Effective April 24, 2023.
Welcome to Quativa’s Network of Sales Partners! We look forward to a mutually beneficial relationship now that you have completed our electronic onboarding process.
This Sales Partner Agreement and the Sales Partner Terms of Service (collectively, the ”Agreement”) govern the access or use by Sales Partners of the Quativa App, Platform, Sales Partner Portal, and all products and services offered by Quativa, including Quativa’s applications, mobile apps, websites, content, products, and services (the “Quativa Services”).
PLEASE READ THE AGREEMENT CAREFULLY BECAUSE THE AGREEMENT IS A BINDING LEGAL AGREEMENT BETWEEN QUATIVA AND YOU. Any Sales Partner accessing the Quativa Services agrees to be bound by the terms and conditions of this Agreement.
All references in the Agreement to “Sales Partner, “YOU” or “YOUR” shall be a reference to your business. All capitalized terms set forth in this Agreement shall have the same meaning as set forth in the Sales Partner Agreement or Sales Partner Terms of Service.
The effective date of the Agreement is the date you completed the onboarding process and were accepted as a Sales Partner by Quativa (the “Effective Date”). Quativa, Inc. (“Quativa”) and Sales Partner shall be individually referred to herein as a “Party” and collectively as the “Parties.”
Quativa has agreements with licensed contractors (“Network Contractors”) to facilitate, through sales organizations, the solicitation of homeowners to enter into written home improvement product and services contracts, including but not limited to solar, roofing, battery, electrical products and services (“Home Improvement Service(s)”) directly with such Network Contractors (“Contract(s)”). In consideration of the technology and services provided by Quativa under this Agreement, Sales Partner agrees to solicit Contracts utilizing Network Contractors, pursuant to the terms hereof.
(a) Platform and Quativa App. Quativa will provide Sales Partner and its authorized agents and representatives (“Reps”) with access to Quativa’s proprietary software applications to coordinate its sales activities with Network Contractors. Quativa will make available to Network Contractors the ability to Upload (as defined in the Sales Partner Terms of Service) project information (e.g., status updates on the preparation and approval of plans, issuance of permits, the scheduling, commencement, and completion of work and inspections, etc.) (the “Project Information”) through Quativa’s proprietary software platform (“Platform”) and proprietary software application (“Quativa App”).
(b) Quativa Services. The Quativa Services are provided “as is” and “as available,” and Quativa disclaims all representations and warranties, whether express, implied or statutory, not set forth in the Sales Partner Agreement and Sales Partner Terms of Service, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Quativa makes no representation, warranty or guarantee regarding the reliability, timeliness, quality, suitability, sustainability or availability of the Quativa Services, or any products or services requested through the use of the Quativa Services, or that the Quativa Services will be uninterrupted or error-free.
Sales Partner warrants and represents to Quativa that it is experienced in home improvement sales and skilled in the marketing of Home Improvement Services. Sales Partner shall utilize commercially reasonable efforts to market, promote and generate homeowner interest in Home Improvement Services (“Customer Lead(s)”) for the benefit of the Network Contractors. Sales Partner expressly warrants and represents to Quativa that Customer Leads and Contracts: (a) will be generated solely through Sales Partners’ efforts, and (b) will not be generated through illegal or unlawful incentives, inducements, representations, promises or other means.
(a) Sales Partner Fees. In order to access and train in the Quativa App and Platform, Sales Partner shall pay the following fees to Quativa, as updated from time to time, on www.Quativa.com/SalesPartnerPortal (the “Quativa Portal”): (1) a per month Subscription Fee (the “Subscription Fee”) based on the option selected on the Quativa Portal, and (2) Quativa’s processing fee based upon the processing fee per watt specified on the Quativa Portal multiplied by the number of watts (the “Processing Fee”). The Subscription Fee and the Processing Fee shall be collectively referred to as the “Sales Partner Fees.” Sales Partner Fees may be updated by Quativa from time to time, effective upon 60-day notice. Sales Partner Fees will be debited per the timelines referenced in the Quativa Portal.
(b) Customer Lead Screening. Sales Partner shall pre-screen each and every Customer Lead and only present those prospects to Network Contractors that are ready, willing and able to enter into a Contract with a Network Contractor.
(c) Customer Solicitation with the Quativa App. Sales Partner shall utilize the Quativa App to solicit Customer Leads to contract for Home Improvement Services: (i) for the price per watt specified on the Quativa Portal multiplied by the number of watts (the “Solar Installation Fee”), (ii) for the price of Adders, as defined in Section 2(c)(1), (iii) for a Subscription Fee, and (iv) for a Processing Fee. Customer Leads that subsequently enter into Contracts with Network Contractors shall be referred to as “Customer(s).” Any Home Improvement Services under a Contract shall be referred to as a “Project.”
(1) Adders. Pricing for optional and non-optional additions to the scope of work for Home Improvement Services, shall be referred to as “Adder(s).” Adder costs shall be listed in Quativa’s “Adder Sheet,” which Network Contractors may update and modify from time to time in its sole and absolute discretion. The Adder Sheet and any updates thereafter will be available within the Quativa App or Platform or at Quativa.com/adders, as made available by Network Contractors and confirmed by Quativa. Adders may be applied to the cost of the Project regardless of whether Adders are elected within the Quativa App as of the effective date of the Contract. If the Adder Sheet does not contain an Adder cost, the Network Contractor will later provide Sales Partner with the price and/or any bids for such work.
(2) DaaS Credits. If Quativa provides Sales Partner with a DaaS (Design as a Service) credit, such DaaS credits are non-transferable and Quativa has a right to revoke such DaaS credits if not used within sixty (60) days.
(3) Pricing Discrepancies. In the event of a discrepancy between pricing set forth in the Quativa App and pricing provided by a Network Contractor, the pricing provided by the Network Contractor shall prevail. Should there be a discrepancy between pricing set forth in the Quativa App and pricing provided by a third-party vendor, the pricing provided by the third-party vendor shall prevail.
(d) Sales Partner Services. Sales Partner (including all Reps) shall provide all services described in this Paragraph 2, including providing transaction support both prior to and after a Customer has fully executed a Contract with a Network Contractor. Sales Partner shall continue to provide Contract support by: (1) proposing available onsite appointment time frames for site surveys, required images and events requiring scheduling with the applicable Network Contractor; and (2) communicating with Customers as necessary at the request of the Network Contactor, Customer, or Quativa. Sales Partner’s covenants, warranties and representations in this Paragraph 2 shall be referred to collectively as the “Sales Partner Services”.
(e) Compliance by Reps. Since Reps are not a Party to this Agreement, strict adherence by Reps to the terms and conditions of this Agreement shall be the sole responsibility of the Sales Partner that has engaged Reps to perform Sales Partner Services. Any breach of this Agreement by a Rep shall constitute a breach of this Agreement by the Sales Partner that has engaged the Rep.
(f) When using the Quativa App to provide Sales Partner Services, Sales Partner shall do so exclusively for Network Contractors.
(g) Sales Partner, through the Quativa App or Quativa Portal, or any other method required by Quativa and the Network Contractor, shall contract directly with Network Contractors with regard to their final pricing, duties and responsibilities to one another, referred to as (the “Dealer Agreement”).
(a) Commission Payment. Sales Partner understands and agrees that payment for any and all services rendered (the “Commission”), shall be governed and paid by the terms of the Dealer Agreement between Sales Partner and Network Contractor. Quativa shall have no obligation to compensate Sales Partner under this Sales Partner Agreement.
(b) Automatic Payment Authorization. The Sales Partner Fees shall be automatically charged from Sales Partner’s selected payment method when due. In order to facilitate the automatic charges, Sales Partner shall maintain an active payment method through Stripe or similar service, as designated by Quativa (“Payment Processor”). Sales Partner shall notify Quativa within three (3) business days of any changes to the information in the Payment Processor data and cooperate with Quativa to diligently update the Payment Processor data so that it is always current.
This Agreement shall initially be for a period selected by Sales Partner (unless the Agreement has been terminated in the manner provided in this Section 4) in the Quativa Portal and shall commence on the Effective Date (the “Term”). The Term may be updated from time to time with the mutual consent of the Parties, in the Quativa Portal. The Term selected by Sales Partner and approved by Quativa will determine the Sales Partner Fees. Sales Partner may only terminate this Agreement by providing Notice not more than (60) days and not less than thirty (30) days prior to the expiration of the Term. The Term shall automatically renew for the same period specified (or as updated in the Quativa Portal) unless Sales Partner transmits Notice of termination in a timely manner. Quativa may: (a) terminate this Agreement for any reason, including during the Term, effective upon thirty (30) days written notice, and (b) immediately terminate this Agreement in the event of a material breach of this Agreement. Notice shall be transmitted in the manner specified in the Sales Partner Terms of Service. Upon termination of this Agreement, Sales Partner’s access and license to the Quativa App, Platform, and Quativa Portal shall be immediately terminated by Quativa. Additionally, Quativa may, in its sole and absolute discretion, immediately suspend or terminate Sales Partner’s access to the Quativa App, Platform, and Quativa Portal if Quativa determines that Sales Partner has improperly used the same, including, without limitation, to circumvent the intents and purposes of this Agreement.
The Sales Partner Terms of Service are an integral part of this Sales Partner Agreement and incorporated by reference into this Sales Partner Agreement in their entirety to form one Agreement. The Sales Partner Agreement and the Sales Partner Terms of Service, including any terms in the Quativa Portal that may be updated by Quativa from time to time, set forth the entire agreement of the Parties hereto in respect to the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations, or warranties between the Parties, whether oral, written, or implied. Quativa reserves the right to modify the Sales Partner Agreement and Sales Partner Terms of Service from time to time, in Quativa’s sole discretion. Any changes shall be effective thirty (30) days following notification to Sales Partner via the Quativa App, Platform and/or Sales Partner Portal. Sales Partner’s continuing access or use of the Quativa Services following the effective date of any changes shall constitute YOUR agreement to any modifications to the Sales Partner Agreement and Sales Partner Terms of Service. In the event of a conflict between the language of this Sales Partner Agreement, Sales Partner Terms of Service and Quativa Portal, and the language of any prior agreement between Sales Partner and Quativa, this Sales Partner Agreement, Sales Partner Terms of Service and Quativa Portal shall prevail. Updated information in the Quativa Portal shall supersede and prevail over any information in the Quativa Portal that is prior in time.
TS.1. Additional Provisions re: Use of Software Platform and Quativa App. Sales Partner will have the ability to provide its administrators and Reps access to the Quativa Services, including the Quativa App, Platform and Sales Partner Portal pursuant to a limited revocable, non-exclusive and non-transferable license granted by Quativa. Sales Partners shall be solely responsible for establishing and maintaining data network connectivity and access to the Quativa App, Platform and Sales Partner Portal, at Sales Partner’s sole cost and expense. The mobile applications and related services (each, an “Application”), which enable users to (i) manage homeowner data and schedule homeowner contact, (ii) create proposals for Home Improvement Services, (iii) connect to utility usage information, (iv) compare finance options, (v) apply for finance credit, (vi) provide direct payment options, (vii) generate initial loan documents and home installation agreements, (viii) manage team members and statistics, and (ix) provide additional support services to sell Home Improvement Services, including with third party providers of such services and goods, under agreement with Quativa or certain of Quativa’s affiliates and preferred vendors (“Third Party Providers”). Quativa makes no warranties, representations or guarantees concerning Third Party Providers and expressly disclaims any and all liability for products and services provided to Sales Partner or Customers by Third Party Providers.
(a) Uploads to the Platform. “Upload” or “Uploaded” means to upload or transmit information or documents to the Quativa App or Platform.
(b) Uploads of Project Information. Quativa makes no warranties or representations regarding the accuracy or completeness of Project Information Uploaded to the Quativa App. It shall be the responsibility of Sales Partner to solicit and verify the accuracy of any Project Information required by Sales Partner to perform the Sales Partner Services. Sales Partner is authorized to solicit Project Information from Customer Leads, Network Contractors, or Customers.
(c) Customer Deliverables. For each Contract, Sales Partner shall Upload the following accurate information and documents (“Deliverables”) by using the Quativa App or Platform: (a) full name of person(s) on title and property address; (b) financing source approval (with all funding conditions and Lender requirements having been satisfied); (c) executed Contract; (d) disposition sheet (containing the scope of work, Customer’s phone number and email, financing information, etc); (e) most recent utility bill with electricity usage trend; (f) site inspection date (if not scheduled by the Network Contractor), (g) roof layout drawing and/or plans displaying the proposed System placement, and (h) related Customer Information and Deliverables that have been requested by the Network Contractor or Quativa. Sales Partner shall respond to any communications from Quativa, the Network Contractor, or Customer.
(d) User Accounts. Sales Partners and Reps shall register for and maintain an active personal user Services account (“User Account”) in order to access the Quativa Services. User Accounts shall only be established for individuals over the age of 18 and shall be non-transferable. Sales Partner and Reps shall provide and regularly update all required information to maintain a User Account and shall be solely responsible for the security and secrecy of identifiers and passwords for the User Account. Sales Partners and Reps shall access, maintain and utilize the User Account in accordance with all applicable laws and shall not interfere with the provision of Quativa Services or the business of Third Party Providers.
TS.2. Additional Provisions re: Sales Partner Services Including Contract Reviews.
(a) Contract Reviews. The Sales Partner shall continue to facilitate communications between the Customer Lead and the Network Contractor until a Contract is fully executed, and after Contract is executed at the request of Quativa or Network Contractor. Sales Partner shall inform the Customer Lead that the Network Contractor is under no obligation to accept any proposal or to enter into a Contract with the Customer Lead. The Network Contractor shall complete Contract Review following completion of the site survey. “Contract Review” means the Network Contractor’s review of financing, system size, verification that the system design meets production needs, that shading is accounted for, and confirmation of any other pre-installation services necessary to complete the installation. Following its Contract Review, the Network Contractor shall approve the proposed Contract, with or without modification or qualification to the proposed Contract, or decline the proposed Contract for any reason (e.g., MPU needed, unpermitted structure, specific roof condition, design production parameters, downsize system due to available roof space, etc.). The Network Contractor and/or Quativa shall reserve the right to reject any proposed Contract in its sole and absolute discretion at any time, and in such event, Sales Partner shall not be entitled to an advance, Commission, or any payment whatsoever. Quativa shall have the right (but not the obligation) to identify an alternate Network Contractor willing to accept the proposed project and request Sales Partner to work with the Customer Lead with the objective of signing a new Contract.
(b) Materials. In all solicitations of Customer Leads, Sales Partner shall disclose that contracted Home Improvement Services shall utilize Quativa’s approved materials list in effect at the time of the sale and available within the Quativa App. Network Contractors or Quativa may from time to time substitute equivalent materials, equipment and methods.
(c) Quativa’s Proprietary Rights. Sales Partner shall acquire no right, title, or interest in any Quativa intellectual property and/or Quativa marketing or promotional materials including, without limitation, materials protected or subject to intellectual property rights or ownership, such as the Platform or Quativa App owned by Quativa and used by Sales Partner. Sales Partner agrees not to engage in any of the following activities: (1) remove any proprietary notices regarding Quativa’s intellectual property, (2) reproduce, modify or commercially exploit Quativa’s intellectual property, (3) reverse engineer Quativa’s intellectual property, (4) prepare derivative works from Quativa’s intellectual property, (5) data mine Quativa’s intellectual property, or (6) facilitate unauthorized access to or impair any aspect of Quativa’s intellectual property.
TS.3. Indemnification and Limitation of Liability. Sales Partner agrees to defend, indemnify, and hold harmless Quativa, Customer Lead and Customer, and their respective officers, directors, shareholders, managers, members, employees, contractors, affiliate and subsidiary companies, agents and representatives, and each of them, from and against any and all losses, liabilities, damages, costs, expenses, charges, fines, penalties, and assessments (including, without limitation, any proceeding or action commenced by any of Sales Partner’s employees, agents, contractors, or Reps), based upon or arising out of: (i) the conduct of Sales Partner’s business (including any Reps or other representatives of their company) or performance of Sales Partner’s obligations pursuant to the Sales Partner Agreement and these Sales Partner Terms of Service, (ii) any Sales Practices Issue, and/or (iii) any act or omission of Sales Partner or any of Sales Partner’s officers, directors, shareholders, managers, members, employees, contractors, agents and representatives, and each of the them, related to or arising out of the Sales Partner Agreement and these Sales Partner Terms of Service and/or the breach thereof. Additionally, without limitation as to the foregoing, Sales Partner shall be solely responsible for any physical or other injuries to persons or damage to property arising out of or related to the services provided by Sales Partner hereunder, and Sales Partner shall indemnify Quativa, Customer Lead and Customer, and each of them, from any such injuries or damages (including but not limited to attorneys’ fees and out of pocked costs incurred). Additionally, Sales Partner agrees to limit any liability of Quativa to Sales Partner to any amounts paid to Quativa by Sales Partner in the 6-month period prior to the presentation of Sales Partner’s claim. Quativa shall have absolutely no liability for any other losses sustained or allegedly sustained by Sales Partner, including but not limited to property damage, personal and bodily injuries, lost data, lost profits, delays, loss of actual or prospective business, loss of employees or Reps and/or special, incidental, consequential, indirect, direct, general or special damages to Sales Partner. Quativa makes no warranties or representations regarding Lender, Network Contractors (or their sub-contractors), Third Party Providers or any other contractors and expressly disclaims and shall have no liability to Sales Partner, Customer Lead, Customer or otherwise for negligent acts, errors or omissions of Lender, Network Contractor or any other contractor the Sales Partner or Customer contracts with. The provisions of this Section TS.3 shall survive termination of Sales Partner Agreement.
TS.4. Representations. Each Party represents, warrants, and covenants to the other Party that it: (a) is an entity duly organized, validly existing and in good standing under the laws of all territories in which they will conduct business, and has all requisite power and authority and all authorizations, licenses, and permits necessary to carry on its businesses as now conducted and as presently proposed to be conducted; (b) has all requisite corporate power and authority to enter into the Sales Partner Agreement and these Sales Partner Terms of Service and to perform its obligations hereunder; (c) shall at all times act in good faith in carrying out its obligations under the Sales Partner Agreement and these Sales Partner Terms of Service; (d) shall comply with all applicable laws, and; (e) by entering into and performing the Sales Partner Agreement and these Sales Partner Terms of Service will not breach any confidentiality, trade secret, intellectual property rights, or valid restrictive covenants, concerning any third party.
TS.5. Sales Partner’s Reps. Sales Partner shall hire, supervise, direct, activate, deactivate, and discharge all employees and Reps of Sales Partner, and all persons otherwise retained or affiliated with Sales Partner to perform the Sales Partner Services, each of whom shall be suitably skilled, experienced, trained, and qualified. Quativa shall have no responsibility for the selection, training, direction, employment, payment, or coordination of any Reps. Sales Partner is and shall remain fully responsible and liable for the acts and omissions of, and the performance of, each Rep and for their compliance with the terms and conditions of the Sales Partner Agreement, including these Sales Partner Terms of Service. Nothing contained in the Sales Partner Agreement or these Sales Partner Terms of Service shall create any contractual or employer-employee relationship between Quativa and Sales Partner and/or any Rep. Without limitation as to the indemnity provisions contained in Section TS.3 of these Sales Partner Terms of Service, Sales Partner agrees to defend, indemnify, and hold Quativa harmless from any claims made against Quativa by any Rep for advances, Commissions, expenses, reimbursement, compensation, payments, wages, penalties, or employee benefits of any nature or sort. The provisions of this Section TS.5 shall survive termination of the Sales Partner Agreement.
TS.6. Compliance with Laws/Sales Practices. Without limitation as to the other provisions contained herein, Sales Partner covenants, warrants, represents and agrees that Sales Partner and its Reps will comply with all federal, state, and local laws, regulations, rules, requirements, and ordinances (“Laws”) relating to the provision of the Sales Partner Services, including, without limitation, any Laws applicable to telemarketing, door-to-door solicitations and/permits and/or insurance required in connection with the same. Additionally, Sales Partner and its Reps shall provide the Sales Partner Services in a strictly honest, legal, and ethical manner and shall not, without limitation, make any promises, representations, warranties, or guarantees which are false or misleading, or inconsistent with or beyond those contained in the Contract.
(a) Definition of Confidential Information. “Confidential Information” shall mean all business and technical information disclosed directly or indirectly in writing, orally, or by inspection of facilities or tangible objects including without limitation, data and information pertaining to or regarding business plans, operations, products, pricing, marketing, financing, funding, costs, sales, strategies, contracts, suppliers, equipment, partners, employees, know-how, training, trade secrets, methods, processes, technology, computer programs (including, without limitation, functionality and code), and software, including, without limitation, any of the foregoing associated with the Platform, Quativa App and Quativa Portal. Confidential Information also includes other non-public information obtained from third parties which the disclosing party treats as confidential. Confidential Information shall include any information developed by reference to or use of any such confidential or proprietary information or materials.
(b) Treatment of Confidential Information. A party receiving Confidential Information shall treat it as confidential and shall not use such Confidential Information except as expressly permitted under the Sales Partner Agreement or these Sales Partner Terms of Service or as directed by the Party supplying said Confidential Information. Without limiting the foregoing, the Party receiving Confidential Information shall use at least the same degree of care it uses to prevent the disclosure of its own Confidential Information of like importance, but in no event less than reasonable care, to prevent the disclosure of the Confidential Information it receives.
(c) Exclusions. Confidential Information shall not include information that: (i) was independently developed or conceived by the Party receiving the Confidential Information without use or reference to Confidential Information provided by the other Party, as demonstrated by the written records of the Party receiving Confidential Information; or (ii) became known to the Party receiving Confidential Information, without restriction, from a third party who had a right to disclose it without violation of any obligation of confidentiality (e.g. homeowner data, utility bills and, utility usage), or (iii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the Party receiving Confidential Information or of its affiliates.
(d) Compelled Disclosure. The restrictions set forth in this Section shall not apply to Confidential Information that is required to be disclosed by a Party receiving Confidential Information pursuant to an order or requirement of a court, administrative agency, or other governmental body; provided, however, that the Party receiving the Confidential Information shall, where permitted by law, provide prompt prior notice thereof to the other Party describing in all reasonable detail all Confidential Information to be so disclosed, and shall use all reasonable efforts and cooperate with the other Party, at the other Party’s expense, to obtain a protective order or otherwise prevent disclosure of such Confidential Information.
(e) Return of Confidential Information. Upon expiration or termination of the Sales Partner Agreement for any reason, each Party shall promptly return to the other Party all Confidential Information of the other Party, including all copies thereof, under its possession or control, or destroy or purge its own system and files of any such information and deliver to the other Party, upon written demand, a written certificate signed by an officer of such Party that such destruction or purging has been carried out.
(f) Non-Use. The Parties agree that they will not use the Confidential Information of the other Party except as permitted by the terms of the Sales Partner Agreement and these Sales Partner Terms of Service.
(g) Customer Information. The Parties understand and agree that Customers and Customer Leads will provide confidential personal information which will be exchanged between Sales Partner, Lenders, Quativa, and Network Contractors, which includes, but is not limited to credit reporting, financial information, social security and driver’s license numbers, among other things. The Parties agree to abide by consumer privacy laws with respect to this confidential information and agree that specific information related to closed sales is also Confidential Information, including, without limitation, system pricing.
(h) Non-Disparagement. Quativa and Sales Partner agree to seek to address and resolve any differences or disagreements that may arise between them in an amicable and professional manner, and to that end the Parties agree that they will not make or publish any adverse, disparaging, or other comments about the other, including, without limitation, verbally or in writing, including on any internet or social media websites or platforms. Sales Partner shall ensure that its Reps are compliant with this provision at all times. The provisions of this Section TS.7 shall survive termination of the Sales Partner Agreement.
TS.8. Dispute Resolution. In the event of a controversy, claim or dispute between the Parties arising out of the interpretation or enforcement of Sales Partner Agreement or these Sales Partner Terms of Service, the parties shall first seek to resolve the dispute by a meeting of the principals. If the dispute cannot be resolved through good faith negotiations, the dispute shall be submitted to private mediation in Los Angeles, California presided over by a retired judge or alternative dispute resolution service. The cost of mediation shall be shared equally by the Parties. If mediation is unsuccessful, the dispute shall be settled by final and binding arbitration before a single arbitrator conducted under the auspices of JAMS in Los Angeles, California, pursuant to its Comprehensive Arbitration Rules and Procedures. Sales Partner shall take all steps necessary to ensure that its Reps are equally bound by this dispute resolution provision. This Section TS.8 shall survive termination of the Sales Partner Agreement.
TS.9. Independent Entities. Sales Partner’s relationship with Quativa is that of an independent contractor utilizing the Quativa App and Platform and Quativa Portal only, and nothing in Sales Partner Agreement or these Sales Partner Terms of Service is intended to create, or should be construed as creating a partnership, agency, joint venture, or employer-employee relationship. Sales Partner is solely responsible for and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of advances or Commissions under the Sales Partner Agreement or these Sales Partner Terms of Service and direct agreement with a Network Contractor. Upon Quativa’s request, Sales Partner agrees to provide information necessary for Quativa to demonstrate that Sales Partner is an independent contractor. No part of Sales Partner’s advances or Commissions will be subject to withholding by Quativa for the payment of any social security, federal, state or any other employee payroll taxes.
TS.10. Non-Solicitation. To the maximum extent permitted by law, during the Term of the Sales Partner Agreement and for one year thereafter, Sales Partner will not: (a) solicit Quativa’s employees to work for Sales Partner (or any former employees within six months of the termination of their employment with Quativa), or (b) do business directly (i.e., outside the terms of Sales Partner Agreement) with any Network Contractor who Sales Partner was introduced to by Quativa. The parties acknowledge and agree that any violation of this Section TS.10 would subject Quativa to irreparable injury for which monetary damages will not be an adequate remedy. Therefore, in addition to any remedies otherwise available, the non-breaching party will be entitled to any injunctive relief and specific performance to enforce the terms of this Sales Partner Agreement. The breaching party shall pay all reasonable attorney’s fees and court costs, arbitration cost, and/or appeal costs incurred by the non-breaching party should it be necessary for the non-breaching party to enforce the terms of this Section TS.10. Any breach of Section TS.10 of these Sales Partner Terms of Service shall cause any and all payments or Commissions due Sales Partner from any such Network Contractor to be waived and redirected to Quativa. The provisions of this Section TS.10 shall survive termination of Sales Partner Agreement.
TS.11. Non-Exclusivity. Except as specifically provided herein, the Sales Partner Agreement is non-exclusive and both Parties may enter similar agreements with other third parties. Notwithstanding the foregoing, Sales Partner represents that Sales Partner is not and will not become party to any agreement which conflicts with Sales Partner’s duties under the Sales Partner Agreement and these Sales Partner Terms of Service. Sales Partner will provide written disclosure to Quativa of any potential or perceived conflicts of interest that may arise before or during the Term of the Sales Partner Agreement.
TS.12. Expenses. The Parties shall be responsible for the payment of their own costs and expenses incurred in the performance of their respective obligations under the Sales Partner Agreement and these Sales Partner Terms of Service, unless specifically provided for otherwise herein.
(a) Governing Law. The Sales Partner Agreement and these Sales Partner Terms of Service shall be governed by, interpreted and enforced in accordance with the laws of California without reference to conflict of law principles.
(b) Notice. All notices given in connection with Sales Partner Agreement and these Sales Partner Terms of Service shall be in writing and may be sent via: (i) personal delivery with written receipt from the delivering person or entity; (ii) registered or certified mail or recognized overnight courier to the receiving Party’s address designated at time of checkout with Quativa’s Payment Processor; (iii) electronic mail (“email”) to the receiving Party’s email address provided at time of checkout with Quativa’s Payment Processor, (or any email address updated during the Term of the Sales Partner Agreement); or (iv) text message to the receiving Party’s cellular phone number (“Cell Number”) designated at time of checkout with Quativa’s Payment Processor (or any cell number updated during the Term of the Sales Partner Agreement). Notices shall be deemed given upon delivery if personally served. Notices sent by recognized overnight courier or by registered or certified mail shall be deemed given on the third business day following the date sent or on the date of actual receipt, whichever is earlier. Notices sent via email or text message shall be deemed given twenty-four hours after such notice was emailed or texted.
(c) Notice of Adder Sheet or Payment Term Changes. Quativa shall be deemed to have given Sales Partner notice of any changes in the Adder Sheet, Payment Sales Partner Terms of Service or Sales Partner Fees (i.e. Subscription Fee and Processing Fee) if Quativa: (i) communicates such changes with Sales Partner, pursuant to any of the notice methods set forth above in Section TS.13(b), or (ii) updates such pricing real time within the Platform, Quativa App, on www.Quativa.com/adders, or dashboard to which Quativa has provided Sales Partner access.
(d) Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of acts of God (fires, flood, storm, earthquakes) or strikes, shortages, riots, insurrection, war, pandemic, governmental action, labor conditions, or any similar cause which is beyond the control of either party (“Force Majeure”).
(e) Assignment. Neither Sales Partner Agreement nor any of the rights, interests or obligations of Sales Partner herein shall be assigned by Sales Partner without the prior written consent of Quativa, which consent may be withheld in Quativa’s sole and absolute discretion. The persons executing the Sales Partner Agreement represents that he/she is authorized to execute on behalf of and to therefore bind the entity, if any, indicated below.
(f) Severability. The invalidity or unenforceability of any provision or provisions of the Sales Partner Agreement or these Sales Partner Terms of Service shall not affect the validity or enforceability of any other provision of the Sales Partner Agreement, which shall remain in full force and effect.
(g) No Waiver. No delay or omission of a Party in the exercise of any right, power or remedy shall impair or operate as a waiver thereof or of any other right, power or remedy.
(h) Headings/Interpretation. The section and subsection headings or captions are for reference only and do not affect the meaning or interpretation of the Sales Partner Agreement or Sales Partner Sales Partner Terms of Service of Service. This Sales Partner Agreement and these Sales Partner Terms of Service were subject to review and comment and is the result of arm’s length negotiations between the Parties, and the parties agree that the Sales Partner Agreement and these Sales Partner Terms of Service shall be construed to have been jointly prepared and any ambiguities shall not be construed against any Party.
(i) Notice to California Consumers. Pursuant to California Civil Code Section 1789.3, users who reside in California are entitled to the following consumer rights notice: If you have a question or complaint regarding the Services, please contact us either via email at firstname.lastname@example.org or via mail at 703 Pier Ave Suite B652, Hermosa Beach, CA 90254. Alternatively, users who are California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs either via mail at 1625 N. Market Blvd., Ste. N 112, Sacramento, CA 95834 or via telephone at either (800) 952-5210 or (916) 445-1254.
BY CLICKING “I AGREE,” YOU ARE NOW A QUATIVA SALES PARTNER AND HAVE CONTRACTUALLY AGREED TO BE A PARTY TO
THE QUATIVA SALES PARTNER AGREEMENT AND SALES PARTNER TERMS OF SERVICE
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