-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
1
4M MC PX-PX Agreement
Party Number of Contract
OTE
OKTE
HUPX
OPCOM
The present agreement (hereinafter the “Agreement”) is made by
and between:
BETWEEN:
1. OTE, a.s., (hereinafter “OTE”) a company founded and duly
existing in accordance with the laws of the Czech Republic and
registered in the Company Register administrated by the Municipal
Court in Prague, Section B, File 7260 with registered office
located at Sokolovská 192/79, 186 00 Praha 8 – Karlín, the Czech
Republic; Registration Number of the Company (IČ): 26 46 33 18,
AND
2. OKTE, a.s., (hereinafter “OKTE”) a company founded and duly
existing in accordance with the laws of the Slovak Republic and
registered in the Company Register administrated by the District
Court in Bratislava I, Section Sa, File 5087/B with registered
office located at Mlynské nivy 59/A, 82109 Bratislava, the Slovak
Republic; Registration Number of the Company (IČ): 45 687 862,
AND
3. HUPX Magyar Szervezett Villamosenergia-piac Zártkörűen Működő
Részvénytársaság (hereinafter “HUPX”) (Hungarian Power Exchange
Company Limited by Shares, HUPX Ltd.), a company founded and duly
existing in accordance with the laws of Hungary and registered in
the Company Register administrated by the Budapest Metropolitan
Court, with registered office located at H-1134 Budapest, Dévai
utca. 26-28, Hungary; Registration Number of the Company:
01-10-045666,
AND
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
2
4. Operatorul Pietei de Energie Electrica si de Gaze Naturale
“OPCOM” S.A., (hereinafter “OPCOM”) a company duly organized and
existing under the laws of Romania, with registered office in 16-18
Hristo Botev Blvd, Sector 3 Bucharest 030236, Romania, registered
with National Trade Register Office Bucharest under number
J40/7542/2000, VAT number (CIF) RO13278352,
Hereinafter referred to individually as “PX” or “Party” and
collectively as “PXs” or “Parties”;
WHEREAS: A) Article 16 of Regulation (EC) N° 714/2009 of the
European Parliament and of the
Council of 13 July 2009 on conditions for access to the network
for cross border exchanges in electricity and repealing Regulation
(EC) N° 1228/2003 (the “Regulation”), contains rules regarding
congestion management which amongst others prescribes that network
congestion problems shall be addressed with non-discriminatory
market-based solutions which give efficient economic signals to the
market participants and transmission system operators involved and
that network congestion problems shall preferentially be solved
with non-transaction based methods, i.e. methods that do not
involve a selection between the contracts of individual market
participants;
B) PXs are recognised as the operators responsible for ensuring
non-discriminatory, transparent, market based and confidential
price formation between market players, via exchange platforms;
C) Implicit allocation of capacity via PXs’ platforms is a
recognised market based,
non-discriminatory, transparent capacity allocation method;
D) The Parties have entered into a collaboration regarding
technical assessment concerning a day-ahead Market Coupling of the
Czech Republic, Slovakia, Hungary and Romania (the “4 Market Market
Coupling” or the “4M MC”) together with relevant Transmission
System Operators (the “TSOs”) and with support of National
Regulatory Authorities (the “NRAs”). This 4M MC collaboration has
been formalized by: a. Non-disclosure agreement on the extension of
the CZ-SK-HU MC dated on
July 5th 2013; b. Memorandum of Understanding signed on July
11th 2013 c. Updated High Level Market Design approved by PXs and
TSOs on 2th April
2014
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
3
d. 4M MC Master Agreement;
E)
F)
G) The Parties now wish to determine in this agreement the main
terms and conditions of their cooperation for operation of the 4M
MC (the “4M MC Cooperation”);
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
4
TABLE OF CONTENTS ARTICLE 1. INTERPRETATION
...................................................................................................
5
ARTICLE 2. OBJECT OF THE AGREEMENT
................................................................................
13
ARTICLE 3. CONTRACTUAL DOCUMENTS
................................................................................
14
ARTICLE 4. GENERAL PRINCIPLES AND OBLIGATIONS
.............................................................
14
ARTICLE 5. CHANGES TO THE PCR ASSETS AND/OR INDIVIDUAL ASSETS
AND/OR OPERATIONAL PROCEDURES
............................................................................................................
18
ARTICLE 6. DAILY OPERATION 4M MC
....................................................................................
20
ARTICLE 7. CONFIDENTIALITY
.................................................................................................
30
ARTICLE 8. LIABILITY AND FORCE MAJEURE
...........................................................................
33
ARTICLE 9. ENTRY INTO FORCE - TERM
...................................................................................
38
ARTICLE 10. TERMINATION
......................................................................................................
38
ARTICLE 11. APPLICABLE LAW
..................................................................................................
41
ARTICLE 12. DISPUTE RESOLUTION
..........................................................................................
41
ARTICLE 13. 4M MC PX MANAGEMENT AND GOVERNANCE
.................................................... 43
ARTICLE 14.
COMMUNICATION................................................................................................
44
ARTICLE 15. MISCELLANEOUS
..................................................................................................
45
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
5
ARTICLE 1. INTERPRETATION
1.1 Definitions For the purpose of the Agreement the following
capitalized terms and expressions used herein shall have the
following meaning:
“4M MC”: means “4 Markets Market Coupling”, being the Day-Ahead
Market Coupling as described in the Master Agreement and covering
the Day-Ahead Markets of the Czech Republic, Slovak Republic,
Hungary and Romania;
“ACER”: means the Agency for the Cooperation of
Energy Regulators as established by Regulation No 713/2009 of
the European Parliament and of the Council of 13 July 2009;
“Annex”: means any attachment to this Agreement; “ATC” means
Available Transfer or Transmission
Capacity as defined in Master Agreement “Article”: means an
article of this Agreement; “Best Efforts”: means committing to
perform an obligation
with the degree of diligence, prudence and foresight reasonably
and ordinarily exercised by an experienced Person engaged in the
same line of business under the same circumstances and conditions,
without guaranteeing the achievement of a specific result;
“Bid”: means a binding order to deliver or take off
electricity against payment, including but not exclusively,
hourly orders and block orders, as further defined in the PX market
rules applicable to the concerned PX;
“Bidding Area”: means the geographical area where the
delivery or take off of electricity, resulting from
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
6
the matched Bid(s), takes place;
“Business Day “ hereinafter also named “day”, means all calendar
days, Working or Non-Working Day, when trading is performed, i.e. a
period of 24 consecutive Traded Hours of a day, with the exception
of the switch from standard time to daylight savings time (CET):
during the day when daylight savings time starts it means a period
of 23 consecutive Traded Hours, and during the day when the
daylight savings time (CET) is switched back to standard time it
means 25 Traded Hours; the first Traded Hours starts at 00.00.00
and ends at 01.00.00.
“Change Control Procedure”: means the procedure set forth in
Annex IV
containing the conditions and procedure for requesting, deciding
upon and/or implementing changes to the PCR Assets and Individual
Assets;
“Confidential Information”: shall have the meaning set forth in
Article 7; “Control” the control is presumed in case it results
from
rights, contracts or other elements that grant, individually or
taken together and considering de facto and de jure circumstances,
the possibility to exercise decisive influence over an undertaking,
especially through :
a.) rights of ownership or of usage of the whole or part of an
undertaking’s assets;
b.) rights or contracts that grant a decisive influence over the
undertaking structure;
c.) the deliberations or decision - making of the undertaking’s
management;
“Coordinator”: means the Party having the PCR Assets and
assuming and performing the role as described
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
7
in Article 6.2, also referred to as 4M MC Coordinator in
Operational Procedures;
“Coordinator Rotational Scheme”:
means the list setting forth the Parties that shall on rotating
basis act as Coordinator, including MC Operator;
“Decouple”: means to temporarily not participate in 4M
MC following the procedure set forth in the Operational
Procedures;
“Decoupling”
means a situation in which the 4M MC results cannot be
determined as result of common MC calculation for all Market Areas
involved in 4M MC.
“Defaulting Party”: means the Party that has committed a
breach
of any of its obligations under this Agreement; “Defendant
Party” means the Party receiving the claim from any
other Party or third party; “Dispute”: shall have the meaning
set forth in Article 12; “Disputing Parties”: shall have the
meaning set forth in Article 12.2; “Dispute Settlement Request”:
shall have the meaning set forth in Article 12.2;
“External Representative”: shall have the meaning set forth in
Article
7.2.2; “Force Majeure”: shall have the meaning set forth in
Article 8.5. “ICC”: shall have the meaning set forth in Article 12;
“ICT”: means information and communication
technologies; “Incident”: means the occurrence of a
circumstance
impacting the operation of 4M MC; “Incident Committee Call”:
shall have the meaning set forth in Article
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
8
6.1.4; “Individual Asset”: means an asset (includes business
processes
and procedures) used by a Party that does not qualify as a PCR
Asset and which is necessary for the functioning and operation of
4M MC;
“Internal Representative”: shall have the meaning set forth in
Article
7.2.2; “Legal Provision”: means any type of mandatory legal
provision
of public order, proclaimed by any national, European or other
competent authority;
“LOM”: means Local OPSCOM Member as described in Annex IV.;
“Master Agreement” means 4M MC Master Agreement on mutual
cooperation in organizing cross-border day-ahead electricity
market through implicit auctions between Parties and respective
TSOs,. If Master Agreement is amended, the amended version has
preference.
“Market Area” The smallest geographical area for which one
single clearing price in the Market Coupling is always
applicable.
“Market Coupling”: also named “MC”, means a coordinated
day-ahead electricity implicit auction mechanism, performing the
matching of the supply and demand curves of different PXs, taking
into account the cross border capacity made available by the TSO’s,
using a software application embedding a matching algorithm;
“Market Coupling Results”: means the results of the 4M MC
Market
Coupling, calculated in accordance with Article 6 and consisting
of, for each PX (added and detailed according to the PCR MC results
standard, as agreed between the PXs involved in 4M MC) as well as
for each TSO (TSO Results, as agreed between the 4M MC
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
9
Parties): - Market Clearing Price in each Bidding
Area; - Trading position of each Market Area
(Net Positions); - Cross-border Exchanges; - Accepted block
bids.
“Market Data”: means anonymous data from a Party relating
to the Bids of its Own Market participants including single Bids
and block Bids, the network data, at the closing of the market,
respectively the Market Coupling Results.
“Market Rules”: means the terms and conditions regarding the
organization, the functioning, the access to and the trading on
the trading platform operated by a PX, governing the relationship
between such PX and its members;
“Material Breach” means a breach by one of the Parties to
the
Agreement of one of its obligations under the Agreement, which
is or is reasonably likely to be so substantial that it defeats the
purpose of the other Parties in entering and performing the
Agreement.
“MC Operator” means the Party having the PCR Assets and
assuming the specific tasks as described in Article 6.5;
“Notice”: shall have the meaning set forth in Article 15.1;
“NRA”: means the national regulating authority
designated at national level on the basis of article 35 of
Directive 2009/72/EC of the European Parliament and the Council of
13 July 2009 concerning common rules for the internal market in
electricity and repealing Directive 2003/54/EC;
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
10
“Operational Breach”: means any breach of Article 6, except
for
Articles 6.7, 6.8, 6.9 and 6.10. “Operational Calendar”: means
the calendar setting forth the periods
during which a Party will assume the Coordinator role (including
MC Operator tasks) set forth in Article 6;
“Operational Date”: means the date at which Parties have
decided
that 4M MC shall be operational between them, i.e. the day
before delivery day;
“Operational Procedures”: means the procedures for operation of
4M
MC;
“Operational Year”: means a period of one year starting on the
same day as Operational Date and ending on the day before the day
of Operational Date in the following calendar year;
“Operator”: means the Party having the PCR Assets and
assuming and performing the role as described in Article 6.3,
also referred to as 4M MC Operator in Operational Procedures;
“OPSCOM”: means Operations Committee as described in Article 5.6
and Annex IV;
“Own Market”: means a day-ahead auction market directly
managed/operated, in its own name and on its own behalf, by a
Party i.e. a market place for which participants have signed with
such Party or such subsidiary an agreement according to which the
Party or such subsidiary is responsible for matching the Bids of
participants in those Bidding Area(s) according to predefined rules
or a market for which a Party has been designated by law (including
international treaties) or regulatory deed as operating this
market;
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
11
“PCR”: means price coupling of regions; “PCR Assets”: means the
assets that are co-owned by the
PCR Parties under the PCR Co-Ownership Agreement such as but not
limited to up-to-date versions of PMB and EUPHEMIA and PCR
Procedures. For clarity, OTE and the Servicing PCR Party are
co-owners of PCR.
“PCR Party”: signatories of the PCR Cooperation Agreement
and of the PCR Co-Ownership Agreement; “PCR Market Coupling
System”: means the data processing environment
(software, , respectively PMB and EUPHEMIA algorithm, and PCR
procedures) that will be used to calculate the Market Coupling
Results;
“Person”: means any individual, company, entity,
business, partnership, joint venture or other person whatsoever,
in the broadest meaning of the word;
“PX”: means a Power Exchange/Market Operator,
Party of 4M MC, a company legally incorporated for and
responsible for organizing directly, or through services of a third
party, market allowing wholesale trade of electricity, to be
delivered in a certain Bidding Area, or of electricity related
products. For clarity, PX represents a Party of the present
Agreement.
“Service Agreement” means an agreement concluded between
each
Serviced Party and Servicing PCR Party and governing the
performance of coupling tasks in 4M MC on the behalf and in the
name of Serviced PX consistently with Article 4.1;
“Serviced Party” means a Party not being a PCR Party
participating in the 4M MC by being serviced by the Servicing
PCR Party consistently with Article 4.1;
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
12
“Servicing PCR Party”: means EPEX SPOT SE, the Service Provider
for
coupling services within 4M MC selected independently by (each
of them being a “Serviced Party”) for performing coupling tasks in
4M MC as further specified in Article 6 on their behalf;
“SPOC”: means single point of contact, i.e. the contact
person of a Party for the matter indicated in the Article where
reference is made to the term SPOC;
“TSO(s)”: means Transmission System Operator(s),
parties of 4M MC; “Working Day”: means any calendar day other
than a Saturday,
Sunday or public holidays listed in Annex VI in the country of
the registered office of the Party in charge with the performance
of the relevant obligation;
1.2 Interpretation Rules
1.2.1 No provision of the Agreement shall be interpreted
adversely against a Party solely because that Party was responsible
for drafting that particular provision.
1.2.2 Words denoting the singular shall include the plural and
vice versa. Words denoting one gender shall include another
gender.
1.2.3 The headings of Articles or Annexes are inserted for
convenience only and do not affect their interpretation.
1.2.4 Any reference to any rule, enactment, statutory provision,
regulation or code or any subdivision or provision thereof shall be
construed at the particular time as a reference to the text then in
force, as it may have been amended, modified, consolidated,
re-enacted or replaced.
1.2.5 All references to Articles or Annexes refer to the
corresponding Articles or Annexes of this Agreement as amended,
supplemented or modified from time to time, in accordance with
Article 15.9 unless otherwise specified.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
13
1.2.6 Any Annex attached and referred to in the Agreement forms
an integral and inseparable part of the Agreement. Any reference to
the Agreement includes a reference to its Annexes and vice
versa.
1.2.7 In case 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.
1.3 Hierarchy of 4M MC Agreements
1.3.1 The rights and obligations of the Parties hereof shall
precede the rights and obligations of the Parties arising from the
Master Agreement related to their liability towards each other
unless expressly stated otherwise (e.g. Article 5.4 iii)). For
avoidance of any doubt the Parties expressly state that in case an
equal or corresponding provision exists in the Master Agreement,
then the provisions of the PX-PX Agreement related to their
liability towards each other shall prevail.
1.3.2 The liability of the Parties for breach of their
obligations arising from this Agreement shall be governed and
assessed only and exclusively by this Agreement, especially by its
Article 8.
1.3.3 The extent of the liability limitation included in this
Agreement (especially in Article 8.1.3 hereof) shall not be
affected due to the breach of any valid, effective and applicable
obligation of the Parties other than the obligation arising from
this Agreement.
1.3.4 The Parties expressly state that any of the provisions of
this Article hereof do not affect any rights and/or obligations of
TSOs arising from the Master Agreement. For avoidance of any doubt
with respect to the rights and obligations of the TSOs the
provisions of the Master Agreement have priority.
ARTICLE 2. OBJECT OF THE AGREEMENT 2.1 The purpose of this
Agreement is to set forth the main principles of the
cooperation between the Parties in respect of 4M MC and
particularly the terms and conditions under which 4M MC shall be
performed and operated with respect to the Master Agreement, from
PXs responsibilities point of view.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
14
ARTICLE 3. CONTRACTUAL DOCUMENTS
3.1 The documents constituting the Agreement are:
i) The main text of the Agreement; and
ii) The following Annexes are attached to the Agreement:
a. Annex I HLMD document; b. Annex II High level functional
architecture of PCR (includes
timetable, network/market topology/standard format files); c.
Annex III Operational Procedures; d. Annex IV Change Control
Procedure; e. Annex V Contacts; f. Annex VI List of Public
Holidays; g. Annex VII List of Subcontractors according to Article
4.7.
3.2 No other terms and conditions, including any standard,
general or pre-printed terms and conditions either on the front or
back of any invoice or otherwise made available or referred to by
either Party shall apply to the 4M MC Cooperation under the
Agreement, unless explicitly otherwise agreed in writing by the
Parties.
ARTICLE 4. GENERAL PRINCIPLES AND OBLIGATIONS
4.1 The Parties agree to cooperate to perform and operate 4M MC
on the basis of the following main principles:
i) 4M MC is performed on a daily basis (meaning, for clarity, on
every
Business Day) through the operation of the PCR Market Coupling
System in accordance with the Operational Procedures;
ii) Participation in the 4M MC is based on one of the following
options:
a. A Party may participate directly in the 4M MC as an Operator
or a
Coordinator, which in both cases must be a PCR Party (meaning
being a co-owner of the PCR Assets); or
b. A Party may participate in the 4M MC without being PCR Party
(“Serviced Party”) provided that it requests another PCR Party
(“Servicing PCR Party”) to perform the actions of exercising the
Operator or Coordinator (including MC Operator tasks) roles in the
name and on behalf of such Party. Consistently with Article
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
15
4.7 each Serviced Party shall appoint it´s Servicing PCR Party
in Annex VII.
iii) The operation of the trading platforms of the Parties
participating in
the 4M MC remains the individual responsibility of each Party
and falls outside this Agreement although the operation of such
trading platform, as regards performing operations relevant with
the participation in the 4M MC operational process, must be in
accordance with this Agreement;
iv) The Parties shall perform each of their obligations arising
from the 4M MC Master Agreement and this Agreement and each Party
is fully and individually responsible for performing their
obligations arising from the 4M MC Master Agreement and this
Agreement or their part of obligations in case of obligations
arising from the 4M MC Master Agreement and this Agreement
requiring common participation of more than one Party.
v) The Party shall inform other Parties about any situation
which may
lead to termination of the Master Agreement, this Agreement or
any other agreement with significant effect to 4M MC
Cooperation.
vi) The necessary agreements and arrangements to have cross
border
capacity made available, to ensure the related cross border
shipping for 4M MC and/or to perform tasks under paragraph 4.1 ii).
b of this Article with the TSO(s) / NRA(s) / PCR Party(-ies) or
other third parties are the responsibility of the Parties and falls
outside this Agreement;
vii) The Parties agree that the congestion revenue related to
the cross
border capacity taken into account for 4M MC shall be
reattributed to the TSOs in accordance with applicable Legal
Provisions and the agreements entered into with these TSOs; to this
aim the Parties shall cooperate to provide to the TSOs all
necessary information in accordance with the Master Agreement and
needed to distribute the congestion revenue;
viii) Parties shall coordinate their actions to avoid or
minimize any
damages, fees, penalties or charges that may arise to any Party
out of or in connection with such steps.
ix) Each Party shall ensure maintenance and support of
Individual Assets
and PCR Assets for which it is individually responsible, if any.
If the
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
16
Party participates in the 4M MC according to point 4.1 ii). b,
such party shall ensure maintenance of PCR Assets via the Servicing
PCR Party
x) Parties shall coordinate their actions in case any Party
decides to
initiate early termination procedure described in the service
agreements individually agreed between Party (-ies) and Servicing
PCR Party and/or Master Agreement and/or according to Article 10 of
the present Agreement.
4.2 Best Effort Obligations Obligations of the Parties under
this Agreement are Best Efforts obligations unless explicitly
otherwise specified in writing.
4.3 No joint and several obligations and individual
responsibility The Parties are each liable for their individual
commitments only and do not bear any joint and several obligations,
nor any joint and several liabilities under this Agreement. The
foregoing implies that, except as otherwise expressly provided in
the Agreement, all representations, warranties, undertakings,
agreements, covenants, indemnities and obligations made or given or
entered into by a Party under the Agreement, are assumed severally
by such Party in relation only to itself and the liability of each
of them in respect of any breach shall extend only to any loss or
damage arising from its own breach. Each Party is individually
responsible for ensuring that its participation in the 4M MC
Cooperation is compliant with the Legal Provisions to which its own
business activity is subject.
4.4 Good Faith Cooperation and non-discriminatory treatment The
Parties shall exercise their rights and perform their obligations
under this Agreement in good faith and shall adopt a fair and loyal
treatment towards each other.
4.5 Project Cooperation The 4M MC Cooperation is based on the
fundamental principle of subsidiarity and decentralization, meaning
that, apart from the provisions which are strictly necessary to
coordinate their matching into a price coupling mechanism, each
Party will keep its full independency and self-determination for
its own business.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
17
4.6 Each Party shall perform its obligations under this
Agreement:
i) In compliance with all requirements of the Agreement and all
Legal Provisions applicable to that Party;
ii) In compliance with good practice and good faith, state of
the art and professional standards and trade customs applicable to
this type of obligations during the term of the Agreement;
iii) Within target dates and/or target deadlines specified as
the case may
be under the Agreement;
iv) Using, where appropriate, suitable materials and/or
equipment and trained and competent staff for the execution of its
obligations under the Agreement;
v) With a view to assuring the good implementation of the
Agreement; and
vi) In compliance with any necessary licenses and
authorisations.
4.7 Subcontracting by a Party
4.7.1 Each Party shall be entitled to subcontract part of its
performance (including services provided by Servicing PCR Party as
stipulated in paragraph 4.1 ii). b under the Agreement provided
that:
i) If it concerns the performance under Article 6 (MC operation)
the
other Parties are informed in writing of such subcontracting,
the scope thereof and the identity of the subcontractor three (3)
month prior to the appointment of the subcontractor; and
ii) The subcontractor is bound by and complies with
confidentiality obligations under terms at least equivalent to the
terms set forth in the Agreement.
iii) If it concerns the performance under Article 6 (MC
operation), the list of concerned Party and its Servicing PCR
Parties is attached as Annex VII.
4.7.2 A Party subcontracting part of its performance under the
Agreement shall at all times ensure that the performance by the
subcontractor is in accordance with the terms and conditions of the
Agreement and principles of 4M MC. A Party subcontracting part of
its performance under the Agreement shall at all
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
18
times remain fully responsible and liable towards the other
Parties for the performance of its subcontractor in accordance with
the Agreement and the fulfilment of its obligations under the
Agreement. Especially each Party commits to bind its subcontractor
with confidentiality obligations compliant to this Agreement.
Parties shall cooperate with any of these subcontractors as listed
in Annex VII.
ARTICLE 5. CHANGES TO THE PCR ASSETS AND/OR INDIVIDUAL ASSETS
AND/OR
OPERATIONAL PROCEDURES
5.1 The performing 4M MC is carried out through up-to-date PCR
Assets, Individual Assets and Operational Procedures. This Article
describes the introduction of releases of any system at the
initiative of each of the Parties For the purpose of this Article,
a release should be understood as planned changes of either PMB
and/or EUPHEMIA, and/or Individual Asset(s). New release may
concern: defect fixes and/or change requests, General enhancements
and improvements.
5.2 The rules described in this Article do not concern the hot
bug fixes. However the Parties commit to coordinating the hot bug
fixing.
5.3 In case of new release of PMB and/or Euphemia, and/or PCR
Procedures having impact on operation of PMB and/or Euphemia,
Parties commit to implement it in coordinated manner together with
other coupled areas using PCR.
5.4 Any request for changes by a Party or a subset of the
Parties to any of the PCR Assets and/or Individual Assets and/or
Operational Procedures shall be formulated and handled in
accordance with the Change Control Procedure in compliance with the
following principles: i) In case of changes to PCR Assets, the
Change Control Procedure
applies; ii) In case of changes to Individual Assets, the Change
Control Procedure
solely applies to the extent that such change has an impact on
the 4M MC;
iii) In case of changes to Operational Procedures, the Change
Control Procedure applies. However it is understood that change and
approval through the relevant process of the Master Agreement is
considered as valid change and approval for the purpose of this
Agreement in case of the following procedures:
a. NOR-Pre_Coupling b. NOR-Post_Coupling
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
19
c. BUP-Pre_Coupling d. BUP-Post_Coupling e.
FAL_03-Full_Decoupling
In such case only the process of the Master Agreement
applies
The PCR Parties shall decide on final approval and
implementation of changes to the PCR Assets and the Parties shall
decide on final approval and implementation of changes to the
Individual Assets under the Change Control Procedure. The Parties
shall not object the implementation of changes to the PCR Assets
(new release of PMB and/or Euphemia) provided such change fulfill
all functions necessary for 4M MC and do not have impact on the 4M
MC design and/or fulfillment of Parties´ responsibilities as stated
under Master Agreement.
5.5 Changes to the PCR Assets and Individual Assets shall only
be put into operation for 4M MC after having been duly tested in
accordance with the provisions of the Change Control Procedure and
provided such testing demonstrates compliance with the acceptance
criteria as indicated in the Change Control Procedure, unless the
Party requesting the change demonstrates that the requested change
has no impact on the essential functionalities of the 4M MC.
5.6 Each Party will designate a Local OPSCOM Member (“LOM”) to
represent it in a body (“OPSCOM”) that handles the submission,
approval and coordination of change requests and the implementation
of the requested change and fulfils all other commitments and
responsibilities specified in Article 13. Such representative will
be the SPOC of the corresponding Party for the purpose of the
Change Control Procedure.
5.7 The Parties already acknowledge that the Party(-ies) follow
their own release management within their IT infrastructures:
• s
• s
•
Parties.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
20
It is understood that these releases within Local System are
deemed by the Parties not having an impact on the 4M MC, nor on the
Operational Procedures. For this reason, such releases are not
submitted to the Change Request Procedure. If the releases of the
Party(ies) system(s) could have an impact on the 4M MC and/or on
the Operational Procedures, the Parties have to agree on such
releases in advance and the Party(ies) will follow in this case the
Change Request Procedure.
ARTICLE 6. DAILY OPERATION 4M MC
6.1 Principles
)
.
.
;
;
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
21
;
s
.
e
.
e
2
.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
22
.
.
6.2 Coordinator role
:
:
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
23
;
;
s
;
;
d ;
;
:
;
;
.
6.3 Operator role
:
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
24
;
;
;
;
l
;
6.4 Serviced Party
:
;
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
25
;
;
l
;
6.5 MC Operator
.
.
:
6.6 Appointment of Coordinator
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
26
6.7 Remuneration of the Coordinator
r
.
:
.
.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
27
.
:
g
.
]
:
.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
28
t
.
]
-
-
.
6.8 Processing of personal data
.
6.9 Exchange of Market Data
.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
29
:
)
r
.
6.10 Publication of Market Coupling Results
s
:
;
.
:
r r
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
30
ARTICLE 7. CONFIDENTIALITY
7.1 Non-disclosure
7.1.1 The term “Confidential Information” used in this Agreement
means all information whether or not marked as confidential,
including, but not limited to, slides, studies, Market Data, market
research plans, marketing plans, concepts, designs, test results,
processes, reports, records, findings, financial information,
customer information, know-how, software, computer plans, flow
charts, business plans, etc., directly or indirectly related to the
4M MC Cooperation and any information exchanged between the
Parties, which a Party(ies) provide(s) or give(s) access to either
orally, in writing, in electronic form or in any other form
whatsoever to the other Party(ies).
7.1.2 In respect of Confidential Information, each Party hereby
undertakes that it shall:
i) Not disclose, convey or transfer to any Person other than a
Party to
this Agreement Confidential Information in any form whatsoever
without the express, prior written consent (including email) of the
concerned Party(ies); the concerned Party(ies) shall not withhold
such consent in the context of requesting Party’s transparency
obligation as referred to in this Agreement (unless such obligation
conflicts with other Legal Provisions) and in other cases such
consent shall not unreasonably be withheld or delayed;
ii) Not use the Confidential Information in any way or for any
purpose
other than the performance of its obligations under this
Agreement, unless this is previously and specifically authorized in
writing (including email) by the concerned Party(ies);
iii) Not copy or reproduce Confidential Information in any
form
whatsoever except as may be strictly necessary for the
performance of its obligations under this Agreement;
7.1.3 In the event of any unauthorized use or disclosure of
Confidential Information each Party undertakes that it shall:
i) Immediately notify the other Party(ies) in writing (including
email) and
take all reasonable steps to mitigate any harmful effects the
other Party(ies) may sustain or incur as a result of such a breach
of this Agreement; and
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
31
ii) Indemnify the other Party(ies) in accordance with this
Agreement.
7.1.4 The Parties agree that the obligations assessed by this
Article 7 shall survive the termination for any reason whatsoever
of this Agreement for a term of five (5) years.
7.1.5 In the case of a breach by a Party of any of its
confidentiality obligations under this Agreement, the concerned
Party shall be entitled to cease immediately the disclosure of any
further Confidential Information and to claim compensation for any
damage occurred, according to Article 8.
7.1.6 Without prejudice to Article 8, no Party shall be liable
towards third parties (TSOs, customers etc.) for the information
and/or data provided to any other Party of this Agreement and used
by such Party in relation to the third parties unless otherwise
expressly agreed in a separate written and signed agreement between
the concerned Party and the other Parties.
7.1.7 The rights a Party may have against third parties pursuant
to any other confidentiality agreement shall in no event restrict a
Party’s right to claim damages under Article 8 from the breaching
Party (to the extent that such damages have not yet been recovered
by the claiming Party with the third party).
7.2 Permitted Disclosure
7.2.1 Notwithstanding Article 7.1 a Party may disclose
information it has received in the event one of the following
conditions are met:
i) If it can demonstrate by written evidence that all Parties
have agreed
to such disclosure;
ii) If it can demonstrate by written evidence that the received
information was known to it prior to the disclosure, through no
breach of a confidentiality obligation towards the concerned
Party;
iii) If it can demonstrate by written evidence that the
received
information has come into the public domain through no fault or
negligence of a Party to this Agreement;
iv) Disclosing of information is required in order to comply
with the
applicable national Legal Provisions of the concerned Party or
with a court or administrative order or for the purpose of dispute
settlement according to Article 12.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
32
7.2.2 Each Party shall be entitled to disclose Confidential
Information to its corporate decision-making bodies (e.g. board of
directors, general assembly, supervisory board), officers,
employees, and legal representatives of companies’ under its
Control or of companies that Control such Party (hereafter the
“Internal Representative”), subcontractors, agents, professional
advisors, external consultants and insurers and attorneys-at-law
(hereafter the “External Representative”), only if the following
conditions are met:
a) The Internal Representative or External Representative of a
Party
has a definite need to know such information for the execution
of its assignment which must be strictly related to the performance
of the Agreement. Each Party shall directly assume full
responsibility for any acts of its Internal Representative or
External Representative related to the disclosed Confidential
Information;
b) The Internal Representative and the External Representative
is
informed by the Party of the confidential nature of the
Confidential Information and is bound to respect the confidential
nature of the Confidential Information under terms at least
equivalent to the terms of the Agreement;
c) The necessary procedures and protections must have been
put
into place by the disclosing Party so as to prevent disclosure
and further use of such Confidential Information in the event such
Person is no longer an Internal Representative or External
Representative of the disclosing Party ;
d) Consistently with Article 8 of the Agreement, the disclosing
Party
is and shall at all times remain fully liable for any breach by
an Internal Representative or External Representative of the
confidentiality obligations; and
e) The disclosing Party undertakes to have sufficient procedures
and
protections in place in order to enforce and maintain
confidentiality and prevent any unauthorized use and/or disclosure
of such Confidential Information by its Internal and External
Representatives to whom Confidential Information is disclosed.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
33
7.3 In cases of doubt as to whether information is Confidential
Information or whether Confidential Information may be disclosed
pursuant to this Article, confidentiality shall be maintained until
written confirmation has been obtained from the other Parties that
one of the above exclusions applies.
7.4 Each Party is entitled to disclose at its own initiative
Confidential Information to the NRAs competent on its Own Markets
provided that:
a) such NRA(s) is informed by the Recipient of the
confidential
nature of the Confidential Information and
b) such NRA(s) is bound to respect the confidential nature of
the Confidential Information in accordance with relevant national
legislation;
c) such Confidential Information does not represent opinion or
data of one or several other Parties;
ARTICLE 8. LIABILITY AND FORCE MAJEURE
8.1 General provisions
8.1.1 Unless specifically and expressly stated otherwise in the
Agreement, the Parties shall be liable to each other for damage
that may arise out of or in connection with any Party´s breach of
the Agreement as long as the claimed damage directly results from a
breach by the defaulting Party of its obligations according to the
Agreement which has been causal for the damage suffered by the
claiming Party/Parties.
8.1.2 In case of a breach of any obligation under this
Agreement, the defaulting Party shall be solely liable; there is no
joint and several liability in cases of several defaulting
Parties.
8.1.3 If a specific damage claimed by the Parties and/or by a
TSO(s) with respect to Article 13.3 of Master Agreement is caused
and assignable to two or more of the Parties of this Agreement, the
following rules shall apply:
In case of a claimed damage by the Parties and/or by a TSO(s),
all claimed Parties to this Agreement shall strive to mutually
agree on their actual proportion of individual accountability and
division of liability for damages and send to the claiming Parties
and/or TSO(s) their joint written statement
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
34
containing result of their agreement.
i. In case such joint written statement is not delivered within
15 (fifteen) Working Days from the day the damage was claimed with
the last defaulting Party, each and every claimed Party is liable
towards claiming Parties and/or TSO(s) solely for exactly the equal
share of the damage claimed and shall pay damage individually and
directly to the claiming Party (-ies) and/or TSO(s).
ii. In case such joint written statement is delivered within 15
(fifteen) Working Days from the day the damage was claimed with the
last defaulting Party each and every defaulting Party is liable
towards claiming Parties and/or TSO(s) solely for exactly the
proportion specified in the joint written statement and shall pay
damage individually and directly to the claiming Party (-ies)
and/or TSO(s).
8.1.4 Except specifically provided otherwise, in case of a
breach (whether by act or omission) by a Party(ies) to comply with
any of its obligations under this Agreement, the non-breaching
Party(ies) shall be entitled to claim compensation for all incurred
direct losses, damage, charges, fees or expenses, arising out, or
resulting from such breach to the extent this breach qualifies as
i) fraud ii) intentional misconduct or iii) gross misconduct ,
committed by the liable Party(ies).
8.1.6 Limits to indemnifications obligations i) The Party(ies)
shall not be liable for any incidental, indirect or
consequential damage including, but not limited to loss of
opportunity, loss of goodwill, loss of business, loss of profit,
reputation damage in connection with or arising out this
Agreement.
l
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
35
8.1.7 The Parties are responsible for any action or conduct in
accordance with this Agreement of their employees, assistants,
consultants, contractors, subcontractor, agents and/or any third
parties used for performing the obligations stated under this
Agreement.
8.1.8 If a breach of this Agreement may occur, the Parties shall
take reasonable steps to mitigate the negative consequences of such
breach(es).
8.1.9 In the event of a breach of the commitments of a Party,
Parties shall in first instance decide upon possible measures to be
taken to remedy in kind to the effects of the said breach. The
Party in breach shall be allowed to participate in the
deliberations in this respect, but shall not be entitled to vote in
respect of the measures to be taken. The Party in breach shall be
entitled to reject such remedy if such remedy is not considered
unreasonable meaning the Market Coupling can be performed even
without the remedy or if such remedy is not technical possible.
8.2 Operational Breach
:
7
d
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
36
:
,
)
8.2.3 For the sake of clarity, any breach not qualifying as
Operational Breach shall be governed by Article 8.1.
8.2.4 The liability limitations provided under article 8.2 shall
not apply in the event of fraud or intentional fault/misconduct or
gross negligence of the Defaulting Party.
8.3 Third party claims
8.3.1 As soon as the Defendant Party receives a claim for
damages by a third party it shall notify promptly the other Parties
in writing of any such claim and keep them updated on any response
and defence related to such claim, as reasonably required.
Moreover, the Defaulting Party shall be entitled to join any
discussions or dispute settlement procedure (whether amicable,
judicial or arbitrational) following a third party claim and its
right of defence shall be duly observed by the defendant Party.
8.3.2 All Parties hereby agree that that claims from TSO with
respect to Article 13.3 of Master Agreement shall not be deemed as
Third party claims according to Article 8.4 of this Agreement and
shall be governed by Article 8.1.3 of this Agreement.
8.3.3 Provided that the Defendant Party: a) fully cooperates
with the Defaulting Party in any response and
defence as reasonably required, and
b) does not enter into settlement nor acknowledges the existence
or ground of the third party claim without the prior authorisation
of the Defaulting Party,
the Defaulting Party shall hold harmless the Defendant Party as
follows: a) the Defaulting Party(ies) shall hold harmless the
Defendant Party from
and against any third party claim, only if qualified as direct
damage,
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
37
brought against the Defendant Party, within the limits of
indemnification set forth under Article 8.1.6 and without prejudice
to Article 8.1.,
b) in deviation to a), should the third party claim be based on
an Operational Breach, the Defaulting Party(ies) shall hold
harmless the Defendant Party only in the event of fraud or
intentional fault /misconduct of such Defaulting Party(ies).
8.4 Force Majeure
8.4.1 For the purpose of this Agreement “Force Majeure" shall
mean any sudden and unforeseeable event and/or circumstances which,
or the results of which, are beyond the reasonable control of the
Parties, and which cannot be prevented or overcome with reasonable
foresight and diligence and which, endanger the performance of the
obligations under this Agreement and which cannot be solved by
measures that are, from a technical, financial and/or economic
point of view, reasonably possible for the Parties. The following
events are examples of Force Majeure but only if and to the extent
that they make the fulfilment of an obligation impossible or cause
it to be extremely difficult: including but not limited to natural
disasters, flood, fire, earthquake or epidemic; acts of war
(whether officially declared or not), civil war, curfew, embargo,
boycott, looting, riots, public disorder, terrorist actions and
illegal demonstrations; strike, slow-down of work, occupation of
workplace and similar labour actions, regardless of whether they
are lawful or unlawful.
8.4.2 The Party affected by Force Majeure, shall:
a) Send the others Parties prompt notification in writing
describing the nature of Force Majeure and its probable duration
and the impact on the performance of its obligations under this
Agreement;
b) Endeavour in good faith expeditiously to adopt measures to
mitigate
or cure the circumstances giving rise to the event of Force
Majeure; c) Provide regular (and, in any event, weekly) notices to
the other Party
about its actions and plans for action under paragraph (ii); and
d) Provide prompt notice to the other Party of the termination of
the
event of Force Majeure.
8.4.3 A Party affected by Force Majeure, shall be suspended from
the performance of and liability for its obligations under this
Agreement for so long as, and to the extent that, performance of
such obligations is affected by the event of
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
38
Force Majeure. For so long as and to the extent that the Party
affected by Force Majeure is suspended from performing its
obligations under this Agreement, the other Parties shall also be
entitled to suspend their performance of the obligations that
correspond to the suspended obligations of the Party claiming Force
Majeure.
8.4.4 A Party cannot, under any circumstances, be held
responsible or held liable to pay any compensation for damage
suffered, due to the non-performance or faulty performance of all
or part of its obligations, when such non-performance or faulty
performance is due to a Force Majeure event provided obligations
under Article 8.4.5 are not breached.
8.4.5 The Party, which invokes Force Majeure, shall use its Best
Efforts to limit the consequences and duration of the Force
Majeure.
ARTICLE 9. ENTRY INTO FORCE - TERM
9.1 Entry into Force
9.1.1 This Agreement enters into force as of the date of its
signature by all Parties or, should not all Parties sign on the
same date, on the date of the last Party’s signature.
9.1.2 This Agreement becomes effective and applicable and
Parties start their cooperation according to the Agreement from the
Operational Date.
9.1.3 For clarity, the date of entrance into effectiveness of
the present Agreement shall be no later than the date of entrance
into effectiveness of the Master Agreement. All Parties understand
that the effectiveness of this Agreement prior to or at the latest
the date of entrance into effectiveness of the Master Agreement is
essential for the scope of the 4M MC and therefore they undertake
to make their Best Efforts and act in good faith for the purpose of
executing this Agreement.
9.2 Term
ARTICLE 10. TERMINATION
10.1 Full Termination
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
39
.
:
;
,
10.2 Exit Clause
.
:
r
r
r
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
40
.
.
.
.
10.3 Consequences of termination
.
.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
41
n
.
t
.
.
ARTICLE 11. APPLICABLE LAW
n .
ARTICLE 12. DISPUTE RESOLUTION
12.1 Any dispute arising under, in connection to or in the
framework of the Agreement (including, for the avoidance of doubt,
related to the conclusion of it and its validity) between one or
more Parties (hereafter a “Dispute”) shall be subject to this
Article 12.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
42
12.2 In the event of a Dispute arising between two or more
Parties (the “Disputing Parties”), such Dispute shall first be
subject to amicable settlement between the Disputing Parties, each
represented by their Authorised Representatives or any other Person
with power of representation appointed to this aim by each of the
concerned Disputing Party (the dispute settlement representative,
hereafter “DSR”). To this aim the most diligent Disputing Party
shall notify a written request (“Dispute Settlement Request”) to
the other Disputing Party(ies) containing the following
information:
a) A description of the Dispute; and b) The identification of
the Disputing Party(ies); and c) The scope of the demand(s) or
claim(s) of the Disputing Party(ies) ; and d) The legal basis of
the demand(s) or claim(s).
12.4 Any amicable settlement reached pursuant to this Article
shall only be effective and binding for the Parties to it, provided
it is laid down into a binding written settlement contract, signed
by the Parties participating in the concerned amicable
settlement.
12.5 To the extent permitted by the applicable Legal Provisions,
nothing in this Article shall preclude the Parties from applying
for interim or conservatory measures or any other injunctive relief
in summary proceedings before the competent courts. The application
of a Party to a judicial authority for such measures or for the
implementation of any interim or conservatory measures ordered by
the arbitration tribunal shall not be deemed as an infringement or
a waiver of the arbitration agreement and shall not affect the
relevant powers reserved to the arbitration tribunal. Any order or
provision issued by the judicial authority must be notified without
delay to the arbitrators.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
43
ARTICLE 13. 4M MC PX MANAGEMENT AND GOVERNANCE
13.1 Each party will appoint an LOM whose list is included in
the Annex V.
13.2 The management and monitoring of the Operation will be
organized around two committees:
13.2.1 An Operations Committee;
13.2.2 A PX Steering Committee.
13.3 The decision of Operations Committee and PX Steering
Committee shall be always unanimous.
13.4 Duties of the LOMs and Operation Committee
13.4.1 The duties of the LOMs are to:
- Regularly follow the performance of the Operations by the
Contractor and any upcoming and ongoing change in the Operational
Procedures;
- Report on incidents (when relevant and if not already carried
out within operations committees set-up between the Parties, the
TSOs involved in the 4M MC or/and the Shipping Agent);
- Act as a Local OPSCOM Member (LOM) as defined in Annex
IV.;
- Manage the Change Requests;
- Jointly agree to amend the Change Request Procedure, if needed
during the Term of the Agreement.
13.4.2 The LOMs shall inform themselves about any new
functionality of PMB and EUPHEMIA and any release or migration of
the latter ones.
13.4.3 The OPSCOM consists of all the LOMs appointed by the
Parties. It meets quarterly by any means if not decided by Parties´
representatives differently.
13.4.5 After each meeting, written minutes shall be drafted by
chosen LOM, circulated and approved by all the LOMs or its entitled
representative
13.5 PX Steering Committee
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
44
13.5.1 The PX Steering Committee consists of the LOMs and the
Directors of Operations of the Parties (or his/her equivalent), who
are duly entitled to represent the Parties. The list of the
participants to the PX Steering Committee is set forth in the Annex
V.
13.5.2 The PX Steering Committee assumes, in particular, the
following duties:
- Setting of priorities and decisions on steering the
Operations;
- Assessment of progress and evaluation of potential corrective
measures;
- Management of the risks;
- Decisions on the Change Request Procedure;
- Mediation in the case of disputes between the Parties and
preparation for escalation to the relevant management or
responsible board member.
13.5.3 The PX Steering Committee is chaired by an entitled
representative of the Party. It meets every six months by any means
if not decided by Parties´ representatives differently.
13.5.4 The PX Steering Committee decides also on the Amendment
of Annexes as provided in Article 15.9.2.
13.5.6 After each meeting, written minutes shall be drafted,
circulated and approved by all the participants.
ARTICLE 14. COMMUNICATION
14.1 The Parties shall be free to express written or oral
positions or opinions about all matters related to PX-PX
Cooperation in 4M MC operation in their own name, provided they do
not prejudice or negatively affect the collective and/or individual
interests or the reputation of the other Parties.
14.2 The Parties shall not express positions or opinions in the
name of one or more other Party(ies) unless they have been
explicitly mandated to do so in writing by the other Parties or by
the Authorized Representatives.
14.3 The Parties shall communicate at all times correct and
accurate information.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
45
14.4 The Parties acknowledge the goal to present commonly agreed
positions on the PX-PX Cooperation in 4M MC, but agree that each
Party may present and discuss its own views on the PX-PX
Cooperation in 4M MC with NRAs, ACER, and the European Commission.
In doing so, Parties may use relevant materials developed within
the Agreement regarding project planning and
descriptions/evaluations of options/issues provided Article 7 is
complied with. Such Agreement materials should be used fairly and
without distortion. Parties shall provide to the other Parties
copies of material they intend to use in this context for ACER and
the European Commission at least three (3) Working Days in advance,
and shall amend any references to the Agreement material where
other Parties reasonably can show it may be misleading.
14.5 In the event a communication by a Party does not comply
with this Article 14 the other Parties are entitled to request such
Party to publicly correct its communication, without prejudice to
any other rights or remedies under the Agreement or by law.
14.6 Prior to any joint communication of the Parties regarding a
commonly agreed position on any issue relating to this Agreement,
the PX Steering Committee shall give its formal approval on the
content of such communication. Each joint communication shall bear
the logo of each Party.
14.7 Notwithstanding Parties consent with a contemplated
communication from the other Party (the “Communicating Party”) to
the public, a Party shall bear no liability for any claims or
damages in respect of such communication from the Communicating
Party.
ARTICLE 15. MISCELLANEOUS
15.1 Notices
15.1.1 Except as provided otherwise in the Operational
Procedures for the operational tasks and except as agreed otherwise
between the Parties, all notices, requests, demands, instructions
or other communications under this PX-PX Agreement (hereafter
“Notices”) shall be in writing and served by e-mail.
15.1.2 Notification by e-mail shall be deemed effective at the
time when the e-mail is indicated to the sender as delivered to the
recipient and/or the recipient acknowledges the receipt thereof
provided that, if the Notice is received on a Working Day after 5
p.m. or on a date which is not a Working Day, the Notice shall be
deemed given and effective on the first following day that is a
Working Day.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
46
15.1.3 In case of urgent operational matters as set forth in the
Operational Procedures sent to the operational e-mail address
specified in Annex V, the Notice shall be deemed given and
effective as of the moment of receipt, regardless of the fact
receipt is after 5 p.m. on a Working Day or on a day that is not a
Working Day for the recipient.
15.1.4 In the event of difficulty in using electronic means to
send Notices or other communications under this PX-PX Agreement,
Notices may be served in writing and delivered in person or by
courier or by post, with such service deemed effective on the date
of receipt, unless that date is not a Working Day in which case the
Notice shall be deemed given and effective on the first following
day that is a Working Day.
15.1.5 All Notices shall be addressed to the respective SPOCs of
the Parties set forth in Annex V.
15.1.6 However Notices that relate to operational matters as set
forth in the Operational Procedures shall be addressed to the
respective competent persons referred to in the Operational
Procedures.
15.1.7 Any change of address of a Party must be notified by
e-mail or fax to the other Party, the new address being considered
the official address for purposes of this PX-PX Agreement as from
the third (3rd) Working Day following the indication of delivery of
such e-mail or fax.
15.2 Availability
Consistently with Article 6 and Operational Procedures Parties
shall make relevant people and systems available for MC operation
each calendar day from 8:30 to 15:00.
15.3 Records
Each Party shall maintain records that are complete and accurate
for all the relevant material regarding the performance by it of
all its obligations under this Agreement and each Party shall
retain such records for a period as required under the Legal
Provisions applicable to it with a minimum of three (3) years
unless in conflict with applicable Legal Provisions. On another
Party’s first motivated request, a Party shall provide the other
Parties with a copy of all or part of the records as indicated by
the requesting Parties, if available.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
47
15.4 Recording of telephone conversations
15.4.1 Parties acknowledge and accept that, in the context of
the operation of 4M MC telephone conversations shall be recorded
and may serve as proof respecting applicable Legal Provisions.
15.4.2 Recording of telephone conversations shall be done in
accordance with the applicable Legal Provisions and the Parties
shall cooperate in good faith to ensure such compliance.
15.5 Language The Parties agree that the working language for
all notifications and for all matters relating to their cooperation
under this Agreement, including all operational communications,
shall be English, to the extent compatible with the applicable
provisions of mandatory law, if any.
15.6 No Waiver No waiver of any term, provision or condition of
this Agreement shall be effective except to the extent to which it
is made in writing and signed by the waiving Party. No omission or
delay on the part of any Party in exercising any right, power or
privilege under this Agreement shall operate as a waiver by it of
any right to exercise it in the future or of any other of its
rights under this Agreement. For the avoidance of doubt, if either
Party fails to perform any of its obligations hereunder, and the
other Party fails to enforce the provisions relating thereto, such
Party’s failure to enforce this Agreement shall not prevent its
later enforcement.
15.7 Remedies provided by law The rights and remedies under this
Agreement are cumulative with and not exclusive of any rights and
remedies provided by law.
15.8 Entire Agreement
15.8.1 This Agreement and the Annexes as supplemented in the
performance of this Agreement by the Parties with respect to
Article 15.9, contain the entire agreement related to PX-PX
cooperation of the Parties hereto with respect to the subject
matter hereof and contain everything the Parties have
negotiated
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
48
and agreed upon relating to the same subject matter.
15.8.2 The Parties agree that with regards to the breaches among
PXs of an obligation governed by both Master Agreement and this
Agreement, related to the same subject matter, the Parties shall
act according to this Agreement and the wording of this Agreement
shall prevail.
15.9 Amendment
15.9.1 No amendment or modification of this Agreement shall be
effective and binding unless evidenced in writing and signed by all
the Parties. The consent of all Parties shall not be unreasonably
withheld to a modification proposal.
15.9.2 By deviation to the foregoing, the Parties’
representatives in the PX Steering Committee as indicated in the
Annex 5 shall be entitled to change only the Annex I, II., III.,
IV., VI., VII., provided that such amendment and modification shall
be evidenced in writing and agreed by these representatives in PX
Steering Committee unanimously.
15.9.3 Annex V regarding Contacts may be amended by way of
notification by the concerned Party.
15.9.4 Modifications due to changes in Legal Provisions and/or
regulatory reasons
The Parties expressly agree to review this Agreement if relevant
modifications to Legal Provisions that could impact this Agreement
should emerge. In case changes to Legal Provisions or measures
and/or decisions of administrative or other public authorities – as
far as within the competence of these authorities – require an
amendment or modification of this Agreement, any affected
Party(ies) by this change or measure and/or decision may send a
request for modification of this Agreement to the other Parties
containing:
i) The provisions of the Agreement that are subject to
modification;
ii) The reason why such modification is necessary; and
iii) A proposal of modification of the concerned provisions.
15.9.5 At the latest twenty (20) Working Days after receipt of
the request for
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
49
modification, the Parties shall convene a meeting to consult
each other in respect of the requested modification. The Parties
shall negotiate any modification taking into account the principles
of cooperation as defined in Article 4 of this PX-PX Agreement.
15.9.6 To the extent a Party is not concerned by the change in
Legal Provisions or the measures and/or decisions of administrative
or other public authorities, such Party may refuse to make the
necessary amendments to this PX-PX Agreement by given justified
reasons. In such case, the affected Party(ies) shall inform its
competent regulatory authority to see if execution of this PX-PX
Agreement is still possible without making the necessary
amendments. In case this competent regulatory authority would
object, the affected Parties can apply the Article 12 related to
Dispute Resolution.
15.9.7 In the event an amendment to the PX-PX Agreement is a
consequence of a change in European Legal Provisions or change in
national Legal Provisions stipulated by European Legal Provisions,
the costs thereof shall be shared equally among the Parties.
15.9.8 In the event an amendment to the PX-PX Agreement is a
consequence of a change in national Legal Provisions applicable to
one Party not stipulated by European Legal Provisions, such Party
will bear the costs of such amendment.
15.10 Assignment and legal succession
15.10.1 Neither this PX-PX Agreement nor any rights or
obligations under this PX-PX Agreement shall be assigned or
transferred (including by means of sale, merger, split-off or
transfer or contribution of universality or a branch of activity or
otherwise) by a Party without the prior written consent of the
other Parties unless such assignment or transfer is required under
the applicable Legal Provisions. If the intended assignee or
transferee is i) a subsidiary whose share capital is wholly owned
by one or more Parties such consent shall not be unreasonably
withheld. Such consent is not required when this assignment or
transfer of the PX-PX Agreement is made between Parties.
15.10.2 The Parties’ consent to a third party power exchange
assignee or transferee shall be formalized through the adherence of
such power exchange to this Agreement, as well as to the Master
Agreement by co-signing it or signing a joinder agreement. For the
avoidance of doubt, all rights and obligations of the assignor
under the present Agreement shall be fully transferred to and
assumed by the third party power exchange assignee or transferee.
The adherence of such third party power exchange to the Master
Agreement is a condition precedent to the adherence to this
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
50
Agreement.
15.11 Invalid or Unenforceable Provisions
15.11.1 If any provision of this PX-PX Agreement is determined
by a court and/or tribunal to be invalid, illegal or unenforceable,
or becomes invalid, illegal or unenforceable for any reason, such
provision shall be severed and the remainder of the provisions
hereof shall continue in full force and effect as if this PX-PX
Agreement had been executed with the invalid, illegal or
unenforceable provisions eliminated.
15.11.2 In the event mentioned under Article 15.11.1, the
Parties shall immediately commence good faith negotiations to
remedy such invalidity either through (i) an amendment which may
reflect the purpose of the original provision and, in any case,
best adhere to the overall intent of the Parties on the date hereof
or (ii) a deletion where such modification is not practicable. The
remainder of this PX-PX Agreement shall remain in effect in
accordance with its terms as modified by such modification or
deletion.
15.11.3 If no agreement on the amendment or deletion regarding
such provision shall be reached between the Parties within six (6)
months, or any term agreed upon, each Party can terminate this
PX-PX Agreement by means of a written Notice. For the avoidance of
doubt, in such case, no indemnity against any actual damage or
loss, as direct consequence of the termination, will be due to the
remaining Parties.
15.11.4 The Parties expressly agree that each provision of this
PX-PX Agreement which provides for a limitation of liability,
disclaimer of warranties or exclusion of damages is intended to be
severable and independent from any other provision and to be
enforced as such.
15.12 Intellectual Property rights
15.12.1 If not stated differently in this Agreement, this
Agreement does not grant a Party any rights to, or in, patents,
copyrights, database rights, design rights, trade secrets, trade
names, trademarks (whether registered or unregistered) or licenses
of other Party.
15.12.2 As a principle, everything being created by the
cooperation of the Parties shall be considered as a common property
of the Parties.
This Agreement has been duly executed in four (4) original
copies, each Party acknowledging having received one original
copy.
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
51
Signatory page 1/4 of the 4M MC PX-PX Agreement
For: OTE
Date:
Signature:
ý
Date:
Signature:
c
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
52
Signatory page 2/4 of the 4M MC PX-PX Agreement
For: OKTE
Date:
Signature:
Date:
Signature:
ý
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
53
Signatory page 3/4 of the 4M MC PX-PX Agreement
For: HUPX Ltd.
Date:
Signature:
n
Date:
Signature:
y
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
54
Signatory page 4/4 of the 4M MC PX-PX Agreement
For: OPCOM
Date:
Signature:
u
Date:
Signature:
c
Date:
Signature:
n
-
4M MC PX-PX Agreement
Initial of OTE
Initial of OKTE
Initial of HUPX
Initial of OPCOM
55
ANNEXES
Article 1. INTERPRETATION1.1 Definitions1.2 Interpretation
Rules1.2.1 No provision of the Agreement shall be interpreted
adversely against a Party solely because that Party was responsible
for drafting that particular provision.1.2.2 Words denoting the
singular shall include the plural and vice versa. Words denoting
one gender shall include another gender.1.2.3 The headings of
Articles or Annexes are inserted for convenience only and do not
affect their interpretation.1.2.4 Any reference to any rule,
enactment, statutory provision, regulation or code or any
subdivision or provision thereof shall be construed at the
particular time as a reference to the text then in force, as it may
have been amended, modified, cons...1.2.5 All references to
Articles or Annexes refer to the corresponding Articles or Annexes
of this Agreement as amended, supplemented or modified from time to
time, in accordance with Article 15.9 unless otherwise
specified.1.2.6 Any Annex attached and referred to in the Agreement
forms an integral and inseparable part of the Agreement. Any
reference to the Agreement includes a reference to its Annexes and
vice versa.1.2.7 In case 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.
1.3 Hierarchy of 4M MC Agreements1.3.1 The rights and
obligations of the Parties hereof shall precede the rights and
obligations of the Parties arising from the Master Agreement
related to their liability towards each other unless expressly
stated otherwise (e.g. Article 5.4 iii)). F...1.3.2 The liability
of the Parties for breach of their obligations arising from this
Agreement shall be governed and assessed only and exclusively by
this Agreement, especially by its Article 8.1.3.3 The extent of the
liability limitation included in this Agreement (especially in
Article 8.1.3 hereof) shall not be affected due to the breach of
any valid, effective and applicable obligation of the Parties other
than the obligation arising fro...1.3.4 The Parties expressly state
that any of the provisions of this Article hereof do not affect any
rights and/or obligations of TSOs arising from the Master
Agreement. For avoidance of any doubt with respect to the rights
and obligations of the TSO...
Article 2. OBJECT OF THE AGREEMENT2.1 The purpose of this
Agreement is to set forth the main principles of the cooperation
between the Parties in respect of 4M MC and particularly the terms
and conditions under which 4M MC shall be performed and operated
with respect to the Master Agr...
Article 3. CONTRACTUAL DOCUMENTS3.1 The documents constituting
the Agreement are:3.2 No other terms and conditions, including any
standard, general or pre-printed terms and conditions either on the
front or back of any invoice or otherwise made available or
referred to by either Party shall apply to the 4M MC Cooperation
under the...
Article 4. GENERAL PRINCIPLES AND OBLIGATIONS4.1 The Parties
agree to cooperate to perform and operate 4M MC on the basis of the
following main principles:4.2 Best Effort Obligations4.3 No joint
and several obligations and individual responsibility4.4 Good Faith
Cooperation and non-discriminatory treatment4.5 Project
Cooperation4.6 Each Party shall perform its obligations under this
Agreement:4.7 Subcontracting by a Party4.7.1 Each Party shall be
entitled to subcontract part of its performance (including services
provided by Servicing PCR Party as stipulated in paragraph 4.1 ii).
b under the Agreement provided that:4.7.2 A Party subcontracting
part of its performance under the Agreement shall at all times
ensure that the performance by the subcontractor is in accordance
with the terms and conditions of the Agreement and principles of 4M
MC. A Party subcontractin...
Article 5. CHANGES TO THE PCR ASSETS AND/OR INDIVIDUAL ASSETS
AND/OR OPERATIONAL PROCEDURES5.1 The performing 4M MC is carried
out through up-to-date PCR Assets, Individual Assets and
Operational Procedures. This Article describes the introduction of
releases of any system at the initiative of each of the Parties For
the purpose of this Art...5.2 The rules described in this Article
do not concern the hot bug fixes. However the Parties commit to
coordinating the hot bug fixing.5.3 In case of new release of PMB
and/or Euphemia, and/or PCR Procedures having impact on operation
of PMB and/or Euphemia, Parties commit to implement it in
coordinated manner together with other coupled areas using PCR. For
avoidance of doubt the sa...5.4 Any request for changes by a Party
or a subset of the Parties to any of the PCR Assets and/or
Individual Assets and/or Operational Procedures shall be formulated
and handled in accordance with the Change Control Procedure in
compliance with the fo...5.5 Changes to the PCR Assets and
Individual Assets shall only be put into operation for 4M MC after
having been duly tested in accordance with the provisions of the
Change Control Procedure and provided such testing demonstrates
compliance with the a...5.6 Each Party will designate a Local
OPSCOM Member (“LOM”) to represent it in a body (“OPSCOM”) that
handles the submission, approval and coordination of change
requests and the implementation of the requested change and fulfils
all other commitments...5.7 The Parties already acknowledge that
the Party(-ies) follow their own release management within their IT
infrastructures: At the date of signing OTE implements releases
within its Local Systems every third Tuesday of the month between
17:00 and 22:00. At the date of signing OKTE implements releases
within its Local Systems every Tuesday in the year between 18:30
and 22:00.
Article 6. DAILY OPERATION 4M MC6.1 Principles6.1.1 To enable 4M
MC:6.1.2 To enable the 4M MC, each Party shall ensure that the
Coordinator and Operator are provided on a daily basis in
accordance with the provisions of the Operational Procedures and
according to the standard formats set forth in Annex II with the
fol...6.1.3 Taking into account the information provided pursuant
to Article 6.1.2 the Coordinator, and the Operators, shall
calculate the Market Coupling Results on a daily basis by operating
the PCR Market Coupling System. The Market Coupling Results
prod...6.1.4 In the event of an Incident all Parties and Servicing
PCR Party shall participate in a conference call convened by the
Coordinator (the “Incident Committee Call”) and shall, under the
limitations set forth in the Operational Procedures, apply
th...6.1.5 In the event of an Incident all Parties shall at all
times seek to first find a safe solution that is in accordance with
Operational Procedures.6.1.6 During operation of 4M MC the
Coordinator and the Operator(s) and Serviced Party(ies)
undertake(s) to perform the tasks set forth in Articles 6.2 and 6.3
and 6.4. In the event the Coordinator is not able to perform the
Coordinator role in accord...6.1.7 Since all Parties either
directly or via Servicing PCR Party i) can have access at the same
time to the required information to assess due performance of 4M MC
and have the possibility to intervene to ensure due performance of
4M MC, and ii) hav...6.1.8 Each Party shall, within the timeframe
and according to the modalities indicated in the Operational
Procedures, communicate either directly or via Servicing PCR Party
to the Coordinator and Serviced Party(ies) whether they accept or
reject the M...6.1.9 It is understood between the Parties that in
case of failure of an operation of 4M MC each Party has the right
to Decouple, bearing in mind however that Decoupling shall only
serve as a last resort solution.6.1.10 In case of the rejection,
the PX rejecting the Market Coupling Results or requesting Decouple
shall motivate its decision by indicating reason.6.1.11 Being
reminded that Decoupling shall only serve as a last resort solution
and that satisfactory fall-backs (such as explicit auctions) are
offered, Decoupling in itself shall not be considered as a default
amongst the Parties. To the extent pos...6.1.12 Being reminded that
each PX and/or Servicing PCR Party has the same possibility to get
the ATCs from TSOs (as further described in Operational
Procedures), it is considered that all PXs are equally responsible
for the provision of ATC data to C...
6.2 Coordinator role6.3 Operator role6.4 Serviced Party6.5 MC
Operator6.5.1 For each day a Party acting as Coordinator shall also
perform the tasks of MC Operator.6.5.2 In accordance with the
Operational Procedures the MC Operator tasks can be performed by
any other Party.6.5.3 A Party performing the MC Operator tasks
undertakes:
6.6 Appointment of Coordinator6.6.1 Any Party shall in principle
act as a Coordinator either directly or via Servicing PCR Party on
an equal shared number of days and on a rotating basis.6.6.2 At the
time of entry into force of the Agreement the Parties indicate in
the Coordinator Rotational Scheme for each Operational day which
Party shall act as Coordinator either directly or via Servicing PCR
Party in accordance with the Operationa...
6.7 Remuneration of the Coordinator6.7.1 As Parties agreed to
act in the role of a Coordinator (including MC Operator tasks) as
well as of Operator on an equal shared number of days and on a
ro