Peter Montoya - Marketing Library.net

MarketingLibrary.net by Peter Montoya, Inc
Complete Client Communication Library & Online Review System For Financial Advisors
(866) 254-6035
MARKETING LIBRARY USER AGREEMENT

Thank you for purchasing a subscription (a "Subscription") to the MarketingLibrary.net website (the "Site") as well as the Marketing Library internet-based software application offered by Peter Montoya Inc. (the "Application") for use in your capacity as a financial products and services sales representative for such Broker/Dealer as you identify in your Subscription application ("Broker/Dealer"). Please read this agreement carefully before using the Site or the Application. This User Agreement (this "Agreement") governs your use of the Site and the Application. By clicking the "I Agree" button below, or by accessing or using the Site or Application or any part thereof, you are acknowledging that you have read and understand this Agreement and that you agree to be bound by its terms. Additionally, your continued use of the Application will indicate your ongoing consent to be bound by the terms and conditions set forth below. This Agreement is a binding legal agreement between you (either an individual or legal entity) and Peter Montoya Inc. If you do not agree to all of the terms in this Agreement, you should not click the "I Agree" button below, you should not access or use the Site or Application or any part thereof.

DEFINITIONS

The following definitions shall apply to the specified terms throughout this Agreement as well as within the Site and Application:

"Message" - this term shall mean and refer to any and all marketing and business management materials for financial products and/or services obtained through the Site and Application, whether originally submitted by you for review and editing, obtained from the Site and Application's existing library of materials, provided by your Broker/Dealer through the Site and Application, or provided by a Third Party Provider through the Site and Application. Said marketing materials include, but are not limited to, postcards, e-mails, letter, flyers, invitations, presentations, brochures, contracts, facsimiles, newsletters, articles, seminars, surveys, website content, stationary, and prospectuses.

"Approved" - this term shall mean and refer to Messages that have been reviewed and approved by your Broker/Dealer for use by you and other Registered Representatives properly authorized to use the Site and Application. A Message's designation as "Approved" does not relieve you from any liability arising from the content or representations of such Message. Neither Peter Montoya Inc. nor Broker/Dealer shall be liable for such content or representations and neither Peter Montoya Inc. nor Broker/Dealer agrees to indemnify you against liability arising from your use of a Message designated as "Approved." 

"Approved With Changes" - this term shall apply only to those Messages submitted by you to Peter Montoya Inc. and/or your Broker/Dealer for review and editing through the Site and Application. This term shall mean and refer to Messages approved for publication as long as certain changes specified by the compliance officer are incorporated. A Message's designation as "Approved With Changes" does not relieve you from any liability arising from the content or representations of such Message. Neither Peter Montoya Inc. nor Broker/Dealer shall be liable for such content or representations and neither Peter Montoya Inc. nor Broker/Dealer agrees to indemnify you against liability arising from your use of a Message designated as "Approved With Changes."

"Broker/Dealer Library" - this term shall mean and refer to those Messages reserved for access by you and other Registered Representatives.

"Declined" - this term shall mean and refer to Messages that have been rejected by Peter Montoya Inc. or your Broker/Dealer and may not be published by you or anyone else. You shall be solely responsible for any liability arising from your use of any Message designated as "Declined."

"Exclusive Option" - this term shall be used exclusively in connection with Messages submitted by you to Peter Montoya Inc. for compliance review and editing. When you elect to submit a Message to Peter Montoya Inc. for review and editing using the Exclusive Option, said Message shall remain your sole and exclusive property. Accordingly, other users of the Site and Application, including other representatives of your Broker/Dealer will not be provided access to Messages submitted under the Exclusive Option.

"Non-Exclusive Option" - this term shall be used exclusively in connection with Messages submitted by you to Peter Montoya Inc. for compliance review and editing. When you elect to submit a Message to Peter Montoya Inc. for review and editing using the Non-Exclusive Option, said Message becomes the sole and exclusive property of Peter Montoya Inc. and may be used or exploited in any manner at Peter Montoya Inc.'s sole and absolute discretion. Accordingly, such Messages may be changed as deemed necessary by Peter Montoya Inc. and other users of the Site and Application, including without limitation other representatives of Broker/Dealer, may be provided access and permission to use such Messages at Peter Montoya Inc.'s sole and absolute discretion.

"Not Approved" - this term shall mean and refer to Messages that have not been reviewed by your Broker/Dealer and may not be published by you or anyone else. You shall be solely responsible for any liability arising from your use of any Message designated as "Not Approved."

"Registered Representatives" - this term shall mean and refer to any sales representatives affiliated with Broker/Dealer who has been individually authorized to access and use the Site and Application through the purchase of an individual user subscription for the Site and Application and has entered into the standard "Marketing Library User Agreement."

"Third Party Provider" - this term shall mean and refer to any provider of Messages that is not you, Peter Montoya Inc., or your Broker/Dealer. Such Third Party Providers may include financial product sponsors or independent marketing material content providers.

"Withdrawn" - this term shall mean and refer to Messages submitted by you to Peter Montoya Inc. and/or your Broker/Dealer for review and editing through the Site and Application where such review and editing is cancelled at your request. You shall be solely responsible for any liability arising from your use of any Message designated as "Withdrawn."

Additional definitions for terms used within the Site and Application may, from time to time, be provided by Peter Montoya Inc. in its sole and absolute discretion and posted on the Site.

TERMS AND CONDITIONS

1. 	THE SITE AND APPLICATION. Through use of the Site and Application, you may obtain Messages for use in your capacity as a financial products and services sales representative. Messages may be obtained via the Site and Application as follows: (1) by selecting Messages posted in the general MarketingLibrary.net Message library (the "Library"); (2) if your Broker/Dealer has entered into a separate agreement with Peter Montoya Inc. and is specifically identified under the heading "Our Broker Dealers" on the front page of the Site, by submitting a message for review and editing by your Broker/Dealer or selecting Messages from the Broker/Dealer Sub/Site's Message library ; or (3) by submitting a message to Peter Montoya Inc. for review and editing under either the Non-Exclusive or Exclusive Options. Please note that charges in addition to the Subscription Fees specified below may be incurred if you submit a Message for review and editing under either the Non-Exclusive or Exclusive Options or if you elect to use certain Third Party Provider Messages. The price for use of such services or materials shall be indicated on the Site. Such prices are subject to change from time to time at the sole and absolute discretion of Peter Montoya Inc. or the applicable Third Party Provider, as the case may be. 

	A. 	Messages Available on Broker/Dealer Library. To the extent that your Broker/Dealer has entered into a separate agreement with Peter Montoya Inc. and is specifically identified under the heading "Our Broker Dealers" on the front page of the Site, only those Messages to which your Broker/Dealer has consented will be available to you via the Broker/Dealer Library. Furthermore, your may control which Messages you have access to by properly categorizing you as an advisory, investment, or brokerage sales representative, as the case may be. Your Broker/Dealer bears all responsibility and liability associated with your proper categorization. Furthermore, your Broker/Dealer bears all responsibility and liability associated with the approval of specific Messages to be made available to Registered Representatives in your category. Accordingly, any and all questions or disputes regarding your individual categorization should be directed to your Broker/Dealer.

2. 	RESTRICTIONS ON USE. The entire Site and Application, including but not limited to all pages within the website and any material made available for download, including but not limited to all Messages not submitted under the Exclusive Option, are the property of Peter Montoya Inc., its affiliates, and/or a Third Party Provider. The Site and Application and all aspects thereof are protected by federal and international copyright and trademark laws. No portion of the materials comprising the Application or any Messages may be reprinted, republished, modified, or distributed in any form without the express written permission of Peter Montoya Inc. and/or the applicable Third Party Provider. The Site and Application and all Messages available through the Site and Application are for your own personal use or the internal use of your business as an individual sales representative. You shall keep intact any proprietary notices, including copyright notices, contained on any downloaded materials and shall comply with any applicable end user license agreements. Any rights not expressly granted by these Terms and Conditions or any applicable end user license agreements are reserved by Peter Montoya Inc.
3. 	SUBSCRIPTIONS.

A. 	Term. The Site and Application are available only through the purchase of a Subscription. Your Subscription shall commence immediately upon Peter Montoya Inc.'s acceptance of your order to purchase that Subscription, which may precede the date on which you begin using the Site or Application. The initial term of your Subscription (the "Initial Term") shall be one (1) year in length.

B. 	Automatic Renewal. Upon completion of the Initial Term, your Subscription will renew automatically on a month-to-month basis (each, a "Renewal Month") unless you provide Peter Montoya Inc. with notice of termination at least thirty (30) days prior to the end of the Initial Term. Any such notice must be provided to Peter Montoya Inc. by speaking with a Peter Montoya Inc. customer service representative at 888-730-5300 (or such other number as specified by Peter Montoya Inc. from time to time), e-mailing support@petermontoya.com or completing the cancellation steps inherent in the system. If you provide Peter Montoya Inc. with the appropriate termination notice prior to the end of the Initial Term, your Subscription shall continue only until the end of the Initial Term, and you shall be liable only for those fees, taxes, and other charges incurred in connection with your Subscription (collectively, "Subscription Fees") that accrue prior to such date. After the Initial Term, you may terminate your Subscription as of the end of any Renewal Month by speaking with a Peter Montoya Inc. customer service representative at 888-730-5300

C. 	Billing Information. For purposes of billing, identification, and future communications, you must provide Peter Montoya Inc. with all information requested by Peter Montoya Inc. at the time you submit your Subscription order. Without limitation, you must provide your full legal name, the full legal name of your Broker/Dealer, your address, telephone number(s), email address, and applicable payment data (e.g., a credit card number and expiration date) ("Member Data"). You agree to provide true, accurate and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. Member Data and certain other information about you and/or your business are subject to our Privacy Policy. You agree and acknowledge that Member Data from the registration process is used to send you information about the Site and Application, including, but not limited to, the use of your email address for newsletters and other necessary communications. You further agree that, in the event that any Member Data changes during the course of your Subscription, you must provide updated Member Data as soon as possible. See Peter Montoya Inc.'s Privacy Statement at http://www.MarketingLibrary.net/privacy.asp for disclosures relating to Peter Montoya Inc.'s collection and use of your personal information.

D. 	Subscription Fees. You agree to pay all Subscription Fees. Subscription Fees shall be as specified by Peter Montoya Inc. from time to time in its sole discretion. Peter Montoya Inc. may establish or change Subscription Fees for Renewal Months by posting such fees on either of the websites located at www.MarketingLibrary.net (or on a sub-page of either of those websites), by posting a conspicuous notice in the Site or Application, by emailing you, or by otherwise notifying you either orally or in writing in advance of the applicable Renewal Month. All Subscription Fees will be billed to the credit card that you designate during registration (or such other credit card as you may designate from time to time). All monthly, annual, or other periodic Subscription Fees will be billed automatically to your credit card at the start of each such period during the Initial Term. For Renewal Months, the monthly Subscription Fees will be billed to your credit card each month on the date that corresponds with the anniversary date of your Subscription. All Subscription Fees shall become nonrefundable thirty (30) days following registration. At Peter Montoya Inc.'s discretion, past due Subscription Fees are subject to interest at the rate of 1.5% per month, or the maximum permitted by law, whichever is less. You shall be responsible for all expenses (including, without limitation, reasonable attorneys' fees) incurred by Peter Montoya Inc. in connection with the collection of any past due Subscription Fees.

4. 	USER NAMES AND PASSWORDS. You will be required to choose (or, at Peter Montoya Inc.'s discretion, you will be assigned) a user name and password for the Site and Application. 

A. 	Personal Use and Confidentiality. Your user name and password are for your exclusive use. You are solely responsible for maintaining the confidentiality of your user name and password, and for all activities that occur under your user name and password. You may not disclose your user name and password to anyone other than an authorized employee of Peter Montoya Inc., including without limitation any other representatives or employees of the Broker/Dealer you represent. You must notify Peter Montoya Inc. immediately if you become aware of any unauthorized use of your user name or password, or if you become aware of any other breach of security regarding the Site or Application. Peter Montoya Inc. will not be liable for any loss or damage that you may incur as a result of someone else using your user name or password, either with or without your knowledge. 

B. 	Record of Use. Your user name and password may be used to catalog and track your marketing activities by your Broker/Dealer. By entering into this Agreement you hereby authorize your Broker/Dealer to have access to any and all records of your usage of your account and you authorize Peter Montoya Inc. to provide such access.

5. 	INTERNET ACCESS; SYSTEM REQUIREMENTS. Use of the Site and Application, or certain parts thereof, requires access to the Internet. Additionally, use of the Site and Application may require particular equipment, software, and/or telecommunications services, and Peter Montoya Inc. may change those requirements from time to time in its sole discretion and without prior notice. You are solely responsible for obtaining, configuring, maintaining, and paying for all equipment, software, and telecommunications services necessary for you to access the Internet and use the Site and Application. 

6. 	APPLICATION LICENSE.

A. 	License Grant. During the term of this Agreement, and subject to all other terms and conditions herein, Peter Montoya Inc. hereby grants you a personal, limited, revocable, nonexclusive, non-sublicensable, nontransferable license to do the following, but only for your own internal business purposes and only in a manner consistent with all applicable end user documentation: (a) use on your personal computer(s) any and all software components of the Application that Peter Montoya Inc. makes available to you for downloading through the Site, (b) install and use on your personal computer(s) any and all software components of the Application that Peter Montoya Inc. provides to you on physical media, and (c) access and use all components of the Application that Peter Montoya Inc. makes available to you directly through the Site.

B. 	Limitations. Except as expressly permitted above in this Section 6, you may not use or reproduce the Application or the Site, including but not limited to any of the materials and Messages available via the Site and/or Application. To the maximum extent permitted by applicable law, you may not: (a) sell, sublicense, rent, lend, lease, timeshare, commercialize, or transfer the Site or Application, or otherwise make the Site or Application available, to any third party; (b) use the Site or Application for the benefit of any third party; (c) modify, translate, or create derivative works of the Site or Application; (d) reverse assemble, reverse compile, or reverse engineer the Site or Application; (e) alter or modify any disabling mechanism that may be resident in the Site or Application; (f) remove, alter, or obscure any copyright notice or other proprietary notice or legend that is on or in the Site or Application; (g) access or use the Site or Application for fraudulent purposes, in violation of any applicable laws, or in violation of this Agreement (as it may be modified from time to time). If a license to use the Site or Application was purchased in the United States, you agree to comply with all applicable United States laws and regulations pertaining to export controls. If a license to use the Site or Application was purchased outside the United States, you may not re-export the Site or Application except as permitted by the laws of the United States and the laws of the jurisdiction in which you purchased a license to use the Site or Application. Any reproduction, modification or redistribution of the Site or Application is expressly prohibited, and may result in severe civil and criminal penalties. The Site and Application, their structure, sequence and organization and source code are considered trade secrets of Peter Montoya Inc. and are protected by trade secret laws. WITHOUT LIMITED THE FOREGOING, COPYING OR REPRODUCING THE SITE OR APPLICATION TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. YOU MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.

7. 	LIQUIDATED DAMAGES. As noted above, your limited license to use the Site and Application is non-transferable. You and Peter Montoya Inc. agree that, in the event that you disclose your user name and password to another person or persons and/or permit another person or persons to use the Application in violation of the terms of this Agreement it will be impracticable or extremely difficult to determine the damages suffered by Peter Montoya Inc. It is therefore agreed that in the event of such unauthorized disclosure or use by you or by others facilitated by you, you shall pay to Peter Montoya Inc. the sum of twenty thousand dollars ($20,000) as liquidated damages.

8. 	OWNERSHIP OF THE SITE, APPLICATION, AND MESSAGES. The Application is being licensed to you, not sold. Except for the limited license granted in Section 6 above, Peter Montoya Inc. and its licensors own and retain all right, title, and interest in and to the Site and Application, all copies of the Application, all data, compilations, and information underlying or relating to the Application (other than any Content, as defined below), and all intellectual, industrial, and proprietary rights in or relating to any of the foregoing (including, without limitation, all copyrights, patents, trademarks, and trade secrets). Furthermore, Peter Montoya Inc. or Third Party Vendors, as the case may be, retain all right, title, and interest in all Messages, except those Messages submitted by individual Registered Representatives under the Exclusive Option. 

	A. 	Site History Retention. Broker/Dealer may designate how long their Registered Representative's "Site History" (defined as the records of each Registered Representative's downloading or uploading of Messages from or to the Site) shall be maintained by Peter Montoya Inc. Site History shall be maintained for a minimum of one (1) year, measured from the date of a given downloading or uploading event. However, Broker/Dealer may request a lengthier retention period as specified in the operative Broker/Dealer Agreement.  You may receive a WORM Back-up of the General Ledger (i.e., "write once, read many", a data storage technology that allows information to be written to a disc a single time and prevents the drive from erasing the data) of their your Site History upon request to Peter Montoya Inc and payment of five hundred dollars ($500) to cover costs. Peter Montoya Inc. shall have no further obligation to retain Site History after termination of this Agreement. Accordingly, if you desire to receive a back-up of your Site History occurring prior to such termination, a back-up must be requested pursuant to this section concurrently with the termination of this Agreement.

9. 	USER CONTENT.

A. 	Representations. You are solely responsible for any and all data, diagrams, pictures, text, information, and other materials that you input, store, or transmit using the Application (collectively, your "Content"). You hereby represent and warrant to Peter Montoya Inc. that your Content will not: (a) infringe upon or otherwise violate any intellectual or industrial property rights (including, without limitation, copyrights, patent rights, trademark rights, and trade secret rights), or any other rights (such as the rights of privacy and publicity), of any third party; (b) contain any software viruses or other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any equipment, software, or telecommunications services; (c) contain any unlawful, harassing, harmful, threatening, profane, defamatory, or obscene materials; or (d) violate any applicable laws.

B. 	Storage. You may store your Content on Peter Montoya Inc.'s servers for use with the Application, and Peter Montoya Inc. will use commercially reasonable efforts to backup such Content at least one time per week. However, you acknowledge and agree that Peter Montoya Inc. has no responsibility or liability for any deletion, destruction, corruption, or other loss of such Content. Peter Montoya Inc. may, from time to time, set limits on the amount of disk space allotted to you for the storage of your Content on Peter Montoya Inc.'s servers. Further, Peter Montoya Inc. may charge storage fees for exceeding those limits. You will be notified of any such limits and storage fees (or any changes thereto) through email, through a notice posted in a conspicuous place in the Application, through a notice posted on either of the websites located at www.MarketingLibrary.net (or on a sub-page of this website), or through some other form of notice provided either orally or in writing. 

10. 	TECHNICAL SUPPORT. Peter Montoya Inc. will, to the extent commercially reasonable, attempt to assist you with accessing and using the Application ("Technical Support"). Peter Montoya Inc. will, at your option, provide you with Technical Support via telephone, facsimile, and/or email. Technical Support staff is available between the hours of 9:00 AM and 5:00 PM, Pacific Standard Time, Monday through Friday. However, Technical Support response times may vary depending upon the nature of the support requested and the quantity of other support requests. Peter Montoya Inc. may modify its Technical Support policies and procedures (including, without limitation, availability dates and times and communication methods) from time to time in its sole discretion and without notice. For further information regarding Technical Support, please visit Peter Montoya Inc.'s website at www.MarketingLibrary.net. 

11. 	MAINTENANCE. Peter Montoya Inc. will use commercially reasonable efforts to promptly repair faults in the Application that materially degrade its functionality or performance, or that cause it to be inaccessible to users. Peter Montoya Inc. may also perform other maintenance on the Application from time to time in its sole discretion. You shall not be entitled to any abatement in Subscription Fees for any Application faults or downtime.

12. 	MODIFICATIONS. Peter Montoya Inc. may upgrade, enhance, change, suspend, discontinue, or otherwise modify any aspects or components of the Application (collectively, "Modifications") at any time in its sole and absolute discretion and without notice. Any Modifications made available to you will be subject to the terms of this Agreement. You shall not be entitled to any abatement in Subscription Fees for any Modifications. 

13. 	SUSPENSION; TERMINATION. If Peter Montoya Inc. believes, in its sole discretion, that you have violated any term or condition in this Agreement, Peter Montoya Inc. may suspend your access to and use of the Application until such time as Peter Montoya Inc. believes, in its sole discretion, that you have cured such violation or that such violation did not occur. Any such suspension shall not entitle you to any abatement in Subscription Fees. If you breach or otherwise fail to comply with any of the terms or conditions in this Agreement, Peter Montoya Inc. may terminate your Subscription immediately and without notice, and you shall not be entitled to a refund of any pre-paid Subscription Fees. Peter Montoya Inc. may also terminate your Subscription for any reason or no reason whatsoever upon thirty (30) days prior notice via email or otherwise in writing, in which event you shall receive a prorated refund of any prepaid, periodic Subscription Fees (such proration to be calculated using the date on which the Agreement terminated). You may terminate your Subscription by written notice to Peter Montoya Inc. if Peter Montoya Inc. materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from you describing the breach in reasonable detail. If you terminate your Subscription due to a material breach by Peter Montoya Inc., you shall be entitled to a prorated refund of any prepaid, periodic Subscription Fees (such proration to be calculated using the date on which the Agreement terminated). You acknowledge that as of February 1, 2006 and from time to time thereafter there may be certain specialized versions of the Application to which You may have been or may be given access, delivery and/or rights of use, and that such specialized versions may include, without limitation, co-branding by Peter Montoya Inc. and another party or organization (e.g., a Broker/Dealer or Registered Investment Advisory company) due to a business relationship between them (collectively, "Special-Issue" or "Co-Branded Products"). For those entering into this Agreement on or after February 1, 2006, You agree that Peter Montoya Inc. shall have the right, in its sole discretion, without notice to You and without limiting any other right or action herein reserved to Peter Montoya Inc. , to (i) discontinue, cease support of and terminate Your access to and use of any such Special-Issue or Co-Branded Product(s), and (ii) transition You (provided You are then in good standing and not in breach of this Agreement) to a then-available product offered by Peter Montoya Inc. as an alternative to such Special-Issue or Co-Branded Product. Upon any expiration or termination of your Subscription, (a) this Agreement shall automatically and immediately terminate, (b) you will no longer be allowed to access and use the Application , (c) you must remove all copies of the Application, or any components thereof, from your personal computer(s) and destroy any and all related media and documentation, (d) you shall remain liable for all Subscription Fees that have accrued but remain unpaid as of the date of such expiration or termination, and (e) Sections 2, 4, 7, 8, 9, 13, 15, 16, 17, 18, 19,  20, and 21 of this Agreement shall survive and shall remain in full force and effect in perpetuity. Ninety (90) days following any expiration or termination of your Subscription, Peter Montoya Inc. may delete any or all of your Content that is stored on any Peter Montoya Inc. servers. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION MAY HAVE A MECHANISM WHEREBY PETER MONTOYA INC. CAN LIMIT OR DISABLE YOUR ACCESS TO THE APPLICATION. YOU AGREE THAT PETER MONTOYA INC. MAY USE SUCH MECHANISM UPON ANY EXPIRATION OR TERMINATION OF YOUR SUBSCRIPTION, OR IF PETER MONTOYA INC. SUSPENDS YOUR ACCESS TO OR USE OF THE APPLICATION AS PERMITTED IN THIS SECTION 13. 

14. 	ADVERTISING ON THE SITE. Peter Montoya Inc. may, in its sole and absolute discretion, place its own advertising as well as advertising of third parties on any portion of the Site. Such advertising may include, without limitation, pop-ups, landing pages, banners, and crawlers. Third party advertising appearing in any area of the Broker/Dealer Library shall be approved by your Broker/Dealer. 

15. 	THIRD PARTY CONTENT. The Site contains content and information from Third Party Providers and/or links to third party Web sites, including but not limited to advertising ("Third Party Content"). Such content is not under the control of Peter Montoya Inc. and Peter Montoya Inc. is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. Peter Montoya Inc. is providing such Third Party Content to you only as a convenience, and the inclusion of such content does not imply endorsement by Peter Montoya Inc. of such content or the affiliate. You may be subject to additional and/or different terms, conditions, and privacy policies when you use third party services, content, software, or sites. Peter Montoya Inc. does reserve the right to remove content that, in Peter Montoya Inc.'s judgment, does not meet its standards, but Peter Montoya Inc. is not responsible for any failure or delay in removing such material. Peter Montoya Inc. is not and will not be responsible for (i) the terms and conditions of any transaction between you and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release Peter Montoya Inc. (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

	A. 	Third Party Messages. Messages generated by Third Party Providers may be made available through the Site and Application subject to this Section 15. Such Messages are the property of the corresponding provider. Accordingly, your use of such Messages may be subject to additional or different licenses than those specified herein and may be subject to additional fee not included in the Subscription Fees specified in Section 3 herein.

16. 	NO REPRESENTATIONS OR WARRANTIES. The Site and Application are provided on an "as available," "as is" basis. To the maximum extent permitted by applicable law, Peter Montoya Inc. and its parent companies, subsidiaries, affiliates, suppliers, and licensors disclaim all representations and warranties of any kind with respect to the Site, Application, and any Messages, including but not limited to implied warranties of non-infringement, title, merchantability, quiet enjoyment, quality of information, and fitness for a particular purpose. Without limiting the generality of the foregoing: Peter Montoya Inc. does not represent or warrant that the Site, the Application, or the Messages will meet your requirements, that the operation of the Site or Application will be uninterrupted or error-free, or that defects in the Site, the Application, the Messages or related documentation will be corrected. Peter Montoya Inc. makes no representation or warranty of any kind, express or implied, as to the speed, operation, or reliability of the Site or Application, the accuracy or completeness of any information accessible via the Site or Application, or the availability, quality, or safety of Messages or any other products or services available through the Site or Application. Further, Peter Montoya Inc. does not represent or warrant that the Site or Application, or the content available through the Site or Application, are free of viruses or other harmful components. No oral or written information or advice given to you or your agent by Peter Montoya Inc. or any other party with respect to the Site or Application or anything related thereto shall create a representation or warranty, or in any way increase the scope of Peter Montoya Inc.'s obligations hereunder. Peter Montoya Inc. assumes no responsibility and makes no representations, warranties, recommendations, endorsements, or approvals with regard to any Messages, opinions, advice, statements, products, services, offers, or other information or materials expressed or made available by third parties, including but not limited to Third Party Providers, through or in connection with the Site or Application. You assume total responsibility and risk for your use of the Site, the Application, and any and all Messages and related services.

17. 	LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PETER MONTOYA INC. OR ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA, AND/OR BUSINESS INTERRUPTION), ARISING OUT OF OR RELATING IN ANY WAY TO THE USE OR INABILITY TO USE THE SITE OR APPLICATION, AN RELATED SERVICES, OR ANY CONTENT OR INFORMATION CONTAINED THEREIN EVEN IF PETER MONTOYA INC. OR ANY SUCH RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, PETER MONTOYA INC.'S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE SUBSCRIPTION FEES PAID BY YOU DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. YOU AGREE THAT YOU WILL HAVE SOLE AND COMPLETE RESPONSIBILITY FOR ANY DECISIONS MADE OR ACTIONS TAKEN BY YOU IN RELIANCE UPON THE SITE OR APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND APPLICATION ARE NOT INTENDED TO SUPPLY TAX, INVESTMENT, OR LEGAL ADVICE. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

18. 	INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Peter Montoya Inc., its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by you or any employee or agent of you to comply with the terms of this Agreement; (ii) any warranty or representation made by you being false or misleading; (iii) any representation or warranty made by you or any employee or agent of you to any third person other than as specifically authorized by this Agreement, (iv) negligence of you or your subcontractors, agents or employees, or (v) any alleged or actual violations by you or your subcontractors, employees or agents of any governmental laws, regulations or rules.

19. 	U.S. GOVERNMENT RESTRICTED RIGHTS. The Application and any related documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, and in similar clauses in the NASA FAR Supplement, as applicable. Manufacturer is Peter Montoya Inc., 150 El Camino Real, Ste. 200, Tustin, Ca, 92780, USA. 

20. 	ARBITRATION. Any and all disputes, controversies, or claims arising out of or relating to this agreement, including without limitation, claims based on contract, tort, or statute, shall be determined by arbitration. 

A. 	Arbitration will be administered by the American Arbitration Association in accordance with the Commercial Arbitration Rules. 

B. 	Any party may initiate arbitration by giving the other party a written demand for arbitration in accordance with the notice provisions of the Agreement. Within ten (10) days of receipt of a demand for arbitration under paragraph this, the other party shall deliver a written response on the demanding party, agreeing to participate in the arbitration. 

C. 	Arbitration shall be initiated by service of the demand for arbitration. Arbitration shall be initiated within a reasonable time after the claim has arisen. In no event may arbitration be demanded after the date the claim would be barred by the applicable statute of limitations. 

D. 	The arbitration shall be conducted and determined by a sole arbitrator. The arbitrator will be chosen by mutual agreement of the parties. If the parties fail to reach agreement within thirty (30) days of service of the demand for arbitration, the arbitrator will be chosen by mutual agreement of two arbitrators, one appointed by each party. The two arbitrators' choice of arbitrator shall be final and binding on the parties. The Two arbitrators will use their best efforts to appoint an arbitrator within ten (10) days of being informed of the parties' request for an appointment. 

E. 	The up-front costs of the arbitration and arbitrator fees shall be borne by the parties equally. Costs and fees so paid will be subject to reallocation by the arbitrator in the award as provided for in this agreement. If any party fails or refuses to pay its share of the cost of arbitration the other party may, at its option, (1) elect to pay the entire cost of the arbitration, in which case the obligation of the nonpaying party to otherwise participate in the arbitration is not excused; or (2) immediately proceed to litigation. Regardless of which party ultimately prevails, the court, if litigation is elected, or the arbitrator, if arbitration is elected, will award liquidated damages in the amount of ten thousand dollars ($10,000.00) to the party who paid the costs of the arbitration. 

F. 	At the request of a party, the arbitrator may in his or her discretion order reasonable discovery on a showing of good cause. 

G. 	The parties desire a speedy resolution of any disputes that may arise. To that end, the arbitrator will, on his or her appointment, consult with the parties to discuss a reasonable hearing and, if appropriate, discovery schedule. 

H. 	After the arbitrator is selected, any party may apply to the arbitrator for a temporary restraining order, preliminary injunction, or any other provisional or interim relief available under California law, if in that party's sole judgment the action is necessary to avoid irreparable damage or to preserve the status quo. The arbitrator has the power to issue interim relief to the same extent as a California court in a civil action. The parties agree that any interim relief ordered by the arbitrator may be confirmed by the court in the same manner of confirmation of final awards under the Code of Civil Procedure. 

I. 	Unless otherwise agreed by the parties, the arbitration hearings will be conducted in Orange County, California. 

J. 	In the event of a dispute over whether particular issues are arbitrable under this agreement, the arbitrator, and not the court, shall determine whether or not the arbitrator has jurisdiction over such issues, and the arbitrator's decision as to the arbitrator's jurisdiction over issues will be final and binding. 

K. 	This agreement to arbitrate is intended to be binding on and to inure to the benefit of the parties to this agreement, their principals, successors, assigns, affiliates, partners, employees, parent or subsidiary entities, and to any other parties whose claims or defenses may arise out of or relate to this agreement. 

L. 	The arbitration award shall be in writing, signed by the arbitrator and shall be in the form of a written, reasoned opinion setting forth the arbitrator's findings of fact and conclusions of law. 

M. 	In any arbitration arising out of this agreement, the prevailing party is entitled to reasonable attorney fees. 

N. 	Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. 

O. 	If a party fails or refuses to appear or participate in the arbitration, or in any portion of the arbitration, after having been given notice and opportunity to participate as provided in this agreement, the arbitration will proceed and the arbitrator may render a final award on the basis of the evidence presented by the participating party. An award rendered under such circumstances is valid and enforceable as if all parties had participated fully.

21. 	MISCELLANEOUS. This Agreement constitutes the entire understanding and agreement between Peter Montoya Inc. and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. This Agreement is governed by and construed in accordance with the laws of the State of California, U.S.A, as applied to agreements entered into and wholly performed within California between California residents. Any action or proceeding arising from or relating to this Agreement that is brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the County of Orange, State of California, U.S.A., and the parties hereby submit to the personal jurisdiction of such courts for purposes of any such action or proceeding. In any action arising from this Agreement, the prevailing party shall be entitled to recover its costs, including expert witness fees, and attorney's fees from the other party. THIS AGREEMENT SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Peter Montoya Inc. to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. Peter Montoya Inc. shall not be responsible for any delays, errors, failures to perform, interruptions, or disruptions in the Application caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, storm, power failure, or failures of the Internet. Any notices from Peter Montoya Inc. under this Agreement that are sent by email, or that are posted in the Application or on Peter Montoya Inc.'s website at www.MarketingLibrary.net (or on a sub-page thereof), shall be deemed given when sent or posted, as applicable.

22. 	MODIFICATIONS TO TERMS OF USE. Peter Montoya Inc. may modify the terms of use for the Site and Application from time to time in its sole discretion. Peter Montoya Inc. will notify you of any such modifications by email, by posting a conspicuous notice in the Application, or otherwise in writing (each, a "Modification Notice"). You must contact Peter Montoya Inc. immediately following your receipt of a Modification Notice if you do not agree to such modifications. By continuing to use the Application or any aspect or component thereof after Peter Montoya Inc. sends or posts (as applicable) a Modification Notice, you are agreeing to such modifications.

23. 	NO UNLAWFUL OR PROHIBITED PURPOSE. As a condition of your use of the Site and Application, you warrant to Peter Montoya Inc. that you will not use the Site for any purpose that is unlawful or prohibited by this Agreement or by applicable laws or regulations.