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Zephyr Gas Referral Program Terms and Conditions

Updated June 8, 2016

Zephyr's Gas Referral Program (“Referral Program”) is designed to reward individuals who refer a third party/parties (the “Referral”) to Zephyr for wholesale gas services, as described in this Agreement. By filling out the required fields in the referral program sign up form (the “Sign Up Form”) on the website, checking the box to agree to these terms and conditions (the “Terms” and together with the Sign Up Form, the “Agreement”) and then clicking the “Send” button, you (the “Referrer”) agree to be bound by this Agreement.

Gas Referral Program
Once the Referrer accepts this Agreement, Zephyr will contact the Referrer via confirmation email and complete the Referral Program application. Zephyr assumes no compensation or other obligations under this Agreement until and unless a qualifying 60-month gas service agreement is reached with Referral. The Referrer may be an existing customer of Zephyr Solutions, Inc.

Referred Customer
A “Referral” occurs only if Zephyr enters into a definitive 60-month agreement (“Customer Agreement”) to provide gas to the customer that is referred through the Zephyr Gas Referral Program form on the website. A Referred Customer shall not include a party: (a) who is already a Zephyr customer, (b) whose contact information is already in the Zephyr customer database, (c) who has been in contact with a Zephyr representative at any time during the sixty (60) days prior to the Referral date, (d) that does not enter into a service agreement within ninety (90) days of Zephyr contacting the party following the referral, or (e) that does not enter a minimum agreement of 60 months. Zephyr maintains sole and final discretion in determining when and whether or not a Referral has occurred.

Referral Fees & Payment
Zephyr will pay the Referrer a one-time fee of $10.00 USD PER LOCATION signed under the standard 60-month gas service agreement for each Referral (a “Referral Fee”). Payment of Referral Fees to Referrer will be calculated and processed at the end of the working month following completion of the qualifying Referral, and paid no later than sixty (60) days after the end of that month. Referral Fees will not be payable if the Referred Customer cancels, terminates, or otherwise breaks the service agreement at any time, for any reason. Referral Fees will not be payable if the Referred Customer fails to make payment on the service contract. All Referral Fees will be paid in United States Dollars (USD). Referrer must supply Zephyr with complete, current information to permit Zephyr to establish and authorize payment to the Referrer through any and all systems of record implemented by Zephyr Solutions, Inc., and to comply with required legal and/or tax reporting requirements necessary with this Agreement. If Referrer is not an existing customer of Zephyr, the Referrer will receive Referral Fee payment by method of check. All checks are sent via standard mail.

Limitations
Referrer acknowledges and agrees that Referrer’s level of Referral Fee earnings under this Agreement are a direct result of Referrer’s own efforts and that Zephyr does not guarantee that Referrer will earn any Referral Fees under this Agreement. Referrer agrees and acknowledges that no payment of any kind, other than the Referral Fees as provided in this Agreement, is due from Zephyr to Referrer as a result of Referrer making Referrals under this Agreement. Referrer shall not charge any Referred Customer any fees, costs, or charges of any kind on behalf of Zephyr nor accept any payment of any kind on behalf of Zephyr. Nothing in this Agreement is intended to prohibit Referrer from providing services on Referrer’s own behalf to any Referred Customer.

Independent Contractor Relationship
Nothing in this Agreement shall operate to create an employment relationship of any kind between Referrer and Zephyr. If any court or agency construes this Agreement to have created an employment relationship between Referrer and Zephyr, then this Agreement shall have no force and effect, and shall be null and void, beginning on the date on which such employment relationship is deemed to have taken effect. Referrer represents and warrants that Referrer is not currently an employee of Zephyr and that if Referrer becomes an employee of Zephyr after the Effective Date, this Agreement shall immediately terminate without the need for any notice upon the date such employment begins. Further, Referrer shall under no circumstances offer any form of direct compensation to a Zephyr employee related to the activities contemplated by this Agreement, including by issuing payment of any portion of a Referral Fee to such Zephyr employee.

Referrer Covenants
Referrer represents and warrants that Referrer is not an agent of Zephyr and has no authority to make any representations, warranties, or other commitments to any third party on behalf of Zephyr, nor any right or authority to bind Zephyr to any action or agreement whatsoever. Referrer represents, warrants, and covenants that Referrer shall not make any misrepresentations, including by omission, regarding Zephyr, the Zephyr Offerings, or any other products or services that Zephyr provides, in any manner whatsoever. Referrer represents and warrants that Referrer is not a member of the immediate family of any Zephyr employee within Zephyr’s sales department. For this purpose, “immediate family” includes parents, spouses, children, siblings, grandparents, and grandchildren.

Term & Termination
The Effective Date of this Agreement is the date on which Zephyr sends the confirmation email to Referrer and this Agreement shall then continue in effect until terminated as provided herein (“Term”). This Agreement may be terminated by either party upon five (5) days written notice to the other party for any reason or no reason. In addition, this Agreement will terminate immediately and automatically upon any default by Referrer under this Agreement; or as set forth in Independent Contractor Relationship above. Zephyr’s obligation to pay Referral Fees shall immediately cease on termination of this Agreement.

Non-Solicitation & Non-Competition
Referrer acknowledges the character of Zephyr’s business and the substantial amount of time, money, and effort that Zephyr has spent and will spend in building relationships with customers and recruiting competent employees and service providers. Referrer agrees that, during the Term and for a period of one (1) year thereafter, Referrer will not: solicit, hire, or actively assist any other person or entity in soliciting or hiring any Zephyr employee (provided that nothing shall restrict a Zephyr employee from responding to a general solicitation of employment publicly disseminated by Referrer); or compete with Zephyr, directly or indirectly, including as a consultant or an advisor.

General

Assignment
This Agreement is personal to Referrer and any assignment made by Referrer of any rights or obligations hereunder shall be null and void. Zephyr shall have the unrestricted right to assign this Agreement, or any rights and obligations hereunder, without consent or notice to Referrer.

Indemnification
Referrer shall at all times during the Term and thereafter, indemnify and hold harmless Zephyr and its directors, officers, employees, agents, and affiliates, against all claims, proceedings, demands, costs, damages, and liabilities of any kind whatsoever, including legal expenses and reasonable attorneys’ fees, arising out of, connected with, resulting from, or sustained as a result of Referrer’s breach of this Agreement.

Limitation of Liability
IN NO EVENT SHALL ZEPHYR BE LIABLE TO REFERRER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM REFERRER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES OR PROFITS OR LOSS OF BUSINESS OR DATA, REGARDLESS OF WHETHER ZEPHYR WAS ADVISED, SHAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. ZEPHYR’S LIABILITY TO REFERRER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT WHICH ZEPHYR HAS PAID TO REFERRER IN THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

Governing Law, Venue, & Notice of Disputes
This Agreement is governed by the laws of the State of Ohio, excluding its conflict of laws principles. The exclusive venue for any dispute between Zephyr and Referrer shall be Lorain County, Ohio, and Referrer hereby waives any jurisdictional, venue or inconvenient forum objections thereto. Zephyr AND Referrer EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL. Prior to initiating any legal action, the initiating party shall give the other party sixty (60) days written notice of its intent to file an action. Zephyr will provide such notice by e-mail to Referrer’s e-mail address on file with Zephyr, and Referrer must provide such notice by e-mail to admin@askzephyr.com. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute shall finally be settled in a court of competent jurisdiction as set forth herein.

Modifications
This Agreement may be amended only: by Zephyr generally posting revised terms and conditions on the URL containing these terms, or e-mailing Referrer notification that a change has occurred or will occur, and the effective date thereof; or in a writing signed by both parties.

Entire Agreement
This Agreement constitutes the complete and entire expression of the agreement between the parties, and supersedes any and all other representations, warranties, and agreements, whether written or oral, with respect to the subject matter hereof. Referrer expressly agrees that any varying or additional terms contained in any purchase order or any other written notification or document issued by Referrer shall be of no effect and may be accepted for administrative convenience only.

Severability
These terms shall be severable and construed to the extent of their enforceability in light of the parties’ mutual intent. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.

Third Party Beneficiaries
Referrer and Zephyr agreed and intend that there are no third party beneficiaries to this Agreement.

Electronic Contract
This Agreement is an electronic contract. Referrer (or its authorized agent) indicates acceptance of this Agreement by checking the box to agree to the Terms and then clicking the “SEND” button. This action creates an electronic signature that has the same legal force and effect as a handwritten signature on a written contract under any applicable law or regulation, and is equally binding. By clicking the “SEND” button, Referrer (or its authorized agent) acknowledges reading and accepting this Agreement and represents, warrants and agrees that Referrer (or its authorized agent) has the power, authority and legal right to enter into this Agreement on behalf of Referrer.