MASTER SUBSCRIPTION AGREEMENT
Retail Energy XChange (“REX”) Service
Last Updated 8/10/16
BY LOGGING INTO THE ENERGY PROCUREMENT ONLINE SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF THE REX ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. THIS IS A LEGALLY BINDING AGREEMENT.
As part of the REX hosted Service, REX will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the REX website incorporated by reference herein, including but not limited to REX’s privacy and security policies.
- LICENSE GRANT. REX hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by REX and its licensors. You may not access the Service if you are a direct competitor of REX, except with REX’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
- LICENSE LIMITATIONS. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; (v) use the Service in any manner which, in REX’s sole discretion, interferes with its ability to offer its services. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
- INTELLECTUAL PROPERTY OWNERSHIP. REX alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the REX Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the REX Technology or the Intellectual Property Rights owned by REX. The REX name, the REX logo, and the product names associated with the Service are trademarks of REX or third parties, and no right or license is granted to use them.
- YOUR RESPONSIBILITIES. You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall:
- notify REX immediately of any unauthorized use of any password or account or any other known or suspected breach of security;
- report to REX immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users;
- not impersonate another REX user or provide false identity information to gain access to or use the Service;
- observe the highest standard of integrity and fair dealing and do nothing to discredit, dishonor, reflect adversely upon or in any manner injure the reputation or business of REX or its energy suppliers (“Suppliers”);
- make informed and accurate representations of REX energy information in connection with your solicitation and sales activities;
- use commercially reasonable efforts to ensure customer satisfaction, including but not limited to assisting REX with responding to customer problems in a timely manner;
- not advertise REX energy services using the trademarks and tradenames of Suppliers by mail, electronic mail, classified advertisements, newspaper, television, radio, business shows, internet, or any other means without the prior express written consent of REX, which may be withheld by REX in its sole discretion;
- solicit and take orders only for the purchase of REX energy services at the prices and on such terms and conditions specified by REX Suppliers. No quote, proposal or contract given or taken by you shall be binding until accepted by the applicable Supplier in accordance with the Supplier’s policies and procedures. REX and its Suppliers reserve the right in its sole discretion to reject, in whole or in part, any quote, proposal or contract given or taken by you;
- make no representations, guarantees or warranties with respect to the REX energy services that are inconsistent with the written representations, guarantees, and warranties provided and issued by the applicable Supplier;
- not alter or amend the REX energy services provided to a customer;
- acknowledge, agree, represent and warrant that you will not engage in the practice known as “Slamming” (the changing of a customer’s underlying energy supplier without the written consent of such customer);
- agree that Suppliers are the exclusive owner of all trademarks and tradenames relating to the Services. You may use such trademarks and tradenames only for the purpose of advertising and promoting the REX energy services consistent with the terms and conditions hereof, and you shall acquire no proprietary or other rights with respect to such tradenames, trademarks or other intellectual property;
- be required to successfully complete an REX agent certification program (“Certification Program”) before you may begin selling REX energy services. The Certification Program shall consist of electricity industry basic training along with the energy sales and marketing rules as established by regulatory entities in the state(s) that you shall sell REX energy services. REX in its sole discretion may waive the Certification Program if you provide sufficient information to REX that the Certification Program is not applicable based on your previous industry experience; an
- agree to validate any data you upload to REX for completeness and accuracy. If you upload a Letter of Authorization (“LOA”) to REX to request historical energy usage from an electric utility company on behalf of a customer, you shall ensure that customer has authorized the LOA. If you elect to upload historical energy usage data to REX for a customer as provided by an electric utility company, you shall not alter the original data file provided by the electric utility company for any reason.
- PRIVACY & SECURITY; DISCLOSURE. REX’s privacy and security policies may be viewed at http://myREX.com/privacy. REX reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
- PASSWORDS. To protect your personal information, access to the Service requires submission of login and password information to create a User account. The login and password are for your personal use only and are not transferable. You may not share your login or password with any other individual. You agree that you will be responsible for maintaining your password as confidential and for any activity that occurs as a result of your enabling or permitting another person or entity to use your password. You agree to immediately notify us in the event that: (i) your password is lost or stolen; or (ii) you become aware of any unauthorized use of your password or of any other breach of security related to the Service. We are not responsible for any loss or damage arising from your failure to comply with the provisions of this section.
- SUBSCRIPTIONS. REX may charge you for some of its products. If you purchase any of REX’s products or services, you agree to any terms (such as a minimum term of service, recurring subscription fees, or payment terms) of which we notify you during your purchase of the products or services.
- ACCOUNT INFORMATION AND DATA. REX does not own any data, information or material that you submit to the Service in the course of using the Service (”Customer Data”). You, not REX, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and REX shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. REX reserves the right to withhold, remove and/or discard Customer Data without notice for any breach. Upon termination, your right to access or use Customer Data immediately ceases, and REX shall have no obligation to maintain or forward any Customer Data
- TERMINATION. You may terminate this Agreement with or without cause. Any breach of your obligations or unauthorized use of the REX Technology or Service will be deemed a material breach of this Agreement. REX, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that REX has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
- NEW VERSIONS. REX may, in its sole discretion, add features or functions or provide bug fixes, patches, updates and upgrades to the Service, which may be provided automatically. If you do not want to receive such upgrades automatically, do not use the Service.
- ELECTRONIC COMMUNICATIONS. By using the Service, you consent to receiving electronic communications from REX. These communications are part of your relationship with REX and will include notices about your account (e.g. confirmations and other transactional messages) and information concerning or related to REX’s service, such as Service updates, new features, and other important information about your account or service.
- REPRESENTATIONS & WARRANTIES. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. REX represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online REX help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service.
- INDEMNIFICATION. You shall indemnify and hold REX, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement.
- NO WARRANTY. THE SERVICE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REX AND ITS LICENSORS SPECIFICALLY DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR QUALITY AND/OR PERFORMANCE. REX DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE’S OPERATION WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE INTERNET WILL BE AVAILABLE, THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT ALL YOUR COMMUNICATION WILL BE SECURE OR DELIVERED TO YOUR RECIPIENTS, WHETHER THEY ARE YOUR INTENDED RECIPIENTS OR OTHERWISE, OR THAT THE INFORMATION (INCLUDING, WITHOUT LIMITATION, PERSONAL INFORMATION), CONTENT AND/OR FILES STORED AND/OR ARCHIVED IN THE SOFTWARE OR ON REX’S SERVERS WILL BE AVAILABLE, ACCESSIBLE, SECURE AND/OR ACCURATE. REX WILL NOT BE LIABLE FOR ANY OF THE FOREGOING. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusions or limitations set forth above, and therefore, may not apply to you.
- LIMITATION OF LIABILITIES. NEITHER REX NOR ANY OF ITS LICENSORS, AGENTS OR CONTRACTORS IN CONNECTION WITH THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE SERVICE IS TO CEASE TO USE THE SERVICE. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
- INTERNET DELAYS. REX’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. REX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- APPLICABLE LAWS AND VENUE. The Service and this Agreement (including without limitation the validity, construction and performance of duties related to the Agreement) will be governed by and construed in accordance with the laws of the United States of America and the laws of the State of Texas without giving effect to any principles of conflicts of laws. Venue with respect to any dispute (not subject to arbitration as provided below) between REX and User will rest exclusively in the state or federal courts located in Dallas, Texas unless such venue would deprive User of any remedy, at law or in equity, which would otherwise be available in User’s state of residence. REX makes no representation that the Service is appropriate or available for use outside the United States, and access to it from territories where it is illegal is prohibited. If you use the Service to communicate with individuals outside the U.S., you are responsible for ensuring that such communications comply with applicable local laws, including the European Union Directive, and other privacy or other laws. You may not use or export or re-export any materials or services related to the Service or any copy or adaptation in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations. If you choose to use the Service from outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws. You agree that any cause of action or claim that you may have relating to the Service must be made or instituted within one year of when the cause of action or claim accrued.
- DISPUTE RESOLUTION. User shall first contact REX regarding any claim or controversy arising out of or relating to this Agreement, or any breach thereof. In the event such claim or controversy cannot be resolved informally, User and REX agree to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration. Any claim or controversy arising out of or relating to this Agreement, or any breach thereof, except such claims or controversies for which injunctive relief is available, that cannot be resolved by mediation within 30 days shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules including the Supplementary Procedures for Consumer-Related Disputes (collectively, “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. User agrees that, by accepting this Agreement, User waives the right to bring an action relating to the Agreement or the Service as part of a class action suit. The Federal Arbitration Act shall govern the interpretation and enforcement of this provision. Unless REX and User agree otherwise, any arbitration hearings will take place in the county (or parish) of User’s residence. If the claim or controversy is for $10,000 or less, Company agrees that User may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator(s), through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If the claim or controversy exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
- MODIFICATION TO TERMS. REX reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement that may be viewed at http://myREX.com/terms. Continued use of the Service after any such changes shall constitute your consent to such changes.