PART A – SOFTWARE LICENCE

2. LICENCE. (a) BSMEL hereby grants to Subscriber, and Subscriber hereby accepts, a non-exclusive, non-transferable licence to use the software (the "Software") and the supplied documentation (the "Documentation") to access and use the Service and on the further conditions set out in this Part A, including without limitation the following:

(i) the Software and Service may be used only on the Authorised Display Devices referred to in clause 8 below;

(ii) only Subscriber and its employees (if any) may use the Software and Service and only for internal business use in its company or organisation;

(iii) the Software and Service may only be used, and is only intended to be used, in accordance with such manuals, guides and/or technical specifications as may be contained in the Documentation, as well as with any recommendations that BSMEL may make from time to time;

(iv) Subscriber hereby agrees that it will not assign, sub-licence, transfer, pledge, lease, rent, share, or in any way deal with, its rights hereunder in respect of the Software with any other party, or use the Software or any information contained within the Service to process third party work or otherwise act as a service bureau or agent;

(v) Subscriber further acknowledges and agrees that all legal and beneficial right, title and interest in and to the Software (or any of its components), and any information (whether confidential or not) obtained through using the Service and/or Documentation, are and shall remain with BSMEL or its suppliers or a Source (as defined in clause 9 below), as appropriate.

(b) Notwithstanding the licence set out above, BSMEL hereby reserves the right to change or discontinue any Service or feature at any time without notice.

3. COPIES. Subscriber hereby agrees not to make any copy of the Software, information contained within the Service and/or Documentation without the express written consent of BSMEL except for a single back-up copy. Any such permitted copy shall include BSMEL’s copyright and other proprietary notices.

4. SUPPORT. During the Term, BSMEL will provide Subscriber with updates to the Software, which are made generally available to BSMEL’s other customers and reasonable e-mail support to assist in resolving problems with the use of the Software. Should Subscriber have a query it should send BSMEL an e-mail to support@bluesystems.info or use the link to "Customer Support" under About Us at www.bluesystems.info.

5. LICENCE FEES AND PAYMENT. (a) Subscriber will be responsible for the payment of any fees connected with the Software and Service, as well as all other charges, including, without limitation, those which enable Subscriber to access the Service and any applicable taxes or duties, as set out the MNO Agreement or the Individual Agreement.

(b) In respect of the Individual Agreement, the current fees payable for the Software and Services are set out on BSMEL’s website. If, at any time, BSMEL requires a fee from Subscriber, it will be asked to register and create an account. BSMEL may adjust or change any fees upon giving Subscriber reasonable notice on or before the start of its next billing period. Such changes or adjustment will be effective on the first day of the next billing period. Payment for any such fees shall be made in accordance with the procedures set out on the BSMEL website. The Subscriber hereby acknowledges and accepts that it has read, understood and agrees the website provisions referred to in this clause 5(b).

(c) BSMEL shall (where possible) provide reasonable notice of any change to charges which may be imposed by a Source but it hereby agrees that these may change without notice if such a change is imposed upon BSMEL.
 

PART B – CONTENT

6. SERVICE REGISTRATION. (a) In order to obtain access to any Service Subscriber will be asked to register and provide certain registration information in order to receive a user name and password. Subscriber hereby agrees that any information provided to BSMEL is accurate and hereby undertakes and covenants to keep it complete, accurate and up to date.

(b) Subscriber must keep its password confidential and not allow any third party to use its user name and password to access the Service. In the event that Subscriber becomes aware of any unauthorised use or suspects any unauthorised use or other breach of security, Subscriber must notify BSMEL at the following e-mail address: support@bluesystems.info. Subscriber hereby agrees to co-operate fully with BSMEL in any security investigations.

(c) Subscriber is solely responsible for its own computers and telecommunications equipment and any use or other activity in relation to its BSMEL account including, for the avoidance of doubt, use by any third party authorised by Subscriber to use its user name and password. Further any fraudulent, abusive, offensive or illegal acts may, at BSMEL’s sole discretion, be grounds for immediate termination of Subscriber’s BSMEL account.

7. ACCESS TO SERVICE. (a) While BSMEL endeavours to ensure that the Service and any information supplied are normally available 24 hours a day, BSMEL shall not be liable if for any reason the Service or information (or any part thereof) is unavailable at any time or for any period. Access to the Service or information (or any part thereof) may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons set out in clause 24.

(b) Subscriber hereby accepts and acknowledges that the Internet and instant messaging are publicly available and may be liable to failures or delays and that therefore BSMEL cannot guarantee the delivery of any message over the Internet or other telecommunications medium, nor the security of the Services. BSMEL shall not be liable for any third party software used by Subscriber in relation to the Software or Services nor for any problems with telecommunications networks or equipment, viruses, Trojans, unauthorised access or any other issue relating to your security arrangements.

8. AUTHORISED DISPLAY DEVICES. BSMEL shall provide, and the Subscriber shall receive, the Service solely for the Subscriber’s internal use on the number of Authorised Display Device(s) initially as set forth, as may be subsequently varied in number from time to time by written notice from Subscriber to BSMEL (but never so as to be less than the number initially set out at the commencement of this Agreement), and at the installation address.

9. THIRD PARTY AGREEMENTS. For receipt of those portions of the service which Subscriber elects to receive, Subscriber shall, if required, enter into separate agreements with exchanges, third party data providers or suppliers or developers and/or other providers (any of them hereinafter referred to as a "Source"), in a form acceptable thereto. Failure of Subscriber to comply with the provisions of this clause 9 shall constitute a material breach of this Agreement.
 

PART C – GENERAL

10. RIGHTS IN THE SOFTWARE, SERVICE AND DOCUMENTATION. (a) Subscriber hereby expressly acknowledges and accepts that the Service has been prepared by BSMEL and the Sources through the application of methods and standards of judgement developed and applied through expenditure of substantial time, effort and money, and consists of proprietary, unpublished products of BSMEL or the Sources (as appropriate), protected under intellectual property law. Subscriber further acknowledges that the Service contains trade secrets and proprietary data and that nothing in this Agreement shall be construed to convey any legal or beneficial title or ownership rights in the Service, the Software or information within the Documentation, or any portion thereof, to Subscriber.

(b) Subscriber hereby agrees to protect all proprietary rights of BSMEL and all the Sources in their respective portions of the Service; and Subscriber shall honour and comply with all reasonable requests to protect the contractual, statutory and common law rights of BSMEL and the Sources.

(c) In using the Software, information contained in the Service and/or Documentation, Subscriber will not disclose it to any third party, treat it in no worse way as it treat its own information, and in any event shall at least all necessary care in this respect. Subscriber hereby agrees not to use, transfer, distribute or dispose of any Software or any information contained within the Service in any manner that could compete with the business of BSMEL or the Sources. Subscriber hereby further agrees to abide by all applicable copyright and other intellectual property laws as well as any additional copyright or other notices which may be included in the Software, Service or Documentation or as BSMEL may reasonably direct from time to time.

(d) Subscriber will not communicate, distribute, transfer, sell or otherwise furnish or permit to be furnished the Service or any of the data, information or Software contained therein to anyone including but not limited to branch offices or other places of business of Subscriber, or to any third party person, firm or corporation, without the express prior written consent of BSMEL.

11. CONTENT IN THE SERVICES. (a) Subscriber acknowledges and accepts that all information (of whatever type and in whatever media, and including without limitation any news or commentary thereon) available to Subscriber, or which Subscriber may have access to, as part of, or through the provision of or use by, the Services, are the sole responsibility of the person or entity from which such information originated or was provided.

(b) To the extent that any of the information referred to in Clause 11(a) above is not owned and provided by BSMEL (which information, in whole or in part, being the “Third Party Content”), then (save where expressly stated otherwise in this Agreement) it shall not form the subject of any representation, warranty, obligation or responsibility of BSMEL’s, whether pursuant to this Agreement, at common law or otherwise.

(c) Without prejudice to the foregoing provisions of this Clause 11 and the provisions of Clause 13 below, BSMEL does not represent, warrant or guarantee that the Third Party Content will be available free from disruption, defects, accuracy or completeness.

12. SUBSCRIBER WARRANTY. Subscriber hereby represents and warrants to BSMEL that:

(a) it will not use or permit anyone to use the Service for any unlawful purpose;

(b) it has the right and authority to enter into this Agreement and perform hereunder. If Subscriber is an entity, the signatory below is authorised to act on behalf of the named Subscriber;

(c) it is not engaged in the business of vending financial quotation information or software.

(d) it is solely responsible for ensuring that its computer and telecommunications equipment are properly configured to receive any Software or Services. Subscriber hereby agrees that BSMEL shall not be held liable for any reduced performance, damage or loss (including loss of data or interruption) which may be due to Subscriber’s downloading any Software or accessing the Service whether in conjunction with any other system, software, data or equipment or otherwise.

13. BSMEL WARRANTY. (a) BSMEL hereby warrants to Subscriber, that (i) for a period of sixty (60) days after commencement of the Term, the Software (save for any third party software therein), when used properly and in accordance with this Agreement, will perform substantially as described in the Documentation supplied for the Software; and (ii) BSMEL has the right to grant the licence provided to Subscriber herein and that, so far as it is aware, the Service (save for any Third Party Content therein) does not infringes any copyright, patent, trademark, trade secret or other protected intellectual property right of any third party.

(b) If BSMEL is in breach of clause 13(a)(i) then BSMEL shall use reasonable endeavours to fix the Software so as to comply with the warranty. BSMEL shall have reasonable time to do this. If BSMEL is unable to do this then BSMEL may elect to provide a refund of charges paid (if any) in respect of the defective Software and this will be BSMEL’s sole liability in relation to this warranty.

(c) BSMEL’s obligations under this clause 13 shall be conditional upon (i) the Subscriber promptly notifying BSMEL in writing of a claim of breach of warranty setting out the nature and extent of the alleged breach and the loss suffered as a result; (ii) BSMEL having sole control of any settlement and defence of any action to which the alleged breach relates; and (iii) Subscriber reasonably cooperates to facilitate any such defence.

(d) The provision of the Service and BSMEL’s obligations under this Agreement are conditional upon Subscriber’s strict compliance with the provisions of this Agreement and with all applicable laws and regulations and exchange rules, regulations, and contract terms which may pertain to the use of the Service. Notwithstanding any other term of this Agreement, it is understood and agreed by Subscriber that BSMEL may discontinue the Service if parts thereof, without prior notice or liability, whenever the Sources, require such discontinuation, provided the BSMEL will endeavour to provide prior notice when practicable and permitted by the Source.

14. EXCLUSION OF LIABILITY. THE WARRANTIES SET OUT IN CLAUSE 13 ABOVE, IS IN LIEU OF ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. NEITHER BSMEL, NOR ANY OF ITS AFFILIATES, NOR ANY SOURCE, REPRESENT OR WARRANT THAT THE SERVICE (INCLUDING WITHOUT LIMITATION ANY THIRD PARTY CONTENT PROVIDED THEREBY) WILL BE UNINTERRUPED OR ERROR-FREE, COMPLETE OR ACCURATE. OR BE PROVIDED WITHOUT DELAY; NOR DO THEY MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. SUBSCRIBER UNDERSTANDS THAT THE SERVICE MAY BE SUBJECT TO DELAYS AND INTERRUPTION WHICH ARE BEYOND CONTROL OF BSMEL AND THAT BSMEL SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR DELAYS AND INTERRUPTIONS WHICH ARE BEYOND ITS CONTROL.

15. LIMITATION OF LIABILITY. In no event will either BSMEL or any Source be liable for any results obtained from using the Software or Service or the accuracy, completeness or reliability of any content or any information provided through the Service (including without limitation any Third Party Content), or for any loss of profit, loss of sales, loss of revenue, loss of economic use, loss of data, wasted time, loss of business opportunity or for any consequential, indirect or incidental, or special damage however caused and whether arising under contract, tort (including negligence) or otherwise. BSMEL does not exclude or limit liability, for (a) death or personal injury resulting from an act of negligence of BSMEL, or (b) in respect of fraudulent acts or statements, or (c) to the extent that any exclusion or limitation of liability is not permitted by law. Subject to the foregoing, BSMEL’s total aggregate liability under these terms or in relation to anything BSMEL has done or not done in connection with these terms (and whether arising in contract, tort or otherwise) shall not exceed 105% of the charges (if any) actually paid to BSMEL over the period of the licence term in respect of Subscriber’s use of the Software.

16. INDEMNITY. (a) Subscriber hereby agrees to indemnify and hold BSMEL and its affiliates harmless now and in the future from any and all losses, damages, liabilities, costs, charges and expenses, including reasonable attorney’s fees, arising out of:

(i) any breach by Subscriber of its obligations under this Agreement, or any failure to comply with the requirements of, or any obligations or requirements of any the Source;

(ii) Subscriber’s use of the Software or Service, including, without limitation, use of the Software or Service by anyone (using Subscriber’s user name and/or password) who is not authorised.

17. TERMINATION. (a) BSMEL shall be entitled to terminate this Agreement if in respect of Subscriber:

(i) a meeting of creditors is held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) is proposed by or in relation to it;

(ii) a chargeholder, receiver, administrative receiver or other similar person takes possession of or is appointed over or any distress, execution or other process is levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of it;

(iii) it ceases to carry on business or is deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986;

(iv) it or its directors or the holder of a qualifying floating charge gives notice of its intention to appoint, or make an application to the court for the appointment of, an administrator;

(v) a petition is presented (and is not discharged within 28 days) or a resolution is passed or an order made for the administration or the winding-up, bankruptcy or dissolution of it; or

(vi) there is the happening in relation to it of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.

(b) BSMEL shall be entitled to terminate the Service if in BSMEL’s reasonable judgement Subscriber is in material breach of any of its obligations under this Agreement.

(c) Termination of this Agreement under the provisions of this clause shall be without prejudice to any other remedy, which BSMEL may have against the Subscriber.

(d) In addition to and notwithstanding the above, if Subscriber (if Subscriber is an entity) or any if its employees, agents or representatives, shall attempt to use or dispose of the Service in manner contrary to the terms of this Agreement, BSMEL shall have the right, in addition to such remedies as may be available to it, to injunctive relief enjoining such acts or attempts, it being acknowledged that legal remedies are inadequate.

(e) Upon termination for whatever reason, Subscriber must destroy the Software, any information obtained through using the Service and the Documentation and any copies, and certify that this has been done if BSMEL requests the same. All right to use the information obtained through using the Software, Service and Documentation shall immediately cease upon termination of this Agreement (howsoever arising).

18. RELATIONSHIP. The relationship between Subscriber and BSMEL is that of independent contractors and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint ventures or agents of one another. This Agreement shall not be assigned, novated, subcontracted, dealt with or otherwise transferred in whole or in part by Subscriber without the prior written consent of BSMEL.

19. CONDUCT. (a) Any information or other material Subscriber transmits using the Service shall be considered non-confidential and non-proprietary. BSMEL shall have no obligations with respect to such material or information. BSMEL (or its nominees) shall be free to copy, disclose, distribute, incorporate and otherwise use such material and all data, images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes without further recourse to Subscriber.

(b) Subscriber is prohibited from transmitting any material, information or data using the Software or Service:

(i) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of this agreement, in breach of privacy or which may cause annoyance or inconvenience; or

(ii) for which Subscriber has not obtained all necessary licences and/or connts if they are required; or

(iii) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or

(iv) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data); or

(v) that may interfere with the use of the Service or any services by others or undertake any course of action, whether by use of the website, telephone or any other means, which would cause a disproportionate level of activity. For an Internet telephony service and the purposes of this clause, use of more than 2 concurrent channels per phone number is considered to be a disproportionate level of activity.

(c) Subscriber may not misuse or corrupt the Software, Service, Documentation or any information supplied by BSMEL (or its suppliers or a Source) in any way.

(d) BSMEL shall fully co-operate with any law enforcement authorities or court order requesting or directing it to disclose the identity or locate anyone posting any material in breach of this clause and breach of this clause shall entitle BSMEL to immediately terminate this Agreement and any Service upon giving Subscriber written notice.

20. DATA PROVISION. (a) Real-time and historic data is supplied by Interactive Data Corporation of Fitzroy House, 13-17 Epworth Street, London, EC2A 4DL.Real-time OTC data is provided by ICAP of 2 Broadgate, London EC2M 7UR.

(b) Fundamental data and company financials is provided by World Vest Base of Room 1008 Dannies House, 20 Luard Road, Wanchai, Hong Kong.

21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements, understandings, arrangements, representations, proposals made by or between the parties with respect to its subject matter, and nothing stated heretofore or hereafter will be considered part of this Agreement without amendment in writing executed by both parties.

22. ASSIGNMENT. (a) Neither the terms and conditions of this Agreement nor any rights or obligations under this Agreement, shall be assigned, delegated, novated or otherwise transferred, or dealt with, by Subscriber (by operation of law or otherwise) without BSMEL’s prior written consent. BSMEL shall have the right to assign all or part of this Agreement without Subscriber’s approval. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

(b) BSMEL may engage one or more subcontractors to perform any or all of the obligations of BSMEL hereunder.

(c) Any such subcontracting by either party shall not, unless the parties otherwise agree in writing, relieve the subcontracting party from any obligations hereunder.

23. WAIVER. (a) None of the provisions of the Agreement shall be deemed to be waived or modified, other than as expressly stated in writing signed by both parties.

(b)The failure of either of the parties hereto to enforce, or the delay by either party in enforcing, any of its rights under this Agreement shall not be deemed to be a waiver or modification by the parties of any of their rights under this Agreement.

24. NOTICE. Any notices required to be sent hereunder shall be sent by mail to the respective address set forth below or by fax to the number set forth below, unless either party notifies the other of a change in such address or number. Prompt written notice of any change of the name, nature or address of the Subscribers or Subscriber’s business shall be given by Subscriber to BSMEL.

25. FORCE MAJEURE. Neither party shall have any liability for any default resulting from force majeure, which shall be deemed to include any circumstances beyond its control. Such circumstances shall include, but are not limited to: acts of the government, fires, floods, strikes, civil disturbance or terrorism, or power communications line, satellite or network failures or any other failure or interruptions affecting the Internet.

26. THIRD PARTY RIGHTS. The parties to this Agreement do not intend that any of its terms shall be enforceable by virtue of the Contract (Rights of the Third Parties) Act 1999 at common law or otherwise by any person who is not a party to this Agreement except that the Sources shall be entitled to enforce (by virtue of that Act) any term which relates expressly to them.

27. COSTS. In the event any legal action is taken by BSMEL against Subscriber in order to enforce the terms and conditions of this Agreement, Subscriber agrees to pay on an indemnity basis all court costs, including disbursement and reasonable attorney’s fee incurred by BSMEL.

28. LAW AND JURISDICTION. This Agreement shall be governed by the laws of England and the parties hereby agree to submit to the exclusive jurisdiction of the English Courts.

29. SURVIVAL. Clauses 14 to 18 inclusive and 24 to 29 inclusive shall survive termination of this Agreement.