EXHIBIT 10.24
MASTER LICENSING AGREEMENT
By and between
Macola, Inc.
and
InsynQ, Inc.
This Agreement is entered into as of this 19th day of May, 2000 (the "Effective
Date") by and between Macola, Inc. ("Macola"), an Ohio corporation, having its
principal place of business 000 X. Xxxxxx Xxxxxx, Xxxxxx, XX 00000 and InsynQ,
Inc. ("InsynQ"), a Washington corporation, having its principal place of
business at 0000 Xxxxxxxx, Xxxxxx, XX 00000.
RECITALS
A. WHEREAS, InsynQ has developed and distributes proprietary internet utility
and application service provider services ('Services') that enable, among other
things, application hosting over the Internet;
B. WHEREAS, Macola wishes to obtain a nonexclusive license to market and
promote such Services on the terms and conditions set forth herein, and InsynQ
wishes to nonexclusively license the marketing and promotion of such Services to
Macola on such terms and conditions;
C. WHEREAS, Macola desires to nonexclusively license InsynQ to host certain of
Macola's proprietary Macola(R) Progression Series enterprise resource planning
and other software products and to permit InsynQ to provide Services, as more
fully defined herein, with respect to those software products to designated
licensees thereof, all on the terms and conditions set forth herein, and InsynQ
desires to obtain such a nonexclusive license on such terms and condition;
NOW THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. DEFINITIONS.
1.1 "Affiliate" means any entity that directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, Macola. The term "control" means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities, through membership,
by contract or otherwise.
1.2 "Application Hosting Services" means the process of installing software on
a server located in InsynQ's data center and providing ongoing outsourced
Services on a subscription basis including, but not limited to, permitting a
Macola Customer to remotely access and use Macola Products and other
Applications hosted by InsynQ and providing related data back-up, application
delivery and data storage.
1.3 "Applications" means those applications offered by InsynQ set forth on
Exhibit A, as amended from time to time by InsynQ by written notice to Macola.
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1:4 "Macola Products" means all versions of the Macola(R) Progression Series
enterprise resource planning software products which are listed on Exhibit B
attached hereto, as amended from time to time, and incorporated herein by
reference, and such other products developed, manufactured and distributed by
Macola as listed on Exhibit B.
1.4 "Macola Resellers" means entities which are duly qualified distributors,
resellers or marketers of the Macola Products in good standing.
1.5 "Macola Business Partners" means all Affiliates, Macola Resellers and other
third parties appointed by Macola to exercise any of the rights granted to
Macola hereunder to market and promote the Services.
1.6 "Macola Users" means all licensees and sublicensees of the Macola Products,
now or hereafter existing during the Term hereof, who are authorized by their
license with Macola or a Macola Reseller to remotely access and use the Macola
Products via InsynQ's Application Hosting Services.
1.7 "Macola Prospects" means all prospective licensees and sublicensees of the
Macola Products, together with any and all customers other than Macola Users
which purchase any Application Hosting Services from InsynQ as a result of the
marketing and promotional efforts of Macola or any Sub-Marketer.
1.8 "Macola Customers" means all Macola Users and Macola Prospects.
1.9 "Trademarks" means the trademarks, service marks, logos and trade names
used by InsynQ in connection with the Services and Documentation which are
provided by InsynQ to Macola from time to time.
2. LICENSE GRANTS.
2.1 License. InsynQ hereby appoints Macola and Macola hereby accepts
appointment to serve as InsynQ's representative for marketing and promoting the
Application Hosting Services to Macola Customers during the Term of this
Agreement (as hereinafter defined). In connection therewith, but subject to the
terms and conditions of this Agreement, InsynQ hereby grants Macola a non-
exclusive, non-transferable, worldwide license to promote and market Application
Hosting Services, for either or both of Macola Products or Applications, to
Macola Customers. Macola shall have no right to license or distribute the
Application Hosting Services, and all transactions resulting from Macola's
marketing and promotional efforts shall be entered into directly between the
Macola Customer and InsynQ.
2.2 Terms. All marketing and promotion by Macola of the Application Hosting
Services shall be solely only in accordance with the Application Hosting
Services price list established by InsynQ and provided to Macola (as amended
from time to time), and will be consistent with InsynQ's standard Application
Hosting Agreement, attached hereto as Exhibit F. All Application Hosting
Services for Macola Products will be provided solely to Macola Users as
identified to InsynQ by Macola, and the rights of Macola Users to access and use
Macola Products will be solely as set forth in the applicable Macola license or
sublicense agreement.
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2.3 Orders. All orders resulting from Macola's or its Sub-Marketers' (as
defined in Section 2.4 below) marketing or promotion of the Application Hosting
Services shall be submitted to InsynQ in accordance with the provisions of
Exhibit G attached hereto and made a part hereof.
2.4 Distribution.
(a) Macola may appoint any one or more Macola Business Partners as sub-
marketers ("Sub-Marketer") of the Application Hosting Services, to exercise any
one or more of the rights granted Macola in Section 2.1 above, but subject in
any event to the terms and conditions of this Agreement. All Macola Resellers
appointed as Sub-Marketers shall have first signed an approved Macola Reseller
Agreement substantially in the form attached hereto as Exhibit D. All Macola
Business Partners appointed as Sub-Marketers other than Macola Resellers shall
have first signed an agreement with Macola ("Sub-Marketer Agreement") containing
at a minimum provisions at least as protective of InsynQ and not materially less
restrictive than those as set forth in this Agreement.
(b) Macola will use its best efforts to ensure that all Sub-Marketers abide by
the terms of their Reseller Agreements or Sub-Marketer Agreements, as the case
may be, and, upon request by InsynQ, shall keep InsynQ apprised of its
activities to enforce such terms with particular Sub-Marketers with regard to
the marketing and promotion of the Application Hosting Services. In addition,
Macola shall take all reasonable steps to ensure that InsynQ shall have the
right to enforce Sub-Marketer Agreements as an intended beneficiary.
2.5 Documentation. In addition to the rights granted to Macola to reproduce the
Services pursuant to Section 2.1 above, and subject to the terms and conditions
of this Agreement, InsynQ hereby grants to Macola the right to reproduce and
distribute the documentation produced by InsynQ including but not limited any
InsynQ service level agreements, marketing collateral, connectivity guidelines
and/or rates provided by InsynQ to Macola or otherwise made available to Macola
(the "Documentation"), in whole or in part, in connection with its marketing and
promotion of the Application Hosting Services.
2.6 License to Host. Exhibit H, attached hereto and made a part hereof, sets
forth the terms and conditions on which Macola will grant to InsynQ certain
nonexclusive rights to market and promote the Macola Products, and to host the
Macola Products for access and use by Macola Users.
2.7 No Other Grant. Except as expressly provided herein, InsynQ does not grant
to Macola, and Macola does not grant to InsynQ, any right or license, express or
implied.
3. MACOLA'S OBLIGATIONS.
3.1 Promotion of the Application Hosting Services. Macola shall use reasonable
commercial efforts to market and promote the Application Hosting Services by
marketing said Services through its direct sales force and, if deemed
appropriate and proper by Macola through Sub-Marketers, to Macola Customers
interested in utilizing the Macola Products in an outsourced environment.
3.2 Advertising. Macola shall not make any representations or warranties with
respect to the Application Hosting Services provided by InsynQ that are
inconsistent with the descriptions and
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warranties contained in the Documentation and shall not make any representations
or warranties on InsynQ's behalf.
3.3 Sales Personnel. Macola shall equip its sales force with adequate training,
marketing, sales and technical literature as determined by Macola's reasonable
judgment, and Macola agrees to maintain at all times a competent, qualified
sales and support staff for services in accordance with Macola's guidelines and
needs.
3.4 Press Release. Neither party shall have the right to issue any press
release concerning this Agreement without the other party's prior approval. The
parties shall, however, cooperate so that each party may issue such a press
release.
3.5 Compliance with Law. Macola shall comply with all laws and regulations
applicable to Macola's performance hereunder and the marketing and promotion of
the Application Hosting Services or the marketing, promotion or distribution of
the Macola Products hereunder. Without limiting the generality of the foregoing,
Macola (a) shall not market or promote the Application Hosting Services in any
country where such distribution would be unlawful (provided that InsynQ shall
notify Macola in the event InsynQ becomes aware that the Application Hosting
Services are unlawful in any specific country); and (b) shall comply with all
Department of Commerce and other United States exports controls regarding the
license and delivery of technology and Macola Products abroad including the
Export Administration Act of 1979, as amended, any successor legislation, and
the Export Administration Regulations issued by the Department of Commerce,
Bureau of Export Administration.
4. COMPENSATION.
4.1 Fees. InsynQ shall pay Macola the amounts set forth on Exhibit C attached
hereto and incorporated herein by reference pursuant to the schedule set forth
therein.
4.2 Late Fee. InsynQ shall pay Macola a late charge on outstanding amounts due
equal to one and one half (1 1/2) percent per month or the maximum amount
allowed by law, whichever is less.
4.3 Payment in United States Currency. All payments shall be made in United
States Dollars, free of any withholding tax and of any currency control or other
restrictions to Macola at the address indicated by Macola to InsynQ.
4.4 Payment Schedule. All payments for InsynQ services shall be due a payable
by the 15th day of each month following the month in which the actual services
were contracted.
4.5 Nonrefundable. Subject to Macola's substantial performance of its
obligations as set forth in this Agreement, all amounts received by Macola
hereunder shall be nonrefundable.
4.6 Royalty report. InsynQ will provide a monthly written report, in
substantially the same format as shown in Exhibit E, with respect to all Macola
Customers who are users of the Application Hosting Services for the previous
month, which shall be included with the payments as required by this Section 4.
4.7 Taxes. The fees payable to Macola are exclusive of any federal, state,
municipal, value-added, foreign withholding or other governmental taxes, duties,
fees, excises, or tariffs now or
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hereafter imposed on the such fees or the Application Hosting Services or this
Agreement, exclusive, in any event, of taxes assessed on the net income of
Macola or on its net worth. InsynQ shall be responsible for, and if necessary
reimburse, Macola for all such taxes, duties, fees, excises, or tariffs, except
for governmental or local taxes imposed on Macola's corporate net income or on
its net worth.
4.8 Audit. InsynQ shall keep such books and records as are required to document
payments due to Macola under this Agreement with respect to amounts due under
this Section 4. During the Term of this Agreement and for a period of eighteen
(18) months thereafter, Macola may examine such books and records, provided such
examination will not occur more than twice in any twelve (12) month period. Such
examinations will be carried out only during normal business hours with ten (10)
days advance written notice of intention to examine and audit.
5. InsynQ'S OBLIGATIONS.
5.1 Closing of Leads. InsynQ shall use its diligent good faith efforts to enter
into an Application Hosting Agreement or other similar agreement for the
Application Hosting Services with each lead identified by Macola or its Sub-
Marketers, and will, when requested by Macola, participate in presentations to
Macola Customers and in the preparation of responses to Requests for Proposal
and Requests for Information submitted to Macola which requests solicit
information or a proposal with respect to Application Hosting Services or the
like.
5.2 Updates to Information. InsynQ will advise Macola of all changes in the
Application Hosting Services, the Applications, or in the data center which
supports the Application Hosting Services, as well as all new or revised
information marketing information concerning the same.
5.3 No Warranties. In its dealings with Macola Customers, InsynQ shall make no
representation or statement concerning the quality, performance or other
characteristics of the Macola Products other than those which are consistent in
all respects with, and do not expand the scope of, any statements made by Macola
in Macola's standard marketing and promotional materials, Macola's then current
standard license agreements or as otherwise approved by Macola in a writing
addressed to InsynQ which expressly refers to this Section 5.3.
5.4 Uptime. InsynQ warrants that it shall maintain the following service levels
with respect to Macola Customers which purchase Application Hosting Services
("AHS Customers"): InsynQ's systems will be operational such that AHS Customers
have the ability to access the Applications and Macola Products, as applicable,
a minimum of 97% of the time InsynQ has contractually agreed with Macola that
access will be available. In the event that InsynQ is unable to meet the
guaranteed 97% service level agreement, Macola shall be compensated as follows:
The aforementioned up-time, does not include telecommunications lines, or their
ancillary components at the customer's site.
97% + uptime 0% discount
90% - 96.99% 7% discount off impacted customer's service fees
80% - 89.99% 17% discount off impacted customer's service fees
Reduced by an equal ratio 50% down time equals 50% discount off impacted
customer's service fees. [
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5.5 Training Fees. During the term of this Agreement, InsynQ shall provide an
initial one-day sales training to the existing Macola sales team free of charge
at Macola corporate headquarters. Subsequent sales trainings will be charged at
the rate of $1,000 per day and all related travel expenses at a location
centrally agreed upon by both parties. InsynQ will also provide a one day
technical administration training class to Macola and Sub-Marketers in
Sacramento, California in late May or June, 2000 free of charge. Subsequent
technical trainings will be charged at the rate of $1,000 per day and all
related travel expenses at a location centrally agreed upon by both parties
5.6 Maintenance and Support.
(a) Application Hosting Services in General. InsynQ shall provide maintenance
and technical support to Macola, Licensee's and End Users during InsynQ's
regular business hours (7 am to 7 pm, Pacific time) with on-call pager service
starting at 6 am Pacific time. All support shall be provided in English from
InsynQ's offices, via a 1-800 telephone line unless otherwise agreed in advance
in writing. InsynQ shall make best efforts to respond to a customer's "system
down" within two hours from the time that InsynQ is aware of such "system down".
Macola may make requests for support by telephone, pager, fax, e-mail or any
other reasonable means. InsynQ's obligation to provide support under this
Section 5.3 shall extend solely to requests for support received from Macola,
Licensee's and End Users. InsynQ shall designate appropriate engineering and
technically support staff that shall be available to assist Macola, Licensee's
and End Users in resolving any maintenance and technical support problems.
Support shall include a designated representative to act as a liaison between
InsynQ and Macola.
(b) Macola Products. InsynQ shall be solely responsible for providing Xxxxx 0
support defined as taking the Macola User's, Sub-Marketer's or Macola's first
call and identifying whether the incident is an application problem specifically
or a InsynQ service incident. InsynQ shall have no obligation to furnish any
assistance, information or documentation with respect to the Macola Products,
and InsynQ shall refer any customer service questions relating to such to
Macola.
5.7 Compliance with Law. InsynQ shall comply with all laws and regulations
applicable to InsynQ's performance hereunder and the provision of the
Application Hosting Services to Macola Customers. Without limiting the
generality of the foregoing, InsynQ shall comply with all Department of Commerce
and other United States exports controls regarding the license and delivery of
technology other than the Macola Products abroad including the Export
Administration Act of 1979, as amended, any successor legislation, and the
Export Administration Regulations issued by the Department of Commerce, Bureau
of Export Administration.
6.0 INTELLECTUAL PROPERTY
6.1 Trademark Use.
(a) Use. During the term of this Agreement, Macola may and without obligation
use and reproduce the Trademarks, including but not limited to InsynQ, Inc.(TM),
InterlynQ Server(TM), IdesQ Appliance(TM), and additional products as developed,
in connection with Macola's marketing, advertising, promotion, and distribution
of the Product and/or Services. Macola's use of the Trademarks shall not create
any right, title or interest therein. Macola shall use the Trademarks
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only in a manner which complies in all material respects with InsynQ's policies
in effect from time to time.
(b) Goodwill. If Macola, in the course of marketing and promoting the
Application Hosting Services, acquires any goodwill or reputation in any of the
Trademarks, all such goodwill or reputation shall automatically vest in InsynQ
when and as, on an on-going basis, such acquisition of goodwill or reputation
occurs, as well as at the expiration or termination of this Agreement, without
any separate payment or other consideration of any kind to Macola and Macola
agrees to take all such actions necessary to effect such vesting. Macola shall
not contest the validity of any of the Trademarks or InsynQ's exclusive
ownership of them.
(c) Adoption of Marks. During the Term of this Agreement, Macola shall not
adopt, use (except as provided herein), or register, whether as a corporate
name, trademark, service xxxx or other indication of origin, any of the
Trademarks, or any word or xxxx confusingly similar to the Trademarks in any
jurisdiction. Similarly, during the Term of this Agreement, InsynQ shall not
adopt, use, or register, whether as a corporate name, trademark, service xxxx or
other indication of origin, any of the trademarks, service marks, logos or
tradenames of Macola, or any word or xxxx confusingly similar to the same in any
jurisdiction. Neither party will register any Internet domain name which
contains or is confusingly similar to any of the other party's trademarks,
service marks, logos or tradenames.
6.2 Protection of Rights. Macola shall use reasonable efforts to protect
InsynQ's proprietary rights, to the extent that it is aware of those proprietary
rights, related to the Application Hosting Services, including without
limitation, InsynQ's copyright, patent, trade secret, and trademark rights
("Proprietary Rights"), and to cooperate without charge in InsynQ's efforts to
protect its Proprietary Rights. Macola shall promptly notify InsynQ of any known
or suspected infringements of InsynQ's Proprietary Rights that come to Macola's
attention. InsynQ shall have the exclusive right to institute infringement or
other appropriate legal action against alleged prospective or actual infringers
of its Proprietary Rights. InsynQ shall incur all expenses in connection
therewith and shall retain all monetary recoveries received therefrom. Macola
shall not take any action to jeopardize, limit or interfere with InsynQ's
ownership of and rights in the Application Hosting Services.
7. CONFIDENTIALITY.
7.1 Confidential Information. "Confidential Information" means (i) the terms
and conditions of this Agreement, and (ii) any and all other information
disclosed by one party to the other which is marked "confidential" or
"proprietary", including oral information which is designated confidential at
the time of disclosure, provided that it is reduced to a written summary marked
"confidential" which is supplied to the other party within thirty (30) days of
the oral disclosure. Subject to the provisions of Section 7.2, all information
regarding the specifications for the Application Hosting Services, including
without limitation, all information with respect to the use, installation and
operation of the Application Hosting Services (but not, in any event,
information of or concerning the identity of the Macola Customers purchasing the
Application Hosting Services), whether received by Macola from InsynQ or
developed by Macola, shall be deemed InsynQ Confidential Information whether or
not it is designated as confidential.
7.2 Exclusions. "Confidential Information" does not include any information
that the receiving party can demonstrate by written records: (a) was known to
the receiving party prior to its disclosure hereunder by the disclosing party;
(b) is independently developed by the receiving
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party; (c) is or becomes publicly known through no wrongful act of the receiving
party; (d) has been rightfully received from a third party authorized to make
such disclosure without restriction; (e) has been approved for public release by
the disclosing party's prior written authorization; or (f) has been produced or
disclosed pursuant to applicable law, regulation or court order, provided that
the receiving party provides prompt advance notice thereof to enable the
disclosing party to seek a protective order or otherwise prevent such
disclosure.
7.3 Preserving Confidentiality. Each party hereby agrees that it shall not use
any Confidential Information received from the other party other than as
expressly permitted under the terms of this Agreement or as expressly authorized
in writing by the other party. Neither party shall disclose the other party's
Confidential Information to any person or entity other than its officers,
employees and consultants who need access to such Confidential Information in
order to effect the intent of this Agreement and, as to consultants, who have
entered into written confidentiality agreements with that party consistent with
this Section 7.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Mutual Representations. Each party represents and warrants that it has
full power and authority to enter into this Agreement and that it has not
entered into any contract or commitment which shall interfere with the
performance of its obligations hereunder.
8.2 By InsynQ.
(a) General. InsynQ represents and warrants that: (i) InsynQ owns all right,
title and interest in and to the services; (ii) InsynQ has not granted, and will
not grant during the term of this Agreement, any rights in or to the Services
that conflict with the rights granted to Macola hereunder; (iii) to the best of
InsynQ's knowledge the provision of the Application Hosting Services does not
infringe any United States copyright, patent (issued as of the Effective Date),
trademark or trade secret of any third party; and (iv) InsynQ has the right,
power and authority to grant the rights and licenses specified in this
Agreement.
9. INDEMNIFICATION.
9.1 By InsynQ. InsynQ hereby agrees to indemnify, defend, and hold harmless
Macola from and against liabilities, obligations, losses, damages, injuries,
claims, demands, penalties, costs and expenses (including reasonable attorneys'
fees) of whatever kind and nature imposed or asserted against Macola resulting
from any third party claim, demand, or suit asserted or instituted against
Macola and arising out of or related to the relationship between the parties
under this Agreement, insofar as such third party claim, demand or suit is based
in whole or in part on (i) a breach of InsynQ's warranties and covenants
hereunder; (ii) any inaccuracy, omission, error, defect or mistake in any
information concerning the Application Hosting Services furnished by InsynQ to
Macola hereunder that Macola transmits to Macola Customers or Sub-Marketers;
(iii) an error or failure in the Application Hosting Services, other than errors
or failures in or caused by the Macola Products; or (iv) an allegation that the
Application Hosting Services or any Application infringes upon a patent,
copyright, trademark or other proprietary right of a third party, or
misappropriates a third party's trade secrets. InsynQ's obligations under this
Section 9.1 are subject to the conditions that InsynQ be given:
(a) prompt notice by Macola by telegram, fax transmission or telex (with
confirming notification by regular mail) of the initiation or existence of any
claim, demand or suit;
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(b) full opportunity to defend, compromise or settle the same as InsynQ may see
fit (provided that Macola may participate in such defense at its expense); and
(c) every reasonable assistance from Macola which InsynQ may, in its discretion,
require in responding to any such demand or claim or defending any such suit.
9.2 By Macola. Macola hereby agrees to indemnify, defend, and hold harmless
InsynQ from and against any and all liabilities, obligations, losses, damages,
injuries, claims, demands, penalties, costs and expenses (including reasonable
attorneys' fees) of whatever kind and nature imposed or asserted against InsynQ
resulting from any third party claim, demand, or suit asserted or instituted
against InsynQ and arising out of or related to the relationship between the
parties under this Agreement, insofar as such third party claim, demand or suit
is based in whole or in part on (i) a breach of Macola's warranties and
covenants hereunder; (ii) any inaccuracy, omission, error, defect or mistake in
the Macola Products and/or information concerning the same furnished by Macola
to InsynQ hereunder that InsynQ transmits to Macola Customers; or (iii) an
allegation that the Macola Products infringe upon a patent, copyright, trademark
or other proprietary right of a third party, or misappropriate a third party's
trade secrets. Macola's obligations under this Section 9.2 are subject to the
conditions that Macola be given:
(a) prompt notice by InsynQ by telegram, fax transmission or telex (with
confirming notification by regular mail) of the initiation or existence of any
claim, demand or suit;
(b) full opportunity to defend, compromise or settle the same as Macola may see
fit (provided that InsynQ may participate in such defense at its expense); and
(c) every reasonable assistance from InsynQ which Macola may, in its discretion,
require in responding to any such demand or claim or defending any such suit.
10. LIMITATION OF LIABILITY.
10.1 Limits on Types of Damages. SUBJECT TO SECTION 10.3, THE PARTIES SHALL
NOT BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOODWILL, OR BUSINESS
PROFITS, OR EXEMPLARY OR PUNITIVE DAMAGES, IRRESPECTIVE OF WHETHER SUCH CLAIM
ARISES IN TORT, CONTRACT OR OTHER THEORY OF LIABILITY.
10.2 Cap on Liability. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, AND
EXCEPT AS PROVIDED IN SECTION 10.3, UNDER NO CIRCUMSTANCES SHALL MACOLA OR
INSYNQ BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF
DAMAGES IN EXCESS OF AN AMOUNT EQUIVALENT TO THE SUM OF THE FEES PAID OR EARNED
HEREUNDER. The provisions of the Agreement allocate the risks between Macola and
InsynQ.
10.3 Exceptions. The provisions of Sections 10.1 and 10.2 shall not apply in
the following instances: (i) to limit damages resulting from conduct not
permitted under the marketing and promotional license rights granted herein or
under the hosting rights granted in Exhibit H; (ii) to limit a party's liability
arising under the indemnity obligations of this Section 9; (iii) to limit
damages arising from the occurrence of bodily injury (including death) and
damage to real
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property and tangible personal property caused in whole or part by the
negligence or willful misconduct of a party, its agents or employees; (iv) to
limit damages arising from breach of obligations relating to use or non-
disclosure of Confidential Information, as defined in Section 7; and (v) to
limit damages arising from breach of InsynQ's obligations under Exhibit H.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement ("Term") shall commence on the Effective
Date and continue for an initial term ("Initial Term") of three (3) years unless
earlier terminated as set forth herein. This Agreement shall automatically be
renewed for additional one year periods following the expiration of the Initial
Term ("Extensions"), unless either party, upon no less than sixty (60) days'
prior written notice, advises the other party that this Agreement will terminate
upon the expiration of the Initial Term or, if applicable, any Extension.
11.2 Termination for Breach or Insolvency. Each party shall have the right to
terminate this Agreement on written notice if (a) the other party ceases to do
business in the ordinary course or becomes insolvent (i.e., unable to pay its
debts in the ordinary course as they come due), or is declared bankrupt, or is
the subject of any liquidation or insolvency proceeding which is not dismissed
within ninety (90) days, or makes any assignment for the benefit of creditors,
or (b) the other party breaches any material term of this Agreement (including
any term of Exhibit H) and fails to cure such breach within thirty (30) days
after written notice thereof.
11.3 Effect of Termination. Upon the expiration or termination of this
Agreement:
(a) InsynQ shall immediately pay to Macola all Fees and any other amounts due
to Macola hereunder, and will pay consistent with the terms hereof any amounts
which may accrue following termination;
(b) Macola shall, within ten (10) days of such expiration or termination (i)
return to InsynQ or destroy all Confidential Information and all copies thereof;
(ii) erase any and all of the foregoing from all computer memories and storage
devices within Macola's possession or control and require that its Sub-Marketers
accomplish the same; and (iii) provide InsynQ with a signed written statement
certifying that it has complied with the foregoing obligations.
(c) All rights and licenses granted by InsynQ hereunder to Macola shall
terminate, provided that, unless Macola otherwise notifies InsynQ under Section
11.3(d) below, such termination shall not result in the termination of
Application Hosting Agreements entered into between InsynQ and Macola Customers.
(d) Upon any termination of this Agreement other by non-renewal by either
party under Section 11.1, Macola may elect (i) to permit InsynQ to continue to
host the Macola Products on the terms hereof for access and use by Macola Users
who have entered into an Application Hosting Agreement with InsynQ as of the
date of termination for a time specified by Macola (which time Macola may
establish or re-establish at any time at its discretion), but not to exceed the
expiration of the then current term (Initial Term or Extension, as the case may
be) of this Agreement; or (ii) to terminate InsynQ's right to host the Macola
Products. In either event, upon the termination of InsynQ' s right to host the
Macola Products, InsynQ will comply with the provisions of Exhibit H in respect
of termination. Fees will continue to be payable to Macola for
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Application Hosting Services for the Macola Products which are provided
following termination pursuant to this provision.
(e) InsynQ agrees that it will offer maintenance and support services to
Macola Customers after termination on terms substantially similar to those under
which it provides such services to customers who have purchased the Application
Hosting Services directly from InsynQ or through other marketers and resellers
of such services.
11.4 No Liability. In the event of termination by either party in accordance
with any of the provisions of this Agreement, neither party shall be liable to
the other because of such termination for compensation, reimbursement or damages
on account of the loss of prospective profits or anticipated sales or on account
of expenditures, inventory, investments, leases or commitments in connection
with the business or goodwill of InsynQ or Macola. Termination shall not,
however, relieve either party of obligations occurred prior to such termination.
The provisions of this Agreement relating to warranties, confidentiality,
limitation of liability, indemnification and payment obligations shall survive
the termination or expiration of this Agreement, as shall the provisions of
Section 12 hereof.
12. MISCELLANEOUS.
12.1 Assignment. This Agreement will be binding upon and inure to the benefit
of the parties hereto and their permitted successors and assigns. Neither party
may assign or otherwise transfer this Agreement or its rights or obligations
hereunder without the other party's prior written consent, which consent may not
be unreasonably withheld. Any assignment or other transfer without the other
party's prior written consent will be null and void. However, either party may
assign this Agreement by notice to but without the other party's consent (i) to
a third party to which substantially all of the assigning party's assets are
sold, assigned or otherwise transferred, provided that such third party is not a
trustee in a bankruptcy or a receiver appointed for the benefit of the assigning
party's creditors; or (ii) to its parent or any other entity under common
ownership or control with such entity upon written notice to the other party.
12.2 Waiver and Amendment. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed by
the party to be charged. No failure or delay by either party in exercising any
right, power, or remedy under this Agreement shall operate as a waiver of any
such right, power or remedy.
12.3 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by
the laws of the State of Washington. For any disputes arising out of this
Agreement, the parties consent to the personal and exclusive jurisdiction of,
and venue in, the state or federal courts within Tacoma, WA.
12.4 Notices. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered delivered and
effective when (a) personally delivered; (b) the day following transmission if
sent by confirmed facsimile; or (c) three (3) days after posting when sent by
certified or registered US Mail or by registered private carrier (e.g., DHL,
Federal Express, etc.). Notice shall be sent to the parties at the addresses set
forth on the first page of this Agreement or at such other address as shall be
given by either party to the other in writing.
11
12.5 Independent Contractors. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be an
employee, agent, partner or legal representative of the other for any purpose
and shall not have any right, power or authority to create any obligation or
responsibility on behalf of the other.
12.6 Severability. If any provision of this Agreement shall be held by a court
of competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
12.7 Complete Understanding. This Agreement, including all Exhibits attached
hereto and hereby incorporated by reference, shall constitute the final,
complete and exclusive agreement between the parties with respect to the subject
matter hereof, and supersedes any prior understandings, proposals, negotiations,
and communications, oral or written, between the parties or their
representatives. This agreement may not be modified except in writing signed by
the duly authorized representatives of the parties hereto.
12.8 Further Assurances. Each party agrees to do and perform all such further
acts and things and shall execute and deliver such other agreements,
certificates, instruments and documents necessary or that the other party may
deem advisable in order to carry out the intent and accomplish the purposes of
this Agreement and to evidence, perfect or otherwise confirm the other party's
rights hereunder.
IN WITNESS WHEREOF, the duly authorized representatives of each of the parties
hereto have executed this Agreement as of the day and year first written above.
InsynQ, Inc. Macola, Inc.
By:________________________ By:/s/ Xxxx X. Xxxxxx
------------------
Name: Xxx Xxxxxxx Name: Xxxx X. Xxxxxx
---------------
Title: President/COO Title: CFO
--------------
12
EXHIBIT A
APPLICATIONS
Microsoft Office Suite, Sun's StarOffice software, GoldMine! Act, and all other
associated applications currently being hosted by InsynQ.
InsynQ will provide Macola with an updated Application list no less than one
time per quarter.
13
EXHIBIT B
Macola Products
InsynQ agrees to host all pre-tested Macola applications designated by Macola
from time to time. Those applications designated by Macola as of the Effective
Date are set forth below. Untested applications will be hosted by InsynQ as
requested by Macola after InsynQ has tested and certified that additional
products work well and meet minimum performance guidelines on our server farm.
InsynQ's charges for said testing services shall be one hundred fifty ($150)
dollars per hour for each hour of time spent by an InsynQ engineer. There will
be no charge for testing services conducted remotely by Macola personnel.
Macola Products designated as of the Effective Date:
Macola(R) Progression Series
14
EXHIBIT C
Royalty and Billing Schedule
InsynQ is responsible for setting prices charged to its customers. The royalties
payable to Macola for each Macola Customer purchasing Application Hosting
Services will be calculated by paying to Macola the greater of the amounts
specified in Part I and Part II below.
Part I
------
The Part I royalty will be calculated according to the subscription software
license fee table defined by Macola in Attachment 1 to this Exhibit C.
Part II
-------
The Part II royalty will be calculated as follows:
Step I: Calculate the total amount charged by InsynQ to the Macola Customer on
a per seat basis.
Step 2: Deduct from the Step 1 total InsynQ's Application Hosting Services fee
set forth below.
Step 3: The remainder is the Part II royalty.
InsynQ will invoice the end-user customers for the total of the application
hosting fee and the subscription software license fee, and provide payment to
Macola by the 15/th/ of each month for the number subscribers in the previous
month. Royalty payments to Macola shall be attached with a royalty report
showing the name of the customer, their address and the number of seats being
hosted.
The Macola subscription software license fee set forth in Exhibit C may be
revised from time to time by Macola, and Macola will notify InsynQ in writing
thirty (30) days in advance of any changes in fees.
InsynQ's Application Hosting Services fee
-----------------------------------------
Number of Seats Per Subscriber Per Month Hosting Fee
0 -- 500 $75.00
501 -- 1,000 $70.00
1,001+ $65.00
InsynQ may change the Application Hosting Services fee upon sixty (60) days
prior written notice to Macola.
15
Attachment 1 to EXHIBIT C
MACOLA SUBSCRIPTION SOFTWARE LICENSE FEE
The royalties payable to Macola for each Macola Customer purchasing Application
Hosting Services will be as follows:
36 month Contract with Client
-----------------------------
Number of seats Per Subscriber Royalty to Macola
--------------- --------------------------------
0 -- 500 $124.00
501 -- 1,000 $129.00
1,001+ $134.00
18-24 Month Contract with Client
--------------------------------
Number of seats Per Subscriber Royalty to Macola
--------------- --------------------------------
0 -- 500 $150.00
501 -- 1,000 $155.00
1,001+ $160.00
12 Month Contract with Client
-----------------------------
Number of seats Per Subscriber Royalty to Macola
--------------- --------------------------------
0 -- 500 $175.00
501 -- 1,000 $180.00
1,001+ $185.00
Contract with Progression 6.2 Client that upgrades to InsynQ
------------------------------------------------------------
Number of seats Per Subscriber Royalty to Macola
--------------- --------------------------------
0 -- 500 $74.00
501 -- 1,000 $79.00
1,001+ $84.00
16
EXHIBIT D
MACOLA(R) SOFTWARE RESELLER OBJECT AGREEMENT
Reseller # 73948 Date 5-30-00
----- -------
Macola, Inc., an Ohio corporation, hereinafter referred to
as "Macola" hereby grants to INSYNQ, INC, a [X]
corporation, [_] partnership, [_] sole proprietorship with
offices located at 0000 Xxxxxxxx, Xxxxxx, XX 00000 Phone #
000-000-0000, hereinafter alternately referred to as
"Licensee" or "Reseller," a non-exclusive non-transferable
license to market, distribute and sublicense, under the
terms and conditions set forth below, certain of Macola's
proprietary computer software items and certain computer
software proprietary to third parties which Macola has
rights to distribute, all as more fully identified in
paragraph 1.3 below.
1. DEFINITIONS
1.1 The "Software" shall include all software, both Macola(R) software and
software proprietary to third parties, described on Macola's current
standard price list ("Price List") as issued by Macola from time to time. A
software product listed on the Price List is hereinafter individually
referred to as a "Module."
1.2 "Certification" means satisfaction by Licensee of the requirements and
completion of the training established in Macola's Policies and Guidelines,
as described in paragraph 4.7 below, which are required for the marketing,
distribution, sublicensing, installation and support of a Module. Licensee
is "certified" as to a Module when all then current requirements for
Certification in Macola's Policies and Guidelines have been met.
1.3 The "Licensed Software" is comprised of those Modules for which Licensee
has achieved and maintains in force Certification. Modules included among
the Licensed Software are "Licensed Modules". If Licensee fails to maintain
Certification in force for any Licensed Module, such Module shall cease to
be a Licensed Module as of the date Licensee is no longer certified, unless
otherwise provided in the Policies and Guidelines.
The Licensed Software shall include:
a) all machine executable code delivered hereunder ("Object Code"); and
b) all information contained in any user documentation ("User's Manual(s)")
supplied; and
c) any subsequent corrections, enhancements or modifications to the Licensed
Modules in machine executable code format which Macola may elect to furnish
to Licensee during the term of this License.
Licensed Software which is proprietary to third parties is referred to as
"Third Party Software". Licensed Software which is proprietary to Macola,
including the Macola(R) software, is referred to as "Macola Software".
1.4 "Demonstration" or "Demo(s)" shall mean a non-warranted, "AS IS",
restricted use representation of the Licensed Software in machine
executable code only with limitations in printing, entry of a company name
dates and on other functions as determined by Macola from time to time.
1.5 An "Eligible Computer System" shall be any one of the following:
a) any single user computer system running the Licensed Software under a
Macola supported operating system.
b) A multi-user system connecting up to five (5) computer workstations or
terminals concurrently using the Licensed Software; except that, should the
individual computer workstations or terminals be disconnected from the
multi-user system, and continue to run the Licensed Software in any form
then each of these disconnected computers shall be considered to be a
single Eligible Computer System.
1.6 An "Object Pack" or "Package" shall consist of the Object Code and the
User's Manual, for one Licensed Module.
1.7 An "Object Use" means the use of one Object Pack for one Licensed Module,
and is defined as occurring when such Object Pack is first registered.
1.8 A "LAN/USER Group" shall consist of each additional group of five (5)
computer workstations or terminals in addition to the multi-user
system defined in paragraph 1.5b, connected to an Eligible Computer System.
1.9 A "LAN/USER Group Use" means the use of one LAN/USER Group and is defined
as occurring when one such LAN/USER Group is first registered.
1.10 "Burst Pack" shall mean the sealed envelope or other package containing the
Object Code with a user license agreement printed on the face side or
otherwise referenced thereon which must be unsealed by the customer pnor to
the installation and use of the Licensed Software.
1.11 "Registration" means copying a registration file supplied by Macola onto an
Eligible Computer System on which the Licensed Software has been installed.
The registration file includes encrypted information on the End User's name
and purchased Object Packs and LAN/USER Group Uses.
1.12 "Registered Software" shall mean a specific Object Pack on a specific
Eligible Computer System, or LAN/USER Group, described in a registration
file for which Registration has been completed, which displays a specific
End User's company name and address, on a copyright and registration screen
that displays upon initial accessing of the Licensed Software.
1.13 "End User" means any entity which has accepted or signed, as required, the
applicable Macola-approved license agreement for the Licensed Module in
question and to which such Licensed Module has been provided.
1.14 The terms "Module," "Licensed Module," "Registered Software," "Object
Code," "User Manual(s)," and "Object Pack(s)" as used herein shall refer to
the whole as well as to any portions thereof, and also to any copies made
of such materials.
1.15 "Consultant" means any entity that has entered into a Macola Qualified
Consultant Agreement.
1.16 "Support Subscription Service Agreement" (SSSA) shall mean the agreement
for Support Services provided to Licensee by Macola, which must be renewed
annually as more fully set forth in the SSSA.
2. PROMOTION, ORDERS, FEES AND PAYMENTS
2.1 Licensee agrees to use reasonable diligent efforts to actively promote the
distribution and license of the Licensed Software.
2.2 Each order placed by Licensee shall be deemed to incorporate all of the
terms and conditions of this Agreement. Licensee may place orders only for
Licensed Modules. ALL ORDERS ARE EXPRESSLY LIMITED TO THE TERMS HEREOF AND
ABSENT AN EXPRESS WRITTEN AGREEMENT BY MACOLA AND LICENSEE ANY ADDITIONAL
OR DIFFERENT TERMS ARE OBJECTED TO WITHOUT FURTHER
17
NOTIFICATION. Each order shall be subject to acceptance by Macola, in its
sole discretion, shall be made in the manner and shall comply with all
requirements of this Agreement and any requirements set forth in the
Policies and Guidelines in effect from time to time.
2.3 During the term of this Agreement, Licensee may refer to itself as a
"Macola Reseller" solely in connection with Software. No rights are granted
to Licensee to use trademarks and trade names of Macola, except the limited
permission for Licensee to use the trademarks "MACOLA(R)" and such other
Macola Trademarks as Macola from time to time authorize Licensee to use
hereunder, solely to identify Macola's products marketed under this
Agreement. Licensee shall provide to Macola for prior review and written
approval all promotional, advertising and other materials and activities
using or displaying the trademarks or trade names of Macola. Licensee
agrees to change or correct, at Licensee's expense, any such material which
Macola in its sole judgment, determines to be inaccurate, objectionable,
misleading or a misuse of its trademarks or trade names. Permission granted
relevant to the trademarks of Macola shall terminate with the expiration or
termination of this Agreement. Upon such expiration or termination,
Licensee shall immediately cease referring to itself as a "Macola
Reseller," and shall immediately cease using the marks "MACOLA" and
"PROGRESSION SERIES" and any other trademarks or trade names of Macola.
2.4 All fees, charges, uses and other sums set forth herein are expressed in
and shall be paid in United States Dollars, unless otherwise agreed by
Macola, and are non-refundable.
2.5 Licensee shall pay Macola a fee as specified on Macola's then current Price
List for all products ordered hereunder which becomes due and payable under
the terms and conditions as are specified on the Price List, which are
subject to change by Macola from time to time without notice. Overdue
payments may, at the option of Macola, be charged interest at the rate of
1.5% per month, or the maximum permitted by applicable law, whichever is
less.
2.6 In addition to any other sums payable hereunder, Licensee shall pay to or
reimburse Macola upon demand for amounts equal to any taxes, however
designated, arising from or based upon the fees, this Agreement, the
License, or the Licensed Software and any associated media and Manuals
furnished for their use (but not including any taxes based on Macola's net
income) and related interest and penalties, if any, imposed by governmental
authority at any time. If, under applicable law, Licensee is required to
withhold any tax on any payments due Macola, then the amount of the payment
will be automatically increased to totally offset such tax, so that the
amount actually remitted to Macola, net of all taxes, equals the amount
invoiced or otherwise due. Licensee will promptly furnish Macola with the
official receipt of payment of these taxes to the appropriate taxing
authority.
3. TITLE, COPYRIGHT, PROPRIETARY RIGHTS, AND TRADE SECRETS
3.1 Licensee understands and agrees that the Software embodies substantial
creative efforts. Any portions thereof marked as trade secrets contain
confidential information, ideas and expressions. Any and all copyright,
trade secrets, patent, and other intellectual and proprietary rights in the
Software are and remain the valuable property of Macola or its licensors.
3.2 Aspects of the Software that are Macola trade secrets without the necessity
of separate marking include but are not limited to the specific design and
structure of such tasks as interactive data entry, file handling, report
generation and the like.
3.3 Licensee shall not alter or remove any Macola copyright, proprietary
rights, and/or trade secrets notices, and shall not do or fail to do any
act or thing which will impair any of Macola's or its licensors'
proprietary or other rights in and to the Software and any trademarks,
service marks and trade names of Macola.
3.4 Licensee shall include reasonable facsimiles of any Macola or third party
copyright, proprietary, and/or trade secrets notices on each and every copy
it makes of the Licensed Software in the same manner as provided on the
materials comprising the Licensed Software received from Macola.
4. SCOPE OF LICENSE
4.1 Licensee may, on a non-exclusive, non-transferable basis
a) use the Licensed Software as an End User for its own internal data
processing purposes only, and subject to the applicable Macola End User
signed or unsigned license agreement form:
b) sublicense the Licensed Software, consistent with Section 6, where a
standard form of Sublicense Agreement provided by Macola is required to be
used:
c) use the Licensed Software as a data processing professional which installs
and registers Object Packs and LAN/USER Groups to End Users for Object Use
and LAN/USER Group Use, and only for the purpose of installing and
registering such Object Packs and LAN/USER Groups:
d) as a distributor of Macola which distributes the Licensed Software to other
licensees or Consultants of Macola (as designated by Macola in writing) to
install and register Object Packs and LAN/USER Groups to End Users for
Object Use and LAN/USER Group Use; according to all the terms and
conditions set forth in this Agreement.
4.2 Licensee is strictly prohibited from using the Licensed Software on any
computer system which is not an Eligible Computer System, as defined in
paragraph 1.5 above.
4.3 Each Package or LAN/USER Group used by Licensee shall count as one Object
Use or LAN/USER Group Use for each Eligible computer system on which it is
used.
4.4 Licensee may not copy the Licensed Software except as specified in
paragraph 4.6. All Object Packs, LAN/USER Groups, and registration files
required to exercise its rights under paragraph 4.1 above must be obtained
from Macola.
4.5 Licensee must maintain an active Support Subscription Service Agreement
(SSSA) with Macola as an obligation to this Agreement. Unless otherwise set
forth in the Policies and Guidelines, a current valid SSSA covering
Licensee is required to be in force in order for Licensee to be certified
as to any Modules. The SSSA also defines levels of services provided to
Licensee by Macola, all as more fully set forth therein.
4.6 Licensee may make and maintain up to three (3) back-up copies of the
Licensed Software provided they are used for back-up purposes, and Licensee
maintains possession of the back-up copies.
4.7 As a condition of its continued enjoyment of rights hereunder, Licensee
agrees to comply at all times with any Macola policies and guidelines
applicable to resellers and distributors as may be in effect during the
term of this Agreement ("Policies and Guidelines"), including but not
limited to any Partner Programs Requirements or annual performance
requirements. Macola will notify Licensee of the Policies and Guidelines,
if any, in effect as of the Effective Date, and will give Licensee notice
of the adoption of and changes in such guidelines, policies and
requirements as they may occur from time to time hereafter.
4.8 Regardless of any disclosure made by Licensee to Macola of an ultimate
destination of the Licensed Software, Licensee acknowledges that the
Licensed Software and all related technical information, documents and
materials are subject to export controls under the U.S. Export
Administration Regulations. Licensee will (i) comply strictly with all
legal requirements established under these controls, (ii) cooperate fully
with Macola in any official or unofficial audit or inspection that relates
to these controls and (iii) not export, reexport, divert, transfer or
disclose, directly or indirectly, any Software or Module or related
technical information, document or material or direct products to any of
the countries that are restricted by the U.S. Commerce Department,
executive order or otherwise or to any national or resident thereof unless
Licensee has obtained the prior written authorization of Macola and the
U.S. Commerce Department.
4.9 All rights, without limitation, are reserved to Macola to cease publishing,
licensing or distributing any or all Modules or to alter, change the
design, or development of said products.
5. UPDATES AND SUPPORT TO THE LICENSED SOFTWARE
5.1 Except as otherwise provided in the Policies and Guidelines, Macola shall
provide Licensee with support and updates or upgrades to the Licensed
Software which may become available from Macola under the terms and
conditions of Macola's SSSA.
5.2 Licensee is responsible for providing support, updates and upgrades to its
End Users. Macola reserves the right, however, at its election to offer
direct support to End Users, and to directly provide updates and upgrades
to End Users.
6. LICENSING, INSTALLATION AND REGISTRATION RIGHT
6.1 The Licensed Software may be made available as determined by Macola to
Licensee to market under (a) a standard form of Sublicense Agreement
provided by Macola to be signed by the customer or (b) a standard form of
"Burst Pack" License Agreement provided by Macola that need not be signed.
Macola will notify Licensee in writing of the Licensed Modules which may be
marketed using "Burst Pack" License Agreements, and the circumstances under
which such non-signed license agreements may be used. Except as so
notified, a signed Sublicense Agreement is required in all instances.
6.2 Licensee agrees that where a signed Sublicense Agreement is required it
will provide and distribute the Licensed Software to customers only
pursuant to the terms and provisions of Macola's standard form of
Sublicense Agreement in effect from time to time during the term of this
Agreement. Where a "Burst Pack" unsigned License Agreement is permitted,
Licensee agrees that it will (i) notify the customer at the time of order
that the customer's acceptance of a license agreement is required as a
condition of use of the Licensed Software: (ii) ensure that an unopened
"Burst Pack" containing the
18
applicable Licensed Software is delivered to the customer; (iii) ensure
that the customer understands the meaning of the applicable license and
licensing in general prior to any installation of the Licensed Software by
Licensee or a Consultant: and (iv) accept return of an unopened "Burst
Pack" package from customers who do not wish to be bound by the license
agreement and in such cases return all moneys paid by such customer for the
applicable Licensed Software.
6.3 Licensee shall obtain Macola's prior written approval of any proposed
amendment or change to the Sublicense Agreement form. Licensee may not
change the "Burst Pack" unsigned License Agreement form. No delivery of any
copies of Licensed Software requiring a signed license agreement shall be
made or permitted by Licensee until Licensee has first obtained the
customer's assent to and signature on a Sublicense Agreement covering the
Licensed Software in question. Licensee shall promptly deliver a copy of
all such executed Sublicense Agreements to Macola. All Sublicense
Agreements require Macola's written approval to become effective.
6.4 Except as may be expressly provided herein or in any Macola end-user
license agreement executed by Licensee. Licensee agrees not to duplicate,
manufacture, reverse engineer, decompile or copy Software. Except as
provided herein, Licensee shall not, and shall require that its End Users
do not, copy or modify any Software outside of permissible copies as
outlined in a Sublicense Agreement or "Burst Pack" License Agreement, where
permitted. Licensee will enforce the terms of Sublicense Agreements and
will cooperate fully with Macola should Macola elect to exercise its rights
under such Sublicense Agreements or otherwise.
6.5 Licensee shall provide Object Packs contained in unopened Burst Packs to
Consultants for distribution to customers, provided that prior to any
Consultant's receipt of any Object Packs, the Consultant shall enter into a
Qualified Consultant Agreement with Macola and that Licensee instructs the
Consultant on items (ii) to (iv) in paragraph 6.2 above and obtains the
Consultant's agreement to comply with such provisions.
6.6 Licensee is strictly prohibited from transferring the Object Packs for use
on any computer system which is not an Eligible Computer System.
6.7 Each Object Pack or LAN/USER Group Registered by Licensee or a Consultant
shall count as one Object Use or LAN/USER Group Use for each computer
system on which it is used as defined in Section 1.5.
6.8 In the event the End User wishes to use one or more Object Packs or
LAN/USER Groups on more than one Eligible Computer System, individual
Object Packs or LAN/USER Groups must be purchased and Registered for each
such Eligible Computer System, and each Object Pack or LAN/USER Group used
on each Eligible Computer System shall count as one Object Use or LAN/USER
Group Use.
6.9 Unless Macola has entered into a direct support agreement with the End
User, Licensee is responsible for the support of End Users to whom it
distributed the Licensed Software. Macola's support of Licensee in
connection with any End Users which do not have a direct support
relationship with Macola shall be provided solely under the terms and
conditions of the Macola SSSA.
6.10 Demo's and User's Manuals may be purchased from Macola to be provided to
prospective customers subject to the Macola Policies and Guidelines.
7. PROGRAMMING LANGUAGE, OPERATION SYSTEM, EQUIPMENT CONFIGURATION AND
PREPARATORY PROCEDURES
7.1 Licensee understands and agrees that:
a) in order for the Licensed Software to be functional, a correct copy of the
specific operating system and correct system manager from Macola are
required; and
b) the Licensed Software requires a computer hardware system with an adequate
amount of memory available for operation of the Licensed Software after the
operating system and any necessary programs have been loaded into memory;
and
c) the Licensed Software requires sufficient mass storage, and a compatible
monitor and printer.
d) that such system manager, memory and mass storage requirements may change
depending upon changes to factors which may be out of the control of
Macola.
8. WARRANTIES AND LIMITATION OF LIABILITY
8.1 Macola warrants that it has full power and authority to enter into this
Agreement and to grant to Licensee the rights herein granted.
8.2 Licensee warrants that it has full power and authority to enter into this
Agreement and that it has not entered into any contract or commitment which
shall interfere with the performance of its obligations hereunder.
8.3 Except for the warranties set forth in paragraph 8.1 above, Macola makes no
warranty to Licensee concerning the Software, Licensed Software or
otherwise. Any such Macola warranties are made directly to the End User and
shall only be as provided in a Macola-approved Sublicense Agreement or
"Burst Pack" unsigned License Agreement. LICENSEE UNDERSTANDS AND AGREES
THAT THE LICENSED SOFTWARE IS PROVIDED TO IT HEREUNDER STRICTLY ON AN "AS
IS" BASIS. EXCEPT AS EXPRESSLY STATED IN PARAGRAPH 8.1 ABOVE, MACOLA MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. MACOLA
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.4 LICENSEE SHALL MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE QUALITY,
PERFORMANCE OR OTHER CHARACTERISTICS OF THE SOFTWARE OR LICENSED SOFTWARE
OTHER THAN THOSE WHICH ARE CONSISTENT IN ALL RESPECTS WITH, AND DO NOT
EXPAND THE SCOPE OF, THE WARRANTIES MADE BY MACOLA DIRECTLY TO END USERS IN
THE STANDARD MACOLA-APPROVED SUBLICENSE FORM OR "BURST PACK" LICENSE
AGREEMENT FORM OR AS OTHERWISE APPROVED BY MACOLA IN A WRITING ADDRESSED TO
LICENSEE WHICH EXPRESSLY REFERS TO THIS PARAGRAPH 8.4.
8.5 UNDER NO CIRCUMSTANCES WILL MACOLA OR ITS DIRECT AND INDIRECT SUPPLIERS BE
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL
DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON
CLAIMS OF LICENSEE OR ITS DEALERS, END USERS OR CUSTOMERS (INCLUDING, BUT
NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF
THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF
OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE
OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE
AGGREGATE LIABILITY WHICH MACOLA AND ITS DIRECT AND INDIRECT SUPPLIERS MAY
INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO
MACOLA BY LICENSEE FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE
DAMAGE. Both parties acknowledge that the foregoing limitations on
liabilities and the disclaimer of warranties set forth in paragraph 8.3
represent a mutually agreed upon allocation of risk and the consideration
provided in this Agreement has been calculated to reflect such allocation
of risk.
9. CONFIDENTIALITY
9.1 Disclosure of and access to the portions, if any, of the Software marked as
confidential or as a trade secret ("Confidential Software") shall be
permitted to Licensee's employees on a need-to-know basis provided that
Licensee
19
ensures that all such parties are prohibited from any unauthorized use or
copying of any such Confidential Software.
9.2 Licensee shall take any and all reasonable actions necessary or desirable
to ensure continued confidentiality and protection of any Confidential
Software as required hereunder, and to prevent unauthorized access
thereto or use thereof by any entity.
9.3 Licensee shall notify Macola promptly and in writing of the existence of
and circumstances surrounding any unauthorized knowledge, possession, or
use of the Software by any entity.
9.4 Macola is hereby authorized to make reasonable inquiries concerning
Licensee's compliance with paragraphs 9.1 through 9.3 above.
9.5 Since unauthorized use or transfer of the Software may diminish
substantially the value to Macola of the copyright, proprietary rights
and/or trade secrets interests that are subject of this Licensee, if
Licensee breaches any of its obligations with respect to limited use or
confidentiality of the Software, Macola shall be entitled to equitable
relief to protect its interest therein, including, but not limited to
injunctive relief as well as money damages.
10 TERMINATION
10.1 This Agreement shall be in effect from the date this Agreement is first
accepted by Macola (the "Effective Date") and shall be valid until
terminated as provided below, or until a point in time twenty (20) years
hence, whichever comes first.
10.2 Licensee may terminate this Agreement at any time by written notice
thereof to Macola.
10.3 Macola may terminate this Agreement, effective upon written notice
thereof to Licensee in the event that:
a) Licensee fails to observe any of its obligations under this Agreement
with respect to registering End Users; or
b) Licensee neglects or fails to perform or observe any other material term
or obligation set forth in this Agreement; or
c) Licensee neglects or fails to perform or observe any material provision
of the Macola Policies and Guidelines; or
d) Licensee fails to achieve 100% of its applicable annual performance level
quota established by Macola consistent with the Macola Policies and
Guidelines and provided to Licensee in advance of the measurement period;
or
e) Licensee becomes insolvent or voluntarily bankrupt, or if an involuntary
petition in bankruptcy is not dismissed within ninety (90) calendar days
of filing, or if a receiver, assigned or other liquidating officer if
appointed for all or substantially all of the business of Licensee or if
Licensee makes an assignment for the benefit of creditors; or
f) If a outstanding balance for moneys due with Macola exists for any period
of more than 120 days.
10.4 Upon termination of this License for any reason whatsoever, then:
a) Licensee shall immediately discontinue all marketing, distribution, use
and installation of the Licensed Software; and
b) within ten (10) calendar days of termination, Licensee shall certify in
writing to Macola that Licensee has returned all copies of the Software
in its possession or control, including any parts thereof which have been
modified, merged or included with other software.
10.5 Notwithstanding anything to the contrary in this Agreement, expiration or
termination of this Agreement, however occurring, shall neither relieve
Licensee of any accrued obligations to pay money to Macola nor entitle
Licensee to any refund of amounts paid hereunder.
10.6 The provisions of paragraphs 2.3, 2.6, 6.4 and Sections 3, 8, 9, 10 and
11 hereof survive any termination of this Agreement.
11 GENERAL
11.1 Licensee may not assign or transfer (by operation of law or otherwise)
all or any part of its rights or obligations under this Agreement without
Macola's prior written consent. Further, any change in control of
Licensee, as defined in 17 CFR (S)230.405 (or any successor provision),
shall be deemed an attempt by Licensee to assign or transfer this
Agreement. Macola may assign this Agreement by notice to Licensee.
11.2 Licensee may not assign, delegate, sub-contract or otherwise transfer
this Agreement or any of its rights or obligations without Macola's prior
approval. The rights granted by Macola to Licensee are personal to
Licensee, and Licensee will not appoint any independent agent,
representative, commissionaire, Licensee, reseller or other third person
to promote or market the Licensed Software. Any attempt to do any of the
foregoing without Macola's approval will be void.
11.3 In no event shall Licensee'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 Licensee under bankruptcy, insolvency, or reorganization
proceedings.
11.4 Nothing contained in this Agreement shall be construed as creating a
joint venture, partnership, or employment relationship between Macola and
Licensee, or as authorizing Licensee to act as Macola's agent or
representative.
11.5 All notices required to be given under this Agreement shall be given in
writing and shall be deemed to have been given when (i) delivered by
hand, (ii) mailed by prepaid registered or certified mail, return receipt
requested, (iii) sent by facsimile device, with a copy sent at the same
time by registered or certified mail, or (iv) sent by commercial courier
with written verification of the receipt to each party at its addresses
set forth herein or at such other address as either party may designate
to the other by notice as required hereby.
11.6 If any party is required to engage in any proceedings, legal or
otherwise, to enforce its rights under this Agreement, the prevailing
party shall be entitled to recover from the party(ies) in default, in
addition to any other sums due, the reasonable attorney fees, costs and
necessary disbursements involved in said proceedings.
11.7 THIS AGREEMENT AND ALL ORDERS HEREUNDER SHALL BE DEEMED TO HAVE BEEN
EXECUTED AND PERFORMED IN AND SHALL BE GOVERNED BY, CONSTRUED,
INTERPRETED, AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH
THE LOCAL LAWS OF THE STATE OF OHIO. MACOLA AND LICENSEE HEREBY CONSENT
AND AGREE THAT JURISDICTION AND VENUE FOR ANY CLAIM OR CAUSE OF ACTION
ARISING UNDER OR RELATED TO THIS AGREEMENT OR ANY ORDER SHALL BE PROPERLY
AND EXCLUSIVELY IN THE STATE OR FEDERAL COURTS FOR XXXXXX COUNTY, OHIO,
AND EXPRESSLY WAIVE ANY AND ALL RIGHTS WHICH THEY MAY HAVE OR WHICH MAY
HEREAFTER ARISE TO CONTEST THE PROPRIETY OF SUCH CHOICE OF JURISDICTiON
AND VENUE.
11.8 Should any of the provisions of this Agreement be found to be invalid by
any court of competent jurisdiction, the remainder of this Agreement
shall nonetheless remain in full force and effect.
11.9 No modification, addition to or waiver of any rights, obligation or
default shall be effective unless in writing and signed by the party
against whom such is sought to be enforced. One or more waivers of any
rights, obligation or default shall not be construed as a waiver of any
subsequent rights, obligation or default.
11.10 Licensee will indemnify Macola against any damage, loss, liability or
expense (including lawyers' fees) that Macola may incur (i) with respect
to any negligent act or omission by, or willful misconduct of, Licensee's
employees or agents or (ii) as a result of (a) any modification or
amendment of the prescribed terms of an End User license agreement that
Macola did not specifically approve, (b) any warranty, condition,
representation, indemnity or guarantee granted by Licensee or provided by
law in addition to or in lieu of the warranties expressly granted by
Macola to the End User in Macola's Sublicense Agreement or "Burst Pack"
License Agreement, (a) any omission or inaccuracy in Licensee's
advertisements and promotional materials that relate to the Software, or
(d) any modification of or addition to the Software not provided or
approved by Macola. This paragraph will not be construed to limit or
exclude any other claims or remedies which Macola may assert under this
Agreement or by law.
11.11 Once this Agreement is executed, all previous agreements between the
parties shall be inadmissible to explain, modify, or contradict this
Agreement. This Agreement replaces and supersedes all prior agreements
between the parties in respect of the marketing, distribution,
installation, use, modification and sublicensing of the Software,
including but not limited to all Macola Software in both source code and
object code forms.
20
LICENSEE ACKNOWLEDGES THAT IT HAS READ ALL PAGES OF THIS AGREEMENT, UNDERSTANDS
IT AND AGREES TO BE BOUND BY ITS TERMS AND FURTHER AGREES THAT IT IS THE
COMPLETE AND EXCLUSIVE STATEMENTS OF THE AGREEMENT BETWEEN THE PARTIES, AND THAT
IT SUPERSEDES ALL PROPOSALS, ORAL, OR WRITTEN AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, Licensee and Macola have caused this Agreement to be
executed by their duly authorized and empowered officers or representatives as
of the dates set forth below.
ACCEPTED BY:
XXXXXX XXXXXXX, SP - INSYNQ, DNC MACOLA, INC
--------------------------------
Print Licensee Full Legal Name
/s/ Xxxxxx Xxxxxxx
-------------------------------- -------------------------------
Authorized Signature Authorized Signature
XXX XXXXXXX, PRESIDENT/COO
-------------------------------- --------------------------------
Print Name and Title Print Name and Title
5-30-00 5-30-00
-------------------------------- --------------------------------
Date Date
21
EXHIBIT E
ROYALTY REPORT
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Monthly Macola License Fee Report
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Month of __________________ 2000
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Per License # of Users Software License
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Customer Name City/State Dealer Name License # # of Users Date Signed Module(s) Royalty Fee Per Module fees Due Macola
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22
EXHIBIT F
APPLICATION HOSTING AGREEMENT
BY AND BETWEEN
INSYNQ, INC. AND SAMPLE COMPANY
This Application Hosting Agreement ("Agreement") is made and entered into this
1st day of April, 2000, ("Effective Date") is by and between SAMPLE COMPANY Inc.
a Delaware corporation with its principal offices located at ________________
("SAMPLE COMPANY") and InsynQ, Inc., a Washington Corporation with its principal
offices located at 0000 Xxxxxxxx, Xxxxxx, XX 00000 ("InsynQ"). SAMPLE COMPANY
and InsynQ are sometimes referred to herein jointly as the "Parties" and
individually as a "Party".
1. Scope of Services
-----------------
1.1 InsynQ will provide SAMPLE COMPANY remote access to the computer hardware
servers controlled and owned by InsynQ (the "InsynQ Servers") on which
fully operational and stable versions of the following software
(collectively the "Software") is installed:
Software products listed here
1.2 InsynQ will provide SAMPLE COMPANY additional services as requested by
SAMPLE COMPANY on terms and conditions mutually agreed upon by the Parties;
1.3 InsynQ will provide SAMPLE COMPANY with certain hardware and software
support services, for the Software ("Support Services") as set forth in
Section 2 hereunder.
2. Access to InsynQ Servers.
2.1 InsynQ will provide SAMPLE COMPANY with the ability to remotely access and
use the Software that is hosted on InsynQ Servers, ("InsynQ Service") as of
the date that installation is completed (the "Completion Date") for up to
five (5) SAMPLE COMPANY authorized users ("Authorized Users"). As of the
Completion Date, the InsynQ Service will be available to SAMPLE COMPANY for
97% of all Scheduled Available Time as it relates solely to InsynQ's
network and host Internet access. InsynQ does not guarantee accessibility
as it relates to hardware and connectivity located at the customer's site
and outside of InsynQ's direct control.
2.2 "Scheduled Available Time" shall be defined as twenty-four hours-a-day,
seven days-a-week, excluding: (1) scheduled maintenance downtime of two (2)
hours per week, which shall only be schedule on Saturday and Sunday; (2)
maintenance downtime for specific critical Software issues. InsynQ shall
contact SAMPLE COMPANY at least 24 hours in advance of the need for such
downtime, to schedule a mutually agreeable time to perform such
maintenance; and (3) any downtime due to Software defects, or caused by
other forces beyond the immediate control of InsynQ.
2.3 InsynQ will track the Scheduled Available Time for each calendar month and
in the event that InsynQ Service is not available for two or more hours of
the 99.5% Scheduled Available Time during the Term of this Agreement and
any applicable Renewal Period, then InsynQ will issue a credit to SAMPLE
COMPANY in an amount equal to 50% of one day of InsynQ's subscription
service fee for each increment of two hours of such unavailable time in
that month.
2.4 InsynQ will provide SAMPLE COMPANY with its regular maintenance downtime
schedule seven days in advance.
2.5 Taxes. SAMPLE COMPANY shall be responsible for all sales taxes, use taxes
-----
and any other similar taxes and charges of any kind imposed by any federal,
state or local governmental entity on the transactions contemplated by this
Agreement, excluding only U.S. taxes based
23
solely upon InsynQ's income. When InsynQ has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
SAMPLE COMPANY unless SAMPLE COMPANY provides InsynQ with a valid tax
exemption certificate authorized by the appropriate taxing authority.
3. Support Services
3.1 Services. InsynQ will maintain a hosting facility where the InsynQ
--------
Servers and the Software are located. InsynQ will use commercially
reasonable efforts to provide performance analysis and tuning
services, hardware preventative maintenance, and regular back-up
services. With respect to the Software, InsynQ will be responsible for
installing and configuring the Software on the InsynQ Servers. InsynQ
will answer technical questions by Customer concerning application
functionality of the Software within the scope of this Schedule.
3.2 Updates: "Update" shall mean a release or version of the Software
-------
containing new features, functional enhancements, extensions, error
corrections or fixes, which are indicated by a change in the numeric
identifier for the Software in the digit either to the right or left
of the decimal. InsynQ will install into production Updates once they
have been certified by InsynQ as being production-worthy. InsynQ and
Customer will collaborate concerning the impact of Updates on
Customer's business processes. InsynQ will make a range of
implementation dates for Updates available to Customer, and Customer
agrees to implement within the InsynQ-specified timeframe.
3.3 Application Support.
-------------------
(a) During the term of this Agreement, InsynO will provide support
personnel that will be available during InsynO Business Days, and via
the Communication Methods defined below.
(b) InsynQ Business Days. Except for designated holidays and severity
"Urgent" and "High" events as described below, standard support hours
are Monday through Friday (excluding Holidays), 7:00 a.m. to 6:00 p.m.
Pacific time.
(c) Communication Methods. Customer can communicate with InsynQ's Service
team in any or all of the following ways. InsynQ will inform Customer
in writing of any changes to this information
-----------------------------------------------------------------------
Phone 0-000-000-0000 Email: xxxxxxx@xxxxxx.xxx
-----------------------------------------------------------------------
US Mail or 0000 Xxxxxxxx Xxxxx Fax: 000.000.0000
FedEx: Xxxxxx, XX 00000
-----------------------------------------------------------------------
(d) Application Issues. InsynQ will provide support concerning
implementation and use of the hosted Software. InsynQ will respond to
reported application issues according to the following protocols:
24
--------------------------------------------------------------------------------------------------------------------------------
Severity Definition Response Time Resolution Time
Level
--------------------------------------------------------------------------------------------------------------------------------
Urgent Inability to access any InsynQ will respond to Urgent priority calls Within four (4)
Software that affects more within fifteen (15) minutes of being contacted hours of contact
than one SAMPLE COMPANY user by a SAMPLE COMPANY client care representative from a SAMPLE COMPANY
or during implementation, a with a phone call from an agent or engineer client care
request for a change to the qualified to resolve the stated issue. representative
Software's technical
environment necessary to
SAMPLE COMPANY's
configuration of the Software
--------------------------------------------------------------------------------------------------------------------------------
High Inability of any single SAMPLE InsynQ will respond to High priority calls Within twelve (12)
COMPANY user to access any within thirty (30) minutes of being contacted hours of contact
Software by a SAMPLE COMPANY client care representative from a
with a phone call from an agent or engineer SAMPLE COMPANY
qualified to resolve the stated issue. client care
representative
--------------------------------------------------------------------------------------------------------------------------------
Medium The Software response time or InsynQ will respond to Medium priority calls Within twenty-four
accessibility is sub-optimal within two (2) hours of being contacted by a (24) hours of
resulting in slow response SAMPLE COMPANY client care representative with contact from a
times or restricted a phone call from an agent or engineer SAMPLE COMPANY
accessibility qualified to resolve the stated issue client care
representative
--------------------------------------------------------------------------------------------------------------------------------
Low A request from a SAMPLE InsynQ will respond to Low priority calls Within forty-eight
COMPANY client care within four (4) hours of being contacted by a (48) hours of
representative for an SAMPLE COMPANY client care representative with contact from a
enhancement or a change to the a phone call from an agent or engineer SAMPLE COMPANY
Software's technical qualified to resolve the stated issue client care
environment. representative
--------------------------------------------------------------------------------------------------------------------------------
Software Access.
4.1 Ownership. This license is not a sale and does not convey any rights of
---------
ownership in or to the Software. InsynQ is not granting SAMPLE COMPANY any
rights whatsoever in the Software source code. All right, title, and
interest in the Software and any updates, upgrades or modifications
thereof, or in any ideas, know-how, and programs developed by InsynQ or its
licensors during the course of this Agreement will remain the property of
InsynQ or its licensors. All right, title, and interest in SAMPLE COMPANY's
data will remain the property of SAMPLE COMPANY. Notwithstanding anything
in this Agreement to the contrary, SAMPLE COMPANY shall own all right,
title and interest in any derivative work of the Software developed by
25
SAMPLE COMPANY or its licensors and such derivative work will remain the
property of SAMPLE COMPANY.
4.2 Access. Subject to the terms and conditions of this Agreement, and for
------
the term of this Agreement, InsynQ grants SAMPLE COMPANY non-exclusive,
non-transferable rights to use and access the Software for SAMPLE COMPANY's
business purposes.
5. Security
InsynQ will provide the following Security:
(a) Application Security -- InsynQ will take all reasonable measures to
ensure that only SAMPLE COMPANY authorized users and authorized SAMPLE
COMPANY agents will be provided access to the Software;
(b) Physical Security -- InsynQ will act diligently to ensure that only
SAMPLE COMPANY authorized users and SAMPLE COMPANY authorized agents
are provided access to the Software;
(c) InsynQ recognizes that its ability to maintain the foregoing security
levels is a material inducement for SAMPLE COMPANY to enter into this
Agreement and any failure on the part of InsynQ to maintain said
security will be a material breach of this Agreement upon which SAMPLE
COMPANY may terminate this Agreement without prior notice to InsynQ.
6. Confidentiality
Each Party (a "Receiving Party") acknowledges that it and its employees or
agents may, in the course of performing the services or satisfying its
obligations hereunder, be exposed to or acquire information which is proprietary
to or confidential to the other Party (a "Disclosing Party") or its affiliated
companies or their clients. Any and all information of any form obtained by a
Receiving Party or its employees or agents in the performance of the services or
the satisfaction of such Party's obligations hereunder shall be deemed to be the
confidential and proprietary information of the Disclosing Party. The Receiving
Party agrees to hold such information in strict confidence and not to copy,
reproduce, sell, assign, license, market, transfer or otherwise dispose of, give
or disclose such information to third parties or to use such information for any
purposes whatsoever other than pursuant to the terms and conditions set forth in
this Agreement and to advise each of its employees and agents of their
obligations to keep such information confidential. All such confidential and
proprietary information described herein, in whatever form, is hereinafter
collectively referred to as "Confidential Information", provided that
Confidential Information shall exclude all information, which (a) is at the time
of disclosure, or thereafter becomes, a part of the public domain through no act
or omission of the other party, its employees or agents; or (b) was in the other
party's possession as shown by written records prior to the disclosure and had
not been obtained by such party either directly or indirectly from the
disclosing party; (c) is hereafter disclosed to the other party by a third party
who did not acquire the information directly or indirectly from the disclosing
party hereunder; (d) was independently developed by the other party without use
of the Confidential Information, as evidenced by written records; or (e) was
required by law to be disclosed, but only to the extent and for the purposes of
such required disclosure. The Receiving Party shall promptly advise to the
Disclosing Party immediately in the event the Receiving Party learns or has
reason to believe that any person who has had access to Confidential Information
has violated or intends to violate the terms of this Agreement and the Receiving
Party will at its expense cooperate with the Disclosing Party in seeking
injunctive or other equitable relief against any such person.
7. Term
26
This Agreement shall be effective on the Effective Date and shall continue in
full force and effect until superseded by a permanent hosting Agreement or for a
period not to exceed thirty (30) days whichever comes first. In the event that
the parties have not executed a permanent hosting Agreement prior to the
expiration of the foregoing thirty (30) day term they may, by mutual agreement
and in writing, extend this Agreement for a two additional periods of thirty
(30) days (each a "Renewal Term"). Any such Renewal Term will be governed by the
terms and conditions of this Agreement.
8. Infringement
InsynQ agrees to defend, indemnify and hold harmless Licensee from any loss,
liability and expense (including reasonable attorneys' fees) incurred by
Licensee as a result of any claim, demand or action against Licensee based on,
related to or arising out of any claim that the Intellectual Property provided
hereunder infringes any U.S. patent, copyright, trade secret, or similar
proprietary right of a third party. If such claim has occurred, or in InsynQ's
judgment is likely to occur, Licensee agrees to allow InsynQ, at InsynQ's option
and expense, (a) to procure the right for Licensee to continue copying and using
the Intellectual Property in accordance with this Agreement, or (b) to replace
or modify the Intellectual Property in a functionally equivalent manner so that
it becomes noninfringing. In the event that the above remedies are not
reasonably available, InsynQ shall refund to Licensee an amount equal to the
depreciated license fee paid by Licensee (calculated on a straight line basis
over a five-year life), and Licensee shall have the option to terminate this
Agreement upon thirty (30) days notice to InsynQ.
9. Survival
Notwithstanding anything herein to the contrary, the provisions of Section 5 of
this Agreement shall survive any termination of this Agreement and shall
continue to bind SAMPLE COMPANY and InsynQ for a period of three (3) years from
the Effective Date.
10. Assignment
This Agreement shall be binding upon the Parties' respective successors and
permitted assigns. Neither Party may assign this Agreement or any of its rights
or obligations hereunder without the prior written consent of the other Party,
which consent, shall not be unreasonably delayed or withheld, and any such
attempted assignment shall be void. Notwithstanding anything herein to the
contrary, either Party may assign this Agreement, or any of its rights or
obligations hereunder, upon written notice to the other Party, to a current or
future parent company, a subsidiary or any of its affiliated companies, without
the consent of such other Party and either Party may assign this Agreement to
any entity which shall assume all or substantially all of the business of such
Party to which the subject matter of this Agreement pertains or by assignment by
operation of law or merger without the prior consent of the other party. Any
sale of the majority of the capital stock, merger, consolidation or
reorganization of a Party shall be deemed an assignment for purposes of this
Agreement. Notwithstanding anything in this Section 9 to the contrary, if either
---------
party determines to sell its capital stock on a national stock exchange or over-
the-counter market, then the transfer of such publicly traded stock, shall not
constitute an assignment for the purposes of this Agreement.
11. Complete Agreement
This Agreement and each Schedule and Exhibit attached hereto and incorporated
herein shall constitute the entire understanding of the Parties, which
understanding supersedes and merges all prior proposals, understandings and all
other Agreements, oral and written, between the Parties relating to the subject
matter hereof and may not be modified except in a writing executed by both
Parties.
27
12. Waiver
No waiver of any violation or nonperformance of this Agreement in one instance
will be deemed to be a waiver of any violation or nonperformance in any other
instance. All waivers must be in writing signed by the waiving party.
13. Construction
Nothing contained in this Agreement will be deemed to be made for the benefit of
any third party. All headings and titles are for the convenience of the parties
only.
14. Force Majeure
Neither Party shall be liable to the other for any delay or failure to perform
due to causes beyond its reasonable control. Performance times shall be
considered extended for a period of time equivalent to the time lost because of
any such delay.
15. Severability
In the event that any one or more of the provisions of this Agreement is invalid
or otherwise unenforceable, the enforceability of the remaining provisions
thereof shall be unimpaired.
16. Disclosures and Announcements
Both the timing and the content of all disclosure to third parties and public
announcements concerning the transactions provided for in this Agreement by
either party shall be subject to the approval of the other in all essential
respects, except that neither Party's approval shall be required as to any
statements and other information which the other Party may be required to make
pursuant to any rule or regulation of the Securities and Exchange Commission,
the New York Stock Exchange, Inc. or the Nasdaq Stock Market, Inc., or otherwise
required by law.
17. Descriptive Headings
All paragraph headings, titles and subtitles contained herein are inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
18. Counterparts
This Agreement may be executed in one or more counterparts, all of which, taken
together, shall constitute one and the same Agreement.
19. Interpretation
The Parties have jointly participated in the negotiation and drafting of this
Agreement. In the event of an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumptions or burdens of proof shall arise favoring any Party by virtue
of the authorship of any of the provisions of this Agreement.
20. Governing Law; Jurisdiction
The parties make this Agreement under, and for construction in accordance with
and for governing by, the laws of the State of Arizona. Either party may bring
suit to enforce any provision of this Agreement or to obtain any remedy with
respect hereto in Maricopa County Superior Court or the
00
Xxxxxx Xxxxxx Xxxxxxxx Xxxxx for the District of Arizona. For this purpose both
parties hereby expressly and irrevocably consent to the jurisdiction of said
courts.
19. Binding Effect
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto, their successors and assigns.
20. Amendments
No change or amendment to this Agreement shall be valid unless in writing and
signed by all the Parties.
It is understood that this Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which when taken together shall
constitute one and the same document.
21. Limitation of Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 EACH PARTY'S
------------------------------------------------------------------------------
TOTAL LIABILITY TO THE OTHER FOR BREACH OF CONTRACT AND FOR ALL OTHER CLAIMS
----------------------------------------------------------------------------
(INCLUDING, WITHOUT LIMITATION, TORT CLAIMS) ARISING OUT OF OR RELATED TO THIS
------------------------------------------------------------------------------
AGREEMENT SHALL NOT EXCEED FIFTY-THOUSAND DOLLARS ($50,000.00).
-------------------------------------------------------------
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL
--------------------------------------------------------------------------------
OR PUNITIVE LOSS, SPECIAL OR EXEMPLARY DAMAGES OR EXPENSES (INCLUDING LOST
--------------------------------------------------------------------------
PROFITS AND SAVINGS) PURSUANT TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN
---------------------------------------------------------------------------
ADVISED OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR
--------------------------------------------------------------------------
ANTICIPATED PROFITS, OR LOST BUSINESS.
-------------------------------------
SAMPLE COMPANY Inc. InsynQ, Inc.
By: _____________________ By: _____________________
Title: __________________ Title: __________________
Date: ___________________ Date: ___________________
29
SCHEDULE A to EXHIBIT F
Schedule of Fees
InsynQ shall provide the following applications in a hosted environment for the
subscription fees outlined below:
Product Number of Users Monthly Subscription Fee
An additional one-time $19.00 fee will charged per use to set up each profile.
Additional 15MB of storage available for $15 and additional aliases set up for
$5.00 each
InsynQ shall invoice SAMPLE COMPANY monthly for services rendered in the
previous month. SAMPLE COMPANY agrees to provide InsynQ payment for six months
of subscription service fees in advance upon execution of this Agreement and
agrees that they will receive monthly invoices beginning in the seventh month of
service and monthly thereafter based upon the actual number subscribers
utilizing the service each month. SAMPLE COMPANY agrees to pay InsynQ for the
actual number of subscribers utilizing InsynQ's service each month and will
receive a supplemental invoice in the first six months when the number of user's
exceeds the initial agreed upon number of subscribers.
All invoices are due and payable in full within 30 days of date of invoice.
Hosting and access fees will begin to accrue on April 7, 2000, which is the
date the network was made available for SAMPLE COMPANY's use. Fees will not
accrue if SAMPLE COMPANY is unable to access the InsynQ servers solely because
of non-performance by InsynQ. Any invoice not paid within thirty (30) days of
the due date will be deemed late, and will accrue late charges as of the date
due. Late charges shall be at a rate of 1% per month, or the maximum rate
allowed under law, whichever is lower, from the date such payment was due until
the date paid.
30
EXHIBIT G
TERMS FOR SUBMISSION OF ORDERS FOR APPLICATION HOSTING SERVICES
The following process will be followed when either Macola or Macla Business
Partner submits and order for Application Hosting Services.
Macola Customer brought in by Macola Business Partner to InsynQ
---------------------------------------------------------------
Step 1: InsynQ checks and approves Macola Customers' Credit
Step 2: InsynQ provides Macola Customers with Application Hosting Agreement to
be signed
Step 3: InsynQ provides Macola Customers with Macola License Agreement to be
signed
Step 4 InsynQ communicates to Macola Business Partner on all documents being
accepted
Step 5: InsynQ Places Order with Macola
Step 6: Macola Ships a license registration to InsynQ and manuals to Macola End
User
Step 7: Macola communicates to Macola business Partner that Manuals have been
shipped and a license registration has been provided to InsynQ
Macola Customer Brought in by Macola Directly to InsynQ
-------------------------------------------------------
Step 1: InsynQ checks and approves Macola Customers' Credit
Step 2: InsynQ provides Macola Customers with Application Hosting Agreement to
be signed
Step 3: InsynQ provides Macola Customers with Macola License Agreement to be
signed
Step 4: InsynQ provides Macola Customers with Support Agreement to be signed
Step 5 InsynQ communicates to Macola on all documents being accepted
Step 6: InsynQ Places Order with Macola
Step 7: Macola Ships a license registration to InsynQ and manuals to Macola End
User
31
EXHIBIT H
MACOLA(R) SOFTWARE RESELLER OBJECT AND HOSTING AGREEMENT
Reseller # 73948 Date: May 19/th/, 2000
----- ----------------
Pursuant to the terms of a Master Licensing Agreement between the parties dated
May 19/th/, 2000 (the "Master Licensing Agreement"), Macola, Inc., an Ohio
corporation, hereinafter referred to as "Macola" hereby grants to InsynQ, Inc.,
a [x] Washington corporation, [ ] partnership, [ ] sole proprietorship with
offices located at 0000 Xxxxxxxx, Xxxxxx, XX 00000. Phone # 000-000-0000,
hereinafter alternately referred to as "Licensee" or "Reseller," a non-exclusive
non-transferable license to market and promote access and use of the Macola
Products (as defined in the Master Licensing Agreement and further defined
below) via Application Hosting Services (as defined in the Master Licensing
Agreement), and to host the Macola Products for access and use by Macola Users
(as defined in the Master Licensing Agreement) market, distribute and
sublicense, under the terms and conditions set forth below and in the Master
Licensing Agreement, certain of Macola's proprietary computer software items and
certain computer software proprietary to third parties which Macola has rights
to distribute, all as more fully identified in paragraph 1.3 below. Terms not
defined in this Agreement have the same meaning as in the Master Licensing
Agreement.
1. DEFINITIONS
1.17 The "Macola Products" are also referred to as the "Software" or the
"Licensed Software". The Software shall include all software, both Macola(R)
software and software proprietary to third parties, described on Macola's
current standard price list Exhibit B to the Master Licensing Agreement
("Price List") as issued by Macola from time to time. A software product
listed on thesuch Exhibit B Price List is hereinafter individually referred
to as a "Module." or a "Licensed Module".
1.18 "Certification" means satisfaction by Licensee of the requirements and
completion of the training established in Macola's Policies and Guidelines,
as described in paragraph 4.7 below, which are required for the marketing,
distribution, sublicensing, installation and support of a Module. Licensee
is "certified" as to a Module when all then current requirements for
Certification in Macola's Policies and Guidelines have been met.
1.19 The "Licensed Software" is comprised of those Modules for which Licensee
has achieved and maintains in force Certification. Modules included among
the Licensed Software are "Licensed Modules". If Licensee fails to maintain
Certification in force for any Licensed Module, such Module shall cease to
be a Licensed Module as of the date Licensee is no longer certified, unless
otherwise provided in the Policies and Guidelines.
The Licensed Software shall include:
d) all machine executable code delivered hereunder ("Object Code"); and
e) all information contained in any user documentation ("User's Manual(s)")
supplied; and
f) any subsequent corrections, enhancements or modifications to the Licensed
Modules in machine executable code format which Macola may elect to furnish
to Licensee during the term of this License.
Licensed Software which is proprietary to third parties is referred to as
"Third Party Software". Licensed Software which is proprietary to Macola,
including the Macola(R) software, is referred to as "Macola Software".
32
1.20 "Demonstration" or "Demo(s)" shall mean a non-warranted, "AS IS",
restricted use representation of the Licensed Software in machine
executable code only with limitations in printing, entry of a company name,
dates and on other functions as determined by Macola from time to time.
1.21 An "Eligible Computer System" shall be any computer system under the
custody and control of Reseller running a Macola supported operating
system. any one of the following:
c) any single user computer system running the Licensed Software under a
Macola supported operating system.
d) A multi-user system connecting up to five (5) computer workstations or
terminals concurrently using the Licensed Software; except that, should the
individual computer workstations or terminals be disconnected from the
multi-user system, and continue to run the Licensed Software in any form,
then each of these disconnected computers shall be considered to be a
single Eligible Computer System.
1.22 An "Object Pack" or "Package" shall consist of the Object Code and the
User's Manual, for one Licensed Module.
1.23 An "Object Use" means the use of one Object Pack for one Licensed
Module, and is defined as occurring when such Object Pack is first
registered.
1.24 A "LAN/USER Group" shall consist of each additional group of five (5)
computer workstations or terminals in addition to the multi-user system
defined in paragraph 1.5b, connected to an Eligible Computer System.
1.25 A "LAN/USER Group Use" means the use of one LAN/USER Group and is
defined as occurring when one such LAN/USER Group is first registered.
1.26 "Burst Pack" shall mean the sealed envelope or other package containing
the Object Code with a user license agreement printed on the face side or
otherwise referenced thereon which must be unsealed by the customer prior
to the installation and use of the Licensed Software.
1.27 "Registration" means copying a registration file supplied by Macola onto
an Eligible Computer System on which the Licensed Software has been
installed. The registration file includes encrypted information on the End
User's name and purchased Object Packs and LAN/USER Group Usesaccess and
use rights for Licensed Software Modules.
1.28 "Registered Software" shall mean a specific Object Pack instance of the
Licensed Software on a specific Eligible Computer System, or LAN/USER
Group, described in a registration file for which Registration has been
completed, which displays a specific End User's company name and address,
on a copyright and registration screen that displays upon initial accessing
of the Licensed Software, or as otherwise implemented by Macola for the
Application Hosting Environment.
1.29 "End User" means any entity which has accepted or signed, as required,
the applicable Macola-approved license agreement for the Licensed Module in
question a Macola User, as defined in the Master Licensing Agreement. and
to which such Licensed Module has been provided.
1.30 The terms "Module," "Licensed Module," "Registered Software," "Object
Code," "User Manual(s)," and "Object Pack(s)" as used herein shall refer to
the whole as well as to any portions thereof, and also to any copies made
of such materials.
1.31 "Consultant" means any entity that has entered into a Macola Qualified
Consultant Agreement.
33
1.32 "Support Subscription Service Agreement" (SSSA) shall mean the agreement
for Support Services provided to Licensee by Macola, which must be renewed
annually as more fully set forth in the SSSA.
1.33 `Master License' shall mean the MASTER LICENSING AGREEMENT dated May
---
19/th/, 2000, by and between Macola and InsynQ.
------------
6. PROMOTION, ORDERS, FEES AND PAYMENTS
2.7 Licensee agrees to use reasonable diligent efforts to actively promote the
distribution and license of use of the Licensed Software in an Application
Hosting Services environment with Licensee.
2.8 Each order placed by Licensee with respect to a prospective license of
Licensed Software for use in an Application Hosting Services environment
with Licensee shall be deemed to incorporate all of the terms and
conditions of this Agreement. Licensee may place orders only for Licensed
Modules. ALL ORDERS ARE EXPRESSLY LIMITED TO THE TERMS HEREOF AND ABSENT AN
EXPRESS WRITTEN AGREEMENT BY MACOLA AND LICENSEE ANY ADDITIONAL OR
DIFFERENT TERMS ARE OBJECTED TO WITHOUT FURTHER NOTIFICATION. Each order
shall be subject to acceptance by Macola, in its sole discretion, shall be
made in the manner and shall comply with all requirements of this Agreement
and any requirements set forth in the Policies and Guidelines in effect
from time to time.
2.9 During the term of this Agreement, Licensee may refer to itself as a
"Macola Reseller" solely in connection with Software. No rights are granted
to Licensee to use trademarks and trade names of Macola, except the limited
permission for Licensee to use the trademarks "MACOLA(R)" and such other
Macola Trademarks as Macola from time to time authorize Licensee to use
hereunder, solely to identify Macola's products marketed under this
Agreement. Licensee shall provide to Macola for prior review and written
approval all promotional, advertising and other materials and activities
using or displaying the trademarks or trade names of Macola. Licensee
agrees to change or correct, at Licensee's expense, any such material which
Macola in its sole judgment, determines to be inaccurate, objectionable,
misleading or a misuse of its trademarks or trade names. Permission granted
relevant to the trademarks of Macola shall terminate with the expiration or
termination of this Agreement. Upon such expiration or termination,
Licensee shall immediately cease referring to itself as a "Macola
Reseller," and shall immediately cease using the marks "MACOLA" and
"PROGRESSION SERIES" and any other trademarks or trade names of Macola.
2.10 All fees, charges, uses and other sums set forth herein are expressed in
and shall be paid in United States Dollars, unless otherwise agreed by
Macola, and are non-refundable.
2.11 Licensee shall pay Macola a fees as specified in the Master Licensing
Agreement on Macola's then current Price List for all products ordered
hereunder which becomes due and payable under the terms and conditions as
are specified on the Price List, which are subject to change by Macola from
time to time without notice. Overdue payments may, at the option of Macola,
be charged interest at the rate of 1.5% per month, or the maximum permitted
by applicable law, whichever is less. The amounts retained by Licensee
under the Master Licensing Agreement from its customers with respect to its
sales of Application Hosting Services to Macola Customers are the sole
monetary consideration hereunder.
2.12 In addition to any other sums payable hereunder, Licensee shall pay to or
reimburse Macola upon demand for amounts equal to any taxes, however
designated, arising from or based upon the fees, this Agreement, the
License, or the Licensed Software and any associated media and Manuals
furnished for their use (but not including any taxes based on Macola's net
income) and related interest and penalties, if any, imposed by governmental
authority at any time. If, under applicable law, Licensee is required to
withhold any tax on
34
any payments due Macola, then the amount of the payment will be
automatically increased to totally offset such tax, so that the amount
actually remitted to Macola, net of all taxes, equals the amount invoiced
or otherwise due. Licensee will promptly furnish Macola with the official
receipt of payment of these taxes to the appropriate taxing authority.
7. TITLE, COPYRIGHT, PROPRIETARY RIGHTS, AND TRADE SECRETS
3.5 Licensee understands and agrees that the Software embodies substantial
creative efforts. Any portions thereof marked as trade secrets contain
confidential information, ideas and expressions. Any and all copyright,
trade secrets, patent, and other intellectual and proprietary rights in the
Software are and remain the valuable property of Macola or its licensors.
3.6 Aspects of the Software that are Macola trade secrets without the necessity
of separate marking include but are not limited to the specific design and
structure of such tasks as interactive data entry, file handling, report
generation and the like.
3.7 Licensee shall not alter or remove any Macola copyright, proprietary
rights, and/or trade secrets notices, and shall not do or fail to do any
act or thing which will impair any of Macola's or its licensors'
proprietary or other rights in and to the Software and any trademarks,
service marks and trade names of Macola.
3.8 Licensee shall include reasonable facsimiles of any Macola or third party
copyright, proprietary, and/or trade secrets notices on each and every
copy it makes of the Licensed Software in the same manner as provided on
the materials comprising the Licensed Software received from Macola.
8. SCOPE OF LICENSE
8.1 Licensee may, on a non-exclusive, non-transferable basis
e) use the Licensed Software as an End User for its own internal data
processing purposes only, and subject to the applicable Macola End User
signed or unsigned license agreement form;
f) sublicense the Licensed Software, consistent with Section 6, where a
standard form of Sublicense Agreement provided by Macola is required to be
used; [not sure if this applies]
g) use the Licensed Software as a data processing professional which installs
Licensed Modules on Licensee's systems and registers Object Packs and
LAN/USER Groups the Licensed Modules to End Users for Object Use and
LAN/USER Group Use in an Application Hosting Services environment operated
by Licensee only, and only for the purpose of installing and registering
such Object Packs and LAN/USER Groups Licensed Modules on its systems;
h) as a distributor of Macola which distributes the Licensed Software to other
licensees or Consultants of Macola (as designated by Macola in writing) to
install and register Object Packs and LAN/USER Groups to End Users for
Object Use and LAN/USER Group Use; according to all the terms and
conditions set forth in this Agreement. [not sure about this]
i) As a Application Service Provider (ASP) providing software Application
Hosting Services and related services for to the Licensed Software under
the terms and conditions as specified in the Master Licenseing Agreement,
but only to Macola Users identified by Macola to Licensee and for which
Registration has occurred.
4.lO Licensee is strictly prohibited from using the Licensed Software on any
computer system which is not an Eligible Computer System, as defined in
paragraph 1.52 above.
4.1l Each Package or LAN/USER Group used by Licensee shall count as one Object
Use or LAN/USER Group Use for each Eligible computer system on which it is
used.
4.l2 Licensee may not copy the Licensed Software except as specified in
paragraph 4.65. All Object Packs, LAN/USER Groups, copies of the Licensed
Software and registration files required to exercise its rights under
paragraphs 4.1 and 4.2 above must be obtained from Macola.
35
4.l3 As long as the MASTER LICENSE Master Licensing Agreement remains in effect,
Licensee will enjoy all rights under a must maintain an active Support
Subscription Service Agreement (SSSA) with Macola. as an obligation to this
Agreement. Unless otherwise set forth in the Policies and Guidelines, a
current valid SSSA covering Licensee is required to be in force in order
for Licensee to be certified as to any Modules. The SSSA also defines
levels of services provided to Licensee by Macola, all as more fully set
forth therein.
4.14 Licensee may make and maintain as many as reasonably needed of up to three
(3) back-up copies of the Licensed Software provided they are used for
back-up purposes, and Licensee maintains possession of the back-up copies.
4.15 As a condition of its continued enjoyment of rights hereunder, Licensee
agrees to comply at all times with any Macola policies and guidelines
applicable to ASP's, resellers and distributors as may be in effect during
the term of this Agreement ("Policies and Guidelines"), including but not
limited to any Partner Programs Requirements or annual performance
requirements. Macola will notify Licensee of the Policies and Guidelines,
if any, in effect as of the Effective Date, and will give Licensee notice
of the adoption of and changes in such guidelines, policies and
requirements as they may occur from time to time hereafter.
4.16 Regardless of any disclosure made by Licensee to Macola of an ultimate
destination of the Licensed Software, Licensee acknowledges that the
Licensed Software and all related technical information, documents and
materials are subject to export controls under the U.S. Export
Administration Regulations. Licensee will (i) comply strictly with all
legal requirements established under these controls, (ii) cooperate fully
with Macola in any official or unofficial audit or inspection that relates
to these controls and (iii) not export, reexport, divert, transfer or
disclose, directly or indirectly, any Software or Module or related
technical information, document or material or direct products to any of
the countries that are restricted by the U.S. Commerce Department,
executive order or otherwise or to any national or resident thereof unless
Licensee has obtained the prior written authorization of Macola and the
U.S. Commerce Department.
4.l7 All rights, without limitation, are reserved to Macola to cease publishing,
licensing or distributing any or all Modules or to alter, change the
design, or development of said products.
9. UPDATES AND SUPPORT TO THE LICENSED SOFTWARE
5.3 Except as otherwise provided in the Policies and Guidelines, Macola shall
provide Licensee with support and updates or upgrades to the Licensed
Software which may become available from Macola under the terms and
conditions of Macola's SSSA.
5.4 Licensee is responsible for providing support, updates and upgrades to its
End Users. Macola reserves the right, however, at its election to offer
direct support to End Users, and to directly provide updates and upgrades
to End Users.
9. LICENSING, INSTALLATION AND REGISTRATION RIGHT
9.1 Consent to a Macola User to The access and use the Licensed Software in an
Application Hosting Environment operated by Licensee may will be made
available as determined by Macola under the terms of to Licensee to market
under (a) a standard form of Sublicense License Agreement provided by
Macola to be signed by the customer and Macola. or (b) a standard form of
"Burst Pack" License Agreement provided by Macola that need not be signed.
Macola will notify Licensee in writing of the Licensed Modules which may be
marketed using "Burst Pack" License Agreements, and the circumstances under
which such non-signed license agreements may be used. Except as so
notified, a signed Sublicense Agreement is required in all instances.
36
9.2 Licensee agrees that where a signed Sublicense Agreement is required it
will provide and distribute the Licensed Software to customers only
pursuant to the terms and provisions of Macola's standard form of
Sublicense Agreement in effect from time to time during the term of this
Agreement. Where a "Burst Pack" unsigned License Agreement is permitted,
Licensee agrees that it will (i) notify the customer at the time of order
that the customer's acceptance of a license agreement is required as a
condition of use of the Licensed Software; (ii) ensure that an unopened
"Burst Pack" containing the applicable Licensed Software is delivered to
the customer; (iii) ensure that the customer understands the meaning of the
applicable license and licensing in general prior to any installation of
the Licensed Software by Licensee or a Consultant; and (iv) accept return
of an unopened "Burst Pack" package from customers who do not wish to be
bound by the license agreement and in such cases return all moneys paid by
such customer for the applicable Licensed Software.
9.3 Licensee shall obtain Macola's prior written approval of any proposed
amendment or change to the Sublicense Agreement form. Licensee may not
change the "Burst Pack" unsigned License Agreement form. No delivery of any
copies of Licensed Software requiring a signed license agreement shall be
made or permitted by Licensee until Licensee has first obtained the
customer's assent to and signature on a Sublicense Agreement covering the
Licensed Software in question. Licensee shall promptly deliver a copy of
all such executed Sublicense Agreements to Macola. All Sublicense
Agreements require Macola's written approval to become effective.
9.4 Except as may be expressly provided herein or in any Macola end-user
license agreement executed by Licensee. Licensee agrees not to duplicate,
manufacture, reverse engineer, decompile or copy Software. Except as
provided herein, Licensee shall not, and shall require that its End Users
do not, copy or modify any Software outside of permissible copies as
outlined in an approved Sublicense Macola License or Sublicense Agreement
or "Burst Pack" License Agreement, where permitted. Licensee will enforce
the terms of Sublicense Agreements and will cooperate fully with Macola
should Macola elect to exercise its rights under such Sublicense Agreements
or otherwise.
9.5 Licensee shall provide Object Packs contained in unopened Burst Packs to
Consultants for distribution to customers, provided that prior to any
Consultant's receipt of any Object Packs, the Consultant shall enter into a
Qualified Consultant Agreement with Macola and that Licensee instructs the
Consultant on items (ii) to (iv) in paragraph 6.2 above and obtains the
Consultant's agreement to comply with such provisions.
9.6 Licensee is strictly prohibited from transferring the Object Packs for
useing the Licensed Software on any computer system which is not an
Eligible Computer System.
9.7 Each Object Pack or LAN/USER Group Registered by Licensee or a Consultant
shall count as one Object Use or LAN/USER Group Use for each computer
system on which it is used as defined in Section 1.5.
9.8 In the event the End User wishes to use one or more Object Packs or
LAN/USER Groups on more than one Eligible Computer System, individual
Object Packs or LAN/USER Groups must be purchased and Registered for each
such Eligible Computer System, and each Object Pack or LAN/USER Group used
on each Eligible Computer System shall count as one Object Use or LAN/USER
Group Use.
9.9 Unless Macola has entered into a direct support agreement with the End
User, Licensee is responsible for the support of End Users to whom it
distributed the Licensed Software. Macola's support of Licensee in
connection with any End Users which do not have a direct support
relationship with Macola shall be provided solely under the terms and
conditions of the Macola SSSA.
9.10 Demo's and User's Manuals may be purchased from Macola to be provided to
prospective customers subject to the Macola Policies and Guidelines.
37
10. PROGRAMMING LANGUAGE, OPERATION SYSTEM, EQUIPMENT CONFIGURATION AND
PREPARATORY PROCEDURES
7.1 Licensee understands and agrees that:
e) in order for the Licensed Software to be functional, a correct copy of the
specific operating system and correct system manager from Macola are
required; and
f) the Licensed Software requires a computer hardware system with an adequate
amount of memory available for operation of the Licensed Software after the
operating system and any necessary programs have been loaded into memory;
and
g) the Licensed Software requires sufficient mass storage, and a compatible
monitor and printer.
h) that such system manager, memory and mass storage requirements may change
depending upon changes to factors which may be out of the control of
Macola.
11. WARRANTIES AND LIMITATION OF LIABILITY
11.1 Macola warrants that it has full power and authority to enter into
this Agreement and to grant to Licensee the rights herein granted.
11.2 Licensee warrants that it has full power and authority to enter into
this Agreement and that it has not entered into any contract or commitment
which shall interfere with the performance of its obligations hereunder.
11.3 Except for the warranties set forth in paragraph 8.1 above, Macola
makes no warranty to Licensee concerning the Software, Licensed Software or
otherwise. Any such Macola warranties are made directly to the End User and
shall only be as provided in a Macola-approved License or Sublicense
Agreement or "Burst Pack" unsigned License Agreement. LICENSEE UNDERSTANDS
AND AGREES THAT THE LICENSED SOFTWARE IS PROVIDED TO IT HEREUNDER STRICTLY
ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY STATED IN PARAGRAPH 8.1 ABOVE,
MACOLA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR
OTHERWISE. MACOLA DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
11.4 LICENSEE SHALL MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE
QUALITY, PERFORMANCE OR OTHER CHARACTERISTICS OF THE SOFTWARE OR LICENSED
SOFTWARE OTHER THAN THOSE WHICH ARE CONSISTENT IN ALL RESPECTS WITH, AND DO
NOT EXPAND THE SCOPE OF, THE WARRANTIES MADE BY MACOLA DIRECTLY TO END
USERS IN THE STANDARD MACOLA-APPROVED LICENSE OR SUBLICENSE FORM OR "BURST
PACK" LICENSE AGREEMENT FORM OR AS OTHERWISE APPROVED BY MACOLA IN A
WRITING ADDRESSED TO LICENSEE WHICH EXPRESSLY REFERS TO THIS PARAGRAPH 8.4.
11.5 UNDER NO CIRCUMSTANCES WILL MACOLA OR ITS DIRECT AND INDIRECT
SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR
INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE,
BASED ON CLAIMS OF LICENSEE OR ITS DEALERS, END USERS OR CUSTOMERS
(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF
MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA,
STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF
BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE,
38
STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE
LIABILITY WHICH MACOLA AND ITS DIRECT AND INDIRECT SUPPLIERS MAY INCUR IN
ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO MACOLA BY
LICENSEE FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. Both
parties acknowledge that the foregoing limitations on liabilities and the
disclaimer of warranties set forth in paragraph 8.3 represent a mutually
agreed upon allocation of risk and the consideration provided in this
Agreement has been calculated to reflect such allocation of risk.
9. CONFIDENTIALITY
9.6 Disclosure of and access to the portions, if any, of the Software marked as
confidential or as a trade secret ("Confidential Software") shall be
permitted to Licensee's employees on a need-to-know basis provided that
Licensee ensures that all such parties are prohibited from any unauthorized
use or copying of any such Confidential Software.
9.7 Licensee shall take any and all reasonable actions necessary or desirable
to ensure continued confidentiality and protection of any Confidential
Software as required hereunder, and to prevent unauthorized access thereto
or use thereof by any entity.
9.8 Licensee shall notify Macola promptly and in writing of the existence of
and circumstances surrounding any unauthorized knowledge, possession, or
use of the Software by any entity.
9.9 Macola is hereby authorized to make reasonable inquiries concerning
Licensee's compliance with paragraphs 9.1 through 9.3 above.
9.10 Since unauthorized use or transfer of the Software may diminish
substantially the value to Macola of the copyright, proprietary rights
and/or trade secrets interests that are subject of this Licensee, if
Licensee breaches any of its obligations with respect to limited use or
confidentiality of the Software, Macola shall be entitled to equitable
relief to protect its interest therein, including, but not limited to
injunctive relief as well as money damages.
10 TERMINATION
10.7 This Agreement shall be in effect from the date of the Master Licensing
Agreement this Agreement is first accepted by Macola executed by the
parties (the "Effective Date") and shall be valid until terminated as
provided below, or until termination of the Master License, a point in time
twenty (20) years hence, whichever comes first.
10.8 Licensee may terminate this Agreement at any time by written notice
thereof to Macola.
10.9 Macola may terminate this Agreement, effective upon written notice thereof
to Licensee in the event that:
g) Licensee fails to observe any of its obligations under this Agreement with
respect to registering End Users; or
h) Licensee neglects or fails to perform or observe any other material term or
obligation set forth in this Agreement; or
i) Licensee neglects or fails to perform or observe any material provision of
the Macola Policies and Guidelines; or
j) Licensee fails to achieve 100% of its applicable annual performance level
quota established by Macola consistent with the Macola Policies and
Guidelines and provided to Licensee in advance of the measurement period;
or
k) Licensee becomes insolvent or voluntarily bankrupt, or if an involuntary
petition in bankruptcy is not dismissed within ninety (90) calendar days of
filing, or if a receiver, assigned or other liquidating officer if
appointed for all or substantially all of the business of Licensee or if
Licensee makes an assignment for the benefit of creditors; or
39
1) If a outstanding balance for moneys due with Macola exists for any period
of more than 120 days.
10.10 Upon termination of this License for any reason whatsoever, then:
c) Licensee shall immediately discontinue all marketing, distribution, use and
installation of the Licensed Software; and
d) within ten (10) calendar days of termination, Licensee shall certify in
writing to Macola that Licensee has returned all copies of the Software in
its possession or control, including any parts thereof which have been
modified, merged or included with other software.
10.11 Notwithstanding anything to the contrary in this Agreement, expiration
or termination of this Agreement, however occurring, shall neither relieve
Licensee of any accrued obligations to pay money to Macola nor entitle
Licensee to any refund of amounts paid hereunder.
10.12 The provisions of paragraphs 2.3, 2.6, 6.4 and Sections 3, 8, 9, 10
and 11 hereof survive any termination of this Agreement.
11 GENERAL
11.12 Licensee may not assign or transfer (by operation of law or otherwise)
all or any part of its rights or obligations under this Agreement without
Macola's prior written consent other than as permitted under the Master
Licensing Agreement. Further, any change in control of Licensee, as defined
in 17 CFR (S)230.405 (or any successor provision), shall be deemed an
attempt by Licensee to assign or transfer this Agreement. Macola may assign
this Agreement by notice to Licensee.
11.13 Licensee may not assign, delegate, sub-contract or otherwise transfer
this Agreement or any of its rights or obligations without Macola's prior
approval. The rights granted by Macola to Licensee are personal to
Licensee, and Licensee will not appoint any independent agent,
representative, commissionaire, Licensee, reseller or other third person to
promote or market the Licensed Software. Any attempt to do any of the
foregoing without Macola's approval will be void.
11.14 In no event shall Licensee'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 Licensee under bankruptcy, insolvency, or reorganization
proceedings.
11.15 Nothing contained in this Agreement shall be construed as creating a
joint venture, partnership, or employment relationship between Macola and
Licensee, or as authorizing Licensee to act as Macola's agent or
representative.
11.16 All notices required to be given under this Agreement shall be given
in writing and shall be deemed to have been given when (i) delivered by
hand, (ii) mailed by prepaid registered or certified mail, return receipt
requested, (iii) sent by facsimile device, with a copy sent at the same
time by registered or certified mail, or (iv) sent by commercial courier
with written verification of the receipt to each party at its addresses set
forth herein or at such other address as either party may designate to the
other by notice as required hereby.
11.17 If any party is required to engage in any proceedings, legal or
otherwise, to enforce its rights under this Agreement, the prevailing party
shall be entitled to recover from the party(ies) in default, in addition to
any other sums due, the reasonable attorney fees. costs and necessary
disbursements involved in said proceedings.
11.18 THIS AGREEMENT AND ALL ORDERS HEREUNDER SHALL BE DEEMED TO HAVE BEEN
EXECUTED AND PERFORMED IN AND SHALL BE GOVERNED BY, CONSTRUED, INTERPRETED,
AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LOCAL LAWS
OF THE STATE OF OHIO. MACOLA AND LICENSEE HEREBY CONSENT AND AGREE THAT
JURISDICTION AND
40
VENUE FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER OR RELATED TO THIS
AGREEMENT OR ANY ORDER SHALL BE PROPERLY AND EXCLUSIVELY IN THE STATE OR
FEDERAL COURTS FOR XXXXXX COUNTY, OHIO, AND EXPRESSLY WAIVE ANY AND ALL
RIGHTS WHICH THEY MAY HAVE OR WHICH MAY HEREAFTER ARISE TO CONTEST THE
PROPRIETY OF SUCH CHOICE OF JURISDICTION AND VENUE.
11.19 Should any of the provisions of this Agreement be found to be invalid
by any court of competent jurisdiction, the remainder of this Agreement
shall nonetheless remain in full force and effect.
11.20 No modification, addition to or waiver of any rights, obligation or
default shall be effective unless in writing and signed by the party
against whom such is sought to be enforced. One or more waivers of any
rights, obligation or default shall not be construed as a waiver of any
subsequent rights, obligation or default.
11.21 Licensee will indemnify Macola against any damage, loss, liability or
expense (including lawyers' fees) that Macola may incur (i) with respect to
any negligent act or omission by, or willful misconduct of, Licensee's
employees or agents or (ii) as a result of (a) any modification or
amendment of the prescribed terms of an End User license agreement that
Macola did not specifically approve, (b) any warranty, condition,
representation, indemnity or guarantee granted by Licensee or provided by
law in addition to or in lieu of the warranties expressly granted by Macola
to the End User in Macola's Sublicense Agreement or "Burst Pack" License
Agreement, (a) any omission or inaccuracy in Licensee's advertisements and
promotional materials that relate to the Software, or (d) any modification
of or addition to the Software not provided or approved by Macola. This
paragraph will not be construed to limit or exclude any other claims or
remedies which Macola may assert under this Agreement or by law.
11.22 Once this Agreement is executed, all previous agreements between the
parties shall be inadmissible to explain, modify, or contradict this
Agreement. This Agreement replaces and supersedes all prior agreements
between the parties in respect of the marketing, distribution,
installation, use, and modification and sublicensing of the Software,
including but not limited to all Macola Software in both source code and
object code forms. This Agreement is part of the Master Licensing
Agreement.
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LICENSEE ACKNOWLEDGES THAT IT HAS READ ALL PAGES OF THIS AGREEMENT, UNDERSTANDS
IT AND AGREES TO BE BOUND BY ITS TERMS AND FURTHER AGREES THAT IT IS THE
COMPLETE AND EXCLUSIVE STATEMENTS OF THE AGREEMENT BETWEEN THE PARTIES, AND THAT
IT SUPERSEDES ALL PROPOSALS, ORAL, OR WRITTEN AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN WITNESS WHEREOF, Licensee and Macola have caused this Agreement to be
executed by their duly authorized and empowered officers or representatives as
of the dates set forth below.
ACCEPTED BY:
INSYNQ, INC. MACOLA, INC
Print Licensee Full Legal Name
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxx
---------------------------------- ------------------------------
Authorized Signature Authorized Signature
Xxxxxx X. Xxxxxxx, President & COO Xxxx X. Xxxxxx
---------------------------------- ------------------------------
Print Name and Title Print Name and Title
5/19/00 CFO 2/19/00
---------------------------------- ------------------------------
Date Date
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