Inspector Relationship Terms & Conditions
These Terms & Conditions (T& C) are agreed to by Inspector/Firm (Inspector) per the sign up page(www.wellguardian.us/ips or www.wellguardian.us/ahi-partner) and Well Guardian Corporation (WelGard), a Maryland corporation (hereinafter collectively referred to as the “Party” or “Parties”). The effective date of this Agreement is the date on which the inspector has accepted these T&C.
Recitals
Whereas the intent of these T&C is to establish an incremental service of well inspection for the Inspector, and, as a result, create a marketing referral relationship between the Parties to market and co-market services related to well protection (i.e., a warranty), and;
Whereas the common purpose of this Agreement is to mutually promote the business opportunities wherein the Parties will mutually share in the benefits thereof
Now, therefore, in consideration of and in reliance upon the mutual understanding set forth herein, the Parties agree as follows:
Background
The purpose of these T&C is to set forth the basic understanding and terms of operating between the Parties regarding (a) the principal matters of the relationship, (b) the ownership or rights that result from any products and services (collectively “Services”), (c) compensation arrangements for the various parties involved in the marketing and distribution of the Services.
The Parties acknowledge and agree that Inspector and WGC are free to contract with each other and that by doing so neither of them will be violating any prior contractual relationships with any other entities not a Party to the contemplated relationship. Neither of the Parties, their directors, officers, managers, consultants, agents or employees, is a party to any contractual agreement, written or oral, with any entity that would prevent the performance of any of the provisions of this agreement or the contemplated relationship herein; nor cause any breach hereof.
Term of Agreement
The term of this Agreement shall commence upon the date on which it is executed by both Parties and shall continue unless terminated, for just cause, by either Party upon 30 days written notice. The terms of just cause will be agreed to by both parties and attached in Schedule D to this agreement. Cancellation will be immediate and without recourse for just cause as defined in Schedule D. The cancellation of this agreement for other than just cause will not impair any fees or commissions, or rights of ownership to Services that Inspector or WGC becomes entitled to during the term of this Agreement or shall be entitled to as a result of joint efforts to develop and market services or products during the term of the Agreement.
Mutual Responsibilities
This Agreement is to provide the framework of a relationship whereby the Parties will jointly market, sell and support the Services as well as to co-market each other’s respective services. The Parties will endeavor to create mutual value through a close working relationship where Responsibilities are defined. It is understood that responsibilities may change from time-to-time based on practical experience in working together and based on the nature and requirements of specific target markets and/or client opportunities. Upon mutual agreement, such changes will be documented as circumstances develop. See Schedules A and B for responsibilities and marketing fees, respectively.
Ownership of Intellectual Property
For purposes of this Agreement, "Intellectual Property" shall mean Inventions as well as all works protectable by copyright, trademark, patent and trade secret laws or by any other statutory protection obtained or obtainable, and any Confidential And Proprietary Information (as defined below) of a party that meets one of the foregoing criteria, including without limitation, any literary works, pictorial, graphic and sculptural works, architectural works, works of visual art, and any other work that may be the subject matter of copyright protection; advertising and marketing concepts; information; data; formulae; designs; models; drawings; computer programs, including all documentation, related listings, design specifications, and flowcharts, trade secrets, and any inventions including all methods, processes, business or otherwise; machines, manufactures and compositions of matter and any other invention that may be the subject matter of patent protection; and all statutory protection obtained or obtainable thereon.
“Invention” means any idea, design, concept, technique, invention, discovery or improvement, whether or not patentable, conceived or first reduced to practice solely by one or more employees or agents of a Party hereto in the performance of work under this Agreement.
All intellectual property developed and/or owned by either Party prior to the effective date and that which is developed during the term of this Agreement will remain in the ownership of that Party.
Rights to Use Intellectual Property
The Parties will cross-license to the other any intellectual property for the purpose of jointly marketing and selling the Services during the term of this Agreement worldwide.
Except as expressly set forth in this Agreement, no license is granted, either directly or indirectly, by implication or estoppel or otherwise, to either Party under any patent, copyright, trademark, or other intellectual property right of the other Party. Also, neither Party shall have the right to license third parties thereunder without accounting to the other Party.
Post-Termination Rights and Responsibilities
In the event of termination for other than just cause as defined in Schedule D, the Parties will continue to fulfill their relevant obligations under this Agreement for existing clients/members for the duration of the contract period with those clients and any renewals, thereafter, including any extensions thereto.
Nondisclosure Of Confidential And Proprietary Information
At all times during the term of the Agreement and thereafter, each Party agrees to hold in strictest confidence and not to disclose all information, whether or not in writing, of a private, secret, sensitive or confidential nature concerning the other Party’s business, business relationships, customer data or financial affairs (collectively, “Confidential and Proprietary Information”). Confidential and Proprietary Information is and shall be the exclusive property of each Party. By way of illustration, but not limitation, Confidential and Proprietary Information may include inventions, products, processes, methods, techniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the other Party. The Parties agree not to disclose any Confidential and Proprietary Information, either during or after the term of the Agreement, to any person or entity other than employees of the Party’s respective company or to use the same for any purposes other than in the performance of services pursuant to the terms of the Agreement, without written approval by an appropriate officer of the other Party.
The Parties further agree that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program listings, or other written, photographic, or other tangible material containing Confidential and Proprietary Information, whether created by either Party, which has come into their custody and possession or which shall come into their custody or possession, shall be and is the exclusive property of the individual Party to be used by the other Party in the performance of their duties and responsibilities to the other pursuant to this Agreement. All such data, materials or copies thereof and all tangible property in the Party’s custody or possession shall be delivered to the other Party upon the earlier of (i) a request by the Party or (ii) the termination of the Agreements between the Parties. After such delivery, either Party shall not retain any such materials or copies thereof or any such tangible property of the other. This provision does not apply to the names, addresses and contact information provided to WGC by Inspector during the term of the Agreement.
Third Party Information
Both Parties understand that in addition, they have received, and in the future will receive, from third parties, confidential and proprietary information ("Third Party Information") subject to a duty on either Parties part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of the Agreements between the Parties and thereafter, the Parties will hold Third Party Information in the strictest confidence and will not disclose it to anyone (except in respect to the agreements between the parties), unless expressly authorized by an executive officer of either Party in writing to do so.
The Parties further agree that the obligation not to disclose or to use data, information and materials of the types set forth in paragraphs 1 (a) and 1 (b) above, and the obligation to return data, materials, and tangible property, set forth in paragraph 1 (b) above, also extends to materials and tangible property of mutual customers of the Parties or suppliers to the Parties or other third parties who may have disclosed or entrusted the same to either of the Parties.
Exclusivity
The relationship of the Inspector with WGC is exclusive, and the inspector may not establish any relationship with any other firm to complete such well related services or warranty referrals, or cause a detrimental impact to WGC during the term of this agreement within its service areas as stipulated herein, and as defined in Schedule C. Changes to service area should be reported to and agreed to by WGC. WGC may develop relationships with other Inspectors within or outside of Inspector’s service area; outside of Inspector’s service area, WGC may also develop relationships with other entities which offer similar or identical services.
Non-Solicitation
The Parties agree that during the term of this Agreement and for a period of two years after the termination or cessation of this Agreement for any reason, the Parties will not directly or indirectly recruit, solicit, or hire any employee or consultant of the other Party, or induce or attempt to induce any employee or consultant to terminate his or her employment or consulting agreement or otherwise cease his or her relationship with the other Party. Further, neither party will solicit or induce customers of the services prior to termination for any reason for a minimum period of five (5) years following the effective date of termination.
The parties further agree not to compete with each other, directly or indirectly, including providing consultative services to any other party in the establishment of an entity in similar business to WGC (for Inspector) and Inspector (for WGC), for a period of 24 (twenty-four) months after written notice of this termination of this agreement is received by either party and for any reason.
Dispute Resolution
Any controversy, claim or other dispute arising out of this Agreement or relating to the subject matter hereof shall be decided by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association unless the Parties agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrator shall be final and binding on all Parties, and judgment may be entered thereon in any court having jurisdiction thereof. Arbitration shall be held in Maryland. The prevailing party will be reimbursed its reasonable attorney’s fees and costs incurred as a result of the arbitration.
Waiver of Jury Trial
Each of Inspector and WGC hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding relating to this Agreement and for any counterclaim therein.
Notices
Any notice or communication required or permitted to be given hereunder shall be in writing and, except as otherwise expressly provided in this agreement, shall be deemed given and effective (a) when delivered personally, or by electronic mail or by telecopier, or (b) when received if sent by overnight express or mailed by certified, registered or regular mail, postage prepaid, addressed to parties at their address stated below, or to such other address as such party may designate by written notice in accordance with the provisions of this Section. Notices to WGC shall be delivered to CEO, Well
Guardian Corp., 3869 Floating Bridge Trail Wilmington NC 28412. Notices to Inspector shall be delivered to the mailing address of the Inspector, as provided in the appropriate fields in the electronic form completed by the Inspector.
Entire Agreement
This Agreement constitutes the entire and only Agreement between the Parties relating to Joint Marketing and Co-Development of products, and all prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements amending, altering, or supplementing the terms hereof may be made except by means of a written document signed by a duly authorized representative of each Party.
Governing Law
This Agreement will be governed by and construed and enforced in accordance with the laws of the state of Maryland, excluding its principles of conflicts of law. Except as provided otherwise herein, or by mutual agreement of the parties, courts of or in Maryland will have nonexclusive jurisdiction over any disputes under this Agreement. Service of any action or proceeding in any of such courts by either party hereto may be made upon the other, by registered mail, return receipt requested, at its address given herein.
Independent Contractors
For the purposes of this Agreement and all services to be provided hereunder, each shall be, and shall be deemed to be, an independent contractor and not an agent, partner, or employee of the other Party. Neither Party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other Party, except as may be explicitly provided for herein or authorized in writing.
Severability
If any provision of this Agreement shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall either be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
No Waiver
Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right, or the ability to later assert that right relative to the particular situation involved, or to terminate this Agreement arising out of any subsequent default or breach.
Limitation of Liability
Neither Party shall be liable to the other Party for indirect, incidental, or consequential damages arising out of any of the terms or conditions of this Agreement or with respect to its performance or lack thereof.
To the fullest extent permitted by law, and not withstanding any other provision of this Agreement, the total liability, in the aggregate, of either Party to this agreement and all of its officers, directors, partners, employees and consultants, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and all litigation fees and costs of any nature whatsoever or claims expenses resulting from or in any way related to the subject or services under this Agreement from any cause or causes shall not exceed the total gross revenue received pursuant to this Agreement over the 12 month period just preceding any claim raised or filed against a Party. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
Goodwill and Promotion of Business
The Parties shall at all times adhere to the highest standards of integrity and fair dealing in all aspects relating to the promotion of Inspector and WGC.
Limitations and Restrictions
This provision should recognize the possibility that a change of scope or change of responsibility may occur during the term of the Agreement and that any amendment of terms would need to occur by mutual written agreement.
Warranty Disclaimer
The Parties make no express or implied warranty, including, without limitation, any implied warranty of merchantability or any implied warranty of fitness for a particular purpose with respect to any of the Services or any components thereof or any licensed products, and hereby disclaims the same.
The Parties make no express or implied warranty that the manufacture, use or sale of any Service will not infringe any patent or other right of any party, and hereby disclaims the same.
Successor and Assigns
This Agreement shall inure to the benefit of, and be binding on, the Parties hereto and the subscribers hereof, and their heirs, successors, representatives, assigns, and transfers where the same is not prohibited by the provisions hereof.
Other Matters
(a) The restrictions set forth in this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by the Parties to be reasonable for such purpose. The Parties agree that any breach of any term set forth under this Agreement is likely to cause the Parties substantial and irrevocable damage and therefore, in the event of any such breach, the Parties agree, in addition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.
(b) The parties have each had the opportunity to seek independent counsel to advise them on their rights and responsibilities under this Agreement prior to execution.
Force Majeure
Neither Party shall be liable for or deemed to be in default or otherwise liable for any delay or failure to perform any act under this Agreement, directly or indirectly, from Acts of God, civil or military authority, acts of a public enemy, acts of terrorism, war, accidents, fire, explosion, earthquake, flood, failure of transportation, strikes, labor dispute or other work stoppage by either Party's employees, or any other cause beyond the reasonable control of such Party.
Use of Trademarks and Trade Names
The Parties agree to cross-license the use of each other’s Trademarks and Trade Names for the purpose of marketing and selling Services. The Parties agree to obtain the other Party’s written approval authorizing the specific application and use of the other Party’s Trademarks and Trade Names on a case-by-case basis.
Except as otherwise provided herein, this Agreement does not confer any rights to use in advertising, publicity or other marketing activities any name, trade name, trademark, or other designation of either party hereto, including any contraction, abbreviation, or simulation of any of the foregoing, without prior written agreement, and each party agrees not to use or refer to this Agreement or its terms in any such activities without the express written approval of the other Party.
Waiver and Indemnification
To the maximum extent allowed by law, each of the Parties will indemnify and hold harmless the other Party and its directors, officers, employees, and agents from and against any and all third party claims (including those made by a party’s directors officers and employees), losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred in responding to such Claims, that the Party may suffer or incur arising out of or in connection with (a) the other Party’s negligence, willful misconduct, or breach of any representation, warranty, or other obligation under this Agreement; (b) any allegation that the other Party’s use of products or services in accordance with this Agreement infringes or violates any patent, copyright, trade secret, trademark, or other third party intellectual property right; or (c) any personal injury (including death) or damage to property resulting from the other Party’s or its agents’ acts or omissions. The Parties agree to give prompt notice of any Claim asserted against it which may give rise to this provision, to the other Party, and the other Party will defend the indemnified Party upon its request. If either Party is subject to a claim that use of its products or services infringes or violates any patent, copyright, trade secret, trademark, or other third-party intellectual property right, that Party will, at its expense (a) procure the right to continue using such product or services on behalf of the other Party; or (b) replace or modify the product or services so that use of such product or services becomes non-infringing.
SCHEDULE A – RESPONSIBILITIES
Inspector Responsibilities
• Confirm that they (for any individual associate completing any inspection) are appropriately licensed and credentialled to complete well inspections in their target geographic markets based on State and Local regulations.
• Complete well inspections (as a new service/revenue stream) in full compliance with the intent of WGC standards to determine that the well is fully functional with no discernible defect as of the time of the inspection, and complete reports completely and accurately as designed by WGC. Prices for such services may be set by the Inspector but must always include referral to WGC for eligible well inspections completed.
• Based on such inspections, provide WGC with qualified leads captured during our home inspection and other relevant inspection services in territories serviced by both parties. ”Qualified leads” includes inspection clients who, within 60 days of inspection, purchase and take possession of the home inspected and having a well, and whose client provides accurate and current contact information (name address, phone and e-mail information) through an activation/opt in mechanism.
• Promote WGC available products in home inspection and other relevant inspection services reports in territories serviced by both parties in manner(s) approved by WGC.
• Promote WGC on the Inspector website and in Inspector marketing emails to brokerages and real estate agents in territories serviced by both parties in manner(s) approved by WGC.
• Promote WGC in office presentations to brokerages and real estate agents in territories serviced by both parties in manner(s) approved by WGC.
WGC Responsibilities
• Provided that Inspector produces at least 50 referrals per year, promote Inspector on the WGC website and in WGC marketing emails to brokerages and real estate agents in territories serviced by both parties. in manner(s) approved by Inspector
• Remit marketing fees to Inspector (see Schedule B).
• WGC may offer or agree to financially support sales and promotions programs, including but not limited to contests, additional cash incentives or other programs, as agreed to in writing prior to the initiation of any such campaigns.
SCHEDULE B – Marketing Fees
Inspector will provide WGC with complete inspection reports and resulting qualified leads to their WelGard Protection Plan Membership level only. A qualified lead includes contact name, property address, phone number, email address, and estimated settlement date for a property with a properly functioning well as identified by Inspector during its home inspections and other relevant inspections. Such qualified lead must be included in the geographic areas as authorized by WGC and defined in Schedule C of this Agreement, and the purchase transaction related to such inspection must be consummated within 60 (sixty) days of the inspection.
For each prospective member who activates (clicks, taps or opts in) on our co-branded WelGard promotion page in the customer report, or client report portal, to register for a six-month free WelGard Protection Plan, WGC will provide WelGard® Protection Membership, subject to the criteria of the preceding paragraph. Those not activating or opting in may be solicited by WGC but will only be provided “Support Services” as defined at www.wellguardian.us/membership and no fee will be due to Inspector.
For each member sourced by Inspector, who WGC successfully converts to a WelGard® Protection Membership after the six months free period (or earlier), WGC will pay the named Inspector or its designee a marketing fee of $150 per paid WelGard® Protection membership.
WGC will pay Inspector or its designee quarterly on or before the 15th day of each month following the immediately preceding calendar quarter, e.g., second quarter from April 1 to June 30 will be paid on or before July 15. Payment shall be by check, or as mutually agreed.
SCHEDULE C – Inspector Service Areas
Inspector will complete inspection services and make referrals of qualified leads for the term, and under the conditions as defined, in the selected service areas as per the form, and may be modified by notice in writing to WGC.
SCHEDULE D – Just cause
The following are intended to provide definition of legal “just cause” by example and include, but are not limited to:
• Breach of the Agreement in any regard by either Party, with written notification that is not cured within 30 days of such notice.
• Bankruptcy of either Party
• Liquidation or sale of substantially all of the asset of the Parties (including change of control)
• Failure to pay referral fees or other transactional costs.
• Failure to achieve minimal referral production by Inspector (2 per month)
• Dishonesty
• Conflict of interest
• Member relations impairment or interference
• Instances of slander or libel as reported by anyone, upon verification.
• Willful misconduct
• Poor or deteriorating business reputation.
