1.PREAMBLE

Iceberg Data Lab (IDL) developed and operates several original Database and ESG Software assessing the extra-financial profile of Financial portfolios.

Iceberg Data Lab invested substantial economical capital and man.hours at the company’s initiative to develop these products and services.

The Client declares to be interested in accessing the Iceberg Data Lab’s Databases or have recourse to Iceberg Data Lab’s services for its own needs or the need of its clients.

 

2.DEFINITIONS

Acceptance: means the process by which the Customer acknowledges the good performance of the Service.

Affiliate: any entity controlled by, controlling or under the control or under common control of the Client. This control applies by direct or indirect ownership of the majority of the shareholders’ equity in circulation and the voting rights of the entity. If an entity no longer meets these criteria, it will cease to be an Affiliate within the meaning of these General Terms and Conditions;

Agreement: a contract or an order form signed between Data Provider and Client, including its appendix(ices), annex, schedule and amendment as may be supplemented or amended from time to time, and including a framework Agreement covering several sub-Agreements;

Authorized Users: employees working at the Client or its Affiliate who have access to the Database. Some users identified in the Agreement may have additional rights related to the use of the Database, the access to the Platform or to the Research team, which are specified in the Agreement;

Business Days: any Days, where Financial stock Exchanges and Banks are opened in France;

Client: any legal entity that enters into an Agreement with Iceberg Data Lab and which shall be considered as a professional within the meaning of the preliminary article of the French Consumer Code;

Closing Periods: 7 Business days during which Iceberg Data Lab’s office are closed, defined on a yearly basis on its website. They do not include more than 5 consecutive days;

Custom Universe: list of constituents selected by Iceberg Data Lab and a Client;

Data Provider: “Iceberg Data Lab” or “IDL”;

Database: collection of data or other independent elements arranged in a systematic or methodical manner and individually accessible by electronic means or by any other means;

Deliverables: the results of any services performed by IDL and further described in the Agreement;

Delivery: the effective date of the provision of the Deliverables and/or Solution configured and accepted by the Customer

Derived Data: any and all calculations, aggregations and other compilation made by the Client using the licensed Database;

Editor: the holder of the intellectual property rights on the architecture and implementation of the Platform, namely IDL;

Effective date: the date mentioned in the Agreement to start the provision of services;

Fee(s): any fee payable by the Client to access IDL Database or for the provision of services described in an Agreement;

Force Majeure: any event falling under the scope of article 1218 of the French Civil Code and the applicable case-law;

IDL’s Services: Provision of ESG data enabling corporates and financial institutions to report on the ESG impact of their companies, clients, financing, underwriting or investment portfolios managed for their account or for third parties, build investment products, design financing or underwriting policies, measure their risks, optimize portfolio performance or make capital allocation decision, scope applicable to any asset class (corporate, financial institution and real assets);

Licensed Data: Database licensed under the Agreement;

Maintenance: all the maintenance in operational condition provided by the Provider on the Solution;

Marketing Material: any document issued or used by the Client to market its services, including in particular factsheet or performance presentations;

Platform: an electronic website developed and maintained by IDL allowing to operate within the Database or integrating the Solution

Regulatory Materials: any document made available by the Client as required by any legislation or regulation;

Services: means the IT services, SaaS services and any additional services provided by the Provider;

Solution means the applications and services integrated into IDL’s Platform;

Specific Developments: means documented computer programs developed by IDL to handle a given functionality for the Client’s specific needs not covered by the Solution as standard;

Term: the duration of the Agreement;

Universe: list of constituents, updated by the Data Provider, divided into segments (sectoral, geographical or other relevant tranches);

 

3.CONTRACTUAL DOCUMENTS

    a. The General Terms and Conditions apply to all offers and Agreements with Iceberg Data Lab and are deemed to be accepted by the signature of an Agreement. These General Terms and Conditions apply and expressly exclude the applicability of any other general terms and conditions, whatever their title.

 

    b.The contractual documents are made up of the following documents, the order of priority of which is as follows:

– the Agreement;

– the General Terms and Conditions.

In the event of a conflict between documents of a different nature and of different ranks, it shall be expressly agreed between the parties that the provisions contained in the highest-rank document shall prevail.

 

4. OFFER

All offers issued by Iceberg Data Lab are valid for 20 consecutive Business Days. They become an Agreement only if they are signed by the Data Provider and a Client.

 

5. DURATION

    a. Entry into force

A contract shall enter into force on the date of the signature of an Agreement by the Parties.

    b. Duration

The Agreement is concluded for one (1) year period minimum and is automatically tacitly reconducted each year for an unlimited period of time. Any obligation which, expressly or by its nature, is to remain in force after the expiry or termination of the contract, shall continue to be effective according to its own term.

    c. ACCESS TO THE DATABASE

Access : The Client shall ensure that access to the Database is restricted and that only the Authorized Users have access to the Platform. In this respect, the Client undertakes to inform IDL, without undue delay, in the event of an unauthorized disclosure of a password. The Client undertakes to keep these identifiers and access codes secret and not to disclose them;

    d. Password: Authorized Users will be provided a unique password to access to the Platform or to the Solution at the signature of an Agreement or at the starting date defined in the Agreement;

Termination: Iceberg Data Lab may revoke the access to the Database for Clients which are not compliant with the General Terms and Conditions or the Agreement. Should an Authorized User no longer works for the Client, the Client should notify the change to Iceberg Data Base to terminate its access within five (5) Business Days.

    e. Rights: Iceberg Data Lab grants the Client rights of use of the Database, defined in the Agreement. Authorized Users may have specific rights.

 

6. PERFORMANCE

If the Agreement stipulates that the Client should provide specific inputs to allow IDL performing its assessment, IDL will not be obliged to start providing the services agreed in an Agreement until all of these inputs have been provided in the agreed format, quantity and quality.

Delays due to the Client not providing those specific inputs will under no circumstances constitute a situation of default attributable to IDL.

IDL will make every effort to base its assessment from sources it considers reliable whenever possible.

The work and information delivered by IDL to the Client will be considered to have been accepted if IDL has not received any written objection within five business days (5) of Delivery.

 

7. FEES AND PAYMENTS

7.1 Fees: The fees for the provision of data or services by Iceberg Data Lab are defined in the Agreement. The prices are deemed exclusive of sales tax (ex. VAT) and other applicable taxes and levies. Any work will be invoiced separately and sent to the contact person and address specified in the Agreement.

7.2 Indexation: The prices agreed in the Agreement are indexed at each yearly anniversary of its signature. on the basis of the latest published SYNTEC index. The amount of invoices issued shall be calculated by applying the following formula:

P1 = P0 x (I1/I0) in which:

P0 = Price charged in the Agreement for the past year or at the contract’s initiation

P1 = New price charged for the Service for the coming year

I1 = last published EU LCI Labor Cost Index published by Eurostat index at the anniversary date of the Agreement,

I0 = EU LCI reference index of the Agreement for the past year or at the contract’s initiation. If S1 is inferior to S0, the ratio S1 / S0 will be considered equal to 1.

In case of disappearance of the index, express jurisdiction shall be attributed to the President of the Court of ordinary law, to define an index that will be integrated in the review formula. This index shall be chosen in such a way that it is as close as possible to the missing index.

7.3 Additional work: All additional work has to be agreed between Iceberg Data Lab and the Client and will be invoiced to the Client;

7.4 Payment: The invoice will be paid along the invoicing schedule defined in the Agreement. If no schedule has been defined, the invoice will be fully paid upon the Agreement’s signature. Payment of the price means the actual collection of all sums owed by the Client. Payment will be made by bank transfer to the Iceberg Data Lab Bank account specified in the Agreement.

7.5 Non-Payment: In the event of non-payment of sums due at maturity and unless an invoice is disputed in good faith, a formal notice will be sent to the Client. Without prejudice to Article 27, this formal notice shall be sent by registered letter with acknowledgement of receipt to the contact person designated in the Agreement. If no payment is carried out within thirty [30] Business Days, a penalty will be applied automatically for late payment, starting retroactively from the due date at a rate equal to three [3] times the legal interest rate in force on that date, except for carry-over requested by the Client before maturity and accepted by Iceberg Data Lab. In addition, pending the clearance of the Client’s debt, Iceberg Data Lab may refuse any new order and suspend its services.

In the event of delay in payment exceeding thirty [30] days, after the above-mentioned formal notice, excluding carry-over requested by the Customer, and accepted by Iceberg Data Lab, the latter will be entitled to:

    – either suspend any continuation of the services in progress until full settlement of the sums due, within five [5] days of sending the Client a registered letter with acknowledgment of receipt notifying the suspension, without this suspension being considered as a default or a refusal of performance or a termination of the Agreement in relation to the late payment due to Iceberg Data Lab. Such suspension shall not entitle the Client to any compensation.

The resumption of services will be done under conditions to be defined between the parties.

    – Or initiate the termination procedure for breach of the Client’s obligations, without prejudice to the damages that Iceberg Data Lab may claim.

In the case of debt recovery, the amount of the lump sum indemnity for recovery costs, provided for in the twelfth paragraph of Article L. 441-6 of the French Commercial Code, will be applied, i.e. the sum of 40 euros.

 

8. LIABILITY AND INDEMNIFICATION

The parties agree to act in good faith in executing their obligations with respect to an Agreement

By mutual agreement, the parties expressly agree that the liability of IDL shall only be engaged by the Client in case of proven fault.

IDL will indemnify, defend and hold harmless the Client and any of its agents, officers and directors from and against any and all losses, claims, damages, expenses and liabilities (including the cost of investigating or defending against such losses, claims, damages, expenses and liabilities and any legal fees incurred in connection therewith) to which the Client, its agents, officers or directors may become liable as a result of or based upon any claim or allegation relating to:

– any breach of this Agreement by IDL, or

– IDL’s willful default, fraud or negligence in the performance of its obligations under this agreement,

except where and to the extent that such loss arises as a direct result of the negligence, willful default or fraud of the Client.

The Client will indemnify, defend and hold harmless IDL and any of its agents, officers and directors from and against any and all losses, claims, damages, expenses and liabilities (including the cost of investigating or defending against such losses, claims, damages, expenses and liabilities and any legal fees incurred in connection therewith) to which IDL, its agents, officers or directors may become liable as a result of or based upon any claim or allegation relating to:

– any breach of this Agreement by the Client, or

-the Client willful default, fraud or negligence in the performance of its duties hereunder,

except where and to the extent that such loss arises as a direct result of the negligence, willful default or fraud of IDL.

Each party of an Agreement shall, to the extent that it can do so lawfully, endeavor to take all reasonable steps with a view to mitigating any losses suffered by it in relation to activities carried out pursuant to an Agreement.

Neither party will be liable to the other for any loss of business, loss of profits, loss of opportunity, damage to reputation or any indirect or consequential losses arising from any breach of an Agreement or any duty of obligation owned in connection with an Agreement.

Neither party shall be liable for the non-performance of its obligations under an Agreement to the extent that such non-performance is due to a Force Majeure event, provided that the affected party shall notify the other party immediately on the occurrence or existence of such Force Majeure event and provided that such party shall use its reasonable efforts to prevent and to minimize the effect of such Force Majeure event.

IDL shall make its best efforts to provide the Client with a Database that is error-free, complete and/or up to date. However, IDL cannot guarantee it, insofar as IDL is using public data on which it has no control in order to constitute its Database.

IDL cannot be held responsible for investment choices resulting from the use of its Database. In the same way, IDL cannot be held responsible for investment choices resulting from recommendations of analysts or financial intermediaries based on their opinion in whole or in part on the Database.

Thus, the use of the Database by the Client is carried out under the sole control, direction and responsibility of the Client who therefore uses the information contained in the Database at its own risk and assumes sole responsibility for the decisions taken on the basis of the said information without possibly lodging any recourse against the Data Provider in this respect.

 

9. DATA PRIVACY

    a. Legal Obligations

Each party takes in charge its obligations related to the data protection and privacy laws as data controllers. In this respect, in application of the regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and of the French loi Informatique et libertés du 6 janvier 1978, the persons whose personal data are used by Iceberg Data Lab or the Client resulting from the enforcement of the Agreement can access, rectify, erase their personal data and provide guidance concerning the processing of their personal data post-mortem, within the conditions set by the data protection and privacy laws. They can also request a restriction of the processing of their personal data. This demand can be made in written form at the registered headquarter of the companies if no contact point is identified. Each party agrees to inform the data subjects of the processing activities they implement as data controllers.

    b. Cookies

The Client is informed that Iceberg Data Lab implements, in its own name and on its behalf, strictly necessary cookies, performance cookies and functionality cookies, as well as similar devices, on the Platform. A cookie banner displayed on the Platform includes all information necessary to be communicated to the users, in compliance with the applicable law and regulations.

 

10. OBLIGATIONS

    a. Obligations of IDL

By accepting an Agreement, IDL undertakes an obligation to use commercially reasonable efforts to provides the services agreed in an Agreement.

IDL does not provide any guarantee regarding the substantive accuracy, completeness, reliability or usability for the Client of its services, nor regarding its expedience or usefulness for its intended use.

By accepting an Agreement, IDL reserves the right to amend the provision of services, to the extent that such adjustments do not lead to any material changes in the services described in an Agreement.

If any work supplied or made available by IDL to a Client becomes – or may become, in IDL’s reasonable assessment – the subject of a dispute with a third party regarding the violation of patent rights, copyrights or trademark rights, corporate secrets, confidentiality rights or other rights, IDL should at all times do its best efforts to modify or to replace the relevant services, in each case with services of similar usefulness, in order to reverse or remedy the violation or alleged violation. In such cases, the Client must return the work or Database supplied to it fully and completely at IDL’s request.

    b. Obligations of the Client

By accepting an Agreement, the Client agrees to provide all the information, data and sources needed to perform the services and listed in the Agreement.

 

11. INSURANCE

IDL certifies that it has taken out an insurance policy with a solvent insurance company for all the financial consequences of its professional, tortious and/or contractual civil liability due to bodily injury, material and immaterial damage caused to the Client and any third party in connection with the provision of its services.

 

12. PUBLICITY AND COMMERCIAL REFERENCING

The Client will mention IDL as the data supplier of the services and indicators derived from its data in its Marketing Materials.

IDL may quote the Client’s name or any other distinctive sign belonging to him, including his trademark or logo, as a commercial reference in accordance with commercial usage.

This mention may be made via a redirection to a website.

 

13. AUDIT

IDL may, subject to reasonable prior notice, audit the Client to ensure that the appropriate means are implemented to ensure the confidentiality of the Database and the respect of the terms of the General Terms and Conditions and of the Agreement.

IDL may also audit the Client to ensure the accuracy of the information used to issue its invoice, when they are declarative on the part of the Client.

In the event of an anomaly, the parties agree to meet to remedy the observed defect within thirty [30] days.

 

14. INTELLECTUAL PROPERTY

    a. IDL Database

IDL represents and warrants that IDL and/or its affiliates own or have rights to the Database and that the licenses granted to the Client herein shall not infringe any trademark, copyright or other proprietary right of any person not a party to this Agreement.

IDL shall maintain the intellectual property rights over the licensed Database. IDL is the owner and will keep the intellectual property and know-how of the Database and of its methodology. As such, in no event shall the Client be allowed to publicly disclose and/or redistribute the Database or use it to provide services to third parties other than the ones permitted in the Agreement.

The Client shall not try to circumvent or delete any intellectual property rights of IDL and in particular any digital rights or other security technology embedded or contained within the Database.

The Client grants IDL a non-exclusive, worldwide, royalty-free license to use, copy, derive, sublicense, index, and store Data provided by the Client to the extent necessary to perform its obligations or enforce its rights under this Agreement or where required or permitted by law. IDL may use, copy, transmit, sublicense, index, model, and aggregate the Data provided by the Client.

    b. Derived Data

Without prejudice to the rights granted to Authorized users and/or Affiliates and in return of the fees paid by the Client to IDL, for the provision of data or services, IDL grants to the Client a non-exclusive, non sub-licensable and non-transferable right to create and use Derived Data. This right is granted for the whole Term,  and is included in the fees for the provision of data or services by Iceberg Data Lab as defined in the Agreement.

The parties expressly agree that the Client’s right to use the Derived Data is limited to extract and to use the Derived Data in order to provide internal services to the Clients’ client or for the Client’s own needs.

The Client ensure that it is not possible to reverse-engineer or recover the initial IDL data through the Derived data.

 

15. CONFIDENTIALITY

The Database contents are confidential. The Database can only be use for the purpose defined in the Agreement and in compliance with the rights specified in the Agreement.

The Client commits to take all means to preserve the safety and confidentiality of the Database and the data extracted and stored on its own system to ensure they are not damaged or transmitted to other persons.

The Client commits to inform its users that the Database contents are confidential.

IDL shall keep confidential any information provided by the Client in relation to these Terms and Conditions or any relevant Agreement.

 

16. DISSOLUTION AND TERMINATION

    a. Termination

      i. Contracts in tacit reconduction

If the Agreement is tacitely reconducted, the Client should notify IDL in written form its decision to terminate the Agreement at least 2 [Two] months before the anniversary date of the contract. If a termination notice arrives after this notification delay, the contract will be renewed for another year and terminated the following year if the Client maintain its decision.

      ii. Serious breach

In the event of a breach by one of the Parties of its contractual obligations and in the absence of an amicable settlement, the aggrieved Party may, thirty (30) days after formal notice has been served on the defaulting Party, by registered letter with acknowledgement of receipt or by hand delivery against signature, together with an email (to the contacts mentioned in Article 27), expressly mention the chosen sanction:

– To continue the performance of the Contract, provided that such performance is possible and does not entail a manifest disproportion between its cost for the debtor of the obligation and its benefit for the injured party,

– To decide to ensure or have ensured the execution of the obligation itself at the expense of the debtor of the obligation;

– To accept imperfect performance and seek a reduction in the agreed price, provided that the reduction is proportionate to the non-performance concerned,

– To terminate the Contract by operation of law in the event of non-performance of an essential obligation.

The Parties expressly acknowledge that they are aware of this clause and fully accept its effects.

Termination before the term of an Agreement for any reason whatsoever will not give rise to any refund, even partial, of the sums paid under the subscription.

    b. Dissolution

In the event of termination of the contractual relationship, for any reason whatsoever, the Client shall cease immediately any use of the Database and of the Solution.

Rights and obligations which, by their nature, must necessarily be fulfilled or will continue to exist after termination of the Contract, shall remain in full force and effect after such termination (e.g. provisions relating to liability, insurance, subcontracting, confidentiality).

Remote access to the Database, thePlatform and the Solution granted to the Client will be no longer authorized and the Client undertakes not to use it or attempt to use it.

In this respect, the Customer shall destroy within a maximum of one [1] month from the effective date of termination of the Agreement any medium containing the Database, except for the copies of the data that the Customer may be required to retain for legal or regulatory reasons.

The Customer shall ensure that the present clause is respected by the Database’s users.

IDL will retain the information made available by the Client in connection with the Agreement for six (6) months following the date on which the services were performed for the Client.

 

17. FORCE MAJEURE

In the event of a situation of Force Majeure, Iceberg Data Lab and its Client may suspend its obligations while such situation lasts, provided that the other party has been informed in writing of the situation of Force Majeure immediately after its occurrence. Force Majeure will include all those situations which prevent the performance of the Work or the Agreement and for which the relevant party is not to blame, and which are not for that party’s account pursuant to the law, any juristic act or generally accepted standards and which are therefore not attributable to that party.

 

18. PARTIAL INVALIDITY

If a clause in the General Terms and Conditions or any Agreement is declared null and void, it shall be deemed to be unwritten without invalidating the whole contractual arrangement by which the parties will remain bound to each other. Where necessary, the Data Provider and the Client undertake to negotiate in good faith the provisions necessary for the replacement of clauses which may have been subject to cancellation or invalidation for any reason whatsoever.

The fact that a party does not claim the application of any provision of the General Terms and Conditions or of an Agreement or that it will be permitted to temporarily or permanently tolerate its non-performance shall not be interpreted in any way as a waiver by that party to exercise its rights hereunder. The right of a party to tolerate non-performance or imperfect performance of any contractual obligation or, more generally, to tolerate any act, abstention or omission of the other party not in accordance with the contractual provisions shall not confer any right on the party that enjoys such a tolerance.

 

19. ENTIRETY

The Agreement represents the entire agreement between the parties. It shall supersede and replace all prior written or oral documents, agreements or contracts between the parties having the same subject matter. Any modification to a contractual document must be the subject of a written amendment between the Data Provider and the Client.

 

20. TRANSFER

Any offer, Agreement and any rights and obligations will not be transferable, either by the Client or the Data Provider, without the other party’s prior written consent, which consent may not be withheld or delayed on unreasonable grounds. The above will not apply to any transfer by IDL or by the Client to its legal successor(s).

 

21. NON-SOLICITATION

During the term of the Agreement and for one (1) year after the termination of the Agreement, the Client will not,without the prior written consent of IDL, either

directly or indirectly, solicit or attempt to solicit, divert or hire away any person who during the period of six (6) months preceding such termination was employed by IDL and participated to the services within the scope of the Agreement.

 

22. INDEPENDENCE OF THE PARTIES

The parties acknowledge that they act on their own interest as independent parties. An Agreement does not constitute a partnership, franchise or mandate to act on the other parties’ behalf beyond the agreed services mentioned in the Agreement.

No party represents nor can commit on behalf of the other one. Each party is responsible for its actions, commitments, services, products and employees.

 

23. AUTHORIZATIONS

The parties commit to have all legal and regulatory authorizations to execute their  obligations related to an Agreement and the current General Terms & Conditions

The parties to cooperate in good faith to get any relevant new legal and administrative authorizations or update the existing ones.

 

24. MODIFICATION

Any adjustments and modifications to an Agreement will not be legally valid unless they have been laid down in writing and have been signed for approval by both parties.

IDL reserve the rights to modify the General Terms and Conditions at its initiative at any time.

The modified General Terms and Conditions will apply to  any new Agreement upon its signature provided that the modified version has been posted on IDL website and/or on its Platform, and to any existing Agreement upon its renewal date.

It is the responsibility of the Client to read the modified General Terms and Conditions before the signature of an Agreement or the renewal of an existing Agreement.

 

25. INJUCTIVE RELIEF

In the event that any party acts in violation of its

obligations, the other party shall be entitled to seek injunctive relief in any court of competent jurisdiction in order to stop such violation.

 

26. MEDIATION

The parties shall attempt in good faith to resolve any dispute, controversy, claim, or complaint of any nature arising under or in connection with the Agreement through mediation.

 

27. NOTIFICATION

Any notification or delivery of documents by IDL and one of its Clients pursuant to an Agreement shall be made and delivered at the contact address given in the Agreement. The contact persons between the parties are designated in the Agreement.

 

28. LANGUAGE

    a. Contractual documents

The General Terms and Conditions and the Service Contracts shall be drafted in French or English. In the event of translation of these contracts into other languages, the interpretation of the French version will prevail.

    b. Language of work

In their employment relationships, employees of IDL and the Client will communicate in French or English.

 

29. APPLICABLE LAW AND JURISDICTION

All agreement and contract signed between IDL and its clients are subject to French law.

IN THE EVENT OF DISPUTE, THE COMPETENT COURTS OF THE PARIS SHALL HAVE EXPRESS JURISDICTION, NOTWITHSTANDING THE MULTIPLICITY OF DEFENDANTS OR THE INTRODUCTION OF THIRD-PARTIES, EVEN FOR EMERGENCY OR PROTECTIVE MEASURES IN A SUMMARY PROCEDURE OR BY APPLICATION.