GENERAL TERMS AND CONDITIONS FOR SERVICES

Published: June 3, 2019

1. AGREEMENT. These General Terms and Conditions for Services (these “Terms and Conditions”) apply to any Insertion Order referencing these Terms and Conditions (each an “Insertion Order”) entered into between SaveOnEnergy, LLC, a Texas limited liability company (“SOE”), and the energy company identified on the Insertion Order (the “Company”). SOE and the Company are hereinafter referred to severally as a “party” and jointly as the “parties”. Upon the parties executing an Insertion Order, these Terms and Conditions and the Insertion Order will be a binding contract between the parties. In the event of any conflict between these Terms and Conditions and an Insertion Order, these Terms and Conditions shall govern unless the Insertion Order expressly states that the terms and conditions of the Insertion Order shall control.

2. DEFINITIONS. The following capitalized terms used in this Agreement have the meanings set forth below.

2.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or otherwise, and such control will be presumed if an entity owns 50% or more of the ownership interests, directly or indirectly, of any other entity.

2.2. “Agreement” means these Terms and Conditions and each Insertion Order.

2.3. “Call Center Enrollment” refers to providing users of the SOE Comparison Platform with the opportunity to enter into an Energy Contract by completing the enrollment process with a call center sales professional.

2.4. “Commissions” means the commission charges set out in an Insertion Order.

2.5. “Company Materials” means any information, data, and/or marketing materials provided by or on behalf of the Company or any Company Affiliate to SOE for use, or otherwise approved by the Company for use by SOE, in connection with the Services, including, without limitation, any of the Company’s or its Affiliates’ brand names, trade names, trademarks, service marks, designs, logos, graphics, advertising, text, Enrollment Requirements, Energy Plans, and other data and information provided by or on behalf of the Company or its Affiliates for use in connection with the Services.

2.6. “Confidential Information” means, subject to Section 8 below, non-public, proprietary information of a party or its Affiliates in oral, tangible or electronic form, including but not limited to business plans, business strategy, methods of doing business, distribution channels, information about a party’s (or its Affiliates’) costs or pricing structure, and technological innovations used in the business.

2.7. “Customer” means each person or entity that enters into an Energy Contract.

2.8. “Energy Contract” means a contract between a Customer and the Company for the provision of Energy Services arising from the performance of the Services.

2.9. “Energy Plans” refers to plans for the purchase of Energy Services (including all relevant details such as the energy rates charged for such Energy Services) the Company makes available through the SOE Comparison Platform.

2.10.“Energy Services” refers to the energy services indicated on an Insertion Order (e.g., electricity, gas, and solar) that the Company authorizes SOE to include in the Services.

2.11. “Enrollment Requirements” refers to the Company’s specifications for all aspects of the sales process related to the entry into Energy Contracts, including, without limitation, customer information to be gathered for the Company to assess eligibility, disclosures regarding the purchase of Energy Services (including any disclosures required by law, rule, or regulation), and, as applicable, brand-specific scripting for Call Center Enrollment and Online Enrollment.

2.12. “Online Enrollment” refers to providing users of the SOE Comparison Platform with the opportunity to submit an application for Energy Contracts using an online cart or similar application.

2.13. “Provider” means any person or entity that promotes goods or services through the SOE Comparison Platform, and includes SOE, SOE’s Affiliates, the Company, and other customers of SOE or SOE’s Affiliates.

2.14.“Services” means the services that SOE will provide to the Company in accordance with this Agreement, including the marketing and promotion of the Company’s Energy Services on the SOE Comparison Platform and, to the extent applicable, enrollment of Customers in the Company’s Energy Services in the manner indicated on the applicable Insertion Order.

2.15.“Territory” refers to those states in which the Company’s Energy Services are available for purchase through the SOE Comparison Platform.

2.16. “Visitor” refers to residential and commercial customers who use the SOE Comparison Platform. A Visitor may be, and may apply for and become, a Customer of one or more Providers.

3. SOE COMPARISON PLATFORM. SOE uses websites, applications, phone services, or other platforms to provide residential and commercial consumers with the ability to search for and compare energy service offerings (e.g., electricity and gas) and pricing (the “SOE Comparison Platform”). SOE operates the SOE Comparison Platform under different brands such as “SaveOnEnergy”, “Choose Energy”, and “Choose Texas Power”, and makes the SOE Comparison Platform available through websites, applications and/or other platforms that may be owned or operated by SOE, its Affiliates (e.g., MYMOVE), or others. Except for the Company Materials agreed to be displayed in the SOE Comparison Platform pursuant to an Insertion Order, the content, appearance, design, functionality, accessibility, components of the SOE Comparison Platform on which the Company’s Energy Services are marketed, and all other aspects of the SOE Comparison Platform, as modified from time to time, are determined by SOE in its sole discretion. The SOE Comparison Platform generates user traffic from Visitors who may be referred to the Company or other Providers to apply for goods or services. SOE and its Affiliates may communicate with, market to, and transact with Visitors through the SOE Comparison Platform or any other means. If the Services will include Online Enrollment and/or Call Center Enrollment, such Services must be identified on an Insertion Order signed by the Company and SOE. SOE will enroll Customer’s in Energy Contracts in the manner specified by the Company Materials.

4. COMPANY’S USE OF THE SOE COMPARISON PLATFORM.

4.1. The Company will provide accurate and complete information for each of its Energy Plans and Enrollment Requirements in the format and medium specified by SOE, and the Company will promptly update that information as necessary to ensure it remains accurate and complete at all times. The Company also will ensure that the Company Materials comply with all applicable laws, rules, and regulations. The Company will notify SOE which elements of the Company Materials are required by applicable law, rules or regulation to be provided to Visitors. The Company will supply to SOE all aspects of the Company Materials that are needed for SOE to provide the Services.

4.2. The Company will provide SOE with the Enrollment Requirements for SOE’s provision of the Online Enrollment and/or Call Center Enrollment services. The Company is solely responsible for: (A) establishing Enrollment Requirements; (B) assessing the information supplied by a Visitor seeking to enter into an Energy Contract; (C) determining whether to extend an offer to enter into an Energy Contract with a Visitor; and (D) verifying Visitor identity as well as generally ensuring that Visitor are not engaging in wrongful conduct (e.g., fraud) in connection with entering into Energy Contracts. The Company will accept all Energy Contracts entered into accordance with the Enrollment Requirements.

4.3. The SOE Comparison Platform utilizes a universal credit check process to provide Visitors with energy plans for which they qualify. As a condition to using the Services, the Company must utilize SOE’s credit check process and no other additional or supplemental credit check process as a requirement to enroll Visitors in the Company’s Energy Services. The Company will provide SOE with its customer eligibility criteria (including credit threshold and acceptance policies) that are in effect from time to time along with any other customer eligibility information that SOE reasonably requests from time to time.

4.4. The Company will implement and maintain a secure application programming interface (“API”) as specified by SOE between SOE and the Company for the exchange of Customer information and enrollment information. The Company agrees to provide the necessary information technology support and to take such other actions as may be required to facilitate SOE’s use of the Company’s systems required to provide, as applicable, Online Enrollment and Call Center Enrollment. Such information technology support will include, without limitation, the Company providing a full API and landing page to coordinate electronic exchange of information and to enable enrollment into Energy Contracts.

4.5. The Company will provide the following written notices to SOE in relation to changes to the Company Materials and API feeds utilized by SOE in connection with the Services:

4.5.1. for changes to Company Materials other than changes to Energy Plans and Enrollment Requirements the Company will provide SOE with at least five business days’ written notice prior to the date on which SOE must update the Company Materials available publicly through the Services;

4.5.2. for changes to the Company’s Energy Plans (including without limitation pricing of the Energy Services) the Company will provide SOE with at least three business days’ written notice prior to the requested implementation date on the SOE Comparison Platform;

4.5.3. for changes to the Company’s Enrollment Requirements the Company will provide SOE with at least ten business days’ written notice prior to the requested implementation date on the SOE Comparison Platform; and

4.5.4. for any changes to the API feeds utilized by the parties in connection with the Services, the Company will provide SOE with at least one month’s written notice prior to the implementation date of such changes. Notwithstanding any other provision of these Terms and Conditions, if the Company fails to communicate any changes to such API feeds as set forth in this Section, and such changes result in a malfunctioning consumer experience on the SOE Comparison Platform, the Company will pay SOE for the amount of commissions that SOE lost due to an error caused by an API change not noticed to SOE in accordance with this Section. Such lost commissions will be calculated based on the average daily commissions earned by SOE over the three-month period immediately preceding the API change.

4.6. SOE does not make any representations or warranties regarding the number of sales leads and Energy Contracts that may be transmitted to the Company or the validity, accuracy, or completeness of any information pertaining to such sales leads.

4.7. The Company grants SOE a royalty-free, non-exclusive, right and license for the Term to: (A) use, reproduce, perform, display, distribute, adapt, re-format, and otherwise commercially exploit the Company Materials in any manner in connection with providing the Services; and (B) sublicense the foregoing rights to SOE’s Affiliates solely to the extent necessary for the operation of the SOE Comparison Platform on such Affiliates’ websites or other similar applications and platforms. Such right and license includes the right to use: the Company’s trademarks that constitute Company Materials as keywords to trigger paid search advertisements; and the Company’s trademarks with advertisements that promote, directly or indirectly, the Company’s Energy Services on the SOE Comparison Platform.

4.8. SOE may provide Visitors with the opportunity to submit reviews, published on the SOE Comparison Platform, of the Company’s Energy Services, customer service, and other topics reasonably related to customer experience and use of the Energy Services. SOE does not endorse and is not responsible or liable for the content of any reviews of the Company’s Energy Services. The statements, information, and ratings contained in any such reviews are solely the opinion of the Visitor submitting such review and do not reflect the opinion of SOE. The Company will not incentivize Visitors to review the Company on the SOE Comparison Platform. SOE may in its sole discretion, but is not obligated to, remove or refuse to publish any review that it deems to be inconsistent with an experience-based opinion form or that it deems to be otherwise objectionable.

4.9. Any password SOE provides to the Company may be used only during the Term and only as specified by SOE and as needed for the Company to obtain the Services. The Company is responsible for maintaining the security of its password. The Company may not disclose its password to any third party (other than third parties authorized by you to use the Company’s account in accordance with this Agreement) and is solely responsible for any use of or action taken under the Company’s password. If the Company’s password is compromised, the Company must immediately change its password and notify SOE of such occurrence.

5. REPRESENTATIONS AND WARRANTIES.

5.1. Regulatory Compliance. Each party will, during the Term, be in compliance with all applicable laws, regulations, rules and requirements applicable to their activities in connection with the Services and the Energy Services.

5.2. Authority. As of the Effective Date and throughout the Term, each party represents and warrants to the other party that: (i) it has all corporate power and authority to enter into and perform its obligations under this Agreement; and (ii) it is not subject to any other obligation, restriction, or agreement that would prevent its performance of this Agreement.

5.3. PCI Compliance. If, in the course of its engagement by the Company, SOE has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information, SOE shall at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at SOE’s sole cost and expense.

5.4. No Implied Rights. All software, documentation, reports, information and materials, and derivative works of any of the foregoing or of the SOE Comparison Platform, including all inventions, know-how, processes, patent rights, moral rights, copyrights, trade secrets, and all other proprietary and intellectual property, developed by or on behalf of SOE, whether independently or in connection with the Services, are and will remain the property of SOE. Notwithstanding anything to the contrary in this Agreement, neither the delivery or use of the SOE Comparison Platform or the Services, nor any provision of this Agreement will be deemed or construed to grant to the Company either expressly, by implication or by way of estoppel or otherwise, any right or license under any of SOE’s or SOE’s Affiliates’ intellectual property. The Company shall not use the Services or any component thereof for any purpose other than as expressly set forth in this Agreement. There are no implied rights.

5.5. Virus. Each party shall ensure that its software, systems, platforms, and materials utilized or leveraged in connection with its performance of its obligations under this Agreement do not cause the introduction to the other party of “viruses”, “worms”, “Trojan horses”, “e-mail bombs”, “cancelbots”, or other similar destructive or harmful software, code, or computer programming routines.

5.6. The Company’s Representations and Warranties. The Company represents and warrants that: (i) the Company Materials comply with all applicable laws, rules and regulations; (ii) the Company Materials are accurate and complete and not misleading; and (iii) the use of the Company Materials by SOE, providing such use is in accordance with this Agreement, shall not breach (x) any third party rights or (y) any applicable laws, rules, and regulations.

6. TAXES.

6.1. Except as provided below, each party shall be responsible for its own taxes, including income, franchise, privilege, gross receipts, sales and use, excise, property, payroll and any other taxes or assessments that may be levied by a taxing jurisdiction.

6.2. SOE shall be responsible for any sales, use, excise, value-added, services, consumption and other taxes and duties payable by SOE on the goods or services used or consumed by SOE in providing the Services. The Company shall be responsible for any sales, use, excise, value-added, services, consumption or other tax that is imposed on the Company’s purchase of goods and/or services.

6.3. The parties shall reasonably cooperate with each other to enable each to more accurately determine its own tax liability, to minimize such liability to the maximum extent legally permissible, and to address questions or audits by taxing authorities.

7. INVOICING AND PAYMENT.

7.1. In consideration of the provision of the Services by SOE and the rights granted to the Company under this Agreement, the Company shall pay the fees set forth in each Insertion Order executed by the Company and accepted by SOE. Unless otherwise set forth in an Insertion Order, SOE shall invoice the Company for Commissions due each month.

7.2. The Company shall make all payments hereunder in US dollars by the method designated by SOE in writing to the Company.

7.3. The Company shall pay SOE Commissions owed with respect to Customer acquisition on behalf of the Company within thirty days of the last day of the calendar month in which such Customer enrolls as a Customer of the Company (such charges, if included on an Insertion Order, are typically referred to as “Customer Acquisition Bounty”). Additionally, any residual fees related to a Customer’s ongoing use of the Company’s Energy Services shall be payable by the fifteenth day of each calendar month during the enrollment life of such Customer (such charges, if included on an Insertion Order, are typically referred to as “Customer Residual”). A Customer’s enrollment life is broadly construed and refers to the period of time the Customer is retained by the Company.

7.4. All past due payments will bear interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less.

8. CONFIDENTIALITY.

8.1. Each party acknowledges that, by virtue of and in the course of this Agreement, it may receive or otherwise become aware of Confidential Information belonging to the other party or its Affiliates.

8.2. Confidential Information will include without limitation any document marked “Confidential”, and any information which the receiving party has been informed is confidential or which it ought reasonably to expect the disclosing party would regard as confidential.

8.3. Confidential Information will exclude information which: (i) at the time of receipt by the receiving party is in the public domain; (ii) subsequently comes into the public domain through no fault of the receiving party or any of its employees, Affiliates, or subcontractors; (iii) is lawfully received by the receiving party from a third party on an unrestricted basis; (iv) is generated independently by the receiving party; and/or (v) can be demonstrated to have already been known to the receiving party before receipt hereunder.

8.4. Each party undertakes to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own Confidential Information to keep the other party’s Confidential Information reasonably secure (but in no event using less than a reasonable degree of care). Without limiting the generality of the foregoing, each party will institute, implement and maintain at all times during the Term appropriate and commercially reasonable information security measures designed to: (i) help ensure the security and confidentiality of the other party’s Confidential Information, (ii) reduce the risk of reproduction, misuse, or modification of the other party’s Confidential Information, (iii) identify potential threats or hazards to the security or integrity of the other party’s Confidential Information and help protect against any anticipated threats or hazards, and (iv) help protect against unauthorized access to or use of the other party’s Confidential Information.

8.5. Neither party will at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorize or permit any third party within its control to do the same, other than for the sole purpose of exercising its rights and/or performing its obligations in connection with this Agreement.

8.6. Neither party will be in breach of this Section 8 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the owner of the Confidential Information is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

8.7. Each party acknowledges that money damages may not be a sufficient remedy for any prohibited or unauthorized disclosure or use of Confidential Information of the other party and that the other party will be entitled, in addition to any other remedies available at law or otherwise, to seek an order of specific performance or other equitable relief against the breaching party, without needing to post bond or other surety.

8.8. The terms of this Agreement shall be considered confidential and any publication or disclosure by the Company relating to this Agreement (including publication of the URL at which these Terms and Conditions are available) must be approved in advance by SOE in writing.

9. REPORTING; AUDIT RIGHTS.

9.1. The Company agrees to notify SOE of the number of Energy Contracts it enters into and to comply with the reporting requirements set forth below. Additionally, the Company will provide any further reporting reasonably required by SOE in order to understand the status of Energy Contracts for purposes of establishing the Commissions SOE is owed.

9.2. Within five days of the last day of each calendar month, the Company will provide SOE with a monthly report detailing the following information: sales by date; the Company’s ongoing electricity service relationships with Customers; Energy Services by Customer; all enrolled and rejected Customers in the previous month; unique ID shared between SOE and the Company (e.g., Contract ID); and customer data sufficient for SOE to confirm the Company’s calculation and payment of Commissions, including customer name, address, phone, email address, ESI Id# or Utility Account #, ContractID (or other internal system identifiable ID), enrollment date, flow start date, flow end date/cancellation date (if applicable), billing usage start date, billing usage end date, total usage, bounty commission amount, residual commission amount (for that billable period), and the type of Commission fee (e.g., Customer Acquisition Bounty or Customer Residual). Additionally, all reports must include detailed calculations for all Commissions due to SOE pursuant to this Agreement.

9.3. The Company must provide reporting in form and substance that is satisfactory to SOE. The Company must notify SOE thirty days’ prior to making any changes to the form, organization, delivery, or substance of the reporting.

9.4. The Company will maintain accurate records of such reports and associated Commissions for such time as may be required by law but in no event less than three years from the date of the report. SOE reserves the right to audit the Company’s books and records to the extent necessary to verify the accuracy of the Commissions due and owing to SOE under this Agreement. SOE may exercise its audit rights no more than once per calendar year, and it must provide at least thirty days’ prior written notice to the Company that it is exercising its audit rights.

10. INDEMNIFICATION.

10.1. The Company agrees to indemnify, defend and hold harmless SOE, SOE’s Affiliates, and SOE’s and SOE’s Affiliates’ respective members, officers, directors, employees, shareholders, agents, and representatives (each a “SOE Indemnified Party”) against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys’ fees) (each a “Claim”), asserted or alleged by any third party arising from or related to: (a) the Company’s actual or alleged breach of any obligations in this Agreement; (b) any of the Company’s Energy Services (including their offer, enrollment process, sale, performance, or fulfillment), the Company Materials, Energy Plans, Energy Services, and any personal injury, death, or property damage related thereto; (c) the Company’s taxes assessed in connection with the Services, or (d) any claim that the Company Materials provided for use in the Services violates any applicable law, rule or regulation or infringes or misappropriates any third party’s copyright, patent, trademark, trade secret or other proprietary rights.

10.2. SOE agrees to indemnify, defend and hold harmless the Company, the Company’s Affiliates, and the Company’s and the Company’s Affiliates respective members, officers, directors, employees, shareholders, agents, and representatives (each a “Company Indemnified Party”) against any Claim asserted or alleged by any third party, arising from or related to (a) SOE’s actual or alleged breach of any obligations in this Agreement, or (b) any claim by a third party that the Services (except for Company Materials displayed in compliance with this Agreement) infringes or misappropriates any third party’s copyright, patent, trademark, trade secret or other proprietary rights.

10.3. Each SOE Indemnified Party or Company Indemnified Party, as applicable, seeking indemnification (each an “Indemnified Party”) shall give the party against which it is making a claim pursuant to this Section (the “Indemnifying Party”) prompt notice of any Claim that may give rise to any indemnification obligation hereunder and the Indemnifying Party shall have the right to assume the defense (at the Indemnifying Party’s sole expense) of or with respect to any such Claim, through counsel of the Indemnifying Party’s own choosing, by so notifying the Indemnified Party within thirty days after the receipt by the Indemnifying Party of such notice from the Indemnified Party; provided, however, that any such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations of the Indemnifying Party hereunder in the absence of actual and material prejudice. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of any such Claims (other than during any period prior to the Indemnified Party having given notice of such Claims as provided above). The Indemnified Party shall have the right to participate in the defense of any Claims and to employ counsel, at its own expense (except as otherwise provided herein), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense if it assumes such defense, and in the event of such assumption, the Indemnified Party shall cooperate, at the Indemnifying Party’s expense, in such defense. Notwithstanding the foregoing, if, under applicable standards of professional conduct, a conflict with respect to any significant issue between the Indemnified Party and the Indemnifying Party exists in respect of any such Claims, the Indemnifying Party shall pay the reasonable fees and expenses of such counsel as may be retained by the Indemnified Party in order to eliminate such conflict.

11. LIMITATIONS ON LIABILITY.

11.1. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOE COMPARISON PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND SOE MAKES NO OTHER WARRANTIES, GUARANTEES, CONDITIONS, OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, CONCERNING THE SOE COMPARISON PLATFORM, THE SERVICES, OR ANY PORTION THEREOF. SOE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE, SPECIFIC OR OTHERWISE, REGARDING THE SOE COMPARISON PLATFORM, THE SERVICES, OR ANY PORTION THEREOF. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, TO THE OTHER AS TO THE TOTAL AMOUNT OF REVENUE THAT WILL BE GENERATED BY EITHER PARTY AS A RESULT OF THIS AGREEMENT.

11.2. Limitation of Liability. Except for the Company’s payment obligations for the Services, notwithstanding any other provision of this Agreement each party’s entire aggregate liability and the other party’s exclusive remedies for any and all damages arising out of this Agreement and for the performance of the Services, regardless of the form of action, whether in contract, breach of warranty, indemnification, or tort, including negligence, strict liability or otherwise, shall be limited to the lesser of (i) $10,000,000, or (ii) the amount of fees paid by the Company to SOE for the Services during the twelve months immediately preceding the accrual of the claim.

11.3. WAIVER. IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REVENUE OR GOODWILL, IN ANY WAY ARISING FROM OR RELATING TO THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR PERFORMANCE OR NON- PERFORMANCE OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. FOR AVOIDANCE OF DOUBT THIS SECTION 11.3 DOES NOT LIMIT A PARTY’S OBLIGATION TO INDEMNIFY THIRD PARTY CLAIMS PURSUANT TO SECTION 10.

12. TERM AND TERMINATION.

12.1. Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter until the completion of the Services under all Insertion Orders (the “Term”). 12.2. Termination; Suspension of Services.

12.2.1. Either party may terminate any Insertion Order for any reason or no reason by providing the other party one hundred eighty days’ prior written notice.

12.2.2. Either party may terminate this Agreement immediately by written notice to the other party if the other party: (a) becomes insolvent; (b) makes a general assignment for the benefit of creditors; (c) suffers or permits the appointment of a trustee or receiver for all or any portion of the business or assets of such party; (d) files, or has filed against it or on its behalf, a petition in any bankruptcy court or under any bankruptcy or insolvency law, which petition is not dismissed within ninety days of the date it is filed; (e) is dissolved, liquidated or wound up; or (f) enters into an agreement with a third party to do any of the foregoing. In addition, either party may terminate this Agreement for material breach by the other party of any term of this Agreement that is not cured within thirty days after the allegedly breaching party’s receipt of written notice specifying the alleged breach.

12.2.3. The Company may terminate this Agreement by providing SOE one hundred seventy days’ prior written notice within ten days of the Company receiving a Change Notice (defined below). In the event the Company exercises its right to terminate the Agreement pursuant to this Section 12.2.3, the terms and conditions of this Agreement in effect prior to giving effect to the changes specified in the Change Notice shall remain in effect until the end of the Term. If the Company exercises its right to terminate the Agreement pursuant to this Section 12.2.3, SOE may in its sole discretion choose to terminate the Agreement at any time prior to the end of the Term upon thirty days’ prior written notice to the Company.

12.2.4. SOE may stop or delay all or a part of the Services for any reason, including (i) any material breach of this Agreement by the Company, pending cure thereof (including failure to timely pay Commissions); or (ii) material deterioration in the Company’s financial condition or the Company’s business reputation (including receipt by SOE of a material number of Customer complaints regarding the Company’s services).

12.3. Post-Termination Obligations.

12.3.1. If the Company’s Commission payments to SOE include an obligation to pay SOE a Commission related to a customer’s ongoing use or amount of usage of the Company’s Energy Services, the Company shall continue to pay such Commission despite the termination of this Agreement. For example, if an Insertion Order includes as a component of Commission an obligation by the Company to pay SOE a Commission calculated by reference to a Customers’ energy usage, such Commission shall be payable by the Company for so long as such Customers are retained by the Company, regardless of whether the Agreement is earlier terminated.

12.3.2. The terms of this Agreement that expressly or by their nature contemplate performance after the termination or expiration of the Agreement will survive the termination or expiration of the Agreement for any reason and continue in full force and effect. For avoidance of doubt, the provisions requiring indemnification, setting forth limitations of liability, the obligation to make any outstanding payments, and this Section 12.3, each, by their nature, contemplate performance or observance after this Agreement expires or terminates.

13. GENERAL PROVISIONS.

13.1. Relationship of Parties. This Agreement shall not be construed to create a partnership, joint venture, franchise or agency relationship between the parties, and neither party may bind or obligate the other party or make representations on the other party’s behalf.

13.2. Right to Negotiate. This Agreement does not constitute a standard form contract under applicable laws and was open to negotiation between the parties and is subject to the rights granted to the Company pursuant to Section 12.2.3. Each party agrees that the Agreement shall be deemed the joint work of the parties and that any presumption or rule requiring the construction or interpretation of the Agreement against the party drafting the Agreement shall not apply.

13.3. Amendments to this Agreement. SOE may amend any of the terms and conditions contained in these Terms and Conditions at any time and at SOE’s sole discretion. Any changes will be effective within thirty days after SOE has notified the Company in writing (including by email) that it has posted or otherwise made available to the Company the modified Terms and Conditions (the “Change Notice”). Except as otherwise set forth in these Terms and Conditions, by continuing using the Services following such thirty-day period, the Company agrees to be bound by all of the changes made to these Terms and Conditions, including changes to any and all documents and policies incorporated herein. If the Company does not agree with any of the amended terms of the Terms and Conditions, then the Company’s sole option is to terminate the Agreement in accordance with Section 12.2.3. EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS AND CONDITIONS, THE COMPANY’S CONTINUED USE OF THE SERVICES AFTER SOE’S POSTING OR NOTICE TO THE COMPANY OF ANY CHANGES TO THESE TERMS AND CONDITIONS WILL CONSTITUTE THE COMPANY’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. Except as set forth in this Section 13.3, any amendment to this Agreement must be in writing and signed by a duly authorized representative of SOE and the Company.

13.4. Insurance. The Company represents, warrants, and covenants that it maintains, and at all times during the Term will maintain, a comprehensive general liability insurance policy (with coverage amounts customary for the Company’s industry), insuring against liability for, among other things, data, IT, and security breaches. Within ten days of the Effective Date, and at any other time at the request of SOE, the Company will provide SOE with a certificate of insurance as evidence of the Company’s insurance coverage described in this Agreement.

13.5. Assignment. This Agreement may not be assigned without the other party’s prior written consent, except to an affiliate of a party, to a party’s successor pursuant to a merger, reorganization, consolidation or sale, or to an entity that acquires all or substantially all of a party’s assets or business for which the Services were acquired or are being used or by which the Services are offered. Each party shall cause its permitted assigns to be bound by the terms of this Agreement. Any attempted assignment contrary to the foregoing will be null and void from inception. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their legal representatives, heirs, successors, and permitted assigns. SOE may perform any of its obligations or exercise any of its rights under this Agreement through one or more of its Affiliates.

13.6. Interpretation. The section headings in this Agreement are for convenience of reference only and are not to be considered as parts, provisions or interpretations of this Agreement. The use of the term “including” or words of similar meaning in this Agreement will be deemed to include the phrase “without limitation” or similar words that show the intent of the parties to identify, by way of a non-exhaustive list, certain examples of the subject being addressed. This Agreement is not to be presumptively interpreted for or against any party by reason of that party having drafted or negotiated, or failed to draft or negotiate, all or any portion of any provision of this Agreement.

13.7. No Third-Party Beneficiaries. Other than as expressly set forth in this Agreement, no third-party beneficiaries are created by this Agreement and this Agreement will not be construed to provide any person or entity not a signatory hereto with any remedy, claim or other right.

13.8. Force Majeure. Neither party will be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event outside its reasonable control, including an act of God, insurrection, war, communications failure, Internet outage, natural disaster or act of a third party not under the control of the failing party.

13.9. No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed a waiver of such right or any other rights hereunder. No consent to a breach of any term of this Agreement will constitute a consent to any prior, subsequent or other breach.

13.10. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.

13.11. Governing Law/Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict-of-law rules. Any dispute in connection with this Agreement must be brought in the courts located in Austin, Texas, and the parties consent to personal jurisdiction and venue in such courts for purposes of any such dispute.

13.12. Entire Agreement. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof, supersedes all other negotiations, agreements, contracts, representations, proposals, commitments, and understandings, oral and written, with respect thereto, and do not operate as acceptance of, and will prevail over, any conflicting terms, conditions and provisions of any other instrument of a party.

13.13. Notices. All demands, consents and notices to be given hereunder shall be sent by email and by Certified Mail, Return Receipt Requested, or via reputable overnight delivery service with record of delivery, addressed to the respective parties at the addresses set forth on the applicable Insertion Order, or to such other addresses as each may hereafter designate. A courtesy copy of any notice must be sent to SOE’s General Counsel at SOE’s address listed on the first page of this Agreement.