Terms and Conditions - Stonegate Digital

EXHIBIT “D”

STONEGATE GLOBAL FUND SERVICES, LLC AND
STONEGATE FUND ADMINISTRATION, LLC
TERMS AND CONDITIONS FOR CLIENT SERVICES AGREEMENT

The Terms and Conditions for Client Services Agreement (“Terms and Conditions”) shall be fully incorporated into the Stonegate Global Fund Services, LLC, and Stonegate Fund Administration, LLC Client Services Agreement (“Agreement”).

Unless defined otherwise, the terms and definitions used herein shall refer to the terms and definitions set forth in the Agreement.

By agreeing to the Client Services Agreement, Client explicitly agrees to the following Terms and Conditions:

Superiority. To the extent that any conflict exists between the provisions in the Agreement and these Terms and Conditions, the provisions of the Agreement shall be deemed controlling.
Covered Services. It is understood that these Terms and Conditions apply to all services provided by SGFS to Client. This explicitly includes any future, additional, or subsequent services provided by SGFS to Client beyond those contemplated in the Agreement.
Payment. Invoices shall be payable within 10 days from the date of the invoice. Invoices shall be provided monthly. In SGFS’s sole discretion, SGFS may defer any bill until a later month or time. Monthly processing services begin upon the first month of Fund activity.
Late Payments. Late payments will incur a monthly late fee of five per cent (5%) of the outstanding balance, compounded monthly.
Dispute resolution. Client agrees to provide SGFS with written notice of any dispute, claim, or controversy, of any sort or nature, arising out of the Services or relating to SGFS, within six (6) months after any such claim, dispute, or controversy arises. Client must provide written notice via certified mail, return receipt requested, to: Heidari Power Law Group LLC, P.O. Box 79217, Atlanta, Georgia 30357. Any failure to strictly follow the procedures delineated in this section shall constitute an unconditional waiver of any dispute, claims, or controversy that may exist or Client may have against SGFS, its affiliates, subsidiaries, parent entity, licensors, licensees, owners, shareholders, officers, directors, employees, contractors, and agents. Client agrees to pay SGFS’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.
Limitation of Liability. IN NO CASE SHALL SGFS, ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (EVEN IF SGFS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).

IN NO EVENT WILL THE AGGREGATE OF EACH OF SGFS, ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS’ LIABILITY FOR ANY AND ALL OF CLIENT’S CLAIMS, OR ANY THIRD PARTY CLAIMS, AGAINST SGFS (AND/OR ITS OWNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS), ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF ANY SERVICES OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF SGFS, EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00). CLIENT AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THE AGREEMENT.

Legal Agreement. Client hereby warrants and agrees that these Terms and Conditions constitute a legal agreement between Client and SGFS and governs all services provided by SGFS to Client. Client hereby irrevocably waives any argument or defense to the contrary, and Client covenants not to set forth any argument or defense to the contrary.
Waiver. SGFS failure to enforce or demand strict compliance of any right or provisions in the Agreement or these Terms and Conditions will not constitute a waiver of such or any other provision.
Legal Advice. Client understand and agrees that SGFS is not engaged in the practice of law, and recognizes that SGFS cannot engage in any activity that constitutes the practice of law.
Broker-Dealer. Client understand and agrees that SGFS is not a broker-dealer, and recognizes that SGFS cannot engage in any activity that constitutes securities and/or brokerage services
Non-solicitation of Employees, Contractors, or Agents. Client hereby agrees that during the duration of the Agreement and for a period of twenty-four (24) months immediately following the date of termination or cessation of the Agreement, Client will not hire any employee, contractor, or agent of SGFS, and Client will not, either directly or indirectly, solicit, induce, recruit, or encourage any SGFS employee, contractor, or agent to leave its employment, or take away such employee, contractor, or agent, or attempt to solicit, induce, recruit, encourage, or take away any employee, contractor, or agent of SGFS, either on behalf of Client personally or for any other person or entity.
Interference. Client hereby agrees that during the duration of the Agreement and for a period of twenty-four (24) months immediately following the date of termination or cessation of the Agreement, Client will not, either directly or indirectly, interfere with SGFS’s contracts and relationships, or prospective contracts and relationships, including, but not limited to, SGFS’s customer or client contracts and relationships.
Non-Circumvention. Client hereby agrees that during the duration of the Agreement and for a period of twenty-four (24) months immediately following the date of termination or cessation of the Agreement, Client shall not, without SGFS’s prior written permission, engage in any business or relationship with any contact, agent, or strategic business partner that SGFS introduces to Client, or that Client learns of within the course the Agreement.
Referral. Client understand and agrees that in the event SGFS believes Client requires the services of a professional (e.g., legal services, broker-dealer services, cpa services, etc.), SGFS may refer client to said professional. In such an event, said professional may require Client to enter into a separate engagement. Client also understands and agrees that SGFS may, but is not required, to act as Client’s agent in procuring any services from a professional that may be necessary or convenient. Accordingly, Client hereby represents, warrants, authorizes, and agrees that SGFS has the express authority and permission to take any steps necessary and to act as Client’s agent to provide services as contemplated herein.
Non-exclusive. Client agrees and understands that SGFS may represent other clients. Client recognizes and agrees that SGFS provides services for Client on a non-exclusive basis, and that SGFS is free to furnish Services for other individuals and entities.
Authority to Bind. The undersigned warrants he or she has the authority to bind its respective party.
Modifications. Client agrees to examine these Terms and Conditions prior to receiving any services by SGFS. These Terms and Conditions may be modified by SGFS on the first day of each annual quarter without notice to Client. Client agrees to be bound by any modification in these Terms and Conditions upon successively obtaining any services from SGFS. Client agrees and understands that if Client does not agree to the modification of these Terms and Conditions, then Client may reject such modification by provide written notice stating Client rejects the modification to SGFS’s legal counsel, via certified mail, return receipt requested, at Heidari Power Law Group LLC, c/o Yasha Heidari, Esq., P.O. Box 79217, Atlanta, GA 30357. In the event Client provides such notice that Client rejects the modification to these Terms and Conditions, then any prior Terms and Conditions in effect will continue to exist in full force and effect unless SGFS and Client agree otherwise.
Unenforceable Provisions. All Terms and Conditions, and any portion thereof, shall be construed in such a way that to ensure they are valid under any applicable laws. If any provision of these Terms and Conditions, or any portion thereof, is held to be invalid and unenforceable, then the remainder of these Terms and Conditions shall nevertheless remain in full force and effect.
Headings and Titles. The section titles in the Terms and Conditions are for convenience only and have no legal or contractual effect.
Notice precursor to action. Client agrees that prior to initiating or filing any lawsuit, action, or demand for arbitration against SGFS, Client must provide written notice to SGFS’s legal counsel, via certified mail, return receipt requested, at Heidari Power Law Group LLC, c/o Yasha Heidari, Esq., P.O. Box 79217, Atlanta, GA 30357, which provides notice of any issue that would be subject to such a lawsuit or arbitration. Such notice requirement shall be strictly construed, and Client’s failure to comply with such notice requirements shall constitute an irrevocable waiver of any claim or cause of action that exists or may exist. Such notice requirement shall be additional to any and all other notices required under these Terms and Conditions. Client agrees to pay SGFS’s reasonable attorneys’ fees for defending a lawsuit in which the dispute resolution procedure, as defined in this section, has not been strictly followed.
Initiation of Action. Client agrees that any claim and lawsuit relating to any matter with SGFS, including but not limited to claims arising out of or related to the Agreement and any services provided by SGFS to Client, and any demands for arbitration, must be filed no more than six (6) months after the date the action or non-action that is the subject of the claim or lawsuit, or six (6) months after the acceptance of these Terms and Conditions, whichever is later. Client hereby waives any defense or argument pertaining to statute of limitations. Client agree and warrant that Client’s failure to comply with this section shall serve as an unconditional waiver and release for any and all such claims.
Dispute Resolution. Prior to any lawsuit, action, or demand for arbitration being filed by Client, Client agrees to enter into a bona fide mediation program prior to filing such lawsuit, action, or demand for arbitration. The mediation program shall be paid in half by Client and paid in half by SGFS. All payments shall be paid in advance. The party intending to file a lawsuit, action, or arbitration shall provide notice to the other party as provided in this Agreement, and state its intention to enter into a mediation program. To the extent a party intends to file a lawsuit against SGFS, a copy of all correspondence and notices as proscribed herein shall also be mailed to SGFS’s legal counsel at Heidari Power Law Group LLC, c/o Yasha Heidari, Esq., P.O. Box 79217, Atlanta, GA 30357. Within ten (10) business days, the party receiving the notice shall provide three (3) potential mediators that may be chosen to mediate the dispute. The party intending to file a lawsuit then has ten (10) business days to select such mediator from the list of three (3) potential mediators provided. Thereafter, the parties shall schedule a mediation at a mutually agreeable time within the next 30 days, and to the extent the mediation cannot be scheduled amicably by the parties, then the mediator shall schedule the mediation within such time period. Failure by the party intending to file a lawsuit to provide notice of an intention to enter into a mediation program, satisfy the obligations in this Section, or participate in a mediation prior to filing a lawsuit shall serve as an unconditional waiver and release of any claims that may exist. Such an unconditional waiver and release shall serve as an unconditional waiver and release of any and all disputes relating to this Agreement in any way, shape, or form, and shall explicitly include an unconditional waiver and release for all persons or entities, whether such person or entity is a party to this Agreement or not, and shall explicitly include any person’s members, officers, directors, employees, contractors, and agents. Solely by way of example, if Client fails to comply with this mediation section prior to initiating a lawsuit, Client would not only waive any and all claims against SGFS, but also against all of SGFS’s members, officers, directors, employees, contractors, and agents.

A notice of intention to enter into a mediation program shall toll the section titled “Initiation of Action” by fifty (50) days to allow the mediation. Notwithstanding the foregoing, failure to provide a notice of mediation within the six (6) month period required by the section titled “Initiation of Action” shall serve as an unconditional waiver and release for any and all such claims.

Failure of a party that receives such a notice of an intention to enter into a mediation program to satisfy his or its obligations under this Section, will abrogate the provider of such notice of any requirement of entering into the mediation program. The provider of such notice may then elect to proceed with its demand to proceed with its lawsuit, action, or demand for arbitration, but the recipient of such notice shall not otherwise have his rights prejudiced in any way.

Arbitration. In the event that the parties are unable to resolve any Dispute informally, then such Dispute shall be submitted to final and binding arbitration. THE PARTIES HERETO AGREE THAT ANY AND ALL DISPUTES OR CONTROVERSIES ARISING UNDER THE AGREEMENT, THESE TERMS AND CONDITIONS, ANY OF SUCH TERMS, ANY EFFORT BY ANY PARTY TO ENFORCE, INTERPRET, CONSTRUE, RESCIND, TERMINATE OR ANNUL THE AGREEMENT AND THE TERMS AND CONDITIONS, OR ANY PROVISION AND SECTION THEREOF, AND ANY AND ALL DISPUTES OR CONTROVERSIES RELATING TO OR INVOLVING SGFS, SHALL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FOLLOWING PROCEDURE: EITHER (I) SGFS, ON THE ONE HAND, AND CLIENT, ON THE OTHER HAND, SHALL MUTUALLY SELECT AN ARBITRATOR, OR (II) IF SGFS AND CLIENT CANNOT AGREE ON SUCH ARBITRATOR, SGFS ON THE ONE HAND, AND CLIENT, ON THE OTHER HAND, SHALL EACH SELECT ONE ARBITRATOR AND THOSE TWO ARBITRATORS SHALL THEN SELECT A THIRD ARBITRATOR. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED UNDER THE AUSPICES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), UNDER ITS COMMERCIAL ARBITRATION RULES. THE PARTIES HERETO AGREE THAT THE ARBITRATOR’S RULING, OR ARBITRATORS’ RULING, AS APPLICABLE, IN THE ARBITRATION SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL OR CHALLENGE. THE PARTIES HERETO FURTHER AGREE THAT THE ARBITRATION PROCEEDINGS, TESTIMONY, DISCOVERY AND DOCUMENTS FILED IN THE COURSE OF SUCH PROCEEDINGS, INCLUDING THE FACT THAT THE ARBITRATION IS BEING CONDUCTED, WILL BE TREATED AS CONFIDENTIAL AND WILL NOT BE DISCLOSED TO ANY THIRD PARTY TO SUCH PROCEEDINGS, EXCEPT THE ARBITRATOR(S) AND THEIR STAFF, THE PARTIES’ ATTORNEYS AND THEIR STAFF, AND ANY EXPERTS RETAINED BY THE PARTIES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION OR IN ANY OF THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION SHALL PREVENT SGFS FROM SEEKING PROVISIONAL RELIEF OUTSIDE OF ARBITRATION, INCLUDING BUT NOT LIMITED TO EQUITABLE AND/OR INJUNCTIVE RELIEF, PENDING THE ARBITRATOR’S FINAL DECISION. The arbitration shall be paid in half by client and paid in half by SGFS. All payments shall be paid in advance.
Release and Indemnity. Client releases SGFS, its owners, members, shareholders, officers, directors, agents, contractors, employees, licensees, and invitees (hereinafter “SGFS Group”) from any and all liability for, and agrees to indemnify and hold SGFS Group harmless from and against, any and all losses, claims, expenses, costs, and damages, including but not limited to reasonable attorney’s fees, costs, or expenses, which are claimed of or sustained, suffered, paid or incurred by SGFS Group, irrespective of SGFS Group’s negligence (except gross negligence), for reason of or in connection with any or any combination of the following: (a) SGFS Group’s breach of or failure to fulfill any provision of the Agreement or these Terms and Conditions, whether such breach is material or not; (b) any cause of action in any way related to or arising out of SGFS Group’s conduct, actions, or omissions, including but not limited to any damage or injury to person or property; (c) any matter in any way related to the Agreement or performance under the Agreement. Client agrees to obtain insurance coverage, including a project specific insurance policy or policies, an owner’s or contractor’s protective insurance policy, an owner controlled insurance policy, or a contractor controlled insurance policy, to cover any and all such requirements and obligations specified in this paragraph.
Acceleration. In the event that Client materially breaches the Agreement, all future payments contemplated by the Agreement shall be considered immediately due and payable in full as of the date of the breach. Client’s failure to provide payment to SGFS within 45 days of when said payment is due shall be considered a material breach of the Agreement.
Covenant not to Sue. Client provides SGFS a covenant not to sue SGFS Group for any and all reasons, related to this Agreement or otherwise, for a period of twenty years from the date of this Agreement.
No Beneficiary. It is understood and agreed that Client and SGFS are the sole parties to the Agreement, and the services provided pursuant to Agreement by SGFS for Client is solely for the benefit of Client.
Ambiguity. The Agreement, including these Terms and Conditions, shall be deemed the mutual instrument of both parties, and no ambiguity shall be construed against either SGFS or Client.
Successors and Assigns. These Terms and Conditions shall be binding upon and inure to the benefit of the parties, their successors, assigns, and personal representatives.
Governing Law. The Agreement and Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of the State of Georgia and the United States of America. Any litigation or arbitration between the Parties shall be conducted exclusively in the State of Georgia. SGFS and Client hereby consent to said jurisdiction. Client hereby waives the defense of lack of jurisdiction.
Venue. Venue for any litigation or arbitration relating to the Agreement and these Terms and Conditions shall be exclusively in courts of Fulton County, Georgia. Client agrees and consents to such venue, and Client waives any defense pertaining to venue.
Entire Agreement for Subject Matter. These Terms and Conditions constitute the entire agreement between Client and SGFS with regard to the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral.