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CONSULTANCY SERVICE AGREEMENT
amended by Amendment 1 concluded on 12.11.2014, by Amendment 2 concluded on
11.5.2015, by Amendment 3 concluded on 29.8.2015, by Amendment 4 concluded on
19.5.2016, by Amendment 5 concluded on 17.4.2017, by Amendment 6 concluded on
30.10.2017, by Amendment 7 concluded on 2.7.2018 by Amendment 8 concluded on
1.1. 2019
This Consultancy Service Agreement, as amended (hereinafter, the "Agreement") is made
between
(l)E P E X 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
called "EPEX Spot", acting also as legal successor of APX Power BV and APX
Commodities Ltd. as a result of a merger
(2) EPEX SPOT Belgium SA, a company organised and existing under the laws of
Belgium, having its registered Office at 66 Boulevard de 1'Impératrice, 1000
Brussels, Belgium, and registered with Crossroads Bank for Enterprises RPR
under the company number 0874 978 602 Court of Brussels and VAT n° BE
0874 978 602, hereinafter called "EPEX Belgium",
(3) Nord Pool AS, a company organised and existing under the laws of Norway,
having its registered Office at Vollsveien 17 B, 1366 Lysaker, Norway, and
registered with Register of Business Enterprises in Norway under the number
984 058 098 and VAT n° NO 984 058 098
hereinafter
"Nord Pool",
(4) OMI, Polo Espaňol, 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° ESA86025558,
hereinafter called "OMIE",
(5)Gestore dei M ercati En e rge tici 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° 06208031002, hereinafter referred to as "GME".
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(6)OTE, a.s., a company organised and existing under the laws of the Czech
Republic, having its registered Office at Prague 8 - Karlín, Sokolovská
192/79, PSČ 18600, the Czech Republic, registered in the Commercial
Register led by the Municipal Court in Prague, under the number B7260,
under ID n° 26463318 and VAT n° CZ26463318, hereinafter referred to as
"OTE"
(7)Towarowa Gietda Energii S.A., a company organised and existing under
the laws of the Republic of Poland, having its registered Office at Ksi$ž§ca
4, 00-498 Warszawa, Poland , registered in the commercial register at the
National Court Register i n ____________, under the number 0000030144,
under ID n° 5272266714 and VAT n° PL 5272266714, hereinafter referred
to as "TGE"
(8) Hungarian Pow er Exchange Company Lim ited by Shares, a company
organised and existing under the laws of Hungary, having its registered
Office at 1134 Budapest, Dévai u. 26-28, Hungary , registered in the
commercial register of the Budapest Metropolitan Court, under the
number 01-10-045666, under ID n° 13967808 and VAT n° HU13967808,
hereinafter referred to as "H U PX "
(9) Operatorul Pietei de Energie Electricá §i de Gáze Naturale SA, a
company organised and existing under the laws of Rumania, having its
registered Office at Bd. Hristo Botev 16-18, sector 3, Bucuresti, CP.030236,
Romania , registered in the commercial register led by t h e ____________
Court i n ____________, under the number J40/7542/2000, under ID n°
13278352 and VAT n° R013278352, hereinafter referred to as "O PCO M "
(10) Independent Bulgarian Energy Exchange, a company organised and
existing under the laws of Bulgaria, having its registered Office at 16
Veslets Str., Sofia, 1000, Bulgaria , registered in the commercial register
led by the Bulgarian Registry Agency i n ____________, under the number
____________, under ID n° 202880940 and VAT n° BG202880940,
hereinafter referred to as "IB E X "
(11) BSP Energy Exchange LL C, a company organised and existing under
the laws of Slovenia, having its registered Office at Dunajská cesta 156,
1000 Ljubljana, Slovenia , registered in the commercial register led by the
District Court in Ljubljana, under the number 3327124000, under ID n°
37748661 and VAT n° SI37748661, hereinafter referred to as "BSP"
each of the parties (1) - (11) may hereinafter individually be referred to as "PX" and
the parties (1) - (11) may hereinafter collectively be referred to a s " P X s " o r "PO W ER
EXCHANGES",
and
(12) Indra Czech Republic s.r.o., a company organised and existing under the
laws of the Czech Republic, having its registered Office at Pobřežní 620/3, 186
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00, Prague 8, Czech Republic, and registered with the Commercial Register at
the Prague Municipal Court in section C, filé 44352, under the ID number
65409981 and VAT n° CZ65409981,
Ihereinafter referred to as
the „CONSULTANT" or „INDRA"
POWER EXCHANGES and CONSULTANT are hereinafter referred to individually as the
"Party" and collectively as the "Parties".
Parties, in consideration of the obligations contained herein and with the intention of being
bound hereby, háve agreed on the following wording of this Agreement:
RECITALS:
Whereas
A. INDRA is a company, which offers a range of tendering Consulting Services and has
the knowledge and experience needed to supply the Services which are the purpose
of this Agreement.
B. OTE, a.s., a company organized and existing under the laws of the Czech Republic,
having its registered Office at Sokolovská 192/79, 186 00, Prague 8, Czech Republic,
and registered with the Commercial Register at the Prague Municipal Court in
section B, filé 7260, under the number 26463318 and VAT n° CZ26463318, was
granted a Power of Attorney by PXs to enter in its own name, on its own behalf and
on their behalf into an Agreement with INDRA to provide assistance for the
preparation and coordination of the procurement processes related to the joint
selection. OTE, a.s. contracted INDRA via CONSULTANCY SERVICE AGREEMENT
No.: 46/2012 for the Services stated in this article.
C. The following POWER EXCHANGES agreed to jointly continue with the Services of
INDRA in the area of the project management Office for the design and development
of Cross-border Intraday Solution, as defined in Annex 3:
I. EPEX Spot SE,
II. EPEX SPOT Belgium SA,
III. Nord Pool Spot AS,
IV. OMI, Polo Espaňol,S.A.
V. Gestore dei Mercati Energetici S.P.A.
VI. OTE, a.s.
VII. Towarowa Gietda Energii S.A.
VIII. Hungarian Power Exchange Company Limited by Shares
IX. Operatorul Piet;ei de Energie Electricá §i de Gáze Naturale SA
X. Independent Bulgarian Energy Exchange
XI. BSP Energy Exchange LL C
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D. INDRA was identified by the POWER EXCHANGES, due to its particular skills and
experience, as the best qualified supplier for providing the assistance for the project
management Office Services referred to under whereas C above. The POWER
EXCHANGES therefore unanimously decided to assign the aforementioned Services
to the CONSULTANT.
IN CONSIDERATION OF THE ABOVE, THE PARTIES HEREBY AGREE, UNDER THE
TERMS AND CONDITIONS OF THIS AGREEMENT, AS FOLLOWS:
CLAUSES
1. PURPOSE OF THE AGREEMENT
1.1. CONSULTANT hereby undertakes to supply POWER EXCHANGES with advisory and
consultancy Services, detailed in Annex 2 (hereinafter, the "Services").
1.2. CONSULTANT shall perform the Services as an independent entity, using its own
method and not under direction of POWER EXCHANGES. However, CONSULTANT
must follow guidelines provided by POWER EXCHANGES.
1.3. The Parties acknowledge the importance of legal and regulátory requirements to
which the POWER EXCHANGES are subject as market operators and cross border
intraday trading is subject of regulátory supervision.
1.4. This Agreement is not intended by the Parties to constitute a partnership or formal
business organization of any kind between the Parties, which shall remain as
independent entities. Each Party in this Agreement is an independent entity in all
its operations and activities and the employees ušed by each Party to perform work
under this Agreement shall be its employees exclusively, without any relation
whatsoever to the other Party.
1.5. Parties want expressly to give evidence of the commercial nátuře of their
relationship and of the fact that this Agreement is submitted to the common
provisions of Service Agreements. So the legal relationship between Parties shall
not be considered neither of a labor nátuře, nor an Agency Agreement.
On this sense, CONSULTANT waives and unconditionally and forever releases
POWER EXCHANGES from current and potential actions, causes of action and
liabilities arising under or in respect of a labour or agency relationship.
2. OBLIGATIONS OF CONSULTANT
CONSULTANT hereby undertakes to:
2.1. Punctually provide the Services requested by POWER EXCHANGES in an effective
and diligent manner and with requested availability as detailed in Annex 2;
2.2. Promptly fulfill every task required by POWER EXCHANGES, respecting all needs,
requests and deadlines, essential to satisfactorily comply any project it finds itself
involved in;
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2.3. Perform all Services in compliance with the applicable requirements of laws, rules,
regulations, ordinances and standards, námely those related to sociál insurance,
mandatory insurance, safety at work and tax. CONSULTANT shall indemnify and
hold harmless POWER EXCHANGES from and against any and all liabilities,
damages, claims, fines, penalties and expenses of whatever nátuře arising or
resulting from the violation of such laws by CONSULTANT or its personnel;
2.4. Get all permits, approvals and/or licenses from all local, statě or national
government authorities or public Service undertakings which are necessary forthe
performance of the Agreement, being responsible for their acquisition, with POWER
EXCHANGES' s assistance;
2.5. Guarantee the quality of works and Services provided on the basis of this
Agreement;
2.6. Be responsible for, and, therefore, comply with the tax, employment and sociál
security obligations that correspond to its activity; and
2.7. Fully and faithfully perform all terms, covenants and conditions contained in the
present Agreement.
2.8. CONSULTANT must perform the Services through representatives previously
approved by the Steering Committee (see Annex 2), unless otherwise agreed by
the Parties and approved by the Steering Committee. However, they can be
internally supported by CONSULTANTs staff.
In čase of subcontracting, without prejudice to the previous approval of the Parties,
CONSULTANT shall at all times remain fully responsible and liable towards the
Parties for the performance of the subcontracted part of the Services.
3. OBLIGATIONS OF POWER EXCHANGES
POWER EXCHANGES shall comply with all the provisions foreseen in this Agreement:
• Pay the Services provided by CONSULTANT in due time according to provisions
defined under Article 6;
• Provide all the necessary guidelines and Information required to enable the full,
complete and faithful execution of the Services foreseen in this Agreement.
• Provide cooperation that is needed for the CONSULTANT so that the
CONSULTANT can provide the Services requested by POWER EXCHANGES in an
effective and diligent manner.
4. TERM OF THE AGREEMENT
4.1 This Agreement will come into force on the dáte of its signatuře by Parties with
retroactive effect as of January l st 2014. Should not all Parties sign on the same
dáte, the trigger dáte for this entry into force will be the dáte of the last Party's
signatuře.
4.2 This Agreement shall be in force for a fixed period of time until December, 31st
2019, with the possibility of entering into extension agreements, if needed based
on the previous written amendments to this Agreement.
5. PLAČE AND SCHEDULE OF PROVISION
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5.1. INDRA may work from POWER EXCHANGES' premises oř its own premises oř any
plače designated by POWER EXCHANGES.
5.2. Travelling in the Czech Republic is covered by the Fee as defined in Annex 2 and
shall not constitute a Cost.
6. PRICE. INVOICES AND PAYMENTS
6.1. In consideration for the Services rendered by the CONSULTANT to POWER
EXCHANGES, the latter shall pay the regular and accepted invoices pursuant to the
following rules:
• The price for the Services shall be based on the rates stated in Annex 2 of
this Agreement. These rates are set as daily fixed gross amounts in Euro
(EUR) per man day, VAT excluded.
6.2. Invoicing and payments
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6.3. If any, travel expenses, travel costs and accommodation costs for meetings with
the POWER EXCHANGES outside the Czech Republic oř other costs (hereafter the
"Costs") may be invoiced separately by CONSULTANT at cost to POWER
EXCHANGES provided that
7. CONFIDENTIALITY
7.1. INDRA undertakes not to disclose and to maintain strictly confidential any
confidential information, as hereinafter defined, of which it gains knowledge oř to
which it has access within the context of providing the Service. INDRA
acknowledges having been informed personally and specifically and having
understood the specific provisions with regard to confidentiality to which the PXs
are subject as market operators, in particular with respect to market data.
7.2. For the purpose of this Agreement any information exchanged between any one oř
more of the PXs on the one hand ("Disclosing Parties") and INDRA on the other
in respect of the Service, the cooperation and/or this Agreement is to be considered
as confidential information ("Confidential Information"), to the exception of
information which is:
a.) already in the public domain at the time it is divulged, it being understood that
the foregoing only applies to the extent INDRA proves to the satisfaction of the
Disclosing Parties that the information was already in the public domain at the
time of divulgation;
b.) already known to INDRA at the time it is divulged and not having been
previously obtained either directly oř indirectly from the Disclosing Parties, it
being understood that the foregoing only applies to the extent INDRA proves to
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the satisfaction of the Disclosing Parties that the information was already known
to it at the time of divulgation;
c.) after having been divulged, it becomes accessible to INDRA following a lawful
communication by a third party without breaching any obligation of
confidentiality (explicit or implied) to the extent INDRA proves to the satisfaction
of the Disclosing Parties that the information was lawfully communicated by
such third party.
7.3. Notwithstanding the foregoing, INDRA undertakes to maintain strictly confidential
any Confidential Information and not to divulge it, in whatever form that may be,
except if disclosure thereof is required by law or by competent administrativě or
judicial authorities provided that such authorities háve a legally justified need to
know such information and are, by law or contractually, bound to respect the
confidential nátuře of this information under terms equivalent to the terms of this
Agreement. In the event that INDRA is required in accordance with this Article to
disclose any Confidential Information, it shall first give immediate written notice of
such requirement to the Disclosing Parties to allow it, if possible, to intervene in the
proceedings or to také all possible measures to POWER EXCHANGES its interests in
the matter.
7.4. INDRA acknowledges and confirms that the Disclosing Parties are subject to specific
disclosure obligations and must háve the right to use the information provided by
INDRA and disclose Confidential Information to other stakeholders when required
by law or by competent administrativě or other authorities.
7.5. INDRA shall make no reference either to the Agreement or to the work doně within
its context or even to the relationship with the PXs, in any publication or
presentation of a technical, commercial or other nátuře, without the prior explicit
written agreement of the PXs. INDRA is however allowed to refer to (one of) the
PXs as (one of) its POWER EXCHANGES and to mention in brief the scope of the
cooperation. For the avoidance of doubt, POWER EXCHANGES and the other PXs
shall be entitled to provide any report delivered by INDRA to its POWER EXCHANGES
or any third party or to make it public in whatever form, provided that reference is
made to INDRA, except in the event INDRA has indicated in a motivated writing
that such report contains sensitive information and may not be communicated. In
such event the Parties shall in good faith determine how such report can be
communicated without disclosing such sensitive information. For the avoidance of
doubt, INDRA is not allowed to represent or to make public statements on the
cooperation unless otherwise agreed in writing by POWER EXCHANGES.
7.6. INDRA undertakes to fulfil the confidentiality undertakings under this Article and to
háve them fulfilled by their representatives, members of staff and any third party
to whom it has subcontracted or delegated part of the activities under this
Agreement, throughout the term of this Agreement and during five (5) years
following its termination or expiration. Any breach of the confidentiality
undertakings under this Article by members of staff of INDRA and/or (possibly) by
a third party to which INDRA has subcontracted or delegated part of the activities
under this Agreement, shall be considered as being a materiál breach on the part
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of INDRA. INDRA shall be jointly and severally liable with such representatives,
members of staff and/or such third party for any loss and damage (including indirect
loss) resulting from a breach by such representative, member of staff or third party
of this Article.
7.7. Immediately upon receiving the written request of the Disclosing Party, INDRA shall
return any and all Confidential Information to the Disclosing Party, and shall, to the
extent possible, at first written request of the Disclosing Party destroy all not
returned Confidential Information and prove such destruction to the respective
Disclosing Party. To the extent the Computer back-up procedures of INDRA create
copies of the Confidential Information, INDRA may retain those copies for the period
they normally archive backed-up Computer records (in any event no longer than 3
months), which copies are subject to the provisions of this Agreement until they
are destroyed.
7.8. INDRA will ensure that its representatives, employees and agents also comply with
the obligation under this Article.
7.10. POWER EXCHANGES may disclose Confidential Information including terms and
rights of this Agreement to Power Exchanges, as well as POWER EXCHANGES may
regularly inform the other POWER EXCHANGES on the content of the negotiations
with CONSULTANT and the Agreement forming part of such negotiations, as well as
provide them with the finál version for signing of the Agreement. In addition to that,
for avoidance of doubt, INDRA acknowledges that POWER EXCHANGES shares all
Information, documents, data, outcomes etc. with other POWER EXCHANGES
related to provision of Services under this Agreement.
8. DATA PROTECTION
8.1. The Parties undertake to fulfill all the obligations concerning data POWER
EXCHANGES deriving from Belgian legislation and complementary provisions. The
duties set up in the foregoing conditions will be applied by Parties not solely with
respect to its employees but also to their subsidiary and affiliated companies,
POWER EXCHANGES and all of those which could háve access to POWER
EXCHANGES personál data by any means.
8.2. The Parties agreed to use a Project Plače as the common storage for the data and
documents. The CONSULTANT is not responsible for the management of access
rights to the Project Plače.
9. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
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9.1. It is explicitly agreed between the Parties that the documentation, software,
specifications and any other information provided by the POWER EXCHANGES within
the context of the Services (the "Data") to CONSULTANT shall be and remain the
exclusive property of the Power Exchange providing such Data, as the čase may be,
and that CONSULTANT shall not benefit from any right in their regard, except the
non exclusive and non transferable, right to use those Data solely to the extent that
such use is strictly necessary for the provision of the Services.
9.2. All works, preparations, creations, studies, researches, experiences, inventions or
other information, including without limitation all documents, drawings,
documentation, manuals, reports, schemes, software (systém programs,
applications, object codes, source codes), algorithms, technologies, business
secrets, methods, inventions, findings, know-how technical or other data,
databases, statistical analyses as well as information derived directly or indirectly
there from, of whatever kind, developed by CONSULTANT, as the čase may be,
pursuant to or in connection with the Services provided under this Agreement or
constituting a direct or indirect result of the performance by CONSULTANT of this
Agreement (the "Developments"), shall become the Power Exchanges' joint
property as they are developed, at no additional cost or remuneration and all
intellectual property rights in respect thereto shall be vested with the POWER
EXCHANGES to the fullest possible extent, and to the extent necessary, immediately
transferred and/or assigned to the POWER EXCHANGES as from their creation.
9.3. In čase of termination of this Agreement the POWER EXCHANGES shall thus be
considered the co-owners of all Developments and the intellectual property rights
pertaining thereto and the POWER EXCHANGES shall thus be entitled to maintain
and use all these Developments, at no additional cost or remuneration provided
POWER EXCHANGES pays all payments according to this Agreement.
9.4. The CONSULTANT undertakes to provide the POWER EXCHANGES costless with all
useful support in obtaining and maintaining the right or legal title concerned, this
including but not limited to the signatuře of documents useful to its participation in
procedures for obtaining the said right or title.
9.5. Notwithstanding the above, CONSULTANT reserves the right to use the
Developments, for internal work purposes for other projects, this however only in
as far as such Developments do not contain Confidential Information. The
CONSULTANT is not entitled to convey any rights of any nátuře thereon to any of
its other Power Exchanges.
9.6. For the purpose of this Article, intellectual property rights shall mean all existing
and future, registered or unregistered, intellectual, industrial, commercial and all
other property and similar or related rights, title and interest including applications
for the same, in the Czech Republic and/or elsewhere in the world, including but
not limited to copyrights, neighboring rights, portrait rights, moral rights, sui
generis database rights, models and design rights and all other possible rights in
the field of literatuře, arts and science, rights to patents or patent applications,
topography rights, rights to know-how or trade secrets, and all other rights on
intellectual creations in the field of technology, trademarks, trade names rights to
statutory and commercial denominations, domain names and all other possible
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rights to signs ušed in business to distinguish one good oř Service from another in
trade;
9.7. CONSULTANT will ensure that its representatives, employees and agents also
comply with the obligation under this Article 7.
9.8. CONSULTANT shall not (without the prior writing consent of POWER EXCHANGES)
publish oř use any advertising, sales, promotions, press release oř other publicity
which use the logo oř trademarks of POWER EXCHANGES.
9.9. Each Party shall remain the owner of all intellectual and industrial property rights
ověř any materiál, documents, products, software, etc., and know-how which it has
developed, created oř otherwise owns before entry into force of this Agreement oř
preceding contractual documents (i.e. Letter of Intent), and nothing in this
Agreement shall constitute oř imply a transfer of license.
10. SEVERABILITY
10.1. If one oř more of the provisions of this Agreement is declared to be invalid, illegal
10.2. oř unenforceable in any respect under any applicable rule of law oř public policy,
the validity, legality and enforceability of the remaining provisions contained herein
shall not in any way be affected and these provisions shall remain in full force and
effect as long as the economic oř legal substance of this Agreement is not affected
in any materiál manner adverse to any Party. In such event, the Parties shall
immediately and in good faith negotiate a legally valid replacement provision with
the same economic effect.
Any failure to enforce any provision of this Agreement by either Party shall not
invalidate that provision oř any other provision of this Agreement nor the
Agreement as a whole.
11. TERMINATION OF THE AGREEMENT
11.1. Notwithstanding Clause4, in the event of a materiál breach of any term orcondition
11.2. of the present Agreement by either Party, the non-defaulting Party may request, in
a written notice, the defaulting Party to cure the breach within fifteen (15) days. If
within the said period of time the breach has not been cured, the non-defaulting
Party shall be entitled to terminate this Agreement, without court intervention and
without any compensation being due to the defaulting Party, without prejudice of a
subsequent claim for damages to the defaulting party.
In addition, the POWER EXCHANGES are entitled to immediately terminate this
Agreement, without any Court intervention and with no compensation being due -
except for the right of CONSULTANT for the payment of Services already provided
until the dáte of the termination - by informing the CONSULTANT by registered
letter with acknowledgement of recipe, because of the following reasons:
a) in čase of bankruptcy of CONSULTANT, oř in čase CONSULTANT ceases its
business oř becomes the object of a liquidation oř dissolution oř is the object of
an appointment of receiver, oř admitted in writing its inability to pay its debts
generally as they come due (to the extent compatible with the applicable law);
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11.3. b) in the event that a legislativě oř regulátory act, decree, decision, opinion,
11.4. proposal oř demand issued by a competent court oř by a competent regulátory,
administrativě oř other governmental authority for any Power Exchange requires
an amendment oř the termination of the Agreement. The POWER EXCHANGES
shall request to reasonably amend oř, if necessary, terminate the Agreement
immediately by registered letter, without court intervention oř compensation to
CONSULTANT for such termination. CONSULTANT shall not be entitled to any
compensation whatsoever in the event of such termination;
c) in the event of a significant and detrimental change in the legal status, legal
structure, the activities and/or the financial situation of the CONSULTANT, which
reasonably leads to the conclusion that the terms and conditions of the
Agreement can oř will, in a nearby future, no longer be satisfactorily complied
with by the CONSULTANT.
Termination reasons according to the Art. 11.1 and 11.2.a), b) and c) do not affect
in any way a right of CONSULTANT for remuneration for the Services already
provided until the moment of the termination of this Agreement and remuneration
in minimum amount as defined in Article 6 of Annex 2 shall not applied in these
cases.
In addition, the POWER EXCHANGES are also entitled to immediately terminate this
Agreement, without any Court intervention and with no compensation being due
except for the right of CONSULTANT for remuneration in minimum amount defined
in the Article 6 of Annex 2 thereof oř except for the payment of any fees and costs
related to the Services performed by CONSULTANT before such termination if
minimum amount defined in the Article 6 of Annex 2 is already reached, for
convenience by registered letter with acknowledgement of recipe.
Notwithstanding the expiration oř termination of this Agreement in accordance with
the above, Clauses seven (7), eight (8) ten (10), twelve (12), thirteen (13) and
fourteen (14) shall continue to apply after its termination.
12. CONTINUITY
In the event of early termination, CONSULTANT must assure the continuity of the
Services. In this čase CONSULTANT shall reasonably cooperate with the POWER
EXCHANGES to operáte the migration of the Services (including but not limited to
handover of all documentation) to the POWER EXCHANGES oř to the third party
appointed by them, in view of guaranteeing the continuity thereof. Such assistance
and cooperation shall be performed by CONSULTANT during a period of at least two
(2) months but not longer than during the term of this Agreement oř its extension.
For saké of clarity, the continuity of Service shall be paid according to terms and
conditions stated in Annex 2.
13. GOVERNING LAW AND RESOLUTION OF DISPUTES
13.1. This Agreement shall be governed by the terms set forth in this document and, on
a supplementary basis, by the provisions of the Belgian Law.
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13.2. The Parties shall attempt to solve any dispute, controversy oř claim arising out of
13.3. oř in connection with the Agreement, by means of an amicable settlement.
Should the Parties fail to reach an agreement within fifteen (15) days after the
13.4. notification of occurrence of such dispute, controversy oř claim, then the dispute,
controversy oř claim shall be finally settled by the arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce. Such
Arbitration shall be conducted in Brussels (Belgium). The proceedings shall be
conducted in English.
The Parties expressly waive their own jurisdiction in the event of any dispute oř
controversy arising out of oř related with the performance, construction, breach,
resolution, oř nullity in whole oř in part of this Agreement.
14. MISCELLANEOUS
14.1. This Agreement constitutes the full and complete agreement between the Parties,
and supersedes all prior agreements and understandings between the Parties
relating to the purpose of the Agreement and is intended by the Parties as the
complete and exclusive statement of the terms of their agreement.
14.4. For the avoidance of doubt, nothing in this Agreement shall preclude CONSULTANT
to perform other Services for POWER EXCHANGES oř any otherof the PXs to conclude
14.5. Agreement with CONSULTANT in its own name and on its own behalf for other
14.6. Services.
The Parties cannot, without the written consent of the other Party create oř assume
obligations of any type, on behalf of the other, nor represent the other Party.
No change, alteration, modification oř addition to the Agreement shall be binding
on the Parties except if made by written amendment duly signed by all Parties oř
except in čase the PXs Steering Committee is entitled under the Agreement to make
changes to it. In deviation of the foregoing principle, Parties hereby expressly agree
that such written agreement is not required in čase of a change of:
CONSULTANT employee(s), provided the proceduře of such change as
specified in the Annex 2 of this Agreement is complied with
the contact information provided in Annex 1, through notification by the
concerned Party.
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14.7. All notices and Communications under this Agreement between the Parties shall be
sent to the addresses specified at the beginning of this Agreement. Should the
address of either Party change, this change must be notified immediately in writing
to the other Party.
14.8. The Parties agree that the working language for all notifications and for all matters
relating to this Agreement shall be English, to the extent compatible with the
applicable provisions of mandatory law, if any.
14.9. The Annexes to this Agreement form an integrál part thereof and any reference to
this Agreement shall include a reference to the Annexes and vice versa. In čase of
any discrepancy or contradiction between the provisions in the main body of this
Agreement and the contents of the Annexes, the wording of the main body shall
prevail.
14.10. Any change to this Agreement can only be validly agreed upon in writing, duly
signed by the legal representatives of the Parties.
14.11. CONSULTANT may not assign or transfer this Agreement, partially or as a whole,
unless with the prior explicit written consent of POWER EXCHANGES which will not
be unreasonably withheld or delayed.
15. NEW PARTIES
15.1. The Parties accept that new party(ies) can enter into this Agreement subject to the
following cumulative conditions:
i) being a PX;
ii) a decision of the PXs Steering Committee to extend this Agreement to
this(ese) new party(ies), on the revised cost sharing mechanism and
provided that CONSULTANT has given its prior consent;
iii) the new party(ies) signing the accession form as substantially set forth in
Annex 4.
The sharing key will be adapted in čase of accession of a PX.
In witness thereof, the Parties háve caused their duly authorised representatives to
execute the present Agreement in twelve (12) originál copies and each Party acknowledges
having received its originál copy.
- Signatuře Pages Follow -
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SIGNATORY PAGE - EPEX SPOT
for and on behalf of
EPEX SPOT SE
Name:
Title:
Dáte:
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SIGNATORY PAGE - EPEX BELGIUM
for and on behalf of
EPEX SPOT Belgium SA
Name:
Title:
Dáte:
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SIGNATORY PAGE - NORD POOL
for and on behalf of
Nord Pool AS
Name:
Title:
Dáte:
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SIGNATORY PAGE - OMIE
for and on behalf of
OMI, Polo Espaňol S.A.
Name:
Title:
Dáte:
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SIGNATORY PAGE - GME
for and on behalf of
Gestore dei Mercati Energetici S.P.A.
Name:
Title:
Dáte:
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SIGNATORY PAGE - OTE
for and on behalf of
OTE, a.s.
Name:
Title:
Dáte:
SIGNATORY PAGE - TGE
for and on behalf of
Name:
Title:
Dáte:
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SIGNATORY PAGE - HUPX
for and on behalf of
Name:
Title:
Dáte:
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SIGNATORY PAGE - OPCOM
for and on behalf of
Name:
Title:
Dáte:
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SIGNATORY PA G E- IBEX
for and on behalf of
Name:
Title:
Dáte:
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SIGNATORY PAGE - BSP
for and on behalf of
Name:
Title:
Dáte:
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SIGNATORY PA G E- INDRA
for and on behalf of
Indra Czech Republic s.r.o.
Name: Mr. Luis Alberto Calvo Campos
Title: Executive
Dáte:
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Annex 1: Contact inform ation
For INDRA
For EPEX Spot
For EPEX Belaium
For Nord Pool AS
For OMIE
For GME
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For OTE
For TGE
For HUPX
For OPCOM
ForIBEX
For BSP
For Invoicinq
For INDRA
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For EPEX Spot
For EPEX Belaium
For Nord Pool AS
For OMIE
For GME - Struttura Amministrazione Finanza e Controllo
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For HUPX
For OPCOM
ForIBEX
For BSP
For Steerinq Committee
(email address for each Steering Committee Member)
For EPEX Spot
For EPEX Beloium
For OMIE
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Substitute:
For Nord Pool AS
Substitute:
For GME
Substitute:
For OTE
For TGE
For HUPX
For OPCOM
ForIBEX
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For BSP
Annex 2: Services
1. Services
This Agreement assigns to CONSULTANT the provisions of the Project Management
Office (PMO) Services to the PXs, consisting of:
• Management, coordination and preparation of the project management Office tasks
for the Cross-Border Intraday Solution in accordance with the instructions of PXs,
implying amongst others the preparation of the necessary documents, participation
to the relevant meetings, planning and follow up of PXs' deliverables, reporting,
communication and coordination between PXs and with the candidates
• Management of the agenda and tasks of the Project Board, Project Management Core
Team, PXs Steering Committee, Change Control Board, Technical Working Group
(including all task forces under responsibility of the Technical Working Group) and
Procedural Working Group including support in drafting of relevant documents.
• Daily management of the communication with Vendor, TSOs and NRAs and
management of the Project Plače (accounts, documents). Performance of the actions
defined by the PXs Steering Committee, Project Board, Change Control Board,
Technical Working Group (including all task forces under responsibility of the
Technical Working Group) and Procedural Working Group in accordance with the
further instructions of PXs.
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2. Type of Agreement
The Services are provided on a time and materiál basis; however, the minimum extent
of the Services to be provided according to this Agreement is not set.
3. Start of the Services
This Agreement shall apply retroactively to the Services provided since January l st,
2014, except if provided otherwise.
4. Expected duration of the Services
Till December 31st, 2019, with the possibility of entering into extension agreements if
needed.
5. CONSULTANT's availability
CONSULTANT shall be available during Office hours on a daily basis.
6. Fee
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Period January - March 2015:
Period April 2015 - April 2018:
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Further the Parties háve aqreed followinq:
7. Other inform ation if applicable
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The CONSULTANT is requested to perform the Services through the consultants
mentioned in Art. 1 of this Annex 2. with no junior consultant as backup (junior
consultants may be ušed for internal purposes), unless otherwise agreed upon by the
POWER EXCHANGES.
The CONSULTANT shall be requested to report directly to POWER EXCHANGES.
8. Appendixes
Appendix 1 - Summary on the workload and optimization of PMO Services
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Appendix 1 - Summary on the workload and optim ization of PMO Services
1. Purpose
2. Overal I view of XBID Proiect
■
3. Workload Ratio
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5. Future workload
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I I
I
I
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Annex 3: Definitions
For saké of clarity, the Parties agree the following definitions apply to this Agreement:
Business Day means, in relation to each Power Exchange, any day, with the exception of
Saturdays and Sundays, in which banks are generally open to public in the country of
incorporation of the relevant Power Exchange.
Cross-border Intraday Solution: means the solution to be implemented for the implicit
cross border continuous intraday capacity allocation within the European Union according
to the principles set forth in relevant European regulation.
Steering Com mittee means the committee responsible for the efficient management of
the PX XBID project, for ensuring that the PX XBID project is focused throughout its
lifecycle on achieving the objectives and delivering the required deliverables and for the
overall direction of the PX XBID project and comprising all Parties with their representatives
authorised to také decisions for their own organization on the PX XBID project (stratégy,
organisation, financial aspects, etc.). The powers of Steering Committee to the extent of
this Agreement are established by the Power of Attorney (as referred in whereas recitál E)
and its members are listed in Annex 1. All decisions of Steering Committee shall be taken
on unanimous basis.
W holly A ffiliated Undertaking means an undertaking whose share Capital is wholly
owned by a Party or whose share Capital is wholly owned by a Party together with its parent
undertaking holding 100% of the share Capital of such Party, it being understood that the
notion of control is irrelevant for the determination of the applicability of this term.
PMO means Project Management Office, working team of the CONSULTANT that defines
and maintains standards for project management within the project. The PMO is
responsible for the standardization and overall support of the project.
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Annex 4: Accession Form
Accession form of a new party to the:
Consultancy Service Agreement
(the "Agreement")
[COMPANY NAME], a company incorporated under the laws of [COUNTRY], having its
registered Office at [ADDRESS], [COUNTRY], registered under the number [NUMBER]
hereby consents, pursuant to the PXs Steering Committee decision dated [dáte] to extend
the Agreement to it, and pursuant to Article 15 of the Agreement, to become a Party to
the Agreement and to accept all the relevant rights and obligations of a Party under the
Agreement starting [dáte].
This accession form has been doně in [*** (as many as there are parties to the Agreement
before the accession)] originál copies, to be duly signed by the undersigned authorized
representatives, with each originál to be sent to each of the other Parties under the
Agreement.
For the avoidance of doubt, all capitalized terms in this accession form shall háve the
meaning set forth in the Agreement.
[Dáte and Plače]
[INSERT NAME OF THE NEW PARTY]
Signature(s) Name(s) Title(s)
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