ScanSource Communications Purchase Agreement and Cloud Solutions Agreement Featuring Mitel Cloud Services PURCHASE AGREEMENT

Transcription

1 ScanSource Communications Purchase Agreement and Cloud Solutions Agreement Featuring Mitel Cloud Services PURCHASE AGREEMENT This Purchase Agreement ( Agreement ) is by and between ( Reseller ), with its principal offices located at, and ScanSource Communications, Inc., including its subsidiaries and affiliates ( Seller ), with its principal offices located at 6 Logue Ct. Greenville, SC RECITALS A. Reseller desires to purchase and resell various products, including hardware and software and related services, offered by Seller ( Products ). B. Reseller also desires to market and solicit cloud based products and solutions featuring Mitel s cloud based products offering ( Cloud Products ). C. Reseller and Seller desire to define the terms and conditions under which Reseller shall purchase Products from Seller and Seller shall sell Products to Reseller and the terms and conditions under which Reseller shall market and solicit Cloud Products. AGREEMENT NOW THEREFORE, for good and sufficient consideration, the receipt and sufficiency of which is acknowledged, the parties, intending to be legally bound, hereby agree to the following terms and conditions for any and all sales and purchases of Products: GENERAL TERMS APPLICABLE TO SALES OF ALL PRODUCTS All sales of Products are made pursuant to Seller s standard terms and conditions of sale. These terms are available for review as part of our customer application ( or successor site) and also accompany invoices sent by Seller, and may be amended by Seller from time to time at Seller s discretion. TERMS APPLICABLE TO SALES OF SCANSOURCE CLOUD SOLUTIONS FEATURING MITEL In addition to the foregoing General Terms of sale, the following additional terms and conditions apply specifically to the Cloud Products: 1. Cloud Products. Reseller acknowledges that Seller has entered into a non-exclusive cloud services distribution agreement with Mitel, Inc. (hereafter Mitel ). Reseller is an independent contractor and has agreed to market, promote and solicit orders (collectively Market and Solicit ) in the United States ( Territory ) for Mitel s Cloud Products to Reseller s customers or prospective customers ( Customers ). As a condition for entering into this independent contractor relationship with Seller, Reseller has agreed to abide by the following terms and conditions No Exclusive Appointment. Reseller will not have an exclusive right to Market and Solicit the Cloud Products. Seller reserves the right to work through other resellers and Reseller recognizes both Seller and Mitel expressly reserve the right to Market and Solicit the Cloud Products themselves, and to contract with others to Market and Solicit the Cloud Products. Seller recognizes that Reseller may work with other distributors other than Seller or vendors other than Mitel; however, Reseller agrees not to sell Cloud Products directly through Mitel in the Territory for a period of one (1) year following termination of this Agreement Independent Contractor, Expenses and Taxes. This Agreement does not create a relationship between the Parties as one of employer and employee, franchisor and franchisee, or joint ventures. This

2 Agreement does not establish Reseller as either Seller or Mitel's representative or agent for any purpose. Reseller is not authorized to make contracts in the name of Seller, or Mitel, transact any business in the name of Seller or Mitel, or to assume or create any obligation or responsibility binding upon Seller or Mitel. Reseller is responsible for the expenses and obligations it incurs to Market and Solicit the Cloud Products. Reseller must pay all taxes due as a result on compensation received from Marketing and Soliciting the Cloud Products. 2. Territory. Reseller agrees to only market and resell Cloud Products to Customers located in the Territory for Customers internal business purposes. 3. Contractual Flowdowns. Reseller has agreed to certain obligations in this Agreement and further agrees to include these same obligations in its agreements with Customers. 4. COMPLIANCE WITH LAWS AND REGULATIONS. RESELLER SHALL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS IN THE TERRITORY, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ANY LAWS, REGULATIONS, TAXES, FEES OR OTHER REQUIREMENTS RELATED TO THE USE, MARKETING AND PROVISION OF CLOUD PRODUCTS AND OTHER REGULATED SERVICES AND THE PROVISIONING, HOSTING, USING, INSTALLING, DE-INSTALLING, ACTIVATING, DEACTIVATING AND DE-COMMISSIONING OF THE HOSTED IP OFFICE INFRASTRUCTURE (OR ANY PORTION THEREOF) AT RESELLER S OR END-USERS PREMISES AND ANY REGULATIONS PROMULGATED BY THE FEDERAL COMMUNICATIONS COMMISSION IN THE U.S., AND ANY STATE PUBLIC UTILITY COMMISSION IN THE INDIVIDUAL U.S. STATES, AS WELL AS SIMILAR, CORRESPONDING GOVERNMENTAL AGENCIES IN OTHER COUNTRIES AND LOCALITIES. WITHOUT LIMITING THE FOREGOING, RESELLER SHALL (I) COMPLY WITH ALL APPLICABLE DATA PRIVACY AND CALL RECORDING LAWS AND REGULATIONS AND (II) PROVIDE ANY APPLICABLE NOTICES TO AND OBTAINING ANY APPLICABLE CONSENTS FROM CUSTOMERS OR CUSTOMER S END-USERS. RESELLER SHALL DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, FEES, COSTS, TAXES OR DAMAGES THAT MAY ARISE FROM ANY FAILURE TO COMPLY WITH THIS SECTION OR ANY SUCH LAWS OR REGULATIONS, OR THE FAILURE TO PAY ANY TAXES, FEES OR OTHER COSTS. 5. RESPONSIBILITIES 5.1. Reseller Responsibilities. Reseller agrees to (i) Market and Solicit the Cloud Products; (ii) obtain and submit complete and accurate documentation regarding Reseller s Customers, including billing information, as outlined in the sales materials provided by Mitel, (iii) comply with the terms of this Agreement, (iv) abide by any and all rules, policies and regulations imposed by either Seller, or Mitel, as may be amended at any time by either Mitel or Seller without prior written notice Reseller Prohibitions. Reseller will not: (i) intentionally misrepresent Mitel, or Seller s prices or the Cloud Products (including making any warranties or representations to Customers regarding the Cloud Products other than or inconsistent with the limited warranties provided by Mitel) or sell the Cloud Products at Reseller's rates; (ii) recklessly, knowingly or intentionally engage in deceptive or misleading marketing practices in obtaining Customers for the Cloud Products; (iii) use in its business, trade, corporate or domain name the name ScanSource or Mitel or any part, colorful imitation or similarity thereof, or any name of a service provided by Mitel or Seller, nor shall it use any trademark, service mark, or imitation of Mitel or Seller s symbol related to Mitel or Seller without the prior, express written consent of Mitel or Seller; (iv) intentionally violate any Mitel guideline or policy provided to Reseller in writing or posted on Mitel s or Seller s website, including but not limited to Mitel s policies regarding standards for the use of Mitel s trademarks and trade names issued or to be issued by Mitel from time to time; or (v) contact Customers for the purpose of inducing Customers to switch to another provider of services that compete with the Cloud Products offered by Mitel Seller and Mitel's Right of Rejection. Seller and Mitel reserve the right, without any liability to Reseller, to reject any order or potential customer of Cloud Products obtained by Reseller.

3 6. Mitel Software. In the event that any Mitel software (or portion thereof) is installed or downloaded at Reseller s site or on any of Reseller s devices or otherwise made available or accessible by Resellers, then Reseller agrees to comply with all applicable Mitel software End-User License Agreements ( EULA ). 7. End-User Software. In the event that any software (or portion thereof) is installed or downloaded at an end-user s site, Reseller shall not agree to any contractual limitations on end-user s liability for violations of Mitel's intellectual property rights, including through breaches of a software license or reverse engineering. 8. Non-production use software license. A certain number of software license types may, at Seller s and Mitel s discretion, be provided to Reseller for a limited license period, at no charge and for non-production purposes, solely for internal testing of such software in a non-production environment, or other non-commercial purposes ( Non-production use software licenses ). Reseller agrees to only use such Non-production use software licenses internally for non-production purposes and will not install, downloaded or otherwise make them available for use by end-users. Non-production use software licenses will expire automatically at the end of the limited license period as defined in writing by Seller or Mitel, or earlier at Seller s or Mitel s discretion upon notice to Reseller. 9. MITEL SOFTWARE WARRANTY. NO WARRANTY TERMS INCLUDED IN THE EULA APPLY TO ANY SOFTWARE OR SUPPORT SERVICES PROVIDED BY SELLER OR MITEL UNDER THIS AGREEMENT. RESELLER MUST EXPRESSLY EXCLUDE THESE PROVISIONS IN ITS AGREEMENT WITH END-USER. TO THE EXTENT THERE ARE ANY CONFLICTS BETWEEN THIS AGREEMENT AND A EULA, THIS AGREEMENT CONTROLS AND PREVAILS. 10. Audit Rights. Mitel and/or Seller, or an independent auditor acting on their behalf, may audit Reseller and its end-users, in connection with billing under this Agreement and/or in order to determine compliance with this Agreement. Reseller agrees to allow reasonable on-site access during normal business hours and remote access to any information or data and each system configuration containing software, onsite and/or remotely, for any actions reasonably required to conduct such audits. 11. Record Keeping. Reseller shall maintain adequate and complete records of sales to Customers and end-users as well as any other information reasonably needed for billing purposes under this Agreement. The obligation to maintain and make such information available to Seller and Mitel will survive for a period of 5 years from the date of sale. Seller may audit Reseller s compliance with this section. 12. COMMISSIONS Commissions. Seller will pay to Reseller a monthly commission on the gross eligible commissionable revenue generated by Reseller s Customers ( Commission Fees ). Reseller acknowledges that Seller will pay commissions only on those Customers for whom Seller has received payment from Mitel. Commissions shall be paid to Reseller once a minimum amount owed has been reached, the amount of which shall be communicated to Reseller by Seller Changes in Commissions. Seller will have the right to adjust the commission rates. Seller will endeavor to provide Reseller with reasonable written notice of all changes Delinquent Accounts. In the event that a Customer is delinquent in its payment to Mitel, Seller shall have the right to withhold payment of Commission to Reseller until all delinquent amounts are paid Refunds and Errors. Reseller must provide written notice of any disputes over Commission Fees errors to Seller within ninety (90) days from the date of the Commission Fees payment date. If Reseller fails to make the forgoing complaint within the time period stated, then Seller will have no obligation to take any action to address the complaint, and the original Commission Fees payment will be considered complete and satisfied.

4 12.5. Right of Set-Off. Seller reserves the right to set off any amounts owed by Reseller to Seller against amounts payable under this Agreement or any other agreement between Reseller and Seller. 13. NO WARRANTIES SELLER MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY SOFTWARE OR CLOUD PRODUCTS. SELLER DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF SOFTWARE OR CLOUD PRODUCTS OR THAT SOFTWARE OR CLOUD PRODUCTS WILL PREVENT TOLL FRAUD. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTY REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT WILL BE RESELLER S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES RESELLER MAY HAVE AGAINST SELLER WITH RESPECT TO THE NON-CONFORMANCE OF SOFTWARE AND/OR CLOUD PRODUCTS WITH THE WARRANTIES SET FORTH HEREIN. 14. LIMITATION OF LIABILITY IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS ADDENDUM WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID OR PAYABLE UNDER THIS AGREEMENT BY RESELLER TO SELLER FOR THE CLOUD PRODUCT GIVING RISE TO THE CLAIM. THE DISCLAIMERS OF LIABILITY AND THE CAP ON AGGREGATE LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. HOWEVER, THE DISCLAIMERS OF LIABILITY AND THE CAP ON AGGREGATE LIABILITY WILL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, PERSONAL INJURY, OR CONTRACTUAL INDEMNIFICATION OBLIGATIONS PROVIDED IN THIS AGREEMENT. THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS. 15. Indemnity. Reseller shall indemnify and hold harmless Seller from any claims, actions, costs, expenses, liabilities and damages (including, without limitation, attorney's fees and court costs) suffered by Seller arising from Reseller's delay or failure to comply with any provision of this Agreement. 16. Termination. Breach of this Agreement by Reseller will result in immediate termination of Reseller s ability to purchase and receive Cloud Products. In case of termination of this Agreement for any reason, Seller shall de-activate Reseller s software licenses Reseller for the Cloud Products. Within 30 days of such termination, Reseller s Cloud Products customers will be re-allocated to an alternative Reseller. Either party may terminate this Agreement by written notice to the other party: (i) effective immediately upon receipt, if Reseller materially breaches the Agreement; and (ii) at any time for convenience upon 30 days advance written notice with the effective date of termination at the end of the calendar month. Seller may, at any time, terminate an order for convenience upon 30 days advance written notice to Reseller with the effective date of termination at the end of the calendar month. Seller may also terminate this Agreement at any time if Mitel has terminated its relationship with Seller, but in that situation Seller shall endeavor to provide reasonable notice to Reseller after it receives notice from Mitel. 17. Effects of termination. Termination or expiry of this Agreement will be deemed to terminate all orders, including any orders issued by Reseller to initiate support services coverage, and all software licenses purchased pursuant to this Agreement. Termination or expiry of an order will be deemed to terminate all licenses granted under that order. Upon termination or expiration of a license for any reason, Reseller will

5 immediately permanently destroy all copies of software and any related materials in Reseller s possession or control and upon Seller s request, certify such destruction in writing. Rights of termination under this Agreement will be without prejudice to any accrued rights or liabilities of either party to the other arising out of this Agreement. Provisions concerning indemnification, limitation of liability, termination, confidential information, payment (to the extent there are any outstanding payments or fees owed to Seller) and any other terms which, by their nature, are intended to survive termination or expiration of this Agreement or any order will survive any termination or expiration of this Agreement and any Order. 18. No Grant of Intellectual Property. Seller does not grant any intellectual property rights to Reseller or its end-user. All such intellectual property ownership rights remain with, and are retained by, Seller and/or the applicable licensor. 19. Network Connectivity. Reseller is responsible for ensuring its network and connectivity to any Cloud Products meet the minimum necessary criteria needed in the hosting model. Seller will not be liable for any network or connectivity issues resulting from failure of Reseller to comply with this section. 20. Overage Charges. Cloud Product pricing includes sufficient bandwidth for normal usage of Cloud Products. In the case of excessive network bandwidth usage by Reseller or its end-users, Seller reserves the right to charge Reseller overage charges in an amount determined by Seller. 21. Confidentiality. Reseller will continue to be bound by any Confidentiality and Non-Disclosure Agreement executed between Reseller and Seller ( NDA ). To the extent Reseller has not executed an NDA Reseller shall be bound by the following: Confidential Information. During the Term of this Agreement and for three (3) years after the termination of this Agreement, Reseller will agree to maintain in confidence any and all information concerning the terms and conditions of this Agreement, all non-public information and material regarding the business of Mitel and Seller which information is either marked as confidential or could be construed to be confidential, including but not limited to, all information and documents furnished to Reseller by Mitel or Seller containing trade secrets, technical data, customer data base, business and financial information, written or oral representations, memoranda, reports, records, or other information, if the same is provided as confidential or should be construed as confidential (collectively, "Confidential Information"). Reseller shall use the same level of care protecting Confidential Information as it affords its own confidential information, but in any event, at least reasonable care. Without the prior written consent of either Seller or Mitel depending on whose Confidential Information might be disclosed, Reseller will not use or disclose (and cause its employees and representatives not to use or disclose) to any other person or entity any Confidential Information, except as and only to the extent necessary to: (i) perform its duties under this Agreement; (ii) obtain any required governmental approvals; or (iii) comply with laws or as otherwise required by a court of competent jurisdiction, but only to the extent of such requirement, provided that before making such disclosure Reseller shall give the disclosing party written notice of such disclosure and provide an adequate opportunity to interpose an objection or take action to ensure confidential handling of such information Equitable Relief. In the event Reseller breaches this Section 21, Confidentiality, the parties agree that money or damages would not be an adequate remedy, and therefore, in addition to any other legal or equitable remedies, and without waiving the right to arbitration, the non-breaching party will be entitled to seek an injunction or other equitable relief in any court of competent jurisdiction enjoining and restraining the breaching party from continuing such breach and the payment by the breaching party of all costs associated with litigation, including reasonable attorneys' fees. 22. OTHER PROVISIONS Interpretation. In this Agreement, unless the context expressly requires otherwise: (i) a reference to the singular includes the plural and vice versa; (ii) the headings are inserted for convenience only and will not affect the interpretation of this Agreement; and (iii) whenever the words "include", "includes", "including" or "in particular" (or similar derivatives) are used, they are deemed to be followed by the words "without limitation".

6 This Agreement shall be governed by the applicable law of South Carolina with venue in Greenville County, South Carolina Amendment of the Agreement. Any modifications or amendments to this Agreement must be in writing and physically or electronically signed by both parties. In no event will electronic mail constitute a modification or amendment to this Agreement. To the extent the parties have a pre-existing contractual relationship, this Agreement (including without limitation all attachments and other documents referenced therein as well as any amendments thereto) will serve as a novation of that prior contract Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to Cloud Products and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between the parties relating to Cloud Products and will not be contradicted or supplemented by any prior course of dealing between the parties Electronic signature. This Agreement and any amendments thereto may be executed in multiple counterparts, each of which will constitute an original and all of which shall constitute but one document. Subject to local law requirements, the parties agree that this Agreement and any amendments thereto may be executed by electronic signature, which will be binding between the parties as though handwritten. Subject to local law requirements, electronic signature will include either an electronic symbol adopted by a person with the intent to sign this Addendum and any amendments thereto or a photo static copy of a handwritten signature No Assignment. Reseller may not assign its rights or obligations under this Agreement in whole or in part without the express written consent of Seller Notices and Term. All notices and other communications relating to this Agreement or its terms must be either: (1) in writing and sent via first class United States Postal Service certified or registered mail with return receipt requested; or (2) via FedEx or other similar overnight courier. All such notices sent to Seller must be sent to Vice President of Reseller Financial Services and a copy to the General Counsel at 6 Logue Court, Greenville, SC All notices sent to Reseller must be sent to Reseller s address as listed on Reseller s customer application. All notices sent by Seller hereunder will be deemed received two (2) days after postmark or shipping date, or on the day of actual receipt if earlier. In addition, Seller may provide notices hereunder to Reseller via facsimile to the facsimile number(s) Reseller provided to Seller via Reseller s completion of Seller s credit application, with such facsimile notices being deemed received upon Seller's receipt of its facsimile machine's confirmation of successful transmission. If the day on which such facsimile is received by Reseller is not a business day or is after five (5) p.m. on a business day, then such facsimile shall be deemed to have been received on the next following business day. This Agreement is effective as of the last date Reseller has accepted this Agreement (the Effective Date ). This Agreement shall be for one (1) year commencing from the Effective Date, unless earlier terminated. This Agreement shall automatically renew for one (1) year terms on the Effective Date, unless earlier terminated pursuant to Section 16 above Counterparts. Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which will constitute an original, and all of which together will constitute one Agreement. The Parties agree that this Agreement may be executed by Reseller by clicking the ACCEPT button. THE PARTY CLICKING THE ACCEPT BUTTON (A) ACCEPTS THIS AGREEMENT AND AGREES THAT RECIPIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE RIGHT, POWER AND CORPORATEAUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF RESELLER AND BIND RESELLER TO ITS TERMS AND CONDITIONS AND THAT THE CORPORATION IS IN GOOD STANDING UNDER THE LAWS OF ITS HOME STATE, IS QUALIFIED TO DO BUSINESS AND HAS FILLED OUT RESELLER S CUSTOMER APPLICATION AND PROVIDED ALL PERTINENT INFORMATION INCLUDING ITS FEDERAL EIN NUMBER.