POLY SERVICE TERMS AND CONDITIONS FOR END USER CUSTOMERS
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 Poly Service Terms and Conditions For End User Customers together with the terms and conditions in the applicable Poly Service Description or Statement of Work (collectively, the "Terms and Conditions") set forth the terms and conditions pursuant to which Poly will provide Services to end user customers (each a "Customer") based upon such Service Descriptions or Statement of Work which Customer has purchased either directly from Poly or through a Poly Reseller.
By submitting a purchase order for Services to either Poly or to a Poly Reseller, Customer agrees to be bound by these Terms and Conditions. Unless otherwise agreed in writing by Poly, no other terms and conditions endorsed upon, delivered with or contained in an end user’s or Poly 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:
• “Customer” shall mean end-user customers that purchase Services from Poly or a Poly Reseller.
• 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 Poly charges separately.
• "Poly" shall mean Plantronics, Inc.
• "Poly Products" means the Poly branded products and/or product families generally made available in the marketplace.
• "Poly Reseller" means a value added reseller or distributor authorized to resell Poly Products.
• "PolyConnect" means the Poly Connect website currently located at http://partner.polycom.com/content/polycom/ppn/login.html.
• "Poly Web Site" means the Poly public website currently located at www.polycom.com.
• "Service Period" has the meaning given to that term in Section 4 below.
• "Services" means the Poly branded services provided under a relevant Service Description or Statement of Work.
• "Service Descriptions" means those Poly service program offerings defined through Poly Service Descriptions that are typically made available through Poly Connect.
• "Software" means those Poly Products that are software products and any software included with such Poly Products.
• “Statement of Work” means a written description of the work to be performed by Poly that is signed by Poly and Customer.
• "Terms and Conditions" shall have the meaning set forth in Section 1 of these Terms and Conditions.
• "Update" means Software for which Poly 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 Poly 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 Poly makes generally available to its support Services customers. Upgrades do not include Major Releases
3. Service Descriptions
a. Orders. Pursuant to Customer’s purchase order, placed either directly with Poly or with a Poly Reseller, Customer has ordered one or more available Service Descriptions related to certain Poly Products. In order to receive Services under a Service Description pursuant to the Terms and Conditions, Customer, or Customer’s Poly Reseller on Customer’s behalf, must submit a purchase order to Poly for a validly quoted Service Description. Such purchase order must contain, at least, the following information for each Poly Product listed on the purchase order: (i) the Service Description Customer is purchasing; (ii) the model (and serial number for renewals of Service Descriptions only) of the applicable Poly Products; (iii) the appropriate pricing information; (iv) the site location(s) where the Poly 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). Poly, or in the case of an order placed upon Customer’s Poly Reseller, the Poly Reseller will determine the pricing and payment terms associated with any Service Description which Customer purchases. All orders are subject to acceptance by Poly, and no obligation, including a purchase order, shall be binding on Poly unless and until such order is accepted by Poly, or, if earlier, Services are provided to Customer. Please note that only those Poly Products listed on a valid quotation applicable to Customer’s purchase order will be covered by Service Descriptions under these Terms and Conditions. Any optional services for a Services Description available to Customers 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 Poly 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 Poly) beginning on the date Poly accepts Customer’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, Customer may receive Updates and/or Upgrades as specified in the applicable Service Description if and when made available by Poly. For the latest Updates and Upgrades available for Customer’s Software, if any, please visit the Poly Connect. Updates are provided on a fix on fail basis. That is, to obtain an available Update the customer must call Poly to report a specific customer product failure (identified by Poly Product serial number) exhibiting a problem, which the Update corrects. Poly will configure the Update according to the Software record of the registered Poly Product. Major Releases are not provided under any Service Description and must be purchased separately in accordance with Poly’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 Poly Product, and are warranted for ninety (90) days from shipment or the remainder of the initial warranty period, whichever is longer. Parts removed from Poly Products for replacement will become the property of Poly and must be received back to the local Poly service facility (as the same is listed on the pre-addressed return package provided by Poly) within five (5) business days of receipt of the replacement part, or Customer 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 Poly Product;
(ii) repair or replacement of damage to or defects in the Poly Product resulting from causes external to the Poly Product, including disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning, or failure of the installation site to conform to Poly applicable specifications; or resulting from use of the Poly Product for other than intended purposes; or use of the Poly Product with items not provided or approved by Poly; or resulting from the performance of maintenance or the attempted repair of an item of a Poly Product by persons other than Poly employees or persons authorized by Poly;
(iii) furnishing supplies or accessories, or painting or refinishing the Poly Product;
(iv) Services in connection with the relocation of the Poly Product, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by Poly, 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 Poly.
f. Renewal of Service Descriptions. Poly will provide Customer or Customer’s Poly Reseller with sixty (60) days prior written notice of expiration of the Service Period for each Service Description Customer purchases that is renewable. Customer or Customer’s Poly Reseller must provide Poly with written notice of Customer’s intent to renew or not renew 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, Poly reserves the right to charge Customer the then-current time and material rates for any Services provided to Customer after the expiration of the Service Period if Poly does not receive a renewal purchase order prior to expiration. Furthermore, Poly 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 Customer and accepted by Poly prior to such modifications except as mutually agreed by both parties.
g. Recertification. If Customer wish to order a Service Description for a Poly Product, and such system is not covered by a current Service Description, Poly may require that the Poly Product pass an inspection and/or re-certification by Poly and/or that the Poly Product be brought up to the latest software version level, both at Customer’s expense, at Poly’s then-current prices.
4. Services Availability. Unless otherwise provided in any Service Description or Statement of Work, Services will be provided during Poly’s then-current published ordinary business hours Monday through Friday, exclusive of Poly holidays.
5. Customer Obligations.
a. Customer shall have the continuing obligation to keep all Poly Products under a Maintenance Service Description at either the then-current Software version or previous major Software version release per Poly’s published Interoperability Matrix.
b. If applicable, Customer will provide Poly personnel with access to the Poly Products and adequate working space (including heat, light, ventilation, electric current and outlets) at no charge to Poly. All Customer environments must be free from all risks to health and safety (except to the extent notified to Poly in writing and specifically accepted in writing by Poly).
c. If applicable, Customer will maintain, at Customer’s expense, the installation site and provide the necessary utility services for use of the Poly Product in accordance with Poly’s applicable published specifications.
d. Customer will be responsible for replacing, at Customer’s own expense, any and all consumable items used in connection with the Poly Products, including without limitation, bulbs and batteries.
e. Poly strongly recommends that Customer install and use a current, reputable anti-virus program in connection with any PC-based, open-architecture Poly Product, and that Customer regularly update and run such anti-virus program, especially in connection with the emergence of any new viruses and/or ‘worms’. Repair or restoration of any Poly Product damaged or ‘infected’ by viruses is not covered under these Terms and Conditions or the Service Descriptions.
f. Customer are solely responsible for backing up Customer’s data. Poly will not under any circumstances have a duty to back up Customer’s data or to restore data that is lost in the course of Poly’s provision of Services, or otherwise. Poly will not be liable for the loss of Customer’s data, whatever the reason for the loss, including without limitation as a result of Poly’s negligence. The preceding limitation applies to any cause of action, whether based in contract, tort, or any other theory. Customer are solely responsible for any additional Customer obligations or responsibilities as identified in an applicable Service Description or Statement of Work.
6. Intellectual Property. Each party shall retain all right, title and interest in and to, and possession of their respective pre-existing intellectual property. Furthermore, Poly 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 Poly 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 10 below.
7. 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, Poly may terminate any applicable Service Description in whole or in part for cause if any person other than a Poly employee, or designated service representative, alters a Poly Product without Poly's prior written consent, or in any way renders a Poly Product unsafe (adjustments to a Poly Product made at the direction of Poly 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 7.
8. 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.
9. WARRANTY/LIMITATION OF LIABILITY.
a. POLY WARRANTS FOR NINETY (90) DAYS FROM THE PERFORMANCE OF ANY SERVICES BY POLY PURSUANT TO THESE TERMS AND CONDITIONS, THAT SUCH SERVICES SHALL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. POLY MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. POLY MAKES NO WARRANTY THAT OPERATION OF THE POLY PRODUCT SERVICED WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL POLY BE LIABLE FOR ANY DELAY IN FURNISHING SERVICES. CUSTOMER MUST REPORT IN WRITING ANY BREACH OF THIS WARRANTY TO POLY DURING THE ABOVE WARRANTY PERIOD, AND CUSTOMER’S EXCLUSIVE REMEDY AND POLY’S ENTIRE LIABILITY FOR ANY BREACH OF SUCH WARRANTY SHALL BE TO RE-PERFORM THE SERVICES, OR IF POLY IS UNABLE TO RE-PERFORM THE SERVICES AS WARRANTED, CUSTOMER SHALL BE ENTITLED TO RECOVER THE PRORATED FEES PAID TO POLY FOR THE NONCONFORMING SERVICES.
b. EXCEPT FOR BREACHES OF CONFIDENTIALITY (SECTION 10) OR INTELLECTUAL PROPERTY (SECTION 6), 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 10) OR INDEMNITY OBLIGATIONS (SECTION 8), POLY’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 POLY 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"). Poly’s Confidential Information includes (without limitation) the function and performance of the Poly Products, the terms of this Agreement, and any other information relating to the Poly 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 10(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.
11. 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 Poly 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 Poly such address, unless otherwise notified in writing, shall be as follows:
FAO: General Counsel
345 Encinal St.
Santa Cruz CA 95060
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. Customer may not assign any or all of Customer’s rights or obligations under these Terms and Conditions including by purchase, merger or operation of law, without the prior written consent of Poly, which consent shall not be unreasonably withheld. Any attempted assignment or transfer in violation of this provision shall be null and void. Poly may assign its rights and obligations under these Terms and Conditions without prior written consent or notice.
f. In performing the Services, Poly shall be acting as an independent sub-contractor and neither Poly nor its personnel or representatives shall be deemed to be Customer’s agents or employees. Customer 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 Poly. Poly’s affiliates may participate in Poly’s performance under these Terms and Conditions and a Service Description or Statement of Work, and Poly may also sub-contract its obligations under, these Terms and Conditions and a Service Description or Statement of Work provided that Poly 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. The Customer acknowledges that Poly has trained personnel who perform Services and has made an investment in such personnel. Therefore, at no time during the term of a Service Description or Statement of Work or for one year thereafter, will the Customer directly or indirectly either offer employment to or hire any Poly employees who perform Services on behalf of Poly without Poly’s express prior written consent. In the event that the Customer is in breach of this provision, Poly shall have the right to invoice the Customer, and the Customer agrees to pay, a sum equal to 12 months’ salary in respect of the hired individual.
i. In performing the Services, Poly shall be deemed to be an independent contractor and its personnel and representatives shall not act as nor be Customer’s agents or employees. Poly shall have complete charge and responsibility for personnel employed or engaged by Poly.
k. Upon any expiration or termination of these Terms and Conditions, Sections 6 (Intellectual Property), 8 (Indemnity) and 9 (Warranty/Limitation of Liability) shall survive.
l. These Terms and Conditions may have been translated into various languages for the convenience of Poly’s Customers. While the translation is correct to the best of Poly’s knowledge, Poly 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 Customer 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.
m. 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 Poly, 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. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Poly shall have the option to bring a suit before the courts of Customer’s domicile, when the claim is for payments due from Customer or Customer’s Poly 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.
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