ASPEN SOFTWARE PRODUCT
End-User License Agreement
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF ASPEN SERVICE, WHICH CONSISTS OF A SOFTWARE PROGRAM AND DATA FEED FROM VARIOUS DATA SUPPLIERS AS CONTAINED THEREIN, (“SERVICE”), YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR, THE PROVISIONS ON: TRANSFERABILITY IN SECTION 6; DISCLAIMER IN SECTIONS 8; LIMITATION OF LIABILITY IN SECTION 9; AND CONNECTIVITY AND PRIVACY IN SECTION 10. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN, NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOU HAVE FULL FREEDOM IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT OR NOT. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SERVICE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICE.
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This is an agreement (the “Agreement”) to license the SERVICE from ThaiQuest Limited, 888/180 Ploenchit Road, 18th Fl., Mahatun Plaza Building, Lumpini, Patumwan, Bangkok 10330 (“ThaiQuest), to you (“Subscriber”).
- System Requirements
In order to use the SERVICE, The Subscriber is required to have internet access and a device with the necessary minimum specifications of software and hardware requirements, which can be found on the product’s official website.
The version of the SERVICE may be upgraded from time to time to add support for new functions and services, and consequently, the minimum specifications may be altered from time to time.
- Grant of Rights
2.1 SERVICE License: Subject to these terms and conditions, ThaiQuest grants to Subscriber a limited non-assignable, non-transferable, non-sub-licensable, non-exclusive license to use the SERVICE. Subscriber acknowledges that use of the SERVICE may require a password, software key or other devices or mechanism from ThaiQuest, designed to prohibit unauthorized use of the SERVICE. Subscriber may not sell, lease, transfer, assign, encumber or license the SERVICE to a third party without prior written consent of ThaiQuest. Subscriber may not copy (except as allowed herein), modify, decompile, reverse engineering, or make derivative works of the SERVICE, except as and only to the extent any if the foregoing restrictions is prohibited by applicable law. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT A BREACH OF ANY OF THE TERMS OF THIS PARAGRAPH SHALL BE MATERIAL BREACH OF THE AGREEMENT AND SHALL PERMIT THAIQUEST TO TERMINATE THE AGREEMENT.
2.2 Data License:
(a) Subject to these terms and conditions, ThaiQuest grants Subscriber a limited non-assignable, non-transferable, non-sub-licensable, non-exclusive license to use, display, transmit, and distribute the data in the SERVICE provided by ThaiQuest.
(b) Except as expressly authorized by ThaiQuest in writing, Subscriber shall not resell, sublicense, retransmit, redistribute, display or exhibit the data in the SERVICE, or any part thereof, in any media now existing or hereafter developed. ThaiQuest reserves the right to make changes from time to time in the data provided by ThaiQuest, or in data communications (including method or means of delivery) without notice to Subscriber, provided that ThaiQuest shall give notice to Subscriber of changes that significantly affect Subscriber’s access to the data in the SERVICE.
(c) Subscriber shall not redistribute, republish or provide any data contained in the SERVICE to any third party. Subscriber shall not use index data from exchanges as a basis for any financial instruments.
(d) Subscriber acknowledges that ThaiQuest receives certain data from third parties and agree that, if receipt of such data by ThaiQuest is terminated for any reason, ThaiQuest shall have the right to terminate transmission of such data to Subscriber and to provide substitute products hereunder.
(e) Subscriber acknowledges and agrees that the data in the SERVICE and related services are wholly advisory in nature and all actions and judgments taken with aspect of the data and such services are Subscriber’s sole responsibility. THE DATA IN THE SERVICE AND RELATED SERVICES ARE PROVIDED “AS IS BASIS” WITHOUT LIMITING THE FOREGOING, THAIQUEST MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE RELIABILITY, TIMELINESS, COMPLETENESS, PREDICTIVE VALUE OR ACCURACY OF THE DATA, AND NEITHER THAIQUEST NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS SHALL BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN THE DATA OR RELATED SUCH SERVICES.
(f) To avoid any doubt, “Non-professional Subscriber” in this agreement means a natural person who:
– is subscribing to the service in a personal capacity;
– is not registered or qualified as a professional with any national or state exchange, regulatory body of professional association;
– does not act in any capacity as an investment advisor or a principal, officer, partner, employee or agent of any business, nor on behalf of any individual;
– uses the Indices data/values solely to manage the his/her own investment purposes and not for any business purposes;
“Professional Subscriber” in this agreement means all other natural persons, proprietorship, corporation, partnership, or other entity whatsoever who do not meet the definition of Non-professional Subscriber.
“Subscriber” in this agreement encompasses all Non-professional Subscriber and Professional Subscriber.
(g) The data in the SERVICE is licensed only for personal use of Non-professional Subscriber and the internal business use and/or personal use of Professional Subscriber.
(h) By representing to ThaiQuest that Subscriber is a non-professional, or by continuing to receive the data at a non-professional subscriber rate, Subscriber warrant and represent to ThaiQuest that Subscriber meets the definition of Non-Professional Subscriber as set forth in clause 2.2 (f) above.
(i) The Subscriber shall also provide succinct information and/or document as ThaiQuest may reasonably require in order to confirm the fulfillment of the warranties and representations specified in clause 2.2 (f) and shall inform ThaiQuest in writing within 7 days upon the breach thereof.
(j) The Subscriber agrees that fulfillment of the above warranties and representations shall be conditions for the Subscriber’s exercise of rights hereunder.
2.3 The Subscriber understands that by using any of the Services, the Subscriber may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, the Subscriber agrees to use the Services at the Subscriber’s sole risk and that ThaiQuest shall not have any liability to the Subscriber for content that may be found to be offensive, indecent, or objectionable.
2.4 ThaiQuest reserves the right to implement new and different prices, features, licensing terms, or other characteristics for any future releases.
- Consent to Use of Data
The Subscriber agrees that ThaiQuest may collect and use technical data and related information, including but not limited to, technical information about the Subscriber device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to the Subscriber (if any) related to the SERVICE. ThaiQuest may use this information, as long as it is in a form that does not personally identify the Subscriber, to improve its products or to provide services or technologies to the Subscriber.
- SERVICE Usage
4.1 The Subscriber shall pay the fees stated at the time of purchase for the subscription of the SERVICE usage. Upon the completion and the receipt of full payment from the Subscriber, ThaiQuest will provide a username and a password for the usage of the SERVICE to the Subscriber.
4.2 The username and password given to the Subscriber shall be valid for certain amount of time stated at the time of purchase.
4.3 The SERVICE shall be used within Thailand only.
4.4 In the event that ThaiQuest is unable to provide the usage of the SERVICE for any reason, ThaiQuest reserves the right to cancel or stop the SERVICE services. In such event, Subscriber agrees that ThaiQuest shall not be liable to any loss, damages, claims or costs whatsoever, including any consequential, indirect or incidental damages, any lost profits or lost savings or any damages aside from the liability to refund Subscriber for the remaining subscription period only.
- Term of the Agreement;
5.1. This agreement shall be valid until terminated pursuant to the provision herein.
5.2. ThaiQuest may, on 30 days written notice, terminate this agreement.
5.3. ThaiQuest, in its sole discretion, may terminate this agreement after 10 days written notice to the Subscriber of a material breach by Subscriber of any of the terms and conditions of the agreement, provided Subscriber has not cured such breach within the period specified in the notice.
5.4. ThaiQuest may terminate this agreement with an immediate effect if so instructed by its Licensors or data suppliers.
5.5. ThaiQuest may, upon giving 30 days written notice, assign any of its rights or obligations under this agreement to a third party or successor company. The Subscriber is deemed to have consented to such assignment.
- Restrictions on Transfer
6.1. The SERVICE SHALL BE USED BY THE SUBSCRIBER ONLY IN A MANNER EXPRESSLY PERMITTED BY AND CONSISTENT WITH THIS AGREEMENT, AND SOLELY FOR THE SUBSCRIBER’S OWN USE.
6.2. The Subscriber shall not sublicense, sell, give, transfer or otherwise make available the SERVICE or any copy and/or part thereof to any third party or to the public domain. The Subscriber shall not copy, modify, decompile, disassemble, or reverse engineer any part or whole of the SERVICE or its associated products, nor permit anyone else to do so. The Subscriber shall not make or distribute any derivative work from the SERVICE or associated products, nor use the SERVICE or its associated products as part of any other product, service or system, unless specifically authorized in writing by ThaiQuest.
6.3. The Subscriber acknowledges that any breach of any of the provisions of this Section 6 will cause ThaiQuest irreparable damage, and may be enjoined, in addition to any other rights and remedies that may be available to ThaiQuest in law or equity. The Subscriber also acknowledges that its breach of this Section 6 will cause serious damage to ThaiQuest including termination of the relevant agreements between ThaiQuest and ThaiQuest’s licensors or suppliers and increase in the licensing fees payable by ThaiQuest to ThaiQuest’s licensor or suppliers. The Subscriber shall be liable for all reasonable damages caused to ThaiQuest from the Subscriber’s breach.
6.4. ThaiQuest hereby reserves any and all rights in or to the SERVICE not expressly granted herein to the Subscriber.
- Intellectual Property
7.1 For purposes of this agreement, “intellectual property” shall mean copyrights, patents, moral rights, trademarks, trade names, service marks, know-how, data, flow chart, algorithm, feature, function, look and feel, screen color, screen display arising out of the software program under this agreement, or any other proprietary rights arising or enforceable under the laws of Thailand.
7.2 The Subscriber recognizes and agrees that the intellectual property rights in the SERVICE, including reproductions, corrections, enhancements and modifications, are the property of ThaiQuest, or property which ThaiQuest is properly licensed or authorized to use and sublicense.
7.3 The Subscriber agrees that as a condition of using the SERVICE, the Subscriber shall not assert copyright or any other form of proprietary interest in any work created using the SERVICE functionalities and capabilities, regardless of otherwise applicable law. Notwithstanding the foregoing, the Subscriber may use screen captures and printouts of works created using the SERVICE functionalities and capabilities, with attribution to ThaiQuest.
7.4 If the Subscriber violates Section 6: Restrictions on Transfer, or any other provisions of this agreement, then in addition to other remedies available to ThaiQuest, the Subscriber agrees to defend, indemnify, and hold ThaiQuest harmless from and against any and all claims, demands, damages and costs arising from any third party’s claims that the Subscriber’s use of the SERVICE has violated any intellectual property rights of any such third party.
7.5 The Subscriber shall not apply in any jurisdiction for registration of trademarks, service marks, or any other marks similar to or identical with those of ThaiQuest, whether registered or not, which are or will be used by ThaiQuest in the course of ThaiQuest’s trade. The Subscriber shall also not seek copyright, patent or trade secret protection in any jurisdiction for the same or similar subject matter of the SERVICE.
It is understood and agreed that the SERVICE is developed from software and data as supplied to ThaiQuest by ThaiQuest’s licensors and data suppliers and that ThaiQuest has no control over the said software and data. As such, ThaiQuest provides no warranty that the SERVICE is fit for any purpose or that the data contained therein is accurate, correct and complete, and the SERVICE is provided hereunder “As Is Basis.” The Subscriber is solely responsible for determining the suitability of the SERVICE and/or any other of ThaiQuest’s associated products and services for Subscriber’s own purposes, and Subscriber assumes all risks associated with the acquisition, use, and continued use of the SERVICE and associated products and services of ThaiQuest as well as the data therein. The provisions of Sections 8 and 9 shall survive the termination of this agreement, howsoever caused, though this does not imply or create any continued right to use the SERVICE after termination of this agreement.
- Limitation of Liability
THAIQUEST, ITS AFFILIATES, LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE TO THE SUBSCRIBER FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SUBSEQUENT DAMAGES ARISING OUT OF THE SUBSCRIBER’S USE OR MISUSE OF, OR INABILITY TO USE OF THE SERVICE, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF THAIQUEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. IN ANY EVENT, THAIQUEST’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, LICENSORS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY THE SUBSCRIBER TO THAIQUEST FOR THE SOFTWARE, IF ANY. ThaiQuest is acting on behalf of its affiliates, Licensors and suppliers for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose.
- Internet Connectivity and Privacy
10.1 The SERVICE may cause the Subscriber’s device to automatically connect to the Internet, or to communicate with website or domain own by ThaiQuest to provide the Subscriber with additional information, features and functionality, or for any other purpose. Accordingly, in order to obtain such additional information, features and functionality, the Subscriber must log onto the SERVICE account.
10.2 Each time the Subscriber log onto the SERVICE account, ThaiQuest may automatically update the Subscriber’s software prior to presenting the Subscriber with interactive screens.
10.3 When the Subscriber uses the SERVICE to request data, this will create a record that such data have been requested by the Subscriber and, if applicable, were delivered to the Subscriber. Such records are kept by ThaiQuest for the sole purpose of troubleshooting problems with the Subscriber’s use of the software, at the Subscriber’s request for technical assistance. ThaiQuest undertakes not to use such records for any other purpose, other than as required by governing authorities, or anonymously for statistical purposes involving no personally identifiable information about the Subscriber.
10.4 When the Subscriber elect to store the Subscriber’s work product using the SERVICE, such as charts and tables, the files comprising such work product may reside on ThaiQuest’s servers for access by the Subscriber when the Subscriber next log onto the Subscriber’s account and wish to use them. ThaiQuest undertakes not to review the contents of such files for any purpose, or to make them available to any third party, other than as required by governing authorities.
10.5 The provisions of Sections 8 and 9 (Disclaimer and Limitation of Liability) expressly apply to this Section 10.
10.6 The Subscriber agrees that information of the Subscriber may be stored and used by ThaiQuest or other person authorized by ThaiQuest for the purpose of compliance with and enforcement of this agreement.
- Online Services Provided by Third Parties
The SERVICE may facilitate the Subscriber’s access to websites maintained by third parties offering goods, information, software and services (“Third-Party Online Services”). the Subscriber’s access to and use of any Third-Party Online Services is governed by the terms, conditions, disclaimers and notices found on such site or otherwise associated with such Third-Party Online Services. ThaiQuest may at any time, for any reason, modify or discontinue the availability of any Third-Party Online Services. ThaiQuest does not control or accept responsibility for Third-Party Online Services. Any dealings between the Subscriber and any third party in connection with a Third-Party Online Service, including such party’s privacy policies and use of the Subscriber’s personal information, delivery of and payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the Subscriber and such third party.
The term “Confidential Information” means any and all information revealed by ThaiQuest to Subscriber relating in any way to the business, products, software, data, and/or services of ThaiQuest or its affiliates, which information is of value to ThaiQuest or its affiliates because it is not generally known, and which is the subject of reasonable efforts to maintain its confidentiality, including, without limitation, sketches, models, samples, software, technical information, discoveries, ideas, inventions, and pricing information; unless Subscriber can prove that the information: (i) is part of the public domain through no fault of Subscriber; (ii) was received by Subscriber from a third party as a matter of right without any restriction on disclosure; or (iii) was developed by Subscriber and was possessed by Subscriber prior to the receipt thereof from ThaiQuest. Information disclosed to Subscriber by ThaiQuest shall not be deemed to be non-confidential merely because the information is embraced by more general information in the public domain or in the possession of Subscriber. The Confidential Information is being revealed by ThaiQuest to Subscriber in strict confidence solely in furtherance of the transactions contemplated herein. Subscriber shall not use or disclose any of the Confidential Information provided by ThaiQuest for any other purpose whatsoever. Subscriber shall not take or cause any action, or make or cause to be made any omission, which would be inconsistent with or tend to impair the rights of ThaiQuest in the Confidential Information.
- Manuals, Brochures, Instructions
Any and all operating manuals, instructions, brochures, warnings or the like concerning the goods, software or services supplied are supplied as an aid to Subscriber and are not represented to be accurate, complete or sufficient.
This license is effective until terminated by ThaiQuest or the Subscriber. The Subscriber’s rights under this license will terminate automatically without notice from ThaiQuest if the Subscriber fails to comply with any term(s) of this license. Upon termination of the license, the Subscriber shall cease all use of the SERVICE and destroy all copies, full or partial, of the SERVICE.
- General Provisions
15.1 ThaiQuest shall not be liable for any damage as a result of any delay or failure to deliver or perform due to any act of God, act of Subscriber, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown or other labor difficulties, war, riot, delay in transportation, defaults of common carriers, inability to obtain necessary labor, materials or service facilities or without limiting the foregoing, any other delays beyond ThaiQuest’s control. In the event of any such delay the date of delivery or performance shall be extended for a period equal to the time lost because of the delay.
15.2 Any notice, consent, approval or communication to Subscriber in relation to this agreement shall be sent to Subscriber’s email address provided upon registration or published on ThaiQuest’s website. Notices shall be deemed given on the date such notices are delivered or published electronically. Notices delivered to the receiving party electronically or published on ThaiQuest’s website shall be deemed written notices.
15.3 The parties shall use their best efforts to settle any differences they may have in an amicable and expeditious manner. Any dispute which cannot be so settled shall be referred to and decided by the courts of Thailand.
15.4 If any provision or any part of the provision of this agreement is held to be invalid or unenforceable by the laws or the court’s judgments, such invalidity or unenforceability shall be limited to only the said provision or part of provision and it will not affect the validity or enforceability of the remaining parts or provisions of this agreement, which will remain valid and enforceable according to its terms. ThaiQuest shall consider in good faith and offer similar parts and provisions to replace the invalid or unenforceable parts and provision to the Subscriber’s consideration.
15.5 Any waiver by either party of any rights arising from a breach of any covenants or conditions of this agreement must be in writing. Any waiver not in writing shall not be construed as a continuing waiver of other breaches of the same nature or other covenants or conditions of this agreement.
15.6 This Agreement constitutes the entire agreement and contract of ThaiQuest and Subscriber on the subjects covered herein and contains the final, complete and exclusive statement of representations made by ThaiQuest. ThaiQuest shall not be bound by any representation, promise or inducement of any kind unless set forth herein, nor shall it be bound by any representation made herein except to Subscriber. No waiver, alteration or modification of any of the provisions hereof shall be binding upon ThaiQuest unless in writing and signed by a duly authorized officer of ThaiQuest and Subscriber.
15.7 This agreement and any dispute relating hereto shall be governed by the laws of Thailand.