Quilt Installer Program Terms
These Quilt Installer Program Terms (the “Terms”) set forth the terms and conditions for Quilt’s program for contractors who are certified and authorized by Quilt to provide Services (as defined below) to its Customers (as defined below) with respect to the Quilt Product (such program, the “Quilt Installer Program”). These Terms apply to the contractor that has entered into a Quilt Installer Agreement (such entity, the “Installer” and such agreement, the “Agreement”) with Quilt Systems, Inc. (“Quilt”). These Terms are incorporated by reference into the Agreement. Please note that Quilt may modify the terms of these Terms in accordance with Section 17.2.
1. Certain Definitions
The following capitalized terms shall have the meanings set forth below.
“Certified Installer” means an Installer that has gone through Quilt’s initial training and annual update training and continues to comply with the Agreement.
“Change Order” means a written change order to an accepted Service Request that sets forth the change in scope from such Service Request, and that is in a form substantially similar to the one attached in Exhibit B to the Agreement.
“Confidential Information” means any non-public proprietary information, technical data, trade secrets, know-how, or other business or technical information of Quilt. Confidential Information also includes information received by Quilt from third parties subject to a duty to maintain the confidentiality of such information and to use it only for certain limited purposes.
“Customer” means the Quilt customer for which Installer provides Services as an independent subcontractor of Quilt under the Agreement, the applicable Service Request, and these Terms.
“Customer Site” means the location designated by Quilt in the applicable Service Request where Installer is to provide the applicable Services for the Quilt Product and Materials.
“Dial” means Quilt’s hardware thermostat device for temperature sensing and control of the Quilt Heat Pump System.
“Manual” means the specifications, manuals, documentation, or other documents related to the appliable Services, as provided by Quilt in writing (email OK).
“Inspection Services” means the inspection Services described in Section 2.4 and the design and consultation services to be performed by Installer as described in Section 2.5, and as may be further described in the applicable Manual.
“Installation Services” means the installation Services described in Section 2.6, and as may be further described in the applicable Manual.
“Maintenance Services” means the maintenance Services described in Section 2.7, and as may be further described in the applicable Manual.
“Materials” means the materials provided in the performance of the Installation Services, Maintenance Services, and/or Repair Services by Installer for incorporation in the Customer Site (or any part thereof or property thereon, including incorporation into the Quilt Product), including, without limitation, any breakers, linesets, lineset covers, electrical wires, and conduits. For the avoidance of doubt, the Materials do not include the Quilt Product.
“Repair Services” means the repair Services as described in Section 2.8, and as may be further described in the applicable Manual.
“Service Request” means service order issued by Quilt to Installer for the applicable Services that contains key information about the Services to be performed, similar to the example shown in Exhibit A.
“Services” means the Inspection Services, Installation Services, Maintenance Services, and Repair Services that are to be provided by Installer at the Customer Sites, as described in these Terms and the applicable Service Request and/or Change Order.
“Territory” means the geographic areas specified in Schedule 1 to the Agreement.
“Quilt Heat Pump System” means Quilt’s heat pump system, comprised of the units containing compressors placed outside (“Outdoor Units”), the indoor handling units (“Indoor Units”), and the Quilt Sense smart module containing compute and radar sensing.
“Quilt Product” means the Quilt Heat Pump System and Dials, collectively.
2. Appointment as Installer; Services
2.1 Nonexclusive Installer for Inspection, Installation, Maintenance, and Repair Services. Provided that Installer complies with all the terms and conditions of the Agreement (including, without limitation, these Terms and any approved Service Request and/or Change Order), Quilt will authorize Installer to perform Services for the Quilt Product at the Customer Sites, only in the geographic territory within the United States in which Installer is authorized by Quilt to provide the Services. For the avoidance of doubt, Installer is prohibited from providing Services outside the Territory or to Customers to which Installer is not explicitly authorized by Quilt to do so.
2.2 Service Requests; Performance of Services as Subcontractor of Quilt. From time-to-time during the Term, Quilt may issue Service Requests to Installer via email requesting the performance of specified Services for a particular Customer. Upon Installer’s acceptance of such Service Request via email, or such other means of electronic communication or software tools permitted by Quilt, such Service Request will be deemed accepted by Installer and is incorporated by reference herein. Installer shall promptly inform Quilt of the reason for any rejected Service Request. For each accepted Service Request, Installer shall provide to the applicable Customer the Services as described in such Service Request and in accordance with these Terms, the Agreement, and the applicable Manual(s). The terms of the Agreement and these Terms shall govern all approved Service Requests. Installer is prohibited from issuing any invoice to, or receiving payment from, a Customer for any Services performed under the Agreement. Installer shall use commercially reasonable efforts to promptly and timely comply with the service level requirements for task scheduling and completion as mutually agreed upon by Quilt and Installer for each Services component. Any and all Services performed by Installer under the Agreement are performed in Installer’s capacity as a subcontractor for Quilt.
2.3 Change Orders. For any unanticipated issues from unforeseen conditions (within scope) causing overage costs, Installer shall submit a Change Order via email, or such other means of electronic communication or software tools permitted by Quilt, with estimated time and cost. Upon Quilt’s written acceptance of such Change Order (email OK), such Change Order will be deemed accepted by the parties and is incorporated by reference herein, and the terms of the Agreement and these Terms shall govern such Change Order.
2.4 Inspection Services. With respect to each accepted Service Request that requests Inspection Services, Installer shall inspect the applicable Customer Site to assess the feasibility of installing the Quilt Product, including the number of Indoor Units, Outdoor Units, and Dials required and a recommended configuration for installation of the Quilt Product. If Installer determines that installation is feasible for a Customer, but would cost more than the Installation Services Fee set forth in Schedule 1 to the Agreement, Installer shall notify Quilt and obtain Quilt’s express prior written approval (given in its sole discretion) via email before commencing any Installation Services for such Customer. In the sole event that Quilt agrees in writing with Installer’s assessment that an installation is not feasible for a Customer, then Installer may recommend alternative heating/cooling solutions to such Customer, and Quilt will not pay Installer for the Inspection Services for such Customer.
2.5 Design Approval. Subsequent to Installer’s inspection of a Customer Site pursuant to an accepted Service Request, Installer shall submit for Quilt’s review a detailed assessment for the installation that describes (a) the number of Indoor Units, Outdoor Units, and Dials required and the recommended configuration for installation of the Quilt Product (including, without limitation, the placement of the Indoor Units, Outdoor Units, linesets, and electrical wiring); (b) the specifications, quality, and type of Materials that Installer plans to use for the installation of the Quilt Product; and (c) any other labor necessary to complete the Services under the applicable Service Request (e.g., removal of existing HVAC system, service disconnect, etc.) (the foregoing, collectively, the “Design Services”), and Quilt shall either reject or approve the foregoing proposed design in writing (such approved design, an “Approved Design”).
2.6 Installation Services. With respect to each accepted Service Request that requests Installation Services, Installer shall install the Quilt Product for the applicable Customer(s) and ensure that the Quilt Product is functioning in accordance with the applicable Manual and the Approved Design. If, during the performance of the Installation Services, it is determined that to complete the installation, Installer will need to perform services that are not listed in the Service Request, e.g., a pre-existing condition of the Customer Site must be repaired or updated to current applicable codes because of municipal or other government agency enforcement, then Installer shall first notify Quilt and then submit a Change Order in accordance with Section 2.3. Upon completion of the Installation Services, Installer shall verify the Quilt Product is in good, safe, and working condition and shall provide Quilt with a written email certifying that it has passed inspection and is in good, safe, working condition. Quilt may then, at its option, perform a final inspection to confirm the Quilt Product installed at the Customer Site meets the specifications and acceptance criteria set forth in the applicable Manual and is of reasonably satisfactory/acceptable quality. The Installation Services shall be deemed complete upon Customer sign-off of the installation and Quilt’s written acceptance of the Installation Services by email.
2.7 Maintenance Services. With respect to each accepted Service Request that requests Maintenance Services, Installer shall perform Maintenance Services for the Quilt Product and Materials in accordance with the applicable Manual. The Maintenance Services will include, without limitation, inspection and cleaning of the Indoor Unit air filters, cleaning of the Indoor Unit and Outdoor Unit heat exchangers and fan blowers, inspection of system components, and cleaning of condensate drains.
2.8 Repair Services. With respect to each accepted Service Request that requests Repair Services, Installer shall perform Repair Services for the Quilt Product and/or Materials (as applicable) in accordance with the applicable Manual.
2.9 Inventory. Installer shall be solely responsible for obtaining the Quilt Products from Quilt for each installation under an accepted Service Request. Installer shall maintain insurance coverage for the inventory of Quilt Products it obtains from Quilt, and shall exercise due care in the storage and transportation of the Quilt Products. Installer agrees that Quilt may charge Installer the fair market value of any Quilt Products, or components thereof, that are missing from inventory, destroyed, or unaccounted for at any point during the Term (as defined in Section 11.1) of these Terms, or upon the termination or expiration of the Agreement. Installer shall hold the Quilt Products inventory as a bailment, and shall not encumber in any way such inventory, and all right, title, and interest in the Quilt Products provided under the Agreement shall remain with Quilt.
2.10 Provision of the Quilt Product and Materials. Quilt shall be responsible for providing all components of the Quilt Product for each Customer pursuant to an approved Service Request. At its cost and expense, Installer shall be responsible for providing all labor and other Materials necessary to complete all accepted Service Requests.
2.11 Materials Ownership. Upon completion of the Services for a Customer Site, all Materials shall become the assets of Quilt. Installer assigns and agrees to assign all ownership, right, title, and interest in and to the Materials to Quilt. Installer will sign and, if necessary, file such documents with government agencies, and take such actions, as reasonably requested by Quilt to perfect each assignment of Materials.
2.12 Cover. If Installer is unable or fails to comply with the provisions of the terms of the Agreement, these Terms, and/or the applicable Service Request or Change Order, including without limitation, payment for all materials furnished by Installer per the applicable Service Request and Services and labor performed, and the failure is not cured within five (5) calendar days after receipt by Installer of written request for compliance from Quilt, Quilt may, by subcontract or otherwise, without prejudice to any other right or remedy, take over and complete the performance of the Services at Installer’s expense or, without taking over the Services, provide the personnel necessary to remedy the situation at Installer’s expense.
3. Quilt Installer Program Certification
In order to participate in the Quilt Installer Program, Installer shall maintain its certification as a Certified Installer by (a) complying with the requirements and specifications of the Quilt Installer Program, as provided by Quilt from time to time in writing, including the requirements set forth in these Terms, any accepted Service Requests and Change Orders, and the Agreement, and (b) participating in any training programs (including, without limitation, any periodic or annual training updates) and/or reviewing any training materials designated by Quilt for certification for the Quilt Installer Program. In the event Installer is not in compliance with the terms of the Quilt Installer Program, including these Terms and/or the Agreement, Installer may be uncertified by Quilt, at Quilt’s sole discretion.
4. Bonding; Compliance with Law; Safety; and Liens and Claims
4.1 Bonding. Installer shall be bonded for the amount required by the jurisdiction where the Customer Site is located.
4.2 Compliance with Law. Installer agrees to comply with all laws, ordinances, and regulations bearing on the Services and conduct thereof. Installer acknowledges that it is knowledgeable and aware of all existing and potential restrictions and/or conditions, including, without limitation, noise abatement, which may limit or restrict construction methods and/or hours of Services. The webpage that sets forth the parties’ responsibilities, as linked in Section 3, will indicate the parties’ respective responsibilities for obtaining and paying for required permits, licenses, and official inspections.
4.3 Safety. Installer shall take all reasonable safety precautions pertaining to the Services and the conduct thereof. Installer shall comply with all applicable laws, ordinances, rules, regulations and orders issued by any public or governmental agency, body or authority, whether federal, state, local or otherwise, including, but not limited to, occupational safety, health, and environmental legislation and, in addition, the safety measures called for by Quilt. Any Installer performing an unsafe or illegal act or operation shall be notified to stop work until the operation is corrected. If such acts or operations continue, it shall result in the termination of the Agreement. This project encompasses areas that may include both public and private right-of-way. Therefore, in addition to the workmen, consideration must also be made for the general public and for private property. In the event Installer needs permission to enter onto private property or to perform work on public property, Installer shall not trespass onto such property and shall obtain the requisite permission prior to entering or performing work thereon (as applicable).
4.4 Liens and Claims. Upon request, Installer shall furnish evidence satisfactory to Quilt that all amounts due for labor and materials furnished by Installer in connection with performance of the Agreement have been paid, including union health, welfare, and pension fund payments and payroll taxes. Such evidence shall be furnished in such form and manner as requested by Quilt, and all statements relative thereto shall, if required by Quilt, be made by sworn affidavit. Upon Quilt’s request, Installer shall furnish to Quilt releases of bond rights and lien rights by persons who have furnished labor, material, or other things in the performance of the Agreement, it being agreed that payment of money otherwise due Installer need not be made by Quilt until such releases are furnished. Installer waives any and all rights it may have to file liens against property, real or personal, of Customer and Quilt. In the event a claim of lien or other encumbrance is filed against the Customer Site by any of Installer’s employees, subcontractors, or material suppliers, and such claim or encumbrance is not satisfied or removed within five (5) days, Installer agrees that Quilt is authorized to pay such claim or encumbrance and to charge to Installer the amount paid, plus reasonable attorneys’ fees and costs, from sums remaining due to Installer. In the event the amount of the lien or encumbrance exceeds the amount due to Installer, Installer agrees to reimburse Quilt such amount, plus reasonable attorneys’ fees and costs, within ten (10) days after demand is made therefor.
5. Compensation and Payment
5.1 Compensation. Quilt shall pay Installer the applicable fees specified in Schedule 1 of the Agreement for the applicable Services performed pursuant to an approved Service Request. The installation cost of any Outdoor Units and Dials that are required to be installed in order to operate the Indoor Units are included in the Installation Services Fee set forth in Schedule 1 to the Agreement, as are Materials and labor (including, without limitation, breakers, linesets, lineset covers, electrical wires and conduits, service disconnect for the outdoor unit) necessary to complete the accepted Service Request. Unless otherwise expressly agreed upon by the parties in an approved Service Request, Installer shall be responsible for all other costs and expenses (other than the cost of purchasing the Quilt Product, which shall be Customer’s responsibility) associated with the Services.
5.2 Invoices. Installer must submit its invoice to Quilt’s Accounts Payable department no later than sixty (60) days after completing the Services. Each invoice shall include all the following: a brief description of the Services that were provided to each Customer, including the date such Services were provided, the Customer Site at which such Services were provided, a list of the components of the Quilt Products installed or repaired for each Customer, photos of work performed, and any additional information as Quilt may reasonably request. Each invoice shall be accompanied by a fully completed and signed Customer Acknowledgment Form (provided by Quilt) for all Services performed, unless Customer has submitted the Customer Acknowledgment Form to Quilt electronically. Each invoice shall include the gross amount invoiced, any applicable discounts, and the net amount billed to Quilt.
5.3 Payment Terms. Quilt shall pay Installer for Services within thirty (30) days of its receipt of an accurate invoice and supporting documentation from Installer as described in the “Invoices” paragraph immediately above. Payment to Installer shall be in United States dollars and shall be subject to all applicable governmental regulations, including the withholding of any required taxes.
6. Referrals; Marketing
6.1 Marketing. Quilt will use reasonable efforts to identify project opportunities for the Installer within the Territory, for which Quilt believes Installer services will be competitive. Installer will use reasonable efforts to identify project opportunities for Quilt, for which Installer believes the Quilt Product is competitive.
6.2 Referral. If (a) Installer independently sources a prospective customer and submits the contact information of such prospective customer to Quilt for approval; (b) such prospective customer was not previously identified by Quilt in Quilt’s customer relationship management database; and (c) Quilt provides its acceptance and approval of such prospective customer in writing (email OK), then such prospective customer shall be deemed a “Qualified Lead”, and Quilt shall pay Installer the referral fee set forth in Schedule 1 to the Agreement, in accordance with Section 6 of these Terms, upon completion of installation of the Quilt Product for such Qualified Lead. Quilt may reject any prospective customer for any reason, in its sole discretion.
6.3 Use of Marks and Marketing Materials. During the Term (as defined below), each party will allow the other party to use its name and logo (“Marks”), as well any advertising, promotional, or marketing materials (collectively, “Marketing Materials”) such party may provide from time to time, solely in such other party’s outreach to prospective customers, and in accordance with any branding guidelines provided by the owner of the Marks and/or Marketing Materials from time to time.
6.4 Feedback. Installer will provide feedback to Quilt with regards to the competitiveness of the Quilt Product.
6.5 Marketing and Training Materials. Quilt will provide Marketing Materials or training materials related to features, functions, and benefits of the Quilt Product and Services.
7. Non-Circumvention; Non-Solicitation
Installer acknowledges that Installer will be introduced to, connected with, and/or transact with Customers through Quilt, and Installer agrees that: (a) as between Quilt and Installer, the identities and contact information of any such Customers and the related business opportunities are the Confidential Information of Quilt; and (b) such Confidential Information and business opportunities are core and valuable components of Quilt’s business from which Quilt generates a significant portion of its revenue and goodwill. During the Term, Installer agrees to provide Services to Customers that are introduced to Installer, or identified by Quilt, exclusively through Quilt and, except as expressly permitted in Section 2.4, not to directly or indirectly: (i) seek to by-pass, avoid, or circumvent Quilt and provide the Services or competitive services to any such Customer without going through Quilt; (ii) attempt to solicit or sell any products to any such Customer without Quilt’s prior written consent; or (iii) use any Confidential Information to exploit, derive any benefit from, initiate, solicit, negotiate, contract, or enter into any business transactions, agreements, or undertakings with any such Customer or other third party identified or introduced by Quilt in a manner that usurps Quilt’s business opportunity, competes with Quilt, or otherwise circumvents, bypasses, or otherwise denies, limits, evades, equivocates, or reduces the interest, profit, share, or participation of Quilt in any relationship of Quilt with such Customer. Without limiting any of its other rights or remedies, for any violation of this provision, Quilt will be entitled to: (1) liquidated damages (not as a penalty) equal to the revenue received by Installer for each violation of this provision, plus interest equal to 1.5% per month (or, if lower, the highest interest rate permitted by applicable law) accrued daily until paid; (2) equitable relief to enforce this provision, as set forth in Section 16.3; and (3) reimbursement of all costs and expenses (including the reasonable fees of attorneys and subject matter experts) as incurred by Quilt to enforce this provision. For the avoidance of doubt, this Section applies solely to Customers introduced to Installer or identified by Quilt, and shall not apply with respect to any Customers who were independently sourced by Installer and accepted by Quilt as Qualified Leads in accordance with Section 7.2. This provision does not affect Quilt's right to also sue for damages.
8. Proprietary Rights
8.1 Quilt Ownership. Quilt will retain ownership of its products and services, including without limitation, all Materials, software, services, and processes used to enhance Quilt products, any modifications, improvements, enhancements and derivative works thereof, and all associated intellectual property and other proprietary rights.
8.2 Feedback. Customer grants to Quilt and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its products and services any suggestion, enhancement, request, recommendation, correction, or other feedback provided by Installer relating to the Quilt Product or any of Quilt’s other products or services.
9. Representations and Warranties
9.1 Mutual Warranties of Power and Authority. Each party represents and warrants to the other party that (a) it has the corporate power and authority to enter into the Agreement and to perform its obligations hereunder; (b) it has not entered into any agreement inconsistent with the Agreement; (c) the execution of the Agreement by such party, and the performance by such party of its obligations and duties hereunder, does not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (d) it has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would hinder the performance of its obligations under the Agreement; and (e) it will comply with all applicable laws and regulations in connection with the Services hereunder.
9.2 Installer Representations and Warranties to Quilt. Installer represents and warrants to Quilt that: (a) Installer is a duly licensed and bonded HVAC contractor in good standing with all applicable government agencies and industry organizations; (b) Installer is an expert and specializes in the Services; (c) will perform the Services in a good, professional, complete, accurate, timely, responsible, ethical, and workmanlike manner, in accordance with the highest industry standards; (d) Installer will provide sufficient personnel to perform the Services in an efficient, prompt, and diligent manner; (e) Installer will perform appropriate background screening and eligibility verification on its employees and any subcontractors; (f) Installer will comply with (i) the requirements set forth in the applicable Service Request, Change Order (if applicable), and the applicable Manual(s); and (ii) the documentation and specifications provided by Quilt for Materials used for each Service Request; (g) title to the Materials and results of the Services provided under a Service Request will pass to Quilt either by incorporation in the Customer Site, or any part thereof or property thereon, or upon receipt of payment by Installer, whichever occurs first; (h) the Services and Materials provided by Installer are and will be free and clear of liens, claims, security interests, or encumbrances (collectively “Liens”); (i) no Services or Materials covered by an invoice and acquired by Installer or any other person performing work at the site on behalf of Installer are subject to agreements under which an interest therein or Lien thereon is retained by the seller or otherwise imposed by Installer or such other person; and (j) Installer will properly install the Quilt Product in accordance with the Approved Design and ensure that the Quilt Product is operational upon installation.
9.3 Labor Warranty. Installer warrants (a) the installation labor and/or Installation Services provided by Installer for the applicable Quilt Product under each approved Service Request against defects in workmanship; and (b) the Materials against defects, in each of the foregoing cases, for a period of three (3) years from the date of installation of the applicable Quilt Product (the foregoing warranty, the “Labor Warranty”). For clarity, Installer shall not be found in breach of the Labor Warranty if the defects are found to be solely due to a defect in the Quilt Product. Any defective installation labor, Installation Services, and/or Materials failing to conform to the Agreement (including these Terms and the applicable Service Request) shall be corrected by Installer promptly, but in any event, within five (5) days after receiving notice thereof. In addition, if an Approved Design was accepted and approved by Quilt because Installer failed to notify Quilt of an issue that Installer knew or should have reasonably known about, Installer shall be responsible and liable for correcting such issue in accordance with this Section. In the event of defective Materials, Installer shall not be responsible for the cost of replacement Materials unless the failure was caused by Installer’s mistake or actions. If Installer is unable to (i) fix the nonconforming installation labor, Installation Services, and/or Materials (as applicable), or (ii) provide remedy for breach of the Labor Warranty within the time period specified in this Section, then Quilt may, by subcontract or otherwise, without prejudice to any other right or remedy, remedy the situation at Installer’s expense.
10. Terms and Termination
10.1 Term. Unless otherwise set forth in the Agreement (including Schedule 1), the Agreement shall commence on the Effective Date set forth in the Agreement, and shall continue in full force and effect so long as Installer maintains its certification as a Certified Installer, unless terminated earlier as set forth in the Agreement (including Schedule 1) (the “Term”).
10.2 Termination for Cause. Either party may terminate the Agreement at any time upon written notice if the other party) is in material breach of its obligations hereunder and fails to cure such breach within thirty (30) days following written notice of such breach.
10.3 Termination for Convenience. Installer may terminate the Agreement, for its convenience, without further liability or obligations, upon thirty (30) days’ written notice to Quilt. Quilt may terminate the Agreement, for its convenience, without further liability or obligations, upon five (5) days’ notice to Installer.
10.4 Effect of Termination. Upon expiration or termination of the Agreement, (a) within thirty (30) days after such expiration or termination, Installer shall return to Quilt all Quilt materials (including any and all Confidential Information and any Quilt Products held by Installer as a bailment) that have been provided to Installer, at Quilt’s expense; (b) Installer shall complete any outstanding accepted Service Requests and Change Orders, and the Agreement (including these Terms) shall continue to apply with respect to such Service Requests and Change Orders; (c) Quilt shall pay Installer for any accrued but unpaid payment obligations arising under the Agreement; (d) Installer shall cease using any Confidential Information; (e) Installer shall cease providing any Services to any Customers serviced through Quilt except for those Services pursuant to clause (b) herein; and (f) these Terms shall also automatically terminate. Quilt will bill Installer (or offset payments due to Installer) for any Quilt materials that are not returned as required under this Section.
10.5 Survival. The following Sections of these Terms will survive expiration or termination of the Agreement: 1, 2.9, 2.11, 2.12, 5.4, 6 (solely with respect to any unpaid payment obligations accrued hereunder), 8, 9, 11.4, 11.5, 12, 13, 14, 15, 16, and 17.
11. Indemnification
11.1 By Installer. Installer, at its own expense, shall indemnify and hold Quilt harmless from and against any claim, demand, or cause of action (including by Installer’s employees and subcontractors) relating to or arising from: (a) the Services, Materials, or Installer’s misconduct, negligence, acts or omissions; (b) a breach of the Agreement (including these Terms and any accepted Service Requests and Change Orders); or (c) personal injury, illness, death, or damage to, or loss of property caused by, Installer, and shall pay all settlements entered into and damages awarded against Quilt (including reasonable attorneys’ fees, civil fines, or penalties imposed by any governmental agency, officer or court) to the extent based on such action. The indemnification specified in this Section shall survive termination of the Agreement and is in addition to any other rights or remedies that Quilt may have under law or equity.
11.2 By Quilt. Quilt at its own expense, shall defend Installer against any claim, demand, or cause of action (including by Quilt’s employees) relating to or arising from the Quilt Product infringing a valid United States trade secret, copyright, or patent issued as of the date of the Agreement, and shall pay all settlements entered into and damages awarded against Installer (including reasonable attorneys’ fees, civil fines or penalties imposed by any governmental agency, officer or court) to the extent based on such action. As a condition to such indemnification, Installer shall: (i) provide Quilt with prompt written notice of any claim; (ii) permit Quilt to assume and control the defense of any action; (iii) provide Quilt with reasonable assistance in its defense and settlement; and (iv) not enter any settlement or compromise of any claim without Quilt’s prior written consent. The indemnification specified in this Section shall survive termination of the Agreement and is in addition to any other rights or remedies that Installer may have under law or equity.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QUILT SHALL NOT BE LIABLE TO INSTALLER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST REVENUE, PROFITS, BUSINESS, INFORMATION OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT (INCLUDING ANY APPLICABLE SERVICE REQUEST, CHANGE ORDER, AND THESE TERMS) OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF QUILT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF; OR (B) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF THE FEES PAID BY QUILT TO INSTALLER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY. THE PARTIES AGREE THESE LIMITATIONS SHALL APPLY EVEN IF THE AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QUILT DISCLAIMS ALL LIABILITY OF ANY KIND OF QUILT’S AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS.
13. Confidentiality
13.1 Confidentiality Obligations. During the Term, Quilt may provide the Installer with (or allow it to access) certain Confidential Information. During the Term and for a period of three (3) years after the expiration or termination of the Agreement, Installer must preserve as strictly confidential (and not disclose) all the Confidential Information of Quilt and shall not use such information other than for the purposes of performing its obligations under the Agreement. Notwithstanding the preceding time limitation, Installer’s confidentiality obligations with respect to (a) personal and financial data of or about Customers shall survive the expiration or termination of the Agreement and continue indefinitely, and (b) any information that constitutes Quilt’s trade secrets shall survive the expiration or termination of the Agreement shall continue for so long as such information remains a trade secret under applicable law.
13.2 No License. All Confidential Information is, and shall remain, the property of Quilt. Nothing herein shall be construed as granting or conferring any rights by license or otherwise in the Confidential Information except as expressly provided herein.
13.3 Return of Confidential Information. Upon the written request of Quilt, or upon the expiration or any earlier termination of the Agreement, Installer shall promptly return or destroy all copies of the Confidential Information, in whatever form or media, to Quilt and delete all of Quilt’s Confidential Information from its computers. Installer shall certify in writing to Quilt such return or destruction within ten (10) days thereafter.
14. Insurance
14.1 Insurance Coverage. Installer shall, at its own expense, maintain with responsible insurers having at least an A- rating and authorized to do business in the state(s) where the Services are performed, insurance in amounts and of the type required by law and as otherwise necessary and appropriate to adequately cover all activities engaged in pursuant to the Agreement. At a minimum, Installer will, at all times during the Term and for three (3) years thereafter, provide and maintain in effect the following insurance policies and minimum limits of coverage:
- Comprehensive Commercial General Liability insurance covering all operations for personal injury and property damage, as those terms are defined by Commercial General Liability insurance policies, including Premises Operations, “X,C,U,” where applicable, Products/Completed Operations, Contractual Liability, Broad Form Property Damage and Independent Contractors with limits of not less than $1,000,000 for each occurrence and a general aggregate of at least $2,000,000 and a Products/Completed aggregate of $2,000,000. This policy shall be endorsed to have the General Aggregate apply on a “Per Project Basis.” This policy shall be the “Occurrence” form.
- Comprehensive Business Automobile Liability insurance, including bodily injury and property damage for all vehicles, (including Owned, Hired and Non-owned Vehicles), with limits of liability not less than $1,000,000 combined single limit for each accident and an aggregate of at least $2,000,000.
- Errors and Omissions/Professional Liability with limits of not less than $1,000,000 per occurrence or per claim and in the annual aggregate of at least $2,000,000.
- Workers’ Compensation insurance as required by any applicable law or regulation and, in accordance with the provisions of the laws of the state, territory or province having jurisdiction over such party’s employees.
- Employer’s Liability insurance with limits of not less than $1,000,000 for each occurrence and an aggregate of at least $2,000,000.
- Umbrella Liability insurance with limits of not less than $2,000,000 and an aggregate of $2,000,000.
14.2 Quilt as Beneficiary. Installer will add Quilt as a named beneficiary, additional insured, or loss payee under its insurance policies, and provide Quilt with Certificates of Insurance showing coverage types and amounts and Quilt as a named beneficiary. The policies will be endorsed to stipulate that Installer’s insurance will be primary and non-contributory. Installer and its insurers will waive subrogation to the extent permitted by law. Installer’s insurance is understood to be primary with respect to the interests of the additional insureds and any other insurance maintained by these additional insureds is excess and not contributory with Installer’s insurance. The maintenance of insurance by Installer and the limits of coverage required shall in no way limit or affect the extent of Installer’s liability. Installer shall provide Quilt with Accord certificates evidencing such insurance as outlined above prior to beginning any Services under the Agreement. Installer shall cause its subcontractor(s) to procure insurance as outlined above. Installer shall obtain policies or certificates for such subcontractor(s) and deliver them to Quilt upon request.
15. Governing Law and Venue; Dispute Resolution
15.1 Governing Law and Venue. The Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
15.2 Informal Dispute Resolution and Arbitration. The parties acknowledge most disputes can be resolved without resort to litigation. The parties will use their best efforts to settle any dispute directly through consultation with each other before initiating legal action. If, after good faith negotiations the parties are unable to resolve the dispute within 30 days after the initial meeting to resolve the dispute, then the parties agree to submit the dispute to a mediator and share the fees of the mediator equally. If the parties are unable to resolve the dispute through mediation before a single mediator with the American Arbitration Association (“AAA”) and pursuant to the then existing Commercial Mediation Rules at the AAA. If the parties are unable to resolve the dispute through mediation, then the parties agree to submit the dispute to binding arbitration before a single arbitrator with the American Arbitration Association (“AAA”) and pursuant to the then existing Commercial Arbitration Rules at the AAA (the “Rules”).
If the parties cannot agree upon selection of an arbitrator, then AAA shall appoint an arbitrator experienced in the construction industry. The place of the arbitration will be San Francisco, California. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The existence of a dispute, submission to arbitration, and any arbitration award under to the Agreement is deemed the Confidential Information of both parties. Notwithstanding anything to the contrary in this Section, Quilt shall be entitled to seek injunctive relief as set forth in Section 16.3 below.
15.3 Equitable Relief. Installer acknowledges and agrees that a breach or threatened breach by Installer of any of its obligations under Section 8 (Non-Circumvention; Non-Solicitation) or Section 14 (Confidentiality) would cause Quilt irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Quilt will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16. Miscellaneous
16.1 The Entire Agreement. The Agreement, including these Terms and all approved Service Requests and accepted Change Orders, is the complete, final and exclusive statement of the terms of the agreement between the parties, and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, relating to the subject matter hereof.
16.2 Modifications to these Terms. Quilt reserves the right to update or modify these Terms at any time. The revised Terms will be posted at www.quilt.com/installer-program-terms. Except as stated below with respect to material changes, all updates and modifications to these Terms will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above. If Quilt makes any material changes to these Terms, Quilt will post a prominent notice on Quilt’s website. Material changes to these Terms will become effective on the date set forth in the notice. It is Installer’s responsibility to regularly visit and review these Terms for updates and modifications. Installer’s continued provision of the Services or participation in the Quilt Installer Program after the effective date of the revised Terms will constitute Installer’s acceptance of the revised Terms. If Installer does not agree to any updates or modifications to these Terms, Installer must terminate the Agreement.
16.3 Assignment. Installer may not (a) transfer or assign the Agreement in whole or in part, or any of its rights, or (b) except for subcontracting as set forth in Section 17.4, delegate any obligations hereunder, without Quilt’s prior written consent. Any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, the Agreement is binding upon, inures to the benefit of, and is enforceable by the parties hereto and their respective successors and permitted assigns.
16.4 Subcontractors. Installer shall be entitled to subcontract its performance of the Services without the prior written consent of Quilt. This shall not relieve Installer from any liability or obligation under the Agreement, and Installer shall be fully responsible and liable for all acts and omissions of its subcontractors and for their compliance with the Agreement (including these Terms and all approved Service Requests and accepted Change Orders).
16.5 Conflicts. In the event of any inconsistency or conflict between these Terms, the Agreement, any accepted Service Request, or any accepted Change Order, the inconsistency or conflict shall be resolved by giving precedence as follows: (a) these Terms; (b) the Agreement; (c) the accepted Change Order; and (d) the accepted Service Request.
16.6 No Third Party Beneficiaries. No provision of the Agreement is intended to confer upon any entity other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of the Agreement, including without limitation, Customers.
16.7 Independent Contractor. Quilt and Installer are independent contractors under the Agreement and nothing in the Agreement is intended to, or shall be construed to, create a partnership, joint venture, or similar relationship. Installer is not an agent of Quilt, and may not act on behalf of or create or assume any obligation on behalf of Quilt (including, without limitation, obligations to compensate service providers). Quilt shall have no right to direct or control Installer or its employees and agents but shall have the right to provide requirements and specifications for the Services and the right to approve or disapprove of the results of the Services and to conduct normal inspections and reviews. Installer will not be entitled to any of the benefits that Quilt may make available to its employees, including without limitation, group health or life insurance, profit-sharing or retirement benefits. Installer 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 fees under the Agreement. Installer is solely responsible for, and must maintain adequate records of, expenses incurred while performing Services under the Agreement. No part of Installer’s compensation will be subject to withholding by Quilt for the payment of any social security, federal, state or any other employee payroll taxes. Quilt will regularly report amounts paid to Installer by filing Form 1099-MISC with the Internal Revenue Service as required by law.
16.8 Notices. Notices shall only be effective if given in writing to the address or email address and to the attention of the signatory on the cover page of the Agreement or to such other address or email address as either party may substitute by written notice to the other. Any notice involving breach, termination, or renewal or nonrenewal shall be personally delivered or sent by recognized overnight courier (such as Federal Express or DHL) or by certified mail, return receipt requested. All other notices may additionally be sent e-mail with confirmation of transmission. All notices shall be deemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark (except that e-mails will be deemed received upon confirmation of receipt).
16.9 Waiver; Severability. Failure of either party to enforce compliance with any provision of the Agreement shall not constitute a waiver of such provision unless accompanied by a clear written and signed statement that such provision is waived. A waiver of any default hereunder or of any of the terms and conditions of the Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in the Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity. In the event any provision of the Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties; and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.
16.10 Nondisparagement. Installer agrees that Installer will not at any time disparage Quilt in any manner likely to be harmful to Quilt, or Quilt’s business reputation, or the personal or business reputation of Quilt’s directors, officers, stockholders, employees, or agents.
16.11 Observance of Rules. At all times while at the Customer Site, Installer will observe Quilt’s rules and regulations with respect to conduct, health, safety, and protection of persons and property.