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AUTHORIZED SERVICE PROVIDER AGREEMENT
FOR EATON CERTIFIED ELECTRICAL CONTRACTORS
This Authorized Service Provider Agreement (“Agreement”) is made as of the date of the last required signature, as set forth hereinbelow (“Effective Date”), by and between Eaton Corporation, an Ohio corporation, on behalf of its Commercial and Residential Distribution Solutions business, (“EATON”), and the contractor company identified on the Eaton Certified Contractor Network Application to which this Agreement is attached (hereinafter, “SERVICE PROVIDER”). EATON and SERVICE PROVIDER are referred to from time to time herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, EATON provides and/or manufactures residential, load centers, circuit breakers, panelboards and other residential devices.
WHEREAS, SERVICE PROVIDER desires to provide such installation, maintenance and repair field services on residential load centers, circuit breakers, surge protection devices, wiring devices and residential standby power systems and to use the EATON trademark to market such services to the applicable end-user customer.
NOW, THEREFORE, in consideration of the mutual promises, terms and conditions contained herein the Parties agree as follows:
1. Appointment of SERVICE PROVIDER. EATON hereby appoints SERVICE PROVIDER, subject to the terms and conditions contained herein, as a non-exclusive provider of installation, start up, calibration, maintenance, modification and repair field services for electrical residential load centers, circuit breakers, panelboards and other residential devices ("SERVICES"). Notwithstanding anything herein to the contrary, EATON reserves the right to provide SERVICES by any means, including without limitation, appointment of other authorized service providers.
2. Obligations of SERVICE PROVIDER. SERVICE PROVIDER shall, at all times, use its reasonable best efforts to promote, provide and sell EATON manufactured products including, but not limited to residential load centers, circuit breakers, wiring devices, panelboards and other residential devices. SERVICE PROVIDER further agrees to promote EATON’s good will, reputation and best interests in connection with the SERVICES and to follow the ethical guidelines set forth by EATON for its employees and suppliers.
2.1 EATON, at its discretion, will inform SERVICE PROVIDER of sponsored events or installation activities occurring with SERVICE PROVIDER’s area and SERVICE PROVIDER shall respond to such notifications from EATON within twenty-four (24) hours.
3. Service Parts. SERVICE PROVIDER agrees to use only EATON genuine service parts in the maintenance and repair of EATON distribution and control equipment.
4. Semiannual Review. SERVICE PROVIDER shall meet with EATON or an EATON representative at least twice each year to review SERVICE PROVIDERS performance with respect to the SERVICES and to discuss any changes, developments or other conditions affecting such performance. At least once each year during such semiannual reviews, SERVICE PROVIDER shall work with EATON to establish performance goals relative to SERVICE PROVIDER’s sales of SERVICES pursuant to this Agreement. Throughout the Agreement term, the Eaton Certified Contractor Network (ECCN), on behalf of EATON, may direct written and electronic correspondence to SERVICE PROVIDER regarding the SERVICES, this Agreement or the ECCN program more generally, including SERVICE PROVIDER’S eligibility for excusive ECCN promotions.
5. Periodic Reporting Requirements. From time to time during the duration of the Agreement, but no more frequently then quarterly, EATON may request SERVICE PROVIDER and SERVICE PROVIDER shall complete a survey or similar report for the purposes of gathering marketing and related information concerning the SERVICES and associated products or to collect other feedback concerning SERVICE PROVIDER’s performance or user experience relative to the Agreement.
5. Advertising. EATON shall furnish reasonable quantities of sales literature, brochures, samples and technical data to SERVICE PROVIDER without charge. Customized literature templates will be provided to SERVICE PROVIDER for a nominal fee.
6. Training. EATON shall provide an instructor led introductory certification course for SERVICE PROVIDER and SERVICE PROVIDER personnel that will be held at a mutually agreeable location or, if necessary, via web-based application. Upon completion by SERVICE PROVIDER personnel of the applicable training, SERVICE PROVIDER and SERVICE PROVIDER personnel who completed the training, shall be considered "Eaton Electrical Certified Contractors”. EATON ELECTRICAL CERTIFIED CONTRACTORS ARE THE ONLY INDIVIDUALS AUTHORIZED BY EATON TO PROVIDE FACTORY CERTIFIED SERVICE ON EATON PRODUCTS.
7. Engineering Standards. SERVICE PROVIDER shall maintain a high level of capability for engineering and specification work required to promote and perform the sale of load centers, circuit breakers, and other residential devices. SERVICE PROVIDER shall maintain the product knowledge and familiarity necessary to provide SERVICES in a professional and competent manner and in accordance with the highest industry standards. SERVICE PROVIDER shall provide SERVICES in a good and workmanlike manner and shall maintain strict quality control in the provision of SERVICES. Such quality control measures are subject to EATON’s approval and EATON reserves the right, at its sole discretion, to monitor the implementation and adherence to such quality control measures during the term of this Agreement. Notwithstanding any training provided by EATON, SERVICE PROVIDER agrees to comply with all federal, state, and local law, regulations, and requirements when providing SERVICES.
8. Liability and Insurance. SERVICE PROVIDER assumes full responsibility for and shall indemnify and hold EATON harmless against all liability, loss and damages sustained by SERVICE PROVIDER, its employees, agents, sub-contractors, customers and all third persons, including loss of use of property belonging to any of the foregoing, caused by or arising from, in whole or in part, the acts or omissions of SERVICE PROVIDER, its employees or agents, in conjunction with SERVICES or any other activity of SERVICE PROVIDER pursuant to this Agreement. SERVICE PROVIDER will purchase and maintain, at its sole expense, liability insurance and property damage insurance as follows:
8.1 Comprehensive general liability insurance covering SERVICE PROVIDER’s (and SERVICE PROVIDER’S employees and agents’) acts, operations, and locations, including products-completed operations exposure and blanket contractual liability, with a minimum combined single limit of one million dollars ($1,000,000).
8.2 Such other coverage reasonably necessary, in accordance with best industry practice, to insure SERVICE PROVIDER against all relevant losses, liabilities and indemnitees that may arise in connection with the SERVICES or any other activity of SERVICE PROVIDER pursuant to this Agreement or as otherwise specified by EATON.
8.3 All policies of insurance required by this Article 8 shall include EATON as an additional insured and shall not be cancellable without thirty (30) days’ prior written notice to EATON.
9. Use of Eaton Marks. So long as this Agreement remains in effect, SERVICE PROVIDER may advertise itself (on signage, stationary and similar materials) as an “Eaton Certified Electrical Contractor” or Authorized Eaton Electrical/Cutler-Hammer Services Provider. Except as authorized in the foregoing, SERVICE PROVIDER shall not use the name, trademarks, service marks, trade dress, symbols, logos, or domain names of EATON (hereinafter “Eaton Marks”), except in a form specifically approved by EATON and in a manner that unambiguously indicates that SERVICE PROVIDER is independently owned. SERVICE PROVIDER will not use, attempt to register, or register any trade names, trademarks, service marks, trade dress, symbol, logos, or domain names using the Eaton Marks, in whole or in part, or portions thereof without the express written permission of EATON which may be withheld at EATON’s sole discretion. All rights granted to SERVICE PROVIDER pursuant to this Agreement shall immediately terminate upon expiration or termination of this Agreement for any reason. SERVICE PROVIDER agrees to immediately cease and desist all use of the Eaton Marks upon termination or expiration of this Agreement, or upon written request of EATON, and to assign to EATON any trade name, trademark, service mark, trade dress, symbol, logo, or domain name using the Eaton Marks, in whole or in part, or any portion thereof. SERVICE PROVIDER agrees that all use of the Eaton Marks inures solely to the benefit of EATON, and Distributor will not challenge the validity of, diminish in value, tarnish, dilute, or damage in any manner the Eaton Marks.
10. Confidentiality. SERVICE PROVIDER acknowledges that it may, in the course of performance of this Agreement, be exposed to or acquire information which is proprietary to or confidential to EATON, including but not limited to: data, technical information and drawings, demonstration products and training manuals relating to the SERVICES, products or equipment; inventions; discoveries; trade secrets; secret processes; financial data; computer software; know-how; methods; marketing information; and any other data, technical or other information in any form relating to the business affairs of EATON, including the provisions of this Agreement (“Confidential Information”). SERVICE PROVIDER agrees to hold Confidential Information in strict confidence and not to use Confidential Information for its own benefit or disclose it to third parties without the written consent of EATON. Confidential Information shall not include information: (a) which is or becomes publicly available; (b) is disclosed to SERVICE PROVIDER by a third party who is not in breach of an obligation of confidentiality; (c) is independently developed by SERVICE PROVIDER without reference to or use of any Confidential Information; or (d) is required to be disclosed pursuant to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange, provided however that SERVICE PROVIDER shall advise EATON of such required disclosure promptly upon learning thereof in order to afford EATON a reasonable opportunity to contest, limit and/or assist SERVICE PROVIDER in crafting such disclosure. Upon the termination of this Agreement and written request from EATON, SERVICE PROVIDER shall return to EATON all Confidential Information which EATON has supplied SERVICE PROVIDER or SERVICE PROVIDER has otherwise acquired pursuant to this Agreement.
11. Term. The term of this Agreement shall commence on the date of this Agreement and remain in effect until terminated in accordance with this Article.
11.1 This Agreement may be terminated by EATON:
11.1.1 for breach of any of the terms and conditions hereof provided that notice has been given to SERVICE PROVIDER of the breach and SERVICE PROVIDER has been provided a reasonable opportunity to cure the breach, such cure period not to exceed thirty (30) days; or
11.1.2 for failure by SERVICE PROVIDER to pay EATON any amounts payable when due;
11.1.3 failure of SERVICE PROVIDER to meet established sales goals over any one (1) year period; or
11.1.4 if SERVICE PROVIDER changes their legal name or entity, ceases to function as a going concern, makes an assignment for the benefit of a creditor or a petition in bankruptcy is filed by or against it.
11.2 SERVICE PROVIDER may terminate this Agreement, subject to the terms and conditions contained elsewhere herein, upon thirty (30) days’ written notice to EATON.
12. Notices. Any notice or communication required or permitted hereunder shall be in writing and shall be sent by registered or certified mail, return receipt requested, or by commercial overnight courier service offering verification of delivery, and addressed to the Parties at their respective addresses listed herein, or to such changed address as any Party entitled to such notice shall have provided in writing to the other Party. Any such notice or communication so mailed shall be deemed delivered and effective three (3) days after mailing thereof or if delivered by commercial service shall be deemed delivered and effective the day after sending. All notices or communications provided or permitted herein shall be in writing and considered delivered when sent to the following addresses of the Parties:
FOR EATON: FOR SERVICE PROVIDER:
Eaton Corporation At the address set forth on the Eaton
Attn: Erik Drost Certified Contractor Network Application
1000 Cherrington Parkway to which this Agreement is attached
Moon Township, PA 15108
WITH A COPY TO:
Attn: Law Department
1000 Eaton Boulevard
Beachwood, OH 44122
13. Independence of Parties. EATON and SERVICE PROVICER will at all times be independent contractors. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other Party. This Agreement will not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligation or liability upon either Party. SERVICE PROVIDER specifically agrees that it shall have no power or authority to represent EATON in any manner; that it will solicit orders for the SERVICES as an independent contractor in accordance with the terms of this Agreement; and that SERVICE PROVIDER will not at any time represent orally or in writing to any person or entity that it has any right, power or authority not expressly granted hereunder.
14. Assignment. SERVICE PROVIDER shall not assign this Agreement or any of its rights and interests herein without the prior written consent of EATON, which EATON may withhold in its sole and absolute discretion.
15. Entire Agreement. This Agreement, including the Exhibits attached hereto, constitute the entire agreement between EATON and SERVICE PROVIDER relative to relationship of the Parties and the SERVICES, superseding all prior agreements and understandings concerning the subject matter hereof, notwithstanding any oral representations or statements to the contrary. No amendment, modification or change of this Agreement will be valid unless in writing and signed by an authorized representative of EATON and SERVICE PROVIDER. If any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement and the application of the challenged provision to persons or circumstances other than those as to which it is invalid or unenforceable will not be affected, and each of those provisions will be valid and enforceable to the full extent permitted by law.
16. Waiver. The failure of EATON to enforce strict performance by SERVICE PROVIDER of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver, to any extent, of EATON’s right to assert or rely upon any provision of this Agreement in that or any other instance. A delay or omission by EATON to exercise any right or power under this Agreement will not be construed to be a waiver of that right or power. Waiving one breach will not be construed to waive any succeeding breach.
17. Survival. After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after termination or expiration will survive and continue in full force and effect, including but not limited to, provisions protecting Confidential Information or setting forth limitations of liability, notices, governing law and jurisdiction.
18. Disclaimer. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE, IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, REGARDLESS OF WHETHER SUCH POTENTIAL DAMAGES ARE FORESEEABLE OR IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Ohio. EATON and SERVICE PROVIDER hereby agree that all disputes arising out of this Agreement shall be submitted solely to the jurisdiction of the state and federal courts located in Cuyahoga County, Ohio.