The following terms and conditions, and the information about Charges
payable to Bourse Datafor using the
Bourse Data System, represent an Agreement between You and Bourse Data.
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. All use of this service is
conditioned upon your acceptance, without modification, of the terms,
conditions and notices contained in this Agreement. The Software, and all
accompanying documentation, is protected by copyright laws and may only be used
in accordance with this Agreement. By Activating the Software, You will be
taken to have accepted the Agreement and be legally bound by it.
1. Term
a.This Agreement commences when You are taken to have accepted its terms,
as described above, and continues in force until it is terminated in accordance
with clause 6.
b.The minimum term for subscription to the Bourse Data System (ISP and
Direct) is 4 Months.
2. Bourse Data System and Derived
Information
2.1 Subscription
You hereby subscribe for access to the Bourse Data System.
2.2 Access to the Bourse Data
System.
Subject to this Agreement, Bourse Data provides You with access to the
Bourse Data System, starting from the time You Activate the Bourse Data System
on a computer until this Agreement is terminated.
2.3 Grant of Non-Exclusive Licence
to Access and use Derived Information
a.Subject to this Agreement, Bourse Data, for itself and on
behalf of its Affiliates, grants You a non-exclusive licence to access and use
the Derived Information and any documentation that accompanies the Software
starting from the time You Activate the Bourse Data System on a computer until
this Agreement is terminated.
b.The license granted in 2.3.adoes not include a right to Deep Hyperlink to any portion of the Bourse
Data System or the Derived Information.
2.4 Activation
a.You are taken to have Activated the Bourse Data System on a computer
when You:
1.Run the Software and input the unique access code provided to You by
Bourse Data for the first time; and
2.provide Bourse Data with your full name, address and other details
requested by Bourse Data so that You can be registered as a subscriber.
b.You must notify Bourse Data of any changes to any information You have
provided to Bourse Data under clause 2.4(a)(2) within 7 days after the change
occurs.
2.5 Restrictions on use of the
Bourse Data System and Derived Information
You must not:
a.copy, redistribute, republish,
re-distribute, re-disseminate or publish the Derived Information except for
internal purposes only;
b.use the Bourse Data System or any Derived Information in any
manner or for any purpose that is unlawful or in any manner that violates any
right of Bourse Data or its Affiliates;
c.restrict or inhibit any other user from using the Bourse Data System or
any Derived Information;
d.post or transmit during access to the Bourse Data System any unlawful,
threatening, abusive, defamatory, obscene, vulgar, pornographic, profane or
indecent information of any kind, including, without limitation, any act which
may constitute or encourage anyone to commit a criminal offence, or which may
give rise to civil liability or may otherwise violate any law;
e.post or transmit during access, to the Bourse Data System, anything which
contains, or may contain a virus or other contaminating or destructive property
to Software;
f.delete or amend any statement or other information on the Bourse Data
System or tamper with the Bourse Data System or attempt to do so; or
g.give the unique access code, referred to in clause 2.4(a)(1), to any
other person, or allow any other person to access the Bourse Data System using
your access details without Bourse Data’s express written permission;
h.copy or modify any of the documentation accompanying the Software in any
manner not expressly authorised by this Agreement.
This clause will continue to apply after termination of this Agreement.
2.6 Restrictions on and conditions
of use of Derived Information specified by Affiliates
If at any time an Affiliate, or Bourse Data on behalf of an Affiliate, gives
You notice of any restrictions or conditions as to your use of any Derived
Information, You must comply with and observe those restrictions and
conditions.
3. Charges
For accessing and using the Bourse Data System and Derived Information, You
must pay, or cause to be paid, the Charges to Bourse Data in the manner
specified in this Agreement.
3.1 Initial Charge
a.An initial charge equal to three times the
base subscription component plus four times each add-on subscription components
must be paid before You Run the Software or Activate the Bourse Data System.
b.Payment of the Initial Charge entitles You
to subscription to the Bourse Data System for the initial period of 4 Months
(“Initial Period”).
3.2 Subscription Charges
a. The
Monthly Subscription Charge consists of a base subscription component plus an
add-on subscription component for each Add-on service you have selected.
b.For continued access and use of the Bourse Data System and Derived
Information after the Initial Period, You must pay or cause to be paid, in
advance, the Monthly Subscription Charges to Bourse Data.
c.Advance payment of the Initial Charge and Monthly subscription Charges
must be made to Bourse Data by completing and forwarding a credit card form or
direct debit application.
d.If expressly agreed to in writing by Bourse Data, advance payment of the
Initial Charge and the Monthly Subscription Charges may be made to Bourse Data
by forwarding, in cleared funds, a cheque or money order at least three days
before the relevant charge is due.-
3.3 Additional Charges
If, during any Month, You access the Bourse Data System (including obtaining
Reports generated by the Bourse Data System) at a level greater than that
access level permitted by Your subscription as notified by Bourse Data to You,
You must pay the following Charges designated by Bourse Data as
"extras", in addition to the subscription Charges described in clause
3.2 in the following manner:
a.The extras for that Month will be due when the Monthly subscription
Charges for the following Month are due or, in the case of subscription
termination, in accordance with Clause 6 of this Agreement.
b.The method of payment to Bourse Data must be made in accordance with
Clause 3.2 of this Agreement.
c.If, in any Month, You incur extras below the minimum, You will be
charged the minimum.
d.The cost of the minimum Monthly charge for extras are those published by
Bourse Data at http://boursedata.com.au/
3.4 Reviews and Variation of
Charges
Bourse Data reserves the right to review and update Charges at any time. By
giving You Written Notice of this variation, Bourse Data may vary Charges or
the basis on which they are levied (including increasing Charges or reducing
Your level of access to the Bourse Data System that a Charge entitles You to).
The varied Charges or basis for charging will not apply until 14 days after the
date the Written Notice has been provided.
4. Software
4.1 Installing and Running the
Software
You may:
a.Run one copy of the Software on a single computer.
b.store or install one copy of the Software on a Storage Device used only
to Run the Software on other computers attached to the Storage Device, provided
that You acquire a licence from Bourse Data on the same terms and conditions
(with any necessary modifications) as those set out in this Agreement for each
separate computer on which the Software is Run from the Storage Device.
4.2 Limited right to make Copies of
the Software
After installing one copy of the Software, You may keep the original media
on which the Software was provided by Bourse Data solely for backup or archival
purposes.
4.3 Restrictions
You must not:
a.sell, re-sell, lend or rent the Software.
b.decompile, disassemble, reverse-engineer, copy, create a derivative work
or otherwise use the Bourse Data System, Derived Information or Software,
except as provided in this Agreement.
c.directly or indirectly perform any act or omission that may endanger,
jeopardise or prejudicially affect the Software, the Bourse Data System or any
Intellectual Property owned by Bourse Data.
d.at any time, divulge any information, drawing, specification, plan or
document in relation to the design or specifications of the Bourse Data System,
Derived Information or Software, except as may be reasonably necessary to
demonstrate, install and service the Software or future product for the
purposes of this Agreement.
The obligations on You pursuant to this clause will survive termination of
this Agreement and continue to bind You.
4.4 New Versions or Upgrades of the
Software
Bourse Data may, from time to time, issue new versions or upgrades of the
Software, which may involve changes to the basis on which the Bourse Data
System or Derived Information may be accessed and used. If Bourse Data offers
You the right to use a new version or upgrade of the Software You must either:
a.accept the new version or upgrade of the Software, in which case You
must use it in accordance with the terms and conditions of this Agreement in
substitution of the previous version of the Software; or
b.terminate this Agreement by giving Bourse Data Written Notice in
accordance with Clause 6.3.
5. Acknowledgement of Ownership of
Intellectual Property
You acknowledge and agree that, except for any rights expressly granted to
You to use or access the Bourse Data System, Software or Derived Information in
this Agreement:
a.the Bourse Data Intellectual Property belongs to and remains the
property of Bourse Data;
b.You must not, at any time, directly or indirectly, do or cause to be
done, any act which infringes any Bourse Data Intellectual Property and,
without limiting the foregoing, You specifically acknowledge that You may not
reproduce or copy the Software or the access code, except as otherwise
expressly authorised by the Agreement;
c.the Derived Information and all Intellectual Property therein belongs to
and remains the property of Bourse Data or its Affiliates (as the case may be);
d.You do not have any licence or right to use any trademark displayed by
or on the Bourse Data System or in the Derived Information without the express
written permission of Bourse Data or the owner of the trademark, if Bourse Data
does not own it;
e.nothing in the Bourse Data System will be construed as granting You any
licence or right to use any trademark displayed by or on the Bourse Data System
or in the Derived Information;
f.You must not, at any time, directly or indirectly, do or cause to be
done anything which does, or may, infringe those trademarks or diminish the
value of those trademarks to Bourse Data. The obligations on You pursuant to
this clause will survive termination of this Agreement and continue to bind
You.
6. Suspensions and Termination
6.1 When Bourse Data may suspend
Bourse Data may suspend the provision of all products and services it is
obligated to provide to You under this Agreement, including any licence or
rights granted, in the event any Charges payable by You to Bourse Data are
overdue by more than 14 days. Bourse Data may elect, by Written Notice to You,
to continue any such suspension until the payment of these outstanding Charges
are received in full or termination is elected in accordance with Clause 6.2.
6.2 When Bourse Data may terminate
Bourse Data may immediately terminate this Agreement if:
a.any Charges payable by You to Bourse Data under this Agreement are
overdue by more than 14 days; or
b.You, being a corporation, become the subject of insolvency proceedings;
c.You, being a firm or partnership, are dissolved;
d.You, being a natural person, die;
e.You being an individual, are the subject of bankruptcy proceedings;
f.Bourse Data provides You with Written Notice of its intention to
terminate the Agreement;
g.You are in breach of any of the terms or conditions of this Agreement.
6.3 When You may terminate
Subject to Clause 1(b), You may only terminate this Agreement by providing
Bourse Data Written Notice of your intention to terminate. If Bourse Data
receives such notice from You:
a.this Agreement will terminate at the end of the current subscription fee
invoiced period, unless Bourse Data terminates this Agreement sooner;
b.within 7 days of receipt of the notice, Bourse Data shall send to You a
statement of outstanding Charges; and
c.You must pay all and any outstanding Charges to Bourse Data within 14 days
of the date of the statement.
6.4 No refund
You acknowledge that Bourse Data is under no obligation to refund all or any
part of any Charges, or costs associated with any Charges, which You have paid
to Bourse Data under this Agreement, including any payments made in advance.
The acknowledgment provided in this clause will survive termination of this
Agreement and continue to bind You.
6.5 Effect of termination
Termination of this Agreement:
a.will not prejudice or otherwise affect any rights or obligations,
expressed in this Agreement, in relation to any period after the date of
termination;
b.will not affect any right or remedy one Party has against another due to
any breach of this Agreement; but
c.will terminate all other rights and obligations under this Agreement.
6.6 Your obligations on termination
On termination of this Agreement, You must:
a.cease to access the Bourse Data System or Derived Information in any
way.
b.cease to use the Software in any way.
7. Disclaimer and limitation of
liability
7.1 Exclusion of implied terms
Each Party acknowledges that, in entering into this Agreement, it does not
do so on the basis of, and does not rely on, any representations, warranty or
other provision except as expressly provided herein, and all conditions,
warranties or other terms implied by statute or common law are hereby excluded
to the fullest extent permitted by law.
The acknowledgments provided in this clause will survive termination of this
Agreement and continue to bind You.
7.2 Disclaimer
a.You acknowledge and agree that access to the Bourse Data System and the
Derived Information is provided to You on an "as is" basis and that
Your use of the Bourse Data System and the Derived Information is at your sole
risk.
b.Bourse Data makes no warranty of any kind whatsoever relating to the
Bourse Data System, the Derived Information or the Software including, without
limitation, as to:
1.non-infringement of third Party rights, merchantability, fitness for any
particular purpose or use, accuracy or completeness in respect of the Derived
Information, except as expressly set out in this Agreement;
2.the reliability, quality or availability of the Bourse Data System or
the Derived Information through the Internet;
3.the absence of viruses or other contaminating or destructive properties
in the Software; or
4.any references in the Bourse Data System to a website operated by a
third party, access to or the contents of the website, or any hyperlink to gain
access to the website.
c.You acknowledge and agree that neither Bourse Data nor its Affiliates
will be held responsible to You for any use, or the results of any use, of the
Bourse Data System or Derived Information.
d.You acknowledge and agree that:
1.the Internet and telecommunication lines used to access the Internet are
beyond the control of Bourse Data;
2.Bourse Data does not and is unable to exert any control over other users
of the Internet and telecommunication lines used to access the Internet;
3.the hyperlinks and other pointers to websites maintained by others that
are on the Bourse Data System, and the websites themselves, are not under the
control of Bourse Data; and
4.the hyperlinks and other pointers to websites maintained by others that
are on the Bourse Data System are provided as a convenience only, are not
endorsed by Bourse Data in any way and, if You use them, You do so entirely at
your own risk.
The acknowledgments and disclaimers provided in this clause will survive
termination of this Agreement and continue to bind You.
7.3 Limitation of liability
a.The total liability of Bourse Data and its Affiliates for:
1.any breach of this Agreement, or
2.any breach in tort (including negligence), or otherwise
3.any breach in connection with this Agreement, or
4.any claims, loss or damage incurred in any way relating to the Software,
or
5.any breach in the provision of access to the Bourse Data System or the
Derived Information, or as a result of
6.any act or omission by Bourse Data, or any of its Affiliates, under or
in connection with this Agreement
will not exceed $100 for all claims and causes of
action and, in the case of a defective product or service provided under this
Agreement, is limited at the option of Bourse Data to the supply of the product
or service again, or the payment of the cost of having it supplied again.
b.No action, regardless of form, arising out of or pertaining to this
Agreement may be brought by You against Bourse Data or any of its Affiliates
more than 3 Months from the date such cause of action arises.
c.Neither Bourse Data nor any of its Affiliates is liable to You or any
other person for any indirect, consequential or incidental loss or any special
or punitive damages caused or contributed to by Bourse Data or any Affiliate
under or in connection with this Agreement or the provision of any of the
products or services referred to in this Agreement.
This clause will continue to apply after termination of this Agreement.
7.4 Subject to law
No exclusion of implied terms, or disclaimer, or limitation of liability
contained in this clause applies to the extent that it is prohibited by the
law.
7.5 Indemnity
You will use the Software and access the Bourse Data System at Your own risk
and You will indemnify and keep indemnified Bourse Data and hold harmless
Bourse Data, its agents, Affiliates, employees, and subcontractors against any
loss, damage, cost or expenses resulting either directly or indirectly from the
use of the Software or access to the Bourse Data System or a breach or default
or failure by either Party to perform its obligations under this Agreement.
The indemnities provided in this clause will survive termination of this
Agreement and continue to bind You.
7.6 Disclaimer Regarding Investment
Advice
The Derived Information is based on information about securities that is
publicly available. In order to allow users to interpret this information, the
Bourse Data System produces technical indicators by applying formulae. These
indicators are then presented in charts. These indicators do not in themselves
indicate whether a security should be bought or sold and, therefore, should not
be regarded as advice to do so.
a.The Derived Information is not suitable to be acted upon as investment
advice; and
b.it is advisable to seek independent advice before making any investment
decisions relying on the Derived Information provided.
This clause will continue to apply after termination of this Agreement.
7.7 AAP Disclaimer and Copyright
Notice
The copyright and disclaimer
notices in this clause 7.7 are in addition to Australian Associated Press Pty
Limited’s rights and obligations conferred on it by the rest of this Agreement.
Copyright to Derived Information
attributed to AAP exists with Australian Associated Press Pty Limited or its
Licensors. AAPreserves all rights, including copyright, in services provided by
it. The information, text and images in the service are for personal use only
and may not be re-written, copied, re-sold or re-distributed, framed, linked or
otherwise used whether for compensation of any kind or not, without the prior
written permission of AAP.
The AAP service is published for
information only without assuming a duty of care. AAP is not in the business of
providing professional advice, and gives no warranty, guarantee or other
representation about the accuracy of the information or images contained in
this service. AAP is not liable for errors, omissions in, delays or
interruptions to or cessation of the services through negligence or otherwise.
The globe symbol and “AAP” are
registered trade marks.
8. Written Notices
a.A Party may send a notice:
1.by hand;
2.by facsimile transmission;
3.by registered mail;
4.by email or electronic newsletter; or
5.by notice on the Support section of the Bourse Data website at
http://www.boursedata.com.au/support
It is your responsibility to check this web page
for any updates daily.
b.A notice is deemed to be given:
1.if sent by hand, at the time of receipt.
2.if sent by facsimile transmission, at the time recorded on the
transmission report unless:
i.the
intended recipient promptly informs the sender that the transmission was
received in an incomplete or garbled form; or
ii.the transmission report of the sender indicates a faulty or incomplete
transmission.
3.if sent by registered mail, at the time that the recipient or its agent
acknowledges receipt.
4.if sent by email or electronic newsletter, at the time the sender's
computer records the email as having been sent, unless the intended recipient
promptly informs the sender that the email was received in an incomplete or
garbled form.
5.if a published notice at the Bourse Data website. It is your
responsibility to check this section for any updates daily. This will be dated
and located within the Support section at: http://www.boursedata.com.au/support
6.If delivery or receipt is not on a Business Day or, if receipt is later
than 5:00 pm local time at the place of delivery on a Business Day, then the
notice is deemed to have been received on the next Business Day.
c.A notice to a Party must be sent:
1.in the case of Bourse Data, to
PO Box 274,
Collins Street West,
Melbourne, VIC 8007
Australia
2.in your case, to your address, facsimile number or email address as
supplied to Bourse Data, or in such other way as the Party may notify the other
Party in writing.
9. General
9.1 Governing law and jurisdiction
a.This
Agreement is governed by the laws of the State of Victoria, Australia.
b.The
Parties submit to the non-exclusive jurisdiction of the courts of Victoria,
Australia.
9.2 Amendment
From time to time, Bourse Data may make amendments to this Agreement by
providing You with Written Notice of the change (as defined in Clause 8). You
will be obliged to comply with such amended terms, should You wish to continue
using the products and services of Bourse Data.
9.3 Waiver
A provision of this Agreement, or a right created under it, may not be
waived except by a Written Notice by the Party granting the waiver.
9.4 Exercise of a right
a.A Party may exercise a right:
1.at
its discretion; and
2.separately
or together with another right.
c.If a Party exercises a single right, or only partially exercises a
right, then that Party may still exercise that right or any other right later.
d.If a Party fails to exercise a right or delays in exercising a right,
then that Party may still exercise that right later.
9.5 Assignment
a.This
Agreement is for the benefit of the Parties and their successors and assigns.
b.The
Parties and their successors and assigns are bound by this Agreement.
c.You
may only assign your rights under this Agreement after You obtain the written
consent of Bourse Data.
9.6 Severance
a.If a provision of this Agreement is void, voidable, unenforceable or
illegal, but would not be void, voidable, unenforceable or illegal if it were
read down and it is capable of being read down, then the provision must be read
down.
b.If a provision is incapable of being read down to save it and the
provision would not be void, voidable, unenforceable or illegal if words were
severed, then those words must be severed.
c.In any other case, the whole provision must be severed.
d.If a provision is read down or words are, or the provision is, severed,
the remainder of this Agreement continues in full force and effect.
9.7 Costs and Taxes
Notwithstanding anything to the contrary contained in this Agreement:
a.if any GST (goods and services tax) is imposed on or in respect of any
products or services or payment for products or services provided by Bourse
Data to You under this Agreement, Bourse Data may charge You for the amount of
the GST so imposed and You must, on demand, pay the amount of GST to Bourse
Data, or as otherwise directed by Bourse Data, in addition to any other amount
payable by You under this Agreement;
b.each Party must bear its own costs in relation to the negotiation,
preparation and execution of this Agreement.
10. Definitions
In this Agreement, unless the context requires otherwise:
a."Activates" or "Activation" means activating the
Bourse Data System on a computer as described in clause 2.4.
b."Affiliate" means, with respect to Bourse Data, an entity with
whom Bourse Data has a current licence agreement or other contract to provide
and/or carry Derived Information.
c."this Agreement" means this Access and Licence Agreement and
includes, but is not limited to, the information about Charges payable by You
to Bourse Data, and variations to these Charges, as notified by Bourse Data to
You from time to time.
d."Bourse Data" means Bourse Data Pty Limited (ACN 101 774 234).
e."Bourse Data Intellectual Property" means Intellectual
Property in the Bourse Data System, Bourse Data websites, Software,
accompanying documentation and the access code.
f."Bourse Data System" means the computer programs and systems
owned by Bourse Data able to be accessed by use of the Software, being a
communications and analytical computer-based system that permits the access,
analysis and manipulation of Derived Information;
g."Business Day" means:
1.for
the purpose of sending or receiving a notice, a day on which banks are open for
business in the city where the notice, or other communication, is received; and
2.for
all other purposes, a day on which banks are open for business in Melbourne,
Victoria, Australia.
The definition in this clause does not include a
Saturday, Sunday or a public holiday in the relevant city.
h."Charges" means those fees and extras charged to You by Bourse
Data in accordance with Clause 3.
i. “Deep
Hyperlink” means a direct hypertext link established for purposes other than
personal use by You from a web page outside the Bourse Data System to a web
page within the Bourse Data System which contains any Derived Information.
j."Derived Information" means all data and
other information provided by Bourse Data, or its Affiliates, accessible
through use of the Bourse Data System.
k."Intellectual Property" includes
copyright in any work, a right to any design or trademark.
l."Month" means calendar Month.
m."Party" means You or Bourse Data (as the case requires) and
"Parties" means You and Bourse Data.
n."Report" means AAP, RWE and ASX Company Announcements;
o."Run"
means, in relation to the Software, to install, use, access, display or load a
copy of the Software on a computer, computer system or on any Storage Device;
p."Software" means:
1.the
object code versions of the computer programs owned by Bourse Data.
2.any
upgrades of, or supplements to, those programs and systems provided by Bourse
Data from time to time; and
3.any
associated media, printed materials, manuals and "online" or
electronic documentation.
q."Storage Device" means any device or system on which computer
Software can be Run, including a network server.
r."Written Notice" means notice given by either Party in
accordance with Clause 9.
s."You" means the subscriber to
the Bourse Data System and service or that person or entity who, having read
the terms and conditions of this Agreement, accepts and agrees to be bound by
such terms and conditions by clicking the "I AGREE" button when
Activating the Software.
