Affiliate Program Terms of Service
AFFILIATE TERMS & CONDITIONS
THE AGREEMENT: This Affiliate Marketer Agreement (hereinafter called the “Agreement”) is provided by the following organization, hereinafter referred to as “Company”: Different Energies LLC. Our primary website is https://differentenergies.com/. The Agreement is a legal document between you and the Company that describes the affiliate relationship we are entering into. This Agreement covers your responsibilities as an affiliate and our responsibilities to you.
1) DEFINITIONS
The parties referred to in this Agreement shall be defined as follows:
Company, Us, We: As we describe above, we’ll be referred to as the Company. Us, we, our, ours and other first-person pronouns will also refer to the Company, as well as all affiliates, divisions, subsidiaries, employees or legal agents of the Company.
You, the Affiliate: You will be referred to as the “Affiliate.” You’ll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours.
Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as “Parties” or individually as “Party.”
Affiliate Marketer Program: The program we’ve set up for our affiliates as described in this Agreement.
Website: The primary website we’ve noted above will be referred to as Website.
2) ASSENT & ACCEPTANCE
By agreeing to our Affiliate Marketer Program, you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please do not sign up for the Affiliate Program. This Agreement specifically incorporates by reference any Terms and Conditions, Privacy Policies, End-User License Agreements, or other legal documents which we may have on our website.
3) AGE RESTRICTION
You must be at least 18 (eighteen) years of age and a US resident to join our Affiliate Marketer Program. By signing this Agreement to our Affiliate Marketer Program, you represent and warrant that you are at least 18 years of age, are a US resident that is legally authorized to work in the US and can legally agree to this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age or legal status.
4) PROGRAM SIGN-UP
In order to join our Affiliate Marketer Program, you will first be asked to submit an Affiliate Application by registering a login through our portal.
Affiliate Marketer Program
After your acceptance in the Affiliate Marketer Program and execution of this Agreement, we will ensure your account is properly set up.
Please be advised the below is a general description of the Affiliate Marketer Program. Everything contained in this subsection is subject to the specific terms and conditions throughout the rest of this Agreement.
We will provide you with a specific link or links which correspond to certain products we are offering for sale (collectively, the “Link”). The Link will be keyed to your identity and will send online users to the Company’s website or websites.
You hereby agree to fully cooperate with us regarding the Link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Link at all times. We may modify the specific link or links and will notify you if we do so.
You agree to only use links which are provided by us and to display the Link prominently on your website (together with any associated social media pages and non-spam emails), as described in your Affiliate Application (collectively, the “Affiliate Site”).
Each time a user clicks through the Link posted on the Affiliate Site, signs up for and completes a Company accepted sale, receives their permits, and/or installs the product or service, you will be eligible to receive compensation for the referral based on the offers outlined in the offer portal. All sales are tracked using the visitor’s IP Address and the use of cookies.
In the event that multiple cookies from multiple active affiliates are present at the time of a purchase, the original or older cookie shall prevail in determining the commissionable Affiliate.
All Affiliate payments are subject to setoffs or claw backs in case of cancellations.
1. SPECIFIC TERMS APPLICABLE
Processing and fulfillment of customer orders will be our responsibility. We will also provide timely data regarding your affiliate account with us to you.
As described above, in order to be eligible for payout, affiliate referrals are defined as a homeowner that signs a solar agreement with Different Energies LLC and completes a Company accepted site assessment with Different Energies.
2. PAYOUT INFORMATION
Affiliate will be eligible to receive payouts following completed site milestones once the Company has received all requested tax and payment information from the Affiliate and Company provides activation notice to Affiliate.
Company shall not withhold any taxes from the payouts made to Affiliate under the terms of this Agreement. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement.
The Company will make payouts to Affiliate using the method and process identified within the affiliate partner portal. All pending and future payouts may be adjusted or offset by previous payouts that have been paid to Affiliate for purchases that have since resulted in a refund to or chargeback by any customer referred by Affiliate.
We explicitly reserve the right to change the payout process and procedure in our sole and exclusive discretion. If we do so, you will be notified.
For any disputes as to payout, the Company must be notified within thirty (30) days of your receipt of the payout. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty days of payout will not be addressed.
3. REPORTS
Affiliate will have access to an affiliate portal account which provides direct reporting access into referral and payout totals.
4. TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when Affiliate is accepted by Company into the Affiliate Marketer Program by receiving a login. It can be terminated by either Party at any time with or without cause.
You may only earn payouts as long as you are an Affiliate in good standing during the term. If you terminate this Agreement with us, you will receive any eligible payouts earned prior to the date of termination. Any earnings that are ineligible for payout prior to the date of termination will be forfeit.
If you fail to follow the terms of this Agreement or any other legal terms we have posted anywhere on our website or websites, you forfeit all rights, including the right to any unpaid earnings.
We specifically reserve the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
Upon termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
4b. Opting-Out or Unsubscribing
By choosing to opt out or unsubscribe from the Sparx affiliate program, you will forfeit your eligibility to receive any future affiliate earnings, including any points accrued for free merchandise. This action is considered final and cannot be reversed once processed.
If you unsubscribe, all earnings from direct and indirect referrals, as well as any pending payouts, will be void. Any points you have accumulated toward free Sparx merchandise or rewards will also be forfeited, and you will no longer be able to participate in future promotional opportunities related to the program.
To avoid losing your earnings and points, please carefully consider your decision before opting out or unsubscribing. We value your participation and want to ensure you continue to benefit from all that the Sparx program offers.
5. INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company (“Company IP”).
Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable, revocable license to access our websites in conjunction with the Affiliate Marketer Program and use the Company IP solely and exclusively in conjunction with identifying our company and brand on the Affiliate Site to refer customers using the Affiliate Links we provide. You may not modify the Company IP in any way and you are only permitted to use the Company IP if you are an Affiliate in good standing with us.
We may revoke this license at any time and if we find that you are using the Company IP in any manner not contemplated by this Agreement, we reserve the right to terminate this Agreement.
Other than as provided herein, you are not permitted to use any of the Company IP or any confusingly similar variation of the Company IP without our express prior written permission. This includes a restriction on using the Company IP in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
Please be advised that your unauthorized use of any Company IP shall constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in federal court. You may be obligated to pay monetary damages or legal fees and costs.
You hereby provide us a non-exclusive license to use your name, trademarks and service marks if applicable and other business intellectual property to advertise our Affiliate Marketer Program.
6. MODIFICATION & VARIATION
The Company may, from time to time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon notification and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms of this Agreement, we will let you know via electronic means, which may include an email. If you don’t agree to the update or replacement, you can choose to terminate this Agreement as described below.
To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
7. RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.
8. ACCEPTABLE USE
You agree not to use the Affiliate Marketer Program or our Company for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Marketer Program in any way that could damage our websites, products, services, or the general business and reputation of the Company. Determination of any unacceptable act or action by the Affiliate will be in the sole discretion of the Company.
You further agree not to use the Affiliate Marketer Program:
- To harass, abuse, or threaten others or otherwise violate any person’s legal rights;
- To violate any intellectual property rights of the Company or any third party;
- To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
- To perpetrate any fraud;
- To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
- To publish or distribute any obscene or defamatory material;
- To publish or distribute any material that incites violence, hate, or discrimination towards any group;
- To unlawfully gather information about others.
9. AFFILIATE OBLIGATIONS & FTC COMPLIANCE
You are responsible for ensuring operation and maintenance of the Affiliate Marketer Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Affiliate Marketer Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
We may monitor your account, as well as clicks and/or purchases coming through your account. If we determine you are not in compliance with any of these the terms of this Agreement, we have the right to immediately terminate your participation in the Affiliate Marketer Program.
We require all of our Affiliates to comply with all applicable statutes, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandated. The Federal Trade Commission requires that affiliate relationships, such as the relationship between you and the Company, be disclosed to consumers.
We recommend that you seek independent legal counsel to advise you of our obligations to disclose in this manner.
We require all our Affiliates to comply with the US Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements which may apply.
We also require you to comply with any and all applicable data privacy and security laws and regulations, including all of those which may impact your country of residence or your visitors. Such regulations include, but are not limited to, any applicable laws in the United States or the General Data Protection Regulation of the European Union. We also require that you implement adequate organizational and technical measures to ensure an appropriate level of security for the data that you process. Further, you hereby agree to comply with any requests which we may make to you regarding compliance with the General Data Protection Regulation or requests which you may receive from data subjects.
If we find you are not in compliance with any of the requirements of this sub-part, we may terminate our relationship with you at our sole and exclusive discretion.
10. REVERSE ENGINEERING & SECURITY
You agree not to undertake any of the following actions:
Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of our websites or services;
Violate the security of any of our websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
11. DATA LOSS
The Company does not accept responsibility for the security of your account or content. You agree that your participation in the Affiliate Marketer Program is at your own risk.
12. INDEMNIFICATION
You agree to defend and indemnify the Company and any of its agents (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable attorney’s fees, which may arise from or relate to your use or misuse of the Affiliate Marketer Program, your breach of this Agreement, or your conduct or actions. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense, if the Company wishes.
13. SPAM POLICY
You are strictly prohibited from using the Affiliate Marketer Program for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails to lists, groups or contacts that you do not have permission to send to.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties with respect to the Affiliate Marketer Program. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral and is governed by the laws of the State of New Jersey and subject to the jurisdictions of the Federal Courts within the State of New Jersey.
15. SERVICE INTERRUPTIONS
The Company may need to interrupt your access to the Affiliate Marketer Program to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
16. NO WARRANTIES
You agree that your use of the Affiliate Marketer Program is at your sole and exclusive risk and that any services provided by us are on an “As Is” basis. The Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. The Company makes no warranties that the Affiliate Marketer Program will meet your needs or that it will be uninterrupted, error-free, or secure. The Company also makes no warranties as to the reliability or accuracy of any information. You agree that any damage that may occur to you, through your computer system, or as a result of loss of your data from your use of the Affiliate Marketer Program is your sole responsibility and that the Company is not liable for any such damage or loss.
17. LIMITATION ON LIABILITY
The Company is not liable for any damages that may occur to you as a result of your participation in Affiliate Marketer Program, to the fullest extent permitted by law. The maximum liability of the Company arising from or relating to this Agreement is limited one hundred ($100) US Dollars. This section applies to any and all claims by you, including, but not limited to, lost profits or revenues, consequential or punitive damages, negligence, strict liability, fraud, or torts of any kind.
18. CONFIDENTIALITY
In the event that any information is disclosed to the Affiliate that the Company deems to be confidential and proprietary, the Affiliate agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Affiliate’s own purposes. Confidential information will include, without limitations, any information regarding the Company, changes or modifications to this Agreement or the Affiliate Marketer Program, or any other terms agreed between Affiliate and the Company. Confidential information shall also include any and all information related to the Company including business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which the Company considers to be confidential and proprietary.
GENERAL PROVISIONS
LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the Affiliate Marketer Program, you agree that New Jersey shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: Monmouth County, New Jersey. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the following county: Monmouth County, New Jersey. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of New Jersey. Each Party shall pay their own costs and fees and shall share equally the cost and fees of the arbitration itself. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including e-mail or fax. For any questions or concerns, please email us at the following address: affiliates@differentenergies.com. Company may communicate with and provide notice to Affiliate using the email address provided by you in the Affiliate Application or as has been subsequently modified by Affiliate and acknowledged by Company.
Contact Information. If have any questions or should you need any additional information about issues relating to the Sites, please contact us at:
Different Energies LLC
2137 NJ-35 North, Ste. 330
Holmdel, NJ 07733
United States
Telephone: (855) 343-3768
Email: legal@differentenergies.com
Version History: 081224 v1