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This Employer Sponsored Retirement Account Service Agreement (“Agreement”) sets forth the terms and conditions under which ProNvest, Inc., doing business as Future Capital (“Future Capital,” “we,” “our,” “us”), an investment adviser registered with the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940, as amended(“Advisers Act”), provides investment advisory and management services (“Services”) to you, (“Client,” “you,” “your”). To the extent any Services are provided through our website located at https://futurecapital.com, you agree to be bound by the Terms of Use.
WHEREAS, Future Capital provides discretionary retirement account management services (“Services”) to retirement plan participants and operates a proprietary, Internet-based retirement education, planning, analysis, and advice system (the “Retirement Planning Tool”); and
WHEREAS, Employer offers the Plan(s) to its employees (“Employees”) and desires to offer Employees access to the Retirement Planning Tool and the Services;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Future Capital Services.
(a) Future Capital will provide Employees access to the Retirement Planning Tool and retirement planners to provide educational information at no cost to the Employee.
(b) Future Capital will provide Services with respect to an Employee’s Plan assets on the terms and conditions of the Employer Sponsored Retirement Account Service Agreement, attached hereto as Exhibit A, as may be amended from time to time by Future Capital (the “ESRA Service Agreement”).
(c) Future Capital will initiate Services under this Agreement as of the date specified under Schedule 2, attached. Future Capital will not provide Services to an Employee who declines receipt of such Services by providing written notice to Future Capital.
(d) Model portfolio strategies, including asset allocation and fund selection services, are provided by one or more independent investment advisers (“Independent Adviser”), selected by Future Capital in its sole discretion, who are registered under the Investment Advisers Act of 1940, as amended (“Advisers Act”). Future Capital may engage or terminate an Independent Adviser without notice to Employer, a Plan, or an Employee.
(e) Future Capital will, to the extent possible, implement the model portfolio on the Employee’s behalf based on the investment strategy recommendation generated in the Retirement Planning Tool. Future Capital will provide Employees, including Employees who do not receive Services, with access to the Retirement Planning Tool and other information regarding Future Capital products and services.
(f) In exchange its provision of Services, Future Capital will receive the fee set forth in the Future Capital Advisory Fee Schedule to the ESRA Service Agreement.
2. Employer Duties.
(a) Employer will provide or direct its Plan provider to provide all details of the Plan reasonably requested by Future Capital, including but not limited to (i) Plan name; (ii) the name, title, mailing address, phone number, fax number, and email address of the Employer representative responsible for the Plan and communication of all required information to Future Capital under this Agreement; (iii) the first name and last name for each Employee in the Plan; (iv) a monthly update to Employer’s list of Employees so that Future Capital may identify new hires and terminations; and (v) written notice of any changes to the Plan or to any of the information provided to Future Capital hereunder, to be provided immediately upon Employer’s notice of such change.
(b) Employer will provide each Employee, upon the Employee becoming eligible to receive Services, with a then-current copy of (i) Future Capital’s ESRA Service Agreement; (ii) ProNvest dba Future Capital’s Form ADV Part 2A, Form ADV Part 3, and Privacy Notice, each of which may be found at https://futurecapital.com/legal; and (iii) the Independent Adviser’s Form ADV Part 2A also available at www.adviserinfo.sec.gov. Future Capital will provide a copy the foregoing documents to Employer upon execution of this Agreement and, as applicable, a copy of any updates thereto.
(c) Employer agrees to the fund line-up requirements set forth in the attached Schedule 3, as may be updated by Future Capital from time to time if the Independent Adviser requires additional fund options to create model portfolios.
(d) Employer is prohibited from making any representations, warranties, or guarantees with respect to the specifications, features, or capabilities of the Retirement Planning Tool, Services, or any other product or service of Future Capital, except as set forth in any documentation provided by Future Capital.
(e) Employer represents and warrants that, when executed on behalf of a fiduciary of a Plan, this Agreement constitutes a legally valid and binding agreement enforceable as written with respect to each executing Plan and Employees who are participants or beneficiaries of such Plan.
3. Mutual Indemnification.
(a) Future Capital agrees to indemnify, defend and hold harmless Employer, its shareholders, directors, officers, agents, employees, successors, and assigns from and against any and all liability, claims, loss, injury, cause of action, and expense (including reasonable defense costs and legal fees) of any nature whatsoever arising out of or resulting from (i) the failure of Future Capital, its officers, agents, or employees, to perform any of the duties or responsibilities specified in this Agreement; and (ii) the negligence, gross negligence, or intentional misconduct of Future Capital, its officers, agents or employees.
(b) Employer agrees to indemnify, defend and hold harmless Future Capital, its shareholders, directors, officers, agents, employees, successors, and assigns from and against any and all liability, claims, loss, injury, cause of action, and expense (including reasonable defense costs and legal fees) of any nature whatsoever arising out of or resulting from (i) the failure of Employer, its officers, agents, or employees, to perform any of the duties or responsibilities specified in this Agreement; and (ii) the negligence, gross negligence, or intentional misconduct of Employer, its officers, agents or employees.
4. Confidentiality.
(a) In the course of Employer’s performance of its duties hereunder, Employer may communicate to Future Capital or its designees certain confidential and proprietary information concerning the Plan and Employees which is confidential or proprietary to the Employer (“Confidential Information”).
(b) Except as necessary to perform its obligations hereunder, Future Capital agrees not to disclose Confidential Information to any third party during the Term or at any time thereafter, without the prior written consent of the Employer; provided, however, that Future Capital will have the right to disclose any aggregate data that does not identify the Employer or Employee to whom it pertains.
(c) Confidential Information of Employer shall not include information which is (i) publicly known or which becomes publicly known through no fault of Future Capital; (ii) rightfully communicated to Future Capital free of any obligation of confidence with respect to such information (including, without limitation, Employee information used in accordance with the lawful consent of the Employee); or (iii) acquired or independently developed by Future Capital without violation of this Agreement.
(d) If Future Capital is compelled by law to disclose Confidential Information, Future Capital shall, to the extent legally permissible, provide Employer with notice of such compelled disclosure and reasonable assistance at Employer’s expense if Employer wishes to contest the disclosure. If Employer fails or waives its right to obtain a protective order or other remedy, Future Capital agrees to provide only that portion of the Confidential Information which it believes in good faith is required to be disclosed.
5. Trademarks. Each party acknowledges that the trademarks and trade names heretofore and hereafter used by the other party (“Trademarks”) are the exclusive property of such other party or its licensors. Each party agrees to use the other party’s Trademarks only as authorized in writing by such other party. A party may employ the other party’s Trademarks only in accordance with guidelines provided by the other party. Either party may, at any time upon written notice to the other party, terminate any right granted to the other party to use any Trademark of the granting party.
6. Term and Termination.
(a) The term of this Agreement will commence on the Effective Date, will continue for a period of one year (the “Initial Term”), and will thereafter automatically renew for additional one-year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless this Agreement is terminated in accordance with this Section 6.
(b) This Agreement may be terminated by either party:
(i) as of the last day of the Initial Term or any Renewal Term, as the case may be, upon at least 30 days’ prior written notice by the terminating party to the non-terminating party; or
(ii) upon a material default by the other party which is not cured within 30 days of receipt of written notice of such material default. Examples of a material fault include, without limitation: (1) either party ceasing to do business; (2) a change in the Plan which, in the sole judgment of Future Capital, substantially affects the ability of Future Capital to provide Services; and (3) Employer’s inability to secure compensation to Future Capital from the Plan for accounts for which Services are provided.
7. Amendments. This Agreement may not be amended or modified except by written document signed by both parties hereto.
8. Notices. Any notices provided for or permitted under this Agreement shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), or air courier guaranteeing overnight delivery, to the address written below the signature of the party. Notice will be deemed given upon delivery to the other party in accordance with this paragraph. The name and address to which notice is to be sent may be changed by written notice to the other party.
9. Assignment. Each party may assign its interests in this Agreement to a successor in interest to substantially all of its business or an affiliated company without the consent of the non-assigning party, provided that (a) the proposed assignee agrees in writing to assume all of the assigning party’s obligations and a copy of the written assumption agreement is forwarded to the non-assigning party; (b) the assigning party promptly notifies the non-assigning party of such assignment; and (c) such assignment is consistent with the Advisers Act.
10. Relationship. The relationship between Future Capital and Employer will be that of independent contractors.
11. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes all other prior agreements and understandings, both oral and written.
12. No Waiver. No waiver of any provision of this Agreement will be effective unless in writing and executed by the party waiving the right. Failure to properly demand compliance or performance will not constitute a waiver of a party's rights hereunder.
13. Governing Law and Venue. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Tennessee excluding its choice or conflict of laws principles. The parties hereto agree that any legal action or proceeding with respect to this Agreement and the services to be provided hereunder may only be initiated in the federal and state courts located in the State of Tennessee, Hamilton County. By execution and delivery of this Agreement, the parties hereto submit to and accept with regard to any such action or proceeding for themselves and in respect of their property, unconditionally, the jurisdiction of the aforesaid courts.
14. Severability. Without waiving a party's claim for breach of representation, if any provision of this Agreement in any way contravenes any law, the parties agree to revise such provision in such a manner as to meet the requirements of law and as nearly as possible to reflect the original intention of the parties. If any provision of this Agreement is held invalid or unenforceable by reason of any law, rule, order, or judicial decision, such determination will have no effect on the validity of the remaining provisions of this Agreement.
15. Valid Execution. Each party represents to the other that this Agreement constitutes a valid and binding obligation of such party and is enforceable against such party in accordance with its terms.
16. Counterparts. This Agreement may be executed with electronic or digital signature and in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
BY SIGNING OR ELECTRONICALLY ACCEPTING THIS SERVICE AGREEMENT (WHETHER THROUGH ELECTRONIC SIGNATURE, CLICKWRAP, BROWSEWRAP, OR OTHERWISE), YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT, THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOU CONSENT TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU SHOULD RETAIN A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE.
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