EXHIBIT 10.37
APPLICATION HOSTING AND DELIVERY AGREEMENT
This Application Hosting and Delivery Agreement ("Agreement") is effective
as of the 18 day of August, 2000 ("Effective Date") between Donor Management,
Inc., a Delaware corporation with its principal offices located at 0000 Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("DMI") and XCEL Management, Inc. dba InsynQ,
a Delaware Corporation with its principal offices located at 0000 Xxxxxxxx,
Xxxxxx, XX 00000 ("Insynq").
RECITALS
WHEREAS, DMI holds the rights to certain computer software and related
materials ("Software"), and
WHEREAS, DMI desires to market and distribute the Software as a service
which may be delivered to clients electronically by means of the Internet, and
WHEREAS, Insynq has experience installing and managing business software at
a central computer ("Application Hosting") and distributing such software in
the form of service delivered electronically via the Internet ("Application
Delivery Services") to users of the Software ("End Users"), and
WHEREAS, Insynq desires to obtain a license to host and distribute the
Software.
NOW, THEREFORE, in consideration of the conditions and promises herein
contained, we mutually agree as follows:
AGREEMENT
GRANT OF LICENSE. DMI hereby grants to Insynq a limited non-exclusive and
non-transferable right to install and use the Software at a central location
owned and operated by Insynq ("Data Center"), and to distribute the Software as
a service, which is delivered via the Internet, to End Users that have executed
a corresponding End User Software License Agreement and to Resellers that have
been licensed by DMI and Insynq to sell the Software and/or Application Hosting
and Delivery Services.
TERM AND TERMINATION. The initial term of this Agreement shall commence on
the Effective Date and unless terminated earlier as provided herein, shall
continue for a period of thirty-six (36) months from the Effective Date. This
Agreement shall be renewed at its expiration for successive 12-month periods,
unless either party gives written notice of termination to the other no later
than sixty (60) days before the close of the contract term. Either party may
terminate this Agreement at any time, without cause and without intervention, by
giving sixty (60) days written notice to the other party.
SOFTWARE. Software shall include Donor Development and Donor Accounting
(a.k.a. Rainier Accounting), which together and separately from part of an
information system developed and owned by DMI for use by nonprofit
organizations, along with and all future versions of the Software, product and
user manuals, and all enhancements, revisions, or modifications made to the
Software by DMI.
DMI shall deliver the Software to Insynq in executable form. Insynq may not
copy the Software; except that (1) Insynq may make one copy of the Software
solely for backup or archival purposes, and (2) Insynq may transfer the Software
to hard disks in the Data Center computers provided Insynq keeps the original
solely for backup or archival purposes. Insynq may copy the written materials
only for use by technical personnel responsible for providing technical support
related to the Software.
Insynq acknowledges that the source code and executable version of the
Software are a confidential trade secret of DMI and Insynq agrees not to
decipher, reverse engineer, decompile, or disassemble the Software.
FEES AND COMPENSATION. Insynq shall pay no fees to DMI and DMI shall pay
no fees to Insynq as a result of this Agreement.
DMI'S RESPONSIBILITIES
SOFTWARE DELIVERY TO INSYNQ. On a timely manner, DMI shall deliver to
Insynq the latest published version of the Software.
DEMONSTRATION SOFTWARE. DMI shall deliver to Insynq a version of the
Software that has been modified for the purposes of testing and demonstrating
the characteristics and capabilities of the Software.
TECHNICAL SUPPORT. DMI shall provide at no charge to Insynq and during
DMI's normal business hours telephone consultation on technical and engineering
matters related to the installation, operation and delivery of the Software.
Direct support to the End User regarding operation and use of the Software shall
be the responsibility of the DMI Reseller. The responsibilities and obligations
of the DMI Reseller regarding support to the End User are governed by the terms
of the DMI Reseller Agreement.
TECHNICAL TRAINING. Upon signature of this Agreement and at a mutually
agreeable date, DMI shall train up to (2) Insynq employees on the installation,
deployment and operation of the Software. Technical training shall be provided
at no cost to Insynq, except that Insynq shall be responsible for all travel and
out-of-pocket expenses that either DMI or Insynq employees may incur in relation
to this training.
INSYNQ'S RESPONSIBILITIES
APPLICATION HOSTING AND APPLICATION DELIVERY SERVICES. Insynq shall render
its Application Hosting and Application Delivery Services in accordance to
published standards issued by Insynq from time to time in relation to speed of
response and reliability of operation for such functions. The current version of
such published standards is included in Exhibit A of this Agreement.
DEMONSTRATION PRODUCT. Insynq shall Host and Deliver a version of the
Software for the purpose of demonstrating to potential buyers the
characteristics and capabilities of the Software and to provide DMI/Insynq
Resellers the means to deliver training and product support services.
TECHNICAL SUPPORT. Insynq shall designate two (2) members of its technical
staff to receive from DMI Technical Training on the installation and deployment
of the Software. The technical support provided by Insynq technical staff shall
include installation and upkeep of the Software at the Data Center and
deployment of the Software to licensed End Users.
RESPONSIBILITIES OF PARTIES UPON TERMINATION OF THE AGREEMENT. In the event
that this Agreement is terminated by any of the parties, with or without
reason, Insynq shall be obligated to continue Hosting and Delivering the
Software while there remain duly licensed End Users of the Software. Any fees
that may be collected after the Agreement is terminated shall be in accordance
with the terms and conditions of the Reseller Agreement governing the sale of
Hosting Services related to the Software.
TRADEMARKS. During the Term of this Agreement, Insynq shall have a limited
non-transferable right to refer to the Software and related services using DMI
product trademarks in compliance with the laws concerning protection of
trademarks and trade names if the reference is not misleading and does not
indicate or imply DMI endorsement or approval of any other product or service
offered by Insynq. The appropriate trademark symbol ("TM") shall be used
whenever the Software is mentioned in any advertisement, or published material
of any form by Insynq.
CONFIDENTIALITY. During the term of this Agreement and for twelve (12)
months following the termination of this Agreement, Insynq agrees to hold in
strict confidence and not disclose without express written consent of DMI any
information learned about the DMI products that is or should reasonably be
understood to be confidential and proprietary to DMI. Insynq agrees to take all
reasonably necessary measures required to protect this confidential information.
LIMITATION OF LIABILITY. Subject to applicable law, DMI shall not be liable
for any damages whatsoever (including without limitation, direct
or indirect damages for personal injury, loss of profits, loss of information,
business interruption, or any other pecuniary loss) arising out of the use of or
inability to use the Software, even if DMI has been advised of the possibility
of damage. Regardless, the entire liability of DMI shall be limited to the
amount DMI actually received from the End User to use the Software. This
provision may not apply in certain jurisdictions that do not allow for the
limitation or exclusion of liability. In no event shall DMI be liable for any
consequential damages arising out of or in connection with the use or
performance of the DMI Software.
INDEPENDENT CONTRACTOR. Insynq is not an Employee of DMI. Insynq is an
independent contractor, and shall not be entitled to any benefits or workers
compensation benefits given to employees of DMI, and shall be responsible for
the payment of all taxes with respect to compensation received from DMI. It is
expressly acknowledged that Insynq is provided great flexibility in the
performance of the services specified herein, and is not subject to the control
typically associated with an employee or franchise relationship. Insynq shall
not hold itself out as an agent of DMI. This Agreement shall not be construed as
creating an agency, partnership, joint venture or franchise relationship between
Insynq and DMI. Insynq does not have authority to bind DMI in any way, other
than those inherent to the job.
INDEMNIFICATION. Insynq agrees to indemnify DMI for all liabilities,
costs, claims, and damages of any type, including cost to defend, resulting from
a breach of this Agreement or arising out of Insynq's business related only to
this Agreement and the Software, including training and support of Insynq's
customers. DMI agrees to indemnify Insynq for all liabilities, costs, claims,
and damages of any type, including costs to defend, resulting from a breach of
this Agreement and/or any defect in design or construction of all products
and services provided by Insynq.
COMPLETE AGREEMENT. This Agreement, and all exhibits hereto, constitutes
the complete agreement between the parties with respect to the subject matter
herein, and replaces and supersedes all prior and contemporaneous written or
oral agreements or statements.
PARTIES OF INTEREST. Except as expressly as provided herein, nothing in
this Agreement shall confer any right or remedies to any persons other than the
parties hereto, and their respective successors and assigns, nor shall anything
herein relieve or discharge the obligation or liability of any third person to
any party to this Agreement, nor shall any provision give any third person any
right or action over or against any party to this Agreement.
INTERPRETATION AND JURISDICTION. This Agreement shall be construed in
accordance with the laws of the State of California. Each party hereby consents
to the exclusive jurisdiction of the state and federal courts sitting in
California for any action arising out of or in connection with this Agreement.
Each party further agrees that personal jurisdiction over him may be effected by
service of process by registered or certified mail, and that when so made shall
be as if served upon him personally within the State of California.
SEVERABILITY. If any provision of this Agreement or the application of such
provision to any person or circumstance shall be held invalid or unenforceable,
it is hereby severed from this Agreement, and the remainder of the Agreement
remains unaffected thereby. The parties agree that the severed provision shall
be replaced with such other provision that most closely reflects the intent of
the parties hereto and is enforceable. Intent of such provisions will be decided
upon mutual consent. If the parties cannot reach mutual consent on provisions an
unbiased 3/rd/ party will be retained to determine intent.
AMENDMENTS. All amendments or changes to this Agreement shall be in writing
and signed by all parties. It is understood that Supplier may unilaterally
change the policies and procedures regarding the distribution of the Software
without notice.
ATTORNEY FEES. In the event any dispute arises between the parties
regarding this Agreement, or the enforcement of any provision herein, the
prevailing party shall be entitled to recover its costs, expenses, discovery
costs, and attorneys' fees incurred in connection with any such controversy, in
addition to whatever other relief, if any, is granted to the prevailing party.
NOTICE. All legal notices under this Agreement shall be in writing and
shall be delivered by registered U.S. mail.
ASSIGNMENT. Insynq may not assign, delegate, sub-contract or otherwise
transfer this Agreement or any of its rights or obligations without DMI's prior
approval. The rights granted by DMI to Insynq are personal to Insynq, and Insynq
will not appoint any independent agent, representative, commissionaire, Insynq
reseller or other third person to promote or market the Licensed Software
without the consent of DMI. Any attempt to do any of the foregoing without the
approval of DMI will be void.
In no event shall Insynq's rights or obligations hereunder be assigned or
assignable by operation of law or by bankruptcy proceedings; and in no event
shall this License or any rights or privileges hereunder be an asset of Insynq
under bankruptcy, insolvency, or reorganization proceedings.
IN WITNESS of our agreement hereto, WE EXECUTE this Agreement.
ACCEPTED BY:
XCEL Management, Inc. dba InsynQ Donor Management, Inc.
/s/ Xxxx X. Xxxxx /s/ [ILLEGIBLE]^^
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Xxxx X. Xxxxx, CEO and Chairman Authorized Signature
Date: 9/17/2000 Date: August 14, 2000
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Executive Vice President
