This document discloses the terms and conditions by which users of www.financialmarketingpros.com (the “site” or “website”) are granted use of the website, which is owned by Financial Marketing Pros, a California corporation (the “Company” or “FMP”), as well as the terms and conditions that apply to the purchase of Company’s products and services. These terms and conditions are divided into the following sections:
(1) A disclaimer of liability;
(2) Terms and conditions governing the use of this website and the Company’s services;
(3) A license to use FMP’s materials;
(4) Payment terms; and
(5) General provisions.
(1) Provision of Information
Much of the information on this website consists of summaries of complex issues, schemes, or facts. Details and nuances are inevitably omitted from such summaries. For this reason, you must not rely upon any information on this website, and we recommend that you obtain professional advice before embarking upon any course of action or inaction that may have business, financial, or legal implications.
Neither FMP nor any employee or associate of FMP (including without limitation Joe Bayliss), is licensed to provide any regulatory advice, nor is FMP nor any employee or associate of FMP (including without limitation Joe Bayliss), a licensed insurance agent or financial advisor. FMP does not represent or warrant that any material, advice, or information provided by FMP or its agents complies with any state or Federal regulations, or that persons using such material will be in compliance with any federal, state, or local rules, laws, statutes, or regulations. Client agrees to; contact its own compliance advisor and legal counsel respecting such matters, hold FMP harmless, waive any claim against FMP, and indemnify FMP for damage or alleged damage arising out of any failure to comply with any federal, state, or local rules, laws, statutes, or regulations.
(2) Exclusion of warranties, representations and guarantees
We do not warrant, represent or guarantee:
- the accuracy or completeness of the information provided by FMP;
- that the information provided is up-to-date; or
- that the information provided by FMP can be applied to achieve any particular result.
To the maximum extent permitted by applicable law we exclude all representations, warranties and guarantees relating to this website, the use of this website, or the use of FMP's products and services (including, without limitation, any warranties implied by law of satisfactory quality, fitness for purpose and/or the use of reasonable care and skill).
(3) Limitations and exclusions of liability
To the extent that the website and the information and services on the website are provided free-of-charge, we are not liable for any loss or damage whatsoever. Further, we are not liable to you in respect of any losses arising out of any event or events beyond our reasonable control, nor are we liable to you in respect for any business losses, including but not limited to, damage to profits, income, revenue, reputation, goodwill, or anticipated savings, or any special, indirect or consequential loss or damage. You agree that electronic and internet communications are particularly susceptible to loss, theft, or corruption of data, databases, and software, and you agree that we are not liable to you in respect of any losses arising out of the same, or any acts or omissions of any hosting provider, payment services provider, or other third party services provider. Notwithstanding the above, nothing herein will limit or exclude any of our or your liabilities in any way that is not permitted under applicable law.
(4) Third party content
You acknowledge that some of the information published on this website may be submitted or provided by users or other third parties, and you agree that we are not responsible for reviewing, approving, or editing such information. If commenting is allowed on the Company website, you agree to the publication of comments, reviews, and/or feedback relating to you, by others, on our website. You acknowledge that such comments, reviews, and/or feedback may be critical or defamatory or otherwise unlawful; and you agree that you will not hold us liable in respect of any such comments, reviews, and/or feedback, irrespective of whether we are aware or ought to be aware of such comments, reviews, and/or feedback.
(5) Website availability
From time to time, the website or features of the website may be unavailable. The website is not guaranteed to be available at any particular time, nor guaranteed to be published at any time in the future.
Terms and Conditions of Use
(1) License to use website
Unless otherwise stated, we own the intellectual property rights in the website and material on the website. Subject to the license below, all of these intellectual property rights are reserved to the Company.
You may view, download, and print pages from the website for your own personal use, subject to the restrictions set out below and elsewhere in these Terms & Conditions. You shall not: (a) republish material from this website; (b) sell, rent, or sub-license material from the website; (c) reproduce, duplicate, copy or otherwise exploit material on our website for a commercial purpose; (d) edit or otherwise modify any material on the website; or (e) redistribute material from this website, except for content expressly available for redistribution.
(2) Unacceptable uses
You shall not use our website in any of the following ways:
- In any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website;
- In any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
- To copy, store, host, transmit, send, use, publish or distribute any material which consists of or is linked to any spyware, computer virus, or other malicious computer software;
- To conduct any systematic or automated data collection activities on or in relation to our website without our express written consent;
- To transmit or send unsolicited commercial communication; or
- For any purposes related to marketing without our express written consent.
(3) Restricted access
Access to certain areas of our website may be restricted. We reserve the right to restrict access to other areas of our website, or our whole website, at our discretion. If we provide you with or you generate a password to enable you to access restricted areas of our website or other content or services, you agree that the password shall be kept confidential. You must notify us in writing immediately if you become aware of any unauthorized use of your account or password. You agree that you are responsible for any activity on our website arising out of any failure to keep your password confidential, and may be held liable for any losses arising out of such a failure. You shall not use any other person's user ID and password to access our website.
(4) User content
You grant to us a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate, and distribute your content in any existing or future media. “Your content” means material, including, without limitation, text, images, audio material, video material and audio-visual material, that you submit to our website, for whatever purpose. You also grant to us the right to sub-license these rights, and the right to bring an action for infringement of these rights. You warrant and represent that your content will comply with these Terms & Conditions. Your content must not be illegal or unlawful, must not infringe any third party's legal rights, and must not be capable of giving rise to legal action whether against you or us or a third party (in each case under any applicable law). We reserve the right to edit or remove any material submitted to our website, stored on our servers, or hosted or published upon our website.
(5) Third party websites
Our website includes hyperlinks to other websites owned and operated by third parties. These links are not recommendations. We have no control over the contents of third party websites, and we accept no responsibility for them or for any loss or damage that may arise from your use of them.
License To Use Our Materials
(1) Intellectual property rights
We own the intellectual property rights in the materials that may be available through our website or are provided through our paid products and services. Subject to the license below, all our intellectual property rights in the materials are reserved.
(2) License to use all materials
You may view, download, print, copy, adapt, and amend the free materials, subject to the restrictions below:
- You shall include a credit to the Company on all materials and derivatives thereof in the form specified on the relevant materials. You shall not delete, obscure, or remove any copyright notices or other proprietary notices placed by us on any materials or derivative.
- You have no rights to sell or distribute the materials or derivatives thereof or to license to others any rights in the materials or derivatives.
- You acknowledge that we do not provide any business, financial, or legal advice to you regarding the materials, and consequently, you acknowledge that it would be unreasonable to hold us liable in any respect for your use of the materials.
- If you breach any of these terms and conditions, then your license(s) under may be immediately terminated by us upon written notice to you. Upon the termination of a license, you shall promptly and irrevocably delete from your computer systems and other electronic devices all copies of the materials and derivative(s) in your possession or control, you shall permanently destroy any paper or other copies of the materials and derivative(s) in your possession or control, and you shall cease and desist from using the materials and derivative(s) in any manner.
(3) License to use materials for sale
You may publish our purchased materials, subject to the restrictions above and below:
- Upon your purchase of FMP’s services or materials, FMP may prepare marketing strategies and other materials for your use. These materials may take the form of text, graphics, audio (speech or music), or other works of authorship. You will keep all such materials confidential and not disclose them to anyone else, including but not limited to, other financial advisors, insurance agents, advertising agencies, field or marketing organizations, or competitors of FMP. Copyright in all such materials belongs to FMP. You are exclusively licensed to copy and publicly perform such materials on your radio advertisements and radio shows only during the term of this Agreement. If you terminate the Agreement, you understand and agree you shall immediately cease and desist from using, publishing, distributing, or displaying any FMP-provided content.
- FMP may obtain licenses for you to use materials belonging to third parties. You will comply with any applicable terms of such licenses if you use such third-party materials.
- You understand and agree that all intellectual property rights (including without limitation patent, copyright, and trademark rights) in any materials provided to you by FMP belong exclusively to FMP. FMP may revoke your license to use any and all FMP-created material, including but not limited to, content, scripts, and intellectual property, at any time with written notice to you, which shall be effective immediately. In the event of revocation by FMP, you agree to cease and desist from further use, display, or distribution of licensed materials and shall immediately remove them from all public domain.
- The license granted to you by FMP to use FMP’s content and intellectual property is revocable at any time by FMP. If FMP revokes your license without cause, then no future amounts will be due FMP, except as to any unpaid amounts due as of the termination/revocation date. If FMP revokes your license for cause (i.e. for any breach of this Agreement), then you shall immediately pay all amounts due to FMP within ten (10) business days.
- You understand and agree that any license granted to you by FMP is non-exclusive because FMP is a non-exclusive independent contractor and provides advertising services and products for other clients, which, in some cases, may be the same or substantially similar as the services provided to you.
- You understand and agree that you may only use FMP’s content and intellectual property if FMP has been paid in full. You agree to immediately remove all podcasts, commercials, and recordings of FMP-prepared content, scripts, or intellectual property from your website if you fail to make any payment to FMP, or if you or FMP terminates this Agreement. You may not re-purpose FMP-provided scripts, content, or intellectual property by using it in any way or medium other than intended unless you obtain FMP’s express written consent. You agree to pay FMP 50% commission on any unauthorized use of FMP-provided scripts, content, or intellectual property.
- You understand and agree that FMP’s subscriptions, products, and/or services serve independent financial advisors and are not intended to be sold to marketing organizations, including but not limited to, field marketing organizations or independent marketing organizations. By purchasing FMP’s subscriptions, products, and/or services, you agree and warrant that you are not a marketing organization. Aside from, and in addition to, any other damages and remedies allowable by law or by these Terms & Conditions, any marketing organization that purchases any of FMP’s subscriptions, products, and/or services shall immediately pay FMP fifty thousand dollars ($50,000) and immediately destroy all FMP created materials or derivatives of such materials in the marketing organization’s control or possession. This fifty thousand dollar ($50,000) payment represents the reasonable value of FMP’s ideas contained in FMP’s subscriptions, products, and/or services to a marketing organization.
The Company name and logo(s) are trademarks belonging to FMP. You agree that you have no permission to use our trademarks in any manner, and such use shall constitute an infringement of our rights.
(5) Liquidated Damages
You understand and agree that damages related to intellectual property are difficult to ascertain. As such and as liquidated damages, you understand and agree that if you use any FMP script, content, or intellectual property that is not expressly permitted by these Terms & Conditions, you shall, within thirty (30) days of written notice by FMP, pay FMP the sum of twenty-five thousand dollars ($25,000), multiplied by the number of improper uses, broadcasts, distributions, or infringements, which you agree is a reasonable sum considering FMP's unique skills in the field of radio advertising and the extraordinary profits and benefits that FMP's clients can obtain by using FMP's services.
If you purchase a FMP product or service from us, you agree to the following payment terms:
(1) Product Subcriptions
You agree to the product subscription pricing models as follows for the product you are purchasing:
- The Lead Letter
- Month to month open ended subscription, charged monthly until customer cancels
- No annual commitment
- 7-Step Show Coaching
- Annual subscription paid monthly
- Annual commitment (12 months from the date of sign up)
- Killer Show Content
- Annual subscription paid monthly
- Annual commitment (12 calendar months)
(2) Unique Services
You recognize that FMP is leveraging its unique media relationships and proprietary expertise for your benefit. Much of this benefit will be concentrated in the initial creation of Client’s marketing platform and/or campaign. Because significant amounts of time, expense, creativity, campaign creation, disclosure, and expertise will be exhausted by FMP during the initial phase of the relationship, if you terminate the contract prior to the end of the contract term, you agree to immediately compensate FMP for all monthly fees for the remainder of the contract term.
(3) Reimbursement for Special Requests
If you request purchases of any media or talent by FMP, you agree to reimburse FMP for all expenses incurred by FMP on a monthly basis. You may cancel any such authorization, whereupon FMP will take all appropriate steps to effect such cancellation; and you agree to reimburse FMP for any costs incurred as a result.
(4) Payment Terms
You agree to pay the monthly subscription cost of any product or service that you purchase from FMP. Payment is due in full in advance of each month, unless otherwise stated on your invoice. If FMP does not receive payment in full within thirty (30) days of the date specified on Client’s invoice (the “Due Date”), Client agrees to pay late payment terms outlined herein.
(5) Late Payment Terms
If you fail to pay FMP for any amount due within thirty (30) days of the Due Date, you agree to pay FMP, in addition to all other amounts due and equitable relief that may be available, a late payment fee of one hundred dollars ($100) and interest shall be charged on the overdue balance, including the late payment fee, at a rate of 1.5% per month. In addition, you agree that;
- FMP may, without notice, suspend or terminate its services to you if you fail to pay any outstanding balance owed to FMP within thirty (30) days of the Due Date.
- FMP may charge you, and you agree to pay, any costs FMP pays to a collection agency or law firm to collect your unpaid balance.
- FMP may charge you, and you agree to pay, one hundred dollars ($100) per occurrence, plus all related costs or fees incurred by FMP, for any returned checks or other payments paid by you and denied for any reason by a financial institution.
- You agree that acceptance of payments by FMP (even if marked “paid in full”) does not waive FMP’s right to collect all outstanding amounts that you owe FMP.
- FMP may restrict your payment methods to cashier’s check, money order, or other similar secure form of payment at any time after a payment is late or after receipt of a returned check.
General and interpretative provisions
You agree to indemnify, defend, and hold the Company harmless against any losses, damages, costs, liabilities, and expenses, including, without limitation, legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute, incurred or suffered by us arising out of any breach by you of any provision of these terms and conditions, or arising out of any claim that you have breached any provision of these terms and conditions.
Further, you expressly agree to indemnify and hold FMP (and Joe Bayliss personally) harmless from any claims or actions: for contract or tort damages, wrongful death, or personal injury claims arising from the use of your products or services; based upon materials furnished by you or material created by FMP (you agrees that any materials you provides to FMP to substantiate claims made in advertising will be deemed to have been furnished by you); or arising from any failure to comply with any federal, state, or local rules, laws, statutes, or regulations.
We may disable your account on our website, or your access to our website, at any time in our sole discretion, for any reason or no reason, and without notice or explanation. In addition, without prejudice to our other rights, if you breach or we suspect you breached these Terms & Conditions, we may: (i) send you a formal warning; (ii) suspend, permanently prohibit, or delete your access or account; (iii) block your computer or location from access; (iv) delete and/or edit any or all of your content, and/or (v) bring court proceedings against you for breach of contract or otherwise.
Any notices under these Terms & Conditions must be in writing with confirmed delivery. This may be done by email, or by courier with confirmation of delivery.
You hereby agree that we may transfer, sub-contract, or otherwise deal with any or all of our rights and/or obligations under these Terms & Conditions. You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these Terms & Conditions without obtaining our prior written consent.
If a provision of these Terms & Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
(7) Jurisdiction; Governing Law; Attorneys’ Fees
(a) These Terms & Conditions will be interpreted in accordance with the laws of the State of California without regard to principles of conflicts of laws.
(b) Client and FMP agree that jurisdiction and venue will lie solely within either the Superior Court of Nevada County, California, Town of Truckee for breach of contract and liquidated damages cases, or the Federal Court in Sacramento if FMP alleges copyright or trademark infringement.
(c) If either party brings any legal proceeding against the other respecting these Terms & Conditions, the prevailing party will be entitled to its reasonable costs and attorney fees in addition to any other recovery available, including, but not limited to equitable remedies.
Any waiver by FMP of any breach of any provision of these Terms & Conditions must be in writing and will not be construed as a waiver of any succeeding breach of the same or of any other provision of the Agreement.