ASPEN SERVICES END-USER LICENSE AGREEMENT

 

ThaiQuest Limited (We) is an exclusive authorized distributor and service provider of Aspen Services (Service/Services) in Thailand.
PLEASE READ THIS AGREEMENT CAREFULLY.  BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THE SERVICE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT

1. GLOSSARY

Agreement: This Contract, any applicable forms and any other schedules or declarations referred to in these documents; Charges: The Service Fees and any related charges specified in clause 6.1; Contract: This document as amended or supplemented from time to time by us and mutually agreed by both parties; ThaiQuest Group: ThaiQuest Limited, any Holding Company and any Subsidiary of ThaiQuest Limited and any Subsidiary of any Holding Company of ThaiQuest Limited; Information: The information (in whatever form) contained in the Services; Information Provider: A client of ours or other third party including any stock, futures or commodities exchange, whose information is contained in the Services; Intellectual Property Rights: Any and all copyrights, patents, moral rights, trademarks, trade names, service marks, trade secrets, know-how, or any other proprietary rights arising or enforceable under the laws of the Territory;  Interactive Access: The capacity of an individual authorized or allowed by you to access and control the display of Information by any means, including without limitation, a password, an identifier, a keyboard or other control device; Limited Extract: A discrete piece of data which is quantitatively and qualitatively substantially less than an entire article of the Information; Maintenance: A sub-set of Support, which includes the use of reasonable efforts by us or our nominee to maintain the Materials in good operating condition and/or to restore the Service by repairing, correcting or replacing the Materials; Materials: Hardware and/or Software and related documentation supplied by us or our nominee; Password: A password and account name pursuant to which you may access the Services; Service/Services: The service(s) supplied by us under the Agreement, which include(s) the provision of Information and/or Materials and Support; Service Fees: The fees charged by us for the supply of the Services as specified in the relevant invoice(s), receipt(s) and/or related schedules, including fees for specialist data Services; Site: Any location of yours within the Territory to which the Services are supplied directly by us; Software: Software or any part of it and related documentation, whether it is an ancillary part of a Service and enables such Service to be used, or whether the rental of such software itself constitutes the Service.  Software also includes upgrades and enhancement; Support: Maintenance and other support provided by us or our nominee as specified in clause 4 of the Contract; System: Any system that is used to access and display data that may include Information; Territory: Thailand; Your System: Any System used by you where we do not control the number of Interactive Accesses of such data.

2. Services

2.1   You certify that you are a natural person subscribing to the Services in your individual and personal capacity to be classified as a non-professional user.

2.2   We will supply the Services to you at the Site and you will pay the Charges and use the Services in accordance with the Agreement.

2.3   We will assign you Password(s), which you will use to access the Services.

Each password we give you will be kept confidential by you.  If you learn or suspect that any Password has been revealed to any person not authorized by you to use the Services or any unauthorized person has access to the Services, you will immediately notify us.  We will then cancel the Password and assign a new Password to you.  You acknowledge that in these cases, we may impose additional security obligations on you.

2.4   You may use information internally and outside the Site as allowed in this Agreement.

2.5   Except as specified in clause 2.6  below, you may not duplicate, sell, license, distribute, publish, copy (by mirroring or otherwise), link (by hypertext connection or otherwise) or otherwise use or permit the use of all or any portion of the Services or the Materials.

2.6   You may: (a) review and download the Information for your own personal use; and(b) use Limited Extracts of the Information on an ad-hoc basis in response to your specific enquiries, provided that such extracts are attributed to the relevant Information Provider.

2.7   You acknowledge that Information Providers may have rights in Information which they supply.  You agree to comply with any restrictions or conditions imposed on the use, access, storage or redistribution of Information by the relevant Information Provider, as notified to you by us or by such Information Provider.

2.8   We retain control over the form and content of Services.  Although we may alter them from time to time, we will not without your consent change their fundamental nature.

2.9  If we initiate a change in the data and/or communication protocols or there is a change in the data format of Information, we will give you notice:

(a) 90 days prior to any such modification that requires an amendment to Your System software; and

(b) 180 days prior to any such modification which requires an amendment to Your System hardware,

where in either case such modification is to enable you to continue to receive the Service and will not interrupt the Service.  If such a change is initiated by an Information Provider, we may not be able to give you such notice, but we will give you as much prior notice as is reasonably possible.  At the end of the applicable notice period you agree that we may implement such modifications.

2.10  We will not supply and you will not use the Services in breach of any applicable laws, regulations or market conventions and you will not remove or conceal any copyright or other proprietary notice incorporated in the Services.

2.11  Apart from the Materials provided by us, you will be responsible for obtaining and maintaining all consents and licenses and making all filings necessary to receive or use the Services at the Site unless we advise you that you do not have to.

2.12  You will not acquire any intellectual property or similar rights in the Services, Information or Materials and you agree to comply with notices bringing such rights to your attention and all laws relating to such rights.

2.13  Information can only be used for your own personal and non-commercial purposes.  You will not use index data from exchanges as a basis for any financial instruments.

3. Materials

3.1  We own the Materials and all rights in the Materials or have obtained from a third party the right to supply them to you.  You agree that you will acquire no proprietary rights in the Materials.

3.2  It is your responsibility to provide necessary consumable items and a satisfactory operating environment for the Materials, as designated by us.

3.3  You will not: (a) dispose of or transfer the Materials; (b) remove the Materials from the Site; (c)  infringe any intellectual property or other similar rights in the Materials; (d) let the Materials become subject to any third party claims; (e) make any alteration, connection or interface to the Materials, except as permitted under the Agreement or as advised to you otherwise in writing; or (f) permit the Maintenance or repair of the Materials by a party other than our nominee.

3.4  On termination of all or part of the Agreement, you will return the Materials (and any copies) to us or deal with them as we may reasonably request.

3.5   We agree to indemnify you against any loss or damage, including litigation costs and expenses, you may suffer arising out of any claim by any third party that the use and/or possession by you of the Materials owned by us (and Materials proprietary to a third party owner provided by us) infringes a patent, copyright, trademark, trade secret or other intellectual property right of a third party, provided that: (a)       we and, if applicable, such third party owner are given immediate and complete control over any such claim and you co-operate with us and such third party owner at either our or such third party owner’s expense in the conduct of such claim; (b) you do not prejudice in any manner our, or such third party owner’s, conduct of such claim; and (c) the claim is not based upon the use of the Materials either in a manner for which they were not designed or authorized, or not in accordance with our instructions.

If such claim succeeds in restricting your use of the Materials, we will at our discretion either: (i) procure for you the right to continue to use such Materials; (ii) modify such Materials (if possible) so that they become non-infringing; (iii) replace such Materials with hardware or Software offering similar functions, provided such replacement Materials do not affect the fundamental nature of the Service; or (iv) if none of the above actions could provide relief, remove such Materials and refund to you the relevant part of the Service Fees already paid relating to the period after such removal.

The remedies specified in this clause 3.5 are your only ones in respect of any claim referred to in this clause 3.5.

3.6  We both agree that: (a) third party Materials are proprietary to their owner and are being sub-licensed to you by us; (b) the provisions in this clause 3 are also for the benefit of the owners of third party Materials; (c) you will protect the Materials against copying, disclosure or use by unauthorized persons; and (d) you will if required enter into a separate agreement with some third party Materials owners.

3.7  Following conditions are applicable only to Software.

(a)   We grant you a non-exclusive, non-transferable license to use the Software at the Site.  You agree that each copy of the Software will only be used for your own personal use on one designated central processing unit.

(b)   We grant you this license until termination of the Service(s) to which it relates.

(c) This Agreement restricts the use, duplication, dissemination, broadcast, and redistribution of the Software or copies thereof, either in whole or in part, by you.  THE SOFTWARE SHALL BE USED BY YOU ONLY IN A MANNER EXPRESSLY PERMITTED BY AND CONSISTENT WITH THIS AGREEMENT, SOLELY FOR YOUR OWN PERSONAL USE.

(d)   You will not license, sub-license, sell, give, transfer, disclose, display or otherwise make available the Software or any copy and/or part thereof to any third party or in the public domain. You will not attempt nor permit anyone else to copy, modify, decompile, recompile, disassemble, or reverse engineer any part or whole of the Software or its associated products except where otherwise provided by applicable law.  You will not make or distribute any other form or derivative work from the Software or associated products, or use the Software or its associated products as part of any other product, service or system unless specifically authorized in writing by the us.

(e)   You may make one (1) copy of the Software solely for backup and recovery purposes, and may transfer the Software to a single hard disk, provided that the original is kept only for your backup purpose.

(f)   You acknowledge that any breach of any of the provisions of this clause 3 will cause us irreparable damage, and may be enjoined through injunctive proceedings in addition to any other rights and remedies which may be available to us in law or equity.

(g)   We hereby reserve any and all rights in or to the Software not expressly granted herein to you.

3.8   When we supply you with Materials which we inform you can be operated on or in conjunction with your hardware and software, we both agree that:
(a) you may add your own application software to the Materials; (b) you may connect peripheral external devices (such as printers and modems) to the Materials; (c) although we wish to ensure compatibility, we do not guarantee that the Materials will perform satisfactorily with any hardware or software supplied by you; and (d)                you agree that we will not be responsible for any reduced performance of the Service or loss (including loss of data) or damage which is due to your adding to or accessing the Materials in conjunction with any system, software, data or equipment not provided by us.

3.9   We may increase disk loading and memory usage for our Software (whether such Software is running on hardware supplied by us or you.)  You understand this may have an effect on the performance of other software running on the hardware on which our Software is loaded.

3.10  We may, at our reasonable discretion, replace the Materials with hardware or Software offering similar functions, provided such replacement Materials do not affect the fundamental nature of the Service.

4. Support

4.1   Support will be provided only by us or our nominees unless we both agree otherwise in writing.  So that we can provide you with Support, by giving you a reasonable prior notice, you will arrange for us and/or our nominees to have access to the Site, and will provide all necessary co-operation and facilities.

4.2   The Support which we will provide consists of: (a) supplying and installing the Materials at the Site; (b) providing a reasonable level of training to you in the use of the Materials; (c) removing or relocating the Materials as required by you; (d) wherever available, providing on-line Support for the Services; (e) providing Maintenance; (f) providing modifications of Materials to Enhance Services; and (g) wherever available, providing you with consultancy services.

4.3   Maintenance included in the Service Fees is provided during our standard Maintenance hours but may be available outside our standard Maintenance hours on payment of a further Charge.

4.4   It is in both our interests to delineate clearly the Maintenance which is included in the Service Fees. The Service Fees do not include:

(a)    Maintenance required as a result of accident, negligence or misuse not attributable to us;

(b)    Maintenance resulting from failure of operating environment or causes other than ordinary use in accordance with our operating manuals;

(c)    Maintenance resulting from any attempt made to repair, service, relocate or modify the Materials by persons other than our personnel or our nominees;

(d)    Maintenance of non-current versions of the Materials where current versions have been made available to you, or Maintenance of current versions containing unauthorized modifications;

(e)    Maintenance of associated operating software.

(f)     Maintenance of, and Maintenance which is necessitated by the operation of, software or hardware not supplied by us;

(g)    Maintenance arising from overload of the network or hardware not caused by us; and

(h)    any visit to the Site requested by you where there is no fault or failure caused by the Materials.

4.5   We are under no obligation to undertake Maintenance in relation to the matters referred to in clause 4.4 although we may do so at our discretion and at your request at our then current rates.

4.6   We may modify the Materials to provide you with enhanced Services.  We will use reasonable efforts to: (a) make such modifications with the minimum of inconvenience to you; and (b) undertake such modifications during your normal work hours; and cause such modifications to result in a substantially similar or improved performance level from the Materials, subject to the constraints of the installed software.

4.7   We will give you the following prior notice of such modifications, which are to enable you to continue to receive the Services: (a) for a modification which requires you to amend your own software: 90 days; and (b) for a modification which requires you to replace a substantial amount of your own hardware: 180 days.

At the end of the applicable notice period, you agree that we will implement such modifications unless we have been notified by you that you do not wish to receive such modifications.  Clause 4.4 (d) will then apply.

4.8   You agree that: (a) The provision of an enhanced Service involving an upgrade of the hardware or operating system we supply may mean an increase in the Service Fees for such Service; and (b) It may be necessary from time to time for you to upgrade at your expense your own hardware, applications and/or network operating software to maintain compatibility with the Materials.

4.9   We may provide you with future Software releases by down-line loading.  To do so, we both agree that we may upload certain information about your network.  We undertake to keep such information confidential in accordance with any confidentiality provisions set out in the Contract.

4.10  We may remotely obtain entitlement data from the Software at your Site and Recipient Location. We will generate entitlement summary reports and provide them to the data feed provider monthly or on request.

4.11  We or our authorized agent or representative may, at your request, either remotely or directly access the Software at your Site to provide support (including installation, setup, troubleshooting, and operational information).

5. Commencement and Duration

5.1   The Agreement shall be valid through the term specified in the receipt issued to you.

6. Charges

6.1   You will pay the Service Fees and the following related charges (where applicable):

(a)   Installation, relocation and removal charges;

(b)   Charges for certain items of Support;

(c)   Charges for communication facilities;

(d)   Charges for Information, Software and/or other services provided by certain Information Providers and other third parties together with any administration costs incurred by us in relation thereto;

(e)   Charges for optional services specified in the invoice; and

(f)   All applicable taxes and duties (including value added tax and withholding tax but excluding income taxes imposed on our income) payable in respect of the Services, so that after payment of such taxes and duties the amount received by us is not less than the Service Fees and the charges referred to in this clause 6.1.

6.2   We will endeavor to provide reasonable prior notice of any change to the related charges referred to in clause 6.1, but you agree that they may change without notice if a change is imposed on us by any third party.

6.3   The Service Fees for each Service are payable from the date that the Service is first made available to you.  We will invoice you for the Charges as per terms and conditions.  You will pay the Charges in full within the time specified on the invoice.  Unless otherwise specified in the invoice, Charges are payable annually in advance.

6.4   We will promptly notify you of any adjustment of Charges for optional services in clause 6.1 (e).  You agree to pay for the adjusted Charges from the date such adjustment takes effect.

6.5   Notwithstanding clause 6.4, we will not adjust or change the Service Fees during the agreed term specified in the receipt issued to you.

7. Termination

7.1   Either of us may terminate the Agreement in whole or in part by written notice if the other is in breach of any of its material obligations under the Agreement and fails to remedy such breach (if capable of remedy) within, in the case of a breach by you of your obligations under clause 3.7, 72 hours and, in the case of any other breach by either of us, 30 days of written request.

7.2   Either of us may terminate the Agreement immediately and without notice if: (a) the other enters into bankruptcy or reorganization proceeding with its creditors; (b) an order is made for the winding up of the other; (c) an effective resolution is passed for the winding up of the other (other than for the purposes of amalgamation or reconstruction on terms approved by the first party (such approval not to be unreasonably withheld)); or (d) the other has a receiver, manager, planner or plan administrator appointed in respect of it.

7.3   In addition to the above, if you materially breach the Agreement, we may immediately suspend the Services in whole or in part without penalty until the breach is remedied.

7.4   We may cancel the Service or part of the Service, as the case may be, by reasonable prior written notice if the provision of all or part of that Service: (a) depends on an agreement between ThaiQuest Group member and a third party, and that agreement is modified or terminated for any reason or breached by the third party and as a result we are unable to continue to provide all or part of that Service upon terms reasonably acceptable to us; or (b)        becomes illegal or contrary to any rule, regulation, guideline or request of any exchange or regulatory authority.

7.5   In addition to the above, if we materially breach the Agreement, you may cease or suspend any payment of the Charges to us until the breach is remedied.

7.6   We may, on 6 months’ written notice, cease providing a Service if we withdraw it from the country where the Site is located.

7.7   If clause 7.4, or 7.5 applies, our obligation to you will be to refund the part of the Service Fees paid in advance for the cancelled part of the Service.

7.8   Upon expiration or termination of the Agreement in whole or in part, unless otherwise specifically agreed between you and us, you must delete any Software and Information contained in the terminated Services, and, if requested by us, certify the deletion in writing.

7.9   You agree that within 6 months after termination of the Agreement, we will be entitled to have access to the Site at any time during business hours to remove the Materials and to confirm deletion of any Software and Information.

7.10  The following will continue to apply after termination of the Agreement: (a) all disclaimers, indemnities and restrictions relating to the Services; and (b) the confidentiality undertaking in clause 10.

8. INTELLECTUAL PROPERTY

8.1   You recognize and agree that the Intellectual Property Rights in the Software and reproductions, corrections, enhancements and modification or any other Material thereof provided to you are (i) the property of ours or the property which we are properly licensed or authorized to use and sublicense; and (ii) are provided by us in confidence.

8.2   You are not entitled to any copyright, patent, trademark, service mark, trade name, intellectual property or proprietary or other rights in the Services, Information or Materials including, but not limited to, those arising from your exercising of your rights and/or your performance of your obligations and you agree to comply with notices bringing such rights to your attention and all laws relating to such rights. You hereby acknowledge and agree that such rights belong to, and are owned by us, Information Providers and/or third party suppliers as the case may be.

8.3   You agree that as a condition of using the Services, you will not assert copyright or any other form of proprietary interest in any work created using functionalities and capabilities of the Services, regardless of otherwise applicable law.

8.4   You will not remove or conceal any copyright or other proprietary notice incorporated in the Services.

9. LIABILITY

9.1   Although we will use all reasonable endeavors to ensure the accuracy and reliability of the Services and the Information provided.  Nonetheless, members of the ThaiQuest Group, Information Providers including securities exchanges, futures exchanges and commodities exchanges, and third party suppliers do not guarantee the accuracy and reliability and accept no liability (whether in tort or contract or otherwise) for any loss or damage arising from any inaccuracies, omission and errors in the Information, or for loss or damage in connection with the provision of or failure to provide the Services except as set out in clause 9.2.

9.2   We accept liability only for:(a) death or personal injury caused by our gross negligence or wilful misconduct; (b) physical loss or damage to the Site caused by our gross negligence or wilful misconduct; and (c)any other direct loss or damage caused by our gross negligence or wilful misconduct.

9.3   EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, WARRANTIES OR UNDERTAKINGS, WHETHER ORAL OR IN WRITING, IN LAW OR IN FACT, INCLUDING WARRANTIES AS TO SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.

9.4   You will not make any claim against us, nor any member of the ThaiQuest Group, nor any Information Provider, nor any other third party supplier for any indirect, special or consequential loss or damage arising out of the Agreement or the Services.

9.5   If you fail to comply with the terms and conditions under this Agreement, you will indemnify us for any loss or damage caused to the Materials, except to the extent such loss, damage or cost is caused by our gross negligence or wilful misconduct.

9.6   If you fail to comply with the terms and conditions under this Agreement, you will indemnify us against any loss, damage or cost in connection with any claim or action which may be brought by any third party against us relating to any use of or access to the Information which is contributed by you to the Services.

9.7   You will indemnify us for any loss or damage or cost in connection with a claim or action resulting from you permitting access or redistributing Information inside or outside the Site (including, without limitation, over the public internet and/or your intranets) beyond the rights which we have specifically granted to you.

9.8   To the extent permitted by law and except for clause 9.2 (a), under no circumstances will our liability under the Agreement exceed actual damage proved, regardless of the cause or form of action.

9.9   You agree that this clause 9 is enforceable by and for the benefit of members of the ThaiQuest Group, Information Providers and other third party suppliers.

10. CONFIDENTIALITY

10.1  Each of us acknowledges that information of a confidential nature relating to the business of the other may be disclosed to it or otherwise come to its attention.  Each of us undertakes to hold such information in confidence and not, without the prior written consent of the other, disclose it to any third party nor to use it for any purpose other than in the performance of the Agreement.

10.2  This obligation of confidentiality will not apply to information that is generally available to the public through no act or omission of the receiving party, or becomes known to the receiving party through a third party with no obligation of confidentiality, or is required to be disclosed by law, court order or request by any government or regulatory authority.

10.3  This undertaking will be binding for as long as such information retains commercial value.

10.4  No public announcement, press release, communication or circular (other than to the extent required by law or regulation) concerning the Agreement will be made or sent by either of us without the prior written consent of the other.  This consent will not be unreasonably withheld.

11. GENERAL

11.1  (a)   All notices under the Contract from us to you will be announced on www.thaiquest.com, or sent to you in person via registered mail or e-mail at the address or e-mail address as  specified in your application form

(b)   Each party may change its address for the purpose of receiving notices under this Agreement by notifying the other party in writing at least fifteen (15) days in advance.

(c)   Notice will be deemed to be received 3 business days after being sent or on proof of delivery, if earlier.

11.2  We may at any time assign any of our rights or obligations under the Agreement to a member of the ThaiQuest Group, an associate or successor company.

11.3  The Agreement shall be governed by and construed in accordance with the laws of Thailand.  Both of us submit to the non-exclusive jurisdiction of the Civil Court of Thailand.

11.4  If any part of the Agreement that is not fundamental is found to be illegal or unenforceable, this will not affect the validity and enforceability of the remainder of the Agreement.

11.5  If either of us delays or fails to exercise any right or remedy under the Agreement, that party will not have waived that right or remedy.

11.6  Neither of us will be held liable for any loss or failure to perform an obligation due to circumstances beyond its reasonable control.  Should such circumstances continue for more than 3 months, either of us may cancel any affected Service immediately by notice to the other.

11.7  You agree that we, certain Information Providers and our agents, by giving you a reasonable prior notice, will be entitled to have access to the Site during your business hours to verify your compliance with the Agreement.  During the verification, we, certain Information Providers and our agents will comply with your reasonable requirements relating to security and confidentiality.

12. ENTIRE AGREEMENT

12.1  The Agreement replaces any previous “THAIQUEST SERVICE AGREEMENT for Aspen Service” between us in respect of the Services and applies to any Services already supplied by us to you.

12.2  The Agreement contains our and your entire understanding regarding the Services.  In entering into the Agreement, you have not relied on any warranty or representation (except in the case of fraud) made by us other than those mentioned in the Agreement.

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