(DEMAND RESPONSE PROGRAMS)
ACCEPTANCE OF TERMS.
DESCRIPTION OF SERVICE.
- 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.
OWNERSHIP AND USE OF DATA AND APX MARKETSUITE®.
- 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.
- 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.
- 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.
- To APX PM’s knowledge, neither APX MarketSuite® nor the Software infringes any intellectual property rights of third parties.
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.
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.
TERM AND TERMINATION.
- Termination by APX PM.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Default. The occurrence of any of the following shall be considered a “Default”:
- 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.
- You or your Users use APX MarketSuite® in any manner that, directly or indirectly, violates any Applicable Law.
- 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.
- 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.
- 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.
- You acknowledge that APX PM may suspend your access to APX MarketSuite®.
- Default. The occurrence of any of the following shall be considered a “Default”:
- 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®.
- reports or other data created for use by or otherwise disseminated to you by APX MarketSuite®,
- as may be required or compelled by Applicable Law,
- information that you or your Users have provided to APX MarketSuite®, or
- as APX PM may agree in its sole discretion.
- You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
REPRESENTATIONS AND WARRANTIES.
- 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;
- You will only use APX MarketSuite® for participating in the Demand Response Program;
- 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
- 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.
DISCLAIMER OF WARRANTY.
- 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®.
- 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®.
- 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.
LIMITATION OF LIABILITY.
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.
NO ASSIGNMENT, TRANSFER OR ENCUMBRANCE BY YOU.
RELATIONSHIP OF PARTIES.
NO THIRD PARTY BENEFICIARIES.
If to APX PM:APX Power Markets, Inc.224 Airport Parkway, Suite 600San Jose, CA 95110Attn: Demand Response Account ManagerFacsimile: (408) 517-2985Email: Contractadministration@apx.com
With a copy to:APX, Inc111 River Street, Ste. 1204Hoboken, NJ 07030Attn: Contract AdministrationFacsimile: (201) 748 7901Email: Contractadministration@apx.com
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.
GOVERNING LAW AND DISPUTE RESOLUTION.
- 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.
- 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.