FIRST CHOICE POWER ONLINE MARKETING PROGRAM AGREEMENT
This First Choice Power Online Marketing Program Agreement (this "Agreement") is by and between you ("You" or "Your") and First Choice Power, L.P. ("First Choice Power"), and governs your participation in a so-called online affiliate marketing program, as described further below (the "Program").
PLEASE READ THIS AGREEMENT CAREFULLY. By clicking on the "I Accept" button, you are indicating your acceptance of this Agreement, which shall be deemed made and entered into as of the date of such acceptance.
As used in this Agreement, the term:
(a) " First Choice PowerWebsite" means First Choice Power's proprietary Internet website located at http://www.firstchoicepower.com.
(b) "Fee" means the monetary fee described in Section 7(a) below.
(c) "Governmental Authority" means any governmental authority having competent jurisdiction over First Choice Power and its operations, including but not limited to the Public Utility Commission of Texas.
(d) "LinkShare" means the entity known as LinkShare Corporation.
(e) "Materials" means any materials (e.g., promotional banners, promotional videos, advertisements) approved by First Choice Power which are provided or made available to You by First Choice Power or LinkShare for use in connection with the Program, and which market First Choice Power and its business endeavors.
(f) "Objectionable Content" means any content found on an Internet website (whether directly or indirectly, e.g., hyperlink, online pop-up advertisement) which First Choice Power deems, in its sole discretion, unsuitable for use in connection with the Program. Without limitation, and by way of example only, "Objectionable Content" may include: (i) sexually explicit material or the promotion thereof; (ii) violent, hateful or discriminatory material or the promotion of violence, hate or discrimination toward any person or group; (iii) the promotion of illegal activities; (iv) the promotion of alcohol, tobacco, gambling, or firearms; (v) material that defames, harasses or defrauds a person or group; (vi) material that violates the proprietary rights of any person or entity (including, without limitation, First Choice Power); (vii) material that violates the rights of privacy or publicity or constitutes a defamation against any person or entity (including, without limitation, First Choice Power); and (viii) material that breaches a term or condition of this Agreement.
(h) "Qualifying Customer" means any person who actually enrolls as a customer with First Choice Power by (1) accessing the Qualifying Website, (2) clicking on the Qualifying Hyperlink, (3) completing First Choice Power's online customer enrollment form on the First Choice PowerWebsite (as associated with the Qualifying Hyperlink), (4) receiving an enrollment confirmation from First Choice Power, and (5) paying an enrollment deposit to First Choice Power as may be required by First Choice Power.
(i) "Qualifying Website" means the Internet website owned and operated by You which has been approved by First Choice Power for use in connection with the Program.
(j) "Qualifying Hyperlink" means the hyperlink authorized by First Choice Power and provided or made available to You by First Choice Power or LinkShare for placement or otherwise display on the Qualifying Website, and for use solely in connection with the Program.
(k) "Term" means the period of time during which this Agreement shall be and remain in effect, as further described in Section 3(a) below.
2. The Program
(a) Description of the Program. The Program covered by this Agreement is a so-called online affiliate marketing program supported by LinkShare. Specifically, First Choice Power will (on its own initiative or through LinkShare) provide You with the Qualifying Hyperlink and the Materials, which You will then place or otherwise display on the Qualifying Website. A visitor to the Qualifying Website may click on the Qualifying Link, which will redirect him or her or it from the Qualifying Website to a certain online customer enrollment webpage found on the First Choice PowerWebsite. If said visitor becomes a Qualifying Customer, then (subject to the terms and conditions of this Agreement) First Choice Power will pay You the Fee.
(b) Approval of Application and Qualifying Website. Before You may participate in the Program, First Choice Power must approve Your application to the Program and approve the Qualifying Website. The Qualifying Link will be made available to You by or at the direction of First Choice Power or LinkShare upon First Choice Power's approval of Your application and the Qualifying Website. First Choice Power reserves the exclusive right to, in its sole discretion, approve or reject any application to the Program for any reason whatsoever. First Choice Power also reserves the exclusive right to, in its sole discretion, approve or reject any Qualifying Website for any reason whatsoever.
3. Term and Termination
(a) Term. The Term of this Agreement shall be for the period during which You participate in the Program in any way, unless otherwise terminated pursuant to the terms and conditions of this Agreement.
(b) Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (i) expiration of the Term; (ii) You elect to terminate this Agreement at any time and for any reason by providing First Choice Power with five (5) days prior written notice of termination; or (iii) First Choice Power elects to terminate this Agreement any time, for any reason, and without notice to You.
(c) Effect of Termination. Within fifteen (15) days after the termination of this Agreement, You shall remove all copies of the Materials from the Qualifying Website, destroy all copies of the Materials in Your possession, custody or control, and provide First Choice Power with written verification of said destruction. You shall only be entitled to receive the Fee earned by You, if any, up to and including the date of termination of this Agreement, and, upon written notice by First Choice Power, shall immediately remit any unearned amount of the Fee paid to You by First Choice Power. First Choice Power reserves the right to withhold payment of the Fee to You for a reasonable time to ensure that the correct amount of the Fee is paid to You.
4. Grant of Rights
First Choice Power grants You the freely revocable, non-exclusive, non-transferable and non-assignable right during the Term to access and use the Materials solely in connection with the Program and in accordance with the terms and conditions of this Agreement, and to use the Qualifying Hyperlink solely in connection with the Qualifying Website and in accordance with the terms and conditions of this Agreement. You shall not use the Materials or the Qualifying Hyperlink in any manner other than as provided under this Agreement, and You shall not use the Materials or the Qualifying Hyperlink in connection with any Internet website other than the Qualifying Website.
You shall not perform (or allow others to perform) any of the following acts without the prior written consent of First Choice Power in each instance:
(a) Alter, change or otherwise modify the Program, the Materials, or the First Choice PowerWebsite;
(b) Distribute, display, transmit, disclose, disseminate, release, or otherwise use any data or other information derived from the Program about First Choice Power or its business endeavors;
(c) Include or allow the inclusion of Objectionable Content in or in connection with the Qualifying Website;
(d) Allow the Qualifying Website to become an Objectionable Website;
(e) Associate the Qualifying Website with an Objectionable Website;
(f) Employ or allow the use of any technology which may pull or divert Internet traffic away from the First Choice PowerWebsite;
(g) Employ or allow the use of any technology which may damage, harm, compromise or otherwise injure the Program or the First Choice PowerWebsite (e.g., "cookie-stuffing" methods, "spyware" programs, viruses, robots or "bots", worms, data mining programs);
(h) Allow any technology which may damage, harm, compromise or otherwise injure the Program or the First Choice PowerWebsite (e.g., "cookie-stuffing" methods, "spyware" programs, viruses, robots or "bots", worms, data mining programs) to infiltrate the Program or the First Choice PowerWebsite from the Qualifying Website;
(i) Cause or allow the appearance that a visitor to the Qualifying Website is visiting the First Choice PowerWebsite (e.g., "framing" or "wrapping" of the First Choice PowerWebsite by the Qualifying Website);
(j) Cause or allow any sort of endorsement, sponsorship or recommendation of You or the Qualifying Website by First Choice Power;
(k) Distribute, display, transmit, disclose, disseminate, or otherwise release the Materials prior to their release date (as set by First Choice Power in its sole discretion);
(l) Purchase any goods or services sold or marketed through the First Choice PowerWebsite for resale or other commercial use of any kind; or
(m) Use so-called "keyword advertising" in connection with the Program, the Qualifying Website, or the First Choice PowerWebsite.
6. Maintenance of the Qualifying Website
During the Term, You shall be solely responsible for the development, operation and maintenance of the Qualifying Website and all content found thereon. In addition, You shall also:
(a) Maintain the accuracy, timeliness and appropriateness of all content found on the Qualifying Website;
(b) Monitor the Qualifying Website for any content that may constitute Objectionable Content;
(c) Remove the Materials from the Qualifying Website as soon as Objectionable Content is found thereon;
(d) Remove any Objectionable Content from the Qualifying Website as soon as it is found thereon;
(e) Notify First Choice Power and LinkShare of any Objectionable Content that is found on the Qualifying Website during the Term, with said notice to be given within six (6) hours after it is found (even if You have already removed the Objectionable Content); and
(f) Notify First Choice Power and LinkShare of any technical or other problems affecting the Qualifying Website, the Qualifying Links, or Your participation in the Program.
7. The Fee
(a) Calculation of the Fee. In full consideration of your participation in the Program, First Choice Power will pay a Fee for each person or entity that actually becomes a Qualifying Customer during the applicable calendar month based on the following schedule, less any Qualifying Customer enrollment cancellations, less any credit charge-backs, and less any taxes or other amounts which First Choice Power or LinkShare is required to withhold by law:You shall not be entitled to payment of the Fee if the Qualifying Customer is You or Your affiliate, if You have already received some other type of compensation or benefit (e.g., a discount) from First Choice Power for the Qualifying Customer, or if the Customer has already received some sort of compensation or benefit (e.g., a discount) from First Choice Power.
(b) Payment. First Choice Power will pay the Fee to You within thirty (30) days after the end of each applicable accounting period and in accordance with First Choice Power's regular accounting standards and practices. All determinations about whether a Fee is payable to You shall be made by First Choice Power and/or LinkShare, and shall be final and binding
8. Fee Adjustment
First Choice Power reserves the exclusive right to, in its sole discretion, adjust the Fee upon prior written notice to You.
First Choice Power may report the Fee and any other payments made or to be made pursuant to this Agreement to the Internal Revenue Service as appropriate under the laws of the United States and the State of Texas. Nothing in this Agreement shall be construed to require First Choice Power to make any payments to compensate You for any adverse tax effect associated with the Fee or any other payments made or to be made pursuant to this Agreement.
10. No Further Consideration
You shall not be entitled to any compensation, payments or benefits under this Agreement or in connection with the Program, except for the Fee.
11. Proprietary Rights
(a) Ownership. You hereby acknowledge and agree that: (i) all rights, titles and interests in and to the Materials, the First Choice PowerWebsite and any elements and derivatives thereof (including, without limitation, copyrights, trademarks, patents, trade secrets, and ideas) are the exclusive property of First Choice Power; and (ii) You shall not do or cause to be done any act or thing which in any way infringes, impairs or tends to impair First Choice Powers' rights, titles and interests in and to the Materials, the First Choice PowerWebsite and any elements and derivatives thereof (including, without limitation, copyrights, trademarks, patents, trade secrets, and ideas).
(b) Trademarks. You are prohibited from using any of the trademarks or logos appearing within or in connection with the Program, the Materials, the First Choice PowerWebsite or any elements or derivatives thereof without the prior written consent of First Choice Power, accept as permitted by applicable law.
(c) Reservation of Rights. Nothing in this Agreement shall restrict or prevent First Choice Power from using, selling, licensing or otherwise exploiting the Program, the Materials, the First Choice PowerWebsite or any elements or derivatives thereof in any language or in manner, medium or form.
12. Links to Third-Party Internet Sites or Information
Any hyperlinks to third-party Internet sites or information made available to You by or through the Program do not constitute or imply an endorsement, sponsorship or recommendation by the First Choice Power of the third party, the third-party Internet site, or the content found thereon. First Choice Power is not responsible for the availability of any such third-party Internet sites, nor is First Choice Power responsible or liable for any such third party, third-party Internet site or content found thereon.
You shall maintain the terms and conditions of this Agreement in confidence and, therefore, shall not make, transmit, disseminate, release, publish or otherwise reveal the terms or conditions of this Agreement to any non-signatories hereto; provided, however, that You may reveal the terms and conditions of this Agreement (a) to Your accountants, financial advisors, tax advisors and attorneys, (b) in connection with any action to enforce the terms of this Agreement, or (c) to the extent otherwise required by federal, state or local laws. The obligations of confidentiality contained herein are expressly part of the consideration for this Agreement and shall remain in effect in perpetuity, regardless of whether this Agreement expires or terminates.
14. Injunctive Relief
You acknowledge the unauthorized use, copying or reproduction of the Materials or the First Choice PowerWebsite will cause First Choice Power irreparable harm and significant injury, which may be difficult to measure with certainty or to compensate through monetary damages. Therefore, You hereby agree that in the event You directly, indirectly or inadvertently cause the unauthorized use, copying or reproduction of the Materials, First Choice Power shall be entitled to obtain a temporary restraining order, a preliminary injunction, a temporary injunction and/or a permanent injunction, without the necessity of a bond, against such breach from any court of law with binding authority. First Choice Power's right to obtain such relief shall not limit its right to obtain other remedies.
YOUR USE OF THE PROGRAM, THE MATERIALS, THE FIRST CHOICE POWERWEBSITE, OR ANY OTHER GOODS, SERVICES OR RIGHTS PROVIDED OR TO BE PROVIDED TO YOU HEREUNDER IS ENTIRELY AT YOUR OWN RISK. FIRST CHOICE POWER DOES NOT MAKE, NOR HAS FIRST CHOICE POWER MADE, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, DIRECTLY OR INDIRECTLY, WHETHER EXPRESS OR IMPLIED, TO YOU WITH RESPECT TO THE PROGRAM, THE MATERIALS, THE THEFIRST CHOICE POWERWEBSITE, OR ANY OTHER GOODS, SERVICES OR RIGHTS PROVIDED OR TO BE PROVIDED TO YOU HEREUNDER. ACCORDINGLY, FIRST CHOICE POWER EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND EXPRESS AND IMPLIED WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, AND USAGE IN TRADE. FIRST CHOICE POWER HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE PROGRAM, THE MATERIALS, THE THEFIRST CHOICE POWERWEBSITE, OR ANY OTHER GOODS, SERVICES OR RIGHTS PROVIDED OR TO BE PROVIDED TO YOU HEREUNDER THAT HAS BECOME ANY BASIS OF THIS BARGAIN. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS AGREEMENT; THE PROGRAM, THE MATERIALS, THEFIRST CHOICE POWERWEBSITE, OR ANY OTHER GOODS, SERVICES OR RIGHTS PROVIDED OR TO BE PROVIDED TO YOU HEREUNDER ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS.
16. Limitation of Remedies
IN THE EVENT FIRST CHOICE POWER FAILS TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, YOUR SOLE REMEDY FOR SAID NON-PERFORMANCE SHALL BE LIMITED TO NON-PAYMENT OF THE FEE. IN NO EVENT SHALL YOU BE ENTITLED TO RECOVER ANY DIRECT, INDIRECT, ACTUAL, SPECIAL, PUNITIVE OR OTHER MONETARY DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COSTS, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR THE VALUE OF LOST DATA) FROM FIRST CHOICE POWER, OR TO SEEK ANY INJUNCTIVE OR EQUITABLE RELIEF AGAINST FIRST CHOICE POWER.
17. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FIRST CHOICE POWER SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY (AND FIRST CHOICE POWER SHALL NOT BE OBLIGATED TO INDEMNIFY YOU OR ANY THIRD PARTY) FOR ANY DIRECT, INDIRECT, ACTUAL, SPECIAL, PUNITIVE OR OTHER MONETARY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY ATTORNEYS' FEES, COSTS, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR THE VALUE OF LOST DATA) FOR OR IN CONNECTION WITH ANY CLAIM OF BREACH OF WARRANTY, INTERFERENCE, RECKLESSNESS, NEGLIGENCE, PRODUCTS LIABILITY, INFRINGEMENT, VIOLATION OF THE RIGHTS OF PRIVACY OR PUBLICITY, DEFAMATION, FRAUD, MISREPRESENTATION, CRIMINAL, OR ANY OTHER LEGAL THEORY ARISING FROM OR IN CONNECTION WITH THE PROGRAM, THE MATERIALS, OR THE FIRST CHOICE POWERWEBSITE.
18. Representations, Warranties and Covenants; Indemnification
You represent, warrant and covenant to First Choice Power that: (a) You have read and understand the terms and conditions of this Agreement in its entirety; (b) You have the full and exclusive right and authority to enter into and perform this Agreement in its entirety; (c) neither the Qualifying Website nor any elements thereof infringe upon or violate the proprietary rights of any person or entity; (d) neither the Qualifying Website nor any elements thereof violate the rights of privacy or publicity of or constitute a defamation against any person or entity; (e) neither the Qualifying Website nor any elements thereof contain Objectionable Content; (f) the Qualifying Website is not an Objectionable Website; and (g) no obligation, agreement or adverse claim exists that may restrict the performance of Your obligations hereunder. YOU SHALL INDEMNIFY, RELEASE AND HOLD HARMLESS FIRST CHOICE POWER AND FIRST CHOICE POWER'S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE COSTS AND ATTORNEYS' FEES) THEY INCUR BY REASON OF ANY BREACH OR CLAIM OF BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES AND COVENANTS. YOUR INDEMNIFICATION OBLIGATIONS SHALL ALSO APPLY TO ANY BREACH OR CLAIM OF BREACH OF ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT WHICH CAUSE (EITHER DIRECTLY OR INDIRECTLY) FIRST CHOICE POWER TO BECOME THE SUBJECT OF (A) A COMPLAINT TO THE BETTER BUSINESS BUREAU; (B) AN INFORMAL OR FORMAL COMPLAINT TO ANY GOVERNMENTAL AUTHORITY; (C) AN INVESTIGATION BY OR ADMINISTRATIVE PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY; (D) A LAWSUIT OR OTHER LEGAL OR EQUITABLE PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY; OR (E) A FINE, SANCTION, OR OTHER PENALTY IMPOSED ON FIRST CHOICE POWER BY ANY GOVERNMENTAL AUTHORITY.
19. Modification of this Agreement
First Choice Power reserves the exclusive right to, in its sole discretion, change, alter or otherwise modify this Agreement at any time effective upon posting of the modified Agreement with LinkShare or on the First Choice PowerWebsite. Accordingly, please review this Agreement periodically. Your continued participation in the Program after such posting means You accept such modifications.
20. Modification of the Program
First Choice Power reserves the exclusive right to, in its sole discretion, temporarily or permanently modify or discontinue the Program at any time. First Choice Power shall not be liable to You for any such modification, suspension or discontinuance, except as expressly provided herein.
21. Force Majeure
No party hereto shall be liable or deemed in breach or default for any delay, failure or interruption in performance hereunder resulting directly or indirectly from any acts of God, civil or military authority, acts of the public enemy, war, acts of terrorism, riots, civil disturbances, labor strikes, insurrections, accidents, fires, explosions, earthquakes, floods, the elements, severe illness, disability, death or any other cause beyond the reasonable control of said party that may be characterized as "force majeure." The parties agree to address or minimize the impact of such acts by taking reasonable measures to ensure performance hereunder to the extent possible.
(a) No Transfer. You shall have no right to assign, delegate or otherwise transfer any rights or obligations under this Agreement. Any such assignments, delegations or transfers by or at the direction of You without the prior written approval of First Choice Power shall be void.
(b) No Relationship. This Agreement shall not create any fiduciary relationship, agency relationship, employment relationship, independent contractor relationship, partnership or joint venture between You and First Choice Power.
(c) Waiver of Rights. The delay or failure of First Choice Power to exercise a right or remedy available hereunder shall not constitute a waiver of such right or remedy.
(d) Survival. The following provisions shall survive the termination of this Agreement in perpetuity: Sections 2(c), 3(c), 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 22.
(e) Severability. If any term or condition of this Agreement is held invalid or unenforceable for any reason by a court of law with binding authority, then the remaining terms and conditions shall not be affected and remain in effect.
(f) Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Texas and applicable federal law, regardless of the place of its execution or performance and any conflicts of law analysis. YOU IRREVOCABLY AGREE, CONSENT AND OTHERWISE SUBMIT TO THE EXCLUSIVE JURISDICTION OF A COURT OF APPROPRIATE JURISDICTION LOCATED IN TRAVIS COUNTY, TEXAS FOR THE ADJUDICATION OF ANY DISPUTE, CONTROVERSY OR CLAIM ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. The prevailing party of such dispute, controversy or claim shall be entitled to reasonable costs and attorneys' fees.
(g) Entire Agreement. This Agreement sets forth the entire understanding between You and First Choice Power and supersedes any prior agreements, if any, made between You and First Choice Power (orally or in writing) relative to the subject matter of this Agreement. This Agreement cannot be modified, amended, released or waived, in whole or in part, except in a writing signed by You and First Choice Power, unless otherwise provided hereunder. This Agreement shall inure to the benefit of and be binding upon You, First Choice Power, and their respective affiliates, successors and assigns.
(h) Contact. Should You have any questions regarding this Agreement, please contact First Choice Power at:
First Choice Power
12 Greenway Plaza, Suite 250
Houston, Texas 77046
© 2012 First Choice Power, Special Purpose L.P. All rights reserved.
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