Last Updated: 01/28/2017
APPLICANT UNDERSTANDS AND AGREES THAT THE FOLLOWING CONTRACT SHALL BECOME EFFECTIVE ONLY UPON THE ACCEPTANCE BY XYPN OF APPLICANT’S APPLICATION AND PAYMENT BY APPLICANT OF THE REQUIRED FEE. XYPN RESERVES THE RIGHT TO REJECT ANY APPLICATION IN ITS SOLE DISCRETION. MEMBERS AGREE TO ABIDE BY THE TERMS OF THIS AGREEMENT, AND UNDERSTAND CHANGES MAY BE MADE AT THE DISCRECTION OF XYPN. MEMBERS WILL BE ALERTED TO CHANGES TO THIS AGREEMENT.
A. Terms of Membership.
- In consideration for ongoing payment of the first monthly membership fee, XYPN agrees to provide all Members with products and services (and all updates as they become available throughout the term of this Contract).
- Member may identify himself/herself as an XYPN member, upon meeting the membership standards as listed below (as defined in Section D). The Member shall have the right to use the XYPN logo in promotional materials as long as they remain a member of the XYPN, subject to the terms of this Contract.
- The Member understands that membership in XYPN is on a month-to-month basis, and may be terminated at any time by the member with 30 days’ notice or by XYPN at any time without cause.
B. Member Agreements.
- Member agrees that available services will include a monthly retainer model. Additional models, including a quarterly or annual retainer, or charging based on assets under management, are permitted as well, but member must be willing to offer services to client on a monthly retainer model basis and be listed accordingly on the XYPN advisor search page. During the term of this Contract, Member shall provide services on a Fee-Only basis. For purposes hereof, “Fee-Only” shall mean the definition of Fee-Only as applied by the CFP Board’s rules of conduct. Member must be listed on the CFP® Board of Standards website with a Compensation Method of “Fee-Only”.
- Member shall comply with all Federal and State regulations regarding registrations which may apply to his or her activities as a financial advisor, including but not limited to becoming a registered investment advisor (“RIA”) by registering with the appropriate federal and state authorities. Member shall provide XYPN with a copy of his or her Form ADV Parts I and II upon application for membership, or, if the Member is not registered at the time of application, Member shall provide a copy of his or her Form ADV Parts I and II upon registering as an investment advisor. Member shall also provide XYPN with a current copy of Form ADV Part II as requested. XYPN will obtain a copy of Form ADV Part I for renewing Members from the Investment Advisor Registration Depository (“IARD”) website.
- Member shall abide by the Certified Financial Planner (“CFP®”) Board of Standards Code of Ethics and the National Association of Personal Financial Advisors (“NAPFA”) Fiduciary Oath.
- Members accepted as Members of XYPN must have CFP® certification to be listed on Advisor Search platform.
- Members without the CFP® certification are considered Associate Members and will be permitted, and have access to other features/benefits of XYPN, but will not be listed on the Advisor Profile Search, and may not use the XYPN logo or use their membership in XYPN on any marketing materials.
- Member shall provide financial advice as their primary service to clients. Members agree that at least 50% of the time spent on advisory tasks is related to financial planning services, with less than 50% being spend on investment related services.
- Member shall identify his or her firm as independently owned and operated and not owned or controlled by XYPN.
- Member acknowledges and agrees that XYPN owns all rights in and title to the names The XY Planning Network, LLC, XY Planning Network, XYPN, the XYPN business model, the XYPN logo and all materials provided hereunder to the Member including all copyright, trademark and other intellectual property rights.
- Member acknowledges and agrees that any XYPN proprietary software made available to members (including its source code, sequence, organization and structure) (if any) and other materials produced by XYPN, including but not limited to marketing programs, audio and video recordings (the “Materials”), etc. are unique and not generally available to the general public. Member further acknowledges that XYPN owns all right, title and interest and copyrights to the Materials and that all of the Materials contain trade secrets and confidential information for purposes of this Contract.
- Member acknowledges and agrees that the XYPN intranet, also known as the Forums, and its contents, discussion forums, announcements, and other content is provided for the exclusive use of XYPN Members and under no circumstance shall any information, documents, discussions, or other content from the intranet be shared with any party outside of the XYPN. Should a Member breach any provision regarding the trade secrets and confidentially of XYPN such Member shall be subject to immediate termination at the sole discretion of XYPN.
- Member may download documents, podcasts, and other items from the XYPN Intranet, provided that any such downloaded material may be used solely by the Member and only so long as such Member remains in good standing with the XYPN. If a Member employs staff or works with independent contractors the Member shall be responsible for such employees and independent contractors maintaining XYPN trade secrets and the confidentially of any document, resource, or information gain through the Member’s affiliation with the XYPN.
- Member agrees not to use the name “The XY Planning Network, LLC”, “XYPN”, the XYPN logo or any materials owned, provided or developed by XYPN outside the use contemplated by this Contract, and to maintain confidentiality of the XYPN business model, intellectual property, trade secrets, Intranet contents and discussions other than as necessary to render advice to clients.
- Member agrees not to represent any Materials owned, provided by or developed by XYPN as his or her own, except when used as a tool to market his or her services to clients or render advice to a client.
- Member agrees to notify XYPN by e-mail at least ten (10) days prior to any change in Member’s address, telephone number, email address, website address or any other information contained on the Application.
- Member acknowledges, agrees and represents to XYPN that Member has such knowledge and experience in financial and business matters, including experience as an investment advisor, as to be capable of evaluating the merits and risks of providing services on a Fee-Only basis and has not relied on any information provided by XYPN in making the decision to provide services on a Fee-Only basis.
- Member acknowledges and agrees that neither membership in XYPN nor use of any of the Materials guarantees Member profitability or clients. Member acknowledges and agrees that the success or failure of Member’s business is solely the responsibility of Member.
- Member acknowledges that their contact information may be shared with related entities and parties including sponsors.
- Member acknowledges that certain member benefits are only available to CFP® designation holders. Member agrees to alert XYPN when CFP® designation has been obtained to receive these benefits.
C. Additional Firm Members.
Planners who are associated with a Member as a partner or employee may apply to become a Member of XYPN. Fees for each additional Member are available on the XYPN website. XYPN, in its sole discretion, has the right to determine whether a planner meets the definition of a partner or employee. A Member who enters into an Additional Firm Member of XYPN has the same rights and obligations under this Contract as the Member with whom he or she is associated during that term of partnership or employment.
D. Membership Standards.
- All Members agree to abide by the following membership standards.
- Fee-Only – Members must operate on a fee-only basis. We follow the CFP Board’s definition of Fee-Only: “A certificant may describe his or her practice as “fee-only” if, and only if, all of the certificant’s compensation from all of his or her client work comes exclusively from the clients in the form of fixed, flat, hourly, percentage or performance-based fees.”
- Gen X/Gen Y Client Focus – Members must specialize in working with Gen X and/or Gen Y clients – While Members do not need to work exclusively with Gen X/Y clients, these clients must represent Member’s primary specialty.
- Financial Planning Centric – Financial planning must be at the core of Member’s service offering to clients. Most of XYPN’s advisors also offer investment management services, however financial planning is their primary service offering.
- Provide Services Virtually – Members must provide services on a virtual basis to clients. Members do not need to exclusively work virtually, simply provide virtual planning as an option to clients.
- Monthly Retainer &/or Hourly Service Model – Members must provide financial planning on a monthly retainer basis to clients, or have an hourly service offering that represents a significant portion of the work done for clients.
Member acknowledges and agrees that XYPN has developed or acquired certain unique techniques, procedures, sales methods, other business methods and practices, and products, including but not limited to, XYPN’s business model, software, training materials, audio and video recordings and other promotional materials, logo or name and products, materials and discussions available on XYPN’s intranet site (the Intranet), which are not generally known to the public and are confidential in nature, and which are and will continue to be of great and unique value to XYPN. Member has acquired limited rights to use such confidential information pursuant to the terms of this Contract and Member’s membership in XYPN. This confidential information shall not include information that (i) is or becomes generally available to the public at large or to other professionals in the same or similar business as XYPN other than as a result of disclosure in violation of this Contract, (ii) is available to Member on a non- confidential basis from a source other than XYPN, or (iii) was known to Member on a non-confidential basis prior to its disclosure to Member by XYPN.
Member agrees that all such confidential information he or she has acquired or will acquire as a result of his or her membership in XYPN will be kept and maintained as confidential, in complete secrecy, except to the limited extent necessary to render advice to clients or as otherwise provided in this Contract. Member agrees not to copy, duplicate or store on computer files any of the confidential information which may be disclosed to Member and shall not permit any other person to do so, except as expressly allowed under this Contract or as expressly permitted on written materials marked “May be duplicated for internal use of the Member only.” The terms of this provision shall survive termination of this Contract.
In the event Member breaches this Confidentiality provision of this Contract, XYPN shall be entitled, in addition to all other remedies available to it at law or in equity, to equitable relief, including specific performance and injunctive relief to enforce and provision hereof and to restrain Member from using or disclosing, in whole or in part, directly or indirectly, any confidential information. Member agrees that, in addition to other costs and damages resulting from a breach of these provisions, he or she shall pay XYPN’s attorneys’ fees and expenses.
F. Termination of Membership.
- XYPN may terminate a Member’s membership in XYPN at any time upon written notice to the Member without cause.
- Member must notify XYPN within five (5) days if such Member fails to meet any of the criteria for membership in XYPN as set forth in this contract hereof or otherwise ceases to conduct business as a Fee-Only Certified Financial Planner. Member’s membership in XYPN will be automatically terminated at such time as Member fails to meet all such membership criteria or ceases to conduct business.
- A Member may terminate such Member’s membership in XYPN at any time upon not less than thirty (30) days written notice to XYPN. Following termination by the Member, Member shall have no further responsibility for payment of registration fees to XYPN.
- Upon any termination set forth above, Member agrees to immediately cease using and to promptly return to XYPN any and all Materials provided to Member by XYPN, including but not limited to software, audio and video recordings, manuals, products and materials obtained from XYPN’s Intranet and any other written or electronic materials. Member further agrees to immediately cease the use of XYPN logo, the phrase “Member of The XY Planning Network, LLC” and any other name, logo or mark owned by or associated with XYPN. In the event Member fails to comply with this provision, XYPN shall be entitled to any and all remedies at law or in equity available to it, including but not limited to injunctive relief and indemnification as provided in this contract.
- Upon any termination of Member’s membership in XYPN for any reason, Member shall not be entitled to a refund of all or any part of Member’s registration fee.
- Member agrees to indemnify and hold harmless XYPN, its shareholders, officers, directors, employees, agents, successors and assigns (the “XYPN Indemnified Parties”) from and against any and all claims, demands, judgments, orders, losses, damages, costs, charges, liens, debts, fines, or penalties, including attorneys’ fees and consultant fees, arising from or relating to a breach of any of the provisions of this Contract by Member, Member’s membership in XYPN or Member’s use of XYPN’s name, logo, products or other materials; provided, however, that Member shall not be required to indemnify the XYPN Indemnified Parties for any claims to the extent such claims arise solely out of XYPN’s or any XYPN Indemnified Party’s gross negligence, willful misconduct or material breach of this Contract. The terms of this provision shall survive termination of this Contract.
- Member agrees to indemnify and hold harmless XYPN, its shareholders, officers, directors, employees, agents, successors and assigns (the “XYPN Indemnified Parties”) from and against any and all claims, demands, judgments, orders, losses, damages, costs, charges, liens, debts, fines, or penalties, including attorneys’ fees and consultant fees, arising from or relating to client service work. Members are entirely independent of XYPN and any claims arising from their actions as advisors are not the responsibility of XYPN and they indemnify XYPN against any costs arising from member legal actions they incur for themselves.
- This Contract shall be governed by and interpreted in accordance with the laws of the State of Montana, without regard to conflict of laws principles. For purposes of any action brought as a result of this Contract, the Member’s membership in XYPN or any other action between the parties, the parties hereby consent to, submit to the personal jurisdiction of and waive any objection to, the exclusive jurisdiction of state court in Gallatin County, Montana, and the United States District Court for the District of Montana. The parties further consent to and waive any objection that venue of any action brought as a result of this Contract or the Member’s membership in XYPN is proper in the above jurisdictions.
- The parties acknowledge that this Contract sets forth the entire understanding and agreement of the parties hereto as to the subject matter hereof, and supersedes all previous understandings, discussions or negotiations between the parties, written or oral, regarding such subject matter. Member acknowledges and certifies that Member has carefully read this Contract and understands that only those agreements contained herein are binding on the parties hereto.
- If one or more of the provisions of this Contract shall be held invalid, illegal or unenforceable, the remaining provisions shall not in any way be affected or impaired thereby. In the event any provision is held illegal or unenforceable, the parties shall use reasonable efforts to substitute a valid, legal or enforceable provision which, insofar as is practical, implements the purposes of the provision held invalid, illegal and unenforceable.
- Failure at any time to require performance of any of the provisions herein shall not waive or diminish a party’s right thereafter to demand compliance therewith or with any other provision. Waiver of any default shall not waive any other default. A party shall not be deemed to have waived any rights hereunder unless such waiver is in writing and signed by a duly authorized officer of the party making such waiver.
- To the maximum extent permitted by applicable law, in no event shall XYPN be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption or loss of business information) arising out of this Contract or Member’s membership in XYPN, including, but not limited to, the use of or inability to use the Materials, even if XYPN has been advised of the possibility of such damages.
- Member may not assign or sublicense his or her rights as a Member of XYPN or any of the Materials provided under this Contract without the express written permission of XYPN.