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100-IH (Rev. 3/2019) (2/2020) ©2020 Ascensus, LLC
the note is such that it is subject to an amortization schedule,
valuation may be shown at amortized value. We are not responsible
for the timeliness or the accuracy of the fair market value for any
investment, and shall have no responsibility or liability for acting on
a fair market value so provided, or the last fair market value utilized
if none is provided, or for the accuracy of a Required Minimum
Distribution (“RMD”) calculated upon either such value. If we are
required to obtain a fair market value for an investment due to a
court order or similar circumstance, we may obtain an appraisal
from an independent third party, paying the cost for said appraisal
from the liquid investments held in the account, or in the alternative
after having first received the cost of the appraisal from you or your
beneficiary if liquid investments in the account are otherwise
insufficient. You, and upon your death, your beneficiary agree to
indemnify us and hold us harmless from and against all losses,
expenses, settlements or claims with regard to investment
decisions, distribution values, tax reporting or any other financial
impact or consequence relating to or arising from the valuation of
assets in the account.
8.17 Restrictions on the Fund – Neither you nor any successor beneficiary
may sell, transfer, or pledge any interest in your inherited IRA in any
manner whatsoever, except as provided by law or this agreement.
The assets in your inherited IRA will not be responsible for the
debts, contracts, or torts of any person entitled to distributions
under this agreement.
8.18 What Law Applies – This Agreement is subject to all applicable
Federal and State laws and regulations. You agree that where state
law applies, Kansas law will govern this instrument, any other
instrument executed in connection with your account, and you,
your agent and our respective rights and obligations hereunder or
otherwise with respect to the account and assets. This document
and any other document executed in connection with your account
does not become effective until a signed copy has been received
and accepted by us in the State of Kansas (the taking of action by us
of any authorization will constitute our acceptance). We will have
the right to refuse to accept and to not act upon, any instruction or
direction given by you or your agent, provided that we promptly
notify you or your agent of such election and refusal. You
acknowledge and understand that all of our duties and undertakings
will be carried out in the State of Kansas, and agree that any claims
or disputes that arise in connection with your account or any assets
or any transaction requested by you or your agent must be brought
in arbitration as described in Section 8.21 below. If it is necessary to
apply any State law to interpret and administer this Agreement, the
law of Kansas will govern. If any part of this Agreement is held to be
illegal or invalid, the remaining parts will not be affected. Neither
party’s failure to enforce at any time or for any period of time any
of the provisions of this Agreement will be construed as a waiver of
such provisions, nor a waiver of either party’s right thereafter to
enforce each and every provision.
8.19 Indemnity of Custodian – To the extent not prohibited by Federal
or State law, you agree to indemnify, defend and hold us, our
subsidiaries and affiliates (including officers, agents and employees)
harmless against and from any and all claims, demands, liabilities,
costs and expenses (including reasonable attorneys’ fees and
expenses), arising in connection with this agreement, with respect
to: any negligence or alleged negligence, whether passive or active,
by us, our subsidiaries or affiliates (including officers, agents and
employees); any breach or alleged breach, whether passive or
active, by us, our subsidiaries or affiliates (including officers, agents
and employees) of any responsibilities under this Agreement; any
breach or alleged breach, whether passive or active, by a third party
of responsibilities under this Agreement; or any claim arising out of
the purchase, holding or sale of any investments in the IRA,
whether directed by you or any agent appointed by you. You
further agree to pay for our defense and the defense of our
subsidiaries and affiliates (including officers, agents and employees)
by independent counsel of our choice against any such claims,
demands, liabilities or costs referred to above.
You agree to indemnify, defend and hold us, our subsidiaries and
affiliates (including officers, agents and employees) harmless
against and from any and all payments or assessments which may
result from holding any publicly-traded security or any nonstandard,
non-publicly traded or illiquid investment within the IRA account,
and further agree that we and our subsidiaries and affiliates
(including officers, agents and employees) shall be under no
obligation whatsoever to extend credit or otherwise disburse
payment beyond the cash balance of your account for any payment
or assessment related to such investment(s).
8.20 Adverse Claims – If we receive any claim to the assets held in the
IRA which is adverse to your interest or the interest of your
beneficiary, and we in our absolute discretion decide that the claim
is, or may be meritorious, we may withhold distribution until the
claim is resolved or until instructed by a court of competent
jurisdiction. As an alternative, we may deposit all or any portion of
the assets in the IRA into the court through a motion of interpleader.
Deposit with the court shall relieve us of any further obligation with
respect to the assets deposited. We have the right to be reimbursed
from the funds deposited for our legal fees and costs incurred.
8.21 Inherited IRA Not Guaranteed – We do not guarantee the inherited
IRA from loss or depreciation. Our liability to make payment to you
at any time and all times is limited to the available assets of the
inherited IRA.
8.22 Arbitration of Claims – ARBITRATION OF DISPUTES. PLEASE READ
THIS ARBITRATION PROVISION CAREFULLY. IT PROVIDES THAT ANY
CONTROVERSY OR DISPUTE BE RESOLVED BY BINDING ARBITRATION.
ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING
THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS
ACTION OR SIMILAR PROCEEDING.
Agreement to arbitrate. You and we agree that either you or we
may, without the other’s consent, require that any Claims between
you and us be submitted to mandatory, binding arbitration except
for certain matters excluded below. This arbitration provision is
made pursuant to a transaction involving interstate commerce, and
will be governed by, and enforceable under, the Federal Arbitration
Act (the “FAA”), 9 U.S.C. § 1 et seq., and (to the extent State law is
applicable), the State law governing this transaction.
Claims subject to Arbitration include, but are not limited to: Any
controversy arising out of or relating to this Agreement or the
breach thereof, or to the inherited IRA or any transactions authorized
by you and/or your agent.
Arbitration location, finality, procedures, waiver of jury trial,
class action or any representative action. Arbitration will occur in
Johnson County, Kansas according to the rules of The American
Arbitration Association. Arbitration is final and binding on the
parties. The Parties are waiving their right to seek remedies in
court, including the right to jury trial. Claims made as part of a class
action or other representative action, and the arbitration of such
Claims must proceed on an individual (non-class, non-
representative) basis. If you or we require arbitration of a particular
Claim, neither you, we, nor any other person may pursue the Claim
in any litigation, whether as a class action, private attorney general
action, other representative action or otherwise. Pre-arbitration
discovery is generally more limited than and different from court
proceedings. If any portion of this arbitration provision is deemed
invalid or unenforceable, the remaining portions will nevertheless
remain in force.