This Customer Agreement (this "Agreement") is made and entered into by and between Rosland Capital LLC, a Delaware limited liability company with a principal place of business located at 11766 Wilshire Boulevard Suite 1200 Los Angeles, CA 90025 ("Rosland"), and the person(s) or entity identified on the signature page hereof ("Customer") for the purchase, sale and delivery of precious metals, numismatic coins and other products offered by Rosland (collectively, the "Products"). The terms and conditions of this Agreement shall apply to all transactions between Customer and Rosland.
1. Purchases and Payments.
1.1 Customer may place an order (each, a "Purchase Order") with a Rosland customer service representative (each, a "Rosland Representative") by telephone for the purchase, sale and delivery of Products which shall have the same effect as if the Purchase Order was made in writing. Customer's Purchase Order will be confirmed during a recorded confirmation with a Rosland Representative to ensure the details of the Purchase Order are correct and will include the price, quantity, method of payment and delivery and other material terms of the Purchase Order. Purchase Orders for bullion cannot be accepted prior to Rosland’s receipt of good funds, and after receipt of such funds the final terms of the Purchase Order will be confirmed during a recorded confirmation with a Rosland Representative.
1.2 Rosland will send Customer a written confirmation of each Purchase Order (the "Confirmation") at the address provided by Customer to Rosland. The amount due under the Purchase Order (the "Purchase Price") shall be due and payable in full to Rosland within ten (10) business days of the recorded Confirmation, in the case of a transaction involving proof, semi-numismatic or numismatic coins, and on or before the date of the recorded Confirmation, in the case of a transaction involving bullion (in either case, the "Payment Period"). Failure to pay the Purchase Price within the Payment Period shall constitute a default by Customer. Upon such default, Rosland will be relieved of all its obligations under the Purchase Order and may recover from Customer the difference between the Purchase Price agreed to by Customer for the Products and Rosland's actual resale price for the Products at the time of default, in addition to a four percent (4%) cancellation fee. Notwithstanding the foregoing provisions of 1.1 and 1.2, purchases made on-line at www.roslandcapital.com shall be subject to the payment provisions set forth on-line by Rosland from time to time.
1.3 Customer agrees to pay the Purchase Price by personal check, credit card or bank wire (except that any payments for bullion shall be made by check or bank wire only and payments on-line shall be made by check only). The Purchase Price specified in a Purchase Order shall include, without limitation, all shipping, handling, storage, delivery, taxes, assessments and other fees imposed on transactions involving the Products. All amounts stated in a Purchase Order are in U.S. Dollars and all payments made by Customer to Rosland under a Purchase Order shall be made in the U.S. and in U.S. Dollars.
2. Delivery. Rosland shall deliver the Products to Customer, or Customer’s appointed agent or designee, in accordance with the terms of the applicable Purchase Order, within ten (10) business days (or such lesser period as required by law) of Rosland’s actual receipt of the full Purchase Price from Customer. Title to the Products purchased by Customer and risk of loss thereto shall pass to Customer upon Customer’s, or Customer’s appointed agent's or designee's, actual receipt of the Products. Customer shall be responsible for all shipping and handling charges incurred in connection with the delivery of the Products and Customer acknowledges that shipping and handling charges will vary depending on the weight, value, destination and method of shipment of the Products.
3. Buy-Back Policy and Customer Service. If in the future you decide that you would like to sell any precious metal or numismatic coin products purchased from Rosland, as a service to our customers, Rosland will provide you the opportunity to sell such products back to us at the current market value determined by Rosland for such products on the day the sale to us is completed. You are, of course, free to sell to others, but we believe that you may receive a higher net price by selling to Rosland because we are familiar with the products we have sold you, and do not charge any additional fees or commissions when making such purchases. Due to market conditions and other factors, you may receive less than what you originally paid.
Our buy-back policy is a voluntary service to our customers and is subject to withdrawal or change without notice. We may also purchase products not originally sold by Rosland; however, such purchases are subject to additional fees and/or commissions at current market rates.
Rosland maintains a dedicated customer service department that handles all customer services, including liquidation requests, refund requests and complaints. Rosland’s Chief Compliance Officer can be reached by phone at (800) 967-5151 or by email at email@example.com.
4. Refunds and Returns. Rosland provides Customer the right to receive a full refund of the Purchase Price for the return of undamaged and unused Products; provided, however, that Rosland receives written notice of Customer's intention to return the Products within seven (7) days after the date that Customer receives the Products. Customer's "receipt" of the Products is deemed to occur at the earliest of: (a) the date that Customer receives actual possession of the Products or (b) the date that Customer receives written confirmation from Rosland that the Products have been deposited on Customer's behalf in an independent depository. Rosland shall, upon written notice of cancellation and receipt of the Products in the same condition as delivered, issue a full refund of the Purchase Price to Customer within thirty (30) days of the date of Rosland's receipt of notice of cancellation from Customer.
5. Storage. At Customer's request, Rosland will store the Products with independent depositories selected by Rosland. Rosland may store the Products on a non-segregated, bulk basis. Customer acknowledges that absent an express written agreement with Rosland to the contrary, Customer is only entitled to receive Products of the same quantity, grade and type specified in the applicable Purchase Order and not any specific precious metal, numismatic coin or other product offered by Rosland. Rosland shall use commercially reasonable efforts to store the Products in a way that is free from the claims of its creditors, the depositories (except as to storage charges) and the depositories' creditors. Rosland shall, or shall cause the depositories to, insure Customer's Products against physical loss, damage or disappearance. Notwithstanding the foregoing, Rosland’s total liability to Customer for any physical loss, damage or disappearance of Products held in storage shall be limited to Rosland's or its depositories' available insurance and under no circumstances shall the total liability to Customer for any physical loss, damage or disappearance exceed the replacement value of the Products. Customer shall be responsible for all storage fees, which shall be identified in detail in the appropriate Purchase Order, and Rosland shall be entitled to increase or decrease any storage fees upon thirty (30) days' written notice to Customer. All storage fees are non-refundable. Rosland will ship stored Products to any location specified by Customer within thirty (30) days of Customer's request for delivery and payment of all shipping, handling, storage, delivery, taxes, assessments and other fees. Customer will not grant or permit to exist any lien, security interest or encumbrance of any kind by a third party on Products stored by Rosland.
6. Pricing. The prices quoted by Rosland for the Products are established by Rosland upon its analysis of each commodity and may change many times during the day. The prices quoted by Rosland for the Products are not tied to prices quoted by any other organization and there are no established daily limits on the amount those prices may change. Rosland reserves the right to increase or decrease its prices at its sole discretion at any time. Customer is encouraged to compare Rosland’s prices with those offered by other dealers.
7. Spread. The difference between the Purchase Price Customer pays for Products under a Purchase Order and the price that Rosland actually pays for the Products purchased by Customer under such Purchase Order is known as the "spread" and it is stated as a percentage of the Purchase Price paid by the Customer. Spreads charged to Customer under a particular transaction may differ significantly from spreads charged to other customers in similar transactions or spreads charged to Customer in other transactions. The spread on Rosland's semi-numismatic and numismatic coins typically ranges between 17% and 33%. The spread on Rosland's bullion typically ranges between 4% and 21%. The spread on Rosland's IRA (as defined below) transactions typically ranges between 17% and 25%. The foregoing spreads are approximations and the spreads at any time and for any given transaction may be significantly different.
8. Classifications. Rosland's classification of a particular Product as bullion, numismatic, or semi-numismatic expresses Rosland's opinion and other precious metal dealers or investors may classify the same Product differently. The classification of a particular Product depends on a number of objective and subjective factors and any classification may change over time. Rosland's spread and prices are based on Rosland's classification determinations. Bullion may be in bar or coin form, and its value primarily depends on its precious metal content. Its value fluctuates with the “spot price” of the precious metal, which is its current market price. Numismatic coins are coins whose value primarily depends on factors such as demand, scarcity, dates, condition and grades, and less so on precious metal content, which may be only 90% pure. Semi-numismatic coins are coins that have some bullion value and thus their value may fluctuate with the spot price of the precious metal they contain, as well as other factors such as supply and demand. Precious metals that have lower precious metal content, such as numismatics, will have a lower “melt value”, which is the value of a coin or bar determined by multiplying its precious metal content by its spot price. For example, if the spot price of gold is $1,000 per ounce, a coin containing one ounce of gold has a melt value of $1,000.
9. Taxes. Tax consequences of transactions with Rosland are the sole responsibility of Customer. Customer shall pay to Rosland any sales, use or other tax applicable to transactions involving the Products.
10. Security. Customer hereby grants Rosland a lien and security interest in the Products in Rosland's possession or control that Customer orders pursuant to a Purchase Order as collateral for any amounts owed by Customer to Rosland under this Agreement, any Purchase Order or otherwise. Customer agrees to execute such additional documents as may be necessary to perfect or evidence this securely interest.
11. Electronic Recordation. Customer acknowledges and agrees that Rosland may choose, in its sole discretion, to monitor or record Customer's telephone conversations with any Rosland Representative. Unless otherwise specifically agreed to by Rosland in writing, Rosland does not consent to the recording of telephone conversations with any Rosland Representative by Customer or any third party. Customer acknowledges that Rosland will not record all telephone conversations and that Rosland does not guarantee that any recordings of any particular telephone conversation will be retained or are capable of being retrieved.
12. Customer Representations. Customer hereby represents to Rosland that (i) Customer is of legal age and capacity and has the requisite powers, authority, and rights necessary to enter into this Agreement and to perform its obligations under this Agreement; (ii) Customer is not a party, and will not become a party, to any agreement, obligation, or understanding that is inconsistent with this Agreement or might limit or impair Customer's performance of its obligations under this Agreement; (iii) Customer is an experienced investor who understands the risks and obligations involved under this Agreement; and (iv) Customer's transactions under this Agreement shall be for investment or other commercial purposes and not for any personal, family, household or other consumer purposes.
13.1 Customer acknowledges that Rosland is a dealer in precious metals, numismatic coins and other related products. Customer further acknowledges that Rosland is not an exchange or brokerage house and that neither Rosland nor any Rosland Representative acts as an agent or fiduciary for any of Rosland's Customers.
13.2 Customer acknowledges that investments in the Products involve substantial risks. Market prices are volatile and unpredictable and may be affected by a variety of factors, including, without limitation, general economic conditions, political events, monetary policies of various countries, and fluctuations in production and demand. It is impossible to forecast accurately how or to what degree the foregoing or other factors will affect market prices. What is suitable for one customer with a given financial means may not be suitable for other customers with the same financial means.
13.3 Customer acknowledges that investment in the Products is speculative, volatile and prices may rise and fall over time. Customer acknowledges that. profit can only be made if prices for the Products rise in an amount over the Purchase Price paid by Customer for the Products and that Customer may still incur a loss despite favorable price movements.
13.4 Customer acknowledges that Customer is financially and emotionally able to enter into transactions which are contemplated by this Agreement and is sensitive to and able to accept the risks and to meet the financial commitments being made under this Agreement.
13.5 Customer acknowledges that grades and descriptions of Products are opinions and not statements of fact, and are based on standards and interpretations that change over time. Rosland uses contemporary grading standards and interpretations to grade its Products or relies upon the opinions of third party grading services. Customer acknowledges that Rosland does not guarantee that its Products will achieve the same grades from any third party grading service in the future.
13.6 Customer acknowledges that Customer is responsible for all purchases made on Customer's account. If Customer believes that a Purchase Order has been entered into for Customer's account without Customer's authorization, Customer shall immediately notify Rosland's Compliance Department at: firstname.lastname@example.org. Similarly, if Customer believes that any Rosland Representative has made a verbal or written representation that is inconsistent with the terms or risks set forth herein or is unprofessional or offensive in nature, Customer will notify Rosland's Compliance Department immediately. Customer further acknowledges that if Customer falls to make the required notification within ten (10) business days following the date on which the event first became known to Customer, Customer waives all rights to contest such matter.
13.7 Rosland Representatives may from time to time discuss the general direction of various financial markets. Customer acknowledges that Rosland Representatives cannot guarantee any market movement. Customer further acknowledges that Rosland Representatives are not licensed as investment advisors and are not making any specific recommendations concerning any forms of investment. Rosland and the Rosland Representatives are not agents for Customer, have different financial interests and incentives from Customer and owe no fiduciary duty to Customer. Rosland Representatives are commissioned salespersons whose commissions are greatest on numismatic and semi-numismatic items and least on bullion. Customer acknowledges that Rosland believes coins and bullion are appropriate for 5% to 20% of a portfolio, although certain individuals or organizations might recommend a different percentage. Customer agrees to independently determine what percentage is appropriate for Customer based upon Customer’s individual circumstance.
13.8 Customer acknowledges that Customer has conducted and will conduct Customer's own research and analysis regarding the Products that Customer may purchase from Rosland and Customer will not rely upon any statements made by a Rosland Representative concerning the future value of the Products that Customer may purchase from Rosland.
13.9 Customer acknowledges that Rosland’s policy with respect to the 1930’s gold recall by the Government is as follows: “In 1933, the U.S. Government, by Executive Order, prohibited the private ownership of certain quantities of gold bars and coins. There were several exceptions to this ban, including allowing people to own “gold coins having a recognized special value to collectors of rare and unusual coins.” At the time the United States was on the gold standard. Since 1971 the United States has not been on the gold standard. The Executive Order prohibiting private ownership was repealed in 1974. Currently, there are no restrictions on gold ownership, and the ability of the U.S. Government to recall gold is limited to times of war and requires action by the President or Congress. No one can say with certainty if or how the U.S. Government might prohibit ownership of gold in the future, or whether any particular gold product might be exempt from any future prohibitions.”
13.10 Customer acknowledges that Rosland’s policy with respect to the reportability of precious metals is as follows: “Many of our customers are concerned about personal privacy or disclosing that they own precious metals. Accordingly, they often choose to purchase precious metals that do not require disclosure of personal information such as name, address and social security number when they sell such precious metals. Currently, certain bullion, semi-numismatic and numismatic coins do not require disclosure of such personal information when a customer sells them.”
13.11 Customer acknowledges that Customer has read Rosland’s brochure, which provides additional information about pricing as well as information about the risks of buying and selling precious metals and rare coins. This brochure is updated periodically and it is Customer's responsibility to remain up to date by requesting a copy of the most recent version at Rosland's website, www.roslandcapital.com.
13.12 Customer acknowledges that Rosland may provide information about companies which provide trustee and custodian services for Individual Retirement Accounts ("IRA) as a convenience to its customers. Customer further acknowledges that Rosland is independent from and not affiliated with any of the companies which may provide those services. It is Customer's responsibility to independently select the IRA service company suitable for Customer. Rosland shall have no liability or responsibility for any loss or damage resulting from Customer's dealings with any IRA service company.
14. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
14.1 DISCLAIMER OF WARRANTIES. ROSLAND PROVIDES THE PRODUCTS ON AN "AS IS" BASIS. ROSLAND MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
14.2 EXCLUSION OF DAMAGES. IN NO EVENT WILL ROSLAND BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS', WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF, RELATING TO OR CONNECTED WITH THE PRODUCTS OR THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
14.3 LIMITATION OF LIABILITY. IN NO EVENT WILL ROSLAND'S AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT EXCEED THE AMOUNT THAT CUSTOMER PAID FOR THE PRODUCTS, LESS THE FAIR MARKET VALUE OF SUCH PRODUCTS.
15.1 Customer expressly authorizes Rosland to contact Customer at the telephone numbers provided in this Agreement regardless of whether these numbers are listed on any state or federal Do Not Call list. If Customer requests that Rosland no longer contact Customer, Rosland will promptly place Customer on Rosland's Do Not Call list.
15.2 In no event will Rosland be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused by fire, flood, earthquake, elements of nature or acts of God; wars, terrorist acts, site-specific terrorist threats, riots, civil disorders, rebellions or revolutions; strikes, lockouts or labor disputes; governmental actions, suspensions of commodity exchanges, or the failure or delay of Rosland's suppliers; or any other similar cause beyond the reasonable control of Rosland.
15.3 Customer may not assign, transfer, or delegate this Agreement or any of its rights or obligations under this Agreement without Rosland's written consent. Rosland may freely assign, transfer, or delegate this Agreement or any of its rights or obligations under this Agreement without notice to Customer.
15.4 All communications shall be sent to Rosland at 11766 Wilshire Boulevard Suite 1200 Los Angeles, CA 90025 and to Customer at the address set forth above or such other address subsequently provided to Rosland by Customer in writing. All communications given by Rosland to Customer by mail shall be effective forty-eight (48) hours after deposit in the U.S. mail, postage prepaid, or upon receipt, whichever is earlier; if hand delivered, when delivered to Customer's address; if telephonic, at the time of such phone conversation or facsimile transmission; or if by email, on the day of such transmission.
15.5 Governing Law; Arbitration. The formation of this Agreement constitutes the making of this contract within Los Angeles County, California, regardless of the manner, timing or location of delivery of receipt of acceptance of this Agreement. The parties agree that Los Angeles County, California is the exclusive venue for filing any action and hearing concerning disputes arising from or relating to the Products or this Agreement. This Agreement shall be governed by the laws of the State of California excluding conflict of law principles. CUSTOMER AGREES TO ARBITRATE ALL CONTROVERSIES BETWEEN CUSTOMER AND ROSLAND (INCLUDING ANY OF ROSLAND'S CURRENT OR FORMER OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES OR AGENTS) ARISING OUT OF OR RELATING IN ANY WAY TO THE PRODUCTS OR THIS AGREEMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE. THE ARBITRATION PROCEEDINGS SHALL BE KEPT IN STRICTEST CONFIDENCE. THE PARTIES AGREE THAT THE EXCLUSIVE VENUE FOR ARBITRATION PROCEEDINGS, INCLUDING ANY ARBITRATION HEARING, WILL BE SANTA MONICA, CALIFORNIA. THE PARTIES FURTHER AGREE TO THE PERSONAL JURISDICTION OF THE SUPERIOR COURT, LOS ANGELES COUNTY, STATE OF CALIFORNIA, TO ENFORCE THIS SECTION. EACH PARTY AGREES THAT IT WILL SHARE EQUALLY IN THE BASIC ARBITRATION COSTS, INCLUDING ADMINISTRATION FEES AND THE FEES OF THE ARBITRATOR(S). EACH PARTY SHALL BE RESPONSIBLE FOR ITS OWN ATTORNEYS FEES.
15.6 Waiver of Jury Trial. BY ENTERING INTO THIS AGREEMENT, CUSTOMER HEREBY AGREES TO HAVE ALL CLAIMS, DISPUTES AND CONTROVERSIES ARISING OUT OF OR RELATING TO THE PRODUCTS OR THIS AGREEMENT DECIDED BY ARBITRATION AND IS WAIVING ANY RIGHT TO HAVE SUCH CLAIMS, DISPUTES OR CONTROVERSIES DETERMINED IN A COURT OF LAW BY A JUDGE OR BY A JURY. BY ENTERING INTO THIS AGREEMENT, CUSTOMER IS SIMILARLY WAIVING ITS RIGHTS TO APPEAL, UNLESS EXPRESSLY PROVIDED FOR HEREIN.
15.7 Waiver of Class Action. BY ENTERING INTO THIS AGREEMENT, CUSTOMER HEREBY IRREVOCABLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE PRODUCTS OR THIS AGREEMENT MUST BE ASSERTED INDIVIDUALLY.
15.8 One Year Limit to Bring Claims. CUSTOMER ACKNOWLEDGES AND AGREES THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION CUSTOMER MAY HAVE ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE PRODUCTS OR THIS AGREEMENT, MUST BE FILED WITHIN ONE CALENDAR YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OR FOREVER BE BARRED. CUSTOMER FURTHER ACKNOWLEDGES THAT, BUT FOR THIS WAIVER, CUSTOMER MIGHT HAVE A LONGER TIME PERIOD TO INITIATE A CLAIM UNDER STATE OR FEDERAL LAW.
15.9 Limitation on Damages. CUSTOMER ACKNOWLEDGES THAT THE DAMAGES AVAILABLE TO ANY PARTY BRINGING AN ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO ANY ACTUAL CONTRACT DAMAGES AND TORT DAMAGES INCURRED BY THE PARTY AND PROXIMATELY CAUSED BY AND RESULTING FROM THE OTHER PARTY'S ALLEGED BREACH, AND IN NO EVENT WILL ROSLAND’S AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT EXCEED THE AMOUNT THAT CUSTOMER PAID FOR THE PRODUCTS, LESS THE FAIR MARKET VALUE OF SUCH PRODUCTS. THIS SECTION STATES THE EXCLUSIVE DAMAGE REMEDIES AVAILABLE TO CUSTOMER.
15.10 The terms and provisions in this Agreement are severable. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, or unenforceable, then that provision will be enforced to the maximum extent permissible and the remaining terms and provisions of this Agreement will continue in full force and effect.
15.11 No failure or delay by Rosland in exercising any of its rights, powers, or remedies under this Agreement will operate as a waiver of that or any other right, power, or remedy. No waiver or modification of any term of this Agreement will be effective unless in writing and signed by the party against whom such waiver or modification is sought to be enforced.
15.12 This Agreement may be executed in one or more counterparts, and delivered by facsimile transmission, each copy of which will be deemed an original and all of which, when taken together, will constitute one and the same instrument.
15.13 This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings, and agreements between the parties.