This TERMS OF SERVICE AND SUBSCRIPTION AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date (as defined below), by and between TRACK THAT ADVISOR, LLC, an Arizona limited liability company (“Track That Advisor”), and the party agreeing to these terms and conditions by checking the box next to “I have read and agree to the Terms of Service” or by otherwise accessing, purchasing, enrolling in, subscribing to, or using any Services (defined below) offered through the Track That Advisor website located at www.trackthatadvisor.com (the “Site”) (“Licensee”). This Agreement is effective as of the earlier of the date Licensee checks such box or first accesses, purchases, enrolls in, subscribes to, or uses any Services (the “Effective Date”). Track That Advisor and Licensee are sometimes referred to herein collectively as the “Parties” and individually as a “Party.”

RECITALS

A. Track That Advisor has developed and operates the Site and makes available through the Site certain software-enabled services, memberships, subscriptions, resources, content, tools, educational materials, and related offerings for financial advisors and related businesses.

B. Licensee desires to access, purchase, enroll in, subscribe to, or use one or more of such offerings.

C. The Parties therefore agree as follows with the intent to be legally bound.

1. Services.

Licensee hereby purchases, enrolls in, subscribes to, accesses, or uses one or more Services and/or Subscription Plans offered by Track That Advisor. In connection therewith, Licensee agrees to perform its obligations under this Agreement, and Track That Advisor agrees to provide access to the applicable Services under the terms and subject to the conditions of this Agreement.

As used herein, the term “Services” includes, without limitation: (a) the Site, including all related software, functionality, features, interfaces, and source and object code; (b) all documentation related to the Site and any software applications, including all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing performance, functionality, operation, and use; (c) all content, resources, studies, videos, podcasts, templates, tools, reports, educational materials, and other materials provided on, through, or in connection with the Site; and (d) any membership, subscription, plan, tier, package, product, add-on, feature, service, offering, or access right made available by Track That Advisor now or in the future.

As used herein, “Subscription Plan” means the specific membership, subscription, service tier, package, or access plan selected by Licensee through the Site, an order page, checkout flow, invoice, order form, or other purchasing mechanism made available by Track That Advisor.

2. License Grant; Use of Services.

(a) License.

Subject to the terms and conditions of this Agreement and Licensee’s payment of all applicable Fees, Track That Advisor grants to Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license during the Term to access and use the applicable Services and Subscription Plan selected by Licensee solely for Licensee’s internal business use in connection with Licensee’s financial advisory business. Subject to the limited rights expressly granted hereunder, Track That Advisor reserves all right, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth in this Agreement.

(b) Licensee Responsibilities and Obligations.

1. Licensee represents and warrants that Licensee is a financial advisory firm or an employee, representative, or contractor of a financial advisory firm, unless Track That Advisor expressly permits otherwise.
2. Licensee is solely responsible for: (A) all activities occurring under Licensee’s account; (B) maintaining the confidentiality of Licensee’s account credentials and creating secure passwords; (C) the content of all documents and data submitted by Licensee to and through the Services; and (D) setting and modifying Licensee’s profile and preferences for the Services.
3. Licensee shall: (A) prevent unauthorized access to, or use of, the Services, and notify Track That Advisor promptly of any unauthorized use Licensee becomes aware of; and (B) comply with all applicable local, state, federal, and foreign laws, treaties, and regulations in using the Services, including laws governing privacy, data protection, communications, and transmission of technical or personal data.
4. Licensee shall use the Services solely for the purposes permitted pursuant to Section 2(a). Except as expressly set forth in this Agreement, Licensee shall not: (A) share, sell, license, distribute, post in any public forum, or otherwise make available to any third party the Services or any information or content contained in or accessed through the Services; (B) share Licensee’s account credentials with any third party; (C) use, or attempt to use, any content obtained through the Services for any commercial purpose outside the scope expressly permitted by this Agreement, or share such content with any third party; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) send or store viruses or other harmful or malicious code, files, scripts, agents, or programs; (G) interfere with or disrupt the integrity or performance of the Services or Track That Advisor’s systems, servers, or networks; or (H) attempt to gain unauthorized access to Track That Advisor’s systems, networks, infrastructure, or the Services.

(c) Ownership of the Services.

(i) The Services (including, without limitation, the software, technology, content, know-how, and documentation incorporated in and underlying the Service) is Track That Advisor’s sole and exclusive property. Subject to the limited rights expressly granted in this Agreement, Track That Advisor reserves all right, title and interest in and to the Services (including, without limitation, all software, technology, content, know-how, and documentation, as well as all derivative works thereof), including all related intellectual property and proprietary rights (including, without limitation, all copyrights, patent rights, trademark and service mark rights, trade secret rights, and moral rights). No rights are granted to Licensee other than as expressly described in this Agreement.

(ii) Track That Advisor is also the sole and exclusive owner of (A) all updates, improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the Services, (B) all documentation (including, without limitation, all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality,
operation and use of the Services), in whatever form recorded, and (C) all integrations, customizations, components, modules, workflows or other work product produced by Track That Advisor (whether alone or jointly with Licensee) for Licensee. Any of the items described in this Section 2(c)(ii) that are provided by Track That Advisor, in Track That Advisor’s sole discretion, to Licensee will be deemed to be included in the definition of the “Services” hereunder and available for use by Licensee under the terms and subject to the conditions in this Agreement.

(iii) As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other intellectual property that relates to, or is used to develop or improve, the Services. Any Intellectual Property (A) made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by Licensee, alone or in conjunction with others, during the Term and (B) disclosed to Track That Advisor (whether orally, in writing, electronically or otherwise) (“Service-Related IP”) will be deemed to have been made or developed by Licensee solely for Track That Advisor’s benefit, will be held in trust for Track That Advisor’s exclusive use and benefit, and will be Track That Advisor’s sole and exclusive property. Licensee will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party Service-Related IP. Licensee agrees to assign, and does hereby assign, to Track That Advisor all right, title, and interest in and to any Service-Related IP, including, without limitation, any “moral” rights which Licensee may have in the Service-Related IP under any copyright law or other similar law. Licensee also agrees, during the Term of this Agreement and at any time thereafter, at Track That Advisor’s request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for Service-Related IP in any country in the world. Without limiting the generality of the foregoing, Track That Advisor may, in its sole discretion, incorporate the Service-Related IP into the Services.

(iv) Licensee expressly agrees not to (and will not authorize any third party to): (A) license, sublicense, modify, copy, reproduce, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, create derivative works (including, without limitation, improvements, Proprietary and Confidential enhancements, revisions or modifications) based on, or infringe or violate, Track That Advisor’s intellectual property or other rights in, the Services; (B) decompile, disassemble, translate, reverse engineer or otherwise attempt to identify, reconstruct, derive or discover the source code (or the underlying ideas, user interface techniques, algorithms, structure or organization) of the Services; (C) remove or alter any identification, copyright, trademark, patent, or other proprietary notices, legends, symbols, or labels appearing in the Services; (D) directly or indirectly circumvent or violate the technical restrictions of the Services; (E) publicly disseminate performance information about or analysis of the Services; (F) access the Services in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the Services; (E) use the Services for any purpose other than as expressly authorized herein; (G) take any action that would cause any part of the Services to be placed in the public domain; (H) challenge the validity of the copyright or any other rights of Track That Advisor to the Services or title or interest thereto; or (I) represent to any third party that Licensee has any ownership or other interest in the Services.

(v) Provided that Track That Advisor does not personally identify Licensee, Licensee hereby grants Track That Advisor the right to use the data generated, in aggregated form where applicable, from Licensee’s use of the Services to maintain, support, and improve the Services, and for any other legal purpose.

(d) Modification of the Services.
Track That Advisor shall be entitled to modify, change, and upgrade the functionality, features, capabilities, content, and underlying technical infrastructure of the Services in its sole discretion.

3. Fees; Billing; Renewals.

(a) Fees. Licensee agrees to pay all fees, charges, and other amounts applicable to the Services and Subscription Plan selected by Licensee, including without limitation subscription fees, membership fees, recurring fees, one-time fees, setup fees, onboarding or implementation fees, add-on fees, usage-based fees, and any other charges presented to Licensee at the time of purchase, enrollment, upgrade, renewal, or modification through the Site, an order page, checkout page, invoice, order form, or other purchasing mechanism made available by Track That Advisor (collectively, the “Fees”). Unless otherwise expressly stated by Track That Advisor in writing, all Fees are non-refundable.

(b) Payment Authorization. If Licensee provides a payment method, Licensee authorizes Track That Advisor to charge such payment method for all Fees incurred in connection with Licensee’s Services and Subscription Plan, including initial charges, recurring renewal charges, upgrades, add-ons, usage-based charges, applicable taxes, late charges, and any other amounts due under this Agreement. Licensee agrees to keep its payment, billing, and contact information current and complete.

(c) Recurring Subscription Plans; Automatic Renewal. If Licensee enrolls in a recurring Subscription Plan, such Subscription Plan will automatically renew for successive renewal terms equal to the initial term or such other renewal term as disclosed to Licensee at the time of purchase, unless canceled in accordance with this Agreement or the applicable Subscription Plan terms. Licensee authorizes Track That Advisor to charge the payment method on file for the applicable Fees at the beginning of each renewal term at the then-current rates.

(d) Plan Changes. Licensee may be permitted to upgrade, downgrade, add, remove, or otherwise modify a Subscription Plan. Any such change may result in revised Fees, prorated charges, immediate charges, credits, revised access rights, revised renewal dates, or changes to future renewal pricing, as disclosed at the time of the change.

(e) Promotional and Trial Offers. Track That Advisor may, in its sole discretion, offer free trials, discounted pricing, promotional pricing, beta access, bundled offerings, or other special offers for certain Services or Subscription Plans. Unless expressly stated otherwise, Track That Advisor may modify or discontinue such offers at any time, and standard Fees will apply after the expiration of any promotional or trial period.

(f) Fee Changes. Track That Advisor reserves the right to change Fees for any Services or Subscription Plan at any time upon prior written or electronic notice to Licensee; provided, however, that changes to Fees for a recurring Subscription Plan will not take effect until the beginning of the next renewal term following such notice, unless otherwise permitted by applicable law and disclosed to Licensee.

(g) Late Fees; Taxes. Track That Advisor may charge interest on all overdue Fees at a rate equal to one and one-half percent (1.5%) per month or, if lower, the maximum rate permitted by applicable law, on the unpaid amount until paid in full. Licensee is solely responsible for, and will pay, all applicable sales, use, transaction privilege, gross receipts, goods and services, value-added, withholding, personal property, and similar taxes, levies, and duties, and any related interest and penalties, imposed by any governmental authority in connection with this Agreement or the Services, other than taxes based on Track That Advisor’s net income.

(h) Suspension. If Licensee fails to pay, when due, any Fees, late fees, taxes, or other charges due to Track That Advisor under this Agreement, Track That Advisor may, in its sole discretion and upon written or electronic notice to Licensee, suspend or terminate Licensee’s access to any or all Services. Licensee expressly acknowledges and agrees that Track That Advisor will have no liability to Licensee whatsoever if Track That Advisor elects to suspend or terminate access pursuant to this Section.

4. Term and Termination.

(a) Term. The term of this Agreement will commence on the Effective Date and continue until terminated in accordance with this Agreement. The initial term and any renewal term for a particular Subscription Plan will be as disclosed at the time of purchase or otherwise in the applicable Subscription Plan terms.

(b) Termination.

1. Upon Notice / Cancellation. Licensee may terminate this Agreement or cancel a Subscription Plan in accordance with the cancellation terms disclosed at the time of purchase or, if no such terms are disclosed, upon thirty (30) days’ prior written notice to Track That Advisor. Any cancellation will take effect at the end of the then-current billing term unless otherwise expressly stated by Track That Advisor. Except as expressly stated by Track That Advisor in writing or required by applicable law, no prepaid Fees will be refunded.
2. Default. If Licensee breaches any of its obligations under this Agreement, Track That Advisor may terminate this Agreement effective immediately upon written notice to Licensee.
3. Insolvency/Bankruptcy. If Licensee shall: (A) be unable to pay or admit in writing its inability to pay its debts as they mature; (B) make a general assignment for the benefit of creditors; (C) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (D) file a petition or be the subject of an involuntary petition in bankruptcy or for reorganization or for an arrangement pursuant to a bankruptcy act or insolvency which petition is not dismissed within ninety (90) days from such filing; or (E) be adjudicated as bankrupt or insolvent, then Track That Advisor may terminate this Agreement effective immediately upon written notice to Licensee.

(c) Effect of Termination.

(i) When this Agreement expires or is terminated, (A) Licensee will immediately stop using the Services, (B) Licensee’s license to the Services will immediately terminate, (C) Track That Advisor will immediately cease provision of the Services to the Licensee, and (D) Licensee will pay Track That Advisor, within three (3) days following the expiration date, all Fees and other charges which accrued prior to such expiration or termination date but remain unpaid. Licensee expressly acknowledges and agrees that Track That Advisor will have no liability to Licensee whatsoever with respect to the termination of Licensee’s use of the Services (even if Track That Advisor has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).

(ii) Licensee will also pay any damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and court costs) that arise out of or in connection with any breach of this Agreement occurring prior to or after the expiration or termination hereof.

5. Representations and Warranties.

Licensee represents and warrants to, and covenants with, Track That Advisor as follows:

(a) Licensee has the requisite power and authority to execute, deliver, and perform Licensee’s obligations under this Agreement.

(b) Licensee’s execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on Licensee’s part. This Agreement is valid and binding on Licensee, enforceable against Licensee in accordance with its terms.

(c) The execution, delivery and performance of this Agreement by Licensee do not and will not

(i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Licensee are bound, or

(ii) result in a violation of any Laws, judgment, injunction, decree or other restriction of any court or governmental authority to which Licensee is subject. (d) No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by Licensee to execute, deliver, and perform under this Agreement.

6. Disclaimers.

(a) TRACK THAT ADVISOR IS NOT PROVIDING ANY INVESTMENT, FINANCIAL, LEGAL, TAX, REGULATORY, OR COMPLIANCE ADVICE OF ANY KIND, AND IS NOT RESPONSIBLE FOR LICENSEE’S USE OF THE SERVICES OR ANY CONTENT, INFORMATION, OR MATERIALS PROVIDED THROUGH THE SERVICES, OR FOR ANY DECISIONS, ACTIONS, OR OMISSIONS MADE BY LICENSEE OR ANY THIRD PARTY BASED THEREON.

(b) THE SERVICE IS PROVIDED ON AN "AS IS" BASIS. TRACK THAT ADVISOR MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SERVICE OR ANY OF THE CONTENT, SERVICES, OR PRODUCTS PROVIDED IN CONNECTION THEREWITH. TRACK THAT ADVISOR DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (a) THE SERVICE WILL BE 100% SECURE OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (b) THE SERVICE WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS; (c) ANY DATA STORED USING THE SERVICE WILL BE ACCURATE, RELIABLE, OR SECURE; (d) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY TRACK THAT ADVISOR IN CONNECTION WITH THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TRACK THAT ADVISOR DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, AND WILL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD- PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED BY LICENSEE THROUGH THE USE OF THE SERVICE.

7. Limitation of Liability.

(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRACK THAT ADVISOR WILL NOT BE LIABLE TO LICENSEE, OR ANY OTHER THIRD PARTY FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (i) THE SERVICE,(ii) ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SERVICE, OR (ii) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR TRACK THAT ADVISOR’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY TRACK THAT ADVISOR HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF TRACK THAT ADVISOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES, TRACK THAT ADVISOR’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL SUCH LIABILITY EXCEED ONE HUNDRED DOLLARS ($100.00).

(b) LICENSEE EXPRESSLY AGREES THAT LICENSEE’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR TRACK THAT ADVISOR’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY TRACK THAT ADVISOR HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 4(b)(i) ABOVE. LICENSEE ACCEPTS THE RESTRICTIONS ON LICENSEE’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF LICENSEE’S BARGAIN WITH TRACK THAT ADVISOR, AND LICENSEE UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.

8. Indemnification.

Licensee will defend, indemnify and hold harmless Track That Advisor and Track That Advisor’s affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Licensee of Licensee’s representations, warranties, agreements and covenants set forth in this Agreement; or (b) Licensee’s use or misuse of the Service.

9. Miscellaneous.

(a) Audit. Track That Advisor reserves the right to audit Licensee’s compliance with this Agreement. Licensee will allow Track That Advisor and/or Track That Advisor’s representatives with access to the Licensee’s books, records, and personnel as is necessary to determine such compliance.

(b) Confidentiality.

(i) Except as provided in Section 9(b)(ii) below, during the Term of this Agreement and at all times thereafter, Licensee will (A) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information, and (B) use the Confidential Information solely for purpose of utilizing the Service during the Term pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party.

(ii) Licensee shall be permitted to disclose Confidential Information to the extent, but only to the extent, (A) Track That Advisor provides Track That Advisor’s express prior written consent to such disclosure; or (B) required by law; provided, that prior to making any disclosure of Confidential Information required by law (whether pursuant to a deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), Licensee must notify Track That Advisor of Licensee’s intent to make such disclosure, so that Track That Advisor may seek a protective order or other appropriate remedy and may participate with Licensee in determining the amount and type of Confidential Information, if any, which must be disclosed in order to comply with applicable law.

(iii) Promptly after the expiration or termination of this Agreement or upon Track That Advisor’s request at any time, Licensee shall return to Track That Advisor, or confirm in writing the destruction of, any Confidential Information which is in tangible form, and which is then in Licensee’s possession. As used herein, “Confidential Information” means all information concerning or related to Track That Advisor’s business, operations, financial condition or prospects (whether prepared by Track That Advisor, Track That Advisor’s advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (A) all information regarding Track That Advisor’s members, managers, officers, directors, employees, equity holders, customers, sales representatives, dealers, and licensees, in each case whether past, present or prospective; (B) all of Track That Advisor’s Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the Service and the Site); (C) the information and other content provided through the Service and the Site; (D) all of Track That Advisor’s financial statements, audit reports, budgets and business plans and forecasts; and (E) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for Licensee containing, based on, generated or derived from, in whole or in part, any Confidential Information.

(c) Electronic Signatures Effective. This Agreement is an electronic contract that sets out the legally binding terms of Licensee’s subscription to the Service. Licensee indicates its acceptance of this Agreement by checking the box next to “I have read and agree to the Terms of Service” in connection with its subscription to the Service. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By checking such box, Licensee agrees to the terms and conditions contained or referenced in this Agreement. When Licensee checks such box, Licensee also consents to have this Agreement provided to it in electronic form. Licensee is encouraged to print a copy of this Agreement for its records.

(d) Entire Agreement; Amendment.
This Agreement, together with any applicable order page, checkout flow, invoice, order form, Subscription Plan terms, and any Exhibits hereto, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written and oral agreements, representations, and communications between the Parties relating thereto. Track That Advisor may amend this Agreement from time to time by posting an updated version on the Site or otherwise providing notice to Licensee. Any such amendment will become effective as of the date stated in the updated Agreement or notice. Licensee’s continued access to or use of the Services after the effective date of such amendment constitutes Licensee’s acceptance of the amended Agreement. Notwithstanding the foregoing, with respect to recurring Subscription Plans, any material changes that adversely affect Licensee’s payment obligations or renewal terms will generally apply beginning with the next renewal term, unless otherwise permitted by applicable law.

(e) Equitable Relief. Licensee acknowledge and agrees that Track That Advisor would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 4(c), 9(a) and 9(b) are not performed by Licensee in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach. Accordingly, Licensee agrees that Track That Advisor will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity.

(f) Expenses. Except as may otherwise be specifically provided in this Agreement, each Party is responsible for any expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.

(g) Force Majeure. Track That Advisor shall not be liable to Licensee for any delay in or failure of Track That Advisor’s performance under this Agreement (including, without limitation, Track That Advisor’s failure to make available the Service or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, pandemic (including, without limitation, Covid-19), actions or impositions by Federal, state or local authorities, strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond Track That Advisor’s reasonable control (“Force Majeure”). Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, Track That Advisor shall be relieved from fulfilling Track That Advisor’s obligations under this Agreement during the period of such Force Majeure event.

(h) Governing Law; Consent to Jurisdiction. This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing Party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(i) Non-Disparagement. During the Term of this Agreement, Licensee agrees that Licensee will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage Track That Advisor or the Service.

(j) Notices. Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email. Notices to (A) Track That Advisor shall be addressed to Track That Advisor, LLC, Attn: Erica Pauly, Email: erica@trackthatadvisor.com, and (B) Licensee shall be addressed to the mailing address and email address on file with Track That Advisor, 1166 E Warner Rd., Gilbert, AZ 85296

(k) Severability. Any provision of this Agreement, which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

(l) Successors and Assigns. Licensee may not assign Licensee’s rights or delegate or cause to be assumed Licensee’s obligations hereunder without Track That Advisor’s prior written consent (which consent may be withheld in Track That Advisor’s sole and absolute consent). Any attempted assignment, delegation or assumption not in accordance with this Section 9(l) shall be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.

(m) Survival. The provisions of Sections 2(b)-(d), 3, 4(c), 5-9 and the portions of Exhibit B referenced therein will survive any termination or expiration of this Agreement.

(n) Waivers. The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy. The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.

(o) Order of Precedence.
If Licensee purchases a particular Subscription Plan through an order page, checkout flow, invoice, order form, or other purchase mechanism that includes plan-specific terms, including pricing, billing interval, renewal terms, usage limits, included features, or cancellation terms, those plan-specific terms will control in the event of a conflict with this Agreement, but only with respect to that Subscription Plan.

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EXHIBIT A

The Services may include, without limitation:

• written materials;
• pre-recorded videos;
• pre-recorded podcasts;
• proprietary studies and reports;
• templates, forms, guides, tools, educational materials, and related resources; and
• such other content, features, resources, benefits, and materials as Track That Advisor may make available from time to time.

Certain Services or Subscription Plans may include different levels of access, features, content, or benefits.

The Services do not include live interaction with the Track That Advisor team unless expressly stated in the applicable Subscription Plan.

Track That Advisor may add, change, suspend, or delete resources, content, features, or components of the Services at its sole discretion, with or without notice, subject to applicable law.

EXHIBIT B

Fees and Billing Terms

Fees, billing intervals, renewal terms, and payment terms applicable to Licensee will be those presented to Licensee at the time of purchase, enrollment, renewal, upgrade, downgrade, or modification of the applicable Subscription Plan through the Site, checkout flow, order page, invoice, order form, or other purchasing mechanism made available by Track That Advisor.

Track That Advisor may offer different Subscription Plans from time to time, including monthly, quarterly, annual, multi-year, promotional, trial, bundled, custom, or one-time purchase options.

If Licensee enrolls in a recurring Subscription Plan, Licensee agrees that such Subscription Plan will automatically renew unless canceled in accordance with this Agreement or the applicable Subscription Plan terms, and Licensee authorizes Track That Advisor to charge the payment method on file for all applicable renewal Fees at the then-current rates.

Unless otherwise expressly stated by Track That Advisor in writing, all Fees are non-refundable.