EXHIBIT 10.33
APPLICATION HOSTING AGREEMENT
BY AND BETWEEN
INSYNQ, INC. AND REMEDY CORPORATION
This Application Hosting Agreement ("Agreement") is made and entered into this
12th day of May 2000 ("Effective Date") by and between Remedy Corporation Inc. a
Delaware corporation with its principal offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Remedy Corporation") and InsynQ, Inc., a Washington
Corporation with its principal offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
("InsynQ"). Remedy Corporation and InsynQ are sometimes referred to herein
jointly as the "Parties" and individually as a "Party" Remedy Corporation is
also referred to herein as a "Customer".
1. Scope of Services
----------------------
1.1 InsynQ will provide Remedy Corporation remote access to the computer
--- hardware servers controlled and owned by InsynQ (the "InsynQ Servers")
on which fully operational and stable versions of the following
software (collectively the "Software") is installed:
(a) Web Based Training
--------
1.2 InsynQ will provide Remedy Corporation additional services as
requested by Remedy Corporation on terms and conditions mutually
agreed upon by the Parties,
1.3 InsynQ will provide Remedy Corporation with certain hardware and
software support services, for the Software ("Support Services") as
set forth in Section 2 hereunder.
2. Access to InsynQ Servers.
2.1 InsynQ will provide Remedy Corporation with the ability to remotely
access and use the Software that is hosted on InsynQ Servers ("InsynQ
Service") as of the date that installation is completed (the
"Completion Date"). As of the Completion Date, the InsynQ Service will
be available to Remedy Corporation for 99.5% of all Scheduled
Available Time as it relates solely to InsynQ's network and host
internet access. InsynQ does not guarantee accessibility as it relates
to hardware and connectivity located at the customer's site and
outside of InsynQ's direct control.
2.2 "Scheduled Available Time" shall be defined as twenty-four hours-a-
day, seven days-a-week, excluding (1) scheduled maintenance downtime
of two (2) hours per week, which shall only be scheduled on Saturday
and Sunday; (2) maintenance downtime for specific critical Software
issues InsynQ shall contact Remedy Corporation at least 24 hours in
advance of the need for such downtime, to schedule a mutually
agreeable time to perform such maintenance; and (3) any downtime due
to Software defects, or caused by other forces beyond the immediate
control of InsynQ.
2.3 InsynQ will track the Scheduled Available Time for each calendar month
and in the event that InsynQ Service is not available for two or more
hours of the 99.5% Scheduled Available Time during the Term of this
Agreement and any applicable Renewal Period, then InsynQ will issue a
credit to Remedy Corporation in an amount equal to 50% of one day of
InsynQ's subscription service fee for each increment of two hours of
such unavailable time in that month.
2.4 InsynQ will provide Remedy Corporation with its regular maintenance
downtime schedule seven days in advance.
2.5 Taxes Remedy Corporation shall be responsible for all sales taxes,
-----
use taxes and any other similar taxes and charges of any kind imposed
by any federal, state or local governmental entity on the transactions
contemplated by this Agreement, excluding only U.S. taxes based solely
upon InsynQ's income. When InsynQ has the legal obligation to pay or
collect such taxes the
appropriate amount shall be invoiced to and paid by Remedy Corporation
unless Remedy Corporation provides InsynQ with a valid tax exemption
certificate authorized by the appropriate taxing authority.
3. Support Services
3.1 Services. InsynQ will maintain a hosting facility where the InsynQ
--------
Servers and the Software are located. InsynQ will use commercially
reasonable efforts to provide performance analysis and tuning
services, hardware preventative maintenance, and regular back-up
services. With respect to the Software, InsynQ will be responsible for
installing and configuring the Software on the InsynQ Servers. InsynQ
will answer technical questions by Customer concerning application
functionality of the Software within the scope of this Schedule.
3.2 Updates. "Update" shall mean a release or version of the Software
-------
containing new features, functional enhancements, extensions, error
corrections or fixes, which are indicated by a change in the numeric
identifier for the Software in the digit either to the right or left
of the decimal. InsynQ will install into production Updates once they
have been certified by InsynQ as being production-worthy. InsynQ and
Customer will collaborate concerning the impact of Updates on
Customer's business processes. InsynQ will make a range of
implementation dates for Updates available to Customer, and Customer
agrees to implement within the InsynQ-specified timeframe.
3.3 Application Support
-------------------
(a) During the term of this Agreement, InsynQ will provide
support personnel that will be available during InsynQ
Business Days, and via the Communication Methods defined
below
(b) InsynQ Business Days Except for designated holidays and
--------------------
severity "Urgent" and "High" events as described below,
standard support hours are Monday through Friday (excluding
Holidays), 7:00 a.m. to 6:00 p.m. Pacific time
(c) Communication Methods. Customer can communicate with
---------------------
InsynQ's Service team in any or all of the following ways.
InsynQ will inform Customer in writing of any changes to
this information.
---------------------------------------------------------------
Phone: ▇-▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
---------------------------------------------------------------
US Mail ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
or ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FedEx:
---------------------------------------------------------------
(d) Application Issues InsynQ will provide support concerning
------------------
implementation and use of the hosted Software. InsynQ will
respond to reported application issues according to the
following protocols
-----------------------------------------------------------------------------------------------------------------------
Severity Definition Response Time Resolution Time
Level
-----------------------------------------------------------------------------------------------------------------------
Urgent Inability to access any Software that InsynQ will respond to Urgent priority Within four (4)
affects more than one Remedy Corporation calls within thirty (30) minutes during hours of contact
user or during implementation, a standard support hours, or within one (1) from a Remedy
request for a change to the Software's hour outside of standard support hours Corporation
technical environment necessary to Remedy (after receiving page) of being contacted client care
Corporation's configuration of the by a Remedy Corporation client care representative
Software representative with a phone call from an
agent or engineer qualified to resolve
the stated issue.
-----------------------------------------------------------------------------------------------------------------------
High Inability of any single Remedy Corporation InsynQ will respond to High priority calls Within twelve
user to access any Software not due to within one (1) hour of being contacted by (12) hours of
user's equipment. User may be referred to a Remedy Corporation client care contact from a
vendor of Software, if applicable. representative with a phone call from an Remedy
Resolution time will then be based on agent or engineer qualified to resolve Corporation
Software vendor's response time. the stated issue. client care
representative
-----------------------------------------------------------------------------------------------------------------------
Medium The Software response time or accessibility InsynQ will respond to Medium priority Within twenty-
is sub-optimal resulting in slow response calls within two (2) hours of being four (24) hours
times or restricted accessibility, if not contacted by a Remedy Corporation client of contact from
due to user's equipment care representative with a phone call a Remedy
from an agent or engineer qualified to Corporation
resolve the stated issue client care
representative
-----------------------------------------------------------------------------------------------------------------------
Low A request from a Remedy Corporation client InsynQ will respond to Low priority calls Within forty-
care representative for an enhancement or within four (4) hours of being contacted eight (48) hours
a change to the Software's technical by a Remedy Corporation client care of contact from a
environment representative with a phone call from an Remedy Corporation
agent or engineer qualified to resolve client care
the stated issue. representative
-----------------------------------------------------------------------------------------------------------------------
4. Software Access.
4.1 Ownership This license is not a sale and does not convey any rights of
---------
ownership in or to the Software. InsynQ is not granting Remedy
Corporation any rights whatsoever in the Software source code. All
right, title, and interest in the Software and any updates, upgrades
or modifications thereof, or in any ideas, know-how, and programs
developed by InsynQ or its licensors during the course of this
Agreement will remain the property of InsynQ or its licensors. All
right, title, and interest in Remedy Corporation's data will remain
the property of Remedy Corporation. Notwithstanding anything in this
Agreement to the contrary, Remedy Corporation shall own all right,
title and interest in any derivative work of the Software developed by
Remedy.
Corporation or its licensors and such derivative work will remain the
property of Remedy Corporation
4.2 Access. Subject to the terms and conditions of this Agreement, and for
------
the term of this Agreement, InsynQ grants Remedy Corporation non-
exclusive, non-transferable rights to use and access the Software for
Remedy Corporation's business purposes.
5. Security
InsynQ will provide the following Security
(a) Application Security - InsynQ will take all reasonable
measures to ensure that only Remedy Corporation authorized
users and authorized Remedy Corporation agents will be
provided access to the Software.
(b) Physical Security - InsynQ will act diligently to ensure
that only Remedy Corporation authorized users and Remedy
Corporation authorized agents are provided access to the
Software;
(c) InsynQ recognizes that its ability to maintain the foregoing
security levels is a material inducement for Remedy
Corporation to enter into this Agreement and any failure on
the part of InsynQ to maintain said security will be a
material breach of this Agreement upon which Remedy
Corporation may terminate this Agreement without prior
notice to InsynQ
6. Confidentiality
Each Party (a "Receiving Party") acknowledges that it and its employees or
agents may, in the course of performing the services or satisfying its
obligations hereunder, be exposed to or acquire information which is proprietary
to or confidential to the other Party (a "Disclosing Party") or its affiliated
companies or their clients. Any and all information of any form obtained by a
Receiving Party or its employees or agents in the performance of the services or
the satisfaction of such Party's obligations hereunder shall be deemed to be the
confidential and proprietary information of the Disclosing Party. The Receiving
Party agrees to hold such information in strict confidence and not to copy,
reproduce, sell, assign, license, market, transfer or otherwise dispose of, give
or disclose such information to third parties or to use such information for any
purposes whatsoever other than pursuant to the terms and conditions set forth in
this Agreement and to advise each of its employees and agents of their
obligations to keep such information confidential. All such confidential and
proprietary information described herein, in whatever form, is hereinafter
collectively referred to as "Confidential Information", provided that
Confidential Information shall exclude all information, which (a) is at the time
of disclosure, or thereafter becomes, a part of the public domain through no act
or omission of the other party, its employees or agents, or (b) was in the other
party's possession as shown by written records prior to the disclosure and had
not been obtained by such party either directly or indirectly from the
disclosing party; (c) is hereafter disclosed to the other party by a third party
who did not acquire the information directly or indirectly from the disclosing
party hereunder; (d) was independently developed by the other party without use
of the Confidential Information, as evidenced by written records, or (e) was
required by law to be disclosed, but only to the extent and for the purposes of
such required disclosure. The Receiving Party shall promptly advise to the
Disclosing Party immediately in the event the Receiving Party learns or has
reason to believe that any person who has had access to Confidential Information
has violated or intends to violate the terms of this Agreement and the Receiving
Party will at its expense cooperate with the Disclosing Party in seeking
injunctive or other equitable relief against any such person.
7. Term
This Agreement shall be effective on the Effective Date and shall continue in
full force and effect for a period of three (3) years from the Effective Date.
This Agreement shall automatically renew for successive one (1) year terms after
the initial three (3) year term. After year one (1), but not prior to end of
year one (1), either Party may terminate this Agreement by giving sixty (60)
calendar days written notice to the other Party
8. Infringement
InsynQ agrees to defend, indemnify and hold harmless Licensee from any loss,
liability and expense (including reasonable attorneys' fees) incurred by
Licensee as a result of any claim, demand or action against Licensee based on,
related to or arising out of any claim that the Intellectual Property provided
hereunder infringes any U.S. Patent, copyright, trade secret, or similar
proprietary right of a third party. If such claim has occurred, or in InsynQ's
judgment is likely to occur, Licensee agrees to allow InsynQ, at InsynQ's option
and expense, (a) to procure the right for Licensee to continue copying and using
the Intellectual Property in accordance with this Agreement, or (b) to replace
or modify the Intellectual Property in a functionally equivalent manner so that
it becomes noninfringing. In the event that the above remedies are not
reasonably available, InsynQ shall refund to Licensee an amount equal to the
depreciated license fee paid by Licensee (calculated on a straight line basis
over a five-year life), and Licensee shall have the option to terminate this
Agreement upon thirty (30) days notice to InsynQ.
9. Survival
Notwithstanding anything herein to the contrary, the provisions of Section 6 of
this Agreement shall survive any termination of this Agreement and shall
continue to bind Remedy Corporation and InsynQ for a period of three (3) years
from the Effective Date
10. Assignment
This Agreement shall be binding upon the Parties' respective successors and
permitted assigns. Neither Party may assign this Agreement or any of its rights
or obligations hereunder without the prior written consent of the other Party,
which consent, shall not be unreasonably delayed or withheld, and any such
attempted assignment shall be void. Notwithstanding anything herein to the
contrary, either Party may assign this Agreement, or any of it rights or
obligations hereunder, upon written notice to the other Party, to a current or
future parent company, a subsidiary or any of its affiliated companies, without
the consent of such other Party and either Party may assign this Agreement to
any entity which shall assume all or substantially all of the business of such
Party to which the subject matter of this Agreement pertains or by assignment by
operation of law or merger without the prior consent of the other party. Any
sale of the majority of the capital stock, merger, consolidation or
reorganization of a Party shall be deemed an assignment for purposes of this
Agreement. Notwithstanding anything in this Section 9 to the contrary, if either
---------
party determines to sell its capital stock on a national stock exchange or over-
the-counter market, then the transfer of such publicly traded stock, shall not
constitute an assignment for the purposes of this Agreement.
11. Complete Agreement
This Agreement and each Schedule and Exhibit attached hereto and incorporated
herein shall constitute the entire understanding of the Parties, which
understanding supersedes and merges all prior proposals, understandings and all
other Agreements, oral and written, between the Parties relating to the subject
matter hereof and may not be modified except in a writing executed by both
Parties.
12. Waiver
No waiver of any violation or nonperformance of this Agreement in one instance
will be deemed to be a waiver of any violation or nonperformance in any other
instance. All waivers must be in writing signed by the waiving party.
13. Construction
Nothing contained in this Agreement will be deemed to be made for the benefit of
any third party. All headings and titles are for the convenience of the parties
only.
14. Force Majeure
Neither Party shall be liable to the other for any delay or failure to perform
due to causes beyond its reasonable control. Performance times shall be
considered extended for a period of time equivalent to the time lost because of
any such delay.
15. Severability
In the event that any one or more of the provisions of this Agreement is invalid
or otherwise unenforceable, the enforceability of the remaining provisions
thereof shall be unimpaired.
16. Disclosures and Announcements
Both the timing and the content of all disclosure to third parties and public
announcements concerning the transactions provided for in this Agreement by
either party shall be subject to the approval of the other in all essential
respects, except that neither Party's approval shall be required as to any
statements and other information which the other Party may be required to make
pursuant to any rule or regulation of the Securities and Exchange Commission,
the New York Stock Exchange, Inc. or the Nasdaq Stock Market, Inc., or otherwise
required by law.
17. Descriptive Headings
All paragraph headings, titles and subtitles contained herein are inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
18. Counterparts
This Agreement may be executed in one or more counterparts, all of which, taken
together, shall constitute one and the same Agreement.
19. Interpretation
The Parties have jointly participated in the negotiation and drafting of this
Agreement. In the event of an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumptions or burdens of proof shall arise favoring any Party by virtue
of the authorship of any of the provisions of this Agreement.
20. Governing Law; Jurisdiction
The parties make this Agreement under, and for construction in accordance with
and for governing by, the laws of the State of California. Either party may
bring suit to enforce any provision of this Agreement or to obtain any remedy
with respect hereto. For this purpose both parties hereby expressly and
irrevocably consent to the jurisdiction of said courts.
21. Binding Effect
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto, their successors and assigns.
22. Amendments
No change or amendment to this Agreement shall be valid unless in writing and
signed by all the Parties.
It is understood that this Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which when taken together shall
constitute one and the same document.
23. Limitation of Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 EACH PARTY'S
------------------------------------------------------------------------------
TOTAL LIABILITY TO THE OTHER FOR BREACH OF CONTRACT AND FOR ALL OTHER CLAIMS
----------------------------------------------------------------------------
(INCLUDING, WITHOUT LIMITATION, TORT CLAIMS) ARISING OUT OF OR RELATED TO THIS
------------------------------------------------------------------------------
AGREEMENT SHALL NOT EXCEED FIFTY-THOUSAND DOLLARS ($50,000.00)
--------------------------------------------------------------
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL
--------------------------------------------------------------------------------
OR PUNITIVE LOSS, SPECIAL OR EXEMPLARY DAMAGES OR EXPENSES (INCLUDING LOST
--------------------------------------------------------------------------
PROFITS AND SAVINGS) PURSUANT TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN
---------------------------------------------------------------------------
ADVISED OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR
--------------------------------------------------------------------------
ANTICIPATED PROFITS, OR LOST BUSINESS.
--------------------------------------
Remedy Corporation Inc. InsynQ, Inc.
By: [ILLEGIBLE] By:
--------------------------------- --------------------------------
Title: Sr. Mgr. Worldwide Purchasing Title:
----------------------------- -----------------------------
Date: 5/12/00 Date:
------------------------------- ------------------------------
Exhibit A
Schedule of Fees
InsynQ shall provide the following applications in a hosted environment for the
subscription fees outlined below.
Web Based Training Hosting Services
Payment will be based on a base minimum of $500.00 per month. There is no
minimum or maximum number of students set. The base minimum of $500.00 per month
is the charge for students up to and including the first twenty (20) seats. The
cost per seat is then reduced based on the following scale, which reflects an
increasing number of users or seats. A seat is defined as one (1) student's
thirty (30) day duration per course.
Up to & including 20 Seats $500.00 per month base
21-250 Seats $25.00 per seat
251-500 Seats $20.00 per seat
501-1000 Seats $17.50 per seat
1001-1500 Seats $15.00 per seat
1501 Seats and up Negotiable
An installation charge of $500.00 shall be charged for each new course installed
and implemented.
Bulletin Board pricing:
$350.00 shall be charged for each individual Bulletin Board that needs to be
implemented, administered and maintained. Any Bulletin Board usage fees beyond
this administration charge are negotiable based on the scope of the project and
space required.
InsynQ shall invoice Remedy Corporation monthly for services rendered in the
previous month. Remedy Corporation agrees to provide InsynQ payment for six
months of subscription service fees in advance upon execution of this Agreement
and agrees that they will receive monthly invoices beginning in the seventh
month of service and monthly thereafter based upon the actual number subscribers
utilizing the service each month Remedy Corporation agrees to pay InsynQ for the
actual number of subscribers utilizing InsynQ's service each month and will
receive a supplemental invoice in the first six months when the number of user's
exceeds the initial agreed upon number of subscribers.
All invoices are due and payable in full within 30 days of date of invoice.
Hosting and access fees will begin to accrue on 5/12/2000 ("Effective Date"),
which is the date the network was made available for Remedy Corporation's use.
Fees will not accrue if Remedy Corporation is unable to access the InsynQ
servers solely because of non-performance by InsynQ. Any invoice not paid within
thirty (30) days of the due date will be deemed late, and will accrue late
charges as of the date due. Late charges shall be at a rate of 1% per month, or
the maximum rate allowed under law, whichever is lower, from the date such
payment was due until the date paid.
Remedy Corporation InsynQ, Inc.
By: [ILLEGIBLE] By:
--------------------------------- ---------------------------------
Title: Sr. Mgr. Worldwide Purchasing Title:
------------------------------ ------------------------------
Date: 5/12/00 Date:
------------------------------- -------------------------------
APPLICATION SERVICE PROVIDER
AGREEMENT
This non-exclusive Application Service Provider Agreement (the "Agreement") is
effective as of December 20, 1999 ("Effective Date") by and between the Remedy
Corporation ("Remedy"), with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and InSynq, Inc. ("ASP"), with its principal
place of business at ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
The following are included herein by reference as integral parts of this
Agreement:
. Exhibit A End User License - Minimum Terms and Conditions &
Export Restrictions
. Exhibit B Pricing, Discounts and Revenue Goals
. Exhibit C RAC Training
. Exhibit D Customer Support Services Agreement
RECITALS
WHEREAS, Remedy develops, markets and licenses proprietary adaptable enterprise
software applications and complete solutions for Customer Relationship
Management and Employee Productivity (the "Software", as defined hereinafter);
WHEREAS, ASP desires to obtain a license to use, market and distribute the
Software to End Users through the application service provider industry subject
to the restrictions set forth in this Agreement.
NOW THEREFORE, subject to the mutual promises and covenants herein, the parties
agree as follows:
1. Definitions
1.1 "Application Service Provider" means an entity, other than an Outhoster or
Outsourcer, which licenses the Software, allows third party End Users to
access that software in exchange for a monthly subscription fee, and
provides front-line support to those third party End Users.
1.2 "Documentation" shall mean any user manuals and other materials in any form
included in each Software commercial package. Documentation specifically
does not include any marketing materials for the Software.
1.3 "End User" shall mean that person (i) who acquires the use of the Software
for its own internal productive use, (ii) is granted a sublicense by ASP,
and (iii) has no right to sublicense or otherwise transfer the Software to
any third party.
1.4 "End User License Agreement" shall mean the form of ASP's standard license
agreement with End Users which incorporates the minimum terms and
conditions set forth in Exhibit A, "End User License - Minimum Terms and
Conditions & Export Restrictions".
1.5 "Outhoster" means an entity which hosts a third party's software, providing
the physical data storage and telecommunications facilities in order to
allow that third party to access the software.
1.6 "Outsourcer" means an entity which licenses and utilizes software in order
to provide services to third parties.
1.7 "Software" shall mean the Remedy software in object code form listed on
Exhibit B hereto, together with the related Documentation. Only those
Software applications specifically listed on Exhibit B are subject to this
Agreement, and Remedy expressly states that no other Remedy software
applications, including but not limited to the Remedy Action Request System
software product line, are offered or included under this Agreement.
1.8 "Territory" shall mean the geographic area known as the United States of
America.
2. Rights, License Grants and Restricted Use
2.1 Proprietary Rights. Remedy licenses the Software for use and therefore this
------------------
is not an agreement for the sale of the Software. Remedy retains title to,
and ownership of, all copyrights, trademarks, patent rights, trade secret
rights and other intellectual property rights with respect to the Software
and all copies and portions thereof. The Software is protected, among other
ways, by federal copyright law, international treaty and trade secret.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 1 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
2.2 License. Subject to the terms and conditions of this Agreement, Remedy
-------
grants to ASP a non-exclusive, nontransferable license to demonstrate,
market, distribute and sublicense the Software though Application Service
Provider channels to End Users in the Territory only as expressly permitted
by this Agreement.
2.3 End User License Agreement. ASP will ensure that each End User must agree
--------------------------
to and accept the terms of ASP's standard End User License Agreement. The
terms of such license will be drafted so as to apply to the Software, and
ASP will be the licensor. In addition, such license will include terms and
conditions substantially equivalent to those set forth in Exhibit A ("End
User License - Minimum Terms and Conditions & Export Restrictions").
2.4 Trademarks, Logo and Trade Names License. Remedy grants ASP a limited
----------------------------------------
license to use "Remedy(R)" and "Remedy Corporation(TM)" and any logo or
other trademarks or trade names adopted by Remedy to identify the Software.
ASP shall have the right to indicate to the public that it is an authorized
Application Service Provider of Remedy's Software and to advertise such
Software under the logo, trademarks, service marks, and trade names that
Remedy may adopt from time to time ("Remedy Trademarks"). ASP shall not
alter or remove any of the Remedy Trademarks applied to the Software. All
representations of Remedy Trademarks that ASP intends to use shall first be
submitted to Remedy for approval of design, color, and other details. ASP
agrees with respect to each of the Remedy Trademarks to include in each use
(such as an advertisement or brochure) the trademark symbol ((R)) or ((TM))
as directed by Remedy and the following statement: "Remedy and Remedy
Corporation, Remedy CRM Solutions, Remedy Customer Support, Remedy Quality
Management, Remedy@Work, Remedy Setup@Work, and Remedy Purchasing@Work are
registered or other trademarks of Remedy Corporation, Mountain View, CA".
Effective upon the termination or expiration of this Agreement, ASP shall
cease to use all Remedy Trademarks. A style guide is available upon
request.
2.5 Prohibitions. ASP will have no power or authority, express or implied, to
------------
make any commitments or incur any obligations on behalf of Remedy. ASP
hereby acknowledges and agrees that it shall have no right or authority to
appoint or authorize any third party to act as a distributor or to re-sell
the Software on a stand-alone basis or in any other manner.
2.6 Source Code. ASP and End Users will have no right to receive any source
-----------
code for the Software.
2.7 Non-Exclusive License. This is a non-exclusive Agreement. Remedy reserves
---------------------
the right to solicit orders from any sell directly to End Users, other
channel partners, other Application Service Providers, or other business
entities within the Territory. Notwithstanding the foregoing, any customer
information provided by ASP to Remedy under this Agreement shall be treated
as ASP's confidential information, and Remedy shall not initiate contact
with any of ASP's customers for the purpose of soliciting orders beyond
Remedy's normal marketing efforts.
3. Term
3.1 Initial Term and Renewal Term. The initial term of this Agreement shall
-----------------------------
extend for a period of two (2) years from the Effective Date set forth
above and shall automatically renew thereafter for one (1) additional one
(1) year term, unless earlier terminated as provided herein. The renewal of
this Agreement shall be subject to the parties reaching prior written
agreement on new revenue goals for each annual renewal term as provided for
in the Revenue Goals provision identified in Exhibit B. Pricing, Discounts
and Revenue Goals.
3.2 Expiration. Effective upon the expiration of this Agreement, the licenses
----------
granted to ASP by Remedy herein shall expire, and ASP shall cease to market
the Software, including all advertising and promotion using the Remedy
Trademarks. Notwithstanding the foregoing, ASP may continue to provide
access to the Software to ASP's current customers as of the date of
expirations, for a period of five (5) years from the date of expiration,
provided ASP complies with all its obligations under this Agreement,
including but not limited to its reporting and payment obligations. All
property of Remedy, including but not limited to Confidential Information,
photographs, demonstration units, literature and sales aids of any kind
shall remain the property of Remedy. Within thirty (30) days after
expiration of this Agreement, ASP shall ship all such items in its
possession to Remedy, at Remedy expense, except those items which are
required to support ASP's existing customers.
4. Warranties and Obligations
4.1 ASP Warranties. Except as expressly and unambiguously stated herein and as
--------------
a condition of ASP's license hereunder, ASP represents, warrants and agrees
that:
A. Modifications. Except as permitted on a screen display level through
-------------
the user configurable interface, ASP will not modify or create any
translation or derivative work based on the Software.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 2 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
B. Backup/Archive Copy(ies). ASP may make a reasonable number of backup
------------------------
copies of the Software for use on the computer for which Remedy has
issued a valid license key, and ASP may copy the Documentation for its
use only.
C. No Reverse Engineering. ASP shall not (and shall not allow any third
----------------------
party to): (a) decompile, disassemble, examine or otherwise reverse
engineer and reassemble or otherwise attempt to derive source code (or
the underlying ideas, algorithms, structure or organization) of the
Software by any means whatsoever, or (b) remove any Software
identification, copyright or other notices.
D. Reasonable Care. In addition to and without in any way limiting ASP's
---------------
other obligations hereunder, ASP will use the same or greater standard
of effort to protect Remedy's rights with respect to the Software as
it uses to protect any other third party's software or valuable
intellectual property rights, but in no event will the protection be
less than "reasonable" as interpreted by a person knowledgeable as to
protection of intellectual property rights, and ASP will provide
immediate written notice when any End User is in violation of its End
User License Agreement so as to protect Remedy's rights as a third
party software supplier.
4.2 ASP Obligations.
---------------
A. Promotion of Software. ASP shall use commercially diligent efforts to
market, promote, and distribute the Software through Application
Service Provider channels.
B. Advertising. ASP shall not make any representations or warranties with
respect to the Software that are inconsistent with the descriptions
and warranties contained in this Agreement or in the Documentation,
and shall not make any representations or warranties on behalf of
Remedy.
C. Personnel. ASP shall equip its sales personnel with adequate training,
marketing, sales and technical literature in order to effectively
market the Software. In addition, ASP agrees to maintain an
appropriate number of Remedy Authorized Consultants (RACs) on its
staff or contracted to ASP, but in no event less than one (1) fully-
trained RAC at any time, as more fully set forth in Exhibit C, RAC
Training. ASP will receive a 15% discount off the then-current price
for all Remedy training classes.
D. Support. ASP shall be solely responsible for providing Front Line
Support to End Users. For the purposes of this paragraph "Front Line
Support" shall mean direct contact with End Users, handling inquiries,
routine problem diagnosis and resolution by ASP support personnel
trained in the Remedy Product or, in the event a problem can not be
resolved, the obtaining of appropriate documentation of such inquiry
or problem for referral to Remedy.
E. 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 its End Users that access to the Software will be available.
F. Competing Products. ASP agrees not to market any internally developed
product in competition with the Software or proactively promote
competing products (for example, but not by way of limitation,
products by Peregrine, Onyx, Pivotal, Siebel, Vantive, Clarify or
Bendata's "Heat" product line) except with the prior written consent
of Remedy. In the event ASP does decide to market a competing third
party product, ASP will give Remedy ninety (90) days advance written
notice of such intent and Remedy shall have the right to immediately
terminate this Agreement.
G. Reporting and Audit. ASP will maintain an accurate and complete file
of all End Users to which ASP provides access to the Software,
including the name and address of each End User, the dates which each
End User had the right to use the Software, and evidence of assent by
each End User to the terms of ASP's license agreement. ASP will
provide such records to Remedy by the 25th of each month for billing
purposes. In addition, ASP shall issue a purchase order to Remedy upon
execution of this Agreement for billing purposes. Not more than
quarterly (upon Remedy request), ASP will permit an independent
auditor, under non-disclosure with ASP, to examine and audit such
records during reasonable business hours within thirty (30) days of
written request by Remedy. If such audit uncovers any deficiency in
payments, ASP shall promptly pay the monies due. If such audit
uncovers a deficiency in payments of more than 5%, ASP shall promptly
pay the monies due, shall bear the audit expenses and may be subject
to more frequent audits, at Remedy's discretion.
H. Compliance with Laws. ASP shall comply with all laws and regulations
applicable to its performance under this Agreement.
4.3 Remedy Warranties and Indemnification.
-------------------------------------
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 3 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
A. Software Warranty. Remedy warrants to ASP, for the period of ninety
(90) days from the date of delivery, that it will replace any
defective media on which the Software is provided and that the
Software, if not modified and if properly installed and used, will
substantially conform to the material specifications set forth in the
Documentation. Such warranties are for ASP's benefit only and are
nontransferable. Remedy does not warrant that the Software will
operate error free or uninterrupted, or will meet ASP's requirements.
Except for the express warranties stated in this section, the Software
and Documentation are each licensed "as is" and Remedy hereby
specifically excludes and disclaims all warranties, whether express,
implied or statutory, including, without limitation, the implied
warranties of merchantability, fitness for a particular purpose,
statutory noninfringement of third party intellectual property rights
and any warranty that may arise by reason of trade usage, custom or
course of dealing and you hereby expressly waive any and all such
warranties.
B. Exclusive Remedy. During the warranty period, ASP's exclusive remedy,
and Remedy's exclusive obligation and liability with respect to
Software that does not conform to the express warranties set forth in
Section shall be to use commercially reasonable efforts to correct or
to provide a workaround for a material nonconformance in the Software.
ASP understands that Remedy does not guarantee that any error or other
nonconformance can or will be corrected. You agree to cooperate with
Remedy and provide Remedy with all available information in written or
electronic form so as to enable Remedy to reproduce and attempt to
correct such nonconformance of the Software.
C. Infringement Indemnity. (a) Remedy will defend, at its own expense,
any legal action brought against ASP to the extent that it is based on
a claim that the Software used within the scope of this Agreement
infringes a United States patent, copyright or trade secret of a third
party, and Remedy will pay any final judgment against ASP in any such
action if attributable to any such claim or incurred by you through
settlement of such claim. However, such defense and payments are
subject to the conditions that ASP must: (i) notify Remedy promptly in
writing of such claim, (ii) permit Remedy to have sole control of the
defense, compromise or settlement of such claim, including any
appeals, and (iii) fully cooperate with Remedy in the defense or
settlement of such claim. Remedy will pay those reasonable costs,
damages or fees incurred by ASP in connection with such action or
claim.
(b) Should the Software become, or in Remedy's opinion be likely to
become, the subject of any such infringement claim, ASP shall permit
Remedy, at Remedy's option and expense, to (i) procure for ASP the
right to continue using the Software, or (ii) replace or modify the
Software so that it becomes noninfringing, or (iii) terminate the
right to use the Software, upon which termination ASP agrees to
promptly destroy all copies of the Software and certify the same to
Remedy, whereupon Remedy will refund ASP's license fee for the
Software as depreciated on a straight-line three (3) year basis.
(c) Remedy shall have no liability for any claim of patent, copyright
or trade secret infringement that is based on (i) the use of other
than the latest version of the Software, if such infringement could
have been avoided by the use of the latest version, (ii) the use or
combination of the Software with software, hardware or other materials
not recommended by Remedy, provided such infringement would not have
arisen but for such use or combination, or (iii) use of the Software
in a manner other than that for which it was designed or contemplated
as evidenced by Remedy's Documentation, or (iv) any unauthorized
modification by ASP or a third party of the Software, or (v) any
compliance with designs, plans or specifications furnished by ASP or
on ASP's behalf.
4.4 Remedy Obligations.
------------------
A. Training. During the term of this Agreement, Remedy shall provide RAC
training to ASP in accordance with the terms set forth in Exhibit C.
B. Maintenance and Support. Remedy shall provide Back Line Support to ASP
under the terms set forth in Exhibit D, specifically, Express Support
as defined in Section 2.1B therein.
C. Error Correction and Upgrades. Remedy shall provide Software
maintenance services, consisting of Software error correction and
Software upgrades, under the terms set forth in Exhibit D.
D. Compliance with Laws. Remedy shall comply with all laws and
regulations applicable to its performance under this Agreement.
E. Marketing. Remedy will make best efforts to help Insynq market its
services by providing access to the remedy user Group (RUG), posting
information about the Remedy-InSynq relationship on the Remedy web
site, providing appropriate access to Remedy's channels in the
territory, and notifying Insynq of any relevant marketing
opportunities such as trade shows, seminars or other events that may
benefit both Remedy and Insynq.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 4 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
5. Payment Terms
5.1 Pricing. Fees due Remedy for Software distributed by ASP are as set forth
-------
in Exhibit B, Pricing, Discounts and Revenue Goals.
5.2 Payment. Remedy will invoice ASP on a monthly basis for ASP's applicable
-------
monthly user fees and monthly server fees for the prior month. Payment
terms are net thirty (30) days from date of Remedy's invoice. A late fee
equal to one and one half (1 1/2) percent per month, or the maximum amount
allowed by law (whichever is less) shall apply to all outstanding amounts
due beyond the initial thirty day period. ASP and Remedy agree that if any
fees remain unpaid for a period of sixty (60) days or more from the date of
Remedy's invoice, then Remedy will have the option to disable the Software
and immediately terminate ASP's license hereunder.
5.3 U.S. Dollars. Payment will be made in U.S. dollars to Remedy's Corporate
------------
Address, Attention: Accounts Receivable.
5.4 F.O.B. All prices are F.O.B. Origin. The Software will be deemed accepted
------
upon shipment by Remedy.
5.5 Other Charges. In addition to any other sums payable hereunder, ASP shall
-------------
pay all charges, including without limitation, transportation charges,
shipping insurance or duties, and shall be responsible for any and all
taxes, import or export fees, excise taxes, and withholding taxes arising
from and support of the Software (excluding taxes based upon Remedy's
income).
6. Joint Press Releases. The parties may elect to release joint press release
statements upon the advance written consent of both parties. Remedy shall
have the right to list ASP as an authorized Remedy ASP in Remedy's
marketing materials. Both parties publicly acknowledge the channel
relationship governed by this Agreement in various forms of media, subject
to the joint press release requirements of this Agreement.
7. Confidentiality
7.1 Confidential Information. ASP and Remedy understand and acknowledge that by
------------------------
reason of their relationship with each other under this Agreement, they
will have access to certain information and materials concerning the other
party's business, plans, customers and technology that are confidential and
of substantial value to each party, which value would be impaired if such
information were disclosed to third parties. Both parties agree that they
shall not use in any way for its own account or the account of any third
party, nor disclose to any third party, any such confidential information
revealed to it by the other party other than to fulfill their express
obligations under this Agreement. Each party will take every reasonable
precaution to protect the confidentiality of such information.
7.2 Examples of Confidential Information. By way of example and not limitation,
------------------------------------
the terms of this Agreement, all customer lists, potential customer lists,
marketing and financial information, business plans, and technical
information, whether written or verbal, and all code, inventions,
algorithms, know how and ideas obtained from Remedy shall be deemed
confidential information of Remedy.
7.3 Exception. It is understood that each party's obligation not to disclose
---------
the other party's confidential information shall not apply in the instance
where such information is demonstrated by dated written documents:
A. to be in the public domain; or
B. to have been obtained or acquired in good faith from a third
party not under a similar obligation of confidence; or
C. to have been independently developed by the receiving party prior
to its receipt from the disclosing party; or
D. is required to be disclosed under the operation of law.
8. Termination
8.1 Termination for Convenience. Either party may terminate this Agreement for
---------------------------
convenience upon sixty (60) days written notice to the other party. In the
event Remedy terminates this Agreement in accordance with this provision,
the parties will endeavor to develop a suitable migration plan within such
sixty (60) day period. Such migration plan shall provide, at a minimum,
that ASP shall not market the Software to any additional customers, but may
continue to provide access to the Software to ASP's current customers as of
the date of termination for a period of five (5) years from the date of
termination, provided ASP complies with all its obligations under this
Agreement, including but not limited to its reporting and payment
obligations.
8.2 Termination for Cause. Upon material breach by a party of any provision
---------------------
without limitation of this Agreement, the non-breaching party will issue a
written notice to the breaching party and if the breach is not cured, or
the breaching party does
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 5 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
not submit a Plan for Cure acceptable to the non-breaching party within
thirty (30) days of receipt of the notice of breach, then the Agreement
shall automatically terminate thirty (30) days from receipt of the notice
of breach. Failure by the breaching party to continuously conform to any
mutually agreed upon written plan for cure will be a material breach.
Notwithstanding the foregoing, the following shall constitute a material
breach for which Remedy may issue a notice of immediate termination:
A. In the event ASP violates the license grant user restrictions in
Section 2 ("Rights, License Grants and Restricted Use") or any of
ASP's obligations in Section 4.2, or the Confidentiality provisions in
Section 7 ("Confidentiality") or the Reverse Engineering provisions in
Section 4.1(C) ("No Reverse Engineering"). Remedy has the right to
immediately terminate this Agreement, which does not relieve ASP from
its obligation to make payment in accordance with the terms of this
Agreement.
B. In the event ASP fails to comply with Section 5 ("Payment Terms"),
Remedy has the right to immediately terminate this Agreement, which
does not relieve ASP from its obligation to make payment in accordance
with the terms of this Agreement.
C. In the event ASP does not meet the Revenue Goals set forth in Exhibit
B, Remedy has the right to immediately terminate this Agreement, which
does not relieve ASP from its obligation to make payment in accordance
with the terms of this Agreement.
8.3 Termination for Insolvency. Either party may terminate this Agreement
--------------------------
immediately upon written notice in the event the other party shall (a)
become insolvent or file or have filed against it a petition for bankruptcy
(which is not dismissed within 30 days after it is filed), or (b) make an
assignment for the benefit of creditors, or (c) dissolve or cease to do
business in the ordinary course.
8.4 Effect of Termination. Effective upon the termination of this Agreement,
---------------------
the licenses granted to ASP by Remedy herein shall expire, and ASP shall
cease to market the Software, including all advertising and promotion using
the Remedy Trademarks, except in the case of a termination for convenience
as provided under section 8.1 above. All property of Remedy, including but
not limited to Confidential Information, photographs, demonstration units,
literature and sales aids of any kind shall remain the property of Remedy.
Within thirty (30) days after termination of this Agreement, ASP shall ship
all such items in its possession to Remedy, at Remedy expense, except those
items which are required to support ASP's existing customers.
9. Export Restrictions ASP will understand, stay current and comply with all
export laws, restrictions and regulations of the Department of Commerce or
other United States or foreign agency or authority.
10. Government Use
10.1 Identification. ASP agrees to identify to any branch, agency, prime or
--------------
subcontractor of the U. S. Government (USG) that the Software to be
provided to the USG government bundled with the ASP Solution are commercial
off the shelf (COTS) products subject to the Federal Acquisition
Streamlining Act (FASA; P.L. No. 103-355, October 1995) and Remedy offers
the same Software to both the public and private sectors. Remedy's pricing
is based on its published Price Lists (domestic or international, as
applicable) and therefore does not provide Standard Form 1412 or any other
cost or pricing data.
10.2 U.S. Government Legend. ASP agrees to clearly ▇▇▇▇ any Software delivered
----------------------
to any branch, agency, prime or subcontractor of the U. S. Government with
the legend set forth below:
RIGHTS IN COMMERCIAL COMPUTER SOFTWARE
Use, duplication, or disclosure by the Government is subject to
restrictions as set forth in FAR 12.211 and/or SFARS 227.72 and
any similar or successor rules or regulations.
Remedy Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
11. Limited Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
OTHERWISE, REMEDY WILL NOT BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE LICENSE FEES PAID TO
REMEDY HEREUNDER IN THE AGGREGATE DURING THE TWELVE MONTH PERIOD PRIOR TO
THE DATE THE CAUSE OF ACTION AROSE.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 6 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
12. Consequential Damages Waiver. IN NO CASE WILL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR
LOST PROFITS OR LOST DATA OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY OR SERVICES.
13. Independent Contractors
13.1 Sole Responsibility. The ASP is an independent contractor in the
-------------------
performance of each and every part of this Agreement and nothing contained
within the Agreement shall be construed to give either party the power to
direct and control the day-to-day activities of the other party. ASP is
solely responsible for its business practices and all of its employees and
agents and its labor costs and expenses arising in connection therewith.
13.2 No Control. Except as expressly provided herein, Remedy shall have no
----------
right to exercise any control whatsoever over the activities or operations
of ASP.
13.3 Not an Agent. Except as expressly provided herein, neither party shall
------------
represent itself as an agent or representative of the other.
14. Assignment. This Agreement is not transferable or assignable by ASP without
the prior written consent of Remedy.
15. General
15.1 Headings. Headings and captions are for convenience only and are not to be
--------
used in the interpretation of this Agreement.
15.2 Governing Law. This Agreement shall be governed by and construed under the
-------------
laws of the state of California and the United States without regard to
conflicts of laws provisions thereof and the United Nations Convention on
Contracts for the International Sale of Goods is expressly disclaimed. In
any action or proceeding to enforce rights under this Agreement, the
prevailing party shall be entitled to recover reasonable costs and
attorneys' fees.
15.3 No Waiver. Failure by either party to enforce any provision of this
---------
Agreement will not be deemed a waiver of future enforcement of that or any
other provision.
15.4 Partial Invalidity. If any portion of this Agreement is held to be invalid
------------------
by a court of competent jurisdiction, then the remaining provisions shall
nevertheless remain in full force and effect.
15.5 Notices. Notices under this Agreement shall be sufficient only if
-------
personally delivered, delivered by a major commercial rapid delivery
courier service or mailed by certified or registered mail, return receipt
requested to a party at its addresses first set forth herein or as amended
by notice pursuant to this Section 20.5. If not received sooner, notice by
mail shall be deemed received five (5) days after deposit in the U.S. or
international mails.
15.6 Survivability. The provisions of Sections 6, 7, 11, 12, 14, 15 and any
-------------
provision which provides for rights and remedies after termination, shall
survive the termination or expiration of this Agreement.
15.7 Entire Agreement. This Agreement sets forth the entire agreement and
----------------
understanding of the parties relating to the subject matter and supersedes
all prior agreements or representations, oral or written, regarding such
subject matter. No modification of or amendment to this Agreement, nor any
waiver of rights under this Agreement, shall be effective unless in writing
signed by authorized representatives of both parties.
REMEDY: ASP:
------------------------- -------------------------
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Signature: /s/ ▇.▇. ▇▇▇▇▇▇▇
------------------------- -------------------------
Name (print): ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name (print): ▇.▇. ▇▇▇▇▇▇▇
------------------------- -------------------------
Title: Director, Contracts Title: President and COO
------------------------- -------------------------
Date: 25 January 2000 Date: 12-23-99
------------------------- -------------------------
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 7 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
Exhibit A
END USER LICENSE
MINIMUM TERMS AND CONDITIONS & EXPORT RESTRICTIONS
ASP shall sublicense the Software to End Users under its standard End User
License Agreement. ASP is not authorized to grant any greater set of rights than
has been granted to ASP by Remedy under this Agreement. In no event shall such
sublicensing include terms and conditions that do not provide at least the
minimum terms and conditions below:
Licensor grants Licensee a nonexclusive personal license to use the software
under the terms stated in this Agreement.
Licensee may not transfer, assign or sublicense its rights under this Agreement
without the prior written consent of Remedy. Any other attempted sublicense,
assignment or transfer is void.
Licensee agrees not to alter, reverse engineer or disassemble the software.
Licensee will not copy the software except (i) as necessary to read the software
from the media into the memory of a computer solely for the purpose of executing
it on a single machine (whether a stand alone computer or a workstation
component of a multi-terminal system), or (ii) to create an archival copy.
Licensee agrees that any such copies of the software shall contain the same
proprietary notices which appear on and in the software. Copying, other than
that described in this provision, duplicating, selling or otherwise distributing
the software is expressly forbidden.
Except as stated above, this Agreement does not grant Licensee any right in or
to intellectual property with respect to the software.
Title to and ownership of the software and any reproduction thereof shall remain
in Licensor and its suppliers.
Licensee is hereby notified that Remedy Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Remedy") is a third-party beneficiary to this Agreement
to the extent that this Agreement contains provisions which relate to Licensee's
use of the software licensed hereby. Such provisions are made expressly for the
benefit of Remedy and are enforceable by Remedy in addition to Licensor.
Export. In any export or re-export of the Software, ASP will comply with and
shall instruct its Resellers and End Users to comply with all export laws,
restrictions and regulations of the Department of Commerce or other United
States or foreign agency or authority. ASP shall not and shall not allow the
export or re-export of any of Remedy's Confidential Information or Software or
copies of any product thereof in violation of any such restrictions, laws or
regulations. ASP shall obtain any necessary licenses and/or exemptions with
respect to the export from the U.S. of all material or items deliverable by
Remedy and shall demonstrate to Remedy compliance with all applicable laws and
regulations prior to delivery thereof by Remedy. ASP hereby agrees to indemnify
Remedy (its employees, officers, directors and agents) against any liability
loss, damage, or cost including reasonable attorney's fees, arising out of or in
connection with any export in contravention of the applicable export laws.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 8 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
Exhibit B
Pricing, Discounts And Revenue Goals
1. Pricing. Remedy offers the following pricing to ASP under the terms of the
Agreement:
A. CRM Pricing (10 Agent Minimum)
Product Monthly User Fee
---------------------------------------------------
Remedy Customer Support $261.00
Remedy Quality Management $117.00
B. EWA Pricing (100 User Minimum)
Product Monthly User Fee
---------------------------------------------------
Remedy Purchasing @ Work $ 34.50
Remedy Setup @ Work $ 28.00
2. Discounts. At the end of the first year of this Agreement, and on each
subsequent anniversary date, discounts will be set for the following year
based on the total annual revenue received by Remedy from ASP as set forth
below:
Net Annual Revenue Discount Level
---------------------------------------
$100K - $150K 15%
$151K - $500K 25%
$501K - $750K 30%
$751K and over 35%
3. The pricing set forth above is offered by Remedy on the assumption that ASP
will reach 2,000 End Users by the end of calendar year 2000, and 15,000 End
Users by the end of calendar year 2001. As an express material condition of
this Agreement, ASP agrees that the following revenue goals apply to ASP
hereunder:
March, 2001 monthly revenues payable to Remedy: $117,000.00
March, 2002 monthly revenues payable to Remedy: $225,000.00
In the event of a failure by ASP to attain any revenue goal, ASP shall be
liable to Remedy for, and shall pay to Remedy on demand, as liquidated
damages and not as a penalty, the difference between the revenue goals set
forth above and actual revenues payable to Remedy for that period,
multiplied by a factor of 8. In the event ASP fails to meet its revenue
goals for both December, 2000 and December, 2001, Remedy shall have the
right to terminate this Agreement for convenience.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 9 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq. Inc.
Exhibit C
Remedy Authorized Consultant (RAC) Training
ASP agrees to maintain an appropriate number of Remedy Authorized Consultants
(RACs) on its staff or contracted to ASP, but in no event less one (1)
fully-trained RAC at any time. This Exhibit sets forth the training requirements
for RACs and the currently available Remedy courses through RAC University, a
Remedy Partner Program.
RAC University offers four different levels of certification:
1) AR System Implementation Specialist: entry-level training for Action Request
System/R/ (AR System) application development.
2) RAC: our standard certification, which requires AR System Implementation
Specialist certification plus six to eight months of AR System development
experience.
3) RAC Market Specialist: RAC certification plus further training in a selected
strategic market area.
4) RAC Enterprise Specialist: RAC certification plus further training in all
three strategic market areas.
RAC Course Titles, Days, Fees (please note the fees per class will be in
accordance with Remedy's then-current training fees when classes are scheduled,
less a 15% partner education discount)
AR SYSTEM IMPLEMENTATION SPECIALIST
Administering the AR System (4 days)
AR System Advanced Topics (5 days)
Distributed Server Option (1 day)
Performance Tuning and Troubleshooting (5 days)
AR Web (3 days) PLUS one of the following:
HelpDesk (2 days)
Asset Management (2 days)
Change Management (2 days)
(**additional elective courses will be offered in the future)
RAC
After 6-8 month practical experience, an engineer must take:
RAC Engineering Methods (5 days)
RAC Market Specialist and RAC Enterprise Specialist
Upon completion of the RAC program, a RAC may take additional
tracks pertaining to ITSM, CRM, or EWA and become a RAC Market Specialist.
Completion of all 3 tracks earns the title of RAC Enterprise Specialist.
ITSM Track
Asset Management (1 day)
Change Management (2 days)
HelpDesk (2 days)
CRM Track
Remedy Customer Support Application Training (1 day)
Adapting Remedy Customer Support Application (2 days)
CRM Engineering Methods (5 days)
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 10 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
Exhibit D
Customer Support Services Agreement
This Exhibit D defines the level and type of Software Support and Maintenance
Services to be provided to ASP and its End Users by ASP and Remedy under this
Agreement.
1. Support by ASP
ASP shall provide front-line support to End Users of the Software. ASP
shall clearly state to End Users that End User support is provided by
ASP for the Software.
2. Support Definitions:
2.1 "Error" means a nonconformity in the Software which causes the
Software not to operate substantially in accordance with the
Documentation.
2.2 "Software Maintenance" shall mean the issuance of patches to the
Software Products on an as-needed basis (determined solely by Remedy)
in order to correct "bugs".
2.3 "Software Support" shall mean responding with four (4) hours to a
reasonable number of specific technical questions from ASP posed via
telephone, facsimile or electronic mail during Remedy's normal
business hours.
2.4 "Update" shall mean a Release of the Software or new Documentation
designated to correct any errors or to improve performance or
functionality.
3. ASP Software Support and Maintenance (Internal Use License)
3.1 Scope of Support to ASP: Upon payment of the required Annual ASP
-----------------------
Maintenance Fee, Remedy will provide Software Support and Maintenance
services for ASP's Internal Use software only. Remedy shall provide
technical support to ASP designated engineers or technical
representatives for the purpose of assisting ASP with its use of the
Software. Remedy agrees to expend commercially reasonable efforts to
ensure that the Software operates substantially in accordance with the
Documentation. If "trouble" calls are received from ASP, Remedy will
use reasonable efforts to correct any "bugs" or other errors reported
by providing an appropriate "patch", "fix" or "workaround," or by
periodically issuing a new corrective Release of such Licensed
Software Products. The ASP will be provided software Updates for ASP's
Internal Use License directly from Remedy provided ASP's Annual
Maintenance Fees are current.
3.2 Support Hours: In performing the Support services identified in 3.1
-------------
above, Remedy shall support ASP during the business hours of 6:00 AM
to 5:00 PM California time, Monday through Friday, exclusive of Remedy
holidays. Upon request from ASP, Remedy can specify the Remedy
holidays for the current calendar year.
3.3 Travel Expenses: In the event that travel expenses are incurred by
---------------
Remedy in the course of providing Support services, such travel
expenses shall be payable by ASP upon submission of Remedy invoices to
ASP. Travel expense invoices shall have payment terms of net thirty
(30) days.
4. Software Support and Maintenance Plans Available to End Users of ASP's:
A) ASP shall provide front line Software Support services to End
Users. Front line support shall be defined as ASP exhausting all
its available and reasonable resources to address the End Users
issue prior to escalating the issue to Remedy. In the event ASP's
information ("metrics") provided to Remedy exceeds the average
metrics for Remedy partners as determined by Remedy, ASP agrees
to implement those practices suggested by Remedy to improve ASP's
metrics.
B) ASP shall determine what type of front line support to offer End
Users. However, unless previously agreed to in writing between
ASP and Remedy, Remedy's obligation to provide backline support
to ASP shall not extend beyond Remedy's standard software support
hours of weekdays from 6:00 AM to 5:00 PM, California time,
excluding Remedy holidays. If ASP sells 24x7 support to an End
User, ASP must identify clearly in writing to the End User that
only the ASP provides 24x7 coverage and that Remedy does not have
the same obligation unless otherwise agreed to as stated above.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 11 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.
C) Upon receipt by Remedy of the Annual ASP Maintenance Fee, Remedy
shall provide Software Maintenance services as defined in Section
2.2 of this Exhibit and back line support to ASP.
1) There are three (3) types of issues that may be escalated to
Remedy as part of backline support. These issues are (i)
specific technical questions where the answer cannot be
addressed by the ASP after the ASP has exhausted all its
available and reasonable resources, including Remedy's
manuals and on-line resources; (ii) product enhancements
suggested by the End User; and (iii) product
defects/problems. As additional clarification:
a) Specific technical questions cover the class of issues
that are generally not related to a product defect or
enhancement request.
b) Remedy may consider product enhancements submitted by
the End User. In the event the product enhancement is
original, Remedy shall create an enhancement request.
Whether the product enhancement is original or not,
Remedy shall provide ASP with the enhancement request
number for future reference.
c) When submitting a product defect/problem, ASP shall
submit a detailed explanation of the problem with steps
to reproduce the problem. In addition, ASP shall
provide relevant schema definitions, data from the
problem schema, complete system configuration, details
on all testing that has been conducted by the ASP and
appropriate error and log files that include details
that highlight the problem. ASP shall have reproduced
the product defect prior to submitting it to Remedy.
5. Support Availability:
With Respect to Software Support and Maintenance services provided to
ASP pursuant to this Agreement, Remedy agrees to offer maintenance and support
for the Software and for the prior two (2) Releases preceding the then current
Release of the Software during the term of this Agreement.
--------------------------------------------------------------------------------
Draft Std. U.S. ASP Agreement (9911) Page 12 of 12 Remedy Corporation
Date: December 20, 1999 CONFIDENTIAL InSynq, Inc.