First Choice Power affiliate program

First Choice Power is committed to delivering value to residential and small business customers through a range of electricity plans with competitive prices to meet the needs of customers' home or business. This program offers a 30-day cookie duration.

First Choice Power Affiliate Program Management Service Agreement

About the First Choice Power Team
First Choice Power, LP. (“First Choice Power”) is an energy company that is committed to delivering value to our residential and small business customers through excellent customer service, innovative plans and products, superior rewards, and competitive pricing. First Choice Power has ties to a 70-year heritage of serving Texans.

It takes a special electricity company to address the needs of Texans and Texas communities at the level they deserve. As a resident of Lone Star State, you have a competitive nature, look for long-term reliability in the products you buy, and good manners when interacting with others. Here at First Choice Power, we take all those things to heart and deliver them to you in all of our business practices. We offer our customers a range of electricity plans with competitive prices designed to meet the needs of your Texas home or business. Our company was founded in Texas, and we're here to stay, so you can always rely on us and the high quality customer service you’ll receive.

First Choice Power Offer:

Electricity for your home at low rates with a fantastic rewards program to incent customers to sign up.

Markets: All of First Choice Power’s authorized territories

Incentives:

Cookie duration is 30 days!

Full commission for accepted, active enrollment is $25.00

We DO allow the following marketing methods:

·Pay per click

·SEO

·Mobile Search

·Social

·Banners

·Web Content

·Mobile Banner

·Product Review

We DO NOT allow the follow methods without direct consent:

·Trademark bidding

·Downloadable software partners

·Incentivized partners

·Direct Linking

AFFILIATE PROGRAM TERMS AND CONDITIONS

The following Terms and Conditions, including all exhibits, schedules and/or attachments hereto, as may be hereafter amended, restated or otherwise changed from time to time (collectively, “Agreement”), shall govern your participation as an affiliate (“Affiliate”) in the First Choice Power Affiliate Program.  You have agreed to this Agreement as a condition to becoming an Affiliate and shall at all times fully comply with the terms and conditions of the Affiliate Program and this Agreement.  The terms “you,” “your,” and “Affiliate” shall refer to the individual or entity that wishes to participate as an Affiliate by accepting this Agreement, and the terms “we,” “us,” “our,” and “FCP” shall refer to First Choice Power.  The term “First Choice Power” as used herein may refer to any or all of First Choice Power LP, FCP Enterprise, Inc., as applicable. You and us may be individually referred to as a "Party" or collectively referred to as the "Parties."

1. Services; Term; Termination.

FCP is a retail electric provider authorized to provide electricity service (the “Services”) to end-user residential customers within certain areas where competition for such services is available. As an Affiliate, you may on a non-exclusive basis refer prospective customers (“Customers”) for Services to us subject to the terms and conditions contained in this Agreement, including, without limitation, those contained in Sections 14 and 15 hereof.  The term (“Term”) of this Agreement shall be for an indefinite period until terminated by either Party.  You or we may terminate this Agreement at any time for any reason or no reason, without penalty, by delivery of notice to the other Party as provided herein. 

2. The Responsibilities of Affiliate.

(a) You shall be permitted to promote the Services solely in accordance with this Agreement using the Approved Materials (defined below) available through the FCP Partner Portal available at www.engineorange.com/partnerportal or other URL as determined by us (“Partner Portal”).  All of your promotional activities must conform in all respects to any content and design specifications provided to you by us from time to time, including, but not limited to, the Marketing Guidelines set forth as Exhibit A to this Agreement and as available on the Partner Portal. All marketing materials and/or content used by you in connection with the promotion the Services ("Advertisements") consist solely of the Approved Materials unless you have obtained written approval from FCP prior to using, displaying or distributing any such Advertisements. You shall conform (if authorized) to the highest ethical standards for advertising and ensure that all Advertisements are factually correct and not misleading or deceptive in any way.  You shall further ensure that all promotional activities and/or campaigns strictly comply with the Marketing Guidelines and all applicable laws, including but not limited to the CAN-SPAM Act.

(b) You shall not make any representations or warranties related to the Services, whether directly or indirectly, other than those contained in the Approved Materials or approved in advance in writing by us.  We will not be bound by any unauthorized representations or warranties regarding the Services.  You shall promptly refer to us all customer inquiries that are received by you, if any, regarding the Services or FCP’s website or telephonic sales process.  During the Term, and for a period of two (2) years thereafter, you shall maintain complete and accurate records of your business conducted in connection with this Agreement, including but not limited to copies of all Advertisements, and the dates, methods and locations of any promotional activities. You agree to fully cooperate and exercise your best efforts to promptly comply with all requests by us for information or data relating to any Advertisements, promotional activities, or other obligations relating to this Agreement.

3. Grant of License.

(a)  Subject to the terms and conditions of this Agreement, FCP shall grant to you a limited, nonexclusive, non-transferable, non-sublicenseable, revocable license to display FCP, those trademarks, service marks, and logos associated with the Services which are contained within the Approved Material (the “FCP Marks”) for the limited purposes of and solely in connection with the lawful promotion of the Services to eligible Customers during the Term; provided, that you may only use and display those FCP Marks as contained in the Approved Materials and only in the specific manners set forth in the Marketing Guidelines or the Partner Portal. You acknowledge that the Approved Materials and FCP Marks are the sole property of FCP and that nothing contained in the Agreement shall be grant or be construed to grant you any right, title or interest in or to the Approved Materials or FCP Marks. You acknowledge that we have exclusive ownership of the Approved Materials and FCP Marks and agree not to take any action inconsistent with such ownership. You will not in any way acquire any right, title or interest in or to any Approved Materials or FCP Marks by virtue of your display of such Marks in connection with this Agreement, and all goodwill associated therewith will inure solely to our benefit.  You will cease using the Approved Materials and FCP Marks immediately upon termination of this Agreement, or immediately upon notice from us to you at any time during or after the Term.

(b) All tangible information relating to the Services, including but not limited to any drawings, designs, Approved Materials, FCP Marks, Advertisements, advertisings, performance results, analyze, and/or specifications, whether provided to you or by you, shall at all times be, and shall be deemed to be, our property, and we shall acquire and retain all right, title and interest in and to any and all intellectual property rights associated therewith.  All information regarding Customers as same pertains to the Services or activities conducted in connection with this Agreement shall at all times be, and shall be deemed to be, FCP’s sole and exclusive property.

4. Commissions.

We agree to pay to an Advertiser per our Master Advertiser Agreement a commission (“Commission”) for each valid customer Enrollment referred by you and completed directly through a link from your website(s) (“Affiliate Sites”) that you registered on the Partner Portal, in compliance with the terms and conditions of this Agreement.  The Commission amount applicable to our various service offerings shall be published in this Agreement and may change from time to time without prior notice.  The Commission amount may vary by service offering, and Commissions may not be available for some of our service offerings.  For purposes hereof, an “Enrollment” shall mean that FCP has accepted a prospective Customer for Services, without any conditions or contingencies, are activated and the Customer’s first three bills for Services shall have paid in full.  Valid Enrollments shall be determined by us in our sole discretion in accordance with our Enrollment tracking procedures implemented for this purpose. Commissions may not be payable or partial payments may be made in conjunction with certain special offers or programs. All disputes, if any, regarding the Enrollments shall be resolved solely by us in our reasonable discretion.  You must submit any disputes regarding Enrollment payments in writing to us through the Partner Portal along with a detailed description of the basis for any such dispute no later than thirty (30) days after receipt of such Commission or the date upon which you allege a commission was due.  Failure to timely submit a dispute constitutes a waiver of the dispute.

(b)  Commissions shall be paid within 20 days following the end of the month in which Enrollment occurred; provided that no payment will be made if the total amount of your Commissions is less than $100.00.  Amounts less than $100.00 will be carried forward and counted toward your Commission amount for the following month.  Commissions paid to you for any Enrollments which subsequently fail to qualify as a valid Enrollment for whatever reason, are subject to offset against Commissions thereafter payable by us to you.  We reserve the right at any time to terminate any affiliate accounts that we deem to be inactive.

5. Confidential Information.

You hereby covenant and agree that all Confidential Information (defined below) that is disclosed or communicated to, or learned by you in connection with this Agreement is subject to strict confidentiality, shall be used by you solely for the purposes of performing your obligations under this Agreement, and shall not be disclosed, divulged, disseminated or otherwise made available to any third party without our prior written consent, except as specifically permitted under this Agreement.  “Confidential Information” means all non-public information relating to us and/or Customers, in any form or format, including, without limitation, technology, intellectual property, all Customer data and information relating to us, our Services and/or in connection with this Agreement (irrespective of whether disclosed by us, Customers or otherwise obtained), lists of Customers, performance information, sales information, financial information, marketing information, ideas, technical data, marketing concepts originated in connection with the Services, and/or any other information concerning the our business or prospective businesses.  For purposes hereof, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party, (ii) is approved for release by a written authorization by the Disclosing Party, or (iii) is required to be disclosed by operation of law, subject to prior written notice and opportunity of the Disclosing Party to challenge such legal requirement that the Confidential Information be disclosed. The provisions of this Section shall survive the termination of this Agreement. In addition, you agree to comply with Consumer Protection Rules, Privacy of Customer Information, with respect to any information given to or learned by you in connection with the Services or this Agreement. Notwithstanding anything to the contrary contained herein, the foregoing obligation shall continue after the termination or expiration of this Agreement.

6. Representations and Warranties.

You represent and warrant to us that: (a) you have all right, title and power necessary to enter into and perform your obligations under the Agreement; and (b) you are and shall remain in compliance with all federal, state and local laws applicable to the conduct of your business and performance of your obligations under this Agreement, including, but not limited to, CAN-SPAM Act; and (c) any and all promotional activities relating to this Agreement will not contain any material that (i) is misleading or deceptive, or (ii) is libelous, defamatory, obscene, pornographic, intended to harass or annoy, or link to any site containing material of the type described in this sentence; and (d) you have all approvals, consents, licenses, permits or other authority necessary or required to conduct any and all activities that you will perform or conduct in connection with this Agreement, including, without limitation, from any and all federal, state, and/or local governments, authorities, regulatory agencies, or other authorizing bodies.

7. Indemnification.

You agree to indemnify, defend, and hold First Choice Power and its officers, directors, and employees harmless from and against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies (including reasonable attorneys' fees and costs) arising from or in connection with: (a) your negligence or willful misconduct, or (b) a breach or violation by you of any warranty, representation, obligation, or covenant contained in this Agreement.  The indemnification obligations set forth in this Agreement shall survive the termination or expiration of this Agreement.

8. Disclaimer of Warranties.

First Choice Power makes no express or implied warranties with regard to the Services, SERVICE OFFERINGS or otherwise, including, without limitation, warranties of merchantability, fitness for a particular purpose OR INTENDED USE, or any implied warranties arising out of a course of performance, dealing or trade usage.  NO REPRESENTATION OR AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS REGARDING SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY OR OUR EMPLOYEES OR AGENTS OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY US FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY ON THE PART OF FCP  WE MAKE NO REPRESENTATION OR WARRANTY THAT YOU WILL RECEIVE ANY COMMISSIONS.  WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT OUR WEBSITE OR THE PARTNER PORTAL WILL OPERATE CONTINUOUSLY, UNINTERRUPTED, OR WITHOUT ERROR, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.  WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES AND OUR SERVICE OFFERINGS.

9. Limitation of Liability.

IN NO EVENT SHALL FIRST CHOICE POWER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE OR DATA, ARISING OUT OF OR IN CONNECTION WITH EITHER PARTY’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR FOR ANY OTHER REASON, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Modification.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT MAY BE MODIFIED BY US BY POSTING A NOTICE OF SUCH MODIFICATION ON THE PARTNER PORTAL. YOUR SUBSEQUENT ACCESS TO THE PARTNER PORTAL OR CONTINUED CONDUCTING OF PROMOTIONAL ACTIVITIES REGARDING THE SERVICES SHALL BE A NON-REFUTABLE ACCEPTANCE OF SUCH MODIFICATION. NO OTHER AMENDMENT OR MODIFICATION OF THIS AGREEMENT SHALL BE BINDING UNLESS IT IS SET FORTH IN A WRITING SIGNED BY BOTH PARTIES.

11.  Remedies. 

You acknowledge and agree that the non-permitted use or disclosure of Confidential Information will cause us irrevocable damage for which adequate remedy at law will not be available and, accordingly, we shall be entitled to obtain immediate temporary and/or permanent injunctive relief to prevent such continued non-permitted use or disclosure.  Such rights shall not limit in any manner our rights to seek and obtain other and/or additional remedies, at law or in equity.  We may take any equitable or legal action in connection with this Agreement without any requirement to post a bond in order to enforce the provisions of this Agreement.

12.  Notices.   

Except as specifically otherwise stated herein, all notices, communications, or requests, required or permitted to be given by you to us hereunder must be given in writing, and shall be delivered by hand delivery, nationally recognized overnight courier service, or by certified or registered mail, postage prepaid, return receipt requested, in each case addressed to: First Choice Power, LP, Attention: Legal Department, 12 Greenway Plaza Suite 250, Houston, TX 77046  All notices, communications, or requests, required or permitted to be given by us to you hereunder must be given in writing, and shall be delivered by hand delivery, nationally recognized overnight courier service, electronic mail (email), or by certified or registered mail, postage prepaid, return receipt requested, in each case addressed to you using your most current contact information contained in your account records within the Partner Portal.  Notice shall be deemed effectively given on the date of delivery by the carrier thereof to the address of the Party to be notified, or the date of sending in the case of electronic mail.

13.  Miscellaneous.  

The Parties are each performing services hereunder as an independent party.  Nothing contained in this Agreement shall be deemed or interpreted to constitute the relationship between the Parties as a legal partnership, agency, joint venture, or any other relationship in which either party is responsible for or shall incur liability to outside parties as a result of the actions or omissions of the other Party.  You expressly covenant and agree that you will not in any manner or under any circumstance, without our prior written consent, subcontract or assign any third party to perform or provide any services in connection with this Agreement, or otherwise permit or tolerate such same, and that you shall be responsible and liable for any and all acts and/or omissions of such third parties or agents. You may not assign this Agreement or any rights or obligations hereunder without our express prior written consent.  This Agreement contains the entire agreement between the Parties and supersedes all agreements, representations, warranties and understandings, whether written or verbal, with respect to the subject matter hereof. Each Party shall pay its own legal, accounting, out-of-pocket and other expenses incident to the performance of its obligations under this Agreement.  This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without reference or giving effect to any conflicts of law principles of any state or other jurisdiction.  The Parties consent to venue and personal jurisdiction in the state and federal courts located in Harris County, Texas with respect to any dispute arising out of or relating to this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of the Agreement (whether or not similar), nor shall any such waiver constitute a continuing waiver unless expressly provided otherwise. This Agreement shall not be for the benefit of, or enforceable by, any person or entity not a party hereto and shall not confer any rights or remedies upon any party other than the Parties and their respective successors and permitted assigns.  You shall not issue a press release or make a public announcement concerning FCP or this Agreement, or any related transactions between the Parties, without first obtaining our prior written consent. 

14.  Territories.

Affiliate agrees that it will not market, advertise, broker, sell or arrange for the sale of First Choice Power services to customers in any state, or in any transmission or distribution utility territories within any state, without our express prior written consent.  Affiliate further agrees that it will promptly cease upon notice from First Choice Power any marketing, advertising, brokering, and/or sales related activities for First Choice Power in any state, or in any transmission or distribution utility territories within any state.

EXHIBIT A

Marketing Guidelines

1. Advertisements.

The term “Advertisements” as defined in this Agreement specifically includes without limitation: internet banner ads, pop-up ads, emails and other internet content and advertising, among other forms, formats and venues for advertising, as well as all portions of the Affiliate Site(s), web pages.  The term “Advertisements” shall further refer to any and all activities relating to the publishing, use, or display of Advertisements and/or similar activities designed or intended to promote the Services, irrespective of the media.  

2. Approval of Advertisements.  

Only Advertisements expressly approved by us in writing prior to use may be used to promote the Services. You may only use Approved Materials that are available through the Partner Portal in connection with your activities under this Agreement.  All Advertisements are subject to our approval. We shall use commercially reasonable efforts to approve or disapprove such Advertisements in a timely manner; provided, however, that failure to approve or disapprove any Advertisement shall not be deemed approval by us. Approved Advertisements are deemed in final form and must be specifically associated with a particular promotional or marketing campaign.  Any approved Advertisements that are subsequently modified, amended, altered or changed in any manner by you are no longer deemed approved and must be submitted for approval in their final modified form.  Similarly, each marketing campaign, promotion or context is subject to the approval process, irrespective of whether a prior campaign or promotion used the same or similar materials in an Advertisement.  Upon a sale, transfer, removal, change of URL or cessation of use of any approved Affiliate Site or webpage, any such website will no longer be deemed approved for purposes of advertising the Services.  Any request from you to us for any approval or consent required or contemplated hereunder may be denied, withheld or withdrawn by us at our sole and absolute discretion for any reason or for no reason. 

3.  Restricted Activities.  

Without limiting the generality of any of the restrictions, limitations or prohibitions contained in this Agreement, you expressly acknowledge and agree that you shall not, without our prior written consent, conduct, perform, engage in, participate in or acquiesce to any of the following:

(i)  Purchasing or bidding on keywords or terms and their variations on any online search engine in order to trigger sponsored links for the Services, including, without limitation, bidding on or purchasing keywords that are substantially similar to the FCP Marks or the trade names, trademarks, or service marks of competitive products and/or services. Examples of such keywords and terms include, without limitation: “First Choice Power”, “firstchoicepower.com”, “FCP electricity”, “FCP electric”, “FCP Houston”, etc.;

(ii)  Request, take, accept, transcribe, relay or transfer, or purport to take, accept, transcribe, relay or transfer, whether in connection with the Services or in conjunction with your activities relating to this Agreement: (a) any personal identifiable or sensitive information from actual or prospective Customers; or (b) orders for the Services or other products or services offered by us; or (c) any payments or deposits for or in connection with the Services; 

(iii)  Directly or indirectly charge or collect any fee or sum to Customers in any way connected with the Services or your services associated therewith, or waive, offset or purport to waive or offset any such fee or sum to Customers, or otherwise attempt to any of the foregoing or similar activities;

 (iv)  The breach, violation or non-compliance with any federal, state, or local law, rule or regulation (including without limitation any privacy or “spam” laws);

(v)  Any conduct that disparages or otherwise reflects adversely on us or the Services, FCP’s image or any of its products or services, including, without limitation, any use that may be deemed to be or associated with obscenity, pornography, or violence;

(vi)  Any actions or communications which expressly state, imply or suggest that we endorse or sponsor you, your business or your products or services;

(vii)  Linking from any FCP Mark or other link that a Customer might believe is associated with us or the Services, to a third party website or to any web page that is not our approved landing page;

(viii)  Use in commerce, in connection with any goods or services, any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of you with us or as to the origin, sponsorship, or approval of our goods or services;

(ix)  Marketing, advertising or displaying any Advertisements in any language other than English or Spanish;

(x)  Registering or attempting to acquire trademarks or service marks, domain names, or trade names related to FCP Marks, or those of any of its competitors;

(xi)  Use any adware, contextual or behavioral network services, whether through a third party or your internal operations. These services may be defined as pop-up ads, banner ads, page views or other forms of media based on user behavior, including search queries or visits to specific URLs, which are served based on software downloaded by the user. Adware service networks forbidden include, but are not limited to, Claria, WhenU, HotBar, Exact Advertising, 180 Solutions, MarketMaker, Best Offers, Zone Media, Tremor Network and Contextweb;

 (xii)  Placement of banner ads or links anywhere other than the Affiliate Sites, including without limitation, in newsgroups, chat rooms, ICQ, message boards, banner networks, hit farms, counters, or guest books;

(xiii)  Placement of any banner ads, links or materials in a "Desktop" advertising scheme, which includes without limitation, any third party advertising platforms that use a desktop application to display ads in any form;

(xiv)  Placement of display of any FCP Marks or promotional materials for the Services in any window that is not the result of a direct click by the end-user.