Apex Clearing Agreements & Disclosures
Apex Customer Account Agreement
This Customer Account Agreement (the “Agreement”) sets forth the respective rights and obligations of Apex Clearing Corporation (“Apex”) and the customer identified on the New Account Application (the “Customer”) in connection with the Customer’s brokerage account with Apex (the “Account”). Customer hereby agrees as follows with respect to the Account, which Customer has established with Apex for the purchase, sale, and/or carrying of securities or contracts relating thereto, at the instruction of Customer’s registered investment advisor as authorized by Customer in the New Account Application (“Advisor”), which transactions will be cleared through Apex. To help the government fight the funding of terrorism and money laundering, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. In order to open the Account, Customer will provide information that will allow Apex to identify Customer, including, but not limited to, Customer’s name, address, and date of birth.
- Applicable Rules and Regulations. All transactions for the Account shall be subject to the constitution, rules, regulations, customs, and usages of the exchange or market and its clearing house, if any, upon which such transactions are executed, except as otherwise specifically provided in this Agreement.
- Definitions. “Obligations” means all indebtedness, debit balances, liabilities, or other obligations of any kind of the Customer to Apex, whether now existing or hereafter arising. “Assets” shall include, but shall not be limited to, money, securities, and other property of every kind and nature and all contracts and options relating to them in any way, whether for present or future delivery.
- Advisor Agreement. Customer represents that Customer has entered into a separate agreement directly with Advisor (“Advisor Agreement”) authorizing Advisor to manage the Account, including executing trades, depositing or withdrawing funds to and from Account, requesting information, receiving Account statements and confirmations, changing certain of my information, and generally transacting in and managing the Account. Customer understands that Advisor has entered into an agreement with Apex pursuant to which Apex is willing to grant access to Advisor for Advisor to manage accounts for Advisor’s customers who open brokerage accounts at Apex for Advisor to manage.
- Apex’s Role and Appointment. Customer appoints Apex as agent to carry the Account and to execute Advisor’s instructions relating to the Account. Customer agrees Apex may execute, clear, and settle any transaction in the Account at the instruction of Advisor and may accept and execute any instruction relating to the Account without inquiry or investigation. Customer assumes all investment risk with the Account and with authorizing Advisor to transact for the Account. Customer understands all transactions in the Account will be executed by Apex only at the instruction of Advisor acting pursuant to the Advisor Agreement, and that Apex’s role is only to hold or custody Account Assets, distribute or collect funds on behalf of the Account, execute and clear trades at the instruction of Advisor, generate account statements, and provide other custodial and clearing services as may be mandated by various regulatory standards and requirements. Customer understands Apex does not and will not offer investment advice, review the Account or transactions therein, make any determination of Customer’s suitability for any transaction or investment, will have no responsibility for trades made or activity in the Account, and has no discretion over transactions in or decisions made on behalf of Customer or the Account. Customer acknowledges that Advisor provides and is solely responsible for all investment advice and investment advisory services given in connection with the Account. Additionally, Apex will not verify the accuracy of any management fees Customer pays to Advisor pursuant to the terms of the Advisor Agreement. Notwithstanding the foregoing, in the event Customer initiates a claim against Apex, in Apex’s capacity as custodial broker or otherwise, and does not prevail, Customer shall be responsible for the costs and expenses associated with Apex’s defense of such claim. Apex may, in its sole and absolute discretion, and without prior notice to Customer or Advisor, transact, restrict, or refuse any orders placed in the Account.
- Advisor Fee and Charges. Customer will pay fees to Advisor for its services in accordance with the Advisor Agreement (each such payment an “Advisor Fee”). Customer authorizes and instructs Apex to deduct the Advisor Fee directly from the Account and pay it to Advisor. Customer agrees and acknowledges that Advisor will instruct Apex of the amount to deduct and pay to Advisor, and Customer agrees to hold harmless Apex in any dispute related to the amount of any Advisor Fee. Apex may also charge, and Customer authorizes Apex to deduct from the Account, fees for services performed by Apex at Customer or Advisor’s instruction, including, but not limited to, transactions, preparation and delivery of paper statements and confirmations, rejected payments, and wire transfers. Customer acknowledges per the agreement between Advisor and Apex that Advisor may pay Apex fees directly for Apex’s services provided. Regardless of the method used to calculate fees charged by Apex to Advisor, Customer understands that Apex is not an advisor and will not act as an advisor on the Account. Additionally, the Advisor Fee may not include underlying ETF or mutual fund expenses, which are standard expenses that shareholders pay in accordance with such funds’ prospectus, in which case Apex shall be entitled to deduct such fees from the Account.
- Breach; Security Interest. Whenever in Apex’s discretion Apex considers it necessary for Apex’s, Advisor’s, or Customer’s protection or in the event of, but not limited to: (i) any breach by Customer of this or any agreement with Apex or Advisor or (ii) Customer’s failure to pay for Assets purchased or deliver Assets sold, Apex may sell any and all Assets held in the Account or any other account in Customer’s name (either individually or jointly with others), cancel or complete any open orders for the purchase or sale of any Assets and/or borrow or buy-in any Assets required to make delivery against any sale, including a short sale, effected for the Customer, all without notice or demand for deposit of collateral, other notice of sale or purchase, or other notice or advertisement, each of which is expressly waiver by Customer, and/or Apex may require Customer to deposit cash or adequate collateral to Account prior to any settlement date in order to assure the performance or payment of any open contractual commitments and/or unsettled transactions. Apex has the right to refuse to execute transactions for Customer or Advisor at any time and for any reason. Any and all Assets belonging to Customer or in which Customer may have an interest held by Apex or carried in any of Customer’s accounts with Apex (either individually or jointly with others) shall be subject to a continuing and perfected first priority lien and security interest and right of set-off held by Apex for the discharge of and all indebtedness or obligation Customer may have to Apex, and will be held as security for payment of any liability or indebtedness in the Account or any of Customer’s accounts with Apex, wherever or however arising and without regard to whether or not Apex has made advances with respect to such Assets, and Apex is hereby authorized to sell and/or purchase any and all Assets in any of Customer’s accounts, and/or to transfer any such Assets among any of the Customer’s accounts to the fullest extent of the law and without notice where allowed. The losses, costs and expenses, including but not limited to reasonable attorneys’ fees and expenses, incurred and payable or paid by Apex in the (i) collection of a debit balance and/or any unpaid deficiency in the Account or any accounts of the Customer with Apex or (ii) defense of any matter arising out of the Customer’s or Advisor’s transactions, shall be payable to Apex by Customer.
- Cancellation. Apex is authorized, in its sole discretion, should it for any reason whatsoever deem it necessary for its protection, without any notice, to cancel any outstanding order, to close out the Account or any accounts of Customer at Apex, in whole or in part, or to close out any commitment made on behalf of Customer. Customer also authorizes Apex to terminate the account with or without Advisor’s instruction without notice to Customer.
- Payment of Indebtedness on Demand. Customer shall at all times be liable for payment upon demand of any obligations owing from Customer to Apex and Customer shall be liable to Apex for any deficiency remaining in Account or in any other accounts of Customer at Apex in the event of the liquidation thereof (as contemplated by this Agreement or otherwise), in whole or in part, by Apex, Advisor, or Customer. Customer shall make payment of such obligations immediately upon demand.
- Communications. Apex may send communications to Customer at Customer’s address on the New Account Application or at such other address as Advisor may hereafter give to Apex on behalf of Customer. All communications so sent, whether by mail, electronically, or otherwise, shall be deemed given to Customer personally, whether actually received or not. Customer shall be responsible for reviewing all statements and confirmations of Account as well as communications sent by Apex. Statements of Customer shall be conclusive if not objected to in writing by Customer within ten (10) days and confirmations shall be conclusive if not objected to in writing by Customer within five (5) days, after forwarding by Apex by mail or otherwise. In consideration of Apex sending any mail to Customer in care of a post office box or third party address, Customer hereby agrees that all correspondence of any nature whatsoever sent to Customer at such address will have the same force and effect as if it had been delivered to Customer personally.
- ARBITRATION AGREEMENT. THIS AGREEMENT CONTAINS A PREDISPUTE ARBITRATION CLAUSE. BY SIGNING AN ARBITRATION AGREEMENT THE PARTIES AGREE AS FOLLOWS:
- ALL PARTIES TO THIS AGREEMENT ARE GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY EXCEPT AS PROVIDED BY THE RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED;
- ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY’S ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED.
- THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT PROCEEDINGS;
- THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD UNLESS, IN AN ELIGIBLE CASE, A JOINT REQUEST FOR AN EXPLAINED DECISION HAS BEEN SUBMITTED BY ALL PARTIES TO THE PANEL AT LEAST 20 DAYS PRIOR TO THE FIRST SCHEDULED HEARING DATE.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
- THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS FOR BRINGING A CLAIM IN ARBITRATION. IN SOME CASES, A CLAIM THAT IS INELIGIBLE FOR ARBITRATION MAY BE BROUGHT IN COURT.
- THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS AGREEMENT. THIS ARBITRATION AGREEMENT SHOULD BE READ IN CONJUNCTION WITH THE DISCLOSURES ABOVE. ANY AND ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN OR AMONG APEX, ADVISOR, AND/OR CUSTOMER OR THEIR REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS, OR CONTROL PERSONS, ARISING OUT OF, IN CONNECTION WITH, FROM, OR WITH RESPECT TO (a) ANY PROVISIONS OF OR THE VALIDITY OF THIS AGREEMENT OR ANY RELATED AGREEMENTS, (b) THE RELATIONSHIP OF THE PARTIES HERETO, OR (c) ANY CONTROVERSY ARISING OUT OF APEX’S BUSINESS, ADVISOR’S BUSINESS OR THE CUSTOMER’S ACCOUNTS, SHALL BE CONDUCTED PURSUANT TO THE CODE OF ARBITRATION PROCEDURE OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY (“FINRA”). ARBITRATION MUST BE COMMENCED BY SERVICE OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE. THE DECISION AND AWARD OF THE ARBITRATOR(S) SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES, AND ANY JUDGMENT UPON ANY AWARD RENDERED MAY BE ENTERED IN A COURT HAVING JURISDICTION THEREOF, AND NEITHER PARTY SHALL OPPOSE SUCH ENTRY. 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 de-certified; or (iii) 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 extent stated herein.
- Representations. Customer represents and warrants that Customer is of majority age, is not an employee of any exchange, corporation of which any exchange owns a majority of stock, or member of any exchange, member firm, or member corporation registered on any exchange, or of a bank, trust company, insurance company, or of any corporation, firm, or individual engaged in the business dealing either as broker or as principal in securities, bills of exchange, acceptances, or other forms of commercial paper. If Customer is a corporation, partnership, trust, or other entity, Customer represents that its governing instruments permit this Agreement, that this Agreement has been authorized by all required persons, and that the signatory on the New Account Application is authorized to sign on behalf of and bind Customer. Customer represents that it shall comply with all applicable laws, rules, and regulations in connection with the Account. Customer further represents that no one except Customer has an interest in the Account or other accounts of Customer with Apex.
- Tax Treaty Eligibility. This Agreement shall serve as the Customer’s certification that Customer is eligible to receive tax treaty benefits between the country of residence indicated on the new account form and the country or countries of origin holding jurisdiction over the instruments held within Customer’s account.
- Joint Accounts. If the New Account Application indicates that the Account shall consist of more than one person, Customer’s obligations under this Agreement shall be joint and several among them all. References to “Customer” shall include each of the customers identified on the New Account Application. Apex may rely on transfer or other instructions from Advisor or any one of the Customers in a joint account, and such instructions shall be binding on each Customer. Apex may deliver Assets, and send confirmations, notices, statements and communications of every kind to any one of the Customers, and such action shall be binding on each Customer. Notwithstanding the foregoing, Apex is authorized in its sole discretion to require joint action by some or all Customers with respect to any matter concerning the joint account, including but not limited to the giving or cancellation of orders and the withdrawal of money or securities. In the case of Tenants by the Entirety accounts, joint action will be required for all matters concerning the joint account. Tenants by Entirety accounts are not recognized in certain jurisdictions, and, where not expressly allowed, will not be a permitted designation of the account.
- Custodial Accounts for Minors. If a custodial account was selected, such as UTMA/UGMA, as the Customer Type in the New Account Application, the custodian opening the account (“Custodian”) understands Custodian has opened a custodial account for a minor and acts as the account custodian on behalf of the minor owner. It is Custodian’s obligation to adhere to all applicable laws and regulations governing such accounts. Custodian should consult with an attorney and/or tax advisor before opening a custodial account. The age of majority varies by state. Custodian agrees to promptly inform its advisor and broker in writing upon the account owner reaching the age of majority and to facilitate the transfer of the account assets to its beneficial owner. Apex reserves the right, but shall not be obligated, to terminate the custodianship and/or transfer the account assets to the beneficial owner upon the minor reaching the age of majority as determined by the state code Custodian has included, without notice to or consent of Custodian.
- Other Agreements. If the Customer trades any options, the Customer agrees to be bound by the terms of your Customer Option Agreement. The Customer understands that copies of these agreements are available from you and, to the extent applicable, are incorporated by reference herein. The terms of these other agreements are in addition to the provisions of this Agreement and any other written agreements between you and the Customer.
- Data Not Guaranteed. Customer expressly agrees that any data or online reports is provided to the Customer without warranties of any kind, express or implied, including but not limited to, the implied warranties of merchantability, fitness of a particular purpose or non-infringement. Customer acknowledges that the information contained in any reports provided by Apex is obtained from sources believed to be reliable but is not guaranteed as to its accuracy of completeness. Such information could include technical or other inaccuracies, errors or omissions. In no event shall Apex or any of its affiliates be liable to Customer or any third party for the accuracy, timeliness, or completeness of any information made available to Customer or for any decision made or taken by Customer in reliance upon such information. In no event shall Apex or its affiliated entities be liable for any special incidental, indirect or consequential damages whatsoever, including, without limitation, those resulting from loss of use, data or profits, whether or not advised of the possibility of damages, and on any theory of liability, arising out of or in connection with the use of any reports provided by you or with the delay or inability to use such reports.
- Payment for Order Flow Disclosure. Depending on the security traded and absent specific direction from Customer, equity and option orders are routed to market centers (i.e., broker-dealers, primary exchanges or electronic communication networks) for execution. Routing decisions are based on a number of factors including the size of the order, the opportunity for price improvement and the quality of order executions, and decisions are regularly reviewed to ensure the duty of best execution is met. Apex may receive compensation or other consideration for the placing of orders with market centers for execution. The amount of the compensation depends on the agreement reached with each venue. The source and nature of compensation relating to Customer’s transactions will be furnished upon written request.
- Credit Check. Apex is authorized, in its discretion, should Apex for any reason deem it necessary for its protection, to request and obtain a consumer credit report for Customer.
- Miscellaneous. If any provision of this Agreement is held to be invalid or unenforceable, it shall not affect any other provision of this Agreement. The headings of each section of this Agreement are descriptive only and do not modify or qualify any provision of this Agreement. This Agreement and its enforcement shall be governed by the laws of the state of Texas and shall cover individually and collectively all accounts which the Customer has previously opened, now has open or may open or reopen with you, or any introducing broker, and any and all previous, current and future transactions in such accounts. Except as provided in this Agreement, no provision of this Agreement may be altered, modified or amended unless in writing signed by Apex’s authorized representative. This Agreement and all provisions shall inure to the benefit of Apex and its successors, whether by merger, consolidation or otherwise, Apex’s assigns, and all other persons specified in Paragraph 10. Apex shall not be liable for losses caused directly or indirectly by any events beyond Apex’s reasonable control, including without limitation, government restrictions, exchange or market rulings, suspension of trading or unusually heavy trading in securities, a general change in economic, political or financial conditions, war or strikes. Apex may transfer the accounts of Customer to Apex’s successors and assigns. This Agreement shall be binding upon Customer and the heirs, executors, administrators, successors and assigns of Customer. Failure to insist on strict compliance with this Agreement is not considered a waiver of Apex’s rights under this Agreement. At Apex’s discretion, it may terminate this Agreement at any time on notice to the Customer and the Customer will continue to be responsible for any obligation incurred by the Customer prior to termination. Customer may not assign Customer’s rights or delegate Customer’s obligations under this Agreement, in whole or in part, without Apex’s prior consent.
- SIPC Protection. As a member of the Securities Investor Protection Corporation (SIPC), funds are available to meet customer claims up to a ceiling of $500,000, including a maximum of $250,000 for cash claims. For additional information regarding SIPC coverage, including a brochure, please contact SIPC at (202) 371-8300 or visit www.sipc.org. Apex has purchased an additional insurance policy through a group of London Underwriters (with Lloyd’s of London Syndicates as the Lead Underwriter) to supplement SIPC protection. This additional insurance policy becomes available to customers in the event that SIPC limits are exhausted and provides protection for securities and cash up to certain limits. Similar to SIPC protection, this additional insurance does not protect against a loss in the market value of securities.
- Sweep Program. If the Customer elects to participate in one of your FDIC or money market sweep programs, the Customer acknowledges and agrees that: (a) the Customer has read and understands the sweep program terms and conditions and/or prospectuses available at http://www.apexclearing.com/disclosures/ and is aware of the products available in such sweep programs; (b) you may make changes to your FDIC and/or money market sweep programs and products at any time, in your sole discretion and with or without notice to Customer; (c) the free credit balances in the Customer’s Account may begin being included in the sweep program upon Account opening; and (d) you have no obligation to monitor the applicable sweep program elected for the Customer’s Account or to make recommendations about, or changes to, the sweep program that might be beneficial to the Customer.
- Trusted Contacts. Under FINRA Rule 4512 your broker is required to disclose to you (the customer) that your broker, Apex Clearing Corporation or an associated person of your broker or Apex Clearing Corporation is authorized to contact the trusted contact person and disclose information about the customer’s account to address possible financial exploitation, to confirm the specifics of the customer’s current contact information, health status, or the identity of any legal guardian, executor, trustee or holder of a power of attorney, or as otherwise permitted by FINRA Rule 2165.
- ACH Agreement. If Customer requests Automated Clearinghouse (“ACH”) transactions from Customer’s Account at Apex, Customer authorizes Apex to originate or facilitate transfer credits/debits to/from Customer’s eligible bank account. Transactions sent through the NACHA network will be subject to all applicable rules of NACHA and all rules set forth in Federal Reserve Operating circulars or other applicable laws and regulations. ACH deposits to Customer’s brokerage account are provisional. If the beneficiary bank does not receive final and complete payment for a payment order transferred through ACH, the beneficiary bank is entitled to recover from the beneficiary any provisional credit and Apex may charge Customer’s account for the transaction amount. Customer understands Apex or Customer’s Advisor may not notify Customer of any returned or rejected ACH transfers. Customer agrees to hold Apex and Apex’s agents free of liability for compliance with these instructions. Customer hereby agrees to hold harmless Apex and each of its affiliates, offices, directors, employees, and agents against, any claims, judgments, expenses, liabilities or costs of defense or settlement relating to: (a) any refusal or failure to initiate or honor any credit or debit request, by Apex or Advisor, whether (i) due to a lack of funds necessary to credit Customer’s account; (ii) due to inadvertence, error caused by similarity of account holder names or (iii) otherwise provided Apex has not acted in bad faith; (b) if the routing number is incorrect or the routing number or other information changes at another U.S. financial institution or (c) any loss, damage, liability or claim arising, directly or indirectly, from any error, delay or failure which is caused by circumstances beyond Apex’s direct control. To the extent permitted by applicable law or regulation, Apex hereby disclaims all warranties, express or implied, and in no event shall Apex be liable for any special indirect, incidental, or consequential damages whatsoever resulting from the ACH electronic service or any ACH transactions. Nothing in this herein shall constitute a commitment or undertaking by Apex or Advisor to effect any ACH transaction or otherwise act upon the instructions of Customer or Advisor with respect to any account at Apex. This authorization shall remain in full force and effect until Customer revokes authorization by written notification to Advisor that is forwarded to Apex. Customer understands that Apex has the right to terminate or suspend the ACH agreement at any time and without notice.
Under penalties of perjury, I certify that: (1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) I am a U.S. citizen or other U.S. person (defined below), and (4) The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.
Definition of a U.S. person. For federal tax return purposes, you are considered a U.S. person if you are: An individual who is a U.S. citizen or U.S. resident alien, A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, An estate (other than a foreign estate), or A domestic trust (as defined in Regulations section 301.7701-7). The Internal Revenue Service does not require your consent to any provisions of this document other than the certifications required to avoid backup withholding.
Registered Investment Advisor Authorization
I hereby authorize Apex Clearing Corporation to (i) execute trades and process transactions in the Account as directed by Advisor; (ii) remit checks, wire funds, and to otherwise make disbursements of funds held in the Account to (1) banks, broker-dealers, investment companies, or other financial institutions to an account of identical registration, or (2) you at your address of record at Advisor’s instruction, and (iii) pay investment advisory and other fees from the Account in the amount Advisor instructs without inquiry or investigation, in accordance with the terms of the Customer Account Agreement and Advisor Authorization.
Trusted Contact Disclosure
Under FINRA Rule 4512 Apex Clearing Corporation is required to disclose to you (the customer) that Apex Clearing Corporation or an associated person of Apex Clearing Corporation is authorized to contact the trusted contact person and disclose information about the customer’s account to address possible financial exploitation, to confirm the specifics of the customer’s current contact information, health status, or the identity of any legal guardian, executor, trustee or holder of a power of attorney, or as otherwise permitted by FINRA Rule 2165.
Apex FDIC-Insured Sweep Program Terms and Conditions
You may elect to have dormant cash in your brokerage account at Apex Clearing Corporation (“Apex”) “swept” into and out of an interest-bearing FDIC-insured deposit account opened by Apex at a participating bank (“Program Bank”), at no cost to you, by participating in the Apex FDIC-Insured Sweep Program (the “Program”) where it will earn interest paid into your Apex Account. By electing to have your excess cash swept through the Program, you hereby accept and agree to these terms and conditions, and appoint Apex as your agent in creating deposit accounts and providing services in accordance with the Program. These terms and conditions are in addition to those contained in your account agreements and any other agreements you may have with Apex or your agent. When opening a brokerage account carried by Apex (your “Apex Account”), you will have the option to direct your agent to have you and your Apex Account participate in the Program. If you do not affirmatively elect to participate, your excess cash will remain dormant in your Apex Account. Existing participants in the Program may terminate their participation by giving notice to their agent. If you have an Apex Account but are not participating in the Program, you may direct your agent to transfer it into the Program at any time. Participation in the Program does not guarantee any or all of your excess cash balance will be swept to a Program Bank, and all sweeps shall be in Apex’s sole discretion. Apex reserves the right to refuse to allow any Apex Account to enter the Program and to remove any Apex Account from participation in the Program at any time at Apex’s discretion.
- Deposits. Once you elect to participate in the Program, you agree that Apex may begin to sweep the excess cash balance in your account into sweep deposit accounts it has established at one or more Program Banks on behalf of you and other Apex customers. These deposit accounts are omnibus accounts titled in such a way to disclose the funds swept into them are those of customers and not of Apex. Your ownership in these accounts will be evidenced by an entry on Apex’s records for each Program Bank at which your funds are on deposit and by disclosure on your Apex Account statement. You will not be given any additional evidence of ownership. If there is excess cash in your Apex Account such that a single deposit would put that amount beyond FDIC coverage, then Apex will sweep the excess cash into multiple Program Banks. Apex may transfer balances between Program Banks at any time at its discretion and may utilize one or more intermediary banks to route funds in the Program. While Apex provides the Program as a service to its customers, Apex shall be under no obligation to sweep any excess cash in your account into a Program Bank at any time. You may not deposit funds into the Program directly with any Program Banks; all funds in the Program must be deposited through your Apex Account.
- Withdrawals. By enrolling in the Program, you consent to have Apex, as your agent, automatically withdraw any and all of your funds in the Program at Program Banks in the event of a debit in your Apex Account, or to pay for securities purchased for or sold to your Apex Account, or otherwise in Apex’s discretion. If funds that have been swept to a Program Bank are needed to cover a purchase, withdrawal, or other debit in your Apex Account, the funds will be automatically swept out of the Program Bank(s) and back into your Apex Account by Apex. You will not need to do anything for this process to occur. Although Apex may sweep your excess cash balance to an account at a Program Bank, you shall not be able to make withdrawals from that account, even if you contact the Program Bank directly. Your excess cash balance is only available through your Apex Account. Please contact your broker with any questions on accessing your cash balance.
- Access to Your Excess Cash Balance. Use of your Apex Account will not be affected when your excess cash is swept to a Program Bank. You will still be able to make purchases and withdrawals using your excess cash balance through your Apex Account at any time. However, any funds withdrawn or used for purchase will no longer be available to sweep to a Program Bank. You can only access your excess cash balance directly through your Apex Account. Being swept to a Program Bank shall not provide protection to your excess cash balance from legal processes such as levies or garnishments served on Apex.
- Interest. You may earn interest on excess cash balances that Apex sweeps to Program Banks. The interest rate will be based on numerous factors, including the current interest rate environment, and is subject to change without notice. Over any given period, the interest rates on your swept excess cash balances may be lower than the rate of return on similar non-FDIC-insured investments or deposit accounts offered outside of the Program, including deposit accounts held directly by you with a Program Bank. Interest payments to you and movements of your excess cash balance will be reflected on your Apex Account statement. Interest accrues daily and is paid into the deposit account at each Program Bank. Any interest paid to you will be posted directly to your Apex Account. Interest rates and APY on funds in the Program will vary over time and can change daily without notice to you. Please contact your advisor for specific details on current interest rates and payments.
- FDIC Insurance & SIPC Coverage. Your excess cash balances that Apex sweeps to a Program Bank, together with any non-Program deposits you may have at the same Program Bank, are insured by the Federal Deposit Insurance Corporation (“FDIC”) up to a standard maximum amount in accordance with the FDIC’s rules. The applicable FDIC insurance limit depends on a number of factors. Please consult www.fdic.gov for further details. If you have both excess cash and non-Program funds at the same Program Bank held in the same right and legal capacity, you must aggregate all such deposits for purposes of determining your FDIC insurance coverage. If that aggregate exceeds the applicable FDIC insurance limit, the FDIC may not insure the funds in excess of the applicable limits. Apex recommends you contact your financial and legal advisors for further details on FDIC limits and advice on participation in the Program. Apex shall have no obligation to consider any non-Program deposits when sweeping your excess cash balances. Please note that there is no specific time period during which the FDIC must make insurance payments available and the FDIC may require you provide certain documentation before insurance payments are made. Apex is not responsible for monitoring the amount of your excess cash balance swept to any Program Bank to determine whether it exceeds the limit of available FDIC insurance. You are solely responsible for monitoring the total amount of your assets on deposit with each Program Bank (including non-Program funds and accounts) in order to determine the extent of FDIC insurance coverage available to you on those deposits, including Program deposits. Apex shall not take into account any money you have on deposit at a Program Bank outside of the Program. Any securities and funds held in your Apex Account (as opposed to funds swept to a Program Bank) are (i) not insured by the FDIC, (ii) have no bank or government guarantees, and (iii) may have associated risks. Securities and funds not swept to a Program Bank are held in your Apex Account and are covered by the Securities Investor Protection Corporation (“SIPC”), of which Apex is a member. Your excess cash balance is only eligible for FDIC coverage once it is in an account at a Program Bank. However it shall be covered by SIPC while held by Apex and in transit to or from a Program Bank. As a member of SIPC, funds are available to meet customer claims up to a current ceiling of $500,000, including a maximum of $250,000 for cash claims. For additional information regarding SIPC coverage, including a brochure, please contact SIPC at (202) 371-8300 or visit www.sipc.org. Apex has purchased an additional insurance policy through a group of London Underwriters to supplement SIPC protection. This additional insurance policy becomes available to customers in the event that SIPC limits are exhausted and provides protection for securities and cash up to certain limits. Similar to SIPC protection, this additional insurance does not protect against a loss in the market value of securities. SIPC coverage does not cover fluctuations or losses in the market value of your investments.
- Relationship. Apex receives payment from each Program Bank in connection with its participation in and operation of the Program. Apex’s payment from the Program Banks is paid as interest. This payment is typically based on the average aggregate amount of funds at each Program Bank and the current interest rate environment. The payment to Apex by one Program Bank may differ from payment of another Program Bank, even if the deposit amounts are identical. Apex may pay to its authorized agent or third-party an amount for facilitating the operations of the Program, which may be a portion of the payment made to Apex by the Program Banks.
- Taxation. If you are paid interest in the Program in a given year, you will receive a Form 1099, if applicable, reflecting the interest you have earned in that year. Nothing in these Terms and Conditions should be construed as to constitute legal or tax advice. Please contact your own legal or tax advisor. Apex may be required to withhold United States federal income tax at the prevailing rate on taxable distributions payable to certain depositors who fail to provide sufficient and correct taxpayer identification information or to make required certifications or who have been notified by the Internal Revenue Service that they are subject to backup withholding. Please consult your tax advisor for further information or visit www.irs.gov.
- Limitation of Liability to Maximum Extent Permitted by Law. IN NO EVENT SHALL APEX, THE PROGRAM BANKS, OR THEIR AGENTS, AFFILIATES, ASSIGNS, SUBSIDIARIES, OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY NATURE NO MATTER THE CONTEXT IN WHICH IT IS ASSERTED AND INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, BUSINESS INTERRUPTION OR ANY PENALTIES OR PUNITIVE DAMAGES. Any failure by Apex, its agent, your advisor, or any Program Bank shall not constitute a violation or subject them to any liability if caused in any way by your negligence or willful act, force majeure, suspension of payment by another institution, market irregularity or loss of market access, war, act of terrorism, or any other circumstances beyond the control of them.
- Compliance with Legal Process. Apex, its agent(s), and the Program Banks may comply, without notice to you, with any writ of attachment, execution, garnishment, levy, restraining order, subpoena, warrant, regulator or government request, or other legal process that the recipient believes to be valid. You agree to indemnify and hold harmless Apex, its agent(s) and the Program Banks from all actions, claims, liabilities, losses, costs, attorney’s fees, and damages that may be associated with their compliance with any legal process in accordance with this section and you agree they may comply with any legal process received, even if such is not served properly on the recipient in accordance with all applicable legal requirements, so long as compliance is not done in bad faith.
- No Warranties Except As Specifically Set Forth in These Terms and Conditions. NO REPRESENTATIONS OR WARRANTIES (ORAL OR WRITTEN, STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE) ARE MADE TO YOU REGARDING THE PROGRAM, INCLUDING, WITHOUT LIMITATION, AS TO MERCHANTABILITY, FITNESS FOR ANY PURPOSE, CONFORMITY TO ANY DESCRIPTION OR REPRESENTATION, NONINTERFERENCE, OR NONINFRINGEMENT. YOUR INVESTMENT ADVISOR, OTHER PERSON OR ENTITY IS NOT AUTHORIZED TO MAKE, OR MAY THEY MAKE, ANY REPRESENTATIONS OR UNDERTAKINGS ON BEHALF OF APEX OR THE PROGRAM BANKS OR THEIR RESPECTIVE AFFILIATES OR AGENTS WITH RESPECT TO THE PROGRAM.
- No Guarantee of Program Banks. Your participation in the program is a direct obligation of the applicable Program Bank(s) to you. Apex is under no such obligation and Apex does not guarantee the financial condition of any Program Bank. Under federal banking regulations, a Program Bank may exercise its right to require prior notice of up to seven days before permitting your excess cash balance to be swept out. In the event of a failure of a Program Bank, there may be a time period during which you may not be able to access your money. Interest in a Program Bank account is not transferable.
- Additional Disclosures.
- Corporate Status. Apex is a registered broker-dealer and is a member of the Financial Industry Regulatory Authority. Apex is not a bank or an investment advisor. Apex and the Program Banks do not provide advice regarding whether the Program is beneficial or right for you or your Apex Account.
- Acceptance of Terms and Conditions. By continuing to maintain your Apex Account and participate in the Program, you accept the terms and conditions herein and you accept and will be legally bound by any new terms and conditions.
- Obligation to Review Statements. In accordance with your account opening documents with Apex, you must carefully examine your Apex Account statement once you receive it. If you feel that there is an error, you must notify Apex through your advisor promptly. Failure to comply with this notification requirement may bar you from claiming any error involving your Program Bank accounts.
- Escheatment. In certain circumstances, Apex and the Program Banks may be required by law to escheat a portion or all of your excess cash balance and Apex Account to a state due to account inactivity for certain time periods, in accordance with state law. If funds are escheated to a state, you must file a claim with that state to reclaim the funds.
- Assignment. You may not assign these terms and conditions or your participation in the Program, except through an assignment of your entire Apex Account. Apex may assign its rights and obligations under the Program and these terms and conditions without prior notice to you and without obtaining your consent.
- Set Off. Under the terms of your account agreements with Apex, Apex may charge or set off assets from your Apex Account against any obligations or debt you owe to Apex. This right extends to any excess cash balances that are swept to a Program Bank and swept funds shall have no additional protection solely because they are with a Program Bank.
- No Waiver. There shall be no waiver by Apex of any of these terms and conditions unless such waiver is in writing and signed by Apex. No failure or delay by Apex, its agent, or any Program Bank in exercising any right, power, or privilege hereunder shall operate as a waiver thereof nor shall any partial exercise preclude further or full exercise of any right, power, or privilege.
Severability. If any term, provision, covenant or restriction of these terms and conditions is held to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way, to the maximum extent allowed by law, be affected, impaired, or invalidated.
- Entire Agreement. These terms and conditions, any additional documents provided to you by Apex, its agent, or any Program Bank concerning the Program, and your account opening agreements with Apex constitute the entire agreement with you regarding the Program and supersede all prior agreements, both oral and written, with respect to the subject matter herein. These terms and conditions are to be read in conjunction with, and not independently of, your Customer Account Agreement with Apex. For all purposes, your participation in the program is through your Apex Account and is subject to all terms of your Customer Account Agreement with Apex and any other account opening agreements you have with Apex.
- Controlling Document. In the event of any inconsistency between these terms and conditions and a provision of any such other document provided to you in connection with the Program, these terms and conditions shall prevail.
Governing Law and Arbitration. These terms and conditions shall be construed in accordance with and governed by the laws of the State of Texas. In accordance with your account opening agreements with Apex, any disputes regarding the Program or your Apex Account shall be subject to and controlled by the Arbitration Agreement set forth in your Customer Account Agreement with Apex shall fully control.
- Headings and Construction. The headings herein are included only for convenience and shall not be considered in the construction or interpretation of these terms and conditions. Any singular items herein shall be deemed to include the plural and vice versa. Any use of the term “includes” or any derivative or synonym of it shall be deemed to be followed by the words “without limitation”. References to any agreement or document provided to you shall include that agreement or document as amended, modified, supplemented, or replaced from time to time. In any construction of these terms and conditions, it shall not be construed against a party on the basis of that party potentially being the drafter of the terms and conditions.
THESE TERMS AND CONDITIONS ARE SUBJECT TO THE PREDISPUTE ARBITRATION CLAUSE CONTAINED IN YOUR CUSTOMER ACCOUNT AGREEMENT GOVERNING YOUR APEX ACCOUNT. PLEASE REVIEW THE PREDISPUTE ARBITRATION CLAUSE IN YOUR CUSTOMER ACCOUNT AGREEMENT CAREFULLY.
Transfer on Death Registration
To my Broker/Dealer (You or Your), I (We) wish to create a transfer on death (TOD) registration for the account listed above. I (We) hereby designate the person(s) identified below ( Beneficiary(ies) ) to receive all monies, securities and other assets held in the account listed above upon my (our) death, or the death of the last surviving account owner in the case of a joint account. I (We) may change the designation of the beneficiary(ies) only by completing a new Transfer on Death Beneficiary Designation Form. The Beneficiary Designation may not be revoked or changed by will, codicil, trust document or other testamentary document. You may rely on the latest Beneficiary Designation in your possession and no change in Beneficiary shall be effective until actually received and accepted by you.
I (We) understand that you have entered into an agreement with Apex with respect to the execution and clearance of securities. I (We also understand that because of the complex legal and tax issues involved, neither you nor Apex will advise whether the TOD designation is appropriate for tax or estate planning. I (We) acknowledge that the ability to register a securities account in TOD form is created by state law and not all states have enacted such laws. I (We) have been advised that I (we) should consult my (our) own legal and tax advisers before electing or revoking the TOD account designation as I (we) deem appropriate.
I (We) understand that upon my (our) death you many require my (our) Beneficiary(ies) to provide you with certain documents as you may deem necessary prior to instructing Apex to move the assets from my (our) TOD account into the Designated beneficiary(ies’) account(s).
I acknowledge and agree that upon my (our) death, distribution will be made to my (our) designated beneficiaries in the following manner:
- Primary Beneficiary(ies). Any interest I (We) may have in this account will be paid in equal proportions, unless otherwise indicated, to the primary beneficiary(ies) I have designated. If the death of one or more designated Primary Beneficiary(ies) precedes my (our) death, the interest they would have received from this account will be paid, upon my (our) death, to my surviving Primary Beneficiary(ies) Pro Rata such that 100% is paid to the surviving primary beneficiary(ies).
- Contingent Beneficiary(ies). If none of my Primary Beneficiaries survives me (us), any interest I (We) have in this account will be paid in equal proportions unless otherwise indicated to the Contingent Beneficiary(ies) I (We) have designated. If the death of one or more designated Contingent Beneficiary precedes my (our) death, the interest they would have received from this account will be paid, upon my (our) death, to my surviving Contingent Beneficiary(ies) Pro Rata such that 100% is paid to the surviving Contingent beneficiary(ies).
- No Surviving Beneficiary(ies). If none of the Primary or Contingent beneficiaries I (We) have designated survives me (us), any interest I (We) may have in this account shall pass as if my (our) Transfer on Death instructions did not exist. I (We) understand and agree that Apex, may register and hold the securities in my (our) TOD account in Apex’s name or other “street” or nominee name and that this will create no duty on Apex’s part to determine registration or ownership of the account as a whole before or after my (our) death.
In consideration for establishing this registration and accepting the Beneficiary Designation, I (we) (including my (our) estate(s), heirs, spouse, successors in interest, and all Beneficiaries named herein) shall indemnify and hold harmless you and Apex (and affiliates, directors, officers, control persons, agents and employees thereof) from and against all claims, actions, costs and liabilities, including attorneys’ fees, by person or entity arising out of or relating to this account registration and transfers hereunder.
Apex reserves the right to refuse to accept or renew this TOD Beneficiary Designation Form and may terminate it at any time in its sole discretion and for any reason.
If any provision hereof is or at any time should become inconsistent with any present or future law, rule or regulation of any securities or commodities exchange or of any state or other sovereign government or an agency or regulatory body thereof, and if any of these entities have jurisdiction over the subject matter of this TOD Beneficiary Designation Form, said provision shall be deemed to be superseded or modified to conform to such law, rule or regulation, but in all other respects the TOD Beneficiary Designation Form shall continue and remain in full force and effect.
The provisions of this TOD Beneficiary Designation Form, including indemnities stated herein, shall be binding upon the Account Holder’s estate, Beneficiaries, heirs, executors, administrators, successors, and assigns, shall insure to the benefit of each of you and Apex as your respective successors, assigns and affiliated companies, and shall survive the termination of this TOD Beneficiary Designation Form or the TOD Account.
Spouse’s signature is required if the spouse and/or Account Holder reside(s) in a Community Property or Marital Property State, and the spouse is not an account holder, or named as the sole primary beneficiary. By signing, spouse voluntarily and irrevocably consents to the beneficiary designation and to Apex paying all sums due upon death as designated above subject to the provisions of this Transfer on Death (TOD) Beneficiary Designation Form.