| QUOTEPOWER
SERVICE AGREEMENT |
| 1. |
INTRODUCTION |
| 1.1 |
Parties |
|
This Agreement is made between (1) QuotePower International
Limited ("QPI") AND (2) User as identified on the QuotePower Subscription
Form. |
| 1.2 |
Notice to User |
|
Upon submission of QuotePower Subscription Form, User
is assumed to have read, understood, and confirmed to accept and be bound
by the terms and conditions stated in this Agreement. |
| 1.3 |
Definitions |
|
In this Agreement the following expressions shall have
the following meanings: |
|
"Content" includes without limitation any content, software,
data, information, messages and all textual, audio, video, still image,
graphical and other contents or materials that can be accessed by or through
the Service; |
|
"Fees" means any subscription fee which is payable by User
associated with User's use and/or access to the Service together with such
other third party charges, access fees and other fees and charges as may
be charged by QPI from time to time, and whether or not as agent, for User's
use and/or access to the Service (and any other person's use and/or access
to the Service where such person was able to access the Service by using
Account) and/or the on-line delivery of Content; |
|
"Account" means any unique personal identifiers issued
by QPI to the User for gaining access to the Service; |
|
"Service" means the on-line service provided by QPI which
User wishes to access via the Internet and/or the wireless channel; |
|
"Sources" means all Content suppliers including but not
limited to The Stock Exchange of Hong Kong Limited and other exchanges and
specialist data providers whose Content is contained with the Service; |
|
"User" means any company, firm, partnership or individual
who is the recipient of the Service; and |
|
"Termination Date" means the last day of the Service, which
is made available to the User upon termination of this Agreement. |
| 2. |
LICENSES AND MUTUAL OBLIGATIONS |
| 2.1 |
Obligations of QPI |
| 2.1.1 |
In consideration of User paying to, and QPI receiving,
all sums due and owing under this Agreement, QPI shall grant to User a non-exclusive
non-transferable limited license to access the Service in accordance with
the terms and conditions of this Agreement and subject to any and all copyright
notices or restrictions applicable to the Service and its Content and such
license shall not permit local area network or wide area network distribution
of Content and is for individual use only. |
| 2.1.2 |
QPI shall authorize for each User one Account for access
by User to the Service. User is not allowed to give this Account to third
parties. |
| 2.1.3 |
QPI shall invoice the User periodically by e-mail with
all Fees incurred by the User during the period specified in the invoice
(¡§Billing Period¡¨). In the absence of manifest error, the details contained
in such invoice shall be final and conclusive. |
| 2.1.4 |
QPI reserves the right at all times to (i) immediately
suspend the User's access to the Service without notice, where QPI is of
the opinion that User has breached any of the terms contained in this Agreement
or that such action is appropriate, desirable or necessary in the reasonable
opinion of QPI; (ii) amend the Fees or introduce new fees or amend any of
the terms and conditions of this Agreement where such amendments shall be
posted on-line which shall take effect immediately after such posting is
made and such amendments shall not be notified to User individually. |
| 2.1.5 |
QPI may, at its absolute discretion and at any time, add,
amend or remove, without prior notice to User, alter the presentation, substance,
and functionality of any Content. |
| 2.1.6 |
Services that are designated to China users are offered
only to residents in China (Hong Kong S.A.R. and Macau are not included)
and User can only access the Service from within China, QPI reserves the
right to immediately suspend User's access to the Service if our system
detects that the User tries to access the Service from outside of China. |
| 3. |
Obligations of User |
| 3.1 |
User agrees to pay all Fees due in accordance with the
terms of this Agreement including all fees imposed by Sources which supply
data to User. User understands that the fees charged by such Sources may
change from time to time and agrees to pay the effective amount incurred
during the term of this Agreement. |
| 3.2 |
In the case of credit card payment, the User hereby authorizes
QPI to debit its credit card with the amount of any Fees which are due from
time to time. |
| 3.3 |
User shall inform QPI within 10 days of any change in name,
address or billing information provided by User to QPI to use the Service. |
| 3.4 |
User hereby acknowledges that the Service and the Content
are proprietary to and/or the copyright of QPI and/or QPI's holding companies,
subsidiary companies or associated companies and/or Sources and are for
use solely by the User, and the Content provided by the Service may not
be copied, manipulated, republished or redistributed to third parties in
any form by any means without the prior written consent of QPI and, where
necessary, the Sources. |
| 3.5 |
User shall forthwith notify QPI in writing of any misuse
of, or infringement of, the copyright of any Content. |
| 3.6 |
User will not trespass, break into, access, use or attempt
to trespass, break into, access or use any other parts of QPI's servers,
its Content and/or any data areas for which the User has not been authorized
by QPI. |
| 3.7 |
User shall not assign, transfer or sub-license all or any
part of it's rights or obligations under this Agreement. |
| 3.8 |
For services that are designated to China users, User is
required to provide a copy of the personal identity document and a valid
address proof to QPI prior to using the Service to prove that User resides
in China (Hong Kong S.A.R. and Macau are not included). |
| 3.9 |
As a condition of its continued receipt of index data originating from Dow Jones & Company, Inc. or any of its affiliates or agents ("Dow Jones"), User shall not create, sponsor or permit the trading on its exchange facilities, if any, of financial instruments or investment products (including, without limitation, derivatives, structured products, investment funds, exchange-traded funds or derivatives based on exchange-traded funds (e.g., options on ETFs or futures on ETFs)) where the price, return and/or performance of such instrument or product is based on, related to, or intended to track, any index published by Dow Jones or financial instrument or investment product (e.g., an exchange-traded fund) linked to an index published by Dow Jones, without a separate written agreement with Dow Jones for such purpose. |
| 4. |
DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITY |
| 4.1 |
Disclaimer of Warranty |
|
User expressly acknowledges and agrees that the Service
is provided to it on an "as is" basis and that its use of its Content is
at its sole risk. Neither QPI nor the Sources make any warranty of any kind
whatsoever (save for those expressly stated in this Agreement) relating
to the Service including any Content furnished through the Service, express
or implied, including without limitation, non-infringement of third party
rights or merchantability or fitness for any particular purpose of use.
QPI and the Sources endeavour to ensure the accuracy and reliability of
Content provided but do not guarantee its accuracy or reliability and accept
no liability (whether in tort or contract or otherwise) for any loss or
damage arising from any inaccuracies or omissions. |
| 4.2 |
Limitations of Liability |
| 4.2.1 |
Neither QPI nor the Sources shall be liable to User or
anyone else for any direct, indirect, consequential or incidental loss,
cost or damage, nor any special or punitive damage, or injury caused in
whole or in part by QPI's or Sources' negligence in procuring, compiling,
interpreting, editing, reporting or delivering any Content. In no event
will QPI or Sources be liable to User for any direct, consequential, incidental,
special or punitive damage, including any lost profits or lost savings,
or for any third party claim of any nature whatsoever related to the Service
or its use. |
| 4.2.2 |
Notwithstanding the foregoing, QPI's total liability for
damages, losses and causes of action, whether in contract, tort (including
negligence) or otherwise, will in no event exceed the Fees paid by User
to QPI under the terms of this agreement for a period of six months. |
| 4.2.3 |
User will indemnify QPI and Sources, their servants and
agents, and hold QPI and Sources, their servants and agents, harmless against
all claims, liability, losses, damages and expenses, including, without
limitation, legal fees and costs arising out of or incurred as the result
of any claims made, or litigation brought, against QPI and Sources, their
servants and agents, as a result of the use by User of the Content or part
thereof. |
| 5. |
TERM AND TERMINATION |
| 5.1 |
Term |
|
This Agreement shall take effect upon User accepting this
Agreement and shall continue until the termination of the Agreement. |
| 5.2 |
Termination and Effect |
| 5.2.1 |
User may terminate this Agreement at any time on the giving
of a prior written notice to QPI not less than one month before the end
of the current Billing Period and the Termination Date shall be the last
day of the said Billing Period. For the avoidance of doubt, User agrees
that such Termination Date shall be determined and confirmed by QPI. |
| 5.2.2 |
QPI may terminate this Agreement forthwith at any time
without notice if the User breaches any term of this Agreement or if User's
use of or actions in connection with the Service are inappropriate in the
reasonable opinion of QPI. |
| 5.2.3 |
Upon the termination of this Agreement (i) all licenses
and other rights and privileges granted to User under the terms of this
Agreement shall forthwith cease; and (ii) User will not be entitled to a
refund of any Fees which have been paid in advance on the termination of
this Agreement. |
| 6. |
GENERAL |
| 6.1 |
Notice |
|
All notices provided pursuant to this Agreement shall be
in writing sent by personal delivery, facsimile transmission, electronic
mail or by post, to the appropriate party at the parties addresses contained
on the subscription form or as otherwise agreed in writing between the parties.
Such notice shall be deemed effective, in the case of personal delivery
on the date of actual delivery; in the case of facsimile transmission and
electronic mail, on the date of transmission; and in the case of postal
mail, on the date set forth on the postal mark. |
| 6.2 |
Invalidity |
|
If any term or provision in this Agreement shall in whole
or in part be held to any extent to be illegal or unenforceable under any
enactment or rule of law, that term or provision or part shall to that extent
be deemed not to form part of this Agreement and the enforceability of the
remainder of this Agreement shall not be affected. |
| 6.3 |
Entire Agreement |
|
This Agreement shall take effect upon User accepting this
Agreement and this Agreement shall replace all previous agreements. This
Agreement forms the entire understanding between the parties hereto and
all other statements, representations and warranties in relation to the
Service whether expressed or implied by statute, law or otherwise howsoever
are hereby excluded. |
| 6.4 |
Personal Data |
|
User hereby authorises QPI to release and supply Personal
Data of User to the Stock Exchange of Hong Kong Ltd. and other exchanges
and specialist data providers in connection with the provision of the Service
and Content to User pursuant's to this Agreement. |
| 6.5 |
Governing Law and General Provisions |
|
The validity construction and performance of this Agreement
shall be governed by the laws of Hong Kong Special Administrative Region
and both parties hereby submit to the non-exclusive jurisdiction of the
courts of the Hong Kong Special Administrative Region. |
