GRATtrack Terms of Service
These Terms of Service (these “Terms”) are a legal agreement between GRATtrack, LLC, a Delaware limited liability company (“Company,” “we,” or “our”) and the person or entity approved by Company that registers for access to the Platform and accepts these Terms, including a licensed attorney, law firm, financial advisor, accountant, family office, or other person approved by the Company (“Customer,” “you,” or “your”). These Terms govern your access to and use of the GRATtrack platform (the “Platform”).
The Platform is a software-as-a-service offering that assists licensed attorneys in administering rolling grantor retained annuity trusts (each, a “GRAT”) by tracking the performance of portfolio assets held in a limited liability company against Customer-defined financial parameters and by generating Generated Documents, and, in the Premium Tier, notifying and generating additional Generated Documents when a lock is initiated (whether manually or automatically upon those parameters being met), together with its documentation and accompanying data. The Platform is designed for use with two-year rolling GRATs funded with an ownership interest in one limited liability company whose assets consist solely of publicly traded marketable securities (each, a “Subscribed Entity”). The Platform does not support: (a) GRATs with terms other than two years; (b) GRATs funded with closely held business interests or other non-publicly-traded assets; (c) the reinvestment of dividends, whether in cash or in stock (except with manual updates by an Administrator as described in Section 8); or (d) any use case not expressly described in the Platform documentation. Use of the Platform for an unsupported use case is at your sole risk and is likely to produce inaccurate outputs.
The Platform is made available to law firms, licensed attorneys, and other authorized persons (such as financial advisors, accountants, and family offices) who register for access, and may be used only as a supplemental tool to assist in the administration of GRATs. A licensed attorney, or an individual acting under the supervision of a licensed attorney, must review and approve any Generated Documents before they are finalized or used with any End Client. The Platform does not provide legal advice, and nothing made available through the Platform constitutes, or should be construed as, legal advice. Without limiting the foregoing, no strategy, output, or other information generated by or through the Platform constitutes a representation or determination that any such strategy is legally sound, advisable, or beneficial for any client. The Platform does not constitute, and is not intended as, the practice of law.
PLEASE READ THESE TERMS CAREFULLY BEFORE REGISTERING FOR OR USING THE PLATFORM. BY CLICKING “I AGREE,” CHECKING THE ACCEPTANCE BOX, REGISTERING FOR AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE PLATFORM.
1.1 Agreement. By registering for an account, clicking “I Agree,” checking the acceptance box, or otherwise accessing or using the Platform, Customer agrees to be bound by these Terms. These Terms constitute a binding legal agreement between Customer and Company.
1.2 Eligibility. The Platform is available to law firms, licensed attorneys, and other authorized persons (including but not limited to financial advisors, accountants, and family offices) that register for access. By accepting these Terms, Customer represents that a Designated Attorney, or an individual acting under the supervision of a Designated Attorney, is responsible for each End Client’s legal engagement, for all legal services provided in connection with use of the Platform, and for reviewing and approving all Generated Documents before they are finalized or used with any End Client. Company reserves the right to verify eligibility and to deny or revoke access if eligibility requirements are not met. Non-attorney Customers may register and pay, but no Order may be placed and no Generated Documents may be used unless a Designated Attorney has accepted responsibility for the relevant End Client matter and has approved the use of the Platform.
1.3 Authority. If Customer is a firm or entity, the individual accepting these Terms represents that they have authority to bind that firm or entity to these Terms. Acceptance by an individual without such authority does not create a binding agreement on behalf of the entity.
The following capitalized terms have the meanings set forth below. Capitalized terms used only in connection with the Premium Tier are defined in Section 11.1.
“Administrator” means an individual who has registered for a Customer account, or an individual subsequently designated as an Administrator by another Administrator, with authority on behalf of Customer to manage the Customer account, add or remove Authorized Users, add Subscribed Entities, select or change Tiers, and place Orders.
“Authorized User” means an individual who has been designated by an Administrator to access the Platform under Customer’s account. An Administrator is an Authorized User.
“Credentials” means the username, password, and any other authentication information used by a Customer, Administrator, or Authorized User to access the Platform.
“Customer Data” means all data input into the Platform by Customer, any Administrator, or any Authorized User.
“Designated Attorney” means an attorney licensed to practice law and responsible for legal representation of the relevant End Client with respect to estate planning matters.
“End Client” means the individual, grantor, trustee, or other authorized representative on whose behalf Customer uses the Platform with respect to a Subscribed Entity.
“Generated Documents” means the documents generated by the Platform, including any template trust agreements, assignment instruments, purchase agreements, promissory notes, valuation worksheets, and related instruments.
“Incapacity” means the inability of an individual to manage such individual's financial affairs or make informed decisions regarding such individual's property or legal affairs, which inability has been determined by a licensed physician to be permanent or reasonably expected to continue indefinitely.
“Order” means a subscription to the Platform for a specific Subscribed Entity placed by an Administrator through the Platform’s subscription interface, including any subsequent order for Tier changes or renewals with respect to that Subscribed Entity.
“Subscribed Entity” means a limited liability company whose ownership interest has been or will be contributed to a GRAT by an End Client, and that an Administrator has registered on the Platform for monitoring pursuant to an Order.
“Subscription Term” means the one-year subscription period for a Subscribed Entity, commencing on the date the initial Order for that Subscribed Entity is placed and renewing as set forth in Section 6.3, unless earlier terminated.
“Tier” means the Base Tier or the Premium Tier of the Platform, as described in Sections 5 and 11.
3 Account Registration; User Hierarchy
3.1 Registration. To access the Platform, you must complete the registration process, which includes providing accurate and complete information and accepting these Terms. The initial individual registering for Platform access becomes the initial Administrator for the Customer account. Company will review each registration and may approve or deny access in its discretion, including to verify that the registrant meets the eligibility requirements of Section 1.2. Company will notify the registrant by email upon approval or denial. Registration and maintenance of a Customer account does not itself give rise to any subscription fees; fees are charged only upon placement of an Order as described in Section 5.
3.2 Administrators. An Administrator may designate additional Administrators through the Platform’s administrative controls. An Administrator need not be a licensed attorney; however, a Designated Attorney, or an individual acting under the supervision of a Designated Attorney, must review and approve all Generated Documents before they are finalized or used with any End Client and, at the time that the initial Order is submitted and at all times thereafter, a Designated Attorney must be designated as an Administrator. An Administrator may also remove or replace other Administrators. At least one Administrator must be active on the Customer account at all times. Each Administrator is deemed to have authority to bind Customer with respect to all Orders placed through the Platform. Customer is responsible for all actions of its Administrators.
3.3 Authorized Users. An Administrator may designate Authorized Users through the Platform’s administrative controls. Customer is responsible for all acts and omissions of its Authorized Users and remains responsible for ensuring that a Designated Attorney, or an individual acting under the supervision of a Designated Attorney, reviews and approves all Generated Documents before they are finalized or used with any End Client.
3.4 Credentials. Credentials are personal to each Administrator and Authorized User and may not be shared. Customer is responsible for maintaining the confidentiality of all Credentials issued under its account and for all activity occurring under Customer’s account, whether or not authorized. Customer shall promptly disable the Credentials of any Administrator or Authorized User who no longer requires access or no longer meets the eligibility requirements of Section 1.2, and shall promptly notify Company at support@grattrack.com of any suspected unauthorized access or use.
3.5 Account Information. Customer shall provide and maintain accurate, complete, and current registration and account information. Use of false or misleading registration information is grounds for immediate termination of access.
3.6 Designated Attorney Required. Before Customer places an Order and at all times thereafter, with respect to each End Client, a Designated Attorney must be designated as an Administrator and must accept these Terms.
4.1 License. Subject to Customer’s compliance with these Terms and timely payment of all amounts due, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the applicable Subscription Term to access and use the Platform solely for Customer’s internal business purposes, adjunctive to and in connection with the Designated Attorney’s legal representation of the relevant End Client in connection with GRATs.
4.2 Scope of Use. The license granted in Section 4.1 extends to all Administrators and Authorized Users acting within the scope of their designation. Customer shall ensure that each of its Administrators and Authorized Users comply with these Terms. Customer is responsible for all acts and omissions of its Administrators and Authorized Users and for all activity occurring under Customer’s account.
4.3 Restrictions. Customer shall not, and shall not permit any third party to: (a) use the Platform for any unlawful purpose; (b) probe, scan, or test the vulnerability of the Platform or circumvent any access controls; (c) introduce malware or other harmful code; (d) use the Platform in a manner that imposes an unreasonable load on the infrastructure or interferes with other users’ use of the Platform; (e) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share, or otherwise commercially exploit the Platform; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or algorithms of the Platform; (g) modify, adapt, or create derivative works of the Platform; (h) remove or alter any proprietary notices; (i) use the Platform to build a competing product or to develop machine learning models or other artificial intelligence technology; (j) interfere with or disrupt the integrity or performance of the Platform; or (k) use the Platform for any use case not expressly described in the Platform documentation or other than as expressly permitted by these Terms. Customer shall comply with all applicable laws and regulations in connection with Customer’s use of the Platform.
4.4 Reservation of Rights. As between Company and Customer, Company and its affiliate that own the Platform (the “Licensor”) own and retain all right, title, and interest in and to the Platform, including all intellectual property rights. Company licenses the Platform from the Licensor, which retains ownership. Company and the Licensor reserve all rights not expressly granted under these Terms. If Company becomes insolvent or ceases operations, or is the subject of a bankruptcy or similar proceeding, the license granted to Customer will, at the Licensor’s election, continue directly from the Licensor on the same terms, and the Licensor may enforce these Terms directly. Nothing in these Terms transfers any ownership interest in the Platform to Customer.
4.5 Updates and Changes. Company may update, modify, or discontinue features of the Platform from time to time. Company will use commercially reasonable efforts not to materially diminish the functionality available to Customer during a paid Subscription Term and will provide reasonable advance notice of material changes that affect Customer’s use of the Platform.
4.6 Feedback. Any suggestions, comments, or other feedback that Customer, any Administrator, or any Authorized User provides regarding the Platform may be used by Company without restriction, obligation, compensation, or attribution.
5.1 Subscription Required. Access to the Platform’s monitoring and reporting features for a Subscribed Entity requires an active subscription for that Subscribed Entity. A subscription is created by placing an Order through the Platform’s subscription interface. Each Subscribed Entity requires a separate Order and a separate subscription. There is no fee associated with maintaining a Customer account in the absence of one or more active subscriptions.
5.2 Base Tier. The Base Tier provides portfolio tracking for a Subscribed Entity, allowing Authorized Users to monitor holdings and track performance, and generates Generated Documents at inception of the GRAT and on each annual anniversary. The Base Tier does not include the Locking Functions. Subscription fees for the Base Tier are Company’s then-current published rates, available on Company’s website (https://grattrack.com/pricing-details).
5.3 Upgrades to Premium Tier. An Administrator may upgrade any Subscribed Entity from Base Tier to Premium Tier at any time through the Platform’s subscription interface. For upgrades requested more than thirty (30) days prior to the annual renewal date for the affected Subscribed Entity, the upgrade fee equals the full difference between the then-current Base Tier and Premium Tier subscription fees and is not pro-rated. Upon such upgrade, Company will provide immediate Premium Tier access for the remainder of the then-current Subscription Term. For upgrades requested within thirty (30) days prior to the annual renewal date, no upgrade fee will be charged; and subject to Section 11, Company will provide immediate Premium Tier access for the remainder of the then-current Subscription Term and will invoice the Premium Tier subscription fee on the annual renewal date.
5.4 Downgrades to Base Tier. Downgrades from Premium Tier to Base Tier take effect on the next annual renewal date.
5.5 Additional Subscribed Entities. Customer may add additional Subscribed Entities at any time by placing additional Orders through the Platform. Each additional Order creates a new, independent Subscription Term at Company’s then-current published rate for the elected Tier.
6 Subscription Fees; Billing; Auto-Renewal
6.1 Invoicing and Payment. Company will invoice Customer, at the billing contact designated by an Administrator, for all subscription fees promptly following placement of each Order and on each annual renewal. In the event the initial Administrator is no longer an Administrator, invoices will be sent to the Administrator who is a Designated Attorney. All subscription fees are due within fifteen (15) days of invoice. Amounts not paid when due will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. Company may suspend access to the Platform for any Subscribed Entity with respect to which subscription fees remain unpaid more than thirty (30) days past due.
6.2 Non-Refundable. All subscription fees are non-refundable and will not be pro-rated in the event of cancellation, non-renewal, or termination for any reason, including the expiration or termination of a GRAT, during a Subscription Term.
6.3 Auto-Renewal. Each Subscription Term will automatically renew for successive one-year periods at the then-current Tier unless an Administrator disables automatic renewal through the Platform or by written notice to Company at least thirty (30) days before the end of the then-current Subscription Term. Renewal pricing will be Company’s then-current published rates; provided that Company will provide at least sixty (60) days’ prior written notice of any subscription fee increase for the upcoming renewal term.
6.4 Taxes. Fees are exclusive of all taxes other than taxes based on Company’s net income. Customer is responsible for all applicable sales, use, value-added, and similar taxes.
7 Customer Data; No Account Integration
7.1 Manual Data Entry; Accuracy. The Platform does not integrate with, and does not retrieve data from, any brokerage, custodian, bank, investment, or other financial accounts of or on the behalf of any End Client. All holdings of the Subscribed Entity must be entered manually by an Administrator. The Administrator is solely responsible for the accuracy, completeness, and timeliness of all Customer Data, including the prompt entry of any change in the composition of the holdings of the Subscribed Entity, including dividend-related information required under Section 8 or other relevant information. All calculations, notifications, and outputs generated by the Platform are based solely on Customer Data as entered. Inaccurate, incomplete, or stale Customer Data will produce inaccurate Platform outputs. Company has no obligation to verify, and expressly disclaims any responsibility for, the accuracy of Customer Data.
7.2 Third-Party Market-Data Feeds. The Platform incorporates market-data feeds furnished by third-party providers to track the performance of holdings entered by the Administrator. Company does not warrant the accuracy, completeness, or timeliness of such feeds and is not liable for errors, omissions, latency, or interruptions in market data. All Platform calculations are based on end-of-day pricing furnished by such feeds, and not on real-time or intraday data.
7.3 End Client Aliases. Except with respect to the End-Client Acknowledgment, Customer may identify an End Client within the Platform using an alias, pseudonym, client or matter number, initials, or other identifier selected by Customer in lieu of the End Client’s legal name. Customer acknowledges and agrees that any Generated Documents generated for such End Client may reflect the alias or other identifier entered into the Platform rather than the End Client’s legal name. Customer is solely responsible for maintaining records sufficient to associate each such alias or other identifier with the applicable End Client and for ensuring that any Generated Documents are appropriate for their intended use, including replacing any alias or other identifier with the End Client’s legal name where necessary. Company shall be entitled to rely on the identifier entered into the Platform for all purposes under these Terms, and Customer’s use of an alias or other identifier shall not affect the validity of any calculation, invoice, Performance Fee, or other rights or obligations arising under these Terms. The End-Client Acknowledgment must identify the applicable End Client by the End Client’s legal name. Customer shall provide Company with the End Client's legal name and associated aliases or other identifiers used under this Section 7.3 for such End Client upon Company’s request.
The Platform calculates the dividends paid by dividend-paying stocks, but does not calculate the returns earned on cash held in an interest-bearing account or the actual purchase price of shares acquired under a dividend reinvestment plan ("DRIP"). The Platform will calculate such returns only to the extent an Administrator periodically updates the applicable holdings to reflect the purchase price of shares acquired under the DRIP or the actual cash position, including any interest accrued thereon.
9 Generated Documents; Customer Forms
9.1 Point-in-Time Limitation. Generated Documents produced by the Platform are dated as of the date of generation and reflect market data as of that date only. They are not intended to be relied upon, and may not be effective or appropriate, if used at a later date. Customer is responsible for reviewing and, if necessary, revising any Generated Documents before relying on them.
9.2 Customer Forms; Template Onboarding. Designated Attorney, or an individual acting under the supervision of a Designated Attorney, is responsible for providing the forms and documents the Platform will use as templates in the creation of Generated Documents (“Customer Forms”). Templates are configured and coded into the Platform by Company; Customer may not upload or use its own templates without Company’s involvement and approval, and Company will code each approved template to function with the Platform. Company will use reasonable efforts to accommodate Designated Attorney’s reasonable requests to revise or add Customer Forms, but is not obligated to implement any change it considers unduly burdensome, technically infeasible, or inconsistent with the Platform's design, and does not guarantee any turnaround time. No Customer Form or template is final or loaded into the live Platform until Company has approved it and Designated Attorney, or an individual acting under the supervision of a Designated Attorney, has given final approval. The Company may make available certain example documents through the Platform for illustrative purposes only (“Sample Forms”). The Sample Forms are not intended for use with any End Client or in any actual transaction, and do not constitute legal advice. Customer Forms must be reviewed and approved by a Designated Attorney before use. Company makes no representation or warranty as to the content, accuracy, or legal sufficiency of any Customer Form, Sample Form, or Generated Document, or that such documents will correctly or effectively accomplish any legal purpose, including the formation of a valid GRAT, the transfer of any interest in a Subscribed Entity, the locking of GRAT portfolio gains, or any other estate-planning objective. Designated Attorney, or an individual acting under the supervision of a Designated Attorney, is solely responsible for reviewing, verifying, and determining the legal sufficiency of all Generated Documents.
9.3 No Retention of Signed Documents. Company does not receive, accept, collect, store, or take responsibility for any executed or signed Generated Documents. The execution, delivery, filing, and retention of all signed documents are solely the responsibility of Designated Attorney, or an individual acting under the supervision of a Designated Attorney, and the relevant End Client.
10 No Legal, Investment, Valuation or Tax Advice
10.1 Adjunctive Tool; No Practice of Law. Customer acknowledges and agrees that: (a) the Platform is a software tool designed to be used as an adjunct to, and not a substitute for, the professional judgment of licensed attorneys in connection with their legal representation of End Clients; (b) Company does not practice law, and the Platform does not provide legal advice; (c) Company does not act as an attorney, tax advisor, accountant, appraiser, valuation consultant, investment adviser, broker-dealer, financial planner, fiduciary, trustee, or similar professional, and the Platform does not provide legal, tax, accounting, appraisal, valuation, investment, financial, fiduciary, or other professional advice or services; and (d) Customer will not represent to any End Client or third party that Company practices law, provides legal, valuation or investment advice, or is engaged in the practice of law or the provision of investment advisory or valuation services.
10.2 Non-Discretionary Tool. The Platform is a non-discretionary software tool that executes calculations and generates notifications and outputs based solely on parameters defined by Customer. Company does not exercise discretion or trading authority over any End Client account or portfolio, does not direct, place, or execute any trade, and does not provide personalized investment advice or recommendations.
10.3 No Adviser Relationship. Nothing in these Terms or in the operation of the Platform establishes an investment adviser, broker-dealer, fiduciary, trustee, or similar relationship between Company and Customer or any End Client. Company is not registered as an investment adviser under the Investment Advisers Act of 1940 or any state analog.
10.4 Designated Attorney’s Legal Responsibility. Designated Attorney remains solely responsible for: (a) determining the suitability of any GRAT strategy for an End Client; (b) compliance with the Internal Revenue Code, applicable Treasury regulations, and any state law affecting each GRAT and each Subscribed Entity; (c) determining, reviewing, approving, and substantiating all valuations, valuation dates, fair market value determinations, valuation inputs, assumptions, discounts, and related calculations used in connection with any GRAT or Subscribed Entity; (d) independently reviewing and verifying any valuation-related information, calculations, outputs, schedules, reminders, or document fields generated by the Platform; (e) the drafting, execution, funding, and administration of each GRAT; (f) timely filing of all required gift tax and other returns; and (g) all legal advice and client communications.
10.5 Valuation Disclaimer. Without limiting Section 10.4, Company is not responsible for the accuracy, completeness, defensibility, tax treatment, or legal sufficiency of any valuation, fair market value determination, valuation input, assumption, discount, calculation, or valuation-related output used in or generated through the Platform. Designated Attorney is solely responsible for reviewing, verifying, and approving all such information before using it in connection with any GRAT, Subscribed Entity, client communication, tax return, legal document, or other filing or deliverable.
10.6 No Reliance on Platform Outputs. Customer acknowledges and agrees that all calculations, notifications, schedules, reports, document fields, valuation-related outputs, and other outputs generated by the Platform are provided solely for administrative, informational, and workflow-support purposes. No output of the Platform constitutes or should be relied upon as legal advice, tax advice, accounting advice, investment advice, fiduciary advice, an appraisal, a valuation opinion, a fairness opinion, a tax opinion, or a determination of fair market value. Customer and Designated Attorney are solely responsible for independently reviewing, verifying, approving, and substantiating all Platform outputs before using or relying on them in connection with any GRAT, Subscribed Entity, End Client matter, legal document, tax return, client communication, filing, transaction, or other deliverable.
10.7 Unsupported Use Cases. Use of the Platform for any use case not expressly described in the Platform documentation is at Customer’s and the relevant End Client’s sole risk and is likely to produce inaccurate or misleading outputs.
The provisions of this Section 11 apply exclusively to Subscribed Entities enrolled in the Premium Tier. They do not apply to Base Tier subscriptions. In the event of any conflict between this Section 11 and the general provisions of these Terms, this Section 11 controls with respect to the Premium Tier.
(a) Premium Tier Features. With respect to a Subscribed Entity, the Premium Tier includes all Base Tier functionality together with the monitoring of user-defined performance thresholds and generation of alerts for Administrators and production of Generated Documents intended to facilitate locking of GRAT portfolio gains (collectively, the “Locking Functions”). The Generated Documents are prepared based on stock market pricing as of the applicable date and are intended to take effect after the close of trading as of the day on which the lock is initiated, whether the lock is initiated manually by an Administrator or automatically upon the user-defined thresholds being met. The Premium Tier subscription fee is Company’s then-current published rate, available on Company’s website (https://grattrack.com/pricing-details), plus the Performance Fee described in Section 11.2.
(b) Premium Tier Activation; End-Client Acknowledgment. Premium Tier access for a Subscribed Entity requires a written acknowledgement executed by the relevant End Client in the form attached as Exhibit A (an “End-Client Acknowledgment”). A single End-Client Acknowledgment applies to all Subscribed Entities associated with the relevant End Client, whether a Subscribed Entity is enrolled in the Premium Tier when the Acknowledgment is executed or at a later date. Company may activate the Premium Tier immediately upon Customer’s request, in reliance on Customer’s representation (which representation is deemed made upon initiation of Premium Tier access) that the relevant End Client has authorized the upgrade and agreed to the End-Client Acknowledgment. Customer shall obtain the executed End-Client Acknowledgment and deliver it to Company, by email or other means Company designates, within thirty (30) days after Premium Tier activation. If Customer does not deliver the executed End-Client Acknowledgment within that period, Company may suspend or remove Premium Tier access for the affected Subscribed Entity. Failure to obtain or deliver an executed End-Client Acknowledgment does not waive, limit, condition, or otherwise affect Company’s right to receive any Performance Fee that is or becomes payable with respect to the affected Subscribed Entity. Company is an intended third-party beneficiary of each End-Client Acknowledgment and may enforce its terms, including the End Client’s obligation to pay the Performance Fee, directly against the End Client and the End Client’s estate, trust, or successor.
(a) Definitions
The following capitalized terms are used exclusively in connection with the Premium Tier and have the meanings set forth below:
“Lock Functionality Remainder Value” means, for each Subscribed Entity, the aggregate value, calculated on a cumulative basis as of the end of the applicable Measurement Period, of all assets actually transferred or Locked and Deemed Transferred from all GRATs associated with such Subscribed Entity to the applicable remainder beneficiary or remainder trust since the Service Activation Date for such Subscribed Entity; provided that no asset or value shall be counted more than once. Assets actually transferred shall be valued as of the applicable date of transfer, and Locked and Deemed Transferred assets shall be included as of the applicable Lock Date but valued as of the applicable Termination Date, whether or not such Termination Date has occurred as of the end of the applicable Measurement Period, in each case using the same valuation conventions used by the Platform during operation. For purposes of calculating the Performance Fee, with respect to a locked GRAT, such GRAT’s assets after the applicable Lock Date shall be deemed to consist solely of a promissory note bearing interest at the short-term applicable federal rate determined as of the month of the Lock Date. For purposes of determining the Performance Fee, the value of such promissory note as of the Termination Date shall equal the remaining principal balance of the promissory note as of the Termination Date plus accrued but unpaid interest as of the Termination Date, assuming no prepayment of such promissory note at any time and assuming that any annuity payment from the corresponding locked GRAT is satisfied in-kind with the promissory note, first from accrued but unpaid interest and then from remaining principal. For the avoidance of doubt, Locked and Deemed Transferred assets shall be deemed transferred to the remainder beneficiary or remainder trust on the applicable Lock Date for purposes of inclusion in the cumulative Lock Functionality Remainder Value, notwithstanding that such assets are valued as of the applicable Termination Date.
“Baseline Outcome” means, for each Subscribed Entity, the aggregate value, calculated on a cumulative basis as of the end of the applicable Measurement Period, of all assets that were transferred or would have been transferred to the applicable remainder beneficiary or remainder trust since the Service Activation Date for such Subscribed Entity if the GRATs associated with such Subscribed Entity had been administered as standard two-year rolling GRATs without the Locking Functions, computed by the Platform using the same portfolio composition, contributions, distributions, valuation conventions, and other inputs actually entered by Customer for such GRATs, but assuming that all positions were held through the full applicable GRAT terms without any locking action.
“Locked and Deemed Transferred” means, for each GRAT associated with a Subscribed Entity, the aggregate value of the assets to be transferred or anticipated to be transferred to the remainder beneficiary or remainder trust as a result of the locking function of the Premium Tier, assuming such GRAT exists until its termination, computed by the Platform.
“Lock Date” means, for each GRAT associated with a Subscribed Entity and within the Measurement Period, the date the lock is initiated, whether the lock is initiated manually by an Administrator or automatically upon the user-defined thresholds being met.
“Measurement Period” means, for each Subscribed Entity and applicable Performance Fee invoice, the cumulative period beginning on the Service Activation Date for that Subscribed Entity and ending on the applicable measurement date. The applicable measurement date shall be: (a) for the initial Performance Fee invoice, the second anniversary of the Service Activation Date for that Subscribed Entity; (b) for each successive Performance Fee invoice, each subsequent anniversary of such activation date; or (c) the date of any triggering event described in Section 11.2(d), if earlier.
“Termination Date” means, for each GRAT associated with a Subscribed Entity and within the Measurement Period, the second anniversary of the funding of such GRAT.
“Performance Difference” means, for each Subscribed Entity, the positive amount, if any, by which the aggregate Lock Functionality Remainder Value exceeds the aggregate Baseline Outcome, measured as of the end of the applicable Measurement Period. If the aggregate Lock Functionality Remainder Value does not exceed the aggregate Baseline Outcome, the Performance Difference shall be $0.
“Assessed Value” means, for each Subscribed Entity and Measurement Period, the positive amount, if any, by which the Performance Difference measured as of the end of such Measurement Period exceeds the Prior Assessed Value. If the Performance Difference does not exceed the Prior Assessed Value, the Assessed Value for such Measurement Period shall be $0.
“Prior Assessed Value” means, for each Subscribed Entity, the aggregate Assessed Value for all prior Measurement Periods. Prior Assessed Value shall be deemed to be $0 for the initial Measurement Period.
“Total Assessed Value” means, for each Subscribed Entity and Measurement Period, the sum of the Prior Assessed Value and the Assessed Value for such Measurement Period.
“Performance Fee” means the fee payable by an End Client to Company pursuant to Section 11.2(b), calculated by applying the Applicable Percentage on a marginal basis to Total Assessed Value and subtracting the amount that would have been payable by applying the Applicable Percentage on a marginal basis to Prior Assessed Value, so that the Applicable Percentage tiers are applied cumulatively and no Assessed Value is charged more than once.
“Applicable Percentage” means the marginal percentage used to calculate the Performance Fee based on Total Assessed Value, as follows: (a) 1.50% for the portion of Total Assessed Value up to and including $2,000,000; (b) 1.25% for the portion of Total Assessed Value exceeding $2,000,000 and up to and including $10,000,000; and (c) 1.00% for the portion of Total Assessed Value exceeding $10,000,000.
“Service Activation Date” means for each Subscribed Entity, the date of the first GRAT initiated using the Platform with respect to such Subscribed Entity.
(b) Rate and Calculation. For each Subscribed Entity enrolled in the Premium Tier, Company is entitled to a Performance Fee for each Measurement Period equal to the amount determined under the definition of “Performance Fee” in Section 11.2(a). The Performance Fee shall be calculated on an aggregate basis across all GRATs associated with the applicable Subscribed Entity, based on the Lock Functionality Remainder Value, Baseline Outcome, Performance Difference, Assessed Value, Prior Assessed Value, Total Assessed Value, and Applicable Percentage for such Subscribed Entity. No Performance Fee shall be payable for any Measurement Period unless the Assessed Value for such Measurement Period is greater than $0.
(c) Performance Fee Initial Billing Date. Because the Performance Fee cannot be reliably measured until two full years of Baseline Outcome can be calculated, the first Performance Fee invoice for each Subscribed Entity will be issued on the second anniversary of the Service Activation Date for that Subscribed Entity, if Premium Tier activation occurred within two years of the Service Activation Date. If Premium Tier activation occurred after two years of the Service Activation Date, the initial Performance Fee invoice will be issued on the next annual anniversary of the Service Activation Date. Thereafter, the Performance Fee invoices will be issued annually on each subsequent anniversary of the Service Activation Date.
(d) Performance Fee Crystallization on Expiration or Termination. Notwithstanding Section 11.2(c), the Performance Fee for any partial Measurement Period shall be calculated and invoiced upon the earliest to occur of: (a) the effective date of cancellation, non-renewal, or termination of the Premium Tier subscription for the applicable Subscribed Entity; (b) cancellation, termination, or discontinuation of use of the Platform with respect to all GRATs associated with the applicable Subscribed Entity; (c) the death or Incapacity of the End Client; or (d) any other triggering event identified in the applicable Order. In each case, the Performance Fee shall be calculated through the date of the triggering event, subject to the treatment of Locked and Deemed Transferred assets under the definition of Lock Functionality Remainder Value, and invoiced no later than thirty (30) days following Company’s receipt of notice of the triggering event.
(e) Performance Fee End-Client Obligor. The Performance Fee is the obligation of the End Client and will be invoiced directly to the End Client (or the End Client’s estate, trust, or successor, as applicable). Customer will use reasonable efforts to facilitate billing, including providing Company with current End Client contact and billing information and, where applicable, prompt notice of triggering events under Section 11.2(d). Customer may, in its discretion and consistent with applicable law and professional responsibility rules, advance payment of the Performance Fee on behalf of an End Client; in all cases, the End Client remains the primary obligor to Company. For the avoidance of doubt, Customer is not responsible for payment of the Performance Fee solely by reason of its status as Customer or its activation, administration, or use of the Premium Tier for a Subscribed Entity.
(f) Performance Fee Statement and Disputes. Each Performance Fee invoice will be accompanied by a statement showing the inputs and calculations used to determine the Performance Fee. The End Client may dispute any calculation by written notice to Company within thirty (30) days of receipt of the statement; undisputed amounts must be paid by the invoice due date. Any dispute notice must describe in reasonable detail the specific calculation, input, or assumption being disputed and the basis for the dispute. Any portion of a Performance Fee not disputed in good faith within such thirty (30)-day period shall be deemed accepted and shall be due and payable in accordance with the applicable invoice. The parties shall cooperate in good faith to resolve any timely dispute, and any amount determined to be payable following resolution of the dispute shall be due within ten (10) days after such resolution.
(g) Performance Fee Values. All values, calculations, assumptions, and outputs used to determine the Performance Fee are used solely for purposes of calculating the Performance Fee under these Terms and do not constitute, and may not be relied upon as, an appraisal, valuation opinion, fair market value determination, tax opinion, legal opinion, accounting advice, investment advice, or other professional advice.
(h) Customer Data; Conclusive Calculation. Customer acknowledges and agrees that Administrators are solely responsible for entering, updating, maintaining, reviewing, and correcting all Customer Data in the Platform as required under these Terms. Company may calculate the Performance Fee based on the Customer Data available in the Platform as of the applicable measurement date. For purposes of calculating and invoicing the Performance Fee, such Customer Data shall be deemed accurate, complete, current, and conclusive, notwithstanding any failure by Customer or any Administrator to enter, update, modify, correct, or supplement such Customer Data as required under these Terms. No such failure shall waive, limit, condition, reduce, defer, or otherwise affect Company’s right to calculate, invoice, and collect any Performance Fee that is or becomes payable under these Terms. If Company later determines that Customer Data used to calculate a Performance Fee was incomplete, inaccurate, outdated, or otherwise incorrect, Company may issue a supplemental invoice or credit, as applicable, to reflect the corrected calculation.
(i) Illustrative Example of the Performance Fee Calculation. Exhibit B attached hereto provides examples solely to illustrate the application of the Performance Fee calculation and does not modify the definitions or operative provisions of this Section 11.2.
12.1 Confidential Information. Each party (the “Receiving Party”) may receive confidential information of the other party (the “Disclosing Party”), including, in the case of Company, the Platform’s features, performance, pricing, methodology, and roadmap, and, in the case of Customer, Customer Data and information regarding End Clients and their holdings (“Confidential Information”). The Receiving Party shall: (a) use Confidential Information only to perform under these Terms; (b) protect it with at least the same degree of care it uses for its own confidential information, but no less than a reasonable degree of care; and (c) not disclose it except to personnel and advisors who need to know and are bound by confidentiality obligations no less protective than these.
12.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate: (a) is or becomes publicly available other than through the Receiving Party’s wrongful conduct; (b) was received from a third party free of any obligation of confidence and without violation of any agreement; or (c) was independently developed without use of or reference to the Disclosing Party’s Confidential Information.
12.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law or governmental order, provided that, to the extent legally permissible, the Receiving Party promptly notifies the Disclosing Party and cooperates reasonably in seeking a protective order or other appropriate remedy, at the Disclosing Party’s expense.
13.1 Customer Data Ownership. As between the parties, Customer (and each End Client, as applicable) owns all Customer Data. Customer grants Company a non-exclusive, worldwide, royalty-free license to host, copy, transmit, display, and process Customer Data solely to provide the Platform and as otherwise expressly contemplated by these Terms.
13.2 Security. Company shall maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data.
13.3 Aggregated Data. Company may collect, use, and disclose aggregated, de-identified data derived from Customer’s use of the Platform that does not identify Customer, any Administrator, any Authorized User, or any End Client, for any lawful purpose, including improvement of the Platform.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS, COMPANY AND ITS REPRESENTATIVES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE PLATFORM IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM HARMFUL COMPONENTS, OR THAT MARKET-DATA FEEDS WILL BE ACCURATE, TIMELY, OR COMPLETE. COMPANY MAKES NO WARRANTY THAT USE OF THE PLATFORM WILL ACHIEVE ANY PARTICULAR TAX, FINANCIAL, OR ESTATE-PLANNING OUTCOME.
15 Customer Representations and Warranties
Customer represents and warrants to Company that: (a) prior to initiating any Order and at all times thereafter, a Designated Attorney is involved in the representation of End Client with respect to End Client’s estate planning matters and the Designated Attorney agrees to the use of the Platform with respect to End Client; (b) a Designated Attorney, or an individual acting under the supervision of a Designated Attorney, is responsible for reviewing and approving all Generated Documents before they are finalized or used with any End Client; (c) Customer’s use of the Platform will comply with all applicable laws, rules of professional conduct, and obligations to End Clients; (d) Customer has all necessary rights and authorizations to provide all Customer Data to Company for processing under these Terms; (e) Customer will obtain each End-Client Acknowledgment required by Section 11.1(b); (f) subject to Section 7.3, all Customer Data is and will be accurate, complete, and timely, and Customer will promptly correct any Customer Data that becomes inaccurate or incomplete; (g) Customer understands that the Platform is an adjunct software tool, that Company does not practice law, act as an investment adviser nor provide valuation services, and that Customer will not represent otherwise to any End Client or third party; (h) if Customer is an individual accepting these Terms on behalf of a firm or entity, Customer has authority to bind that firm or entity; and (i) Customer has the authority, and has obtained any consent required from the relevant End Client under applicable law and the applicable rules of professional conduct, to upgrade any Subscribed Entity to the Premium Tier; and (j) for each End Client on whose behalf Customer uses the Platform, Customer has advised the End Client that: (i) the Platform is a tool used by Customer as an adjunct to estate planning services provided to the End Client and is not a substitute for the professional judgment of a licensed attorney; (ii) neither Company nor the Platform provides legal, investment, valuation, financial, or tax advice; and (iii) for any Subscribed Entity enrolled in the Premium Tier, the Performance Fee is the obligation of the End Client.
16.1 Exclusion of Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR ANTICIPATED SAVINGS, ARISING OUT OF OR RELATING TO THESE TERMS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 Cap. EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY IN SUBSCRIPTION FEES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
16.3 Carve-Outs. The exclusions and cap in Sections 16.1 and 16.2 do not apply to: (a) a party’s indemnification obligations under Section 17; (b) Customer’s payment obligations under Sections 6 and 11; (c) a party’s breach of Section 12 (Confidentiality); or (d) liabilities that cannot be limited under applicable law.
17.1 By Company. Company will defend, indemnify, and hold harmless Customer and its officers, directors, employees, and affiliates from and against any third-party claim alleging that the Platform, as provided by Company and used in accordance with these Terms, infringes any U.S. patent, copyright, or trademark or misappropriates any trade secret, except to the extent such claim arises from: (a) modification of the Platform by or on behalf of Customer or any End Client; (b) combination of the Platform with products or technology not furnished by Company, where the claim would not have arisen but for such combination; (c) Customer’s continued use after Company has notified Customer to cease use or provided a non-infringing alternative; (d) Customer’s or any End Client’s instructions, specifications, or requirements that Company followed; or (e) Customer’s breach of these Terms.
17.2 Mitigation. If the Platform becomes, or in Company’s reasonable judgment is likely to become, the subject of an infringement claim, Company may, at its option and expense: (a) procure for Customer the right to continue using the Platform; (b) modify or replace the Platform to be non-infringing while providing materially equivalent functionality; or (c) if neither of the foregoing is commercially reasonable, terminate the affected Subscription Term(s) on written notice and refund a pro-rated portion of any prepaid subscription fees for the unused portion of the then-current Subscription Term.
17.3 By Customer. Customer will defend, indemnify, and hold harmless Company and its officers, directors, employees, affiliates, and licensors from and against any claims arising out of or relating to: (a) Customer’s use of the Platform in breach of these Terms; (b) Customer’s legal, tax, or estate-planning advice or services to any End Client; (c) the accuracy or completeness of Customer Data; (d) Customer’s failure to obtain a required End-Client Acknowledgment; or (e) any claim that Company acted as an investment adviser, broker-dealer, fiduciary, or trustee with respect to any End Client as a result of Customer’s representations or conduct.
17.4 Procedure. The indemnified party shall: (a) promptly notify the indemnifying party of the claim; (b) give the indemnifying party sole control of the defense and settlement, provided that no settlement imposing a non-monetary obligation on the indemnified party requires the indemnified party’s prior written consent, not to be unreasonably withheld; and (c) provide reasonable cooperation at the indemnifying party’s expense.
17.5 Exclusive Remedy. This Section 17 states the indemnifying party’s sole liability and the indemnified party’s exclusive remedy for claims of the type described in this Section.
18 Term; Termination; Suspension
18.1 Term. These Terms commence on the date Customer accepts them and continue until all Subscription Terms have expired or been terminated in accordance with these Terms.
18.2 Termination by Customer. Customer may cancel any Subscription Term by providing notice of non-renewal through the Platform or by written notice to Company at least thirty (30) days before the end of the then-current Subscription Term, in accordance with Section 6.3. All subscription fees for the then-current Subscription Term remain due and are non-refundable.
18.3 Termination for Cause. Either party may terminate these Terms upon written notice if the other party: (a) materially breaches these Terms and fails to cure such breach within thirty (30) days after written notice (or, for payment breaches, within ten (10) days); or (b) becomes insolvent, makes a general assignment for the benefit of creditors, or has a bankruptcy or similar proceeding commenced by or against it that is not dismissed within sixty (60) days.
18.4 Death or Incapacity of End Client. Customer shall promptly notify Company upon learning of the death or Incapacity of any End Client by editing the End Client’s data on the Platform to indicate the End Client is deceased or Incapacitated. Upon indicating on the Platform that an End Client is deceased or Incapacitated, all generation of Generated Documents and use of the Locking Functions related to such End Client will cease and such indication is effective to notify the Company of non-renewal for each Subscribed Entity related to such End Client as contemplated in Section 6.3. Access to the Platform with respect to the affected Subscribed Entity may be terminated or restricted as reasonably required to comply with applicable law. The Performance Fee (if any) shall crystallize as provided in Section 11.2(d).
18.5 Suspension. Company may suspend Customer’s access to the Platform with respect to one or more Subscribed Entities if: (a) Customer’s use poses a security, legal, or operational risk to the Platform or other users; (b) subscription fees are more than thirty (30) days past due; or (c) Company is required to do so by law. Company will use reasonable efforts to provide advance notice when feasible.
18.6 Effect of Termination. Upon expiration or termination: (a) all rights to access and use the Platform cease; (b) Customer shall pay all undisputed subscription fees through the end of the then-current Subscription Term and any crystallized Performance Fees; (c) each party shall return or destroy the other party’s Confidential Information (other than archival copies retained pursuant to reasonable backup and records-retention practices); and (d) Sections 2, 4.4, 6.2, 11.1, 11.2, 11.2(d), 11.2(e), 11.2(f), 12, 13.1, 13.3, 14, 15, 16, 17, 18.6, 18.7, 19, 20, and 21 survive termination.
18.7 Data Export. For thirty (30) days following expiration or termination (other than termination by Company for cause), Customer may access Platform-generated data relating to its Subscribed Entities through the Platform’s interface.
18.8 Data Retention and Deletion. Company has no obligation to retain Customer Data or Generated Documents. Company may delete Customer Data and Generated Documents relating to a Subscribed Entity thirty (30) days after cancellation, non-renewal, or termination of the subscription for that Subscribed Entity, and may delete all data associated with a Customer account that has had no active subscription for six (6) months (after which Customer must re-register to use the Platform). The foregoing deletion rights are reserved and may be exercised in Company’s discretion.
Company may update or modify these Terms from time to time. If Company makes a material change, Company will provide at least thirty (30) days’ prior notice by email to the address associated with Customer’s account or by prominent notice within the Platform. Customer’s continued access to or use of the Platform after the effective date of any updated Terms constitutes Customer’s acceptance of the updated Terms. If Customer does not agree to updated Terms, Customer must stop using the Platform before the effective date of the change and provide timely notice of non-renewal in accordance with Section 6.3. Company will maintain an accessible version history of these Terms at https://grattrack.com/legal/terms/.
20 Governing Law; Dispute Resolution
These Terms are governed by the laws of the State of Oregon, without giving effect to any conflict-of-law principle that would cause the laws of any other jurisdiction to apply. Any dispute, claim, or controversy arising out of or relating to these Terms, or the breach, termination, or validity of these Terms, shall be resolved by final and binding arbitration administered by the American Arbitration Association under its then-current commercial arbitration rules, before a single arbitrator, seated in Multnomah County, Oregon. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. The arbitration, including its existence, the proceedings, and the award, shall be confidential, except as necessary to confirm or enforce the award or as required by law. Each party waives any right to bring or participate in a class, collective, or representative action, and the arbitrator may not consolidate the claims of more than one party or preside over any class or representative proceeding. For any action permitted to be brought in court under these Terms, the state and federal courts in Multnomah County, Oregon have exclusive jurisdiction, and each party irrevocably consents to such exclusive jurisdiction and venue. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to enforce Sections 4.3 (Restrictions) or 12 (Confidentiality) without bond.
These Terms, together with each Order, all Exhibits, and each End-Client Acknowledgment, constitute the entire agreement between the parties regarding the Platform and supersede all prior and contemporaneous agreements, representations, and understandings. If any provision of these Terms is held invalid or unenforceable, such provision will be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of these Terms will remain in full force. Neither party may assign these Terms without the other party’s prior written consent, except that either party may assign these Terms without consent to a successor in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity, on written notice to the other party. Notwithstanding the foregoing, Company may assign, sell, transfer, or pledge its right to receive Performance Fees, in whole or in part, without the consent of Customer or any End Client. Company is not liable for any failure or delay in performance caused by events beyond its reasonable control (excluding payment obligations), including acts of God, war, terrorism, civil unrest, governmental action, labor disputes, internet or telecommunications failures, and outages or errors in third-party market-data feeds. No waiver of any term or condition of these Terms is effective unless in writing signed by the waiving party. Nothing in these Terms confers any rights or remedies on any third party except Company’s rights under Section 11.1(b). Company’s Licensor is an intended third-party beneficiary of these Terms and may enforce them directly against Customer, including the ownership, reservation-of-rights, and springing-license provisions of these Terms.
END-CLIENT ACKNOWLEDGMENT
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End Client (full legal name): _____________________________________ Customer: ___________________________________________ |
Date: ____________________ Designated Attorney: ____________________ |
This End-Client Acknowledgment (this “Acknowledgment”) is delivered by the End Client identified above in connection with the subscription to the GRATtrack platform (the “Platform”) operated by GRATtrack, LLC (“Company”) under the GRATtrack Terms of Service (the “Terms,” available at https://grattrack.com/legal/terms/). Capitalized terms used but not defined in this Acknowledgment have the meanings given in the Terms. With respect to one or more Subscribed Entities, End Client understands that an Administrator may, from time to time, select or upgrade to the Premium Tier and exercise discretion with respect to the Locking Functions, and that this Acknowledgment applies to each such selection or upgrade and Administrator’s exercising of discretion with respect to the Locking Functions. End Client acknowledges and agrees as follows:
1. Receipt, Review and Limited Assent to Terms. End Client acknowledges that End Client has received and reviewed the Terms and has had the opportunity to consult with Customer and End Client’s own legal counsel regarding their meaning and effect. By executing this Acknowledgment, End Client agrees to be bound by the provisions of the Terms that expressly apply to End Client, including the provisions governing the calculation, invoicing, dispute, and payment of the Performance Fee, as though End Client were a party to the Terms solely with respect to such provisions. Except as expressly provided in this Acknowledgment or in a provision of the Terms that expressly applies to End Client, End Client does not assume the obligations of Customer under the Terms.
2. Administrator Authority. End Client acknowledges and agrees that each Administrator with respect to End Client’s Platform account is authorized to act on End Client's behalf with respect to the Platform, including selecting or upgrading a Subscribed Entity to the Premium Tier, exercising discretion with respect to the Locking Functions, selecting auto-lock thresholds, entering, updating, modifying, or correcting Customer Data, generating documents, selecting Administrators and Authorized Users with respect to End Client’s Platform account, and taking any other action available through or contemplated by the Platform. End Client authorizes Company to rely conclusively upon, and agrees to be bound by, any instruction, election, approval, authorization, or other action taken by an Administrator through or in connection with the Platform as though taken directly by End Client. End Client ratifies and approves all such actions taken by an Administrator with respect to End Client’s Platform account. Company shall have no duty to investigate or verify an Administrator's authority or determine whether any such action is consistent with End Client's instructions, objectives, or planning strategy.
3. Performance Fee. The Performance Fee is the obligation of End Client and will be invoiced directly to End Client or, as applicable, End Client’s estate, trust, personal representative, or successor. For each Subscribed Entity enrolled in the Premium Tier, the Performance Fee will be calculated and invoiced in accordance with Section 11.2 of the Terms, including the definitions, cumulative calculation methodology, Applicable Percentage tiers, measurement dates, crystallization events, data conventions, and dispute procedures set forth therein. End Client acknowledges that the Performance Fee may include value attributable to assets treated as Locked and Deemed Transferred as of the applicable Lock Date, notwithstanding that such assets have not actually been transferred to the applicable remainder beneficiary or remainder trust as of the applicable measurement date. End Client agrees to pay each Performance Fee when due under the Terms. Company may assign, sell, transfer, or pledge its right to receive the Performance Fee, in whole or in part, without End Client’s consent, and any assignee or transferee may enforce that right directly against End Client (or End Client’s estate, trust, or successor).
4. Reliance on Entered Data; No Responsibility for Accuracy. The Platform does not integrate with, and does not retrieve data from, any brokerage, custodian, bank, investment, or other financial accounts of or on behalf of any End Client. All holdings of the Subscribed Entity must be entered manually by an Administrator, and all calculations, notifications, and outputs generated by the Platform are based solely on Customer Data as entered and on end-of-day pricing, and not on real-time or intraday data. An Administrator is solely responsible for the accuracy, completeness, and timeliness of all Customer Data, including the prompt entry of any change in the composition of the holdings of the Subscribed Entity. Inaccurate, incomplete, or stale Customer Data will produce inaccurate Platform outputs, and Company has no obligation to verify, and expressly disclaims any responsibility for, the accuracy of Customer Data. Company does not warrant the accuracy, completeness, or timeliness of third-party market-data feeds and is not liable for errors, omissions, latency, or interruptions in market data.
5. Dividends. The Platform calculates the dividends paid on holdings but does not calculate the returns earned on cash held in an interest-bearing account or the actual purchase price of shares acquired under a dividend reinvestment plan (“DRIP”). The Platform will calculate such returns only to the extent the user periodically updates the applicable holdings to reflect the purchase price of shares acquired under the DRIP or the actual cash position, including any interest accrued thereon.
6. No Legal, Investment, Valuation or Tax Advice; No Adviser Relationship. End Client has engaged a licensed attorney for legal services in connection with one or more grantor retained annuity trusts (“GRATs”). End Client acknowledges and agrees that: (a) the Platform is a software tool designed to be used as an adjunct to, and not a substitute for, the professional judgment of licensed attorneys, and Company does not practice law and the Platform does not provide legal advice; (b) Company does not act as an investment adviser, broker-dealer, or financial planner, the Platform does not provide investment, financial, or tax advice, and Company is not registered as an investment adviser under the Investment Advisers Act of 1940 or any state analog; (c) the Platform is a non-discretionary software tool that executes calculations and generates notifications and outputs based solely on parameters defined by an Administrator, and Company does not exercise discretion or trading authority over any End Client account or portfolio, does not direct, place, or execute any trade, and does not provide personalized investment advice or recommendations; (d) nothing in the Terms or in the operation of the Platform establishes an investment adviser, broker-dealer, fiduciary, trustee, or similar relationship between Company and any Customer or any End Client; and (e) a licensed attorney is solely responsible for determining the suitability of any GRAT strategy for End Client, for compliance with the Internal Revenue Code, applicable Treasury regulations, and any state law affecting each GRAT, for the drafting, execution, funding, and administration of each GRAT, for the timely filing of all required gift tax and other returns, and for all legal advice and client communications. No calculation, Performance Fee statement, valuation-related output, or other output of the Platform constitutes or may be relied upon as an appraisal, valuation opinion, fair market value determination, tax opinion, legal opinion, accounting advice, investment advice, fiduciary advice, or other professional advice.
7. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE TERMS, COMPANY AND ITS REPRESENTATIVES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE PLATFORM IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM HARMFUL COMPONENTS, OR THAT MARKET-DATA FEEDS WILL BE ACCURATE, TIMELY, OR COMPLETE. COMPANY MAKES NO WARRANTY THAT USE OF THE PLATFORM WILL ACHIEVE ANY PARTICULAR TAX, FINANCIAL, OR ESTATE-PLANNING OUTCOME.
8. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR END CLIENT SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR ANTICIPATED SAVINGS, ARISING OUT OF OR RELATING TO THE PLATFORM OR THIS ACKNOWLEDGMENT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL CUMULATIVE LIABILITY TO END CLIENT ARISING OUT OF OR RELATING TO THE PLATFORM OR THIS ACKNOWLEDGMENT SHALL NOT EXCEED THE GREATER OF (I) THE TOTAL PERFORMANCE FEES ACTUALLY PAID BY END CLIENT TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY AND (II) $3,500. THE FOREGOING EXCLUSION AND CAP DO NOT APPLY TO END CLIENT’S OBLIGATION TO PAY THE PERFORMANCE FEE OR TO LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
9. Information Sharing. Company uses the End Client's contact and billing information to invoice and collect the Performance Fee. Company's collection and use of that information is described in Company's Privacy Policy, available at https://grattrack.com/legal/terms/, and End Client may direct privacy requests regarding that information to Company. End Client consents to the sharing between all Authorized Users associated with End Client’s Platform account and Company of all information necessary to compute and bill the Performance Fee, authorizes all Authorized Users associated with End Client’s Platform account to provide that information to Company, and authorizes any Authorized User associated with End Client’s Platform account to deliver this executed Acknowledgment to Company.
10. Third-Party Beneficiary; Successors. Company is an intended third-party beneficiary of this Acknowledgment and may enforce its terms (including the obligation to pay the Performance Fee) directly against End Client and against End Client’s estate, trust, or successor. This Acknowledgment binds End Client and End Client’s heirs, executors, administrators, personal representatives, trusts, estates, and successors.
11. Governing Law; Counterparts. This Acknowledgment is governed by the laws of the State of Oregon, without giving effect to any conflict-of-law principle that would cause the laws of any other jurisdiction to apply. Any dispute, claim, or controversy arising out of or relating to this Acknowledgment, or the breach, termination, or validity of this Acknowledgment, shall be resolved by final and binding arbitration administered by the American Arbitration Association under its then-current commercial arbitration rules, before a single arbitrator, seated in Multnomah County, Oregon. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. The arbitration, including its existence, the proceedings, and the award, shall be confidential, except as necessary to confirm or enforce the award or as required by law. Each party waives any right to bring or participate in a class, collective, or representative action. For any action permitted to be brought in court, the state and federal courts in Multnomah County, Oregon have exclusive jurisdiction, and each party irrevocably consents to such exclusive jurisdiction and venue. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY ACTION ARISING OUT OF OR RELATING TO THIS ACKNOWLEDGMENT. This Acknowledgment may be signed in counterparts, including by electronic signature (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000), each of which is an original and all of which together constitute one instrument.
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END CLIENT:
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GRATtrack Terms of Service
Exhibit B
Illustrative Examples of Performance Fee Calculation. The following examples are provided solely to illustrate the application of the Performance Fee calculation and do not modify the definitions or operative provisions of Section 11.2. In the event of any conflict between these examples and the definitions or operative provisions of this Section 11.2, the definitions and operative provisions shall control. All values, dates, and assumptions in the examples below are hypothetical and are used solely to illustrate the Performance Fee calculation.
Example 1 — Lock Date, New GRAT Creation, and Inclusion of Locked and Deemed Transferred Assets.
Assume that the Service Activation Date for a Subscribed Entity is January 1, 2027, and that the Subscribed Entity is enrolled in the Premium Tier. The first Measurement Period ends on January 1, 2029, the second anniversary of the Service Activation Date.
Assume that GRAT 1 is funded on January 1, 2027. On September 1, 2027, GRAT 1 is locked. For purposes of calculating the Performance Fee, the value attributable to GRAT 1 is treated as Locked and Deemed Transferred as of the September 1, 2027 Lock Date, even though the applicable assets are valued by reference to GRAT 1’s Termination Date of January 1, 2029. Assume that the value of the promissory note held by GRAT 1 as of its Termination Date, after taking into account accrued but unpaid interest and assumed in-kind annuity payments, is $1,200,000.
Upon the September 1, 2027 lock of GRAT 1, a new GRAT associated with the same Subscribed Entity, GRAT 2, is created as of September 1, 2027. GRAT 2’s Termination Date is September 1, 2029. On July 1, 2028, GRAT 2 is locked. For purposes of calculating the Performance Fee, the value attributable to GRAT 2 is treated as Locked and Deemed Transferred as of the July 1, 2028 Lock Date, even though the applicable assets are valued by reference to GRAT 2’s Termination Date of September 1, 2029. Assume that the value of the promissory note held by GRAT 2 as of its Termination Date, after taking into account accrued but unpaid interest and assumed in-kind annuity payments, is $900,000.
Upon the July 1, 2028 lock of GRAT 2, a new GRAT associated with the same Subscribed Entity, GRAT 3, is created as of July 1, 2028. Assume that GRAT 3 has not locked and has not terminated as of the January 1, 2029 measurement date. Accordingly, no Lock Functionality Remainder Value attributable to GRAT 3 is included as of the January 1, 2029 measurement date, except to the extent otherwise included under the definitions and operative provisions of Section 11.2.
Accordingly, as of the January 1, 2029 measurement date, the cumulative Lock Functionality Remainder Value is calculated as follows:
GRAT 1 Locked and Deemed Transferred value: $1,200,000
GRAT 2 Locked and Deemed Transferred value: $900,000
Cumulative Lock Functionality Remainder Value: $2,100,000
Assume that, as of the same measurement date, the cumulative Baseline Outcome for the Subscribed Entity is $1,150,000. The Performance Difference is therefore:
$2,100,000 cumulative Lock Functionality Remainder Value
minus $1,150,000 cumulative Baseline Outcome
equals $950,000 Performance Difference.
Because this is the first Measurement Period, the Prior Assessed Value is $0. The Assessed Value for the first Measurement Period is therefore $950,000, and the Total Assessed Value is $950,000.
Applying the Applicable Percentage, the Performance Fee for the first Measurement Period is:
$950,000 × 1.50% = $14,250.
Example 2 — Successive Locks and Cumulative Calculation.
Assume the same facts as in Example 1. The Prior Assessed Value after the first Measurement Period is $950,000.
Assume that, after the January 1, 2029 measurement date, GRAT 3 continues to be administered through the Platform. On April 1, 2029, GRAT 3 is locked. Upon the April 1, 2029 lock of GRAT 3, a new GRAT associated with the same Subscribed Entity, GRAT 4, is created as of April 1, 2029. For purposes of calculating the Performance Fee, the value attributable to GRAT 3 is treated as Locked and Deemed Transferred as of the April 1, 2029 Lock Date, even though the applicable assets are valued by reference to GRAT 3’s Termination Date of July 1, 2030.
Assume that, as of the next annual measurement date, January 1, 2030, the cumulative Lock Functionality Remainder Value for the Subscribed Entity is $7,000,000 and the cumulative Baseline Outcome for the Subscribed Entity is $2,000,000. The cumulative Performance Difference is therefore:
$7,000,000 cumulative Lock Functionality Remainder Value
minus $2,000,000 cumulative Baseline Outcome
equals $5,000,000 Performance Difference.
Because the Prior Assessed Value is $950,000, the Assessed Value for the current Measurement Period is:
$5,000,000 Performance Difference
minus $950,000 Prior Assessed Value
equals $4,050,000 Assessed Value.
The Total Assessed Value is $5,000,000. The Performance Fee for the current Measurement Period is calculated by applying the Applicable Percentage on a marginal basis to the Total Assessed Value and subtracting the amount that would have been payable by applying the Applicable Percentage on a marginal basis to the Prior Assessed Value.
Fee on Total Assessed Value of $5,000,000:
First $2,000,000 × 1.50% = $30,000
Next $3,000,000 × 1.25% = $37,500
Total fee on Total Assessed Value: $67,500
Fee on Prior Assessed Value of $950,000:
$950,000 × 1.50% = $14,250
Performance Fee for current Measurement Period:
$67,500 fee on Total Assessed Value
minus $14,250 fee on Prior Assessed Value
equals $53,250.
Example 3 — No Additional Performance Fee if Cumulative Performance Difference Does Not Increase.
Assume the same facts as in Examples 1 and 2. The Prior Assessed Value after the second Measurement Period is $5,000,000.
Assume that, as of the next annual measurement date, January 1, 2031, the cumulative Lock Functionality Remainder Value for the Subscribed Entity is $7,500,000 and the cumulative Baseline Outcome for the Subscribed Entity is $3,000,000. The cumulative Performance Difference is therefore:
$7,500,000 cumulative Lock Functionality Remainder Value
minus $3,000,000 cumulative Baseline Outcome
equals $4,500,000 Performance Difference.
Because the cumulative Performance Difference of $4,500,000 does not exceed the Prior Assessed Value of $5,000,000, the Assessed Value for the current Measurement Period is $0. Accordingly, no additional Performance Fee is payable for that Measurement Period.
For the avoidance of doubt, a decrease in the cumulative Performance Difference does not result in a negative Performance Fee, refund, rebate, or credit.
Example 4 — Crystallization Before the Next Annual Invoice Date.
Assume the same facts as in Examples 1 and 2, except that the Premium Tier subscription for the applicable Subscribed Entity is cancelled effective June 30, 2030, before the next annual measurement date. For purposes of clarity, such Subscribed Entity did not downgrade to Base Tier (which downgrade would be effective for such Subscribed Entity as of the next annual renewal date, January 1, 2031), but cancelled Platform use with respect to such Subscribed Entity. In that case, the Measurement Period ends on June 30, 2030, and the Performance Fee is calculated as of that date, subject to the treatment of Locked and Deemed Transferred assets under the definition of Lock Functionality Remainder Value.
Assume that, as of June 30, 2030, the cumulative Lock Functionality Remainder Value is $8,000,000 and the cumulative Baseline Outcome is $2,500,000. The cumulative Performance Difference is therefore:
$8,000,000 cumulative Lock Functionality Remainder Value
minus $2,500,000 cumulative Baseline Outcome
equals $5,500,000 Performance Difference.
Because the Prior Assessed Value is $5,000,000, the Assessed Value for the partial Measurement Period ending June 30, 2030 is:
$5,500,000 Performance Difference
minus $5,000,000 Prior Assessed Value
equals $500,000 Assessed Value.
The Total Assessed Value is $5,500,000. The Performance Fee for the partial Measurement Period is calculated by applying the Applicable Percentage on a marginal basis to the Total Assessed Value and subtracting the amount that would have been payable by applying the Applicable Percentage on a marginal basis to the Prior Assessed Value.
Fee on Total Assessed Value of $5,500,000:
First $2,000,000 × 1.50% = $30,000
Next $3,500,000 × 1.25% = $43,750
Total fee on Total Assessed Value: $73,750
Fee on Prior Assessed Value of $5,000,000:
First $2,000,000 × 1.50% = $30,000
Next $3,000,000 × 1.25% = $37,500
Total fee on Prior Assessed Value: $67,500
Performance Fee for partial Measurement Period:
$73,750 fee on Total Assessed Value
minus $67,500 fee on Prior Assessed Value
equals $6,250.