This Reseller Agreement BETWEEN Our Company and First Video Communications FZ LLC., a limited liability company duly registered with the Dubai Technology and Media Free Zone Authority having its registered address at P. O. Box 500285, Dubai, United Arab Emirates. AND Our Company a company duly registered under the applicable laws of and having its registered address (Mentioned in the Form)
FVC is engaged in the business of distributing and selling renowned brands of IT hardware and software products and also providing services related to the same.
Reseller claims to have marketing and distribution expertise in the territory where it operates and knowledge of the application of the Products.
FVC has agreed to sell/provide, and the Reseller has agreed to buy/avail, the Products and Services on the following terms and conditions.
1.1 Reseller means (As mentioned in the Form)
1.2 FVC means First Video Communications FZ LLC.
1.3 Products mean IT hardware and software items and goods to be supplied by FVC to the Reseller, in accordance with the FVC Terms and Conditions.
1.4 Services mean services to be provided by FVC to the Reseller.
1.5 Territory shall mean the countries, regions, or the geographical area as per agreed with FVC.
1.6 Third Party Software means the software owned by or licensed to the Reseller from a third party owner supplied by FVC and comprising part of the Products.
1.7 Sales Target shall mean the minimum orders that the Reseller undertakes to place with FVC every quarter as per the agreement with FVC..
1.8 Agreement/s” shall mean and include any agreements, quotations, purchase orders, Performa invoices, contracts, order acknowledgements, delivery orders, invoices issued/signed by FVC and/or the Reseller for the sale and/or supply of the Products and Services.
1.9 Confidential Information shall mean pricing and other information related to the Products, Services and Third Party Software; trade secrets; business, marketing, technical information or any other information identified or marked as ‘Confidential’ by FVC. 2
1.10 Parties means FVC and the Reseller and ‘Party” means either of them.
1.11 Terms and Conditions shall mean this Reseller Agreement.
2.1 Subject to the terms and conditions of this agreement, FVC hereby appoints Reseller as an authorized non-exclusive Reseller for the Products and Services in the Territory and the Reseller hereby accepts such appointment.
2.2 The Reseller shall sell/market the Products and Services only in the Territory and in accordance with the Terms and Conditions and the applicable laws. A breach of this Article shall be deemed a material breach of this Reseller Agreement.
2.3 The Reseller shall meet the Sales Target, which shall be reviewed by FVC from time to time in accordance with its business plan.
3 ORDER ACCEPTANCES
3.1 All Orders placed with FVC by the Reseller for Products/Services shall constitute an offer to FVC.
3.2 Orders shall be deemed to be accepted if it conforms to the related Quotation or upon FVC either issuing a written confirmation to the effect or issuing a Performa Invoice. In the latter case the order shall be deemed to be accepted on the Reseller acknowledging the terms of the Performa Invoice.
3.3 All Orders are accepted and Products/Services supplied subject to the Terms and Conditions, which shall apply to all Agreements for the sale and /or supply of Products and Services. No amendment of the Terms and Conditions shall be v alid unless confirmed in writing by FVC’s Managing Director or General Manager.
3.4 In case the Reseller commits or agrees orally to place an order with the employee of FVC with respect to the purchase of Products and provision of Services then such agreement or commitment shall be binding on FVC only when it is duly reduced to writing in accordance with the Terms and Conditions in the form of a Reseller Agreement.
3.5 In the event that after the acceptance of the Order the manufacturer notifies FVC that the Products, which are the subject of the said Order, have been discontinued, FVC shall not be held responsible for any loss or damage caused to the Reseller.
3.6 In case of any discrepancy between the Terms and Conditions and the Reseller’s terms and conditions of purchase, the Terms and Conditions shall prevail.
3.7 The Products and Third Party Software are subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, and Office of Foreign Asset Controls. The Reseller undertakes to comply with the said laws and regulations, and will not, without prior U.S. government authorization, export, re-export, or transfer any Products, Third Party Software or technology related thereto, either directly or indirectly, to any country subject to a U.S. trade embargo (currently Cuba, Iran, Libya, North Korea, Sudan, and Syria) or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. No Products, Third Party Software or technology related thereto shall be exported, re-exported, or 3 transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
4.1 FVC shall make every reasonable effort to meet quoted/acknowledged delivery dates,
4.2 Any time or period quoted for dispatch is to be treated as an estimate only. Dispatch may be postponed because of conditions beyond FVC’s reasonable control, or for any other reason, and in no event shall FVC be liable for any damages or penalty for delay in dispatch or delivery.
4.3 In case FVC is not able to deliver the Products within the agreed or stipulated period then FVC shall make the partial deliveries and to this extent shall be entitled to extend the delivery period.
4.4 Failure to meet the delivery period shall not entitle the Reseller to dissolve the Agreement and/ or to demand compensation.
4.5 If FVC cannot reasonably be expected to meet its delivery commitment as a result of force majeure, FVC shall have right to suspend the delivery.
4.6 Delivery to the Reseller of a quantity of Products less than or greater than that which FVC has agreed to sell shall under no circumstances entitle the Reseller to reject the Products delivered.
4.7 Risk s hall pass to the Reseller at the time the Products are delivered to the authorized forwarder of the Reseller by FVC. FVC accepts no liability for any loss or damage caused to the Products subsequent to such delivery.
4.8 If Reseller fails to take delivery of the Products within 15 days of being notified by FVC that the said Products are ready to be delivered, a stocking fee of 1.5% per month of the invoice value of such Products will be charged to the Reseller.
4.9 If Products have not been received, the Re seller must notify FVC in writing within 7 days of the expected date of delivery. If proof of dispatch is required, this must be requested within 14 days of the date of the related invoice.
4.10 If Reseller fails to meet any of his obligations in any form whatsoever with FVC then FVC shall have right either to suspend the delivery of Products or to dissolve the Agreement by serving a notice in writing to the Reseller.
5.1 Prices as quoted in the catalogues, price lists and other advertising literature or material used by FVC are intended only as an indication as to price and the range of Products and Services offered and being subject to change at any time, at the sole discretion of FVC, shall not be binding on FVC.
5.2 All prices quoted by FVC are EXW or Ex Works (Incoterms 2010) Jebel Ali Free Zone unless agreed otherwise by FVC in writing.
5.3 All listed prices are based on the cost to FVC of supplying the Products/Services to the Reseller. If before acceptance of the Order of the Products/Services there occurs any increase in such costs of the said Products/Services, the price payable ma y be subject to amendment without notice at the sole discretion of FVC.
5.4 All the prices quoted by FVC, irrespective of the fact that they have been quoted orally, or i n writing or in a specific quotation or otherwise, are exclusive of all government charges or duties, except unless specifically agreed to in writing.
6 PAYMENT TERMS
6.1 Invoices will be issued by FVC on the date of dispatch of the Products or provision of Services. In the event of any discrepancy Reseller shall bring it to the notice of FVC – Credit Department within seven (7) working days from the date of receipt of the invoice.
6.2 Unless otherwise agreed upon in writing by FVC the payment terms shall be payment in advance, to be paid upon the acceptance of the order.
6.3 If the Reseller is in default, the Reseller shall be liable to pay interest on the outstanding amount @ 1.5% per month from the date of such default till payment in full.
6.4 Invoices shall ordinarily be denominated in United States Dollars (USD). Where an invoice is denominated in any currency other than USD, the Reseller shall settle the invoice in such currency.
6.5 All charges related to transfer of funds, including but not limited to wire transfer, letter of credit, confirmation charges, and letter of guarantee will be borne by the Reseller, unless otherwise agreed in writing prior to execution of the Agreement.
6.6 The Reseller shall not be entitled to any kind of discount or set-off unless it is expressly agreed by FVC. Any kind of claim by Reseller, as it may have on FVC, to setoff is explicitly excluded.
6.7 In the event of any cessation of supplies under the Terms and Conditions, FVC may withdraw any credit facility granted to the Reseller and consequently all outstanding invoices shall become due and payable forthwith.
6.8 In the event of Reseller’s default in payment FVC is constrained to file proceedings in the Court of competent jurisdiction for relief, Reseller shall bear all related costs incurred by FVC including attorney’s fees and other disbursements not reimbursed by the Court.
7.1 Notwithstanding dispatch and subject to the passing of risk in the Products to the Reseller pursuant to Clause 4.7, title to the Product s shall remain with FVC until all prices due in respect of the Products an d any Products supplied previously to the Reseller have been paid in full and realized by FVC.
7.2 Until such time as the title to the Products passes to the Reseller, the Reseller’s possession of the Products shall be deemed to be on behalf of FVC as FVC’s agent. During such period the Reseller shall store the Products in a secure and proper environment with adequate insurance cover and capable of being distinctly identified. The Reseller may resell or use the Products in the ordinary course of its business, but shall account to FVC the proceeds of such sale, usage or otherwise, whether tangible or intangible, including insurance proceeds, and shall retain all such proceeds secure and separate from any moneys or property of the Reseller and of third parties until the title to the Products passes to the Reseller.
7.3 Until such time as the title to the Products passes to the Reseller (and provided the Products are still in existence and have not been resold), FVC shall be entitled at any time to require the Reseller to deliver the Products to FVC and, if the Reseller fails to do so forthwith, to enter upon any premises of the Reseller or any third party where the Products are stored and repossess the Products. In such events FVC shall not be liable to reimburse to the Reseller the costs/expenses incurred by him on such Products, including shipping, taxes, duties etc. 5
7.4 The Reseller’s right to sell or use the Products as referred to in Clause 7.2 above shall immediately cease if any security held by any third party is enforced over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if it makes an arrangement with its creditors, or generally becomes unable to pay its debts. On cessation of the Reseller’s right to sell or use the Products the Reseller’s possession of the Products shall be deemed to be on behalf of FVC as FVC’s agent. Until such time as FVC exercises its right under Clause 7.3 above the Reseller shall store the Products in a secure and proper environment with adequate insurance cover and capable of being distinctly identified.
7.5 Until such time as the title to the Products passes to the Reseller, the Reseller shall not be entitled to pledge or in any way charge by way of security any of the Products. Any breach of this covenant shall (without prejudice to any other right or remedy available to FVC) result in all Invoices of F VC becoming due and payable forthwith.
8 SPECIFICATIONS OF PRODUCTS
8.1 FVC will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the Products and/or Third Party Software from the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. FVC will use its reasonable endeavors to advise the Reseller of any such impending variation as soon as it receives any notice thereof from the manufacturer.
8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications. As these may be improved, or modified, FVC reserves the right to increase its quoted or listed price, or to charge accordingly for any orders for Products with non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Products related to such orders.
8.3 Immediately after delivery, the Reseller shall inspect the Products for any variances from the agreed requirements. Any such variance must be notified to FVC, in writing, within fifteen days from the date of delivery. On expiry of such period, the Reseller shall be deemed to have, irrevocably and unconditionally, accepted the Products. In any event such notice shall be given before the Products are used, changed in form due to any reason, or resold. No claim on quality will be tenable if the Products are used, changed in form, or resold. Subsequent to giving such notice, the Reseller shall provide FVC reasonable opportunity to test the Products, before they are used or resold. Notifying FV C shall not suspend the Reseller’s payment obligation in respect of the Products in dispute. Any dispute between FVC and the Reseller as to whether the Products are defective in quality or otherwise not in compliance with Agreement, shall be determined at the sole discretion of FVC.
9 INTELLECTUAL PROPERTY RIGHTS RELATED TO THIRD PARTY SOFTWARE
9.1 The Reseller hereby acknowledges that all intellectual property rights to any Third Party Software supplied shall at all times and for all purposes vest and remain vested in the Third Party Software owner.
9.2 The Reseller acknowledges its sole responsibility to comply with any terms and conditions of the license for the Third Party Software supplied and delivered by FVC (including, if so required, the execution and return of a Third Party Software license). The Reseller acknowledges that failure to comply with such terms and conditions could result in the Reseller being refused a license to use the Third Party Software or having the same revoked by the proprietary owner. The Reseller further agrees to indemnify FVC any costs, charges or expenses incurred by FVC in any claim or legal action by a Third Party Software owner as a result of any breach by the Reseller of such conditions. 6
9.3 No title to, or ownership of, software products or any Third Party Software licensed to the Reseller under this Agreement is deemed to be transferred to the Reseller in any manner whatsoever.
10.1 Orders for Products cannot be cancelled and where delivered, are strictly non-returnable.
10.2 In exceptional cases, as determined by FVC at its sole discretion, FVC may agree to accept the return of any Product and a cancellation of the corresponding order or part of it. I n such cases FVC reserves the right to claim from the Reseller the costs incurred by FVC to bring the Products to a saleable condition and a re-stocking or cancellation fee of 20% of the value of the returned Products.
10.3 Under no circumstances s hall any Products be returned without the Return Material Authorization Number (RMA Number) duly issued by FVC.
11.1 FVC warrants that it has good title to and/or valid license to supply the Products to the Reseller.
11.2 If any part of the hardware Products should prove defective in materials or workmanship under normal operation, such part or Products will be repaired or replaced strictly in accordance with the warranty cover and its terms as provided by the manufacturer of such part or Products provided that no unauthorized modification of the Product or to the system of which the Product forms part of has taken place..
11.3 All Products and Third Party Software are supplied on an “as is” basis and the sole obligation of FVC with regard to the same is to use all reasonable endeavors to obtain and supply a corrected version from the manufacturer concerned in the event that it fails to conform to its description provided that the Reseller notifies FVC of any such non-conformity within 90 days of the date of delivery of such Third Party Software.
11.4 If the Products are rejected by the Reseller as not being in accordance with the Reseller’s order pursuant to Clauses 11.2 or 11.3, FVC may accept the return of such Products only if it receives written notification thereof giving detailed reasons for rejection. No claim for compensation, indemnity or refund shall be entertained until liability, if any, has been established and agreed with the manufacturer and, where applicable, the insurance company. Under no circumstances shall the value of such Products be deducted or set off by the Reseller until and unless FVC has passed a corresponding credit note.
11.5 FVC warrants that the Services shall be performed with reasonable skill and care and in a good and workmanlike manner.
11.6 Except as specifically set out in this Clause 11, FVC disclaims and excludes all other warranties, whether express or implied, including but not limited to the warranties of description, design, merchantability and fitness for a particular purpose, or arising from any previous course of dealing, custom or trade practice.
11.7 In all the cases, FVC shall not give any kind of guarantee or warranty of whatsoever nature that the Products purchased is suitable for the purpose for which the Reseller wishes to use them or cause third parties to use them. 7
12 INDEMNITIES AND LIMITS OF LIABILITY
12.1 Unless specifically stated otherwise herein, FVC disclaims and excludes all liability to the Reseller in connection with the supply of the Products and Third Party Software and in no event shall FVC be liable to the Reseller for special, indirect or consequential damage including but not limited to loss of prof its or arising from loss of data in connection with the use of the Products or provision of Services. Unless specifically stated otherwise herein all terms of any nature, express or implied, as to conformity with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.
12.2 FVC shall not be held liable for any indirect, special, incidental, or consequential loss or punitive damages, of any manner whatsoever, associated with or caused by an error or omission in the performance of the Agreement, including but not limited to packing, assembly/disassembly and / or installation/ reinstallation costs.
12.3 FVC shall not be liable to the Reseller or any third party for any loss of profit, consequential or other economic loss suffered by the Reseller arising in any way from the Agreement or as a result of improper installation or misapplication of the Products.
12.4 The Reseller shall indemnify FVC and its employees against any third-party claims for compensation, loss or otherwise which directly or indirectly relates to Products and/or any information related to Products furnished by FVC.
12.5 FVC shall not be liable for any default due to any reason beyond the control of FVC including, but not limited to, acts of God, war, civil unrest, riot, strike, and lockout, acts of civil or military authorities, fire, flood or earthquake or shortage of supply or failure to deliver by the supplier or manufacturer.
12.6 No standard or specification as to the suitability of the Products for any purpose shall give rise to any legal liability of FVC. The Reseller shall satisfy itself that the Products are suitable for any pro duct or application for which they are to be used before the Products are used.
12.7 In case of any loss incurred by the Reseller or any third party with regard to the Products and/or its delivery then neither FVC nor its employees, nor any third party engaged by FVC shall be held liable.
12.8 In any event the total liability of FVC, if such liability is expressly admitted in this Reseller Agreement or in writing by FVC, on any claim, whether in contract, warranty, tort (including negligence) or otherwise, arising out of, connected with, or resulting from the performance or non-performance of any Agreement resulting here from or from the sale, delivery, resale, repair, or replacement of Products shall not exceed the proportionate price of the Products, which gives rise to the cl aim, according to its related invoice.
12.9 If the Agreement is terminated by FVC due to the failure of the Reseller to meet any of its obligations in any form whatsoever the Reseller shall not be entitled to any kind of compensation for any kind of loss sustained by him.
12.10 If FVC procures Products from third parties, FVC’s liability with respect to such Products shall not be independent of the liability of said third parties irrespective of whether such third party continues to do business or is liquidated or under liquidation.
13 TERMINATION FOR CAUSE
13.1 This Agreement may be terminated forthwith by notice in writing: 8
13.1.1 By FVC if the Reseller fails to pa y any sums due to FVC by the due date notwithstanding the provisions for late payment in Clause 6.2.
13.1.2 By FVC if the Reseller has failed to provide any letter of credit, bill of exchange or any other security as required by the Agreement provided that in such an event FVCs rights of termination or suspension under this condition shall apply only in reg ard to the particular Agreement in respect of which the Reseller shall have so failed.
13.1.3 By FVC if the Reseller has failed to take delivery of the Products under any Agreement.
13.1.4 By any party if the other party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the non- defaulting party.
13.1.5 If either party is involved in any legal proceedings concerning solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or any security is enforced by any third party appointed over all or any part of its assets or generally becomes unable to pay its debts, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
13.1.6 If the Reseller violates the provisions of Clause 3.7.
13.1.7 By the mutual consent of both Parties.
13.2 Termination of this Agreement for any reason whatsoever shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party.
13.3 FVC shall be entitled to exercise its rights of termination or suspension under this Clause at any time during which the event giving rise to such rights is continuing and has not been remedied and, in the event o f a suspension, FVC shall be entitled, as a condition of resuming delivery under any Agreement between it and the Reseller, to require prepayment or such security as it may require for the payment of the price for further orders of the Products.
14.1 The headings used in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
14.2 This document constitutes the entire, complete, and exclusive and understanding between the parties with respect to the subject matter thereof and contains all the terms and conditions of sale. No course of dealing or usage of the trade shall be applicable unless expressly incorporated herein.
14.3 No forbearance, delay, or indulgence by FVC in enforcing its rights shall prejudice or restrict those rights, and no waiver of any such rights or of any breach by the Reseller of any contractual terms shall be deemed to be a waiver of any other right or a condoning of any such or any other breach.
14.4 The relationship between FVC and Reseller is that of independent contractors. Neither party is the agent of the other nor does neither party have any authority to make any contract or undertake any obligation expressly or impliedly in the name of the other party, without that party’s prior written consent for purposes connected with the performance of the Agreement or otherwise. 9
14.5 The Reseller shall not to assign any of its rights under this Agreement without the prior written consent of FVC.
14.6 If any term or provision of the Terms & Conditions is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue to be applicable in full force and effect as if the Terms and Conditions had been agreed without the invalid, illegal, or unenforceable provision.
14.7 Neither party shall be liable to the other for any delay in or failure to perform its obligations (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control.
14.8 Any documents or notices given under the Terms and Conditions by either party to the other must be in writing and may be delivered personally or by courier, in which case service will be deemed to have been affected 3 working days after the d ate of dispatch. Documents or notices shall be de livered or sent to the addresses of the parties as stated on the first page of this Reseller Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this document.
14.9 The Reseller shall at all times respect the confidentiality of the Confidential Information which shall come into its possession directly or indirectly as a consequence of this Reseller Agreement and shall not give or disclose any such information to any third party without the prior written consent of FVC.
14.10 The validity, performance and all the matters relating to the interpretation and effect of these Terms & Conditions and all disputes and/or difference there from or related thereto shall be governed by the laws of United Arab Emirates.
14.11 The signatures below confirm that each Party understands and agrees to these terms and conditions and that each Party’s representative has the authority to enter into this document on its behalf.
15 COMPLIANCE WITH APPLICABLE ANTI-BRIBERY/ANTI-CORRUPTION LAWS
In connection with its performance under this Agreement, Reseller represents and warrants the following:
- Reseller will not promise or offer to pay, or use money or other consideration for any unlawful purposes, including any purpose that would violate applicable anti-bribery and other anti-corruption laws, including without limitation, direct or indirect payments, for the purpose of obtaining or retaining business, to or from any person associated with either a commercial or government-affiliated entity, as well as any person who is a candidate for political office, or any political parties or party officials.
- Reseller will maintain a written policy directed to its employees that expressly prohibits any form of bribery and requires that its employees periodically review and acknowledge their full compliance with such policy.
- Reseller, including its directors and officers, is not and has not within the past 10 years been listed by any government or public agency (such as the United Nations or World Bank) as debarred, suspended, or proposed for suspension or debarment or otherwise ineligible for government procurement programs.
- In no event shall Reseller be obligated to take any action or omit to take any action that Reseller believes, in good faith, would cause it or FVC to be in violation of any applicable anti-bribery and other anti-corruption laws.
- Notwithstanding any other provision in this Agreement, FVC may suspend the performance or terminate this Agreement immediately upon written notice if FVC has reasonable belief that the Reseller has breached the representations and warranties set forth in this Section 15.
Reseller hereby agrees to indemnify, defend and hold FVC harmless from and against any claims, judgments, fines, penalties, and related costs, including without limitation, costs of counsel, arising from or related to its breach of this Section 15. This obligation of indemnity shall survive any expiration or termination of this Agreement.
In addition, Reseller shall procure that anti-bribery/anti-corruption provisions, which are at least as stringent as those contained in this Section 15, are included in any agreement entered into between Reseller and a third party for the purposes of selling FVC Products and Services.”
IN WITNESS, FVC and the Reseller have respectively executed the Terms and Conditions to be effective as of the latest date written (Mentioned in the Form).
** The term “Our Company” refers to the Partner or End User.