This Customer Referral Agreement is entered between NewACUnit.com, LLC, an Texas limited liability Company and ______________________________ this ________ day of ________________, 2017.
A. NewACunit.com (“the Company”) who is engaged in selling AC equipment particularly through online internet methods. , “the Contractor” is a contractor licensed with the Texas Department of Licensing & Regulation, holding the following licenses and license numbers:
License # Class Type
License # Class Type
License # Class Type
The Contractor has a principal place of business address of:
Street Address City State Zip Code
B. The Company and the Contractor desire to set their respective rights and responsibilities in regards to a customer referral program (the “Program”) that has been created, organized and coordinated by the Company. The Company will utilize the Program to refer consumer and business customers to competent, professional and efficient contractors who will provide excellent customer service. The Contractor will participate in the Program provide professional service and quality construction workmanship to every Customer referred by the Company. The Contractor acknowledges that the Company possesses certain information regarding the Program, products and marketing that are confidential and proprietary trade secrets and the Company plans to share this with the Contractor.
1 Now, for valuable consideration the Company and the Contractor agree to the following:
2 The Company may use various marketing modes to generate interest in the purchase of air conditioning and heating equipment. In connection with the sale of Products by the Company, the Company will refer Customers to licensed contractors who will then contract for and perform the installation of the Products. Once Products are purchased from the Company, a Customer may select the Contractor as its installation contractor and complete a work order. The Company will not contract with any customer for services that must be performed by a licensed contractor. Instead, the Company will establish pre-determined prices for installation to be performed by the Contractor and the Contractor will accept all Customers referred by the Company as its Customers and will accept all Work Orders as a binding contract for installation of the Products for the Installation Fee. The Contractor will be entitled to receive and retain all Installation Fee. The Contractor will also be permitted to “up-sell” the Customer for other goods and services that are outside the scope of the installation of the Products on each Work Order it has received.
2.1 The Company will include the Contractor on its list of contractors to be disclosed to Customers in connection with the sale of Products. The Contractor’s right to be included on the list is subject to performance of all its duties under this Agreement and is a non-exclusive right. The Company reserves the right to include as many contractors as it deems necessary to provide efficient service to its Customers.
2.2 The Contractor will make verbal contact, (by telephone) with every Customer when it receives a Work Order within 8 Working Hours, (hours between 8:00 a.m. and 5:00 p.m. 7 days a week) of the time the Work Order is forwarded to the Contractor. At that time, the Contractor will arrange a job site inspection at the Customer’s home to assess the work required by the Work Order. Unless otherwise requested by the Customer, the Inspection will take place no later than 48 hours after the verbal contact. Any changes to the Work Order must be addressed at this time via telephone call to NewACUnit.com corporate office. Upon completion of the jobsite inspection the contractor will update the Company via the contractor web portal and complete the jobsite inspection form. Unless otherwise requested by the Customer, the Contractor will complete installation of the Products and fulfill the Work Order within 72 hours of the time of the Inspection. The Contractor will accept all Work Orders from Customers referred by the Company and fully perform the scope of work for the Installation Fee stated on the Work Order. Pricing must be in accordance with the Installation Fee predetermined for such Products by the Company in its sole discretion ‘’see section 2.7 for payment scale”. If the Customer is financing their transaction the Contractor must wait three business days or (72 hours) from the date of the work order before installation. The Customer has legal rights under Federal law to cancel this transaction, without cost, until midnight of the third business day after, whichever of the following events occurs last: (1) the date of the transaction, (2) the date this right to cancel notice was received by the customer. If the customers installation is completed 72 hours prior to the right to cancel period, the Contractor will be responsible for all cost related to the equipment and all installation fees if the customer exercise their right to cancel.
2.3 Except for the cost of the Products to be installed, the Contractor will supply all labor and pay for all costs associated with the installation of the Products. Costs will include labor, transportation, crane charges, stand and sheet metal elbow for all packaged unit, miscellaneous fittings and connectors and overhead and all taxes associated with the Installation. The Company retains responsibility for any taxes associated with the sale of the Products alone. The Contractor will be responsible to collect payment of the Installation Fee from the Customer upon completion of the installation of the Products. The Company will not have any obligation to pay any part of the Installation fee or to collect the Installation Fee on behalf of the Contractor.
2.4 The Contractor will insure that it maintains sufficient staff and technicians to perform as required under the Program. The Contractor must be able to complete minimum 45 installations a month. The Contractor will also insure that the Company is in constant possession of up-to-date contact information (physical address, email and phone) so that the Company can make 24 hour contact with a representative of the Contractor.
2.5 The Company retains the right to modify its marketing modes, operating procedures, referral processes and Installation Fee structure at any time. The Contractor agrees that, for the duration of its participation in the Program, it will abide by all the Program operating procedures and referral processes and Installation Fee structures that are in effect at the time it receives a Work Order.
2.6 Immediately upon completion of the Work Order, the Contractor will notify the Company via contractor web portal and complete the Job Completion Form. The Contractor will also assemble all reclaimable scrap to include full removal of the customer’s old air conditioning and heating unit. The Contractor is responsible for removing all trash and ensures a clean job site before leaving.
2.7 The Payment will be due to the contractor by the customer upon completion of the installation. The total payment that will be due to the contractor for an installation of a split system is $1200.00. The total payment that will be due to the contractor for an installation of a packaged unit is $1250.00.
3 The Company hereby grants to the Contractor and the Contractor hereby accepts a revocable, nonexclusive, nontransferable license to use the name NewACUnit.com in connection with its marketing of services by the Contractor. All rights in and to the Trademark owned by the Company not specifically licensed herein to the Contractor are exclusively reserved to the Company. This License will continue until terminated by the Company upon written notice. Once terminated by the Company, the Contractor will immediately discontinue use of the Trademark in any manner. This License is personal to the Contractor and the Contractor will not assign or sublicense any of the rights in the Trademark without the Company’s advance written consent. This License Agreement and the trademark may be assigned or licensed by the Company without any restriction. For so long as the Contractor participates in the Program, the Contractor hereby grants the Company a revocable, nonexclusive license to use the Contractor’s name and any applicable logos or trademarks about the Program, and including any marketing or social media, without charge. The Contractor shall, prior to participation in the Program, provide the Company with digital copies of its logos, trademarks and service marks in a jpeg (or other form acceptable to the Company) format. The Company and Contractor mutually agree that the licenses granted in this paragraph shall not permit the licensee to use the licensed marks in any scandalous or offensive manner, and shall not be used in any way that could bring disrepute to the marks or licensor.
4 The Company warrants that it is the owner of the Trademark and the associated websites, internet domains and names and is authorized to enter into this Agreement with the Contractor. The Contractor warrants that it is a contractor authorized to do business within the State of Texas and is duly licensed by the Texas Department of Licensing & Regulation to perform construction under the Professional Licenses. The Contractor warrants that it is qualified to install HVAC units in a workmanlike manner and possesses sufficient resources (labor and equipment) to perform all Work Orders referred by the Company in accordance with the Program and the terms of this Agreement. The Contractor warrants that it is licensed and bonded as a contractor, as required under Texas law, and that it possesses business liability and casualty insurance and workers compensation insurance for all of its employees.
5 The Contractor and its employees agree that they shall perform each of the following: Because the Company’s reputation as a referral source is a valuable asset, the Contractor will perform all installation of Products and all other work for any Customer in a workmanlike manner in accordance with all applicable industry standards and applicable laws. The Contractor will perform all work for Customers in a safe manner to minimize the risk of injury to any person or property. The Contractor will ensure that all its agents and employees conduct themselves in a professional and respectful manner in dealing with the Company and all Customers. The Contractor will ensure that all the items made in this Agreement will remain accurate and fulfilled. In the event the Contractor becomes aware of any inaccuracy in any way, the Contractor will immediately notify the Company in writing of the inaccuracy and, to the extent possible, take all measures necessary to fulfill its obligations and render them accurate. The Contractor will fulfill each and all its duties as set forth in this Agreement.
5.1 Non-Disclosure, “CONFIDENTIAL INFORMATION” as used herein shall mean all of the information, plans, policies, documentation and processes disclosed to or made available to the Contractor or ascertained through discussion and notes between the Contractor and the Company or any party or person affiliated with the Company, present and future, and such CONFIDENTIAL INFORMATION will include, but is not limited to: business and servicing methods, processes, technology, inventions, patents, developments, formulas, devices, methods, improvements and ideas, territory information, product and pricing information, bidding and marketing information, and the names, addresses, continued patronage and particular needs and desires of Customers of the Company. The Contractor acknowledge and agrees that the CONFIDENTIAL INFORMATION, including valuable trade secrets, is proprietary to the Company. The Contractor also understands that, certain information that may not appear privileged on its face may, in the context of the sale of Products or providing Installation grant competitive insight into the Program that the Company seeks to protect. The Contractor understands and agrees that the CONFIDENTIAL INFORMATION is the sole and exclusive property of the Company. The use, misappropriation, or disclosure of the CONFIDENTIAL INFORMATION will constitute a breach of trust and this Agreement. It is essential to the protection of the Company goodwill and to the maintenance of its competitive position that the CONFIDENTIAL INFORMATION be kept secret and not be disclosed to others. In consideration of the disclosure to the Contractor of the CONFIDENTIAL INFORMATION, the Contractor agrees to hold the CONFIDENTIAL INFORMATION in confidence and to undertake the following additional obligations with respect thereto: Not to copy in whole or in part, the CONFIDENTIAL INFORMATION; to keep in strictest confidence and not to disclose or divulge the CONFIDENTIAL INFORMATION to any party whatsoever; to return the CONFIDENTIAL INFORMATION including all copies and records thereof, to the Company upon request from the Company; not to use the CONFIDENTIAL INFORMATION for any purpose, unless consent is given in writing by the Company, and except as is necessary to complete a Customer Work Order; to hold and safeguard in perpetuity the CONFIDENTIAL INFORMATION in trust for the Company, it successors and assigns; any information which is or in good faith and good conscience ought to be treated as CONFIDENTIAL INFORMATION. Notwithstanding anything to the contrary in this Agreement or otherwise, it is also understood and agreed that in the event any part of the previously stated restrictions shall not be deemed invalid in whole but will be revised to the extent that would then be the maximum scope and duration which will be legally enforceable and the Contractor hereby consent to the enforcement of the limitation as modified.
5.2 The Contractor agrees that neither themselves or the employees will engage in any disreputable conduct that could impair the goodwill of the Company or the value of the Trademarks. Any disreputable conduct may include: Actions that expose the Company to unwarranted liability; excessive complaints before any regulatory agency; public conduct or business practices that result in negative publicity for the Contractor; price gouging or predatory business practices; mistreatment or unlawful discrimination against employees or the Customers; attempts to assess or collect charges from Customers that are not appropriate under the Work Order.
5.3 The Contractor agrees that it will at all times comply with all provisions of federal, state and local law in connection with the use of the Trademark and performing work for Customers. In the event the Contractor becomes aware of an event or act which could be construed as a violation of the provisions of this agreement, that party will immediately give notice to the Company and take the necessary steps to remedy or correct the violation, or to mitigate the damages arising from such violation.
5.4 In the event the Contractor elects to terminate its participation in the Program for any reason, the Contractor agrees to fully perform all of its obligations under this Agreement with respect to all Work Orders it has received prior to giving notice of its termination from the Program. Provided, in the event the Customer has given written authorization for the Contractor to terminate services as to that Customer’s Work Order, the Contractor shall not be obligated to perform that Work Order.
5.5 In the event that the wrong equipment is ordered for a job or the job is cancelled for some reason after The Contractor has taken delivery of the equipment and the equipment needs to be returned to the supplier for credit or exchanged for a different unit, The Contractor agrees to keep all items being returned in like new condition. Making sure it is free of any damage and is in its original packaging. If the Supplier refuses to issue credit because of the condition of the items being returned, The Contractor will incur the cost associated with obtaining the correct equipment needed to complete the job. The Company will not be responsible for purchasing replacement equipment or reselling the equipment refused by the Supplier.
6 The agreements contained herein are valid and enforceable as of the effective date of this Agreement, and will survive the Contractor’s termination of participation in the Program or any expiration, termination or cancellation of this Agreement and will continue to bind the Contractor. The Contractor may terminate its participation in the Program by giving written notice to the Company. Termination from the Program will be effective 24 hours after notice is received by the Company to allow the Company the opportunity to remove the Contractor from its listings. The Company may terminate the Contractor’s participation in the Program and remove the Contractor from its referral list if it determines, in its reasonable discretion, that the Contractor has failed to diligently perform each of its duties in this Agreement. The Contractor agrees that a Customer may cancel the Work Order at any time without cause prior to delivery of the Equipment. The Contractor agrees that a Customer may cancel a Work Order at any time if the Contractor fails to timely perform its duties as required under the Work Order or this Agreement. In the event a Customer cancels a Work Order, the Company is authorized to allow the Customer to select another contractor from its referral list and the substitute contractor will be entitled to receive the Installation Fee related to the Work Order. In the event a substitute contractor is selected, the Contractor waives any right to receive any Installation Fee.
7 The Contractor, agrees to defend and hold the Company and its members, managers, officers, directors, employees and agents harmless from, and to reimburse any Party for any loss of any nature whatsoever arising out of, based upon or resulting from any of the following Claims or matters: Any damage to the Products occurring after the Contractor has taken possession and prior to delivery and installation of the Products for a Customer. Any claims, demands or lawsuits made or filed by any Customer or any third parties relating to any act or omission of the Contractor related to the installation of Products or use of the Trademarks or efforts to collect the Installation Fees. Any inaccuracy in or any breach of any representation and warranty of the Covenanting Parties contained in this Agreement or any certificate or other written instrument or document delivered by the Contractor pursuant hereto, or any breach or nonfulfillment of, or any failure to perform, any of the covenants, agreements or undertakings of the Covenanting Parties contained in or made pursuant to this Agreement
8 Notwithstanding any other term herein, this Agreement will not be construed as creating a partnership or joint venture relationship between the parties and will not create any agency relationship by one party on behalf of the other.
9 This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter concerning this and all agreements and understandings entered into prior to this document with respect to the subject matter hereof are revoked and superseded by this Agreement. No agreements or understandings not contained in this Agreement regarding the subject matter hereof will be of any force or effect unless in writing, executed by the party to be bound and dated on or subsequent to the effective date hereof.
10 This Agreement may be executed by the signing in counterparts. The execution of this Agreement by the parties by each signing a counterpart constitutes a valid execution; this Agreement and all its counterparts shall be deemed for all purposes to be a single instrument. No representations, understandings, or agreements have been made or relied upon in making this agreement other than those specifically set forth herein. This Agreement, and any rights or obligations undertaken herein, may not be assigned or transferred without the express written consent of the Company. The parties acknowledge that each has reviewed this Agreement and received the benefit of legal counsel in reviewing it and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any of its amendments or exhibits. The descriptive headings of the paragraphs of this Agreement are inserted for convenience only and do not control the meaning of any provision. Time and strict performance is of the essence in the performance of the terms of this Agreement.
11 The laws of the State of Arizona will govern the interpretation of the terms of this Agreement. Any dispute regarding the enforcement of any terms of this Agreement will be resolved by the aggrieved party submitting a claim for binding arbitration with the American Arbitration Association. Any arbitration hearing will be held in Maricopa County, Arizona and will be subject to the then existing AAA rules. The final determination from arbitration may be enforced by any court with proper jurisdiction. Notwithstanding the foregoing, nothing will prevent The Company from obtaining injunctive or similar equitable relief pending a resolution of arbitration; any injunction obtained by the Company will be without requirement of posting a bond. If the Company finds it necessary to employ legal counsel or bring an action at law, in equity or other proceeding against the Contractor to enforce or interpret any of the terms, covenants or conditions of this Agreement, then it will be entitled to recover its costs and reasonable attorney's fees.
12 To the full extent possible each provision of this Agreement will be interpreted as to be effective and valid under applicable law. If any provision of this Agreement is declared void or unenforceable, that provision will be deemed severed from this Agreement, and will otherwise remain in full force and effect.
Date Erik J. Bryan/Owner
3045 N. Colorado St.
Chandler, AZ 85225