I hereby appoint American Estate & Trust to act as the Custodian of my account ("Custodian") and its designated assignee to act as the Third-Party Administrator of my account ("TPA"). This Application and Custodial Agreement ("Agreement") comprise my total agreement, and govern all aspects of my relationship, with Custodian and TPA. I acknowledge and agree that TPA is independent of Custodian and is not empowered or authorized to obligate or bind Custodian. Additionally, nothing in this Agreement shall be construed to render TPA an employee, partner, agent of, or joint venturer with, Custodian. Custodian shall not be responsible or liable under any circumstances for any representations or statements made by TPA.
1. Definitions.When used in this Agreement, the following capitalized terms shall have the meanings as set forth below. Additionally, all terms used in this Agreement that are not accordingly defined shall have the meanings as set forth else wherein this Agreement.
1.1 "Applicant"means the person making and executing this Agreement and, in the case of an employee-based plan, also the business entity that will be the sponsor of the plan.
1.2 "Associated Parties" means and includes (jointly and severally), with respect of a person or entity, its principals, owners, members, shareholders,partners, directors, officers, managers, employees, agents, associates,representatives, advisors, consultants, attorneys, accountants, contractors and subcontractors, and each of them.
1.3 "American Estate& Trust", solely for purposes of any legal duties and obligations of Custodian, means only American Estate & Trust, LC; and solely for purposes of any rights, benefits and other non-obligations of Custodian, means (jointly and severally) American Estate & Trust, LC and its controlled and controlling, direct and indirect, affiliates, parents,subsidiaries, divisions, and all Associated Parties acting through, under, or in concert with any of the foregoing, and each of their former, present, and future Associated Parties, in each case in their personal, corporate,authorized, representative or other capacities, and the predecessors,successors, assigns, personal representatives and heirs of any of the foregoing.
1.4 "TPA",solely for purposes of any legal duties and obligations of TPA, means only Financial & Retirement Resources, LLC; and solely for purposes of any rights, benefits and other non-obligations of TPA, means (jointly and severally) Financial & Retirement Resources, LLC and its controlled and controlling, direct and indirect, affiliates, parents, subsidiaries, divisions,and all Associated Parties acting through, under, or in concert with any of the foregoing, and each of their former, present, and future Associated Parties, in each case in their personal, corporate, authorized, representative or other capacities, and the predecessors, successors, assigns, personal representative sand heirs of any of the foregoing.
1.5 "Planner"means any salesperson(s) who assisted Applicant with this Agreement and with any general (non-legal/tax) information requested regarding the features or uses of a self-directed IRA.
1.6 "IRA"means any type of individual retirement account described in the Internal Revenue Code and related regulations, including a Traditional IRA, Roth IRA,SEP IRA and SIMPLE IRA.
1.7 "Dispute"means any dispute, claim or controversy concerning or related to the IRA being created (or its intended, pending, current or past investments) or the terms of this Agreement or the rights, obligations or duties created thereby or hereby.
&2. Backup Withholding. The Internal Revenue Service requires Applicant’s consent to the following certification regarding backup withholding. Under penalties of perjury, by signing this Agreement, Applicant hereby declares and certifies:
(A) that Applicant has provided Custodian with Applicant’s correct Social Security or Tax I.D. Number; and
(B) that Applicant is not subject to backup withholding because:1) Applicant is exempt from backup withholding; or
2) Applicant has not been notified by the Internal Revenue Service (IRS) that Applicant is subject to backup withholding as a result of a failure to report all interest or dividends; or
3) the IRS has notified Applicant that Applicant is no longer subject to backup withholding.Note: If Applicant has been notified by the IRS that Applicant is currently subject to backup withholding because of under reporting interest or dividends on your tax return, then Applicant is required to cross through statement (B) above and initial next to it (or if completing this Agreement electronically, to notify Custodian of such in writing).
3. Independence of Planner.Applicant acknowledges and agrees that the Planner may be independent of Custodian and/or TPA and, if so, is not empowered or authorized to obligate or bind Custodian or TPA. Additionally, nothing in this Agreement shall be construed to render Planner an employee, partner, agent of, or joint venturer with, Custodian or TPA. Custodian and TPA shall not be responsible or liable under any circumstances for any representations or statements made by Planner,unless Planner can be proven, by clear and convincing evidence, to be a W-2 employee of, and acting in the scope of duty for, Custodian or TPA.
4. Accuracy and Completeness.Applicant is responsible for the accuracy, completeness and genuineness of all data and information provided in this Agreement. Applicant hereby authorizes Custodian and TPA to conclusively rely on all such data and information, and Custodian and TPA shall be under no duty or obligation to authenticate the source, or verify the accuracy, completeness or genuineness of any such data or information other than as specifically required by law. Other than the data and information provided in this Agreement, Applicant considers no other data or information relevant or significant in or for the IRA. Applicant hereby acknowledges and understands that if there are any errors or omissions in the data or information provided to Custodian or TPA, then inaccurate, incomplete,and unreliable results will result.
5. Assignment.Applicant may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without Custodian’s prior written consent. Any attempted assignment or transfer in violation of the foregoing shall be void. Custodian and TPA shall have the right to assign or transfer this Agreement to any third party without notice to or consent by Applicant. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
6. Third Party Beneficiaries.There are no other third-party beneficiaries of this Agreement.
7. Final Agreement; Modification.This Agreement constitutes the final, complete and entire agreement between the Parties concerning the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, written ororal, between the Parties with respect thereto. Any modification, rescission or amendment of this Agreement shall not be effective except by a separate written instrument signed by Applicant and an authorized officer of Custodian.
8. Counterparts.This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but when taken together shall constitute one and the same agreement. Facsimile, scanned and photocopy signatures and/or initials,including those delivered electronically in .pdf format, shall be binding and effective and shall have the same force and effect as original signatures and/or initials.
9. Electronic Record and/or Electronic Signature. All Parties to this Agreement agree that this Agreement as well as any signature and/or initials by a Party may be in electronic form. Signatures and/or initials made through DocuSign, PandaDoc, Formstack, or similar technologies shall be deemed of acceptable form for manifesting such Party’s affirmative assent.
10. Privacy Notice.Custodian and TPA value Applicant’s privacy. Nonpublic information collected from Applicant will be protected using industry best practices. Personal information submitted to Custodian or TPA for the creation of a retirement plan account is protected by professional ethics and fiduciary rules and by this privacy policy. Client information is not disseminated to anyone outside Custodian's or TPA's home offices or to any party which is not legally related to or affiliated with Custodian or TPA, and in any case, no unauthorized party is permitted to receive Applicant’s information except as is necessary in the normal course of filling Applicant’s order. Under federal law Custodian or TPA may share information with certain providers that process and/or service Applicant’s account but only when such providers have agreed to uphold Custodian’s and TPA’s privacy policy. No client information is online or otherwise available to any party outside of the respective Applicant, Custodian or TPA. No client information is sold, rented, or traded. Current and past client information maybe legally obtained from Custodian or TPA only by: the respective client, a proper court order, or a proper governmental demand. Access to Applicant's non-public personal information is restricted to employees on a need-to-know basis. Custodian and TPA maintain physical, electronic, and procedural guidelines that comply with federal standards to guard Applicant’s non-public personal information. Custodian and TPA reserve the right to amend this privacy notice as required.
11. Plain Language.This Agreement shall be interpreted and construed in accordance with its plain language and no presumption or burden of proof shall be implied or employed against any person, including Custodian or TPA, as the drafter hereof.
12. Headings.Headings are for convenience of reference only and have no legal effect.
13. Severability. If any one or more of the provisions contained herein shall, for any reason, beheld to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provisions) had never been contained herein,provided that such invalid, illegal or unenforceable provisions) shall first be curtailed, limited or eliminated to the extent necessary to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied.
14. Waiver. Any delay in exercising or promise not to enforce any right under this Agreement shall not constitute a waiver and is unenforceable unless evidenced in a separate writing signed by the Party expressly making said waiver or promise.
15. Notices.All notices, requests and other communications hereunder shall be made in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email or five (5) days after deposit in the mail. Notices will be sent to a Party at its address set forth above or such other address as that Party may specify in writing pursuant to this Section.
16. Fraudulent Transfers.Applicant states and declares that the IRA will not be used to hinder, delay or defraud any existing creditors or governmental agencies that have a legal claim or interest in Applicant’s assets, or to hinder, delay or defraud creditors or governmental agencies that Applicant could reasonably expect to have a current or future claim. Applicant further states and declares that it intends to repay all existing creditors and otherwise retains the means to discharge all its debts as they come due.
17. Unknown and/or Conflicting Matters. Applicant expressly acknowledges and agrees that all of the facts and circumstances relating to the IRA may not be known or that the proper significance may not have been ascribed thereto by Applicant, but notwithstanding, Applicant desires to enter into this Agreement and further expressly agrees to protect, indemnify, defend and hold harmless Custodian and TPA, as provided herein, with full knowledge that there may be such unknown matters that might have materially affected the decision to enter into this Agreement. Applicant shall comply with all other agreements,instruments, entities, instruction, etc. related to the IRA. Applicant represents and warrants that this Agreement does not conflict with any other agreement to which Applicant is bound and obligated.
18. Developing Law.Applicant expressly acknowledges and agrees that federal, state and local laws and regulations with respect to retirement plans may change from time to time and thereby affect this Agreement and/or the validity or effectiveness of the IRA or its investments. Custodian and TPA, in their sole discretion, may send out notices of changes regarding the IRA. Such updates may incur an additional charge. Applicant agrees to notify Custodian or TPA of any address change so that notices may be timely received and also agrees that failure to comply with any legal requirements may result in disqualification of the IRA with serious legal and/or tax consequences. Applicant has sole responsibility for ensuring compliance with all laws, regulations and guidelines including any updates.Custodian and TPA are never obligated to provide any notices of updates but may choose to do so strictly as a courtesy to customers. Custodian and TPA have not, and will not, provide advice, representations, guarantees or warranties with respect to the applicability of laws, regulations or guidelines to Applicant’s particular situation.
19. Disclaimer.Custodian and TPA shall not be responsible or liable under any circumstances for any claims, costs, losses or damages of any kind or nature whatsoever,whether foreseeable or not, arising from, related to, or as a result of any actor omission to act by any party other than Custodian or TPA, and further shall not be responsible or liable in the event of any delays or irregularities in closing, settlement or transfer of funds or property to/from the IRA.
20. Warranty.EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, AND ANY INTELLECTUAL PROPERTY RELATING TO ANY OF THE FOREGOING, ARE PROVIDED ON AN "AS IS"BASIS. CUSTODIAN AND TPA MAKE NO WARRANTY OF ANY KIND IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, AND CUSTODIAN AND TPA HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
21. Indemnity and Hold Harmless. Applicant expressly agrees to protect, indemnify,defend, and hold harmless Custodian and TPA from and against any and all claims, costs, losses and damages, taxes, interest, and penalties or any other obligations (including without limitation, reasonable attorneys’ fees, court costs, and other litigation and dispute resolution costs), of every kind and nature whatsoever, sustained or incurred by Applicant or by Custodian or TPA in any way, arising from, related to or as a result of the IRA funding and/or operation; or this Agreement; or any act or omission to act by any party other than Custodian and TPA, whether in whole or in part, and in any way whatsoever.
22. Consequential or Incidental Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CUSTODIAN NOR TPA (OR THEIR RESPECTIVE OFFICERS,DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS)SHALL BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON WARRANTY,CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,NEITHER CUSTODIAN NOR TPA (OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS) SHALL BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID BY APPLICANT TO CUSTODIAN OR TPA FOR THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT.SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES SO THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
23. Third-Party Litigation and/or Dispute Resolution Expenses. Though uncommon, an IRA or its investments may become subject to a legal claim against the IRA, an IRA investment and/or its owner, which may require the involvement of Custodian and/or TPA. Applicant understands and agrees that Custodian and TPA are not required to use their own resources: (1) to satisfy any of the debts and/or claims against Applicant’s IRA or its investments; or (2) to pay for the defense of any such claims. If Custodian and/or TPA is named as a party to a third-party claim relating to Applicant’s account or investments, Applicant hereby authorizes Custodian and/or TPA, respectively, to: (a) have sole discretion in choosing their own attorneys and other professionals to assist with litigation or other dispute resolution processes; and (b) deduct from Applicant’s account any amount necessary to pay such costs and expenses related to the litigation or dispute resolution processes, including, but not limited to, all attorneys’ fees and costs incurred by Custodian and/or TPA, respectively, in the defense of such claim. If there is insufficient Uninvested Cash in Applicant’s account, Applicant will promptly reimburse Custodian and/or TPA, respectively,any remaining costs and expenses in such defense of the claim. If Applicant fails to provide such reimbursement, then Custodian and/or TPA is authorized to freeze and liquidate Applicant’s investments (in any or all of Applicant’s accounts held by Custodian) and/or initiate legal action so as to obtain full reimbursement for any such costs and expenses. Applicant also agrees to hold Custodian and TPA harmless for any default, surrender charges, investment losses, opportunity costs, and any other losses or penalties due to any liquidation of Applicant’s account assets in execution of this provision. For purposes of this paragraph, the terms Custodian and TPA include American Estate& Trust, LC and designated TPA, respectively, as well as their employees,agents, licensees, franchises, affiliates, joint ventures, assigns and/or business partners.
24. Dispute Resolution.If any Dispute arises, Applicant agrees that such Dispute shall first be negotiated in good faith with Custodian or TPA, as applicable, to come to are solution. If no resolution is reached within thirty (30) days of both parties receiving notice of the Dispute, Applicant agrees to then try in good faith to settle the Dispute by non-binding mediation administered by the American Arbitration Association under its Commercial Mediation Procedures (unless a procedure is otherwise provided herein) before resorting to arbitration,litigation or any other dispute resolution procedure. Such mediation shall occur in Las Vegas, Nevada with respect to any Dispute with Custodian and in Salt Lake County, Utah with respect to any Dispute with TPA or, if permission is provided by Custodian or TPA, via telephone. If not settled by mediation within another thirty (30) days, then Applicant agrees that such Dispute shall be resolved by final, binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules(unless a rule is otherwise provided herein), including the Optional Rules for Emergency Measures of Protection, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction consistent with this Agreement. Arbitration shall occur in Las Vegas, Nevada with respect to any Dispute with Custodian and in Salt Lake County, Utah with respect to any Dispute with TPA. Applicant hereby consents to such exclusive jurisdiction and waives objections to venue. If Applicant institutes legal action against Custodian or TPA in any State or federal court (bypassing this section’s mediation/arbitration dispute resolution requirements), Applicant understands and agrees that such action constitutes an intentional breach of this Agreement; Applicant waives all rights to any damages; and Applicant hereby agrees to reimburse immediately all expenses incurred by Custodian or TPA (including reasonable attorneys’ fees, court costs and reasonable wages for involved employees) incurred in the defense of such action.
24.1 In any action or arbitration instituted to resolve a Dispute, the prevailing party shall be entitled to reasonable attorneys’ fees and costs (but the costs of mediation shall be borne as provided under the applicable Commercial Mediation Procedures). If Applicant institutes any such action or arbitration and subsequently abandons it prior to final resolution (with abandonment defined as any 6 consecutive months of inactivity), then each defendant shall be deemed a prevailing party entitled to its reasonable attorneys’ fees and costs from the Applicant.
24.2 In no event shall the demand for mediation or arbitration be made after the date the institution of legal or equitable proceedings based upon such claim, dispute or other matter would be barred by the applicable statute of limitations.