This Advisory Agreement (the “Agreement”), which is entered into by you (“you” or the “Client”) and Concreit Fund Management LLC (“Adviser”, “we” or “our” and together with you, the “Parties” and each, a “Party”), sets forth the terms and conditions under which the Adviser offers the investment advisory services described below (the “Services”).
The Adviser offers the non-discretionary investment advisory Services through its website at www.concreit.com (the “Website”) or its mobile application (the “App”), together referred to as the “Platform.” To use our Services, you must agree to the provisions of this Agreement, including all related documents referred to in this Agreement. This Agreement is effective on the date you indicate your acceptance electronically.
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 Agreement. Clicking that you accept has the same legal effect as signing a paper version of this Agreement. You acknowledge that you have the legal capacity, authority and power to execute this Agreement, and that this Agreement is a legal, valid, and binding Agreement upon you.
YOU MUST READ AND CONSIDER THIS AGREEMENT CAREFULLY AND CONTACT ADVISER TO ASK ANY QUESTIONS YOU MAY HAVE BEFORE ENTERING INTO THIS AGREEMENT.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION. SEE SECTION 14 FOR AN IMPORTANT NOTICE CONCERNING YOUR RIGHTS.
PLEASE NOTE: This Agreement creates a binding contract between you and Adviser. Please review the Agreement and all related documents carefully. Contact us at firstname.lastname@example.org if you have any questions.
The Services are intended for use by individual investors. Through the Platform, you can make investments in certain offerings (the “Offerings”), enroll in auto-investment plans, request redemptions, access account-related documentation and other account-related functions, and receive updates. The Offerings are managed by Adviser, and are Regulation A+ private investment offerings exempt from registration of the Securities Act of 1933. The Offerings are managed as diversified portfolios of commercial real estate investments located in the United States such as (i) commercial real estate, including industrial, multifamily, office, retail and other real property types (“Direct CRE”) and (ii) real estate-related securities, including equity and debt securities of both publicly traded and private companies, including REITs and pass-through entities that own real property or loans secured by real estate, including investments in commercial mortgage-backed securities and derivative instruments (“Real Estate-Related Securities,” collectively with Direct CRE sometimes referred to as “Real Estate Investments”).
Through the Platform, Adviser will seek information from you including your age, investment objectives, investment experience, time horizon, risk tolerance, exit timing, liquidity needs, financial situation, and employment. Based on your responses, Adviser may recommend that an investment in its Offerings may not be suitable.
You may establish an automatic investment plan for recurring investments into the Offerings on a predefined schedule. You will be required to read the Offering Circular and any supplements and electronically complete and execute an automatic investment plan agreement through the Platform.
Your investment in any individual Offering may not exceed 10% of the greater of your annual income or net worth. You are encouraged to review Rule 251(d)(2)(i)(C) of Regulation A under the Securities Act of 1933, as amended, for additional information on this limitation. The Platform includes methodology to ensure that your total investments, including investments made through an automatic investment plan, do not exceed 10% of the greater of your annual income or net worth. If you attempt to make an investment that exceeds these thresholds, you will not be able to complete the intended investment, or you will be directed to invest a smaller amount.
Adviser, as the investment manager of the Offerings, has discretion with respect to the selection of specific investments and the purchase and sale of assets within the Offerings. However, advice provided to you through the Platform is given on a non-discretionary basis.
You are solely responsible for evaluating the merits and risks associated with any securities investments made through the Platform. We do not provide any investment advice other than as outlined in this Agreement. Our services are provided solely through the Platform. We do not provide investment advice in person, over the telephone, or through any other medium. We do not provide any legal, accounting, or tax advice.
You hereby understand and agree that the Platform: (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 any third party; (d) has limits on 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. You acknowledge that there is no guarantee, representation, warranty, or covenant that the Offerings will perform better over any time period than any other portfolio, instrument and/or investment or combination thereof made available through the Platform or otherwise available in the market.
You further acknowledge that the services you receive through participating in the Platform are sufficient consideration for you to enter into this Agreement.
You acknowledge, understand and agree that:
THE CLIENT AGREES TO READ AND UNDERSTAND ALL MATERIALS PROVIDED TO CLIENT BY THE ADVISER IN CONJUNCTION WITH CLIENT PARTICIPATION ON THE PLATFORM AND TO UNDERSTAND ALL OF THE LIMITATIONS, FUNCTIONS AND TERMS OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE OFFERINGS AND AUTOMATIC REINVESTMENT PLANS.
You may terminate this Agreement at any time for any reason by contacting us at email@example.com or requesting to close your account through our Platform. We may terminate this Agreement at any time for any reason by sending you a notice of termination by email or other means of notification via the Platform. We may terminate this Agreement immediately and without notice if you breach the terms of this Agreement. You may only redeem your investments in the Offerings in accordance with the Offering circulars. Your redemption of all investments in the Offerings will automatically terminate this Agreement.
Your death or incapacity shall not terminate any authorizations you grant to us in this Agreement until we receive written termination notice thereof from your executor, guardian, attorney-in-fact or other authorized legal representative.
Unless otherwise provided by applicable law (including, without limitation, any non-waivable right or remedy you have under applicable federal or state securities laws), you understand and agree that the termination of this Agreement is your sole right and remedy with respect to any dispute with us, including, without limitation, any dispute related to, or arising out of: (i) any terms of this Agreement or our enforcement or application of this Agreement; (ii) any of our practices or policies or our enforcement or application of these policies; (iii) the content available through the Platform or any change in content provided through the Platform; (iv) your ability to access and/or use the Platform; or (v) the amount or types of our fees or charges, surcharges, applicable taxes, or billing methods, or any change to our fees or charges, applicable taxes, or billing methods. If the limitation on remedies described above is not enforceable in whole or in part for any reason, in no event will our total aggregate liability for any claims, losses, or damages relating to this Agreement or the Platform, whether in contract or tort, including negligence, will not exceed the greater of (a) the total amount received by us from you during the six-month period prior to the act, omission or occurrence giving rise to such liability, or (b) $50, even if either Party has been advised of the possibility of such claim, loss, or damage; provided, however, that such limitation shall not apply if a greater recovery is required pursuant to non-waivable provisions of applicable securities laws. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.
For its Services under this Agreement, Adviser currently charges an annualized fee of 0.25% of your assets under management. If your assets under management are less than $5,000, you will incur a flat advisory fee of $5 per month. Fees are typically charged on a monthly basis in arrears. Fees for partial billing periods will be prorated based on the number of days your investment is active during the billing period. Because fees are collected in arrears, no refunds will be given upon termination.
Fees will be deducted from the bank account you have associated with your account on the Platform.
Adviser typically receives an annualized fee of 1.00% of assets under management directly from the Offerings it manages, for advising and administering each Offering. With regard to your assets invested in the Offerings, this annualized fee is reduced to 0.75% of assets under management.
Concreit receives additional fees from the Offerings related to the management of the Offerings, such as financing fees, acquisition/origination fees, servicing fees, property management fees, and disposition fees. Please see the Offering Circular(s) for details on management fees.
Additionally, it is your responsibility to determine whether 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 may be assessed with respect to your investments. You understand and acknowledge that the Adviser does not provide advice with respect to taxes.
By accepting this Agreement, you are providing your consent for us to provide communications to you electronically to your email associated with your Account, or by posting on the Platform. By agreeing to electronic delivery, you are giving informed consent to electronic delivery of all Account Documents, as defined below, other than those you have specifically requested to be delivered in paper form. “Account Documents” include notices, disclosures, current and future account statements, regulatory communications (such as privacy notices), and any other information, documents, data, and records regarding your Account and the Services (including amendments to this Agreement) delivered or provided to you by the Adviser and any other parties. You agree that you can download, save, or print any Account Documents you receive via electronic delivery for your records.
All communications sent to you by either of these methods will be treated as if they were given to you personally, whether or not you receive or read them. You agree that you have the necessary hardware, software, mobile applications, or other technology required to receive and review communications, including internet access and a valid email address. You agree to promptly update your email address if it changes.
We will not vote proxies on your behalf. Additionally, we 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 held. We will not take any action or render any advice, or otherwise be responsible, with respect to any securities held in or formerly held, which are named in or subject to legal proceedings, including bankruptcies or class action lawsuits.
All investments involve a certain amount of risk and losses are possible, including the potential loss of all amounts invested. Past performance does not indicate future performance. We do not guarantee that you will meet your financial goals and objectives by using our Services. Not all investments are suitable for all investors. Any investment in securities involves the possibility of financial loss that you should be prepared to bear.
The Adviser 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. The Adviser does not guarantee the success of any given investment decision or strategy that the Adviser may recommend or undertake, or the success of the overall management of the Offerings available through the Platform. You understand and agree that the Adviser has not made, and is not making, any warranty or guarantee as to the performance or profitability of the Offerings and/or any of the investments therein. Investment performance of any kind can never be predicted or guaranteed, and the Adviser does not guarantee that you will avoid financial loss.
You acknowledge, understand and agree that:
You further understand that Offerings are subject to various market, currency, economic, political and business risks, and that those investment decisions will not always be profitable.
The aforementioned risks are not inclusive and should be carefully considered by you. For a more exhaustive list of risk factors associated with investing with the Adviser, please see the description of investment risks included in Item 8 of our Form ADV Part 2A Disclosure Brochure (the “Disclosure Brochure”), which is available on the Platform and on the U.S. Securities and Exchange Commission’s Investment Adviser Public Disclosure webpage at www.adviserinfo.sec.gov.
It is understood that the Adviser performs investment advisory services for other clients and performs investment management of the Offerings. You acknowledge that the Adviser may give advice and take action with respect to any of its other clients, which may differ from the advice given or the timing or nature of action taken with respect to you. The Adviser, its officers, employees, and agents may have or take the same or similar positions in specific investments for their own accounts, or for the accounts of other clients, as the Adviser recommends for you.
This Agreement, as it may be amended from time to time, including any other documents provided on the Platform, reflects the entire agreement between the Parties. This Agreement supersedes any prior Agreement that you may have entered into with us. We may amend this Agreement, including our fees, at any time by providing you with notice of any amendments at least 30 days in advance of the effective date of any changes. Notice may be given by email or within the Platform. The amended Agreement will be posted on the Platform. If you object to the amendment, you may terminate this Agreement as outlined in the “Termination” section above. If you continue to use the Platform after the effective date of an amended Agreement, we will consider you to have agreed to and accepted the terms and conditions of the amended Agreement.
Except to the extent that it is preempted by federal law, the law of the State of Washington (without regard for conflicts of law principles) will govern the construction, validity, and administration of this Agreement. However, nothing in this Agreement will be construed contrary to the Investment Advisers Act of 1940, as amended.
You may not assign your rights or obligations under this Agreement without our prior express written consent. We shall not assign (within the meaning of the Advisers Act) our rights or obligations under this 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 email of our intent to assign such rights or obligations. Any reorganization, restructuring, or other transaction affecting our ownership will not be deemed to be an assignment (within the meaning of the Advisers Act) of this Agreement, so long as such reorganization, restructuring, or transaction does not result in a change of actual control or management.
ALL PARTIES TO THIS 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:
THIS ARBITRATION PROVISION SHOULD BE READ IN CONJUNCTION WITH THE DISCLOSURES IN THIS AGREEMENT. ANY AND ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN THE PARTIES OR THEIR REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS, OR CONTROL PERSONS, ARISING OUT OF, IN CONNECTION WITH, FROM, OR WITH RESPECT TO (i) ANY PROVISIONS OF OR THE VALIDITY OF THIS AGREEMENT OR OTHER AGREEMENTS RELATING TO YOUR PARTICIPATION IN THE SERVICES, (ii) THE RELATIONSHIP OF THE PARTIES HERETO, (iii) ANY CONTROVERSY ARISING OUT OF OUR BUSINESS (COLLECTIVELY, "CLAIMS"), OR (iv) ANY TRANSACTIONS IN YOUR 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 YOU EXPRESSLY WAIVE ANY RIGHT TO BRING A CLASS ACTION LAWSUIT OR ARBITRATION AGAINST US OR OUR REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS, OR CONTROL PERSONS WITH RESPECT TO ANY CLAIMS.
Notwithstanding the foregoing or anything to the contrary in this Agreement, in no way shall this Agreement constitute a waiver or limitation of rights that you may have under federal or state securities laws to pursue a remedy by other means if and to the extent such laws guaranty you such right and do not permit the waiver thereof.
You acknowledge receipt of our Disclosure Brochure and our Client Relationship Summary (“Form CRS”), delivered electronically and available on the Platform, which documents contain 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 Disclosure Brochure and Form CRS are also available on the SEC’s Investment Adviser Public Disclosure page at www.adviserinfo.sec.gov. The Disclosure Brochure and Form CRS are considered part of this Agreement.
Except as required by law or requested by regulatory authorities, we agree to maintain in strict confidence all of your nonpublic personal and financial information that you furnish to us, except for information that you explicitly agree to share publicly. You agree that you shall not use confidential information you receive from us for developing a service that competes with the Platform.
You consent to us recording and/or monitoring your telephone calls and electronic communications with our representatives and associated persons without further notice. You expressly authorize our representatives or associated persons to contact you for purposes of evaluating the offering of the advisory services, the Services, and other products and services by calling, writing, or emailing at the telephone number(s), mailing address, and/or email address(es) you provide, including any additional or updated telephone numbers, mailing addresses, or email addresses.
The authorization in the preceding sentence will remain in effect unless and until you specifically revoke it by notifying us.
Except as may otherwise be provided by law, we will not be liable to you for (i) honest mistakes in judgment or for losses due to those mistakes, or for any other loss or damage arising out of or based upon any act or omission by us, including our effecting or failing to effect any transaction, unless we have knowingly violated any applicable law or are found in a proceeding to have been grossly negligent or to have engaged in willful misconduct; (ii) any loss arising from our adherence to your instructions; or (iii) any act or failure to act by the Introducing Broker, the Custodian, or by any other third party. The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing in this Agreement will waive or limit any rights that you have under those laws.
The Adviser shall not be liable for (i) force majeure or other events beyond the control of the Adviser, including without limitation any failure, default, or delay in performance resulting from computer or other electronic or mechanical equipment failure, malfunction or unavailability, unauthorized access, theft, operator errors, governmental, judicial, or regulatory restrictions, exchange or market rulings or suspension of trading, strikes, failure of a common carrier or utility services, severe weather, or breakdown in communications not reasonably within the control of the Adviser or other causes commonly known as “acts of God,” whether or not any such cause was reasonably foreseeable, or (ii) general market conditions unrelated to any violation of this Agreement by the Adviser.
Headings in this Agreement are descriptive and for convenience only and shall not be construed as altering the scope of the rights and obligations created by this Agreement.
Failure of either Party at any time to declare breach and termination of the Agreement due to any violation or violations by the other Party of the provisions hereof will not be deemed a waiver on the part of such Party. Any subsequent violations by the other Party following a demand for strict compliance shall not be deemed a waiver, expressed or implied, and notice of breach thereafter, need not be served on the other Party.
If any provision of any of this Agreement or other agreement related to the Services 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 Agreement’s remaining provisions.
By accepting this Agreement, you are acknowledging that you are aware that your electronic signature has the same legal effect as signing a paper agreement.
BY CLICKING OR TAPPING “ACCEPT AND CONTINUE” I AGREE TO ENTER INTO THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.