CUSTOMER AGREEMENT
Exhibit 10.4
To: ADM Investor Services, Inc. 000 Xxxx Xxxxxxx Xxxx. Xxxxxxx, XX 00000
Gentlemen:
In consideration of the acceptance by ADM Investor Services, Inc. (“ADMIS”) acting as broker, of
one or more accounts of the undersigned (“Customer”) for the purchase or sale of commodity futures,
commodity options, forward contracts, foreign exchange, physical or cash commodities, and exchange
for physical (“EFP”) transactions (Collectively “contracts”) it is agreed as follows:
| 1. | Customer acknowledges the following: |
| (a) | The purchase and sale of commodity futures contracts, exchange-traded
and dealer options (commodity options) is speculative, involves a high degree of
risk and is suitable only for persons who can assume the risk of loss in excess of
their margin deposits or of the entire option cost. Customer understands that
because of the low margin normally required in commodity futures trading, price
changes in commodity futures contracts may result in significant Customer losses,
which losses may substantially exceed Customer’s margin deposits and any other
deposits he may make. Customer also acknowledges that he has received, has read
and understands this agreement. |
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| (b) | Customer authorizes ADMIS to execute such transactions for the
Customer’s account and exercise commodity options for Customer’s account in
accordance with Customer’s oral or written instructions, ADMIS shall have the right
to refuse to accept any orders. ADMIS shall also have the right to take record all
telephone conversations with Customer. |
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| (c) | Customer understands that ADMIS or its affiliates will at times act as
principal in regard to cash, forward, or foreign exchange transactions. |
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| (d) | ADMIS shall not be responsible to Customer in any case for a floor
brokers’ inability to execute orders, or for error or negligence on the part of
floor brokers who are not employees of ADMIS. Furthermore, ADMIS is not obligated
to quote a price for any principal transaction. |
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| (e) | The Customer acknowledges that the execution of a futures contract
always anticipates making or accepting delivery. Customer hereby authorizes ADMIS
to take all action deemed necessary by ADMIS in the event ADMIS takes physical
delivery for customer and customer hereby agrees to indemnify ADMIS from all costs
associated therewith. ADMIS may, in its sole discretion, liquidate any short
position in Customer’s account if Customer has not delivered to ADMIS certificates,
receipts, or other appropriate instruments of delivery at least seven days prior to
the last trading day of the futures contract. |
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| (f) | Customer acknowledges the right of ADMIS to limit, without notice to
Customer, the number of open positions which Customer may maintain or acquire
through ADMIS. |
| 2. | Customer shall deposit with ADMIS (1) the applicable initial and maintenance
requirements; pay interest, commission charges in effect from time to time, (which
commissions may be shared by more than one of Customer’s agents) and other costs to
ADMIS occasioned by carry8ng the account of the Customers; (2) deposit the amount of
any deficit balance that may result from transactions executed by ADMIS for Customer’s
account, and (3) pay the interest and service charges on any Customer deficit balances
at the rates customarily charged by ADMIS together with ADMIS’s costs and attorney’s
fees incurred in collecting any such deficit or defending claims brought by Customer in
which ADMIS is the prevailing party. |
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| 3. | Customer understands and acknowledges that ADMIS acts as agent for all
transactions which are executed on commodity futures exchanges and among other
requirements, is financially liable to the exchange clearing houses of which it is a
member and to the clearing members through which it clears transactions on exchanges of
which it is not a clearing member, for deficit balances occurring in the Customer’s
accounts; because of this, ADMIS is the guarantor of the financial responsibility of
the Customer. Therefore, Customer agrees to hold ADMIS harmless with respect to any
and all losses sustained by ADMIS resulting from deficit balances which may occur in
the Customer’s account. |
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| 4. | Customer shall, without notice or demand from ADMIS, at all times, maintain
adequate margins, so as continually to meet the margin requirements established by
ADMIS. Such margin requirements established by ADMIS, in its sole and absolute
discretion, may exceed the margin requirements set by any commodity exchange, or other
regulatory authority. Customer agrees, when required, to wire transfer margins to
ADMIS or any monies so required, and to furnish ADMIS with names of bank officers for
immediate verification of such transfers. |
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| 5. | If, at any time, Customer’s account does not contain the amount of margin
required by ADMIS, or by any exchange, clearing house or other regulatory authority,
ADMIS may, at its sole and absolute discretion, at any time or from time to time,
without notice to Customer, close out Customer’s open positions in whole or in part or
take any other action it deems necessary to satisfy such requirements, including, but
not necessarily limited to, transferring funds from other accounts of Customer
including transfers between CFTC Segregated and other accounts. Failure of ADMIS to so
act in such circumstances, in whole or in part, shall not constitute a waiver of its
rights to do so any time or from time to time thereafter, nor shall ADMIS be subject to
any liability to Customer for its failure so to act. In addition, ADMIS has the right,
but not the obligation, to liquidate the account(s) upon receipt of notice of the death
of Customer (if applicable). |
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| 6. | All monies, securities, negotiable instruments, forward contracts, foreign
exchange contracts physical or cash contracts, commodity options, open positions in
futures contracts and commodities, or other property now or at any future time in
Customer’s account, or held by ADMIS or its affiliates for Customer, are hereby pledged
with ADMIS, and shall be subject to a security interest in ADMIS’s favor to secure any
indebtedness, at any time, owing from Customer to ADMIS without regard to whether or
not ADMIS or its affiliates has made advances with respect to such property. Customer
will not cause or allow any of the property held in his accounts to be subject to any
other liens, security interests, mortgages or other encumbrances without the express
written approval of ADMIS. |
| 7. | Customer understands that obligations arising out of transactions denominated
and/or paid for in currencies other than U.S. Dollars may be converted to U.S. Dollars
at the discretion of AMIS at an exchange rate determined by ADMIS at its discretion
based on prevailing market rates and Customer will be required to pay ADMIS in U.S.
Dollars. |
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| 8. | Customer acknowledges that: (1) any market recommendations and information
communicated to Customer by ADMIS do not constitute an offer to sell, or the
solicitation of an offer to buy any commodity, or any commodity futures contract; (2)
such recommendations and information, although based upon information obtained from
sources believed by ADMIS to be reliable, may be incomplete and may not be verified;
and (3) ADMIS makes no representation, warranty or guarantee as to, and shall not be
responsible for, the accuracy or completeness of any information or trading
recommendation furnished to Customer. Customer understands that ADMIS and/or its
officers, directors, affiliates, stockholders or representatives may have a position or
positions in and may intend to buy or sell commodities or commodity futures contracts,
which are the subject of market recommendations furnished to Customer, and that the
position or positions of ADMIS or any such officer, director, affiliate, stockholder,
or representative may or may not be consistent with the recommendations furnished to
Customer by ADMIS. |
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| 9. | All transactions by ADMIS on Customer’s behalf shall be subject to the
applicable constitutions, rules, regulations, customs, usages, rulings, and
interpretations of the exchange or markets on which such transactions are executed by
ADMIS or its agents for Customer’s account (such as the Board of Trade of the City of
Chicago, The Chicago Mercantile Exchange, and the MidAmerica Commodity Exchange and the
clearing houses affiliated with each, if any) and to all applicable governmental acts
and statutes (such as the Commodity Exchange Act or the Commodity Futures Trading
Commission Act of 1974) and to rules and regulations made thereunder, ADMIS shall not
be liable to Customer as a result of any action taken by ADMIS, or its agents, to
comply with any such constitution, rule, regulation, custom, usage, ruling,
interpretation, act or statue. If Customer is subject to regulation, Customer agrees
that ADMIS has no duty to ascertain or ensure that Customer is in compliance with any
governing statutes or rules. |
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| 10. | If, at any time, Customer shall be unable to delivery to ADMIS any security,
commodity or other property previously bought or sold by ADMIS on Customer’s behalf,
Customer authorized ADMIS, in its discretion, to borrow or to buy any security,
commodity, or other property necessary to make delivery thereof, and Customer shall pay
and MIS, in its discretion, to borrow or to buy any security, commodity, or other
property necessary to make delivery thereof, and Customer shall pay and indemnify ADMIS
for any costs, losses, and damages (including consequential costs, losses and damages)
which ADM may sustain thereby and any premiums which ADMIS may be required to pay
thereon,
and for any costs, losses and damages (including consequential costs, losses, and
damages) which ADMIS may sustain thereby and any premiums which ADMIS may be required to
pay thereon, and for any costs, losses and damages (including consequential costs,
losses and damages) which ADMIS may sustain from its inability to borrow or buy any such
security, commodity or other property. |
| 11. | Customer acknowledges and agrees that ADMIS shall not be responsible to
Customer for any losses resulting from conduct or advice (including but not limited to
errors and negligence) on the part of any broker/dealer, futures commission merchant,
independent introducing broker, commodity trading advisor, or any other person or
entity introducing Customer to ADMIS or having trading authority over the account of
Customer at ADMIS. Customer specifically agrees that ADMIS shall have no obligation to
supervise the activities of any such person or entity and Customer will indemnify ADMIS
and hold ADMIS harmless from and against all losses, liabilities, and damages
(including attorney’s fees) incurred by ADMIS as a result of any actions taken or not
taken by such person or entity. |
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| 12. | Customer authorizes ADMIS to contact such banks, financial institutions, credit
agencies, and other references as ADMIS shall deem appropriate from time to time verify
the information regarding Customer which may be provided by Customer. Customer
understands that an investigation may be made pertaining to his personal and business
credit standing and that Customer may make a written request within a reasonable period
of time for complete and accurate disclosure of its nature and scope. |
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| 13. | ADMIS shall not be responsible for delays in the execution of orders due to
breakdown, or failure of transmission, or communication facilities, or to any other
cause beyond ADMIS’s control. |
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| 14. | Confirmation of trades, contracts statements of account, margin calls, and any
other notices sent by ADMIS to customer shall be sent to the address shown in and to
the attention of the person(s) named in the “Customer Account Documentation” and they
shall be conclusively deemed accurate and complete and customer waives and releases any
claim relating thereto, if not objecting to, in writing, prior to the opening of
trading on the contract market on which such transaction occurred on the next business
day following the date on which such communication was first received. The price at
which an order is executed shall be binding notwithstanding the fact an erroneous
report is made. An order which was executed by in error reported not executed shall be
binding. Customer shall direct all objections to ADM Investor Services, Inc., 000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx #0000X, Xxxxxxx, Xxxxxxxx 00000, (000) 000-0000. |
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| 15. | All transactions for or on Customer’s behalf shall be deemed to be included in
a single account whether or not such transactions are segregated on ADMIS’s records
into separate accounts, either severally or jointly with others, for purposes including
reportable positions as required by regulatory authorities. |
| 16. | The Agreement, including all authorizations, shall inure to the benefit of
ADMIS, its successors and assigns and shall be binding upon Customer and Customer’s
personal representatives, executors, trustees, administrators, agents, successors, and
assigns. In the event that Customer’s financial condition becomes unsatisfactory to ADMIS, in its
sole discretion, or that a petition, voluntary or involuntary, in bankruptcy to
reorganize, or to effect a composition or extension, is filed by or against Customer, or
in the event a receiver is appointed of Customer’s property or business in any
proceeding whatsoever, state or federal, or in the event of Customer’s legal incapacity
or death (and whenever the Customer consists of more than one person, then upon the
occurrence of any of the aforementioned contingencies to any of them), ADMIS may, at its
sole and absolute discretion, either continue to carry or close and liquidate the
account of Customer, including the covering of short positions, exercise of options or
offset of forward contracts and foreign exchange contracts subject to no liability to
the personal representatives, executors, trustees, administrators, agents, successors or
assigns of Customer for the use of such discretion. |
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| 17. | The rights and remedies conferred upon the parties hereto shall be cumulative,
and the exercise or waiver of any thereof shall not preclude or inhibit the exercise of
additional rights or remedies. |
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| 18. | Customer agrees that ADMIS may, from time to time, change the account number
assigned to any account covered by this Agreement, and that this Agreement shall remain
in full force and effect. Customer agrees further that this account, as well as all
additional accounts opened by him at ADMIS, shall be covered by this same Agreement
with the exception of any new account for which a new Customer Agreement is signed. |
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| 19. | Subject to the Arbitration Agreement between ADMIS and Customer, Customer
agrees that any civil action or other legal proceeding between ADMIS or its employees,
agents, representatives, affiliated brokers and/or associated persons, on the one hand,
and Customer, on the other hand, arising out of or relating to this Agreement,
transactions hereunder, or Customer’s account shall be brought, heard and resolved in
the Xxxx County Circuit Court located in Chicago, Illinois and Customer waives the
right to have such proceeding transferred to any other location. In addition, Customer
waives the right to trial by jury in any such action or proceeding. Any such action or
proceeding shall be governed by the law of the State of Illinois. No action, including
arbitration, and regardless of form arising out of or relating to this Agreement,
transactions hereunder, or Customer’s account may be brought by Customer more than one
year after the cause of action arose (regardless of the date of discovery of the
alleged injury), provided, however, that any action brought under the provisions of
Section 14 of the Commodity Exchange Act may be brought at any time within two years
after the cause of action accrues. |
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| 20. | Customer represents that (1) he/she is (or, if Customer is a corporation, that
each officer and director is, if Customer is a partnership, that each partner is) an
adult of sound mind and is under no legal disability which would prevent him/her from
trading in commodities, commodity futures contracts, options contracts, forward
contracts, foreign exchange or other physical or cash contracts therein or entering
into this Agreement; (2) he/she is (or its officers and directors or its partners are)
authorized to enter into this Agreement. |
| 21. | Customer warrants the accuracy of the information contained in the account
application to be complete, true and correct and agrees that Customer will promptly
notify ADMIS of any material change in the information. Customer further warrants that
no one except Customer has an interest in the account and that Customer has full power
and authority to enter into this Agreement and to engage in the transactions of the
kind contemplated herein. |
Name (Print)
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Xxxxxxx X. Xxxxxxx
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Name (Print) |
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Name (Signature)
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/s/ Xxxxxxx X. Xxxxxxx
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Name (Print) |
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| Date 7-29-08 | Date |
ARBITRATION
Any controversy between ADM Investor Services, Inc. (“ADMSI”) or its employees, agents,
representatives, affiliated brokers, or associated persons, on the one hand, and the Customer, on
the other hand, arising out of or related to Customer’s account, or to this agreement or the breach
thereof, shall be settled only by arbitration in accordance with the rules of National Futures
Association, the Commodity Futures Trading Commission, or the exchange upon which the transaction
complained of was executed, as Customer may elect. If Customer does not make such an election by
registered mail addressed to ADMIS within 45 days of demand by ADMIS that Customer make such an
election, then ADMIS may make such an election. Any proceeding must be commenced within one year
after the transaction or occurrence complained of, regardless of the date of discovery of the
alleged injury. In such proceeding both Customer and ADMIS waive any right to punitive damages.
Judgment upon the arbitration award shall be final and may be entered in any court having
jurisdiction thereof.
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT LITIGATION,
REPARATIONS AT THE COMMODITY FUTURES TRADING COMMISSION (CFTC) AND ARBITRATION CONDUCTED BY A
SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY ARBITRATION MAY IN SOME CASES
PROVIDE MANY BENEFITS TO CUSTOMERS, INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS AND FINAL
RESOLUTION OF DISPUTES WITHOUT INCURRING SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH
CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF ARBITRATION AND THAT YOUR CONSENT TO THIS
ARBITRATION AGREEMENT BE VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU: (1) MAY BE WAIVING YOUR RIGHT TO XXX IN A COURT OF LAW; AND
(2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY CLAIMS OR COUNTERCLAIMS WHICH YOU AR ADMIS MAY
SUBMIT TO ARBITRATION UNDER THIS AGREEMENT. YOU ARE NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT
INSTEAD TO PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER SECTION 14 OF THE COMMODITY
EXCHANGE ACT WITH RESPECT TO ANY DISPUTE WHICH MAY BE ARBITRATED PURSUANT TO THIS AGREEMENT. IN
THE EVENT A DISPUTE ARISES, YOU WILL BE NOTIFIED IF ADMIS INTENDS TO SUBMIT THE DISPUTE TO
ARBITRATION. IF YOU BELIEVE A VIOLATION OF THE COMMODITY EXCHANGE ACT IS INVOLVED AND IF YOU
PREFER TO REQUEST A SECTION 14 “REPARATIONS” PROCEEDING BEFORE THE CFTC, YOU WILL HAVE 45 DAYS FROM
THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT ELECTION.
YOU NEED NOT SIGN THIS AGREEMENT TO OPEN AN ACCOUNT WITH ADMIS. SEE 17 CFR 180.1-180.5.
Name (Signature)
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/s/ Xxxxxxx X. Xxxxxxx
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Name(Signature) |
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| Date 7-29-08 | Date | |||||||||
