The following are the requirements to become an Authorized Clare Controls Dealer “DEALER” and remain a DEALER in good standing:
- DEALER will submit a completed DEALER Application/Agreement.
- DEALER has been in the residential alarm or home integration and automation systems business for at least one year.
- DEALER is responsible for system design, layout, installation and configuration.
- DEALER will maintain experienced technical staff familiar with the Clare Controls’ “CLARE” products and services.
- DEALER has and will maintain all licenses required to conduct its business in the locations indicated in the completed application.
- DEALER will maintain high quality standards and ensure CLARE products are installed in accordance with CLARE instructions and national/local electrical codes.
- DEALER will successfully start up and configure CLARE products and communicate system operation to the homeowners.
- DEALER will be financially responsible for ensuring the CLARE equipment operates to the client’s satisfaction, within the scope of the DEALER/client agreement.
- DEALER will maintain at least one CLARE Technical trained person at all times. If the trained person leaves the employment of the DEALER, another person must attend certification training within one month.
- DEALER will ensure that the system installed in the customer home communicates with the Clare cloud and that all installed devices work as intended.
- DEALER will have every customer execute an approved End User Agreement between DEALER and Customer when alarm reporting services are included.
- DEALER shall submit its end user contract to Clare for approval and agrees that no substantial and material changes shall be made to the agreement.
- DEALER shall obtain and carry general liability insurance with alarm industry E&O insurance. Minimum coverage shall be one million dollars per incident and two million dollars aggregate; occurrence based policy. Before installing any customer systems DEALER shall deliver to Clare a Certificate of Insurance.
- DEALER to provide a copy of the state issued sales tax exemption certificate or complete the IRS form titled Uniform Sales & Use Tax Exemption/Resale Certificate – Multijurisdiction
- AUTHORIZED CLARE CONTROLS DEALER “DEALER”: any person or entity with whom CLARE has a currently effective Dealer Agreement.
- “CLARE Products”: the products listed in the CLARE Published Price Lists, as the same may be amended from time to time.
- “End User”: a person or entity that acquires CLARE Products for the purpose of its own use and not for remarketing.
2. Designation as a DEALER.
- CLARE designates DEALER as a non-exclusive DEALER for the CLARE Products, as the same may be amended by agreement of the parties from time to time, and DEALER accepts such designation.
- DEALER agrees that CLARE may, in its sole discretion, designate any number of other DEALERS or distributors at any time and place regardless of DEALER’S location(s), and also agrees that CLARE may, in its sole discretion, market CLARE Products through its own sales force, its agents, or other DEALERS to any customer in any area without any liability to DEALER.
- In its actions as a DEALER, DEALER is an independent contractor and is not and shall not be deemed to be the legal representative, agent, or employee of CLARE or its EXCLUSIVE DISTRIBUTOR (hereinafter defined) for any purposes whatsoever. DEALER is not authorized by CLARE or EXCLUSIVE DISTRIBUTOR to transact business, incur obligations (express or implied), bill goods, or otherwise act in any manner in the name or on behalf of CLARE or EXCLUSIVE DISTRIBUTOR, or to make any promise, representation, or warranty with respect to CLARE Products or any other matter in the name or on behalf of CLARE or EXCLUSIVE DISTRIBUTOR.
3. Term of Agreement.
This Agreement shall become effective on the Effective Date and shall remain in effect until either terminated at will pursuant to this Section 3 or terminated under the provisions of Section 12. Either CLARE or DEALER may terminate this Agreement at will, at any time, with or without cause, for any reason that it, in its sole discretion, deems advisable, by written notice given to the other not less than thirty (30) days prior to the effective date of such termination. In the event of termination under this Section, Section 13 shall govern the rights and obligations of the parties.
4. CLARE Responsibilities.
- Sell CLARE Products to DEALER on a non-exclusive basis for resale to End Users. CLARE reserves the right to change pricing and product specifications, or to discontinue the sale of any or all CLARE Products without notice;
- Furnish DEALER with manuals, advertising and promotional literature, and other sales aids that CLARE may, in its sole discretion, elect to prepare;
- Provide DEALER with reasonable telephone support and technical assistance on terms and conditions to be agreed upon from time to time.
- Provide DEALER with secured DEALER website portal.
5. DEALER Responsibilities.
- DEALER shall use its best efforts to actively and diligently promote the distribution, sale, and use of CLARE Products, and to develop, promote, and maintain the goodwill and reputation of CLARE. Without limiting DEALER’S responsibilities under this Agreement, DEALER shall:
- Maintain an adequate and properly trained sales, technical, and training staff to market, demonstrate, sell, install, and train End Users to use CLARE Products;
- Include CLARE Products in DEALER’s advertising, website listing, and promotional literature;
- Maintain complete and accurate billing and contact information with CLARE, and notify CLARE if it opens any new offices or branches or closes or ceases to operate through any of its offices or branches;
- Refrain from engaging in any illegal, deceptive, misleading, or unethical practices in any part of its business, and comply with all applicable federal, state, and local laws, rules, and regulations;
- Assist customers with warranty and non-warranty repairs in a timely and professional manner;
- Remedy promptly each customer complaint concerning (i) CLARE Products, (ii) DEALER, (iii) CLARE, and promptly advise CLARE in writing of any complaints DEALER cannot remedy;
- Maintain in effect during the term of this Agreement, liability, product liability, and other insurance sufficient to protect CLARE against claims arising out of or relating to DEALER’S conduct in the sale, installation, and service of CLARE Products, with limits of not less than one million dollars per occurrence, and furnish to CLARE certificates evidencing such insurance upon request;
- Make available to CLARE upon request the current status of DEALER’s inventory of CLARE Products;
- Maintain for a period of three (3) years a record of the name and address of each customer who has purchased CLARE Products and a log of all service calls, complaints, or inquiries from such customers. This information will be made available upon request by CLARE in order to handle a customer inquiry or complaint.
6. Prices and Payment.
- The prices for CLARE Products sold to DEALER under this Agreement are set forth in a published price list.
- CLARE reserves the right to revise its prices at any time, without prior notice to DEALER. CLARE will maintain its price list on its web site, which DEALER can access at any time.
7. Ordering Procedure.
- DEALER shall from time to time order CLARE Products from Wirepath Home Systems, LLC dba SnapAV “EXCLUSIVE DISTRIBUTOR”. All ordering terms and conditions and shipping policies are subject to the terms and conditions explicitly detailed by its EXCLUSIVE DISTRIBUTOR.
- CLARE and its EXCLUSIVE DISTRIBUTOR do not represent or guarantee to the DEALER the continued availability for sale of any of the CLARE Products, and DEALER hereby expressly releases CLARE and its EXCUSIVE DISTRIBUTOR from any and all liability for loss or damage in any way arising out of the failure of CLARE and its Exclusive Distributor to accept or fill any orders of DEALER for CLARE Products due to the unavailability for sale of any of the CLARE Products.
8. Delivery and Returns.
- CLARE Products sold under this Agreement are covered by a return policy issued by its Exclusive Distributor.
9. Use of CLARE Name:
- During the term of this Agreement, DEALER is authorized by CLARE to use, if DEALER so desires, the trade name CLARE DEALER in connection with DEALER’s advertisement and promotion of CLARE Products. DEALER shall conduct its business solely under DEALER’S own name and shall not use the name “CLARE” in its corporate or trade name, nor shall DEALER use, display, or show said trade name in any manner or for any purpose except as permitted in this Agreement.
- Nothing in this Agreement shall give DEALER any interest or license in said trade name. DEALER specifically agrees to refrain from using any trademark or trade name in any manner which would cause a reasonable person to infer that DEALER has any affiliation with CLARE other than the right conferred in this Agreement to market CLARE Products. DEALER further agrees not to affix any CLARE trademarks, logos, or trade names to any product other than CLARE Products.
10. Internet Sales.
DEALER is expressly prohibited from directly selling the Clare products, purchased from Clare in accordance with this agreement through the internet to any general person or business. This does not prohibit the DEALER from utilizing the internet to promote the Clare products. DEALER acknowledges and agrees that violation of this internet policy may result in immediate termination of this agreement a the sole discretion of Clare.
11. WIRELESS AND INTERNET OR CELLULAR SERVICE ACCESS CAPABILITIES:
DEALER acknowledges that CLARE products require high-speed Internet access and or wireless services at an end user’s premises. CLARE does not provide Internet service, maintain Internet connection, wireless access or communication pathways, computer, smart phone, electric current connection or supply. In consideration of DEALER making its monthly payments for remote access to Clare Control’s cloud service, CLARE will authorize DEALER access to CLARE’ portal to its cloud service. CLARE is not responsible for DEALER’S access to the Internet or any interruption of service or down time of remote access caused by loss of Internet service, cellular or any other mode of communication used by DEALER to access the Clare Control’s cloud service. CLARE is not responsible for the security or privacy of any wireless network system or router. Wireless systems can be accessed by others, and it is not Clare Control’s responsibility to secure access to systems with pass codes and lock out codes. CLARE is not responsible for access to wireless networks or devices that may not be supported by communication carriers and upgrades to customer’s system will be at DEALER’S expense.
12. LIMITED WARRANTY / REPAIR AND REPLACEMENT:
In the event that any part of Clare Control’s equipment becomes defective, CLARE agrees to make all repairs and replacement of parts without costs to the DEALER for a period as designated in the product documentation. CLARE reserves the option to either replace or repair the equipment and reserves the right to substitute materials of equal quality at time of replacement or to use reconditioned parts in fulfillment of this warranty. This warranty does not include batteries, electrical surges, lightning damage, software upgrades and repairs, communication devices that are no longer supported by communication pathways, obsolete components, and components exceeding manufacturer’s useful life. Except as set forth in this agreement, CLARE makes no express warranties as to any matter whatsoever, including but not limited to, unless prohibited by law, the condition of the equipment, its merchantability, or its fitness for any particular purpose, and CLARE shall not be liable for consequential damages. CLARE does not represent nor warrant that the system may not be compromised or circumvented, or that the system will prevent any loss by burglary, hold-up, fire, temperature or otherwise or that the system will in all cases provide the protection for which it is installed. CLARE expressly disclaims any implied warranties, including implied warranties of merchantability or fitness for a particular purpose. The warranty does not cover any damage to material or equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation by anyone other than CLARE. DEALER acknowledges that any affirmation of fact or promise made by CLARE shall not be deemed to create an express warranty unless included in this agreement in writing. DEALER’s exclusive remedy for CLARE’S breach of this agreement or negligence to any degree under this agreement is to require CLARE to repair or replace, at CLARE’ option, any equipment which is non-operational. This Limited Warranty gives DEALER specific legal rights and it may also have other rights which vary from state to state. DEALER agrees that its agreement with its customers shall include limited warranty terms consistent with this agreement.
To receive service or replacement for the Product under warranty or service option, DEALER shall follow the return policies as designated by it’s EXCLUSIVE DISTRIBUTOR.
CLARE will not provide reimbursement for repairs made by third parties and any unauthorized, improper or incorrectly performed maintenance or repair by others voids this Limited Warranty.
13. NO WARRANTIES OR REPRESENTATIONS: DEALER’S EXCLUSIVE REMEDY:
CLARE does not represent nor warrant that its equipment and interactive services, including professional monitoring if selected by DEALER’s customer, will prevent any loss, damage or injury to person or property, by reason of burglary, theft, hold-up, fire, temperature, water or other cause, or that the equipment will in all cases provide the protection for which it is installed or intended. DEALER acknowledges that CLARE is not an insurer, and the DEALER assumes all risk for loss or damage to DEALER or DEALER’S customers, including their premises, its contents or persons on the premises. CLARE has made no representations or warranties other than Limited Warranty above, and hereby disclaims any warranty of merchantability or fitness for any particular use.
14. INDEMNITY / WAIVER OF SUBROGATION RIGHTS / ASSIGNMENTS:
DEALER agrees to defend, advance expenses for litigation and arbitration, including investigation, legal and expert witness fees, indemnify and hold harmless CLARE, EXCLUSIVE DISTRIBUTOR, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by DEALER’S subscriber, third-parties or by DEALER, including reasonable attorneys' fees and losses, asserted against and alleged to be caused by CLARE's or EXCLUSIVE DISTRIBUTOR’S performance, negligence or failure to perform any obligation under or in furtherance of this agreement. Parties agree that there are no third-party beneficiaries of this agreement. DEALER on its behalf and any insurance carrier waives any right of subrogation DEALER’S insurance carrier may otherwise have against CLARE or CLARE's subcontractors arising out of this agreement or the relation of the parties hereto. DEALER shall not be permitted to assign this agreement without written consent of CLARE, which shall not unreasonably be withheld.
- In addition to the termination provisions set forth in Section 3 of this Agreement, CLARE may terminate this Agreement in the event of a breach of this Agreement by DEALER, if such breach remains uncured thirty (30) days after DEALER’s receipt of written notice thereof from CLARE (unless such breach cannot by its nature be cured, in which case CLARE may terminate this Agreement by written notice effective immediately upon the occurrence of such breach).
- Either party may terminate this Agreement effective immediately upon providing written notice of such termination to the other party at any time upon the occurrence of any of the following events: (i) the other is adjudicated a bankrupt or files a proposal, voluntary petition, or similar proceeding, or otherwise seeks relief, under or pursuant to any bankruptcy, insolvency, or reorganization act, statute, or proceeding; or (ii) the other passes a resolution providing for the dissolution, liquidation, or winding up of such party; or (iii) the other has filed against it any involuntary petition or similar proceeding under any bankruptcy, insolvency, or reorganization act, statute, or proceeding, has instituted against it any involuntary proceeding in any court to declare it insolvent or unable to meet debts, or has a receiver appointed for all or a substantial part of its property, and the same is not dismissed, vacated, set aside, or released within sixty (60) days thereafter; or (iv) the other becomes insolvent or unable to meet debts, institutes any voluntary proceeding in any court to declare it insolvent or unable to meet debts, makes an assignment for the benefit of creditors, or consents to the appointment of a receiver for any of its property.
16. Rights and Duties Upon Termination.
- Upon termination of this Agreement, all sums owed by DEALER to CLARE shall become immediately due and payable, regardless of credit arrangements that may previously have been made.
- Upon termination of this Agreement, all outstanding purchase orders shall terminate.
- Upon termination of this Agreement, DEALER shall discontinue any and all use of CLARE’ trademarks, logos, the trade name “Authorized CLARE DEALER,” and any other identification with CLARE. DEALER shall remove from all forms, signs, telephone directories, and any and all other material, any statement or implication that it is a DEALER of CLARE Products.
- Upon termination of this Agreement, each party shall return the other party’s Confidential Information.
- Neither CLARE nor DEALER will be liable to the other for damages of any kind, including direct, indirect, special, incidental, consequential, punitive, or exemplary damages, on account of the termination of this Agreement in accordance with Sections 3 or 12, even if they are aware of the possibility of such damages. For example, neither CLARE nor DEALER will be liable to the other on account of such termination for reimbursement or damages for the loss of goodwill, business opportunity, prospective sales, income, compensation, or profits, expenditures, investments, leases, or commitments made by either CLARE or DEALER, or for any other reason whatsoever based upon or arising out of such termination. DEALER acknowledges and agrees that DEALER has no expectation and has received no assurances that its business relationship with CLARE will continue for any particular period, or that any investment by DEALER will result in any anticipated amount of sales, income, compensation, or profits by virtue of this Agreement.
- CLARE’S failure to terminate any other DEALERS or to require that they satisfy any performance requirement shall not operate as a waiver by CLARE of the right to require DEALER to satisfy all its obligations under this agreement, nor shall it operate as a waiver of Clare
- Controls’ right to terminate DEALER for any breach of this agreement.
- The terms of Sections 1, 12 through 16, and 20 through 23 shall survive the termination of this Agreement.
- Notwithstanding termination of this agreement and termination of DEALER’S rights under this agreement, CLARE shall have the option of continuing its interactive service with DEALER’S customers and shall be permitted to refer the customers to other authorized DEALERS. The termination of this agreement shall terminate all DEALER’s agreements with its customers using Clare Control’s interactive services. Referring the customers to another DEALER in the event this agreement is terminated shall not be deemed a breach of the confidentiality provisions of this agreement
- As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, software source code and specifications, business and marketing plans, technology, technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) is known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission.
- Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
- If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
- If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in violation of this Section, the Disclosing Party shall have the right, in addition to any other remedies available to it, to preliminary and permanent injunctive relief, without bond, to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies at law are inadequate.
- Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may include the name and logo of the other party in its lists of customers or vendors.
Neither this Agreement, nor any rights or duties under this Agreement, may be assigned or delegated, directly or indirectly by operation of law or otherwise, by DEALER without the prior written consent of CLARE, which consent shall not be unreasonably withheld.
19. Force Majeure.
Except for the payment of any amounts due under this Agreement or any purchase orders, neither party shall be considered in default in the performance of its obligations under this Agreement if prevented or delayed from such performance by any cause, existing or future, which is beyond the reasonable control and without the fault or negligence of that party, including, but not limited to, insurrections, riots, wars and warlike operations, explosions, governmental acts, epidemics, failure of contractors or subcontractors to perform, strikes, fires, floods, hurricanes, import quotas, punitive duties, accidents, acts of any public enemy, embargoes, blockades, or inability to obtain required materials, qualified labor, or transportation. The parties shall use their best efforts to avoid, remove, or cure any such event of force majeure. Any party temporarily excused from its performance under this Agreement by any such circumstances shall resume performance with utmost dispatch when such event of force majeure is avoided, removed, or cured.
All notices which are required or permitted under this Agreement must be in writing and shall be deemed to have been given, delivered, or made, as the case may be (notwithstanding lack of actual receipt by the addressee), (i) when delivered by personal delivery, or (ii) ten (10) business days after having been deposited in the United States mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (iii) six (6) business day after having been deposited with an expedited, overnight courier service (such as by way of example, but not limitation, U.S. Express Mail, Federal Express, or Airborne), addressed to the party to whom notice is intended to be given at their address first set forth above. Either party may change the address to which its notices are sent by giving the other party written notice of any such change in the manner provided in this Section, but notice of change of address is effective only upon receipt.
21. Applicable Law.
This Agreement shall be governed in its construction, interpretation, and performance by the laws of the State of Florida, without reference to law pertaining to choice of laws or conflict of laws. In the event of any litigation arising out of or relating to this Agreement or the breach, termination, validity, or enforcement of this Agreement, venue shall be in the Twelfth Judicial Circuit in and for Sarasota County, Florida, or the Tampa Division of the United States District Court for the Middle District of Florida, as applicable, and the prevailing party shall be entitled to recover all costs and reasonable attorneys’ fees incurred, including, without limitation, costs and attorneys’ fees incurred in any investigations, trials, bankruptcies, and appeals. DEALER AGREES THAT DEALER MAY BRING CLAIMS AGAINST COMPANY ONLY IN DEALER’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT THE OPTION OF ANY PARTY, BE DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY ARBITRATION SERVICES INC., ITS SUCCESSORS OR ASSIGNS, PURSUANT TO ITS ARBITRATION RULES AT WWW.ARBITRATIONSERVICESINC.COM AND THE FEDERAL ARBITRATION ACT, EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES MAY BE AWARDED. The arbitrator shall be bound by the terms of this agreement and is authorized to conduct proceedings by telephone, video, submission of papers or in-person hearing in the state of Florida. By agreeing to this arbitration provision the parties waive their right to a jury trial, waive the right to appeal the arbitration award and waive the right to participate in a class action. This agreement to arbitrate shall survive the termination of this agreement. Service of process or papers in any legal proceeding or arbitration between the parties may be made by First-Class Mail delivered by the U.S. Postal Service addressed to the party's address in this agreement or another address provided by the party in writing to the party making service. The parties waive trial by jury in any action between them unless prohibited by law. Any action between the parties must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings by either party must be based on the provisions of this agreement. Any other action that DEALER may have or bring against CLARE in respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement
No failure or delay on the part of either party in exercising any right or remedy with respect to a breach of this Agreement by the other party shall operate as a waiver thereof or of any prior or subsequent breach of this Agreement by the breaching party, nor shall the exercise of any such right or remedy preclude any other or future exercise thereof or exercise of any other right or remedy in connection with this Agreement. Any waiver must be in writing and signed by the waiving party.
If any section, subsection, or provision or the application of such section, subsection, or provision of this Agreement is held invalid, illegal, or unenforceable, the remainder of this Agreement and the obligation of such section, subsection, or provision to persons or circumstances other than those to which it is held invalid, illegal, or unenforceable shall not be affected by such invalidity, illegality, or unenforceability.
This Agreement shall not be construed more strictly against any party regardless of who is responsible for its drafting. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular and the singular include the plural. Wherever the context so requires, the masculine shall refer to the feminine, the feminine shall refer to the masculine, the masculine or the feminine shall refer to the neuter, and the neuter shall refer to the masculine or the feminine. The captions of this Agreement are for convenience and ease of reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any of its provisions.
25. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, and permitted assigns.
26. Entire Agreement.
This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. All prior understandings and agreements between the parties relating to the subject matter hereof are merged in this Agreement, which alone and completely expresses their understanding. This Agreement may not be altered, amended, or changed except by written instrument signed on behalf of each of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or caused this Agreement to be executed by their duly authorized representatives, as of the Effective Date.
DOC ID: 047-Rev17