PREFERRED VENDOR AGREEMENT
THIS PREFERRED VENDOR AGREEMENT (the 'Agreement') dated as of the 9th day
of December 1966 between HFS INCORPORATED ('HFS'), a Delaware Corporation having
an office located at 6 Sylvan Way, Parsippany, New Jersey 07054 and ALL
COMMUNICATIONS CORPORATION ('Vendor'), a corporation having an office located at
1450 Route 22 West, Suite 103, Mountainside, New Jersey 07092.
W I T N E S S E T H:
-------------------
WHEREAS, HFS is the parent of the franchisors (the 'Franchisors'),
respectively, of the CENTURY 21'r', ERA'r' and Coldwell Banker'r' real estate
brokerage franchise systems (the 'Chains'); and
WHEREAS, Vendor desires to be recommended by HFS to the franchisees of the
Franchisors (the 'Franchisees') as a vendor of telephone communication systems
and voice mail equipment as more fully described in Exhibit A attached hereto
and made a part hereof (the 'Products'); and
WHEREAS, Vendor and Coldwell Banker Corporation entered into an Exclusive
Master Purchase/Maintenance Agreement, dated January 16, 1996 (the 'Purchase
Agreement').
NOW, THEREFORE, in consideration of the promises and covenants contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Preferred Vendor. (a) HFS hereby agrees that, for the term of
this Agreement as described below, Vendor shall be a non-exclusive preferred
vendor of the Products recommended by HFS to the Franchisees; provided, however,
that HFS shall not, during the term of this Agreement, enter into a preferred
vendor agreement with more than two (2) additional vendors or suppliers
('Additional Preferred Vendor') of telephone communication systems and voice
mail equipment (other than Vendor) whereby such Additional Preferred Vendors are
recommended by HFS to the Franchisees as providers of telephone communication
systems and/or voice mail equipment. Notwithstanding anything contained herein
to the contrary, the Additional Preferred Vendor shall not mean or include any
vendor or supplier of a component or element of the Products (excluding voice
mail equipment) which vendor or supplier has or shall enter into a preferred
vendor agreement or similar arrangement with HFS to be recommended or promoted
to the Franchisees as the vendor or supplier of such component or element.
Further, Vendor acknowledges that HFS through HFS's Communication Services
Division may purchase from time to time various goods and services (including
telephone systems) for resale to certain Franchisees. In no event shall HFS,
through the operations of its Communication Services Division, or the suppliers
to HFS's
Communication Services Division, be considered or construed as an 'Additional
Preferred Vendor'.
(b) HFS agrees that it will actively promote Vendor and the Products to the
Franchisees. For marketing purposes, HFS shall make available to Vendor a list
containing the names, business addresses, contact telephone numbers of the
Franchisees. From time to time during the term of this Agreement, HFS shall
provide Vendor with an updated list of such information. Notwithstanding
anything contained herein to the contrary, Vendor acknowledges and agrees that
the Products constitute a telephone communication system which system is
comprised of various components and parts (including without limitation the
voice mail component) which together, in combination, constitute such system. As
such, the Products shall be promoted and marketed to the Franchisees under this
Agreement as a system or unit and in no event shall components or elements of
the system be promoted or marketed to Franchisees under this Agreement on an
individual basis or as a component independent of such system; provided,
however, that such restriction shall not apply to voice mail equipment provided
by Vendor under this Agreement.
(c) During the Term, Vendor shall offer the Products, including
installation of the Products and maintenance service contracts relating to the
Products, to the Franchisees through programs developed in cooperation with HFS.
Vendor shall provide, at its cost, a toll-free telephone number for each Chain
for placement of orders for the Products. Vendor shall dedicate and commit
Vendor representatives to handle Franchisees' accounts, orders and customer
service inquiries. All orders of the Products shall be processed by Vendor and
Vendor shall contact the Franchisee to coordinate and schedule delivery and
installation of the Products. Vendor shall be responsible for all invoicing and
collection of payment relating to each Franchisee order. Vendor shall provide
Franchisees with training instruction for the Products purchased. Training shall
be conducted by Vendor's qualified personnel and shall include any and all
necessary training materials and literature. Vendor's current price schedule is
set forth in Exhibit A which price schedule shall remain in effect for the Term.
(d) Vendor shall, at its expense and in conjunction with a designated
representative of HFS's preferred vendor group, develop marketing materials for
use in connection with promoting the Products to the Franchisees. All such
materials shall be subject to the prior approval of HFS and shall identify
Vendor's toll-free telephone number(s). Further, within sixty (60) days from the
signing of this Agreement by the parties, HFS shall announce the the Franchisees
the appointment of Vendor by HFS as a preferred vendor of the Products.
-2-
(e) For each purchase of the Products by a Franchisee, Vendor and
Franchisee shall enter into an agreement as mutually agreed to by Vendor and
Franchisee. A form of agreement is attached hereto and made part hereof as
Exhibit B. Vendor shall negotiate the terms of the agreement in good faith.
Vendor agrees that it will provide Franchisees purchasing the Products the
warranties described in Exhibit C, which is attached hereto and made part
hereof.
Section 2. Term. The term of this Agreement (the 'Term') shall commence on
December 9, 1996 and shall terminate on December 8, 2000, unless earlier
terminated in accordance with the terms herein set forth.
Section 3. Access Fee. Concurrently with the execution of this Agreement,
Vendor shall pay to HFS, in immediately available funds, the sum of Fifty
Thousand Dollars ($50,000) as compensation to HFS for providing access to the
Franchisees. Said fee is fully earned upon payment and shall not be subject to
refund or reduction regardless of the termination of this Agreement for any
reason.
Section 4. Commissions. (a) During the Term, Vendor shall pay to HFS
commissions on the gross amount of all sales of Products (excluding labor, taxes
and shipping) made by Vendor to the Franchisees ('Gross Sales') for each
category described below, based on sales and not collections, as follows:
Percentage of Gross Sales Category
------------------------- --------
7% *All Products, excluding
voice mail
13% Voice Mail
*Commissions for the sale of the Products (excluding voice mail) made to
the National Realty Trust by Vendor (if any) shall be payable at a rate of
2% of the Gross Sales for the Products (excluding voice mail). Commissions
for the sale of voice mail equipment made to the National Realty Trust by
Vendor (if any) shall be payable at the rate stated above.
(b) In addition to the commissions in subsection (a) above and during the
Term, Vendor shall pay to HFS commissions on the gross amount of revenue from
all maintenance services contracts entered into or renewed by Vendor with the
Franchisees ('Gross Revenues'), based on sales and not collections, in the
amount of 10% of Gross Revenues.
(c) The commissions payable with respect to Gross Sales and Gross Revenues
made in each calendar quarter shall be paid not more than fifteen (15) days
after the end of such calendar quarter. Vendor shall provide HFS with each such
payment a report, certified
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as true and correct by a duly authorized representative of Vendor, detailing the
sales made to the Franchisees and the calculation of the commissions paid
thereon. In addition to the certified report submitted with each payment, Vendor
shall furnish to HFS on January 31st of each year during the Term and one (1)
year thereafter a report detailing the sales made to the Franchisees and the
calculation of the commissions paid thereon for the preceding calendar year.
This report shall be certified as true and correct by Vendor's independent
public accountants.
Section 5. Conferences; Publications. Vendor shall participate as an
exhibitor at each national conference for the Chains (with each Chain holding a
single national conference on an annual basis.) Vendor shall be obligated to
follow all rules and procedures established for each conference. Basis booth
costs are expected to be $2,500 per booth. Vendor shall be responsible for booth
costs and all other costs relating to its participation in the conferences and
booth set-up.
Section 6. Insurance and Indemnity. (a) During the Term and for a period of
not less than six (6) months after the termination of this Agreement, Vendor
will secure and maintain comprehensive general liability insurance on an
occurrence basis (including, independent contractors, contractual, personal
injury, products and completed operations, and broad form property damage) with
combined single limits of not less than One Million Dollars ($1,000,000) per
occurrence. Such insurance shall name HFS and its affiliates, and their
respective officers, directors, employees and agents as additional insureds and
shall be primary for all purposes. All policies shall be endorsed with a
statement that the coverage may not be cancelled, altered or permitted to lapse
or expire without thirty (30) days advance written notice to HFS, that the
coverage shall be primary and that any insurance carried by HFS or its
affiliates shall be non-contributory to such coverage. The names of the Vendor
and HFS as identified in the policies shall be identical to the names of the
Vendor and HFS as identified in this Agreement. If an umbrella policy is used to
satisfy any required coverage of this Section 6, such policy shall be at least
'Follow-Form' with the requirements described in this Section 6 and not limit
the coverage of any other policies used to provide coverage under this Section
6.
(b) Simultaneously with the execution of this Agreement, annually
thereafter, and each time a change is made in any insurance policy or insurance
carrier, Vendor will furnish to HFS a certificate of insurance evidencing the
insurance coverages in effect, the named insured and additional insureds, and
endorsed with a statement that the coverage may not be cancelled, altered or
permitted to lapse or expire without thirty (30) days advance written notice to
HFS. Failure to demand such certificates or other evidence of full compliance
with these insurance requirements or failure of HFS to identify a deficiency
from evidence that is
-4-
provided, shall not be construed as a waiver of obligation to maintain such
insurance.
(c) All policies required by this Agreement shall be written by insurance
carriers rated 'A' or better by A.M. Best and approved by and satisfactory to
HFS. No 'cut through' endorsements shall be acceptable. All policies shall
provide that the insurer waives any right of subrogation against HFS. By
requiring insurance as provided in this Section 6, HFS does not represent that
coverage and limits will be necessarily adequate to protect HFS and its
affiliates, and their officers, directors, employees and agents, and such limits
shall not be deemed as a limitation of Vendor's liability under this Agreement.
(d) Vendor will indemnify HFS and its affiliates against, hold each
harmless from, and promptly reimburse each for any and all payments of money
(fines, damages, legal fees, expenses) arising out of any demand, claim, tax,
penalty, administrative or judicial proceedings, or actions relating to any
claimed occurrence with respect to the Products (even where HFS's negligence is
alleged) and any act, omission or obligation of Vendor or anyone associated or
affiliated with Vendor or the Products. Vendor waives any right of recovery
against HFS for any direct or indirect loss arising out of any occurrence
relating to the Products.
In the event that HFS is required to respond to any claim, action, demand
or proceeding relating to the Products, Vendor will, at HFS's election, respond
and defend HFS and its affiliates against such claims and demands in any actions
or proceedings. In the event that Vendor fails to defend HFS when requested,
Vendor will reimburse HFS for all costs and expenses, including attorney fees,
incurred by HFS. Regardless of Vendor's obligation to indemnify and defend under
this Section, HFS has the right, through counsel of its choice, and at Vendor's
expense to control any matter to the extent said matter could directly or
indirectly adversely affect HFS. The obligations of Vendor pursuant to this
subsection (d) shall survive termination of this Agreement.
Section 7. Books and Records; Audit. Vendor shall keep accurate and
complete records of the Gross Sales and Gross Revenues made by Vendor for
Franchisee accounts. All such records and all accounting systems with respect
thereto shall be available for inspection, copy and audit by HFS or its
representatives on reasonable notice to Vendor during normal business hours
throughout the Term of this Agreement and for one (1) year thereafter. Vendor
shall fully cooperate with HFS in such inspection and audit. Neither HFS's
acceptance of any information nor HFS's inspection or audit of Vendor's records
shall waive HFS's right later to dispute the accuracy or completeness of any
information supplied by Vendor. In the event any such audit established an
underpayment of commissions, Vendor shall pay the amount of the deficit within
five
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(5) business days of notification of such deficiency. In the event such audit
identifies an overpayment of commissions, such overpayment shall be a credit
against future commissions to become due from Vendor to HFS. If an audit
establishes an underpayment of commissions greater than five percent (5%) of the
total commissions then due and payable to HFS, Vendor shall pay for the costs
and expenses of such audit. In the event of a dispute over the result of any
such audit, the amount so disputed shall be deposited by the party to be charged
with an escrow agent acceptable to both parties and pursuant to an escrow
agreement acceptable to both parties and such escrow agent until such time as
the dispute is resolved.
Section 8. Acknowledgements. (a) Vendor acknowledges that HFS and its
affiliates are the franchisors, and not the owners or operators of real estate
brokerage offices and that, as such, HFS does not purchase the Products for its
own use and cannot compel or guarantee any level of sales of the Products.
Vendor further acknowledges that, although HFS will recommend the purchase of
the Products from Vendor to the Franchisees, each Franchisee will be making an
independent buying decision which may or may not be affected by HFS's
recommendation of the Products. Neither HFS nor any Franchisor shall be
responsible for any amounts owed to Vendor by any Franchisee.
(b) The parties acknowledge that Vendor and Coldwell Banker Corporation
entered into the Purchase Agreement, dated January 16, 1996, for the sale of
telecommunication systems and related services and that subsequent to the
execution of the Purchase Agreement HFS acquired Coldwell Banker Corporation. As
a result of the acquisition, Coldwell Banker Corporation has become and remains
a subsidiary of HFS. Upon the execution of this Agreement by HFS and Vendor, HFS
(acting on behalf of Coldwell Banker Corporation ) and Vendor agree that the
Purchase Agreement shall automatically terminate without penalty or further
notice. Notwithstanding the termination of the Purchase Agreement, vendor
acknowledges and agrees to honor all its obligations and responsibilities under
the Purchase Agreement which obligations and responsibilities are existing or
outstanding as of the date of termination of the Purchase Agreement, including
without limitation, any warranty and maintenance service obligations and
responsibilities.
Section 9. Termination. (a) When fully executed, this Agreement will
constitute a binding obligation of both parties which may not be terminated by
either party except that either party may terminate in the event of a material
breach of the terms of this Agreement by the other party. In the event of a
material breach as set forth above, the breaching party shall be given written
notice of such breach and the opportunity to cure such breach within thirty (30)
days of the date of such notice (ten (10) days in the case of a payment
default). Failure to cure such breach within the applicable period stated above
shall result in
-6-
termination of the Agreement without the necessity of any further notice.
(b) In addition to the parties' right of termination set forth in
subsection (a) above, this Agreement may be terminated by HFS as follows. If HFS
receives a bona fide offer in writing from a supplier for the services provided
by Vendor under this Agreement at pricing that is at least five percent (5%)
less than the pricing provided herein, HFS may elect to notify Vendor of the
receipt of such a written bona fide offer, including the terms thereof. Within
fifteen (15) days after such notice, Vendor may offer to HFS the same pricing
and services offered by such other supplier. If Vendor does not make such
offer to HFS within the fifteen (15) days, HFS may, in its sole discretion,
terminate this Agreement upon thirty (30) days written notice to Vendor.
Section 10. Representations. (a) Each party has full power and authority
and has been duly authorized, to enter into and perform its obligations under
this Agreement, all necessary approvals of any Board of Directors, shareholders,
partners, co-tenants and lenders having been obtained. The execution, delivery
and performance of this Agreement by each party will not violate , create a
default under of breach of any charter, bylaws, agreement or other contract,
license, permit, indebtedness, certificate, order, decree or security instrument
to which such party or any of its principals is a party or is subject. Neither
party is the subject of any current or pending dissolution, receivership,
bankruptcy, reorganization, insolvency, or similar proceeding on the date this
Agreement is executed by such party and was not within the three years preceding
such date. The persons signing this Agreement on behalf of each party personally
represent and warrant to the other party that they are authorized to execute
this Agreement for and on behalf of such party and have full authority to so
bind such party.
(b) All written information provided to HFS about Vendor, the principal
owners of Vendor or the finances or any such persons or entities, was or will be
at the time delivered, true, accurate and complete, and such information
contained no misrepresentation of a material fact, and does not omit any
material fact necessary to make the information disclosed not misleading
under the circumstances in which it is disclosed.
Section 11. Trademarks. Vendor specifically acknowledges that this
Agreement does not confer upon Vendor any interest in or right to use any
trademark, service mark or other intellectual property right of HFS, the
Franchisors or their affiliates (collectively referred to as the 'Intellectual
Property Rights') in connection with the Products unless Vendor receives the
prior written consent of HFS which consent HFS may grant or withhold in its sole
discretion. Vendor further agrees that upon termination of this Agreement,
Vendor shall immediately cease and discontinue all use
-7-
of the Intellectual Property Rights. Further, if Vendor wishes to utilize
the Intellectual Property Rights in advertising or promotional materials, it
must submit such materials to HFS for final approval before utilizing them. In
no event may Vendor or any affiliated or associated person or entity utilize the
Intellectual Property Rights in connection with any products or services other
than the Products. Vendor further acknowledges that this Agreement does not
create or grant any rights in Vendor to use any Intellectual Property Rights
owned or controlled by any Franchisee or its affiliates, nor does HFS have any
right to grant any such rights.
Section 12. Relationship to Parties. Vendor is an independent contractor.
Neither party is the legal representative or agent of, or has the power to
obligate (or have the right to director supervise the daily affairs of) the
other or any other party for any purpose whatsoever. HFS and Vendor expressly
acknowledge that the relationship intended by them is a business relationship
based entirely on and circumscribed by the express provisions of this Agreement
and that no partnership, joint venture, agency, fiduciary or employment
relationship is intended or created by reason of this Agreement.
Section 13. Assignments. This Agreement may be freely assigned by HFS
without recourse. This Agreement may not be assigned by Vendor without the
consent of HFS, which consent shall not be unreasonably withheld.
Section 14. Confidentiality. (a) Vendor acknowledges that any information
regarding this Agreement, the transactions contemplated herein, and any
information conveyed to or obtained by Vendor in connection with this Agreement,
including, but not limited to information regarding Franchisees, is confidential
and proprietary to HFS and the Franchisors (the 'Confidential Information').
Vendor agrees that in no event shall Vendor disclose, transfer, copy, duplicate,
or publish any Confidential Information to any third party without the prior
written consent of HFS, which consent may be withheld in HFS's sole discretion;
provided, however, that no such consent shall be required for disclosures to
Vendor's attorneys, accountants, securities underwriters, and associated lending
institutions which disclosures are made during the ordinary course of Vendor's
business and which disclosures shall be treated as confidential information by
such parties. Vendor further agrees that it shall not utilize any Confidential
Information for any purpose whatsoever other than for the purpose of performing
its obligations under this Agreement. Vendor shall only make available the
Confidential Information to its employees on a need-to-know basis and shall
advise such employees on a need-to-know basis and shall advise such employees of
the restriction set forth with respect to the use of such Confidential
Information. Vendor shall be responsible for the unauthorized disclosure of any
Confidential Information by its employees. Notwithstanding anything contained
herein to the
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contrary, Vendor may furnish, in good faith, information pertaining to this
Agreement to the applicable authorities or agencies to the extent necessary to
meet the requirements of (i) any applicable Federal and state security laws and
regulations or (ii) any applicable stock exchange organization or association
of securities dealers in connection with the offering of shares of stock of
Vendor; provided, however, that Vendor provides HFS with a copy of such
information in advance of such disclosure and Vendor reasonably attempts, in
good faith, to secure from such parties their agreement to maintain such
information in a confidential manner.
(b) Vendor acknowledges that the Confidential Information is a valuable
asset of the originating party and that the breach of this Section 14 would
cause the originating party irreparable harm for which there is no adequate
remedy at law. Accordingly, in the event of a breach or alleged breach of this
Section 14, the originating party or parties shall be allowed injunctive relief
and any other equitable remedies in addition to remedies afforded by law.
(c) The obligations of Vendor pursuant to this Section 14 shall survive the
termination of this Agreement.
Section 15. Partial Invalidity. Should any part of this Agreement, for any
reason, be declared invalid, such decision shall not affect the validity of any
remaining portion of this Agreement.
Section 16. No Waiver. No failure or delay in requiring strict compliance
with any obligation of this Agreement (or in the exercise of any right or remedy
provided herein) and no custom or practice at variance with the requirements
hereof shall constitute a waiver or modification of any such obligation,
requirement, right or remedy or preclude exercise of any such right or remedy or
the right to require strict compliance with any obligation set forth herein. No
waiver of any particular default or any right or remedy with respect to such
default shall preclude, affect or impair enforcement of any right or remedy
provided herein with respect to any subsequent default. No approval or consent
of HFS shall be effective unless in writing and signed by an authorized
representative of HFS, and HFS's consent or approval may be withheld for so long
as Vendor is in default of any of its obligations under this Agreement.
Section 17. Notices. Notices will be effective hereunder when and only when
they are reduced to writing and delivered, by next day delivery service, with
proof of delivery, or mailed by certified or registered mail, return receipt
requested, to the appropriate party at its address stated below or to such
person and at such address as may be designated by notice hereunder. Notices
shall be deemed given on the date delivered or date of attempted delivery, if
service is refused.
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Vendor: HFS:
- ------- ----
ALL COMMUNICATIONS CORPORATION HFS INCORPORATED
1450 Route 22 West, Suite 103 3838 East Van Buren
Mountainside, NJ 07092 Phoenix, AZ 85008
Attn: President Attn: Vice President
Reservations
Section 18. Miscellaneous. The remedies provided in this Agreement are not
exclusive. This Agreement will be construed in accordance with the laws of the
State of New Jersey, except for New Jersey's conflict of laws principles. Vendor
consents to the personal jurisdiction of the courts of the State of New Jersey
and the United States District Court for the District of New Jersey and further
waives objection to venue in any such court. This Agreement is exclusively for
the benefit of the parties hereto and may not give rise to liability to a third
party. No agreement between HFS and anyone else is for the benefit of Vendor.
Neither party will interfere with contractual relations of the other. The
section headings in this Agreement are for convenience of reference only and
will not affect its interpretation.
This Agreement, together with all instruments, exhibits, attachments and
schedules hereto, constitutes the entire agreement (superseding all prior
agreements and understandings, oral or written including without limiting the
Purchase Agreement) of the parties hereto with respect to the subject matter
hereof and shall not be modified or amended in any respect except in writing
executed by all such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first stated above.
HFS INCORPORATED
BY: [SIGNATURE]
---------------------------------
Vice President - Reservations
ATTEST: [SIGNATURE]
-----------------------
(Assistant) Secretary
ALL COMMUNICATIONS CORPORATION
BY: [SIGNATURE]
---------------------------------
Vice President
ATTEST: [SIGNATURE]
-----------------------
(Assistant) Secretary
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EXHIBIT A
DESCRIPTION OF PRODUCTS & RELATED SERVICES
WITH PRICE SCHEDULE
A description of the Products (hardware and software) with pricing is set
forth on Schedule A of this Exhibit A (Pages A-1 through A-4). In addition to
the pricing identified in Schedule A, the National Realty Trust shall be
entitled to a five percent (5%) discount off all purchases of the Products
(excluding voice mail equipment and installation services).
As part of the Products provided under this Agreement, Vendor shall provide
installation services. Such services and the cost relating thereto are set forth
in Schedule B of this Exhibit A (Page B-1).
Vendor shall offer to the purchasing Franchisees its standard maintenance
service contract to commence after the applicable warranty period for the
Products (See Exhibit C). A description of the maintenance service contracts
(including maintenance service contract forms) and the cost relating thereto are
set forth in Schedule C of this Exhibit A (Pages C-1).
EXHIBIT A (SCHEDULE A)
HARDWARE/SOFTWARE ANNEX/PRICE LIST
CABINETS
MODEL# DESCRIPTION PRICE
VB-43030 DBS 40 Port Cabinet $ 728.00
VB-43050 DBS 72 Port Cabinet $1,196.00
VB-43060 DBS 96 Port Cabinet $1,651.00
COMMON EQUIPMENT CARDS
VB-43412 CPC-AII $ 865.00
VB-43411 CPC-B $1,600.00
VB-43420 SCC-A $ 199.00
VB-43421 SCC-B $ 351.00
TRUNK CARDS
VB-43510 4 Circuit Loop Start Trunk Card $ 249.00
VB-43511A 8 Circuit Loop Start Trunk Card $ 377.00
VB-43531 8 Circuit Ground Start Trunk Card $ 509.00
VB-43541 8 Circuit Direct Inward Dial (DID)
Trunk Card $1,274.00
STATION CARDS
VB-43611 8 Circuit Digital Station Card $ 189.00
VB-43621A 8 Circuit Analog Station Card $ 259.00
STATION EQUIPMENT
VB-41200 Digital Single Line Telephone-Gray $ 101.00
VB-42210 16 Button Standard - Gray $ 120.00
VB-42210B 16 Button Standard - Black $ 120.00
VB-42211 16 Button Speakerphone-Gray $ 160.00
A-1
VB-43220 22 Button Standard - Gray $ 154.00
VB-43223 22 Button Display - Gray $ 184.00
VB-4322B 22 Button Display - Black $ 184.00
VB-43225 22 Button Large Screen Display
Gray $ 297.00
VB-43225B 22 Button Large Screen Display
Black $ 297.00
VB-43230 34 Button Standard - Gray $ 182.00
VB-43233 34 Button Display - Gray $ 292.00
VB-43233B 34 Button Display - Black $ 292.00
VB-43310 24 Button Expansion Module-Gray $ 159.00
VB-43320 72 Button DSS/BLF - Gray $ 268.00
VB-43320B 72 Button DSS/BLF - Black $ 296.00
STATION EQUIPMENT 44000 SERIES PHONES
VB-42210G 16 Button Standard-Gray $ 124.00
VB-42210B 16 Button Standard-Black $ 124.00
VB-42220G 22 Button Standard-Gray $ 154.00
VB-42220B 22 Button Standard-Black $ 154.00
VB-44223G 22 Button Display-Gray $ 188.00
VB-44223B 22 Button Display-Black $ 188.00
VB-44225G 22 button Large Screen Display-Gray $ 301.00
VB-44225B 22 Button Large Screen Display-Blk $ 301.00
VB-44230G 34 Button Standard-Gray $ 186.00
VB-44230B 34 Button Standard-Black $ 186.00
VB-44233G 34 Button Display-Gray $ 296.00
VB-44233B 34 Button Display-Black $ 296.00
VB-44310G 24 Button Expansion Module-Gray $ 159.00
VB-44310B 24 Button Expansion Module-Black $ 159.00
VB-44320G 72 Button DSS/BLF Gray $ 268.00
VB-44320B 72 Button DSS/BLF Black $ 268.00
VB-44100G Analog Adapter-Large Screen Display
Gray $ 95.00
VB-44100B Analog Adapter-Large Screen Display
Black $ 95.00
A-2
MODEL # DESCRIPTION PRICE
INTERFACE UNIT
VB-43431 DTMF Receiver $ 229.00
VB-2089P SLT Ringer Box $ 110.00
VB-43702 Off Premise Extension (OPX) Adaptor $ 195.00
VB-43708 Voice Announce Unit $ 481.00
VB-43701 Doorphone Adapter $ 149.00
VB-43706 Remote Administration Interface
(RAI)A $ 69.00
VB-43707 Remote Administration Interface
(RAI)B $ 150.00
VB-43705 Doorphone Unit (DPH) $ 42.00
VB-43703 Power Fail Transfer Unit (PFTU) $ 64.00
VB-43110 Cable Connection Kit $ 995.00
VB-43120 Trunk Expansion Connector $ 60.00
VB-43121 Extension Expansion Connector $ 50.00
VB-43130 Battery Back-Up Unit $ 110.00
COMPUTER TELEPHONY INTERFACES
VB-43941 TSAPI Interface Kit $1,820.00
VB-43720 TAPI Interface Kit $ 215.00
T-1 TRUNK INTERFACE
VB-43561 T-1 Trunk Card $2,847.00
VB-43562 T-1 MDF Connector $ 240.00
VB-43563 T-1 Synchronization Unit $ 637.00
VB-43564 T-1 Cable $ 81.00
CALLER I.D. INTERFACE
VB-43551 Caller I.D. Interface Board $ 533.00
A-3
DBS 32 SYSTEM PRICING
VB-42050 DBS 32 Cabinet $ 403.00
VB-42450 CPC-S $ 266.00
VB-42451 CPC-M $ 533.00
VB-42651 208 Hybrid Expansion Card $ 332.00
VB-43711 Doorphone Adapter $ 150.00
VB-43709 SLT Adapter $ 266.00
VB-42431 DTMF Receiver (MFRU) $ 133.00
VB-42712 Serial Interface Unit $ 199.00
VB-43130 Battery BackUp Unit $ 110.00
VOICE MAIL PRICING
Configuration A2 Port 30 Hour $4,800.00
Configuration A4 Port 30 Hour $5,852.00
Configuration B6 Port 100 Hour $6,780.00
Configuration B8 Port 100 Hour $7,432.00
Configuration B12 Port 100 Hour $9,332.00
A-4
EXHIBIT A (SCHEDULE B)
NATIONAL INSTALLATION COST SCHEDULE FOR PANASONIC DBS
AND VOICE MAIL SYSTEMS
*Reuse existing cable $75.00 per station including RJ11C jacks
*New cable run $90.00 per station including RJ11C jacks
Installation, programming common equipment.
72 Port Cabinet $150.00
96 Port Cabinet $200.00
192 Port Cabinet $350.00
Training 1 Session N/C
Additional Training 1/2 day $160.00
Add on work same as above
Post installation programming $60.00 per hour
Installation Cost schedule Voice Processing System
Voice Mail System 2 Port $400.00
4 Port $400.00
6 Port $600.00
8 Port $600.00
12 Port $800.00
B-1
[LETTERHEAD]
Page of
QUOTATION/PURCHASE AGREEMENT
Date: Quotation No.
Company PO No: Quotation Expires on:
Company Account No: Taxable:
Salesperson: Tax Exemption No:
SOLD TO: SHIPPED TO:
Customer (Company)
Phone:
Special Remarks: Requested Delivery Date: Shipping Method:
EXHIBIT A (SCHEDULE C)
ACC hereby quotes to Company the following:
- -----------------------------------------------------------------------------------------------
Item Quantity Model No. Description Unit Price Amount
- -----------------------------------------------------------------------------------------------
MAINTENANCE AGREEMENT
All Communications Corporation
will service and maintain
your telephone system for
the price of $3.50
per phone per month. This
rate will not increase by
more than 5% per year for
the next year.
Your system is currently
equipped with ______ phones
leaving a monthly charge of
$______ per month and an annual
charge of $_____ per year plus
tax.
Under this Maintenance
Agreement, ACC agrees to:
Promptly respond to all
maintenance calls. Isolate the
trouble to the line or
equipment. Repair or replace the
equipment. Ensure the problems
are resolved by Telco carrier.
Check all Battery Back-Up System
annually
*Excluded from this agreement
are 'Acts of God' such as
lightning, flood, etc. as well
as Fire, Liquid Damage, Abuse of
Negligence
This agreement incorporates by
reference all terms and
conditions referred to in
Section 6 of the
Purchase/Maintenance Agreement.
(illegible copy here)
- -----------------------------------------------------------------------------------------------
Company: All Communications:
By: By:
- --------------------------------------- ---------------------------------------
(Authorized Signature) (Authorized Signature)
Print Name: Print Name:
- --------------------------------------- ---------------------------------------
Print Title: Date: Print Title: Date:
- --------------------------------------- ---------------------------------------
C-1
EXHIBIT B
PRODUCTS PURCHASE ORDER FORM
BETWEEN
VENDOR & FRANCHISEE
EXHIBIT B
TERMS AND CONDITIONS
PURCHASE/MAINTENANCE AGREEMENT
All Communications Corporation ('Seller'), with offices at 1450 Route 22 West,
Mountainside, N.J. 07092 and ___________________________________, ('Customer'),
with offices at _______________________________________________________________
Agree as follows:
1. PURCHASE OF THE SYSTEM PRICE AND PAYMENT TERMS
Seller agrees to sell and Customer agrees to buy the 'System' consisting of the
hardware ('Hardware') and ('Software') listed in the Hardware/Software
Annex.
The purchase price for the System and the services described in this
'Agreement' is the amount specified as the 'Purchase/Price' in the box
below. The initial installment and all subsequent installments of the
Purchase Price will be due and payable as described in the attached Payment
Schedule Annex. Seller's obligations under this Agreement are subject to
Seller's credit approval of Customer.
The initial installment of the Purchase Price must be paid to Seller by
Customer at the time Customer signs and delivers this Agreement to Seller.
All other installments will be invoiced upon the occurrence of the applicable
event that makes the installment due and payable. All other charges authorized
by this Agreement or by subsequent authorization of Customer will be invoiced
when incurred, or when specified in other sections of this Agreement, and
will be due and payable 30 days from the invoice date.
The Purchase Price does not include applicable taxes. In addition to the
Purchase Price Customer is responsible for the payment of all taxes applicable
to this sale or Seller's performance of this Agreement, except for any tax on
Seller's net income.
2. DELIVERY, INSTALLATION, TESTING AND ACCEPTANCE
The System will be installed at the 'Installation Site' (described above) by
Seller according to the Manufacturer's installation specifications and the
standard practices of the telecommunications industry. Customer shall allow
Seller's employees, representatives and subcontractors reasonable access to
the necessary premises for installation. Before and during installation
Customer is responsible to ensure the timely and adequate delivery,
installation and functioning of the electrical and telecommunications
connections and other environmental requirements, specified in Seller's
instructions, including those connections required for Customer's choice of
local and long distance telecommunications services.
If Customer causes a delay of the System, Customer shall be responsible for
storage and other costs incurred by Seller, and any installments of the Purchase
Price due after the delay shall be due and payable on the date specified in the
Project Schedule Annex. Additional charges may apply if Seller must perform
extra services or bear additional costs (such as overtime wages) because of an
unprepared Installation Site, or due to Customer's acts of omissions, or
conditions at the Installation Site about which Seller was not aware when it
signed this Agreement.
When the installation has been completed the System will be tested by Seller
according to the manufacturer's diagnostic and readiness test specifications and
Customer will notified when the System is ready to be placed into use
('Cutover'). Within 10 days after Cutover, Customer must either accept the
System or notify Seller in reasonable detail of the items and manner in which
the System does not materially comply with this Agreement. Seller shall promptly
correct any such items. Upon such correcting if Customer does not notify Seller
of any material non-compliance within such time, acceptance of the System shall
be deemed to occur. Customer shall not unreasonably withhold acceptance.
3. REGULATORY COMPLIANCE
The installation and the System shall comply in all material respects with
applicable federal, state and local laws and regulations in force on the
effective date of this Agreement. If any changes in laws or regulations become
effective after the effective date of this agreement which are applicable to the
System or installation when installed, Seller will comply with the new
requirements, and Customer agrees to pay Seller's then current labor and
material charges in connection with such compliance.
4. TRAINING
Seller shall provide Customer with its standard user training for the System at
no additional charge. The Standard user training for a given system type
consists of instructional materials, and may include training sessions with an
instructor. Other materials and training are available at an additional charge.
5. LIMITED WARRANTIES
Seller warrants that for 48 months after the date of Cutover ('Warranty
Period'): (a) the Hardware shall be free from equipment defects and faulty
workmanship. (b) the installation of the system shall conform to the
manufacturer's installation specifications (collectively
referred to as the 'Warranties') Warranties related to any additions to the
Hardware or Software installed during the Warranty Period shall terminate at
the end of the Warranty Period for the System.
Customer must notify Seller promptly of any claimed defect or failure of any of
the Warranties. The procedures for this are described in section 6, Maintenance
Service. Seller's sole obligation and Customer's exclusive remedy for any defect
or failure of any Warranty during the Warranty Period will be for Seller to
perform Maintenance Service. The fact that Seller performs any Maintenance
Service during the Warranty Period will not extend or restart the Warranty
Period.
The Limited Warranties described above in this section, and the remedies for a
failure, defect or breach of any of those limited warranties which are described
in Section 6 are exclusive. They are given to customer in lieu of all other
warranties, written or oral, statutory, express or implied, including without
limitation, the Warranties of merchantability and fitness for a particular
purpose, which seller specifically disclaims. The limited warranties may also be
voided by certain acts or omissions of customer described in detail in Section
6.
6. MAINTENANCE SERVICE
'Maintenance Service' consists of the repair or replacement, at Seller's option,
of malfunctioning Hardware. Seller may repair or replace malfunctioning Hardware
using either new or like new Hardware. Title to any replacement Hardware shall
pass to Customer upon installation, and title to the replaced Hardware shall
pass to the Seller at the same time.
A defect or failure that has a substantially adverse effect on the call
processing or other material capability of the system shall be deemed an
'Emergency'. If Seller is unable to remotely correct the defect or failure,
it shall dispatch a technician to the Installation Site within 2 hours of
Customer's request for Maintenance Service, without regard to the time of day
or day of the week. Maintenance Service for a defect or failure to the System
that is not an Emergency shall be performed by Seller between 8:00 AM and
5:00 PM, local time, Monday through Friday, except Seller holiday. If Seller
is unable to remotely correct a non-Emergency defect or failure, Seller shall
dispatch a technician to the Installation Site with 24 hours of Customer's
request for Maintenance Service, except when the request for non emergency
services is made on or the day before a weekend day or a holiday observed by
Seller, in which case a technician will be dispatched by Seller's next business
day. Customer must provide Seller with an access necessary to perform
Maintenance Service. A Report of a defect or failure of the System and request
for Maintenance Service may be made by Customer 24 hours a day, 7 days a week
by calling Seller's designated toll free maintenance hotline number.
The limited Warranties specified in this Agreement may be voided and Seller
will be relieved of its obligation to perform Maintenance Service if, during
Warranty Period or subsequent Maintenance Service terms, Customer (a) fails
to follow applicable operations, maintenance, or environmental requirements
described in any of the manufacturer's manuals, Seller's manuals, and other
materials provided to Customer, including without limitation manufacturer's
product bulletins, (b) makes additions to, alters, modifies, enhances,
repairs or disassembles the System (itself or using a third party), without
Seller's written consent, (c) mishandles, abuses, misuses or damages the
System (either itself or by others doing so), or (d) relocates the System
without Seller's written consent (other than telephone instruments relocated
in accordance with the manufacturer's specifications).
Maintenance Service does not cover (a) damage to the System due to fire,
explosion, power irregularities, power surges, Acts of God (including,
without limitation, earthquakes, rains, floods or lightning), or any other
cause not attributable to Seller, or (b) battery failures which occur
following the Warranty Period, or wiring or cabling installed by persons
other than Seller, or consumable supplies.
If Customer requests Seller to perform Maintenance Service and (a) it was
required as a result of any of the causes described in either of the two
proceeding paragraphs, or (b) it is determined that a defect or failure of
the System did not exist (e.g. the problem was caused by facilities provided
by Customer's local or long distance carriers or service provides, or
non-system equipment interfacing with the System), Seller reserves the right
to charge Customer at Seller's then current time and material rates for any
work performed and materials supplied as an additional charge.
7. INDEMNITIES
Each party shall indemnify the other with respect to any third party claim
alleging bodily injury, including death, or damage to tangible property, to
the extent such injury or damage is caused by the negligence or willful
misconduct of the indemnifying party (except that in all cases Customer
shall indemnify Seller with respect to any claim that the location where a
telephone instrument, console or other device intended to be used by an
individual user, including any wires or cables connected to it, was placed
or installed was the cause of injury or damage).
Seller shall also indemnify Customer with respect to any claim alleging that
Customer's use of the System constitutes an infringement of any United
States patent or copyright, if Seller has been notified and permitted to
defend the suit as required by the following paragraph. If a court of
competent jurisdiction issues an injunction against Customer prohibiting it
from using the System because of such claim, Seller, at its option, shall
either obtain for customer the right to continue using the System, or
replace or modify the System so that Customer's use is not subject to the
injunction. If Seller cannot either acquire the right to use the System or
replace or modify it in a commercially reasonable and timely manner, then
Customer's remedy is to return the System to Seller (after giving written
notice to Seller and receiving instructions for the return). If the System
is returned neither party shall have any further obligation or liability
under this Agreement, except that Seller shall refund the depreciated
value of the System (excluding the value of the wiring and cabling portion
thereof) as carried on Customer's books at the time of such return. This
indemnity shall not apply to claims arising in respect to the use of the
System in a manner not contemplated under this Agreement, or if the claims
are based on the use of the System in conjunction with products not
provided to Customer by Seller. This Section 7 describes Seller's entire
obligation with respect to any infringement claims.
A condition precedent to any obligation of a party to indemnify shall be for
the other party to promptly advise the indemnifying party of the claim and
turn over its defense. The party being indemnified must cooperate in the
defense or settlement of the claim, but the indemnifying party shall have
sole control over the defense or settlement. If the defense is properly and
timely tendered to the indemnifying party, then it must pay all litigation
costs, reasonable attorney's fees, settlement payments and any damages
awarded (but this may not be construed to require the indemnifying party to
reimburse attorney's fees or related costs of the other party that the other
party incurs either to fulfil its obligation to cooperate, or to monitor
litigation being defended by the indemnifying party).
8. RISK, TITLE, AND SECURITY AGREEMENT
Title to the Hardware shall pass to Customer when the Purchase Price has
been paid in full. Risk of loss or damage to the System or any of its
components shall pass to Customer upon delivery to the Installation Site.
Until Customer pays the Purchase Price in full, customer grants to Seller a
purchase money security interest in the System and its proceeds. Seller's
filing costs will be invoiced as an additional charge to Customer and
Customer agrees to sign any financing statement or other document Seller
considers necessary to protect Seller's rights under the security interest.
9. CUSTOMERS'S OBLIGATIONS AND CONDITIONS OF PERFORMANCE
In addition to the obligations described in this Agreement, Customer shall
timely complete the tasks identified as its duties in the attached Project
Schedule Annex.
The Purchase Price is based in part upon the understanding that (a) Seller
may use its own employees or subcontractors of its choosing to perform all
or some of its services, and (b) those areas at the Installation Site where
Seller's employees or subcontractors are required to work do not contain any
asbestos or other hazardous material. If Seller is restricted by Customer in
managing it utilization of employees or subcontractors, of if any asbestos
or hazardous material exists at work sites, Seller may increase the Purchase
Price to reflect increased costs and extend the time of performance to
reflect reasonable additional time require to adjust for unanticipated
activities. In addition, with respect to the presence of asbestos or other
hazardous material. Customer must, at its own expense, have the materials
removed or notify Seller to install the applicable portion of the System in
areas at the Installation Site not containing such material. The Purchase
Price does not include charges for doing installation work or performing
other services outside Seller's normal working hours, except for Maintenance
Service required for an emergency, or a Cutover scheduled for an evening or
weekend in the Project Schedule Annex. If Customer asks that certain work or
services be done outside of Seller's normal work hours, or takes other
actions that require such work, then Seller may increase the Purchase Price
to reflect Seller's then current charges for work during such hours.
10. DEFAULT AND REMEDIES
If any material breach of this Agreement continues uncorrected for more than
30 days after written notice from the aggrieved party describing the breach,
the aggrieved party shall be entitled to declare a default and pursue any
and all remedies available at law or equity. In addition, if Customer is the
aggrieved party, Customer may suspend its payment obligation relation to the
breach until Seller's breach is corrected, and if Seller is the aggrieved
party, Seller may suspend performance of its obligations until Customer's
breach is corrected.
11. FORCE MAJEURE
Neither party shall be liable for delays, loss, damages or other
consequences of acts, omissions or events beyond a party's control and which
may not be overcome by due diligence, or caused by strikes or labor strife
and unrest.
12. GENERAL
A. Customer warrants that the person signing this Agreement for Customer is
authorized to do so, and that Customer has obtained all internal and
external approvals and resolutions necessary to enter into this Agreement
and make the Agreement binding upon Customer.
B. This Agreement constitute the entire agreement between the parties with
respect to the described Transaction. It supersedes all prior
negotiations, proposals, commitments, advertisements, publications or
understandings of any nature, whether oral or written. Any amendment or
modification to this Agreement and any waiver of rights under this
Agreement must be in writing clearly intending to modify or waive rights
under this Agreement that is signed by authorized representatives of both
parties to be effective. In interpreting this Section it is agreed that
any preprinted or added terms and conditions in a purchase order form or
like forms used by Customer to implement or change System or product
orders under this Agreement are void with respect to this Agreement, even
if acknowledged in writing by Seller.
C. If any provision of this Agreement is held invalid, the remaining
provisions shall continue in full force and effect and the parties shall
substitute for the invalid provision a valid provision which most closely
approximates the economic effect and intent of the invalid provision.
D. If Seller delivers additional Hardware of Software, or provides time and
material maintenance or other incidental services relating to the System,
the terms of this Agreement will govern, subject to Sellers price quotes,
unless there is a separate written agreement between the parties covering
those items.
E. Unless limited by other sections of this Agreement, either party may
assign or otherwise transfer this agreement and its rights and
obligations under this Agreement upon written notice to the other party,
except that no such assignment or other transfer shall relieve a party
from primary responsibility for its performance in accordance with this
Agreement.
F. A failure by either party to exercise its rights under this Agreement
shall not be a waiver.
G. This Agreement shall be governed by the laws of the state in which the
Installation Site is located.
H. This Agreement is not effective or binding upon Seller and does not
constitute an offer subject to being accepted by Customer until it has
been executed by a duly authorized representative of Seller. The
effective date of this Agreement shall be the date of Seller's execution
of this Agreement. Seller may deposit any check tendered by Customer, but
if Seller elects not to execute this Agreement, Seller shall promptly
refund such amount to Customer. Any such deposit may not be construed as
an acceptance or agreement by Seller to this Agreement becoming
effective.
The following annexes and addendum are attached to and made a part of this
Agreement.
Hardware/Software Annex
Project Schedule Annex
Payment Schedule Annex
INSTALLATION SITE_______________________________________________________________
_____________________________________________PURCHASE PRICE $___________________
ACCEPTED BY ALL COMMUNICATIONS CORP. DATE ACCEPTED BY (CUSTOMER) DATE
_________________________________________ _________________________ ________
By (Authorized Signature) By (Authorized Signature)
_________________________________________ ___________________________________
Name (Type or Print) Name (Type or Print)
_________________________________________ ___________________________________
Title ___________________________________ Title _____________________________
EXHIBIT C
PRODUCTS WARRANTY
Warranty: Vendor warrants for the applicable warranty period (as defined below)
that the Products (including voice mail equipment) shall be free from defects
and faulty workmanship and the installation of the Products shall conform to the
manufacturer's installation specifications.
Warranty Period: The warranty period for the Products (including voice mail
equipment) shall be for a period of 24 months from the date on which the
Products is ready for use; provided, however, that for sales made to the
National Realty Trust the warranty period for the Products (excluding voice mail
equipment) shall be for a period of 48 months from the date on which the
Products are ready for use (24 months for voice mail equipment).
Warranty Remedy: Vendor shall correct any failure, defect or non-conformity by
repair or replacement of the Products (including the voice mail equipment) at
Vendor's cost and expense.