I am entering into this legally binding Participation Agreement (“Agreement”) with the Board in order to establish an ABLE Account in the Plan. I am legally competent and over the age of 18. I understand that amounts contributed to my ABLE Account will be used to acquire Units of interest in one or more portfolios of the Trust established by the Board to hold assets of the Portfolio Options offered by the Plan. I understand and agree that this Agreement is subject to the Plan Disclosure Booklet. I understand that all of the information in the Plan Disclosure Booklet and in my completed ABLE Account Application are part of this Agreement. I understand that by enrolling in the Plan I have accepted the terms of the Plan Disclosure Booklet and this Agreement. The effective date of this Agreement is the date my signed ABLE Account Application is submitted to the Plan online or by mail and accepted by the Plan.
Each capitalized term used in this Agreement has the meaning set forth in the Plan Disclosure Booklet, and such meanings are incorporated into this Agreement and made a part of this Agreement as if they were set forth in the body of this Agreement.
For purposes of this Agreement, “I” or “me” or “my” shall refer to the Beneficiary or his or her Authorized Legal Representative to the extent permitted by the Plan Disclosure Booklet. “Service Providers” means the Plan Manager, the Investment Advisor, and the Custodian.
A. Agreements, Representations, and Warranties of the Beneficiary
I hereby agree with, and represent and warrant to the Board, the Service Providers, and their respective successor and assigns, as follows:
- I have received, read, and I understand the Plan Disclosure Booklet as currently in effect. I have been given the opportunity to obtain answers to all of my questions concerning the Plan, my ABLE Account, and this Agreement. I acknowledge that there have been no representations or other information about the Plan relied upon in entering into this Agreement, whether oral or written, other than as set forth in the Plan Disclosure Booklet and this Agreement.
- I have accurately and truthfully completed the ABLE Account Application, and any other documentation that I have furnished in connection with the opening of, and will accurately and truthfully complete any documentation that I furnish in connection with the maintenance of, or any withdrawals from, my ABLE Account is, and all such documentation is or at the time it is provided will be accurate, truthful, and complete, including my status as an Eligible Individual.
- If I make false statements in connection with opening an ABLE Account or otherwise, the Board and/or the Plan Manager may take such action as the Board and/or the Plan Manager deem necessary or appropriate, including, without limitation, terminating my ABLE Account or requiring that I indemnify the Board and/or each of the Service Providers, and their respective affiliates and agents as discussed under “Indemnity” below. I understand that I may face criminal or civil penalties for making false statements under applicable law.
- I certify that I am opening this ABLE Account in order to provide funds for the Qualified Disability Expenses of the Beneficiary and I understand that this Agreement constitutes the legal, valid, and binding obligation of the Beneficiary.
- By opening an ABLE Account I am consenting to receive emails from the Board or its designee about the Plan and my ABLE Account. I understand that I may unsubscribe from emails about the Plan at any time. I also understand that even if I unsubscribe from emails about the Plan, the Board reserves the right to send me administrative emails regarding my ABLE Account or as otherwise permitted by law.
- As of the date that I execute my ABLE Account Application, I do not have another ABLE account in the Plan or any other qualified ABLE program established under Section 529A of the Code. I will not knowingly make Contributions to my ABLE Account (or direct others to make Contributions to my ABLE Account) now or in the future that (a) will cause the Contributions made to my ABLE Account to exceed the Annual Contribution Limit in any given year, or (b) the aggregate balance of the ABLE Account to exceed the Lifetime Account Limit then in effect for my ABLE Account.
- I recognize that the investment of contributions and earnings, if any, in my ABLE Account involves certain risks, and I have taken into consideration and understand the risk factors related to these investments, including, but not limited to, those set forth in the Plan Disclosure Booklet.
- If I am an Authorized Legal Representative acting on behalf of a Beneficiary, I understand that each time I make a withdrawal from the ABLE Account I am deemed to be certifying that: the withdrawal is duly authorized under all applicable law and any governing documents that apply to the ABLE Account, and is for the benefit of the Beneficiary and not for my own personal benefit or for the benefit of a third person.
- With respect to each Investment Option, I understand and agree that neither contributions to, nor earnings, if any, on my ABLE Account are guaranteed or insured by the FDIC, or any person or entity, including but not limited to, the State of Oregon, the Board, the Network, the Service Providers, or their respective affiliates, agents, employees, officers, directors, representatives, or successors. I understand and agree that there is no guarantee that the Investment Options or the underlying Mutual Funds’ investment objectives will be achieved. I understand that none of the State of Oregon, the Board, the Network, the Service Providers, any of their respective affiliates, or any other person or entity are providing any assurances that I will not suffer a loss of any amount invested in my ABLE Account, or making assurances that I will receive a particular return on any amount in my ABLE Account. I understand that the Portfolio Options in the Plan are not debts, liabilities, or obligations of the State of Oregon or any political subdivision thereof, including without limitation the Board or the Network, nor shall they be deemed to constitute a pledge of the taxing power or the full faith and credit of the State of Oregon or any political subdivision thereof.
- I understand and agree that federal and state laws are subject to change, sometimes with retroactive effect, and the State of Oregon, the Board, the Network, the Service Providers and their respective affiliates are not making any representation that such federal or state laws will not be changed or repealed. I understand and agree that such changes could have a negative effect on my ABLE Account.
- I understand and agree that with respect to each Portfolio Option in the Plan, there is no guarantee or commitment whatsoever from the State of Oregon, the Board, the Network, the Service Providers, or any other person or entity that: contributions and investment returns, if any, in my ABLE Account will be sufficient to cover the Qualified Disability Expenses of the Beneficiary.
- I understand that Sumday and the other Service Providers will not necessarily continue in their roles for the entire period my ABLE Account is open and that the Board may retain in the future additional and/or different Service Providers for the Plan. I acknowledge that if this occurs, or even if it does not, there is no assurance that I would not experience a material change to the terms and conditions of the current Agreement, including to the Portfolio Options offered by the Plan, services provided, and the fees and expenses of the Plan.
- I understand and agree that I have not been advised by the State of Oregon, the Board, the Network, any other agency or instrumentality of the State of Oregon, the Service Providers or any of their respective affiliates or any agents or representatives retained in connection with the Plan to invest, or to refrain from investing, in a particular Portfolio Option. I understand and acknowledge that none of the State of Oregon, the Board, the Network, any other agency or instrumentality of the State of Oregon, the Service Providers or any of their respective affiliates or any agents or representatives retained in connection with the Plan are providing me with any investment advice.
- I understand and agree that the Trust is the record owner of the shares of any underlying Mutual Funds in which an Investment Option is invested, that my ABLE Account will not own any such shares and that I will have no right to vote, or direct the voting of, any proxy with respect to such shares.
- I understand the following regarding the duties of the Board and the Network: neither the Board nor the Network nor their representatives have any duty to me to perform any action other than those specified in this Agreement or the Plan Disclosure Booklet. The Board and the Network may accept and rely conclusively on any instructions or other communications reasonably believed to have been given by me or another authorized person, and may assume that the authority of any other authorized person continues in effect until the Board receives written notice to the contrary. Neither the Board nor the Network have any duty to determine or advise me of the investment, tax, or other consequences of my actions, or of its actions in following my directions, or of its failing to act in the absence of my directions. My ABLE Account and this Agreement are subject to the rules and regulations as the Board may promulgate in accordance with Oregon law. All decisions and interpretations by the Board in connection with the Plan shall be final and binding on the Beneficiary and any successors.
- I understand the following regarding the duties of the Plan Manager and other Service Providers: neither the Plan Manager nor any other Service Provider nor any of their respective affiliates or agents have a duty to perform any actions, other than those specified in the Plan Disclosure Booklet and this Agreement. The Plan Manager may accept and rely conclusively on any instructions or other communications reasonably believed to have been given by me or another authorized person and may assume that the authority of any other authorized person continues in effect until the Plan Manager receives written notice to the contrary. The Plan Manager and the other Service Providers have no duty to determine or advise me of the investment, tax, or other consequences of my actions, or of their actions in following my directions, or of their failing to act in the absence of my directions.
- I understand that so long as the Plan Manager and Service Providers are engaged by the Board to perform services for the Plan, the Plan Manager and Service Providers may follow the directives of the Board. When acting in such capacity, the Plan Manager and Service Providers shall have no liability to the Beneficiary of or to the Authorized Legal Representative for an ABLE Account or any other person.
- I understand that Non-Qualified Withdrawals will be subject to federal and state income taxes and potential tax penalties.
- I acknowledge and agree to the fees, charges, or penalties applicable to my ABLE Account, and understand that they may change in the future.
- I understand that the Plan is intended to be a “qualified ABLE program” under Section 529A and the Plan is intended to receive favorable federal and, if available under applicable state law as a result of its status as a “qualified ABLE program”, state tax treatment. I agree that the State of Oregon and the Board may make changes to the Plan, this Agreement, and the Plan Disclosure Booklet at any time, including without limitation, if it is determined that such changes are necessary for the continuation of the federal income tax treatment provided by Section 529A of the Code or any favorable state tax treatment provided by state law or any similar successor legislation.
B. Statutes, Policies, and Operating Procedures
My ABLE Account and this Agreement are subject to, and incorporate by reference, the Oregon Act, any regulations, policies and operating procedures adopted for the Plan by the State of Oregon or the Board, any amendments to the Oregon Act, other applicable statutes or policies and operating procedures, and any rules or regulations as the State of Oregon or the Board may promulgate in accordance with state law. Any amendments to relevant statutes or regulations automatically amend this Agreement and any amendments to policies or operating procedures shall amend this Agreement and any amendments shall become effective no later than the effective date of the applicable law or regulation or change in policy or operating procedures.
I understand that the establishment of my ABLE Account will be based upon the agreements, representations, and warranties set forth in this Agreement. I agree to indemnify and hold harmless each of the State of Oregon, its agencies or instrumentalities, including the Board, the Network and the Trust, the Service Providers and their respective affiliates, agents, representatives, or successors of any of the foregoing, from and against any and all loss, damage, liability, or expense, including reasonable attorneys’ fees, that any of them may incur by reason of, or in connection with, any misstatement or misrepresentation made by me in this Agreement or otherwise with respect to my ABLE Account, and any breach by me of any of the agreements, representations, or warranties contained in this Agreement. All of my agreements, representations and warranties shall survive the termination of this Agreement.
D. Complaint Resolution Process
Should a dispute arise out of this Agreement, the Beneficiary should first contact the Plan Manager to attempt resolution within 60 days of the dispute arising. The Beneficiary and the Plan Manager shall first attempt to resolve it through direct discussions in a spirit of mutual cooperation. The parties hereby establish the following out of court alternate dispute resolution procedure to be followed in the event of certain controversies or disputes involving my ABLE Account or this Agreement that may arise between (a) an Authorized Legal Representative and/or Beneficiary and (b) the Plan Manager, the Investment Advisor and/or the Custodian, or their respective affiliates, officers, directors, employees and agents (collectively, the “Plan Parties”). If a dispute develops between an Authorized Legal Representative and the Plan Parties or between the Beneficiary and the Plan Parties related to the Beneficiary’s ABLE Account transactions or other administrative matters involving an ABLE Account, then the parties will submit to non binding mediation to address the dispute. The parties will mutually determine the location, date, duration, and process for any such mediation effort and be bound by the terms and conditions as set forth in any settlement agreement that is executed following the mediation. Adjudication of any controversies between a Beneficiary and the Plan Parties that cannot be resolved through the mediation process described above shall be heard in a court of law. Some controversies between the parties may involve claims that are owned by the Board or the Trust and can only be brought by the Board or the Trust. This provision is not intended to cover such claims.
E. Amendment and Termination
Subject to certain limitations, and except as otherwise provided herein, the Board may, at any time, and from time to time, amend this Agreement or the Plan Disclosure Booklet, or suspend or terminate this Agreement and the Plan, by giving written notice of such action to the Beneficiary, but my ABLE Account assets may not thereby be diverted from the exclusive benefit of the Beneficiary except as permitted by applicable law. Nothing contained in this Agreement or the Plan Disclosure Booklet shall constitute an agreement or representation by the Board, on its own behalf or on behalf of the Plan Manager, that it will continue to maintain the Plan indefinitely. If the Plan is terminated, the balance of an ABLE Account will be paid to the Beneficiary, to the extent possible, and any unclaimed assets shall be delivered by the Board in accordance with any applicable law. If an ABLE Account has not been closed and the ABLE Account is presumed abandoned by applicable law and regulations, the Board, after making reasonable efforts to contact the Authorized Legal Representative and/or the Beneficiary or their agents, shall report the unclaimed money in the ABLE Account to the extent required by any applicable law.
- Binding Nature; Third-Party Beneficiary. The Plan, the Network, the Trust, and the Service Providers are third-party beneficiaries of the agreements, representations, and warranties in this Agreement. This Agreement shall survive the death of any individual Beneficiary and shall be binding upon any executors or administrators, as applicable.
- Severability. If any provision of this Agreement or the Plan Disclosure Booklet is held to be invalid, illegal, void, or unenforceable, by reason of any law, rule, or administrative order, or by judicial decision, such determination will not affect the validity of the remaining provisions of this Agreement.
- Headings. The heading of each section, paragraph, and provision in this Agreement is for descriptive purposes only and shall not be deemed to modify or qualify any of the rights or obligations set forth in each such section, paragraph and provision.
- Governing Law. This Agreement shall be construed in accordance with and shall be governed by the laws of the State of Oregon, without regard to choice of law rules of any state. The Beneficiary’s or Authorized Legal Representative’s execution of the ABLE Account Application shall constitute execution and adoption of this Agreement.