This is a legal agreement between the Business Associate (defined as the individual agreeing to this clickwrap agreement if acting on its own behalf, or the company that such individual represents if it is acting on behalf of such company) and En-Powered Inc. (where Business Associate is located in Canada) or EnPowered USA Inc. (where Business Associate is located in the United States) (each as applicable “EnPowered”). This agreement (which includes this cover page, Schedule A: Referral Program Terms, and Schedule B: General Terms and Conditions), along with EnPowered’s Privacy Policy at https://www.enpowered.com/privacy, apply to the relationship between EnPowered and Business Associate wherein each Party provides referrals of the other Party’s products and services, and supports the resulting customer relationships, as more specifically defined herein. As such, the Parties agree as follows:
- The Parties will engage in the promotion and referral activities as described in, and in accordance with, Schedule A: Referral Program Terms attached hereto, and such activities shall also be subject to the provisions of Schedule B: General Terms and Conditions.
- Referral fees payable by each Party to the other Party will be as set forth in Schedule A: Referral Program Terms, subject to the conditions therein.
- This Agreement shall continue for a period of one (1) year from the Effective Date and shall automatically renew for a further one (1) year term unless either Party provides notice of its intention not to renew this Agreement at least thirty (30) calendar days prior to the end of the term, or unless earlier terminated.
- This Agreement, consisting of this Referral Agreement cover page, Schedule A: Referral Program Terms, and Schedule B: General Terms and Conditions, establishes the complete obligations of the Parties respecting the subject matter herein, and supersedes all previous negotiations, agreements and understandings relating thereto. Once accepted, this Agreement may not be altered, amended, or modified except by a written instrument signed by both Parties, except as otherwise expressly set forth herein. A Party’s additional or different terms and conditions, whether on its purchase order or otherwise, shall not apply.
This Agreement may be updated by EnPowered from time to time, and it is Business Associate’s responsibility to ensure that its activities are in compliance with the current version of this Agreement.
BY CLICKING ON THE “I AGREE” BUTTON (OR SIMILAR BUTTONS OR LINKS AS MAY BE DESIGNATED BY ENPOWERED TO SHOW ACCEPTANCE OF THIS AGREEMENT), BUSINESS ASSOCIATE IS CONSENTING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF BUSINESS ASSOCIATE DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, BUSINESS ASSOCIATE MUST EXIT WITHOUT CLICKING “I ACCEPT”, AND IN SUCH CASE, NO REFERRAL RELATIONSHIP, RIGHTS OR OBLIGATIONS WILL EXIST BETWEEN THE PARTIES. Business Associate acknowledges and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by EnPowered to show acceptance of this Agreement), Business Associate is entering into a legally binding contract. Business Associate hereby agrees to the use of electronic communication in order to enter into contracts, place orders and create other records, and to the electronic delivery of notices, policies and records as applicable to the subject matter herein. Furthermore, Business Associate hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If you have any questions or inquiries regarding this Agreement, please contact EnPowered at legal@enpowered.com.
Schedule A – Referral Program Terms
Each Party will, from time to time in their sole discretion, refer potential customers to the other Party by following the procedures described herein, and subject to compliance with such procedures, will be eligible for a Referral Fee (as described in this Schedule A). “Referred Customer” means, as applicable, a customer referred to: (a) EnPowered by a business associate of EnPowered (including Business Associate), that EnPowered accepts as a customer for an EnPowered Qualifying Program, in its sole discretion, or (b) Business Associate by EnPowered, that Business Associate accepts as a customer for Business Associate services, in its sole discretion. “EnPowered Qualifying Program” means a service offering of EnPowered where EnPowered has entered into an agreement directly with the customer and provides its energy savings programs directly to such customer, and not to other entities through such customer, such offerings to be identified to Business Associate from time to time. For greater certainty, EnPowered Qualifying Programs shall not include any service offerings in which EnPowered is offering services to Business Associate, and amounts are paid between EnPowered and Business Associate in a different compensation model.
For Customers Referred by Business Associate
The Business Associate must register the potential customer as a lead with EnPowered via the “Submit a Referral” section in the Partner Portal, and receive written confirmation from EnPowered if the lead has been approved. Upon lead registration, EnPowered will notify the Business Associate if there is existing activity (an active deal) either directly by EnPowered or by a third party (another EnPowered Business Associate).
Referral Fees are only paid to one EnPowered business associate per Referred Customer. If there are multiple parties referring a customer to EnPowered, and such customer becomes a Referred Customer, Referral Fees will be paid to the business associate nominated as the referring party by the Referred Customer. Notwithstanding the foregoing, even if Business Associate was not nominated as the referring party by the Referred Customer, the Business Associate will be eligible for a Lead Referral Bonus if the Business Associate was actively engaged in the EnPowered sales process, and the Business Associate has registered and approved the lead with EnPowered, provided electricity billing data, and secured a meeting with Referred Customer and EnPowered. The total Referral Fees paid to all parties on any one Referred Customer will not exceed 20% of the net ongoing revenue received from the Referred Customer initial sale, and EnPowered shall determine the percentage split between the parties in its sole discretion. Referral Fees are only paid where the Business Associate has been active in the Referred Customer initial sale. Prior to a customer becoming a Referred Customer, if there has been no deal activity communicated to EnPowered by the Business Associate or a third party (or parties) within a 45 day period from the initial identification of such customer, the customer will be deemed ‘inactive’, and will not be eligible for Referral Fees, even if EnPowered subsequently enters into a relationship with such customer. Business Associate must also comply with any parameters set forth in EnPowered’s Referral Partner Program Guide, as provided to Business Associate and as available on EnPowered’s Partner Portal.
For Customers Referred by EnPowered
EnPowered will refer potential customers to Business Associate in accordance with Business Associate’s standard referral procedures, or if none are in place, then via regular business communications methods. Referral Fees are only paid if EnPowered has been active in the Referred Customer initial sale. Prior to a customer becoming a Referred Customer, if there has been no deal activity communicated to Business Associate by EnPowered within a 45 day period from the initial identification of such customer, the customer will be deemed ‘inactive’, and will not be eligible for Referral Fees, even if Business Associate subsequently enters into a relationship with such customer.
Referral Fees
For each Referred Customer sale for an EnPowered Qualifying Program that the Business Associate facilitates, EnPowered will pay Business Associate a Referral Fee of 20% of the net ongoing revenue received from the Referred Customer initial sale.
For each Referred Customer sale for Business Associate services that EnPowered facilitates, Business Associate will pay EnPowered a Referral Fee of either 5% of the net ongoing and/or one-time revenue received, or a different fee agreed upon in writing by both Parties.
Referral Fee payments to a Party will be made no more than forty five (45) days after the date that the other Party receives payment from the Referred Customer; no Referral Fee on a particular sale shall be owing to a Party until and unless the Referred Customer pays the other Party for the subject sale. Should either Party not be able to accept the Referral Fees, the Referral Fees can be donated to either Parties local Charity of choice.
So that each Party is appropriately compensated in accordance with market conditions, each Party reserves the right to change the Referral Fee for their respective Referred Customer sales only, with ninety (90) days advance written notice to the other Party. Such changes do not affect the amounts payable for then-existing Referred Customers.
Referral Fees will be paid minus any taxes, subsequently credited charges, write-offs, refunds or charge backs to the Referred Customer. All Referral Fee payments will be made in USD. Referral Fees paid by EnPowered to the Business Associate will be made available via the Partner Portal which will require Stripe or PayPal access to receive the referral fees. The Business Associate shall be responsible for any transaction or currency conversion fees applicable to receive Referral Fees.
Each Party will continue to pay the other Party the Referral Fee for each Referred Customer until the earlier of the following occurrences: (a) the Referred Customer ceasing to be a customer of the Party to whom the Referred Customer was referred, and (b) the expiration or termination of this Agreement. In the event of a conflict, either Party may ask the Referred Customer to verify.
Promotion and Sales
Subject to the terms in Schedule B respecting marketing obligations and trademarks usage, each Party may promote the products and services of the other Party to its customers, but neither Party is authorized to accept any sale or act as an agent of the other Party.
Schedule B – General Terms and Conditions
Marketing Obligations
Each Party will reasonably support the other Party in pursuing sales with Referred Customers, including introducing the other Party’s representatives to such Referred Customers and facilitating any meetings between such representatives and the Referred Customers. In performing their obligations under this Agreement, each Party will: (a) conduct business in a manner that reflects favorably at all times on the reputation of the other Party, and in particular, it shall not engage in deceptive, misleading, illegal or unethical practices that might reasonably be detrimental to the other Party or its products or services, (b) not make any representations, warranties or guarantees about the other Party or any of its products or services unless expressly authorized in writing by the other Party, and (c) comply with all applicable federal, state, provincial and local laws and regulations in the performance of activities hereunder. Each Party will use any materials provided by the other Party hereunder only for the purpose of performing their obligations herein and specifically for the purposes specified by the other Party, and shall not copy, publish, modify, alter or otherwise improperly use such materials, including to represent the inaccurately or to provide to any competitor of the other Party. All such materials shall be immediately returned to the providing Party upon termination of this Agreement.
Each Party acknowledges and agrees that: (a) orders received by it for the purchase of the other Party’s products and services shall be immediately forwarded to the other Party, and shall be subject to acceptance by the other Party, who reserves the right to accept or reject any order in its sole discretion; (b) the prices and other terms of sale of the other Party’s products and services shall be determined solely by the other Party; and (c) it has no authority to negotiate or finalize sales on behalf of the other Party (except in case-by-case situations where such authority is expressly granted by the other Party in writing in advance), or to accept any cancellation of orders, or otherwise represent the other Party except as specifically described herein.
The promotion, marketing and referral activities hereunder are non-exclusive, and each Party is free to pursue sales opportunities and use third parties for sales and marketing purposes as they see fit. Each Party shall be solely responsible for all expenses incurred as a direct or indirect result of its performance of its activities hereunder, and shall not be entitled to reimbursement of such expenses by the other Party, unless otherwise expressly agreed in writing. Each Party will also be responsible for paying all applicable federal, provincial and local taxes associated with its operations and activities hereunder, including income taxes, and all other amounts required to be paid in respect of money paid to it hereunder.
The referring Party shall be solely responsible for obtaining the Referred Customer’s consent to the disclosure of the Referred Customer’s information to the other Party in relation to the referral activities undertaken pursuant to this Agreement, such consent to be consistent with the requirements of any applicable privacy legislation and sufficient for the other Party to pursue sales opportunities with such Referred Customer.
Trademarks Usage and Intellectual Property
As expressly agreed upon in writing, each Party may use the other Party’s logo on their website and on marketing material or for other purposes, and in connection therewith, each Party hereby grants the other Party, during the term of this Agreement, a personal, non-exclusive, revocable, non-transferable license to use, reproduce and display its trademarks and service marks solely for the purposes of performing the activities described in this Agreement. Each Party reserves the right to ask for changes to the other Party’s use of their trademarks and service marks (including the logo) in their reasonable discretion.
Each Party acknowledges that they do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, confidential information, or trade secrets, whether registered or unregistered, relating to the other Party’s products, services, or any part thereof. Any rights not expressly granted under this Agreement are reserved.
Support
EnPowered and Business Associate shall provide telephone and email support to Referred Customers directly for setup, new products/features, and on-going support, including for renewal and upselling discussions. Each Party will be made aware of any such discussions.
Spam
EnPowered has a strict anti-spam policy: sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers or with whom the sender did not have an existing business relationship, is strictly prohibited.
User Data
Each Party may disclose to third parties certain aggregate information or related data. Such information must not include personally identifying information or confidential information of the other Party, except as specifically authorized by the other Party, or in the good faith belief that such action is reasonably necessary to comply with the law, or legal process, provided that, prior to such disclosure, the other Party is provided with written notice and an opportunity to limit such disclosure. Each Party will comply with all applicable laws, regulations and rules in relation to its use and handling of such information, as well as any parameters that the disclosing Party may set.
Termination
Either Party may terminate this Agreement at any time for any or no reason in such Party’s sole discretion upon ninety (90) days written notice. This Agreement may be terminated immediately by either Party in the event the other is in breach of, or has failed to perform any obligation required to be performed under this Agreement, and such failure is not corrected within thirty (30) days from receipt of written notice advising of such failure from the other Party. Any obligations, rights or remedies of each Party arising prior to the date of termination shall survive termination.
Confidential Information
Any confidential information disclosed hereunder will be subject to the terms of any applicable non-disclosure agreement entered into between the Parties, and in any event, the Parties will use reasonable care to protect the confidentiality of confidential information disclosed under this Agreement. Each Party agrees not to use, disclose or reproduce the Confidential Information of the other Party except as reasonably required in the performance of the Services and with the knowledge and express written consent of the other Party, or to the limited extent required by law. The Parties agree to advise the other Party immediately in writing of any disclosure, misappropriation, conversion or misuse by any person of any confidential information of which it may become aware. Without granting any right or license, such non-disclosure obligations shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving Party; or (ii) is independently developed by other Party without use of the confidential information of the disclosing Party. These restrictions will continue to apply until and unless the confidential information meets the foregoing exceptions to confidentiality, and shall survive the expiration or termination of this Agreement.
No Warranties
Each Party is performing its obligations hereunder “AS IS” without warranty or conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability and fitness for a particular purpose, title, non-infringement, security or accuracy. Neither Party assume any responsibility for any errors, omissions or inaccuracies whatsoever in the information provided hereunder, and each Party acknowledges that any estimates, projections, or forecasts provided to it by or on behalf of the other Party are only estimates and are not representations that such estimates will be realized. Under no circumstances will either Party be liable for any loss or damage caused by the other Party’s reliance on information obtained under this Agreement. It is each Party’s responsibility to evaluate the accuracy, completeness and usefulness of any information provided, and neither Party has any control over, and no duty to take any action, regarding any acts or omissions taken by the other Party, including without limitation, how the other Party may interpret or use materials accessed or disclosed hereunder, or what actions the other Party may take as a result of the referrals made hereunder. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to Customer.
Indemnity
Each Party shall be solely responsible for all their activities undertaken under this Agreement and agrees to indemnify, defend and hold the other Party (and each of its parent organizations, subsidiaries, officers, directors, employees, attorneys and agents) harmless against all damages, liabilities, expenses (including reasonable fees and disbursements of counsel), judgments, settlements and penalties of every kind in relation to claims, suits, actions or demands, brought by a third party (‘Claims’), to the extent that such Claims arise out of their breach of this Agreement, negligence, willful misconduct or violation of applicable laws in relation to their performance of activities under this Agreement. The indemnified Party in any such case shall (a) give written notice of the claim promptly to the indemnifying Party; (b) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless the indemnifying Party unconditionally releases the indemnified Party of all liability); (c) provide to the indemnifying Party all available information and assistance at the indemnifying Party’s expense; and (d) not compromise or settle such claim without the indemnifying Party’s express written consent.
Limitation of Liability
Except for damages arising from a breach of confidentiality, the indemnity obligations herein, or infringement of a Party’s intellectual property rights, in no event shall either Party be liable to the other Party under any theory of liability, and whether in an equitable, legal, or common law action, for any indirect, special, incidental, punitive, exemplary, or consequential damages (including without limitation lost profits, or loss of business revenue or earnings) directly or indirectly arising out of or in connection with the transactions contemplated by this Agreement, whether or not such damages could reasonably be foreseen or their likelihood has been disclosed to such Party.
Independent Contractors
Each Party shall perform its obligations hereunder as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the Parties. Except as expressly authorized by a Party in this Agreement, neither Party shall act or purport to be acting as the legal agent of the other Party, nor enter into any agreement on behalf of the other Party or otherwise bind or purport to bind the other Party in any manner whatsoever.
Assignment
Neither Party shall assign or transfer this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld, provided however that either party may at any time, upon notice to but without consent from the other party, assign and transfer this Agreement and all rights and obligations hereunder to any affiliate, or to a third party in the context of the purchase of all the shares in the corporation or of the assets relating to such party’s performance of its obligations hereunder.
Notices
Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, courier or facsimile addressed the Parties at their respective addresses appearing in this Agreement, or to such other address as one Party advises the other Party in writing.
General
If the Business Associate is located in the United States, this Agreement shall be governed by the laws of the State of Delaware, USA; otherwise, this Agreement shall be governed by the laws of the Province of Ontario, Canada. If any one or more of the provisions of this Agreement is held to be invalid, illegal, or unenforceable in any respect, this Agreement shall be construed to give the broadest legal interpretation to such provision. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements and understandings relating to the subject matter hereof. Except as expressly set forth herein, this Agreement may not be altered, amended, or modified except by a written instrument signed by both Parties. This Agreement may be executed by clickwrap electronic agreement, or in counterparts, or facsimile counterparts, each of which when executed by either of the parties shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.
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