Recharge Ambassador Program Terms
Last updated on July 17, 2024
By participating in Recharge’s Ambassador Program (the “Program”) or any Program activities, using the Program Page or clicking “I Agree” (or a similar box or button) when you sign up for an Ambassador Account, you agree to be bound by the following Ambassador Program Agreement (“Agreement”).
This Agreement is entered into between you, as Ambassador, and Recharge Inc., a Delaware corporation with a principal place of business at 1507 20th St., Santa Monica, CA 90494 (“Recharge”). Recharge and Ambassador are each referred to herein as a “Party” and collectively as the “Parties.”
ARBITRATION NOTICE. You understand and agree that disputes arising under this Agreement will be resolved by confidential binding, individual arbitration. (See Dispute Resolution and Arbitration provision below.)
You must be an individual to participate; If you are a business entity and are interested in referring merchants to Recharge, you may apply to be a part of the Recharge Agency Partner Program.
- Definitions. For purposes of this Agreement, capitalized terms used herein shall have the meanings set forth in this Section or the meanings otherwise given to them in the main body of this Agreement:
- “Ambassador” or “You” means an individual (over 18 years old or the age of majority of where you reside) that has agreed to the terms of this Agreement. An Ambassador must be an individual and cannot be: (a) a legal entity or (b) a Recharge employee or contractor.
- “Ambassador Account” means a Program account you create at the time of sign-up. Creating an Ambassador Account does not mean You are accepted into the Program. Acceptance to the Program is governed under Section 2, Ambassador Program, below.
- “Ambassador Link” means the unique tracking link Recharge provides to you for you to promote on your site or through other channels.
- “Feedback” means any feedback from Ambassador related to the Recharge Services or the Program, including without limitation, feedback on features or functionality, usability, and specifications, and may also include suggestions or ideas for improvements or enhancements to the Recharge Services or the Program.
- “Intellectual Property Rights” means patents, copyrights, utility models, trademarks, design rights, database rights, trade secrets, know-how, and other rights in Confidential Information, trade and business names, and all other intellectual property rights, proprietary rights, and forms of protection of any kind of a similar nature or having a similar effect in any country or jurisdiction, whether registered or unregistered, together with all registrations, applications, renewals and extensions of and to such rights.
- “Qualified Merchant” means a merchant referred to Recharge by Ambassador, who meets one of the following requirements:
(a) For Standard Pricing plan Merchant: Merchant installs and goes live with the Recharge Services subsequent to the Ambassador’s referral being accepted by Recharge in accordance with the terms of this Agreement;
(b) For Pro, Custom, or Hybrid Pricing plan Merchant: Merchant signs and executes a Merchant Contract with Recharge. - “Recharge IP” means the Recharge Services, the Marketing Materials (defined below), the Recharge Marks (defined below), and all intellectual property therein or related thereto, and any other software, technology, materials, or intellectual property that may from time to time be created or developed by Recharge or its agents (including any modifications or derivatives to the Recharge Services, the Marketing Materials, the Recharge Marks), including any and all Intellectual Property Rights to the foregoing.
- “Recharge Services” shall mean the products, features, and related services provided by Recharge for commerce optimization, including solutions for enabling and managing orders, subscriptions, payments, recurring billing, and rewards. Any new products or features that are added to the current Recharge Services will also be subject to this Agreement.
- Ambassador Program
- Registration Process. To join the Program, Ambassador must first affirmatively accept and agree to this Agreement, complete all registration forms and provide all supporting information and materials requested by Recharge (collectively, the “Registration Materials”). Recharge will review Ambassador’s Registration Materials and may reach out to You for additional information. Recharge will use reasonable efforts to notify Ambassador via email within 30 days of submission regarding whether Ambassador has been accepted to the Program. If Recharge does not notify You that You have been accepted into the Program within 30 days from your submission, your application is considered to be rejected.
- Rejection; Termination. Recharge may accept or deny any prospective Ambassador for any reason or no reason in its sole discretion. Recharge’s acceptance criteria for the Program is subject to change by Recharge, in its sole discretion, at any time without prior notice. If You are accepted to participate in the Program and You are thereafter determined (in Recharge’s sole discretion) to be unsuitable based on the Program’s acceptance criteria or for any reason whatsoever, Recharge may terminate this Agreement and, upon such a termination, You will no longer be an Ambassador of the Program.
- Referral Right. Once Ambassador has been accepted to the Program (as evidenced by Ambassador’s receipt of an acceptance email from Recharge), Recharge shall grant and hereby does grant the Ambassador a non-exclusive right to solicit and refer potential merchants for the Recharge Services on the terms set out herein. Notwithstanding the foregoing, Ambassador will not have the authority, express or implied, to make any commitment, enter into any agreements or contracts, or incur any obligations or liabilities on behalf of Recharge other than making referrals as set forth in this Agreement. If Ambassador is not accepted to the Program or is later terminated, then Ambassador shall not be entitled to any benefits or commissions under the Program and shall have no right to solicit or refer potential merchants for the Recharge Services.
- Non-Exclusivity. The Parties acknowledge and agree that this Agreement shall in no way limit Recharge’s right to market the Recharge Services to any merchants, or to engage other third parties to carry out marketing and referral services with respect to the Recharge Services on Recharge’s behalf.
- Policies. Ambassador acknowledges that Recharge may establish guidelines, policies, rules, or other documentation applicable to the Program (collectively, the “Policies”). Those Policies may contain terms and conditions in addition to those in this Agreement and are subject to change at any time. The Policies shall be communicated by or made publicly available or posted by Recharge on the Program Page as they become applicable or are modified. Ambassador is responsible for reviewing the Policies regularly. Ambassador’s participation in the Program is subject to Ambassador’s compliance with the Policies, and all of the Policies are hereby incorporated by reference into this Agreement.
- Ambassador Qualification, Responsibilities, and Restrictions
- Ambassador Qualification. Ambassador must be an individual who is (a) at least 18 years old or (b) over the age of majority in the jurisdiction where Ambassador resides and carries out Ambassador activities under the Agreement.
- Referral and Marketing Activities
- Ambassador will use commercially reasonable efforts to refer potential merchants to Recharge for the Recharge Services. Ambassador shall at all times comply with Policies, Marketing Material guidelines, or other Program requirements from time to time provided by Recharge.
- Ambassador will reasonably assist Recharge in completing sales to accepted merchant referrals as and to the extent requested by Recharge.
- Ambassador shall bear all of Ambassador’s own costs and expenses associated with Ambassador’s compliance with this Agreement and Ambassador’s participation in the Program. Without limiting the foregoing, Ambassador agrees that any marketing activities performed by Ambassador under this Agreement shall be at Ambassador’s own cost and expense unless otherwise agreed upon an executed agreement between Recharge and Ambassador.
- Ambassador acknowledges and agrees that Ambassador’s participation in the Program is governed by Recharge’s Privacy Policy (https://getrecharge.com/privacy-policy/) and Acceptable Use Policy (https://getrecharge.com/acceptable-use-policy/), as amended from time to time.
- Ambassador will not use Recharge Marks or variations or misspellings thereof in Ambassador’s business name, logo, advertising, social media, domain name, branding, product or services unless expressly permitted in advance and in writing by Recharge at each instance.
- Ambassador will not purchase or register search engines or other pay-per-click keywords (such as Google Ads), trademarks, email addresses or domain names that use any Recharge Marks or any variations or misspellings thereof that may be deceptively or confusingly similar to Recharge Marks. Ambassador is required to add Recharge trademarks as negative keywords to help prevent violation of this section.
- Ambassador agrees to carry out the marketing activities under this Agreement in a way that secures and strengthens the reputation of Recharge and the Recharge Services. Ambassador will not engage in any practices which may adversely affect the credibility or reputation of Recharge.
- Ambassador must obtain express consent from merchants to be referred to Recharge by Ambassador and for Recharge to contact merchants for Recharge Services.
- Ambassador will always include Ambassador’s contact information and “unsubscribe” information in any email regarding Recharge or Recharge Services, and Ambassador will not state or imply that such emails are being sent on behalf of Recharge.
- Ambassador shall acknowledge and respond to reasonable requests (including information or document requests) from Recharge in a timely manner.
- Ambassador represents and warrants that it will not: (a) engage in any deceptive, misleading, illegal, or unethical practices; (b) make representations or warranties concerning the Recharge Services, except as set forth in Marketing Materials (defined below) furnished by Recharge; and (c) violate any intellectual property or other rights (including privacy rights) of any third party.
- During the course of performing its referral activities hereunder, Ambassador may disclose and provide to Recharge certain data, information, and materials related to prospective merchants (collectively “Prospect Information”). Ambassador warrants that Recharge shall have an unrestricted right and license to use such Prospect Information for purposes consistent with this Agreement and to contact and market to prospective merchants. Ambassador shall not share any confidential information of any third party (including a prospective merchant referral) with Recharge unless Ambassador has first identified such information as confidential prior to disclosure and Recharge has agreed to accept such information in writing. Ambassador shall only share or disclose Prospect Information with Recharge if and to the extent such Prospect Information was collected in compliance with applicable law (including but not limited to applicable privacy laws) and only to the extent that the sharing of such Prospect Information with Recharge is permitted by applicable law and consistent with any contractual obligations applicable to Ambassador.
- Compliance with Laws.
- Ambassador shall carry out the marketing activities performed under this Agreement in compliance with all applicable laws and regulations, including but not limited to the Telephone Consumer Protection Act (“TCPA”), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”), and the Federal Trade Commission (“FTC”)’s guidelines for endorsements and testimonials (accessible at: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf).
- Ambassador shall (a) disclose any “material connection” according to FTC guidelines in a clear and conspicuous manner and (b) not engage in misleading or deceptive marketing or advertising practices.
- Referral Process
- Referral by Ambassador. When Ambassador identifies a prospective merchant, Ambassador will either:
- (a) complete the Ambassador referral intake form in order to register Ambassador’s referral to Ambassador’s Ambassador Account. Ambassador shall timely provide such information and complete such referral intake forms related to the referral as Recharge may reasonably require or request; or
- (b) provide the prospective merchant with Your Ambassador Link.
- Review by Recharge. Upon receipt of a referral, Recharge has the right to accept or reject the referral in its sole discretion. A referral may be rejected for any reason, including, but not limited to, because the referral is not qualified, contact with Recharge has already been established with the referral, or the referral is an existing Recharge merchant. Recharge shall promptly notify Ambassador in writing if a referral has been accepted or rejected (via PartnerStack tags or notifications, email, Slack, or other means of electronic communications being sufficient for this purpose). If Recharge does not provide written notice of rejection or acceptance within ten (10) business days, the referral is deemed to have been rejected. Once a referral is accepted by Recharge, such referral merchant will be eligible to become a Qualified Merchant.
- Merchant Contracts. Nothing herein shall obligate Recharge to accept a referred merchant or provide services to any referred merchant or to enter into a contract or agreement with any referred merchant (a “Merchant Contract”). Ambassador acknowledges and agrees that each Merchant Contract is a direct agreement between the Qualified Merchant and Recharge. This means, with respect to a particular Merchant Contract, Ambassador shall not have any right to review or negotiate such Merchant Contract, or to be advised of or consulted regarding any Merchant Contract. In particular, Recharge shall be solely responsible for determining all terms and conditions pertaining to payments and fees owing under a Merchant Contract or otherwise applicable to the Recharge Services.
- Marketing Materials; Trademarks; Intellectual Property Rights.
- Marketing Materials. Recharge may, at its own expense and discretion, provide Ambassador with marketing and technical information concerning the Recharge Services as well as reasonable quantities of brochures, instructional material, advertising literature, and other product data (collectively, the “Marketing Materials”). In such an event, Ambassador shall have a non-exclusive, non-transferable, royalty-free license to use such Marketing Materials for the sole purpose of marketing the Recharge Services and providing such Marketing Materials to potential merchants.
- Marketing Material Restrictions. Ambassador may not: (a) sell, lease, license, copy, sublicense, decompile, disassemble, modify, reverse engineer, modify, or prepare derivative works of the Marketing Materials; (b) permit anyone else to use the Marketing Materials without Recharge’s prior written consent; or (c) remove, alter or obscure any copyright, trademark or other notices or logos on any portion of the Marketing Materials. Nothing contained in this Agreement shall grant or be deemed to grant Ambassador any right, title, or interest in or to the Marketing Materials. Recharge shall own and retain all rights, titles, and interests in and to (including, without limitation, all Intellectual Property (“IP”) Rights) in the Marketing Materials and any Recharge IP. Any goodwill resulting from Ambassador’s use of Recharge’s Marketing Materials inures solely to the benefit of Recharge and will not create any right, title, or interest for Ambassador in any of the Marketing Materials or any Recharge Marks. Ambassador may identify Recharge as the supplier of the Recharge Services in marketing materials independently developed by Ambassador only if Recharge approves such materials in writing in advance (including approval by Recharge’s legal department).
- Recharge Marks. Before Ambassador uses any Recharge trademarks, trade names, or logos (the “Recharge Marks”) in connection with this Agreement, Ambassador must first obtain the written permission of Recharge; provided that the foregoing shall not limit Ambassador’s ability to use the Marketing Materials consistent with their intended purpose and the other requirements hereof.
- Recharge Marks Restrictions. Ambassador must at all times abide by any usage guidelines, requirements, or Policies from time to time provided by Recharge applicable to the Recharge Marks. Ambassador will not challenge or assist others to challenge any of the Recharge Marks or their registration or attempt to register any trademarks, trade names, or logos confusingly similar to any of the Recharge Marks. If Ambassador acquires any goodwill or reputation in any of the Recharge Marks, all such goodwill or reputation shall automatically vest in Recharge, and Ambassador agrees to take all actions necessary to effect such vesting. When this Agreement ends or is otherwise terminated, Ambassador will immediately cease use of all Recharge Marks. Nothing contained in this Agreement shall grant or be deemed to grant Ambassador any right, title, or interest in or to any of the Recharge Marks, other than the limited use rights set forth herein. Upon Recharge’s request, Ambassador will immediately cease use of all of the Recharge Marks.
- Recharge IP. Ambassador agrees that all of the Recharge IP and all Feedback are owned by Recharge or its licensors, and are protected by U.S. and international intellectual property laws, and that Recharge or its licensors (as applicable) do and shall solely own and retain all rights, titles, and interests to, including all Intellectual Property Rights in, the Recharge IP and all Feedback, as well as any and all modifications, enhancements and derivative works made to the foregoing. Recharge IP is the Confidential Information of Recharge. Ambassador agrees to assign and hereby does assign to Recharge all of its rights, titles, and interests in and to the Feedback, including all Intellectual Property Rights therein. If, notwithstanding the assignment of Feedback set forth above, Ambassador retains ownership of any Feedback, then Ambassador hereby grants to Recharge a non-exclusive, perpetual, irrevocable, worldwide, royalty-free right and license to use, disclose and exploit such Feedback without restriction, including, without limitation, to use the Feedback for its business and commercial purposes and to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of Recharge’s offerings.
- Recharge’s Use of Ambassador’s IP. Ambassador grants Recharge a worldwide, non-exclusive, royalty-free, transferable, and sub-licensable right and license to use and display in any manner the Ambassador’s trademarks, service marks, logos, trade names, copyrighted content, graphic files, images, and other intellectual property, in connection with and for the purpose of performing its obligation and exercising its rights under this Agreement. In addition, at Recharge’s discretion, Recharge may use any such intellectual property for the purpose of promoting or marketing Ambassador, Ambassador’s product or services, or as otherwise agreed to with Ambassador.
- Referral Fees and Payments
- Standard Referral Fees. Subject to Ambassador’s acceptance and compliance with this Agreement, Ambassador’s sole compensation will be the payment of a commission (“Fee”) for each Qualified Merchant calculated in accordance with the Commission Plan found at Recharge Ambassador Program Guide (“Commission Plan”), which is hereby incorporated by reference into this Agreement. Recharge reserves the right to modify the Commission Plan and commission rates from time to time at its discretion by providing Ambassador with 30 days written notice. Such notice will be provided by email, Slack and/or by posting a notice on the Program Page, as applicable. However, commission changes only affect sales to referrals registered starting 30 days after the date of the notice provided by Recharge. In the event of any dispute over Fees, Recharge’s determination will be final and binding.
- Limited-time Marketing Campaign and Special Referral Fees. From time to time, at Recharge’s sole discretion, Recharge may offer limited-time Ambassador campaigns to promote Recharge’s Services at a special fee (different from the Commision Plan) or alternative rewards (such as Recharge-branded swag, gear, or event tickets). Such Ambassador marketing campaigns may be announced in the Program Page or by Recharge’s written invitation to select Ambassadors, at Recharge’s sole discretion.
- Payment. Recharge will pay commissions to Ambassador as specified in the Commission Plan provided that: You (i) completed all steps necessary to create your Ambassador Account; (ii) have a valid and up-to-date payment method in the Ambassador Account; and (iii) completed any and all required tax documentation in order for Recharge to process any payments that may be owed to You.
- Fee Forfeiture. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in Section 6.3 remain outstanding for ninety (90) days immediately following the successful referral of a Qualified Merchant , then your right to receive Fee arising from any and all Fees with the associated Qualified Merchant will be forever forfeited (each, a “Forfeited Transaction”). Recharge shall have no obligation to pay you any Fee associated with a Forfeited Transaction. Once you comply with all of the requirements in Section 6.3, you will be eligible to receive a Fee on Merchant Contracts as long as those Merchant Contracts do not involve the same Qualified Merchants associated with a Forfeited Transaction.
- Taxes. All fees stated in this Agreement are exclusive of any applicable sales or value-added tax, unless specifically stated otherwise. Each Party is solely responsible for: (a) determining what, if any, taxes or fees apply to the sale of its products and services, or payments it receives in connection with such sale; and (b) assessing, collecting, reporting, and remitting any taxes or fees for its business to the appropriate tax and revenue authorities.
- Additional Payment Information.
- Recharge may withhold payment if Ambassador fails to provide Recharge with information that is required to make payment. Notwithstanding anything to the contrary in this Agreement, Recharge will not be responsible for paying any Fees:
- to a Qualified Merchant created or owned in whole or in part by Ambassador or is otherwise affiliated with Ambassador;
- related to fraudulent sales and/or misuse of Ambassador Link; or
- to Ambassadors who are employed by Recharge or otherwise engaged by Recharge as a service provider (whether full-time, part-time, by contract, or any other employment-type relationship); or
- If any Fees paid by Recharge are subsequently discovered to be subject to one or more of the exclusions set out in Section 6.6.1, or to have been paid in error, Recharge shall have the right, at its sole discretion, to: (a) reclaim any Fees paid to Ambassador in error; or (b) set off the amounts described in Section 6.4 from payments due to Ambassador in the future. If the Agreement is terminated before such amounts are fully repaid by Ambassador to Recharge, Ambassador will pay to Recharge the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
- Recharge may withhold payment if Ambassador fails to provide Recharge with information that is required to make payment. Notwithstanding anything to the contrary in this Agreement, Recharge will not be responsible for paying any Fees:
- Term; Termination
- Term. This Agreement shall continue for a period of time equal to one (1) year from the Effective Date (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party provides the other Party with notice of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
- Termination
- For Convenience. During the Term, either Party may terminate this Agreement, at any time for any or no reason upon thirty (30) days’ prior written notice to the other Party. Recharge reserves the right to cancel or modify the Agreement in its entirety, including Fees, at any time. If a material change is made to the Agreement, including material change to Fees, Recharge will provide reasonable notice by email, Slack and/or posting a notice on the Program Page.
- For Cause.
- If either Party fails to perform any of its material obligations under this Agreement or otherwise breaches any material terms and conditions of this Agreement, the other Party may terminate this Agreement by giving ten (10) days prior written notice, provided that the matters set forth in such notice are not cured to the terminating Party’s reasonable satisfaction within the 10-day period. Without limiting the foregoing, the Parties agree that any breach of Sections titled Marketing; Trademarks; IP, Referral Compensation, Disclaimer of Warranties, and Recharge Limitation of Liabilities in this Agreement shall constitute a material breach.
- Fraudulent or other unlawful behavior by Ambassador as determined by Recharge in its sole discretion, may result in one or more of the following actions take by Recharge: (a) immediate termination of Ambassador’s affiliation with Merchants within the Ambassador Account; (b) immediate suspension of some or all Ambassador privileges under the Program (including but not limited to, approved and/or pending Fee payments); and (c) termination of the Ambassador Account and this Agreement without notice to, or recourse for, Ambassador.
- In addition to the foregoing, either Party shall have the right to terminate this Agreement upon written notice if the other Party terminates its business activities or becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
- Effects of Termination. Except as expressly required by law, if either Party terminates this Agreement in accordance with any of the provisions of this Agreement, neither Party will be liable to the other, because of such termination, for expenditures or commitments made in connection with this Agreement or damages caused by the loss of prospective profits or anticipated sales. Termination will not, however, relieve either Party of obligations incurred prior to the effective date of the termination. Upon termination, Ambassador will immediately cease all marketing and referral activities hereunder and shall cease use of the Marketing Materials and Recharge Marks, and destroy and/or return to Recharge (as instructed by Recharge) any and all copies of such Marketing Materials. Upon termination, Ambassador may no longer identify itself as a Recharge Ambassador and shall remove all references to Recharge from Ambassador’s website or social media pages/accounts. Each Party shall return or destroy all Confidential Information of the other Party and shall provide a written certification of such return or destruction if requested by the other Party. Upon termination, Recharge will only be responsible for paying a commission for referrals accepted prior to the effective date of the termination. The following provisions will survive any expiration or termination of this Agreement: Sections 2.4, 2.6, 2.7, 4.3, 4.8, 4.9, 5.3, 5.5, 5.6, 6.3, 7.2, 8, 9, 10, 11, 12 and 13.
- Disclaimer of Warranties. RECHARGE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (WHETHER IN FACT, BY OPERATION OF LAW OR OTHERWISE), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. RECHARGE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE WITH RESPECT TO THE RECHARGE SERVICES AND/OR THE RECHARGE AMBASSADOR PROGRAM. RECHARGE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE RECHARGE SERVICES OR AGAINST INFRINGEMENT. RECHARGE DOES NOT WARRANT THAT THE RECHARGE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE RECHARGE SERVICES WILL BE SECURE OR UNINTERRUPTED. AMBASSADOR DOES NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF RECHARGE TO ANY MERCHANT OR OTHER THIRD PARTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR INDUSTRY CUSTOM. RECHARGE IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM AMBASSADOR’S USE OF RECHARGE MARKETING MATERIALS OR AMBASSADOR’S DEALING WITH ANY MERCHANT. AMBASSADOR UNDERSTANDS AND AGREES THAT AMBASSADOR’S PARTICIPATION IN THE RECHARGE AMBASSADOR PROGRAM IS AT AMBASSADOR’S OWN DISCRETION AND RISK. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. RECHARGE DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT RECHARGE IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
- Ambassador Indemnity. Ambassador will defend, indemnify and hold harmless Recharge and its affiliates and their respective employees, directors, agents, and representatives (“Recharge Indemnified Parties”) from and against any lawsuit, claim, allegation, damage, liability, cost, loss or expense (including reasonable attorneys’ fees) that may at any time be incurred by any of them resulting from, relating to or arising out of: (a) Ambassador’s breach or violation of this Agreement or any Policies, (b) Ambassador’s negligence, willful misconduct, fraud or violation of applicable law, and (c) any claims or disputes between Ambassador and any prospective merchant or Qualified Merchant. The applicable Recharge Indemnified Party shall give Ambassador prompt written notice of the claim. Ambassador shall have full and complete control over the defense and settlement of the claim, provided that no settlement admitting liability on the part of a Recharge Indemnified Party may be made without the express written consent of such Recharge Indemnified Party. The applicable Recharge Indemnified Party shall provide such assistance in connection with the defense and settlement of the claim as Ambassador may reasonably request at Ambassador’s cost and expense.
- Recharge Limitation of Liability
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, RECHARGE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO AMBASSADOR FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF RECHARGE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- UNDER NO CIRCUMSTANCES WILL RECHARGE’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY RECHARGE TO AMBASSADOR UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). AMBASSADOR AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ITS PARTICIPATION IN THE RECHARGE AMBASSADOR PROGRAM OR THIS AGREEMENT MUST BE BROUGHT BY AMBASSADOR WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES AND OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND AMBASSADOR SHALL NOT BE PERMITTED TO BRING ANY CLAIMS RELATED THERETO.
- EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE COMMISSION OFFERED BY RECHARGE TO AMBASSADOR AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
- Confidentiality
- Confidential Information. “Confidential Information” means any information, in whatever form, disclosed or provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in the context of this Agreement. During the Term of this Agreement and for a period of two (2) years thereafter, a Receiving Party shall not disclose Confidential Information of a Disclosing Party to any third party without the Disclosing Party’s written consent. The confidentiality obligation under this section does not apply to any information which: (1) is or becomes generally available to the public other than as the result of a disclosure by the Receiving Party; (2) the Receiving Party can show that it already had in its possession before it was received; (3) the Receiving Party has received from a third-party who was free to lawfully disclose such information to the Receiving Party; (4) the Receiving Party is required to provide in accordance with any applicable laws, investment exchange rules, court order or decision by a governmental authority, provided that (i) the Receiving Party shall promptly notify the Disclosing Party of that fact in writing to permit the Disclosing Party the reasonable opportunity to appear in any judicial proceeding involved or otherwise act to preserve its rights, (ii) such disclosure is not greater than what was required to be compliant with such law, regulation or order, and (iii) the Receiving Party seeks confidential treatment for Confidential Information prior to disclosure. The burden of proof lies with the Receiving Party to demonstrate that any of the aforementioned requirements (1) to (4) is fulfilled.
- Restrictions. Except as permitted in this Agreement, a Receiving Party shall not use the Confidential Information of the Disclosing Party except for the purpose of performing its obligations under this Agreement or exercising the rights granted in this Agreement. A Receiving Party shall protect all Confidential Information of the Disclosing Party from disclosure and unauthorized use in the same manner that it protects its own proprietary and confidential information of like nature, but in no event shall such standard of care be less than reasonable care. Except as expressly authorized hereunder, a Receiving Party shall not copy the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. A Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of such Disclosing Party’s Confidential Information.
- Third Party Information. For the avoidance of doubt, Confidential Information also refers to third party information (including information of Qualified Merchants) that is of technical, commercial or other nature unless it is clear that such information is non-confidential. Each Party may share Confidential Information with its subcontractors, external advisors and any of its Ambassadors on a need-to-know basis, provided that such parties are subject to written confidentiality obligations corresponding to those under this Agreement. Notwithstanding anything in this Agreement, the Parties acknowledge and agree that any information that may be deemed a trade secret shall be subject to confidentiality for as long as such information remains a trade secret. Prospect Information shall not be considered Confidential Information hereunder unless Ambassador complies with its obligations under Section [4.7] and Recharge has agreed to receive such information.
- General
- Effective Date; Right to Modify; Binding Effect of Continued Use. This Agreement is effective as of the date that Ambassador clicks “I Agree” or “I have read and agree to Recharge’s Ambassador Program Terms” when these terms are first presented in connection with the Ambassador Marketing Program registration process or Ambassador otherwise starting using or accessing any Recharge Marketing Materials (the “Effective Date”). Recharge reserves the right to change this Agreement from time to time without notice to Ambassador, and any modifications or changes to this Agreement (including changes to the Policies and Commission Plan) shall be effective upon such modification or amendment being posted to the Recharge website or any specific pages applicable to Recharge Ambassadors or otherwise communicated to Ambassador, unless otherwise stated herein. Ambassador acknowledges and agrees that it is Ambassador’s responsibility to review this Agreement (including the Policies and Commission Plan) periodically and to be aware of any modifications. Ambassador’s continued use of any Marketing Materials or other participation in the Program after such modifications will constitute Ambassador’s acknowledgement of the modified Agreement and agreement to abide and be bound by the modified Agreement.
- Governing Law; Venue. Ambassador agrees that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between Ambassador and Recharge, except as otherwise stated in this Agreement. All actions related to this Agreement shall take place in Santa Monica, California, subject to the terms of the next section.
- Dispute Resolution and Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, or any breach thereof, such controversy or claim shall be determined and settled by confidential arbitration, conducted in English, held in Santa Monica, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the Parties, and judgment thereon may be entered in any court of competent jurisdiction. The Parties shall keep confidential: (a) the fact that any arbitration occurred; (b) any awards awarded in the arbitration; (c) all materials used, or created for use in, in the arbitration; and (d) all other documents produced by another Party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right), or to enforce or challenge an arbitration award before a court or other judicial authority. The arbitrator shall award to the prevailing Party, if any, its costs and expenses, including its attorneys’ fees. The prevailing Party shall also be entitled to its attorneys’ fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings. Nothing in the Agreement shall prevent either Party from seeking provisional measures or equitable or injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
- Assignment; Reproduction of Sites. Ambassador may not assign Ambassador’s rights and obligations under this Agreement to any third party, and any purported attempt to do so shall be null and void. Recharge may freely assign Recharge’s rights and obligations under this Agreement and transfer, assign or novate this Agreement.
- Enforceability; Severability. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
- No Waiver. Any failure by Recharge to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision or a waiver of Recharge’s right to enforce or exercise any such provision of this Agreement in the future.
- Intended Beneficiaries. This Agreement is strictly between Recharge and Ambassador. There are no intended third-party beneficiaries of this Agreement.
- Entire Agreement. This Agreement, the Policies and the Commission Plan constitute the entire agreement and understanding between Recharge and Ambassador concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. In order to be valid, any amendments and additions to this Agreement must be agreed to in a written agreement signed by Ambassador and an authorized signatory of Recharge.
- Independent Contractors. In performing this Agreement, the Parties act and shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, or employer-and-employee relationship between the Parties. Except as expressly set forth in this Agreement, at no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party. Financial and other obligations associated with each Party’s business are the sole responsibility of that Party.
- Notices. Ambassador’s acceptance of this Agreement as described above constitutes Ambassador’s electronic signature to this Agreement and Ambassador’s consent to enter into agreements with Recharge electronically. Ambassador also agrees that Recharge may, but has no obligation to, send to Ambassador in electronic form any privacy or other notices, disclosures, reports, documents, communications, or other records regarding the Program (collectively, “Notices”). Recharge can send Ambassador electronic Notices (a) through PartnerStack notifications, (b) to the e-mail address that Ambassador provided to Recharge (if any), (c) via Slack (if applicable)or (d) by posting the Notice at the Program Page, the Recharge website, or any specific pages applicable to Ambassadors. The delivery of any Notice from Recharge is effective when sent or posted by Recharge, regardless of whether Ambassador reads or views the Notice when Ambassador receives it or whether Ambassador actually receives the delivery. Ambassador can withdraw Ambassador’s consent to receive Notices electronically by terminating this Agreement. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. All questions, complaints, claims, or other notices to Recharge shall be in writing and shall be made either via email to ambassadors@rechargeapps.com or conventional mail to the addresses set forth below, or using any contact functions made available in connection with the Program. Any legal notices or legal matters related to this Agreement must be in writing and sent by courier or certified mail to the address below to the attention of the Recharge Legal Department (Contract Notices), with an email copy to (but does not constitute notice) legal@rechargeapps.com.
Address: 1507 20th St., Santa Monica, CA 90404
Any notices or communication under this Agreement will be deemed delivered to Recharge on the date received by Recharge.