Terms & Conditions of Use
Dated as of September 5, 2023
1. TERMS - GENERAL
Please read the Terms as it contains important information regarding the use of this App. By accessing the App, you accept and agree to be bound by, and comply with, the Terms. The Terms are to be read in conjunction with any terms, conditions or disclaimers provided in the App. The Terms contain important information and warnings regarding the risks associated with trading various financial instruments. If you access and use the App, you accept and agree to be bound by and comply with the Terms. If you do not accept the Terms, then do not use the App.
This App has been issued for and on behalf of customers of Morgan Stanley Smith Barney LLC (“MSSB”) and its affiliated companies (together, the “Company”). The information contained herein is not to be construed as an offer to sell or the solicitation of an offer to buy any financial instruments, where the term “financial instruments” generally refer to tradeable monetary contracts between parties including, but not limited to stocks, bonds, options, futures, and options on futures.
The information contained in this App has been obtained from sources believed to be reliable but is not necessarily all-inclusive and is not guaranteed as to accuracy. The risk of trading futures and options can be substantial and each investor must consider whether this is an appropriate investment for him/her. Past performance is not necessarily indicative of future results. Persons acting on any information contained in this App are responsible for their own actions.
The services provided by the Company may not be available in all jurisdictions. It is possible that the Company may be prevented from opening and maintaining an account for you based on your country of residence. If in doubt, please contact an account representative.
Any special rules for the use of other items provided on the App may be included elsewhere within the App and are incorporated into these Terms by reference. If you are a customer of the Company, you may have additional levels of access to the App. Your relationship with the Company is governed by these Terms, as well as additional agreements or disclosures that the Company requests that you execute, including, but not limited to, the E*TRADE from Morgan Stanley Client Agreement for Self-Directed Accounts (each a “Customer Agreement”) and other relevant disclosures.
2. CHANGES TO TERMS
The Company reserves the right to change the Terms or any material on this App at any time. Any such change will become effective immediately upon publication of the Terms, and your continued access or use of the App means that you agree to the revised Terms. You agree to review the Terms each time you access this App.
3. APP CONTENT
The App may include or make available (1) account positions, balances, transactions, history; (2) general news and information, commentary, research reports and data concerning the financial markets, securities and other subjects; (3) market data such as quotations for securities transactions and/or last sale information for completed securities transactions reported in accordance with federal securities regulations; (4) financial and investment interactive tools, such as alerts or calculators, coaching sessions; (5) access to blogs, wikis, online webinars, conferences, telecasts, podcasts and other public forums; (6) art work, graphics, photographs, images, screen shots, text, music, digitally downloadable files, video clips, trademarks, logos, product and character names or slogans; (7) tax preparation, bill payment and account management tools; and (8) other materials or information (collectively, “Content”). Some of the Content is supplied by companies that are not affiliated with the Company (“Information Providers”).
The Company does not prepare, edit, or endorse Content from Information Providers. The Company does not guarantee its accuracy, timeliness, completeness or usefulness, and is not responsible or liable for any content, advertising, products, or other materials on or available from third party applications. Use of the Content from Information Providers is at your own risk. The Company and/or the Information Providers may discontinue or modify any category of Content at any time. You release and agree to indemnify and hold harmless the Company and the Information Providers for any loss or damages that may result.
The Company makes no claims that the Content is appropriate or may be downloaded outside of the United States of America. Access to the Content may not be legal by certain persons or in certain countries. If you access the App from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
Content posted on the App is published as of its stated date or, if no date is stated, the date of first posting. Neither the Company nor the Information Providers have, nor have undertaken, any duty to update any such information.
4. PRIVACY AND SECURITY
Use of the App involves the electronic transmission of data and information to and from your Mobile Device across wireless and other networks. The Company does not operate or control the wireless and other networks used to access your account, and the Company is not responsible or liable for the privacy and security of your wireless data and information transmissions. You are responsible for confirming the privacy and security practices of the networks you use and to only use a reputable wireless service provider or a secure (not open) WiFi access point which is operated by a person or entity you have reason to trust.
You are responsible for maintaining the security of your Mobile Device from unauthorized access. You are responsible for notifying the Company of any actual or attempted unauthorized access of your Mobile Device or account and cooperating with any investigation by the Company into such access or attempt.
5. USE RESTRICTIONS
Content is legally protected, including without limitation, by federal and state copyright laws. Title to the Content remains with the Company and/or the Information Providers. Any use of the Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
The Company authorizes you to view and download the Content solely for your own lawful, personal, non-commercial use. Any such download or use of the Content shall retain copyright and proprietary rights notices which are contained in the Content. Except as stated herein, none of the Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written permission of the Company or its licensors. The use of the Content on any other website, application or in a networked computer environment for any purpose other than expressly stated is prohibited. All rights not expressly granted herein are reserved to the Company and its licensors. If you violate any of these Terms, your permission to use the Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
You may not “mirror” any Content contained in the App or any other server. You may not use the App for any purpose that is unlawful or prohibited by these Terms. You may not use the App in any manner that could damage, disable, overburden, or impair the App, or interfere with any other party’s use and enjoyment of the App. You may not attempt to gain unauthorized access to the App through hacking, password mining, or any other means. The Company reserves the right, in its sole discretion, to terminate your access to the App, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
6. THIRD PARTY OR EXTERNAL WEBSITES OR RESOURCES
The App may include links to third party or external websites or resources over which the Company has no control. These links are provided solely as a convenience to users and should not be construed as an endorsement by the Company of content on those third party or external websites or resources. Your access and use of such websites or resources is solely at your own risk. The Company makes no representations or warranties with respect to the content, ownership, or legality of any such linked third party website.
7. BROKERAGE AND COMMODITY FUTURES SERVICES
The Company provides self-directed investors with brokerage and futures services. The Company does not provide investment, tax or legal advice.
You are solely responsible for evaluating the merits and risks associated with the use of any Content on the App before making any investment or other decision based on such Content. To the maximum extent allowed by law, you agree not to hold the Company or the Information Providers liable for any possible claim for damages arising from any decision you make based on information made available to you through the App. The App shall not be considered a solicitation to any person in any jurisdiction where such solicitation would be illegal.
Due to the nature of mobile technology, you should be aware of the following risks related to the App and mobile phone trading:
The App may not allow the same functionality, access to information and services which are available when not using a Mobile Device.
Due to the nature of Mobile Devices, the Company does not warrant that the operation of the App will be uninterrupted or entirely error-free. For example, due to service connectivity or internet connection difficulties endemic with mobile applications the service may, from time to time, be subject to delay, error or failure, with results that include, but are not limited to, the following:
· an inability for you to place orders;
· the services delivering inaccurate information including price and/or quote information;
· delay in receipt of information by the Company from your Mobile Device or from the Company to your Mobile Device;
· a failure of your Mobile Device to receive any messages from the Company; or
· you erroneously believing that you have placed an order when the Company’s records show that the Company has not accepted an order from you.
You agree that you will not attempt to hold the Company liable for any damages related to any of the above issues or any other related issues.
It is possible that a wireless connection or function may not be available when using the App or may be interrupted, or that a feature can be disabled, when attempting to conduct a financial transaction. Should this happen, review your transaction status to verify the status of the attempted transaction when you return to an area with wireless coverage or have access to a computer, or contact a representative by telephone.
9. RISKS OF FUTURES TRADING
Futures and options transactions are intended for sophisticated investors and are complex, carry a high degree of risk, and are not suitable for all investors. For more information, please read the Characteristics and Risks of Standardized Options and the Risk Disclosure Statement for Futures and Options prior to applying for an account.
Please select the following link to view E*TRADE FUTURES LLC DISCLOSURE DOCUMENTS AND OTHER FINANCIAL INFORMATION.
10. MARKET DATA
If market data is provided through the App, you shall use such market data only in the manner it is presented through the App and will not download, extract, redistribute, use or permit any third party to access or use such market data in any other system, service or for any other reason without the Company’s prior written consent, which may be withheld in the Company’s sole discretion. The receipt of market data may be contingent upon your execution of such other third party agreements provided by exchanges and/or the Information Providers, as may be required to receive various forms of market data that will be provided through the App. The Company and Information Providers are not responsible or liable if any such data or information is inaccurate or incomplete in any respect.
Any price quotes may be delayed twenty (20) minutes or longer, according to the rules and regulations applicable to exchanges and the Information Providers. Neither the Company nor the Information Providers make any representations, warranties or other guarantees as to the accuracy or timeliness of any price quotes. Neither the Company nor the Information Providers make any representations, warranties or other guarantees as to the present or future value or suitability of any sale, trade or other transaction involving any particular security or any other investment.
11. YOUR ACCOUNT
If you use the App, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account or password. The Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
12. USER CONTENT
Access to blogs, wikis, online conferences, telecasts, podcasts, or other forums (“Forums”) may be provided by the App. All communications or other materials made at or through the Forums are public (“User Content”). Neither the Company nor the Information Providers have any obligation to screen, review, approve or endorse any User Content obtained through the Forums. Reliance on the User Content obtained through the Forums is at your own risk. By displaying, publishing, or otherwise posting any User Content on or through the App, you hereby grant to the Company a perpetual, irrevocable, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, create derivative works, reproduce, distribute, sublicense, and otherwise exploit, in whole or in part, such User Content without the requirement to make payment to you or to any third party or the need to seek any third party permission.
You represent and warrant that you own the User Content submitted, displayed, published or posted by you on the App and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and the Company’s use of the content, does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You consent to, and the Company reserves the right to, (a) record and/or retain the dialogue, User Content, or data exchanged on the App; (b) investigate an allegation that User Content does not comply with these Terms and determine in its sole discretion to remove or request the removal of the Communication; (c) remove User Content which is abusive, illegal, disruptive, or outdated, or that otherwise fails to comply with these Terms; (d) terminate a user’s access to any or all parts of the App upon any breach of these Terms or the law; (e) monitor, edit, or disclose any User Content; or (f) edit or delete any User Content posted on the App, regardless of whether such User Content violates these Terms.
13. FORUM RESTRICTIONS
You will not access or otherwise use the Forums in any unlawful manner, for any unlawful purpose or in violation of these Terms, which includes but is not limited to the following:
· You will not post any User Content that does not comply with these Terms;
· You will not upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, hateful, racist, pornographic, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise obscene, threatening, objectionable, or inappropriate as determined by the Company;
· You will not harm minors in any way;
· You will not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
· You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any material;
· You will not upload, post or otherwise transmit any material that you do not have a right under any law or under contractual or fiduciary relationships, including without limitation, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements;
· You will not upload, post or otherwise transmit any material that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
· You will not harvest or otherwise collect information about others, including email addresses, without their consent;
· You will not post the same note more than once (i.e., “spamming”);
· You will not intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission; the U.S. Commodity Futures Trading Commission; self-regulatory organizations such as the Financial Industry Regulatory Authority, Inc., and the National Futures Association; any rules of any national or other securities exchange; and any regulations having the force of law;
· You will not post business solicitations or promotions;
· You will not use the Forums as a forwarding application to another website; and
· You will not upload, post or otherwise transmit any material that contains viruses or other malicious technology designed to interrupt, destroy or limit the functionality.
You are solely responsible for your User Content, the consequences of making User Content, and your reliance on any User Content. The Company is not responsible for the consequences of any User Content, or for screening or monitoring User Content made to the App by users. If notified of User Content allegedly in violation of these Terms, the Company may investigate and determine in at its sole discretion whether to remove such User Content.
Any ideas, suggestions, enhancement requests, feedback, recommendations, know-how, or concepts (“Feedback”) that are offered or communicated to the Company through the App or otherwise are the property of the Company, and may be treated by the Company as non-confidential information. The Company shall have the unrestricted right to use and disclose such Feedback for any purpose without compensation or obligation to any party.
15. DISCLAIMERS OF WARRANTIES AND LIABILITY
A. THE COMPANY, ITS EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSOCIATES DO NOT REPRESENT OR IMPLY ANY PERFORMANCE LEVEL, RESULTS OR GUARANTEES IN RELATION TO THE OPERATION OF THE APP AND THE COMPANY DOES NOT MAKE ANY CLAIM THAT THE USE OF THE APP WILL RESULT IN A PARTICULAR PROFIT OR PREVENT ANY LOSS FOR A USER.
B. THE COMPANY AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSOCIATES DO NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR ANALYSIS ON THIS APP. THERE MAY BE OMISSIONS OR INACCURACIES ON THIS APP. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THIS APP AND MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATION OR WARRANTY REGARDING THE INFORMATION CONTAINED HEREIN. THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, YOUR USE OF THIS APP OR ANY INFORMATION DISPLAYED ON THIS APP.
C. IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY PARTY FOR ANY DAMAGES INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, OR LOSS OF SAVINGS), OR ANY OTHER DAMAGES ARISING, IN ANY WAY, OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO UTILIZE THIS APP, EVEN IF THE COMPANY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSIONS OF INCIDENTAL AND CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU, BUT SHALL APPLY, IN ANY EVENT, TO THE MAXIMUM EXTENT POSSIBLE.
D. YOUR ABILITY TO ACCESS THIS APP MAY, FROM TIME TO TIME, BE DELAYED AND/OR INTERRUPTED DUE TO SCHEDULED AND/OR UNSCHEDULED CAUSES. THIS APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND. NO WARRANTY IS MADE THAT THE FUNCTIONS OR SERVICES PERFORMED BY THE USER IN CONNECTION WITH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. THE USER EXPRESSLY AGREES THAT USE OF THIS APP IS AT ITS OWN RISK.THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT COULD RESULT FROM INTERCEPTION BY THIRD PARTIES OF ANY INFORMATION MADE AVAILABLE TO YOU, OR PROVIDED TO THE COMPANY BY YOU VIA THIS APP.
E. THE COMPANY DOES NOT WARRANT OR GUARANTEE THAT ANY INFORMATION AVAILABLE ON OR THROUGH THIS APP WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING, CONTAMINATING OR DESTRUCTIVE PROPERTIES. IT IS THE SOLE RESPONSIBILITY OF THE USER TO ISOLATE SOFTWARE AND INFORMATION, EXECUTE ANTI-CONTAMINATION SOFTWARE, AND OTHERWISE TAKE STEPS SO THAT SOFTWARE OR INFORMATION, IF CONTAMINATED OR INFECTED, WILL NOT DAMAGE USER'S INFORMATION OR SYSTEM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR ANY OF THEIR THIRD PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY TORT, CONTRACT OR ANY OTHER LIABILITY ARISING IN CONNECTION WITH THE USE OF THE APP, OR RELIANCE ON ANY INFORMATION OR SERVICES PROVIDED BY THE COMPANY, INCLUDING, BUT NOT LIMITED TO, ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMIATION, LOST PROFITS, TRADING LOSSES AND/OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF THE USE OF THE APP, EVEN IF THE COMPANY, ITS AFFILIATES, OR THEIR THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NEITHER THE COMPANY, ITS AFFILIATES, NOR ANY OF THEIR THIRD PARTY SERVICE PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH SUCH ENTITY DOES NOT HAVE DIRECT CONTROL, INCLUDING BUT NOT LIMITED TO FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES AND STRIKES OR OTHER LABOR PROBLEMS.
17. ALLOCATION OF RISK
In addition to the limitations on liability contained elsewhere in these Terms and the Customer Agreement, you will not hold the Company, its affiliates, their respective partners, officers, employees, agents, licensors, distributors, and suppliers and/or Information Providers liable in any way for (a) any inaccuracy of, error or delay in, or omission of the Content, or (b) any loss or damage arising from or occasioned by i) any error or delay in the transmission of such Content, ii) interruption in any such Content due either to any negligent act or omission by any party 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 iii) to any other cause beyond the reasonable control of the Company, its affiliates, their respective partners, officers, employees agents, licensors, distributors, and suppliers and/or App and Information Provider, or iv) non-performance.
You will indemnify and hold harmless the Company, its affiliates, their respective partners, officers, employees agents, licensors, distributors, and suppliers and the Information Providers from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys’ fees, arising from or relating to your (i) violation of these Terms; or (ii) access and/or use of, or interaction with the App and/or Content (including, without limitation, the Forums); or (iii) any act, error, or omission of your use of an account or any user of your account, in connection therewith.
18. INTELLECTUAL PROPERTY PROTECTION
The materials and technology provided on the App are protected by law, including, without limitation, United States copyright laws and is owned by the Company or used under license from the owner of the respective intellectual property rights. Technology on the App or otherwise in the Company’s system is protected by patents owned by the Company, its subsidiaries or affiliates.
The foregoing may not, except under written license, be copied, reproduced, transmitted, displayed, performed, distributed, rented, sublicensed, altered, stored for subsequent use or otherwise used in whole or in part in any manner without the Company's prior written consent, except to the extent that such use is expressly authorized under the United States copyright laws. The Company's trademarks, trade names, logos, images, and, service marks used on this App are the property of the Company and may not be used without prior written permission from the Company and then only with proper acknowledgment.
19. VOICE RECOGNITION SERVICE DISCLOSURE
As part of using the voice recognition service (the “Service”), the Company may collect and use Speech Data, as defined below, to tune, enhance and improve the speech recognition and other components of the Service, and other services and products. “Speech Data” means the audio files, associated transcriptions and log files provided by you or generated in connection with the Service.
Please note that when you access the App and use the Service, the Company may collect Speech Data as part of the Service and that Speech Data shall be used by the Company or third parties acting under the direction of the Company, pursuant to confidentiality agreements, to tune, enhance and improve the speech recognition and other components of the Service, and other products and services. The Company will not use the information elements of Speech Data for any purpose except as set forth above. However, the Company may disclose Speech Data as required by law, to cooperate with government agencies or regulators, self-regulatory bodies and law enforcement officials, to protect against actual or potential fraud or unauthorized transactions and to protect the security of the Company’s records and systems.
20. APPLICABLE LAWS
These Terms are governed in accordance with the laws of the State of New York, United States of America, without regard to its conflict of law provisions. You hereby expressly consent and submit to the exclusive jurisdiction of local and federal courts of competent jurisdiction in New York for the adjudication or disposition of any claim, action or dispute arising out of these Terms. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
21. NOTICE AND TAKE DOWN PROCEDURES
If you believe any content accessible on or from the App infringes your copyright, you may request removal of those materials (or access to them) from the App by contacting the Company at 10 S. Riverside Plaza, 5th Floor, Chicago, IL, 60606, Attention: Brokerage Legal, and providing the following information: (a) identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work; (b) identification of the content that you believe to be infringing and its location; (c) your name, address, telephone number, and email address; (d) a statement that you have a good faith belief that the complained of use of the work is not authorized by the copyright owner, its agent, or the law; (e) a statement that the information you have supplied is accurate, and indicating that “under penalty of perjury”, you are the copyright owner or authorized representative; and (f) a signature or the electronic equivalent from the copyright holder or authorized representative.
If you have any questions, please call 800-387-2331 anytime.