BA, United Kingdom (VAT Registration number: GB 441 2642 78) and having its normal place of business (premises) at Unit 2A, Highfield Road Industrial Estate, Highfield Road, Camelford, Cornwall, PL32 9RA, United Kingdom. Key Organics Incorporated is registered in the state of Delaware, USA with its normal place of business (premises) at Suite 100, 55 North Road, Bedford, MA 01730, USA and is a wholly-owned subsidiary of Key Organics Limited. Key Organics Limited and Key Organics Incorporated are hereinafter referred to as Key Organics.
These Terms and Conditions shall apply to all business transactions between Key Organics and the Customer (hereinafter collectively referred to as “the Parties”) regardless of whether they are referenced in any future contracts between the Parties. Any additional or differing terms and conditions of the Customer shall not apply unless expressly agreed to in writing by Key Organics. These Terms and Conditions apply even in the event that Key Organics makes a delivery to the Customer without reservations while being aware of the Customer’s conflicting or deviating terms and conditions.
Any amendments and additions to these Terms and Conditions, including to this provision, shall be made in writing.
All rights accorded to Key Organics according to statutory provisions beyond the scope of these Terms and Conditions shall remain unaffected.
Key Organics is contracting on the basis that the products are supplied for use in the course of business and are not for private use or consumption in any manner.
All BIONET and all products derived from any Services conducted by Key Organics are for RESEARCH USE ONLY AND NOT FOR CLINICAL OR HUMAN USE.
- Changes and Modification
Key Organics reserved the right, from time to time, to add, modify or discontinue any product offering. Where possible, Key Organics will provide an estimate of its available stock via its website.
- Contractual Relationship
The Customer shall purchase products from Key Organics in its own registered Company name and for its own account and use. If the Customer resells the products, the Customer shall sell the products in its own name and from its own account. Key Organics assumes no liability with respect to any third party transactions.
- Basic Customer Responsibilities
The Customer agrees to:
- provide the correct information on all purchase orders of products, including complete product identification numbers (CAS and Key Organics reference(s)), options, quantities and any special instructions such as shipping deviations with respect to split orders. The Customer assumes sole and absolute liability for any failure to provide complete and accurate information when ordering products;
- indemnify and hold harmless Key Organics and its legal successors and assigns from and against all law suits, legal proceedings, losses, claims, liabilities, costs and expenses (including attorney fees) that Key Organics may sustain or incur as a direct result of any claim against Key Organics based upon breach of contract, breach of warranty, strict liability in tort or any other theory of law brought by the Customer’s officers, agents, employees, legal successors and assigns, by the Customer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, if and to the extent directly arising out of the Customer’s breach of its obligations under these Terms and Conditions;
- pay any and all taxes, duties, imposts, excises, fees, charges, costs and expenses of any type whatsoever, accruing, incurred, imposed or assessed in connection with or relating, in any manner whatsoever, to the Customer’s purchase, importation, transportation, storage, use, distribution or resale, of Key Organics products.
- Offer and Acceptance of Orders
All offers are subject to the written acknowledgement by Key Organics and are non-binding. No contract is created unless and until acknowledged by Key Organics, either by written acknowledgment in the form of letter, e-mail or fax bearing the Company’s logo and from an authorised employee.
Analytical data and other descriptions of products contained within certificates of analysis, catalogues, technical data sheets, the Key Organics internet site or other provided product documentation are only approximate unless explicitly referred to as binding. They shall not constitute any agreement or warranty of any characteristics of the products unless an authorised representative of Key Organics has expressly qualified a description of a product as warranty of agreement of certain characteristics and so notified the Customer in writing.
Key Organics reserves all rights of ownership in all intellectual property rights in all offering its products and chemistry services. Such products and services provided by Key Organics shall not be disclosed to any third parties unless otherwise provided in writing between Key Organics and the Customer.
Purchase orders are non-binding on Key Organics. The Customer is bound to its purchase order for two (2) weeks. Any silence by Key Organics with regard to offers, purchase orders, requests or other declarations of the Customer shall not imply consent or agreement unless expressly agreed otherwise in writing. In individual cases, the purchase order will be confirmed by Key Organics by written acknowledgement. Any acknowledgement of purchase order created electronically should include a signature or name from an authorised representative of Key Organics and shall be deemed to constitute written form. Where the acknowledgement of purchase order contains obvious mistakes or clerical or calculation errors, it shall not be binding on Key Organics.
If the contract is unilaterally annulled by the Customer or a purchase order or partial purchase order unilaterally cancelled by the Customer, the Customer shall reimburse Key Organics all costs resulting from such annulment or cancellation of contract or purchase order, particularly cancellation and rescission costs charged to Key Organics by its suppliers, costs for the purchase of goods which may not be returned and all other costs and expenses which Key Organics incurred in connection with the execution and the termination of the contract, inter alia, legal fees and costs of transport.
- Scope of Delivery of Orders & Terms of Delivery
Changes to the scope of delivery shall not be effective unless confirmed in writing by Key Organics. Key Organics reserves the right to make alterations to the purity or specifications of the products to the extent such alterations are not significant.
Key Organics reserves the right to make partial deliveries in order to perform its contractual obligations unless partial delivery is not of any specified by the Customer and the Customer has referred to this fact in its purchase order.
Unless otherwise separately agreed by the parties, Key Organics has the right, in its discretion, to determine the method of shipment, i.e., delivery can be made by air freight, train, ship or road transport.
All deliveries are made “Ex Works” (Incoterms 2010). Key Organics reserves the right to charge the Customer for carriage, handling and freight.
Return of the products and a credit note shall only be possible after prior written consent of Key Organics and the Customer must comply with all instructions of Key Organics with regard to the return of goods. This applies, in particular, to statutory provisions, as applicable, with regard to the delivery and packaging of hazardous goods.
All delivery obligations of Key Organics are subject to the reservation “in stock.” Key Organics is therefore entitled to terminate the contract when stocks available to Key Organics are exhausted. If stocks are only partially exhausted and the entire request of goods as described in the purchase order of the Customer cannot be satisfied, Key Organics is entitled to distribute the available stocks at its reasonable discretion to one or all customers. If Key Organics can only satisfy part of the Customer’s request for goods as described in the purchase order, the Customer is entitled to cancel the purchase order or accept a partial shipment for which the pro-rate price will apply.
- Delivery Time
The delivery date and/or delivery period shall be specified by Key Organics in the purchase order acknowledgement. All delivery periods and dates are non-binding unless expressly referred to as such in writing.
The delivery period shall commence at the time of dispatch of the acknowledgement of purchase order by Key Organics (or acceptance of the purchase order if no acknowledgement is provided). The delivery period shall not commence before the Customer has furnished all documents, permits, approvals, consents and releases to be provided by it, before all technical questions have been clarified and before any agreed down payment has been received. Compliance with the delivery period is subject to timely and proper compliance with all other obligations by the Customer.
The delivery period shall be deemed satisfied if the product(s) have left the Key Organics facility or if Key Organics has notified the dispatch of the product(s) to the Customer. In some circumstances, delivery is subject to timely and proper delivery to Key Organics by its own suppliers; otherwise Key Organics is entitled to terminate the contract.
In the event of any unreasonable delay in delivery, the Customer shall be entitled to terminate the contract after notifying Key Organics of such delay and ten (10) business days in which Key Organics can remedy the otherwise late delivery. Subject to the limitations set forth these Terms and Conditions, Key Organics shall not be liable for any claims for damages of the Customer for late or delayed delivery or damaged goods.
- Prices and Payment
Unless fixed prices have expressly been agreed by the Parties or unless otherwise agreed in writing between the Parties, the Customer shall purchase the products at Key Organics list price in effect on date of purchase order acknowledgement (or date of purchase order if no acknowledgement is provided) as reflected on Key Organics website www.keyorganics.net. Key Organics has the right to change the list prices of its products from time to time, without notice to the Customer.
Unless otherwise agreed in writing, the purchase price shall be paid within thirty (30) days from the date of invoice without any deduction. This also applies to invoices regarding partial deliveries. The date on which Key Organics has received the purchase price and can freely dispose of the same will be deemed the date of payment. In case of delay in payment the Customer shall pay interest in default in the amount of ten percent (10%) above the applicable base rate of interest. The right to assert further damages remains unaffected.
Key Organics is entitled to deliver against prepayment.
All prices are net prices, that is, excluding statutory value added tax or other taxes imposed locally or nationally in any country.
All consumer, sales or indirect taxes, customs, examination and acceptance fees and all other taxes, fees or charges of any kind whatsoever which are imposed by public authorities or allocated to the business transaction between Key Organics and the Customer shall be paid by the Customer in addition to the prices indicated on the offer or the invoice. Key Organics is not obliged to notify the Customer of potential taxes or fees that may arise.
- Transfer of Risk
The risk shall transfer to the Customer as soon as the product(s) have been delivered in accordance with these Terms and Conditions. This shall also apply in case of partial deliveries or if Key Organics has assumed additional services such as transport costs. Key Organics shall insure the products at the Customer’s request and expense by means of a transport insurance against the risks to be specified by the Customer.
If the Customer defaults in accepting delivery of the products or if the Customer otherwise breaches any duty to cooperate, Key Organics shall be entitled to demand compensation for the damages incurred including additional expenses. The risk of accidental loss or of accidental deterioration of quality of the goods shall pass to the Customer at the moment of default of acceptance by the Customer. After a reasonable period of time has expired without acceptance, Key Organics shall be entitled to otherwise dispose of the products and to supply the Customer within a reasonably extended period.
Delivered products shall be accepted by the Customer regardless of any claims for defects if the defects are insignificant.
- Storage, Handling and Use of the Product(s) by Customer
All products supplied or sold by Key Organics are intended to be used only for the purposes of laboratory research and may not be used for any other purpose. In particular products of Key Organics may not be used for diagnostics, in any food production or directly in pharmaceutical products, in medical devices or in cosmetic products. Even if not specified on the product label, all Key Organics products are “not for human use”. The Customer is obliged to inform its customers of the same where Key Organics products are transferred, used or otherwise disposed of.
Key Organics does not test its products for their safety and effectiveness. It is the responsibility of the Customer to examine existing risks and dangers and to carry out any further research (if necessary) in order to become aware of the dangers that may arise from the use of products purchased from Key Organics. The Customer shall warn its support staff (such as transport workers) against the risks and dangers that may be related to the storage, use or handling of the products.
The products of Key Organics may be governed by the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulations and other regulatory provisions. The Customer is responsible for complying with all regulatory provisions in connection with the storage, handling and use of substances purchased from Key Organics.
The Customer shall verify the indications of content made by Key Organics if the products purchased from Key Organics are to be repacked, re-labelled or used as starting materials or components for other products. The Customer assumes all liability for the use of any products, including medicines derived or made from the Key Organics products.
If the Customer resells the products, it shall inform its customers about the duties and warn them against the risks and dangers set forth above.
- Claims for Defect(s) & Remedy
The Customer will inform Key Organics in writing of any defects no later than two (2) weeks after receipt of the products. Hidden defects shall be notified to Key Organics in writing immediately after their discovery. The Customer shall describe the defects in writing.
In the event of defects in the products, Key Organics shall be entitled, in its sole discretion, to remedy by delivering a defect-free product. The expenses necessary for the subsequent performance shall be borne by Key Organics in as far as these expenses are not increased as a result of the products being taken to a location other than the delivery address.
If Key Organics is not willing or able to remedy the defect, the Customer shall be entitled to terminate the contract. The same shall apply if the subsequent performance fails, if the Customer cannot be reasonably expected to accept it or if it is delayed beyond reasonable deadlines for reasons for which Key Organics can be held responsible. The right of the Customer to terminate the contract shall be excluded if (i) the Customer is unable to return the defective products and this inability is not due to the fact that the return of the products is impossible due to the nature of the product or reasons for which Key Organics is responsible or (ii) the defect only showed during the processing or conversion of the products.
In the event of defects in products that Key Organics sources from third-party suppliers and which form an essential part of Key Organics products, the Customer shall only be entitled to demand assignment of the claims that Key Organics is entitled to assert against the third-party supplier. Only in the event of failure of an assigned claim by Key Organics against a third-party supplier shall the Customer be entitled to assert claims for defect.
The obligations set forth in these Terms and Conditions shall only exist if:
Notwithstanding any provision in these Terms and Conditions to the contrary, the period of limitation for claims for defects by the Customer shall be twelve (12) months from the date of delivery. It shall also apply to claims in tort which are based on a defect of the products. The period of limitation begins with the delivery of the products. A statement by Key Organics concerning a claim asserted by the Customer based on a defect is not to be deemed an entry into negotiations concerning the claim or the circumstances giving rise to the claim if the claim is fully denied by Key Organics.
Key Organics shall not in any event be liable for incidental, indirect, consequential or special damages of any kind resulting from any use or failure of the products, even if key organics has been advised of the possibility of such damage including, without limitation, liability for loss of use, loss of work in progress, down time, loss of revenue, profits or goodwill, failure to realize savings, loss of products of customer or other use or any liability of customer to a third party on account of such loss, or for any labour or any other expense, damage or loss occasioned by such product including personal injury, death or property damage unless such personal injury or death is caused by negligence.
Save as expressly provided in these Terms and Conditions, Key Organics makes no warranties or representations express or implied, whether by statute or otherwise including any warranties of merchantability satisfactory quality or fitness for a particular purpose with respect to any product. All such warranties are expressly disclaimed and excluded to the maximum extent permitted by applicable law. In the event of any resale by Customer, the liability of Key Organics shall not be expanded, modified or otherwise altered by any warranty offered by the Customer for the products.
Any claim for damages brought against Key Organics will not exceed the value of the products supplied which represents the limit of Key Organics liability under this agreement.
- Retention of Title
Until full payment of all outstanding claims of Key Organics resulting from the business relationship with the Customer, Key Organics shall retain title to the delivered products. The Customer is obliged to handle the products subject to retention of title with due care. In particular, the Customer is obliged to sufficiently insure the products at their replacement value against fire, water and theft at its sole cost.
The Customer may resell products subject to retention of title only in the ordinary course of its business. The Customer shall not be entitled to pledge the products subject to retention of title transfer them by way of security or otherwise dispose of them in a manner which may jeopardize the ownership of Key Organics. In the event of seizure or other interventions by third parties the Customer shall immediately inform Key Organics in writing and provide all necessary information, and the Customer shall inform the third party of the ownership rights of Key Organics and assist Key Organics with all measures taken for the protection of the products subject to retention of title. The costs incurred shall be borne by the Customer.
The Customer hereby assigns all claims resulting from the resale of products including all ancillary rights to Key Organics, regardless of whether the products subject to retention of title have been processed or not. Key Organics hereby accepts this assignment. The Customer is hereby revocably authorized to collect the claims assigned to Key Organics in its own name in trust on behalf of Key Organics. The collected amounts shall be passed on to Key Organics without delay. Key Organics shall be entitled to revoke the authorization to collect claims and the right to resell the products of the Customer if the Customer does not properly comply with its payment obligations towards Key Organics, defaults in payment, ceases payments, or if any action is taken by or against the Customer under applicable insolvency legislation.
In the event of default in payment by the Customer, Key Organics shall be entitled, without prejudice to its other rights, to take back the products subject to retention of title and, after timely warning, be entitled to use the products subject to retention of title elsewhere for the purpose of satisfying its due claims against the Customer. In addition, Key Organics shall, after expiry of a reasonable deadline, be entitled to terminate the contract. The Customer shall grant Key Organics immediate access to the products subject to retention of title and shall surrender the products without delay.
The processing or conversion of the products subject to retention of title by the Customer shall always be performed on behalf of Key Organics. The Customer’s contingent right to the products subject to retention of title is continued with regard to the processed or converted goods. If the products are processed together with other items not belonging to Key Organics, Key Organics shall be entitled to shared ownership in the new items in proportion of the value of the delivered products to the value of the other processed items at the time of processing. As regards the items created by processing or conversion, the same conditions shall apply as for the products subject to retention of title. Key Organics will be unrestricted with respect to the disposal, including sale of such products.
Upon the Customer’s request, Key Organics may at its discretion release specified products from its retention of title rights to the extent that the realizable value of such products exceeds the claims of Key Organics resulting from the business relationship with the Customer by more than twenty percent (20%). For the purposes of valuation, the invoiced value of the products subject to retention of title and the nominal value of the claims shall be authoritative.
- Patents and Copyrights
The Customer agrees that it will not, directly or indirectly, apply for, take out, maintain, or otherwise acquire any patents, utility models, registered designs or copyrights (or any similar intellectual property rights) in any country, on the basis of information obtained by the Customer from Key Organics (or any of Key Organics affiliates).
- Technical Assistance
At the Customer’s request, Key Organics may, at its discretion, furnish technical assistance and information with respect to possible applications and technical specifications of its product free of cost unless fees have been agreed in the individual case. By providing advice and information Key Organics does not assume any warranty, express or implied, for technical specifications, use, selection or suitability of the products. In particular, Key Organics does not assume any warranty that certain chemical reactions which have been presented are feasible. Liability of Key Organics to these Terms and Conditions shall apply accordingly.
- Compliance with Laws
The Customer shall conduct its operations in compliance with all applicable laws and regulations of all jurisdictions having contact with the transactions contemplated by these Terms and Conditions. The Customer will, without limitation, obtain and maintain, at the Customer’s expense, all licenses, permits, registrations, authorizations, certificates, consents, waivers, receipts, qualifications, clearances and approvals of any type or character whatsoever (whether public or private) as needed to authorize, without limitation: (i) the parties’ adherence to these Terms and Conditions and performance hereunder; and (ii) the Customer’s import, storage, use, distribution, marketing, transportation and sale of the products.
Without limiting anything in the preceding paragraph: (i) the Customer acknowledges that Key Organics (and its affiliates) is (are) bound by a corporate policy of ethical and legal conduct (the “Policy”), as well as United States (“U.S.”) law, including the Foreign Corrupt Practices Act of 1977, as amended (the “Act”); and (ii) the Customer agrees not to engage in any activity in violation of the provisions of the Policy, the Act or any other applicable laws or regulations prohibiting unfair, fraudulent or corrupt business practices, including legal requirements designed to combat terrorism and terrorist activities.
The Customer acknowledges that the products supplied by Key Organics may be subject to export and economic sanctions restrictions of the European Union (“EU”), the United Kingdom, U.S. and other countries ("Export Regulations"). The Customer represents and warrants that it will not use, transfer, release, export or re-export or take any action that could result in the diversion of any Key Organics products or items containing or incorporating any Key Organics products in violation of applicable Export Regulations. The Customer shall screen parties to export transactions against applicable sanctions and denial lists and inform Key Organics if any proposed transaction involves parties on those lists or sanctioned destinations. The Customer shall obtain any approvals that may be required.
The Customer is prohibited from selling or providing goods of Key Organics to any third party if such goods are excluded from delivery according to United Kingdom, EU or U.S. export regulations.
- No Waiver
No delay on the part of Key Organics in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by Key Organics of any right or remedy shall preclude such party from any further exercise of the right or remedy, or the exercise of any other right or remedy.
- Force Majeure
If Key Organics is prevented by force majeure from performing its contractual obligations, in particular from delivering the goods, Key Organics will be released from its obligation to perform for the duration of the impediment and for a reasonable start-up period without being liable towards the Customer for damages. The same applies if the performance of its obligations by Key Organics is unreasonably impeded or becomes temporarily impossible because of unforeseeable circumstances for which Key Organics is not responsible. Such causes include, but are not to, acts of God, actions of the elements, including floods and other natural disasters, fires, explosions, lockouts, strikes, wars, riots, civil commotion, epidemic, embargoes, failure to obtain export licenses or import authorizations, transportation delays and acts of government, energy shortfalls, suppliers’ delivery problems or substantial interruptions of operations. Key Organics shall promptly notify the Customer of such interference, including, without limitation, a detailed description thereof, the date of commencement of such interference and the estimated duration thereof.
Key Organics shall be entitled to terminate the contract if such interference persists for more than ninety (90) days and Key Organics has no longer an interest in performance of the contract due to such interference. After expiration of such period, at the Customer’s request, Key Organics shall declare whether it intends to exercise its rescission right or deliver the products within a reasonable period of time.
In no event shall Key Organics be liable to the Customer for any claims, damages, costs or expenses arising out of or related to Key Organics’ inability to timely ship products or fulfil purchase orders due to a force majeure event.
The Customer agrees for itself and its employees, agents and representatives that the Customer shall not disclose to any third party and shall maintain as confidential, any and all confidential information provided to the Customer by Key Organics. Such confidential information shall include, without limitation, information concerning Key Organics’ or its affiliates’ business, finances, proposed products, product development, marketing and/or sales plans, contracts, these Terms and Conditions, business or operational know-how and any other information deemed confidential by Key Organics.
The legal relationship between the Customer and Key Organics shall be governed by and construed in accordance with the laws of England.
The legal venue for all disputes arising from the business relationship between Key Organics and the Customer is the place of business of Key Organics. Key Organics shall also be entitled to bring legal actions at the place of business of the Customer or any other applicable and permissible legal venue.
The Customer shall pay Key Organics all damages, costs and expenses (including reasonable attorney’s fees) incurred by Key Organics in obtaining injunctive or other relief for the enforcement of any provision of these Terms and Conditions.
If any provision of these Terms and Conditions should be or become wholly or partially void, ineffective or unenforceable, the validity, effectiveness and enforceability of the other provisions of these Terms and Conditions shall not be affected thereby. Any such void, ineffective or unenforceable provision shall be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and purpose of the void, ineffective or unenforceable provision.
- No Waiver
No delay on the part of Key Organics in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by Key Organics of any right or remedy shall preclude such party from any further exercise of the right or remedy, or the exercise of any other right or remedy.
- Chemistry Services
23.1. Quotations and Orders for Chemistry Services
Chemistry Services provided by Key Organics includes full time equivalent (FTE), fee for service (FFE), custom chemistry and/or consultancy. The above provisions are also applicable to the supply of any products resulting from any work undertaken as part of any Chemistry Services provided by Key Organics. Key Organics will use its best endeavours to deliver products from its Chemistry Services in accordance with the agreed deadline and specification(s). However, if at any time Key Organics or the Customer determines that the goals of the project are unattainable due to failure of the chemistry or other, the project may be terminated by Key Organics. The Customer will only be invoiced at full billable rates for the work carried out to the point of termination. The Customer will still be liable for the full cost of any and all raw materials purchased by Key Organics on the Customer’s behalf in order to perform the project.
All quotations that are based on information provided by the customer are provided by Key Organics in good faith. If after commencement of the project it is found that information provided by the customer is incorrect or in the light of additional information from the customer which materially affects the basis of the chemistry on which the quotation was originally based then Key Organics reserves the right to seek additional payment, at its prevailing rates, to cover resulting extra costs. In this eventuality, work on the project may be suspended until agreement on additional payment is reached.
All purchase orders should include a Quotation/Project Number.
Key Organics may impose a cancellation charge of at least 50% for all orders cancelled by the Customer after Key Organics has received a Purchase Order. This charge excludes the full cost of any intermediates and consumables specifically purchased by Key Organics for the project for which the customer will be liable to pay.
Key Organics will attempt to obtain the necessary intermediates required to produce the Products but Key Organics will not be liable for any changes to delivery or the Specifications that are attributable to delays or quality of the intermediates from 3rd parties.
The Customer agrees to provide all agreed information or material (reference standards, experimental details and intermediates) in a timely fashion, however Key Organics shall not be liable for any delays to delivery or changes to Specifications which can be attributed to information or material supplied by the Customer or a 3rd Party acting on their instruction.
If the Customer provides confidential synthetic route details and/or experimental conditions to aid Key Organics to prepare the Product(s) and the intellectual property rights of the compound clearly belong to the Customer then any excess Product(s) prepared above the agreed specifications will be held in storage and the Customer will be contacted to discuss the fate of this excess material.
If the customer does not provide confidential synthetic route details and/or experimental conditions to aid Key Organics to prepare the Product(s) or the Product(s) is already in the Public Domain, then any excess Product(s) prepared above the agreed specifications will be remain the property of Key Organics. At the request of the Customer, Key Organics may agree to divulge how much excess Product(s) is available and provide a quote for the customer to obtain some or this entire excess Product
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