Textual Amendments
In the event that funds remain overnight on a [F2T2S DCA] due to a technical malfunction of either the SSP or the T2S Platform, the ECB shall offer to compensate the participants concerned in accordance with the special procedure laid down in Appendix II.
1. In performing their obligations pursuant to these Conditions, the ECB and the [F2T2S DCA holders] shall be bound by a general duty of reasonable care in relation to each other.
2. The ECB shall be liable to its [F2T2S DCA holders] in cases of fraud (including but not limited to wilful misconduct) or gross negligence, for any loss arising out of the operation of TARGET2-ECB. In cases of ordinary negligence, the ECB's liability shall be limited to the [F2T2S DCA holder's] direct loss, i.e. the amount of the transaction in question and/or the loss of interest thereon, excluding any consequential loss.
3. The ECB is not liable for any loss that results from any malfunction or failure in the technical infrastructure (including but not limited to the ECB's computer infrastructure, programmes, data, applications or networks), if such malfunction or failure arises in spite of the ECB having adopted those measures that are reasonably necessary to protect such infrastructure against malfunction or failure, and to resolve the consequences of such malfunction or failure (the latter including but not limited to initiating and completing the business continuity and contingency procedures referred to in Appendix IV).
4. The ECB shall not be liable:
(a) to the extent that the loss is caused by the [F2T2S DCA holder] ; or
(b) if the loss arises out of external events beyond the ECB's reasonable control (force majeure).
[F25. Notwithstanding Sections 675(u), 675(v), 675(x), 675(y), 675(z), 676(a), 676(c) of the German Civil Code (Bürgerliches Gesetzbuch) , paragraphs 1 to 4 shall apply to the extent that the ECB's liability can be excluded.]
6. The ECB and the [F2T2S DCA holders] shall take all reasonable and practicable steps to mitigate any damage or loss referred to in this Article.
7. In performing some or all of its obligations under these Conditions, the ECB may commission third parties in its own name, particularly telecommunications or other network providers or other entities, if this is necessary to meet the ECB's obligations or is standard market practice. The ECB's obligation shall be limited to the due selection and commissioning of any such third parties and the ECB's liability shall be limited accordingly. For the purposes of this paragraph, the SSP-providing NCBs and the 4CBs shall not be considered as third parties.
1. Unless otherwise provided in these Conditions, all payment and payment processing-related messages in relation to the [F2T2S DCAs] , such as confirmations of debits or credits, or statement messages, between the ECB and the [F2T2S DCA holders] shall be made through the T2S network service provider.
2. Electronic or written records of the messages retained by the ECB or by the T2S network service provider shall be accepted as a means of evidence of the payments processed through the ECB. The saved or printed version of the original message of the T2S network service provider shall be accepted as a means of evidence, regardless of the form of the original message.
3. If a [F2T2S DCA holder's] connection to the T2S network service provider fails, the [F2T2S DCA holder] shall use an alternative means of transmission of messages agreed with the ECB. In such cases, the saved or printed version of the message produced by the ECB shall have the same evidential value as the original message, regardless of its form.
4. The ECB shall keep complete records of payment orders submitted and payments received by [F2T2S DCA holders] for a period of 10 years from the time at which such payment orders are submitted and payments are received, provided that such complete records shall cover a minimum of five years for any [F2T2S DCA holder] in TARGET2 that is subject to continuous vigilance pursuant to restrictive measures adopted by the Council of the European Union or Member States, or more if required by specific regulations.
5. The ECB's own books and records (whether kept on paper, microfilm, microfiche, by electronic or magnetic recording, in any other mechanically reproducible form or otherwise) shall be accepted as a means of evidence of any obligations of the [F2T2S DCA holders] and of any facts and events that the parties rely on.]