This AGREEMENT is entered into effective as of April 16, 2004 (the
"Effective Date"), between Glowpoint, Inc. ("GlowPoint"), a Delaware corporation
having offices at 225 Long Avenue, Hillside, New Jersey 07205, and Tandberg,
Inc. ("Certified Agent"), a Delaware corporation having offices at 1860 Michael
Faraday Drive, Suite 250, Reston, Virginia 20190.
Whereas:
1. GlowPoint desires in the geographic locations in the United States,
Puerto Rico and Canada where GlowPoint does business, or may do
business in the future, (hereinafter the "Territory") to engage
Certified Agent to assist GlowPoint in marketing certain GlowPoint
services directly to Certified Agent's customers (hereinafter
"Customers"); and
2. Certified Agent desires to market GlowPoint's services to Customers and
to refer sales agents ("Referred Agents") for GlowPoint's services to
GlowPoint and represents that it has the necessary marketing
capabilities to do so.
NOW, THEREFORE, the parties agree as follows:
1.0 APPOINTMENT
1.1 GlowPoint appoints Certified Agent, and Certified Agent
accepts such appointment, to be an authorized GlowPoint
marketing representative and agent in the Territory for the
limited purposes of (i) referring Referred Agents to GlowPoint
and (ii) marketing to Customers in accordance with the terms
and conditions of this Agreement the GlowPoint IP-based video
communications services, (the "GlowPoint Services").
The GlowPoint Services are referred to herein as the "Services".
1.2 Certified Agent acknowledges and agrees that it has no
exclusive right to market the Services, and that no franchise
is granted to Certified Agent. GlowPoint expressly reserves
the right both to contract with others to market the Services
and to itself directly engage in such marketing, subject to
Section 3.5.
1.3 The relationship of the parties under this Agreement shall be,
and shall at all times remain, one of independent contractors
and not that of employer and employee, franchiser and
franchisee or joint venturers. This Agreement does not
establish or constitute Certified Agent as GlowPoint's
representative or agent for any purpose other than the
solicitation of orders, and the provision of Customer support,
for the Services on behalf of GlowPoint to the extent
authorized under Section 2. Certified Agent is not authorized
to accept orders or to make contracts in GlowPoint's name, or
to transact any business in the name of GlowPoint, or
otherwise to assume or create any obligation or responsibility
binding upon GlowPoint, in any matter whatsoever.
1.4 All persons furnished by Certified Agent in the performance of
its duties hereunder shall be considered solely Certified
Agent's employees, sales representatives or agents, and
Certified Agent shall be solely responsible for all payment of
its employees' unemployment, Social Security and other taxes,
including contributions from Certified Agent when required by
law.
2.0 CERTIFIED AGENT'S RESPONSIBILITIES
2.1 Certified Agent shall devote its commercially reasonable
efforts to promote and market the Services to Customers in the
Territory.
2.2 Those of Certified Agent's personnel designated by it to sell
the Services shall be adequately trained and knowledgeable of
the specifications, features and advantages of the Services.
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2.3 Certified Agent shall assist GlowPoint in supporting Customers
of the Services solicited by Certified Agent. Said
responsibilities shall include, but are not limited to,
soliciting orders and assisting GlowPoint in resolving any
Customer complaints.
2.4 Certified Agent is authorized to receive, but is not
authorized to accept (i.e., contractually bind GlowPoint), any
Customer subscription agreements or other offers to purchase
Services.
2.5 Certified Agent shall comply with all applicable requirements
of Federal, state and local laws, ordinances, administrative
rules and regulations relating to Certified Agent's
performance of its obligations under this Agreement. Certified
Agent represents that it is not by law or agreement with
others prohibited from entering into or performing this
Agreement.
2.6 All costs and expenses incurred by Certified Agent in
performing its services under this Agreement, including (by
way of example only) rentals, salaries, telephone, traveling
and living expenses (including, without limitation, those
incurred by Certified Agent's employees in connection with any
GlowPoint training session) and other marketing and sales
expenses shall be borne by Certified Agent and shall not be
reimbursable by GlowPoint.
2.7 CERTIFIED AGENT SHALL MAKE NO REPRESENTATIONS OR WARRANTIES
RELATING TO THE SERVICES EXCEPT AS MAY BE SET FORTH IN SALES
LITERATURE PROVIDED TO CERTIFIED AGENT BY GLOWPOINT, OR AS SET
FORTH IN THE FORMS OF ORDERS PROVIDED TO CERTIFIED AGENT BY
GLOWPOINT FOR USE IN THE SOLICITATION OF CUSTOMERS. ALL PRICES
QUOTED AND OTHER TERMS AND CONDITIONS FOR THE SERVICES
MARKETED UNDER THIS AGREEMENT SHALL BE THOSE, AND ONLY THOSE,
PROVIDED BY GLOWPOINT.
2.8 NEITHER GLOWPOINT NOR CERTIFIED AGENT SHALL MAKE ANY EXPRESS
OR IMPLIED AGREEMENTS, GUARANTEES OR REPRESENTATIONS, OR INCUR
ANY DEBT, IN THE NAME OR ON BEHALF OF THE OTHER. GLOWPOINT'S
USE OF CERTIFIED AGENT TO MARKET THE SERVICES AND TO PERFORM
THE CUSTOMER SUPPORT AND OTHER SERVICES UNDERTAKEN BY
CERTIFIED AGENT IN THIS AGREEMENT IS NOT AN IMPLIED
ENDORSEMENT OF CERTIFIED AGENT'S INDEPENDENT BUSINESS, AND NO
SUCH REPRESENTATION SHALL BE MADE BY CERTIFIED AGENT.
2.9 Certified Agent shall conduct its business with respect to the
marketing of the Glowpoint Services in a manner that reflects
favorably on GlowPoint and its Services. Certified Agent shall
not disparage GlowPoint or its products or services, nor
disparage GlowPoint's competitors or the products or services
of such competitors.
2.10 Certified Agent shall be responsible for the compatibility of
any non-GlowPoint hardware or software furnished separately by
Certified Agent to any Customer with the Services provided
under this Agreement.
2.11 Certified Agent shall use commercially reasonable efforts to
refer potential Referred Agents to GlowPoint (each, a "Lead"
and collectively the "Leads"). Certified Agent shall submit
Leads to GlowPoint on a mutually acceptable referral form.
GlowPoint reserves the right to reject any Lead, for any or no
reason, within fourteen (14) days of GlowPoint's receipt of
such Lead. No sales agent that is a direct sales agent of
GlowPoint as of the date of this Agreement shall qualify as a
Lead unless consented to by GlowPoint in its sole discretion.
Certified Agent, in consultation with Glowpoint, will use
commercially reasonable efforts to identify and sign up
Certified Agent's current distribution partners as Leads. All
Leads accepted by GlowPoint shall be set forth on a schedule
in the form of Schedule C hereto. GlowPoint shall provide an
updated version of Schedule C to Certified Agent on a
quarterly basis.