This Webmaster Terms and Conditions Agreement and the Webmaster Acknowledgment (the "Agreement") is entered into by and between you (the "Webmaster") and TB Advertising Services, AVV ("TBAS"), a foreign corporation, doing business as TopBucksMobile.com , upon acceptance of this Agreement evidenced by your electronic signature below and by clicking on the Create Account button on the TopBucksMobile.com sign-up page.
Upon acceptance by Webmaster of the terms and conditions and the Webmaster Acknowledgment contained herein and continued compliance herewith, Webmaster shall be allowed to participate in the TopBucksMobile.com Webmaster Program (the "Program") wherein TBAS shall enable Webmaster to use certain intellectual property of TBAS on Webmaster's Web sites for marketing and promotional purposes and as consideration for any traffic directed by Webmaster to TopBucksMobile.com through Webmaster's marketing and promotional efforts and that converts into revenue to TBAS, TBAS shall pay Webmaster compensation, as set forth in section 3 below.
1.2 WEBMASTER IS PROHIBITED FROM USING ANY FORM OF MASS EMAILING, SOLICITED OR UNSOLICITED, TO PROMOTE TOPBUCKS.COM, ANY OF ITS WEB SITES, OR OTHER WEB SITES OWNED, CONTROLLED, AND/OR OPERATED BY TBAS. Violations of this provision of the Agreement will result in immediate termination of this Agreement. If Webmaster violates this provision and utilizes unsolicited emailing to promote, market, or advertise TopBucksMobile.com, any of its web sites, or other web sites owned, controlled, and/or operated by TBAS, all Program accounts operated by Webmaster will be immediately terminated and Webmaster will be reported to the proper authorities.
1.3 Prohibited Countries: Due to excessive fraud attempts, TBAS may require additional screening for those who reside in the following countries to participate in our program: Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, China, Costa Rica, Croatia, Czech Republic, Estonia, Georgia, Hungary, India, Indonesia, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, North Korea, South Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, and Yugoslavia.
TBAS grants Webmaster each of the following:
2.1 The nonexclusive right to refer, direct or send visitors or users of Webmaster's Web site(s) to web sites owned, controlled and/or operated by TBAS ("TBAS Web sites"); and
2.2 A limited nonexclusive, nontransferable, and revocable license to access and download promotional banners, and other promotional materials created and owned by TBAS for use on Webmaster Web sites for the exclusive purpose of advertising, marketing or promoting TopBucksMobile.com, its web sites, or any other TBAS Web sites. Webmaster may post as many of these banners and other materials on its site(s) as desired.
2.3 TBAS owns and retains all right, title and interest in and to its intellectual property, copyright, trademarks, patents, and in the files, promotional banners and other material provided by TBAS, including all images therein. Upon termination of Webmaster's participation in the Program and/or termination of this Agreement, the grant of right and license set forth in subsection 2.2 above, shall cease and terminate, and Webmaster shall immediately remove all TBAS files, banners, ads, and any and all other TBAS intellectual property, copyrighted material, trademarks, and patents, if any, from Webmaster's Web sites.
2.4 Webmaster is not authorized and shall not change TBAS’ names, file names, trademarks, design logos, banners, ads or other material for any purpose other than as expressly set forth herein or in any modification to this Agreement by TBAS.
2.5 Webmaster further acknowledges and agrees that any such change or changes will be a material breach of this Agreement and shall constitute an infringement of TBAS’ copyrighted and/or trademarked intellectual property.
2.6 Webmaster agrees and covenants to notify TBAS of all Uniform Resource Locator (URL) a.k.a. "Web site" locations where it has published TBAS’ names, file names, trademarks, design logos, banners, ads or other material pursuant to this Agreement, specifically identifying the names, file names, trademarks, design logos, banners, ads or other material posted at each URL. Webmaster further acknowledges and agrees that failure to notify TBAS of these locations constitutes a material breach of this Agreement and each such posting of which Webmaster fails to notify TBAS shall constitute an infringement of TBAS © copyrighted and/or trademarked intellectual property.
2.7 Webmaster may promote on tube sites, torrent sites and peer-to-peer
sites, subject to the following conditions:
TBAS will pay Webmaster for Web traffic to TBAS Target Page(s) from a banner or link posted on web page(s) of Webmaster's site(s) as follows.
3.1 Per Sign-Up Payments: Webmaster will be paid a flat rate of twenty United States Dollars ($20 USD) per new membership sign-up referred via straight or gay sites to TBAS. Webmasters who send over 9 sales per pay period will be eligible to receive and increase in per signup. Please note that receipt of the pay increase is not automatic. Webmasters must notify TBAS that the referred sales volume has reached the required threshold in order to receive the increased per sign-up rate. If notification is not received by the last day of the pay period, the increase in pay will not occur. Check, and Web900 sales do not count towards the increase in pay. In addition to the standard per sign-up rates of $20 USD, TBAS maintains a variety of other payout rates for sites and products on the Program. Click here to review all Payout Rates for the Program.
3.2 Revenue Share Payments: As an alternative to the per sign-up compensation option, TBAS offers a Revenue Sharing option to Webmasters. Under the Revenue Sharing option of the Program, Webmasters of straight and gay programs receive 60% of the gross receipts from referred accounts. For a breakdown of other TopBucksMobile payout rates, visit the rates page.
3.3 All payments are made by check in U.S. dollars. Payments are mailed on the 8th and 23rd of each month. Payment will only be sent if the amount due to Webmaster is at least US $100 depending on which pay method was chosen. Payment will be carried over from week to week until the amount due to Webmaster is at least US $100 depending on pay method that was chosen. A "Pay Period" is defined as a two-week period commencing on the 1st and 16th day of each given month at 12:00 AM Pacific Standard Time and ending two weeks later on the 15th or last day of the month, respectively, at 11:59 PM Pacific Standard Time. If Webmaster is a foreign, non-United States resident participant, Webmaster may request that TBAS withhold payment until the amount due is US$300 or greater, so as to incur lower banking fees.
3.4 Webmaster agrees, by accepting and negotiating payment received from TBAS, that the payment received is payment in full for any and all advertising space and traffic for the Pay Period to which the payment applies.
3.5 A "referral" from a Webmaster Web site entitling Webmaster to a "commission" is defined as follows:
(i) A person who has been directed to an authorized website owned, controlled or operated by TBAS ("TBAS Web site") through the use of a hypertext transfer link residing on Webmaster's Web site in the form of a banner ad or other promotional link which automatically connects any person who clicks on the banner ad or other promotional link to a TBAS Web site, and which banner ad or other promotional link has been supplied to Webmaster as part of the Program; and
(ii) That person who, after having been directed to a TBAS Website through the use of the hyperlink banner ad or other promotional link supplied to Webmaster residing on Webmaster's Website, has been converted into a subscriber or member of a TBAS Website.
3.6 "Webmaster Referral" Program: TBAS will also compensate Webmaster for sales generated by other webmasterss referred to TBAS by the Webmaster. When a new webmaster signs up for the Program through the approved Webmaster Referral link provided to the Webmaster by TBAS, the Webmaster will receive a commission on each sale generated by that referred webmaster. For details on the current commission rates for the TBAS Webmaster Referral program, click here.
(i) Webmasters are prohibited from "referring" their own accounts/sales, as such "self-referrals" will result in termination of all Program accounts operated by the Webmaster.
4.1 Webmaster is not entitled to a commission for any TBAS subscriber sent or referred to a TBAS Website in violation of the terms of this Agreement, or for any TBAS subscriber who does not fall within the terms of paragraphs 3.6 (i) & (ii).
4.2 Webmaster will not be entitled to a commission from TBAS for any subscription that TBAS determines is the result of potential fraudulent activity. TBAS shall have the right, in its sole and absolute discretion, to expand or modify what it determines to constitute potential fraudulent activity. Without limiting the foregoing, potential fraudulent activity includes without limitation, the following circumstances or activities:
(i) The subscriber used or attempts to use a credit card number that is in a "negative database;"
(ii) There are multiple subscriptions from a single Internet Protocol (IP) address within a one (1) month period of time;
(iii) There are sequential or multiple subscriptions under different names, or variations of the same name using the same credit card number, or sequential names or patterns of names using different credit card numbers;
(iv) There is a pattern of "bursting subscriptions" characterized by numerous subscriptions from a Website in a relatively short time span (the "bursting period"), where there has been history of few subscriptions from that Website before or after the bursting period.
(v) There are sequential or multiple attempts to register or subscribe from a credit card using the same "bin number" and sequential or multiple number strings are used to complete the credit card number.
(vi) There are subscriptions from an IP address that matches the IP address Webmaster used in establishing an account in the Program, or an IP address that is otherwise known to be used by Webmaster.
4.3 TBAS has the right to deny or withhold payment from Webmaster, and to terminate Webmaster from the Program, if there is an abnormal number of charge backs or cancellations of memberships or subscriptions which have been referred to TBAS through Webmaster's Websites. TBAS shall determine, in its sole and absolute judgment, what constitutes an abnormal number of charge backs or cancellations of memberships or subscriptions.
5.1 This Agreement is not for any specific term or duration of time. Webmaster may terminate this Agreement at any time, for any reason or no reason, and; this Agreement and/or the Program may be terminated by TBAS, in its sole and absolute discretion, at any time, for any reason or no reason.
5.3 In the event this Agreement is terminated, Webmaster shall be entitled to any unpaid commissions or referral fees earned prior to the date and hour of termination. Webmaster shall not be entitled to receive any commissions or referral fees for any "referrals" delivered or received after the date and time of termination.
5.4 If this Agreement is terminated due to Webmaster's breach of any portion of this Agreement, TBAS reserves the right to withhold any amounts then due and owing.
6.1 Webmaster shall only use and promote on Webmaster Websites TBAS approved advertising banners, links, and other promotional materials.
6.2 Webmaster shall not use or employ any form of mass solicited or unsolicited electronic mailings, newsgroup postings, Instant Messenger chat, IRC postings, adware, spyware, malware marketing or any other form of "spamming" as a means of promoting Webmaster Websites or for the purpose of directing or referring users to any Websites owned, operated or controlled by TBAS.
Webmaster further acknowledges and agrees that TBAS has the right to immediately, and without notice, terminate your participation in the Program if TBAS, in its sole and absolute discretion, concludes that Webmaster has engaged in the use of any form of mass solicited or unsolicited electronic mail solicitations, newsgroup postings, password selling or trading, warez, IRC posting, adware, spyware, malware marketing or any other form of "spamming". NOTE: TBAS HAS ZERO TOLERANCE FOR SPAMMING. IF WEBMASTER SPAMS, PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, WEBMASTER WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO WEBMASTER WILL BE FORFEITED TO TBAS.
TBAS, its subsidiaries, and affiliated entities operate within the laws governing
the adult entertainment business. However, it is the webmaster’s responsibility
to become familiar with and make every effort to continually educate him or herself
of the laws that regulate and govern the adult entertainment industry. TBAS has
provided the links below to some of the laws, as they exist today.
( CLICK HERE TO REVIEW THE TEXT OF THE CAN-SPAM ACT)
( CLICK HERE TO REVIEW THE TEXT OF THE FTC's FINAL RULE)
State Online Registers have been created and are enforced to protect children from receiving communications which advertise a product or service that a minor is prohibited by law from purchasing, viewing, possession, participating in, or otherwise receiving, or which contains or advertises material that is harmful to minors. TBAS is aware of two states, Utah and Michigan, which currently have online registers to protect children. Click on the following links to review:
This list may be amended as enactment of similar laws occurs federally or in other states. Notice to webmaster of said amendments is considered provided by the posting of such amendments hereto. It is the responsibility of webmaster to frequently refer to these terms and conditions for any amendments or modifications thereof. Further, TBAS does not represent or guarantee the above list/links to be all-inclusive and recommends that webmaster independently research and investigate the possibility of other state or federal legislation mandating compliance with online registers or regulating the adult entertainment industry.
If you have questions regarding the law, please consult with an attorney. If you have any questions concerning TopBucksMobile Zero Tolerance Policy, please contact email@example.com
6.4 Except as expressly authorized by TBAS in writing, Webmaster shall not copy, reproduce, alter, modify, change, broadcast, distribute, transmit or disseminate any banners or other promotional or advertising materials provided by TBAS pursuant to this Agreement in whole or in part, in any form or manner, at any time or anywhere in the World.
6.5 Webmaster shall ONLY use Promotional Pictures and Images provided by TBAS to promote sites that are included in the Program. For purposes of this Agreement, Promotional Pictures and Images means any of the images and/or videos provided in zip file format on topbucks.com.
6.6 Webmaster shall disseminate, transmit, broadcast or distribute the material provided through the Program only to consenting adults over the age of eighteen (18) years, twenty-one (21) years in those locations where that is the age of majority.
6.7 All content displayed on any Website containing TBAS banners or links, and all content displayed on any Website to which Webmaster provides third party links to, must comply with all local laws and community standards. Accordingly, Webmaster shall not include, or link to, any of the following within a Website that contains TBAS banners or links, or directly or indirectly link any of the following content or material to any TBAS Website through any hyperlinks maintained or created on Webmaster's Websites:
(i) Material deemed obscene by TBAS, including without limitation, materials depicting bestiality, violence, rape, torture, feces, or urine;
(ii) Any material not in full compliance with the provisions of 18 U.S.C. 2257, and as may be amended by Congress;
(iii) Any material that constitutes child pornography, any material in which persons under the age of eighteen are depicted in actual, simulated, or suggestive sexual situations, or material that involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc. Prohibited material mentioned herein includes the use of the term 'lolita' for any purpose in any fashion including, but not limited to, within meta-based tags;
(iv) Any material deemed by TBAS to be threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
(v) Any material which constitutes an infringement, misappropriation, or violation of any person's intellectual property rights including without limitation, copyrights, trademarks, rights of publicity, patent rights, personal property rights, privacy rights, or any other intellectual property right; or
(vi) Any program, file, data stream, or other material which contains viruses, worms, "Trojan horses," or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs, or inconvenience to any person.
Webmaster hereby represents and warrants each of the following:
7.1 That if Webmaster is an individual person, he/she is over the age of eighteen (18) years;
7.2 That if Webmaster is an entity (i.e., corporation, limited liability company, etc.) that all individuals employed or associated with Webmaster in any way are over the age of eighteen (18) years;
7.3 Webmaster warrants and represents that it owns or operates a lawful, and otherwise valid Internet Web site;7.4 That the individual who provides information pursuant to the Program and accepts this Agreement has full, lawful, power and authority to enter into and to carry out the terms of this Agreement.
8.1All United States residents and corporations, and foreign participants who are residents of the United States, are required to provide a completed and signed United States Department of Treasury Internal Revenue Service Form W-9 setting forth information including a United States Federal Employer Identification Number, or Social Security Number.
9.1 TBAS shall have the right, in its sole and absolute discretion, to terminate the Program and any and all Program Benefits relating to Webmaster's participation in the Program at any time and may do so with or without cause.
9.2 TBAS shall have the right, in its sole and absolute discretion, to change or modify the Program, including without limitation, the right to pay an Webmaster participating in the Program based on "click throughs" rather than a flat commission or fee for a referral, as defined in section 3. If at any time TBAS changes or modifies the Program, Webmaster shall have the right to withdraw and terminate participation in the Program.
10.1 Nothing contained in this Agreement shall create or be deemed to create a partnership, joint venture, or other business combination or venture of any kind between Webmaster and TBAS, its subsidiaries, affiliated entities, successors or assigns; nor shall any term contained in this Agreement constitute or create any agency or employment relationship between Webmaster and TBAS, its subsidiaries, affiliated entities, successors or assigns.
10.2 TBAS has no control over nor ownership interest in Webmaster or Webmaster's Websites, and Webmaster has no financial or other interest in TBAS, its subsidiaries, affiliated entities or any property owned by such entities, except as expressly set forth herein.
11.1 TBAS does not monitor, supervise, or review content contained on Webmaster's Websites. TBAS is not responsible for any content appearing or otherwise distributed on, at, or in association with Webmaster's Websites that is provided by Webmaster or independent third parties.
11.2 TBAS has no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by Webmaster on, at or in association with Webmaster's Website except as specifically set forth in this Agreement.
TBAS makes no guaranty of any kind with respect to the Program or materials provided by, through, or in association with the Program, and all materials are provided to Webmaster "as is," and use of the Program and associated materials is solely at Webmaster's risk.
TBAS disclaims all warranties, either express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose with regard to the Program and any and all materials of every kind supplied to Webmaster as part of this Program.
TBAS cannot guaranty or promise Webmaster any level of success or profitability due to Webmaster's participation in the Program. Webmaster has unilaterally entered into an Internet service business and all risk of loss, cost, and expense of Webmaster doing business shall be borne solely by Webmaster.
Neither party shall be liable for any loss or delay, nor be considered in breach of this Agreement, due to an act of God, fire, natural disaster, terrorist act, strike or other labor stoppage, declaration of war or military intervention, computer system/server failure, network failure, governmental action, or any other cause outside the control of the parties and which cannot be avoided by the exercise of due care.
TBAS, its subsidiaries, affiliated entities, employees, independent contractors, agents, representatives, assigns, and successors shall not be liable to Webmaster, or any other person or entity, for any direct or indirect losses, injuries, or incidental, consequential, or other damages (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any TBAS Website, or arising from or in connection with this Agreement or the use of the TopBucksMobile Program materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of TBAS's services, content, or Program materials, including without limitation any losses due to server problems or due to incorrect placement of HTML.
Webmaster shall indemnify and hold TBAS, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors and any successor-in-interest or assign (the "Indemnified Parties") harmless from any breach of this Agreement by Webmaster, including any use of Program materials other than as expressly authorized in this Agreement. Webmaster agrees that the Indemnified Parties shall have no liability in connection with any such breach or unauthorized use, and Webmaster agrees to indemnify for any resulting loss, damage, judgment, award, cost, expense, and attorneys' fees of the Indemnified Parties. Webmaster shall also indemnify and hold the Indemnified Parties harmless from and against any and all claims brought by third parties arising out of Webmaster's use of the information accessed from a TBAS Website.
17.1 This Agreement shall not, under any circumstances, be transferred or assigned by Webmaster to any other person or entity, and any attempted transfer or assignment of a membership shall be void.
17.2 TBAS may, at any time, in its sole discretion and without prior notice to Webmaster, transfer or assign this Agreement to an affiliated or non-affiliated person or entity.
This Agreement is subject to change or modification by TBAS at any time and changes shall become effective upon notice to Webmaster by e-mail, posting at or via hyperlink to a TBAS Website, or by mail. An Webmaster may not alter, delete, add or change or edit any of these terms and conditions, and any such attempted alteration shall be void and of no effect.
Notices from a TBAS Website to Webmasters may be given by means of electronic messages (email), by general posting on the Website, or by conventional mail. Communications from Webmaster to TBAS may be made by electronic messages (email) or conventional mail, unless otherwise specified in this Agreement.
All notices to TBAS sent by electronic mail shall be to firstname.lastname@example.org.
Notices from TBAS shall be deemed delivered when sent by TBAS to Webmaster; notices of changes or modifications to this Agreement shall be accepted by Webmaster upon the first use by Webmaster of the Materials provided in the Program after such notice was sent; and, such acceptance of a change or modification shall be deemed to relate back to the date such change or modification was originally sent by TBAS.
20.1 This Agreement shall be governed by, and construed only in accordance with, the laws of Aruba, without giving effect to principles of conflicts of laws.
20.2 The parties agree that any dispute between them arising out of or related to this Agreement and the services hereunder shall be resolved by binding arbitration conducted under the Commercial Arbitration Rules of the International Chamber of Commerce in effect as of the date any such action is initiated. This is an exclusive remedy. Unless another venue is agreed to by both parties, any arbitration conducted pursuant to this paragraph shall take place in Aruba. The arbitration and proceedings related thereto shall be conducted in English. A single arbitrator will make a determination and render an award within thirty (30) days of the close of evidence in such arbitration proceeding. The parties waive right to jury trial and agree that the arbitration award will be final and binding and that judgment will be entered thereon in any court of competent jurisdiction. Notwithstanding the foregoing, any party may seek immediate judicial intervention to prevent any unauthorized use or disclosure of the confidential or proprietary information of the party (or those to whom it owes a duty of confidentiality) bringing any such action. In addition, any party may bring an action in a court of competent jurisdiction to enforce (i) the Arbitration, Venue, and Governing Law provsions hereof and (ii) any arbitration award rendered hereunder, and any such action shall not be deemed a waiver of this arbitration requirement or any other provision hereof.
20.3 The venue for any other legal proceedings arising from or connected with this Agreement shall be exclusively in Aruba, and no Party shall have the right to challenge venue based upon forum non conveniens or otherwise. In any legal proceeding (including arbitration) arising from, under or in connection with this Agreement, the prevailing Party shall recover the reasonable attorneys fees and costs incurred in preparation for and in connection with all arbitration, trial and appellate proceedings, along with such other award(s) rendered by the arbiter.
20.4 This Agreement shall be executed in the English language and shall be controlled in all respects by the English language, regardless if this Agreement is translated into another language.
The failure of any party hereto to insist upon strict performance of any covenant or agreement contained herein, or to exercise any option or right, shall not be construed to be a waiver or relinquishment of any such option or right or, of any other covenants or agreements, but the same shall be and remain in full force and effect.
If any provision of this Agreement is held to be invalid or unenforceable, in any respect, such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement, but, to the contrary, this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
This Agreement and any changes or modifications thereto by TBAS and accepted by Webmaster expresses the entire agreement between the parties regarding Webmaster's participation in the Program, and all materials directly and indirectly related thereto, superseding and negating any prior or contemporaneous agreements, whether written or oral. There are no representations, agreements, arrangements, or undertakings relating to the matters addressed which are not fully expressed herein. The headings are for convenience only and shall not be construed to give any substantive meaning to the agreement between the parties. This Agreement shall be construed neutrally and as the commemoration of the mutual assent of both parties rather than for or against either party.
TBAS strongly advises that Webmaster review this Agreement with an attorney before acceptance of its terms so Webmaster is fully apprised of all its rights, duties, and obligations under this Agreement. Webmaster acknowledges that nothing herein and no statement by TBAS or any employee, representative, agent or other person associated with TBAS has in any way prevented or inhibited Webmaster from seeking such independent legal advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and Webmaster has been given reasonable opportunity to seek the advice of independent counsel with respect to this Agreement and all transactions associated herewith.
You hereby acknowledge and agree that physical signatures are not required under this Agreement, and any form of electronic acceptance of the terms of this Agreement, including but not limited to your checking or clicking of an “I agree” or “Create Account” box, shall be permissible and acceptable forms of acceptance by you of the terms of this Agreement.
By CLICKING ON THE "CREATE ACCOUNT" BUTTON on the TopBucksMobile.com Sign-Up Page, and by supplying TBAS with all the information required to create an account on the Program, Webmaster has accepted all of the terms and conditions set forth herein above.