By signing in I acknowledge that I have read and understand the Terms of Service when using ECS Portal.
This Agreement (TOS USER AGREEMENT) sets out the Terms of Service under which ECS (Energy Choice Services,LLC), makes available and operates the "ECS Portal" which is an, Energy Sales Management Platform for the execution of Energy Sales transactions on the ECS Platform by ECS registered Brokers (user) participants.
1. ACCESS TO ECS PORTAL AND SERVICES.
ECS hereby grants authorized Broker participants and perspective Broker participants the right to access and use the ECS Portal. Broker understands and agrees to the provisions provided under this Agreement and that the Broker shall not be entitled to receive any other services, express or implied, pursuant to this Agreement. BY USING THE ECS PORTAL, YOU AGREE TO THESE TERMS OF SERVICE; IF YOU DO NOT AGREE, DO NOT USE THE ECS PORTAL.
2. TERMS OF ACCESS.
The Terms of this Agreement, taken together with the Broker Agreement, will govern Broker access to the ECS Portal. ECS may amend the Terms at any time by posting amendments on the ECS website at https://energychoiceservices.com/.
3. BROKER’S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Broker hereby represents, warrants and covenants as follows:
(a) Broker acknowledges that the ECS Portal (and any software related thereto), and all information and content (including ECS Data) distributed or made available thereby or in any way related to the ECS Portal or ECS Services (such information or content and information derived therefrom being referred to collectively herein as “ECS Data”) are the exclusive proprietary property of ECS, constituting trade secrets;
(b) The Broker has been granted a limited license to use the ECS Portal, ECS Services and ECS Data solely for the purposes set forth herein and in the Broker Agreement. Broker will have no other rights with respect to the ECS Portal, ECS Services and ECS Data. Broker agrees that it will not copy, modify, reverse engineer, reverse assemble or reverse compile any of the ECS Data distributed or made available by ECS, or contained the ECS Portal;
(c) The Broker will not distribute, rent, sell, retransmit, redistribute or release ECS Data or any part thereof to any third party (other than to its affiliates and agents subject to and in accordance with this Agreement);
(d) Notwithstanding the foregoing, any and all data submitted to the ECS Portal by Broker in connection with the Services shall be the non-exclusive property of ECS, Broker and the Energy Supplier on behalf of which an order is entered, and each party shall have the right to use, retransmit or redistribute such data in accordance with and subject to the provisions of the TOS USER AGREEMENT Terms relating to the use of such data;
(e) Broker will comply with the TOS USER AGREEMENT Terms and any and all laws, rules, regulations or orders applicable to Broker, including, without limitation, with respect to Broker’s access to and use of the ECS Portal and ECS Data;
(f) Broker acknowledges that ECS may, immediately and without notice, suspend or terminate Broker’s access to and utilization of the ECS Portal and terminate the Agreement in the event of a breach of the Agreement by Broker;
(g) Broker further acknowledges that ECS may, in its sole discretion, temporarily or permanently cease to provide the services to Broker, but in any event shall comply with the minimum notification requirements agreed upon in the TOS USER AGREEMENT Terms;
(h) Broker also acknowledges that its access to and utilization of the ECS Portal may be monitored by ECS for its own purposes (including, without limitation, for purposes of monitoring levels of activity and for purposes of maintaining the functional and operational integrity of the System and for purposes of complying with applicable laws and regulations) and not for the benefit of Broker;
(i) Broker attests it has all necessary power and authority to accept this Agreement, and this Agreement is its legal, valid and binding agreement, enforceable against Broker in accordance with its terms. Neither the execution of nor performance under this Agreement by Broker violates any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Broker. Broker has full power and authority to act on behalf of its Customers (Participants) for whom it will utilize the ECS Portal;
(j) Broker agrees to provide ECS with information related to Broker’s use of the ECS Portal or the activities of Broker’s Customers that is reasonably requested by ECS, if such information is reasonably necessary in order to enable ECS to maintain the integrity of the ECS Portal, or to comply with applicable laws or regulations, and such information will be accurate and complete in all material respects and subject to the Confidentiality provisions of the Broker Agreement.
4. USER IDs AND PASSWORDS.
(a) ECS shall issue to Broker, through its employees designated as its administrator(s) with respect to Broker’s use of the ECS Portal, one or more user IDs and passwords (collectively, the "Passwords") for use exclusively by Broker or a Broker affiliate that is properly authorized to access the ECS Portal on behalf of Broker;
(b) Broker will be solely responsible for controlling and monitoring the use of the Passwords, will provide the Passwords only to its Authorized Employees, and will not provide the Passwords to any third party;
(c) Broker will immediately notify ECS of any unauthorized disclosure or use of the Passwords or access to the ECS Portal or of the need to deactivate any Passwords;
(d) Broker acknowledges and agrees that it will be bound by any actions taken through the use of its Passwords (except through the fault or negligence of ECS), including the use of the ECS Portal, whether or not such actions were authorized. Broker will only use the Passwords to access and use the ECS Portal from the IP address specified by Broker and accepted by ECS;
(e) The Broker User Administrator(s) shall be responsible for all communications between ECS and Broker. Notices or other communications sent to the Broker, User Administrator by ECS shall be binding on Broker.
(a) This Agreement, as amended from time to time, will continue in effect unless and until terminated by either party upon 30 days’ written notice to the other, provided that this Agreement shall remain in effect with respect to the ECS Portal for Transactions effected prior to such termination and provided that ECS complies with any additional termination notification requirements governing the ECS Portal in the Broker Agreement. Termination of the Broker Agreement shall terminate use of the ECS Portal provided by ECS to the Broker;
(b) Each party's continuing obligations under this TOS USER AGREEMENT, including, without limitation, those relating to "Indemnification" and "Confidentiality", will survive the termination of this Agreement.
(a) All ECS Portal access or licensing fees incurred by Broker hereunder in any calendar month shall be invoiced by ECS to Broker based on the Broker Commission Schedule, as amended from time to time, and as set forth in the Broker Commission Schedule.
(b) ECS will provide Broker with an invoice which states the amount owed by Broker, including any fees, other charges or related taxes, which will be due and payable in the currency, timeframe and manner specified in the Commission Schedule or invoice;
(c) Late payments will bear interest after the due date at a rate per annum of interest equal to the Prime Rate (as published in the Wall Street Journal) plus 1.5%, to the extent that such rate shall not exceed the maximum rate allowed by applicable law;
(d) Broker shall be liable for all taxes arising out of this Agreement.
7. LIMITATION OF LIABILITY; INDEMNITY.
(a) BROKER ACKNOWLEDGES, UNDERSTANDS AND ACCEPTS THAT ECS MAKES NO WARRANTY WHATSOEVER TO BROKER AS TO THE ECS PORTAL OR SERVICES, EXPRESS OR IMPLIED, AND THAT THE ECS PORTAL, ECS DATA AND ECS SERVICES ARE PROVIDED ON AN “AS IS” BASIS AT BROKER’S SOLE RISK. ECS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ECS NOR ITS DIRECTORS, MANAGERS, OFFICERS, AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY WITH RESPECT TO, NOR NO SUCH PARTY SHALL HAVE ANY LIABILITY TO BROKER (i) FOR THE ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY, PERFORMANCE OR CONTINUED AVAILABILITY OF THE ECS PORTAL OR SERVICE. ECS SHALL HAVE NO DUTY OR OBLIGATION TO VERIFY ANY INFORMATION DISPLAYED VIA THE ECS PORTAL. BROKER ACKNOWLEDGES AND AGREES THAT ECS IS NOT AN ADVISOR OR FIDUCIARY OF BROKER OR ITS CUSTOMERS. WITHOUT LIMITATION OF THE FOREGOING, BROKER ACKNOWLEDGES, AGREES AND ACCEPTS THAT ECS SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY MATTERS RELATED TO BROKER’S RELATIONSHIP OR DEALINGS WITH ITS CUSTOMERS, INCLUDING BUT NOT LIMITED TO THE EXECUTION OF TRANSACTIONS OR THE ACCURACY OF ANY INFORMATION SUBMITTED THROUGH THE ECS PORTAL IN CONNECTION WITH BROKER’S USE OF THE ECS PORTAL, ALL OF WHICH SHALL BE THE SOLE RESPONSIBILITY OF BROKER;
(b) BROKER SHALL INDEMNIFY, PROTECT, AND HOLD HARMLESS ECS, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, JUDGMENTS, SUITS, ACTIONS, PROCEEDINGS, CLAIMS, DAMAGES, OR COSTS (INCLUDING ATTORNEY'S FEES) RESULTING FROM OR ARISING OUT OF (I) ANY ACT OR OMISSION BY ANY PERSON OBTAINING ACCESS TO THE ECS PORTAL THROUGH THE PASSWORDS (OTHER THAN THROUGH THE FAULT OR NEGLIGENCE OF ECS), WHETHER OR NOT BROKER HAS AUTHORIZED SUCH ACCESS; OR (II) ANY CLAIM BY ANY CUSTOMER OF BROKER INVOLVING OR RELATING IN ANY WAY TO THE ACTS OR OMISSIONS OF BROKER;
(c) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
(d) Notwithstanding, in the event that ECS is determined to be liable to Broker for any cause, Broker expressly agrees that in acceptance of this Agreement, ECS’s aggregate liability, for all causes of action, shall not exceed the sum total of all fees paid to ECS by Broker during the six (6) month period preceding the action.
(a) Any and all non-public information in any form obtained by either party or its employees arising out of or related to the provision or use of the ECS Portal, including but not limited to trade secrets, processes, software, and other proprietary data, research, information or documentation related thereto (ECS Data), shall be deemed to be confidential and proprietary information;
(b) Each party agrees to hold such information in strict confidence and not to disclose such information to third parties (other than, to the extent permitted by the TOS USER AGREEMENT Terms, to its employees, its affiliates and their employees or its agents) or to use such information for any purpose whatsoever other than as contemplated and permitted by the Terms and to advise each of its employees, affiliates and agents who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential;
(c) Confidential information shall not include information which is: (i) in or becomes part of the public domain other than by disclosure by such party in violation of this Agreement; (ii) known to or obtained by such party previously without an obligation of confidentiality; (iii) independently developed by such party without use of or reference to the other party’s confidential information; (iv) required to be disclosed by applicable law or regulation, or pursuant to a subpoena or order of a court or regulatory, self-regulatory or legislative body of competent jurisdiction; (v) disclosed in connection with any regulatory or self-regulatory request for information;
(d) In the event that ECS is required to disclose confidential information, ECS shall request that the recipient treat the information provided as confidential pursuant to the U.S. Freedom of Information Act for a U.S.-based recipient, or pursuant to an equivalent or comparable law or regulation, if applicable, of the foreign jurisdiction in which the recipient is based.
9. Intellectual Property Rights.
Broker acknowledges and agrees that:
(a) Any and all ECS's Intellectual Property Rights are the sole and exclusive property of ECS or its Suppliers;
(b) All intellectual property rights in the ECS Portal Software Product and user documentation are owned by ECS or its Suppliers and are protected by law, including but not limited to United States copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions.
(c) The structure, organization and code of the ECS Portal Software Product are the valuable trade secrets and confidential information of ECS and its Suppliers and may not be shared in part or in whole with any 3rd party unless authorized by ECS in writing.
9. 2 Limitation on Reverse Engineering.
(a) Broker may not reverse engineer, decompile, disassemble or create derivative works of the ECS Portal Software Product;
(b) Nothing contained herein shall be construed, expressly or implicitly, as transferring any right, license or title to the Broker;
(c) Unauthorized copying of the ECS Portal Software Product or failure to comply with the above restrictions will result in automatic termination of this Agreement and will constitute immediate, irreparable harm to ECS for which monetary damages would be an inadequate remedy, in which case injunctive relief will be an appropriate remedy for such breach.
(a) All notices delivered with respect to this Agreement shall be in writing and either (i) hand delivered or forwarded by registered or certified mail; or (ii) sent via electronic mail, in either case to the relevant address provided by a party for such purpose.
11. NO THIRD-PARTY BENEFICIARY.
(a) Nothing in this Agreement shall be considered or construed as conferring any right or benefit on a person not a party to this Agreement or imposing any obligations on ECS or Broker to persons not a party to this Agreement.
12. FORCE MAJEURE.
(a) Neither ECS nor Broker shall be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of ECS Portal resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, strikes, fires, other catastrophes, power failure or any other cause beyond its reasonable control.
13. WAIVER. (a) No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.
This Agreement may not be assigned by either party without the other party's express prior written consent; provided, however, that:
(a) Broker may assign this Agreement to any entity (i) controlling, controlled by, or under common control with such party, or (ii) which succeeds to all or substantially all of the assets and business of such party, provided that, in the case of any such assignment by Broker, the assignee agrees in writing to assume the assignor’s obligations under, and to be bound by the provisions of, this Agreement (as it may be amended from time to time); and
(b) ECS may assign all or part of its rights and obligations under this Agreement to any entity (i) controlling, controlled by, or under common control with ECS, or (ii) which succeeds to all or substantially all of the assets and business of ECS, provided that, in the case of any such assignment by ECS, the assignee agrees in writing to assume the obligations under, and to be bound by the provisions of, this Agreement that have been assigned. On the effective date of any valid assignment, the assignor shall be released from all obligations and liabilities arising under this Agreement or, in case of a partial assignment by ECS, from all obligations and liabilities arising from the parts of this Agreement that have been assigned.
(c) This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns in accordance with its terms.
15. GOVERNING LAW.
(a) Unless otherwise specified in an annex, this Agreement is deemed entered into in Tampa, Florida and shall be governed and construed in all respects by the laws of the Florida, without giving effect to principles of conflict of law.
16. DISPUTE RESOLUTION.
(a) Unless otherwise specified in an annex, any dispute, claim or controversy between the parties relating to this Agreement shall be resolved through binding arbitration conducted in accordance with the Arbitration Rules of the American Arbitration Association. Any such arbitration shall be conducted in Tampa, Florida or at such other location as may be agreed to by the parties and the arbitrators. For the avoidance of doubt, this arbitration clause only applies to ECS and the Broker and does not apply to any disputes arising between a Broker and its Customer (Participant) or any other disputes between parties other than ECS and the Broker.
(b) Notwithstanding the foregoing, each party acknowledges that a breach of this Agreement may cause the other party irreparable injury and damage and therefore may be enjoined through injunctive proceedings in addition to any other rights and remedies which may be available to such other party at law or in equity, and each party hereby consents to the jurisdiction of any federal or state courts located in Tampa, Florida with respect to any such action. The parties expressly waive their right to trial by jury in any such action.
(a) The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.
18. SEVERABILITY AND ENTIRE AGREEMENT.
(a) If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby. The Broker Agreement and the TOS USER AGREEMENT supersedes all negotiations, agreements and understandings among the parties with respect to the subject matter hereof and constitute the entire agreement between the parties with respect thereto.
(a) This Agreement may be executed in multiple counterparts or digitally, each of which shall be deemed an original, but all of which together shall constitute one agreement binding on the parties hereto.
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