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Terms of Use of kwick.de 03.08.2010

Terms of Use for the Online Platform of www.kwick.de

  • Application and Amendments to the Terms of Use
  • Conclusion of the Contract of Use
  • Registration, Termination, Blocking, Deletion
  • Access Data
  • Description of the KWICK! Platform
  • Use of Data and Data Protection
  • Liability of KWICK!
  • Warranties undertaken by the Member
  • Responsibilities and Duties of the Member
  • Electronic Attacks (Hackers, Crawlers, etc.)
  • Legal Consequences in the case of Violation of these Terms of Use
  • Involvement of Third Parties
  • Amendments to the Terms of Use
  • Place of Jurisdiction and Applicable Law
  • Severability Clause


KWICK! Community GmbH & Co. KG (hereinafter "KWICK!") operates an interactive online communication platform at the Internet address www.kwick.de (hereinafter: kwick.de). The online platform of kwick.de is aimed primarily at private persons, additionally also at commercial users (private persons and commercial users hereinafter: Member or User). All Members are prohibited from sending advertising in any form (e.g. e-mails, messages, guest book entries, etc.) to other Members of kwick.de.

 

Note for minors

If you are younger than twelve (12) years old you may not register with KWICK! under any circumstances. However, if you are not fully aware of the consequences of publication of your personal data on the Internet you may not register with KWICK! either. This is because publication of your personal data on the Internet requires your prior consent. In order to be able to declare this consent independently you must have a certain ability to make rational judgements and a certain amount of personal maturity. You must therefore be in a position to assess the significance and consequences of consenting to data processing.

The term "data processing" includes the collection, saving, amendment, transmission, blocking, deletion and use of your personal data, in particular also publication of your personal data on the Internet. Personal data includes all information about your person (e.g. name, age, place of residence, pictures, etc.).

You will be considered unable to make the rational decisions necessary for the declaration of consent if you are not yet twelve (12) years old or if you are unable to appreciate in full the consequences of data processing.

Please therefore read through these Terms of Use and the Data Protection Declaration carefully. Should you be in doubt about whether you completely understand the Terms of Use and the significance and consequences of consenting to data processing, you should ask your parents or guardians to explain the content of the Terms of Use to you in detail. You should also ask them whether they consent to you registering with KWICK!.


1. Application and Amendments to the Terms of Use

1.1 When registering as a Member on kwick.de, the User must actively consent to application of these Terms of Use (hereinafter: Terms of Use) in the box provided. The User is given an opportunity to read the Terms of Use in detail, print them out and/or save them before completing the registration process. Deviating terms of Users which contradict these Terms of Use shall not apply.

1.2 Unless otherwise expressly provided in these Terms of Use and/or on the individual webpages of kwick.de, these Terms of Use shall apply to the use of everything offered by the platform, content, functions and other services (hereinafter collectively: Applications) of kwick.de. The provisions of „FORUM ETIQUTTE“ (APPENDIX 1) also apply to use of the KWICK! FORUM. APPENDIX 1 is an essential component of these Terms of Use.

1.3 Deviating and/or additional terms of third parties can apply with respect to the use of individual services of third parties (cooperation partners, e.g. operators of the mobile phone shop, fan shop, video portal, etc.). In such cases deviating and/or supplementary provisions of third parties shall be drawn to the Member's attention. The use of these services is in accordance with the terms of the respective cooperation partner.

2. Conclusion of the Contract of Use

2.1 A contract of use is concluded between KWICK! and the Member, to which these Terms of Use apply, once the User has completed registration as a Member on kwick.de (no. 3.).

2.2 KWICK! sends an e-mail to the e-mail address provided by the User immediately after registration by way of which KWICK! confirms receipt of the data transmitted during registration and transmits an activation link. Only once this link is activated is a contract of use concluded between the User and KWICK!

2.3 The User has no right to conclusion of a contract of use. KWICK! may refuse membership without stating reasons. In such a case KWICK! shall immediately delete the data input by the User concerned on the registration form. In such a case the user name chosen shall remain blocked for the duration of one month in order to avoid immediate use by another User.

3. Registration, Termination, Blocking, Deletion

3.1 Private persons can become Members of kwick.de from the age of twelve (12). Commercial Users (only natural persons) can become Members of kwick.de if they have full legal capacity and have their seat in the Federal Republic of Germany. If a commercial User wants to become a Member of kwick.de but his company is in the form of a partnership (e.g. partnership under the Civil Code (GbR), partnership (OHG), etc.) or a legal person under private law (e.g. limited liability company (GmbH), stock corporation (AG), etc.), only an authorised representative (natural person) of the same may become a Member of kwick.de. In this case the relationship to the company must be stated (e.g. director, member of the board of directors, Prokurist, etc.). KWICK! is entitled, but not obliged, to check the age and the seat of the User on the basis of suitable official papers. Each registration as Member requires that the User completes all mandatory fields of the registration form.

3.2 On registration the User warrants

  • that he fulfils the prerequisites for registration set out in 3.1;
  • that all data provided by him (mandatory data and voluntary data) – with the exception of the pseudonym (user name) – during registration and/or later amendments are correct;
  • that he will not abuse the platform kwick.de and the data of which he has become aware on kwick.de for purposes of commercial or political advertising or for purposes of recruiting staff and similar;

3.3 The Member shall ensure, in his own interest, that the e-mail address provided by him is correct and can receive e-mails. KWICK! shall not be liable for any disadvantages which result from e-mails not being received. Where personal data of the Member (name, e-mail address, etc.) changes after registration, the Member shall amend his personal profile without undue delay. KWICK! shall not accept any liability for the accuracy of the data provided by the Users.

3.4 Each Member can terminate the use relationship at any time without giving reasons; the easiest way to do this is by deleting his own profile under "SETTINGS" on the My KWICK! page, alternatively in writing (KWICK! Community GmbH & Co. KG, Werkstraße 24, 71384 Weinstadt, Germany), by e-mail (info@kwick.de) or via the chargeable Support Hotline (Mon-Fri: 09:00 - 17:00 hours: 0900 - 1 - 594251 – 1.24 euro/min from the fixed network of Dt. Telekom. Prices of other operators may vary).

3.5 KWICK! can terminate the use relationship at any time observing a notice period of fourteen (14) days. KWICK!'s right to terminate the relationship without notice for good cause (deletion of the profile) and the right to temporarily or permanently block the profile remains unaffected (no. 11.).

3.6 The use relationship shall end when termination takes effect and all information saved in the Member's profile shall be completely deleted. The user name shall remain saved in isolation for one month after termination and blocked for further use on kwick.de for this period. Entries posted by the Member in public forums, blogs, guest books, etc. or those directed at certain groups of persons shall not be deleted; the author of such entries will, however, be marked as deleted and his user name not shown.

3.7 KWICK! has the right to delete profiles of Members who have not logged in to kwick.de for a period of at least six (6) months.

3.8 The Member shall himself be responsible for any data backup he desires. KWICK! shall not assume any liability in this respect.

4. Access Data

4.1 The Member shall treat his access data, in particular his password, strictly confidentially and may not pass it on to third parties or use it together with third parties.

4.2 If the Member should make his User data, in particular passwords, available to third parties or use it or disseminate it in other inappropriate manners, KWICK! is authorised to temporarily block or permanently delete the profile of the Member concerned.

4.3 If the Member has reason to assume that a third party is using his access data and/or his profile, he shall inform KWICK! without undue delay in writing (post, fax, e-mail) and provide KWICK! with all indications and evidence available of such use by a third party.

4.4 The Member has sole responsibility for the use of his access data, in particular passwords, by third parties or for actions or declarations via his profile irrespective of whether or not these are carried out or made with fraudulent intent. A Member who is of age or has full legal capacity shall indemnify KWICK! from all claims of third parties in this respect including the costs of defending claims (legal and court fees) in the statutory amount on first request. This shall not apply if the Member is not responsible for the use by a third party. Any liability by KWICK! for loss or abuse of the access data is excluded.

5. Description of the KWICK! Platform

5.1 On kwick.de private persons registered as Members can, for example, (selection)

  • publish information, contributions and photos about/of himself and friends on his own page, guest books of other Members, in clans, groups, forums or blogs and exchange such information with other Members,
  • send and receive e-mails and messages (short messages),
  • establish and join clans and invite friends or acquaintances to join a clan,
  • search for other Members, Members who are currently online, people's birthdays, classmates and former classmates, contributions, clans, forums, blogs, photos, videos, etc.,
  • search for events or post one's own events,
  • use the kwick.de mobile platform,
  • and make use of numerous further functions.

5.2 Commercial Users registered as Members (hereinafter also: Commercial Members) can use the above-described services of kwick.de subject to the following conditions and restrictions:

  • Commercial Members can establish their own clans and groups and portray their own company in their own profile and their own clans and groups and advertise within these, e.g. by way of texts, information, reports, their own trade marks, pictures, etc..
  • Commercial Members may not invite other Members of kwick.de outside of their own profile to join their own clans or groups (SPAM).
  • Commercial Members may not publish entries in guest books of other Members, in clans, groups, forums or blogs (SPAM).
  • Commercial Members may not send any e-mails, messages and similar to other Members of kwick.de (SPAM).

5.3 The Members are prohibited from any form of commercial use of the services offered on kwick.de and from any form of sending of advertising to Members of kwick.de. Members are not permitted to carry out advertising for third parties, in particular for their products, even within their own profiles, clans, etc. The same applies to links.

5.4 The services offered to registered Members are restricted in part to protect minors.

5.5 KWICK! shall inform registered Members from time to time via newsletter of new aspects, changes and services on the pages. There shall be no right hereto.

5.6 There shall be no right to publication or dissemination of the content entered by the individual Members. KWICK! is entitled to delete published content at any time in whole or in part where this infringes statutes, rights of third parties or the provisions contained in these Terms of Use and their appendices.

5.7 When using the services of kwick.de, in particular in the framework of any communication, the Member shall always show good manners and etiquette (in particular not make insulting, degrading or racist comments). The decision about whether the content is in line with etiquette is at KWICK!'s discretion!

5.8 The content and functions offered on kwick.de are free for Members unless otherwise expressly provided. The User himself shall bear the costs of access to kwick.de (computer, software, modem, telecommunication fees, etc.).

5.9 Where commercial offers by third parties can be found on the webpages of kwick.de (e.g. offers to purchase goods and/or use services of third parties, advertising), these shall be made clear by a corresponding notice (e.g. with the words "This is an offer by ____________ [name/address of the company]" or "Advert"). Where Users conclude contracts on the basis of such offers by third parties, the corresponding contractual relationships shall be exclusively with the third party company concerned, not with KWICK!

6. Use of Data and Data Protection

6.1 KWICK! collects, processes and uses personal data in accordance with the statutory provisions (in particular Telemedia Act, Federal Data Protection Act). Without further consent KWICK! only collects, processes and uses personal data where this is necessary to perform the contract and for use of kwick.de.

6.2 The Data Protection Declaration informs Members about what data is collected, saved and processed for what purpose, the minimum information which must be provided, additional information which the Member can voluntarily provide and how kwick.de protects personal data. The Data Protection Declaration also informs Members about technical questions of data protection (e.g. cookies, log files, etc.).

6.3 KWICK! expressly points out that the data published by Members on kwick.de is made accessible to the general public on a voluntary basis and can also be located by search engines – depending on the "Privacy" settings.

6.4 Since it is not possible to guarantee 100% protection of data on the Internet against unauthorised access by third parties (hackers) on the basis of the current state of the art, despite the highest possible security standards provided for by KLICK! by way of firewalls, which are constantly updated, and further protection measures, KWICK! shall not be held liable for unauthorised access to membership data by third parties who obtain access by way of intentionally overcoming the protective methods used to protect against unauthorised access to saved data.

6.5 KWICK! may, at all times, cease to provide the services of kwick.de without stating reasons with immediate effect in whole or in part and to delete all User data saved. The Member shall bear full responsibility for securing the content it posts. KWICK! shall not assume any liability in this respect. KWICK!'s liability is excluded in particular if any damage caused to the Member is based on it not having carried out data backup procedures and having ensured that lost data can be restored within a reasonable period.

7. Liability of KWICK!

7.1 Liability of KWICK! for the accuracy, completeness, up-to-dateness and legitimacy of the data and content (e.g. profile data, trade marks, company names, products, descriptions, prices, supply periods, applicability, availability, etc. in any form, e.g. text, photos, graphic files, links, etc.) posted by private and Commercial Members and the liability for other content posted by the private Members (blog or guest book entries, messages, etc.) is excluded. This exclusion of liability applies in particular if such content infringes intellectual property rights (trade mark rights, copyrights, etc.) or the personality rights (e.g. general personality right, right in one's own image) of third parties. KWICK! shall not be liable for any abuse of the content posted by the Members by other Members or third parties either. As soon as KWICK! gains knowledge of violations of rights in the content posted by the Members or on the linked third-party sites, KWICK! shall remove this content and/or links within a reasonable period and take all technical and staffing measures possible and reasonable to avoid identical violations of rights in the future.

7.2 KWICK! does not monitor the content posted by the Members on kwick.de by way of a prior check. KWICK! is unable to constantly monitor this third-party content either nor can this be reasonably expected of it without specific indications of a violation of rights. KWICK! is authorised, but is under no obligation, to examine the content or links to websites of third parties posted by the Members with respect to whether they are in accordance with the Terms of Use and statutes and to delete the content or links concerned in whole or in part in the event of a violation of rights or an impending violation of rights.

7.3 KWICK! does not have any influence over the content of linked third-party sites which KWICK! has linked itself and over their content being lawful at the time the link was set up. KWICK! is unable to constantly monitor the content of these third-party websites and, without specific indications of a violation of rights, this cannot be expected of it. As soon as KWICK! gains positive knowledge of violations of rights on these third-party websites, it shall remove such links within a reasonable period.

7.4 KWICK! shall neither be liable for uninterrupted use or availability of kwick.de nor for delays in transmission or downtime caused by technical problems. KWICK! shall, in particular, not be liable for infrastructures functioning correctly or for transmission paths of the Internet which do not lie in KWICK!'s sphere of responsibility or that of its vicarious agents.

7.5 KWICK! shall not be liable for damage caused by force majeure, war, terrorist attacks or natural disasters or by way of other events for which KWICK! is not responsible (e.g. strikes, lock-outs, power cuts, traffic congestion, public orders, etc.).

7.6 KWICK! shall be liable for damage resulting from injury to life, body or health in accordance with the statutory provisions. The same applies to damage caused by intent or gross negligence. In the case of simple negligent infringement of an essential contractual duty (material obligation), KWICK!'s liability shall be restricted to reimbursement of the foreseeable, typical damage. Liability under the Product Liability Act shall remain unaffected by the above provisions. In all other respects, any liability of KWICK! is excluded.

7.7 Where KWICK!'s liability is excluded or restricted, this shall also apply to KWICKS!'s employees, staff, representatives and vicarious agents.

8. Warranties undertaken by the Member

8.1 The Member warrants that the data provided for the profile – with the exception of the pseudonym (user name) – is accurate and that the content posted by him is not in breach of statutory provisions (e.g. Tax Code, Telemedia Act, Federal Data Protection Act, State Treaty on Media Services, Press Laws, Unfair Competition Act, Act regulating Advertising in the Field of Non-Medical Healing, Price Regulation, Youth Protection Act, etc.).

8.2 The Member shall ensure that, with respect to the content posted by him (e.g. profile information, texts, photos, graphics, links, trade marks, company designations, products, descriptions, etc. in any form), he is in possession of all rights required for use on kwick.de and that opposing rights of third parties (e.g. personality rights, trade mark rights, copyrights, etc.) in this respect neither exist nor are violated.

8.3 The Member shall ensure that the content posted by him is in a technically impeccable condition and is virus-free. Those Members who are of age or have full legal capacity shall be liable vis-à-vis KWICK! for any damage which KWICK! suffers as a result of errors, viruses, worms, Trojans, etc. contained in the content posted by him.

8.4 The Commercial Member warrants that all information provided about his company and its range of products (e.g. profile data, trade marks, company designation, products, descriptions, prices, supply periods, applicability, availability, etc. in any form, e.g. texts, graphic files, links, etc.) is accurate.

9. Responsibilities and Duties of the Member

9.1 The Member may use the services of kwick.de exclusively for the purposes in accordance with these Terms of Use. The Member alone shall be responsible for the content it posts on kwick.de.

9.2 The Member may only post content (in particular texts, photos, pictures, marks, symbols, trade marks, company designations, etc. in any form) on kwick.de if he is in possession of the rights necessary for publication on kwick.de

9.3 The Member may send or post messages of any kind (e-mails, messages, guest book entries, etc.) to Members of kwick.de exclusively for the purpose of private communication. In doing so the Member shall refrain from making incorrect, obnoxious, harassing, defamatory, insulting, sexist, extremely political, extremely religious or extremely ideological comments.

9.4 The Member shall not publish or make available to third parties personal data of other Members (e.g. names, photos, telephone and fax numbers, address information, e-mail addresses, etc.) or personal messages of other Members of kwick.de (e.g. e-mails, messages, etc.) without the prior express consent of the person concerned.

9.5 The Member may not publish on kwick.de, exchange or otherwise make available to third parties, access data (in particular passwords) including his own access data for kwick.de, e-mail addresses, postal addresses, telephone numbers, codes or serial numbers of any kind; excluded herefrom is so-called messenger information (e.g. ICQ, MSN, etc) and his own private website.

9.6 The Member may not post any links to websites with illegal content on kwick.de.

9.7 The Member is prohibited from posting any of the following content on kwick.de - irrespective of the form this takes (e.g. in his own profile, in e-mails, messages, guest book entries, forums, groups, etc.) - without this list claiming to be exhaustive: propaganda, names of unconstitutional organisations, incitement of the people, Auschwitz lies, instruction or incitement to commit criminal offences, content glorifying war or violence, portrayal of violence, threat, violation of human rights, advertising drugs, intoxicants or illegal substances of any kind in an open or concealed manner and culpable content of any kind.

9.8 The Member is strictly prohibited from posting or disseminating any erotic portrayal of minors or pornography of any kind on kwick.de irrespective of the form this takes (e.g. in his own profile, in e-mails, messages, guest book entries, forums, groups, etc.).

9.9 The Member is strictly prohibited from any unapproved advertising – irrespective of the form this takes – in particular sending messages with commercial content (advertising, staffing, recruiting, chain letters, pyramid schemes, competitions, lotteries, games of chance, snowball systems, etc.) to other Members of kwick.de and use of personal data of other Members (in particular names, photos, telephone and fax numbers, address information, e-mail addresses, etc.) for commercial purposes of any kind (particularly advertising).

10. Electronic Attacks

10.1 Electronic attacks of any kind on the server/the databases/the network of kwick.de or individual Users are strictly prohibited. Every electronic attack shall lead to immediate exclusion of the responsible Member and shall - where legally possible - be prosecuted under civil and criminal law.

10.2 Electronic attacks shall be, without this list claiming to be exhaustive:

  • Hacking attacks and attempts which serve to overcome, circumvent or otherwise override the security barriers of kwick.de.
  • Intercepting or attempting to intercept personal messages destined for other recipients.
  • Use of computer programs (e.g. crawlers, spiders, bots) to automatically read out, save, process, alter or forward data from databases of kwick.de or to automatically post content on kwick.de, e.g. in his own profile, in e-mails, messages, guest book entries, forums, groups, etc.
  • Culpable use and/or spreading of viruses, worms, Trojans, etc.
  • Use of links, programs or other methods which could or are aimed at damaging the databases/the network of kwick.de or individual Users.
  • Brute force attacks
  • Phishing
  • Posting data or content on kwick.de which is suitable in terms of its type or composition (e.g. errors, viruses, worms, Trojans, etc.), size or dissemination (e.g. spamming, mail bombs, etc.) to put at risk the operation of the computing centre or data network of KWICK! or the computers or programs of Members of kwick.de.

11. Legal Consequences in the case of Violation of these Terms of Use

11.1 If the Member violates one or more than one provision of these Terms of Use, in particular one or more than one of the provisions under nos. 3., 4., 5., 8., 9. and 10., KWICK can block or delete the profile concerned including all data saved there without stating reasons and excluding all compensation claims with immediate effect - depending on the seriousness of the violation in whole or in part, temporarily or permanently. The use relationship ends immediately on deletion. If the Member is of age, has full legal capacity or is of the age of criminal responsibility, the right to assert further claims (e.g. compensation, cease and desist, etc.) and to press criminal charges is reserved.

11.2 Indemnification from liability

A Member who is of age and has full legal capacity shall indemnify KWICK! on first request from all claims which third parties assert against KWICK!, its statutory representative(s) and/or vicarious agents owing to a violation by the Member of the statutory provisions (e.g. Tax Code, Telemedia Act, Federal Data Protection Act, State Treaty on Media Services, Press Laws, Unfair Competition Act, Act regulating Advertising in the Field of Non-Medical Healing, Price Regulation, Youth Protection Act, etc.), of rights of third parties (e.g. personality rights and/or rights in intangible goods and trade mark/copyrights, etc.) or of contractual obligations, warranties or guarantees including the costs of legal defence necessary (legal fees and court fees in the statutory amount). A Member who is of age or has full legal capacity is also under an obligation to assist KWICK! in defending against such claims of third parties to the best of his knowledge and belief and to provide the information and/or details necessary for this purpose.


11.3 Contractual penalty

11.3.1 In the event that incorrect company details and offer information (no. 8.4) are provided intentionally, the Commercial Member shall be obliged to pay to KWICK! a contractual penalty of at least EUR 500.00 (in words five hundred euros) and a maximum of EUR 1,000.00 (in words one thousand euros) to be determined for each individual case depending on the seriousness of the violation at KWICK!'s due discretion.

11.3.2 If a Member who is of age or has full legal capacity should intentionally violate one or more than one provision of


No 9.8 (erotic portrayal of minors, pornography),

No 9.9 (unapproved advertising, use of personal data of other Members for commercial purposes) or

No 10. (electronic attacks) of these Terms of Use,

the Member shall pay to KWICK! a contractual penalty of at least EUR 2,000.00 (in words two thousand euros) and a maximum of EUR 4,000.00 (in words four thousand euros) to be determined for each individual case depending on the seriousness of the violation at KWICK!'s due discretion.


11.3.3 If more than twenty-four (24) hours lie between several identical violations by a Member, these violations shall be considered to be separate violations and the defence of consecutive violations shall be excluded. In such cases the Member who is of age or has full legal capacity shall be liable to pay the contractual penalty for each new violation. The contractual penalty determined by KWICK! in the individual case can be assessed, in the event of a dispute, by the competent court on request by the Member.

11.4 In all of the cases set out in 11.3 above, a Member who is of age or has full legal capacity is obliged, when so requested, to submit a cease and desist declaration under threat of contractual penalty to KWICK! and to reimburse KWICK! the necessary costs for legal proceedings (legal fees) in the statutory amount.

11.5 The assertion of further-reaching claims, particularly compensation claims, remain unaffected as against Members who are of age or have full legal capacity.

12. Involvement of Third Parties

12.1 KWICK! is authorised to assign the rights and duties under these Terms of Use to third parties in whole or in part, in particular to instruct third parties to perform parts of or the entire range of its services. The data protection guarantee shall remain unaffected.

12.2 The Member is not authorised to assign the rights and duties arising from the use relationship to third parties in whole or in part.

13. Amendments to the Terms of Use

KWICK! is authorized to change these Terms of Use at any time without grounds. The amended Terms of Use shall be sent to the User by e-mail two (2) weeks before they take effect. If the User does not object to the application of the amended Terms of Use within two (2) weeks of receipt of the e-mail, the amended Terms of Use shall be deemed accepted. KWICK! shall point out the significance of the two-week period to the User in the e-mail containing the amended Terms of Use. If the User objects to application of the amended Terms of Use, KWICK! may terminate the existing use relationship excluding any compensation claims of the User with immediate effect and delete all data saved under the profile of the User. KWICK! shall point this out separately to the User in the e-mail containing the amended Terms of Use.

14. Place of Jurisdiction and Applicable Law

Where permitted by statute, place of jurisdiction shall be Stuttgart. These Terms of Use and the legal relationship between KWICK! and the Member are subject to the law of the Federal Republic of Germany excluding the provisions of International Private Law and the UN Convention on Contracts for the International Sale of Goods (CISG).

15. Severability Clause

Should individual provisions of these Terms of Use be or become invalid or unenforceable, the effectiveness of the Terms and Conditions and the contract of use shall remain unaffected in all other respects. In place of the invalid or unenforceable provision an effective or enforceable provision shall apply, the economic effects of which most closely reflect what the contractual parties intended to achieve with the ineffective or unenforceable provision. The above provisions shall apply accordingly in the event that the Terms of Use contain a lacuna.

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