Demand Response Terms of Use

APX MARKETSUITE®

TERMS OF USE

(DEMAND RESPONSE PROGRAMS)

Last modified April 2012

The following are the Terms of Use governing use of APX MarketSuite® by clients of a demand response program (the “Demand Response Program”) that uses APX MarketSuite® to interface with its clients. APX MarketSuite® is a service offered by APX Power Markets, Inc., (“APX PM”). These Terms of Use are in addition to the APX General Terms of Use (the “General Terms of Use”) applicable to your use of the Web Site (as defined below). In the event these Terms of Use conflict or are inconsistent with the General Terms of Use, the provisions of these Terms of Use shall control for the services referenced herein. Nothing herein shall amend, modify or in any way change the terms that are applicable to your participation in the Demand Response Program, in particular whatever agreement you may have with the organization sponsoring the Demand Response Program you are accessing via APX MarketSuite® (the “DR Program Sponsor”).

  1. ACCEPTANCE OF TERMS.

    1. The use by you and your Users (as defined below) of APX MarketSuite® and the APX MarketSuite® website located online at https://marketsuitedr.apx.com/ (or such other website as APX PM may notify you is the location of APX MarketSuite®) (the “Web Site”) is subject to the following Terms of Use, which constitute a binding contract between you and your Users, as users of APX MarketSuite®, and APX PM as owner and host of APX MarketSuite® (you and APX PM are sometimes individually referred to herein as a “Party”, and collectively as “the Parties”). BY USING OR ACCESSING APX MARKETSUITE®, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE AS MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS HEREOF, AND YOU AGREE TO TAKE AFFIRMATIVE RESPONSIBILITY FOR THE COMPLIANCE OF YOUR USERS WITH THESE TERMS OF USE. If you do not agree to these Terms of Use, you and your Users may not access or otherwise use APX MarketSuite®.
    2. You can review the current version of the Terms of Use at any time at the Web Site. CONTINUED USE AND ACCESS OF APX MARKETSUITE® BY YOU AND/OR YOUR USERS AFTER MODIFICATION OF THE TERMS OF USE SIGNIFIES YOUR AGREEMENT TO BE BOUND BY THE MODIFIED TERMS OF USE, AND YOUR AGREEMENT TO TAKE AFFIRMATIVE RESPONSIBILITY FOR THE COMPLIANCE OF YOUR USERS WITH THESE MODIFIED TERMS OF USE. In addition, when using APX MarketSuite®, you shall be subject to any rules, guidelines and/or operating procedures imposed on you by the DR Program Sponsor.

  2. DESCRIPTION OF SERVICE.

    1. APX MarketSuite® provides a web-based access system that allows you and your Users to participate in the Demand Response Program that is operated by the DR Program Sponsor. APX PM does not administer the Demand Response Program and takes no responsibility for the program. If your registration is accepted by APX PM and the DR Program Sponsor, you and your Users will be authorized to use APX MarketSuite® to access the Demand Response Program.
    2. APX PM reserves the right, in its sole discretion, to modify, augment, segment, reformat, reconfigure or otherwise alter at any time the content or methods of transmission of APX MarketSuite® or these Terms of Use and create new types or versions of APX MarketSuite® or these Terms of Use.
    3. APX PM shall provide you with at least seven (7) days’ prior notice of material changes to APX MarketSuite® or these Terms of Use, and such changes shall be effective upon the date set forth in the notice, which may be given by any means including, without limitation, posting on the Web Site, or by electronic or conventional mail. All other changes shall be effective upon their being posted on the Web Site. Any use of APX MarketSuite® by you after a change has gone into effect shall be deemed to constitute acceptance of such change.

  3. AUTHORIZED USER.

    1. The rights and obligations of these Terms of Use shall run to the named Parties and their successors in interest and authorized assigns. You shall ensure that any of your owners, trustees, partners, members, officers, directors, employees and/or any other agents to whom you have provided access to APX MarketSuite® (collectively, the “Users”) agree to comply with these Terms of Use.
    2. You acknowledge and agree that the rights and licenses provided under these Terms of Use are solely for your benefit and are to be exercised only in connection with your and your Users’ use of APX MarketSuite®. Without limiting the generality of the foregoing, except as set forth in this Section 3 and in Section 15, you may not transfer or sublicense your rights or licenses, or any portion thereof, to any third party.

  4. OWNERSHIP AND USE OF DATA AND APX MARKETSUITE®.

    1. You acknowledge that (i) one or a combination of APX PM and the DR Program Sponsor is and shall remain the owner of all data in APX MarketSuite® and (ii) APX PM and its affiliates are and shall remain the sole owners of the APX MarketSuite® operating system, including any components, modifications, adaptations and copies thereof. You acknowledge that once you transmit data to APX MarketSuite®, such data becomes the property of one or a combination of APX PM and the DR Program Sponsor. Except in accordance with APX PM’s normal operating procedures, data in APX MarketSuite® cannot and will not be deleted, removed, or otherwise expunged or segregated, including in the event you terminate your use of APX MarketSuite® or are terminated pursuant to Section 7 hereof.
    2. You acknowledge and agree that APX PM is, and shall remain, the sole owner of any registration data required to access or use APX MarketSuite®, including without limitation any and all intellectual property rights therein.
    3. You acknowledge and agree that any and all software used in providing, accessing (other than commercially available third party internet browsers) or using APX MarketSuite® (“Software”) is proprietary software of APX PM. Except as provided herein, you shall not obtain, have or retain any right, title or interest in or to APX MarketSuite® or the Software or any part thereof.
    4. The rights granted to you are solely defined by these Terms of Use as in effect from time to time and include, but are not limited to, permission to use APX MarketSuite® as set forth herein. You agree (i) not to contest or challenge APX PM or the DR Program Sponsor’s ownership of, as the case may be, the data comprising APX MarketSuite®, the Software and associated intellectual property rights, and (ii) not to take any action that would infringe, misappropriate, constitute unfair competition with respect to, or otherwise violate APX PM or the DR Program’s rights in, as the case may be, the data comprising APX MarketSuite®, the Software or associated intellectual property rights.
    5. You will not use APX MarketSuite® for any unlawful purpose or in an unlawful manner. You shall prevent the use or copying of APX MarketSuite® and any other supporting materials by your Users except as permitted by these Terms of Use, and will take all appropriate steps and precautions to safeguard and protect the access, use and security of APX MarketSuite® and your User access information from unauthorized users.
    6. APX PM grants you non-exclusive permission to access, retrieve and download data from APX MarketSuite® subject to these Terms of Use, which grant shall not be effective until (i) you have: (1) completed and submitted to APX PM the online registration available on the Web Site and (2) accepted these Terms of Use on the Web Site, and (ii) APX PM, in its sole discretion, has accepted your registration.
    7. APX PM reserves all rights in APX MarketSuite® not expressly granted to you in these Terms of Use.
    8. To APX PM’s knowledge, neither APX MarketSuite® nor the Software infringes any intellectual property rights of third parties.

  5. NO FEES.

    Pursuant to a separate agreement between APX PM and the DR Program Sponsor, APX MarketSuite® is provided to you by APX PM free of charge. APX PM reserves the right to charge fees for your use of APX MarketSuite® should the terms of such agreement change. Nothing in this Section 5 shall relieve you of whatever obligations, if any, that you may have under your separate agreement with the DR Program Sponsor pursuant to which you participate in the Demand Response Program.

  6. TAXES.

    You will pay all sales, use, value added taxes, and other consumption taxes, personal property taxes and other taxes and charges, if any, imposed by any governmental entity (other than those based on APX PM’s net income) (collectively, “Taxes”) related to the use of APX MarketSuite® unless you furnish satisfactory proof of exemption.

  7. TERM AND TERMINATION.

    1. Term. These Terms of Use become operative on the date on which you indicate on the Web Site that you agree with and accept the Terms of Use and shall continue in effect until APX PM or you terminates access to APX MarketSuite® pursuant to Section 7(b), (c) or (d) hereof.
    2. Termination by APX PM.
      1. Prior to accepting your registration to become a user of APX MarketSuite®, APX PM may in its sole discretion reject your registration and terminate your access to APX MarketSuite® immediately.
      2. APX PM may terminate your access to APX MarketSuite® upon giving five (5) days notice to you if you are in Default pursuant to Section 8(a)(i) hereof.
      3. APX PM may terminate your access to APX MarketSuite® immediately in the event of any Default pursuant to Sections 8(a)(ii) through (a)(vii) hereof.
      4. APX PM may terminate your access to APX MarketSuite®, for any reason, by providing at least sixty (60) days written notice to you. Your obligation to pay any and all Fees due under the Operative Documents and these Terms of Use at the time of termination of use shall survive such termination of use.
    3. Termination by You. You may terminate use of APX MarketSuite® (i) for any reason, by providing at least sixty (60) days written notice to APX PM, or (ii) upon giving five (5) days notice to APX PM if APX PM is in Default pursuant to Section 8(a)(i) hereof.
    4. Termination Required by Law. APX PM shall terminate your access to, or you shall cease use of, APX MarketSuite® if required to do so by any applicable local, state, national, or international law, statute, regulations, ordinance or other means of establishing legal rights and obligations (“Applicable Law”), or by any order or other decision of a court of law, arbitral panel or governmental agency. At least sixty (60) days notice of said termination of access or cessation of use of APX MarketSuite® shall be given by the Party terminating the access to, or ceasing the use of, APX MarketSuite® under this subsection, unless a shorter notice period is required by Applicable Law or the relevant order or decision.
    5. Survival of Terms. The terms of Sections 4 (Ownership and Use of Data and APX MarketSuite®), 6 (Taxes), 7 (Term and Termination), 8(b) & (c) (Default; Remedies), 12 (Limitation of Liability), 14 (Indemnification), 15 through 23 and any other provisions meant to survive termination or expiration of these Terms of Use, shall survive termination of the Terms of Use.
    6. Reinstatement.
      1. Upon your request, APX PM, in its sole discretion, may reinstate your access to APX MarketSuite® after termination for your Default, upon APX PM’s determination that you have resolved such Default and upon receipt of your full payment of any amounts due prior to the termination.
      2. PM shall reinstate your access to APX MarketSuite® after termination for your Default if directed to do so as a result of the outcome of a dispute resolution proceeding under these Terms of Use.

  8. DEFAULT; REMEDIES.

    1. Default. The occurrence of any of the following shall be considered a “Default”:
      1. A Party fails to perform any of its duties or obligations under these Terms of Use, other than those set forth below in Sections 8(a)(ii) through (a)(vii), which default is not cured to the satisfaction of the other Party in its sole discretion within five (5) days after notice is given specifying such default.
      2. You or your Users alter, tamper with, damage or destroy (1) APX MarketSuite® or any portion thereof, or (2) the data of other APX MarketSuite® users.
      3. You or your Users use APX MarketSuite® in any manner that, directly or indirectly, violates any Applicable Law.
      4. All or substantially all of your assets are attached or levied under execution (and you do not discharge the same within sixty (60) days thereafter); a petition in bankruptcy, insolvency, for reorganization or a similar arrangement is filed by or against you (and you fail to secure a stay or discharge thereof within sixty (60) days thereafter); you are insolvent and unable to pay your debts as they become due; you make a general assignment for the benefit of creditors; you take the benefit of any insolvency action or law; the appointment of a receiver or trustee in bankruptcy for you or your assets if such receivership has not been vacated or set aside within thirty (30) days thereafter; or your dissolution or other failure to exist if you are an entity.
      5. You or your Users falsify or misrepresent any data or other information input into APX MarketSuite® or otherwise provide incorrect data or other information to APX MarketSuite® in contravention of these Terms of Use.
      6. You make any false or inaccurate representation in these Terms of Use.
      7. You receive written notice of a violation of the performance of any particular material term or condition of these Terms of Use three (3) or more times during any twelve (12) month period, regardless of whether such violations are ultimately cured.
    2. Remedies. Upon the occurrence of any Default, APX PM shall have the following rights and remedies, in addition to those stated elsewhere in these Terms of Use and those allowed by Applicable Law or in equity, any one or more of which may be exercised without further notice to you:
      1. You acknowledge that money damages would not adequately compensate APX PM in the event of a breach by you of your obligations hereunder and that injunctive relief may be essential for APX PM to adequately protect itself hereunder. Accordingly, you agree that, in addition to any other remedies available to APX PM, including but not limited to any monetary damages, APX PM shall be entitled to seek injunctive relief in the event you are in breach of any covenant or agreement contained herein.
      2. Upon termination of the use of APX MarketSuite®, you shall be obligated to pay to APX PM all monies due to it, which shall include any interest and costs and expenses due hereunder.
      3. You acknowledge that APX PM may suspend your access to APX MarketSuite®.

  9. INTELLECTUAL PROPERTY.

    1. The APX MarketSuite® brand, APX MarketSuite® and any and all content of APX MarketSuite® are protected by copyright, trademark and/or other intellectual property laws and any unauthorized use of such intellectual property or information or APX MarketSuite® may violate such laws related to their protection. Except as expressly provided herein, none of APX PM or any of its affiliates grants any express or implied right or license of any kind to you under any patents, copyrights, trademarks, or trade secret information with respect to such intellectual property and/or information and/or APX MarketSuite®.
    2. Except as expressly provided by copyright law or these Terms of Use, you may not copy, distribute, modify, publish, sell, transfer, license, transmit, display, participate in the transfer or sale of, or create derivative works of, any of such intellectual property or information or APX MarketSuite®, either in whole or in part, other than:
      1. reports or other data created for use by or otherwise disseminated to you by APX MarketSuite®,
      2. as may be required or compelled by Applicable Law,
      3. information that you or your Users have provided to APX MarketSuite®, or
      4. as APX PM may agree in its sole discretion.
    3. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.

  10. REPRESENTATIONS AND WARRANTIES.

    Throughout the term of these Terms of Use, you represent and warrant to APX PM that:

    1. If other than a natural person, you are duly organized, validly existing, and in good standing under the laws of the jurisdiction of your formation;
    2. You have all corporate and other authority and all regulatory and other consents, approvals and authorizations necessary for you to legally (i) enter into and perform your obligations under these Terms of Use and (ii) engage in all of your activity on or relating to APX MarketSuite®;
    3. The signatory of these Terms of Use has the authority to execute these Terms of Use on your behalf, and these Terms of Use are binding on and enforceable against you in accordance with their terms;
    4. You will only use APX MarketSuite® for participating in the Demand Response Program;
    5. You meet all of the requirements for participation in the Demand Response Program, as set forth in the Demand Response Program documents and your agreement(s) with the DR Program Sponsor; and
    6. All data and other information provided to APX MarketSuite® or APX PM by you and/or your Users are either owned legally and beneficially by you or you otherwise have the right to provide such data and other information, and all such data and other information are true and correct in all material respects.

  11. DISCLAIMER OF WARRANTY.

    1. You acknowledge that the data contained in APX MarketSuite® has been gathered by APX PM from sources believed by it to be reliable, including you, your Users, the DR Program Sponsor and other users of APX MarketSuite®. APX PM does not warrant that the information in APX MarketSuite® is correct, complete, current or accurate, nor does APX PM warrant that the Software will be error-free or bug-free. APX PM has no obligation to audit, validate or otherwise verify any information contained in APX MarketSuite®.
    2. APX MARKETSUITE® IS PROVIDED “AS IS,” AND APX PM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THESE TERMS OF USE OR THE ADEQUACY OR PERFORMANCE OF APX MARKETSUITE®, AND APX PM HEREBY DISCLAIMS TO THE EXTENT PERMITTED BY LAW ANY SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE. APX PM DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER SHALL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT THE PROVISION OF SUCH SERVICES SHALL ALWAYS BE EXECUTED WITHOUT ERRORS OR OMISSIONS.
    3. APX PM shall not be responsible for the acts or omissions of any user who inputs data into APX MarketSuite® or from whom data is obtained for inclusion on APX MarketSuite®.
    4. You are solely responsible for the protection, security and management of usage and security of your computer network. APX PM shall not compensate you for damages incurred due to violations of the security of your computer network, nor shall you make deductions or set-offs of any kind for Fees resulting therefrom.

  12. LIMITATION OF LIABILITY.

    YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF APX MARKETSUITE® AND THE WEB SITE. APX PM’S SOLE LIABILITY FOR APX MARKETSUITE®, SERVICE DISRUPTION, PERFORMANCE OR NONPERFORMANCE BY APX PM OR IN ANY WAY RELATED TO THESE TERMS OF USE, REGARDLESS OF WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, IS LIMITED, TO THE EXTENT PERMITTED BY LAW, TO $2,500. APX PM SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES REGARDLESS OF CAUSE, NOR FOR ECONOMIC LOSS, LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, PERSONAL INJURIES OR PROPERTY DAMAGES SUSTAINED BY YOU OR ANY THIRD PARTIES, EVEN IF APX PM HAS BEEN ADVISED BY YOU OR ANY THIRD PARTY OF SUCH DAMAGES. APX PM DISCLAIMS ANY LIABILITY FOR ERRORS, OMISSIONS OR OTHER INACCURACIES IN ANY PART OF APX MARKETSUITE®, OR THE REPORTS OR OTHER INFORMATION COMPILED OR PRODUCED BY AND FROM OR INPUT INTO APX MARKETSUITE®. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE AND PROTECT APX PM, ANY SUBSIDIARIES OR OTHER CORPORATE AFFILIATES THEREOF, THEIR SUCCESSORS AND ASSIGNS, AGENTS, CONTRACTORS, SERVICE PROVIDERS AND VENDORS FROM ANY AND ALL LIABILITY WITH RESPECT TO ANY DAMAGES OR INJURIES INCURRED BY YOU AS THEY RELATE TO APX MARKETSUITE®.

  13. LOGINS AND PASSWORDS

    You agree to assume sole responsibility for the security of any logins and passwords issued to you and your Users for accessing APX MarketSuite®. You agree to immediately notify APX PM of any suspected unauthorized use of your login(s) or password(s) or any other suspected breach of security.

  14. INDEMNIFICATION.

    You agree to defend, indemnify and hold harmless each of APX PM and its subsidiaries and affiliates and each of their respective owners, trustees, partners, members, officers, directors, employees, agents and representatives (each an “Indemnified Party”) from and against any violations by you or your Users of any Applicable Law and against any and all claims (including third-party claims), causes of action, whether in contract, tort or any other legal theory (including strict liability), demands, damages, costs, liabilities, losses and expenses (including reasonable attorneys’ fees and court costs) of any nature whatsoever (“Losses”) arising out of, resulting from, attributable to or related to the use of APX MarketSuite® by you or your Users, or your or your Users’ violation of these Terms of Use, including, but not limited to, any Losses arising out of or related to: (a) any inaccuracy, error, or delay in or omission of (i) any data, information, or service, or (ii) the transmission or delivery of any data, information, or service; (b) any interruption of any such data, information, or service (whether or not caused by such Indemnified Party); or (c) any financial, business, commercial or other judgment, decision, act or omission based upon or related to the information on APX MarketSuite®. Notwithstanding the foregoing, you shall not defend, indemnify or hold harmless an Indemnified Party from and against any Losses to the extent that the Losses are caused by the conduct of such Indemnified Party that a court of law or arbitral panel has determined amounted to gross negligence or willful misconduct.

  15. NO ASSIGNMENT, TRANSFER OR ENCUMBRANCE BY YOU.

    Neither these Terms of Use nor any rights hereunder may be assigned, sublicensed, encumbered, pledged, mortgaged or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law, without the express prior written consent of APX PM, which consent shall not be unreasonably withheld, conditioned or delayed.

  16. RELATIONSHIP OF PARTIES.

    Each Party is an independent contractor under these Terms of Use. Neither Party has the authority to execute documents that purport to bind the other, and nothing in these Terms of Use will be construed to constitute a joint venture, fiduciary relationship, partnership or other joint undertaking.

  17. NO THIRD PARTY BENEFICIARIES.

    These Terms of Use are for the sole and exclusive benefit of each Party and its successors and permitted assigns, and except as set forth in Section 14, no third party will have any rights under these Terms of Use or the Operative Documents whatsoever.

  18. FORCE MAJEURE.

    Neither Party shall be deemed to have breached any provision of these Terms of Use as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, floods, strikes or other labor disturbances, riots, embargoes, transportation contingencies, fuel shortages, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences that are beyond the claiming Party’s reasonable control and which, by the exercise of due diligence, the claiming Party is unable to overcome or avoid or cause to be avoided; provided, however, that no such occurrences shall excuse your obligation to pay amounts due hereunder by the applicable due date.

  19. SEVERABILITY.

    If any part of these Terms of Use is held to be unenforceable or illegal by a court, arbitration panel or governmental administrative agency, such holding shall not affect the validity of the other parts of the Terms of Use, which shall at all times remain in full force and effect.

  20. WAIVER.

    The waiver of a breach or the failure to require at any time performance of any provision of these Terms of Use will not operate or be interpreted as a waiver of any other or subsequent breach nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by a Party of any provision, condition or requirement of these Terms of Use shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

  21. NOTICES.

    All notices permitted or required under these Terms of Use shall be in writing and shall be delivered in person, by email, facsimile, or first class, registered or certified mail, postage prepaid, or by overnight courier service to the following addresses or such other address as either Party may specify in writing:

    If to APX PM:

    APX Power Markets, Inc.
    224 Airport Parkway, Suite 600
    San Jose, CA 95110
    Attn: Demand Response Account Manager
    Facsimile: (408) 517-2985
    Email:

    With a copy to:

    APX, Inc
    111 River Street, Ste. 1204
    Hoboken, NJ 07030
    Attn: Contract Administration
    Facsimile: (201) 748 7901
    Email:

    If to you:

    To the address provided at the time of registration, as updated by you from time-to-time

    Service shall be effective on the earlier of actual receipt or the second business day after the day of mailing via first class mail. For service of notice via facsimile, it shall be deemed received on the day said notice was sent to the other Party. For service of notice via email, it shall be deemed received when acknowledgement of its receipt has been given by the Party due to receive the notice.

  22. GOVERNING LAW AND DISPUTE RESOLUTION.

    1. These Terms of Use shall be governed exclusively by the laws of the State of New York without regard to its rules on conflicts of laws.
    2. The Parties shall first attempt in good faith to settle any controversy or claim arising out of or relating to these Terms of Use, or the breach thereof, or any other claim or controversy between the Parties arising out of APX MarketSuite® (any such claim, a “Dispute”), by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures then in effect. At least thirty (30) days prior to initiating such mediation, the Party seeking to mediate (“Demanding Party”) shall give the other Party written notice describing the claim and the amount as to which it intends to initiate the action, as well as providing all supporting documentation available to the Demanding Party.
    3. Any Dispute that has not been resolved by mediation as provided herein within forty-five (45) days after initiation of the mediation procedure shall be finally resolved by arbitration administered by the AAA under its Commercial Arbitration Rules and Supplementary Procedures for Online Arbitration then in effect. The arbitrator(s) will have no authority to award punitive damages nor any other damages not measured by a prevailing Party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of these Terms of Use. Neither Party nor the arbitrator(s) may disclose the existence or results of any arbitration hereunder without the prior written consent of all Parties.
    4. Each Party shall be responsible for the payment of all of its costs associated with the resolution of said dispute whether in arbitration or before a court of law, including but not limited to any filing fees, arbitrator fees, its attorneys’ fees and other costs incurred in such proceeding, provided that if a dispute is initiated in bad faith, as determined by the arbitrator(s), the Party initiating the dispute shall be responsible for all of the other Party’s defense costs, and provided further that APX PM shall be entitled to payment of its costs and expenses, including without limitation attorneys’ fees, to the extent set forth in Section 14.
    5. The Parties agree that neither may bring a claim nor assert a cause of action against the other, in any forum or manner, more than one (1) year after the cause of action accrued, except where the Party could not have reasonably discovered the wrong giving rise to the claim within one (1) year.

  23. ENTIRE AGREEMENT.

    The General Terms of Use and these Terms of Use represent the entire agreement of the Parties with respect to the subject matter thereof and hereof and supersede any conflicting terms in any other prior or contemporaneous oral or written agreements and any and all other communication.

APX MarketSuite® Terms of Use