This E-Mail Service Agreement (“Agreement”) is entered into between the customer identified on the online order form (“Customer”) and Smarsh, Inc. (“Service Provider”) with a principal place of business located at 921 SW Washington Street, Suite 540, Portland, OR 97205 as of the date such Order Form was submitted by Customer by clicking “Continue” or “Submit” on the online order form (“the Effective Date”). By clicking “Continue” or “Submit” or otherwise submitting the online order form to Service Provider (“Order Form”), Customer agrees to the terms of this Agreement. Customer is an independent contractor representative of one of Advisor Group, Inc. (“AG”) subsidiaries, Royal Alliance Associates, FSC Securities Corporation or SagePoint Financial, Inc. AG has contracted with Service Provider to provide e-mail services (“Services”) to its representatives (“the AG Agreement”). The AG Agreement contains general terms and conditions pursuant to which Provider will provide Services to Representatives, as specified herein.

In consideration of the mutual promises set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by both Customer and Service Provider, the parties agree as follows:

1. SERVICES

Service Provider will provide to Customer the Services specified in the Order Form submitted by Customer to Service Provider. The price (“Fee(s)”) for each Service are those specified on the Order Form submitted by Customer. Service Provider will provide to Customer the technical support (“Technical Support”) for the Services acquired by Customer described on the Service Level Agreement attached as Exhibit B of the AG Agreement. Technical Support shall be provided to Customer for no additional Fee.

2. FEES

Customer shall pay the Fees agreed on the Order Form monthly in advance. Service Provider shall invoice Customer monthly and payment shall be due within thirty (30) days of receipt of Service Provider’s invoice. Amounts not paid when due shall bear interest at the rate of one percent (1%) per month, or the maximum rate permitted by law, whichever is less. Payment may also be made by credit card if elected within the Order Form. Where Customer authorizes Service Provider to accept credit card payments, Customer authorizing Service Provider to charge Customer’s credit card on a monthly basis for the Fees. Fees may only be increased as permitted by the terms of the AG Agreement. Service Provider shall notify Customer at least sixty (60) days prior to the date any permitted Fee increase becomes effective. Customer shall be responsible for payment of any sales or use tax associated with the provision of Services by Service Provider to Customer.

3. CUSTOMER OBLIGATIONS WITH RESPECT TO USE OF SERVICES.

Customer shall have the following obligations with respect to use of Services: (a) Use the Services for only lawful purposes and in accordance with applicable federal and state laws governing the use of Services; (b) Not use the Services for the purpose of sending bulk mail, other than in a manner specifically permitted by applicable law; (c) Not use the Services in a manner that is intended to intentionally disrupt the provision of Services to other customers of Service Provider; (d) Use reasonable security procedures in conjunction with use of the Services; (e) Reasonably cooperate with Service Provider in investigating any issues related to failure of Services, security, or such other issues as Service Provider may reasonably request assistance with investigation; (f) Keep billing contact information and credit card information, if payment is made by credit card, up to date; (g) Provide information to Service Provider as required by the terms of this Agreement; provided, however, all such data shall remain the sole and exclusive property of Customer.

4. TERM AND TERMINATION

This Agreement shall have the Term (“the Initial Term”) set forth in the Order Form submitted by Customer. If no Term is set forth in the Order Form, this Agreement shall be deemed to be a month to month agreement, terminable by either Customer or Service Provider upon thirty (30) days prior written notice to the other. Unless terminated by either party on not less than thirty (30) days prior written notice of termination to the other party in advance of the expiration of the Initial Term, this Agreement shall automatically renew for a period equal to the Initial Term (“the Renewal Terms”) until either party provides the other with not less than thirty (30) days written notice of termination in advance of the expiration of the current Renewal Term. Either party may terminate this Agreement in the event that the other party is in default on any material obligation contained in this Agreement and such default is not cured within thirty (30) days of receipt of the non-defaulting party’s written notice describing the nature of the default.

Additionally termination of this Agreement may occur: (a) If Customer breaches any of the obligations contained in Section 3(a)-(d) of this Agreement, and such breach is not cured within five (5) days of receipt of Service Provider’s written notice describing the nature of the breach; or (b) Immediately, upon termination of the between Smarsh and Advisor Group. Termination of this Agreement shall not act as a waiver of any breach of this Agreement or in any manner release a party from any liability for breach of this Agreement or limit any rights or remedies available to a party. The waiver by either party of a breach or default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach or default of the same or any other provision of this Agreement. Any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have pursuant to this Agreement or applicable law shall not operate as a waiver of any such right or remedy.

5. OBLIGATIONS UPON TERMINATION

Upon termination of this Agreement Customer shall cease using Services and pay Service Provider all amounts owing pursuant to this Agreement up to the date of termination. Upon termination of this Agreement, Service Provider shall provide such assistance as is reasonably requested by Customer to transition the Services to another service provider.

6. REPRESENTATIONS AND WARRANTIES OF SERVICE PROVIDER

Service Provider represents and warrants to Customer that: (a) Services will be provided in accordance with industry standards, including but not limited to the Service Level Agreement attached to the AG Agreement as Exhibit B, and the provisions of this Agreement;(b) In the performance of Services it will in all respects comply with applicable laws and regulations. However, nothing in the foregoing shall be construed as Service Provider’s assurance, representation, or warranty that Customer shall be compliant with any laws or regulations due to their use of the Services, and Service Provider shall have no liability whatsoever thereto; and (c) At all times during the Term of this Agreement, it will comply with the provisions of the Security Schedule attached to the AG Agreement as Exhibit D.

EXCEPT AS SET FORTH ABOVE IN THIS SECTION 6, OR AS OTHERWISE SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO OTHER WARRANTIES AND DISCLAIMS ANY OTHER RERPRESENTIONS AND WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTIBLITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. CONFIDENTIALITY

In performing Services pursuant to this Agreement Service Provider acknowledges that it will have access to Customer Confidential Information. Customer Confidential Information shall include, but not be limited to, information concerning Customer’s business operations, financial affairs, products, marketing, systems and technology, including third party products, customers and PII, personally identifiable information, as defined in the Information Security Schedule attached to the AG Agreement as Exhibit D.

Service Provider will hold Customer Confidential Information in strict confidence and shall not without the written consent of Customer, disclose Customer Confidential Information to third parties or use Customer Confidential Information for any purpose other than to perform its obligations under this Agreement. Service Provider shall disclose Customer Confidential Information only to those of its employees and agents who have a need to know in order for Service Provider to perform its obligations under this Agreement. In the event Service Provider learns or has reason to believe that any third party has unauthorized access to Customer Confidential Information or that the provisions of this Agreement have been violated or are likely to be violated, Service Provider shall immediately notify Customer and shall cooperate in seeking injunctive or other appropriate relief. Service Provider shall be responsible for the portion of any breach of the provisions of this Section 7by its employees or agents.

Except with respect to PII, Customer Confidential Information shall not include information which can be demonstrated by Service Provider: (i) to have been rightfully in Service Provider’s possession prior to receipt from Customer, (ii) to have been in the public domain prior to receipt from Customer; (iii) to have become part of the public domain after receipt from Customer by means other than a breach of this Agreement; or (iv) to have been provided by a third party after receipt from Customer who is under no obligation to maintain such information in confidence. Additionally, it shall not be a breach of this Agreement if Service Provider is legally compelled to make a disclosure of Customer Confidential Information in response to a subpoena or other court or governmental order, provided Service Provider provides as much advance notice to Customer as possible of such compelled disclosure and shall reasonably cooperate with Customer, at Customer’s expense, in any efforts to prevent or limit the scope of such disclosure of Customer Confidential Information.

With Respect to PII pursuant to the provisions of the Graham-Leach Bliley Act of 1999 and it implementing regulations, as the same may be from time to time amended, California Civil Code Section 1798.80, and any other applicable federal, state or local law addressing the protection of PII from wrongful disclosure (“Privacy Laws”) Customer is required to obtain the agreement of Service Provider with respect to protection from disclosure and use of PII. Service Provider shall protect and keep confidential any and all PII. At any time, upon Customer’s request, Service Provider shall return all PII in its possession to Customer.

With respect to PII Service Provider agrees to: (a) Comply with applicable Privacy Laws and the provisions of the Information Security Schedule attached to the AG Agreement as Exhibit D; (b) Except for Service Provider’s performance of the Services, described in Section 1(c) of the AG Agreement, not disclose PII to any other entity, including it subcontractors or service providers, without the prior written consent of Customer and an agreement in writing from such entity to use or disclose PII only to the extent necessary to carry out Service Provider’s obligations pursuant to this Agreement and in all other respects to maintain such PII in the strictest of confidence; (c) To require entities approved in accordance with subsection (b) above to maintain adequate administrative, technical and physical security safeguards, which may include adherence to the provisions of the Information Security Schedule attached to the AG Agreement as Exhibit D, if so requested by Customer, to ensure the security and confidentiality of PII; (d) Notify Customer immediately in writing when it becomes aware of any breach of its security safeguards or has reason to believe that PII may have been subject to unauthorized disclosure or use. Such notice shall include: (i) the nature of the unauthorized disclosure or use; (ii) the specific PII involved in the disclosure or use, or expected disclosure or use; (iii) the identity, if known, of the persons or entities who received or are anticipated to receive such PII; and (iv) the corrective action that has already been taken to prevent continuing unauthorized disclosure or use, or to mitigate the harm caused as a result of the unauthorized disclosure or use; and (e) Take reasonable measures, at its expense, or reimburse Customer for reasonable expenses incurred by Customer, including but not limited to provision of notice to affected third parties, to mitigate the harm done as a result of an unauthorized disclosure by Service Provider of PII in breach of this Agreement.

Service Provider acknowledges and agrees that a breach of the provisions of this Section 9 will cause Customer immediate and irreparable harm, the amount of which will be difficult to ascertain making a remedy at law or damages inadequate. Therefore, in the event of a breach or threatened breach of this Section 7, Customer shall be entitled to immediately seek injunctive or other equitable relief in a court of applicable jurisdiction without the necessity of posting a bond. This right shall be in addition to any other remedy available to Customer pursuant to this Agreement or applicable law.

8. INDEMNIFICATION BY SERVICE PROVIDER

Service Provider shall indemnify, defend, and hold harmless Customer, its officers, directors, employees, and agents from and against all claims, losses, damages, liabilities and expenses, including reasonable attorney’s fees, incurred arising from third party claims that Services infringe upon or violate such third party’s patent, copyright, trade secret or other property right. If Customer is enjoined from using the Services, Service Provider will, at its option and expense, either (i) procure for Customer the right to continue to use the Services, or (ii) replace or modify the Services so that they are no longer infringing without material change to functionality or performance.

Service Provider’s obligation for indemnification shall be predicated upon Customer (a) providing prompt written notice of the claim to Service Provider; provided, however, Service Provider shall not be relieved of its obligation for indemnification as the result of Customer’s failure to provide such notice unless Service Provider is actually prejudiced in defending such claim as a result of Customer’s failure to provide notice; (b) Service Provider is permitted to control the defense and settlement of the claim; and (c) Customer provides reasonable assistance, as requested by and at the expense of Service Provider, in the defense and settlement of the claim.

9. INDEMNIFICATION BY CUSTOMER

Customer agrees to indemnify, defend, and hold Service Provider harmless from and against all claims, losses, damages, liabilities, and expenses, including reasonable attorney’s fees, incurred arising from a third party claim which is the result of Customer’s breach of Customer’s obligations contained in Sections 3(a)-(d) of this Agreement.

Customer agrees to indemnify, defend, and hold Service Provider harmless from and against all claims, losses, damages,
Customer’s obligation for indemnification shall be predicated upon Service Provider (a) providing prompt written notice of the claim to Customer; provided, however, Customer shall not be relieved of its obligation for indemnification as the result of Service Provider’s failure to provide such notice unless Customer is actually prejudiced in defending such claim as a result of Service Provider’s failure to provide notice; (b) Customer is permitted to control the defense and settlement of the claim; and (c) Service Provider provides reasonable assistance, as requested by and at the expense of Customer, in the defense and settlement of the claim.

10. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT OF A BREACH OF SECTION 7 (CONFIDENTIALITY), A BREACH OF THE SECURITY SCHEDULE (ATTACHED TO THE AG AGREEMENT AS EXHIBIT D), OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, ITS AGENTS OR EMPLOYEES SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION OR ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBLITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY. EXCEPT WITH RESPECT TO A BREACH OF SECTION 7 (CONFIDENTIALITY), A BREACH OF THE SECURITY SCHEDULE (ATTACHED TO THE AG AGREEMENT AS EXHIBIT D), A PARTY’S OBLIGATIONS FOR INDEMNIFICATION PURSUANT TO SECTION 8 (INDEMNIFICATION BY SERVICE PROVIDER), SECTION 9 (INDEMNIFICATION BY CUSTOMER), OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, ITS AGENTS OR EMPLOYEES SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM, LOSS, OR LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID, OR AGREED TO BE PAID, TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.

11. RELATIONSHIP OF AG TO THE PARTIES

Both Service Provider and Customer acknowledge that AG is not a party to this Agreement and is not responsible for the performance of either party pursuant to this Agreement. AG has entered into the AG Agreement with Service Provider, and agreements of a similar nature with other service providers, to ensure that certain regulatory requirements with respect to the archiving of e-mails of Representatives are complied with. Customer has selected Service Provider from several alternative service providers with whom AG has contracted, and has made the selection based upon Customer’s independent evaluation and judgment as to which service provider will best meet Customer’s particular needs. Customer acknowledges that AG has not recommended or compelled Customer to contract with Service Provider. IT IS AGREED BY SERVICE PROVIDER AND CUSTOMER THAT AG SHALL HAVE NO LIABILITY OF ANY TYPE TO EITHER CUSTOMER OR SERVICE PROVIDER WITH RESPECT TO THIS AGREEMENT, AND CUSTOMER AND SERVICE PROVIDER MAY ONLY ENFORCE THE PROVISIONS OF THIS AGREEMENT AGAINST ONE ANOTHER. ADDITIONALLY, SERVICE PROVIDER AGREES AND ACKNOWLEDGES THAT NOTHING CONTAINED IN THIS AGREEMENT LIMITS THE RIGHTS OF AG PURSUANT TO THE AG AGREEMENT.

12. REFERENCES TO THE AG AGREEMENT

When reference is made to a provision of the AG agreement in this Agreement, the applicable provision of the AG agreement shall be deemed to be incorporated into this Agreement by reference as if set forth in full herein. References to the AG Agreement are for convenience only, and do not make AG a party to this Agreement or in any manner conflict with Section 11 of this Agreement.

13. ASSIGNMENT

Neither party may assign this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

14. NOTICES

Notices shall be in writing and either delivered personally or by nationally recognized express courier service to the address of the parties set forth in the first paragraph of this Agreement. Any notice shall be deemed properly given when delivered personally or two (2) days after deposit with a nationally recognized express courier service, with written confirmation of receipt.

A party may change the address to which notices are to be delivered by following the procedure set forth above.

15. GOVERNING LAW

This Agreement shall be construed, governed, and enforced in accordance with the laws of the State of California without giving effect to any choice of law rules that would cause the laws of another jurisdiction to be applied to the rights and obligations of the parties under this Agreement.

16. COMPLETE AGREEMENT

This Agreement, and the Exhibits attached hereto which are incorporated by reference, is the final and complete agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous representations, proposals, negotiations, and agreements, whether written or oral, between the parties relating to the subject matter hereof. No modification of this Agreement shall be effective unless in writing and signed by both parties.

17. SURVIVAL

Sections 5, 7, 8, 9, 10, 11, 15 and 16 shall survive expiration or termination of this Agreement.

Smarsh
851 SW 6th Avenue
Portland, Oregon 97204
1–866-SMARSH-1
legal@smarsh.com