API Developer License Agreement

By accessing the Morgan Stanley Smith Barney LLC ("Company") live API environment and its contents you and, if applicable, the company you represent (collectively, "Developer") accept and agree to be bound by the following terms and conditions (the "Agreement") as of the date of your online acknowledgment ("Effective Date"). This Agreement supplements the E*TRADE from Morgan Stanley Client Agreement for Self-Directed Accounts and any other agreements entered into by Developer and Company.

RECITALS

WHEREAS, the Company has developed an application program interface to permit its customers to use their internal proprietary software tools in managing their accounts with E*TRADE from Morgan Stanley (“E*TRADE”), and/or to access certain software tools of third-party developers; and

WHEREAS, Developer is (i) a customer of the Company developing or who has developed proprietary software tool(s) that it would like to use to manage his/her personal accounts with E*TRADE ("Individual Use Developer"), or (ii) developing or has developed a software application which it would like to make available to customers of the Company ("Vendor Use Developer"), (collectively "Developer(s)", and therefore, Developer desires to receive a limited license to use the API (as defined below) and receive Market Data from the Company for use with Developer’s application.

WHEREAS, the Company is willing to grant such license in accordance with the terms and conditions of this Agreement. If there is a conflict between this Agreement and any previous agreement that contained terms of use related to the Company’s API, including but not limited to, an API License Agreement, User Agreement, or Developer Agreement entered into between the Parties, this Agreement shall be controlling.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties covenant and agree as follows:

1.0 Definitions. Capitalized terms used herein shall have the meanings set forth below or as otherwise defined in this Agreement.

1.1 "API" means the Company’s proprietary Application Program Interface, including subsequent version names, and Updates (as defined below) made available to Developer through which Developer may (i) access certain information, including information delivered to API by Company and/or a Third Party Provider, (ii) communicate certain information and instructions to E*TRADE, and (iii) perform and receive access to other features and functionality made available to Developer by a Third-Party Provider.

1.2 "Application" means the proprietary software application developed by Developer for their own personal use (Individual Use Developer) or to make available to customers of the Company (Vendor Use Developer).

1.3 "API code" means the client source code for the API that is made available to Developer.

1.4 "Confidential Information" means any and all technical and non-technical information, which may include without limitation: (a) invention disclosures and patent applications, (b) trade secrets, and (c) proprietary and confidential information, ideas, samples, specifications, plans, designs, forecasts, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services, including without limitation API documentation, information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, and marketing plans and information regarding third parties, and (d) any information a reasonable person should have known under the circumstances was considered confidential or proprietary.

1.5 "Derivative Work" means any work that is based upon the API or the Documentation, such as a revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which such a preexisting work may be recast, transformed, or adapted, and that, if prepared without authorization by the owner of the preexisting work, would constitute a copyright infringement.

1.6 "Documentation" means any materials created by the Company and provided to Developer in connection with the API, including the call functions used with the API.

1.7 "Developer" collectively means an individual or a legal entity exercising rights under this Agreement. A "Developer" is further sub-categorized as an "Individual Use Developer" or a "Vendor Use Developer". An "Individual Use Developer" means a Developer exercising the rights under this Agreement for their own personal use and is tied to a single Developer ID. A "Vendor Use Developer" means a Developer exercising the rights under this Agreement for multiple users and for Applications that may be more widely distributed.

1.8 "E*TRADE Applications" means the Internet-based software applications that the Company makes available to its customers through the E*TRADE System.

1.9 "E*TRADE System" means the E*TRADE from Morgan Stanley trading platform, an Internet-based direct access trading platform that provides the Company’s customers the ability to enter and manage securities purchases and sales and related accounts.

1.10 "Market Data" shall mean all data distributed by the Company regarding bids, offers, and market transactions and all information based on such data.

1.11 "Marks" means trademarks, service marks, logos and other branding of a party.

1.12 "Non-Commercial Use" means using API Code by itself as is, or in connection with or for the development of applications, programs, or other works that (a) interface with the E*TRADE System, and (b) allow Developer to access Developer’s account information, access market data, perform analytics, enter orders, or perform any other transactions or functions all in connection with Developer’s individual, personal accounts with E*TRADE and not for any other purpose.

1.13 "Personal Information" means Developer’s personally identifiable information (including, without limitation, Developer name, login password, financial information, trade data, and other financial information) and all other personal information exchanged between the Company and Developer through the use of API.

1.14 "Third-Party Provider(s)" means the third-party (non-Company affiliated) entity that makes available features and functions through the use of API.

1.15 "End User(s)" means customers of the Company who obtain a license through a Vendor Use Developer to use the Developer Application.

1.16 "End User Account Log-on" means the account name and password established by each End User for each of its, his or her accounts on the E*TRADE System.

1.17 "End User Data" means certain account and securities purchase, sale and management data received by the E*TRADE System from its customers.

1.18 "Update" means any modifications and enhancements, or new versions of the API or the Documentation made by the Company and provided to Developer during the term of this Agreement.

2.0 Ownership and Grant of License.

2.1 Ownership: Other than as expressly provided for in this Agreement, the parties expressly understand and agree that as between the Parties, all right, title, ownership, and interest in and to the API and Documentation and any other material furnished to Developer under this Agreement remain the sole and exclusive property of the Company. Developer shall neither derive nor assert any title or interest in or to such items except for the license granted under this Agreement. The Company retains all ownership rights to any concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, utilities and routines contained in the API and the Documentation. Further, the Company is and shall remain the owner of all right, title and interest in and to any and all data and information (including customer data and information) that may be accessed on the Company’s servers. Such data and information shall be treated as Confidential Information of the Company in accordance with the provisions herein. Developer’s use of API will not confer any title, ownership interest or intellectual property rights that otherwise belongs to the Company.

2.2 Grant of License: Subject to the terms and conditions of this Agreement, the Company hereby grants to Developer and Developer hereby accepts, the nonexclusive, nontransferable, revocable, royalty free license to install, modify, and use the API Code for any allowed purpose, including for an Individual Use Developer’s personal, non-commercial use or a Vendor Use Developer’s multiple End User use case. Further, the Company hereby grants Developer network access to the Company’s testing servers solely for the purpose of testing the Company’s API and developing integration of the Developer’s software with the Company’s systems and data.

2.3 Restrictions on Developer Use. Developer will not use the API Code for any purpose that violates any law or regulation, any underlying Market Data Agreement, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, contractual rights, or in any manner inconsistent with the Company’s terms of use, privacy policy or this Agreement. Further, Developer will not publish, disseminate, or redistribute the API Code to any Third Party. Developer will not assign, transfer, grant access or use of, disclose or otherwise provide, in any form whatsoever, any content of the API to any third party or display data electronically, unless agreed by the Company. Developer will not modify, translate, reverse engineer, decompile or disassemble API. Developer shall at all times conduct themselves with all due skill, care and diligence and in accordance with all applicable laws, enactments, orders, regulations, other similar instruments and any reasonable directions or instructions issued by the Company to Developer.

3.0 Third-Party Notices.

3.1 Market Data Feeds. The Company uses market data feeds received from third parties for quotes provided on our website and via the API. The Company cannot guarantee that those market data feeds will be identical to all other market data feeds. Furthermore, Third-Party Providers may make available to you market data feeds independent of market data feeds provided by the Company. Developer should be aware that from time to time there may be discrepancies between the market data presented by us and information provided by Third-Party Providers due to a variety of reasons, including the time to update and transmit such data to a website and latency caused by Third-Party Provider’s and/or your local environment (computer set up, connection speed, etc.). The Company is not responsible for the accuracy of Market Data transmitted via API or made available by Third-Party Providers. DEVELOPER ALSO ACKNOWLEDGES AND AGREES THAT USE OF API AS A MEANS OF DISSEMINATING INFORMATION INCLUDING MARKET DATA OR ANY OTHER LICENSED OR COPYRIGHTED INFORMATION TO THIRD PARTIES IS STRICTLY PROHIBITED WITHOUT PRIOR WRITTEN APPROVAL OF THE COMPANY AND YOU SHALL NOT ENGAGE IN SUCH PRACTICES. Developer is responsible for adhering to all terms and conditions of the market data agreements Developer accepted to open an account with E*TRADE and shall be liable for payment of any fees levied by exchanges, index vendors or other third parties for the market data Developer accesses via the Company’s facilities, whether such fees are billed directly to Developer or indirectly via the Company. Furthermore, the Company may, at any time and for any reason, without notice to you, terminate or otherwise restrict your access to any or all market data feeds provided by third parties through the Company.

3.2 End User Data. Nothing in this Agreement shall be construed as requiring the Company to provide any End User Account Log On information or End User Data to Developer. Developer understands that it is required to obtain the legally valid permission of the End User prior to accessing or storing any End User Data. Developer will comply with all applicable laws and regulations governing privacy, its privacy policy and the privacy policy of the Company in accessing or storing End User Data.

3.3 Third-Party Provider Sites. Material provided on API may have been produced by independent providers unaffiliated with us. To the extent that API or Third-Party Providers express opinions or make recommendations, you understand that such opinions and recommendations are expressed by Third-Party Provider and are not the opinions or recommendations of the Company or any of its subsidiaries, independent contractors, agents, or employees. The existence of API and our consent to any connectivity between API and our technology, website or trading platform(s) does not constitute a recommendation by the Company to (i) invest in any security or utilize any investment strategy or (ii) does not constitute a representation, warranty or other guarantee by us as to the present or future value or suitability of any sale, trade or other transaction involving any particular security or any other investments. The existence of any and all information, tools and services provided by Third-Party Provider and/or by API shall not constitute our endorsement of Third-Party Provider and/or API.

3.4 Access to Developer Personal Information by Developer Third-Party Providers. Through Developer’s use of API, Developer may be providing Third-Party Providers with access to Developer’s Account(s) and Personal Information. By consenting to the use of API, Developer acknowledges that the security, policies, procedures and systems of Third-Party Providers may or may not be less stringent and secure than the Company’s policies, procedures and systems. Developer agrees that use of the API shall be subject to the policies, procedures of this Agreement. Developer acknowledges that the Company is not a party to any agreement by or between Developer and any Third-Party Provider. Developer acknowledges that the API may deliver Personal Information to the Company and the Company is authorized to receive and store that Personal Information consistent with the Company’s then in effect policies and procedures, and, furthermore, Developer agrees that API may request Personal Information stored by the Company, and consents to the Company’s disclosure of such Information and Account data to API.

4.0 Obligations.

4.1 Delivery of Access to API/ Developer Key: Upon request of the Company, Developer will complete an API questionnaire which will assist in identifying Developer as either an Individual User Developer or a Vendor Use Developer. Upon completion of the API questionnaire, Developer will be provided a consumer key ("Consumer Key"), which is unique to the Application, by the Company as follows: (1) Developer must specify (via the API questionnaire process) whether an Individual Use Key or a Vendor Use Key is appropriate based upon their intended usage, (2) the Company shall deliver the Consumer Key to Developer by providing such Consumer Key to Developer in a message sent electronically through Developer’s account with the Company (the "Developer Account"), following Developer’s request (made electronically through the Developer Account) for the Consumer Key from the Company. Developer agrees to keep the Consumer Key confidential, and not to disclose it to, or share it with any Third-Party.

4.2 Support Services. The Company is not obligated to provide any support services, error corrections or technical support for the API or Application under this Agreement. All such services will be the responsibility of Developer. The Company, at its sole discretion, may make available to Developer system engineers to work with Developer’s system engineers in developing, testing and maintaining the Application, as mutually agreed by the parties.

4.3 Development Responsibilities. Developer hereby assumes all responsibility for and accepts all risks associated with: (1) the selection of the API to achieve Developer’s intended purposes; (2) the use of the API and Documentation pursuant to this Agreement; (3) any Derivative Works made by Developer, and (4) the results obtained from use of the API or any Derivative Works by Developer.

4.4 Application Testing. Developer shall test the Application for use with the E*TRADE System. The Company reserves the right to perform, but is not obligated to perform, acceptance testing of the Application, and Developer will provide reasonable cooperation with the Company should it desire to test the functions. Such testing by the Company shall not create any obligations on the part of the Company with respect to the Application, and Developer will not disclose in any manner to any Third-Party that the Company has performed testing of the Application, or the results of any such testing undertaken by the Company. The Developer will not make the functions of the Application available to End Users until the Application performs in accordance with the specifications and documentation for such Application and the functions have been tested and approved by Developer.

4.5 Vendor Use Developer Obligations related to End Users. For the sake of clarity this Section 4.5 applies only to Vendor Use Developers. Prior to making the functions of an Application available to an End User, the Vendor Use Developer will obtain an acknowledgment from End User in written form containing clear language that the Company is not responsible for the functionality of an Application or for results obtained from using an Application, that the Company is not endorsing the Developer Application and makes no representations or warranties to its performance, and that the Company is indemnified and held harmless from any liabilities that arise as a result of End User’s use of the Developer Application (the "End User Acknowledgment"). Developer will retain records evidencing End Users’ Acknowledgment during the term of this Agreement and for a period of not less than five years from the date of termination of this Agreement and will make such records available to the Company upon the Company’s request.

4.6 Updates to the API and E*TRADE System. The Company may release subsequent versions of the API and may make changes to the E*TRADE System and Developer will be responsible for obtaining and using the most recent version of the API. New versions may not be compatible with previous implementations. Updates will be subject to the same terms and conditions of this Agreement as relate to the API. The Company agrees to provide notice of proposed changes to the API or the E*TRADE System and technical information to the Developer as soon as commercially practicable. All such information shall be treated as Confidential Information of the Company. Nothing in this Agreement shall be construed as creating an obligation on the part of the Company to make or refrain from making any changes to the E*TRADE System.

4.7 Cost and Expenses. Unless otherwise agreed in writing by the parties, each party is responsible for all costs and expenses incurred by it in performing its obligations under this Agreement. The Company is not responsible for costs and expenses incurred by Developer as a result of any change in the API or in the E*TRADE System. Neither party is obligated under this Agreement to share any revenues, pay any royalties, or otherwise pay commissions to the other party.

5.0 Branding/Marks.

5.1 Ownership of Marks.

(a) Developer acknowledges the validity and exclusive ownership of all right, title, and interest in and to the the Company’s websites and its contents including, without limitation, (i) all information and materials contained within that website; and (ii) the Company’s Marks which are displayed or otherwise used in connection with that website. During or after the term of this Agreement, Developer shall not, in any way, contest or help others to contest such ownership or the validity of any registrations or rights of the Company now owned or subsequently obtained relating to the Company’s websites or its content. All usage of the Company’s Marks by Developer and any goodwill established thereby shall inure to the exclusive benefit of the Company.

(b) The Company acknowledges the validity and exclusive ownership of all right, title, and interest in and to the Developer’s Marks for the Application. During or after the term of this Agreement, the Company shall not, in any way, contest or help others to contest such ownership or the validity of any registrations or rights of Developer in their Marks for the Application. All usage of the Developer’s Marks by the Company and any goodwill established thereby shall inure to the exclusive benefit of Developer.

(c) This Agreement does not contemplate or permit the use of the Marks to create any co-branded website, co-branded software application, or composite Mark which includes the Marks of each party.

5.2 Application Branding. Developer may not use any of the Company’s Marks in any of the screens displayed within the Application, other than as required or allowed by this Agreement.

6.0 Confidentiality.

6.1 API and Documentation. Developer agrees that the API and Documentation contain Confidential Information of the Company and embody trade secrets developed by the Company at substantial cost and expense. Developer shall hold the API and Documentation in confidence for the Company. Developer shall employ precautions to protect the API and Documentation from unauthorized copying, use, or disclosure at least as protective as the precautions it uses to protect its own proprietary computer programs or sensitive business information, but in no event less than reasonable secrecy precautions. Developer shall allow access to the API and Documentation only to employees who are performing services for Developer related to the purposes of this Agreement, who have a need to know the information contained in the API and Documentation, and upon whom Developer has imposed a legal duty to protect the API and Documentation from unauthorized copying, use, or disclosure. Developer agrees to use its best efforts to prevent, prosecute, and enjoin any actual or threatened unauthorized copying, use, or disclosure of the API and Documentation.

6.2 Confidential Information. During the term of this Agreement and at all times thereafter, the parties will not, except as permitted by the terms of this Agreement, disclose or use, either for itself or for the benefit of any Third-Party (whether in competition with the Company or otherwise), any Confidential Information which a party (the "Disclosing Party") provides or makes available to the other party (the "Recipient"). It shall not be a violation of this Agreement for Recipient to make any disclosure of Confidential Information which is required by law, or pursuant to court order or subpoena. In such event, Recipient will (a) disclose only such Confidential Information which is required to be disclosed, (b) give Disclosing Party reasonable prior notice of such required disclosure to allow Disclosing Party to contest such disclosure if it so chooses, and (c) cooperate with Disclosing Party’s efforts to protect such information.

6.3 Unauthorized Use. Developer shall prevent, prosecute, and enjoin any unauthorized copying, distribution, reverse engineering, and reverse compiling of the API, through appropriate restrictive contracts entered into by its employees, and any consultants having access thereto through Developer, and shall pursue appropriate actions to enforce such protection provisions. Developer will be responsible for any unauthorized use of the API or Documentation by its employees or consultants.

7.0 Warranties and Limitation of Liability.

7.1 Developer Representations and Warranties. Developer represents and warrants that:

(a) Developer Application is free from material defects, performs substantially in accordance with its specifications, and does not contain any malicious code that (i) is designed to disrupt, disable, harm, or otherwise impede in any manner, the operation of the Application or the E*TRADE System; (ii) is designed to impair in any way the operation of the E*TRADE System based on the elapsing of a period of time, or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices); (iii) would permit Developer or any Third-Party to access the E*TRADE System (e.g., traps, access codes, or trap door devices); or (iv) would attempt to access or access End User Data without authorization from such End User;

(b) this Agreement has been duly executed by Developer and constitutes the legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms; and

(c) An Individual Use Developer warrants they are the sole owner of the Developer Account for personal, non-commercial use. A Vender Use Developer warrants that they are the sole owner of the Developer Account and that any multiple use access that they allow will adhere to all terms and conditions of this Agreement and that any access is only allowed to End Users or Users with their own E*TRADE account.

7.2 E*TRADE System Order Acceptance. There may be latency between the time an order (or other information) is submitted from API and the time the order is received by the E*TRADE System. The E*TRADE Complete Protection Guarantee does not apply. Orders created and submitted through API are not vetted until they are received by the E*TRADE System. E*TRADE reserves the right to reject any order submitted through the API.

7.3 Disclaimer of Warranty. The Company makes no warranty that all errors have been or can be eliminated from the API or Documentation, and the Company shall not be liable or responsible for losses of any kind resulting from the use of the API or Documentation by Developer or End Users. The API is provided on an "as is" and "as available" basis. The Company’s API is used at Developer’s own risk. TO THE FULLEST EXTENT ALLOWED BY LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE API AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY, ACCURACY AND NON-INFRINGEMENT. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT CONCERNING THE AVAILABILITY OF THE E*TRADE SYSTEM, OR ANY PARTICULAR CUSTOMER DATA.

7.4 Limitation of Liability. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY LOSS, DAMAGE, LIABILITY OR EXPENSE INCURRED OR SUFFERED, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR THE USE OF THE API, THE E*TRADE SYSTEM, OR THE COMPANY’S MARKS EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USE OF THESE MATERIALS IS AT DEVELOPER’S SOLE RISK. THE EXCLUSION OF DAMAGES UNDER THIS PARAGRAPH IS INDEPENDENT OF THE EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) NEGLIGENCE, OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IN NO EVENT WILL THE COMPANY’S LIABILITY TO DEVELOPER ARISING UNDER THIS AGREEMENT EXCEED THE FEES IT RECEIVES UNDER THIS AGREEMENT.

8.0 Indemnity.

Developer agrees to indemnify and hold harmless the Company and its parent, subsidiaries, affiliates, officers, agents, employees, and suppliers, from and against any claims, suits, or demands, liability or expense (including reasonable attorney’s fees) arising from or in any way related to Developer’s use of the API, any claims that arise as a result of use of the Application, errors in the Application, any loss or unauthorized use or disclosure of End User Data once such Subscriber Data are transmitted to, or obtained by the Application, or any miscommunication of any End User information transmitted via the Application.

9.0 Termination; Effect of Expiration or Termination.

9.1 Suspension or Termination by the Company. The Company may change, suspend or discontinue the API and suspend or immediately terminate the use of this Agreement and the API at any time, with or without notice, for any reason or no reason. In addition, this Agreement and the rights granted hereunder will terminate automatically: (a) if Developer fails to complete required annual attestation confirming API Use; (b) if Developer is no longer a customer of the Company; or (c) the Developer Key is not actively utilized.

9.2 Effect of Termination/ Return of Materials. Upon termination or expiration of this Agreement, the rights and licenses herein granted shall terminate. Each party will discontinue any use of the other party’s Marks, and discontinue any promotions or advertising relating to the Functions. Developer shall immediately deliver to the Company or destroy all copies of the API and Documentation, and any copies of the Application containing the API. Developer shall warrant in writing, upon request of the Company, that no copies of any such material have been retained or are within the control of Developer. The only exception to the foregoing shall be one archival copy of items deemed by Developer to be necessary in enforcement of Developer’s rights, which archival copy shall be sealed and placed in the hands of a bonded, independent custodian under a legally enforceable obligation of confidentiality and nonuse, for use only by Developer in the assertion of rights and defenses by Developer.

10.0 Assignment.

10.1 Assignment. Developer may not assign this Agreement or the rights herein without the Company’s prior written approval. The Company may assign its rights/and or obligations under this Agreement in whole or in part to (a) an affiliate, or (b) an unrelated party in one or more locations in connection with the sale, transfer or other disposal by the Company or any of its affiliates of its business or operations that uses the API.

10.2 Void Assignment; Binding Effect. Any assignment in violation of this Agreement shall be void. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

11.0 General Terms.

11.1 Force Majeure. Neither party hereunder shall be liable to the other for its failure to perform hereunder caused by contingencies beyond its reasonable control, including, but not limited to, acts of God, fire, flood, wars, acts of terrorism, sabotage, strike, government actions and any other similar occurrence beyond the non-performing party’s reasonable control. Any party asserting its inability to perform any obligation hereunder for any such contingency shall promptly notify the other party of the existence of any such contingency and shall use its reasonably diligent efforts to recommence its performance of such obligation as soon as commercially practicable.

11.2 Independent Contractor. Each of the parties is an independent contractor in the performance of its obligations hereunder. No Third-Party, including any employee of any party or any of such party’s affiliates, shall have or acquire any rights by reason of this Agreement. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency or fiduciary relationship or a joint venture.

11.3 Notices. All notices, consents and other communications given under this Agreement shall be in writing and shall be deemed to have been duly given (a) five days after being deposited in any United States post office enclosed in a postage prepaid registered or certified mail envelope addressed to, or (b) when successfully transmitted by Secure Message on the E*TRADE System, through your account on etrade.com, provided that any notice shall be effective only on receipt. If via mail to the Company: E*TRADE from Morgan Stanley, Attn: Brokerage Legal Dept., PO Box 484, Jersey City, NJ 07303-0484. If to Developer: via Secure Message on the E*TRADE System, through your account on etrade.com.

11.4 Choice of Law. The Developer understands that this Agreement shall be deemed to have been made in the State of New York and will be construed, and the rights and liabilities of the parties determined, in accordance with the internal laws of the State of New York.

11.5 Jurisdiction, Venue, and Waiver of Jury Trial. Developer and the Company agree and hereby make an affirmative election to have any and all controversies or claims arising out of or relating to this Agreement settled by arbitration. In the event the Developer and the Company elect not to pursue resolution of any such dispute or controversy by arbitration, ANY CONTROVERSY BETWEEN THE DEVELOPER AND THE COMPANY ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE MANNER OF RESOLUTION SHALL BE ARBITRATED, LITIGATED (TRIED IN A COURT OF LAW), OR OTHERWISE RESOLVED BY A TRIBUNAL LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK. IN ADDITION, THE DEVELOPER HEREBY WAIVES TRIAL BY JURY IN SUCH ACTION OR PROCEEDING. No legal or administrative action arising out of this Agreement with respect to any controversy or claim may be commenced by anyone more than one year after any claim arises.

11.6 Arbitration.

(a) By using the API, Developer agrees to resolve by binding arbitration any controversy that may arise between the Parties, including but not limited to the use of the API, any services related thereto, and enforcement of this Agreement. Such arbitration will be conducted in accordance with the rules then in effect of FINRA, unless the rules of another self-regulatory organization to which the Company is subject mandate arbitration before that organization. The Developer makes this arbitration agreement on behalf of itself and the Developers heirs, administrators, representatives, executors, successors and assigns and together with all other persons claiming a legal or beneficial interest in the Agreement. Any award of the arbitrator or a majority of the arbitrators will be final and binding, and judgment on such award may be entered in any court having jurisdiction.

(b) This arbitration provision will be enforced and interpreted exclusively in accordance with applicable federal laws of the United States, including the Federal Arbitration Act. Any costs, attorneys' fees or taxes involved in confirming or enforcing the award will be fully assessed against and paid by the party resisting the confirmation or enforcement of said award.

(c) Any dispute or claim involving a dollar amount in excess of $50,000 will be before a panel of at least three arbitrators.

(d) No person will 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) Developer is excluded from the class by the court.

(e) Such forbearance to enforce an agreement to arbitrate will not constitute a waiver of any rights under this Agreement except to the extent stated herein.

(f) If the Developer is not in the United States at the time a controversy arises between the Company and the Developer, the Developer agrees to the provisions described above and the following additional provisions:

i. The Developer agrees that any arbitration hearing will be held in New York, New York, unless otherwise agreed to between the Company and Developer or unless FINRA (or other self- regulatory organization administering the arbitration) designates another hearing location;

ii. The Developer agrees to the personal jurisdiction of the courts of the State of New York to interpret and enforce these arbitration provisions described in this Agreement; and

iii. All arbitrations will be held in the English language, unless otherwise agreed to by the parties.

11.7 Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

11.8 Amendment; Waiver. This Agreement contains the entire understanding and agreement between the parties hereto as to the subject matter of this Agreement. This Agreement may not be amended or modified by Developer. The Company may modify this Agreement from time to time without notice. The most current version of the Agreement will supersede all previous versions. By using the Company’s live API environment subsequent to publication of modifications to the Agreement, you agree to be bound to the full language of the most current Agreement, as revised and published. Your only recourse if you disagree with the terms and conditions, or changes to the Agreement, is to discontinue your use of the Company’s live API environment. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by the party against whom the waiver is to be effective. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

11.9 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.

11.10 Survival. The Parties’ obligations which by their nature would continue beyond the termination of this Agreement, including but not limited to Ownership and Grant of License, Warranties and Limitation of Liability, and Indemnity, shall survive the termination of this Agreement.