Revised on August 29, 2018
Welcome to FMG Suite’s Terms of Service (this “Agreement”). This Agreement governs your access to and use of our services as described on www.fmgsuite.com and our affiliate websites and in this Agreement, and include both Software Services and Professional Services, each as defined below (the “Services”). We ask that you read this Agreement carefully before pressing or clicking the “I accept” button.
BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR ACCESSING OR USING THE SERVICES, THE INDIVIDUAL OR ENTITY THAT IS CLICKING ON THE “I ACCEPT” BUTTON AND/OR ACCESSING OR USING THE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AGREES TO BE BOUND BY THE SAME. IN THIS RESPECT, CLICKING THE “I ACCEPT” BUTTON CONSTITUTES YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT AND CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND FMG SUITE, LLC (“FMG SUITE,” “WE,” OR “US,”). THE TERMS “YOU,” “YOUR,” AND “YOURS,” REFER TO THE PARTY ORDERING AND USING OUR SERVICES. BY EXECUTING THIS AGREEMENT VIA THE “I ACCEPT” BUTTON AND/OR ACCESSING OR USING THE SERVICES IF YOU, AN INDIVIDUAL, ARE EMPLOYED WITH AN ENTITY AND ARE EXECUTING THIS AGREEMENT VIA THE “I ACCEPT” BUTTON AND/OR ACCESSING OR USING THE SERVICES ON BEHALF OF THAT ENTITY, YOU REPRESENT AND WARRANT TO FMG SUITE THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY, AND THE TERM “YOU” SHALL REFER TO THE ENTITY.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PRESS “I DO NOT ACCEPT” AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY OF THE SERVICES.
This Agreement is effective on the date you indicate your acceptance of this Agreement, whether by clicking “I Accept” online or by signing a digital or paper version of this Agreement, and except for agreements that govern set-up services we agree to provide to you, this Agreement amends, restates and supersedes any prior agreement relating to your use of our services and retroactively applies to all services we have provided to you since your first use of the FMG Suite Platform (as defined below).
We may amend this Agreement from time to time in our sole discretion, and when we do, we will notify you of the amendments at the email address associated with your account, and, if you have an arrangement by which a third party pays for the Services on your behalf, we will also notify the third party. Your continued use of the Services after notification of such amendments constitutes your acceptance of the Agreement as amended. If you do not agree, your sole remedy is to terminate the Agreement and cease using our Services.
NOTE THAT DISPUTES ABOUT THIS AGREEMENT OR RELATING TO THE SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. See Section 11 for more detail.
Our promise: We will deliver the Services you order in a professional manner using commercially reasonable efforts, as outlined in this Agreement. If you are unsatisfied with the Services we provide, please notify us immediately.
1. OUR SERVICES
1.1 Orders. You may request to license certain Software Services and Professional Services from us under the terms of this Agreement by executing a written Order, referencing this Agreement, and upon the execution by the Parties of such Order, any such Service referenced in such Order shall be deemed included under, and subject to, the terms of this Agreement. Such Orders shall be incorporated into the terms of this Agreement by this reference.
1.2 Software Services.
“Software Services” refers to the software products and services made available through our platform (the “FMG Suite Platform”), including, without limitation, a website hosted on the FMG Suite Platform (“your Website”), email marketing tools, including automated email campaigns and manual email sharing tools (“Email Tools”), print marketing tools, including automated and manual direct mail campaigns and tools (“Direct Mail Tools”), social media marketing tools, including automated social campaigns and manual social media sharing tools (“Social Tools” and together with Email Tools and Direct Mail Tools, “Marketing Tools”), the contact management system (“Contact System”), mobile application (the “Mobile Application”), presentations (“Presentations”), the portal through which Your Website and the Software Services are accessed and managed (the “Platform Admin”), the blog and event tools (“Blog”), Content (as defined below), applications such as Connect2Clients and Digital Fortress and other tools and services that may be added by FMG Suite or its partners from time to time, collectively and individually.
“Professional Services” refers to any professional, consulting, or other services provided to you and/or made available to you by FMG Suite outside of the FMG Suite Platform related to your use of the Software Services, including, without limitation, any setup services such as our white glove transfer, concierge, and exclusive services, copy or blog writing, video creation or other similar services, including but not limited to our Elevate marketing consulting services, branding, copywriting, and logo services, and SEO, SEM (PPC, retargeting, social reach) services, collectively and individually. Professional Services may be performed by FMG Suite or by third party service providers, and may be subject to additional charges or fees.
The specific features and functionality of our Services are dynamic and may change from time to time. We reserve complete and sole discretion with respect to the operation of our Services. We reserve the right to change terms and warranties without notice. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of our Services at any time.
(b) Right to Access and Use the Software Services. During the period of this Agreement (the “Term”), we hereby give you permission to use and access those Software Services you have ordered solely for your own internal business use, subject to the terms and conditions of this Agreement. You are responsible for ensuring that you have the appropriate hardware, software, and connectivity to enable the Services to function as provided under this Agreement. You may access and control the Software Services through a dashboard (the “Platform Admin”) and you are responsible for exercising control over the Software Services through the Platform Admin. For example, (i) you may select or deselect the Content that is on your Website or shared through the Marketing Tools, (ii) you may select the contacts that receive any email communications through Email Tools and the contacts that receive any direct mail communications through Direct Mail Tools (“Contacts”), and (iii) you may control the frequency and type of Content that is posted on your social media accounts through Social Tools. You remain fully liable for and responsible for your Contacts and your social media accounts and your compliance with laws regarding the same. Those are just a few of the examples of the ways you can control the Software Services. If you are a financial professional, you also authorize FMG Suite to give access to the Platform Admin to your broker/dealer or a third party marketing organization (the “Agent”), as designated by you at the time you sign up for our Services or at a later date, to use the Platform Admin and the Software Services on your behalf. We are not responsible for any actions that your Agent may take on your behalf. As between you and FMG Suite, you remain fully liable for and responsible for any actions taken on your behalf by your Agent. If at any time during the Term you would like to remove and/or add a new Agent, please contact us and we will update the Agent’s access to the Platform Admin accordingly.
1.3 Professional Services. We may have provided or will provide Professional Services in connection with the Software Services, including but not limited to an initial build of your Website and additional services related to creating Content on your Website, such as concierge and exclusive setup services, copy writing, blog writing, website change orders, and video live services, among others. Such Professional Services frequently require you to provide us materials, input and feedback (“Input”). The quality and timeliness of the Professional Services is often contingent upon the quality and timeliness of your Input. You agree to remain engaged throughout the process of any Professional Services and to provide us the Input we need in a timely manner. We are not responsible for any delay in our provision of Professional Services that are due to your delay in providing us Input.
1.4 Other Restrictions. You may not (i) attempt to obtain a copy of any element of the Software Services or the FMG Suite Platform, (ii) reverse compile, reverse engineer, reverse assemble or otherwise attempt, directly or indirectly, to obtain or create source code for any element of the Software Services or the FMG Suite Platform, (iii) modify or create derivative works of any element of the Software Services or the FMG Suite Platform, or (iv) sub-license, transfer, distribute, sell or resell any Software Services provided by FMG Suite hereunder. In addition, you will not use the Services or FMG Suite Platform for any purpose that is unlawful or prohibited by these Terms. You may not use the Services in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services or FMG Suite Platform, or any part of the FMG Suite Platform, other accounts, computer systems or networks connected to the Services or FMG Suite Platform, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Services or FMG Suite Platform or any activities conducted on the FMG Suite Platform. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services or FMG Suite Platform, any features that prevent or restrict use or copying of any content accessible through the Services or FMG Suite Platform, or any features that enforce limitations on the use of the Services or FMG Suite Platform or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services or FMG Suite Platform. You agree neither to modify the FMG Suite Platform in any manner or form, nor to use modified versions of the Services or FMG Suite Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Services or FMG Suite Platform. You agree that you will not use any robot, spider, scraper, or other automated means to access the Services or FMG Suite Platform for any purpose without our express written permission or bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Services or FMG Suite Platform.
2.1 Content. The content that may appear in the Software Services (“Content”) is of three types: Your Content, Related Third Party Content, and FMG Suite Content, in each case, as defined below. Content can be logos, trade names, service names, images, text, articles, infographics, blog posts, print marketing materials, videos, or any other type of material that may be displayed via or provided through the Software Services. The ownership of and responsibility for Content is governed by this Agreement.
2.2 Your Content. “Your Content” consists of (i) content from your prior non-FMG Suite website (“Your Prior Website Content”); and (ii) any Content provided to FMG Suite by you (or any person on your behalf or through your account) for use in the Services, whether by email, by uploading such Content to the Software Services through the Platform Admin, or by any other method. Subject to the provisions of this Agreement, you hereby grant to FMG Suite a non-exclusive, worldwide, royalty free, fully paid-up assignable and transferable right and license to copy, download, and use Your Content in connection with providing our Services to you. For the avoidance of doubt, such permission and authorization extends retroactively to any Professional Services provided to you previously. You warrant and represent that you own Your Content without any restriction or that you have a license to use Your Content in the manner contemplated by this Agreement. You are solely responsible for Your Content, and you warrant and represent that it does not and will not infringe upon the intellectual property rights of any third party when used in the manner contemplated by this Agreement. Importantly, you can remove any of Your Prior Website Content from the Software Services at any time through the Platform Admin.
2.3. Related Third Party Content. “Related Third Party Content” consists of Content used in the Services that is provided directly to FMG Suite by a third party with which you have a relationship, such as your broker/dealer, marketing organization or a third party service to which you are a subscriber. You remain fully responsible and liable for all Related Third Party Content provided to us on your behalf. FMG Suite is not responsible for Related Third Party Content and disclaims any and all warranties related to such Third Party Content, including any warranty of non-infringement.
2.4 FMG Suite Content.
(a) “FMG Suite Content” consists of Content used in the Services that is created by FMG Suite or licensed by FMG Suite from a third party, in digital and print format and may include but is not limited to sample/template emails, social media posts, print newsletters, events checklists and invitations (email/social/print), and practice management letters (e.g. letters to clients, employee checklists, etc.) All right, title, and interest in and to the FMG Suite Content is retained by FMG Suite (or its licensors), provided, however, that, subject to the terms and conditions of this Agreement, we hereby grant to you a limited, personal, nonexclusive, nontransferable and nonassignable right and license to use the FMG Suite Content solely in connection with your use of the Software Services during the Term. You may not use the FMG Suite Content for any other purpose. Thus, although you will be allowed to use all FMG Suite Content in the Software Services, you may not re-license, download, sell, rent, or use it for any other purpose. For example (without limitation), you cannot download from the Platform Admin an image we have provided for use on your Website or use the content from one of our articles in another publication. You acknowledge that we will aggressively enforce our intellectual property rights with respect to the FMG Suite Content to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution.
(b) Liquidated Damages. If you (i) use any FMG Suite Content in any way that is not expressly authorized by this Agreement, or (ii) retain any FMG Suite Content past termination of this Agreement and continue to use such FMG Suite Content in breach of this Agreement, or (iii) materially breach your obligations under Section 2.4 above (any of (i)-(iii) is an “FMG Suite Content Breach“), you shall pay to FMG Suite an amount equal to seventy-five percent (75%) of the monthly Purchase Price of the Services divided by thirty (30) for each business day an FMG suite Content Breach continues (the “Liquidated Damages“). The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the harm caused by an FMG Suite Content Breach would be impossible or very difficult to accurately estimate as of the Effective Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from an FMG Suite Content Breach. Your payment of the Liquidated Damages is FMG Suite’s sole liability and entire obligation and your exclusive remedy for any FMG Suite Content Breach.
2.5 Content Transfer upon Termination. If this Agreement is terminated, FMG Suite shall reasonably cooperate with you to assist you in transferring Your Content to a new website or a third party you designate in a format mutually acceptable to both parties. You shall pay FMG Suite’s customary hourly charges for this assistance; and the assistance shall be rendered in good faith after FMG Suite estimates the charges that will be payable for the assistance and after you pay the estimated charges, subject to any agreement between FMG and a third party paying for the Services on your behalf, if any. FMG’s duty in this regard shall cease 15 days after termination. You acknowledge that if you do not take action to accomplish the transfer, Your Content may no longer be available.
3. SERVICE AVAILABILITY; CLIENT INFORMATION; CAN-SPAM
3.1 Provision of Services. We will (a) make the Services available to you pursuant to this Agreement, (b) provide applicable FMG Suite standard support for the Services to you at no additional charge, and (c) use commercially reasonable efforts to make the Software Services available 24 hours a day, 7 days a week, except for: (i) planned downtime or scheduled maintenance, (ii) any unavailability caused by your acts or omissions including without limitation your delay in providing us with Your Content or Input, (iii) problems with your equipment, hardware or software not caused by our acts or omissions, (iv) telecommunications issues, internet connectivity issues, hosting service provider issues or network issues, (v) your breach of this Agreement including but not limited to any unavailability due to disconnection of the Services due to nonpayment or misuse by you, (vi) third party malicious activity, including but not limited to hackers, viruses introduced by third parties, denial of service attacks, or other malicious activity, and (vii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), Internet service provider failure or delay, Non-FMG Suite application (such as Amazon web services), or denial of service attack.
3.2 Mobile Application. If you use the Mobile Application, (i) you hereby authorize FMG Suite to act as your agent and attorney-in-fact with authority to deal directly with Apple and Android with respect to any matters related to the Mobile Application (this is the only matter in relation to which FMG Suite is authorized to act as your agent); (ii) you acknowledge that the correct functioning of the Mobile Application depends on several factors that are beyond FMG Suite’s control, including but not limited to the applicable device, the app store, and the carrier; and any one of these factors may cause the Mobile Application to not operate correctly. The Mobile Application is provided on an “as-is” and “as-available” basis and FMG Suite makes no representations that the Mobile Application will work correctly on any given device or at any given time. FMG Suite may choose whether to support any given device and whether to discontinue support of any given device at any time. Such discontinuance will not entitle you for a refund of any of the fees already paid.
3.3 Security, Confidentiality, and Ownership of Client Information. FMG Suite commits to handle and store all the contact information it receives from you that is contained in the Contact System (“Client Information”) behind an industry standard secure firewall. Client Information does not include Your Content. All Client Information belongs to you and the natural persons who have provided such information using the Website, and FMG Suite will make no claim to ownership of the Client Information. FMG Suite will not use any of the Client Information for its own purposes or provide the Client Information to any third parties, except to comply with Applicable Laws, an investigation by a governmental authority or a subpoena. Notwithstanding the foregoing, FMG Suite may use anonymized data or metadata that is not identified with a specific natural person in order to assemble trends and other large-scale data for benchmarking, statistical generation and other commercial purposes.
3.4 Ownership of Client Relationship. FMG Suite will not intentionally interfere with the relationships between you and your clients. You own, and will continue to own, all the rights to approach clients regarding any commercial relationship, and FMG Suite will make no attempt to assert ownership over any client relationship.
3.5 Data Privacy. You will comply with all Data Protection Laws in connection with the processing of any Personal Data. “Personal Data” means information relating to an identified or identifiable natural person. “Data Protection Laws” means all international, federal, national and state privacy and data protection laws and regulations including, without limitation, the General Data Protection Regulation and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”). You are responsible to learn and comply with CAN-SPAM’s requirements (and the Data Protection Laws applicable in your jurisdiction). In addition, you warrant and represent that you will only use e-mail in your use of the Software Services, including the Email Tools and Contact System, to contact individuals and companies with whom you have a pre-existing commercial relationship. You also warrant and represent that you will not use any e-mail addresses or upload any e-mail addresses to the Contact System that were obtained through the use of scraping or other automated method and that you will not use or upload to the Contact System any e-mail addresses purchased from third parties. You acknowledge that FMG Suite will provide a prominent “unsubscribe” link in each e-mail sent through the Software Services to e-mail address that you provide, and you agree to promptly honor any unsubscribe request. Further, you may not provide Personal Data you receive, whether such Personal Data is from or about you or is from or about any of your customers or potential customers, to FMG Suite or to any third parties without that data subject’s prior written consent. You will implement and maintain a comprehensive data security program that contains administrative, technical, and physical safeguards appropriate to the complexity, nature, and scope of your activities. Your security program must protect the security and confidentiality of Personal Data against unlawful or accidental access to, or unauthorized processing, disclosure, destruction, damage or loss of Personal Data. You are responsible for compliance with all Data Protection Laws in providing your Content and your Contacts to FMG Suite, and shall indemnify us for our use of the same in connection with our provision of the Services.
4. WEBSITE DOMAINS
4.1 Domain Hosting Options. If you have ordered a Website as part of the Software Services, you have three options for hosting the domain of your Website: (1) You may request us to purchase a domain and host it under our account with a third-party service; (2) You may keep your current domain but move the hosting of such domain into our account with a third-party service; or (3) you may keep your current domain hosting provider and bind certain DNS entries for your domain to our servers.
4.2 Domain Management. If you choose to have us host your domain under our account with a third-party service, you hereby license and authorize us to access and use your domain, including your domain name, during the Term. In addition, you acknowledge that we are providing this service to you as a courtesy, free of charge, and that we are not responsible for any interruption in service arising from our use of such third-party service to host your domain. We may also, at our sole discretion, provide you other domain-related services as a courtesy, such as helping you configure MX records for your email system or aliasing certain of your email addresses. We are not responsible for incorrect domain configuration, loss of your data such as email addresses, or other issues arising from such domain-related services we may provide you from time to time as a courtesy.
4.3 Domain Transfer upon Termination. If you choose to have us host your domain under our account with a third-party service, FMG Suite shall reasonably cooperate with you to assist you in transferring your domain name to a server or account that you authorize upon termination of this Agreement. FMG’s duty in this regard shall cease 15 days after termination. You acknowledge that if you do not take action to accomplish the transfer, your domain name may no longer be available.
5. LOCAL SEARCH SERVICES
5.1 Third Party Partner. We use a third-party (the “Local Search Provider”) to provide our Local Search services as described at www.fmgsuite.com (the “Local Search Services”).
5.2 Disclaimer. The Local Search Provider expressly disclaims any express and implied warranties and excludes all liability to the fullest extent permitted under applicable law.
5.3 License. You hereby grant the Local Search Provider a license to use and distribute any and all business listings, logos, marks, materials and other content that you provide us or the Local Search Provider (the “Local Search Content”) in connection with the provision of the Local Search Services. You hereby grant the Local Search Provider the right to grant to its publisher partners nonexclusive, perpetual, irrevocable, royalty-free, unlimited use rights with respect to the Local Search Content, including, but not limited to, rights to publish and syndicate such Local Search Content.
5.4 Rights to Local Search Content. You hereby agree to only provide Local Search Content that you own or otherwise have all rights and permissions necessary to grant all relevant rights and permissions to the Local Search Provider and its publisher partners with respect to the Local Search Content.
5.5 Source of Record for Business Listings. You hereby appoint the Local Search Provider as the source of record for Client’s business listing information.
5.6 Waiver of Class Action Claims Against The Third Party Provider. Where permitted under applicable law, you agree that you may only bring claims against the Third Party Provider only in your individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless you or the Third Party Provider agree otherwise, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding against the Third Party Provider.
5.7 Third-Party Beneficiary. The Third Party Provider shall be an intended third party beneficiary to this Section 5 of this Agreement.
6. BILLING AND PAYMENT
6.1 Third-Party Arrangements. If you are signing up with FMG Suite through an arrangement by which a third party makes payment for you, your payment obligations will be to such third party. We will invoice the third party directly, and they will make payment to us; however, if the third party fails to make timely payment to us, we reserve the right to pursue payment and collections efforts directly against you. If you wish to terminate or make changes to the Services, you will need to work through the third party, who will make arrangements with us for termination of the Services or payment of any additional fees due for your changes to the Services.
(Sections 6.2 through 6.7 apply to you only if you are paying FMG Suite directly.)
6.2 Payment and Interest. Your credit card will be billed on a monthly basis for all Services that are rendered on a monthly basis, such as certain of the Software Services. Your credit card will be billed on a one-time basis for all Services that are rendered on a one-time basis, such as certain of the Professional Services. The provisions governing the amount and timing of payment, including the details related to recurring billing, will be indicated when you sign up for Services. If you fail to make timely payment, the balance of any unpaid amount shall accrue interest at a rate of 1.5% per month, or the highest amount allowed by law, whichever is less.
6.3 Third-Party Processing. In order to protect the privacy and security of your credit information, we use the services of a third-party processor. You acknowledge that we contract with such third-party processor for these purposes and you hereby grant authorization to share information with such third-party processor as necessary for these purposes.
6.4 Recurring Billing. By signing up with FMG Suite, you authorize us to charge you a fee for your initial Term as well as a recurring fee for each subsequent Term. You also authorize us to charge you any other fees you may incur in connection with your use of the Services as described.
6.5 Pricing. Prices for our Services are generally set forth on our website at www.fmgsuite.com or in an Order. We reserve the right to change our prices at any time. We also reserve the right to increase our prices for any Services to which you are subscribed so long as we provide you notice delivered to the email associated with your account at least 15 days prior to the date on which such prices will increase, although, in most cases, we expect to be able to provide more advance notice.
6.6 Refunds. Generally, our fees (including the monthly fee for your membership and any other fees) are nonrefundable. We may make exceptions in our sole and absolute discretion, and any such exceptions do not entitle you to any future discounts or refunds in the future for similar instances.
6.7 Payment Methods. You may update your payment method information by contacting our customer service department via phone or email as set forth on our website. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not update your payment method information or cancel your account, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated, including in the event you attempt to create a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to the Services, the FMG Suite Platform, the Website, or any portion thereof.
7. COMPLIANCE WITH LAWS; RESTRICTIONS
7.1 Applicable Laws. You are responsible for, and you represent and warrant that you are in compliance with, all governmental laws, regulations, rules, and orders (“Applicable Laws”) that relate to you or your business, including but not limited to all laws, regulations, rules, and orders relating to the securities, banking, financial, and insurance industries, and including the CAN-SPAM Act, GDPR, Child Online Privacy Protection Act, and the Digital Millennium Copyright Act, as well as publications, rules, rulings, and findings of the Financial Industry Regulatory Authority (FINRA), Federal Trade Commission (FTC), and the Securities and Exchange Commission (SEC). You are responsible for all licensing required by Applicable Law, including any professional licensing applicable to your business, and you warrant and represent that you are current and in compliance with all such Applicable Laws.
7.2 SEC and FINRA Compliance for Financial Professionals. If you are a financial professional, our Software Services facilitate approvals of Content by you and/or your broker/dealer prior to use in the Software Services. You are responsible to ensure that all Content is compliant with all Applicable Laws. No failure or delay in the transmission of communications between you and your broker/dealer excuses you from this responsibility. We also cannot be held responsible for delays in approval by your broker/dealer. Only certain FMG Suite Content is subject to a no-action letter from FINRA. Other Content is not subject to a no-action letter, such as website copy and images and Content used in campaigns with time-sensitive content, such as the monthly market insight campaign. You are responsible for ensuring that all Content (including FMG Suite Content) used in the Software Services is in full compliance with all Applicable Laws.
7.4 COPPA. The Child Online Privacy Protection Act of 1998 protects the privacy rights of children (under 13). You are responsible to learn and comply with COPPA’s requirements. In addition, you warrant and represent that you will not intentionally market to children under 13 and that you will not gather information of children under 13 in any format or post any personal information (including images) of children under 13 in the Software Services, including on your Website, Blog, or Mobile Application.
7.5 Digital Millennium Copyright Act. FMG Suite complies with the Digital Millennium Copyright Act. FMG Suite does not permit copyright infringing activities and reserves the right to terminate access to the Software Services by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Website Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies FMG Suite may have at law or in equity.
7.6 Account Information. You agree that the information you provide to FMG Suite when you sign up and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you signed up, you were asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account. You authorize us to reset your password at any time.
7.7 Prohibited Conduct. You agree not to:
- Harass, threaten, disrupt or defraud any person through the Services or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment through the Services;
- Impersonate another person or access another user’s account;
- Share FMG Suite-issued passwords with any third party or encourage any other user to do so;
- Permit anyone to use any Services booked under your own subscription;
- Upload material (e.g. virus) that is damaging to computer systems or data of FMG Suite or users of the Software Services, or FMG Suite Platform;
- Upload or post any material that is inappropriately violent, unduly graphic, pornographic, bigoted, derogatory, racist, or offensive, or that violates the intellectual property rights of any third party. We may remove any material that we decide, in our sole discretion, violates the foregoing requirement.
FMG Suite may determine in its sole discretion whether conduct in which you engage violates any or all of these obligations, and it may immediately and unilaterally suspend or terminate your account and access to the FMG Suite Platform, the Website, and the Services for such violation. Exercise of its termination rights hereunder does not preclude the exercise of any other right to which FMG Suite is entitled, either under the law or under this contract. Such rights include, without limitation, the right to refer violating conduct to law enforcement, where FMG Suite believes in its sole discretion that illegal conduct has occurred.
7.8 Your Indemnity. You shall defend, indemnify and hold FMG Suite and its directors, officers, employees, contractors, successors and assigns harmless from and against any loss, damage, liability, expense or costs (including reasonable attorneys’ fees, court costs, and witness fees) suffered or incurred in connection with any third-party claim, suite or proceeding made or brought against FMG Suite arising out of or related to (i) Your Content, Related Third Party Content, and Contacts, and FMG Suite’s use thereof as permitted under this Agreement, (ii) your use of (or inability to use) the Services and the results obtained therefrom, (iii) your violation of any Applicable Laws, and/or (iv) your breach of any of the obligations contained in this Agreement. If FMG Suite seeks indemnification under this Agreement, FMG Suite agrees to (a) promptly give written notice of the third-party claim to you (provided that any delay in providing notice shall not excuse you of your indemnification obligation except and solely to the extent that you are materially prejudiced by the delay); (b) give you sole control of the defense and settlement of the third-party claim (provided that you acknowledge full responsibility to indemnify FMG Suite for any and all losses, damages and costs associated with such claim and shall not settle any third-party claim unless you unconditionally release FMG Suite of all liability); and (c) reasonably cooperate, at your cost, in all material respects with your defense of any such claim.
8. TERM AND TERMINATION
8.1 Term. Unless otherwise specified in a written Order, the Term shall be one month. It shall automatically renew each month for an additional period of one month until either party gives the other party notice of its intent to terminate this Agreement. The termination shall be effective on the last day of the applicable Term in which either party delivered such termination notice. If a third party is paying for the Services on your behalf, you must notify the third party, and the third party must notify us of your termination of the Term.
8.2 Termination for Breach. FMG Suite may terminate this Agreement immediately if in its reasonable judgment it determines that you are in breach of any of the provisions of this Agreement.
8.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason, the license rights granted by FMG Suite to you shall immediately terminate, and you must immediately cease use of the Services. Upon termination of this Agreement for any reason, or upon our written request at any point, you shall promptly return or destroy all copies of the FMG Suite Content, and provide to us a written certification that all copies and modifications in any form have been either returned or destroyed. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without content and domain transfer obligations, limitation of liability and indemnification) will survive termination or expiration and continue in full force and effect.
9. PROPRIETARY RIGHTS
9.1 Proprietary Rights. FMG Suite hereby reserves all intellectual property rights not explicitly granted in this Agreement. As between FMG Suite and you, FMG Suite owns all intellectual property rights in and to the Services and the FMG Suite Platform, and to all related documentation and copies thereof, including without limitation all copyrights, trademarks, patents, trade secrets and other intellectual property (the “Proprietary Rights”), including goodwill or reputation that accrues to FMG Suite’s intellectual property. To the extent that any Proprietary Rights are invented, created, developed, or first reduced to practice under this Agreement, jointly by the parties or in connection with FMG Suite’s provision of Services, including by incorporating your comments or suggestions, FMG Suite will own all right, title, and interest in and to such Proprietary Rights, with no duty to account to you or compensate you with respect to the use and exploitation of the Proprietary Rights.
9.3 Our Indemnity. FMG Suite shall defend you from and against any claim, action, suit or proceeding brought by a third party against you alleging that your use of the Services or FMG Suite Platform in accordance with the provisions of this Agreement infringes a U.S. patent issued as of the Effective Date (each, an “Infringement Claim”). FMG Suite shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by FMG Suite in any settlements arising out of such Infringement Claim; provided, that (i) you promptly give written notice of the third-party claim to FMG Suite; (ii) you give FMG Suite sole control of the defense and settlement of the third-party claim; and (iii) you provide to FMG Suite, at FMG Suite’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by FMG Suite, (ii) made in whole or in part in accordance with your specifications, your Content, or Related Third Party Content, or to infringement arising as a result of (iii) you continuing allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (iv) your use of the Services is not strictly in accordance with this Agreement and any FMG Suite standard policies as published from time to time; (v) the combination, operation, or use of the Services or FMG Suite Platform with third party software, services or other products or materials not furnished by FMG Suite, and (vi) any breach of this Agreement. In the event of such an Infringement Claim or threat thereof, FMG Suite may, in its sole discretion, obtain a license for the infringing part of the Services or FMG Suite Platform, remove or alter the infringing part of the Services or FMG Suite Platform, so long as such removal or alteration does not materially affect the functionality of the Services or FMG Suite Platform, or terminate this Agreement. THIS SECTION STATES THE ENTIRE OBLIGATION AND LIABILITY OF FMG SUITE, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. WARRANTY DISCLAIMER AND LIABILITY LIMITS
10.1 WARRANTY DISCLAIMER. FMG SUITE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. FMG SUITE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NONINFRINGEMENT, TITLE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. FMG SUITE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THE FMG SUITE PLATFORM, OR AGAINST INFRINGEMENT. FMG SUITE DOES NOT WARRANT THAT THE SERVICES OR THE FMG SUITE PLATFORM WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. FMG SUITE DOES NOT WARRANT THAT USE OF THE SERVICES OR FMG SUITE PLATFORM WILL RESULT IN ANY SPECIFIC LEVEL OF INCREASED BUSINESS OR THAT ANY MIGRATION OF YOUR WEBSITE WILL BE ERROR-FREE.
10.2 LIABILITY LIMIT AND CAP. EXCEPT WITH REGARD TO FMG SUITE’S WILLFUL MISCONDUCT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, AND IN CONSIDERATION OF THE RELATIVE RISKS AND REWARDS, FMG SUITE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR LOSS OF BUSINESS, EVEN IF FMG SUITE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; NOR, EXCEPT FOR THOSE ITEMS LISTED ABOVE IN THIS PARAGRAPH, SHALL FMG SUITE’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAYABLE BY YOU TO FMG SUITE FOR THE SERVICES, FMG SUITE PLATFORM AND WEBSITE DURING THE TWELVE MONTHS PRECEDING THE ACT OR OMISSION THAT PRECIPITATED THE CLAIM.
11. BINDING ARBITRATION AND CLASS ACTION WAIVER
11.1 Binding Arbitration and Class Action Waiver if You Live In (or if a Business Your Principal Place of Business Is In) the United States. We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in a court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, combining individual proceedings without the consent of all parties, and any other proceeding where someone acts in a representative capacity are expressly prohibited.
11.2 Arbitration Procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if you are an individual and use the Services for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Services, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To start an arbitration, submit the form available at http://go.microsoft.com/fwlink/?Linkld=245497 to the AAA and mail a copy to us. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in your county of residence (or if a business your principal place of business) or our principal place of business–San Diego County, California. You choose. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
11.3 Disputes Covered–Everything Except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between you and us concerning the Services, the price of the Services, your account, this Agreement, the Initial Agreement or the Billing Authorization, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.
11.4 Mail a Notice of Dispute First. If you have a dispute and our customer service representatives can’t resolve it, send a Notice of Dispute by U.S. Mail to Agency Revolution Attn: Legal Department, 12395 World Trade Drive, Suite 200, San Diego, California 92128 U.S.A. Tell us your name, address, how to contact you, what the problem is, and what you want. We’ll do the same if we have a dispute with you. After 60 days, you or we may start an arbitration if the dispute is unresolved.
11.5 Small Claims Court Option. Instead of mailing a Notice of Dispute, you may sue us in small claims court in your county of residence (or your principal place of business) or San Diego County, California, U.S.A. if you meet the court’s requirements. We hope you’ll mail a Notice of Dispute and give us 60 days to try to work it out, but you don’t have to before going to small claims court.
11.6 Equitable Relief. Notwithstanding the foregoing, each party acknowledges that a breach by a party of Sections 1.1(b) (Right to Access and Use the Software Services), 1.3 (Other Restrictions), 2.4 (FMG Suite Content), 3.5 (Data Privacy), 7.7 (Prohibited Conduct), and 9.1 (Proprietary Rights) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
12. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
12.1 Linked Sites. The Services or FMG Suite Platform may include links or access to other web sites or services (“Linked Sites”) solely as a convenience to users. In addition, with your authorization, and at your direction, FMG Suite may access third-party sites on your behalf, using your credentials for the third-party sites that you enter into FMG Suite yourself. Entering your credentials for such third-party sites into FMG Suite’s Services or Site constitutes your authorization for FMG Suite to access such third-party sites on your behalf. FMG Suite does not control and does not endorse any Linked Sites or third-party sites or the information, material, products, or services contained on Linked Sites or accessible through Linked Sites or third-party sites. Furthermore, FMG Suite makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites or third-party sites. ACCESS AND USE OF LINKED SITES AND THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES AND THIRD-PARTY SITES OR AVAILABLE THROUGH LINKED SITES AND THIRD-PARTY SITES, IS SOLELY AT YOUR OWN RISK. FMG SUITE WILL PROTECT THE SECURITY OF THE CREDENTIALS USED TO ACCESS LINKED SITES AND THIRD-PARTY SITES ONCE YOU HAVE ENTERED THEM INTO FMG SUITE’S SITE, BUT YOU ARE SOLELY RESPONSIBLE TO ENSURE THOSE CREDENTIALS ARE NOT OBTAINED BY A THIRD PARTY OUTSIDE OF FMG SUITE’S SITE.
12.2 Responsibility for dealings with Third Parties. Sometimes promotional plans are offered in conjunction with the provision of third party products and services. We are not responsible for the products and services provided by such third parties, and use of such products and services is at your own risk. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between you and such advertiser. YOU AGREE THAT FMG SUITE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SOFTWARE SERVICES OR FMG SUITE PLATFORM.
13.2 Entire Agreement, Amendment and Additional Terms. This Agreement, including any additional posted guidelines, or rules applicable to particular plans, offers, products, services or features offered by or through the Services, which may be posted and modified from time to time, is the entire and integrated agreement between the parties. It may only be modified in accordance with the “welcome” paragraph at the beginning of this Agreement. All such additional terms are hereby incorporated by reference into this Agreement, provided that in the event of any conflict between such additional terms and this Agreement, this Agreement shall prevail.
13.3 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice or conflict of law provision or rule and without giving effect to the United Nations Convention on the International Sales of Goods. The Parties hereby submit to the exclusive personal jurisdiction of the state and federal courts located in the county of San Diego, State of California.
13.4 Assignment. We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns and licensees. You may assign your rights and obligations under these Terms only after receiving FMG Suite’s written approval, which shall not be withheld unreasonably.
13.5 Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
13.6 Headings. The headings used in the Terms are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
13.7 Attorney Fees, Court Costs. In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
13.8 Waiver. No waiver of any of the provisions of this Agreement by FMG Suite is binding unless authorized in writing by an executive officer of FMG Suite. In the event that FMG Suite waives a breach of any provision of this Agreement, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of this Agreement and will in no manner affect the right of FMG Suite to enforce the same at a later time.
13.9 Force Majeure. FMG Suite will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond FMG Suite’s reasonable control.
13.10 Taxes. You are responsible for all taxes and other governmental fees or charges that are payable by reason of this Agreement, other than taxes on FMG Suite’s net income.
13.11 Independent Contractors. Notwithstanding any reference to being “partners” in this relationship, the parties to this Agreement are independent contracting parties. Neither party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other party, except as expressly provided herein. The parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either party that otherwise might result from such a relationship.
13.12 Government Users. If you are a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that the Service, Site, and Website constitute software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
13.13 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement except for those expressly referenced in Section 5 above.
13.14 Notices. Except as explicitly stated otherwise, legal notices will be served, with respect to FMG Suite, on FMG Suite’s national registered agent, and, with respect to you, to the email address associated with your account. Notice will be deemed given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to either the mailing address or billing address provided during the sign-up process. In such case, notice will be deemed given three days after the date of mailing. Notwithstanding the foregoing, if a third party is paying for the Services on your behalf, we will also send any legal notice to such third party.