CERQLAR PLATFORM TERMS AND CONDITIONS

Last modified: 4 October  2023

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

These CerQlar Platform Terms and Conditions (“Terms”) are a legally binding agreement between CerQlar B.V., a private company with limited liability, incorporated under the laws of the Netherlands, with its office at Strawinskylaan 3127, 1077 ZX Amsterdam, the Netherlands, registered in the trade register with the Dutch Chamber of Commerce under number 76673162 (“CerQlar”, “we“, “us” or “our”), and the legal entity agreeing to these Terms without reservations, on behalf of itself and its Affiliates (“Member“, “Client,” “you” or “your”). 

These Terms govern your use of our Service and your relationship with us. By accessing, visiting, downloading or using our Service, you confirm that you have read and agreed to these Terms. If you do not agree to these Terms, then you are not to access or use our Service. 

Parts of our Service may be made available without any requirement to pay a fee, and you hereby acknowledge and agree that any such access to or use is also governed by these Terms.

We update these Terms from time to time. If you have an active Subscription, we will notify you when we update the Terms in your Account or by email. If a material change is unacceptable to you, you may terminate your Subscription in accordance with these Terms. Continued use of the Service constitutes acceptance of the updated Terms. 

All definitions used herein can be found under CerQlar Definitions and are part of these Terms. 

1. Access

1.1 During your Subscription, we will provide you and your End Users with access to use the CerQlar Platform which enables you to manage Products supported by the Service; including capturing and settlement of bilaterally executed trades in certain energy certificates, including via interface access (with third-party service providers) to various national Registries for such certificates.

1.2 The Services are offered and accessed through the CerQlar Platform.

1.3 You assume full responsibility and risk of loss resulting from your use of the Service and the CerQlar Platform.

2. Subscription types

2.1 We offer different types of Subscriptions:

2.1.1 “Free Subscription”: you will receive Free Services only, at no cost to you.

2.1.2 “Promo Subscription”: for a limited time only; you will receive Free Services, plus certain Premium Services at no additional cost. 

2.1.3 “Premium Subscription”: you will receive Free Services and Premium Services against payment of the Fees.

2.2 Free Services will remain for free regardless of the Subscription type. 

2.3 These Terms apply to all Subscription types, unless the nature of the provision dictates otherwise. Specific and additional terms may apply to each of the Subscription types, as included in Product Specific Terms of these Terms. 

3. Term and Termination

3.1 Your Subscription Term will be specified in your Order, after which your Subscription will automatically renew for one-year periods, unless you or we provide written notice of non-renewal at least ninety (90) days’ prior to the end of the then current Subscription Term.

3.2 Either party may terminate the agreement for cause, as to any or all Services (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

3.3 We may modify or terminate the Service in any country or jurisdiction where there is any current or future government requirement or obligation that (i) subjects us to any regulation or requirement not generally applicable to businesses operating there, (ii) presents a hardship for us to continue offering the Service without modification, and/or (iii) causes us to believe the Terms or the Service may conflict with any such requirement or obligation.

3.4 We may terminate the agreement immediately upon notice to you if we decide, in our sole discretion, that the continuation of the agreement may cause (reputational) harm to us.

3.5 You may terminate the agreement upon 30 days’ notice to us if you do not agree with an amendment of the Terms that constitutes a material adverse amendment to you.

3.6 The agreement may not otherwise be terminated prior to the end of the Subscription Term.

3.7 Upon termination or expiration of your Subscription, your Subscription type may be converted to a Free Subscription; unless you provide instruction for full termination of all Services; in which case you will stop all use of the Service. If you terminate the agreement for cause, we will refund any prepaid fees on a pro-rata basis for the remaining Subscription Term. If we terminate the agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

4. Fees for paid Services

4.1 You will pay the Fees for the Services, which shall include in any case the Premium Subscription and/or Additional Services where applicable (i) when you exceed applicable limits as defined in your Order (ii) when you upgrade base package; (iii) you subscribe to Additional Services or (iv) otherwise agreed to in your Order. All Fees are stated and payable in Euros.

4.2 We shall invoice you immediately upon signing of the Order for the first year of your Subscription Term and on the anniversary of each subsequent year of the Subscription Term or renewal thereafter. When and as applicable, for any Additional Service(s) and depending on the characteristics of the Additional Service, we shall invoice you prorated and adjusted to your Subscription Term or invoice you periodically in arrears. 

4.3 Upon renewal, we may adjust your Fees up to our then-current CerQlar fee schedule. If this increase applies to you, we will notify you at least forty five (45) days’ in advance of your renewal and the increased fees will apply at the start of the next renewal term.

4.4 If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term including any Additional Services. You further authorize us to use a third-party to process payments, and consent to the disclosure of your payment to such third party. 

4.5 If you are paying by bank transfer, you shall pay all invoiced amounts within thirty (30) days’ of receipt of such invoice. 

4.6 If you dispute any amount under any invoice, you shall within fourteen (14) days’ notify us of such disputed amount and the basis for the dispute. Any amounts disputed in good faith will not accrue interest.

4.7 All Fees are exclusive of taxes, which we will charge as applicable. You will be responsible for any applicable sales, value-added, use and similar taxes, levies and impositions (“Taxes”) payable with respect to your use of the Service, or otherwise arising out of or in connection with the Subscription, other than taxes based upon our personal property ownership or net income. If you have tax-exempt status or are required to deduct or withhold tax from payment of your invoices, you will provide written evidence of such status or receipts verifying the deduction amounts upon commencement of use of the Service and upon request by us.

4.8 You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information and tax information up to date for the payment fees. We are not responsible in any way if you fail to do so.

5. Use of the Service

5.1 During the Subscription Term, we will provide your End Users access to use the Services as described in these Terms and the applicable Order. 

5.2 You will have a personal Account to access the Service and manage the setup of your Account and your Information. You are responsible for any acts and omissions of your End Users as though they were your own. The CerQlar Acceptable Use Policy is incorporated herein by reference and made a part hereof.

5.3 You may subscribe to Additional Services by placing an additional Order or activating the Additional Services from within your Account (if this option is made available by us). These Terms will apply to all additional Orders and all Additional Services that you activate. 

5.4 Any upgrades to your Subscription can be made by placing a new Order.

5.5 You shall use the Service solely for your internal business purposes. You shall not, and shall not facilitate, engage or allow any End User, Affiliate or other third party to, access or use the Service in violation of the CerQlar Acceptable Use Policy.

5.6 You may be required to accept third party terms as part of the CerQlar Platform or the Service, and your failure to do so may result in limited Service capability or inability to use the Service in full. We accept no liability in this regard.

5.7 You may not use the Service if you are legally prohibited from receiving or using the Service under the laws of the country in which you reside or from which you access or use the Service.

5.8 You shall not infringe or misappropriate, or take any action inconsistent with our ownership of and rights in, the Service, the CerQlar Platform, CerQlar Website or any CerQlar API.

6. New Features, Supplements or Related Software

6.1 When we introduce features, offerings, supplements or related services that are new (i.e., that were not previously included with Service), we may provide terms or make updates to these Terms that apply to your use of those new features, offerings, supplements or related services. If those terms include any material adverse changes to the Terms, we will provide you a choice to use the new features, offerings, supplements or related services, without loss of existing functionality of a generally available Service. If you do not use the new features, offerings, supplements or related services, the corresponding new terms will not apply. 

7. Monitoring

7.1 Activity Monitoring. We may monitor your access to and use of the CerQlar Platform for our own purposes (including, without limitation, monitoring levels of activity in categories of Products and with Registries, maintaining the functional and operational integrity of the Service and the CerQlar Platform, and for complying with Applicable Law), and not for your benefit.

7.2 Monitoring of Notifications. From time to time, you will receive via the CerQlar Platform electronic notifications or email including passive notifications, for actions to be taken by you (and/or your End Users) on the CerQlar Platform and/or in another venue or platform, including a Registry or a third-party application associated with the CerQlar Platform. You acknowledge that you are responsible for any result of not monitoring and timely acting upon such notifications.

8. Trades

8.1 Responsibility for Trading Activity. You shall be solely responsible for (i) your obligations pursuant to each Trade and Trade Agreement and all terms and conditions thereof, (ii) compliance of each Trade and Trade Agreement, and all terms and conditions thereof, with Applicable Law, and (iii) performing your obligations under each Trade Agreement.

8.2 No Matching. The Service and the CerQlar Platform do not perform any function with respect to matching any proposed Seller with any proposed Buyer for any Proposed Trade.

8.3 CerQlar Not Party to Trades. CerQlar nor any of its Affiliates is, or shall be a party, expressly or by implication, to any Trade or Trade Agreement or other than as set forth herein or as provided via the Service, involved in any documentation, negotiation, conclusion or confirmation of any Proposed Trade or Trade.

8.4 Notification of Executed Trade Modification or Cancellation. If, after executing a Trade Agreement with respect to a Trade, you and a Trade counterparty mutually agree to modify the terms of such Trade, or withdraw such Trade (in whole or in part), it is your full responsibility to reflect this mutual agreement by modifying or canceling the Trade on the platform or should the functionality not allow deleting/modifying specific contents of the Trade, then you should contact support and if requested by CerQlar, provide proof of the mutual agreement modifying the Trade. CerQlar will, at its discretion and with no assumption of liability, provide assistance to update the applicable Trade Information in the CerQlar Platform. You authorize CerQlar to provide such assistance and to update the applicable Trade Information in the CerQlar Platform on behalf of the Trade parties.

9. Counterparty Diligence

9.1 Before entering into any Trade with a Trade Counterparty, you shall perform all anti-money laundering and economic sanctions screening obligations required under Applicable Law with respect to establishing a relationship with such Trade Counterparty. To the extent required by Applicable Law, you will: 

9.1.1 verify the identity of each Trade Counterparty; 

9.1.2 prior to the time of the first Trade with each Trade Counterparty, determine at that time and periodically thereafter that the Trade Counterparty is not and has not become a legal entity that is directly or indirectly listed on any national or international sanctions list, or is otherwise prevented from trading under any Applicable Law, in which case CerQlar reserves the right , at its sole discretion, to block such Trade Counterparty from trading on the CerQlar Platform; and 

9.1.3 understand each Trade Counterparty to the extent necessary to reasonably conclude that, to your knowledge, no Trade entered into the Service is prohibited by Applicable Law.

10. Submitting Trade Information

10.1 During the Subscription Term, and depending on your Subscription type, you will have the ability to submit information regarding Trades and Proposed Trades, including Trade Information, to the CerQlar Platform. 

10.2 With respect to Proposed Trades, the Service can facilitate the documentation, conclusion and confirmation of applicable Trade Information and the terms of the Trade Agreement as agreed between you and the Trade Counterparty, and the Settlement of one or more Deliveries and Payments, as applicable to each Trade.

10.3 Trade Book Import. According to your Subscription type and upon our notification to you that the relevant functionality to enable the importing of Trade Information for existing Trades is available for use, you may submit to us, in accordance with the guidelines provided by us, a listing of existing Trades, already effective as of such commencement date (such Trades collectively being Client’s “Trade Book”), and we will use reasonable efforts to import the relevant Trade Information to the CerQlar Platform.

11. Registry Interaction and Inventory Management

11.1 Each Registry, as made available by us to you for access via the CerQlar Platform from time to time during the Term, shall be a Subscribed Registry hereunder, without additional fees. Any changes to status of any registry as a Registry under the Service, including as an API-connected Registry or a Non-API-connected Registry, will be determined by us and notified to you. 

11.2 Upon commencement of your access and use of the Service and/or upon the addition of any Registry as a Subscribed Registry for you, the Service may include the collection from such Registry of information with respect to Client’s Inventory at such Registry, or you may provide such information to us. We will use reasonable efforts to import the relevant Inventory information to the CerQlar Platform.

11.3 You shall remain responsible for your ongoing compliance with the applicable terms and conditions of any Registry as to which you provide us with Registry Access Information and/or authorization for access, provided that we shall have used such authorization only for the purpose of providing the Service.

11.4 We are not liable for any act or omission arising from, or any failure or interruption of and/or access to, any Registry, to the maximum extent permitted by Applicable Law.

12. Product Coverage

12.1 The CerQlar Platform will provide Services with respect to Products serviced by CerQlar and traded by you, in accordance with these Terms and as adopted or amended from time to time. We may expand the serviced Products from time to time, as determined by us. Additional Products may be made available to you at an additional cost. 

12.2 You may only cause genuine Inventory of Products that are owned by you to be brought into your Account.

12.3 We take no ownership or control of any of your Products and/or Inventory in connection with the Service.

13. Service Changes

13.1 We reserve the right, in our sole discretion, to make any changes to the Service that we deem necessary or appropriate to maintain or enhance: 

13.1.1 the quality or delivery of our services; 

13.1.2 the competitive strength of or market for our services; 

13.1.3 the Service’s performance and/or efficiency; and/or 

13.1.4 compliance with Applicable Law.

14. Suspension of the Service or Your Activity

14.1 Without prejudice to your other rights and obligations, we have the right to, by any lawful means and without prior notice to you, suspend, terminate or otherwise deny your, any End User’s or any other person’s access to or use of all or any part of the Service or the CerQlar Platform, without incurring any resulting obligation or liability, if:

14.1.1 we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so; 

14.1.2 we believe, in our good faith discretion, that you or any End User has failed to comply with any material term of the agreement, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any instruction or requirement of the Terms (provided we provide you with notice thereof and you have not cured such breach within five (5) Business Days); 

14.1.3 you or any End User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Service (provided that, in such event, we may suspend or deny access but will use commercially reasonable efforts to limit the impact on you and shall notify you of the reason therefore as soon as practicable); or

14.1.4 this Agreement expires or is terminated.

14.2 With regard to any or all activity on the CerQlar Platform, we are entitled to:

14.2.1 suspend such activity if the orderly conduct of activities on the CerQlar Platform appears to be temporarily threatened or if such suspension appears to be appropriate in order to protect the public;

14.2.2 discontinue such activity, if it appears possible that the orderly conduct of such activity can no longer be ensured; and

14.2.3 suspend you due to financial concerns or irregularities, litigation, reputational risk to CerQlar and/or the CerQlar Platform, and/or other reasons as determined by CerQlar.

15. Intellectual Property Rights

15.1 This is an agreement for access to and use of the Service. You are not granted a license to any other software, copyright or other Intellectual Property Rights by the agreement or under these Terms. 

15.2 We retain all right, title and interest in and to the Service, CerQlar Platform and CerQlar Website, including any content thereon and all data related thereto other than your Information, and any other products or services provided by us. For each of the foregoing, any and all Intellectual Property Rights therein are and shall be owned exclusively by us. 

15.3 During the term of your Subscription, you grant us a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, non-transferable right and license to use Your Information solely for the following purposes (i) to provide the Service, and (ii) to convert Trade Information and Inventory information into an anonymized or aggregated form for our internal and commercial purposes or to comply with Applicable Law.

15.4 For the avoidance of doubt, anonymized or aggregated data that arises from use of the Services (i) is not identifiable to any person or entity and (ii) does not contain any Confidential Information. All such statistics arising out of anonymized or aggregated data will be owned by CerQlar. 

16. Confidentiality

16.1 CerQlar and Client, each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, including but not limited to Your Information, except as permitted by these Terms.

16.2 CerQlar and Client, each may disclose the other’s confidential information:

16.2.1 to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the agreement. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause; and

16.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

16.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the agreement.

16.4 CerQlar is entitled to disclose your Account name to other Account holders for the purpose of Trading or internal business purposes.

17. No Warranties

17.1 The Service and the CerQlar Platform are provided “AS-IS” and we and our Affiliates make no representation, warranty or condition, statutory, express or implied, whether by law, course of dealing, usage or trade practice, or otherwise, including any implied representation, warranty or condition of merchantability or fitness for a particular purpose (each of which is expressly disclaimed), in connection with the provision of the Service or the CerQlar Platform. Without limiting the foregoing, we make no warranty of any kind that the Service or CerQlar Platform, or any products or results of the use thereof, will meet your requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code or error free.

18. Limitation of Liability

18.1 Subject to clause 21.3, to the maximum extent permitted by Applicable Law, in no event shall either party be liable to the other for any indirect or consequential damages, including but not limited to loss of profits, loss of revenue, loss of anticipated savings, wasted expenditure, loss or corruption of data, loss or interruption of business, loss of opportunity, loss of goodwill or damage to reputation, however caused and whether in contract, tort, or under any theory of liability, and whether or not such party has been advised of the possibility of such damages. 

18.2 Subject to clause 21.3, to the maximum extent permitted by Applicable Law, in no event shall CerQlar’s aggregate liability to you arising from or in connection with the agreement exceed the lower of: (i) the total Fees paid and payable by you under the agreement or EUR 10,000 (ten thousand euros).

18.3 The limitations of liability set forth in these Terms shall not apply to: (i) a breach of the Acceptable Use Terms , (ii) a breach of the confidentiality obligation, (iii) a claim for indemnification (iv) damages caused by a party’s willful misconduct or gross negligence, (v) the Fees payable under the agreement, (vi) any other liability that cannot be limited or excluded under Applicable Law.

19. No Liability regarding Trades

19.1 You shall be solely responsible and liable for your obligations pursuant to each Trade and Trade Agreement and all terms and conditions thereof, and the compliance of each Trade and Trade Agreement with Applicable Law.

19.2 We shall not be responsible or liable with respect to any Trade Agreement, any term or condition thereof, the compliance of a Trade Agreement with Applicable Law, or your compliance with a Trade Agreement.

20. No Liability regarding Products

20.1 Any issues that may arise regarding the validity of any Product and/or the ownership of any Product (including with respect to the existence any associated lien, security interest, encumbrance or similar adverse claim), or any other issue related thereto, shall be addressed between the Buyer and Seller of the Product(s), and the Service will not address, and we shall not have any liability with respect to, any such substantive issue.

21. Indemnities

21.1 You will indemnify, defend and hold harmless us and our Affiliates and their respective officers, directors, employees, service providers and agents from and against any Losses sustained or incurred as a result of any third-party claim, suit, action or proceeding brought against us to the extent that such claim is based upon or arises out of: 

21.1.1 your or your Affiliates’ gross negligence, fraud or misconduct in connection with the agreement and/or any Trade, Settlement, Acceptance and/or Delivery hereunder;

21.1.2 your or your Affiliates noncompliance with or breach of the agreement, any warranty or these Terms;

21.1.3 your or your Affiliates violation of Applicable Law in your performance of the agreement or use of the Service;

21.1.4 noncompliance of any Trade Agreement with Applicable Law;

21.1.5 unauthorized or illegal use of the Service by you or your Affiliates;

21.1.6 your or your Affiliates use of third-party products;

21.1.7 the unauthorized use of the Service by any other person using your Account, provided, however, that you shall not be obligated to indemnify us for any Losses to the extent that such Losses were caused by our willful misconduct.

21.2 We will indemnify, defend and hold harmless you and your Affiliates and their respective officers, directors, employees, service providers and agents from and against any Losses sustained or incurred as a result of any third-party claim, suit, action or proceeding brought against you based upon a claim that the Service, CerQlar Platform or any CerQlar API infringes the Intellectual Property Rights of a third party; provided, however, that we shall not be obligated to indemnify you for any Losses to the extent that such Losses (i) were caused by your negligence or willful misconduct, or (ii) is based on the interaction of the Service, CerQlar Platform or the CerQlar API with any system or software not provided by us that would not arise but for such interaction.

22. Security Measures

22.1 We will implement and maintain commercially reasonable technical and organizational security measures designed to meet the following objectives and to this end we will: 

22.1.1 ensure the security and confidentiality of your Information in our possession and under our control;

22.1.2 protect against any anticipated threats or hazards to the security or integrity of your Information;

22.1.3 protect against unauthorized access to or use of your Information; and

22.1.4 ensure that our return or disposal of your Information is performed in a manner consistent with our obligations.

23. Privacy Policy

23.1 In providing the Service, we may collect and process your personal data. The main purpose of collecting personal data is to provide the Service to you. For more detailed information, we refer you to our Privacy Policy on our website.

24. Miscellaneous

24.1 Governing law. These Terms and our agreement with you are governed by the laws of the Netherlands, without regard to any conflict of law rules. 

24.2 Jurisdiction. Any dispute between us relating to or arising out of the agreement, the Service or the CerQlar Platform, whether contractually or non-contractually, shall be exclusively submitted to the courts of Amsterdam, the Netherlands. 

24.3 No Legal Advice. The Service, CerQlar Platform and other materials or information provided by us are not intended to be, and should not be taken as, legal advice.

24.4 Cooperation. Each party will, at its expense, cooperate reasonably with any audit or review performed by any Regulator. You will provide reasonable cooperation and assistance in connection with our efforts to obtain any necessary licenses and/or Regulatory Approval as may be required from time to time, in our reasonable determination.

24.5 Publicity. We may refer to you as one of our customers and use your name and logo as part of such reference. You agree to be a reference account for us and we may schedule reference calls or issue a press release announcing the relationship between us. You may withhold such consent on reasonable grounds and by providing us with such written notice that you wish to withhold such consent.

24.6 Amendment. We may modify any part or all of these Terms by posting a revised version on the CerQlar Website. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email. Amendments will be prospectively binding on you, provided that we will provide at least fourteen (14) days’ prior notice, through electronic or other direct communication with you, of any such amendments that are likely to materially and adversely affect your rights or obligations hereunder. In case you object to a revision of the Terms, and we determine, in our discretion, that the revision qualifies as a material adverse change to you, the then current Terms will continue to apply until the end of your then current Subscription Term. The revised version of the Terms will apply to any extension of your Subscription.

24.7 Assignment. You shall not transfer or assign the agreement or any of the rights or obligations thereunder, in whole or in part, without our prior written consent, which shall not be unreasonably withheld, conditioned or delayed. We may assign the agreement to any Affiliate or in the event of a merger, reorganization, sale of assets, change of control or by operation of law, for which assignment you hereby give prior irrevocable consent.

24.8 No Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

24.9 Force Majeure. Except for your payment obligations under the agreement, neither party will be liable for delay or failure to perform if caused by a force majeure event as defined in Article 6:75 of the Dutch Civil Code. 

24.10 Severability. If any part of these Terms or any related agreement or documentation is determined to be invalid or unenforceable by Applicable Law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in effect.

24.11 Notices to us. Notices with legal effect must be in writing and sent by e-mail to [email protected] or by registered post to our address listed at the beginning of these Terms. We may provide you with notices via email and/or the CerQlar Platform. Notices with legal effect will be provided to the e-mail address provided by you, and you are responsible to update your email address when changed. 

24.12 Notices to you. We may provide you with electronic general notices via Our website or the CerQlar Platform announcing releases, security updates or service interruptions and may give you electronic notices specific to you by email to you email address(es) on record via e-mail and/or your CerQlar Platform account. Notices with legal effect will be provided to the e-mail address provided by you, and you are responsible to update your email address when changed. 

24.13 Survival. The following clauses will survive the expiration or termination of the agreement: Confidentiality, Intellectual Property Rights, Limitation of Liability, No Liability regarding Trades, No Liability regarding Products, Indemnities, Miscellaneous.

24.14 Precedence. In the event of a conflict between these Terms and an Order, the terms of the relevant Order will prevail, but only as to that Order.

Product Specific Terms for CerQlar’s Free and Promo Subscriptions

25. Free Services

25.1 Free Services as defined below apply to all Subscription types or specific Services or features made available by us to you on an unpaid trial or free basis. 

25.2 The “Free Services” means, and shall in any case include: 

A) manual trade capture and lifecycle management services (including Trade Recap as a Trade Counterparty of Trade entered into the platform by other members of the CerQlar Platform); B) inventory normalization (ability to upload and synchronize inventory data from various registries in one aggregated view); and (C) only available to EkoEnergy members, module (A) and module (B) above plus EkoDirect as a service, operated by our partner EkoEnergy® and subject to separate agreement between the You and EkoEnergy® (to verify whether a Product is EkoEnergy® certified and submit a request for an ecolabel to EkoEnergy® on their redeemed energy attribute certificates to certify green energy consumption and perform audit electronically).

25.3 The Free Services, as applied to the Free Subscription type, are limited as follows: 

25.3.1 Number of Users: you are allowed to authorize a maximum of one (1) End Users under your Account.

25.3.2 Term and Termination: Free Services are made available for an unlimited time; however they may be terminated with immediate effect by CerQlar at any time if it deems, at its sole discretion, that any of the Terms of this agreement or related policies have been violated; or under any other term leading to a termination is deemed applicable at our sole discretion. 

26. Services for Promo Subscription

26.1 If you have a Promo Subscription, CerQlar may make available to you certain Premium Services free of charge and for a limited period of time.

26.2 If you have a Promo Subscription and are able to access Premium Services, CerQlar reserves the right to suspend such access at any time for any reason, with immediate effect and without prior notice to you. 

27. Limitations for Promo Subscription

27.1 You are eligible to receive Premium Services for a maximum period as determined by CerQlar. CerQlar can extend such period at its sole discretion.

27.2 Your use of the Premium Services is limited as follows:

27.2.1 Trade Capture Service: you are allowed to initiate up to a certain amount of otherwise billable transactions; which amount will be determined by CerQlar on a case by case basis;

27.2.2 Inventory Management Service: you will be allowed to initiate up to a certain amount of otherwise billable transactions; which amount will be determined by CerQlar on a case by case basis;

27.2.3 Number of Users: you are allowed to authorize a maximum of two (2) End users under your Account.

27.3 CerQlar may make available certain Premium Services that are out of scope of your Order. If, upon expiration of the term of your Promo Subscription, you fail to adjust your Subscription to Premium Subscription and include these Services, CerQlar will terminate such Services with immediate effect and without prior notice to you.

27.4 CerQlar reserves the right to increase or decrease any applicable limits at any time for any reason, with immediate effect and without prior notice to you. 

28. Switching Subscriptions

28.1 When you switch (i.e. downgrade) from a Premium or Promo Subscription, you will continue to have access to our Services under the Free Subscription.

28.2 CerQlar reserves the right to either downgrade or terminate your Free or Promo Subscription at any time and with immediate effect if you fail to comply with these Terms, without incurring any liability or costs, and without prejudice to CerQlar’s other (non)contractual termination rights. 

Product Specific Terms for CerQlar’s “Position” Subscription 

29. Position Subscription

29.1 CerQlar offers an exclusive entry-level Subscription by introducing a stand-alone module of the CerQlar Platform, called Position, which enables you to purchase Position Management services.

29.2 The Position Subscription also includes trade lifecycle management (only for trade overview), forecasting, trade book upload and inventory management services. The Position Subscription includes one (1) Product class; which Product class will be defined by you in your Order  For a detailed description, we refer you to the dedicated Position webpage https://www.cerqlar.com/position-hub/.

29.3 If you purchase a Position Subscription, you will have limited accessibility to the CerQlar Platform. You must ensure your system’s configuration with the CerQlar Platform, with which CerQlar can assist. You will be allowed to register up to two (2) users.

30. Term and termination

30.1 The Position Subscription will commence within 24 hours after we accept your Order by sending an Order Confirmation (as defined below in clause 32.4). 

30.2 For monthly Position Subscriptions a minimum term of two (2) months applies.

30.3 The Position  Subscription, provided the minimum term has been met and paid, can be terminated at any time, by either you or us taking into account 30 days prior written notice.

31. Pricing

31.1 The Fees for the Position Subscription will be charged on a monthly, bi-annual or annual basis. Fees are non-refundable, save where the exceptions of clause 3.7 of these Terms apply.

31.2 The general provisions of clause 4 (Fees for paid Subscriptions) of these Terms apply to the Position Subscription.

32. Purchasing and activation of Position Subscription

32.1 You may purchase your Position Subscription by offline Order or on the Cerqlar Website through our online ordering process. When completing your Order online through the Cerqlar Website,  please follow the onscreen prompts to place your order. Each Order is an offer by you to buy the Services specified in the Order subject to these Terms.

32.2 Our online Order process through the Cerqlar Website allows you to check and amend any errors before submitting your Order to us. Please check the Order carefully before confirming it. You are responsible for ensuring that your Order is complete and accurate.

32.3 After you place your Order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your Order has been accepted. Our acceptance of your Order will take place as described in clause 32.4.

32.4 Our acceptance of your Order takes place within 24 hours of a working business day  and when we send an email to you to accept it (Order Confirmation), at which point the Position Subscription contract between you and us will come into existence with the effective date of your Order. The Position Subscription will relate only to those Services confirmed in the Order Confirmation. These Terms apply to the Order by you and supply of Services by us to you.

32.5 While accessing your Position Subscription on the CerQlar Platform, you may have access to and  receive certain Free Services in clause 25.2 and/or  Services for Promo Subscription in clause 26.1 of these Terms. CerQlar reserves the right to suspend such access at any time for any reason, with immediate effect and without prior notice to you. No rights can be derived from or claimed from having access to and making use of the Free Services and/or Services for Promo Subscription. 

 ANNEX 1: DEFINITIONS AND CONSTRUCTION THE CERQLAR SERVICE TERMS 

I. Definitions. Capitalized terms used in these Terms will have the meanings provided below:

(i) “Acceptance” (and “Accept”) means, with respect to a Trade, the confirmation of acceptance by Buyer of any one or more Deliveries of specified quantity of Product of specified attributes.

(ii) “Account” means, with respect to any End Users, each account(s) created by, for or on behalf of Client within the CerQlar Platform for access to the Service.

(iii) “Additional Service” means each category or component of the Service, including additional functionality, features, capability and/or quantities of applicable included Services and/or Transactions (other than those functionalities, features, capabilities and/or quantities of Transactions included in your Subscription) for which you are, from time to time, provisioned pursuant to your selection and in accordance with the terms hereof.

(iv) “Affiliate” means, in relation to Client, a person or entity that is now or hereafter becomes directly or indirectly controlled by such Client, or is in common control or controlled by another person or entity 

(v) “API” means an application programming interface that enables programmatic interface and data interchange with a software application, system or platform.

(vi) “Applicable Law” means, with respect to any matter, any and all laws, regulations, rules, orders, decisions, decrees, demands, interpretations, guidance or other legally binding pronouncements of any Governmental Body having jurisdiction over the relevant Party(ies) with respect to such matter, as in effect from time to time during the term of these Terms, including, for the avoidance of doubt, the Regulatory Requirements. References to any law or regulation shall include any amendment to, consolidation, re-enactment or replacement of such law.

(vii) “Authorized Payment Method” means, a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.

(viii) “Business Day” means any day that is not  a Saturday or Sunday, or  a bank holiday in the Netherlands.

(ix) “Buyer” means, with respect to a Trade (or Proposed Trade), the party to such transaction that has agreed to purchase (or is proposed to agree to purchase) the specified quantity of Product of specified attributes for Acceptance.

(x) “CerQlar API” means any API that made available by CerQlar to enable programmatic interface and data interchange with the CerQlar Platform.

(xi) “CerQlar Platform” means the proprietary market technology, software and services platform owned, licensed, controlled and operated by CerQlar, including the management and operation of a digital platform that allows Service Participants to manage and Settle bilaterally-executed trades in Products, including via interface with Registries on behalf of Service Participants in connection with  collecting Inventory information;  providing instructions regarding Products, including transfer and cancellation; and  other matters.

(xii) “CerQlar Website” means the website owned and/or operated by CerQlar and accessible at www.cerqlar.com.

(xiii) “Your Information” means any and all data that you or any End User inputs into the CerQlar Platform, or otherwise provides to us in connection with the Service, for processing as part of the Service, including any Personal Data forming part of such data. Client Information may include:  Trade Information for any Trade that you first submit to the Service;  your Inventory information;  information with respect to your End Users, authorized signatories to your Trade Agreements and other personnel authorized to act for you; and  any settlement price or other quotation information that you provide to the Service in connection with its status as a Client.

(xiv) “Confidential Information” means all, or any part of, and originals or copies of, any information, data, plans, materials, processes, methodologies and concepts, in whatever form embodied (e.g., oral, written, electronic) owned by either Party or related to the Service or these Terms, including Client Information and Trade Information, that either Party (the “Receiving Party”) receives from the other Party (the “Disclosing Party”), or any such information of the Disclosing Party to which the Receiving Party gains access as a result of these Terms or the Service, no matter how or by what party such information, materials, or concepts were transmitted to or learned by the Receiving Party. For the avoidance of doubt: Client Information and Trade Information shall be deemed Confidential Information of Client.

(xv) “Control” means, with respect to any person or entity, the ownership of more than 50% of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority of such person or entity.

(xvi) “Delivery” (and “Deliver”) means, with respect to a specified quantity of Product of specified attributes, the confirmed transfer via applicable Registry or other system for such specified Product from the applicable Seller to the applicable Buyer.

(xvii) “End User” means any individually and accurately-identified natural person who has been authorized by you to use some applicable scope of end user features and functionality of the CerQlar Platform. For the avoidance of doubt, each End User shall be an actual individual human person with identity confirmed by you and accurately given in any communication or interaction with the Service.

(xviii) “Fee(s)” means the charges owed by the Client for the Services provided by CerQlar, as set out in your Order Form.

(xix) “Intellectual Property Rights” means any and all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary right anywhere in the world.

(xx) “Inventory” means all or part of the set of Product(s) owned by you, which may be managed within the Service.

(xxi) “Order” or “Order Form” means the CerQlar (online) form completed by you requesting Subscription to the Services by which you agree to subscribe under the stated, commercial, general and other terms. 

(xxii) “Personal Data” means any information deemed “personal data” or “personal information” (or analogous variations of such terms) under Applicable Law, including any information relating to an identified or identifiable natural person.

(xxiii) “Premium Services” means the Services offered under a tiered service model by CerQlar against payment of fees and any applicable Transaction costs; including but not limited to: (A) contracting services (to issue electronic trade contracts on the CerQlar Platform between you and the Trade Counterparty using third party technology including electronic signature); (B) position management services (to aggregate, report and visualize current, past and projected positions of Client in various Products based on the Client’s Trade Information and Client’s Inventory); (C )Inventory management services (to manage and earmark certificates in Registries where Client holds an account); (D) CerQlar API and custom ETRM integration services; (E) dedicated Client Account services; (F) inventory optimization services. 

(xxiv) “Product” (and “Products”) means each energy attribute certificate and other certificate or commodity product as to which the CerQlar Platform provides any Service.

(xxv) “Promo Subscription” means the offering of Free Subscription plus certain Premium Services or features thereof at no additional costs for a limited time. CerQlar shall at its sole discretion determine the duration for the Promo Subscription. By the end of the Promo Subscription time offering the Subscription will either be upgraded according to an order confirmation or downgraded back to the original Subscription type. 

(xxvi) “Addendum” means any addendum to these Terms, as adopted or amended by CerQlar from time to time, describing the operations, procedures and rules with respect to any Product or category of Products or Service as described in the addendum.

(xxvii) “Proposed Trade” means a proposed Trade between you and a Trade Counterparty for the sale and Delivery (on one or more delivery dates), by the applicable proposed Seller, and the purchase and Acceptance, by the applicable proposed Buyer, of a quantity of Product of specified attributes. For the avoidance of doubt, (a) a Proposed Trade is not yet executed, (b) the terms of a Proposed Trade may be subject to further adjustment, and (c) neither we nor the Service have any role at any time in matching the proposed Seller and the proposed Buyer in the Proposed Trade. Upon execution of the applicable Trade Agreement by the proposed Trade parties, a Proposed Trade becomes a Trade.

(xxviii) “Registry” (and “Registries”) means, with respect to each Product and as available via the CerQlar Platform, an applicable nationally-appointed issuing body, including its rules,  as specified in a Trade and  through which a Seller is obliged to perform its applicable Trade obligations.

(xxix) “Registry Access Information” means, with respect to a Registry, a Party’s access credentials, API keys and other information necessary to access such Registry by or on behalf of such Party.

(xxx) “Position Management” means a stand alone module within the Cerqlar Platform, that utilizes inventory and trade services of one Product class to provide the user a comprehensive view of current Product inventory and future obligations, including imports & exports.

(xxxi) “Position Subscription” means the Subscription to the Position Management stand alone module  including the following features: administration, user access, trade lifecycle management, position management, forecasting, trade book upload, inventory management and one (1) Product class.

(xxxii) “Seller” means, with respect to a Trade (or Proposed Trade), the party to such transaction that has agreed to sell (or is proposed to agree to sell) the specified quantity of Product of specified attributes for Delivery.

(xxxiii) “Service(s) ” means, (set of) CerQlar Platform features and functionality (-ies) and Additional Service(s) (including but not limited as support, trainings/onboardings, custom integrations) provided by CerQlar to which you Subscribe from time to time.

(xxxiv) “Settlement” (and “Settle”) means, with respect to a Trade, the confirmation of:  one or more payment(s) received by the Seller,  one or more Deliveries of a specified quantity of the applicable Product of specified attributes from the applicable Seller to the applicable Buyer and  the transfer and/or cancellation of any one or more Deliveries of specified quantity of Product of specified attributes. For the avoidance of doubt, a Trade is finally Settled upon the confirmation of all of the foregoing with respect to the entire quantity of the applicable Product of specified attributes set forth in the applicable Trade Information.

(xxxv) “Subscribed Registry” means each Registry, as made available by us to you for access via the CerQlar Platform from time to time during the Subscription Term.

(xxxvi) “Subscription” means your authorization to access, for a period of time, the Service and CerQlar Platform with  any other provisioned Additional Service(s) as applicable from time to time. CerQlar offers three types of Subscriptions: (A) Free Subscription; (B) Promo Subscription; and (C) Premium Subscription, as defined in the Terms.

(xxxvii) “Subscription Term” means the duration of your Subscription as specified in your Order.

(xxxviii) “Trade” means an agreement entered into by Client and a Trade Counterparty for the sale and Delivery (on one or more delivery dates), by the applicable Seller, and the purchase and Acceptance, by the applicable Buyer, of a specified quantity of Product of specified attributes. For clarity, a Trade is a binding transaction between the Trade Parties on definitive terms specified in the applicable Trade Agreement.

(xxxix) “Trade Agreement” means, with respect to a Trade, the definitive documentation specifying all applicable Trade Information and all other terms and conditions with respect to such Trade, that each Trade Party has duly executed. A Trade Agreement may be in the form of  a written document as to which all applicable Trade Information has been populated; or  a specification of all applicable Trade Information together with reference to an agreed set of all other terms and conditions with respect to such Trade.

(xl) “Trade Counterparty (or Trade Party)” means, with respect to each Trade (or Proposed Trade), the counterparty (or proposed counterparty) to the transaction. For a Trade (or Proposed Trade) as to which you are the Buyer, the Trade Counterparty is the Seller. For a Trade (or Proposed Trade) as to which you are the Seller, the Trade Counterparty is the Buyer.

(xli) “Trade Information” means, with respect to a Trade as to which you are a Trade Party, any and all information relating to such Trade that is submitted to the Service via the CerQlar Platform, including any information provided as part of a forward book import. Trade Information includes, as applicable, information with respect to each Trade Party, the applicable Product, specified quantity and terms of Delivery, Acceptance and Settlement.

(xlii) “Trade Recap” means, the process within the CerQlar Platform to recapitulate a Trade executed outside of the CerQlar Platform between you and the Trade Counterparty. 

(xliii) “Transaction(s)” means settlement instructions initiated by you through the CerQlar platform requiring an external party or system to act or otherwise acknowledge in order to complete the instruction. Specifically this includes: a) Trade Recap with another platform member; b) electronic contracts issued as instructed by the Client in scope of Trade capture for subsequent electronic signature by Trade Counterparty; c) delivery (transfers, exports and moves) and cancellation actions through API-connected registries. d) electronic invoicing where a system generated invoice is sent to an external system.

A Transaction is subject to additional fees if not included in the Subscription or exceeds the number of allocated Transactions in the Subscription. A Transaction is billable only to the initiator of such Transaction and only when the Transaction has been successfully completed. For the avoidance of doubt, the counterparty who completes the Transaction but did not initiate this transaction (Trade acceptor in scope of a Trace Recap Transaction, counterparty signatory in scope of contracting Transaction, and receiver of the certificates/ cancellation statements) will not be invoiced for the billable Transaction. Additionally, any Transaction that, for any reason, is not completed is not a billable Transaction. 

II. Inconsistencies. In the event of any inconsistency between these Terms and any applicable Registry rules, the applicable Registry rules will prevail.

III. Interpretation. Each definition used in these Terms includes the singular and the plural, and reference to the neuter gender includes the masculine and feminine where appropriate. English language words used in these Terms intend to describe Dutch legal concepts only and the consequences of the use of those words in English law, the law of the U.S. or any state, or any other foreign law shall be disregarded. The headings to the Sections of these Terms are for convenience of reference and shall not affect the meaning or interpretation of these Terms. Unless the context clearly indicates otherwise, the word “including” when used in these Terms means “including but not limited to,” the word “include” means “include, without limitation,” the words “third-party” or “third party” means “any person other than either Party or any of their Affiliates” and the words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import when used in these Terms refer to these Terms as a whole and not to any particular provision of these Terms. These Terms shall not be construed or interpreted against any Party due to such Party’s being deemed to have drafted it.