Referral Terms and Conditions

Non-Employee Referral Program Terms and Conditions

Version 1.0 (release date: June 10, 2022)

These Non-Employee Referral Program Terms and Conditions (this “Agreement”) are made and entered into between Power Home Solar LLC d/b/a Pink Energy (“Company”) and the person who enters into (or otherwise accepts or consents to) this Agreement with Company (“Referral Source”). Company and Referral Source are each referred to as a “Party” and together as the “Parties”.

By clicking on the “Agree”, “Submit” or any equivalent button consenting to this Agreement or by otherwise participating in (or continuing to participate in) Company’s Non-Employee Referral Program (the “Referral Program”) (the foregoing referred to as “Contract Acceptance”), this Agreement becomes a legally binding contract as of the first date of Contract Acceptance (the “Effective Date”).

Upon Contract Acceptance, Referral Source agrees to resolve disputes with Company through binding bi-lateral arbitration (and with very limited exceptions, not in court), and Referral Source waives any right to participate in class actions, all as detailed in the “Dispute Resolution” section below.

In consideration of the foregoing, the mutual covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties agree as follows:

1. Eligibility Requirements.
   • Referral Source Eligibility. Referral Source must be (and represents and warrants to Company that he/she is) a legal resident of one of the 50 U.S. States or the District of Columbia, who (1) is 18 years of age or older, (2) has the legal right to provide to, collect for, or otherwise share with Company the personal contact information (i.e., name, email address, phone number, zip code, etc.) of one or more potential customers Referral Source has a pre-existing relationship with (such as friends, family members, and colleagues) and who Referral Source reasonably believes may be interested in Company’s products and/or services (each, a “Referred Lead”), (3) either independently or through a Company authorized representative, registered to participate in the Referral Program through means approved by Company (such as creation of any Company-sponsored online referral account), and (4) has consented to this Agreement. While Company may offer referral opportunities and rewards to Company employees (in writing only), Company employees (as determined in Company’s sole discretion) are not eligible to participate in the Referral Program.
   • Referred Lead Eligibility. In order to be eligible, a Referred Lead must (1) live within a state or territory that Company services, (2) be 18 years of age or older, (3) own, or legally be able to act on behalf of the owner of, a home, residence, property or other structure suitable for the installation of a solar photovoltaic system (a “Solar System”), as reasonably determined by Company, (4) not be an existing customer of Company or a resident of a household that is already a customer of Company, and (5) not have previously requested information from Company about its products and/or services or have been identified to or by Company as a lead or potential customer within the ninety (90) days prior to the Lead Submission (as defined below). Eligibility decisions of Referred Leads shall be made in Company’s sole and absolute discretion and shall be conclusive and binding.
2. Referred Lead Submission Requirements. In order for Referral Source to be entitled to a Referred Customer Reward (as defined below) relating to a Qualified Referred Customer (as defined below), the Referred Lead must voluntarily submit their personal information to Company (including prior express written consent to be contacted by Company) through an approved Referred Lead tracking system implemented and designated by Company (the “Lead Tracking System”, and the proper submission of a Referred Lead through the Lead Tracking System is a “Lead Submission”), which Lead Tracking System may include a Company-branded landing page created by Company, a unique identifier (such as a referral code) assigned to Referral Source, a Company mobile application, or other similar tracking system or systems that may be implemented, designated, and approved by Company from time to time. Upon Lead Submission, Company shall review such Referred Lead submission and determine, in its sole and absolute discretion, whether or not to pursue the Referred Lead.
3. Qualified Referred Customer Reward.
   • Reward Amount. Subject to compliance with this Agreement and the Referral Program, a Referral Source will be eligible to receive compensation in the total amount of $2,200 (the “Referred Customer Reward”) for each Referred Lead who (1) submits their personal contact information to Company through the Lead Tracking System as a direct result of Referral Source’s efforts and (2) enters into a duly executed written contract (in form and substance approved by Company in its absolute discretion) for the sale and installation of a Solar System within sixty (60) days of a Lead Submission (a “Qualified Referred Customer”).
   • Reward Payment Timing. The Referred Customer Reward for a Qualified Referred Customer shall be payable to Referral Source as follows: (1) $1,000 will be paid within eight (8) weeks of completed installation of a Solar System for a Qualified Referred Customer (as determined in Company’s sole discretion), and (2) $50 per month will be paid each month thereafter for twenty-four (24) months.
   • Bad Contract Set-Off. In the event of a cancellation, termination, return or a refund with respect to a Qualified Referred Customer that Referral Source received any Referred Customer Reward (“Bad Contract(s)”), then Referral Source agrees to (and shall) immediately return to Company any Referred Customer Reward received on such Bad Contract. Referral Source further agrees that Company shall be permitted to offset (and reduce) against any amounts due or owing to Referral Source hereunder with respect to any Bad Contract. This remedy shall be in addition to all other rights and remedies available to Company, all of which shall be cumulative.
4. Restrictions; Reservation of Rights.
   • Referral Source shall not (1) directly or indirectly cause a Referred Lead to be submitted through a Lead Tracking System more than one time; (2) in any way submit (or cause to be submitted) (i) fake or fraudulent Referred Leads, (ii) Referred Leads that are not submitted directly by the Referred Lead, or (iii) Referred Leads purchased, licensed, leased or otherwise obtained through means other than a pre-existing personal relationship between Referral Source and a Referred Lead; (3), directly or indirectly, circumvent, interfere with, alter, destroy, corrupt, manipulate or otherwise disrupt the Lead Tracking Systems in any way; (4) violate applicable Federal or State law; (5) infringe the intellectual property rights of Company or any third parties; (6) stalk, harass, or harm another individual; (7) collect or store personal data about other persons (including Referred Leads) without their knowledge or consent; (8) impersonate any person, or otherwise misrepresent Referral Source’s identity; (9) interfere with, disrupt or violate this Agreement, or Company’s servers or networks connected to the Referral Program; (10) attempt to gain unauthorized access to the Referral Program, or to other accounts, computer systems or networks connected to the Referral Program; (11) transmit any file that contains viruses, worms, Trojan horses, or any other contaminating destructive features; or (12) use the Referral Program to conduct any activity or solicit the performance of any illegal activity or other activity that infringes or otherwise violates the rights of others.
   • If Referral Source provides a unique tracking link or code assigned to Referral Source by Company (an “Assigned Code”) to a Referred Lead by email, text or other communication, the email, text, or other communication must be created and distributed by Referral Source in a personal manner that is appropriate and customary for communications with friends, colleagues, and family members. Bulk distribution, distribution to strangers, or any other promotion of an Assigned Code in a manner that would constitute or appear to constitute unsolicited commercial communications, telemarketing, or “spam” (as determined by Company) is expressly prohibited and may be grounds for immediate termination by Company of Referral Source’s participation in the Referral Program, termination of this Agreement, and/or deactivation of any Assigned Code.
   • This Agreement does not grant Referral Source any right, title, or interest in Company’s trademarks, service marks, trade names, or any other intellectual property rights of Company (collectively, the “Company IP”), including, without limitation, Company’s products and/or services. Referral Source shall not acquire any rights in or to the Company IP, including, without limitation, Company’s products or services, and/or any goodwill associated therewith, whether now known or hereinafter created.
5. Representations and Warranties. Referral Source represents and warrants that: (1) Referral Source will only provide, collect, or otherwise request personal contact information, including name, email address, and telephone number, of friends, family members or colleagues with whom Referral Source has a prior existing personal relationship; (2) Referral Source shall not provide, collect, or otherwise request the telephone number of any telephone subscriber that is younger than 18 years old; (3) Referral Source has express permission from the Referred Lead to provide, collect, or otherwise request his or her email address and telephone number; and (4) the Referred Lead has provided express consent to be contacted by Referral Source (or, to the extent applicable, Company) for purposes of the offer, marketing, solicitation, and sale of Company’s products and services.
6. Disclaimers; Limitation of Liability.
   • COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY REFERRED CUSTOMER REWARD OR ANY REFERRAL SOURCE’S OR REFERRED LEAD’S PARTICIPATION IN THE REFERRAL PROGRAM, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. ALL REFERRED CUSTOMER REWARDS ARE PROVIDED “AS-IS.” NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR AFFILIATES (THE “COMPANY PARTIES”) SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE, COST, OR INJURY THAT ARISES FROM OR RELATES TO PARTICIPATION IN THE REFERRAL PROGRAM, THIS AGREEMENT, OR USE OF ANY REFERRED CUSTOMER REWARD, INCLUDING BUT NOT LIMITED TO: (I) LATE, LOST, DELAYED, DAMAGED, MISDIRECTED, INCOMPLETE, OR UNINTELLIGIBLE ENTRIES; (II) TELEPHONE, ELECTRONIC, HARDWARE OR SOFTWARE PROGRAM, NETWORK, INTERNET, OR COMPUTER MALFUNCTIONS, FAILURES, VIRUSES OR DIFFICULTIES OF ANY KIND; (III) FAILED, INCOMPLETE, GARBLED, OR DELAYED COMPUTER TRANSMISSIONS; (IV) THE USE OR DOWNLOADING OF ANY SOFTWARE OR MATERIAL IN CONNECTION WITH THE REFERRAL PROGRAM; (V) TYPOGRAPHICAL OR OTHER ERROR IN THE PRINTING OF THE REFERRAL PROGRAM OR ADMINISTRATION OF THE REFERRAL PROGRAM; (VI) ANY OTHER CONDITION THAT MAY CAUSE THE REFERRAL PROGRAM TO BE DISRUPTED OR CORRUPTED; AND (VII) ANY PERSONAL INJURY, DEATH, OR DAMAGE TO PROPERTY THAT MAY RESULT FROM RECEIPT OR USE OF A REFERRED CUSTOMER REWARD OR PARTICIPATION IN THE REFERRAL PROGRAM.
   • IN NO EVENT SHALL COMPANY OR THE COMPANY PARTIES BE LIABLE TO REFERRAL SOURCE, REFERRED LEAD, OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES OR CERTAIN LIMITATIONS OF LIABILITY, THEREFORE, IN SUCH CIRCUMSTANCES AND JURISDICTIONS ONLY, CERTAIN OF THE FOREGOING DISCLAIMERS OR LIMITATIONS MAY NOT APPLY.
   • BY PARTICIPATING IN THE REFERRAL PROGRAM, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REFERRAL SOURCE RELEASES AND AGREES TO HOLD HARMLESS COMPANY AND THE COMPANY PARTIES FROM ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THOSE RELATED TO PERSONAL INJURY, DEATH, DAMAGE TO PROPERTY, INFRINGEMENT OF PROPRIETARY RIGHTS, RIGHTS OF PUBLICITY OR PRIVACY OR DEFAMATION) ARISING OUT OF OR IN CONNECTION WITH: (I) ENTERING THE REFERRAL PROGRAM; (II) ACCEPTANCE OR USE OF ANY REFERRED CUSTOMER REWARD; AND/OR (III) OTHERWISE ARISING OUT OF OR RELATING TO THE REFERRAL PROGRAM OR THIS AGREEMENT.
7. Indemnification. Referral Source shall indemnify, hold harmless and defend Company from and against any actual, threatened, or alleged loss, liability, obligation, damage, penalty, fine, cost, or expense (including without limitation, attorneys’ fees and expenses) resulting from or relating to any (i) misrepresentation by Referral Source; (ii) breach of any representation and warranty by Referral Source or of this Agreement; or (iii) violation of the Telephone Consumer Protection Act (as amended), the Telemarketing Sales Rule (as amended), the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 (as amended), or any of their state law equivalents resulting from or relating to the acts or omissions of Referral Source. Company shall have the right to choose defense counsel with respect to any such alleged, actual or threaten claim.
8. Dispute Resolution.
   • Any dispute or claim Referral Source has (or may have) arising out of or relating in any way to the Referral Program or this Agreement will be resolved by binding bi-lateral arbitration, rather than in court, except that Referral Source may assert claims in small claims court if such claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
   • BY AGREEING TO ARBITRATION, REFERRAL SOURCE UNDERSTANDS AND AGREES THAT REFERRAL SOURCE IS WAIVING REFERRAL SOURCE’S RIGHT TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, TO SETTLE ANY DISPUTES OR CLAIMS. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY. ALTHOUGH REVIEW IS LIMITED, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS WOULD BE AVAILABLE IN COURT, AND MUST ENFORCE THE SAME LIMITATIONS STATED IN THIS AGREEMENT AS A COURT WOULD.
   • To begin an arbitration proceeding, Referral Source must send a demand to the American Arbitration Association (AAA) describing Referral Source’s claim and serve a copy of the demand on Company at Power Home Solar LLC d/b/a Pink Energy, Attn: Legal Department, 8711 University E. Dr., Charlotte, NC 28213. The arbitration will be conducted by the AAA under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules and the form for filing an arbitration claim are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The Parties shall split any AAA fees equally unless the arbitrator determines Referral Source’s claims are frivolous (in which case, Referral Source shall be responsible for all of the AAA fees). Each Party shall be responsible for their own attorney’s fees. Referral Source may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where Referral Source lives or at another mutually agreed upon location. The arbitration shall be confidential.
   • Referral Source agrees that any dispute resolution proceedings of any nature or in any forum will be conducted only on an individual basis and not in a class, consolidated or representative action. This means that Referral Source may not purport to act on behalf of a class or any other person. Likewise, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
9. Modifications to Referral Program and this Agreement. Company reserves the right to, in its sole discretion: (i) modify or amend this Agreement at any time and without advance notice to Referral Source, and continued participation in the Referral Program by Referral Source is considered acceptance of this Agreement as it may be amended or modified from time to time; (ii) change, cancel, terminate, suspend or modify any aspect of the Referral Program (or this Agreement) without advance notice; and/or (iii) disqualify or suspend Referral Source at any time from participation in the Referral Program for any actual or threatened violation of this Agreement. Any modification, amendment, change, suspension, or termination of (or to) this Agreement shall be effective as of the date this Agreement (as updated) is first posted to Company’s website, and Referral Source’s continued participation in the Referral Program shall serve as consent and acceptance of any such changes. No amendment or modification of this Agreement will be binding against Company unless in writing and signed by a duly authorized representative of Company or posted to Company’s website by a duly authorized representative of Company.
10. Applicable Law. This Agreement, and Referral Source’s participation in the Referral Program, shall be construed and enforced in accordance with and governed by the laws of the State of North Carolina (without giving effect to any conflicts or choice of laws or provisions that would cause the application of the domestic substantive laws of any other jurisdiction).
11. Miscellaneous. This Agreement constitutes the entire agreement between Company and Referral Source relating to the Referral Program (and the subject matter hereof) and supersedes all previous oral or written agreements between the Parties regarding the Referral Program (and the subject matter hereof). No waiver of any provision of this Agreement is binding against Company unless it is in writing and signed by Company. No failure to exercise, and no delay in exercising, any right or remedy by Company under this Agreement will be deemed to be a waiver by Company of that right or remedy. No waiver of any breach of any provision of this Agreement by Company will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision. Company may assign this Agreement at any time (without notice to, or consent of, Referral Source) to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of Company (or its assets) to another entity. Referral Source may not assign, transfer, delegate, or sublicense this Agreement to anyone else and any attempt to do so in violation of this sentence shall be null and void. If any part of this Agreement shall be determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction or by any other legal body having jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect.
12. Tax Consequences. A Referred Customer Reward may be taxable, depending on the value of the item and the federal, state, and local tax laws applicable to Referral Source. Company does not offer tax advice and Referral Source should consult with their tax professional for any questions. Referral Source is solely responsible for reporting such items on their tax returns and paying any associated tax liability. Any amounts paid pursuant to the Referral Program will be construed as non-employee compensation to Referral Source, subject to any applicable tax or other reporting and may be contingent upon Company’s prior receipt of a completed Form W-9 from Referral Source.
13. Privacy Policy. Subject to this Agreement, Referral Source’s information submitted pursuant to the Referral Program or this Agreement will be collected, used, and/or shared in accordance with Company’s Privacy Policy (then-in-effect), which can be found here.