1. Scope of Agreement. eOption, a division of Regal Securities, Inc. ("We"), agree to provide you, in accordance with this Agreement (the "Agreement"), access to the eOption web-based trading platform ("Trading Service").
2. Term and Termination. This Agreement is in effect until terminated by either party at any time, with or without cause, upon written notice to the other party. This Agreement will remain in effect with respect to all Transactions (as defined below) through the Trading Service regardless of any termination or other action with respect to the Trading Service. Transactions (each, a "Transaction") are defined as trades in securities, options, or other financial instruments which will be executed with or through us or one of our affiliates.
Regardless of any other provision of the Agreement, We have the right to suspend or terminate all or any part of any Trading Service (at any time, with or without cause or prior notice), or your access to the Trading Service, to change the nature, composition or availability of the Trading Service, or to change the limits on the trading you may conduct through the Trading Service.
3. Use of the Service.
(a) We grant you, for the term of this Agreement, a personal, limited, non-exclusive, revocable, non-transferable and non-sublicenseable license to use the Trading Service pursuant to the terms of this Agreement. We may provide certain portions of the Trading Service under license from third parties, and you will comply with any additional restrictions on your usage that we may communicate to you from time to time, or that are otherwise the subject of an agreement between you and such licensors.
(b) We are providing the Trading Service to you only for your internal use, except as provided in Paragraph 4(d), and only for the purposes, and subject to the terms of this Agreement. You may not sell, lease, or provide, directly or indirectly, the Trading Service or any portion of the Trading Service to any third party except as permitted by this Agreement. You acknowledge that all proprietary rights in the Trading Service are owned by us or by any applicable third party service providers selected by us providing us with all or part of the Trading Service, or providing you with access to the Trading Service, or their respective licensors, and are protected under copyright, trademark and other intellectual property laws and other applicable law. You receive no copyright, intellectual property rights or other rights in or to the Trading Service, except those specifically set forth in this Agreement. You will protect and not violate those proprietary rights in the Trading Service and honor and comply with our reasonable requests to protect our and our third party service providers' contractual, statutory and common law rights in the Trading Service. If you become aware of any violation of our or our third party service providers' proprietary rights in the Trading Service, you will notify us in writing.
(c) You are responsible for ensuring the Trading Service's security in connection with your use of the Trading Service.
(d) You are bound by, and will comply with, the various legends, disclaimers, terms and conditions and restrictions displayed on or linked to the Trading Service.
(e) You may access the Trading Service only through one or more passwords or other access methods that we specify (collectively, "Access Methods"). You are solely responsible for ensuring that your Access Methods are known to and used by only those users that you authorize ("Authorized Users"). At our request, you will provide us a list of your Authorized Users, their countries of domicile and updates of the list. You acknowledge that, in our discretion, we may deny access to a Trading Service to any user of your Access Methods.
(f) You will be (i) solely responsible for all acts or omissions of any person using the Trading Service through your Access Methods and (ii) without limitation of the foregoing or any other provision of this Agreement, bound by the terms of all Transactions executed and orders placed through the Trading Service using your Access Methods. All transmissions generated by use of your Access Methods will be deemed to be authorized by you and made by an Authorized User whether or not we acknowledge receipt of such transmission.
(g) If your Access Methods have been lost, stolen or compromised, you will promptly notify us and any representative designated by the Trading Service to receive notice. Upon receipt of this notice, your Access Methods will be cancelled but you are responsible for any actions taken through the use of such Access Methods before they are cancelled. In our sole discretion, we may terminate, revoke, suspend, modify, or change any or all of your Access Methods at any time with or without prior notice.
(h) You will be solely responsible for any losses, damages or costs that you may incur as a result of errors made by, or the failure of, the software or equipment that you use to access the Trading Service.
(i) The software used in connection with the Trading Service may include encryption methods that are subject to the export and/or import control laws of the United States and other countries. You will cooperate with us in complying with any such laws.
(a) Each Transaction you execute through the Trading Service is also subject to any other agreement between you and us that applies to the relevant Transaction ("Client Agreements"). If there is a conflict between the terms of this Agreement and the terms of the Client Agreement, the terms of this Agreement will control regarding the Trading Service, (except that any governing law and dispute resolution provisions of the Client Agreement will prevail over Paragraph 10(j) of this Agreement).
(b) We have no obligation to accept, or to execute or cancel, all or any part of a Transaction that you seek to execute or cancel through the Trading Service. Without limitation of the foregoing, we have no responsibility for transmissions that are inaccurate or not received by us, and may execute any Transaction on the terms actually received by us.
(c) You may receive a written or electronic acknowledgement of the status of each Transaction executed through the Trading Service in addition to any written or electronic confirmation of the execution of the Transaction ("Confirmation") that we deliver to you. If there is a conflict between the terms of any Confirmation and (i) the terms of this Agreement, or (ii) the acknowledgement, the terms of the Confirmation will control. Execution terms as reflected in such an acknowledgement or Confirmation or in execution reports are subject to adjustment for errors including but not limited to errors on the part of the markets to which your orders were routed.
(d) You will use the Trading Service and enter into Transactions only for your own benefit and account(s) and will not use the Trading Service on behalf of third parties without our written permission.
(e) You acknowledge that short sales must be done in a margin account and be subject to margin requirements. Prior to creating a short stock position, you must reasonably believe that shares are available to borrow. If we cannot borrow stock, we may buy-in stock on your behalf, without prior notice, to cover short positions. You agree to be liable for any losses or Hard to Borrow Fees. Hard to Borrow Fees are defined as fees We charge for shorting equities that are considered difficult or unavailable to borrow for short selling transactions (and such Fees are variable and may change from day to day).
5. Representations and Warranties.
(a) You represent and warrant to us that your use of the Trading Service will comply with all applicable laws, rules and regulations and with the policies and practices of securities exchanges and clearing houses, alternative trading facilities, and self-regulatory organizations, and the policies and procedures applicable to the Trading Service and this Agreement and any other agreement between you and us, as may be amended from time to time, including rules regarding short sales under U.S. securities laws (e.g., Securities and Exchange Commission Rule 10a-1). Further, you will provide us with all terms and conditions relevant to your orders, designate any of your short sales as such and locate your borrow of shares prior to placing any short sale orders with us, all in accordance with applicable law. Without limitation of the foregoing, you represent and warrant that, if you use the Trading Service to effect transactions (i) in securities that you or your affiliates issued or, (ii) if you are a broker-dealer, investment manager or investment adviser and are acting on behalf of a customer, in securities which the customer or the customer's affiliate issued, such transactions will comply with applicable laws and regulations regarding transactions in securities by issuers and affiliates. Prior to entering an order, you will advise us of any legal restrictions on the transfer of any securities you sell (including Rule 144 or 145(d) under the Securities Act of 1933) and you will provide any necessary documents to us (including prospectuses or opinions) to satisfy legal transfer requirements. You are responsible for any delays, expenses and losses associated with compliance or failure to comply with any restrictions on the transfer of securities. You further represent and warrant that, unless you advise us otherwise, no Transaction executed by you through the Trading Service will be on behalf of a plan subject to the Employee Retirement Income Security Act of 1974 or any similar statute.
(b) We represent and warrant to you that we have all rights, authority and licenses to provide the Trading Service to you, as set forth herein and you represent and warrant to us that you have all consents, rights, authority, and have taken all actions necessary, to use the Trading Service and enter any transactions relating thereto, as set forth herein.
(c) Except as set forth in Paragraph 5(b), we make no warranty, express or implied, to you concerning the Trading Service or with respect to any data or information that we may provide in connection with the Trading Service. You expressly acknowledge and agree that we have made no recommendation with respect to the Trading Service or any Transaction and that we and any third party service providers selected by you or us provide the Trading Service on an "as is" basis, at your sole risk. We expressly disclaim any implied warranties of merchantability or fitness for a particular purpose, including any warranty for the use or the results of the use of the Trading Service with respect to their correctness, quality, accuracy, completeness, reliability, performance, timeliness, continued availability or otherwise.
6. Limitation of Liability; Indemnity.
(a) We, our partners, officers, directors, affiliates, employees and agents (each a "Related Party") have no liability, contingent or otherwise, to you or to third parties, for the correctness, quality, accuracy, security, completeness, reliability, performance, timeliness, pricing or continued availability of the Trading Service or for delays or omissions of the Trading Service, or for the failure of any connection or communication service to provide or maintain your access to the Trading Service, or for any interruption in or disruption of your access or any erroneous communications between us and you. We are not liable for any special, indirect, incidental or consequential damages which you may incur or experience because you entered into this Agreement or relied on the Trading Service, even if we know of the possibility of those damages. We are not responsible for informing you of any difficulties that We or other third parties experience concerning use of the Trading Service for our accounts or other accounts or to take any action in connection with those difficulties. We also have no duty or obligation to verify, correct, complete or update any information displayed in the Trading Service. You are solely responsible for any losses, damages or costs resulting from your reliance on any data or information that we may provide in connection with your use of the Trading Service. You will make your own independent decision to access or use any Trading Service or to execute any Transaction and you acknowledge and agree that the Trading Service do not and will not serve as the primary basis for any of your investment decisions concerning your accounts or your managed or fiduciary accounts. You are solely responsible for any investment or trading decisions you make with respect to products identified on the Trading Service and we are not responsible for determining whether any Transaction you may enter into is suitable, appropriate or advisable. We (and any of our affiliates) are not and will not be, by virtue of providing the Trading Service, an advisor or fiduciary for you or your managed or fiduciary accounts.
(b) You will indemnify, protect, and hold harmless us and our Related Parties from and against any and all losses, liabilities, judgments, suits, actions, proceedings, claims, damages, costs (including attorney's fees) (collectively, "Losses") resulting from or arising out of the use of the Trading Service by you or your Related Parties, including any breaches of the security of the Trading Service (including any access or entry into any of our other systems not covered by this Agreement)
(c) In Paragraph 6(a) the terms "we", "our" and "us" include any third party service providers selected by you or us in connection with the Trading Service, and in Paragraph 6(b) those terms include third party service providers selected by us.
(d) Orders that you enter through the Trading Service may be routed to third party systems, markets or exchanges (each, a "Third Party System"). We are not responsible for any losses, damages or costs that may result from errors made by any Third Party System in reading, processing or executing such orders, or if any Third Party System otherwise fails to properly execute such orders.
(e) Without prejudice to any rights under this Agreement, in case of any breach of our warranty in Paragraph 5(b), our liability is limited to the repair or replacement of any part of the Trading Service that causes the breach.
(f) You agree that, with the exception of the provisions of Paragraph 6(e), our liability and the collective liability of our Related Parties and the third party service providers selected by you or us, if any, arising out of any kind of legal claim (whether in contract, tort, or otherwise) or in any way connected to your use of the Trading Service will not exceed the amount of the profit we received on the specific transaction giving rise to such legal claim unless caused directly by our gross negligence or willful misconduct.
(g) None of the above will limit your rights and remedies under the state or federal securities laws.
7. Data and Information.
(a) You will supply us with all information we may reasonably request in writing concerning you and your use of the Trading Service. You and your Authorized Users will also provide and obtain any consents that we may reasonably request in connection with the provision of information to us by you or on your behalf. We may report information obtained under this Paragraph 7(a) to regulatory authorities or to third party service providers, as we determine in our sole discretion to be necessary. You consent and agree to comply with any of our privacy policies and procedures that we provide.
(b) With respect to any market data or other information that we or any third party service provider provide to you in connection with your use of the Trading Service, (i) we and any such provider are not responsible or liable if any such data or information is inaccurate or incomplete in any respect; (ii) we and any such provider are not responsible or liable for any actions that you take or do not take based on such data or information; (iii) you will use such data or information solely for the purposes set forth in this Agreement and any Client Agreement; (iv) such data or information is proprietary to us and any such provider and you will not retransmit or disclose such data or information to third parties except as required by applicable law or regulation; and (v) you will use such data or information solely in compliance with applicable laws, rules and regulations.
8. No Promotion. Without the prior written consent of the other party, neither party will (i) use the name of the other party, or the name of any of the other party's Related Parties, or any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation of the other party or its affiliates in advertising, publicity, or otherwise; or (ii) represent (directly or indirectly) that any product or any service provided by the party has been approved or endorsed by the other.
9. Electronic Documents. You consent to the delivery of confirmations, any other required or optional communication or agreement under any applicable law or regulation and any agreements or changes in the terms and conditions on the Trading Service, by e-mail, Website or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered to you electronically are deemed to be "in writing." If your signature or acknowledgment is required or requested with respect to any such document and any Authorized User "clicks" in the appropriate space, or takes such other action as may be indicated on the Trading Service, you will be deemed to have signed or acknowledged the document to the same extent and with the same effect as if you had signed the document manually. You acknowledge your understanding that you have the right to withdraw your consent to the electronic delivery and signature of documents at any time by providing prior written notice. However, if you revoke your consent, your access to the Trading Service may be restricted or terminated.
(a) You acknowledge that you entered into this Agreement without inducement by any representation or warranty not set forth in this Agreement. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing and all other oral, written or other communications between the parties concerning this subject matter. This Agreement may be modified only by a subsequent writing signed by both parties.
(b) Neither party may assign the Agreement without the other party's prior written consent. However, we may assign this Agreement to any entity (i) controlling, controlled by, or under common control with us, or (ii) which succeeds to all or substantially all of our assets and business.
(c) If any provision of this Agreement (or any portion thereof) is invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement will not be affected or impaired.
(d) Where any form of the word "including" appears in this Agreement, it will be interpreted as if followed by the phrase "without limitation".
(e) Except as provided in Paragraph 9, all notices will be in writing and hand delivered or forwarded by registered or certified mail to the parties at the addresses listed on the first page. A copy also will be sent to the attention of our legal department or to any other address which we designate in writing after the date of this Agreement.
(f) The headings in this Agreement are intended for convenience of reference and will not affect interpretation.
(g) Each party acknowledges that a breach of any provision of Paragraph 3, 4, 7 or 8 of this Agreement will cause the other irreparable injury and damage. Therefore, injunctive relief may be sought in addition to any other rights and remedies which may be available to the party at law or in equity.
(h) For entities signing this Agreement that are not individuals, the persons executing this Agreement on behalf of their entity represent and warrant that they are duly authorized by all necessary action to execute this Agreement on behalf of their principals.
(i) You agree to cooperate with any reasonable request we may make in order to respond to any inquires made by any third party service providers, exchanges, or other regulatory, self-regulatory or governmental authorities in connection with the Trading Service.
(j) This Agreement is deemed entered into in Glenview, Illinois and will be governed and construed in all respects by the laws of the State of Illinois, without giving effect to principles of conflict of law. Any litigation or other dispute resolution between the parties relating to this Agreement will take place only in the State of Illinois. The parties consent to personal jurisdiction of and venue in the state and federal courts within that county.
(k) Each party's continuing obligations under this Agreement including those relating to "Limitation of Liability; Indemnity" and "Data and Information" will survive the termination of this Agreement.
11. Security Deposit. We may require certain option trading accounts to maintain a security deposit to be held as collateral for option exchange fee pass through amounts. The requirement of a security deposit may depend on several factors, including but not limited to the type of trading or the particular exchange.
12. Pattern Day Trader Designation. An account that conducts four (4) day trades in any consecutive five (5) trading day period will be designated as a Pattern Day Trader. Pattern Day Traders are required to maintain at least $25,000 equity in their account at all times. If the equity falls below $25,000, a day trade margin call will be issued. If the day trade margin call is not met, the account may be restricted or liquidated.
13. Professional Trader Designation — The Professional Trader designation relates to option trading only. If an account places an average of 390 orders per day over a three (3) month period, the account will be designated as a Professional Trader. Professional Trader designated accounts are subject to additional exchange fees and order restrictions.