General Terms of Contract

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GENERAL TERMS OF CONTRACT FOR EEX INFO-PRODUCTS

PREAMBLE

These terms and conditions apply to all orders which are executed through the Info-Product web shop “MyEEX” as of 19 September 2012 and to all products which exist after 01 January 2013. 
     
The European Energy Exchange (“EEX“) is an exchange under public law with registered offices in Leipzig. EEX AG is the company operating EEX.
 
EPEX SPOT is an exchange under commercial law with offices in Paris. 
EPEX SPOT SE is the company operating EPEX SPOT. 
 
EEX AG and EPEX SPOT SE are jointly referred to as the “operating companies” hereinafter. 
 
EEX and EPEX SPOT are jointly referred to as the ”exchanges” hereinafter.

European Commodity Clearing (“ECC”) with registered offices in Leipzig is a subsidiary of EEX AG, which operates a clearing house for energy and other products.

On every exchange trading day, the exchanges publish prices and volumes on their websites. Moreo-ver, the operating companies also provide the prices and volumes established regarding the tradable products in an internal database. This information is provided to all parties ordering the information products with different rights of use being granted depending on the respective information product. Moreover, it is also possible to subscribe to individual “Info-Vendor packages” and to a “Uni-Vendor package”. Any use of the information compiled and/or of parts of this information is only permitted in those countries in which such use does not violate existing laws.

GENERAL PROVISIONS REGARDING ALL INFO-PRODUCTS

 

1. PARTIES

These terms of contract govern the contractual relationships between

European Energy Exchange AG, Augustusplatz 9, 04109 Leipzig
- referred to as “EEX AG“ hereinafter -

and

the user registered under MyEEX within the EEX system
- referred to as the “Subscriber” hereinafter -
 

2. DEFINITIONS

In this contract the following terms shall have the meaning assigned to them:
 

Additional data:Additional data is the result of mathematical calculations on the basis of trading, transparency or clearing data, such as e.g. indices.
Clearing data:Comprises aggregated trading data for individual trades on the different spot and derivatives markets.
Contract:This contract, its annexes, supplements and amendments.
Delayed Data:Comprises trading data regarding individual trades on the different spot and derivatives markets that are provided with a delay of 15 to 20 minutes; however, it does not comprise end-of-day data.
End-of-Day Data:Comprises the trading data of different spot and derivatives markets from the end of the trading day; however, it does not comprise delayed data.
Exchanges:EEX and EPEX SPOT. 
Fees:Fee paid by the subscriber for access to the Info-Products subscribed to; the amount of these fees is specified in the price list.
Information:Trading data, additional data, transparency data, clearing data and reports which EEX AG provides to the customer in form of Info-Products.
Info-Product:Information product that grants the user electronic access to data regarding products of the spot and derivatives markets established on the exchanges. Information products differ in the rights which they grant and can be offered in the form of modules for different commodities, as additional data, as transparency data, as clearing data or reports and as end-of-day or delayed data.
Intellectual property rights:Patents, trademarks, service markets, brand names, corporate names, copyrights, topographic rights, sui generis rights regarding databases and design rights, regardless of whether any of these have been applied for or registered, as well as including any applications for such, business secrets and rights of confidentiality, any protective rights or forms of protection of a similar nature or the same effect as these which might exist anywhere in the world.
Market data:Trading data, additional data, clearing data and reports.
Modules:EEX AG can divide the information products offered into different modules.
Operating companies:EEX AG, EPEX SPOT SE. EPEX SPOT SE has author-ized EEX AG to dispose of rights of EPEX SPOT SE in the framework of this agreement. 
Regulatory IndicesThese are indices which EEX AG provides to the custom-er on the basis of regulatory specifications in the form of information products.
Reports:Graphic representations or tables regarding trading, trading, additional, transparency or clearing data.
Subscriber:Any person that has concluded the contract with EEX AG
Terms of contract:The contract outlined below.
Trading data:The trading data covered by this contract includes volumes and prices of the products traded on the exchanges since their respective introduction unless such form additional data.
Transparency data:Comprises all the available data of a fundamental charac-ter for producing, storing, transmitting and consuming power, natural gas and LNG. 

3. OBJECT OF THE CONTRACT

The purpose of this contract is to specify the terms and conditions at which the Subscriber is granted access to the information made available by the operating companies.
 

4. CONCLUSION OF CONTRACT

This contract is concluded on the basis of an offer by the Subscriber on the website of EEX AG and its acceptance by EEX AG.

The offer is submitted by ordering the respective Info-Product on the website of EEX AG and by operating the “Place binding order” button. The contract is concluded by EEX AG accepting this offer and forwarding a confirmation to the Subscriber. If such a confirmation is not provided, the contract is still considered concluded if the Subscriber can use the Info-Products.

EEX AG can reject the offer by the Subscriber; a communication indicating the reasons for such refusal shall not be required.

Even though a uniform form is used for placing orders, an individual contract is concluded in each case with regard to every Info-Product and with regard to each individual mobile phone number in the case of SMS products.
 

5. TERM OF THE CONTRACT, TERMINATION, LEGAL CONSEQUENCES

With the exception of the Info-User Historical Data and Info-Student product, the contracts regarding all Info-Products have a term until 31 December of the year during which the contract is concluded in each case. The term of the contract is extended by one year unless the contract is terminated by 31 October of the respective year. A termination not issued in compliance with the period of notice specified is considered a termination as of the next possible date. 

All Info-Products except the Info-User Historical Data and Info-Student product can exclusively be terminated by means of a termination of the order regarding the respective product concerned in the personal MyEEX-Account on the website of EEX AG.

The contract for the Info-Student Product and Info-User Historical Data has a limited term of two months. The term commences on the day following the order and ends upon the end of the day of the week the designation of which corresponds to the day on which the order was placed. A termination subject to a period of notice regarding the Info-Student Product is not possible. 

In the event of a permanent impossibility to deliver or in case of permanent refusal of acceptance with regard to the Info-Products or the communication regarding it on the part of the customer, EEX AG is entitled to terminate the service concerned or to terminate the contract for cause without a period of notice at its own discretion. 

In the event of a delay in payment by the Subscriber, EEX AG is entitled to terminate this contract.

The right to a termination without a period of notice for cause shall not be affected. Should EEX AG terminate the contractual relationship for cause without a period of notice, EEX AG shall be entitled to a claim to lump-sum compensation to the amount of the outstanding fee which would have had to be paid until the next date for a termination with a period of notice. The Subscriber is free to prove whether a case of damage has occurred or whether such damage is considerably lower than the lump sum. 

A termination of this contract shall not affect the existence of the copyrights and intellectual and trademark rights pursuant to this contract. 

 

6. FEE

The amount of the fees for all Info-Products is specified in the price list. The fee has to be paid per annum in advance.

The fee for the year during which the contract is concluded also has to be paid in advance with the amount to be paid being calculated on a proportionate basis from the time of the commencement of the contract until 31 December of the year concerned. The customer is only cleared for access accordingly after payment has been received.

If the Info-User Historical Data or the Info-Student product is subscribed to, the fee for the two-month term has to be paid in advance.

The continuous annual amount has to be paid within a period of 14 days after receipt of the invoice. If the Subscriber is in arrears with regard to the payment of the fees due, a first payment reminder is sent to him after seven (7) days. If said payment reminder remains fruitless for a period of ten (10) days, a dunning letter is issued with a dunning fee of EUR 10.- being charged. If the Subscriber does not fulfil its payment obligation within a period of ten (10) days even though a dunning letter has been issued, a second dunning letter is sent, in which case a dunning fee of EUR 20.- and default interest to the amount of 8.12 percentage points above the base lending rate on the outstanding account receivable are charged. The Subscriber is free to prove whether a case of damage or a reduction of value has occurred or whether such is considerably lower than the lump sum.

In the event of a default in payment by the Subscriber, EEX AG is entitled to block access to the information.
 

7. OBLIGATIONS OF THE SUBSCRIBER, TECHNICAL REQUIREMENTS

The Subscriber is in charge of maintaining and updating his master data, such as the invoice and e-mail addresses. Should the Subscriber fail to sufficiently fulfil this obligation and should updating have to be carried out by EEX AG for this reason, a change fee, such as e.g. for invoices, of in total EUR 10.- can be charged. The Subscriber is free to prove whether a case of damage or a reduction of value has occurred or whether such is considerably lower than the lump sum.

The Subscriber agrees that the e-mail address specified in the context of the registration on MyEEX is used to forward all declarations of intent. Only those declarations for which a different form is required by law shall be exempt from this. In this connection, the Subscriber agrees to check his e-mail account regularly.

With regard to information which is transmitted electronically the Subscriber shall ensure that he fulfils the respective currently required technical preconditions for receiving such under his own responsibility.
 

8. SERVICES BY EEX AG / DATA TRANSMISSION

EEX AG undertakes to make the Info-Products subscribed to available to the Subscriber in accordance with the terms of the contract.

On principle, the information is available on the FTP server and on the websites of EEX AG twenty-four (24) hours a day. In order to download the files made available from the FTP server the user may establish at maximum four (4) simultaneous connections and access individual files at maximum once every 10 seconds. In the event that EEX AG notices a higher number of accesses, it is entitled to establish corresponding restrictions. EEX AG reserves the right to interrupt the transmission of information for a short period for technical reasons.

The information for the respective current day is made available on the FTP server of EEX AG after the calculation of the market results. The information can also be provided within the Download Center on the website of EEX AG; however, there shall be no claim to such provision. EEX AG does not provide any guarantee with regard to the fact that the information is provided at a certain time. EEX AG does not accept any liability for delays or transmission and/or reception failures.

In the event of reports of any kind, the respective information is sent out after the calculation of market results or the compilation of data supplied by third-party providers. EEX AG does not provide any guarantee with regard to the fact that the respective current daily information is provided at a certain time. Under certain circumstances there might be delays in the transmission of the information. EEX AG does not accept any liability for transmission and/or reception delays or failures. EEX AG shall provide the information in a quantity and quality (as regards consistency, precision and scope) which is comparable with that provided to other Subscribers.

EEX AG reserves the right to change the scope of the content and the format of the data provided on the FTP server and in the Download Center of the website of EEX AG and to change the scope of the content of the available data and analyses for reports of any kind provided this does not place the Subscriber in a position which is objectively worse than under the performance specification included in the contract upon its conclusion and provided there is no material deviation from such performance specification. This shall apply, in particular, to new trading products introduced as a part of existing Info-Products and calculations (such as indices) in case functionalities are preserved or improved.
 

9. LIMITATION OF LIABILITY

EEX AG does not assume any liability with regard to the accuracy, completeness, correctness and timeliness of the information contained in the Info-Products and the SMS service. EEX AG does not guarantee that the data is provided without interruptions and with full availability.

The data and notifications contained in these products are only intended as information and do not form investment counselling. None of the information contained in these forms an offer for the sale or advertisement regarding offers for the purchase of products traded on the exchanges, regardless of whether such are products on the spot market or on the derivatives market, such as e.g. options or futures.

In as far as this is legally permissible, EEX AG does not assume any liability for cases of damage unless such are caused by a premeditated or grossly negligent violation of duties on the part of EEX.

EEX AG does not assume any liability for transmission errors or failures which are due to the insufficient fulfilment of technical preconditions on the part of the Subscriber.
 

10. COPYRIGHTS

The copyrights and intellectual property rights regarding data forming the subject of this contract shall rest with EEX AG.

The compilation of the data as such is protected as a database or a database right within the meaning of art. 4 paragraph 2 and 87a paragraph 1 UrhG [German copyright law]. All commercial property rights existing at the time at which the contract is concluded and positions resembling such rights of protection of any kind as well as edited forms, amendments and further developments of such until the time at which the contract is terminated shall remain the property of EEX AG.

A right of use regarding the data made available is only granted in as far as this is specified in the Special Provisions for the individual Info-Products. These terms of contract do not include the trans-mission of any intellectual property rights to the Subscriber. 

 

11. ADJUSTMENT OF THE GENERAL TERMS OF CONTRACT, PERFORMANCE SPECIFICATIONS AND PRICES

The Subscriber shall be informed of amendments of the General Terms of Contract as well as price increases in writing or through an electronic means of communication at least six weeks before such become effective. Until the time at which the amendments become effective the Subscriber shall have an exception right of termination in as far as he is affected by these amendments.

If the Subscriber does not terminate the contract within a period of six weeks after receipt of the notification of the amendments, these will become a part of the contract as of the time at which they take effect. This consequence will be pointed out to the Subscriber in the notification of the amendment separately.

 

SPECIAL PROVISIONS REGARDING THE INFO-PRODUCTS

 

12. SCOPE OF THE INFO-PRODUCTS

 

EEX AG provides the opportunity to procure trading data, such as prices and volumes regarding the products traded on the exchanges, transparency data, clearing data, reports of various kinds as well as additional data, such as indices. To this end, EEX AG offers the Info-Media, Info-User and the SMS-User package with different modules, such as Power, Natural Gas, Emission Rights and Coal, as well as the Daily Transparency Report, the Monthly Carbon Report, the Generation Outage RSS-Feed and the Regulatory Indices. 

The Info-Media and Info-User packages differ in their rights of use. The SMS-User, the Daily Trans-parency Report, the Monthly Carbon Report, the Generation Outage RSS Feed and the Regulatory Indices are exclusively assigned to the Info-User. 
 
The services contained in the Info-User packages are divided into transparency data, historical and current data as well as End-of-Day and Delayed Data. 
 
The transparency data comprises both historical and current data. The data is made available for downloading and, depending on the module selected, it includes:

  • Access to the FTP server and rights of use regarding the data saved on that server in accord-ance with the rules regarding the respective package.
    • Transparency data (power, DE/AT) comprises data on the actual and planned produc-tion, scheduled and unscheduled non-availabilities and on the installed and available capacity of power plants from Germany and Austria.
    • Transparency data (power, CZ) comprises data on the volume of generated on the previous day, scheduled and unscheduled non-availabilities and on the installed and available capacity of power plants from Czech Republic. 
    • Transparency data (natural gas) comprises data on the transmission of natural gas. 

 
The current market data comprises the current year as well as the previous year. The current data is provided for downloading on every exchange trading day and comprises the following depending on the module selected:

  • Access to the FTP server and the market data area of the Download Center on the website of EEX AG and the right to use the data saved there in accordance with the rules for the respec-tive package:
    • Trading data from the EEX Power Derivatives Market, including the OTC transactions which are cleared through ECC
    • Trading data from the EPEX Power Spot Market
    • Trading data from the EEX Natural Gas Derivatives Market 
    • Trading data from the EEX Natural Gas Spot Market 
    • Trading data from the EEX Derivatives Market for Emission Rights, including the OTC transactions which are cleared through ECC
    • Trading data from the EEX Spot Market for Emission Rights, including the OTC trans-actions which are cleared through ECC 
    • Trading data from the EEX Derivatives Market for Coal 

 
The historical market data comprises the period from the beginning of data recording until and includ-ing the previous year. The historical data will be provided for downloading for a period of 2 months as of the conclusion of the contract and comprises the following depending on the module selected: 

  • Access to the FTP server and the market data area of the Download Center of EEX AG and the right to use the data saved there in accordance with the rules regarding the respective package:
    • Trading data from the EEX Power Derivatives Market, including the OTC transactions which are cleared through ECC  
    • Trading data from the EPEX Power Spot Market
    • Trading data from the EEX Natural Gas Derivatives Market 
    • Trading data from the EEX Natural Gas Spot Market 
    • Trading data from the EEX Derivatives Market for Emission Rights (CO2), including the OTC transactions which are cleared through ECC  
    • Trading data from the EEX Spot Market for Emission Rights (CO2), including the OTC transactions which are cleared through ECC  
    • Trading data from the EEX Derivatives Market for Coal 

 
Depending on the respective module selected, the services for the SMS-User comprise the following:

  • Sending of an SMS to a mobile phone number and right to use the data contained in said SMS in accordance with the rules regarding the SMS-User. Currently, the following data, in particular, is provided in this context on every exchange trading day:
    • Trading data from the EEX Power Derivatives Market (Phelix Futures SMS I, Phelix Futures SMS II, French Futures SMS I, French Futures SMS II)
    • Trading data from the EPEX Power Spot Market
    • Trading data from the EEX Derivatives Market for Natural Gas (Natural Gas Futures SMS I, Natural Gas Futures SMS II)
    • Trading data from the EEX Spot Market for Natural Gas 
    • Trading data from the EEX Spot/Derivatives Market for Emission Rights (Emission Rights SMS I, Emission Rights SMS II)

 
The services for the Daily Transparency Report comprise the following:

  • Access to the FTP server and/or sending of an e-mail and right to use the data saved there or contained in the e-mail in accordance with the rules regarding the Daily Transparency Report. At the moment, the following data, in particular, is provided in this context on every exchange trading day:
    • Document in a PDF format with information regarding the current day – tables and charts – generated from transparency data provided by generators and consumers. 

 
The services for the Monthly Carbon Report comprise the following:

  • Access to the FTP server and/or sending of an e-mail and right to use the data saved there or contained in the e-mail in accordance with the rules regarding the Monthly Carbon Report. At the moment, the following data, in particular, is provided in this context:
    • Document in a PDF format with information regarding the current month – tables and charts – generated from emissions data furnished by companies. 

 
The Regulatory Indices comprise both historical and current data. The data is provided for download-ing, and, depending on the module selected, it includes: 

  • Access to the FTP server and the right to use the data saved on this server in accordance with the rules regarding the respective package.
    • Indices on the basis of regulatory specifications for the power module
    • Indices on the basis of regulatory specifications for the natural gas module

 
The services for the Generation Outage RSS-Feed comprise the following:

  • Access to the Generation Outage RSS-Feed and right to use the data contained in it in ac-cordance with the rules regarding the Generation Outage RSS-Feed. At the moment, the fol-lowing data, in particular, is provided in this context on a daily basis:
    • Information on scheduled and unscheduled non-usabilities of generation units.  

 
Information that does not refer to trading activities on the exchanges and clearing activities on ECC or that does not refer to such exclusively is not covered by these terms of contract.

 

13. INFO- MEDIA – RIGHTS OF USE

The Subscriber of the product is entitled to use, save and process the available information in any form and in any way for the term of this contract – however, he shall exclusively be entitled to use such for his own purposes. There is no right to resell the information provided at any time. The data must only be used for displaying free of charge, for example on websites. Such displaying must not have any commercial purpose and shall be effected free of charge and in a freely accessible manner. The use of data must not be limited to a closed group of users.

Any dissemination and publication of the data may only be carried out in compliance with the intellectual property rights of EEX AG and by specifying the source of the data.

The right to use the information cannot be transferred.

The Info- Media product can no longer be subscribed to. The rules regarding the Info-Media product described in these general terms of contract exclusively apply with regard to existing contracts.
 

14. INFO- USER – RIGHTS OF USE

EEX AG grants the Subscriber of the Info-User product the right to use, save and process the available information in any form and in any way - however, he shall exclusively be entitled to use such for his own purposes.

Any dissemination, publication and other commercial use of the data is not permitted.

The right to use the information cannot be transferred.
 

15. SMS-USER – RIGHTS OF USE

EEX AG grants the Subscriber of the SMS-User product the right to use, save and process the available information in any form and in any way - however, he shall exclusively be entitled to use such for his own purposes.

Any dissemination, publication and other commercial use of the data is not permitted.

The right to use the information cannot be transferred.
 

16. DAILY TRANSPARENCY REPORT – RIGHTS OF USE

EEX AG grants the Subscriber of the Daily Transparency Report the right to use, save and process the report and the information available therein in any form and in any way - however, he shall exclusively be entitled to use such for his own purposes.

Any dissemination, publication and other commercial use of the data is not permitted.

The right to use the information cannot be transferred.
 

17. MONTHLY CARBON REPORT – RIGHTS OF USE

EEX AG grants the Subscriber of the Monthly Carbon Report the right to use, save and process the report and the information available therein in any form and in any way - however, he shall exclusively be entitled to use such for his own purposes.

Any dissemination, publication and other commercial use of the data is not permitted.

The right to use the information cannot be transferred.
 

18. GENERATION OUTAGE RSS-FEED – RIGHTS OF USE

EEX AG grants the Subscriber of the Generation Outage RSS-Feed the right to use, save and process the feed and the information contained therein in any form and in any way - however, he shall exclusively be entitled to use such for his own purposes.

Any dissemination, publication and other commercial use of the feed or of its contents is not permitted.

The right to use the information cannot be transferred.

 

19.    REGULATORY INDICES – RIGHTS OF USE

EEX AG grants the Subscriber of the Regulatory Indices the right to, save and process the files and the information contained therein in any form and in any way – however, he shall exclusively be enti-tled to use such for his own purposes.

Any dissemination, publication and other commercial use of the Regulatory Indices and/or their con-tents is not permitted.

The right to use the information cannot be transferred.

 

SPECIAL PROVISIONS REGARDING THE INFO-STUDENT PACKAGE

 

20. SCOPE OF THE INFO-STUDENT PRODUCT

The Info Student package comprises the following services:

  • Access to the market data area of the Download Center of EEX AG and the right to use the data saved there for research purposes. At the moment, the following data, in particular, is provided there for downloading on every exchange trading day:
    • Trading data from the respective markets, including the OTC transactions which are cleared through ECC.
       

Information that does not refer to trading activities on the exchanges and clearing activities on ECC or that does not refer to such exclusively is not covered by these terms of contract
 

21. PRECONDITIONS

The Info-Student product may only be subscribed to by Subscribers that have a valid student identity card or an equivalent document substantiating their status and it may exclusively be subscribed to for research purposes. Upon a request to this end by EEX AG, the corresponding proof shall be presented. Should such proof not be presented upon request, EEX AG is entitled to charge the fees for the Info-User product for the module subscribed to.
 

22. INFO-STUDENT – RIGHTS OF USE

EEX AG permits the Subscriber of the Info-Student product to use, save and process the available information – however, only for his/her own research purposes. Any dissemination, publication and other, comparable use of the data shall only be permitted in the context of a bachelor‘s, master’s final, academic and Ph.D. thesis. The source of the data (EEX AG) has to be specified in any case. Any dissemination, publication and other use of the data exceeding this framework is not permitted. Any commercial use is excluded.

The Subscriber is not entitled to pass on his/her access data for the MyEEX-Account in any form whatsoever.

The right to use the information cannot be transferred.
 

23. INFO-STUDENT FEE


The Subscriber of the Info-Student has to pay a fee of EUR 20 (twenty). The Subscriber undertakes to provide the paper prepared by him/her to EEX AG for its internal use.

 

SPECIAL PROVISIONS REGARDING THE SMS-USER

 

24. PARTICULARITIES IN THE EVENT OF SEVERAL MOBILE PHONE NUMBERS

The MyEEX-Account permits the registration of up to five mobile phone numbers. A separate contract is concluded for every mobile phone number. The different SMS products can be subscribed to for this contract; the rule on fees contained in the price list shall apply to every individual mobile phone number.

 

FINAL PROVISIONS

 

25. APPLICABLE LAW/LEGAL VENUE/OFFSETTING

These terms of contract apply to all orders which are executed through the Info-Products web shop “MyEEX” as of 19 September 2012 and to all products which exist after 01 January 2013. 

This contract is governed by the laws of the Federal Republic of Germany; the German version of the text shall be effective.  

Leipzig shall be the legal venue for all conflicts arising under or in connection with this contract if the Subscriber is a merchant and the contract is part of the operation of his commercial business or if the subscriber is a legal entity. The statutory legal venues apply with regard to non-merchants. 

The Subscriber may only offset counterclaims which are undisputed, established by a court of law or ready for a decision in legal proceedings against claims of EEX AG. The Subscriber may only transfer claims based on this contract against EEX AG to a third party after EEX AG’s written approval has been obtained. 
 

26. ANCILLARY AGREEMENTS / SEVERABILITY CLAUSE

The rights and obligations of the Subscriber regarding the object of the contract shall exclusively be governed by the provisions of these terms of contract. Verbal ancillary agreements or assurances have not been made. This contract can only be amended on the basis of an express written agreement.

In case individual provisions of this contract are or should become ineffective or unenforceable, this shall not affect the validity of the remainder of the provisions. The invalid or unenforceable provision shall be replaced by a provision corresponding as closely as possible to the commercial objective of the ineffective or unenforceable provision. The same shall apply in case the parties to the contract subsequently find out that this contract contains gaps.