MAPEHEAT™ PRO INSTALLER AGREEMENT

READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY! IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A MAPEHEAT PRO INSTALLER, AS WELL AS LIMITATIONS ON AND EXCLUSIONS FROM LEGAL RIGHTS THAT MAY APPLY TO YOU.

BY CLICKING THE  “YES” SELECTION ON THE ONLINE PRO INSTALLER TRAINING REGISTRATION FORM OR SELECTING “YES” ON THE PRINTED REGISTRATION FORM, YOU AGREE TO THE TERMS OF, ARE CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK OR SELECT “YES” WHEN REGISTERING FOR PRO INSTALLER TRAINING.

Please contact us at TServicesCA@mapei.com  1-800-361-9309 if you have any questions about this Agreement.

This Mapeheat PRO Installer Agreement (the “Agreement”) is between MAPEI Inc. (“MAPEI”) and you, an entity which is lawfully doing business and operating in accordance with the laws of the province in which it resides or is incorporated, hereby being licensed by this Agreement to act as a Mapeheat PRO Installer (“You” or “Installer”) of MAPEI products and systems. Installer’s acceptance of this Agreement and all of its terms and conditions will become effective upon the date You receive your Pro Installer Welcome Letter and number via email.

By clicking or selecting “YES” in the registration form, You are acknowledging and agreeing that Your company desires to become a Mapeheat PRO Installer of Mapeheat products and systems, and that in exchange for the right to hold ones’ self out as a Mapeheat PRO Installer, You will abide by all the terms and conditions set forth in this Agreement and acknowledge, agree, warrant, and represent to MAPEI that:

• Installer agrees and acknowledges that being designated as a Mapeheat PRO Installer is conditioned on both successfully completing all training programs, and review of all Mapeheat installation related documents,  as and when required by MAPEI.

• Installer agrees and acknowledges that it will, at all times while acting in its capacity as a Mapeheat PRO Installer, (i) maintain its status as duly licensed to do business in its jurisdiction of incorporation and all jurisdictions in which it conducts operations, (ii) maintain all necessary licenses, permits, and other such governmental authorizations to perform work as an electrical contractor wherever it conducts operations, and (iii) will abide by all applicable laws, rules, and regulations applicable to its business operations (including but not limited to the Canadian Electrical Code Part 1) , and (iv) conduct all installation operations in strict accordance with the then-current installation guides, guidelines, and manuals published by MAPEI for Mapeheat.

• Installer agrees that at all times while operating as a Mapeheat Pro Installer on a job site, Mapeheat  will be the exclusive radiant floor heating products installed by Installer, unless it first obtains MAPEI’s prior written consent. Installer also acknowledges and agrees that MAPEI retains the right to enter into licensing agreements similar to this one with other installers, some of which may or may not be in competition with Installer.

• Installer agrees to employ or engage only “Qualified and Competent Personnel” (as defined below) to work on projects involving the sale or installation of Mapeheat  products and systems.  For purposes of this Pro Installer Agreement the term “Qualified and Competent Personnel”:
  

When used in reference to persons performing electrical work (i.e., any portion of Installer’s work involving the connection of any component of a Mapeheat product or system to an electrical power source, circuit, electrical connection, or thermostat), means an electrician (i)  properly and currently licensed to work in the jurisdiction where the work is being performed; and (ii) who has been properly trained as a Pro Installer on the proper installation of Mapeheat products and services; and (iii) conducts all installation operations in strict accordance with all applicable laws, rules, regulations (including but not limited to the Canadian Electrical Code Part 1) and then-current installation guides, guidelines, and manuals published by MAPEI for Mapeheat

When used in reference to any other person (i.e., any person other than a person performing electrical work, as defined above), means personnel who, in addition to having had the requisite training and experience in their respective field(s) or trades, have successfully and timely completed all MAPEI and Mapeheat formal training programs as and when required by MAPEI.

Installer agrees and represents that it is unaware of any criminal, driving, substance abuse, or other such  impairments among employees, contractors and subcontractors which perform work involving Mapeheat products or systems. 

• Installer agrees and represents that it will warrant all of its workmanship which it performs as a Mapeheat PRO Installer for a period of not less than two years from the date of installation. Installer also agrees it will not offer a warranty on any Mapeheat product or system greater than the product and system warranties provided by MAPEI.
  
  

• Installer agrees and acknowledges that, provided it is in compliance with all of its obligations under the program, Installer may use, without alteration and subject to MAPEI’s sole discretion and right to revoke this permission at any time without prior notice of approval to Installer, the Mapeheat PRO Installer, Mapeheat, and the MAPEI 25-Year and Lifetime System Warranty Icons depicted below:

These Marks in Canada are for the sole purpose of marketing, selling and installing MAPEI products. Notwithstanding the foregoing, nothing herein shall grant any ownership, right, title, or interest in or to the Marks, which remain MAPEI’s sole and exclusive property. Installer further agrees to take all reasonably necessary steps to assist MAPEI in protecting its ownership interests in the Marks, and to facilitate MAPEI’s exclusive control over the Marks.

• Installer agrees and acknowledges that nothing in this Agreement, nor the ability to use any MAPEI Mark(s) is in any way a grant of authority for Installer to act for or bind MAPEI in any way, or to act or represent ones’ self as an agent of MAPEI in any capacity, for any purpose whatsoever.

   

• Installer agrees to permit MAPEI to audit and inspect its installation practices and methods at any time/job site to ensure compliance with MAPEI standards and installation details.

Installer agrees to fully indemnify, defend, and hold MAPEI (and its parent company, affiliates and related companies, and its or their employees, officers, directors, shareholders, legal representatives, successors and assigns), (starting with the term “MAPEI”, individually and collectively, the “MAPEI Parties”) harmless from and against any suit, loss, claim, damage, injury, fine, penalty or expense, whether in tort, negligence, contract, warranty, strict liability or under any other legal theories, arising from or in connection with:  (a) any act or omission of Installer in its capacity as a Mapeheat PRO Installer, and/or as a direct or indirect result of its status as a Mapeheat PRO Installer, and/or as a direct or indirect result of any breach of this Agreement by Installer or its employees or agents, except to the extent such loss, injury or damage results from MAPEI’s gross negligence, bad faith or willful misconduct or act; (b) Installer’s breach of any term or provision of this Pro Installer Agreement which remains uncured after the expiration of the curative period specified herein; or (c) any infringement by Installer upon any third party intellectual property right.  This indemnity shall include, but is not limited to, reasonable attorney and paralegal fees and court costs at all judicial levels.  This indemnity shall survive the termination of this Pro Installer Agreement. 

• TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE MAPEI PARTIES WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF INCOME, REVENUE, LOSS OF GOODWILL, REPUTATION OR SAVINGS, LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA, CONTENT OR SOFTWARE RESTORATION, COST OF REMOVAL OR REINSTALLATION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LABOR COSTS, LOSS OF USE OR INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS OR ANY CLAIMS BY THIRD PARTIES (INCLUDING BUT NOT LIMITED TO ANY DEFENSE THEREOF), OR OTHER SIMILAR COSTS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES, ARISING FROM OUR PRO INSTALLER PROGRAM AND OFFERINGS, OR ARISING UNDER THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY OR THROUGH YOU MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF: (I) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT; OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT, THE MAPEI PARTIES SHALL BE ENTITLED TO THE MAXIMUM LIMITATIONS PERMITTED AND ALL OTHER TERMS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. SUBJECT TO THE FOREGOING SENTENCE, IN NO EVENT SHALL THE MAPEI PARTIES’ TOTAL LIABILITY TO YOU EXCEED IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO MAPEI FOR YOUR ACCESS TO, PARTICIPATION, OR USE OF OUR PRO INSTALLER PROGRAM. THIS PROVISION SHALL HAVE NO EFFECT ON MAPEI’S CHOICE OF LAW PROVISION SET FORTH BELOW.
  

• Installer understands and agrees that MAPEI has the right to terminate this Agreement either with cause or without cause, in its sole discretion, upon thirty (30) days’ written notice, without liability or penalty  or at any time a party becomes insolvent or a debtor in bankruptcy. No later than the effective date of termination, Installer must cease all use of the Marks and permanently discontinue all use of any type of all documents and things bearing the Marks. Upon MAPEI’s request, Installer also will certify in writing that it has complied with the cessation and destruction obligations set forth in this paragraph.

• Installer agrees to obtain and/or maintain all required and appropriate insurance coverages to cover any insurable liabilities or obligations that might arise out of or relate to its work as a Mapeheat PRO Installer, including but not limited to all insurance coverages necessary to cover the contractual indemnification obligations set forth herein. Such insurance must be a) comprehensive general liability (including product and contractual liability) of not less than $3,000,000 per occurrence; (b) automobile comprehensive liability of not less than $1,000,000 per occurrence; and (c) such other types of insurance, in sufficient limits, to cover the risks inherent in performing under this agreement. Each policy of insurance shall name Installer’s customer and/or user as an additional insured and shall also contain a provision that it will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been furnished to Installer’s customer and/or user.  Installer shall immediately provide certificates of insurance to MAPEI for all insurance policies required under this Agreement.

All notices required or given under this PRO INSTALLER AGREEMENT must be in writing and will be effective (a) when delivered by express overnight courier service or by the Canadian postal system to the address specified in this PRO INSTALLER AGREEMENT if sent by certified mail, with a copy by email. Any party may change its address by giving written notice to the other party in accordance with the notice requirements specified above.

Each party agrees that any and all confidential information - such confidential information being trade secrets, proprietary information, non-public information or otherwise, disclosed (or to be disclosed) to the other party - shall remain strictly confidential at all times and the party receiving such confidential information shall not divulge or use, either directly or indirectly, such confidential information for its benefit or of any third party.  Each party receiving confidential information shall promptly return all such confidential information to the disclosing party upon the termination of this Pro Installer Agreement or upon either party’s written demand. This paragraph shall survive termination of this Pro Installer Agreement.

Installer shall, at all times during its performance under this Pro Installer Agreement, comply with all applicable laws and regulations. Installer agrees to furnish certificates of legal compliance to MAPEI upon written request. In addition, Installer shall totally refrain from engaging in any illegal, unethical or deceptive trade practices.

This Pro Installer Agreement shall be governed by, construed and enforced according to the laws of the province of Quebec and the laws of Canada, when and where applicable. If any litigation arises from or in connection with this Pro Installer Agreement, the prevailing party, as determined by a court of competent jurisdiction, shall be reimbursed for its reasonable attorney and paralegal fees and court costs at all judicial levels, including appellate proceedings, from the non-prevailing party, and venue for any such litigation shall exclusively occur in the courts of the city and district of Laval, province of Quebec, Canada, which venue the parties irrevocably consent and submit to, and expressly waive any objection.

Any failure by a party to require full or strict performance by the other party of any of the terms under this Pro Installer Agreement or to exercise any right or remedy hereunder, shall not waive or diminish that party’s right thereafter to demand strict compliance with the pertinent term or provision, or to exercise any such right or remedy. Waiver of any default under this Pro Installer Agreement shall not waive a subsequent default under this Pro Installer Agreement.

The parties may assign or delegate their respective rights, duties and responsibilities under this Pro Installer Agreement, in whole or in part, to their respective parent company or an affiliated entity, provided written notice of such assignment is first given to the other party. No other assignment or delegation shall be permitted by a party without the prior written consent of the other party whose consent shall not be unreasonably withheld, conditioned or delayed.  

It is expressly understood by Installer that any additional or different provisions contained in any other documents (whether an order acknowledgement, sales invoice, shipping instruction form, or otherwise) will not be effective unless approved in writing by MAPEI, in accordance with the requirements for modifying this Pro Installer Agreement as set forth below.  

If any provision under this Pro Installer Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable the remaining provisions of this Pro Installer Agreement. 

For purposes of this Pro Installer Agreement, the term “parties” shall mean Installer and MAPEI. Nothing contained in this Pro Installer Agreement is intended to confer any rights or remedies upon third parties or shall be construed to create a relationship of joint ventures or partners between the parties.  No usage of trade, course of performance or course of dealing purporting to modify, vary, explain or supplement the terms of this Pro Installer Agreement shall be binding upon the parties unless made in writing and signed by the party against whom enforcement is sought. 

In the event of any ambiguity in this Pro Installer Agreement, it shall not be construed against one party or the other merely by virtue of any such party having drafted this Pro Installer Agreement or any particular provision because it is fully acknowledged that both parties have contributed substantially and materially to the preparation of this Pro Installer Agreement. 

This Pro Installer Agreement shall be binding upon and inure to the benefit of the parties and their legal representatives, successors and permitted assigns.  The individuals signing this Pro Installer Agreement or any subsequent amendment to this Pro Installer Agreement have the authority to bind their respective companies to that document without any further documentation or approvals.   

This Pro Installer Agreement may only be amended by written agreement signed by duly authorized representatives of both parties.  An amendment to this Pro Installer Agreement must specifically reference the provision(s) to be amended.

This Pro Installer Agreement constitutes the entire understanding between the parties and supersedes and replaces all prior and contemporaneous agreements, promises, representations, warranties, guarantees, inducements, and any other understandings between the parties, whether oral or written.

• When registering for Pro Installer training and selecting “YES” to the terms of this Agreement, a binding contract is created between Installer and MAPEI, and it will obligate both MAPEI and Installer to adhere to the terms and conditions stated above.