\r\n {siteConfig.brand} was developed in-house by an innovative team\r\n with over 25 years of experience in the multi-family industry\r\n ranging from property management to utility billing. Our own\r\n personal moving mishaps and valuable resident feedback have given\r\n us special insight into developing a software product we are proud\r\n of.\r\n
\r\n ) : null}\r\n\r\n {!team && !singleMode && siteConfig.id === 'mi' ? (\r\n\r\n {selectedMember ? (\r\n <>\r\n You can reach me directly at{' '}\r\n
\r\n Please reach out to one of us directly, or fill out the form\r\n below and we’ll get back to you.\r\n
\r\n )}\r\n\r\n {singleMode && selectedMember && (\r\n <>\r\n\r\n SMARTERCHOICE REVENUE SHARING AGREEMENT\r\n
\r\n\r\n\r\n This Revenue Sharing Agreement (this “Agreement\r\n ”) is made and shall become effective as of{' '}\r\n {moment().format('MM/DD/YYYY')} (the "\r\n Effective Date"), by and between SmarterChoice\r\n LLC, an Arizona Limited Liability Company, (hereinafter referred to as\r\n "SmarterChoice”), and {propertyName}{' '}\r\n (hereinafter referred to as "Client”).\r\n SmarterChoice and Client are hereinafter collectively referred to as the\r\n “Parties”, and each a “\r\n Party\r\n
\r\n\r\nRECITALS
\r\n\r\n WHEREAS, SmarterChoice is a web-based platform providing existing and\r\n prospective residents (each, a “Resident”,\r\n and collectively, the “Residents”) with the\r\n various products and services available through the{' '}\r\n www.SmarterChoice.com website\r\n and/or SmarterChoice mobile app (the “Services\r\n ”).\r\n
\r\n\r\n WHEREAS, Client is the owner and/or manager of one or more multi-family\r\n properties (each a “Property”, and\r\n collectively, the “Properties”) in which\r\n Residents are in need of such Services.\r\n
\r\n\r\n WHEREAS, SmarterChoice and Client desire to establish, pursuant to the\r\n terms of this Agreement, an arrangement whereby SmarterChoice will share\r\n a portion of the commission revenue received from proprietors of certain\r\n Services (each, a “Provider”, and\r\n collectively, the “Providers”) with Client.\r\n
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\r\n Revenue Sharing Compensation. In consideration for Client\r\n providing updated Resident data to SmarterChoice and making the\r\n SmarterChoice platforms available to Residents at the Properties, and\r\n assuming Client’s continued eligibility as set forth in this\r\n Agreement, SmarterChoice hereby agrees to provide compensation to Client\r\n as follows (the “Revenue Sharing Compensation\r\n ”): A flat fee of $40.00 per paid commissionable event,\r\n ‘commissionable event’ being defined as the purchase of an\r\n electricity plan by an Eligible Resident (as defined below) that results\r\n in the Provider of that plan paying SmarterChoice a commission for\r\n brokering the sale (the “Commission”).\r\n Client hereby recognizes that Commission receipts from Providers\r\n constitute the sole source of funds for SmarterChoice’s payment of\r\n Revenue Sharing Compensation, and accordingly Client understands,\r\n acknowledges and agrees that SmarterChoice’s receipt of\r\n corresponding Commission receipts from Providers constitutes a condition\r\n precedent to SmarterChoice’s obligation to pay any related Revenue\r\n Sharing Compensation to Client, and unless and until SmarterChoice\r\n realizes and receives such Commission receipts, SmarterChoice shall have\r\n no obligation to pay to Client any Revenue Sharing Compensation under\r\n this Agreement.\r\n
\r\n\r\n Claw Back and Other Adjustments. In the event Provider reduces\r\n future revenue receipts to offset, claw back or otherwise recoup\r\n previously paid Commission receipts, SmarterChoice retains the right to\r\n reduce future Client Revenue Sharing Compensation under this Agreement\r\n to recoup any portion of those Provider offsets, claw backs or\r\n recoupments that SmarterChoice had previously disbursed to Client.\r\n Additionally, SmarterChoice retains the right to adjust future Client\r\n Revenue Sharing Compensation to offset any and all other funds that may\r\n have been erroneously disbursed by SmarterChoice to Client.\r\n
\r\n\r\n Software Provider Charges. If Clients property management\r\n software provider charges SmarterChoice a per unit, per property, per\r\n sale or similar ‘add-on’ fee, beyond the basic software\r\n license fee, to access Clients Property or Resident data, that fee will\r\n be passed on to Client and deducted from Clients Revenue Sharing\r\n Compensation.\r\n
\r\n\r\n Timing and Manner of Payment\r\n . Provided all eligibility requirements are met, the\r\n Revenue Sharing Compensation shall be provided on a quarterly basis as\r\n follows: A paper check, or ACH transfer, in the amount of the Revenue\r\n Sharing Compensation for the previous calendar quarter (the “\r\n Revenue Period”), together with reasonable\r\n web-based supporting documentation, shall be issued to Client on or\r\n about each April 15, July 15, October 15 and January 15 that this\r\n Agreement remains in effect.\r\n
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\r\n Eligible Property. Before SmarterChoice can begin providing\r\n Services, and before Client is eligible to participate in the Revenue\r\n Sharing Compensation component of this Agreement, Client must begin\r\n providing resident data to SmarterChoice in a manner acceptable to\r\n SmarterChoice.\r\n
\r\n\r\n Eligible Residents. Client, as a Property owner or manager, shall\r\n be entitled to Revenue Sharing Compensation solely with respect to each\r\n Resident who enters into a rental agreement with Client (the “\r\n Eligible Resident”) and enrolls for Services\r\n which result in Commission receipts being received by SmarterChoice,\r\n during such time as Client is owner or manager of such Property. In no\r\n event and under no circumstances shall Revenue Sharing Compensation be\r\n owed or paid by SmarterChoice to Client with respect to any Resident who\r\n has enrolled for or used or received Services prior to or after\r\n Client’s ownership or management of the corresponding Property,\r\n regardless of when such Resident became a Resident at the Property.\r\n
\r\n\r\n Eligible Receipts. Revenue Sharing Compensation shall be based\r\n solely on Commission receipts paid to SmarterChoice by Providers for\r\n Eligible Residents during such time as Client is and remains owner or\r\n manager of the Property at which Eligible Resident resides, minus\r\n offsets, claw backs and adjustments made by Provider or otherwise due\r\n SmarterChoice.\r\n
\r\n\r\n Client as Property Owner Versus Client as Property Manager. Only\r\n one owner or manager of each Property is eligible to participate in this\r\n Agreement with respect to such Property and to receive the Revenue\r\n Sharing Compensation as defined above. Accordingly, for each Property to\r\n which this Agreement applies, it is understood, acknowledged and agreed\r\n that the following conditions precedent and subsequent shall apply to\r\n this Agreement and any compensation to Client hereunder: (A) Revenue\r\n Sharing Compensation shall be owed by SmarterChoice only once as to each\r\n Eligible Resident of each Property; (B) In the event this Agreement or\r\n the substantive equivalent has been entered into with SmarterChoice and\r\n executed by both the owner of such Property and the manager of such\r\n Property as of the last day of any Revenue Period, only the owner of\r\n such Property shall be entitled to receipt of any such Revenue Sharing\r\n Compensation for such Revenue Period, and the compensation rights of the\r\n Property owner shall govern and take precedence over the compensation\r\n rights of the Property manager, subject to the remaining provisions of\r\n this Agreement, and provided, further, that a Property owner shall not\r\n be entitled to any Revenue Sharing Compensation for a Revenue Period\r\n where such Property owner does not continue to be the owner of record of\r\n the Property on the last day of such Revenue Period; (C) in no event\r\n shall any Property manager receive any Revenue Sharing Compensation for\r\n a Property for any Revenue Period if such Property manager is not\r\n actively providing management services at such Property as of the last\r\n day of the corresponding Revenue Period; (D) each Property manager shall\r\n be responsible for providing notice to the corresponding Property owner\r\n of this Agreement, or any substantive equivalent hereof, with\r\n SmarterChoice as required in relation to any contractual, legal or\r\n ethical duties owed by such Property manager to the corresponding\r\n Property owner. In the event of any dispute between any Property owner\r\n and Property manager in relation to the Services or Revenue Sharing\r\n Compensation under this Agreement, such dispute shall remain exclusively\r\n between such Property owner and Property manager.\r\n
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\r\n Term of Agreement. This Agreement is on a month-to-month\r\n term and can be terminated by either party at any time, for any or no\r\n reason, with or without notice.\r\n
\r\n\r\n Non-Exclusivity. Client acknowledges and agrees that this\r\n Agreement is non-exclusive and that SmarterChoice may provide and\r\n perform similar services for or on behalf of other parties engaged in\r\n the same or other businesses and at other properties, including without\r\n limitation, ones that compete with Client or Client Properties, and\r\n residents thereat.\r\n
\r\n\r\n Publicity. Either Party may use the other Party’s name,\r\n logo or likeness in acknowledging, announcing or otherwise publicizing\r\n the existence of this Agreement via their respective websites, social\r\n media accounts, or through other advertising, promotional or marketing\r\n efforts.\r\n
\r\n\r\n Independent Contractor. No relationship of employment is created\r\n by this Agreement, it being understood that SmarterChoice will at all\r\n times be acting and performing solely as an independent contractor.\r\n Neither Party to this Agreement is authorized to be the agent or legal\r\n representative of the other for any purpose whatsoever. No Party shall\r\n have the authority or power to make any commitments of any\r\n responsibility expressed or implied in the name of the other or to\r\n assume or create any obligation or shall be liable for any acts or\r\n omissions of the other. All employment, insurance and tax matters and\r\n filings shall be handled accordingly.\r\n
\r\n\r\n Exclusive Control. Each Provider has exclusive control, at their\r\n sole discretion, as to what qualifies as a commissionable event, the\r\n amount of commission owed for each such event, and when and how\r\n SmarterChoice receives payment of such commission. Providers may at any\r\n time, and at their sole discretion, modify the programs, policies, and\r\n payouts to which SmarterChoice relies on for generating Commission\r\n receipts. Client understands, acknowledges, and agrees that changes to\r\n such programs, policies and payouts are beyond SmarterChoice’s\r\n ability to control and that SmarterChoice is not responsible for any\r\n impact such changes may have on Client.\r\n
\r\n\r\n Governing Law. All claims and disputes related to this Agreement,\r\n its Exhibits, the transactions contemplated (t)hereunder and the subject\r\n matter (t)hereof, including without limitation the Compensation and\r\n Eligibility Requirements, shall be settled in accordance with the\r\n Dispute Resolution provisions set forth in this Agreement.\r\n Interpretation and performance of this Agreement shall be in accordance\r\n with and pursuant to the substantive laws of the State of Arizona,\r\n without regard to principles of conflicts of laws.\r\n
\r\n\r\n Dispute Resolution. Any dispute, controversy or claim that may\r\n arise under or in relation to Agreement, its Exhibits, the transactions\r\n contemplated (t)hereunder and the subject matter (t)hereof, including\r\n without limitation the Compensation and Eligibility Requirements, or the\r\n enforcement or interpretation of this Agreement or its Exhibits (each, a\r\n “Dispute”, and collectively, “\r\n Disputes”), shall be submitted to a mediator\r\n located in the Phoenix, Arizona metropolitan area, prior to any\r\n arbitration or other action. The mediator’s fees and expenses\r\n shall be shared equally by the Parties who agree to exercise their best\r\n efforts in good faith to resolve all disputes in mediation. Mediation\r\n begins on the date one Party sends written notice to the other\r\n requesting mediation and presenting in the notice the matter to be\r\n mediated. The mediation shall conclude when all parties thereto sign an\r\n agreement that resolves the subject of the mediation. If no agreement is\r\n reached within sixty (60) calendar days after the date of the original\r\n written notice, the mediation is considered unsuccessful. In the event\r\n any Dispute cannot be settled by the Parties informally or through\r\n mediation, the Dispute shall be submitted to binding arbitration before\r\n a mutually agreeable arbitrator in the Phoenix, Arizona metropolitan\r\n area. In the event the Parties cannot agree on an arbitrator, the\r\n presiding judge of the Superior Court of Maricopa County, Arizona, shall\r\n decide who the arbitrator shall be. The arbitrator shall have the\r\n discretion to enter any award permissible under Applicable Law, and such\r\n award shall be enforceable exclusively in a state or federal court of\r\n competent jurisdiction in Maricopa County, Arizona. Client hereby\r\n consents to the personal jurisdiction of such courts located in Maricopa\r\n County, Arizona, for such purpose. CLIENT ALSO HEREBY WAIVES RIGHT TO A\r\n JURY TRIAL. Should any arbitration or other legal proceeding concerning\r\n any provision of this Agreement or the rights and duties of any person\r\n or entity in relation hereto be commenced among the Parties, or should\r\n any Party institute any proceeding in a bankruptcy or similar court\r\n which has jurisdiction over any Party or any or all of such other\r\n Party's property, the Party or Parties prevailing in such\r\n arbitration or proceeding shall be entitled, in addition to such other\r\n relief as may be granted, to a reasonable sum for their attorneys’\r\n fees and court costs in such arbitration or proceeding which fees and\r\n costs shall be determined by the arbitrator or court, as the case may\r\n be, in such proceeding or in a separate action brought for that purpose.\r\n
\r\n\r\n Limitation of Liability. Except where prohibited by law, in no\r\n event will SmarterChoice be liable to Client for any indirect,\r\n consequential, exemplary, incidental, or punitive damages, including\r\n lost profits, even if SmarterChoice has been advised of the possibility\r\n of such damages, except where SmarterChoice’s acts and omissions\r\n have constituted reckless conduct, willful misconduct or intentional\r\n wrongdoing.\r\n
\r\n\r\n Indemnity. Client shall indemnify and hold SmarterChoice, its\r\n officers, directors, shareholders, predecessors, successors in interest,\r\n employees, agents, subsidiaries and affiliates, harmless from any\r\n demands, loss, liability, claims or expenses (including attorneys’\r\n fees), made against SmarterChoice by any third party due to or arising\r\n out of or in connection with Client’s participation in this\r\n Agreement.\r\n
\r\n\r\n Assignment. Either Party may freely assign its rights,\r\n obligations or claims under or with respect to this Agreement, at any\r\n time, in whole or part, with or without the other Party’s consent\r\n
\r\n\r\n Invalid Provisions / Severability. If any provision of this\r\n Agreement is held to be illegal, invalid or unenforceable under present\r\n or future laws, such provision shall be fully severable; this Agreement\r\n shall be construed and enforced as if such illegal, invalid or\r\n unenforceable provision had never comprised a part (t)hereof; and the\r\n remaining provisions of this Agreement shall remain in full force and\r\n effect and shall not be affected by the illegal, invalid or\r\n unenforceable provision or its severance from this Agreement.\r\n Furthermore, in lieu of such illegal, invalid or unenforceable\r\n provision, there shall be added automatically as part hereof a provision\r\n as similar in terms, but in any event no more restrictive than, such\r\n illegal, invalid or unenforceable provision as may be possible and be\r\n legal, valid and enforceable.\r\n
\r\n\r\n Modification. Except as otherwise expressly provided herein, this\r\n Agreement and its Exhibits may not be changed, modified, or amended\r\n without the written consent of an actually authorized representative of\r\n both SmarterChoice and Client.\r\n
\r\n\r\n Interpretation; Construction. The headings set forth in this\r\n Agreement are for convenience only and shall not be used in interpreting\r\n this Agreement. They are not to be construed as a part of this\r\n Agreement, and they in no way define, limit or amplify the provisions of\r\n this Agreement. This Agreement has been drafted by legal counsel\r\n representing SmarterChoice, but Client has had an opportunity to review\r\n this Agreement and have it reviewed by legal counsel, if desired, and,\r\n therefore, the normal rule of construction to the effect that any\r\n ambiguities are to be resolved against the drafting party shall not be\r\n employed in the interpretation of this Agreement.\r\n
\r\n\r\n Force Majeure. SmarterChoice shall not under any circumstances be\r\n liable for any damages or penalty for any delay in performance of, or\r\n failure to perform, any obligation hereunder or for failure to give\r\n Client prior notice thereof, when such delay or failure is due to the\r\n elements, acts of God, government regulation, political instability,\r\n acts of war, acts of terrorism, power outages, changes in law, strikes,\r\n disease, viruses, bacteria, epidemics, pandemics or health threats as\r\n declared by a government or health care agency, insurrections, attacks\r\n or politically destabilizing events or circumstances as declared by a\r\n government agency or authority, or other causes beyond\r\n SmarterChoice’s control. \r\n \r\n
\r\n\r\n Notices. Any notice to be given under this Agreement shall be in\r\n writing and shall be deemed to have been given when submitted by\r\n verifiable electronic mail, sent to the email address as designated\r\n under each Parties signature below. The addresses and/or contact points\r\n may be changed from time to time by either Party by serving notice to\r\n the other Party.\r\n
\r\n\r\n Survival. The respective rights and obligations of the Parties\r\n under this Agreement, shall survive the expiration or termination of\r\n this Agreement.\r\n
\r\n\r\n Entire Agreement. This Agreement represents the entire agreement\r\n between SmarterChoice and Client and supersedes any prior agreements\r\n executed by SmarterChoice and Client related to the subject matter of\r\n this Agreement. With respect thereto, there are no promises, terms,\r\n conditions, or obligations between SmarterChoice and Client other than\r\n those contained herein.\r\n
\r\n\r\n Counterparts. This Agreement, and any document incorporated\r\n herein and integrated herewith by reference may be executed in any\r\n number of counterparts which, when taken together, constitute one and\r\n the same instrument. Each Party acknowledges that an executed copy\r\n (including, without limitation, copies of any signatures) that is\r\n reproduced and transmitted to the other Party electronically, by\r\n facsimile, email attachment, or otherwise, is equivalent to an original\r\n document for all purposes.\r\n
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