EXHIBIT 10.27
MASTER LICENSING AGREEMENT
By and between
Legacy Solutions,
and
INSYNQ, Inc.
This Agreement is entered into as of this 1/st/ day of March, 2000 (the
"Effective Date") by and between Legacy Solutions ("LEGACY 2000, Inc. dba Legacy
Solutions") a North Dakota 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, LEGACY SOLUTIONS 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 LEGACY SOLUTIONS 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 LEGACY SOLUTIONS, that is appointed by LEGACY
SOLUTIONS 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 "LEGACY SOLUTIONS Products" means the products developed, manufactured and
distributed by LEGACY SOLUTIONS 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
LEGACY SOLUTIONS from time to time.
2. LICENSE GRANTS.
2.1 License. Subject to the terms and conditions of this Agreement, INSYNQ
hereby grants LEGACY SOLUTIONS a non-exclusive, non-transferable, worldwide
license to promote, market, distribute and sublicense application hosting
services, bundled or unbundled with LEGACY SOLUTIONS products, to End Users.
2.2 Distribution.
LEGACY SOLUTIONS may distribute the application hosting services bundled or
unbundled with applications hosted by INSYNQ or developed by LEGACY SOLUTIONS,
through Licensee provided that prior to providing the services to any Licensee
LEGACY SOLUTIONS 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 LEGACY SOLUTIONS uses for its other products. LEGACY SOLUTIONS
will provide INSYNQ with copies of the Distribution Agreements upon request.
2.3 Documentation. In addition to the rights granted to LEGACY SOLUTIONS to
reproduce the Services pursuant to Section 2.1 above, and subject to the terms
and conditions of this Agreement, INSYNQ hereby grants to LEGACY SOLUTIONS 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 LEGACY SOLUTIONS any right or license, express or implied Documentation or
Trademarks.
3. LEGACY SOLUTIONS OBLIGATIONS.
3.1 Promotion of Product. LEGACY SOLUTIONS shall use reasonable commercial
efforts to market, promote and distribute INSYNQ'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. LEGACY SOLUTIONS 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. LEGACY SOLUTIONS shall equip all sales personnel who will
represent INSYNQ's products and/or services with adequate training to do so
accurately.
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. LEGACY SOLUTIONS 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 LEGACY SOLUTIONS shall prominently display LEGACY SOLUTIONS'
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, LEGACY SOLUTIONS shall ensure that all
questions regarding the use or operation of the Services distributed hereunder
are directed to and answered by LEGACY SOLUTIONS. LEGACY SOLUTIONS shall not
represent to any third party that INSYNQ is available to answer any customer
questions directly, although INSYNQ shall be available to employees of LEGACY
SOLUTIONS to assist with problem escalation and resolution in the event that
LEGACY SOLUTIONS identifies that the issue is related to INSYNQ's network or
profile services. INSYNQ maintains that the end user customer should utilize the
customer support structure that is in place by LEGACY SOLUTIONS
3.6 Compliance with Law. LEGACY SOLUTIONS shall comply with all laws and
regulations applicable to LEGACY SOLUTIONS' performance and the marketing and
distribution of the Services and
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Products hereunder. Without limiting the generality of the foregoing, LEGACY
SOLUTIONS (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 LEGACY SOLUTIONS 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. LEGACY SOLUTIONS shall pay INSYNQ a fee of $75 per subscriber of
their application as the said subscribers contract to utilize Legacy Solution's
applications in a hosted environment.
4.2 Taxes. Amounts payable to INSYNQ under this Agreement may include products
that are related to taxes for 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, LEGACY SOLUTIONS 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.
4.3 Payment in United States Currency. All payments shall be made in United
States Dollars, free of any withholding tax and of any currency control or other
restrictions to INSYNQ at the address indicated by INSYNQ to LEGACY SOLUTIONS.
4.4 Payment Schedule. All payments for INSYNQ services shall be due a payable
within 5 days of LEGACY SOLUTIONS receipt of payment from the customer, but no
later than 60 days from the original date of invoice by INSYNQ.
4.5 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. INSYNQ warrants that it shall maintain the following service
levels with respect to its End User customers. INSYNQ'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 LEGACY SOLUTIONS
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, LEGACY SOLUTIONS 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 LEGACY SOLUTIONS sales team free
of charge at LEGACY SOLUTIONS 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.
General. INSYNQ shall provide maintenance and technical support to LEGACY
SOLUTIONS. All
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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
every effort to address all problems and issues in a timely manner.
Maximum response times shall be determined based on the customer's business
needs. INSYNQ and Legacy will mutually determine `Critical' periods of customer
operations. This will represent approximately 25 percent of the year. All other
timeframes will be considered non-critical periods.
During `Critical' periods, INSYNQ shall make best efforts to respond to a
customer's "system down" within 60 minutes from the time that INSYNQ is aware of
such "system down", if notification is made during regular business hours.
If notification during a `Critical' period is outside of regular business hours,
INSYNQ will respond no later than the next business morning.
During non-critical periods, INSYNQ will make best efforts to respond to a
customer's "system down" within two hours from the time that INSYNQ is aware of
such "system down", if notification is made during regular business hours.
If notification during a non-Critical period is outside of regular business
hours, INSYNQ will respond no later than the next business afternoon.
INSYNQ's regular business hours are 7:00 am through 6:00 pm.
6. GENERAL TERMS
6.1 Trademark Use.
(a) Use. During the term of this Agreement, LEGACY SOLUTIONS 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 LEGACY SOLUTIONS' marketing,
advertising, promotion, and distribution of the Product and/or Services. LEGACY
SOLUTIONS' use of the Trademarks shall not create any right, title or interest
therein. LEGACY SOLUTIONS 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 LEGACY SOLUTIONS, 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 reputation occurs, as well as at the
expiration or termination of this Agreement, without any separate payment or
other consideration of any kind to LEGACY SOLUTIONS and LEGACY SOLUTIONS agrees
to take all such actions necessary to effect such vesting. LEGACY SOLUTIONS
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, LEGACY SOLUTIONS
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 identified in Section 6.l.a of
this agreement in any jurisdiction.
6.2 Protection of Rights. LEGACY SOLUTIONS 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,
1NSYNQ's copyright, patent, trade secret, and trademark rights ("Proprietary
Rights"), and to cooperate without charge in INSYNQ's efforts to protect its
Proprietary Rights. LEGACY SOLUTIONS shall promptly notify INSYNQ of any known
or suspected infringements of INSYNQ's Proprietary Rights that come to LEGACY
SOLUTIONS' 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
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monetary recoveries received therefrom. LEGACY SOLUTIONS shall not take any
action to jeopardize, limit or interfere with INSYNQ's ownership of and rights
in the Services.
7. CONFIDENTIALITY.
7.1 Confidential Information. "Confidential Information" means (i) the terms
and conditions of this Agreement, and (ii) any and all other information
disclosed by one party to the other which is marked "confidential" or
"proprietary", including oral information which is designated confidential at
the time of disclosure, provided that it is reduced to a written summary marked
"confidential" which is supplied to the other party within thirty (30) days of
the oral disclosure. Subject to the provisions of Section 7.2, all information
regarding the services, including without limitation, all information with
respect to the use, installation and operation of the services, whether received
by LEGACY SOLUTIONS from INSYNQ or developed by LEGACY SOLUTIONS, 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.
(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 LEGACY SOLUTIONS 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. INSYNQ warrants that for a period of ninety (90) days
after delivery of the Services to LEGACY SOLUTIONS, 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 LEGACY SOLUTIONS and LEGACY SOLUTIONS shall have no authority to
extend such warranty to any third party. INSYNQ's sole obligation and liability,
and LEGACY SOLUTIONS' 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 LEGACY SOLUTIONS the purchase price for
the defective Product.
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8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES IS LICENSED
TO LEGACY SOLUTIONS "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 LEGACY
SOLUTIONS' 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 LEGACY SOLUTIONS
harmless from any liability or expense paid to third parties (including without
limitation reasonable attorneys' fees) incurred by LEGACY SOLUTIONS as a result
of any judgment or adjudication against LEGACY SOLUTIONS 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 LEGACY SOLUTIONS 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. LEGACY SOLUTIONS 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 LEGACY SOLUTIONS a license to use the infringing
materials; or (z) accept the return of the Services and Documentation and return
to LEGACY SOLUTIONS all unamortized portions of amounts actually received from
LEGACY SOLUTIONS 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 LEGACY SOLUTIONS by
INSYNQ, unless INSYNQ authorized such combination in advance in writing.
9.3 By LEGACY SOLUTIONS. Except as set forth in Section 9.1, LEGACY SOLUTIONS
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 LEGACY SOLUTIONS, its Licensings, or LEGACY SOLUTIONS' or
its Licensing's representatives and agents, including without limitation, any
material misrepresentation, warranty or guarantee made by LEGACY SOLUTIONS 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 LEGACY
SOLUTIONS' Products infringes any United States copyright, patent (issued as of
the Effective Date), trademark or trade secret of any third party.
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10. LIMITATION OF LIABILITY.
IN NO EVENT WILL INSYNQ'S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS
AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES OR DOCUMENTATION EXCEED THE
AMOUNT OF FEES ACTUALLY PAID BY LEGACY SOLUTIONS TO INSYNQ HEREUNDER. IN NO
EVENT SHALL INSYNQ HAVE ANY LIABILITY TO LEGACY SOLUTIONS 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 (1) year period, unless either party notifies the other in
writing a minimum of sixty (60) days prior to the termination date as set forth
herein. Either party has the right to terminate the agreement upon ninety (90)
days written notice.
11.2 Termination for Breach or Insolvency. Each party shall have the right to
terminate this Agreement on written notice if (a) the other party ceases to do
business in the ordinary course or becomes insolvent (i.e., unable to pay its
debts in the ordinary course as they come due), or is declared bankrupt, or is
the subject of any liquidation or insolvency proceeding which is not dismissed
within ninety (90) days, or makes any assignment for the benefit of creditors,
or (b) the other party breaches any material term of this Agreement and fails to
cure such breach within thirty (30) days after written notice thereof.
11.3 Effect of Termination. Upon the expiration or termination of this
Agreement:
(a) LEGACY SOLUTIONS shall immediately pay to INSYNQ all License Fees and any
other amounts due to INSYNQ hereunder as previously billed;
(b) LEGACY SOLUTIONS 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 LEGACY SOLUTIONS
has not paid INSYNQ a License Fee; (ii) erase any and all of the foregoing from
all computer memories and storage devices within LEGACY SOLUTIONS' 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) Notwithstanding the foregoing, upon the expiration or termination of this
Agreement for any reason other than LEGACY SOLUTIONS' breach, LEGACY SOLUTIONS
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 LEGACY SOLUTIONS pays INSYNQ License Fees on all copies of
the Services so distributed. All applicable provisions of this Agreement shall
continue in force solely for the purpose of permitting LEGACY SOLUTIONS and its
Licensings to distribute such existing inventory.
(d) INSYNQ agrees that it will offer maintenance and support services to LEGACY
SOLUTIONS' 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 LEGACY SOLUTIONS or Licensees.
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11.4 No Liability. In the event of termination by either party in accordance
with any of the provisions of this Agreement, neither party shall be liable to
the other because of such termination for compensation, reimbursement or damages
on account of the loss of prospective profits or anticipated sales or on account
of expenditures, inventory, investments, leases or commitments in connection
with the business or goodwill of INSYNQ or LEGACY SOLUTIONS. Termination shall
not, however, relieve either party of obligations occurred prior to such
termination.
12. MISCELLANEOUS.
12.1 Assignment. This Agreement will be binding upon and inure to the benefit
of the parties hereto and their permitted successors and assigns. Neither party
may assign or otherwise transfer this Agreement or its rights or obligations
hereunder without the other party's prior written consent, which consent may not
be unreasonably withheld. Any assignment or other transfer without the other
party's prior written consent will be null and void. However, either party may
assign this Agreement without the other party's consent to a third party to
which substantially all of the assigning party's assets are sold, assigned or
otherwise transferred, provided that such third party is not a trustee in a
bankruptcy or a receiver appointed for the benefit of the assigning party's
creditors.
12.2 Waiver and Amendment. No modification, amendment or waiver of any provision
of this Agreement shall be effective unless in writing and signed by the party
to be charged. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement shall operate as a waiver of any such
right, power or remedy.
12.3 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by the
laws of the State of Washington. For any disputes arising out of this Agreement,
the parties consent to the personal and exclusive jurisdiction of, and venue in,
the state or federal courts within Tacoma, WA.
12.4 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing. Notice shall be considered delivered and
effective when (a) personally delivered; (b) the day following transmission if
sent by confirmed facsimile; or (c) three (3) days after posting when sent by
certified or registered US Mail or by registered private carrier (e.g., DHL,
Federal Express, etc.). Notice shall be sent to the parties at the addresses set
forth on the first page of this Agreement or at such other address as shall be
given by either party to the other in writing.
12.5 Independent Contractors. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be an
employee, agent, partner or legal representative of the other for any purpose
and shall not have any right, power or authority to create any obligation or
responsibility on behalf of the other.
12.6 Severability. If any provision of this Agreement shall be held by a court
of competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
12.7 Complete Understanding. This Agreement, including all Exhibits attached
hereto and hereby incorporated by reference, constitutes the final, complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes any prior or contemporaneous agreement, either written or
oral.
12.8 Further Assurances. Each party agrees to do and perform all such further
acts and things and shall execute and deliver such other agreements,
certificates, instruments and documents necessary or that the other party may
deem advisable in order to carry out the intent and accomplish the purposes of
this Agreement and to evidence, perfect or otherwise confirm the other party's
rights hereunder.
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IN WITNESS WHEREOF, the duly authorized representatives of each of the parties
hereto have executed this Agreement as of the day and year first written above.
INSYNQ, INC. LEGACY SOLUTIONS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ 3/24/00 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ 3/20/00
Name: ▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President/COO Title: Vice President
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EXHIBIT A
INSYNQ'S SERVICES
INSYNQ licenses LEGACY SOLUTIONS 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 Legacy Solutions to Legacy Solutions' end-user customers
including, but not limited to, Legacy Solutions applications, Microsoft Office
Suite, Sun's StarOffice software, GoldMine! Act, and all other associated
applications currently being hosted by INSYNQ.
INSYNQ will work with Legacy Solutions in providing them with an updated
application list no less than one time per quarter.
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EXHIBIT B
Legacy Solutions Applications
INSYNQ agrees to host all pre-tested Legacy Solutions applications (as agreed to
and adequately licensed by the original application vendor). Additional products
will be hosted by INSYNQ as requested by Legacy Solutions 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 Legacy Solutions
personnel.
INSYNQ warrants that under no circumstances shall INSYNQ or associated partners
or representatives attempt to resell Legacy Solutions' applications without
express written permission and that all inquiries associated with the Legacy
Solutions applications shall be referred directly to Legacy Solutions.
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