This PROCARD MEMBER AGREEMENT (this "Agreement"), together with all of its amendments, modifications, changes, updates and additional terms and conditions, is a legal and binding agreement between you and Noritz America Corporation ("Noritz"), a California corporation (individually, the "Party" and collectively, the "Parties"), setting forth the terms and conditions for your use and participation of this Site and the PROCard Services as a PROCard Member with reference to the following facts (A) The Parties are parties to that certain PROCard Master Agreement that is posted on http://procard.noritz.com (the "PROCard Master Agreement"); (B) Noritz is a distributor of the Products (as defined in the PROCard Master Agreement) that require the PROCard Services (as defined in the PROCard Master Agreement) for the benefits of the Customers (as defined in the PROCard Master Agreement); (c) You are a plumbing-heating-cooling professional with valid business and contractor licenses, when and where applicable, to legally and professionally install, maintain, repair and service the Products; (d) Noritz desires to retain you, and you desire to be retained by Noritz, to perform the PROCard Services (as defined below) as an independent contractor, pursuant to the terms and conditions set forth in this Agreement and/or the PROCard Master Agreement. NOW, THEREFORE, in consideration of the above premises and of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties hereby agree as follows:
1. Definitions. All definitions set forth in the PROCard Master Agreement are hereby incorporated into this Agreement as though fully set forth herein. All capitalized terms used in this agreement but not otherwise defined in the PROCard Master Agreement have the following meanings (i) "Basic PROCard Member" shall mean a PROCard Member who satisfies the corresponding requirements set forth in Section 2(i); (ii) "Factory Trained Service Representative" shall be a PROCard Member who satisfactory completes that certain certification program to be provided by Noritz; (iii) "Find an Installer Function" shall mean a certain web based search function posted on www.noritz.com/homeowners/services/find_an_installer/ that enables the homeowners to locate the PROCard Members in their vicinities; (iv) "Gold PROCard Member" shall mean a PROCard Member who satisfies the corresponding requirements set forth in Section 2(iii); (v) "Noritz University" shall mean those certain on-site trainings to be provided by Noritz's certified trainers for the benefits of the PROCard Members. Noritz University will be made available at least monthly and comprised of (i) three (3) levels of classes for each of residential and commercial tankless Products; and (ii) two (2) levels of classes for boiler Products; (vi) "Online Training Program" shall be that certain web based training program for PROCard Members posted on http://procard.noritz.com/account/quiz/; (vii) "Platinum PROCard Member" shall mean a PROCard Member who satisfies the corresponding requirements set forth in Section 2(iv); (vii) "PROCard Member Promotions" shall mean certain promotions that you may wish to inform the Customers of in connection with the Find an Installer Function (i.e., discount, promotional services); (viii) "Silver PROCard Member" shall mean a PROCard Member who satisfies the corresponding requirements set forth in Section 2(ii).
2. PROCard Membership Tiers. You must provide contact information including but not limited to an e-mail address and valid business and contractors licenses properly issued by applicable governmental agencies in order to enroll in the PROCard Program. (i) Basic PROCard Membership. You are qualified as a Basic PROCard Member when you (a) enroll in the PROCard Program, and (b) complete the Online Training Program; (ii) Silver PROCard Membership. You are qualified as a Silver PROCard Member when you (a) enroll in the PROCard Program, and (b) complete at least one (1) training class at Noritz University while having at least 1 installation registered under your PROCard membership and maintaining at least 1 installation registered in a 12 month calendar year from the date of the first annual warranty registration; (iii) Gold PROCard Membership. You are qualified as a Gold PROCard Member when you (a) enroll in the PROCard Program, and (b) complete at least three (3) training classes at Noritz University while having at least 10 installations registered under your PROCard membership and maintaining at least 5 installations registered in a 12 month calendar year from the date of the first annual warranty registration; (vi) Platinum PROCard Membership. You are qualified as a Platinum PROCard Member when you (a) enroll in the PROCard Program, (b) complete at least three (3) unique classes at Noritz University, one class from each level: Beginner (R1, C1), Intermediate (R2, C2), and Advance (R3, C3) while having at least 25 installations registered under your PROCard membership and maintaining at least 10 installations in a 12 month calendar year from the date of the first annual warranty registration; (c) complete the Service Representative Training; and (d) obtain a certification as a Factory Trained Service Representative.
3. Engagement and Grant of License. After and only after being qualified as a PROCard Member, Noritz shall appoint you, and you shall accept such appointment from Noritz, as a PROCard Member to perform the PROCard Services as an independent contractor, pursuant to the terms and conditions set forth in this Agreement. Noritz hereby grants you a limited, non-exclusive, non-transferable and revocable sublicense under the Intellectual Property Rights to the corresponding Products in accordance with the terms and conditions set forth in this Agreement and/or the PROCard Master Agreement for the sole purpose of performing the PROCard Services. You shall perform all PROCard Services required hereunder as an independent contractor and not as an employee, joint venture or partner of Noritz for any purpose whatsoever. You shall have no actual authority to represent and/or bind Noritz, or any of its Affiliates, without Noritz's prior written approval. You shall use Noritz's apparent authority, if any, for the sole purpose of performing the PROCard Services.
4. PROCard Services. You shall perform the following services (the "PROCard Services") for, or on behalf of, Noritz for the benefits of the Customers (i) Install and maintain the Products; (ii) Establish and maintain a PROCard Account on the PROCard Program Website posted on http://procard.noritz.com; (iii) Keep full and complete records of all transactions relating to the Products on your PROCard Account; (vi) Complete and submit to Noritz a corresponding warranty registration card within four (4) weeks after installing each Product; (v)Periodically update and keep current all information posted on your PROCard Account; (vi) Contact and respond to a potential Customer within twenty-four (24) hours from the receipt of such potential Customer's inquiry for installing the Products; (vii) Timely provide to Noritz any material feedback received by you regarding the Products; and (viii) Render any other services in connection with the Products specifically requested by Noritz and/or any of the customers. You will determine the method, details and means of performing the PROCard Services. The PROCard Services shall be performed in a professional, workmanlike manner acceptable to Noritz and consistent with then-prevailing industry standards. You may, at your own expense and responsibility, use any employees or subcontractors, as you deem appropriate, to perform the PROCard Services. Unless specifically requested by you, Noritz shall not control, direct or supervise your employees and/or subcontractors in their performance of the PROCard Services. You shall also perform the necessary action of to contact and to follow up as well as maintaining professional communications of the "LEADS" generated on the Noritz.com dealer locator from the homeowners. If you fail to log in your PROCard account and take actions on the generated leads provided to you in a consistent time frame of 3 months, Noritz has the sole authority to deactivate your PROCard account and remove your listing off from the Noritz dealer locator. Noritz expects a high level of service and professionalism from members in the PROCard program.
5. PROCard Member Benefits. The PROCard Members will earn "PROCard Points," the currency of the PROCard Program, for each eligible installation of the Products. You can redeem your PROCard Points to receive, from time to time, corresponding rebates as set forth below: A PROCard Member may earn PROCard Points after professionally installing the Noritz Products by either: (a) completing and returning to Noritz a corresponding warranty card included with the Products along with the member PROCard info; or (ii) reporting such installation through your PROCard account within four (4) weeks from the date of the corresponding installation. As soon as you accumulate more than four hundred (400) PROCard Points at anytime, Noritz will issue you a rebate check in an amount to be determined by dividing your accumulated PROCard Points by four (4). After issuance of such rebate check, your PROCard balance will be reduced by the corresponding PROCard Points. Notwithstanding anything to the contrary set forth herein, Noritz may keep track of the accumulated PROCard Points of the PROCard Members after the corresponding redemptions. Although no PROCard Point shall be redeemed more than once, PROCard points will remain valid only for a period of one (1) year following its issuance and will expire on the one (1) year anniversary date of its issuance. To assist any potential Customers to locate a PROCard Member for the PROCard Services, Noritz will make available the Find an Installer Function. In connection with the Find an Installer Function, Noritz will list all PROCard Members who are located within a five (5) miles radius of any potential customer regardless of its membership tiers or PROCard Points. In connection with the Find an Installer Function, Noritz will list only Silver, Gold and Platinum PROCard Members who: (i) satisfy the said requirement above on each respected level and the necessary amount of installations to maintain status within the preceding one (1) year period; and (ii) are located within a ten (10) miles radius of any potential customer. In connection with the Find an Installer Function, Noritz will list only Gold and Platinum PROCard Members who: satisfy the said requirement above on each respected level and the necessary amount of installations to maintain status within the preceding one (1) year period and (ii) are located within a twenty (20) miles radius of any potential customer. In connection with the Find an Installer Function, Noritz will list only Platinum PROCard Members who: (i) have at least 25 installation registered since the inception of membership and satisfy the said requirement above on the necessary amount of installations to maintain status within the preceding one (1) year period. Points within the preceding one (1) year period; and (ii) are located within a forty (40) miles radius of any potential customer. In connection with the Find an Installer Function, Noritz will provide a "Request a Quote Button" for all PROCard Members, regardless of their membership tiers or PROCard Points. In connection with the Find an Installer Function, Noritz will only upload company logos for members with Platinum PROCard level membership. In connection with the Find an Installer Function, Noritz will designate the corresponding PROCard Membership tier regardless of their accumulated PROCard Points. In connection with the Find an Installer Function, Noritz will list: (a) up to one (1) PROCard Member Promotion for the Silver PROCard Members; (b) up to two (2) PROCard Member Promotions for the Gold PROCard Members; and (c) up to three (3) PROCard Member Promotions for the Platinum PROCard Members. Noritz will not upload any PROCard Member Promotion for the Basic PROCard Members. PROCard members has the opportunity to increase service coverage areas, here known as BRANCH, however, each additional BRANCH added under the existing PROCard member will need to have the approval of Noritz PROCard administrator(s). If Noritz Administrators deemed the new location to be invalid, untrue, and/or nonexistence, Noritz has the sole authority to remove and/or modify the additional locations without your discretion. Find an Installer Function on Noritz.com website features a performance rating system by the homeowners (end users). Homeowners have the ability to rate your company on a general basis along with the option to leave a written comment one (1) time about the service you have provided. You are allowed one (1) time to comment on the review by your customer(s). Please do not use public comments to launch personal attacks, advertise, or offer an incentive to change a review. By no mean, you are not allow to write a fake or defamatory review, trading reviews with other PROCard members, or compensating someone or being compensated to write or remove a review. By no means, any threatening, stalking, harming, or harassing others, or promoting bigotry or discriminating from your company on Noritz's rating system. All comments and review ratings of your company by the end users are first reviewed by Noritz PROCard administrators. Any comments deemed inappropriate will be flagged and removed without the consent of the end user. You may remove the rating/comment function under your PROCard account, however, the position of your account on the Find an Installer Function on Noritz.com will be affected.
6. Confidential Information. You acknowledge that the Confidential Information constitutes valuable properties and trade secrets of Noritz, that the Confidential Information embodies substantial creative efforts that are secret, confidential, and not generally known to the public and that secure to Noritz a competitive and proprietary advantage, that disclosure of the Confidential Information by you shall cause Noritz irreparable harm, and that monetary damages would be insufficient to compensate Noritz adequately for the harm done to it. You further acknowledge that the Confidential Information shall remain Noritz's sole property at all times. You shall keep all Confidential Information in the strictest con-fidence and shall not disclose such confidential Information to any third party without prior written permission of Noritz. Your aforementioned obligation shall apply to your employees, agents and subcontractors. On expiration or termination of this Agreement, you at your own expense, shall promptly return all Confidential Information in your possession to Noritz; or alternatively, at specific written request by Noritz, destroy any Confidential Information.
7. Intellectual Property Rights. All ideas, techniques, inventions, systems, formulas, discoveries, technical information, programs, prototypes and similar developments ("Developments") developed, created, discovered, made, written or obtained you in the course of or as a direct or indirect result of performance of the PROCard Services, and Intellectual Property Rights thereof, shall be and remain the property of Noritz. You agree to execute or cause to be executed such assignments and applications, registrations and other documents and to take such other actions as may be requested by Noritz to enable it to protect its rights to any such Developments. At Noritz's request, you will execute, verify, acknowledge and deliver to Noritz such assignments or other instruments as Noritz may from time to time deem reasonably necessary or desirable to evidence, establish, maintain, protect, enforce or defend its right and title in and to the Developments. You hereby irrevocably appoint Noritz as your attorney-in-fact coupled with all interests with the authority to execute, verify, acknowledge and deliver any such instruments that you shall fail or refuse to execute, verify, acknowledge or deliver, after being furnished a reasonable opportunity to do so. All rights granted or agreed to be granted hereunder shall be irrevocably vested in Noritz and shall not be subject to rescission by you for any cause whatsoever. No rights in the Work shall revert to you under any circumstances. The termination or expiration of this agreement shall not affect Noritz's ownership of the Developments.
8. Representations, Warranties and Covenants. You hereby represent, warrant and covenant to Noritz as follows: (i) You have the full right, power and authority to enter into and perform your obligations, including but not limited to the PROCard Services, and to grant the rights to be granted hereunder; (ii) You are not subject to any obligation or disability which will or might prevent you from fully keeping and performing all of the covenants and conditions to be kept or performed by you here under, including but not limited to the PROCard Services; (iii) You have not made and will not make any grant, assignment, commitment or do or permit any act which will or might interfere with or impair Noritz's full and complete enjoyment of the PROCard Services or the full and complete enjoyment and exercise of the rights and privileges granted herein; (vi) There is no matter, litigation, tax claim, proceeding or dispute pending or threatened against or affecting you or your property, the adverse determination of which might materially and adversely affect your financial condition or operations or impair your ability to perform your obligations hereunder, including but not limited to performance of the PROCard Services; (v) The PROCard Services or their outputs will not infringe the intellectual property rights of a third party anywhere in the world; (vi) In performing the PROCard Services, you will not use any confidential or proprietary information of a third party or infringe the intellectual property rights of a third party, nor will you disclose to Noritz, nor bring onto Noritz's premises, nor induce Noritz to use any confidential information or trade secret that belongs to anyone other than Noritz or you; (vii) You will adhere to and comply with all applicable laws, statutes, rules, regulations and requirements of all governmental agencies and regulatory bodies; (viii) You will promptly apply for and provide all necessary consents, licenses and permits that may be required by any governmental agency or authority of competent jurisdiction in connection with this Agreement and the PROCard Services to be performed hereunder; (ix) You will not cause there to be, inadvertently or otherwise, any claims, liens or other encumbrances or rights of any nature in and to the Products and any part thereof that will in any way interfere with or impair any of the rights granted to Noritz and/or Customers pursuant to the terms of this Agreement or otherwise; (x) You will comply with all of the terms contained in all third party agreements to which you are a party, and you shall not be in material breach of any provision thereof; (xi) You will perform the PROCard Services in a professional workmanlike manner consistent with the prevailing industry standards; (xii) Each of the representations, warranties and covenants contained in this Agreement shall survive the execution of this Agreement and the completion of the PROCard Services and shall remain in full force and effect beyond the term of this Agreement.
9. Indemnification. You shall defend, indemnify and hold harmless Noritz and each of its current, former and future parent corporations, subsidiaries, Affiliates, employee benefit plans, and related entities or corporations and their past and present officers, directors, shareholders, employees, creditors, fiduciaries, agents, employees, partners, attorneys, representatives, promoters, heirs, predecessors, successors and assigns from any and all claims, demands, costs, expenses, obligations, damages or causes of action of any nature, including reasonable attorneys' fees and costs, arising directly or indirectly from (i) your breach of any of your representations or warranties set forth in this Agreement; (ii) your breach of any other term or condition set forth in this Agreement; (iii) your violation of any federal, state or local law in connection with this Agreement; and/or (iv) damages to any third party caused by your negligent or intentional acts or omissions in connection with this Agreement.
10. Disclaimer. NORITZ DOES NOT PROMISE THAT THIS SITE OR ANY CONTENTS, SERVICES OR FEATURE OF THIS SITE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ANY DEFECTS WILL BE CORRECTED OR THAT YOUR USE OF THIS SITE WILL PROVIDE SPECIFIC RESULTS. THIS SITE AND ITS CONTENTS ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED ON THIS SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. NORITZ CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THIS SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. NORITZ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NORITZ FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THIS SITE AND/OR ANY PROCARD SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THIS SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST NORITZ FOR DISSATISFACTION WITH THIS SITE OR ANY CONTENT IS TO STOP USING THIS SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THIS AGREEMENT BETWEEN THE PARTIES. The above disclaimer applies to any damages, liabilities or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action. Except where prohibited by law, in no event will Noritz be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Noritz has been advised of the possibility of such damages. If, notwithstanding the other provisions of these Terms and Conditions, Noritz is found to be liable to you for any damage or loss that arises out of or is in any way connected with your use of this Site or any Content, Noritz's liability shall in no event exceed the greater of: (i) the total of any subscription or similar fees with respect to any PROCard Program on this Site paid in the six (6) months prior to the date of the initial claim made against Noritz; or (ii) One Hundred United States Dollars (US$100.00). Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.
11. Abandonment and Assignment. Notwithstanding anything to the contrary set forth in this Agreement, Noritz shall have no obligation to retain you for the PROCard Services or to exercise any or all of Noritz's rights under this Agreement, the PROCard Master Agreement or to continue any of the foregoing if commenced. You hereby release and discharge Noritz from all liabilities for any purported loss or damage you may suffer as a result of Noritz's election not to retain you for the PROCard Services in connection therewith or Noritz's termination, cancellation or rescission of the PROCard Program in connection therewith for any reason, with or without cause. If at any time Noritz elects not to require any of the PROCard Services from you, Noritz shall have no further obligations to you under this Agreement, except as specifically provided herein. Noritz may assign this Agreement, in whole or in part, at any time to any party as Noritz shall determine in its sole and absolute discretion. You shall not have the right to assign this Agreement or any rights hereunder, and any attempted assignment shall be void without the prior written consent of Noritz, which consent may be withheld in Noritz's sole and absolute discretion.
12. General Terms. This Agreement: (i) constitutes the final, complete, and exclusive understanding and agreement between the Parties with respect to the subject matter of this Agreement; and (ii) supersedes all prior and contemporaneous understandings or agreements between the Parties, whether written or oral, with respect to the subject matter of this Agreement. Neither Party has been induced to enter into this Agreement by, nor is any Party to this Agreement relying on, any representation or warranty outside those expressly set forth in this Agreement. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benet of and be binding upon the respective successors and assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. If one or more provisions of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. This Agreement may be supplemented, amended, or modified only by the mutual agreement of all Parties in writing and duly executed by all Parties. No waiver of any breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and executed by the Party waiving the breach, failure, right or remedy. No waiver of any breach, failure, right or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so species. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding Section or Sections of this Agreement. All words used in this Agreement will be construed to mean such gender or number as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law rules of such state. Any action or proceeding, however characterized, relating to or arising out of this Agreement or in connection with the subject matter hereof shall be maintained in the state or federal courts located in the County of Los Angeles in the State of California, and each of the Parties, each for itself, its successors and permitted assigns, hereby irrevocably submits to the jurisdiction of the courts of the State of California and the Courts of the United States of America sitting in the County of Los Angeles in the State of California for the purposes of any such action or proceeding and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. Any notices to be given hereunder by any of the Parties to the other Party shall be in writing and may be transmitted by personal delivery or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the Parties at their last known address, but each Party may change that address by written notice in accordance with this section. Notices delivered personally shall be deemed communicated as of the date of actual receipt; mailed notices shall be deemed communicated after five (5) days from the mailing date. Each of the Parties acknowledges, confirms, and agrees that it has read and understood the meaning and effect of each and every provision of this Agreement, was afforded the opportunity to consult in its native language with an advisor of its own choosing, and was afforded the opportunity to consult with legal counsel of its own choosing prior to the execution hereof. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.