Exhibit 10.54
[LOGO OF WIRELESS KNOWLEDGE(TM)]
Application Service Provider Reseller Agreement
This Application Service Provider Reseller Agreement (the "Agreement") is made
as of October - 27th, 2000 ("Effective Date") by and between Wireless Knowledge,
Inc., a Delaware corporation, with a place of business at 6215 Ferris Square,
San Diego, CA ("Wireless Knowledge"), and Insynq, Inc., a Delaware corporation,
with a place of business at 1101 Broadway Plaza, Tacoma, WA ("Reseller").
Objective
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The creation of a reseller partnership whereby Wireless Knowledge offers
Reseller discounted pricing, professional services, sales and marketing support
for Wireless Knowledge's Workstyle Server(TM) and whereby Reseller purchases
Workstyle Server and offers it as a hosted, value-added extension of Mircosoft
Exchange to its customer base.
Offering
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(1) Term
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The term of this Agreement is for a period of one year commencing on
the Effective Date ("Term"). The Term shall automatically renew for
successive one-year periods unless one party provides the other party
written notice of its intent to terminate this Agreement at least 60
days prior to the conclusion of the original or any renewal Term.
(2) Reseller Certificate
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Reseller shall furnish a copy of its Reseller Certificate upon
execution of this Agreement. Reseller is responsible for collecting
and reporting all applicable sales taxes related to Workstyle Server
sales to Reseller's customers.
(3) Government Channel Exception
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Reseller may resell hosted Workstyle to any Customers with the
exception of Government Channel. "Government Channel" is defined as
any enterprise that is a government entity located within North
America, including without limitation, the governments of the United
States, its territories and possessions, any State, the District of
Columbia, or any political subdivision, agency or military unit of any
of the preceding.
(4) Subscription
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Workstyle Server is sold on a subscription basis. Retail subscriptions
are purchased as an up-front, annual fee per subscription or user.
Wireless Knowledge will offer "pay-as-you-go" pricing to Reseller.
Reseller can check subscriptions into and out of the Workstyle Sub
Bank as needed (refer to the
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
Workstyle Server Planning and Installation Guide). Wireless Knowledge
will issue an invoice monthly for the total number of subscriptions
the Reseller has checked out of the Workstyle Sub Bank at a specified
date and time each month ("Close Date") to be agreed upon by both
parties.
(5) Retail Pricing
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The following table establishes suggested retail pricing (SRP) for
Workstyle Server and optional premium technical support, both paid as
an up-front, annual fee per subscription.
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SUBSCRIPTION PACKAGES
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Description Retail 50 Pack 250 Pack 1000 Pack
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Workstyle for Exchange 5.5 Total Pack $5997.50 $28,737.50 $109,950.00
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Annual Subscription Pricing SKU# SUBWSME0050D SUBWSME00250D SUBWSME010000D
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Per Sub $119.95 $114.95 $109.95
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(Monthly) $10 $9.58 $9.16
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Optional - Total Add-on $1199.50 $5747.50 $21,900.00
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Premium Technical Support SKU# DSUP0050 DSUP0250 DSUP1000
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Annual Subscription Pricing Per Sub $23.99 $22.99 $21.99
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(Monthly) $2 $1.92 $1.83
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% of Sub 20% 20% 20%
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(6) Reseller Pricing
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Wireless Knowledge agrees to discount Workstyle Server pricing to
Reseller for each Subscription issued or renewed by Reseller to an End
User based on the total number of subscriptions the Reseller has
checked out of the Workstyle Sub Bank at the Close Date. Price per
subscription may vary month-to-month depending on the total number of
subscriptions at the Close Date. As an option, Wireless Knowledge
offers a discount to Reseller for Premium Technical Support as an
additional fee of 10% of price per sub for any volume of subscriptions
that Reseller has checked out of the Workstyle Sub Bank at the Close
Date. Payment shall be due within thirty (30) days of the invoice
date.
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Total % of Subscriptions
Checked Out at End of Month Reseller Monthly Price Per Sub Reseller Savings Over SRP
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1-249 subs $7.25 per sub $2.75 per sub or 27.5%
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250-999 subs $6.75 per sub $2.83 per sub or 30%
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1000-2499 subs $6.00 per sub $3.16 per sub or 34.5 %
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2500-4999 subs $5.25 per sub
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5000-9999 subs $4.75 per sub
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*10,000 subs $4.00 per sub
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Optional Premium Technical Support Add-on 10% of price per sub for any volume
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(7) Maintenance and Technical Support
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Included in the subscription price, Wireless Knowledge will provide
Reseller with Workstyle Server bug fixes, service packs, and upgrades
as available and
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
ongoing technical support to Reseller's IT personnel. Reseller's IT
personnel are responsible for providing direct support to Reseller's
customer base. Standard technical support is available Monday through
Friday, 5 AM to 5 PM Pacific Standard Time, except holidays. As an
option, Reseller may purchase premium technical support for assistance
24 hours per day, 7 days per week.
(8) Fees; Taxes
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The amounts to be paid by Reseller to Wireless Knowledge herein do not
include any foreign, U.S. federal, state, local, municipal or other
governmental taxes, duties, levies, fees, excises or tariffs, arising
as a result of or in connection with the transactions contemplated
under this Agreement, including, without limitation, any state or
local sales or use taxes or any value added tax or business transfer
tax now or hereafter imposed on the sales or renewals of subscriptions
by Reseller under this Agreement. All such taxes (and any interest,
penalties or other additions to any such taxes), excluding taxes
imposed on Wireless Knowledge's net income or with respect to Wireless
Knowledge's property ownership, shall be the collection and financial
responsibility of Reseller. Reseller will be responsible for the
billing, collecting and remitting of sales, use, value added, and
other comparable taxes determined by Reseller to be due from End
Users. Wireless Knowledge is not liable for any taxes, including
without limitation income taxes, withholdings, value added, franchise,
gross receipts, sales, use property or similar taxes, duties, levies,
fees, excises or tariffs incurred in connection with the Workstyle
Server Software Product distributed by Reseller, subscriptions issued
or renewed by Reseller, or related to the sale of Reseller's products.
Reseller takes full responsibility for all such taxes, including
penalties, interest and other additions thereon. Reseller agrees to
indemnify, defend and hold Wireless Knowledge harmless from any such
taxes or claims, causes of action, costs (including reasonable
attorney's fees) and any other liabilities of any nature whatsoever
related to such taxes.
(9) Internal Use
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Reseller pricing outlined in (6) is extended for Reseller's internal
use of Workstyle Server.
(10) Beta Site
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Upon execution of this Agreement, Reseller will be considered as an
official beta site for future software releases and new products from
Wireless Knowledge.
(11) Ownership Rights
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Reseller acknowledges and agrees that Wireless Knowledge retains all
title and rights to the Workstyle Server Software Product and any
modifications or improvements thereto (including, without limitation,
any modifications and improvements derived from suggestions by
Reseller, or by potential or actual
Wireless Knowledge
PROPRIETARY & CONFIDENTIAl INFORMATION
customers or any other third party, for modifications, improvements or
other enhancements to the Workstyle Server Software), except for the
rights expressly licensed herein, and to all copies and all related
documentation and materials. Reseller will disclose in writing the
foregoing ownership rights of Wireless Knowledge to the Workstyle
Server before soliciting or receiving suggestions for improvements,
modifications or other enhancements to the software from actual or
potential customers or any other third party. Reseller acknowledges
and agrees that the Workstyle Server software is a trade secret of
Wireless Knowledge, and that unauthorized copying of the Workstyle
Server software, including modification, merger or inclusion with any
other software or products, is expressly forbidden.
Professional Services
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(1) Workstyle Server Implemention and Training
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Reseller agrees to engage Wireless Knowledge's Professional Services
to plan the secure implementation of Workstyle Server within the
Reseller's network, to install the Workstyle Server and to properly
train Reseller's personnel to operate and support the Workstyle
Server. Reseller agrees to compensate Wireless Knowledge for the
services outlined below at a fixed price of $10,000 plus any pre-
approved, reasonable travel and related expenses.
. Project Manage implementation and training process
. Assess Reseller's current environment
. Identify security requirements
. Create design to integrate Workstyle Server into Reseller's
infrastructure in compliance with architectural and security
requirements
. Install Workstyle Server in accordance with design
. Verify Workstyle Server functionally and performance
. Train Reseller's IT personnel on supporting the Workstyle Server
and using the Admin tools; and
. Provide access to web-based end-user training materials
(2) Additional Services
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Reseller may contract with Wireless Knowledge to provide additional
services including, but not limited to, sales and technical training,
consulting, custom application development and systems engineering.
These services will result in additional fees, to be agreed upon by
both parties.
(3) Client Wireless Customization
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Reseller will commit to using Wireless Knowledge Professional Services
for Client wireless customization upon Reseller's acceptance of
Wireless Knowledge's Professional Services capabilities and rates to
be agreed upon by both parties.
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
(4) Reseller shall use only the Wireless Knowledge Professional Services
organization (or such other professional services as Wireless Knowledge may
authorize from time to time), to install the Workstyle Server.
Sales and Marketing Support
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(1) Trade Name, Trade Marks and Service Marks
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Each party shall be allowed to use the trademarks, service marks, logos,
trade names or similar designations ("Authorized Marks") of the other party
for brand awareness, marketing materials (defined below) and similar uses
to promote Workstyle Server, subject to any usage guidelines as a party may
deliver to the other party time to time.
(2) Collateral
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Reseller's marketing collateral will contain the powered by Wireless
Knowledge logo.
(3) Partner Site
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Wireless Knowledge will provide Reseller access to a Partner Site that
contains sales and marketing materials for Reseller to use in its sales and
marketing efforts, including data sheets and white papers.
(4) Web Sites
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Wireless Knowledge agrees to display Reseller's logo and link on its web
site. Reseller agrees to display Wireless Knowledge's logo and link on its
web site.
(5) Press Release
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Upon execution of this Agreement, Wireless Knowledge and Reseller will have
the right to issue one or more mutually acceptable press releases, which
frame the relationship and working commitment.
(6) Reseller Representations, Warranties and Covenants
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a. Reseller agrees to provide Wireless Knowledge with copies of all
brochures, advertisements, direct mail materials and all other marketing
materials regarding the Workstyle Server for Wireless Knowledge's prior
review and approval. The purpose of such review shall be to verify the
accuracy of such materials with respect to the Workstyle Server and the
appropriate usage of Wireless Knowledge's trademarks and proprietary
notices (including, without limitation, trademark and copyright notices).
Reseller agrees to correct all errors and omissions as reasonably
required by Wireless Knowledge prior to the distribution of such
materials. Reseller shall provide Wireless Knowledge with copies of such
materials sufficiently in
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
advance to allow adequate time for review and for Reseller to correct
any errors or omissions. Wireless Knowledge shall approve or
disapprove of such materials within five (5) business days of receipt
from Reseller. Reseller agrees not to make any use of the trademarks,
logos or trade names of Microsoft Corporation or Qualcomm,
Incorporated, or any other Wireless Knowledge affiliate without the
advance written consent of each such company;
b. Reseller shall designate an employee as the contact person for
the administration of this Agreement and advise Wireless Knowledge of
the employee's name address and phone numbers. Such designated
employee shall be responsible for all contact with Wireless Knowledge
regarding the Workstyle Server and this Agreement.
Miscellaneous
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(1) Relationship of Parties.
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The Parties expressly understand and agree that Reseller is an
independent contractor in the performance of each and every part of
this Agreement, is solely responsible for all of its employees and
agents and its labor costs and expenses arising in connection
therewith. Wireless Knowledge is in no manner associated with or
otherwise connected with the actual performance of this Agreement on
the part of Reseller, nor with Reseller's employment of other persons
or incurring of other expenses. The relationship between Wireless
Knowledge and Reseller shall not be that of partners, agents, or joint
ventures for one another, and nothing contained in this Agreement
shall be deemed to constitute a partnership or agency agreement
between them for any purpose, including but not limited to federal
income tax purposes.
(2) Limitations of Warranties; Indemnity; Liability
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a. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, WIRELESS
KNOWLEDGE MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SOFTWARE PRODUCT WHICH IS PROVIDED AS IS.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL EITHER PARTY BY LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. THE ENTIRE LIABILITY OF WIRELESS KNOWLEDGE FOR ANY CLAIM OR
CAUSE OF ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR
OTHERWISE) SHALL NOT
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
EXCEED THE AGGREGATE AMOUNTS PAID TO WIRELESS KNOWLEDGE HEREUNDER WITHIN
THE PRECEEDING YEAR. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY IN ALL
INSTANCES.
(3) Termination
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a. This Agreement may be terminated by either Party by written notice
to the other Party if the other Party materially breaches any provision of
this Agreement and such breach is not cured within 30 days after the
breaching Party receives written notice thereof.
b. In no event shall Wireless Knowledge incur any liability
whatsoever for any damage, loss or expenses, of any kind suffered or
incurred by Reseller (or for any compensation to Reseller) arising from or
incident to any termination of this Agreement by Wireless Knowledge that
complies with the terms of the Agreement.
c. Upon termination of this Agreement by either Party or naturally at
the end of the Term: (i) all rights and obligations of the Parties
hereunder shall terminate, except that licenses granted to End Users and
Subscriptions issued to or renewed by Subscribers in accordance with this
Agreement will remain in effect in accordance with their terms; and (ii)
Reseller will immediately cease use of and return to Wireless Knowledge all
Workstyle Server, software, documentation, other proprietary information,
master disks, catalogues and literature in its possession, custody or
control in whichever form held (including all copies or embodiments
thereof) and will cease using any trademarks, trade names, service marks
and other designations of Wireless Knowledge. Notwithstanding the
foregoing, Reseller shall be obligated to pay Wireless Knowledge the fees
set forth in Section 6 of this Agreement for Subscriptions issued or
renewed by Reseller to the extent not paid prior to termination or
expiration of this Agreement. At the option of Wireless Knowledge, Wireless
Knowledge shall assume all agreements with existing End Users and
Subscribers, who shall revert back to Wireless Knowledge for continued
support and future sales and renewals of Subscriptions.
d. Within ten (10) days of termination of this Agreement, Reseller
shall report to Wireless Knowledge, in writing, the services Reseller is
obligated to supply existing customers.
(4) Indemnification
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Wireless Knowledge and Reseller (each, an Indemnifying Party) shall
indemnify, defend and hold harmless the other and its affiliates (including
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
majority shareholders), officers, directors, employees and agents (each, an
Indemnified Party), from and against any and all damages, losses,
liabilities and expenses (including reasonable attorney's fees) arising out
of or relating to any claims, actions or other proceedings that result from
the Indemnifying Parties (i) intentional misconduct, gross negligence, or
fraud, (ii) material breach of any representation or warranty made herein,
(iii) products or services (including, without limitation, any claims that
such products or services infringe any United States patent, copyright,
trademark, trade secret or any other proprietary right of any third party),
(iv) acts or omissions, or (v) misrepresentations in the marketing or other
promotion of its products or services or the Indemnified Parties products
or services (except to the extent such misrepresentation is contained in
any documentation or marketing material supplied by the Indemnified Party).
(5) Non-exclusive
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The rights of the parties are non-exclusive and either party may promote
and market products or services of other suppliers that are competitive
with the products and services provided by the other party.
(6) Restrictions
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a. Reseller shall not reverse engineer, decompile or disassemble the
Software Product except as otherwise specifically permitted by law.
b. Reseller agrees that it will not modify, make improvements to or
otherwise alter the Software Product.
(7) Confidentiality
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Reseller agrees that the Software Product and all code, inventions,
algorithms, know-how and ideas it obtains from Wireless Knowledge and all
other business, technical and financial information it obtains from
Wireless Knowledge are the confidential property of Wireless Knowledge
("Proprietary Knowledge"). Except as expressly and unambiguously allowed
herein, Reseller agrees that it will not disclose any Proprietary Knowledge
without the prior written consent of Wireless Knowledge and will protect
any Proprietary Knowledge from improper use or disclosure.
(8) Governing Law and Legal Actions
-------------------------------
This Agreement shall be governed by and construed under the laws of the
State of California without regard to its conflicts of laws provisions. The
sole jurisdiction and venue for actions related to the subject matter
hereof shall be the California state and U.S. federal courts having within
their jurisdiction San Diego County, California, and both Parties consent
to the jurisdiction of such courts. In any action or arbitration proceeding
to enforce rights under this
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
Agreement, the prevailing Party shall be entitled to recover
reasonable costs and attorneys' fees.
(9) Dispute Resolution
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The parties agree that any disputes concerning the subject matter of
this Agreement are first to be escalated to a vice president-level
person at each party who will have three (3) business days to resolve
the dispute. If the parties are unable to resolve any dispute through
negotiation the dispute will be submitted for mediation under the CPR
Mediation Procedure for Business Disputes. Unless the parties agree
otherwise, the mediator will be selected from the CPR Panel of
Neutrals. If the matter has not been resolved pursuant to the
aforesaid mediation procedure within 45 days after appointment of the
mediator (which period may be extended by mutual consent of the
parties) the parties will submit the dispute to binding arbitration.
The arbitration shall be in accordance with the CPR Non-Administered
Arbitration Rules, and conducted before a single arbitrator. The
decision of the arbitrator shall be binding upon the parties and
judgement upon the award may be entered by any court having
jurisdiction thereof. Unless otherwise agreed, the arbitration shall
take place in San Diego, CA.
The parties agree that the United Nations Convention on Contracts for
the International Sale of Goods is specifically excluded from
application to this Agreement. The prevailing Party in any such
arbitration shall be entitled to recover its reasonable attorneys
fees, arbitrator's fee and costs, in connection with such proceeding.
(10) Notices
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All notices and other communications given under this Agreement shall
be deemed to have been duly given when sent by facsimile (with
confirmation in writing), or delivered personally or on the third
business day after being sent by overnight courier service, registered
or certified first class United States mail (postage prepaid, return
receipt requested) to the Parties at the facsimile number or address
set forth herein or at such other address as shall be furnished by the
Parties by like notice.
(11) Entire Agreement
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This Agreement, including all Attachments hereto, which are hereby
incorporated herein by reference, together contain the entire
understanding between the Parties hereto concerning the subject matter
addressed in this Agreement, and supersede all proposals, oral or
written, all negotiations, conversations, or discussions between or
among Parties relating to the subject matter of this Agreement and all
past dealing or industry custom.
(12) Severability
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Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
If any provision of this Agreement is held to be illegal or
unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain
in full force and effect and enforceable.
(13) Successors and Assigns
----------------------
This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective legal representatives, successors and
assigns. Neither Party may assign or transfer its right, benefits,
interests, duties or obligations under this Agreement without the
prior written consent of the other Party; provided however, a Party
shall have the right, without the other Party's consent, to assign or
otherwise transfer this Agreement to any entity into which such Party
may be merged or consolidated or which purchases or otherwise acquires
all or substantially all of the assets of such Party provided that (i)
such assigning Party shall not be released from its obligations
hereunder, (ii) the assignee shall be subject to all of the provisions
of this Agreement, and (iii) the assignee is not a competitor of the
non-assigning Party.
(14) Reseller's Governmental Approval Obligations
--------------------------------------------
Reseller shall, at its own expense, obtain and arrange for the
maintenance in full force and effect of all governmental approvals,
consents, licenses, authorizations, declarations, filings, and
registrations as may be necessary or advisable for the performance of
all of the terms and conditions of this Agreement, and if applicable,
including, but not limited to, foreign exchange approvals, import and
offer agent licenses, fair trade approvals and all approvals which may
be required to realize the purposes of this Agreement.
(15) Export Controls
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Reseller acknowledges that the distribution of the Software Product is
subject to the export control laws and regulations of the United
States of America, and any amendments thereof, which restrict exports
and re-exports of software, technical data, and direct products of
technical data, including services derived from use of the Software
Product (the "Direct Products"). Reseller agrees that it will not
export or re-export any Software Products or Direct Products, or any
information and documentation related thereto, directly or indirectly,
without first obtaining permission to do so as required from the
United States of America Department of Commerce's Bureau of Export
Administration, or other appropriate governmental agencies, to any
countries, end-users, or for any end-users that are restricted by U.S.
export laws and regulations, and any amendments thereof, which
include, but are not limited to, the following: (i) restricted
countries: Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria and
Vietnam: (ii) restricted end users: any end user whom Reseller knows
or has reason to know will use Software Products or Direct Products in
the design, development, or production of missiles and missile
technology, nuclear
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
weapons and weapons technology, or chemical and biological weapons; (iii)
restricted end uses: any use of Software Products and Direct Products related to
the design, development, or production of missiles and missile technology,
nuclear weapons and weapons technology, or chemical and biological weapons.
These restrictions may change from time to time. This Section 10.10 shall not be
construed to give Reseller has the right to sell or distribute the Software
Product outside of the Territory.
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION
Wireless Knowledge, Inc. Insynq, Inc
----------------------
/s/ Dave Whalen /s/ James R. Leigh III
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Authorized Signature Authorized Signature
DAVE WHALEN James R. Leigh III
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Printed Name Printed Name
V P President and CTO
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Title Title
10/31/00 10/27/00
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Date Date
Wireless Knowledge
PROPRIETARY & CONFIDENTIAL INFORMATION