DIA Data Usage Agreement

General Terms and Conditions regarding Data Usage

Version 1.0

Effective as of September 1, 2022

DIA, Baarerstrasse 10, 6300 Zug, Switzerland (hereinafter “DIA“)

1. Scope of Application 

These General Terms and Conditions are applicable to all Usage of Data irrespective of whether it is based on an Agreement with DIA or not. 

2. Definitions 

Capitalised terms (except for titles) used in the Agreement and in these General Terms and Conditions shall have the meanings assigned to them in this section 2. 

Agreement means the individual Agreement regarding Data Usage concluded between DIA and Customer including these General Terms and Conditions in the version as effective at a relevant time. 

Commencement Date is the date on which the Agreement becomes effective as it is defined in Annex 1 of the Agreement. 

Customer means the natural or legal person being the co-contractor of DIA regarding the Agreement.

Data means any information marketed by DIA, including quotations, prices, indices or any other information. In particular, Data relates to all information directly or indirectly included in the data feeds of DIA. 

General Terms and Conditions means these General Terms and Conditions regarding Usage of Data in the version being effective at a relevant time. 

License means the license granted under section 3 of these General Terms and Conditions. 

Oracle Smart Contract means the smart contract deployed or to be deployed by DIA on the Ethereum blockchain for the purposes of this Agreement.

Usage means all accessing, processing or consumption of Data. 

Parties means the co-contractors of the Agreement, i.e. DIA and the Customer. Party means one of the Parties. 

Purpose(s) of Usage means the purpose(s) of the Usage as declared in Annex 1 of the Agreement, excluding however any Restricted Usage. 

Restricted Usage means redistribution, display or dissemination of Data or other works based on, referring to, or derived from Data (“Derived Works”) to any Third Party; and

Usage of Data or authorized Derived Works, directly or indirectly, to create any of the following Derived Works, whether for internal use or otherwise: (i) indexes, fixing or other benchmarks, (ii) generic of fair value prices; or (iii) valuations of digital currencies, digital tokens, securities, or financial derivatives; and

Usage of any Data or Derived Works as a benchmark, including, without limitation:

• Issuance of a financial instrument which references Data or a Derived Work; or
• Determination of the amount payable under a financial instrument or a financial contract by referencing Data or a Derived Work; or
• Being a party to a financial contract which references Data or a Derived Work; or
• Providing a borrowing rate calculated as a spread or mark-up over Data or a Derived Work and that is used as a reference in a financial contract to which the creditor is a party; or
• Measuring the performance of an investment fund through Data or a Derived Work for the purpose of tracking the same, of defining the asset allocation of a portfolio, or of computing performance fees; and

any other Third Party Usage, except if DIA has approved such Third Party Usage in accordance with section 5.  

Term means the time period between the Commencement Date and the termination of the Agreement.
Third Party means any natural or legal person other than DIA or the Customer. 

Third Party Usage means any use of the Data for the purpose or with the effect of enabling any Third Party to make, directly or indirectly, any Usage of the Data licensed to the Customer under this Agreement. 

Undeclared Usage is any Usage (i) for which no Agreement has been effective at the time of the use, or (ii) which is not covered by the Purpose of Usage, or (iii) which is a Restricted Usage. 

Wallet Address means the Ethereum account set up by DIA for the purpose of funding the Oracle Smart Contract.

3. License 

DIA undertakes to grant and grants the Customer hereby a non-exclusive, non-transferable, non-sublicensable and revocable License to receive Data exclusively for the Purpose of Usage during the Term of the Agreement. 

This License does not limit the right of DIA to add, delete or alter Data or certain content of Data from time to time depending on its operational requirements. 

4. License Fee 

Customer undertakes to pay a License fee to DIA which covers the licensing and use of data whose intellectual property rights are owned by DIA. The price of the License fee is defined in Annex 1 of the Data Usage Agreement. 

The License fee is also applicable to any person making Usage before or without having entered into an Agreement. 

In general the License fees will be invoiced as defined in Annex 1 of the Data Usage Agreement. Customer shall be in default without any further notification at the time when the License fee is due. If the Customer is in default of paying the License fee, penalty interests of 5 percent per year, calculated on a monthly basis from the due date, will apply. 

In the case of Undeclared Usage, the License fee for such Undeclared Usage is payable and due retroactively for the time during which the Undeclared Usage has been made. The rule on penalty interests as set out in paragraph 3 of this section will apply. If the Undeclared Usage has been made by intent or gross negligence, DIA is allowed to apply liquidated damages of up to twice the License fee that would have been payable if the Undeclared Usage had been declared. If the damages sustained exceed the liquidated damages, DIA is entitled to compensation for all damages sustained. 

5. Customer’s Usage 

The Customer’s right to Usage of the Data is limited to the Purpose of Usage. The Usage is subject to review and prior approval by DIA of the proposed form and its content. DIA reserves the right to determine whether a proposed form of use qualifies as permitted Usage. 

Without limitation to the foregoing in this section 5, any Third Party Usage is subject to DIA’s prior approval, and the Customer is obligated to inform DIA about any contemplated Third Party Usage in advance. DIA may reject its approval of any Third Party Usage at its discretion, including, in particular, if the Customer does not commit to paying a License fee for the Third Party Usage. 

Any Usage or other use of Data is deemed to be a breach of the Agreement unless it is based on a valid Agreement. 

If Customer wishes to change or extend its Usage, it shall inform DIA in writing and request for prior approval. DIA undertakes to examine the request immediately and respond in due time. Before receiving approval by DIA, Customer is not entitled to change or extend its Usage. 

6. Indemnification and Representations

To the maximum extent permitted by law, Customer must indemnify and hold harmless DIA, its affiliates, and its and their respective directors, officers, employees, and agents (“DIA Protected Parties”) against all liabilities, costs, damages, and expenses arising out of or relating to your use of Data, including damages arising directly from your act or omission (including without limitation breach of these General Terms and Conditions) as well as judgments, settlements, and expenses (including reasonable attorneys’ fees and legal costs) arising from a threatened or actual suit, investigation, proceeding, or other claim between you and a DIA Protected Party or between a third party and a DIA Protected Party arising out of or relating to your use of Data. DIA may control the defense of any such claim, at your cost and expense, and you will provide DIA any assistance that DIA reasonably requests in defending any such claim.

You affirmatively declare that you are not: (a) an individual or entity subject to economic, trade, or financial sanctions, embargoes, or other restrictive measures imposed, administered, or enforced by any governmental or international authority, nor are you listed on any prohibited or restricted parties registry, including but not limited to those maintained by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, the European Union, or the United Nations; (b) a citizen, resident, or entity established, domiciled, or operating in any country, territory, or region that is the target of comprehensive national or international economic sanctions, such as those imposed by the United States, the European Union, or the United Nations.

Furthermore, you certify that your access to and utilization of our services will be in strict adherence to all relevant domestic and international laws and regulations, including but not limited to those pertaining to financial markets, anti-money laundering, and counter-terrorism financing. You assure that you will not, under any circumstances, employ our services for any activities that are unlawful, illicit, or in violation of these sanctions and regulations. This includes, but is not limited to, activities that facilitate, support, or advance any form of illegal transactions, money laundering, terrorist activities, fraud, or other financial crimes.

In the event of a breach of these representations, or if it becomes evident that these representations were false or misleading at the time they were made, you acknowledge and agree to be subject to appropriate legal action, which may include, but is not limited to, termination of access to our services, reporting to relevant authorities, and potential legal proceedings. You also acknowledge that such breaches may expose you to civil and criminal penalties under applicable laws and regulations.

7. Warranties and Liabilities 

DIA undertakes reasonable endeavours to ensure the accuracy, reliability, timeliness and continuity of the Data and to correct at its expense any errors in the Data as soon as reasonably practical and to the extent in which it is within the reasonable control and ability of DIA. Notwithstanding the above, DIA does not warrant the accuracy, reliability, timeliness and continuity of the Data. 

Any representation, warranty or condition, whether express or implied, as to the fitness of the Data for a particular Usage is expressly excluded by DIA. 

DIA will be liable and indemnify Customer for any direct loss and damage adequately arising from a breach of this contract by DIA if this breach of contract is based on intentional misconduct or gross negligence of DIA, but not if it is based on ordinary or simple negligence. DIA shall not be liable for any kind of indirect losses or damages of Customer (such as loss of profits or contracts). The liability of DIA shall in any event not amount to more than the License fees paid by the Customer to DIA under the Agreement during the last twelve months prior to the notification of the claim. 

Neither DIA nor Customer will be liable for any failure to meet its obligations of the Agreement if this is due to any cause outside its reasonable control, such as acts of God, war or natural disasters. Computer viruses and intentional attacks on computer systems qualify for acts of God if the computer systems were protected to an appropriate level. 

8. Intellectual Property Rights 

Customer acknowledges that DIA owns, and will continue to own, all intellectual property and any other rights regarding the Data as far as the Data has not been supplied to DIA by Third Parties who retained the exclusive ownership of the intellectual property rights. 

9. Amendments of General Terms and Conditions 

The General Terms and Conditions can be amended by DIA unilaterally at any time. Amendments have to be communicated electronically or by mail to the Customer not later than three months before they become effective. If Customer does not agree with the amendments, it has the right to terminate the Agreement by giving notice to DIA not later than one month before the amendments become effective as per the date when the amendments become effective. 

10. Termination 

The Agreement may be terminated by DIA or the Customer by giving written notice to the other Party as follows: 90 days written notice if by DIA, 30 days written notice if by the Customer.

The Agreement may be terminated extraordinarily with immediate effect or as per another date specified in the written notice by any Party not at fault, be it DIA or the Customer, if any of the following events occurs: 

• if a Party to the Agreement commits a material breach of the Agreement and fails to remedy such a breach within 30 days after receiving written notice of the other Party requiring it to remedy the material breach; and 
• if a Party suspends payments or if its financial situation has significantly deteriorated, which includes inter alia if a Party declares itself or becomes insolvent, or is declared in suspension of payments, or applies for or consents to or suffers the appointment of an administrator or receiver or liquidator or enters into a general assignment or composition with or for the benefit of its creditors, or an order is made or effective resolution is passed for the winding up or dissolution of a Party, or if a Party ceases to carry on its business. 

In the case of an extraordinary termination by DIA pursuant to paragraph 2 of this section, Customer is not entitled to repayment of the balance of any advance payments paid to DIA under the Agreement. 

In the case of a termination by Customer pursuant to paragraph 1 of this section or in the case of an extraordinary termination by Customer pursuant to paragraph 2 of this section, Customer is entitled to the repayment of the balance of its advance payments paid to DIA under the Agreement on a pro-rata basis. 

11. Confidentiality 

The Parties acknowledge that information of a confidential nature relating to their business activities may be disclosed under the Agreement. DIA and Customer undertake not to disclose such information, without the consent of the other Party, to any Third Party for any purpose other than required for the performance of the Agreement. 

This obligation does not apply to information that DIA or Customer discloses to a public authority upon being requested to do so by this authority. 

12. General Provisions 

Notices 

All notices or other communications to be given to DIA under or in connection with the Agreement shall be made in writing and in English or German, and shall be delivered by registered mail, by an internationally recognized courier to the following address: 

DIA, Baarerstrasse 10, 6300 Zug, Switzerland

All notices or other communications to be given to Customer under or in connection with the Agreement shall be made in writing and in English and shall be delivered electronically or by mail to the Customer’s contact as defined in Annex 1 of the Agreement. 

Entire Agreement 

The Agreement constitutes the entire agreement and understanding among the Parties with respect to the subject matter of the Agreement and shall supersede all prior oral and written agreements or understandings of the Parties relating hereto. 

Amendments and Waivers 

Subject to section 9 of these General Terms and Conditions, the Agreement may only be modified or amended in writing by a document signed by the Parties. Any provision contained in the Agreement may only be waived by a document signed by the Party waiving such provision. These rules apply also for an amendment or waiver of this section. 

No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under the Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. 

Assignment 

Every assignment by the Customer of any rights or obligations of the Agreement to any Third Party is not valid without the prior written consent of DIA. 

Severability 

Should any part or provision of the Agreement be held to be invalid or unenforceable, the other provisions of the Agreement shall nonetheless remain valid. In this case, the Parties shall negotiate in good faith a substitute provision that best reflects the economic intentions of the Parties without being unenforceable and shall execute all agreements and documents required in this connection. 

13. Governing Law and Jurisdiction 

Governing Law 

These General Terms and Conditions shall be governed by and construed in accordance with the substantive laws of Switzerland, with the exclusion of its conflict of law rules. 

Jurisdiction 

All disputes arising out of or in connection with these General Terms and Conditions, including disputes on its conclusion, binding effect, amendment and termination, shall be resolved exclusively by the Courts of Zug.