Independent Publisher Agreement.
THIS INDEPENDENT PUBLISHER AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO, AS OF THE DATE OF YOUR ACCEPTANCE, BY AND BETWEEN ENERGYGEEKS CORPORATION dba ENERGYPAL (“ENERGYPAL”) AND YOU (THE “PUBLISHER”). BY AGREEING TO THE TERMS SET FORTH HEREIN YOU ATTEST THAT YOU HAVE THE AUTHORITY TO MAKE THIS AGREEMENT ON BEHALF OF PUBLISHER. ACCORDINGLY, ENERGYPAL AND PUBLISHER JOINTLY AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
1. Lead Generation.
- Provisioning of Leads. Pursuant to the terms of this Agreement, Publisher agrees to sell Leads and Lead Data to ENERGYPAL that have been generated through Publisher Materials only (the "Lead Services").
- Lead Exclusivity. Publisher may provide the same or similar services as the Lead Services to third parties. Notwithstanding the foregoing, unless otherwise set forth in a specific Publisher campaign Insertion Order and in ENERGYPAL systems, (i) all Contract Leads shall be exclusive to ENERGYPAL and neither Publisher nor its agents shall provide any Contract Leads to any other third party; and (ii) neither Publisher nor any Subcontractor shall contact any Contract Lead for any offer or service inquiry for at least one hundred and eighty (180) days from the date such Contract Lead is submitted to ENERGYPAL.
- Lead Quality Control. ENERGYPAL shall retain the right to revise, alter or correct any of the information contained in any Contract Lead for quality control and sales purposes. ENERGYPAL shall retain the right to conduct quality control on any Contract Lead, reject any Contract Lead for quality control purposes, or suspend the sale of Contract Leads for quality control purposes at any time.
2. Payable Amount; Payment.
- Payable Amount. For each Contract Lead submitted to ENERGYPAL by Publisher pursuant to this Agreement, which further signs a customer agreement to purchase products or services offered by ENERGYPAL, Publisher shall earn a fee, upon the Contract Lead reaching specific predefined milestones, to be payable by ENERGYPAL. The milestones and amount per Contract Lead shall be set in the Publisher Account, and may be updated from time to time by mutual written agreement. The “Payable Amount” is calculated as (i) the total Contract Leads achieving the predefined milestones net of Disqualified, cancellations and terminations of customer agreements, multiplied by (ii) the amount per Contract Lead.
- Notwithstanding the foregoing, unless otherwise set forth in a specific Publisher campaign Insertion Order and in ENERGYPAL systems, ENERGYPAL shall pay only for non-duplicative Leads generated and submitted to ENERGYPAL by the Publisher pursuant to this Agreement. Furthermore, ENERGYPAL shall not pay for any Lead that constitutes a Disqualified Lead during the qualification and sales process or any Leads generated not in compliance with applicable Law. In the event of a dispute with respect to the number, pricing and quality of Leads received by ENERGYPAL, ENERGYPAL’s tracking and computer systems shall control.
- Payment. ENERGYPAL shall initiate payment of the applicable monthly Lead Payable Amount to Publisher net thirty (30) days from the end of each month during the term of this Agreement unless another payment date is agreed to in writing and updated in the Publisher Account settings.
3. Lead Submission
Publisher shall submit all Contract Leads to ENERGYPAL via web hook, data post and tracking links to ENERGYPAL forms approved and tested in advance by ENERGYPAL and in accordance with this Agreement.
4. Publisher Obligations.
- General Compliance. Publisher and its Subcontractors (including any affiliate networks, if applicable) shall comply with all applicable U.S. laws in connection with the Lead Services and all Publisher’s lead generation activities and obligations under this Agreement, including without limitation, applicable privacy and data security laws (including, without limitation, the right to share Lead contact information with third-parties), laws governing registration of fictitious names, provincial, state, and federal marketing and advertising laws, the Consumer Protection Act, CAN-SPAM Act and any applicable provincial and state spam laws, CALSSA Consumer Protection Rules, the U.S. Federal Trade Commission’s Amended Telemarketing Sales Rule ("TSR"), and the Telephone Consumer Protection Act of 1991 ("TCPA"), and California Consumer Privacy Act at all times (collectively, the "Consumer Protection Laws"). Furthermore, Publisher and its Subcontractors shall comply with ENERGYPAL's Marketing and Advertising Compliance Policy, as set forth in Publisher Account, in connection with fulfilling Publisher’s obligations under this Agreement.
- Publisher Materials. Publisher agrees (i) that Publisher shall be solely liable and responsible for all Publisher Materials used in connection with this Agreement and the Lead Services, (ii) that all Publisher Materials shall comply with applicable law at all times, including without limitation, Consumer Protection Laws, and (iii) that Publisher shall not make any material misstatements or omissions in any Publisher Materials as it relates to the applicable offering. Publisher shall be solely responsible for ensuring that all objective claims (express or implied) contained in any Publisher Materials are (i) true and (ii) substantiated through internal and/or external data sources and evidence prior to dissemination. Upon two (2) days written request by ENERGYPAL, Publisher shall provide ENERGYPAL with copies of all Publisher Materials used to generate Contract Leads under this Agreement, including, without limitation, any marketing materials used by any Subcontractors (as defined below), if applicable.
- Opt In/Consent Record Keeping. Unless otherwise set forth in a Publisher Agreement, Publisher shall use an approved LeadiD tracking code application (i.e., Journaya, TrustedForm) for TCPA compliance purposes on all of its landing pages or websites where Leads are generated and any conversion pages where Leads are generated. Publisher must submit each Lead to ENERGYPAL with a unique and valid LeadiD tracking code. Any Leads that do not contain a LeadiD tracking code will be rejected and Publisher will not receive any money for such Leads. For compliance purposes only, Publisher grants to ENERGYPAL a fully-paid and non-revocable licenses to store and use any creatives, graphics or other Publisher Materials captured as a result of LeadiD (or other third party services in connection with this Agreement. Notwithstanding the foregoing, Publisher shall provide evidence of consumer opt in or consent to be contacted pursuant to this Agreement for any Contract Lead, in a form satisfactory to ENERGYPAL, to ENERGYPAL upon three (3) days written notice to Publisher. Such evidence shall include, but not be limited to, web addresses and websites where the Contract Lead’s consent was obtained, date and time stamps on such websites, IP addresses of any Contract Leads, copies of any opt in statements seen by Contract Leads, or voice recordings of Contract Lead consent. Publisher shall retain such evidence for at least five (5) years from the date the Contract Lead opted in. To the extent that ENERGYPAL permits use of another third party TCPA compliance service in lieu of LeadiD, the provisions of this section shall continue to apply.
- Prohibited Activity. The Publisher Materials shall not contain any (i) pornographic or offensive material, (ii) software trading, hacking or phreaking content, (iii) illegal music reproduction, downloads or content, (iv) content that infringes on any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party, (v) any content that is not properly substantiated pursuant to applicable provincial, state and federal marketing and advertising laws or (vi) any other illegal content. Publisher shall not distribute any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware through any Publisher Materials. Publisher shall not (i) engage in the practice of search engine “spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking); or (ii) provide visitors with any incentive or compensation on the Publisher Materials with respect to the submission of any Lead.
- Copying. Publisher shall not copy, mimick, recreate or distribute any advertisements (including, without limitation, text ads, image ads, email creatives, websites, online landing pages) created, promoted, or owned by ENERGYPAL without the prior written consent of ENERGYPAL.
- Call Center. Publisher shall not (i) use a call center or engage in any inbound or outbound telemarketing in connection with the Lead Services or the generation or qualification of the Leads or (ii) submit any Contract Lead to ENERGYPAL that has been generated or qualified via outbound or inbound telemarketing or call service. For the avoidance of doubt, neither Publisher nor any Subcontractor shall initiate any outbound telephone calls or send any texts, faxes, pre-recorded messages, or automated messages to any individual under this Agreement.
- Diligence. Publisher agrees to provide ENERGYPAL with any materials related to Publisher’s or any Subcontractor’s compliance with applicable Law in connection with their performance under this Agreement, as reasonably requested by ENERGYPAL from time to time.
- Insurance. Publisher shall maintain during the term and for a period of four years following the end of the term of this agreement an advertising errors and omissions insurance policy in an amount of not less than $1,000,000 dollars per occurrence and $2,000,000 annual aggregate. This insurance shall provide coverage for any actual or alleged negligent act, error or omission, or negligent misstatement or misleading statement by the Publisher in the performance or failure to perform lead generation services and specifically endorsed to insure the contractual liability assumed in this contract. This insurance shall apply to all claims, whether instituted by regulatory agencies or private parties.
5. Confidentiality and Nondisclosure.
- Confidential Information. Publisher recognizes that its directors, officers, employees and authorized representatives such as attorneys and accountants, may obtain knowledge of Confidential Information regardless of whether such information is labeled confidential. Accordingly, Publisher agrees to hold such Confidential Information (including, but not limited to, this Agreement and its contents) in confidence, not to disclose any such information to any third party, and to use its reasonable best efforts to ensure that such information is held in confidence by its officers, directors, employees, representatives and others over whom it exercises control and shall not use such information except for the performance of its obligations under this Agreement. Publisher shall promptly notify ENERGYPAL of any use or disclosure of such Confidential Information in violation of this Agreement of which Publisher becomes aware.
- Exceptions. The restrictions set forth in this section shall not apply to Confidential Information that (i) was generally known or otherwise generally available to the public prior to disclosure hereunder, or becomes generally known to the public subsequent to such disclosure through no wrongful act or omission of the receiving party, (ii) was known to the receiving party at time of disclosure, (iii) was received by the receiving party, without restriction, from a third party not under an obligation to the disclosing party not to disclose it and otherwise not in violation of the disclosing party’s rights, (iv) is disclosed pursuant to the order or requirement of a court, arbitrator, administrative agency or governmental body, or (v) has been specifically identified and approved in writing in advance for release by ENERGYPAL.
6. Representations and Indemnification.
- Mutual Representations. Each party represents and warrants to the other party that (1) it has full power, right and authority to grant and carry out its respective licenses, rights and obligations under this Agreement; (2) the grant and performance of such licenses, rights and obligations hereunder (i) will not conflict with any charter documents or any agreements, contracts or other arrangements to which it is a party, or (ii) will not, to its’ knowledge, be prohibited or restricted by any government agency; (3) a party in the performance of its obligations hereunder, it shall not knowingly violate the intellectual property or personal rights of any third party; and (4) there is no pending, or to its’ knowledge, threatened litigation involving such party which would have any effect on this Agreement or on its’ ability to perform its obligations hereunder.
- Publisher Representations. Publisher hereby represents and warrants that it, or any of its Subcontractors or sales representatives, has not been the subject of a complaint, inquiry, or investigation, whether brought by a federal, provincial,or state regulator, self-regulatory organization such as the Better Business Bureaus), private plaintiff, or other third party, arising out of or related to Publisher’s, or any of its Subcontractors or sales representatives’, compliance with the Consumer Protection Laws within the past three (3) years. In the event Publisher or any of its Subcontractors or sales representatives are currently or become the subject of such complaint, inquiry, or investigation, Publisher shall provide ENERGYPAL with copies of all material documentation related to such complaint, inquiry, or investigation, including documentation sufficient to show and which fully demonstrates the steps taken to resolve the complaint, inquiry, or investigation and to prevent similar complaints, inquiries, or investigations from recurring. This shall be in addition to any other remedy which ENERGYPAL may have at law or equity. Publisher further represents and warrants that Publisher and any Subcontractors used in connection with this Agreement shall accept service of process within Canada.
- Disclaimer of Warranties Regarding ENERGYPAL's Services. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ENERGYPAL DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. ENERGYPAL DISCLAIMS THAT IT CAN SELL THE CONTRACT LEADS FOR ANY PARTICULAR PRICE. THE FOREGOING DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT.
- Publisher and its related and affiliated companies will hold harmless, indemnify and defend ENERGYPAL, its affiliates, and its other contractors and agents, as well as their directors, officers, agents, stockholders, affiliates, and employees of each, against all claims, demands, actions, investigations (including, without limitation, any government entity or governmental inquiry or action), suits, damages, liabilities, losses, settlements, and judgments, and will pay all damages and costs (including but not limited to reasonable attorneys’ fees and costs) arising directly or indirectly out of or resulting from: (i) any negligent, reckless, or intentionally wrongful acts or omissions on the part of Publisher or its Subcontractors; (ii) any alleged or actual breaches of this Agreement by Publisher or any of its Subcontractors; (iii) any failure of Publisher or its Subcontractors to perform their obligations, or their failure to perform its obligations under this Agreement in accordance with all applicable Laws, rules and regulations, including but not limited to applicable Consumer Protection Laws; and (iv) any activities performed by Publisher or its Subcontractors in connection with this Agreement, in each case whether or not caused by the negligence of ENERGYPAL or any other Indemnified Party and whether or not the relevant claim has merit. This indemnification obligation shall apply regardless of the amount of insurance coverage held by ENERGYPAL. ENERGYPAL shall be entitled to offset any amounts owed pursuant to this Section from unpaid or future fees payable or owed to Publisher.
- ENERGYPAL hereby agrees to defend and indemnify Publisher against, and hold Publisher harmless from any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including court costs and reasonable fees of attorneys and other professionals claimed by third parties which arise out of or relate to any failure of ENERGYPAL to perform a material obligation under this Agreement.
- If Publisher determines that it is entitled to indemnification under this Section 6, Publisher shall promptly notify ENERGYPAL in writing of the loss, and provide all reasonably necessary or useful information, assistance and authority to settle and/or defend any loss. In the event of a loss claimed by a third party, the selection of counsel, the conduct of the defense of any lawsuit, arbitration, or other proceeding, and any settlement shall solely be within ENERGYPAL’s control, provided that Publisher shall have the right to participate in the defense of such loss using counsel of its choice, at its expense. If ENERGYPAL determines that it is entitled to indemnification under this Section 6, ENERGYPAL shall promptly notify the Publisher in writing of the loss or claim. In the event of a loss or claim by a third party, the selection of counsel, the conduct of the defense of any lawsuit, arbitration, or other proceeding, and any settlement shall solely be within the ENERGYPAL’s control, provided that Publisher shall have the right to participate in the defense of such claim or loss using counsel of its choice, at its expense. Prior to the finalization of any settlement or claim, ENERGYPAL shall use reasonable efforts to confer with Publisher regarding such settlement.
7. Intellectual Property.
- Trademark Permissions. Publisher grants to ENERGYPAL (and any ENERGYPAL affiliates or agents) a limited, fully-paid, non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement to use Publisher’s trademarks and trade names solely in connection with the purposes contemplated by this Agreement and contacting the Contract Leads for further qualification and/confirmation of Lead Data.
- Distribution Rights. With respect to the applicable Lead Type, Publisher grants ENERGYPAL an exclusive and non-revocable right within the Canada, United States, and other service areas to offer and sell product and services, distribute, sell, monetize or otherwise dispose of (by any means known or hereafter developed), sublicense, market and promote, and grant third parties such rights regarding the Contract Leads submitted to ENERGYPAL by Publisher pursuant to this Agreement. ENERGYPAL, however, shall retain sole discretion regarding the methods and manner in which ENERGYPAL offer and sell product and services, distributes, sells, monetizes or otherwise disposes of, any and all Leads (including, without limitation, the Contract Leads) to any current or potential customer/client of ENERGYPAL.
- Contract Lead Ownership. Pursuant to this Agreement, all Contract Leads provided under this Agreement shall be deemed to be co-owned potential customers of ENERGYPAL and Publisher. Except as set forth herein, each party shall have the right to collect and use such customer information and interact with such customers separately and individually, each (a) in its normal course of business and (b) in accordance with (i) the terms of this Agreement, (ii) the applicable privacy policies of the parties, and (iii) any other applicable laws and regulations. Other than as set forth in this Agreement, the parties shall not be responsible for any fees, payments, royalties or share of proceeds to the other party as a result of such co-ownership or separate use of any Contract Leads provided under this Agreement.
8. Termination of the Agreement.
This Agreement shall commence when signed by the last of both parties and will terminate as provided herein. ENERGYPAL may terminate this Agreement at any time and for any reason upon fifteen (15) business day’s written notice to the other party. Publisher may terminate this Agreement at any time and for any reason upon ninety (90) business day’s written notice to the other party. This Agreement shall terminate automatically upon six (6) months following the date of last delivery of Leads to ENERGYPAL. Except as set forth herein, any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening, including without limitation, Sections 4, 5, 6, 7(c) and 10.
For purposes of this Agreement, the following terms shall be defined as follows:
- "Agreement" shall collectively mean this Publisher Agreement, entered into by ENERGYPAL and Publisher, which may be amended from time to time and agreed upon in writing.
- "Commercial Lead Use" shall mean (i) calling, texting, faxing or sending pre-recorded messages using manual, computer-assisted or computer automated telephone technology, (ii) emailing or (iii) sending direct mail, for purposes of offering and selling ENERGYPAL or ENERGYPAL’s client’s products and services, as applicable, to any Contract Lead.
- "Confidential Information" shall mean form posts and associated HTML, trade secrets, form functionalities, web technologies, data validation techniques, computer information systems, customer lists and names, vendor lists and names, product information,pricing information, geographic data, any data sourced from the qualification of the Contract Leads, any data sourced from the offering and sales of products to the Contract Leads, and other confidential information of ENERGYPAL which is valuable, proprietary, special or unique to the continued business of ENERGYPAL.
- "Contract Lead" shall be a Lead that has been generated by Publisher and actually submitted to ENERGYPAL pursuant to this Agreement.
- "Disqualified" are the types of Contract Leads that fall outside the parameters set forth in a Publisher Agreement and ENERGYPAL systems in which ENERGYPAL shall not be required to pay under this Agreement.
- "Lead" shall mean a request from an individual for information about home energy or improvement related products and services, which shall include Lead Data.
- "Lead Data" shall mean the contact information and other data collected from an individual in connection with the generation of a Lead, which shall include name, address, phone number and email, and other project criteria specified by the form post instructions provided by ENERGYPAL or marked as required on the ENERGYPAL provided web form.
- "Publisher Account" shall mean the information contained within ENERGYPAL systems with regards to Publisher company name, contacts, billing information, Contact Lead payout amounts and qualification criteria, and associated Contract Leads reports, which will be maintained by ENERGYPAL.
- "Publisher Materials" shall mean any websites and published creatives, including but not limited to, marketing/advertising campaign materials, email creatives, banner and display advertisements, text and contextual advertisements, social media accounts and posts, web widgets and sites, online landing pages, collateral, or mailers which are (i) owned and operated by Publisher or any Subcontractors and (ii) used to generate Leads or Lead Data under this Agreement.
- "Restrictions" are prohibited forms of advertising or Internet traffic for the generation of Contract Leads.
10. Miscellaneous Terms.
- Independent Contractor . The relationship between ENERGYPAL and Publisher established by this Agreement is that of independent contractor and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. For the avoidance of doubt, Publisher shall not be deemed to be advertising on behalf of ENERGYPAL in connection with the generation of any Leads. Publisher is an independent contractor providing Leads to ENERGYPAL in compliance with applicable U.S. law and no other relationship is intended. Publisher shall not (i) use any ENERGYPAL trade name or brand (including, without limitation, “EnergyPal” and “EnergyGeeks””) without prior express written consent of ENERGYPAL or (ii) represent in any way that their company or brand is associated with or sponsored in any way by ENERGYPAL.
- Affiliates & Subcontractors. As between ENERGYPAL and Publisher, Publisher shall remain solely liable for all actions and omissions resulting from Publisher’s agents, affiliates, third party marketing partners/vendors, affiliate networks, and or third party/affiliate call centers (collectively, "Subcontractors") used under this Agreement. All Subcontractors must be provided a copy of the Publisher Agreement and the T&Cs, and shall be bound by the terms of the Publisher Agreement and T&Cs.
- Licenses. Nothing in this Agreement is intended to grant any rights to Publisher under any patent, mask work right, copyright, trade secret or other intellectual property right of ENERGYPAL, nor shall this Agreement grant Publisher any rights in or to the Confidential Information of ENERGYPAL except as expressly set forth herein.
- Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. All notices shall be sent to the parties at the following addresses: (i) to Publisher at the address provided during registration; and (ii) to ENERGYPAL, Attn: Legal, EnergyPal, 8005 Financial Dr, Suite 323, Brampton, On, Canada L6Y6A1.
- Governing Law. This Agreement, all claims or causes of action (whether in contract or tort) that may be based upon or arise out of or relate to this Agreement or relate to the negotiation, execution or performance of the Agreement (including an representation or warranty made in connection with this Agreement), and any services provided hereunder shall be governed by, construed and interpreted in accordance with the laws of Ontario, Canada, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Ontario, Canada. This Agreement shall be deemed to have been entered into and performed in Canada.
- Dispute Resolution; Arbitration.
- Mandatory Arbitration. In the event of any dispute whatsoever between the parties, including but not limited to any disputes concerning interpretation, enforcement or application of this Agreement or any Publisher Agreement, including fraud in the inducement, such disputes shall be exclusively resolved by final and binding arbitration before one arbitrator, who shall be a retired judge, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitration shall be held in San Francisco. The parties jointly request that the appointed arbitrator administer the arbitration efficiently and, if possible, issue a decision within six (6) months from the date the arbitrator is appointed. The arbitrator’s award shall be final and binding, and shall set forth both the legal and factual basis of the award.
- Attorneys Fees. The prevailing party in any arbitration or other legal proceeding seeking injunctive or legal relief, shall receive an award for its attorney’s fees, expert fees, costs, and expenses.
- Equitable Claims. Notwithstanding the arbitration provision, the Parties hereto reserve the right to obtain injunctive or other equitable relief in a court of law. The Parties hereto consent that proper venue to obtain injunctive or other equitable relief shall be provincialor federal court in Ontario, Canada.
- Choice of Law Under Arbitration. All claims and causes of action (whether in contract or tort) shall be governed by, construed and interpreted in accordance with the laws of the Ontario, Canada, without regard to principles of conflict of laws.
- No Third Party Beneficiaries. Only the parties hereto are entitled to enforce the provisions of this Agreement and no third party beneficiary is intended under this Agreement.
- Limitation of Liability. EXCEPT IN CONNECTION WITH AN OBLIGATION OF INDEMNIFICATION (SECTION 6) OR A BREACH OF CONFIDENTIALITY (SECTION 5) AND TO THE FULLEST EXTENT PERMITTED BY LAW, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE AND EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE DAMAGES WERE FORESEEABLE; AND (B) EACH PARTIES’ CUMULATIVE LIABILITY FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY TO THE OTHER PARTY WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY.
- Construction. ENERGYPAL and Publisher acknowledge and agree that this Agreement is the product of arms-length negotiations between ENERGYPAL and Publisher, both of whom are sophisticated commercial parties of equal bargaining power, and that neither party has in any manner relied on the other party’s expertise and/or superior knowledge, if any, in entering into this Agreement. ENERGYPAL and Publisher acknowledge and agree that this Agreement shall be construed as if jointly prepared and drafted by both parties and that under no circumstances will any provision hereof be construed for or against either party due to that party’s actual role in the preparation or drafting of this Agreement. Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder.
- Entire Agreement. The Publisher Agreement and the T&Cs together contain the entire agreement between the parties and supersedes all previous agreements and proposals, oral or written, and all negotiations, representations, warranties, conversations, or discussions between the parties related to the subjects hereof. Publisher acknowledges it has not relied on any representations or statements by ENERGYPAL not included in this written Agreement. The parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the subject hereof exclusively in contract pursuant to the express terms and provisions of this Agreement and the parties hereto expressly disclaim that they are entitled to any remedies not expressly set forth in this Agreement.
- Amendment. The Publisher Agreement may only be amended in a writing signed by or consented to by both parties (which may include, without limitation, email). The T&Cs may only be amended in a writing signed by both parties. All such revisions will be deemed to be a part of and incorporated into the agreement between the parties related to the subjects hereof.
- Conflict. Each executed Publisher Agreement shall incorporate the T&Cs. In the event of a conflict between the Publisher Agreement (including any subsequent written modifications) and the T&Cs, the terms of the T&Cs shall govern. A Publisher Agreement (including any subsequent written modifications) shall take precedence over the T&Cs ONLY where the Publisher Agreement (revised or otherwise) (i) specifically references the T&C section to be modified and (ii) is signed by ENERGYPAL.
- Severability. If any term or provision is held to be unenforceable or invalid to any extent, the remainder of this Agreement shall not be affected and each other term or provision of this Agreement shall be valid to the fullest extent permitted by law.
- Waiver. The failure of any party hereunder to insist upon strict performance of any terms or provisions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such terms or provisions. Rather such terms and provisions shall continue and remain in full force and effect. No waiver shall be deemed to have been made unless the waiver is made in writing and signed by the party making the waiver.
- Assignment. Neither party may assign any of its rights or obligations under a Publisher Agreement or these T&Cs without the express prior written consent of the other party, except pursuant to a merger, consolidation or sale of all or substantially all of such party’s assets, provided that the surviving or transferee entity in such merger, consolidation or sale assumes all of such party’s obligations hereunder and explicitly agrees to be bound by the terms herein.
- Force Majeure. Each party shall be excused from performance and shall not be considered to be in default with respect to any obligation hereunder, if and to the extent that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.
Last Updated: October 17, 2022