EXHIBIT 10.14
Agreement
This agreement, dated August 14. 1995. is between Educational Services Institute
(ESI) and University Online (UOL).
Recitals
1. UOL is in the business of providing training online via its own computer
network (the "UOL Network").
2. ESI currently offers traditional classroom training and would like to expand
its scope to offer courses online.
3. UOL and ESI desire to form a business relationship to of or a number of ESI's
courses online.
Agreement
Course Content
ESI, in association with The Xxxxxx Xxxxxxxxxx University, will license to UOL
particular ESI-owned or controlled course materials (including course manuals.
exams, and handouts) (collectively referred to as the "Works") and make
available to UOL subject matter experts and the authors of such course materials
(if available) on a project specific basis.
Course Content Conversion
UOL will design, develop and otherwise "convert" Works selected jointly by UOL
and ESI into high quality online courses and products ("Courses"), using its
in-house instructional design and programming experts.
Course "Presentation"
ESI hereby grants UOL the right to maintain and distribute or "present" the
Courses on its online network, and wherever reasonably possible. offer as an
adjunct to the Courses hard copy versions of the Works as a licensed
distributor. It is understood that the Works are to be sold to the public and
not to other training providers.
UOL will be responsible for maintaining and presenting the Courses on its
Network, which includes making or maintaining all necessary arrangements with
communications carriers, computer software and hardware suppliers, as necessary.
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* [ ] CONFIDENTIAL TREATMENT REQUESTED; CERTAIN INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SEC.
Marketing
UOL will promote the Courses to its distribution partners and client base.
Specific terms of such distribution are subject to approval by ESI. The Courses
will be promoted using the names of UOL, ESI, and The Xxxxxx Xxxxxxxxxx
University to achieve maximum recognition.
ESI will promote and market the Courses in connection with its traditional Works
offerings through its normal channels to its client base. In addition to its
normal channels, ESI can market in conjunction with UOL over the UOL Network.
ESI will make reasonable space available for descriptions of the Courses in its
catalogs, product lists, and marketing materials.
Pricing
UOL and ESI will jointly determine the prices at which the Courses in the online
format are offered. At this point, it is conceived that customers will pay a
premium for ESI's traditional classroom-taught course offerings and that the
Courses, in their online format will be priced lower. The exact pricing will be
determined later.
Course Registration
Ultimately, the parties expect that students will register and pay for an
Courses on an online basis. Until that time, ESI will be responsible for
registering students and taking payment from students who call, fax, or mail in
their registrations. UOL will be responsible for registering students who chose
to do so online.
Revenue Sharing and Accounting
Gross revenues earned from the Courses and online sale of the Works will be
split using the following formula: ESI [ ]% and UOL [ ]%.* ESI is responsible
for paying royalties from its portion of the revenues to content, accreditation,
and certification providers based on established agreements between them and
ESI.
Ultimately, UOL will be responsible for collecting all revenues, keeping
accounts of revenues earned, and remitting to ESI its share of such revenues.
Until such time that all tuition payments are made and collected on an online
basis, ESI will be responsible for collecting and accounting for payments made
by telephone, fax, or mail. ESI will forward registration information to UOL,
and will remit to UOL, on a monthly, basis its share of revenues collected by
ESI.
UOL will collect and keep account of revenues from students who register online,
and remit to ESI, on a monthly basis, its share of such revenues. Each party
will be responsible for collecting delinquent payments owed them. The parties
expect to xxxx individual students on a per course basis, however, if deemed
more appropriate later, billing could be on an hourly basis, tracked by the
online server. Corporate clients will be billed monthly.
Approval Rights
ESI has the right to participate in the final decision of how the Works are used
in UOL's Courses (i.e., editorial, design, graphics and creative input).
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* [ ] CONFIDENTIAL TREATMENT REQUESTED; CERTAIN INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SEC.
User Support Service
UOL will provide support services and respond to user questions using its
standard operating procedures.
Intellectual Property Rights
UOL and ESI will share copyrights and full distribution rights to the Courses
and any derivative online or interactive versions of the Courses developed under
the partnership.
ESI will own or control the copyrights to all the Works from which the online
Course version will be derived.
Mutual Non-compete
After the termination or expiration of this agreement, UOL may not develop or
distribute online courses based on or incorporating Works without a license from
ESI.
During the term of this agreement and for three years thereafter, ESI and its
affiliates will not themselves or with others develop, distribute any online
product that incorporates, builds upon, or contemplates content and
instructional design from the Courses developed under the partnership and where
online distribution rights are licensed to UOL by ESI.
Governing Law
This agreement is governed by the laws of the Commonwealth of Virginia.
In witness whereof, the parties have signed this agreement this day of August,
1995.
Educational Services Institute University Online
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By: By:
Agreement
This Agreement is between University Online, Inc. (UOL), a company having
offices at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000, and
Educational Services Institute (ESI), a company having offices at 0000 Xxxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000. UOL and ESI hereby agree as
follows:
ARTICLE 1--INTENT
UOL is in the business of developing, publishing, and distributing multimedia
educational software for distance learning, including providing online resources
and technology to institutions of higher learning in order to facilitate their
provision of online courses and programs. UOL desires to promote and offer
ESI-owned or -controlled courses as "Online Courses" (distance learning course
offerings) via the Internet. ESI desires to deliver certain ESI-owned or
controlled courses as UOL Online Courses. The parties desire to work together to
develop, deliver, and market such Online Courses. The parties recognize that
opportunities may evolve where UOL can offer ESI owned or controlled courses
through UOL clients intranets. The parties agree to pursue such opportunities as
long as they do not conflict with other ESI contracts and/or agreements.
ARTICLE 2-IDENTIFICATION OF COURSES FOR ONLINE DEVELOPMENT AND DELIVERY
ESI, with input from and concurrence by UOL, will identify the courses owned or
controlled by ESI to be delivered as Online Courses. Such courses will be
specifically set forth in Addenda to this Agreement. The initial courses to be
developed and delivered as Online Courses are set forth in Addendum 1.
Each such Addendum to this Agreement may contain terms and conditions specific
to the development, delivery, licensing, or ownership rights and/or marketing of
the Online Courses covered by the Addendum. In the case of any conflict between
those terms and conditions and the terms and conditions set forth in this
Agreement, the specific terms and conditions in the Addendum shall govern.
ARTICLE 3-ROLES IN THE DEVELOPMENT OF ONLINE COURSES
For each course set forth by Addendum to this Agreement, UOL will be responsible
for designing and developing, or engaging third parties to design and develop,
an effective, interactive Online Course that meets course objectives mutually
agreed upon by the parties and complies with an agreed upon written development
plan. This plan will be developed mutually, or by or at the direction of UOL. It
will be signed by both parties and any third parties and will incorporate a
development and production schedule.
For each Online Course, ESI will be responsible for providing UOL the most
current print or digital version of the classroom training course materials, to
serve as the basis for development of the Online Course. In addition, ESI will
assign a subject matter expert or experts to work with UOL on each Online Course
and will assist UOL as necessary in arranging any interviews with or surveys of
ESI students or clients. ESI will also provide
* [ ] CONFIDENTIAL TREATMENT REQUESTED; CERTAIN INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SEC.
access to its training facilities and administrative support should UOL desire
to video or audio record any ESI-owned or controlled course to be delivered as
an Online Course.
For each course being developed as an Online Course, UOL will be responsible for
providing to ESI in writing, for its review and approval, a preliminary product
description, final product description, and storyboards and/or scripts in
accordance with the development plan. UOL will also be responsible for
developing an online prototype of a representative Online Course module, for
review and beta testing prior to online development of the remainder of the
modules. ESI will be responsible for the timely review of each such deliverable,
in accordance with the schedule set forth in the product development plan, as
well as for working closely with UOL to arrange beta test sites.
ESI will have the right to review and finally approve all OnLine Course modules,
in adherence with the schedule contained in the development plan.
ARTICLE 4-COST SHARING FOR DEVELOPMENT OF ONLINE COURSES
ESI will be fully responsible for the compensation of all ESI employees who
serve as subject matter experts or play any other role in the development of
Online Courses under this Agreement. UOL will be responsible for all other
Online Course development costs, including the compensation of subject matter
experts who are not ESI employees and of any third-party course developers.
ARTICLE 5-ROLES IN ONLINE COURSE DELIVERY, MAINTENANCE, AND MANAGEMENT
UOL will be responsible for creating and maintaining a connection to the
Internet that can be accessed by students and prospective students to inquire
about, register for, and complete all Online Courses, as well as otherwise
interact via computer with UOL and ESI. UOL will facilitate online and other
communication between students and ESI staff, including passing along inquiries
and queries. UOL will work with ESI staff as necessary to accurately track all
registrations and corresponding payments.
ESI staff will handle all student registrations received by phone, fax, or mail,
as opposed to online. Until such time as UOL's network can accept tuition
payment online, ESI will collect and account for all tuition payments. ESI will
also make available instructors or other staff to respond to students' course
content-related inquiries, grade exams online, moderate online discussions, or
otherwise interact with students via computer as agreed upon by the parties in
the product description or product development plan for the Online Course in
question.
The parties will jointly, develop an online evaluation form that elicits student
feedback on each Online Course developed and delivered. UOL will be responsible
for maintaining these forms on its network as part of the Online Course
materials. for tabulating any numerical scores elicited by the forms, and for
providing, ESI, in a timely manner, these tabulations and any other feedback
received. UOL and ESI will jointly determine any changes, upgrades, or updates
to be made to an Online Course based on student feedback or other input, and UOL
will be responsible for the online implementation of those changes.
ARTICLE 6-COST SHARING FOR ONLINE COURSE DELIVERY, MAINTENANCE, AND MANAGEMENT
Each party will be responsible for the costs it incurs in carrying out the
responsibilities set forth in Article 5.
ARTICLE 7-ROLES IN PROMOTING AND ADVERTISING ONLINE COURSES
UOL will maintain up-to-date information on all Online Courses at its web site
and will create links to and from other web sites as mutuallv agreed in writing
by the parties. UOL will also actively market the Online Courses to its
distribution partners as appropriate.
ESI will actively market the Online Courses to its client base through course
catalogs, brochures, and other print pieces and at trade shows and conferences.
Should the parties elect to engage a third party to help market the Online
Courses, that third party will be compensated at a rate agreed upon by the
parties in writing and the parties will share equally in the cost of such
compensation.
ESI will be notified in advance and must approve in writing any marketing
through a third party.
ARTICLE 8-COST SHARING FOR PROMOTING AND ADVERTISING ONLINE COURSES
Each party will be responsible for the costs it incurs in carrying out the
responsibilities set forth in Article 7.
ARTICLE 9-USE OF NAMES
UOL agrees to obtain written approval from ESI before using "Educational
Services Institute, ESI, ESI International," "The Xxxxxx Xxxxxxxxxx University,"
the name of any Xxxxxx Xxxxxxxxxx University School, or any derivative or
abbreviated form of the names of these entities (such as "ESI," "GW," or
official logos), or of any other college or university with which ESI
establishes a relationship in any promotional or financial presentation or in
any other format, written or otherwise, that will be publicly disseminated by
UOL.
ESI agrees to obtain written approval before using "Universitv Online," "UOL,"
or any derivative or abbreviated form in any promotional or financial
presentation or in any other format, written or otherwise, that will be publicly
disseminated by ESI.
UOL's name will appear in connection with the Online Courses as a conduit rather
than as the courses' official sponsor.
ARTICLE 10-COPYRIGHTS AND LICENSES
ESI owns or controls the copyright to the course materials for all courses to be
developed, delivered, and marketed as Online Courses under this Agreement. ESI
will own the copyright for the CD-ROM developed for the Managing Project in
Organizations course and UOL will have a royalty-free license for use in support
of internet based course offerings. Copyright ownership for other CD-ROMs will
be negotiated on a case-by-case basis. ESI is solely responsible for obtaining
and paying for any third-party copyright
licenses for ESI-controlled course materials where ESI does not own the
copyright. ESI grants UOL a no-cost license to use ESI-owned or controlled
course materials in developing, and delivering Online Courses. This license is
valid during the life of this Agreement and may not be transferred, assigned, or
sold to a third party.
ARTICLE 11-PROTECTION OF ONLINE COURSE CONTENT
UOL agrees to provide and maintain the most effective security technology
reasonably available to UOL in order to protect Online Course content. UOL will
keep ESI apprised quarterly in writing of the security technology being used and
of any known or suspected breaches of security regarding Online Course content.
ARTICLE 12-PROPRIETARY RIGHTS
ESI will own the mailing lists, student rosters, advertising and promotional
materials, and any other ancillary products or assets created or generated in
connection with the delivery and marketing of the Online Courses. Customer lists
generated at the effort and expense of UOL from outside sources will be owned by
UOL.
ARTICLE 13-CERTIFICATION OR ACCREDITATION OF ONLINE COURSES
ESI will use reasonable efforts to obtain certification and/or accreditation for
each Online Course based on a classroom course for which ESI has previously
obtained certification or accreditation.
ARTICLE 14-PRICING
ESI and UOL will jointly determine in writing the prices at which Online Courses
are offered. Such prices will take into account the prices charged for classroom
delivery of the courses.
ARTICLE 15-REVENUE COLLECTION, REVENUE SHARING, AND ROYALTY PAYMENTS
ESI will be responsible for accounting for all tuition payments received by mail
or fax. UOL will be responsible for accounting for all tuition payments received
online. Each party will be responsible for remitting to the other party, on the
first of each month, the other party's share of the Gross Revenues received.
Such remittances will be based on Gross Revenues received during the month prior
to the month just ended (e.g., March 1 remittances will be based on Gross
Revenues received during January).
Gross revenues for each Online Course will be shared as follows:
Gross Revenues attributable to the first 100 [ ]% to UOL [ ]% to ESI
registrations
Gross Revenues attributable to registrations [ ]% to UOL [ ]% to ESI
after the first 100
UOL's will receive an additional [ ]% of Gross Revenues ([ ]% for the first 100
registrations, [ ]% for registrations above 100) for each participant brought
into the Online Courses as a direct result of UOL's own marketing efforts.* UOL
shall provide written data (contracts, purchase orders, etc.) as evidence of
their marketing efforts.
* [ ] CONFIDENTIAL TREATMENT REQUESTED; CERTAIN INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SEC.
ESI will be responsible for paying royalties from its portion of the Gross
Revenues to content, accreditation, or certification providers, based on
existing and newly obtained agreements between those providers and ESI.
ARTICLE 16-RIGHT TO AUDIT
Each party will have the right to audit, at any time during the life of this
Agreement, the other party's records of Online course tuition payments received.
ARTICLE 17-EXCLUSIVITY OF RELATIONSHIPS
UOL agrees not to take any action that could deteriorate the long-term
relationship ESI enjoys with The Xxxxxx Xxxxxxxxxx University and its Schools.
ESI agrees that it shall develop, deliver, and market Online Courses exclusively
with UOL for the term of this Agreement.
UOL agrees that it shall develop, deliver, and market the Online Courses
exclusively with ESI for the term of this Agreement.
ARTICLE 18-AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by mutual agreement of the parties. All amendments
to the agreement will be made in writing.
ARTICLE 19-DURATION OF THIS AGREEMENT
This Agreement will be in effect for five years from the date hereof, unless
terminated sooner pursuant to the terms set forth in Article 20. At the
expiration of this initial five-year term, the Agreement will renew
automatically for one-year terms unless terminated pursuant to the terms set
forth in Article 20.
ARTICLE 20-TERMINATION OF THIS AGREEMENT
This Agreement may be terminated as follows:
a. Either party may terminate the Agreement by giving 90 days' notice of its
intent to terminate at the end of the initial five-year term or at the end
of any successive one-year term.
b. The agreement may be terminated by either party upon written notice to the
other party that a material provision of this Agreement has been breached,
and the other party's failure to cure that breach within 90 days of receipt
of such notice.
c. Any party affected by an event of bankruptcy will immediately give notice of
this event to the other party, and the other party may, at its option,
terminate this agreement upon written notice. For purposes of this
Agreement, an event of bankruptcy is defined as the adjudging of the
affected party to be insolvent or bankrupt; the institution of any,
proceedings seeking relief, reorganization, or arrangement under any laws
relating to insolvency; the filing of any involuntary
petition in bankruptcy that is not discharged within 60 days after filing;
the assignment for the benefit of the party's creditors, or the appointment
of a receiver, liquidator, or trustee of any of the party's assets; or the
liquidation, dissolution, or winding up of the party's business.
d. The agreement may be terminated at any time by the mutual agreement of the
parties, expressed in a written document signed by both parties.
ARTICLE 21-NOTICES
All notices hereunder will be given in writing at the addresses set forth above.
The parties will promptly notify each other in writing of any change of address.
Notice given by express courier requiring signature upon delivery will be deemed
delivered on the day of receipt by someone who signs on behalf of the notified
party.
ARTICLE 22-ARBITRATION
Any claim, dispute, or controversy arising out of or in connection with or
relating to this Agreement or the breach or alleged breach of this Agreement,
will be solely and finally settled by arbitration as herein provided. Except as
they may be modified by the parties' mutual agreement, the commercial
arbitration rules of the American Arbitration Association (the "Rules") will
govern any arbitration contemplated by this article. The arbitration shall be
conducted where best suited for the resolution of the dispute in light of the
convenience of the parties and their documents and witnesses. The arbitration
will be conducted by one arbitrator who will be selected in accordance with the
Rules. Nothing herein limit the right of either party to seek to obtain in any
court of competent jurisdiction any interim relief or provisional remedy,
including injunctive relief. Seeking or obtaining such interim relief or
provisional remedy in a court will not be deemed a waiver of this agreement to
arbitrate. Any award rendered by the arbitrator shall be final and not subject
to judicial review. Judgment on the award of the panel may be entered, and the
prevailing party may seek enforcement thereof, in any court having jurisdiction
over the parties or their assets.
ARTICLE 23-INDEMNIFICATION AND INFRINGEMENT
Each party agrees to indemnify, defend, and save harmless the other party, its
respective subsidiaries, other affiliates, its direct and indirect customers,
and the officers, directors, employees, successors, and assigns of any of them
from and against claims, losses, damages, expenses, liabilities, suits, demands,
or liens that arise out of or result from:
a. Any failure by the other party to perform its obligations under this
Agreement; and,
b. Any, alleged act of infringement of any patent, trademark, copyright, or
other right or any misappropriation (including misuse) of any trade secret
or other proprietary interest, except where such infringement or
misappropriation arises solelv from the other party's adherence to the one
party's written instructions which are so specific as to directly cause such
infringement or misappropriation, in which case the one party shall so
indemnify the other party.
c. Each party shall notify the other promptly of any claim for which the other
is responsible hereunder, and shall cooperate with the other in every
reasonable way to facilitate the defense of any such claim.
ARTICLE 24 EXPRESS WRITTEN APPROVAL
UOL agrees to obtain express written approval from ESI prior to offering any
ESI-owned or controlled course materials or any derivative Online Course as part
of an agreement with another university, college, or other educational
institution or with any other UOL customer or partner.
ARTICLE 25-ASSIGNABILITY
This Agreement may not be assigned, sublicensed, or transferred by either party
without the prior written consent of the other party.
ARTICLE 26-GOVERNING LAW
This Agreement shall be interpreted, construed, and enforced in accordance with
the laws of the Commonwealth of Virginia, without regard to the choice of law
rules of that state.
IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto
have executed this Agreement in duplicate on the day and year written below.
Educational Services Institute University Online, Inc.
By: /s/ By: /s/
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Xxxxx X. Xxxxxx Xxxx Xxxxx
Vice President President
Date: 9-11-96 Date: 9-4-96
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