SUMMARY OF CUSTOMER AGREEMENT
You agree that you have read, understand and agree to the terms of this Agreement. You agree to sign the Agreement and return it to Cales Investments Inc. ("Cales") within fifteen (15) days from the time your Account is opened. If you do not sign and return the Agreement, we may deactivate your Account and your access to it. All debts and obligation owned in your Account will remain your sole obligation and will be secured by a lien on all securities and property now or hereafter held, carried or maintained in any present or future Accounts with Cales and or Emmett A. Larkin Company, Inc. ("Larkin"), whether individually or jointly held with others, or any Accounts held by Cales or Larkin in which you have an interest. You also acknowledge and agree that we may monitor and/or electronically record your telephone conversations conducted with us and your use of Cales. You acknowledge that we do not give legal or tax advice, and will not advise you concerning the nature, potential value, or suitability of any particular security, transaction or investment strategy.
You understand that Cales is not acting as an agent of Larkin and you will in no way hold, or seek to hold, Cales, Larkin or any division, officer, director or agent thereof liable for any trading losses or other losses incurred by you. Larkin is carrying your Account as clearing broker pursuant to a clearing agreement with Cales. Until receipt from you of written notice to the contrary, Larkin may accept from Cales, without inquiry or investigation: (i) order(s) for the purchase or sale of securities and other property on margin or otherwise; and (ii) any other instructions concerning said Account. Notices to you concerning margin requirements or other matters related to your Account usually will be sent to you through Cales; although notice may be sent directly from Larkin to you with or without duplicate notice to Cales if market conditions or time constraints so require, or if Larkin determines, in its sole discretion, that other circumstances so require. You understand and agree that any rights either Larkin or Cales has under this Agreement may be exercised by either Larkin or Cales or may be assigned to the other, including, but not limited to, the right to collect any debt balance or other obligations owing in your Account and that Larkin and Cales may collect from you or enforce any other rights under this Agreement independently or jointly.
This is a copy of the Customer Agreement ("Agreement"), with Cales Investments Inc. ("Cales"), and Emmett A. Larkin Company, Inc. ("Larkin") entered into by the account holder(s) ("you" or "your") with Cales and Larkin (as used in this Agreement, "we," "us," "our," or "ours," means Cales and/or Larkin). After opening an Account (as defined below), you will be permitted to access your Account information online using your Login Name and Password.
Your access to and use of your Account(s) and Cales services is subject to compliance with all the terms and conditions set forth in this Agreement. You understand and acknowledge that Cales may modify or change the terms and conditions set forth herein by posting such modifications or changes online. Your use of such posting constitutes your agreement to be bound thereby. You may review modifications online at any time by referring to the "new account" section of Cales online and clicking on "Customer Agreement" . In addition, Cales may notify you of changes, modifications or changes to this Agreement by mailing a written notice or new printed agreement to you.
Please read this Agreement carefully before you sign it. If you are not willing to be bound by these terms and conditions, you should not apply online to open an account nor sign the printed form of this Agreement.
The terms and conditions of this Agreement shall supersede the online Agreement and shall govern all transactions beginning on the date you sign the Agreement. If you ever wish to deactivate your Account, you may do so subject to the terms of this Agreement, by contacting Cales at (303) 863-8272.
In consideration of Cales and Larkin accepting and carrying your Account, you hereby consent and agree to the foregoing and to the following:
1. Applicable Rules and Regulations.
All transactions for your Account shall be subject to the constitution, rules, regulations, customs and usages of the exchange or market and its clearing house, where executed by us or our agents, including our subsidiaries and affiliates.
For the purposes of this Agreement, "securities, commodities and other property," as used herein shall include, but not be limited to: money, securities, and commodities of every kind or nature and all contracts and options relating thereto, whether for present or future delivery. Also for the purposes of this Agreement, the term "Accounts" means one or more accounts ("Account") now or hereafter opened by you with Cales and/or Larkin and any Account in which you may have interest.
All securities, commodities and other property now or hereafter held, carried or maintained by us in our possession and control for any purpose, in or for any of your Accounts, shall be subject to a lien for the discharge of all indebtedness and other of your obligations to us, and are to be held by us as security for the payment of any liability or indebtedness of you to us in any of said Accounts. We shall have the right to transfer securities, commodities and other property so held by us from or to any other of your Accounts whenever in our judgment we consider such a transfer necessary for our protection. In enforcing our lien, we shall have the discretion to determine which securities and properties are to be sold and which contracts are to be closed.
We shall have the right, in accordance with our general policies regarding our margin maintenance requirements, as such may be modified, amended or supplemented from time to time, or, if, in our discretion, we consider it necessary for our protection to require additional collateral at an earlier or later point in time than called for by said general policies, or in the event that a petition in bankruptcy, or appointment of a receiver is filled by or against you, or an attachment is levied against any of your Accounts, or in the event of your death, to sell any or all securities, commodities and other property in your Accounts with us, whether carried individually or jointly with others, to buy any and /or all securities, commodities and other property which may be short in any of your Accounts, to cancel any open orders and to close any or all outstanding contracts, all without demand for margin or additional margin, notice of sale or purchase or other notice or advertisement. Any such sales or purchase or other notice or advertisement. Any such sales or purchases may be made at our discretion on any exchange or other market where such business is usually transacted, or at our discretion on any exchange or other market where such business is usually transacted, or at public auction or private sale, and we may be the purchaser(s) for our own account, it being understood that a prior demand, or call, or prior notice of the time and place of such sale or purchase shall not be considered a waiver of our right to sell or buy without demand or notice as herein provided. No course of dealing between you and us nor any delay on our part in exercising any of our rights or remedies shall constitute a waiver thereof, and any such right or remedy may be exercised from time to time and as often as we may determine.
5. Payment of Indebtedness upon Demand.
You shall at all times be liable for the payment upon demand of any debit balance or other obligations owing in any of your Accounts, and, you shall be liable to us for any deficiency remaining in each such Account in the event of the liquidation thereof, in whole or part, by us or by you; and, you shall make payment of such obligations and indebtedness upon demand.
6. Liability for Costs of Collection.
You agree to pay and shall be liable for the reasonable costs and expenses of collection of the debit balance and any unpaid deficiency in your Accounts with us, including, but not limited to, attorney's fees, incurred and payable or paid by us.
7. Pledge of Securities, Commodities and Other Property.
All securities, commodities and other property now or hereafter held, carried or maintained by us in our possession in any of your Accounts may be pledged and repledged by us from time to time, without notice to you, either separately or in common with other such securities, commodities and other property for any amount due in any of your Accounts, or any greater amount, and we may do so without returning to your possession or control for delivery a like amount of similar securities, commodities or other property.
8. Margin Requirements, Credit Charges, Credit Investigation and Deposits.
You will at all times maintain such securities, commodities and other property in each of your Accounts for margin purposes as we shall require from time to time and the monthly debit balances or adjusted balances in your Accounts with us shall be charged, in accordance with our usual custom, with interest at a rate permitted by the laws of the State of Colorado. It is understood that the interest charge made to your Accounts at the close of a charge period will be added to the opening balance for the next charge period unless paid. We may exchange credit information about you with others, including, but not limited to, certain information about you maintained by your online service for verification purposes only. As required by law, you are hereby notified that any negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations. We may request a credit report relating to you and, upon request, we will state the name and address of the consumer reporting agency that furnished it. If we extend, update or renew your credit, you agree that we may request a new credit report without notifying you.
9. Presumption of Receipt of Communications.
Communications may be sent to you at your postal or electronic mail address or at such other address as you may hereafter five us in writing or by electronic mail, and all communications so sent, whether by mail, electronic mail, telegraph, messenger or otherwise, shall be deemed given to you personally, whether actually received or not.
10. Scope and Transferability.
This Agreement shall cover individually and collectively all Accounts which you may open or reopen with us, and shall inure to the benefit of our successors and assigns (whether by merger, consolidation or otherwise) and we may transfer any of your Accounts to our successors and assigns, and this Agreement shall be binding upon your heirs, executors, administrators, successors and assigns.
11. Extraordinary Events.
We shall not be liable for loss caused directly by government restrictions, exchange or market rulings, suspension of trading, war, strikes or other conditions beyond our control. We shall not be responsible for damages caused by equipment failure, communications line failure, unauthorized access, theft, systems failure, and other occurrences beyond our control.
12. Representation as to Capacity to Enter
If you are an individual, you represent that you are of sufficient legal age to enter into this Agreement and be bound thereby, that unless otherwise disclosed to us in writing, your are not an employee of any exchange or the National Association of Securities Dealers, Inc., or of any corporation of which an corporation of which an exchange owns a majority of the capital stock, or of a member firm or member corporation of any exchange owns a majority of the capital stock, or of a member firm or member corporation of any exchange or the National Association of Securities Dealers, Inc., or of any corporation, firm or individual engaged in the business of dealing either as broker or as principal in securities, bills of exchange, acceptances or other forms of commercial paper. You further represent that no one except you has an interest in any of your Accounts with us.
13. Joint Accounts.
If this is a Joint Account, unless you notify us otherwise and provide such documentation as we require, your account(s) shall be held by you jointly with rights of survivorship (payable to either, or to your survivor). Each joint tenant irrevocably appoints the other as attorney-in-fact to take all action on his or her behalf and to represent him or her in all respects in connection with this Agreement. We shall be fully protected in acting upon the instructions of either of you, or in otherwise dealing with either of you. Each of you shall be liable, jointly and individually, for any amounts due to us pursuant to this Agreement, whether incurred by either or both of you.
14. Options Transactions.
If at any time you shall enter into any transaction for the purchase or resale of an options contract, you hereby agree to abide by the rules of any national securities association, registered securities exchange or clearing organization applicable to the trading of options contracts and, acting alone or in concert, will not violate the position or exercise limitation rules of any such association or exchange or the Options Clearing Corporation or other clearing organization.
If any provision or condition of this Agreement shall be held to be invalid or unenforceable by any court, or regulatory or self-regulatory agency or body, such invalidity or unenforceability shall attach only to such provision or condition. The validity of the remaining provisions and conditions shall not be affected thereby and this Agreement shall be carried out as if any such invalid or unenforceable provision or condition were not contained herein.
16. Headings are Descriptive.
The heading of each provision hereof 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 provision.
17. Recording Conversations and Monitoring Email.
For our mutual protection, you understand, agree, and expressly consent to us electronically recording of any of your telephone conversations with us and to our monitoring of your electronic communications conducted with us.
18. Use of Login Name and Password.
You acknowledge, represent and warrant that:
A. You will be provided with a unique "Login Name and Password" which provides access to each of your Accounts via the Cales website at www.calesinvestments.com;
B. You are the sole and exclusive owner of this Login Name and Password;
C. You accept full responsibility for use and protection of the Login Name and Password.
19. No Advice.
You understand that we provide no tax, legal or investment advice nor do we give advice or offer any opinion with respect to the suitability of any security or order. You further understand that while you may be able to access Cales or any other investment research reports through the Internet, including computerized online services, the availability of such information does not constitute a recommendation to buy or sell all or any of the securities discussed therein. Any investment decisions you make will be based solely on your evaluation of your financial circumstances and investment objectives. If you allow third parties to access our services (including your Accounts), you will defend and indemnify us against any liability, costs or damages arising out of claims or suits by such third parties based upon or relating to such access and use.
20. Responsibilities and Limitation of Liability.
You accept full responsibility for the monitoring of your Accounts.
A. You will immediately notify us in writing, delivered via U.S. Mail, if you become aware of the following:
1. any loss, theft or unauthorized use of your Login Name and Password(s) and/or Account number(s); or
If you fail to notify us when any of the above conditions occur, we will not have any responsibility or liability for any claims with respect to the handling or loss of any order. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING OR MANAGING CALES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, OR OUT OF ANY BREACH OF ANY WARRANTY. THIS EXCLUSION OR LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT THAT ANY APPLICABLE STATUTE PROHIBITS SUCH EXCLUSION OR LIMITATION OF LIABILITY. ANY LIABILITY ARISING OUT OF ANY ACTION OR OMISSION BY US SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE BENEFIT WHICH THE TRANSACTION WOULD HAVE RESULTED IN DURING THE PERIOD BETWEEN THE DATE OF THE TRADE AND THE TIME FOR SETTLEMENT UNDER ANY APPLICABLE LAW, RULE OR REGULATION.
2. any failure by you to receive a message from us indicating that an order was received and/or executed; or
3. any failure by you to receive an accurate written confirmation of an execution; or
4. any receipt of confirmation of an order and/or execution which you did not place; or
5. any inaccurate information in your Account balances, securities positions or transaction history.
B. We shall not be deemed to have received any order electronically transmitted by you until we have actual knowledge of such order.
C. The use and storage of any information including, without limitation, the Login Name and Password, portfolio information, transaction activity, Account balances and any other information available on your personal computer is your sole risk and responsibility. You are responsible for providing and maintaining the communications equipment (including personal computers and modems) and telephone or alternative services required for accessing and using Cales, and for all communications service fees and charges incurred by you in accessing the Cales website.
21. By signing this agreement, you acknowledge that securities not fully paid for by you may be loaned to us or loaned out to others.
22. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO.
23. ARBITRATION DISCLOSURES:
YOU ARE AWARE OF THE FOLLOWING:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
D. THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
E. THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
24. AGREEMENT TO ARBITRATE CONTROVERSIES.
IT IS AGREED THAT ANY CONTROVERSY ARISING OUT OF OUR BUSINESS OR THIS AGREEMENT SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR ANY OTHER NATIONAL SECURITIES EXCHANGE ON WHICH A TRANSACTION GIVING RISE TO THE CLAIM TOOK PLACE (AND ONLY BEFORE SUCH EXCHANGE) OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., AS YOU MAY ELECT AND IN ACCORDANCE WITH THE RULES PERTAINING TO THE SELECTED ORGANIZATION. ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE, THEREIN ELECTING THE ARBITRATION TRIBUNAL. IN EVENT YOU DO NOT MAKE SUCH ELECTION WITHIN FIVE (5) DAYS OF SUCH DEMAND OR NOTICE, THEN YOU AUTHORIZE US TO DO SO ON YOUR BEHALF.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION WHO HAS NOT OPTED OUT OF CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (1) THE CLASS CERTIFICATION IS DENIED; (2) THE CLASS IS DECERTIFIED; OR (3) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
25. Data Not Guaranteed.
YOU EXPRESSLY AGREE THAT YOUR USE OF CALES AND OF ANY SOFTWARE PROVIDED FOR USE IN ACCESSING OUR SERVICES IS AT YOUR SOLE RISK. NEITHER OF US NOR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, AFFILIATES, INFORMATION PROVIDERS, LICENSORS, OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE NEW YORK STOCK EXCHANGE, INC. (COLLECTIVELY, THE "DISSEMINATING PARTIES"), WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF US OR THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF CALES, OR AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR TRANSACTION PROVIDED FOR USE IN ACCESSING CALES.
THE CALES SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
No Disseminating Party shall be liable in any way to you or to any other person for;
A. any inaccuracy, error or delay in, or omission of, (i) any such data, information or message, or (ii) the transmission or delivery of any such data, information or message; or
B. any loss or damage arising from or occasioned by (i) any such inaccuracy, error delay or omission, (ii) non-performance, or (iii) interruption in any such data, information or message due either to any negligent act or omission by any Disseminating Party or to any "force majeure" (e.g., flood, extraordinary weather condition, earthquake or other act of God, fire, war, insurrection, riot labor dispute, accident, action of government, communications, power failure, equipment or software malfunction) or any other cause beyond the reasonable control of any Disseminating Party.
26. Modification of Agreement.
We may unilaterally change these terms and conditions at any time by conspicuously posting notice of such change in the Customer Agreement online, located in the new account section of Cales for a period of five (5) consecutive business days or by providing written notice to you. Continued use of Cales after such notice will constitute acknowledgment and acceptance of the revised terms and conditions.
27. Termination of Cales Service.
We may block access to the use of Cales without prior notice in the event we elect to discontinue such service on a temporary or permanent basis or in the event that you breach this Agreement. You will remain responsible for the payment of all charges incurred in your Account before termination becomes effective.
28. Limitations on Use of Cales Services.
You are authorized to use materials which are made available by Cales only for your own needs, and you are not authorized to resell access to any such materials or to make copies of any such materials for sale to others. You will not delete copyright or other intellectual property rights notices from printouts of electronically accessed materials.
29. No Agency.
You understand that Cales is not acting as agent of Larkin and you agree that you will in no way hold Cales, Larkin, or any division, officer, director or agent thereof liable for any trading losses or other losses incurred by you. Larkin is carrying your account as clearing broker pursuant to a clearing agreement with Cales. Until receipt from you of written notice to the contrary, Larkin may accept from Cales, without inquiry or investigation: (i)order(s) for the purchase or sale of securities and other property on margin or otherwise; and (ii)any other instructions concerning said Account. Notices to you concerning margin requirements or other matters related to your Account usually will be sent to you through Cales; although notice may be sent directly from Larkin to you with or without duplicate notice to Cales if market conditions or time constraints so require, or if Larkin determines, in its sole discretion, that other circumstances so require.
30. Assignment of Rights Between Cales and Larkin.
You understand and agree that any rights either Larkin or Cales has under this Agreement may be exercised by either Larkin or Cales or may be assigned to the other, including, but not limited to, the right to collect any debt balance or other obligations owing in your Account and that Larkin and Cales may collect from you or enforce any other rights under this Agreement independently or jointly.
PLEASE NOTE THAT THE CUSTOMER AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION AGREEMENT WHICH IS SET FORTH IN PARAGRAPHS 23 AND 24 OF THE CUSTOMER AGREEMENT.