The following are the terms and conditions ("Terms and Conditions") under which Danske Markets Inc., a Securities and Exchange Commission ("SEC") registered broker-dealer and a member of the Financial Industry Regulatory Authority, Inc. ("FINRA"), and its successors and assigns (collectively "Danske Markets Inc.") will transact business with you, including but not limited to the maintenance of your account.
These Terms and Conditions contain a pre-dispute arbitration clause at paragraph 26.
1. APPLICABLE LAW AND REGULATIONS.
All transactions shall be subject to all applicable laws, and the rules and regulations of all federal, state and self-regulatory agencies and organizations, including, but not limited to, the Securities and Exchange Commission, the Board of Governors of the Federal Reserve System, FINRA and the constitution and rules and customs of the exchange or market (and clearing house), where executed. You represent and warrant that you are authorized under all applicable laws
and regulations and by your governing documents, to enter into all transactions with Danske Markets Inc. hereunder.
2. BREACH, BANKRUPTCY OR DEFAULT.
Any breach, repudiation or default under these Terms and Conditions or the filing of a petition or other proceeding in bankruptcy, insolvency, or for the appointment of a receiver by or against you, the levy of an attachment against your account(s) with Danske Markets Inc., or your dissolution, or any other grounds for its own protection, as determined by Danske Markets Inc. in its sole discretion, shall constitute, at Danske Markets Inc.’s election, a default by you under all agreements Danske Markets Inc. may then have with you, whether heretofore or hereafter entered into. In the event of default, Danske Markets Inc. reserves the right to sell, without prior notice to you, any and all property in which you have an interest, held by or through Danske Markets Inc. or any of its affiliates, as applicable, to buy any or all property which may have been sold short, to cancel any or all outstanding transactions and/or to purchase or sell any other securities or property to offset market risk, and to offset any indebtedness you may have, after which you shall be liable to Danske Markets Inc. for any remaining deficiency, loss, costs or expenses sustained by Danske Markets Inc. in connection therewith. Such purchases and/or sales may be effected publicly or privately without notice or advertisement in such manner as Danske Markets Inc. may in its sole discretion determine. At any such sale or purchase, Danske Markets Inc. may purchase or sell the property free of any right of redemption. In addition, Danske Markets Inc. shall have the right to set off and apply any amount owing from Danske Markets Inc. or any of its affiliates to you against any indebtedness in your accounts, whether matured or unmatured.
3. SECURITY INTEREST.
Danske Markets Inc. shall have a continuing lien and security interest in all of your property in whatever form now or hereafter held by it as security for the payment of all your obligations and liabilities to Danske Markets Inc., whenever incurred. In the event of a breach or default hereunder, Danske Markets Inc. shall have the rights and remedies available to a secured creditor under the Uniform Commercial Code as then in effect in the state of New York in addition to the rights and remedies provided herein or otherwise by law.
4.REPRESENTATIONS AND WARRANTIES.
You make the following representations and warranties: (i) no other person other than you has any interest in your account except to the extent disclosed in writing to Danske Markets Inc.; (ii) you possess the necessary power and authority and have obtained all necessary authority to enter into and comply with these Terms and Conditions (iii) since the date of your most recent audited or unaudited financial statements, you are not aware of any material adverse change in your business, financial condition, results, operations or prospects; (iv) you have complied, and will continue to comply, with all anti-money laundering and antiterrorist financial legislation in the United States, and any other applicable jurisdiction, and will provide Danske Markets Inc. with all such information, documentation and evidence as may be required to enable Danske Markets Inc. to comply with its obligations in respect of such legislation.
5. INVESTMENT ADVISER REPRESENTATION.
If you are acting as a money manager or adviser for yourself or other persons (the “Accounts”), you represent and warrant that you have in your files written authorization from your Accounts to act in a discretionary manner on their behalf with respect to all transactions and other matters involving Danske Markets Inc. In lieu of furnishing Danske Markets Inc. with the specific evidence of your authority to act with respect to each Account, you agree to indemnify and hold Danske Markets Inc. harmless from any loss or damage which Danske Markets Inc. may sustain as a result of any claim made against it on the basis that you were not properly authorized to act fully on behalf of the Account
6. FEES AND CHARGES.
Danske Markets Inc. may charge commissions and other fees for execution or any other service furnished to you, as applicable, and you agree to pay such commissions and fees, as agreed to by you and Danske Markets Inc., and as indicated on confirmations prepared by Danske Markets Inc. If no contrary agreement is in place, you agree to pay Danske Markets Inc.’s then prevailing rates on commissions and fees.
7.CONFIRMATIONS AND ACCOUNT STATEMENTS.
You will, when a trade has been executed, receive a confirmation showing information as required by Rule 10b-10 under the Securities Exchange Act of 1934, as amended, (including the settlement price, execution venue and order type). The confirmation shall be conclusive if not objected to prior to settlement. The confirmation will be dispatched not earlier than the first business day after execution of the trade. The confirmation will be transmitted to you by e-mail, fax or otherwise. When dispatched by e-mail such e-mail may not be encrypted. Unless requested, you will not receive any statement of accounts or reports of your transactions or positions, monthly or otherwise.
8. COSTS OF COLLECTION.
Danske Markets Inc. will charge you for any reasonable direct or indirect costs of collection including, but not limited to, attorneys’ fees, court costs and other expenses.
9. RESTRICTIONS ON ACCOUNT.
Danske Markets Inc., in its sole discretion, may restrict or prohibit trading of securities for your account for any reason.
10. ERRORS IN ACCOUNTS.
Errors or omissions with respect to any transaction for your account which are caused by Danske Markets Inc. will be adjusted by Danske Markets Inc. Danske Markets Inc. will not be liable to you in any way for errors or omissions caused by persons, or by conditions, over which Danske Markets Inc. has no effective control.
11. AGENT OR RISKLESS PRINCIPAL CAPACITY.
In all transactions with investors, Danske Markets Inc. serves in an agency or riskless capacity only. Danske Markets Inc.’s parent company, Danske Bank A/S may act as agent or principal in such transactions.
12. DVP/RVP SETTLEMENTS.
All transactions effected by Danske Markets Inc. will be settled on a DVP/RVP basis directly between you and Danske Markets Inc.’s parent company, Danske Bank A/S. You agree to furnish your settlement bank instructions with respect to the receipt or delivery of the securities involved in the transaction promptly upon receipt by you of each confirmation, or data as to each execution, relating to such order (even though such execution represents the purchase or sale of only a part of the order).
13. NO THIRD PARTY RIGHTS.
Unless special arrangements are made with Danske Markets Inc., all deliverable securities must not have any third party rights attached to them (including the absence of any restrictive legend on securities certificates) and must be appropriate for effecting regular way settlement in stock transactions.
14. TRADING RECOMMENDATIONS.
Any recommendations made and market information or price quotes provided by Danske Markets Inc., while based upon information from sources that Danske Markets Inc. believes to be reliable, may be incomplete, inaccurate or unverified. Danske Markets Inc. makes no representation, warranty or guarantee as to the accuracy of such information. You acknowledge that recommendations made to you at any given time may be different from recommendations made to other customers of Danske Markets Inc. or any of its affiliates, and that such recommendations may not be consistent with investments of Danske Markets Inc. or any of its affiliates, or their officers, directors, employees, agents, representatives or independent contractors. You acknowledge that, on occasion, Danske Markets Inc. may not be in a position to make a recommendation or render an opinion with respect to any security.
15. AFFILIATION DISCLOSURES.
Danske Markets Inc. is a broker-dealer which is wholly-owned by Danske Bank A/S. Danske Markets Inc. uses the execution and settlement capabilities of Danske Bank A/S to provide U.S. institutional investors with access to investments in securities in the Nordic Region and other countries. In all instances in which you trade securities with Danske Markets Inc., you will be effecting transactions entirely with Danske Markets Inc. pursuant to an agreement that Danske Markets Inc. has in place with Danske Bank A/S, pursuant to Rule 15a-6 under the Securities Exchange Act of 1934, as amended. All communications regarding your account shall be directed to Danske Markets Inc.
Danske Markets Inc. has policies in place to maintain the confidentiality and security of customer information. Danske Markets Inc. maintains physical, electronic and procedural safeguards to protect non-public customer information. It is Danske Markets Inc.’s policy not to share information or records regarding former or current customers with anyone, except as required by law or with such former or current customer’s express permission. Customer accounts are handled in a confidential manner with information and transactions discussed only with persons who have a reasonable need to know such information for valid business or regulatory reasons. Notwithstanding the foregoing, in order for Danske Markets Inc. and its affiliates to better serve you, you consent that they may share and exchange, any information given for the purpose of opening this account and other non-public information about you with each other, including information regarding your credit.
17. ORDERS RECEIVED
When Danske Markets Inc. receives an order from you to buy or sell securities, it is binding on you. Orders submitted outside of Danske Market Inc.’s normal operating hours will be executed on the following business day.
18. EXECUTION OF ORDERS.
When Danske Markets Inc. routes an order to a European regulated or other foreign market via Danske Bank A/S, the relevant market’s trading rules apply. Orders executed on European regulated or other foreign markets may be
(i) executed only to the extent that they can be matched in full or in part with bids or offers;
(ii) split up or aggregated and traded at different prices over the trading day;
(iii) lapse if they are not executed on the day that they are entered into the trading system. If only part of an order can be executed, the unexecuted portion will lapse. However, if you specify a price (a limit order), you can maintain the order for a period agreed to in advance by you and Danske Markets Inc. You will be advised if for some reason your order is not executed.
19. AVERAGE PRICE TRADES.
If your trade order accounts for a significant share of the average daily trading volume in the security concerned, subject to individual agreement with Danske Markets Inc., Danske Markets Inc. may arrange to have Danske Bank A/S execute the order at a calculated, volume-weighted average price. Volumeweighted average price trades are based on trading within a specific period of time on a given trading day.
20. RESTRICTED LISTS
If a security is placed on Danske Markets Inc.’s or Danske Bank A/S’s restricted list during the pendency of a trade, Danske Markets Inc. or Danske Bank A/S may cancel any unexecuted orders for the security.
21. LIMITATIONS OF LIABILITY.
Danske Markets Inc. is not liable for any losses in your account, however caused, as a result of: (i) dealing in securities; (ii) delays in receiving or processing transaction instructions; (iii) accepting or refusing to accept instructions; or (iv) delays in transferring securities to a third party. This includes losses due to government restrictions, exchange or market rules (or the non-enforcement of such rules), suspension of trading, unusual market activity, wars, terrorism, strikes, communication systems or utility interruptions or any other events or conditions beyond Danske Markets Inc.’s control. This limitation will not apply to the extent the losses are caused by fraud, willful default or gross negligence of Danske Markets Inc. or to the extent it would infringe any statute or rules of any applicable regulatory authority. Danske Markets Inc. is not liable for any loss you suffer as a result of any action taken or not taken because of an error in your instructions to Danske Markets Inc. Danske Markets Inc. is also not liable if it does not receive your instructions.
You will indemnify and hold harmless Danske Markets Inc. and its affiliates against all losses that it may suffer or incur, directly or indirectly (including to third persons) in connection with these Terms and Conditions or any part of the Institutional Account Application, including for (i) any of your failure to perform your obligations under these Terms and Conditions or the Institutional Account Application or any transaction, including, without limitation, any failure to pay any amount due to Danske Markets Inc.; (ii) Danske Markets Inc.’s accepting or making delivery of property on your behalf; (iii) any of your inability to deliver any property previously sold by Danske Markets Inc. on your behalf, and in such event, any inability of yours to borrow or purchase the delivered property; and (iv) any of your failure to comply with applicable law. This indemnity includes losses resulting from any act or omission by Danske Markets Inc., except that no indemnified person is entitled to indemnity to the extent that the loss was caused by the indemnified person’s own fraud, willful default or grossnegligence and except to the extent that providing such an indemnity would infringe on any statute or rules of any applicable regulatory authority.
23. LEGALLY BINDING.
All of these Terms and Conditions hereof shall be binding upon you and your estate, heirs, executors, administrators, personal representatives, successors and assigns. All purchases and sales shall be for your account or for an account over which you exercise investment discretion, in accordance with your oral or written instructions. You hereby waive any and all defenses that any such instruction was not in writing as may be required by the Statute of Frauds or any other similar law, rule or regulation.
24. WAIVER, ASSIGNMENT AND NOTICES.
Neither Danske Markets Inc.’s failure to insist at any time upon strict compliance with these Terms and Conditions nor any continued course of such conduct on its part shall constitute or be considered a waiver by Danske Markets Inc. of any of its rights or privileges hereunder. Any assignment of your rights and obligations hereunder without obtaining the prior written consent of an officer of Danske Markets Inc. shall be null and void. Notices or other communications may be sent by Danske Markets Inc. to you at the address, fax number or e-mail address provided by you in your Institutional Account Application or at such other address, fax or e-mail address as you may hereafter give Danske Markets Inc. in writing or by telephone. Allcommunications so sent shall be deemed given to you personally, whether or not actually received. Communication by e-mail may be in un-encrypted form.
Danske Markets Inc. may modify these Terms and Conditions at any time upon prior written notice. By continuing to effect transaction with Danske Markets Inc., you will have indicated your acceptance of any such modifications. If you do not accept such modifications, you must notify Danske Markets Inc. in writing; your account may then be terminated by Danske Markets Inc., after which you will remain liable to Danske Markets Inc. for all remaining liabilities or obligations. Otherwise, these Terms and Conditions may not be waived or modified absent a written instrument signed by an officer of Danske Markets Inc., and without limiting the foregoing, you agree that (a) no employee of Danske Markets Inc. shall have authority to modify these Terms and Conditions or waive any of its provisions, either orally or in writing (unless, in the latter case, in an instrument signed by an officer of Danske Markets Inc.); and (b) no course of dealing between Danske Markets Inc. and you, nor any one or more instances, shall be deemed a waiver in any other instance.
26. ARBITRATION. ARBITRATION IS FINAL AND BINDING ON THE PARTIES. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS. THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS ISSTRICTLY LIMITED.
THE PANEL OR ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE
ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL:
(i) THE CLASS CERTIFICATION IS DENIED;
(ii) THE CLASS IS DECERTIFIED; OR
(iii) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN. YOU AGREE, AND BY MAINTAINING AN ACCOUNT FOR YOU, DANSKE
MARKETS INC. AGREES, THAT CONTROVERSIES ARISING BETWEEN YOU AND DANSKE MARKETS INC., ITS CONTROL PERSONS, PREDECESSORS, SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE SUCCESSORS, ASSIGNS AND EMPLOYEES, WHETHER ARISING PRIOR TO, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS
AGREEMENT SHALL BE HELD AT THE FACILITIES AND BEFORE AN ARBITRATION PANEL APPOINTED BY FINRA (AND ONLY BEFORE SUCH ASSOCIATION). THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE
AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.
27. GOVERNING LAW.
These Terms and Conditions shall be deemed to have been made in the state of New York and shall be construed, and the rights and liabilities of the parties determined, in accordance with the law of the state of New York, without regard to principles of conflicts of laws.
Danske Markets Inc. and its affiliates are authorized to withhold taxes from any payment made hereunder and remit such taxes to the applicable taxing authorities to the extent required by law. Taxes shall include any taxes, levies, imposts, duties, charges, assessments or fees of any nature, including interest, penalties and additions thereto that are imposed by any taxing authority.
The headings of the provisions hereof are for descriptive purposes only and shall not modify or qualify any of the rights or obligations set forth in such provisions.
30. BUSINESS CONTINUITY PLAN.
In accordance with U.S. regulations, Danske Markets Inc. has developed a business continuity plan that is intended to permit Danske Markets Inc. to continue critical business operations during natural disasters, power outages or other significant events. While there can be no assurance that service will continue without interruption in all circumstances, Danske Markets Inc.’s plan does address the actions that Danske Markets Inc. will take in the event that there is a significant disruption. Please contact your Danske Markets Inc. representative for a copy of this business continuity plan.
31. BROKERCHECK PROGRAM.
FINRA has created a public disclosure program called BrokerCheck that provides certain types of disciplinary information on its member firms and their associated persons in response to written inquiries via its website (www.finra.org) or telephone inquiries via its toll-free telephone number (1-800-289-9999). BrokerCheck gives you access to information that may help you determine whether to conduct business with Danske Markets Inc. or with its associated persons and for other uses consistent with BrokerCheck. A brochure describing BrokerCheck is available to you upon request by contacting FINRA.
Danske Markets Inc. is a member of the Securities Investor Protection Corporation ("SIPC"). You may obtain information about SIPC, including the SIPC brochure, by contacting SIPC at (202) 371-8300 or going on the SIPC web site (www.sipc.org).