This Agreement (“Agreement”) is made Date of Agreement_(ARC Auto Fill)_
between American Ratings Corporation (“ARC” or “Certifier”), a California corporation, and Company your company.
A. Whereas ARC, the Certifier, owns rights in the certification mark, HealthSafety QualifiedTM , the HealthSafety Qualified symbol, and the service mark “Only the Best Pass the Test® herein after collectively referred to as the “Marks” for certification of a company’s safety training and testing; and
B. The Marks represent to potential customers that a HealthSafety Qualified (HSQ) company has satisfied certain predetermined criteria; and
C. Award and use of the Marks by a HSQ company is of substantial value to such company.
ARC and Company agree as follows:
1. Certification. The Certification granted herein allows Company to use the Marks, ARC Research Reports and ARC Editorial Content, in accordance with the terms of this Agreement.
2. Fees and Terms of Payment. The term of this Agreement, begins on the date Company qualifies for HSQ and continues until terminated pursuant to paragraph 12, below (the “Term”). The Company hereby promises to pay ARC: (a) a one-time Initial Rating Fee as indicated on their signup (the “Initial Rating Fee”) and, (b) if the Company qualifies to be HSQ, a certification fee level selected by Company in Choose Your Plan (the “Certification Fee”) and, (c) an Add On Advantage fee selected by Company per month for each month that this Agreement is in effect, payable monthly in advance. ARC reserves the right to change its Certification fees no more than once per year. ARC will notify Company of any fee change 30 days prior to enactment.
3. Application and Rating Process. After Company completes HSQ training, testing and additional rating requirements, Certifier shall determine, in its sole discretion, whether Company satisfactorily meets all of the standards necessary to become HSQ and shall notify Company of its determination. Should Company fail to earn HSQ during the Initial Rating Process, no Certification Fees will be due and Company shall not have the right to use the Marks and display the ARC Research Report.
4. Updated Requirements. From time to time requirements to maintain HSQ will be updated and changed. Company agrees that is will adopt these updated requirements including changes to its stocking and usage of Personal Protective Equipment and safety supplies. Furthermore Company agrees it will follow updated HSQ requirements, including completing additional training and testing should these be required.
5. Audit and Challenges. Individuals related or unrelated to the Company may observe the Company or its workers failing to follow HSQ requirements and report these alleged infractions to ARC (Challenge). In the case of a Challenge ARC may conduct an Audit of the Company’s knowledge of and adherence with HSQ requirements. Depending on the circumstances of the Challenge, during this Audit ARC may choose one or all of the following Audit steps: a) to assign additional Company training and testing to the Company, b) interview Company workers, c) conduct short customer surveys to help determine whether the allegations described in the Challenge were observed by a sample of Company customers, or d) another method not referred to here that helps determine whether Company is required to take any remedial actions. Should an Audit be requested by ARC, Company agrees to assist ARC in all aspects of its Audit, including supplying ARC with up to 20 recent customer names and phone numbers to be used as part of a customer survey. Certifier agrees to keep confidential all personally identifiable customer information disclosed to it by Company.
6. Failure to Maintain Requirements for HealthSafety Qualified. Throughout the Term, Certifier shall evaluate, in its sole discretion, whether Company is successfully maintaining the standards required to be HSQ. Should the Company fail to maintain HSQ standards during the Term, this Agreement will be terminated pursuant to paragraph 12, below.
7. Limit of Liability. Certifier and Company agree that, as material consideration for Certifier’s entering into this Agreement, Certifier’s maximum liability for any breach of this Agreement shall be limited to fees actually paid by Company for the term in which the claimed breach occurred.
8. No Warranty or Guarantee. No warranty or guarantee is expressed or implied regarding what if any impact HSQ will have on the sales or business of the
9. Miscellaneous.
Company agrees to indemnify and hold Certifier and its officers, directors, employees and affiliates harmless against any and all claims or demands of customers or other persons for injury to or death of persons or loss of or damage to property resulting from any negligence, willful misconduct, carelessness, wasted time, incompetence, dishonesty, faulty equipment or workmanship or anything else alleged on the part of Company, its employees or agents; Company shall defend Certifier and its officers, directors, employees affiliates from all such claims or demands and for all losses suffered by them as a result thereof.
b. Company agrees that it is an independent Company and not an agent or employee of Certifier and Certifier does not have nor shall it exercise any right of control as to the personnel, manner, methods or means employed by the Company in the rendering of services.
c. Company must pay all fees due Certifier within 30 days after such fees are due. Should Company fail to do so, Certifier at its option, may terminate this Agreement pursuant to paragraph 12, below. Notwithstanding the termination of this Agreement as described herein, Company shall remain bound by the terms of this Agreement. Additionally, Certifier may, in its discretion, add late charges of $25 per month and interest up to the maximum rate allowed by law and exclude Company from HSQ’s website.
d. Certifier may assign its rights and responsibilities under this Agreement at any time to another party without notice to Company.
e. Company may not assign its rights and responsibilities under this Agreement at any time to another party without the written consent of Certifier. If Company assigns its rights and responsibilities under this Agreement to another party the Company will remain responsible for all fees incurred prior to the date of the assignment and the party receiving the assignment will be responsible for all fees incurred after the date of the assignment.
f. Company agrees to participate in good faith to resolve customer disputes in HSQ Mediation whenever requested by the Certifier. If the Company is suspended or terminated at the time of request, the Company agrees to Mediate in good faith towards a resolution.
g. If Company does not qualify to be HSQ they remain bound by the terms of this Agreement.
10. Attorney Fee/Venue.
In the event of commencement of a lawsuit by either party to enforce the provisions of this Agreement, the prevailing party shall be entitled to receive attorneys’ fees and costs in addition to any other relief granted. The Certifier incurs its obligations and performs its duties in the County of Marin, State of California. In the event that legal action is undertaken to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction in the County of Marin, California in accordance with California Code of Civil Procedure section 395 (a) or in the United States District Court for the Northern District of California.
11. Certifier’s Trademarks and Property Rights.
a. Company recognizes Certifier’s property rights in and to the Marks, the terms HealthSafety QualifiedTM, Only the Best Pass the Test®, American Ratings Corporation and the HealthSafety Qualified logo, and agrees that it will not perform any act in derogation of such rights, nor permit others engaged in the distribution, merchandising, performance or production of the service, to do so. If such others perform such acts, the Company agrees that it will take all reasonable steps requested by Certifier to prevent the continuance of such acts.
b. During the term of this Agreement Company may submit photographs or recordings of individuals to ARC and contribute interviews, blog and bulletin posts and other editorial content (ARC Editorial Content). The ownership and use of such photographs, recordings and Company editorial contributions as well as all, “ARC Created Work Product” shall be governed by this Agreement and the “American Ratings Corporation Photo and Work Product Release Form” (the “ARC Release”) located at www.healthsafetyqualified.com (the “Website”), which is incorporated herein by reference, the terms of which may be changed from time to time without notice to Company. Company agrees that it shall have each identifiable individual in such photographs and recordings agree to the terms of the ARC Release on the Website prior to submitting such photographs or recordings to ARC.
12. Cancellation/Termination.
a. If the Company violates this agreement or fails to maintain the Certifier’s standards the Certifier may terminate this Agreement by providing the Company with a “Final Notice of Termination.” Certifier shall determine in its sole discretion whether the Company is meeting standards and whether any violation of the Agreement has occurred.
b. In the event of termination for any reason, any and all rights of Company to express, exploit, use or refer to the Marks, ARC Research Reports and ARC Editorial Content including, describing whether or not Company had earned HSQ in the past, are terminated.
c. In the event of termination for any reason, Company shall:
i. Immediately cease using the Marks, ARC Research Reports and ARC Editorial Content in any media, signage, websites, etc.;
ii. Notify all of its employees and independent contractors to immediately cease use of the Marks and to not disclose that Company had earned HSQ at any time;
iii. Surrender the possession of all signs, brochures, labels, certificates or other information referencing the Marks or any other Certifier term by immediately returning the same to Certifier, shipping charges if any to be paid by the Company;
iv. Within ten (10) days after receipt of the “Final Notice of Termination”, at its own cost and expense, remove, efface and discontinue the use or display of any sign, insignia, symbol, emblem or other device or matter of any character on its building, its appurtenances, vehicles, equipment, invoices, stationery, business cards, upon any signboards, on the Internet, or other advertising devices or publications and broadcast, cable television and radio, indicating expressly or by implication that said business is or ever was a Certified Company of Certifier, or has any connection or affiliation with Certifier or its affiliates, or is a representative thereof in any charge or capacity under the terms of this Agreement or otherwise; and Notify any Yellow Pages provider, website or search engine to delete the Marks and the ARC Editorial Content or any mention of the Certifier program from its display to users. The Company hereby appoints, authorizes and consents to Certifier as its agent for the limited purpose of fulfilling the requirements set forth in this subsection c. at the sole cost and expense of Company. Company is required to comply with the requirements set forth in this subsection c. and Certifier will exercise its authority as agent only upon the failure of Company to comply with such requirements within ten (10) days after receipt of the “Final Notice of Termination”.
d. In the event Company makes any unauthorized reference to Certifier, or in any other manner binds or obligates Certifier in violation of the terms of this Agreement, the Company agrees to indemnify Certifier against all damages suffered, and to reimburse Certifier to the extent of such damages—including but not limited to all refunds or the value of all replacements made to consumers resulting from such an act on the part of the Company. Additionally, Company agrees that unauthorized references to the Marks or Certifier or continued use of the ARC Editorial Content would cause Certifier substantial damages as referenced in 12(g) below.
e. Company may terminate this Agreement for any reason, at any time, upon 30 days written notice to Certifier. This written notice must be sent by using the HSQ Company Termination Notice Form in the HSQ Company Portal within the HSQ Website. Company must retain the date stamped HSQ Termination Confirmation Email that is produced through this form process. No claim of termination of this Agreement shall be accepted without this confirming email. Upon completing this form if Company does not receive a confirming email within 10 minutes, it should call 800-xxx-xxxx ext. xxx for assistance.
f. In the event of any termination of this Agreement, Company’s maximum certification fee liability shall be the prorated fees owed to Certifier from the beginning date of this Certification until (i) the date of termination if terminated by Certifier, or (ii) until 30 days after the date that the termination letter is received by Certifier if terminated by Company. Certification Fees already paid under this Agreement shall be credited to Company in calculating the final certification-related payment due.
g. Company understands and acknowledges that Certifier has exclusive rights to the Marks, ARC Research Reports and ARC Editorial Content, and that improper use of any of these in violation of the terms of this Agreement will cause Certifier irreparable harm, the amount of which may be difficult to ascertain. Company agrees to pay Certifier liquidated damages of $200 per day for improper usage of any of these. Furthermore, Certifier shall have the right, but not the obligation, to apply to a court of competent jurisdiction for an order restraining any such further misuse or misappropriation and for such other relief as Certifier may deem appropriate. Such right of Certifier is to be in addition to any other remedies available to it at law or in equity.
13. Severability.
If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance, shall to any extent be held to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
14. Non-Waiver.
The waiver by Certifier of any default in the performance by Company of any covenant contained herein shall not be construed to be a waiver of any preceding or subsequent default of the same or any other covenant contained herein.
15. Entire Agreement.
This Agreement and the ARC Release as amended from time to time set forth the entire agreement between the parties. If there is any conflict between the terms of this Agreement and the ARC Release then the terms of this Agreement will Control. Except as specifically set forth herein, there are no agreements, representations or warranties as to any matter. No subsequent amendment to this Agreement shall be binding upon the parties unless in writing and signed by them.
