AGREEMENT FOR DATA DISTRIBUTION
This agreement for data distribution is entered into on
BETWEEN:
BELPEX S.A., a company incorporated and existing under the laws of Belgium, having its registered offices at 66, Boulevard de l’Impératrice, 1000 Bruxelles, and registered with the Registry of Enterprises in Bruxelles under company number n° 0874 978 602, hereby duly represented byRob Loos, AccountManager, and James Matthys-Donnadieu, CEO, hereafter referred to as "BELPEX";
AND
[COMPANY NAME]
a company incorporated and existing under the laws of[COUNTRY], having its registered offices at [ADDRESS]and registered with[REGISTRATION WITH TRADE REGISTER OR COMPANY NUMBER],hereby duly represented by[NAME AUTHORIZED REPRESENTATIVE 1]and[NAME AUTHORIZED REPRESENTATIVE 2],hereafter referred to as “Vendor”.
WHEREAS:
Vendor develops and markets computer applications and data services which use and distribute pricing data.
Vendor possesses the know-how, skills and experience to provide database information services to its customers.
BELPEX owns all rights to the Data (as defined hereafter) and agrees, subject to the terms and conditions of this Agreement, to supply the Data to Vendor for incorporation in its database information services.
IT IS AGREED as follows:
1.INTERPRETATION
1.1.In this Agreement except where a different interpretation is clear from ornecessary in the context the following terms shall have the following meanings:
“Agreement” this agreement including its annexes, appendices or attachments;
“BELPEX index”the index/indices produced by BELPEX based on trading data on the trading platform operated by BELPEX, as listed in the index summary published on the BELPEX Website;
“BELPEX”BELPEXNV, the company operated by BELPEX;
“BELPEX Data and Reports”all publicly available data and reports regarding the BELPEX Index as published by BELPEX on its Website
“Commencement Date”the date of this Agreement as indicated on the first page of this agreement
“Customers”the users of the Products by virtue of an agreement entered into with Vendor, for the avoidance of doubt, Customers shall not refer to participants or members of the trading platform operated by Belpex by virtue of an agreement entered into with Belpex;
“Data”the BELPEX index and the BELPEX Data and Reports that may be amended from time to time by BELPEX;
“Intellectual Property Rights”means patents, trademarks, service marks, registered designs, logos, applications for any of those rights, moral rights, trade and business names (including internet domain names and email address names), unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions, trade secrets, rights in confidential information and any other intellectual property rights as well as rights of the same or similar effect or nature in each case in any jurisdiction;
“License”the sub license granted by BELPEX to Vendor pursuant to Article 4 below;
“License Fee”the amounts due by Vendor pursuant to Article 6 below as consideration for the License
“Product”means all computer programs, systems and database services, including web-based services, owned, developed, licensed and/or marketed by the Vendor;
“Market Rules”means the market rules of BELPEX as amended from time to time and published in the Belgian Official Gazette;
“Term”the period of 1 year commencing with the Commencement Date;
“Territory”the World;
“Website”means the website that is accessed through ;
1.2In this Agreement unless the context requires otherwise:
1.2.1.words importing the singular number shall include the plural and vice versa;
1.2.2.words importing any particular gender shall include all other genders;
1.2.3.references to persons shall include bodies of persons whether corporate or incorporate;
1.2.4.words importing the whole shall be treated as including a reference to any part of the whole.
1.3Any reference in this Agreement to any statute or statutory provision shall be construed as referring to that statute or statutory provision as it may from time to time be amended, modified, extended, re-enacted or replaced (whether before or after the date of this Agreement) and including all subordinate legislation from time to time made under it.
1.4References in this Agreement to clauses, schedules and exhibits are to clauses of and schedules and exhibits to this Agreement except where otherwise expressly stated.
1.5Headings are used in this Agreement for the convenience of the parties only and shall not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses, schedules or exhibits to which they relate.
2SUPPLY OF DATA
2.1BELPEX agrees to supply to Vendor the Data in the form and by the methods of delivery and at the times specified for the purposes set out in Article 3 and Article 4 below during the Term in accordance with and subject to the provisions of this Agreement.
2.2BELPEX shall determine on a discretionary basis the content of the Data and shall at all times have the right upon at least 30 days prior written notice to Vendor to (i) modify such content by adding or deleting information, (ii) suspend the availability of the Data for maintenance or any other purposes, or to (iii) decide to cease making available such Data.
2.3The information contained in the Data is only made available as such for Vendor's use and distribution and does not constitute any form of advice, recommendation, representation or endorsement. BELPEX is not responsible for any business decision taken by Vendor or its Customers that is based on the Data sent through this service.
3COMMUNICATIONS LINK
3.1.BELPEX will provide the Vendor access to the Data electronically and through the means which will be notified to the Vendor following signature of this Agreement. BELPEX shall use all reasonable endeavors to ensure timely availability of the Data, and to solve any technical problems or correct any mistakes in the Data as quickly as possible and to inform the Vendor of errors and/or omissions in the Data as soon as reasonably possible after BELPEX learns of them.
3.2.BELPEX shall provide Vendor with a username and password as is appropriate and in accordance with the Vendor's indication. Vendor shall keep the username and password confidential and ensure that it is not disclosed to any person other than its employees, where necessary for purposes of this Agreement.
3.3.Vendor shall maintain an accurate list of persons to whom the password has been disseminated and make such list available not more than once per calendar year to BELPEX upon written request. Vendor shall notify BELPEX immediately upon becoming aware of any unauthorized use of such username and password.
3.4.BELPEX reserves the right to modify, alter or amend the form or means of delivery by which the Data is supplied upon at least 30 days' written notice to the Vendor, which may be provided by email. BELPEX reserves the right to modify the lay-out of the Data, without changing the form or means of delivery by which the Data is supplied at 7 days’ written notice to the Vendor, which may be provided by email.
4GRANT OF LICENCE
4.1.BELPEX hereby grants during the Term of this Agreement to Vendor a non-exclusive, non-transferable(save as stated below) License within the Territory to:
4.1.1.Access, use, process, convert, reformat and store the Data either by itself or in combination with other information into a format suitable for the Products.
4.1.2.Market and distribute the Data (directly or indirectly) to Customers as part of the Products for use by its Customers in accordance with any of the Vendor's standard terms and conditions in force from time to time.
4.2.The License as referred to in article 4.1 above does not imply the right of Vendor to:
4.2.1.make the Data available to any third party that is not aCustomer of Vendor(other than a distributor of or an agent of the Vendor),for the avoidance of doubt the Vendor may seek BELPEX’sconsent for one or more of its Customers to be allowed to re-distribute the Data to its clients. Subject to the Vendor’s Customer signing up to the appropriate BELPEX (re-vendor) Agreement.
4.2.2.to change, alter or amend the Data itself other than in accordance with Article 4.1.1,
4.2.3.use the Data for calculating indices similar or comparable to the indices as published by BELPEX, and summarized in the index summary, available on the Website.
4.2.4.perform acts which conflict with normal exploitation of the Data or unreasonably prejudice the legitimate interests of BELPEX.
4.3.BELPEX shall at all times have the right to verify on 30 days prior written notice the use of the Data by Vendor under the present Agreement on not less than thirty (30) days prior written notice not more than once per calendar year and Vendor agrees to provide BELPEX with the necessary information to perform such verification.
4.4Vendor is entitled to assign the benefit and burden of this Agreement (together) to any company which directly or indirectly (a) the Vendor owns or controls (b) owns or controls the Vendor (“Parent”) or (c) is owned or controlled by a Parent, subject to the written approval by Belpex, which shall not be unreasonably withheld.
5TERM OF LICENCE
5.1This Agreement is concluded for the period of one year. If after the initial Term the Agreement is not terminated by one of the Parties with a notice period of at least three (3 months, the Agreement is automatically renewed for consecutive periods of one year until it is terminated by the service of either Party of at least three (3) months prior written notice thereof on the other Party before the next anniversary of the Initial Term or under any of the provisions of this Agreement. For the avoidance of doubt both Parties must provide at least 3 months notice effective at the beginning of the next calendar quarter following expiry of this notice period, prior to terminating the Agreement unless there has been a material breach, in which case clause 12.2 applies.
6LICENSE FEE
6.1In consideration of the License granted to Vendor pursuant to Article 4, Vendor shall pay to BELPEX an annual in advance License Fee, as specified in Annex 1 to the present Agreement, with effect from the Commencement Date. The annual License Fee is due each year on 1 January and for the first time at the Commencement Date. Such License Fee is calculated pro rata temporis during a calendar year.
6.2The License Fee payable pursuant to Article 6.1 shall be reviewed annually, and in case amended BELPEX shall notify the Vendor before October, 1 of the current year. In case Parties fail to reach an agreement, the Agreement shall be terminated in accordance with Article 12.1.
6.3The License Fee is exclusive of VAT. Payment is due within thirty (30) days from the date ofservice upon Vendor of BELPEX's invoice, in euro currency and to the account of BELPEX as specified in the invoice.
6.4If the Agreement terminates before the end of a calendar year, the License Fee shallbe not proportionally be reimbursed.
7MARKETING
7.1In any reference made by the Vendor to the Data, Vendor shall use all commercially reasonable efforts to:
7.1.1Refer to the source of the BELPEX Data and Reports as "BELPEX Data and Reports" and not use any abbreviations, acronyms, or alterations; or
7.1.2Refer to the full title of the BELPEX Index being used and not touse any abbreviations, acronyms, or other alterations;
7.2.Vendor shall use commercially reasonable endeavors to ensure that its Customers receiving Data sign an agreement with Vendor which is not inconsistent with which constitutes no infringement on the rights and obligations contained in this Agreement and that includes all necessary obligations to protect the interests and rights of BELPEX arising from any wrongful or unauthorized use of the Data by the Customers to no lesser extent than it protects the rights and interests of the Vendor in the Vendor’s own data. .
7.3.Upon first request of BELPEX Vendor shall allow BELPEX to verify not more than once per calendar year the respect by Vendor of its obligations under articles 7.1. and 7.2. of this Agreement. Such authorization shall include access of BELPEX to the Products as commercialized by Vendorat a location to be mutually agreed by the parties.
8INTELLECTUAL PROPERTY RIGHTS
8.1.Vendor acknowledges that, except for the License granted herein, no Intellectual Propriety Rights are transferred or assigned through the Agreement. All Intellectual Property Rights used or embodied in or in connection with the Data are and remain entirely and exclusively vested with BELPEX.
8.2.Vendor agrees to respect all Intellectual Property Rights of BELPEX in its use of the Data. Vendor shall not during or at any time after the termination of this License in any way question or dispute the Intellectual Property rights of BELPEX.
8.3.All Data are and remain the exclusive property of BELPEX.
9WARRANTY
9.1Except as otherwise set out in the Agreement, no representation, warranty or indemnity, express or implied, statutory or otherwise, whether as to correctness, accuracy, quality, fitness for purpose, non-infringement or any other matter, is given or assumed by BELPEX with respect to the content of the Data or any part of it.
9.2In particular, and without prejudice to the generality of article 9.1., no guarantee is given by BELPEX for:
(i)the correctness and accuracy of market reports, market results, calculations, prices and any other historic or other information that can be consulted through the Data;
(ii)an uninterrupted access or delivery of the Data.
9.3Each party hereto represents and warrants that its entry into this Agreement and each Schedule is lawful and does not violate any other agreement to which it is a party.
9.4BELPEX represents and warrants that it has all necessary rights and licenses to furnish the Data to Vendor and for Vendor to use the Data as contemplated by this Agreement and each Schedule and that the Data do not infringe upon or violate any Intellectual Property Rights of another person.
9.5If a third party claims that Vendor’s of the Data in accordance with this Agreement infringes on any Intellectual Property Rights of a third party, BELPEX shall at its own expense, upon Vendor’s request:
9.5.1procure for Vendor the right to continue using the Data;
9.5.2modify or amend the Data or infringing part thereof so that the same becomes non-infringing; or
9.5.3replace the Data or infringing part thereof by other data of similar content.
In addition to the foregoing rights of Vendor under this Article 9.5 Vendor may terminate this Agreement in accordance with Article 12.
9.6BELPEX warrants and represents that it uses and will continue to use best commercial efforts to exclude from the Datacomputer software code (i) designed to disrupt, disable, harm, or otherwise impede in any manner, including aesthetical disruptions or distortions, the operations of the Vendor(s) the Vendor’s Products, or any other associated software, firmware, hardware, computer system or network (sometimes referred to as “viruses”, “Trojan horses” or “worms”), (ii) that would disable the Vendor’s Products or impair in any way its operation based on the elapsing of a period of time, exceeding an authorized number of copies, or advancement to a particular date or other numeral (sometimes referred to as “time bombs”, “time locks”, or “drop dead” devices), or (iii) that would permit BELPEX to access Vendors products or services to cause such disablement or impairment (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause such programs to cease functioning or to damage or corrupt the Vendor’s, storage media, programs, equipment or communications, or otherwise interfere with its operations.
10LIMITATION OF RESPONSIBILITY
10.1BELPEX shall in no event be liable(other than in cases of willful acts or omissions or gross negligence) for any indirect, special, incidental, or consequential damages arising out of the content of the Data (including arising out of infringement of third party rights), any factual errors in the Data, any interruptions in the service of providing the Data, or the use or inability to use the Data, including but not limited to damages or costs relating to the loss of business profits, business interruption, goodwill, loss of business information, software or computer programs, and claims of Customers or other third parties.
10.2Since use of and access to the Data depends on third parties (e.g. telecommunications carriers) whose performance is outside BELPEX' control, BELPEX disclaims all liability for direct or indirect damages arising from the failure of the transmission or receipt of the Data (or part thereof) due to (i) causes beyond the reasonable control of BELPEX or (ii) causes which are not reasonably foreseeable by BELPEX, including but not limited to interruption or failure of communication or digital transmission links and Internet slowdowns or failures.
10.3BELPEX shall, whether in contract or in tort, only be liable for damages arising out of willful misconduct or fraud and/or gross negligence, and any compensation due in this respect shall be limited (per claim or series of connected claims) to the amount of the License Fee paid in the current year.
11AGREEMENT VARIATIONS
11.1No variation to the terms or conditions of this Agreement shall be effected unless expressly agreed in writing by both parties.
12TERMINATION
12.1Vendor has the right to terminate the Agreement at any time by notifying BELPEX hereof by email or by registered letter, which termination shall be effective as from midnight on 31 December of the relevant year.
12.2Without prejudice to the rights and remedies BELPEX may have under this Agreement or at law (in particular to claim compensation for damages incurred), BELPEX shall have the right to immediately, with written notification and without compensation due by BELPEX terminate the Agreement in case of a material breach by the Vendor of one of the provisions of this Agreement, including failure of the Vendor to pay the License Fee, in the event such breach is not cured within thirty (30) days after written of notification thereof by BELPEX is served in Vendor, provided that there shall be no obligation to notify if such breach is incapable of being cured within thirty (30) days.
12.3Upon termination of the Agreement by BELPEX, Vendor shall no longer have access to the Data and/or be entitled to market, reproduce, publish, rent, lend, expose, distribute and make available the Data to any of its Customers. For the avoidance of doubt clause 12.3 does not apply to historical data.