Exhibit 10.2
CERTIFIED AGENT AGREEMENT
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.
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3.0 GLOWPOINT'S RESPONSIBILITIES
3.1. GlowPoint's sole compensation to Certified Agent for Certified
Agent's performance of its responsibilities under this
Agreement with respect to the GlowPoint Services shall be
commissions ("GlowPoint Services Commissions") of "GlowPoint
Services Commissionable Revenues" (as detailed in Schedule A),
determined as follows: Subject to Section 3.5, GlowPoint
shall, by the end of each calendar month, remit to Certified
Agent a payment in the amount of any GlowPoint Services
Commissions to which Certified Agent is entitled in respect of
GlowPoint Services Commissionable Revenues arising during the
previous calendar month, together with a statement indicating
the basis upon which such GlowPoint Services Commissions have
been calculated. "GlowPoint Services Commissionable Revenues"
shall mean the charges that are billed and actually received
by GlowPoint (net of any associated discounts or credits and
exclusive of all taxes, installation or removal charges and
other similar charges) in respect of the GlowPoint Services
that are delivered by GlowPoint (a) pursuant to Customer
contracts for the GlowPoint Services procured by Certified
Agent (as determined by GlowPoint, subject to Section 4.1
below) (each a "Certified Agent's GlowPoint Services Customer
Contract"), and (b)(i) during the term of Certified Agent's
appointment under this Agreement (the "Term") and (ii) if the
Term is terminated by GlowPoint (other than by a Termination
for Cause (as defined in Section 5.1)) or Certified Agent,
during the 180 days immediately following such termination.
GlowPoint's obligation to pay GlowPoint Services Commissions
hereunder shall cease immediately following a Termination for
Cause by GlowPoint. GlowPoint may amend the GlowPoint Services
Commission structure, effective upon 60 days' prior notice to
Certified Agent (or upon immediate notice, in the case of an
added service). If GlowPoint pays a GlowPoint Services
Commission to Certified Agent based upon GlowPoint Services
Commissionable Revenue that is subsequently refunded or
credited back to any Customer, or if any GlowPoint Services
Commission is paid to Certified Agent in error, GlowPoint may,
upon notice to Certified Agent, deduct the amount of such
GlowPoint Services Commission from future GlowPoint Services
Commissions otherwise payable to Certified Agent or require
Certified Agent to repay such GlowPoint Services Commission to
GlowPoint.
3.2 Intentionally Omitted.
3.3 Section 3.1 shall not apply to contracts for the Services by
any governmental entity or pursuant to a GSA contract
(collectively, the "Government Contracts") procured by
Certified Agent. Government Contracts and commissions to
Certified Agent for procuring Government Contracts
("Government Commissions") shall be governed by the provisions
of Schedule A.
3.4 GlowPoint's sole compensation to Certified Agent for Customer
contracts procured by a Referred Agent shall be commissions
("Referral Commissions") in the amount of $100 per billable
subscriber location for each such Customer contract for
GlowPoint Services procured by a Referred Agent. Subject to
Section 3.5, GlowPoint shall, by the end of each calendar
month, remit to Certified Agent a payment in the amount of any
Referral Commissions to which Certified Agent is entitled in
respect of Customer contracts procured by a Referred Agent
during the previous calendar month, together with a statement
indicating the basis upon which such Referral Commissions have
been calculated. GlowPoint's obligation to pay Referral
Commissions hereunder shall cease immediately following a
Termination for Cause by GlowPoint or thirty (30) days
following the termination of the Term by Certified Agent.
GlowPoint may amend the Referral Commission structure,
effective upon 60 days' prior notice to Certified Agent (or
upon immediate notice, in the case of an added service). If
GlowPoint pays a Referral Commission to Certified Agent that
is subsequently refunded or credited back to any Customer, or
if any Referral Commission is paid to Certified Agent in
error, GlowPoint may, upon notice to Certified Agent, deduct
the amount of such Referral Commission from future Referral
Commissions otherwise payable to Certified Agent or require
Certified Agent to repay such Referred Commission to
GlowPoint.
3.5 Any GlowPoint Services Commissions, Government Commissions or
Referral Commissions (collectively, the "Commissions") payable
to Certified Agent shall be offset against and reduced by the
amounts owed by Certified Agent to GlowPoint each month for
GlowPoint's provision to Certified Agent of the network
services for Certified Agent's corporate use, as described in
that certain Asset Purchase Agreement, dated the date hereof,
between Certified Agent and GlowPoint. In no event shall
Certified Agent be entitled to any Commissions for Services
delivered by GlowPoint pursuant to Customer contracts procured
by an agent or sales representative of Certified Agent who is
a direct sales agent for the Service at the time this
Agreement is entered into and executed between GlowPoint and
Certified Agent.
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3.6 GlowPoint shall provide Certified Agent, for purposes of
marketing the Services, with electronic only versions of
Customer contracts, order forms, promotional brochures, sales
literature and other sales aids, which materials (as they may
be revised from time to time by GlowPoint) Certified Agent
shall use in the performance of its duties under this
Agreement.
3.7 GlowPoint shall provide and maintain a help desk for Certified
Agent and for Customers to contact for technical information
and support, as well as trouble reporting and resolution, with
respect to the Services, subject to Schedule B.
3.8 GlowPoint shall promptly review all Customer contracts and
orders for the Services submitted by Certified Agent for
GlowPoint's possible acceptance. GlowPoint reserves the right
to reject, for any or no reason, within fourteen (14) days of
GlowPoint's receipt, any such proposed contract or order.
GlowPoint may, in addition, upon thirty (30) days' notice to
Certified Agent and Customer (except in the case of Customer's
failure to pay GlowPoint for the Services or Customer's
malfeasance, for which no advance notice shall be required)
terminate a Customer's contract at any time in GlowPoint's
sole discretion. GlowPoint is not obligated to renew any
Customer contract that has expired or otherwise terminated.
3.9 GlowPoint shall be solely responsible for providing,
maintaining, billing (on a GlowPoint invoice) and collecting
for the Services. All title to, and risk of loss from, the
Services shall remain with GlowPoint.
3.10 GlowPoint shall conduct its business in a manner that reflects
favorably on Certified Agent, its products and services.
GlowPoint shall not disparage Certified Agent or its products
or services, nor disparage Certified Agent's competitors or
the products or services of such competitors.
4.0 CUSTOMER AND EMPLOYEE CONTACTS
4.1 To avoid Customer confusion, GlowPoint and Certified Agent
shall coordinate their respective marketing of the Services to
Customers. Without limitation of the foregoing, GlowPoint or
Certified Agent (as the case may be) shall, upon receipt of
notice from the other party, refrain from marketing the
Services to a potential customer of the Services to whom an
employee or other authorized sales representative or agent of
such other party is already actively marketing the Services,
and any contract for the purchase of the GlowPoint Services
resulting from any such marketing activities by Certified
Agent shall be deemed a "Certified Agent's GlowPoint Services
Customer Contract" for purposes of Section 3.1 above.
Certified Agent may not in any event market the Services to
residential customers.
4.2 Certified Agent shall not, during or for a period of six (6)
months following the expiration or other termination of the
Term, solicit any Customer to which Certified Agent has sold
any Service during the Term to purchase any service that is
competitive with such Service.
4.3 GlowPoint shall not, during or for a period of six (6) months
following the expiration or other termination of the Term,
solicit, other than through Certified Agent, any Customer to
which Certified Agent has sold any Service during the Term to
purchase any videoconferencing product or service that
Certified Agent then actively sells to such Customer.
4.4 For all purposes of this Section 4, the term "Customer" shall
encompass (if applicable in a given case) only the particular
division, subsidiary or other operating unit (any of the
foregoing, a "Unit") of a larger entity to which Unit
Certified Agent has during the Term actively sold
videoconferencing equipment or services, unless Certified
Agent has actively sold such products or services during the
Term to a majority of such entity's Units, in which case the
term "Customer" shall encompass the larger entity.
5.0 TERM AND TERMINATION
5.1 The Term shall commence as of the Effective Date and shall
continue for a period of twelve (12) months unless earlier
terminated by either party upon thirty (30) days' notice to
the other party, provided that either party may terminate the
Term upon notice with immediate effect if the other party has
failed to perform or abide by any of such other party's
material obligations under this Agreement (a "Termination for
Cause"). This Agreement will automatically renew for
successive 12-month periods, and shall remain subject to
thirty (30) days' notice of termination and immediate
termination for cause by either party, unless either party
elects not to renew the Agreement by sending a written notice
to the other party no later than thirty (30) days prior to the
then scheduled expiration of the Term.
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5.2 Except as otherwise provided herein, upon a termination of the
Term for any reason, neither party shall have any liability to
the other, for either compensation or damages of any kind or
nature whatsoever arising from such termination or otherwise,
whether on account of the loss by Certified Agent of present
or prospective Commissions, or expenditures, investments or
commitments made in connection therewith, or in connection
with the establishment, development or maintenance of
Certified Agent's business, or on account of any other cause
or thing whatsoever, except that no such termination shall
prejudice or otherwise affect the respective rights or
liabilities of the parties with respect to (a) Certified
Agent's entitlement to Commissions procured prior to such
termination, or (b) compensatory damages to which either party
may be entitled arising from a Termination for Cause.
GlowPoint Services Commission payments to the Certified Agent
will be governed by Section 3.1 and Schedule A. Government
Commission payments to the Certified Agent will be governed by
Section 3.3 and Schedule A. Referral Commission payment to
Certified Agent will be governed by Section 3.4 and Schedule
A.
5.3 Upon a termination of the Term for any reason, Certified Agent
shall immediately: discontinue any and all use of the Marks
(as defined in Section 7.1), including but not limited to such
use in advertising or business materials of Certified Agent;
remove and return to GlowPoint, or destroy at GlowPoint's
request (and provide GlowPoint with evidence of such
destruction), all promotional material or other information
supplied to Certified Agent without charge by GlowPoint; and
cease representing itself, in any manner, as an agent of
GlowPoint.
6.0 INDEMNIFICATION
6.1 Each party (the "Indemnitor") shall at all times defend,
indemnify and hold harmless the other party, its affiliates
and suppliers and all of the respective officers, directors,
shareholders, employees, successors and assigns of each of the
foregoing (collectively, the "Indemnified Parties") from and
against, and pay and reimburse the Indemnified Parties for,
any and all liabilities, obligations, losses, damages,
out-of-pocket costs and expenses (including interest,
penalties and reasonable attorneys' fees and expenses incurred
in the investigation or defense of any of the same or in
asserting any of their respective rights hereunder) to the
extent arising out of or relating to any alleged act or
omission of the Indemnitor in the performance of the
activities contemplated hereby or any failure by the
Indemnitor to abide by any of its covenants set forth herein.
6.2 If a third party asserts any claim against an Indemnified
Party for which an Indemnitor is responsible under Section
6.1: (a) such Indemnified Party shall give such Indemnitor
written notice promptly after such Indemnified Party has
actual knowledge of such claim and shall permit such
Indemnitor (at such Indemnitor's expense) to assume the
defense of any claim or any litigation resulting therefrom;
provided that the failure by such Indemnified Party to give
such notice shall not relieve such Indemnitor of its
indemnification obligations under this Agreement except to the
extent that such failure results in a failure of actual notice
to such Indemnitor and, as a result, such Indemnitor is
materially damaged; (b) counsel selected by such Indemnitor to
conduct the defense of such claim or litigation must be
reasonably satisfactory to such Indemnified Party; and (c)
such Indemnified Party may participate in such defense at its
sole expense. Such indemnitor shall not, in the defense of any
such claim or litigation, consent to the entry of any judgment
or enter into any settlement that provides for injunctive or
other non-monetary relief affecting any Indemnified Party or
that does not include as an unconditional term thereof a
release by the claimant or plaintiff from all liability with
respect to such claim or litigation in favor of such
Indemnified Party.
7.0 MARKETING; TRADEMARKS; STRATEGIC ALLIANCE
7.1 GlowPoint grants Certified Agent non-exclusive permission to
utilize the GlowPoint and any other GlowPoint-designated
trademarks, insignia and symbols set forth via notice to
Certified Agent (herein "Marks") (the ownership of all of
which Marks by GlowPoint shall be deemed acknowledged by
Certified Agent at first use) in Certified Agent's advertising
and promotion of the Services, provided that such use is
consistent with this Agreement and GlowPoint's generally
applied standards and guidelines, as they may be revised from
time to time; provided, further, that GlowPoint reserves the
right to withdraw this grant with respect to any Mark upon
immediate notice to Certified Agent in the event that
GlowPoint discontinues the use of such Mark to identify
Services.
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7.2 All Certified Agent-initiated advertisements or promotions
(including, without limitation, any materials appearing on web
sites) that use Marks or make any reference thereto, or that
Certified Agent otherwise uses in connection with its
marketing of the Services, shall be subject to prepublication
review and written approval by GlowPoint with respect to, but
not limited to, context, style, appearance, composition,
timing and media. Certified Agent may not use, include or
refer to any Mark in any unsolicited email.
7.3 Advertising by Certified Agent, including, without limitation,
any materials on web sites, that shows and identifies products
or services marketed by Certified Agent for companies other
than GlowPoint may not use the Marks unless said products or
services are clearly separated from and not associated with
the Marks. Certified Agent shall not use Marks in any way to
imply GlowPoint's endorsement of non-GlowPoint products or
services. Certified Agent shall not alter or remove any Mark
applied to the Services.
7.4 Certified Agent's marketing of the Services shall include: (a)
at least quarterly sales and marketing planning sessions
between the appropriate representatives of Certified Agent and
GlowPoint; (b) compliance with the demonstration requirements
set forth in Schedule B; and (c) at least quarterly webcasts
between Certified Agent's President and GlowPoint's Chief
Executive Officer, which will be distributed to the sales and
marketing employees and representatives of Certified Agent and
GlowPoint.
7.5 Upon the execution of this Agreement, Certified Agent and
GlowPoint shall announce, pursuant to and in the manner
contemplated by Section 12.5, the strategic alliance (the
"Strategic Alliance") between the parties including (i) the
ability of GlowPoint to provide an end-to-end Tandberg-branded
hardware and software experience over the GlowPoint network,
(ii) the transfer of the customer base of Certified Agent's
wholly owned subsidiary, Network Systems, LLC, to GlowPoint,
(iii) the designation of GlowPoint as Certified Agent's
exclusive IP service provider for its corporate use in North
America, and (iv) the ability of Customers and prospective
customers to experience the Tandberg-branded hardware and
software end-to-end solution over the GlowPoint network in
Certified Agent's principal demonstration facilities.
7.6 Certified Agent appoints GlowPoint, and GlowPoint accepts such
appointment, to be an external testing partner of Certified
Agent, whereby GlowPoint shall be authorized to test the use
and compatibility of the Services with Certified Agent's
hardware and software and any upgrades and improvements
thereof. For purposes of this Section 7.6, Certified Agent
agrees to provide to GlowPoint any upgrades of or improvements
to Certified Agent's hardware or software during the Term of
this Agreement. Certified Agent and GlowPoint agree to
collaborate and cooperate with each other during the Term with
respect to research and development efforts relating to IP
based video communications solutions.
7.7 Upon announcement of the Strategic Alliance, Certified Agent
shall display the GlowPoint logo and identify GlowPoint as a
strategic alliance partner on Certified Agent's
WWW.TANDBERGUSA.COM website with the same prominence as the
other strategic alliance partners of Certified Agent
identified on such website. Certified Agent agrees not to
enter into a strategic alliance partnership with any
competitor of GlowPoint for a period of at least six (6)
months after the date of this Agreement.
7.8 Certified Agent agrees to launch a "strategic service provider
partner program" within six (6) months after the date of this
Agreement. Certified Agent agrees that it shall name GlowPoint
as the first IP-based video communications service provider in
such program.
7.9 Glowpoint shall not use any of Certified Agent's trademarks,
copyrighted materials or insignia without specific permission
to do so in each instance, and shall discontinue any such use
upon receipt of Certified Agent's written request to do so or
upon the termination of this Agreement.
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8.0 USE OF INFORMATION
This Agreement, all information provided by any Customer to Certified
Agent in its capacity as a representative of GlowPoint, all Customer
contracts for any Services, and all technical and business information,
including customer lists, customer data and all other customer
information, in whatever form obtained by or furnished to Certified
Agent under or in contemplation of this Agreement (all hereinafter
designated "Information"), shall remain the exclusive property of
GlowPoint. Such Information (i) shall be treated in confidence by
Certified Agent and used by Certified Agent only for the purpose of
performing Certified Agent's obligations under this Agreement; (ii)
shall not be reproduced or copied by Certified Agent in whole or in
part, except as necessary for use as authorized in this Agreement;
(iii) shall not be disclosed by Certified Agent to any third party;
(iv) shall be made available only to such employees of Certified Agent
who have a need to have access to such Information and have agreed to
comply with the terms of this Section; and (v) shall, together with any
copies thereof, be returned, destroyed, or, if in the form of software
recorded on an erasable storage medium, erased when no longer needed by
Certified Agent or the Term terminates, whichever occurs first.
Certified Agent shall adhere to the requirements of this Section 8 for
at least two (2) years following the expiration or other termination of
the Term.
9.0 LIMITATION OF LIABILITY
9.1 GLOWPOINT'S AGGREGATE LIABILITY FOR ANY LOSSES OR OTHER
DAMAGES OF ANY NATURE INCURRED BY CERTIFIED AGENT UNDER THIS
AGREEMENT SHALL BE LIMITED TO DIRECT, PROVEN DAMAGES IN AN
AMOUNT NOT TO EXCEED THE GREATER OF: (i) THE AGGREGATE AMOUNT
OF ANY COMMISSIONS TO WHICH CERTIFIED AGENT IS ENTITLED UNDER
SECTIONS 3.1 THROUGH 3.4 AS APPLICABLE AND (ii) ONE MILLION
DOLLARS ($1,000,000).
9.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER INDIRECT LOSS
OR DAMAGE, INCLUDING LOST PROFITS OR LOST REVENUES, ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR ANY OBLIGATION
RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF ANY SERVICE.
9.3 GLOWPOINT SHALL HAVE NO LIABILITY TO CERTIFIED AGENT FOR ANY
DAMAGES, LOSS, COST OR EXPENSE RESULTING FROM, INCLUDING
WITHOUT LIMITATION ANY COMMISSIONS THAT MIGHT HAVE BEEN EARNED
HEREUNDER BUT FOR, GLOWPOINT'S INABILITY OR FAILURE TO PROVIDE
SERVICES TO ANY CUSTOMER OR FOR ANY DELAYS IN THE PROVISION OF
SERVICES TO ANY CUSTOMER OR IN THE EVENT OF GLOWPOINT'S
TERMINATION OR BREACH OF ANY CUSTOMER SERVICE CONTRACT OR IN
THE EVENT OF ANY DISCONTINUATION OF ANY SERVICES.
9.4 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL
APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT OR OTHERWISE; (ii) WHETHER OR NOT DAMAGES WERE
FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF AND (iii) NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE
FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
10.0 FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in
performance to the extent that such delay or failure in performance is
caused by fires, embargoes, floods, wars, the elements, labor disputes,
government requirements, acts of God, inability to secure raw materials
or transportation facilities, acts or omissions of carriers or
suppliers or other cause beyond such party's control, whether or not
similar to any of the foregoing; provided, however, that performance by
each party of its obligations hereunder shall not be excused by reason
of an act of government authority in the exercise of its enforcement
powers against such party for the alleged violation of any law, rule or
regulation.
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11.0 ASSIGNMENT
Neither party shall assign any right or interest under this Agreement,
or delegate any work or other obligation or duty to be performed or
owed by it under this Agreement; any attempted assignment or delegation
in contravention of the foregoing shall be null and void unless
approved in writing by the other party. Either party may assign this
Agreement, in whole or in part, to any company under common control
with such party, successor-in-interest or successor upon notice to the
other party.
12.0 MISCELLANEOUS
12.1 Except to the extent expressly provided otherwise in this
Agreement, all notices under this Agreement shall be in writing and
shall be given in person or by certified or registered mail or by
overnight courier, addressed to Certified Agent at the address set
forth at the beginning of this Agreement and to GlowPoint at the
address set forth at the beginning of this Agreement, Attention:
GlowPoint Sales Administration, or to such other address as either
party may designate by notice pursuant hereto. Each party may, in
addition, send notices to the other party electronically to the email
address for such other party set forth below.
12.2 The construction, interpretation and performance of this
Agreement shall be governed by the law of the State of New
Jersey, excluding its choice of law provisions. Any litigation
concerning this Agreement shall be commenced exclusively in
either the state courts located in Union County, New Jersey,
or the United States District Court located in Newark, New
Jersey, and each party consents to jurisdiction and venue
therein. In the event of any legal action between the parties
with respect to this Agreement, the prevailing party will be
entitled to recover its reasonable attorneys' fees and court
costs.
12.3 If any paragraph, or clause thereof, of these terms and
conditions shall be held to be invalid or unenforceable in any
jurisdiction in which these terms and conditions apply, then
for such jurisdiction the meaning of such paragraph or clause
shall be construed so as to render it enforceable to the
extent feasible; and if no feasible interpretation would save
such paragraph or clause from invalidity or unenforceability,
it shall be severed from these terms and conditions with the
remainder remaining in full force and effect.
12.4 This Agreement has been executed and delivered by the parties
and shall become effective simultaneously with the Asset
Purchase Agreement between the parties dated the date hereof
and, to the extent applicable, shall be read in conjunction
therewith. In all other respects, the terms and conditions
contained in this Agreement supersede all prior oral or
written understandings between the parties, and constitute the
entire agreement between them, concerning the subject matter
of this Agreement. Except as set forth in the Reciprocal
Non-Disclosure and Confidentiality Agreement dated November
19, 2003 between the parties hereto, there are no
understandings or representations, express or implied,
concerning such subject matter that are not expressly set
forth in this Agreement. This Agreement may not be modified or
amended except by a writing signed by both parties.
12.5 The parties shall, after consultation, issue a press release
substantially in the form of Schedule D hereto, or otherwise
make a public statement concerning the transactions
contemplated by this Agreement containing disclosure which is
mutually agreeable to the parties; provided, however, that
prior to the issuance of such press release, neither party
shall make any press release or other public statement
concerning the matters covered by this Agreement without the
approval of the other party, except to the extent that, in the
opinion of counsel for the party making the release or
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statement, such release or statement is required by law or
applicable regulation, and shall, in any event, to the extent
practicable, permit the other party an opportunity to review
any such release or statement prior to dissemination.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
duly authorized representatives.
GLOWPOINT, INC. TANDBERG, INC.
By: /s/ David C. Trachtenberg By: /s/ Brad Johnston
-------------------------- ------------------
Name: David C. Trachtenberg Name: Brad Johnston
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Title: President and Chief Executive Officer Title: President
------------------------------------- ---------
Date: April 16, 2004 Date: April 16, 2004
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Email__________________________ Email: _____________________
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