Terms and Conditions - RIA Agreement - Everest Funeral Concierge

PILOT AGREEMENT

Terms and Conditions

RECITALS

Everest provides a full range of funeral planning and concierge services to individuals through a broad spectrum of distribution channels. The RIA is a registered investment advisory firm which, through its Advisors, advises Clients (both as defined below) on various investment and related matters. The RIA believes Clients may benefit, as part of their financial and estate planning process, from the Everest Services (also defined below). Everest and the RIA therefore mutually desire to make the Everest Services available to Clients, in accordance with the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the covenants and agreements of the Parties set forth herein, the Parties’ premises and the mutual conditions hereinafter set forth, the Parties agree as follows:

Definitions
1. “Advisor” means the individual investment advisor representative employed or engaged by the RIA to provide investment and related advice to Clients. An individual shall be counted as an Advisor if that individual directly interacts with any Client or has responsibility for carrying out any of the RIA’s investment advisory responsibilities with respect to any Client.
2. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with, the specified Party.
3. “Agreement” has the meaning set forth in the preamble to this Agreement.
4. “Client” means, whether one or more, the individuals who are financial and/or estate planning clients of the RIA, together with members of the Client’s immediate family living with the Client.
5. “Communication Packet” means a package of materials, if any, that the RIA may provide to its Clients explaining the financial and/or estate planning services which the RIA provides to its Clients.
6. “Confidential Information” shall mean any and all technical and non‑technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know‑how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of the disclosing Party including, without limitation, information concerning product development, affinity relationships, financial information, procurement requirements, customer lists, business forecasts, sales and merchandising and marketing plans and information. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to the disclosing Party or the recipient. Confidential Information does not include information that: (a) is or becomes generally available to the public other than (i) as a result of a disclosure by the recipient or any other person who directly or indirectly receives such information from the recipient or (ii) in violation of a confidentiality obligation to the disclosing Party known to the recipient; (b) is or becomes available to the recipient on a non-confidential basis from a source which is entitled to disclose it to the recipient; or (c) was developed by the recipient independently of and without reference to any information communicated to the recipient by the disclosing Party.
7. “Dispute” has the meaning set forth in Section 8.5 hereof.
8. “Effective Date” has the meaning set forth in the preamble to this Agreement.
9. “Everest” has the meaning set forth in the preamble to this Agreement and includes, as the context requires, its Affiliates.
10. “Everest Materials” means the printer-ready versions of introductory materials describing the Everest Services.
11. “Everest Services” means the services of Everest as described on Exhibit A hereto, subject to change as therein stipulated.
12. “Force Majeure” means any event that is beyond the reasonable control of the affected Party such as acts of God, action or failure to act of any government or regulatory authority, or acts of war or sabotage.
13. “Indemnifiable Claim” has the meaning set forth in Section 6.3 hereof.
14. “Indemnified Party” has the meaning set forth in Section 6.3 hereof.
15. “Indemnifying Party” has the meaning set forth in Section 6.3 hereof.
16. “Losses” has the meaning set forth in Section 6.1 hereof.
17. “Parties” has the meaning set forth in the preamble to this Agreement.
18. “Proprietary Intellectual Property” has the meaning set forth in Section 5.1 hereof.
19. “RIA” has the meaning set forth in the preamble to this Agreement and includes, as the context requires, its Affiliates.
Everest Materials and Services
1. Everest Materials. Everest shall (a) provide the Everest Materials to the RIA for printing and distribution to the Clients, whether as a stand-alone package or for inclusion in the RIA’s Communication Packets; (b) make available to the RIA and its designated Advisors an Everest employee who can assist in the customization of the Everest Materials; and (c) be responsible for reviewing and commenting on any materials pertaining to Everest that may be included in the Communication Packets as described below. The RIA shall have a right of reasonable approval over references (if any) in the Everest Materials to the RIA, but Everest shall otherwise retain control over the form and content thereof. From time to time, Everest may propose changes to Everest Materials, in which case it will provide the new or modified versions to the RIA. The Parties shall also coordinate with one another concerning the manner in which the Everest Materials are combined into or used with the Communication Packets, if applicable. The RIA shall assume the cost of printing and distributing Everest Materials (whether alone or in conjunction with Communication Packets) to Clients. All financial, estate planning or other materials intended to be used or distributed by the RIA that include any description or representation of Everest products and/or the Everest Services shall be provided to Everest prior to the RIA’s use or distribution of the same. Everest shall have a reasonable opportunity to review and comment on references to Everest or the Everest Services in any such materials. If Everest, in its sole reasonable judgment and discretion, determines that such materials do not conform to the normal and customary standards of materials regularly used in the industry in which Everest normally operates, or that such materials are potentially misrepresentative, disparaging or damaging to Everest, the RIA shall revise the materials according to written comments provided by Everest.
2. Everest Services. As of the Effective Date, Everest Services shall become available to all Clients, and Everest shall provide the Everest Services to each Client, subject to the terms and conditions of this Agreement. In connection therewith, Everest will assign a code unique to the RIA which will allow Clients to create a profile and access Everest Services on Everest’s website. Everest will communicate this code to the RIA, and the RIA agrees to provide it only to Clients for use by them to access Everest Services. Everest may from time to time update such access code and will provide the same to the RIA. The RIA agrees, upon Everest’s request, to verify the status of a Client when such Client has contacted Everest through one of its call centers and such Client has not yet created a profile. Once Everest has verified that such Client is eligible to receive Everest Services, Everest will continue to provide the Everest Services to such Client. In the event that such Client’s relationship with the RIA terminates, such former Client will no longer be entitled to receive the Everest Services; provided, however, that Everest, in its sole discretion, may elect to provide the Everest Services to such Client, at their individual election, pursuant to a fee-based arrangement.
3. Regulatory Responsibilities. All funeral-related regulatory compliance, filings, and approvals with respect to the Everest Services shall be the responsibility of Everest. All regulatory compliance, filings, and approvals with respect to the relationship of RIAs and its Advisors with their Clients (including compliance with the Investment Advisers Act of 1940 and applicable state law) shall be the responsibility of the RIA.
4. Communications with Clients. Each Party shall keep the other Party reasonably informed as to communications with Clients with respect to Everest Services and the subject matter of this Agreement, including but not limited to any complaints by or on behalf of Clients or their representatives related to Everest Services or otherwise to the subject matter of this Agreement. Each Party may send notices to and otherwise communicate with Clients and their representatives concerning their relationships with them, but both Parties shall refrain from making any disparaging remarks regarding the other in any such communications.
Representations and Warranties
1. By Everest. Everest represents and warrants that (i) it is duly formed, validly existing and in good standing in the province of its formation; (ii) it is qualified to do business in each province in which it is required to be qualified; (iii) it has and will maintain any and all licenses and permits that it is required to hold to provide the Everest Services; and (iv) it will perform its obligations under this Agreement in a legal manner that fully complies with all applicable laws.
2. By the RIA. The RIA represents and warrants that (i) it is duly organized, validly existing and in good standing in the province of its formation; (ii) it is an investment adviser registered as such with the Securities and Exchange Commission under the Investment Advisers Act of 1940 and applicable state law; (iii) its execution and performance of this Agreement will not violate its constituent documents or any law applicable to it; (iv) the RIA carries all necessary licenses and approvals for the conduct of its operations; (v) the RIA’s Advisors are duly licensed under all statutes and regulations which are required to be held and maintained by them for the activities carried out on behalf of Advisor; and (vi) it will perform its obligations under this Agreement in a legal manner that fully complies with all applicable laws.
Intellectual Property Rights; Confidentiality
1. Intellectual Property Rights. The RIA acknowledges and agrees that Everest shall own and retain the copyright and all other intellectual property rights in and to all materials it provides to the RIA (including all intellectual property embodied therein, hereafter referred to as “Proprietary Intellectual Property“). The RIA shall not, by virtue of this Agreement or otherwise, obtain any rights or interests in any of Everest’s Proprietary Intellectual Property, except solely for the purpose of fulfilling its obligations in connection with the distribution of Everest Materials as described in this Agreement.
2. Trademarks, Etc. The RIA hereby grants to Everest a limited license and right to use the RIA’s name, trademarks, service marks, copyrights and logo solely in connection with Everest’s performance of the Everest Services herein. Everest hereby grants to the RIA a limited license and right to use Everest’s name, trademarks, service marks, copyrights and logo solely in connection with the Communication Packets and otherwise in communicating with Clients regarding Everest Services in accordance with this Agreement. Each Party shall remain the owner of all rights in and to its name and logo, as they may exist now or may hereafter be modified, including all rights in and to any copyright, trademark, service mark or other rights pertaining thereto. Any and all rights not specifically granted and licensed to the other Party are reserved by the Party owning such rights. Upon termination of this Agreement, any such license shall similarly terminate.
3. Confidentiality. Each Party agrees: (a) to observe complete confidentiality with respect to the Confidential Information; (b) not to disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of the other Party (except such disclosure or access which is required to perform any obligations under this Agreement); and (c) to insure that any of its employees (including but not limited to the RIA’s Advisors) who receive access to the Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information. Without limiting the foregoing, with regard to the Confidential Information, the Parties agree to employ procedures no less restrictive than the strictest procedures used by it to protect their own confidential and proprietary information. A disclosure of Confidential Information which is (x) in response to a valid order by a court or other governmental body; (y) otherwise required by law; or (z) necessary to establish the rights of either Party under this Agreement, shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided however, that the Party disclosing such information shall provide prompt written notice thereof to the other Party to enable it to seek a protective order or otherwise prevent such disclosure.
4. Client Relationships. The client relationships between the RIA and its Advisors with their Clients, and all related information, belong to the RIA. The customer relationships between Everest and Clients, and all related customer information, will belong to Everest, insofar as the same pertains to Everest Services. Given the nature of this Agreement and the Parties’ relationship to one another, they acknowledge that the foregoing relationships and information may overlap.
Indemnity
1. Indemnification by the RIA. The RIA shall indemnify, defend and hold harmless Everest and its Affiliates and their respective successors and permitted assigns from and against and in respect of any and all claims, costs, damages, losses, costs, expenses, obligations, liabilities, recoveries, suits, causes of action, and deficiencies, including interest, penalties and reasonable attorneys’ fees (collectively, “Losses“) that Everest or any such other Indemnified Party shall incur or suffer, which arise, result from or relate to (i) any breach by the RIA of, or failure by the RIA to perform, any of its obligations under this Agreement, (ii) any liability arising out of the content of any Communication Packet or other materials of the RIA (other than Everest Materials and except to the extent that Communication Packets otherwise include statements or information provided by Everest expressly for use therein), or (iii) the negligence or misconduct by the RIA or its Advisors in relation to its relationships with its Clients and their representatives, except to the extent of any loss caused by the negligence or misconduct of Everest.
2. Indemnification by Everest. Everest shall indemnify, defend and hold harmless the RIA and its Affiliates and their respective successors and permitted assigns from and against and in respect of any and all Losses that the RIA or any such other Indemnified Party shall incur or suffer, which arise, result from or relate to (i) any breach by Everest of, or failure by Everest to perform, any of its obligations under this Agreement, (ii) any liability arising out of the content of any Everest Materials (except to the extent that Everest Materials include statements or information provided by the RIA expressly for use therein), or (iii) Everest’s negligence or misconduct in the performance of Everest Services, except to the extent of any loss caused by the negligence or misconduct of the RIA or its Advisors.
3. Third-Party Claims. A Party who is the recipient of an indemnity pursuant to Section 6.1 or 6.2 above (the “Indemnified Party“) shall give the Party from whom it receives indemnity pursuant to Section 6.1 or 6.2 above (the “Indemnifying Party“) written notice within thirty (30) days of its receiving written notice of any loss for which the Indemnified Party is entitled to indemnification pursuant to Section 6.1 or 6.2 (an “Indemnifiable Claim“) resulting from the assertion of liability by third parties. The Indemnifying Party shall have thirty (30) days after receipt of notice of an Indemnifiable Claim to (a) cooperate in its defense or (b) assume its defense with experienced counsel, reasonably satisfactory to the Indemnified Party. If, within thirty (30) days of receipt of notice of an Indemnifiable Claim, the Indemnifying Party fails to cooperate or assume such defense, the Indemnified Party shall have the right to undertake the defense of such Indemnifiable Claim on behalf of and for the account and risk of the Indemnifying Parties. No Party controlling such defense shall settle or compromise any Indemnifiable Claim without the written consent of the other Party, such consent not to be unreasonably withheld or delayed.
Term and Termination
1. Term. This Agreement is effective as of the Effective Date and will continue for an initial term ending at 11:59 p.m. Central Standard Time on December 31 of the year in which the Effective Date occurs. After such initial term, this Agreement shall be automatically continued for successive additional terms of one (1) calendar year each unless either Party delivers written notice to the other Party that this Agreement not be so renewed at least 30 days prior to commencement of the renewal term. This Agreement may sooner be terminated pursuant to Section 7.2.
2. Right to Terminate. This Agreement may be terminated:
  1. By either Party upon thirty (30) days prior written notice to the other Party for convenience, for any reason or no reason;
  2. By either Party upon thirty (30) days prior written notice to the other Party if such other Party materially breaches any provision of this Agreement and fails to cure such breach within such thirty (30) day period;
  3. By either Party at any time, immediately upon delivery of notice in the event of any materially breach by the other Party of Section 5; or
  4. By either Party at any time, immediately upon delivery of notice in the event the other Party files for relief or protection under federal or provincial bankruptcy, insolvency or other similar laws, or has filed against it a petition or similar action under any such laws.
3. Survival. The rights and obligations contained in Sections 3, 5, 6, 7 and 8 shall survive any termination or expiration of this Agreement.
General
1. Relationship; Authority. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between the Parties. The Parties are deemed to be independent contractors, and neither Party may in any way control the manner in which the other Party performs under this Agreement. Neither Party shall have authority to act for or bind the other in any manner and neither Party shall have authority to make representations, warranties, or commitments, or to create legal obligations or debts, that would be binding upon the other Party without such Party’s prior written consent.
2. Specific Performance. A breach by either Party of any of the promises or agreements contained in Section 5 hereof will result in irreparable and continuing damage to the other Party for which there will be no adequate remedy at law, and such other Party shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
3. Amendment. This Agreement may not be altered, changed or amended, except by an instrument in writing executed by the Parties with specific reference to this Agreement.
4. Governing Law. This Agreement is governed by, and is to be construed and enforced in accordance with, the internal laws of the State of Texas without regard to principles of conflicts of laws.
5. Dispute Resolution. In case of any dispute, claim or controversy arises out of or in connection with this Agreement, or in respect of any legal relationship associated herewith (a “Dispute“), the Parties shall attempt to settle the Dispute by negotiation between senior executives of both Parties. If the Dispute has not been resolved, for any reason, within thirty (30) days following delivery of a notice of Dispute, then the Parties may, but are not obligated to, seek to resolve the Dispute through non-binding mediation via a mediator mutually chosen by them. The Parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state courts of Harris County, Texas or the federal courts in the Southern District of Texas (Houston Division) for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby. Each Party agrees not to commence any action, suit or proceeding relating thereto except in such courts.
6. Entirety. This Agreement, inclusive of the Exhibits hereto, embodies the entire agreement among the Parties hereto with respect to the subject matter hereof, and all prior agreements between the Parties hereto with respect thereto (whether oral or written) are hereby superseded and replaced in their entirety.
7. Counterparts. This Agreement may be executed by original, facsimile or portable document format (pdf) signature and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
8. Notices. Any notice or communication required or permitted hereunder shall be in writing, and shall be delivered by courier, sent by facsimile transmission or prepaid, registered or certified mail, return receipt requested, and addressed (i) if to Everest, at Everest Funeral Package, LLC, 1300 Post Oak Blvd., Suite 1210, Houston, Texas 77056, Attn: President; and (ii) if to the RIA at the address shown below the RIA’s name on the signature page hereto. If mailed, such notice or communication shall be deemed given on the third business day after deposit of same in the mail, and if delivered by courier or facsimile to such address, upon delivery during normal business hours on any business day.
9. Captions. The captions contained in this Agreement are solely for convenient reference and shall not be deemed to affect the meaning or interpretation of any article, section, or paragraph hereof.
10. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants and restrictions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid, void or unenforceable.
11. Assignment. Neither Party shall assign or in any manner transfer any obligation assumed or contemplated by this Agreement without the prior written consent of the other Party, the granting of which shall not be unreasonably withheld. Everest shall be permitted to subcontract certain aspects of its obligations hereunder to third parties without, however, relieving Everest of its obligations to the RIA hereunder.
12. Force Majeure. If an event of Force Majeure occurs which prevents or substantially hinders either Party from carrying out its obligations hereunder, the Party unable to perform must give written notice thereof to the other Party setting out in reasonable detail the nature of such event of Force Majeure and its effect upon the obligations of the affected Party. If such notice is given and the Party unable to perform as a result of such event of Force Majeure takes all reasonable efforts to mitigate or overcome the effect of such event of Force Majeure and continues to perform all obligations that can be performed despite such event of Force Majeure, the affected Party shall be deemed not to be in default of its obligations hereunder, but only to the extent that any failure to perform such obligations is reasonably attributable to the effect of such event of Force Majeure; provided, however, that the foregoing shall not be deemed to excuse or delay the payment of money pursuant to any provision of this Agreement.
13. Further Assurances. The Parties agree to execute and deliver, and shall otherwise cause to be executed and delivered, from time to time, such further instruments, notices, and other documents, and do such further acts and things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and the intention of the parties as expressed herein.
14. Compliance with Laws. The Parties agree to comply with the provisions of all applicable federal, provincial and local laws, ordinances, regulations and codes (including the identification and procurement of any required permits, certificates, approvals and inspections) in their performance under this Agreement. Each Party will defend, indemnify and hold the other Party harmless from any loss, liability, damage or expense (including attorney’s fees) sustained as a result of the other Party’s noncompliance with such laws.

EXHIBIT A

DESCRIPTION OF EVEREST SERVICES

Full suite of funeral planning and concierge services, including:

24×7 Funeral Advisor Assistance

Information regarding a wide range of funeral planning issues
Assistance with creating a personal funeral plan

PriceFinder Research Reports

A nationwide database of funeral home prices
Detailed, local funeral home price comparisons displayed in a report
Clients will receive unlimited Everest PriceFinder reports (personal use only, subject to reasonable limitations)
Available on demand via the Everest website

Online Planning Tools

Includes: Personal History, 10-Key Decisions Planner, “My Wishes” Planning Guide, and Reference Guide
Plans can be accessed at any time via an online profile available to every Client
Information stored and maintained in a secure data warehouse

At-Need Family Support

Pricing information presented to Clients in an easy to read format
Pricing for funeral services and products negotiated with funeral homes selected by the family
Client’s personal funeral plan communicated to the funeral home, removing the family from a sales-focused environment
Personalized, 24 hour assistance throughout the funeral process

Post Death Family Support

Tools, such as the Remember Booklet and advisory assistance to help beneficiaries and families with tasks that should be completed after a funeral.

Tenzing®

A secure, cloud-based data vault for protecting, storing, updating and conveniently accessing important personal information

Will Prep

Create a will, health care directive and a power of attorney on line
Customized to each Client’s unique set of circumstances

Everest Services are subject to change from time to time, provided Everest shall provide at least 30 days advance written notice prior to the effectiveness of any change.

Everest Services are not intended to be and shall not be construed to be accounting, legal, tax or investment advice. Neither Everest nor its Affiliates will make specific investment recommendations, manage money or take custody of assets. Information provided is for educational purposes only. Individuals shall be encouraged to consult with local professionals in order to receive specific advice related to their situation. The decisions as to whether or not to utilize a resource identified by Everest or its Affiliates shall rest solely with the individual who has the sole and independent obligation to decide whether or not to retain such resource.