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Non-Tech : Nasdaq Subscriber Agreement -- Ignore unavailable to you. Want to Upgrade?

To: Mama Bear who wrote (23)	4/20/2001 2:29:33 PM
From: canuck-l-head	Respond to of 52

I did, and they don't. Here's some Legal Mumbo Jumbo from my original WebBroker agreement with TDW: Item #2 in the WebBroker agreement is as follows: "2. SERVICES: All transactions made for your account will be subject to the rules governing the exchanges or markets and clearing houses (if any) where the orders are executed." (Item #2 goes on to talk about recording phone calls and Put/Call Options.) Unfortunately, this would require trades to actually take place ("executed" denotes something actually having taken place). And the agreement does not infer that I can be denied trades on other exchanges if I don't sign an agreement with the Nasdaq (for instance). Item #8 in the agreement tries to shrug responsibility on the part of TDW: "8. EXTRAORDINARY EVENTS: We will not be responsible for any loss howsoever caused, whether directly or indirectly, by government restrictions, by exchange or market rulings, by suspension of trading, wars, strikes, or by reason of any other fact which shall not have been caused by our action or that of any agent or employee of ours." BUT, I say, it isn't the actions of the Nasdaq which have directly or indirectly caused me to lose access to my WebBroker account, is the action of TD Waterhouse. The Nasdaq did not come into the offices of TDW and program their website to deny me access to my online account. Only TD Waterhouse did that at the request of the Nasdaq. They took personal responsibility to deny me access to online trades and discount fees. "Directly or indirectly" would normally mean that if the Nasdaq screws up, TD Waterhouse can't be held responsible. But, TD Waterhouse made the decision to deny me access to my online account, NOT the Nasdaq. The Nasdaq COULD NOT EVER under any circumstances come inbetween an agreement binding between me and anyone else. They are NOT mentioned in the TDW agreement as an influencing party. TDW has made it clear in their correspondence to me that their actions were at the request of the Nasdaq. They could have figured out a better way to address the Nasdaq's request, but they have not. If someone tells you to murder your sister "or else", you can still be held accountable if you actually DO IT. The personal responsibility isn't negated just because a third party told you to do something. Article #11 of the WebBroker agreement speaks to AMENDMENTS to the agreement. But it indicates that there has to be a written notice given to the account holder, and that the notice has to include an EFFECTIVE DATE. I have received no such notice. And the Nasdaq agreement on the TDW website has no effective date. "11. AMENDMENTS: This Agreement may be amended at any time by us if we give you notice in writing of the amendment. The first transaction in your account following notification of an amendment to this Agreement will be considered to be your acceptance of the amendment as of the effective date set out in the notice. This Agreement will continue in force until terminated by you as acknowledged in writing by our officer or until written notice of termination by us has been mailed to you." But the 'AGREEMENT' posted on the website is between the Nasdaq and the subscriber, NOT between TD Waterhouse and the subscriber. So, even if TD Waterhouse wanted to say that the notice posted on the website was my written notice to amend the agreement between TDW and I, it wouldn't hold water. It is interesting that the WebBroker agreement does not speak at all to Real Time Quotes, but they have made their decision to deny service on the basis of supplying Real Time Quotes. And finally, no proper legal agreement denies the right to amend the agreement. If I'm not happy with part of a legal agreement, I retain the right to amend it and have the parties agree to the amendment. Item #21 in the Nasdaq agreement says that the agreement can be amended as "provided herein". But the top of page 1 says, "Any attempt to modify this agreement, except by Nasdaq, is void." So, once you sign it, you are agreeing that only THEY can amend it. Utter crap. canuck-l-head

To: Mama Bear who wrote (23)	4/20/2001 2:43:08 PM
From: canuck-l-head	Read Replies (1) \| Respond to of 52

And one more thing: If TDW wanted to amend the WebBroker agreement to include the Nasdaq agreement, they would have had to supply a notice to the effect of: "Effective May 15th, 2001, if you don't sign the Nasdaq agreement, you won't have access to your online trading account." They would have to legally supply a copy of the Nasdaq agreement so that you could ponder it before the deadline. TDW told me, "But, we posted a notice on the website that there was a Nasdaq agreement forthcoming?!" Ah, but they didn't give me TIME to consider the agreement itself, they just posted it and simultaneously denied me access to my online account. One legally has to have time to CONSIDER the ramifications of an agreement. That's what "Under Duress" means. It means that you don't feel compelled to sign the agreement, you have the necessary time to ponder its ramifications to you. Even in marriage, the agreement can be easily nulled if the parties are under the influence of drugs or alcohol, or if the parties didn't have sufficient time to ponder getting married. A lot of agreements call it a "cooling off period". In addition, parties legally need time to seek a remedy to what might have an impact upon them. You can't be evicted from an apartment without notice, the Sherriff can't seize your assets without notice, and you can't be denied a service THAT YOU HAVE BEEN RECEIVING WITHOUT INTERRUPTION unless you are given notice. The exception to this might be where it can be proven that you were negligent in holding up your end of the bargain (say, if you had a margin account, TDW had "called" it, and you were refusing to pay up). Historical evidence can be used in court to show a "track record" of either good dealings or bad dealings. Customers of TDW legally need time to seek other services elsewhere before they are denied service. They can't just be CUT OFF. canuck-l-head