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. If you are an existing Client as of the date hereof, your continued use of your Albert Investments Account following your receipt of notice of an update of this Agreement shall constitute your agreement to the updated terms.
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” and such agreement, the “Customer Account Agreement”), a registered broker dealer and affiliate of Albert Investments and Apex Clearing Corporation (“Apex”), an SEC registered broker-dealer. Albert Securities is an introducing broker of Albert Investments. Albert Securities provides opening, approval, monitoring, and supervision services. Albert Securities provides self-directed brokerage services to you. Albert Securities executes securities transactions at the direction of Albert Investments, for discretionary trades, and at your direction, for non-discretionary trades.
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.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THIS AGREEMENT BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION BY BINDING ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION BY BINDING ARBITRATION” SECTION BELOW, YOU AGREE THAT ANY CLAIMS, CAUSES OF ACTION, REMEDIES OR DISPUTES BETWEEN YOU AND ALBERT RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
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”); and (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.)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 (a “Genius Portfolio”). For Genius Portfolios, you authorize us, without prior consultation, consent or approval, to give instructions to Albert Securities to implement securities transactions. 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-Genius Portfolio investments, 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 Genius Portfolio.
Albert Investments will be responsible for the review and evaluation of your current financial information that you provide to us and will make its Genius Portfolio 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 Genius Portfolio 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 investor profile to determine whether it should be modified. You agree to review your investor profile 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”). Information about the Program is available at: https://adviserinfo.sec.gov/firm/brochure/298006.
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 Genius Portfolio. 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.
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 a Genius Portfolio. 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.
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.
- 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.
9. MARKET DATA
By entering into this Account Management Agreement, you will gain access to real time market data provided by (a) Cboe Global Markets (Cboe), (b) the Unlisted Trading Privileges Plan (UTP), and (c) the Consolidated Tape Association Plan (CTA). As a condition of receiving access to that data, you represent and agree as follows:
- You have received and reviewed each of the (a) Cboe Global Markets Data Subscriber Agreement, (b) the UTP Plan Subscriber Agreement, and (c) the CTA Agreement for Market Data Display Services (Nonprofessional Subscriber Status) (collectively, the “Market Data Agreements”), and agree to be bound as a “Subscriber” as defined in each;
- You understand that Albert Investments and its affiliates are not agents of any of Cboe, UTP, or CTA, and have no ability to modify or waive any of the provisions of the Market Data Agreements;
- You will use the market data you receive in the Albert App solely for non-professional purposes, which means:
- You are not registered or qualified in any capacity with the SEC, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association or any commodities or futures contract market or association;
- You are not engaged as an "investment adviser" as that term is defined in Section 202(a)(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act);
- You are not employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt;
- If you work outside the United States, you do not perform the same functions as would disqualify you as a non-professional user if you worked inside the United States
- You use the data solely for your own personal, non-business use;
- You are not engaged to provide investment advice to any individual or entity;
- You are not engaged as an asset manager;
- You do not use the capital of any other individual or entity in the conduct of your trading;
- You do not conduct trading for the benefit of a corporation, partnership, or other entity;
- You have not entered into an agreement to share the profit of your trading activities or receive compensation for your trading activities; and
- You are not receiving office space, equipment, or other benefits in exchange for your trading or work as a financial consultant to any person, firm, or business entity.
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.
11. 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.
13. 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.
15. 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. Except for Disputes (as defined below) subject to arbitration under Section 16 or Small Claims Actions, and any disputes arising under any of the Market Data Agreements, 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.
16. EFFECTIVE DATE
This Agreement will be effective on your acceptance of its terms electronically by tapping the “Submit Application” button in the Albert App.
17. DISPUTE RESOLUTION BY BINDING ARBITRATION
YOU HAVE READ THIS SECTION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND ALBERT. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN THE SECTION ENTITLED "OPT OUT OF ARBITRATION" BELOW.
Initial Dispute Resolution
Before submitting a claim for arbitration in accordance with this arbitration provision, you and we agree to try, for 60 days, to resolve any Dispute informally. Any party wishing to bring a claim agrees to provide a notice of the Dispute to the other party, which shall include the sender’s name, address and contact information, the facts giving rise to the Dispute, and the relief requested. The notice shall be an individualized claim specific to the individual bringing the claim. Any notice to Albert shall be sent to firstname.lastname@example.org or regular mail at Attn: Albert Corp, 440 N Barranca Ave #3801 Covina, CA 91723. Any notice sent to you will be sent to the most recent email address Albert has in its records for you. Once the notice is received by the other party, you and we agree to participate and negotiate (personally and, if you and Albert are represented, with counsel) in good faith about the Dispute for sixty (60) days. This personal participation includes a telephone settlement conference between you and Albert if it is requested by the party that receives the notice.
If the Dispute is not resolved within sixty (60) days after receipt of the notice (or a longer period agreed to by the parties), you or Albert may initiate an arbitration or a small claims court proceeding in accordance with this Agreement.
Neither party may initiate an arbitration or a small claims court proceeding unless that party has fully complied with this section. If either party violates this section, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or small claims court proceeding, and, unless prohibited by law, no arbitration administrator may accept or administer such arbitration or assess arbitration fees in connection with such arbitration. A party may elect to raise, and seek monetary relief in connection with, non-compliance with this section in arbitration or small claims court.
Agreement to Arbitrate
You and Albert agree that the sole and exclusive forum and remedy for resolution of a Dispute shall be final and binding arbitration pursuant to this section entitled “Dispute Resolution by Binding Arbitration” unless you opt out as provided below. “Dispute” shall include any dispute, claim or controversy arising out of or relating to this Agreement and/or the activities or relationships that involve, lead to, or result from this Agreement, including our marketing activities, and (except to the extent provided otherwise in the paragraph entitled “NO CLASS ACTIONS”) the validity or enforceability of this “Dispute Resolution by Binding Arbitration” section, any part thereof, or the entire Agreement. Disputes will be settled by binding arbitration, except that each party retains the right: (i) to bring or require the other party to bring an individual action in small claims court (a “Small Claims Action”) as set forth in the Small Claims Action section below; (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”); and (iii) to bring an action seeking only injunctive relief.
Small Claims Action
If either party contends that the amount of a claim in a Dispute is within the jurisdiction of the small claims court (or an equivalent court), it may instruct the arbitration administrator to administratively close the arbitration case, prior to payment of fees, and direct that the claim be filed, if at all, in small claims court. Upon such a request by a party, the arbitration provider shall administratively close the arbitration proceeding. Any dispute about whether a claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the small claims court lacks jurisdiction over the action. Only in the event that the small claims court determines that it lacks jurisdiction over the Dispute may the arbitration provider reopen the arbitration case. You and we acknowledge that failure to comply with the provisions of this section would irreparably harm the party requesting administrative closure of the arbitration proceeding, and you and Albert agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this section are resolved by the court. You and we do not have to arbitrate a small claim that is filed in small claims court, but if that claim is transferred, removed, or appealed to a different court, you or we may elect to compel arbitration. Moreover, if you or we bring any counterclaim or cross-claim that is for more than the small claims court’s jurisdiction, you or we can elect to have the entire claim (including the counterclaim or cross-claim) resolved by arbitration.
Opt Out of Arbitration
You may opt out of the binding arbitration described in this section by sending Albert written notice of your desire to do so by email at email@example.com or regular mail at Attn: Albert Corp, 440 N Barranca Ave #3801 Covina, CA 91723 within thirty (30) days following the date you first agree to this Agreement (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Albert with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action, IP Protection Action, or to bring an action seeking only injunctive relief, as expressly set forth above.
Judicial Forum for Disputes
In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide Albert with an Arbitration Opt-out Notice; or (iii) this “Dispute Resolution by Binding Arbitration” section is found not to apply, the exclusive jurisdiction and venue of any Dispute will be as set forth in Section 14 and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE
Unless you timely provide Albert with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE AND AGREE THAT YOU AND ALBERT ARE EACH WAIVING THE RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
MASS ACTION WAIVER
The parties expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a mass action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any mass action or to award relief to anyone but the individual in arbitration. The parties also expressly waive the right to seek, recover, or obtain any non-individual relief. The parties agree that the definition of a “Mass Action” includes, but is not limited to, instances in which you or Albert are represented by a law firm or collection of law firms that has filed 50 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on your or Albert’s behalf, and the law firm or collection of law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands in the aggregate. Notwithstanding anything else in this Agreement or this arbitration provision, this Mass Action Waiver does not prevent you or Albert from participating in a mass settlement of claims.
Notwithstanding any provision to the contrary in the applicable arbitration provider’s rules, the arbitrator shall be empowered to determine whether the party bringing any claim has filed a Mass Action in violation of the Mass Action Waiver. Either party shall raise with the arbitrator or arbitration provider such a dispute within 15 days of its arising. If such a dispute arises before an arbitrator has been appointed, the parties agree that (i) a panel of three arbitrators shall be appointed to resolve only disputes concerning whether the party bringing any claim has filed a Mass Action in violation of the Mass Action Waiver. Each party shall select one arbitrator from the arbitration provider’s roster to serve as a neutral arbitrator, and these arbitrators shall appoint a third neutral arbitrator. If the parties’ arbitrators cannot agree on a third arbitrator, the arbitration provider will select the third arbitrator; (ii) Albert shall pay any administrative fees or costs incidental to the appointment of arbitrators under this provision, as well as any fees or costs that would not be incurred in a court proceeding, such as payment of the fees of the arbitrators, as well as room rental; (iii) the arbitrators shall issue a written decision with findings of fact and conclusions of law; and (iv) any further arbitration proceedings or assessment of arbitration-related fees shall be stayed pending the arbitrators’ resolution of the parties’ dispute. If the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver, the parties shall have the opportunity to opt out of arbitration within 30 days of the arbitrator’s or panel of arbitrator’s decision. You may opt out of arbitration by providing written notice of your intention to opt out to the arbitration provider and to Albert, Albert Corp, 440 N Barranca Ave #3801 Covina, CA 91723 or hand delivery. This written notice must be signed by you, and not any attorney, agent, or other representative of yours. Albert may opt out of arbitration by sending written notice of its intention to opt out to the arbitration provider and to you or your attorney, agent, or representative if you are represented. For the avoidance of doubt, the ability to opt out of arbitration described in this section only applies if the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver.
NO CLASS ACTIONS
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS EVEN IF THE DISPUTE OR DISPUTES THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of such parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than all parties to the arbitration, or resolve any Dispute of anyone other than any such party; nor (b) make an award for the benefit of, or against, anyone other than any such party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this specific paragraph, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. If this specific paragraph is held unenforceable in its entirety, then the entirety of this “Dispute Resolution by Binding Arbitration” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution by Binding Arbitration” section will survive any termination of this Agreement.
The arbitration will be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in accordance with the JAMS Arbitration Rules and Procedures then in effect (“JAMS Rules”), except as modified by this “Dispute Resolution by Binding Arbitration” section. In the case of a conflict between the rules and policies of the administrator and this “Dispute Resolution by Binding Arbitration” section, this “Dispute Resolution by Binding Arbitration” section shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. (JAMS Rules are available at https://www.jamsadr.com/adr-rules-procedures/) The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution by Binding Arbitration” section.
A party who desires to initiate arbitration must provide all other parties with a written demand for arbitration as described in JAMS Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the demand for arbitration, then JAMS will appoint the arbitrator in accordance with JAMS Rules. No party may initiate arbitration, however, unless that party has completed the initial dispute resolution process set forth above.
Arbitration Location and Procedure
Unless you and Albert otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Albert submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by JAMS Rules. Subject to JAMS Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Each party shall pay its own arbitration fees in accordance with JAMS Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
Notwithstanding any language to the contrary in this Agreement, the parties hereby agree: that the initial arbitration award (the “Underlying Award”) may be appealed pursuant to JAMS’s Appeal Procedures (“Appeal Procedures”); that the Underlying Award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appeal Procedures has expired. Appeals must be initiated within fourteen (14) days of the award becoming final, as set forth in the Appeal Procedures. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
Survival, Conflict, Severance.
This arbitration provision will survive the termination of any agreement you have with Albert and any bankruptcy. In the event of any conflict or inconsistency between this arbitration provision, on the one hand, and the administrator’s rules or this Agreement, on the other hand, this arbitration provision will govern. If any part of this arbitration provision is found to be invalid or unenforceable, then that specific part shall be severed, and the rest of this arbitration provision will continue in full force and effect, except that at either your or our election the entire arbitration provision (other than this sentence) may be null and void with respect to any claim asserted on a class, representative or multiple-party basis that does not seek public injunctive relief if the No Class Actions or Mass Action Waiver provisions are held to be invalid with respect to such claim and that determination becomes final after all appeals have been exhausted. If a court decides by means of a final decision, not subject to any further appeal or recourse, that the No Class Actions or Mass Action Waiver provisions are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts. All other disputes shall be arbitrated or litigated in small claims court.
Notwithstanding the provisions of Section 11 above, if Albert changes this “Dispute Resolution by Binding Arbitration” 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 “Last Updated” date above or in the date of Albert’s 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 in accordance with the provisions of this “Dispute Resolution by Binding Arbitration” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement). By not rejecting any change as set forth in this section, you will be bound by the changed “Dispute Resolution by Binding Arbitration” provision for all Disputes whether they accrued or were asserted before or after the effective date of the change.
18. 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 Electronic Communications:
- 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 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.