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Fivesound/TERMS AND CONDITIONS

TERMS AND CONDITIONS

Please read the following terms and conditions carefully. These terms and conditions, as well as the copyright policy (the “Copyright Policy “) and the  Privacy Policy (incorporated into this document by this reference and collectively referred to as the “Terms of Service”), govern your access to and use of the TuneCore.com website (the “Site”), including your use of any content, information, products and / or services (the “Services”) included therein. This is a legal agreement between you and FiveSound, LLC. (“Company”). The Company reserves the exclusive right at any time to modify, discontinue or cancel the Site and Services, or modify the Terms of Service without prior notice. It is your responsibility to check these Terms of Service periodically for changes. By continuing to use or access the Site and / or the Services after the Company makes and posts any modifications, you agree to be legally bound by the revised Terms of Service.

YOU UNDERSTAND THAT BY USING THE SERVICES OFFERED BY THE COMPANY THROUGH THE SITE OR WITH RESPECT TO YOUR FIVESOUND ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF THE SERVICE IN FULL, YOU MAY NOT ACCESS OR USE THE SERVICES OFFERED BY THE COMPANY.

  1. CONCESIÓN DE DERECHOS.

(a) The rights granted below will include the sale of Recordings (as defined in Section 2 below) through, without limitation, permanent digital downloads, temporary digital downloads, interactive streaming, non-interactive streaming, cloud services, and the called “disk services” on demand. You and the Company agree that Internet consumer stores (“Consumer Stores”) (eg, Apple Music, Amazon, Spotify, Rhapsody) licensed to exploit your Recordings below must be approved by you.

(b) By clicking the “I Accept” button, you irrevocably grant to the Company, worldwide (the “Territory”) and for the Term (as defined in Section 7 below), the non-exclusive right:

  1. sell, copy, reproduce, communicate to the public, distribute and otherwise exploit the Recordings by all means and means (whether known or existing in the future) (“Sale”) through each and every one of the Stores for the consumer that are operational or available in the future;
  2. collect all the income derived from them; and
  3. to use the name (s), photographs and likenesses, artwork images, biographical information and other information provided by you or the artists whose performances are incorporated in the Recordings in connection with the Recordings and the general business of the Company.

(c) You agree that you will not use the Site or the Services to transmit, route, provide connections or store any material that infringes works protected by copyright or that violates or promotes the violation of the intellectual property rights of third parties.

You acknowledge and agree that the Company may disable access and / or terminate your account and / or remove or disable access to any Recording or any associated material that you provide to the Company in the event that the Company receives any claim that, if true, it would constitute a violation of your representations and warranties below. see the Copyright Policy for more information.

(d) You agree not to participate in (or allow, encourage, enlist, retain or employ third parties to participate) in activities that, in the Company’s sole discretion, constitute Streaming Manipulation.

  1. “Transmission manipulation” means any activity and / or method that involves the artificial creation, by human or non-human means, of online or offline reproductions in audio and / or audiovisual transmission services, where said reproductions do not represent a genuine end. -hearing of the user and / or opinions initiated by genuine consumers and taking place in the reporting country. Streaming manipulation may involve or include, but is not limited to, increasing, generating, or manipulating game counts, sales, tracking counts, engagement activity, or other key metrics used by the Services and / or any Consumer Store, by using from (A) bots, scripts, viruses, worms or any other computer code, file, program or automated process; and / or (B) click farms, troll farms, inauthentic accounts, shared account information, or virtual private networks.
  2. You should be aware that streaming tampering may be the result of the actions of a third party, such as a promotional or marketing company, record label, or music distributor, acting on behalf of an artist or on their own behalf. You are encouraged to investigate and vet any company or individual that you may recruit, retain, or employ to promote or market your music, as they may be liable for broadcast tampering perpetrated by a third party on their behalf. For the avoidance of doubt, any transmission manipulation carried out by a third party on her behalf or related to her recordings constitutes a violation of theseTerms of Service.
  3. The factors used to determine whether any particular consumer or marketing activity is broadcast tampering will vary according to the specific circumstances of each case, and the examples and descriptions of broadcast tampering set forth in this document are not intended to be exhaustive.
  4. Certain Consumer Stores that use your Recordings may also have policies related to fraud and suspicious activity, and you agree that it is your responsibility to know and follow such policies, and those policies will be binding on you below.

(e) In the event that the Company has, in its discretion in good faith, reason to suspect that your account or Recordings have been subjected to, involved or generated income by: violating the Terms of Service; fraud; infringement of copyright, trademark, right of publicity or any other intellectual property right; failure to comply with any third party licensing requirements; o Transmission manipulation (collectively, “Inappropriate Conduct”), the Company reserves the right to (i) interrupt the posting of income, including Net Income or other payments to your account, (ii) block your ability to withdraw funds from the same until the suspicious activities are resolved to the satisfaction of the Company, and (iii) delete any or all of its Recordings from any or all of the Consumer Stores.

(f) In addition, you agree to the following:

  1. You agree to provide the Company with any information that the Company reasonably requests as part of its investigation of Misconduct.
  2. You agree that if a Consumer Store notifies the Company that any of its Recordings have generated revenue, reproductions, or transmissions as a result of inappropriate conduct, such notice will serve as sufficient evidence for the Company to determine, in its good faith discretion. , that such income or plays are the result of inappropriate conduct.
  3. TUpon the Company’s determination that your account or recordings have been subject to, involved, or generated income from misconduct, you agree that all income on your account that the Company has frozen will be forfeited, regardless of whether it was generated from a specific recording. (s) or consumer store.
  4. You agree that the Company’s good faith determination of Misconduct may be based on transmission or other activity that is the same or similar to cases that the Company has previously determined involving Misconduct..
  5. The payment of income to you by the Company does not constitute an acknowledgment by the Company that such income was not the result of Misconduct.
  6. The Company has no obligation to investigate Misconduct unless and until you freeze the income on your account.
  7. If the Company determines that the income generated on your account is the result of inappropriate conduct, and such income has already been paid to you, you agree to return such income to the Company.
  8. You agree that you will not be entitled to a refund of fees paid by you to the Company in the event that the Company disables access to your account, your Recordings and / or any other material that you provide to the Company, or any income lost by you. as established. forward in the previous sentence.
  9. To the extent that the Company, in its good faith discretion, determines that any Misconduct was caused by you or by the actions or omissions of its affiliates or by any third party acting on its behalf or at its direction, any costs incurred by the Company (including legal fees and expenses) in connection therewith, in addition to its other resources, the Company may deduct from any money that is due to you.
  10. If, in the Company’s reasonable business judgment, you choose to retain an attorney to review potential misconduct or review and / or respond to any allegation of misconduct by a third party on your part or associated with your account or recordings , the Company, in its sole discretion, has the right to deduct from your account or charge any alternative payment method that you provide to the Company (such as a PayPal account, credit card, or debit card) (each a “Payment Method payment “) the cost of said commitment, but at least Three Hundred Dollars ($ 300), to offset the costs of associated legal fees and expenses.

(g) The Company will have the right, but not the obligation, to review and / or monitor any activity and content uploaded by you. The Company may investigate any complaint or any reported violation of its policies and may take any action it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspending or terminating service, denying access, and / or removing any material you have uploaded. You agree that the Company reserves the right and may terminate your account in its sole discretion for any reason and at any time, even if, in the good faith discretion of the Company, you are believed to have engaged in misconduct.

  1. RECORDINGS.

The term “Recordings” shall be defined as the sound recordings and audiovisual recordings that you submit to the Company at any time. Company, at its sole discretion, reserves the right to reject any material (including, without limitation, recordings, images, and / or artwork) that you submit. You agree to send all Recordings, images and works of art at your expense, in the format or formats required by the Company or Consumer Stores. Technical descriptions of such formats will be provided to you upon request, provided that the Company reserves the right to convert audio files of the Recordings as necessary to meet the format and / or file size requirements of all Consumer Stores. . In addition, the Company will have the right to correct metadata errors to comply with the requirements of the Consumer Store. The Company undertakes to provide its Recordings to Consumer Stores as quickly as possible, with time frames ranging from a few hours, to a few days and several weeks for the Consumer Stores in particular to ingest and make their Recordings available to consumers. customers. In addition, you agree that the Company and / or its suppliers shall have the right to supplement the existing artwork necessary to complete the packaging of the discs upon request. All reasonable efforts will be made to grant you approval rights to such artwork, but in the event that you object to such artwork, your only recourse will be (a) to provide a suitable replacement artwork or (b ) request the possible interruption of the delivery of your artwork. materials in such a way. Under no circumstances will the Company have any liability to you with respect to the quality, adequacy or other aspect of the creation and delivery of such discs upon request.

  1. PAYMENTS.

(a) The Company will pay you one hundred percent (100%) of the Net Income (as defined in Section 3 (b) below). Net Income will be posted to your Fivesound dasboard in a timely manner after it is received by the Company. Once the payment has been credited to your account, you can withdraw all or part of it at your discretion. You will be responsible for bank fees or other charges related to such withdrawals.

(b) “Net Income” shall be defined as the actual Company receipts from the consumer’s Stores less any taxes, fees or other charges related to the Sale of your Recordings. Any objection related to any accounting statement or any claim arising therefrom must be made (and any claim initiated) no later than one (1) year after the date the statement was rendered, and I hereby waive any statute. of limitations you can afford. by law.

(c) To the extent that you owe any amounts to the Company as a result of the Terms of Service or otherwise, the Company shall be entitled to deduct all or a portion of such amounts from any Net Income otherwise payable to you .

(d) The net income posted on your Fivesound dasboard will be combined in an interest-bearing bank account with the net income of other Fivesound customers until you withdraw those funds. You agree that you will not receive interest or other earnings on the Net Income that the Company manages as its agent and places in such joint account. In consideration for your use of the Services, you irrevocably transfer and assign to the Company any ownership rights that you may have over any interest that may accrue on the Net Income held in said joint account. In addition to or instead of earning interest on such joint account, the Company may receive a reduction in the fees or expenses charged for banking services by the banks that maintain its Net Income.

(e) In connection with your decision to use the Fivesound streaming media player, iPhone app, or other so-called widgets or applications (the “Streaming Players”) as platforms for users to stream your Recordings, you hereby disclaim to any digital artist rights. royalties, performance royalties or any other fees or royalties, statutory or otherwise, that the Company may be required to pay to you or a third party in connection with the use of such Streaming Players. For the avoidance of doubt, to the extent that you use a Streaming Player on your own website or authorize its use on any other website on the Internet, you acknowledge and agree that the Company is not responsible for making payments to third parties in connection with the Recordings. and underlying musical compositions that you own and / or control.

(f) To the extent that you choose to use certain Recordings from your Fivesound catalog for free distribution anywhere (via a Streaming Player, directly through your own website, or otherwise), you agree that it will be the solely responsible for any of the Third Party Payment Obligations mentioned above as a result of such deliveries. Without limiting any of the foregoing, you expressly agree to waive music publishing royalties (if you own or control such rights) or to pay necessary royalties due to third party music publishers as a result of such free distribution.

  1. THIRD PARTY OBLIGATIONS.
  1. (a) You will be solely responsible for insuring and paying for the delivery of the digital phonogram, mechanical, public performance and any other licenses (as applicable) required of the music composition copyright owners or their agents in connection with the exploitation of the Company’s rights hereunder, as well as royalties owed to artists, producers and other persons who acted in the making of the Recordings and all payments that may be required under collective bargaining agreements or pursuant to any legal scheme.

    (b) For sales of digital downloads in the United States, your payment generally includes the mechanical royalty on the underlying composition. For the iTunes Match service, your payment includes a publishing portion that covers both mechanical and public performance royalties. If you do not own or control the underlying composition (s) in your sound recording (s), it is your obligation to pay these publishing royalties to the person or entity that does so. Outside of the United States, the Company normally requires Consumer Stores to insure and pay for music publishing licenses (and such license fees may or may not be deducted by the Consumer Store in question from income payable to the Company) . If any Consumer Store outside of the United States does not agree to insure and pay for music publishing licenses, the Company shall have the right, in its sole discretion, to either (i) decline the license from such Consumer Store or (ii ) assume responsibility for offsetting and paying for music publishing licenses required in connection with Sales from such Consumer Store, license fees which the Company will be entitled to deduct from amounts payable to you below. To the extent that the Company is obligated or elects, in its sole discretion, to pay any of the above amounts, such payments will be deducted from any amount payable to you hereunder.

    (c) To the extent that the Company allows you to select certain Recordings from its TuneCore catalog for free distribution to fans or directly through your own website, you agree that you will be solely responsible for any payment obligations from third parties mentioned above as a result of such deliveries.

  1. GUARANTEE; REPRESENTATIONS; INDEMNIFICATIONS.

(a) You warrant and represent that you are at least eighteen (18) years of age, that you have full right, power and authority to enter into this agreement and to grant the Company all the specified rights; All Recordings, including but not limited to any third-party sample materials incorporated into them, artwork, metadata, audiovisuals, images and any other material provided by you to the Company or related to the Recordings are owned or controlled by you. by you and the use of the same as described or contemplated in this document and / or on the Site and / or the websites of the Consumer Stores will not infringe the copyrights, trademark rights, rights of publicity or other rights of any person or entity; and that Company shall have the right to exploit it in any manner below, free from adverse claims and without any obligation to make any payment of any nature to any person or entity other than amounts payable to you hereunder.

(b) You must defend and indemnify the Company and any of its affiliates (including directors, members, officers, employees and other representatives) and hold them harmless from third party claims or expenses and losses resulting from an infringement or claim that, if true, would constitute a breach of the above representations and warranties or of any of the agreements contained in these Terms of Service, including reasonable attorneys’ fees and expenses.

(c) The Company will promptly notify you of any claim that is subject to the above indemnification obligation and you will defend the Company at your expense with an attorney approved by the Company, whose approval will not be unreasonably denied. In the event that you do not retain an approved attorney, the Company may, if it so chooses, defend itself at its cost and expense and you agree that the Company may require your participation in such defense as a third party or otherwise and hereby waives any objection or claim compensation with respect to them. If a claim is made, the Company shall have the right, in its sole discretion, to remove or disable access to the Recordings and / or any associated material that is the subject of such claim, and / or withhold payment of any monies owed on hereunder in an amount reasonably related to the claim and possible expenses.

(d) THERE ARE NO REPRESENTATIONS OR WARRANTIES BY THE COMPANY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.

  1. SUBSCRIPTION FEE.

In consideration of the services provided below, all Recordings sent by you and distributed by The company to consumer stores require that you purchase a recurring payment subscription through a payment method. Said fees cover the Company’s administrative expenses, artist support and distribution services, and ongoing manual maintenance of its Recordings with Consumer Stores to meet their technical requirements and specifications, and the performance of such work by the Company represents a principal and indivisible part of the Services. These rates may be changed from time to time by the Company without prior notice. You expressly agree that the Company is authorized to deduct your recurring subscription fees, any applicable taxes and other charges that you may incur in connection with your use of the Services directly from your Fivesound account (i.e. your share of the Revenue net) or charge such fees to any Payment Method you provide to the Company. You are solely responsible for all charges, fees, duties, taxes, and evaluations arising from any use that you or anyone else makes of your Fivesound account. If you notify the Company in writing that you are unsubscribing for one or more of your Recordings, no further subscription fees will be charged to your Fivesound account or Payment Method for those Recordings and all completed Recordings will be removed from their respective Stores of consumption. You will not be entitled to a refund of any prepaid fees in respect of canceled Recordings. If for any reason you do not make a payment or if a payment is reversed hereunder through the Payment Method or any other method after accepting these Terms of Service, the Company will be entitled to recover, in its sole discretion, the fee. subscription, by any means necessary, including the right to keep your account active and collect the resulting royalties until the subscription fee is fully recovered. It is your responsibility to notify the Company if your Payment Method has changed by making the appropriate changes to your Fivesound account settings. If you do not provide a valid Payment Method, your service may be disconnected or interrupted at the sole discretion of the Company.

  1. FINISHED.

The Terms of Service will apply at all times while using the Site or Services.

  1. CONFIDENTIALITY.

You acknowledge and agree that, in the course of business negotiations and transactions with the Company, you may become aware of certain confidential information related to the Company’s business and commercial practices. Except to the extent that such information is generally available to third parties or is required to be disclosed by law enforcement, you agree to keep such information confidential. You hereby expressly agree that the Company shall have the right to provide information regarding the sales of its Recordings below to third parties, to aggregate such information in graphics and other comparative informational materials, and to disseminate the same in any manner.

  1. OTHER AGREEMENTS.

You acknowledge that by providing the Services and payments below, the Company will be required to enter into certain agreements with various Consumer Stores. The selection of these Stores for the consumer will be at the sole discretion of the Company. You agree that the Terms of Service will be subject to the applicable terms and conditions of such other agreements that the Company enters into with respect to such Consumer Stores. You expressly acknowledge that certain Consumer Stores may, with respect to audiovisual recordings, require that their audiovisual recordings be available on their websites at certain times and in certain formats in relation to the availability of such materials in other parts of the market. To the extent that such requirements are not met, individual Consumer Stores may have the right to discontinue the availability of such audiovisual recordings in their stores. The Company, upon written request, will provide you with current specific details of such requirements.

  1. BAR CODES AND UNIVERSAL PRODUCT CODES.

The company will provide you with free barcodes and universal product codes (“UPC”). These are for your use only and cannot be transferred or resold. If transferred or resold, the Company will charge you twenty-five dollars ($ 25.00) per barcode or UPC, plus any income you obtain from such transfer or resale. The Company may deduct such charges from any Net Income owed to you by the Company or collect such amounts from any Payment Method that you provide to the Company.

  1. DIVERSE.

(a) The Site and the Services may be used and accessed only for lawful purposes. You agree to comply with all applicable local, state, national, and foreign laws, treaties, and regulations in relation to your use of the Site and the Services, including but not limited to applicable common law, all relevant statutes, and rules and regulations. of the Office of Foreign Assets Control of the United States Department of the Treasury. Furthermore, without limitation, you agree that you will not do any of the following while using or accessing the Site and the Services:

  1. Disable, hack, circumvent, or interfere with the security-related features of the Site or features that prevent or restrict the use or copying of any Company content or material;
  2. Use any metadata, meta tag, or other hidden text that uses a Fivesound name, trademark, URL, or product name;
  3. Upload, send, post, email or transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, so-called pyramid schemes or any other form of solicitation;
  4. Falsify any TCP / IP packet header or any portion of the header information in any post or otherwise use the Site or Services to send altered, misleading or false source identification information;
  5. Upload, post, post, email or otherwise transmit, through the Site or the Services, any Recording or other material that, in the Company’s sole discretion, is illegal, harmful, threatening, obscene, harassing, defamatory or hateful or containing objects or symbols of hatred, invade the privacy of others, contain nudity (including, without limitation, any type of pornography, erotic, child pornography or child erotic), are deceptive, threatening, abusive, incite illegal actions , defamatory, libelous, vulgar. or violent or constitute hate speech or are otherwise objectionable;
  6. Destroy, interfere with, or disrupt, or attempt to interfere with or disrupt, any web page available on the Site, servers or networks connected to the Site, or the technical delivery systems of the Company’s providers, or break any network requirements, procedures, policies, or regulations . connected to the Site;
  7. Attempt to scan, probe, or test the vulnerability of any Company system or network or violate, damage, or circumvent any security or authentication measures that protect and provide security for the Site or the Services;
  8. Attempt to decompile, disassemble, decrypt, or reverse engineer any software used to provide the Site or the Services;
  9. Attempt to search, metasearch, or access the Site with any engine, software, tool, agent, device, or mechanism other than software and / or search agents provided by the Company or other generally available third-party web browsers (for example, Internet Explorer, Firefox, Safari), including but not limited to any software that sends inquiries to the Site to determine how a website or web page is classified;
  10. Collect or store personal data about other users of the Site or Services without their express and explicit permission;
  11. Misrepresent or impersonate your affiliation with any person or entity, under pretext or some other form of social engineering or otherwise commit fraud;
  12. Use the Site or the Services in any way not permitted by the Terms of Service; or
  13. Instruct or encourage any other person to do the above or to breach and / or violate any of the Terms of Service.

(b)The Company does not guarantee the exploitation of the Recordings, which will depend on the consumer’s preference, nor on the inclusion or participation of a specific Consumer Store. The Company reserves the right, in its sole discretion, to refuse to do business with any Consumer Store. Unless specifically stated in the Terms of Service, the Company will have no obligations to you.

(c) The Company will not be considered in breach of the Terms of Service unless you have notified the Company of the breach and the Company has not remedied such breach within thirty (30) days of receipt of such notice. In no event will any breach give you the right to terminate the rights granted hereunder.

(d) In no event shall the Company, its officers, directors, employees or agents be liable to you for any damages, including but not limited to indirect, incidental, special, punitive or consequential damages arising out of or in connection with your use. of the Site, the Services, the Company’s products or any Company content, regardless of whether the damages are foreseeable and whether or not the Company has been informed of the possibility of such damages. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and in no event will the Company’s total liability to you exceed one hundred dollars ($ 100).

(e) The Terms of Service will be governed by and construed in accordance with the laws of the State of New York, excluding all laws related to conflict of laws. Any legal action or proceeding arising under the Terms of Service shall be brought exclusively in the courts located in the state and county of New York, and the parties hereby give their irrevocable consent to personal jurisdiction and venue therein. . The parties to this agreement waive their respective rights to a jury trial. In the event that any provision of the Terms of Service is deemed invalid or unenforceable, the remaining provisions will remain in full force and effect. Failure by one of the parties to enforce any right or provision of the Terms of Service will not be considered a waiver of such right or provision. You may not assign the Terms of Service (by law enforcement or otherwise) without the Company’s prior written consent and any prohibited assignment will be null and void. The Company may assign the Terms of Service or any right or obligation hereunder without your consent. The relationship of the parties under the Terms of Service is that of independent contractors and the Terms of Service shall not be construed to mean that either party is the agent, employee, or joint venture of the other. You agree that the Terms of Service and the rules, restrictions and policies contained in this document, and the application thereof by the Company, are not intended to confer or grant any rights or remedies to anyone other than you. and the Company. The Terms of Service, together with the Company’s rules and policies, constitute the entire agreement between the Company and you with respect to the subject matter hereof. Any notice or other communication provided below will be made in writing and delivered (i) by the Company via email (in each case to your registered email address), (ii) a posting on the Site, or ( iii) by you via Email to Support@fivesound.es or to any other address that the Company may specify in writing. The date of receipt will be considered the date on which said notification is transmitted.

(f) You acknowledge that you have read and understand the Company’s Privacy Policy as more fully described on the Site, and by using the Services and the Site, you have expressly accepted the terms and conditions set forth in said Privacy Policy, as it can be modified. occasionally.

(g) It is your responsibility to deliver all the necessary information, metadata, songs, graphic files or any other information or music in the required format. You acknowledge that the Company will not be obligated to provide its services below until you receive such materials.

(h) In very limited circumstances, the Company may allow you to modify the standard wholesale price that you will receive from the sales of some of your Recordings by a Consumer Store (“Price Variance”), such circumstances will be determined by the Company in its sole discretion. criterion. . In addition and in accordance with the provisions of Section 11 (d) above, in no event will the Company, its officers, directors, employees or agents be liable to you for any claim you may have in relation to any error that occurs in the implementation of said Price Variation, which is not solely and completely caused by the Company’s negligence or error.

(i) You authorize the Company to make and make clips of your Recordings of up to ninety (90) seconds in duration through free transmission or download (the “Clips”) to promote the band, the artist and / or the Sale of the Recordings. corresponding. To the extent that you own or control the publishing rights of the musical compositions incorporated in your Recordings used in the Clips (the “Compositions”), you authorize the Company to make and make clips of your Compositions of up to ninety (90) seconds duration. via streaming or free download to promote the band, the artist and / or the sale of the corresponding recordings. Such clips may be created by the Company or any third party affiliated with the Company using ninety (90) consecutive seconds of the corresponding Recordings.

(j) The Company reserves the right, in its sole discretion, to refuse to provide its services to you or any customer for any or no reason.

(k)If a consumer store rejects an AV master because it does not meet that store’s editorial or technical specifications, you must pay a reshipping fee before resubmitting the master. In case you cannot or do not want to correct errors or quality problems to resend the audiovisual master, there will be no refund of previously paid fees. Fees paid for the initial presentation and any new presentation are not refundable under any circumstances.

 
 
 

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