THIS TERMS OF SERVICE AGREEMENT (this “Agreement”) is made between Option Alpha, LLC (“Company”) and any person (“User”) who, directly or through its authorized representative, accesses the proprietary trading platform (the “TD Ameritrade Trading Platform”) of TD Ameritrade, Inc. (“TD Ameritrade”) through the Company’s website (the “OA Interface” and, accessing the TD Ameritrade Trading Platform through the OA Interface, the “Service”), with each of User and Company a “Party” and together the “Parties”.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER. DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND COMPANY WILL PROMPTLY CANCEL THIS TRANSACTION AND USER.MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
1. Service Terms
a. Relationship of the Company and TD Ameritrade. TD Ameritrade, Inc. and Alta5, Inc. (the parent company of the Company) are separate, unaffiliated companies and they are not responsible for each other’s services and products. The Company disclaims any liability for any act or omission of TD Ameritrade. Alta5, Inc. and TD Ameritrade are parties to that certain Retail Application Programming Interface (API) Usage Agreement (the “Company-Ameritrade Agreement”), under which the Company agrees to offer the OA Interface to the TD Ameritrade Trading Platform.
b. TD Ameritrade Sole Provider of Brokerage Service. Brokerage services are provided exclusively by TD Ameritrade, Inc., member FINRA/SIPC/NFA. The Company does not directly or indirectly provide any brokerage services to User; Company instead, through the Service, allows User to access the TD Ameritrade Trading Platform and to request brokerage Service therefrom. User will enter into a separate agreement with TD Ameritrade or its affiliate with respect to its use of the TD Ameritrade Trading Platform (the “User-Ameritrade Agreement” and, with the Company-Ameritrade Agreement, the “TD Ameritrade Agreements”).
c. Description. The Service is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. User's access to the Service is licensed and not sold. Subject to the timely payment of all subscription fees to Company (the “Fees”) and the terms and limitations set forth in this Agreement, Company agrees to provide User with a personal, non-transferable and non-exclusive account enabling User to access and use the Service.
d. Accessibility. User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company or (iv) similar issues with respect to the TD Ameritrade Trading Platform.
e. Equipment. User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for User's use of the Service, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, programs and Service required to access and use the Service.
a. Equipment. User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for User's use of the Service, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, programs and Service required to access and use the Service.
b. Security. User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User's account by any person. User agrees to bear all responsibility for the confidentiality of User’s password and all use, liability or charges arising from use of the Service with User’s password.
a. Representations. User represents and warrants to Company that: (a) if User is an individual, that User is over the age of eighteen (18) and has the power and authority to enter into and perform User's obligations under this Agreement and that if User is an entity, that User has the entity power and authority to enter into and perform User’s obligations under this agreement; (b) if User is an entity, that User is using the Service on the User’s behalf is duly authorized to do so and is empowered to act on behalf of and to bind the User (c) if User is an individual, that User is a Non-Professional Trader and is using the Service solely on User’s own behalf and not on behalf of any third person; (d) all information provided by User to Company is truthful, accurate and complete; (e) User is the authorized signatory of the credit or charge card provided to Company to pay the Fees; (f) User shall comply with all terms and conditions of this Agreement and the Company’s general Terms and Conditions available here (https://optionalpha.com/terms-and-conditions); and (g) User has provided and will provide accurate and complete registration information including, without limitation, User's legal name and mailing address. A “Non-Professional Trader” is a person who uses market data solely for his or her own personal, non-business use and is not: (i) registered or qualified with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state or securities agency, any securities exchange or association or any commodities/futures contract market/association; (ii) engaged as an investment adviser (regardless of registration status) as that term is defined under the Investment Advisers Act of 1940, as amended; (iii) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require him or her to be so registered or qualified if he or she were to perform such functions for other than an exempt organization; (iv) qualified as a “Securities Professional,” “Professional Client,” or similar terms under the rules and regulations of any securities exchange; or (v) the non-U.S. equivalent to any of the foregoing.
b. Acknowledgments. User acknowledges that (i) Company is not a licensed financial advisor, registered investment advisor, registered broker-dealer or FINRA | SIPC | NFA-member firm, (ii) Company is not a party to, or liable to User under, the User-Ameritrade Agreement, (iii) neither Company nor the OA Interface will provide any brokerage services for User, with any such services being provided on the TD Ameritrade Trading Platform.
User is solely responsible for any and all acts and omissions that occur wider User' s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial entail; (b) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory or libelous, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate store or transmit files graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export re-export or permit downloading of any message or content in violation of any export or import law , regulation or restriction of the United States and its agencies or authorities, or without all required approvals or licenses; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) disseminate store or transmit viruses, Trojan horses or any other malicious code or program; (h) copy, reverse-engineer, or violate the intellectual property rights of the Company and its affiliates in the Service or the OA Interface; (i) performance test, benchmark or otherwise use the Service or the OA Interface for a competitive, analytical, research or any other purpose other than the bona-fide use of the Services for their intended purpose, or (j) engage in any other activity deemed by the Company to be in conflict with the spirit or intent of this Agreement.
This Agreement is effective upon User's acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Company. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User's access to or use of all or any portion of the Service; and (c) terminate this Agreement.
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER'S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
7. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER. ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR. DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE (INCLUDING WITHOUT LIMITATION THE USER-AMERITRADE AGREEMENT AND TRADES MADE BY USER ON THE TD AMERITRADE TRADING PLATFORM), OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THIS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.. IF USER IS DISSATISFIED WITH THE SERVICE, USER' S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE ANID TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.
User agrees to indemnify, hold harmless and defend Company, alta5, Inc., their affiliates, and their respective shareholders, directors, officers, members, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person, arising out of correlating to: (a) this Agreement; (b) User's use of the Service, including any data or work transmitted or received by User; (c) any liability under a TD Ameritrade Agreement directly or indirectly caused by User’s act or omission, and (d) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable at Section 4.