This Dealer Agreement (“Agreement”) is made between Dealer and Global Surveillance Systems, Inc., a Virginia corporation with its principal offices located at 14325 Willard Road, Suite 106, Chantilly, Virginia 20151 (“Seller”).
WHEREAS, Seller has the right to distribute certain goods (the “Product(s)”) that Dealer desires to resell.
NOW, THEREFORE, in consideration of the mutual covenants, promises, agreements, representations and warranties contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby covenant, promise, agree, represent and warrant as follows:
1.PURCHASE OF PRODUCT. All purchases of Product are made and orders are accepted only upon and subject to the terms and conditions contained in this Agreement, which supersede and replace all prior terms, conditions, proposals or quotations exchanged by the parties. Any additional or different terms already or hereafter proposed by Dealer are objected to by Seller without need of further notice of objection, and will not be binding upon Seller unless specifically agreed to in writing, signed by Seller. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Seller shall be subject to correction without any liability on the part of the Seller. Seller is not under any obligation to accept any order for Products. An order is accepted by Seller when shipped or when it is acknowledged by Seller, whichever occurs first.
2.PRICE. The price for any Product requested by Dealer is equal to the price listed on the then current dealer listing of prices or quotations provided by Seller to Dealer. Seller may update the listing of prices at any time and from time to time. Any change in price shall be effective upon submission of the updated price listing to Dealer either through emails or updated GSS dealer price information at the Seller website;; provided, however, that no change in prices shall be effective with respect to any orders of Dealer already accepted by Seller. Dealer shall also be responsible for paying any applicable sales tax (unless Dealer provides any applicable reseller exemption certificate) or excise duties paid or payable by the Seller or Dealer and any applicable shipping costs, the cost of such taxes, duties and shipping may be added, as applicable, to the price of any Product ordered.All orders are shipped FOB Chantilly, VA. Price does not include shipping or insurance charges.
3.DELIVERY BY THE SELLER. Delivery of any Product is subject to the performance of the applicable manufacturer and Dealer cannot hold Seller accountable for any delay. Seller will promptly notify Dealer of any material delay and will specify a revised delivery date as soon as practicable. In the event of any such delay, this Agreement will not be terminated and the date of performance will be extended for a period of time equal to the period of the delay. Seller reserves the right to make partial shipments, and each shipment will be invoiced separately. All orders shipping outside of the United States/Canada require full payment, in advance, via a TT wire transfer.
4.ACCEPTANCE OF PRODUCT. On delivery, the Dealer shall examine the Product for defects and completeness. Product shall be deemed accepted by Dealer unless Dealer notifies Seller of any claim for damage in transit or shortage in delivery or that any Product does not conform to applicable specifications within ten (10) days from the time of delivery. Dealer may also return any undamaged or unused Product for a full refund, less a 20% restocking fee provided that Dealer notifies Seller of a request to return the Product within thirty (30) days from the time of delivery, returns the Product pursuant to instructions then provided by Seller and pays for the cost of shipping and insurance to return the Product to Seller. No future orders for Product will be shipped until any applicable restocking or other fees are paid
5.TITLE TO PRODUCT, RISK OF LOSS AND INSURANCE. Title to all Product purchased hereunder shall be retained by Seller until all of such Product is paid for in full by Dealer. Risk of loss of any Product shipped by Seller pursuant to this Agreement shall pass upon delivery of such Product to a carrier selected by Seller. Dealer may, at its option and by notifying Seller prior to shipment, arrange for insuring the Product against loss or damage incurred during shipment.
6.PAYMENT OF PURCHASE PRICE, SECURITY INTEREST AND TAXES. Seller shall invoice Dealer for any Product purchased hereunder. Dealer agrees to pay all or a portion of the purchase price upon shipment of any Product ordered hereunder except as may otherwise be agreed to in writing between Seller and Dealer. Dealer grants Seller a security interest in all Products sold hereunder as security for the performance by Dealer of all its obligations under this Agreement. Unless Dealer pays for the entire purchase price and any other charges upon ordering Product hereunder, Seller may request that Dealer execute a financing statement, security agreement, or any other document reasonably requested by Seller in order to perfect the security interest of Seller in the applicable Product. Seller may also file a copy of this Agreement as a financing statement to perfect any such security interest. If any check, negotiable instrument, or credit line of Dealer is returned or rejected for any reason, the Seller for each such event will impose a $35 service charge. Past due accounts are automatically placed on C.O.D. cash/cashier’s check and all shipments are withheld until the account is brought current. In the event of legal action by Seller to collect any sum due on account or enforce any term or condition of this invoice, Dealer agrees to pay all of Seller’s expenses of collection, including court costs and reasonable attorney’s fees. Dealer agrees to pay interest at a rate of 2.0% per month (24% per annum) on any portion of the purchase price or any other amount, including for insurance or shipping, not timely paid to Seller hereunder.
a. CREDIT CARD PAYMENTS: GSS will accept credit card payments for pre-pay orders only. Customers who have a payment terms agreement with GSS, agree to pay their balance by check on the due date on each invoice.
b. PAYMENT TERMS AGREEMENTS: A Dealer, who has been approved for payment on terms, agrees to meet the requirements set forth in our Payment Terms Agreement. Once payment terms are approved, customers are responsible to stay within the maximum balance amount that is extended in the agreement. If a Dealer places an order while they are over their limit, or while they have an overdue balance, GSS reserves the right to refuse to place future orders until the account is in good standing.
7.SUPPORT SERVICES. Dealer can send emails to support@gssdvr.com for the purpose of enabling Dealer to report problems and seek assistance regarding configuration of any Product sold hereunder during the Warranty Period (defined below in Section 8) applicable with respect to such Product. Seller will do its best to respond the emails within 1-2 business days. Dealer can procure expanded support services or specific maintenance tasks for an additional charge upon terms and conditions agreed to by Seller.
8.LIMITED WARRANTY, DISCLAIMER AND LIMITATION OF REMEDIES.
A. Limited Warranty. (1) Warranty. Seller provides limited product warranty to Dealer that for a period of time from the date of invoice of any Product sold hereunder (the “Warranty Period”), said Product shall be free of defects in materials and workmanship. The duration of the product warranty period will be offered and determined by Seller and Seller’s manufacturers. Seller’s sole obligation, and Dealer’s exclusive remedy, for any defect in materials or workmanship, shall be to cooperate with Dealer to provide Dealer with the benefit of any warranty commitment of the applicable manufacturer in repairing, replacing or issuing a credit for any defective Product. Dealer can procure an expanded Warranty Period for an additional charge upon terms and conditions agreed to by Seller at the time of Product sale. The foregoing warranty shall not apply in the event that Dealer, or the applicable end-user, has altered the Product or taken any other action to void the warranty as determined pursuant to the applicable policies of the manufacturer and Seller. (2) Procedure in the Event of a Warranty Claim. In the event that Dealer makes a claim that any Product is defective, then the following procedures must be fully complied with: (a) Dealer must notify Seller in writing in sufficient time for Seller to notify the applicable manufacturer in writing as to any such claim prior to expiration of the Warranty Period and (b) Seller shall then provide a return merchandise authorization (“RMA”) to Dealer who will then use the RMA in returning the defective Product to Seller. The defective Product shall then be shipped to Seller in it original packaging, with all accessories, and with the RMA number and RMA form (supplied by Seller). If the Product is not actually covered by the applicable warranty, then Seller shall return the Product to Dealer at Dealer’s cost for insurance and shipping and a $100 processing fee for each such Product. Seller will not accept any return that does not meet the above requirement and will not accept any Product returned in abused or altered condition.
B. Software. Dealer acknowledges that Product sold by Seller hereunder includes application and driver software that must be installed for the Product to work (hereinafter all of such software is referred to as the “Software”). The Software is not error free and Dealer agrees that the existence of any such error or errors shall not constitute breach of this Agreement or any warranty provided hereunder. Dealer shall be responsible for loading any patches, service packs or the like to any of such Software that is offered by the applicable manufacturer, either through its website or otherwise. Dealer is required to conduct a complete systems check and test of the Software, related hardware and Product to include, but not be limited to, downloading any available updates or patches prior to shipment of the same to its customer or installation. Dealer can only revise the user interface, add additional changes or otherwise revise the Software by obtaining Seller’s advance written consent. Seller shall not support any such changes and any warranty otherwise provided hereunder shall not apply to any revised Software.
C. Disclaimer. THE OBLIGATION OF SELLER TO COOPERATE WITH DEALER TO PROVIDE IT WITH THE BENEFIT OF ANY WARRANTY COMMITMENT OF THE APPLICABLE MANUFACTURER AS PROVIDED OR ABOVE IN SECTION 8.A IS THE SOLE AND EXCLUSIVE REMEDY OR WARRANTY MADE HEREUNDER, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ALL OF WHICH DEALER AGREES TO WAIVE. FURTHERMORE, SELLER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT(S) OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ANY SELLER AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SELLER’S LIABILITY. THE ABOVE EXCLUSION DOES NOT APPLY TO THE EXTENT THAT A JURISDICTION DOES NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES.
D. Limitation of Liability. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND THE DISCLAIMER OF WARRANTIES AS PROVIDED FOR ABOVE, IN NO EVENT SHALL SELLER BE LIABLE TO DEALER, ANY CUSTOMER OF DEALER OR USER OF THE PRODUCTS, FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS OR REVENUES, LOSS OF USE OR DAMAGE TO ANY ASSOCIATED EQUIPMENT, DOWNTIME COSTS, COST OF CAPITAL, DIRECTLY OR INDIRECTLY, ARISING FROM USE OF THE SALES PRODUCTS, HOWEVER CAUSED, AND REGARDLESS OF SELLER HAVING BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER SHALL SELLER BE LIABLE FOR EXEMPLARY OR PUNITIVE DAMAGES. THE EXCLUSIVE REMEDY OF DEALER STATED IN THIS AGREEMENT IS IN LIEU OF ALL LIABILITIES FOR DAMAGES OR OTHER RELIEF CONCERNING ANY MATTER ARISING OUT OF THIS AGREEMENT.
E. Indemnification. Dealer shall indemnify and hold Seller harmless from any loss or damage to persons or property based upon use, possession or operation of the Product by Dealer or its customers and shall indemnify Seller from any expense or cost incurred, including attorney’s fees, if any such claims are made.
9.County and state licenses. Dealer will maintain in effect during the term of this Agreement all the necessary documents or licenses to install the products in Dealer’s state and county. Dealer will furnish to Seller certificates evidencing such document upon request.
10.DEFAULT. In the event (a) Dealer defaults in the payment of any moneys due to Seller hereunder beyond the tenth day after the same is due, (b) Dealer defaults in the performance of any other of its obligations under these terms for a period of ten days after receipt by Dealer of notice thereof from Seller, (c) Dealer files a petition of bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee or makes an assignment for the benefit of creditors or enters into a similar arrangement with creditors, or (d) Dealer suffers a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee against it and Dealer fails to secure a discharge thereof within thirty (30) days, then in any such event Seller may at its option do any or all of the following: (i) charge dealer’s credit card to pay for the un-paid balances. The credit card information was previously provided by dealer either through phone or emails and was used to paid for previous invoices(ii) terminate the sale; (iii) whether or not the sale is terminated, take immediate possession of any or all of the Products wherever situated and for such purpose enter upon any premises without liability for so doing; and (iv) sell, dispose of, hold, use or lease all or any of the Products as Seller, in its sole discretion, may decide without any duty to account to Dealer. Dealer shall in any event remain fully liable for damages as provided by law and for all costs and expenses incurred by Seller on account of such default including all court costs and reasonable attorney’s fees, and a 20% restocking fee in the event that Seller takes possession of any Product hereunder. The rights afforded Seller under this paragraph shall not be deemed to be exclusive but shall be in addition to any rights or remedies provided by law. Seller shall also have any other rights and remedies of a secured creditor upon default as provided for by applicable law.
11.ADJUSTMENT IN PRICE AND PRODUCT. Notwithstanding any provision in this Agreement to the contrary, the purchase price of any Product sold hereunder may be increased in the event that the applicable manufacturer increases the price at which Seller purchases such Product for resale. Seller will notify Dealer promptly of any increase in the purchase price and Dealer shall have the opportunity to cancel the applicable order or accept the increased purchase price. Seller reserves the right to supply Product that has been modified or changed in whole or in part, at any time prior to delivery to include electrical, mechanical or software refinements deemed appropriate by the applicable manufacturer. Dealer will have the right to promptly cancel an order for Product to the extent that any such change materially alters the performance of or the function of such Product. Seller shall not be responsible for any changes that affect the performance of or the function of Product or the interchangeability of Product and any spare parts, previously delivered.
12.CHOICE OF LAW, FORUM SELECTION & VENUE. This Agreement has been entered into in the Commonwealth of Virginia. The laws of the Commonwealth of Virginia shall govern all matters as to the interpretation, performance, and enforcement of this Agreement. In the event of any litigation between Dealer and Seller in connection with this Agreement or any Product purchased hereunder, jurisdiction shall be exclusively in the courts of the Commonwealth of Virginia, State and Federal, and venue shall be exclusively in the Circuit Court of Fairfax County, Virginia or in the United States District Court for Virginia located in Alexandria, Virginia.
13.PRODUCT RECALL. If requested by Seller, Dealer shall give all reasonable assistance in locating and recovering any defective Product and preventing their sale to third parties and, in particular, shall comply with any product recall procedures adopted by Seller or any applicable manufacturer. Dealer shall use reasonable efforts to ensure that its end-users cooperate in a similar manner.
14.EXPORT LAWS. Dealer shall comply fully with all laws and regulations of the United States and other countries (“Export Laws”) to assure that neither the Product nor any related or associated software are (1) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
15.MISCELLANEOUS. This Agreement is intended to be the entire agreement between Seller and Dealer relating to the subject matter hereof, superseding all prior and contemporaneous communications, negotiations, representations, and agreements of Seller and Dealer whether oral or written. This Agreement may not be modified except by writing signed by both parties. Failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance. If any provision of this Agreement is held invalid, all other provisions of this Agreement shall remain in effect; PROVIDED, HOWEVER, that the invalid provision shall to the extent possible be modified by the parties, or a court of law, as needed to make such provision valid. This Agreement may be executed in electronically and in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Executed copies of this Agreement delivered by facsimile transmission shall be deemed an original signed copy of this Agreement.
