Last Updated: October 1, 2019
By creating an account, submitting a registration form and/or by accessing and/or using the Advisory Services, Client acknowledges and agrees that Client has read, understands and agrees to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies, terms and conditions or agreements that are or may be established by Fisecal from time to time and the foregoing shall be incorporated herein by reference. The terms and conditions of this Agreement will exclusively govern Client’s access to and use of the Advisory Services. This Agreement is entered into as of Client’s initial access to and/or use of the Advisory Services (“Effective Date”).
Section I. Investment Management Services.
a. Services. Fisecal shall provide Client with advisory services include co-browsing and/or access to Fisecal’s online financial organizational tool through the Site, development of a Financial Plan, if applicable, phone consultations with an advisor, and email support (“Advisory Services”) to Client. Generally, such Advisory Services will involve preparing and/or rendering a financial consultation for Client based on the client’s financial goals and objectives. Fisecal’s Advisory Services may include general recommendations for a course of activity or specific actions to be taken by Client. Upon mutual agreement of the parties, Fisecal may, in addition to the Advisory Services provide a written financial plan (“Financial Plan”).
b. Services to Other Clients. Client understands that Fisecal provides Advisory Services for other clients. Fisecal may provide advice with respect to any of its clients that may differ from advice provided with respect to Client’s Account. Client further understands that Fisecal is not obligated to recommend a particular plan for the Client which Fisecal may recommend for other accounts if, in Fisecal’s sole and absolute discretion, such recommendation does not appear as suitable, practical and/or desirable for Client.
c. Advice. Any recommendations made by Fisecal are based on the information Fisecal obtains from Client. Client must provide true, accurate, current and complete information in response to the Financial Questionnaire (as defined below) and as it pertains to Client’s resources, objectives, needs and goals. Fisecal shall not be required to verify any information obtained from Client. Fisecal does not guarantee or ensure the success of any Advisory Services and/or Financial Plan.
d. No Legal and Accounting Services. It is expressly understood and agreed between the parties of this Agreement that Fisecal will not provide accounting or legal advice nor prepare any accounting or legal documents for the implementation of the Client’s financial planning objectives. The Client is urged to work closely with Client’s attorney and/or accountant in implementing recommendations provided through the Advisory Services and/or Financial Plan.
Section II. Client Responsibilities.
a. Client Information. The Client recognizes that the value and usefulness of Fisecal’s Advisory Services will be dependent upon the information that the Client provides and the Client’s active participation in the formulation and implementation of financial planning objectives. The Client shall be required to provide to Fisecal or otherwise upload data and/or various information concerning Client’s financial information into the Account and complete a financial questionnaire (“Financial Questionnaire”). Client may be required to complete an additional Financial Questionnaire periodically if financial information becomes outdated in order for Fisecal to continue to provide Advisory Services.
b. Third Party Accounts. Client may direct Fisecal to retrieve Client’s information (“Account Information”) maintained online by third-party financial institutions with which Client has a relationship, maintain accounts, and/or engage in financial transactions. Fisecal facilitates access of the Account Information by entering into agreements with third parties or through Client’s input of information through Client’s Account on the Site. Fisecal does not review the Account Information for any purpose, including but not limited to accuracy, legality and/or noninfringement.
c. Authorization. Client hereby expressly authorizes Fisecal to access Client’s Account Information maintained by identified third-parties, on Client’s behalf. Without limiting the foregoing, if the Account Information relates to an account held with any entity governed by the Telecommunications Act of 1996 and/or any rules or regulations of the Federal Communications Commission, Client hereby consents to the transmission of the Account Information to Fisecal. Client authorizes and/or permits Fisecal to use and/or store information submitted (such as account passwords and/or user names) to perform the Advisory Services and/or provide an Account through the Site. Client acknowledges and agrees that when Fisecal is accessing and retrieving Account Information, Fisecal is acting on Client’s behalf and not as an agent of any third party accessible through the Site and/or Advisory Services.
Section III. Service Options.
a. Financial Plan. Fisecal shall provide personalized financial advice including but not limited to budgeting, investment guidance and goal planning. Fisecal shall provide a Financial Plan to Client for an additional fee as further set forth herein. The Financial Plan may include an assessment of current spending patterns, current financial health and recommendations to address financial concerns. The depth of the Financial Plan is up to the discretion of the advisor and is evaluated based on the level of financial health achieved by the Client prior to signing up for the Advisory Services and/or Account.
b. Ongoing Support Subscription. Fisecal’s Advisory Services and/or ongoing support subscription (“Support Subscription”) provides both email support and phone support with the Client depending on the level of support Client chooses through the Site. Client will set up a phone call with Client’s designated advisor based on the chosen level of support, as the case may be, as mutually determined by the parties.
Section IV. Advisor View.
Fisecal and/or the advisor shall have access to and/or be able to view Client’s Account (“Advisor View”) in order to obtain current account information or otherwise review Client accounts concurrently with Clients using the tool on the Site (known as “co-browsing”). Co-browsing may occur during calls between the advisor and the Client for purposes of discussing and/or clarifying financial records or other Client information. The tool displays detailed transaction and balance data from financial accounts that the Client has elected to link to the tool. The advisor will work with the Client to confirm the accuracy of any data and/or financial information that is displayed through the co-browsing tool. The Client may opt-out of this feature in the settings of Client’s Account.
Section V. Fees.
a. General. In consideration for the provision of the Advisory Services described herein, Client agrees to pay Fisecal the Fees in advance (including without limitation applicable subscription fees) for the service option selected by Client during Client’s sign up process in accordance with the terms and conditions contained herein. Notwithstanding anything herein to the contrary, Fees and charges are subject to change by Fisecal at any time upon thirty (30) days prior notice to Client. All Fees, expenses and taxes due hereunder will be paid in U.S. dollars. All Fees due and payable by Client to Fisecal under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.
b. Subscription Fees. In consideration for the provision of the Advisory Services and/or Support Subscription, Client agrees to pay Fisecal as follows
i. Monthly Subscription. In the event Client chooses a monthly subscription (“Monthly Subscription”), Client shall be required to pay a non-refundable fixed fee as indicated on the Site, which shall be due and payable prior to receiving the Financial Plan and shall continue paying a monthly subscription fee thereafter on a month-to-month basis thereafter unless Client cancels or in the event Fisecal terminates such subscription. Any cancellations will take effect on the first day of the subsequent month following written termination. Client must cancel the monthly subscription before it renews each month in order to avoid billing of the next month’s subscription fees. Monthly renewals occur on the anniversary of Client’s initial purchase date. Client will be billed the Monthly Subscription fee to the payment method Client provided to Fisecal during registration (or a different payment method if Client changed Client’s account information).
ii. Annual Subscription. In the event Client chooses an annual subscription (“Annual Subscription”), Client’s subscription will continue for a period of twelve (12) months (“Annual Term”) and shall automatically renew on a month to month basis following the Annual Term. For avoidance of doubt, the Annual Subscription may not be terminated early. In order to avoid automatic renewal, Client may provide thirty (30) day’s notice prior to the end of the Annual Term in order to avoid automatic renewal on a month-to-month basis. The Annual Subscription shall be billed on a monthly basis and shall occur on the anniversary of Client’s initial purchase date. Fisecal will bill the Annual Subscription fees to the payment method Client provides to Fisecal during registration (or to a different payment method if Client changes account information).
The Monthly Subscription fees and the Annual Subscription fees shall collectively be referred to herein as “Fees.” The Fees are charged in advance and are non-refundable, including if Client only uses part of a month’s subscription. Client’s subscription will automatically renew at the end of each billing cycle unless otherwise terminated in accordance with the terms set forth in this Agreement. By way of example, if Client subscribed to a Monthly Subscription on the 2nd of the month, Client will always be billed on the corresponding day each month thereafter. Subscription fees are fully earned upon payment.
c. Credit Card Payments; ACH. Unless otherwise set forth herein, all Fees shall be deducted from a payment account designed by Client. In addition, if Client authorizes Fisecal to do so, Fisecal will retain Client’s credit card or other payment information, as applicable, in Fisecal and/or our third party service provider’s database to facilitate Client’s payments for future transactions. Client hereby authorize Fisecal to place a pending charge to Client’s credit card or other payment information when Client enters into this Agreement, and prior to each subsequent periodic charge. Pending charges are used to verify the validity of Client’s payment information, and is temporary, and will not be converted into an actual charge. While pending, however, such charges reduce the available amount of credit in Client’s account in the amount of $1.00 per pending charge. Client acknowledges and agrees that if Client fraudulently reports its payment card as stolen, or fraudulently reports that an authorized charge by Fisecal and/or its authorized agent is unauthorized, Fisecal may, in its sole discretion, pursue any available rights or remedies at law or in equity, including, without limitation, the right to terminate this Agreement and Client’s ability to use the Advisory Services and/or Support Subscription. Client authorizes Fisecal to automatically charge the payment account for the Fees in advance or as otherwise agreed to by the parties in writing. If Client’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected by Client’s payment account, Client shall immediately update Client’s payment account or supply a new payment account, as appropriate. If Client is unable to update its payment account with appropriate information, then Fisecal will send an invoice to Client detailing the amount due. Client must pay the amount due in full within seven (7) days after the date of the invoice. Client is solely responsible for any and all fees charged to Client’s payment card by the issuer, bank, or financial institution including, but not limited to, overdraft, insufficient funds and over the credit limit fees.
d. Taxes. Fees are exclusive of applicable taxes. Client is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all Fees under this Agreement (collectively, “Taxes”) except for taxes based on Fisecal’s net income and/or payroll taxes. Client will indemnify, defend and hold harmless Fisecal for all taxes imposed which may be attributable to the Advisory Services.
e. Out of Scope Services. In the event Client requests additional services outside of the scope of Advisory Services described herein, then Client shall submit such request in writing to Fisecal. Thereafter, the parties shall memorialize any agreed upon changes in writing.
f. Late Payment. In the event that Fees are not paid on a timely basis, including without limitation due to an invalid or expired credit card number, Fisecal may, in addition to other available remedies, disable the password, account and access to all or part of the Advisory Services if any Fees are not paid on the date such Fees are due and payable hereunder. In the event of the foregoing, Fisecal shall not be obligated to provide any or all of the Advisory Services until such Fees are paid in full. Client acknowledges and agrees that Fisecal shall not be in breach of this Agreement or liable for failure to perform in the event Client fails to make payments when due hereunder.
Section VI. Term.
This Agreement shall commence on the Effective Date and shall continue for a period of one (1) month thereafter, unless otherwise terminated earlier in accordance with the terms and conditions of this Agreement (“Initial Term”). This Agreement will automatically renew for additional one (1) month periods (“Renewal Term”) unless either party provides written notice to the other party of its intent to terminate this Agreement pursuant to the terms and conditions contained herein. The Initial Term together with any and all Renewal Term(s), shall collectively be referred to herein as the “Term.”
Section VII. Termination.
a. Termination for Breach. If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, at law and/or in equity.
b. Termination for Convenience. Fisecal may terminate this Agreement at any time upon notice to Client. Client may terminate this Agreement in accordance with the subscription plan chosen by Client in accordance with the terms set forth in Section V.
c. Ongoing Support. Upon termination, Client will have continued access and support from an advisor through the remainder of the billing cycle.
d. Effect of Termination. Fisecal may, in its sole discretion, terminate the management of the Account immediately and without liability after review of the Financial Questionnaire and determining in its sole and absolute discretion that the Advisory Services are not suitable for Client and shall no longer be responsible for providing a Financial Plan. Termination of this Agreement will not affect (1) the validity of any action previously taken by Fisecal under this Agreement, or (2) Client’s obligation to pay the Fees, except as Fees or a portion thereof may be refunded as solely determined by Fisecal hereunder.
Section IX. Standard of Care and Indemnification.
a. Third Party. Client acknowledges and agrees that Fisecal is not responsible for acts, omissions and/or errors caused by third parties.
b. Force Majeure. Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform its obligations for thirty (30) days due to such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.
c. Indemnification. Client agrees to indemnify, defend and hold Fisecal and its affiliates, their respective officers, directors and employees (“Indemnified Parties”) harmless against any and all claims, costs, damages, liabilities, judgments and expenses, including but not limited to direct, incidental, consequential, exemplary and indirect damages and the fees, costs and expenses of counsel, experts or other consultants retained by the Indemnified Parties (“Losses”) which directly relate to or arise out of Client’s acts and/or omissions.
Section X. Limitation of Liability.
FISECAL’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CLIENT TO FISECAL FOR THE ADVISORY SERVICES PROVIDED HEREUNDER THAT GAVE RISE TO THE LIABILITY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL FISECAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section XI. Warranties.
a. Fisecal Warranty. Fisecal represents and warrants that (i) the Advisory Services will perform substantially in accordance with the terms set forth herein, and (ii) it will, at all times, comply with all applicable local, state, federal and foreign laws in providing the Advisory Service. The warranty set forth in this Section XI.a. shall not apply to the extent of any non-conformance which is caused by use of the Advisory Services contrary to Fisecal’s instructions.
b. Client Warranty. Client represents and warrants that (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Advisory Services and (ii) it has the requisite legal and corporate power, right, and authority to enter into this Agreement.
c. Remedy. Client’s sole and exclusive remedy and Fisecal’s sole and exclusive liability for any breach of Fisecal’s warranties set forth herein is for Fisecal to use commercially reasonable efforts to correct any non-conformance within a reasonable period of time or provide Client with an alternative means of accomplishing the desired performance; provided that Client notifies Fisecal of such breach in writing within fifteen (15) days after the date of Fisecal’s alleged breach.
d. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION XI OF THIS AGREEMENT, FISECAL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ADVISORY SERVICES AND FINANCIAL PLAN ARE PROVIDED BY FISECAL ON AN “AS-IS” BASIS. FISECAL DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE ADVISORY SERVICES AND FINANCIAL PLAN (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY FISECAL IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. FISECAL DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE ADVISORY SERVICE AND FINANCIAL PLAN WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE. FISECAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE ADVISORY SERVICES ARE DEPENDENT ON.
Section XII. Communication. All written communication to Client shall be to the email address provided by the Client upon Account creation unless Client designates otherwise. All electronic written communication should be sent to Client’s assigned advisor or to Info@Fisecal.com. All non-electronic written communication to Fisecal shall be to:
311 W 50th St
NYC, NY 10019
Section XIII. Confidentiality.
Section XIV. Governing Law. This Agreement is made and shall be governed and construed under the laws of the State of New York without giving effect to any conflict or choice of law provisions of that State, provided that nothing in this Agreement will be construed in any manner inconsistent with the Advisers Act, any rule or order of the SEC under the Advisers Act.
Section XV. General.
a. Severability. If any provision of this Agreement is or becomes inconsistent with any applicable law or rule, the provision will be deemed rescinded or modified to comply with such law or rule. In all other respects this Agreement will continue in full force and effect. No term of this Agreement may be waived or changed except in writing signed by both parties. Failure to insist on strict compliance with this Agreement or with any of its terms or any continued conduct will not be considered a waiver by either party of such party’s respective rights under this Agreement.
b. Waiver. Nothing in this Agreement shall be construed as a waiver of any rights Client may have under federal or state securities laws. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
c. No Assignment. This Agreement may not be assigned by any party without the consent of the other party hereto, in accordance with the provisions of the Investment Advisers Act of 1940 (the “Advisers Act”). Any other transfer or activity that is not deemed an assignment under the Advisers Act may occur without Client consent.
e. Recitals. The recitals are hereby incorporated into and made a part of this Agreement.
f. Severability. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.
g. Survival. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.
h. Headings. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
i. Attorneys Fees. If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action.
Section XVI. Authority.
Each party agrees that: (i) a signature, contract, or other record in electronic form will have the same legal effect, validity and enforceability as a signature, contract, or other record in written or non-electronic form; and (ii) a contract formed by an electronic signature will have the same legal effect, validity and enforceability as a contract formed by means of a written signature. For example, when an individual clicks on “I agree”, “I consent” or other similarly worded “button” or entry field with a mouse, keystroke or another computer device and causes evidence of such agreement or consent to be transmitted electronically to another party, such party will be deemed to have executed and delivered that agreement or consent.
Section XVII. Acknowledgments, Representations, and Warranties. By entering into this Agreement, Client agrees to and confirms the following acknowledgments, representations and warranties:
- Client acknowledges having thoroughly reviewed the information provided in this Agreement, and represents and warrants that the information provided by Client in the Financial Questionnaire will be true and correct in all material respects
- Client acknowledges having thoroughly reviewed the service descriptions and the fee schedule and accepts the terms of this Agreement in its entirety
- Client consents to electronic delivery of information related to Account. Client consents to receive communications from Fisecal about the Advisory Services provided and Client’s Account, either by e-mail or by notices posted on Fisecal’s Site, as determined by Fisecal in its sole and absolute discretion. Client agrees that any requirement that a notice, disclosure, agreement, or other communication be sent to Client by Fisecal in writing is satisfied by such electronic communication. Client agrees that Fisecal may send Client e-mails which include notices about Client’s Account as well as information pertaining to the Advisory Services, such as featured services or new offerings.
Section XVIII. Solicitors’ Disclosure Statement. If Client was solicited to subscribe to Fisecal’s Advisory Services by a solicitor (“Solicitor”), rules under the Advisers Act require that the Client be provided with certain information concerning the solicitation arrangement with Fisecal. There is no affiliation between Fisecal and any Solicitor. Clients will not be charged any fee for the cost of Fisecal obtaining their Client account through a Solicitor in addition to the Advisory Fee paid to Fisecal by the Client