GE Interlogix Authorized Dealer Agreement
SECURITY PRO Program
This Agreement is made effective as of February 19, 2003, by and
between GE INTERLOGIX, INC. ("GE Interlogix') and PROGUARD PROTECTION
SERVICES, INC., a Colorado corporation ("Dealer").
GE INTERLOGIX AND DEALER AGREE AS FOLLOWS:
1. APPOINTMENT: ASSIGNED TERRITORY.
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A. Subject to the terms and upon the conditions contained in this
Agreement, GE Interlogix hereby grants to Dealer the non-transferable
right to distribute and sell the SECURITY PRO line of security products
(which are more fully described and defined as the "Program Products"
in the Standard Security Pro Terms and Conditions attached to the
Agreement), within the following geographic area (the "Assigned
Territory"): In the state of Colorado the Counties of Eagle (2),
Garfield (3) and Pitkin (2). Dealer hereby accepts such appointment
and agrees to act as a dealer of the Program Products in the Assigned
Territory. Dealer agrees that (i) any and all security and/or life
safety products purchased by Dealer during the term of this Agreement
shall be Program Products (or, if a suitable Program Products is not
available, dealer shall purchase Stand Products, as such term is
defined below); (ii) Dealer will not sell any Program Products for
installation outside of the Assigned Territory; and (iii) Dealer has
and shall maintain during the term of this Agreement all governmental
licenses or permits necessary in connection with its business
operations. In turn, GE Interlogix agrees that, in addition to Dealer,
GE Interlogix will limit its appointment of dealers of Program products
within the Assigned Territory listed above, including Dealer. Not
withstanding anything to the contrary contained in this Agreement, GE
Interlogix reserves the unrestricted right to sell GE Interlogix
security and/or life safety products that are not Program Products (GE
Interlogix "Standard Products") in the Assigned Territory directly (or
indirectly) to any dealer, individual or entity.
B. GE Interlogix shall have no obligation to service, support, or ship
to, a Dealer location outside the Assigned Territory.
2. PURCHASE OF PRODUCTS.
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Any and all security and/or life safety products purchased and/or
installed by Dealer during the term of this Agreement shall be Program
products (or, if a suitable Program Product is not available, Stand
Products). Dealer shall purchase such Program Products (or Standard
Products if a suitable Program Product is not available) directly from
GE Interlogix from time to time in customary commercial quantities at
the then current prices for such goods and upon GE Interlogix then
current terms. The prices and terms at and upon which Program Products
(or Standard Products if a suitable Program Product is not available)
shall be sold to Dealer shall be provided to Dealer from time to time
and, not withstanding anything contained in this Agreement to the
contrary, may be changed or modified by GE Interlogix at any time, in
GE Interlogix's sole and absolute discretion.
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3. SALES GOAL.
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Dealer agrees that its continued participation in GE Interlogix's
authorized dealer program shall be conditioned upon achievement of
certain predetermined sales performance criteria. GE Interlogix
anticipates that Dealer shall purchase and install Program Products (or
Standard Products if a suitable Program Product is not available) with
an aggregate invoice value (excluding any amounts invoiced for freight,
taxes or other third party charges) of Twelve Thousand and no/100
Dollars ($12,000.00) per month during the Initial Terms (as that term
is defined below) and any Renewal Terms (as that term is defined
below). The consequence of a failure by Dealer to purchase Program
Products (and Standard Products if a suitable Program Product is not
available) in the minimum amounts set forth in this Section 3 is (i)
termination of this Agreement at GE Interlogix's sole option in
accordance with Section 8 of the Standard Security Pro Terms and
Conditions; or (ii) a change in the Assigned Territory and/or
assignment of additional dealers of Program Products within the
Assigned Territory, at GE Interlogix's sole option.
4. TERM OF THE AGREEMTNS.
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A. Initial Term.
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The initial term of this Agreement (the :Initial Term") shall commence
upon execution of this Agreement by both partied hereto and shall
continue in full force and effect until February 17, 2004, unless
otherwise terminated in accordance with Section 8 of the Standard
Security Pro Terms and Conditions. The parties hereto acknowledge and
agree that the term of this Agreement, as set forth herein, shall not
be impacted or affected by any prior existing agreement between GE
Interlogix and Dealer or any previous conduct of GE Interlogix or
Dealer.
B. Automatic Renewal.
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At the end of the Initial Term, GE Interlogix shall establish a new
sales goal pursuant Section 3.C. above and this Agreement shall
automatically renew for one (1) year period (subject to earlier
termination in accordance with Section 8 of the Standard Security Pro
Terms and Conditions) in the event that Dealer has purchased and
installed Program Products (and Standard Products if a suitable Program
Product is not available) during the twelve (12) month period ending
December 17, 2003 (this date is two months prior to the end of the
Initial Term), with an aggregate invoice value of at least One-Hundred-
Forty-Four Thousand and no/100 Dollars ($144,000.00).
C. Further Renewals.
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Provided that Dealer has satisfactorily performed all of its obligation
under this Agreement during the Initial Term and all previous renewal
terms, GE Interlogix will renew or extend this Agreement beyond the one
(1) year renewal period set forth in Section 4.b. above upon such terms
and conditions that are mutually acceptable to the parties; provided
that such agreement shall be in writing, shall specifically reference
this Agreement and shall specify with particularity the terms of such
renewal or extension period.
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5. NOTICES.
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All correspondence or other notices shall be in writing and considered
delivered if sent by first class main, postage prepaid, at the address
listed below:
GE Interlogix, Inc. Proguard Protection Services, Inc.
0000 Xxxxx Xxxxxx Xxxxxx 000 X xxxx Xxxxxx, Xxxxx 00
Xxxxx Xx Xxxx, XX 00000 Xxxxx, XX 00000
Attn: Security Pro Program Mgr Attn: Xxxxx Xxxxx
6. STANDARD SECURITY PRO TERMS AND CONDITIONS.
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Dealer and GE Interlogix acknowledge and agree that the relationship
contemplated by this Agreement shall be further governed by all terms
and conditions set forth in the attached Standard Security Pro Terms
and Conditions, which terms and conditions are deemed to be part of
this Agreement as if fully set forth in this Agreement.
7. RELEASE OF CLAIMS.
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In consideration of the execution of this Agreement or any renewal
hereof, and of such sales of said products as GE Interlogix may make to
the Dealer hereunder, the Dealer hereby releases GE Interlogix from all
claims, demands, contracts, and liabilities, if any there be, as of the
date of the execution of this Agreement or of any renewal hereof,
except indebtedness which may be owing, and claims (a) founded upon a
written contract and (b) under written warranties and product service
plans issued by the Company.
8. EXCLUSIVE TERMS.
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THIS agreement, including the attached Standard Security Pro Terms and
Conditions, any exhibits attached hereto or thereto, and documents
expressly referred to herein, contains the entire agreement between GE
Interlogix and Dealer and supersedes and cancels any and all other
agreements, whether oral or in writing, between GE Interlogix and
Dealer with respect to the matters referred to herein, including,
without limitation, any promotional materials, prior pricing
agreements, agreements regarding discounts, agreements regarding
protected territory, and agreements regarding credit terms. Any term
or condition in any purchase order, confirmation or other document
furnished by Dealer that is in any way inconsistent with or in addition
to the terms and conditions of the Agreement is hereby expressly
rejected by both Dealer and GE Interlogix.
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The parties hereto have executed this Agreement as of the date first
written above.
PROGUARD PROTECTION SERVICES, INC. GE INTERLOGIX, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
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(Signature) Xxxx Xxxxxx,
Vice President of Sales
Name: Xxxxx X. Xxxxx
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(Name Typed or Printed)
Its: President
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(Title Typed or Printed)
Date: 2/25/03
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STANDARD SECURITY PRO TERMS AND CONDITIONS
Each of the following terms and conditions are incorporated by
reference as part of the GE Interlogix Authorized Dealer Program
Agreement between Dealer and GE Interlogix (the "Dealer Agreement").
1. DEFINITIONS.
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Except as otherwise expressly set forth herein, all capitalized terms
that are defined in the Dealer Agreement shall have the same meaning
herein as assigned to them in the Dealer Agreement.
2. SECURITY PRO PRODUCT LINE.
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The Program Products shall consist of the products described in the
SECURITY PRO Dealer Price List, as the same may be amended from time to
time by GE Interlogix.
3. DELAER RELATIONSHIP.
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A) During the term of the Sealer Agreement, Dealer my represent that
it is an authorized dealer of GE Interlogix's SECURITY PRO product
line. The parties understand and agree that nothing contained herein
shall be deemed to create an employment, agency, franchise or other
relationship between Dealer and GE Interlogix for any purpose
whatsoever and that no relationship is intended or created hereby other
than the relationship of independent contractors. Dealer shall have no
right or authority to assume or create any obligation or
responsibility, express or implied, on behalf of, on account of, or in
the name of GE Interlogix, or to legally bind GE Interlogix in any
manner whatsoever. Further, Dealer acknowledges and agrees that it is
not a spokesperson for GE Interlogix, and that Dealer shall not take
any actions, or fail to take any actions, that indicate to any third
parties that Dealer is authorized to speak on behalf of GE Interlogix.
B) This agreement is not intended to be construed as a "franchise"
agreement under any present or future state or Federal laws, and if it
is so construed by any court or governmental agency having
jurisdiction, GE Interlogix's may terminate this Agreement forthwith
upon one day's written notice, whereupon all rights and obligations of
the parties hereunder shall terminate (except the right to obtain
payment of any amount due for products sold and delivered by GE
Interlogix).
4. TRADEMARKS.
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A) The Dealer acknowledges that the words "General Electric" are the
dominant feature of the trade name of the General Electric Company and
its affiliates and that the registered marks "GENERAL 'GE' ELECTRIC"
and "GE" are the principal trademarks for products manufactured and
sold by the General Electric Company and its affiliates. No license is
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granted hereunder to use such trademarks, or any other trademark,
servicemark, or trade name that is now or hereafter owned by the
General Electric Company and its affiliates. Without limiting the
foregoing, the Dealer specifically agrees that it will not, in any
manner, use the words, "General Electric" or any imitation or variant
thereof as part of the Dealer's trade name, company or firm name.
B) Subject to subparagraph 4.C. and 4.D. below, Dealer agrees to
incorporate the SECURITY PRO logo in all marketing and sales materials
that relate to the Program Products, including, without limitations,
stickers, trucks, display advertising and other promotional materials
only in the form provided by GE Interlogix, (Exhibit X), and in
accordance with GE identity standards.
C) The Dealer is authorized, so long as this Agreement is in effect,
to display prominently the trademarks and trade names of GE Interlogix
(the "GE Interlogix Marks") applicable to products manufactured by GE
Interlogix and sold to the Dealer hereunder in publications, signs and
displays, vehicle markings and suitable advertising and sales promotion
media, but only directly in association with names or illustrations of
said products, or with said products themselves, and only in connection
with its authorized distribution of Program Products. The Dealer
agrees (i) to comply at all times with all rules and regulations
furnished to it by GE with respect to the use of such trade marks and
trade names; (ii) to identify properly the relationship with GE for
said products; (iii) not to publish, cause to be published, encourage
or approve any advertising or practice which might be detrimental to
the good name, trademarks, good will or reputation of GE or its
products; and (iv) to discontinue, upon request, any advertising or
practice deemed by GE to have such effect. Dealer hereby agrees that,
prior to publication of any materials that utilize the GE Interlogix
Marks, it shall submit the same to the Security Pro Program Coordinator
for approval. Further, Dealer agrees that no publication of the GE
Interlogix Marks shall occur unless it has received the prior written
approval for the publication of such items from the Security Pro
Program Coordinator. Dealer acknowledges and agrees that GE Interlogix
is the sole owner or licensee of all the GE Interlogix Marks and that
Dealer shall make no claim to the GE Interlogix Marks, including
ownership of any right or interest therein or any claim to use thereof,
except as specifically authorized by the Dealer Agreement.
D) Upon the termination of this agreement, the Dealer shall
discontinue all use of trademarks and trade names of GE, and shall not
thereafter use any name, title or expression in connection with any
business in which the Dealer nay thereafter be engaged which, in the
judgment of GE, so nearly resembles any trademark or trade name or part
thereof, owned by GE, as may be likely to lead to confusion or
uncertainty on the part of the public.
5. DUTIES OF DEALER.
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A. Promotion, Marketing and Sales.
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Dealer shall use its good faith best efforts to promote, market and
sell Program Products within the Assigned Territory.
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B. Resale Outside of Assigned Territory.
------------------------------------
Dealer agrees and acknowledges that GE Interlogix is extending to it
the benefits of the SECURITY PRO Program on the basis that the SECIRITY
PRO Program is applicable and available to Dealer only within the
Assigned Territory, and that Program Products are made available to
Dealer on the basis of Dealer's representation and agreement that such
Program Products are destined for resale only to ultimate end users in
the Assigned Territory. If Program products are to be sold or sold to
anyone other that a bona fide end user located with the Assigned
Territory, then Dealer shall so inform GS Interlogix immediately upon
knowledge that this is the case.
C. Installation.
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All installations of Program Products or GE Interlogix Stand Products
by Dealer shall be performed in a workmanlike fashion I accordance with
the installation instructions provided by GE Interlogix and generally
accepted procedures in the industry for the professional installation
of security systems. Dealer shall not install any supervised wireless
security systems in the Assigned Territory other than Program Products
(or Standard Products if a suitable Program Product is not available).
Dealer shall ensure that any installations of Program Products (or
Standard Products if a suitable Program Product is not available) are
performed by personnel with the following certifications:
i) Burglar/CCTV/Access Control Installations.
-----------------------------------------
Installers: NTS Xxxxx 0 Certified
Technicians: NTS Level 1 Certified
At least one (1) supervisor that meets relevant state
certification requirements, but in one case less that one (1)
supervisor that is NTD Level 2 Certified
ii) Fire Alarm Installations.
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Installers: Fire Alarm Installation Methods Certified (FAIM)
Technicians: Fire Alarm Installation Methods Certified (FAIM)
Not less than one (1) supervisor that is Fire Alarm Installation
Methods Certified (FAIM) and Life Safety Course Certified or
NICET Level 3 Certified
D. Dealer Performance.
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In addition to any other guidelines or performance criteria which
Dealer must meet as is set forth herein or in the Dealer Agreement,
Dealer shall do each of the following:
i) Upon the request of GE Interlogix, provide compliance reports
and applicable documentation in connection with Dealer's compliance
with the terms and conditions set forth herein or in the Dealer
Agreement, including but not limited to compliance with purchasing
commitments, certifications of employees in accordance with Section 5
paragraph C above, and/or applicable license requirements.
ii) Dealer shall submit to bi-annual performance reviews in order to
determine Dealer's compliance with the terms and conditions set forth
herein and in the Dealers Agreement. Dealer acknowledges and agrees
that it shall be considered to be out of compliance if Dealer is
delinquent in payments for services/products rendered to any designated
program suppliers.
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iii) Compliance with sales performance criteria shall be reviewed by
GE Interlogix on a calendar quarter basis. Dealer will receive a
compliance warning if Dealer is not in compliance with the sales
performance criteria in the first (1st) month immediately following a
calendar quarter in which the sales performance criteria has not been
met. In the event that Dealer has not met sales performance criteria
by the end of the second (2nd) month immediately following a calendar
quarter in which the sales performance criteria has not been met,
Dealer may be removed from the GE Interlogix Authorized Dealer Program
in accordance with the terms and conditions as set forth in Section 3
of the Dealer Agreement. GE Interlogix shall in addition to its right
to remove Dealer from the GE Interlogix Authorized Dealer Program
pursuant to this Section 5.C.iii, have all other rights and remedies
afforded to it herein, pursuant to the Dealer Agreement, under
principles of equity, and at law.
iv) Pro Executive Group Arbitration is only available on issues
related to program marketing and certification requirements as they
pertain to possible removal of dealer from program and there is not
liability to either GE or members of the arbitration panel for
decisions they reach in any matter.
v) Dealers who receive a program compliance warning may be asked to
submit a copy of their current business plan in order to help the
company evaluate the value of their market potential and effectiveness
as it relates to the GE Interlogix Authorized Dealer Program.
vi) Dealers removed from the GE Interlogix Authorized Dealer Program
shall lose all privileged program suppliers pricing as well as any
affiliation to the Pro Web Network or any other future Program Product
or services.
vii) Dealer acknowledges and agrees that it cannot be in any two
dealer programs, with GE Interlogix or any third party, at the same
time.
E) Name and Office.
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Dealer shall conduct business in its own name and shall maintain such
other offices within the Assigned Territory as shall be necessary for
performance of Dealer's obligations under the Dealer Agreement. Dealer
shall not use the GE Interlogix Marks in its corporate or business
name, or within its telephone greeting, letterhead, stationery or
promotional items, provided that Dealer may utilize (orally or in
written form) the following language at its discretion: "An authorized
GE Interlogix SECURITY PRO dealer."
F) Marketing Program.
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Dealer shall make effective use of GE Interlogix's promotional and
marketing plans, information regarding which may be made available to
Dealer from time to time by GE Interlogix; provided, however, that
nothing contained herein shall obligate GE Interlogix to provide
marketing and/or promotional materials to Dealer. If GE Interlogix
shall provide Dealer such information and /or materials directed to
purchasers of Program Products or GE Interlogix Stand Products Dealer
shall communicate, deliver or transfer such information or materials,
as the case may be, to all such purchasers.
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G) Insurance.
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Dealer shall obtain and at all time maintain, at its sole cost and
expense, (i) Commercial General Liability Insurance for bodily and
property damage, including loss of use thereof, in the minimum amount
of One Million and no/100 Dollars ($1,000,000.00) per occurrence,
including coverage for products liability and completed operations; and
(ii) Errors and Omissions liability insurance in the minimum amount of
One Million and no/100 Dollars ($1,000,000.00) per occurrence. Dealer
shall provide proof of such coverage in the form of a Certificate(s) of
Insurance delivered to GE Interlogix at the time of execution of the
Dealer Agreement and from time to time thereafter upon request by GE
Interlogix. The Certificate(s) of Insurance shall provide that GE
Interlogix will receive at least thirty (30) days' prior written notice
of any modification, cancellation or non-renewal of such policy(ies).
H) Sale of Business, Etc.
---------------------
Dealer shall immediately notify GE Interlogix in the event it has, or
proposes to, sell all or substantially all of its business assets to a
third party or experiences a "Change in Control", A "Change in
Control" shall be deemed to have occurred in the case of (i) any
merger, consolidation or combination of Dealer with or into another
corporation or other form of business entity; or (ii) any person, or
any two or more persons acting as a group (other than Dealer's current
majority stockholder/owner or its affiliates), and all affiliates of
such person or persons shall beneficially own fifty percent (50
percent) or more of the outstanding equity interests of Dealer.
I) Annual Dealer Conference.
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Dealer shall attend each annual GE Interlogix SECURITY PRO Dealer
Conference which takes place during the term of the Dealer Agreement.
Dealer acknowledges and agrees that it shall be solely responsible for
all costs and expenses incurred by Dealer in connection with its
attendance of such conferences.
6. TERMS AND CONDITIONS OF SALE.
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A) Purchase Orders.
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All purchase orders from Dealer shall be considered accepted only if
accepted by GE Interlogix in writing or by shipment. All orders will
be subject to the terms and conditions of the Dealer Agreement,
including but not limited to the Terms and Conditions of Sale attached
hereto as Annex A.
B) Changes in Prices, discounts, Terms and Products.
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Except with respect to orders already accepted by GE Interlogix, GE
Interlogix shall have the right from time to time in its absolute
discretion and wither with or without advance notice to:
i) Change the prices, discounts, terms and conditions of sale
applicable to the sale of its products, including the Program Products
covered by this Agreement;
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ii) Change the discounts to Dealers and other terms and conditions
set forth from time to time in any Annex hereto, including but not
limited to Annex A;
iii) Withdraw, alter or supersede any one or more of the individual
types or models of products, including Program Products, or add new or
additional types or models of such products, including Program
Products.
7. TERMINATION.
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Notwithstanding anything contained in the Dealer Agreement to the
contrary, the Dealer Agreement may be terminated; (i) by Dealer at any
time without cause upon thirty (30) days' written notice by Dealer to
GE Interlogix; or (ii) by GE Interlogix at any time GE Interlogix
determines, in its sole and absolute discretion, to terminate the GE
Interlogix Authorized Dealer Program upon thirty (30) days' written
notice by GE Interlogix to Dealer. Furthermore, notwithstanding
anything contained in the Dealer Agreement to the contrary, GE
Interlogix shall have the right to terminate the Dealer Agreement
immediately upon occurrence of any of the following events:
A) A breach by Dealer of any of the covenants, agreements,
representations or warranties set forth herein or failure of Dealer to
perform any obligation or part of it hereunder, including, but not
limited to, its failure to maintain applicable sales performance levels
as set forth in Section 3 of the Dealer Agreement; or
B) Dealer fails to make any payments to GE Interlogix or any amounts
due, when and as the same shall become due and payable by acceleration
or otherwise; or
C) Dealer makes an assignment for the benefit of creditors or
authorizes, initiates or consents to the initiation against it of any
proceeding for a moratorium of for relief under the United States
Bankruptcy Code or any similar state law or otherwise procures a stay
of enforcement against it of creditors' remedies generally; or
D) Dealer terminates its business or otherwise ceases to function as a
going concern; or
E) Dealer makes any false statement, representation or claim to GE
Interlogix; or
F) Dealer conducts its business in such a manner as to create actual
or potential significant customer dissatisfaction such that, in GE
Interlogix's sole and absolute discretion, the goodwill of GE
Interlogix or GE Interlogix's Marks are adversely affected; or
G) Any principal owner(s) or officer(s) of Dealer engages in any
morally reprehensible act or is convicted of any crime if the
commission of such act or conviction of such crime would or could, in
GE Interlogix's sole and absolute discretion, adversely affect the good
will of GE Interlogix or GE Interlogix's Marks; or
H) A sale of all or substantially all of Dealer's business assets to a
third party or if Dealer experiences a "Change in Control" (as that
term is defined in Section5.H above); or
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I) Dealer engages in conduct with is unethical or otherwise inimical
to the business interests of GE Interlogix.
J) The rights and obligations of GE Interlogix and Dealer under this
Section 8 are expressly made subject to compliance with any law that
applies to the termination of the Dealer Agreement.
8. POST TERMINATION RIGHTS AND DUTIES.
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A) Upon termination or non-renewal of the Dealer Agreement; (i) Dealer
shall cease to be a participant in the SECURITY PRO Program and cease
to hold itself out to the public as such; (ii) Dealer shall immediately
discontinue use f the GE Interlogix Marks and all GE Interlogix
advertising and other material; (iii) any sum owned by either party to
the other will immediately become due, and Dealer shall be obligated to
ay for any orders not otherwise canceled by GE Interlogix; (iv) Dealer
shall as promptly as practicable cancel all telephone and local
publication listing containing the GE Interlogix Marks or suggesting
that Dealer is a distributor of the Program Products; (v) GE Interlogix
shall be relieved from any obligations to make further shipments and
may cancel all unshipped orders for Program Products; (vi) GE
Interlogix may, at its option, repurchase from Dealer at invoice price
any resalable Program Products purchased from GE Interlogix; and (vii)
GE Interlogix may, in its sole and absolute discretion, continue to
sell GE Interlogix Stand Products to Dealer at GE Interlogix's then
current prices and upon GE Interlogix's then current terms.
B) Neither GE Interlogix not the Dealer shall, by reason of the
termination of this Agreement, be liable to the other for compensation,
reimbursement or damages either on account of present or perspective
profits on sales or anticipated sales, or on account of expenditures,
investments or commitments made in connection therewith or in
connection with the establishment, development or maintenance of the
business or goodwill of GE Interlogix or the Dealer, or on account of
any other cause or thing whatsoever, provided, however, that such
termination shall not affect the rights or liabilities of the parties
with respect to products previously sod hereunder or with respect to
any indebtedness then owning by either party to the other. Upon
termination or non-renewal of the Dealer Agreement for any reason,
Dealer shall not directly or indirectly make any statements or take any
actions that are or might be disparaging in any way to GE Interlogix.
9. SURVIVAL.
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Notwithstanding the termination of the Dealer Agreement, each of the
parties hereto shall be required to carry out any provision hereof
which contemplates performance subsequent to such termination; and such
termination shall not affect any liability or other obligation which
shall have accrued prior to such termination, including, but not
limited to, any liability for loss or damage on account of a prior
default. Without limiting the generality of the foregoing, all
provisions of the Dealer Agreement with respect to trademarks (Section
4), Terms and conditions of sale (Section 6), post termination rights
and duties (Section 8), indemnification and non-assertion of claims
(Section 10) and confidentiality (Section 11) shall survive the
expiration or termination of the Dealer Agreement for any reason.
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10. INDEMNIFICATION AND NON-ASSERTION OF CLAIMS.
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Dealer shall indemnify, defend and hold GE Interlogix and its legal
representatives, agents, employees, divisions, subsidiaries,
affiliates, and their successors and assigns, and all other dealers in
the GE Interlogix Authorized Dealer Program, harmless from and against
any loss, claim, liability, damage or expense (including reasonable
legal expenses and costs) that GE Interlogix or they may suffer,
sustain or become subject to, as a result of any alleged act, omission
or obligation of or by Dealer or Dealer's agents arising out of (i)the
sale, installation, maintenance and/or monitoring of Program Products
and/or GE Interlogix Standard Products; (ii) Dealer's operation of its
business pursuant to the Dealer Agreement; or (iii) any alleged breach
by Dealer of any provision of the Dealer Agreement. Dealer will
reimburse any entity entitled to be indemnified hereunder for all
expense (including reasonable legal expenses and costs) as they are
incurred in connection with investigating or defending any such action
or claim, whether or not in connection with pending or threatened
litigation in which the entity is a party. Dealer agrees not to
interpose any claim, counterclaim, cross-claim or third party claim
against GE Interlogix or any other participant in the GE Interlogix
Authorized Dealer Program in the event any claim, action or proceeding
is threatened or commenced against Dealer arising out of (i) the sale,
installation, maintenance and/or monitoring of Program Products and/or
GE Interlogix Standard Products; (ii) Dealer's operation of its
business pursuant to the Dealer Agreement; or (iii) any alleged breach
by Dealer of any provisions of the Dealer Agreement. The provisions of
this Section 11 shall inure to the benefit of and apply to GE
Interlogix and all other participants in the GE Interlogix Authorized
Dealer Program and each of their present and future officers,
directors, employees, parents, subsidiaries, affiliated entities,
entities which are under common ownership or control, successors and
permitted assigns, and shall be enforced to the fullest extent
permitted by law and be interpreted and applied to a lesser extent,
where necessary to be valid.
11. CONFIDENTIALITY.
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Dealer acknowledges and agrees that the trade secrets, financial
information, manufacturing processes, processing steps, systems,
improvements, methods, marketing information, education program
information and other documents and information relating to GE
Interlogix and/or to the preparation, manufacture and/or use of Program
Products and GE Interlogix Standard Products, together with all special
knowledge about GE Interlogix and/or Program Products and/or GE
Interlogix Standard Products, which Dealer, its employees, agents, or
subcontractors may currently possess or come to acquire during the term
of the Dealer Agreement or thereafter (hereinafter collectively
referred to as the "Confidential Information"), are the sole property
of GE Interlogix absolutely and forever. Dealer further agrees that
the Confidential Information shall for all time and for all purposes be
regarded and kept as strictly confidential trade secrets, held in trust
solely for the use and benefit of GE Interlogix, and that Dealer will
not, during the term of the Dealer Agreement or at any time thereafter,
either directly or indirectly use, duplicate, attempt to duplicate,
divulge, make available and/or disclose any Confidential Information to
any other person, entity, firm or corporation, now existing or
hereafter formed, without GE Interlogix's prior written consent.
Dealer acknowledges and agrees that a breach of the confidentially
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obligations contained herein would cause irreparable harm to GE
Interlogix. Dealer consents, acknowledges and agrees that upon any
such breach, GE Interlogix shall be entitled to and may obtain, in
addition to any other remedy or remedies which may be available to it,
an injunction or similar remedy from any court having jurisdiction with
respect thereto permanently preventing any further or subsequent breach
by Dealer and/or any of its employees, agents, subcontractors or any
other persons over whom Dealer has control. Dealer further
acknowledges and agrees that any and all Confidential Information
provided to Dealer, together with any and all copies thereof and notes
relating thereto, shall be returned to GE Interlogix upon termination
or expiration of the Dealer Agreement or demand by GE Interlogix.
Notwithstanding any of the foregoing, Dealer acknowledges and agrees
that GE Interlogix has no obligation under the Dealer Agreement to
divulge Confidential Information to Dealer.
12. MISCELLSNEOUS.
-------------
A) Waiver and Modification.
-----------------------
No waiver, modification or amendments of any term, condition or
provision of the Dealer Agreement shall be valid, binding or of any
effect unless made in writing, signed by both GE Interlogix and Dealer
and specifying with particularity the nature and extent of such waiver,
modification or amendment.
B) Consideration.
-------------
Each of GE Interlogix and Dealer hereby agrees and acknowledges that
the rights, privileges, duties and obligations created by the Dealer
Agreement constitute valuable and sufficient consideration for the
execution of the Dealer Agreement. Without limiting the foregoing,
each of GE Interlogix and Dealer further agrees and acknowledges that,
to the extent that rights, privileges, duties or obligations existing
under any:
(i) previous agreement by and between GE Interlogix and Dealer have
been released or discharged in connection with the execution of the
Dealer Agreement, the execution of the Dealer Agreement serves as
valuable and sufficient consideration for such release of discharge; or
(ii) existing Dealer Agreement by and between GE Interlogix and
Dealer have been released or discharged in connection with the renewal
of the Dealer Agreement, the renewal of the Dealer Agreement serves as
valuable and sufficient consideration for such release or discharge.
C) Benefit.
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Except as otherwise provided herein, the Dealer Agreement shall inure
to the benefit of and shall be binding upon parties hereto and their
respective heirs, executors, administrators, representatives,
successors and assigns.
D) Assignability.
-------------
Notwithstanding anything to the contrary contained in the Dealer
Agreement, Dealer shall have no right to assign, transfer, delegate,
subcontract or grant to others or any right, duty or obligation under
the Dealer Agreement or any interest in or to the Dealer Agreement.
14
E) Headings.
--------
Paragraph headings used herein are for convenience purposes only and
shall in no way be construed to be a part of the Dealer Agreement or as
a limitation of the scope of the particular sections to which they
refer.
F) Counterparts.
------------
The Dealer Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but together which shall
constitute one and the same instrument.
G) Interpretation and Severance.
----------------------------
The provisions of the Dealer Agreement shall be applied and interpreted
in a manner consistent with each other so as to carry out the purposes
and intent of the parties hereto, but if for any reason any provision
hereof is determined to be unenforceable or invalid, such provision or
such part hereof as may be unenforceable or invalid shall be deemed
severed from the Dealer Agreement, and the remaining provisions shall
be carried out with the same force and effect as if the provision or
part thereof had not been a part of the Dealer Agreement.
H) Governing Law.
-------------
The Dealer Agreement shall be governed and construed in accordance with
the laws of the State of New York and, subject to Section 12.I below,
any proceeding for the enforcement hereof shall be brought in federal
or state courts located in Minnesota. Dealer and GE Interlogix consent
and submit to the jurisdiction of said courts and agree that service of
process may be made by registered or certified mail, or in any manner
provided under New York or applicable federal law. Nothing herein
shall prevent a party hereto from joining the other party as additional
defendants or third-party defendants in any suit brought by or against
such party in another forum if any issue in said suit relates to the
matters referred to in the Dealer Agreement.
I) Arbitration.
-----------
Except for (i) actions by GE Interlogix to collect amounts owed to GE
Interlogix by Dealer pursuant to the terms and conditions of the Dealer
Agreement and any purchase orders hereunder; and (ii) claims by GE
Interlogix for equitable relief in accordance with Section 12.K below,
any dispute, controversy or claim arising out of or in connection with
the Dealer Agreement shall be settled by binding arbitration in
accordance with the rules of the American Arbitration Association,
which arbitration shall take place in the City of St. Xxxx, Minnesota.
J) Attorneys' Fees and Costs.
-------------------------
In the event GE Interlogix or Dealer shall prevail in any legal action,
including arbitration, arising under or relating to the Dealer
Agreement, the prevailing party shall be entitled to recover from the
other all of its costs and expenses, including, without limitation,
reasonable attorneys' fees.
15
K) Equitable Relief.
----------------
Dealer agrees that any breach of any of the terms or covenants of the
Dealer Agreement will cause GE Interlogix irreparable harm for which
there is no adequate remedy at law, and Dealer consents to the issuance
of any injunction or other equitable relief in favor of GE Interlogix
enjoining the breach of any such covenant or term. In no manner or
effect shall this provision of the Dealer Agreement preclude GE
Interlogix from exercising any right or remedy to which GE Interlogix
may be entitled, at law or in equity, by reason of a breach by Dealer
of any term or covenant of the Dealer Agreement.
16
ANNEX A - TERMS AND CONDITIONS OF SALE
Payment Terms.
-------------
All amounts payable under the Dealer Agreement shall be in U.S.
dollars. All prices for Product sold by GE Interlogix to Dealer are
F.O.B. shipping point. Subject to credit approval, which shall be in
GE Interlogix's sole and absolute discretion, payment terms will be NEW
30 days. Invoices will be considered past due if not paid in full
thirty (30) days from the date of invoice. If, at any time, Dealer's
account balance with GE Interlogix extends beyond thirty (30) days, GE
Interlogix may, in its sole discretion, either (i) ship product to
Dealer on a C.O.D. or C.O.D. plus basis until the account is paid in
full; or (ii) refuse to ship any product to Dealer until the account is
paid in full.
Taxes, Duties and Tariffs.
-------------------------
All prices are exclusive of any present or future federal, state, local
or other governmental taxes, duties and tariffs applicable to the sale,
transportation or use of product purchased under the Dealer Agreement,
all of which taxes, duties and tariffs shall be paid by Dealer.
Security Interest.
-----------------
GE Interlogix reserves, and Dealer hereby grants to GE Interlogix, a
purchase money security interest in each Program Product and in each GE
Interlogix Stand Product sold by GE Interlogix to Dealer in the amount
of its purchase price. Any such security interest shall be satisfied
by payment in full of the invoiced amount. Dealer agrees to execute
any and all such other documents, including financing statements, as
may be necessary for GE Interlogix to perfect such security interest.
Notwithstanding the foregoing, a copy of the Dealer Agreement may be
filed on behalf of GE Interlogix with the appropriate authorities at
any time after signature by Dealer as and for a financing statement.
Delivery, Title and Risk of Loss.
--------------------------------
All prices for product under the Dealer Agreement are F.O.B. shipping
point. GE Interlogix shall pay all ground freight charges.
Notwithstanding the foregoing, Dealer shall pay expedited freight
charges requested by Dealer. Title to product and risk of loss shall
transfer to Dealer upon delivery of product to a common carrier or
other authorized agent of Dealer.
Delivery.
--------
GE Interlogix shall use its commercially reasonable efforts to deliver
all products ordered by Dealer as soon as reasonable practicable, and
to treat Dealer no less favorably than it treats other GE Interlogix
dealers in that regard. In the event of interruption of any such
delivery due to causes beyond the reasonable control of GE Interlogix,
including but not limited to fire, labor disturbances, riots,
accidents, inability to obtain necessary materials or components, GE
Interlogix shall have the right, in its sole and absolute discretion
upon oral or written notice to Dealer, to delay or cancel such
delivery. Upon receipt of such notice, Dealer shall have the option to
change or cancel such orders.
17
Warranties.
----------
(a) GE Interlogix warrants to Dealer that products furnished hereunder
will be free from defects in material and workmanship. With respect to
each product furnished hereunder, the foregoing shall apply only to
failures to meet said warranties which appear within a period equal to
the following: two times the GE Interlogix standard warranty period in
effect for such product at the date of delivery hereunder. This
warranty extends only to the Dealer and does not extend to any other
party. GE Interlogix is not responsible for conditions or applications
over which GE Interlogix has no control. Defects or problems as a
result of such conditions or applications are not the responsibility of
GE Interlogix. Such conditions or applications include normal wear and
tear, catastrophe, fault or negligence of the user or a party other
than GE Interlogix, improper installation, application, storage,
maintenance or use of products, or other causes external to products,
or failure to conform to any applicable recommendations of GE
Interlogix. This warranty does not cover, and GE Interlogix does not
warrant, batteries or any type used in connections with other products
furnished hereunder (please refer to the battery manufacturer's
warranty, if any, which shall apply).
(b) If any product fails to meet the foregoing warranties, GE
Interlogix shall, at its option, correct any such failure, (i) by
repairing any defective or damaged part or parts of the products, or
(ii) by making available F.O.B. GE Interlogix plant or other point of
shipment, any necessary repaired or replacement parts. GE Interlogix
reserves the right to replace product under this Warranty with new or
remanufactured product. GE Interlogix will not be responsible for
labor costs of removal or reinstallation of products. The repaired or
replaced product is then warranted under the terms of this Warranty for
the balance of the term of this warranty or for ninety (90) days,
whichever is longer.
(c) For any warranty claim, the Dealer should contact Customer Service
at 0-000-000-0000 and request authorization to return the product.
Customer Service will issue the Dealer a Return Merchandise
Authorization (RMA) number. The Dealer shall return the product,
freight prepaid, to GE Interlogix together with reference to the RMA
number and a written explanation setting forth the potential defect in
reasonable detail.
(d) The preceding paragraphs set forth the exclusive remedies for
claims based on defect in or failure of products, whether the claim is
in contract, indemnity, warranty, tort (including GE Interlogix
negligence), strict liability or otherwise and however instituted.
Upon the expiration of the warranty period, a;; such liability shall
terminate and Dealer shall be a reasonable time, within thirty days
after the warranty period, to give written notice of any defects which
appeared during the warranty period. Except as set forth in the
Article entitled "Patents", the foregoing warranties are exclusive and
in lieu of all other warranties, whether written, oral, implied or
statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR PARTICULAR PURPOSE SHALL APPLY.
18
Patents.
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(a) Subject to the provisions of this Article, GE Interlogix warrants
that products furnished hereunder, and any part thereof, shall be
delivered fee of any rightful claim of any third party for infringement
of any United States patent. If notified promptly in writing and given
authority, information and assistance, and contingent upon Dealer not
taking any position adverse to GE Interlogix in connection with such
claim, GE Interlogix shall defend, or may settle, at its expense, any
suit or proceeding against Dealer so far as based on a claimed
infringement which would result in a breach of this warranty and GE
Interlogix shall pay all damages and costs awarded therein against
Dealer due to such breach. In case any product or part thereof is in
such suit held to constitute such an infringement and the use for the
purpose intended of said product intended of said product or part is
enjoined, GE Interlogix shall, at its expense and option, either
procure for Dealer the right to continue using said product or part, or
replace same with a noninfringing product or part, or modify same so it
becomes noninfringing or remove the product and refund the purchase
price (less reasonable depreciation for any period of use) and any
transportation costs separately paid by Dealer. The foregoing state
the entire liability of GE Interlogix for patent infringement by said
products or any part thereof.
(b) The preceding paragraph shall not apply to any product or part
specified by Dealer or manufactured to Dealer's design, or to the use
of any product furnisher hereunder in conjunction with any other
product in a combination not furnished by GE Interlogix as a part of
this transaction. As to any such product, part, or use in such
combination, GE Interlogix assumes no liability whatsoever for patent
infringement and Dealer will hold GE Interlogix harmless against any
infringement claims arising therefrom.
Limitation of Liability.
-----------------------
(a) GE Interlogix' liability to the Dealer on any claim of any kind,
whether as a result of breach of contract, warranty, indemnity, tort
(including negligence and strict liability) or otherwise, for any loss
or damage arising out of, connected with, or resulting from this
Agreement, or from its performance or breach thereof, or from the
design, manufacture, sale, resale, installation, repair, operation or
use of any products furnished under this Agreement, shall in no event
(except as specifically provided in the Article entitled "Patents"0
exceed the price allocable to the specific product which gives rise to
the claim. Except as to title, any such liability shall terminate upon
the expiration of the applicable warranty period.
(b) In no event, whether as a result of breach of contract, warranty,
indemnity, tort (including negligence and strict liability) or
otherwise, shall GE Interlogix or its suppliers be liable for any
special, consequential, incidental or penal damages, including, but not
limited to, loss of profit or revenues, loss of use of the products or
any associated equipment, damage to associated equipment, cost of
capital, cost of substitute products, facilities or services, down time
costs, or claims of the Dealer's customer for such damage.
19
(c) Unless otherwise agreed to in writing and signed by the President
and CEO of GE Interlogix, products sold under this Agreement are not
intended for use in connection with any nuclear facility or activity.
If resold by the Dealer for such use, GE Interlogix disclaims all
liability for any nuclear damage, injury or contamination, and the
Dealer shall indemnify GE Interlogix against any such liability,
whether as a result of breach of contract, warranty, tort (including
negligence and strict liability) or otherwise.
Returns.
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Returns of product to GE Interlogix shall be made only in accordance
with GE Interlogix's standard Repair/Return Policy, as the same may
change from time to time.
Proguard Protection Services, Inc.
Oracle #48152
September 28, 2004
ADDENDUM B (To Security Pro Contract dated November 2003 or later)
-----------------------------------------
A. ASSIGNED COLUMN PRICING: Security Pro Price Column PRO3
B. DISCOUNTED PRICING:
C. SPECIAL SALE PRICING:
D. OTHER PRICING:
ADDENDUM C (To Security Pro contract dated November 2003 or later)
-------------------------------------------
Dealer shall purchase and install Program Products (or Standard
Products, if suitable Program Product(s) are not available) with an
aggregate invoice value (excluding any amount invoiced for freight,
taxes or other third party charges) of:
Six thousand and no/100 Dollars ($6,000.00) per month
-----------------------------------------------
GES may establish in its sole discretion a new purchase commitment for
Dealer.
ADDENDUM to Security Pro contracts dated prior to November 2003.
--------------------------------------------
3. SALES GOAL.
----------
Dealer agrees that its continued participation in GE
Interlogix/Security's authorized dealer program shall be conditioned
upon achievement of certain predetermined sales performance criteria.
GE Interlogix/Security anticipates that Dealer shall purchase and
install Program Products (or Standard Products if a suitable Program
Product is not available) with an aggregate invoice value (excluding
any amounts invoiced for freight, taxes or other third party charges)
of Six thousand and no/100 Dollars ($6,000) per month during the
Initial Term (as that term is defined below) and any Renewal Term (as
that term is defined below). The consequence of a failure by Dealer to
purchase Program Products (and Standard Products if a suitable Program
Product is not available) in the minimum amounts set forth in this
Section 3 is (i) termination of this Agreement at GE
Interlogix/Security's sole option in accordance with Section 8 of the
Standard Security Pro Terms and Conditions; or (ii) a change in the
Assigned Territory and/or assignment of additional dealers of Program
Products within the Assigned Territory, at GE Interlogix/Security's
sole option; or (iii) a change in the pricing and/or sales commitment
at GE Interlogix/Security's sole option.
