THIS COACHING SERVICES AGREEMENT (the “Agreement”) is made as of the signed date between (the “Client”) (hereinafter referred to as "you" or "your"), and My Financial Coach, LLC, a California limited liability company doing business as My Financial Coach, whose mailing address is 7014 E Camelback Rd. Suite 1452, Scottsdale, AZ 85251 (hereinafter referred to as “MFC,” “we,” “us,” or “our”). Client and MFC may also be referred to as a “Party” or together as the “Parties.”
RECITALS.
MFC provides financial coaching (the “Financial Wellness Program”) through its employed coaches (the “Coach(es)”) to individuals (the “Client(s)”) via email communications.
MFC Coaches refer Clients to subject matter experts (the “SMEs”) who are qualified and licensed to provide specialized counseling and professional services to the Clients;
MFC is provided compensation for the services of its Coaches by the SMEs (for enrollment fees paid by the; and
Client desires to engage MFC Coaches to provide the Services described on Exhibit A. and to maintain confidentiality regarding the Client’s personal information all as set forth in this Agreement.
NOW THEREFORE, in consideration of the promises and covenants herein the Parties agree as follows.
Coaching Services. MFC and its Coaches will perform the initial coaching services and the Financial Wellness Program as set forth in Exhibit A.
Scope of Engagement. MFC and its designated Coaches shall function exclusively as a financial wellness coach and not act as a plan administrator, attorney, certified public accountant, or investment advisor or in any other legal capacity for the Client. Each Coach is a CFP® and in that capacity will independently provide his or her services as a fiduciary for the Client. We are not authorized to, and shall not under any circumstances, exercise discretionary authority or discretionary responsibility with respect to the services to be provided by the SMEs referenced in this Agreement. We do not provide legal, tax, accounting, or investment advice.
Our recommendations for referral of you to SMEs are based upon our professional judgment. Neither MFC nor your Coach guarantees the results of any engagement. Client is free to obtain legal, tax, accounting and investment advisory services from any professional source, to review the professional advice and services that an SME referred to Client by MFC may provide. Client retains absolute discretion over all implementation decisions.
Your Responsibilities. You agree to provide us with confidential information, documentation, and/or data we may request with your prior approval, in furtherance of this Agreement, and to inform us of any changes that may occur with the information, documentation and/or data that is provided. You acknowledge that we and the SMEs we refer you to are not adequately qualified to perform services for you unless you diligently perform your responsibilities under this Agreement in a timely manner. We shall not be required to verify any information obtained from you, your attorney, accountant, investment advisor, or other professionals, and are expressly authorized to rely upon what you or they provide. All of your professional advisors are hereby given permission by you to provide us with information we may need. We do not act as an authorized plan administer and shall not be responsible for the timely preparation of any governmental reporting required by you.
Compensation and Fees. Our fees for the services provided under this Agreement shall be made up of certain separate components as described in accordance with the fee schedule attached hereto as Exhibit A (“Coaching Services Compensation”).
Assignment. Neither party may assign this Agreement without the prior consent of the other party. Both parties acknowledge and agree that transactions that do not result in a change of actual control of management shall not be considered an assignment.
Confidentiality. Except as required by applicable law, rule or regulation, or in order to perform the services contemplated by this Agreement, both parties agree to treat information provided in connection with this Agreement as confidential. We may use your information to market something to you or the Plan participants, but we will never share your information with a nonaffiliated entity for marketing purposes. To protect your personal information from unauthorized access and use, we use security measures that comply with federal law as it applies to a financial company, including but not limited to:
Confidential Information. MFC agrees that with respect to any Confidential Information furnished by the Client, such information shall be kept in strict confidence and shall not be used or disclosed, directly or indirectly, for any purpose other than that for which it was furnished. Such Confidential Information shall include, without limitation, any information contained on the Client’s account application, this client agreement or other forms and all nonpublic personal information about the Client that MFC receives from your or from any other third party. The foregoing notwithstanding, Confidential Information shall not include any information that (i) was known to the recipient at the time it received the information; (ii) was or became publicly known through no wrongful act of the recipient; (iii) was received from a third party without similar restrictions and without breach of this Agreement; (iv) was developed independently by the recipient; or (v) was approved for release by written authorization.
Restrictions. MFC agrees that with respect to any Confidential Information that is disclosed to it that, except as expressly specified in this Agreement, it shall:
keep such Confidential Information in strict confidence;
not disclose any such Confidential Information to any person (except to such client’s SMEs permitted under this Agreement and to its accountants, auditors, regulators, subcontractors including (as defined below) and attorneys, who are all under obligations of confidentiality to such party);
at the request of the Client, to use commercially reasonable efforts to return such Confidential Information to the Client upon the expiration or termination of this Agreement, or destroy the same, except as necessary to comply with applicable law;
Notwithstanding the foregoing and provided that MFC preserves the confidentiality of any Confidential Information retained, it shall not be in breach of this Agreement should copies of the Confidential Information be automatically archived in its computer system back-up in accordance with MFC’s security and/or disaster recovery procedures and destroyed in accordance with the MFC’s internal procedures;
MFC shall establish and maintain safeguards against the unauthorized access, destruction, loss, or alteration of Confidential Information in their control which are no less rigorous than those maintained by MFC for its own information of a similar nature and in accordance with all applicable law and regulation.
Exceptions. Nothing in this Agreement shall limit the ability of MFC while in possession of the Confidential Information to disclose such Confidential Information, and such party shall have no liability for such disclosure, if such disclosure is (i) required to be made pursuant to law or regulation, government authority, duly authorized subpoena or court order, (ii) required to be made to a court or other tribunal in connection with a dispute or the enforcement of Client’s rights under this Agreement; or (iii) is approved by the prior written consent of the Client.
Legal Process. In the event that MFC is served with legal process seeking disclosure of Confidential Information of the Client, it shall provide prompt notice to the Client, unless otherwise prevented by operation of law, and give the Client an opportunity to respond prior to such disclosure.
Survival. For the avoidance of doubt Section 4, “Confidentiality”, shall survive termination or expiration of this Agreement.
Regulation S-P. The parties acknowledge that financial institutions are subject to certain laws and regulations regarding the privacy and protection of consumer information, and that any receipt or use of personal information by the parties is also subject to compliance with such laws and regulations. Accordingly, the parties agree that any Nonpublic Personal Information, as defined in Section 248.3(t) of Regulation S-P, received from either party shall be subject to the limitations on redisclosure and reuse set forth in Section 248.11 of such Regulation. In addition, the parties acknowledge that they have adopted policies and procedures that address administrative, technical and physical safeguards that are reasonably designed to insure the security and confidentiality of the information, protecting against any anticipated threats or unauthorized access to or use of such information.
Service Provider Conflicts. We will be operating under a potential conflict of interest as described herein. We provide coaching to you and refer you to SMEs. It may be possible that an SME we refer you to would have a conflict with you or an third party you are affiliated with. If you accept this Agreement with us, you are acknowledging and consenting to this potential conflict of interest.
Arbitration. Subject to the conditions and exceptions noted below and to the extent not inconsistent with applicable law, in the event of any controversy, dispute or claim arising out of or relating to this Agreement, both parties agree to submit the dispute to arbitration before a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association then in effect. The prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses.
You understand that this agreement to arbitrate does not constitute a waiver of your right to seek a judicial forum where such waiver would be void under federal or applicable state laws.
Death or Disability. If you are a natural person, your death, disability, or incompetence will not terminate or change the terms of this Agreement. However, your executor, guardian, attorney-in-fact, or other authorized representative may terminate this Agreement by giving us proper written notice as described in Section 11 hereafter.
Representations, Warranties, and Acknowledgements. You represent and warrant to us that the terms and conditions of this Agreement are consistent with the other agreements that might relate to the Services rendered by MFC or it’s Coaches or SMEs and that the person executing this Agreement is duly authorized and empowered to enter into this Agreement.
You acknowledge that you will provide us with the information, documentation, and/or data described in Exhibit A in the manner described therein; you represent that such information, documentation, and/or data is complete and accurate at the time of entering into this Agreement; and you warrant that you will promptly inform us in writing if and when such information, documentation, and/or data becomes incomplete or inaccurate during the term of this Agreement.
MFC represents and warrants to you that (i) the terms and conditions of this Agreement are consistent with the other agreements that might relate to the Services rendered by MFC or its Coaches or SMEs and that the person executing this Agreement on behalf of MFC is duly authorized and empowered to enter into this Agreement; (ii) this Agreement has been duly authorized by the appropriate corporate or other action and when so executed and delivered shall be binding in accordance with its terms; (iii) MFC is and shall be compliant with all laws and regulations and maintains all licenses and certifications applicable to MFC and the Services provided by MFC under this Agreement.
Entire Agreement. This Agreement and the Exhibits annexed hereto, which Exhibits are incorporated herein by reference and made a part hereof, constitute the entire Agreement between the parties and supersedes all understandings, agreements (oral and written), or representations with respect to the subject matter hereof. This Agreement may only be amended, revised or modified with our written consent. Each party acknowledges that no representation, inducement or condition not set forth herein has been made or relied upon by any party.
Waiver. No failure by us to exercise any right, power, or privilege that we may have under this Agreement shall operate as a waiver thereof. Further, no waiver of any deviation from, or breach of, this Agreement by you shall be deemed to be a waiver of any subsequent deviation or breach.
Termination. This Agreement shall continue in effect from the effective date set forth above and may be terminated immediately with or without cause by email, or verbal telephone notice from the Client to the telephone number provided to the Client by the Coach, as all such calls are recorded. The Coach will confirm Termination via email to the client. Termination of this Agreement will not affect: (i) the validity of any action previously taken by us under this Agreement; (ii) liabilities or obligations of the Parties from transactions initiated before termination of this Agreement; (iii) your obligation to pay us fees (if any) that have already been earned under this Agreement, or (iv) liabilities or obligations of the parties pertaining to confidentiality or indemnification. Upon the termination of this Agreement, we will not have any continuing obligation to take any action, except as described in this Section 12. If you terminate our services, the balance (if any) of our unearned fees shall be refunded to you and the balance (if any) of our earned fees shall be charged to you (if applicable).
Upon termination of this Agreement, we shall retain all files as required by law. The files shall be treated as Confidential Information as provided under Section 4 of this Agreement. Copies of the files will be forwarded as you direct, provided all our earned fees have been paid. The cost of copying will be charged to you.
Indemnification. You the Client agree to indemnify and hold us harmless against any and all claims, actions, expenses, and liabilities suffered or incurred by us and relating to or arising from this Agreement that result from you, your attorney, accountant, or other professional advisor, or a prior recordkeeper for supplying incorrect or untimely information or are caused by the action or inaction of one or more of such persons. We shall indemnify and hold you harmless against any and all claims, actions, and expenses and liabilities suffered or incurred by you and relating to or arising from this Agreement that are directly related to our negligent provision of our services, but not in excess of the lesser of: (i) the cost of restoring matters to the position it would have been in but for our error; or (ii) the fees paid by you under this Agreement for the twelve-month period immediately preceding the occurrence giving rise to the claim. In the case of our gross negligence, our obligation to restore matters to the position it would have been in but for our error shall not be limited by our prior period fees.
Notices. Any notice or correspondence required in connection with this Agreement will be deemed effective upon receipt if delivered to the party at the appropriate address listed above unless (a) the Party has notified the other Party(ies) of another address in writing or (b) you have consented in writing to receive such notice, correspondence, or other communication from us by facsimile or electronic delivery (e.g., e-mail). All of your directions to us (unless otherwise provided herein) shall be in writing. We shall be protected in relying upon any such direction, notice, or instruction until we have been advised in writing of changes therein.
Counterparts. This Agreement may be executed 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. The execution of this Agreement may be by actual or facsimile signature.
Severability. If any provision of this Agreement is deemed to be invalid or unenforceable or is prohibited by the laws of the state or jurisdiction where it is to be performed, this Agreement shall be considered divisible as to such provision and such provision shall be inoperative in such state or jurisdiction. The remaining provisions of this Agreement shall be valid and binding and of full force and effect as though such provision were not included.
Governing Law, Venue, and Jurisdiction. This Agreement and any dispute, disagreement, or issue of construction or interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein or performance shall be governed or interpreted according to the internal laws of the California without regard to choice-of-law considerations except for the Section entitled Arbitration, which shall be governed by the Federal Arbitration Act. Any action, suit or proceeding arising out of, under or in connection with this Agreement seeking an injunction or not otherwise submitted to arbitration pursuant to this Agreement shall be brought and determined in the appropriate federal or state court in California and in no other forum. The parties hereby irrevocably submit to the jurisdiction of any such state court or federal court having jurisdiction in California in any such suit, action or proceeding arising out of or relating to this Agreement.
Section or Paragraph Headings. Section headings herein have been inserted for reference only and shall not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or in part any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the first written above.
Exhibit A - COACHING SERVICES AND COMPENSATION
Coaching Services. According to Section 1 of the Coaching Services Agreement the Coaching Services to be provided by MFC to the Client shall be as follows:
General Services to Client:
We provide access to our MFC digital platform hosted by eMoney for the Client to load information and utlize tools to track and understand their personal financial situation.
Our Coaches are available 24/7 by email to help educate about financial planning topics. Normal timelines to answer questions are 24 business hours.
Compensation and Fees for our services appear in Section 2 of this Exhibit.
From time to time when a Client has greater needs, i.e. estate planning, wealth management, investment management, life insurance, property and casualty insurance etc. we will refer you to one of our subject matter professionals (SMEs) who we believe has professional knowledge of the issue at hand. We may receive revenue sharing with them through our RIA, broker dealer or a licensee, but it will not impact the cost of such service for the Client (e.g. the fee is paid as a portion of the SME’s compensation). We will disclose such revenue sharing agreement when an SME is referred. In most cases we will give the Client a list of SMEs to choose from.
MFC will maintain complete compliance under all government agencies that it is licensed under. MFC will carry E&O insurance in the amount of $1 million. All Client information will be held confidential.
Financial Wellness Services to Client:
Goals Based Coaching via email (Retirement planning, insurance needs analysis, estate planning, college planning, etc.).
Cash-flow analysis and budgeting assistance via email.
Video content and email assistance helping the Client aggregate their personal financial data.
Warehousing Client documents in our MFC digital platform hosted by eMoney.
Provide general guidance via email on resources available to the Client outside of subject matter experts (e.g. Mint, NerdWallet, Vanguard, Etc.).
Compensation and Fees. According to Section 2 of the Coaching Services Agreement, compensation and fees to be paid to MFC by the Client shall be as follows:
Initial Fees paid by Individual: $35 per month until cancelled according to termination terms or changed to different model.
