4.1. Rights and obligations of EPEX SPOT
4.1.1. Obligations of EPEX SPOT regarding the provision of Services
4.1.1.1. We shall use reasonable efforts (i) to ensure that the Information Product made available to you, as well as the Services provided to you have been and will continue to be developed with due care and skill in a professional manner and is accurate, current and complete and that the sources of the Information Product are reliable and (ii) promptly correct or complete any errors or omissions we may be aware of and then retransmit the corrected or completed Information Product to you and (iii) to ensure that the Information Product will continue to be provided to at least the same standard in terms of quality, quantity and timeliness as at the date when it was formally accepted by you as meeting the coverage, timeliness, accuracy levels and specifications as agreed between us.
4.1.1.2. We shall provide you with Information Product of as good quality and quantity (including, but not limited to, in terms of consistency, accuracy, timeliness and comprehensiveness) as the Information Product we make available to other third parties having access to the same Information Product as you.
4.1.1.3. We reserve the right to interrupt or suspend the provision of the Information Product, at any time, due to technical reasons. We also reserve the rights to temporarily reduce or suspend your access to the Information Product without any prior notification, provided that we have legitimate grounds to deem such action necessary to ensure the continuity and/or security of our services and activity or in case of exceptional circumstances. In this event, we will notify you as soon as possible.
4.1.1.4. In the same vain, we also reserve the right to modify, reduce or extend the scope of contents and the format of the Information Products provided, including through our API. If the change is a major change as per Article 6.2.1, we shall provide you at least sixty (60) days prior written notice. However, where a major change is required to ensure the continuity and/or security of our API, services and activity or in case of exceptional circumstances, we may not provide you any notice.
We shall not be liable for any delay or failure in transmission and / or receipt of Information Products via our API.
4.1.2. Audit
4.1.2.1. EPEX SPOT shall be entitled to carry out an Audit at the Contracting Party, its Affiliated Companies and Service Providers, White Labelling partner as well as Subscriber of Real-time Information Product for purposes of the verification of compliance to the Market Data Agreement and in particular the remuneration of the Information Product Usage and the technical infrastructure. You shall be obliged to ensure that EPEX SPOT or the Auditors instructed by us, as the case may be, receive access to the relevant documents and the technical infrastructure at your site or the site of your Service Provider, as well as the sites of the Subscriber of Real-time Information Product. EPEX SPOT may additionally request you with documents as well as electronic data files for the purpose of further examination which you undertake to provide.
4.1.2.2. The aforementioned Audit right of EPEX SPOT remains for a time period of two (2) years after termination of the Market Data Agreement. You have to ensure that EPEX SPOT may exercise its Audit right also at the Service Providers, the Subscribers for Real-time Information Product during a period of at least two (2) years after (a) termination of the Market Data Agreement or (b) an earlier termination of the service agreement with the relevant Service Provider or the Vendor Service Agreement with the relevant Subscriber, as the case may be.
4.1.2.3. Notwithstanding any other rights under the Market Data Agreement, if you refuse the conduct of a duly announced Audit and, therefore, fail to comply with your obligations under Section 4.1.2, or if you, in spite of a written demand by EPEX SPOT or one of its instructed Auditors, do not (i) provide access to certain relevant documents (e.g. Honesty Statements) or technical infrastructure (e.g. Entitlement System) at your site or the site of your Service Providers, White Labelling partners or Subscribers of Real-time Information Product, or do not (ii) deliver requested relevant documents or electronic data files, EPEX SPOT shall, until the due performance of the obligations, deriving from Section 4.1.2, at its choice, be entitled to:
a) preliminarily estimate an assumed supplementary payment on the basis of appropriate criteria (e.g. reports of the past or reports by comparable companies, as the case may be) in accordance with its reasonably exercised discretion and invoice such estimate as an on-account payment; and/or
b) suspend the delivery of Information Product or the license for the Information Product Usage until the proper compliance with the obligations under Section 4.1.2; and/or
c) to make the continuation of the Market Data Agreement subject to the payment of reasonable costs due.
4.1.2.4. As far as the documents or the technical infrastructure necessary, as the case may be, for the correct determination of the billing basis do not exist at the Contracting Party, its Service Providers, White Labelling partners or Subscribers of Real-time Information Product, as the case may be, EPEX SPOT shall have the rights under Section 4.2.4 mutatis mutandis.
4.2. Rights and obligations of the Contracting Party and other Users
4.2.1. Rights and obligations related to the External Usage of Information Product
The Contracting Party shall:
(i) ensure the External Usage of Licensed Information Product with Subscribers is subject to the conclusion of a binding Vendor Service Agreement between the Contracting Party and the relevant Subscriber. Such Vendor Service Agreement shall:
a. be concluded in writing;
b. ensure that the rights granted on the Licensed Information Product is not extended;
c. contain the restriction of this Section 4.2.1.
(ii) procure that all Users comply with their obligations under the Market Data Agreement and in particular the Contracting Party shall:
a. ensure that its Users may take notice from all changes to the Market Data Agreement which are relevant to them before such changes enter into effect;
b. maintain effective control mechanisms for the prevention of unauthorized use of Information Product by Users;
c. should a User use Information Product in an unauthorized manner, the Contracting Party shall notify EPEX SPOT thereof immediately and shall ensure by taking appropriate measures (if necessary by suspending the supply of Information Product) that the unauthorized use of Information Product ceases immediately, at the latest within 30 days as of knowledge thereof. In the case of extraordinary grave violations, EPEX SPOT shall be entitled to demand an immediate cessation of the Information Product supply to the User in question and seek Contracting Party liability;
d. upon reasonable notice from EPEX SPOT, the Contracting Party will use commercially reasonable efforts to assist the persons designated by EPEX SPOT with performing an Audit of User Locations as permitted by the Vendor Service Agreement between the Contracting Party and such User;
e. on behalf of EPEX SPOT, the Contracting Party will assess and collect from any User that does not have a direct agreement with EPEX SPOT, any fees, interest, damages and penalties to be due to EPEX SPOT from non-compliant User (including any sums deriving from such third party’s agreements with the Contracting Party) on account of such User non-compliant reception, use or retransmission of Product; and
(iii) upon request from EPEX SPOT, stop to redistribute the Product to User.
4.2.2. Honesty Statements and Declaration of Compliance
4.2.2.1. As far as due to technical reasons you do not maintain a reliable electronic Entitlement System for the tracking and administration of all Access IDs entitled at your Subscribers, the Honesty Statements to be requested by you are of material importance. Honesty Statements belong, in particular, to the essential administrative measures within the meaning of Section 4.2.4 by which you shall ensure in your business and the business of your Subscribers that the correct number of entitled Access IDs can be reported to EPEX SPOT, if requested.
4.2.2.2. You shall at least on a quarterly basis, request from the relevant Subscribers, Honesty Statements confirming the number of Access IDs entitled for the individual Information Products. If the entitlement of an Access ID commences or ceases during the period which is covered by the Honesty Statement (quarter or month), then the commencement or finish date shall be shown in the Honesty Statement and taken into account in the Reporting. The Subscribers shall provide you with the Honesty Statements until the 15th day of the month following the end of a quarter, so that the Honesty Statements can be taken into account in the monthly report for the last month of the quarter. The correctness of the Honesty Statements is to be checked by you by appropriate measures. The measures of control carried out by you shall be documented.
4.2.2.3. EPEX SPOT shall retain the right to request from you to the de-entitlement of those Subscribers which have failed more than once within a calendar year to comply with the deadline for submitting the Honesty Statements as is set out in Section 4.2.2.2 above. For this purpose, you shall notify EPEX SPOT about any repeated exceeding of the deadline, if requested.
4.2.2.4. EPEX SPOT shall be entitled to request from you at any time, also outside a formal Audit, the submission of Honesty Statements as well as the documentation regarding the measures of control carried out in accordance with Section 4.2.2.2 above. For this purpose, you shall provide EPEX SPOT upon request at least with copies of the Honesty Statements and the documents regarding the checks of their correctness.
4.2.2.5. If EPEX SPOT has gained knowledge (e.g. within the course of an Audit) that you fail to request Honesty Statements in accordance with the stipulations in Sections 4.2.2.1 and 4.2.2.2 above and/or to control the correctness of the Honesty Statements by appropriate measures in accordance with Section 4.2.2.2 above, EPEX SPOT shall until the implementation of a proper process for the request and control of the Honesty Statements at its choice be entitled:
a) to preliminarily estimate the remuneration to be paid (including remuneration to be paid retroactively for the past) on the basis of appropriate criteria (e.g. reports of other companies which are comparable with respect to the number of employees, turnover figures and other key figures) in accordance with its reasonably exercised discretion and to invoice the remuneration so estimated; and/or
b) to suspend delivery of Information Product or the license for the Information Product Usage; and/or
c) to make the continuation of the Market Data Agreement dependent upon the payment of reasonable corresponding costs for an Audit (full amount or advance); and/or
d) to make the continuation of the Market Data Agreement dependent upon the direct conclusion of Market Data Agreements with certain or all of your Subscribers.
4.2.2.6. The right to terminate the Market Data Agreement with as well as without notice in accordance with Section 5.1.6 shall remain unaffected.
4.2.2.7. Moreover, the External Usage of Licensed Information Product may also be subject to the signature by the Subscribers and Service Providers of a Compliance Declaration according to which they commit to make use of the Licensed Information Product according to the terms of the Market Data Agreement. The above-mentioned rights and obligations of the Parties will then also apply to the Declaration of Compliance.
4.2.2.8. Both Honesty Statements and Declaration of Compliance, if any, shall be registered in Your Account section and/or provided to EPEX SPOT via the Website or any other written or electronic mean.
4.2.3. Remuneration and Units of Count
4.2.3.1. You undertake to pay the remuneration in accordance with the price stated either on the Website or in the Market Data Agreement, according to the Product Catalogue recap (“Catalogue”) in Annex. These prices, as well as the content of this Catalogue, may be modified from time to time by EPEX SPOT. As far as the payment of the remuneration by you is subject to Value Added Tax, the statutory Value Added Tax shall be deemed added to the remuneration set out in the Market Data Agreement. The remuneration is due without any deduction of taxes (e.g. withholding tax or others) and shall exclusively apply for the relationship between EPEX SPOT and you for the purpose of the Market Data Agreement. It does not represent a guideline or recommendation for the fees which you agree in turn with your Subscribers. You shall be completely free regarding your price structure.
4.2.3.2. The Fee includes the Data Fees and the Distribution License Fees, if any, which will be charged from you as of the Effective Date according to the Catalogue and the terms of the Market Data Agreement, either during the ordering process (upfront payment) or upon receipt of invoices.
4.2.3.3. Unless provided otherwise in the Specific Conditions, access to Real-time Information Product may be controlled and recorded for the Reporting by one of the following Units of Count, when available:
a) Access ID
A netted Reporting of Access IDs for one or several Information Product Suppliers shall not be permitted. The sharing of an unique Access ID amongst several Users is not permitted. The use of a unique Access ID for more than one Device (simultaneous access) shall be allowed if:
i) regardless of a real use of these accesses, any further potential access is reported accordingly with the appropriate number and paid; or
ii) the User cannot access Licensed Information Product via more than one Device simultaneously due to technical reasons; or
iii) the Contracting Party directly reports the Internal Usage of the Information Product in question to EPEX SPOT and ensures by specific administrative regulations for the Internal Usage of Information Product (e.g. within compliance policies or other rules with labor sanctions) that only the User registered under the respective Access ID has access to Licensed Information Product. Such a netting via multiple accesses is permitted for the Internal Usage by the Contracting Party only and is not available for its Subscribers. EPEX SPOT shall be entitled to request from you at any time, also outside a formal Audit, the documentation regarding the aforementioned regulations.
b) Single Quote
c) Physical User ID
The Physical User ID allows a summarized Reporting of the Entitlement of Information Product received from one or several Information Product Suppliers per User (netting), even if the access to the Information Product for the User concerned is entitled via several Access IDs. Such netting via one or several Information Product Suppliers is permitted only for the Internal Usage of the Contracting Party and is not available for Subscribers which have not entered into a Market Data Agreement with EPEX SPOT. The use of Physical User IDs as Unit of Count which enables a netting via several Information Product Suppliers triggers specific Data Fees in accordance with the Specific Conditions You have to choose in advance via the Website, or any other written or electronical mean whether the Reporting of your Internal Usage shall be made on the basis of Physical User IDs or on the basis of Access IDs. A Reporting on the basis of Physical User IDs requires prior approval by EPEX SPOT. Within the course of the approval process, you shall, inter alia, submit a test Reporting with specifications on the Information Product Suppliers, Subscriber Codes, the number of Physical User IDs, the netting process and the market data management system employed for the netting. Moreover, during the approval process, EPEX SPOT shall be granted the opportunity to inspect on-site the netting process of the Contracting Party and the market data management system employed for the netting.
After the approval by EPEX SPOT of the Reporting of the Internal Usage on the basis of Physical User IDs, EPEX SPOT will notify the Information Product Suppliers about such Reporting.
As the Reporting and payment is directly performed by you, the Information Product Suppliers shall use specific Product Codes for the Reporting of your Internal Usage. Such specific Subscriber Codes will not trigger any Data Fees.
If you choose a Reporting of your Internal Usage on the basis of Physical User IDs and EPEX SPOT accepts it, such decision shall apply to your entire Internal Usage of all Information Products. You will then no longer be allowed to report parts of your Internal Usage (e.g. regarding certain Information Products) on the basis of Access IDs. Exempt from this is the Internal Usage on the basis of Access IDs “without automatic update” which shall be respectively reported and paid additively. A change of the Reporting of the Contracting Party's Internal Usage back to Access IDs as Unit of Count is only possible via the Website or any other written or electronical mean upon 60 days’ notice with effect to the end of a calendar month. Such change will again cover your entire Internal Usage of all Information Products.
d) Any other Unit of Count as specified in the Market Data Agreement.
4.2.3.4. The Fee shall be paid according to the terms of the Catalogue and before delivery of the Information Product or performance of the Service. In any case, all invoices shall be due and payable immediately within thirty (30) days. If the amounts invoiced are not paid in full within the due date mentioned in the related invoice, the due amounts are increased, by right and without the need for a formal notice to pay, by a one-time recovery fees of forty (40) Euros and any additional recovery costs as duly documented, in addition to interests for late payments, applicable for each day after the due date, at a rate equal three (3) times the legally chargeable interest rate (article. L.441-3 of the French Commercial Code). These recovery fees and interests for late payments are due as from the day following the due payment date mentioned on the invoices. The right of EPEX SPOT to obtain further compensation for further default damages shall remain unaffected.
4.2.3.5. Moreover, if, after the expiration of the 30 days’ deadline, you fail to pay an outstanding invoice within a further deadline of 14 days set or not in a written demand for payment, EPEX SPOT shall at its choice be entitled to:
a) suspend the supply of the Licensed Information Product or the license for the Information Product Usage, as the case may be, until all outstanding invoices are settled in full, and/or
b) terminate the Market Data Agreement for cause under Section 5.1.6 shall remain unaffected.
4.2.3.6. The remuneration specified in the Market Data Agreement may be amended by EPEX SPOT unilaterally, without limitation, in the following cases:
a) the content of the Licensed Information Product has been expanded;
b) the value of the Licensed Information Product has increased;
c) the costs for making the Information Products available have increased;
d) the structure of the remuneration for the Information Products shall be changed partially or in total; or
e) an adaptation of the remuneration is necessary in order to adapt the fee level of EPEX SPOT to the respective fee level of other international exchanges or other comparable Information Product suppliers and Information Product providers.
4.2.3.7. Adjustments of the Fee shall be made by EPEX SPOT according to its reasonably exercised discretion, taking adequately into account your legitimate interests. Fee changes will be announced with at least 60 days’ notice. Unilateral changes of the Fee by EPEX SPOT not falling under the cases listed above shall entitle you to terminate with 30 days’ notice the Information Products affected or, alternatively, the entire Market Data Agreement, effective at the time the unilateral Fee changes take effect.
4.2.4. Reporting
4.2.4.1. When disseminating Real-time Information Product, you shall ensure by appropriate technical and administrative measures in your business and the business of your Subscribers that the real number of the relevant Units of Count (e.g. the entitled Access IDs, the allocated Physical User IDs and/or the single quotes) supplied by you can be reported to EPEX SPOT.
4.2.4.2. Your ability to prepare proper, that means, in particular, correct and complete, reports is a condition precedent for the conclusion of the Market Data Agreement and is to be proven upon request by EPEX SPOT any time. As far as EPEX SPOT has gained knowledge (e.g. within the frame of an Audit) that you fail to maintain the necessary technical and administrative requisites for a proper Reporting, EPEX SPOT shall at its choice be entitled, without limitation nor prejudice to any other rights EPEX SPOT may be entitled to under the Market Data Agreement or law, to:
a) preliminarily estimate the remuneration to be paid (including remuneration to be paid retroactively for the past) on the basis of appropriate criteria (e.g. reports of comparable other companies) in accordance with its reasonably exercised discretion and to invoice the remuneration so estimated; and/or
b) suspend delivery of Information Product or the license for the Information Product Usage until a proper Reporting has been established; and/or
c) make the continuation of the Market Data Agreement dependent upon the payment of reasonable costs (full amount of advance) for an Audit; and/or
d) make the continuation of the Market Data Agreement dependent upon the direct conclusion of Market Data Agreements with all or certain of your Subscribers; and/ or
e) prohibit the Reporting of the Internal Usage on the basis of Physical User IDs;
f) the right to terminate the Market Data Agreement with as well as without notice in accordance with Section 5.1.6 shall remain unaffected.
4.2.4.3. The Contracting Party may also report its own Internal Usage of the Licensed Information Product in form of entitled Access IDs (or, subject to the requirements in Section 4.2.3.3 c), on the basis of the Physical User IDs), except for the Usage of the Information Product by the Contracting Party for purposes of the development, operation, testing and quality control of the systems employed for the External Usage of the Information Product. Such exception from the Reporting obligation is not available for the Subscribers, i.e. regarding the Subscribers also the Internal Usage of the Information Product for purposes of the development, operation, testing and quality control of the systems employed is always to be reported.
4.2.4.4. You shall electronically transmit to EPEX SPOT, including via the Website or any other written or electronical mean, the monthly Reporting figures by the 15th day of the consecutive month (“Reporting Deadline”). The Reporting obligation under Section 4.2.4 is fulfilled only if the Reporting is carried out correctly so that EPEX SPOT can automatically process the Reporting figures. In the case of late delivery of the Reporting figures, EPEX SPOT shall be entitled, without any reminder, to charge for the period of delay interest on the remuneration resulting from the Reporting at the rate set under section 4.2.3.4 above. The right of EPEX SPOT to the compensation of further damages resulting from default shall remain unaffected. Corrections to the reports which lead to lower variable fees are possible only within six (6) months after the Reporting deadline within the meaning of the first sentence.
4.2.4.5. You shall report in case of a billing per Access ID or Physical User ID the number of all entitled Access IDs or of all allocated Physical User IDs, as the case may be, irrespective of its actual use and in case of a billing per single quotes the number of all single quotes.
4.2.4.6. If you have not transmitted the outstanding report until the end of the month following the Reporting Deadline, EPEX SPOT shall at its choice be entitled to:
a) preliminarily estimate the remuneration to be paid on the basis of appropriate criteria in accordance with its reasonably exercised discretion and to invoice the remuneration so estimated as a payment made in advance; and/or
b) suspend delivery of Information Product or the license for the Information Product Usage until the proper delivery of the outstanding reports; and/or
c) make the continuation of the Market Data Agreement dependent upon the payment of reasonable costs (full amount of advance) for an Audit;
d) the right to terminate the Market Data Agreement without notice under Section 5.1.6 shall remain unaffected.
4.2.4.7. The documents and data files as well as the records produced by the Entitlement Systems employed which are important for the Reporting and the Audits shall be retained by you for a minimum of five (5) years and must be made available to EPEX SPOT in the event of an Audit. You shall further ensure that also the Subscribers for Real-time Information Product and Service Providers retain the documents and data files as well as the records produced by the Entitlement Systems employed which are important for Audits for a minimum of five (5) years and make them available in the event of an Audit.
4.2.4.8. In the event of incorrect or incomplete representations in the Reporting, in particular regarding the Entitlement, as well as in the event of missing reports in spite of a Reporting obligation on your part, the remuneration missed by EPEX SPOT due to the improper Reporting shall be paid retroactively. In this regard, EPEX SPOT shall be entitled to demand interest pursuant to Section 4.2.3.4 as of that point in time when interest would have accrued in the case of correct Reporting.
4.2.4.9. In the case of incorrect or incomplete representations made willfully or gross negligently in the reports, in particular regarding the Entitlement, or in the case of a willful or gross negligent failure to report in spite of a Reporting obligation on your part, EPEX SPOT shall be entitled to charge an exceptional fee in addition to the remuneration to be paid retroactively in accordance with Section 4.2.4.8, which shall at maximum equal the remuneration to be paid retroactively including interest.
4.2.5. Other Obligations of the Contracting Party
4.2.5.1. At the request of EPEX SPOT, you shall provide us with an overview of your company, in particular regarding the object, corporate structure, experience in the fields of data dissemination and data security, and the hardware and software used (including user administration, Entitlement System and security concepts). With regards to the information given to EPEX SPOT by you, the confidentiality obligation of EPEX SPOT deriving from Section 4.3 shall apply in full.
4.2.5.2. You are strictly advised to validate the accuracy and the completeness of the Information Product delivered via an automated data validation system.
4.2.5.3. You are responsible for the compliance of your application with the technical requirements, Specifications and rules set forth by EPEX SPOT. Therefore, you acknowledge and agree that in any case and pursuant to your obligation to ensure the proper functioning of the EPEX SPOT Markets, we reserve the right to deny or limit the access of any Member or User to the Trading System, API or any other Information Product through an application which could endanger their stability. The access to the application or any update of the application developed or used by you shall be subject to the successful Conformance Test. Upon successful Conformance Test of your application by EPEX SPOT (i.e. your application complies with our technical requirements), we will inform you that your application is authorized to access the EPEX SPOT Markets, Trading System, API or any other Information Product.
4.2.5.4. In providing Members with access to EPEX SPOT Markets through your application, you shall ensure that each Member has access only to the EPEX SPOT Market segment it has subscribed at EPEX SPOT. With regards to Information Product, which is transmitted electronically, you shall be responsible for making sure that you or the Member fulfil the required technical preconditions for receipt thereof at any time. EPEX SPOT may not be held liable for any malfunctions or failures of transmission which are attributable to a lack of compliance with your technical preconditions.
4.2.6. Obligations of the Users
4.2.6.1. Users:
(i) Shall not use Information Product to create any tradable financial product listed on an exchange or any index (i.e. any numerical representation of the value or volatility of a market or market sector calculated from time to time on a standard basis, in order to reflect movements in the underlying constituents) to be used as reference price underlying such tradable financial products nor any other Index as defined by the Benchmark Regulation EU 2016/1011;
(ii) Shall not have any Property Right on the Information Product;
(iii) May be requested to sign the Declaration of Compliance referred to under Section 4.2.2, prior to the use of Information Product.
4.3. Confidentiality and data protection
4.3.1. The Parties shall keep confidential all Information Product and information, whether or not marked as confidential, including but not limited to Test Market Data, presentations, individual assets, financial information, software, directly or indirectly related to the Market Data Agreement and exchanged in the framework of its negotiation or implementation, unless:
a) Such Information Product and information has become public knowledge otherwise than in breach of the Market Data Agreement;
b) to the extent disclosure is ordered by a state, provincial or federal agency, authority, court or tribunal of competent jurisdiction, including a securities regulatory authority, provided that such Party gives prompt notice to the other Party, if legally permitted
c) disclosure is made in confidence to their professional advisors or service providers (who are subject to confidentiality obligations); or
d) as far as solely General Conditions are concerned, disclosure is made to Users and Authorized Distributors relating to such Users’ and Authorized Distributors’ receipt and/or use of Information Product.
e) These Information Product shall also be treated as “trade secrets” according to the Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business Information Product (trade secrets) against their unlawful acquisition, use and disclosure, and the transposing French Law LOI n° 2018-670 du 30 juillet 2018 relative à la protection du secret des affaires, which the Contracting Party and Users also commit to comply with.
4.3.2. Save as provided above, disclosure may only be made with the prior written consent of the other Party. In particular it is agreed that (i) Information Product is not considered as confidential Information Product under the Market Data Agreement and (ii) all Information Product and Data provided by or relating to the Contracting Party and its Authorized Distributors and Users of which EPEX SPOT may become aware during the term of the Market Data Agreement shall be treated as confidential.
4.3.3. Within the frame of the preparation, negotiation or performance of the Market Data Agreement, the Parties may receive and/or collect Personal Data of employees or any other representative of the Parties, or any other natural persons (the “Data Subject”).This includes among others their contact details (name, email and postal address, phone number, identification documents) and connection details (“Personal Data”). When the Personal Data is collected directly by EPEX SPOT, any detail related to the processing of such Personal Data, including the rights of Data Subjects, is available in EPEX SPOT Privacy Policy When the Personal Data is collected indirectly via the Contracting Party, the latter warrants that the collection and processing of Personal Data by it, including the transfer itself by it to EPEX SPOT, has been and, up to the moment of the transfer, will continue to be carried out in accordance with all applicable data privacy regulation. EPEX SPOT can thus freely process Personal Data. Moreover, the Contracting Party commits to comply with all applicable data privacy regulation while processing the Personal Data provided by EPEX SPOT. In case the Contracting Party is located outside the European Union and in a country which does not have an adequate level of protection, the Contracting Party commits to adhere, sign and comply with the Standard contractual clauses for the transfer of personal data from the Community to third countries, according to the Commission Decision of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries (see Annex 2). Notwithstanding Section 4.5, if EPEX SPOT is held liable by a Data Subject for any breach of applicable data privacy regulation due to the processing of Personal Data collected indirectly via the Contracting Party, the latter will indemnify EPEX SPOT for any cost, charge, damages, expenses or loss it has incurred.
4.4. Intellectual Property Rights
4.4.1. Any Intellectual Property Rights in the Services which form the subject of the Agreement shall remain EPEX SPOT’s property. In particular, EPEX SPOT have sole exclusive rights and control over all SPOT Market Data.
4.4.2. A right of use regarding the Information Product provided may be granted in the Agreement.
4.4.3. The Agreement does not involve the transfer of any Intellectual Property Rights to the Contracting Party, even regarding the information we share with you (including but not limited to software specification and Test Market Data). Your right of use regarding that information is only granted within the limit and under the condition established by the Agreement. For the avoidance of doubt however, the Intellectual Property Rights in any Derived Information Product created by the Contracting Party or by a User, to the extent allowed by the Agreement, will rest with the creator of the Derived Information Product.
4.4.4. In respect of rights of the Contracting Party or any User to create Derived Information Product, the Agreement does not create any tradable financial product listed on an exchange or any index (i.e. any numerical representation of the value or volatility of a market or market sector calculated from time to time on a standard basis, in order to reflect movements in the underlying constituents) to be used as reference price underlying such tradable financial products without entering into a specific agreement with EPEX SPOT. The Contracting Party shall include such a provision in agreements with Users and Authorized Distributors and make them aware of the provisions of this Section 4.4.4.
In order to protect the trade secrets and other Intellectual Property Rights of EPEX SPOT, you warrant that you will not reverse engineer, disassemble, or otherwise attempt to derive the source code from of any system put at your disposal.
4.5. Warranties and liabilities of the Parties
4.5.1. We do not provide any guarantee with regards to the fact that the Information Product which is updated on a Realtime basis is made available at a given point in time, complete or free of errors. Under certain circumstances, there might be delays in the transmission of the Information Product. We may not be held liable for any delays or failures of transmission and / or receipt.
4.5.2. Without prejudice to other provisions of the Market Data Agreement, we (a) do not accept any liability for the accuracy, the completeness, correctness and timeliness of the Information Product, including partial or complete unavailability of the Trading System or the access to the Test Market Data and (b) cannot guarantee that the Information Product will be provided without interruption and with complete availability.
4.5.3. The Information Product is exclusively made available for the purpose of Information Product and do not constitute any investment counselling. None of the Information Product establishes an offer to sell or advertisement regarding offers for the purchase of Products which are traded on the exchange.
4.5.4. We shall not be held liable toward you or any of your client using the application developed by you for any losses, damages, costs or expenses arising from such use of the application, including, but not limited to, loss of profits, loss of use, direct, indirect, special, punitive, exemplary, incidental, consequential loss or damages. In the same vain, we shall not be held liable for damage unless such have been caused by Material Breach, intentional misconduct, fraud or gross negligence on our part.
4.5.5. Notwithstanding your liability to pay the Fee, our aggregated liability towards you shall not exceed the total amount of the Fee collected by us over a one-year period.
4.5.6. Neither Party will be liable in contract or tort or otherwise for:
a) any indirect, consequential or special losses, even if such Party has been advised of the possibility of such indirect, consequential or special losses; or
b) any acts or omissions of third parties, including but not limited to Users, except as provided under Sections 4.4.3 and 4.4.5. Notwithstanding the forgoing, it being agreed that acts or omissions of your Affiliated Companies, advisors, Service Providers and other third parties dully authorized by you, shall be considered as acts or omissions performed by you.
4.5.7. Each Party represents, warrants and covenants that it has the legal right and full power and authority to execute and perform its obligations under the Market Data Agreement and to grant all rights and licenses granted by it under and in accordance with the terms of the Market Data Agreement.
4.5.8. We represent, warrant and covenant that the Services and the use or access of the Services in accordance with the Agreement does not and will not infringe any Intellectual Property Right or rights of privacy of any third party. Upon notice of any claim related thereto, or, if in our reasonable opinion, such a claim is likely, we will have the right, at our option, to : (a) procure your right to continue to use the Information Product; (b) modify the Information Product so that it becomes non-infringing; or (c) remove the affected Information Product.
4.5.9. However, in case the Licensed Information Product does not originate from us but from Third-Party Rights' Holders, we have no opportunity to review the correctness of the Information Product and cannot ensure the timeliness and completeness of the delivery of such Information Product. Therefore, we do not assume any liability for the correctness, completeness and timely dissemination of such Information Product.
4.5.10. By entering into the Market Data Agreement, you do not enter into any contractual relationship with Third-Party Rights' Holders; thus, you have neither statutory nor contractual claims for damages against them. As a matter of precaution, we both agree that the limitation of liability above shall apply to their benefit mutatis mutandis.
4.5.11. Damage claims of the Contracting Party shall become time-barred after two (2) years as far as the Specific Conditions do not provide for a shorter period and the claims do not derive from an injury of life, body, health or freedom or from willful intent. The deadline shall commence at the end of that year within which the claim has arisen, and you have gained knowledge about the circumstances constituting the claim and the identity of the debtor or without gross negligence could have gained knowledge.
