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LW Reseller Agreement - Formstack

Service Contract Reseller

This Service Contract Reseller Agreement (the “Reseller Agreement”) is entered into by and between Porch.com, Inc., a Delaware corporation located at 411 1st Ave S, 5th floor, Seattle, WA  98104 (“Porch”) and the applicable reseller (“Reseller” or “you”).  If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Reseller Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. By placing an Order for Porch Services (defined in Schedule A) to resell to a Service Contract Customer, you indicate your assent to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not place an Order to resell the Porch Services. Porch and Reseller are sometimes referred to individually as a “Party” and collectively as the “Parties.”

Definitions. 

“Brand Elements” means the trademarks, service marks, names, logos, marketing collateral or similar materials provided by Porch for use under this Agreement.

“Effective Date” means the date on which you place an Order to resell the Porch Services to a Service Contract Customer pursuant to this Agreement.

“List Price” means the price listed in Schedule A.

"Order” means an order for the Porch Services submitted by Reseller hereunder, on behalf of a Service Contract Customer, using the quote and order form via Watsco’s OnCallAir or Credit for Comfort platform or other standard ordering process designated by Porch.

“Porch Services” means Porch’s services and offerings, as defined in Schedule A, and as modified from time to time.

“Service Contract Customer” means the end-user customer of the Porch Services.
“Service Contract Terms and Conditions” means the agreement provided to Service Contract Customer by Porch.

Reseller Rights and Responsibilities

Subject to all of the terms and conditions of this Agreement, during the Term, Porch grants to Reseller a one-time, non-exclusive right to resell the Porch Services directly to Service Contract Customers, for the Service Contract Customer’s own use pursuant to the Service Contract Terms and Conditions. All resales are subject to Reseller’s submission and Porch’s acceptance of the applicable Order in accordance with Section 2.6. For clarity, Reseller will not act as a provider of the Porch Services and has no right to rebrand, reframe, operate or control the Porch Services.

During the Term, subject to this Agreement and any quality standards and usage guidelines that Porch specifically prescribes, Porch grants Reseller the right to use Porch’s Brand Elements solely in connection with your authorized resale of the Porch Services. Reseller will promptly cease any use of Porch’s Brand Elements upon request. At no time during or after the Term will Reseller (a) register or acquire any domain names that contain any terms that are the same or similar to the Porch Services, (b) challenge or assist others to challenge Porch’s trademark rights in the Brand Elements or the registration thereof, (c) attempt to register or acquire any trademarks confusingly similar to those in the Brand Elements, or (d) use the Brand Elements except as expressly permitted in this Agreement. Reseller acknowledges that any unauthorized use of Porch’s Brand Elements will constitute a material breach of this Agreement. Except as authorized herein, neither Porch nor Reseller may make any public announcement or other public disclosure about this Agreement or Porch and Reseller’s relationship under this Agreement without obtaining the prior written approval of the other.

The rights granted to Reseller hereunder are non-exclusive and nothing under this Agreement will be deemed to prohibit Porch from entering into any reseller or other agreement with any party anywhere in the world either during or after the Term.

Reseller will not (a) disparage the Porch Services, (b) represent itself as an agent or employee of Porch, (c) engage in any misleading, deceptive, illegal, or unethical conduct in connection with its performance under this Agreement, or (d) make any representations, guarantees, warranties or commitments regarding the Porch Services (i) in addition to or inconsistent with those in the product descriptions provided by Porch with respect to the Porch Services or (ii) on Porch’s behalf. If Reseller breaches this Section 2.4, without limiting its other remedies, Porch may terminate this Agreement with 10 days’ prior notice.

Reseller will represent Porch and the Porch Services in a positive and professional manner at all times. Reseller shall ensure that any personnel who will be performing activities under this Agreement, prior to such performance, have satisfactorily completed a background investigation, reasonable for the given role, and subject to applicable law.

Each Service Contract Customer’s access to and use of the Porch Services is subject to the applicable Service Contract Terms and Conditions. Porch makes any warranties regarding the Porch Services directly to the Service Contract Customer as set forth in the Service Contract Terms and Conditions, and any refund provided as a remedy for such warranties will be provided in accordance with such Service Contract Terms and Conditions. For clarity, Reseller has no authority to (and may not) alter, remove or negotiate the terms of the Service Contract Terms and Conditions.

Representations and Warranties.   

Each Party represents and warrants that (a) it will comply with all laws, rules, regulations and statutes (collectively, “Laws”) applicable to the operation of its business.  Reseller represents and warrants that (a) it has the legal power and authority to enter into and perform its obligations under this Agreement and (b) its execution and performance of this Agreement will not violate any other agreement to which it is a party.

THE PORCH SERVICES ANY SUPPORT AND ALL OTHER SERVICES ARE PROVIDED HEREUNDER “AS IS”. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR OR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

Ownership.

Neither Party grants the other Party any rights or licenses not expressly set forth in this Agreement. The Porch Services (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. Porch has and will retain all rights, title and interest (including all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill and confidential and proprietary information) in and to its Brand Elements (including all goodwill arising from their use), the Porch Services,  any underlying software and all copies, improvements, updates, modifications and enhancements of the foregoing (including any changes which incorporate any Feedback, as defined in Section 4.2 (Feedback)), and Reseller does not acquire any rights of ownership in any of the foregoing.

If Reseller provides Porch with feedback about the Porch Services (“Feedback”), Porch may use the feedback without restriction. For clarity, this use right applies to any Feedback Reseller submits to Porch that was originally provided to Reseller by a Service Contract Customer. All Feedback is provided “AS IS”.

Orders and Payment.

 In order to resell the Porch Services and prior to committing to provide the Porch Services to any Service Contact Customer, Reseller must place an Order specifying the Porch Services that Reseller will resell and the applicable Service Customer and corresponding contact information. No Order will be binding until accepted by Porch in its sole discretion (or otherwise in writing). If an Order is not accepted by Porch, Porch will communicate such rejection to Reseller within 10 days.  Any additional or different terms in Reseller’s order form with the Service Contract Customer will not be binding upon Porch and Reseller will be solely liable for any claims arising from such terms. Accepted Orders are non-cancellable by Reseller, except to the extent otherwise set forth herein or in an Order. Porch may collect and use certain data and information in connection with Reseller’s placement of an Order in accordance with Porch’s Privacy Policy.

Customer Pricing. Reseller will independently determine the pricing at which it offers the Porch Services to Service Contract Customers, but such price may not exceed 10% of the List Price.  Reseller will be solely responsible for collecting the List Price from Service Contract Customers and also for billing, collecting, reporting, and remitting to the appropriate authorities the sales and use taxes applicable to the Service Contracts (except associated premium, procurement, excise, and similar taxes, and related penalties, and/or interest, if any, which will be Porch’s sole responsibility). Porch reserves the right to cancel or suspend provision of the Porch Services immediately with respect to any Service Contract Customer if it fails to receive full payment from Reseller with respect to such Service Contract Customer, or if Reseller fails to comply with this Subsection 6.1.

Indemnification

Reseller will defend, indemnify and hold harmless Porch and its officers, directors, employees, representatives and agents from and against any third-party claim brought against such Porch parties, and any resulting losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees), to the extent arising from or relating to: (a) your breach or alleged breach of this Agreement or your conduct in connection with resale or marketing of the Porch Services or (b) your issuance of any warranty or representation regarding Porch or the Porch Services not specified in the Service Contract Terms and Conditions.

Reseller will be entitled to retain counsel (acceptable to Porch) and control the defense of such third party claims, provided that Reseller will not settle any claim without Porch’s prior written consent. All settlement amounts, costs and expenses will be borne by Reseller.  

LIMITATION OF LIABILITY.

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS AFFILIATES) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS AFFILIATES’) AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $10,000.

“Excluded Claims” means (a) Reseller’s breach of Sections 2 (Reseller Rights and Responsibilities),  b) amounts payable to third parties by Reseller under Section 6 (Indemnification) or (c) either Party’s breach of Section 10 (Confidential Information).

Independent Contractors.  The relationship of Reseller to Porch is that of independent contractor and each party’s obligations to the other are exclusively contractual in nature.  Nothing in this Agreement creates a partnership, joint venture, employer-employee, fiduciary or agency relationship between the parties, or any responsibility by one party for the actions of the other.  Neither party will have any authority to enter into any contract with or otherwise obligate the other to any third party without the express written authorization of the other party. 

Term; Termination

The Agreement shall commence on the Effective Date and continues for an initial term of 12 months and will renew for successive 12-month periods to the extent there is an active Order, unless either Party gives the other Party notice of non-renewal at least 30 days before the current term ends (the “Term”).

Either Party may terminate this Agreement for no reason or any reason upon 30 days’ prior written notice. Either Party may also terminate this Agreement or an applicable Order if the other Party fails to cure a material breach of this Agreement within 15 days after notice of such breach, or as otherwise provided herein. Upon notice, Porch may suspend Reseller’s participation as a reseller for breach of this Agreement or may terminate this Agreement if Porch ceases to offer the Porch Services or determines that termination is necessary to comply with laws or to avoid liability or harm to its services, reputation, Service Contract Customers or users. Except where an exclusive remedy may be specified in this Agreement, termination is not an exclusive remedy, and the exercise by either Party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

Upon any expiration or termination of this Agreement, Reseller will (a) cease to be an authorized reseller of Porch Services, (b) immediately cease all advertising, marketing and other resale activities with respect to the Porch Services; and (c) cease use of the Porch Services to the extent permitted under the Agreement, and any Brand Elements or other Porch resources provided under this Agreement and destroy any and all copies of such Porch Services and Brand Elements. In addition, upon any expiration or termination of this Agreement, each Party will return or destroy (at the other Party’s option) any Confidential Information of the other Party in its possession or control, provided that each Party may maintain reasonable copies to the extent required by applicable law or for archiving purposes in accordance with its record retention policies.

Any service contract customer agreement entered into prior to the termination of the Agreement will survive in accordance with the terms of the applicable Service Contract Terms and Condition, provided that in no event may such contract be extended or renewed without the prior written consent of Porch. The Parties agree to continue cooperating to carry out an orderly termination of their relationship, and to the extent a Service Contract Customer desires to purchase Porch Services following termination of the Agreement, Reseller will refer the Service Contract Customer to Porch and fully cooperate with Porch in connection therewith. Porch will have no liability to Reseller of any type arising from termination of this Agreement in accordance with its terms.

The terms of this Agreement that would, by their nature, survive termination, shall survive any termination or expiration of this Agreement.

Confidentiality

In connection with the Agreement, each party (“Discloser”) may disclose to the other (“Recipient”) certain confidential information which Discloser desires Recipient to treat as confidential.

Confidential Information.  “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, business, financial and marketing plans, data, technology and product roadmaps, present and future product integration plans, information on strategic partnerships and alliances and customer relationships, copyrighted training materials, and other technical and business information, including any information that would normally be considered confidential and/or give a competitor an advantage) that a reasonable person would consider to be confidential or proprietary given the nature of the information or the circumstances of the disclosure, whether or not marked as “Confidential,” “Proprietary” or in a similar manner.

Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under the Agreement. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s affiliates, contractors, consultants, advisors and representatives who (a) need to know such information, and (b) are bound by confidentiality obligations at least as protective as Recipient’s under this Agreement (each Party is fully responsible for its respective affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Recipient and its affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary; (ii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure.

Recipient’s obligations hereunder do not apply to Discloser Confidential Information that Recipient can prove: (a) is or becomes generally known to the public through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; or (c) was independently developed by Recipient without using or referring to any Discloser Confidential Information; or (d) was known to the Recipient without any restriction as to use or disclosure prior to first receipt by the Recipient from the Discloser.

Disclosure by Recipient of Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.

Return of Confidential Information.  Upon termination of this Agreement, or, if earlier, upon demand by the Company, Recipient shall return or destroy all written and/or electronic information and documents provided to it during the term of this Agreement, and all other Confidential Information and all copies thereof relating in any way to the business of Discloser or any of its affiliates.

 

  • Right to Audit. Subject to Reseller’s reasonable security and confidentiality procedures, Porch, or any third party retained by Porch may at any time upon prior reasonable notice to Reseller, during normal business hours, audit the books, records and accounts of Porch to the extent that such books, records and accounts pertain to the placement of any Orders hereunder or otherwise relate to the performance of this Agreement by Reseller. Reseller shall maintain all such books, records and accounts for a period of at least three (3) years after the date of expiration or termination of this Agreement.  Porch’s right to audit under this provision and Porch’s rights hereunder shall survive the expiration or termination of this Agreement for a period of three (3) years after the date of such expiration or termination.

Legal Relationship of the Parties. Porch’s Subsidiary, as defined below, may also exercise the rights of Porch under this Agreement. It is hereby agreed between the Parties that all rights and obligations existing between Reseller and Porch are repeated and apply mutatis mutandis as between Reseller and the respective Porch Subsidiary. Where the term Porch is used in this Agreement, the company name of the respective Porch Subsidiary may be read instead. "Subsidiary" shall mean any corporation, partnership, joint venture, limited liability company or other entity of which at least a majority of the securities or other interests having by their terms voting power to elect a majority of the board of directors or others performing similar functions for such entity is directly or indirectly beneficially owned by Porch (either alone or through or together with one or more of its subsidiaries).

 

Governing Law; Venue/Jurisdiction.  This Agreement and the rights and duties of the parties will be governed and construed in accordance with Delaware law without regard to its conflicts of law principles.  The parties hereby irrevocably submit to exclusive personal jurisdiction of and venue in the federal and state courts of Kent County, Delaware.  The prevailing party in any suit to enforce the terms of this Agreement will be entitled to recover its costs and reasonable attorneys’ fees from the non-prevailing party.    

No Assignment.  Neither party may assign this Agreement or delegate any duties hereunder without the prior written consent of the other party.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

Publicity.  Each party may issue press releases or publicity relating to the other party or this Agreement or reference the other party or its affiliates or subsidiaries in any brochures, advertisements, client lists or other promotional materials with the prior written permission of the other party. 

Notices.  Any notice required under this Agreement will be in writing to the address set forth in the signature block below (or to such other name and address of which a party may notify the other party under this section) and delivered in person or by certified or registered U.S. mail (return receipt requested) or by a nationally recognized overnight courier. Notices will be deemed given when received.

Changes to Agreement. Porch may update this Agreement from time-to-time at its sole discretion by posting the updated terms to this site or a successor site. The version of this Agreement in place at the time each Order is submitted is the version that will govern such Order. Except as provided in this Section 16, all changes or amendments to this Agreement require the written agreement of you and Porch.

General.  This Agreement contains the entire agreement between Porch and Reseller with respect to this engagement, and supersedes all prior and contemporaneous agreements, understandings, negotiations, proposals, initial statements of work and discussions, whether oral or written, between us with respect to this engagement.  All reliance with respect to any representations or promises is based solely on those contained in this Agreement.  No waiver of any right or remedy will be implied by failure to enforce such right or remedy and no express waiver will affect any rights or remedies other than that to which the waiver is applicable and only for that occurrence. If any term of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability will not affect any other term or provision, and such remaining terms and conditions will remain in full force and effect.  Section headings have been included in this Agreement for convenience only and are not to be considered part of, or to be used in interpreting this Agreement.  The language used in this Agreement expresses the mutual intent of the parties, and no rule of strict construction will be applied to any of its provisions.  This Agreement may be signed in counterparts, which together will constitute one and the same instrument.  A signature delivered by facsimile, .pdf or other reliable form of electronic reproduction will be considered an original for purposes of this Agreement.  The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include but are not limited to,” “includes but is not limited to,” and “including, but not limited to,” respectively. 



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