1
[Letterhead of POLYCOM]
VIDEOCONFERENCING AND DATA CONFERENCING PRODUCTS
NORTH AMERICAN
1997-1998 RESELLER AGREEMENT
By and Between
POLYCOM, INC.
and
ALL COMMUNICATIONS CORPORATION
<= VIDEOCONFERENCING PRODUCTS <= DATACONFERENCING PRODUCTS
This RESELLER Agreement ("Agreement") is entered as of November 21, 1997, 1997
by and between Polycom Inc., a Delaware corporation having its principal place
of business located at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000-1902 and
All Communications Corporation ("RESELLER") having its principal place of
business located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
I. APPOINTMENT
A. Appointment and Territory. Polycom hereby appoints RESELLER as a
non-exclusive RESELLER for the sale and servicing of Polycom's
products as set forth in Exhibit A. Polycom reserves the right to
sell its products to end-user customers directly or through other
distributors, OEMs, Telcos, dealers or any other resellers. RESELLER
may distribute products only to customers located and taking
delivery in the geographic sales locations as specified in Exhibit B
("Authorized Locations").
B. Reproduction Rights, Trademarks and Markings. RESELLER shall
accurately describe the product in all advertisements and written
proposals to customers and has the right to reproduce Polycom's
trademarks, trade names and logos in its efforts to promote
Polycom's products, provided that such are true reproductions, with
all of the appropriate proprietary notices, and provided that
Polycom shall have written approval rights prior to any use or
publication. RESELLER recognizes Polycom's exclusive ownership of
such marks and names and agrees not to take any action inconsistent
with such ownership. XXXXXXXX further agrees to discontinue use of
any such marks or names immediately upon expiration or termination
of this Agreement. RESELLER will not remove or make or permit any
alterations in any tags, labels, or other identifying markings on
Polycom's products.
C. Independent Contractor. The relationship established by this
Agreement between Polycom and RESELLER is that of independent
contractors. RESELLER shall not incur any obligation or commitment
on behalf of Polycom unless specifically approved in writing, in
advance, by an authorized Polycom representative. RESELLER is
responsible for all of its employees and agents and its labor costs
and expenses and will indemnify Polycom from any and all claims,
liabilities, losses, injuries, damages, or the like occasioned by
RESELLER's activities in connection with this Agreement, including,
without limitation, providing unauthorized representations to
customers or breaching any term of this Agreement.
II. TERM AND TERMINATION OF AGREEMENT
A. Term. Subject to the termination provisions contained herein, this
Agreement will continue in effect for two (2) years. Unless the
parties enter into a new Agreement prior to the termination date,
the Agreement will continue for additional one year periods until
termination is made pursuant to the terms provided hereunder.
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B. Termination.
1. Polycom shall have the right to immediately terminate this
Agreement by written notice:
a. Upon liquidation, dissolution, merger, consolidation, or
sale of substantially all of the assets of RESELLER or
upon any material change in the management or control,
direct or indirect, of RESELLER;
b. In the event that any proceedings are commenced against
RESELLER or if RESELLER seeks protection under
bankruptcy, insolvency, or debtor's relief law, and such
proceedings are not dismissed within sixty (60) days
after the date of commencement thereof;
c. If RESELLER fails to make timely payment as defined in
Section V., C.4;
d. Upon breach of any term of this Agreement by XXXXXXXX;
e. If RESELLER fails to purchase for delivery the minimum
quantity purchases as defined in Section IV.A. In this
event, Polycom may, in its discretion, elect not to
terminate the Agreement and shall have the right to
reduce the discount level.
2. Polycom may terminate this Agreement for any reason or no
reason by giving RESELLER ninety (90) days prior written
notice of the termination.
3. In the event Reseller is unable to provide service to
customers, Polycom will arrange for service to be available to
end-users who have acquired Polycom products through Reseller.
In the event Reseller elects to no longer service Polycom
end-user customers, Reseller will cooperate with Polycom to
find a means for continued support for end-user customers.
C. Effect of Termination. Upon termination or expiration of this
Agreement, all licenses and rights of RESELLER hereunder shall
terminate except the end-user licenses granted to customers and the
provisions of Sections I.C., V.C., and VI. through X. shall survive
termination. All payments shall become immediately due and payable.
Upon termination or expiration of this Agreement, RESELLER must, at
Polycom's sole option, return all unsold, unopened Polycom's
products to Polycom for credit, provided such unsold, unopened
Polycom products are received within thirty (30) days of termination
or expiration of this Agreement and are in the same condition as
that in which they were delivered to RESELLER as determined in the
sole judgment of Polycom. Any Polycom products not returned to
Polycom in accordance herewith, may be sold by RESELLER in
accordance with the terms of this Agreement. RESELLER shall return
such products freight prepaid.
III. RESPONSIBILITIES OF POLYCOM
Polycom represents, warrants and agrees:
A. Sales Materials. To make available to RESELLER reasonable sales
support materials such as product brochures, data sheets, user
guides, applications, briefs, sales notebooks, formal sales
presentations in overhead, slide or flip chart form, and other such
materials.
B. Marketing Support. To provide RESELLER with reports detailing
marketing or technical information on Polycom products, competitive
comparisons, and announcements, and to promptly respond to all
inquiries and requests for help from RESELLER. To provide RESELLER
with one thousand (1,000) sets of data sheets at no charge for each
Polycom product following the execution of this Agreement. To
further provide a cooperative marketing program pursuant to the
description and terms and conditions provided in Exhibit C.
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C. Sales, Customer Service, and Maintenance Training. To provide
training for RESELLER as specified in Exhibit D and to provide
RESELLER with telephone technical support of Polycom's product at
Polycom's expense pursuant to Exhibit E.
IV. RESPONSIBILITIES OF RESELLER
RESELLER represents, warrants and agrees:
A. Minimum Quarterly Purchase. To purchase the minimum dollar value
quantity of Polycom's products at the discount set forth in Exhibit
F within the calendar quarter of the accepted purchase order. Upon
execution of this Agreement, RESELLER shall submit firm calendar
quarterly purchase orders as set forth in Exhibit F. Each subsequent
calendar quarterly purchase order must be submitted to Polycom no
later than thirty (30) days prior to the beginning of the next
calendar quarter. Reseller must purchase at least fifty thousand
dollars ($50,000) of Polycom Videoconferencing and Dataconferencing
Products in any given quarter to remain in good standing.
B. Demo/Spare Purchase. Upon execution of this Agreement, RESELLER
shall submit a firm purchase order for at least one (1) demo unit of
each product type RESELLER will sell (second demo unit is optional)
and one (1) service unit for every RESELLER location. RESELLER will
receive a fifty percent (50%) discount for each of these units.
XXXXXXXX agrees not to sell the units for a minimum of six (6)
months from date of purchase order. If sold, XXXXXXXX agrees to
maintain a minimum of one (1) spare unit per authorized sales
location.
C. Software License.
1. To distribute Polycom products only as packaged by Polycom
with Polycom's software license agreement intact and with no
portion of the package obscured. Copies of software in
Polycom's product are licensed for distribution only and not
sold. RESELLER is not entitled to receive any source code or
documentation relating to the software contained in Polycom
products.
2. Not to decompile, disassemble, modify, or otherwise reverse
engineer the software contained in Polycom products or attempt
to learn the source code, structure, algorithms, or ideas of
such software underlying Polycom products.
D. Resale of Polycom Product Components. Not to sell or offer to sell
separately any subassemblies, parts or components of Polycom
products.
E. Sales and Service Coverage. To provide sales and service in all
Authorized Territories as defined in Exhibit B.
F. Sales and Service Training. To require its sales people, customer
service, technical service and maintenance personnel to periodically
attend the Polycom product training sessions as specified in Exhibit
D.
G. Technical Services and Support. To meet all training and service
level criteria established in Exhibits D and E and to properly
register the warranty for each and every product sold, and to
maintain a log of all service activity and to report such data
quarterly to Polycom, such that Polycom can properly track,
investigate, and resolve product service issues. RESELLER agrees to
provide Polycom, upon Polycom's written request, with information
about the customers of Polycom products, and the date of product
distribution. XXXXXXXX also agrees to stock loaner units,
replacement units, and spare parts kits for each type of product
sold to each Authorized Territory in the quantities necessary to
meet the service response times described below.
H. Service Response Time/Loaner Units. To directly respond to customer
service requests within one (1) business day of receiving a service
call and to escalate unresolvable problems to Polycom's reseller
technical assistance center, within one day. XXXXXXXX agrees to
provide an equivalent loaner unit, either at no charge
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or at a reasonable cost, to the customer by the end of the second
business day if a unit under warranty cannot be repaired in the
field. The customer may keep the equivalent loaner unit permanently,
or until their unit is repaired and returned. Units which fail
within 30 days from shipment to the customer (DOA) shall be
advance-replaced by the Reseller. Notwithstanding any other
provisions hereof, Reseller will receive an RMA number for the DOA
unit. Reseller will sent the unit to Polycom for replacement and
Polycom will exert its efforts to ship the replacement unit within
48 hours of receipt.
I. Forecast, Sales and Inventory Reports. To provide Polycom with a
report within ten (10) days of the end of each quarter reflecting
the inventory of units on-hand and each month's sales level for
Polycom product. To provide Polycom quarterly with a rolling
one-hundred and eighty (180) day forecast of product delivery
schedules, of which the first ninety (90) days is binding per the
RESELLER's released purchase orders and the second ninety (90) days
is non-binding.
J. Sales Qualifications. To provide its customers with access to a
dedicated demonstration system and a minimum of one Polycom trained
sales person at each sales location.
K. Lead Follow Up. To follow up on each and every qualified sales lead
from Polycom and report on the results of such field sales efforts,
so that Polycom can properly manage sales inquiry generation and
qualification programs thereby insuring a continued flow of
profitable sales leads for RESELLER.
L. Optional Upgrade Program. At RESELLER's sole option, to participate
in Polycom's Optional Monochrome ShowStation Upgrade Program as
described in Exhibit G.
M. General Conduct. To, at all times, conduct its business in a
professional manner and not engage in any deceptive, misleading,
illegal or unethical business practice or any practice that will
reflect unfavorably on Polycom or its products. RESELLER shall use
its best efforts to successfully market, distribute and support
Polycom's products on a continuing basis.
V. TERMS AND CONDITIONS
A. Orders and Delivery. All Polycom product orders shall be subject to
the terms and conditions of this Agreement. Purchase orders are
subject to acceptance in writing by Polycom. All orders are
non-cancelable and non-reschedulable by RESELLER unless agreed to in
writing by Polycom.
B. Delivery. The standard delivery schedule for all Polycom products
shall be ninety (90) days after acceptance by Polycom of order from
RESELLER. Orders placed for new products are subject to longer lead
times, at Polycom's sole discretion. An order will not be accepted
until RESELLER has met all payment and order terms of this
Agreement. All Polycom products shipped will have appropriate
regulatory product certification. Polycom will consider shorter
shipping lead-times on a case-by-case basis.
C. Price and Payment
1. Purchase Prices. The pricing for all orders will be subject to
the discount schedule in Exhibit F and based on the North
American Price List in Exhibit A.
2. Price Changes. Polycom shall have the right to change the
discount schedule and its pricing for Polycom products
provided that Polycom shall give RESELLER thirty (30) days
written notice before such charges shall become effective.
Polycom will accept orders at the old price until the new
price becomes effective provided that RESELLER accepts
delivery of such orders within three (3) months of order date.
3 Credit. Polycom may extend a credit line to RESELLER based on
the satisfactory credit standing of RESELLER, the amount of
such credit line to be at the sole discretion of Polycom.
Polycom reserves the right at any time to revoke any credit
extended to RESELLER for any reason.
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4. Payment. All Polycom products will be invoiced upon shipment.
Payment terms are net thirty (30) days from date of shipment,
assuming RESELLER is in good credit standing. All other orders
are COD or cash in advance, at Polycom's sole discretion.
5. Late Charges and Collections Fees. Any invoice not paid within
the net thirty (30) day payment terms will be subject to a one
and one-half percent (1 1/2%) monthly late payment charge.
This includes, but is not limited to, any unearned discounts
taken by RESELLER. In addition, XXXXXXXX agrees to reimburse
Polycom for any costs, including reasonable attorney's fees,
necessary to collect any unpaid amounts due subject to the
terms of this Agreement.
6. Taxes. RESELLER shall be responsible for the payment of local
excise, sales, use, property and other duties, customs fees,
or taxes levied with respect to units of Polycom products sold
to RESELLER hereunder.
7. Title & Security Interest. Title to the hardware shall pass to
the RESELLER and delivery is deemed to occur upon Polycom's
delivery of Polycom product to the commercial carrier Ex-Works
Polycom. In all cases, risk of loss or damage in transit shall
fall upon RESELLER, whose responsibility it shall be to file
claims with the carrier.
Polycom shall retain a security interest in all Polycom
products shipped to RESELLER until the full purchase price,
including taxes and additional charges, has been paid. Polycom
is authorized to file this Agreement together with any forms,
financing statements, or other documents necessary to evidence
and perfect Polycom's security interest. XXXXXXXX agrees to
execute any such documents and otherwise assist Polycom to
effectuate the foregoing upon Polycom's request.
D. Product Changes. Polycom reserves the right to make modifications to
Polycom products at any time but shall not be obligated to implement
such modifications in Polycom products that have previously been
delivered to RESELLER.
E. Freight. All product is shipped Ex-Works. Polycom will ship freight
collect, best way surface unless prior shipping instructions have
been provided by RESELLER. RESELLER shall pay all transportation
charges and insurance premiums.
F. Warranty and Repair. Polycom's Warranty and Liability Limitation is
attached hereto as Exhibit H. Polycom warrants only to RESELLER that
Polycom product will be free from manufacturing and materials
defects for fifteen (15) months after shipment to RESELLER, or for
twelve (12) months after delivery to RESELLER's customer, whichever
is earlier. RESELLER may only return Polycom product to Polycom
pursuant to the terms contained in Exhibits E and I. Polycom's
warranty excludes components that fail due to ordinary wear and
tear, including: lamps, pens, and batteries.
G. Force Majeure. Polycom shall not be liable for failure to deliver or
delays in delivery occasioned by causes beyond Polycom's control,
including but not limited to, strikes, lockouts, fires, embargoes,
war or other outbreaks of hostilities, inability to obtain materials
or shipping space, machinery breakdowns, delays of carrier or
suppliers, governmental acts and regulations.
VI. CONFIDENTIAL INFORMATION
RESELLER acknowledges that by reason of its relationship with Polycom
hereunder, it will have access to certain information and materials
concerning Polycom's business, plans, customers and products, including
but not limited to, information and materials contained in technical data
provided by Polycom which is confidential and of substantial value.
XXXXXXXX agrees that it shall not use in any way for its own account or
the account of any third party, any such confidential information.
RESELLER will take every reasonable precaution to protect the
confidentiality of such information consistent with the efforts exercised
by it with respect to its own confidential
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business information. In the event of termination of this Agreement,
RESELLER shall immediately return to Polycom all of Polycom's confidential
information in its possession, custody or control including all copies
thereof.
VII. QUARTERLY BUSINESS REVIEWS
Polycom and RESELLER agree to hold quarterly business reviews at a
mutually agreeable location to discuss RESELLER's business, which will
include the following: marketing plans, advertising, organization and
staff, sales levels, service, and credit.
VIII. ARBITRATION
[Deleted]
IX. INDEMNIFICATION
Polycom shall defend any suit or proceeding brought against RESELLER based
on a claim that the Polycom products or any part thereof, furnished by
Polycom under this Agreement, constitute an infringement of any existing
patent, copyright, or other proprietary right of any third party; provided
that Polycom is notified promptly in writing and given, information, and
assistance by RESELLER to defend such suit or proceeding. Polycom shall
have sole control over the defense and/or settlement of any such event and
shall indemnify RESELLER for all costs, and any damages that may be
finally awarded therein against RESELLER. In case the Polycom products or
any parts thereof, are in Polycom opinion likely to become, or do become
the subject of such a claim; or are held in any such suit or proceeding to
constitute an infringement of any patent, copyright, or other proprietary
right of any third party, or become the subject of an injunction
prohibiting the use thereof; or any settlement made requires the use of
Polycom's products to be discontinued: Polycom shall at its own option and
expense, either (1) procure for RESELLER and RESELLER's customers the
right to continue using said Polycom products; or (2) replace the same
with non-infringing Polycom products which equal or exceed the capacity
and performance of the Polycom products being replaced; or (3) modify said
Polycom products so they become non-infringing. If Polycom is not
reasonably able to replace or modify the infringing Polycom products or
procure for RESELLER and RESELLER's customers the right to continue using
them, RESELLER will return the infringing Polycom products and Polycom
will refund the purchase price less any discounts and unpaid amounts due
Polycom. Polycom's obligation set forth above will not apply as to Polycom
products that have been modified by RESELLER or RESELLER's customer
(except as approved in writing by Polycom).
Polycom shall also have no obligation as a result of any suit or
proceeding brought against RESELLER arising from the use of the Polycom
products, or any part thereof, furnished hereunder in combination with
products not supplied or specified by Polycom where the alleged
infringement relates to such combination.
X. LIMITED LIABILITY
Polycom shall not be liable under any section of this Agreement or under
any contract, negligence, strict liability or other theory for (a) any
amounts in excess of amounts paid to it by RESELLER, (b) any incidental or
consequential damages, including lost profits, or (c) cost of procurement
of substitute goods, services or technology.
XI. GENERAL
A. RESELLER acknowledges that it has not been induced to enter into this
Agreement by any representation or warranty not set forth in this
Agreement or in the written materials given by Polycom to RESELLER. This
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Agreement contains the entire Agreement of the parties, and supersedes all
existing Agreements and all previous oral, written, or other communications with
the exception of the Polycom National Account Agreement between them concerning
its subject matter.
B. No addition or modification of any part of this Agreement shall be binding
upon Polycom or RESELLER unless made in writing and signed by a duly authorized
representative of each party.
C. The paragraph headings contained herein are intended for convenience of
reference only, and shall not affect the interpretation of any provisions.
D. If any provisions of this Agreement shall be held to be invalid, illegal, or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall in no way be affected or impaired.
E. This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
F. The waiver by either party of a breach of any provision of this Agreement
shall not be construed as a waiver of any subsequent breach.
G. All notices shall be in writing and delivered by hand or sent by registered
or certified mail, return receipt requested, to addresses indicated on the face
of this Agreement or to such other addresses as the parties shall specify by
written notice.
H. No action, regardless of form, arising out of or related to this Agreement,
may be brought by either party more than one year after the cause of action has
occurred, except that an action for non-payment may be brought within one year
after the date of last payment. And in no event shall such action be brought
more than one year after termination of this Agreement between parties.
I. This Agreement may not be assigned, transferred or sub-licensed by RESELLER
in whole or in part, including by purchase, merger or operation of law, without
Polycom's written consent which shall not be unreasonably withheld.
J. In the event that Polycom has not acquired ViaVideo Communications, Inc.
("ViaVideo") on or before March 31, 1998 pursuant to the merger agreement dated
June 11, 1997, the fulfillment of the videoconferencing products only will be
assigned to ViaVideo under the terms and conditions provided herein. The
videoconferencing products are those specifically listed in Exhibit A under the
sub-titles "Videoconferencing Products" and "Videoconferencing Accessories." In
this event, all other product will remain the exclusive fulfillment of Polycom.
Once Polycom has completed the acquisition, this Section will become null and
void and no assignment of any products will occur.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first set forth.
POLYCOM, INC.: RESELLER:
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------------ ---------------------------
Xxxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxx
Chief Financial Officer Title: President and CEO
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Exhibit A
[Logo] P0LYCOM(R)
Advanced Teleconferencing Solutions
NORTH AMERICAN VIDEOCONFERENCING PRICE LIST
Effective: November 1, 1997
Model Number Description List Price (US$)
--------------------------------------------------------------------------------
Systems
--------------------------------------------------------------------------------
TBA ViewStation(TM) $5,999.00
TBA ViewStation w/384kpbs $8,999.00
NORTH AMERICAN DATA CONFERENCING PRICE LIST
Effective: November 1, 1997
Model Number Description List Price (US$)
--------------------------------------------------------------------------------
Systems
--------------------------------------------------------------------------------
0000-00000-000 ShowStation(R) IP $12,999.00
0000-00000-000 ShowStation $9,999.00
--------------------------------------------------------------------------------
Factory Options for Use with ShowStation IP
--------------------------------------------------------------------------------
0000-00000-000 LAN Interface Option 499.00
0000-00000-000 LAN Multipoint Option 999.00
0000-00000-000 VCS Interface Option 499.00
0000-00000-000 External Device Support Option 499.00
0000-00000-000 Audio/Video Support Option 1.999.00
--------------------------------------------------------------------------------
Factory Options for Use with ShowStation
--------------------------------------------------------------------------------
0000-00000-000 Enhanced Feature Package 5999.00
(Printer Support, Image Storage,
External PC Support)
0000-00000-000 VCS Interface Option $499.00
Prices subject to change without notice.
Prices are valid for all North American versions; please refer to Polycom
International availability listing for currently approved country offerings.
Prices are ex-works Polycom factory.
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Exhibit B
AUTHORIZED SALES TERRITORIES
RESELLER agrees to restrict its sales activity to the specific Polycom
Authorized Territories in which it maintains the minimum service requirements as
specified in Sections IV.F-H. XXXXXXXX agrees that only after Polycom has
certified each territory in writing will RESELLER be allowed to initiate
selling. Each Authorized Territory is defined below and may only be modified as
provided herein.
Authorized Territory
United States, Europe and South America
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Exhibit C
[Logo] P0LYCOM(R)
Advanced Teleconferencing Solutions
POLYCOM VIDEO AND DATACONFERNCING
COOPERATIVE MARKETING PROGRAM
Overview
The Polycom Cooperative Marketing Program is a program by which Polycom provides
Cooperative Marketing Credits to eligible distributors to encourage promotion of
Polycom products and services. Polycom is available to assist you in developing
effective, custom Marketing Programs that allow you to increase your coverage in
the teleconferencing market and to boost your sales of Polycom video and
dataconferencing products.
Credit Accrual Process
Polycom Cooperative Marketing Program (PCMP) Credit accrues for all video and
dataconferencing products on a monthly basis (fiscal months) at a rate of two
percent (2%) of your purchases of Polycom product, net of all discounts and
credits. Co-op for video and dataconferencing products will be SEPARATE
ACCOUNTS. The accrued funds for each product line may be used only on programs
to support that Polycom product line. To encourage prompt usage of this credit,
after the sixth month of availability, unused credit will expire. Polycom will
provide a monthly cooperative marketing credit statement that enables you track
usage of co-op funds. This report provides a monthly co-op credit balance and
can be used in planning the usage of co-op funds for future marketing campaigns.
You may also contact the Polycom Marketing Communications Department directly
for your current credit balance.
Co-op Credit Approval Criteria
100% reimbursement co-op credit is available for many forms of advertising or
promotion to end-users including, but not limited to, print ads, direct mail
pieces, seminars, radio and TV ads, and trade show signage. Polycom literature
may also be obtained at 100% reimbursement.
To apply and qualify for 100% co-op credit you must submit a sample of your ad
or marketing piece alone with a Polycom Co-operative Marketing Credit form
(sample attached) to the Polycom Marketing Communications Department PRIOR to
distribution or implementation of the program. Any programs or advertising
expenditures that are submitted for PCMP reimbursement that were not approved
prior to execution, may still be eligible for a matching disbursement from the
co-op fund, but whether and at what percentage a credit will be given will be at
Polycom's sole discretion.
The following criteria will be used to determine whether, or at what pro-rata
percentage, the submission is eligible for PCMPC.
o Promotional materials must prominently feature Polycom and Polycom
products or services. They must also include the Polycom Authorized
Distributor Logo. (See Polycom Marketing Program binder for logo
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stat sheet). The fact that Polycom manufactures its products must be
clearly presented in all promotional materials.
o Information presented in submitted promotional materials must be accurate,
verifiable, and in the sole opinion of Polycom, not cause harm to
Polycom's image.
o The first usage only of the name of Polycom products and services must be
directly preceded by the word "Polycom" (e.g., Polycom's ShowStation(R) is
the...).
o Polycom trademarks in copy text must be followed by the appropriate
trademark symbol (e.g., (R) or TM)., Trademark credit should be presented
at the bottom of the page or the end of the document (please see the
Polycom Corporate Trademark Notification Guidelines in the Marketing Guide
for more details).
o Polycom logo usage guidelines must be followed. For a copy of these
guidelines, consult your Polycom Marketing Binder or contact Polycom
Marketing Communications.
Claims Process
Once you receive the invoice(s) for your pre-approved marketing activity, submit
your paid invoices, any necessary backup documentation (i.e. sample of ads), and
a copy of your related pre-approved Polycom Cooperative Marketing Credit Form to
Polycom's Marketing Communications Department. By observing the following
guidelines, Polycom will be able to process your request more
efficiently:
o Paid invoices must be submitted within 30 days of completion of ad
placement, collateral production, or promotional event to qualify for PCMP
credit.
o Include sample of advertising material: tear sheet, media selection, issue
date, size, color and any other pertinent specification.
o Promotional materials not completely devoted to Polycom will be considered
for pro-rated credit.
o Claims that exceed your PCMP credit balance will receive partial credit.
All claims are issued only in the form of credit memos against your Polycom
account.
For more information or to request assistance in developing a custom marketing
campaign please contact your Polycom Distribution Manager, or the Polycom
Marketing Communications Department at 000-000-0000 or 000-000-0000.
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Request for Polycom Cooperative Marketing Credit
Please complete and fax this form to Polycom Market Development (408-474-2542)
along with a sample marketing piece or a marketing program outline for prior
approval before implementing your marketing program. You will receive a response
within two working days. Once you receive the invoice(s) for your marketing
materials or event, mail with tear sheets or other appropriate documentation and
a copy of this form to Polycom Market Development for credit.
================================================================================
Request Information
Organization _______________________________________________
Address _______________________________________________
_______________________________________________
_______________________________________________
City/State/Zip _______________________________________________
Telephone _______________________________________
Fax _______________________________________
Project Name: _______________________________________________
Project Description: _______________________________________________
(include issue date, _______________________________________________
size, etc.) _______________________________________________
_______________________________________________
Estimated Project Cost: ____________________________________
Name _____________________________________
Title _____________________________________
Signature _____________________________________ Date _________
================================================================================
For Polycom Use
Prior Approval by _____________________________________ Date _________
Claim Approved by _____________________________________ Date _________
Amount Approved _____________________________________ Date _________
Polycom Incurred Expense/Acct: ____________ Customer Incurred Expense______
Submitted to Acctg: ________________________________________ Date _________
================================================================================
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Exhibit D
RESELLER TRAINING PROGRAM
Polycom will hold Reseller training classes at its corporate headquarters at
regularly scheduled intervals, generally at least once per quarter. XXXXXXXX
agrees to send sales and service personnel, at Reseller's expense, to the
appropriate training sessions listed below.
Sales Training
XXXXXXXX agrees to send at least two salespersons to Polycom for product
pre-sales training within 60 days of contract execution and at least one
salesperson every six months thereafter for product update training.
Technical Support Training
RESELLER shall appoint at least one Polycom product technical expert within
reseller's organization who will be responsible for post-sales technical support
knowledge and internal Polycom product technical support training. RESELLER
shall send the appointed technical expert along with one lead telephone support
person to Polycom for post-sales technical support training within 60 days of
contract execution. Should Reseller appoint a new Polycom product technical
expert, Reseller shall inform Polycom in writing and send the newly appointed
person for technical support training within 60 days from the time of the new
appointment.
Polycom will provide Reseller with training course materials free of charge,
which the Reseller may then use for internal training of its sales and service
personnel.
ShowStation Field Repair Training
Resellers who elect to provide depot or onsite repair of ShowStation shall send
their appointed product technical expert and one lead repair technician to
Polycom for ShowStation field repair training before performing ShowStation
repairs.
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Exhibit E
TECHNICAL SUPPORT REQUIREMENTS
RESELLER shall provide all level I telephone technical support and customer
service to its end-user customers. The level I support required shall be as
follows:
o Answer questions about Polycom product applications
o Assist with product installation and configuration
o Answer questions about the operation of the product
o Perform local and remote diagnostic tests
o Guide customer through software upgrade procedures
o Diagnose failure of Polycom-specified field replaceable units (FRU's)
Level II Technical Support
Polycom will provide level II telephone technical assistance to Reseller's
authorized personnel. Polycom will not routinely provide direct telephone
support to reseller's end-user customers.
Polycom's Technical Assistance Center (TAC) is available Monday Through Friday,
6:00 AM to 6:00 PM Pacific Time, excluding U.S. holidays at 800.451.0995.
RESELLER agrees to respond to customer service requests within one business day,
and to provide all technical support and customer service to its end-user
customers. RESELLER further agrees to repair or replace any defective customer
unit within two (2) business days during the warranty period.
RESELLER agrees to repair failed Polycom products by swapping FRUs either at
customer site or RESELLER's repair depot at no charge to Polycom. Polycom will
replace RESELLERs failed FRUs that are under warranty at no charge. If Polycom
determines, in its sole discretion, that a failure mode is epidemic, Polycom may
request that RESELLER return entire Polycom products to Polycom rather than the
swapping of FRUs as described herein.
Except in the case of a Polycom-determined epidemic failure condition, if
RESELLER fails to swap failed FRUs and instead returns an entire unit, Polycom
may charge RESELLER the fee outlined in Exhibit A for this service and may
return the repaired Polycom product to RESELLER freight collect.
Page 15 CONFIDENTIAL
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Exhibit F
POLYCOM PRODUCTS VOLUME DISCOUNT SCHEDULE
Quarterly Dollar Volume Non-Stocking Stocking
--------------------------------------------------------
Over $1,500,000 40% 42%
$1,000,000 - $1,499,999 38% 40%
$600,000 - $999,999 36% 38%
$400,000 - $599,999 34% 36%
$200,000 - $399,999 32% 34%
$50,000 - $199,999 30% 32%
The discount schedule applies to quarterly purchase orders of each product
type (video and dataconferencing). DISCOUNTS ARE EARNED SEPARATELY FOR EACH
PRODUCT TYPE.
The initial quarterly discount is based on opening order. To qualify for a given
discount level for the subsequent quarter, the current quarter's shipments must
exceed the appropriate quarterly dollar volume commitment. Thus, to receive a
32% discount, RESELLER must order a minimum of $250,000 a quarter to receive
that discount for the next quarter. Any time a RESELLER orders total for the
quarter-to-date are enough to qualify for a higher discount level, RESELLER will
receive that higher discount on all additional orders for the remainder of the
current quarter and the subsequent quarter.
RESELLER must submit a purchase order for the required dollar volume to qualify
for their initial discount level, in any combination of demonstration and
inventory units, with this signed contract.
RESELLER must order a minimum of $50,000 in each quarter to remain in good
standing.
STOCKING DEALER DISCOUNT
RESELLER will receive an additional 2% discount for issuing quarterly,
non-cancelable purchase orders to Polycom for its quarterly purchase volume, and
receiving at RESELLER's designated warehouse location all ordered product during
the course of that quarter. If Polycom receives, prior to the beginning of each
quarter, a P.O. for product of a given dollar volume, including shipping
instructions for the full volume of the P.O. during the quarter, that reseller
will receive the higher "stocking" discount level on these units, as outlined
above. Units can be specified for shipment at any time during the quarter. Thus,
if RESELLER sends Polycom a non-cancelable P.O. for $250,000 worth of product
prior to the beginning of that quarter, that reseller would receive the standard
32% discount, plus an additional 2% discount, for a total discount of 34% off
that entire order and all subsequent orders for that quarter.
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Exhibit G
OPTIONAL MONOCHROME SHOWSTATION UPGRADE PROGRAM
RESELLER may, at it's sole option, participate in the exchange of existing
monochrome ShowStations for new Color ShowStation. By participating in this
voluntary program, XXXXXXXX agrees to provide a 25% discount of the price paid
by the end-user customer for a monochrome ShowStation unit, exclusive of any
options, when that end-user purchases from RESELLER a new color ShowStation at
full list price.
Polycom will then pay for shipment of the monochrome ShowStation to its
facility, and reimburse RESELLER $500. An example transaction follows:
$9,995.00 Price of monochrome ShowStation
* 25%
= $2,498.75 Refund to end-user
$12,995 List price of color ShowStation
- 2,498.75 Refund for trade-in
$10,496.25 Sale price to end-user
- 9,356.40 Cost of color ShowStation at MINIMUM Reseller discount
= $ 1,139.85
+ 500.00 Refund from Polycom
= $ 1,669.85 12.8% Margin to Reseller on Transaction.
Thus, Resellers participating in this program will make a MINIMUM of a 13%
margin on units sold under this program. Additionally, units purchased for this
program count toward RESELLER quarterly dollar volume, and help to earn higher
discounts. Polycom may also refer upgrade candidates to Resellers participating
in the program, giving RESELLER access to new customers.
RESELLER:__________________________________
NAME:______________________________________
SIGNATURE:_________________________________
TITLE:_____________________________________
DATE:______________________________________
Page 17 CONFIDENTIAL
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Exhibit H
WARRANTY AND LIABILITY LIMITATION
1. Limited Warranty and Disclaimer
Polycom, Inc. warrants its products to be free of defects in materials and
workmanship for a period of twelve (12) months from date of purchase. If any
such product should become defective within the warranty period, Polycom, Inc.
will repair or replace the product, at its sole option, provided it is returned
directly to Polycom or an authorized Polycom Service Center during the warranty
period in accordance with the provisions included in the Return Material
Authorization (RMA) Policy and Procedure. Defective product being returned must
have proof of purchase. Please call our toll free number 0.000.000.0000 for the
authorized service site nearest you. Polycom, Inc. is not responsible for costs
incurred in delivering or shipping product to or from its service site. All
replaced products become the property of Polycom, Inc.
The above warranty does not apply to damage to products resulting from accident,
misuse, service, or modification by anyone other than Polycom, Inc. or its
authorized service facilities. This warranty is limited to the original
purchaser and is not transferable.
ANY LIABILITY OF POLYCOM WITH RESPECT TO THE PRODUCT OR THE PERFORMANCE THEREOF
UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED
EXCLUSIVELY TO PRODUCT REPAIR OR REPLACEMENT AS PROVIDED ABOVE. EXCEPT FOR THE
FOREGOING, THE PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
2. Limitation of Remedies and Damages.
POLYCOM, ITS AGENTS, EMPLOYEES, DEALERS AND OTHER AUTHORIZED REPRESENTATIVES
SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE PRODUCT OR ANY OTHER
SUBJECT MATTER RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY
OR OTHER THEORY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING,
BUT NOT LIMITED TO LOSS OF INFORMATION, BUSINESS OR PROFITS.
The law of certain states does not permit limitation or exclusions of implied
warranties and consequential damages so the above limitations, disclaimers, or
exclusions may not apply to you. This warranty gives you special legal rights.
You may also have other rights which vary from state to state.
Page 18 CONFIDENTIAL
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Exhibit I
RETURN MATERIAL AUTHORIZATION (RMA) POLICY AND PROCEDURE
The following procedures must be followed to return a product for repair or
replacement. NO PRODUCTS WILL BE ACCEPTED WITHOUT AN RMA NUMBER, WHICH SHOULD BE
CLEARLY MARKED ON THE OUTSIDE OF THE PACKAGE ALONG WITH SENDERS NAME. PRODUCT
MUST BE RETURNED IN THE ORIGINAL CONTAINER. RMA numbers may be obtained by
calling the Polycom Technical Service Department during Polycom's normal
business hours. Polycom will provide an RMA within two (2) business days of
receiving such a bona fide request.
The following RMA information must also be included inside the box with the
product being returned:
a. RMA Number f. Customer Address
b. Xxxxxxxx's Name g. Model Name
c. Xxxxxxxx's Telephone # h. Serial Number & Revision of original product
d. Ship to Address (in the case of ShowStation components)
e. Carrier Instructions
Any product received without this information may be returned to RESELLER at
RESELLER's expense. A repaired unit (or replacement, at Polycom's option) will
be returned to RESELLER at Polycom's expense within twenty-one (21) days from
receipt of the defective products. In the event that RESELLER requests an
advance replacement unit before the defective unit has been received, RESELLER
will be invoiced for an additional unit. This amount will be credited upon
receipt of the defective products provided the unit is received within
twenty-one (21) days from shipment of the advanced replacement unit.
Polycom must receive the defective products within twenty-one (21) days from
shipment of the advanced replacement shipment. On the twenty-second (22nd) day
the RMA will be closed, the customer will be billed for the full value of the
unit, and the unit will be deemed the property of the RESELLER.
Requests for advanced replacements will ship within forty-eight (48) hours from
the date of the RMA and are subject to a one-hundred dollar ($100) expedite
charge.
The warranty policies for repaired products are as follows:
In Warranty Systems (All Polycom Products)
Repaired products are warranted for the remainder of the original twelve
(12) month warranty or for a period of ninety (90) days from the date of
shipment, whichever is greater. There will be no factory labor charge for
repairing or replacing defective products during the Warranty period. This
Warranty does not cover damage due to negligence, abuse, or physical
damage.
Out of Warranty Systems
Repaired products are warranted for a period of ninety (90) days from the
due of shipment. A charge will be assessed to repair (or replace at
Polycom's option) defective products which are out of warranty as set
forth in Exhibit A. This Warranty does not cover damage due to negligence,
abuse or physical damage.
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