1. Services and Fees. TradeStation Securities provides futures brokerage services as an introducing broker through its clearing firm(s) ("Clearing Firm") on a fully disclosed basis. TradeStation Securities agrees to provide you with futures brokerage services which may include providing you with one or more automated or electronic execution systems (EES) or other services (collectively, the "Services") pursuant to the terms and conditions of your agreement with the Clearing Firm and this agreement, and/or your agreement with our affiliate that provides TradeStation® technology and service. You agree that TradeStation Securities and the Clearing Firm may receive fees and commissions for said securities brokerage services pursuant to their respective rate schedules, which are subject to change.
2. Laws, Rules, Regulations and Indemnification. All of your transactions shall be subject to all laws, rules and regulations of any state, federal, regulatory or self-regulatory body, including, without limitation, the Commodity Exchange Act, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations of the Commodities Futures Trading Commission (“CFTC”), the National Futures Association (“NFA”), the Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority (“FINRA”), the Board of Governors of the Federal Reserve System, the Clearing Firm, and any exchanges, markets or other clearing houses where any transaction is executed. You agree to indemnify TradeStation Securities and its officers, directors, shareholders, employees, affiliated companies and agents from all claims, including reasonable attorneys’ fees and costs, arising out of your use of any EES or other Services provided by TradeStation Securities, its affiliates or subsidiaries which violate, or conflict with, any of such laws, rules or regulations.
3. Use. Your right to use any EES or other Services provided by TradeStation Securities (or its affiliates) or the Clearing Firm is limited to executing your own proprietary trades. You shall be the only authorized user of any Services provided by TradeStation Securities. All orders executed through any EES or other Services provided to you shall be deemed authorized by you and executed with the understanding that an actual purchase or sale is intended and that you are unconditionally and irrevocably accepting a valid and binding legal obligation. You agree that all purchases and sales shall be for your account in accordance with your oral, written or electronic orders or instructions. You hereby waive any and all defenses that any such order or instruction was not in writing as may be required by the Statute of Frauds or any other similar law, rule or regulation.
4. Disclosure of Status. You agree to promptly notify TradeStation Securities in writing if you are now or if you become: (a) registered or qualified with the NFA, FINRA, SEC, CFTC, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association; (b) engaged as an "investment advisor" as that term is defined in Section 201 of the Investment Advisors Act of 1940 (whether or not registered or qualified under that act); or (c) employed by a bank or other organization exempt from registration under federal and state securities laws to perform functions that would require you to be so registered or qualified if you were to perform such functions for an organization not so exempt.
5. Representations. You represent that you are not an employee of any exchange, nor of any corporation in which any exchange owns a majority of the capital stock, nor of a member of any exchange or self-regulatory agency, or of any firm or member corporation registered on any exchange, nor of a bank, trust company, insurance company, or of any corporation, firm or individual engaged in the business of dealing either as broker or as principal in futures securities, bills of exchange, acceptances or other forms of commercial paper, and that you will promptly notify TradeStation Securities in writing if you become so employed. You represent that you will immediately notify TradeStation Securities in writing if you or a member of your immediate family becomes registered or employed in any capacity with an NFA or FINRA member firm.
6. Assumption of Risk/Your Discretion. You acknowledge and agree that you have independently evaluated any EES or other Services you intend to use. You agree and acknowledge that any transactions contemplated or completed through any EES or any other Services provided by TradeStation Securities or its affiliate shall be at your sole discretion and risk, regardless of any information, comments or guidance obtained in any form from TradeStation Securities or any of its officers, directors, employees or agents, or from any market data services or charting, technical analysis or other trading strategy tool products, services or platforms of TradeStation Securities or another party (including its affiliate) which TradeStation Securities may provide to you in connection with the Services. You expressly acknowledge and agree that TradeStation Securities shall not provide, nor will you rely on any perceived, legal, tax, accounting, investment, strategy or other advice regarding any potential or actual transaction. You further acknowledge and agree that while you may be able to access investment research reports, market data services or charting, technical analysis or other trading strategy tool products, services or platforms through the EES or other Services provided by TradeStation Securities, including computerized Services, the availability of such information does not constitute a recommendation to buy or sell any particular commodities, contracts or securities or the success of any trading strategy tools. Any investment decisions you make will be based solely on your own evaluation of your financial circumstances and investment objectives.
7. Monitoring and Review. It shall be your responsibility to monitor your orders and transactions and review all confirmations, statements, notices, reports, proxy materials or other communications related to any transaction ordered or executed through any EES or other Services provided by TradeStation Securities. It shall be your obligation to make prompt written demand to TradeStation Securities for any such item not received.
8. Market or Other Data. You acknowledge and agree that each national or regional exchange or association asserts a proprietary interest in all of the market or other data it furnishes to parties that disseminate said data. You acknowledge and agree that neither TradeStation Securities, nor any exchange or association or any supplier of market or other data, guarantees the timeliness, sequence, accuracy, completeness, reliability or content of market or other information, or messages disseminated to, by or through any party, including any internet service provider. You acknowledge and agree that neither TradeStation Securities nor any exchange or association or any other supplier of market or other data represents or warrants that the service will be uninterrupted or error free. You agree that your use of any market or other data is at your sole risk.
Neither TradeStation Securities nor any exchange or data provider shall be liable for any inaccuracy, error or delay in, or omission of, any such data, information or message, or the transmission or delivery of any such data, information or message, or any loss or damage arising or occasioned therefrom, regardless of the source, cause or reason therefor.
You understand that these terms of this agreement may be enforced directly against you by the securities and commodities exchanges and associations or other parties providing market or other data. You shall use any such data or information (including quotes) only for your individual use and shall not furnish such data to any other person or entity.
9. Disclaimer of Warranties. You acknowledge and agree that neither TradeStation Securities nor its employees or agents make any warranties or representations with respect to any EES or other Services provided by TradeStation Securities, including any related hardware, software, communication system or any charting, technical analysis or other trading strategy tool products, services or platforms. TRADESTATION SECURITIES' SERVICES AND ANY INFORMATION, DATA, CHARTING, TECHNICAL ANALYSIS OR OTHER TRADING STRATEGY TOOL PRODUCTS, SERVICES OR PLATFORMS ARE PROVIDED ON AN AS-IS, WHERE-IS, AS-AVAILABLE BASIS AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, OR FREEDOM FROM ERROR OR INTERRUPTION), OR ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
10. Technical Difficulties or Extraordinary Events. You agree that TradeStation Securities shall not be liable for, and you agree to indemnify and hold TradeStation Securities and its employees, officers, directors, shareholders and agents harmless from, any and all claims or loss(es), actual or perceived, caused directly or indirectly by any equipment or software failure, failure of any Internet service provider, operator error, electronic or mechanical equipment, hardware, communication system or other system, or any component thereof, telephone or other interconnect problems, unauthorized access, theft, security breach, government restriction, exchange or market regulation, suspension of trading, war, strike or other labor dispute, that might prevent you from utilizing any EES or other Services provided by TradeStation Securities, including without limitation, the inability to initiate, execute, cancel or modify any order or transaction. You further acknowledge and agree that, except as expressly set forth in this agreement, you will not be compensated by TradeStation Securities for any "lost opportunity" (e.g., an increase in the value of a stock you wished to purchase) resulting from any inability or delay in your ability to enter or execute any order due to any technical or other difficulty, even if such difficulty could have been prevented by TradeStation Securities. In all matters you hereby agree that any claim for punitive damages shall be limited to the maximum extent possible according to the rules of the FINRA or NFA and/or the rules of the arbitration forum where the claim is heard.
11. Presumptive 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 specify in writing in any form. Modifications and amendments of or to this agreement may be posted on TradeStation Securities' Web site and shall be effective as of the date posted. All communications so sent, whether by posting, mail, e-mail, telegraph, messenger or otherwise, shall be deemed received on the date sent or published, whether or not actually received or reviewed.
12. Limitations and Restrictions. You are authorized to use the EES and other Services and materials provided by or through TradeStation Securities for your own needs only, and you are not authorized to resell access to any such services or materials or to make copies of any such materials for sale to or use by others. You shall not delete any copyright or other intellectual property rights notices from any such materials.
13. Ownership and Confidentiality. You acknowledge and agree that nothing in this agreement or any other agreement with TradeStation Securities shall constitute the sale of any equipment, software, hardware, procedure or system utilized by any EES or other Services provided by TradeStation Securities (collectively, the "Technology"). You hereby agree to keep confidential and not disclose, copy, transfer, reverse engineer, or modify any Technology, whether or not said Technology is actually owned by TradeStation Securities or a third party. You expressly agree that in connection with any dispute the Technology and TradeStation Securities' other trade secrets or confidential information shall be disclosed only upon issuance of protective order(s) limiting disclosure to maintain confidentiality.
14. Amendment. You acknowledge and agree that TradeStation Securities may, at any time, in its sole discretion, modify or amend the terms of this agreement or your access to any EES or other Services provided by TradeStation Securities. Said modifications or amendments shall be effective upon written notice via mail, e-mail, or posting on TradeStation Securities' Web site delivered or published pursuant to paragraph 11. Your continuance to accept or use any EES or other Services after said modification or amendment shall be deemed your acceptance of all said modifications or amendments.
15. Termination, Trading Restrictions, Liquidation. You acknowledge and agree that TradeStation Securities may at any time, in its sole discretion and without prior notice, terminate your account or restrict your trading for any reason. Without limitation on the breadth of the foregoing rights, TradeStation Securities may in its sole discretion restrict trading in your account to closing transactions only. The restriction and/or closing of an account will not affect the rights and/or obligations of either party incurred prior to the date the account is closed. In addition, in order to satisfy any of your outstanding or potential obligations to TradeStation Securities, its Clearing Firm, or its affiliates, TradeStation Securities may, in its sole discretion, and without prior notice, call or demand, or instruct its Clearing Firm to use, apply, sell or transfer, any and all securities or other property (including, without limitation, fully-paid securities and cash) in your account(s).
16. Monitoring and Recording Conversations. All communications between you and TradeStation Securities, or between you and any affiliate or Clearing Firm of TradeStation Securities, by telephone, computer link, "live chat" or any other satellite or telecommunications device or method, may or will be monitored, recorded and archived by TradeStation Securities (or its affiliate or Clearing Firm), and may be used and shall be admissible in connection with any investigation, inquiry or dispute that may arise, or for any valid or legitimate business purpose that is not violative of TradeStation Securities' privacy policy (which has been included in your application materials and is easily accessible from most pages of the TradeStation.com Web site). You voluntarily and knowingly acknowledge and irrevocably consent to all of such monitoring, recording and archiving of your communications with TradeStation Securities, its affiliates and its Clearing Firm, and acknowledge and agree that no further notice or consent is necessary.
17. Power of Attorney. You hereby irrevocably appoint TradeStation Securities, with full power as your true and lawful attorney-in-fact, to the full extent permitted by law, for the purpose of carrying out the provisions of this agreement and taking any action and executing any instrument that TradeStation Securities deems reasonably necessary or advisable to accomplish the purposes of this agreement.
18. Independence. Nothing in this agreement shall be construed as, or to create, a joint venture, agency, partnership or other similar relationship between the parties.
19. Choice of Law. Except as may be required by the Clearing Firm, you acknowledge and agree that this agreement and its enforcement shall be governed by the laws of the State of Florida. Also, see paragraph 20 below.
20. Jurisdiction, venue and waiver of jury trial. EXCEPT AS MAY BE REQUIRED BY THE CLEARING FIRM, YOU AGREE THAT ANY CONTROVERSY BETWEEN YOU AND TRADESTATION SECURITIES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE MANNER OF RESOLUTION, SHALL BE ARBITRATED, LITIGATED (TRIED IN A COURT OF LAW), OR OTHERWISE RESOLVED BY A TRIBUNAL LOCATED IN THE SOUTHERN DISTRICT OF FLORIDA. IN ADDITION, YOU HEREBY WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. You agree to pay all expenses, including attorney’s fees, incurred by TradeStation Securities: (a) to defend any unsuccessful claim you bring against TradeStation Securities, or any of its affiliates, or (b) to collect any debit balances in your accounts(s). No legal or administrative action arising out of this contract may be commenced by anyone more than one (1) year after any claim arises. You hereby expressly acknowledge that this Agreement is made in the State of Florida and, further, you hereby submit and consent to jurisdiction of your person in the Courts of the State of Florida (federal and state) and shall be amenable to service of summons and other legal process of, and emanating from, the State of Florida. Except as may be required by the Clearing Firm, the validity, construction and enforcement of this agreement shall be governed and construed in accordance with the substantive laws of the State of Florida without reference to the principles of conflicts of laws.
21. AGREEMENT TO SHORTEN STATUTES OF LIMITATIONS. You and TradeStation Securities agree that no action in law, equity, arbitration or administrative proceeding arising out of this agreement, any transactions effected pursuant to this agreement or the relationship of you with TradeStation Securities, may be commenced more than one (1) year after the aggrieved party knew or should have known a cause of action existed. You acknowledge that you are expressly agreeing to waive the two-year statute of limitations provided by the Commodity Exchange Act, including the two-year time period for commencing a Commodity Futures Trading Exchange reparation proceeding, and any and all other applicable statutes of limitations exceeding one year, including but not limited to, any statutory or common law state or federal statute of limitations, the statute of limitations provided by the National Futures Association for commencing an arbitration action, and the statute of limitations for initiating arbitration actions before contract markets. You understand that your agreement with this paragraph is not necessary to open an account with TradeStation Securities.
22. Binding Agreement/Assignment. You hereby acknowledge and agree that this agreement and all the terms herein shall inure to the benefit of and be binding upon each party and their respective estates, heirs, executors, administrators, personal representatives, successors and assigns. TradeStation Securities may assign its rights and duties under this agreement without giving you notice, including a transfer of your account and open positions to another firm, and you hereby consent to any such assignment or transfer.
23. Severability. If any term, provision or condition ("term") of this agreement shall be held to be invalid or unenforceable by reason of any law, rule, administrative order or decision by any court, or regulatory or self-regulatory agency or body, or in arbitration, said term shall be deemed modified only to such extent as is necessary to correct the invalidity or unenforceability and shall not affect the validity and enforceability of this agreement or any other term of this agreement.
24. Waiver. Except as specifically permitted in this agreement, no provision or condition of this agreement can be, or should be deemed to be, waived, altered, modified or amended unless specifically agreed to in writing by a duly authorized officer of TradeStation Securities. TradeStation Securities' failure to enforce any provision or condition of this agreement shall not be deemed a waiver of the requirements of said provision or condition or any other provision or condition.
25. Headings. The heading of each paragraph hereof is for descriptive purposes only and shall not be deemed to modify or qualify any of the rights or obligations set forth in such provision.
26. Trademarks. TradeStation®, EasyLanguage® and The Leader in Rule-Based Trading™ are registered trademarks of TradeStation Technologies, Inc., an affiliate of TradeStation Securities, and are used by TradeStation Securities pursuant to a trademark license.
27. Automated Trading. Automated trading functionality is designed to help you follow/track more securities and to assist in removing emotions from, and increase efficiencies in, your trading. Automated trading functionality is not designed to allow you to leave your computer unattended. If you, or any person you have authorized to trade your account, uses any automated trading functionality, you hereby acknowledge and agree that there are numerous factors that may cause the automated trading functionality to send orders that you do not want and/or fail to send orders that you do want (including, without limitation, ISP failure, power failures or surges, erroneous data, improperly designed strategies, and software or system design limitations, flaws or errors). You hereby acknowledge and assume all risks, both known and unknown, associated with using any automated trading functionality and agree that it is your responsibility to understand precisely how it works before using it, to monitor the trading activity in your account at all times, and to immediately take corrective action when necessary.
28. Consent to Identification Procedures. You voluntarily and knowingly consent to the following: TradeStation Securities may use your name, address, social security number, date of birth, home telephone number and/or other biographical or personal information about you (collectively, "Personal Information") to comply with applicable federal, state, local, quasi-governmental, self-regulatory and other laws, rules, regulations, recommendations, interpretations, authorizations, licenses and registrations, or for any valid or legitimate business purpose. The purposes for the use of Personal Information include, but are not necessarily limited to, verification of your identity and other factual information you present to us, verification that you are not listed as a specially designated national or blocked national by the Department of Treasury's Office of Foreign Asset Control (OFAC), and to investigate or verify your creditworthiness and history with legal and administrative authorities. Whatever procedures are used by TradeStation Securities shall not be violative of the terms of its privacy policy (which has been included in your application materials and is easily accessible from most pages of the TradeStation.com Web site).
29. Use of Investment Advisors. If you have an agreement with an investment or trading advisor (an "investment advisor") whom you have engaged to invest and trade your funds and assets on your behalf, and whom you have authorized to trade your account with TradeStation Securities, you represent, warrant, acknowledge and agree that: (a) as between you and TradeStation Securities, solely you are fully responsible for all acts, omissions and decisions made by your investment advisor with respect to your account, and you shall fully indemnify and hold harmless TradeStation Securities, its affiliates and its Clearing Firm against and from any and all claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys' fees and costs) that arise from, or relate to, any of such acts, omissions or decisions, including, but not limited to, claims, damages, liabilities, losses, costs or expenses assertible or suffered by you or your trading account, and claims which others may assert by or through you or on your behalf, or on their own behalves; and (b) your investment advisor has given us instructions, which may be changed by your investment advisor from time to time, concerning amounts that are to be withdrawn from your account(s) and paid to your investment advisor (or your investment advisor's account with us) as and for your investment advisor's fees, charges or costs payable by you pursuant to your agreement with your investment advisor, and TradeStation Securities is authorized by you to rely fully and completely upon your investment advisor's instructions with no obligation or responsibility to verify the authenticity, validity or accuracy of such instructions either with you or any other person or entity, or any document or other material or potential source of such information. You acknowledge and agree that if your investment advisor untimely or erroneously allocates trades to your account, your account may be charged $25.00 each time that occurs, and that your recourse in that event is solely to your investment advisor.
30. Program Trading. You understand and acknowledge that TradeStation Securities offers neither arbitrage accounts nor proprietary systems for Program Trading (or any other purpose).
31. Privacy Policy. You acknowledge receipt of the TradeStation Securities Privacy Policy (“Privacy Policy”) accessible from most pages on the TradeStation.com Web site. You also agree to receive annual notices of the Privacy Policy via the TradeStation.com Web site and shall monitor the TradeStation.com Web site for revisions to the Privacy Policy.
32. Cumulative Rights. The rights, remedies, benefits and privileges of TradeStation Securities under (a) this agreement, (b) any other written agreement or document executed or delivered by you, (c) any agreement with any Clearing Firm (under which you hereby irrevocably and unconditionally agree that TradeStation Securities is a third-party beneficiary that enjoys all of the same rights, remedies, benefits and privileges of the Clearing Firm under the agreement with the Clearing Firm, whether or not such third-party beneficiary rights, remedies, benefits or privileges are expressly stated in the agreement with the Clearing Firm), and (d) any written agreement with an affiliate of TradeStation Securities (collectively, the "Related Agreements") are cumulative and shall be interpreted to convey to and upon TradeStation Securities the broadest, most expansive, most enforceable rights, remedies, benefits and privileges. Any inconsistencies or conflicts between or among any of the Related Agreements shall be disregarded, as TradeStation Securities may at any time, or from time to time, choose, so that TradeStation Securities may enjoy to the fullest extent possible the right, remedy, benefit or privilege that it, at any time or from time to time, seeks to assert, enforce or avail to itself.