ProNvest, Inc. IRA Service Agreement
Last updated: 12/10/2020
This IRA Service Agreement (“Agreement”) sets forth the terms and conditions under which ProNvest, Inc. (“ProNvest,” “we,” “our,” “us”) a registered investment advisor 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 a beneficial owner (“Client”, “you,” “your”) of an Individual Retirement Account (IRA).
By entering into this Agreement, you agree to be bound by the terms and conditions set forth herein, including the Pre-Dispute Arbitration, class action waiver, and jury trial waiver provided in Section 11.
1. Description of Services. ProNvest provides advice, account management, and related services for an IRA (hereinafter, an “Account”). We will arrange for an unaffiliated investment adviser (“Independent Adviser”) registered with the SEC under the Advisers Act to provide the investment advice described herein with respect to the securities available for your Account. ProNvest may, from time to time, change the Independent Adviser without advance notification to or approval by you. The name of and information about the current Independent Adviser is available upon request.
The Independent Adviser will make and, from time to time, update or rebalance a recommended asset allocation for your Account based on: (i) several model strategies developed and maintained by the Independent Adviser; and (ii) personal and financial information that you provide to us via a web-based retirement planner (“Retirement Planning Portal”).
You must complete our account setup process and provide the required information within the Retirement Planning Portal before we can provide the Services to you.A portfolio description for the designated managed Account describing the investment objectives, risk and return characteristics, and fees and expenses is available within the Retirement Planning Portal.
We will purchase and sell assets for your Account on a discretionary basis and based on the personal and financial information you provide to us and the Independent Advisor’s recommended asset allocation and fund selection as described above.“Discretionary” asset allocation means assets will be bought and sold for your Account without your approval of each trade. We will communicate (i) without change, the Independent Adviser’s recommended asset allocation and fund selection to you and (ii)purchase and sell instructions to the independent custodian regarding specific securities for each asset class based on the recommended asset allocation and fund selection.You understand and acknowledge that the Independent Adviser may recommend, and we may communicate investment advice to other clients that differs from the investment advice communicated to you. Your assets shall be held by an independent custodian and we will not accept possession of any assets in your Account. Your investment portfolio will be rebalanced to the target asset allocation at least once per quarter.
You have access to our team of professional retirement counselors and other investment and retirement planning resources, including our GAP analysis tools,account and market data, and support for your outside accounts.
2. Limited Power of Attorney. You appoint ProNvest to provide discretionary Account management and act as your agent and attorney-in-fact with limited power and authority to act for and on behalf of you to buy, sell, and otherwise effect investment transactions in the name of your Account, without an obligation for us to first consult with or to notify you. You further authorize us, upon your request or instruction, to deposit funds and assets into the Account, withdraw funds or assets from the Account, and initiate rollovers or other transfers of assets between accounts. No cash or securities or any property will be paid or delivered to us, except fees as provided in Section 5. This Limited Power of Attorney will continue until this Agreement is terminated as provided in Section 6 or we receive notice of Client’s death or judicially determined incompetence.
4. Your Responsibilities. We rely on the information you submit to us in order to provide you with our Services. You are solely responsible for: (i) providing true,accurate, and complete information; (ii) notifying us of any material change in your information or circumstance that might affect the manner in which your account should be invested (whether financial circumstance, investment objective, risk tolerance, or otherwise); (iii) notifying us immediately if you have knowledge of or suspect any unauthorized use of your information.
You are further responsible for determining the suitability of your investments and strategies. You understand that the Services are not a substitute for seeking more specific or personalized advice regarding the investments and strategy appropriate for your risk tolerance, financial circumstances, and objectives. You agree that all personal and financial information that you provide to us is true and correct and may be relied upon by us and the Independent Adviser in providing services under this Agreement.
You understand and acknowledge that withdrawing amounts from your Account may impair achievement of your investment objectives. You agree to promptly notify us of any withdrawals you make from your Account. Neither we nor the Independent Adviser will have any duty, obligation, or right to advise with respect to or inquire about any such withdrawals.
5. Fees. For our Services under this Agreement, we will charge fees quarterly at a rate of 0.125% of the fair market value of the securities in your Account on the last business day of the quarter. With respect to the quarter in which you first enter into this Agreement, the fee will be pro-rated based on the date that we first manage your Account. You will receive a notice showing the amount of the fee assessed for each applicable period. You hereby authorize the independent custodian to deduct from your Account the fee for each period as calculated by us and remit it to us. You acknowledge that you may be required to pay and/or your Account may be charged other fees, such as brokerage and custodial fees, which are in addition to those charged under this Agreement. We will be responsible for compensating the Independent Adviser; you will not be required to pay any additional fees to the Independent Adviser.
7. No Other Responsibilities. Neither ProNvest or the Independent Adviser have no responsibility with respect to your Account other than those expressly stated in this Agreement, and have no responsibility with respect to the voting of proxies for or determination on any other legal matter with respect to the securities in which your Account is or was invested. Securities in your Account will be held by the independent custodian. The independent custodian will provide you with periodic statements that set forth the securities and cash positions in your Account and the transactions in your Account during the applicable period.
8. Acknowledgement of Costs and Risks. ALL INVESTMENTS INVOLVE RISKS,INCLUDING BUSINESS, ECONOMIC, MARKET, POLITICAL, AND GEOPOLITICAL RISKS. PAST PERFORMANCE IS NOT INDICATIVE OF FUTURE SUCCESS. YOUR ACCOUNT MAY LOSE MONEY, INCLUDING PRINCIPAL, AND YOUR INVESTMENTS WILL FLUCTUATE DEPENDING ON MARKET CONDITIONS.
YOU ACKNOWLEDGE THE INVESTMENT APPROACH, RISK FACTORS, AND FEES AND COSTS ASSOCIATED WITH THE INVESTMENT OF THE SECURITIES IN YOUR ACCOUNT AND THAT YOUR INVESTMENTS MAY DECLINE IN
9. Limitation of Liability. To the fullest extent permitted by state and federal securities laws and regulations or the Employee Retirement Income Security Act of 1974(“ERISA”), as applicable, and excepting our negligence, willful misconduct, or violation of applicable law, you agree that ProNvest, the Independent Adviser, and their respective directors, officers, stockholders, employees, and agents will not be liable for any act, omission, or error of judgment with respect to the Services, including but not limited to any loss in market value of the securities in your Account resulting from either our services or the Independent Adviser’s services hereunder, whether due to error of judgment or otherwise. Federal and state securities laws and ERISA impose liabilities under certain circumstances on persons who act in good faith and nothing herein shall constitute a waiver or limitation of your rights under federal or state securities laws or ERISA.
10. Indemnification. You agree to indemnify, defend, and hold ProNvest and its affiliates, officers, directors, agents, licensors, and employees harmless from any liability, loss, cost, claim, and expense, including attorney’s fees, related to or arising from your use of the Services, including but not limited to your: (i) failure to provide true and accurate information or to update such information; (ii) violation of this Agreement;(iii) violation of applicable law or regulation; or (iv) violation of the rights of a third party.Notwithstanding the foregoing, this Section 10 will not affect your non-waivable statutory rights.
11. PRE-DISPUTE ARBITRATION AND CLASS ACTION WAIVER.
BY ENTERING INTO THIS AGREEMENT, YOU AND PRONVEST ARE GIVING UP THE RIGHT TO: (I) SUE EACH OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, AND (II) LITIGATE ON A CLASS BASIS, WHETHER CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
YOU AGREE TO RESOLVE BY BINDING ARBITRATION ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, PERFORMANCE, TERMINATION, ENFORCEMENT, INTERPRETATION,OR VALIDITY THEREOF, INCLUDING THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE.
ANY ARBITRATION SHALL BE CONDUCTED BEFORE JUDICIAL ARBITRATION AND MEDIATION SERVICES (“JAMS”) PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. YOU AGREE THAT ANY ARBITRATION HEARING WILL BE HELD IN HAMILTON COUNTY, TENNESSEE,AND APPLY THE SUBSTANTIVE LAW OF TENNESSEE TO ALL STATE LAW CLAIMS. YOU AGREE TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED IN HAMILTON COUNTY, TENNESSEE TO INTERPRET AND ENFORCE THESE ARBITRATION PROVISIONS. DISPUTES WILL NOT BE RESOLVED IN ANY OTHER FORUM OR VENUE.
ANY ARBITRATION WILL BE CONDUCTED BY A RETIRED JUDGE WHO IS EXPERIENCED IN RESOLVING DISPUTES REGARDING THE SECURITIES INDUSTRY. PRE-ARBITRATION DISCOVERY WILL BE LIMITED TO THE GREATEST EXTENT ALLOWED BY THE JAMS RULES. ANY ARBITRATION AWARD WILL NOT INCLUDE FACTUAL FINDINGS, CONCLUSIONS OF LAW, OROTHER WRITTEN EXPLANATION OF REASONS FOR THE AWARD. THE ARBITRATOR MAY NOT AWARD CONSEQUENTIAL OR PUNITIVE DAMAGES(UNLESS AND ONLY TO THE EXTENT SUCH DAMAGES ARE STATUTORILY REQUIRED TO BE AN AVAILABLE REMEDY FOR AN ASSERTED CLAIM). THE ARBITRATOR SHALL ALLOCATE THE COSTS OF ARBITRATION IN THE AWARD,INCLUDING ARBITRATOR FEES AND REASONABLE ATTORNEYS’ FEES OF THE PREVAILING PARTY. ANY AWARD BY THE ARBITRATOR WILL BE FINAL AND BINDING.
YOU UNDERSTAND THAT STATE AND FEDERAL LAW LIMITS YOUR RIGHT TO APPEAL OR SEEK MODIFICATION OF AN AWARD OR RULING BY THE ARBITRATOR. STATE AND FEDERAL STATUTES OF LIMITATION, REPOSE, OROTHER LAWS AND REGULATIONS MAY PROVIDE A TIME LIMIT IN WHICH YOU MUST BRING A CLAIM, AND YOU AGREE THAT THESE TIME LIMITS WILL APPLY TO ANY ARBITRATION PROCEEDING BROUGHT UNDER THIS AGREEMENT TOTHE SAME EXTENT SUCH TIME LIMITS WOULD BE BARRED IF BROUGHT IN ASTATE OR FEDERAL COURT. THIS ARBITRATION PROVISION WILL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH APPLICABLE FEDERAL LAW, INCLUDING THE FEDERAL ARBITRATION ACT (FAA).
12. No Legal or Tax Advice; Legal Status. We do not provide legal, tax, or accounting advice. It is your responsibility to seek advice regarding your individual financial circumstances from an attorney, accountant, advisor, or other relevant professional.ProNvest and the Independent Adviser each is an investment adviser registered with the Securities and Exchange Commission under the Advisers Act. To the extent a retirement plan is subject to ERISA or Section 4975 of the Internal Revenue Code: (i)we acknowledge that we are a fiduciary with respect to the appointment of the Independent Adviser under this Agreement; and (ii) the Independent Adviser acknowledges that it is a fiduciary with respect to the investment advice it provides under this Agreement. Recommendations will be implemented pursuant to advice provided by the Independent Adviser and not as a result of our exercise of discretionary authority, control, or responsibility. You understand that the relationship between ProNvest and the Independent Adviser is that of independent contractors. The parties hereto agree that the Independent Adviser is a third-party beneficiary of this Agreement,and that their agreements hereunder in respect of the Independent Adviser are binding on and legally enforceable by the Independent Adviser against you.
13. IRA Rollover Disclosure.
The SEC’s Standards of Conduct for Investment Advisers require registered investment advisers, among others, to provide clients with advice that is in their best interest. This Section 13 is meant to provide you with information concerning advantages,disadvantages, and alternatives that you should consider when deciding whether to rollover assets in your employer sponsored retirement account (ESRA) into an IRA.Typically, you have the following options regarding your ESRA assets:
1. Keep the assets in your ESRA (or rollover to a new ESRA, where applicable and permitted).
2. Rollover the assets into an IRA.The assets can continue to grow on a tax-deferred basis and the rollover is not subject to federal or state taxes. Tax-deferred means you will pay federal and state taxes upon the amount you withdraw for retirement each year.
3. Withdraw the assets and pay applicable taxes. Cashing out means the assets will not continue to grow on a tax-deferred basis, you will be required to pay federal and state taxes, and under certain circumstances, and an early withdrawal penalty may apply.
You are not required to rollover any assets into an IRA, regardless of any recommendation we provide. If we recommend that you rollover ESRA assets into your IRA and you subsequently hire us to manage the IRA assets, we will earn an asset-based fee. If you leave or place the assets in an ESRA not managed by us, this will result in little or no compensation to us. If you leave or place the assets in an ESRA managed by us, we are compensated for asset management services in accordance with your contract. We have a duty under the law to act in your best interest exercising reasonable diligence, care, and skill in making a recommendation, despite any economic incentive that may exist for us to recommend a rollover or otherwise. Our recommendations are based on the information you provide to us regarding your risk tolerance, objectives, and financial circumstances.
The information provided above is meant for general educational purposes only.Nothing contained herein should be taken as advice or a recommendation. You should consult tax and legal professionals for advice regarding your particular circumstances.We do not provide tax or legal advice of any kind.
14. Form ADV. You acknowledge receipt of Part 2 and Part 3 of ProNvest’s Form ADV also located on our website, here. Upon execution of this Agreement, ProNvest’s ADV Brochure and Client Relationship Summary will also be provided in electronic format through your Retirement Planning Portal account. You may request these documents in written form at any time.
15. Electronic Communication Consent; Electronic Signatures. To the greatest extent allowed by law, you consent to receive all communications and notices electronically via the email address you provide to us. You may request a paper copy of any electronic communication by contacting us at 1-866-738-5125. We reserve the right to charge a reasonable fee for producing and mailing the paper version(s). You may also withdraw your consent to receive electronic communications at any time by contacting us at the phone number listed above. You understand that withdrawing your consent could result in your access to certain of our services being restricted or terminated.
You agree that your electronic signature, including but not limited to the use of a mouse,keypad, or other electronic device to select any icon, item, or button, constitutes your signature and is the legal equivalent of your manual signature on this Agreement. Yourintentional action in electronically accepting the terms of this Agreement and use of the Services are valid evidence of your consent to be legally bound by this Agreement. The use of an electronic version of these documents fully satisfies any requirement that they be provided to you in writing. You may contact us to obtain a record of the documents that you electronically accept through https://pronvest.com.
(a) Notice to Client. All communications we send to your email address registered with us will be deemed as delivered and will constitute proper and effective notice. You agree that all notices, agreements, disclosures, documents, statements, data, records,and other communications that we provide to you electronically satisfy the same legal requirements that would be satisfied if such were provided in a hardcopy form. It is your responsibility to provide us with your correct email address and to update your email address when necessary.
(b) Notice to ProNvest. Notice to us must be sent through a nationally recognized carrier via overnight delivery or first-class postage prepaid mail to: ProNvest, Inc., Attn:Compliance, 1110 Market Street, Suite 402, Chattanooga, TN 37402.
17. Governing Law. This Agreement will be deemed to have been made in the State of Tennessee and to the maximum extent allowed by law, and in compliance with the Advisers Act, will be governed by the laws of the State of Tennessee, without reference to principles of conflicts or choice of laws.
18. Severability. 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.
19. No Waiver. No provision of this Agreement will be deemed waived, altered,modified, or amended unless agreed to in writing by us.
20. Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to the services to be provided to you by ProNvest. Any and all previous agreements and understandings between us and you regarding the subject matter of this Agreement, whether written or oral, are superseded by this Agreement. We may amend this Agreement by providing you with thirty (30) days’ advance notice.
21. Assignment. We may assign our interests in this Agreement to a successor in interest to substantially all of its business or an affiliated company without your consent,provided that: (i) 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 thenon-assigning party; (ii) the assigning party promptly notifies the non-assigning party of such assignment; and (iii) such assignment is consistent with the Advisers Act.
BY ELECTRONICALLY SIGNING THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT AND YOU CONSENT TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS HEREIN.