EXHIBIT 6.2
MARKET DATAFEED SERVICE AGREEMENT
AN AGREEMENT dated the 1st day of April 1998
BETWEEN:-
(1) STOCK EXCHANGE INFORMATION SERVICES LIMITED whose registered office is
at ▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("SEIS"); and
(2) The person whose name and address is set out in Schedule 1 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
licence 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 ▇▇▇ ▇▇▇▇▇, ▇
▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
"HONG KONG" ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ 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.
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"LICENCE 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 particularly set cut
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 31st
March, 30th June, 30th 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 LICENCE
2.1 SEIS hereby grants to the Licensee a non-exclusive licence 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.
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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'
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 1 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.
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3.4 Licensee shall be responsible for complying with all relevant
regulations, governmental or otherwise, and the obtaining of all
relevant licences, 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 Licence 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.
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 us6 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-licence 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,
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(ii) the sub-licence shall terminate upon its ceasing to
be a Related Company,
(iii) the sub-licence 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 Licence 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-licence 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-licence. Without prejudice to the foregoing, unless
expressly otherwise agreed by SEIS:
(i) the sub-licence 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-licence 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-licence or impose further conditions in
respect of such sub-licence or require that the sub licensee
enter into a direct licence 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.
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5 LICENCE FEES AND PAYMENTS
5.1 During the currency of the Licence the Licensee shall pay the Licence
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 Licence 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 Licence Fees includes without
limitation the right to introduce additional Licence Fees to cover any
new or existing types of service, to modify the basis for calculating
any Licence Fees and to change the classification of any service so
that an amended Licence Fee becomes payable.
5.3 No part of the Licence Fees will be refundable to the Licensee if this
Agreement terminates, for whatever reason, during a month for which the
Licence 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 Licence 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
Licence 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 Licence 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
Licence 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.
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5.7 The Licensee shall provide SEIS with a statement (`the LAQ 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.
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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 prorata
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 wilful,
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 agai6st
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 wilful, 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
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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.
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SCHEDULE 1
PART A
THE LICENSEE
NAME ADDRESS
Financial Telecom Ltd ▇▇▇▇ ▇▇▇▇▇ Resources ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
COMMENCEMENT DATE
1 December 1997
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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 )
for and on behalf of ) ▇▇▇▇▇▇▇ ▇▇▇▇▇, Director
STOCK EXCHANGE INFORMATION SERVICES LIMITED )
in the presence of:- )
Signed by ) ▇▇▇▇▇▇ ▇▇▇▇
for and on behalf of ) For and on behalf of
FINANCIAL TELECOM LIMITED ) FINANCIAL TELECOM LIMITED
in the presence of:- ▇▇▇▇▇▇ ▇▇▇▇ )
------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Director Director
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SCHEDULE 1
PART A (CONTINUED)
MEMORANDUM OF PERMITTED PURPOSE
(CROSS REFERENCE CLAUSE 2)
------------------------------------ ----------------------------- ---------------------------- ----------------------
DESCRIPTION OF SERVICE/PERMITTED
PURPOSE CLASSIFICATION LICENSE FEES START DATE OF SERVICE
------------------------------------ ----------------------------- ---------------------------- ----------------------
1. SPIDER LINK Continuous Access II (all Standard Fee: 1 January 1998
- Dedicated terminal with stocks) with speed above HK$96,000/quarter
leased line / dial-up line 6250 pbs Subscriber Fee:
HK$200/subscriber
unit/month
------------------------------------ ----------------------------- ---------------------------- ----------------------
2. ▇▇▇▇▇▇ SERVICE Continuous Access II (all Standard Fee:
- Dedicated terminal with stocks) with speed above HK$96,000/quarter
leased line / dial-up line 6250 bps Subscriber Fee:
HK$200/subscriber
unit/month
------------------------------------ ----------------------------- ---------------------------- ----------------------
3. CHINNET SERVICE Continuous Access II (all Standard Fee:
- Chinese version of ▇▇▇▇▇▇ stocks) with speed above HK$96,000/quarter
Service 6250 bps Subscriber Fee:
- Dedicated terminal with HK$200/subscriber
leased line / dial-up line unit/month
------------------------------------ ----------------------------- ---------------------------- ----------------------
4. ▇▇▇▇▇▇ VOICE Continuous Access II with Standard Fee:
- Voice Response System speed above 6250 bps HK$96,000/quarter
Subscriber Fee:
HK$120/concurrent
access/month
------------------------------------ ----------------------------- ---------------------------- ----------------------
5. ▇▇▇▇▇▇ VOICE FOR Continuous Access II with Standard Fee:
o INTERNATIONAL BANK OF ASIA transmission speed above HK$96,000/quarter
o THE BELGIAN BANK 6250 bps Subscriber Fee:
o THE FIRST PACIFIC BANK HK$120/concurrent
- Voice Response System access/month
------------------------------------ ----------------------------- ---------------------------- ----------------------
6. FINANCIAL PAGER Continuous Access II (all Standard Fee:
stocks) with speed above HK$96,000/quarter
6250 bps Subscriber Fee:
HK$120/subscriber
unit/month
------------------------------------ ----------------------------- ---------------------------- ----------------------
7. FINTREND Continuous Access II (all Standard Fee:
- PC with a receiver box stocks) with speed above HK$96,000/quarter
- realtime broadcast of stock 6250 bps Subscriber Fee:
information via radio paging HK$120/subscriber
network at 512 bps. unit/month
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------------------------------------ ----------------------------- ---------------------------- ----------------------
8. TRADESTATION Continuous Access II (all Standard Fee:
- PC installed with proprietary stocks) with speed above HK$96,000/quarter
software an connected with 6250 bps Subscriber Fee:
leased line HK$200/subscriber
- Provision of trading unit/month
analysis, charting and price
alert functions on PC
------------------------------------ ----------------------------- ---------------------------- ----------------------
9. ASIANETVEST ON INTERNET Continuous Access II (all Standard Fee:
stocks) with speed above HK$96,000/quarter
6250 bps unit/month Subscriber Fee:
HK$200/subscriber
------------------------------------ ----------------------------- ---------------------------- ----------------------
Notes
(1) News may only be disseminated as part of a Continuous Access Service.
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SCHEDULE1
PART B
LICENCE FEES
1 TYPES OF LICENCE FEE PAYABLE
The types of Licence Fee and their basis for computation include those set out
in the Memorandum of Permitted Purpose which are 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 LICENCE 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 Licence 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 Licence Fees payable pursuant to 1 to 3 above, an annual Port
Fee shall be payable as part of the Licence 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 to 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
14
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.
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.
15
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
LAQ 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
LAQ 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 LAQ Statements
to SEIS hereunder shall be satisfied if the LAQ Statement is submitted
to SEIS within 30 days of the date on which the corresponding formal
auditor's report is actually made
16