Contract No. 129044
Client No. HK29487
REUTERS SERVICES CONTRACT
(1) We, Reuters Hong Kong Limited located at 10th Xxxxx, Xxxxxxxxx 0, 00
Xxxxxx Xxx Xxxx, Xxxxxx Xxx, Xxxx Xxxx, and
(2) You MOMENTUM INTERNET INCORPORATED.................................
located at 12a, First Pacific Bank Centre, 00 Xxxxxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxx.
agree:
GLOSSARY
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All defined terms in this Contract are in italics for your convenience. The
terms used in the Contract are defined below:
Agreement - this Contract, the Reuters Business Principles, any applicable Order
Form and any other schedules or declarations referred to in these documents.
Agreed Level - the percentage change in the most recently published consumer
price index issued by the Hong Kong Census and Statistics Department compared
with that index published 12 months earlier.
Charges - the Service Fees and any related charges specified in clause 3. 1.
Contract - this document as amended or supplemented by us from time to time.
Information - the information (in whatever form including images, still and
moving, and sound recordings) contained in the Services.
Information Provider - a client of ours or other third party including any
stock, futures or commodities exchange whose Information is contained in the
Services.
Maintenance - a sub-set of Support which includes the use of reasonable efforts
by us or our nominee to maintain the Materials in good operating condition
and/or to restore the Service by repairing, correcting or replacing the
Materials.
Materials - hardware and/or Software and related documentation supplied by the
Reuters Group.
Order Form - our standard form (whether in written or electronic form) listing
the Services ordered by you and accepted by us.
Recipient Location - any of your offices, other than the Site, or any of the
offices of any Subsidiary of yours.
Reference Date - the date on which we make the first Service available to you
under the Agreement. If you are an existing client of ours at the date of the
Contract you will not have or need a Reference Date.
Reuters Business Information Products - Reuters Business Briefing Products,
Reuters Insurance Briefing, Reuters Business Alert and any other product which
we notify you is a Reuters Business Information Product.
Reuters Business Principles - the document called the Reuters Business
Principles as amended or supplemented by us from time to time.
Reuters Group - Reuters Group PLC and its Subsidiaries.
Reuters News Bulletins Products - the bulletin and/or newsletter of China
Securities, Finance and Bullion, General Metals, Gold, New York Stocks,
Shipping, Sugar, U.S. Commodity Futures and any other product which we notify
you is a Reuters News Bulletin Product.
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Reuters Stock Market Channel Products - Reuters Stock Market PRO and any other
product which we notify you is a Reuters Stock Market Channel Product.
Service/Services - the service(s) supplied by us under the Agreement, which
include(s) the provision of Information and/or Materials and Support.
Service Fees - the fees charged by us for the supply of the Services as
specified in the relevant Order Form(s) and/or related schedules, including
fees for specialist data Services.
Site - any location of yours to which the Services are supplied directly by us,
as specified in any Order Form.
Software - software or any part of it and related documentation, whether it is
an ancillary part of a Service and enables such Service to be used, or whether
the rental of such software itself constitutes the Service.
Software also includes upgrades and enhancements.
Subsidiary - a company in which another company owns directly or indirectly more
than 50% of the issued share capital and over which it exercises effective
control.
Support - Maintenance and other support provided by us or our nominee as
specified in the Support section of the Reuters Business Principles.
1. SCOPE OF THE AGREEMENT
We will supply the Services to you at the Site and you will pay the Charges and
use the Services in accordance with the Agreement.
2. COMMENCEMENT AND DURATION
2.1 The Agreement will take effect from the date of signature of the Contract by
both you and us and will continue for as long as you receive Services.
2.2 Subject to clauses 2.3 and 2.4 either of us may cancel any Service or any
access to a Service by giving prior written notice to the other of not less
than:
(a) 3 months in the case of Reuters Business Information Products, Reuters
News Bulletins Products and Reuters Stock Market Channel Products;
(b) 6 months in the case of other Services when indicated in the Order
Form; and
(c) 12 months in the case of all other Services.
2.3 Any cancellation following a notice given under.
(a) clause 2.2(a) or (b) cannot take effect earlier than the first
anniversary of the Reference Date; or
(b) clause 2.2(c) cannot take effect earlier than the second anniversary of
the Reference Date.
2.4 Where any Service consists of the rental of certain Materials, any
cancellation following the notice referred to in clause 2.2 cannot take
effect earlier than the end of the period specified in the Order Form which
period begins from the date of installation of such Materials.
2.5 In addition, we may give you increased cancellation flexibility in the
Reuters Business Principles in respect of certain Services.
3. CHARGES
3.1 You will pay the Service Fees and the following related charges (where
applicable):
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(a) installation, relocation and removal charges;
(b) charges for certain items of Support;
(c) charges for communications facilities;
(d) charges for Information, Software and/or other services provided by
certain Information Providers and other third parties; and
(e) all applicable taxes and duties (including withholding tax but
excluding income taxes imposed on the income of the Reuters Group) payable in
respect of the Services, so that after payment of such taxes and duties the
amount received by us is not less than the Service Fees.
3.2 We will endeavour to provide reasonable notice of any change to such related
charges, but you agree that they may change without notice if a change is
imposed on us by any third party.
3.3 The Service Fees for each Service are payable from the date that Service is
first made available to you. We will invoice you for the Charges. You will
pay the
Charges in full within the time specified on the invoice. Unless otherwise
specified in the Order Form, Charges are payable quarterly in advance.
3.4
(a) We may adjust or change the basis of calculation of the Service Fees
for each Service on not less than 3 months' prior notice.
(b) You may cancel any Service whose aggregate Service Fees taken over the
12 months preceding the date of our notice referred to in clause 3.4(a) are to
be increased by a percentage above the Agreed Level.
(c) If you choose to exercise the above right to cancel, you must give us
written notice within 30 days of the date of our notice referred to in clause
3.4(a) and the relevant Service will he cancelled from the date on which the
Service Fees would have increased.
3.5 As a condition to your receipt of the Services we may require a security
deposit or irrevocable bank guarantee from you. We may use the security
deposit or invoke the bank guarantee to recover any overdue Charges and/or
any liquidated damages payable under clause 4.7.
4. TERMINATION
4.1 Either of us may terminate the Agreement in whole or in part by written
notice if the other is in breach of any of its material obligations under
the Agreement and fails to remedy such breach (if capable of remedy) within,
in the case of a breach by you of your obligations under paragraph 4.2 of
the Reuters Business Principles, 72 hours and, in the case of any other
breach by either of us, 30 days of written request.
4.2 Either of us may terminate the Agreement immediately and without notice if.
(a) the other enters into a composition with its creditors;
(b) an order is made for the winding up of the other;
(c) an effective resolution is passed for the winding up of the other
(other than for the purposes of amalgamation or reconstruction on terms approved
by the first party (such approval not to be unreasonably withheld)); or
(d) the other has a receiver, manager, administrative receiver or
administrator appointed in respect of it.
4.3 In addition to the above, if you materially breach the Agreement, we may
immediately suspend the Services in whole or in part without penalty until
the breach is remedied.
4.4We may cancel a Service or a part of a Service, as the case may be, by
written notice if the provision of all or part of that Service:
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(a) depends on an agreement between a Reuters Group member and a third
party, and that agreement is modified or terminated for any reason or breached
by the third party and as a result we arc unable to continue to provide all or
part of that Service upon terms reasonably acceptable to us; or
(b) becomes illegal or contrary to any rule, regulation, guideline or
request of any exchange or regulatory authority.
4.5 We may, on 6 months' written notice, cease providing a Service if we
withdraw it from the country where the Site is located.
4.6 If clause 3.4(c), 4.4 , 4.5 or 8.4(b) applies, our only obligation to you
will be to refund the part of the Service Fees paid in advance for the
cancelled part of the Service.
4.7 If.
(a) you cancel any Service or any access to a Service other than when
permitted by the Agreement; or
(b) you are in breach of any payment obligation under the Agreement
entitling us to terminate the Agreement, we will be entitled to recover from you
as liquidated damages an amount equal to 75% of the relevant Service Fees which
would have been payable until the end of the applicable notice period in clause
2. We both agree that this constitutes a realistic pre-estimate of our loss and
is not intended to be a penalty.
4.8 Upon expiration or termination of the Agreement in whole or in part, unless
otherwise specifically agreed between you and us, you must delete any
Software and Information contained in the terminated Services, and, if
requested by us, certify the deletion in writing.
4.9 The following will continue to apply after termination of the Agreement:
(a) all disclaimers, indemnities and restrictions relating to the Services;
(b) our rights of access to the Site or Recipient Locations to remove the
Materials and to confirm deletion of any Software and Information; and
(c) the confidentiality undertaking in clause 6.
5. LIABILITY
5.1 Although we will use all reasonable endeavours to ensure the accuracy and
reliability of the Services, neither we nor any other member of the Reuters
Group, nor any Information Provider, nor any third party supplier will be
liable for any loss or damage in connection with the provision of or failure
to provide the Services except as set out in clause 5.2.
5.2 The Reuters Group accepts liability only for
(a) death or personal injury caused by our negligence;
(b) physical loss or damage to the Site caused by our negligence; and
(c) any other direct loss or damage caused by our gross negligence or
willful misconduct.
5.3 EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, ALL EXPRESS OR IMPLIED
CONDITIONS, WARRANTIES OR UNDERTAKINGS, WHETHER ORAL OR IN WRITING, IN LAW
OR IN FACT, INCLUDING WARRANTIES AS TO SATISFACTORY QUALITY AND FITNESS FOR
A PARTICULAR PURPOSE. ARE EXCLUDED.
5.4 Neither we nor any member of the Reuters Group, nor any Information
Provider, nor any other third party supplier will be liable to you or to any
third party for any indirect, special or consequential loss or damage
arising out of the Agreement or the Services.
5.5 You will indemnify us for any loss or damage caused to the Materials,
except to the extent such loss, damage or cost is caused by our negligence
or willful misconduct.
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5.6 You will indemnify us against any loss, damage or cost in connection with
any claim or action which may be brought by any third party against us
relating to any use of or access to the Information contributed by you to
the Services.
5.7 You will indemnify us for any loss or damage or cost in connection with a
claim or action resulting from:
a) any failure to supply Access Declarations (as defined in the Reuters
Business Principles),
b) any inaccurate Access Declaration (as defined in the Reuters Business
Principles).
c) you permitting access or redistributing Information inside or outside
the Site (including, without limitation, over the public internet and/or your
intranets) beyond the rights which we have specifically granted to you in the
Reuters Business Principles.
5.8 To the extent permitted by law and except for clause 5.2(a), under no
circumstances will our liability under the Agreement exceed 1 year's Service
Fees, regardless of the cause or form of action.
5.9 You agree that this clause 5 is enforceable by and to the benefit of members
of the Reuters Group, Information Providers and other third party suppliers.
CONFIDENTIALITY
6.1 Each of us acknowledges that information of a confidential nature relating
to the business of the other may be disclosed to it or otherwise come to its
attention. Each of us undertakes to hold such information in confidence and
not, without the consent of the other, disclose it to any third party nor to
use it for any purpose other than in the performance of the Agreement.
6.2 This obligation of confidentiality will not apply to information that is
generally available to the public through no act or omission of the
receiving party, or becomes known to the receiving party through a third
party with no obligation of confidentiality, or is required to be disclosed
by law, court order or request by any government or regulatory authority.
6.3 This undertaking will be binding for as long as such information retains
commercial value.
6.4 No public announcement, press release, communication or circular (other than
to the extent required by law or regulation) concerning the Agreement will
be made or sent by either of us without the prior consent of the other. This
consent will not be unreasonably withheld.
7. GENERAL
7.1
(a) All notices under the Contract will be sent by registered mail or by
fax or delivered in person:
(i) from us to you at the Site;
(ii) from you to us at the address stated in the most recent Order Form.
(b) Notices will be deemed to be received 3 business days after being sent
or on proof of delivery, if earlier.
7.2 Neither of us may assign any right or obligation of the Agreement or any
part of it without the prior written consent of the other. This consent may
not be unreasonably withheld. However, you agree that we may assign any of
our rights or obligations to a member of the Reuters Group.
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7.3 The Agreement is governed by the laws of Hong Kong. Both of us submit to the
non-exclusive jurisdiction of the Hong Kong Courts.
7.4 If any part of the Agreement that is not fundamental is found to be illegal
or unenforceable, this will not affect the validity and enforceability of
the remainder of the Agreement.
7.5 If either of us delays or fails to exercise any right or remedy under the
Agreement, that party will not have waived that right or remedy.
7.6 Neither of us will be held liable for any loss or failure to perform an
obligation due to circumstances beyond its reasonable control. Should such
circumstances continue for more than 3 months, either of us may cancel any
affected Service immediately on notice.
7.7 You agree that we, certain Information Providers and our agents will be
entitled to have access to the Site and Recipient Locations at any time
during business hours to verify your compliance with the Agreement. During
the verification, we and our agents will comply with your reasonable
requirements relating to security and confidentiality.
7.8 If there is any conflict between the terms of the Contract and the terms of
the Reuters Business Principles. the terms of the Contract will prevail.
8. ENTIRE AGREEMENT
8.1 You acknowledge that:
(a) you have been provided with a copy of the Reuters Business Principles;
(b) you have read the Reuters Business Principles and agree with its
contents; and
(c) the Reuters Business Principles and any Order Form are an integral part
of the Agreement.
8.2 The Agreement replaces any previous agreement between us in respect of the
Services and applies to any Services already supplied by us to you.
8.3 The Agreement contains our and your entire understanding regarding the
Services. In entering into the Agreement, you have not relied on any
warranty or representation (except in the case of fraud) made by us other
than those mentioned in the Agreement.
8.4 (a) In order to take account of new policies, we may amend the Reuters
Business Principles at any time by giving you 3 months' notice.
(b) If you can show that any amendment will result in an increase in your
costs of receiving the Services in excess of the Agreed Level or in a material
reduction of your rights to use the information, you may cancel the Service
affected.
(c) If you choose to exercise the above right to cancel you must give us
written notice within 60 days of the date of our notice referred to in clause
8.4(a) and the Service will be cancelled from the date on which the amended
Reuters Business Principles come into effect.
(d) In the case of a new Service requiring specific provisions. we will
notify you of the necessary amendments to the Reuters Business Principles, which
will take effect immediately to the extent that they apply only to the new
Service.
(e) As an exception to clause 7.1(a), we may send you our notices referred
to in clauses 8.4(a) and (d) electronically.
8.5 Except as set out in clause 8.4, the Agreement may only be varied by an
amendment signed by both of us.
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For and on behalf of For and on behalf of
REUTERS HONG KONG LIMITED MOMENTUM INTERNET INCORPORATED
Signed /s/ Xxxxx Hg Signed /s/ Xxxxxxx Xxxxx
Name Xxxxx Hg Name Xxxxxxx Xxxxx
Position Business Administration Position Director
Manager
Date 5 July 1999 Date June 30, 1999
