Enphase Installer Network Program Agreement
Updated: May 13, 2020
1. Independent Contractors
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between You and Enphase, notwithstanding the use of the term “partner” in this Agreement or the Program Documentation. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. There are no third-party beneficiaries to this Agreement. Participant shall not make any proposals, promises, warranties, guarantees, or representations on Enphase’s behalf or in Enphase’s name.
2. Eligibility Criteria
Participation in the Program is by invitation only. If Enphase invites you to apply to participate in the Program, you may accept the invitation by enrolling as instructed by Enphase in your invitation. As part of the enrollment you much affirmatively agree to be bound by the terms of this Agreement. Once Enphase has confirmed your enrollment in writing you are a “Participant”. Program details are described below and in Program documentation made available by Enphase at https://enphase.com/en-us/installers/about-installer-network from time to time (collectively, “Program Documentation”).
3. Participation Tiers
Enphase will allow each Participant to participate in the Program at the Silver, Gold, or Platinum level (each an “EIN Tier”) based on the criteria set forth in the Program Documentation (the “Criteria”). In order to be, and remain, in a particular Tier and to receive the corresponding benefits (the “Benefits”), Participant must comply at all times with all of the Criteria applicable to such Tier. Enphase will conduct periodic reviews of Participant adherence to such Criteria and, based on the Participant’s performance and adherence to the Criteria, may change the Participant’s EIN Tier designation or may disqualify the Participant from participating in the Program at any time and for any reason. If a Participant believes it has been incorrectly classified or disqualified, or wishes to have Enphase re-evaluate the EIN Tier assignment so that Participant may be moved to a different EIN Tier, Participant may contact EIN@enphaseenergy.com and request a re-evaluation no more than two (2) times each calendar year.
4. Program Benefits
Participant will receive the Benefits corresponding to their assigned EIN Tier, all as set forth in the Program Documentation. Enphase may modify the Benefits from time to time in its sole discretion.
If a Participant is in an EIN Tier that requires periodic quality audits of Participant’s Enphase product installation sites, Participant agrees to cooperate with Enphase in coordinating a reasonable number of such audits and to use commercially reasonable efforts to assist Enphase (or a non-competing, independent third-party auditor selected by Enphase) in obtaining customer permission and access to such sites so that Enphase may conduct such inspection. All such quality inspections will be conducted at Enphase’s sole cost and expense. Participants at the Platinum EIN Tier agree to provide such financial information as may be reasonably requested by Enphase (or an independent third-party auditor retained by Enphase) no more than once each fiscal year so that Enphase may determine whether Participant is qualified to participate in the Program. Enphase will not share such confidential information with any third party (other than the independent third-party auditor, as applicable) and will maintain it in strict confidence. Each party will bear its own costs and expenses in connection with a financial audit hereunder.
6. Trademark License Grants
- License Grant from Enphase. Subject to the terms and conditions in this Agreement, Enphase hereby grants Participant a limited, non-exclusive, non-transferrable, non-sublicensable, royalty-free license to use the Enphase trademarks set forth in the Program Documentation (the “Enphase Marks”) in the United States solely in accordance with (i) the Benefits applicable to Participant’s Tier, and (ii) applicable trademark usage guidelines published by Enphase. Enphase Marks include: (A) the Enphase logo, and (B) the Platinum, Gold, and Silver EIN Tier logos (each an “EIN Tier Badge”). Enphase may terminate the foregoing trademark license if, in its reasonable discretion, Participant’s use of the Enphase Marks tarnishes, blurs or dilutes the quality associated with the Enphase Marks or the associated goodwill and such problem is not cured within 5 days of Enphase providing notice to Participant; alternatively, instead of terminating the license in total, Enphase may specify that certain of Participant’s uses may not contain the Enphase Marks. Title to and ownership of the Enphase Marks shall remain with Enphase. Participant shall not take any action inconsistent with Enphase’s ownership of the Marks, and any benefits accruing from use of such Marks shall automatically vest in Enphase. Participant shall not form any combination marks with Enphase’s Marks.
- License Grant from Participant. Subject to the terms and conditions of this Agreement, Participant hereby grants Enphase a limited, non-exclusive, non-transferrable, non-sublicensable, royalty-free license to use the Participant’s name and logos (the “Participant Marks”) for the purpose of identifying Participant as an installer of Enphase products. Participant may withdraw its approval of any use of the Participant’s Marks at any time in its sole discretion upon written notice to Enphase, which withdrawal shall be effective promptly but in no case more than thirty (30) days from the date of Participant’s notice sent in accordance with Section 16 (Notice) below, provided that no such withdrawal will require the recall of any previously published or distributed materials. Participant may terminate the foregoing trademark license if, in its reasonable discretion, Enphase’s use of the Participant Marks tarnishes, blurs or dilutes the quality associated with the Participant Marks or the associated goodwill and such problem is not cured within 5 days of Participant providing notice to Enphase; alternatively, instead of terminating the license in total, Participant may specify that certain of Enphase’s uses may not contain the Participant Marks. Title to and ownership of the Participant Marks shall remain with Participant. Enphase shall not take any action inconsistent with Participant’s ownership of the Marks, and any benefits accruing from use of such Marks shall automatically vest in Participant. Enphase shall not form any combination marks with Participant’s Marks.
7. Installer Locator
Enphase hosts a webpage located at https://installers.enphase.com/locator.html that allows users to locate Enphase product installers in their geographic area (the “Installer Locator”). Enphase will respond to queries on the Installer Locator by listing the names, contact information, and EIN Tier Badge for each Participant in the requested geographic area. Applicable Participants will be displayed in order of EIN Tier (Platinum listed first, then Gold, then Silver).
8. Leads Program
Enphase also hosts a webpage located at https://estimator.enphaseenergy.com/ that allows users to obtain a rough estimate of an end user’s solar system requirements (the “Enphase Estimator”). End Users may submit their contact information and agree to be contacted by Enphase or its network of installers (each such submission a “Lead”). If a Participant elects to participate in Enphase’s Leads Program, Participant must request to be enrolled in such program and must agree to the Leads Program Terms and Conditions. Once accepted into the Leads Program, Enphase will provide qualifying Leads to Participant in accordance with the Leads Program.
9. Term and Termination
This Agreement will commence on the date Installer agrees to be bound by this Agreement and, unless earlier terminated, will continue for a period of one year (the “Initial Term”). This Agreement will automatically renew for successive one-year periods (each a “Renewal Period” and together with the Initial Term the “Term”) unless a party provides the other party notice of non-renewal prior to the commencement of the applicable Renewal Period. Either party may terminate this Agreement at any time and for any reason, or no reason, by providing the other party with at least thirty (30) days written notice. Notwithstanding the foregoing, Enphase may terminate this Agreement immediately, upon notice, if Participant fails to meet the Program requirements.
If Participant in its discretion provides any suggestions, comments, or other feedback to Enphase concerning Enphase products (“Feedback”), Enphase shall be entitled to use Feedback for any purpose without restriction or remuneration of any kind with respect to Participant and/or its representatives.
11. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ENPHASE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE PROGRAM, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW INCLUDING WITH RESPECT TO THE PERFORMANCE, FUNCTIONALITY, QUALITY, BENEFITS OR AVAILABILITY OF ALL OF THE FOREGOING. CONTENT IS PROVIDED BY ENPHASE “AS IS,” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
12. LIMITATION OF LIABILITY
NOTHING IN THESE TERMS IS INTENDED TO LIMIT EITHER PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY'S NEGLIGENCE OR FOR FRAUD, FRAUDULENT MISSTATEMENT OR FRAUDULENT MISREPRESENTATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WHERE ARISING IN CONNECTION WITH MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL ENPHASE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF ENPHASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH THIS AGREEMENT.
13. Legal Compliance; Ethical Business
Participant will at all times comply with all applicable laws and regulations and will conduct its business in such manner as will reflect favorably on, and will not disparage, Enphase, Enphase products or services. Additionally, Participant will not engage in any deceptive, misleading, illegal or unethical business practice.
14. Cooperation in Disputes
Participant shall cooperate with Enphase regarding any inquiry, dispute or controversy in which Enphase may become involved and of which Participant may have knowledge. Such cooperation shall include disclosure of relevant documents and financial information, and interviews of Participant’s personnel. Such obligation shall continue after the expiration or termination of this Agreement.
Notices provided under this Agreement (i) by Enphase will be sent to the individual that Participant identifies in its Enphase Enlighten instance as the administrator of Participant’s account; and (ii) by Participant will be sent to firstname.lastname@example.org.
16. Governing Law; Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any conflicts of laws principles. Participant and Enphase consent to the exclusive jurisdiction of, and venue in, the state court of Santa Clara County, California, U.S.A., or the federal court of the Northern District of California, U.S.A., except nothing shall restrict a party from seeking relief to protect its intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Installer shall not assign or transfer this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Enphase. Any assignment in violation hereof shall be void. This Agreement constitutes the entire agreement between Enphase and Installer, and supersedes all previous communications, course of dealing representations and agreements, whether oral or written, between Installer and Enphase with respect to the subject matter hereof. No course of dealing or usage of trade may be invoked to modify this Agreement. The failure by Enphase to enforce at any time any of the provisions of this Agreement will in no way be construed as a waiver of such provisions. If any provision of this Agreement is unenforceable as written, the remainder of the Agreement will remain in effect and the unenforceable provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement.