Terms & Conditions (“agent agreement”)
Our business is to provide video-based sales training and back-office support to life insurance agents (Team Members) to allow them to be more productive and successful in their sales efforts. We do this by providing you, a Team Member, with online training and support, along with the opportunity to participate in our revenue sharing model, through our subscription levels, which are detailed [below/on the OmniBay Financial website].
1.1. Agent Agreement
You agree that by clicking “Subscribe”, “Join”, “Join Today!”, “Submit”, or simply by accessing or using our Services (described below), you are agreeing to enter into a legally binding contract with OmniBay Financial Group, Inc. If you do not agree to this contract do not click “Subscribe”, “Submit”, and/or “Join Today!” and do not access or otherwise use any of our Services. You may terminate this Agent Agreement at any time by closing your account AND no longer accessing or using our Services. By simply not accessing our services, that does not cancel your membership. Details about termination of this Agent Agreement are provided below.
You are entering into this Agent Agreement with OmniBay Financial Group, Inc. (“OmniBay Financial” or “we” and “us”).
By entering this Agreement, you acknowledge that we may use third parties to assist us in providing the Services, including training, facilitating lead sales, and aggregating information.
Subject to the terms and conditions of this Agent Agreement and payment of the fees set forth in Section 1.4 below, OmniBay Financial will provide a variety of services via the OmniBay Financial Site for the benefit of Team Members, which services may include, but are not limited to, sales training and back office support (the “Services”). We reserve the right to add, remove, modify or otherwise alter the Services at any time and from time-to-time in our sole discretion, and nothing shall be construed as a guarantee or warranty of any Services.
1.3. Subscription Levels
Managing Senior Agent
Executive Senior Agent
2.1. Your Account; Confidentiality
You agree to keep your password secret and confidential.
You will not share an account with anyone else. You will comply with the terms of this Agent Agreement and you will comply with all applicable laws and regulations, including without limitation those governing the sale of insurance. You are responsible for anything that happens through your account unless you close it or report misuse. You will hold your account information in strict confidence you will be solely responsible for any disclosures of your account information or use of your account information by any unauthorized third party. We may suspend or disable any account if we believe that the security with respect to that account has been or will be compromised. We are not responsible for any unauthorized access to your account or any disclosure of your data or information or the breach of privacy or security with respect to any your account, data or information.
You will honor your payment obligations and you allow us to store your payment information. You understand that there may be fees and taxes that are added to our prices. Failure to pay our fees will result in the termination of the Services and of your account.
We don’t offer refunds.
We may store and continue billing your payment method (e.g. credit card) even after it has expired, to avoid interruptions in your Services.
When you purchase a subscription, your payment method automatically be billed to you every 30 days based on when you enroll in the program for the fees and taxes applicable to that month. If a payment fails to process completely, you may be billed on other days at the companies sole discretion. To avoid future charges (not including past due charges and/or late fees), cancel before the next payment due date. We may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. Cancelling does not terminate any past due balances, late fees, and/or collections fees.
You understand that when you purchase a subscription, the price of that subscription may increase from month to month depending on your Team Member Level or Rank and/or at the sole discretion of OmniBy Financial. Fees for each level are
Associate Producer – $84
Senior Agent – $84
Managing Senior Agent – $84
Executive Senior Agent – $0
You can get a copy of your invoice through your account settings.
If you do not pay the fee on the due date, your subscription will be terminated, and any unpaid commissions that have accrued to you will be forfeited. If we receive payment from you more than three (3) days after the date your payment is due, we may impose a late fee of $50.00. If we have not received payment from you more than 30 days after the date your payment is due, we may assess an additional 5% late fee on the unpaid amount. If you have not paid any payment obligations for more than 60 days, we may refer collection of the unpaid amount to an attorney or collections agency. If your unpaid payment obligations are referred to an attorney or collections agency, you hereby agree to pay all reasonable attorney’s fees or collections agency fees.
You authorize OmniBay Financial and/or its representatives to debit / charge (the partial and/or full amount of any past due fee) using any billing method provided to use by you, including but not limited to credit card, bank account / ACA, or PayPal – including but not limited to accounts provided by you to any of our staff, systems, and/or insurance carriers for commissions and/or revenue share payments.
You hereby waive any and all of its rights to interpose any claims, deductions, setoffs or counterclaims of any nature in any dispute with respect to this Agreement. Any claims, deductions, setoffs or counterclaims must be brought as a separate action subject to the choice of law, forum selection and jurisdictional waiver provisions of this Agreement.
You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of this Section 2.2.
2.3. Notices and Messages
You allow us to communicate with you through our website, using the contact information you have provided. If your contact information is out of date, you may miss out on important notices.
3. Intellectual Property; Data Use; Publicity
3.1. Intellectual Property Rights
OmniBay Financial reserves all of its intellectual property rights in the Services. Using the Services does not give you any ownership in our Services or the content or information made available through our Services. Trademarks and logos used in connection with the Services are the property of OmniBay Financial.
While you have an active subscription with OmniBay Financial, and subject to the terms and conditions of this Agreement, OmniBay Financial grants you a limited, revocable, non-transferrable, non-sublicensable and non-exclusive right to the limited access and use of the Services and the OmniBay Financial Site.
OmniBay Financial may provide you access to public contact information of insurance producers who have become licensed. This information is aggregated by a third party, and we are providing this data to you at no charge. However, your subscription fee helps to cover the cost of the software platform through which you will access this data.
3.3. Publicity and Media Release
In partial consideration for your use of the Services and the Site, you grant us the universal right and permission to use your name, image, likeness, voice, views, comments and testimonials (collectively, “Materials”), and to use and include any and all such Materials in, and in connection with any and all marketing, publicity and/or social media assets and/or materials related to OmniBay Financial (collectively, the “Works”) and any and all allied, ancillary, subsequent and derivative rights associated therewith.
You acknowledge and agree that OmniBay Financial shall be the sole and exclusive owner of all rights (including without limitation copyright) in and to the Works and the Materials, and that OmniBay Financial shall have the right, in perpetuity and valid throughout the universe, to distribute, license, exhibit and otherwise exploit the Works and/or Materials, and excerpts therefrom, throughout the world in any and all media and formats now known or hereafter devised. You hereby waive any moral rights of inspection or approval of your appearance or the uses to which such appearance may be put, and you agree that you will have no right to review or approve the Materials or the Works or any related advertising, and that we will possess sole creative discretion regarding the use of your name and likeness in connection therewith. OmniBay Financial may juxtapose materials portraying you with other materials in its sole discretion.
4. Disclaimer and Limit of Liability
4.1. No Warranty
We disclaim legal liability for the quality, safety, or reliability of our Services.
TO THE EXTENT ALLOWED UNDER LAW, OmniBay Financial AND ITS AFFILIATES (AND THOSE THAT OmniBay Financial WORKS WITH TO PROVIDE THE SERVICES) (A) DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS (E.G. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NONINFRINGEMENT); (B) DO NOT GUARANTEE THAT THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS, AND (C) PROVIDE THE SERVICE (INCLUDING CONTENT AND INFORMATION) ON AN “AS IS” AND “AS AVAILABLE” BASIS.
4.2. Exclusion of Liability
TO THE EXTENT PERMITTED UNDER LAW, OmniBay Financial AND ITS AFFILIATES (AND THOSE THAT OmniBay Financial WORKS WITH TO PROVIDE THE SERVICES) SHALL NOT BE LIABLE TO YOU OR OTHERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, RELATED TO THE SERVICES. IN NO EVENT SHALL THE LIABILITY OF OmniBay Financial AND ITS AFFILIATES (AND THOSE THAT OmniBay Financial WORKS WITH TO PROVIDE THE SERVICES) EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, AN AMOUNT THAT IS THE LESSER OF (A) FIVE TIMES THE MOST RECENT MONTHLY FEE THAT YOU PAID FOR OUR SERVICES, OR (B) $1,000.
THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND OmniBay Financial AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G. WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) EVEN IF OmniBay Financial OR ITS AFFILIATES HAS BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
SOME LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.
You will defend, indemnify and hold harmless OmniBay Financial and its affiliates, directors, officers, employees, independent contractors, consultants, attorneys and agents from any and all claims, actions, proceedings, losses, damages, liabilities, fees and expenses, including reasonable attorneys’ fees and amounts awarded by a court or arbitrator or mediator or paid in settlement, arising from or related to (a) any services provided by you to a customer of yours resulting from your use of the Services and the OmniBay Financial site, (b) any breach of this Agreement, or (c) any act or omission of you or anyone acting on behalf of or for you.
We can each end this Agreement anytime we want by providing written notice to the other party.
Both you and OmniBay Financial may terminate this Agreement at any time with notice to the other. On termination, you lose the right to access or use the Services. The following shall survive termination:
· Sections 2.2, 4, 6 and 8 of this Agreement;
· Any amounts owed by either party prior to termination remain owed after termination.
6. Governing Law and Dispute Resolution
You and OmniBay Financial agree that the laws of the State of California, U.S.A., excluding its conflict of laws rules, shall exclusively govern any dispute relating to this Agreement and/or the Services.
You and we agree to make good faith efforts to resolve any dispute informally. Only when those efforts fail may a dispute be submitted to final and binding arbitration under the following terms:
If a dispute remains unresolved, you and we agree to submit any claim as defined herein to final and binding arbitration rather than resorting to any administrative and/or judicial bodies. This agreement to arbitrate includes, but is not limited to, any claim that could be asserted in court or before an administrative agency or claims for which either of us has an alleged cause of action against the other, including but not limited to any dispute concerning the arbitrability of any such controversy or claim.
You agree to waive the right to litigate in court or in arbitration any claim or dispute as a class or collective action, either as a member of a class or as a representative, or to act as a private attorney general. You agree not to join with any other individual in any litigation in court or arbitration. You and we acknowledge that this class action waiver is material and essential to the arbitration of any disputes between us and is non-severable from our agreement to arbitrate. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL A CLASS ACTION BE ARBITRATED.
Any arbitration conducted under this Agreement shall follow the JAMS Commercial Arbitration Rules (the “Rules”). Any arbitration shall have one arbitrator selected consistent with the Rules. The arbitrator shall apply the governing substantive law of California and/or federal law. The aggrieved party must give written notice of any claim consistent with the Rules, and provide to the other party. The arbitration shall take place in Los Angeles County. The arbitrator shall render a reasoned award (with findings of fact) within thirty (30) days after the close of the arbitration hearing. The JAMS administrative fees and the arbitrator’s fees and expenses will be shared equally (50/50) by you and OmniBay Financial. Judgment upon the award shall be entered in any court having jurisdiction. The prevailing party in the proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs it incurred in conducting the proceeding, including the foregoing arbitration fees and reasonable attorneys’ fees and expenses.
7. General Terms
If a court with authority over this Agreement determines that any part of it is unenforceable, you and we agree that the court should modify the terms to make that part enforceable while still achieving its intent. If the court cannot do that, you and we agree to ask the court to remove that unenforceable part and still enforce the rest of this Agreement.
This Agreement (together with an additional independent contractor agreement that we will provide if you are promoted to a higher rank and you accept that promotion) is the only agreement between us regarding the Services and supersedes all prior agreements for the Services.
If we don’t act to enforce a breach of this Agreement, that does not mean that OmniBay Financial has waived its right to enforce this Agreement. You may not assign or transfer this Agreement (or your membership or use of Services) to anyone without our consent. However, you agree that OmniBay Financial may assign this Agreement to its affiliates or a third party that buys it, without your consent. There are no third-party beneficiaries to this Agreement.
You agree that the only way to provide us legal notice is at the addresses provided in Section 9.
Commissions will only be paid to team members who are Active on the date of the respective payment, and will only be paid based on your downline on the date of the commission payment.
8. OmniBay Financial “Dos and Don’ts”
You agree that you will:
a. Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements;
b. Provide accurate information to us and keep it updated;
c. Use the Services in a professional manner;
e. Allow us to disclose your information to law enforcement agencies, to the extent we are legally required to do so.
You agree that you will not:
a. Use or attempt to use another’s account;
b. Override any security feature;
c. Copy, use, disclose or distribute any information obtained from the Services, whether directly or through third parties, without the consent of OmniBay Financial;
d. Disclose information that you do not have permission to disclose (such as confidential information of others);
e. Violate the intellectual property rights of others, including copyrights, patents, trademarks, trade secrets, or other proprietary rights.
f. Violate the intellectual property or other rights of OmniBay Financial, including, without limitation, (i) copying or distributing our training videos or other materials or (ii) copying or distributing our technology, unless it is released under open source licenses; (iii) using the word “OmniBay Financial” or our logos in any business name, email, or URL;
g. Imply or state that you are affiliated with or endorsed by OmniBay Financial without our express consent;
h. Rent, lease, loan, trade, sell/re-sell or otherwise monetize the Services or related data or access to the same, without OmniBay Financial’s consent; or
i. Make any disparaging statements to any third party, including without limitation current, former or prospective Team Members, or any media, about OmniBay Financial or its officers, directors, employees, products or Services; provided, however, that nothing herein shall preclude you from engaging in conduct protected by applicable law and from testifying as required by lawful subpoena or other legal process, or making good faith reports to governing regulatory bodies or authorities.
9. Notice Information
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing. Notices from you to us shall be sent to the following address:
OmniBay Financial Group, Inc.
1801 Century Park East
Los Angeles, CA 90067
Notices from us to you will be sent to the address you provide in your profile.
All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). A Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.