PLATINUM ADVISOR STRATEGIES, LLC and PLATINUM STRATEGIES, LLC MEMBER AGREEMENT (Hereafter “PLATINUM”)
Thank you for purchasing a subscription (a “Subscription”) to the PlatinumStrategies.com website (the “Website”). This Subscription is for each Member’s benefit and use as a Financial Products and Services Sales Representative. Please read this agreement carefully before using any products or services identified below. This Member Agreement (this “Agreement”) governs each Member’s use of the Website and the Application. By clicking the “I Agree” button below, or by accessing or using the Website or Application or any part thereof, each Member has acknowledged that he or she has read and understands this Agreement and agrees to be bound by its terms as fully as if the Member had physically signed this agreement with his or her signature. Additionally, the Member’s continued use of the Website and Application will indicate ongoing consent to be bound by the terms and conditions set forth below. This Agreement is a binding legal agreement between the Member (either an individual or legal entity) and PLATINUM. If any Member does not agree to all of the terms and conditions contained in this Agreement, please do not click the “I Agree” button below or access or use the Website, Application, or any part thereof.
The following definitions shall apply to the specified terms throughout this Agreement as well as within the Website and Application:
- “Website and Application”—Any and all aspects of the web-based application hosted at http://www.platinumstrategies.com or any other domain owned by PLATINUM Advisor Marketing Strategies, LLC, its officers, or subsidiaries. This includes but is not limited to the format, appearance, text, or content in any form and type.
- “Marketing Materials”—This term shall mean and refer to any and all marketing and business management materials for financial products and/or services obtained through the Website and Application. Said materials include, but are not limited to, postcards, e-mails, letters, flyers, invitations, presentations, brochures, facsimiles, newsletters, articles, seminars, surveys, website content, stationary, and any other items acquired from the Website.
- “Registered Representatives”—This term shall mean and refer to any sales representatives affiliated with the Broker/Dealer who have been individually authorized to access and use the Website and Application through the purchase of an individual user subscription for the Website and Application and have entered into the standard “PLATINUM’s User Agreement.”
TERMS AND CONDITIONS
- THE WEBSITE AND APPLICATION. Through use of the Website and Application, the Member may obtain Products for use in the Member’s capacity as a Financial Products and Services Sales Representative.
- RESTRICTIONS ON USE. The entire Website and Application; all Marketing Materials, including but not limited to, all pages within the Website; and any material made available for download, including but not limited to all Messages not submitted under the Exclusive Option, are the property of PLATINUM, its affiliates, and/or a Third-Party Provider. The Website and Application and all Marketing Materials and all aspects thereof are protected by federal and international copyright and trademark laws and are legally protectable as property of PLATINUM or one of its third-party contractors. You agree that all such content and all Marketing Materials, whether or not legally protected by copyright law, are protectable by this agreement and no portion of the materials comprising the Application or any Messages may be reprinted, republished, modified, or distributed in any form without the express written permission of PLATINUM and/or the applicable Third-Party Provider. The Website and Application and all Messages available through the Website and Application are for the Member’s own personal use or the internal use of the Member’s business as an individual sales representative. The Member shall keep intact any proprietary notices, including copyright notices, contained on any downloaded materials and shall comply with any applicable end-user license agreements. The Member hereby acknowledges that he or she or it is a limited-purpose licensee of the content and Marketing Materials on this Website and has agreed to abide by all terms and conditions restricting Member’s license.
- LIMITED COVENANT AND REVOCATION OF LICENSE. Member hereby acknowledges that Fross and Fross Financial, LLC is an affiliate of PLATINUM and that Fross and Fross Financial, LLC makes regular use of the strategies, forms, content, and Marketing Materials of PLATINUM, at its offices located at 10973 SE 175th Place, Suite 103, Summerfield, FL 34491, and as such Fross and Fross Financial, LLC and PLATINUM would be irreparably injured if Member were to use any of the strategies, forms, content, and Marketing Materials from this Website in competition against them within their geographical trade area. Accordingly, Member agrees that PLATINUM and Fross and Fross Financial, LLC have an enforceable business interest in precluding competition by Member or Member’s affiliates using the same or similar Marketing Materials in competition with them. Member therefore agrees that Member shall not compete with PLATINUM or Fross and Fross Financial, LLC in the business of offering marketing strategies, ideas, forms, or advice to registered representatives within a fifty-mile radius of the aforesaid office of Fross and Fross Financial, LLC by using or selling or providing or reproducing any of the content from this Website or any of the Marketing Materials on this Website or by providing the same to registered representative customers within said fifty-mile radius or by maintaining an office for such purpose within said fifty-mile radius. Member further agrees that this limited covenant is reasonably necessary to protect the legitimate business interests of PLATINUM, as licensor of the content and Marketing Materials provided in this Website, and that an injunction to enforce the terms hereof is reasonably necessary for protection of said legitimate business interest. The restriction set forth in this paragraph shall apply for a period of two years after Member’s last downloading of content from this Website and shall only restrict competition within the aforesaid fifty-mile radius and for the limited purposes set forth above. The intent of this paragraph is not to restrict competition as such but to restrict unfair competition by a Member licensee using PLATINUM Advisor’s own content and Marketing Materials against it within a fifty-mile radius of its office and that of its affiliate, Fross and Fross Financial, LLC, and Member agrees that this is a reasonable, legitimate, and enforceable business interest that a court may protect by injunction.
4.1. Term. The Website and Application are available only through the purchase of a Subscription. The Member’s Subscription shall commence immediately upon the date PLATINUM accepts the Member’s order to purchase that Subscription,
which may precede the date on which the Member begins using the Website or Application. The initial term of the Member’s Subscription (the “Initial Term”) shall be one (1) year in length. The exception to this is for website development and hosting services, which may be cancelled anytime with thirty days’ written notice.
4.2. Automatic Renewal. Upon completion of the Initial Term, the Member’s Subscription will renew automatically on a month-to-month basis (each, a “Renewal Month”) unless the Member provides PLATINUM with notice of termination at least thirty (30) days prior to the end of the Initial Term. Any such notice must be provided to PLATINUM by speaking with a PLATINUM representative or providing notice in writing. If the Member provides PLATINUM with the appropriate termination notice prior to the end of the Initial Term, the Member’s Subscription shall continue only until the end of the Initial Term, and the Member shall be liable only for those fees, taxes, and other charges incurred in connection with the Member’s Subscription (collectively, “Subscription Fees”) that accrue prior to such date. After the Initial Term, the Member may terminate the Member’s Subscription as of the end of any Renewal Month by speaking with a PLATINUM representative.
Furthermore, in the event that any Member Data changes during the course of the Member’s Subscription, the Member shall provide updated Member Data as soon as possible.
4.4. Subscription Fees. The Member agrees to pay all Subscription Fees. PLATINUM Advisor Marketing Strategies, LLC shall, in its sole and absolute discretion, determine Subscription Fees. PLATINUM may establish or change Subscription Fees for Renewal Months by posting such fees on either of the websites located at www.platinumstrategies.com (or on a sub-page of the Website), by posting a conspicuous notice in the Website or Application, by e-mailing the Member, or by otherwise notifying in writing in advance of the applicable Renewal Month. All Subscription Fees will be billed to the credit card that the Member designates during registration (or such other credit card as the Member may designate from time to time). All monthly, annual, or other periodic Subscription Fees will be billed automatically to the Member’s credit card at the start of each such period during the Initial Term. For Renewal Months, the monthly Subscription Fees will be billed to the Member’s credit card each month on the date that corresponds with the anniversary date of the Member’s Subscription.
4.5. Past-Due Subscriptions. All Subscription Fees shall become nonrefundable thirty (30) days following registration. At PLATINUM’s discretion, past-due Subscription Fees are subject to interest at the rate of 1.5% per month, or the maximum permitted by law, whichever is less. The Member shall be responsible for all expenses (including, without limitation, reasonable attorneys’ fees) incurred by PLATINUM in connection with the collection of any past-due Subscription Fees.
4.6. Default and Acceleration of Subscription Fees. During the Initial Term of the Member’s Subscription, Member’s failure to make one (1) monthly, quarterly, or other periodic payment of Subscription Fees shall result in the default of the Member’s Subscription. The Member shall have ninety (90) days from the due date of the missed payment of Subscription Fees to cure this default. The Member’s payment of any outstanding Subscription Fees, including all late fees, within the timeframe described above, shall cure the default of the Member’s Subscription. In the event the Member fails to cure the default of the Member’s Subscription within the timeframe specified above, then and in that event, PLATINUM may, in its sole and absolute discretion, accelerate the Subscription Fees remaining due and payable on the initial term of the Member’s Subscription and declare the entire accelerated sum, including all late fees, to be immediately due and payable. Upon Member’s receipt of PLATINUM‘s electronic or written notice of its election to accelerate the Member’s Subscription Fees, the Member agrees to immediately tender payment unto PLATINUM of the Subscription Fees accelerated, including all late fees thereon.
4.7. Refunds. All custom branding and design services provided by PLATINUM Advisor Marketing Strategies, LLC are eligible for a refund within ninety (90) days of purchase and prior to your approval of your digital proofs. All sales of custom branding and design services are final upon receipt of your approval of digital proofs. No refunds will be provided after ninety (90) days from the date of purchase. The only circumstance under which PLATINUM may provide a refund after ninety (90) days from the date of purchase and/or after your digital proofs have been approved is in the event that PLATINUM has made a material mistake, rendering your custom order unsuitable for its intended purpose. In the event that PLATINUM makes a mistake, we will compensate you by providing a replacement order or refunding your money; it is in PLATINUM’s sole discretion which form of compensation will be provided.
- USER NAMES AND PASSWORDS. The Member will be required to choose (or, at PLATINUM‘s discretion, the Member will be assigned) a user name and password for the Website and Application.
5.1. Personal Use and Confidentiality. The Member’s user name and password are for the Member’s exclusive use. The Member is solely responsible for maintaining the confidentiality of the Member’s user name and password and for all activities that occur under the Member’s user name and password. The Member may not disclose the Member’s user name and password to anyone other than an authorized employee of PLATINUM, including, without limitation, any other representatives or employees of the Broker/Dealer the Member represents. The Member must notify PLATINUM immediately if the Member becomes aware of any unauthorized use of the Member’s user name or password, or if the Member becomes aware of any other breach of security regarding the Website or Application. PLATINUM will not be liable for any loss or damage that the Member may incur as a result of someone else using the Member’s user name or password, either with or without the Member’s knowledge.
5.2. Record of Use. The Member’s user name and password may be used to catalog and track the Member’s marketing activities by the Member’s Broker/Dealer. By entering into this Agreement, the Member hereby authorizes the Member’s Broker/Dealer to have access to any and all records of the Member’s usage of the Member’s account, and the Member authorizes PLATINUM Advisor
Marketing Strategies, LLC to provide such access.
- INTERNET ACCESS; SYSTEM REQUIREMENTS. Use of the Website and Application, or certain parts thereof, requires access to the Internet. Additionally, use of the Website and Application may require particular equipment, software, and/or telecommunications services, and PLATINUM may change those requirements from time to time in its sole discretion and without prior notice. The Member is solely responsible for obtaining, configuring, maintaining, and paying for all equipment, software, and telecommunications services necessary for the Member to access the Internet and use the Website and Application.
- APPLICATION LICENSE.
7.1. License Grant. During the term of this Agreement, and subject to all other terms and conditions herein, PLATINUM hereby grants the Member a personal, limited, revocable, nonexclusive, non-sub licensable, nontransferable license to do the following, but only for the Member’s own internal business purposes and only in a manner consistent with all applicable end-user documentation: (a) use on the Member’s personal computer(s) any and all software components of the Application that PLATINUM makes available to the Member for downloading through the Website, (b) install and use on the Member’s personal computer(s) any and all software components of the Application that PLATINUM provides to the Member on physical media, and (c) access and use of all components of the Application that PLATINUM makes available to the Member directly through the Website.
7.2. Limitations. Except as expressly permitted above in this Section 7 the Member may not use or reproduce the Application or the Website, including but not limited to any of the materials and Messages available via the Website and/or Application. To the maximum extent permitted by applicable law, the Member may not: (a) sell, sublicense, rent, lend, lease, timeshare, commercialize, or transfer the Website or Application, or otherwise make the Website or Application available, to any third party; (b) use the Website or Application for the benefit of any third party; (c) modify, translate, or create derivative works of the Website or Application; (d) reverse assemble, reverse compile, or reverse engineer the Website or Application; (e) alter or modify any disabling mechanism that may be active in the Website or Application; (f) remove, alter, or obscure any copyright notice or other proprietary notice or legend that is on or in the Website or Application; or (g) access or use the Website or Application for fraudulent purposes, in violation of any applicable laws, or in violation of this Agreement (as it may be modified from time to time). If a license to use the Website or Application was purchased in the United States, the Member agrees to comply with all applicable United States laws and regulations pertaining to export controls. If a license to use the Website or Application was purchased outside the United States, the Member may not re-export the Website or Application except with the express written permission of PLATINUM Advisor Marketing Strategies, LLC and as permitted by the laws of the United States and the laws of the jurisdiction in which the Member purchased a license to use the Website or Application. Any reproduction, modification, or redistribution of the Website or Application is expressly prohibited and may result in severe civil and criminal penalties. The Website and Application and their structure, sequence, organization, and source code are considered trade secrets of PLATINUM Advisor Marketing Strategies, LLC and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE WEBSITE OR APPLICATION TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER, OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
- LIQUIDATED DAMAGES. As noted above, the Member’s limited license to use the Website and Application is nontransferable. The Member and PLATINUM Advisor Marketing Strategies, LLC agree that, in the event that the Member discloses the Member’s user name and password to another person or persons and/or permits another person or persons to use the Application in violation of the terms of this Agreement, it will be impracticable or extremely difficult to determine the damages suffered by PLATINUM. It is therefore agreed that in the event of such unauthorized disclosure or use by the Member or by others facilitated by the Member, the Member shall pay to PLATINUM the sum of twenty-five thousand dollars ($25,000) as liquidated damages.
- OWNERSHIP OF THE WEBSITE, APPLICATION, AND MESSAGES. The Application is being licensed to the Member, not sold. Except for the limited license granted in Section 7 above, PLATINUM and its licensors own and retain all right, title, and interest in and to the Website and Application; all copies of the Application; all data, compilations, and information underlying or relating to the Application (other than any content, as defined below); and all intellectual, industrial, and proprietary rights in or relating to any of the foregoing (including, without limitation, all copyrights, patents, trademarks, and trade secrets). Furthermore, PLATINUM or Third-Party Providers, as the case may be, retain all right, title, and interest in all Messages, except those Messages submitted by individual Registered Representatives under the Exclusive Option.
9.1. Website History Retention. Broker/Dealer may designate how long his or her or its Registered Representative’s “Website History” (defined as the records of each Registered Representative’s downloading or uploading of Messages from or to the Website) shall be maintained by PLATINUM. Website History shall be maintained for a minimum of one (1) year, measured from the date of a given downloading or uploading event. However, Broker/Dealer may request a lengthier retention period as specified in the operative Broker/Dealer Agreement. PLATINUM shall have no further obligation to retain Website History after termination of this Agreement. Accordingly, upon request, PLATINUM shall provide the Member with a copy of the Member’s Website History recorded prior to the termination of this Agreement. A copy of the Member’s Website History recorded prior to the termination of this Agreement shall be requested concurrently with the termination of this Agreement.
- TECHNICAL SUPPORT. PLATINUM will, to the extent commercially reasonable, attempt to assist the Member with accessing and using the Application (“Technical Support”). PLATINUM will, at the Member’s option, provide the Member with Technical Support via telephone, facsimile, and/or e-mail. Technical Support staff is available between the hours of 9:00 a.m. and 5:00 p.m., Eastern Standard Time, Monday through Friday. However, Technical Support response times may vary depending upon the nature of the support requested and the quantity of other support requests. PLATINUM may modify its Technical Support policies and procedures (including, without limitation, availability dates and times and communication methods) from time to time in its sole discretion and without notice. For further information regarding Technical Support, please visit PLATINUM’s website at www.platinumstrategies.com.
- MAINTENANCE. PLATINUM shall use commercially reasonable efforts to promptly repair faults or defects in the Application that materially degrade its functionality or performance or that cause it to be inaccessible to users. PLATINUM may, in its sole discretion, also perform other maintenance on the Application from time to time as it deems necessary. The Member shall not be entitled to any abatement in Subscription Fees for any Application faults, defects, inaccessibility, or downtime with the Website or Application.
- MODIFICATIONS. PLATINUM may upgrade, enhance, change, suspend, discontinue, or otherwise modify any aspects or components of the Application (collectively, “Modifications”) at any time in its sole and absolute discretion and without notice. Any Modifications made available to the Member will be subject to the terms of this Agreement. The Member shall not be entitled to any abatement in Subscription Fees for any Modifications.
- SUSPENSION, TERMINATION. If PLATINUM believes, in its sole discretion, that the Member has violated any term or condition in this Agreement, PLATINUM may suspend the Member’s access to and use of the Application until such time as PLATINUM believes, in its sole discretion, that the Member has cured such violation or that such violation did not occur. Any such suspension shall not entitle the Member to any abatement in Subscription Fees. If the Member breaches or otherwise fails to comply with any of the terms or conditions in this Agreement, PLATINUM Advisor Marketing Strategies, LLC may terminate the Member’s Subscription immediately and without notice, and the Member shall not be entitled to a refund of any prepaid Subscription Fees. PLATINUM may also terminate the Member’s Subscription for any reason or no reason whatsoever upon thirty (30) days’ prior notice via e-mail or otherwise in writing, in which event the Member shall receive a prorated refund of any prepaid, periodic Subscription Fees (such proration to be calculated using the date on which the Agreement terminated). The Member may terminate the Member’s Subscription by written notice to PLATINUM if PLATINUM materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the Member describing the breach in reasonable detail. If the Member terminates the Member’s Subscription due to a material breach by PLATINUM and PLATINUM fails to cure said breach within thirty (30) days following receipt of written notice from the Member describing the breach in reasonable detail, then the Member shall be entitled to a prorated refund of any prepaid, periodic Subscription Fees (such proration to be calculated using the date on which the Agreement terminated). THE MEMBER ACKNOWLEDGES AND AGREES THAT THE APPLICATION MAY HAVE A MECHANISM WHEREBY PLATINUM CAN LIMIT OR DISABLE THE MEMBER’S ACCESS TO THE APPLICATION. THE MEMBER AGREES THAT PLATINUM MAY USE SUCH MECHANISM UPON ANY EXPIRATION OR TERMINATION OF THE MEMBER’S SUBSCRIPTION, OR IF PLATINUM SUSPENDS THE MEMBER’S ACCESS TO OR USE OF THE APPLICATION AS PERMITTED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- ADVERTISING ON THE WEBSITE. PLATINUM may, in its sole and absolute discretion, place its own advertising as well as advertising of third parties on any portion of the Website. Such advertising may include, without limitation, pop-ups, landing pages, banners, and crawlers. Third-party advertising appearing in any area of the Broker/Dealer Library shall be approved by the Member’s Broker/Dealer.
- THIRD-PARTY CONTENT. The Website contains content and information from Third-Party Providers and/or links to third-party websites, including but not limited to advertising (“Third-Party Content”). Such content is not under the control of PLATINUM Advisor Marketing Strategies, LLC, and PLATINUM is not responsible for such content, including, without limitation, any link contained in such content or any changes or updates to such content. PLATINUM is providing access to such Third-Party Content to the Member only as a convenience, and the inclusion of or access to such content does not imply endorsement by PLATINUM of such content or of the affiliate. The Member may be subject to additional and/or different terms, conditions, and privacy policies when the Member accesses or uses third-party services, content, software, or websites. PLATINUM reserves the right to remove content that, in PLATINUM’s judgment, does not meet its standards, but PLATINUM is not responsible for any failure or delay in removing such material. PLATINUM is not and shall not be responsible for (a) the terms and conditions of any transaction between the Member and any third party; (b) any insufficiency of or problems with any such third party’s background, insurance, credit, or licensing; or (c) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that the Member has a dispute with any such third party, the Member releases PLATINUM (and its affiliates, suppliers, agents, and employees) from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
15.1. Third-Party Messages. Messages generated by Third-Party Providers may be made available through the Website and Application subject to this Section 15. Such Messages are the property of the corresponding provider. Accordingly, the Member’s use of such Messages may be subject to additional or different licenses than those specified herein and may be subject to additional fees not included in the Subscription Fees specified in Section 4.4 herein.
- NO REPRESENTATIONS OR WARRANTIES. The Website and Application are provided on an “as available,” and “as is” basis. To the maximum extent permitted by applicable law, PLATINUM and its parent companies, subsidiaries, affiliates, suppliers, and licensors disclaim all representations and warranties of any kind with respect to the Website, Application, and any Messages, including but not limited to implied warranties of non-infringement, title, merchantability, quiet enjoyment, quality of information, and fitness for a particular purpose. Without limiting the generality of the foregoing, PLATINUM does not represent or warrant that the Website, the Application, or the Messages will meet the Member’s requirements; that the operation of the Website or Application will be uninterrupted or error-free; or that defects in the Website, the Application, the Messages, or related documentation will be corrected. PLATINUM makes no representation or warranty of any kind, expressed or implied, as to the speed, operation, or reliability of the Website or Application; the accuracy or completeness of any information accessible via the Website or Application; or the availability, quality, or safety of Messages or any other products or services available through the Website or Application. Further, PLATINUM does not represent or warrant that the Website or Application, or the content available through the Website or Application, are free of viruses or other harmful components. No oral or written information or advice given to the Member or the Member’s agent by PLATINUM or any other party with respect to the Website or Application or anything related thereto shall create a representation or warranty, or in any way increase the scope of PLATINUM’s obligations hereunder. PLATINUM assumes no responsibility and makes no representations, warranties, recommendations, endorsements, or approvals with regard to any Messages, opinions, advice, statements, products, services, offers, or other information or materials expressed or made available by third parties, including but not limited to Third-Party Providers, through or in connection with the Website or Application. The Member assumes total responsibility and risk for the Member’s use of the Website, the Application, and any and all Messages and related services.
- LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL PLATINUM OR ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE FOR
ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA, AND/OR BUSINESS INTERRUPTION), ARISING OUT OF OR RELATING IN ANY WAY TO THE USE OR INABILITY TO USE THE WEBSITE OR APPLICATION, ANY RELATED SERVICES, OR ANY CONTENT OR INFORMATION CONTAINED THEREIN, EVEN IF PLATINUM OR ANY SUCH RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, PLATINUM’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE SUBSCRIPTION FEES PAID BY THE MEMBER DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD. THE MEMBER AGREES THAT THE MEMBER ACCEPTS SOLE AND COMPLETE RESPONSIBILITY FOR ANY DECISIONS MADE OR ACTIONS TAKEN BY THE MEMBER IN RELIANCE UPON THE WEBSITE OR APPLICATION. THE MEMBER ACKNOWLEDGES AND AGREES THAT THE WEBSITE AND APPLICATION ARE NOT INTENDED TO SUPPLY TAX, INVESTMENT, OR LEGAL ADVICE. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
- INDEMNIFICATION. The Member agrees to indemnify, defend, and hold harmless PLATINUM and its employees, members, directors, managers, officers, agents, and affiliates from and against any loss, liability, penalty, and any expenses, including attorneys’ fees, witness fees, damages, judgments, fines, and amounts paid in settlement and any other amounts that PLATINUM may suffer or incur as a result of (a) any failure by the Member or any employee, agent, or subcontractor of the Member to comply with the terms of this Agreement; (b) any warranty or representation made by the Member or any employee, agent, or subcontractor of the Member being false or misleading; (c) any representation or warranty made by the Member or any employee, agent, or subcontractor of the Member to any third person other than as specifically authorized by this Agreement; (d) negligence of the Member or any employee, agent, or subcontractor of the Member; (e) any conduct by the Member or any employee, agent, or subcontractor of the Member that was knowingly fraudulent or deliberately dishonest or that constituted willful misconduct; (f) any conduct by the Member or any employee, agent, or subcontractor of the Member that constitutes a breach of fiduciary duty to its client(s) or results in any personal profit or advantage to which the Member or any employee, agent, or subcontractor of the Member is not legally entitled; or (g) any alleged or actual violations by the Member or any employee, agent, or subcontractor of the Member of any governmental laws, regulations, or rules.
18.1. Terms of Indemnification. Upon receipt of any third-party claim, PLATINUM shall have the right to assume the sole defense, at the Member’s expense, by attorneys chosen by PLATINUM. The Member shall provide PLATINUM with such assistance, without charge, as may be requested in connection with any such defense, including, without limitation, providing PLATINUM with such information, documents, records, and reasonable access to the Member, its employees, agents, or subcontractors, as deemed necessary by PLATINUM. The Member shall not settle any third-party claim or waive any defense without the prior written consent of PLATINUM.
18.2. Member Status. The Member understands and agrees that PLATINUM Advisor Marketing Strategies, LLC prohibits the Subscription to its Website by any Financial Products and Services Sales Representatives or entities whose conduct is not in good standing and in compliance with the Certified Financial Planner Board of Standards, the US Securities and Exchange Commission, and any federal and state laws or governing body that has the authority to discipline the Member, or by any Financial Products and Services Sales Representatives or entities whose conduct is in contravention of any US, international, or other money-laundering regulations or conventions. The Member hereby represents and warrants that the Member and its employees and agents are in good standing and in compliance with federal and state laws and professional rules of conduct by any governing body that has the authority to discipline the Member. The Member will promptly notify PLATINUM of any change in its status or the status of any of its employees and agents.
18.3. Forced Termination. The Member understands and agrees that, notwithstanding anything to the contrary contained in this agreement, if it is discovered that the Member and its employees and agents are not in compliance with federal and state laws and professional rules of conduct by any governing body that has the authority to discipline the Member, PLATINUM Advisor Marketing Strategies, LLC may terminate the Member’s Subscription immediately and without notice, and the Member shall not be entitled to a refund of any prepaid Subscription Fees or any other form of loss or damages as a result of such forced termination.
18.4. Release of Confidential Information. The Member understands and agrees that PLATINUM may release confidential information about the Member to proper authorities if PLATINUM, in its sole discretion, determines that it is in its best interest in light of relevant laws, rules, and regulations governing Financial Products and Services Sales Representatives.
- US GOVERNMENT RESTRICTED RIGHTS. The Application and any related documentation are provided with Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer Software–Restricted Rights at 48 CFR 52.227-19, and in similar clauses in the NASA FAR Supplement, as applicable. Manufacturer is PLATINUM, 10973 SE 175th Place, Suite 103, Summerfield, FL 34491.
- ARBITRATION. Any and all disputes, controversies, or claims arising out of or relating to this Agreement, including, without limitation, any claims or demands based on contract law, tort law, equity, statute, and/or the common law, shall be determined by binding arbitration, except that PLATINUM, or its affiliate, Fross and Fross Financial, LLC, may seek such injunctive relief as may be appropriate to enforce this Agreement pending an arbitration. Arbitration will be administered by the American Arbitration Association in accordance with the Commercial Arbitration Rules. Any party may initiate arbitration by giving the other party a written demand for arbitration in accordance with the notice provisions of the Agreement. Within ten (10) days of receipt of a demand for arbitration under this paragraph, the other party shall deliver a written response on the demanding party, specifying the party’s intent to participate or abstain from participation in the demanded arbitration. In the event the other party does not deliver a written response to the demanding party within the time period specified above, the demanding party shall proceed as if the party has not agreed to participate.
Arbitration shall be initiated by service of the demand for arbitration. Arbitration shall be initiated within a reasonable time after the claim has arisen. In no event may arbitration be demanded after the date the claim would be barred by the applicable statute of limitations. The arbitration shall be conducted and determined by a sole arbitrator. The arbitrator will be chosen by mutual agreement of the parties. If the parties fail to reach agreement within thirty (30) days of service of the demand for arbitration, the arbitrator will be chosen by mutual agreement of two arbitrators, one appointed by each party. The two arbitrators’ choice of arbitrator shall be final and binding on the parties. The two arbitrators will use their best efforts to appoint an arbitrator within ten (10) days of being informed of the parties’ request for an appointment.
The up-front costs of the arbitration and arbitrator fees shall be borne by the parties equally. Costs and fees so paid will be subject to reallocation by the arbitrator in the award as provided for in this Agreement. If any party fails or refuses to pay its share of the cost of arbitration, the other party may, at its option, (1) elect to pay the entire cost of the arbitration, in which case the obligation of the nonpaying party to otherwise participate in the arbitration is not excused, or (2) immediately proceed to litigation. Regardless of which party ultimately prevails, the arbitrator shall award liquidated damages in the amount of ten thousand dollars ($10,000.00) to the party who paid the costs of the arbitration.
At the request of a party, the arbitrator may in his or her discretion order reasonable discovery on a showing of good cause. The parties desire a speedy resolution of any disputes that may arise. To that end, the arbitrator will, on his or her appointment, consult with the parties to discuss a reasonable hearing and, if appropriate, discovery schedule. Unless otherwise agreed by the parties, the arbitration hearings will be conducted in Marion County, Florida.
In the event of a dispute over whether particular issues are arbitral under this Agreement, the arbitrator, and not the court, shall determine whether or not the arbitrator has jurisdiction over such issues, and the arbitrator’s decision as to the arbitrator’s jurisdiction over issues will be final and binding.
This Agreement to arbitrate is intended to be binding on and to inure to the benefit of the parties to this Agreement, their principals, successors, assigns, affiliates, partners, employees, parent or subsidiary entities, and any other parties whose claims or defenses may arise out of or relate to this Agreement. The arbitration award shall be in writing, signed by the arbitrator, and shall be in the form of a written, reasoned opinion setting forth the arbitrator’s findings of fact and conclusions of law.
In any arbitration arising out of this Agreement, the prevailing party is entitled to reasonable attorney fees. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. If a party fails or refuses to appear or participate in the arbitration, or in any portion of the arbitration, after having been given notice and opportunity to participate as provided in this agreement, the arbitration will proceed and the arbitrator may render a final award on the basis of the evidence presented by the participating party. An award rendered under such circumstances is valid and enforceable as if all parties had participated fully.
- MISCELLANEOUS. This Agreement constitutes the entire understanding and agreement between PLATINUM and the Member with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. This Agreement is governed by and construed in accordance with the laws of the state of Florida, USA, as applied to agreements entered into and wholly performed within Florida between Florida residents. Any action or proceeding arising from or relating to this Agreement that is brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the county of Marion, state of Florida, USA, and the parties hereby submit to the personal jurisdiction of such courts for purposes of any such action or proceeding. In any action arising from this Agreement, the prevailing party shall be entitled to recover its costs, including expert witness fees and attorney’s fees, from the other party. THIS AGREEMENT SHALL NOT BE GOVERNED BY THE 1980 UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by PLATINUM to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. PLATINUM shall not be responsible for any delays, errors, failures to perform, interruptions, or disruptions in the Application caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, storm, power failure, or failures of the Internet. Any notices from PLATINUM under this Agreement that are sent by e-mail, or that are posted in the Application or on PLATINUM’s website at www.platinumstrategies.com (or on a sub-page thereof), shall be deemed given when sent or posted, as applicable.
- NO UNLAWFUL OR PROHIBITED PURPOSE. As a condition of the Member’s use of the Website and Application, the Member warrants to PLATINUM that the Member will not use the Website for any purpose that is unlawful or prohibited by this Agreement or by applicable laws or regulations.
This Subscriber Service Agreement (“Agreement”) is entered into as of the date on which the Subscriber first subscribes to the Platinum Strategies Online Services (as defined below) (“Effective Date”) by and between Platinum Strategies, LLC, or Platinum Advisor Marketing Strategies, LLC, (individually and collectively referred to herein as “PLATINUM STRATEGIES”) and each online Subscriber to PLATINUM STRATEGIES Online Services (“Subscriber”) and terminates as provided in Section 3.2 below. By using or accessing Platinum Strategies Online Services, each Subscriber agrees to the terms and conditions contained in this Agreement, as amended or updated from time to time.
ARTICLE 1. GENERAL.
1.1. Overview of Agreement. This Agreement represents the terms and conditions under which PLATINUM STRATEGIES shall provide Subscriber access to and use of the PLATINUM STRATEGIES Online Services package or packages subscribed to (all of such services, together with any and all content, text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, and other materials viewed on, accessed through, or contained in any PLATINUM STRATEGIES Website or Online Service, are collectively referred to herein as “PLATINUM STRATEGIES Online Services“), which may be amended from time to time to reflect additional or amended PLATINUM STRATEGIES Online Services products ordered by Subscriber. The PLATINUM STRATEGIES Online Services shall be provided to Subscriber via the Internet’s World Wide Web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement.
1.2. Term. The Term of this Agreement with regard to any Subscriber shall begin immediately upon that Subscriber’s subscription to any PLATINUM STRATEGIES Online Services and shall end upon the termination of the Agreement as set forth herein. Certain provisions of this Agreement shall survive any termination of the Agreement, as provided herein.
ARTICLE 2. PLATINUM STRATEGIES ONLINE SERVICES.
2.1. Access Rights. During the Term of this Agreement (as defined in Section 1.2 above), Subscriber will have a limited, revocable, nontransferable, and nonexclusive license for Subscriber and/or Subscriber’s employees (“Authorized User”) to use the PLATINUM STRATEGIES Online Services and related documentation solely for Subscriber’s business purposes consistent with the terms and conditions of this Agreement. PLATINUM STRATEGIES will issue to one Authorized User (“PLATINUM STRATEGIES Online Services Administrator”) an individual logon identifier and password (“Administrator’s Logon”) for purposes of administering, ordering, or otherwise managing its PLATINUM STRATEGIES Online Services. Subscriber acknowledges and agrees that only its PLATINUM STRATEGIES Online Services Administrator shall be authorized to bind Subscriber in connection with any service provided to Subscriber under this Agreement. Using the Administrator’s Logon, the PLATINUM STRATEGIES Online Services Administrator may assign each remaining Authorized User a unique logon identifier and password and may assign and manage the business rules that control each such Authorized User’s access to the PLATINUM STRATEGIES Online Services, provided this option is allowed by the Subscriber. The Subscriber shall use commercially reasonable efforts to ensure that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier, (b) not disclose such logon identifier to any person or entity, (c) not permit any other person or entity to use his or her logon identifier, (d) use the PLATINUM STRATEGIES Online Services consistent with the assigned business rules, and (e) use the PLATINUM STRATEGIES Online Services in accordance with the terms and conditions of this Agreement. The Subscriber will be responsible for (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement and (g) any and all costs and expenses incurred through the authorized use of the Subscriber’s Logon. PLATINUM STRATEGIES, in its sole discretion, has the right to suspend or terminate a Subscriber’s account and to refuse any and all current or future use of any PLATINUM STRATEGIES service, including but not limited to PLATINUM STRATEGIES Online Services, for any reason at any time. PLATINUM STRATEGIES reserves the right to refuse any service to anyone for any reason at any time.
2.2. Restrictions. The Subscriber and its Authorized Users shall be familiar with and practice good Internet etiquette. The Subscriber and its Authorized Users will comply with the rules appropriate to any network to which PLATINUM STRATEGIES may provide access. Neither the Subscriber nor its Authorized Users shall post, transmit, or permit Internet access to information the Subscriber or Authorized User desires to keep confidential. The following shall be strictly prohibited by Subscriber and its Authorized Users, the breach of which shall constitute a material breach of this Agreement:
- posting any material or information that is illegal, indecent, pornographic, threatening, or offensive or that violates any local or federal law or any ordinance or any network, IRC, or USENET policy;
- bullying, intimidating, or harassing any user or third party;
- selling, leasing, licensing, sublicensing, posting, or sharing the PLATINUM STRATEGIES Online Services or any portion thereof;
- modifying, changing, altering, translating, creating derivative works from, reverse engineering, disassembling, or decompiling the PLATINUM STRATEGIES Online Services in any way for any reason;
- providing, disclosing, divulging, sharing, posting, or making available to, or permitting the use of, the PLATINUM STRATEGIES Online Services or any part thereof to any third party;
- copying or reproducing all or any part of the PLATINUM STRATEGIES Online Services (except as expressly provided for herein);
- interfering, or attempting to interfere, with the PLATINUM STRATEGIES Online Services in any way;
- engaging in any activity that undermines or causes harm to a PLATINUM STRATEGIES server or to any third-party server;
- engaging in spamming, mail bombing, spoofing, or any other fraudulent, illegal, or unauthorized use of the PLATINUM STRATEGIES Online Services;
- introducing into or transmitting through the PLATINUM STRATEGIES Online Services any virus, worm, trap door, back door, timer, clock, counter, malicious code, or other limiting routine, instruction, or design;
- removing, obscuring, or altering any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the PLATINUM STRATEGIES Online Services;
- engaging in activity in any Violation of System or Network Security (such activity includes, but is not limited to, unauthorized access to or use of data, systems, or networks; any attempt to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network; interfering with service to any user, host, or network, including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, and broadcast attacks; and forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting [collectively “Violations of System or Network Security”]);
- transmitting, distributing, or storing any information, data, or material in violation of US or state regulation or law or common law (such information, data, or material includes, but is not limited to, material or information protected by copyright, trademark, trade secret, or other intellectual property rights);
- using PLATINUM STRATEGIES Online Services in such a way that adversely affects other PLATINUM STRATEGIES users (such use includes, but is not limited to, attacking or attempting to gain unauthorized access to servers and services that belong to PLATINUM STRATEGIES or its users [i.e., computer hacking] and participating in behavior that results in reprisals that adversely affect the PLATINUM STRATEGIES Online Services or other Subscribers’ or Authorized Users’ access to the PLATINUM STRATEGIES Online Services);
- using or attempting to use any third party’s Internet account or computer without the owner’s authorization (such use includes, but is not limited to, “Internet Scanning” [tricking other people into releasing their passwords], password robbery, security hole scanning, and port scanning);
- doing anything that is unlawful, misleading, malicious, or discriminatory;
- engaging in or allowing any action involving the PLATINUM STRATEGIES Online Services that is inconsistent with the terms and conditions of this Agreement;
- sharing or divulging user names or passwords to any person or entity who is not an Authorized User; or
- using any third party’s account, user name, or password.
2.3. Non-exclusivity. The parties acknowledge and agree that PLATINUM STRATEGIES is providing access to and use of the PLATINUM STRATEGIES Online Services to multiple users and that the Subscriber’s access to PLATINUM STRATEGIES Online Services is nonexclusive.
2.4. Availability. PLATINUM STRATEGIES shall use commercially reasonable efforts to keep the PLATINUM STRATEGIES Online Services available on a twenty-four-hour-a-day, seven-day-a-week basis, subject to scheduled downtime for maintenance purposes. The parties acknowledge that because the Internet, or a connection thereto, is neither owned nor controlled by any one entity, PLATINUM STRATEGIES makes no guarantees that any given user will be able to access the PLATINUM STRATEGIES Online Services at any given time, and PLATINUM STRATEGIES shall not be liable to the Subscriber for failure of accessibility to the PLATINUM STRATEGIES Online Services.
ARTICLE 3. TERMS AND FEES.
3.1. Service Commitment. The Subscriber’s Service Commitment begins on the day the Subscriber places an order for the PLATINUM STRATEGIES Online Services and ends thirty (30) days from official notice of cancellation received by PLATINUM STRATEGIES, delivered by the Subscriber. THE SUBSCRIBER’S SERVICE SHALL AUTOMATICALLY RENEW ON A MONTH-TO-MONTH BASIS UNTIL EITHER PARTY GIVES NOTICE PURSUANT TO THE TERMINATION PROVISION BELOW. Monthly fees will begin exactly two (2) months after the design call/setup fee. These fees are not contingent upon a completed, live website or social media. They are contingent solely upon the date of the design call/setup fee.
3.2. Thirty-Day Subscription Grace Period/Termination. This Agreement, and the Subscriber’s and Subscriber’s Authorized Users’ access to PLATINUM STRATEGIES Online Services, shall immediately terminate upon any material breach of this Agreement by the Subscriber or any of its Authorized Users. Subscriber may terminate this Agreement within thirty (30) days from activating the service and prior to submitting personalization elements without forfeiting fees. After thirty (30) days and/or submitting any personalization elements, the Subscriber will pay for monthly service fees and charges incurred through the termination date, including setup fees. Either party may terminate this Agreement at any time and for any reason with thirty (30) days’ notice to the other party. For the Subscriber’s termination to be effective, the Subscriber must speak with a PLATINUM STRATEGIES service representative at 877-421-5593 or send written notice of termination to PLATINUM STRATEGIES via facsimile at 877-817-1741.
3.3. Payment. All charges for PLATINUM STRATEGIES Online Services must be paid according to the then-current applicable prices. There is no proration of such charges if service is terminated on any day other than the last day of the billing cycle. Upon entering this Agreement, the Subscriber shall elect to pay by direct charge to either a credit or a debit card. The Subscriber thereby authorizes PLATINUM STRATEGIES to charge the Subscriber’s credit or debit card to pay for any and all future charges that may apply to the Subscriber’s account. The Subscriber must notify PLATINUM STRATEGIES of any changes to the Subscriber’s card account (including, without limitation, applicable account number or cancellation or expiration of the account), billing address, or any information that may prohibit PLATINUM STRATEGIES from charging the account. If the Subscriber fails to pay any fees and taxes within seven (7) days from applicable due date, the Subscriber’s account shall be put into a suspension period of an additional fifteen (15) days. During this time, the Subscriber’s access to the services will be restricted. If during this fifteen-day suspension period, the Subscriber provides valid payment information and pays the balance due in full, service will be reinstated upon the processing of the new payment information. In addition, failure to fully pay any fees and taxes within thirty (30) days after the applicable due date will be deemed a material breach of this Agreement. The Subscriber is responsible for any costs associated with reinstatement of services, if any. Any such suspension or termination would not relieve the Subscriber from paying past due fees plus interest at the lesser of 1.5% per month or the amount allowed by law in the Subscriber’s state of residence. In the event of collection enforcement, the Subscriber will be liable for any reasonable costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs, and collection agency fees.
3.4. Obligations upon Termination or Expiration and Nonrenewal. Upon the expiration and nonrenewal or upon the termination of this Agreement for any reason, (a) the Subscriber’s and all of its Authorized Users’ access to, and use of, the PLATINUM STRATEGIES Online Services will immediately terminate, and (b) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and shall provide written verification of same.
3.5. Refund Policy. PLATINUM STRATEGIES Online Services involve an initial setup process and an associated setup fee. The products also have a monthly recurring fee. If and when a client pays for services but fails to participate in the initial setup, a full refund for any monies paid will be made available to the client when requested. In the event a client pays for services and participates in a setup call but chooses not to complete the site setup, PLATINUM STRATEGIES will provide a 50% refund on the setup fees paid by the client if the client cancels within thirty (30) days of the setup call. In the event that a client pays for services, participates in the setup call, and either completes the site setup or calls to cancel thirty-one (31) days or more after the setup call, there will be no refund on the setup fees portion of the order. Regarding the monthly recurring fees, amounts paid are nonrefundable. Subscriptions to PLATINUM STRATEGIES services are prepaid. As such, any cancellation that occurs in the middle of a Subscription period will be made effective on the final day of the prepaid term. Any fees or charges for custom branding work are nonrefundable. Subscribers are solely responsible for properly cancelling their accounts. The Subscriber must call 877-421-5593 and talk to a live representative to cancel the account. Please note that allowing a credit card to expire—or not submitting payment by check—regardless of invoice receipt status, will not automatically cancel an account. PLATINUM STRATEGIES maintains all account data and may allow Subscriptions to occur, in addition to providing a Subscriber with continued access to an account. The Subscriber will remain responsible for paying the monthly charge, which will accrue to the account, until PLATINUM STRATEGIES receives a cancellation notice. PLATINUM STRATEGIES will send notice to the e-mail on record if a credit card is declined. PLATINUM STRATEGIES reserves the right to send delinquent accounts to a collection agency if they are not paid within three months. PLATINUM STRATEGIES also reserves the right to cancel an account if PLATINUM STRATEGIES is unable to secure payment within a reasonable period of time.
ARTICLE 4. WARRANTIES.
4.1. Subscriber Warranty. The Subscriber represents and warrants to PLATINUM STRATEGIES that (a) the Subscriber has the authority to enter into this Agreement and perform its obligations under this Agreement, (b) the Subscriber will use the PLATINUM STRATEGIES Online Services only for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party, and (c) the Subscriber warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited.
4.2. PLATINUM STRATEGIES Warranty. PLATINUM STRATEGIES warrants that (a) PLATINUM STRATEGIES has the authority to enter into this Agreement and perform its obligations under this Agreement, and (b) PLATINUM STRATEGIES will perform the services required under this Agreement in a professional and workmanlike manner.
4.3. Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, PLATINUM STRATEGIES MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO ANY PLATINUM STRATEGIES ONLINE SERVICES. PLATINUM STRATEGIES SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PLATINUM STRATEGIES IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND THE SUBSCRIBER HEREBY RELEASES PLATINUM STRATEGIES, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM SUBSCRIBER HAS AGAINST ANY SUCH THIRD PARTIES. PLATINUM STRATEGIES DOES NOT GUARANTEE THAT PLATINUM STRATEGIES ONLINE SERVICES WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE OR THAT PLATINUM STRATEGIES ONLINE SERVICES WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. PLATINUM STRATEGIES MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF ANY CONTENT CONTAINED IN ANY PLATINUM STRATEGIES ONLINE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM A SUBSCRIBER’S OR ANY OF ITS AUTHORIZED USERS’ ACCESS TO AND USE OF PLATINUM STRATEGIES ONLINE SERVICES; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; (C) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; AND/OR (D) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA PLATINUM STRATEGIES ONLINE SERVICES.
PLATINUM STRATEGIES is not responsible for disruption in automatic content due to updates or any changes made to or by third-party companies (e.g., LinkedIn, Twitter, Facebook, YouTube).
ARTICLE 5. LIMITATION OF LIABILITY.
PLATINUM STRATEGIES’S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT OR INDIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY THE SUBSCRIBER TO PLATINUM STRATEGIES FROM THE PAST TWELVE MONTHS IMMEDIATELY PRIOR TO THE DATE THE LIABILITY ACCRUES. IN NO EVENT SHALL PLATINUM STRATEGIES OR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR FOR ANY LOST PROFITS, AS THEY MAY RESULT FROM THE SUBSCRIBER’S OR ANY OF ITS AUTHORIZED USERS’ USE OF PLATINUM STRATEGIES ONLINE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SUBSCRIBER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
PLATINUM STRATEGIES will not be liable for losses caused by any unauthorized use of your account. A Subscriber may be liable for the losses of PLATINUM STRATEGIES or others due to such unauthorized use.
ARTICLE 6. INDEMNIFICATION.
The Subscriber agrees to indemnify, defend (at PLATINUM STRATEGIES’s sole option and at the Subscriber’s sole expense), and hold harmless PLATINUM STRATEGIES, its managers, directors, officers, employees, independent contractors, and agents and defend any action brought against same with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a third-party claim arising out of or relating to the Subscriber’s use of PLATINUM STRATEGIES Online Services.
ARTICLE 7. CONFIDENTIAL INFORMATION.
“Confidential Information” will include the terms of this Agreement, any software provided by PLATINUM STRATEGIES under this Agreement, the logon identifiers and/or passwords provided to the Subscriber, the prices and fees charged under this Agreement, any other materials marked confidential by the Subscriber or PLATINUM STRATEGIES, and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance or that a reasonable person would presume to be confidential due to the nature of the information disclosed. Each party acknowledges and agrees that (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party’s prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party’s Confidential Information, including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is (d) publicly available; (e) already in the other party’s possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party’s Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity, provided to the extent permitted under applicable law, no less than ten (10) days’ written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.
ARTICLE 8. PROPRIETARY RIGHTS.
No right (except for the license granted by this Agreement), title, or interest of intellectual property or other proprietary rights in and to PLATINUM STRATEGIES Online Services and/or other products or services made available under this Agreement is transferred to the Subscriber hereunder. PLATINUM STRATEGIES and its Third-Party Providers retain all right, title, and interests, including, without limitation, all copyright, trade secret, intellectual property, and other proprietary rights in and to the PLATINUM STRATEGIES Online Services and/or other products or services provided under this Agreement. The Subscriber will retain all right, title, and interest to the documents created by the Subscriber using the PLATINUM STRATEGIES Online Services, subject to any rights of PLATINUM STRATEGIES in underlying works from which such documents were derived.
The overall design, content, photography, and any created graphics for the website or social media accounts shall remain owned by PLATINUM STRATEGIES. Any stock photography provided or used shall remain PLATINUM STRATEGIES royalty and will not be provided for use to the Member. Any items paid for by the Subscriber will be returned upon request.
PLATINUM STRATEGIES is not a social media archiving service. If social media archiving is required, it is the Subscriber’s responsibility to fulfill this obligation. PLATINUM STRATEGIES provides website hosting. Domain name registration, DNS records, and MX (e-mail) records are the Subscriber’s responsibility.
ARTICLE 9. MISCELLANEOUS.
9.1. Assignment. The Subscriber will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without PLATINUM STRATEGIES’s prior written consent, which consent may be withheld, delayed, or conditioned in PLATINUM STRATEGIES’s discretion. PLATINUM STRATEGIES will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to the Subscriber.
9.2. Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances, or terrorism.
9.3. Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of PLATINUM STRATEGIES and the Subscriber. The parties expressly disclaim the right to claim the enforceability or effectiveness of (a) any amendments to this Agreement that are not executed by an authorized representative of PLATINUM STRATEGIES and the Subscriber; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel, or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
9.4. Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless a party in good faith deems the unenforceable provision to be essential, in which case such party will have the right to terminate this Agreement.
9.5. Governing Law, Jurisdiction, and Dispute Resolution with Third-Party Licensors. This Agreement is made in the state of Florida and will be interpreted and construed in accordance with the laws of the state of Florida, without regard to conflict of law principles. All disputes brought by the Subscriber arising out of this Agreement shall be brought only in the district and federal courts located in or for Florida. You agree that PLATINUM STRATEGIES Online Services shall be deemed a passive website that does not give rise to personal jurisdiction over PLATINUM STRATEGIES, either specific or general, in jurisdictions other than Florida.
9.6. Non-solicitation. The Subscriber acknowledges and agrees that the employees and consultants of PLATINUM STRATEGIES are a valuable asset to PLATINUM STRATEGIES and are difficult to replace. Accordingly, the Subscriber agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and nonrenewal or termination of this Agreement, the Subscriber will not solicit or attempt to solicit any employee or consultant of PLATINUM STRATEGIES.
9.7. System and Network Security. PLATINUM STRATEGIES may investigate suspected Violations of System or Network Security and may involve and will cooperate with law enforcement if a criminal violation is suspected. Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network and to respond to complaints incurred by PLATINUM STRATEGIES. Such labor is categorized as emergency security breach recovery and is currently charged at two hundred and fifty dollars ($250.00) per hour required. PLATINUM STRATEGIES is concerned with the privacy of online communications and websites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, PLATINUM STRATEGIES urges Subscribers and their Authorized Users to assume that all of their online communications are insecure. PLATINUM STRATEGIES does not take responsibility for the security of any information transmitted over PLATINUM STRATEGIES facilities.
9.8. Network Responsibility. Subscribers and their Authorized Users have a responsibility to use the PLATINUM STRATEGIES Online Services responsibly. This includes respecting the other users of PLATINUM STRATEGIES. Violations of this policy may be reported directly to the FBI’s Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/hq.htm. PLATINUM STRATEGIES will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
9.9. Lawful Purpose. Servers hosted within PLATINUM STRATEGIES network are open to the public. You are solely responsible for your usage of the PLATINUM STRATEGIES network and servers, and any statement you make on servers hosted within the PLATINUM STRATEGIES network may be deemed “publication” of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
9.10. Suspension. If PLATINUM STRATEGIES in its sole discretion determines that a Subscriber’s server has become the source or target of any violation concerning the PLATINUM STRATEGIES Acceptable Use Policy (AUP), PLATINUM STRATEGIES reserves the right to suspend network access to that server. While PLATINUM STRATEGIES will attempt to contact the Subscriber before suspending network access to the Subscriber’s server(s), prior notification to the Subscriber is not assured. In certain cases, PLATINUM STRATEGIES will contact law enforcement and other agencies regarding these activities. Subscribers are responsible for all charges, as well as any fees relating to the investigation, suspension, administration, and handling of their servers before, during, and after the suspension period.
9.11. Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
9.12. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes and renders ineffective all previous communications, representations, understandings, and agreements, including, but not limited to, all terms of any “shrink wrap,” “click wrap,” “browse wrap,” or other PLATINUM STRATEGIES license included in any package, media (including the Internet), electronic version of the PLATINUM STRATEGIES Online Services, and of any other PLATINUM STRATEGIES form not signed by the Subscriber and any terms or conditions on PLATINUM STRATEGIES’s website (excluding this document as approved by Company), either oral or written, between the parties with respect to said subject matter.
9.13. Amendments. PLATINUM STRATEGIES may amend the terms and conditions of this Agreement at any time. If PLATINUM STRATEGIES makes any such changes, notice of changes may be posted on its website or in this terms and conditions webpage. The Subscriber’s continued use of the PLATINUM STRATEGIES Online Services, following notice of the changes to our terms, policies, or guidelines, constitutes the Subscriber’s acceptance of the amended terms, policies, or guidelines
9.14. Third-Party Websites. PLATINUM STRATEGIES Online Services may contain links to third-party websites that are not owned or controlled by PLATINUM STRATEGIES. PLATINUM STRATEGIES has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, PLATINUM STRATEGIES will not and cannot censor or edit the content of any third-party site. By using PLATINUM STRATEGIES Online Services, you expressly relieve PLATINUM STRATEGIES from any and all liability arising from your use of any third-party website.
ARTICLE 10. TRADEMARK AND COPYRIGHT LEGAL NOTICES.
PLATINUM STRATEGIES, the PLATINUM STRATEGIES logo, PLATINUM STRATEGIES Online Services, the PLATINUM STRATEGIES Online Services logo, among others, are registered trademarks and/or registered service marks of PLATINUM STRATEGIES, LLC., or one of its subsidiaries, in the United States and other countries. Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered in various jurisdictions.