Composer Technologies Inc.
Investment Advisory Agreement
This investment advisory agreement (this “Agreement” or “Management Agreement”) sets out the terms and conditions under which Composer Technologies Inc. (“Composer”, “we”, or “us”), a registered investment adviser, will provide ongoing limited discretionary management services with respect to the assets in your investment account (the “Investment Account”). This Agreement will become effective, and you will become our client (“Client”, “you”, “your” or similar terms), on the date you sign it. If your Investment Account relates to the assets of your Traditional Individual Retirement Account or Roth IRA (each an “IRA”), “Client”, “you” or “your” refers to both you, as the settlor of the IRA, and the IRA. You will sign this Agreement by proceeding with the Composer sign up and login process. Your agreement to sign up will constitute your electronic signature. Your electronic signature will be the same as if you signed a paper agreement by hand.
In order to have Composer manage your Investment Account on an ongoing basis, you will need to open a securities brokerage account and complete an account agreement with Alpaca Securities LLC (“Alpaca” or “Custodian”), an SEC registered broker-dealer, and be subject to the terms of the Alpaca’s customer agreement (the “Alpaca Customer Account Agreement”). Alpaca will provide trade execution, custody, clearing, and settlement services, as well as recordkeeping and reporting services, to you. You can open your Investment Account instantly on any device by visiting our website, after you electronically sign these Agreements. If your Investment Account relates to the assets of an IRA, participation in the platform requires that the IRA establish a custodial relationship with Alpaca and enter into an Alpaca Customer Account Agreement pursuant to which Alpaca will provide the foregoing services to the IRA. Composer may delay establishing an Investment Account at Alpaca until such time as the Client authorizes a contribution to fund the Investment Account and/or until such time as Composer receives all required account opening information from you in order to establish the Investment Account.
You and we agree:
1. ACCOUNT MANAGEMENT SERVICES.
The Client hereby appoints Composer as its investment adviser and grants us limited power-of-attorney with limited discretionary trading authority to manage and trade the assets in your Investment Account (the “Services”). We accept that appointment under the terms and conditions set forth in this Agreement.
Composer will not provide investment advice other than the Services described in this Agreement. You acknowledge that (i) Composer will deliver the Services predominantly through https://InvestComposer.com (the “Composer Website”). You may contact Composer by email (firstname.lastname@example.org) during its business hours regarding technical questions about the Composer Website.
Through the Composer Website, you will provide us information about yourself (including your income, investment goals, time horizon and net assets), and, upon evaluating your information, Composer will recommend an investment portfolio for you from among the Firm’s model portfolios (“Model Portfolios”). You may choose to manually select one of the target asset allocations other than the one recommended or currently in effect. While we recommend a Model Portfolio, you may manually choose a different Model Portfolio and disregard our recommendation of a Model Portfolio by us. You may also choose to manually add or replace certain securities into the Model Portfolio. Based on your inputs following our recommendation of a Model Portfolio, if any, we recommend a volatility threshold for your Investment Account. We will then implement and maintain (rebalance) the portfolio within a specific range of the target allocation, even when the market prices of securities in your Investment Account fluctuates. You may modify your Investment Account following initial implementation by us.
You authorize us, without your prior consultation, consent or approval, to give instructions to Alpaca to implement securities transactions for your Investment Account. Our authority will include the ability to: (i) buy, sell and trade United States (“U.S.”) equity securities; (ii) invest in and trade inverse exchange traded funds (“ETFs”); (iii) employ hedging strategies; (iv) periodically rebalance your portfolio (unless you opt out of automatic rebalancing); and (v) implement all of the above based on a Model Portfolio and any changes you make on the Composer Website regarding portfolio construction.
In addition, Composer shall have the authority in connection with its provision of advisory services under this Agreement (i) to determine when, how often, and in what amounts to invest or reinvest dividends in your Investment Account; (ii) to determine the timing of purchases in relation to deposits; and (iii) to determine the timing of sales and withdrawals in relation to requests for withdrawals or transfers.
If you have placed a security freeze on your personal information and credit, you consent to the temporary lifting of your security freeze for the purposes of opening your Investment Account with Alpaca, and to the use of any credit reporting facility or agency report in connection with your Account. Credit will not be extended, as in the case of a margin account, unless Alpaca or an authorized person contacts you using the contact method provided within the Composer Website.
You also authorize us to deliver to Alpaca (or any other securities brokerage firm executing transactions on behalf of the Investment Account) a copy of this Agreement as evidence of the authority of Composer to act for and on behalf of your Investment Account.
You acknowledge that Composer does not provide: (i) comprehensive financial planning services, and its Services are not a complete investment program; (ii) tax, accounting or legal advice, nor prepare any legal or accounting documents for the implementation of any of the Client’s financial or investment plans; and (iii) custody of your Investment Account assets. You are encouraged to consider additional asset classes, strategies and investments to meet your overall investment needs and objectives; and to consult with your tax advisor regarding any tax consequences related to your Investment Account. The Client agrees to review information available to the Client regarding the securities, as well as the brokerage statements, transaction confirmations and tax reporting forms provided by the Custodian for tax-related information. Each Client must rely upon its own representatives, including its own legal counsel and accountant, as to legal, tax and related matters concerning any assets in the Investment Account or any Investment Account transactions and for preparation of any legal, accounting or tax documents. You can access tax documents through the Composer Website when such documents are ready. You will also be able to download them from the Custodian’s website. The Client and Client’s tax advisors are responsible for how investments and the transactions in the Client’s Investment Account are reported to the Internal Revenue Service or any other taxing authority. Composer assumes no responsibility to the Client for the tax consequences of any transaction.
Moreover, neither Composer nor any of its affiliates warrants, represents or otherwise guarantees that an IRA, or any other type of account subject to this Agreement is compliant with the Internal Revenue Code of 1986, as amended (the “Code”) in form or function or that any deposits are compliant with the terms of such account or law. Furthermore, neither Composer nor any of its affiliates is responsible for monitoring your IRA, or any other type of account subject to this Agreement for compliance with the Code or determining your individual tax treatment regarding such account. You understand and agree that the responsibility for the establishment and maintenance of an IRA and such account’s compliance with the requirements of the Code, and determining your individual tax treatment regarding such account remains exclusively your responsibility. In addition, you understand and agree that neither Composer nor any of its affiliates is responsible for withholding any tax penalties that may apply to your IRA, or any other type of account subject to this Agreement or for any state or federal income tax withholding, except as may otherwise be required by applicable law. You understand and agree that you are solely responsible and liable for (i) maintaining and making contributions to, and requesting or taking required minimum distributions from, your IRA; and (ii) applying any and all limitations or restrictions applicable to contributions or deposits into, or transfers or withdrawals from, your IRA.
Composer will be responsible for the review and evaluation of your current financial information that you provide to us and will make its Model Portfolio recommendation based on that information. It is your responsibility to update your information on the Composer Website and update the information through the Composer Website promptly if there are changes to your financial situation, goals, objectives, personal circumstances, time horizon or if other relevant information changes or becomes available. You are solely responsible for evaluating the merits and risks associated with any investments and the Model Portfolio recommended by Composer or any changes to such Model Portfolio initiated by you.
Composer further reserves the right, in its sole discretion from time to time, upon providing prior notice to Clients, to engage any investment service provider from which Composer may obtain any or all investments, change any such investment service provider and to make additional investment service providers available through the platform. In providing its services, Composer or any of its affiliates may, subject to applicable laws and regulations, engage unaffiliated vendors or other contractors to aid it in fulfilling its duties under this Agreement or to provide ancillary enhancements or features of the services contemplated herein. Additionally, in performing its obligations under this Agreement, Composer may, at its own discretion, delegate any or all of its discretionary investment, advisory, and other rights, powers, and functions hereunder to any of its affiliates or to any third parties, without your written consent, provided that Composer shall always remain liable to you for its obligations hereunder.
2. ACCOUNT REQUIREMENTS.
Composer may reserve the right from time to time to require a minimum investment to create an account. For example, certain of our investment strategies may require a minimum asset threshold for access. The Client retains sole ownership of the Investment Account (i.e. the right to withdraw securities or cash and receive transaction confirmations).
3. CLIENT INFORMATION
You confirm that all of the information you have provided through the Composer Website is true, accurate and complete in all respects. Without limiting the generality of the preceding sentence, you represent and warrant that you are neither insolvent nor have you been found by a court or regulatory body to be bankrupt or insolvent through a judicial or regulatory proceeding. You agree to notify us promptly of any change in information that may be relevant to your financial circumstances. You understand that Composer will contact you at least annually via the Composer Website, email or through any other means deemed appropriate, to request that you review your Investment Account to determine whether it should be modified. You agree to periodically review the information you have provided for accuracy and provide material updates promptly using the Composer Website. You acknowledge and agree that Composer relies on the information you provide through the Composer Website to provide the advisory services subject to this Agreement. You further acknowledge and agree that Composer shares some or all of your information with the Custodian and that, subject to the terms and conditions of the Alpaca Customer Account Agreement, the Custodian relies on such information to perform certain compliance functions including verifying your identity for customer identification purposes and anti-money laundering purposes and confirming that U.S. firms like Composer and Custodian are permitted to provide you with services under applicable U.S. economic sanctions against various countries, individuals, and organizations.
4. FUNDING THE ACCOUNT.
You will be required to connect your Investment Account to your bank or other account from which you intend to transfer moneys to fund the Investment Account (the “Funding Account”) by entering into the Composer Website, true, accurate, current, and complete information about your Funding Account, including the American Bankers Association routing number and account number for the Funding Account. You agree that, by initiating or directing a deposit, you authorize the bank or other vendor that Composer engages from time to time to facilitate the use of the Automated Clearing House (“ACH”) payment system for the transfer of money to or from the Custodian (such bank or vendor, the “ACH Operator”) to request that the financial institution that maintains your Funding Account transfer the amount of the deposit to the Custodian for deposit in your Investment Account. You agree and acknowledge that you are responsible for any fees, charges, or expenses imposed by your financial institution that maintains your Funding Account in connection with any deposit or transfer of money to or from your Investment Account. You further agree and acknowledge that, unless otherwise agreed to by Composer and the Custodian, you do not have any right to fund (or direct the funding of) any deposit or transfer of money to or from your Investment Account in any manner other than by an ACH transfer to the Custodian. Composer and the Custodian reserve the right to accept cash funded from other sources as they may mutually agree and to the extent permitted by applicable law and such cash funding methods may be subject to additional terms and conditions, which will be disclosed to you.
You acknowledge that your Investment Account will not be connected to your Funding Account unless and until you receive a confirmation through the Composer Website indicating you have successfully connected the Investment Account and Funding Account.
You further agree that, by initiating, authorizing, or directing a deposit or transfer to your Investment Account, you authorize Composer to place orders with the Custodian, in the capacity of broker/dealer, on your behalf for purchases of the securities that comprise your Investment Account the time(s) and in amounts calculated by Composer. You agree and acknowledge that any deposit or transfer to your Investment Account may not be canceled by you following the initiation and/or authorization of such transaction. In order to permit sufficient time to ensure that the transfer of assets into your Investment Account has been successfully completed by the financial institution that maintains your bank account, Composer may wait up to five Business Days after the day the Custodian credits the applicable deposit to your Investment Account to generate and place orders. As used herein, “Business Day'' means any day on which all banks (or the applicable branch thereof) involved in any transfer of funds are physically open for business during their normal business hours, and specifically excluding any U.S. federal holiday and any day on which any applicable securities exchange is not open during its normal business hours. You hereby acknowledge and agree that, as a result, each deposit or transfer you make generally will not be invested in your Investment Account for up to five Business Days and that such uninvested cash will not be subject to financial gains or losses resulting from movement in market prices during that time period.
You represent and warrant that none of the money you deposit in your Investment Account is derived from, or will be used to promote the conduct of, any crime or other illegal activity. You agree not to deposit (or direct the deposit of) any money in your Investment Account that comes from, or that will be used to promote the conduct of, any crime or other illegal activity. You represent that no individual or entity has an interest in any money you use for deposits or in any money or securities in your Investment Account other than you or any other individual you have disclosed to Composer during account opening.
You further agree that, if your Funding Account is closed or restricted after you connect it to the Investment Account, you will have no right to make additions to or withdrawals from your Investment Account unless and until: (i) the Funding Account is reopened or unrestricted; or (ii) you successfully connect a different and adequately funded Funding Account to the Investment Account. Notwithstanding the foregoing, if your Investment Account relates to the assets of an IRA, the IRA must establish a custodial relationship with Alpaca and enter into an Alpaca Customer Account Agreement with Alpaca.
You may withdraw money from your Investment Account by initiating a withdrawal request through the Composer Website at any time. Composer designs its portfolios as long-term investments and the withdrawal of assets may impair the achievement of your investment objectives. You acknowledge and agree that, notwithstanding anything to the contrary in any agreement governing your participation in the platform, including this Advisory Agreement, you will not be able to request withdrawals or sales, unless and until you connect a bank account to your Investment Account. You agree that, by requesting a withdrawal, you authorize Composer to place an order with the Custodian, in the capacity of broker/dealer, on your behalf to sell the securities in your Investment Account at the time(s) and in amounts calculated by Composer. You agree and acknowledge that any withdrawal, or transfer from your Investment Account, and/or sales of securities, may not be canceled following the initiation, authorization, and/or direction of such transaction. Composer will undertake good faith efforts to generate and place the orders for such sales on the Business Day you request a withdrawal, but you acknowledge and agree that such orders may be placed at any time within five Business Days after your request. Any withdrawal request you initiate will be sent to the ACH Operator. You agree that, by requesting a withdrawal, you authorize the ACH Operator to request that the Custodian transfer the proceeds of the applicable sales in the amount you request to your Funding Account. You acknowledge and agree that the Custodian will not initiate a transfer of money for a withdrawal until the Business Day after the last applicable sale for such withdrawal has settled and that it may take up to seven to ten Business Days after the Custodian initiates a transfer of money for the proceeds of a withdrawal to arrive at the destination account.
You further acknowledge and agree that Composer and the Custodian may require additional information from you before effecting any withdrawal request, and that such requested withdrawal may be subject to delay or cancellation in the event that you do not timely provide such additional information.
Further, when securities are withdrawn, you may be subject to transaction fees, and/or tax consequences, such as any direct or indirect local, state, federal, or foreign taxes, levies, duties or similar government assessments of any nature, including value-added, use, or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with your participation in the platform, excluding taxes based on Composer’s net income or property. If Composer and/or the Custodian has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide Composer and/or the Custodian with a valid tax exemption certificate authorized by the appropriate taxing authority. When you withdraw money from your Investment Account, the Custodian may reduce the amount of the distribution by the amount of any tax mandatory withholding as required by applicable law. You understand and agree that neither Composer nor any of its affiliates is responsible for withholding any tax penalties that may apply to your IRA, or any other type of account subject to this Agreement or for any state or federal income tax withholding, except as may otherwise be required by applicable law.
If the Investment Account relates to an IRA, all additions, contributions and withdrawals are subject to restrictions imposed on the IRA under the Code. Your IRA is intended to constitute a qualified account for tax purposes. Accordingly, if you access the funds held in your IRA, you may trigger a taxable distribution with adverse tax consequences. Moreover, if you withdraw the funds in your IRA before the age of 59-1/2, you may incur penalties in addition to tax liabilities.
6. FEES AND EXPENSES.
Composer’s Fee. Composer offers the Services for a single fixed monthly fee (“Subscription Fee”). The Subscription Fee does not include the Other Fees described below. The Subscription Fee is $30 per month. The Subscription Fee will be charged monthly in arrears. The Subscription Fee will be charged to your credit card on file. For the initial period of an engagement, the fee is calculated on a pro rata basis. In the event the Agreement is terminated, the fee for the final billing period is prorated through the effective date of the termination and the outstanding portion of the fee is charged to the Client.
Composer reserves the right to waive all or any portion of the Subscription Fee for any period for any Client or groups of Clients, at its sole discretion. Composer has sole discretion in determining whether or not any Client or potential client may receive lower fees, and Composer shall not be liable to you or any other party in connection with any such decision. If Composer lowers any fees for any Client, it has no obligation to continue to do so, and may cancel such benefit at any time. Negotiated fees may differ based on factors, including but not limited to, the type and size of the account, the historical and/or expected size and number of trades for the account and the client related services to be provided to the client.
Other Fees. Composer’s fees for the Services do not include other related costs and expenses of the investments the Client may incur through making the investments recommended by Composer in the Client’s Investment Account. Composer does not charge these fees to Clients and does not benefit directly or indirectly from any such fees. For example, a Client may incur certain charges imposed by custodians and other third parties. These include transfer fees, brokerage fees, administrative fees and other fees and taxes on brokerage accounts and securities transactions. The issuer of some of the securities or products purchased for Clients, such as ETFs or other similar financial products, may charge product fees that affect Clients. Specific to ETFs, you understand that, Composer may invest in shares of ETFs for your Investment Account in accordance with your Investment Account. As a shareholder in these ETFs (and in any money market funds), you will bear a share of the management and other expenses of such ETFs as disclosed in each ETF’s prospectus. These expenses are charged by the ETFs’ managers and service providers in the normal course of business and are reflected in the share value of the ETFs. These expenses are separate and apart from your Subscription Fee. You will receive from us a notification when ETFs (or money market funds) are purchased for your Investment Account. You agree that it is your responsibility to read the applicable prospectuses in connection with your decision to invest. Additionally, you may incur certain other charges imposed by third party financial institutions. These additional costs may include but are not limited to: paper statement fees, bounced check fees, transfer taxes, wire transfer and electronic fund fees.
Performance-based Fees. Composer does not charge any performance-based fees (that is, fees based upon a share of capital gains on or capital appreciation of the assets in an Investment Account).
Fee Payment. By signing this Agreement, you authorize Composer to charge the Subscription Fee and any other applicable fees, directly from your credit card on file. You agree and acknowledge that you are responsible for paying any and all fees, including, without limitation, the Subscription Fee, that you owe pursuant to this Agreement. You are responsible for maintaining complete and accurate billing and contact information with Composer. You acknowledge that such fees may change from time to time and will be available on the Composer Website and in the Brochure and Relationship Summary (as defined below). In the event of a change in fees, Composer will provide you notice electronically on the Composer Website. You agree to check the Composer Website from time to time for updates to the fees applicable to you.
You acknowledge that Composer designed the platform with frequent investing in mind and that the fee structure might not be economical or appropriate for individuals looking to make few or infrequent small-dollar investments. You acknowledge that the Subscription Fee may exceed the aggregate costs of purchasing separately the products and individual services that comprise the advisory services and the brokerage services offered through the Program.
7. CUSTODY OF ASSETS AND ACCOUNT STATEMENTS.
Alpaca, a “qualified custodian” under Rule 206(4)-2 of the Investment Advisers Act of 1940, as amended (the “Advisers Act”), will have possession and provide safekeeping of your assets in the Investment Account (the “Custodian”). As noted above, Composer will not act as the custodian for the assets in your Investment Account. You agree to complete the necessary application materials to open an account with the Custodian after agreeing to this Agreement. All Investment Account transactions will be effected by a payment to, or delivery by, Alpaca of all cash and/or securities due to or from the Investment Account. Composer is not permitted to instruct the Custodian to deliver funds or securities to ourselves.
Alpaca will send you electronic notice of all confirmations of securities transactions and provide account statements on a periodic basis, identifying the amount of funds and each security in the Investment Account at the end of the period and setting forth all transactions during that period. You are responsible for reviewing the confirmations and statements provided and reporting any discrepancies in the information directly to Alpaca. You authorize us to instruct Alpaca to send us trade confirms and monthly statements showing all transactions occurring in your Investment Account during the period covered. You acknowledge that Composer is not responsible for the obligations of the Custodian or any successor custodian and that Composer and the Custodian have separate agreements with you that allocate separate sets of rights and obligations between you and the respective entity. We will not be responsible for any loss incurred by reason of any act or omission by the Custodian, whether in its capacity as a custodian or a broker/dealer; provided, however, that we will make reasonable efforts to require that it perform its obligations with respect to the Investment Account. All transactions concerning the Investment Account shall be binding upon the Client at the Client’s sole risk.
8. BROKERAGE AND TRANSACTION EXECUTION.
Upon the Client’s agreement to this Agreement and the agreements necessary to open a securities brokerage account with Alpaca, the Custodian shall also act as the broker/dealer which will execute all orders on behalf of the Investment Account. Composer anticipates (but is not obligated to) that it will combine or “batch” account orders to obtain “best execution,” to negotiate more favorable commission rates or to allocate equitably among the Composer Clients differences in prices and commissions or other transaction costs that might have been obtained had such orders been placed independently. Under this procedure, transactions will be averaged as to price and transaction costs, and will be allocated among the Investment Accounts in proportion to the purchase and sale orders placed for each Investment Account on any given day. If Composer cannot obtain execution of all the combined orders at prices or for transaction costs that Composer believes are desirable, Composer will allocate the securities Composer does buy or sell as part of the combined orders by following Composer’s order allocation policies and procedures.
To participate in the Composer platform, you must direct all brokerage transactions for your Investment Account to Alpaca. You cannot designate or select a different broker for trade execution. Composer anticipates that Alpaca will provide “best execution” for the Client. However, in the event Composer determines that Alpaca does not at any time provide “best execution” in its capacity as a broker/dealer, Composer reserves the right to select a different broker/dealer which will provide “best execution” with respect to such transaction. “Best execution” includes the amount of broker/dealer fees or transaction costs that will be charged to the Investment Account in connection with any trade, but it may also include other criteria and benefits. As such, Composer may retain Alpaca as the broker/dealer with respect to the Investment Account even if its broker/dealer fees are not the lowest fees which could be charged for such transaction, in consideration for other benefits that the broker/dealer offers to Composer.
9. PROXIES AND CORPORATE LEGAL ACTIONS.
Composer does not exercise voting authority over Client proxies Clients retain the responsibility for receiving and voting proxies for any and all securities maintained in such Client’s portfolio. Clients will receive proxies and other solicitations directly from the Custodian.
10. DELIVERY OF BROCHURE AND RELATIONSHIP SUMMARY.
You acknowledge that you have received a copy of Composer’s Form ADV Part 2A (“Disclosure Brochure”) and Part 3 (“Relationship Summary”), delivered electronically and available on the U.S. Securities and Exchange Commission’s Investment Adviser Public Disclosure webpage on www.adviserinfo.sec.gov, which contains certain disclosures concerning brokerage practices, risk factors and potential conflicts of interest, all of which may be amended from time to time subject to law. You may also obtain a copy of Composer’s Disclosure Brochure, and Relationship Summary, upon request by emailing email@example.com.
11. CONFIDENTIALITY, PRIVACY, AND TRUSTED CONTACT.
Except as required by law or requested by regulatory authorities, Composer agrees to maintain in strict confidence all of your nonpublic personal and financial information that you furnish to Composer, except for information that you explicitly agree to share publicly. You agree that you shall not use investment advice or other confidential information you receive from Composer for developing a service that competes with the Composer Website or the services of Composer or any of its affiliates.
You consent to Composer recording and/or monitoring your telephone calls and electronic communications with representatives and associated persons of Composer without further notice. You expressly authorize Composer representatives or associated persons to contact you for purposes of evaluating the offering of the advisory services, the platform, and other products and services by calling, writing, or emailing at the telephone number(s), mailing address, and/or email address(es) you provide in connection with your Investment Account, including any additional or updated telephone numbers, mailing addresses, or email addresses. The authorization in the preceding sentence will remain in effect unless and until you specifically revoke it by notifying Composer or associated persons with whom you are in contact.
Furthermore, you may appoint an adult at least 18 years of age as a Trusted Contact Person whom we may contact about your Investment Account. We may disclose information about your Investment Account to your Trusted Contact Person in order to address possible wrongful or unauthorized use of your assets or to confirm the specifics of your contact information, health status, or the identity of any legal guardian, executor, trustee, or holder of a power of attorney.
12. ACKNOWLEDGEMENTS, REPRESENTATIONS AND COVENANTS.
You understand, agree and confirm to Composer that:
You represent and warrant that no term of this Agreement conflicts with or violates any duty you have under any law, regulation, or agreement.
The platform is appropriate. You have evaluated the platform and determined that it is appropriate for you, taking into account all relevant factors, including, your need for investment advice, your risk tolerance and investment experience, your particular financial needs and circumstances, and the fees charged for the account versus other types of investment accounts. You understand that, depending on the circumstances, the brokerage and execution services offered through this platform may be available for less money (but without the ongoing advisory services) through a commission-based brokerage account. You acknowledge that your Investment Account is not intended solely as a cash management vehicle.
Investment Risks. You are aware of and willing to assume the risks involved with investing your Investment Account. You understand that Composer and its affiliates do not guarantee the future performance of your assets in the Investment Account or any specific level of performance, the success of any investment recommendation or the success of our overall management of your Investment Account. Our investment recommendations are subject to various market, currency, economic, political and business risks. Investment decisions will not always result in profitable outcomes. Investment performance of any kind can never be predicted or guaranteed, and Composer does not guarantee that you will avoid financial loss. Composer does not make any guarantee that the investment objectives, expectations or targets described on the Composer Website will be achieved, including without limitation any risk control, risk management, or return objectives, expectations, or targets. Neither Composer nor any of its affiliates guarantees the success of any given investment decision or strategy that Composer may recommend or undertake, or the success of the overall management of the Investment Account through the platform. You may experience losses, including potentially a complete loss of your investment. You acknowledge that you have read the additional risk disclosures in Composer’s Disclosure Brochure.
U.S. Resident. You acknowledge that the platform is intended for natural persons who are citizens or other lawful residents of the U.S. and who are located in the U.S., and that neither Composer nor its affiliates intend to offer the platform, any securities, or any other products or services outside of the U.S.. You acknowledge that Composer and its affiliates do not offer the platform to non-resident aliens subject to tax withholding. Neither Composer nor its affiliates represent or warrant that any aspect of the platform, including information available from the Composer Website and information provided through the Composer Website, complies with any law or regulation of any jurisdiction outside of the U.S. You represent and warrant that you are a lawful resident of and located in the U.S., you have a valid U.S. residential mailing address, and that you have been lawfully issued by the government of the U.S. the social security number or tax identification number you provided to Composer when applying for your Investment Account using the account opening functionality through the Composer Website.
Limitation of Liability. You understand that, except as otherwise provided by law, neither we nor any (a) of our officers, partners or directors (or persons performing similar functions); (b) of our employees and representatives; or (c) persons directly or indirectly controlling us or controlled by us (as defined in the Advisers Act) (together, our “Affiliates”); or (e) any of our agents, including any service providers, (together with our Affiliates, the “Indemnified Persons”) will be liable for (i) any obligations, costs, fees, losses, liabilities, claims, judgments, actions, damages and expenses, including but not limited to attorneys’ fees, expenses and court costs (“Losses”) paid, suffered, incurred or arising from the Services or any investment decision made or other action taken or not taken in good faith by us with the degree of care, skill, prudence and diligence that a person acting in a fiduciary capacity would use under the circumstances; (ii) any Losses arising from adhering to your written or oral instructions; or (iii) any act or failure to act by Alpaca or any other third party; or (iv) any loss arising from any services provided to Client prior to the execution of this Agreement by any person or entity who at the time of the provision of such services was not an Indemnified Person; (v) the loss or failure or delay in performance of any obligation under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond Composer’s reasonable control, including acts of God, earthquakes, fires, floods, wars, terrorism, civil or military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunctions of utility, telecommunications, computer software or hardware, transportation or communication service, accidents, labor disputes, acts of civil or military authority, governmental, regulatory authority or securities exchanges actions, the inability to obtain labor, material, equipment, or transportation and a custodian refusing to act on Composer’s instructions; or (vi) any loss that Client may suffer for any reason whatsoever that is outside the Investment Account or the relationship between the parties; or (vii) any failures arising out of the use of the Composer Website. If the assets we are managing in your Investment Account under this Agreement are only a portion of your total assets, we will not be responsible for (a) any of your assets that we are not managing under this Agreement; or (b) diversifying all of your assets. For the avoidance of doubt, this Agreement only pertains to Composer’s discretionary advisory services as previously described. In addition, Composer shall have no liability for Client’s failure to promptly inform Composer of changes in Client’s financial and/or economic situation, Client’s investment objectives, or any restrictions Client wishes to impose that may affect the management of the assets in the Investment Account, as applicable. Nothing in this Agreement will waive or limit any rights that you may have under federal and state securities laws for the advisory services you receive under this Agreement.
Indemnification. You will defend, indemnify and hold all of the Indemnified Persons harmless from any and all Losses sustained by any Indemnified Party arising out of or in connection with (i) any breach of this agreement by Client, including your failure to provide true, accurate, complete, and current information or to update information or any misrepresentations or omissions made by you in this Agreement; (ii)any use of or access to the Composer Website and the advisory services provided hereunder, (iii) any direction, instruction or communication you provide to us or any other Indemnified Party in connection this Agreement, your Investment Account (including deposits, withdrawals, or transfers of assets to or from such account) or the assets in your Investment Account or (iv) any claim brought against any Indemnified Person relating to services provided to Client prior to the execution of this Agreement by any person who at the time of the provision of such services was not an Indemnified Person. This indemnification shall survive the termination of this Agreement, the Client’s use of the Composer Website and the Investment Account.
Without limiting the generality of the foregoing, except where prohibited by applicable law, Composer and its Indemnified Persons will not be liable for any indirect, special, incidental, non-compensatory, punitive or consequential damages or other losses (regardless of whether such damages or other losses were reasonably foreseeable).
If Composer or any of its affiliates is served with levies, attachments, garnishments, summons, subpoenas, court orders, or other legal process which name you as debtor or otherwise, Composer or such affiliate shall be entitled to rely upon the representations, warranties, and statements made in such legal process. You hereby agree that Composer or any affiliate may respond to any such legal process in its own discretion without regard to jurisdiction or forward such legal process to the Custodian or such other party as may be appropriate. You hereby agree to hold harmless and indemnify Composer and its affiliates for any losses, expenses, and costs, including attorneys’ fees, incurred as a result of responding to such legal process or forwarding such legal process to the appropriate entity.
If Composer or any affiliate receives written notice from a personal representative, executor or administrator purporting to represent your estate, Composer or such affiliate shall be entitled to rely on all figures supplied and representations made in such written notice if Composer or such affiliate is provided with letters of appointment bearing a duly recognized court seal without regard to jurisdiction.
Non-Exclusivity. You acknowledge that Composer renders investment advice to other clients. We and our Affiliates may take the same, similar, or different positions in specific investments for our other clients’ and our own accounts, as we do for you. We have no obligation to purchase or sell, or to recommend for purchase or sale, any security which we or our Affiliates may purchase or sell for our other clients’ and our own accounts. The Client agrees that Composer may give advice and take action with respect to any of its other clients, which may differ from the advice given or the timing or nature of action taken with respect to the Client's Investment Account.
Fiduciary Status. Composer does not act as a “fiduciary” within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) with respect to either you or, if the Investment Account relates to the assets of an IRA, your IRA.
13. TERM AND TERMINATION.
This Agreement becomes effective as of the date it is accepted by Composer, as evidenced in accordance with Composer’s procedures and/or practices regarding account opening. The date your Investment Account is opened may or may not be the same effective date of this Agreement.
You agree that Composer and/or any of its affiliates or contractors may suspend the provision of services to you or delay, limit, restrict, or refuse any transaction for you at any time for any length of time without prior notice to you if Composer believes in good faith that such suspension or delay is necessary or appropriate: (i) to ensure compliance with, or to avoid, violating any law or regulation applicable to Composer or its affiliates or a transaction relating to the platform; (ii) to comply with a request or guidance from a regulatory or law enforcement authority with jurisdiction over Composer or its affiliates or a transaction relating to the platform; (iii) to avoid a loss to Composer or its affiliates (including if your payment of fees is 60 days or more overdue, except with respect to charges then under reasonable and good faith dispute); (iv) to remediate or otherwise address problems with technology; (v) due to interruptions in the access to or operation of any technology that Composer or its affiliates directly or indirectly uses in connection with the platform; (vi) to prevent a breach or violation of any term, condition, or other provision of this Agreement; or (vii) to obtain from you any additional information that Composer in its reasonable discretion deems necessary for advisory services to be provided to you pursuant to this Agreement. Notwithstanding anything to the contrary in this Agreement, Composer reserves the right, at any time and without notice, to delay or manage the trading of Client orders if Composer determines it is appropriate and consistent with its obligations under this Agreement.
You may terminate this Agreement at any time and the termination will be effective upon receipt of notification of the termination. You understand that Composer may also elect to terminate your Investment Account at any time, for any reason or no reason, in its sole discretion, upon notice to you, by email, by mail or other means of notification via the Composer Website. To the extent that the advisory relationship is terminated, you understand that all features and privileges associated with the Investment Account will be canceled and ceased.
Termination of this Agreement will not affect (a) the validity of any action previously taken under this Agreement; (b) liabilities or obligations from transactions initiated before termination of this Agreement; or (c) your obligation to pay us fees that have already been earned under this Agreement. If you terminate this Agreement, you will promptly pay us any unpaid but earned Subscription Fee, as appropriate.
If either you or Composer terminate your Investment Account, then the termination of your Investment Account will occur as follows:
You will be deemed to have simultaneously terminated this Agreement and the Alpaca Customer Account Agreement, unless otherwise agreed to by Composer or the Custodian, as applicable;
The Custodian will, before closing your Investment Account, settle any purchases or sales pending when Composer sends or receives a request to close your Investment Account; and
Composer and/or the Custodian will, before closing your Investment Account, deduct any unpaid fees.
If either Composer or you request to your Investment Account, you hereby authorize Composer to instruct the Custodian to sell all shares in your Investment Account and any distributions generated by such shares following such request, and to send the cash, less any portion of the Subscription Fee or other fees due, to either your address of record or the Funding Account connected to your Investment Account established with Composer. Notwithstanding the foregoing, if you explicitly request that shares be transferred to another custodian or broker-dealer, Composer will instruct the Custodian to transfer, in accordance with your instructions and subject to such new custodian or broker-dealer’s policies and procedures with respect to fractional shares, the shares remaining after each of the following are paid for with the proceeds of a sale: (i) any withdrawals pending when the termination notice was received or sent by Composer; (ii) any unpaid fees or portion thereof due; (iii) the fees charged for processing the in-kind transfer to another custodian or broker-dealer; and (iv) any other fees due. You hereby acknowledge that, subject to the terms of the Alpaca Customer Account Agreement, you may be required to provide additional instructions to the Custodian in order to obtain your cash or transfer your shares in the event of the termination of your Investment Account.
A Client’s death, disability or incompetence will not automatically terminate or change the terms of this Agreement. However, your executor, guardian, attorney-in-fact or other authorized representative may terminate this Agreement by giving us proper written notice. We will not be responsible for any transfers, payments or other transactions in the Investment Account made at the direction of a former account holder or incapacitated account holder before we actually received and had a reasonable amount of time to act on such official written notice. Following receipt of an official written notice, we may require additional documents and reserve the right to retain the assets in and/or restrict transactions in the Investment Account in our sole discretion. Any former account holder and the estate of any deceased or incapacitated account holder will remain jointly and severally liable for any losses in the Investment Account arising out of or relating to transactions initiated before we actually received and had a reasonable amount of time to act on such official written notice.
14. LEGAL CAPACITY.
If this Agreement is established by the undersigned Client, or the Client’s authorized representative in a fiduciary capacity, the Client hereby certifies that he/she is legally empowered to enter into or perform this Agreement in such a capacity. The Client represents that he or she is over 18 years of age and no person shall use or attempt to use the Services unless he or she is over 18.
15. ENTIRE AGREEMENT AND AMENDMENTS.
You acknowledge and agree that this Agreement, as it may be amended from time to time in accordance with its terms, constitutes the entire and final understanding with respect to the subject matter of the Agreement. You acknowledge and agree that this Agreement, and the terms and conditions contained herein, supersedes any prior Agreement or similar contracts you entered into with Composer.
You agree to check the Composer Website for new versions of this Agreement. You agree that, by keeping your Investment Account or using the Services provided through the platform without objecting after Composer posts a new version of the Agreement, you will agree to and accept all terms and conditions of this Agreement as so amended.
You acknowledge that Composer will generally not be required to obtain your consent for any amendments to the Agreement or changes to the platform. Any amendment or modification to this Agreement will be effective on the date determined in accordance with the terms and conditions discussed herein.
16. NOTICES AND COMMUNICATIONS.
Our opening and maintaining your Investment Account is conditioned on your agreement to receive all notices, documents, and other information related to your account and investments electronically. You agree that when we send these email notices to you that they constitute delivery to you of the information or documents referred to in the email you provided, even if you do not actually access the information or documents on our Composer Website.
This consent will be effective immediately and will remain in effect unless revoked by you, as described in Section 23 below.
You agree to keep a working email address and will update your account information immediately if your email address or other contact information changes. If you do not maintain an email address that is working and accessible to us, and we believe we are required to provide you with paper notice or documents of particular matters or actions, and we do so, we may charge you the cost of such delivery. You acknowledge that you may incur costs (such as online service provider charges or printing costs) associated with the electronic delivery of information to you. To view PDF files, you will need to download the Adobe Acrobat Reader, which is provided for free from Adobe.
Any notice given to you in connection with this Agreement will be deemed delivered if personally delivered or sent by (i) U.S. mail, certified or registered, or overnight courier, postage prepaid with return receipt request, and addressed, if to you, at the address indicated in your Investment Account information, or (ii) electronically to the address to which your Investment Account communications are sent or (iii) posted to the Composer Website or Composer Website.
18. ASSIGNMENT OF AGREEMENT.
You may not assign your rights or obligations under this Agreement without the prior express written consent of Composer. Composer shall not assign (within the meaning of the Advisers Act) its rights or obligations under this Agreement without your consent, provided however that you will be deemed to have consented to an assignment if you do not object to such assignment within 30 calendar days of being notified through the Composer Website or by email of any intent of Composer to assign such rights or obligations. You further agree that any reorganization, restructuring, or other transaction affecting the ownership of Composer will not be deemed to be an assignment (within the meaning of the Advisers Act) of this Agreement, so long as such reorganization, restructuring, or transaction does not result in a change of actual control or management.
It is understood by the Client that Composer is licensed/registered with all of the appropriate regulatory jurisdictions that Composer believes it has a duty to be licensed/registered.
Headings in this Agreement are descriptive and for convenience only and shall not be construed as altering the scope of the rights and obligations created by this Agreement. Defined terms shall have their assigned meanings wherever used in this Agreement or any of the agreements governing your participation in the platform, regardless of whether defined in this Agreement or used in the singular or the plural. Unless expressly provided otherwise, the word “including” shall be construed as introducing examples of a category without limiting such category and shall, therefore, be construed as if the word “including” were replaced with the phrase “including but not limited to” or “including without limitation.”
No course of dealing between you and Composer, nor any delay by Composer in exercising any rights or remedies hereunder, shall be deemed to be a waiver of any such rights or remedies. Any waiver of such rights or remedies shall not be construed as a waiver of any other right or remedy. Any right or remedy may be exercised as often as Composer may determine in its sole discretion, and a waiver granted on one occasion shall not be construed as applying to any other occasion.
If any provision of this Agreement is deemed to be invalid or unenforceable or is prohibited by the laws of the state or jurisdiction where it is to be performed, this Agreement will be considered divisible as to such provision and such provision will be inoperative in such state or jurisdiction. The remaining provisions of this Agreement will be valid and binding and of full force and effect as though such provision was not included. Without limiting the foregoing, if any portion of the Arbitration Agreement set forth below is invalidated, such invalidation shall not invalidate the remaining portions of the Arbitration Agreement.
20. GOVERNING LAW.
Except to the extent that it is preempted by federal law, the law of the State of Delaware (without regard for conflicts of law principles) will govern the construction, validity, and administration of this Agreement. However, nothing in this Agreement will be construed contrary to the Advisers Act. This Agreement will be governed by and construed in accordance with the laws of Delaware. Any action, suit or proceeding arising out of, under or in connection with this Agreement seeking an injunction or not otherwise submitted to arbitration pursuant to this Agreement will be brought and determined in the appropriate federal or state court in the state in which Composer’s principal office is located at the time and in no other forum. The parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and agree to take any and all action necessary to submit to the jurisdiction of such courts in any such suit, action or proceeding arising out of or relating to this Agreement. No failure by us to exercise any right, power, or privilege will operate as a waiver thereof. No waiver of any breach of this Agreement by you will be deemed to be a waiver of any subsequent breach.
21. ARBITRATION AGREEMENT.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION. BY ENTERING INTO THIS 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 EXCEPT IN VERY LIMITED CIRCUMSTANCES;
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; AND
THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS AGREEMENT.
THIS ARBITRATION PROVISION SHOULD BE READ IN CONJUNCTION WITH THE DISCLOSURES IN THIS AGREEMENT. ANY AND ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN COMPOSER AND THE CLIENT 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 OTHER AGREEMENTS RELATING TO YOUR PARTICIPATION IN THE PROGRAM, (b) THE RELATIONSHIP OF THE PARTIES HERETO, OR (c) ANY CONTROVERSY ARISING OUT OF COMPOSER'S BUSINESS OR THE CLIENT'S INVESTMENT ACCOUNT (COLLECTIVELY, "CLAIMS"), SHALL BE CONDUCTED SOLELY BY ARBITRATION PURSUANT TO THE RULES THEN IN EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION.
ARBITRATION MUST BE COMMENCED BY SERVICE OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE UPON THE OTHER PARTY. 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. ANY SUCH ARBITRATION SHALL BE HELD [DISCUSS].
THE PARTIES AGREE THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION BASIS, AND THE CLIENT EXPRESSLY WAIVES ANY RIGHT TO BRING A CLASS ACTION LAWSUIT OR ARBITRATION AGAINST COMPOSER OR ITS REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS, OR CONTROL PERSONS WITH RESPECT TO ANY CLAIMS.
Notwithstanding the foregoing or anything to the contrary in this Agreement, in no way shall this Agreement constitute a waiver or limitation of rights that the Client may have under federal or state securities laws to pursue a remedy by other means if and to the extent such laws guaranty such right to the Client and do not permit the waiver thereof.
22. ELECTRONIC DELIVERY OF DOCUMENTS.
The platform is an electronically based service. By accepting this Agreement when you click “I Agree,” we are obtaining your informed consent to electronic delivery of all notices and communications relating to your Investment Account to an e-mail address that you provided. This includes all notices, disclosures, regulatory communications (including privacy notices) and other information, documents, data and records regarding your Investment Account (“Account Communications”).
You may revoke your consent to electronic delivery of Account Communications by providing notice in accordance with Section 16 of this Agreement, and such revocation will be effective upon successful completion of its processing by Composer. You understand that if you revoke or restrict your consent to electronic delivery of Account Communications or request paper delivery, Composer, at its discretion, may (i) terminate this agreement and/or close your Investment Account or (ii) charge you for the cost of the delivery of Account Communications that would otherwise be delivered to you electronically. Neither your revocation of consent to electronic delivery, your request for paper delivery, nor Composer’s delivery of paper copies of Account Communications will affect the legal effectiveness or validity of any electronic communication provided while your consent was in effect. All e-mail notifications of Account Communications will be sent to your e-mail address of record. You acknowledge that the Internet is not a secure network and that communications transmitted over the Internet may be accessed by unauthorized or unintended third parties. Due to security risks, you will not send any sensitive information, such as account numbers or passwords, in an unencrypted email.
E-mails on rare occasions may fail to transmit properly. You agree that, solely for your records, you can download and save or print the Account Communications you receive via electronic delivery.
This consent is effective upon the execution of this Agreement and will remain in effect unless and until you revoke your consent to electronic delivery. You understand that it may take up to three (3) business days to process a revocation of consent to electronic delivery, and you may receive electronic notifications in the interim.
Potential costs associated with electronic delivery of Account Communications include charges from Internet access providers and telephone companies, and such charges are borne solely by you. Composer does not charge additional online access fees for receiving electronic delivery of Account Communications. You understand that to receive electronic deliveries, you must have Internet access, a valid e-mail address with sufficient storage space, the ability to download documents as Composer may specify and to which you have access and a printer or other device to download and print or save any information you may wish to retain.
You acknowledge that you have, and will continue to have and maintain, Internet access and a valid e-mail address with characteristics as described in this paragraph, and you are able to receive electronic deliveries as set forth herein. Composer will notify you of any changes in the hardware and software requirements needed to access electronic records covered by this consent.
You hereby agree that you have carefully read the above information regarding informed consent and fully understand the implications thereof. You hereby agree to the conditions outlined above concerning electronic delivery of Account Communications. If your e-mail address changes, you agree to notify Composer of your new e-mail address immediately in writing in accordance with the notice provisions of this Agreement.
23. ELECTRONIC SIGNATURES.
Your intentional action in electronically signing this Agreement is valid evidence of your consent to be legally bound by this Agreement. The use of an electronic version of any documents fully satisfies any requirement that they be provided to you in writing.
You are solely responsible for reviewing and understanding all of the terms and conditions of these documents. You accept as reasonable and proper notice, for the purpose of any and all laws, rules and regulations, notice by electronic means, including, the posting of modifications to this Agreement on the Composer Website. The electronically stored copy of this Agreement is considered to be the true, complete, valid, authentic and enforceable record of the Agreement, admissible in judicial or administrative proceedings to the same extent as if the documents and records were originally generated and maintained in printed form.
You agree to not contest the admissibility or enforceability of Composer’s electronically stored copy of the Agreement in any proceeding arising out of the terms and conditions of the Agreement. If more than one individual has electronically signed this Agreement, your obligations under this Agreement will be joint and several.
By clicking the “I Agree” button, you acknowledge that you (on your own behalf and any joint account holder's behalf):
i.agree to arbitrate any controversies that may arise under this Agreement;
ii.have read, understand and agree with all of the terms and conditions set forth in this Agreement;
iv.understand that clicking “I Agree” is the legal equivalent of manually signing this Agreement, and that you will be legally bound by its terms and conditions.