This Referring Agent Agreement is made on this date by and between SideCars, Inc., a Missouri domiciled corporation, with its principal place of business at 532 S. Main Street, Joplin, MO, 64801 (hereinafter referred to as “SIDECARS”), AutoGard, Inc., an Oklahoma corporation, with its principal place of business at 14301 Caliber Dr., Suite 100 Oklahoma City, Oklahoma 73134 (hereinafter referred to as “AutoGard”), and you.
WHEREAS SIDECARS and AutoGard have developed certain automotive vehicle service contracts (“Contracts AutoGard”) which enables Representative and its agents to refer its customers which purchase new and used vehicles (“Purchaser(s)”) to SIDECARS for the purchase of a Contract (“Program”);
WHEREAS, AutoGard desires to offer Representative access to the Program and Representative agrees to refer Purchasers to SIDECARS under the Program;
NOW THEREFORE, IN CONSIDERATION OF THE PRECEDING RECITALS, AND THE CONVENANTS AND PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
- SIDECARS hereby grants a license to Representative to refer interested Purchasers to SIDECARS for the purchase of Contracts under the Program.
- AutoGard Representative acknowledges that the Program is a proprietary Program that has been developed by SIDECARS and AutoGard over a long period of time, and at great expense. Representative is licensed to use the Program, along with promotional materials, displays, contract forms and procedures associated therewith, only during the term of this Referring Agent Agreement. Representative shall have no authority to alter, modify, waive or discharge any terms, conditions, rules, regulars or policies of the Program.
- Nothing in this Referring Agent Agreement grants to Representative any right, title or interest in the names, logos, service marks, trademarks, procedures or forms developed and/or used by SIDECARS or AutoGard to identify or describe the Program.
OBLIGATIONS OF SIDECARS
- Program. SIDECARS shall secure a policy of insurance issued by a state licensed insurance company (the “Insurance Company”) indemnifying the Purchaser or obligor on the Contract, according to the terms and conditions of said Contract, against sums which Purchaser may become obligated to pay for repairs and services according to the terms and conditions of the Contract.
- Indemnification. SIDECARS agrees to indemnify and hold Representative harmless from any and all claims, demand, expenses cause of action, loses or damages of whatsoever kind or nature, including attorney’s fees, court costs and punitive or exemplary damages, arising from acts of errors or omissions of SIDECARS relating to the Program, including but not limited to, negligent acts, intentionally wrongful acts, claims of misrepresentation or fraud.
- Promotional Materials. SIDECARS shall provide all the necessary and customary supplies and materials to institute, maintain and administer the Program.
- Cancellations. SIDECARS, in a timely manner, and in accordance with the Contracts and state and federal law, shall process the cancellation of Contracts. The processing of cancellations shall include, but not be limited to, the calculation of the amount of the refund due from SIDECARS (including insurance company’s portion) on a pro rata basis, which is determined on the same percentage of the total purchase price of the Contract that each respective entity receive.
OBLIGATIONS OF REPRESENTATIVE
- Marketing Program. Representative shall refer Purchasers to SIDECARS in accordance with the Program.
- Indemnification. Representative agrees to indemnify and hold SIDECARS and their contractual liability insurer harmless from any and all claims, demand, expenses cause of action, loses or damages of whatsoever kind or nature, including attorney’s fees, court costs and punitive or exemplary damages, arising from acts of errors or omissions of Representative, Representatives’ employees or sub-agents relating to the Program, including but not limited to, negligent acts, intentionally wrongful acts, claims of misrepresentation or fraud.
- SIDECARS shall pay to Representative a commission for each referral which purchases a Contract and is remitted to SIDECARS. During the first thirty (30) day flat cancellation period (or longer period as governed by applicable state rules) of a Contract, Representative’s commission will be subject to chargeback.
- Subject to Section 4 of the Referring Agent Agreement, the commissions (referral fees) paid to the Representative are not subject to a chargeback after the thirty (30) day contract cancellation period.
- Representative is an independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise, or (iii) allow Representative to create or assume any obligation on behalf of SIDECARS or AutoGard for any purpose whatsoever. Representative is not an employee of SIDECARS or AutoGard and is not entitled to any employee benefits.
- Representative shall be responsible for paying all income taxes and other taxes charged to Representative on amounts earned hereunder. All financial and other obligations associated with Representative's business are the sole responsibility of Representative.
DURATION OF AGREEMENT
- The term of this agreement is for 1 year and will renew automatically for successive 1- year periods unless either party provides ninety (90) days written notice of intention not to renew.
- SIDECARS, AutoGard or Representative may terminate this Referring Agent Agreement immediately upon written notice should the other party become subject to insolvency proceedings, conservatorship, or other liquidation proceedings of any court or governmental authority to which it is subject.
- This Referring Agent Agreement shall terminate immediately upon the termination of that certain Program Agreement (Administrator Program) between AutoGard, Inc., SIDECARS and One Source, Inc., as may be amended from time to time. Upon such termination, SIDECARS or AutoGard shall provide notice to Representative within ten (10) days of such termination.This Referring Agent Agreement may be terminated immediately by any party for cause. Cause is defined as a material breach of this Referring Agent Agreement.
- This Referring Agent Agreement shall automatically terminate in the event that SIDECARS is unable to provide the Program as provided for herein.
- SIDECARS will continue to pay Representative commissions on business referred from existing Purchasers after the date of termination.
GOVERNING LAW AND JURISDICTION
- This Referring Agent Agreement shall in all respects be deemed to be made, interpreted, enforced and governed by the laws of the State of Missouri, without reference to its conflict of laws. In the event of any dispute concerning this Referring Agent Agreement, the parties hereby consent and submit to personal jurisdiction of any state or federal court having its situs in Jasper County, MO.
- If any dispute shall arise between SIDECARS, AutoGard and/or Representative with reference to the interpretation of this Agreement or their rights with respect to any transaction involved, the dispute shall be settled by arbitration in accordance with the rules of the American Arbitration Association. The dispute shall be referred to three (3) arbitrators knowledgeable with respect to the service contract industry. One arbitrator shall be chosen by each party and the two chosen shall promptly select a third arbitrator. If either party refuses or neglects to appoint an arbitrator within thirty (30) days after the receipt of written notice from the other party requesting arbitration and naming its arbitrators, the requesting party may name an arbitrator for the other party. Each party shall submit its case to the three (3) arbitrators within thirty (30) days of the appointment of the third arbitrator unless such time is extended by the arbitrators or a majority of them or by agreement between the parties. The decision of a majority of the arbitrators shall be final and binding on SIDECARS, AutoGard and/or Representative. SIDECARS, AutoGard and/or Representative shall each bear the expense of its own arbitrator, or one-half of the expense of two (2) arbitrators if both are appointed by the requesting party as provided above, and shall jointly bear and equally bear with the other the expense of the third arbitrator and of the arbitration. Any such arbitration shall take place in Joplin, MO.
- All written notices required under this Agreement shall be deemed to be sufficiently given and effective if a copy thereof has been mailed by United States certified or registered mail, return receipt requested, in an envelope properly stamped and addressed or delivered by facsimile to the appropriate address or number indicated herein. Notice to the parties, directed to the attention of the signing representative, shall be sent to the following addresses or such other addresses either party may theretofore have furnished by written notice to the other party:
If to SIDECARS:
532 S. Main Street Joplin, MO 64801 Attn: Garen McMillian Copy to:
If to AutoGard:
14301 Caliber Dr., Suite 100 Oklahoma City, Oklahoma 73134 Attn: Shawn Rohrer
- Binding Effect. This Referring Agent Agreement shall be binding upon the parties hereto, and their respective successors, heirs and assigns. No party may assign any of its rights or obligations under this Agreement without prior written consent of the other.
- Counterparts. This Referring Agent Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument.
- Entire Agreement. This Referring Agent Agreement is the entire agreement between the parties, and supersedes any and all previous agreements, negotiations or understandings, written or oral, between the parties.
- Integrity. SIDECARS has agreed that no spiff or kickback payments to anyone inside or outside of Representative will take place based on our sales or our relationships. If any financial benefits are to be rewarded over and above this agreement, they would apply to the Representative.
- Modification. This Referring Agent Agreement may only be modified, amended or supplemented by a writing executed by the Representative, SIDECARS and AutoGard. No Waiver. No term or provision of this Referring Agent Agreement shall be deemed waived, and no breach or default shall be deemed excused, unless such waiver, consent or excuse is in writing, and signed by parties hereto. A waiver by a party hereto of any breach or default by any other party to this agreement shall not constitute a continuing waiver or a waiver of any subsequent breach or default hereunder by any other party.
- Severability. If any part of this Referring Agent Agreement is declared unenforceable or invalid by a court, arbitrators or governmental agency or department, the remainder will continue to be valid and enforceable.
- Effective Date. This Referring Agent Agreement is effective as of the day set forth above, provided that this agreement has been duly executed by the parties hereto.
- AutoGard and/or SIDECARS may make available to Representative certain confidential information of AutoGard and/or SIDECARS previously non-disclosed to Representative. In exchange, Representative agrees to use such confidential information solely for the Program’s benefit.
- “Confidential Information” means any of AutoGard and/or SIDECAR’s proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers (including, but not limited to, customers of AutoGard and/or SIDECARS, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed to the Representative by AutoGard and/or SIDECARS either directly or indirectly in writing, orally or by drawings or observation, which Representative acknowledges includes the Program and its network of providers, administrators and servicing agents. Confidential Information does not include any of the foregoing items which has become publicly known and made generally available through no wrongful act or omission of the Representative or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof.
- Representative agrees at all times during the term of this agreement with AutoGard and SIDECARS and thereafter, to hold in strictest confidence, and not to use, except for the exclusive benefit of the Program, or to disclose to any person, firm or corporation without written authorization of AutoGard and/or SIDECARS, any confidential information of AutoGard and/or SIDECARS. Representative acknowledges that its fulfillment of the obligations, including, but not limited to, its obligation neither to disclose nor to use the Confidential Information other than for the Program’s exclusive benefit is necessary to protect SIDECARS and/or AutoGard’s confidential information and, consequently, to preserve the value and goodwill of SIDECARS and/or AutoGard. Representative further acknowledges the limitations of his obligations are reasonable, especially in light of SIDECARS and/or AutoGard’s desire to protect its confidential information.
RESTRICTION AGAINST COMPETITION
- Representative agrees that Representative shall not at any time during the period beginning on the Effective Date and terminating two (2) years after this Agreement terminates, without the express prior written consent of SIDECARS and AutoGard, that Representative will not entice, solicit or induce employees, agents or representatives of SIDECARS or AutoGard or any such party to the Program to cease their employment or other relationship with SIDECARS or AutoGard, or to engage or do business with any other business in which Representative is directly or indirectly involved.
- Representative agrees that Representative shall not at any time during the period beginning on the Effective Date and terminating two (2) years after this Agreement terminates, without the express prior written consent of SIDECARS and AutoGard, that Representative will not entice, solicit or induce any party to the Program or any service contract provider of SIDECARS or AutoGard to cease its business or other relationship with SIDECARS or AutoGard in order to engage or do business directly or indirectly with Representative with regard to the type of business for which the lending institution was directly or indirectly involved with SIDECARS or AutoGard regarding the Representative.
- Representative expressly acknowledges and agrees that the covenants set forth in Sections 10 and 11 above are reasonable and necessary to protect the legitimate business interests of SIDECARS and AutoGard and that enforcement of these covenants will not prevent Representative from earning a livelihood. Representative further agrees and acknowledges that theses restrictive covenants are intended by the parties to be enforceable following termination of this Agreement.
- Representative agrees that any breach of the restrictive covenants set forth in Sections 10 and 11 above would cause serious and irreparable damage to SIDECARS and AutoGard, the exact amount of which would be difficult to ascertain. Consequently, the Representative agrees that in the event of such a breach, SIDECARS and AutoGard shall be entitled as a matter of right to obtain immediate injunctive relief or specific performance without the posting of a bond, and that these remedies shall be in addition to, and not in lieu of, any other remedies which may be available to SIDECARS and AutoGard in law or in equity. In the event that any of these restrictions shall be determined by any court of competent jurisdiction to be unenforceable in part based upon a determination that they are not reasonably limited in time, the provisions shall remain in full force and effect as to that period of time determined to be reasonable by the court. In the event that SIDECARS and AutoGard seeks injunctive relief in order to enforce any of the restrictive covenants above, upon finding such a breach, the restrictions are intended to be enforced for the full one-year period from the date that the court issues such injunction.
- In the event that SIDECARS and AutoGard must bring legal action to enforce or seek a remedy for any breach of the provisions of Sections 10 or 11 of this Agreement and Representative is found by a court to have breached any of these provisions, Representative agrees to reimburse AutoGard and/or SIDECARS for any and all expenses, including reasonable attorneys' fees and court costs, incurred by it in enforcing the terms of this Section of the Agreement.
IN WITNESS WHEREOF, the Representative, AutoGard and SIDECARS have executed this Referring Agent Agreement as of the day and date set forth above.