PART III: Participation Agreement
Energy Star® Certified Homes HVAC Credentialing Program – Terms and Conditions. Please read and electronically sign the following participation agreement.
The below agreement is a legally-binding contract that is required of all program members. The agreement outlines the do’s and don’ts of working in our program and includes details on procedures, fees, and other aspects of our program that should be reviewed by the Owner/Operator of your company before signing.
Please pay close attention to the following information when reviewing the agreement:
ENERGY STAR® requires that you retain your paperwork for the HVAC Design Report and the HVAC Commissioning Checklist as long as you remain a credentialed contractor. A random audit may be performed at Advanced Energy’s discretion.
NORTH CAROLINA ADVANCED ENERGY CORPORATION
ENERGY STAR® H-QUITO Credentialing Program for HVAC Contractors Participation AGREEMENT
THE FOLLOWING TERMS AND CONDITIONS, WHEN ACCEPTED BY YOU (WHETHER AS AN INDIVIDUAL, OR IF APPLICABLE, ACTING AS THE AUTHORIZED LEGAL REPRESENTATIVE FOR AN ENTITY OR COMPANY) AND NORTH CAROLINA ADVANCED ENERGY CORPORATION, A NORTH CAROLINA NOT FOR PROFIT CORPORATION, (REFERRED TO IN THIS AGREEMENT AS “ADVANCED ENERGY”) SHALL, ALONG WITH THIS COVER PAGE, CONSTITUTE THE ENERGY STAR® H-QUITO CREDENTIALING PROGRAM FOR HVAC CONTRACTORS PARTICIPATION AGREEMENT (THE “AGREEMENT”). PLEASE READ THIS AGREEMENT CAREFULLY. BY ENTERING YOUR NAME AND CLICKING ON THE “I AGREE” BUTTON BELOW, YOU (OR THE PARTY YOU ARE AUTHORIZED TO REPRESENT) WILL BECOME A PARTY TO, AND WILL BE BOUND BY THIS AGREEMENT. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “I AGREE” BUTTON BELOW. IF YOU DO NOT AGREE, INDICATE YOUR DECISION BY CLICKING ON “CANCEL” AND YOU WILL BE RETURNED TO THE HOME PAGE OF THIS WEB SITE.
ENERGY STAR® H-QUITO Credentialing Program for HVAC Contractors Participation Agreement by and between:
North Carolina Advanced Energy Corporation
909 Capability Drive, Suite 2100
Raleigh, North Carolina 27606-3870
and
Company Name: ___________________________________ (“Member”)
Address 1: ________________________________________
Address 2: ________________________________________
City, State, Zip: _____________________________________
TERMS AND CONDITIONS
1. Term and Termination. This Agreement shall commence on the Effective Date and continue until terminated in accordance with its terms. Either party may terminate this Agreement immediately without cause upon written notice to the other party.
There is a $50 fee for terminating your application in the first 3 days of registration. After 3 days, the fee is non-refundable.
2. Credentialing Program
(a) Advanced Energy is offering the Environmental Protection Agency (“EPA”) H-QUITO program (“Program”) to HVAC contractors. The key objective of this Program is to credential HVAC contractors to perform quality HVAC installations in the ENERGY STAR Certified New Homes Program. In cooperation with the U.S. Environmental Protection Agency, Advanced Energy is charged with training, providing oversight, and performing quality assurance for HVAC contractors participating in the Program.
(b) Members will be trained on ENERGY STAR Certified New Homes Program specifications and requirements, as well as the requirements of the Program.
(c) Member must agree to and comply with the Program Policies and Procedures as described in the attached Exhibit A.
(d) Advanced Energy reserves the right to make changes as needed to the terms and conditions of this Agreement at any time and for any reason including changes to the Program upon written notice to Member.
(e) In the event that Member provides Advanced Energy with any proprietary HVAC design files used by Member, Advanced Energy will not disclose such files to any third party and will use such files solely as necessary for Advanced Energy to perform its obligations under this Agreement.
3. Relationship of Parties.
(a) Member shall perform its obligations hereunder as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between Advanced Energy and Member. Member shall not take any action or permit any action to be taken on its behalf, which purports to be done in the name of or on behalf of Advanced Energy. Member shall not, in any sense, be considered an employee or agent of Advanced Energy. Member shall not be eligible or entitled to any benefits, perquisites or privileges given or extended to Advanced Energy employees. Member shall indemnify and hold Advanced Energy harmless from all losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees) arising in connection with any claim, suit or proceeding alleging that Member has a relationship with Advanced Energy that is other than an independent contractor relationship.
(b) Member represents and warrants that all services performed by it pursuant to this Agreement shall be conducted in full compliance with any and all applicable federal, state and local laws, rules, and regulations. Member shall obtain and maintain all necessary permits, certificates and applicable licenses.
(c) Member represents and warrants that Member is solely responsible for the payment of all contributions, compensating use, transaction taxes, sales taxes, payroll taxes or assessments, state or federal, as to Member and all employees of Member levied or assessed as a consequence of the services performed pursuant to this Agreement.
4. Fees for Services.
(a) Each Member that is new to the Program shall pay Advanced Energy a one-time nonrefundable new member fee of $900 per company location, as listed on their application. Each location must be listed separately on the application. In addition to the one-time fee set forth above, on each annual anniversary of the date on which Member joined the Program, the Member will pay an annual fee in advance of $600.
(b) For Members currently in the Program, the Member will pay an annual fee of $600. This fee is nonrefundable and is due on each annual anniversary of the date on which Member joined the Program.
The one-time fees due under Section 4(a) are due upon submittal of Member’s application. Failure of Member to pay any fees pursuant to the terms and conditions herein within 30 days of invoice shall be deemed to be a material breach of this Agreement and Advanced Energy in its sole discretion may terminate the Agreement. Advanced Energy may change the fees set forth herein with not less than thirty (30) day’s notice to Member.
(d) Advanced Energy may change the fees set forth above at any time by providing written notice to Member not less than thirty (30) days prior to the effective date of the new fees.
5. Indemnification, Insurance and Limitation of Liability.
(a) The services to be performed by Member pursuant to this Agreement and in connection with the Program shall be performed entirely at Member’s risk, and Member assumes all responsibility for all acts of Member and the acts of Member’s agents, employees and subcontractors, while engaged in the performance of services pursuant to this Agreement and in connection with the Program. Member shall indemnify, hold harmless and defend Advanced Energy from any claims, liabilities, loss, costs, and expenses (including court costs and attorney’s fees) arising directly or indirectly from the Member’s conduct, acts, or omissions.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES RELATED TO, OR AS A RESULT OF, THIS AGREEMENT INCLUDING LOSS OF PROFITS. IN NO EVENT SHALL ADVANCED ENERGY BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS OR DAMAGES RELATED TO, OR AS A RESULT OF, THIS AGREEMENT EXCEEDING THE AGGREGATE AMOUNT RECEIVED FROM MEMBER DURING YEAR IN WHICH THE CLAIM AROSE.
6. Successors. This Agreement may not be assigned by Member (whether by change of control or operation of law).
7. Waiver. The failure of a party to enforce any provision of this Agreement shall not constitute a waiver of such provision or the right of such party to enforce such provision and every other provision.
8. Notice.
(a) Any notices, invoices or consents pursuant to this Agreement shall be in writing and shall be sent to the parties at the following address or at such other address as shall be specified by the parties:
If to Member: To the address listed on the cover page of this Agreement
If to Advanced Energy:
North Carolina Advanced Energy Corporation
909 Capability Drive, Suite 2100
Raleigh, North Carolina 27606-3870
Attention: Vice President, Administration
(b) Such notices, consents or other communications shall be deemed to have been duly given and received (i) on the day of sending if sent by personal delivery, email, or facsimile (ii) on the next business day after the day of sending if sent by FedEx or other similar express delivery service, or (iii) when delivered, if sent by registered or certified mail (return receipt requested).
9. Governing Law; Disputes. This Agreement will be governed by the laws of the State of North Carolina without regard to its conflicts of law provisions. Any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. § 1-569.1 et seq. (the “Uniform Arbitration Act”) and the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any party.
10. General.
(a) Sections 3, 5, 8, 9 and 10 shall survive the expiration or earlier termination, for any reason, of this Agreement.
(b) This Agreement and the Exhibits constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications, written or oral, with respect thereto. This Agreement may be changed at any time by Advanced Energy in its sole discretion. In the event that Advanced Energy changes this Agreement, Advanced Energy will notify Member via email of the change and publish the revised Agreement – with an updated Effective Date – to the web site located at [Advanced Energy to include link to Agreement]. Member may in its sole discretion elect to terminate Member’s participation in the Program or Member may choose to continue in the Program, in which case, Member is deemed to have agreed to the terms of the revised and updated Agreement. In the event that Member does not agree to the terms of the revised and updated Agreement, Member’s sole recourse is to terminate Member’s participation in the Program.
Exhibit A
Program Policies and Procedures
The Program will provide the following services and support to Member:
• Access to training courses and supporting resources.
• Oversight according to the EPA’s and the Program’s mandated requirements.
• Quality assurance services as needed to support the design, installation commissioning of HVAC jobs to ENERGY STAR’s standards.
• Technical assistance as needed.
• The right to use Program marketing materials in accordance with the Program criteria provided.
Member agrees to play an active role in the Program by performing quality installations of ENERGY STAR HVAC jobs. As a condition of participating in the Program and accessing the Program benefits, the Member agrees to the following:
I. Program Participation.
Member acknowledges that Advanced Energy may suspend or terminate Member’s participation in the Program for any reason, including failure to comply with an audit and produce the necessary paperwork.
Member shall not employ as a subcontractor any firm that has been suspended or terminated from this Program without prior written permission of Advanced Energy.
II. Program Compliance and Requirements.
a. Member shall meet the standards of the ENERGY STAR Certified New Homes program and Advanced Energy’s credentialing Program and provide proof of the same to Advanced Energy.
b. Member shall maintain credentialed status for at least one (1) employee who supervises the design, install, and startup functions of Member’s ENERGY STAR Certified New Homes program jobs during the life of Member’s involvement in the Program.
c. Member shall ensure that credentialed personnel supervise all jobs performed under the Program regardless of whether or not the work is performed by the Member’s employees or by a subcontractor, and that the credentialed personnel are on-site if and when the home is inspected by Advanced Energy or its representative.
e. Member must notify Advanced Energy within 30 days of a change in status of Program credentialed staff and shall use all reasonable efforts to replace such staff person with another Program credentialed employee within 60 days.
f. Member shall comply with current Guidelines for Using ENERGY STAR and Program Marketing Graphics, which describe how the ENERGY STAR and Program marks, marketing graphics, and name may be used.
g. Member shall always use an EPA-approved HVAC sizing software program or equivalent procedure, as defined by the ENERGY STAR® program, for performing sizing calculations. If the Member subcontracts the performance of sizing calculations to another firm, a review of the files by the Member is required to ensure compliance with the ENERGY STAR and Program requirements and specifications.
h. Advanced Energy, in its sole discretion, may require continuing education credits to be obtained by Member in order for Member to continue its participation in the Program. In the event Advanced Energy implements a continuing education credit requirement, Member will be given not less than ninety (90) days’ notice of the continuing education requirements as well as an opportunity to obtain the requisite credits within the 90-day period.
-If selected for an audit, member must submit all inspection paperwork to specifications and requirements provided by Advanced Energy;
-Member will at all times cooperate with Advanced Energy so that Advanced Energy can determine whether Member is fulfilling its obligations under the ENERGY STAR Certified New Homes program.
j. Termination: Member will be terminated from the program if reoccurring intervention is required due to ongoing inaccuracies and blatant disregard for Program policies. Once terminated, Member’s name will be permanently removed from the list and no future projects will be referred. Member will no longer be authorized to use the Program branding. In the event of termination, no refunds of any fees paid under this Agreement will be provided.
IV. Program Activity.
a. Member shall, for every ENERGY STAR job, complete and retain the ENERGY STAR HVAC Commissioning Checklist and the HVAC Design Report (if not completed by a Designer), as required by the EPA and/or the Program.
V. Business Practices.
a. Members shall treat Program clients in a professional manner and attempt in good faith to deliver promised services in a timely and responsible manner.
b. Member shall properly represent the relationship of the Member to the Program to all third parties, this relationship being that the Member is an independent contractor, with Program credentialed staff, and a participant in the Program. Member shall NOT represent itself as working for, approved by, or certified by, U. S. Department of Energy, U.S. Environmental Protection Agency, Advanced Energy or the local utilities and/or local municipalities without appropriate authorization.
c. Member shall maintain any applicable licenses required by the Program and federal, state, county or municipal governments or any other agencies with jurisdiction over work performed in the Program.
d. Member must maintain as a matter of record, insurance certificates for all subcontractors used by Member on all Program projects.
e. Members shall provide all Program customers with required information materials.
f. Member must address all customer disputes regarding work performed in the Program by first working with the customer to resolve the dispute amicably. If such attempt does not produce an outcome acceptable to the customer then Member shall settle the dispute through Member’s customer complaint resolution process. If necessary, homeowners can file a formal complaint with the state’s Registrar of Members.
g. Member agrees to indemnify, defend and hold harmless U.S. EPA, U.S. DOE, participating utilities, participating municipalities and Advanced Energy harmless from any suit, claim, loss or damages arising from Member’s work in the Program.
h. Member shall recognize that direct marketing to the consumer is not a primary focus of the Program and that the Program makes no guarantee that leads will be provided to Member.
VI. Client Complaint Strategy.
As the Program sponsor, Advanced Energy along with a designated third party entity such as a representative from utility local rating of HVAC organization or company will review consumer complaints as they arise. However, neither Advanced Energy nor its third party representatives accept responsibility for work performed by Member or the resolution of any dispute between Member and a Member client.
If a complaint should arise the first course of action is for Advanced Energy to notify Member of the complaint. The Member will have the opportunity to work with the client to rectify the situation. Member shall have 10 business days to rectify the situation in a manner satisfactory to the client and within the Program guidelines.
If client and Member are unable to come to a satisfactory agreement, Advanced Energy and its third party representative will review the case and make an informal recommendation to both parties. This informal recommendation is not a legal recommendation and is only meant to be a suggestion.
The Program reserves the right to suspend Member from participation in the Program based on poor performance and/or unresolved consumer complaints.