Affiliate Program Agreement.
THIS AFFILIATE PROGRAM AGREEMENT (THE “AGREEMENT”) BETWEEN HYPERCHARGE NETWORKS CORP. (“HYPERCHARGE,” “WE,” “US,” OR “OUR“) AND YOU (“AFFILIATE,” “YOU,” “YOUR,” “YOURS,” OR “YOURSELF,”) AS AN INDIVIDUAL OR THE ENTITY WHICH YOU REPRESENT. Hypercharge and You will be referred to herein as a “Party” and collectively as the “Parties.”
BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN AFFILIATE APPLICATION FORM THAT REFERENCES THIS AGREEMENT, OR (3) PARTICIPATING IN THE PROGRM, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM AND CONDITION, AND THAT YOU ARE AUTHORIZED TO BIND YOURSELF OR THE ENTITY YOU REPRESENT.
This Agreement contains the complete terms and conditions that apply to your participation in the Hypercharge Affiliate Program (the “Program“). The purpose of the Program is to reward you for making strategic introductions to qualified, high potential customers (“Qualified Introductions”).
In consideration of the mutual promises and obligations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Hypercharge and You hereby agree as follows:
1. Exclusivity.
a) During the term of this Agreement, you agree not to act, directly or indirectly, as an Affiliate for any competitors of Hypercharge or recommend products and services of third parties that competes with Hypercharge.
2. Affiliate Acceptance.
a) Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. If we do not notify you that you are accepted to participate in the Program within thirty (30) days from your application, your application is considered to be rejected.
b) If you are accepted to participate in the Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.
3. Affiliate Program.
a) Qualified Introductions. We will pay you a referral fee (“Referral Fee”) as set out in Schedule “A” of the application for each new Qualified Introduction that results in a New Business Transaction with a new customer (“New Customer”), provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. For the purpose of this section, “New Business Transaction” means a Qualified Introduction that leads to the signing of a new Order Form for either charging hardware, and/or charging software.
b) Submission of Introductions. For an introduction to be considered a Qualified Introduction: (i) you must submit your potential introduction to us for review; and (ii) the potential introduction must be submitted through email or other methods as communicated by us from time to time. Once you have submitted the potential introduction, we will review the eligibility of the potential introduction in accordance with the criteria set out in section 3(d). If the potential introduction meets the criteria set out in section 3(d), we will send you written confirmation that the potential introduction is accepted as a Qualified Introduction.
c) Eligibility. To be eligible for the Referral Fee: (i) a Qualified Introduction must be accepted and valid in accordance with section 3(d), (ii) you must make the introduction within 30 days after we have accepted the introduction as a Qualified Introduction in accordance with section 3(d); and (iii) a New Business Transaction must have occurred after you make the Qualified Introduction. You are not eligible to receive the Referral Fee or any other compensation from us if: (i) such compensation is disallowed or limited by applicable laws; (ii) the New Customer objects to or prohibits such compensation or excludes such compensation from its payments to us; (iii) the New Customer has paid or will pay such commissions, referral fees, or other compensation directly to you, or (iv) the Referral Fees has been obtained by fraudulent means, misuse of the Program.
d) Acceptance and Validity. A Qualified Introduction will be considered valid and accepted if, in our reasonable determination: (i) it is a New Customer, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept a Qualified Introduction in our reasonable discretion. If a Qualified Introduction does not lead to a New Business Transaction within six (6) months after the initial introduction, you will not be eligible for a Referral Fee payment, even if the Qualified Introduction leads to a New Business Transaction after the time period has expired.
e) Engagement with Prospects. Once you have made a Qualified Introduction, we may elect to engage with the prospect directly, regardless of whether or not the Qualified Introduction is valid. If a Qualified Introduction is not valid then we may choose to maintain the prospect in our database and we may choose to engage with such prospect. Any engagement between Hypercharge and a prospect will be at Hypercharge’s discretion.
4. Referral Fees
a) Subject to all terms of this Agreement, Hypercharge will pay you a Referral Fee as set out in Schedule “A”the application for: (i) Qualified Introductions that results in a direct sales of the chargers to the customer (“Direct Sales”); and (ii) Qualified Introductions that results in charge point operator sales where Hypercharge funds and owns the chargers (“Charge Point Operator Sales”).
b) Direct Sales. The Referral Fee for Direct Sales will be calculated as a percentage of the first year value of the sale as set out in Table 1 of Schedule “A” of the application after the Qualified Introduction that leads to New Business Transactions as set out in Section 3 of this Agreement. If the Qualified Introduction leads to additional Direct Sales, the additional Direct Sales will be included in the calculation of the Referral Fee for the first two years. For clarity, no additional fees will be paid after the first two years.
c) Charge Point Operator Sales. The Referral Fee for Charge Point Operator Sales will be calculated based on volume of ports for the first two years set out in Table 2 of Schedule “A” of the application after the Qualified Introduction that leads to New Business Transactions as set out in Section 3 of this Agreement. For clarity, no additional fees will be paid after the first two years.
d) The Affiliate shall be responsible for all taxes and other similar levies applicable to the Referral Fee pursuant to any law or regulation. The Affiliate shall report the commission to its taxation authorities as required by law. Hypercharge shall not be responsible for any taxes owed by you arising out of your relationship with Hypercharge as set forth in this Agreement.
5. Relationship of Parties. Nothing in this Agreement nor any acts of the Parties shall be construed, implied or deemed to create an agency, partnership, joint venture or employer and employee relationship between them. Neither this Agreement nor any of its provisions shall be considered or construed as a commitment or a legal, contractual or fiduciary obligation by either Party to (a) engage the other Party in any work, (b) participate with the other Party in any opportunity or transaction, (c) to enter into any contract or transaction with the other Party, or (d) to provide the other Party with any particular rights or opportunities in respect of any contracts or transactions.
6. Non-Competition and Non-Solicitation.
a) During the term of this Agreement and for a period of twelve (12) months following the termination of this Agreement for any reason, you agree that you will not, without prior written and informed consent of Hypercharge, serve as an Affiliate as contemplated under this Agreement, either directly or indirectly, for any business in Canada, which is competitive, in any way, with Hypercharge.
b) During the term of this Agreement and for a period of twelve (12) months following the termination of this Agreement for any reason, you agree that you will not directly or indirectly canvass, solicit, divert or take away customers or prospective customers from Hypercharge, or otherwise solicit, induce or encourage any customer to cease to engage the services of Hypercharge.
7. Modification. Hypercharge may modify any of the terms and conditions in this Agreement, including terminating this Agreement or the Program at any time at its sole discretion. Modifications may include, but are not limited to, changes in the scope, percent of commissionable fees, payment procedures, and the Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AS SET FORTH BELOW. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE NOTICE OF THE CHANGE OR NEW AGREEMENT WILL CONSTITUTE YOUR AGREEMENT TO THE CHANGES.
8. Terms and Termination
a) The term of this Agreement will begin upon your acceptance of the Agreement as indicated above and will end when terminated by either party. Either Hypercharge or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and you will immediately cease use of, and remove from your website or websites, all references to Hypercharge and all links to the Hypercharge’s website.
b) Hypercharge will, however, continue to pay you Referral Fees from Qualified Introductions made before termination.
9. Disclaimer. HYPERCHARGE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING HYPERCHARGE’S SERVICE OR PRODUCTS PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF HYPERCHARGE’S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
10. Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, HYPERCHARGE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF HYPERCHARGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL HYPERCHARGE’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL REFERRAL FEE PAYABLE TO YOU UNDER THIS AGREEMENT.
11. Representations, Warranties and Covenants. You represent, warrant and covenant that:
a) you have full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
b) you have sufficient right, title, and interest in and to the rights granted to Hypercharge in this Agreement;
c) you shall not make any representations or warranties regarding the products or services provided by Hypercharge; and
d) you shall not make or publicize any statements that are disparaging, slanderous, defamatory, libelous or derogatory of Hypercharge or that otherwise portray Hypercharge in a negative manner.
12. Indemnification. You hereby agree to indemnify and hold harmless Hypercharge, and its subsidiaries and Affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorney fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on any claim that our use of the Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, any misrepresentation of a representation or warranty or breach of a covenant and Agreement made by you herein, or any claim related to your website, including, without limitation, content therein not attributable to us.
13. Confidentiality. In connection with the activities contemplated by this Agreement, you may acquire confidential technical or business information of Hypercharge, which is not generally known to the public, including without limitation proposals, ideas or research related to possible new products or services; financial statements and other financial information; any reporting information required by the Agreement; and the terms of this Agreement and the relationship between the parties (collectively, “Confidential Information“). You agree not to disclose the Confidential Information or use the Confidential Information for your own benefit or for the benefit of any third party. Your obligations in this Section shall not apply to any information that you can prove was in the public domain at or subsequent to the time it was communicated to you through no fault of yours; was rightfully in your possession free of any obligation of confidence owed to Hypercharge at or subsequent to the time it was communicated to you by Hypercharge; was in response to a valid order by a court or other governmental body or was otherwise required by law. Upon the termination or expiration of this Agreement, you shall return upon Hypercharge’s request or otherwise destroy all Confidential Information of Hypercharge in your possession.
14. Miscellaneous.
a) You may not assign your rights or obligations under this Agreement to any party.
b) You may not create, publish, distribute, or permit any written or electronically transmitted publicity material (including without limitation, advertisements and press releases) that makes reference to Hypercharge without first submitting the material to Hypercharge and receiving its approval, authorization and consent in writing. You shall not issue any public statement(s) regarding the relationship with Hypercharge without the prior written approval of Hypercharge.
c) This Agreement shall be governed by and interpreted in accordance with the laws of the Province of British Columbia and the laws of Canada without regard to the conflicts of laws and principles thereof.
d) You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
e) This Agreement represents the entire Agreement between you, and us, and shall supersede all prior Agreements and communications of the parties, oral or written.
f) The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
g) Hypercharge reserves the right, at its full discretion, to disqualify any individual it suspects of undermining or manipulating the operation of the Program. Hypercharge may, at its sole discretion, cancel the Program. In the event of your non-compliance with any requirement stated herein, Hypercharge may withhold or reduce any payments due to you until resolution of all disputes.
h) If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.
15. General Conditions. YOU HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND AND HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO ACCEPT THIS AGREEMENT. YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.