1. Applicability of these Terms and Conditions
Except as expressly set forth below or as otherwise mutually agreed to by the parties in writing, these Polycom Service Terms and Conditions for Resellers together with the terms and conditions in the applicable Polycom Service Description or Statement of Work (collectively, the "Terms and Conditions") set forth the terms and conditions pursuant to which Polycom will provide Services to Polycom’s end user customers ("Customer") based upon such Service Descriptions or Statement of Work which Customer has purchased services through a Polycom authorized reseller (“Reseller”).
Unless otherwise agreed in writing by Polycom, no other terms and conditions endorsed upon, delivered with or contained in a Reseller’s purchase order, or in any other similar document, will amend, or vary the provisions of these Terms and Conditions.
In the Terms and Conditions, the following terms shall have the following meanings:
- "Major Release" means optional functionality or features of Software that may be selected at the time of purchase or at a later time, and for which Polycom charges separately.
- "Polycom" shall mean Polycom, Inc., Polycom (Netherlands) B.V., or Polycom Asia Pacific Pte Ltd (each individually referred herein as "Polycom") as applicable.
- Polycom Distributor or “Distributor” means a distributor authorized to resell Polycom Products
- "Polycom Products" means the Polycom branded products and/or product families generally made available in the marketplace.
- "PolycomConnect" means the Polycom Connect website currently located at http://partner.polycom.com/content/polycom/ppn/login.html
- "Polycom Web Site" means the Polycom public website currently located at www.polycom.com.
- "Service Period" has the meaning given to that term in Section 3 below.
- "Services" means the Polycom branded services provided under a relevant Service Description or Statement of Work.
- "Service Descriptions" means those Polycom service program offerings defined through Polycom Service Descriptions that are typically made available through Polycom Connect.
- "Software" means those Polycom Products that are software products and any software included with such Polycom Products.
- “Statement of Work” means a written description of the work to be performed by Polycom that is signed by Polycom and Customer or Polycom Reseller.
- "Terms and Conditions" shall have the meaning set forth in Section 1 of these Terms and Conditions.
- "Update" means Software for which Polycom has provided fixes or minor revisions to correct errors or defects in the existing operation of the Software in accordance with the published Product specifications, and which is limited to those updates that Polycom generally provides to its support Services customers at no charge. Updates do not include Upgrades or Major Releases.
- "Upgrade" means new releases of the Software which contains enhancements improving the functionality or capabilities of the Software, which Polycom makes generally available to its support Services customers. Upgrades do not include Major Releases.
3. Service Descriptions
a. Orders. Pursuant to Reseller’s purchase order, placed with Polycom or a Polycom Distributor, Reseller have ordered one or more available Service Descriptions related to certain Polycom Products. In order to receive Services under a Service Description pursuant to the Terms and Conditions, Reseller on behalf of Customer, must submit a purchase order to Polycom or to a Polycom Distributor for a validly quoted Service Description. Such purchase order must contain, at least, the following information for each Polycom Product listed on the purchase order: (i) the Service Description Reseller is purchasing; (ii) the model (and serial number for renewals of Service Descriptions only) of the applicable Polycom Products; (iii) the appropriate pricing information; (iv) the site location(s) where the Polycom Products will be installed, together with a contact name, contact email address, and telephone number at the location (if applicable); and (v) the Service Period (if applicable). All orders are subject to acceptance by Polycom, and no obligation, including a purchase order, shall be binding on Polycom unless and until such order is accepted by Polycom. Only those Polycom Products listed on a valid quotation applicable to Reseller’s purchase order will be covered by Service Descriptions under these Terms and Conditions. Any optional services for a Services Program available to Resellers for an additional fee will be invoiced separately with payment terms as specified within such Service Description.
b. Service Period. For those Service Descriptions that cover a Polycom Product for a defined period of time (the "Service Period"), the Service Period shall be the 12-month period (or such other period of time as specified on an Order accepted by Polycom) beginning on the date Polycom accepts Reseller’s purchase order (or such other date as specified in the Service Description) for the applicable Service Description.
c. Software Updates, Upgrades and Major Releases. For Software covered under a Service Description, Reseller or Customer may receive Updates and/or Upgrades as specified in the applicable Service Description description, if and when made available by Polycom. For the latest Updates and Upgrades available for Software, if any, please visit the Polycom Connect. Updates are provided on a fix on fail basis. That is, to obtain an available Update the Customer must call Polycom to report a specific customer product failure (identified by Polycom Product serial number) exhibiting a problem, which the Update corrects. Polycom will configure the Update according to the Software record of the registered Polycom Product. Major Releases are not provided under any Service Description and must be purchased separately in accordance with Polycom’s then-current pricing.
d. Replacement Parts. Replacement parts provided pursuant to a Service Description will be either new parts or parts equivalent in performance to new parts when used with the Polycom Product, and are warranted for ninety (90) days from shipment or the remainder of the initial warranty period, whichever is longer. Parts removed from Polycom Products for replacement will become the property of Polycom, and must be received back to the local Polycom service facility (as the same is listed on the pre-addressed return package provided by Polycom) within five (5) business days of receipt of the replacement part, or Reseller will be invoiced the full list price for the replaced part.
e. Service Description Exclusions. Service Descriptions do not cover any of the following: (i) electrical work external to the Polycom Product; (ii) repair or replacement of damage to or defects in the Polycom Product resulting from causes external to the Polycom Product, including disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning, or failure of the installation site to conform to Polycom applicable specifications; or resulting from use of the Polycom Product for other than intended purposes; or use of the Polycom Product with items not provided or approved by Polycom; or resulting from the performance of maintenance or the attempted repair of an item of a Polycom Product by persons other than Polycom employees or persons authorized by Polycom; (iii) furnishing supplies or accessories, or painting or refinishing the Polycom Product; (iv) Services in connection with the relocation of the Polycom Product, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by Polycom, including communications devices, video devices, audio devices, networks or links; and (v) Services in connection with computer viruses or conflicts involving software that is not installed or introduced by Polycom.
f. Renewal of Service Descriptions. Polycom will provide Reseller with sixty (60) days prior written notice of expiration of the Service Period for each Service Description Reseller purchases that is renewable. Reseller must provide Polycom with written notice of Reseller’s intent to cancel, renew or modify each such Service Description not less than thirty (30) days prior to expiration of each such Service Period. In the absence of such written notice, Polycom reserves the right to charge Reseller the then-current time and material rates for any Services provided after the expiration of the Service Period if Polycom does not receive a renewal purchase order prior to expiration. Furthermore, Polycom reserves the right to terminate or modify available Service Descriptions at any time in its sole discretion; provided, that any such modifications will not affect any Service Descriptions already ordered by Reseller and accepted by Polycom prior to such modifications except as mutually agreed by both parties.
g. Recertification. If Reseller wish to order a Service Description for a Polycom Product, and such system is not covered by a current Service Description, Polycom may require that the Polycom Product pass an inspection and/or re-certification by Polycom and/or that the Polycom Product be brought up to the latest software version level, both at Reseller’s expense, at Polycom’s then-current prices.
4. Services Availability. Unless otherwise provided in any Service Description or Statement of Work, Services will be provided during Polycom’s then-current published ordinary business hours Monday through Friday, exclusive of Polycom holidays.
5. Intellectual Property. Each party shall retain all right, title and interest in and to, and possession of their respective pre-existing intellectual property. Furthermore, Polycom shall retain all right, title and interest in and to, and possession of, any know-how, technical information, specifications, documents, ideas, concepts, methods, processes, techniques and inventions developed or created by or on behalf of Polycom relating to Services performed under or in relation to a Service Description or Statement of Work. Any intellectual property, know-how, information or documents supplied at any time by one party to the other shall be treated as confidential and covered by the confidentiality undertaking in Section 9 below.
6. Termination. Either party may at its option terminate any applicable Service Description or Statement of Work in whole or in part for cause: (i) if the other party fails to perform any material term or condition hereunder or under any applicable Service Description or Statement of Work, and fails to remedy such failure within thirty (30) calendar days after receipt of written notice of such default; (ii) in the event that any proceedings are commenced against the other party or such party seeks protection under bankruptcy, insolvency, or other debtor’s relief law or (iii) the other party becomes insolvent or dissolves. Furthermore, Polycom may terminate any applicable Service Description in whole or in part for cause if any person other than a Polycom employee, or designated service representative, alters a Polycom Product without Polycom's prior written consent, or in any way renders a Polycom Product unsafe (adjustments to a Polycom Product made at the direction of Polycom or as otherwise intended as set forth in the applicable Product documentation do not constitute alterations for the purposes of this Section). Each Service Description and Statement of Work is non-cancellable during the term of the applicable Service Period except as set forth in this Section 6.
7. Indemnity. Each party shall indemnify, defend and hold the other harmless from all claims, suits, losses, expenses, judgments and liabilities (including reasonable attorney’s fees) for personal injury or death to the extent caused by the negligence of the indemnifying party or its employees. The indemnitee shall give the indemnifying party prompt notice of and authority to defend or settle, any such claim and shall give, at the indemnifying party’s request and expense, reasonable information and assistance thereto.
8. WARRANTY/LIMITATION OF LIABILITY.
a. POLYCOM WARRANTS FOR NINETY (90) DAYS FROM THE PERFORMANCE OF ANY SERVICES BY POLYCOM PURSUANT TO THESE TERMS AND CONDITIONS, THAT SUCH SERVICES SHALL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. POLYCOM MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. POLYCOM MAKES NO WARRANTY THAT OPERATION OF THE POLYCOM PRODUCT SERVICED WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL POLYCOM BE LIABLE FOR ANY DELAY IN FURNISHING SERVICES. RESELLER MUST REPORT IN WRITING ANY BREACH OF THIS WARRANTY TO POLYCOM DURING THE ABOVE WARRANTY PERIOD, AND RESELLER’S EXCLUSIVE REMEDY AND POLYCOM’S ENTIRE LIABILITY FOR ANY BREACH OF SUCH WARRANTY SHALL BE TO RE-PERFORM THE SERVICES, OR IF POLYCOM IS UNABLE TO RE-PERFORM THE SERVICES AS WARRANTED, RESELLER SHALL BE ENTITLED TO RECOVER THE PRORATED FEES PAID TO POLYCOM FOR THE NONCONFORMING SERVICES.
b. EXCEPT FOR BREACHES OF CONFIDENTIALITY (SECTION 9) OR INTELLECTUAL PROPERTY (SECTION 5), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME.
c. SUBJECT TO SUB-CLAUSE b. ABOVE, EXCEPT FOR BREACHES OF CONFIDENTILIATY (SECTION 9) OR INDEMNITY OBLIGATIONS (SECTION 7), POLYCOM’S MAXIMUM LIABILITY FOR ALL OTHER DAMAGES WILL BE LIMITED TO (I) ONE (1) YEAR'S SERVICE CHARGES (IN THE CASE OF SERVICE DESCRIPTIONS WITH AN APPLICABLE SERVICE PERIOD) OR (II) AGGREGATE SERVICE FEES PAYABLE TO POLYCOM PURSUANT TO THE APPLICABLE SERVICE DESCRIPTION (IN THE CASE OF SERVICE DESCRIPTIONS WITH NO APPLICABLE SERVICE PERIOD). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND IN SUCH EVENT, THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS AND CONDITIONS SHALL BE DEEMED TO LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (i) FRAUD OR FRAUDULENT MISREPRESENTATION OR (ii) DEATH OR PERSONAL INJURY TO THE EXTENT THAT IT RESULTS FROM SUCH PARTY’S NEGLIGENCE AND SOLELY TO THE EXTENT REQUIRED BY APPLICABLE LAW.
a. Confidential Information. Each party (the "Disclosing Party") may from time to time during the Term disclose to the other party (the "Recipient") certain information regarding the Disclosing Party’s business, including its products, inventions, operations, methodologies, systems, processes, product development plans or intentions, know-how, designs, trade secrets, market opportunities, business or financial affairs, and technical, marketing, financial, employees, planning, and other confidential or proprietary information ("Confidential Information"). Polycom’s Confidential Information includes (without limitation) the function and performance of the Polycom Products, the terms of this Agreement, and any other information relating to the Polycom Products or the sale thereof. Confidential Information includes information disclosed orally, visually, or through any tangible medium.
b. Protection of Confidential Information. Recipient will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms and Conditions or to carry out the Services, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of carrying out the Services and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
c. Residuals. The Recipient shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Recipient shall not disclose the Confidential Information except as expressly permitted hereunder. The term "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The Recipient shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this Section shall not be deemed to grant to the Recipient a license under the Disclosing Party’s copyrights or patents
d. Exceptions. Recipient’s obligations under Section 9 (b) with respect to any Confidential Information of the Disclosing Party will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient at the time of disclosure by the Disclosing Party; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, the Disclosing Party’s Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in advance, in writing by the Disclosing Party, (ii) necessary for Recipient to enforce its rights under these Terms and Conditions in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that Recipient notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
10. Force Majeure. Except for the obligation to make timely payments, neither party will be liable to the other for delays or failures to perform occasioned by causes beyond its reasonable control. Such acts or events shall include but not be limited to, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, lockouts or slowdowns, factory or labor conditions, inability to obtain necessary labor, materials or manufacturing facilities, delayed issuance of export control licenses. In the event of such delays or failures to perform, any dates or times by which Polycom is otherwise scheduled to perform shall be extended automatically for a period of time equal in duration to the additional time required because of the delay or failure to perform. Each of the parties shall promptly inform the other of any event of force majeure, its expected duration and cessation, respectively.
a. Except as otherwise set forth in these Terms and Conditions, these Terms and Conditions may only be modified by a written agreement duly signed by authorized representatives of both parties, and variance from or addition to the provisions of these Terms and Conditions in any order or other written notification will be of no effect.
b. Any notices required or permitted to be given hereunder shall be in writing and effective when received by a party at the address as the receiving party has last notified to the other party by prior written notice. In the case of Polycom such address, unless otherwise notified in writing, shall be as follows:
FAO: General Counsel
6001 America Center Drive
San Jose, CA 95002
Polycom (Netherlands) B.V.
FAO: Finance Director (EMEA)
Orlyplein 10, 23rd Floor,
Polycom Asia Pacific Pte Ltd
FAO: Finance Director (APAC)
8 Shenton Way
#11-01 Temasek Tower
c. If any provision of these Terms and Conditions shall be held to be invalid, illegal, or unenforceable, the remaining terms of these Terms and Conditions shall in no way be affected or impaired.
d. The waiver by either party of a breach of any provision of these Terms and Conditions shall not be construed as a waiver of any subsequent breach.
e. Reseller may not assign any or all of Reseller’s rights or obligations under these Terms and Conditions including by purchase, merger or operation of law, without the prior written consent of Polycom, which consent shall not be unreasonably withheld. Any attempted assignment or transfer in violation of this provision shall be null and void. Polycom may assign its rights and obligations under these Terms and Conditions without prior written consent or notice.
f. In performing the Services, Polycom shall be acting as an independent sub-contractor and neither Polycom nor its personnel or representatives shall be deemed to be Reseller agents or employees. Reseller may not assign nor transfer its rights, under the Term and Conditions or a Service Description or Statement of Work, by operation of law or otherwise, without the prior written consent of Polycom. Polycom’s affiliates may participate in Polycom’s performance under these Terms and Conditions and a Service Description or Statement of Work, and Polycom may also sub-contract its obligations under, these Terms and Conditions and a Service Description or Statement of Work provided that Polycom remains liable for the performance of its affiliates and/or sub-contractors in respect thereof.
g. Save as expressly provided, no term or provision of these Terms and Conditions or a Service Description or Statement of Work shall be enforceable by a third party (being any person other than the parties and their permitted successors and assignees).
h. In performing the Services, Polycom shall be deemed to be an independent contractor and its personnel and representatives shall not act as nor be Reseller’s agents or employees. Polycom shall have complete charge and responsibility for personnel employed or engaged by Polycom.
i. Upon any expiration or termination of these Terms and Conditions, Sections 5 (Intellectual Property), 7 (Indemnity) and 8 (Warranty/Limitation of Liability) shall survive.
j. These Terms and Conditions may have been translated into various languages for the convenience of Polycom’s Customers and Resellers. While the translation is correct to the best of Polycom’s knowledge, Polycom is not responsible or liable in the event of an inaccuracy. English is the controlling language of these Terms and Conditions, and any translation has been prepared for Reseller as a courtesy only. In the event of a conflict between the English-language version of these Terms and Conditions and a version that has been translated into another language, the English-language version of these Terms and Conditions shall control.
k. These Terms and Conditions and any contract for a Service Description or Statement of Work shall be governed by (i) the laws of the State of California, in the case of Polycom, Inc. and any disputes will be subject to the exclusive jurisdiction of the Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California; (ii) English law, in the case of Polycom (United Kingdom) Limited and Polycom (Netherlands) B.V., and any disputes will be subject to the exclusive jurisdiction of the English courts; (iii) Singapore law, in the case of Polycom Asia Pacific Pte Ltd and any disputes will be subject to the exclusive jurisdiction of the courts of Singapore. The losing party in any dispute will pay all court costs and legal fees finally awarded. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Polycom shall have the option to bring a suit before the courts of Reseller’s domicile, when the claim is for payments due from Reseller.
UNLESS OTHERWISE EXPRESSLY AGREED IN A SIGNED WRITING BY THE PARTIES IN ACCORDANCE HEREWITH, THESE TERMS AND CONDITIONS, TOGETHER WITH ANY APPLICABLE SERVICE DESCRIPTION AND STATEMENT OF WORK, ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT OF TERMS AND CONDITIONS BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR TERMS AND CONDITIONS, AGREEMENTS OR COMMUNICATIONS, ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.