CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
MeshTek Labs — BlueHopper Solutions LLC | Version 4.2
This Certified Installer Company (the “Dealer”) Agreement (the “Agreement”) is effective from Date of Acceptance.
BETWEEN: MeshTek Labs, a Delaware C-Corp and BlueHopper Solutions LLC (the “Company”), a company organized and existing under the laws of the Texas, with its head office located at 17330 Preston Rd, Suite 120A, Dallas, 75252, TX, USA.
AND: an organization (the “Dealer” / “Certified Installer”) per the details filled up in the form for this agreement and business purposes.
WHEREAS:
- Dealer holds the sales and installation rights for the products sold or distributed by BlueHopper Solutions and MeshTek Labs;
- Company’s products (”Products”) are trademark products, the sales and installation of which require specialized technical knowledge and involve after-sales consulting activities and services. The Products are those offered by the Company as listed at BlueHopper.com from time to time, together with any other product the Company authorizes in writing;
- The Dealer affirms that it has particular experience or is willing to gain particular experience in the distribution of Products and that it possesses adequate facilities for commercial demonstration capabilities as well as qualified staff for the sale and maintenance of Products;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Status of Dealer and Parties
Company hereby appoints the Dealer as a “Certified Installer” of the Products to this agreement (hereinafter referred to as the “Distributed Products”), and the Dealer accepts such appointment. The appointment of the Dealer is non-exclusive and does not imply the granting of a specific geographic area.
It is agreed that the Dealer shall act for and on behalf of itself as an independent co-contracting party. It shall not be empowered or authorized to bind Company in any manner whatsoever. None of the provisions of this agreement may be construed as creating an employee-employer relationship between the Dealer and Company.
2. Obligations of Company
Company shall:
- Furnish the Dealer with access to marketing brochures, user instruction, training, troubleshooting, and other material to assist the Dealer in promoting, selling, installing, and after-sales service of the Distributed Products. Additional material will be made available to the Dealer at a reasonable price.
- Furnish to the Dealer technical assistance and information concerning the Distributed Products and keep the Dealer informed of new information concerning the Distributed Products, as stipulated below.
- Provide the training access to at least one employee of the Dealer for the installation and maintenance of Products.
- Company will use its best efforts to deliver accepted orders as quickly as required. Nevertheless, Company shall not be responsible for any direct or indirect damage which may be caused to the Dealer or any third party by Company’s failure to fill any order or by any delay in delivery.
3. Duties, Obligations and Statements of the Dealer
- The Dealer will use its best efforts to promote, advertise and sell the Distributed Products.
- Train and maintain a sufficient qualified and competent staff to promote and sell the Distributed Products, carry out the after-sales service of such products and, in general, fulfill its obligations arising from this agreement. Company envisages organizing training sessions for Dealers. The Dealer shall at all times, but no more than once a year, have at least one employee who has been trained, whether by Company or by a Company-authorized distributor as verified by Company. The cost of such training, such as travel, accommodation, food, etc., will be borne by the Dealer.
- Display the Distributed Products in an appropriate and attractive environment.
- Furnish to customers, prior to and after the sale, technical assistance with regard to programming of and information on the software, and inform customers regarding the use of the Distributed Products.
- Demonstrate the Distributed Products to customers who so request.
- Promptly notify Company of all defective products or any safety problem encountered and keep Company informed of all customer complaints.
- Maintain, a minimum of $1 million for the first year and a minimum of $2M after that, sufficient liability insurance coverage to protect Company from all claims by customers resulting from the acts, failures, omissions and/or erroneous statements of the Dealer. The Dealer shall name Company as an additional insured on such policy and shall furnish Company with a certificate of insurance evidencing this coverage upon request and upon each renewal. Failure to maintain or evidence the required coverage is a material breach.
- The Dealer shall provide prompt and efficient after-sales service of all the Distributed Products under original warranty, covered by the extended warranty or by a service contract. The Dealer shall also deal with all customer claims and complaints, both prior to and after the sale. The Dealer shall avail Company’s standard warranty agreement for the defective parts replacement or refund.
- Only Distributed Products or other products authorized in writing by Company may be used to provide the after-sales service.
- The Dealer agrees to fulfill customer service, repair, and maintenance requirements at appropriate and reasonable costs to its customers. Dealer shall not refuse to provide services to any customers for whom Dealer has installed the Company’s products. Dealer shall deliver industry-standard services in a timely manner, including but not limited to maintenance, implementation of additional changes per the customer’s requirements, troubleshooting, and resolution of issues or problems experienced by such customers.
- The Dealer shall at all times conduct its business in such a manner as to enhance the reputation and credibility of Company and Distributed Products. It shall, in particular, refrain from participating in any unlawful, unfair, deceitful or immoral practice and refrain from selling the Distributed Products to any other individual, Dealer or organization, which has recourse to such practices.
- In the event of a merger or reorganization of the Dealer, or any change in the control of the Dealer or any transfer of a substantial part of the business thereof, the Dealer shall notify Company in writing thereof no later than 30 (thirty) days prior to the occurrence of such an event.
4. Company Leads
Company may, from time to time and at its sole discretion, assign homeowner or commercial property leads generated by Company (“Company Leads”) to the Dealer. The terms governing Company Leads are set out in Exhibit A (Company Lead Program), attached to and forming part of this agreement, and the Dealer agrees to be bound by them.
Exhibit A applies only to Company Leads and to jobs arising from Company Leads. Nothing in Exhibit A restricts the Dealer’s conduct of any business that does not originate from a Company Lead, and nothing in Exhibit A requires the Dealer to sell or install the Distributed Products exclusively outside of Company Leads.
In the event of a conflict between Exhibit A and the body of this agreement with respect to a Company Lead, Exhibit A controls. Company may suspend or terminate the assignment of Company Leads, or Exhibit A in its entirety, at any time without terminating the remainder of this agreement.
5. Prices Billed to Dealer
Company will periodically inform or make available via its online store to the Dealer of the current prices of its products. The Dealer undertakes to pay the prices applicable to the Distributed Products as specified in the Company price schedule or as per Company’s online store in force on the corresponding Order Date.
Prices quoted by Company do not include shipping charges and Tax.
6. Dealer’s Sales Price
The suggested prices published in the Dealer Price List are provided solely as a guide; the Dealer is entirely free to choose the price at which it will sell the Distributed Products.
Delivery will be made PREPAID to the Company warehouse from which the products are delivered. Except as otherwise indicated in the order, delivery will be made to the address of the Dealer as indicated in this agreement. All risks will be transferred to the Dealer from the moment the products are released by Company to a carrier.
Except as otherwise stipulated in the order, Company may make partial deliveries, which deliveries shall be made and paid separately within the time period set out in section.
7. Confidentiality
The Dealer acknowledges that any information concerning Company and the Distributed Products including, without being limited thereto, the organization of Company, or its business transactions, the customer lists, the Company Leads, the price list, the sales practices, the operational procedures and practices, the technical data for the Distributed Products and software, whether they be the property of Company or granted under license to Company by third parties, are of vital interest to Company and shall be kept confidential by the Dealer in all circumstances. Further, this agreement shall be considered to be confidential information. Accordingly, the Dealer undertakes, for the term of the agreement and for a period of 5 (five) years after its termination, notwithstanding the reason therefore, not to:
- Disclose, publish or disseminate any confidential information;
- Use any confidential information for its own account;
- Authorize any other person to disclose, publish or disseminate written confidential information, including appropriate markings of confidential written information.
8. Intellectual Property and Brand Use
Company retains all right, title, and interest in and to its patents, patent applications, trademarks, trade names, logos, trade dress, copyrights, software, firmware, mobile applications, cloud services, control protocols, design files, and marketing materials (collectively, the “Company IP”). Nothing in this agreement transfers any ownership interest in the Company IP to the Dealer.
Company grants the Dealer a limited, revocable, non-exclusive, non-transferable license to use Company trademarks and marketing materials solely to promote, sell, install, and service the Distributed Products during the Term, in the form and manner Company approves. The Dealer shall not alter Company marks or combine them with its own marks in a way that suggests joint ownership.
The Dealer shall not, and shall not permit or assist any third party to:
- Reverse engineer, decompile, disassemble, decrypt, or otherwise attempt to derive the source code, firmware, control protocol, wireless mesh protocol, or design of any Distributed Product, application, or cloud service;
- Modify, tamper with, clone, or create derivative works of any Distributed Product, firmware, or software, or defeat any technical protection measure;
- Remove, obscure, or alter any patent marking, trademark, serial number, or proprietary notice on any Distributed Product or its packaging;
- Register or attempt to register, in any jurisdiction, any trademark, trade name, domain name, social media handle, or design that is identical or confusingly similar to any Company mark, or any patent or design right covering or derived from the Distributed Products;
- Use the Company IP to develop, source, manufacture, or market any product that competes with the Distributed Products.
The Dealer shall promptly notify Company of any suspected infringement, counterfeiting, or misuse of the Company IP that comes to its attention, and shall reasonably cooperate with Company, at Company’s expense, in any resulting enforcement action.
Upon expiration or termination of this agreement, the Dealer shall immediately cease all use of the Company IP, remove Company marks from its vehicles, premises, signage, websites, social media, and advertising, and shall not hold itself out as a Certified Installer. The Dealer shall assign to Company, at Company’s request and expense, any registration it has obtained in breach of this section.
The Dealer acknowledges that a breach of this section would cause Company irreparable harm for which monetary damages would be inadequate, and that Company is entitled to injunctive relief without the posting of bond, in addition to all other remedies.
9. Indemnification
Dealer shall indemnify, defend, and hold harmless the Company and its officers, directors, agents, employees, and affiliates (collectively, the “Indemnified Parties”), from and against any and all claims, demands, actions, costs, expenses (including reasonable attorneys’ fees), liabilities, judgments, causes of action, proceedings, suits, losses, and damages of any nature whatsoever, which are threatened or brought against, or are suffered or incurred by, any Indemnified Party to the extent arising out of or resulting from the Dealer’s acts or omissions relating to this Agreement, including without limitation:
- any negligent or tortious conduct of the Dealer;
- any breach by the Dealer of any of the representations, warranties, covenants, or conditions contained in this Agreement;
- any violation by the Dealer of applicable laws or regulations;
- any breach by the Dealer of any express or implied including by its marketing, warranties relating to the Products, including implied warranties of merchantability and fitness for a particular purpose.
The Dealer shall further indemnify, defend, and hold harmless the Indemnified Parties from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with:
- Dealer’s sale or distribution of the Products;
- claim of personal injury, death, or property damage arising out of or in connection with the use or sale of the Products.
10. Term and Termination
This Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party provides written notice to the other party of its intention not to renew at least sixty (60) days prior to the expiration of the Initial Term or any subsequent Renewal Term. The Initial Term and any Renewal Term shall collectively be referred to as the “Term.”
Further, Company may terminate this agreement if the Dealer fails to fulfill any of its obligations as defined herein. The agreement will be terminated of right 30 (thirty) days after notice is given to the Dealer to fulfill its obligation by registered letter or email, in the event that, notwithstanding such notice of default, the Dealer has not remedied its default.
Notwithstanding the foregoing 30 (thirty) day cure period, Company may terminate this agreement immediately, without notice of default and without any opportunity to cure, upon: (a) any breach of Section A.4, A.5, or A.6 of Exhibit A; (b) fraud, misrepresentation, or falsification of lead disposition, project cost, insurance, or other reporting; (c) any breach of Section 8 (Intellectual Property and Brand Use); or (d) conduct by the Dealer that Company reasonably determines to be materially damaging to the reputation of Company or the Distributed Products.
Effect of termination. Upon expiration or termination for any reason, the Dealer shall immediately: (a) cease all use of the Company IP and cease holding itself out as a Certified Installer; (b) return or delete all Company Lead data and confidential information not required for warranty service, and certify the same in writing on request; (c) complete, or transition to Company or another Certified Installer as Company directs, all jobs then in progress; and (d) pay all amounts then owed to Company. Termination does not relieve the Dealer of its warranty, service, and maintenance obligations to customers for whom it has already installed the Distributed Products, nor of any obligation that survives under Section 17.
Company shall also be entitled to terminate the agreement by registered letter or email with acknowledgement of receipt in the event of judicial settlement, liquidation of property, insolvency, winding-up, provisional suspension of proceedings or any other procedures for the collective or judicial purging of the Dealer.
11. Warranties
Except for the warranty set out on the warranty provisions provided for the Distributed Products, Company provides no other warranty as to the performance of such products in respect of the Dealer or any other person. In any event, the liability of Company is limited to the price effectively paid by the Dealer for the Distributed Product and may in no case include a loss of profit or indirect damage of any nature whatsoever. Company reserves the right to modify the terms and conditions of the warranty at any time.
12. Non-Disparagement
The Installer agrees not to make, publish, or communicate any false, defamatory, misleading, or disparaging statements, claims, or representations about the Company, its services, products, or personnel in any form, including but not limited to social media platforms, public forums, or any other medium. The Installer further agrees that any violation of this clause, including the publication of false information or statements that violate the terms of this agreement, may result in immediate termination of this agreement, legal action, and/or other remedies as permitted by law.
13. Notices
Any notice provided for in this agreement shall be given by registered letter with acknowledgement of receipt to the address as indicated in this agreement or any other address of which either of the parties has given notice to the other. Notices relating to Company Leads may be given by email to the Lead Notice Address defined in Exhibit A.
14. Waiver
Any waiver by Company to sanction a breach of this agreement shall be made in writing and will be effective only to the extent indicated therein, and shall not be construed as a waiver of any suit in the event of any subsequent failure of the Dealer.
15. Assignment
The Dealer undertakes not to assign, delegate, transfer or sell any of the rights, duties or obligations which are incumbent thereon pursuant to this agreement. Any purported assignment by the Dealer in breach of this section is void.
Company may assign, delegate, or transfer this agreement and any of its rights and obligations hereunder, in whole or in part, without the consent of the Dealer, to any affiliate, successor, or acquirer, including in connection with a merger, reorganization, restructuring between MeshTek Labs and BlueHopper Solutions LLC, or sale of all or substantially all of the assets or business to which this agreement relates. This agreement binds and benefits the parties and their permitted successors and assigns.
16. Entire Agreement
This agreement, together with Exhibit A, contains the entire understanding of the parties and cancels and supersedes all prior discussions and agreements between the parties, whether written or oral, including any statement or assurance made by any distributor or third party. This provision is subject to Section 22.
17. Survival of the Obligations
All obligations which by their very nature continue beyond the termination of this agreement shall survive the expiration or termination hereof.
18. Jurisdiction
This Agreement shall be interpreted under the laws of the Texas. Any and all legal actions relative hereto shall be in the courts of the Dallas County in the state of Texas, and each party irrevocably submits to the exclusive jurisdiction and venue of those courts and waives any objection based on forum non conveniens.
In any action, arbitration, or proceeding to enforce or interpret this agreement, the prevailing party shall be entitled to recover from the other party its reasonable attorneys’ fees, expert fees, court costs, and other costs of enforcement and collection, in addition to any other relief awarded.
Notwithstanding the foregoing, Company may seek temporary, preliminary, and permanent injunctive relief and specific performance in any court of competent jurisdiction, without the posting of bond and without waiving any other remedy, to restrain a breach or threatened breach of Exhibit A, Section 7, or Section 8.
19. Invalidity
In the event that any of the clauses hereof be invalid, unlawful or unenforceable, the validity, legality and enforcement of all the other clauses shall not be affected thereby in any manner whatsoever.
20. Prohibition of False Information and Fraudulent Activities
Dealer agrees that all information provided by Dealer during the use of our services must be accurate, complete, and truthful. Dealer further agree not to falsify, misrepresent, or omit any information, including but not limited to personal details, payment information, lead disposition or project cost reporting, or any data submitted through our platform. Any attempt to engage in fraudulent activities, including impersonation, unauthorized access, or manipulation of Company’s systems, is strictly prohibited and may result in the immediate termination of your account, forfeiture of any associated benefits, and potential legal action.
21. Headings
The headings of the sections in this agreement are provided for convenience of reference only and shall not be construed or interpreted as limiting or affecting the substance of the provisions hereof.
22. Acceptance of this Agreement
The Dealer may be asked to accept this agreement more than once — at onboarding, upon store access, and within Company’s applications — but each acceptance is an acceptance of this same agreement: multiple acceptances create no separate, duplicate, or cumulative agreement, obligation, or fee, this agreement runs continuously from the first acceptance, the most recently accepted version governs and supersedes all earlier versions, and Company’s electronic records of acceptance are conclusive absent manifest error. No terms of service, license, or platform terms in Company’s applications or websites supersede or limit this agreement as it applies to the Dealer, and no distributor, sales representative, or other third party has authority to bind Company or to make any representation, promise, or guarantee on its behalf as to territory, exclusivity, lead volume, pricing, margin, or product availability.
By clicking “Accept,” you confirm that you have read, understood, and agree to be bound by the terms and conditions outlined in this agreement. Your electronic acceptance is legally binding and equivalent to your handwritten signature.
EXHIBIT A
COMPANY LEAD PROGRAM — Terms Applicable to Company Leads Only
This Exhibit A is attached to and forms part of the Certified Installer Company Agreement between MeshTek Labs / BlueHopper Solutions LLC (“Company”) and the Dealer. It applies only to Company Leads and to jobs arising from Company Leads. It does not restrict the Dealer’s conduct of any business that does not originate from a Company Lead. Capitalized terms not defined in this Exhibit have the meaning given in the body of the agreement.
A.1 Definitions
- “Company Lead” means any residential or commercial prospect, inquiry, referral, appointment, or customer contact that is generated, purchased, advertised for, or otherwise originated by Company and transmitted or assigned to the Dealer, together with all related contact data, project details, quotes, and correspondence.
- “Lead Job” means any project, quote, sale, or installation that arises from, is traceable to, or would not have occurred but for a Company Lead.
- “Non-Company Product” means any product not offered by Company as listed at BlueHopper.com and not otherwise authorized by Company in writing.
- “Lead Notice Address” means Sales@BlueHopper.com, or such other Company personnel or email address as Company designates in writing.
A.2 Assignment and Acceptance of Leads
- Company Leads are assigned at Company’s sole discretion. Company guarantees no volume, quality, territory, or exclusivity of leads, and may withhold, reassign, or discontinue leads at any time.
- The Dealer shall accept or decline each Company Lead within 24 (twenty-four) hours of transmission. Failure to respond is deemed a decline, and Company may reassign the lead without notice or compensation.
- Acceptance of a Company Lead constitutes agreement to every obligation in this Exhibit A with respect to that lead.
A.3 Diligence in Winning and Serving the Job
For every accepted Company Lead, the Dealer shall, at its own cost, use diligent efforts to win, install, and service the job, and shall at minimum:
- Make first contact with the prospect within 24 (twenty-four) hours of acceptance, by phone and by a second channel (text or email).
- Offer an on-site consultation or design visit within 3 (three) business days of first contact, at a time reasonably convenient to the prospect.
- Deliver a complete written quote — itemized scope, fixture count, layout, and price — within 5 (five) business days of the site visit.
- Make no fewer than 3 (three) documented follow-up attempts over the 14 (fourteen) days following delivery of the quote, until the prospect accepts, declines, or requests no further contact.
- Present an appropriate maintenance, service, and warranty support plan with every quote, and offer it again at the time of installation.
- Answer all pre-sale and post-sale questions regarding the Products, provide demonstrations on request, and demonstrate the mobile application and control features to the customer at handover.
- Provide continuing post-installation support, service, troubleshooting, and warranty administration, and not refuse service to any customer originating from a Company Lead.
Failure to meet these standards on 2 (two) or more Company Leads in any rolling 90 (ninety) day period entitles Company to suspend lead assignment, reassign open leads, or terminate the Company Lead program immediately.
A.4 Products on Lead Jobs
- The Dealer shall install, quote, specify, and supply only Distributed Products on every Lead Job.
- The Dealer shall not present, pitch, recommend, reference, compare, offer as an alternative, upsell, cross-sell, or quote any Non-Company Product to a Company Lead or Lead Job customer without Company’s prior written permission.
- The Dealer shall not substitute any Non-Company fixture, controller, power supply, driver, gateway, or application into a Lead Job, including as a “value option,” “budget alternative,” or backorder substitute. If Distributed Products are unavailable, the Dealer shall notify Company and delay the job rather than substitute.
- Where a Lead Job requires a product Company does not carry or cannot fulfill, the Dealer shall request written permission at the Lead Notice Address before sourcing, quoting, or installing it, identifying the customer, the product, and the reason. Permission is granted or withheld in Company’s sole discretion, applies only to the instance stated, and does not waive the consideration payable under Section A.8. Silence is not permission.
- Nothing in this Section prevents the Dealer from repairing, removing, or servicing a lighting system already installed at the property prior to the Company Lead, provided the Dealer does not sell, extend, or expand any Non-Company Product.
- Company warranties are void as to any installation into which a Non-Company Product has been introduced without written permission, and the Dealer assumes full responsibility for that installation.
A.5 Non-Circumvention and Non-Diversion
- The Dealer shall not, directly or indirectly, and shall not permit any owner, employee, affiliate, subcontractor, or related entity to: (a) transact with a Company Lead outside this Agreement; (b) route a Company Lead to another business, entity, or individual; (c) decline or report a Company Lead as lost and thereafter pursue, quote, or perform work for that prospect; or (d) perform work for a Company Lead using Non-Company Products without permission.
- This obligation applies for 36 (thirty-six) months following transmission of the Company Lead and survives termination of this Agreement.
- For 36 (thirty-six) months after termination, the Dealer shall not solicit any Company Lead customer for any Non-Company Product, and shall not disparage or discourage continued use of the Distributed Products.
A.6 Ownership of Company Leads and Customer Data
- All Company Leads and associated customer data are the exclusive property and confidential information of Company. The Dealer receives a limited, revocable, non-transferable license to use that data solely to perform the Lead Job and provide ongoing service to that customer.
- The Dealer shall not sell, license, share, export, or add Company Lead data to any list used to market Non-Company Products, and shall not use it for any purpose beyond the Lead Job.
- Upon termination, the Dealer shall return or delete all Company Lead data not required for warranty service, and shall certify deletion in writing on request.
A.7 Company’s Right to Reassign a Lead or Job
- Company may, at its sole discretion and at any stage — before, during, or after installation — reassign a Company Lead, a Lead Job, any portion of a Lead Job, any remedial work, or any additional or future work at the same property, to another Certified Installer or to Company itself. Company may do so with or without cause, and specifically may do so if Company determines, in its own judgment, that the Dealer is not serving the lead or the customer well.
- Company has no liability to the Dealer for lost profit, lost opportunity, or consequential damages arising from a reassignment, and no obligation to justify its decision.
- Upon reassignment, the Dealer shall promptly stop work, leave the site safe and clean, and deliver to Company all drawings, layouts, quotes, customer correspondence, and unused Distributed Products for the job. Distributed Products supplied for the job shall be returned for credit or invoiced at cost, at Company’s election.
- If Company reassigns for reasons other than the Dealer’s breach or poor service, Company shall pay the Dealer for labor actually performed and documented up to the date of reassignment, at an appropriate labor rate not to exceed $50.00 (fifty dollars) per hour, together with the documented cost of any third-party materials the Dealer purchased specifically for the job with Company’s prior approval. If Company reassigns because of the Dealer’s breach, poor service, or failure to meet Section A.3, any payment is at Company’s sole discretion, subject to the same $50.00 per hour cap.
- To claim payment, the Dealer must submit a written log of hours worked, by date and task, within 10 (ten) days of reassignment. Payment is due within 30 (thirty) days of Company’s receipt of an acceptable log.
- The Dealer shall look solely to Company for payment relating to a reassigned Lead Job, and shall not bill, pursue, or assert any claim or encumbrance against the customer or the customer’s property for that work.
A.8 Pricing, Service and Consideration on Lead Jobs
- Best pricing. The Dealer shall offer every Company Lead the best pricing and terms it offers to any other client for comparable products, scope, and site conditions, and shall not price a Company Lead less favorably than a comparable self-generated job.
- Best service. The Dealer shall offer every Company Lead customer maintenance, service, warranty support, and response-time commitments on terms, pricing, and scope no less favorable than those it offers to any other client for comparable work.
- No Company pricing direction. Company does not set, recommend, or approve the Dealer’s retail pricing or maintenance plan pricing. These are determined solely by the Dealer based on its own cost structure, locality, and market conditions.
- The Dealer shall present Company’s current product tiers and options as published at BlueHopper.com to every Company Lead, and shall not withhold, misrepresent, or disparage any tier.
- No fee on Distributed Products. The Dealer owes Company no referral fee, commission, or percentage on any portion of a Lead Job consisting of Distributed Products. Company’s consideration for those leads is the Dealer’s wholesale purchase of Distributed Products.
- 10% on Non-Company Products. Where Company has given prior written permission under Section A.4 for the Dealer to install a Non-Company Product on a Lead Job, the Dealer shall pay Company 10% (ten percent) of the total amount charged to the customer, inclusive of parts and labor, attributable to that Non-Company Product and its installation. Installing a Non-Company Product without permission is a material breach and does not excuse the 10%.
- Anti-unbundling. The amount attributable to a Non-Company Product means the full price of the product, its installation labor, and any associated wiring, mounting, controls, programming, or trim work, as charged to the customer or to any person at the customer’s direction, across all contracts, invoices, change orders, and legal entities, for 36 (thirty-six) months following the Company Lead. Structuring, splitting, or re-labeling work to reduce the 10% is a material breach.
- The 10% is payable within 15 (fifteen) days of the Dealer’s receipt of each customer payment, together with a copy of the corresponding customer invoice. Amounts unpaid after 30 (thirty) days accrue interest at 1.5% per month or the maximum permitted by law, whichever is less.
A.9 Reporting, Records and Audit
- The Dealer shall confirm each completed Lead Job installation by email to the Lead Notice Address within 5 (five) business days of substantial completion, stating the customer name, site address, products installed, and completion date, for warranty registration purposes.
- The Dealer shall report the disposition of each Company Lead (contacted / quoted / won / lost, with reason) by email to the Lead Notice Address within 48 (forty-eight) hours of each material event. If and when Company makes a CRM or online portal available and instructs the Dealer to use it, the Dealer shall log all such reporting in that system in addition to or in place of email, as Company directs.
- The Dealer shall maintain complete records of every Company Lead — quotes, contracts, change orders, invoices, product lists, and correspondence — for 3 (three) years.
- Company may audit those records on 10 (ten) days’ written notice, no more than twice per year, to verify compliance with this Exhibit A. If an audit reveals a breach or an underpayment exceeding 5%, the Dealer shall bear the full cost of the audit and pay the shortfall with interest.
A.10 Remedies for Breach of this Exhibit
- The parties agree that damages from a breach of Sections A.4, A.5, A.6, or A.8 are difficult to estimate, because they comprise Company’s lost wholesale product revenue on the job, the forfeited cost Company incurred to generate the lead, Company’s materials and labor committed to the project, warranty and service exposure, and harm to Company’s brand and dealer network.
- For each such breach, the Dealer shall reimburse Company for: (a) Company’s actual documented cost of all materials purchased, committed, or allocated for that lead project; (b) Company’s labor for design, quoting, coordination, project support, and administration of that lead project, at an appropriate labor rate not exceeding $50.00 (fifty dollars) per hour, supported by a written log of hours by date and task; and (c) Company’s documented cost to generate the lead.
- Minimum recovery. The total amount payable under the preceding paragraph shall in no event be less than $5,000.00 (five thousand dollars) per breach. The parties agree this minimum is a reasonable forecast of Company’s lost wholesale product revenue and brand harm, which are real but incapable of accurate estimation, and is liquidated damages and not a penalty.
- These amounts are in addition to, and not in lieu of, Company’s rights to injunctive relief, termination, suspension of lead assignment, revocation of Certified Installer status, reassignment of the job, and indemnification. Company is entitled to temporary and permanent injunctive relief without the posting of bond.
A.11 Precedence and Independence
- This Exhibit A governs Company Leads and Lead Jobs. In the event of a conflict between this Exhibit A and any other provision of this Agreement with respect to a Company Lead, this Exhibit A controls.
- Company may suspend or terminate this Exhibit A, or the assignment of Company Leads, at any time without terminating the remainder of this Agreement.
- Sections A.4 (as to installed jobs), A.5, A.6, A.8, A.9, and A.10 survive termination of this Agreement.
