This Investment Advisory Agreement (the “Advisory Agreement”), which is entered into by you (“you” or the “Client”) and Daba Advisors, LLC (“Daba”, “we” or “our”), sets forth the terms and conditions under which Daba offers the program described in Section 1 below (the “Program”) and governs the Advisory Services (as defined below) that we provide you with respect to your participation in the Program. This Advisory Agreement applies to you if you are an individual who is establishing or has previously established one or more of the accounts enumerated in Section 1 below, including an individual who has previously entered into an Advisory Agreement with Daba. For an individual who has previously entered into an advisory agreement with Daba, the Advisory Agreement supersedes all prior advisory agreement(s) between Daba and you. By clicking or tapping “Accept and continue” or otherwise acknowledging your consent electronically, you agree to enter into and be bound by the terms and conditions of this Advisory Agreement. For the avoidance of doubt, this Advisory Agreement may govern multiple accounts enumerated in Section 1 below established by the same Client, and shall be deemed to govern each such account upon the Client’s establishment of each account.
YOU MUST READ AND CONSIDER THIS ADVISORY AGREEMENT IN ITS ENTIRETY, INCLUDING SECTION 6 AND ATTACHMENT B HERETO (DEPOSITS AND PURCHASES; AUTO- DABA FEATURES TERMS AND CONDITIONS) AND SECTION 20 (ARBITRATION AGREEMENT), CAREFULLY AND CONTACT DABA TO ASK ANY QUESTIONS YOU MAY HAVE BEFORE ENTERING INTO THIS ADVISORY AGREEMENT. AS NOTED, THIS ADVISORY AGREEMENT CONTAINS AN ARBITRATION PROVISION. SEE SECTION 20 FOR AN IMPORTANT NOTICE CONCERNING YOUR RIGHTS.
PURSUANT TO THE DABA ADVISORS, LLC ESIGN AGREEMENT (THE “ESIGN AGREEMENT”) THAT YOU ARE REQUIRED TO ENTER INTO AS A CONDITION OF EXECUTING THIS ADVISORY AGREEMENT, CLICKING THAT YOU ACCEPT HAS THE SAME LEGAL EFFECT AS SIGNING A PAPER VERSION OF THIS ADVISORY AGREEMENT. YOU ACKNOWLEDGE THAT THIS ADVISORY AGREEMENT MAY BE AMENDED FROM TIME TO TIME. AMENDED AGREEMENTS WILL BE POSTED ON THE DABA WEBSITE, WWW.GETDABA .IO (THE “WEBSITE”) OR MOBILE APPLICATION (COLLECTIVELY WITH THE WEBSITE, THE “PLATFORM”). YOU WILL BE NOTIFIED OF AMENDED AGREEMENTS BY WEBSITE POSTINGS, EMAILS LINKING TO THE WEBSITE, OTHER EMAILS, TEXT OR PUSH MESSAGES, TRADITIONAL MAIL OR OTHER MEANS OF NOTIFICATION VIA THE APPLICATION. YOU AGREE TO CHECK THE WEBSITE FOR NEW VERSIONS OF THIS ADVISORY AGREEMENT AND OTHER AGREEMENTS RELATING TO YOUR PARTICIPATION IN THE PROGRAM. YOU AGREE THAT, BY KEEPING ONE OR MORE OF YOUR INDIVIDUAL ACCOUNTS (AS DEFINED BELOW) OR USING THE PROGRAM WITHOUT OBJECTING IN WRITING AFTER DABA NOTIFIES YOU OF A NEW VERSION OF AN AGREEMENT, YOU WILL AGREE TO AND ACCEPT ALL TERMS AND CONDITIONS OF ANY AMENDED AGREEMENT, INCLUDING ANY NEW OR CHANGED TERMS OR CONDITIONS.
1. Terms and Conditions of the Program
The Program is designed to provide an easy way for individuals to invest in start-up companies based in Africa.1
You hereby understand and agree that the Program: (a) is not a complete investment program; (b) does not account for multiple goals; (c) does not consider outside assets, concentration, debt or other accounts you may have with Daba, any of its affiliates or with any third party; (d) has limits on asset allocation models, profiles and underlying instruments; (e) is not suitable for all investors; and (f) relies on the information provided by you, including the accuracy thereof, in providing investment advice, and does not verify the completeness or accuracy of such information.
Where Daba agrees to accept and open an account for the Client, Daba will open such account with the Client pursuant to the terms and conditions of this Advisory Agreement. Daba will aid you, through the Platform, in establishing an account at , a [ ] corporation and registered broker-dealer unaffiliated with Daba (“[ ]” or in the capacity of broker, “Broker,” and in the capacity of custodian, “Custodian”), the clearing broker and qualified custodian for Client accounts. Daba may delay establishing a Daba Account at [ ] until such time as the Client authorizes a contribution to fund the Daba Account and/or until such time as Daba receives all required account opening information from you in order to establish the Daba Account.
You further acknowledge that the services you receive through participating in the Program are sufficient consideration for you to enter into this Advisory Agreement.
2. Program Advisory Services
Through the Program, Daba offers various publicly traded securities including, primarily but without limitation, Single Stocks, ETFs, ADRs, and/or similarly traded instruments (“Instruments”), which may be selected by Daba, third parties or affiliates, and various asset allocation portfolios and/or combinations of Instruments (the “Portfolios”), which may be developed by Daba, third parties or affiliates. The Instruments are selected to make available exposure to a broad range of companies, industries, economic sectors, geographic regions, social beliefs, and investment strategies, and the Portfolios are designed to allocate assets among Instruments that represent different asset classes. As of the date of this version of the Advisory Agreement, the Program is offering various Instruments selected by Daba and offers various strategic Portfolios designed by Daba both of which are and/or invest in unaffiliated investments. Daba reserves the right to change, in its sole discretion from time to time and without prior notice to Clients: (i) the Suggested Investments available through the Program that it deems appropriate to address the investment objectives, investment time horizons, and risk tolerances of its clients; (ii) the Instruments that comprise each of the Portfolios; and (iii) the relative weightings of the Instruments within each of the Portfolios.
1 We will need to flesh this out after speaking with Boum.
The Program will use the Platform to recommend Suggested Investments for you based on certain Client Information (as defined in Section 23 below) you provide. The Program does not consider the entire range of information provided through the Platform for purposes of recommending Suggested Investments. You agree to access and review through the Platform information identifying and describing the Suggested Investments at least annually.
You acknowledge that, based on the Client Information you provide, investment factors deemed appropriate by Daba, and the investment advisory methodology used in developing the Platform, the Suggested Investment(s) comprise(s) the investment advice that Daba recommends for you. However, you agree that there is no guarantee, representation, warranty, or covenant that the Suggested Investment(s) will perform better over any time period than any other Portfolio, Instrument, and/or investment or combination thereof made available through the Program or otherwise available in the market.
You are not bound by the recommendation generated by the Platform and may, at the time when you receive such recommendation, select the Portfolios and/or Instruments available through the Program in lieu of or in addition to the Suggested Investment(s) available through the Program. You may cause the Platform to generate different Suggested Investments at any time by revising your Client Information. Any Portfolio and/or Instrument you ultimately select, taking into account any self-imposed investment restrictions you place on your portfolio subject to the terms and conditions of this Advisory Agreement, are referred to as the “Selected Investments.” You may impose reasonable investment restrictions on the management of your Daba Account by means of your own investment discretion. Clients should be aware that the performance of an Daba Account with self-imposed investment restrictions may differ from and/or be lower than the performance of Daba Accounts without such self-imposed restrictions.
You may change your Selected Investments at any time. You acknowledge and agree that you are solely responsible for the decision to invest in your Selected Investments. Any Instrument credited to, or order to buy an Instrument in, or any other similar rewards or promotional program(s) offered by Daba and/or its affiliates, is a Selected Investment, pursuant to and in accordance with the then-effective terms and conditions of any such rewards programs, for purposes of this Advisory Agreement.
Daba shall not have authority or discretion to designate the Selected Investment(s) for implementation in your Daba Account. You further acknowledge and agree that it is your responsibility to review and carefully consider the information available on the Platform about each of the Suggested Investments before choosing any Selected Investment. Daba’s Suggested Investments shall not constitute legal or tax advice, analysis or opinion.
If you choose a Selected Investment other than a Suggested Investment, you acknowledge and agree, without limiting any other provision of this Advisory Agreement, that:
● You assume the risk that your Selected Investment(s) may perform worse for you over any time period than a Suggested Investment or any other investment;
- Your Selected Investment(s) may not be suitable based on your risk tolerance, investment time horizon, or your investment objectives, financial condition, or other facts or circumstances that apply to you;
- Neither Daba nor its affiliates shall be liable for any losses or other damages resulting from your choice of a Selected Investment;
- The Program is designed for long-term investing in diversified holdings; and
- The Program has been designed to pursue specific investment objectives, including diversification. Choosing Selected Investments that are different from Suggested Investments will change the investment characteristics of the holdings of your Daba Account in a way that deviates from the investment advice provided and may adversely impact performance. While the Program may include investment advice that guides you to trade your holdings such that over time such holdings maintain close replication of a particular allocation, you agree that there is no guarantee, representation, warranty, or covenant that the holdings in your Daba Account will match any particular allocation. You acknowledge that various factors (including the timing and frequency of deposits and withdrawals, market volatility and disruptions, fractional share allocation and trading procedures, the timing and frequency of your choice of or changes to holdings in your Daba Account, access interruptions, and hardware or software failures) can impact the extent to which holdings in your Daba Account will replicate any particular allocation at any particular point in time. You further understand and agree that any strategic investment advice offered through the Program is based on a long-term view of the market. Accordingly,theProgramdoesnotprovidetacticaladviceandyoushouldnotexpectto see tactical changes to any investment advice in response to market volatility or other economic events. Notwithstanding anything to the contrary in any documentation associated with the Program and your Daba Account, you agree that Daba provides non-discretionary investment advice and shall be under no duty to, and makes no guarantee that it will, rebalance the assets in your Daba Account or purchase or sell any Instrument at any particular time or in any particular amount. You acknowledge, understand and agree that:
- Daba does not provide investment advice in a manner other than the investment advice described in this Section 2;
- Daba will provide investment advice and deliver the Advisory Services solely through the Platform and via email;
- Under the Program, you will not receive investment advice in person, over the phone, in live chat, or in any other manner other than through the mobile application and via e-mail; and
- You will not be entitled or able to transact in or hold securities in your Daba Account other than the Instruments that are offered through the Program.
In providing its services, Daba or any of its affiliates may, subject to applicable laws and regulations, engage unaffiliated vendors or other contractors to aid it in fulfilling its duties under this Advisory Agreement or to provide ancillary enhancements or features of the services contemplated herein. Additionally, in performing its obligations under this Advisory Agreement, Daba may, at its own discretion, delegate any or all of its discretionary investment, advisory, and other rights, powers, and functions hereunder to any of its affiliates or to any third parties, without your written consent.
3. Trading Authority and Your Instructions
Generally, the Client will direct and be responsible for the direction of investments through the Platform by: (i) carefully reviewing the information about investing and the Suggested Investments available on the Platform; (ii) carefully considering the Suggested Investment(s) that Daba generates for you through the Platform; (iii) choosing your Selected Investment(s); and (iv) deciding whether to exclude a Suggested Investment from your Selected Investment(s). Moreover, it is the Client’s responsibility to conduct and monitor the inflows and outflows to and from the Daba Account by using the Platform to initiate deposits to and withdrawals from the Client’s Daba Account. However, Daba shall have discretion over assets in your Daba Account to the limited extent that Daba shall have the following authority in connection with its provision of Advisory Services under this Advisory Agreement:
- to determine and modify from time to time which investments are offered through the Program and which Instruments comprise each of the Portfolios, including your Suggested Investment(s) and Selected Investment(s);
- to determine when, how often, and in what amounts to invest or reinvest dividends in your Daba Account;
- to determine when, how often, and in what amounts to have uninvested cash in your Daba Account held through the Custodian’s bank sweep program;
- to determine and modify from time to time procedures used in trading and allocating fractional shares in the Program;
- to determine the timing of purchases in relation to deposits;
- to determine the timing of sales and withdrawals in relation to requests for withdrawals or transfers; and
- to determine the action taken in response to a corporate action related to Instruments held in your Daba Account provided that no proxy is required to do so and the action taken by Daba is deemed to be in your best interest. The Instruments purchased or sold at your direction and/or held in your Daba Account may be either whole shares or fractional shares, depending upon the cost of the shares and the dollar amount contributed to your Daba Account. To the extent that fractional shares of any Instruments are allocated to any Daba Account on behalf of any Client, Daba divides a whole share and allocates any excess fractional shares to Daba’s fractional facilitation account. Daba in
turn accumulates these fractional shares. In accordance with Daba’s policies pertaining to the management of such accounts and positions, Daba will manage the fractional facilitation account through trades in whole share quantities. You understand and agree that fractional shares are typically unmarketable and illiquid if held outside of your Daba Account(s) and, as a result, fractional shares generally may not be transferable to another brokerage account. In the event of a liquidation or transfer of the assets in your Daba Account(s) to another account, you hereby authorize Daba to instruct the Broker and/or Custodian to sell fractional shares as necessary and transfer the cash to any subsequent custodian.
There is no minimum account balance requirement for opening an Daba Account. Daba reserves the right to change its minimum account balance requirement in its sole discretion.
You will not continue to receive Daba’s Advisory Services under this Advisory Agreement if an Daba Account has been closed. Daba and/or the Custodian may elect to close unfunded or underfunded Daba Accounts, however, Daba may continue to permit those account holders to access the Program (without the power to effect brokerage transactions).
4. Brokerage and Custody
As noted above, your participation in the Program requires that you enter into the Customer Agreement. Your receipt of brokerage services pursuant to the Program requires that you establish an Daba Account. The Customer Agreement pertains to the brokerage services provided by [ ] to effect brokerage transactions in your Daba Account. Under the Customer Agreement, and subject to its terms and conditions, [ ] is generally responsible for: (i) maintaining and recording transactions in cash and securities (including fractional shares) in your Daba Account; (ii) sending orders placed by Daba for execution, clearance, and settlement; and (iii) providing you with statements, confirmations, other required documentation, and other information about your Daba Account and transactions therein.
By entering into this Advisory Agreement, you authorize and instruct Daba to place orders to buy and sell securities on your behalf and at your direction. You acknowledge and agree that orders for purchases or sales in your Daba Account may be combined with orders for purchases or sales of securities in other accounts under the Program and/or with purchases or sales of securities by Daba into larger orders for aggregate transactions for each applicable security in the Daba Account. You agree that Daba will introduce orders to [ ] for clearance and settlement.
Daba may transmit or help facilitate your requests for withdrawals or transfers to the ACH Operator (as defined below) and/or the Custodian. Daba shall have no authority to initiate any withdrawal or otherwise to transfer any securities or money out of your Daba Account other than (i) fee deductions, or (ii) in connection with the termination of your Daba Account pursuant to the terms and conditions of this Advisory Agreement. Other than in connection with our automated deposit features (as described in Attachment B), in each case if you have chosen to enroll in one or more of such features, Daba shall have no authority to initiate any deposit or otherwise transfer any securities or money into your Daba Account.
5. Client Rights and Obligations
The Client retains sole ownership of the Daba Account (i.e., the right to withdraw securities or cash, exercise or delegate proxy voting, proceed directly as a security holder against the issuer of any security in the Daba Account, and receive transaction confirmations), and the Client may make deposits and withdrawals at any time, subject to any maintenance requirements of the Custodian. As noted in Section 14, Daba has no right to, and shall not, vote any securities in your Daba Account; voting any securities in your Daba Account is your responsibility.
6. Deposits and Purchases
You agree that you will fund your Daba Account by contributions made through a Funding Account, by using the Platform to direct the transfer of money to your Daba Account(s) in accordance with the terms and conditions of this Advisory Agreement.
You agree and acknowledge that there may be no more than one other bank account connected to your Daba Account for deposit funding purposes unless otherwise permitted by Daba . You agree that, by initiating or directing a deposit, you authorize the bank or other vendor that Daba engages from time to time to facilitate the use of the Automated Clearing House (“ACH”) payment system for the transfer of money to or from the Custodian (such bank or vendor, the “ACH Operator”) to request that the financial institution that maintains your Funding Account transfer the amount of the deposit to the Custodian for deposit in your Daba Account. You agree and acknowledge that you are responsible for any fees, charges, or expenses imposed by your financial institution that maintains your Funding Account in connection with any deposit or transfer of money to or from your Daba Account. You further agree and acknowledge that, unless otherwise agreed to by Daba and the Custodian, you do not have any right to fund (or direct the funding of) any deposit or transfer of money to or from your Daba Account in any manner other than by an ACH transfer to the Custodian. Daba and the Custodian reserve the right to accept cash funded from other sources as they may mutually agree and to the extent permitted by applicable law and such cash funding methods may be subject to additional terms and conditions, which will be disclosed to you. Ancillary fees associated with cash funded from sources other than ACH transfer to the Custodian are listed in Attachment A, which fees shall be charged to the Client and shall be in addition to the Daba Fee. Daba also reserves the right to accept investments funded from other sources or through other means on a case by case basis.
You further agree that, by initiating, authorizing, or directing a deposit or transfer to your Daba Account, you authorize Daba to place orders with the Broker on your behalf for purchases of the securities that comprise your Selected Investments at the time(s) and in amounts calculated by Daba’s portfolio management system. You agree and acknowledge that any deposit or transfer to your Daba Account, and/or purchases of securities, may not be cancelled by you following the initiation, authorization, and/or direction of such transaction. Orders from all of the Platform’s users are combined and orders that have been approved are released to be executed. All orders are executed through the Broker’s average price account, which allocates all executions to the Client’s Daba Account(s) with any residual (due to round ups) being allocated to Daba’s fractional facilitation account. In order to permit sufficient time to ensure that the transfer of assets into your Daba Account has been successfully completed by the financial institution that maintains your bank account, Daba may wait up to five Business Days after the day the
Custodian credits the applicable deposit to your Daba Account to generate and place the orders for such purchases. As used herein, “Business Day” means any day on which all banks (or the applicable branch thereof) involved in any transfer of funds are physically open for business during their normal business hours, and specifically excluding any U.S. federal holiday and any day on which any applicable securities exchange is not open during its normal business hours. You hereby acknowledge and agree that, as a result, each deposit or transfer you make generally will not be invested in your Selected Investment(s) for up to five Business Days and that such uninvested cash will not be subject to financial gains or losses resulting from movement in market prices during that time period. In the event a deposit or transfer of assets into your Daba Account is not successfully completed within seven (7) calendar days of your initiation, Daba may cancel any corresponding order to purchase securities that you had directed in connection with such deposit or transfer.
You may, subject to the terms and conditions of this Advisory Agreement, fund your Daba Account by initiating or directing a deposit in any whole dollar amount of $15 or more through the Platform at any time. In addition to one-time deposits, you may elect through the Platform to makerecurringdeposits. YoumayfundyourDabaAccountwithrecurringdepositsbyenrolling in one or more of the Platform’s automated deposit features. The terms and conditions governing your use of our automated deposit features are attached as Attachment B, which incorporated herein by reference. By enrolling in a feature, you acknowledge and agree to the terms and conditions as described in Attachment B. Note that these services may not have all information relevant to your decision to save money. Please consider all relevant information before deciding to enroll in an automated deposit feature. As noted in Attachment B, if you wish to cancel your enrollment in one or more of the automated deposit features in which you are enrolled, you must do so via the Platform. Your enrollment in an automated deposit feature remains in effect until such time you turn such feature off in the Platform or you close your Daba Account and/or this Advisory Agreement is terminated.
You represent and warrant that none of the money you deposit in your Daba Account is derived from, or will be used to promote the conduct of, any crime or other illegal activity. You agree not to deposit (or direct the deposit of) any money in your Daba Account that comes from, or that will be used to promote the conduct of, any crime or other illegal activity. You represent that no individual or entity has an interest in any money you use for deposits or in any money or securities in your Daba Account other than you or any other individual you have disclosed to Daba during account opening (including, but not limited to, a beneficiary in the case of a Custodial Account).
You may withdraw money from a Custodial Account by initiating a withdrawal request through the Platform at any time. You acknowledge and agree that, notwithstanding anything to the contrary in any agreement governing your participation in the Program, including this Advisory Agreement, you will not be able to request withdrawals, or sales, unless and until you connect a bank account to your Daba Account. You agree and acknowledge that there may be no more than one other bank account connected to your Daba Account for withdrawal purposes unless otherwise permitted by Daba. You agree that, by requesting a withdrawal, you authorize Daba to place an order with the Broker and/or Custodian on your behalf to sell the securities in your
Daba Account at the time(s) and in amounts calculated by Daba’s portfolio management system. You agree and acknowledge that any withdrawal or transfer from your Daba Account, and/or sales of securities, may not be cancelled following the initiation, authorization, and/or direction of such transaction. Daba will undertake good faith efforts to generate and place the orders for such sales on the Business Day you request a withdrawal, but you acknowledge and agree that such orders may be placed at any time within five Business Days after your request. Any withdrawal request you initiate will be sent to the ACH Operator. You agree that, by requesting a withdrawal, you authorize the ACH Operator to request that the Custodian transfer the proceeds of the applicable sales in the amount you request (or less if the money remaining in your Daba Account after deducting any Daba Fee (as defined below) or other fee due is less) to your bank account. You acknowledge and agree that the Custodian will not initiate a transfer of money for a withdrawal until the Business Day after the last applicable sale for such withdrawal has settled and that it may take up to seven to ten Business Days after the Custodian initiates a transfer of money for the proceeds of a withdrawal to arrive at the destination account.
You further acknowledge and agree that Daba and the Custodian may require additional information from you before effecting any withdrawal request, and that such requested withdrawal may be subject to delay or cancellation in the event that you do not timely provide such additional information.
Daba and the Custodian reserve the right to permit cash withdrawals to other sources as they may mutually agree and to the extent permitted by applicable law. Any such cash withdrawal methods may be subject to additional terms and conditions, which will be disclosed to you. Ancillary fees associated with cash withdrawals to sources other than ACH transfer from the Custodian are listed in Attachment A, which fees shall be charged to the Client and shall be in addition to the Daba Fee. You acknowledge that if you are permitted to withdraw, and do withdraw, an amount below the value at which such ancillary fee converts to a variable pricing model, the ancillary fee is charged as a fixed fee that does not vary based on the amount of your withdrawal, and accordingly, the overall withdrawal fee paid may be disproportionately high relative to the amount of your withdrawal. In such case, you further represent and warrant, and have determined, that the ancillary fee is reasonable irrespective of your withdrawal amount.
8. Term and Termination
This Advisory Agreement becomes effective as of the date it is accepted by Daba, as evidenced in accordance with Daba’s procedures and/or practices regarding account opening. The date your Daba Account(s) is opened may or may not be the same effective date of this Advisory Agreement.
You agree that Daba and/or any of its affiliates or contractors may suspend the provision of services to you or delay, limit, restrict, or refuse any transaction for you at any time for any length of time without prior notice to you if Daba believes in good faith that such suspension or delay is necessary or appropriate: (i) to ensure compliance with, or to avoid, violating any law or regulation applicable to Daba or its affiliates or a transaction relating to the Program; (ii) to comply with a request or guidance from a regulatory or law enforcement authority with jurisdiction over Daba or its affiliates or a transaction relating to the Program; (iii) to avoid a loss to Daba or its affiliates (including if your payment of the Daba Fee is 60 days or more overdue,
except with respect to charges then under reasonable and good faith dispute); (iv) to remediate or otherwise address problems with technology; (v) due to interruptions in the access to or operation of any technology that Daba or its affiliates directly or indirectly uses in connection with the Program; (vi) to prevent a breach or violation of any term, condition, or other provision of this Advisory Agreement; or (vii) to obtain from you any additional information that Daba in its reasonable discretion deems necessary for Advisory Services to be provided to you pursuant to this Advisory Agreement. Notwithstanding anything to the contrary in this Advisory Agreement, including, without limitation, in Sections 2 and 3, Daba reserves the right, at any time and without notice, to delay or manage the trading of client orders if Daba determines it is appropriate and consistent with its obligations under this Advisory Agreement.
You may terminate this Advisory Agreement, one or more of your Daba Accounts, at any time for any reason by contacting Daba at [ ]or by sending an e-mail to [ ] Daba may terminate this Advisory Agreement, one or more of your Daba Account(s), at any time for any reason by sending you a notice of termination by e-mail, by mail or other means of notification via the Platform. Specifically, and not limiting the foregoing sentence, Daba may terminate your Daba Account following a period of 30 consecutive calendar days of an unfunded or underfunded balance.
The termination of this Advisory Agreement, and/or your Daba Account(s) will occur as follows:
● If either Daba or you terminate this Advisory Agreement, the Customer Agreement applicable to any and all of your Daba Account(s) will be deemed to have been simultaneously terminated and any and all of your Daba Account(s) will be terminated;
● If either Daba or you close one or more but not all of your Daba Accounts, you will be deemed to have simultaneously terminated the Customer Agreement with respect to any such closed account, but not the others;
● If either Daba or you terminate your Daba Account, the Custodian and/or Broker will, before closing your Daba Account, settle any purchases or sales pending when Daba sends or receives a request to close your Daba Account; and
● If either Daba or you terminate your Daba Account, Daba and/or the Custodian will, before closing your Daba Account, deduct any unpaid fees, including those owed for ancillary services, including paper delivery of documents, transfer of shares, or physical delivery of shares.
If either Daba or you request to close any of your Daba Accounts, you hereby authorize Daba to instruct the Broker and/or Custodian to sell all shares in your Daba Account and any distributions generated by such shares following such request, and to send the cash, less any portion of the Daba Fee or other fees due, to either your address of record or the bank account connected to your Daba Account. Notwithstanding the foregoing, if you explicitly request that shares be transferred to another custodian or broker-dealer, Daba will instruct the Custodian to transfer, in accordance with your instructions and subject to such new custodian policies and procedures with respect to fractional shares, the shares remaining after each of the following are
paid for with the proceeds of a sale: (i) any withdrawals pending when the termination notice was received or sent by Daba; (ii) any unpaid Daba Fee or portion thereof due; (iii) the fees charged for processing the in-kind transfer to another custodian or broker-dealer; and (iv) any other fees due. You hereby acknowledge that, subject to the terms of the Customer Agreement, you may be required to provide additional instructions to the Custodian in order to obtain your cash or transfer your shares in the event of the termination of your Daba Account.
Upon cancellation or termination of this Advisory Agreement, we may immediately deactivate your user account (which includes your Daba Account(s)) and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Platform (or part hereof) and/or the Program, except as we may otherwise provide from time to time.
Your death or incapacity shall not terminate the authority of Daba granted herein until Daba receives written termination notice thereof from your executor, guardian, attorney-in-fact or other authorized legal representative.
9. Legal Capacity
If this Advisory 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 Advisory Agreement in such a capacity. The Client represents that he or she has reached the age of majority and no person shall use or attempt to use the Program unless he or she is of such age.
It is understood by the Client that Daba is licensed/registered with all of the appropriate regulatory jurisdictions that Daba believes it has a duty to be licensed/registered. It is understood and acknowledged by the Client that Daba is not engaged in the practice of law or accounting, and as such, will not render any legal, tax, or accounting advice hereunder, nor prepare any legal or accounting documents for the implementation of any of the Client’s financial or investment plans.
Nothing in this Advisory Agreement or any other document received from Daba shall be construed as providing any legal, accounting, estate, actuary, or tax advice. The Client agrees to review information available to the Client regarding the securities, as well as the brokerage statements, transaction confirmations and tax reporting forms provided by the Custodian for tax-related information. Each Client must rely upon its own representatives, including its own legal counsel and accountant, as to legal, tax and related matters concerning any investments, any assets in the Daba Account or any Daba Account transactions and for preparation of any legal, accounting or tax documents. You can access tax documents through the Platform when such documents are ready. You will also be able to download them from the Custodian’s website in the event you do not have access to the Platform.
The taxation of securities transactions is extremely complex and no attempt is made herein to fully describe the various tax rules that apply to such transactions or to explain in complete detail the rules which are mentioned. However, some general points may be noted. Any sales, exchanges or dispositions of securities may have U.S. federal, state, local and non-U.S. income
tax consequences for the Client and may result in the Client having to pay additional income taxes. An ETF may take many forms for U.S. federal income tax purposes, including a grantor trust, regulated investment company, or real estate investment trust, each of which has special tax considerations for U.S. taxable, tax-exempt and non-U.S. investors. Although not currently offered as an Investment on the Platform, an investment in a non-U.S. security, such a non-U.S. ETF, may have adverse tax consequences for certain U.S. Clients. For example, a non-U.S. ETF may constitute a “passive foreign investment company” and there is no assurance that Clients would be able to make a “qualified electing fund” election. Non-U.S. Clients may be subject to withholding tax on certain U.S.-source payments received with respect to securities held in their Account. Clients may have a variety of tax reporting obligations with respect to certain securities, including the filing of a FinCEN Form 114 and/or Internal Revenue Service Forms 8621,amongotherfilingandreportingobligations. Itispossiblethatincertaincircumstancesa Client may incur taxable income on their investments without a cash distribution to pay the tax due. EachClientshouldconferwiththeirpersonaltaxadvisorregardingthetaxconsequencesof investing with Daba based on the Client’s particular circumstances. The Client and Client’s tax advisors are responsible for how investments and the transactions in the Client’s Daba Account are reported to the Internal Revenue Service or any other taxing authority. Daba assumes no responsibility to the Client for the tax consequences of any transaction.
For the services provided by Daba under this Advisory Agreement, and the custodial and brokerage services provided by the Custodian and the Broker under the Customer Agreement (if any), you agree to pay a flat fee in order to establish and maintain one or more Custodial Accounts (the “Daba Fees”). For the avoidance of doubt, such Daba Fees include fees in connection with the investment Advisory Services provided by Daba under this Advisory Agreement and under the Program, fees in connection with the brokerage services provided by [ ], fees in connection with the custodian services provided by the Custodian, and account establishment/maintenance expenses.
A. Daba Fees
The Daba Fee is a “flat” fee based on the percentage of the amount of capital raised. Custodial Accounts that have a total Assets Under Management (“AUM”) of less than $200 will not be charged any fee. AUM is calculated across one or multiple Custodial Accounts owned by the same account owner. If the total AUM equals or exceeds $200, a Custodial Account owner will pay a $3/month for the first custodial account, and $1/month for each additional custodial account. If the total AUM equals or exceeds $15,000, a Custodial Account owner will no longer pay a monthly fee, and instead he or she will pay an annual fee in an amount of 0.25% of the average AUM over the course of the year and such fee is charged monthly.
A giver account will not be charged monthly or annual fee without active Custodial Accounts. A giver account will pay a $2 gift transaction processing fee per transaction.
B. Ancillary Fees
Fees that are excluded from the Daba Fee and for which you are independently responsible, if incurred, are listed on Attachment A, which is incorporated by reference herein. Certain other fees are not included in the Daba Fees and are paid for separately by the client. These include, but are not limited to, margin costs, charges imposed directly by a mutual fund or ETF, fees associated with “step out” transactions if the account uses custodians or broker-dealers other than [ ], deferred sales charges, odd-lot differentials, transfer taxes, wire transfer and electronic fund fees, and other fees and taxes on brokerage accounts and securities transactions. In addition, Daba, and/or the Custodian may charge fees in addition to the Daba Fee for ancillary services as disclosed in Attachment A to this Advisory Agreement. In particular, and notwithstanding anything to the contrary in this Advisory Agreement, you agree that, pursuant to the Customer Agreement, if you request the preparation and delivery of paper documents that Daba, the Broker, and/or the Custodian normally provides in electronic form or that Daba , the Broker, and/or the Custodian is not required to provide in paper form, Daba , the Broker, and/or the Custodian charge additional fees for the preparation and delivery of such paper documents. From time to time, in their sole discretion, Daba, the Broker, and/or the Custodian may adjust the amounts or types of fees they charge for ancillary services. Fees for ancillary services will be deducted from one of either your Daba Account or your Funding Account in the same manner as you are charged for the Daba Fee. You may obtain the current schedule of such fees and services through the Website or by contacting Daba at [ ] or by sending an e-mail to [ ]. As described in Section 4 above, when placing orders for various customers across portfolios, it may be necessary from time to time to aggregate orders and some of the orders aggregated may include accounts in which Daba , our employees and/or principals, or Broker have an economic interest, and it is possible that some orders receive better execution than others. Additionally, as described in Section 11 above, our fee structure gives us an incentive to encourage you to open more accounts with us and use more of our services. As a result, there is a conflict of interest for Daba in performing its services pursuant to this Advisory Agreement. However, Daba will not be precluded by any such conflict from exercising its judgment in your best interest.
C. Other Terms and Conditions of Daba Fees
Unless otherwise agreed between the parties hereto, the Daba Fee is payable monthly in advance and will be billed during the monthly period for which the services are performed. The monthly billing period is each calendar month. The Daba Fee is determined as described in Sections A above.
Daba reserves the right to discount or waive any fees associated with the Program in its sole discretion.
The Daba Fees vary as clients’ AUMs, the number and type of clients’ accounts vary. This will result in one client paying different fees (as applicable) than another client for similar services. In addition, lower fees for comparable services described may be available from other sources.
The Daba Fee shall be deducted from your Funding Account, as described below.
You authorize and direct Daba to deduct the Daba Fee directly from your Funding Account. You agree and acknowledge that such fee deduction may trigger rebalancing of your Daba Account, in accordance with Daba’s rebalancing procedures and portfolio management system, including
as described in this Advisory Agreement. Fees deducted from your Daba Account will be reflected in the account statements provided to you by the Custodian.
You agree and acknowledge that you are responsible for paying any and all fees, including, without limitation, the Daba Fees, the ancillary fees, that you owe pursuant to this Advisory Agreement. You are responsible for maintaining complete and accurate billing and contact information with Daba. You acknowledge that such fees may change from time to time and will be available on the Website and in the Brochure (as defined below). In the event of a change in fees, Daba will provide you notice electronically on the Website. You agree to check the Website from time to time for updates to the Daba Fees applicable to you.
You acknowledge that Daba designed the Program with frequent investing in mind and that the fee structure might not be economical or appropriate for individuals looking to make few or infrequent small-dollar investments. You acknowledge that the Daba Fees may exceed the aggregate costs of purchasing separately the products and individual services that comprise the Advisory Services and the brokerage services offered through the Program.
You acknowledge that if your Daba Account(s) has or have a value less than the applicable value at which the Daba Fee converts to a variable monthly pricing model, the Daba Fee is charged as a fixed fee that does not vary based on the size of your Daba Account(s) and accordingly, the overall Daba Fee paid may be disproportionately high relative to the value of your Daba Account(s). You further represent and warrant, and have determined, that the Daba Fee is reasonable irrespective of whether your Daba Account has a value greater or less than the applicable conversion threshold.
Unless otherwise stated, the Daba Fee does not include any direct or indirect local, state, federal, or foreign taxes, levies, duties or similar government assessments of any nature, including value-added, use, or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with your participation in the Program, excluding taxes based on Daba’s net income or property. If Daba and/or the Custodian has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide Daba and/or the Custodian with a valid tax exemption certificate authorized by the appropriate taxing authority. When you withdraw money from your Daba Account, the Custodian may reduce the amount of the distribution by the amount of any tax mandatory withholding as required by applicable law. Notwithstanding the foregoing, Daba will not be responsible for the accuracy or timeliness of any such withholding effected or remitted by the Custodian, and will not be liable to withhold any penalties incurred by you in connection with your obligation to pay Taxes associated with your participation in the Program. As more fully described in Section 10, you acknowledge and agree that Daba does not provide tax advice.
12. Notices and Communication
Communications will be sent to the Client at the e-mail provided by the Client at the time the Client opens an Daba Account, or to another e-mail as may be provided to Daba in writing in the future. All communications sent to the Client at the given e-mail, whether by mail, facsimile, messenger, electronically, or otherwise, will be treated as if they were given to the Client personally, whether or not the Client receives them.
13. Proxies and Legal Proceedings
Daba will not vote proxies on behalf of the Client’s Daba Account. Additionally, Daba will not be required to take any action or render any advice with respect to voting of proxies solicited by or with respect to the issuers of securities in which assets of the Daba Account may be invested from time to time. Further, Daba will not take any action or render any advice, or otherwise be responsible, with respect to any securities held in or formerly held in the Daba Account, which are named in or subject to legal proceedings, including bankruptcies or class action lawsuits.
14. Investment Risks and Risk Acknowledgment
There are significant risks associated with any investment program, including Daba’s Program.
You understand and agree that neither Daba nor any of its affiliates has made, and is not making, any warranty or guarantee as to the performance or profitability of your Daba Account and/or any of the investments therein. Investment performance of any kind can never be predicted or guaranteed and Daba does not guarantee that you will avoid financial loss.
Daba does not make any guarantee that the investment objectives, expectations or targets described on the Platform will be achieved, including without limitation any risk control, risk management, or return objectives, expectations, or targets. Neither Daba nor any of its affiliates guarantees the success of any given investment decision or strategy that Daba may recommend or undertake, or the success of the overall management of the Daba Account through the Program.
The following risks are not inclusive and should be carefully considered by you. You acknowledge, understand and agree that:
- Investing in securities involves risk of loss, potentially significant, that you should understand and be prepared to bear.
- Daba does not guarantee any level of performance of any investments in your Daba Account(s) or that you will avoid financial loss. The value of your Daba Account(s) and the securities held in such account(s) will fluctuate due to a variety of reasons, including but not limited to market conditions, market sentiment, legislative or regulatory changes, inflation, interest rates, and other factors. The Daba Account(s) may suffer loss of principal, and income, if any, may fluctuate.
- ETF performance may not exactly match the performance of the index or benchmark the ETF is designed to track for a variety of reasons, including ETF expenses and costs not incurred by the relevant index or benchmark, the availability of certain securities comprising the relevant index or benchmark, and supply and demand of the ETF and/or securities held by the ETF.
- Past performance of any security or benchmark does not guarantee or indicate future results.
- Back tested performance of any Suggested Investment, Selected Investment, or other investment are hypothetical and do not reflect actual investment results. Any hypothetical back tested returns associated with any investment are based on assumptions and do not reflect actual results of any Daba Account. Such performance results, if any, were derived from the retroactive application of a model developed with the benefit of hindsight and not with real money at stake. No representation is being made that your Daba Account will or is likely to achieve results similar to any hypothetical results shown. Actual results may differ significantly from any hypothetical returns presented.
- Projected returns are hypothetical, do not reflect actual investment results, and are not guarantees of future results. Such projected performance is subject to a number of limitations and assumptions designed to determine the probability or likelihood of a particular investment outcome based on a range of possible outcomes. Performance of any Suggested Investment, Selected Investment, other investment or your Daba Account may differ materially from investment gains and avoidance of investment losses projected, described, or otherwise referenced in forward-looking statements, and the projected returns associated with any Investment may not materialize.
- By participating in the Program you may lose opportunities to make other investments and to realize gains from such other investments.
- Investments in your Daba Account are not guaranteed by the Federal Deposit Insurance Corporation (“FDIC”), any bank, or any government, except that uninvested cash held through the Custodian’s bank sweep program is insured by the FDIC, subject to the FDIC coverage limit of $250,000 per depositor in each insurable capacity (e.g., individual or joint) at the relevant bank. If you have other deposits at the relevant bank, such deposits may be aggregated with the cash held in the bank sweep program for purposes of determining FDIC deposit insurance coverage.
- The services provided under this Advisory Agreement, including any Suggested Investment, are highly reliant on the Client Information, including the accuracy thereof, you provide through the Platform. If you provide inaccurate or incomplete information, or information you provided becomes inaccurate or incomplete, this could materially impact the quality and applicability of the advice you receive through the Program. Further, you understand that the Platform currently focuses exclusively on your investment time horizon and risk tolerance in recommending any Suggested Investment. There are many other components of Client Information that are not currently considered by the Program or the Platform in making recommendations. If you believe that there is additional information relating to your investment objectives and financial circumstances that should be considered to inform the investment advice and recommendations the Program provides, this may not be the appropriate program for you.
- The services provided under this Advisory Agreement, including any Suggested Investment, are highly reliant on the accurate performance of the algorithms underlying the Platform and the portfolio management system and the technology that generates such algorithms, among other things. A malfunction or failure in either an algorithm or the underlying technology could cause you to receive a Suggested Investment that is not suitable based on your risk tolerance and investment time horizon, and to experience losses, some or all of which could be significant. A malfunction, computer equipment failure, loss of internet access, viruses or other events may impair access to the services provided under this Advisory Agreement.
- The algorithm underlying the Platform’s recommendations rely on a number of assumptions based upon a limited amount of Client Information provided through the Platform and a number of other variables. Any one or all of these assumptions, whether or not supported by past experience, could prove over time to be incorrect, which could result in significant losses. There is no guarantee that the algorithm or Daba’s recommendations will necessarily produce the intended results, and they may prove incorrect and/or cause you to not achieve your investment objectives.
- The recommendations we provide and other information that appears on the Platform may be time sensitive, especially during times of significant market volatility and when there are time limits on the availability of a particular investment product. Thus, our recommendations and other information on the Platform may be subject to different interpretations as market conditions and other factors change.
- Data provided by Daba may not be free from error or inaccuracies.
- We rely on third parties – often to a material extent – for the provision of the investments, market statistics, Suggested Investment details, performance, and related information. Although we believe these third party service providers are generally reliable, there could be errors that are beyond our control in the information and/or services they provide and such errors could compromise the quality of our recommendations and otherwise compromise our ability to perform under this Advisory Agreement. Further, some or all of these agreements may allow the third party service provider to terminate the agreement for any reason or no reason at all with no advance notice to us. In such instances, our ability to perform under this Advisory Agreement could be materially compromised.
- Failures, delays, and/or interruptions in the timely or proper execution of trades and trading instructions may occur for any reason, including but not limited to the following: any kind of interruption of the services provided by the Broker or the Custodian, the inability to communicate with the Broker or Custodian, hardware or software malfunction, failure or unavailability, or force majeure.
- Volatility and liquidity conditions for a security may prevent you from selling such security at all or at a favorable time or price and/or you may be forced to sell at a significant discount to market value. In addition, ETFs may be adversely affected by volatility and liquidity conditions as they manage their holdings.
- The securities held in your Daba Account generally are valued based on reasonably available exchanged-traded security data, but we may receive or use inaccurate data that could adversely affect valuations, among other things.
- If you are establishing an Daba Account as a custodian for a minor under an UGMA/UTMA, you understand and agree that you assume any responsibility for any adverse consequences resulting from the establishment of an account.
- If you are not, or your beneficiary is not, a resident of the State that sponsors the 529 Plan (the “Out-of-State 529 Plan”) your Daba Account invests, you understand that if your or your beneficiary’s state of residence offers a 529 Plan (the “Home State 529 Plan”), the Home State 529 Plan may offer tax advantages or other benefits that may not be available to you or your beneficiary under the Out-of-State 529 Plan and that you are responsible for determining which 529 Plan is best suited to your investment needs based on your investment objectives, time horizon, tax status and other investment holdings.
15. Limitation of Liability and Indemnification
To the fullest extent allowed by applicable law, you agree and understand that Daba and its affiliates and the officers, directors, employees, representatives, successors, assigns, and authorized agents of Daba and/or its affiliates (collectively, the “Indemnified Persons”) will not be liable for (i) any loss arising from any action taken or omitted in good faith by Daba with the degree of care, skill, prudence and diligence that a person acting in a fiduciary capacity would use under the circumstances; (ii) any loss arising from adhering to your written or oral instructions; (iii) any act or failure to act by the Custodian of any assets in the Daba Account or any third party, including the ACH Operator, the Broker, and other vendors and contractors; (iv) any loss arising from any services provided to Client prior to the execution of this Advisory Agreement by any person or entity who at the time of the provision of such services was not an Indemnified Person; (v) the loss or failure or delay in performance of any obligation under this Advisory Agreement arising out of or resulting from your negligence or caused, directly or indirectly, by circumstances beyond Daba’s reasonable control, including acts of God, earthquakes, fires, floods, wars, terrorism, civil or military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunctions of utility, telecommunications, computer software or hardware, transportation or communication service, accidents, labor disputes, acts of civil or military authority, governmental, regulatory authority or securities exchanges actions, the inability to obtain labor, material, equipment, or transportation and a custodian refusing to act on Daba’s instructions; or (vi) any loss that Client may suffer for any reason whatsoever that is outside the Daba Account(s) or the relationship between the parties.
Without limiting any other indemnity provision of this Advisory Agreement, you shall, to the fullest extent allowed by applicable law, indemnify and hold harmless Daba and its Indemnified
Persons from any and all obligations, claims, judgments, losses, damages, liabilities, costs, fees and expenses, including reasonable attorneys’ fees, arising out of or relating to: (i) any breach of this Advisory Agreement by Client, including your failure to provide true, accurate, complete, and current information (including Client Information) or to update Client Information or any misrepresentation or omission made by Client in this Advisory Agreement; (ii) any use of or access to the Platform and the Advisory Services provided hereunder, (iii) any direction, instruction or communication you provide with respect to this Advisory Agreement, your Daba Account (including deposits, withdrawals, or transfers of assets to or from such account) or the assets in your Daba Account or (iv) any claim brought against any Indemnified Person relating to services provided to Client prior to the execution of this Advisory Agreement by any person who at the time of the provision of such services was not an Indemnified Person. This indemnification shall survive the termination of this Advisory Agreement, the Client’s use of the Platform and the Daba Account(s).
Without limiting the generality of the foregoing, except where prohibited by applicable law, Daba and its Indemnified Persons will not be liable for any indirect, special, incidental, non-compensatory, punitive or consequential damages or other losses (regardless of whether such damages or other losses were reasonably foreseeable) or any losses incurred or damages (including but not limited to lost opportunities and lost profits) relating to differences between projected or potential performance and actual results. Further, to the extent permitted by applicable law, Daba’s aggregate liability hereunder shall not exceed the amounts actually paid by you to Daba within 12 months of the incident giving rise to the liability.
If the assets with respect to which Daba is providing advice under this Advisory Agreement are only a portion of Client’s total assets, Daba shall not be responsible for (a) any of Client’s assets that Daba is not managing under this Advisory Agreement; or (b) diversifying all of Client’s assets. Inaddition,Dabashallhavenoliabilityforclaimsorlossesrelatingto,resultingfromor otherwise arising from Client’s failure to promptly inform Daba of changes in Client’s financial and/or economic situation, Client’s investment objectives, or any restrictions Client wishes to impose that may affect the management of the assets in the Daba Account(s).
You acknowledge that it is your responsibility to provide correct payment instructions for your Funding Account to Daba, the Custodian and the ACH Operator when requested in connection with setting up your Daba Account(s). You agree to be bound by the National Automated Clearing House Association (“NACHA “) operating rules and any applicable local ACH operating rules. You acknowledge that mismatched, incorrect, or incomplete identifying information regarding your Funding Account or in payment instructions to make a deposit may result in an ACH transfer being rejected, lost, posted to an incorrect account, or returned to the originating bank without notice to you. You agree that Daba may request and the ACH Operator or Custodian may make ACH transfers for withdrawals from your Daba Account(s) solely by reference to the account number of the recipient. None of Daba, its affiliates, the Custodian, or the ACH Operator shall be obligated by any provision of this Advisory Agreement or any other agreements governing your participation in the Program to determine whether there is a discrepancy relating to names or account numbers in transfers between your Daba Account and your Funding Account. You agree to indemnify and hold Daba, the Broker, the Custodian, and the other Indemnified Persons harmless from any and all damages resulting from or relating to any mismatched, incorrect, or incomplete identifying information regarding your Funding
Account or in payment instructions for an ACH transfer to make deposits or withdrawals with respect to your Daba Account or Funding Account. You agree that processing of ACH transfers for deposits or withdrawals may be delayed for five Business Days or longer. If you believe a transfer has not been properly credited to you, you agree to notify Daba promptly. You agree that money transferred via an ACH transfer may not be reflected in a deposit credited to your Daba Account during periods of ACH processing delays. You agree that, notwithstanding anything to the contrary in this Agreement or the Customer Agreement, neither Daba nor any of its Indemnified Persons, nor the Custodian, nor the Broker, shall be liable for ACH transfer processing delays, any act or omission of, including without limitation any overdraft or other fee charged by any financial institution, or for any act or omission of any service provider or vendor of any such financial institution. Any credit resulting from an ACH transfer associated with a deposit is provisional until the Custodian receives payment. Without limiting any other rights of Daba or the Custodian to delay a withdrawal or deny a request for a withdrawal, Daba and the Custodian reserve the right to delay or prevent a withdrawal of the proceeds of any deposit pending verification of final payment. If the Custodian does not receive final payment, or if your Daba Account has been credited by mistake, you authorize Daba to instruct the Custodian to reverse the credit to your Daba Account or will otherwise reimburse the Custodian and/or Daba, as applicable, if assets in your Daba Account are not sufficient, for such final payment or the amount of such erroneous credit, as applicable. If a payment funding a deposit to your Daba Account does not become final, the originator (which is you in the case of a deposit originating in your Funding Account and the holder of money) will not be deemed to have paid you in your Daba Account.
The federal and state securities laws impose liability under certain circumstances on persons who act in good faith. Consequently, nothing in this Advisory Agreement shall waive or limit any rights that you may have under federal or state securities laws.
If Daba or any of its affiliates is served with levies, attachments, garnishments, summons, subpoenas, court orders, or other legal process which name you as debtor or otherwise, Daba or such affiliate shall be entitled to rely upon the representations, warranties, and statements made insuchlegalprocess. YouherebyagreethatDabaoranyaffiliatemayrespondtoanysuchlegal process in its own discretion without regard to jurisdiction or forward such legal process to the Custodian or such other party as may be appropriate. You hereby agree to hold harmless and indemnify Daba and its affiliates for any losses, expenses, and costs, including attorneys’ fees, incurred as a result of responding to such legal process or forwarding such legal process to the appropriate entity.
If Daba or any affiliate receives written notice from a personal representative, executor or administrator purporting to represent your estate, Daba or such affiliate shall be entitled to rely on all figures supplied and representations made in such written notice if Daba or such affiliate is provided with letters of appointment bearing a duly recognized court seal without regard to jurisdiction.
16. Entire Agreement, Amendments, and Notice
You acknowledge and agree that this Advisory Agreement, as it may be amended from time to time in accordance with its terms, constitutes the entire and final understanding with respect to
the subject matter of the Advisory Agreement. You acknowledge and agree that this Advisory Agreement, and the terms and conditions contained herein, supersedes any prior Advisory Agreement or similar contracts you entered into with Daba.
You agree to check the Website for new versions of this Advisory Agreement. You agree that, by keeping your Daba Account or using the services provided in the Program without objecting after Daba posts a new version of the Advisory Agreement, you will agree to and accept all terms and conditions of this Advisory Agreement as so amended.
Any amendment or modification to this Advisory Agreement will be effective on the date determined in accordance with the terms and conditions discussed herein.
17. Governing Law
Except to the extent that it is preempted by federal law, the law of the State of Delaware (without regard for conflicts of law principles) will govern the construction, validity, and administration of this Advisory Agreement. However, nothing in this Advisory Agreement will be construed contrary to the Investment Advisers Act of 1940, as amended (the “Advisers Act”).
18. Assignment of Agreement
You may not assign your rights or obligations under this Advisory Agreement without the prior express written consent of Daba. Daba shall not assign (within the meaning of the Advisers Act) its rights or obligations under this Advisory Agreement without your consent, provided however that you will be deemed to have consented to an assignment if you do not object to such assignment within 30 calendar days of being notified through the Platform or by e-mail of any intent of Daba to assign such rights or obligations. You further agree that any reorganization, restructuring, or other transaction affecting the ownership of Daba will not be deemed to be an assignment (within the meaning of the Advisers Act) of this Advisory Agreement, so long as such reorganization, restructuring, or transaction does not result in a change of actual control or management.
19. Arbitration Agreement
ALL PARTIES TO THIS ADVISORY AGREEMENT AGREE THAT UPON THE ELECTION OF ANY OF THEM, ANY DISPUTE RELATING IN ANY WAY TO THIS AGREEMENT, YOUR ACCOUNT(S), OR TRANSACTIONS WILL BE RESOLVED BY BINDING ARBITRATION AS DISCUSSED BELOW, AND NOT THROUGH LITIGATION IN ANY COURT. THIS ARBITRATION AGREEMENT IS ENTERED INTO PURSUANT TO THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16:
- ALL PARTIES TO THIS ADVISORY AGREEMENT ARE GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY EXCEPT AS PROVIDED BY THE RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED;
- ALL PARTIES TO THIS ADVISORY AGREEMENT WAIVE ANY ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE BASIS IN COURT OR IN ARBITRATION. ALL DISPUTES MUST BE RESOLVED BY BINDING ARBITRATION, ON AN INDIVIDUAL BASIS, WHEN EITHER YOU OR WE REQUEST IT.
- ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY’S ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED;
- THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT PROCEEDINGS;
- THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD EXCEPT IN VERY LIMITED CIRCUMSTANCES;
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY;
- THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS FOR BRINGING A CLAIM IN ARBITRATION; AND
- THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS ADVISORY AGREEMENT.
THIS ARBITRATION PROVISION SHOULD BE READ IN CONJUNCTION WITH THE DISCLOSURES IN THIS ADVISORY AGREEMENT. ANY AND ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN DABA AND THE CLIENT OR THEIR REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS, OR CONTROL PERSONS, ARISING OUT OF, IN CONNECTION WITH, FROM, OR WITH RESPECT TO (a) ANY PROVISIONS OF OR THE VALIDITY OF THIS ADVISORY AGREEMENT OR OTHER AGREEMENTS RELATING TO YOUR PARTICIPATION IN THE PROGRAM, (b) THE RELATIONSHIP OF THE PARTIES HERETO, (c) ANY CONTROVERSY ARISING OUT OF DABA’S BUSINESS OR THE CLIENT’S INDIVIDUAL ACCOUNT OR DABA ACCOUNT (COLLECTIVELY, “CLAIMS”), OR (d) ANY TRANSACTIONS IN YOUR DABA ACCOUNT SHALL BE CONDUCTED SOLELY BY ARBITRATION PURSUANT TO THE RULES THEN IN EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION.
ARBITRATION MUST BE COMMENCED BY SERVICE OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE UPON THE OTHER PARTY. THE DECISION AND AWARD OF THE ARBITRATOR(S) SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES. EACH SIDE IS RESPONSIBLE FOR ITS OWN SHARE OF ARBITRATOR FEES ASSESSED BY THE ARBITRATOR UNDER THE ARBITRATION ADMINISTRATOR’S RULES OF PROCEDURE. IF YOU BELIEVE THAT YOU ARE UNABLE TO AFFORD ANY FEES THAT WOULD BE YOURS TO PAY, YOU MAY REQUEST THAT WE PAY OR REIMBURSE THEM, AND WE WILL CONSIDER YOUR REQUEST IN GOOD FAITH.
THE PARTIES AGREE THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION BASIS, AND THE CLIENT EXPRESSLY WAIVES ANY RIGHT TO BRING A CLASS ACTION LAWSUIT OR ARBITRATION AGAINST DABA OR ITS REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS, OR CONTROL PERSONS WITH RESPECT TO ANY CLAIMS.
Notwithstanding the foregoing or anything to the contrary in this Advisory Agreement, in no way shall this Advisory Agreement constitute a waiver or limitation of rights that the Client may have under federal or state securities laws to pursue a remedy by other means if and to the extent such laws guaranty such right to the Client and do not permit the waiver thereof.
20. Delivery of Brochure
You acknowledge receipt of the Daba Wrap Fee Program Brochure (the “Brochure”), delivered electronically and available on the Website, which contains certain disclosures concerning brokerage practices, risk factors and potential conflicts of interest, all of which may be amended from time to time subject to law. The Brochure is also available on the Website and the Securities and Exchange Commission’s Investment Adviser Public Disclosure page on www.adviserinfo.sec.gov.
21. Confidentiality, Privacy, and Trusted Contact
Except as required by law or requested by regulatory authorities, Daba agrees to maintain in strict confidence all of your nonpublic personal and financial information that you furnish to Daba, except for information that you explicitly agree to share publicly. You agree that you shall not use investment advice, investment recommendations, or other confidential information you receive from Daba for developing a service that competes with the Platform or the services of Daba or any of its affiliates.
You consent to Daba recording and/or monitoring your telephone calls and electronic communications with representatives and associated persons of Daba without further notice.
You expressly authorize Daba representatives or associated persons to contact you for purposes of evaluating the offering of the Advisory Services, the Program, and other products and services by calling, writing, or e-mailing at the telephone number(s), mailing address, and/or e-mail address(es) you provide in connection with your Daba Account, including any additional or updated telephone numbers, mailing addresses, or e-mail addresses. The authorization in the preceding sentence will remain in effect unless and until you specifically revoke it by notifying Daba or associated persons with whom you are in contact.
Furthermore, you may appoint an adult at least 18 years of age as a Trusted Contact Person whom we may contact about your Daba Account. We may disclose information about your Daba Account to your Trusted Contact Person, or enable such person to view your Daba Account, in order to address possible wrongful or unauthorized use of your assets or to confirm the specifics of your contact information, health status, or the identity of any legal guardian, executor, trustee, or holder of a power of attorney.
The Trusted Contact has view-only rights to a Custodial Account, as assigned by the Custodial Account owner.
22. Client Information
For purposes of this agreement, “Client Information” means all information about you, which may include, among other things, information about your identity, liquidity needs, age, e-mail address, physical address, location, nationality, citizenship, tax residency, financial situation, or other information which you supply through the Platform.
You acknowledge and agree that Daba relies on the Client Information you provide through the Platform to provide the Advisory Services under the Program, including the Platform’s recommendation of any Suggested Investment. You further acknowledge and agree that Daba shares some or all of the Client Information with the Custodian and/or Broker and that, subject to the terms and conditions of the Customer Agreement, the Custodian and/or Broker relies on such Client Information to perform certain compliance functions including verifying your identity for customer identification purposes and anti-money laundering purposes and confirming that United States firms like Daba, Broker, and Custodian are permitted to provide you with services under applicable United States economic sanctions against various countries, individuals, and organizations.
You represent and warrant to Daba that all Client Information you supply is true, accurate, complete, and current. Without limiting the generality of the preceding sentence, you represent and warrant that you are neither insolvent nor have you been found by a court or regulatory body to be bankrupt or insolvent through a judicial or regulatory proceeding. You agree to update any Client Information you provided Daba that is no longer accurate promptly using the Platform.
Headings in this Advisory Agreement are descriptive and for convenience only and shall not be construed as altering the scope of the rights and obligations created by this Advisory Agreement. Defined terms shall have their assigned meanings wherever used in this Advisory Agreement or any of the agreements governing your participation in the Program, regardless of whether defined in this Advisory Agreement or used in the singular or the plural. Unless expressly provided otherwise, the word “including” shall be construed as introducing examples of a category without limiting such category and shall therefore be construed as if the word “including” were replaced with the phrase “including but not limited to” or “including without limitation.”
No course of dealing between you and Daba, nor any delay by Daba in exercising any rights or remedies hereunder, shall be deemed to be a waiver of any such rights or remedies. Any waiver of such rights or remedies shall not be construed as a waiver of any other right or remedy. Any right or remedy may be exercised as often as Daba may determine in its sole discretion, and a waiver granted on one occasion shall not be construed as applying to any other occasion.
You acknowledge that the Program is intended for natural persons who are citizens or other lawful residents of the United States and who are located in the United States, and that neither Daba nor its affiliates intend to offer the Program, any securities, or any other products or services outside of the United States. You acknowledge that Daba and its affiliates do not offer the Program to non-resident aliens subject to tax withholding. Neither Daba nor its affiliates represent or warrant that any aspect of the Program, including information available from the Website and information provided through the Platform, complies with any law or regulation of any jurisdiction outside of the United States. You represent and warrant that you are a lawful resident of and located in the United States and that you have been lawfully issued by the government of the United States the social security number or tax identification number you provided to Daba when applying for your Daba Account using the account opening functionality through the Platform.
You represent and warrant that no term of this Advisory Agreement conflicts with or violates any duty you have under any law, regulation, or agreement.
If any provision of any of this Advisory Agreement or other agreement related to the Program and your Daba Account is held unenforceable or invalid under any law, rule, or administrative or judicial order or decision, that holding shall not alter the enforceability or validity of this Advisory Agreement’s remaining provisions. Without limiting the foregoing, if any portion of the Arbitration Agreement set forth below is invalidated, such invalidation shall not invalidate the remaining portions of the Arbitration provision.
If you want to participate in the Program and have carefully reviewed this Advisory Agreement, including the PRE-DISPUTE ARBITRATION CLAUSE ABOVE, then please click or tap “Accept and continue.”
BY CLICKING OR TAPPING “ACCEPT AND CONTINUE” I AGREE TO ENTER INTO THIS ADVISORY AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Attachment A: Potential Expenses Not Covered By the Daba Fee
Below is a list of ancillary fees Clients may incur that are not included in the Daba Fee. These fees would be incurred based on a Client’s request, beyond our control and accordingly excluded from the fees and services covered by the Daba Fee. Should a Client incur any of these fees, such Client will be responsible for their payment in accordance with the terms and conditions of this Advisory Agreement and such Client’s other account opening agreements. This list of fees is the current list of ancillary fees, but we reserve the right to change these fees in the future.
Bank Transfer (ACH) Incoming – $0
Bank Transfer (ACH) Outgoing- $0
Returned ACH (insufficient funds) – $0.50 each
ACH Notice of Correction (NOC) Fee – $5 per notice
Paper Checks – $4 per check
Daba Account Funding via Third-Party Debit Card – $1 per transaction
Non-ACH Withdrawal – $2 per withdrawal for withdrawals of aggregate proceeds of $200 and below; 1% of withdrawal for aggregate proceeds exceeding $200
Electronic Statement & Electronic Trade Confirms – $0 Paper Confirms – $2 per confirm
Paper Account and Tax Statements – $5 per statement Paper Prospectuses – $3 per prospectus
Escheatment Processing – $10 per account
ACAT (Automated Customer Account Transfer): ACAT Outgoing – $75 per account
ACAT Incoming – $0
Attachment B: Certain Feature Terms and Conditions
Recurring Contributions is a feature that may be activated by you that can initiate contributions from your Funding Account to your Daba Account automatically and have those contributions repeat in the amount and according to the schedule you prescribe. You may choose to set up recurring transfers to automatically purchase investments that have been pre-selected by you.
Terms & Conditions Applicable to Recurring Contributions
By activating the Recurring Contributions feature electronically, you are accepting and agreeing to these terms and conditions. By enabling this feature, you are initiating, authorizing, and directing the recurring electronic transfer of funds from your Funding Account via the Automated Clearing House (“ACH”) payment network in accordance with this Advisory Agreement. We may, in our discretion, not initiate a transfer of funds from your Funding Account for any reason, including if your Funding Account balance is below a minimum threshold.
You acknowledge that enabling the Recurring Contributions feature suffices as your written authorization for ACH transactions as provided herein and will remain in full force and effect until you pause or otherwise disable the applicable feature and thereby revoke your authorization. You may pause such feature in-app at any time. You must disable the feature at least three Business Days before the scheduled debit date of any ACH transaction from your Funding Account in order to cancel this authorization. If you do not, we may attempt, in our sole discretion, to cancel the debit transaction. However, we assume no responsibility for our failure to do so.