EXHIBIT 10.29
MASTER LICENSING AGREEMENT
By and between
Viking Software Services, Inc.
and
InsynQ, Inc.
This Agreement is entered into as of this 22nd day of March, 2000 (the
"Effective Date") by and between Viking Software Services, Inc. ("VIKING
SOFTWARE SERVICES, INC.") a Oklahoma 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, VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC. that is
appointed by VIKING SOFTWARE SERVICES, 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 "VIKING SOFTWARE SERVICES, INC. Products" means the Products developed,
manufactured and distributed by VIKING SOFTWARE SERVICES, 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
VIKING SOFTWARE SERVICES, INC. from time to time.
2. LICENSE GRANTS.
2.1 License. Subject to the terms and conditions of this Agreement, INSYNQ
hereby grants VIKING SOFTWARE SERVICES, INC. a non-exclusive, non-transferable,
worldwide license to promote, market,
distribute and sublicense application hosting services, bundled or unbundled
with VIKING SOFTWARE SERVICES, INC. products, to End Users.
2.2 Distribution
(a) VIKING SOFTWARE SERVICES, INC. may distribute the application hosting
services bundled or unbundled with applications hosted by InsynQ or developed
by VIKING SOFTWARE SERVICES, INC. through Licensee provided that prior to
providing the services to any Licensee VIKING SOFTWARE SERVICES, 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
VIKING SOFTWARE SERVICES, INC. uses for its other products. VIKING SOFTWARE
SERVICES, INC. will provide INSYNQ with copies of the Distribution Agreements
upon request.
(b) VIKING SOFTWARE SERVICES, 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, VIKING SOFTWARE SERVICES, INC. shall
take all reasonable steps to ensure that INSYNQ shall have the right to enforce
such agreements as an intended third party beneficiary. VIKING SOFTWARE
SERVICES, INC. further agrees that (i) INSYNQ may join VIKING SOFTWARE SERVICES,
INC. as a named plaintiff in any suit relating to the Services brought by VIKING
SOFTWARE SERVICES, INC. against any Licensing and (ii) VIKING SOFTWARE SERVICES,
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 VIKING SOFTWARE
SERVICES, 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
VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC. any right or license, express or implied
Documentation or Trademarks.
3. VIKING SOFTWARE SERVICES, INC. OBLIGATIONS.
3.1 Promotion of Product. VIKING SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, INC. shall equip its sales
personnel with adequate training, marketing, sales and technical literature as
determined by VIKING SOFTWARE SERVICES, INC.'s reasonable judgement, and VIKING
SOFTWARE SERVICES, INC. agrees to maintain at all times a competent, qualified
sales and support staff for services in accordance with VIKING SOFTWARE
SERVICES, INC.'s guidelines and needs.
2
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. VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC. shall prominently
display VIKING SOFTWARE SERVICES, 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,
VIKING SOFTWARE SERVICES, INC. shall ensure that all questions regarding the use
or operation of the Services distributed hereunder are directed to and answered
by VIKING SOFTWARE SERVICES, INC. VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, INC..
3.6 Compliance with Law. VIKING SOFTWARE SERVICES, INC. shall comply with all
laws and regulations applicable to VIKING SOFTWARE SERVICES, INC.'s performance
and the marketing and distribution of the Services and Products hereunder.
Without limiting the generality of the foregoing, VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, INC. shall pay INSYNQ a fee of $75 per
subscriber of their application as they said subscribers contract to utilize
VIKING SOFTWARE SERVICES, INC. applications in a hosted environment.
4.2 Late Fee. VIKING SOFTWARE SERVICES, 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, VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, 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.
3
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 VIKING SOFTWARE SERVICES, 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,
VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC.
sales team free of charge at VIKING SOFTWARE SERVICES, 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 VIKING
SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, 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 VIKING SOFTWARE SERVICES, INC. in
resolving any maintenance and technical support problems, which support shall
include a designated representative to act as a liason between INSYNQ and VIKING
SOFTWARE SERVICES, INC.
6.0 VIKING SOFTWARE SERVICES, INC.'s OBLIGATIONS
6.1 Trademark Use.
(a) Use. During the term of this Agreement, VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES,
INC.'s marketing, advertising, promotion, and distribution of the Product and/or
Services. VIKING SOFTWARE SERVICES, INC.'s use of the Trademarks shall not
create any right, title or interest therein. VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC. in the course of distributing
the 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
4
reputation occurs, as well as at the expiration or termination of this
Agreement, without any separate payment or other consideration of any kind to
VIKING SOFTWARE SERVICES, INC. and VIKING SOFTWARE SERVICES, INC. agrees to take
all such actions necessary to effect such vesting. VIKING SOFTWARE SERVICES,
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, VIKING SOFTWARE
SERVICES, 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. VIKING SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, INC. shall promptly
notify INSYNQ of any known or suspected infringements of INSYNQ's Proprietary
Rights that come to VIKING SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, 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 (1) 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 VIKING SOFTWARE SERVICES, INC. from INSYNQ or developed by VIKING SOFTWARE
SERVICES, 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.
8.1 By INSYNQ.
5
(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 VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, 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
VIKING SOFTWARE SERVICES, INC. and VIKING SOFTWARE SERVICES, INC. shall have no
authority to extend such warranty to any third party. INSYNQ's sole obligation
and liability, and VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, INC. the purchase price for the defective Product.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES IS LICENSED
TO VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, INC. harmless from any liability or expense paid to third parties
(including without limitation reasonable attorneys' fees) incurred by VIKING
SOFTWARE SERVICES, INC. as a result of any judgment or adjudication against
VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, 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. VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC. a license to use the
infringing materials; or (z) accept the return of the Services and Documentation
and return to VIKING SOFTWARE SERVICES, INC. all unamortized portions of amounts
actually received
6
from VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, INC. by INSYNQ, unless INSYNQ authorized such combination in advance
in writing.
9.3 By VIKING SOFTWARE SERVICES, INC. Except as set forth in Section 9.1,
VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, INC. its Licensings, or VIKING SOFTWARE SERVICES, INC.'s or its
Licensing's representatives and agents, including without limitation, any
material misrepresentation, warranty or guarantee made by VIKING SOFTWARE
SERVICES, 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 VIKING SOFTWARE SERVICES, INC.'s Products infringes any United
States copyright, patent (issued as of the Effective Date), trademark or trade
secret of any third party.
7
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 VIKING SOFTWARE SERVICES, INC. TO INSYNQ
HEREUNDER. IN NO EVENT SHALL INSYNQ HAVE ANY LIABILITY TO VIKING SOFTWARE
SERVICES, 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 three (3) years unless earlier terminated as set forth
herein. The term of this Agreement shall be automatically extended for an
additional one (l) 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) VIKING SOFTWARE SERVICES, INC. shall immediately pay to INSYNQ all
License Fees and any other amounts due to INSYNQ hereunder;
(b) VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE SERVICES, INC. has not paid INSYNQ a License Fee; (ii)
erase any and all of the foregoing from all computer memories and storage
devices within VIKING SOFTWARE SERVICES, 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 VIKING SOFTWARE
SERVICES, 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) Notwithstanding the foregoing, upon the expiration or termination of this
Agreement for any reason other than VIKING SOFTWARE SERVICES, INC.'s breach,
VIKING SOFTWARE SERVICES, INC. and its Licensings may distribute their existing
inventory of the Product for a period of one hundred and eighty (180) days after
the date of such expiration or termination, provided VIKING SOFTWARE SERVICES,
INC. pays INSYNQ License Fees on all copies of the Services so distributed. All
applicable
8
provisions of this Agreement shall continue in force solely for the purpose of
permitting VIKING SOFTWARE SERVICES, INC. and its Licensings to distribute such
existing inventory.
(e) INSYNQ agrees that it will offer maintenance and support services to
VIKING SOFTWARE SERVICES, 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 VIKING
SOFTWARE SERVICES, INC.s or Licensees.
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 VIKING SOFTWARE SERVICES, 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
9
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.
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. INC. VIKING SOFTWARE SERVICES, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President/COO Title: President/CEO
10
EXHIBIT A
INYSYNQ'S SERVICES
InsynQ licenses VIKING SOFTWARE SERVICES, 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 Viking Software Services, Inc. to Viking Software
Services, Inc.'s end-user customers including, but not limited to, Viking
Software Services, 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 Viking Software Services, Inc. in providing them with an
updated application list no less than one time per quarter.
11
EXHIBIT B
Viking Software Services, Inc. Applications
InsynQ agrees to host all pre-tested Viking Software Services, Inc. applications
(as agreed to and adequately licensed by the original application vendor).
Additional products will be hosted by InsynQ as requested by Viking Software
Services, 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 Viking Software
Services, Inc. personnel.
InsynQ warrants that under no circumstances shall InsynQ or associated partners
or representatives attempt to resell Viking Software Services, Inc.'s
applications without express written permission and that all inquiries
associated with the Viking Software Services, Inc. applications shall be
referred directly to Viking Software Services, Inc..
12
Addendum, X
Revision of Section 11.3 (d)
This section will supersede, the verbiage in section 11.3 (d). Notwithstanding
the foregoing, upon the expiration or termination of this Agreement for any
reason other than VIKING SOFTWARE SERVICES, INC. breach, VIKING SOFTWARE
SERVICES, INC. and its Licensee, have a period of one hundred and eighty (180)
days after the date of such expiration or termination, to execute all contracts
enter, prior to the expiration or termination of this contract, provided VIKING
SOFTWARE SERVICES, INC. pays INSYNQ hosting Fees, on all end-user contracts of
the Services so distributed. All applicable provisions of this Agreement shall
continue in force solely for the purpose of permitting VIKING SOFTWARE SERVICES,
INC. and its Licensee to execute all contracts enter, prior to the expiration or
termination of this contract.