NETWORK PROGRAM CONTRACTOR AGREEMENT 

THIS NETWORK PROGRAM CONTRACTOR AGREEMENT (this “Agreement”) is entered into as of the date set forth on the signature page hereto by and between Accuserve Solutions, Inc. on behalf of itself and its affiliates (“Company”) and ____________________ (“Contractor”). Company and Contractor are each individually referred to as a “Party” and collectively referred to as the “Parties”. 

WHEREAS, Company assists insurance carriers (“Insurers”) by managing claims filed by their insureds and other claimants (each a “Claimant”) and coordinating and managing repairs and other services through a network of independent general and specialty contractors using common industry-established estimating systems with common pricing databases and communicating through an electronic system (the “Network Program”);

WHEREAS, Contractor provides repair, remediation, mitigation, restoration, replacement, and/or other services of the type that are included in the Network Program (the “Services”), and wishes to perform such Services under the Network Program. 

NOW THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:   

1.                Enrollment.  Subject to the terms and conditions of this Agreement, Company hereby enrolls Contractor in Company’s Network Program, whereby Contractor shall from time to time accept project assignments (“Network Program Assignments” or “Assignments”) to perform certain Services pursuant to agreements to be entered into with Claimants. In order to enroll in the Network Program, Contractor shall deliver, in a form acceptable to Company, the following documents: (i) a certificate or certificates of insurance evidencing the required coverages set forth herein or an exhibit attached hereto; (ii) evidence that Contractor possesses the necessary licenses, registrations, or other similar certificates for Contractor to perform the Services in the jurisdiction in which the Services will be performed; and (iii) such other documentation as reasonably requested by Company. 

2.                Services.   Contractor agrees to perform accepted Network Program Assignments sent to Contractor by Company from time to time in accordance with the Network Program Contractor Agreement General Terms and Conditions which are attached hereto and incorporated herein by this reference, any applicable Service Level Agreement (“SLA”) established by Company and/or the Insurer, which shall be available to Contractor upon request, and in accordance with the applicable exhibits which are attached hereto and incorporated herein by this reference. Network Program Assignments shall be made through the electronic system stipulated by Company or a specific Insurer. 

3.                Network Program Fees.  The fees and revenue sharing percentages (collectively, the “Program Fees”) under the components of the Network Program are described in the applicable exhibits attached hereto and incorporated herein by this reference.  Failure of Contractor to pay Company any amounts due Company is a material breach of this Agreement.  In addition to any other remedy that may be available to Company pursuant to this Agreement or applicable law, Contractor hereby authorizes Company to deduct any amount owed to Company by Contractor from any payments owed to Contractor by Company.

4.                Term.  This Agreement shall remain in effect until terminated by either Contractor or Company.  Either party may terminate this Agreement, at any time, by giving the other party written notice of its desire to terminate this Agreement at least thirty (30) days in advance of the termination date.  

5.                Notices.  Any notice required or permitted under this Agreement may be given by personal delivery, email, or by ordinary mail to the parties at the addresses set forth on the signature page hereto. Notice shall be deemed given when personally delivered, emailed or three (3) business days after being mailed by U.S. certified mail, postage prepaid, or by reputable courier service with package tracking ability (e.g., Fed Ex or UPS) and addressed to the address set forth on the signature page hereto (or to such other address for notice as a Party may subsequently designate in accordance herewith). 

NETWORK PROGRAM CONTRACTOR AGREEMENT 

6.                Further Assurances.  The Parties agree to execute and deliver such additional documents and to take such other actions and do such other things as may be necessary to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.

7.                Entire Agreement.  This Agreement, including the General Terms and Conditions, the applicable SLAs, and the attached exhibits which are attached hereto and incorporated by reference, constitutes the entire agreement between the Parties and supersedes all prior statements, negotiations, representation, or agreements, either oral or written, related to the Services.  This Agreement may only be modified or amended (i) by means of a written document that is executed by authorized representatives of Company and Contractor; or (ii) by Company upon thirty (30) days’ notice to Contractor.  If Company notifies Contractor that this Agreement is going to be amended, Contractor shall have thirty (30) days to object to the amendment, in which case Company shall have the option of waiving the amendment as to Contractor or immediately terminating this Agreement. In the event of any conflict in the terms of this Agreement or the Exhibits attached hereto, the more specific criteria shall prevail. 

8.                Counterparts; Electronic Signatures.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.  The parties may execute this Agreement and all other agreements and documents contemplated by this Agreement and exchange counterparts of such documents by means of electronic mail and the parties agree that the receipt of such executed counterparts shall be binding on such parties and shall be construed as originals. Each party agrees that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.

9.                Incorporated Contract Documents and Exhibits.  The contract documents and exhibits listed below are attached hereto and incorporated herein by reference. By executing this Agreement, Contractor acknowledges having received, read, understood and agreed to all terms and conditions contained therein.

Capitalized terms used herein but not defined shall have the meaning ascribed to such terms in the Network Program Contractor Agreement, to which these General Terms and Conditions are incorporated by reference. 

1.                Work Site Investigation.  Contractor agrees not to rely on any written or oral information or representations that Company may have made regarding any work site (each a “Work Site”) in determining the extent of Services at each Work Site and to make its own determination of required Services.  In the event of a discrepancy between Contractor’s determination of necessary Services and Company’s information, Contractor agrees to immediately notify Company and follow any instructions given by Company.  Contractor shall ascertain whether any drawings and specifications applicable to any Services are at variance with any applicable governmental requirements or current industry standards before beginning any Services.  If Contractor discovers any variance, it shall promptly notify Company in writing and follow any instructions given by Company.  To the extent applicable, Contractor agrees to update the subject building plans of any Work Site where Contractor provides Services to show any and all changes in arrangement or layout of such Work Site or deviations to the drawings and to return all drawings to Company.

2.                Material Purchasing.  As part of the Network Program, Company has established relationships with approved manufacturers, distributors, and suppliers to supply materials for Network Program Assignments (collectively, “Network Suppliers”). Contractor agrees that all approved materials and supplies purchased for work done through the Network Program shall be purchased through a Network Supplier. Upon approval, Company will issue Contractor a purchase order number unless otherwise agreed to by Company in writing in advance or otherwise required by the Claimant or the Insurer.  Contractor shall be responsible for, and neither Company nor the Insurer shall be obligated to pay for, any materials purchased by Contractor in excess of those set forth on the scope of loss or other estimate approved by the Insurer and Company.  Company may set off or recoup any costs incurred by Company for excess materials included on any purchase order against any amount for which Company determines in good faith Company is liable to Contractor.  Contractor represents, warrants and covenants that Contractor has good title to, or lawful right to use and provide for the purposes of the Agreement, any materials furnished by Contractor hereunder, free and clear of all liens, claims, and encumbrances that would interfere with Contractor’s performance under the Agreement. 

3.                Work Site Safety.  Contractor shall protect the health, safety, and welfare of the Claimant, Contractor’s employees and subcontractors, and third parties from any danger associated with the Services.  In the event that Contractor is aware of a condition at the Work Site that constitutes a clear and present danger to health or safety (an “Emergency”), Contractor agrees to take whatever measures are reasonable and prudent under the circumstances to minimize the danger.  Contractor shall immediately advise Company of the Emergency and follow whatever directions Company may specify.  Any charges incurred by Contractor in responding to an Emergency shall be dealt with as if they were incurred in connection with the provision of Services.

4.                Claimant Complaints.  In the event the Insurer or Claimant reports any Contractor-related issues to Company, Contractor shall assist in issue resolution. Contractor agrees to respond to all inquiries within four (4) hours and to provide full cooperation with all investigations, including submitting required documentation with the intention of reaching resolution with the Claimant. Failure to fully cooperate with any issue resolution investigations or inquiries will lead to suspension and/or termination from the Network Program at Company’s sole discretion. Upon the request of the Insurer or Claimant, Company reserves the right to immediately remove Contractor from a Work Site and reassign such Network Program Assignment to a new Network Program contractor. In the event of such removal, any amount and timing of payment to Contractor shall be made in Company’s sole discretion. 

5.                Service Area; Non-Exclusivity.  Contractor shall select a designated geographical service area in which Contractor agrees to perform Services (“Service Area”). Contractor shall maintain Contractor’s profile to accurately reflect all trade capabilities, services, and postal codes covered by Contractor. Contractor agrees that the Service Area designated in Contractor’s profile will not be subject to travel or trip charges. Contractor agrees and acknowledges that other contractors may perform services through Company and its affiliates in the Service Area and that Contractor has not been provided an exclusive territory wherein only Contractor will provide Services.  Contractor acknowledges and agrees that a Claimant may refuse to use Contractor, or may choose another Contractor, and that the Claimant’s decision will be final.  Contractor expressly acknowledges that neither Company nor any of Company’s affiliates or any other person or entity acting on their behalf has made any commitments as to the volume or type of work that it may refer to Contractor hereunder, or to any amount of revenue or income that will received or earned by Contractor pursuant to the Agreement. 

6.                Termination for Default.  Company may terminate the Agreement immediately upon notice in the event: (i) Contractor seeks protection of or is placed under the jurisdiction of any bankruptcy court, shall be or become insolvent, or makes an assignment for the benefits of creditors; (ii) Contractor does not maintain a reasonable financial condition acceptable to Company or any Insurer; (iii) at the request of any Insurer for any reason; (iv) Contractor fails to maintain a minimum PME rating; (v) Contractor fails to comply with any Company Network Program requirement; (vi) Company or any Insurer has reason to believe Contractor is acting dishonestly or fraudulently or has been involved in any occurrences of theft, illegal activity, or malfeasance; or (vii) as may be provided elsewhere in the Agreement.  Should Contractor be given written notice of a breach of any provision of the Agreement, in the event the breach is curable, Contractor shall have twenty (20) days from the date of receiving said notice, or such shorter or longer period as may be specified by Company in its sole discretion, to cure the breach, and, if so fully cured, the Agreement shall remain in full force and effect. If the breach is not fully cured, the Agreement may be immediately terminated by Company at any time after the expiration of said notice period.

7.                Licensing.  During the term of the Agreement, and for any applicable warranty period for the Services, Contractor shall obtain and maintain any necessary license, registration, or other similar certificate or approval issued by the state and/or city, county, town, or other municipality where such Services will be performed (including, but not limited to, any contractor or sales person licenses), and shall not permit the expiration or invalidation, in any manner whatsoever, of any such license, registration, or other similar certificate or approval. Contractor shall immediately notify Company in the event that any license, registration, permit, or certificate necessary to provide the Services hereunder has lapsed or expired, has been revoked, or is otherwise no longer active. Failure to obtain and maintain the appropriate licenses, registrations, certifications, and work permits for work completed on any Network Program Assignment will result in suspension and/or termination from the Network Program at Company’s sole discretion. Contractor shall be responsible for all costs associated with obtaining any necessary license, registration, certification, or building permit to complete work on any Network Program Assignment. 

Notwithstanding the foregoing, Company shall reimburse Contractor for the costs incurred by Contractor to obtain any necessary building permits, excluding use tax.  

8.                Waste.  Contractor shall minimize and properly dispose of any waste, including, but not limited to, bio-hazardous waste, generated by the Services, and will comply with all federal, state, or local environmental laws pertaining to the disposal of such waste.

9.                Employment Matters.  Contractor agrees to comply with all applicable laws prohibiting discrimination, including, but not limited to, laws prohibiting discrimination on the basis of race, creed, color, national origin, sexual orientation, sex, or age.  Contractor shall only employ or contract with workers properly documented under applicable federal and state law to work in the United States.

10.                Subcontractors.  It is the responsibility of Contractor to screen and perform due diligence on the adequacy, reputation, and quality of each subcontractor used by Contractor.  Contractor may use subcontractors when handling general contracting Network Program Assignments, subject to the restrictions set forth herein.  When utilizing subcontractors, employees, or laborers, Contractor shall remain responsible for any Services provided or performed by any subcontractor, employee, or laborer to the same extent as if Contractor had provided or performed the Services.  Subcontractors shall be fully licensed and insured where required and trained in all areas within which they are providing services.  Contractor’s use of a subcontractor shall not reduce Contractor’s obligations under the Agreement and all Services performed by a subcontractor shall be in compliance with the terms and conditions of the Agreement.  Failure to adhere to these standards may result in suspension or termination of Contractor from the Network Program.  If Contractor chooses to engage a subcontractor, it is expressly agreed that Company has no contractual relationship or obligation to the subcontractor.  Furthermore, Contractor agrees to take all such actions as necessary and as permitted by applicable law to restrict subcontractors from filing liens on properties or demanding payments from Company or any third party other than Contractor.  Contractor shall obtain and furnish to Company lien waivers, in a form acceptable to Company, on behalf of Contractor and all subcontractors used in the performance of the Services.  If any lien or other encumbrance or any claim of nonpayment for labor, materials, or supplies furnished to Contractor is asserted, claimed, or filed that arises out of the performance of Services, notwithstanding the furnishing of said lien waivers or sworn statements by Contractor or the making of any payments to Contractor, Contractor shall protect, indemnify, hold harmless, and defend Company, the Claimant, and the Insurer, and their respective successors and assigns, from and against all such liens and encumbrances and all costs, fees, losses, damages, and expenses (including but not limited to attorneys’ fees and litigation expenses) in connection therewith and immediately take such actions as necessary to satisfy such lien.  Any such assertion or claim may be treated by Company as a default under the Agreement and Company may take whatever action it deems necessary, including retaining any and all fees due Contractor, to mitigate its damages and charge the cost and expense thereof to Contractor.

11.                Background Screening.  During the term of the Agreement and prior to Contractor performing any Services, Contractor and any of its principals, owners, employees, subcontractors, affiliates, or related parties shall be subject to a criminal background check (“Background Screening”) at the request of Company. Contractor will be not eligible to perform Services under the Agreement if a Background Screening reveals felony or misdemeanor convictions involving mistrust, fraud, theft, moral turpitude, or acts jeopardizing the safety of others, or is otherwise deemed in violation of any local, state, or federal laws. Contractor shall adequately screen to ensure all of Contractor’s principals, owners, employees, subcontractors, affiliates, or related parties are in compliance with all laws and are United States citizens or have all of the documents required by the U.S. Citizenship and Immigration Services and its predecessors as proof of employment eligibility. 

12.                Drug and Alcohol Policy.  Contractor shall establish and enforce a drug and alcohol policy with respect to Contractor's employees, agents, and subcontractors that complies with all applicable federal, state, and local drug and alcohol related laws and regulations.  In addition, Contractor agrees to comply with any drug and/or alcohol policy established by the Insurer or Company for any Work Site where the Services will be performed by Contractor. Contractor agrees to immediately remove from any Work Site any employee, agent, or subcontractor of Contractor who is in violation of the drug and alcohol policies of Contractor, the Insurer, or Company.

13.                Insurance.  During the term of the Agreement, and for a period of three (3) years thereafter, Contractor shall provide the insurance coverage outlined below for all Services. Upon entering into the Agreement, Contractor shall provide Company with a certificate of insurance and copies of any additional insured and waiver of subrogation endorsements required in this section demonstrating compliance with this section prior to providing Services. The certificate of insurance shall be updated at the time of any renewal or change in coverage. Upon request, Contractor shall provide Company with copies of the insurance policies required under this section. Company shall be notified in writing at least thirty (30) days in advance should such coverage be canceled or revoked for any reason. The required insurance policies must be issued for no less than a 12-month period. All insurance carriers used by Contractor to comply with the provisions of this section shall carry an A.M. Best rating of A- VII or better. All polices must cover any subcontractor used by Contractor. Contractor shall carry the following insurance:

a.                Commercial General Liability (“CGL”) insurance with limits of not less than $1,000,000 each occurrence for bodily injury and property damage, $1,000,000 for personal and advertising injury, $2,000,000 General Aggregate, and $2,000,000 Products and Completed Operations Aggregate. The CGL shall name Company as an additional insured for operations per ISO form CG 20 10 07 04 and completed operations per ISO form CG 20 37 07 04 or equivalent forms. The CGL shall include a waiver of subrogation in favor of Company. The CGL shall provide that Contractor’s CGL is primary and non-contributory to any insurance maintained by the additional insureds. The CGL insurance must cover any subcontractors used by Contractor.

b.                If required by Company, separate Contractors Pollution Liability (“CPL”) insurance with limits of liability not less than $1,000,000 each occurrence/combined single limit for property damage, bodily injury, and personal injury liability, or a combined CGL and CPL insurance policy with minimum aggregate limits of $2,000,000 and a minimum limit of $1,000,000 for each line of coverage. The CPL policy shall specifically include within the definition of "pollutants" mold and/or microbial matter and/or fungus and/or biological substance. The CPL policy shall not exclude claims arising from asbestos and lead. The CPL coverage shall include Company as an additional insured and such policy shall have any "insured versus insured" exclusion deleted with respect to Company. The CPL coverage shall include a waiver of subrogation in favor of Company. 

c.                Workers’ compensation insurance with statutory limits in any state where Contractor operates and employer’s liability insurance with limits of liability not less than $1,000,000 for bodily injury by accident or disease. Contractor's employer’s liability insurance shall include stop gap coverage in monopolistic states. To the extent permitted by law, Contractor and its Insurer shall waive subrogation against Company.

d.                Automobile liability insurance limits of not less than $1,000,000 combined single limit per accident for property damage and bodily injury. The insurance shall apply to all vehicles owned, leased, rented, hired, or borrowed by Contractor. The policy shall include a waiver of subrogation in favor of Company.

e.                If requested by Company, Contractor shall provide bailment insurance with limits of liability not less than $250,000 each occurrence for loss or damage to any property of others under the care, custody, or control of Contractor.  The bailment coverage shall include Company as an additional insured and such policy shall have any "insured versus insured" exclusion deleted with respect to Company. The bailment coverage shall include a waiver of subrogation in favor of Company.  Contractor shall provide Company with a certificate of insurance and copies of any additional insured and waiver of subrogation endorsements demonstrating compliance with this section prior to providing any Services. The certificate of insurance shall be updated at the time of any renewal or change in coverage. Upon request, Contractor shall provide Company with copies of the insurance policies required under this section. Company shall be notified in writing at least thirty (30) days in advance should such coverage be canceled or revoked for any reason. The required insurance policies must be issued for no less than a 12-month period. All insurance carriers used by Contractor to comply with the provisions of this section shall carry an A.M. Best rating of A- VII or better. All polices must cover any subcontractor used by Contractor. 

14.                Violations.  All assignments referred to Contractor by Company or an Insurer during the term of the Agreement shall be deemed to be Network Program Assignments subject to all Network Program requirements, including, but not limited to, billing requirements, which Company and Insurer expressly reserve the right to change from time to time.  Removing Network Program Assignments from the Network Program causes significant harm to the business of Company.  Therefore, any solicitation or other attempts to remove Network Program Assignments from the Network Program are expressly prohibited and will result in Contractor owing Company $1,000 in liquidated damages per Network Program Assignment and shall subject Contractor to immediate potential suspension or expulsion from the Network Program at Company’s sole discretion in addition to any legal remedies to which Company may be entitled pursuant to the Agreement or applicable law.  Contractor shall be solely responsible and liable for any warranty or escalation issues with respect to any Network Program Assignments taken out of the Network Program.  Contractor shall not solicit, discuss or enter into any other agreements, whether written or oral, with any Claimant in connection with a Network Program Assignment for other potential opportunities and services for work not related to the Network Program Assignment without the written consent of Company.  Contractor shall not during the term of the Agreement make any referrals of other contractors or tradespeople to any Claimant or to anyone to whom Contractor knows or has reason to believe Contractor or another member of the Network Program will provide, or to anyone to whom Contractor or another member of the Network Program is providing or has provided, Services.  Under no circumstances shall Contractor recommend to a Claimant that a public adjuster should be engaged. Contractor acknowledges and agrees that neither Contractor nor its authorized representatives shall act as or hold itself/himself/herself out as public adjusters or represent Claimants or negotiate with any Insurer on behalf of Claimants in connection with any insurance claim.  Any violation of this section shall be grounds for immediate termination of the Agreement. 

15.                Representations and Warranties.  Contractor represents and warrants that it is duly organized, validly existing, and in good standing and has all requisite power and authority to carry on its business as now conducted in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business.  Contractor represents and warrants that all action on the part of Contractor, and its officers, directors, managers, shareholders, or members, necessary for the authorization, execution, and delivery of the Agreement has been taken. The performance of all obligations of Contractor hereunder constitutes a valid and legally binding obligation of Contractor, enforceable against Contractor in accordance with the terms and conditions hereof.  Contractor represents and warrants that Contractor is currently in compliance with, and at all times during the term of the Agreement shall continue to comply with, all applicable laws, rules, regulations, licensing, and registration requirements necessary to provide the Services hereunder. Contractor represents and warrants that Contractor possesses the technical expertise and other knowledge and abilities required to timely and fully meet Contractor’s obligations under the Agreement, and represents, warrants, and covenants that no claim, litigation, proceeding, arbitration, investigation, or material controversy is pending, has been threatened, or is contemplated that would have a material adverse effect on Contractor’s ability to enter into the Agreement or to provide the Services hereunder.

16.                Warranties.  Contractor warrants that all Services will be performed and completed in a good, professional and workmanlike manner, in accordance with industry trade standards and applicable laws and will be free from defects in workmanship for five (5) years from completion of the work or as otherwise set forth in any applicable SLA, and that all materials provided in the performance of Services will be free from defects for a period of time equal to the duration of the applicable manufacturer’s warranty.  Contractor shall be responsible for the cost and administration of all warranty work arising from Contractor’s Services.  If Contractor is unable to satisfactorily remedy any defects, Company has the right to assign a third party to remedy the defects at the expense of Contractor, and Company shall have the right to recover the cost of the warranty work from Contractor.  Contractor shall be responsible for all damage caused by it, and its employees, agents, and subcontractors, in the performance of Services.  Contractor shall be responsible for any defective or improper work or material caused by its failure to comply with directions given by Company, and the failure of Contractor to comply with any applicable federal, state, or local laws, including, but not limited to, applicable building codes.  Notwithstanding any termination of the Agreement, Contractor agrees to perform any warranty work arising from Services performed by Contractor while in the Network Program. The obligations of this section shall survive the expiration or termination of the Agreement.

17.                Indemnification.  To the fullest extent permitted by applicable law Contractor shall indemnify, defend and hold harmless Insurer, Company, and Claimants, and their affiliated entities and each of their directors, officers, managers, agents, employees, successors, assigns, and representatives (each an “Indemnified Party”), from and against any and all suits, actions, liens, proceedings, liabilities, settlements, claims, damages, losses, and attorneys’ fees, costs, and expenses (“Claims”), arising out of, related to or in any way connected with the acts or omissions of Contractor, or anyone employed, hired, contracted, or retained by Contractor or acting on Contractor’s behalf, including subcontractors (collectively, “Contractor’s Representatives”), or which is in any way related to Contractor’s or Contractor’s Representatives’ performance of the Agreement, any Services, or any work of Contractor or Contractor’s Representatives, including, but not limited to, any repair, remediation, restoration, and/or replacement of any Claimant’s property, or any breach of the Agreement or any other agreement. In addition, Contractor shall defend, indemnify, and hold harmless each Indemnified Party against any Claims arising out of any violation of law or theft, loss, deterioration, or destruction of any building materials, equipment, supplies, or any other property or construction items at a Work Site or otherwise. Company shall have the right to withhold from any payments due Contractor under the Agreement the amount of any Claims with respect to which Contractor is obligated to indemnify Company or as may be reasonably necessary to protect Company against future Claims. 

18.                Limitation of Liability.  THE PARTIES ACKNOWLEDGE AND AGREE THAT COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, AND CONTRACTOR’S SOLE REMEDY THAT MAY BE HAD AGAINST COMPANY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), WITH RESPECT TO ANY NETWORK PROGRAM ASSIGNMENT SHALL BE LIMITED TO THE AMOUNT OF PROGRAM FEES PAID TO COMPANY UNDER THE AGREEMENT WITH RESPECT TO THAT NETWORK PROGRAM ASSIGNMENT. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

19.                Invoicing Matters.  In the event Company refers work to Contractor that is not managed by Company, Contractor agrees to pay Company a referral fee of five percent (5%) of the total amount invoiced for work arising from the referral.  Any referral fee for work that is managed by Company will be set forth herein.  Contractor agrees that all invoices for Services will be submitted directly to Company only.  Contractor will not invoice any Insurer, Claimant, or insurance adjuster directly unless otherwise instructed by Company. Any funds received directly from an Insurer to which Company is entitled shall be immediately remitted to Company. Company will pay approved invoices upon receipt of all required documentation (including, but not limited to, the Job Completion and Satisfaction form signed by the Claimant) and funds from the Insurer.  Contractor agrees to pay Company $10 per invoice for manual payments.  Manual payment is any form of payment not conducted by electronic data interchange (“EDI”).  Contractor authorizes Company to deduct the service charge from any payment to be made to Contractor.  There is no service charge for EDI or web-based payment. Company reserves the right to assess additional service charges upon fourteen (14) days advance notice to Contractor.  Company may arrange for Claimants to receive interest financing for Services not covered by an Insurer.  In the event Contractor wishes to participate in such a financing offer, Company and Contractor will enter into an amendment to the Agreement specifying the terms of said arrangement.

20.                Confidentiality.  Company has developed and is continuing to develop processes, materials, and other information that it considers to be its confidential, proprietary work product and information (“Confidential Information”). This Confidential Information includes, but is not limited to confidential information set forth in Company memos, emails, and other forms of communication, training materials, quality assurance programs, presentation materials, application materials, forms, and software, management forms, processes, and procedures, performance metric evaluations, re-inspection programs, unit pricing, pricing policies, Company developed forms, software in various stages of development, marketing materials, marketing techniques, and any manifestation of Company business ideas or concepts. This Confidential Information may represent trade secrets and may be copyrighted. In the course of its business, Company may divulge to Contractor certain portions of this Confidential Information, and Contractor hereby agrees that Contractor shall: (i) receive the Confidential Information in confidence and refrain from disclosing or discussing any portion of the Confidential Information with any third person or entity; (ii) use the same degree of care in protecting the Confidential Information as Contractor does with Contractor’s own proprietary information, which shall be no less than reasonable measures of protection and safeguards; and (iii) not use or disclose the Confidential Information for any purpose other than in conjunction with performing the Services hereunder. The obligation to retain in confidence the Confidential Information as set forth above shall continue indefinitely until waived by Company in writing. Within seven (7) days after the termination or expiration of the Agreement or after the written request of Company, Contractor shall promptly: (i) return all Confidential Information and copies thereof; (ii) destroy all of its files and memoranda prepared based on Confidential Information; and (iii) provide Company with a written certification that all such information and materials have been returned or destroyed. Contractor acknowledges that Contractor may have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records, and specifications owned or licensed by Company or used by Company in connection with the operation of Company's business, including, without limitation, Company's business and product processes, methods, customer lists, accounts, and procedures, and information provided by Insurers. Contractor agrees that they will not disclose any of the aforesaid, directly or indirectly, to any party, or use any of them in any manner, either during the term of the Agreement or at any time thereafter, except as required in the course of providing Services hereunder. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creations, notebooks, and similar items relating to the business of Company, whether prepared by Contractor or otherwise coming into Contractor’s possession, shall remain exclusive property of Company. Contractor shall not retain any copies of the foregoing without Company's prior written permission. Upon the expiration of earlier termination of the Agreement, or whenever requested by Company, Contractor shall immediately deliver to Company all such files, records, documents, specifications, information, and other items in Contractor’s possession or under Contractor’s control. Contractor further agrees that Contractor will not disclose Contractor’s retention as an independent contractor or the terms of the Agreement to any person without the prior written consent of Company and shall at all times preserve the confidential nature of the relationship with Company and of the Services provided hereunder. Contractor will, at all times, protect and safeguard any data pertinent to Company, including, but not limited to, data contained or accessed within the Salesforce and Livegenic platforms, to ensure data are not removed from these platforms or used in any way outside the scope of the Agreement. 

21.                Nonsolicitation.  Contractor shall not, during the term of the Agreement and for a period of two years after the termination or expiration of the Agreement, solicit for employment or employ, whether as an independent contractor or otherwise, any person who is employed by Company or any of its affiliates during the term of the Agreement, without the prior written consent of Company. 

22.                Use of Company Name / Publicity.  Contractor is not permitted to use any name, logo, trademarks, or marks (collectively, “Marks”) of Company in any manner in the conduct of Contractor’s business without Company’s prior written consent. This includes, but is not limited to, advertising, sales promotions, written publications, written company communications, contracts, website, social media or other communications and other publicity related matters. Furthermore, Contractor acknowledges that Company is not authorized to use any of Insurer’s Marks. Should Contractor be terminated from the Network Program, Contractor shall immediately cease use of any Company Marks.  Contractor represents, warrants, and covenants that the Services do not infringe upon any intellectual property rights of any third party.

23.                Record Retention.  Contractor agrees to maintain adequate financial records, which Company, in its discretion, may reasonably request for review from time to time. Contractor shall establish and maintain documentation and records for all work performed under the Agreement for a period of no less than seven (7) years. Contractor agrees that Company may, in its discretion, conduct on-site audits of Contractor’s documentation and records upon reasonable notice.  Contractor agrees to maintain a good reputation, good credit, and sound financial stability acceptable to Insurers and Company, and if not, in Company’s or any Insurer’s sole discretion, Contractor may be terminated from the Network Program and the Agreement may be terminated by Company.  Contractor agrees to notify Company immediately if there is any material change in Contractor’s financial status during the term of the Agreement. The failure to immediately notify Company of any material change shall constitute a material breach of the Agreement subjecting Contractor to immediate termination from the Network Program, termination of the Agreement at Company’s option, and any other rights and remedies that Company may have against Contractor for such breach.

24.                Lien Waiver.  In consideration of the right to receive the benefits of the Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to the full extent permissible by applicable law, Contractor hereby expressly waives and releases for Contractor, for Contractor’s successors in interest and assigns, and for all subcontractors, and their successors in interest and assigns any and all claim or right of lien such parties now have or in the future may have upon any real property or any part thereof on account or as a result of the furnishing of labor and/or material in the performance of Services.  Contractor shall (i) execute and deliver notice or other documents as may be required under any law to make the foregoing waiver effective and (ii) obtain any necessary waivers from any subcontractors as required by law to make the foregoing waiver effective.  Any obligation to make any payment to Contractor for Services shall be conditioned upon Company’s receipt from Contractor of unconditional lien waivers from Contractor and all subcontractors.  This section shall survive the termination of the Agreement.

25.                Network Participation.  Company has established and will maintain Performance Metric Evaluations (“PME”) to track and measure the quality of the Services and workmanship provided by Contractor (the “Performance Objectives”) as established by Company or the Insurers, which shall be available to Contractor upon request. Contractor understands that performance on these critical PMEs will drive assignment volumes and agrees that any failure to satisfactorily meet such PMEs, in addition to any other remedies, shall be grounds for suspension or termination from the Network Program. Contractor acknowledges receipt of a copy of the current PMEs, understands how PMEs work, agrees to maintain a satisfactory PME rating (as published by Company from time to time) at all times, and agrees that failure to do so shall be a material breach of the Agreement. PME scoring will be conducted on an ongoing basis. Company reserves the right to reasonably modify PMEs, as it deems necessary, so long as modifications apply to all contractors in the Network Program. When PME performance improvement is required, a written request will be given to Contractor by Company and Contractor agrees to immediately take corrective action to improve performance as requested. Should performance not improve within a reasonable time period (not to exceed thirty (30) days), Contractor shall be subject to suspension or termination from the Network Program.  

26.                Training.  Prior to receiving any Network Program Assignments from Company,

Contractor shall participate in any training required by the Insurer or Company.  Training shall be held at a

facility or a virtual location designated by Company, and Contractor will be provided reasonable notice of the training date. If applicable, Contractor shall pay the costs and expenses incurred by Contractor’s employees to attend or participate in such training.  

27.                Independent Contractor.  Nothing in the Agreement is intended nor shall it be construed to create an employer/employee relationship, an agency relationship, or a joint venture.  This section shall survive the termination of the Agreement.

28.                Severability.  If any provision contained in the Agreement is held invalid, illegal, or unenforceable, then the Agreement will be construed as if such provision had never been contained herein.

29.                No Personal Liability.  No officer, director, Claimant, agent, or employee of a Party to the Agreement shall be personally or individually liable to the other Party hereunder, but the aggrieved Party will look solely to the other Party for satisfaction of the obligations set forth in or otherwise arising out of the Agreement.  This section shall survive the termination of the Agreement.

30.                Assignment.  Contractor shall not assign the Agreement or otherwise transfer, subcontract, or delegate any of its rights and/or obligations hereunder, including the right to receive money or proceeds, without Company’s prior written consent and any attempt to do so shall be null and void.  

31.             Dispute Resolution.  The Parties shall first attempt to resolve any dispute through discussion by senior-level representatives from each Party.  Such representatives shall exchange information, discuss the dispute, and negotiate in good faith in an effort to resolve the dispute.  The representatives may agree to attempt to resolve the dispute through mediation.  If the dispute cannot be resolved, and is not in mediation within thirty (30) days of a Party notifying the other Party of a dispute, the dispute shall be fully and finally settled and determined by binding arbitration in accordance with the then-current version of the rules of the American Arbitration Association (the “Rules”), and judgment upon an award arising in connection therewith may be entered in any court of competent jurisdiction.  The Parties shall be allowed to conduct reasonable discovery according to limits set by the arbitrator.  All information exchanged by the Parties, and the results of the arbitration, shall be considered Confidential Information under the terms of the Agreement and shall be held in confidence by all Parties.  The arbitration shall be held before a single arbitrator selected in accordance with the Rules.  The arbitrator must have experience in commercial transactions.  Any arbitration, mediation, court action, or other adjudicative proceeding arising out of, related to, or in connection with the Agreement shall be held in Springfield, Ohio, or, if such proceeding cannot be lawfully held in such location, as near thereto as applicable law permits.  All arbitration proceedings and submissions, and the arbitration award, shall be in the English language and the federal rules of evidence shall apply to all proceedings.  The arbitrator shall apply Ohio law, excluding its conflicts of laws provisions, to all aspects of the dispute. Notwithstanding the foregoing, a Party may apply to the courts of Ohio for preliminary injunctive relief to prevent the disclosure of Confidential Information.  The Parties hereby irrevocably consent to the jurisdiction of any state or federal court sitting in Clark County, Ohio, for all purposes in connection with the Agreement.  This section shall survive the termination of the Agreement.

32.             Waiver.  No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of such provision or any other provision hereof and no waiver shall be effective unless made in writing.

33.             Cumulative Remedies.  All rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

34.             Attorney’s Fees.  In the event that any action or arbitration is brought by either Party to enforce or interpret the terms of the Agreement, in addition to any other relief that may be awarded, the prevailing Party shall be entitled to its costs and reasonable attorneys’ fees.  This section shall survive the termination of the Agreement.

35.             Force Majeure.  Company shall not be liable for any delay or failure in the performance of any obligation under the Agreement or for any loss or damage (including indirect or consequential damage) to the extent that such nonperformance, delay, loss, or damage results from acts of god, fires, floods, hurricanes, tornadoes, tsunamis, earthquakes, explosions, storms, wars, acts of terrorism, hostilities, blockades, public disorders, pandemics, quarantine restrictions, embargoes, or compliance with any law, order, or control of, or insistence by, any governmental or military authority, or any other event affecting the performance of Company that is not reasonably within the control of Company. 

This Exterior Restoration Services Exhibit (this “Exhibit”) is made and entered into effective as of the date set forth on the signature page hereto by and between Accuserve Solutions, Inc. on behalf of itself and its affiliates (“Company”) and ____________________ (“Contractor”), and is governed by the terms and conditions of that certain Network Program Contractor Agreement (the “Agreement”), entered into by the Parties.  

Definitions

“Exterior Restoration Services” shall mean and include roofing, siding, gutters, detached structures and fences. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Agreement. 

Contractor's Obligations

1.01 Contractor shall use its best efforts to accept an Assignment and arrive at the Work Site within two hours of any dispatch made by Company (or a later time if requested by the Claimant).  If Contractor is unable to arrive at the Work Site within two hours from the time of notice (or a later time if requested by the Claimant), Contractor shall immediately inform Company, in which case Company may refer another Contractor to the Work Site.  

1.02 Contractor shall arrive at the Work Site with with proper apparel, chalk, pitch gauge, shingle gauge, business card, software applications, badge and lanyard.  Contractor must prepare a detailed and accurate scope sheet for each such Network Program Assignment regardless of whether such Network Program Assignment will ultimately result in a job for Contractor. Company does not guarantee or represent that Contractor will perform the repair and/or replacement for each Network Program Assignment it is assigned, and Contractor acknowledges that the Claimant has the absolute right to determine who will repair his or her property.  Contractor shall review the approved estimate before reviewing with Claimant and provide any requested revisions to Company estimator.  Contractor shall utilize the Network Program’s approved reporting software systems and shall submit all required documentation in an electronic format for each estimate in accordance with Network Program requirements. Company expressly reserves the right to change the Network Program’s approved systems and related guidelines from time to time. Transmission of estimates directly to the Claimant or Insurer via email, fax, mail, and/or other means is not permitted. Contractor shall be solely responsible for any costs incurred by Contractor for the use of any required software system. Contractor shall utilize the then current Xactimate pricing database approved by Company for the preparation of all estimates.  Any deviations or changes to the approved pricing database, without pre-approval of the Insurer or Company, are prohibited.

1.03 Contractor shall secure a written work authorization (the “Work Authorization”), and contract, compliant with all local, state and federal laws and regulations, from the Claimant prior to making any repairs, and agrees that in doing so: (i) Contractor shall present to the Claimant, prior to the request for Work Authorization, a copy of the Insurer’s introductory letter when such letter is available; (ii) Contractor shall acknowledge the right of the Claimant to choose his, her or its own contractor and shall not use high pressure or unfair sales tactics; and (iii) the Work Authorization for property repairs may only be secured after completion of the inspection and estimate of damages.  Neither Company nor any Insurer shall be liable for any breach by Contractor of Contractor’s contract with the Claimant, and Contractor acknowledges that Contractor is solely responsible for, and will indemnify and defend Company and any Insurer against, any breaches or claims of breach of any obligations Contractor may have under any such contract.   

1.04 Contractor shall not begin work until Insurer approval of the estimate has been provided and a signed Authorization to Repair (“ATR”) has been obtained. Should Contractor violate this requirement, Contractor acknowledges and agrees that any payment owed to Contractor shall be limited to the undisputed amount of repairs performed by Contractor, as determined in the sole discretion of the Insurer, without regard to the actual costs incurred by Contractor. Contractor will not provide a copy of the repair estimate to the Claimant until Final Estimate (as defined herein) approval and authorization has been provided by the Insurer. Contractor understands and agrees that any violation of the Work Authorization procedure may subject Contractor to termination from the Network Program. The Work Authorization is only valid after the Insurer and the Claimant approve submitted estimates. In addition to any Claimant’s mandatory cancellation right established under state or federal law, the Claimant has the right to withdraw the Work Authorization if no work has been performed or materials ordered within three (3) days of executing the Work Authorization. 

1.04 Contractor shall be obligated to complete repairs on all Network Program Assignments in accordance with the Insurer’s approved estimate if Contractor is selected and the Claimant contracts with Contractor. Should Contractor not wish to complete the Network Program Assignment, Contractor shall first seek approval from Company, which may grant such approval at Company’s or the Insurer’s sole discretion. Contractor also agrees to order the scope of materials strictly required to complete the contractually agreed upon scope of work.  If excessive materials are ordered, Contractor shall be liable for the cost of the excess materials.

1.05 During the course of the work, Contractor shall (i) upload two in-progress production photos and two completion production photos to Salesforce, (ii) communicate any change of scope to Company immediately; (iii) complete the work within ten (10) days of Claimant’s execution of the ATR; (iv) upload two photos of the completed work; and (v) upload an executed Certificate of Satisfaction (“COS”) within three (3) days of job completion.  

•  
  45% of the Final Estimate for residential and commercial “asphalt shingle roof” replacements. For purposes hereof, “replacement” includes total and partial replacements. Tear off and removal services are paid out at the 45% split and roll-off dumpster fees are reimbursed 100% upon presentation of a valid receipt, but only if work is completed in an area where a roll off dumpster is required.
•  
  100% of the Final Estimate for emergency services, including board-up, shrink-wrap, and tarping services performed on an emergency basis. For purposes hereof, “emergency basis” shall mean Claimants requiring emergency services within one (1) hour of Contractor receiving the DRP or MRP Assignment.
•  
  92% of the Final Estimate for non-emergency roofing repairs.
• 92% of the Final Estimate for the line items on the Final Estimate related to all other work not related to roof replacements, emergency services, or non-emergency roofing repairs (“Other Trades”). For purposes hereof, “Other Trades” shall include, but not be limited to, specialty roofing (including entire-house flat roofs, concrete tile, slate, stone-coated steel, standing seam, metal roofs, etc.), water and fire restoration services, and restoration/remediation related to other nonroof perils.

2.02 No costs associated with obtaining building permits shall be included in the Final Estimate for purposes of determining the Program Fees. 

2.03 All Program Fees paid or payable to Company under the terms of the Agreement shall be based on the Final Estimate that is uploaded in the approved Network Program electronic management system. Final Estimates must clearly indicate the line items that will be or have been completed. Supplemental estimates will be captured and will be adjusted for appropriate Network Program Assignment fee billing. All Network Program Assignment fees will be billed based on the Final Estimate and will be billed at the time the job is completed and an executed Certificate of Satisfaction from the Claimant is collected by Contractor and provided to the Insurer, subject to the same terms and conditions of the Agreement. Network Program Assignment fees may be deducted from distributions by the Insurer. Any payments payable to Contractor by Company shall be calculated after approval from the Insurer, and paid out within five (5) business days. Contractor agrees that no disputes, supplements, or audits will be considered 90-days after the job is closed. Contractor agrees to provide prompt written notice to Company regarding any payment issues or disputed amounts with any Claimant, the Insurer, or Company. Company agrees to reimburse Contractor for the reasonable costs of obtaining dumpsters for the clean-up and deposit of all debris, trash, and refuse generated during the performance of Services. Company and Contractor agree that all invoices for Services will be presented within thirty (30) days and settled within sixty (60) days of receipt of the Certificate of Satisfaction.  Contractor, on behalf of Contractor and any subcontractor, waives payment of any invoices for Services presented more than thirty (30) days after the receipt of the Certificate of Satisfaction and assumes full responsibility therefor. 

2.04 No inspection fee will be paid on Exterior Restoration Assignments. 

2.05 Contractor may receive Inspection-Only Assignments from Company.  In consideration of Contractor’s Inspection Services, Contractor shall receive $100 for each inspection completed and approved by the Insurer.  In connection with any Inspection, Contractor may be required to provide interior or elevation measurements.  Contractor is prohibited from soliciting for the provision of any repairs, replacements, or other services on Inspection-Only Assignments from Company.  

2.06 In the event that Contractor abandons a Network Program Assignment prior to completion, Contractor shall pay Company a fee of $500 for cleanup of the property.  Such fee shall be without prejudice to any other right or remedy Company has or may have, and Company may set off or recoup such fee against any amount for which Company determines in good faith Company is liable to Contractor.  

For Exterior Restoration Services Assignments for United Services Automobile Association (“USAA”) Claimants, Contractor acknowledges and agrees to comply with and perform the following processes and procedures:

1.      Company shall contact Claimant within one (1) hour of receipt of an Assignment from USAA. A threeway conference call can be coordinated by the Company to provide a “warm” hand-off of the Claimant to the Contractor. Conference calls may be eliminated during a catastrophe or surge in Assignments based upon Company’s reasonable notification to USAA to maximize resource efficiency.

a.              If contact cannot be made within this time frame, Contractor shall insert a detailed explanation in the notes of the USAA’s designated estimating platform.

b.              If Company’s attempt to contact the Claimant is unsuccessful, Contractor shall contact the Claimant within one (1) hour of the initial Assignment and shall insert notes in USAA’s designated estimating platform.

c.              If confirmation from the Contractor is not received, a follow-up call to the Contractor from the Company shall be made to ascertain why the Claimant contact did not occur. The Assignment may then be cancelled and reassigned to another Contractor.

2.      Contractor shall obtain and upload a Claimant signed Work Authorization form prior to commencing Services.

3.      Contractor shall promptly notify the Insurer’s insurance adjuster (“Adjuster”) of changes to scheduled deliverables via notes in USAA’s designated estimating platform.

4.      Contractor and Company shall use USAA’s designated estimating platform and shall assign Company personnel to use such platform which have been properly trained on the use of USAA’s designated estimating platform. USAA may update, change, modify, or delete any functionality of the platform at any time. Contractor shall be acquainted to technology of USAA’s choice which assists with the completion of the estimate. Reference the ECG’s for the most recent solutions. Examples of technology solutions include but are not limited to: ITEL, Next Gear, etc.

5.      Contractor shall commence the inspection within two (2) business days of receiving the Assignment from Company, unless otherwise requested by a Claimant.

6.      Contractor shall upload the completed estimate and supporting images to USAA’s designated estimating platform within forty-eight (48) hours of completing the initial inspection. All photos shall be:

a.              Date and time stamped when uploaded within USAA’s designated estimating platform;

b.              Fully labeled to include location of damage, and damage description, in the same order as in the estimate;

c.              Of sufficient quantity to support the position given in the estimate; 

d.              High quality and minimum resolution of 1024x768 in .jpeg (using lowercase letters) format, unless otherwise communicated by USAA; and

e.              Provided as digital photographs, in a photo sheet within USAA’s designated estimating platform, for each Assignment and labeled appropriately.

7.      Contractor shall notify Adjuster within twenty-four (24) hours if the Contractor suspects fraud or potential subrogation opportunities.

8.      Contractor shall not make decisions as to coverages afforded or excluded under the contract or policy of insurance, nor shall Contractor discuss such issues with the Claimants.

9.      Contractor shall submit a final report, to include but not limited to: audit summary report, estimate audit report, photo report, variation report, ITEL if applicable, and received by USAA within two business days of completing the inspection.

10.   Contractors may provide supplemental captioned report(s) to USAA within three business days of the initial report if requested. Only affected captions need to be addressed in supplemental report(s).

11.   Company shall complete a technical and quality review on one hundred percent (100%) of the estimates and final reports within two (2) business days of the upload of the estimates or final report provided by a Contractor. Any revisions to the estimates or final report that are sent back to Contractor shall be completed and returned within one business day.

12.   Adjuster shall review and approve estimate within two business days of receipt. Any revisions will be sent back to Company and/or Contractor, completed and returned within one business day.

13.   Contractor shall capture a Claimant signed, paper or electronic, Certificate of Satisfaction (“COS”) and upload it to the USAA’s designated estimating platform.

14.   Contractor shall meet the following Service Level Objectives (“SLOs”) to be reported and measured on a monthly basis: