EXHIBIT 6.1
THIS AGREEMENT is made on 24 NOVEMBER 1997
BETWEEN:
(1) HONG KONG FUTURES EXCHANGE LIMITED whose registered office is situated
at 605-8 Asia Pacific Finance Tower, Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx,
Xxxx Xxxx ("HKFE"); and
(2) FINANCIAL TELECOM LIMITED whose registered office is situated at Xxxx
0000, Xxxxx Resources Xxxxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
("THE VENDOR")
WHEREAS:
(A) HKFE has available a high speed real time composite signal ( "THE
COMPOSITE SIGNAL") providing information in respect of contract prices
traded on the exchange operated by HKFE ("THE EXCHANGE").
(B) The Vendor wishes to receive the composite signal directly (or
indirectly through another information vendor) from HKFE for the
purpose of using, processing, or disseminating the information
contained in the composite signal through the Vendor's own or any other
information systems for reception by the persons who subscribe for such
information through the Vendor ("THE VENDOR'S SUBSCRIBERS").
IT IS AGREED AS FOLLOWS:-
1. TERM OF THE AGREEMENT
This Agreement shall take effect upon the date specified in the First Schedule
as the effective date ("THE EFFECTIVE DATE") and shall (subject to prior
termination by operation of law or in accordance with clause 9) continue until
terminated:
(1) by HKFE upon not less than 30 days written notice to the
Vendor in the event that HKFE's right to receive the composite
signal is terminated (or notice to terminate such right has
been given to HKFE);
(2) by either party upon not less than six months written notice
to the other to expire on the last day of a calendar month; or
(3) by the Vendor pursuant to clause 3.2 or 3.3.
1
2. THE COMPOSITE SIGNAL
2.1 HKFE will throughout the term of this Agreement, subject to clause 2.4,
make the composite signal available to the Vendor during the normal
trading hours of the Exchange on a non exclusive basis for the sole
purpose of entitling the Vendor to use, process or disseminate the
information contained therein through the Vendor's own or any other
information systems for reception by the Vendor's subscribers. The
Vendor has the right to receive the composite signal on the terms set
oat in this Agreement.
2.2 The composite signal will have the specifications which are set out in
the Second Schedule, which specifications HKFE may change on not less
than 30 days notice to the Vendor save that HKFE may make such change
on less than 30 days notice with the agreement of the Vendor, which
agreement the Vendor shall not unreasonably withhold. Where
modification of the Vendor's equipment is necessary to accommodate a
change to the specifications, the Vendor shall effect that modification
within the notice period.
2.3 HKFE reserves the right to, without notice, withdraw from the composite
signal the contract prices of any contract that ceases trading. In
addition, HKFE may upon reasonable notice and after consultation with
the Vendor, withdraw either temporarily or permanently the contract
prices of any contract if, in HKFE's reasonable opinion, the trading of
that contract is being carried on at such a reduced rate that making
the relevant contract prices available in the composite signal is no
longer justified. Subject to the foregoing, and subject to clause 2.4
the content of the composite signal will remain substantially the same
throughout the term of this Agreement.
2.4 HKFE shall not be liable for any failure to make the composite signal,
or any part thereof, available to the Vendor if such failure arises out
of causes beyond its control. Such causes include, but are not limited
to, computer malfunction, interruption of telecommunications facilities
and unavailability of energy supplies. The occurrence of any event
contemplated herein shall not affect the Vendor's obligations under
clause 3.
2.5 The Vendor may not sub-licence or otherwise assign the right to use,
process or disseminate the information contained in the composite
signal or otherwise make the composite signal available to any third
party save that the Vendor may sub-licence such right to its
subsidiaries, to its holding company, to another subsidiary of its
holding company and, subject to clause 2.7, to other third parties
approved in writing by HKFE. For the purposes of this clause 2.5, the
terms "holding company" and "subsidiary" have the meaning they have in
the Companies Ordinance (Cap. 32 of the Laws of Hong Kong).
2.6 The use, processing and dissemination by the Vendor of any additional
information contained in the composite signal relating to information
other than contract prices traded on the Exchange shall be subject to
the Vendor obtaining a licence to do so from HKFE or other relevant
party providing the additional information and to any other
restrictions which may from time to time be notified in writing by HKFE
to the Vendor.
2
2.7 Notwithstanding clause 2.1, the Vendor may make the composite signal
available to a third party other than one of the Vendor's subscribers
or for a purpose other than the Vendor's or the Vendor's subscribers
own use, provided that:
(1) the Vendor has notified HKFE that the third party wishes to
have the composite signal made available to that third party;
and
(2) the third party has entered into an agreement directly with
HKFE on substantially the same terms and conditions as this
Agreement.
3. FEES
3.1 Subject to any discounts which HKFE may from time to time determine,
the Vendor shall pay to HKFE the fees set out in the Third Schedule, as
revised from time to time in accordance with this clause 3 (together
"THE FEES").
3.2 If HKFE wishes to include in the composite signal information in
respect of contracts traded on the Exchange in addition to those set
out in the Fourth Schedule it shall give notice to the Vendor
specifying:
(1) the date on which such revised composite signal will be
available;
(2) the additional contracts to be made available; and
(3) the increased Fees (if any) to be payable in respect of the
revised composite signal.
HKFE shall give to the Vendor not less than 60 days notice of any
increase in the Fees payable in respect of the revised composite
signal. Upon receipt of such a notice from HKFE the Vendor may elect,
by notice in writing to HKFE (which notice must be received before the
day on which the revised composite signal becomes available) to
terminate this Agreement with effect from the day on which the revised
composite signal becomes available. If the Vendor does not so notify
the HKFE the Vendor shall be deemed to have agreed to accept the
revised composite signal at the Fees specified in HKFE's notice.
3.3 The Fees may be reviewed by HKFE at intervals of not less than six
months. HKFE shall give to the Vendor , not less than 60 days notice
before any revised Fees shall take effect. Such revised Fees shall take
effect on the date specified in the notice given by HKFE. Upon receipt
of such a notice from HKFE the Vendor may elect, by notice in writing
to HKFE (which notice must be received by HKFE before the day on which
such revised fees shall take effect) to terminate this Agreement with
effect from the last day of the calendar month preceding the calendar
month in which the revised Fees are to take effect. If the Vendor does
not so notify the HKFE, the Vendor shall be deemed to have agreed to
the revised Fees specified in HKFE's notice.
3
3.4 The Vendor shall be responsible for the payment of all costs and
expenses of installing, maintaining and operating its telephone lines
and other equipment used by the Vendor and necessary in order to enable
the Vendor to take the composite signal from HKFE's distribution unit
and the Vendor shall indemnify and keep indemnified HKFE upon demand
against all such costs and expenses.
3.5 The Vendor shall pay all Fees accrued during each calendar month by no
later than the last day of the next calendar month and each payment
shall be accompanied by a statement detailing:
(1) the amount paid in respect of the Standard Fee (as defined in
the Third Schedule);
(2) the amount paid in respect of the Back up line Fee (as defined
in the Third Schedule);
(3) the number of subscriptions by interactive workstations and
(where applicable) the number of pagers;
(4) the name of the Vendor's subscribers and the number of
declared subscriptions specified in any declaration by the
Vendor's subscribers under paragraph 3 of the Third Schedule;
and
(5) the amount paid in respect of the Subscription Fee (as defined
in the Third Schedule),
provided that if that last day is not a business day (being a
day on which banks in Hong Kong are open for business), then
the business day immediately preceding it.
4. WARRANTIES, INDEMNITIES AND INFORMATION
4.1 While HKFE will take all reasonable care in respect of the composite
signal, it gives the Vendor no covenants, representations or warranties
of any kind whatsoever (whether express or implied, statutory or
otherwise) relating thereto and accordingly accepts no responsibility
of any kind whatsoever (save in respect of its own wilful default) for
any claim, demand, damages, liabilities, losses and expenses suffered
by the Vendor by reason directly or indirectly of the supply of the
composite signal to the Vendor.
4.2 HKFE gives the Vendor no covenants, representations or warranties of
any kind whatsoever (whether express or implied, statutory or
otherwise) relating to the content of the composite signal or its
accuracy in respect of the contract prices traded on the Exchange and
accordingly accepts no responsibility of any kind whatsoever (save in
respect of its own wilful default) for any claim, demand, damages,
liabilities, losses and expenses suffered by the Vendor by reason of
any errors or inaccuracies in the composite signal.
4
4.3 The Vendor shall indemnify and keep indemnified HKFE upon demand from
all claims, demands, damages, liabilities, losses and expenses of HKFE
suffered directly or indirectly (save in respect of wilful default of
HKFE and save in respect of normal trading losses and expenses of HKFE
which are not incurred as a result of any default by the Vendor) by
reason of the use of the composite signal by the Vendor or the supply
of the composite signal to, or the use of the composite signal by, the
Vendor's subscribers.
4.4 The Vendor warrants to HKFE that all equipment used by the Vendor for
the purpose of utilising the composite signal made available by HKFE
is, and will at all times during the continuance of this Agreement be,
compatible with the equipment used by HKFE. The Vendor agrees to
indemnify and to keep indemnified HKFE upon demand against all costs,
damages, or expenses incurred by HKFE and arising from the
incompatibility of the Vendor's equipment except where such
incompatibility is due to an alteration in the composite signal by HKFE
and the Vendor has been unable to modify its equipment within the time
limit provided in clause 2.2 and such inability has been notified in
writing to HKFE.
4.5 The Vendor will, forthwith upon a request in writing by HKFE, provide
to HKFE such information within the Vendor's possession or under its
control as HKFE shall reasonably require as to the use made by the
Vendor of the composite signal. HKFE shall keep such information
confidential and shall not disclose the same except to the extent that
HKFE is required to do so by law or other regulatory authority or is
necessary in connection with legal proceedings.
5. VERIFICATION OF FEE PAYMENT
5.1 Upon receipt of reasonable notice from HKFE, the Vendor shall grant
HKFE and its auditors access during normal business hours to the
Vendor's accounting records which are relevant to the calculation and
payment of the Fees to review those records for the purposes of
determining whether the statements provided by the Vendor to HKFE
pursuant to clause 3.5 are complete and accurate and whether all Fees
have been paid by the Vendor.
5.2 If HKFE considers (in its absolute discretion) that there is an error
in any statements provided by the Vendor pursuant to clause 3.5 the
Vendor must immediately pay to HKFE any Fees which have not been paid
(together with interest calculated under clause 7) and, if required by
HKFE, must indemnify HKFE for the costs and expenses incurred by HKFE
and its auditors in connection with the relevant audit.
5.3 HKFE shall, and shall procure that its auditors shall, conduct any
review under this clause 5 in a manner which does not unreasonably
disrupt the Vendor's ordinary business operations and have regard to
the Vendor's reasonable security and confidentiality requirements.
5
6. COPYRIGHT
This Agreement shall not constitute an assignment of any copyright in
the composite signal but a licence granted by HKFE to the Vendor to
use, process and disseminate the information contained in the composite
signal in accordance with this Agreement.
7. LATE PAYMENT
If any payment due from the Vendor under this Agreement is not paid to
HKFE when due, the Vendor shall pay (both before and after judgment)
interest on all such overdue amounts from the date on which the same
became due until the date of payment thereof in full at the rate of 4%
over the prime rate from time to time of the Hong Kong and Shanghai
Banking Corporation Limited.
8. AGREEMENT PERSONAL TO THE VENDOR
8.1 This Agreement is personal to the Vendor who, subject to clause 2.5,
shall not without the previous written consent of HKFE assign,
transfer, sub-contract, delegate, mortgage, charge or otherwise dispose
of or purport to assign, transfer, sub-contract, delegate, mortgage
charge or otherwise dispose of this Agreement or its rights hereunder.
If the Vendor grants a sub-licence under clause 2.5, the Vendor shall
continue to be responsible to HKFE for compliance with the terms of
this Agreement by any such sub-licensee.
8.2 Where the Vendor is a body corporate, the Vendor shall notify HKFE in
writing of any material change in control of the Vendor.
9. TERMINATION
9.1 Either party may terminate this Agreement by giving notice in writing
to the other if the other party:
(a) commits any material breach of its obligations under this
Agreement and (if the breach is capable of remedy) fails to
remedy the breach to the reasonable satisfaction of the non
offending party within 30 days of receipt of notice in writing
served on it by the non offending party requiring it to make
good the breach; or
(b) goes into liquidation (except a bona fide voluntary
liquidation for the purpose of reconstruction or amalgamation)
or becomes unable to pay its debts, or commits an act of
bankruptcy or if a receiver is appointed of any of its assets
or if there are any similar proceedings arising from the other
party's inability to meet its financial obligations issued in
its jurisdiction of incorporation.
9.2 Any termination of this Agreement under this clause 9 or clause 1 shall
be without prejudice to the accrued rights of either party under this
Agreement.
6
10. NOTICES
Any notice given by one party to this Agreement to the other shall be
in writing and made by facsimile or letter addressed to the other party
at the address set out above (or such other address as may be notified
by either party to the other party from time to time). Any notice given
by letter shall (whether or not actually received) be deemed to have
been received in the case of delivery by hand, when delivered, or in
the case of delivery by post, upon the expiry of 48 hours after the
time of post addressed to the recipient at the address set out above or
such other address as may from time to time be notified by the parties
as their principal place of business for the time being. Any notice
given by either party to the other by facsimile shall be deemed to have
been given upon actual receipt.
11. WAIVER
Any waiver by one party to this Agreement of any breach by the other
party of any provision of this Agreement shall not have effect unless
such waiver is in writing and signed by an authorised representative of
the party waiving the breach and any such waiver shall be without
prejudice to that party's rights with respect to future breaches.
12. VARIATIONS
No variations or modification of any of the terms of this Agreement
shall be valid unless in writing and signed by or on behalf of the
parties.
13. FORCE MAJEURE
"FORCE MAJEURE" means, in relation to either party, any circumstances
beyond the reasonable control of that party including, without
limitation, any act of God, act or regulation of any governmental or
supra national authority, war or national emergency, accident,
epidemic, fire, riot, strike, lock out, or other form of industrial
action.
Neither of the parties to this Agreement shall have any liability
whatsoever or be in default for any delays or failures in performance
under this Agreement resulting from any occurrence of an event of Force
Majeure provided that this shall not apply to relieve the Vendor of any
payment obligation where the occurrence or event consists of non
payment or late payment by a Vendor's subscriber or otherwise consists
of or results in a shortage of funds. The occurrence or existence of
any event of Force Majeure shall be immediately notified by the party
affected thereby to the other. The affected party shall use all
reasonable endeavours to remedy as quickly as possible the effect of
any event of Force Majeure.
14. ENTIRE AGREEMENT AND SEVERANCE
14.1 This Agreement represents the entire understanding, and constitutes the
whole agreement, in relation to its subject matter and supersedes any
previous agreement between the parties with respect to the subject
matter and without limiting the generality of the foregoing, excludes
any warranty, condition or other undertaking implied at law or by
custom.
7
14.2 Each party confirms that, except as provided in this Agreement and
without prejudice to any liability for fraudulent misrepresentation, no
party has relied on any representation or warranty or undertaking which
is not contained in the Agreement or which was made by any other party
who is not a party to this Agreement and no party shall have any remedy
in respect of misrepresentation or untrue statement made by any other
party unless and to the extent that a claim lies under this Agreement.
14.3 In the event that any provision of this Agreement shall be void or
unenforceable by reason of any provision of applicable law, it shall be
deleted and the remaining provisions of this Agreement shall continue
in full force and effect and if necessary, be so amended as shall be
necessary to give effect to the spirit of this Agreement so far as
possible.
15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by, and construed in accordance with
Hong Kong law.
15.2 Each party irrevocably agrees for the benefit of the HKFE that the
Courts of Hong Kong shall have exclusive jurisdiction in relation to
any claim, dispute or difference concerning this Agreement and any
matter arising therefrom.
15.3 Each party irrevocably waives any right that it may have to object to
an action being brought in those Courts, to claim that the action has
been brought in an inconvenient forum, or to claim that those Courts do
not have jurisdiction.
15.4 The submission to the jurisdiction of the Courts of Hong Kong shall not
(and shall not be construed so as to) limit the right of the HKFE to
bring legal proceedings in any other court of competent jurisdiction
including without limitation the courts having jurisdiction by reason
of the Vendor's domicile. Legal proceedings by HKFE in any one or more
jurisdictions shall not preclude legal proceedings by it in any other
jurisdiction, whether by way of substantive action, ancillary relief,
enforcement or otherwise.
16. HEADINGS
The headings of the clauses of this Agreement being for convenience
only shall not affect the construction of this Agreement.
EXECUTED as an agreement.
SIGNED BY Xxxxx Xxxxxxx Xxxxx )
)
for and on behalf of )
)
HONG KONG FUTURES EXCHANGE LIMITED )
)
in the presence of:- Xxxxxxx Xxx )
)
)
SIGNED BY Xxxx Xxxx, Xxxxxxx Xxxx )
)
for and on behalf of )
)
FINANCIAL TELECOM LIMITED )
)
in the presence of:- Xxxxxx Xxxx )
8
THE FIRST SCHEDULE
EFFECTIVE DATE
The Effective Date is January 1, 1998
9
THE SECOND SCHEDULE
SPECIFICATIONS OF THE COMPOSITE SIGNAL
(AS PER ATTACHED)
10
THE THIRD SCHEDULE
FEES
1. FEES
For the purposes of, and subject to, this Agreement, the following Fees apply:
(1) A fee of HK$11,500 per month for receipt of the composite
signal relating to the contracts set out in the Fourth
Schedule ("STANDARD FEE"); and
(2) A fee of HK$3,000 per month for stand by back up facilities
("BACK UP LINE FEE"); and
(3) A fee of:
(a) HK$25 and HK$5 per month for every interactive
workstation and pager respectively which receives the
composite signal pursuant to this Agreement or
pursuant to any subscription arrangements between the
Vendor and its subscribers at least 7 times per
Exchange trading day;
(b) HK$5,000 per month if the Vendor broadcasts the
composite signal to its subscribers through
interactive workstations on a half an hour or more
delay basis; and
(c) such other amount determined by HKFE in respect of
information disseminated by the Vendor to its
subscribers other than through interactive
workstations or pagers,
(together the "SUBSCRIPTION FEE").
2. NEW SUBSCRIPTIONS
The Vendor must choose one of the following methods to calculate the
Subscription Fees payable in respect of a new subscription by the Vendor's
subscribers and must apply the chosen method consistently for all new
subscriptions, unless the Vendor obtains the consent of HKFE to use the other
method:
11
METHOD A
If:-
(1) a subscription is made on or before the 15th day of a calendar month,
the Vendor shall pay to HKFE one half of the Subscription Fee in
respect of that month; and
(2) a subscription is made after the 15th day of a calendar month, the
Vendor shall not be obliged to pay any Subscription Fee for that month.
METHOD B
--------
For the month in which a new subscription is made, the Subscription Fee payable
in respect of that subscription will be reduced proportionally according to the
number of days remaining in that month.
3. SUBSCRIBER'S DECLARATION
Where the Vendor collects a fee from its subscribers based on the number of
subscriptions declared by its subscribers then, subject to obtaining the prior
written approval of HKFE, the Subscription Fee shall be calculated based on the
number of subscriptions specified in the declarations.
4. VOLUME DISCOUNTS
The Vendor will receive the following discount on the Subscription Fee
(excluding the fee specified in paragraph 1(3)(b) of this Schedule) based on the
number of interactive workstations and pagers:
NUMBER OF WORKSTATIONS/PAGERS DISCOUNT RATE
----------------------------- -------------
Up to and including 30 Full Subscription Fee
31-60 (inclusive) 10% discount
61-90 (inclusive) 15% discount
more than 90 20% discount
5. PROMOTIONS
HKFE may (by giving notice in writing to the Vendor) waive the Subscription Fee
in connection with any promotion of a particular HKFE product.
12
6. SUBSIDIARIES
If the information contained in the composite signal is disseminated by the
Vendor directly to a subsidiary of the Vendor, to the holding company of the
Vendor or to another subsidiary of that holding company, the Standard Fee and
the Back up line Fee will be waived in respect of that subsidiary's or that
holding company's subscription.
13
THE FOURTH SCHEDULE
CONTRACTS
Hang Seng Index Futures
Hang Seng Index Options
Hang Seng Commerce & Industry Sub-Index Futures
Hang Seng Finance Sub-Index Futures
Hang Seng Properties Sub-Index Futures
Hang Seng Utilities Sub-Index Futures
Hang Seng China-Affiliated Corporations Index Futures
Hang Seng China-Affiliated Corporations Index Options
Stock Futures
Rolling Forex
3-Month Hong Kong Inter-Bank Offered Rate Futures
Gold Futures
14
