1 Introduction

2 User Agreement

When you use our Services you agree to all of the terms and conditions in this contract (“User Agreement” or “Agreement”). Your use of our Services is also subject to our Privacy Policy, which covers how we collect, use, share, and store your personal information.

You agree that by clicking “Subscribe” or simply by accessing or using our Services (described below), you are agreeing to enter into a legally binding contract with OmniBay Global Data Services. If you do not agree to this contract do not click “Subscribe” and do not access or otherwise use any of our Services. You may terminate this User Agreement at any time by closing your account and no longer accessing or using our Services. Details about termination of this User Agreement are provided below.

You are entering into this User Agreement with OmniBay Global Data Services LLC (“OmniBay Global” or “we” and “us”).

By entering this Agreement, you acknowledge that we may use third parties to assist us in providing the Services, including facilitating sales leads for selling life insurance to purchasers (“Leads”) and aggregating information.

3 Services

Leads (Non-exclusive/Exclusive)

Subject to the terms and conditions of this User Agreement and payment of the fees set forth in Section 1.4 below, OmniBay Global will provide a variety of services via the OmniBay Global Site for the benefit of Customers, which services include, but are not limited to, the provision of Leads (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.

You acknowledge and agree that any Leads we provide to you are non-exclusive and may also be provided or sold to other Customers or individuals at any time, unless they are acknowledged as Exclusive Leads, in which case we may only sell them to other parties after 2 calendar days after we have provided them to you.

Independent Account Executive Referral Program (also referred to our the “Leads Discount Club”)

Subject to the terms and conditions of this User Agreement, you may opt to join the Leads Discount Club (become an Independent Account Executive) (“IAE”) with OmniBay Global. As an IAE, you are eligible to earn commissions based on certain purchases made by Customers whom you refer to OmniBay Global. (Not all purchases made by Customers referred by you will be eligible for commissions; details regarding commission eligibility and commission rates are provided to you when you become an IAE. Commission rates are subject to change and may vary based on your production level.) Commissions will be paid by the 15th day of each calendar month for purchases made in the prior month. As an IAE, you will have access to your commission reports through your back office; OmniBay Global’s calculations of commissions will be final and binding.

As an IAE, you will pay a monthly program fee of $157.00, which will be billed to you every 30 days based on when you enroll in the program. Payment of this fee provides you with access to back-office support, sales training, and access to discounted lead pricing on applicable leads. If you do not pay the fee within three days of the due date, your participation in the Independent Account Executive program will be terminated, and any unpaid commissions that have accrued to you will be forfeited. The monthly program fee may change at anytime. Should the company choose to change the fee, advanced notice will be provided to you.

4 Changes to this Agreement and the Privacy Policy

5 We may make changes to this User Agreement and our Privacy Policy from time to time. If these changes are material, we will notify you in advance so you can review the changes before they take effect, and, if you wish, to terminate your status as a Customer if you do not want to accept the changes. If you continue to use the Services after the changes take effect, you will be bound by the changes. Obligations

6 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 User 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 and 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.

7 Payment

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, returns or exchanges.

We may store and continue billing your payment method (e.g. credit card) even after it has expired, to avoid interruptions in your Services. In the event you provide a bank account or a debit card as your payment method, you hereby authorize us to debit your bank account for any payment obligations, including past due payment obligations and any late fees.

When you purchase a subscription, your payment method automatically will be charged at the start of each month for the fees and taxes applicable to that month. 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 can get a copy of your invoice through your account settings under Purchase History. 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 Global 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.

8 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; Phone Numbers; Publicity

9 Intellectual Property Rights

OmniBay Global 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 Global.

While you have an active subscription with OmniBay Global, and subject to the terms and conditions of this Agreement, OmniBay Global 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 Global Site.

10 Phone Numbers; TCPA Compliance

As part of the Services, we provide Customers with Leads, including telephone numbers for potential purchasers of life insurance. You acknowledge that your use of these telephone numbers might not comply with the Telephone Consumer Protection Act (the “TCPA”), and that some of these numbers may be on the Federal Communications Commission’s (the “FCC”) “Do-Not-Call” Registry.

You agree that before calling any of the numbers we provide you, you will check the Do-Not-Call Registry. We recommend the following websites to check the Do-Not-Call Registry:

https://donotpay.com/learn/how-to-check-if-a-number-is-on-the-do-not-call-list/

https://realphonevalidation.com/resources/do-not-call-list-scrubbing/

https://www.dnc.com/

You agree that checking the Do-Not-Call Registry is your obligation, and not ours. You agree to perform all additional due diligence necessary to ensure that the phone numbers we provide you are not on the Do-Not-Call Registry.

11 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 Global (collectively, the “Works”) and any and all allied, ancillary, subsequent and derivative rights associated therewith.

You acknowledge and agree that OmniBay Global 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 Global 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 Global may juxtapose materials portraying you with other materials in its sole discretion.

12 Disclaimer and Limit of Liability

13 No Warranty

We disclaim legal liability for the quality, safety, or reliability of our Services.

TO THE EXTENT ALLOWED UNDER LAW, OmniBay Global AND ITS AFFILIATES (AND THOSE THAT OmniBay Global 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, COMPLIANCE WITH TCPA, 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.

14 Exclusion of Liability

TO THE EXTENT PERMITTED UNDER LAW, OmniBay Global AND ITS AFFILIATES (AND THOSE THAT OmniBay Global 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 Global AND ITS AFFILIATES (AND THOSE THAT OmniBay Global 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 Global AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G. WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) EVEN IF OmniBay Global 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 Global 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 Global site, (b) any breach of this Agreement, (c) any violation of the TCPA arising out of the use of the Services, including any leads we provide you, or (d) any act or omission of you or anyone acting on behalf of or for you.

15 Termination

We can each end this Agreement anytime we want by providing written notice to the other party.

Both you and OmniBay Global 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.

16 Governing Law and Dispute Resolution

You and OmniBay Global 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 Global. 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.

17 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 Global 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 Global 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.

18 OmniBay Global “Dos and Don’ts”

19 Dos

You agree that you will:

20 Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, TCPA and regulatory requirements;

21 Provide accurate information to us and keep it updated;

22 Use the Services in a professional manner;

23 Allow us to provide your contact information to our affiliates and our vendors for any business purpose. Details are provided in our Privacy Policy; and

24 Allow us to disclose your information to law enforcement agencies, to the extent we are legally required to do so.

  • Don’ts

You agree that you will not:

25 Use or attempt to use another’s account;

26 Override any security feature;

27 Copy, use, disclose or distribute any information obtained from the Services, whether directly or through third parties, without the consent of OmniBay Global;

28 Disclose information that you do not have permission to disclose (such as confidential information of others);

29 Violate the intellectual property rights of others, including copyrights, patents, trademarks, trade secrets, or other proprietary rights.

30 Violate the intellectual property or other rights of OmniBay Global, 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 Global” or our logos in any business name, email, or URL;

31 Imply or state that you are affiliated with or endorsed by OmniBay Global without our express consent;

32 Represent yourself as an employee of representative of OmniBay Global Data Services, LLC; MJ Harris, Malcolm J. Harris, MJ Harris Global Enterprises, Quality Sales Alliance, OmniBay Financial Group, or any affiliate of any of the foregoing.

33 Rent, lease, loan, trade, sell/re-sell or otherwise monetize the Services or related data or access to the same, without OmniBay Global’s consent; or

35 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 Global Data Services LLC

1801 Century Park East, 24th Floor

Los Angeles, CA 90067

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.Notices from us to you will be sent to the address you provide in your profile.