- Customer Agreement: This Agreement (“Agreement”) governs the relationship between Customer and Euro Pacific Securities, Inc. (“EPS”). If this Agreement varies from the EPS website, this Agreement controls. This Agreement cannot be amended or waived except in writing by an EPS officer. Customer Service employees cannot amend or waive any part of this Agreement. Customer acknowledges that EPS may revise this Agreement by sending notice of the revised Agreement by e-mail or upon Customer log-in. Customer’s use of EPS after such notice constitutes acceptance of the revised Agreement.
The Services in this Agreement are offered by Euro Pacific Securities Inc. (“Euro Pacific Securities”), as an Introducing Broker to Interactive Brokers LLC. Interactive Brokers LLC is the custodian, technology provider, and clearing broker to all transactions executed through Euro Pacific Trader and thus the rates, conditions, and examples shown on this site may be subject to change and differ from what is displayed on Euro Pacific Trader. The rates, conditions, and examples on this site are provided on a best-efforts basis and should not be taken as final.
Interactive Brokers LLC is a registered Broker-Dealer, Futures Commission Merchant and Forex Dealer Member, regulated by the U.S. Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC) and the National Futures Association (NFA), and is a member of the Financial Industry Regulatory Authority (FINRA) and several other self-regulatory organizations. Interactive Brokers LLC does not endorse or recommend any introducing brokers, third-party financial advisors or hedge funds, including Euro Pacific Securities. Interactive Brokers LLC provides execution and clearing services to customers. None of the information contained herein constitutes a recommendation, offer, or solicitation of an offer by Interactive Brokers LLC to buy, sell or hold any security, financial product or instrument or to engage in any specific investment strategy. Interactive Brokers LLC makes no representation, and assumes no liability to the accuracy or completeness of the information provided on this website.
For more information regarding Interactive Brokers, please visit www.interactivebrokers.com.
- No Investment, Tax or Trading Advice: EPS representatives are not authorized to provide investment, tax or trading advice or to solicit orders. Nothing on EPS’s website is a recommendation or solicitation to buy or sell securities, futures or other investments.
- Responsibility for Customer Orders/Trades: Customer acknowledges that EPS does not know whether someone entering orders with Customer’s user name/password is Customer. Unless EPS is notified and agrees, Customer will not allow anyone to access Customer’s account. Customer is responsible for the confidentiality and use of Customer’s user name/password and agrees to report any theft/loss of such user name/password, or any unauthorized access to Customer’s account, immediately by telephone or electronically through the EPS website. Customer remains responsible for all transactions entered using Customer’s user name/ password.
- Order Routing: Unless otherwise directed, EPS will select the market/dealer to which to route Customer’s orders. For products traded at multiple markets, EPS may provide “Smart Routing”, which seeks the best market for each order through a computerized algorithm. Customer should choose Smart Routing if available. If Customer directs orders to a particular market, Customer assumes responsibility for knowing and trading in accordance with the rules and policies of that market (e.g., trading hours, order types, etc.). EPS cannot guarantee execution of every order at the best posted price: EPS may not have access to every market/dealer; other orders may trade ahead; market centers may not honor posted prices or may re-route orders for manual handling; or market rules, decisions or system failures may prevent/delay execution of Customer’s orders or cause orders not to receive the best price.
- Order Cancellation/Modification: Customer acknowledges that it may not be possible to cancel/ modify an order and that Customer is responsible for executions notwithstanding a cancel/modify request.
- Order Execution: EPS shall execute Customer orders as agent, unless otherwise confirmed. EPS can execute Customer orders as principal. EPS may use another broker, or an affiliate, to execute orders, and they have benefit of all EPS’s rights hereunder. EPS may decline any Customer order, or terminate Customer’s use of EPS’s services at any time in EPS’s discretion. All transactions are subject to rules and policies of relevant markets and clearinghouses, and applicable laws and EPS IS NOT LIABLE FOR ANY ACTION OR DECISION OF ANY EXCHANGE, MARKET, DEALER, CLEARINGHOUSE OR REGULATOR.
- Customer agrees to monitor each order until EPS confirms execution or cancellation. Customer acknowledges that confirmations of executions or cancellations may be delayed or may be erroneous (e.g. due to computer system issues) or may be cancelled/adjusted by an exchange. Customer is bound by the actual order execution, if consistent with Customer’s order. If EPS confirms execution or cancellation in error and Customer delays reporting such error, EPS reserves the right to remove the trade from the account or require Customer to accept the trade, in EPS’s
- Customer agrees to notify EPS immediately by telephone or electronically through the EPS website if: i) Customer fails to receive an accurate confirmation of an execution or cancellation; ii) Customer receives a confirmation that is different than Customer’s order; iii) Customer receives a confirmation for an order that Customer did not place; or iv) Customer receives an account statement, confirmation or other information reflecting inaccurate orders, trades, balances, positions, margin status or transaction history. Customer acknowledges that EPS may adjust Customer’s account to correct any error. Customer agrees to promptly return to EPS any assets erroneously distributed to Customer.
- Proprietary Trading – Display of Customer Orders: Subject to all laws and regulations, Customer authorizes EPS to execute proprietary trades of itself and its affiliates, though EPS may simultaneously hold unexecuted Customer orders for the same products at the same price.
- Customer Qualification: Customer warrants that his, her or its application is true and complete; will promptly notify EPS of any information changes; and authorizes EPS to make any inquiry to verify information.
- Natural Persons: Customer warrants that Customer is over 18; is under no legal incapacity; and has sufficient knowledge and experience to understand the nature and risks of the products to be traded.
- Organizations: Customer and its authorized representatives warrant that Customer: (i) is authorized under its governing document(s) and in the jurisdictions in which it is organized and/or regulated to enter this Agreement and trade (including on margin if applicable); (ii) is under no legal incapacity; and (iii) that persons identified to enter orders have proper authority and have sufficient knowledge and experience to understand the nature and risks of the products to be traded.
- Trusts: “Customer” refers to the Trust and/or Trustees. Trustee(s) represent(s) that there are no Trustees other than listed in the application and certifies(y) that EPS may follow instructions from any Trustee and deliver funds, securities, or any other assets to any Trustee or on any Trustee’s instructions, including delivering assets to a Trustee personally. EPS, in its discretion, may require written consent of any or all Trustee(s) prior to following instructions of any Trustee. Trustee(s) certify that Trustee(s) has (have) the power under the Trust documents and applicable law to enter this Agreement, open the type of account applied for, and enter transactions and issue instructions. Such powers include, without limit, authority to buy, sell (including short), exchange, convert, tender, redeem and withdraw assets (including delivery of securities to/from the account) to trade securities on margin or otherwise (including purchase/sale of options), and trade futures and/or options on futures, for the Trust. Should only one Trustee execute this Agreement, Trustee represents that Trustee has the authority to execute this Agreement, without consent by the other Trustees. Trustee(s) certifies(y) that all transactions for this account will comply with the Trust documents and applicable law and that all trading in this Account will be consistent with the powers delegated to the Trustee(s) by the Trust document(s) and with the fiduciary duties of the Trustee(s) to the Trust and/or the beneficiary(ies) of the Trust. Trustee(s) also certifies(y) that Trustee(s) will inform any beneficiary(ies) of the Trust of the activity in the Trust’s account(s) as required by the Trust document and applicable law. Trustee(s), jointly and severally, shall indemnify EPS and hold EPS harmless from any claim, loss, expense or liability for effecting any transactions, and acting upon any instructions given by the Trustee(s). Trustee(s) will notify Interactive promptly if the authority of the Trustee(s) change in any manner material to this Agreement, including but not limited to any change affecting the accuracy of any warrants made herein.
- Regulated Persons and Entities: Unless Customer notifies EPS otherwise, Customer represents that Customer is not a broker-dealer; futures commission merchant; or affiliate, associated person or employee thereof. Customer agrees to notify EPS immediately by telephone or electronically through the EPS website if Customer becomes employed or associated with a broker-dealer or futures commission merchant.
Joint Accounts:Each joint account holder agrees that each joint holder has authority, without notice to the other, to: (i) buy/sell securities, futures or other products (including on margin); (ii) receive account confirmations and correspondence; (iii) receive and dispose of money, securities or other assets; (iv) enter, terminate, or agree to modify this Agreement; (v) waive any part of this Agreement; and (vi) deal with EPS as if each joint holder was the sole holder. Notice to any joint holder constitutes notice to all joint holders. Each joint account holder is jointly and severally liable to EPS for all account matters. EPS may follow instructions of any joint holder and make delivery to any joint account holder individually of any account.
Upon death of any joint holder, the surviving holder shall give EPS notice by telephone or electronically through the EPS website and EPS may, before or after notice, initiate proceedings, require documents, retain assets and/or restrict transactions as it deems advisable to protect itself against any liability or loss. The estate of any deceased joint account holder shall be liable and each survivor will be liable, jointly and severally, to EPS for any debt or loss in the account or upon liquidation of the account. Unless Customers indicate otherwise, EPS may presume that account holders are joint tenants with rights of survivorship. Upon death of any joint holder, the account shall be vested in the surviving holders, without in any manner releasing the deceased joint holder’s estate from liability.
- Risk of Margin Trading: Margin trading is highly risky and may result in a loss of funds greater than Customer has deposited in the account. Customer represents that he or she has read the “Disclosure of Risks of Margin Trading” provided separately by EPS.
- Requirement to Maintain Sufficient Margin Continuously: Margin transactions are subject to initial and maintenance margin requirements of exchanges, clearinghouses and regulators and also to any additional margin requirement of EPS, which may be greater (“Margin Requirements”). EPS MAY MODIFY MARGIN REQUIREMENTS FOR ANY OR ALL CUSTOMERS FOR ANY OPEN OR NEW POSITIONS AT ANY TIME, IN EPS’S SOLE DISCRETION. Customer shall monitor his, her or its account so that at all times the account contains sufficient equity to meet Margin Requirements. EPS may reject any order if the account has insufficient equity to meet Margin Requirements, and may delay processing any order while determining margin status. Customer shall maintain, without notice or demand, sufficient equity at all times to continuously meet Margin Requirements. Formulas for calculating Margin Requirements on the EPS website are indicative only and may not reflect actual Margin Requirements. Customer must at all times satisfy whatever Margin Requirement is calculated by EPS.
- EPS Will Not Issue Margin Calls: EPS does not have to notify Customer of any failure to meet Margin Requirements prior to EPS exercising its rights under this Agreement. Customer acknowledges that EPS generally will not issue margin calls; generally will not credit Customer’s account to meet intraday or overnight margin deficiencies; and is authorized to liquidate account positions in order to satisfy Margin Requirements without prior notice.
- Liquidation of Positions and Offsetting Transactions:
- IF AT ANY TIME CUSTOMER’S ACCOUNT HAS INSUFFICIENT EQUITY TO MEET MARGIN REQUIREMENTS OR IS IN DEFICIT, EPS HAS THE RIGHT, IN ITS SOLE DISCRETION, BUT NOT THE OBLIGATION, TO LIQUIDATE ALL OR ANY PART OF CUSTOMER’S POSITIONS IN ANY OF CUSTOMER’S EPS NON-IRA ACCOUNTS, INDIVIDUAL OR JOINT, AT ANY TIME AND IN ANY MANNER AND THROUGH ANY MARKET OR DEALER, WITHOUT PRIOR NOTICE OR MARGIN CALL TO CUSTOMER. CUSTOMER SHALL BE LIABLE AND WILL PROMPTLY PAY EPS FOR ANY DEFICIENCIES IN CUSTOMER’S ACCOUNT THAT ARISE FROM SUCH LIQUIDATION OR REMAIN AFTER SUCH LIQUIDATION. EPS HAS NO LIABILITY FOR ANY LOSS SUSTAINED BY CUSTOMER IN CONNECTION WITH SUCH LIQUIDATIONS (OR IF THE EPS SYSTEM DELAYS EFFECTING, OR DOES NOT EFFECT, SUCH LIQUIDATIONS) EVEN IF CUSTOMER RE-ESTABLISHES ITS POSITION AT A WORSE
- EPS may allow Customer to pre-request the order of liquidation in event of a margin deficiency, but such requests are not binding on EPS and EPS retains sole discretion to determine the assets to be liquidated and the order/manner of liquidation. EPS may liquidate through any market or dealer, and EPS or its affiliates may take the other side of the transactions consistent with laws and regulations. If EPS liquidates any/all positions in Customer’s account, such liquidation shall establish Customer’s gain/loss and remaining indebtedness to EPS, if any. Customer shall reimburse and hold EPS harmless for all actions, omissions, costs, fees (including, but not limited to, attorney’s fees), or liabilities associated with any such transaction undertaken by EPS. If EPS executes an order for which Customer did not have sufficient equity, EPS has the right, without notice, to liquidate the trade and Customer shall be responsible for any resulting loss and shall not be entitled to any resulting profit.
- If EPS does not, for any reason, liquidate under-margined positions, and issues a margin call, Customer must satisfy such call immediately by depositing funds. Customer acknowledges that even if a call is issued, EPS still may liquidate positions at any time.
- Customer acknowledges that EPS also has the right to liquidate all or part of Customer’s positions without prior notice: (i) if any dispute arises concerning any Customer trade, (ii) upon any “Default” as described in 17 below, or (iii) whenever EPS deems liquidation necessary or advisable for EPS’s protection.
- Universal Accounts: An EPS Universal Account is two underlying accounts: a securities account and a commodity account. Customer authorizes transfers between the securities and commodity accounts to cover Margin Requirements and other obligations, and acknowledges EPS may liquidate positions to cover obligations in the other account. Customer authorizes EPS to provide combined confirmations/statements for both accounts.
- Short Sales: Customer acknowledges that short sales must be done in a margin account, subject to Margin Requirements; that prior to selling short, EPS must believe it can borrow stock for delivery; and that if EPS cannot borrow stock (or re-borrow after a recall notice) EPS may buy-in stock on Customer’s behalf, without notice to Customer, to cover short positions and Customer is liable for any losses/ costs.
- EPS’s Right to Loan/Pledge Customer Assets: As allowed by law, EPS is authorized by Customer to lend to itself or others Customer securities or assets. EPS may, without notice, pledge, re-pledge, hypothecate or re-hypothecate Customer’s securities and assets, separately or together with those of other customers, for any amount due in any EPS account in which Customer has an interest, without retaining in EPS’s possession or control a like amount of assets. For loans of securities, EPS may receive financial and other benefits to which Customer is not entitled. Such loans could limit Customer’s ability to exercise securities’ voting rights.
- Security Interest: All assets of any kind held by or on behalf of EPS for Customer’s account are hereby pledged to EPS and are subject to a perfected first priority lien and security interest in EPS’s favor to secure performance of obligations and liabilities to EPS arising under this or any other Agreement.
- No Restricted Securities.Unless Customer has notified EPS to the contrary, no assets held as Collateral are restricted securities, as such term is defined pursuant to Rule 144 under the Securities Act of 1933, (the Securities Act), or securities of an issuer with which Customer is an affiliate, and Customer will not attempt to sell such shares through EPS without prior notice to and consent of EPS.
- Event of Default: A “Default” occurs automatically, without notice upon: (i) Customer breach/ repudiation of any agreement with EPS; (ii) Customer failure to provide assurance satisfactory to EPS of performance of an obligation, after request from EPS in EPS’s sole discretion; (iii) proceedings by/against Customer under any bankruptcy, insolvency, or similar law; (iv) assignment for the benefit of Customer’s creditors; (v) appointment of a receiver, trustee, liquidator or similar officer for Customer or Customer property; (vi) Customer representations being untrue or misleading when made or later becoming untrue; (vii) legal incompetence of Customer; (viii) proceeding to suspend Customer’s business or license by any regulator or organization; (ix) EPS having reason to believe that any of the foregoing is likely to occur Customer unconditionally agrees that, upon a Default, EPS may terminate any or all EPS’s obligations to Customer and EPS shall have the right in its discretion, but not the obligation, without prior notice, to liquidate all or any part of Customer’s positions in any EPS account, individual or joint, at any time and any manner and through any market or dealer. Customer shall reimburse and hold EPS harmless for all actions, omissions, costs, fees (including, but not limited to, attorney’s fees), or liabilities associated with any Customer Default or any transaction undertaken by EPS upon Default.
- Suspicious Activity: If EPS in its sole discretion believes that a Customer account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), EPS may suspend or freeze the account or any privileges of the account, may freeze or liquidate funds or assets, or may utilize any of the remedies in this Agreement for a “Default”.
- Multi-Currency Function in EPS Accounts:
- Customers may be able to trade products denominated in different currencies using a base currency chosen by Customer. Upon purchase of a product denominated in a different currency from the base currency, a margin loan is created to fund the purchase, secured by the assets in Customer’s accounts. If Customer maintains positions denominated in foreign currencies, EPS will calculate Margin Requirements by applying exchange rates specified by EPS. EPS WILL APPLY “HAIRCUTS” (A PERCENTAGE DISCOUNT ON THE FOREIGN CURRENCY EQUITY AMOUNT) TO REFLECT THE POSSIBILITY OF FLUCTUATING EXCHANGE RATES BETWEEN THE BASE CURRENCY AND THE FOREIGN CURRENCY. CUSTOMER MUST CLOSELY MONITOR MARGIN REQUIREMENTS AT ALL TIMES, PARTICULARLY FOR POSITIONS DENOMINATED IN FOREIGN CURRENCIES, BECAUSE FLUCTUATION IN THE CURRENCY AND THE VALUE OF THE UNDERLYING POSITION CAN CAUSE A MARGIN DEFICIT.
- Customer agrees that EPS’s obligations to Customer shall be denominated in: (i) the United States dollar; (ii) a currency in which funds were deposited by Customer or were converted at the request of Customer, to the extent of such deposits and conversions; or (iii) a currency in which funds have accrued to the customer as a result of trading conducted on a designated contract market or registered derivatives transaction execution facility, to the extent of such accruals. Information regarding Customer’s currency conversions is provided on the EPS customer statements. Customer further agrees that EPS may hold customer funds in: (i) the United States; (ii) a money center country as defined by the US Commodity Exchange Act & regulations thereunder; or (iii) the country of origin of the currency. In addition, Customer acknowledges and authorizes EPS to hold Customer’s funds outside the United States, in a jurisdiction that is neither a money center country nor the country of origin of the currency in order to facilitate Customer’s trading in investments denominated in that currency.
- Foreign Currency Exchange (“Forex”) Transactions:
- HIGH RISKS OF FOREX TRADING: FOREX TRADING IS GENERALLY UNREGULATED, IS HIGHLY RISKY DUE TO THE LEVERAGE (MARGIN) INVOLVED, AND MAY RESULT IN LOSS OF FUNDS GREATER THAN CUSTOMER DEPOSITED IN THE ACCOUNT. Customer represents that he or she has read and acknowledges the “Risk Disclosure Statement for Forex Trading and Multi-Currency Accounts” provided separately by EPS.
- For Forex transactions, EPS generally will act as an Introducing Broker or riskless principal and charge a fee. EPS may effect Forex transactions through an affiliate or third party, which may profit or lose from such transactions. Customer agrees that EPS may transfer to or from Customer’s regulated futures or securities account(s) from or to any of Customer’s non-regulated Forex account any funds or assets that may be required to avoid margin calls, reduce debit balances or for any other lawful reason.
- Netting: (i) Netting by Novation. Each Forex transaction between Customer and EPS will immediately be netted with all then-existing Forex transactions between Customer and EPS for the same currencies to constitute one transaction. (ii) Payment Netting. If on any delivery date more than one delivery of a currency is due, each party shall aggregate the amounts deliverable and only the difference shall be delivered. (iii) Close-Out Netting. If Customer: (a) incurs a margin deficit in any EPS account, (b) defaults on any obligation to EPS, (c) becomes subject to bankruptcy, insolvency or other similar proceedings, or (d) fails to pay debts when due, EPS has the right but not the obligation to close out Customer’s Forex transactions, liquidate all or some of Customer’s collateral and apply the proceeds to any debt to EPS. (iv) Upon Close-Out Netting or any “Default”, all outstanding Forex transactions will be deemed terminated as of the time immediately preceding the triggering event, petition or proceeding. (v) EPS’s rights herein are in addition to any other rights EPS has (whether by agreement, by law or otherwise).
- Nothing herein constitutes a commitment of EPS to offer Forex transactions generally or to enter into any specific Forex transaction. EPS reserves the unlimited right to refuse any Forex order or to decline to quote a two-way market in any currency.
- Commodity Options and Futures Not Settled in Cash: Customer acknowledges that: (A) commodity options cannot be exercised and must be closed out by offset; and (B) for futures contracts that settle not in cash but by physical delivery of the commodity (including currencies not on EPS’s Deliverable Currency List), Customer cannot make or receive delivery. If Customer has not offset a commodity option or physical delivery futures position prior to the deadline on the EPS website, EPS is authorized to roll or liquidate the position or liquidate any position or commodity resulting from the option or futures contract, and Customer is liable for all losses/costs.
- Commissions and Fees, Interest Charges, Funds: Commissions and fees are as specified on the EPS website unless otherwise agreed in writing by an officer of EPS. Customer acknowledges that EPS deducts commissions/fees from Customer accounts, which will reduce account Positions will be liquidated if commissions or other charges cause a margin deficiency. Changes to commissions/ fees are effective immediately upon either of: posting on the EPS website or email or other written notice to Customer. EPS shall pay credit interest to and charge debit interest from Customer at interest rates and terms on the EPS website. Customer funds will not be disbursed until after transactions are settled.
- Account Deficits: If a cash account incurs a deficit, margin interest rates will apply until the balance is repaid, and EPS has the right, but not the obligation, to treat the account as a margin account. Customer agrees to pay reasonable costs of collection for any unpaid Customer deficit, including attorneys’ and collection agent fees.
- Risks of Foreign Markets; After Hours Trading: Customer acknowledges that trading securities, options, futures, currencies or any product on a foreign market is speculative and involves high risk. There also are special risks of trading outside ordinary market hours, including risk of lower liquidity, higher volatility, changing prices, un-linked markets, news announcements affecting prices and wider spreads. Customer represents that Customer is knowledgeable and able to assume these risks.
- Knowledge of Securities, Warrants and Options; Corporate Actions: Customer acknowledges Customer’s responsibility for knowing the terms of any securities, options, warrants or other products in Customer’s account, including upcoming corporate actions (e.g., tender offers, reorganizations, stock splits, etc.). EPS has no obligation to notify Customer of deadlines or required actions or dates of meetings, nor is EPS obligated to take any action without specific written instructions sent by Customer to EPS electronically through the EPS website.
- Quotes, Market Information, Research and Internet Links: Quotes, news, research and information accessible through EPS (including through links to outside websites) (“Information”) may be prepared by independent Providers. The Information is the property of EPS, the Providers or their licensors and is protected by law. Customer agrees not to reproduce, distribute, sell or commercially exploit the Information in any manner without written consent of EPS or the Providers. EPS reserves the right to terminate access to the Information. None of the Information constitutes a recommendation by EPS or a solicitation to buy or sell. Neither EPS nor the Providers guarantee accuracy, timeliness, or completeness of the Information, and Customer should consult an advisor before making investment decisions. RELIANCE ON QUOTES, DATA OR OTHER INFORMATION IS AT CUSTOMER’S OWN RISK. IN NO EVENT WILL EPS OR THE PROVIDERS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES ARISING FROM USE OF THE INFORMATION. THERE IS NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE INFORMATION, INCLUDING WARRANTY OF MERCHANTIBILITY, WARRANTY OF FITNESS FOR A PARTICULAR USE OR WARRANTY OF NON-INFRINGEMENT.
- License to Use EPS Software: EPS grants Customer a non-exclusive, non-transferable license to use EPS Software solely as provided herein. Title to EPS Software and updates shall remain the sole property of EPS, including all patents, copyrights and trademarks. Customer shall not sell, exchange or transfer the EPS Software to others. Customer shall not copy, modify, translate, decompile, reverse engineer, disassemble or reduce to a human readable form, or adapt, the EPS Software or use it to create a derivative work, unless authorized in writing by an officer of EPS. EPS is entitled to immediate injunctive relief for threatened breaches of these undertakings.
- LIMITATION OF LIABILITY AND LIQUIDATED DAMAGES PROVISION: CUSTOMER ACCEPTS THE EPS SYSTEM “AS IS”, AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, PURPOSE OR APPLICATION; TIMELINESS; FREEDOM FROM INTERRUPTION; OR ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. UNDER NO CIRCUMSTANCES SHALL EPS BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, INCLUDING LOSS OF BUSINESS, PROFITS OR GOODWILL. EPS SHALL NOT BE LIABLE TO CUSTOMER BY REASON OF DELAYS OR INTERRUPTIONS OF SERVICE OR TRANSMISSIONS, OR FAILURES OF PERFORMANCE OF THE EPS SYSTEM, REGARDLESS OF CAUSE, INCLUDING, BUT NOT LIMITED TO, THOSE CAUSED BY HARDWARE OR SOFTWARE MALFUNCTION; GOVERNMENTAL, EXCHANGE OR OTHER REGULATORY ACTION; ACTS OF GOD; WAR, TERRORISM, OR EPS’S INTENTIONAL ACTS. CUSTOMER RECOGNIZES THAT THERE MAY BE DELAYS OR INTERRUPTIONS IN THE USE OF THE EPS SYSTEM, INCLUDING, FOR EXAMPLE, THOSE CAUSED INTENTIONALLY BY EPS FOR PURPOSES OF SERVICING THE EPS SYSTEM. IN NO EVENT SHALL EPS’S LIABILITY, REGARDLESS OF THE FORM OF ACTIONAND DAMAGES SUFFERED BY CUSTOMER, EXCEED THE HIGHEST TOTAL MONTHLYCOMMISSIONS PAID BY CUSTOMER TO EPS OVER THE 6 MONTHS PRIOR TO ANY INCIDENT.
- Customer Must Maintain Alternative Trading Arrangements: Computer-based systems such as those used by EPS are inherently vulnerable to disruption, delay or failure. CUSTOMER MUST MAINTAIN ALTERNATIVE TRADING ARRANGEMENTS IN ADDITION TO CUSTOMER’S EPS ACCOUNT FOR EXECUTION OF CUSTOMER’S ORDERS IN THE EVENT THAT THE EPS SYSTEM IS UNAVAILABLE. By signing this Agreement, Customer represents that Customer maintains alternative trading arrangements.
- DISCLOSURE STATEMENT: THIS STATEMENT IS FURNISHED TO YOU BECAUSE RULE 190.10(c) OF THE COMMODITY FUTURES TRADING COMMISSION REQUIRES IT FOR REASONS OF FAIR NOTICE UNRELATED TO EPS’S CURRENT FINANCIAL CONDITION: (A) YOU SHOULD KNOW THAT IN THE UNLIKELY EVENT OF THIS COMPANY’S BANKRUPTCY, PROPERTY, INCLUDING PROPERTY SPECIFICALLY TRACEABLE TO YOU, WILL BE RETURNED, TRANSFERRED OR DISTRIBUTED TO YOU, OR ON YOUR BEHALF, ONLY TO THE EXTENT OF YOUR PRO RATA SHARE OF ALL PROPERTY AVAILABLE FOR DISTRIBUTION TO CUSTOMERS; (B) NOTICE CONCERNING THE TERMS FOR THE RETURN OF SPECIFICALLY IDENTIFIABLE PROPERTY WILL BE MADE BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION; (C) THE COMMISSION’S REGULATIONS CONCERNING BANKRUPTCIES OF COMMODITY BROKERS CAN BE FOUND AT TITLE 17 OF THE CODE OF FEDERAL REGULATIONS PART 190.
- Consent To Accept Electronic Records And Communications
EPS provides electronic trade confirmations, account statements, tax information, proxy materials and other Customer records and communications (collectively, “Records and Communications”) in electronic form to the maximum extent permitted by applicable law. Electronic Records and Communications may be sent to Customer’s Euro Pacific Trader (“EPT”) or to Customer’s e-mail address, or for security purposes may be posted on the EPS website or on the secure website of one of EPS’s service providers and customer will need to log in and retrieve the Communication. By entering into this Agreement, Customer consents to the receipt of electronic Records and Communications. Such consent will apply on an ongoing basis and for every tax year unless withdrawn by Customer. Customer may withdraw such consent at any time by providing electronic notice to EPS through the EPS website. If Customer withdraws such consent, EPS will provide required Records and Communications (e.g., tax documents, proxy materials, etc.) in paper form upon request by telephone or via the EPS website. However, EPS reserves the right to require Customer to close Customer’s account if Customer withdraws consent to receiving electronic delivery of Records and Communications.
In order to trade using the EPS EPT, and to receive Records and Communications through the EPT, there are certain system hardware and software requirements. Since these requirements may change, Customer must periodically contact EPS for current system requirements. To receive electronic mail from EPS, Customer is responsible for maintaining a valid Internet e-mail address and software allowing customer to read, send and receive e-mail. Customer must notify EPS immediately of a change in Customer’s e-mail address by using those procedures to change a Customer e-mail address that may be available on the EPS website.
- This Agreement is governed by the laws of the British Virgin Islands, without giving effect to conflict of laws provisions. Courts of the British Virgin Islands have exclusive jurisdiction over disputes relating to this Agreement, except when arbitration is provided. IN ALL JUDICIAL ACTIONS, ARBITRATIONS OR DISPUTE RESOLUTION METHODS, THE PARTIES WAIVE ANY RIGHT TO PUNITIVE DAMAGES.
- Customer agrees to the provision of this Agreement in English and represents that Customer understands its terms and conditions. This Agreement contains the entire agreement between the parties, who have made no other representations or warranties. If any provision of this Agreement is unenforceable, it shall not invalidate other provisions. Failure of EPS to enforce any term or condition of this Agreement is not a waiver of the term/condition.
- Customer consents to recording of all telephone conversations. Customer acknowledges the Euro Pacific Privacy Statement and consents to collection/use of Customer information as described therein.
- Customer may not assign or transfer any rights or obligations hereunder without the prior written consent of EPS. Upon notice to Customer EPS may assign this Agreement to another broker-dealer or futures commission merchant. This Agreement shall inure to the benefit of EPS’s successors and assigns. EPS may terminate this Agreement or its services to Customer at any time. Customer may close its account upon notice to EPS electronically through the EPS website, but only after all positions are closed and all other requirements specified on the EPS website regarding account closure are satisfied.
- Customer authorizes EPS, directly or through third parties, to make any inquiries that EPS considers necessary to conduct business with Customer. This may include ordering a credit report and performing other credit checks in the event of any default or breach of the obligations herein by Customer, or verifying the information Customer provides against third party databases. Any information obtained is maintained in accordance with the Euro Pacific Group Privacy Statement.
- Mandatory Arbitration:
- This agreement contains a pre-dispute arbitration clause. By signing an arbitration agreement the parties agree as follows:
- ALL PARTIES TO THIS AGREEMENT ARE GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THE RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED.
- ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY’S ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED.
- THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT PROCEEDINGS.
- THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD. UNLESS, IN AN ELIGIBLE CASE, A JOINT REQUEST FOR AN EXPLAINED DECISION HAS BEEN SUBMITTED BY ALL PARTIES TO THE PANEL AT LEAST 20 DAYS PRIOR TO THE FIRST SCHEDULED HEARING DATE.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
- THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS FOR BRINGING A CLAIM IN ARBITRATION.
- IN SOME CASES, A CLAIM THAT IS INELIGIBLE FOR ARBITRATION MAY BE BROUGHT IN COURT.
- THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS AGREEMENT.
- Customer agrees that any controversy, dispute, claim, or grievance between EPS, any EPS affiliate or any of their shareholders, officers, directors employees, associates, or agents, on the one hand, and Customer or, if applicable, Customer’s shareholders, officers, directors employees, associates, or agents on the other hand, arising out of, or relating to, this Agreement, or any account(s) established hereunder in which securities may be traded; any transactions therein; any transactions between EPS and Customer; any provision of the Customer Agreement or any other agreement between EPS and Customer; or any breach of such transactions or agreements, shall be resolved by arbitration, in accordance with the rules then prevailing of any one of the following: (a) The Financial Industry Regulatory Authority; or (b) any other exchange of which EPS is a member, as the true claimant-in-interest may elect. If Customer is the claimant-in-interest and has not selected an arbitration forum within ten days of providing notice of Customer’s intent to arbitrate, EPS shall select the forum. The award of the arbitrators, or a majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.
- 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:
- the class certification is denied; or
- the class is decertified; or
- 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.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPH 34. BY SIGNING THIS AGREEMENT I ACKNOWLEDGE THAT THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AND THAT I HAVE RECEIVED, READ AND UNDERSTOOD THE TERMS THEREOF.