Data Subscriber Terms

General Terms and Conditions

These General Terms and Conditions (“General Terms”) govern the Subscription Agreement for OCC Services and are incorporated therein and form an integral part thereof.  Capitalized terms used but not defined in these General Terms have the respective meanings set forth elsewhere in the Agreement.

For purposes of these General Terms, “Data” means the data, messages and other content accessed by or delivered to Subscriber as part of one or more Services to which Subscriber subscribes, provided that references to “Data” in any Supplement shall have the meaning given in such Supplement.

1. Electronic Access; Security
    
   • (a)    The electronic access to OCC information and Data systems that OCC may provide pursuant to the Agreement will consist of access capabilities via (i) the internet as OCC may make available from time to time and (ii) any other method for electronic data retrieval that OCC may make available to Subscriber in its sole discretion (collectively, “Electronic Access”). OCC reserves the right to make additional OCC information and Data systems available through Electronic Access, to terminate or suspend Electronic Access to particular OCC information and Data systems, and to modify the scope and specifications of Electronic Access to OCC information and Data systems, all from time to time and in its sole discretion. If OCC suspends Subscriber’s Electronic Access, Subscriber must adhere to OCC’s reconnection requirements prior to any reconnection of the Electronic Access, which OCC may withhold in its sole discretion.  
      
   • (b)   The right to use Electronic Access granted to Subscriber hereunder is limited to Subscriber and those of its employees and independent contractors that it authorizes to use such access, provided that any use by independent contractors is limited to such use as is necessary to provide services to Subscriber in connection with Subscriber’s exercise of its rights hereunder. Subscriber may not sub-lease, sub-license, sell, transfer, or assign its right to use Electronic Access in any manner, except to the extent approved in writing by OCC in its sole discretion. Subscriber is liable for all actions and inactions of its employees and independent contractors as it relates to the Agreement. Subscriber shall not use the Electronic Access for any purpose other than to obtain the Services from OCC as authorized in the Agreement. 
      
   • (c)    OCC reserves the right to suspend Subscriber’s access to any and all Services at any time, including Electronic Access, if OCC determines in its sole judgment that a security issue, other legal or reputational risk may be present or imminent, or for non-payment. 
      
2. Third-Party Data
   
   Subscriber acknowledges that certain third-party data providers (“Third-Party Providers”) may have rights in the Data forming part of or comprising the Services and agrees to comply with any restriction or condition imposed by Third-Party Providers relating to such Data, as such restrictions or conditions are notified by OCC or such third-party providers. As part of such compliance, Subscriber may be required to enter into a separate agreement with such Third-Party Provider and attest to OCC that such terms are in place. Upon Subscriber’s request, OCC shall provide Subscriber a list of applicable Third-Party Provider restrictions. Subscriber shall, as a condition of receiving the Services, obtain and maintain throughout the term of the Agreement a license or other approved transfer grant from any applicable Third-Party Providers to receive and use the Data hereunder.
    
3. Proprietary Rights
   
   As between OCC and Subscriber, OCC owns and retains all intellectual property and proprietary rights in and to the Services and Data.  No rights or licenses are granted under the Agreement except as expressly set forth herein. Subscriber shall not remove any trademark notice, copyright notice, or any other notice or disclaimer from the Data or Services. 
    
4. Confidentiality
    
   • (a)    Subscriber acknowledges and agrees that the Data and any documentation or other materials received from OCC under the Agreement (“Confidential Information”) are confidential information of OCC. Subscriber shall (i) exercise at least the same degree of care to safeguard the confidentiality of the Confidential Information  that a reasonably prudent business person would exercise to safeguard its own similar confidential property and (ii) not use, or disclose to any person or entity, any Data except as expressly authorized in the Agreement. Such prohibition shall not apply to disclosures made by Subscriber to its employees, auditors or independent contractors, provided that such disclosures are necessary to Subscriber's authorized use of the Data, and provided further that Subscriber shall ensure that the Data is not disclosed by any of the foregoing persons or entities to any third party and not used by any of the foregoing persons or entities other than for Subscriber’s authorized use of the Data or as otherwise expressly permitted in the Agreement. Subscriber agrees to advise each recipient of the confidential nature of the Data and to obligate each recipient to comply with the use and disclosure restrictions hereunder.
      
   • (b)    The prohibitions of Section 4(a) shall not (i) prohibit Subscriber from furnishing Data to any governmental, regulatory or self-regulatory authority having jurisdiction over Subscriber if Subscriber is required by subpoena, or any other order of court, law or regulation to so furnish copies of Data, provided that Subscriber shall, to the extent permitted by law, provide OCC with prompt advance written notice and cooperate with OCC to seek  an appropriate protective order or (ii) apply to information that (x) becomes generally available to the public other than as a result of disclosure of such information in violation of the Agreement or (y) becomes available to Subscriber on a non-confidential basis from a third party.  
      
   • (c)    With the exception of any copies required to be kept pursuant to applicable law,  upon the termination of the Agreement, Subscriber shall (i) immediately delete all Data (but not the authorized results of calculations made with the Data) from all computers and computer storage devices and media on which Subscriber has placed or permitted others to place the Data; and, (ii) upon OCC’s request, provide OCC with a written certification signed by an authorized person that, to the best of Subscriber’s knowledge, it has complied with all of its obligations under this Section.  The foregoing shall not obligate Subscriber to delete copies of Data made and stored in the ordinary course on backup systems, provided that Subscriber may not use, and shall continue to protect as confidential, such stored Data until it is deleted in the ordinary course.  
      
5. Disclaimer   
   
   SUBSCRIBER UNDERSTANDS AND AGREES THAT SUBSCRIBER’S USE OF THE SERVICES AND DATA IS AT SUBSCRIBER’S SOLE RISK, AND THAT THE SERVICES AND DATA ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE.   OCC, ITS AFFILIATES, ITS THIRD-PARTY PROVIDERS AND ITS AND THEIR RESPECTIVE MARKET DATA PROVIDERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL LIABILITY ARISING FROM  USE OF THE SERVICES AND DATA  (INCLUDING ANY RESULTS ATTAINED FROM THE USE THEREOF) AND EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER  STATUTORY, EXPRESS,  IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE DATA OR SERVICES, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, IN EACH CASE AS TO THE SERVICES AND DATA OR OTHERWISE IN CONNECTION WITH THE AGREEMENT.  WITHOUT LIMITING THE FOREGOING, OCC, ITS AFFILIATES, ITS THIRD-PARTY PROVIDERS AND ITS AND THEIR RESPECTIVE MARKET DATA PROVIDERS AND LICENSORS DO NOT GUARANTEE OR MAKE ANY REPRESENTATIONS OR WARRANTIES OR ASSUME ANY LIABILITY REGARDING THE USE OR THE RESULTS OF THE USE OF ANY SERVICES, INCLUDING WITHOUT LIMITATION (i) THE USE OR THE RESULTS OF THE USE OF ELECTRONIC ACCESS; (ii) ANY DELAY OR LOSS OF USE OF THE ELECTRONIC ACCESS OR SERVICES; (iii) EFFECTS ON OR DAMAGE TO SOFTWARE OR HARDWARE IN CONNECTION WITH ANY USE OF ELECTRONIC ACCESS;  (iv) OMISSIONS OR INACCURACIES IN THE SERVICES OR DATA; OR (v) DELAYS OR INTERRUPTIONS IN PROVIDING THE SERVICES.  DATA PROVIDED UNDER THE AGREEMENT DOES NOT REFLECT THE OPINIONS OF OCC, ITS AFFILIATES, ITS THIRD-PARTY PROVIDERS AND ITS AND THEIR RESPECTIVE MARKET DATA PROVIDERS AND LICENSORS THAT MAY PROVIDE DATA TO OCC.  
    
6. Limitation of Liability
   
   OCC, ITS AFFILIATES, ITS THIRD-PARTY PROVIDERS AND ITS AND THEIR RESPECTIVE MARKET DATA PROVIDERS, LICENSORS, DIRECTORS, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED RELATED IN ANY WAY TO THE USE OF SERVICES OR DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OCC, ITS AFFILIATES, ITS THIRD-PARTY PROVIDERS AND ITS AND THEIR RESPECTIVE MARKET DATA PROVIDERS, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER LOSSES, FROM ANY CAUSE WHATSOEVER RELATING TO THE AGREEMENT OR THE USE OR INABILITY TO USE SERVICES OR DATA, IN EACH CASE WHETHER OR NOT OCC HAS RECEIVED NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
    
7. Indemnification
    
   Subscriber shall indemnify, hold harmless and, at OCC’s election, defend, OCC, its affiliates, its Third-Party Providers and its and their respective directors, officers, employees, and agents (each, an “Indemnified Party”) from and against any and all liabilities, claims, losses, damages (consequential or otherwise) and expenses, including attorneys’ fees and costs, arising from any claim asserted by a third party against an Indemnified Party, arising directly or indirectly from Subscriber’s use of Services or Data, except to the extent such claims, liabilities or expenses are the result of an Indemnified Party’s gross negligence or willful misconduct..


8. Audit Rights
   
   Subscriber agrees that OCC may, during normal business hours and upon reasonable notice to the Subscriber Contact, audit Subscriber’s records to verify that its use of the Data is in compliance with the terms of the Agreement. Without limiting the foregoing or any restrictions in the Agreement relating to distribution of the Data, upon request from OCC from time to time, Subscriber shall provide a list of all third parties, including independent contractors, to which Subscriber distributes any Data or data derived from the Data.
    
9. Security.  
    
   • (a)    Systems, Policies and Procedures.  Subscriber shall at all times maintain security systems, policies and procedures in accordance with then-current industry standards to prevent any unauthorized access to, misuse of, or disruption to the Services or the Data, including: (i) establishing and maintaining all reasonable systems, policies and procedures to allow for the proper delivery of Data in accordance with this Agreement and any Supplements hereto and to ensure that the Services are directly accessible only by Subscriber’s authorized users; (ii) establishing and maintaining all reasonable policies and procedures necessary to protect each of the Services, OCC’s systems and Subscriber’s systems from unauthorized third-party access, misuse, damage or disruption; (iii) using secure servers and protective firewalls; and (iv) using antivirus software protection to prevent the Services or Data provided hereunder from being infected with any virus, worm or disabling devices.
      
   • (b)    Notice.  Subscriber shall immediately notify OCC in writing in the event of any unauthorized access to or misuse of the Services, the Data, OCC’s systems or Subscriber’s systems of which Subscriber is aware, setting forth in reasonable detail the nature of the unauthorized access or misuse and the measures taken by Subscriber to cure such activity.
      
10. General
     
    • (a)    Interpretation. Any reference to the “Agreement,” the “Subscription Agreement for OCC Services” or use of the terms “herein” or “hereunder,” shall be deemed to be a reference to the Agreement, including the General Terms and Conditions. The term “including” or “include,” as used herein, shall mean “including, but not limited to.” The section headings used herein are intended for reference purposes only and shall not affect the interpretation or construction of any provision of the Agreement.
       
    • (b)    Severability. If any portion of the Agreement is held invalid, illegal or unenforceable, the parties agree that such invalidity, illegality or unenforceability shall not affect the remaining portions of the Agreement, and the parties further agree to substitute for the invalid, illegal or unenforceable provision, a valid, legal and enforceable provision that most closely approximates the economic effect and intent of the invalid, illegal or unenforceable provision.
       
    • (c)    Waiver. Failure or delay on the part of either party to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default, a waiver of the provision itself, or of the same type of default on a future occasion.
       
    • (d)    Survival. The provisions of Sections 2, 3, 4, 5, 6, 7, 8 and 10 of the General Terms and the provisions regarding the permitted use and distribution of Data in each Supplement, as well as any other provision of the Agreement that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive any expiration or termination of the Agreement.
       
    • (e)    Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, without regard to principles of conflicts of law. Any dispute in connection with the Agreement shall be adjudicated in the appropriate courts located in Chicago, Illinois or, in the sole discretion of OCC, New York, New York, and Subscriber hereby consents to the exclusive jurisdiction of such courts. Subscriber irrevocably waives any objection on the grounds of venue, forum non-convenient or any similar grounds and irrevocably consents to the service of process by mail or in any other manner permitted by applicable law.
       
    • (f)    Amendment. The Agreement may be amended or modified only by mutual written agreement of the parties; provided, Subscriber acknowledges that OCC may unilaterally modify: the Fee Schedule and the General Terms (including any Supplements) in accordance with the notice requirements set forth in the Agreement.
       
    • (g)    Force Majeure. Notwithstanding any other provisions of the Agreement, neither party shall be liable for any failure to perform or delay in performing its obligations hereunder if such failure or delay is caused by fire, strike, power failure, civil commotion, war, terrorist acts, acts of nature, equipment or system failure, transmission delays or any other condition or event beyond the reasonable control of the party whose performance is prevented or delayed. Without limiting the foregoing, OCC shall not be liable for any delay or failure to perform resulting from a security breach or other unauthorized network access. Each party agrees to notify the other promptly upon learning that any such condition or event has occurred, and each party shall cooperate with the other in taking reasonable steps to mitigate the effects of any inability to perform or any delay in performing.
       
    • (h)    Assignment. The Agreement may not be assigned, in whole or in part, by Subscriber without the prior written consent of OCC.
       
    • (i)    Authority. Subscriber and OCC each represent that: (i) it has all requisite power and authority to execute and deliver the Agreement; (ii) the Agreement constitutes a legal, valid, and binding obligation of such party enforceable against it, and (iii) the individual signing the Agreement on its behalf has been duly authorized to execute and deliver the Agreement. Subscriber acknowledges that Subscriber has read the terms of the Agreement and that Subscriber understands them and agrees to be bound by them.
       

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Supplement for Data Distribution Service

The terms of this Supplement for Data Distribution Service (this “DDS Supplement”) will apply to OCC’s data distribution service (“DDS”) only.

This DDS Supplement supplements the terms of the Agreement for OCC Services between Subscriber and OCC and the General Terms and Conditions incorporated by reference therein (the “Agreement”) and forms an integral part of the Agreement. Capitalized terms used but not defined herein have the same meanings set forth in the Agreement.

OCC and Subscriber hereby agree that Subscriber may subscribe to, and OCC will provide, the DDS, subject to the terms and conditions of this DDS Supplement and the other terms of the Agreement.

1. Definitions
   
   For purposes of this DDS Supplement: 
    
   • (1)    “Data” means the data, files, messages, and other content accessed by or delivered to Subscriber as part of the DDS, including Prices Data and Series Data (as each term is defined below).  
      
   • (2)    “Permitted Use” means (i) risk management (including calculation of daily or intra-day price movements (initial and variation margin)); (ii) calculation of future risk exposures; (iii) reporting, including provision of information and preparation of files and reports; (iv) portfolio valuation; (v) valuing and administering (e.g., exercise, hold or sell; value and transfer collateral, etc.) equity derivatives and securities lending transactions; and (vi) compliance with regulatory obligations, including, but not limited to, compliance with regulatory audits and exams.
      
2.     Data Distribution Service; Authorization
    
   • (a)   OCC’s DDS permits Subscriber: (i) to select various options in order to access and receive Data via the Electronic Access; and (ii) in the case of the Series subscription, to select whether access or receipt will be “real time,” in “batches,” or both. (For convenience, the term “delivery” is hereinafter used to describe the process of either “accessing” or “receiving” Data.)
      
   • (b)   Subscriber shall cause its designated representative(s) to contact OCC’s Member Services Department to make its selections in order to receive DDS or to modify previously made selections. OCC reserves the right in its sole discretion to add, delete, or modify the form or content of Data, applicable delivery methods, and frequency of delivery upon such notice to Subscriber via email to the Subscriber Contact that OCC deems to be reasonable and practicable under the circumstances, and Subscriber agrees to reasonably cooperate with OCC with respect to implementing such changes. Modifications made to Subscriber’s Data and delivery selections shall be effective as of the date specified by OCC.  
      
3. Prices Authorization
    
   • (a)   If Subscriber has elected a to receive a Prices subscription, subject to the terms and conditions of the Agreement, including Section 2 of the General Terms and Conditions (Third-Party Data), OCC hereby authorizes Subscriber to use and copy the Data delivered as part of the Prices subscription (“Prices Data”) solely in the United States, Canada, the European Union, and the United Kingdom (the “Territorial Scope”) and solely in connection with the Permitted Use. Subscriber may only use the Prices Data for its internal business purposes and not for any third-party commercial purpose, including the creation of a valuation service for third parties. Any use of the Prices Data outside of the Territorial Scope must be approved in writing by OCC, subject to its sole discretion.
      
   • (b)    Subscriber shall not redistribute or provide such Data or any copy thereof received in connection with the Prices Data to any third party unless and solely to the extent required by applicable law. Subscriber shall reproduce on any and all copies of such Data any and all proprietary notices (including but not limited to all copyright and trademark notices) and all disclaimers.
      
   • (c)    Any data derived by Subscriber from the Prices Data (“Derived Data”) may only be used by Subscriber in the Territorial Scope for Subscriber’s internal business purposes, subject to any additional limitations on such creation or use of Derived Data required by any Third-Party Provider. Subscriber may not distribute the Derived Data to any third party.  
      
4. Series Authorization
   
   If Subscriber has elected to receive a Series subscription, subject to the terms and conditions of the Agreement, including Section 2 of the General Terms and Conditions (Third-Party Data), OCC hereby authorizes Subscriber to use and copy the Data delivered as part of the Series subscription (“Series Data”), subject to the following:  
    
   • (1)    If Subscriber has a “distribution” Series subscription, Subscriber may (a) use and copy the Series Data for any lawful purpose and (b) sublicense and distribute the Series Data to any third party; provided, Subscriber (i) must reproduce on any and all copies of such distributed Series Data any and all proprietary notices (including but not limited to all copyright and trademark notices) and disclaimers included in the Series Data; and (ii) may not use, sell or distribute the Series Data for any commercial purpose without OCC's prior written consent, which consent may be subsequently revoked, modified, or conditioned upon reasonable prior notice from OCC.
      
   • (2)    If Subscriber has a “non-distribution” Series subscription, Subscriber may use and copy the Series Data for its internal business purposes only (provided such purpose is lawful). Subscriber shall not redistribute or provide such Series Data or any copy thereof to any third party unless and solely to the extent required by applicable law or expressly permitted in this Agreement. Subscriber shall reproduce on any and all copies of such Data any and all proprietary notices (including but not limited to all copyright and trademark notices) and all disclaimers of OCC included in the Series Data. 
      
5. Certain Acknowledgments and Agreements
    
   • (a)    Subscriber acknowledges and agrees that each method for delivering Data as a part of DDS is a secure and commercially reasonable means for delivering such Data. Subscriber is responsible for providing and maintaining its own computer and communications equipment and services needed to use DDS, and OCC shall have no responsibility with respect thereto.  
      
   • (b)    If Subscriber selects delivery of Data on a “batch basis,” Subscriber acknowledges and agrees that such Data is final when delivered on each day that OCC effects Data delivery as a part of OCC’s DDS. If Subscriber selects delivery of Data on a “real time basis,” (x) Subscriber acknowledges and agrees that such Data shall be deemed provisional and informational only and shall be subject to revision until OCC has transmitted an “end of day” message indicating that OCC will not deliver any further DDS Data to Subscriber for a particular activity date and (y) OCC may elect to deliver Data to Subscriber on a batch basis in the event: (i) OCC experiences problems with communication channels, computer equipment, or applications; (ii) OCC experiences problems that affect DDS; or (iii) under such other circumstances as OCC deems appropriate. OCC will endeavor to notify Subscriber via email to the Subscriber Contact about the change in delivery methods as reasonably practicable under the circumstances and will reinstitute real-time delivery when OCC deems it appropriate to do so.
      
   • (c)    If Subscriber believes there is an error or omission in the Data, Subscriber shall promptly notify OCC and shall effect such adjustments as requested by OCC to correct the error or omission.
      
   • (d)    Upon request by OCC, Subscriber shall attest to, and provide supporting documentation for, the use cases for Subscriber’s use of the Prices Data or Series Data, as applicable.  Subscriber shall notify OCC if it subsequently modifies such use cases or intends to use the Prices Data or Series Data for another purpose that was not previously disclosed to OCC.
      

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Supplement for Theoretical Profit and Loss Values

This Supplement for Theoretical Profit and Loss Values (this “TPLV Supplement”) supplements the terms of the Subscription Agreement between Subscriber and OCC (the “Agreement”) and forms an integral part of the Agreement.  Capitalized terms used but not defined herein have the same meanings set forth in the Agreement.

OCC and Subscriber hereby agree that Subscriber may receive, and OCC will make available, the following theoretical profit and loss values service (“TPLV Service”), subject to the terms and conditions of this Supplement and the other terms of the Agreement.

1. Definitions
   
   For purposes of this TPLV Supplement: 
   
   “Data” means the data, messages and other content accessed by or delivered to Subscriber as part of the TPLV Service.
   
   “Permitted Use” means:  
    
   • (1)    to calculate (i) risk-based haircuts for in respect of its own proprietary accounts and the positions in accounts of any other broker-dealer (other than any clearing member of OCC) carried by Subscriber, the haircuts on which positions are from time to time taken into account by Subscriber in determining Subscriber’s own net capital requirement under SEC Rule 15c3-1 and capital requirements of applicable self-regulatory organizations; and (ii) portfolio based margin requirements under the rules of a national securities association or national securities exchange under the Securities Exchange Act of 1934 in respect of applicable accounts of eligible customers of Subscriber. To the extent that such calculations are made in respect of the accounts of such other broker-dealers, Subscriber agrees to identify all such broker-dealers to OCC upon request from OCC and in such form as prescribed by OCC;
      
   • (2)    to calculate (i) risk-based haircuts in respect of the positions in accounts of any other broker-dealer (other than a clearing member of OCC) whose positions are carried by Subscriber; and (ii) portfolio-based margin requirements under the rules of a national securities association or national securities exchange under the Securities Exchange Act of 1934 in respect of applicable accounts of eligible customers of such other broker dealers; and
      
   • (3)    subject to OCC’s prior written consent, which may be withheld in its sole discretion, to make calculations (including risk-based haircuts and portfolio margin requirements) for the purpose of providing risk management and margin calculation services to Subscriber’s customers for commercial purposes.
      
2. Theoretical Profit and Loss Values
   
   OCC makes certain Data consisting of theoretical profit and loss values for exchange-traded securities, options, futures and futures options and certain over-the-counter options available in a format designed for the Permitted Use. 
    
3. Authorization to Use Data
   
   Subject to the terms and conditions of the Agreement, including Section 2 of the General Terms and Conditions (Third-Party Data), OCC hereby authorizes Subscriber to use the Data solely in the United States, Canada, the European Union, and the United Kingdom (the “Territorial Scope”) for the Permitted Use. Any use of the Data outside of the Territorial Scope or pursuant to clause (3) under the definition of “Permitted Use” must be approved in writing by OCC, subject to OCC’s sole discretion, prior to such use. OCC may subsequently terminate any authorization provided under the previous sentence at any time in its sole discretion. Subscriber is not granted any authority to use the Data except for the Permitted Use without the prior written consent of OCC, and Subscriber may not, without the prior written consent of OCC, assign or transfer its authorization to use the Data or retransmit, distribute or make available any of the Data to any third party, including Subscriber’s customers. Subscriber may not create or distribute data derived from the Data except as expressly provided in this Supplement.  
    
4. Theoreticals
   
   Without limiting the disclaimers and limitations of liability in the General Terms or elsewhere in the Agreement, in any respect, Subscriber acknowledges that the theoretical values comprising the Data may not conform or correlate with actual options prices and that the Data is intended for use in calculating risk-based haircuts and/or portfolio-based margin requirements and is intended to be used only by persons or entities who have a sophisticated understanding of the theoretical valuation of securities and commodity positions.
    
5. Availability of Data
   
   Without limiting any other provision of the Agreement in any respect, OCC agrees to use reasonable efforts, but in no way guarantees, to make daily updates to Data available to Subscriber on a nightly basis, on days in which the United States securities markets are open for business.