TEXAS PRECIOUS METALS DEPOSITORY
ACCOUNT HOLDER AGREEMENT
This Account Holder Agreement (the “Agreement”) is made and entered into by and between the Texas Precious Metals Depository (“TPMD”) and the undersigned customer (the “Customer”). The Texas Precious Metals Depository is owned and operated by Texas Precious Metals, LLC. The terms and conditions contained herein govern the storage of the Customer’s precious metals at TPMD.
- Depository Account. TPMD agrees to create a Depository Account for Customer at TPMD’s facilities located in Shiner, Texas for the storage of Customer’s Precious Metals. TPMD shall cause all Precious Metals and items stored in Customer’s Depository Account to be specifically identified and physically segregated at all times from Precious Metals belonging to any other person or entity (including TPMD and other customers of TPMD). TPMD Account shall be identified by a unique account number generated by TPMD and used in all Depository records. TPMD will hold Customer’s personal information in confidence and will not use such information to mark or identify the Precious Metals held in TPMD Account.
- Deposits. Customer may make deposits into TPMD Account at any time, provided the account is in good standing and all payments and fees are current at the time of deposit. Customer must complete and submit appropriate documentation as requested by TPMD which shall accompany each deposit, identifying each item deposited by the type of metal, form and characteristics of each product, the weight, purity, and quantity of each product, as well as other information reasonably requested by TPMD. Upon receipt of the deposit, TPMD will confirm the Precious Metals deposited into the account by identifying and recording in Depository records the type of metal, form and characteristics of each product, the weight, purity, and quantity of each product, as well as the spot value of the Precious Metals as of the date of the deposit. TPMD will provide a record of the deposit identifying each item and its form, characteristics, and value (the “Deposit Statement”). The Deposit Statement shall be the official record of the Customer’s deposit. TPMD may not adjust the account unless the Customer notifies TPMD of a discrepancy within thirty (30) days of the date of the Deposit Statement that shows the deposit. If the Customer does not notify TPMD of the discrepancy within this notice period, the deposit will be considered final.
- Right to Refuse Deposits. TPMD retains the right to refuse a deposit, or part of a deposit, at any time and at its sole discretion. TPMD will not be liable to the Customer or any third party for refusing a deposit.
- Prohibited Items. Certain types of items may not be stored at TPMD. Excluded items include explosives, firearms, narcotics, items prohibited by law, perishables, and other types of items which TPMD may prohibit at its sole and complete discretion.
- Withdrawals. Generally, the Customer may withdraw items from TPMD Account at any time after items to be withdrawn have been received and accounted for through the deposit process. Withdrawals may be made in person during normal Depository business hours. Customer may also withdraw items and request TPMD or a depository agent ship the items to Customer or a third party. Customer must follow shipment policies and procedures and complete required documentation to complete a withdrawal via shipment. A Customer may also make a withdrawal by selling all or a part of the contents of TPMD Account to TPMD or a depository agent. Customer must follow all trading policies and procedures and complete any required documentation to complete a withdrawal via sale. TPMD will provide a record of the withdrawal identifying each item and its form, characteristics, and value (the “Withdrawal Statement”). The Withdrawal Statement shall be the official record of the Customer’s withdrawal. TPMD may not adjust the account unless the Customer notifies TPMD of a discrepancy within thirty (30) days of the date of the Withdrawal Statement that shows the withdrawal. If the Customer does not notify TPMD of the discrepancy within this notice period, the withdrawal record will be considered final.
- Storage Fees. Customer agrees to pay TPMD all storage and related fees in accordance with the then-current TPMD Fee Schedule, which may be amended from time to time at TPMD’s discretion and upon at least thirty (30) days’ prior notice to the Customer. A copy of the current TPMD Fee Schedule is attached to this Agreement.
- Calculation of Storage Fees. Storage fees are based on the then-current Depository fee schedule for the Precious Metals held in the Customer’s Depository Account, calculated daily. The applicable storage fee percentage will be multiplied by the Spot Value of the total content of Precious Metals held in TPMD Account each day, then divided by the number of days in the applicable year, to determine the daily storage fee. “Spot Value” is the market spot price as of 12:00 am CST on each day for each item in TPMD Account, as quoted on TPMD website (texasdepository.com).
- Payment. Payment for storage and other services shall be made to TPMD in United States Dollars in immediately available funds via an ACH payment initiated by TPMD. Payments will be initiated not less than 5 business days after a Customer Invoice is mailed. If for any reason the payment of the Customer Invoice fails, whether due to insufficient funds in the Customer’s linked account or otherwise, Customer shall pay a monthly late fee of the greater of $30 or 1.5% of the unpaid amount until paid in full. Customer shall be liable for all costs and expenses of collection, including without limitation attorneys’ fees.
- Account Statements. Depository will deliver to Customer a monthly Account Statement setting forth a summary of all items held in the Customer’s Depository Account on the date of the statement and all charges and fees for the statement period (the “Account Statement”). Precious Metals will be identified by the type of metal, form and characteristics of each product, the weight, purity, and quantity of each product, as well as the spot value of the Precious Metals as of the date of the statement. Numismatic items will be identified by a general description of each time as well as the Declared Value as of the date of the statement. Each statement shall be the conclusive record of holdings in TPMD Account each month and charges incurred, unless Customer notifies Depository within fifteen (15) days of the date of the statement of an alleged mistake or discrepancy in the list or value of holdings or the charges incurred.
- Security Interest. Customer grants Depository a right of setoff and security interest and lien on all Precious Metals stored in TPMD Account pursuant to this Agreement to secure payment of storage fees and other charges and expenses levied against TPMD Account. If the account is a joint account or has multiple owners, TPMD may use the contents of the joint account to pay the debt of any account owner. The security interest shall be governed by Uniform Commercial Code Article 9, whether Article 9 applies by its terms or not. TPMD is not required to give any prior notice to the Customer to exercise its right of setoff or security interest.
- Insurance. TPMD will maintain insurance to protect Customer’s Precious Metals holdings and stored items in a TPMD Account against physical loss or damage. Items deposited in TPMD are insured at 100% of the replacement cost as of the date of loss.
- Bullion. Bullion deposited with TPMD shall be valued based on the Spot Value and insured at 100% of the Spot Value as of the date of loss. The insured value of bullion shall at all times be limited to the Spot Value as of the date of loss.
- Numismatic Items. Should Customer wish to deposit any numismatic, rare, or unique items, the Customer shall provide a detailed description of each item to TPMD prior to such deposit with all relevant details and information as well as a stated value of each such item (the “Declared Value”). The item will be insured for the Declared Value. In the event the value of the numismatic, rare, or unique item changes while stored by TPMD, the Customer shall notify TPMD of the change in value and amend the Declared Value in accordance with TPMD’s process for such amendment. The insured value of the item shall at all times be limited to the Declared Value as of the date of loss.
- Exclusions. The insurance provided for Customer’s Precious Metals holdings and stored items does not cover loss or damage caused by or resulting from: (i) natural aging, gradual deterioration, inherent defect, rust or oxidation, moth or vermin, warping, or shrinkage; (ii) aridity, humidity, exposure to light or extremes of temperature unless such loss or damage is caused by frost or fire; (iii) any process of manufacture, modification, or repair; (iv) terrorism; (v) war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority.
- Joint Owners. If there is more than one owner of this account, the owners jointly and individually agree that the right to all property held in TPMD Account shall be held as Joint Tenants with Right of Survivorship and not as Tenants in Common, and each owner is agent for the other in giving and receiving notice or taking any other action affecting the property held in TPMD Account pursuant to this Agreement. Each owner shall have the full power, either before or after the death of another, to receive all the property in TPMD Account and upon the death of an owner, the right to all property held in TPMD Account shall be the absolute property of the surviving owner(s). TPMD is hereby authorized and directed to deal with the surviving owner(s) as the absolute owner(s) of the property. The owners jointly and individually agree to indemnify and hold TPMD harmless from any and all liability, loss, or damage by reason of the delivery of the property held in TPMD Account subject to this Agreement pursuant to this paragraph and agree that the terms hereof shall be binding upon themselves, their and each of their heirs, executors, administrators, and assigns.
- Death or Incompetence of Account Owner. Customer agrees to report to TPMD immediately if any account owner dies or is declared incompetent by a court. TPMD may act as if all owners are alive and competent until it receives notice otherwise. After receiving notice of death or incompetence, TPMD may freeze the account, refuse to accept transactions, and/or reverse or return deposits at its sole discretion. TPMD is not required to release any contents of TPMD Account until it receives any documents it reasonably requests to verify the death or incompetence of any account holder, as well as information necessary to make a determination as to who is entitled to the contents of the account. If TPMD has any tax liability because of paying the contents of the account to the owner’s estate, the estate will be responsible for repaying TPMD the amount of such tax. If an account owner authorizes any transition, but such transaction is not scheduled to execute until after that owner dies, TPMD is authorized to complete the transaction. If a Customer owes TPMD a debt at the time of death, TPMD is authorized to exercise its right of setoff or security interest rights against the contents credited to the account after the Customer’s death. TPMD retains these rights even if a surviving joint owner, a “payable on death” payee, or a beneficiary of an “in trust for” or “trustee for” account has rights to the account.
- Loss Events. In the event of loss, damage, or destruction of any of Customer’s Precious Metals or stored items held in TPMD Account, the parties shall promptly and diligently assist each other to establish the identity of the precious metals or items lost, damaged, or destroyed and shall take any and all reasonable actions as may be necessary to ensure the maximum amount of salvage at a minimum cost. Customer shall provide sworn statements and other documents, books, records, and accounts as requested by Depository to support the amount of Precious Metals and other stored items lost, damaged, or destroyed.
- After receipt from Customer of notice of loss in accordance with TPMD’s policies and procedures, and subject to the terms and conditions of this Agreement, TPMD, at its sole discretion, shall either: (1) make payment to Customer of the Spot Value of those Precious Metals lost, damaged, or destroyed, less the salvage value of such damaged or destroyed items; (2) replace the Precious Metals lost, damaged, or destroyed with new items of the same type, year, fineness, and form (or as close thereto as reasonably possible); or (3) make payment to the Customer of the Declared Value of any numismatic or specialty item lost, damaged or destroyed, less the salvage value of such damaged or destroyed items. In the event Customer opposed the replacement of Precious Metals, and can reasonably demonstrate that the proposed replacement items have a lower market value than the stored items lost, damaged, or destroyed, TPMD shall compensate Customer under option 1 above.
- TPMD’s sole liability for lost, damaged, or destroyed Precious Metals or stored items shall not exceed the Spot Value or Declared Value of such items calculated as of the date of loss. TPMD shall not be liable in any way for any other damages, including consequential, indirect, incidental, special, punitive, or exemplary damages of any kind.
- Upon payment to Customer for a loss event described under this paragraph, Customer agrees to and does hereby assign all of its right, title, and interest in the recovery or subrogation against any third party that may responsible for such loss, damage, or destruction, and shall execute such documents that may be requested by TPMD to perfect such assignment.
- Closing the Account. Either the Customer or TPMD may close TPMD Account at any time for any reason or no reason without prior notice. TPMD is not required to close the account at the Customer’s request if the account has pending transactions or outstanding fees or charges, or is subject to legal process (such as a garnishment, attachment, execution, levy or similar order). In those cases, TPMD may restrict the account against all future withdrawals other than under legal process until pending transactions are paid or returned, the balance is no longer negative, and any legal restriction has been released or resolved. TPMD may automatically close the account if there are no holdings in the account or if the value of the account is negative.
- Warranties. The Customer hereby represents, warrants, and covenants to TPMD the following:
- If the Customer is not a natural person, the Customer is an entity duly formed, validly existing, and in good standing under the laws of the state of its formation. The Customer has all requisite power and authority to own and operate its own properties and to carry on its business as now conducted.
- The Customer (and the representative of the Customer executing this Agreement on behalf of the Customer, if applicable) has full legal and corporate/company right, power, and authority to enter into and to execute and deliver this Agreement, and to carry out the transactions contemplated hereby. The execution and delivery by the Customer of this Agreement and the consummation of the transaction contemplated hereby have been duly authorized by all requisite action on the part of the Customer. This Agreement and each of the other documents and instruments delivered in connection herewith by the Customer constitute the legal, valid, and binding obligation of the Customer, enforceable against the Customer in accordance with their respective terms.
- The execution, deliver, compliance with, and performance by the Customer of this Agreement and each of the other documents and instruments delivered in connection herewith do not and will not (1) violate or contravene the organizational certificates, documents, and agreements, as amended to date, of the Customer, if applicable, (2) violate or contravene any law, statute, rule, regulation, order, judgement, or decree to which the Customer is subject, or (3) conflict with or result in a breach of or constitute a default by any party under any contract, agreement, instrument, or other document to which the Customer is a party or by which the Customer or any of the Customer’s assets or properties are bound.
- All information provided by the Customer to TPMD is complete, accurate, and true in all respects.
- The Customer is, and at all times will continue to be, the sole owner of all right, title, and interest in and to all items deposited into TPMD Account. All items stored in TPMD Account will be free and clear of all liens, charges, or claims in favor of any person or entity, except for any lien created by this Agreement.
- TPMD does not make any warranty or evaluation of the Precious Metals stored in the Customer’s Depository Account. TPMD does not perform assay or other tests of stored items, and TPMD makes no representation as to the authenticity of any Precious Metals or other stored item deposited by Customer or on behalf of Customer, unless such Precious Metals were purchased through Texas Precious Metals, LLC. All Precious Metals and stored items are held by TPMD on a “said to contain” basis.
- TPMD does not advise, counsel, supervise, or otherwise make any representation regarding the purchase, sale, trading, or storage of Precious Metals, nor does TPMD endorse or recommend any broker or dealer of Precious Metals other than TPMD itself. Neither TPMD nor any employee or agent of TPMD makes any guarantee or representation regarding any investment by Customer in Precious Metals or any future value of Precious Metals.
- Limitation of Liability. TPMD shall not be liable for:
- special, incidental, consequential, indirect, or punitive damages or losses, or interest, whether or not caused by the fault or neglect of TPMD and whether or not TPMD had knowledge that such damages or losses might be incurred; or
- any loss, damage, or destruction of Precious Metals or stored items caused by or resulting from: (i) natural aging, gradual deterioration, inherent defect, rust or oxidation, moth or vermin, warping, or shrinkage; (ii) aridity, humidity, exposure to light or extremes of temperature unless such loss or damage is caused by frost or fire; (iii) any process of manufacture, modification, or repair; (iv) terrorism; (v) war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority.
Under no circumstances shall TPMD’s liability for any claim or cause of action, whether based in contract, tort, or other legal or equitable theory, exceed the Spot Value or the Declared Value of the holdings in the Customer’s Deposit Account on the date of the loss.
- Indemnification and Release. The Customer hereby agrees to release, indemnify, defend, and hold harmless TPMD, and each of their respective officers, employees, members, attorneys, representatives, successors and assigns from and against any and all damages, losses, or liabilities it may incur other than as a direct result of TPMD’s gross negligence or willful misconduct, including, without limitation, any and all damages, losses, or liabilities TPMD may incur (1) arising out of or relating to the negligence or willful misconduct of the Customer, the breach by the Customer of any of its covenants contained in this Agreement, or the inaccuracy of any representation or warranty of the Customer contained in this Agreement; (2) from any claims, disputes, suits, proceedings at law or in equity, loss, liabilities, costs, payments, injury, damage, and expenses of any nature (including attorneys’ fees and court costs) brought by or on behalf of any third parties with respect to TPMD Account or any Precious Metals or other product deposited therein from time to time under this Agreement including, without limitation, from third parties claiming or asserting (i) any ownership interest in any Precious Metal or item stored at any facility of TPMD; (ii) any lien or other encumbrance of any kind whatsoever on TPMD Account or any item in the account; or (iii) any taxes arising out of or relating to TPMD Account relationship, (3) as a result of the Customer’s failure to provide a notice of discrepancy within the time periods specified in this Agreement, or (4) arising out of or relating to actions taken by TPMD, or any third party at TPMD’s request, at the direction of the Customer (whether communicated directly to TPMD by the Customer or through a depository agent) in fulfilling TPMD’s obligations under this Agreement.
- Notices. Except as specifically provided elsewhere in this Agreement, any notice and other communications required or permitted to be given under this Agreement shall be given in writing (including by facsimile, email, or website submission) and shall be given by an authorized representative of the party giving such notice (as specified by such party to the other). Facsimile or email notice shall be deemed effective upon the receipt of such notice by the recipient.
If to TPMD:
Texas Precious Metals Depository
959 State Hwy 95N
Shiner, Texas 77984
If to the Customer: At the Customer’s current address and contact information as maintained in the Customer’s depository account profile at www.texasdepository.com.
The Customer agrees to maintain current contact information in his depository account profile at all times. TPMD may, by providing written notice to the Customer, designate different or alternate contact information, which shall be substituted for the information set forth above on the tenth (10th) business day after such notice thereof is given in accordance with this provision. The Customer agrees that TPMD may provide valid notice to the Customer by posting notice on TPMD website and otherwise notifying the Customer that the notice is available to view.
- Compliance with Laws. TPMD endeavors to comply with all laws and regulations which may apply to its operations. Some of those laws also apply to the Customer’s interaction with TPMD and actions related to the purchase, sale, transfer, shipment, or other activities related to Precious Metals. Customer agrees to comply with all applicable laws and regulations and to abide by TPMD’s policies and procedures related to compliance with such laws, including the completion and submission of documentation or information necessary for such compliance.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of laws principals. The Customer and Depository hereby irrevocably agree that any controversy, claim, or dispute arising out of or related to this Agreement or the Customer’s interaction with TPMD shall be subject to the exclusive jurisdiction of the state courts of Lavaca County, Texas. This Agreement shall not be interpreted to conflict with the provisions of Chapter 2116 of the Texas Government Code, as amended, applicable to the establishment and operations of TPMD. To the extent such a conflict exists, the Texas Government Code shall control and this Agreement shall be interpreted as closely as possible to achieve the result intended by this Agreement after resolving such conflict.
- Assignment. This Agreement will be binding on the Customer’s heirs, personal representatives, executors, administrators and successors, and on TPMD’s successors and assigns. The Customer may not assign, transfer, or grant a security interest in the account or the contents of the account to anyone other than TPMD without TPMD’s prior written consent. No assignment will be valid or binding on TPMD, and TPMD will not be considered to have knowledge of such assignment, until TPMD consents to the assignment and notes the assignment in its records. However, by noting the assignment, TPMD does not have any responsibility to ensure that the assignment is valid. Any permitted assignment of the account is still subject to TPMD’s setoff rights and security interest.
- Third Party Beneficiaries. No provision of this Agreement is intended to confer any rights or remedies to any person or entity other than the parties to this Agreement.
- Amendments; Waivers. TPMD may change the terms of this Agreement, including any fees, charges, and features of TPMD Account, at any time upon at least thirty (30) days advance written notice of such changes. Notice may be provided to any joint owner and be deemed to have been given to every owner. By maintaining a TPMD Account after the effective date of the change, the Customer has demonstrated his agreement to the change. The Customer agrees that TPMD has not waived any right by failing to exercise such right, and that TPMD retains the discretion to enforce such rights in the future.
- Entire Agreement. This Agreement, including all attachments, schedules, and exhibits (if any) which are incorporated herein by reference, as it and they may be amended from time to time, constitutes the entire agreement and understanding between the Parties related to the subject matter hereof, and supersedes any and all prior and/or contemporaneous offers, negotiations, promises, exception, and understandings, whether oral or written, express or implied. No representations, warranties, covenants, or agreements not included herein shall be of any force and effect.
- Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of the Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and effective as of the date signed by Customer below:
TEXAS PRECIOUS METALS DEPOSITORY
Effective January 1, 2018
TPMD charges annual storage fees for Precious Metals based on the following:
1. Segregated Storage Rate. All precious metals stored at TPMD are segregated by customer and will not be commingled with other customers’ precious metals. Segregated Storage Rates are based on metal type and stored value. Current rates are as follows:
||$0 – $100,000
||$100,000 – $1,000,000
||$1,000,000 – $5,000,000
|*Additional coverage rate
2. Monthly Billing. The annual storage fee shall be billed monthly in arrears. Each monthly installment of the annual storage charge for segregated storage shall be the greater of: (i) the Monthly Segregated Storage Rate for such month; or (ii) $10.00.
3. Calculation. The Monthly Storage Charge for a calendar month means the amount equal to the average Daily Storage Charge for each day in such calendar month less any applicable Storage Discount (the “Monthly Storage Charge”). The Daily Storage Charge for each day of a calendar month is equal to the sum of the Market Value of each product in the customer’s Account on such day multiplied by the Segregated Storage Rate, divided by 365 (the “Daily Storage Charge”). Market Value means, on any day, the spot market value of a type of precious metals as of the end of each day, as determined by: (i) multiplying the number of ounces of each type of precious metals in Customer’s Account as of the end of such day by the spot market price for such type of precious metals (determined by the midnight CST GLOBEX spot price) as of the end of such day; and (ii) adding Additional Flat Coverage for all certified coins, numismatics, collectibles, or other valuables in storage in Customer’s Account at the end of such day (“Market Value”).
Account Setup Fee
Customer shall pay a one-time account setup fee of $50.00 at the time the account is established.
Customer shall pay a withdrawal fee of $50.00 per withdrawal, whether such withdrawal represents the whole or a portion of items on deposit in Customer’s Account.
Customer shall pay a shipping fee per package for all shipments delivered to destinations in the United States at a shipping charge established by TPMD. All shipments are insured for the Spot Value or Declared Value of the contents, and the cost of insurance is included in the shipping charge. TPMD’s shipping charges are generally discounted from market rates. Packages will be shipped by TPMD in accordance with its shipping standards and by its approved carriers only.
TPMD may assess additional fees for other services it may provide to Customer at Customer’s request. Fees will be disclosed to the Customer prior to being incurred.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and effective as of the date signed by Customer below: