EXHIBIT 10.38
APPLICATION SERVICE PROVIDER AGREEMENT
This Agreement made as of this 21/st/ day of August, 2000, by and between Corel
Corporation ("COREL") having its principal place of business at 1600 Carling
Avenue, Ottawa, Ontario, K1Z 8R7 (Tel: 613-728-8200 Fax: 613-728-9790) and
InsynQ, Inc. ("ASP"), having its principal place of business at 1101 Broadway
Plaza, Tacorna, WA 98402 (Tel: 916-797-7334, Fax: 916-784-3855).
BACKGROUND:
1. COREL desires to secure distribution of certain of its software; and
2. ASP desires to obtain certain rights to allow its customers to access
software from COREL.
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein the parties agree as follows:
1. INTERPRETATION
1.01 Definitions. As used herein:
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(i) "Agreement" means this agreement and any schedules attached hereto.
(ii) "ASP Program" means the process by which Customer accesses the ASP
System to obtain use of the Software provided that such Customer has
entered into a services agreement with ASP and remains in good
standing under such agreement.
(iii) "ASP Software Package" means the software package offered by ASP to
Customers which permits use of the Software on the ASP System.
(iv) "ASP System" means the enabling technology on ASP's local area
network based server located at 1101 Broadway Plaza, Tacoma, WA
98402 and any other location within the Territory and used by ASP to
permit Customers who have acquired a ASP Software Package through
the ASP Program to access and use the Software, only using a high
speed transmission connection, or other public or private access
network or communication mediums.
(v) "COREL Marks" means the trade names and trade-marks related to the
Software.
(vi) "Customer" means individuals or entities who are customers in good
standing with ASP and who purchase an ASP Software Package through
the ASP Program from ASP or Reseller.
(vii) "End User License Agreement" means COREL's end user license as
modified by COREL from time to time.
(viii) "Reseller" means any electronic reseller authorized by ASP to
distribute the Software to Customer.
(ix) "Services" means those services as described in Schedule "C" hereto.
(x) "Software" means the object code version in any form or format of
any of the COREL software products listed in Schedule "B".
(xi) "Software Prices" means the amount payable by ASP pursuant to
Section 7 of this Agreement and according to the pricing schedule
set out in schedule "B".
(xii) "Territory" means worldwide subject to Section 5.04.
(xiii) "User Profile" means a single registered Customer with access to the
ASP System.
1.02 Schedules. The following Schedules are appended to and form part of this
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Agreement:
Schedule "A" " Guidelines for Using Corel Trade-Marks
and Guidelines for using Corel Logos
Schedule "B" " Software and Software Prices
Schedule "C" " Reports and Services
2. LICENSE
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2.01 License and Appointment. Subject to the terms and conditions hereof, COREL
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hereby grants ASP and ASP accepts from COREL:
2.01.1 Software Access. a non-exclusive right to be a software access
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provider and to allow Customers to use the Software only as a
part of the ASP Software Package and only through the ASP System
to Customers participating under the ASP Program within the
Territory; and
2.01.2 Sublicense. a non-exclusive right to sublicense to Reseller the
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right to be a software access provider and to allow Customers to
use the Software only as a part of the ASP Software Package and
only through the ASP System and only to Customers participating
under the ASP Program within the Territory.
ASP agrees not to distribute the Software other than in computer readable
form as part of an ASP Software Package under the ASP Program within the
Territory.
2.02 Intellectual Property. ASP acknowledges that COREL is the owner of all
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intellectual property, including, without limitation, patents and
copyright, relating to the Software and the COREL Marks. ASP shall have no
rights in respect of such intellectual property, patents or copyright
other than to act as a software access provider to deliver the Software
subject to the End User License Agreements.
2.03 Master. To enable ASP to exercise those rights granted under Section 2.01,
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COREL shall deliver to ASP a master copy of the Software and any updates
and upgrades if available, in accordance with the estimated availability
as determined by COREL, in COREL's sole discretion, for the Software as
set out in Schedule "B".
2.04 Reseller Agreement. ASP shall ensure that each Reseller is subject to a
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binding written agreement with ASP that includes provisions consistent
with the material substance of Sections 2.02, 3, 4, 5.02, 5.04, 8, 9, 10
and 11 and such agreements must be materially no less protective of
COREL's rights in the Software than are the terms and conditions of this
Agreement.
3. TRADE-MARKS
3.01 COREL Marks. During the term of this Agreement, COREL hereby grants ASP a
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license to display the COREL Marks solely in the form provided by COREL
and only in conjunction with the ASP Program.
3.02 Non-alteration. ASP agrees not to alter the COREL Marks, copyright
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notices or designs of any Software. ASP acknowledges and agrees that COREL
retains all of its right, title and interest in the COREL Marks, and all
use of the COREL Marks by ASP shall enure to the benefit of COREL.
3.03 Mark Policies and Standards. ASP shall display the COREL Marks in
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accordance with COREL's Guidelines for Using COREL Trademarks and
Guidelines for Using COREL Logos as set forth in Schedule "A" or as
otherwise in effect from time to time. COREL retains the right to specify
and approve the quality and standards of all materials on which the COREL
Marks are displayed and to inspect samples of such materials from time to
time. Failure of ASP to adhere to such standards of quality shall be
grounds for COREL to terminate ASP's rights to use such COREL Marks and to
terminate this Agreement. In order to enable COREL to protect its rights
in the COREL Marks, ASP will advise COREL of every country in which it
markers or distributes the Software or uses the COREL Marks.
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3.04 Validity and Enforceability of Marks. ASP shall not at any time during or
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after the term of this Agreement assert any claim or interest in or to
anything which may adversely affect the validity or enforceability of any
of the COREL Marks. ASP shall not register, seek to register, or cause to
be registered any of COREL's trade-marks, logos, copyrights, including
the COREL Marks without COREL's prior written consent. ASP shall not
adopt or use such trade-marks, trade names, logos or insignia or any
confusingly similar work or symbol, as part of the ASP Program and/or the
ASP System company or partnership name.
3.05 Infringement and Further Assurances. ASP agrees to report all
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infringement or improper or unauthorized use of COREL's trade-marks,
trade names, logos or insignia, including the COREL Marks which come to
the attention of ASP, ASP further agrees to execute all documents and
further assurances required by COREL to register or protect COREL's
rights.
4. TERM OF AGREEMENT
4.01 Effective Date. This Agreement shall be effective as of the date first
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written above.
4.02 Initial Term. The initial term of this Agreement shall commence upon the
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date first written above and shall continue for a period of twelve (12)
months from such date, subject to Section 13.
4.03 Renewal. Subject to Section 13, this Agreement shall be renewed for
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subsequent periods of twelve (12) months at the end of the prior twelve
(12) month term unless either party notifies the other thirty (30) days
prior to the expiry of the term that it does not wish to renew the
Agreement for a further twelve (12) month term.
5. RESPONSIBILITIES OF ASP
5.01 ASP System and Customer Support. ASP represents and warrants to COREL
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that ASP has and will maintain a secure and fully functional ASP System
which shall only permit Customers to connect to the ASP System and which
shall not permit Customers to save the Software, Software files or
programs ("Software Files") on Customer's hard disk or any other tangible
media. However, Customer shall have the ability to store and print the
data created using the Software Files onto Customer's hard disk or any
other tangible media. ASP shall provide all support for Customers
utilizing the ASP System to access ASP Software Packages. ASP shall
indemnify COREL from all losses or damages suffered by COREL as a result
of any intentional or negligent failure of ASP and/or the ASP System to
restrict the saving or printing of Software or Software Files.
5.02 Restrictions. ASP shall distribute the Software only in the form provided
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by COREL as part of an ASP Software Package and shall not alter the
Software or End User License Agreement or any part thereof, COREL retains
the right to specify and approve the quality and standards of the
Software and to inspect samples of such Software from time to time. ASP
shall not rent the Software or ASP Software Packages or knowingly
distribute or resell to anyone who infringes COREL's rights. ASP shall
immediately discontinue all access to ASP System and electronic access to
Software or ASP Software Packages by Customers who rent same or infringe
COREL's rights. In the event ASP becomes aware of, or receives notice
from COREL, that Resellers have infringed COREL's rights, ASP shall
immediately discontinue all distribution of Software to said Reseller.
ASP shall impose this same restriction on all Resellers who distribute
the Software.
5.03 Acceptance of EULA. ASP shall ensure that, prior to access to or use of
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the Software by Customer, the applicable End User License Agreement
("EULA") forms part of the services agreement between ASP and Customer
and that by executing the services agreement Customer agrees to be bound
by and to comply with
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the terms and conditions of the EULA. In the event Customer rejects the
EULA, Customer shall not be permitted to access or use the Software.
5.04 Compliance with Laws. ASP shall comply with all laws, rules, regulations
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and industry standards existing with respect to the Software and the
performance by the ASP of its obligations hereunder existing in the
jurisdictions where the ASP carries on activities under this Agreement
and where the Software is accessed by Customers from time to time. ASP
shall not export the Software unless such export complies with any
applicable export laws and regulations as they apply to the Software. In
particular, ASP shall not export or re-export the Software, either
directly or indirectly, to countries to which the United States has
prohibited export, including, but nor limited to, Cuba, Iran, Iraq,
Libya, North Korea, Serbia, Syria, Sudan and Taliban controlled areas of
Afghanistan. COREL reserves the right to withhold its consent to the
distribution of the Software to any country if the laws of the target
country do not adequately protect the intellectual property rights of
COREL in the Software.
5.05 Press Releases. ASP agrees that all information released to the media or
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the general public regarding this Agreement or the relationship between
the parties including, but not limited to press releases, shall require
prior written approval of COREL. Within a reasonable period of time
following execution of this Agreement, the parties agree to jointly issue
a press release announcing the relationship between the parties.
5.06 Reports and Services. ASP shall provide COREL with reports and Services
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as further described in Schedule "C" hereto.
5.07 Audits. ASP agrees to maintain complete and accurate records relating to
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its promotion, marketing, use and distribution of the Software. COREL
shall have the right no more often than once each twelve (12) month
period to appoint an independent third party to examine ASP's books and
records in order to verify ASP's compliance with the terms of this
Agreement. Any such audit shall be at the expense of COREL unless the
audit reveals an underpayment by ASP of greater than five percent (5%) in
which case the audit shall be at the expense of ASP.
5.08 Service Packs. ASP agrees to install up to a maximum of three (3) service
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packs for the Software provided to ASP by COREL in each calendar quarter.
6. RESPONSIBILITIES OF COREL
6.01 Software Support. Customers shall be entitled only to COREL's electronic
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support for the Software in accordance with COREL's standard policies and
procedures as they may be in effect from time to time. Such Customer
Software support shall in no way apply to Customers access to or use of
the ASP Software Package, the ASP Program or ASP System.
7. PAYMENTS
7.01 Amounts Payable. ASP shall pay COREL, the amount or amounts described in
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Schedule "B" in accordance with the terms and conditions of Schedule "B"
within thirty (30) days of the end of each month.
7.02 Notice of Changes. COREL shall be entitled to discontinue any Software
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("Discontinued Software") at any time upon ninety (90) days prior
written notice to ASP. In such cases, COREL shall provide ASP with the
revised Schedule "B". In the event COREL discontinues any Software, ASP
shall immediately remove all Discontinued Software from the ASP System
and ASP Program and erase or destroy any Discontinued
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Software contained on ASP computers and/or computer diskettes in its
possession or under its control. Notwithstanding the aforementioned and
subject to Section 10.02, ASP may, upon receiving notice under this
section, continue to host the Discontinued Software for only those
clients who have a valid annual agreement with ASP for rental of the
Discontinued Software at date of such notice. Nothing in this section
grants ASP the right to renew any annual agreements related to the
Discontinued Software.
7.03 Taxes. ASP shall pay, in addition to all amounts specified in this
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Agreement, all duties and foreign, federal, state, provincial, county or
local income taxes, value added taxes, use, personal, property, sales
taxes and other taxes whatsoever, or amounts in lieu thereof, and
interest thereon, paid or payable or collectible by COREL (exclusive of
taxes based on COREL's net income) and levied or based on amounts
chargeable to or payable by ASP pursuant to this Agreement. In the event
any payments required to be made by ASP under this Agreement are subject
to applicable withholding tax that ASP is required to deduct from such
payments, ASP shall promptly deliver to COREL receipts issued by
appropriate government authorities for all such taxes withheld or paid by
ASP and ASP shall fully and promptly cooperate with COREL to provide such
information and records as COREL may require in connection with any
application by COREL to obtain available tax credits.
7.04 Late Payment. If ASP is in arrears under this Agreement, COREL will give
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written notice to ASP that ASP is responsible for payment of all
outstanding amounts and finance charges. If the outstanding amounts are
not paid within ten (10) days of such notice, COREL has the right to
terminate this Agreement. Late payments will be assessed a 1% finance
charge per month (12% per annum) or the highest finance charge permitted
by applicable law, whichever is less. All such finance charges shall
automatically begin to accrue on overdue amounts starting on the thirty-
first (31/st/) day after payment of such amounts was due. ASP shall pay
all costs including reasonable attorney's fees, incurred by COREL in
collection overdue amounts.
7.05 US Currency. All payments to COREL pursuant to this Agreement shall be
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made in the lawful currency of the United States of America and all
amounts referred to in this Agreement are in the lawful currency of the
United States of America.
8. CONFIDENTIALITY
8.01 Confidentiality. Each of the parties hereto agrees to keep confidential
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any and all information with respect to the other party which it has
received or may in the future receive in connection with this Agreement
which is not otherwise available to the general public without
restriction. Notwithstanding the foregoing, each of the parties shall be
entitled to disclose such information (i) to its agents, employees or
representatives who have a need to know such information for the purpose
of performance under this Agreement and exercising the rights granted
under this Agreement, or (ii) to the extent required by applicable law,
or (iii) during the course of or in connection with any litigation,
arbitration or other proceeding based upon or in connection with the
subject matter of this Agreement provided that ASP shall give COREL
reasonable notice prior to such disclosure and shall comply with any
applicable protective order or equivalent. ASP shall not disassemble,
decompile, reverse engineer or attempt dissemble, decompile, reverse
engineer the Software, except to the extent this restriction is not
permitted by applicable law. Confidential Information shall not include
that information defined as Confidential Information which the receiving
party can conclusively establish (i) was in the possession of the
receiving party at the time of disclosure; became part of the public
domain without the act of omission of the party to whom it was disclosed
(ii) prior to or after the time of disclosure; (iii) was disclosed to the
receiving party by a third party under no legal obligation to maintain
the confidentiality of such information; (iv) was independently developed
by the receiving party.
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9. WARRANTS AND OTHER REPRESENTATIONS
9.01 Warranty. The storage medium for the gold master for the Software is
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warranted against defects in workmanship and materials for a period of
ninety (90) days from the date it is delivered to ASP. In the event that
the storage medium for the gold master for the Software is defective
COREL will replace it free of charge with another copy of the gold master
for the Software. Replacement of the storage medium for the gold master
for the Software shall be COREL's sole obligations and ASP's sole remedy
for a breach of the warranty in this section.
9.02 Limitation. OTHER THAN AS PROVIDED IN SECTION 9.01, THE SOFTWARE, AND
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STORAGE MEDIA ARE PROVIDED AND LICENSED BY COREL ON AN "AS IS" BASIS AND
THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF
DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT
OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH BY COREL. COREL
DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY,
SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,
INCLUDING BUT NOT LIMITED TO STATEMENT REGARDING PERFORMANCE OF THE
SOFTWARE, OR STORAGEMEDIA, WHICH IS NOT CONTAINED IN THIS AGREEMENT,
SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR REPRESENTATION BY COREL.
9.03 No Variation. NO AGREEMENTS VARYING OR EXTENDING THE TERMS OF SECTION
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9.01 OR 9.02 WILL BE BINDING ON COREL UNLESS IN WRITING AND SIGNED BY AN
AUTHORIZEDSIGNING OFFICER OF COREL.
9.04 ASP not to Bind. ASP will give and make no warranties or representations
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on behalf of COREL as to quality, merchantable quality, satisfactory
quality, merchantability, fitness for a particular use or purpose or any
other features of the Software; and ASP shall not incur any liabilities,
obligations or commitments on behalf of COREL, including, without
limitation, a variation of the End User License Agreement.
10. INFRINGEMENT
10.01 Defense and Settlement. If notified promptly in writing of any action
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(and all prior related claims) brought against ASP alleging that ASP's
right to allow its Customers to access and use the Software under this
Agreement infringes any copyright, COREL will defend that action at its
expense and will pay the costs and damages finally awarded against ASP,
if any, in the action, provided: that ASP provides COREL with prompt
written notice of such claim(s); that COREL shall have sole control of
the defense of any such action and all negotiations for its settlement
or compromise; that ASP, and where applicable, those for whom ASP is in
law responsible, cooperate fully with COREL in its defense of the action;
and that COREL shall have no liability if (a) the action results from (i)
the use of the Software for purposes or in an environment for which it
was not designed; (ii) modification of the Software by anyone other than
COREL; (iii) distribution of any Software or display or use of any COREL
Mark after COREL's notice to ASP that it should cease distribution or use
of such Software and/or COREL Mark due to a possible infringement; or (b)
ASP is otherwise in material breach of the terms and conditions of this
Agreement.
10.02 Options Where Claim. If a final injunction is obtained in such action
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against ASP's distribution of the Software or if in COREL's opinion the
Software is likely to become the subject of a claim of infringement,
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COREL may at its sole option and expenses either procure for ASP the
right to distribute the Software or replace or modify the Software so
that it becomes non-infringing or terminate this Agreement in accordance
with Section 13.01.6.
10.03 Entire Liability. The foregoing states the entire liability of COREL and
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exclusive remedy of ASP with respect to any intellectual or industrial
property infringement.
11. LIMITATION OF LIABILITY
11.01 Limitation. IN NO EVENT WILL COREL BE LIABLE FOR ANY INCIDENTAL,
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INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER
RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE
OR STORAGE MEDIA, OTHER COREL PROVIDED MATERIAL OR THE PERFORMANCE OF
COREL WHETHER SUCH ACTION IS BASED IN CONTRACT OR IN TORT INCLUDING BUT
NOT LIMITED TO NEGLIGENCE AND WHETHER OR NOT COREL HAS BEEN ADVISED OF
THE POSSIBILITY OR SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
11.02 Aggregate Liability. Other than as provided in Section 10, COREL's
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aggregate liability to ASP whether for negligence, breach of contract,
misrepresentation or otherwise shall, in respect of a single occurrence
or a series of occurrences, in no circumstances exceed the Software
Prices paid by ASP to COREL over the twelve (12) month period immediately
preceding the claim by ASP.
12. ASP INDEMNIFICATION
12.01 Indemnification. Except as set forth in Section 10, ASP agrees to
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indemnify and save COREL harmless from and against any and all claims,
demands, costs and liabilities (including all reasonable legal and
attorney fees and expenses) of any kind whatsoever, arising directly or
indirectly out of claims by ASP's Customers or any third party relating
to: (i) ASP's performance or non-performance of its obligation under this
Agreement; (ii) the maintenance, performance, non-performance or
functionality of the ASP's System; or (iii) breach of Section 5.01
warranties.
13. TERMINATION
13.01 Termination. This Agreement will terminate in the event of any of the
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following:
13.01.1 immediately in the event of termination of the ASP Program;
13.01.2 written notice of termination from COREL, effective immediately,
under Section 7.04;
13.01.3 on the thirtieth (30th) day after one party gives the other
written notice of breach by the other of any material term or
condition of this Agreement unless the breach is cured before
that day;
13.01.4 written notice of termination by one party, effective
immediately, after a receiver has been appointed in respect to
the whole or a substantial part of the other's assets or a
petition in bankruptcy or for liquidation is filed by or against
that other, or if the other has been dissolved or liquidated or
is insolvent;
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13.01.5 written notice of termination, effective immediately, by the
non-defaulting party; if ASP or COREL has breached its
obligations under Section 8; or
13.01.6 upon the expiry of thirty (30) days following receipt by either
party of written notice from the other party terminating this
Agreement for convenience.
13.02 No Compensation. The parties acknowledge and agree that they have no
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expectation that their business relationship with the other will continue
for nay minimum period of year or that neither party shall obtain any
anticipated amount of profits by virtue of this Agreement. However, ASP
acknowledges and agrees that this Section 13.02 shall not apply to
amounts owed or owing by ASP to COREL pursuant to this Agreement. The
parties agree that the termination provisions herein, in terms of both
notice and default events are reasonable and agree not to contest by way
of wrongful termination proceedings or otherwise. COREL shall not be
liable, by reason of any termination of this Agreement, for compensation,
reimbursement or damages on account of the loss of perspective profits on
anticipated orders or on account of expenditures, investments, leases or
commitments whatsoever in connection with the business or goodwill of
ASP.
14. EFFECT OF TERMINATION
14.01 ASP. In the event of termination ASP shall:
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14.01.1 perform with respect to COREL all payment and other obligations
of ASP arising under this Agreement within thirty (30) days of
termination;
14.01.2 immediately cease to use the COREL Marks in any manner
whatsoever and immediately cease to act as a Software access
provider and to represent itself as such; and
14.01.3 immediately remove all Software provided pursuant to this
Agreement from ASP System and ASP's server and cease or destroy
any such Software contained on ASP computers and/or computer
diskettes in possession or under its control.
14.02 Survival. Sections 2.02, 3.02, 3.04, 5.07, 7, 8, 9, 10, 11, 12, 13, 02,
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14 and 15 shall survive the termination of this Agreement.
14.03 No Prejudice. Except as provided in Section 13.02, termination hereunder
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shall be without prejudice to any other right or remedy to which either
party may be entitled hereunder in law.
14.04 Destroy or Deliver Up. At termination, COREL shall have the option to
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require ASP to destroy and certify that it has destroyed or to deliver to
COREL any property of COREL, including the gold masters for the Software,
then in its possession or under its control.
15. MISCELLANEOUS
15.01 Entire Agreement. This Agreement constitutes the entire agreement between
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the parties concerning the subject matter hereof and supersedes all prior
statements, representations, discussions, negotiations and agreements,
both oral and written, including all pre-printed terms and conditions
appearing on ASP's order forms, COREL's acknowledgment of order forms and
COREL's invoice forms.
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15.02 Amendment or Waiver. COREL expressly reserves the right to modify
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Schedule "A" from time to time. Except as specifically provided for
herein, all other modifications and/or amendments require a mutual
written agreement signed by authorized signing officers of both parties.
No order, invoice or similar document will affect this Agreement even if
accepted by the receiving party.
15.03 Illegal or Unenforceable Provisions. If any one or more of the provisions
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of this Agreement shall be found to be illegal or unenforceable, this
Agreement shall nevertheless remain in full force and effect, and such
term or provision shall be deemed severed.
15.04 Independent Contractors. The parties to this Agreement are independent
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contractors. No relationship of principal to agent, master or servant,
employer to employee or franchisor to franchisee is established between
the parties. Neither party has the authority to bind the other or incur
any obligation on its behalf.
15.05 Force Majeure. Unless continuing for a period of ninety (90) consecutive
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days, or unless involving the payment of amounts due under this
Agreement, no default, delay or failure to perform on the part of either
party shall be considered a breach of the Agreement if such default,
delay or failure to perform is shown to be due entirely to an event of
force majeure, or to causes beyond the reasonable control of the
defaulting party including without limitation, strikes, riots, civil
disturbances, actions or inactions concerning governmental authorities,
epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God
or the public enemy or default of a common carrier, always provided that
the party so relieved of its obligations shall take reasonable steps to
prevent, correct or amend such act or event which renders such
obligations impossible.
15.06 No Waiver. Neither of the party's rights to enforce provisions of this
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Agreement shall be affected by any prior course of dealing, waiver,
delay, omission or forbearance.
15.07 Assignment. This Agreement and the rights granted hereunder shall not
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be assigned, encumbered by security interest or otherwise transferred by
ASP without the prior written consent of COREL. An amalgamation or merger
of ASP or COREL with any person who is not a party to this Agreement
shall be deemed to result in an assignment of this Agreement. COREL may
assign this Agreement at any time upon notice to this effect to ASP.
15.08 Enurement. This Agreement shall enure to the benefit of and be binding
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upon the parties and their respective successors and permitted assigns.
15.09 Notices. Any notice or other communication to the parties shall be sent
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to the addresses set out above, or such other places as they may from
time to time specify by notice in writing to the other party. Notice to
COREL shall be sent to the attention of the legal department. Any such
notice or other communication shall be in writing, and, unless delivered
to a responsible officer or the addressee, shall be given by registered
mail, facsimile or telex and shall be deemed to have been given when such
notice should have reached the addressee in the ordinary course, provided
there is no strike by postal employees in effect or other circumstances
delaying mail delivery, in which case notice shall be delivered or given
by facsimile or telex.
15.10 Further Assurances. The parties agree to do all such things and to
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execute such further documents as may reasonably be required to give full
effect to this Agreement.
15.11 Time. Time shall be of the essence.
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15.12 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Province of Ontario, excluding that body
of law applicable to choice of law and excluding the United Nations
Convention on Contracts for the International Sale of Goods and any
legislation implementing such Convention, if otherwise applicable. ASP
hereby consents and attorns to the jurisdiction of the courts of such
Province. If either party employs attorneys to enforce any rights out of
or relating to this Agreement, the prevailing party shall be entitled to
recover reasonable attorney's fees. Each party waives any right, and
agrees not to apply to have any disputes under this Agreement tried or
otherwise determined by a jury, except where required by law.
15.13 Non-Conflict. No director or officer of Corel Corporation (and/or its
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subsidiaries and affiliates) shall be admitted to any share or part of
this Agreement or to any benefit arising therefrom.
15.14. Language. The original of this Agreement has been written in English and
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ASP waives any right it may have under the laws of ASP's Territory to
have this Agreement written in any other language. ASP represents that it
has the ability to read and write in English and has read and understands
this Agreement. If this Agreement is translated into a language other
than English, the English version and interpretation shall govern and
prevail. All communications between the parties hereunder shall be in
English.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written.
InsynQ, Inc.
PER: /s/ John P. Gorst
----------------------------------
Name: /s/ [ILLEGIBLE]^^
Title: CEO
Corel Corporation
PER: /s/ [ILLEGIBLE]^^
----------------------------------
Name:
Title:
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SCHEDULE "A"
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GUIDELINES FOR USING COREL TRADE-MARKS AND GUIDELINES FOR USING COREL LOGOS
Corel permits you to use its logos and trademarks in both plain word and
stylized form (the "Marks") for the purpose of promoting and advertising Corel
products or services, provided you comply with the following guidelines:
. The Marks may only be used in relation to Corel products or services.
This means that you may not display the Marks on any non-Corel product
or service including any associated packaging, documentation,
advertising or other materials in a manner that suggests that such
product or service is a Corel product or service, that Corel or any of
the Marks are associated with such product or service or that Corel is
affiliated with, endorses or sponsors you or any of such products or
services. Use of Corelpartner program logos and trademarks, such as
the Corel Solutions Partner and Corel Training Partner logos, are
subject to the terms and conditions of the respective partner program
and no permission to use such logos is granted herein. Please contact
a Corel representative or visit corel.com for further details.
. Corel will provide you with the artwork for the Marks. This artwork
may not be altered in any way.
. When displayed, the Marks must be substantially less prominent than
your trademark, trade name, logo or product name. The Marks may not be
used as, or as part of, a company name.
. When displayed, the Marks must stand alone. A minimum amount of empty
space must be left between the Marks and any other object such as
type, photography, borders, edges, etc. The required border of empty
space around the Marks must be 1/2x wide where x is the height of the
Mark.
. You may not combine the Marks with any other feature including, but
not limited to, other logos, words, graphics, photos, slogans,
numbers, design features, or symbols. Further, you may not display
your own logos or marks or other text or graphics in the same or
similar get-up, graphics, look, or trade-dress as the Marks.
. The Marks must not be used in a manner that, in Corel's judgment, may
diminish or otherwise damage Corel's goodwill in the Marks, including
but not limited to uses which could be deemed to be obscene,
pornographic, or otherwise in poor taste or unlawful, or which purpose
or objective is to encourage unlawful activities.
. You must place an asterisk (*) or similar notation mark beside the
first use of a Mark and include the following attribution statement
on the materials in which the Marks are featured.
"* Trademark(s) of Corel Corporation or Corel Corporation Limited"
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SCHEDULE "B"
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SOFTWARE AND SOFTWARE PRICES
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Daily Rate Monthly Rate Annual Rate
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ASP For User Profile For user Profile For user Profile
Software Part Number Software Price ($US) Software Price ($US) Software Price ($US)
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Corel Business Applications
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Corel(R) WordPerfect(R) Office 2000 ASPWPO2k $3.50 $8.50 $102.00
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Corel(R) Print Office 2000(TM) AEPPO2k $1.85 $5.10 $61.20
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Corel Graphics Applications
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CorelDRAW(TM) 9 ASPDRAWS0 $3.75 $10.25 $123.00
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CorelDRAW(TM) 9 Office Edition ASPDRAWSOQE $3.50 $8.50 $102.00
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Corel(R) Custom Photo ASPCP10 $1.15 $3.40 $40.80
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Corel(R) Print House(TM) Magic & Classic ASPPH40 $1.15 $3.40 $40.80
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Corel(R) 110,000 On-line Content ASPOC110 N/A $2.00 $24.00
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Corel Bundled Applications
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Basic Package*
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Corel(R) Custom Photo ASPCP10BP N/A $2.55 $30.80
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Corel(R) Print House(TM) Magic & Classic ASPPH40BP N/A $2.55 $30.80
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Corel(R) 110,000 On-line Content ASPOC110BP N/A $0.80 $10.80
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Total Package $6.00 $72.00
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Enhanced Package*
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Corel(R) WordPerfect(R) Office 2000 ASPWPO2KEP N/A $7.65 $91.80
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Corel(R) Print Office 2000 (TM) ASPPO2KEP N/A $2.55 $30.60
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Total Package $10.20 $122.40
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Premium Package*
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Corel(R) WordPerfect(R) Office 2000 ASPWPO2KPP N/A $7.85 $91.60
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CorelDRAW(TM) 9 ASPDRAW90PP N/A $8.60 $102.00
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Total Package $16.18 $193.80
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*PLEASE NOTE: Each Booklet Package must be sold as a complete offering
N/A: Not Available Pricing in $U.S. Dollars
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SCHEDULE "C"
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REPORTS AND SERVICES
A. ASP REPORTS:
ASP shall provide to COREL within thirty (30) days of the end of each month,
monthly sales data and Customer information reports which shall be submitted
to COREL in electronic format as provided by COREL from time to time and shall
contain all of the following information or other information as is reasonably
requested by COREL from time to time. COREL shall be entitled to change to
format of reporting upon thirty (30) days prior notice. All reports shall be
submitted to POS@corel.com in two (2) electronic files; File 1 - POS Sales Data
and File 2 - Customer Information.
File 1 - POS Sales Data
1. ASP_NAME ASP Name - Fill in your company name
2. DATE If your system is capable of reporting transaction data
on a daily basis, report dates of transactions in
"International Date Format". If you are only able to
provide monthly summarized data, use the first day of
the month as the date. COREL uses calendar months for
reporting dates. Identify exceptions such as the usage
of fiscal months to COREL.
3. VENDOR_SKU means COREL's ASP part numbers as they appear on COREL
price lists. COREL's ASP part numbers must be used.
Capital/block letters must also be used.
4. SUB_TYPE means the subscription type chosen by Customer (daily,
monthly or annual).
5. SOFTWARE means the name of the Software. (Recommended).
6. UNI_SOLD means the number of units sold to Resellers and
Customer.
7. UNI_COST means COREL's selling price, or your buying price in
U.S. Dollars. COREL will only accept unit prices
reported in U.S. Dollars.
8. RESELL_ID means your internal customer ID for your Resellers
(required where available)
9. RESELL_NAME means the Reseller name _ who you sold the Software to.
File 2 - Customer Information (If available to ASP)
1. NAME means the Customer name.
2. ADDRESS means the Customer address.
3. CITY means the Customer city.
4. PROV/STATE means the Customer province or state.
5. PHONE means the Customer phone number.
6. EMAIL means the Customer email.
All sales transactions must be included. Any unreportable transactions must be
identified to your designated Corel representative.
To ensure proper processing of any rebates, orders, and inventory information,
the usage of Corel part numbers is mandatory.
Naming conventions are to be applied to your files. Examples are shown below:
POS Sales Data- year/month/Sales.
97_12_Sales. Or.
9712S. (If not using Windows 95)
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B. SERVICES
Security Requirements
Upon transfer of the Software by COREL to ASP, ASP shall be responsible for
the security of the Software while it is stored with ASP and during
electronic access by Customers. ASP shall use cryptographic methods to
authenticate the Software and ensure integrity and confidentiality of the
Software during any transmission. The ASP System shall contain the
following security controls:
ASP System shall contain the following security controls:
1) Physical security controls which isolate the ASP System from physical
access by anyone not directly authorised to manage the ASP System;
2) Logical access controls that enforce positive control over access to
the Software, the applications, and operating systems functions that
interact with the Software;
3) Code integrity controls that verify the integrity of the Software
immediately prior to any electronic access of the Software;
4) Connectivity controls that ensure that all network connections to the
ASP System are under the positive control of those personnel with
direct responsibility for the security of the Software;
5) All security controls over Software generate effective audit trails
that are secure from modification; and
6) All cryptographic keys that support security functionally for Software
are stored and used operationally completely within secure dedicated
software.
Miscellaneous
1) ASP shall not present, nor authorize others to present, non-COREL
Software as COREL Software.
2) ASP shall always provide the most current Software version as provided
by COREL, unless otherwise requested by COREL.