Advisor License Agreement

Last Updated:  May 1, 2022

 

This Advisor License Agreement (“Agreement”) is made and entered into by Fisecal, LLC, a New York limited liability company (“Fisecal”) and you (the “Advisor”, “you” and “your”) and governs your right to use Fisecal’s automated financial planning software and lead generation software for financial planners, advisors and coaches (“Software”) on the Advisor’s website provided during registration (“Advisor’s Website”). In addition, you agree to Fisecal’s Terms of Use located at https://fisecal.com/terms-of-use (“Terms of Use”) and Fisecal’s Privacy Policy located at https://fisecal.com/privacy-policy (“Privacy Policy”) applicable to Fisecal’s site generally, which shall be incorporated herein by reference. Such Terms of Use and Privacy Policy may be changed from time to time by Fisecal in its sole and absolute discretion, and any such changes shall be incorporated herein by reference. The parties acknowledge and agree that this Agreement (including without limitation the terms and conditions set forth herein, the Terms of Use, Privacy Policy and any other terms, conditions and/or policies referenced herein) constitutes a legally binding agreement between Fisecal and Advisor.

By entering into this Agreement and/or by accessing and/or using the Software, Advisor acknowledges and agrees that Advisor has read, understands and agrees to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies, terms and conditions or agreements that are or may be established by Fisecal from time to time and the foregoing shall be incorporated herein by reference. The terms and conditions of this Agreement will govern Advisor’s access to and use of the Software. This Agreement is made effective as of the date this Agreement is signed by the Advisor (“Effective Date”). The term of this Agreement shall commence on the Effective Date and continue until terminated as described herein (“Term”).

 

  1. Subscription Plans & Fees.

     

    1. General.  Advisor agrees to pay Fisecal the fees identified for the plan selected by Advisor during Advisor’s sign up process in accordance with the terms and conditions contained herein or as otherwise elected later during the Term by the Advisor (i.e. change in plan).  Notwithstanding anything herein to the contrary, fees and charges are subject to change by Fisecal at any time upon thirty (30) days prior notice to Advisor.  All fees, expenses and taxes due hereunder will be paid in U.S. dollars.  All fees due and payable by Advisor to Fisecal under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.
    2. Plans & Fees. In consideration for the use of the Software, Advisor agrees to pay Fisecal depending on the plan Advisor elects as follows:
      1. Lead Gen Subscription Plan.  In the event Advisor chooses a monthly lead generation subscription plan (“Monthly Lead Gen Subscription Plan”), Advisor shall pay Fisecal a non-refundable monthly fixed fee as indicated by Fisecal in writing, which shall be due and payable in advance, with the first payment due and owing on the Effective Date and each monthly anniversary thereafter unless this Agreement is terminated by either party in accordance with the terms and conditions set forth herein. Fisecal will process the monthly subscription fee on the payment method provided by Advisor to Fisecal during registration (or a different payment method if Advisor changes Advisor’s information and notifies Fisecal in writing of such change). Advisor may cancel its Monthly Lead Gen Subscription Plan at any time upon notice to Fisecal in writing. The term of the Monthly Lead Gen Subscription Plan shall commence on the date Advisor elects such plan through the date either party terminates this Agreement upon at least ten (10) days prior written notice to the other party or as otherwise described herein.
      2. Free ApexMoneyPlan. In the event Advisor chooses the ‘Free ApexMoneyPlan’ (“Free ApexMoneyPlan Subscription”), Advisor shall have access to a free version of the ApexMoneyPlan with limited features and functionality. The Free ApexMoneyPlan’s features and functionality are subject to change at any time, as determined by Fisecal in its sole and absolute discretion. Advisor may upgrade the Free ApexMoneyPlan Subscription to a paid version at any time. The term of the Free ApexMoneyPlan Subscription shall commence on the date Advisor elects such plan (“Free ApexMoneyPlan Subscription Effective Date”) and continue, subject to the terms and conditions of this Agreement, until written notice of termination is provided by one party to the other party.
      3. ApexMoneyPlan.  In the event Advisor chooses the ‘ApexMoneyPlan’ (“ApexMoneyPlan Subscription”), Advisor shall pay Fisecal a non-refundable fixed fee as indicated by Fisecal in writing, which shall be due and payable per the ApexMoneyPlan Subscription Financing Option chosen. The term of the ApexMoneyPlan Subscription shall commence on the date Advisor elects such plan (“ApexMoneyPlan Subscription Effective Date”) and continue, subject to the terms and conditions of this Agreement, until written notice of termination is provided by one party to the other party.
        1. ApexMoneyPlan Subscription Financing Option
          1. Flat Fee. Advisor shall pay Fisecal a non-refundable fixed fee of $2,500.00, which shall be due and payable in advance.
          2. Amortized Flat Fee. Advisor shall pay Fisecal a non-refundable fixed fee of $2,500.00, which shall be due and payable in eleven (11) monthly payments of $208.33 and one (1) monthly payment of $208.37, with the first payment due and owing on the Effective Date and each monthly anniversary thereafter. Fisecal will process the Amortized Flat Fee on the payment method provided by Advisor to Fisecal during registration (or a different payment method if Advisor changes Advisor’s information and notifies Fisecal in writing of such change).
          3. Revenue Financing. Advisor shall pay Fisecal a non-refundable fixed fee of $2,500.00, which shall be due and payable as follows:
            1. Advisor shall pay Fisecal an initial payment of $100.00 due and payable in advance, then
            2. Advisor shall pay Fisecal the greater of: (i) $100.00 per month or (ii) ten percent (10%) of monthly Gross Revenue. Advisor shall make such payments to Fisecal for the lessor of: (a) the time required to pay off the fixed fee or (b) twenty-four (24) months. Gross Revenue means all of the Advisor’s monthly cash receipts, less returns, from all sales of any kind, including prepaid purchases. Advisor must provide proof of the Advisor’s Monthly Gross Revenue by the fifth (5th) day of the following month via screenshot, screen share, or by any other method. Fisecal will process the amount due on the payment method provided by Advisor to Fisecal during registration (or a different payment method if Advisor changes Advisor’s information and notifies Fisecal in writing of such change). Advisor is able to pay off the remaining balance owed at any time with no prepayment penalties. Fisecal will process the remaining balance due, calculated as the fixed fee of $2,500.00 minus any payments made, on the payment method provided by Advisor to Fisecal during registration (or a different payment method if Advisor changes Advisor’s information and notifies Fisecal in writing of such change) in the twenty-fourth (24th) month.
    3. Credit Card Payments; ACH. All fees are non-refundable. Unless otherwise set forth herein, all fees shall be deducted from a payment account designated by Advisor and the processing of such payment is subject to an administrative fee as determined by Fisecal in its sole and absolute discretion.  In addition, if Advisor authorizes Fisecal to do so, Fisecal will retain Advisor’s credit card or other payment information, as applicable, in Fisecal and/or our third party service provider’s database to facilitate Advisor’s payments for future transactions.  Advisor hereby authorize Fisecal to place a pending charge to Advisor’s credit card or other payment information when Advisor enters into this Agreement, and prior to each subsequent periodic charge.  Pending charges are used to verify the validity of Advisor’s payment information, and is temporary, and will not be converted into an actual charge.  While pending, however, such charges reduce the available amount of credit in Advisor’s account in the amount of $1.00 per pending charge.  Advisor acknowledges and agrees that if Advisor fraudulently reports its payment card as stolen, or fraudulently reports that an authorized charge by Fisecal and/or its authorized agent is unauthorized, Fisecal may, in its sole discretion, pursue any available rights or remedies at law or in equity, including, without limitation, the right to terminate this Agreement and Advisor’s ability to use the Software. Advisor authorizes Fisecal to automatically charge the payment account for the fees in advance or as otherwise agreed to by the parties in writing.  If Advisor’s payment account on file is closed, or if, for any reason, a charge is rejected by Advisor’s payment account, Advisor shall immediately update Advisor’s payment account or supply a new payment account, as appropriate.  If Advisor is unable to update its payment account with appropriate information, then Fisecal will send an invoice to Advisor detailing the amount due.  Advisor must pay the amount due in full within seven (7) days after the date of the invoice.  Advisor is solely responsible for any and all fees charged to Advisor’s payment card by the issuer, bank, or financial institution including, but not limited to, overdraft, insufficient funds and over the credit limit fees.
    4. Taxes. Fees are exclusive of applicable taxes.  Advisor is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement (collectively, “Taxes”) except for taxes based on Fisecal’s net income and/or payroll taxes.  Advisor will indemnify, defend and hold harmless Fisecal for all taxes imposed which may be attributable to the Advisory Services.
    5. Late Payment. In the event that fees are not paid on a timely basis, including without limitation due to an invalid or expired credit card number, Fisecal may, in addition to other available remedies, demand deletion of the Software and return of Fisecal’s Confidential Information if any fees are not paid on the date such fees are due and payable hereunder. Advisor acknowledges and agrees that Fisecal shall not be in breach of this Agreement or liable for failure to perform in the event Advisor fails to make payments when due hereunder. All expenses associated with the collection of fees (including reasonable attorney’s fees) shall be the responsibility of the Advisor.

 

  1. Ownership & License Grant.

     

    1. Subject to Advisor’s compliance with the terms and conditions of this Agreement, Fisecal hereby grants Advisor a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Software on Advisor’s Website and in relation to Advisor providing financial guidance to consumers (“Advisor’s Clients”) which may include without limitation development of written financial plans for Advisor’s Clients, general recommendations for a course of activity or specific actions to be taken by Advisor’s Clients, budgeting, investment guidance, goal planning, phone consultations with Advisor’s Clients, email support, and other services described herein (“Advisory Services”).  During the Term, Advisor will place the Software as may be directed by Fisecal on Advisor’s website; and (b) integrate use of the Software with the Advisor’s website in accordance with the instructions provided to Advisor by Fisecal in writing. During the Term, Fisecal may, in its sole discretion, make available to Advisor updates, patches and bug fixes for the Software as may, from time to time, be made generally available by Fisecal to its other advisor customers.  Advisor will apply any such updates, patches and bug fixes within five (5) days from its receipt of the foregoing.  Fisecal reserves the right to (i) correct any errors, inaccuracies, and/or omissions with respect to the Software, and/or (ii) make changes to Software without obligation to issue any notice of such changes, unless required by law. The Software may be modified, updated, suspended and/or discontinued by Fisecal at any time without liability.  Fisecal may require Advisor to include “powered by Fisecal” or other markings as determined by Fisecal in its sole and absolute discretion.  In addition, Advisor may request customizations to the Software from time to time. In such event, the parties agree to discuss and document any details related to the agreed upon customizations, fees and payment terms related thereto in writing. In the event Advisor allows Advisor’s Clients to use the Software, Advisor shall pass through all terms and conditions related to Fisecal’s IP (as defined below) to such Advisor’s Clients and Advisor shall be liable for any failure to comply.
    2. Except as expressly permitted hereunder, Advisor shall not, directly or indirectly, without the express, prior written consent of Fisecal (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, assign or transfer the Software or any portion thereof, or any of Advisor’s rights thereto, (ii) merge any Software or any portion thereof with any other program or materials, (iii) copy, adapt, modify, make error corrections to the Software in whole or in part, reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Software, or any other IP provided or made available by Fisecal, (iv) translate, localize, port, or otherwise modify any Software, or any other IP provided or made available by Fisecal, (v) make any derivative works based on the Software, (vi) remove, obliterate, modify, obscure or cancel from view any copyright, trademark, or other proprietary or confidentiality notice appearing on any materials provided or made available by Fisecal, or fail to reproduce any such notice on any copy made of any such materials, (vii) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Software, Fisecal’s business operations or other customers, (viii) copy or imitate part or all of the design, layout or look and feel of the Software in any form or media and/or access the Software in order to build a similar or competitive product, or (ix) permit any other user, person and/or entity to engage in any of the foregoing conduct.  In the event of Advisor’s breach of this Section, Fisecal may terminate Advisor’s account immediately without notice or liability. Advisor shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Software that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, sexually harassing,  or racially or ethnically offensive, (b) facilitates illegal activity, and/or (c) causes damage or injury to any person or property.  “Virus” shall mean any thing or device which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, service or device.   Fisecal retains all right, title, interest and ownership of, any and all IP and proprietary rights with respect to the Software and any other materials provided or made available to Advisor by Fisecal.  “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights.  Except for the rights expressly granted to Advisor in this Agreement, the Software, customizations (if any) and other materials that are provided or made available, and all work product that is developed, under this Agreement (including without limitation any custom designs, custom code, or any other customizations for Advisor), all modifications, compilations, and derivative works thereof, and all IP and proprietary rights pertaining thereto, are and shall remain the property of Fisecal and its respective licensors, and Advisor hereby assigns all such ownership rights to Fisecal as necessary. Except for the rights expressly granted to Advisor in this Agreement, all data or information provided by, accessed from or through the Software and all data resulting from Fisecal’s processing and/or aggregation of such data (collectively the “Data”) is, or will be, and will remain, the sole and exclusive property of Fisecal and will be deemed Confidential Information of Fisecal. Subject to Advisor’s payment of all fees and compliance with this Agreement, Fisecal shall grant Advisor a worldwide, non-exclusive right, non-transferable license to utilize the Data in relation to the Advisory Services.   Advisor acknowledges and agrees that Fisecal may use any feedback, suggestions, improvements, enhancements, recommendations and/or feature requests relating to the Software and/or Fisecal’s other products and/or services (“Feedback”), and you grant to Fisecal a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate any such Feedback. Fisecal has no obligations to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion.
    3. Advisor agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and shall notify Fisecal immediately of any such unauthorized access or use. Advisor acknowledges and agrees that (i) Fisecal is not liable for the Advisor’s Website, services and/or products; (ii) Fisecal cannot provide assistance with the Advisor’s Website, services and/or products; (iii) Advisor is solely responsible for any liability which may arise from Advisor’s Website, services, products and relationship with Advisor’s Clients. Advisor shall defend, indemnify and hold harmless Fisecal from and against any and all claims, losses, liabilities, expenses or damages, including without limitation attorney’s fees, arising from and/or relating to any breach of the terms and conditions set forth herein by Advisor and/or in relation to Advisor’s relationship with Advisor’s Clients and/or in relation to Advisor’s Website, products and/or services.
    4. Advisor hereby grants Fisecal a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy, display and use Advisor’s trademarks, service marks and logos (“Advisor Marks”).  Advisor represents and warrants that it owns all Advisor Marks, or that Advisor has permission from the rightful owner to use each of the elements of Advisor Marks, and to grant the rights described herein.  Advisor will defend, indemnify, and hold harmless Fisecal from and against any and all costs, losses, fines, or expenses, including reasonable attorneys’ fees, that such party may incur by reason of any third-party claims arising out of and/or in connection with this Section.
    5. Client Information.  Advisor may have access to certain information of Advisor’s Clients including without limitation Advisor’s Client financial information (“Client Information”).  Fisecal will be free (during and after the Term) to (i) use such non-identifiable Client Information to improve and/or enhance the Software and for other development, diagnostic and/or corrective purposes in connection with the Software and other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Fisecal does not review Client Information for any other purpose, including but not limited to accuracy, legality and/or non­infringement. During the performance of the Advisory Services, Advisor may have access to and/or be able to view Client Information and/or otherwise review Advisor’s Client’s accounts concurrently with Advisor’s Clients (known as “co-browsing”). Co-browsing may occur during interactions between the Advisor and the Advisor’s Client for purposes of discussing and/or clarifying financial records or other Client Information.  Fisecal agrees that it will not use Client Information for recruitment, contact, or poaching.

 

  1. Termination.

     

    1. Termination for Breach.  If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party.  Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, at law and/or in equity.
    2. Termination for Convenience.  Fisecal may terminate this Agreement at any time upon notice to Advisor.  Advisor may terminate this Agreement in accordance with the subscription plan chosen by Advisor and as further described herein.
    3. Effect of Termination. In the event of termination of this Agreement, Advisor shall cease using the Software immediately and either return the Software to Fisecal or destroy and certify the destruction of such Software, as indicated by Fisecal in its sole and absolute discretion.

 

  1. Indemnification.

Advisor agrees to indemnify, defend and hold Fisecal and its affiliates, their respective officers, directors and employees (“Indemnified Parties”) harmless against any and all claims, costs, damages, liabilities, judgments and expenses, including but not limited to direct, incidental, consequential, exemplary and indirect damages and the fees, costs and expenses of counsel, experts or other consultants retained by the Indemnified Parties (“Losses”) which directly relate to or arise out of Advisor’s acts and/or omissions in relation to Advisory Services, access to and/or use of the Services and/or otherwise.

 

  1. Limitation of Liability.

FISECAL’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL FISECAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. Warranties.

     

    1. Each party represents and warrants that (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws; (ii) it has the requisite legal and corporate power, right, and authority to enter into this Agreement and perform its obligations hereunder; and (iii) to the best of each party’s knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder.
    2. Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, FISECAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE SOFTWARE IS PROVIDED BY FISECAL ON AN “AS-IS” BASIS.  FISECAL DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SOFTWARE PROVIDED BY FISECAL IN CONNECTION WITH THIS AGREEMENT, IS OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. ADVISOR ACKNOWLEDGES AND AGREES THAT FISECAL IS NOT RESPONSIBLE FOR ACTS, OMISSIONS AND/OR ERRORS CAUSED BY THIRD PARTIES INCLUDING WITHOUT LIMITATION ADVISOR CLIENTS. FISECAL DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SOFTWARE WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE.  FISECAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SOFTWARE IS DEPENDENT ON.

 

  1. Notices.

All electronic written notices to Advisor shall be sent to Advisor’s email address provided at registration unless Advisor notifies Fisecal otherwise in writing.  All electronic written notices to Fisecal shall be sent to info@fisecal.com. All non-electronic written notices to Fisecal shall be to:

Fisecal, LLC
435 w 57th St, Suite 6P, NYC, NY 10019

Notices will be deemed to have been given at the time of delivery, if delivered in person or transmitted via email, or within three business days from the date of posting if sent by registered mail.

 

  1. Confidentiality.

     

    1. Confidential Information. During the Term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: all data, materials, products, technology, computer programs, specifications, manuals, software, marketing plans, business plans, financial information, business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures, techniques and/or other information disclosed or submitted, orally, in writing, or by any other media, that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement (“Confidential Information”).  The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
    2. Obligations. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement and as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Software in accordance with this.  The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement.  The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article) to keep such Confidential Information confidential.  The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.
    3. Exclusions.  Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
    4. Legal Requirements.  If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.  If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
    5. Confidentiality Breach.  The parties agree that ownership of any IP in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party.
    6. Disposition of Confidential Information on Termination.  Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control.  Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information, provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.  The obligations with respect to Confidential Information, as set forth in this Article, shall continue in force and effect for a period of five (5) years after termination of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
    7. Remedy.  Each party acknowledges that a breach of this Article may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article shall survive the termination of this Agreement.

9. Governing Law.

This Agreement is made and shall be governed and construed under the laws of the State of New York without giving effect to any conflict or choice of law provisions of that State, provided that nothing in this Agreement will be construed in any manner inconsistent with the Advisers Act, any rule or order of the SEC under the Advisers Act.

 

10. Force Majeure Event.

Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”).  In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue.  Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform its obligations for thirty (30) days due to such Force Majeure Event.  Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment.  The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event

 

11. Fisecal Payment Services.

There are certain features offered by Fisecal that enable you to receive payments via the Software (collectively “Payment Services”). If Advisor uses Payment Services, the terms in this subsection apply, in addition to the terms and conditions set forth in the Advisor License Agreement.

Advisor is solely responsible for all of their Payment Services activities, including managing subscriptions for Advisor’s Clients, all applicable taxes and fees, compliance with the Payment Card Industry Data Security Standard (PCI DSS), and compliance with any applicable laws (such as those relating to automatic renewal). Among other things, this means that:

  • Fisecal is not involved in Advisor’s relationships or transactions with any customer or potential customer
  • Advisor may only use Payment Services for legitimate transactions with their customers
  • Advisor must accurately communicate transaction details; set expectations appropriately; and fulfill all promises, representations, or warranties they’ve made
  • Advisor is responsible for the nature and quality of the products or services they provide, and for delivery, support, refunds, returns, providing any appropriate warnings and for any other ancillary services Advisor provides to their customers
  • Advisor is responsible for resolving all support questions, comments, and complaints
  • Advisors must maintain a fair return, refund, cancellation, or adjustment policy, and clearly explain how customers can request a refund
  • Advisor is responsible for acquiring appropriate consent to submit charges through Payment Services on customers’ behalf, giving receipts for each charge, verifying customers’ identities, and determining a customer’s eligibility and authority to complete transactions
  • Advisor agrees to provide consumer disclosures required by law, and to not engage in unfair, deceptive, or abusive acts or practices
  • Advisor is financially liable for disputes, refunds, reversals, or fines that arise from use of Payment Services
  • Advisor agrees to promptly notify Fisecal via email if Advisor receives any inquiry or action from a government or regulatory agency (such as the Federal Trade Commission or a state Attorney General) relating to their transactions.

Prohibited Uses. Advisor may not use Payment Services for any unlawful purposes; in furtherance of illegal activities; or in a manner that is unfair, deceptive, exposes Fisecal or customers to unreasonable risks, or does not disclose important terms of a transaction in advance. Payment Services cannot be used in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). Fisecal may terminate your access to Payment Services without notice to Advisor if Fisecal determines (in our sole discretion) that Advisor’s use violates the Agreement, or if a payment processor or regulatory authority requires it.

Taxes. Advisor is responsible for payment of all applicable taxes relating to payment activities and use of Payment Services. Advisor must collect, report, and/or pay the correct amounts to the appropriate authorities if applicable, and if needed, tell customers about any taxes they may be required to pay and issue appropriate invoices. Fisecal recommends consulting with a tax professional for Advisor’s specific tax situation.

Third-Party Services. As part of Payment Services, Fisecal may use certain third parties to fulfill our obligations to you, including integrating with payment processing third parties such as Stripe, Square, and PayPal. If Advisor uses Payment Services, some of Advisor and Advisor’s customers’ data may be submitted directly to or passed to the respective third party, and the respective third party’s terms of service, privacy policy, and other policies may apply. Additionally, Advisor may be subject to the terms and conditions of those third parties, and using Payment Services means you agree to comply with those terms and conditions. Please note that third party services may also charge you fees to use or access their services, as Stripe does for processing payments. Fisecal is not involved in these relationships, but may facilitate transactions or communication. Advisor cannot use Payment Services to enable any person (including yourself) to benefit from restricted businesses or activities.

Fisecal may refuse, condition, or suspend any transaction or account (including your use of Payment Services) if we believe you have violated this Agreement or that your activities or transactions expose you, us, or others to unacceptable risks, as determined by us in our sole discretion.

You authorize us to share data relating to Payment Services with the applicable payment processing third party for their use in accordance with their privacy policy. Please refer to our privacy policy for details on how we otherwise collect, use, and disclose data made available to us.

FISECAL PROVIDES THESE PAYMENT SERVICES ON AN “AS IS” BASIS, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, TERMS, REPRESENTATIONS AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDING ANY WARRANTIES, TERMS, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WHILE WE TAKE PRECAUTIONS TO PROTECT THE SECURITY OF YOUR INFORMATION, WE CANNOT GUARANTEE IT.

These terms and the operations or availability of the Payment Services may be changed by Fisecal, with or without notice, at its sole discretion.

 

12. Complimentary Document Templates.

There are certain document templates offered by Fisecal to help Advisor offset the costs of creating these documents (collectively “Complimentary Document Templates”). If Advisor uses Complimentary Document Templates, the terms in this subsection apply, in addition to the terms and conditions set forth in the Advisor License Agreement.

Advisor understands that Fisecal, LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “Fisecal”) do not endorse or recommend the use of any default values or any document provided by Fisecal, nor is Fisecal expressing any opinion or recommendation of what is, or what should be, a “market” standard document. Documents should be tailored to meet the specific legal and commercial requirements of the Advisor’s business, including, but not limited to, Advisory Services. Additional documents may be required for the Advisor’s business. Fisecal assumes no responsibility for the contents of the documents provided by Fisecal or any consequence of Advisor using any such documents. Advisor is responsible for ensuring that all necessary legally required filings, if any, are prepared and filed. Advisor should consult with an attorney licensed to practice in Advisor’s jurisdiction before using or relying on any documents provided by Fisecal, especially if Advisor doesn’t understand any of the document’s terms. Review carefully and use at your own risk. No document or information provided by Fisecal constitutes or should be relied upon as legal advice.

Advisor acknowledges and agrees that the making available of the Complimentary Document Templates to Advisor by Fisecal shall not create any attorney-client or other confidential or special relationship between Advisor and Fisecal and does not constitute the provision of legal advice or other professional advice by Fisecal. Advisor should seek advice from an attorney licensed in the relevant jurisdiction(s), as well as a tax professional, before relying on the Complimentary Document Templates.

Additionally, the information provided in the Complimentary Document Templates does not constitute tax advice. Any discussion of tax matters is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code (or equivalent in the relevant jurisdiction) or promoting, marketing or recommending to another party any transaction or matter.

Advisor further agrees and acknowledges that the Complimentary Document Templates have not been prepared with your specific circumstances in mind, may not be suitable for use in your business, and do not constitute tax advice. By relying on these Complimentary Document Templates, Advisor assumes all risk and liability that may result. Advisor should not use Complimentary Document Templates and Advisor should consult your tax, accounting and/or legal advisors in the event the business you are considering organizing has material existing assets, liabilities or operations.

Review all documents carefully for accuracy before using them. Depending on which document(s) Advisor chooses, there may be YELLOW HIGHLIGHTED portions and other BRACKETED TEXT requiring your attention.

FISECAL PROVIDES THESE COMPLIMENTARY DOCUMENT TEMPLATES ON AN “AS IS” BASIS, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, TERMS, REPRESENTATIONS AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDING ANY WARRANTIES, TERMS, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WHILE WE TAKE PRECAUTIONS TO PROTECT THE SECURITY OF YOUR INFORMATION, WE CANNOT GUARANTEE IT.

These terms and the operations or availability of the Complimentary Document Templates may be changed by Fisecal, with or without notice, at its sole discretion.

 

13. General.

Advisor must provide true, accurate, current and complete information in relation to the access to and/or use of the Services and dealings with Advisor’s Clients.

If any provision of this Agreement is or becomes inconsistent with any applicable law or rule, the provision will be deemed rescinded or modified to comply with such law or rule. In all other respects this Agreement will continue in full force and effect.

No term of this Agreement may be waived or changed except in writing signed by both parties. Failure to insist on strict compliance with this Agreement or with any of its terms or any continued conduct will not be considered a waiver by either party of such party’s respective rights under this Agreement.  Nothing in this Agreement shall be construed as a waiver of any rights Advisor may have under federal or state securities laws.  The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement.  The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.

This Agreement may not be assigned by any party without the consent of the other party hereto, in accordance with the provisions of the Investment Advisers Act of 1940 (the “Advisers Act”). Any other transfer or activity that is not deemed an assignment under the Advisers Act may occur without Advisor consent.

Any controversy or dispute that may arise between Advisor and Fisecal concerning any transaction or the construction, performance or breach of this Agreement shall be settled by binding arbitration. Arbitration shall be pursuant to the rules then applying of the American Arbitration Association, except to the extent set forth herein. The parties agree that any judgment upon the award rendered may be entered in any court, state or Federal, having jurisdiction. The parties are waiving their right to seek remedies in court, including the right to a jury trial, except to the extent such a waiver would violate applicable law.This provision does not constitute a waiver of any right provided under the Advisers Act. The recitals are hereby incorporated into and made a part of this Agreement.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action.

The parties to this Agreement are separate independent entities and nothing in this agreement shall be construed to form a joint-venture, employer/employee relationship or other similar relationship. Fisecal may use Advisor’s name in promoting Fisecal’s services as a part of Fisecal’s website, marketing material, social media or any and all media or distribution methods (now or later developed).

This Agreement, the Privacy Policy and the documents referenced herein constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.

Each party agrees that: (i) a signature, contract, or other record in electronic form will have the same legal effect, validity and enforceability as a signature, contract, or other record in written or non-electronic form; and (ii) a contract formed by an electronic signature will have the same legal effect, validity and enforceability as a contract formed by means of a written signature. For example, when an individual clicks on “I agree”, “I consent” or other similarly worded “button” or entry field with a mouse, keystroke or another computer device and causes evidence of such agreement or consent to be transmitted electronically to another party, such party will be deemed to have executed and delivered that agreement or consent.