Exhibit 10.32
MASTER LICENSING AGREEMENT
By and between
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
and
InsynQ, Inc.
This Agreement is entered into as of this 21st day of August, 2000 (the
---- ------
"Effective Date") by and between CASTALINK ("▇▇▇▇▇▇▇▇▇.▇▇▇, Inc."), a California
corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and InsynQ, Inc. ("InsynQ"), a Delaware corporation,
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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, CASTALINK 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 CASTALINK 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" 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 CASTALINK Customer to remotely access and use CASTALINK Products
and other Applications hosted by InsynQ, providing related data back-up,
security on a best efforts basis, 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
CASTALINK.
1.3 "CASTALINK Resellers" means entities, which are duly qualified
distributors, resellers or marketers of the CASTALINK Products in good standing.
1.4 "CASTALINK Business Partners" means all affiliates, CASTALINK
Resellers and other third parties appointed by CASTALINK to exercise any of the
rights granted to CASTALINK hereunder to market and promote the Services.
1.5 "CASTALINK Prospects" means all prospective licensees and sub-
licensees generated through the CASTALINK resellers together with any and all
customers other than CASTALINK Users which purchase any Application Hosting
Services from InsynQ as a result of the marketing and promotional efforts of
CASTALINK or any Sub-Marketer.
1.6 "CASTALlNK Customers" means all prospective and licensed customers
contracted to utilize InsynQ's services directly or through their reseller
channel.
1.7 "InsynQ 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 CASTALINK from time to time.
1.8 "CASTALINK Trademarks" means the trademarks, service marks, logos and
trade names used by CASTALINK in connection with the CASTALTNK Products.
1.9 "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 CASTALINK and CASTALINK hereby accepts
appointment to serve as InsynQ's representative for marketing and promoting the
Application Hosting Services through CASTALINK's resellers or partners 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
CASTALINK a non-exclusive, non-transferable, worldwide license to promote and
market Application Hosting Services to CASTALINK Customers.
2.2 Terms. All marketing and promotion by CASTALINK of the Application
Hosting Services shall be in accordance with the Application Hosting Services
price list established by InsynQ and provided to CASTALINK (as amended from time
to time), and will be consistent with InsynQ's standard Application Hosting
Agreement, attached hereto as Exhibit D. All Services will be provided to
customers as identified to InsynQ by CASTALINK 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.
(a) CASTALINK may appoint any one or more CASTALINK Resellers as
sub-marketers ("Sub-Marketer") of the Application Hosting Services, to exercise
any one or more of the rights granted CASTALINK in Section 2.1 above, but
subject in any event to the terms and conditions of this Agreement. All
CASTALINK Resellers appointed, as Sub-Marketers shall have first signed an
approved CASTALINK Reseller Agreement.
(b) CASTALINK 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, CASTALINK 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 CASTALINK pursuant
to Section 2.1 above, and subject to the terms and conditions of this Agreement,
InsynQ hereby grants to CASTALINK the right to reproduce and distribute the
documentation produced by and made
CastaLink/INSYNQ/11l2net2agm 2
August 3, 2000
available to CASTALINK (the "Documentation"), 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 CASTALINK and CASTALINK does not grant to InsynQ, any right or license,
express or implied.
3. CASTALINK 'S OBLIGATIONS.
3.1 Promotion of the Application Hosting Services. CASTALINK shall use
reasonable commercial efforts to market and promote the Application Hosting
Services by marketing said Services through its direct sales force and/or
reseller to customers interested in utilizing the Services and applications in
an outsourced environment.
3.2 Advertising. CASTALINK 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.
3.3 Sales Personnel. CASTALINK shall equip its sales force with adequate
training, marketing, sales and technical literature as determined by CASTALINK's
reasonable judgment, and CASTALINK agrees to maintain at all times a competent,
qualified sales and support staff for services in accordance with CASTALINK'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 written prior
approval. The parties shall, however, cooperate so that each party may issue
such a press release.
3.5 Compliance with Law. CASTALINK shall comply with all laws and
regulations applicable to CASTALINK's performance hereunder and the marketing
and promotion of the Application Hosting Services. Without limiting the
generality of the foregoing, CASTALINK (a) shall not market or promote the
Application Hosting Services in any country where such distribution would be
unlawful (provided that InsynQ shall notify CASTALINK 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
CASTALINK 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.
3.6 CASTALINK Support. CASTALINK shall be responsible for providing
support greater than Level 1 to CASTALINK Customers for issues not relating to
an InsynQ service incident. Provided that InsynQ shall have complied with its
obligations under Section 5.3, CastaLink shall ensure that all questions
regarding the use or operation of CASTALINK Product distributed hereunder are
directed to and answered by CASTALINK or their appointed 3rd party
representative.
CastaLink/INSYNQ/11l2net2agm 3
August 3, 2000
4. COMPENSATION.
4.1 Fees. InsynQ shall be entitled to receive Application Hosting Fees as
per the fee schedule listed in Exhibit B for each subscriber of CASTALINK
Products as the said subscribers contract to utilize CASTALINK via InsynQ's
Application Hosting Services.
4.2 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 CASTALINK at the address indicated by CASTALINK to
InsynQ.
4.3 Payment Schedule. All payments to CASTALINK shall be due and payable
by InsynQ by the 30th day of the month following initial activations.
4.4 Nonrefundable. Subject to CASTALINK's substantial performance of its
obligations as set forth in this Agreement, all amounts received by CASTALINK
hereunder shall be nonrefundable.
4.5 Pipeline report. CASTALINK will provide InsynQ with a sales pipeline
report of CASTALINK Customer prospects no later than the 10th of each month, in
substantially the same format as shown in Exhibit C attached herewith.
4.6 Audit. InsynQ shall keep such books and records as are required to
document payments due to CASTALINK 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, CASTALINK 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.
4.7 Pricing. InsynQ acknowledges that CastaLink will determine the total
subscription fees charged to CASTALINK Customers, such total subscriptions fees
to provide for the licensing of CastaLink's Software ("License Fees") and for
InsynQ's fees ("Application Hosting Fees") as agreed upon by and between
CastaLink and InsynQ in Exhibit B.
5. InsynQ'S OBLIGATIONS.
5.1 Closing of Leads. InsynQ shall use its diligent good faith efforts to
assist CASTALINK and/or designated Resellers in closing of sales when requested
to do so.
5.2 No Warranties. In its dealings with CASTALINK Customers, InsynQ shall
make no representation or statement concerning the quality, performance or other
characteristics of the CASTALINK Products other than those which are consistent
in all respects with, and do not expand the scope of, any statements made by
CASTALINK in CASTALINK's standard marketing and promotional materials,
CASTALINK's then current standard license agreements or as otherwise approved
by CASTALINK in a 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 to the existing CASTALINK sales team free of
charge at CASTALINK corporate headquarters. Subsequent sales trainings will be
charged at the rate of $1,000 per day and all
CastaLink/INSYNQ/11l2net2agm 4
August 3, 2000
related travel expenses at a location centrally agreed upon by both parties.
InsynQ will also provide a one day technical administration training class to
CASTALINK and Sub-Marketers in Sacramento, California prior to September 30,
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
5.4 Maintenance and Support.
(a) Application Hosting Services in General. InsynQ shall provide
maintenance and technical support to CASTALINK licensee's and CASTALINK
Customers during InsynQ's regular business hours (7 am to 6 pm, 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. lnsynQ 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". CASTALINK 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 5.4 shall extend solely to
requests for support received from CASTALINK. InsynQ shall designate
appropriate engineering and technical support staff that shall be available to
assist CASTALINK in resolving any maintenance and technical support problems.
Support shall include a designated representative to act as a liaison between
InsynQ and CASTALINK.
(b) InsynQ Support. InsynQ shall be directly responsible for providing
▇▇▇▇▇ ▇ support to Resellers and CASTALINK Customers defined as taking CASTALINK
Customer's first call and identifying whether the incident is an application
problem specifically or an InsynQ service incident.
5.6 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 CASTALINK 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 CASTALINK 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.
5.7 Collection. InsynQ will be responsible for the collection of the
subscription fees to include Application Hosting Fees and License Fees, from
customers subscribing to CastaLink applications using InsynQ's Services. InsynQ
will disburse the funds to CASTALINK as per section 4 of this agreement.
5.8 Security. InsynQ shall make best efforts to provide adequate programs
and procedures against unauthorized breaches of security compromising CASTALINK
Customer and CASTALINK data and transmissions.
6.0 INTELLECTUAL PROPERTY
6.1 Insynq Trademark Use.
(a) Use. During the term of this Agreement, CASTALINK may and without
obligation use and reproduce the InsynQ Trademarks, including but not limited
to InsynQ, Inc.,(TM) InterlynQ
CastaLink/INSYNQ/11l2net2agm 5
August 3, 2000
Server(TM), IdesQ Applicance(TM), and additional products as developed, in
connection with CASTALINK's marketing, advertising, promotion, and distribution
of the Product and/or Services. CASTALINK's use of the InsynQ Trademarks shall
not create any right, title or interest therein. CASTALINK shall use the InsynQ
Trademarks only in a manner which complies in all material respects with
InsynQ's policies in effect from time to time.
(b) Goodwill. If CASTALINK in the course of marketing and promoting the
Application Hosting Services, acquires any goodwill or reputation in any of the
InsynQ 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
CASTALINK and CASTALINK agrees to take all such actions necessary to effect such
vesting. CASTALINK shall not contest the validity of any of the InsynQ
Trademarks or InsynQ's exclusive ownership of them.
(c) Adoption of Marks. During the Term of this Agreement, CASTALINK shall
not adopt, use (except as provided herein), or register, whether as a corporate
name, trademark, service ▇▇▇▇ or other indication of origin, any of the InsynQ
Trademarks, or any word or ▇▇▇▇ confusingly similar to the InsynQ Trademarks in
any jurisdiction. CASTALINK 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 CASTALINK Trademark Use.
(a) Use. During the term of this Agreement, InsynQ may and without
obligation use and reproduce the CASTALINK Trademarks, including but not limited
to CastaLink(TM) and LinkSpan(TM), and additional products as developed, in
connection with InsynQ's marketing, advertising, promotion, and distribution of
the Product and/or Services. InsynQ's use of the CASTALINK Trademarks shall not
create any right, title or interest therein. InsynQ shall use the CASTALINK
Trademarks only in a manner which complies in all material respects with
CASTALINK's policies in effect from time to time.
(b) Goodwill. If InsynQ, in the course of marketing and promoting the
Application Hosting Services, acquires any goodwill or reputation in any of the
CASTALINK Trademarks, all such goodwill or reputation shall automatically vest
in CASTALINK 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
InsynQ and InsynQ agrees to take all such actions necessary to effect such
vesting. InsynQ shall not contest the validity of any of the CASTALINK
Trademarks or CASTALINKs exclusive ownership of them.
(c) Adoption of Marks. During the Term of this Agreement, InsynQ shall not
adopt, use (except as provided herein), or register, whether as a corporate
name, trademark, service ▇▇▇▇ or other indication of origin, any of the
CASTALINK Trademarks, or any word or ▇▇▇▇ 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.
CastaLink/INSYNQ/1112net2agm 6
August 3, 2000
6.3 Protection of Rights. CASTALINK 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. CASTALINK shall promptly notify
InsynQ of any known or suspected infringements of InsynQ's Proprietary Rights
that come to CASTALINK'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. CASTALINK 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 CASTALINK Customers purchasing
the Application Hosting Services), whether received by CASTALINK from InsynQ or
developed by CASTALINK 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 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.
CastaLink/INSYNQ/11l2net2agm 7
August 3, 2000
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 CASTALINK 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 CASTALINK 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
CASTALINK resulting from any third party claim, demand, or suit asserted or
instituted against CASTALINK 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 CASTALINK hereunder that CASTALINK transmits to CASTALINK
Customers or Sub-Marketers; (iii) an error or failure in the Application Hosting
Services, other than errors or failures in or caused by the CASTALINK 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 CASTALINK 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 CASTALINK may participate in such defense at its expense);
and
(c) every reasonable assistance from CASTALINK which InsynQ may, in its
discretion, require in responding to any such demand or claim or defending any
such suit.
9.2 By CASTALINK. CASTALINK 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 CASTALINK 's
warranties and covenants hereunder; (ii) any inaccuracy, omission, error, defect
or mistake in the CASTALINK Products and/or information concerning the same
furnished by CASTALINK to InsynQ hereunder that InsynQ transmits to CASTALINK
Customers; or (iii) an allegation that the CASTALINK Products infringe upon a
patent, copyright, trademark or other proprietary right of a third party, or
misappropriate a third
CastaLink/INSYNQ/1112net2agm 8
August 3, 2000
party's trade secrets. CASTALINK's obligations under this Section 9.2 are
subject to the conditions that CASTALINK 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 CASTALINK may
see fit (provided that InsynQ may participate in such defense at its expense);
and
(c) every reasonable assistance from InsynQ which CASTALINK 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. 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.
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.
11.3 Effect of Termination. Upon the expiration or termination of this
Agreement:
(a) InsynQ shall immediately pay to CASTALINK all fees and any other
amounts due to CASTALINK hereunder, and will pay consistent with the terms
hereof any amounts which may accrue following termination;
(b) CASTALINK 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 CASTALINK'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.
CastaLink/INSYNQ/11l2net2agm 9
August 3, 2000
(c) All rights and licenses granted by InsynQ hereunder to CASTALINK shall
terminate, provided that, unless CASTALINK 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 CASTALINK
Customers.
(d) Upon any termination of this Agreement other by non-renewal by either
party under Section 11.1, CASTALINK may elect (i) to permit InsynQ to continue
to host the CASTALINK Products on the terms hereof for access and use by
CASTALINK Customers who have entered into an Application Hosting Agreement with
InsynQ as of the date of termination for a time specified by CASTALINK (which
time CASTALINK 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 CASTALINK Products. In either event, upon the termination of
InsynQ's right to host the CASTALINK Products, InsynQ will comply with the
provisions of the Application Hosting Agreement in respect of termination. Fees
will continue to be payable to InsynQ for Application Hosting Services for the
CASTALINK customers which are provided following termination pursuant to this
provision.
(e) InsynQ agrees that it will offer maintenance and support services to
CASTALINK 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 CASTALINK. 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.
CastaLink/INSYNQ/l112net2agm 10
August 3, 2000
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., DELL,
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 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.
Insyin Inc. ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------- -------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO & Chairman Title: COO
CastaLink/INSYNQ/11l2net2agm 11
August 3, 2000
EXHIBIT A
APPLICATIONS AND ASSOCIATED FEE SCHEDULE
CastaLink/INSYNQ/11l2net2agm 12
August 3, 2000
[INSYNQ LOGO APPEARS HERE]
IQ PRODUCTS & SERVICES PRICE
IQ CUSTOMER PREMISE EQUIPMENT (C.P.E.)
--------------------------------------
*CPE Pricing reflect Acquisition; Lease Pricing TBD
IDESQ Desktop Appliance
8MB DOC/32MB RAM ETHERNET; 10 BASE-T; 449.00
1MB VIDEO (800x600 RESOLUTION)
YOURWEBPC Desktop Appliance
1) 32MB DOC/64MB RAM ETHERNET; 10 BASE-T 559.00
2) 32MB DOC/64MB RAM DIAL-UP 56K MODEM 489.00
*Infra-red KeyBoard & Mouse
*Standard KeyBoard & Mouse
INTERLYNQ Server
64MB RAM; 10base-t Ethernet: Webcache, firewall, print,
email (SMTP & POP), router, file sharing, browser-based
configuration and administration, boot-p, NAT, DNS, VPN,
IdesQ server
1) Dual ethernet (for DSL or other external router connection) 995.00
2) Fractional T-1 or Dedicated 56K (requires, but does not
include appropriate CSU/DSU) 1695.00
INQ Print Server
In Production............ TBD
Installation
ON-PREM Local Installation HOURLY 65.00
IQ CONNECTIVITY
---------------
Bundled Circuits (DSL only!)
Global Crossing 160K DSL DSL ONLY/3YR/NO INSTALL 110.00
Global Crossing 160K DSL BUNDLED/3YR/NO INSTALL 105.00
DSL Connectivity Hardware
Netopia R7100 Router 695.00
IQ VIRTUAL DESKTOP SERVICES
---------------------------
STANDARD Subscription Includes: Hosting of Productivity Application
Suite; Internet browser; Internet e-mail Central file area; 100MB
storage per user or 1GB storage per organization (min 5 users)
INSYNQ USER PROFILE ADD/CHG/DEL ONE-TIME; A/C/D PROFILE 19.00
INSYNQ STANDARD SUBSCRIPTION MONTHLY; STD APPS* 80.00
INSYNQ ADDITIONAL APPLICATION MONTHLY; APPROVED APP 10.00
*Note: All packages include standard IQ Support, Redundant Data Storage,
SLA, Data Security, Virus Protection, and Initial Training
*Note: Productivity Application Suite can be StarOffice at no charge - or
Microsoft Office 2000, provided customer buys the software
and signs a License Transfer Agreement
MS/Exchange (with Virtual Desktop Only) MINIMUM 5 USERS/ORG
1 e-mail alias per user and 2 organization distribution groups
standard with MS/Exchange services initial installation
INSYNQ MS/EXCHANGE SERVICES MAILBOX MONTHLY; 15MB 15.00
INSYNQ MS/EXCHANGE STORAGE MONTHLY; ADDITIONAL 15MB 15.00
INSYNQ MS/EXCHANGE PROFILE ONE-TIME; E-MAIL DIST GRP 5.00
INSYNQ MS/EXCHANGE PROFILE ONE-TIME; E-MAIL ALIAS 5.00
INSYNQ MS/EXCHANGE PROFILE MONTHLY; E-MAIL FORWARD 5.00
Additional Application Software Notes:
*See HOSTED APPLICATIONS List for additional IQ Approved AppLications
*For Additional Hosted Applications, Customer must either transfer the
licenses of their currently owned apps, or purchase the applications
and transfer the licenses to InsynQ.
Single Application Software Testing
Software Functionality & Performance Testing on IQ Server
Farm (refundable) 1500.00
Additional Data Storage ONE-SEAT
INSYNQ HOSTED DATA STORAGE ONE-TIME SETUP 250.00
INSYNQ HOSTED DATA STORAGE MONTHLY; ADDITIONAL 1GB 50.00
IQ CUSTOMER DEMOS
-----------------
STAROFFICE DEMO 7 DAY USER DEMO FREE
OFFICE 2000 DEMO 7 DAY USER DEMO FREE
*NOTE: Client can call Help Desk directly to have Demo Acct setup.
IQ COLLABORATIVE MESSAGING MINIMUM 5 USERS/ORG
--------------------------
1 e-mail alias per user and 2 organization distribution groups standard
IQ USER PROFILE SETUP ONE-TIME FEE 19.00
IQ COLLABORATIVE MESSAGING MONTHLY 25.00
*Note: ICM is a Web-Based service that does not require Citrix Client
IQ LAN FORWARDING MINIMUM 5 USER/ORG
-----------------
Internet-based, LAN Access, No Hosted Applications, Limited
Hosted Data Storage
Includes DSL Connectivity (GC/Northpoint) where available
IQ USER PROFILE SETUP ONE-TIME FEE 19.00
REMOTE ACCESS TO CORPORATE L.A.N. MONTHLY 50.00
*Note: Plus IQ Support, Redundant Data Storage, SLA, Data Security,
Virus Protection, Initial Training
Additional Data Storage ONE-SEAT
INSYNQ HOSTED DATA STORAGE ONE-TIME SETUP 250.00
INSYNQ HOSTED DATA STORAGE MONTHLY; ADDITIONAL 1GB 50.00
IQ DATA BANKING ONE-SEAT
---------------
Single Subscription, Near-Line Off-site Storage, 1 GB/Organization
IQ USER PROFILE SETUP ONE-TIME FEE 19.00
INSYNQ HOSTED DATA STORAGE ONE-TIME SETUP 250.00
INSYNQ HOSTED DATA STORAGE MONTHLY; ADDITIONAL 1GB 50.00
*Note: Plus IQ Support, Redundant Data Storage, SLA, Data Security,
Virus Protection, Initial Training
IQ WEB-HOSTING
--------------
IQ E-COMMERCE SOLUTION 25MB SITE/MONTHLY 25.00
26-150MB SITE/MONTHLY 75.00
DOMAIN REGISTRATION HOSTING ANNUAL FEE 70.00
*Note: Bandwidth $1000 per Mb for 1Mb through 5Mb - $700 per Mb
for 6Mb and beyond.
IQ PROFESSIONAL TECHNOLOGY & CUSTOMER SUPPORT SERVICES
--------------- --------------------------------------
60-days free telephone and web-based support with all new
subscriptions.
INSYNO CONSULTING SERVICES TECHNOLOGY CONSULTING 200.00 HOURLY
LAN/WAN DESIGN SERVICES
PROJECT MANAGEMENT
ISV STRATEGY CONSULTING
INSYNQ LOCALTECH SERVICES ENGINEERING SURVEY
OF EXISTING TECHNOLOGIES 150.00 HOURLY
INSYNQ LOCALTECH SERVICES BASIC INSTALLATION SERVICE 75.00 HOURLY
INSYNQ LOCALTECH SERVICES ADVANCED INSTALLATIONS 175.00 HOURLY
INSYNQ LOCALTECH SERVICES LOCAL INTEGRATION SERVICE 175.00 HOURLY
INSYNQ CS SERVICES SUBSCRIBER SILVER 30.00 MONTHLY
INSYNQ CS SERVICES SILVER PER-CALL 8.00 PER CALL
INSYNQ CS SERVICES SUBSCRIBER GOLD 40.00 MONTHLY
INSYNQ CS SERVICES GOLD PER-CALL 10.00 PER CALL
INSYNQ CS SERVICES SUBSCRIBER PLATINUM 50.00 MONTHLY
INSYNQ CS SERVICES PLATINUM PER-CALL 12.00 PER CALL
INSYNQ PARTNER CS SERVICES SILVER PARTNER SUPPORT 100.00 MONTHLY
INSYNQ ASP MANAGED SERVICES BASELINE MGMT PER RACK
INSYNQ ASP MANAGED SERVICES CUSTOM MANAGEMENT 3000.00 MONTHLY
INSYNQ ASP MANAGED SERVICES WTS ADMINISTRATION CALL MONTHLY
INSYNQ ASP MANAGED SERVICES APP SVR RENTAL-CUSTOM CALL MONTHLY
CALL MONTHLY
INSYNQ MANAGED SERVICES SYSTEM MANAGEMENT
INSYNQ MANAGED SERVICES WEB SITE/SERVER MGMT CALL CALL
CALL CALL
INSYNQ CO-LOCATION SERVICES CO-LOCATION RACK SPACE
INSYNQ CO-LOCATION SERVICES CO-LOCATION RACK SPACE 500.00 MONTHLY
*Note: Bandwidth $1000 per Mb for 1Mb through 5Mb - $700 per Mb 750.00 MONTHLY
for 6Mb and beyond.
SPECIAL PRINTER NOTE:
--------------------
IQ Solutions prefer HP Laser Printers - easier to work with, better reliability,
and compatible with HP 500X print server used by InsynQ.
EXHIBIT B
Subscription Software License Fee and Billing Schedule
InsynQ will invoice CASTALINK Customers for the total subscription fees
comprised of License Fee and the Application Hosting Fees and provide payment of
the License Fees to CASTALINK by the 30th of each month for the number of
subscribers in the previous month. License Fees shall be paid to CASTALINK by
InsynQ attached to an audit report showing the name of the customer, their
address and the number of seats being hosted. The definition of Power User and
Casual User are defined by CASTALINK as:
Power User: User who has overall responsibility of workflow through CASTALINK
Products. Such individuals may include planners, procurement people, etc.
Casual User: User who has casual interaction with CASTALINK Products to initiate
workflow. Such individuals include customers, suppliers, management of CASTALINK
Customers.
The License Fee is payable per month to InsynQ for each CASTALINK Customer
purchasing Application Hosting Services and will be determined according to the
schedules outlined below.
InsynQ's Application Hosting Services fee for a Power User
----------------------------------------------------------
Number of Seats* Per Subscriber Per Month Hosting Fee
0-500 $75.00
501-1,000 $70.00
1,001+ $65.00
InsynQ's Application Hosting Services fee for a Casual User
-----------------------------------------------------------
Number of Seats* Per Subscriber Per Month Hosting Fee
0-500 $45.00
501-1,000 $40.00
1,001+ $35.00
InsynQ will not change the Application Hosting Fee through the original term of
the Master Licensing Agreement by and between InsynQ and CASTALINK dated 8/21/00
-------
but reserves the right to change the Application Hosting Services fee once every
three months upon sixty (60) days prior written notice to CASTALINK on renewal
of said contract.
* Number of seats means the cumulative sum of Power User seats or Casual User
seats, respectively, for all CASTALINK Customers using InsynQ Services.
*Each InsynQ profile is charged a one-time set-up fee of $19.00, that includes
Castalink, staroffice, and internet mail. InsynQ charges an additional $10.00
hosting fee, for each additional application added to a user-profile.
*Each Casual User profile consists of the CastaLink Application only.
CastaLink/INSYNQ/11l2net2agm 13
August 3, 2000
EXHIBIT C
Pipeline Report
CastaLink/INSYNQ/11l2net2agm 14
August 3, 2000
--------------------------------------------------------------------------------------
Number of Confidence Estimated
Company Name Per-Seat Cost Seats Level Close Date Comments/Concerns
--------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Weekly Status Report Page 1