Consulting Services Acknowledgement
Your company (the “Company”) and CAPFINANCIAL PARTNERS, LLC, d/b/a CAPTRUST Financial Advisors, a North Carolina limited liability company, (“CAPTRUST”) have entered into a Consulting Services Agreement, (the “Advisory Agreement”) whereby the Company has retained CAPTRUST to provide certain investment advisory services directly to you (a “Designated Employee”).
Condition. Designated Employee acknowledges CAPTRUST would not be willing to provide the Services to him/her without this document and all Services provided to him/her shall be expressly subject to the terms of this document.
Services. CAPTRUST will provide specific investment advice to Designated Employee on a non-discretionary basis. When providing these Services, CAPTRUST will solely be making recommendations. Designated Employee has retained, and will exercise, final decision-making authority and responsibility for the implementation of any of CAPTRUST’s recommendations.
Information. Designated Employee will provide CAPTRUST with all pertinent information regarding his/her investment objectives, risk tolerances, asset allocation, historical performance, income and liquidity requirements, anticipated periodic withdrawal needs, if any, anticipated periodic contribution plans, if any, and any other relevant matters, all as may from time to time be reasonably requested by CAPTRUST. CAPTRUST may rely on the information provided without further verification. If Designated Employee’s needs or objectives change, he/she shall promptly provide the updated information to CAPTRUST, in writing. CAPTRUST shall not be responsible for any delay or failure in providing Services to the extent such delay or failure is caused or contributed to by Designated Employee’s failure to timely provide the necessary information to CAPTRUST.
Mutual Indemnification Obligation. Except to the extent attributable to a Breach (as defined below) of the person otherwise to be indemnified, each of CAPTRUST and Designated Employee shall indemnify and defend the other against all third party claims, losses, damages, and expenses (including reasonable attorneys’ fees, court costs, and other defense costs) that result from the indemnifying party’s: (i) breach of the terms in this document; or (ii) negligence or willful misconduct, (collectively, a “Breach”). For this purpose, all indemnification rights shall extend to the indemnified party’s owners, officers, directors, managers, employees, agents, heirs, and assigns. These indemnification obligations and rights shall survive a termination of the Services.
Limited Warranty/Disclaimer. CAPTRUST warrants: (i) it is qualified to provide the Services; and (ii) all of the Services will be performed with the degree of diligence, care, and skill that a prudent person rendering similar services would exercise under similar circumstances. Any information provided by CAPTRUST which has been obtained from outside sources is believed to be accurate, but may not have been independently verified by CAPTRUST and cannot be guaranteed. Investments are subject to various market, political, currency, economic, and business risks and may not always be profitable. CAPTRUST cannot guarantee financial results and any information provided by it regarding past performance cannot guarantee future results. There are no other warranties, express or implied (including any implied warranties of merchantability or fitness for a particular purpose), relating to the Services.
Liability Limitation. Except with respect to amounts payable by a party pursuant to its indemnity obligations under this document, no party, under any circumstances, shall be liable for any indirect, special, consequential, punitive or exemplary damages, or similar damages arising out of or relating to this document or the relationship of the parties under this document.
Binding Arbitration. Except as expressly provided below, all controversies and disputes between Designated Employee and CAPTRUST (including CAPTRUST’s affiliates) arising out of or related to the Services or their relationship, irrespective of the type of claim, shall be determined by binding arbitration under the then applicable rules of JAMS or the American Arbitration Association (as applicable, the “Association”), as elected by the party initiating the arbitration. The decision of the arbitrator shall be final and binding on all parties and a judgment upon the arbitrator’s award may be entered in any court having jurisdiction thereof. A party may initiate an arbitration proceeding by sending written notice of such (the “Arbitration Demand”) to the other party at any time prior to the date the dispute is barred by the applicable statute of limitations. That notice shall specify the nature of the dispute and the Association selected. The arbitration shall be held in or around Raleigh, North Carolina, if the Arbitration Demand is filed by Designated Employee, and shall be held in or around the city included in Designated Employee’s address on the last page of this document if the Arbitration Demand is filed by CAPTRUST. In each instance the arbitration shall be administered by the applicable Association’s nearest office. The arbitration shall be conducted by a single arbitrator mutually acceptable to the parties, or, if the parties are unable to agree upon a single arbitrator within 20 days of receipt of the Arbitration Demand, then by a single arbitrator appointed by the applicable Association in accordance with its rules. Unless the arbitrator awards otherwise, the cost of the arbitration shall be ratably borne by the parties to the proceeding.
Termination. The Services provided to Designated Employee shall terminate upon the earliest of: (i) the Company’s written election delivered to CAPTRUST; (ii) the effective date for termination of the Services Contract; and (iii) his/her termination of employment with the Company.
Miscellaneous. This document, along with the Services Contract, constitutes the entire and exclusive agreement between the parties on the Services and supersedes any and all prior agreements (whether written, oral, electronic, or otherwise) between the parties on that subject. No modification of this document shall be binding unless in writing, identified as a modification, and signed by the party against which it is sought to be enforced. In addition to any other available remedy, in any action or proceeding brought to enforce any provision of this document, or where any provision of this document is validly asserted as a defense in such action or proceeding, the successful party in such action or proceeding shall be entitled to recover reasonable attorneys’ fees incurred by it in such action or proceeding from the unsuccessful party. This document shall be deemed executed and completed in North Carolina and, except to the extent preempted by the Investment Advisers Act of 1940, as amended (or any rule, regulation, or order adopted by the SEC thereunder), shall be construed in accordance with the laws of North Carolina, without giving effect to its conflict of laws principles. In any court action seeking to challenge the enforceability of the binding arbitration provisions provided above or filed after a court of competent jurisdiction has declared such arbitration provisions to be unenforceable, the courts of North Carolina shall have exclusive jurisdiction over such legal actions, venue to be in Wake County, North Carolina. By his/her signature below, Designated Employee consents to such exclusive, personal jurisdiction and venue and waives any objection to such.