Exhibit 10.34
NOVELL(R) CONFIDENTIAL
Execution Original
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NOVELL INTERNET COMMERCIAL SERVICE PROVIDER (ICSP) AGREEMENT
This Agreement is entered into upon the Effective Date by and between Novell,
Inc. ("Novell"), with offices at 0000 X. Xxxxxxxxxx Xxx, Xxxx, Xxxx 00000, and
the company set forth below ("Company").
Company: Insynq, Inc.
Address: 0000 Xxxxxxxx Xxxxx, Xxxxxx, XX 00000
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Contract Managers
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Novell Contract Manager Company Contract Manager
Name: Xxx Xxxxxx Name: Art Xxxx
Phone: 000 000 0000 Fax: 000 000 0000 Phone: 000 000 0000 Fax: 000 000 0000
Email: Xxx.xxxxxx@xxxxxx.xxx Email: Xxxx@xxxxxx.xxx
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Financial Contacts
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Novell Financial Manager Company Financial Manager
Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Phone: 000 000 0000 Fax: 000 000 0000 Phone: 000 000 0000 Fax: 000 000 0000
Email: Xxxxxxx@xxxxxx.xxx Email: Xxxxxxx@xxxxxx.xxx
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(Contract Managers and Financial Contacts may be changed upon written notice)
1. GENERAL DESCRIPTION. Company intends to use certain Novell Software to
provide software usage services, including the leasing of third party
applications, to its Customers. The Novell Software will allow Customers to
have use of the third party applications program by connecting to Company's
servers where the applications programs reside. Except for product
components that are necessary to enable Company to perform the Services for
the Customer, at no time will Company download or allow any Novell Software
to be downloaded onto Customers' workstations or local servers. Company
will pay Novell monthly per-user fees (based on the highest count of
subscribers during the month), flat fees, or per transaction fees for the
Novell Software as provided herein and the ICSP Price List.
2. DEFINITIONS.
2.1 Confidential Information means the pricing and specific terms and
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conditions of this Agreement,
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amendments or supplements thereto, any collateral documents or
materials provided in connection with this Agreement, and any other
materials that the disclosing party designates as confidential in
accordance with the terms of this Agreement. "Confidential
Information" does not include information that (i) is already known
to the receiving party at the time it is disclosed and has not been
obtained wrongfully, (ii) becomes publicly known without fault of
the receiving party, (iii) is independently developed by the
receiving party, (iv) is approved for release in writing by the
disclosing party, or (v) is disclosed without restriction by the
disclosing party to a third party.
2.2 Customer means an end-user entity for which Company will perform
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the Services.
2.3 Effective Date means the date the Agreement is executed by an
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authorized representative of Novell.
2.4 End User License Agreement means the end user agreement that
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accompanies the Novell Software.
2.5 Internal Use means use for the Customer's internal business on
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computers owned or operated by Customer or Company.
2.6 Master Media means master diskettes, master CD-ROMS, or other forms
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of media provided by Novell which media shall contain a serial
number that is unique to the Company.
2.7 Mailbox means an account for the storage of electronic messages,
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regardless of whether such account is attached to a network and/or
remote.
2.8 Novell Software(s) means the software products that are identified
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in Exhibit A that are licensed by Novell to Company pursuant to this
Agreement, and including all Upgrades thereto. Unless otherwise
specified in the ICSP Price List, Novell Software shall not include
any version of the Novell Software prior to the most current version
of such Novell Software.
2.9 Payments means the Minimum Royalty, Product Royalties, and other
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payments as such terms are defined in Section 13.
2.10 ICSP Price List means Novell's monthly publication listing the
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Novell Software available to Company and the associated Product
Royalties.
2.11 Royalty Report Format means the format for reporting royalties as
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attached as Exhibit B hereto which may be revised by Novell in
accordance with Section 13.5.
2.12 Services means the Internet hosting services including Internet
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access, email, and other Internet-related services provided by
Company to its Customers using Novell Software pursuant to the terms
and conditions of this Agreement.
2.13 Term means the term of this Agreement as specified in Section 15.1.
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2.14 Territory means worldwide.
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2.15 Upgrades means any new version of a Novell Software which bears the
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same product name, including version changes evidenced by a number
change immediately to either the right or left of the decimal (For
example GroupWise 4.0 to 5.0 or 5.1 to 5.2). If a question arises as
to whether a product offering is an Upgrade or a new product,
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Novell's opinion will prevail, provided that Novell treats the
product offering the same for its end user customers generally.
2.16 User(s) means any person or entity who subscribes to or uses the
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Services of Company. Company will ensure that each User is assigned
a User ID or user account number. Except for Company, User does not
include an entity which resells, sells, licenses, rents, transfers,
or leases the Novell Software to other parties or that otherwise
derives revenue from the Novell Software.
3. MASTER MEDIA. Novell will provide Company with one set of Master Media
for applicable Novell Software. Novell may update the Master Media and ship
the updated Master Media to Company from time to time. The Master Media
contains a serial number that has been registered by Novell to Company.
Novell may identify portions of the Novell Software that are to be
downloaded by Company electronically from a web site, in which case the
version downloaded shall be deemed Master Media. Company agrees to
faithfully and accurately reproduce any and all ID banners, serial numbers,
trademark, trade name, copyright, and other notices contained in the Novell
Software and to use the Master Media in accordance with serialization
procedures established by Novell and in effect from time to time. Company
covenants that it will not duplicate the Master Media nor will it
distribute, sell, give, lend, lease, or otherwise transfer the Master Media
to any Customer or other party, and Company covenants that it will not make
unauthorized copies or allow any other party to make unauthorized copies.
Violation of the provisions of this Section will be deemed to be a material
breach of this Agreement entitling Novell to terminate this Agreement under
Section 15.3. Company agrees to be responsible for and indemnify Novell
against any unauthorized use of the Novell Software by any of its
Customers.
4. LICENSE GRANT. Subject to the terms and conditions of this Agreement and
conditional upon Company making the applicable Payments, Novell makes
available to Company a non-exclusive, non-transferable, non-perpetual,
limited license only during the Term and only in the Territory, to make
copies of the Novell Software from Master Media and to use and distribute
such copies of the Novell Software internally within Company solely for the
purposes of implementing and deploying the Service to Customers but only as
expressly permitted herein. Any other use by Company (including Company's
internal business systems) of Novell Software must be by a separate license
agreement. Company is granted no express or implied right to modify or
alter the Novell Software in any way. Novell Software shall be used only to
allow the Customer to access the functionality of the Company's network via
an Internet browser software or Company client software.
5. LICENSE RESTRICTIONS. Company agrees to abide by the terms and conditions
of any End User License Agreement (XXXX) accompanying the Novell Software
and shall not delete, modify, or amend the terms thereof. Upgrades may be
subject to additional terms that add to or modify the terms of the
Services, licenses and restrictions. In addition, each Novell Software will
be subject to any license rights and restrictions accompanying the Novell
Software. Company agrees to exercise commercially reasonable efforts to
ensure that each Customer using the software license through Company
understands, and agrees to be bound by, the applicable Novell End User
License Agreement. In the event of any conflict between the license rights
and restrictions in this Agreement and the license rights and restrictions
accompanying the Novell Software, this Agreement shall supercede, as
between Novell and Company, except in the event that the Novell Software
(i) is accompanied by a license agreement where Novell is not the licensor,
or (ii) is a pre-release product (e.g.
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early access release or beta), in which case all of the terms and
conditions accompanying the Novell Software shall supercede the
terms and conditions of this Agreement. In addition, Novell Software
may include a component or product of a third party that is subject
to additional restrictions as specified by Novell to Company. All
rights not specifically granted in this Agreement are reserved by
Novell.
6. SERVICES.
6.1 No Customer Access to Novell Software. Company may perform the
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Services by placing and using the Novell Software on its own
servers. Under no conditions may Customer, its employees or
contractors have physical or administrative access to the Novell
Software, nor to the server on which the Novell Software resides.
Violation of the provisions of this Section will be deemed to be a
material breach of this Agreement entitling Novell to terminate this
Agreement under Section 15.3.
6.2 Alternative Client Interface. The Customer interface/client must
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not violate any intellectual property rights of Novell or its
licensors, and no license is granted to Company under this Agreement
with respect to development or use of any Customer interface/client.
7. SUPPORT. Company shall be responsible for providing all support to
Customers and shall instruct Customers how to obtain support from Company.
Neither Customer nor Company is entitled to receive technical or other
support from Novell under the terms of this Agreement. If Company desires
to receive technical support from Novell, Company may purchase support from
Novell pursuant to a separate agreement and in accordance with Novell's
then current support offerings.
8. UPGRADES. During the term hereof, Novell may release Upgrades to the Novell
Software Company licenses hereunder in which case Novell may make available
to Company a license to use the Upgrade subject to the provisions in the
applicable license terms.
9. ICSP PRICE LIST. The ICSP Price List shall contain all Novell Software
available for use in support of the Services and their associated prices.
Novell reserves the right to add or withdraw products from the ICSP Price
List at any time. Novell also reserves the right to increase or reduce the
prices or discounts. Price list and/or discount increases or decreases will
become effective 30 days after being issued. If Novell removes any product
from the ICSP Price List, (a) it shall so notify Company following which
Company may not make any additional copies of such Novell Software
following notification, (b) Company shall discontinue use of such Novell
Software within ninety (90) days of receipt of such notification unless it
obtains written permission from Novell not to discontinue use based on
technical reasons or application requirements of the Customer. The ICSP
Price List and all pricing terms shall be treated by Company as
Confidential Information of Novell and shall not be disclosed without
Novell's prior written consent. Novell may offer Company new products
related to the Service through updates to or replacement of the ICSP Price
List. Each updated or new ICSP Price List will describe the new product,
identify any additional license fees associated with the new product, and
identify license rights and restrictions for the new product.
10. THIRD PARTY PRODUCTS. From time to time, Novell Software may include a
component or product of a third party that is accompanied by a license
agreement where such third party (rather than Novell) is the licensor of
such component or product ("Third Party Product"). Notwithstanding anything
to the contrary herein, Company's and the Customer's use of any Third Party
Product shall be governed by the terms of
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the license agreement accompanying the Third Party Product ("Third Party
License"), which are unmodified by this Agreement. In addition, Company is
prohibited from using the Third Party Product in connection with providing
Services except to the extent that such use by Company is permitted under
the terms and conditions of the Third Party License.
11. EVALUATION & KEY ACTIVATION PRODUCTS. From time to time, Novell Software
may include a component or product that is provided for evaluation purposes
only or that requires purchase of an activation key if continued use is
desired. Notwithstanding anything to the contrary herein, Company's and the
Customer's use of the foregoing shall be governed by the terms of the
accompanying license agreement, which terms are unmodified by this
Agreement. Purchase of any such activation key shall be outside the scope
of this Agreement and shall be treated as a separate transaction. In
addition, Company is prohibited from using the foregoing component or
product in connection with providing Services except to the extent that
such use by Company is permitted under the terms and conditions of the
accompanying license agreement.
12. IMPLEMENTATION & NON-EXCLUSIVENESS. Company will be responsible for the
design, implementation, cost, marketing, and day-to-day operation of the
Services. Novell's only obligations with respect to the Service shall be as
expressly set forth in this Agreement. The parties agree that this
Agreement is non-exclusive and Novell shall be free to license similar or
equivalent services to other parties, including Company's competitors.
Prior to the commercial availability of any Services to be provided under
this Agreement, Company will provide the Novell Contract Manager with a
detailed description of such Services.
13. PAYMENTS AND REPORTING. Company shall pay to Novell the specified fees set
forth in this Section 13 and the ICSP Price List.
13.1 Program Enrollment Fee. Company agrees to pay Novell upon signature
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hereof a Program Enrollment Fee of $1,000.00.
13.2 Monthly Royalty. Company agrees to pay Novell Monthly Royalties (as
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set forth in the ICSP Price List) for each User of each Novell
Software shipped to Company hereunder. The Monthly Royalty will be
calculated using the highest number of Users of a particular product
during the month.
13.3 Minimum Royalty. Company agrees to pay a minimum monthly royalty
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equal to the royalty for 1,000 Users or Accounts for each Novell
Software shipped to Company hereunder. The Minimum Royalty cannot be
taken as a credit against future Product Royalties owed or otherwise
offset.
13.4 Third-Party Royalties. The use and copying of some Novell Software
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may require payment of royalties to third-party licensors. If such
products are made available hereunder, and if Company elects to use
such products, Company must report (in a form and manner specified
by Novell) the number of copies of all such products and must pay
the required royalties, provided that Novell gives Company written
notice of the royalty obligation at or before the time Company
begins copying or using such products under this Agreement.
13.5 Subscription Royalty Report and Payment. Company shall prepare and
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submit to Novell no later than the 10th day of each calendar month a
Subscription Royalty Report, the
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form of which will be provided by Novell and may be modified from time
to time. Novell will invoice Company based on the Subscription Royalty
Report received from Company and Company shall pay such invoice within
30 days of the date of invoice or within 30 days of the date that the
Subscription Royalty Report was due, whichever was the earlier. All
payments shall be made payable to Novell, Inc. and sent to Novell at
the address provided by Novell from time to time. Payments made later
than the due date will accrue interest from the date due to the date
paid at the greater of 12% or the highest rate allowed by applicable
law. Company agrees to pay reasonable costs and attorney's fees if
Novell is required to undertake collection against Company.
13.6 Invoice Disputes. Company agrees to give Novell written notice of any
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dispute Company may have concerning any invoice issued by Novell to
Company within 60 days from the date of the invoice. If company fails
to do so, Company agrees that Novell may conclusively presume the
invoice to be accurate.
13.7 Tax. All Payments required under this Agreement shall be non-
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refundable and non-cancelable. All Payments shall be in U.S. dollars,
and shall be exclusive of any federal, state, municipal or other
government taxes, duties, excises or tariffs now or hereinafter
imposed on the production, storage, sale, transportation, import or
export, or use of Novell Software, including sales, use, excise, goods
and services, and value added taxes, but excluding any taxes or fees
based on Novell's net income. Any taxes, duties, excises, tariffs,
fees, or levies imposed on license fees paid hereunder or against this
Agreement, except for taxes or fees based on Novell's net income,
shall be the responsibility of Company, and if rightfully paid or
incurred by Novell, shall be promptly reimbursed to Novell by Company
upon receipt of an invoice from Novell.
13.8 Tax Exemption. In the event that Company is required to withhold and
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pay any taxes, duties, excises, tariffs, fees, or levies imposed on
license fees paid hereunder to a governmental entity other than the
United States and Novell is, or would be, entitled to a credit for
those taxes, duties, excises, tariffs, fees, or levies under a treaty
between the United States and that governmental entity, Company shall
(i) withhold the amount imposed from amounts otherwise due Novell and
shall without undue delay, pay the amount imposed to the governmental
entity and (ii) shall, as promptly as possible, send to Novell an
official tax receipt or other evidence issued by the governmental
entity in a form complying with the treaty.
13.9 Formal Audit. During the Term and for a period of two years
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thereafter, Company agrees to keep and maintain, in a true and
accurate manner, all usual and proper records and books of account and
all usual and proper entries relating to each unit of Novell Software
licensed or distributed including without limitation records of Users
and monthly use. In order to verify statements issued by Company and
Company's compliance with the terms of this Agreement, Novell may
cause (i) an audit to be made of the relevant Company books, records
and networks and/or (ii) an inspection to be made of the relevant
Company facilities, networks and procedures. Any audit or inspection
shall be made by
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Novell or its agents. Any audit and/or inspection shall be
conducted during regular business hours at Company's facilities, upon
three (3) days prior written notice, and shall be conducted so as not
to interfere with Company's normal business activities. Novell shall
give Company a summary report containing only the information
necessary to indicate compliance or non-compliance with this
Agreement. Company agrees to provide the auditor or inspection team
access to the relevant Company records and facilities. Prompt
adjustment shall be made to compensate Novell for any errors or
omissions disclosed by such audit. Any such audit shall be paid for
by Novell unless material discrepancies are disclosed. "Material"
means that the difference between what was reported to Novell and the
actual royalty due Novell was at least 5% of the amount reported to
Novell. If material discrepancies are disclosed, Company agrees to
pay Novell for the costs associated with the audit in addition to the
material discrepancy.
14. OWNERSHIP & RESTRICTIONS.
14.1 No title to or ownership of any Novell Software is transferred to
Company or to Customer, whether by implication, estoppel or
otherwise. All right, title, and interest in and to the Novell
Software shall remain in Novell or Novell's licensors. No Novell or
Novell Software trademarks are licensed to Company hereunder. If
Company becomes aware of any actual or potential unauthorized copying
or other unauthorized use of the Novell Software provided through
Company hereunder by any Customer or any third party, Company agrees
to promptly report such activity or potential activity to Novell.
In such event, or in the case that Novell becomes aware of such
activity, Company agrees to provide reasonable assistance to Novell
as requested by Novell in investigating such activity or potential
activity and in enforcing Novell's rights against such Customer or
third party, provided Novell reimburses Company its reasonable out-
of-pocket expenses in doing so, which expenses will not include
attorney's fees or reimbursement of employee time in reasonable
cooperation with Novell or its counsel. Any damages or other
compensation awarded or received as a result of such investigation
or the bringing of any related claims, or by way of settlement of
such claims, will belong solely to Novell. This section will survive
for a period of two (2) years after the expiration or termination
hereof.
14.2 Company shall not decompile, reverse compile, reverse assemble,
modify in any way, or perform any similar type of operation on Novell
Software. Company agrees that any such resulting works are the sole
and exclusive property of Novell. Nevertheless, Company shall be
free of the foregoing restriction to the extent such restrictions are
not allowed by law.
15. TERM AND TERMINATION.
15.1 Term. This Agreement shall be effective upon the Effective Date and
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shall remain in force for a period of one year unless earlier
terminated as provided in this Section 15 and will automatically
renew for additional one year periods unless either party provides
to the other, no less than 30 days prior to the expiration date,
written notice of its intent to allow the Agreement to expire.
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15.2 Termination for Convenience. Notwithstanding the terms of Section
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15.1, either party may terminate this Agreement at any time without
cause upon not less than 90 days written notice to the other party.
The termination date must be the last day of a calendar month. If
Company terminates for convenience under this paragraph prior to six
months following the commencement hereof, it agrees to pay Novell a
royalty equivalent to three months' minimum royalty for each Novell
Software licensed under this Agreement.
15.3 Termination for Breach. In addition to any other rights or remedies
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available at law or in equity, either party may terminate this
agreement upon any of the following:
i. The other party is in breach of any material obligation
hereunder and such breach is not cured within thirty (30) days
following receipt of written notice specifying the breach and
requiring its remedy. Failure to make timely Payments shall be
considered a breach of a material obligation.
ii. The other party is dissolved, is involved in a financial
restructuring or reorganization, or attempts to assign this
Agreement or any of its rights thereunder in violation of this
Agreement.
iii. The other party is not paying its debts as the debts become
due, becomes insolvent, files or has filed against it a
petition under any bankruptcy law, proposes any dissolution,
liquidation, composition, financial reorganization or
recapitalization with creditors, makes an assignment or trust
mortgage for the benefit of creditors, or if a receiver
trustee, custodian or similar agent is appointed or takes
possession of any property or business.
15.4 Effect of Termination or Expiration. Upon expiration or any
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termination of this Agreement, all rights and licenses granted to
Company shall immediately terminate; provided, however, that in the
event Company terminates the Agreement for Novell's breach under
Section 15.3, or Novell terminates for convenience under Section
15.2, for a period not to exceed 90 days after termination, all
rights, licenses and obligations of Company shall continue to the
minimum extent necessary to allow Company to continue providing the
Service (including but not limited to the obligation to make Payments
and submit royalty reports to Novell). Upon expiration or
termination of this Agreement (or the end of the 90 day period
allowed in the event of termination by Company for Novell's breach
or Novell's termination for convenience), Company shall immediately
cease use of Novell Software (including Master Media), and shall
discontinue providing the Service and ensure that all Novell Software
(including Master Media) are returned to Novell within five (5) days
and certify in writing to Novell that it has returned all Novell
Software (including Master Media) to Novell. Breach of this
provision shall be regarded as a material breach of this Agreement
and will entitle Novell to seek any remedy or damages provided
hereunder or by law including, without limitation, specific
performance and damages including, among other damages, the retail
value of the Novell Software used in the Services for said Customer.
Prior to returning any software to Novell, Company
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must first obtain an RMA (returned merchandise authorization) number
from Novell.
16. CONFIDENTIALITY. The parties agree that any Confidential Information
provided under the Agreement shall be held and maintained in strict
confidence. Each party agrees to protect the confidentiality of such
information in a manner consistent with the way a reasonable person would
protect similar Confidential Information. "Confidential Information" means
the information and materials marked by a party as confidential and
proprietary. "Confidential Information" does not include information that
(i) is already known to the receiving party at the time it is disclosed and
has not been obtained wrongfully, (ii) becomes publicly known without fault
of the receiving party, (iii) is independently developed by the receiving
party, (iv) is approved for release in writing by the disclosing party,
(v) is disclosed without restriction by the disclosing party to a third
party, or (vi) is disclosed pursuant to legal obligations beyond the
control of the disclosing and receiving parties.
17. WARRANTY. Novell warrants any Master Media against physical defects for a
period of 90 days after receipt by Company. Company's sole remedy for
defective Master Media is replacement of such Master Media. EXCEPT AS
OTHERWISE SPECIFIED IN THIS SECTION 17, THE NOVELL SOFTWARE IS PROVIDED
"AS IS" AND NOVELL EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY IS
CAUTIONED TO DETERMINE FOR ITSELF THE SCALABILITY AND SUITABILITY OF THE
NOVELL SOFTWARE FOR THE SERVICES COMPANY DESIRES TO PROVIDE TO CUSTOMERS
UNDER THIS AGREEMENT AND ASSUMES ALL RISK WITH RESPECT THERETO.
17.1 Warranty Representations. Company is not authorized to make any
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warranty commitment on Novell's behalf, whether written or oral,
other than those contained in the applicable Novell End User License
Agreement.
18. INDEMNIFICATION.
18.1 Indemnification by Novell
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i. Novell shall, at its expense and Company's request, defend any
claim or action brought against Company that arises from or is
related to any claim that the Novell Software as delivered to
Company infringes any patent, copyright or trademark of any
third party in the country in which the Customer is provided
the Service and Novell will indemnify and hold Company harmless
from and against any costs, damages and fees reasonably
incurred by Company. The foregoing rights to defense and
indemnity shall exclude all claims for which Novell has a right
to indemnification by Company pursuant to Section 18.2 and are
subject to the following: (i) Company shall promptly notify
Novell in writing of the claim; and (ii) Novell shall have the
sole control of the defense of the action and all negotiations
for its settlement and compromise. Novell's indemnification
obligations in aggregate shall not in any event exceed the
total amounts paid by Company to Novell during the preceding
twelve months under this Agreement.
ii. Should Novell Software, or the operation, marketing or
distribution thereof in accordance with the rights
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granted in this Agreement, become, or in Novell's opinion be
likely to become, the subject of infringement or otherwise
violative of a third party's right, Company shall permit
Novell, at its option and expense, to either (i) procure for
Company the right to continue using Novell Software, or (ii)
replace or modify Novell Software so that they become non-
infringing, provided such replaced or modified Novell Software
retains comparable functionality, or if neither (i) nor (ii) is
commercially and reasonably available, (iii) terminate this
Agreement. Novell shall have no liability to Company under any
provision of this Agreement with respect to any claim of
infringement which is based on the combination or utilization
of software, equipment or devices not provided by Novell or the
modification of Novell Software furnished under this Agreement
where the claim could not have been based on the use of Novell
Software as provided by Novell.
18.2 Indemnification by Company
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i. Company agrees to indemnify, defend and hold Novell harmless
from any and all damages, liabilities, costs and expenses
incurred by Novell as a result of any claims, judgments or
adjudication against Novell arising from or related to the
Service or use or distribution of Novell Software by or for
Company, including but not limited to claims, judgments or
adjudication regarding data that is lost, stolen or damaged and
materials that are defamatory, libelous, illegal, pornographic,
infringing on other parties' intellectual property rights, or
otherwise subject to legal action (such as "spam") being
carried over the Service by Company or users of the Service,
provided: (i) Novell shall promptly notify Company in writing
of the claim; and (ii) Company shall have the sole control of
the defense of the action and Novell uses reasonable efforts to
provide Company, at Company's expense, with information and
assistance for its defense, settlement and/or compromise.
19. LIMITATION OF LIABILITY. NOVELL'S ENTIRE LIABILITY AND COMPANY'S EXCLUSIVE
REMEDY FOR ANY CLAIMS CONCERNING THIS AGREEMENT AND NOVELL SOFTWARE OR
UPGRADES ARE SET FORTH IN THIS SECTION AND SECTION 19.1. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE
TO THE OTHER (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF
LIABILITY) FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS
AGREEMENT AND THE NOVELL SOFTWARE OR UPGRADES THAT ARE SUBJECT TO THIS
AGREEMENT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
19.1 Aggregate Liability. Save for death or personal injury caused by the
negligence of Novell or its employees, Novell's liability for direct
damages to Company for any cause whatsoever, except as otherwise
stated in this Section or in Section 19.2, and regardless of the form
of action, will be limited to the greater of 1) US$100,000 or 2) the
total amount of royalties paid by Company, less any applicable
discount, for the Novell Software that caused the damage or gave
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Novell ICSP Agreement Version 1-5 April 4, 2000
Novell, Inc./Insynq, Inc.
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NOVELL(R) CONFIDENTIAL
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rise to the cause of action calculated from the period of six months
prior to the date that the cause of action arose. This limitation
does not apply to the payment of the costs, damages, and attorney's
fees or to claims by Company for death, personal injury, or damage to
real property or tangible personal property caused by Novell's
negligence.
19.2 Third Party Claims. Save for death or personal injury caused by
------------------
Novell or its employees, Novell shall not be liable for any claim by
the Company based on any third party claim.
20. GENERAL PROVISIONS.
20.1 Notice. Unless otherwise agreed to by the parties, all notices
------
required under this Agreement shall be deemed effective when received
and made in writing by either (i) registered mail, (ii) certified
mail, return receipt requested, (iii) overnight mail, addressed and
sent to the attention, or (iv) by telephone facsimile transfer with
confirmation:
Novell, Inc.
0000 Xxxxx Xxxxxxxxxx Xxx
XX XXX-X-000
Xxxx, Xxxx 00000
Attn:: ICSP Contracts Manager
Insynq, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Art Xxxx
with a copy of legal notices to:
Novell, Inc
0000 Xxxxx Xxxxxxxxxx Xxx
XX ORM-H-211
Xxxx, Xxxx 00000
Attn: General Counsel
Insynq, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Art Xxxx
The above addresses may be changed by providing written notice to the
other party.
20.2 Construction. The headings of this Agreement are provided for
------------
reference only and shall not be used as a guide to interpretation.
20.3 Governing Law. This Agreement shall in all respects be governed by
-------------
and construed in accordance with the laws of the State of Utah,
excluding those laws governing conflicts of law. In addition, the
parties agree that any action relating to or arising under this
Agreement shall be instituted and prosecuted exclusively in the
courts of competent jurisdiction of the State of Utah.
20.4 Force Majeure. If either party shall be prevented from performing any
-------------
portion of this Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war,
governmental regulations or controls, casualty, inability to obtain
materials or services or acts of God, the defaulting party shall be
excused from performance for the period of the delay and for a
reasonable time thereafter.
20.5 Survival of Terms. The provisions of this Agreement which by their
-----------------
nature extend beyond the expiration or termination of this Agreement
will survive and remain in effect until all obligations are
satisfied.
20.6 Waiver. No waiver of any right or remedy on one occasion by either
------
party shall be deemed a waiver of the right or remedy on any other
occasion.
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Novell ICSP Agreement Version 1-5 April 4, 2000
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20.7 Complete Understanding. This Agreement expresses the final, complete
----------------------
and exclusive agreement and understanding between the parties with
respect to their subject matter and supersede all previous
communications, representations or agreements, whether, written or
oral, with respect to the subject matter hereof. Neither of the
parties shall be bound by any conditions, definitions, warranties
understandings or representations with respect to the subject matter
other than as expressly provided under this Agreement. This Agreement
may not be modified by usage of trade, course of dealing or
otherwise. This Agreement is subject to amendment or modification
only by a writing duly signed by both parties.
20.8 Assignment. This Agreement is not assignable by Company, in whole or
----------
in part, including assignments by operation of law, without Novell's
prior written consent. However, Novell shall not unreasonably
withhold consent to assignment of this Agreement by Company in
connection with a sale or transfer of substantially all of Company's
assets related to this Agreement. Any attempted assignment without
Novell's written consent will be null and void. Novell may, without
Company's consent, assign this Agreement without consent in the event
Novell sells or transfers substantially all of the related assets or
technology.
20.9 Severability. If any provision of this Agreement is held invalid,
------------
illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired thereby, and shall be interpreted, to the extent possible,
to achieve the purpose of this Agreement as originally expressed with
the invalid, illegal or unenforceable provision.
20.10 Independent Contractors. Both parties to this Agreement are
-----------------------
independent contractors and each agrees not to represent itself as an
agent or legal representative of the other party.
20.11 Compliance with Laws. Company shall comply, at Company's own expense,
--------------------
with all statutes, regulations, rules, ordinances, and orders of any
government body, department or agency which apply to or result from
Company's obligations under this Agreement.
20.12 Export of Technical Data. Company agrees to comply with all
------------------------
applicable US and foreign export/import laws and regulations. Company
agrees not to export any Custom Software directly or indirectly,
separately or as part of a system, without first obtaining proper
authority to do so from the appropriate governmental agencies or
entities, as may be required by law. Company acknowledges that U.S.
export control laws and regulations apply to technology and software
supplied by Novell. If Novell's shipping documents indicate that
technology and/or software has been exported to Company under License
Exception TSR (Technical Software Restricted), Company agrees Clause
20.12.1 below applies. If Novell's shipping documents indicate that
software has been exported to Company under License Exception TMP
(Temporary), Company agrees Clause 20.12.2 below applies.
1. Company will not knowingly export or re-export the technology
and/or software supplied by Novell to any country or entity or
for any use
--------------------------------------------------------------------------------
Novell ICSP Agreement Version 1-5 April 4, 2000
Novell, Inc./Insynq, Inc.
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prohibited by the U.S. Export Administration Regulations ("EAR")
unless authorized by the U.S. Gov't.
2. Company certifies that this beta test software will only be used
for beta testing purposes, and will not be leased, sub-licensed,
assigned or otherwise transferred, or export any product, process
or services that is the direct product of the beta test software.
IN WITNESS WHEREOF the parties have entered into this Agreement to take effect
on the Effective Date specified in the title to this Agreement.
Accepted by:
NOVELL, INC. Insynq, Inc.
/s/ Xxxx Xxxxxx /s/ M. Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxxx M. Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Name Printed Name Printed
Director of Contracts CAO/Controller
------------------------------- ----------------------------------
Title Title
7/24/00 4/20/00
------------------------------- ----------------------------------
Date Date
--------------------------------------------------------------------------------
Novell ICSP Agreement Version 1-5 April 4, 2000
Novell, Inc./Insynq, Inc.
Page 13
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Exhibit A
Licensed Products, Prices, and Volume Discounts
The following products are licensed to Company pursuant to Section 2.8 of the
Agreement:
--------------------------------------------------------------------------------
Product name Monthly Royalty per User (USD)
--------------------------------------------------------------------------------
Novell Directory Services eDirectory (NDS) 0.10
--------------------------------------------------------------------------------
GroupWise Web Access (GW) 0.05
--------------------------------------------------------------------------------
Novell Internet Messaging System (NIMS) 0.05
--------------------------------------------------------------------------------
BorderManager Enterprise Edition (BM) 0.80
--------------------------------------------------------------------------------
BorderManager VPN Services (BMVPN) 0.38
--------------------------------------------------------------------------------
BorderManager Firewall Services (BMF) 0.55
--------------------------------------------------------------------------------
BorderManager BMAS Services (BMAS) 0.20
--------------------------------------------------------------------------------
Novell Software On-Demand (OD) 1.10
--------------------------------------------------------------------------------
ZENworks for Desktops 1.00
--------------------------------------------------------------------------------
Net Publisher 0.34
--------------------------------------------------------------------------------
Company may apply the following volume discounts on a per product basis. The
User count calculation resets to zero each month.
--------------------------------------------------------------------------------
Highest User count during month Discount
--------------------------------------------------------------------------------
1 - 25,000 None
--------------------------------------------------------------------------------
25,001 - 100,000 10%
--------------------------------------------------------------------------------
100,001 - 175,000 20%
--------------------------------------------------------------------------------
175,001 - 250,000 30%
--------------------------------------------------------------------------------
250,001 - 500,000 40%
--------------------------------------------------------------------------------
500,001 - 1,000,000 50%
--------------------------------------------------------------------------------
1,000,000+ Negotiable
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Novell ICSP Agreement Version 1-5 April 4, 2000
Novell, Inc./Insynq, Inc.
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Exhibit B
Royalty Report Format
Company Information
Reporting period (month and year): ______________________________
Company name: ______________________________
Address: ______________________________
Phone: ______________________________
Fax: ______________________________
E-mail address: ______________________________
Royalty Calculation
---------------------------------------------------------------------------------------------
Product NDS NIMS BMAS BMF OD
---------------------------------------------------------------------------------------------
a. Monthly per User royalty 0.10 0.05 0.08 0.08 1.10
---------------------------------------------------------------------------------------------
b. Highest User count during month
---------------------------------------------------------------------------------------------
c. Product royalty before volume discount (a x b)
---------------------------------------------------------------------------------------------
d. Applicable volume discount GRAND TOTAL
-------------------------------------------------------------------------------------------------------------------
e. Total product royalty (c - d) $
-------------------------------------------------------------------------------------------------------------------
Royalty reports should be submitted via E-mail to xxxxxxx@xxxxxx.xxx, or via fax
------------------
to 000-000-0000 Attn: Xxxxxxx Xxxxxxx or Xxxx Xxxxxx, or via mail to:
Novell Contract Compliance
Attn: Xxxxxxx Xxxxxxx or Xxxx Xxxxxx
0000 X. Xxxxxxxxxx Xxx
XXX-X-000
Xxxx, XX 00000
Payments must be submitted by check in USD to one of the following addresses:
Novell, Inc.
X.X. Xxx 000000
Xxxxxxxxxx, XX
00000-0000
or
Novell, Inc.
X.X. Xxx 00000-0000
Xxxxxxxx, XX
00000-0000
-------------------------------------------------------------------------------
Novell ICSP Agreement Version 1-5 April 4, 2000
Novell, Inc./Insynq, Inc.
Page 15
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NOVELL INTERNET COMMERCIAL SERVICE PROVIDER (ICSP) AGREEMENT
CREDIT ADDENDUM
This Credit Addendum ("Addendum") amends and supplements the Novell Internet
Commercial Service Provider (ICSP) Agreement ("Agreement") between Novell, Inc.
and Insynq, Inc. ("Company"). Company desires to establish credit terms with
Novell for payments due under the Agreement. Novell is willing to grant Company
credit terms provided Company agrees in return to grant Novell certain rights as
safeguards in the collection of money owed under the Agreement.
Therefore, Novell and the Company agree as follows:
1. Credit Terms. In the Agreement, Novell grants Company certain credit terms
------------
for the payment of invoices. The Agreement states in paragraph 13.5, "Company
shall pay such invoice within 30 days of the date of invoice or within 30 days
of the date that the Subscription Royalty Report was due, whichever was the
earlier." Novell and Company hereby agree that ten (10) days following the
expiration of said 30-day credit period ("Credit Period"), if any invoice
amounts remain outstanding, Company expressly grants to Novell the right to take
the measures outlined below to collect said outstanding amounts. Company further
agrees to provide Novell with the proper Credit Card Access information or Bank
Account Access information as requested below, and to send Novell in writing any
updates to the information immediately following any changes to the information.
2. Credit Card Access. Company agrees to provide Novell with sufficient credit
-------------------
card information to permit Novell to charge Company's credit card amounts owned
at the expiration of the Credit Period. Such information shall include the
credit card number, expiration date, credit limit, type of card, and name and
contact information of the card issuer. Only VISA, MasterCard, and American
Express cards will be accepted. Company hereby grants Novell the right to
charge to the card any amounts owed ten days following the end of the Credit
Period.
Credit Card Number: 0000000 0000 00000
------------------------
Expiration Date: 02/03
------------------------
Credit Limit:
------------------------
Type of Credit Card: VISA
------------------------
Card Holder Name: INSYNQ Xxxx Xxxxx
------------------------
Card Holder Address: 0000 Xxxxxxxx Xxxxx Xxxxxx, XX 00000
-------------------------
Card Holder Telephone Number: 000-000-0000
-------------------------
3. Bank Account Access. Company agrees to provide Novell with sufficient bank
-------------------
account information to permit Novell to withdraw from Company's bank account
amounts owed at the expiration of the Credit Period. Such information shall
include the bank account number, routing number, name and contact information of
the bank, and written proof from the bank that Novell has been authorized to
make withdrawals. Company hereby grants Novell the right to withdraw from said
bank account any amounts owed ten days following the end of the Credit Period.
--------------------------------------------------------------------------------
Credit Addendum to ICSP Agreement 11 July, 2000
Novell, Inc./Insynq, Inc.
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Bank Account Number:
---------------------------
Routing Number:
---------------------------
Name of Person on the Account:
---------------------------
Bank's Name:
---------------------------
Bank's Telephone Number:
---------------------------
Bank's Address:
---------------------------
*Written Proof from the bank that Novell has been authorized to make withdrawals
must also be provided.
4. Other Information. Company agrees to provide Novell with any additional
-----------------
information or authorization that is necessary or that may become necessary to
accomplish the purposes of paragraphs 2 and 3 hereof. All information and
authorizations hereunder must be submitted and verified before Novell will
accept any orders or authorize the exercise of any rights under the ICSP.
In witness whereof parties have entered into this Addendum by signature of their
authorized representatives.
Accepted by:
NOVEL, INC. Insynq, Inc.
/s/ Xxxx Xxxxxx /s/ M. Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxxx M. Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Name Printed Name Printed
Director of Contracts Sec/Treas.
------------------------------- ----------------------------------
Title Title
7/24/00 7/17/00
------------------------------- ----------------------------------
Date Date
--------------------------------------------------------------------------------
Credit Addendum to ICSP Agreement 11 July, 2000
Novell, Inc./Insynq, Inc.
Page 2
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Amendment No. 1
To the Novell Internet Commercial Service Provider (ICSP) Agreement
The Novell Internet Commercial Service Provider (ICSP) Agreement and Exhibit A
(Licensed Products, Prices, and Volume Discounts), (collectively, the
"Agreement") by and between Novell, Inc. ("Novell") and Insync, Inc.
("Company"), effective 24 July 2000, is hereby amended as set forth below. This
Amendment No. 1 ("Amendment") is effective when executed by an authorized Novell
signatory ("Effective Date").
WHEREAS, the parties wish to modify Exhibit A of the Agreement in order to more
easily manage product availability under the ICSP Program; and
NOW THEREFORE IT IS AGREED.
1. Novell Software. Exhibit A of the Agreement is hereby replaced with
Exhibit A1, included as part of this Amendment.
2. Term. The term of this Amendment shall be coterminous with the
Agreement.
3. Signature. This Agreement may be signed in one or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS AMENDMENT NO. 1, THE TERMS AND
CONDITIONS OF THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
Accepted by:
NOVEL, INC. INSYNQ, INC.
/s/ Xxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxxx Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Name Printed Name Printed
Director of Contracts CAO
------------------------------- ----------------------------------
Title Title
7/27/00 7/26/2000
------------------------------- ----------------------------------
Date Date
--------------------------------------------------------------------------------
Amendment No. 1 to Novell ICSP Agreement 24 July, 2000
Novell, Inc./Insynq, Inc.
Page 1
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Exhibit A1
Products, Prices, and Volume Discounts
Eligible Products:
All products in the then current ICSP Price List.
Monthly Royalty per User (USD):
Price as listed in the then current ICSP Price List.
Volume Discounts:
Company may apply the following volume discounts on a per product basis. The
User count calculation resets to zero each month.
---------------------------------------------------------------------
Highest User count during month Discount
---------------------------------------------------------------------
1 - 25,000 None
---------------------------------------------------------------------
25,001 - 100,000 10%
---------------------------------------------------------------------
100,001 - 175,000 20%
---------------------------------------------------------------------
175,001 - 250,000 30%
---------------------------------------------------------------------
250,001 - 500,000 40%
---------------------------------------------------------------------
500,001 - 1,000,000 50%
---------------------------------------------------------------------
1,000,000 + Negotiable
---------------------------------------------------------------------
--------------------------------------------------------------------------------
Amendment No. 1 to Novell ICSP Agreement 24 July, 2000
Novell, Inc./Insynq, Inc.
Page 2
