Tradovate Customer Agreement
Tradovate Customer Agreement
Tradovate Customer Agreement
ELECTRONIC SIGNATURE
Please take a moment to read and acknowledge your understanding and acceptance of the Federal Electronic Signatures In Global and
National Commerce Act (E-Sign)
Under the Federal Electronic Signatures in Global and National Commerce Act, before we may accept your account agreement and
related documents electronically, we must provide you with the following information and you must affirmatively agree and not withdraw
such agreement.
By electronically signing our account agreement and related documents, you acknowledge receipt of the Commodity Futures Trading
Commission’s required risk disclosures and other documents contained as part of our electronic account package and you agree to be
bound by their terms and conditions. In addition, by signing our account agreement and related documents, you are consenting to our
maintaining and your receiving electronic records of your trades and accounts. You may withdraw your consent to such electronic records
by notifying us in writing or by e-mail, at any time, after which you only will receive paper records. However, please be advised that
should you withdraw your consent to receive records electronically and receive paper records of your transactions, you will be charged a
fee.
There are no special hardware or software requirements for access to or retention of your electronic records at this time other than having
access to the internet, and registering for your unique and secure user name and password (to print copies of the records, you may need a
program to read documents in “PDF” format). Should any technological change or upgrade be made that will affect your ability to access
your records and accounts, we will notify you and remind you of (A) your right to withdraw your consent to receive electronic records and
to receive paper records instead, and (B) any fee we may charge you to receive paper records.
By typing my signature below and submitting it to NinjaTrader Clearing, LLC (“Tradovate”) by the internet, I acknowledge that I have
read
and understood the foregoing Agreement, that I intend to rely upon it, and that I intend to be bound thereby. I understand and agree that
my electronic signature is the equivalent of a manual signature and that Tradovate may rely on it as such. I further agree to advise
Tradovate of any change in my electronic (email) address, or of my withdrawal of consent to this agreement and the address to which
paper documents should be mailed.
Tradovate
CUSTOMER AGREEMENT
This Customer Agreement (the “Agreement”) sets forth the terms and conditions that NinjaTrader Clearing, LLC (doing business as
Tradovate) (“Tradovate”), acting as a futures commission merchant (“FCM”), and the undersigned (“Customer”) have agreed will
govern the purchase, sale, execution, clearing and carrying of derivatives products cleared through Tradovate, including futures
contracts and options on futures contracts, including foreign futures and options, commodities and commodity options cleared through
one or more derivatives clearing organizations or other organized clearing houses, swaps, foreign exchange, and virtual currencies,
(collectively, “Contracts”) for the account and risk of Customer. The Agreement includes any Annexes and Schedules incorporated
herein and incorporates the representations and other information set forth in such Annexes and Schedules and the Futures Application
(the “Application”) accompanying this Agreement which representations shall be deemed to be repeated at the time of entering into each
transaction and/or at the time Customer submits a transaction for clearing. If this Account has been introduced to Tradovate, all
references to us in this Agreement shall include your introducing broker, and your introducing broker shall enjoy all benefits and rights
hereunder.
1. Applicable Law.
Each Customer account carried by Tradovate in connection with Customer’s Contracts (each an “Account”) and each Contract carried in
the Account shall be subject to: (i) all applicable federal, state, local, foreign and other governmental laws; (ii) the Commodity
Exchange Act, as amended (“CEA”), the rules and interpretations of the Commodity Futures Trading Commission (“CFTC”) and the
National Futures Association (“NFA”); and (iii) all applicable laws and the regulations, rules and orders of all regulatory and self-
regulatory organizations with appropriate jurisdiction, including, but not limited to, the constitution, by-laws, rules, regulations, orders,
adjustments, rulings, resolutions, interpretations and customs and usages of the designated contract market, exchange, board of trade, or
trading facility, system or platform (each, an “Execution Facility”) and clearing organization (“Clearing Organization”) where such
Contract is executed and/or cleared (collectively, “Applicable Law”). Tradovate and its respective partners, managing directors,
officers, directors, employees, and affiliates (each a “Tradovate Party”, and collectively with Tradovate, the “Tradovate Parties”) and
agents of the Tradovate Parties shall not be liable as a result of any action taken or failed to be taken or any statement made or not made
by such persons in order to comply with Applicable Law.
2. Authorization.
Customer authorizes Tradovate to enter into Contracts for Customer’s Account in accordance with written, oral, or electronic
instructions provided by Customer, its representatives, including Customer’s advisor or Account Manager (“Advisor”), if applicable, and
persons Tradovate believes in good faith are authorized to act on Customer’s behalf. Customer acknowledges that all Contracts are
being entered into for the account and risk of Customer, that Tradovate is acting as agent and not principal in the execution and/or
clearing of Contracts and Tradovate is not acting as a fiduciary or advisor with respect to Customer or any Account. Subject to Section
15(a) herein, Customer acknowledges that nothing in this Agreement or otherwise obligates Tradovate to accept Contracts for execution or
clearing for Customer’s Account and, to the extent that Tradovate accepts such Contracts for execution or clearing, Customer and not
Tradovate is responsible and liable for any losses arising from Contracts entered into in Customer’s Account. Customer waives any
claim or defense that any instruction provided on its behalf was not in writing.
(i)Customer has full right, power and authority to enter into and perform its obligations under this Agreement and Contracts, including,
without limitation, the granting of security interests in the Collateral (as defined in Section 13) as contemplated herein, and the execution
and performance of this Agreement does not and will not violate Applicable Law or any constituting document to which Customer is
subject;
(ii) Customer has all necessary licenses and approvals to conduct the business it conducts and it is in compliance with its own policies and
procedures and, if applicable, constituting documents, as well as with all laws and regulations applicable to it with respect to the Contracts
contemplated by this Agreement including without limitation, to the extent such laws and regulations are applicable to it, all laws and
regulations applicable to pension plans, IRA accounts, particular types of governmental entities, particular types of trusts, foundations,
charitable organizations, endowments, hospitals, insurance companies, banks, broker-dealers, commercial or consumer lenders,
investment companies, commodity pools or other forms of collective investment vehicles or managed accounts;
(iii) Customer is acting as a principal and not as an agent, has been duly authorized to enter into this agreement and that all monies
deposited to the contemplated account were sent with the requisite authority. If Customer is employed in the financial services industry
you agree to provide us with any necessary consents to open this account and that you are in compliance with any registration
requirements regarding commodity pools and commodity trading advisors.
(iv) no consent, authorization, permit or filing, other than those that have been obtained and are in effect, is required for the execution and
performance of this Agreement and the Contracts by Customer, including, without limitation, the execution and/or clearing of Contracts
through Tradovate and the provision by Customer to Tradovate of a perfected, first priority security interest in the Collateral as
provided in this Agreement;
(v) Customer: (A) is capable of evaluating investment risks independently; (B) is exercising independent judgment with respect to
its investment in and, if applicable, decision to hold, sell or offset the Contracts and any related investment strategy; (C) understands
that Contracts involve substantial risk and has determined that trading in and, if applicable, holding Contracts is suitable and appropriate
for it and its Account and it has the capacity to absorb potential losses related to its trading strategy and the positions held by it; (D)
is not relying on any communication (written or oral) of Tradovate or any of its employees or agents as investment advice or
as a recommendation to enter into a Contracts transaction, it being understood that information and explanations related to the
terms and conditions of a Contracts transacion will not be considered investment advice or a recommendation to enter into that
transaction; and (E) has not received any communication (written or oral) from Tradovate or any of its agents that can be deemed to
be an assurance or guarantee as to the expected results of any Contracts transaction;
(vi) except as disclosed in writing to Tradovate, Customer is acting solely as principal and not as agent for any other party and no other
person has any interest in the Account and, except for Advisor (if applicable), no other person has control over the Account;
(vii) all financial and other information provided by Customer to Tradovate in connection with this Agreement and the opening or
maintenance of Customer’s Account is, as of the date of the information, true, accurate and complete in every material respect;
(viii) Customer covenants and warrants that it shall not grant any lien or security interest on the Collateral to any person (other than
liens solely in favor of any Execution Facility, Clearing Organization, or Tradovate);
(ix) Customer is not subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975
of the Internal Revenue Code of 1986, as amended (the “Code”) and does not constitute the assets of any “governmental plan” (within
the meaning of Section 3(32) of ERISA) that is subject to any provision that is similar to Section 406 of ERISA or Section 4975 of the
Code; and (x) Customer, if applicable, is duly organized and in good standing in all jurisdictions in which it is qualified to do business.
(b) Customer agrees to notify Tradovate promptly in writing if any representation, warranty or agreement made by Customer in this
Agreement, including without limitation those contained in this Section 3, ceases to be true, correct or complete in any respect or if
Customer fails to perform any undertaking contained herein, including the Schedules and Annexes hereto.
4.Additional Agreements of Customer. Customer acknowledges and agrees with Tradovate that:
(a)Tradovate's Responsibility. Tradovate, as agent, is responsible solely for the execution, clearing and/or carrying of Contracts in
each Account in accordance with the terms of this Agreement. Customer and Customer’s Advisor (if applicable) are the sole parties
responsible for all investment, trading, and order routing decisions for the Accounts and for compliance with any applicable restrictions
on such trading. Customer is responsible for evaluating and understanding the risks associated with Contracts on each Execution Facility
on which Customer has elected to trade. Tradovate is not acting as a fiduciary or advisor with respect to Customer or any Contract or
Account, and Tradovate shall have no responsibility for compliance with any law or regulation governing the conduct of any such
fiduciary or advisor or for Customer’s compliance with any law or regulation governing or affecting Customer’s trading hereunder.
(b)Advice and Positions. Any market information communicated by Tradovate with respect to any Account opened by Customer or
with respect to any Contracts contemplated by this Agreement is incidental to Tradovate's business as an FCM, and does not constitute
investment advice or a recommendation. Moreover, such information does not constitute an offer to buy or sell or the solicitation of an
offer to buy or sell any Contracts and is not intended to serve and will not serve as the primary basis for any decision by or on behalf of
Customer in respect of any Contract or Account. Tradovate does not have and will not have any discretionary authority, power or
control over any decisions made by or on behalf of Customer in respect of the Account or any Contract, and Customer shall rely solely on
its own judgment and the advice of its Advisor (if applicable), and not on Tradovate, in making any such decision. Verbal orders and or
orders received via email from Customers will only be accepted and executed by Tradovate acting in a clerical capacity. Tradovate is also
authorized to enter and execute order to liquidate positions in under-margined Customers’ accounts.
(c)Conflicts of Interest. Customer acknowledges that the Tradovate Parties may take, hold positions in, or advise other customers
concerning, Contracts. The positions, transactions and advice of the Tradovate Parties may be inconsistent with or contrary to advice
given or positions held by Customer. Tradovate may also trade in Contracts for its own account and such activity may adversely affect
the market for and value of the Contracts held by Customer.
(d)Reports. All oral and written communications relating to the Account or to any Contract will be submitted to Customer by Tradovate at
the address and telephone number, or e-mail and/or other electronic delivery address, provided by Customer on the Application or as
otherwise designated by Customer in writing. Oral trade execution reports from Tradovate will be conclusive and binding on Customer
unless Customer notifies Tradovate of any objection at the time such execution report is given. Tradovate understands that Customer
wishes to receive written confirmations and monthly statements by means of electronic media. Tradovate will provide all written
confirmations and monthly statements solely by e-mail or other electronic transmission until further notice from Customer and
acknowledges that Customer may revoke its consent to receive written confirmations and monthly statements by means of electronic
media at any time. Customer agrees at all times to provide a valid working email address for the purpose of receiving all reports,
statements and correspondence and agrees to immediately notify Tradovate in the event that there is any interruption in the delivery of
such reports, statements or correspondence whether delivered by email or through the Tradovate Portal.
(e)Written confirmations and monthly statements (including, without limitation, those delivered electronically) shall be conclusive and
binding on Customer unless Customer notifies Tradovate of any objection in writing before the opening of trading on the Business Day
following the day on which Tradovate sent such communications to Customer or posted them on an applicable website. Customer will
carefully review all other communications from Tradovate and will notify Tradovate of any error immediately in the case of an oral
communication and promptly after receipt in the case of a written communication (including, without limitation, one delivered
electronically). For the purposes of this Agreement, “Business Day” means, any day other than a Saturday or Sunday on which
Tradovate and the applicable Execution Facility and/or Clearing Organization are open for business.
(f)Electronic Trading. Trading through an electronic trading or order routing system exposes you to risks associated with system or
component failure. In the event of system or component failure, it is possible that, for a certain time period, you may not be able to enter
new orders, execute existing orders, or modify or cancel orders that were previously entered. System or component failure may also result
in loss of orders or order priority. For a complete discussion of the risks involved in electronic trading, please see the ELECTRONIC
TRADING AND ORDER ROUTING SYSTEMS DISCLOSURE STATEMENT. Customer agrees that the unique login to the trading
platform that has been (or will be provided will be used exclusively by the trader enrolled as the user and will not be provided to any other
individuals. Under no circumstances will Tradovate be responsible for trades place by an unauthorized user.
(g) Financial Information. Customer will notify Tradovate promptly (and no later than within one (1) Business Day of any such
event) of any material adverse change to Customer’s financial condition, regardless of whether Customer has previously furnished
financial information to Tradovate. Customer authorizes Tradovate to contact such banks, financial institutions, credit agencies and
other sources of financial information regarding Customer as Tradovate deems appropriate from time to time and Customer
agrees, at Tradovate's request, to authorize such entities to provide information to Tradovate regarding Customer.
(h) Employees of FCMs, Self-Regulatory Organizations or the CFTC. If Customer is an , Customer is not a partner, officer,
director, employee or owner of more than ten percent of the equity interest of any FCM, any introducing broker or any self-regulatory
organization, or an employee of the CFTC, except as otherwise disclosed to Tradovate in writing.
(i) Cash transactions. Customer is aware that CFTC regulations require Customer to create, retain and produce upon the request of
the CFTC, the United States Department of Justice and the applicable Exchange, documentation of cash transactions underlying exchanges
of futures for cash commodities or exchanges of futures in connection with cash commodity transactions.
(j) Pre-Execution Communications. When Applicable Law permits pre-execution communications to facilitate execution of orders
for Customer’s Account, Customer hereby consents to Tradovate entering into such permissible communications consistent
with Applicable Law. Customer may revoke this consent at any time by written notice to Tradovate.
5.Customer Orders.
Unless specified by Customer and agreed by Tradovate and notwithstanding any right that Customer may otherwise have under
Applicable Law, Customer expressly agrees that Tradovate may, in its sole discretion, select the Execution Facility or other markets on
which it will execute orders for Customer and the Clearing Organization through which the FCM that Tradovate designates will clear
transactions entered into by or on behalf of Customer.
7.Give-Ups.
Absent a separate written agreement with Customer with respect to give-ups, Tradovate, in its sole discretion, may, but shall not be
obligated to, accept from other executing brokers, introducing brokers or FCMs, Contracts executed by or through such entities to be
given up to Tradovate for clearance or carrying in any Account. Under no circumstances will Tradovate have any liability with
respect to any give-ups or for any actions or inaction taken by the executing broker or Customer in connection therewith.
8. Foreign Markets
Customer acknowledges and agrees that execution and clearance of Contracts in foreign markets entails additional risks, including foreign
exchange risk and risks associated with the different regulatory and insolvency regimes to which the brokers carrying the Contracts as
well as the Execution Facility and Clearing Organization on which the Contracts are executed and cleared are subject. Customer
expressly acknowledges that it will bear all risk associated with profit or loss on Contracts due to changes in the foreign exchange rate
between the currency in which the Contract is denominated and the currency of Customer’s jurisdiction as well as all other risks
associated with foreign Contracts in its Account.
9. Inactive Accounts.
Customer acknowledges that Tradovate may from time to time deactivate an Account with no open positions in Contracts or balances.
To the extent Customer requests to reactivate an Account that has been deactivated by Tradovate, Customer will provide Tradovate
with any information and documents reasonably requested by Tradovate in connection with Customer’s request to reactivate the
Account.
10. Margin.
Customer agrees to deposit and to maintain, without demand from us, performance bond, margin, security deposit, cash or other
acceptable collateral and to make any premium payments with respect to each Contract, in such form, in such amounts and by such time,
as required by (i) Applicable Law; or (ii) by Tradovate in its sole discretion. Customer acknowledges and agrees that Tradovate has no
obligation to establish uniform margin requirements and that margin requirements imposed by Tradovate may exceed those of the
applicable Execution Facility or Clearing Organization.
Such Margin requirements established by Tradovate may exceed the Margin required from Tradovate by an Execution Facility or
Clearing Organization. Tradovate may increase or decrease Margin requirements in its sole discretion at any time. If Tradovate
determines that additional Margin is required, you agree to deposit with Tradovate such additional Margin when and as demanded by
Tradovate, and you agree to satisfy immediately all Margin calls in such manner as Tradovate shall designate in its sole discretion.
Notwithstanding any demand for additional Margin, Tradovate may at any time proceed in accordance with Section 19, and any failure to
proceed shall not be deemed a waiver of any rights by Tradovate. No previous Margin deposit or practice shall establish any
precedent. Tradovate shall not be liable to you for the loss of any Margin deposit which is the direct or indirect result of the bankruptcy,
insolvency, liquidation, receivership, custodianship, or assignment for the benefit of creditors of any bank, another clearing broker,
Market, clearing organization, or similar entity.
mailing fees and Exchange data fees, (f) Treasury charges including but not limited to wire fees, currency conversion charges, ACH fees,
( g) charges for facilitating the transfer of positions to another FCM and (h) any other charges or costs incurred by Tradovate with
respect to the Account, including, but not limited to, reasonable attorneys’ fees incurred in collecting any unpaid debit balance or
deficiency.
12. Interest.
Tradovate does not provide banking services and/or is otherwise not acting as a bank for purposes of the Illinois Funds Transfer Act.
You agree to indemnify Tradovate if there’s a court-imposed liability ruling that Tradovate was acting as a bank or otherwise engaged in
banking activities.
(a)Tradovate may, but is not required to, pay Customer interest on excess cash held in the Account for Customer at rates customarily
paid by Tradovate and as advised to Customer from time to time.
(b)Customer will pay Tradovate interest on any debit balance or deficiency with respect to the Account as is customarily charged by
Tradovate based upon its rates then in effect or at a rate as may be agreed between Customer and Tradovate from time to time.
(b)Customer and Tradovate agree that Tradovate will treat all Collateral as “financial assets” under Article 8 of the Uniform
Commercial Code in effect in the State of Illinois (the “UCC”) (except for any of the Collateral constituting “commodity contracts” within
the meaning of the UCC). In connection with the foregoing, Tradovate and Customer agree that each Account that contains Collateral
other than commodity contracts will constitute a “securities account” within the meaning of Article 8 of the UCC with respect to such
Collateral. Tradovate will be acting in its capacity as a “securities intermediary” within the meaning of Article 8 of the UCC with
respect to each such securities account. To the extent any commodity contract (within the meaning of the UCC) is carried in any Account,
such Account will constitute a “commodity account” within the meaning of the UCC as to which Tradovate is the “commodity
intermediary” within the meaning of the UCC.
(c)Customer agrees that Tradovate will apply any value distributed on account of any “commodity contracts” (as defined in the Uniform
Commercial Code in effect in the State of Illinois) carried in the Account as directed by any of its affiliates without further consent by
Customer and, with respect to all other Collateral, Tradovate will comply with any entitlement orders originated by any of its affiliates
without Customer’s further consent. Customer acknowledges and agrees that Tradovate and its affiliates may agree among themselves
that Tradovate's interest in all or any portion of the Collateral shall have priority over the interest of its affiliates in the Collateral.
Nothing in any such agreement, however, shall affect any calculation of margin under this Agreement or any rights of Tradovate to
require additional margin or other Collateral to secure any obligations under any provision of this Agreement or otherwise.
(d)Customer agrees that it will promptly execute and deliver to Tradovate all documents and instruments, and take such further actions,
reasonably requested by Tradovate from time to time to protect, preserve and perfect Tradovate's rights and interests in the Collateral. To
perfect its security interest in all or a portion of the Collateral, Tradovate may file Uniform Commercial Code financing statements and
amendments thereto naming Customer as the debtor in the appropriate filing offices in the United States and may need to make
comparable filings or provide other evidence of Tradovate's security interest in foreign jurisdictions, if applicable. Customer agrees to
notify Tradovate in writing within thirty (30) days following the occurrence of any change in its legal name, jurisdiction of formation,
form of organization, place of residence if Customer is an individual, or chief executive office to enable Tradovate to maintain its
perfected status in the Collateral.
(e)Subject to any requirements under Applicable Law, Customer hereby grants Tradovate the right to borrow, pledge, repledge,
hypothecate, rehypothecate, loan or invest any of the Collateral, including investing such Collateral in any instrument authorized under
Applicable Law, in each case without notice to Customer, and without any obligation to pay or to account to Customer for any interest,
income or benefit that may be derived therefrom. Tradovate shall be under no obligation to deliver the same property deposited with
Tradovate or received by Tradovate for Customer’s Account, but may deliver other property of like or equivalent kind or amount.
(f)Customer agrees that Tradovate may from time-to-time transfer Collateral received under this Agreement among Accounts in the
Customer’s name or account classes within such Accounts and, following the occurrence of an Event of Default (as such term is defined
below), Customer further agrees that Tradovate may deduct monies or other assets from any account of Customer (including the
Account) and apply or transfer any of Customer’s monies or assets from the account (including the Account) to other account or accounts
(including the Account) in the name of Customer at Tradovate to satisfy Customer’s margin failure or deficit obligations to
Tradovate; provided, however, that Tradovate shall not apply or transfer funds when doing so would create a margin call or deficit in the
transferring account. Tradovate will have recourse to all assets of Customer held in any account in the name of Customer at
Tradovate to satisfy Customer’s obligations to Tradovate, including, without limitation, Customer’s obligations under this Agreement.
(b)Tradovate will have the right, whenever in its reasonable discretion it deems such action necessary or desirable, to: (i) establish or
change any limit with respect to any Contract or the Account; (ii) refuse to accept any orders to establish new positions whether such
refusal is required by Applicable Law or based on any applicable limit; and (iii) reduce or liquidate any Contract that violates any
applicable limit. Tradovate will promptly notify Customer if it has, pursuant to this Section 15(b), established or amended any limit or
(c)If Customer is required to file any position report with any governmental or self-regulatory agency or relevant Execution Facility or
Clearing Organization, Customer will promptly file and provide Tradovate with copies of such application or report and such other
information as Tradovate may reasonably request in connection therewith. Customer agrees to cooperate fully with Tradovate, if
Tradovate on Customer’s behalf, or in respect to Customer, is required to file any position report with any governmental or self-
regulatory agency or relevant Execution Facility or Clearing Organization.
(b)Certain option contracts sold by Customer are subject to exercise at any time and the rules of the relevant Execution Facility or
Clearinghouse may provide for the automatic exercise of options that are “in-the-money” at the time of expiration. Exercise notices
received by Tradovate from the applicable Execution Facility or Clearing Organization with respect to any option contract sold by
Tradovate's customers will be allocated among such customers (including Customer) pursuant to Tradovate's usual allocation
procedure and Customer will be bound by any allocation made to it pursuant to such procedure. Such notices may be allocated to
Customer after the close of trading on the day on which such notices have been allocated to Tradovate by the applicable Execution
Facility or Clearing Organization. Tradovate may change its allocation method at any time, without notice to Customer.
(c)Subject to the foregoing, Tradovate will have no responsibility for any action that it takes or fails to take with respect to any option
contract (including, without limitation, any responsibility to exercise any option contract purchased by Customer) unless and until
Tradovate receives acceptable and timely instructions from Customer indicating the action to be taken.
(d)If Customer fails to perform its obligations under this section, Tradovate may, but is not obligated to, take any action it deems, in its
sole discretion, is required by Applicable Law or is necessary for its protection or the protection of any of its affiliates, including, without
limitation, abandoning, liquidating, making or taking delivery or exercise on behalf of Customer. Customer will be liable for any
deficiency in the Account that may result therefrom. Tradovate will have no liability for any action that it takes or fails to take with
respect to any Contract under this Section 16.
17. Deliveries.
(a)Customer agrees to comply with all requests by Tradovate in connection with any open position in any Contract that could result in a
delivery or a delivery obligation. Tradovate may at their discretion limit trading to the liquidation of open positions in the five (5)
Business Days prior to the first notice day. Unless Customer shall have delivered to Tradovate notice of its intention to take delivery,
sufficient funds and the necessary documents to make or take delivery, Customer will, with respect to open positions in Contracts, give
Tradovate liquidating instructions at least five (5) Business Days prior to the first notice day, in the case of long positions, and at least
five (5) Business Days prior to the last trading day, in the case of short positions. If Customer fails to perform its obligations under this
section, Tradovate may, but is not obligated to, take any action it deems, in its sole discretion, that such action is required by Applicable
Law or is necessary for its protection or the protection of any of its affiliates, including, without limitation, abandoning, liquidating,
making or taking delivery or exercise on behalf of Customer. Customer will be liable for any deficiency in the Account that may result
therefrom. Tradovate will have no liability for any action that it takes or fails to take with respect to any Contract under this Section 17.
(b)If at any time Customer shall fail to deliver to us any property previously sold by us on your behalf or fail to deliver property, securities
or financial instruments in compliance with futures contracts, or we shall deem it in our sole discretion necessary to replace any securities,
financial instruments, or other property previously delivered by us for your Account with other property of like or equivalent kind or
amount, you authorize us in our judgment to borrow or to buy any property necessary to make delivery thereof or to replace any such
property previously delivered and to deliver the same to such other party to whom delivery is to be made. We may repay subsequently any
borrowing thereof with property purchased or otherwise acquired for your Account. Customer shall pay us for any cost, loss, and damage
from the foregoing (including consequential damages, penalties, and fines) which we may be required to incur or which we may sustain
from our inability to borrow or buy any such property.
(c)Customers is responsible for any losses, costs, fees, or charges (including consequential damages, penalties, and fines) incurred in
connection with making or taking any delivery on behalf of Customer.
(a)Customer fails to comply with any provision of, or perform any obligation under, this Agreement (it being understood that failure to
comply with Applicable Law shall be a failure to perform hereunder);
(b)Customer fails to transfer or maintain required margin in the Account, fails to pay, when due, required premiums or fails to make,
when due, any delivery or payments required hereunder in respect of any Contract or otherwise;
(c)Customer institutes, or has instituted against it by a regulator, supervisor or any similar official with primary insolvency, rehabilitative
or regulatory jurisdiction over Customer, a proceeding seeking a judgment of insolvency or bankruptcy, judicial management,
administration or reorganization or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights,
or a petition is presented by Customer or such regulator, supervisor, or similar official for its winding-up, liquidation or appointment of a
judicial manager, trustee, receiver, liquidator, conservator, custodian or similar officer;
(d)Customer has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and
such proceeding or petition is instituted or presented by a person or entity not described in clause (c) above and either (i) results in a
judgment of insolvency or bankruptcy or the entry of an order for relief of the making of an order for its winding-up or liquidation or (ii)
is not dismissed, discharged, stayed or restrained in each case within fifteen (15) days of the institution or presentation thereof;
(f)the issuance of any warrant or order of attachment against Customer’s Account or the levy of a judgment against Customer’s Account;
(g) any representation or warranty made by Customer is not or ceases to be correct or true in any material respect;
(h) Customer states that it will not perform any obligation under this Agreement or becomes insolvent or is unable to pay its debts or
fails or admits in writing its inability generally to pay its debts as they become due;
(i) Customer is the subject of any application, proceeding or action brought to or taken by or on behalf of an insurance regulatory authority
or similar person or entity that results in the suspension, non-renewal or revocation of such party’s license or authority to Tradovate
business in its state of incorporation domicile or principal place of business;
(j) Customer is placed into receivership, including conservation, rehabilitation, supervision, liquidation or any similar proceeding or enters
into an agreement with insurance regulatory officials of any state or jurisdiction which requires Customer to take, or refrain from taking,
any action or which otherwise affects Customer’s authority to do business in any state or ability to perform its obligations under this
Agreement;
(l) any self-regulatory organization of which Customer is a member, or any other regulatory authority with competent jurisdiction over
Customer suspends the conduct of Customer’s usual business or revokes authorizations, membership, licenses or other similar approvals
or Customer suspends its usual business or any material portion thereof; or<
(m) a meeting of Customer's creditors for the purpose of considering a voluntary arrangement or composition or general assignment
with or for the benefit of Customer's creditors is convened.<
19. Remedies.
(a) Upon the occurrence of an Event of Default, Tradovate shall have the right, subject to the terms of any other agreements between
Tradovate and Customer with respect to the rights and obligations of the parties under such other agreements, in addition to any other
remedy available under Applicable Law, without additional demand for margin and without notice or advertisement, to (i) cancel, suspend
or refuse or, in its discretion, continue to execute, without waiving any rights with respect to such Event of Default, any orders; (ii)close -
out, liquidate, terminate or net at such time as Tradovate deems appropriate, any or all open Contracts and other positions(including
Collateral) in Customer’s Account; (iii) treat any or all of Customer’s obligations to Tradovate, whether under this Agreement or any
other agreement(written or oral), as immediately due and payable; (iv)sell any or all of the Collateral held by Tradovate and to set off
and apply all or any of the Collateral or any of the proceeds of the sale thereof to or against any amounts owed by Customer to
Tradovate; (v)borrow, buy -in, terminate or offset any Contracts, or enter into risk reducing transactions for Customer’s Account or
otherwise including exchange of futures for risk positions; (vi)set - off and net any obligations of Tradovate to Customer against any
obligations of Customer to Tradovate; (vii)terminate any or all of Tradovate's obligations for future performance to Customer; and
(viii) take such other actions as Tradovate, in its discretion, deems necessary or appropriate for its protection, all without additional
demand for margin and without notice or advertisement. (b) Tradovate, in its sole discretion, may make and effect any actions
described in subsection(a) above in any manner it deems reasonable and necessary, including, without limitation choosing appropriate
counterparties(which include affiliated entities), Execution Facilities and price sources to utilize and accept in connection with any
purchases, sales, terminations, set - offs or valuations and, if so determined by Tradovate, to convert any margin or amounts payable by
Customer which may be in a currency other than U.S.Dollars into U.S.Dollars at the spot rate of exchange therefore reasonably chosen by
Tradovate. A prior demand or margin call of any kind from Tradovate, prior notice from Tradovate or the failure to previously
enforce any provision of this Agreement or any other agreement will not be considered a waiver of Tradovate's right to take any action
as described herein without notice or demand.Notwithstanding the foregoing, Tradovate will make a good - faith effort to notify
Customer of its intention to take any of the actions specified in subsection(a) above before taking any such action; provided, that
Tradovate will not be deemed to have breached any obligation if no notice is given.Customer will be liable for the payment of any
deficiency remaining in the Account after such actions are taken by Tradovate, together with interest thereon and all costs relating to
actions taken by Tradovate(including reasonable attorneys’ fees), and any fees and expenses owed in the Account.
Upon a determination by the CFTC that information con concerning your account(s) with us may be relevant in enabling the CFTC to
determine whether the threat of a market manipulation, corner, squeeze, or other market disorder exists, the CFTC may issue a call for
specific information from us or from you. In the event that the CFTC directs a call for information to us, we must provide the information
requested within the time specified by the CFTC. If the CFTC directs a call for information to you through us as your agent, we must
promptly transmit the call to you, and you must provide the information requested with the time specified by the CFTC. If any call by the
CFTC for information regarding your account(s) with us is not met, the CFTC has authority to restrict such account(s) to trading for
liquidation only. You have the right to a hearing before the CFTC to contest any call for information concerning your account(s) with us,
but your request for a hearing will not suspend the CFTC’s call for information unless the CFTC modifies or withdraws the call. Please
consult 17 C.F.R. §21.03 for a more complete description of the foregoing (including the type of information you may be required to
provide). Certain additional regulations may affect you. Part 17 of the CFTC Regulations, 17 C.F.R. Part 17, requires each futures
commission merchant and foreign broker to submit a report to the CFTC with respect to each account carried by such futures commission
merchant or foreign broker which contains a reportable futures position. (Specific reportable position levels for all futures contracts
traded on U.S. exchanges are established in Rule 15.03.) In addition, Part 18 of the CFTC Regulations, 17 C.F.R. Part 18, requires all
traders (including foreign traders) who own or control a reportable futures or options position and who have received a special call from
the CFTC to file a Large Trader Reporting Form (Form 103) with the CFTC within one day after the special call upon such trader by the
CFTC. Please consult 17 C.F.R. 17 and 18 for more complete information with respect to the foregoing.
Customer acknowledges and agrees that that deposits in foreign currencies may incur negative interest rate charges and Tradovate may in
its sole discretion pass along to Customer any such charges so incurred.
25. Indemnification.
Customer hereby agrees to indemnify and hold harmless Tradovate and all Tradovate Parties (together, “Tradovate Indemnified
Parties,” or individually, “Tradovate Indemnified Party”) from and against any and all loss, cost, damage, expense, penalty, tax or fees
when and as incurred by, or asserted against, any Tradovate Indemnified Party arising out of or in connection with this Agreement or
any Contracts or transactions contemplated hereunder or pursuant to instructions received by any Tradovate Indemnified Party from
Customer or any person believed to be authorized to provide such instructions. Customer will, without limitation, indemnify the
Tradovate Indemnified Parties for reasonable costs of counsel and the cost of any investigation and preparation, when and as incurred
by them (including, without limitation, advancement of expenses), in connection with any claim, action, proceeding, investigation,
examination or threatened action relating to this Agreement or of any Contract, except for such losses, costs or damages as are directly
caused by such Tradovate Indemnified Parties’ own gross negligence or willful misconduct.
26. Termination.
This Agreement may be terminated at any time by Customer or Tradovate by written notice to the other. Termination will not affect
any Contract or other transaction entered into prior to receipt of such notice and will not relieve either party of any obligations in
connection with any debit or credit balance or other liability or obligation incurred prior to such termination. The security interest granted
by Customer under Section 13 of this Agreement will not terminate until all obligations of Customer to Tradovate described in such
section are satisfied. In the event of a notice terminating this Agreement, Customer will either close out open positions in the Account or
arrange for such open positions to be transferred to another FCM promptly. If Customer fails to close out open positions in the Account
or arrange for such open positions to be transferred to another FCM promptly, Tradovate may exercise any rights set forth in Section 19
hereof in respect of such open positions. Upon satisfaction of all of Customer’s liabilities to Tradovate which may be deducted from the
Account or other accounts of Customer at Tradovate if the cash in the Account is insufficient to satisfy payments of amounts owed
(including payment of previously received discounts which may be pro-rated based on Customer’s desired termination date), Tradovate
will transfer to another FCM identified by Customer all remaining Contracts held for the Account and distribute per Customer’s
instructions all other cash, securities and other property held in the Account, whereupon this Agreement shall terminate. The provisions
of Section 22, 23, this Section 24 and Sections 29 to 32 of this Agreement will survive termination of this Agreement.
27. Severability.
If any provision of this Agreement is or at any time becomes inconsistent with or invalid under any present or future Applicable Law,
such inconsistent or invalid provision will be deemed to be superseded or modified to conform to such Applicable Law, but in all other
respects this Agreement will remain in full force and effect.
provided by Tradovate will notify Customer of any such amendment. The rights and amendments of Tradovate and Customer under
this Agreement are cumulative and no waiver or modification of this Agreement or of any such right or remedy may be inferred from
any failure by Tradovate or Customer to exercise any right or remedy under this Agreement.
If to Tradovate:
- Tradovate
- Attn: Compliance Department
- 21805 Field Parkway
- Suite 360
- Deer Park IL 60010
- Email: compliance@Tradovate.com
If to Customer: At the address provided on the Customer Application, or as otherwise provided in writing to Tradovate by Customer.
All communications sent to Customer, whether through the Internet, or by mail, messenger or otherwise, shall be deemed effective: (a) if
in writing and delivered in person, or by courier, or by overnight mail, on the date delivery is attempted; (b) if sent by certified or
registered mail or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted; or (c) if sent by
electronic delivery, on the date that the electronic delivery is sent.
Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction if (i) the courts of the State of
Illinois or the United States District Court for the Northern District of Illinois lack jurisdiction over the parties or the subject matter of the
Proceedings or decline to accept the Proceedings on the grounds of lacking such jurisdiction; (ii) the Proceedings are commenced by a
party for the purpose of enforcing against the other party’s property, assets or estate any decision or judgment rendered by any court in
which Proceedings may be brought as provided hereunder; or (iii) the Proceedings are commenced to appeal any such court’s decision or
judgment to any higher court with competent appellate jurisdiction over that court’s decisions or judgments if that higher court is located
outside the State of Illinois or City of Chicago.
36. Headings.
All headings used herein are for convenience only, are not part of this Agreement, and are not to be used in construing or interpreting any
aspect of this Agreement.
37. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the
same instrument
✔Agreed
(b) Cross Trade Consent. Customer agrees that Tradovate, and its managing directors, officers, employees, affiliates, agents and floor
brokers where acting on Tradovate's behalf, may take the other side of any Contract for the Account, subject to the Contract being
executed at the prevailing price and in accordance with Applicable Law.
✔Agreed
IN WITNESS WHEREOF, Tradovate and Customer have executed this Futures Agreement by their duly authorized signatory