MARKET DATAFEED SERVICE AGRE
AN AGREEMENT dated the 3rd day of May, 1999
BETWEEN:
(1) STOCK EXCHANGE INFORMATION SERVICES LIMITED whose registered office is at
0xx Xxxxx, 0 xxx 0 Xxxxxxxx Xxxxxx, Xxxx Xxxx ("SEIS"); and
(2) The person whose name and address is set out in Schedule I Part A hereto
("The Licensee").
WHEREAS:
(A) SEIS is a wholly owned subsidiary of The Stock Exchange of Hong Kong
Limited.
(B) It has been agreed that SEIS will grant to the Licensee a non-exclusive
license to use certain information, for the period and upon the terms and
conditions hereinafter appearing.
IT IS HEREBY AGREED as follows:
1. Interpretation
In this Agreement, unless otherwise expressed or required by the context,
the following expressions shall have the following meanings:
Expressions Meanings
"Agreement" this agreement together with any subsequent modifications
thereto agreed in writing by the parties.
"Commencement Date" the date on which the Licensee is connected to the
Exchange for the purpose of receiving information as specified in
Schedule 1 Part A.
"Exchange" The Stock Exchange of Hong Kong Limited whose registered office
is at 0xx Xxxxx, 0 xxx 0 Xxxxxxxx Xxxxxx, Xxxx Xxxx.
"Hong Kong" xxx xxxxxx xx Xxxx Xxxx, Xxxxxxx and the New Territories.
"Information" information compiled by the Exchange and/or provided by SEIS
pursuant to this Agreement, including without limitation information
within any categories described by SEIS from time to time pursuant to
clause 2.3.
"Initial Transmission Method" the method of transmission of the Information
as notified in writing to the Licensee by SEIS prior to the
Commencement Date.
"LAO Statement" a statement in response to requests for information made by
SEIS of its licensees, as further provided for at clause 5.7.
"License Fees" the fees to be paid by the Licensee to SEIS pursuant to
clause 5 of this Agreement.
"News" Information concerning announcements of the Exchange and companies
listed on the Stock Exchange, and other information of general
interest originating from the Exchange.
"Off Market" a trading floor or dealing service where (a) trading in
Securities listed on the Stock Exchange or of a type capable of being
so listed or (b) any other Securities relating to Securities described
at (a) above is being undertaken otherwise than at or through the
Stock Exchange.
"Permitted Purpose" the purposes for which Licensee may use the Information
as described in this Agreement, and as more particularl et out at
Schedule I Part A under the heading "Memorandum of Permitted Purpose"
or as defined in any revised Memorandum of Permitted Purpose issued by
SEIS pursuant to clause 2.4.
"Quarter" the quarters of each year ending on 00xx Xxxxx, 00xx Xxxx,00xx
September and 31st December.
"Related Company" shall mean, in relation to any company, any other company
which is for the time being a holding company of such company or a
subsidiary company of such company or a subsidiary of a holding
company of such company. For this purpose the expressions "subsidiary"
and "holding company" shall have the meanings ascribed to them by
Section 2 of the Companies Ordinance of Hong Kong.
"Securities" the same meaning as defined in Section 2(l) of the Securities
Ordinance (Cap. 333).
"Stock Exchange" the stock market established, operated and maintained by
the Exchange pursuant to Section 27 of the Stock Exchanges Unification
Ordinance(Cap. 361).
"Subscriber" a person to whom Information is provided by the Licensee in
accordance with clause 4.1 and with whom the Licensee has a subsisting
contract for the supply of inter alia Information.
"Subscriber Report" a statement as defined at clause 5.4.
"Subscriber Unit" the meaning set out at paragraph 6 of Schedule 1 Part B.
2 License
2.1
SEIS hereby grants to the Licensee a non-exclusive license to use the
Information for the Permitted Purpose and according to the terms set
out in this Agreement.
2.2 The Agreement shall commence on the Commencement Date.
2.3. The categories of Information initially provided to the Licensee
hereunder shall be those categories notified in writing to the
Licensee by SEIS prior to the Commencement Date ("the Categories
Notice"). SEIS shall have the right at any time to alter the
presentation or substance of the Information (unless the alteration
involves the deletion of one or more categories of
Information described in the Categories Notice in which case the notice
period shall be a minimum of 30 days and, in that event, Licensee shall be
entitled at any time during the 21 days following service of such notice to
terminate this Agreement with effect from the date when the alteration is
to be implemented, by giving written notice to SEIS). Notwithstanding the
above SEIS shall have the right to alter the presentation or substance of
the Information without prior notice to the Licensee if required to do so
by reasons outside its control.
2.4 SEIS acknowledges and agrees that the Licensee may under and for the
purposes of this Agreement provide the Information to Subscribers in the
form or format in which the Information is supplied to Licensee hereunder
or in any other form or format including for use in composite information
systems provided always that (a) the Information is acknowledged as being
derived from the Exchange and its format or editing is in no way misleading
as to the nature or content of the Information and (b) the Licensee shall
not remove, displace or alter any copyright, confidentiality or other
proprietary notices or any disclaimer notice of the Exchange and (c)
whenever Licensee wishes to provide the Information in a different form or
manner, whether to constitute a new service to, or to modify, an existing
service specified in the Memorandum of Permitted Purpose, Licensee will
first give SEIS no less than one month's prior written notice of its
intention, and shall provide such further details as SEIS may reasonably
request. For the avoidance of doubt, nothing in this clause 2.4 shall
entitle Licensee to do anything outside the scope of the Permitted Purpose
without first obtaining SEIS' written consent, (such consent not to be
unreasonably withheld). SEIS may, at any time after receiving such notice,
issue a revised Memorandum of Permitted Purpose to re-define and/or
re-classify the services in question, which Memorandum shall form a part of
this Agreement and shall replace any then existing Memorandum of Permitted
Purpose with effect from its date of issue by SEIS or from the date when
the modified services are introduced, if later. (For the avoidance of
doubt, this clause is without prejudice and subject to clause 5.8.)
2.5 Licensee will incorporate the following disclaimer notice (or a disclaimer
notice to equivalent effect) into all contracts with Subscribers:
"THE STOCK EXCHANGE OF HONG KONG LIMITED ENDEAVOURS TO ENSURE THE ACCURACY
AND RELIABILITY OF THE INFORMATION PROVIDED BUT DOES NOT GUARANTEE ITS
ACCURACY OR RELIABILITY AND ACCEPTS NO LIABILITY (WHETHER IN TORT OR
CONTRACT OR OTHERWISE) FOR ANY LOSS OR DAMAGE ARISING FROM ANY INACCURACIES
OR OMISSIONS"
2.6 Licensee will ensure that, so long as it is technically possible to do so,
a disclaimer notice as described in clause 2.5 above shall be transmitted
to Subscribers so that it is conspicuously perceptible during or
immediately prior to each continuous period throughout which the relevant
Subscriber has access to the Information.
3 Transmission of Information
3.1 During the currency of this Agreement SEIS will procure the supply of the
Information to the Licensee in the form of electronic signals generated by
the computer system for the time being used by the Exchange. Licensee shall
effect (complying promptly with SEIS's requirements for such connection)
two connections to the Exchange's primary computer information system, and
one connection to the Exchange's backup computer information system, and
shall bear the costs of so connecting Licensee and of maintaining each such
connection (including without limitation the Port Fees set out at Schedule
I Part B and any other connection and/or maintenance charges levied in this
respect by SEIS or the Exchange), The connection equipment and
communication lines to be installed on the Exchange's premises must be
approved in advance by the Exchange.
3.2 The Information shall initially be supplied in accordance with the Initial
Transmission Method but the method of transmission may be changed at any
time upon SEIS giving the Licensee not less than thirty days written notice
thereof. Notwithstanding the above, SEIS shall have the right to alter the
method of transmission without prior notice to the Licensee if required to
do so by reasons outside its control.
3.3 SEIS shall use its best endeavours to ensure that the Information is
provided to the Licensee on a continuous basis during the trading hours of
the Stock Exchange.
3.4 Licensee shall be responsible for complying with all relevant regulations,
governmental or otherwise, and the obtaining of all relevant licenses,
governmental or otherwise, relating to its use of the Information.
4. Permitted use of Information
4.1 The Licensee may use the Information for dissemination to Subscribers
provided that it pays to SEIS all applicable License Fees. It may not
disseminate the Information to any other person except as permitted by
clause 4.6 below.
4.2 The Licensee shall use reasonable endeavours to ensure that:
4.2.1 any equipment or software used to process the Information are
arranged;
4.2.2 other suitable procedures are in place so that no unauthorized person
or device can obtain access to the Information.
4.3 The Licensee shall ensure and procure that all and any dissemination of the
Information to any Subscriber shall be on terms that:
4.3.1 no Subscriber shall, without the prior written approval of SEIS (such
approval not to be unreasonably withheld) disseminate the Information
or Any part thereof to any other person;
4.3.2 no Subscriber shall use or permit the use of the Information or any
part thereof for any illegal purpose;
4.3.3 no Subscriber shall use the Information or any part thereof other
than in the ordinary course of its own business (which shall not
include dissemination to third parties); and
4.3.4 no Subscriber shall use the Information or any part thereof to
establish, maintain or provide or to assist in establishing,
maintaining or providing an Off Market.
4.4 The Licensee shall use best endeavours to assist SEIS in ensuring that no
Subscriber is using the Information or any part thereof contrary to the
Provisions of this clause 4 and shall promptly supply to SEIS the names and
addresses of any Subscriber whom the Licensee or SEIS suspects is in breach
of such provisions.
4.5 If SEIS suspects that a Subscriber is using the Information or any part
thereof contrary to the provisions of this clause 4, SEIS may serve a
written notice on the Licensee specifying the name of such Subscriber and
the nature of the suspected misuse and requiring the Licensee to notify
that Subscriber in writing that it must forthwith cease such misuse and
must provide such proof as SEIS may reasonably require that it has ceased
(or never committed) such misuse. The Licensee shall immediately comply
with such a notice on receipt. If the Subscriber fails to comply with
Licensee's notice within such period as SEIS may specify the Licensee shall
forthwith at SEIS' further written direction cease to supply the
Information to that Subscriber or reduce the supply to a level specified by
SEIS.
4.6 The Licensee may not assign or sub-license the right to disseminate the
Information except as follows:
4.6.1 the Licensee may sub-license the right to disseminate the Information
to a Related Company, provided that
(i) the Licensee gives SEIS prior notice of the sub-licensing
together with evidence, to the satisfaction of SEIS, that the
sub-licensee is a Related Company,
(ii) The sub-license shall terminate upon its ceasing to be a Related
Company,
(iii) the sub-license shall impose on the Related Company all the
restrictions and obligations imposed on Licensee by this
Agreement relating to the use of the Information except that no
Related Company shall be liable to pay any License Fees in
addition to those payable by the Licensee pursuant to sub-clause
(v) below,
(iv) Licensee shall be personally liable hereunder for any breach by
such Related Company of such restrictions or obligations, so that
such breach shall be treated as a breach of this Agreement,
(v) Licensee shall, as part of its obligations under clause 5, be
directly responsible for providing payments and statements on
behalf of any such Related Companies as well as for itself, by
way of a single consolidated statement which consolidated
statement shall nevertheless also provide a breakdown of relevant
payments and other information ascribable to each Related
Company.
4.6.2 the Licensee may sub-license the right to disseminate the
Information to such other third parties as are approved in
advance in writing by SEIS, SEIS shall have complete discretion
as to the terms on which it agrees such sub-license. Without
prejudice to the foregoing, unless expressly otherwise agreed by
SEIS:
(i) the sub-license shall impose on the third party all the
restrictions and obligations imposed on Licensee by this
Agreement relating to the use of the Information,
(ii) Licensee shall be personally liable hereunder for any breach
by such third party of such restrictions or obligations, so
that such breach shall be treated as a breach of this
Agreement,
(iii) without prejudice to (i) and (ii), the third party
sub-licensee shall render a Subscriber Statement and payment
in accordance with clause 5 direct to SEIS.
4.6.3 SEIS may, in respect of any sub-license granted pursuant to
sub-clause 4.6.2 of this clause, at any time by notice in writing
given to the Licensee either require the Licensee to terminate
such sub-license or impose further conditions in respect of such
sub license or require that the sub-licensee enter into a direct
license with SEIS.
4.7 The Licensee shall not knowingly use the Information or any part thereof to
establish, maintain or provide, or assist in establishing, maintaining or
providing an Off Market nor shall the Licensee provide a Securities dealing
service in Hong Kong without obtaining the prior written consent of SEIS
(such consent not to be unreasonably withheld).
4.8 The Licensee shall comply with such directions as SEIS may reasonably
require from time to time concerning permitted use of the Information,
provided that
4.8.1 such directions are incorporated in the Memorandum of Permitted
Purpose or are otherwise given in writing by not less than 3 months
notice; and
4.8.2 at any time during the 30 days following service of such notice
Licensee shall be entitled to terminate this Agreement with effect
from the date when the direction is to be implemented, by giving
written notice to SEIS.
5 Licence Fees and payments
5.1 During the currency of the License the Licensee shall pay the License Fees
calculated and payable to SEIS in accordance with the provisions of
Schedule 1 Part A and Schedule 1 Part B hereto.
5.2 SEIS shall have the right to amend the License Fees or any element of them
at any time upon giving the Licensee not less than three months notice in
writing thereof. At any time during the 30 days following service of such
notice Licensee shall be entitled to terminate this Agreement with effect
from the date when the amendment is to be implemented, by giving written
notice to SEIS. For the avoidance of doubt, SEIS's right to amend the
License Fees includes without limitation the right to introduce additional
License Fees to cover any new or existing types of service, to modify the
basis for calculating any License Fees and to change the classification of
any service so that an amended License Fee becomes payable.
5.3 No part of the License Fees will be refundable to the Licensee if this
Agreement terminates, for whatever reason, during a month for which the
License Fees or any part thereof have been paid in advance.
5.4 The Licensee shall provide a statement ('the Subscriber Report') to SEIS
within 15 days of the end of each month (unless the Subscriber Report
relates to Subscribers outside Hong Kong, in which case it shall be
provided within 30 days of the end of the month) as to:-
5.4.1 the names of the Subscribers to whom it has disseminated the
Information during the preceding month and stating the name or nature
of the service by which each received the Information, the number and
type of Subscriber Units for each Subscriber within Hong Kong and
outside Hong Kong; and
5.4.2 the License Fees payable for that month.
The Subscriber Report shall contain such further information and shall
be provided in such format as SEIS may reasonably require (by not less
than 90 days' written notice) from time to time.
5.5 The Licensee shall maintain complete-and accurate records of how the
License Fees specified in each Subscriber Report have been calculated and
shall make such records available to SEIS within 30 days of receiving SEIS'
written request. SEIS shall have the right not more than once in each
Quarter during and also once in the Quarter following termination of this
Agreement to inspect all documents pertaining to such records covering the
period of the preceding Quarter (and, if not yet so inspected, previous
Quarters) either itself or by its authorized agents. The Licensee shall,
upon receiving SEIS' written request, permit and/or (if so requested)
procure that SEIS may inspect promptly thereafter the premises and records
of the Licensee and any sub-licensee, for the purpose of satisfying SEIS by
whatever proofs SEIS may reasonably require that the License Fees are being
properly accounted for and/or that the Licensee and/or its sub-licensees
are using the Information for the Permitted Purpose only and are not using
Information contrary to the provisions of clause 4, provided always that
Licensee shall not be obliged to make and/or procure such inspection to
take place more than once in any Quarter. SEIS shall bear its costs
(including internal management time and expenses) of each inspection,
unless the inspection establishes that SEIS has been underpaid by 5% or
more of the amount actually paid in respect of License Fees for that
Quarter in which case Licensee shall bear such costs. For the avoidance of
doubt, such underpayment shall be deemed to have been payable with effect
from the due date for providing the Subscriber Report relevant to such
underpayment.
5.6 The Licensee shall, upon receiving SEIS' written request, inspect and/or
(if so requested) procure that SEIS may inspect promptly thereafter the
premises and records of any Subscriber specified by SEIS, for the purpose
of satisfying SEIS by whatever proofs SEIS may reasonably require that the
Licence Fees in respect of that Subscriber are being properly accounted for
and/or that the Subscriber is not using Information contrary to the
provisions of clause 4, provided always that Licensee shall not be obliged
to make and/or procure such inspection (in respect of any one Subscriber)
to take place more than once in any Quarter,
5.7 The Licensee shall provide SEIS with a statement ('the LAO Statement') by
its auditors in such form and at such times as SEIS may reasonably require,
and initially in response to a Licensee's auditor questionnaire compiled by
SEIS and in accordance with the procedures provided for by Schedule 2. SEIS
shall notify any change in its requirements by not less than 90 days'
written notice unless SEIS is compelled to make such change on shorter or
without any notice for reasons which are beyond its control.
5.8 If SEIS establishes, by whatever means, that Information is being or has
been used to provide services (a) outside the scope of the Permitted
Purpose or (b) within the scope of the Permitted Purpose but in a manner
materially different to the manner in which Licensee had previously
represented to SEIS that those services would be provided, then SEIS shall
be entitled to issue a revised Memorandum of Permitted Purpose to re-define
and/or re-classify the services. If SEIS does so re-classify any services-
(i) Licensee shall be liable to pay Licence Fees in accordance with such
re-classification as if those services had been so classified from the
date when they were first so provided; and
(ii) Licensee shall pay promptly to SEIS or SEIS shall re-pay promptly to
Licensee, as the case may be, the balance of any monies thereby due.
5.9 If Licensee is late in paying any sums due to SEIS under this Agreement by
more than 30 days, interest shall be payable on such sums calculated from
the date such sums first become due in respect of each month or part
thereof for which they are not paid at a rate of 40% per annum.
5.10 Where an inspection is made pursuant to clauses 5.5 or 5.6 and SEIS in
consequence is of the opinion that SEIS has been underpaid by 5% or more of
the relevant Licence Fees, Licensee shall, upon receiving SEIS' written
request, permit and/or if so requested procure such further inspections by
SEIS as SEIS considers necessary to determine the proper basis on which
those Licence Fees should have been accounted.
6 Termination
6.1 Either party shall be entitled without stating a reason to terminate
this Agreement by giving not less than six complete calendar months
prior notice of termination in writing to the other party.
6.2 Either party shall be entitled to terminate this Agreement forthwith
by written notice (and thereupon the provision of the Information to
Licensee may cease) upon the occurrence of any of the following
events:
6.2.1 in the case of the other party being an individual or a
partnership, the death or bankruptcy of the other party or any
partner thereof, or a receiving order or judgment or levy being
made against any assets of the other party or any partner
thereof, or the other party or any partner thereof having entered
into any composition with any of his or her creditors or the
dissolution of the partnership; or
6.2.2 in the case of the other party being a corporation, the
commencement of winding-up of the other party, or a receiver
having been appointed over or judgment or levy being made against
any assets of the other party, or the other party having entered
into any scheme, arrangement or composition with any of its
creditors; or
6.2.3 the other party having committed any irremediable breach of this
Agreement or, the terminating party having given written notice
to the other party to remedy any breach or default, the other
party shall have failed to do so within 30 days of such notice.
6.3 The Licensee shall be entitled to terminate this Agreement forthwith by
written notice if for any reason Information is not supplied to Licensee
for a period in excess of 10 consecutive working days on which the Stock
Exchange is open for the business of trading in Securities.
6.4 Upon termination of this Agreement, SEIS shall have the absolute right to
terminate the transmission of the Information with immediate effect, and
all sums due hereunder from Licensee shall become payable forthwith to
SEIS.
7 Exclusion of Liability and Indemnity
7.1 Nothing in this clause shall restrict or exclude liability of SEIS or the
Licensee in respect of death or personal injury resulting from negligence.
Further, if Information is not transmitted to the Licensee for a continuous
period of not less than 10 consecutive working days, SEIS shall be liable
to compensate the Licensee for loss arising from such non-transmission, but
its liability shall be limited to the amount of the Licence Fees payable in
respect of that period (reduced pro-rata when the fees are payable in
respect of a longer period).
7.2 Subject to the foregoing neither SEIS nor the Exchange shall be liable to
the Licensee or any person claiming through Licensee in respect of
consequential, economic or any other loss or damage arising from any act or
omission, mistake, delay, interruption, whether willful, negligent or
otherwise, arising from or in connection with (a) the collection, use or
transmission of the Information by or to the Licensee or (b) the
Information being inaccurate, incomplete or otherwise misleading or (c) any
other services to be provided by them pursuant to this Agreement. Further
the Licensee undertakes not to institute or attempt or threaten to
institute any proceedings in any jurisdiction in or outside Hong Kong
against SEIS or the Exchange for recovery of any of the aforesaid loss
suffered by the Licensee or by any other person or otherwise to maintain
any claim against SEIS or the Exchange for or in respect of any of the
aforesaid loss.
7.3 Subject to clause 7.1 the Licensee will at. all times hereafter indemnify
and keep SEIS and the Exchange effectively indemnified against and in
respect of all liabilities, economic or other losses, damages, costs,
claims, suits, demands, fees and expenses of whatsoever nature which may be
incurred by SEIS or the Exchange towards or in relation to any person or
which may be taken, made or claimed against SEIS or the Exchange by any
person as a result of or in connection with or arising out of any act,
omission, mistake, delay or interruption, on the part of Licensee, SEIS or
the Exchange, whether willful, negligent or otherwise, in relation to this
Agreement, including (without prejudice to the generality of the foregoing)
acts or omissions in respect of or in connection with or arising out of the
collection, use or transmission of the Information by or to the Licensee or
arising from the Information being inaccurate, incomplete or otherwise
misleading.
7.4 For the purposes of this clause, SEIS contracts as agent for the Exchange,
and Licensee agrees to said exclusion of liability and indemnity in favour
of the Exchange in consideration of the Exchange consenting to SEIS
entering into this Agreement.
8 Free Subscription for SEIS
To enable SEIS to monitor the service provided by Licensee under the
Licence, Licensee shall for the duration of this Agreement and free of
charge allow SEIS access to the Information by supplying to SEIS all
services of Licensee and any relevant equipment by means of which it
transmits the Information to its Subscribers as if SEIS were a subscriber
thereto.
9 Notices
9.1 Any notice or other document to be given or served hereunder may be
delivered by hand or sent by pre-paid post, telex, telecopier or facsimile
transmission to the party to be served at its address stated herein or at
such other address as that party shall have notified the other in
accordance with this Agreement.
9.2 Any such notice or document shall be deemed to have been served:-
9.2.1 if delivered, at the time of delivery; or
9.2.2 if posted, at the expiration of seven days after the postage pre-paid
envelope containing the same shall have been put into the post; or
9.2.3 if sent by telex, telecopied or facsimile transmission, at the
expiration of 12 hours after the same shall have been despatched.
9.3 In proving such service it shall be sufficient to prove that delivery was
made or that the envelope containing such notice or document was properly
addressed and posted or that the telex, telecopier or facsimile
transmission was properly addressed and despatched as the case may be.
10 Proprietary Rights
10.1 Licensee hereby acknowledges that it has no entitlement to any proprietary
rights including without limitation rights of copyright in and to the
Information or the presentation of the Information, which rights are owned
by the Exchange or by other third parties. As regards rights owned by the
Exchange, Licensee acknowledges that the Exchange has authorized SEIS only
to supply the Information by way of this Agreement and SEIS warrants that
it has obtained such authorization.
10.2 Licensee may represent that it is supplying Information derived from the
Exchange under licence from SEIS but shall not make any other use save as
required by clause 2.4 of the Exchange's or SEIS' name nor of any logos or
other marks used by them. Upon termination of this Agreement, Licensee
shall cease forthwith so to represent itself and shall not make any other
commercial use of such marks.
10.3 Licensee shall at all times treat the Information and any information
ancillary thereto obtained pursuant to this Agreement as confidential and
shall not disclose such Information to any third party other than to a
Subscriber, irrespective of whether it is in the same format as supplied to
Licensee by the Exchange.
10.4 Licensee shall forthwith upon suspecting any infringement of such rights as
are described in this clause notify SEIS and thereafter provide such
assistance as SEIS or the Exchange may reasonably request to protect such
rights.
10.5 This clause shall continue to have effect notwithstanding termination of
the rest of this Agreement.
11 Amendments, Waivers and Enforceability
11.1 A provision of this Agreement may be amended only if the parties agree in
writing.
11.2 No waiver or indulgence by any party to this Agreement shall be binding
unless in writing and in any event no waiver of one breach of any term or
condition of this Agreement shall operate as a continuing waiver unless so
expressed nor operate as a waiver of another breach of the same or any
other term or condition of this Agreement.
11.3 In the event that any provision in this Agreement is for any reason held to
be unenforceable, illegal or otherwise invalid, this shall not affect any
other provisions of this Agreement, and the provision in question shall be
construed in such reasonable manner as achieves the intention of the
parties without being invalid.
12 Entire Agreement
This Agreement sets out the entire agreement of the parties concerning the
subject matter hereof and supersedes all prior agreements, negotiations,
representations and proposals, whether written or oral.
13 Governing Law
This Agreement shall be governed by and construed in accordance with the
Laws of Hong Kong whose courts shall have non-exclusive jurisdiction in
relation thereto.
IN WITNESS whereof the parties have entered into this Agreement the day and
year first above written.
SIGNED by Xxxxx Xxx, Director
for and on behalf of
STOCK EXCHANGE INFORMATION SERVICES LIMITED /s/
in the presence of Xxxxxx Xxxx
SIGNED by
for and on behalf of /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Momentum Internet Incorporated Director
in the presence of
SCHEDULE 1
PART A
The Licensee
Name Address
Momentum Internet Incorporated P.O. Box 957
Offshore Incorporations Centre,
Road Town
Tortola
British Virgin Islands
Commencement Date
19 April 1999
SCHEDULE I
PART A (CONTINUED)
MEMORANDUM OF PERMITTED PURPOSE (Cross reference clause
Description of Service/ Classification License Fees Start Date of
Permitted Purpose Service
(TO BE CONFIRMED UPON SEIS APPROVAL
ON LICENSEE'S PROPOSED SERVICES)
Notes: (1) News may only be disseminated as part of a Continuous Access Service.
SCHEDULE 1
PART B
LICENSE FEES
1 Types of License Fee Payable
The types of License Fee and their basis for computation include those set
out in the Memorandum of Permitted Purpose which ate payable by reference
to the terms 'Standard Fee' and 'Subscriber Fee', in which context these
terms appear elsewhere in this Schedule and/or Agreement.
2 Standard Fee and Minimum Subscriber Fee
If Licensee offers more than one type of service during any month, only one
Standard Fee shall be payable in relation to that month, being the Standard
Fee of greatest amount, and only one minimum Subscriber Fee of HK$6,000
shall be payable in relation to that month.
3 Discretion to Introduce Additional License Fees
Subject to clause 5.2 of this Agreement, SEIS shall have sole discretion to
determine the different types of service in relation to which License Fees
are payable and reserves the right to introduce additional Licence Fees for
any types of service, including without limitation services for which no
Licence Fees are for the time being payable.
4 Port Fees
In addition to the License Fees payable pursuant to 1 to 3 above, an annual
Port Fee shall be payable as part of the License Fees in the sum of
HK$24,000 per annum for the 3 connections referred to at clause 3.1 of this
Agreement. This assumes that only one of the connections to the Exchange's
primary computer system is providing live production data at any one time.
If at any time during any Quarter, both connections at the primary system
are simultaneously providing the same live production data, an additional
Port Fee is payable of HK$70,000 per Quarter. Such additional Port Fee
shall not be reduced on a pro-rata or any other basis if the provision of
live production data is not maintained by both connections throughout the
Quarter in question.
5 SEIS Decision Is Final
Subject to clause 5.2 of this Agreement, SEIS shall have sole discretion to
determine from time to time without giving reasons the classification of
the types of service provided by the Licensee and, pursuant thereto, the
amount of Licence Fees payable by the Licensee. SEIS' decision shall be
final.
6 Subscriber Units
6.1 For the purpose of calculating Subscriber Fees, the number of Subscriber
Units shall, in relation to any single Subscriber during any one month, be
the number of end user receptors on the Specified Date (or if the number is
variable on that date, the maximum number) permitted to access the
Information by means of Licensee-derived authorization. Such authorization
shall include but shall not be limited to passwords, user ID logons, access
codes or security codes or any more general means of authorization such as
those granted 'en bloc' to a specified maximum number of individual users
and/or regulated by remote on-line audit tools without using passwords or
the like, 'End-user receptor' shall for this purpose mean any person or
point.
which Licensee-derived Information is imparted so that the Information may
be perceived or processed otherwise than for the sole purpose of
re-disseminating the Information and shall include, without limitation
6.1.1 any device by means of which the Information can be perceived by
humans, including but not limited to dedicated terminals, portable
computers, wallboards, paging devices and mobile phones; and
6.1.2 any other type of device by means of which the Information is
processed; and.
6.1.3 any individual employed or otherwise directly controlled by the
Subscriber who has authorization to access the Information otherwise
than by means of an authorized device of the type described at 6.1.1
or 6.1.2 above
and each end-user receptor shall count as one Subscriber Unit.
6.2 For the purpose of 6.1, the Specified Date means the last day of the month
(or such other date as SEIS may from time to time substitute by written
notice on either a one-off, occasional or recurring basis).
7 Discounts and Delayed Data
7.1 Where there are more than 30 Subscriber Units (excluding unauthorized
end-user receptors) in relation to any one Subscriber each of which units
receives the same classification of service throughout a particular month,
the Subscriber Fee for that month in respect of those Subscriber Units
shall be discounted as follows:
No.of Subscriber Units Discount
---------------------- --------
31 to 60 10%
61 to 90 15%
91 to 500 20%
501 to 1000 40%
1001 or more 65%
7.2 Discounts must be claimed no later than the time due for submitting the
relevant Subscriber Report.
7.3 No Subscriber Fee shall be payable in relation to Licensee's making
Information available to Subscriber where a delay of at least 60 minutes
has occurred after the Information is first made available to the Licensee.
8 News Services
Subject to 3 above, no fee is payable for the dissemination of Information
which is in the nature of News.
9 Times when Payments are Due
9.1 The Standard Fee for the first Quarter shall become payable as soon as
Licensee begins disseminating the Information to Subscribers or, if sooner,
at the expiry of two months from the Commencement Date irrespective of
whether Licensee has begun disseminating the Information to Subscribers
provided that where the Standard Fee becomes payable for the first Quarter
other than at the commencement of the relevant Quarter the Standard Fee
will be reduced by one third for each complete month elapsed; and
thereafter each Standard Fee shall be payable on or prior to commencement
of the Quarter to which that Standard Fee relates.
9.2 Licensee's first Subscriber Fee shall become payable at the expiry of the
first month during which it begins disseminating the Information to
Subscribers or, if sooner, at the expiry of four months from the
Commencement Date irrespective of whether Licensee has begun disseminating
the Information to Subscribers. Thereafter Subscriber Fees shall become
payable from the date when the Subscriber Report describing those
Subscriber Fees is due to be provided pursuant to clause 5.4 of the
Agreement.
9.3 The annual Port Fee shall be payable on the first business day of each year
or, in the first year of the connection to which the Port Fee relates, the
date when such connection is first made subject to a pro rata reduction of
HK$1,000 for each complete calendar month elapsed. Any additional Port Fee
shall be payable on or prior to commencement of the Quarter (or, if later,
commencement during that Quarter of the live feed) to which that additional
Port Fee relates.
SCHEDULE 2
(Reference clause 5.7)
1 The Licensee shall, within 30 days of the date of any formal report made by
its auditors in relation to its audited annual financial accounting
statement for any of its accounting years, submit to SEIS a LAO Statement
signed by those same auditors giving answers to such questions in writing
as SEIS may reasonably specify to the Licensee from time to time but in
each case no later than 30 days after the accounting year end date for the
annual financial accounting statement in question.
2 Upon signing of this Agreement, the Licensee shall promptly notify SEIS in
writing of the date of its current accounting year end and the expected
date of the report of its auditors in relation thereto.
3 The Licensee shall thereafter promptly notify SEIS from time to time of any
changes in such dates, in relation to that accounting year or any
subsequent accounting year.
4 If requested by SEIS, the Licensee shall procure its auditors to provide
prompt clarification to SEIS of any answers given in the said LAO
Statement, such clarification to be provided either orally or in writing or
both.
5 Where the Licensee makes audited financial accounting statements other than
on an accounting year basis, the obligation to make LAO Statements to SEIS
hereunder shall be satisfied if the LAO Statement is submitted to SEIS
within 30 days of the date on which the corresponding formal auditor's
report is actually made.
