4M MC PX-PX Agreement, Schemes and Mind Maps of Communication

Download 4M MC PX-PX Agreement and more Schemes and Mind Maps Communication in PDF only on Docsity! 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 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 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 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 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 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 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 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 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 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 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