Upozornění: Text přílohy byl získán strojově a nemusí přesně odpovídat originálu. Zejména u strojově nečitelných smluv, kde jsme použili OCR. originál smlouvy stáhnete odsud
Fifth Amendment Agreement to the Master Services Agreement XBID Solution
Confidential
Fifth Amendment Agreement to the
Master Services Agreement
XBID Solution
This agreement is made by and between the following Parties:
(1) BSP Energy Exchange LLC, a company organised and existing under the laws of Republic
of Slovenia, having its registered office at Dunajska cesta 156, 1000 Ljubljana, Slovenia,
and registered with the district court of Ljubljana under the number 3327124000 and VAT
n° SI37748661, hereinafter referred to as “BSP”,
and
(2) Croatian Power Exchange Ltd., a company organised and existing under the laws of
Republic of Croatia, having its registered office at Ulica grada Vukovara 284, 10000
Zagreb, Croatia, and registered with the commercial register at the commercial court of
Zagreb under the number 080914267 and VAT n° HR14645347149, hereinafter referred
to as “CROPEX”,
and
(3) European Market Coupling Operator AS (previously named Nord Pool AS), a company
organised and existing under the laws of Norway, having its registered office at
Lilleakerveien 2 A, 0283 Oslo, Norway, and registered with the Register of Business
Enterprises in Norway under the number 984 058 098 and VAT n° NO 984 058 098 MVA,
hereinafter referred to as "EMCO",
and
(4) EPEX Spot SE, a European Company (Societas Europaea) organised and existing under
the laws of France, having its registered office at 5 Boulevard Montmartre, 75002 Paris,
France, and registered with Commercial Register in Paris under the number 508 010 501
and VAT n° FR 10508010501, hereinafter referred to as "EPEX Spot", acting also as legal
successor of APX Power BV, APX Commodities Ltd. and EPEX Spot Belgium SA as a
result of a merger,
and
(5) Gestore dei Mercati Energetici S.P.A., a company organised and existing under the laws
of Italy, having its registered office at Viale Maresciallo Pilsudski 122/124, Rome, Italy,
and registered in the Companies Register of Rome under the number RM 953866, under
Italian tax code and VAT n° IT 06208031002, hereinafter referred to as “GME”,
and
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(6) HUPX Hungarian Power Exchange Company Limited by Shares, a company organised
and existing under the laws of Hungary, having its registered office at 1134 Budapest,
Dévai u. 26-28, Hungary, and registered with the commercial register of the Budapest
metropolitan court under the number 01-10-045666 and VAT n° HU13967808, hereinafter
referred to as “HUPX Ltd.”,
and
(7) Independent Bulgarian Energy Exchange, a company organised and existing under the
laws of Bulgaria, having its registered office at 19 Kniaz Alexander Dondukov blvd., Sofia,
1000, Bulgaria, and registered with the commercial register at Bulgarian registry agency
under the number 202880940 and VAT n° BG202880940, hereinafter referred to as
“IBEX”,
and
(8) OMI, Polo Español, S.A. (OMIE), a company organised and existing under the laws of
Spain, having its registered office at Alfonso XI n° 6, 4a planta, 28014 Madrid, Spain, and
registered with Commercial Register in Madrid under section 8, Hoja: M-506799 and VAT
n° ESA 86025558, hereinafter referred to as "OMIE",
and
(9) Operatorul Pieţei de Energie Electrică şi de Gaze Naturale “OPCOM” S.A., a company
organised and existing under the laws of Romania, having its registered office at 16-18
Bd. Hristo Botev, 3rd District, Bucharest, PC.030236, Romania, and registered with
Bucharest Trade Registry under the number J40/7542/2000 and VAT n° RO13278352,
hereinafter referred to as “OPCOM”,
and
(10) OTE, a.s., a company organised and existing under the laws of Czech Republic, having
its registered office at Sokolovská 192/79, 186 00 Prague, Czech Republic, and registered
with the commercial register in municipal court of Prague, Section B 7260 under the
number 26463318 and VAT n° CZ26463318, hereinafter referred to as “OTE”, OTE’s
contract number: 44/18,
and
(11) Towarowa Giełda Energii S.A., a company organised and existing under the laws of the
Republic of Poland, having its registered office at Książęca 4, 00-498 Warszawa, Poland,
and registered in the commercial register at National Court Register under the number
0000030144 and VAT n° PL5272266714, hereinafter referred to as “TGE”,
each of the parties (1) – (11) may hereinafter individually be referred to as “NEMO” and collectively
as “NEMOs”,
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Parties (3), (4), (5) and (8) also individually being referred to as “Initial NEMO” and collectively
as “Initial NEMOs”;
and
(12) Deutsche Börse AG, an Aktiengesellschaft (AG) organized and existing under the laws of
Germany, having its registered office at Mergenthalerallee 61 65760 Eschborn/Germany
and registered in the Commercial Register Handelsregister HRB under Nr. 32232 and VAT
DE 114151950, hereinafter referred to as “DBAG”.
Each NEMO and DBAG may hereinafter individually be referred to as “Party” and the NEMOs
and DBAG may hereinafter collectively be referred to as “Parties”.
WHEREAS
A. The Initial NEMOs and DBAG have entered into a “Master Services Agreement XBID
Solution”, which entered into force on 1 March 2015, also called the “XBID-MSA”;
B. The Initial NEMOs and DBAG have entered into a “First Amendment Agreement to the
Master Services Agreement XBID Solution”, which entered into force on 21 December
2015, also called the “First XBID-MSA Amendment”;
C. The Initial NEMOs and DBAG have entered into a “Second Amendment Agreement to
the Master Services Agreement XBID Solution”, which entered into force on 1 July 2016,
also called the “Second XBID-MSA Amendment”;
D. The Initial NEMOs and DBAG have entered into a “Third Amendment Agreement to the
Master Services Agreement XBID Solution”, which entered into force on 1 January 2017,
also called the “Third XBID-MSA Amendment”;
E. The Initial NEMOs, TGE and DBAG have entered into a “Fourth Amendment Agreement
to the Master Services Agreement XBID Solution”, which entered into force on 30
October 2018, also called the “Fourth XBID-MSA Amendment”;
F. TGE acceded to the Agreement on 12 December 2018 and received services from DBAG
as of 1 September 2018;
G. BSP, CROPEX, HUPX, IBEX, OPCOM and OTE acceded to the Agreement on 1 July
2019 and received services from DBAG as of that date; and
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H. The NEMOs and DBAG wish to make some amendments to already agreed wording as
a result of further arrangements and to reflect the accession of the aforementioned
parties.
NOW THEREFORE and in consideration of the foregoing premises and the mutual covenants
set forth herein, the Parties agree as follows:
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1. Definitions
1.1. Capitalized terms used in this Fifth Amendment Agreement to the XBID-MSA (the “Fifth
XBID-MSA Amendment”) shall have the meaning attributed to them in Exhibit 1 (Key
Terms & Glossary) to the XBID-MSA unless otherwise specified in this Fifth XBID-MSA
Amendment.
2. Amendments to the XBID-MSA
2.1. The Parties agree to:
1)
2) 7
n
3) replace the current Exhibit 1 (Key Terms & Glossary) to the XBID-MSA by the
adapted Exhibit 1 (Key Terms & Glossary) as attached as Annex 1 to the Fifth
XBID-MSA Amendment;
4) replace the current Exhibit 3 (DSA License) to the XBID-MSA by the adapted
Exhibit 3 (DSA License) as attached as Annex 2 to the Fifth XBID-MSA
Amendment, it being understood that only the following changes were made:
5) replace the current Attachment 4E (AIP100 – Software Architecture) to the XBID-
MSA by the adapted Attachment 4E (AIP100 – Software Architecture) as attached
as Annex 3 to the Fifth XBID-MSA Amendment;
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6) replace the current Appendix 5A2.B (AIP120 - Failover) to the XBID-MSA by the
adapted Appendix 5A2.B (AIP120 - Failover) as attached as Annex 4 to the Fifth
XBID-MSA Amendment;
7) replace the current Attachment 5B (Service Level Agreement – Hosting) to the
XBID-MSA by the adapted Attachment 5B (Service Level Agreement – Hosting)
as attached as Annex 5 to the Fifth XBID-MSA Amendment;
8) replace the current Attachment 5D (ICT Governance Structure) to the XBID-MSA
by the adapted Attachment 5D (ICT Governance Structure) as attached as Annex
6 to the Fifth XBID-MSA Amendment;
9) replace the current Attachment 5E (AIP110 - Technical Architecture Topology
Diagram - Hosting) to the XBID-MSA by the adapted Attachment 5E (AIP110 -
Technical Architecture Topology Diagram - Hosting) as attached as Annex 7 to the
Fifth XBID-MSA Amendment;
10) replace the current Exhibit 9 (Remuneration & Price List) to the XBID-MSA by the
adapted Exhibit 9 (Remuneration & Price List) as attached as Annex 8 to the Fifth
XBID-MSA Amendment;
11) replace the current Exhibit 12 (Form Accession Agreement) to the XBID-MSA by
the adapted Exhibit 12 (Form Accession Agreement) as attached as Annex 9 to
the Fifth XBID-MSA Amendment;
12) replace the current Exhibit 15 (Contact Details) to the XBID-MSA by the adapted
Exhibit 15 (Contact Details) as attached as Annex 10 to the Fifth XBID-MSA
Amendment;
13) replace the current Exhibit 16 (Key Personnel) to the XBID-MSA by the adapted
Exhibit 16 (Key Personnel) as attached as Annex 11 to the Fifth XBID-MSA
Amendment;
14) replace the current Exhibit 20 (Boundaries of Service) to the XBID-MSA by the
adapted Exhibit 20 (Boundaries of Service) as attached as Annex 12 to the Fifth
XBID-MSA Amendment;
15) replace the current Appendix 20A (List of SLB KPIs) to the XBID-MSA by the
adapted Appendix 20A (List of SLB KPIs) as attached as Annex 13 to the Fifth
XBID-MSA Amendment;
16) replace the current Exhibit 21 (Subcontractors) to the XBID-MSA by the adapted
Exhibit 21 (Subcontractors) as attached as Annex 14 to the Fifth XBID-MSA
Amendment;
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17) replace the current Attachment 3A (Escrow Agreement) to the XBID-MSA by the
adapted Attachment 3A (Escrow Agreement) as attached as Annex 15 to the Fifth
XBID-MSA Amendment, this new template is to be used for future changes to the
Attachment 3A (Escrow Agreement) (no need to re-sign this document with
Deposix as a result of this Amendment Agreement); and
18) replace the current Attachment 4B (SLA – Maintenance) to the XBID-MSA by the
adapted Attachment 4B (SLA – Maintenance) as attached as Annex 16 to the
Fifth XBID-MSA Amendment.
3. Miscellaneous
3.1. No provision of the Fifth XBID-MSA Amendment, shall be interpreted adversely against
a Party solely because that Party was responsible for drafting that particular provision.
3.2. The Fifth XBID-MSA Amendment, including this clause, may not be amended, altered or
modified except by written instrument executed by the Parties.
3.3. The Fifth XBID-MSA Amendment constitutes the entire agreement of the Parties hereto
with respect to the subject matter hereof and only amends, replaces, supplements or
deletes those provisions of the XBID-MSA which have been described above, it being
understood that all of the others provisions of the XBID-MSA shall remain unchanged
and into force.
3.4. In case any provision in or obligation under the Fifth XBID-MSA Amendment shall be
held invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions or obligations shall not in any way be affected. Invalid, illegal or
unenforceable provisions shall be replaced by valid, legal and enforceable provisions as
agreed by the Parties so as to reflect the original intent of the Parties as close as possible.
3.5. In the event of any ambiguity or inconsistency between the main text of the Fifth XBID-
MSA Amendment and its Annexes, the main text of the Fifth XBID-MSA Amendment
shall prevail over the Annexes.
3.6. This Fifth XBID-MSA Amendment enters into force upon signing by all Parties with
retroactive effect as of XBID R2.0 delivery into Production, 30 October 2019 and shall
remain into force for the duration of the XBID-MSA, unless Parties expressly agree in
writing to have this Fifth XBID-MSA Amendment replaced by another written agreement.
3.7.
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3.8. For the avoidance of doubt, this Fifth XBID-MSA Amendment is governed by and shall
be construed in accordance with Belgian law. In case of dispute between the Parties,
arising out of or in relation with this Fifth XBID-MSA Amendment, the dispute settlement
procedure provided in Section 17 of the XBID-MSA shall apply.
3.9. The Parties are aware of the fact that OTE, irrespective of the law otherwise applicable
to the Accession Agreement, has a national legal obligation within the meaning of
Section 2 (1) of the Czech Act No. 340/2015 Coll. on special conditions for the
effectiveness of certain contracts, the contract publishing and on the register of contracts,
as amended (hereinafter the “Act on Register of Contracts”) according to which this
Fifth XBID-MSA Amendment shall only come into effect in relation to the rights and
obligations of OTE subject to the prior publication of this Fifth XBID-MSA Amendment in
the national contract registry of the Czech Republic. All Parties hereby acknowledge this
publication obligation for OTE and accept that the validity and effectiveness of this Fifth
XBID-MSA Amendment with respect to OTE is subject to fulfilment of the
abovementioned publication obligation whereas the validity and effectiveness of this Fifth
XBID-MSA Amendment between the other Parties remains unaffected by this condition.
OTE commits to comply with this publication obligation without delay, but within thirty
(30) days from the date hereof at the latest, and to inform all Parties, without any delay,
of the fulfillment thereof. In case that OTE does not comply with this publication
obligation, any other Party is entitled to ensure the publication of this Fifth XBID-MSA
Amendment in accordance with Section 5 (2) of the Act on Register of Contracts.
No Confidential Information shall be disclosed during the course of complying with such
publication obligation, including by redacting all such Confidential Information from any
materials or documents.
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Annexes:
Annex 1: amended Exhibit 1 (Key Terms & Glossary);
Annex 2: amended Exhibit 3 (DSA License);
Annex 3: amended Attachment 4E (AIP100 – Software Architecture);
Annex 4: amended Appendix 5A2.B (AIP120 - Failover);
Annex 5: amended Attachment 5B (Service Level Agreement – Hosting);
Annex 6: amended Attachment 5D (ICT Governance Structure);
Annex 7: amended Attachment 5E (AIP110 - Technical Architecture Topology Diagram -
Hosting);
Annex 8: amended Exhibit 9 (Remuneration & Price List);
Annex 9: amended Exhibit 12 (Form Accession Agreement);
Annex 10: amended Exhibit 15 (Contact Details);
Annex 11: amended Exhibit 16 (Key Personnel);
Annex 12: amended Exhibit 20 (Boundaries of Service);
Annex 13: amended Appendix 20A (List of SLB KPIs);
Annex 14: amended Exhibit 21 (Subcontractors);
Annex 15: amended Attachment 3A (Escrow Agreement);
Annex 16: amended Attachment 4B (SLA – Maintenance).
This Fifth XBID-MSA has been made in twelve (12) originals, one for each of the
undersigned Parties.
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SIGNATORY PAGE – BSP ENERGY EXCHANGE LLC
_____________________
for and on behalf of
BSP ENERGY EXCHANGE LLC
Name:
Title:
Date:
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SIGNATORY PAGE – CROATIAN POWER EXCHANGE Ltd.
_____________________
for and on behalf of
CROATIAN POWER EXCHANGE Ltd.
Name:
Title:
Date:
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SIGNATORY PAGE – EMCO
_____________________
for and on behalf of
European Market Coupling Operator AS
Name:
Title:
Date:
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SIGNATORY PAGE – EPEX SPOT
_____________________
for and on behalf of
EPEX SPOT SE
Name:
Title:
Date:
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SIGNATORY PAGE – GME
_____________________
for and on behalf of
Gestore dei Mercati Energetici S.P.A.
Name:
Title:
Date:
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SIGNATORY PAGE – HUPX HUNGARIAN POWER EXCHANGE COMPANY LIMITED BY SHARES
_____________________
for and on behalf of
HUPX HUNGARIAN POWER EXCHANGE COMPANY LIMITED BY SHARES
Name:
Title:
Date:
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SIGNATORY PAGE – INDEPENDENT BULGARIAN ENERGY EXCHANGE (IBEX)
_____________________
for and on behalf of
INDEPENDENT BULGARIAN ENERGY EXCHANGE (IBEX)
Name:
Title:
Date:
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SIGNATORY PAGE – OMIE
_____________________
for and on behalf of
OMIE Polo Espanol S.A.
Name:
Title:
Date:
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SIGNATORY PAGE – Operatorul Pieţei de Energie Electrică şi de Gaze Naturale “OPCOM” SA
_____________________
for and on behalf of
Operatorul Pieţei de Energie Electricăşi de Gaze Naturale “OPCOM” SA
Name:
Title:
Date:
_____________________
for and on behalf of
Operatorul Pieţei de Energie Electrică şi de Gaze Naturale “OPCOM” SA
Name:
Title:
Date:
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SIGNATORY PAGE – OTE, a.s.
_____________________
for and on behalf of
OTE, a.s.
Name:
Title:
Date:
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SIGNATORY PAGE – TGE
_____________________ _____________________
for and on behalf of for and on behalf of
Towarowa Giełda Energii S.A Towarowa Giełda Energii S.A
Name: Name:
Title: Title:
Date: Date:
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SIGNATORY PAGE – DBAG
_____________________ _____________________
for and on behalf of for and on behalf of
Deutsche Börse AG Deutsche Börse AG
Name: Name:
Title: Title:
Date: Date:
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