THIS REFERRAL AGREEMENT (this “Agreement”) is made by and between Natomas Labs, Inc. d/b/a Habitat, a Delaware corporation (the “Company”) and the undersigned, an individual (the “Representative”), effective as of the date of the last signature set forth below.
Company is a licensed California manufactured home dealer that is engaged in the business of providing California homeowners and other California property owners with market-based expertise, services and assistance in acquiring and installing manufactured homes on their property as accessory dwelling units (“ADUs,” or, individually, an “ADU”).
Company desires to retain the services of Representative to promote and sell Company’s ADU services to property owners.
Representative desires to market Company’s ADU services to property owners all in accordance with the terms and conditions of this Agreement.
THEREFORE, it is agreed as follows:
Appointment of Representative. Company hereby appoints Representative as a non-exclusive authorized representative to market and promote Company’s services of acquiring and installing ADUs in the state of California (the “Territory”). The Representative understands that this appointment is not geographically exclusive, and Company reserves the right to retain additional representatives to promote and sell to property owners in the Territory.
Representative’s Duties. Representative will use commercially reasonable efforts, and skill as is necessary, to market and promote the sale of Company’s ADU services in the Territory during the term of this Agreement. Representative’s marketing and promotional efforts shall be directed toward residential real estate owners. These efforts shall include introducing Company’s ADU services to customers and referring customers to Company.
Company will provide Representative with marketing collateral and other materials for promoting and selling Company’s ADU services. Representative shall not alter or modify the marketing materials which will include Company’s logo and trademark. Company hereby grants to Representative a non-exclusive license to use Company’s trademarks, logo, and name for the benefit of Company, strictly in accordance with this Agreement and solely in connection with Representative’s duties pursuant to this Agreement. Any materials that are used by or for Representative to advertise, promote, or otherwise reference the Company’s ADU services are subject to prior written approval of the Company in its sole discretion. Except for the license set forth herein, Representative hereby acknowledges and agrees that Representative has no further right or interest in such marketing materials or any other intellectual property of Company.
Representative is not authorized to enter into any contract with a customer or bind Company in any way except as provided herein. Representative shall not provide any proposals or estimates to any customer or potential customer for any ADU service or project. Representative is not authorized to extend any warranty or to make representations, warranties or claims with respect to Company’s ADU services without prior written approval from Company.
Before paying the Referral Fee (as defined below) to Representative, and as a condition precedent to Representative receiving a Referral Fee for Company’s sale of ADU services to a customer under an applicable customer agreement, Company may verify that a customer was, in fact, referred to Company by Representative. Such verification activities include, without limitation, confirming with the customer that the Representative introduced the Company to such customer or otherwise requiring that Representative furnish written evidence reasonably satisfactory to Company verifying that the customer was referred by Representative to Company.
Nothing in this Agreement or otherwise obligates Company to offer or sell any of its products or services or consummate any transaction with any prospective customer referred to Company by Representative. Company retains sole and absolute discretion regarding the terms and conditions (including, without limitation, pricing) under which Company offers its products and services to its customers.
For each sale of Company’s ADU services of acquiring and installing an ADU onto a customer’s property, Representative will receive Two Thousand Five Hundred Dollars (2,500) (the “Referral Fee”). The compensation will be deemed earned by Representative when the customer has completely paid Company for the installation of the ADU (“Completion Date”). The compensation will be paid to Representative within thirty (30) days from the Completion Date.
Representations and Warranties.
Representative hereby represents and warrants to Company that: (a) Representative has the full power and authority to enter into and perform their obligations under this Agreement, and (b) when executed and delivered by Representative, this Agreement will constitute the legal, valid, and binding obligation of Representative, enforceable against Representative in accordance with its terms.
The Term of this Agreement shall be for one (1) year commencing on the Effective Date, unless otherwise terminated by either party with thirty (30) days’ written notice; provided however, this Agreement will terminate automatically upon the filing of a petition for voluntary or involuntary bankruptcy or upon the insolvency of either party.
Representative shall indemnify, defend and hold harmless Company, its stockholders, directors, officers, and employees against any and all losses, liabilities, claims, suits, demands, causes of actions, complaints, damages, judgments, penalties and costs, including reasonable attorneys’ fees and costs, arising from or resulting from Representative’s breach of any provision in this Agreement, or any negligence or willful misconduct by Representative.
Disclaimer of Liability.
Company makes no warranty and disclaims any and all express or implied warranties regarding its services. Company is not liable for the acts or omissions of the customer’s contractors, and for any delays, directly or indirectly, caused by any governmental agencies. Accordingly, Company shall not be liable for any damages, including but not limited to consequential, special or indirect damages for any reason whatsoever. Notwithstanding any provision to the contrary in this Agreement, in the event Company is determined to be liable, Company’s maximum liability shall be Two Thousand Five Hundred Dollars (2,500).
Under no circumstances and at no time shall Representative disclose to any person any of Company’s trade secrets, confidential information, methods or systems used by Company in its business. All prices, processes, data, lists, reports, as well as all other information of any nature made available to Representative by virtue of Representative’s association with Company shall be deemed confidential information and shall be held in strict confidence by Representative. This confidentiality provision shall survive the termination of this Agreement. All confidential information, brochures and marketing collateral in Representative’s possession shall be immediately returned to Company after termination of the Agreement.
This Agreement shall not create a partnership, joint venture, agency, employer/employee or similar relationship between Company and Representative. Representative shall be an independent contractor with a completed W9 on file with Company. Company shall not be required to withhold any amounts for state or federal income tax or for FICA taxes from sums becoming due to Representative under this Agreement. Representative is not an employee of Company and is not entitled to participate in any plan, arrangement or distribution by Company in connection with any pension, stock, bonus, profit sharing or other benefit extended to Company’s employees.
This Agreement nor any duties or obligations under this Agreement shall be assigned by Representative. This Agreement may be assigned by Company to its successor, provided that the successor to Company expressly agrees in writing to assume the obligations and duties of this Agreement.
Any notice, demand or request required or permitted hereunder shall be given in writing at the addresses set forth below by any of the following means: (a) personal service; (b) email; (c) nationally recognized overnight commercial mail service; or (d) registered or certified, first class U.S. mail, return receipt requested; provided, however, that notice may be sent to such other place as a party may from time to time designate in a written notice given to the other party in the manner detailed in this Section 10; provided, however, in no event shall a party’s address for purposes hereof be a P.O. Box. Any notice or other communication will be deemed given on the date of receipted delivery, the date of refusal to accept delivery, or when delivery is first attempted but cannot be made due to a change of address for which no notice was given; except that any notice or communication sent via facsimile or electronic mail, as the case may be, shall be deemed given when transmitted to the facsimile number or e-mail address, as applicable, with proof of transmission, provided that such notice or communication is promptly followed by a copy sent by messenger or overnight courier.
Natomas Labs, Inc.
1 Letterman Drive, Suite C3500
San Francisco, CA 94129
At the address and e-mail set forth on the form.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement, including and together with any related exhibits and attachments constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
No amendment to, modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Successors and Assigns.
Subject to Section 15, this Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
No Third-Party Beneficiaries.
This Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Choice of Law.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America. The exclusive jurisdiction and venue of any action to interpret or enforce this Agreement shall be the City and County of San Francisco, California.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Arbitration of Disputes and Waiver of Jury Trial.
All disputes arising between the parties with respect to the subject matter of this Agreement or the transaction contemplated herein shall be settled exclusively by final, binding arbitration. The judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will proceed in the City and County of San Francisco and be conducted by the American Arbitration Association (“AAA”), or such other administrator as the parties shall mutually agree upon, in accordance with the AAA’s then-applicable Commercial Arbitration Rules (the “Rules”). Any party who fails or refuses to submit to arbitration following a demand by the other party shall bear all costs and expenses, including attorneys’ fees, incurred by such other party in compelling arbitration. Any arbitration will be decided by a single arbitrator selected according to the Rules. The arbitrator will decide any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication and may grant any remedy or relief that a court could order or grant on similar motions. The arbitrator shall apply the provisions of this Agreement without varying therefrom, and shall not have the power to add to, modify, or change any of the provisions hereof. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Commercial Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of commercial dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.