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This agreement sets forth the contract to be entered into between a consultant and a client for the provision of personal finance, estate planning or retirement planning consulting services. This document contains the material terms and conditions of the agreement including the specific services to be provided, the payment details and the term of the agreement. The draft form contains numerous standard provisions as well as optional language to ensure that the specific understandings between parties are addressed. This document should be used by a personal finance, estate planning or retirement planning consultant and a client when entering into an agreement for services.
This agreement sets forth the contract to be entered into between a consultant and a client for the provision of personal finance, estate planning or retirement planning consulting services. This document contains the material terms and conditions of the agreement including the specific services to be provided, the payment details and the term of the agreement. The draft form contains numerous standard provisions as well as optional language to ensure that the specific understandings between parties are addressed. This document should be used by a personal finance, estate planning or retirement planning consultant and a client when entering into an agreement for services. CONSULTING AGREEMENT THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of the ___ day of _____, 20__, [Instruction: Insert date.] by and among _____ [Instruction: Insert client name.] ("Client"), and _____ [Instruction: Insert consultant’s name.] ("Consultant"). Client hereby retains Consultant to provide the consulting services described below with respect to certain of Client’s cash, securities, and other property and assets from time to time designated by Client (the “Assets”) on the terms and conditions set forth below. WITNESSETH: WHEREAS, Consultant is recognized as a person with expertise in certain areas of investment consulting; and WHEREAS, the Client desires to retain Consultant to provide services related to and in support of efforts in which Consultant has expertise; and WHEREAS, Consultant is in the business of providing such consulting services and has agreed to provide the services in accordance with the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Consultant shall furnish the Client with advice, information, judgment and knowledge in accordance with the standards of care set forth in this Agreement with respect to the services related to and in support of efforts in which Consultant has expertise which is to be provided in accordance with this Agreement. Consultant agrees to provide Client with the following investment consulting services _____. [Comment: Insert specific services Consultant shall perform under Agreement.] The Assets initially shall consist of the following: _____. [Instruction: Insert applicable information. If necessary, attach as a separate schedule.] 2. The term of this Agreement shall begin on _____ [Instruction: Insert commencement date.] and shall, subject to the provisions for termination set forth herein, continue until and terminate on _____ [Instruction: Insert termination date.]. Upon termination, Consultant shall follow applicable industry standards and practice to promptly discontinue all work, unless the termination notice directs otherwise; and deliver or otherwise make available to Client all data, reports, summaries and other information that may have been accumulated by Consultant in performing under this Agreement, whether completed or in process. 3. The Consultant will use its best efforts in accordance with industry standards to select and recommend investments for the Assets to protect capital, generate income and obtain capital growth without regard to the taxation of the income or growth. It shall be the Client’s responsibility to advise the Consultant in writing of any objectives contrary to these and any changes or modification to Client’s financial circumstances therein. © Copyright 2012 Docstoc Inc. 2 4. For all services that Consultant renders to the Client during the term hereof, the Client will pay Consultant a retainer of $_____ per month, payable on the first day of the month. If this agreement terminates on a date other than the first of a month, a prorated share of the minimum fee will be due for the final month. A representative of Consultant, who is knowledgeable and familiar with the Assets and this Agreement, shall meet periodically with representatives of Client as required to review the status of the Assets. Travel to meetings with Client, lodging and related expenses of these meetings shall be at the expense of Consultant. To the extent that it does so for other similarly situated clients, Consultant may invite Client to participate in annual meetings, special meetings and other conferences or programs. All registration fees, materials, accommodations and the cost of meals and refreshments provided by Consultant to Client, as attendees at such meetings or programs, shall be paid for by Consultant from its fees as part of the services provided in exchange for the fees. [Instruction: Insert applicable payment agreement, including any revision to the hours/days of services.] Late payments by Client shall be subject to late penalty fees of _____% [Instruction: Insert number.] per month from the due date until the amount is paid. 5. All information received by Consultant (including for purposes hereof, Consultant’s agents and employees [Comment: Depending on size/formation entity of Consultant’s firm, parties to Agreement may wish to consider other persons to include in here, including but not limited to, directors and shareholders of Consultant.]) directly or indirectly from Client shall be regarded and treated as confidential and shall not be disclosed to any third party except as agreed upon in writing by Client or otherwise required by law or valid court order. Consultant shall not be free to divulge or to act upon such information with respect to the performance of its services hereunder. Notwithstanding the above Client agrees to allow Consultant to use Client’s name on a client list so long as a disclaimer is used stating the Consultant does not know if the Client would recommend using its services and no confidential information with regard to client’s assets or policies is revealed. Furthermore, Client acknowledges certain services Consultant offers and/or provides Client and other clients require the use and anonymous disclosure of client data, including portfolio performance and trading data. 6. Client agrees to provide, or cause its custodian bank, administrator, attorney, trustee, present or former investment consultant, actuary, consultants, other third parties, or investment managers (hereinafter referred to as “Representatives”) to provide Consultant with any and all reasonably necessary and appropriate information for Consultant to begin to perform its obligations under this Agreement. This information includes liquidity needs, historical performance information, investment guidelines, and other pertinent information, in each case to the extent reasonably available, as requested by Consultant from time to time, including, without limitation, a written summary of any investment limitations or restrictions. Client, directly or through its Representatives, also agrees to inform the Consultant as soon as reasonably possible of any change in circumstances affecting the needs or goals of the Client, as the case may be. Client understands © Copyright 2012 Docstoc Inc. 3 that in providing its services hereunder, Consultant will rely on the information from time to time provided to it by Client and Client’s Representatives. Consultant shall not be required to verify any information obtained from Client or Client’s Representatives. Consultant shall not be liable for the accuracy and completeness of information furnished or representation made by such Representatives. 7. Client hereby agrees to provide any of Client’s Representatives with written approval to speak with Consultant regarding any confidential information necessary for Consultant to perform its obligations pursuant to this Agreement. 8. Consultant shall make reasonable efforts to inform Client of changes in estate or retirement benefits law or regulation applicable to this Agreement. Client understands, acknowledges and agrees it is solely responsible, in its own discretion, and at its sole cost and expense to review and revise any necessary estate planning documents in accordance with any such changes and/or any determinations made with respect to the Assets. 9. Consultant shall not be obligated to perform and Client will not request performance of any services which may be deemed to constitute the unauthorized practice of law. Client will be solely responsible to obtain legal advice, reviews and/or opinion as necessary or advisable in Client’s sole discretion, and at Client’s sole cost and expense. 10. Client hereby understands, acknowledges and agrees Consultant’s [Comment: Depending on size/formation entity of Consultant’s firm, parties to Agreement may wish to consider other persons to include in here, including but not limited to, agents, employees, directors and shareholders of Consultant.] advice to Client pursuant to this Agreement is limited to recommendations and Client shall retain absolute discretion over and responsibility for the implementation of Consultant’s recommendations. Nothing herein shall require Client to engage any investment managers recommended by Consultant or to follow any recommendation provided by Consultant. Consultant makes its recommendations based upon information obtained and analyzed by a wide variety of public and private sources, including, in the case of investment managers, periodic questionnaires and interviews. Although the information collected by Consultant is believed to be reliable and is compiled in accordance with accepted industry standards, Consultant cannot guarantee the accuracy or validity of any or all such information. Consultant shall not be liable for any losses or expenses incurred by Client as a result of fraudulent actions or misrepresentations made by Client’s Representatives. Client understands that the prior performance of an investment manager is not necessarily indicative of such investment manager’s future results. [Optional language, revise or delete as desired: Consultant [Comment: As above, depending on size/formation entity of Consultant’s firm, parties to Agreement may wish to consider other persons to include in here, including but not limited to, directors and shareholders of Consultant.] will not manage Client’s Assets or exercise any investment discretion or perform any discretionary trading with respect to the Assets. Consultant shall have no © Copyright 2012 Docstoc Inc. 4 responsibility for voting any proxies solicited by or with respect to issuers of securities in which Client Assets may be invested from time to time. Consultant is not responsible for diversifying any Client Assets, even if those assets have an impact on or would be affected by the investment program Consultant is advocating. In addition, Consultant and its agents and/or employees will not render, or be responsible for rendering, any legal, accounting or actuarial advice to Client or preparing for Client any legal, accounting or actuarial document.] To the extent permitted by applicable law, Consultant, its agents and employees [Comment: As above, depending on size/formation entity of Consultant’s firm, parties to Agreement may wish to consider other persons to include in here, including but not limited to, directors and shareholders of Consultant.] will not be liable for any losses or expenses incurred by Client, as a result of any action or omission by unrelated third parties, or Consultant, except to the extent caused by Consultant’s negligence, willful misconduct, bad faith, or violation or reckless disregard of its obligations and duties under this Agreement. For all purposes of this Agreement, Consultant shall be deemed to be an independent contractor and shall have no authority to act for or represent Client in any way and shall not be deemed to be an agent of Client. Nothing in this Agreement may be interpreted or construed to create any employment, partnership, joint venture, or other relationship among Consultant and Client. The parties understand and agree that no relationship of employer-employee exists between Consultant and Client; that Consultant and any agents or employees of Consultant are not officers or employees or agents of Client; and that Client is not required to make any deductions from the compensation payable to Consultant. As an independent contractor, Consultant hereby holds Client harmless from any and all claims that a third party may bring alleging that Client is Consultant’s employer under this Agreement. 11. Consultant holds itself out as an expert with respect to consulting on investments. Consultant represents itself as being possessed of greater knowledge and skill than the average person. Accordingly, Consultant is under a duty to exercise a skill greater than that of an ordinary person and the manner in which Consultant carries out its duties under this Agreement will be evaluated in light of Consultant’s superior skill. Consultant shall exercise the care, skill, prudence, and diligence under the circumstances then prevailing that a similar expert acting in a like capacity and familiar with such matters and consistent with the objectives of this Agreement would use in the conduct of an enterprise of like character and with like aims. Consultant [Comment: As above, depending on size/formation entity of Consultant’s firm, parties to Agreement may wish to consider other persons to include in here, including but not limited to, directors and shareholders of Consultant.] shall not be liable for any error of judgment with respect to their investment advice and recommendations, provided they act in good faith; but nothing herein contained shall be construed to protect Consultant against any liability by reason of negligence, willful misconduct, bad faith, or a © Copyright 2012 Docstoc Inc. 5 violation or reckless disregard of their obligations and duties under this Agreement. Federal and state securities laws impose fiduciary duties and liabilities under certain circumstances on persons who act in good faith. Therefore, nothing herein shall constitute a waiver or limitation of any rights which Client may have under any federal or state securities laws. Consultant shall maintain, as long as this Agreement is in effect, fiduciary liability or investment counselor’s errors and omissions insurance against potential liabilities which it may incur for breach of any fiduciary duty to Client in an amount not less than _____ [Instruction: Insert amount.], naming Client as an additional insured. The insurance provided shall be primary insurance and any insurance carried by Client shall be excess and not contributory to that provided by Consultant. Insurance required by this section shall be in the form of policies or contracts of insurance with a carrier rated at least A by A.M. Best. Evidence of such insurance shall be in the form of a certificate of insurance and Consultant shall notify Client in writing if such insurance is canceled or lapses. 12. Optional language: This Agreement shall terminate in the event Consultant voluntarily ceases performing his/her duties and such cessation continues for a period of more than thirty (30) days after notice from Client, if Consultant becomes physically or mentally unable to perform his/her duties. In such event, the termination date shall be deemed to be the date on which such services ceased to be performed. 13. In the event of a breach hereunder and a failure to cure such breach within thirty (30) days of written notice of such breach, this Agreement may be terminated by either party upon written notice. 14. The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provision to the extent enforceable in any jurisdiction, shall nevertheless be binding and enforceable. 15. The rights and obligations of the Client under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Client. The rights, obligations and duties of Consultant hereunder may not be assigned or delegated without the Client's prior written consent. 16. The Consultant represents and warrants to the Client that he/she is under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement, or which will interfere with the performance of his/her duties or provision of services hereunder. Consultant represents and warrants that the execution and performance of this Agreement will not violate any policies or procedures of any other person or entity for which he/she performs services concurrently with those performed herein. 17. [Comment: This language is optional, but also should be carefully reviewed if used to ensure the drafter language is correct as applied to the particular situation of the parties.] The Client acknowledges that this Agreement was prepared by counsel for the Consultant and that it may contain terms and conditions onerous to Client. The Client expressly acknowledges that © Copyright 2012 Docstoc Inc. 6 Consultant has given it adequate time to review this agreement and to seek and obtain independent legal advice, and represents to Consultant that it has in fact sought and obtained independent legal advice and is satisfied with the terms and conditions of this Agreement. Any terms herein which may be determined to be ambiguous shall not be construed against the Consultant. Rather, the parties shall be deemed to have equal bargaining power and such terms shall be deemed to have been negotiated by and between the parties. 18. Any notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and delivered when delivered in person, two (2) days after being mailed postage prepaid by certified or registered mail with return receipt requested, or when delivered by overnight delivery service or by facsimile to the recipient at the following address or facsimile number, or to such other address or facsimile number as to which the other party subsequently shall have been notified in writing by such recipient: If to the Client: [Instruction: Insert Client notice information here.] If to the Consultant: [Instruction: Insert Consultant notice information here.] 19. Either party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to prior or future violations thereof or of any other provision of this Agreement, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party's right to assert all other legal remedies available to him or it under the circumstances. 20. This Agreement will be governed by and interpreted in accordance with the substantive laws of the State of _____ [Instruction: Insert state.] without reference to conflicts of law. [Comment: Parties may wish to consider including alternative dispute resolution provisions.] 21. The various captions and section headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of any of the provisions of this Agreement. 22. The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. 23. The terms of this Agreement are confidential and no press release or other written or oral disclosure of any nature regarding the terms of this Agreement shall be made by either party without the other party’s prior written approval (except as otherwise set forth herein). 24. With respect to its subject matter, this Agreement constitutes the entire understanding of the parties superseding all prior agreements, understandings, negotiations and discussions between them whether written or oral, and there are © Copyright 2012 Docstoc Inc. 7 no other understandings, representations, warranties or commitments with respect thereto. 25. This Agreement may be signed in one or more counterparts, each of which when exchanged will be deemed to be an original, binding upon the parties as if a single document had been signed by all, and all of which when taken together will constitute the same agreement. Any true and correct copy of this Agreement made by customary, reliable means (e.g., photocopy or facsimile) shall be treated as an original. 26. No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged. 27. The person(s) executing this agreement hereby represent and warrant that each respectively has the authority to execute this agreement on behalf of the party for which he is executing. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first written above. _________________________ Consultant _________________________ [Instruction: Insert Client signature block.] © Copyright 2012 Docstoc Inc. 8
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