The following terms apply to users and accounts at optionsXpress:
General Conditions of Use - optionsXpress
User Agreement
The investment choices and services on publicly available portions of
the optionsXpress, Inc. ("optionsXpress") site are provided
as general information only and are not intended to provide investment
recommendations, tax, or legal advice. Under no circumstance is the information
contained herein to be used or considered as an offer to sell or a solicitation
of an offer to buy any particular investment.
The products and services described in pages of this web site are only
offered in jurisdictions where they may be legally offered for sale.
optionsXpress products and services are intended for U.S. customers and
may not be offered or available in other countries, including the United
Kingdom, Singapore, Hong Kong, Malaysia, and Taiwan among other jurisdictions.
Not all securities, products, or services described are available in
all countries, and nothing on this site constitutes an offer or solicitation
of these securities, products, or services in any jurisdiction where
their offer or sale is not qualified or exempt from registration. Information
provided is obtained from sources deemed to be reliable. Facts and information,
when placed on this web site, were believed to be accurate. Product offers,
rates, terms and other information provided herein are subject to change
without notice. optionsXpress, its agents and its affiliated companies
do not guarantee the accuracy or completeness of the information or make
any warranties, express or implied, with regard to the results to be
obtained from its use.
Systems Are Subject to Occasional Congestion, Technological
Problems or Outage
System response and access times may vary due to market conditions, system
performance, and other factors. High volumes of trading and volatility
may result in executions at prices significantly away from the price
quoted or displayed at the time of order entry.
optionsXpress maintains sophisticated systems and employs experienced
personnel to receive and process your transactions over the Internet.
Information processing and communications systems, both our own and those
of third parties on whom we depend, are subject to occasional congestion,
technological problems, or in extreme cases, outage.
Beyond our proprietary systems, third party providers include market
centers that execute orders and quote vendors. Failure of a critical
system for a significant period of time could limit our ability to rapidly
and accurately process transactions.
optionsXpress clears through optionsXpress, Inc. pursuant to a clearing
agreement. Links to other web sites or references to other products,
services or publications do not imply the endorsement or approval of
such web sites, products, services or publications by optionsXpress,
its agents or its affiliates.
Trademarks Belonging to optionsXpress, Inc.
Certain names, graphics, logos, icons, designs, words, titles or phrases
at this web site may constitute registered trade names, trademarks
or service marks of optionsXpress, Inc. or other entities. The display
of the above on pages at this web site does not imply that a license
of any kind has been granted. Any unauthorized downloading, re-transmission
or other copying or modification of the above and/or the contents herein
may be a violation of the law and could subject those engaging in such
activities to legal action.
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optionsXpress Account Terms and
Conditions
In consideration of our accepting and maintaining an Account for
you, you hereby agree that you have read, understand and agree to the
following Terms and Conditions. You further understand that your use
of the site, your placing of any order to effect transaction(s), your
placement of assets in an optionsXpress account, and/or your use of
optionsXpress public or private services, constitutes assent to the
Terms and Conditions then posted and in effect on the optionsXpress
site.
1. Parties
This document ("Agreement") contains important information
regarding the terms and conditions which apply to you and your Account
(referred to as "you" "your" and/or "Account").
All rights conveyed under the terms and provisions of this Agreement
apply to optionsXpress, Inc., its agents and assigns (referred to as "optionsXpress," "we", "us", "our",
or "ours").
2. The Terms "Securities" and "Property"
For the purposes of this Agreement, the terms "securities" and "property" shall
include, but are not limited to, currencies, securities, options contracts,
financial instruments, commodities of every kind and nature, and all
contracts and options relating thereto, whether for present or future
delivery.
3. Applicable Rules and Regulations
All transactions shall be subject to all then applicable United States
federal and state laws rules and regulations promulgated thereunder;
the constitution, rules, customs and usages of the applicable exchange,
association, market or clearing house, and the customs and usages of
those transacting business on such exchange, market or clearing house
where transactions, custody or business of the Accounts are done.
4. Headings are Descriptive
The heading of each provision hereof is for descriptive purposes
only and shall not be deemed to modify or qualify any of the rights or
obligations set forth in each such provision.
5. Amendments
We may at any time amend this Agreement, by modifying or rescinding any
of our existing provisions or conditions or by adding any new provision
or condition, by conspicuously posting notice of such amendment on
our web site or by providing written notice to you. Continued use of
optionsXpress' sites or services after such notice will constitute
acknowledgment and acceptance of such amendment.
6. Entire Agreement
This Agreement represents the entire agreement between you and us concerning
the subject matter herein. Certain policies and/or procedures may be
further outlined on the optionsXpress web site and by your use of our
web site and services, you agree to be bound by any and all such postings.
You may not assign any right or obligations hereunder without first
obtaining the prior written consent of an authorized officer of optionsXpress.
7. Other Agreements Apply
You agree and understand that other specific disclosures, terms and conditions
apply to your use of the site and your account. It is your continuing
obligation to understand such terms, and you agree to be bound by such
terms as are in effect at the time of your use or maintenance of your
account as they apply. Such agreements include, but are not limited
to:
A. Margin Accounts
B. Options Accounts
C. Short Option Trading
D. Exchange Data Use Agreements
E. Electronic Delivery of Confirmations
F. Terms and Risks relating to: Stop Orders, Spreads, NBBO, Expiration
/ Daily Assignments etc.
8. Clearing Status
optionsXpress introduces your account and transactions on a fully disclosed
basis. optionsXpress has entered into a clearing arrangement with optionsXpress, Inc., hereinafter referred to as the "Clearing
Agent" or "agent", to perform certain services and the
Clearing Agent is carrying your Account as a clearing broker pursuant
to such clearing agreement. These services include but are not limited
to the preparation of customer trade confirmations and customer statements,
the settlement of securities transactions, the performance of designated
cashiering functions, and the preparation of certain books and records
related to reported securities transactions. Additional terms relating
to the responsibilities of optionsXpress and of its Clearing Agent
are detailed in a separate document available on the optionsXpress
web site.
You understand and agree that any rights that either the Clearing Agent
or optionsXpress have under this Agreement may be exercised by either
the Clearing Agent or optionsXpress or may be assigned to the other,
including, but not limited to, the right to collect any debit balance
or other obligations owing in your Account, and that the Clearing Agent
and optionsXpress may collect from you or enforce any other rights under
this Agreement independently or jointly.
9. Current Information
You agree to always provide optionsXpress with accurate information which
you update when your circumstances change. You represent and warrant
that the information you supply in your new Account documentation,
your account profile, and all other information requested by us and
provided by you is accurate and truthful. You further understand that
you have a duty to immediately update such information if your information
or financial circumstances change.
10. Security Interest and Lien
All securities and other property now or hereafter held, carried or maintained
by us in our possession or control, for any purpose, in or for the
benefit of any of your Accounts, now or hereafter opened, including
any Account in which you may have an interest, shall be subject to
a continuing first lien and first priority perfected security interest
in favor of us for the discharge of all indebtedness and your other
obligations to us, and are to be held by us as security for the payment
of any liability or indebtedness of yours to us in any of said Accounts.
You authorize us the right to transfer securities and other property
so held by us from or to any other of your Accounts held by us, whenever,
in our judgment, we consider such transfer necessary for our protection.
In enforcing our lien and security interest, we shall have the right
and discretion to determine which securities and properties are to be
sold and which contracts or positions are to be closed.
11. Account Restriction or Breach
In the event of a breach or default by you under this Agreement, we shall
have all rights and remedies available to a secured creditor under
all applicable laws and in addition to the rights and remedies provided
herein. You understand that we may at any time, at our sole discretion
and without prior notice to you; prohibit or restrict your access to
the use of the web site or related services and your ability to trade,
we may refuse to accept any of your transactions, we may refuse to
execute any of your transactions, and/or we may terminate your Account.
The closing of an Account will not affect the rights and/or obligations
of either party incurred prior to the date the Account is closed.
Payment of Indebtedness Upon Demand. You shall at all times be liable
for the payment, upon our demand, of any debit balance or other obligations
owing in Accounts of yours with us, and you shall be liable to us for
any deficiency remaining in any such Accounts in the event of the liquidation
thereof, in whole or in part, by us or by you; and, you shall make payment
for such obligations and indebtedness upon demand by us.
12. Check Deposits
You understand and agree that we may hold funds deposited by you for
any length of time until payment is made and the deposit has cleared.
Alternatively, we may offer you the privilege of trading against check
deposits before collection of the proceeds, and in any case, if a deposited
check is dishonored by the bank on which drawn or the privilege is
otherwise abused, we may, at any time in its sole discretion without
notice, revoke this privilege and/or liquidate all securities positions
in your Account that were purchased/sold short using the uncollected
funds without incurring any liability on our part, any trading gains
resulting from trading against uncollected funds represented by a deposited
check or other financial instruments are our property unless and until
the funds represented by that instrument (not a substitute or supplemental
instrument) are collected by us, and you remain responsible to us for
any losses resulting from such trading, in addition to your responsibility
to make good any dishonored check.
In addition, you acknowledge and give approval that we may, at our discretion
and without further prior notice, utilize an electronic check process
or Automated Clearing House (ACH) facility to draft funds in the amount
of any of your checks payable to optionsXpress, its agents or assigns.
13. Joint / Multi-party Accounts
If you maintain a joint or multiparty Account, unless you notify us otherwise
and provide such documentation as we require, your Account shall be
held by you will be held in joint tenancy with rights of survivorship.
Each joint tenant irrevocably appoints the other as attorney-in-fact
to take all action on his or her behalf and to represent him or her
in all matters with respect to this agreement. You agree to indemnify
us and we shall be fully protected in acting upon the instructions
of either of you. This includes the sending of confirmations, statements,
notices or other communications to either of you, or in making delivery
to any of the joint owners of any and all securities and other property
in the Account, or making payments to any of the joint owners of any
or all monies in the Account as any of the joint owners may order and
direct, or specifically fulfilling obligations pertaining to and/or
as a result of any check writing privileges of either joint tenant.
We shall be under no obligation to inquire as to the purpose of any
such demand for deliveries and payments. However, you understand that
we may request at our sole discretion that each party or person authorize
a specific transaction, including deposits or withdrawals, although
we may not be required to do so. Each of you shall be jointly and severally
liable for any amounts due to us pursuant to this Agreement, whether
incurred individually or by both of you.
In the event of the death of any of the joint owners, the surviving
joint owner(s) shall immediately give optionsXpress proper written notice
thereof, and we may, before or after receiving such notice, take such
actions, require such documents, and restrict transactions in the Account
as we deem advisable, in our sole discretion. The estate of any deceased
joint owner shall be liable and each survivor will be liable, jointly
and severally, to us for any debt or loss in the Account resulting from
the completion of transactions initiated prior to our receipt of a written
notice of death, or for debt or loss incurred in the liquidation of the
Account or the adjustment of the interests of the joint owners.
Any taxes or other expense becoming a lien against or being payable
out of the Account subsequent to the death of any of the joint owners
shall be chargeable against the interest of the surviving joint owner(s)
as well as against the interest of the deceased joint owner's estate.
14. No Advice Online
You understand that we, through our web site, provide no tax, legal or
investment advice of any kind, nor do we give advice or offer any opinion
with respect to the nature, potential value or suitability of any particular
securities transaction or investment strategy. You further understand
that while you may be able to access investment research reports through
the Internet from our web site, including computerized online services,
the availability of such information does not constitute a recommendation
to buy or sell any of the securities discussed therein or to engage
in any of the investment or trading strategies presented therein. Any
investment decisions you make will be based solely on your own evaluation
of your financial circumstances and investment objectives and the suitability
for you of any security or any investment or trading strategy. Any
order entered using your password is yours or your duly authorized
designee's.
15. Third Party Access
Your use or your grant of access to your account to any third party to
access information or place transactions in your account is at your
sole risk. If you authorize or allow third parties to gain access to
our services, including your Accounts, you will cooperate in defending
and indemnifying us against any liability, costs or damages arising
out of claims or suits by such third parties based upon or relating
to such access and use. optionsXpress does not warrant against loss
of use or any direct, indirect or consequential damages or losses to
you caused by your assent, expressed or implied, to a third party access
to your account or information, including access provided through "API" users,
aggregators or any other third party systems or sites.
16. Order Entry
You understand that all orders submitted or entered by you, either electronically
or otherwise, are based upon your investment decisions, are unsolicited
and are your sole responsibility, and you will not hold, nor seek to
hold, optionsXpress or any of our officers, directors, employees, agents,
subsidiaries or affiliates, liable for any trading losses or other
losses incurred by you. You understand that entering an order with
us, including market orders, either electronically or otherwise, does
not guarantee execution of the order, and you agree that optionsXpress
shall not be responsible for any order that is not executed. You understand
that optionsXpress, the Clearing Agent, or any regulatory body, exchange
or clearing agent, has the right to cancel or break any executed transaction
on the grounds that it was, in our or their opinion, "clearly
erroneous". We shall not be deemed to have received any order
electronically transmitted by you until we have actual knowledge of
such order. You understand that all electronic orders are only acceptable
through order entry screens provided by us.
17. Cancellation Requests
When you place a request to cancel an order, the cancellation of that
order is not guaranteed. Your order will only be canceled if your request
is received in the marketplace and matched up with your order before
your order is executed. During market hours, it is rarely possible
to cancel your market order as market orders are subject to immediate
execution. Do not assume that any order has been executed or cancelled
until you have received a transaction confirmation from us via e-mail
or the optionsXpress web site.
18. Late and Corrected Reports
Be aware that we, from time to time, receive late reports from exchanges
and market makers reporting the status of transactions. Accordingly,
you may be subject to late reports related to orders that were previously
unreported to you or reported to you as being expired, cancelled or
executed. In addition, any reporting or posting errors, including errors
in execution prices, will be corrected to reflect what actually occurred
in the marketplace or exchange.
19. Transactions and Settlements
All orders for the purchase and sale of securities and other property
will be authorized by you and executed with the understanding that
an actual purchase or sale is intended and that it is your intention
and obligation, in every case, to deliver certificates to cover any
and all sales or to pay for transactions upon our demand. If we make
a sale of any securities and/or other property at your direction, and
if you fail to deliver to us any securities and/or other property that
we have sold at your direction, we are authorized to borrow or otherwise
obtain the securities and other property necessary to enable us to
make delivery, and you agree to be responsible for any cost or loss
we may incur, including the cost of borrowing and obtaining the securities
and other property. You agree that optionsXpress acts as your agent
to complete all such transactions and is authorized to make advances
and expend monies as required.
20. Execution of Orders
Though orders are usually routed to the marketplace or exchange within
seconds, certain orders, at our sole discretion, may be subject to
manual review and entry, which may cause delays in the processing of
your orders. You also understand that with respect to any order, you
will receive the price at which your order was actually executed in
the marketplace or exchange, which may be different from the price
at which the security or option is trading when your order is entered
into our system. Consistent with the overriding principle of best execution
and subject to applicable regulatory requirements, you agree that we
may use our discretion in selecting the market or exchange in which
to enter your orders.
21. Purchases of Securities
Cash transactions must be paid for in full, and any securities sold must
be available for delivery by settlement date or we may, as required
by law or in our discretion, delay settlement or cancel or otherwise
liquidate transactions without prior notice. Day Trading, as defined
by regulation, is not permitted in "cash accounts" unless
the aggregate cash required to pay for all purchases is available,
not including the sales proceeds from the day-traded shares.
22. Excess Purchases
To process orders to purchase securities we generally require that your
Account contain buying power equal to or greater than the purchase
price of the securities prior to trade date. However, you may not rely
on our software controls and you have an obligation to refrain from,
cancel and immediately report any transaction that provides evidence
of an over-purchase or excess equity requirement. Any order accepted
and executed without sufficient funds in the Account will be subject
to cancellation or liquidation at our discretion. You are responsible
for review of your orders, including any orders which exceed available
funds in your Account. If full funds are not available in the Account
and an order is processed, you must contact us and arrange to provide
prompt payment via wire or personal check, cashier's check or money
order. If payment is not received by settlement date, or as market
conditions warrant, positions may be liquidated according to procedures
contained elsewhere herein, and you will remain liable for any resulting
losses and all associated costs incurred by us.
23. Sales of Securities - Long and Short Sales
We require that securities be deposited into an Account and in good deliverable
form prior to the acceptance of a long sale order. Any sell order will
be deemed a long sale unless, at the time the order was entered, you
expressly request and receive permission from optionsXpress to place
the order as a short sale. In order to complete a short sale, we must
be able to borrow the security you sold and did not own. In the event
that we are unable to borrow the security you have sold short, you
will be subject to a buy-in of the security for your Account without
prior notice and at your expense. You understand that although you
may receive authorization to sell short, you remain subject to buy-in
at any time in the event that the shares become no longer available
for borrowing or loan.
24. Confirmations, Statements, Notices and Other Communications
You acknowledge that optionsXpress delivers both binding and non-binding
communications to you regarding your account. optionsXpress uses its
best efforts to identify each communication as either binding (also
described as official notices) and non-binding (often "real-time" or
online account information). Despite the nature or method of conveying
this information, you are responsible for reporting any discrepancies
in a timely manner. You understand that optionsXpress delivers real-time
information about the status of your orders by email along with providing
online ledgers and order status information which are non-binding upon
optionsXpress, it agents and assigns; and that such information may
be changed based on market corrections and resolution of discrepancies
among other factors.
25. Information Review
You understand that it is your responsibility to review, upon first receipt,
whether delivered to you by e-mail, by U.S. postal mail or other electronic
means, all confirmations, statements, notices and other communications,
including but not limited to, margin and maintenance calls, and prospectuses.
Such notices and other communications sent to you by mail or electronically
or left for you on your voicemail, or otherwise, shall be deemed to
have been delivered to you when sent, whether actually received or
not. All information contained therein shall be binding upon you, if
you do not object, either in writing or via electronic mail, within
forty-eight (48) hours after any such document is sent to you. In all
cases, we reserve the right to determine the validity of your objection
to the transaction. Notices and other communications may also be provided
to you verbally.
26. Payment for Order Flow
The Securities and Exchange Commission (the "SEC") and the
Financial Industry Regulatory Authority ("FINRA") require
that all broker/dealers inform their customers, when a new Account is
opened, on an annual basis thereafter, and on confirmations of transactions,
of payment for order flow practices (compensation received for placing
orders through certain "market makers" and specialists on registered
U.S. exchanges). Consistent with the requirement to seek best execution,
orders placed through us will be routed to primary exchanges and other
market centers, including regional securities exchanges, dealers that
make markets over-the-counter ("OTC"), Alternative Trading
Systems and Electronic Communication Networks ("ECNs"). In
an effort to obtain best execution, we may consider several factors,
including price improvement opportunities (executions at prices superior
to the then prevailing inside market on OTC or national best bid or offer
for listed securities), whether we will receive cash or non-cash payments
for routing order flow and reciprocal business arrangements. Further
information about the source and nature of the compensation for a particular
transaction will be provided upon written request.
27. Customer's Responsibility Regarding Certain Securities
Certain securities may grant the holder thereof valuable rights that
may expire unless the holder takes action. These securities include,
but are not limited to, options, warrants, stock purchase rights, convertible
securities, bonds and securities subject to a tender or exchange offer.
You are responsible for knowing the rights and terms of all securities
in your Account. We are not obligated to notify you of any upcoming
expiration or redemption dates, or to take any other action on your
behalf, without specific instructions from you, except as required
by law and applicable rules of regulatory authorities. However, if
any such security is about to expire worthless or be redeemed for significantly
less than its fair market value, and we have not received instructions
from you, we may, at our discretion, sell the security and credit your
Account with the proceeds.
Similarly, you are responsible for knowing about reorganizations related
to securities which you hold, including, but not limited to, stock splits
and reverse stock splits. We are not obligated to notify you of any such
reorganization. If, due to a reorganization or bookkeeping or data entry
error, you sell more shares of a security than you own, or if you become
uncovered on an options position, or if you become otherwise exposed
to risk requiring us to take market action in your Account, we will not
be responsible for any losses you may incur. Overselling is an "unauthorized" and "prohibited" short
sale and may result in your Account being restricted.
28. "Control" or "Restricted" Securities
Prior to depositing or placing an order in connection with the sale or
transfer of any securities subject to Rules 144 or 145 under the Securities
Act of 1933, as amended, you must advise optionsXpress of the status
of the securities, receive our express permission for such transaction,
and you must furnish us with the necessary documents including applicable
opinions of legal counsel to clear legal transfer. Even if the necessary
documents are furnished in a timely manner, there may be delays with
the processing of such securities. We, at our sole discretion, may
require that such securities not be sold or transferred until they
clear legal transfer. You are responsible for all costs associated
with compliance or failure to comply with all the requirements of Rules
144 and 145 including any fees associated with the administration,
processing or negotiation of such securities by us or any agent.
29. Lost Securities
If your periodic statement indicates that securities were forwarded to
you and you have not received them, you should notify us immediately.
If notification is received within one hundred and twenty days (120)
after the mailing date, as reflected on your periodic Account statement,
replacement will be made free of charge. Thereafter, a fee for replacement
may apply.
30. Fees and Charges
You understand that we may charge commissions and other fees for execution
or any other transaction or service furnished to you, and you agree
to promptly pay such commissions and fees at our then prevailing price
or rates. You acknowledge and agree that such commission rates and
fees are determined and set solely by us and are subject to change
at any time by posting such notice on our web site, and you agree to
be bound thereby. You also agree to pay any applicable exchange and
ECN fees. You further agree to pay all applicable federal, state and
local fees and taxes.
31. Margin Requirements and Margin Interest Charges
You agree that you will maintain such securities and other property in
your Account as collateral as required by all applicable statutes,
rules, regulations and procedures or as we in our sole discretion deem
necessary or advisable. You agree to promptly satisfy all margin and
maintenance calls upon demand. You understand that the interest charge
made to your Account at the close of a charge period will, unless paid,
be added to the opening balance for the next charge period and that
interest will be charged upon such opening balance, including all interest
so added. You understand that the rate of interest charged to your
Account is based on the Broker Call Money Rate plus 2%. You are always
welcome to check the interest rate with customer service. We reserve
the right to negotiate the interest rate for credit extended. Interest
charges are calculated on the daily net debit balance in your Account
based upon a sliding scale of percentage above and below the Broker
Call Money Rate. Interest will be posted monthly to your Account and
is calculated on a 365-day year. Interest charged can be verified by
using the following formula as noted below:
[Average debit balance] x [interest rate] x
[number of days Account was in a debit for the interest period] /
divided by [365 days]
32. Consent to Loan or Pledge of Securities in Margin Accounts
Within the limits of applicable law and regulations, you hereby authorize
the Clearing Agent to lend, either to us or to others, any securities
held by the Clearing Agent for your Account, together with all rights
of ownership, and to use all such property as collateral for our general
loans. Any such property, together with all attendant rights of ownership,
may be pledged, repledged, hypothecated or rehypothecated either separately
or in common with other such property for any amounts due to us thereon
or for greater sum, and the Clearing Agent shall have no obligation
to retain a like amount of similar property in our possession and control.
In connection with such securities loans, we may receive and retain
certain benefits to which you will not be entitled. You understand
that, in certain circumstances, such loans could limit your ability
to exercise voting rights, in whole or part, with respect to the securities
lent.
33. Calls for Additional Collateral and Liquidation
If we, at our sole discretion, consider it necessary for our own protection,
we may require you to immediately deposit cash or collateral into your
Account. If you do not provide the additional collateral, you understand
and acknowledge that we have the right to sell any or all securities
and other property in your Account; buy any or all securities and other
property which may be short in your Account; cancel any or all open
orders; and/or close any or all outstanding contracts.
34. Liquidation without Prior Notice
In addition, you understand and agree that we may exercise any or all
of the above rights without demand for additional collateral, or notice
of sale or purchase, or other prior notice or advertisement. Any such
sales or purchases may be made at any time at our discretion on any
exchange or other market where such business is usually transacted,
or at public auction or private sale, or we may be the purchaser/seller
for our own Account. It is understood that our giving of any prior
demand or call or prior notice of the time and place of such sale or
purchase shall not be considered as a waiver of our legal right to
sell or buy without any such demand, call or notice, nor are we bound
by such prior demand or notice to forestall action to buy or sell.
35. Free Credit Balances
You hereby direct optionsXpress and/or our agents to use any free credit
balance awaiting investment or reinvestment in your Account in accordance
with all applicable rules and regulations and to pay interest thereon
at such rate or rates and under such conditions as are established
by us from time to time.
36. Market Data
You understand that each participating national securities exchange or
association asserts a proprietary interest in all of the market data
it furnishes to parties that disseminate said data. You understand
that neither optionsXpress nor any participating national securities
exchange or association nor any supplier of market data guarantees
the timeliness, sequence, accuracy, completeness, reliability or content
of market information, or messages disseminated to or by any party.
You understand that neither optionsXpress nor any participating national
securities exchange or association nor any supplier of market data
warrants that the service will be uninterrupted or error-free. You
agree that your use of our web site or any optionsXpress service is
at your sole risk. The optionsXpress service is provided on
an "as is", "as available" basis without warranties
of any kind, either express or implied, including, without limitation,
those of merchantability and fitness for a particular purpose, other
than those warranties which are implied by and incapable of exclusion,
restriction or modification under the laws applicable to this agreement.
37. Exchange Provided Terms (OPRA)
You acknowledge and agree that neither the OPRA Participants ("Participants" and/or "Exchanges")
nor the processor under the OPRA Plan (the "Disseminating Parties" and/or "optionsXpress")
guarantee the timeliness, sequence, accuracy or completeness of Market
Data or of other market information or messages disseminated by any Disseminating
Party.
Waiver of Liability
You understand and acknowledge that each national securities exchange
that is a participant in the OPRA Plan ("OPRA Participant")
has a proprietary interest in the Market Data that originates on
derives from it or its markets. For the purposes of this Section
only, "Market Data" means (a) options last sale reports,
(b) options quotation information, (c) such index and other market
information as the OPRA participants may from time to time make available,
and (d) all information that derives from any such information. Neither
you nor any other person shall hold any Disseminating Party liable
in any way for (a) any inaccuracy , error or delay in, or omission
from, (i) any such data, information or message or (ii) the transmission
or deliver of any such data, information or message, or (b) any loss
or damage arising from or occasioned by (i) any such inaccuracy,
error, delay or omission, (ii) non-performance or (iii) interruption
in any such data, information or message, whether due to any negligent
act or omission by any Disseminating Party, or to any "force
majeure" (e.g., flood, extraordinary weather conditions, earthquake
or other act of God, fire, war, insurrection, riot, labor dispute,
accident, action of government, communications or power failure,
equipment or software malfunction) or other cause beyond the reasonable
control of any Disseminating Party.
No Right to Re-disseminate
You shall use real-time quotes only for your individual use and shall
not furnish such data to any other person or entity. You understand
and agree that you shall use Market Data only for your own personal
or business use, and shall not furnish Market Data to any other person.
You further understand and agree that, at any time, the OPRA Participants
may discontinue disseminating any category of Market Data, may change
or eliminate any transmission method and may change transmission
speeds or other signal characteristics. You shall not hold the OPRA
Participants liable for any resulting liability, loss or damage that
may consequently arise. You understand and acknowledge that this
Section confers third-party beneficiary status on optionsXpress.
In authorizing us to take any action, or to receive any communication,
this Section authorizes us to act on our own behalf and on behalf
of the OPRA Participants.
Enforceability of OPRA Rights
You understand that the terms of this Agreement may be enforced directly
against you by the national securities exchanges, associations and
others providing market data. Any OPRA Participant may enforce this
Section as to Market Data that originates on or derives from its
markets, by legal proceeding or otherwise, against you and may likewise
proceed against any person that obtains such Market Data other than
as this Section contemplates. No act or omission on our part and
no other defense that might defeat our recovery against you shall
affect the rights of the Disseminating Parties as third-party beneficiaries
under this Section. You shall pay reasonable attorneys' fees that
any Disseminating Party incurs in enforcing this Section against
you.
Perpetuity to this Clause
This specific Section shall remain in effect for so long as you have
the ability to receive Market Data as contemplated by this Agreement
and all terms relating to limitation of liability shall survive the
termination of this Agreement.
Limitation of Liability, Force Majeure
Neither we nor any disseminating party shall be liable, and you agree
to indemnify and hold harmless optionsXpress and such disseminating
party, for any inaccuracy, error or delay in, or omission of, (1)
any such data, information or message, or (2) the transmission or
delivery of any such data, information or message; or any loss or
damage arising from or occasioned by (i) any such inaccuracy, error,
delay or omission, (ii) non-performance, or (iii) interruption in
any such data, information or message, due either to any act or omission
by optionsXpress or any Disseminating Party or to any "force
majeure" (as defined above) or any other cause beyond the reasonable
control of optionsXpress or any Disseminating Party.
38. Disclosure of Affiliated Persons
You represent that, except for your notification of such status in writing,
neither you nor any member of your immediate family are an employee
of any exchange, any corporation of which any exchange owns a majority
of the capital stock, a member of any exchange or self regulatory agency,
a member of any firm or member corporation registered on any exchange,
a bank, trust company, insurance company or any corporation, firm or
individual engaged in the business of dealing either as broker or as
principal in securities, bills of exchange, acceptances or other forms
of commercial paper. You understand that you will promptly notify us
in writing if you or a member of your immediate family become so employed
or become registered or employed in any of the above capacities.
39. Disclosure by Professionals and Insiders
You agree to promptly notify us in writing if you are now or if you become:
(a) registered or qualified with the FINRA or the SEC, the Commodities
Futures Trading Commission, any state securities agency, any securities
exchange or association, or any commodities or futures contract market
or association; (b) an "investment advisor" as that term
is defined in Section 201(11) of the Investment Advisors Act of 1940
(whether or not registered or qualified under that act); or (c) employed
by a bank or other organization exempt from registration under federal
and state securities laws to perform functions that would require you
to be so registered or qualified if you were to perform such functions
for an organization not so exempt; (d) an officer , director or 10%
stockholder of any publicly traded company.
40. Disclosures to Issuers
Under Rule 14b-1(c) promulgated under the Securities Exchange Act of
1934, as amended, optionsXpress is required to disclose to an issuer
the name, address, and position of its customers who are beneficial
owners of that issuer's securities unless you object. If you do not
notify us of such objection in writing, we will make such disclosures
to issuers.
41. Impartial Lottery Allocation System
You agree that in the event we hold on your behalf securities which are
callable, either in whole or in part, you will participate in the impartial
lottery allocation system of the called securities in accordance with
the provisions of the rules of the CBOE, FINRA or any other appropriate
self-regulatory body. You understand that when any such call is favorable,
no allocation will be made to any Account in which optionsXpress has
actual knowledge that our affiliates, directors, officers or employees
have a financial interest until all other customers are satisfied on
an impartial lottery basis.
42. Limitation of Access
You acknowledge, represent and warrant that you have received a password
which provides access to your Account and that you are the sole and
exclusive owner and are the only authorized user of such password and
accept sole responsibility for use, confidentiality and protection
of the password as well as for all orders and information changes (i.e.,
change of address) entered into your Account using such password.
You accept full responsibility for the monitoring and safeguarding of
your Accounts. You will immediately notify us in writing, delivered via
e-mail and certified/return receipt requested U.S. Mail, if you become
aware of any loss, theft or unauthorized use of your password and Account
number; or any failure by you to receive a message from us indicating
that an order was received and executed; or any failure by you to receive
an accurate written confirmation of an execution; or any receipt by you
of confirmation of an order and/or execution which you did not place;
or any inaccurate information in your Account balances, securities positions,
or transaction history.
If you fail to notify us immediately upon your knowledge when any of
the above conditions or other disclosure of access details occurs, neither
we nor any of its officers, directors, employees, agents, affiliates
or subsidiaries can or will have any responsibility or liability to you
or to any other person whose claim may arise through you for any claims
with respect to the handling, mishandling or loss of any order. Under
no circumstances, including negligence, shall we or anyone involved in
creating, producing, delivering or managing our services be liable for
any direct, indirect, incidental, special or consequential damages that
result from the use of or inability to use the service, or out of any
breach of any warranty. This exclusion or limitation of liability will
not apply to the extent that any applicable statute prohibits such exclusion
or limitation of liability. To the extent that any applicable statute
applies which modifies the above, our liability shall not include any
hypothetical gains or losses, and it is agreed that the trier of fact
shall only consider the actual acts, or lack thereof, of the parties
to this agreement.
The use and storage of any information including, without limitation,
the password, portfolio information, transaction activity, Account balances
and any other information or orders available on your personal computer
is at your own risk and is your sole responsibility. You are responsible
for providing and maintaining the communications equipment (including
personal computers and modems) and telephone or alternative services
required for accessing and using the web site or related services, and
for all communications service fees and charges incurred by you in accessing
our web site or related services.
43. Limitations, Restrictions and Termination of Services
You are authorized to use materials which are made available by optionsXpress
for your own needs only, and you are not authorized to resell access
to any such materials or to make copies of any such materials for sale
or use to and by others without the expressed written permission of
a duly authorized officer of optionsXpress. You will not delete copyright
or other intellectual property rights notices from printouts of electronically
accessed materials.
Monitoring and Recording Telephone Conversations and E-mail, Credit
Investigation. For our mutual protection and as a tool to correct misunderstandings,
you understand, agree and authorize us, at our discretion, and without
further prior notice to you, to monitor and record any or all telephone
conversations between you and us and between you and any of our employees
or agents and to monitor your electronic communications conducted with
us. You authorize us, at our discretion, to make and obtain reports concerning
your identity, credit standing, legal and/or business conduct.
44. Liability for Costs of Collection and Arbitration
You agree to pay and shall be liable for the costs and expenses of collection
of a debit balance or any unpaid deficiency in your Account with us,
including, but not limited to, attorney's fees, court costs and any
other costs incurred or paid by us. This liability shall include fees
and expenses, including attorney's fees, for any arbitration brought
against you by us or brought against us by you where such arbitration
results in a finding in our favor.
45. Investor Education and Protection
Under the Public Disclosure Program, the FINRA provides certain information
regarding the disciplinary history of FINRA members and their associated
persons in response to written inquiries, electronic inquiries or telephone
inquiries via FINRA Regulation's toll-free telephone number, 1-800-289-9999.
Additional information may be obtained from the FINRA Regulation web
site at http://www.finra.org/.
An investor brochure describing the Public Disclosure Program is available
from optionsXpress.
46. Arbitration Provisions
You understand and agree to the following:
- Arbitration is final and binding on the parties.
- The parties are waiving their right to seek remedies in court,
including the right to a jury trial.
- Pre-arbitration discovery is generally more limited than
and different from court proceedings.
- The arbitrators' award is not required to include factual
findings or legal reasoning and any party's right to appeal or seek
modification of rulings by the arbitrators is strictly limited.
- The panel of arbitrators will typically include a minority
of arbitrators who were or are affiliated with the securities industry.
Agreement to Arbitrate Controversies
You agree that any and all controversies which may arise between
you and optionsXpress or any of our officers, directors, employees,
agents, subsidiaries or affiliates including but not limited
to those involving transactions of any kind made on your behalf
by, through or with optionsXpress, our officers, directors, employees,
agents, subsidiaries or affiliates and the construction, performance
or breach of this or any other agreement between you and us shall
be determined by arbitration conducted before the FINRA in accordance
with its arbitration rules then in force. You specifically agree,
however, as permitted by statute and/or regulation, to arbitrate
all such controversies before the FINRA in Chicago, Illinois.
You consent to jurisdiction by the FINRA where any claim
is initiated by us and against you. Judgment upon any award of
the arbitrators may be entered in any court, state or federal,
having jurisdiction thereof. No person shall bring a putative or
certified class action to arbitration, nor seek to enforce any
pre-dispute arbitration agreement against any person who has initiated
in court a putative class action; or who is a member of a putative
class who has not opted out of the class with respect to any claims
encompassed by the putative class action until: (i) the class certification
is denied; (ii) the class is decertified; or (iii) the customer
is excluded from the class by the court. Such forbearance to enforce
an agreement to arbitrate shall not constitute a waiver of any
rights under this agreement except to the extent stated herein.
If you are a foreign national, non-resident alien, or if
you do not reside in the United States, you affirmatively agree
to waive your right to file an action against us in any foreign
venue other than with the FINRA as set forth abo
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