EXHIBIT 10.28
MASTER LICENSING AGREEMENT
By and between
Electronic Registry Systems, Inc.
and
InsynQ, Inc.
This Agreement is entered into as of this 7/th/ day of April, 2000 (the
"Effective Date") by and between Electronic Registry Systems, Inc. ("ELECTRONIC
REGISTRY SYSTEMS, INC.") a Ohio corporation, having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. # ▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇ and InsynQ ("InsynQ"), a
Washington corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS
A. WHEREAS, INSYNQ has developed and distributes proprietary services that
enable application hosting over the Internet;
B. WHEREAS, ELECTRONIC REGISTRY SYSTEMS, INC. wishes to obtain a license to
sell such services on the terms and conditions set forth herein, and INSYNQ
wishes to license the sale of such services to ELECTRONIC REGISTRY SYSTEMS, INC.
on such terms and conditions.
NOW THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. DEFINITIONS.
1.1 "Application Hosting" means the process of installing software on a server
located in InsynQ's data center and providing ongoing outsourced services
including, but not limited to data back-up, application delivery and data
storage for a third party.
1.2 "Licensing" means a third party, including any subsidiary, parent or
related or affiliated company of ELECTRONIC REGISTRY SYSTEMS, INC. that is
appointed by ELECTRONIC REGISTRY SYSTEMS, INC. to promote, market and sublicense
the service to End Users.
1.3 "End User means a third party who licenses a copy of the Product for
internal use and not for resale.
1.4 "ELECTRONIC REGISTRY SYSTEMS, INC. Products" means the products developed,
manufactured and distributed by ELECTRONIC REGISTRY SYSTEMS, INC. which are
listed on Exhibit B attached hereto and incorporated herein by reference.
1.5 "Trademarks" means the trademarks, logos and trade names used by INSYNQ in
connection with the Services and Documentation which are provided by INSYNQ to
ELECTRONIC REGISTRY SYSTEMS, INC. from time to time.
2. LICENSE GRANTS.
2.1 License. Subject to the terms and conditions of this Agreement, INSYNQ
hereby grants ELECTRONIC REGISTRY SYSTEMS, INC. a non-exclusive, non-
transferable, worldwide license to promote, market, distribute and sublicense
application hosting services, bundled or unbundled with ELECTRONIC REGISTRY
SYSTEMS, INC. products, to End Users.
2.2 Distribution.
(a) ELECTRONIC REGISTRY SYSTEMS, INC. may distribute the application hosting
services bundled or unbundled with applications hosted by InsynQ or developed by
ELECTRONIC REGISTRY SYSTEMS, INC. through Licensee provided that prior to
providing the services to any LICENSEE ELECTRONIC REGISTRY SYSTEMS, INC. enters
into a written agreement with such Licensing ("Distribution Agreement")
containing at a minimum provisions at least as protective of INSYNQ and not
materially less restrictive on licensing than those as set forth in this
Agreement. It is understood that so long as a Distribution Agreement complies
with the foregoing, it may be a standard form of distribution agreement that
ELECTRONIC REGISTRY SYSTEMS, INC. uses for its other products. ELECTRONIC
REGISTRY SYSTEMS, INC. will provide INSYNQ with copies of the Distribution
Agreements upon request.
(b) ELECTRONIC REGISTRY SYSTEMS, INC. will use its best efforts to ensure that
all Licensees abide by the terms of their Distribution Agreements and, upon
request by INSYNQ, shall keep INSYNQ apprised of its activities to enforce such
terms with particular Licensees. In addition, ELECTRONIC REGISTRY SYSTEMS, INC.
shall take all reasonable steps to ensure that INSYNQ shall have the right to
enforce such agreements as an intended third party beneficiary. ELECTRONIC
REGISTRY SYSTEMS, INC. further agrees that (i) INSYNQ may join ELECTRONIC
REGISTRY SYSTEMS, INC. as a named plaintiff in any suit relating to the Services
brought by ELECTRONIC REGISTRY SYSTEMS, INC. against any Licensing and (ii)
ELECTRONIC REGISTRY SYSTEMS, INC. will take such other actions, give such
information, and render such aid, as may be necessary to allow INSYNQ to bring
and prosecute such suits.
2.3 Documentation. In addition to the rights granted to ELECTRONIC REGISTRY
SYSTEMS, INC. to reproduce the Services pursuant to Section 2.1 above, and
subject to the terms and conditions of this Agreement, INSYNQ hereby grants to
ELECTRONIC REGISTRY SYSTEMS, INC. the right to reproduce and distribute the
documentation produced by INSYNQ including but not limited any service level
agreements, marketing collateral, connectivity guidelines and/or rates, in whole
or in part, in connection with its marketing and licensing of the services.
2.4 No Other Grant. Except as expressly provided herein, INSYNQ does not grant
to ELECTRONIC REGISTRY SYSTEMS, INC. any right or license, express or implied
Documentation or Trademarks.
3. ELECTRONIC REGISTRY SYSTEMS, INC. OBLIGATIONS.
3.1 Promotion of Product. ELECTRONIC REGISTRY SYSTEMS, INC. shall use
reasonable commercial efforts to market, promote and distribute Inynq's services
by marketing said services through their direct sales force to end-users
interested in utilizing application products in an outsourced environment.
3.2 Advertising. ELECTRONIC REGISTRY SYSTEMS, INC. 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. ELECTRONIC REGISTRY SYSTEMS, INC. shall equip its sales
personnel with adequate training, marketing, sales and technical literature as
determined by ELECTRONIC REGISTRY SYSTEMS, INC.'s reasonable judgment, and
ELECTRONIC REGISTRY SYSTEMS, INC. agrees to maintain at all times a competent,
qualified sales and support staff for services in accordance with ELECTRONIC
REGISTRY SYSTEMS, INC.'s guidelines and needs.
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3.4 Press Release. Neither party shall have the right to issue any press
release concerning this Agreement without the other party's prior approval. The
parties shall, however, cooperate so that each party may issue such a press
release in a timely manner.
3.5 Support. ELECTRONIC REGISTRY SYSTEMS, INC. shall be solely responsible for
providing ▇▇▇▇▇ ▇ support defined as taking the end-user customer's first Call
and identifying whether the incident is an application problem specifically or a
InsynQ service incident. In order to support its Licensees and all End Users for
services provided by InsynQ ELECTRONIC REGISTRY SYSTEMS, INC. shall prominently
display ELECTRONIC REGISTRY SYSTEMS, INC.'s technical support telephone number
in the documentation and other material accompanying distribution of services.
Provided that INSYNQ shall have complied with its obligations under Section 5.3,
ELECTRONIC REGISTRY SYSTEMS, INC. shall ensure that all questions regarding the
use or operation of the Services distributed hereunder are directed to and
answered by ELECTRONIC REGISTRY SYSTEMS, INC.. ELECTRONIC REGISTRY SYSTEMS, INC.
shall not represent to any third party that INSYNQ is available to answer any
customer questions directly and INSYNQ shall have no obligation to furnish any
assistance, information or documentation with respect to the services to any
Licensing or End User. INSYNQ shall refer any customer service questions
relating to copies of the services distributed hereunder to ELECTRONIC REGISTRY
SYSTEMS, INC..
3.6 Compliance with Law. ELECTRONIC REGISTRY SYSTEMS, INC. shall comply with
all laws and regulations applicable to ELECTRONIC REGISTRY SYSTEMS, INC.'s
performance and the marketing and distribution of the Services and Products
hereunder. Without limiting the generality of the foregoing, ELECTRONIC REGISTRY
SYSTEMS, INC. (a) shall not distribute the services in any country where such
distribution would be unlawful; and (b) shall comply with all Department
of Commerce and other United States exports controls regarding the license and
delivery of technology and ELECTRONIC REGISTRY SYSTEMS, INC. Products abroad
including the Export Administration Act of 1979, as amended, any successor
legislation, and the Export Administration Regulations issued by the Department
of Commerce, Bureau of Export Administration.
4. COMPENSATION.
4.1 Fees. ELECTRONIC REGISTRY SYSTEMS, INC. shall pay INSYNQ a fee of $80 per
subscriber of their application as they said subscribers contract to utilize
ELECTRONIC REGISTRY SYSTEMS, INC. applications in a hosted environment.
4.2 Late Fee. ELECTRONIC REGISTRY SYSTEMS, INC. shall pay INSYNQ a late charge
on outstanding amounts due equal to one and one half (1-1/2) percent per month
or the maximum amount allowed by law, whichever is less.
4.3 Taxes. Amounts payable to INSYNQ under this Agreement are solely related to
taxes on services and/or products under this Agreement and are payable in full
to INSYNQ without reduction for taxes (including any withholding tax) or customs
duties. in addition, ELECTRONIC REGISTRY SYSTEMS, INC. shall be responsible for
and shall indemnify INSYNQ for any and all taxes (including, without limitation,
sales, use, value-added and similar taxes) and customs duties paid or payable,
however designated, levied, or based on amounts payable to INSYNQ hereunder or
on End-User's use or possession of the Services under or in accordance with the
provisions of this Agreement, but exclusive of United states federal, state and
local taxes based on INSYNQ's net income.
4.4 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 INSYNQ at the address indicated by INSYNQ TO ELECTRONIC REGISTRY
SYSTEMS, INC..
4.5 Payment Schedule. All payments for InsynQ services shall be due a payable
by the 15/th/ day of each month following the month in which the actual services
were contracted.
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4.6 Nonrefundable. Subject to InsynQ's substantial performance of its
obligations as set forth in this Agreement, all amounts received by InsynQ
hereunder shall be nonrefundable.
5. INSYNQ'S OBLIGATIONS.
5.1 Uptime. ASP Warrants that it shall maintain the following service levels
with respect to its End User customers. ASP's systems will be operational such
that End Users have the ability to access the Software a minimum of 97% of the
time. ASP has contractually agreed with ELECTRONIC REGISTRY SYSTEMS, INC. that
access to the Software by their End User customers will be available. In the
event that InsynQ is unable to meet the guaranteed 97% service level agreement,
ELECTRONIC REGISTRY SYSTEMS, INC. shall be compensated as follows: The afore
mentioned up-time, does not include telecommunications lines, or it's ancillary
components at the customers site.
97%+ uptime 0% discount
90% - 96.99% 7% discount off impacted customer's service fees
80% - 89.99% 17% discount off impacted customer's service fees
5.2 Training Fees. During the term of this Agreement, INSYNQ shall provide an
initial one-day sales training to the existing ELECTRONIC REGISTRY SYSTEMS, INC.
sales team free of charge at ELECTRONIC REGISTRY SYSTEMS, INC. corporate
headquarters. Subsequent sales trainings will be charged at the rate of $1,000
per day and all related travel expenses at a location centrally agreed upon by
both parties.
5.3 Maintenance and Support.
(a) General. INSYNQ shall provide maintenance and technical support to
ELECTRONIC REGISTRY SYSTEMS, INC. during INSYNQ's regular business hours (7 am
to 6 pm, Pacific standard time). All support shall be provided in English from
INSYNQ's offices, via a 1-800 telephone line unless otherwise agreed in advance
in writing. INSYNQ shall make best efforts to respond to a customer's "system
down" within 90 (90) minutes from the time that INSYNQ is aware of such "system
down". INSYNQ will provide a said response time related to "system down" issues
24 hours a day, 7 days a week, 365 days per year. ELECTRONIC REGISTRY SYSTEMS,
INC. may make requests for support by telephone, pager, fax, e-mail or any other
reasonable means. INSYNQ's obligation to provide support under this Section 5.3
shall extend solely to requests for support received from ELECTRONIC REGISTRY
SYSTEMS, INC.. INSYNQ will have no obligation to furnish any assistance,
information or documentation with respect to the services to any Licensing or
End User. INSYNQ shall designate appropriate engineering and technically support
staff that shall be available to assist ELECTRONIC REGISTRY SYSTEMS, INC. in
resolving any maintenance and technical support problems, which support shall
include a designated representative to act as a liason between INSYNQ and
ELECTRONIC REGISTRY SYSTEMS, INC..
6.0 ELECTRONIC REGISTRY SYSTEMS, INC.'s OBLIGATIONS
6.1 Trademark Use.
(a) Use. During the term of this Agreement, ELECTRONIC REGISTRY SYSTEMS, INC.
may and without obligation use and reproduce the Trademarks, including but not
limited to InsynQ, Inc.(TM), InterlynQ Server(TM), IdesQ Applicance(TM), and
additional products as developed, in connection with ELECTRONIC REGISTRY
SYSTEMS, INC.'s marketing, advertising, promotion, and distribution of the
Product and/or Services. ELECTRONIC REGISTRY SYSTEMS, INC.'s use of the
Trademarks shall not create any right, title or interest therein. ELECTRONIC
REGISTRY SYSTEMS, INC. shall use the Trademarks only in a manner which complies
in all material respects with INSYNQ's policies in effect from time to time.
(b) Goodwill. If ELECTRONIC REGISTRY SYSTEMS, INC. in the course of
distributing the services, acquires any goodwill or reputation in any of the
Trademarks, all such goodwill or reputation shall
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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 ELECTRONIC REGISTRY SYSTEMS, INC. and ELECTRONIC REGISTRY SYSTEMS, INC.
agrees to take all such actions necessary to effect such vesting. ELECTRONIC
REGISTRY SYSTEMS, INC. shall not contest the validity of any of the Trademarks
or INSYNQ's exclusive ownership of them.
(c) Adoption of Marks. During the term of this Agreement, ELECTRONIC REGISTRY
SYSTEMS, INC. shall not adopt, use, or register, whether as a corporate name,
trademark, service ▇▇▇▇ or other indication of origin, any of the Trademarks, or
any word or ▇▇▇▇ confusingly similar to the Trademarks in any jurisdiction.
6.2 Protection of Rights. ELECTRONIC REGISTRY SYSTEMS, INC. shall use
reasonable efforts to protect INSYNQ's proprietary rights, to the extent that it
is aware of those proprietary rights, related to the 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. ELECTRONIC REGISTRY SYSTEMS, INC. shall promptly
notify INSYNQ of any known or suspected infringements of INSYNQ's Proprietary
Rights that come to ELECTRONIC REGISTRY SYSTEMS, INC.'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. ELECTRONIC REGISTRY SYSTEMS, INC.
shall not take any action to jeopardize, limit or interfere with INSYNQ's
ownership of and rights in the 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 services, including without limitation, all
information with respect to the use, installation and operation of the services,
whether received bY ELECTRONIC REGISTRY SYSTEMS, INC. from INSYNQ or developed
by ELECTRONIC REGISTRY SYSTEMS, INC. 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 who have entered into written
confidentiality agreements with that party consistent with this Section 7.
8. REPRESENTATIONS AND WARRANTIES.
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8.1 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 ELECTRONIC REGISTRY SYSTEMS, INC.
hereunder, (iii) to the best of INSYNQ's knowledge the use, reproduction and
distribution of the 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.
(b) Product Warranty.
(i) INSYNQ warrants that for a period of ninety (90) days after delivery of the
Services to ELECTRONIC REGISTRY SYSTEMS, INC. the Services shall substantially
perform in accordance with its specifications when used in accordance with the
Documentation. All warranty claims not made in writing or within such period
shall be deemed waived. The foregoing warranty is solely for the benefit of
ELECTRONIC REGISTRY SYSTEMS, INC. and ELECTRONIC REGISTRY SYSTEMS, INC. shall
have no authority to extend such warranty to any third party. INSYNQ's sole
obligation and liability, and ELECTRONIC REGISTRY SYSTEMS, INC.'s sole remedy,
with respect to any breach of the foregoing warranty shall be for INSYNQ, at its
option, to correct any defects in the products and services being rendered in
accordance with the procedures in Section 5.3, or to replace any defective media
on which the master copy of the Services is contained or to refund to
ELECTRONIC REGISTRY SYSTEMS, INC. the purchase price for the defective Product.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES IS LICENSED
TO ELECTRONIC REGISTRY SYSTEMS, INC. "AS IS". INSYNQ MAKES NO OTHER WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE
SERVICES OR THE DOCUMENTATION, AND INSYNQ SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE. INSYNQ DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES
WILL MEET ELECTRONIC REGISTRY SYSTEMS, INC.'S REQUIREMENTS OR THAT THE
OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS
IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, INSYNQ DOES NOT MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR
THE DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR
OTHERWISE.
9. INDEMNIFICATION.
9.1 By INSYNQ. INSYNQ agrees to defend, indemnify and hold ELECTRONIC REGISTRY
SYSTEMS, INC. harmless from any liability or expense paid to third parties
(including without limitation reasonable attorneys' fees) incurred by ELECTRONIC
REGISTRY SYSTEMS, INC. as a result of any judgment or adjudication against
ELECTRONIC REGISTRY SYSTEMS, INC. or final settlement arising from any claim
that the Services or Documentation under ordinary use and when used within the
scope of this Agreement, infringe any United States copyright, patent (issued as
of the Effective Date), trademark, or trade secret of any third party; provided
that ELECTRONIC REGISTRY SYSTEMS, INC. provides INSYNQ with (a) prompt written
notice of such claim; (b) promptly tenders to INSYNQ sole control over the
defense and settlement of such claim at INSYNQ's expense and with INSYNQ's
choice of counsel; and (c) full information and reasonable assistance to defend
and/or settle such claim. ELECTRONIC REGISTRY SYSTEMS, INC. may not settle any
such claim without INSYNQ's prior written consent. In the event that the
Services or Documentation, or any part of any of the foregoing, is held, or in
INSYNQ's Sole opinion, may be held to constitute an infringement, INSYNQ, at its
option and expense, may either (x) modify the Services or Documentation so they
become non-infringing; (y) procure for ELECTRONIC
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REGISTRY SYSTEMS, INC. a license to use the infringing materials; or (z) accept
the return of the Services and Documentation and return to ELECTRONIC REGISTRY
SYSTEMS, INC. all unamortized portions of amounts actually received from
ELECTRONIC REGISTRY SYSTEMS, INC. for the infringing Services using a five year
straight line depreciation commencing from the Effective Date.
9.2 Exclusions. Notwithstanding the foregoing, INSYNQ will have no liability
if the alleged infringement arises from (a) the modification of the Services or
Documentation by any party other than INSYNQ; (b) the use of other than the
then-current, unmodified Release of the Services; or (c) the combination of the
Services with computer programs or products not provided to ELECTRONIC REGISTRY
SYSTEMS, INC. by INSYNQ, unless INSYNQ authorized such combination in advance in
writing.
9.3 By ELECTRONIC REGISTRY SYSTEMS, INC.. Except as set forth in Section 9.1,
ELECTRONIC REGISTRY SYSTEMS, INC. hereby agrees to indemnify and hold INSYNQ
harmless against any cost, liability, and expense (including reasonable
attorneys' fees) arising from any action or claim brought or threatened against
INSYNQ arising from (i) the sales and marketing practices of ELECTRONIC REGISTRY
SYSTEMS, INC. its Licensings, or ELECTRONIC REGISTRY SYSTEMS, INC.'s or its
Licensing's representatives and agents, including without limitation, any
material misrepresentation, warranty or guarantee made by ELECTRONIC REGISTRY
SYSTEMS, INC. or its agents, representatives or Licensings regarding the
Services other than those contained in INSYNQ's marketing materials, the
Documentation or INSYNQ's standard customer license agreements; or (ii) a claim
that any of ELECTRONIC REGISTRY SYSTEMS, INC.'s Products infringes any United
States copyright, patent (issued as of the Effective Date), trademark or trade
secret of any third party.
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10. LIMITATION OF LIABILITY.
IN NO EVENT WILL INSYNQ'S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS
AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES OR DOCUMENTATION EXCEED THE
AMOUNT OF FEES ACTUALLY PAID BY ELECTRONIC REGISTRY SYSTEMS, INC. TO INSYNQ
HEREUNDER. IN NO EVENT SHALL INSYNQ HAVE ANY LIABILITY TO ELECTRONIC REGISTRY
SYSTEMS, INC. OR ANY THIRD PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM THE USE OF THE SERVICES OR DOCUMENTATION OR THE FAILURE
OF THE SERVICES TO PERFORM, OR FOR ANY OTHER REASON OR ON ANY THEORY OF
LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF INSYNQ HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY PROVIDED HEREIN. THE PARTIES AGREE THAT THIS SECTION 10
REPRESENTS A REASONABLE ALLOCATION OF RISK.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement shall commence on the Effective Date
and continue for a period of One (1) year unless earlier terminated as set forth
herein. The term of this Agreement shall be automatically extended for an
additional one (1) year period, unless either party notifies the other in
writing a minimum of sixty (60) days prior to the termination date as set forth
herein. Either party has the right to terminate the agreement upon ninety (90)
Days written notice.
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) ELECTRONIC REGISTRY SYSTEMS, INC. shall immediately pay to INSYNQ all
License Fees and any other amounts due to INSYNQ hereunder;
(b) ELECTRONIC REGISTRY SYSTEMS, INC. shall, within ten (10) days of such
expiration or termination (i) return to INSYNQ or destroy all Confidential
Information and all copies thereof, of materials received from INSYNQ and for
which ELECTRONIC REGISTRY SYSTEMS, INC. has not paid INSYNQ a License Fee; (ii)
erase any and all of the foregoing from all computer memories and storage
devices within ELECTRONIC REGISTRY SYSTEMS, INC.'s or its Licensings' possession
or control; 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 ELECTRONIC
REGISTRY SYSTEMS, INC. shall terminate, provided such termination shall not
result in the termination of End User licenses for copies of the Services which
have been purchased by End Users.
(d) INSYNQ agrees that it will offer maintenance and support services to
ELECTRONIC REGISTRY SYSTEMS, INC.'s End Users after termination on terms
substantially similar to those under which it provides such services to End
Users who have licensed the Services directly from INSYNQ or other ELECTRONIC
REGISTRY SYSTEMS, INC.s or Licensees.
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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 ELECTRONIC REGISTRY SYSTEMS, INC..
Termination shall not, however, relieve either party of obligations occurred
prior to such termination.
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 without the other party's consent 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.
12.2 Waiver and Amendment. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed by
the party to be charged. No failure or delay by either party in exercising any
right, power, or remedy under this Agreement shall operate as a waiver of any
such right, power or remedy.
12.3 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by
the laws of the State of Washington. For any disputes arising out of this
Agreement, the parties consent to the personal and exclusive jurisdiction of,
and venue in, the state or federal courts within Tacoma, WA.
12.4 Notices. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered delivered and
effective when (a) personally delivered; (b) the day following transmission if
sent by confirmed facsimile; or (c) three (3) days after posting when sent by
certified or registered US Mail or by registered private carrier (e.g., DHL,
Federal Express, etc.). Notice shall be sent to the parties at the addresses set
forth on the first page of this Agreement or at such other address as shall be
given by either party to the other in writing.
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, constitutes the final, complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes any prior or contemporaneous agreement, either written or
oral.
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.
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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. ELECTRONIC REGISTRY SYSTEMS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President/COO Title: President
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EXHIBIT A
INYSYNQ'S SERVICES
InsynQ licenses ELECTRONIC REGISTRY SYSTEMS, INC. to promote, resell and
distribute the following:
InsynQ's Application Hosting Services
-------------------------------------
Application Hosting Services refer to InsynQ deploying applications offered on a
subscription basis by Electronic Registry Systems, Inc. to Electronic Registry
Systems, Inc.'s end-user customers including, but not limited to, Electronic
Registry Systems, Inc. applications, Microsoft Office Suite, Sun's StarOffice
software, GoldMine! Act, and all other associated applications currently being
hosted by InsynQ.
InsynQ will work with Electronic Registry Systems, Inc. in providing them with
an updated application list no less than one time per quarter.
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EXHIBIT B
Electronic Registry Systems, Inc. Applications
InsynQ agrees to host all pre-tested Electronic Registry Systems, Inc.
applications (as agreed to and adequately licensed by the original application
vendor). Additional products will be hosted by InsynQ as requested by Electronic
Registry Systems, Inc. after InsynQ has tested and certified that additional
products work well and meet minimum performance guidelines on our server farm.
InsynQ's charges for said testing services shall be one hundred fifty ($150.00)
dollars per hour for each hour of time spent by an InsynQ engineer. There will
be no charge for testing services conducted remotely by Electronic Registry
Systems, Inc. personnel.
InsynQ warrants that under no circumstances shall InsynQ or associated partners
or representatives attempt to resell Electronic Registry Systems, Inc.'s
applications without express written permission and that all inquiries
associated with the Electronic Registry Systems, Inc. applications shall be
referred directly to Electronic Registry Systems, Inc.
Electronic Registry Systems, Inc.'s PROPRIETARY RIGHTS IN ITS APPLICATION(S):
InsynQ acknowledges and agrees that Electronic Registry Systems, Inc.'s
applications as well as all documentation, manuals, and copies InsynQ may make
of the Application(s) provided under this agreement are subject to the
proprietary rights of Electronic Registry Systems, Inc, and are trade secrets
and confidential information of Electronic Registry Systems, Inc. Further, the
software is an unpublished work for which Electronic Registry Systems, Inc holds
all rights including copyright. The disclosure of any information pertaining to
the software or providing access to such software or documentation to any third
parties, without the written consent of Electronic Registry Systems, Inc is
absolutely prohibited, in order to prevent dissemination to or use by non-
licensed parties. Neither InsynQ nor its employees or agents are permitted to
decompile, reverse engineer, or otherwise attempt to gain access to the
application(s) source code or to the sequence, structure and organization of the
source code.
InsynQ agrees upon termination for any reason to destroy or return to Electronic
Registry Systems, Inc., the application(s) and all copies of the application(s)
provided by Electronic Registry Systems, Inc. in any form, and InsynQ shall
provide a letter stating that the application(s) have been returned or destroyed
and any copies of the application(s) on the hard disk has been removed.
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