Advisor Terms of Service Agreement
WHEREAS, the Emerging Advisor, LLC (“Company”) has developed a series of presentation materials related to investment and retirement planning known to the Company as the "Retirement Elevated" presentation series; and
WHEREAS, the Company desires to grant to Advisor, and Advisor desires to obtain from Company, the license to market, use, and demonstrate, the Retirement Elevated presentation materials as part of Advisor's services to its clients, pursuant to the terms and conditions to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF USE AND DISTRIBUTION RIGHTS
1.1 Grant and Acceptance. The Company grants to Advisor and Advisor hereby accepts a limited, nonexclusive, non-transferable license to market, use, and demonstrate the Retirement Elevated series of presentation materials, including the Course (defined below) (collectively, the "Presentation") and any copyrights therein or trademarks related thereto directly to end-users in the Market Zone (as defined below) and pursuant to all the terms and conditions of this Agreement.
1.2 Non-Exclusivity. The grant made by the Company to Advisor under this Agreement for the Presentation is non-exclusive, meaning that the Company reserves the right in its sole discretion to market and use the Presentation, directly or indirectly, on its own or through any number of other advisors or distributors, either within or outside the Market Zone, without obligation or liability of any kind to Advisor.
1.3 Independent Contractors. The relationship established between the Company and Advisor by this Agreement is that of independent contractors. Advisor shall not have, and shall not represent to third parties that it has, any express or implied authorization to incur any obligation or commitment on behalf of the Company without the prior written consent of the Company. Advisor shall employ its own personnel, if necessary, to carry out its obligations hereunder, and shall be responsible for all their acts and omissions.
2. TERM AND MARKET ZONE
2.1 Initial Term. The term of this agreement shall be for a period of (1) year commencing on the Effective Date (the "Initial Term").
2.2. Renewal. The term of this Agreement shall be automatically renewed for successive one (1) year periods (each a "Renewal Term," and, together with the Initial Term, the "Term") following expiration of the Initial Term and each Renewal Term of this Agreement. Nothing contained in the Agreement should be interpreted as requiring either Advisor or the Company to renew or extend the Agreement.
2.3 Market Zone. Advisor may use and market the Presentation in their assigned Market Zone(s). Other geographic regions may subsequently be added to the Market Zone for an additional course topics fee(s), as agreed in writing by both Advisor and the Company.
3. CERTAIN RESPONSIBILITIES OF ADVISOR
3.1 No Adverse Conduct. Advisor agrees, and agrees to: (a) to conduct its business in a manner that reflects favorably at all times on the Presentation and the good name, goodwill, and reputation of the Company; (b) to avoid deceptive, misleading, or unethical practices that are or might be detrimental to the Company, the Presentation, customers, or to the public, including but not limited to disparagement of the Company or the Presentation; ( c) not to make false or misleading representations with regard to the Company or the Presentation; ( d) not to publish, employ or cooperate in the publication or employment of any misleading or deceptive advertising material; and ( e) to make no representations, warranties, or guarantees to customers or to the trade with respect to expected returns or income derived from adherence to investment and management strategies set forth in the Presentation which are inconsistent with the literature distributed by the Company, including all warranties and disclaimers contained in such literature.
3.2 Compliance with Laws. Advisor shall comply with all applicable federal, state, and local laws and regulations, including maintaining appropriate professional licensing, in performing its duties hereunder and in any other dealings with respect to the Presentation.
3.3 Change in Ownership of Advisor's Business. Advisor shall promptly notify the Company in writing upon any sale or transfer to a third party of more than 50% of Advisor's assets or outstanding capital stock.
3.4 Expenses. Advisor assumes full responsibility for all costs and expenses which it incurs in carrying out its obligations under this Agreement, including but not limited to all commissions, advertising, marketing, literature, demonstration, travel and accommodation expenses, without any right of reimbursement for any portion thereof from the Company.
3.5 Credentials of Advisor. Advisor represents and warrants to the Company that they are holding a valid Series 65, 66 Investment Advisor License or CFP and applicable health and life insurance license. Advisor shall maintain such licensure in good standing at all times during the Term.
4. PURCHASE PRICE
4.1 Price. Advisor's initial license fee for use of the Presentation materials are payable to the Company immediately upon the execution of this Agreement, shall be:
i. Five Thousand Nine Hundred Ninety-Seven Dollars ($5,997) Flagship Course, "Retirement Planning in Today's Economy." ii. Two Thousand Four Hundred Ninety-Seven Dollars ($2,497) "Your Retirement and Taxes." iii. Two Thousand Four Hundred Ninety-Seven Dollars ($2,497) "Empowering Women for Today's Retirement." iv. Nine Thousand Nine Hundred Ninety-Seven Dollars ($9,997) "Package of 3"
Thereafter, Advisor will pay a license renewal fee equal to the Price in paragraph 4.1 due on the anniversary of the execution of this Agreement for each successive 12 month renewal period.
5. PRODUCT CHANGES
Right to Change Presentation. Subject to the terms of this Section, provided the Company provides Advisor written notice of a change, the Company has the right without consent of Advisor to change the format and content of the Presentation. Advisor may not make any changes or modifications to the Presentation without the express written consent of the Company.
6. LIMITED WARRANTIES; LIMITATION OF DAMAGES AND REMEDIES
6.1 Disclaimers of Certain Warranties. ADVISOR ACKNOWLEDGES AND AGREES THAT ADVISOR HAS INDEPENDENTLY VERIFIED THAT THE PRESENTATION IS APPROPRIATE FOR THE PURPOSES FOR WHICH ADVISOR INTENDS TO USE IT, AND THAT ADVISOR DID NOT RELY UPON ANY SKILL OR JUDGMENT OF THE COMPANY OR ITS OR ITS OFFICERS, EMPLOYEES, LICENSORS, VENDORS AND/OR SUPPLIERS, AS THE CASE MAY BE, IN ELECTING TO USE THE PRESENTATION. ADVISOR ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRESENTATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR OTHER WARRANTIES, CONDITIONS OR TERMS OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, COMPATIBILITY, FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY MADE OUTSIDE OF TIDS AGREEMENT IS EXCLUDED AND SUPERSEDED.
6.2 Disclaimer of Damages. IN NO EVENT WILL THE COMPANY, OR ANY OF ITS LICENSORS, VENDORS, SUPPLIERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES OF ANY OF THE FOREGOING, BE LIABLE TO ADVISOR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF ADVISOR OR A REPRESENTATIVE OF ADVISOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Limitation of Liability: THE COMPANY'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO THE COMPANY BY ADVISOR IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE DAMAGES. ADVISOR ACKNOWLEDGES THAT THE AMOUNTS PAYABLE BY ADVISOR TO THE COMPANY HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
7.1 Termination. Either party may terminate this Agreement at any time for any or no reason, provided the parties rights and obligations hereunder shall survive through the balance of the then existing Term.
7.2 Additional Events of Termination. Notwithstanding Section 7.1 above, either party hereto may terminate this Agreement· any time if: (a) a receiver is appointed for the other party or its property; (b) the other party makes, or attempts to make, an assignment for the benefit of its creditors; ( c) any proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor's relief law; (d) the other party liquidates or dissolves or attempts to liquidate or dissolve; or (e) there is a material breach of this Agreement by a party hereto which results from the willful or grossly negligent act of the breaching party hereto.
7.3 Expiration by Non-Renewal. As provided in Section 2 above, this Agreement will expire at the renewal date of the then current Initial Term or Renewal Term if one party hereto gives to the other party notice of non-renewal at least ninety (90) days prior to its expiration of the then current Term.
7.4 Effect of Termination or Expiration. The expiration or termination of this Agreement, for whatever reason, will not discharge or relieve either party hereto from any obligation which accrued prior to such expiration or termination, will not relieve any party hereto that has breached this Agreement from liability for damages resulting from such breach, and will not destroy or diminish the binding force and effect of any of the provisions of this Agreement that expressly, or by reasonable implication, come into or continue effect on or after expiration or termination hereof. Any termination rights contained in this Section 7 are in addition to, and not in lieu of, any remedies available at law or in equity or elsewhere provided in this Agreement.
7.5 Post-Termination Actions. Subject to Section 7.1 above, upon expiration or termination of this Agreement for any reason, the parties shall have the following rights and obligations:
Return of Confidential Information. Advisor shall return to the Company or destroy, at the Company's option, all Confidential Information (as defined below) related to this Agreement belonging to the other party, including the Presentation and all materials related to the Presentation, that it may have in its possession, and shall provide written verification that such action was taken.
8. ADVERTISING; USE OF TRADEMARKS AND TRADE NAMES
8.1 Trademarks and Trade Names. Advisor shall have the limited right to utilize the Company's trade name and any trademarks and service marks related to the Presentation in connection with Advisor's advertising and promotional materials used for the sale and marketing of the Presentation. Advisor does not have the right to use any trade names, trademarks or service marks aside from the sale and marketing of the Presentation. Advisor's use of such trademark, trade name or service mark shall be in accordance with the Company's policies in effect from time to time. Advisor shall afford the Company reasonable opportunities to inspect and monitor the activities of Advisor in order to ensure Advisor's use of the trademarks is in accordance with the Company's reasonable standards and instructions. Advisor has paid no consideration for the use of the Company's trademarks, trade names or service marks, and nothing contained in this Agreement shall give Advisor any interest in any intellectual property related to the Presentation. Advisor agrees not to attach any additional trademarks, trade names or service marks to any of the Presentation and not to affix any Company trademark, trade name or service mark to any product not produced by the Company. Advisor shall not adopt, use or register any words, phrases or symbols which are identical to or confusingly similar to any of the Company's trademarks related to the Presentation, whether such marks are registered or unregistered.
8.2 Advisor Promotional Materials. Advisor shall use advertising and promotional material involving Presentation only in accordance with the terms and conditions of this Agreement.
9. THE PRESENTATION
9.1 Proprietary Nature of Presentation and Ownership Thereof. Advisor acknowledges and agrees that the Presentation may contain certain valuable Intellectual Property Rights of the Company and/or Confidential Information of the Company, and that no title to or ownership of the Presentation, Intellectual Property Rights, or Confidential Information acquired under this Agreement is transferred to Advisor. Nevertheless, Company acknowledges that Advisor’s use of the Presentation materials to clients and prospective clients will not violate Section 9 of this Agreement or any other Confidentiality provisions herein.
9.2 Injunctive Relief. The Company could be irreparably harmed if Advisor violates the terms and conditions of this Agreement, will have no adequate remedy at law, and will be entitled to injunctive relief.
9.3 Confidential Information. In the course of performance under this Agreement, Advisor may have access to certain Confidential Information (as defined below). The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence by the recipient thereof. Each party hereto agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. Advisor agrees not to use the Confidential Information belonging to the Company except as expressly permitted by this Agreement and not to disclose such Confidential Information to any third party, except as expressly provided for under this Agreement. Any employees of Advisor shall be bound by a similar obligation of confidentiality. "Confidential Information" means any information that is confidential and has unique value to the business of the Company. "Confidential Information" does not include information that (a) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (b) becomes publicly known without fault of the receiving party, (c) is independently developed by the receiving party, (d) is approved for release in writing by the disclosing party, (e) is disclosed without restriction by the disclosing party to a third party, or (f) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties. If one party hereto learns of the misappropriation of any Confidential Information belonging to the other party in violation of this Agreement, the first party hereto shall promptly notify the other party of the misappropriation.
10.1 Notices. All notices and other communication herein provided for shall be sent by postage prepaid, registered or certified mail, return receipt requested, delivered by established, reputable overnight delivery courier services, or delivered personally to the parties at their respective addresses as set forth on the first page and/ or signature page of this Agreement or to such other address as either party hereto shall give to the other party in the manner provided herein for giving notice. Notice by mail shall be considered given three days after mailing. Notice delivered personally or by courier shall be considered given at the time it is delivered.
10.2 Entire Agreement; Authority. This Agreement constitutes the entire agreement with respect to the subject matter hereof between the Company and Advisor. Any prior written or oral negotiations, correspondence, or understandings relating to the subject matter hereof shall be superseded by this Agreement and shall have no force and effect. Advisor represents and warrants that it has full power and authority to enter into this Agreement.
10.3 Severability. If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if the Agreement had been executed with the invalid portion eliminated.
10.4 Governing Law and Consent to Jurisdiction. This Agreement shall be construed and enforced in accordance with the laws of the State of Utah which are applicable to the construction and enforcement of contracts between parties resident in Utah which are entered into and fully performed in Utah. Any action or proceeding brought by either party hereto against the other arising out of or related to this Agreement shall be brought in a state or federal court of competent jurisdiction located in the county of Salt Lake and both parties hereby consent to the jurisdiction and venue of such courts for that purpose.
10.5 Assignment. This Agreement is and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may not be assigned, transferred or granted to any third party by Advisor without the express written permission of the Company, which permission will not be unreasonably withheld. Notwithstanding anything contained herein to the contrary, Advisor my assign his rights hereunder in the event of a merger, acquisition and/or consolidation of his company without first obtaining Company's prior written consent. Any purported assignment in violation hereof shall be null and void.
10.6 Amendments. Any amendments and additions to this contract need to be executed in writing and signed by an authorized representative of both parties.
10.7 Remedies. Except as otherwise provided herein, no remedy made available to either party hereto by any of the provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder now or hereafter existing at law or in equity.
10.8 Waivers. The failure of either party hereto to exercise any of its rights under this Agreement or to require the performance of any term or provision of this Agreement, or the waiver by either party hereto of a breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such rights or be deemed a waiver of any subsequent breach of the same or any other term or provision of this Agreement. A waiver of any right under this Agreement shall be effective only if in writing and signed by the party hereto against which such waiver is to be enforced.
10.9 Attorneys' Fees. If either party hereto elects to pursue legal action to enforce its rights under this Agreement, by arbitration or otherwise, then the prevailing party in such action shall be entitled to receive from the losing party all costs and expenses, including but not limited to the reasonable fees of attorneys, accountants, and other experts, incurred by the prevailing party in investigating and prosecuting (or defending) such action in such arbitration or at the initial trial and appellate levels.
10.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and both of which shall constitute one and the same instrument.
10.11 Interpretation. The headings of the Sections of this Agreement are for convenience of reference only and shall not affect the construction or interpretation of any provisions thereof.
10.12 Rights and Obligations of Third Parties. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation of any third parties to any party hereto, nor shall any provision give any third party any right of subrogation or action against any party hereto.
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Document Name: Advisor Terms of Service Agreement
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