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Service Agreement Terms & Conditions (last updated 23 September 2019)

 

SERVICE AGREEMENT TERMS AND CONDITIONS

Both Infocast and Subscriber agree to be bound by all the Terms and Conditions hereof.

 

1. DEFINITIONS

 

  1. “License” refers to Infocast granting Subscriber a subscription-based license to use the Eligible Software for the Commercial Use and for the duration of the Term.

  2. "Eligible Software" means the services of the source code of software and data with the necessary support and maintenance services and equipment for the receipt of the services as specified in the Schedule of Services and Equipment.

  3. "Commercial Use" means the specific purpose of generating revenue by providing access to the Eligible Software through a Commercial Solution(s).

  4. "Term" means the time period in which the Eligible Software may be used for Commercial Use.

  5. "Commercial Solution" means a computer, mobile, website or Internet web application developed by Subscriber that enables Subscriber’s customers to access and use Eligible Software.

  6. “Service Effective Date” means the first date on which the Eligible Software is made available to Subscriber, which shall be the Service Effective date in the Schedule of Services and Equipment.

  7. “Party” means either Infocast or Subscriber, and “Parties” means both Infocast and Subscriber.

 

2. GRANT OF SUBSCRIPTION LICENSE

  1. Infocast grants Subscriber a subscription-based License to use the Eligible Software for the Commercial Use and for the duration of the Term.

  2. For Application Service Provider (ASP) services, no physical or intangible copy of the Eligible Software is granted by the License.

  3. This License is limited by the provisions of this Agreement, personal to Subscriber, non-perpetual, non-exclusive and non-transferable to any other parties unless otherwise stated within these Terms and Conditions.

  4. Infocast and Subscriber shall have the right to review and approve changes to the Terms and Conditions of this Agreement through Addendum(s) to this Agreement.

  5. Additional Eligible Software may be added to the License during the Term for its duration through Addendum(s) to this Agreement.

  6. Minor variation to the subscription such as adjusting Charges and/or the number of subscribed Licenses may be conducted via written notice without Addendum as permitted by this Agreement.

 

3. SUPPORT AND MAINTENANCE SERVICES

 

  1. Support and Maintenance Services shall be granted together with the License, and shall be provided for the complete duration of the License. A Service Level Agreement (“SLA”) is included in this Agreement.

 

4. TERM

 

  1. This Agreement is valid from the signing date. The License shall commence from the Service Effective Date and shall be effective for an initial term as specified on the Agreement document (“Initial Term”). In addition, if stated on the Agreement document, the Agreement may be automatically renewed after the Initial Term on a rolling basis (“Renewed Term”) (together referred to as the “Term”).

  2. If the Parties agree to an Addendum to this Agreement, the Service Effective Date and Term of the Addendum shall supersede that of this Agreement, unless otherwise specified.

 

5. TERMINATION

 

  1. The Agreement cannot be terminated for convenience during the Term. If the Agreement has automatic renewal, either Party may cancel the automatic renewal, by way of providing the other Party with written notice prior to the end of the Term, the exact amount of prior written notice is specified in the Agreement, and the termination shall be effective when the Agreement expires at the end of the then-current Term. If the Agreement does not have automatic renewal, the Agreement shall expire at the end of the Term unless otherwise agreed by the Parties.

  2. This Agreement may not be terminated at any time except for in the following circumstances:

    1. Infocast terminates this Agreement following a material breach of this Agreement by Subscriber;

    2. Subscriber terminates this Agreement following a material breach of this Agreement by Infocast;

    3. Either Party terminates this Agreement pursuant to any other applicable Terms and Conditions of this Agreement; or

    4. The Parties terminate this Agreement by mutual written agreement.

  3. Upon termination Infocast shall revoke/repudiate the License to Subscriber, and Subscriber shall be prohibited from accessing or using the License, Eligible Software, Services and Equipment.

  4. Upon termination of this Agreement, Subscriber shall return all Equipment to Infocast in good and serviceable condition, if applicable.

  5. The above termination notice period shall also apply to partial termination.

 

6. CHARGES

 

  1. Subscriber shall pay Infocast a deposit specified in the Schedule of Services and Equipment prior to the commencement of installation to secure the due performance of the obligations of the Parties under this Agreement. If Subscriber is in breach of this Agreement, the deposit paid shall be partially or fully forfeited as for liquidated damages depending on the situation. Upon termination of this Agreement with Subscriber having fully performed its obligations, this deposit shall be refunded without any interest within one (1) month.

  2. All Once-Off Non-Recurring Charges shall be billed upon contract sign-off, or as soon as practicable.

  3. Monthly (Recurring) Charges as indicated on the Schedule of Services and Equipment are billed to Subscriber quarterly in advance after the Service Effective Date. For the purpose of billing, Infocast’s calendar quarters end on 31 March, 30 June, 30 September and 31 December, and bills shall be calculated on a pro rata basis.

  4. Subscriber shall pay all costs agreed with Infocast upon presentation of invoice. Subscriber acknowledges that Infocast collects from Subscriber all royalties and fees imposed by exchanges, infrastructure providers and data contributors, and acknowledges that these fees may change from time to time and may be reflected in the changes to the Monthly (Recurring) Charges according to this Agreement.

  5. Infocast reserves the right to adjust the Monthly (Recurring) Charges by giving three (3) months’ prior written notice to Subscriber. The adjustment shall take effect upon the Renewed Term and shall be invoiced accordingly. In this case, Subscriber is allowed to terminate the services by cancelling the automatic renewal of the Term by giving not less than one (1) month prior written notice to Infocast.

  6. If no payment is received from Subscriber within one (1) month of the due date, Infocast reserves the right to charge a finance charge (as reinstatement fee for lapsed payment) or to terminate the License for material breach. A finance charge of 2% per month on the payable amount may be imposed at the discretion of Infocast.

  7. Levies shall be billed in full on a complete monthly basis. All other Charges are billed on a pro-rata basis.

 

7. TITLE AND PROPERTY RIGHT

 

  1. Subscriber acknowledges that the title to, copyright and all other intellectual property rights (including foreground and background intellectual property rights) and proprietary rights in the License and Eligible Software shall remain vested with Infocast.

  2. Subscriber shall be prohibited from performing any development, customization or modification to the Eligible Software without the prior written approval of Infocast.

  3. Subscriber shall be responsible for the proper care and safeguarding of the License and/or Eligible Software, and shall indemnify Infocast against all loss of or damage to the same.

 

8. RESTRICTION ON USE

 

  1. The License provided by Infocast is solely and exclusively for the use of Subscriber only and shall not be sublicensed or re-distributed to any third party without the prior written approval of Infocast and/or according to the Assignment provision.

  2. Subscriber shall not use the License for any illegal purpose or in any manner inconsistent with the Terms and Conditions of this Agreement.

  3. Subscriber shall not use and/or access the License through any medium or equipment which has not been authorized by Infocast in writing.

  4. Subscriber shall not attempt to modify and/or interfere with the License without the prior written consent of Infocast.

  5. The License may not be reproduced, recirculated, redistributed or published by Subscriber, except for Commercial Use, without the prior written consent of Infocast.

 

9. ACCESS TO PROPERTY

 

  1. Infocast reserves the right to designate any person(s), at an agreed-upon time with Subscriber, to access the Eligible Software and/or Equipment for the purposes of installation, inspection, upgrade, maintenance, repair, removal and to ascertain the use of the License by Subscriber.

 

10. WARRANTIES

 

  1. Infocast hereby represents, warrants and undertakes to the Subscriber that:-

    1. Infocast has all rights and authority necessary to perform its obligations under this Agreement;

    2. The License is free of any inherent contaminating, destructive, malicious or unauthorized properties;

    3. Infocast is not aware that the License infringes upon any intellectual property rights or any other rights of any third party. However Infocast cannot guarantee the absence of such third party rights. Conditionally upon the Subscriber promptly giving notice to Infocast of any claim of alleged infringement and allowing Infocast to have sole control of negotiations on and any defence of the claim, Infocast shall at its own discretion and at its own cost either compromise or defend the claim and shall hold Subscriber harmless and free of liability or obligation from any resulting final judgment, order or settlement. Subscriber shall grant Infocast the right to replace or change the Eligible Software or any part thereof so as to avoid infringement and Subscriber shall accept the corresponding changes to the License, provided that the changed Eligible Software can perform substantially the same functionalities as the Eligible Software or the relevant part thereof.

 

11. RELOCATION

 

  1. Infocast shall help to relocate the License, partially or entirely, at the cost of Subscriber. Scheduling of such relocation shall be contingent on availability of communication lines, facilities, equipment and labour. Subscriber acknowledges that temporary interruption of License might result from such relocation, and Infocast shall not be held liable for such reasonable interruption.

 

12. BREACH

 

  1. Violation by a Party of any Terms and Conditions contained in this Agreement and without sufficient remedy within ten (10) days constitutes a material breach of this Agreement. The non-breaching Party may at its discretion extend the remedy period with written notice to the breaching Party and in consideration of any remedial action being undertaken by the breaching Party.

  2. All costs for termination by material breach shall be borne by the breaching Party.

  3. Infocast, at its discretion, may choose to temporarily or permanently suspend the License to Subscriber for material breach.

  4. In the event of a material breach by Subscriber, Subscriber shall pay to Infocast as liquidated damages (and not as a penalty) an amount equal to the Monthly (Recurring) Charge times the number of months remaining in the then-current Term at the time of breach.

 

13. INDEMNITY

 

  1. The License, Eligible Software, Support and Maintenance Services, Services and Equipment are provided “as is”.

  2. Infocast shall defend, indemnify and hold harmless Subscriber from and against any loss, liability, cost or expense, including legal fees, that may be incurred by Subscriber against any failure of Infocast to fulfill its Warranties.

  3. Subscriber shall defend, indemnify and hold harmless Infocast from and against any loss, liability, cost or expense, including legal fees, that may be incurred by Infocast against the following:

    1. Any willful misconduct or gross negligence of Subscriber or its respective officers, directors, employees, affiliates, subsidiaries and/or agents; or

    2. Any claim against, or any error, omission or defect in, Subscriber-developed Commercial Solutions or other non-Infocast-developed services that affects the License in a manner beyond the direct control of Infocast.

  4. The Party seeking indemnity shall do the following:

    1. Promptly notify the other Party when seeking indemnification;

    2. Give the other Party control of the defense, negotiations or settlement of any claim; and

    3. Co-operate fully in the defense of the claim if requested at the other Party’s expense.

 

14. LIMITATION OF LIABILITY

 

  1. Infocast shall endeavour to provide the highest possible reliability of the License. Subscriber acknowledges that temporary interruption of License and/or Support and Maintenance Services might result from regular planned maintenance, special unplanned maintenance, Force Majeure events and/or other circumstances beyond the control of Infocast, and Infocast shall not be held liable for such interruption.

  2. Infocast and all data contributors do not warrant the correctness or completeness of any program, data and other information in connection with the License and/or Eligible Software. Infocast does not represent, claim responsibility or warrant that the License, Eligible Software, Support and Maintenance Services, Services and/or Equipment will be accurate, timely, uninterrupted or error free. Infocast shall make best efforts to rectify any such problems upon notice.

  3. Infocast shall not be held liable for any economic losses caused by the negligence of Subscriber, Subscriber’s employees, subcontractors, agents, equipment vendors or otherwise, arising out of the improper use of the License.

  4. To the extent permitted by Law, it is agreed that the liability of Infocast for any damages, regardless of the form of action, shall not exceed one (1) time the Monthly (Recurring) Charges payable by Subscriber, and that this shall be Subscriber’s exclusive remedy.

  5. Disclaimer notices from market data providers shall apply, including from the Hong Kong Exchanges and Clearing Ltd. (HKEX):

HKEX endeavours to ensure the accuracy and reliability of the information provided to Infocast and its clients, 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.

 

15. ASSIGNMENT

 

  1. This Agreement may be assigned by Infocast to any of its associate companies or to a successor in continuance of the License with written notice to Subscriber.

  2. Subscriber may not assign this Agreement or any provisions of this Agreement to any of its associate companies, including subsidiaries, or to a successor without the prior written consent of Infocast. Subscriber acknowledges that Infocast may impose additional charges if consent is given.

 

16. CONFIDENTIALITY

 

  1. Subscriber acknowledges that the License constitutes and contains confidential, proprietary and copyrighted information, and agrees to not, directly or indirectly, without Infocast’s prior written consent, use the information for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate such information to a third party, or permit any third party to use such information.

 

17. COMPLETE AGREEMENT

 

  1. This Agreement constitutes the sole and complete agreement of the Parties as to the subject matter set forth herein and supersedes any previous oral or written agreements, understandings, and arrangements between the Parties relating to such subject matter and the Terms and Conditions of this Agreement.

  2. Any modification(s) or amendment(s) to this Agreement must be in writing and signed by authorized representatives of the Parties.

 

18. GOVERNING LAW

 

  1. This Agreement shall be construed and governed in accordance with the Laws of the Hong Kong Special Administrative Region. Infocast and Subscriber, their successors and assigns, shall submit to the jurisdiction of the Courts of Hong Kong with respect to any legal proceedings that may result from a dispute as to the interpretation or breach of any of the Terms and Conditions of this Agreement.

  2. This Agreement shall be explicitly affected by the following Hong Kong Ordinances:-

    1. The Contracts (Rights of Third Parties) Ordinance (Cap. 623) shall not apply to this Agreement, and no person other than the Parties shall have any rights under it;

    2. The Prevention of Bribery Ordinance (Cap. 201) shall apply to this Agreement, and the Parties shall not authorize, condone or approve the conferring of bribes, undue advantage, improper gratifications, gifts and/or payments;

    3. The Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (Cap. 615) shall apply to this Agreement, and the Parties shall not undertake any laundering of money.

 

19. ADDITIONAL MARKETS

 

  1. Supplementary Terms and Conditions shall be agreed and signed by the Parties for the provision of market information from exchanges and/or data distributors other than HKEX.

20. NOTICES

  1. Written notice can be sent to Infocast via its Customer Service Center hotline by e-mail, registered mail or fax.

    1. E-mail: cs@infocast.com.hk​

    2. Mail: Unit 1605, 16/F, One Harbourfront, 18 Tak Fung Street, Hunghom, Kowloon, Hong Kong

    3. Fax: (852) 2975 8098

  2. For enquiries​, contact the Customer Service Center at (852) 2589 9500.

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SERVICE LEVEL AGREEMENT

 

This Service Level Agreement (“SLA”) is valid for the Subscriber during the Term. Scope shall generally include customer support service, incident management and resolution of errors.

 

1. SERVICE LEVEL

  1. Service Period: Monday to Friday from 08:30 to 18:00 (except Hong Kong public holidays)

  2. System Availability Service Level: At least 99%

  3. On the Phone Response Time: Within 1 hour

  4. Fixing Time: Within 12 hours

 

Service Period shall be inclusive of all deployed markets, extending to the aggregate of the specified time periods in the local time-zones of the markets. Service may be unavailable during force majeure events such as Typhoon Signal 8 or Black Rainstorm Warning. This SLA may not apply in the event of providing services for an obsolete system version pursuant to an enforced/mandatory system upgrade from the software vendor, including Infocast and other 3rd party software vendors, such as end-of-version support.

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SUPPLEMENTARY TERMS AND CONDITIONS FOR DISTRIBUTION OF MARKET DATA FROM CHINA INVESTMENT INFORMATION SERVICES LIMITED (CIIS) AND SHENZHEN SECURITIES INFORMATION COMPANY LIMITED (SSIC)

 

The following Supplementary Terms and Conditions (ST&C) shall apply for the distribution of CIIS and SSIC market data only, and shall supplement the existing Terms and Conditions (T&C) of the pre-existing Agreement. Both Infocast and Subscriber agree to be bound by all the Supplementary Terms and Conditions hereof. These ST&C shall prevail in the event of any conflict with the T&C.

 

1. ADDENDUM DATE AND TERM

 

The License shall commence from the Service Effective Date and is valid for the Term stated in the Schedule.

 

2. CHARGES

 

Infocast shall collect all fees from Subscriber pertaining to the distribution of CIIS market data.

 

3. RESTRICTION ON USE

 

Subscriber agrees to the following restrictions on the License as required by China Investment Information Services Ltd. and any third party providers who provide market information to China Investment Information Services Ltd. (together referred to as “CIIS”) and as required by Shenzhen Securities Information Co., Ltd. and any third party providers who provide market information to Shenzhen Securities Information Co., Ltd. (together referred to as “SSIC”):-

 

  1. To promptly comply with Infocast notice to cease misuse and assist Infocast to provide proof that it has ceased or never committed such misuse; 

  2. Not to use the License or any part thereof (directly or indirectly) for any of the following:-

    1. Undefined use not within the ordinary course of business;

    2. Illegal purpose;

    3. Unfair means; or

    4. Establishment of an off-market trading floor or service, deciphering of License for calculation of indices, and development of any financial instruments or investment products.

  3. Not to share, assign or sub-license the right prescribed herein.

 

4. LIMITATION OF LIABILITY

 

Disclaimer notice from the China Investment Information Services Ltd.:-

 

China Investment Information Services Ltd., it’s holding companies and/or any subsidiary of such holding companies and/or its third party content provider(s) endeavor to ensure the accuracy and reliability of the information provided but do not guarantee its suitability, availability, service level, timeliness, accuracy or reliability and accept no liability (whether in tort or contract or otherwise) for any loss or damage arising from any interruption, defect, error, delay, inaccuracies or omissions.

Disclaimer notice from the Shenzhen Securities Information Co., Ltd.:-

 

Shenzhen Securities Information Co., Ltd., it’s holding companies and/or any subsidiary of such holding companies and/or its third party content provider(s) endeavor to ensure the accuracy and reliability of the information provided but do not guarantee its suitability, availability, service level, timeliness, accuracy or reliability and accept no liability (whether in tort or contract or otherwise) for any loss or damage arising from any interruption, defect, error, delay, inaccuracies or omissions.

 

5. BREACH

 

Underreporting of fees by 5% or more (underpaid) shall constitute a breach of Agreement and Infocast reserves the right to charge a penalty finance charge of 4% per month on the outstanding payable amount.

 

6. INSPECTION

 

Subscriber acknowledges that Infocast may be legally required to provide the basic information of Subscriber and/or Subscriber’s end-users to CIIS and/or SSIC in the event of an infringement by Subscriber or the investigation by CIIS and/or SSIC of an alleged infringement by Subscriber.

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SUPPLEMENTARY TERMS AND CONDITIONS FOR DISTRIBUTION OF US MARKET DATA FROM CHICAGO BOARD OPTIONS EXCHANGE (CBOE)

 

The following Supplementary Terms and Conditions (ST&C) shall apply for the distribution of CBOE US market data only, and shall supplement the existing Terms and Conditions (T&C) of the pre-existing Agreement. Both Infocast and Subscriber agree to be bound by all the Supplementary Terms and Conditions hereof. These ST&C shall prevail in the event of any conflict with the T&C.

 

1. ADDENDUM DATE AND TERM

 

The License shall commence from the Service Effective Date and is valid for the Term stated in the Schedule.

 

2. CHARGES

 

Infocast shall collect all fees from Subscriber pertaining to the distribution of CBOE US market data. Therefore Infocast shall make payments to CBOE on behalf of Subscriber.

 

3. RESTRICTION ON USE

 

Subscriber shall sign and comply with a valid CBOE Data Feed Order Form (or equivalent) specifying:-

 

  1. “Infocast Limited” as the data vendor; and

  2. “External” and “Controlled” distribution.

 

4. LIMITATION OF LIABILITY

 

Subscriber may delegate certain administration processes to Infocast, including management of the business, billing, data and technical aspects of the CBOE US market data. 

Notwithstanding the above, Subscriber shall always remain solely liable to CBOE. Infocast accepts no liability to CBOE whatsoever.

 

5. CBOE REPORTING

 

Subscriber shall report the total number of end-user licenses to Infocast at least once per month for the purposes of reporting to CBOE.

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COPYRIGHT AND CONFIDENTIALITY NOTICE

All rights reserved, Infocast Limited. This material is confidential and proprietary to Infocast Limited, and no part of this material should be reproduced, published in any form or by any means, nor should the material be disclosed to third parties without the express written authorization of Infocast Limited.

 

Copyright & All Rights Reserved, 2019 Infocast Limited /  滙港資訊有限公司 © 2019 版權所有

(852) 2589 9552  /  helpdesk@infocast.com.hk  /  Unit 1605, 16/F., One Harbourfront, 18 Tak Fung St, Hunghom, Kowloon, Hong Kong, China