THIS SOFTWARE TOOL (“TOOL”) IS OPERATED AND OFFERED BY KEY MANAGEMENT GROUP, INC. (“OPERATOR”) DBA ADVISOR LEGACY. THESE TERMS OF USE (“TOU”) GOVERN YOUR ACCESS TO AND USE OF THE TOOL. YOU SHOULD CAREFULLY READ THESE TOU. YOUR REGISTRATION WITH AND USE OF THE TOOL MEANS THAT YOU HAVE READ AND UNDERSTAND THESE TOU AND THAT YOU HAVE ENTERED INTO A BINDING LEGAL AGREEMENT WITH OPERATOR. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TOU YOU SHOULD DISCONTINUE YOUR USE OF THE TOOL. IN ADDITION, WHEN USING A PARTICULAR SERVICE AND/OR ACCESSING CERTAIN INFORMATION AND MATERIALS ON OR THROUGH THE TOOL, YOU SHALL BE SUBJECT TO ANY POSTED TERMS OR RULES APPLICABLE TO SUCH SERVICES OR MATERIALS, WHICH ARE IN ADDITION TO THESE TOU. ALL SUCH TERMS OR RULES ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TOU, AND IF YOU DO NOT AGREE WITH THEM YOU SHOULD NOT USE THE TOOL, SERVICES AND/OR MATERIALS.
Through this Tool, Operator provides information, referrals and services to facilitate the purchase or sale of individual financial service practices. Users may create accounts, access information, and communicate with other users, all of whom are professionals in the financial services field and to engage in activities related to the purchase or sale of individual financial service practices. In addition, Operator will provide certain services through the Tool as described in this Agreement and in the Tool.
To register and become a “Member”, you must be at least eighteen (18) years of age or older and must be a professional in the financial services field. Membership is also open to Operator's partners and professionals in the financial services field.
Membership entitles Member to access and use the Tool and to receive basic services which are made available to all Members. Pricing for Optional Services are disclosed to you when registering for and subscribing to the Services. Basic Services and Optional Services are collectively referred to as “Services.”
Sellers. A seller may offer a financial services practice for sale to other Members by completing a listing in accordance with the instructions in the Tool (“Listing”). Operator will invest time and effort to assist a seller with a listing and to find a suitable buyer, including providing you with information to market your practice and presenting qualified buyers for your consideration. A seller agrees to pay an appropriate listing fee to Operator under the section titled “Seller Listing Fees”.
By listing a financial services business for sale, a seller represents and warrants that (1) it has the authority to offer the business for sale, and to complete a sale; (2) the description of the business, terms of sale, and any other information in the listing is true, accurate and complete; (3) the sale is not illegal under applicable law and does not violate any third party's rights or otherwise violate this Agreement or other terms in the Tool; (4) it may complete the sale; and (5) it shall negotiate any offers in good faith.
Buyers. A buyer may review listings and utilize other services in the Tool. A buyer must register with the Tool in accordance with the instructions provided. There are currently two service levels available to a buyer: (1) Basic Services which are free of charge and (2) Elite Buyer Services for which Operator charges a fee. Elite Buyer Services renew automatically and will be charged to buyer's credit card on file. Buyer must notify Operator in advance of the next renewal date if buyer wishes to terminate its subscription. Elite Buyer Services are more fully described in the Tool.
A buyer may be invited to make an offer on a listing in accordance with the instructions in the Tool (“Offer”). By submitting an Offer for purchase of a business through the Tool, buyer represents and warrants that (1) it has the authority to purchase such business, and to complete the purchase; (2) all information and terms contained in any Offer are true, accurate and complete; (3) to the best of their knowledge, it has the money, credit or other ability to purchase the business in accordance with the terms of the listing; and (4) it shall negotiate the purchase in good faith.
A buyer agrees to pay an appropriate transaction fee to Operator under the section titled “Buyer Transaction Fees”.
Operator is entitled to a listing fee from Member when Member acts as a seller in a Transaction. When Member acts as a seller in a transaction, Member shall pay Operator the applicable listing fee as set forth below or as otherwise set forth in a separate seller agreement. If these Terms are different from any applicable seller agreement, the seller agreement shall be binding. If your deal closes or you otherwise receive valuable consideration from someone who contacts you through
Operator within twenty-four (24) months of termination of your listing agreement, you agree to pay the applicable listing fee. The listing fee is calculated by multiplying the sale price by the applicable listing fee. The listing fee is paid on or before the closing date. If lending institution financing is involved, the listing fee will be withheld from seller's proceeds and paid to Operator. If Buyer is not receiving financing from a third-party lender, the listing fee shall be added to the closing statement and paid by Buyer to Operator or their designee as a distribution of the closing proceeds. Member authorizes Operator to coordinate with Buyer or Buyer's lender the distribution of the listing fee directly from the closing proceeds.
The fee % is determined according to the T-12 GDC (revenue) of the practice, as per the schedule below. The applicable fee % is then multiplied by the sale price to arrive at the fee due to Key Management Group.
|
Gross Dealer Concession (Gross Revenue) From |
To |
Fee % |
|
$0 |
$199,999 |
7.50% |
|
$200,000 |
$399,999 |
7.00% |
|
$400,000 |
$599,999 |
6.70% |
|
$600,000 |
$799,999 |
6.40% |
|
$800,000 |
$999,999 |
6.10% |
|
$1,000,000 |
$1,199,999 |
5.80% |
|
$1,200,000 |
$1,399,999 |
5.50% |
|
$1,400,000 |
$1,599,999 |
5.20% |
|
$1,600,000 |
$1,799,999 |
4.90% |
|
$1,800,000 |
$1,999,999 |
4.60% |
|
$2,000,000 |
$2,199,999 |
4.30% |
|
$2,200,000 |
$2,399,999 |
4.00% |
|
$2,400,000 |
$2,599,999 |
3.70% |
|
$2,600,000 |
$2,799,999 |
3.40% |
|
$2,800,000 |
$2,999,999 |
3.10% |
|
$3,000,000 |
$5,999,999 |
2.80% |
|
$6,000,000 |
$9,999,999 |
2.50% |
|
$10,000,000+ |
|
2.00% |
If selling Member, withdraws their practice for sale, after being published but prior to a completed Transaction, selling Member shall pay Operator 1% of the practice value (as calculated by Key Management Group) within 5 business days of withdrawal notification to Operator.
Operator is entitled to a transaction fee from Member when Member acts as a buyer in a Transaction. When Member acts as a buyer in a transaction, Member shall pay Operator 1% of the final sales price on or before the closing date. If these Terms are different from any applicable buyer agreement, the buyer agreement shall be binding.
If the selling Member chooses to engage Operator for Escrow Services, Operator is entitled to an escrow fee from the selling Member. The escrow fee will be withheld from seller's proceeds and paid to Operator. The selling Member authorizes Operator to coordinate with Buyer or Buyer's lender the distribution of the escrow fee directly from the closing proceeds.
If the Buyer chooses to engage Operator for Escrow Services, Operator is entitled to an escrow fee from the Buyer. The escrow fee from the Buyer will be invoiced separately and is due on the date of closing.
The total escrow fee is calculated by adding a base fee of $2,500 to a percentage of the Deposit, determined according to the following schedule:
|
Deposit |
<$1 MM |
$1-2 MM |
$2-3 MM |
$3+ MM |
|
Percentage of Deposit |
0.16% |
0.14% |
0.12% |
0.10% |
Members shall maintain the confidentiality of all third party business or financial information available through use of the Tool (“Confidential Information”) in the same manner in which it protects its own confidential information of like kind, but in no event shall a Member take less than reasonable precautions to prevent the unauthorized disclosure, publication, dissemination or use of the Confidential Information. Members agree to use any Confidential Information only for the purposes for which it was disclosed and shall return or destroy the Confidential Information and shall not use the Confidential Information for its own, or any third party's, benefit upon termination of this Agreement.
Operator provides an electronic marketplace and other Services for Members only. Operator receives compensation for Services to Members, and listing fees upon completion of sales. Operator may also receive other compensation related to the Tool and Services, from third parties under separate agreements. The relationship between the parties created by this Agreement is that of independent contract. This Agreement does not create, nor shall it be deemed to create, any relationship between Operator and Member as agents, partners, joint venturers, employer-employee or franchisor-franchisee. Neither party has the authority to create any obligations for the other, or to bind the other to any representation, statement or document.
Subject to the terms of this Agreement, Operator grants Member a limited, non-exclusive, non-transferable, license to (1) use the Tool; (2) view and download single copies of pages contained in the Tool; (3) post information to the Tool, as described herein; and (4) participate in communication and bidding activities through the means provided in the Tool.
All rights to the Tool not expressly granted to Member in this Agreement are reserved by Operator. Member may not use the Tool in any manner, or for any purpose, not expressly authorized by this Agreement. The Tool may be used by Member only, and may not be used by, or for the benefit of, any affiliate, subsidiary, parent company or any other third party, nor may the Tool be used to provide Services to others. Member may not remove or destroy any proprietary rights marks or legends on or in the Tool; reproduce, modify, enhance, adapt, translate, distribute, or create derivative works of the Tool or any content in the Tool (except Member's own information); transfer, assign, sublicense, rent, lease or sell the Tool or Services; or decompile, disassemble, or reverse engineer the Tool.
Operator reserves the right to change the terms and conditions of these TOU and/or any of its other policies relating to the Tool, at any time in its sole discretion. Operator shall notify you of such changes by posting the changes in the Tool and will attempt to notify you by email, as well. You are responsible for regularly reviewing notices contained in the Tool and these TOU regarding such changes. Continued use of the Tool after any such changes have been posted shall constitute your agreement to them.
To open an account, you must complete the registration process by providing Operator with current, complete and accurate information as prompted by the registration form. Should Operator suspect that such information is untrue, inaccurate, not current or incomplete, Operator has the right to suspend or terminate your usage of the Tool. Operator is entitled to rely on the information you provide and you will be responsible for updating this information to maintain it as current. Accounts are non-transferable and cannot be shared or used by more than one individual or entity.
Once you have become a Member, you will be required to create one or more personal, non-transferable passwords. You are and will be responsible for maintaining the confidentiality of that password, for all activities conducted on and with the Tool that make use of that password, and for any charges or fees incurred by the use of that password, including any use you may subsequently contend was not unauthorized by you.
Operator uses email as a primary communication channel with Members. As a Member, you grant Operator permission to communicate with you via email for any purpose, including, but not limited to, system messages and notices and marketing messages. Operator will use reasonable efforts to honor a Member's written request, if any, to opt out of marketing messages, but under no circumstances will Operator have any liability for sending an email to its Members.
Operator does not own any personal data or information that you submit to be used by Operator to provide any Service (“Data”), unless Operator specifically tells you otherwise before you submit it. Operator has and shall retain all rights, title and interests, including all intellectual property rights, in and to all Data and related databases residing on Operator's servers, including all of your Data which is stored in a form that is not identifiable as yours.
Operator may access your account, including its Data, to respond to Service or technical problems or as stated in these TOU.
You, not Operator, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and Operator shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, or for any actions or omissions which Operator takes in reliance upon your Data.
Operator has the right to use all Data subject to this Privacy Policy.
Information we collect that is not personally-identifiable: Operator collects information that is not personally identifiable (meaning, anonymous information) regarding use of the Tool, such as login information, computer-related information (browser type you used, your Internet Protocol address, last URL visited, and the date and time of day of your login). We send a “cookie” or “pixel tag” to your computer which contains an identification number that is unique to the computer you are using. You may decline to provide such information to us and/or refuse cookies in your browser, although some of our features or services may not function properly as a result, and some services may not be available.
We use this anonymous information to enhance the visitor experience, to understand how our Tool is used, to communicate with our Members about information and services relating to the Tool, to investigate and verify proper conduct, and to monitor the security and integrity of the Tool. Internally, we use data in the aggregate to analyze our business.
What we collect about you that is personally identifiable (“PI”) and how we use it: Operator collects information that you provide us when you register as a Member and accept this Agreement. All passwords are stored on our server in encrypted form. If you lose your password, we will generate a new one and send it to you.
We use your PI in accordance with the settings on your account and to provide Services in accordance with these Terms of Use.
We use PI to email you or to otherwise contact you electronically about activities relating to the Tool and our business, including advertising and promotion, and to extend certain offers from our partners. You can opt out of receiving future emails and electronic communications.
We also share your PI with partner firms to report activity within the partner firm.
We may disclose PI as required by law and/or in response to service of legal process, such as a court order, summons, subpoena, and the like.
We use PI to investigate and verify proper conduct, and to monitor the security and integrity of the Tool.
We may share PI with trusted partners who have signed agreements with Operator and agree to treat PI with at least the degree of care set forth in this Privacy Policy.
We do not sell your PI to third parties.
Once you have registered with us by accepting this Agreement you can access your account, review the information that is stored, and revise or delete that information. You will need to email us a written request to delete your entire account.
Operator and/or its licensors own and shall retain all rights, title and interests, including all intellectual property rights, in and to the Tool, and all elements thereof. Except for the express licenses granted to you herein, you neither have nor acquire any rights, title or interests in or to the Tool, or any element thereof.
“Advisor Legacy”, “advisorlegacy.com” and all other names, marks, symbols and logos used in connection with the Tool are trademarks of Operator or other third parties (the “Marks”). Operator grants you no license, permission or authorization to reproduce or use any Marks, whether owned by Operator or a third party. You agree not to display, copy, redistribute or use any Marks in any manner for any reason without Operator's prior express written consent.
Please exercise discretion while browsing the Internet using the Tool. You should be aware that when you are in the Tool, you could be directed to other Tools that are beyond Operator's control. There are links to other Tools from these pages that take you outside of Operator's Tool. This includes links from advertisers, partners and third party service providers that may use Operator's logo(s) as part of a co-branding agreement. These other Tools may send their own cookies to users, collect data,
solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers in the Tool may send cookies to users that Operator does not control. Operator reserves the right to disable links from third party Tools to the Tool at any time in its sole discretion.
Operator is not affiliated with, nor does Operator endorse or sponsor, any Tools on the Internet that are linked through or to the Tool. Operator provides any such links to you only as a matter of convenience, and in no event shall Operator be responsible or liable for any information, content, products, services or other materials on or available from or through such Tools. Operator explicitly disclaims any responsibility for the accuracy, content, or availability of information found on Tools that link to or from the Tool. Operator has not taken any steps to confirm the accuracy or reliability of any of the information contained in such third party Tools or content. Operator does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against Operator with respect to such Tools and third party content. Operator strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
In your use of the Tool, you may enter into correspondence with, and enter into agreements for the purchase / sale of a financial services practice, or participate in promotions of advertisers or sponsors showing their products and/or services through the Tool. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third party. Operator shall have no liability, obligation or responsibility for any such correspondence, transaction, exchange, purchase, sale, promotion or other activity conducted between you and any third party. Because Operator is not and cannot be a party in your communications, interactions and/or transactions with any third parties on or through the Tool, in the event that you have a dispute with one or more such third parties, you acknowledge that your sole and exclusive remedies are against such third parties. You expressly covenant not to sue or otherwise assert any claim against Operator in connection with such disputes, and hereby release Operator, its subsidiaries, affiliates, officers, directors, agents and employees from any and all claims, demands, suits, expenses, fees (including attorneys' fees), judgments, penalties, fines and damages 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.
You are solely responsible for any and all activities that occur under your account including inputting, maintaining, and managing accurate information and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify Operator immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of the Tool that is known or suspected by you. Operator shall not be responsible for any unauthorized access to, or alteration of, your transmissions or Data, any material, information or data sent or received, regardless of whether the data is actually received by Operator, or any transactions entered into through the Service or failure to abide by these TOU.
You agree to abide by all applicable local, state, and federal laws, regulations, statutes, rules and ordinances, in connection with your use of the Tool. Without limiting the foregoing, you shall not use the Tool to: (a) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses; (c) transmit or post unlawful, harassing, bigoted, racist, hateful, libelous, abusive, tortious, defamatory, threatening, harmful, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit or post any material that may infringe the intellectual property rights or other rights of third parties, including trademark, trade secret, copyright or right of publicity; (e) transmit or post any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs and cancelbots; (f) interfere with or disrupt servers or networks connected to the Tool or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Tool or computer systems or networks connected to the Tool through password mining or any other means; (h) harass or interfere with another user's use and enjoyment of the Tool; or (i) transmit or post, or promote the transmission or posting of, an illegal or unauthorized copy of another person's work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devises, or providing pirated content or links to pirated content files. In addition, you agree not to use any device, software, or routine, including but not limited to any viruses, worms, time bombs, to interfere or attempt to interfere with the proper working of the Tool or any Service, or to intercept any system, data or personal information from the Tool, nor will you take any action that imposes an unreasonable or disproportionately large load in the Tool's infrastructure.
Portions of the Tool may contain areas, such as bulletin boards and/or message boards, which provide you and other third parties an opportunity to exchange, post, broadcast, publish, circulate, transfer, share, transmit, upload and/or otherwise distribute ideas, feedback, recommendations, opinions and/or other materials and information (collectively, “Submissions”). If you make any Submissions in the Tool, you represent and warrant that you have all necessary rights in and to such
Submissions and all material they contain, that the Submissions are non-confidential and non-proprietary to you, and that such Submissions do not and will not infringe any proprietary or other rights of third parties or violate any term of these TOU. Any claim lodged with, or damage resulting to, Operator from your breach of this representation and warranty will be covered by your indemnification obligations under these TOU. The information, advice, facts, opinions or other Submissions in the Tool posted by third parties are those of the respective authors and do not necessarily reflect the views of Operator or any its employees, officers, directors, agents, suppliers, contractors or affiliated entities.
Operator will own and shall retain all rights, title and interests, including all intellectual property rights, in and to any and all Submissions. You hereby expressly assign all rights, title and interests in and to such Submissions to Operator free of charge. Operator may use such Submissions as it deems appropriate in its sole discretion without restriction. Notwithstanding, the foregoing, you will retain all rights, title and interest, in and to all copyrightable works of authorship submitted by you in connection with your use of this Tool or any Service (“Your Content”), and you grant Operator a non-exclusive, non-transferable, paid-up, royalty-free license to reproduce and use Your Content in order to provide the Services to you.
You acknowledge that Operator does not screen, edit or review Submissions in the normal course of its business prior to the appearance of those Submissions in the Tool. To the fullest extent permitted by applicable law, Operator disclaims all responsibility and liability for Submissions and for any losses, damages, or expenses resulting from their use and/or appearance in the Tool. Notwithstanding the foregoing, Operator reserves the right to monitor all Submissions and to remove without liability any Submissions that it considers, in its sole discretion, to be offensive, violate any applicable law, violate the right of any third party, or otherwise violate the terms of these TOU. If you discover Submissions in the Tool that are offensive, violate any applicable law, violate the right of any third party, or otherwise violate the terms of these TOU you may provide Operator with notice of such Submissions at “service@advisorlegacy.com”
You shall indemnify, defend and hold Operator, its licensors and information providers, and each such party's parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with your: (a) access to and/or use of the Tool; (b) Submissions, Data and other information provided to Operator;
(c) breach of these TOU; and/or (d) violation of any applicable law or right of a third party.
YOU ACKNOWLEDGE THAT: THE TOOL COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE TOOL MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; INFORMATION AND/OR SERVICES AT THE TOOL MAY BE OR BECOME OUT OF DATE AND OPERATOR MAKES NO COMMITMENT TO UPDATE SUCH INFORMATION OR SERVICES. OPERATOR ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS TOOL. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
YOUR USE OF THE TOOL IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM OPERATOR, OR THROUGH OR FROM THE TOOL, SHALL CREATE ANY REPRESENTATION OR WARRANTY BY OPERATOR.
THE TOOL IS PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE. WITHOUT LIMITING THE FOREGOING, NEITHER OPERATOR, ITS LICENSORS NOR ANY CONTENT PROVIDERS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE TOOL OR INFORMATION CONTAINED IN THE TOOL, OR THAT THE USE OF THE TOOL WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA.
ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WARRANTIES OF TITLE, USAGE OF TRADE, AND COURSE OF DEALING ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY OPERATOR, ITS LICENSORS AND CONTENT PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SUCH THAT THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL OPERATOR, ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE OR RESPONSIBLE TO YOU IN CONNECTION WITH THE TOOL, OR
YOUR USE THEREOF, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THEY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY, BUSINESS INTERRUPTIONS AND/OR BENEFIT OF THE BARGAIN DAMAGES; AND/OR (C) DIRECT DAMAGES IN AN AMOUNT GREATER THAN FIVE THOUSAND DOLLARS ($5,000 USD). ANY CLAIM RELATED TO THE TOOL MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE YOU KNEW, OR REASONABLY SHOULD HAVE KNOWN, OF THE EXISTENCE OF SUCH CLAIM AGAINST OPERATOR.
Operator controls and operates the Tool from its location(s) in the United States of America. Operator makes no representation that the Tool is appropriate or available for use in other locations. Those who choose to access the Tool do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are expressly prohibited from using or accessing the Tool from any location in which the Tool and/or Services would violate any law within that jurisdiction. Any diversion of the Tool and/or Services contrary to United States law is prohibited.
Software from the Tool may further be subject to United States export controls. No Software from the Tool may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using the Tool, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
These TOU, and your right to access and use the Tool, are effective until terminated by either you or Operator. You may terminate these TOU at any time by discontinuing use of the Tool and destroying all materials obtained from or through the Tool, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise. Notwithstanding the foregoing, if you subscribe to a Service, Operator may only terminate these TOU and your access to and use of the Tool if you fail to timely pay Operator for the Service and/or you breach these TOU or the terms applicable to the Service.
These TOU, and your access to and/or use of the Tool, may be terminated by Operator immediately without notice to you if in Operator's sole discretion you fail to comply with any term or provision of these TOU. Upon termination, you must destroy all materials obtained from or through the Tool, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
Subject to the terms of these TOU, all provisions of these TOU relating to ownership, limitations of liability, confidentiality, indemnification and other provisions which by their nature survive termination of these TOU shall survive termination of these TOU.
In order to ensure consistency in the interpretation and enforcement of these TOU and Operator's rights in the Tool, these TOU will be governed exclusively by Michigan law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation arising between you and Operator related, in any way, to the Tool and/or these TOU, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in the U.S. District Court for the Eastern District of Michigan, Southern Division, and/or the Circuit Court of the County of Washtenaw, Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be submitted to the following Operator Designated Agent:
Bodman Law
c/o Courtland Anderson Suite 500
201 W. Big Beaver Road Troy, Michigan 48084
To be effective, the notification must be a written communication that includes the following:
A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or multiple copyrighted works at a single online Tool are covered by a single notification, a representative list of such works at that Tool;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Operator may give notice to Operator's users by means of a general notice on this Tool, electronic mail to a user's e-mail address on Operator's records, or by written communication sent by first-class mail to a user's address on Operator's records.
If any provision of these TOU is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these TOU shall remain in full force and effect.
The failure of Operator to enforce any right or provision in these TOU shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Operator in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party's right or remedy will affect the other provisions of these TOU.
