Last Modified: September 2017

 

Overview.  The All-Star Partner Program (the “Program”) offered by Dahua Technology USA Inc. (“Dahua”) is designed to support, provide benefits to and reward dealers engaged in the purchase of Dahua products from authorized U.S.- or Canadian-based Dahua distributors for resale to contractors, systems integrators and end users in the United States and Canada in compliance with Dahua’s Minimum Advertised Pricing Policy (the “MAP”).  The MAP can be found at http://www.dahuasecurity.com/en/us/map.php.  The MAP are incorporated into these Terms and Conditions by reference.

 

As a condition to registering for the Program, the company listed in the registration form above (the “Dealer”) agrees to be subject to and abide by these Terms and Conditions, including, without limitation, the MAP and the Trademark Policy.  Dealer’s participation in the Program shall begin on the date its registration is accepted by Dahua and continue for a term of one year.  Dealer’s participation shall automatically renew for successive one-year terms unless (i) Dealer provides Dahua with notice of non-renewal at least 90 days prior to the end of the then-current term or (ii) Dealer’s participation is earlier terminated by Dahua.

 

Dealer acknowledges and agrees that (i) its participation in the Program is at the sole discretion of Dahua and (ii) that the support, benefits and rewards offered or provided to Dealer by Dahua (A) shall be at Dahua’s sole discretion, (B) may be dependent upon Dealer’s sales volume of Dahua products, commitment to the Dahua brand, or other metrics or qualifications established by Dahua from time to time in Dahua’s sole discretion, and (C) may differ from the support, benefits and rewards offered or provided by Dahua to other dealers, partners, business entities or persons.

 

Dahua reserves the right at any time and for any reason (i) to exclude or terminate anyone, including Dealer, from participation in the Program, (ii) to modify the terms and conditions of, or terminate, the Program and any support, benefits and rewards associated with the Program with or without notice; and (iii) to modify the terms and conditions of the MAP and the Trademark Policy with or without notice.  The date these Terms and Conditions were last revised is identified above.  All modifications are effective immediately when Dahua posts them.  Dealer’s continued participation in the Program following the posting of revised Terms and Conditions means that Dealer accepts and agrees to the modifications.  Dealer is expected to check this webpage, the MAP and the Trademark Policy frequently so that Dealer is aware of any modifications, as they are binding on Dealer.  If Dahua denies Dealer’s registration for, excludes Dealer from, or terminates Dealer’s participation in the Program, Dealer agrees not to reapply or re-register for participation in the Program except with Dahua’s prior written consent.  Dealer’s representations and warranties, indemnification obligations and confidentiality obligations, together with the dispute resolution provisions, limitations of liability and intellectual property right restrictions, all as set forth in these Terms and Conditions, and any other provision necessary to give proper effect to the intent of these Terms and Conditions, shall survive the expiration or earlier termination of these Terms and Conditions.

 

Dealer Representations, Warranties and Covenants.  Dealer represents and warrants to Dahua that (i) it is a corporation, limited liability company or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization or formation; (ii) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (iii) it has the full right, power and authority to enter into these Terms and Conditions, to grant the rights and licenses granted under these Terms and Conditions and to perform its obligations under these Terms and Conditions; (iv) the registration of Dealer in the Program is made by the person identified as the Primary Contact above, who has been duly authorized by all necessary corporate action to make such registration; and (v) as agreed to by Dealer as part of the registration, these Terms and Conditions will constitute the legal, valid and binding obligations of, and will be enforceable against, Dealer.

 

Dealer covenants to Dahua that Dealer shall (i) only purchase Dahua products from authorized Dahua distributors based in the United States and Canada; (ii) only resell Dahua products to contractors, systems integrators and end users in the United States and Canada; (iii) comply with all applicable federal, state, provincial and local laws, rules, statutes and regulations relating to the promotion, advertising and resale of Dahua products; and (iv) at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses and permits necessary to conduct that portion of its business relating to the promoting, advertising and reselling of Dahua products.

 

Intellectual Property.  Dealer acknowledges and agrees that (i) any and all of the Intellectual Property Rights (defined below) of Dahua or its affiliates (collectively, “Dahua Entities”) are the sole and exclusive property of the Dahua Entities or their licensors; (ii) Dealer shall not acquire any ownership interest in any of the Dahua Entities’ Intellectual Property Rights by reason of participation in the Program or otherwise; (iii) any goodwill derived from the use by Dealer of the Dahua Entities’ Intellectual Property Rights inure to the benefit of the Dahua Entities or their licensors, as the case may be; (iv) if Dealer acquires any Intellectual Property Rights in or relating to any Dahua product (including any rights in any trademarks, derivative works or patent improvements relating thereto) by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to the Dahua Entities or their licensors, as the case may be, without further action by either Dealer or the Dahua Entities; and (v) Dealer shall use the Dahua Entities’ Intellectual Property Rights solely for the purposes of promoting, advertising and reselling Dahua products in accordance with these Terms and Conditions.  “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

 

Subject to the Trademark Policy, Dahua hereby grants to Dealer a non-exclusive, non-transferable, and non-sublicensable license to use the “Dahua” trademark in the United States and Canada so long as Dealer participates in the Program solely on or in connection with the promotion, advertising and resale of Dahua products in accordance with these Terms and Conditions.  Dealer is further authorized to refer to and advertise itself in the United States and Canada as a participant in the Program.  Upon Dahua’s request, Dealer shall provide to Dahua reasonable quantities of samples of advertisements and other promotional materials on which the Dahua trademark is affixed in order to allow Dahua to confirm that Dealer’s use is in compliance with the Trademark Policy.  On expiration or earlier termination of these Terms and Conditions or upon Dahua’s request, Dealer will promptly discontinue the display or use of any trademark or change the manner in which a trademark is displayed or used with regard to any Dahua product. Upon expiration or earlier termination of Dealer’s participation in the Program, Dealer’s rights under this paragraph shall cease immediately.  Other than the express license granted by these Terms and Conditions, Dahua grants no right or license to Dealer, by implication, estoppel or otherwise, to any Dahua products or any Intellectual Property Rights of the Dahua Entities.

 

Dealer shall not, and shall not permit any other person or entity to, (i) take any action that may interfere with any of the Dahua Entities’ rights in or to their Intellectual Property Rights, including their ownership or exercise thereof; (ii) challenge any right, title or interest of the Dahua Entities in or to their Intellectual Property Rights; (iii) make any claim or take any action adverse to the Dahua Entities’ ownership of their Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for trademarks of the Dahua Entities or any other trademark that is similar to any such trademark or that incorporates any such trademark in whole or in confusingly similar part; (v) use any mark anywhere that is confusingly similar to the Dahua Entities’ trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on Dahua’s products or the Dahua Entities’ trademarks; (vii) misappropriate any trademarks of the Dahua Entities for use as a domain name; (viii) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any Dahua product documentation, warranties, disclaimers, Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any Dahua product; (ix) place Dahua’s name or any trademarks of the Dahua Entities in, or directly or indirectly as part of, the trade, corporate or firm name of Dealer, (x) copy any software in or comprising any Dahua product (“Software”), in whole or in part; (xi) modify, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Software; (xii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available Software to any person or entity, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (xiii) reverse engineer, disassemble, decompile, decode or adapt any Dahua product, or otherwise attempt to derive or gain access to the source code of Software, in whole or in part; (xiv) bypass or breach any security device or protection used for or contained in any Software; (xv) use any Dahua product, alone or in combination with any other products or services, in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any person or entity, or that violates any applicable law; (xvi) use any Dahua product for purposes of benchmarking or competitive analysis of such product; developing, using or providing a competing product or service; or any other purpose that is to Dahua’s detriment or commercial disadvantage; or (xvii) export, re-export or release, directly or indirectly any Dahua product to any country, jurisdiction, person or entity to which the export, re-export or release of such product is prohibited by applicable Law or without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).

 

Identification of Dealer as Participant in the Program. Dealer hereby grants to Dahua a non-exclusive, non-transferable and non-sublicensable license to use Dealer’s trademark, name and logo in any medium worldwide so long as Dealer participates in the Program for the purpose of identifying Dealer as a dealer of Dahua products and a participant in the Program.

 

Indemnification. Dealer hereby agrees to indemnify, defend and hold harmless Dahua and its affiliates, and its and their shareholders, officers, directors, employees, successors, assigns and agents, from and against any and all demands, losses, costs, damages, settlements and liabilities (including all reasonable attorneys’ fees and court costs) of any kind whatsoever resulting from or relating to, directly or indirectly, any action or omission by Dealer.  Dealer shall not, without the prior written consent of Dahua, agree to any settlement of any claim that does not include a complete release of Dahua from all liability with respect thereto or that imposes any liability, obligation or restriction on Dahua.  Dahua may participate in the defense of any such claim through its own counsel, and at its own expense.

 

Confidentiality. All information provided or made available to Dealer by Dahua as part of or in connection with the Program is confidential (“Confidential Information”). Confidential Information does not include information that (i) is or becomes generally known to the public without Dealer violating these Terms and Conditions; (ii) is rightfully in Dealer’s possession at the time of disclosure without Dealer having any confidentiality obligations to Dahua with respect thereto; (iii) becomes known to Dealer through disclosure by sources other than Dahua without such sources violating any confidentiality obligations to Dahua; or (iv) is independently developed by Dealer without reference to or reliance upon the Confidential Information. Dealer shall protect the confidentiality of Confidential Information with at least the same degree of care as Dealer uses to protect the confidentiality of its own confidential information, but in no event less than reasonable care.  Any violation or breach of confidentiality may result in Dealer being automatically terminated from the Program.

 

No Warranty.  THE PROGRAM IS PROVIDED BY DAHUA TO DEALER “AS IS.” DAHUA DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PROGRAM.

 

Limitation of Liability.  DAHUA’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM DEALER’S PARTICIPATION IN, OR EXCLUSION OR TERMINATION FROM, THE PROGRAM SHALL NOT EXCEED THE GREATER OF (i) US$1.00 OR (ii) THE AGGREGATE AMOUNT DEALER HAS PAID TO DAHUA FOR PARTICIPATION IN THE PROGRAM IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD.

IN NO EVENT SHALL DAHUA BE LIABLE TO DEALER FOR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, DEALER’S PARTICIPATION IN, OR EXCLUSION OR TERMINATION FROM, THE PROGRAM, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE, EVEN IF REASONABLY FORESEEABLE OR IF DAHUA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

 

Dispute Resolution.  The interpretation, enforcement and validity of these Terms and Conditions shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision.  Any dispute, controversy or claim arising out of or relating to Dealer’s participation in, or exclusion or termination from, the Program shall be finally settled by binding arbitration conducted in the English language in Boston, Massachusetts under the commercial arbitration rules of the American Arbitration Association, which shall administer the arbitration.  The preceding sentence notwithstanding, Dealer acknowledges (i) that the confidentiality and intellectual property provisions of these Terms and Conditions are necessary and reasonable for the protection of the business and goodwill of Dahua, and (ii) that any breach of any of those provisions will cause Dahua substantial and irreparable injury and that money damages may not be a sufficient remedy for such breach; therefore, in the event of any such actual or threatened breach of those provisions, in addition to other available remedies, Dahua shall have the right to seek specific performance and other injunctive or equitable relief against Dealer in any court of competent jurisdiction, the preceding arbitration provision notwithstanding, without showing of irreparable harm or posting of bond or other security.

 

Miscellaneous.  These Terms and Conditions constitute the entire agreement between Dahua and Dealer and supersede any prior understandings, agreements or representations by or between them with respect to the subject matter hereof.  If, under applicable law or regulation, any provision of these Terms and Conditions is invalid or unenforceable, or otherwise directly or indirectly affects the validity of any other material provision of these Terms and Conditions, Dahua and Dealer agree that these Terms and Conditions shall endure except for such invalid or unenforceable provision.   No waiver by Dahua of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by Dahua.  No waiver by Dahua with respect to any default, misrepresentation or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder.  Dahua and Dealer shall be deemed independent contractors for all purposes hereunder.  These Terms and Conditions do not constitute a partnership, joint venture or agency between the parties, and neither Dahua nor Dealer shall hold itself out as such contrary to the terms hereof by advertising or otherwise.  Neither Dahua nor Dealer is an agent of the other party or has authority to represent the other party as to any matters, and neither party shall become bound or become liable because of any unauthorized representation, action or omission of the other party.  Dealer may not assign or transfer these Terms and Conditions or its participation in the Program in whole or in part, or any of the rights hereunder.  Any assignment made in violation hereof shall be wholly void and invalid, the assignee shall acquire no rights whatsoever, and Dahua shall not recognize, nor shall it be required to recognize, the assignment.