Advisor Product

Bill Eneix

THIS AGREEMENT is made (Date)_________________________ by and between Advisor Products, Inc. (hereinafter referred to as “Advisor Products” or “API”) and ___________________________________________________________________ (hereinafter referred to as “Client”, and together with API, the “Parties”.) The Order Form, and Optional Enhancements on pages 1-5 of this Agreement (the "Order Form") and any appendices, addendums and/or amendments attached hereto are considered an integral part of this Agreement.

WHEREAS Client is in need of professional assistance with respect to the development of a website on the Internet; and

WHEREAS API is in the business of providing such professional assistance with respect to the development of websites for the financial planning industry;

NOW THEREFORE in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, it is hereby agreed by and between the Parties as follows:

FIRST: It is hereby agreed by and between the Parties that API will provide a website for Client. Client further agrees to provide all materials content and decisions required for producing Client’s website. Client understands that not providing API with materials content and decisions required for producing the Client website will not affect the date the annual License fee becomes payable as hereafter provided. API agrees that all materials and other information provided by Client to API in connection with the development of the website, other than the materials and information that become part of the public portion of the website, are to be kept confidential and will not be disclosed to third parties. API will follow the instructions of Client’s Designated Contact. Assigning any individual in Client’s firm as the Designated Contact to manage the design and development process other than the individual who will approve the final product is likely to result in misdirection of API staff and Client shall bear any resulting additional costs.

SECOND: Client agrees to pay API the one-time setup fee in the sum as identified alongside the selected Setup Package on the Order Form, plus the annual License fee for the License Package selected by Client as indicated on the Order Form.  The one-time setup fee shall be due immediately upon signing this Agreement. The initial License fee will be payable 30 days for Template sites or 120 days for Custom sites from the date of this Agreement, or immediately upon the website going live, whichever comes first. Client agrees that if no setup fee is being charged, the License fee will be payable upon signing of this Agreement. Designer Series or Custom Setup is conditional on a Platinum or higher License being in force during the two years immediately following the Commencement Date (as defined hereafter). Template Setup is conditional on one of the Licenses being in force during the two years immediately following the Commencement Date (as defined hereafter). It is agreed by and between the Parties that the period covered by the annual License fee is deemed to commence 30 days for Template and Designer sites and 120 days for Custom sites after the date of signing this Agreement, or immediately upon the website going live, whichever comes first (hereinafter referred to as the “Commencement Date”), extending for a period of one (1) year.  Client agrees that creating additional graphics requires additional fees, as does adding additional content services and logo development services pursuant to the Order Form. Client agrees to pay API the prevailing website maintenance hourly rate for any additional work requested by the Client that is not included in the website setup, including, but not limited to, adding or formatting of pages of content, training Client personnel, photo scanning and touchup or graphics creation. Client agrees and acknowledges that setup of clients and upload of client files and data into AdvisorVault is the responsibility of the Client.

THIRD:  API agrees that the annual License fee covers Client website maintenance and customer service hours as listed hereafter: FA Content Marketing Platform License includes four (4) hours per year.  Client acknowledgesthat the annual License fee does not cover any customized changes to the website when made by API at the request of Client. Furthermore, Client acknowledges and agrees that any customer service and technical service requests not covered under Client’s License will be billed at the prevailing rate (currently $150/hr) in 15-minute increments, with a 15-minute minimum charge per request, and that Client will be billed for technical support for website service at the prevailing rate unless the reported problem is deemed to be caused by a malfunction or mis-configuration in the computer systems that API owns and administers.  The prevailing rate is subject to change without notice. The definition of a customer service request includes, but is not limited to, requests for modifications to the Client website (graphics, content, programming), training and changes to DNS settings.  

FOURTH: The initial term of this Agreement is for two (2) years, commencing on the Commencement Date (“Initial Term”).  Thereafter, this Agreement and License shall renew automatically on the anniversary of the Commencement Date for successive one (1) year terms, at the price, terms and conditions in effect at that time; provided, however, that the annual License Fee shall not increase during the Initial Term of this Agreement.  Client or API may terminate this Agreement and the License only on or after expiration of the Initial Term and must do so by giving the other party no less than 30 days advance written notice of such intention.  API reserves the right, at its option, to deactivate the Client website if any amount due to API is not paid within 30 days of invoicing. Client understands that deactivation of the website does not remove the obligation to pay to API any sums properly due hereunder, whether or not invoiced. Further, deactivation of the Client website by API will not be a course of action against API for any damages, compensation, loss, costs or expenses howsoever arising.

FIFTH: Client acknowledges that a $500 cancellation fee shall apply on Designer or Custom site orders canceled within 21 days of signing this Agreement and a $1,500 cancellation fee shall apply thereafter in the event this Agreement is terminated at any time prior to the expiration of the Initial Term. For template site orders, a cancellation fee of $250 shall apply if terminated within the 21 days, and $500 thereafter. If the cancellation fee is not paid within 30 days of cancellation, then the full amount of license fees for the Initial Term shall become due.

SIXTH:Client acknowledges that neither API nor any principal or employee thereof is an attorney or compliance officer and that neither API nor any principal or employee thereof has or shall provide any legal, regulatory, compliance advice to Client whether professional or otherwise.  Client accepts responsibility for all legal, regulatory, and compliance-related issues arising out of the Client website and agrees to hold API and all of its principals and employees and any related entities harmless and free of liability from any economic damages or financial losses arising from any legal or compliance-related issue(s).

SEVENTH:  The Parties agree to exercise reasonable due care to be certain that any content provided by the other party will not be used in a manner deemed to be unauthorized by the other party. Content produced by a Party may not be reproduced without the express written consent of that Party. Without limiting the generality of the foregoing, unauthorized use will be deemed to include any infringement of copyright as well as any unlawful use of intellectual property rights.

EIGHTH:  Client acknowledges and agrees that: API services and API software are provided on an “as is” basis, and Client’s use of the API services and API software are at Client’s own risk; API does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non infringement and title; API does not warrant that the services or software will be uninterrupted, error-free, or completely secure;  Website, email and other application services including, but not limited to, account aggregation, portfolio  reporting and financial planning are dependent on third-party Internet services providers (ISP’s) and application service providers (ASP’s), API disclaims any and all liability for interruption or malfunction of services due to system failures or malfunctions in third-party provider’s systems.  Client agrees to hold harmless and free of any liability API and all its principals, employees and related entities from any economic damages or financial loss arising as a direct or indirect result of the Client website and other API services provided under this Agreement except where there has been intentional malfeasance or negligence on the part of API.  In no case shall API’s liability for any or all damages arising from this Agreement exceed one quarter of the current year’s total annual License fee collected from Client.

NINTH: If the event Client licenses the API proprietary Email Newsletter Services (hereinafter referred to as “ENS”), Client agrees to pay API a one-time setup fee upon signing this Agreement, plus the ENS annual maintenance fee as advised. Client agrees that the setup fee covers the one-time setup by API of up to 2,500 email addresses, and that Client can add additional email addresses using the API Back Office up to a maximum of 2,500 addresses. Client agrees that the ENS annual maintenance fee is for a term of one year commencing with the beginning of the annual License fee. Renewal after the Initial Term shall be at the price, terms and conditions then in effect at the time of renewal. API covenants with the Client to never purposefully use or disclose the contents of the Client’s email list. Client agrees not to use the ENS list server in a manner that would be considered “spamming.” The definition of “spamming” includes sending email to individuals who have not expressed an interest in the services of Client, sending emails advertising products or services unrelated to Client’s financial services business, or sending an excessive number of emails to the list’s subscribers. API reserves the right to suspend ENS in the event Client uses ENS for spamming.

TENTH: Failure of either Party to object to or take other action with respect to any conduct of the other Party that may be in breach of this Agreement shall not be deemed a waiver of any breach or any future breach or wrongful conduct.

ELEVENTH: If any provision of this Agreement or its application to any person or circumstances is found to be invalid or unenforceable, the remainder of this Agreement or the application of that provision to other persons or circumstances shall not be affected and shall remain in full force and effect.

TWELFTH: The validity, interpretation and performance of this Agreement shall be governed by and construed under the laws of the State of New York and shall be deemed by the Parties to be a New York contract. The sites of any litigation, which may develop or transpire under the terms and provisions of this Agreement, shall be within the State of New York.

LASTLY: This Agreement contains the entire understanding of the Parties. Any oral understandings are incorporated and merged in this Agreement. No representations were made or relied upon by either Party except as set forth. This Agreement may not be changed unless both Advisor Products and Client agree to the change in writing.