Client Account Management Agreement
Last updated: October 12, 2022
This client account management agreement (this “Agreement”) sets out the terms and conditions under which Albert Investments, LLC (“Albert Investments”, “we”, or “us”), a registered investment adviser and wholly owned subsidiary of Albert Corporation (“Albert”), will provide ongoing discretionary management services with respect to the assets in your Albert Investments account (the “Albert Investments Account”). This Agreement will become effective, and you will become our client (“Client” or “you”), on the date you sign it. You will sign this Agreement by checking and tapping the “I Agree” button in the Albert App after you have scrolled through this Agreement, which will constitute your electronic signature. Your electronic signature will have the same binding effect as if you signed a paper agreement by hand.
In order to have Albert Investments manage your Albert Investments Account on an ongoing basis, you will need to open a securities brokerage account and complete a Customer Account Agreement with Albert Securities, LLC (“Albert Securities”), a registered broker dealer and affiliate of Albert Investments and Apex Clearing Corporation (“Apex”), an SEC registered broker-dealer. Albert Securities will operate as an introducing broker of Albert Investments. Albert Securities will provide opening, approval, monitoring, and supervision services. Albert Securities will provide self-directed brokerage services to you. Albert Securities will exercise no discretion in determining if and when trades are placed; it will execute securities transactions only at the direction of Albert Investments, for discretionary accounts, and at your direction, for non-discretionary accounts.
Securities transactions introduced by Albert Securities will be executed by Apex Clearing Corporation. In order to have Albert Investments manage your Albert Investments Account on an ongoing basis, you will need to sign this Albert Investments Account Management Agreement and the Customer Account Agreement with Albert Securities and Apex. Apex will provide custody, clearing, and settlement services, as well as recordkeeping and reporting services, to you. You can open your Apex account (the “Apex Account”) instantly on any mobile device by using our application, after you electronically sign these Agreements.
You and we agree:
1. ACCOUNT MANAGEMENT SERVICES
The Client hereby appoints Albert Investments, LLC as its investment adviser and grants us limited power-of-attorney with discretionary trading authority to manage and trade the assets in your Albert Investments Account (the “Services”). We accept that appointment under the terms and conditions set forth in this Agreement.
You acknowledge that: (i) Albert Investments will deliver the Services exclusively through a mobile application on one or more mobile devices (collectively, including any updates and replacement or supplement to them, the “Albert App”); (ii) Albert Investments will not provide Services in person, over the phone, or through any other medium, other than through the Albert App (see information concerning the Albert App on Albert’s Website); and (iii) with respect to Albert Investment Accounts where we have discretion to effect trades without your prior consultation or approval (“Discretionary Accounts”), you will not be entitled or able to hold securities in your Albert Investments Account other than the securities selected by Albert Investments; unless you also (or alternatively) select the “Non-Discretionary Account” investment option. You may contact Albert Investments by text or email during its business hours regarding technical questions about the Albert App.
Through the Albert App, you will provide us with certain information about yourself (including, among other things, your income, assets, investment goals, risk tolerance, time horizon and other data), and, upon evaluating your information, Albert Investments will propose an account management plan for you (your “Account Management Plan”). For Discretionary Accounts, you authorize us, without prior consultation, consent or approval, to give instructions to Albert Securities to implement securities transactions pursuant to your Account Management Plan. Our authority will include the ability to: (i) buy, sell and trade United States equity securities; (ii) invest in and trade ETFs; (iii) periodically rebalance your portfolio; and (iv) implement all of the above based on Albert Investments’ systematic (algorithmic) portfolio model. For Non-Discretionary Accounts, we will implement securities transactions based on direction or approval by you.
You also authorize us to deliver to Albert Securities and Apex (or any other securities brokerage firm executing transactions on behalf of your Albert Investments Account) a copy of this Agreement as evidence of the authority of Albert Securities and Apex to act for and on behalf of your Albert Investments Account.
You acknowledge that Albert Investments does not provide (i) comprehensive financial planning services, and its Services are not a complete investment program; (ii) tax, accounting or legal advice; and (iii) custody of your Albert Investments Account assets. You are encouraged to consider additional asset classes, strategies and investments to supplement your overall plan; and to consult with your tax advisor regarding any tax consequences related to your Account Management Plan.
Albert Investments will be responsible for the review and evaluation of your current financial information that you provide to us and will make its Account Management Plan recommendation based on that information. It is your responsibility to update your information if your situation changes. You are solely responsible for evaluating the merits and risks associated with any investments and the Account Management Plan recommended by Albert Investments.
2. ACCOUNT REQUIREMENTS
There is currently no minimum investment amount required to create an Albert Investments Account, however Albert Investments reserves the right from time to time to require a minimum investment to create an account. The Client retains sole ownership of the Albert Investments Account (i.e., the right to withdraw securities or cash and receive transaction confirmations). You may make additions to and withdrawals from your Albert Investments Account at any time through the Albert App, subject to Albert Investment’s right to terminate your account. Additions must be in cash. You may withdraw Albert Investments’ Assets on notice to Albert Investments, subject to the usual and customary securities settlement procedures and the processing periods for cash deposits, which may be up to five business days or longer. However, Albert Investments designs its portfolios as long-term investments and the withdrawal of assets may impair the achievement of your investment objectives. Further, when securities are withdrawn, you may be subject to tax consequences.
You confirm that all of the information you have provided through the Albert App is true, accurate and complete in all respects. You agree to notify us promptly of any change in information that may be relevant to your financial circumstances. You understand that Albert Investments may contact you via the Albert App, email or through any other means deemed appropriate, to request that you review your Account Management Plan to determine whether it should be modified. You agree to review your Account Management Plan for accuracy and provide material updates in a timely manner.
3. FUNDING THE ACCOUNT
You will be required to connect your Albert Investments Account to your bank or other account from which you intend to transfer money or permit Albert to make such transfers on your behalf, to fund the Albert Investments Account (the “Funding Account”). You may connect your Funding Account by entering into the Albert App true, accurate, current, and complete information about your Funding Account, including either the American Bankers Association routing number and account number for the Funding Account or the online login credentials for the Funding Account. You acknowledge that your Albert Investments Account will not be connected to your Funding Account unless and until you receive a confirmation through the Albert App indicating you have successfully connected the Albert Investments Account and Funding Account. You further agree that, if your Funding Account is closed or restricted after you connect it to the Albert investments Account, you will have no right to make additions to or withdrawals from your Albert Investments Account unless and until: (i) the Funding Account is reopened or unrestricted; or (ii) you successfully connect a different and adequately funded Funding Account to the Albert Investments Account.
4. FEES & EXPENSES
Program Fee. Albert Investments offers the Services through the Albert Wrap Fee Program (the “Program”). Please carefully read information about the Program. Under the Program, your fee for the combined investment advisory, management, brokerage, custodial, and other related services (the “Wrap Program Fee”) will be fully absorbed by Albert Investments; meaning that you will only pay the fee for Albert Genius (as more fully described in Part 2A of the Albert Investments Form ADV). The Program Fee does not include the Other Fees described below, payment for which you will be responsible.
Other Fees. You understand that Albert Investments will invest in shares of certain exchange traded funds (“ETFs”), and/or pools of ETFs, and certain other securities for your Albert Investments Account in accordance with your Account Management Plan. As a shareholder in these ETFs, you will indirectly bear a share of the management fees and other expenses of such ETFs as disclosed in each ETF’s prospectus. These expenses are charged by the ETFs’ sponsors or managers, and certain service providers in the normal course of business and are reflected in the share value of each of the individual ETFs. These expenses are separate and apart from your Wrap Program Fee; nor are they included in the fee you pay for Albert Genius. You will receive from us a notification when ETFs (or other securities) are purchased for your Albert Investments Account. You agree that it is your responsibility to read the applicable prospectuses in connection with your decision to invest.
Additionally, you may incur certain other charges imposed by third-party financial institutions. These additional costs may include but are not limited to wire transfer fees, paper statement fees, and bounced check fees, transfer taxes, wire transfer and electronic fund fees. You understand that these fees are not included in the fee that you pay for Albert Genius and agree that you are responsible for payment of these other fees and charges as well.
Fee Payment. By signing this Agreement, and notwithstanding Albert Investments’ agreement to fully absorb the Wrap Program Fee, you authorize Albert Investments to direct Apex to deduct any fees applicable to your Albert Investments Account directly from your Account (the “Applicable Account Fees”), in accordance with applicable custody rules. It is your responsibility to verify the accuracy of the calculation of the Applicable Account Fees. In the event your Albert Investments Account does not include a cash balance adequate to pay the Applicable Accounts Fees, you authorize Albert Investments to determine which assets in your Albert Investments Account will be sold, and to liquidate these assets, without notice to you, to pay the Applicable Account Fees and any other fees due under this Agreement and/or terminate your access to our Services.
Payment of fees generally will be made first from Albert Investments Account assets in cash, next from the liquidation of cash equivalents, and finally from liquidation of securities in the Albert Investments Account. Until you terminate the Albert Investments Account, you will be deemed to reaffirm continuously your agreement that the Custodian (defined below) may deduct the Applicable Account Fees from your Albert Investments Account.
Discretion. Albert Investments’ fees are not negotiable. Albert Investments reserves the right to waive all or any portion of the Fee for any period for any Client or groups of Clients, at its sole discretion. It is Albert Investments’ sole discretion in determining whether any Client or potential client may receive lower fees, and Albert Investments shall not be liable to you or any other party in connection with any such decision. If Albert Investments lowers any fees for any Client at any time, it has no obligation to continue to do so, and may cancel such benefit at any time.
5. CUSTODY OF ASSETS AND ACCOUNT STATEMENTS
Apex Clearing Corporation, a “qualified custodian” under Rule 206(4)-2 of the Investment Advisers Act of 1940, as amended (the “Advisers Act”), will have possession and provide safekeeping of your assets in the Albert Investments Account (“Apex” or the “Custodian”). As noted above, Albert Investments will not act as the custodian for the assets in your Albert Investments Account. You will complete the necessary application materials to open an account with the Custodian after executing this Agreement. All Albert Investments Account transactions will be effected by a payment to, or delivery by, Apex of all cash and/or securities due to or from the Albert Investments Account. Albert Investments is not permitted to instruct the Custodian to deliver funds or securities to ourselves, except for payment of our fees as explained above.
Apex will send you electronic notice of all confirmations of securities transactions and provide account statements on a periodic basis, identifying the amount of funds and of each security in the Albert Investments Account at the end of the period and setting forth all transactions during that period. You are responsible for reviewing the confirmations and statements provided and reporting any discrepancies in the information directly to Apex. You authorize us to instruct Apex to send us trade confirms and monthly statements showing all transactions occurring in your Albert Investments Account during the period covered. We will not be responsible for any loss incurred by reason of any act or omission by the Custodian, whether in its capacity as a custodian or a broker/dealer; provided, however, that we will make reasonable efforts to require that it perform its obligations with respect to the Albert Investments Account. All transactions concerning the Albert Investments Account shall be binding upon the Client and are at the Client’s sole risk.
6. BROKERAGE AND TRANSACTION EXECUTION
To participate in the Albert Wrap Fee Program, you must direct all brokerage transactions for your Albert Investments Account to Albert Securities and Apex. Upon the Client’s execution of this Agreement and the Customer Account Agreement, Albert Securities will accept all orders as the introducing broker; and Apex shall act as the executing broker-dealer who will execute all orders on behalf of the Albert Investments Account and Albert Securities Account. You cannot designate or select a different introducing and executing broker-dealer than Albert Securities and Apex, respectively, for trade execution.
All orders are accepted and executed as market not held orders. Client understands not held is an order handling designation that gives Albert Investments time and price discretion to secure the best possible execution for the Client without being held to the security’s current quote. If Albert Investments places a market not held order on Client’s behalf, during market hours or outside market hours, to be executed at a later time, Client agrees to pay or receive the prevailing market price at the time such order is executed, typically at or near the beginning of the next market open. The prices of securities at market close and after market hours may not reflect the prices at the next market open. Due to high volatility of a security, you may receive an inferior price at market open which may result in your order being only partially executed or not at all.
Client understands that all orders for the Albert Wrap Fee Program will be submitted in terms of U.S. dollars, not in terms of shares of the securities. As a result of U.S. dollar-based transactions, you may hold fractional shares of the securities and understand that fractional shares may not be marketable outside the Albert Investments account or transferrable to another brokerage account. Client agrees that Albert Investments will not be held responsible for any losses or consequences of fractional share positions resulting from U.S. dollar-based transactions. Albert Investments trades all customer fractional share orders on a Not Held basis. Not Held is an order handling designation that gives Albert Investments time and price discretion to secure the best possible execution for you without being held to the security’s current quote. This does not change the ownership of Client’s shares, how Client’s shares are held in Client’s account, or the execution speed for fractional share orders. If Client does not wish for the order to be handled on a Not Held basis, Client should not engage in Fractional Trading.
Fractional shares are not transferable or certificated. Client may not have voting rights for the fraction of a share owned. If Client closes the account or transfers the account to another firm, the fractional share will need to be liquidated, resulting in potential commission charges which may match the value of the fractional share if less than our minimum commission.
Albert Investments anticipates that Apex will provide “best execution” for the Client. However, in the event Albert Investments determines that Apex may not at any time provide “best execution” in its capacity as the executing broker-dealer, Albert Investments reserves the right to select a different broker/dealer which we think could provide “best execution” with respect to such transaction. “Best execution” includes the amount of broker/dealer fees or transaction costs that will be charged to the Albert Investments Account in connection with any trade, but it may also include other criteria and benefits. As such, Albert Investments may retain Apex as the executing broker/dealer with respect to the Albert Investments Account even if its broker/dealer fees are not the lowest fees which could be charged for such transactions, in consideration for other benefits that the broker/dealer offers.
Nasdaq, in its sole discretion, may from time-to-time make modifications to its system or the information provided. Such modifications may require corresponding changes to be made to the Services. Changes or the failure to make timely changes by Albert may sever or affect your access to or use of the information. Nasdaq shall not be responsible for such effects. Nasdaq does not endorse or approve any equipment, Albert or the services.
Nasdaq and its third-party information providers make no warranties of any kind - express, implied or statutory (including without limitation, timeliness, truthfulness, sequence, completeness, accuracy, freedom from interruption), any implied warranties arising from trade usage, course of dealing, course of performance or the implied warranties of merchantability or fitness for a particular use or purpose or noninfringement.
8. ACKNOWLEDGEMENTS, REPRESENTATIONS AND COVENANTS
You understand, agree and confirm to Albert Investments that:
- Authority. You have the full legal power, authority and capacity to enter into this Account Management Agreement. This Account Management Agreement constitutes a legal, valid and binding obligation on you with respect to your Albert Investments Account.
- The Program is appropriate. You have evaluated the Program and determined that it is appropriate for you, taking into account all relevant factors, including, your need for investment advice, the amount of trading you expect to make in the account compared to accounts where fees are transaction based, your risk tolerance and investment experience, your particular financial needs and circumstances, and the fees charged for the account versus other types of investment accounts. You understand that, depending on the circumstances, the brokerage and execution services offered through this program may be available for less money (but without the ongoing advisory services) through a commission-based brokerage account. You acknowledge that your Albert Investments Account is not intended solely as a cash management vehicle.
- Investment Risks. You are aware of and willing to assume the risks involved with investing your Albert Investments Account in the Account Management Plan. You understand that Albert Investments does not guarantee the future performance of your assets in the Albert Investments Account or any specific level of performance, the success of any investment recommendation or the success of our overall management of your Albert Investments Account. Our investment recommendations are subject to various market, currency, economic, political and business risks. Investment decisions will not always result in profitable outcomes. You may experience losses, including potentially a complete loss of your investment. You acknowledge that you have read the additional risk disclosures in Albert Investments’ Wrap Fee Program Brochure.
- United States Resident. You are a US person, which includes a US resident alien, have a valid US residential mailing address and have a valid US taxpayer identification number (or social security number).
Limitation of Liability. You understand that, except as otherwise provided by law, neither we nor any (a) of our officers, partners or directors (or persons performing similar functions); (b) of our employees and representatives; or (c) persons directly or indirectly controlling us or controlled by us (as defined in the Advisers Act) (together, our “Affiliates”); or (e) any of our agents, including any service providers, including, without limitation, Nasdaq, Inc., Nasdaq companies, including each of their officers, directors, employees and agents, and Nasdaq, Inc. subsidiaries (together with our Affiliates, the “Indemnified Persons”) will be liable for (i) any obligations, costs, fees, losses, liabilities, claims, judgments, actions, damages and expenses, including but not limited to attorneys’ fees, expenses and court costs (“Losses”) paid, suffered, incurred or arising from the Services or any investment decision made or other action taken or not taken in good faith by us with the degree of care, skill, prudence and diligence that a person acting in a fiduciary capacity would use under the circumstances; (ii) any Losses arising from adhering to your instructions; or (iii) any act or failure to act by Albert Securities, Apex, or any other third-party; or (iv) any failures arising out of the use of the Albert App. If the assets we are managing in your Albert Investments Account under this Agreement are only a portion of your total assets, we will not be responsible for (a) any of your assets that we are not managing under this Agreement; or (b) diversifying all of your assets. Nothing in this Agreement will waive or limit any rights that you may have under federal and state securities laws for the advisory services you receive under this Agreement. You acknowledge and agree that the Indemnified Persons are each a third-party beneficiary of this Section 8(E), and that such Indemnified Persons are each otherwise an express third-party beneficiary of Section 8(E), entitled to enforce the terms hereof as if it were an original party hereto.Except as may otherwise be set forth herein, Albert and its Affiliates shall not be liable to you for indirect, special, punitive, consequential or incidental loss or damage (including, but not limited to, trading losses, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation, cost of cover or other indirect loss or damage) of any nature arising from any cause whatsoever, even if Albert and its Affiliates have been advised of the possibility of such damages.Nasdaq shall not be liable to you for any unavailability, interruption, delay, incompleteness or inaccuracy of the information that lasts less than four (4) continuous hours during the time that Nasdaq regularly transmits the information or if the information is materially affected for less than four (4) continuous hours during the time that Nasdaq regularly transmits the information.If Nasdaq is, for any reason, held liable to you, whether in tort or in contract, the liability of Nasdaq within a single year of this Agreement is limited to an amount of your damages that are actually incurred by you in reasonable reliance (combined with the total of all claims or losses of Albert claiming through, on behalf of or as harmed by you) and which amount does not exceed $500.This section shall not relieve Nasdaq or you from liability for damages that result from either party’s own gross negligence or willful tortious misconduct or from personal injury or wrongful death claims.You understand and agree that the terms of this section reflect a reasonable allocation of risk and limitation of liability.
Indemnification. You will defend, indemnify and hold all of the Indemnified Persons harmless from any and all Losses sustained by any Indemnified Party arising out of or in connection with (i) any misrepresentations or omissions made by you in this Account Management Agreement; (ii) any inaccuracies in the information that you provide to us or any other Indemnified Party; (iii) any instructions that you provide to us or any other Indemnified Party in connection with your Albert Investments Account; (iv) any noncompliance by you with the terms and conditions hereof; (v) any third-party actions related to your receipt and use of the information, whether authorized or unauthorized under this Agreement.You and Nasdaq warrant and represent and will indemnify and hold harmless (and in every case, Nasdaq shall be permitted to solely defend and settle) the other party (including Nasdaq) and their officers, directors, employees and other agents, against any claims or losses arising from, involving or relating to a claim of infringement or other violation of an intellectual property right by the indemnifying party, its actions or omissions, equipment or other property. This right is conditioned on the indemnified party giving prompt written notice to the indemnifying party (as does not prejudice the defense) of the claims or losses and providing cooperation in the defense of the claims or losses (without waiver of attorney-client, work-product or other legal privilege, or disclosure of information legally required to be kept confidential).
- Non-Exclusivity. You acknowledge that we may, and will, render investment advice to others. We and our Affiliates may take the same, similar, or different positions in specific investments for our other clients’ and for our own accounts, as we do for you. We have no obligation to purchase or sell, or to recommend for purchase or sale, any security which we or our Affiliates may purchase or sell for our other clients’ and our own accounts.
- Proxies and Corporate Actions. We will not vote proxies or respond to corporate actions with respect to holdings in your Albert Investments Account. Apex will provide notice and opportunity for you to vote or respond as appropriate.
You may terminate this Account Management Agreement at any time and the termination will be effective upon our receipt of notification of the termination. You understand that Albert Investments may also elect to terminate your Albert Investments Account at any time, for any reason or no reason, in its sole discretion, upon notice to you. To the extent that the advisory relationship is terminated, you understand that all features and privileges associated with the Albert Investments Account will be cancelled and cease.
Termination of this Agreement will not affect (a) the validity of any action previously taken under this Agreement; (b) liabilities or obligations from transactions initiated before termination of this Agreement; or (c) your obligation to pay us fees that have already been earned under this Agreement. If you terminate this Agreement, you will promptly pay us any unpaid but earned Applicable Account Fees.
A Client’s death, disability or incompetence will not automatically terminate or change the terms of this Agreement. However, your executor, guardian, attorney-in-fact or other authorized representative may terminate this Agreement by giving us proper written notice. We will not be responsible for any transfers, payments or other transactions in the Albert Investments Account made at the direction of a former account holder or incapacitated account holder before we actually received and had a reasonable amount of time to act on such official written notice. Following receipt of an official written notice, we may require additional documents and reserve the right to retain the assets in and/or restrict transactions in the Albert Investments Account in our sole discretion. Any former account holder and the estate of any deceased or incapacitated account holder will remain jointly and severally liable for any losses in the Albert Investments Account arising out of or relating to transactions initiated before we actually received and had a reasonable amount of time to act on such official written notice.
10. Legal Capacity
If this Agreement is established by the undersigned Client, or the Client’s authorized representative in a fiduciary capacity, the Client hereby certifies that he/she is legally empowered to enter into or perform this Agreement in such a capacity. The Client represents that he or she is over 18 years of age and no person shall use or attempt to use the Services unless he or she is over 18.
Albert Investments may amend this Account Management Agreement at any time. You acknowledge that Albert Investments will generally not be required to obtain your consent for any amendments to the Account Management Agreement or changes to the Program.
12. NOTICES AND COMMUNICATIONS
Our opening and maintaining your Albert Investments Account is conditioned on your agreement to receive all notices, documents, and other information related to your account and investments electronically. You agree that when we send these email notices to you that they constitute delivery to you of the information or documents referred to in the email you provided, even if you do not actually access the information or documents on our website.
This consent will be effective immediately and will remain in effect unless revoked by you, as described in the Section entitled E-sign Consent To Use Electronic Records, Disclosures And Signatures, below.
You agree to keep a working email address and will update your account information immediately if your email address or other contact information changes. If you do not maintain an email address that is working and accessible to us, and we believe we are required to provide you with paper notice or documents of particular matters or actions, and we do so, we may charge you the cost of such delivery. You acknowledge that you may incur costs (such as online service provider charges or printing costs) associated with the electronic delivery of information to you.
Any notice given to you in connection with this Agreement will be deemed delivered if personally delivered or sent by (i) U.S. mail, certified or registered, or overnight courier, postage prepaid with return receipt request, and addressed, if to you, at the address indicated in your Albert Investments Account information, or (ii) electronically to the address to which your Account communications are sent or (iii) posted to the Albert App or Albert Website.
If any provision of this Agreement is deemed to be invalid or unenforceable or is prohibited by the laws of the state or jurisdiction where it is to be performed, this Agreement will be considered divisible as to such provision and such provision will be inoperative in such state or jurisdiction. The remaining provisions of this Agreement will be valid and binding and of full force and effect as though such provision was not included.
14. GOVERNING LAW
This Agreement will be governed by and construed in accordance with the U.S. Federal Arbitration Act and the laws of the State of California. Any action, suit or proceeding arising out of, under or in connection with this Agreement seeking an injunction or not otherwise submitted to arbitration pursuant to this Agreement will be brought and determined in the appropriate federal or state court in the State of California and in no other forum. The parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and agree to take any and all action necessary to submit to the jurisdiction of such courts in any such suit, action or proceeding arising out of or relating to this Agreement. No failure by us to exercise any right, power, or privilege will operate as a waiver thereof. No waiver of any breach of this Agreement by you will be deemed to be a waiver of any subsequent breach.
15. EFFECTIVE DATE
This Agreement will be effective on your acceptance of its terms electronically by tapping the “Submit Application” button in the Albert App.
To the extent permitted by law, any dispute, claim or controversy arising out of or relating to the advisory services provided by Albert Investments, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate (each a “Dispute”), shall be resolved solely by binding, individual arbitration rather than a class, representative or consolidated action or proceeding. You and Albert Investments each further agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that each party is waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
- Exceptions and Opt-Out. As limited exceptions to mandatory arbitration as set forth in this Section: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) the parties each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at email@example.com or by regular mail at Albert Investments’ mailing address within thirty (30) days following the date you first agree to the terms of this Agreement.
- Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in Los Angeles County, California, unless the parties both agree in writing to a different location. You and Albert Investments agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of the terms of this Agreement.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Effect of Changes on Arbitration. Notwithstanding anything in this Agreement, if Albert Investments changes any of the terms of this Section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within thirty (30) days of the date such change became effective, as indicated in the “Effective Date” above or in the date of Albert Investments’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Albert Investments in accordance with the terms of this Section as of the date you first accepted the terms of this Agreement (or accepted any subsequent changes, supplements or amendments to this Agreement).
- Class Action Waiver. YOU AND ALBERT INVESTMENTS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if our Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If any of the specific provisions within this Section are found to be unenforceable, the remainder of this Section shall not be affected thereby, and, to this extent, the provisions of this Section shall be deemed to be severable.
17. E-SIGN CONSENT TO USE ELECTRONIC RECORDS, DISCLOSURES AND SIGNATURES
In this ESIGN Consent to Use Electronic Records, Disclosures and Signatures ("Consent"), please remember that "you" and "your" refer to the person who is establishing an account, as well as any future accounts, with us, and "we", "us" and "our" refer to Albert Investments, LLC ("Albert Investments” and/or the “Company”). “Communications” means each disclosure, notice, agreement, fee schedule, statement, record, document, and other information we provide to you, or that you sign or submit or agree to at our request. By opening an account with us (each an “Account” or an Albert Investments Account) and then accessing your Account, you are consenting to the following terms:
- Your consent to use and delivery of electronic records and disclosures. In our sole discretion, the Communications we provide to you, or that you sign or agree to at our request, may be delivered to you in electronic form (“Electronic Records”). You specifically agree to the electronic delivery (i.e., the receipt and/or obtaining) of Electronic Records and Disclosures from the Company. The term "Electronic Records" includes, but is not limited to, any and all current and future notices and/or disclosures, prospectuses, statement of additional information, annual and semi-annual reports that various federal and/or state laws or regulations require that the Company provides to you, as well as such other documents, statements, data, records and any other communications regarding your relationship to the Company. You acknowledge that, for your records, you are able to retain the Company’s Electronic Communications by printing and/or downloading and saving this Consent and any other agreements and Electronic Communications, documents, or records that you agree to using your ESignature (as defined below). You accept Electronic Communications provided via your account with the Company as reasonable and proper notice, for the purpose of any and all laws, rules, and regulations, and agree that such electronic form fully satisfies any requirement that such communications be provided to you in writing or in a form that you may keep.
The following are examples of
Electronic Records and Disclosures
covered by your Consent:
- Agreement with Albert Investments and all amendments, notices and other agreements that supplement this Agreement (the “Client Agreement”);
- Customer Brokerage and Custody Agreement with Apex Clearing Corporation (“Apex”) and all amendments, notices and other agreements that supplement the Customer Brokerage and Custody Agreement (the “Customer Brokerage and Custody Agreement”);
- Any other agreements pertaining to future accounts that you may establish with Albert Investments and/or Apex and all amendments, notices and other agreements that supplement those agreements;
- Statements and reports, including without limitation account statements, fee calculation statements, transactions histories, trade confirmations, tax forms, reports and/or performance reports, prospectuses, statement of additional information, annual and semi-annual reports of mutual funds and exchange traded funds (ETFs).
- Your acknowledgement and consent to Electronic Signature. You agree that your use of a touch screen, keypad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide the Company with instructions, or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature (hereafter referred to as "E-Signature"), acceptance and agreement as if actually signed by you in writing. You acknowledge you are signing this Consent, the Agreement and the Customer Brokerage and Custody Agreement with an E-Signature. You agree your E-Signature is the legal equivalent of your manual signature on this Consent, the Agreement and the Customer Brokerage and Custody Agreement. You consent to be legally bound by this Consent's terms and conditions. You also agree that no certification authority or other third-party verification is necessary to validate your E-Signature and that the lack of such certification or third-party verification will not in any way affect the enforceability of your E-Signature or any resulting contract between you and the Company. You represent that you are authorized to execute this Consent, the Agreement and the Customer Brokerage and Custody Agreement for all persons who own or are authorized to access any of your accounts and that such persons will be bound by the terms of this Consent, the Agreement and the Customer Brokerage and Custody Agreement.
- Your Agreement as to Validity of Digital Versions. You also agree that the electronically stored copy of this Agreement is considered to be the true, complete, valid, authentic and enforceable record of the Agreement, admissible in judicial or administrative proceedings to the same extent as if the documents and records were originally generated and maintained in printed form.
- Revocation of electronic delivery. This Consent will apply on an ongoing basis unless you withdraw this Consent. You have the right to withdraw the Consent to Electronic Records and the use of your E-Signature at any time. You acknowledge that we reserve the right to restrict or terminate your access to Albert Investments, including without limitation the Albert App (“App”), if you withdraw Consent to Electronic Records and E-Signatures. If you wish to withdraw your Consent, contact us at email@example.com.
Hardware, software and operating system.
To receive the Electronic Records, you will need a mobile device
with a compatible operating system and a connection to the Internet,
and you will need access to a printer or the ability to download
information to keep copies for your records. Changes, if any, to
these system hardware and software requirements will be updated in
the App. You must periodically refer to the App for current system
requirements. By establishing and then accessing an Account, you are
indicating that you have the capability to access the agreements and
other information, including the disclosures, and download or print
copies for your records. You are responsible for the installation,
maintenance, and operation of the mobile device, browser and
software. The Company is not responsible for errors or failures from
any malfunction of your computer, browser or software. The Company
is also not responsible for computer viruses or related problems
associated with use of an online system. The following are the
minimum hardware, software and operating system requirements
necessary to use the Albert App, Albert Investments, and receive
- a Current Version of a mobile operating system we support,
- a connection to the Internet,
- a Current Version of a program that accurately reads and displays PDF files (such as Adobe Acrobat Reader), and
- a mobile device and an operating system capable of supporting all of the above.
- You will also need a printer if you wish to print out and retain records on paper, and electronic storage if you wish to retain records in electronic form You must also have an active email address. By “Current Version,” we mean a version of the mobile software that is currently being supported by its publisher. It is recommended that you print a copy of this Agreement for future reference.
By tapping the “Submit Application” button in the Albert App, you acknowledge that you (on your own behalf and any joint account holder’s behalf):
- agree to arbitrate any controversies that may arise under this Agreement;
- have reviewed the Account Management Plan relating to your Albert Investments Account and agree to, and accept, the contents of the Account Management Plan and it is incorporated herein by reference;
- have read, understand and agree with all of the terms and conditions set forth in this Agreement;
- understand that tapping “Submit Application” in the Albert App is the legal equivalent of manually signing this Agreement, and you will be legally bound by its terms and conditions.
- ICE DATA CONNECTIVITY & FEEDS, INC. (“SUPPLIER”) AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS OR ANY OTHER MATTER AND SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY ERRORS, OMISSIONS OR MALFUNCTIONS IN THE SERVICES.
- You acknowledge that all market data, information, content, and other information derived therefrom, that is generated by the Supplier or distributed or made available to the Supplier by its affiliates and/or third-party providers (“Supplier Services”) are intended for use by institutional investors, registered brokers, professionals and others of similar sophistication and experience. For additional clarity, this acknowledgment does not prohibit Albert Investments and its affiliated businesses from any permitted use(s) of data feeds that allow for external redistribution.
- You accept responsibility for, and acknowledge that you exercise your own independent judgment in, your selection of the use or intended use of such Supplier Services and any results obtained. Nothing contained herein shall be deemed to be a waiver of any rights existing under applicable securities law.
- You shall indemnify Supplier and its suppliers against and hold Supplier harmless from any and all losses, damages, liability, costs, including attorney's fees, resulting directly or indirectly from any claim or demand against Supplier or its suppliers by a third party arising out of or related to any Supplier Services received by you, or any data, information, service, report, analysis or publication derived therefrom. Neither Supplier nor its suppliers shall be liable for any claim or demand against you by a third party.
- Supplier and its third-party providers shall constitute third-party beneficiaries hereunder.
Unless otherwise agreed to in writing, the data may be used by you solely for their internal use and benefit and solely within the approved redistribution product(s). Use of the data expressly excludes further dissemination in any form to any other third party or use of the data for a joint venture to which you are a party.
NYSE AGREEMENT FOR MARKET DATA DISPLAY SERVICES
(Nonprofessional Subscriber Status)
Albert Investments ("Vendor") agrees to make certain data (referred to in this agreement as "Market Data") available to you pursuant to the terms and conditions set forth in this agreement. By agreeing to the Client Account Management Agreement and this exhibit, you ("Subscriber") agree to comply with those terms and conditions. This sets forth terms and conditions of general applicability. References to “Subscriber” or “you” in this agreement means the Client under the Client Account Management Agreement.
TERMS AND CONDITIONS OF GENERAL APPLICABILITY
- MARKET DATA DEFINITION – For all purposes of this agreement, "Market Data" means (a) last sale information and quotation information relating to securities that are admitted to dealings on the New York Stock Exchange ("NYSE*"), (b) such bond and other equity last sale and quotation information, and such index and other market information, as United States-registered national securities exchanges and national securities associations (each, an "Authorizing SRO") may make available and as the NYSE* may from time to time designate as "Market Data"; and (c) all information that derives from any such information.
- PROPRIETARY NATURE OF DATA – Subscriber understands and acknowledges that each Authorizing SRO and Other Data Disseminator has a proprietary interest in the Market Data that originates on or derives from it or its market(s).
- ENFORCEMENT – Subscriber understands and acknowledges that (a) the Authorizing SROs are third-party beneficiaries under this agreement and (b) the Authorizing SROs or their authorized representative(s) may enforce this agreement, by legal proceedings or otherwise, against Subscriber or any person that obtains Market Data that is made available pursuant to this agreement other than as this agreement contemplates. Subscriber shall pay the reasonable attorney's fees that any Authorizing SRO incurs in enforcing this agreement against Subscriber.
- DATA NOT GUARANTEED – Subscriber understands that no Authorizing SRO, no other entity whose information is made available over the Authorizing SROs' facilities (an "Other Data Disseminator") and no information processor that assists any Authorizing SRO or Other Data Disseminator in making Market Data available (collectively, the "Disseminating Parties") guarantees the timeliness, sequence, accuracy or completeness of Market Data or of other market information or messages disseminated by any Disseminating Party. Neither Subscriber nor any other person shall hold any Disseminating Party liable in any way for (a) any inaccuracy, error or delay in, or omission of, (i) any such data, information or message or (ii) the transmission or delivery of any such data, information or message, or (b) any loss or damage arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) non- performance or (iii) interruption in any such data, information or message, due either to any negligent act or omission by any Disseminating Party, to any "force majeure" (e.g., flood, extraordinary weather conditions, earthquake or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications or power failure, equipment or software malfunction) or to any other cause beyond the reasonable control of any Disseminating Party.
- PERMITTED USE – Subscriber shall not furnish Market Data to any other person or entity. Subscriber represents and warrants to Albert Investments that Subscriber is not a Securities Professional. If Subscriber is a Nonprofessional Subscriber, he or she shall receive Market Data solely for his or her personal, non-business use. If Subscriber receives Market Data other than as a Nonprofessional Subscriber, it shall use Market Data only for its individual use in its business.
- DISSEMINATION DISCONTINUANCE OR MODIFICATION – Subscriber understands and acknowledges that, at any time, the Authorizing SROs may discontinue disseminating any category of Market Data, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics. The Authorizing SROs shall not be liable for any resulting liability, loss or damages that may arise therefrom.
- DURATION; SURVIVAL – This agreement remains in effect for so long as Subscriber has the ability to receive Market Data as contemplated by this agreement. In addition, Vendor may terminate this agreement at any time, whether at the direction of the Authorizing SROs or otherwise. Paragraphs 2, 3 and 4, and the first two sentences of Paragraph 8, survive any termination of this agreement.
- MISCELLANEOUS – The laws of the State of New York shall govern this agreement and it shall be interpreted in accordance with those laws. This agreement is subject to the Securities Exchange Act of 1934, the rules promulgated under that act, and the joint-industry plans entered into pursuant to that act. This writing contains the entire agreement between the parties in respect of its subject matter. Subscriber may not assign all or any part of this agreement to any other person. The person executing this agreement below represents and warrants that he or she has legal capacity to contract and, if that person is executing this agreement on behalf of a proprietorship or a business, partnership or other organization, represents and warrants that he or she has actual authority to bind the organization.By agreeing to this agreement, I, the "Subscriber" acknowledge that I have read the preceding terms and conditions, that I understand them and that I hereby manifest my assent to, and my agreement to comply with, those terms and conditions.