MFA CUSTOMER AGREEMENT
THIS AGREEMENT (Agreement) is between you, the Consumer, (Consumer or You), and
Myfinancialadvice, Inc. (MFA or We or Us).
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DEFINITIONS
We have included the meanings of all capitalized terms that we use in this
Agreement in Appendix A.
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TERMS AND CONSIDERATION
This Agreement describes the terms and conditions under which We will allow You
to use our Website to contact Advisors and obtain advice from them. When You
click on the approval box on the online screen where You see this Agreement or
when You use the Website to obtain any Advisor Services, You will have approved
this Agreement and You and MFA will be bound by its terms. Both MFA and You
agree that Your use of the Website and access to Advisor Services and the
mutual agreements of MFA and You in this Agreement are full and adequate
consideration for your and MFA's respective obligations under this Agreement.
MFA may prohibit any person from access to the Website or from using the MFA
Services, at any time, in its sole discretion.
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AMENDMENT
We may amend this Agreement or any of the Rules, regulations, requirements or
conditions that apply to the MFA Services at any time by posting the amendment
on our Website. All amendments are effective as soon as We post them. If You
continue to use the Website or ask for any new Advisor Services after we post
an amendment, You will be considered to have agreed to the amendment and You
will be bound by it.
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YOUR OBLIGATIONS AND REPRESENTATIONS
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REPRESENTATIONS AND WARRANTIES You hereby represent and warrant to MFA as
follows:
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You agree that during the term of this Agreement and for a period of two years
from the date an Advisor terminates his or her relationship with MFA, You will
not seek any Services directly from the Advisor; You will not attempt to meet
with an Advisor in person; You will not attempt to purchase any product from an
Advisor; and You will not pay any fees directly to an Advisor. You understand
that every Advisor listed through MFA is under the same restrictions.
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You are an individual, at least 18 years old, who is able to form legally
binding contracts under the laws of your state of residence and the state of
Colorado.
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You are acting on your own behalf or that of your immediate family and not on
behalf of any other individual or on behalf of any entity, whether private,
public, governmental, nonprofit or other.
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Your legal residence and the place from which You are accessing the MFA
Services are within the United States, are listed accurately on your
registration information; and do not prohibit access to or participation in
services such as those offered by MFA and the Advisors.
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You represent that the information You have provided in your registration forms
is true, accurate, current and complete; You will let MFA know immediately if
there is any change to any of that information; and You acknowledge and agree
that the Advisors and MFA may rely on the information You provide as being
accurate and current.
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You will maintain the confidentiality of your password and username, You accept
full responsibility for all activities that occur under your password and
username and You agree to notify MFA of any unauthorized use of your password
or username or any other breach of security as soon as You become aware of such
use or breach.
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You have not previously had an account with MFA that MFA terminated for cause
and You will maintain no more than one (1) account with MFA at any given time.
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You understand and agree that the MFA Services and the Website are available to
You solely for the purpose of obtaining advice from Advisors and for no other
purpose and You will not use the MFA Services or the Website for any other
purpose.
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You agree to comply with all rules and regulations that apply to your use of
the Website and the MFA Services as they may be posted on the Website from time
to time.
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CONFIDENTIAL INFORMATION Except for the limited purpose of accessing Advisor
Services as authorized by this Agreement, You agree not to use, copy, share,
otherwise disclose to any third party, modify, rent, lease, loan, sell,
distribute, reverse engineer, create derivative works based on, or otherwise
access or manipulate any Confidential Information as defined in Appendix A. You
understand that Confidential Information includes the MFA proprietary software
and MFA Services. You acknowledge that all Confidential Information is
protected by applicable privacy, intellectual property and other state and
federal laws. You understand that your unauthorized use of any of such
materials will subject You to possible criminal sanctions and/or potential
damages to MFA, Advisors and others.
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INTEGRITY OF COMPUTER SYSTEMS You understand that it is your obligation to
protect your computer systems from any viruses, worms, infected data or other
problems that could be transmitted through the Website or from Advisors to You.
You will not knowingly transmit any virus, worm, infected data or other harmful
data to MFA or any Advisor and You will notify MFA immediately if You become
aware that You have transferred any such item inadvertently.
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OBLIGATIONS AND REPRESENTATIONS OF MFA
The duties and obligations of MFA under this Agreement are limited to the
following:
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MFA SERVICES
Through the MFA Services, MFA gives You access to Advisors who may be able to
answer your financial questions or provide advice to You (Advisor Services).
MFA is not a party to any transaction between You and any Advisor. This is not
an advisory agreement and MFA is not offering to provide investment advice to
You under this Agreement. MFA does not endorse, recommend, guarantee or make
any other representation or warranty regarding the suitability, usefulness,
quality, accuracy, reliability, accessibility, integrity, completeness,
legality of, or level of risk associated with, any advice You may receive from
an Advisor through MFA Services.
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CUSTOMER SERVICE ASSURANCE
If You have any concerns with the MFA Services or any of the terms of this
Agreement, You should send your concerns immediately to MFA. If You have any
concerns with the Advisor Services You receive through the Website, You should
send those concerns to the Advisor, with a copy to us, so that we are aware of
any disagreements that You may have with a particular Advisor. If we believe
that You have not received quality Services from us, we may provide to You a
credit of $25.00 to be used with another Advisor of your choice as part of our
Customer Service Assurance. In limited cases where your Advisor has not
provided You with any advice for which You have paid, we may assign your
Project to another Advisor, including an Advisor that works for MFA. This
Assurance is the maximum amount of MFA's obligations to You for Services You
use through the Website.
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PRIVACY
MFA respects the privacy of your nonpublic personal information. Please review
our privacy policy, at www.myfinancialadvice.com/common/PrivacyPolicy.aspx.
If You have any questions or comments about our privacy policies, You may
contact us at our address listed in Section XI, below. You understand and agree
that, irrespective of the provisions on privacy and confidentiality contained
in this Agreement, if We become aware that any of your activities violate any
state or federal laws or regulations, We, in our sole discretion, may report
such activities to applicable authorities.
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MATCHING
Our proprietary matching system uses a variety of factors to identify the names
of Advisors who appear to meet your requests. There is no assurance that the
Advisors will in fact have all of the qualifications that You request for a
specific Project. You are responsible for making the selection of the Advisor
based on the information available about the Advisor on the Website.
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AVAILABILITY AND STRUCTURE OF WEBSITE
We reserve the right to discontinue or modify, temporarily or permanently, all
or part of the capability of the Website with or without notice. We may limit
the availability during certain hours to conduct maintenance, install upgrades
or do other work on the system. We may make changes to the structure of the
Website, update information on the Website, provide additional Services, modify
features and/or change the format of any part of the Website in our sole
discretion. There may be occasions when You are unable to access our Website or
some of our Services due to technical or other problems that may or may not be
within our control. We are not liable for any damages or losses You may incur
through interruptions or disruptions in the availability of the Website.
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STORAGE OF INFORMATION AND DATA
The data stored on the Website belongs to MFA. We reserve the right to limit
the size of any file and to set the length of time We will keep any information
accessible on the Website. You should download and store any information You
want to keep into your own computer or other file system.
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THIRD-PARTY WEBSITE LINKS
The MFA Website may contain links to websites operated by parties other than
MFA. We provide those links for your benefit and information. We do not control
such websites and We are not responsible for their content. Our inclusion of
links to such websites does not imply any endorsement of the material on such
websites or any association with their sponsors. We may compensate the sponsors
of certain of those websites who also include links to our Website by paying
them fees that are based on the amounts we earn from Consumers who access our
Services through links from their website.
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FEES AND PAYMENT
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ADVISOR FEES
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Responsibility
We do not negotiate the fee You will pay for Advisor Services. You are
responsible for negotiating and agreeing with the Advisor on the fee that You
will pay for a specific Project.
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Payment
You must pay all fees for Advisor Services by credit card, in U.S. dollars. You
authorize MFA to collect the agreed-upon fee for the Advisor from your credit
card account at the time the Advisor starts the Project. We will keep the fee
in a segregated bank account until the Project is completed, even if this
Agreement is terminated before the end of the Project. We will pay the fee to
the Advisor when the Advisor sends us the Project Summary indicating the
Advisor has completed the Project.
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Refunds
We will refund, through a credit to your credit card account, any fees that we
have collected for an Advisor, which fees have not been fully earned by the
Advisor within six (6) months from the date we collect the fees. Otherwise,
except under extraordinary circumstances, such as the inability or
unwillingness of an Advisor to complete a Project, fees are nonrefundable once
they have been collected. For a Project that has been partially completed, MFA,
in its discretion, may prorate the fee based on the Advisor Services that were
actually provided.
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MFA FEES
To cover the MFA Services we earn a fee equal to a percentage of the amount You
agree to pay an Advisor for a Project. Our fee is earned when a Project is
completed. Our fees range from 25% to 50 % of the fee that You pay the Advisor.
The specific amount will be determined at the time You agree with an Advisor on
a specific Project. Once paid, our fee is not refundable, unless the Advisor's
fee is refunded.
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TERMINATION
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MFA'S RIGHT TO TERMINATE
We allow You to access the Website and participate in the MFA Services, in our
sole discretion, and only during the time that this Agreement and any
amendments to it are effective and binding on You. We will terminate your right
to participate in the MFA Services by giving You written notice and blocking
your access to the Website, if we believe, in our sole discretion, that:
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You have violated or are threatening to violate any of the terms of this
Agreement, including any of the representations You have made in Section IV,
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You have violated or are threatening to violate any of the rules or regulations
imposed on Consumers who access the Website,
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You have engaged or intend to engage in fraudulent activity in connection to
the Website or any of the MFA Services or Advisor Services,
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your continued participation will cause harm to any of MFA, the Advisors, the
Website, any other Consumer or any other person affiliated or associated with
any of those persons, or
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for any other reason MFA believes appropriate.
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YOUR RIGHT TO TERMINATE
You may terminate your participation in the MFA Program and your ability to
access Advisor Services by notifying MFA at any time.
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EFFECT OF TERMINATION
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Payments and Fees
At termination, We will charge your credit card account for any amounts due at
termination for any unpaid Advisor fees. Unless specifically authorized by
other provisions of this Agreement, We will not refund any of the fees we have
collected from You for Advisor Services.
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Continuation of Certain Provisions
It is understood and agreed that, whether MFA terminates this Agreement or You
decide to terminate it, the following provisions will remain binding on You
after termination:
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the provisions concerning confidentiality in Section IV.A.5 and IV.B.;
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the restrictions on the use of the Website in Section IV.A.7;
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the restrictions on activities with Advisors in Section IV.D;
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the provisions concerning liability and indemnification in Section IX; and
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the provisions on Arbitration in Section X.
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ASSIGNMENT
MFA may assign its interest in this Agreement only with Your consent. You may
not assign any of your rights under this Agreement to any person. As used in
this paragraph, "assign" or "assignment" has the meaning given to the terms
under Sections 202 and 205 of the Investment Advisers Act of 1940. Assignment
under that Act includes any change in the control of MFA, such as a sale of
stock, a sale of its assets, merger or acquisition.
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LIABILITY AND INDEMNIFICATION
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LIMITATIONS ON LIABILITY
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Disclaimer of Warranties
The Website and all of its content are provided "as is" and "as available"
without warranties or conditions of any kind, either express or implied. We
will not be liable for damages, including any refunds, prorations or
adjustments to fees You have paid or fees You are unable to collect as a result
of any interruption, disruption, discontinuation or termination of the
availability of our Website or the Services provided through the Website for
any reason. Furthermore, We will not be held accountable for any disruption
that such events would cause in the delivery of your Services to Consumers
through the Website.
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Limitation on Liability of MFA
Except for those liabilities under the securities laws for which MFA may not
disclaim liability, MFA will not be liable or held accountable to You or any
other person claiming by or through You for any losses, damages or costs that
result from, are caused by, or are incurred in connection with, your
participation in the MFA Services or Advisor Services through the MFA Program
and its Website. You hereby release MFA from any and all such liabilities.
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INDEMNIFICATION
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Indemnification by You
You hereby agree to indemnify and hold harmless MFA and each person who
controls MFA within the meaning of Section 15 of the 1933 Act, and each of
MFA's officers, directors, employees and Associated Persons, for any losses,
costs or other damages incurred by such persons that resulted from any breach
by You of any of your representations or obligations under this Agreement or
any breach of any of the rules of MFA posted on its Website.
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Notice of Action
Any party seeking indemnification under this Agreement must give prompt notice
to the other party of the occurrence of any claim, proceeding or notice that
may involve a matter for which indemnification would be possible. Failure of
MFA to provide such notice, however, shall not relieve You of your duty to
indemnify under this Agreement.
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LIABILITY UNDER SECURITIES LAWS
Nothing in this Section shall prevent any party to this Agreement from bringing
any action against any other party to this Agreement claiming liability under
any provisions of any applicable securities laws in connection with the
services provided by MFA under this Agreement.
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ARBITRATION.
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INFORMATION YOU SHOULD CONSIDER
The following is an agreement that obligates You to settle any controversy You
may have with MFA through arbitration. You should be aware that:
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Arbitration is final and binding on the parties to it.
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You are waiving your right to seek remedies in court, including the right to a
jury trial.
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Pre-arbitration discovery is generally more limited than and different from
court proceedings.
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The arbitrators' award is not required to include factual findings or legal
reasoning and your right to appeal or to seek modification of rulings by the
arbitrators is strictly limited.
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The panel of arbitrators may include arbitrators who were or are affiliated
with the financial services industry.
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OBLIGATION TO ARBITRATE
You agree that any dispute(s) or difference(s) which You may have against MFA
or any of its control persons, officers, directors, employees or associated
persons that involves or arose out of this Agreement or any services provided
under this Agreement shall be resolved through arbitration under the rules of
the American Arbitration Association of the National Association of Securities
Dealers, Inc., if available to the parties. Notwithstanding anything to the
contrary, MFA may at any time seek injunctions or other forms of equitable
relief from any court of competent jurisdiction.
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NOTICE
Any notices required under the terms of this Agreement must be in writing and
must be addressed and delivered, mailed postage paid, or sent prepaid by other
delivery service, by facsimile transmission or by e-mail to each party at the
address each party has designated for the receipt of notice. Any notice sent by
e-mail or facsimile transmission must be confirmed by notice sent by mail or
other delivery service. The address for notice to You shall be the address
included in your registration information. MFA's address for notice shall be as
follows:
Myfinancialadvice, Inc.
c/o Consumer Relations
3005 Center Green Drive
Suite 115
Boulder, CO 80301
Notice shall be considered to have been received the day it is sent if it is
sent by facsimile transmission or email, the day it is received if it is sent
by courier or other delivery service or three days after it is placed in the
mail, postage prepaid.
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GENERAL
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INTERPRETATION; GOVERNING LAW
Irrespective of the application of any laws or rules governing choice of laws,
except for those provisions under certain applicable securities laws that may
override this Section, You understand and agree that the provisions of this
Agreement and the enforcement of any of its terms shall be construed in
accordance with, and governed by, the internal laws of the state of Colorado.
However, any term or provision of this Agreement that is the same as or derived
from a term or provision included in federal or state securities or insurance
laws or regulations, shall be interpreted by referring to such laws or
regulations and to interpretations of those laws by applicable federal or state
regulatory authorities.
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ENTIRE AGREEMENT
This Agreement is the entire agreement and understanding of the parties to this
Agreement. It replaces and supersedes any prior agreements or representations
between the parties affecting the matters addressed in this Agreement, whether
or not such prior agreements were in writing.
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VALIDITY OR ENFORCEMENT
The failure of MFA to exercise or enforce any of its rights under this
Agreement or any provision of this Agreement shall not be considered a waiver
of such right or provision and MFA shall have the right to enforce the right or
provision at any time in the future or against any other party. If any
provision of this Agreement is found by a court of competent jurisdiction or
arbitration panel to be invalid, the parties nevertheless agree that the court
or panel should endeavor to give effect to the parties' intentions as reflected
in the provision. The invalidity of any provision in the agreement shall not
effect the validity of any other provisions of this Agreement, all of which
shall remain in full force and effect.
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INTERPRETATION
The section titles in this Agreement are for convenience only and have no legal
or contractual effect.
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ACKNOWLEDGEMENTS
BEFORE AGREEING TO ANY ADVISOR SERVICES, YOU MUST REVIEW THE DISCLOSURE
DOCUMENT FOR MFA AT: www.myfinancialadvice.com/Pdf/MfaDisclosure.pdf AND THE
DISCLOSURE DOCUMENT FOR THE ADVISOR AVAILABLE AS AN HTML LINK DIRECTLY FROM THE
ADVISOR'S PROFILE PAGE ON OUR WEBSITE. YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED A
COPY OF MFA'S PRIVACY NOTICE AT:
www.myfinancialadvice.com/Common/Static.aspx?Page=PrivacyPolicy BY CONSENTING TO THIS
AGREEMENT, YOU ACKNOWLEDGE THAT YOU WILL BE BOUND BY SECTION X OF THIS
AGREEMENT, WHICH CONTAINS A PREDISPUTE ARBITRATION CLAUSE, OBLIGATING YOU TO
SETTLE ANY DISPUTE WITH MFA THROUGH ARBITRATION. BY MARKING THE "ACCEPT" BOX ON
THE ONLINE SCREEN WHERE THIS AGREEMENT IS PRESENTED, YOU ARE SIGNING THIS
AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS. WE RECOMMEND THAT YOU DOWNLOAD
AND PRINT THIS AGREEMENT AND ALL THE ATTACHMENTS AND KEEP THEM WITH YOUR
RECORDS FOR FUTURE REFERENCE.
APPENDIX A
DEFINITIONS
When the following terms are capitalized in the preceding Agreement, they will
have the meaning described below (on some occasions, we may use a defined term
in a different manner and not as the defined word. In those cases, it should be
clear to You what meaning is intended):
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Advisor - means a person whose profile is listed on the Website and who offers
advice to Consumers through MFA.
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Advisor Services - means the advice that a Consumer requests and that the
Advisor provides through MFA.
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Agreement - the agreement between You and MFA which allows You to use the
Services offered by MFA. We encourage You to download and print the Agreement
for your records.
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Confidential Information means any nonpublic personal information that MFA or
an Advisor may receive through the Website about Consumers and any information
concerning or relating to the business of MFA, including, but not limited to
any information about its systems, platform, business plan, strategic marketing
data, procedures, methods, customer lists, customer data, costs, expenses,
profit objectives, books, records, know how and trade secrets which Advisor may
receive or acquire, whether during or after the term of the Agreement,
regardless of the source of the information. Confidential Information shall not
include any information which, at the time of disclosure, (i) was available to
the public, (ii) was rightfully obtained from third parties under no obligation
of confidentiality with respect to such information, (iii) was independently
developed by the party without access to Confidential Information, or (iv) was
already in the possession of the party prior to the commencement of Services.
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Consumer - means any person who may access the Website and request Services
through the Website from an Advisor.
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Disclosure Document - the document available through the Website for MFA and
for each Advisor that discloses information about MFA, the Advisor, the
relationship between them and the fees charged by each of them. We encourage
You to download and print this document for your records.
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MFA Myfinancialadvice, Inc., a Delaware Corporation that sponsors the Website
through which You can obtain Services from Advisors listed on the Website.
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Nonpublic Personal Information means any information relating to a Consumer
that is defined as nonpublic and/or personal, (or definitions having similar
meanings or understandings) under any rules or regulations of the SEC, the
Federal Trade Commission or any other state or federal regulatory authority
having jurisdiction over Advisor. Please review the MFA Privacy Policy for full
definitions and treatment of confidential and personal information at:
www.myfinancialadvice.com/general/privacy.aspx
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Project - a request by a Consumer for specific advice from an Advisor.
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MFA Services - means the Website and the ability of a Consumer to review
Advisors and request advice through that Website. MFA Services do not include
offering or giving advice as an Advisor.
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Website Myfinancialadvice.com the site on the World Wide Web sponsored by
Myfinancialadvice, Inc., which allows Consumers to obtain advice from Advisors.