Your Internet
Utility Company TM
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
000.000.0000 Phone
Xxxxxx.xxx
MASTER LICENSE AGREEMENT
BY AND BETWEEN
APTUS
AND
INSYNQ, INC.
This Agreement is entered into as of this 4th day of October, 2004 (the
"Effective Date") by and between Aptus Corp. ("Aptus"), a corporation, having
its principal place of business at 0000 Xxxxxxxx, xxxxx 000, Xxxxxx, Xxxxxxxxxx
and InsynQ, Inc. ("InsynQ"), a Delaware corporation, having its principal place
of business at 0000 Xxxxxxxx Xxxxx Xxxxx 000, Xxxxxx, XX 00000.
RECITALS
A. WHEREAS, InsynQ has developed and provides Internet utility
services and managed application services that together enable,
among other things, application hosting services ("Application
Hosting Services" or "Services") over the Internet;
B. WHEREAS, Aptus wishes to purchase an exclusive Application Hosting
Services provider relationship whereby InsynQ will provide all
application management and hosting services for its online,
Internet-based delivery of MYBOOKS PROFESSIONAL software, and
Aptus wishes to have InsynQ be the exclusive provider of hosting
and management services for the online, Internet-based delivery of
MYBOOKS PROFESSIONAL software.
C. WHEREAS, Aptus will develop a specialized version of the MYBOOKS
PROFESSIONAL software which addresses the specific technical
requirements for hosting and management of the application by
InsynQ;
D. WHEREAS, Aptus wishes to receive 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 Aptus on such terms and
conditions;
NOW THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. DEFINITIONS
1.1. "Application Hosting Services" and "Services" mean 1) the process
of installing software for certain applications on servers
located in InsynQ's data center, 2) the ongoing management of
those applications by InsynQ, and 3) the providing of ongoing
access to those applications using InsynQ's Internet utility on a
subscription basis, including, but not limited to, permitting an
Aptus Customer to remotely access and use Aptus developed
applications (hereinafter referred to as "Aptus Products") and
other Applications hosted by InsynQ, who provide related data
back-up, application delivery, data storage, and upgrades and
maintenance to provided applications.
1.2. "Applications" means those applications offered by InsynQ set
forth on EXHIBIT A, as amended from time to time by InsynQ by
written notice to Aptus.
1.3. "Aptus Resellers" or "Resellers" means entities that are duly
qualified distributors, resellers or marketers of the Aptus
Products in good standing.
1.4. "Aptus Prospects" means all prospective licensees and
sub-licensees of the Services, generated by Aptus directly or
through the Aptus Resellers.
1.5. "Aptus Customer" means any and all customers that purchase any
Aptus products as part of subscribed Application Hosting Services
from InsynQ as a result of the marketing and promotion efforts of
Aptus or any Sub-Marketer as defined in Paragraph 2.3.1.
1.6. "Trademarks" means the trademark, service xxxx, logo and trade
name used by InsynQ in connection with the Services and in the
Documentation, both of which are provided by InsynQ to Aptus from
time to time.
1.7. "Documentation" means all related user and technical guides,
manuals, and additional InsynQ-developed information that may be
developed from time to time.
2. LICENSE GRANTS
2.1. License. InsynQ hereby appoints Aptus and Aptus hereby accepts
appointment to serve as InsynQ's representative for marketing and
promoting the Application Hosting Services through Aptus's direct
means, resellers and partners during the Term of this Agreement
(as hereinafter defined). In connection herewith, but subject to
the terms and conditions of this Agreement, InsynQ hereby grants
Aptus a non-exclusive non-transferable, worldwide license to
promote and market Application Hosting Services to Aptus
Customers and Prospects.
2.2. Terms. All marketing and promotion by Aptus of the application
Hosting Services shall be in accordance with the Application
Hosting Services price list established by InsynQ and provided to
Aptus (as amended from time to time), and will be consistent with
InsynQ's standard Application Hosting Agreement, attached hereto
as EXHIBIT C. All Services will be provided to customers as
identified to InsynQ by Aptus or by direct subscription, and the
rights of customers to access and use the designated products
will be as set forth in the Application Hosting Agreement.
2.3. Distribution.
2.3.1. Aptus may appoint any one or more Aptus Resellers as
sub-marketers ("Sub-Marketer") of the Application Hosting
Services, to exercise any one or more of the rights granted Aptus
in Section 2.1 above, but subject in any event to the terms and
conditions of this Agreement. All Aptus Resellers appointed as
Sub-Marketers shall have first signed an approved Aptus Reseller
Agreement.
2.3.2. Aptus will use its best efforts to ensure that all Sub-Marketers
abide by the terms of their Reseller 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, Aptus shall take all
reasonable steps to ensure that InsynQ shall have the right to
enforce Sub-marketer Agreements as an intended beneficiary.
2.4. Documentation. In addition to the rights granted to Aptus
pursuant to Section 2.1 above, and subject to the terms and
conditions of this Agreement, InsynQ hereby grants to Aptus the
right to reproduce and distribute the Documentation produced for
and made available to Aptus, in whole or in part, in connection
with its marketing and promotion of the Application Hosting
Services.
2.5. No Other Grant. Except as expressly provided herein, InsynQ does
not grant to Aptus, and Aptus does not grant to InsynQ, any right
or license, express or implied.
3. Aptus's OBLIGATIONS
3.1. Development of specialized version of MyBooks Professional
software. Aptus shall develop and provide to InsynQ a specialized
version of the MyBooks Professional software which enables the
technical requirements for hosting the application in InsynQ
environment.
3.1.1. Aptus shall provide ongoing development support, updates, and
technical support for the MyBooks Professional applications being
hosted and managed by InsynQ, and under terms and conditions to
be mutually developed and agreed to.
3.2. Promotion of the Application Hosting Services. Aptus shall use
reasonable commercial efforts to market and promote the
Application Hosting Services by marketing said Services through
its direct sales force and mechanisms and/or resellers to
prospective customers interested in utilizing the Services and
applications in an outsourced environment.
3.3. Advertising. Aptus shall not make any representations or
warranties with respect to the Application Hosting Services
provided by InsynQ that are inconsistent with the descriptions
and warranties contained in the Documentation and shall not make
any representations or warranties on InsynQ's behalf.
3.4. Sales Personnel. Aptus shall equip its sales force with adequate
training, marketing, and sales and technical literature as
determined in Aptus's reasonable judgment, and Aptus agrees to
maintain at all times a competent, qualified sales and support
staff for Services in accordance with Aptus's guidelines and
needs.
3.5. Press Release. Neither party shall have the right to issue any
press release concerning this Agreement without the other party's
prior written approval. The parties shall, however, cooperate so
that each party may issue such a press release.
3.6. Compliance with Law. Aptus shall comply with all laws and
regulations applicable to Aptus's performance hereunder and the
marketing and promotion of the Application Hosting Services.
Without limiting the generality of the foregoing, Aptus (a) shall
not market or promote the Application Hosting Services in any
country where such distribution would be unlawful (provided that
InsynQ shall notify Aptus 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 Aptus 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. Purchase of Exclusive Right to Provide Application Hosting
Services.
4.1.1. InsynQ shall pay Aptus Six Hundred Thousand Dollars ($600,000) in
the form of InsynQ restricted common shares with a fair market
value as of the date of this Agreement, for the exclusive rights
to provide Application Hosting Services for the online,
Internet-based delivery of MYBOOKS PROFESSIONAL software.
4.1.2. InsynQ shall additionally receive the first rights to purchase
the MYBOOKS PROFESSIONAL software, as well as associated
development and source software, in the event that Aptus wishes
to sell such assets.
4.1.3. Aptus may, upon mutual agreement by InsynQ and Aptus, apply some
or all of the Six Hundred Thousand Dollars in value exchanged
towards the purchase of the MyBooks Professional software assets,
including the associated development and source software.
4.2. Fees.
4.2.1. InsynQ shall invoice end-user customers for the Application
Hosting Service fees and associated application license fees.
Invoices shall reflect the total number of users per company and
shall be for the amount reflected in the attached Application
Hosting Services Royalty and Billing Schedule and shown as
EXHIBIT B to this Agreement. InsynQ shall have sole
responsibility for collecting said revenue from the end-user
customer.
4.2.2. InsynQ shall report to and remit to Aptus Aptus's portion of
application license fees associated with any in-force Application
Hosting Services Agreement including Aptus's licensed
application. Reports shall reflect the total number of users
licensed for Aptus's application, and payment shall be for the
amount reflected in the attached Application Hosting Services
Royalty and Billing Schedule and shown as EXHIBIT B to this
Agreement.
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 Aptus at the address
indicated by Aptus to InsynQ.
4.4. Payment Schedule. All payments for Aptus licenses shall be due
and payable to Aptus by InsynQ no later than the 30th day of each
month following the month in which the actual services were
provided to the end-user customer, representing the date of first
available use. InsynQ shall be responsible for payment to Aptus
for each licensee utilizing InsynQ's Application Hosting Services
in conjunction with Aptus's licensed application, regardless of
whether InsynQ receives payment for said services.
5. INSYNQ'S OBLIGATIONS
5.1. Closing of Leads. InsynQ shall use its diligent good faith
efforts to assist Aptus and/or designated resellers in closing of
sales when requested to do so.
5.2. No Warranties. In its dealings with Aptus customers, InsynQ shall
make no representation or statement concerning the quality,
performance, or other characteristics of the Aptus Products other
than those which are consistent in all respects with, and do not
expand the scope of, any statements made by Aptus in Aptus's
standard marketing and promotional materials, Aptus's then
current standard license agreements or as otherwise approved by
Aptus in writing addressed to InsynQ which expressly refers to
this Section 5.2.
5.3. Training. During the term of this Agreement, InsynQ shall provide
an initial one-day sales training session to the existing Aptus
sales team. Training is provided at InsynQ corporate
headquarters.
5.4. Maintenance and Support.
5.4.1. Application Hosting Services in General. InsynQ shall provide
Level 1 maintenance and technical support to Aptus. InsynQ and
Aptus shall both designate appropriate engineering and technical
support staff that shall be available to assist InsynQ and Aptus
in resolving any maintenance and technical support problems.
5.4.2. Aptus Support. Aptus shall be directly responsible for providing
Xxxxx 0 applications and operational support to end-user
customers and resellers.
5.4.3. InsynQ Support. InsynQ shall be directly responsible for
providing Xxxxx 0 and Level 2 support to end-user customers and
Aptus for unresolved technical or related network issues. Under
no circumstances shall InsynQ be liable to take Xxxxx 0 support
calls directly from Aptus resellers.
5.4.4. All categories of support defined in sections 5.4.1, 5.4.2, and
5.4.3 above shall be provided during InsynQ's regular business
hours (7:00a.m. - 6:00p.m. Pacific Standard Time). All support
shall be provided in English from InsynQ's offices, via toll-free
telephone line, toll telephone line, or e-mail response unless
otherwise agreed in advance in writing.
5.5. 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 Aptus 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 Aptus 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. INTELLECTUAL PROPERTY 6.1. Trademark Use.
6.1.1. Use. During the term of this Agreement, Aptus may and without
obligation use and reproduce the Trademarks, including but not
limited to InsynQ, Inc.(TM), in connection with Aptus's
marketing, advertising, promotion, and distribution of the
Services. Aptus's use of the Trademarks shall not create any
right, title or interest therein. Aptus shall use the Trademarks
only in a manner, which complies in all material respects with
InsynQ's policies in effect from time to time.
6.1.2. Goodwill. If Aptus, 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 Aptus and
Aptus agrees to take all such actions necessary to effect such
vesting. Aptus shall not contest the validity of any of the
Trademarks or InsynQ's exclusive ownership of them.
6.1.3. Adoption of Marks. During the Term of this Agreement, Aptus 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, or service xxxx
or other indication of origin, any of the trademarks, service
marks, logos or trade names of Aptus, 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 trade names.
6.2. Protection of Rights. Aptus shall use reasonable efforts to
protect InsynQ's proprietary rights, to the extend 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. Aptus shall
promptly notify InsynQ of any known or suspected infringements of
InsynQ's Proprietary Rights that come to Aptus'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. Aptus shall not take any
action to jeopardize, limit or interfere with InsynQ's ownership
of and rights in the Application Hosting Services.
6.3. Work Product Vests to InsynQ. Upon termination of this agreement
due to breach or insolvency by Aptus, the customized version
runtime, applications, database, and all associated source
software code for the InsynQ-hosted MYBOOKS PROFESSIONAL are to
be immediately delivered to InsynQ for unrestricted, ongoing use
for the purpose of continuing the application hosting services.
Upon such event, InsynQ is relieved of all responsibility to
report to or remit payment to Aptus for licenses of the hosted
application issued or in use by InsynQ's customers.
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
market "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 Aptus Customers purchasing the Application Hosting
Services), whether received by Aptus from InsynQ or developed by
Aptus, 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 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
offers, 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.
8.2.1. 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 Aptus 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 Aptus 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 Aptus resulting from any third
party claim, demand, or suit asserted or instituted against Aptus
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 Aptus
hereunder that Aptus transmits to Aptus Customers or
Sub-Marketers; (iii) an error or failure in the Application
Hosting Services, other than errors or failures in or caused by
the Aptus 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 Aptus 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 InsynQ may see fit (provided that Aptus may participate
in such defense at its expense); and (c) every reasonable
assistance from Aptus which InsynQ may, in its discretion,
require in responding to any such demand or claim or defending
any such suit.
9.2. By Aptus. Aptus 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 Aptus's warranties
and covenants hereunder; (ii) any inaccuracy, omission, error,
defect or mistake in the Aptus Products and/or information
concerning the same furnished by Aptus to InsynQ hereunder that
InsynQ transmits to Aptus's Customer's; or (iii) an allegation
that the Aptus Products infringe upon a patent, copyright,
trademark or other proprietary right of a third party, or
misappropriate a third party's trade secrets. Aptus's obligations
under this Section 9.2 are subject to the conditions that Aptus's
obligations under this Section 9.2 are subject to the conditions
that Aptus 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
Aptus may see fit (provided that InsynQ may participate in such
defense at its expense); and
(c) every reasonable assistance from InsynQ which Aptus 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 BEW 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
CICUMSTANCES SHALL Aptus OR INSYNQ BE LIABLE TO EACH OTHER OR ANY
OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF AN
AMOUNT EQUIVALENT OT THE SUM OF THE FEES PAID OR EARNED
HEREUNDER. The provisions of the Agreement allocate the risks
between Aptus and InsynQ.
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 and fails to cure such breach
within thirty (30) days after written notice thereof. The
inability of InsynQ to provide the Services because of a failure
or degraded service levels with respect to the Internet or such
communications carriers as may be involved in providing said
Services shall not constitute a breach by InsynQ of any material
term of this Agreement.
11.3 Effect of Termination. Upon the expiration or termination of this
Agreement:
(a) InsynQ shall immediately pay to Aptus all Fees and any other
amounts due to Aptus hereunder, and will pay consistent with the
terms hereof any amounts which may accrue following termination;
(b) Aptus 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
Aptus'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 Aptus
shall terminate, provided that, unless Aptus 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 Aptus Customers.
(d) Upon any termination of this Agreement other than non-renewal by
either party under Section 11.1, Aptus may elect (i) to permit
InsynQ to continue to host the Aptus Products on the terms hereof
for access and use by Aptus Users who have entered into an
Application Hosting Agreement with InsynQ as of the date of
termination for a time specified by Aptus (which time Aptus 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 Aptus Products. In either
event, upon the termination of InsynQ's right to host the Aptus
Products, InsynQ will comply with the provisions of the
Application Hosting Agreement in respect to termination. Fees
will continue to be payable to InsynQ for Application Hosting
Services for the Aptus Customers which are provided following
termination pursuant to this provision.
(e) InsynQ agrees that it will offer maintenance and support services
to Aptus 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 though 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 Aptus.
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 y notice to but
without the other party's reasonable consent (i) to a third party
to which substantially all of the assignment 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 of 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; (c) seven (7) business days after posting when sent by
certified or registered US Mail; or (d) two (2) business days if
sent by 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.
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 b e 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. Aptus
By: ____________________________ By: ____________________________
Name: ____________________________ Name: ____________________________
Title: ____________________________ Title: ____________________________
