Pella Certified Contractor Agreement This Agreement is made this day of, 20, by and between ( Pella Sales Entity ) and ( Remodeler ). In consideration of the mutual promises herein contained the receipt and sufficiency of which is acknowledged, Remodeler and Pella Sales Entity agree as follows: ARTICLE 1: THE CONTRACT DOCUMENTS The Contract Documents for this Pella Certified Contractor Agreement consist of this Agreement, including all separately executed Exhibits, including the Member Benefits in Exhibit A, The Marketing/Logo Agreement which is Exhibit B, written Modifications of this Agreement, and the agreement between Pella Sales Entity and the Pella Certified Contractor ( PCC ) for the sale of Pella products. These documents constitute the entire agreement of the parties and supersede all prior agreements, discussions, negotiations, and understandings. This Agreement may be modified only by a writing signed by all parties. ARTICLE 2: RELATIONSHIP BETWEEN REMODELER AND PELLA SALES ENTITY 2.1 Pella Sales Entity is in the business of selling windows, doors, and related products manufactured by Pella Corporation. 2.2 Remodeler operates a bona fide business providing building, construction, and remodeling services, including window and door installation and replacement, to the general public. 2.3 Pella Corporation has given approval to Pella Sales Entity to select Remodelers as Pella Certified Contractors provided that both the Sales Entity and the Remodeler abide by certain requirements. 2.4 Remodeler is not a subcontractor, employee, or agent of Pella Sales Entity, Pella Corporation, or other related entity. As a PCC, Remodeler interfaces with homeowners or other end user of the Pella Products to determine the product best suited for the specific use, and orders product from the Pella Sales Entity. 2.5 A PCC does not have any authority, express or implied, to act as the agent of a Pella Sales Entity or Pella Corporation. The PCC is responsible for its own business activities, including the development of marketing and business plans and the hiring, supervision and termination of employees. No fiduciary or franchise relationship, partnership, joint venture, or co-venture is intended or created by this Agreement. A PCC must clearly identify on all documents and websites that the PCC is an independent business. 2.6 PCC acknowledges that neither Pella Sales Entity nor Pella Corporation have represented: (1) that there is a guaranteed market for Pella products; or (2) that either will assist in obtaining accounts or customers or provide any form of marketing locations; or (3) that either will buy back any items if PCC is dissatisfied with this relationship; or (4) that PCC will derive income from efforts involving the products purchased under this Agreement; or (5) that either will provide a sales program or marketing program that enables PCC to derive income. 2.7 PCC acknowledges that the names and marks used in connection with Pella Corporation or its products, as they may be revised from time to time, are brand names and intellectual property, whollyowned by Pella Corporation, which Remodeler may use, without royalty, solely to advise customers that Remodeler is an authorized PCC. None of Pella's names or marks are licensed to PCC for use as a means of identifying PCC s business name or implying any other relationship. Exhibit B further explains the appropriate use of the Pella Logo and Marketing materials. 2.8 Pella Sales Entity will make available education about the manufacturer, Pella Corporation s, 1
installation methods and products for Remodeler. 2.9 Pella Sales Entity will provide Remodeler with certain benefits for participating in the PCC Program, including lead generation, priority support, and specialized education, as more specifically explained in the attached Exhibit A, Titled Member Benefits. ARTICLE 3: REMODELER S RESPONSIBILITIES AND OBLIGATIONS In recognition of the Pella Brand and the importance of the customer experience to the Pella Sales Entity, Remodeler agrees that it has certain responsibilities and obligations. 3.1 Remodeler will take all necessary steps to provide a safe workplace and quality workmanship on those projects where Remodeler is holding itself out as a PCC and for all work performed related to Pella windows. It is Remodeler s responsibility to: 3.1.1 Assure that all jobsite workers retained to sell or perform work related to the purchase or installation of Pella products ( Window Worker ) have passed a background check performed by a third party at the time of their retention by Remodeler. If a criminal background check indicates past drug-related offenses, it is Remodeler s responsibility to assure that the Window Worker also passed a drug screen at the time of retention. If a Window Worker has not performed jobsite work for Remodeler within the past year (365 days), Remodeler agrees to perform a background check, and drug screen if appropriate, before work is performed. 3.1.2 Perform j obsite work in a safe manner and comply with all applicable laws, rules, orders, ordinances, and governmental requirements, including but not limited to those governing the safety of persons or property, all applicable building codes and regulations, including EPA-RRP Rules, OSHA safety regulations, regulations regarding disposal of hazardous materials, all state and local safety regulations. 3.2 Timely pay all workers and vendors and pay all costs, expenses, fees, taxes, and penalties connected with either contractual or legal compliance, including sales and use taxes, benefits required to be provided under applicable law, all taxes imposed by any state or federal law for any employment or unemployment insurance, pensions, retirement funds, and to furnish all necessary reports and information to the appropriate federal, state, and municipal agencies. 3.3 Observe all federal, state or local laws, rules and/or regulations applicable to the conduct of its business and its relationships with potential or actual customers, and to accurately represent that designation of Remodeler as a PCC as defined in this Agreement. 3.4 To the extent required for a particular job, procure and maintain all Building Permits, Certifications, Licenses, and Governmental approvals and perform all required testing and follow lead safe practices. 3.5 When installing Pella products, follow the manufacturer s recommended installation instructions or shop drawings or other instructions specific to the project provided by the manufacturer. Remodeler is responsible for utilizing industry best practice and determining how to perform all services related to Pella products and follow good building practices. 3.6 As a PCC, Remodeler agrees to provide a copy of the Pella Limited Warranty prior to purchase and/or ensure all purchasers are aware that the Pella Limited Warranty is available online at www.pella.com/warranty. Remodeler also will make available the Owners Manual to all purchasers. 3.7 Remodeler agrees that when acting as a PCC, all Window Workers will receive and maintain training in the proper installation of Pella products, consistent with the manufacturers instructions. 3.8 As a PCC, Remodeler agrees to assume full responsibility for any defect in its installation service or other workmanship without cost to Pella Sales Entity or Pella Corporation. Remodeler further agrees to reimburse the Pella Sales Entity for any expenses it incurred in correcting or otherwise addressing any concerns or defects in the services or workmanship of Remodeler while holding itself out as a PCC. 2
3.9 As a PCC, Remodeler agrees to pay promptly for all materials, skills, labor, and equipment purchased from the Pella Sales Entity. 3.10 As a PCC, Remodeler agrees to make clear the Pella Certified Contractor designation is only in connection with Pella branded Products and the sell and installation of Pella branded Products. ARTICLE 4: WARRANTIES ON PRODUCTS AND INSTALLATION 4.1 Pella Sales Entity does not provide any warranty for products or services of the PCC or Pella Corporation. The Pella Limited Warranty issued with the Pella Products is issued by Pella Corporation. Pella Sales Entity does not warrant and is not responsible for the workmanship of the PCC. 4.2 Neither Pella Corporation nor Pella Sales Entity are responsible for any warranties issued by Remodeler as a PCC. Any warranty issued by Remodeler as a PCC must clearly state it is not guaranteed or issued by Pella Corporation or the Pella Sales Entity. ARTICLE 5: INSURANCE Remodeler shall purchase and maintain insurance, as set forth in this article, from any company or companies lawfully authorized to do business in the jurisdiction in which the project is located (and rated no less than VIII as to financial rating and no less than A- as to policy holders rating in the current edition of Best s Insurance Guide) and maintain such insurance as will protect against claims for bodily injury or death, or for damage to property, including loss of use, which may arise out of, result from or may be in any manner connected with the execution of Remodelers work as a PCC. 5.1 Remodeler agrees to procure and maintain the following minimum insurance coverage s and limits of liability, or equivalent insurance coverage program, for all time periods it is a PCC: 5.1.1 Workers Compensation Insurance with policy limits and wording as required by applicable law. 5.1.2 Commercial General Liability $1,000,000 each occurrence $2,000,000 aggregate (applicable on a per project basis) $2,000,000 products/completed operations aggregate, $1,000,000 personal and advertising injury combined single limit per occurrence. 5.1.3 Commercial Automobile Liability $ 1,000,000 each accident. 5.2 Commercial General Liability insurance required under this paragraph shall be written on an occurrence form and shall include coverage for products/completed operations (extending a minimum of two years after final acceptance of each project). Broad Form Property Damage including Completed Operations, Personal Injury with Employment Exclusion (if any) deleted, Blanket XCU, and Blanket Contractual Liability insurance applicable to Contractor s obligations hereunder. Commercial Automobile Liability insurance required under this paragraph shall also include coverage for all owned, hired and nonowned automobiles. 5.3 Remodeler shall obtain an endorsement in a form acceptable to Pella Sales Entity on its Commercial General Liability (including product/complete operations coverage), Commercial Automobile Liability, and Umbrella/Excess Liability (if any) policies adding both Pella Sales Entity and Pella Corporation and its subsidiaries as additional insureds under said policies. Such additional insurance coverage afforded to Pella Sales Entity and Pella Corporation and its subsidiaries under Remodeler s policies shall be primary insurance and not excess over, or contributing with, any insurance purchased or maintained by Pella Sales Entity and/or Pella Corporation. The Remodeler shall waive subrogation to the benefit of the Pella Sales Entity and Pella Corporation and its subsidiaries on the Workers Compensation, Employer s Liability, Commercial General and Auto Liability policies. A Certificate of Insurance, or other appropriate document, indicating that the Pella Sales Entity and Pella Corporation are additional insured must be provided to Pella Sales Entity each year. Inclusion of Pella Sales Entity and Pella Corporation as an additional insured does not reflect any acknowledgement by either entity that it is responsible for acts undertaken by PCC, but is intended to reflect the current business reality that claimants often assert claims, that are drafted to include additional parties and entities, even though such parties are without liability. 3
5.4 Within ten (10) days after execution of this Agreement, Remodeler shall file with Pella Sales Entity certificates of insurance showing required coverage. Renewal certificates shall be provided to Pella Sales Entity not less than ten (10) days prior to the expiration date of any of the required policies. All certificates of insurance shall be issued on an Acord 25 form and shall provide satisfactory evidence that Remodeler has complied with all insurance requirements. Remodeler s performance of work without fully complying with the terms of this article shall in no way be construed as a waiver by Pella Sales Entity of the Contractor s obligations to fully comply with the terms of this article. ARTICLE 6: INDEMNITY 6.1 Remodeler agrees to assume the entire responsibility and liability as it relates to Pella Sales Entity and Pella Corporation, to the fullest extent permitted by law, for all damages or injury to all persons and to all property, arising out of, resulting from, or in any way connected with, the work it provided as a PCC, or any acts of Remodeler or Remodeler s employees, agents, or servants arising in the normal course of Remodeler s work (or work of employees, agents, or servants), or the conduct of Remodeler's business. 6.2 In addition, the Remodeler agrees to defend, indemnify and hold harmless Pella Sales Entity, Pella Corporation, and its subsidiaries from and against any and all allegations, claims, actions, liabilities, expenses, losses or demands, including reasonable attorneys' fees and costs, arising out of, resulting from, or in any way connected with (i) the work provided as a PCC to the fullest extent permitted by law; (ii) a breach of any representation or warranty made by the Remodeler in this Agreement;.or (iii) any breach or failure by the Remodeler to comply with or perform fully any covenant or agreement under this Agreement, including but not limited to those contained in Article 3 of this Agreement, (iv) all damages or injury to any persons or property. ARTICLE 7: TERMINATION 7.1 Except as otherwise provided herein, this Agreement automatically terminates three years after it began, or upon signature of a new PCC Agreement, whichever occurs first. 7.2 In addition, Either party may terminate this Agreement for any reason upon fourteen (14) days written notice. At the termination of this Agreement, Remodeler agrees and acknowledges that it may not hold itself out as a current PCC and will not be entitled to receive Member Benefits. 7.3 Remodeler agrees that certain provisions of this Agreement survive termination. Specifically, but not limited to these provisions, Remodeler s obligation to retain insurance coverage for all job sites for which it performed work pursuant to Article 5, indemnification obligations contained in Article 6 and elsewhere, and the Arbitration Agreement in Article 8 survive the termination of this Agreement. ARTICLE 8: ARBITRATION Remodeler, Pella Sales Entity and Pella Corporation agree that any claim, dispute, and/or controversy now existing or arising in the future that Remodeler may have against a Pella Sales Entity (or its owners, directors, officers, managers, employees, agents) and/or Pella Corporation (or its owners, directors, officers, managers, subcontractors, employees, agents, or any other Pella subsidiary) or that the Pella Sales Entity and/or Pella Corporation may have against Remodeler, arising from, related to, or having a connection with the Pella Certified Contractor Agreement, Remodeler s relationship with Pella Sales Entity, Remodeler s relationship with Pella Corporation, Products from Pella Corporation or Remodeler s purchases from the Pella Sales Entity, or work as a Pella Certified Contractor shall be submitted to and determined exclusively by final and binding arbitration. 8.1 The applicable rules will be of the American Arbitration Association ( AAA or AAA Rules ). Copies of AAA s Commercial Rules are available on AAA s website (www.adr.org). 4
8.2 This Agreement shall be enforceable pursuant to and interpreted in accordance with the Federal Arbitration Act ( FAA ), Title 9 of the U.S. Code, and the parties agree that they are subject to FAA. 8.3 Although the Commercial Rules otherwise apply, Pella Sales Entity, Pella Corporation and Remodeler shall each pay for their own fees and costs specifically associated with the arbitration, and the AAA Rules will govern the course of the proceedings unless otherwise agreed. 8.4 Each Party may be represented by legal counsel of their own choosing. Each party shall pay its own attorney s fees, provided that an arbitrator may award attorney s fees and costs to the prevailing party under any applicable statute or written agreement to the same extent that attorney s fees and costs could be awarded in standard civil litigation. 8.5 The Arbitrator shall issue a written decision within forty-five (45) days of the later of: (1) the arbitration hearing; or (2) submission of the Parties post-arbitration briefs. The Arbitrator s written decision shall include findings of fact and conclusions of law. The Arbitrator shall have the authority to award the same damages and other relief that would have been available to an individual claimant in court pursuant to applicable law. The Arbitrator shall not have the authority to add to, amend, or modify, existing law. 8.6 The Parties further agree that, except as otherwise required by law, claims covered under this Agreement brought by either Remodeler or Pella Sales Entity or Pella Corporation must be brought on an individual basis, and the Arbitrator shall not have the authority to consolidate the claims of other Contractors or Pella Sales Entities into a single proceeding, to fashion a proceeding as a class, collective action, or representative action (including appointing Contractor as a class representative or private attorney general for others), or to award relief to a class or group of Remodelers. Remodeler further agrees that if a potential class member within any class, collective, or representative action in litigation, Remodeler will take all steps necessary to opt-out of the action or refrain from opting in, as the case may be. Any question or dispute concerning the scope or validity of this paragraph shall be decided by a court of competent jurisdiction and not the Arbitrator. Should a court determine that this paragraph is invalid for any reason, the parties hereby waive any right to arbitration of a class, collective, representative, or group action and instead agree and stipulate that such claims will be heard only by a judge in a court of competent jurisdiction. 8.7 The Arbitrator shall have the authority to consider and rule on dispositive motions, such as motions to dismiss, or motions for summary judgment, in accordance with the standards and burdens generally applicable to such motions in federal district court, except that the Arbitrator may establish appropriate and less formal procedures for such motions at the Arbitrator s discretion consistent with the expedited nature of arbitration proceedings. The Arbitrator may allow certain discovery, issue subpoenas to compel the attendance of witnesses at the arbitration hearing, and to compel the production of documents during discovery, and shall do so upon reasonable request of either party. This Agreement is not intended to, and does not, cover claims for which it is illegal to require arbitration. 8.8 The Parties agree that arbitration proceedings are to be treated as confidential, and that the Parties will act to protect the confidentiality of the proceedings. The Parties agree that neither they nor their counsel will reveal or disclose the substance of the arbitration proceedings, or the result, except as required by subpoena, court order, or applicable statute. If disclosure is compelled of one Party by subpoena, court order or other legal process, or as otherwise required by law, the Party agrees to notify the other Party as soon as notice of such process is received and before disclosure takes place. The Parties may, however, disclose such information to their accountants, legal, business, and tax advisors as necessary so long as they agree to maintain such information in strict confidence. 8.9 Any request for arbitration must be in writing and provided to the other Party by certified or registered mail, return receipt requested, within the time period provided for by the statute(s) of limitations applicable to the claim(s) asserted. The request must set forth a statement of the nature of the dispute, including the alleged act or omission at issue; the names of all persons involved in the dispute; the amount in controversy, if any; and the remedy sought. Within thirty (30) calendar days of receiving or serving such demand, Pella Sales Entity or Pella Corporation shall file the demand with the appropriate office of AAA. 8.10 If any provisions of AAA s Rules or of this Agreement are determined by the Arbitrator or by any court of competent jurisdiction to be unlawful, invalid, or unenforceable, such provisions shall be enforced to the greatest extent permissible under the law, if possible, and, if not, severed and all remaining terms 5
and provisions shall continue in full force and effect. 8.11 This Agreement only may be modified in a writing signed by both parties. Any modifications shall be prospective only and shall not apply to any claims or disputes that are pending in arbitration or that have been initiated by either party pursuant to the AAA Rules. 8.12 Finally, this Arbitration Agreement is the complete Agreement of the Parties on the subject of arbitration of disputes and supersedes any prior or contemporaneous oral or written agreement or understanding on the subject. Any revisions to this Agreement shall be made in writing and signed by both Parties. ARTICLE 9: MISCELLANEOUS PROVISIONS 9.1 Non-Exclusive Agreement. The parties acknowledge and agree that Remodeler has the right to engage in the same or similar activities for other businesses, companies, or entities during the pendency of this Agreement on whatever basis it chooses. 9.2 Notification. Notification or reporting as required by this Agreement shall be made to: Pella Certified Contractor: Email Address: _ Pella Sales Entity: Email Address: _ 9.3 Partial Enforcement. Should any portion, word, clause, sentence, or paragraph of this Agreement be declared void and unenforceable, such portions shall be modified or deleted in such a manner as to make this Agreement as modified legal and enforceable to the fullest extent permitted under applicable law. Except as expressly provided herein, no waiver by either party of any default in the performance of any part of this Agreement by the other party shall be deemed a waiver of any other default hereunder. 9.4 Assignment. Neither this Agreement nor any of the rights or obligations thereunder may be assigned by Remodeler, in whole or in part, without the prior written consent of Pella, which consent may be withheld in Pella s sole discretion. 9.5 By signing below, Remodeler agrees that it has been given a reasonable opportunity to have this Agreement and its attachments reviewed by an attorney, accountant, or other professional of its choice; that Remodeler has carefully read and fully understands the provisions of this Agreement; and that Remodeler is entering into this Agreement knowingly, voluntarily and with the intention of being legally bound by all terms herein. PELLA SALES ENTITY REMODELER/PCC (title): (title): Date Date 6
Exhibit A: Member Benefits CONFIDENTIALITY NOTICE: The specific program details offered to the Pella Certified Contractor are considered confidential information to the Pella Sales Entity and Pella Corporation and its subsidiaries. The specific program details can not be shared with anyone other than a Pella Sales Entity and Pella Corporation and Subsidiaries of Pella Corporation, provided that the Remodeler may disclose this Agreement to its affiliates, officers, managers, directors, governors, shareholders, members, representatives, agents, actual or prospective lenders, and investors pursuant to a written confidentiality agreement or other means adequate and appropriate to preserve the confidentiality of the specific terms of this Agreement. 7
Exhibit B: Pella Certified Contractor Marketing/Logo Agreement In an effort to promote Pella Certified Contractors, Pella Certified Contractors may choose to make appropriate use of the Pella Certified Contractor trademark and logo as long as that use is in connection with performance of projects or marketing materials involving Pella Branded products sold by (Remodeler) to the end user and comply with the Pella Certified Contractor brand guidelines. Remodeler may not use any Pella trademarks or trade names other than as specifically provided herein, unless prior written consent is received from Pella Corporation. The Remodeler may display the Pella Certified Contractor logo on clothing, vehicles, hats, or other appropriate uses, at its discretion, so long as those materials clearly communicate the fact that the Pella Certified Contractor is an independent business and not an agent, subsidiary or affiliate of Pella Corporation or the Pella Sales Entity. Further, it is the responsibility of the Pella Certified Contractor to make clear the Pella Certified Contractor designation is only in connection with Pella Branded Products and the installation of Pella Branded Products and does not apply to other remodeling construction services. Pella Corporation or Pella Sales Entity can terminate this agreement with any or no reason. Remodeler agrees that upon termination of the Pella Certified Contractor Agreement, it shall cease use of any Pella Certified Contractor trademarks and shall deliver to Pella any advertising, promotional or merchandising material provided during the term of this Agreement in connection with the Pella Certified Contractor Program. I understand and agree to the terms of the Pella Certified Contractor Marketing/Logo Agreement. Printed Name of Business Owner Signature of Business Owner Date