General Conditions of Data Use
Applicable to EPEX SPOT information Products
Date: 1st February 2022
The following General Conditions shall apply to purchases of Information Product on www.epexspot.com or webshop.eex-group.com (the "Website") or any other mean, and to any form of Information Product Usage.
By purchasing any Information Product, you agree to be bound by these General Conditions, which shall be supplemented by Specific Conditions, to be entered into either via the Website or any other written or electronical mean. Specific Conditions may only deviate from the General Conditions to the extent expressly provided in these General Conditions. Therefore, the General Conditions shall have precedence over the Specific Conditions except for the provisions in the General Conditions where it is expressly provided that the Specific Conditions may deviate. In the same vain, the Specific Conditions shall have precedence over their annexes. In case of inconsistency between one or several provisions in the contractual document of the same rank or between successive versions of one contractual document, the most recent document will prevail.
The Information Products are provided by EPEX SPOT SE, a European company incorporated and existing under the laws of France, having its registered offices at 5, Boulevard Montmartre, F-75002 Paris, and with Commercial Register in Paris n° 508 010 501 or its subsidiaries (hereinafter referred to as “EPEX SPOT” or “EPEX”).
In these General Conditions, the terms "we", "us" and "our" refer to EPEX SPOT and "you" refers to you, the user of the Website, as Contracting Party having subscribed EPEX SPOT Information Product on this Website or any other mean and, the case may be, entered into Specific Conditions (hereinafter referred to as “Contracting Party”).
EPEX SPOT and the Contracting Party shall be individually referred to as “Party" and collectively as "Parties".
In these General Conditions, the terms "we", "us" and "our" refer to EPEX SPOT and "you" refers to you, the user of the Website, as Contracting Party having subscribed EPEX SPOT Information Product on this Website or any other mean and, the case may be, entered into Specific Conditions (hereinafter referred to as “Contracting Party”).
EPEX SPOT and the Contracting Party shall be individually referred to as “Party" and collectively as "Parties".
Electronic identification which enables a specific Individual to access Licensed Information Product and which simultaneously represents a Unit of Count.
Account which allows a representative of the Contracting Party to purchase Information Products.
Third-party company which is directly or indirectly controlled by the relevant party, which directly or indirectly controls the relevant party or which is jointly directly or indirectly controlled, together with the relevant party, by the same parent company. With regards to the Contracting Party, it means any entity directly or indirectly Controlling, Controlled by or under common Control with the Contracting Party (including its successors and assigns).
Application Programmable Interface, i.e. a communication channel based on formatted standardized messages to be used by the Contracting Party in order to send or retrieve Data from M7 or ETS. As an interface, it has to be linked to Application(s) developed by the Contracting Party.
Software program to be developed at its own option by the Contracting Party or any other third party, enabling it to access and to give access to the API.
Inspection of the Contracting Party or its Subscriber(s) to ensure full compliance with their obligations.
Continuous update of Information Product without manual input by the User being necessary.
Recap of the categories of EPEX SPOT Information Products that can be purchased by the Contracting Party, as defined under Annex 1 and updated from time to time by EPEX SPOT.
Conformance test to be performed pursuant to the rules of EPEX SPOT for the access to the Test and Development Environment.
The Party registered in the Account for the purchase of Information Products. It shall be a legal entity acting within the scope of its activities.
The situation where a company:
- Directly or indirectly owns a fraction of the capital in another company that gives a majority of the voting rights at such company's general meetings;
- Holds alone a majority of the voting rights in a company by virtue of an agreement entered into with other partners or shareholders and this is not contrary to such company's interests;
- Effectively determines the decisions taken at a company’s general meetings through the voting rights it holds;
- Has the power to appoint or dismiss the majority of the members of a company's administrative, management or supervisory structures;
- Directly or indirectly holds a fraction of the voting rights above 40% of a company and no other partner or shareholder directly or indirectly holds a fraction larger than this participation
- In any case, an undertaking is presumed to control a company when it exerts a decisive influence over it. The decisive influence is defined according to the organizational, economic and legal links between both undertakings.
Market for the Transactions made on the day before the Delivery up until the gate closure time for nomination defined by the relevant TSOs of the respective Delivery Area.
Data Fees or Fixed Fees
Remuneration which is charged to the Contracting Party in accordance with the provisions of the Agreement.
Injection or withdrawal of electricity on a Delivery Area according to the Transactions made on EPEX SPOT.
Power Transmission System managed by a TSO.
Dissemination Usage or External Usage
The use of Information Product for the onward dissemination to Users or any other external usage, irrespective of whether the onward dissemination occurred without authorization or by mistake. Therefore, a usage of Information Product shall even then exist when the Contracting Party or Subscriber, as the case may be, has no knowledge of the onward dissemination.
Derived Usage Information Product or Derived Information Product
Data created or derived by the Contracting Party or any other User from the Information Product, which does not display the Information Product and from which the underlying Information Product cannot be readily extracted. Derived Usage shall not be considered Information Product hereunder.
Data terminal which enables the receipt and/or the reproduction of Information Product.
Information Product which is available for use with a time delay of more than 15 minutes after its creation. This corresponds to Information Product provided by EPEX SPOT via its API and delivered more than 15 minutes after its creation by EPEX SPOT.
Delayed Information Product
Consist of Delayed Data and End of Day Data
Distribution License Fees or Variable Fees
Remuneration which is charged to the Contracting Party in accordance with the provisions of the Agreement for the license to onward disseminate Information Products.
In order of priority, (i) the signature date of the Specific Conditions by the Contracting Party or (ii) the purchase of the Information Product and the acceptance of the General Conditions by the Contracting Party via the Website or any other mean.
End of availability of the Information Product(s) purchased as specified in the Catalogue and/or the Order Recap during the order process; in case of multiple Information Products, it will be the end of availability of the most recent one.
End of Day Data
Information Product delivered (i) at the end of the trading session for the Day- Ahead Auction market (ETS) and (ii) the end of the trading day for the Intraday Continuous spot market as provided via FTP Access or other mean.
Entitlement for Access IDs to receive Information Products.
Entitlement-System or Specification
Electronic system via which Access IDs are entitled and which further continuously controls for each Access ID and each Device the actual Entitlement to Information Products and which provides complete records hereon.
EPEX SPOT Information Product
End of Day Data, Delayed Data, Real Time Data, Historical Data, Day Ahead Auction – SMS Alert, View Only Use; and any other Information Product available on the Website or any other mean.
EPEX SPOT Markets
All the markets operated by EPEX SPOT
Day-Ahead Auction Electronic Trading System.
The fee to be paid to EPEX SPOT in compensation for of the use of Licensed Information Product.
Market Data until the 31 December of the previous year(s).
Binding written or electronic statement supplied by the Subscriber(s) to the Contracting Party. This statement contains the number of Access IDs per Licensed Information Product.
Any individual person and/or or employee of a business entity who has access to the Licensed Information Product.
Information Product or Product
Quotes, prices, turnover figures, indices and other data marketed by EPEX SPOT. Data created or derived from Information Product is still deemed to be Information Product if (i) the quotes, prices, turnover figures, indices or other data originally marketed by EPEX SPOT can be determined through calculation or automated process and/or (ii) the alteration is formed in a way that the derived data can be used instead of the quotes, prices, turnover figures, indices or other data originally marketed by EPEX SPOT (i.e. as substitute). In case of doubt, EPEX SPOT determines at its sole discretion whether such data is Information Product within the meaning of (i) and/or (ii) above.
Information Product Supplier
Vendor, including EPEX SPOT, from which the Contracting Party, or a Subscriber receives Information Product.
Information Product Usage
The use of Information Product for Internal or External Usage, in each case irrespective of whether such usage occurred without authorization or by mistake. Therefore, a usage of Information Product shall even exist when the User, as the case may be, has no knowledge of the usage.
The use of Information Product takes place internally if the Information Product is exclusively used by the recipient of the Information Product concerned itself or its employees without any external onward dissemination to third parties or any other external usage.
Intraday Market (IDM)
Market for Transactions made after the gate closure time for nomination defined by the relevant TSOs of the respective Delivery Area and until the end of the trading session.
Independent Software Vendors
The access granted by EPEX SPOT to ISV to Test and Development Environment under the terms of the relevant Specific Conditions.
Licensed Information Product
Scope of right of use on Information Product and Information Product Usage granted to the Contracting Party as specified in the Market Data Agreement.
Place at which Access IDs are entitled for Information Products (address).
Intraday Continuous Market Trading System on Spot Market.
M7 Historical Orders
The record of hourly, 15-minute or blocks anonymized orders of the Intraday Continuous Spot Market.
Market Data Agreement or Agreement
Consists of the signed Specific Conditions, these General Conditions and the Order Recap, including all annexes attached thereto and amendments.
A breach that reaches to the fundamental aim of the Market Data Agreement’s subject matter and negatively affects the outcome of the Market Data Agreement.
Entities having signed a trading agreement with EPEX SPOT and thus allowed to trade on EPEX SPOT Market(s).
As defined under Article 4 of the General Data Protection Regulation (EU) 2016/679 ("GDPR"), any data relating to an identified or identifiable single individual enabling his identification, directly or indirectly through personal items, including among others, IP address, name, birth date, residence address, registration/filling/number, either private or public, phone number, biometric references, picture, profession, marital status etc.
Page on the Website or any other mean showing the recap of the order of Information Product at the end of the order process.
Physical User ID
Unit of Count by which the access of a User of the Contracting Party to Information Product received via one or several Access IDs can be reported.
Power Transmission System
Very high voltage grid managed by a TSO.
Any intellectual property right throughout the world, in all media, now existing or created in the future, for all versions and elements, in any languages, and for the entire duration of such rights, arising under any applicable law, contract, or otherwise, and whether or not registered, registerable or perfected, including, but not limited to (a) rights in all inventions, discoveries, utility models, patents, reissues of and re-examined patents, or patent applications (wherever filed and wherever issued, including continuations, continuations-in-part, substitutes, and divisions of such applications and all priority rights resulting from such applications) now existing or hereafter filed, issued or acquired; (b) rights associated with works of authorship, including database rights, copyrights, moral rights, copyright applications, copyright registrations, synchronization rights, mask work rights, applications and registrations; (c) rights in computer software and programs, source codes, or business methods; (d) rights in materials; (e) rights associated with trademarks, service marks, trade names, internet domain names, logos, trade dress and the applications for registration and the registrations thereof; (f) rights relating to the protection of trade secrets, know-how and/or other confidential Information Product; (g) design rights, whether registered or unregistered; (h) sui generis right on databases (“Intellectual Property Rights”) and any other (property) rights and/or legal protection by law, regulation or contract such as, but not exclusively, protection granted through unfair competition legislation.
Real Time Data
Information Product which is available for use with a time delay of less than 15 minutes after its creation. This corresponds to Information Product provided by EPEX SPOT via its API and delivered less than 15 minutes after its creation by EPEX SPOT.
Electronic transmission of Information Product relevant for the invoicing which the Contracting Party is required to perform.
Access to EPEX SPOT Information Product, including API and/or ISV granted by EPEX SPOT to the Contracting Party once purchased on the Website or by any other mean.
External service provider who/which provide services to the Contracting Party and shall then comply with the obligation as under this Agreement.
The specific terms and conditions to be entered into between EPEX SPOT and the Contracting Party for the provision of certain Information Product to the Contracting Party. They may contain the following annexes, per order of precedence: Annex I: List of Licensed Information Product and Fee, Annex II: Contact details, Annex III: List of Users or Members or Subscribers.
Spot Market Data
Information Product from the EPEX SPOT Spot Intraday Continuous and/or Day-Ahead Market.
IU Subscriber or Subscriber
Contracting Party of the Vendor or of EPEX SPOT which receives Information Product for Internal Usage.
Test Market Data
Information Product (including orders, transactions, position, collateral, etc.) on the Test and Development Environment available for the ISV. The data sets available for ISV are backdated and/or limited.
Test and Development Environment
IT EPEX SPOT environments for testing the application to be developed by the ISV.
Third-Party Rights' Holder
Third-party legal entity which owns the original copyrights and other intellectual property rights to specific Information Product.
The electronic trading system used by Members for trading at EPEX SPOT Market(s) (namely M7 for the Intraday Market and ETS for the Day-Ahead Market).
Contract agreed on EPEX SPOT for which the procedures and specifications are defined in the Rules and Regulations.
Transmission System Operator (TSO)
Entity in charge of operating the Power Transmission System of a given Delivery Area.
Unit of Count
Billing unit for Data Fees in accordance with the terms of the Market Data Agreement.
Any entity or person who/which has access to Information Product irrespective of whether such access occurred without authorization or by mistake (e.g Subscribers, Affiliated Companies, Individual, Service Providers or any other third party). This means any company, organization or individual that has access to the Information Product, however the mean. The lowercase term “user” in the Agreement shall be deemed to be a reference to “User”.
Contracting Party of EPEX SPOT which onward disseminates Information Product to Subscribers or uses it for any other External Usage.
Vendor Service Agreement
An agreement between the Contracting Party and its Subscribers which governs the use of Licensed Information Product.
View Only Use
Access to live Information Product via the M7 trading platform.
Offering of products and services of the Contracting Party of EPEX SPOT with the name, logo, brand and/or layout of a third party.
2. General provisions
2.1. Eligibility to purchase Information Product from this Website - Account
You do not have to register to explore the Website, but you have to create an Account to purchase Information Products through it, to be provided with EPEX SPOT Services. By creating an Account, you can identify your company, register authorized Users and store payments methods, but also enter into the Market Data Agreement with EPEX SPOT, which is essential for you to purchase EPEX SPOT Information Product. It will also make your checkout easier and faster, enable you to review your order history and edit billing or company information.
When you register or make purchases through the Website, you will be required to provide certain information including name, phone number and e-mail address. You will also be required to provide valid details of a credit or debit card (or such other payment mechanism as is permitted by these General Conditions) which you are legally entitled to use. We reserve the right to request additional evidence or proof of billing information where we think this is necessary. You warrant that all information you provide to us at any time is true, accurate and complete.
By placing an order through this Website, you warrant that you are at least eighteen (18) years old and that you are capable of entering into legally binding contracts on your behalf or on behalf of your company.
2.2. Basket and Wish List
The Basket holds the Information Products you have selected to purchase while browsing the Website. Information Products you place in your Basket will remain there until you purchase them, remove them or move them to your Wish List, if any. They will remain there even after you leave the Website, unless they are no more available before you complete your purchase; in which case, they will be automatically removed from your Basket.
Your Wish List, if any, allows you to store details of Information Products that you are thinking about purchasing. This feature saves your selections even after you leave the Website, making it easy to relocate and purchase them in the future. Information Products will remain in your Wish List until they are moved to your Basket or removed.
2.3. Making a purchase/Conclusion of the Market Data Agreement
In order to purchase Information Products using this Website, you must add it them to your Basket and then indicate that you wish to purchase that Information Product by proceeding to the Checkout section of the Website and entering the relevant information where instructed. You will be provided with an opportunity to review your order, check the total price of your order and the information you have provided and correct any input errors before confirming your purchase. Finally, you will have to confirm that you have read and agree with these General Conditions and depending on the type of Information Product selected, sign online or on paper the related Specific Conditions and provide them to EPEX SPOT.
Once you have submitted your order, we will send an email to the email address you have provided, acknowledging receipt of your order and setting out details of the ordered Information Product(s). This email does not constitute an acceptance of your order - only a confirmation that we have received it. Once we have acknowledged receipt of your order, we will check that the Information Product(s) is/are available.
The Information Product on this Website does not constitute a binding offer to sell Information Products described on the Website. The Market Data Agreement between us will be concluded when you accept and/or sign the General and/or Specific Conditions, and effective as of the Effective Date when we confirm you per email that the order was successfully paid, the Market Data Agreement signed and the Information Product(s) available to be delivered to you.
When we e-mail you the confirmation that your Information Product has been delivered, we may attach an electronic invoice in respect of your order, which will also be available in Your Account section. Please note that we do not issue paper invoices.
In the event that the Information Product you have ordered is unavailable, we will inform you of this within seven (7) days of receiving your order and payment. We will, where possible, give you the option to order a different Information Product of the same type or alternatively, to cancel your order. Should you opt to cancel your order, a full refund will be made.
2.4. Our right to refuse or cancel an order
We reserve the right at any time after receipt of your order to decline it, or any part thereof, in our sole discretion, even after your receipt of an order confirmation or after payment. If we cancel after payment, we will refund it to you.
You may not purchase any Information Product from this Website for any other use not specified in the Market Data Agreement. We shall be entitled to cancel any order placed by you that we believe has been made for a purpose other than the ones specified in the Market Data Agreement. In such event, we reserve the right to refuse or cancel all subsequent orders from you. We also reserve the right to reject orders from any customer with whom we have an ongoing legal dispute regarding a prior order. We may cancel any order if we suspect any fraudulent activity and may refuse to process orders from customers with a previous fraudulent order history.
2.5. Prices and Guarantee
All prices shown on this Website are in Euros and exclusive of sales tax at the applicable rate.
The price of the Information Products may vary on the sole discretion of EPEX SPOT or upon bilateral agreement of the Parties, according to the terms of the Market Data Agreement.
From time to time, we may offer certain promotions for eligible purchases or eligible customers. Please ensure that you read the terms of the promotion and enter any applicable Promotional Code on the Payment Page or the Order Recap. If your Promotional Code qualifies, your deduction will be displayed in the payment summary. Please note that we reserve the right to cancel orders in the event that an unauthorized Promotional Code is used. A Promotional Code cannot be applied retrospectively to orders that have already been placed.
If an error is discovered in the price of any Information Product you have ordered prior to our delivery it to you, we will: (i) where the correct price is lower, refund you the difference or reduce the balance of the price payable to us; or, (ii) where the correct price is higher, contact you and offer you the option to either confirm your order at the correct price or cancel your order. We do not have an obligation to provide any Information Product to you at a lower price where we have made a pricing error and we notify you of the error before we have dispatched your order.
2.6. Payment methods
Full payment is required to complete the order and before it can be delivered to you. We may accept the following payment methods:
- Visa Credit, Visa Debit, Visa Electron, Master Card Credit, Master Card Debit, American Express, JCB and Paypal.
- Bank transfer to the bank account details mentioned in the (pro format) invoice.
In the event that the sum due from you for your order cannot be debited or charged for whatever reason, your order will be cancelled. By making an offer to purchase our Information Products, you authorize us, to the extent permitted by applicable law, to perform credit and anti-fraud checks on you and the payment mechanism that you have provided. These checks may be required, amongst other things, to authenticate your identity, to validate your credit or debit card, to obtain an initial credit or debit card authorization and/or to authorize individual purchases. You authorize us to disclose information provided by you, including personal information, to third parties such as banks and the providers of credit reports for the purposes of these checks, and acknowledge that such parties may keep a record of that information. You further agree and acknowledge that we may make the information we receive from such checks available to third parties including fraud prevention and credit reference agencies. We reserve the right to put in place additional payment security systems from time to time.
We will prosecute any fraudulent activities relating to any attempt to reverse or seek a refund of a valid charge for an order that has been properly fulfilled and delivered to you.
2.7. Order tracking and delivery
Once the payment of your order has been confirmed, we endeavor to put the Information Product(s) at your disposal on the dedicated Specification (Website, FTP or any other mean) or perform the Service within five (5) to ten (10) working days of confirming your order (working days exclude Saturdays, Sundays and Public holidays).
Once your order is placed, we will send an e-mail confirming the details. Your Order History on the Website lists the current status of all orders, including pending and cancelled ones. You may check your order status through the Order History area of Your Account or the Track Your Orders option.
We require a signature for all Information Products purchased using this Website or any other mean, either by (e-)accepting the General Conditions or (e-) signing the Specific Conditions.
3. Information Product and Licensed Information Product
3.1. Definition and scope
3.1.1. You shall select the usage of the Information Product during the ordering process, by filling a questionnaire. It will be also reflected in the Market Data Agreement It must also be specified as of when the Fee for use of this Licensed Information Product shall commence. By default, it will be the Effective Date. The Information Product chosen by you will be licensed and become subject matter of the Market Data Agreement upon confirmation by us per e-mail.
3.1.2. Subject to the Information Product chosen in accordance with Section 3.1.1, which you get access to during the term of the Market Data Agreement, you are herewith granted a right of use of the Licensed Information Product summarized in the Catalogue, as well as a worldwide, non-exclusive and non-transferable Information Product Usage right of :
a) Internal Usage in unchanged format;
b) External Usage:
1) dissemination to:
i Subscribers and Service Providers for an exclusive Internal Usage;
ii Your Affiliated Companies which in turn use the Licensed Information Product for Internal Usage and shall sign Specific Conditions with EPEX SPOT;
iii Affiliated Companies of the Subscriber(s) which in turn use the Licensed Information Product for Internal Usage.
2) Internet/TV Broadcasting, display on a website, publicity, consultancy, commercial reports, indexation for billing purposes or any other External Usage, without this list being exhaustive.
c) Derived Usage by :
3) Affiliated Companies;
4) Service Providers.
The use of the Licensed Information Product includes, subject to the limitation provided by the Market Data Agreement , the right to store, edit, process, alter, manipulate, translate, package, distribute the provided Licensed Information Product and prepare and distribute Derived Information Product.
3.2. Usage of Licensed Information Product
3.2.1. Licensed Information Product chosen in accordance with Section 3.1.1 determines the scope of the Information Product and Information Product Usage granted to you.
3.2.2. Licensed Information Product can be used or disseminated by/to the Contracting Party, Subscribers, Affiliated Companies and Service Providers, in accordance with Section 3.1.1 which determines the scope and subject to Articles 4.2. The Users, the case may be, shall be registered in Your Account section and the case may be, mentioned in the Specific Conditions.
3.2.3. Any Information Product Usage not referred in Section 3.1.2 is strictly forbidden unless express prior written consent of EPEX SPOT is granted. In particular, including but not limited to Derived Usage, the Market Data Agreement does not create any right for you or any User, to use the Information Product to create any tradable financial product listed on an exchange or any index (i.e. any numerical representation of the value or volatility of a market or market sector calculated from time to time on a standard basis, in order to reflect movements in the underlying constituents) to be used as reference price underlying such tradable financial products nor any other Index as defined by the Benchmark Regulation EU 2016/1011. You shall reflect in written this obligation in your contracts or relationship with Users.
3.2.4. Upon termination of the Market Data Agreement, you and your Users, shall no longer use the Licensed Information Product in any manner.
3.2.5. Specific to External Usage of Licensed Information Product with Affiliated Companies
22.214.171.124. You shall notify EPEX SPOT via the Website or any other written or electronical mean of your Affiliated Companies with details as to companies’ details (name, addresses, number of registrations, place of registration) and Internet addresses (URLs). This may be registered in Your Account section. Changes to Affiliated Companies shall be submitted promptly and, in any event, new Affiliated Companies shall be notified before the commencement of the dissemination of Information Products to them.
126.96.36.199. Please notice that Affiliated Companies not notified to EPEX SPOT shall be treated like Subscribers.
For the Affiliated Companies of the Contracting Party, the provisions of the Market Data Agreement shall apply mutatis mutandis and they shall sign Specific Conditions with EPEX SPOT as well.
3.2.6. Specific to External Usage of Licensed Information Product with Service Providers
188.8.131.52. For the avoidance of doubt, the Service Provider may only access the Licensed Information Product for the strict purpose and for the duration needed for the performance of its obligations. All services and/or products provided via a Service Provider shall be clearly branded as services and/ or products of the Contracting Party or an Affiliated Company of the Contracting Party, covered by this Market Data Agreement. Service Providers are not allowed to distribute Licensed Information Product under their own logo, brand and/or name, not even in the form of co-branding together with your logo, brand and/or your name.
184.108.40.206. The External Usage of Licensed Information Product with Service Providers is permitted only if EPEX SPOT has expressly approved it via the Website or any other written or electronical mean. You shall in this regard provide EPEX SPOT with details as to companies’ details (name, addresses, number of registration, place of registration), Internet addresses (URLs) and the services rendered by the Service Providers to you or your Users. The details may also be registered in Your Account section and the case may be, in the Market Data Agreement. Changes to Service Providers shall be submitted promptly, the case may be, give raise to an amendment to the Market Data Agreement and in any event, new Service Providers shall be submitted before the dissemination of Licensed Information Product to them.
3.3. Rights on the Information Product
3.3.1. You agree and procure that third party to whom Information Product have been directly or indirectly provided acknowledge that EPEX SPOT has sole ownership, right and control of all Property Rights regarding those Information Product which do not originate from Third-Party Rights' Holders .
3.3.2. You further agree and procure that third party to whom Information Product have been directly or indirectly provided acknowledge that the Property Rights to Information Product originating from Third-Party Rights' Holders belong to the relevant Third-Party Rights' Holders and that EPEX SPOT has the distribution rights to such Information Product.
3.3.3. Neither the Market Data Agreement nor the disclosure, access or use of any Information Product shall affect the Property Rights or be construed as granting any Property Rights on the Information Product to the Contracting Party or any other User.
3.3.4. For the avoidance of doubt, the Property Rights in any Derived Usage created by the Contracting Party or any other User, to the extent allowed pursuant to Article 3.1 and compliant with Article 4.2, will rest with the creator of the Derived Usage.
3.4.1. When distributing the Licensed Information Product (in particular within the course of marketing measures), you shall name EPEX SPOT as the source of the Information Product as far as technically feasible, and as a minimum the reference: “Source: EPEX SPOT SE”). A clearly visible reference to an accordingly designed footnote will be sufficient in this respect.
You shall ensure that the use of the Licensed Information Product by you and your Subscribers shall be in a manner which ensures that EPEX SPOT is named as the source where information is displayed, and as a minimum: “Source: EPEX SPOT SE”). A clearly visible reference to an accordingly designed footnote will be sufficient in this respect.
4. Rights, obligations, warranties and liabilities of the Parties and other Users
4.1. Rights and obligations of EPEX SPOT
4.1.1. Obligations of EPEX SPOT regarding the provision of Services
220.127.116.11. We shall use reasonable efforts (i) to ensure that the Information Product made available to you, as well as the Services provided to you have been and will continue to be developed with due care and skill in a professional manner and is accurate, current and complete and that the sources of the Information Product are reliable and (ii) promptly correct or complete any errors or omissions we may be aware of and then retransmit the corrected or completed Information Product to you and (iii) to ensure that the Information Product will continue to be provided to at least the same standard in terms of quality, quantity and timeliness as at the date when it was formally accepted by you as meeting the coverage, timeliness, accuracy levels and specifications as agreed between us.
18.104.22.168. We shall provide you with Information Product of as good quality and quantity (including, but not limited to, in terms of consistency, accuracy, timeliness and comprehensiveness) as the Information Product we make available to other third parties having access to the same Information Product as you.
22.214.171.124. We reserve the right to interrupt or suspend the provision of the Information Product, at any time, due to technical reasons. We also reserve the rights to temporarily reduce or suspend your access to the Information Product without any prior notification, provided that we have legitimate grounds to deem such action necessary to ensure the continuity and/or security of our services and activity or in case of exceptional circumstances. In this event, we will notify you as soon as possible.
126.96.36.199. In the same vain, we also reserve the right to modify, reduce or extend the scope of contents and the format of the Information Products provided, including through our API. If the change is a major change as per Article 6.2.1, we shall provide you at least sixty (60) days prior written notice. However, where a major change is required to ensure the continuity and/or security of our API, services and activity or in case of exceptional circumstances, we may not provide you any notice.
We shall not be liable for any delay or failure in transmission and / or receipt of Information Products via our API.
188.8.131.52. EPEX SPOT shall be entitled to carry out an Audit at the Contracting Party, its Affiliated Companies and Service Providers, White Labelling partner as well as Subscriber of Real-time Information Product for purposes of the verification of compliance to the Market Data Agreement and in particular the remuneration of the Information Product Usage and the technical infrastructure. You shall be obliged to ensure that EPEX SPOT or the Auditors instructed by us, as the case may be, receive access to the relevant documents and the technical infrastructure at your site or the site of your Service Provider, as well as the sites of the Subscriber of Real-time Information Product. EPEX SPOT may additionally request you with documents as well as electronic data files for the purpose of further examination which you undertake to provide.
184.108.40.206. The aforementioned Audit right of EPEX SPOT remains for a time period of two (2) years after termination of the Market Data Agreement. You have to ensure that EPEX SPOT may exercise its Audit right also at the Service Providers, the Subscribers for Real-time Information Product during a period of at least two (2) years after (a) termination of the Market Data Agreement or (b) an earlier termination of the service agreement with the relevant Service Provider or the Vendor Service Agreement with the relevant Subscriber, as the case may be.
220.127.116.11. Notwithstanding any other rights under the Market Data Agreement, if you refuse the conduct of a duly announced Audit and, therefore, fail to comply with your obligations under Section 4.1.2, or if you, in spite of a written demand by EPEX SPOT or one of its instructed Auditors, do not (i) provide access to certain relevant documents (e.g. Honesty Statements) or technical infrastructure (e.g. Entitlement System) at your site or the site of your Service Providers, White Labelling partners or Subscribers of Real-time Information Product, or do not (ii) deliver requested relevant documents or electronic data files, EPEX SPOT shall, until the due performance of the obligations, deriving from Section 4.1.2, at its choice, be entitled to:
a) preliminarily estimate an assumed supplementary payment on the basis of appropriate criteria (e.g. reports of the past or reports by comparable companies, as the case may be) in accordance with its reasonably exercised discretion and invoice such estimate as an on-account payment; and/or
b) suspend the delivery of Information Product or the license for the Information Product Usage until the proper compliance with the obligations under Section 4.1.2; and/or
c) to make the continuation of the Market Data Agreement subject to the payment of reasonable costs due.
18.104.22.168. As far as the documents or the technical infrastructure necessary, as the case may be, for the correct determination of the billing basis do not exist at the Contracting Party, its Service Providers, White Labelling partners or Subscribers of Real-time Information Product, as the case may be, EPEX SPOT shall have the rights under Section 4.2.4 mutatis mutandis.
4.2. Rights and obligations of the Contracting Party and other Users
4.2.1. Rights and obligations related to the External Usage of Information Product
The Contracting Party shall:
(i) ensure the External Usage of Licensed Information Product with Subscribers is subject to the conclusion of a binding Vendor Service Agreement between the Contracting Party and the relevant Subscriber. Such Vendor Service Agreement shall:
a. be concluded in writing;
b. ensure that the rights granted on the Licensed Information Product is not extended;
c. contain the restriction of this Section 4.2.1.
(ii) procure that all Users comply with their obligations under the Market Data Agreement and in particular the Contracting Party shall:
a. ensure that its Users may take notice from all changes to the Market Data Agreement which are relevant to them before such changes enter into effect;
b. maintain effective control mechanisms for the prevention of unauthorized use of Information Product by Users;
c. should a User use Information Product in an unauthorized manner, the Contracting Party shall notify EPEX SPOT thereof immediately and shall ensure by taking appropriate measures (if necessary by suspending the supply of Information Product) that the unauthorized use of Information Product ceases immediately, at the latest within 30 days as of knowledge thereof. In the case of extraordinary grave violations, EPEX SPOT shall be entitled to demand an immediate cessation of the Information Product supply to the User in question and seek Contracting Party liability;
d. upon reasonable notice from EPEX SPOT, the Contracting Party will use commercially reasonable efforts to assist the persons designated by EPEX SPOT with performing an Audit of User Locations as permitted by the Vendor Service Agreement between the Contracting Party and such User;
e. on behalf of EPEX SPOT, the Contracting Party will assess and collect from any User that does not have a direct agreement with EPEX SPOT, any fees, interest, damages and penalties to be due to EPEX SPOT from non-compliant User (including any sums deriving from such third party’s agreements with the Contracting Party) on account of such User non-compliant reception, use or retransmission of Product; and
(iii) upon request from EPEX SPOT, stop to redistribute the Product to User.
4.2.2. Honesty Statements and Declaration of Compliance
22.214.171.124. As far as due to technical reasons you do not maintain a reliable electronic Entitlement System for the tracking and administration of all Access IDs entitled at your Subscribers, the Honesty Statements to be requested by you are of material importance. Honesty Statements belong, in particular, to the essential administrative measures within the meaning of Section 4.2.4 by which you shall ensure in your business and the business of your Subscribers that the correct number of entitled Access IDs can be reported to EPEX SPOT, if requested.
126.96.36.199. You shall at least on a quarterly basis, request from the relevant Subscribers, Honesty Statements confirming the number of Access IDs entitled for the individual Information Products. If the entitlement of an Access ID commences or ceases during the period which is covered by the Honesty Statement (quarter or month), then the commencement or finish date shall be shown in the Honesty Statement and taken into account in the Reporting. The Subscribers shall provide you with the Honesty Statements until the 15th day of the month following the end of a quarter, so that the Honesty Statements can be taken into account in the monthly report for the last month of the quarter. The correctness of the Honesty Statements is to be checked by you by appropriate measures. The measures of control carried out by you shall be documented.
188.8.131.52. EPEX SPOT shall retain the right to request from you to the de-entitlement of those Subscribers which have failed more than once within a calendar year to comply with the deadline for submitting the Honesty Statements as is set out in Section 184.108.40.206 above. For this purpose, you shall notify EPEX SPOT about any repeated exceeding of the deadline, if requested.
220.127.116.11. EPEX SPOT shall be entitled to request from you at any time, also outside a formal Audit, the submission of Honesty Statements as well as the documentation regarding the measures of control carried out in accordance with Section 18.104.22.168 above. For this purpose, you shall provide EPEX SPOT upon request at least with copies of the Honesty Statements and the documents regarding the checks of their correctness.
22.214.171.124. If EPEX SPOT has gained knowledge (e.g. within the course of an Audit) that you fail to request Honesty Statements in accordance with the stipulations in Sections 126.96.36.199 and 188.8.131.52 above and/or to control the correctness of the Honesty Statements by appropriate measures in accordance with Section 184.108.40.206 above, EPEX SPOT shall until the implementation of a proper process for the request and control of the Honesty Statements at its choice be entitled:
a) to preliminarily estimate the remuneration to be paid (including remuneration to be paid retroactively for the past) on the basis of appropriate criteria (e.g. reports of other companies which are comparable with respect to the number of employees, turnover figures and other key figures) in accordance with its reasonably exercised discretion and to invoice the remuneration so estimated; and/or
b) to suspend delivery of Information Product or the license for the Information Product Usage; and/or
c) to make the continuation of the Market Data Agreement dependent upon the payment of reasonable corresponding costs for an Audit (full amount or advance); and/or
d) to make the continuation of the Market Data Agreement dependent upon the direct conclusion of Market Data Agreements with certain or all of your Subscribers.
220.127.116.11. The right to terminate the Market Data Agreement with as well as without notice in accordance with Section 5.1.6 shall remain unaffected.
18.104.22.168. Moreover, the External Usage of Licensed Information Product may also be subject to the signature by the Subscribers and Service Providers of a Compliance Declaration according to which they commit to make use of the Licensed Information Product according to the terms of the Market Data Agreement. The above-mentioned rights and obligations of the Parties will then also apply to the Declaration of Compliance.
22.214.171.124. Both Honesty Statements and Declaration of Compliance, if any, shall be registered in Your Account section and/or provided to EPEX SPOT via the Website or any other written or electronic mean.
4.2.3. Remuneration and Units of Count
126.96.36.199. You undertake to pay the remuneration in accordance with the price stated either on the Website or in the Market Data Agreement, according to the Product Catalogue recap (“Catalogue”) in Annex. These prices, as well as the content of this Catalogue, may be modified from time to time by EPEX SPOT. As far as the payment of the remuneration by you is subject to Value Added Tax, the statutory Value Added Tax shall be deemed added to the remuneration set out in the Market Data Agreement. The remuneration is due without any deduction of taxes (e.g. withholding tax or others) and shall exclusively apply for the relationship between EPEX SPOT and you for the purpose of the Market Data Agreement. It does not represent a guideline or recommendation for the fees which you agree in turn with your Subscribers. You shall be completely free regarding your price structure.
188.8.131.52. The Fee includes the Data Fees and the Distribution License Fees, if any, which will be charged from you as of the Effective Date according to the Catalogue and the terms of the Market Data Agreement, either during the ordering process (upfront payment) or upon receipt of invoices.
184.108.40.206. Unless provided otherwise in the Specific Conditions, access to Real-time Information Product may be controlled and recorded for the Reporting by one of the following Units of Count, when available:
a) Access ID
A netted Reporting of Access IDs for one or several Information Product Suppliers shall not be permitted. The sharing of an unique Access ID amongst several Users is not permitted. The use of a unique Access ID for more than one Device (simultaneous access) shall be allowed if:
i) regardless of a real use of these accesses, any further potential access is reported accordingly with the appropriate number and paid; or
ii) the User cannot access Licensed Information Product via more than one Device simultaneously due to technical reasons; or
iii) the Contracting Party directly reports the Internal Usage of the Information Product in question to EPEX SPOT and ensures by specific administrative regulations for the Internal Usage of Information Product (e.g. within compliance policies or other rules with labor sanctions) that only the User registered under the respective Access ID has access to Licensed Information Product. Such a netting via multiple accesses is permitted for the Internal Usage by the Contracting Party only and is not available for its Subscribers. EPEX SPOT shall be entitled to request from you at any time, also outside a formal Audit, the documentation regarding the aforementioned regulations.
b) Single Quote
c) Physical User ID
The Physical User ID allows a summarized Reporting of the Entitlement of Information Product received from one or several Information Product Suppliers per User (netting), even if the access to the Information Product for the User concerned is entitled via several Access IDs. Such netting via one or several Information Product Suppliers is permitted only for the Internal Usage of the Contracting Party and is not available for Subscribers which have not entered into a Market Data Agreement with EPEX SPOT. The use of Physical User IDs as Unit of Count which enables a netting via several Information Product Suppliers triggers specific Data Fees in accordance with the Specific Conditions You have to choose in advance via the Website, or any other written or electronical mean whether the Reporting of your Internal Usage shall be made on the basis of Physical User IDs or on the basis of Access IDs. A Reporting on the basis of Physical User IDs requires prior approval by EPEX SPOT. Within the course of the approval process, you shall, inter alia, submit a test Reporting with specifications on the Information Product Suppliers, Subscriber Codes, the number of Physical User IDs, the netting process and the market data management system employed for the netting. Moreover, during the approval process, EPEX SPOT shall be granted the opportunity to inspect on-site the netting process of the Contracting Party and the market data management system employed for the netting.
After the approval by EPEX SPOT of the Reporting of the Internal Usage on the basis of Physical User IDs, EPEX SPOT will notify the Information Product Suppliers about such Reporting.
As the Reporting and payment is directly performed by you, the Information Product Suppliers shall use specific Product Codes for the Reporting of your Internal Usage. Such specific Subscriber Codes will not trigger any Data Fees.
If you choose a Reporting of your Internal Usage on the basis of Physical User IDs and EPEX SPOT accepts it, such decision shall apply to your entire Internal Usage of all Information Products. You will then no longer be allowed to report parts of your Internal Usage (e.g. regarding certain Information Products) on the basis of Access IDs. Exempt from this is the Internal Usage on the basis of Access IDs “without automatic update” which shall be respectively reported and paid additively. A change of the Reporting of the Contracting Party's Internal Usage back to Access IDs as Unit of Count is only possible via the Website or any other written or electronical mean upon 60 days’ notice with effect to the end of a calendar month. Such change will again cover your entire Internal Usage of all Information Products.
d) Any other Unit of Count as specified in the Market Data Agreement.
220.127.116.11. The Fee shall be paid according to the terms of the Catalogue and before delivery of the Information Product or performance of the Service. In any case, all invoices shall be due and payable immediately within thirty (30) days. If the amounts invoiced are not paid in full within the due date mentioned in the related invoice, the due amounts are increased, by right and without the need for a formal notice to pay, by a one-time recovery fees of forty (40) Euros and any additional recovery costs as duly documented, in addition to interests for late payments, applicable for each day after the due date, at a rate equal three (3) times the legally chargeable interest rate (article. L.441-3 of the French Commercial Code). These recovery fees and interests for late payments are due as from the day following the due payment date mentioned on the invoices. The right of EPEX SPOT to obtain further compensation for further default damages shall remain unaffected.
18.104.22.168. Moreover, if, after the expiration of the 30 days’ deadline, you fail to pay an outstanding invoice within a further deadline of 14 days set or not in a written demand for payment, EPEX SPOT shall at its choice be entitled to:
a) suspend the supply of the Licensed Information Product or the license for the Information Product Usage, as the case may be, until all outstanding invoices are settled in full, and/or
b) terminate the Market Data Agreement for cause under Section 5.1.6 shall remain unaffected.
22.214.171.124. The remuneration specified in the Market Data Agreement may be amended by EPEX SPOT unilaterally, without limitation, in the following cases:
a) the content of the Licensed Information Product has been expanded;
b) the value of the Licensed Information Product has increased;
c) the costs for making the Information Products available have increased;
d) the structure of the remuneration for the Information Products shall be changed partially or in total; or
e) an adaptation of the remuneration is necessary in order to adapt the fee level of EPEX SPOT to the respective fee level of other international exchanges or other comparable Information Product suppliers and Information Product providers.
126.96.36.199. Adjustments of the Fee shall be made by EPEX SPOT according to its reasonably exercised discretion, taking adequately into account your legitimate interests. Fee changes will be announced with at least 60 days’ notice. Unilateral changes of the Fee by EPEX SPOT not falling under the cases listed above shall entitle you to terminate with 30 days’ notice the Information Products affected or, alternatively, the entire Market Data Agreement, effective at the time the unilateral Fee changes take effect.
188.8.131.52. When disseminating Real-time Information Product, you shall ensure by appropriate technical and administrative measures in your business and the business of your Subscribers that the real number of the relevant Units of Count (e.g. the entitled Access IDs, the allocated Physical User IDs and/or the single quotes) supplied by you can be reported to EPEX SPOT.
184.108.40.206. Your ability to prepare proper, that means, in particular, correct and complete, reports is a condition precedent for the conclusion of the Market Data Agreement and is to be proven upon request by EPEX SPOT any time. As far as EPEX SPOT has gained knowledge (e.g. within the frame of an Audit) that you fail to maintain the necessary technical and administrative requisites for a proper Reporting, EPEX SPOT shall at its choice be entitled, without limitation nor prejudice to any other rights EPEX SPOT may be entitled to under the Market Data Agreement or law, to:
a) preliminarily estimate the remuneration to be paid (including remuneration to be paid retroactively for the past) on the basis of appropriate criteria (e.g. reports of comparable other companies) in accordance with its reasonably exercised discretion and to invoice the remuneration so estimated; and/or
b) suspend delivery of Information Product or the license for the Information Product Usage until a proper Reporting has been established; and/or
c) make the continuation of the Market Data Agreement dependent upon the payment of reasonable costs (full amount of advance) for an Audit; and/or
d) make the continuation of the Market Data Agreement dependent upon the direct conclusion of Market Data Agreements with all or certain of your Subscribers; and/ or
e) prohibit the Reporting of the Internal Usage on the basis of Physical User IDs;
f) the right to terminate the Market Data Agreement with as well as without notice in accordance with Section 5.1.6 shall remain unaffected.
220.127.116.11. The Contracting Party may also report its own Internal Usage of the Licensed Information Product in form of entitled Access IDs (or, subject to the requirements in Section 18.104.22.168 c), on the basis of the Physical User IDs), except for the Usage of the Information Product by the Contracting Party for purposes of the development, operation, testing and quality control of the systems employed for the External Usage of the Information Product. Such exception from the Reporting obligation is not available for the Subscribers, i.e. regarding the Subscribers also the Internal Usage of the Information Product for purposes of the development, operation, testing and quality control of the systems employed is always to be reported.
22.214.171.124. You shall electronically transmit to EPEX SPOT, including via the Website or any other written or electronical mean, the monthly Reporting figures by the 15th day of the consecutive month (“Reporting Deadline”). The Reporting obligation under Section 4.2.4 is fulfilled only if the Reporting is carried out correctly so that EPEX SPOT can automatically process the Reporting figures. In the case of late delivery of the Reporting figures, EPEX SPOT shall be entitled, without any reminder, to charge for the period of delay interest on the remuneration resulting from the Reporting at the rate set under section 126.96.36.199 above. The right of EPEX SPOT to the compensation of further damages resulting from default shall remain unaffected. Corrections to the reports which lead to lower variable fees are possible only within six (6) months after the Reporting deadline within the meaning of the first sentence.
188.8.131.52. You shall report in case of a billing per Access ID or Physical User ID the number of all entitled Access IDs or of all allocated Physical User IDs, as the case may be, irrespective of its actual use and in case of a billing per single quotes the number of all single quotes.
184.108.40.206. If you have not transmitted the outstanding report until the end of the month following the Reporting Deadline, EPEX SPOT shall at its choice be entitled to:
a) preliminarily estimate the remuneration to be paid on the basis of appropriate criteria in accordance with its reasonably exercised discretion and to invoice the remuneration so estimated as a payment made in advance; and/or
b) suspend delivery of Information Product or the license for the Information Product Usage until the proper delivery of the outstanding reports; and/or
c) make the continuation of the Market Data Agreement dependent upon the payment of reasonable costs (full amount of advance) for an Audit;
d) the right to terminate the Market Data Agreement without notice under Section 5.1.6 shall remain unaffected.
220.127.116.11. The documents and data files as well as the records produced by the Entitlement Systems employed which are important for the Reporting and the Audits shall be retained by you for a minimum of five (5) years and must be made available to EPEX SPOT in the event of an Audit. You shall further ensure that also the Subscribers for Real-time Information Product and Service Providers retain the documents and data files as well as the records produced by the Entitlement Systems employed which are important for Audits for a minimum of five (5) years and make them available in the event of an Audit.
18.104.22.168. In the event of incorrect or incomplete representations in the Reporting, in particular regarding the Entitlement, as well as in the event of missing reports in spite of a Reporting obligation on your part, the remuneration missed by EPEX SPOT due to the improper Reporting shall be paid retroactively. In this regard, EPEX SPOT shall be entitled to demand interest pursuant to Section 22.214.171.124 as of that point in time when interest would have accrued in the case of correct Reporting.
126.96.36.199. In the case of incorrect or incomplete representations made willfully or gross negligently in the reports, in particular regarding the Entitlement, or in the case of a willful or gross negligent failure to report in spite of a Reporting obligation on your part, EPEX SPOT shall be entitled to charge an exceptional fee in addition to the remuneration to be paid retroactively in accordance with Section 188.8.131.52, which shall at maximum equal the remuneration to be paid retroactively including interest.
4.2.5. Other Obligations of the Contracting Party
184.108.40.206. At the request of EPEX SPOT, you shall provide us with an overview of your company, in particular regarding the object, corporate structure, experience in the fields of data dissemination and data security, and the hardware and software used (including user administration, Entitlement System and security concepts). With regards to the information given to EPEX SPOT by you, the confidentiality obligation of EPEX SPOT deriving from Section 4.3 shall apply in full.
220.127.116.11. You are strictly advised to validate the accuracy and the completeness of the Information Product delivered via an automated data validation system.
18.104.22.168. You are responsible for the compliance of your application with the technical requirements, Specifications and rules set forth by EPEX SPOT. Therefore, you acknowledge and agree that in any case and pursuant to your obligation to ensure the proper functioning of the EPEX SPOT Markets, we reserve the right to deny or limit the access of any Member or User to the Trading System, API or any other Information Product through an application which could endanger their stability. The access to the application or any update of the application developed or used by you shall be subject to the successful Conformance Test. Upon successful Conformance Test of your application by EPEX SPOT (i.e. your application complies with our technical requirements), we will inform you that your application is authorized to access the EPEX SPOT Markets, Trading System, API or any other Information Product.
22.214.171.124. In providing Members with access to EPEX SPOT Markets through your application, you shall ensure that each Member has access only to the EPEX SPOT Market segment it has subscribed at EPEX SPOT. With regards to Information Product, which is transmitted electronically, you shall be responsible for making sure that you or the Member fulfil the required technical preconditions for receipt thereof at any time. EPEX SPOT may not be held liable for any malfunctions or failures of transmission which are attributable to a lack of compliance with your technical preconditions.
4.2.6. Obligations of the Users
(i) Shall not use Information Product to create any tradable financial product listed on an exchange or any index (i.e. any numerical representation of the value or volatility of a market or market sector calculated from time to time on a standard basis, in order to reflect movements in the underlying constituents) to be used as reference price underlying such tradable financial products nor any other Index as defined by the Benchmark Regulation EU 2016/1011;
(ii) Shall not have any Property Right on the Information Product;
(iii) May be requested to sign the Declaration of Compliance referred to under Section 4.2.2, prior to the use of Information Product.
4.3. Confidentiality and data protection
4.3.1. The Parties shall keep confidential all Information Product and information, whether or not marked as confidential, including but not limited to Test Market Data, presentations, individual assets, financial information, software, directly or indirectly related to the Market Data Agreement and exchanged in the framework of its negotiation or implementation, unless:
a) Such Information Product and information has become public knowledge otherwise than in breach of the Market Data Agreement;
b) to the extent disclosure is ordered by a state, provincial or federal agency, authority, court or tribunal of competent jurisdiction, including a securities regulatory authority, provided that such Party gives prompt notice to the other Party, if legally permitted
c) disclosure is made in confidence to their professional advisors or service providers (who are subject to confidentiality obligations); or
d) as far as solely General Conditions are concerned, disclosure is made to Users and Authorized Distributors relating to such Users’ and Authorized Distributors’ receipt and/or use of Information Product.
e) These Information Product shall also be treated as “trade secrets” according to the Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business Information Product (trade secrets) against their unlawful acquisition, use and disclosure, and the transposing French Law LOI n° 2018-670 du 30 juillet 2018 relative à la protection du secret des affaires, which the Contracting Party and Users also commit to comply with.
4.3.2. Save as provided above, disclosure may only be made with the prior written consent of the other Party. In particular it is agreed that (i) Information Product is not considered as confidential Information Product under the Market Data Agreement and (ii) all Information Product and Data provided by or relating to the Contracting Party and its Authorized Distributors and Users of which EPEX SPOT may become aware during the term of the Market Data Agreement shall be treated as confidential.
4.4. Intellectual Property Rights
4.4.1. Any Intellectual Property Rights in the Services which form the subject of the Agreement shall remain EPEX SPOT’s property. In particular, EPEX SPOT have sole exclusive rights and control over all SPOT Market Data.
4.4.2. A right of use regarding the Information Product provided may be granted in the Agreement.
4.4.3. The Agreement does not involve the transfer of any Intellectual Property Rights to the Contracting Party, even regarding the information we share with you (including but not limited to software specification and Test Market Data). Your right of use regarding that information is only granted within the limit and under the condition established by the Agreement. For the avoidance of doubt however, the Intellectual Property Rights in any Derived Information Product created by the Contracting Party or by a User, to the extent allowed by the Agreement, will rest with the creator of the Derived Information Product.
4.4.4. In respect of rights of the Contracting Party or any User to create Derived Information Product, the Agreement does not create any tradable financial product listed on an exchange or any index (i.e. any numerical representation of the value or volatility of a market or market sector calculated from time to time on a standard basis, in order to reflect movements in the underlying constituents) to be used as reference price underlying such tradable financial products without entering into a specific agreement with EPEX SPOT. The Contracting Party shall include such a provision in agreements with Users and Authorized Distributors and make them aware of the provisions of this Section 4.4.4.
In order to protect the trade secrets and other Intellectual Property Rights of EPEX SPOT, you warrant that you will not reverse engineer, disassemble, or otherwise attempt to derive the source code from of any system put at your disposal.
4.5. Warranties and liabilities of the Parties
4.5.1. We do not provide any guarantee with regards to the fact that the Information Product which is updated on a Realtime basis is made available at a given point in time, complete or free of errors. Under certain circumstances, there might be delays in the transmission of the Information Product. We may not be held liable for any delays or failures of transmission and / or receipt.
4.5.2. Without prejudice to other provisions of the Market Data Agreement, we (a) do not accept any liability for the accuracy, the completeness, correctness and timeliness of the Information Product, including partial or complete unavailability of the Trading System or the access to the Test Market Data and (b) cannot guarantee that the Information Product will be provided without interruption and with complete availability.
4.5.3. The Information Product is exclusively made available for the purpose of Information Product and do not constitute any investment counselling. None of the Information Product establishes an offer to sell or advertisement regarding offers for the purchase of Products which are traded on the exchange.
4.5.4. We shall not be held liable toward you or any of your client using the application developed by you for any losses, damages, costs or expenses arising from such use of the application, including, but not limited to, loss of profits, loss of use, direct, indirect, special, punitive, exemplary, incidental, consequential loss or damages. In the same vain, we shall not be held liable for damage unless such have been caused by Material Breach, intentional misconduct, fraud or gross negligence on our part.
4.5.5. Notwithstanding your liability to pay the Fee, our aggregated liability towards you shall not exceed the total amount of the Fee collected by us over a one-year period.
4.5.6. Neither Party will be liable in contract or tort or otherwise for:
a) any indirect, consequential or special losses, even if such Party has been advised of the possibility of such indirect, consequential or special losses; or
b) any acts or omissions of third parties, including but not limited to Users, except as provided under Sections 4.4.3 and 4.4.5. Notwithstanding the forgoing, it being agreed that acts or omissions of your Affiliated Companies, advisors, Service Providers and other third parties dully authorized by you, shall be considered as acts or omissions performed by you.
4.5.7. Each Party represents, warrants and covenants that it has the legal right and full power and authority to execute and perform its obligations under the Market Data Agreement and to grant all rights and licenses granted by it under and in accordance with the terms of the Market Data Agreement.
4.5.8. We represent, warrant and covenant that the Services and the use or access of the Services in accordance with the Agreement does not and will not infringe any Intellectual Property Right or rights of privacy of any third party. Upon notice of any claim related thereto, or, if in our reasonable opinion, such a claim is likely, we will have the right, at our option, to : (a) procure your right to continue to use the Information Product; (b) modify the Information Product so that it becomes non-infringing; or (c) remove the affected Information Product.
4.5.9. However, in case the Licensed Information Product does not originate from us but from Third-Party Rights' Holders, we have no opportunity to review the correctness of the Information Product and cannot ensure the timeliness and completeness of the delivery of such Information Product. Therefore, we do not assume any liability for the correctness, completeness and timely dissemination of such Information Product.
4.5.10. By entering into the Market Data Agreement, you do not enter into any contractual relationship with Third-Party Rights' Holders; thus, you have neither statutory nor contractual claims for damages against them. As a matter of precaution, we both agree that the limitation of liability above shall apply to their benefit mutatis mutandis.
4.5.11. Damage claims of the Contracting Party shall become time-barred after two (2) years as far as the Specific Conditions do not provide for a shorter period and the claims do not derive from an injury of life, body, health or freedom or from willful intent. The deadline shall commence at the end of that year within which the claim has arisen, and you have gained knowledge about the circumstances constituting the claim and the identity of the debtor or without gross negligence could have gained knowledge.
5. Term, termination and changes to the Market Data Agreement
5.1. Term and termination
5.1.1. The Market Data Agreement comes into force on the Effective Date, upon signing either on paper or electronically via the Website. This also covers any amendment thereto.
5.1.2. Should your Market Data Agreement not contain Specific Conditions, to be effective, you just need to accept the General Conditions at your initial connection to the Website and/or during the order process. Should your Market Data Agreement contain Specific Conditions, to be effective, they need to be accepted and signed by you either on paper or electronically via the Website. Only natural persons, duly authorized by you, and thus acting as your representatives, can connect to the Website, purchase Product(s), and sign, either electronically or on paper, Market Data Agreement, including accepting these General Conditions. In this regard, you have to provide us with a list of authorized representatives, duly signed by a legal representative of your company. This list has to be updated on a regular basis and registered on Your Account section.
5.1.3. Once signed, the Market Data Agreement runs for the duration of the Product(s) purchased. It can be terminated by either Party with 60 days’ notice with effect as per the End Date .
5.1.4. You shall be entitled to terminate individual Information Products with 60 days’ written notice, with effect as per the End Date. This may give raise to, the case may be, an amendment to the Market Data Agreement. In case that after a partial termination in accordance with the first sentence there remains no Licensed Information Product, the partial termination shall be deemed as a termination of the entire Market Data Agreement.
5.1.5. We shall be entitled with 60 days’ notice with effect as per the End Date to terminate individual contractual services, in particular Information Products, if such contractual services are ceased in total or materially modified. In the case of such partial termination of the Market Data Agreement by us, you shall in turn be entitled to terminate with 30 days’ notice the entire Market Data Agreement, effective at the time at which the partial termination by us becomes effective.
5.1.6. Moreover, each Party shall be entitled to terminate the Market Data Agreement for cause without notice period, in total or in part, regarding certain Information Products and/or types of use. A cause shall, in particular, deem to exist for EPEX SPOT if you, with or without prior written warning:
a) again makes incorrect statements on the invoicing basis; or
b) does not stop the violation of other material provisions of the Market Data Agreement within a deadline of at least 30 days set in the warning.
5.1.7. Any notice of termination shall be submitted in writing and the notice shall be sent by registered mail, courier, service or electronically using an acknowledged signature procedure, including via the Website, and registered in Your Account section; templates of termination notice may also be available there.
5.1.8. Should the Market Data Agreement only consists of these General Conditions, to terminate it, you just need to agree with its termination by ticking the corresponding box on the Website and validate.
The Fee is not refundable upon termination of the Market Data Agreement by the Contracting Party for any reason or in case of breach of the Market Data Agreement.
5.2.1. The Market Data Agreement may be unilaterally changed by EPEX SPOT. In case of material changes, you shall be informed at least 90 days before the change‘s effective date, in written or electronic form, including via the Website. Material unilateral changes of the Market Data Agreement by EPEX SPOT shall entitle you to terminate with 30 days’ notice from the change‘s effective date, the Licensed Information Product affected.
5.2.2. Information Product and Information Product Usage may be changed unilaterally by EPEX SPOT, conditional upon you being given at least 60 days’ notice of the changes in written or electronic form, including via the Website. Unilateral changes of the Information Product or Information Product Usage shall entitle you to terminate with 30 days’ notice from the change’s effective date, the Licensed Information Product affected.
5.2.3. The Fee may be changed unilaterally by EPEX SPOT, conditional upon you being given at least 60 days’ notice of the changes in written or electronic form, including via the Website. Unilateral changes of the Fee shall entitle you to terminate with 30 days’ notice from the change’s effective date, the Licensed Information Product affected, except if it falls under the exceptions listed under Section 126.96.36.199. In such case, the termination condition of Section 5.1.3 shall apply.
5.2.4. Whenever the written form under this Market Data Agreement is required for declarations, such declarations may also be transmitted electronically using an acknowledged signature procedure or via the Website.
6. Other provisions
6.1. Force Majeure
6.1.1. Neither Party shall be responsible for delays or failures in performance resulting from any acts, situation or events beyond the reasonable control of such Party and not due to a default of the affected Party, which cannot be reasonably avoided or overcome, and which makes it impossible for such Party to fulfil temporarily or permanently, its obligations hereunder in accordance with the terms of the Market Data Agreement.
6.1.2. These events include, but are not limited to, natural disasters (storms, floods, weather damage, etc.), fires, total or partial labor strikes, epidemics, transport blocking, computer breakdowns, telecommunications disruptions, computer viruses, international attacks of “hackers” on the computer systems, system unavailability, order of the government or a third party, or any other event not within the reasonable control of either Party to the Agreement.
6.1.3. Any Force majeure event a Party is affected thereby must be notified, whether final or temporary, to the other party and may raise to the termination of the Agreement as provided for under Section 5.1.6.
6.2. Transfer of rights and obligations under the Market Data Agreement
6.2.1. Except as otherwise provided under the Specific Conditions, each assignment or transfer of your rights and obligations deriving from the Market Data Agreement shall require our prior written consent.
6.2.2. Any request for a transfer or assignment of your rights and obligations deriving from the Market Data Agreement must feature the relevant Information Product (name of the company, registered office and number, representative, contact details) about the transferee as well as its commitment to fulfil all the obligations arising out of the Market Data Agreement.
6.2.3. We shall be entitled to transfer this Market Data Agreement with all rights and obligations deriving from it to any third party and we shall therefore be released from all our obligations under this Market Data Agreement.
6.2.4. The invalidity or unenforceability of individual provisions or an omission of the Market Data Agreement shall not affect the validity of the remaining provisions. An appropriate legally permissible provision shall apply in place of the invalid or unenforceable provision which corresponds as closely as possible to the economic content of the invalid or unenforceable provision. In the case of an omission, a provision shall apply which corresponds to that which the Parties intended or would have intended had they been aware of the omission.
Each Party is entitled to appoint any subcontractor, provided, for you, a prior written notice to us. You shall remain fully responsible and accountable for the compliance of your service provider(s) or any other subcontractors with the terms of the Market Data Agreement.
6.4. Relationship between the Parties
Nothing in the Market Data Agreement shall be deemed to create a partnership or agency relationship between the Parties and each of them should be considered an independent contracting Party.
6.5. Applicable Law / Legal venue
6.5.1. The Market Data Agreement is governed by French law, to the exclusion of the conflict of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply hereto.
6.5.2. All disputes arising out of or in connection with the validity, interpretation, performance, non-performance or termination of the Agreement shall be submitted to the CMAP (Centre for Mediation and Arbitration of Paris, Paris Chamber of Commerce and Industry - 39, avenue Franklin D. Roosevelt, 75008 Paris) Rules of Mediation) and, in the event that no settlement is thereby reached, to the Paris Mediation and Arbitration Centre (CMAP) Rules of Arbitration, to which the Parties undertake to adhere, by three arbitrators appointed in accordance with the said Rules. The arbitration shall be conducted in English.
6.5.3. Nothing in Section 6.4.2 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.
6.6. Ancillary agreements / Safeguarding clause
6.6.1. Parties’ rights and obligations regarding the object of the Market Data Agreement shall exclusively be governed by the provisions of the Market Data Agreement. Verbal ancillary agreements or assurances have not been made.
6.6.2. The language of the Market Data Agreement is English.
6.6.3. As of 25 April 2019, these General Conditions (the “New General Conditions”), which can be amended from time to time, will replace all existing versions of General Conditions (the “Old General Conditions”), except for the Specific Conditions entered into or transferred with/to EPEX SPOT before 25 April 2019, which shall still be governed by the Old General Conditions, also available on the Website. These Specific Conditions will be governed by the New General Conditions once amended or terminated and replaced by new Specific Conditions.
6.6.4. Also, these New General Conditions will be available until a new Catalogue will be in place in the course of the year 2019. This new Catalogue will be published together with a new version of the General Conditions, which will automatically replace these General Conditions, without prejudice to Section 5.2.
6.6.5. The Market Data Agreement can only be amended by either accepting new General Conditions online (if the Market Data Agreement does not contain Specific Conditions), or by means of an express written agreement signed by an authorized signatory of each Party, including electronically via the Website or any other electronical mean.
6.6.6. In case individual provisions of the Market Data Agreement are or should become ineffective, this shall not affect the effectiveness of the remainder of the provisions. The ineffective provision shall be replaced with a valid one which corresponds to the intended objective pursued as closely as possible.
6.6.7. The failure of either Party to require the performance of any term or condition of this Market Data Agreement shall not prevent any subsequent enforcement of such term or condition, nor shall it be deemed a waiver of any subsequent breach.
Any notice, request, consent, approval or communication under this Market Data Agreement will be sent by registered email, mail, courier, via the Website or any other electronical mean, or delivered in person to the addresses indicated in the contact details either on the Website or in these General Conditions, qualifying as “notices”. Notices include the Notices of change and termination and shall be effective from the date of actual receipt at the designated address of a Party, by email, hand, mail, courier, (electronic) registered letter, or other effective delivery method.
If you have any questions, comments or complaints about the Product(s) you have ordered, please contact us at:
EPEX SPOT SE
Attention: Market Data Department
5 Boulevard Montmartre
75002 Paris – France
Tel: + 33 (1) 73 03 61 21
If you prefer to send us an email, you can do so by clicking here.