TD AMERITRADE API DEVELOPER PROGRAM AGREEMENT

Version 1.0, last updated January 9 2019

This TD Ameritrade API Developer Program Agreement (“Dev Agreement”) is a legally binding contract between you (“you”), and ThinkTech, Inc. (“ThinkTech”, “we”, “us”, or “our”), a wholly owned subsidiary of TD Ameritrade Holding Corporation and technology service provider affiliate of TD Ameritrade, Inc. and other financial firms owned by TD Ameritrade Holding Corporation (collectively, "TD Ameritrade"). You understand, acknowledge, and agree, that this Dev Agreement does not create a brokerage or other investment account with TD Ameritrade or otherwise make you a client of TD Ameritrade (a “Client”). If you are an existing TD Ameritrade Client, or you become a TD Ameritrade Client during the term of this Dev Agreement, the terms of your Client agreement with TD Ameritrade will cover all of your account and trading related matters and activities conducted in addition to and apart from this Dev Agreement. If there is a conflict between this Dev Agreement and your Client agreement, the Client agreement shall control.

PLEASE CAREFULLY READ THIS DEV AGREEMENT. This DEV Agreement governs your participation in the Program (AS DEFINED BELOW). BY ACCESSING OR USING ANY OF THE RESOURCES (AS DEFINED BELOW), OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS DEV AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS OF THIS DEV AGREEMENT, MEET THE QUALIFICATIONS STATED IN THIS DEV AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY THIS DEV AGREEMENT. IF YOU DO NOT AGREE TO THIS DEV AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS STATED IN THIS DEV AGREEMENT, TD AMERITRADE IS NOT WILLING TO PERMIT YOU TO PARTICIPATE IN THE PROGRAM AND YOU MAY NOT ACCESS OR USE ANY OF THE RESOURCES.

  1. PROGRAM OVERVIEW. We offer the TD Ameritrade API Developer Program (the “Program”) to provide third party software application developers participating in the Program (“Developers”) with the ability to design and develop software applications intended for operation with TD Ameritrade Platforms (defined in Section 4.1) (“Apps”).

    As part of the Program, we may make available certain resources for use by Developers in connection with their Apps, including the following:

    • . Application programming interfaces defined by us (each, an “API”);
    • . Tools, tests, files, code, and libraries in connection with the APIs (each, a “SDK”);
    • . Instructions, specifications, and other documentation and materials in connection with the APIs or SDKs (“Documentation”);
    • . Data, information, or other content provided to Developers through the API (“Data”), including Data related to the brokerage accounts of TD Ameritrade Clients (defined in Section 5.4.1) (“Account Data”), Data from third-party sources such as market data and news (“Third Party Data”), or Data created by TD Ameritrade (“TD Ameritrade Data”);
    • . Websites, portals, and other applications to access the APIs, SDKs, Documentation, or Data, or otherwise participate in the Program;

    and any other resources specified in this Dev Agreement or made available by us in connection with the Program (collectively, the “Resources”).

  2. TERM. This Dev Agreement is entered into as of the earlier of either notification from us that you may participate in the Program or the date you first access or use any portion of any Resources (the “Effective Date”) and will continue until terminated as set forth herein.
  3. PARTICIPATION IN THE PROGRAM; RELATIONSHIP OF THE PARTIES.
    1. At Our Discretion. Your right to participate as a Developer in the Program is at the sole discretion of us. We may refuse to allow you to Participate in the Program, modify, suspend, or cancel your participation in the Program or your access to any Resources, or modify, update, suspend, or discontinue (permanently or temporarily) any aspect of the Program or any Resources, at any time, in our sole discretion.
    2. Geographic Scope. Participation in the Program is available exclusively to United States residents. No other individuals or entities, including those residing in current OFAC prohibited countries, may participate in the Program.
    3. Non-Exclusive. This Dev Agreement is non-exclusive. Except as may be expressly prohibited in this Dev Agreement, each party is free to market its existing products and services and to develop and market additional products and services and to otherwise conduct its business, whether such business is now or in the future directly or indirectly competitive with the other party’s business, without restriction.
    4. Independent Contractors. The parties are independent contractors, and nothing in this Dev Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Dev Agreement will be construed to confer any third-party beneficiary rights on any non-party.
    5. Additional Terms. In addition to this Dev Agreement, you may be required to agree to additional terms and conditions with either us or other third parties before being given access to certain Resources (“Additional T&Cs”). In the event of a conflict between any Additional T&Cs and this Dev Agreement, the Additional T&Cs will control with respect to your access to and use of those Resources to which the Additional T&Cs pertain, and this Dev Agreement will control in all other respects.
    6. Not Creating a Client Account. You understand, acknowledge, and agree, that by participating in the Program you are not creating a brokerage or other investment account with us or otherwise becoming a Client. If you are an existing Client, or you become a Client during the term of this Dev Agreement, the terms of your Client agreement with TD Ameritrade will cover all account and trading related matters and activities conducted through your App in addition to and apart from this Dev Agreement. If there is a conflict between this Dev Agreement and your Client agreement, the Client agreement shall control.
    7. No Support. You are solely responsible for all support and maintenance relating to your App, whether requested or required by you or any third-party users of your Apps (each an “End User”). Unless we have entered into a separate support agreement with you, we are under no obligation to provide you or any End User with any support relating to your Apps, the Program, any Resources, or the TD Ameritrade Platform, however, we may provide support to you or directly to any End User if deemed necessary or appropriate by us.
  4. OWNERSHIP.
    1. TD Ameritrade Property. TD Ameritrade or our licensors retain all right, title, and interest, including all copyrights, trademarks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, and other intellectual property and proprietary rights throughout the world, in and to the following “TD Ameritrade Property”: (a) various trading and investing systems, platforms, applications, databases, software, and hardware, operated by and on behalf of TD Ameritrade (the “TD Ameritrade Platforms”); (b) all Resources made available to Developers through the Program; (c) all trademarks, service marks, domain names, slogans, logos, designs, icons, trade dress, and any other designations of source or brand identifiers associated with TD Ameritrade or any TD Ameritrade Platforms (collectively the “TD Ameritrade Marks”); and (d) any updates, upgrades, enhancements, modifications, alterations, improvements, translations, or derivative works of the items enumerated in (a)-(c). You are granted no rights or licenses in or to any TD Ameritrade Property, except for the rights expressly granted to you under this Dev Agreement, regardless of whether any portions of any TD Ameritrade Property are used in or in connection with any aspect of the Program, any Resources, or any of your Apps. You agree to and hereby assign to TD Ameritrade or our licensors any and all right, title, or interest, that you may acquire at any time or by any means in or to any TD Ameritrade Property. The goodwill that arises from use of the TD Ameritrade Property shall inure to the benefit of TD Ameritrade or our licensors.
    2. Conditions. As an express condition to your participation in the Program and the rights granted to you under this Dev Agreement, you will not and will not permit any End User or other third party to: (a) act inconsistently with our ownership of the TD Ameritrade Property; (b) claim adversely to us, or assist any third party in attempting to claim adversely to us, with regard to our ownership of the TD Ameritrade Property; (c) challenge the title of us to the TD Ameritrade Property; (d) oppose any registration or application to register any of the TD Ameritrade Marks or other TD Ameritrade Property; (e) register or attempt to register any trademarks, service marks, domain names, slogans, logos, designs, icons, trade dress, and other designations of source, or any other brand identifier, that incorporates in whole or in part or is confusingly similar to any TD Ameritrade Mark; or (f) challenge the validity of this Dev Agreement or any rights granted to us in this Dev Agreement. As further express conditions to your participation in the Program and the rights granted to you under this Dev Agreement, you will not and will not permit any End User or other third party to: (g) use or access the TD Ameritrade Property for any purpose except as expressly provided in this Dev Agreement; (h) modify, adapt, alter, translate, or create derivative works from the TD Ameritrade Property; (i) distribute, lend, loan, lease, license, sublicense, transfer, or make available the TD Ameritrade Property or any rights therein to any third party except as expressly provided by this Dev Agreement; (j) access or use the TD Ameritrade Property in any unlawful, illegal, or unauthorized manner; (k) access or use the TD Ameritrade Property in any manner that could damage, disable, overburden or impair the TD Ameritrade Platforms; (l) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the TD Ameritrade Property (except where source code is provided as part of the Resources); (m) circumvent or overcome (or attempt to circumvent or overcome) any security feature or other technological protection measures intended to restrict access to the TD Ameritrade Property or TD Ameritrade Platforms; (n) interfere in any manner with the operation of the TD Ameritrade Property or TD Ameritrade Platforms, or attempt to gain unauthorized access to the TD Ameritrade Property or TD Ameritrade Platforms; (o) use the TD Ameritrade Property to access or interface with any products, systems, applications, software, or hardware other than the TD Ameritrade Platforms; or (p) develop any software or other technology for accessing or using the TD Ameritrade Platforms in a way other than through the APIs; (q) use automated scripts or processes to collect information from or otherwise interact with the TD Ameritrade Platforms other than your Apps; or (r) alter, obscure or remove any notice, management information, or proprietary legend, contained in or on any TD Ameritrade Property.
    3. Your Apps. As between you and us, you will maintain ownership of your Apps, excluding any portion of any TD Ameritrade Property included in or accessed or used by or in connection with your Apps. Nothing in this Dev Agreement or any discussions or communications with us will be construed as an admission as to the originality, distinctiveness, novelty, concreteness, usefulness, or non-obviousness of your Apps or as to the availability or validity of any intellectual property rights in or to your Apps.
    4. Competing Apps. You understand, acknowledge, and agree, that we or our affiliates may have developed, be developing, or may develop or obtain, software, methods, processes, designs, systems, or other ideas or technologies that are similar to or compete with those in your Apps (“Competing Apps”). Similarly, other Developers who participate in the Program may have developed, be developing, or may develop or obtain, Competing Apps. Nothing in this Dev Agreement will be construed as a representation or agreement that TD Ameritrade or our affiliates, or any other Developer, has not or will not develop or obtain any Competing Apps. Nothing in this Dev Agreement grants you any right, title, or interest in or to any Competing Apps.
  5. RESOURCES.
    1. APIs and SDKs. During the term of this Dev Agreement, and provided that you remain in compliance with this Dev Agreement, we hereby grant you a limited, non-exclusive, non-transferrable, non-sub licensable right to access and use those APIs and SDKs made available to you by us solely to: (a) develop Apps; (b) enable your Apps to interface with the TD Ameritrade Platforms through the APIs as intended by us; (c) distribute your Apps to End Users; and (d) allow your End Users to use the Apps to access the functionality of the TD Ameritrade Platforms made available by us through the APIs. Except as expressly stated in this Section, we grant you no rights or licenses in or to the APIs or SDKs under this Dev Agreement, whether by implication, estoppel, or otherwise, and all rights in and to the APIs and SDK are and will remain the exclusive property of us and our affiliates.
    2. API Keys. You may be assigned keys or authentication tokens enabling your Apps to operate with certain APIs (“API Keys”). You will maintain all API Keys assigned to you as the Confidential Information (as defined below) of TD Ameritrade. All API Keys assigned to you are unique to you and are solely for your own use in connection with your participation in the Program. You may not provide any third party with access to any API Key. You are solely responsible for all use of your API Key. You will notify us immediately if your API Key is lost, stolen or otherwise compromised. You are responsible for all liabilities and damages incurred through the use of your API Key and any transactions completed through your API Key will be deemed to have been completed by you.
    3. Documentation. During the term of this Dev Agreement, and provided that you remain in compliance with this Dev Agreement, we hereby grant you a limited, non-exclusive, non-transferrable, non-sub licensable right to use the Documentation solely for your own internal purposes in connection with participation in the Program. You agree to comply with all applicable Documentation in your participation in the Program and you use of any Resources.
    4. Data. During the term of this Dev Agreement, and provided that you remain in compliance with this Dev Agreement, you may access and use Data, and may permit End Users to access and use Data, solely through the operation of your Apps. You will not, and will not allow any End User or other third party to, access or use (or attempt to access or use) the Data for any purpose except as expressly permitted herein. We will have no responsibility or liability to you for any Data or for any deletion, destruction, loss, or unavailability of any Data.
      1. Account Data. You may access, process, store, use, and disclose Account Data only for the express purpose of providing services to the TD Ameritrade Client to whom the Account Data relates, or in such manner as may be expressly agreed by the Client. You agree the disclosure of Account Data to any party except the Client without the Client’s express permission may result in the immediate termination of your access to Account Data by us. You agree you will not store authentication information, including password, PIN, or secret question answers, for any Client, except such authentication tokens passed by us to allow access to an account.
      2. Third Party Data. Access to Third Party Data may be subject to Additional T&Cs, and you agree to strictly adhere to such Additional T&Cs, whether such agreements are entered into between us or the third party on the one hand, or you or the End User on the other. Generally, such Additional T&Cs grant usage rights specifically and personally to each Client, and prohibit the sale, sharing, or re-use of Third Party Data.
      3. TD Ameritrade Data. You agree to use TD Ameritrade Data solely for purposes authorized under this Dev Agreement and for no other purpose. Nothing herein shall grant you any right, title or interest in or to any TD Ameritrade Data.
    5. Updates to Resources. We reserve the right to update or release new versions of any Resources at any time. You are required to obtain and use the most current version of all Resources, including each API and SDK, when released by us.
  6. DEVELOPER ACCOUNTS.
    1. DevAccounts. You will be required to establish and maintain a Developer account before being provided with access to certain Resources (“DevAccount”). Some of the information needed to create a DevAccount may include your first and last name, and email address. You agree that all information provided in connection with establishing your DevAccount will be accurate, truthful, and complete. You will provide us with prompt updates to any such information as necessary, and will maintain such information as accurate, truthful, and complete. Approval of your request to establish a DevAccount and your participation in the Program is at the sole discretion of us. Your DevAccount is solely for your own use in connection with your participation in the Program. The user identification and password for your DevAccount (the “DevID”) are personal in nature and may be used only by you to access your DevAccount. You may not and agree that you will not provide any third party with the right to access your DevAccount or DevID. You will notify us immediately if your DevID is lost, stolen or otherwise compromised. You are responsible for all use of your DevAccount and all liabilities and damages incurred through the use of your DevAccount. Any transactions completed through your DevAccount will be deemed to have been completed by you.
    2. Groups. Through your DevAccount, you may be provided with the ability to associate your DevAccount with accounts of other Developers to form groups (“Groups”). Groups can be created for corporate entities, trading clubs, or any other lawful purpose. If you ask other Developers to join a Group, you authorize us to enable those Developers to join the Group with you. Some of the information needed to create a Group may include the name, mailing address and phone number for the Group, and the names of each Developer associated with the Group. You agree that all information provided in connection with establishing or joining any Group will be accurate, truthful, and complete. You will provide us with prompt updates to any such information as necessary, and will maintain such information as accurate, truthful, and complete. It is your responsibility to decide which Groups (if any) to establish or join. By establishing a Group, you will be designated as the initial “Administrator” for that Group. The Administrator for a Group is responsible for the management of the Group, including addressing disputes between Group members, assigning authority levels to other Developers in the Group, and associating other Developers with the Group. All notices and communications from us relating to a Group will be provided to the current Administrator(s) for the Group. In the event of a dispute involving a Group, including without limitation the identity or authority of the Group’s Administrator(s), we reserve the right, at our sole discretion, to suspend the Group and/or the DevAccount of each Developer associated with the Group, until such disputes are resolved.
    3. Payment and Fees. Participation in the Program and access to or use of certain of the Resources may require the payment of fees. You are responsible for all payment of all Program fees, as well as any applicable taxes, fees, value-added surcharges, import and export duties, and other assessments or duties, levied or assessed against you or us by any governmental entity in connection with your participation in the Program or your use of or access to any Resources, including any use of your Apps. Any additional Program fees will be set forth in and subject to the terms of the Additional T&Cs pertaining to the related Program features or Resources. You agree to pay any such fees as specified in such Additional T&Cs.
    4. API Request Rate. All existing and new DevAccounts will be allowed a fixed number of API requests per second per DevAccount, excluding account and order related API requests (“API Request Rate”). You may contact us to request a modification to your DevAccount’s API Request Rate. We reserve the right at any time and in our sole discretion to modify the API Request Rate of any DevAccount or to create different API Request Rates or payment structures with any Developers, Groups, or any other Program participants.
  7. APP TESTING.
    1. Self-Testing. You will develop your Apps in compliance with the terms of this Dev Agreement, all Documentation, and any additional tests or instructions that may be provided by us from time to time (collectively “Requirements”) and will remain solely responsible for ensuring that each App remains in compliance with all Requirements. Prior to distributing or making any App available to any End Users (for any purpose), or allowing any End User to use any App, you will test your App to ensure that it operates properly with the TD Ameritrade Platforms through the APIs and complies with all applicable Requirements. You understand that testing may be done using simulated data, and the Requirements cannot perfectly simulate all real market conditions.
    2. TD Ameritrade Testing. Upon request by us at any time, you will submit a copy of your Apps to us for review and testing by us. You grant us all rights necessary for us to review and test each App for compliance with all applicable Requirements. We may, in our sole discretion, require you to suspend use and distribution of any App if we, in our sole discretion, reasonably determine or believe that the App fails to comply with any applicable Requirements. Following any such suspension, you may resubmit your App to us for review and testing at any time, provided that you may not use or distribute such App until we notify you that the App is in compliance with all applicable Requirements.
  8. FEEDBACK. You agree that any observations, comments, and other feedback regarding the use, operation and performance of the Program or Resources, including without limitation the TD Ameritrade Platforms, will be Confidential Information of us. We may use your feedback for any purpose, including incorporating feedback into the TD Ameritrade Platform or Resources or any other products or services, without notice, payment, or other obligation to you. Use of feedback will be at our sole discretion. In addition to feedback, we will also have the right to collect and analyze information and data regarding your use of the Program and Resources and to use that information and data for any legal purpose, and provided that such information and data does not directly identify you as the source thereof.
  9. AUDITS. You will maintain the most recent 18 months of records with respect to your participation in the Program and utilization of the Resources, including without limitation any TD Ameritrade Property. During the term of this Dev Agreement and for a 3 year period thereafter, We will have the right to audit and review relevant portions of those records and your manner of participation in the Program and utilization of any Resources, including without limitation any TD Ameritrade Property, in each case to confirm that the restrictions in this Dev Agreement have been observed. The costs of any such audit will be borne by us unless such audit reveals your breach of this Dev Agreement, in which case you will reimburse us for our costs and expenses in conducting such audit.
  10. CONFIDENTIALITY. For purposes of this Dev Agreement, “Confidential Information” means the API Keys, feedback (pursuant to Section 8 above), and any other information or Resources you may receive from us that are designated as confidential or a trade secret. You will maintain the secrecy of all Confidential Information. You will treat all Confidential Information with the same degree of care as you treat your own confidential information which, in no event, will be less than reasonable care. You may disclose Confidential Information only to your employees who have a need to know the Confidential Information for purposes of exercising the rights or obligation conferred to you under this Dev Agreement and who are bound by a legal obligation of confidentiality at least as protective of the Confidential Information as the terms of this Dev Agreement, but in no instance less than reasonable care. You will not otherwise disclose the Confidential Information without our prior written consent.
  11. CYBERSECURITY. You will not attempt to circumvent the security functionality of the API and SDK and will access TD Ameritrade Platforms only in accordance with the SDK, API, and Documentation provided. You agree to immediately update any App you develop to comply with security updates promulgated by us. We reserve the right to immediately terminate, in our sole discretion and without advance notice, the availability of the API and/or your access to the TD Ameritrade Platforms through the API for the purposes of protecting the security of our systems or Clients.
  12. PUBLICITY. You agree not to reference TD Ameritrade in advertising, publicity, or marketing materials, or in any way so as to suggest any affiliation, endorsement, sponsorship, partnership, or other relationship between you and us, except with our prior written permission, or as required by applicable law. There shall be no announcement or press release regarding this Dev Agreement, unless otherwise mutually agreed to in writing by the parties prior to such disclosure. Written consent of us may be provided only by the General Counsel of TD Ameritrade Holding Corporation or the Managing Director of Corporate Communications.
  13. BROKERAGE ACTIVITIES. You understand, acknowledge, and agree, that, as between us and you, TD Ameritrade shall be solely responsible for all brokerage activities for TD Ameritrade Clients, which includes the following: opening, approving, maintaining, administering, or closing third party customer brokerage accounts; soliciting, processing, or facilitating securities transactions relating to customer brokerage accounts; extending credit to any customer for the purpose of purchasing securities through, or carrying securities; answering client inquiries with respect to their TD Ameritrade accounts or transactions; accepting securities orders, selecting among broker-dealers or routing orders to markets for execution; handling funds or securities of TD Ameritrade Clients, or effecting clearance or settlement of TD Ameritrade Client securities trades or other securities transaction; resolving or attempting to resolve any problems, discrepancies or disputes involving TD Ameritrade Client accounts or related transactions; receiving compensation based on securities transactions or provision of investment advice; describing TD Ameritrade’s services, products, or benefits; or recommending or endorsing specific securities or investment strategies. Unless you are licensed as a registered broker-dealer, you agree that you will not engage in any brokerage activities.
  14. EXPORT CONTROLS. The Resources, including without limitation the TD Ameritrade Platforms and Data, may be subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required. You will indemnify and hold us and our affiliates harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to your breach of this Section.
  15. REPRESENTATIONS AND WARRANTIES. You represent, warrant, and covenant to us that: (a) you will maintain all rights, power, and authority necessary to enter into this Dev Agreement, grant all rights, and perform all obligations under this Dev Agreement; (b) you will not violate, and will not cause us to violate, any federal, state, or local laws, rules, or regulations or the rights of any third party, including without limitation intellectual property rights; (c) except as set forth herein, you will obtain all rights, licenses, permits, and other approvals required for your participation in the Program and all use of or access to the Resources; and (d) you have obtained and will maintain appropriate explicit permissions from the Client to whom any Account Data relates to receive, process, use, and share any Account Data. You further represent, warrant, and covenant to us that you will develop, implement, and maintain (and, if applicable, will require that all employees and subcontractors develop, implement and maintain) necessary and appropriate policies, procedures, programs and other security and integrity measures in accordance with the Documentation and terms of this Dev Agreement. Without limiting the foregoing, you represent, warrant, and covenant to us that you will implement and maintain not less than reasonable and appropriate technical, administrative, and physical safeguards to protect your Apps and your access to all Resources.
  16. DISCLAIMERS. THE PROGRAM AND ALL RESOURCES ARE PROVIDED AS-IS AND AS-AVAILABLE WITHOUT ANY WARRANTY, REPRESENTATION OR GUARANTEE OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, WHETHER NOW KNOWN OR HEREINAFTER ENACTED. TD AMERITRADE EXPRESS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES REGARDING THE PROGRAM AND ALL RESOURCES, INCLUDING ANY WARRANTY, REPRESENTATION OR GUARANTEE OF QUALITY, ACCURACY, CORRECTNESS, RELIABILITY, AVAILABILITY, TIMELINESS, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE, OR ANY WARRANTY, REPRESENTATION OR GUARANTEE AGAINST INTERFERENCE WITH YOUR USE OR ENJOYMENT. WE ARE NOT RESPONSIBLE FOR ANY KIND OF TECHNICAL OR OTHER MALFUNCTION RELATED TO USE OF THE RESOURCES, OR FOR ANY OUTAGES, DELAY, OR FAILURE TO PERFORM. THERE IS NO GUARANTEE THAT YOU WILL BE ABLE TO ACCESS ANY RESOURCES WHENEVER AND WHEREVER YOU WANT, OR THAT YOUR USE OF THE RESOURCES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. THERE IS NO GUARANTEE THAT DATA TRANSMITTED THROUGH THE RESOURCES WILL NOT BE LOST, corrupted or damaged. There may be extended periods of time when you cannot access the Resources. The Resources may not meet your requirements.
  17. Without limiting the foregoing, you acknowledge and agree that the Resources are not intended or suitable for use in situations or environments where errors, delays, failures, or inaccuracies in the transmission or storage of data or information could lead to death, personal injury, or financial, physical, emotional, property or environmental harm, and you agree not to use the Resources for any purpose that may result in such death, injury or harm.

    You are solely responsible for ensuring that your Apps operate as intended, and that your Apps and all sales, marketing, and technical materials related to the Apps comply with this DEV Agreement and all applicable laws, rules, and regulations, including all applicable laws, rules, and regulations related to securities, broker-dealers, investment advisers, export control, data security, data privacy, advertising, and intellectual property. WE HAVE no obligation to modify any Resources in any way to accommodate your Apps or business.

  18. INDEMNIFICATION. You will indemnify, defend and hold harmless us, our affiliates, and each of our respective officers, directors, employees, contractors, and agents, from and against, and will pay all costs, damages, liabilities, and expenses (including reasonable attorneys’ fees) incurred by or awarded against us or any of our affiliates based on or related to any claim, suit, or proceeding, arising out of or relating to: (a) your participation in the Program; (b) your use of or access to any Resources, including without limitation any Data or TD Ameritrade Property; (c) your Apps or any access to or use thereof by any End User or other third party; (d) your breach of any provision of this Dev Agreement; (e) any claims by a TD Ameritrade Client or End User that your use of Account Data violates privacy or data security rights granted to such Client or End User by any applicable law; (f) any other claims by a TD Ameritrade Client or End User, other than due to our gross negligence or willful misconduct; or (g) any claim by a third party that your App infringes or otherwise violates the intellectual property rights of such third party. We will notify you of any claim for which we seek indemnification, allow you to control the defense of the claim, and reasonably cooperate with you in the defense and any related settlement negotiations at your cost and expense. In addition to any defense provided by you, we may, at our expense, retain our own counsel and participate in such defense (and any settlement). You will not enter into any judgment or settlement that purports to bind us without our express written authorization. If you do not promptly assume our defense against any claim upon receiving notice of the claim, we reserve the right to undertake our own defense at your expense.
  19. LIMITATION OF LIABILITY. IN NO EVENT WILL TD AMERITRADE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF THIS DEV AGREEMENT, THE PROGRAM, THE PLATFORM, OR ANY RESOURCES, INCLUDING ANY LOST, CORRUPTED OR ALTERED DATA OR INFORMATION, LOSS OF USE OF DATA OR INFORMATION, RECOVERY OF DATA OR INFORMATION, OR LOSS OR INTERRUPTION OF BUSINESS OR revenue, EVEN IF TD AMERITRADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THE maximum cumulative LIABILITY OF TD AMERITRADE RELATING TO THIS DEV AGREEMENT, THE PROGRAM, OR ANY RESOURCES, will under no circumstances EXCEED One Thousand U.S. Dollars ($1,000.00). IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, TD AMERITRADE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
  20. PRODUCT TAKEDOWN.
    1. Removal by You. You may remove your App from the Program at any time for any reason at your discretion, but you agree to comply with this Dev Agreement for any App distributed prior to removal. Removing your App from the Program does not: (a) affect the license rights of End Users who have previously purchased or downloaded your App; (b) remove your App from any devices; or (c) change your obligation to deliver or support Apps or services that have been previously purchased or downloaded by End Users. If you remove your app from the Program due to a Legal Takedown and an End User purchased such App within a year before the date of removal, at our request, you agree to refund to the End User all amounts paid by such End User for such App. For purposes of this section, “Legal Takedown” means receipt of: (a) an allegation of infringement, or actual infringement, of any third party intellectual property or other proprietary or personal right; (b) an allegation of, or actual violation of, data privacy or data security laws or regulations; or (c) an allegation or determination that the App does not comply with applicable law or regulation.
    2. Removal by TD Ameritrade. We do not undertake an obligation to monitor the Apps or their content. We may reject, remove, suspend, or reclassify any App from the Program at any time and without prior notice if we become aware of or determine in our sole discretion that an App or any portion thereof violates any applicable law or regulation, violates this Dev Agreement or any Documentation, contains elements that could cause material harm to End User devices or TD Ameritrade Property, or may otherwise create material liability for or have an adverse impact on us.
  21. TERMINATION.
    1. For Convenience. We may terminate this Dev Agreement at any time for any reason or no reason immediately upon notice to you. You may terminate this Dev Agreement at any time by visiting the “My Profile” page to terminate and delete your DevAccount.
    2. Effects of Termination. Upon any termination of this Dev Agreement, all rights and licenses granted to you under this Dev Agreement will immediately cease and you will promptly: (a) cease all use of all Resources; (b) reconfigure and/or reprogram your Apps to remove use of all Resources and disable interoperability and connectivity to the API; (c) erase or destroy all copies of the Resources in your possession or control; and (d) wind down the provision of services through your Apps in an expeditious and equitable manner, minimizing disruption in services to your End Users. Upon any termination of this Dev Agreement, you will promptly return to us or, at the request of us, delete, destroy, or expunge, any Confidential Information in your possession or control, including all copies thereof. Upon our written request, you will certify that you are in compliance with the requirements of this Section. The following sections will survive termination of this Dev Agreement for any reason: 4, 9-13, 15-19, 22-23.
  22. NOTICES. We may provide notices hereunder by electronic mail transmission to the email address on file for you or through notice sent to your Dev Account, either of which will be deemed effective upon sending by us. You may contact us at our email, telephone, or other contact information as provided in the Resources, which we may update from time to time.
  23. DISPUTES.
    1. Executive Management. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Dev Agreement, including the formation, validity, binding effect, interpretation, performance, breach, or termination of this Dev Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Dev Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section, except for claims relating to the intellectual property rights of us. All disputes shall initially be referred jointly to the parties’ respective project managers or other representative designated by each party. If the project managers or other designated representative(s) are unable to resolve the dispute within seven (7) business days after referral of the matter to them, the parties shall submit the dispute to a senior executive from each party for resolution. The parties are not required to proceed in accordance with the dispute resolution procedures in this Section prior to furnishing notice of default and/or notice of termination pursuant to this Agreement.
    2. Binding Arbitration and Jury Trial Waiver. Any dispute with respect to this Dev Agreement which is not resolved within ten (10) days after referral to the parties’ senior executives in accordance with Subsection 22.1 above, shall at any time thereafter at the initiation of either party, be submitted to arbitration which shall be the exclusive means for resolving any such disputes. Such arbitration shall be conducted by JAMS in accordance with its Arbitration Rules and Procedures then in effect. The arbitration shall be administered by the Chicago, Illinois office of JAMS and the hearing shall be held in the City of Omaha, Nebraska. The arbitrators will be selected from a panel of retired judges, will have familiarity with dispute resolution in the applicable industry and will not have a relationship of any sort with either party. Any costs associated with the arbitration shall be borne by the non-prevailing party. All decisions of the arbitrators shall be binding on both parties. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY AND IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge, without the use of a jury, sitting in a court of competent jurisdiction. This binding arbitration and jury trial waiver provision shall survive termination of this Dev Agreement. Nothing in this Dev Agreement will prevent either party from (i) applying for injunctive relief in any court of competent jurisdiction or (ii) proceeding before any administrative agency having jurisdiction over the matter, including but not limited to the United States Patent and Trademark Office.
  24. CHOICE OF LAW; VENUE. This Dev Agreement and its interpretation, as well as any Arbitration, will be governed by the laws of the State of Nebraska without giving effect to principles of conflict of laws. You acknowledge and agree that the courts within Omaha, Nebraska will have sole and exclusive jurisdiction over any issues regarding this Dev Agreement, including any action to enforce the binding arbitration provision above. You irrevocably submit to the personal jurisdiction of such courts.
  25. ASSIGNMENT. You may not assign, transfer or delegate this Dev Agreement or any of your rights or obligations under this Dev Agreement, in whole or in part, whether by operation of law or otherwise, to any third party without the prior written consent of us. We may assign this Dev Agreement with or without notice to you. Any assignment in violation of the foregoing will be null and void, and will be considered a breach of this Dev Agreement.
  26. AMENDMENTS. We may modify the terms of this Dev Agreement at any time. All such modifications will be effective 30 days after we make the modifications available on the Program website or through other notice to you. Unless you delete your DevAccount or discontinue use of any Resources during such 30 day period, you will be deemed to have accepted and agreed to those modifications. Except for the foregoing, any amendment or waiver of any provision of this Dev Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
  27. MISCELLANEOUS. This Dev Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior oral or written agreements or understandings between the parties as to the subject matter of this Dev Agreement. The failure of either party to insist upon a strict performance of or to seek remedy of any one of the terms of this Dev Agreement or to exercise any right, remedy, or election set forth herein or permitted by law shall not constitute nor be construed as a waiver or relinquishment for the future enforcement of such term, condition, right, remedy or election, but such items shall continue and remain in force and effect. In no event will we be liable for any of your responsibilities or obligations hereunder (or for your failure to fulfill such obligations) even if we are aware of such failure. If any provision of this Dev Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Dev Agreement will continue in full force and effect. We will not be held responsible for failure or delay in the performance of any obligation under this Dev Agreement if such failure or delay is beyond its reasonable control. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” The parties expressly waive any applications of the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of this Dev Agreement.