EXHIBIT 10.25
AUTOMATED POWER EXCHANGE
MASTER SERVICE AND PARTICIPATION AGREEMENT
THIS AUTOMATED POWER EXCHANGE MASTER SERVICE AND PARTICIPATION AGREEMENT
("MSPA") is made and entered into this 7th day of February, 2002 by and between
Automated Power Exchange, Inc., a California corporation ("APX"), and Bear
Valley Electric Services ("Participant"). APX and Participant are sometimes
referred to herein individually as "Party" and collectively as the "Parties."
WHEREAS, APX operates electronic information exchanges in which
Participants are able to buy and sell electricity and other products and
services, and
WHEREAS, the Participant desires to enter into this APX MSPA in order to
be able to utilize APX Services from time to time in accordance with the terms
hereof.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants hereinafter set forth, the Parties agree and intend to be bound
as follows:
1. DEFINITIONS AND INTERPRETATION.
1.1. Definitions. Except as otherwise defined herein, initially capitalized
terms used in this APX MSPA have the meanings set forth in Section 2.1
of the APX Master Terms and Conditions of Service, together with
certain additionally defined terms in all applicable Tabs, as amended
and modified from time to time.
1.2. Interpretation. The rules of interpretation set forth in Section 2.2
of the APX Master Terms shall apply to this MSPA.
1.3. Conflicts. In the event of a conflict between the provisions of this
MSPA and the APX Master Terms or any applicable Tabs, the provisions
of this MSPA shall control and take precedence.
2. USE OF APX SERVICES.
2.1. Upon execution of this APX MSPA and satisfaction of the conditions of
eligibility set forth in Section 3 of the APX Master Terms, the
Participant shall be eligible to use the APX Services.
2.2. This APX MSPA does not obligate the Participant or any of its
affiliates to use any APX Services.
3. TERMS AND CONDITIONS OF SERVICE.
3.1. The APX Master Terms, including all applicable Tabs, are incorporated
herein and made a part of this APX MASPA.
3.2. APX and the Participant agree that:
a.) The APX Master Terms, inclusive of all applicable Tabs, this
MSPA, and all rules, orders, procedures, or protocols duly
promulgated from time to time by APX shall govern the
Participant's use of any APX Service.
b.) APX and the Participant will abide by the APX Master Terms and
all rules, orders, procedures and protocols duly promulgated by
APX in respect of all matters relating to the Participant's use
of any APX Service.
c.) The Participant's eligibility to use the APX Services is at all
times subject to the APX Master Terms and all rules, orders,
procedures, and protocols duly promulgated by APX, and may be
revoked in accordance with the APX Master Terms.
3.3. APX may amend or modify the APX Master Terms from time to time in
accordance with the procedures set forth in Section 9 of the APX
Master Terms. Any such amendment or modification shall be binding upon
the Participant in accordance with the provisions set forth in Section
9 of the APX Master Terms.
4. TERMS AND TERMINATION.
This APX MSPA shall become effective on the date set forth in the introductory
paragraph and shall remain in effect unless terminated in accordance with the
provisions set forth in Section 11 of the APX Master Terms.
5. REPRESENTATIONS AND WARRANTIES.
5.1. Each Party represents and warrants to the other Party the following:
a.) Authority. The execution, delivery, and performance by each
Party of this APX MSPA are within the Party's powers, have been
duly authorized by all necessary corporate or other action, and
do not and will not violate the terms and conditions in the
Party's governing documents, any material contract to which the
Party is a party, or any applicable laws; and
b.) Binding Obligations. This APX MSPA constitutes the legal, valid,
and binding obligations of each Party, enforceable against the
Party in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy or similar laws affecting
the enforcement of creditor's rights generally or by equitable
principles relating to enforceability of contracts made by and
for competent parties.
5.2. The representations and warranties above are intended to be continuing
representations and warranties with the expectation that each Party
can and will rely upon their continuing applicability.
6. TRANSFER AND ASSIGNMENT.
6.1. Neither Party shall assign any of its rights nor delegate any of its
obligations under this APX MSPA without the prior written consent of
the other Party, which consent shall not be unreasonably withheld or
delayed. Any prohibited assignment or delegation shall be void.
6.2. Notwithstanding the foregoing, this APX MSPA shall be binding upon and
shall inure to the benefit of the Parties and their respective
successors and permitted assigns.
7. ELECTRONIC CONTRACTING.
All submitted applications, schedules, bids, confirmations, changes to
information on file with APX, notices and other communications conducted via
electronic transfer, including direct computer link, bulletin board, e-mail,
facsimile or any other means established by APX, shall invoke the same legal
rights, responsibilities, and obligations set forth in the APX Master Terms as
if executed in written format. APX and Participant waive any defense under the
Statute of Frauds, or similar provision of law, in connection therewith.
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8. MISCELLANEOUS
8.1 Notices. Except as otherwise specified herein or in the APX
Master Terms, notices shall be in writing and transmitted by
mail, overnight courier, or facsimile. Notices to APX shall be
addressed to: Automated Power Exchange, Inc. 5201 Great America
Parkway #522 Santa Clara, California 95054 Attention: Contracts
Department (408) 517-2100. Notices to Participant shall be
addressed to the representative specified in Appendix 1 of this
APX MSPA.
8.2 Entire Agreement. This APX MSPA and all attachments hereto, and
the APX Master Terms with applicable Tabs embody the entire
agreement and understanding of the Parties and superseded all
prior or contemporaneous agreements and understandings of the
Parties, verbal or written, relating to the subject matter hereof.
8.3 Governing Law. THIS APX MSPA SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, EXCLUDING ANY CHOICE OF LAW RULE THAT DIRECTS THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, IRRESPECTIVE OF
THE PLACES OF EXECUTION OR OF THE ORDER IN WHICH SIGNATURES OF
THE PARTIES ARE AFFIXED OR OF THE PLACE OF PERFORMANCE.
8.4 Independent Parties. Nothing in this APX MSPA shall be construed
or represented as creating a partnership, trust, fiduciary or any
similar relationship among the Parties. Except as set forth in
the APX Master Terms, no Party is authorized to act on behalf of
the other Party and none shall be considered the agent of the
other.
8.5 No Third-Party Beneficiaries. This APX MSPA is made and entered
into for the sole protection and legal benefit of the Parties and
their permitted successors and assigns. No other person shall be
a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this APX
MSPA.
8.6 Amendment. Subject to Section 1.3 above, this APX MSPA is subject
to modification of the APX Master Terms. In all other respects,
this APX MSPA shall be modified or amended only by a written
instrument executed by the Parties and shall not be modified by
course of performance or any usage of trade.
8.7 Severability. The illegality or unenforceability of any provision
of this APX MSPA or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this APX MSPA or
any instrument or agreement required hereunder.
8.8 Counterparts. This APX MSPA may be executed in any number of
separate counterparts, which shall be deemed to constitute one
instrument. The authorized representative of the Parties have
executed this APX Master Service and Participation Agreement as
of the date first set forth above:
AUTOMATED POWER EXCHANGE INC. BEAR VALLEY ELECTRIC SERVICES
/s/ JOEL A. DICKSON
By: /s/ [SIGNATURE ILLEGIBLE] By: Joel A. Dickson
------------------------- -------------------------
Title: SR. VP Title: Vice President
---------------------- ------------------------
Date: 2/15/02 Date: February 7, 2002
----------------------- -----------------------
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APPENDIX 1
PARTICIPANT: BEAR VALLEY ELECTRIC SERVICE
REPRESENTATIVE CONTACT: RAYMOND P. JUELS
630 EAST FOOTHILL BLVD.
SAN DIMAS, CA 91773
RJUELS@SCWATER.COM
(909) 394-3600, EXT. 679
(909) 394-3768 - FACSIMILE
EMERGENCY CONTACT: JOEL A. DICKSON
630 EAST FOOTHILL BLVD.
SAN DIMAS, CA 91773
JADICKSON@SCWATER.COM
(909) 394-3600, EXT. 636
(909) 394-1382 - FACSIMILE
BILLING CONTACT: RAYMOND P. JUELS
630 EAST FOOTHILL BLVD.
SAN DIMAS, CA 91773
RJUELS@SCWATER.COM
(909) 394-3600, EXT. 679
(909) 394-3768 - FACSIMILE
AGENT CONTACT: COMPLETE ENERGY SERVICES
650 EAST PARKRIDGE AVENUE, #110
CORONA, CA 92879
COMPENERGY@COMPENERGY.COM
DAVE KOLK
COMPLETE ENERGY SERVICES
650 EAST PARKRIDGE AVENUE, #110
CORONA, CA 92879
DKOLK@COMPENERGY.COM
(909) 280-9411
(909) 280-9821 - FACSIMILE
(909) 283-1097 - CELLULAR
JUNE SKILLMAN
COMPLETE ENERGY SERVICES
650 COMPLETE ENERGY SERVICES, #110
CORONA, CA 92879
JSKILLMAN@COMPENERGY.COM
(909) 280-9411
(909) 280-9821 - FACSIMILE
(909) 290-3749 - CELLULAR
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AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 1
PARTICIPANT APPROVED COUNTER-PARTY TRADING
1. SCOPE.
1.1. This Tab Number 1 to the APX Master Terms and Conditions of Service
sets forth the requirements, procedures, and protocols for the
effective use of Participant Approved Counter-Party Trading services.
Together with other applicable Tabs, the Master Service and
Participation Agreement, and the APX Master Terms and Conditions of
Service, all of which are expressly incorporated by reference, this
Tab constitutes the entire agreement necessary to conduct Participant
Approved Counter-Party Trading in the APX Markets.
1.2. References to a Section shall mean a Section of this Tab 1, unless
otherwise agreed. In the event of conflict between this Tab 1 and the
APX Master Terms, this Tab 1 shall control and take precedence. The
Participant Approved Counter-Party Trading service is an APX Market
within the meaning of that defined term.
2. DEFINITIONS.
2.1. The following defined terms supplement the Master Terms and are
applicable to Participant Approved Counter-Party Trading in APX
Markets in the United States and Canada.
2.1.1. "Delivery" means the actual or required exchange of electricity
pursuant to a Contracted Order or otherwise.
2.1.2. "Monthly Invoice" means the APX electronic invoice summarizing
a Participant's transactional activity for the month.
3. APPROVED COUNTER-PARTY CONTRACTING.
3.1. APX Participants may Contract in APX Markets via the Market Window on
a Participant Approved Counter-Party basis for some or all of their
APX Product Specification Sheet requirements, as each Participant may
elect. In registering for Participant Approved Counter-Party Trades, a
Participant will indicate what counter-party entities that registering
Participant is accepting as a trading partner. A Participant may amend
its Participant Approved Counter-Party registration statement via the
APX Market Window from time to time as it may elect, thereby
increasing or decreasing the number of Participant Approved
Counter-Parties for that amending Participant. Changes are effective
immediately upon receipt by APX. A Participant may also choose to use
Participant Approved Counter-Party services solely, or in conjunction
with, APX Managed Credit Services as described in Tab 3 to these APX
Master Terms.
3.2. Participant Approved Counter-Party Trading must be by the mutual
consent of both parties. When mutual consent is indicated to APX, the
Participant's Market Window software will be enabled such that only
the bids and asks of approved counter-parties may be Contracted,
though all Orders from all Participants are viewable. As with APX
Managed Credit Services, screen entries by others are anonymous to the
Participant until Contracted by the Market Engine. Unlike APX Managed
Credit Services, counter-party identity is revealed to each side after
Contracting.
3.3. Approved Counter-Party Trading is unsecured and all Participants to
such trading expressly agree to the following provisions:
a.) each Participant is responsible to itself and the other party for
full performance of the Contracted Order, whether entailing
obligations to make or take Delivery, or actions to ensure
transmission rights affecting Delivery;
b.) each Participant is free to alter the terms of the Contracted
Order with their Participant Approved Counter-Party after the
Contracted Order has been accepted by the Market Engine, in the
same manner that they can alter any bilateral obligation;
c.) each Participant bears the risk of the other's default in making
Delivery or taking Delivery;
d.) each Participant remains responsible for informing APX if the
Contracted Order or any modification causes a change in APX
Scheduling Services, and for payment of all applicable Scheduling
fees occasioned thereby;
e.) each Participant acknowledges that in any dispute concerning a
Participant Approved Counter-Party Contracted Order(s), APX
cannot be a Party to the dispute, and can only confirm what the
Market Engine recorded as the Contracted Order; and
f.) a Participant may not cycle their Participant Approved
Counter-Party screen feature on and off as a way of discerning
counter-party identity prior to Contracting. The ability to
engage in such "toggling" is software limited as discussed in the
APX Product Specification Sheet.
3.4. A Participant is permitted to use APX Services in part through
Participant Approved Counter-Party Trading as it may elect, and as
long as it has at least one Approved Counter-Party. In the event that
a Participant shifts to APX Managed Credit Services, triggering
collateralization of trades encumbering credit, the provisions of the
APX Master Terms and Tab 3 (APX Managed Credit Services) relating to
Monetary Reserve Facility procedures apply, and control what actions
APX and Participants are required to take.
3.5. A Participant who chooses to use the APX California Scheduling Service
(APX SC ID) and/or the APX Qualified Scheduling Entity (QSE) Service
must continue to maintain a Monetary Reserve Facility as described in
Tab 3 (APX Managed Credit Services) even when they engage in
Participant Approved Counterparty Trading.
4. PAYMENT.
4.1. Supplementing the Tab 4 description of APX Market Settlement and
Billing processes, the following provisions specific to Participant
Approved Counter-Party Trading applies to affected APX Participants:
a.) Participant Approved Counter-Party transactions will be recorded
and displayed for each Participant within the APX Market Window
and the counter-party disclosure report prepared for each
Participant.
b.) In the event of a Participant Approved Counter-Party default, APX
will not act to cure the default or minimize its effects on the
parties to the defaulted Order or assure that payment to the
non-defaulting party is made. APX' sole responsibility to the
parties will be to confirm what the Contracted Order was as
recorded by the APX Market Engine.
c.) Participants are responsible to APX for the payment of fees
associated solely with the amount of Contracted Order energy
recorded by the APX Market Engine, regardless of the energy
actually delivered and accepted. The Monthly Invoice will display
the amount of APX fees owed for all energy transacted, while
showing only APX-settled units of energy.
5. ADDENDA.
5.1. Unless expressly addressed, nothing herein shall be construed as a
waiver of the Representations and Warranties given by the Parties in
Section 4 of the APX Master Terms, or of the Code of Conduct
requirements of Section 8 of the APX Master Terms.
5.2. For Participant Approved Counter-Party Trading only, the following
Sections of the APX Master Terms and Conditions of Service do not
apply:
a.) 3.4 requiring that a Monetary Reserve Facility (MRF) be
established.
b.) Tab 3 to these APX Master Terms addressing APX Managed Credit
Services.
* * * * * * * * * * * * * * *
PAGE 1 OF 1
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS OF SERVICE
1. SCOPE.
1.1. These APX Master Terms set forth the eligibility and operating
requirements for utilization of the APX Services and Products.
Together with the applicable APX Product and Service Tabs, these
Master Terms are incorporated in and made a part of each Participant's
Master Service Agreement, and may be revised from time to time. The
current version of these APX Master Terms is available to Participants
via the APX Internet Site or upon request from APX.
1.2. These APX Master Terms apply to each APX Market in which Participants
are able to utilize APX Services or buy and sell Products. Additional
terms, conditions, and requirements that apply to specific APX
Services and Products are set forth in individual Tabs to these Master
Terms, and are expressly incorporated into these APX Master Terms.
1.3. In the event of a conflict between these Master Terms and any
applicable Tab, the applicable Tab requirements shall control.
2. DEFINITIONS.
2.1. Defined terms specific to individual APX Products and Services can be
found in the applicable Tab. Initially capitalized terms used in these
APX Master Terms and elsewhere in the Tabs shall have the meanings set
forth below:
2.1.1. "Affiliate" means any person or entity that is directly or
indirectly controlled by, in control of, or under the common
control of another.
2.1.2. "APX" means Automated Power Exchange, Inc., a California
corporation.
2.1.3. "APX Internet Site" means the APX' site on the Internet
at address www.apx.com.
2.1.4. "APX Managed Credit Trading" means the trading activity of
APX Market Participants under which said Participant posts
credit which partially or wholly supports its Contracted
position in the event of default by that Participant.
2.1.5. "APX Market" means a set of available Products and/or
Services for which there is a specific subject matter Tab.
2.1.6. "APX Market Tab" means one or more subject matter
supplements to these APX Master Terms which sets forth
additional terms, conditions, and requirements applicable
to the described APX Services and Products.
2.1.7. "APX Market Engine" means the active server and software
that administers APX Services and is owned and maintained
by APX.
2.1.8. "APX Market Window" means the software that provides the
electronic interface between Participants and the APX
Market Engine.
2.1.9. "APX Master Service Agreement" means the Master Service and
Participation Agreement entered into between the
Participant and APX.
2.1.10. "APX Product Specification Sheet" means that written
descriptive statement of APX energy, capacity,
transmission, and ancillary service products available to
Participants, revised from time to time, and published on
the APX website at www.apx.com.
2.1.11. "APX Registration Statement" means the enrollment form that
each Participant must complete prior to being eligible to
use APX Services.
2.1.12. "APX Services" means the services and associated Products
that APX offers in each APX Market, as specified in the
applicable Market Tab or APX Product Specification Data
Sheets.
2.1.13. "Contract," "Contracted," and "Contracting" describes the
result of the APX Market Engine's matching one or more buy
Orders with one or more sell Orders.
2.1.14. "Contracted Order" means a contract that has been formed
between one or more Participants that have submitted buy
Orders and one or more Participants that have submitted
sell Orders upon being Contracted by the APX Market Engine.
2.1.15. "Control Area" means those facilities and intangible rights
and operations that are controlled by a Control Area
Operator.
2.1.16. "Control Area Operator" means the entity that performs
Control Area Services for a specific Control Area.
2.1.17. "Control Area Requirements" means all duly-constituted
rules or equivalents that apply or govern Control Area
Services, issued by proper authority.
2.1.18. "Control Area Services" means those services provided by
the Control Area Operator to stabilize the performance of
the electric grid.
2.1.19. "Depository" means Comerica Bank-California, a California
bank corporation, or a successor entity appointed by APX.
2.1.20. "FERC" means the Federal Energy Regulatory Commission or
its successor.
2.1.21. "Force Majeure" means an event or circumstance that is
beyond the reasonable control of the affected Party and
that could not have been avoided with the exercise of due
diligence.
2.1.22. "Governmental Authority" means any federal, state, or local
branch or unit of government, including FERC, SEC and CFTC,
and any entity that is subject to regulation by any
administrative agency as a public utility, including state
and regional ISOs, ISAs, and RTOs.
2.1.23. "Insolvency Proceeding" means any case, action, or
proceeding relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution,
winding-up, or any general assignment for the benefit of
creditors.
2.1.24. "Law" means any law, treaty, code, rule, regulation,
tariff, protocol, or judicial order binding upon APX, the
Depository, or a Participant.
2.1.25. "Monetary Reserve Facility" means the financial
arrangements made by a Participant in advance of
registration as an APX Managed Credit Trading Participant
using the APX Services.
2.1.26. "Order" means a Participant initiated buy Order or sell
Order.
2.1.27. "Participant" means a person or entity that meets the
eligibility requirements set forth in Section 3 below.
2.1.28. "Participant Approved Counter-Party Trading" means trading
activity under which a Participant selects its
counter-party from a Participant Approved Counter-Party
list, and for which the selecting Participant bears the
risk of counter-party default. The identity of the counter-
party is disclosed upon formation of the Contracted Order.
2.1.29. "Party" means APX or a Participant.
2.1.30. "Products" means all units or packages of electrical power,
including, but not limited to energy, capacity,
transmission, or ancillary services or derivatives
therefor, the purchase, sale and trading of which are
supported or facilitated by the APX Market Window and APX
Market Engine, as more particularly described in the APX
Product Specification Data Sheets published from time to
time. "Products" expressly excludes securities and futures
contracts of any kind, and the trading of securities and
futures contracts via the APX Market Window is prohibited.
"Products" expressly excludes "swaps" as defined in 17
C.F.R. Part 35.
2.1.31. "Termination Date" means the date on which a Participant's
APX Master Service Agreement is terminated.
2.2. In these APX Master Terms, unless the context otherwise requires:
2.2.1. Terms stated in the singular shall include the plural and
the masculine shall include the feminine and neuter, and
vice versa;
2.2.2. References to a Section, Exhibit, or Tab shall mean a
Section, Exhibit, or Tab of these APX Master Terms.
2.2.3. The words "includes" or including" shall mean "including
without limitation";
2.2.4. A reference to an agreement shall be to the agreement as
amended or modified as of the date of reference;
2.2.5. References to any Law or Control Area Requirement shall be
to such law or requirement as amended or modified as of the
date of reference;
PAGE 1 OF 6
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS OF SERVICE
2.2.6. Any reference to a "person" includes any individual,
partnership, firm, company, corporation, joint venture, trust
or organization whether or not possessing separate legal
personality;
2.2.7. Any reference to a day, week, or month shall be deemed to be a
reference to a calendar day, week, or month; and
2.2.8. The terms "electricity" and "energy" are used interchangeably
herein.
3. CONDITIONS OF ELIGIBILITY TO USE THE APX SERVICES
3.1. The certifications and representations contained in Section 4
below must be true and correct with respect to such person.
3.2. The person must obtain and maintain at its cost all required
hardware, software, and communications links that are
necessary to operate the APX Market Window and communicate
with APX in accordance with these APX Master Terms.
3.3. The person must enter into and remain in compliance with an
APX Master Service Agreement.
3.4. The person must establish and maintain a Monetary Reserve
Facility that covers its monetary reserve requirements for APX
Managed Credit Trading in accordance with the provisions of
Tab 3 to these APX Master Terms.
3.5. The person must submit and update as required, a correct and
complete APX Registration Statement encompassing all
registered APX Services.
3.6. The person must be in compliance with all requirements of Law
and Governmental Authority, including Control Area
Requirements, if applicable.
3.7. When properly registered, APX will notify the person that it
meets the eligibility requirements of a Participant for the
designated APX Services, and will provide to such Participant
its assigned system password(s).
4. REPRESENTATIONS AND WARRANTIES
4.1. Each Participant represents and warrants to APX the following:
4.1.1. The Participant has complied with all conditions of
eligibility.
4.1.2. The Participant is not in violation of the Code of Conduct set
forth in Section 8.
4.1.3. The Participant has not committed any act that would
constitute a violation of these APX Master Terms.
4.1.4. The Participant will treat all information and materials
provided or disclosed by APX as "APX Confidential Information"
when designated as such, and if non-disclosure is not required
by public law.
4.1.5. If the Participant will be selling electricity directly to any
end-use customer, or purchasing power on its own behalf as an
end-use customer, the Participant has complied with all
requirements applicable to its area for retail suppliers
and/or purchasers of electricity and related services.
4.1.6. No registered load of the Participant is ineligible for
wholesale transmission service under the Federal Power Act.
4.1.7. The Participant is required to purchase and/or sell
electricity, or enter into forward contracts for the same, in
all places where the contract is made or will be performed.
4.1.8. The Participant has all licenses, authorizations, consents,
and approvals to own its assets, conduct business, and to
perform its obligations under the APX Master Service Agreement
and these APX Master Terms.
4.1.9. Each Participant that submits an Order has or can obtain good
title to the underlying energy or transmission rights that is
the subject of the sell Order, and warrants that the
Participant will make or take delivery of the energy as the
case may be.
4.1.10. Where required, the Participant has complied with all Control
Area Requirements.
4.2. APX represents and warrants to Participants the following:
4.2.1. APX is qualified to do business in those jurisdictions
necessary to carry out all of its responsibilities under these
APX Master Terms.
4.2.2. APX has all licenses, authorizations, consents, and approvals
to own its assets, conduct business, and to perform its
obligations hereunder.
4.2.3. APX is the sole owner of APX Market Engine and Market Window
technology, and such technology does not infringe the patents
of others.
4.2.4. APX will treat all Participant registration data, financial
data, and APX Market activity and communications as
"Participant Confidential Information", whether designated as
confidential or not.
4.3. The representations and warranties set forth in Sections 4.1 and 4.2
are continuing representations and warranties, and are reaffirmed by
each Participant and APX each time the Participant uses any APX
Service.
5. MONETARY RESERVE REQUIREMENTS
5.1 In order to secure its APX Market obligations, each Participant that
is not engaged in Participant Approved Counter-Party Trading shall
establish and maintain a Monetary Reserve Facility that meets the
requirements of Tab 3 to these APX Master Terms. The Monetary Reserve
Facility may be in the form of an irrevocable and unconditional letter
of credit or cash deposit in a monetary reserve account at the
Depository.
5.2 A Monetary Reserve Facility is not required for an APX Participant
engaged in Participant Approved Counter-Party trading in any APX
Market.
5.3 APX shall only initiate a draw upon the Participant's Monetary Reserve
Facility under the circumstances described in Tab 3 and Tab 4.
5.4 APX reserves the right to set and modify the Monetary Reserve Facility
criteria from time to time in its reasonable discretion.
6. APX PRODUCTS AND SERVICES
6.1. Registered Participants shall be eligible to utilize the APX Market
Window to purchase, sell or trade the APX products described in the
APX Product Specification Sheets, or use the APX Services, each of
which is more fully described in the indicated Tab to these APX Master
Terms.
6.2. Participant Approved Counter-Party Trading: Tab 1
6.3. Schedule Coordination Services: Tab 2
6.4. APX Credit Management Services: Tab 3
6.5. APX Settlement and Billing Services: Tab 4
6.6. APX Product and Service Fee Schedule: Tab 5
6.7. APX Telephone Brokering Service: Tab 6
PAGE 2 OF 6
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS OF SERVICE
7. SOFTWARE LICENSING AGREEMENT
7.1. Subject to the terms and conditions of these Master Terms and any
modifications contained in the Master Service Agreement, APX grants
to each registered Participant a restricted, nonexclusive,
nontransferable right to use the APX Market Window software (in
executable code form only) at the Participant's designated sites on
up to ten (10) designated computers.
7.2. Without the prior written consent of APX, no Participant shall (i)
copy all or any portion of the Market Window; (ii) decompile or
disassemble the APX Market Window or attempt to determine any source
code, algorithms, methods or techniques embodied in the Market
Window; (iii) modify, translate, or create any derivative works
based upon the Market Window; (iv) distribute, disclose, market,
sell, rent, lease, assign, sublicense, transfer, covey or pledge to
transfer the Market Window in whole or part to any third party; (v)
remove or alter any copyright, trademark, trade name or other
proprietary notices and legends appearing on or in copies of the
Market Window; (vi) allow remote access or transfer the Market
Window software to any computer other than the Participant's ten
designated computers; (vii) incorporate the APX Market Window into
any other program or product; (viii) use the Market Window other
than in accordance with these APX Master Terms. Participant
employees, Agents, Independent Contractors, and affiliates are
subject to the same exclusions to the extent that they are required
to use Participant's licensed Market Window.
7.3. As between APX and Participants, APX retains all right, title and
interest in and to the APX Market Window, including any derivative
works thereof. APX retains all right, title, and interest in its
Applications Program Interface ("API"), and shares title with
Participants in any API derivative works. Participant agrees not to
take any action to jeopardize, limit or interfere with APX'
ownership rights of the Market Window or derivative works thereof.
7.4. APX may from time to time deliver to Participants modifications or
new releases of the APX Market Window. Before doing so, APX will
provide notice to affected Participants. These APX Master Terms
shall apply to such modifications and/or new release as if part of
the original license grant. APX will fully support at its cost only
the current software release and the immediately preceding version.
7.5. Any APX Market Window software or documentation that is provided to
or on behalf of the United States of America, its agencies and/or
instrumentalities ("U.S. Government") is provided with Restricted
Rights as that term is used in Part 27 of the Federal Acquisition
Regulations ("FAR"). Use, duplication, or disclosure is subject to
all of the restrictions contained in the FAR, and any DOD or other
agency FAR supplements.
7.6. Each Participant must routinely monitor its market position(s) via
the APX Market Window, and promptly notify APX if it encounters any
material difficulty in using the APX Market Window. APX will
attempt to correct any material problems, errors, or bugs that are
reported, take reasonable steps to mitigate the effects of any such
problems, and forward any resulting modifications to affected
Participants. Under no circumstances will APX be responsible for any
costs or damages that result from a Participant's inability to use
the APX Market Window, except as set forth in Section 14 of these
APX Master Terms. In the event that the APX Market Window
malfunctions or becomes inoperable due to the negligent or wrongful
act or omission of a Participant or a condition associated with
Participant's hardware, software, or data communications equipment,
the Participant shall reimburse APX for all costs incurred by APX in
fixing such malfunction or inoperability.
8. CODE OF CONDUCT
8.1. At all times during the term of its APX Master Service Agreement,
APX and each participant shall comply with all applicable Laws and
Control Area Requirements that relate to or have an impact upon the
parties performance hereunder.
8.2. No Participant shall take any action that would undermine or
improperly manipulate any APX service, any Participant, the
Depository, or APX. This includes, but is not limited to,
self-dealing in one's own name or through intermediaries established
or used for that purpose.
8.3. No Participant shall take any action that would cause APX or other
Participant to violate any Law, Control Area Requirement, or these
Master Terms.
8.4. Each Participant shall at all times respond to any communication
from APX and/or their respective agents or representatives in a
timely manner. To facilitate communications timeliness, each
Participant will regularly monitor its market position(s) via the
APX Market Window.
8.5. APX and each Participant shall permit their market communications to
each other to be recorded in accordance with state and federal law.
8.6. No Participant shall own or control or hold with power to vote more
than ten percent of APX shares.
8.7. APX and its employees and directors shall be prohibited from buying
or selling a commodity or product for which APX operates an
exchange.
8.8. APX and its employees and directors shall be prohibited from owning
or controlling a material interest in any entity that buys or sells
commodities or products in the APX Markets, or in the markets of any
Affiliates.
8.9. APX and its employees and directors shall be prohibited from serving
as an employee, agent, representative or Board member of any entity
that is an APX Market Participant.
8.10. APX shall at all times maintain and enforce a code of conduct for it
directors, employees, and contractors. APX shall make available to
any Participant a copy of the current APX internal code of conduct
upon written request.
9. AMENDMENT AND MODIFICATION OF TERMS
9.1. APX may, in its reasonable discretion, modify or amend these APX
Master Terms from time to time. In such event, APX will transmit
notice to Participants at least thirty days before the date on which
such amendment or modification will go into effect.
9.2. Any modification or amendment to these APX Master Terms will be
prospective only and shall not apply to any Contracted Orders, but
shall be binding upon Participants and APX for all orders
consummated after the effective date of the amendment or
modification. Once a properly noticed amendment or modification
becomes effective, a Participant's submission of any Order or use of
any APX Service shall operate as an acceptance by such Participant
of, and agreement to be bound by, the amendment or modification.
9.3. Notwithstanding the foregoing, in the event of an emergency, as
determined by APX in its reasonable discretion, APX shall have the
right to modify the APX Master Terms and any applicable Tabs without
notice in order to respond to the emergency. Any such amendment
shall apply to all unperformed Contracted Orders, and to other
ongoing transactions and activities of APX Market Participants, as
circumstances warrant. To the extent practicable, APX will consider
all Participant's interests in an emergency and will act reasonably
during such emergency and in actions thereafter.
9.4. APX may, in its reasonable discretion modify its APX Product
Specifications Sheets and re-publish the same on the APX Internet
Site without giving the thirty days advance notice to Participants
applicable to contract terms modifications.
10. SUSPENSION OF ELIGIBILITY
10.1. APX may suspend the eligibility of a Participant to use one or more
of the APX Services at any time without liability of any kind to the
Participant if;
PAGE 3 OF 6
EFFECTIVE SEPTEMBER 2, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS OF SERVICE
a. the Participant fails to comply with any provision of the Code of
Conduct set forth in Section 8 above;
b. the Participant fails to satisfy any condition of eligibility set
forth in Section 3;
c. any representation or warranty made by the Participant in Section
4 ceases to be true and correct in any material way;
d. the Participant takes any action in derogation of APX' rights in
or to the APX Market Window;
e. the Participant fails to maintain an adequate Monetary Reserve
Facility (MRF) where required to do so to engage in APX Managed
Credit Trading, or acts to limit APX access to the Participant'
MRF; or
f. the Participant ceases to be solvent, voluntarily ceases
conducting business, or commences any Insolvency Proceeding.
10.2. In the event that APX suspends a Participant's eligibility to use APX
Services, APX may terminate the Master Service Agreement without
liability.
10.3. Upon suspension of a Participant under this Section, APX will notify
the Participant as soon as practicable, and the Participant will
continue to be responsible for all amounts owing in connection with
the Participant's use of APX Services.
11. TERMINATION OF THE APX MASTER SERVICE AGREEMENT
11.1. Termination by APX: APX may terminate a Participant's Master Service
Agreement at any time for the reasons stated in Section 10.1 above.
11.2. Terminated by Participant: a Participant may terminate its Master
Service Agreement at any time with written notice to APX of
Termination Date.
11.3. Effect of Termination:
a. the eligibility of the Participant to use APX Services shall
cease;
b. the provisions of the APX Master Terms and Service Agreement
shall remain effective until all financial obligations have been
discharged;
c. within 30 days after termination, the Participant must deliver or
destroy all copies of the APX Market Window and certify to the
same;
d. the Participant must immediately render payment for all amounts
owing under these APX Master Terms and will be entitled to
receive any amounts owing to the Participant by the next ordinary
payment receipt date established by these APX Market Terms;
e. the Participant will refrain from any action that would interfere
with APX' access to the Participant's Monetary Reserve Facility;
and
f. the provisions of these APX Master Terms requiring performance
after termination will be deemed effective and operative.
12. FORCE MAJEURE
12.1. No Party will be considered in default of any obligation if
prevented from fulfilling such obligation by Force Majeure.
Notwithstanding the foregoing, no Participant shall be excused from
any obligation to render payment due to APX in connection with the
use of APX Services, or from continuing to comply with the code of
conduct provisions of Section 8 that are unaffected by the
circumstances of the Force Majeure. Unless the nature of the product
defined in the APX Product Specification Sheet permits it, Force
Majeure shall NOT be claimed by any Participant based upon purely
economic considerations such as (i.) loss of Buyer's markets; (ii.)
buyer's inability to economically use or re-sell the purchased
energy product(s); (iii.) the loss of Seller's supply; or (iv.)
Seller's ability to sell the product to a different Buyer under more
attractive terms.
12.2. In the event of a Force Majeure that prevents a Party from
performing any of its obligations under these Master Terms, the
Party shall:
a. notify the other Party in writing as soon as commercially
practicable;
b. use commercially reasonable efforts to mitigate the effects of
such Force Majeure, and act to resume performance as soon as
possible;
c. not be entitled to suspend performance in any greater scope or
for any longer duration than reasonably required by the Force
Majeure;
d. keep the other Party apprised of the mitigation and restoration
efforts initiated by the Party;
e. provide written notice of the resumption of full performance to
the other Party.
12.3. Notwithstanding the foregoing, the settlement of any strike,
lockout, or labor dispute constituting a Force Majeure shall be
within the sole discretion of the Party involved in such labor
dispute, and the obligation to use commercially reasonable efforts
to resolve or remedy does not apply.
13. INDEMNIFICATION
13.1. To the fullest extent permitted by Law, each Participant shall
indemnify and hold harmless APX, its Affiliates, agents, officers
and employees from any and all claims, costs, and expenses incurred
by them to the extent caused wholly or in part by any act or
omission by the Participant, its Affiliates, agents, officers, and
employees, except to the extent such claim is caused by the
negligence or willful misconduct of APX. Each Participant's
obligation to indemnify under this Section shall survive termination
of the Participant's APX Master Service Agreement, and shall not be
limited in any way by amount or type of damages.
13.2. In addition to the foregoing, to the fullest extent permitted by
Law, each Participant shall also indemnify APX from any and all
claims caused wholly or in part by any error or omission in the
information that the Participant submits to APX for further
transmittal to a Control Area Operator.
13.3. To the fullest extent permitted by Law, APX shall indemnify and hold
harmless a Participant, its Affiliates, agents, officers and
employees from any and all claims, costs and expenses incurred by
them to the extent caused wholly or in part by any act or omission
of APX, its affiliates, agents, officers and employees, except to
the extent such claim is caused by the negligence or willful
misconduct of Participant, APX' obligation to indemnify under this
Section shall survive termination of Participant's APX Master
Service Agreement and shall at all times be subject to the Section
14 limitation of liability.
13.4. APX shall indemnify and hold harmless a Participant from all claims,
costs and expenses to the extent caused wholly or in part by APX'
breach of or infringement upon any third party's copyright,
trademark, patent or other intellectual property right.
14. LIMITATION OF LIABILITY
14.1. THE APX SERVICES ARE PROVIDED "AS IS" FOR USE IN AN ELECTRONIC
TRADING ENVIRONMENT. APX DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO APX SERVICES,
INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM ANY CLAIMED COURSE OF
DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE, APX MAKES
NO REPRESENTATIONS THAT THE APX SERVICES WILL OPERATE WITHOUT
INTERRUPTION OR BE ERROR FREE.
PAGE 4 OF 6
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS OF SERVICE
14.2. EXCEPT FOR DISCLAIMED SOFTWARE DESIGN AND/OR PERFORMANCE, ANY
CLAIM ARISING FROM ALL ALLEGATION OF APX' NEGLIGENCE, OR FROM AN
ALLEGATION OF BREACH OF CONTRACT BY APX, SHALL BE SUBJECT TO THE
FOLLOWING LIMITATIONS: (I) NO SUCH CLAIM MAY BE BROUGHT FOR APX ACTS
OR FAILURES TO ACT OCCURRING DURING THE FIRST 90 DAYS OF
PARTICIPANT'S REGISTRATION AS AN APX PARTICIPANT; (II) NO SUCH CLAIM
RELATING TO A SINGLE SET OF FACTS OR OCCURRENCES MAY BE BROUGHT
AGAINST APX IF IT INVOLVES LESS THAN $5,000 (PARTICIPANTS SHALL NOT
COMBINE CLAIMS INVOLVING DIFFERENT SETS OF FACTS AS A MEANS OF
AVOIDING THIS LIMITATION); (III) APX' MAXIMUM LIABILITY TO ANY
PARTICIPANT FOR ANY AND ALL SUCH CLAIMS IN A GIVEN CALENDAR YEAR
SHALL NOT EXCEED THE LESSER OF $50,000 OR SIX MONTHS OF APX FEES
MEASURED BY THE MOST RECENTLY COMPLETED SIX FULL CALENDAR MONTHS
PRECEDING THE EVENT OF LIABILITY; AND (IV) ANY SUCH CLAIM MUST BE
BROUGHT WITHIN SIX MONTHS AFTER THE EVENT GIVING RISE TO THE CLAIM.
IF ANY SUCH CLAIM IS NOT BROUGHT WITHIN SUCH SIX MONTH PERIOD, THE
RIGHT TO DO SO SHALL BE DEEMED WAIVED, IRRESPECTIVE OF ANY DIFFERENT
TIME LIMIT SET FORTH IN ANY STATUTE OF LIMITATIONS THAT OTHERWISE
WOULD APPLY, WITH RESPECT TO CLAIMS THAT ARE SUBJECT TO THE LIMITS
SET FORTH IN THIS SECTION 14.2, EACH PARTICIPANT ACKNOWLEDGES THAT;
(I) IT MAY HAVE SUCH A CLAIM THAT INVOLVES LESS THAN $5,000 AND (II)
IT MAY HAVE CLAIMS IN ANY GIVEN CALENDAR YEAR THAT INDIVIDUALLY OR
COLLECTIVELY INVOLVE MORE THAN $50,000 AND EXPRESSLY WAIVES ITS
RIGHT TO PURSUE ANY SUCH CLAIM TO THE EXTENT THAT IT EXCEEDS SUCH
LIMITS.
14.3. NO PARTY SHALL BE LIABLE TO ANOTHER FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT,
TORT, STRICT LIABILITY STATUTORY LIABILITY OR OTHERWISE, ARISING OUT
OF OR IN CONNECTION WITH THE USE OF APX SERVICES UNDER THESE MASTER
TERMS, ANY APPLICABLE TABS, OR THE MASTER SERVICE AGREEMENT,
INCLUDING ANY LOSS OF PROFITS, EARNINGS, REVENUE, USE, DATA,
CONTRACT, OR GOODWILL, EVEN IF A PARTY HAS KNOWLEDGE OF THE
POSSIBILITY OF SUCH DAMAGES.
16. DISPUTES RESOLUTION
15.1. In all disputes arising from a Participant's use of any APX
Services, the aggrieved Party shall notify the other Party(s) in
writing of the nature of the dispute with as much detail as
possible. A duly-authorized representative of each Party possessing
full authority to resolve the dispute shall meet in person or by
telephone within 14 days after the date of written notice in order
to reach an agreement resolving the dispute. If the Parties'
representatives cannot resolve the dispute or agree upon a written
corrective action plan within 7 days after their initial meeting, or
any mutual extension of time, then either Party may request
contractual arbitration as provided in Section 15.2. Neither Party
shall initiate arbitration unless the process described in this
Section 15.1 has been employed or waived.
15.2. Any controversy or claim between the Parties arising out of or
relating to APX Services under these Master Terms, including
applicable Tabs, shall be subject to mandatory binding arbitration
in accordance with the United States Arbitration Act, and under the
auspices and the commercial rules and procedures of the American
Arbitration Association then in effect. If APX is a party to the
dispute, the arbitration shall be conducted in San Francisco,
California; if APX is not a party to the dispute, the arbitration
can be conducted at such place and time as the Parties may elect.
Each Party may serve a single request for production of documents,
and any disputes regarding document production shall be resolved by
the arbitrator(s). The arbitrators shall give effect to statutes of
limitation in determining any claim, and shall deliver a written
opinion setting forth findings of fact, conclusions of law and the
rationale for the decision. The arbitrators shall reconsider the
decision only once upon proper motion and at the expense of the
Party requesting reconsideration. Judgement upon the decision
rendered may be entered in any court having jurisdiction. Section 4
requirements of confidentiality apply to the arbitration proceeding,
all evidence taken, and the opinion of the arbitrators. Confidential
information may be disclosed in camera and under seal to the
arbitrators and in any subsequent judicial action to enforce the
arbitration award or order.
15.3. No provision of this Section 15 shall limit the right of either
Party to obtain provisional or ancillary remedies from a court of
competent jurisdiction before, after, or during pendency of any
arbitration, except that no Party may seek to avoid binding
arbitration. The exercise of a remedy does not waive the right of
either Party to resort to arbitration.
16. MISCELLANEOUS
16.1. APX has entered into the APX Master Service Agreement and agreed to
provide APX Services based on and in reliance upon the continuation
of Laws and regulatory policies in effect as of the date of each
Participant's Master Service Agreement. If such Laws change in a
manner that renders any portion of these Master Terms, applicable
Tabs, or the Master Service Agreement illegal, unenforceable, or
financially impracticable, then APX shall have the right to modify
the Master Service Agreement or terminate it altogether as
circumstances may reasonably require.
16.2. Any waiver of any provision under these APX Master Terms, applicable
Tabs, or the Master Service Agreement must be in writing and will
not be implied by any usage of trade, course of dealing or course of
performance. Any delay in exercising a right or remedy under these
terms shall not imply a waiver of those rights and remedies. Any
express waiver of such rights and/or remedy shall not be construed
as a continuing waiver.
16.3. In the event that one or more of the provisions of these APX Master
Terms, applicable Tabs, or the APX Master Service Agreement shall
for any reason be held to be unenforceable, such unenforceability
shall not affect any other provision, and the contract shall be
construed as if the unenforceable provisions had never been
contained in the contract terms.
16.4. APX and each Participant expressly acknowledge that time is of the
essence in the performance of their respective obligations under
these APX Master Terms, applicable Tabs, and the APX Master Service
Agreement.
16.5. APX and each Participant shall comply with all Laws and Control
Area Requirements as they relate to performance hereunder.
16.6. The remedies provided under these APX Master Terms and Master
Service Agreement shall be cumulative and not exclusive, and the
election of one remedy shall not preclude pursuit of other remedies.
In arbitration a Party may seek any remedy generally available under
governing law.
16.7. THE APX MASTER SERVICE AGREEMENT, THESE APX MASTER TERMS, AND ALL
APPLICABLE TABS SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ANY CHOICE OF
LAW RULES THAT DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION IRRESPECTIVE OF THE PLACE OF EXECUTION OR PERFORMANCE.
Unless APX is not a party, any legal action or proceeding with
respect to these APX Master Terms, the Master Service Agreement, and
any applicable Tabs must be brought in the courts of the State of
California or if the United States in the Northern District of
California. By execution and delivery of the APX Master Service
Agreement, APX and each Participant consent for themselves and in
respect of their property, to the exclusive jurisdiction of those
courts. APX and each Participant irrevocably waive any objection
which they may now or hereafter have to the bringing of any action
or proceeding exclusively in California state or federal judicial
forums.
PAGE 5 OF 6
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS OF SERVICE
16.8. Nothing in these APX Master Terms, the APX Master Service Agreement, or
applicable Tabs shall be construed as creating a partnership, trust,
joint venture or any similar relationship between APX and any
Participant. Except as authorized by the procedures necessary to perform
certain APX Services described in the Schedule Coordinator Services Tab
(Tab 2), no Party is authorized to act on behalf of the other Party, and
none shall be considered the agent of the other.
16.9. These APX Master Terms, the APX Master Service Agreement and all
applicable Tabs are made and entered into for the sole protection and
legal benefit of the Parties, their successors and assigns. No other
person shall be a director or indirect legal beneficiary of, or have any
cause of action, claim, or entitlement in connection with APX Services.
No customer of Participant shall have any rights against APX in
connection with such Participant's use of any APX Service.
16.10. APX shall have the right to offset, or to direct the Depository to
offset, against any amounts owing to a Participant as a result of its
use of APX Services amounts owed to APX or other participants.
16.11. No party shall assign or delegate any of its rights or obligations under
the APX Master Service Agreement, these APX Master Terms, or applicable
Tabs, without the prior written consent of the other, which consent will
not be unreasonably withheld. Absent the prior written consent of the
other Party, any attempted assignment shall be void and of no force or
effect.
16.12. Any default under these APX Master Terms, the Master Service Agreement,
or applicable Tabs shall be considered a default of the others and shall
entitle the parties to exercise such rights as are available herein and
therein.
16.13. APX may establish such rules, orders, procedures or protocols related to
the APX Services as it deems reasonable and necessary from time to time,
and shall transmit such items to Participants via the APX Market Window.
Participants shall comply with requirements of such transmitted items,
whether such transmittals are actually reviewed, received or
acknowledged.
16.14. Each Party shall do all necessary acts and make, execute, and deliver
such written instruments as shall from time to time be reasonably
required to carry out the terms of these APX Master Terms, the APX
Master Service Agreement and applicable Tabs.
16.15. These APX Master Terms, the APX Master Service Agreement, and applicable
APX Tabs constitute the entire agreement and understanding of the APX
and each Participant, and merge and supercede all prior or
contemporaneous agreements, understandings, commitments, representations
and discussions relating to the subject matter hereof.
...................
PAGE 6 OF 6
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 2
CALIFORNIA SCHEDULING SERVICES
1. SCOPE.
1.1. This Tab to the APX Master Terms and Conditions of Service sets forth
the requirements, procedures, and protocols for the effective use of
APX California Scheduling Services. Together with other applicable
Tabs, the Master Service and Participation Agreement, and the APX
Master Terms and Conditions of Service, all of which are expressly
incorporated by reference, this Tab constitutes the entire agreement
necessary to obtain California Scheduling Services.
1.2. References to a Section shall mean a Section of this Tab 2, unless
otherwise agreed. In the event of conflict between this Tab 2 and the
APX Master Terms, this Tab 2 shall control and take precedence. APX
California Scheduling Service is an APX Market within the meaning of
that defined term.
2. DEFINITIONS.
2.1. "Ancillary Services" has the meaning set forth in the Independent
System Operator (ISO) Tariff.
2.2. "APX California Scheduling Service (APX SC ID)" means the service
described in Section 3.2.
2.3. "APX California Scheduling Service (Participant SC ID)" means the
service described in Section 3.3 and for which APX is acting as the
Participant's Scheduling Coordinator Agent.
2.4. "APX California Services" means the APX California products for
energy, capacity, transmission, ancillary services and green energy
tickets; APX California Scheduling Service (APX SC ID); and APX
California Scheduling Service (Participant SC ID).
2.5. "Congestion Zones" means the Zones and interconnection points that are
specified as congestion zones by the ISO from time to time.
2.6. "Control Area Operator" means the California ISO in California.
2.7. "Delivery Point" means the point at which electricity is injected into
the ISO Controlled Grid.
2.8. "Delivery Day" means a day on which delivery of energy occurs in the
time zone of the buyer or buyer's designee.
2.9. "Deviation" means the difference between Scheduled and metered
electric energy deliveries.
2.10. "End-Use Meter" has the meaning set forth in the ISO Tariff.
2.11. "Export" has the meaning set forth in the ISO Tariff.
2.12. "Generation Meter" has the meaning set forth in the ISO Tariff.
2.13. "Generator" means an entity that owns, operates, controls or has the
right to sell or dispose of output from a generating unit.
2.14. "Import" has the meaning set forth in the ISO Tariff.
2.15. "ISO" means the California Independent System Operator for APX
California Services.
2.16. "ISO Charges" means the authorized regulatory charges the ISO is
permitted to indirectly charge Participants via their Scheduling
Coordinator for grid operations and management, including but not
limited to charges for wheeling access.
2.17. "ISO Controlled Grid" is that part of the electricity transmission
system for which the ISO is authorized to regulate and control
performance reliability.
2.18. "Load" has the meaning set forth in the ISO Tariff.
2.19. "Meter Aggregation Service Provider" (MASP) means an entity hired by
the Participant and approved by APX that prepares Settlement Quality
Meter Data.
2.20. "Meter Data Management Agent" (MDMA) means an entity hired by the
Participant and approved by APX that provides meter installations,
meter reading, and contributes to the preparation of Settlement
Quality Meter Data.
2.21. "Net Physical Position" means the net quantity of energy to be
Delivered to or by a Registered Facility at any given time, taking
into account all of Participant's Contracted Orders and positions in
the APX Market.
2.22. "Pass-Through Charges" means all charges and taxes levied by a
Control Area Operator or any Governmental Authority in connection with
(I) the purchase, sale, delivery and use of the APX Products; or (ii)
the use of any APX Service, including Control Area Operator Charges,
taxes, fees, franchise fees, or utility user taxes, whether actually
levied or imputed.
2.23. "Pass-Through Payments" means all payments from a Control Area
Operator, or any other entity, to APX for a Participant in connection
with such Participant's use of APX Services, that APX agrees to accept
and pass on to the Participant.
2.24. "Receipt Point" means the point at which electricity is removed from
the ISO Controlled Grid.
2.25. "Registered Export" means an Export for which APX is designated as
the SC or SC Agent.
2.26. "Registered Facility" means any registered Generating unit, Load,
Export, Import or Transfer Point where APX is designated as the SC or
SC Agent.
2.27. "Registered Import" means an Import for which APX is designated as
the SC or SC Agent.
2.28. "Registered Transfer Point" means any Congestion Zone in which a SC
can transfer electricity to or from an APX SC ID or a Participant SC
ID in accordance with the Participant's Transfer Schedule indicated on
their APX Registration Statement.
2.29. "Schedule" has the meaning set forth in the ISO Tariff.
2.30. "Scheduling Coordinator" (SC) has the meaning set forth in the ISO
Tariff.
2.31. "Scheduling Coordinator Agent" (SC Agent) means a Participant SC ID
that has been certified by the ISO and for which APX is performing the
APX California Scheduling Service (Participant SC ID) behind this SC
ID.
2.32. "Settlement Quality Meter Data" (SQMD) means meter data that is
load-profiled (if necessary), adjusted for distribution line losses,
aggregated to the level at which Orders for a Registered Facility are
submitted, and submitted to the ISO in a specified format by a
required due date.
2.33. "Take-Out Point" has the meaning set forth in the ISO Tariff.
2.34. "Transfer Schedule" has the meaning set forth in the ISO Tariff.
2.35. "True-Up Amount" means the amount credited or debited to reflect
either SQMD or ISO Charges after delivery.
2.36. "Zone" has the meaning set forth in the ISO Tariff.
3. SCHEDULING SERVICES.
3.1. APX offers two types of Scheduling Coordinator Services: APX
California Scheduling Service (APX SC ID) and APX California
Scheduling Service (Participant SC ID), collectively known as the APX
California Scheduling Services.
3.2. Upon being designated by a Participant as the Scheduling Coordinator
for a Registered Facility, , APX will act as the Scheduling
Coordinator in compliance with ISO Tariffs then in effect. APX will
act to fulfill its obligations to develop Schedules under an APX SC
ID, transmit them to the ISO, and act on instructions received. A
Participant that desires to utilize the APX California Scheduling
Services must submit an APX Registration Statement, designating APX as
their Schedule Coordinator.
PAGE 1 OF 4
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 2
CALIFORNIA SCHEDULING SERVICES
The appointment of APX as a Participant's SC remains in effect until
terminated or modified by either Party. If APX is the SC for a
Participant engaged in block forward trading using Participant
Approved Counter-Party Trading, APX will encumber credit five (5) days
prior to the traded energy going to physical delivery. If APX is not
the SC at the time for encumbering monthly block forward credit, APX
will not encumber credit or submit physical delivery Schedules to the
Control Area Operator.
3.3. Upon being designated by a Participant as the Scheduling Coordinator
Agent for a Registered Facility, APX will act as the SC Agent in
compliance with ISO Tariffs then in effect. APX will act to fulfill
its obligations to develop Schedules under the Participant SC ID,
transmit them to the ISO and act on instructions received. A
Participant that desires to utilize the APX California Scheduling
Services must submit an APX Registration Statement, designating APX s
their Scheduling Coordinator Agent. The appointment of APX as a
Participant's SC Agent remains in effect until terminated or modified
by either Party.
3.4. A Participant for whom APX performs APX California Scheduling Services
must:
a. Complete a Registration Statement authorizing specific types of
Schedules to be submitted by APX;
b. Submit a fully balanced Schedule to APX in time for APX to submit
the Schedule to the ISO;
c. Provide sufficient information to APX to enable timely submission
of a complete Schedule, inclusive of quantity, Delivery Point,
Receipt Point and such other information as APX or the ISO
requires; and
d. Use the appropriate loss calculation methodology specified by ISO
Tariff in preparing Schedule data. Once a Participant has
provided APX with the information described above, APX will
submit a Schedule for the Participant's Registered Facility, at
each opportunity provided by the ISO. Such Schedules shall
reflect the Net Physical Position of each Registered Facility.
4. APX CALIFORNIA SCHEDULING SERVICE (APX SC ID) - OPERATIONAL REQUIREMENTS.
4.1. In addition to the eligibility requirements of Section 3 of the APX
Master Terms, to be eligible to use APX California Scheduling Service
(APX SC ID), a Participant must:
a. Designate APX as the Scheduling Coordinator for specified
Generators, Loads, Exports, Imports and Transfer Points in its
APX Registration Statement;
b. Provide all information that APX reasonably needs to comply with
the ISO Tariff; and
c. For Registered Loads, provide monthly energy consumption data,
peak energy demand data from interval meters, and the rate
schedule for that load under which it has taken service for the
preceding 12 months.
4.2. If any material modification is made to a Participant's Registered
Facility, the Participant shall inform APX by a written change to its
then current APX Registration Statement.
4.3. By virtue of its use of APX California Scheduling Service, each
Participant grants to APX all agency authority necessary to comply
with the ISO Tariff as a Scheduling Coordinator.
4.4. Each Participant has a contractual obligation to take or Deliver the
amount of energy specified in any Schedule submitted to the ISO by APX
on behalf of the registered Participant. In the event of a Deviation,
including a Deviation resulting from a Participant's failure to
Schedule a Delivery with APX, the Participant must pay a charge or
receive a credit, as the case may be, to reflect associated True-Up
Amounts and ISO Charges.
4.5. With respect to any Schedule that APX submits to the ISO on a
Participant's behalf, as well as related Deliveries required under
Schedules submitted, the Participant shall be solely responsible for
all charges imposed on APX by the ISO and all APX fees associated with
such Schedule or related Deliveries.
4.6. Except to the extent a Participant self-provides Ancillary Services,
for any Schedule that APX submits on behalf of a Registered Load or
Registered Export, the Participant shall be liable for its pro rata
portion of all charges for Ancillary Services that are incurred by all
APX Registered loads and Registered Exports. Such pro rata portion
shall be determined by a comparison of the relative Net Physical
Position of such Participant's respective Load and Exports.
4.7. In providing APX California Scheduling Service to a given Participant,
APX will endeavor to:
a. Submit required Schedules to the ISO using an APX SC ID.
b. Transmit Ancillary Service bids for Participant's Registered
Facility to the ISO, and pass ISO acceptance, instructions,
payments, fees, and charges, if any, back to the Participant.
c. Transmit error messages generated by the ISO's Schedule
validation checks to the Participant, as received by APX;
d. Transmit applicable messages sent by the ISO to the Participant,
as received by APX;
e. If applicable, relay Settlement Quality Meter Data provided by
the Participant (or its MDMA) to the ISO or equivalent;
f. If applicable, relay Settlement Quality Meter Data provided by
the ISO to the Participant (or its MDMA); and
g. Calculate, bill and collect from the Participant any Pass-Through
Charges owing, including imputed Control Area Operator charges.
h. Calculate, bill and collect from the ISO any Pass-Through
Payments owed to the Participant.
4.8. All communications (including bids) that APX is to transmit to the ISO
on behalf of Participants must be received via the APX Market Window
or other means approved by APX in its reasonable discretion.
4.9. APX will Schedule a Registered Generator that is committed to
Regulatory Must-Take, Regulatory Must-Run, or Reliability Must-Run
Generation only on the basis of Net Physical Position. Each
Participant that is so Scheduled is responsible for ensuring that the
Net Physical Position is and remains adequate to comply with all
requirements of Law or contract.
4.10. When APX is acting as SC in a Transfer Schedule, APX will notify the
counterpart SC of the Net Physical Position of the Registered Transfer
Point and the Zone associated with the Transfer Schedule when it
appears that there is a mismatch. APX will submit settled Transfer
Schedules to the ISO at each opportunity provided for submitting
Schedules, and is authorized to submit the Transfer Schedule to the
ISO whether it has received counterpart SC confirmation or not. In the
event of a discrepancy between the Net Physical Position and/or Zone
reported by APX and the counterpart SC, APX will apply commercially
reasonable efforts to resolve such discrepancy. If a discrepancy
cannot be resolved in time for submittal to the ISO, APX will submit
the Transfer Schedule it has and shall not be responsible for any
later discovered inaccuracy in the counterpart SC's information.
5. APX CALIFORNIA SCHEDULING SERVICE (APX SC ID) - METERING AND METER DATA
REQUIREMENTS.
5.1. Each Participant who uses APX Scheduling Coordinator Services, including
APX Bilateral Contract Scheduling Services, must ensure that each
Registered Facility has in place and maintains all metering equipment and
facilities required to comply with
PAGE 2 OF 4
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 2
CALIFORNIA SCHEDULING SERVICES
ISO Tariffs and applicable Law. Also, each Registered Facility that
requires a Meter Data Management Agent (MDMA) must arrange for services
from an MDMA that is certified by appropriate regulatory authority and
approved by APX in its reasonable discretion. In addition, each Registered
Facility that requires a Meter Aggregation Service Provider (MASP) must
arrange for services from a MASP that is certified by appropriate authority
and approved by APX in its reasonable discretion. Lastly, each Participant
must provide meter registration data that includes meter identification
serial number, demand zone for that meter(s), start date, end date and
other related data prior to the effective date of the meter, for each
Registered Generating Unit's Generation Meter and each Registered Load's
End-Use Meter. Periodic update of meter identification data changes on the
1st and 15(th) of each month is an on-going requirement, and no meter will
be accepted for registration after its start date. Participants who provide
late or erroneous meter data will incur a meter data adjustment charge. APX
reserves the right to decline Scheduling Coordinator responsibility for any
meter(s) registered late, or any meter for which required credit has not
been posted by the meter start date.
5.2. For each Registered Load, the respective Participant must ensure that
APX is provided Settlement Quality Meter Data in the form and at the
time specified below by either (i.) providing or arranging for the
provision of Settlement Quality Meter Data to APX, or (ii.) entering
into a mutual agreement with APX whereby APX will process Settlement
Quality Meter Data for the Registered Load, subject to any terms and
conditions that APX may specify. If the Participant chooses to provide
or arrange for the provision of Settlement Quality Meter Data to APX
pursuant to subpart (i.) above, APX shall be entitled to conduct an
annual audit of the data, materials, books or other records that may
be involved in the processing of Settlement Quality Meter Data,
provided (x.) the audit shall be conducted at the Participant's
expense at a mutually convenient time and place, preferably where data
is processed or records are stored; (y) APX shall provide reasonable
advance notice of the audit, audit time, and place; and (z) APX shall
conduct the audit during normal business hours unless the Participant
and APX agree otherwise.
5.3. By approving a Participant's use of any MDMA and MASP, or by
maintaining a list of approved MDMAs and MASPs, APX makes no
representation or warranty as to the capabilities (technical,
financial or otherwise) of any MDMA or MASP. Each Participant is
solely responsible for ensuring that its MDMA and MASP comply with the
requirements of Governmental Authorities and has the capability to
fulfill its obligations under the APX Master Terms and this Tab 2. APX
is not responsible for the failure of any MDMA and MASP to perform to
a particular Participant's satisfaction.
5.4. Each Participant shall be solely responsible for the timely submission
of Settlement Quality Meter Data. Additionally, each Participant is
solely responsible for any error in the Settlement Quality Meter Data
that is submitted to APX and/or the ISO by the Participant or the
Participant's MDMA and MASP. Lastly, each Participant who fails to
submit, or submits inaccurate or incomplete Settlement Quality Meter
Data, such that APX is assessed ISO Charges, agrees to reimburse APX
for all charges actually assessed plus administrative costs incurred
by APX in rectifying deficient data.
5.5. The following specific rules describe the performance standards for
providing Settlement Quality Meter Data to APX:
5.5.1. Registered Facilities that are directly connected to the ISO
Controlled Grid must comply with all applicable provisions of the
ISO Tariff, protocols, and published operational technical
requirements.
5.5.2. Registered Facilities that are not directly connected to the
ISO Controlled Grid must provide Settlement Quality Meter Data to
APX in a manner that conforms with all applicable provisions of
the ISO Tariff, protocols, and operational technical
requirements.
5.5.3. For Registered Facilities that are not directly connected to
the ISO Controlled Grid, Settlement Quality Meter Data must be
provided to APX no later than five (5) days before a particular
day's energy consumption/production data is due to the ISO.
5.5.4. Registered Generators that are not directly connected to the
ISO Controlled Grid with a nameplate capability greater than 50
KW must provide data from an interval meter that measures net
electrical output at the interface to the distribution system or
the ISO Controlled Grid as appropriate.
5.5.5. For Registered Loads, consumption must be reported at the level
at which it was Scheduled (e.g. if the Load was Scheduled at a
Take-Out Point, the corresponding End-Use Meter reads must be
reported at that Take-Out Point).
5.5.6. For Participants with both Registered Loads and Registered
Generators, meter data for Load and Generation must be reported
separately, and cannot be netted against each other.
6. APX CALIFORNIA SCHEDULING SERVICE (PARTICIPANT SC ID) - OPERATIONAL
REQUIREMENTS
6.1. In addition to the eligibility requirements of Section 3 of the APX
Master Terms, to be eligible to use APX California Scheduling Service
(Participant SC ID), a Participant must:
a. Designate APX as the Scheduling Coordinator Agent for specified
Generators, Loads, Exports, Imports and Transfer Points in its
APX Registration Statement;
b. Provide all information that APX reasonably needs to comply with
the ISO Tariff; and
c. For Registered Loads, provide monthly energy consumption data,
peak energy demand data from interval meters, and the rate
schedule for that load under which it has taken service for the
preceding 12 months.
6.2. If any material modification is made to a Participant's Registered
Facility, the Participant shall inform APX by a written change to its
then current APX Registration Statement.
6.3. By virtue of its use of APX California Scheduling Service (Participant
SC ID), each Participant grants to APX all agency authority necessary
to comply with the ISO Tariff as a Scheduling Coordinator.
6.4. Each Participant has a contractual obligation to take or Deliver the
amount of energy specified in any Schedule submitted to the ISO by APX
in the name of the registered Participant. In the event of a
Deviation, including a Deviation resulting from a Participant's
failure to Schedule a Delivery with APX or its counter-party, the
Participant must pay a charge or receive a credit, as the case may be,
to reflect associated True-Up Amounts and ISO Charges.
6.5. With respect to any Schedule that APX submits to the ISO in the name
of a Participant, as well as related Deliveries required under
Schedules submitted, the Participant shall be solely responsible for
all charges imposed on APX by the ISO and all APX fees associated with
such Schedules or related Deliveries.
6.6. In providing APX California Scheduling Service to a given Participant,
APX will endeavor to:
a. Submit required Schedules to the ISO using the Participant SC ID.
PAGE 3 OF 4
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 2
CALIFORNIA SCHEDULING SERVICES
b. Transmit Ancillary Service bids for Participant's Registered
Facility to the ISO, and pass ISO acceptance, instructions,
payments, fees, and charges, if any, back to the Participant.
c. Transmit error messages generated by the ISO's Schedule
validation checks to the Participant, as received by APX;
d. Transmit applicable messages sent by the ISO to the Participant,
as received by APX;
e. If applicable, relay Settlement Quality Meter Data provided by
the Participant (or its MDMA) to the ISO or equivalent;
f. If applicable, relay Settlement Quality Meter Data provided by
the ISO to the Participant (or its MDMA); and
g. Calculate any Pass-Through Charges owing, including imputed
Control Area Operator charges.
h. Calculate from the ISO any Pass-Through Payments owed to the
Participant.
6.7. All communications (including bids) that APX is to transmit to the ISO
on behalf of Participants must be received via the APX Market Window
or other means approved by APX in its reasonable discretion.
6.8. When APX is acting as SC Agent in a Transfer Schedule, APX will notify
the counterpart SC of the Net Physical Position of the Registered
Transfer Point and the Zone associated with the Transfer Schedule when
it appears that there is a mismatch. APX will submit settled Transfer
Schedules to the ISO at each opportunity provided for submitting
Schedules, and is authorized to submit the Transfer Schedule to the
ISO whether it has received counterpart SC confirmation or not. In the
event of a discrepancy between the Net Physical Position and/or Zone
reported by APX and the counterpart SC, APX will apply commercially
reasonable efforts to resolve such discrepancy. If a discrepancy
cannot be resolved in time for submittal to the ISO, APX will submit
the Transfer Schedule it has and shall not be responsible for any
later discovered inaccuracy in the counterpart SC's information.
6.9. When APX is acting as SC Agent for a Participant, Tab 3 (APX Managed
Credit Services) does not apply.
6.10. When APX is acting as SC Agent for a Participant, Section 4 of Tab 4
(Settlement and Payment) does not apply.
* * * * * * * * * * * * * * * *
PAGE 4 OF 4
EFFECTIVE SEPTEMBER 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 3
APX MANAGED CREDIT SERVICES
1. SCOPE.
1.1. This Tab Number 3 to the APX Master Terms and Conditions of Service
sets forth the requirements, procedures, and protocols for the
effective use of APX Managed Credit Services in all regions where APX
trading services and Scheduling Services are offered. Together with
other applicable Tabs, the APX Master Service and Participation
Agreement, and the APX Master Terms and Conditions of Service, all of
which are expressly incorporated by reference, this Tab constitutes
the entire agreement necessary for Participants to engage in APX
Managed Credit Services. Participant Approved Counter-Party Trading is
procedurally different, is described in Tab 1, and is not applicable
to this Tab 3.
1.2. References to a Section shall mean a Section of this Tab 3, unless
otherwise agreed. In the event of conflict between this Tab 3 and the
APX Master Terms, this Tab 3 shall control and take precedence. APX
Managed Credit Services is an APX Market within the meaning of that
defined term in all regions where offered.
2. DEFINITIONS.
2.1. "APX Clearing Account" means the account maintained with the
Depository in which all monies owing from Participant's are deposited
and disbursed.
2.2. "Business Day" means a day on which Federal Monetary Reserve member
banks are open for business in California and New York.
2.3. "Market Closing Time" means the time the APX Market Engine ceases to
accept Buy Orders or Sell Orders for a particular APX Market for a
particular interval.
2.4. "Monetary Reserve Account" means the APX accessible accounts
maintained with the Depository containing Participant cash to secure
all or a portion of that Participant's APX Service obligations.
2.5. "Monetary Reserve Requirement" means the minimum amount of funds (in
US dollars) or reserves (in letter of credit form) that a Participant
must maintain in its Monetary Reserve Facility at any given time to
cover the Participant's Net Exposure.
2.6. "Net Exposure" means APX' good faith estimate of a Participant's
maximum net monetary exposure (in US dollars) relating to the APX
Services at any given time, as determined by APX in its reasonable
discretion.
2.7. "Net Financial Position" means the total amount (in US dollars) due
from or payable to a Participant at any given time, based on the
aggregate of such Participant's Contracted Orders and other use of the
APX Services.
3. APX MANAGED CREDIT TERMS.
3.1. Each APX Managed Credit Participant shall establish and maintain a
Monetary Reserve Facility that meets the requirements set forth in
this Tab 3 and is otherwise acceptable to APX in its reasonable
discretion. Such Monetary Reserve Facility may take one of the
following forms:
a. an irrevocable and unconditional letter of credit that has been
approved by APX and issued by a bank or other financial
institution acceptable to APX in its reasonable discretion, as
more fully described below; or
b. a cash deposit in an interest-bearing Monetary Reserve Account,
with interest accruing to the Participant.
3.2. Each Participant shall establish and maintain its Monetary Reserve
Facility in an amount that is sufficient to cover its Net Exposure, as
determined by APX from time to time. APX reserves the right to set and
modify the criteria used to determine Net Exposure from time to time
in its sole reasonable discretion, and will notify Participants of
changes in such criteria to the extent that such changes have a
material effect upon Participant's Monetary Reserve Requirement.
3.3. Letters of credit are shown as a balance under the "Credit Limit" icon
of the Participant's Market Window. APX will provide Participants the
templated forms for posting letters of credit. APX will accept letters
of credit from financial institutions that enjoy a minimum short-term
rating of A1+ (Standard & Poor's), P1 (Moody's), or F1+ (Fitch). If an
institution's letter of credit rating falls below the required level
after a Participant has Registered, the Participant will be notified
and has thirty (30) days from the rating downgrade date to replace the
letter of credit.
3.4. Participants may mix Monetary Reserve Facility types to meet their
estimated credit limit requirements. In the event of a draw on a
Participant's Monetary Reserve Facility where the MRF is comprised of
mixed species of funds, APX will exercise its reasonable discretion in
drawing on one type before another in curing the deficiency.
3.5. APX shall only initiate a draw upon Participant's Monetary Reserve
Facility if it appears there are insufficient funds in the APX
Clearing Account on the monthly Payment Due Date to cover that
Participant's then presenting Net Exposure. In order to avoid or
mitigate this potential situation, APX will monitor a Participant's
Net Exposure on a daily basis, and may periodically call for increases
in the Participant's posted credit levels in any given month. An
inability to post additional credit, or a failure to promptly do so in
response to APX' request, will cause the Participant's further trading
to be suspended until they unwind their financial position or post
additional credit. Under some circumstances, APX may withdraw as the
Participant's Scheduling Coordinator and/or Qualified Scheduling
Entity, as when a Registered Load has been apprised of the need to
increase their available credit, and has failed to do so. Credit is
encumbered automatically against entered bids, even before such bids
have Contracted on the APX Market Window screen. Bids not Contracted
lapse at Market Closing Time, and the unused credit returns to the
Participant's then available credit limit.
3.6. Prior to initiating any draw upon a Participant's Monetary Reserve
Facility, APX will employ reasonable efforts to notify the Participant
of the insufficiency in time for such Participant to rectify the
shortage; provided that APX shall not be liable for ( i ) any failure
to actually notify a Participant prior to initiating a draw under this
Section, or ( ii ) initiating a draw under this Section at any time
before, after, or contemporaneously with giving such notice. Each time
APX initiates a draw on a Participant's Monetary Reserve Facility, the
Participant will incur the Default Fee listed in Tab 5 of these APX
Master Terms.
3.7. For Participants that are subject to ISO pass-through charges, it may
be necessary to periodically increase a trading Participant's APX
Clearing Account cash deposits solely to cover the increased cash
exposure in that
Page 1 of 2
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 3
APX MANAGED CREDIT SERVICES
single trading venue. APX will initiate written notification to the
Participant if such an increase in Clearing Account cash deposits is
required. For those affected Participants whose trading is ultimately
secured by a Monetary Reserve Facility letter of credit, any increase
in their APX Clearing Account deposits made necessary by the
imposition of ISO pass-through charges must be in the form of cash,
rather than in an increase in the face amount of the letter of credit.
3.8. Monetary Reserve Facility cash reserves shall bear interest for the
Participant at the rate negotiated from time to time between APX and
the Depository. For purposes of the amount to be maintained by the
Participant as a Monetary Reserve Facility, the Participant shall
receive a credit on the tenth Business Day of each month equal to the
amount of interest earned during the preceding calendar month. At a
Participant's request, annually in January, APX will distribute to
such Participants an amount equal to the interest earned on funds held
in the Monetary Reserve Account, so long as such distribution does not
cause the Participant to have insufficient credit reserves.
* * * * * * * * * * * * * * * * *
Page 2 of 2
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 4
SETTLEMENT AND PAYMENT SERVICES
1. SCOPE.
1.1. This Tab Number 4 to the APX Master Terms and Conditions of Service
sets forth the requirements, procedures, and protocols for the
effective use of APX Settlement and Payment Services. Together with
other applicable Tabs, the Master Service and Participation Agreement,
and the APX Master Terms and Conditions of Service, all of which are
expressly incorporated by reference, this Tab constitutes the entire
agreement necessary to receive APX Settlement and Payment Services.
1.2. References to a Section shall mean a Section of this Tab 4, unless
otherwise agreed. In the event of conflict between this Tab 4 and the
APX Master Terms, this Tab 4 shall control and take precedence. APX
Settlement and Payment Services is an APX Market within the meaning of
that defined term.
2. DEFINITIONS.
2.1. "APX Settlement Statement" means the password protected,
electronically posted statement of a Participant's actual and
estimated amounts owed by or to that Participant, in connection with
the Participant's use of APX Services for the reporting period,
including True-Up Amounts.
2.2. "Control Area Operator Charges" means the fees that are imposed by a
Control Area Operator in connection with a Participant's use of the
APX Services.
2.3. "Default Fee" means the charge specified in Tab 5 of these APX Master
Terms that is assessed by APX in the event that APX is required to
initiate a draw on a Participant's Monetary Reserve Facility.
2.4. "Monthly Invoice" means the password protected, electronic statement
of an APX Market Participant's transactions in the preceding calendar
month, including payments made or received, APX Fees, Pass-Through
Charges and Payments, and Control Area Operator Charges.
2.5. "Net Financial Position" means the total amount (in US dollars) due
from or payable to a Participant at any given time, based on the
aggregate of such Participant's Contracted Orders and other use of the
APX Services.
2.6. "Pass-Through Charges" means all charges and taxes levied by a Control
Area Operator or any Governmental Authority (other than APX Fees) in
connection with ( i ) the purchase, sale, Delivery, and use of APX
Products; or ( ii ) the use of any APX Service.
2.7. "Pass-Through Payments" means all payments from a Control Area
Operator, or any other entity, to APX for a Participant in connection
with such Participant's use of the APX Services that APX accepts for
further pass on to Participants.
2.8. "Payment Due Date" means 10:00 a.m. Pacific Standard or Daylight
Savings Time, on the fifteenth day of each month, or if the fifteenth
is not a Business day, on the last Business Day preceding the
fifteenth day.
2.9. "Payment Receipt Date" means 12:00 noon, Pacific Standard or Daylight
Savings Time, on the second Business Day following the Payment Due
Date.
2.10. "True-Up Amount" means the amount credited or debited to a
Participant to reflect new information in respect of a Participant's
actual activities and liabilities.
3. SETTLEMENT TERMS.
3.1. APX will regularly produce a Settlement Statement for each
Participant. The Settlement Statement will reflect actual and
estimated amounts owed by or to a Participant, including all charges
for electricity, Pass-Through Charges, Pass-Through Payments, and APX
Fees in connection with the Participant's use of the APX Services for
the reportable Delivery Day. True-Up Amounts will also be posted in
the viewable and downloadable Settlement Statement based upon the
data available to APX at the time. If Pass-Through Charges and
Pass-Through Payments for that reporting day correlate to more than
one APX Participant, APX will allocate such Charges and Payments to
affected Participants on a pro rata basis according to the amount of
electricity Delivered by or to the Participants in connection with
their use of any APX Service.
3.2. Promptly after the end of each calendar month, but no later than the
seventh day of the next month, APX will post the Participant's
Monthly Invoice reflecting that Participant's Net Financial Position
for the prior month. The Monthly Invoice will include all defined
elements stated above, and any new or adjusted Control Area Operator
Charges or credits received up to the posting date, even if such
Charges or credits relate to activity preceding the billing month
that is the subject of the Monthly Invoice.
3.3. All Settlement Statements and Monthly Invoices will be delivered via
such secure electronic means as may be approved by APX from time to
time. Participants desiring delivery of Settlement Statements or
Monthly Invoices by means other than the password protected APX
Internet Site must make alternate arrangements with APX.
Notwithstanding the foregoing, upon a Participant's written request,
Monthly Invoices also will be sent by APX to the Participant via U.S.
mail.
4. PAYMENT TERMS.
4.1. Each Participant that owes money to APX or any other Participant at
the end of each month shall deposit such amount, in immediately
available funds, into the APX Clearing Account on or before the
Payment Due Date. Each Participant is responsible for ensuring that
sufficient funds to cover payment for all outstanding liabilities are
deposited into the APX Clearing Account on or before the Payment Due
Date.
4.2. A Participant's liability for amounts owing to APX or any other entity
pursuant to these APX Master Terms at the end of the month shall be
discharged to the extent available funds have been deposited by the
Participant by the applicable Payment Due Date. If a Participant uses
APX Services in more than one APX Market, APX will apply the funds in
the Clearing Account to the Participant's outstanding obligations in
all APX Markets according to the order in which such obligations were
incurred. If sufficient funds have not been deposited in the APX
Clearing Account by the Payment Due Date, APX will direct the
Depository to allocate the available funds that have been deposited by
the Participant in APX' reasonable discretion and will initiate a draw
upon the Participant's Monetary Reserve Facility in an amount that is
sufficient to discharge remaining obligations. Prior to initiating any
such draw, however, APX will employ reasonable efforts to notify the
Participant of the insufficiency in time for such
Page 1 of 2
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 4
SETTLEMENT AND PAYMENT SERVICES
Participant to rectify the shortage; provided that APX shall not be
liable for (i) any failure to actually notify a Participant prior to
initiating a draw under this Section 4.2, or ( ii ) initiating a draw
under this Section 4.2 at any time before, after or contemporaneously
with giving such notice. Each time APX initiates a draw on a
Participant's Monetary Reserve Facility, the Participant will incur
the Default Fee listed in Tab 5 to these APX Master Terms.
4.3. APX shall effectuate payment to each Participant that is owed money at
the end of the month by withdrawing the amount due from the APX
Clearing Account and depositing such amount into an account designated
by the Participant. Any such account must be capable of receiving
funds via Fed-Wire. Such payment will occur on the Payment Receipt
Date or such other date as may be agreed upon in writing between APX
and the Participant.
4.4. APX will remit to each Participant all Pass-Through Payments that are
owing to such Participant and that APX has received as of the Payment
Due Date. Such remittance will occur on the Payment Receipt Date. In
performing this function, APX will forward the Pass-Through Payments
actually received, and shall bear no responsibility for any shortage,
delay, or reduction in Pass-Through Payment that the originator of the
payment may have caused. Participants shall be solely responsible for
raising, pursuing and resolving any dispute regarding Pass-Through
Payments with the applicable party and/or originator, and shall
reimburse APX for any costs incurred by APX in connection therewith.
In the event of a dispute between Participant and the originator of
Pass-Through Payments, APX' responsibility shall be confined to
providing information concerning a Participant's Contracted Orders and
Scheduled Deliveries in response to the Participant's reasonable
request; provided that the provision of such requested information
does not cause or induce a violation or breach of confidentiality
arising from obligations under these APX Master Terms.
4.5. In the event a Participant's Net Financial Position has changed
between the end of the prior month and the Payment Receipt Date from
that of net seller to net buyer as a result of activity in the first
12 days of the new month, APX reserves the right to account for that
fact in holding back some of the funds that the Participant would be
otherwise entitled to solely as a result of its trading activity in
the prior month.
4.6. All exchanges of funds by or with the Depository shall be by Fed-Wire
or similarly secure electronic funds transfer method proposed by the
Participant and approved by APX. All deposits into the APX Clearing
Account and payments from the APX Clearing Account shall be in U.S.
dollars. Exchange rate conversion charges and fees, if any, will be
borne by the Participant.
4.7. Notwithstanding the provisions of Section 15 of the APX Master Terms,
in the event a Participant disputes any amount in a Settlement
Statement or Monthly Invoice, such Participant must notify APX of the
Participant's dispute within 30 days after the date of the Statement
or Invoice in which the disputed amount first appears. Such
notification by a Participant must include a complete statement of the
basis underlying the Participant's objection to the amounts set forth
in the Settlement Statement or Monthly Invoice. A Participant's
failure to notify APX of a Settlement Statement or Monthly Invoice
dispute within the relevant 30 day period will constitute acceptance
by the Participant of the truth and accuracy of the posted statements
and a waiver by the Participant of any right to object to such
Settlement Statement or Monthly Invoice. Failure to object to an
estimated charge shall not serve to waive or minimize a Participant's
right to object to any related True-Up Amount in a subsequent
Settlement Statement or Monthly Invoice. Lastly, the Participant is
obligated to pay Monthly Invoice published charges, even if disputed,
by the Payment Due Date. If the dispute is resolved in the
Participant's favor after the Payment Due Date, a credit will be
posted to the then current Settlement Statement.
4.8. If APX discovers any error in a Settlement Statement or Monthly
Invoice, it will correct such error as soon as practicable.
Participants shall be responsible for paying any additional amounts
owing to APX, and shall receive payment from APX, as a result of a
corrected Settlement Statement or Monthly Invoice in the manner
described in Section 4.2 or 4.3 as the case may be.
4.9. Notwithstanding the provisions of Section 3.2, APX may, but is not
obligated to, send supplemental invoices to a Participant at any time
reflecting True-Up Amounts related to Pass-Through Charges. Payment of
amounts set forth in a supplemental invoice shall be due on the date
indicated by APX in such invoice. The provisions of this Section 4
shall apply to such supplemental invoices.
4.10. In the event that a Participant has not deposited sufficient funds in
the APX Clearing Account by the Payment Due Date, and the
Participant's Monetary Reserve Facility is inadequate to cover the
shortfall, APX may take any action to recover the unpaid amount that
is available to it at law or equity. Interest shall accrue on the
unpaid amount until paid in full on a daily basis at a fluctuating
rate equal to the highest prime rate published in the Wall Street
Journal plus six (6) percent, or the maximum interest rate permitted
by law, whichever is less.
4.11. In the event that, as a result of a default by a Participant or
otherwise, after reasonable and diligent attempts to replenish the
Participant's Clearing Account funds and draw down Participant's
Monetary Reserve Facility, APX will act to reduce payments to
Participants that are owed money in connection with their use of APX
Services in the same APX Market as the defaulting Participant. APX
will reduce payments to Participants in that APX Market on an
individual basis separate from all other APX Markets, such that
payments owed to a Participant in one APX Market will not be reduced
to offset unpaid amounts that are owing in connection with APX
Services in any other APX Market.
* * * * * * * * * * * * *
Page 2 of 2
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 5
APX PRODUCT AND SERVICE FEE SCHEDULE
APX FEES - WSCC REGION
- --------------------------------
MARKET TRANSACTION FEES
- --------------------------------
UNIT OF
APX FEES AMOUNT MEASURE TIME THAT FEE IS INCURRED COMMENTS
- -------------------------- ------ ------- ------------------------- --------
APX Market Transaction Fee $0.10 Per MWh When an Order is Contracted Applies to buy Orders and sell Orders each time
(Hourly Energy) in the APX Markets an Order is Contracted in whole or in part.
APX Market Transaction Fee $0.03 Per MWh When an Order is Contracted Applies to buy Orders and sell Orders each time
(Daily/BOM Energy) in the APX Markets an Order is Contracted in whole or in part.
APX Market Transaction Fee $0.01 Per MWh When an Order is Contracted Applies to buy Orders and sell Orders each time
(Monthly Energy and A/S CFD) in the APX Markets an Order is Contracted in whole or in part.
APX Market Transaction Fee $0.03 Per MWh When an Order is Contracted Applies to buy Orders and sell Orders each time
(Annual Green Tickets) in the APX Markets an Order is Contracted in whole or in part.
SCHEDULING FEES ( NP15, SP15, ZP26)
- -----------------------------------
AMOUNT < AMOUNT >
25,000 MWh 25,000 MWh UNIT OF TIME THAT FEE IS
APX FEES PER MONTH PER MONTH MEASURE INCURRED COMMENTS
- ------------------------------ ---------- ---------- ------- ---------------- ---------
APX Market Scheduling Fee $0.1250 $0.0625 Per MWh When a Day-Ahead Applies to net position of Registered
(Day-Ahead) Schedule is accepted Facilities except Registered Transfer
by the CAISO Points.
APX Market Scheduling Fee $0.1250 $0.0625 Per MWh When an Hour-Ahead Applies in the same manner as the
(Hour-Ahead) Schedule is accepted Day-Ahead APX Market Scheduling Fee
by the CAISO when there is a change in net
position between the Day-Ahead and
Hour-Ahead Schedules/
APX Real-Time Scheduling $0.2500 $0.1250 Per MWh When APX applies Applies when metered consumption or
Fee (Real-Time Deviations) CAISO Imbalance generation is greater than the most
Energy fees-rata recently scheduled position.
APX Bilateral Scheduling Fee $0.1250 $0.0625 Per MWh When a Day-Ahead Applies to the source and sink MWhs
(Day-Ahead) Schedule is accepted of a bilateral contract.
by the CAISO
APX is the SC for both parties
of the bilateral transaction
APX Bilateral Scheduling Fee $0.1250 $0.0625 Per MWh When an Hour-Ahead Applies in the same manner as the
(Hour-Ahead) Schedule is accepted Day-Ahead APX Bilateral Scheduling
by the CAISO Fee when there is a change in net
position between the Day-Ahead and
Hour-Ahead Schedules.
APX is the SC for both parties
of the bilateral transaction
APX Bilateral Scheduling Fee $0.2500 $0.1250 Per MWh When an Hour-Ahead Applies to the scheduled MWhs of a
(Day-Ahead) Schedule is accepted bilateral contract, including
by the CAISO instances where the source or sink
uses another Scheduling Coordinator.
APX is the SC for one party of
the bilateral transaction
APX Bilateral Scheduling Fee $0.2500 $0.1250 Per MWh When an Hour-Ahead Applies in the same manner as the
(Hour-Ahead) Schedule is accepted Day-Ahead APX Bilateral Scheduling
by the CAISO Fee when there is a change in net
position between the Day-Ahead and
Hour-Ahead Schedules.
APX is the SC for one party of
the bilateral transaction
APX Bilateral Scheduling Fee $0.03 $0.03 Per MWh When a bilateral is Applies to Green Ticket buyers and
(Green Tickets) confirmed between the Green Ticket sellers when APX handles
parties the financial settlement of the
Green Ticket transaction between the
parties.
APX Scheduling Fee $0.1250 $0.0625 Per MWh When the CAISO "Ancillary Services Capacity" means
(Ancillary Services Capacity) purchases Ancillary the capacity provided by a
Services Capacity Participant to the CAISO for
supplying Ancillary Services.
APX Scheduling Fee $0.1250 $0.0625 Per MWh When a Schedule for Applies to Ancillary Service energy
(Ancillary Services Energy) Ancillary Services is that is dispatched by the CAISO.
accepted by CAISO
APX Scheduling Fee $0.1250 $0.1250 Per MWh When a Schedule for Applies to Supplemental Energy that
(Supplemental Energy Supplemental Energy is dispatched by the CAISO, whether
Dispatched) is dispatched by accepted or declined by the
CAISO Participant.
FIXED FEES FOR MARKET TRANSACTIONS AND SCHEDULING
Page 1 of 3
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 5
APX PRODUCT AND SERVICE FEE SCHEDULE
UNIT OF
APX FEES AMOUNT MEASURE TIME THAT FEE IS INCURRED COMMENTS
- ------------------------- ------ ------- ------------------------- --------
Minimum Monthly Market Fee $500 Per Last day of each month Fee applies to Participants trading in the
Participant APX Markets that do not utilize the APX
per month Scheduling Coordinator Services. Applies to
the extent that a Participant's total APX
Market Transaction Fees for a month are less
than $500. Amount to be paid is the
difference between total Transaction Fees
and the $500 minimum. Fee commences when a
Participant connects to the APX Market
Engine or uses the APX Phone Brokerage
Service. Fee terminates upon receipt of a
Contract Termination letter. Participants
will pay this fee only once each month to
cover participation in all of the APX
Markets.
Minimum Monthly $2500 Per Last day of each month Fee applies to Participants utilizing the
Scheduling/Market Fee Participant APX Scheduling Coordinator Services,
per month including sales to CAISO imbalance market.
Applies to the extent that a Participant's
total Scheduling Fees for a month are less
than $2500. Fee commences when a Participant
submits its first schedule or when the
Participant's first Generation or Load Meter
becomes effective. Fee terminates three
months after receipt of Contract Termination
letter or last schedule submitted.
Participant Set-up Fee $1,000 One time fee Last day of month once a Participants will pay this fee only once
Participant is billed (unless the Participant is suspended) to
Minimum Monthly Fee for cover participation in all of the APX
first time. Markets.
Participant Training Fee No Charge N/A N/A Participant must have signed the MSPA.
(1st) session)
Participant Training Fee $1000 Per session Last day of the month
(additional sessions) in which training
occurred
Monetary Reserve Account $25 Per Last day of each month Only applies if a Participant establishes a
Maintenance Fee Participant Monetary Reserve Account. Participants will
per month pay this fee once each month to cover
maintenance of a given Monetary Reserve
Account.
Default Fee $2,500 Per default When APX initiates a draw
on a Participant's
Monetary Reserve Facility
Funds Transfer Fee $5 Per transfer When funds are transferred Applies to receipt and payment of funds.
via Fed-Wire, Automated
Clearing House (ACH), or
Electronic Funds Transfer
(EFT)
Generation Meter Data $5000 Per Last day of each month Only applies when the Participant's meter
Disaggregation Fee Participant data for one or more Generation Meters is
per month not sent daily to the CAISO.
APX FEES - ERCOT and NORTHEAST REGION
UNIT OF
APX FEES AMOUNT MEASURE TIME THAT FEE IS INCURRED COMMENTS
- ------------------------- ------ ------- ------------------------- --------
MARKET TRANSACTION FEES
APX Market Transaction Fee $0.03 Per MWh When an Order is Contracted Applies to Buy Orders and Sell Orders each
in the APX Markets time an Order is Contracted in whole or in
part.
FIXED FEES
Minimum Monthly Market Fee $500 Per Last day of each month Applies to the extent that a Participant's
Participant total APX Market Transaction Fees for a
per month month are less than $500. Amount to be paid
is the difference between total Transaction
Fees and the $500 minimum. Fee commences
when a Participant connects to the APX
Market Engine or uses the APX Phone
Brokerage Service. Fee terminates upon
receipt of a Contract Termination letter.
Participants will pay this fee only once
each month to cover participation in all of
the APX Markets.
Participant Set-up Fee $1,000 One time Last day of month once a Participants will pay this fee only once
fee Participant is billed (unless the Participant is suspended) to
Minimum Monthly Fee for cover participation in all of the APX
first time. Markets.
Participant Training Fee No Charge N/A N/A Participant must have signed the MSP.
(1(st) session)
Page 2 of 3
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 5
APX PRODUCT AND SERVICE FEE SCHEDULE
Participant Training Fee $1000 Per Last day of the month in which
(additional sessions) session training occurred
Fed-Wire Funds Transfer Fee $5 Per When funds are transferred Applies to receipt and payment of funds.
transfer via Fed-Wire
For ERCOT Scheduling Fees, refer to Tab 2A.
Page 3 of 3
Effective September 1, 2001
AUTOMATED POWER EXCHANGE
MASTER TERMS AND CONDITIONS: TAB 6
TELEPHONE BROKERAGE SERVICES
1. SCOPE
1.1. This Tab Number 6 to the APX Master Terms and Conditions of Services
sets forth the requirements, procedures, and protocols for the
effective use of Telephone Brokerage Services. Together with other
applicable Tabs, the Master Service and Participation Agreement, and
the APX Master Terms and Conditions of Service, all of which are
expressly incorporated by reference, this Tab constitutes the entire
agreement necessary to utilize the Telephone Brokerage Services in
the APX Markets.
1.2. References to a Section shall mean a Section of this Tab 6, unless
otherwise agreed. In the event of a conflict between this Tab 6 and
the APX Master Terms, this Tab 6 shall control and take precedence.
The Telephone Brokerage Services is an APX Market within the meaning
of that defined term.
2. DEFINITIONS
2.1. The following defined terms supplement the Master Terms and are
applicable to Telephone Brokerage Services in the APX Markets in the
United States and Canada
2.1.1. "APX Telephone Brokerage Desk" means the manned APX desk that
acts as a confidential point of contact for all Participants
to conduct trades through the online APX Markets.
2.1.2. "APX Operations Desk" means the manned APX desk that assists
Participants with scheduling activities and interact with the
California ISO.
2.1.3. "Telephone Brokerage Services" means the telephone services
provided by APX in which it acts as an intermediary,
transacting for its Participants in the APX Markets with
impartiality and discretion.
3. TELEPHONE BROKERAGE SERVICES.
3.1. Telephone Brokerage Services include:
3.1.1. Telephone dialogue between APX and Participants to provide
the information necessary for Participants to learn the
essential facts relating to open Orders in the APX Markets and
to generate interest in posting Orders and/or countering to
open Orders.
3.1.2. APX submittal of Orders on behalf of Participants via a
recorded telephone line or written notice (facsimile and
electronic mail are acceptable).
3.1.3. APX withdrawal of Orders on behalf of Participants via a
recorded telephone line or written notice (facsimile and
electronic mail are acceptable).
3.2. Telephone Brokerage Services do not include scheduling activities,
which are handled by the APX Operations Desk.
3.3. Security Authorization
To submit/withdraw Orders using the APX Telephone Brokerage Desk,
users are required to provide their Login ID and Password. A
Participant shall not permit others to use Participant's account and
shall notify APX of any known or suspected unauthorized use of
Participant's account. Participant is responsible for maintaining
the confidentiality of the password and shall be fully liable for
the use and any unauthorized use its Login IDs.
3.4. Confidentiality
All information passed on by a Participant to APX is treated with
the utmost confidentiality per Section 4.2.4 of the Master Terms.
PAGE 1 OF 1
EFFECTIVE SEPTEMBER 1, 2001