Appendix 1
Enphase Leads Program Terms and Conditions
The following Enphase Leads Program Terms and Conditions (“Leads Terms”) apply to the Leads Program and are incorporated into the Enphase Installer Agreement by this reference. All references in this Appendix 1 to “Agreement” refer to the Agreement and these Leads Terms, collectively. Capitalized terms not otherwise defined in this Appendix 1 will have the meaning ascribed to them in the Enphase Installer Agreement. Participant may be required to electronically or physically sign this Agreement prior to receiving a Lead (defined below).
A. Leads Program Description:
1. Participant is in the business of installing Enphase microinverters, storage solutions and other Enphase products (collectively, “ Enphase Products”) in PV solar and/or storage systems owned by individual home-owners (each, an “End User”).
2. From time to time, Enphase Energy Inc. and its subsidiaries (“we”, “us”, “our” or “Enphase”) conducts marketing activities related to Enphase Products, which may include direct marketing of the Enphase Products to End Users, through the internet, the Enphase Enlighten™ platform, e-mail, SMS and/or any other authorized medium.
3. If, as a result of the aforementioned marketing activities, an End User expresses interest in purchasing Enphase Products (each such End User being a “Prospective End User”), Enphase may provide Participant such Prospective End User’s information, including but not limited to contact details, requirements for Enphase Products, and/or other potentially personal identifiable information (such collective Prospective End User information, a “Lead”).
4. Upon the receipt of a Lead from us, Participant agrees to fulfil the Prospective End User’s requirement(s) for Enphase Products, on terms agreed between Participant and the Prospective End User, and subject to this Agreement.
B. Lead Sharing and Exclusivity
1. Enphase may, from time to time, share Leads with Participant, which may include the Prospective End User’s requirements for Enphase Products.
2. Upon receiving a Lead from Enphase, Participant will be required to confirm its intent to Follow Up on the Lead by accepting the Lead within the time period indicated by Enphase, and thereafter promptly (and within nor more than five (5) business days) actually Follow Up on the Lead. “ Follow Up”, as used in this Agreement will mean contacting the Prospective End User identified in the Lead, and marketing and offering for sale Enphase Products. In the event that: (i) Participant does not Follow Up on a Lead within the aforementioned period; or (ii) Participant elects not to Follow up on a Lead (such Leads described in (i) and (ii) being a “Forfeited Lead(s)”), Participant expressly agrees that: (a) Participant will not retain the Forfeited Lead information from Participant’s systems, databases, and any other format used in storing the information either in hard or soft copy, and (b) Participant will not otherwise affirmatively contact such Forfeited Lead on any medium or in any manner whatsoever, regarding an energy management and/or storage solutions similar to the Enphase Products (“Competitor Products”), without the prior written consent of Enphase; provided, however, that Sections B(2) (a) and (b) will not require Installer to delete any information that Installer had in its possession prior to receiving the Forefeited Lead(s) from Enphase.
3. If in response to a Follow Up, a Prospective End User agrees to purchase Enphase Products, Participant will fulfil the requirements of such Prospective End User promptly by using Enphase Products . For the avoidance of doubt, nothing contained in this Agreement will permit or imply that Participant may fulfil the Prospective End User’s requirements under a Lead by using any Competitor Products, and violation of this Section 1.3 will be considered a material breach of this Agreement.
4. You acknowledge and agree that the restrictions in Section 1.2 and 1.3 above are necessary given the effort and resources employed by us in generating the Leads, and that Enphase is entering into this Agreement with Participant in reliance upon these restrictions, the aforementioned warranties and other remedies set forth herein, which form an essential basis of the bargain between Participant and us.
5. It will be Participant’s sole and exclusive responsibility to obtain all necessary licenses and/or permits and to comply with all codes, laws, rules and regulations applicable to installing and re-selling the Enphase Products to the Prospective End Users.
C. Additional Terms: The following additional terms below apply to Participant depending on: (a) whether the Prospective End User opts to purchase Enphase products; and/or (b) whether the Prospective End User is a User who already has Enphase Products installed at their site by an installer who is currently inactive (an “Orphaned System ”).
1. Storage solutions: Prior to Follow Up on Leads where the Prospective End Users have expressed interest in purchasing Enphase storage products, Participant will: (i) register for and complete the Ensemble training applicable to such products; (ii) once the training in (i) has been completed, educate the Prospective End Users about the benefits, value and availability of Enphase’s Ensemble solution, in a manner satisfactory to Enphase; and (iii) if the Prospective End User chooses to purchase Enphase’s Ensemble solution, procure the Ensemble solution from Enphase or its authorized distributors to satisfy the Prospective End User’s requirement.
2. Orphaned Systems: We may provide Participant with Leads for Orphaned Systems. Such Leads will include information regarding full configuration, including but not limited to the number of micros, system status and activation details. If Participant chooses to Follow Up on such Leads, Participant will be made the assigned installer for such Orphaned System, and the change in installer will be provided to the Prospective End User. Please note that Participant will not be liable for any workmanship warranty, or any existing system defects and the product warranty ownership of the systems will continue to be with Enphase. Notwithstanding the foregoing, all other terms with respect to the Leads and End Users will continue to apply with respect to Leads for Orphaned Systems.
D. Confidentiality.You agree to maintain the confidentiality of the Leads in perpetuity and not to disclose, or permit any third party or entity access to, the Leads without the prior written permission Enphase or the End User. You represent and warrant that the Leads will be used by such personnel as required, only in connection with the obligations provided hereunder, and will not be exploited by Participant or Participant’s permitted subcontractors for any internal, commercial or other purpose in any manner whatsoever. You recognize and acknowledge that any use or disclosure of the Leads in a manner inconsistent with the provisions of this Agreement will cause Enphase irreparable damage for which remedies at law may be inadequate. Accordingly, Enphase will have the right to seek an immediate injunction in respect of any breach of these confidentiality obligations without posting bond to obtain such relief.
E. Compliance with Privacy Laws. You will be solely responsible for compliance with all applicable statutes in processing the Personal Data of Leads provided by Enphase, including but not limited to the Privacy Laws related to any Personal Data of any Prospective End User that may be contained in the Leads. For the purposes of this Agreement : (i) “ Personal Data” means (a) “personal data”, “personal information” or “personally identifiable information” as defined under Privacy Laws; or (b) any information relating to an identified or identifiable natural person, household or device; (ii) “ Privacy Laws” means any applicable law or regulation or binding guidance issued by a governmental entity governing (a) the privacy, protection or security of Personal Data, including as relevant to the collection, storage, use, transfer, disclosure, sharing, destruction, or other processing (collectively, “Processing”) of Personal Data or (b) online behavioural advertising, call or electronic monitoring or recording, or any outbound calling, text messaging, telemarketing or email marketing, in force from time to time, including, without limitation, Directive 2002/58/EC, the General Data Protection Regulation 2016/679 (“GDPR”), the Federal Trade Commission Act, the Telephone Consumer Protection Act (“TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act, (“TCFAPA”), the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), the California Consumer Privacy Act of 2018 (“CCPA”) and any regulations promulgated thereunder, in each case, as amended from time to time, and/or any equivalent national, state or provincial laws and regulations which otherwise regulate Personal Data; (iii) “Data Subject Request” means any request made by a Data Subject to exercise his/her rights under applicable Privacy Laws; (iv) “Regulator” means any regulatory, governmental or supervisory authority with authority over all or any part of the Processing of Personal Data; (v) “Data Controller” means the entity which, alone or jointly with others, determines the purposes and means of Processing of Personal Data; (vi) “Data Processor” means the entity which Processes Personal Data on a Data Controller’s behalf; and (vii) “Data Subject” means the individual to whom Personal Data relates.
F. Data Processing.
1. You acknowledge and agree that with respect to any Processing undertaken by or on behalf of Participant, of any Personal Data of Prospective End Users contained in the Leads, to the extent that such Personal Data is governed by or subject to the Privacy Laws (the “ Relevant Personal Data”), Participant is a Data Controller. Enphase acknowledges and agrees that with respect to its Processing of Relevant Personal Data, Enphase is a Data Controller. You agree that Participant and Enphase are independent Data Controllers in respect of the Relevant Personal Data and each may independently determine the purposes and means of its Processing of the Relevant Personal Data. You agree that Participant and Enphase do not operate as joint controllers under applicable Privacy Laws. You agree that Enphase will have no obligations or liability with respect to Participant’s Processing of Personal Data as a Data Controller or any Processing of Personal Data by Participant not agreed to under or permitted by this Agreement. You agree to comply with the applicable Privacy Laws (including terms applicable to Participant as a Data Controller), in connection with Processing the Relevant Personal Data by Participant or on Participant’s behalf.
2. You represent and warrant that Participant has implemented and will maintain appropriate technical and organizational measures designed to ensure and to enable Participant to demonstrate that Participant’s Processing of the Relevant Personal Data is performed with adequate safeguards for the protection of the Relevant Personal Data and against a Data Breach (as defined within this Agreement). Additionally, Participant has adopted, implemented and will maintain policies, procedures and systems to respond to Participant’s legal obligations and the needs of the Data Subject whose Relevant Personal Data is being Processed by Participant (“ Relevant Data Subjects”), including the provision for Relevant Data Subjects to unsubscribe/opt-out from marketing communications, and will update Participant’s records accordingly.
3. You acknowledge and agree that (a) Participant will Process the Personal Data in compliance with all applicable laws (including Privacy Laws), including, without limitation, (i) establishing a valid legal basis for Processing the Personal Data under applicable Privacy Laws; (ii) taking all reasonable steps to maintain the accuracy, integrity, availability, privacy and security of the Personal Data; and (iii) transferring Personal Data out of the European Economic Area or Switzerland only pursuant to the standard data protection clauses for the transfer of Personal Data to controllers established in third countries that do not ensure an adequate level of data protection, as described in Article 46 of the GDPR or another solution that enables the lawful transfer of Personal Data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield) if Privacy Laws restrict such transfer; (b) if required under laws applicable to communications with the Relevant Data Subject in the jurisdiction where the Relevant Data Subject is located, Participant will provide any necessary notice and obtain any necessary consent of the Relevant Data Subjects for Participant’s intended use of the Relevant Personal Data; (c) Participant will cause Participant’s personnel, agents and subcontractors, to refrain from using the Relevant Personal Data to contact Relevant Data Subjects who have unsubscribed or opted-out from communications from Participant for any purpose, including, without limitation, direct marketing communications; (d) Participant will review and comply with any suppression lists, Data Subject preferences and/or notices maintained and provided by Enphase or included in the Product before sending any communications to any Relevant Data Subject; and (e) Participant will provide Enphase with timely and reasonable assistance and information regarding Participant’s Processing of Relevant Personal Data as may be required for Enphase to comply or demonstrate compliance with applicable Privacy Laws.
4. You will:
a. Reasonably cooperate with Enphase to enable Enphase to fulfil its obligations, as applicable, under Privacy Laws, including, without limitation,
· To the extent Participant receives a request from a Data Subject to exercise any applicable rights (including requests for access, correction, erasure, objection or portability) under Privacy Laws with respect to Relevant Personal Data, Participant will respond to the extent required under Privacy Laws and Participant will reasonably cooperate with Enphase to assist it should it need to respond to a request.
· To the extent Enphase receives a request from a Regulator with respect to the Relevant Personal Data for which Participant is also a Data Controller, Participant will reasonably cooperate with Enphase’s efforts to respond to such a request.
· To the extent Enphase needs to conduct a data protection impact assessment (“DPIA”), including prior consultation with a supervisory authority, Participant will reasonably cooperate with Enphase’s conducting the DPIA to assist with its completion.
· To the extent Enphase is relying upon consent as the lawful basis for Processing, Participant will reasonably cooperate with Enphase’s efforts to comply with the requirements for obtaining and demonstrating valid consent.
b. Make available to Enphase, all information and records for which Enphase or a governmental entity reasonably requests with respect to Participant’s Processing of Relevant Personal Data, including reasonable cooperation with any required audits.
c. Maintain reasonably detailed records of (a) Participant’s Processing activities; (b) Participant’s compliance with this Agreement; and (c) Data Breaches.
d. To the extent Participant engages a third-party Data Processor in connection with Participant’s Processing the Relevant Personal Data, prior to permitting such third party to process the Relevant Personal Data, Participant will enter into a contract with the third party that complies with the requirements of applicable Privacy Laws (such as the GDPR) and imposes on the third party substantially similar obligations as those to which Participant is subject under this Agreement.
e. provide all information and assistance required by Enphase in complying with the Privacy Laws, including but not limited to responses by Enphase to any Data Breaches (as defined below) or security breaches as prescribed by Privacy Laws.
G. Data Breach. If Participant becomes aware that Relevant Personal Data held by Participant under or in relation to the Program is, or is suspected to have been subject to any unauthorised access, acquisition or disclosure, or lost in circumstances where unauthorised access to, acquisition of, or disclosure of Relevant Personal Data is likely to occur or “personal data breach” as defined by the GDPR (each, a “ Data Breach”) Participant will:
1. notify Enphase in writing as soon as Participant becomes aware of the Data Breach (and within twenty-four (24) hours) before making any other public notifications, in relation to such Data Breach;
2. immediately take all necessary steps to (a) comply with Participant’s obligations under the Privacy Laws in relation to that event, including remedy such Data Breach; (b) prevent or mitigate any consequences, including any serious harm (as referred to in the Privacy laws) to any affected individuals; and (c) provide Enphase with all necessary information and documents requested by Enphase about the event;
3. as soon as reasonably practicable, (a) undertake an investigation to determine the extent to which the Data Breach concerns any Relevant Personal Data covered by the Program, including the conduct of an assessment of the suspected eligible Data Breach; and (b) provide the results of the investigation and assessment to Enphase in writing, including the details of, and the circumstances giving rise to, the Data Breach and any additional information requested by Enphase in relation to the Data Breach; and
4. comply with all directions of Enphase in relation to the Data Breach in respect of Relevant Personal Data covered by this Agreement, including, without limitation: (a) at Enphase’s request, fulfill any notification obligations Enphase may have under Privacy Laws as a result of the Data Breach that Participant suffers related to Relevant Personal Data; and (b) refrain from providing any notice until Enphase agrees in writing to such notice.
H. Indemnification. articipant hereby agrees to defend, indemnify, and hold Enphase, its parents, affiliates, subsidiaries and their officers, directors, agents, and employees harmless against all costs, expenses, regulatory fines, claims, demands, actions, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Enphase based on or arising from (a) Participant’s performance and participation in the Program; (b) Participant negligence or wilful misconduct; or (c) any breach or inaccuracy of any covenant, representation or warranty by Participant set forth in this Agreement.
I. Liability. Participant will be responsible for all civil liability (whether to any relevant governmental entity or to any other third party) arising from or in connection with either (a) a breach of Participant’s duties under this Agreement; (b) Participant’s Processing of Personal Data related to this Agreement; and (c) Participant’s negligence or willful misconduct.
J. Termination. Upon termination of the Agreement or Participant’s participation in the Program for any reason, Participant agrees to: (i) immediately discontinue using the Leads and return to Enphase all copies of any Leads received from Enphase; and (ii) permanently delete all information relating to the Leads and or the Prospective End Users, from Participant’s systems and certify such deletion to Enphase. Notwithstanding termination of this Program, Participant’s obligations under Sections 3,4,5 and 6 of these Terms will continue in perpetuity.
