This Direct Energy Refer-a-Friend Program Agreement (this "Agreement") is by and between you ("You" or "Your") and Direct Energy, L.P. ("Direct Energy"), and governs your participation in a customer referral marketing program, as described further below (the "Program").
As used in this Agreement, the term:
(a) "Bill Credit" means the credit described in Section 7(a). "Bill Credit" means the credits described in Section (a).
(b) "Customer" means a person or entity that is receiving electric service from Direct Energy.
(c) "Direct Energy's Proprietary Materials" means any materials including but not limited to promotional electronic banners, emails, text links, promotional videos and advertisements approved by Direct Energy which are provided or made available to You by Direct Energy for use in connection with the Program.
(d) "Direct Energy Website" means any and all of Direct Energy's Internet Websites, including but not limited to those located at http://www.directenergy.com and https://refer.directenergy.com.
(e) "Governmental Authority" means any governmental authority having competent jurisdiction over Direct Energy and its operations, including but not limited to the Public Utility Commission of Texas.
(f) "Objectionable Content" means any content found on an Internet Website (whether directly or indirectly, including but not limited to through a hyperlink, or online pop-up advertisement which Direct Energy 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, Direct Energy); (vii) material that violates the rights of privacy or publicity or constitutes a defamation against any person or entity (including, without limitation, Direct Energy); and (viii) material that breaches a term or condition of this Agreement.
(h) "Participant" means an individual or business that is an existing, active Direct Energy customer who refers Visitors (defined below) who apply for residential electric service with Direct Energy. A Qualifying Customer may also be a Participant. A Participant cannot be an employee or representative of Direct Energy or any of its affiliates, subsidiaries, vendors, consultants, brokers, sales agents or partners.
(i) "Qualifying Customer" means any person who (i) enrolls for residential electric service with Direct Energy and is a new customer; (ii) enrolls at an authorized Direct Energy office, by phone, or by accessing the Qualifying Website by clicking on the Qualifying Hyperlink, and completing Direct Energy's online customer enrollment form on the Direct Energy Website (as associated with the Qualifying Hyperlink),(iii) receives an enrollment confirmation from Direct Energy, and (iv) paying an enrollment deposit, if required, to Direct Energy. In addition, You must use Your Referral ID in order for a Visitor to become a Qualifying Customer.
(j) "Qualifying Hyperlink" means the hyperlink authorized by Direct Energy and provided to You by Direct Energy for placement or otherwise display on a Qualifying Website, and for use solely in connection with the Program.
(k) "Qualifying Website" means the Internet Website and landing page owned and operated by Direct Energy that allows Participant to add personalized content.
(l) "Referral ID" means a unique identification number assigned to every Direct Energy customer. The Referral ID must be presented at enrollment by manual entry, verbally, or by clicking on a unique link provided to the Participant.
(m) "Spam" means any unsolicited email, text message, or other electronic message that is transmitted or distributed in bulk or by single mailing, regarding Direct Energy or its products or services from You to individuals or entities who have not requested the information.
(n) "Term" means the length of time during which this Agreement is effective, as further described in Section 3(a) below.
(o) "Visitor" means any person who becomes a Qualifying Customer.
Description of the Program. The Program is a customer referral program. Direct Energy will provide You with Direct Energy's Proprietary Materials, which You will use to refer residential electric service applicants to Direct Energy who want to enroll with Direct Energy. A Visitor must enroll as a new customer for residential electric service with Direct Energy online through a Direct Energy Website or a Qualifying Website, by phone through the Direct Energy call centers, or by visiting an authorized Direct Energy local office. If the Visitor becomes a Qualifying Customer, You will receive Bill Credits as described in Section 7(a).
(a) Every Direct Energy Customer with an active account is eligible to participate in the Program. Each Customer will receive a unique Referral ID that must be used at the time of enrollment of the Qualifying Customer in order for the Participant to be eligible to receive Bill Credits or to be eligible to compete for the cash incentives described in Section 7.
(c) Processing of Enrollments.
i. All Visitor enrollments related to this Program must be processed solely through Direct Energy. Participant is not authorized to participate in any phase of the enrollment process except as expressly provided in this Agreement. . Any enrollments processed by a party other than Direct Energy will not constitute a Qualifying Customer and no Bill Credits will be due for said customer. In addition, such enrollments shall not count toward a Participant's number of Bill Credits for the purpose of becoming eligible for the cash incentives described in Section 7(a).
ii. Participant has no right to administer or provide any aspect of any customer service requests, billing or collection of bill payments.
iii. Direct Energy reserves the right to reject any request for enrollment at its sole discretion.
(d) Tracking of Enrollments. Direct Energy will track the number of enrollments of Visitors for each Participant through a Participant's Referral ID.
(e) Visitors. Every Visitor who enrolls through Direct Energy for residential electric service is a Customer of Direct Energy.
(f) Responsibility of Participants
i. The Participant is solely responsible for all development, operation, maintenance and costs, fees, and expenses of any nature whatsoever associated with participating in the Program.
ii. A Participant in the program has no authority to make or accept any offer on behalf of Direct Energy.
iii. Direct Energy shall not be responsible for a Participant's representations that conflict with Direct Energy's internal policies and procedures, laws, rules, or regulations.
iv. A Participant shall not provide any pricing information or other plan details to any Visitor whether verbally, in writing, electronically, or otherwise. Direct Energy reserves the right to specify and/or modify pricing and all other characteristics of its products or plans, at any time at its sole discretion, including but not limited to eliminating a product or plan without notice to a Visitor, Participant, or Customer. Participant shall indemnify Direct Energy in accordance with Section 18 for any breaches of this paragraph.
v. Direct Energy is not responsible for a Participant's failure to provide the appropriate Referral ID, improper formatting of links, malfunctions of a Qualifying Website or Qualifying Link, typographical errors, or other deficiencies or conditions that may result in failure of Participant's referrals of Visitors to Direct Energy.
(g) Questionable Marketing Tactics and Spam
i. Any Participant who sends or promotes Spam will be immediately terminated from participation in the Program and will not be eligible for cash incentives. As of the date of termination of Participant's participation in the Program, the Participant will not be eligible for any Bill Credits related to the Program.
ii. The Participant shall not use any purchased mailing lists to identify or refer potential Visitors under the Program, regardless of the opt-in procedures associated with such lists.
iii. The Participant shall not advertise or mention Direct Energy, its products, services, or plans in any manner whatsoever on or in connection with Websites or other media that promote sexually explicit material, violence, illegal activities, Warez, pirated materials or discrimination of any type.
iv. The Participant shall not post any advertisements or mention Direct Energy, its products, services or plans if such postings violate the posting rules of newsgroups, chat rooms, blogs, ICQ, message boards, banner networks, hit farms, or guest books Website. In accordance with Section 18, Participant shall indemnify Direct Energy for Participant's violation of this provision.
v. The Participant must comply with all applicable laws, rules, and regulations, including but not limited to the Federal CAN-SPAM Act. The Participant shall not artificially inflate traffic counts using any device, program, robot or any other means to direct or redirect Visitors to Direct Energy.
(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 cease to be a Direct Energy customer; (iii) Direct Energy elects to terminate this Agreement any time at its sole discretion, and without notice to You; or (iv) Direct Energy discontinues the Program at its sole discretion, for any reason, and without notice to You.
(c) Effect of Termination. Within fifteen (15) days after the termination of this Agreement, You shall cease using copies of the Direct Energy Proprietary Materials and any other materials Direct Energy provided or made available to you in connection with this Program, and destroy all copies of said materials in Your possession, custody or control in a responsible manner. You shall be entitled to receive Bill Credits earned by You, if any, up to and including the date of termination of this Agreement. Direct Energy reserves the right to withhold Bill Credits to You for a reasonable time (determined in its sole discretion) to ensure that the amount of Bill Credits You receive is accurate.
(a) Direct Energy grants the Participant a non-exclusive, revocable, nontransferable, and limited license to use the Direct Energy Proprietary Materials it provides to the Participant in connection with the Program for the sole and limited purpose of You identifying yourself as a Participant in the Program.
(b) You shall not modify any Direct Energy Proprietary Materials or any other materials Direct Energy provides or makes available to You in connection with the Program. Direct Energy reserves all rights to the Direct Energy Proprietary Materials and all other materials Direct Energy provides or makes available to You in connection with the Program.
(c) The Participant shall not use any of the Direct Energy Proprietary Materials or other materials Direct Energy provides in a manner that has the potential to cause harm or damage of any kind whatsoever to Direct Energy's image, brand, or any aspect of its business.
(d) This license is revocable when the Participant is no longer a customer in good standing with Direct Energy.
(e) The license granted herein to the Participant will be immediately revoked by Direct Energy when a Participant is no longer participating in the Program. Nothing in this Agreement shall restrict or limit Direct Energy's right to revoke a license at any time without cause.
You shall not perform (or allow or authorize others to perform) any of the following acts without the prior written consent of Direct Energy:
(a) Alter, change or otherwise modify the Program, the Materials, or the Direct Energy Website, including but not limited to translations to a language other than those provided by Direct Energy;
(b) Distribute, display, transmit, disclose, disseminate, release, or otherwise use any data or other information derived from the Program about Direct Energy or its business endeavors, except as expressly authorized in this Agreement;
(c) Include or allow the inclusion of Objectionable Content in or in connection with the promotion of the Program and Direct Energy;
(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 Direct Energy Website;
(g) Employ or allow the use of any technology which may damage, harm, or compromise the Program or the Direct Energy Website including but not limited to, "cookie-stuffing" methods, "spyware" programs, viruses, robots or "bots", worms, and data mining programs;
(h) Allow any technology which may damage, harm, or compromise the Program or the Direct Energy Website including but not limited to "cookie-stuffing" methods, "spyware" programs, viruses, robots or "bots", worms, and data mining programs to infiltrate the Program or the Direct Energy Website from the Qualifying Website;
(i) Cause or allow the appearance that a Visitor to the Qualifying Website is visiting the Direct Energy Website by, including but not limited to "framing" or "wrapping" of the Direct Energy Website by the Qualifying Website;
(j) Cause or allow any endorsement, sponsorship or recommendation of You or the Qualifying Website by Direct Energy;
(k) Distribute, display, transmit, disclose, disseminate, or otherwise release the Direct Energy Proprietary Materials prior to the release date determined by Direct Energy in its sole discretion;
(l) Purchase any goods or services sold or marketed through the Direct Energy Website for resale or commercial use of any kind;
(m) Use "keyword advertising" in connection with the Program, the Qualifying Website, or the Direct Energy Website;
(n) Process or perform any aspect of the enrollment process; or
(o) Offer any consideration or incentive on behalf of You or Direct Energy in exchange for Visitors enrolling with Direct Energy.
You are solely responsible for the content of a Qualifying Website registered to You,. In addition, You shall:
(a) Regularly maintain the appropriateness of all content on the Qualifying Website;
(b) Regularly monitor the Qualifying Website for any content that may constitute Objectionable Content;
(c) Immediately remove any Objectionable Content from the Qualifying Website when it is discovered;
(d) Upon discovery of any Objectionable Content, notify Direct Energy by email within six hours or in writing within five business days (even if You have already removed the Objectionable Content); and
(e) Immediately notify Direct Energy via email of any technical or other problems affecting the Qualifying Website or Your participation in the Program.
(a) Calculation of Bill Credits. In full consideration of Your participation in the Program, Direct Energy will provide You with a Bill Credit to Your account as follows:
i. $5.00 for each Qualifying Customer You refer under the Program (one Qualifying Customer per Electric Service Identification Number (ESID) who lives in a single family detached home, after the Qualifying Customer pays for one month of electric service to Direct Energy
ii. $2.50 for each Qualifying Customer You refer under the Program (one Qualifying Customer per Electric Service Identification Number (ESID) or apartment or unit number, who lives in a multi-family home, after the Qualifying Customer pays for one month of electric service to Direct Energy
iii. The maximum number of Bill Credits You may receive during the Term of this Agreement and under the Program is limited to thirty-six (36) months from the date the Qualifying Customer pays the first month's full payment on account.
(b) Timing of Bill Credits. You will receive any applicable Bill Credits to Your account during each applicable accounting period and in accordance with Direct Energy's regular accounting standards and practices. All determinations regarding eligibility for Bill Credits, the number and dollar amount of Bill Credits to be applied to Your account, as well as the timing of application of the Bill Credits shall be made by Direct Energy, at its sole discretion, and that decision shall be final and binding.
(c) Incentive to Qualifying Customer. Each Qualifying Customer (one per account) will receive a bill credit as described in the terms of the offer letter. Direct Energy reserves the right to modify or discontinue the program at any time.
Direct Energy may report the total amount of Bill Credits 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 Direct Energy to make any payments to compensate You for any adverse tax effect associated with the Bill Credits or any other payments made or to be made pursuant to this Agreement.
You shall not be entitled to any compensation, payments or benefits under this Agreement or in connection with the Program except as expressly identified in this Agreement.
(a) Ownership. You hereby acknowledge and agree that: (i) all rights, title and interests in and to the Direct Energy Proprietary Materials, the Direct Energy Website and any elements and derivatives thereof (including, without limitation, copyrights, trademarks, patents, trade secrets, and ideas) are the exclusive property of Direct Energy; 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 Direct Energy's rights, title and interests in and to the Materials, the Direct Energy Website 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 (whether or not registered with any state or federal agency) appearing within or in connection with the Program, the Direct Energy Proprietary Materials, the Direct Energy Website or any elements or derivatives thereof without the prior written consent of Direct Energy.
(c) Reservation of Rights. Nothing in this Agreement shall restrict or prevent Direct Energy from using, selling, licensing or otherwise exploiting the Program, the Direct Energy Proprietary Materials, the Direct Energy Website or any elements or derivatives thereof in any language or in manner, medium or form.
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.
You acknowledge that the unauthorized use, copying or reproduction of the Direct Energy Proprietary Materials or the Direct Energy Website will cause Direct Energy irreparable harm and significant injury, which may be difficult to measure with certainty or to compensate through monetary damages. Therefore, You hereby agree that if You, or Your agents, whether or not authorized by You do directly, indirectly, or inadvertently cause the unauthorized use, copying or reproduction of the Direct Energy Proprietary Materials or the Direct Energy Website, Direct Energy 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. Direct Energy's right to obtain such relief shall not limit its right to obtain other remedies.
YOUR USE OF THE PROGRAM, THE DIRECT ENERGY PROPRIETARY MATERIALS, THE DIRECT ENERGY WEBSITE, OR ANY OTHER GOODS, SERVICES OR RIGHTS PROVIDED OR TO BE PROVIDED TO YOU HEREUNDER IS ENTIRELY AT YOUR OWN RISK. DIRECT ENERGY DOES NOT MAKE, NOR HAS DIRECT ENERGY 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 DIRECT ENERGY WEBSITE, OR ANY OTHER GOODS, SERVICES OR RIGHTS PROVIDED OR TO BE PROVIDED TO YOU HEREUNDER. ACCORDINGLY, DIRECT ENERGY 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. DIRECT ENERGY HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE PROGRAM, THE MATERIALS, THE DIRECT ENERGY WEBSITE, 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, THE DIRECT ENERGY WEBSITE, 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.
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, LOSS OF ACTUAL OR POTENTIAL INCOME OR EARNING POTENTIAL, COMPENSATION, OR RENUMERATION OF ANY KIND, OR THE VALUE OF LOST DATA) FROM DIRECT ENERGY, OR TO SEEK ANY INJUNCTIVE OR EQUITABLE RELIEF AGAINST DIRECT ENERGY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DIRECT ENERGY SHALL NOT BE LIABLE TO YOU,AND DIRECT ENERGY SHALL NOT BE OBLIGATED TO INDEMNIFY YOU FOR ANY DIRECT, INDIRECT, ACTUAL, SPECIAL, PUNITIVE OR OTHER MONETARY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY ATTORNEYS' FEES, COSTS, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF ACTUAL OR POTENTIAL INCOME OR EARNING POTENTIAL, COMPENSATION, OR RENUMERATION OF ANY KIND, OR THE VALUE OF LOST DATA) ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM OF BREACH OF WARRANTY, TORTIOUS INTERFERENCE, RECKLESSNESS, GROSS NEGLIGENCE, NEGLIGENCE, PRODUCTS LIABILITY, INFRINGEMENT, VIOLATION OF PRIVACY,DEFAMATION, FRAUD, SLANDER, LIBEL, MISTAKE, OR MISREPRESENTATION, OR FAILURE OF THE DIRECT ENERGY WEBSITE, TELEPHONE LINES, OR ANY ELECTRONIC COMMUNICATION CAPABILITIES.
You represent, warrant and covenant to Direct Energy that: (a) You have read and understand the terms and conditions of this Agreement; (b) You have the full and exclusive right and authority to enter into and perform this Agreement and participate in the Program; (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; or breach any contract or agreement to which You are a party; (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 DIRECT ENERGY,ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PARTNERS, AGENTS, EMPLOYEES, AFFILIATES, CONSULTANTS, ATTORNEYS, AGENTS, CONTRACTORS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE COSTS AND ATTORNEYS' FEES) INCURRED AS A RESULT OF OR ARISING OUT OF ANY BREACH OR CLAIM OF BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES AND COVENANT BY YOU. 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) DIRECT ENERGY TO BECOME THE SUBJECT OF (A) A COMPLAINT TO THE BETTER BUSINESS BUREAU; (B) AN INFORMAL OR FORMAL COMPLAINT TO ANY GOVERNMENTAL AUTHORITY, INCLUDING BUT NOT LIMITED TO THE PUBLIC UTILITY COMMISSION OF TEXAS; (C) AN INVESTIGATION BY OR ADMINISTRATIVE PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY, INCLUDING BUT NOT LIMITED TO THE PUBLIC UTILITY COMMISSION OF TEXAS; (D) A LAWSUIT OR OTHER LEGAL OR EQUITABLE PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY, INCLUDING BUT NOT LIMITED TO THE PUBLIC UTILITY COMMISSION; OR (E) A FINE, SANCTION, OR OTHER PENALTY IMPOSED ON DIRECT ENERGY BY ANY GOVERNMENTAL AUTHORITY, INCLUDING BUT NOT LIMITED TO THE PUBLIC UTILITY COMMISSION OF TEXAS.
NO REPRESENTATION. DIRECT ENERGY MAKES NO REPRESENTATION THAT PARTICIPATION IN THIS PROGRAM WILL RESULT IN YOU RECEIVING OR BECOMING ENTITLED TO RECEIVE ANY COMPENSATION, RENUMERATION, CREDITS, INCENTIVES, OR PAYMENTS, OR THE POTENTIAL TO RECEIVE OR EARN ANY AMOUNT WHATSOEVER, OTHER THAN AS EXPRESSLY IDENTIFIED IN THIS AGREEMENT.
Direct Energy 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 on the Direct Energy Website. Accordingly, please review this Agreement periodically. Your continued participation in the Program after such posting means You accept such modifications. Direct Energy 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 on the Direct Energy Website. Your continued participation in the Program after such posting constitutes Your acceptance of the Agreement and Program as modified.
Direct Energy reserves the exclusive right to, in its sole discretion, temporarily or permanently discontinue the Program at any time. Direct Energy shall not be liable to You for any such suspension or termination, except as expressly provided herein.
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."
(a) No Assignment. You shall have no right to assign, delegate or otherwise transfer any rights or obligations under this Agreement. Any attempts to make such assignments, delegations or transfers shall be null and void. Direct Energy may assign, delegate, or otherwise transfer its rights or obligations under this Agreement without Your consent and without prior notice to You.
(b) No Relationship. This Agreement shall not create any fiduciary relationship, agency relationship, employment relationship, independent contractor relationship, partnership, franchise, or joint venture between You, Your business, Your employer, Your employees, or Your agents (whether or not authorized by You) and Direct Energy.
(c) Waiver of Rights. The delay or failure of Direct Energy to exercise a right or remedy available hereunder shall not constitute a waiver of such right or remedy.
(d) Survival. Provisions that by their nature should survive termination or expiration of this Agreement shall survive.
(e) Severability. If any term or condition of this Agreement or the Program 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 without regard to the principles of conflicts of law. YOU HEREBY IRREVOCABLY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN HARRIS COUNTY, TEXAS. VENUE FOR THE ADJUDICATION OF ANY DISPUTE, CONTROVERSY OR CLAIM ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE EXCLUSIVELY IN HARRIS COUNTY, TEXAS. The prevailing party of such dispute, controversy or claim shall be entitled to reasonable and necessary costs and attorneys' fees.
(g) Entire Agreement. This Agreement sets forth the entire understanding between You and Direct Energy and supersedes any prior agreements, if any, made between You and Direct Energy (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 Direct Energy. This Agreement shall inure to the benefit of and be binding upon You, Direct Energy, and their respective successors and assigns.
(h) No Restriction on Contracting. Nothing in this Agreement or in the Program shall prohibit or limit Direct Energy's ability and right to create, conduct, and administer programs, contests, drawings, or sweepstakes in addition to the Program that is the subject of this Agreement, the timing and details of which shall be made at Direct Energy's sole discretion.
(i) Contact. If You have any questions regarding this Agreement, please contact Direct Energy at:
Direct Energy, L.P.
12 Greenway Plaza Suite 250
Houston, TX 77046
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