To effect the securities transactions you are making you are hereby appointing SageWorks ("Adviser", "us", "our", "we", "Firm") as your accommodating broker. Adviser is an SEC registered, FINRA member, SIPC insured broker-dealer that is registered in your state of residence. This Agreement ("Agreement") governs all aspects of your relationship with Adviser. YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS FOLLOWS:
1. True and Accurate Information; Ownership
You certify and represent that all information you provided in your investing details (meaning the name and title in which your securities are recorded on the books and records of the issuer(s) and their designated transfer agent, if any, and statement of accreditation are all true, complete, current and accurate and that Adviser may rely on these statements and the self-attestations and representations that you made. You agree to indemnify and hold Adviser and our affiliates harmless from and against any and all loss, liability, cost, damage, charge, expense or fee (including attorneys' fees and costs of collection) of any nature whatsoever, and claims therefore (collectively, "losses") arising out of or relating to your failure to provide true, current, complete and/or accurate information.
2. Fiduciary Accounts
Adviser does not review any action or inaction of a Fiduciary with respect to any transaction(s) therein and we are not responsible for determining whether a Fiduciary's action or inaction satisfies the standard of care applicable to such Fiduciary's handling of a transaction. Adviser is not responsible for determining the validity of a person or entity's status or capacity to serve as a Fiduciary.
3. Responsibility for Orders
All orders for the purchase and sale of securities are authorized by you and executed in reliance on your representation, action and promise that an actual purchase or sale is intended. You understand Adviser may at any time, in our sole discretion and without prior notice to you, prohibit or restrict your ability to purchase or sell securities. In no event will Adviser be obligated to effect any transaction we believe, in our sole and arbitrary discretion, even if unverified and without involving legal counsel, that such transaction may in any way violate any federal or state law, rule or regulation or the rules or regulations of any regulatory or self-regulatory body; and when and where we decline to effect any transaction we are under no obligation to inform you or any other person of such declination, nor to provide any reason or substantiation for such declination, and will not be held responsible for any problems with such declination including but not limited to lost opportunities, lost profits, lost participation interests, or other lost or forgone benefits that you or others might otherwise have received had the effecting of the transaction(s) not been declined by us.
4. Liquidity of Private and Non-Major-Exchange Traded Securities
You hereby represent and warrant that you understand that investments in the equity or debt securities of private and/or securities which are not traded on a major exchange ("major exchange" being exclusively defined as NASDAQ, NYSE and AMEX – all other exchanges and trading platforms, including but not limited to OTC, are not considered "major" for purposes of this Agreement and your acknowledgement and acceptance of liquidity and other risks) are generally illiquid and that you may not be able to sell them and may have to hold them indefinitely For purposes of this agreement, such securities include all, without exception, those originally issued pursuant to any of Regulations 506(b), 506(c), 504, 4(a)(6), Reg A, or Reg S or the Securities Act of 1933, as amended.
5. Risk Profile of Investments
The SEC and other regulators, as well as common sense, generally deem all private and non-major-exchange traded securities to be "high risk". As such, you hereby represent and warrant that you are fully informed and aware of the risks of investing in these types of securities and will be held solely and exclusively accountable for the investments you make, even if done so in accordance with our advice or recommendation(s). Furthermore, you hereby represent and warrant that you understand that the risk profile of such securities means that you may lose some or all of your principal, as well as never realize part or all of the returns you anticipated, and that you are both comfortable with and capable of bearing and sustaining such loses without recourse. No securities effected through Adviser are in any way insured, guaranteed or without risk.
6. No Legal, Tax or Accounting Advice
You agree without reservation that Adviser has not, does not and will not provide any legal, tax or accounting advice in any way, nor on any matter, regardless of the tone or content of any communication (oral, written or otherwise). You unconditionally agree to rely solely on your legal, tax and accounting professionals for any such advice and on all matters.
7. LIMITATIONS OF LIABILITY
a. Disclaimer of Consequential Damages
YOU HEREBY ACKNOWLEDGE AND AGREE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THAT ADVISER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO ANY TRANSACTION CONTEMPLATED, ATTEMPTED OR EXECUTED UNDER THIS AGREEMENT, INCLUDING FAILURES TO EXECUTE, FOR YOU, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF PRINCIPAL, OR OTHER LOSSES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO ECONOMIC, PHYSICAL, SOCIAL AND/OR PSYCHOLOGICAL, REGARDLESS OF WHETHER OR NOT APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND EVEN IF SUCH EVENTS COULD HAVE BEEN REASONABLY FORESEEN OR PREVENTED BY ADVISER.
b. Cap on Liability
YOU HEREBY ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL ADVISER'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID, IF ANY, DIRECTLY AND INDIVIDUALLY BY YOU TO ADVISER UNDER THIS AGREEMENT DURING THE 12 MONTHS PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
c. General Indemnification
You hereby agree to indemnify, protect, defend and hold harmless Adviser and our officers, directors, members, shareholders, employees, agents, partners, vendors, successors, assigns and related parties from and against any and all third party claims, demands, obligations, losses, liabilities, damages, recoveries and deficiencies (including interest, penalties and reasonable attorneys' fees, costs and expenses), which Adviser may suffer as a result of: (a) any breach of or material inaccuracy in the representations and warranties, or breach, non-fulfillment or default in the performance of any of the conditions, covenants and agreements, by you contained in this Agreement or in any certificate or document delivered by you or your agents pursuant to any of the provisions of this Agreement, or (b) any obligation which is expressly the responsibility of you under this Agreement, or (c) any other cost, claim or liability arising out of or relating to the rights and privileges granted or obligations incurred (including performance obligations) hereunder. Any amount due under the aforesaid indemnity will be due and payable by you within thirty (30) days after demand thereof. Furthermore, you shall protect, hold harmless and indemnify Adviser and our officers, directors, members, shareholders, employees, agents, partners, vendors, successors and assigns from and against any and all liability related to your activities, actions and inactions related to your transactions and this Agreement.
d. Disclaimer of Liability
You understand and agree that Adviser and our affiliates will not be liable to you or to any third parties, or have any responsibility whatsoever for: a. any losses arising out of or relating to a cause over which Adviser or our affiliates did not have direct control, including the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, operator errors, government restrictions, force majeure (e.g., earthquake, flood, severe or extraordinary weather conditions, natural disasters or other act of God, fire, acts of war, terrorist attacks, insurrection, riot, strikes, labor disputes or similar problems, accident, action of government, communications, system or power failures and equipment or software malfunction), regulatory, exchange or market rulings; or, b. any special, indirect, incidental or consequential damages (including lost profits, trading losses and damages) that you may incur in connection with your activities transacted through Adviser under this Agreement.
9. Severability, Waiver and Effectiveness
If any provision of this Agreement is held to be invalid, void or unenforceable by reason of any law, rule, administrative order or judicial decision, that determination will not affect the validity of the remaining provisions of this Agreement.
Adviser's failure to insist on strict compliance with this Agreement or any other course of conduct on our part will not be deemed a waiver of Adviser' rights under this Agreement.
This Agreement will pass to the benefit of Adviser and our successors, assigns and agents. In addition, you hereby agree that this Agreement and all the terms hereof will be binding on your heirs, executors, administrators, personal representatives, successors, assigns and agents.
You agree that any headings, captions, and subtitles used in this Agreement are for descriptive purposes only and will not be deemed to modify or qualify any of the rights or obligations set forth in each such section. They are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
13. Entire Understanding; Assignment
This Agreement contains the entire understanding between Adviser and you. Adviser may assign our rights and duties under this Agreement to any of our successors, subsidiaries or affiliates without giving you notice, or to any other entity upon three days prior written notice to you, delivered by email (see Notices section, below). You may not assign the rights and obligations under this Agreement without first obtaining the prior written consent of Adviser. Any purported assignment in violation of this Agreement will be void.
14. Force Majeure
No party will be liable for any default or delay in performance of any of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by fire, flood, earthquake or other acts of God; labor disputes, strikes or lockouts; wars, rebellions or revolutions; riots or civil disorder; accidents or unavoidable casualties; interruptions in transportation or communications facilities or delays in transit or communication; acts of regulators; acts of auditors; acts of legal authorities; supply shortages or the failure of any person to perform any commitment to such party related to this Agreement; or any other cause, whether similar or dissimilar to those expressly enumerated in this Section beyond such party's reasonable control.
It is expressly agreed that it is the will of all parties, including you and us that this Agreement and other communications, if any, have been and will in the future be drawn up and presented in English. Adviser makes no efforts to translate any materials into any other language, and you agree that we shall not be held liable for any parties' efforts to translate our documents or information.
16. Binding Arbitration, Applicable Law and Venue, Attorneys Fees
You agree that this Agreement is governed by, and will be interpreted and enforced in accordance with, the laws of the State of New York, without regard to principles of conflict of laws.
You agree that any controversy, dispute, claim or grievance between you and us, including any of our affiliates, or our or their shareholders, officers, directors, employees, associates or agents, and you or, if applicable, your shareholders, officers directors, employees, associates or agents, arising out of, or relating to, this Agreement, or any service provided by us, including transactions of any kind made on your behalf through us, shall be resolved by Financial Industry Regulatory Authority (FINRA) arbitration, in accordance with FINRA's Code of Arbitration Procedure. If you are not a resident of the U.S. at the time a controversy subject to arbitration arises, you agree that any arbitration hearing shall be held in New York City, New York; you consent to the personal jurisdiction of all courts located in the State of New York for purposes of enforcing this arbitration agreement and any arbitration award; and you agree that any arbitration proceeding shall be conducted in the English language. If any party unsuccessfully resists confirmation or enforcement of an arbitration award rendered under this agreement, then all costs, attorneys' fees, and expenses incurred by the other party or parties in confirming or enforcing the award shall be fully assessed against and paid by the party resisting confirmation or enforcement of the award. This agreement contains a pre-dispute arbitration clause. By signing this Agreement the parties agree as follows:
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; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; or (ii) the class is decertified; or (iii) 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.
You hereby consent to this method of dispute resolution, as well as jurisdiction and waive any right you may have to object to either the method or jurisdiction for such claim or dispute. In the event of any dispute among the parties, the prevailing party shall be entitled to recover damages plus reasonable attorney's fees, and the decision of the arbitrator shall be final, binding and enforceable in any court.
17. Electronic Signature and Communications Notice and Consent
a. Notice: Digital ("electronic") signatures, often referred to as an "e-signature", enable paperless contracts and help speed up business transactions. The 2001 E-Sign Act was meant to ease the adoption of electronic signatures. You hereby agree and consent that your intentional action in electronically signing this Agreement by clicking the "I AGREE" checkbox is the legal equivalent of your manually signing this Agreement and you will be legally bound by its terms and conditions. The use of an electronic version of any documents or communications satisfies any requirement that they be provided to you in writing. You are solely responsible for reviewing and understanding all of the terms and conditions of this Agreement and any current or future documents. You hereby consent and agree that electronically signing this Agreement constitutes your signature, acceptance and agreement as if actually signed by you in writing. Further, you agree that no certification authority or other third party verification is necessary to validate any electronic signature; and that the lack of such certification or third party verification will not in any way affect the enforceability of your signature or resulting contract between you and Adviser. You understand and agree that your e-signature executed in conjunction with the electronic submission of this Agreement shall be legally binding. Furthermore, you agree that all current and future notices, confirmations and other communications regarding this Agreement specifically, and your transactions in general will be made by email, sent to the email address of record as provided by you to us when ordering a transaction, without necessity of confirmation of receipt, delivery or reading, and such form of electronic communication is sufficient for all matters regarding the relationship between the parties. If any such electronically-sent communication fails to be received for any reason, including but not limited to such communications being diverted to the recipients' spam filters, or by errors or policies of the recipients email service provider, or due to a recipients' change of address, or due to technology issues by the recipients' service provider, you agree that the burden of such failure to receive is on you as the recipient, and not Adviser as the sender, and that the sender is under no obligation to resend communications via any other means, including but not limited to postal service or overnight courier, and that such communications shall for all purposes, including legal and regulatory, be deemed to have been delivered and received. No physical, paper documents will be sent to you, and if you desire physical documents then you agree to be satisfied by directly and personally printing, at your own expense, the electronically-sent communication(s) and maintaining such physical records in any manner or form that you desire.
b. Your Consent is Hereby Given: By signing this Agreement electronically, you explicitly agree to this Agreement, including binding arbitration provisions provided herein, and to receive all communications and documents electronically. You agree that you may revoke your consent to receive electronic communications only by terminating your relationship with Adviser pursuant to the provisions contained in this Agreement. Your revocation of consent will in no way affect the legal effectiveness or validity of this Agreement or of any electronic communication provided while your consent was in effect.
c. Costs. Potential costs associated with electronic delivery of electronic communications include, but are not limited to charges from internet service providers. All costs are exclusively borne by you. Adviser does not charge any fees for electronic communications, nor does it reimburse any costs related thereto.
All notices permitted or required by this Agreement will be via email, and will be deemed to have been delivered and received upon sending via any nationally recognized and trusted SMTP delivery service. Notices shall be delivered to the address on record which, if to Adviser shall be to firstname.lastname@example.org, if to you shall be to the email address you provided when you made the securities transaction.
19. Amendment, Alteration or Modification
This Agreement may be amended, altered or modified only by an instrument in writing specifying such amendment, alteration or modification, which is executed by both parties. In the event that any provision of this Agreement shall be held by a court, arbitral or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible by applicable law and the remaining portions of this Agreement shall remain in full force and effect and enforceable.