EXHIBIT 10.14
SITE DEVELOPMENT AND HOSTING
AGREEMENT
This AGREEMENT, dated as of February 23, 2001 (the "Effective Date"),
is by and between XXXXXXXXXX.XXX, INC., a Minnesota corporation with its
principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000, a wholly owned subsidiary of ENTREPORT CORPORATION, a Florida
corporation with its principal place of business at 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxx X, Xxxxx, Xxxxxxxxxx 00000 (collectively referred to as "XXXXXXXXXX.XXX"),
and GMAC Real Estate, LLC, a Delaware limited liability company, with a place of
business at 0000 Xxxxx Xxx. Xxx Xxxxxx, XX 00000 ("GMACRE").
WHEREAS, XXXXXXXXXX.XXX is in the business of developing and hosting
private-label, on-line training and education websites for use by companies in
training employees, contractors and other service providers;
WHEREAS, GMACRE is engaged in the franchising of real estate brokerage
companies specializing in the marketing of real estate and related services.
WHEREAS, GMACRE desires to engage XXXXXXXXXX.XXX to develop and
implement a customized, on-line education and training program for use by the
owners, brokers, agents and employees of the GMACRE franchised companies
("GMACRE Users"); and
WHEREAS, XXXXXXXXXX.XXX desires to perform such services for GMACRE
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
1.1 "CONFIDENTIAL INFORMATION" shall mean all proprietary
information of a party, including, without limitation, specifications, diagrams,
information, data, materials, prototypes or models relating to a party's
products, services, programs, markets, customers, suppliers, inventions,
procedures, designs, research and development, business plans, pricing
structures, financial projections, organizations, employees, associates or
consultants or any other similar aspects of the present or future business of
either party.
1.2 "COURSES" shall mean the general real estate and
professional business training courses listed on Exhibit A and B, and any
courses developed by XXXXXXXXXX.XXX using the GMACRE Course Content, which shall
be offered to GMACRE Users on the Site.
1.3 "COURSE CONTENT" shall refer collectively to the
XXXXXXXXXX.XXX Course Content, EntrePort Course Content, GMACRE Course Content,
GMACRE Third Party Course Content and XXXXXXXXXX.XXX Third Party Course Content,
and any updates or revisions thereto.
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1.4 "ENTREPORT COURSE CONTENT" shall mean all educational
materials and learning components created by EntrePort Corporation, prior to the
Effective Date, or created by EntrePort and included in the Courses pursuant to
this Agreement, and licensed to GMACRE hereunder.
1.5 "ENTREPORT COURSES" shall mean the just-in-time training
modules containing general real estate and professional training courses listed
on Exhibit B.
1.6 "GMACRE COURSE CONTENT" shall mean all educational
materials and learning components created by GMACRE for the Courses and provided
to XXXXXXXXXX.XXX by GMACRE for inclusion in the Courses.
1.7 "GMACRE COURSE CONTENT ADDENDUM" shall mean the addendum,
in a form substantially similar to Exhibit G, that GMACRE shall provide to
XXXXXXXXXX.XXX from time to time to amend the GMACRE Course Content Schedule and
to authorize and provide additional GMACRE Course Content to XXXXXXXXXX.XXX for
development of Courses incorporating the GMACRE Course Content.
1.8 "GMACRE COURSE CONTENT SCHEDULE" shall mean the schedule
attached hereto as Exhibit F, which will be revised as necessary, pursuant to
which the GMACRE Course Content shall be delivered to XXXXXXXXXX.XXX by GMACRE,
and the fee to be paid by GMACRE to XXXXXXXXXX.XXX for development of Courses
incorporating the GMACRE Course Content shall be paid.
1.9 "GMACRE INTRANET" shall mean GMACRE's secure (accessible
by users with valid user ids and passwords furnished by GMACRE), internal,
intranet website.
1.10 "GMACRE MATERIALS" shall refer collectively to the GMACRE
Course Content and the GMACRE Site Content.
1.11 "GMACRE SITE CONTENT" shall mean GMACRE designs,
trademarks, logos, text, images, graphics and other material provided to
XXXXXXXXXX.XXX by GMACRE for inclusion on the Site in an electronic format
reasonably acceptable to XXXXXXXXXX.XXX.
1.12 "GMACRE THIRD PARTY COURSE CONTENT" shall mean all
educational, technical and other content for the Courses licensed by GMACRE from
a third party that are included in the Site. Inclusion of such content on the
Site is subject to approval by XXXXXXXXXX.XXX per Section 2.6 and subject to
technical integration and feasibility as reasonably determined by
XXXXXXXXXX.XXX.
1.13 "GMACRE USER" shall mean an individual or entity who has
been issued a password by XXXXXXXXXX.XXX, or GMACRE, for access to the Site.
Initially, XXXXXXXXXX.XXX will facilitate the issuance of passwords to the Site
until such time as the security features have been implemented by GMACRE on its
intranet.
1.14 "PRODUCTION DATE" shall mean the date on which the Site
is first available on the GMACRE Intranet for use by all GMACRE Users.
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1.15 "VIRTUAL UNIVERSITY" shall mean XXXXXXXXXX.XXX's
proprietary software for delivering on-line, real estate-specific business
training courses and related course management services.
1.16 "SITE" shall mean the private-label, on-line training and
education website developed and hosted by XXXXXXXXXX.XXX, and accessible via the
GMACRE Intranet.
1.17 "SITE CONTENT" shall mean all text, images, graphics and
other materials on the Site.
1.18 "SPECIFICATIONS" shall mean the functional and design
specifications for the Site set forth in Exhibit C hereto.
1.19 "XXXXXXXXXX.XXX COURSES" shall mean the general real
estate and professional training courses listed on Exhibit A.
1.20 "XXXXXXXXXX.XXX COURSE CONTENT" shall mean all
educational materials and learning components created by XXXXXXXXXX.XXX prior to
the Effective Date, or created by XXXXXXXXXX.XXX and included in the Courses
pursuant to this Agreement, and licensed to GMACRE hereunder.
1.21 "XXXXXXXXXX.XXX MATERIALS" shall mean the XXXXXXXXXX.XXX
Courses, the XXXXXXXXXX.XXX Course Content, and the designs, layout, structure,
sequence, organization, text, images, graphics, audio clips, software and other
material contained on or within the Site, excluding the GMACRE Materials.
1.22 "XXXXXXXXXX.XXX THIRD PARTY COURSE CONTENT" shall mean
all educational, technical and other content for the Courses licensed by
XXXXXXXXXX.XXX from a third party, excluding the GMACRE Content, that are
included in a Course.
1.23 "USER AGREEMENT" shall mean the license agreement
attached hereto as Exhibit D (to be provided), and as may be revised from time
to time, pursuant to which GMACRE Users will access the Site and use the Course
Content.
2. XXXXXXXXXX.XXX OBLIGATIONS; RIGHT OF REMOVAL
Pursuant to the terms of this Agreement, XXXXXXXXXX.XXX shall perform
the following services:
2.1 SITE DESIGN AND CUSTOMIZATION. XXXXXXXXXX.XXX shall design
and customize the Site in accordance with mutually agreeable Specifications.
XXXXXXXXXX.XXX waives the license, setup and private label fee.
2.2 COURSE DEVELOPMENT. XXXXXXXXXX.XXX shall, using the Course
Content, develop the Courses, and make them available to GMACRE Users via the
Site pursuant to the User Agreement. Development of Courses incorporating the
GMACRE Course Material will be authorized by and pursuant to their respective
GMACRE Course Content Addendum.
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2.3 ACCEPTANCE. All Site Design, Customization and Course
Development ("Services") shall at all times be subject to GMACRE's reasonable
satisfaction and approval as provided herein. XXXXXXXXXX.XXX shall provide
GMACRE with reasonably detailed specifications for the Services. GMACRE shall
approve the final Specifications before XXXXXXXXXX.XXX commences the Services.
Thereafter, any changes made by GMACRE to the Specifications shall result in
additional charges to be paid by GMACRE at the rate of $150 per hour to
implement the changes to the Specifications. Upon approval of the final
Specifications, the parties will develop a mutually agreeable production
schedule for the performance of the Services.
2.4 SITE HOSTING. XXXXXXXXXX.XXX shall host the Site on the
server located at its data center in Minneapolis, Minnesota. Commencing on the
Production Date, XXXXXXXXXX.XXX will use commercially reasonable efforts to make
the Site continuously available to GMACRE Users, with the exception of: (a)
scheduled maintenance and required repairs, and (b) any loss or interruption of
hosting services due to causes beyond XXXXXXXXXX.XXX's control, including,
without limitation, interruption or failure related to the GMACRE Intranet, or
telecommunication or digital transmission links, and Internet failures or shut
downs and third party DNS hosting failures. XXXXXXXXXX.XXX will maintain a copy
of the system source code for the Site, updated within 30 days of any changes
being made, at Xxxxx Fargo Bank in Minneapolis, MN in a secured safe deposit
box. This location is subject to change and GMACRE will be provided with written
notice of any such location change within 90 days of such change. Access to the
safe deposit box shall be limited pursuant to a mutually acceptable access
agreement that provides access rights to GMACRE only upon the happening of
certain events.
2.5 SITE MAINTENANCE AND TECHNICAL SUPPORT. XXXXXXXXXX.XXX
will use commercially reasonable efforts to provide GMACRE with reasonable
assistance to maintain and update the Site during the term of this Agreement,
and shall provide standard technical assistance to GMACRE and GMACRE Users in
the operation and use of the Site and the Courses, all in accordance with
Exhibit E hereto. Any additional maintenance services will be provided for a
fee, which shall be negotiated between the parties.
2.6 RIGHT OF REMOVAL AND USER TERMINATION. Upon notice to
GMACRE, XXXXXXXXXX.XXX shall have the right to remove from, or refuse to include
on, the Site, any GMACRE Materials which XXXXXXXXXX.XXX reasonably believes are
unlawful, distasteful or violate the rights of a third party (including, without
limitation intellectual property rights). Upon notice to GMACRE, XXXXXXXXXX.XXX
shall have the right to suspend or terminate the password and account of any
GMACRE User that is in violation of the terms of the User Agreement.
2.7 PROMOTION BY XXXXXXXXXX.XXX. To promote the Site,
XXXXXXXXXX.XXX will provide GMACRE with promotional efforts as more particularly
set forth in Exhibit "H" hereto.
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3. GMACRE OBLIGATIONS.
3.1 DELIVERY OF GMACRE SITE CONTENT. Within 30 days from the
Effective Date, GMACRE shall deliver to XXXXXXXXXX.XXX the GMACRE Site Content
to be included on the Site.
3.2 DELIVERY OF GMACRE COURSE CONTENT AND GMACRE THIRD PARTY
COURSE CONTENT. GMACRE Course Content and GMACRE Third Party Course Content will
be delivered in accordance with the GMACRE Course Content Schedule, as such is
amended from time to time by the GMACRE Course Content Addenda.
3.3 CONTENT CONTROL. GMACRE will be solely responsible for
creating, reviewing and authorizing modifications to the GMACRE Materials.
GMACRE acknowledges that XXXXXXXXXX.XXX is acting as a passive conduit for the
distribution and publishing of the GMACRE Materials. XXXXXXXXXX.XXX has no
obligation, and undertakes no responsibility, to GMACRE to review the GMACRE
Content to determine whether any such content may incur liability by GMACRE to
third parties.
3.4 PROMOTION BY GMACRE. GMACRE will promote the Site as more
particularly set forth in Exhibit "H" hereto.
3.5 EXCLUSIVITY. Except as provided below, GMACRE agrees that
during the Initial Term (as defined below) of this Agreement, XXXXXXXXXX.XXX
shall be GMACRE's exclusive source for online training and online education for
the GMACRE Users and shall have the exclusive rights for development and
management of the GMACRE Site. With regard to web conferencing software and
services, the above exclusivity provisions shall not be applicable.
4. PASSWORD ADMINISTRATION
4.1 EXISTING USERS OF GMACRE INTRANET. GMACRE will provide
XXXXXXXXXX.XXX with all reasonable information requested by it to facilitate the
issuance by XXXXXXXXXX.XXX of passwords for access to the Site to those
individuals who are authorized by GMACRE to use the GMACRE Intranet as of the
Effective Date.
4.2 NEW USERS OF GMACRE INTRANET. With regard to those
individuals not authorized by GMACRE to access the GMACRE Intranet as of the
Effective Date, XXXXXXXXXX.XXX shall provide to GMACRE the source code necessary
for placement by GMACRE of a form on the GMACRE Intranet (the "Registration
Form") for the registration of, and issuance of passwords by XXXXXXXXXX.XXX to,
such individuals. GMACRE may modify the source code for the Registration Form
solely for the purpose of entering user names in the appropriate field. GMACRE
shall immediately submit to XXXXXXXXXX.XXX completed Registration Forms and
XXXXXXXXXX.XXX shall immediately issue to such individuals a password for access
to the Site.
4.3 USER LOG-IN. XXXXXXXXXX.XXX shall provide to GMACRE the
source code necessary for placement of a log-in form ("Log-in Form") on the
GMACRE Intranet by GMACRE in a manner sufficient to facilitate the verification
of GMACRE User information by XXXXXXXXXX.XXX via its database each time a GMACRE
User logs in to the Site. The Log-in Form will be used for access to the Site by
all GMACRE Users. All source code and related materials provided to GMACRE by
XXXXXXXXXX.XXX relating to the Registration Form or the Log-in Form shall
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hereinafter be referred to as the "Registration Materials," and shall be subject
to the terms of Section 5.1. Initially, new users will access the Site through
the XXX.XXXXXXXXXXX.XXX intranet. Thereafter, GMACRE Users may also go directly
to the Site by logging in at XXX.XXXXXX.XXXXXXXXXX.XXX. Until such time as the
security features are implemented on the XXX.XXXXXXXXXXX.XXX intranet,
XXXXXXXXXX.XXX will use commercially reasonably efforts to facilitate the
issuance of passwords to the Site.
4.4 REGISTRATION FOR GMACRE LIVE COURSES. GMACRE offers a
variety of live real estate related courses to the GMACRE Users (the "Live
Courses"). XXXXXXXXXX.XXX shall develop an area on the Site for the GMACRE Users
to register for the Live Courses. GMACRE will provide XXXXXXXXXX.XXX with course
titles, times and locations for the Live Courses that GMACRE elects to post on
the Site as they are scheduled by GMACRE. GMACRE will use that information to
constantly update the registration information. XXXXXXXXXX.XXX will collect
payment from the GMACRE Users for the Live Courses remitting it to GMACRE in
accordance with the payment terms in Section 6.9 minus fifteen percent (15%) of
the total amount paid by the GMACRE User, which will be XXXXXXXXXX.XXX's fee for
this service. XXXXXXXXXX.XXX will provide GMACRE with monthly reports updating
GMACRE on registration for each Live Course. The reports will include, a
breakdown of monies collected from the GMACRE Users, contact information for
each registrant and a running total of the number of registrants for each Live
Course. XXXXXXXXXX.XXX shall also be permitted to list its live seminars in the
Registration area and at the seminars, XXXXXXXXXX.XXX will promote the GMACRE
Center benefits.
5. LICENSE GRANTS.
5.1 XXXXXXXXXX.XXX MATERIALS, XXXXXXXXXX.XXX THIRD PARTY
COURSE CONTENT AND REGISTRATION MATERIALS. Subject to the terms of this
Agreement, XXXXXXXXXX.XXX hereby grants to GMACRE a non-exclusive,
non-transferable, limited license, without right of sublicense, to access,
display and use the Site, the XXXXXXXXXX.XXX Materials, XXXXXXXXXX.XXX Third
Party Course Content and the Registration Materials. GMACRE shall not, and shall
not knowingly allow any third party (including, without limitation any GMACRE
User) to, download or otherwise reproduce or distribute the XXXXXXXXXX.XXX
Materials, the XXXXXXXXXX.XXX Third Party Course Content or the Registration
Materials, or modify, reverse engineer, decompile or disassemble any
XXXXXXXXXX.XXX Materials, the XXXXXXXXXX.XXX Third Party Course Content or the
Registration Materials except as expressly permitted by this Agreement or the
User Agreement. GMACRE shall not allow any third party, with the exception of
GMACRE Users, to access the Site or any XXXXXXXXXX.XXX Materials contained
therein. GMACRE acknowledges and agrees that use of the XXXXXXXXXX.XXX Third
Party Course Content is subject to XXXXXXXXXX.XXX's agreements with its
licensors, and that such licensors may have the right to modify or terminate
XXXXXXXXXX.XXX's right to use and sub-license the XXXXXXXXXX.XXX Third Party
Course Content at any time.
5.2 GMACRE SITE CONTENT. Subject to the terms of this
Agreement, GMACRE hereby grants to XXXXXXXXXX.XXX for the term of this
Agreement, a revocable, nonexclusive, royalty-free worldwide license, without
right of sublicense, to use the GMACRE Site Content, but limited to the use set
forth in this Agreement. GMACRE grants no rights other than explicitly granted
herein, and XXXXXXXXXX.XXX shall not exceed the scope of its license.
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5.3 GMACRE COURSE CONTENT. Subject to the terms of this
Agreement, GMACRE hereby grants to XXXXXXXXXX.XXX for the term of this
Agreement, a revocable, non-exclusive royalty-free worldwide license, without
right of sublicense, to use the GMACRE Course Content, but limited to the use
set forth in this Agreement. XXXXXXXXXX.XXX acknowledges and agrees that use of
the GMACRE Third Party Course Content is subject to GMACRE's agreements with its
licensors, and that such licensors may have the right to modify or terminate
GMACRE's right to use and sublicense the GMACRE Third Party Course Content at
any time.
5.4 TRADEMARK LICENSES.
(a) XXXXXXXXXX.XXX hereby grants to GMACRE, subject to the terms of
this Agreement, a non-exclusive, non-transferable, royalty-free right, without
right of sublicense, to use the XXXXXXXXXX.XXX trademark solely to promote the
use of the Site by GMACRE Users as set forth herein.
(b) GMACRE hereby grants to XXXXXXXXXX.XXX, subject to the terms of
this Agreement, a non-exclusive, non-transferable, royalty-free right, without
right of sublicense, to use the GMAC Real Estate logo and trademarks
(hereinafter "GMACRE trademarks"), but limited to the use set forth in this
Agreement.
6. FEES AND PAYMENT.
All fees payable hereunder will be paid in U.S. Dollars.
6.1 MAINTENANCE AND SUPPORT FEE. XXXXXXXXXX.XXX will not
charge GMACRE for maintenance and support of the Site as set forth herein,
provided the hosting of the Site continues at XXXXXXXXXX.XXX's server in
Minneapolis, MN. In the event that it becomes necessary to co-locate the Site
hosting on any other server, then said fees shall be subject to adjustment, as
mutually and reasonably agreed upon by the parties.
6.2 COURSE DEVELOPMENT FEES. GMACRE shall pay XXXXXXXXXX.XXX a
fee for each developed hour of Course Content created by XXXXXXXXXX.XXX
hereunder, using the GMACRE Course Content provided to XXXXXXXXXX.XXX pursuant
to the GMACRE Course Content Schedule in Exhibit F, as amended from time to time
by various GMACRE Course Content Addenda, Exhibit G. Following an initial ninety
(90) day test period for the Site, GMACRE may, at its option, re-purpose up to
ten (10) hours of existing GMACRE classroom curriculum for delivery over the
Site. GMACRE shall pay XXXXXXXXXX.XXX a flat rate of $30,000 for the first ten
hours of developed Course Content payable as follows: 50% on the execution of
this Addendum and 50% upon delivery of the ten hours of developed Course Content
over the Site. A "developed hour" of content shall be a Course that consists of
10-12 five-minute lessons, depending upon the content and subject matter
thereof. In the event that GMACRE elects to re-purpose the GMACRE classroom
curriculum on a per hour basis, GMACRE shall pay XXXXXXXXXX.XXX the discounted
rate of Four Thousand Dollars ($4,000) per developed hour of Course Content. The
Course development fee for each Course, as set forth in the GMACRE Course
Content Schedule and the GMACRE Course Content Addendum, shall be due and
payable as follows: 50% of the Course development fee on the execution of the
GMACRE Course Content Addendum, and 50% of the Course development fee upon
delivery by XXXXXXXXXX.XXX of the relevant Course to GMACRE.
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6.3 SYSTEM MODIFICATION FEES. From time to time, GMACRE may
request that XXXXXXXXXX.XXX modify the system to meet specific requirements as
identified by GMACRE. In such instance, XXXXXXXXXX.XXX shall provide a proposal
to GMACRE describing the system modifications and proposed fees. The parties
will mutually and reasonably agree upon the terms of such system modifications
and this Agreement shall be amended by the parties in writing to cover such
system modifications.
6.4 UNLIMITED ACCESS FEE. Through the Site, GMACRE Users will
have access to the EntrePort Courses and the XXXXXXXXXX.XXX Courses.
XXXXXXXXXX.XXX will charge the GMACRE Users the discounted rate of $19.95 per
month for access to the Courses as set forth on Exhibit A and B. This fee is
subject to change and special promotions. Courses subject to third party
licensing or royalty fees may be deleted from the Unlimited Access Fee program
and made available on a pay per view basis at XXXXXXXXXX.XXX's sole discretion.
6.5 PAY-PER-VIEW FEE. XXXXXXXXXX.XXX may, for certain Courses,
charge each GMACRE User, pursuant to the terms of the User Agreement, a fee each
time a Course is viewed ("Pay-Per-View Fee").
6.6 PREMIUM TRAINING SERVICES. XXXXXXXXXX.XXX may charge a
GMACRE User an annual fee for access to certain premium training services,
including but not limited to "ask the experts", coaching and individualized
marketing tools. Such annual fees will be equal to or less than XXXXXXXXXX.XXX's
generally published rates for such premium training services.
6.7 CONTINUING EDUCATION FEES. Continuing education content
may be offered on the Site in order to permit GMACRE Users to obtain credit
pursuant to state licensing requirements. All continuing education content
offered on the Site will be provided on a pay-per-credit basis. The rates to be
charged for continuing education content will be equal to or less than
XXXXXXXXXX.XXX's generally published industry rates for such content.
6.8 FREE MEMBERSHIPS. XXXXXXXXXX.XXX agrees to waive the
unlimited access fee to the Courses to twenty five (25) GMACRE Users as chosen
by GMACRE in its sole discretion. Each of these twenty-five (25) GMACRE Users
shall be an actively producing agent. Each GMACRE User selected for the free
access shall agree to provide at least one ten-minute follow-up interview,
during which the GMACRE User will provide information and answers to questions
posed by XXXXXXXXXX.XXX. The information and quotations obtained in the
interview may be used by XXXXXXXXXX.XXX as an endorsement or testimonial as to
the benefits of the Courses.
6.9 REVENUE SHARING COMPENSATION. Commencing with the first
calendar quarter following the Production Date, XXXXXXXXXX.XXX shall pay to
GMACRE a percentage of net Course revenue generated from the Site, including the
Pay-Per-View Fee, Unlimited Monthly Access Fee revenues and the Continuing
Education Fee, collected by XXXXXXXXXX.XXX, less any content license fees,
royalty fees or other payments required to be made for delivery of the Course
Content, as follows (i) 5% for 1 to 5,000 GMAC members, (ii) 10% for 5,001 to
10,000 GMAC members, or (iii) 15% for 10,000 or more GMAC members.
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XXXXXXXXXX.XXX shall also pay GMACRE ten percent (10%) of all
net e-commerce revenue generated from the Site (i.e. the bookstore). E-commerce
revenue includes, but is not limited to, books, tapes, software, programs,
seminars, coaching services, technology products and products offered through
strategic partners.
Such payments to GMACRE shall be due and payable no later than
thirty (30) days after the end of each calendar quarter. Payments due pursuant
to this Section 6.9 shall be accompanied by a report setting forth the number of
current members, Pay-Per-View Fee revenues, Unlimited Monthly Access Fee
revenues and e-commerce revenues received by XXXXXXXXXX.XXX in the preceding
quarter.
XXXXXXXXXX.XXX shall maintain the books and records used to
calculate the payments due to GMACRE under this section during the term of this
Agreement. Said records shall be made available to GMACRE, upon reasonable
notice and during regular business hours, for GMACRE's examination and
inspection.
6.10 TAXES. XXXXXXXXXX.XXX shall, in addition to the payments
required hereunder, pay all applicable sales, use, transfer or other taxes,
however designated, which are levied or imposed by reason of the transaction
contemplated hereunder, if any; excluding, however, income taxes on income which
may be levied against GMACRE. The parties agree that the determination of the
amount of state and local sales and use taxes, if any, the jurisdiction to which
such taxes are to be paid, and any other determinations of a substantive or
procedural nature relating to such taxes, will be the responsibility and
prerogative of XXXXXXXXXX.XXX, in its sole discretion.
All such taxes shall be collected and remitted to the
appropriate state by XXXXXXXXXX.XXX. XXXXXXXXXX.XXX shall have sole
responsibility for the timely payment of all applicable state and local sales
and use taxes, if any, with respect to a GMACRE User's purchases under this
Agreement. XXXXXXXXXX.XXX shall indemnify and hold GMACRE harmless from and
against the amount of any claims, lawsuits or audits by state and local
governmental agencies responsible for collecting sales and use taxes. GMACRE
acknowledges that XXXXXXXXXX.XXX will hold each GMACRE User who purchases
on-line training or continuing education products responsible for payment of all
applicable taxes, if any, in connection with that purchase.
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7. PROPRIETARY RIGHTS.
7.1 XXXXXXXXXX.XXX RIGHTS. Subject to the limited license
granted to GMACRE hereunder, GMACRE acknowledges and agrees, and XXXXXXXXXX.XXX
represents, that XXXXXXXXXX.XXX is the exclusive owner of all proprietary
rights, including but not limited to copyrights, trademarks, patents and trade
secrets, in and to the following
(a) Virtual University and Real Estate University;
(b) the XXXXXXXXXX.XXX Materials;
(c) the Site Content, exclusive of the GMACRE Site
Content;
(d) the Courses, exclusive of the GMACRE Course Content;
and
(e) the Registration Material.
7.2 GMACRE RIGHTS. Subject to the limited license granted to
XXXXXXXXXX.XXX hereunder, XXXXXXXXXX.XXX acknowledges and agrees that GMACRE is
the exclusive owner of all proprietary rights, including but not limited to
copyrights, trademarks, patents and trade secrets, in and to the GMACRE
Materials.
7.3 XXXXXXXXXX.XXX acknowledges and agrees that all GMACRE
Materials developed or prepared for GMACRE by XXXXXXXXXX.XXX utilizing the
GMACRE Course Content or GMACRE Third Party Course Content ("Work Product") are
Confidential Information and shall be considered a work made for hire. GMACRE
shall be the owner of all right, title and interest in and to the Work Product,
including the copyright thereto.
Notwithstanding the foregoing, XXXXXXXXXX.XXX reserves all rights in
and to the XXXXXXXXXX.XXX rights set forth in Section 7.1.
8. TERM AND TERMINATION.
8.1 TERM. This Agreement shall commence on the Effective Date
and shall remain in full force and effect for a period of two (2) years (the
"Initial Term") from and after the Production Date, except as provided in
paragraph 8.2(c) below. Thereafter, this Agreement shall automatically renew for
successive one year terms unless either party shall give written notice to the
other of its intention to terminate the Agreement ("Renewal Term(s)") prior to
the end of the then current term pursuant to this Agreement..
8.2 TERMINATION. This Agreement may be terminated prior to the
expiration hereof as follows:
(a) Either party may terminate this Agreement at any time by giving
notice in writing to the other party if the other party files a petition of any
type as to its bankruptcy, is declared bankrupt, becomes insolvent, makes an
assignment for the benefit of creditors, goes into liquidation or receivership,
or otherwise loses legal control of its business;
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(b) Either party may terminate this Agreement at any time by giving
notice in writing to the other party if the other party is in material breach of
this Agreement, and has failed to cure such breach within thirty (30) days of
the receipt of written notice of breach from the non-breaching party;
(c) At any time following six (6) months from the Production Date,
GMACRE may give six months' notice of its intent to terminate this Agreement
(the "Termination Notice"). In the event that GMACRE elects to serve a
Termination Notice pursuant to this subsection during the time period from six
(6) months to one (1) year following the Production Date, GMACRE shall pay to
XXXXXXXXXX.XXX a termination fee in the amount of $150,000. In the event that
the Termination Notice is served during the time period from one (1) year to two
(2) years following the Production Date, the termination fee shall be $75,000.
The termination fee shall be paid as follows: (i) one-half at the time of
service of the Termination Notice and (ii) one-half at the time of completion of
those items required by Xxxxxxxxxx.xxx to effectuate a disassociation from
GMACRE with regard to the matters covered in this agreement. The termination fee
shall be considered liquidated damages, and not a penalty of any kind.
8.3 RIGHTS AND OBLIGATIONS ON TERMINATION. If this Agreement
is terminated for any reason, the parties shall have the following rights and
obligations:
(a) Termination of this Agreement shall not release either party from
the obligation to make payment of all amounts then or thereafter due and
payable;
(b) All licenses granted pursuant to Article 5, and the respective
licensee's rights and obligations thereunder, shall automatically terminate; and
(c) The parties' respective rights and obligation under Articles 7, and
9 through 12, and Sections 8.3, and 8.4 shall survive termination of this
Agreement.
8.4 NO COMPENSATION. The parties agree that, without prejudice
to any other remedies at law or in equity that either party may have in respect
of any breach of this Agreement, neither party shall be entitled to or claim
that it is entitled to any other compensation or like payment as a result of or
arising out of any termination in accordance with this Article 8, whether
claimed as loss of good will, lost profits, lost investments, or otherwise.
9. CONFIDENTIAL INFORMATION AND USE OF DATA
9.1 OBLIGATION. All Confidential Information shall be deemed
confidential and proprietary to the party disclosing such information hereunder.
Each party may use the Confidential Information of the other party during the
term of this Agreement only as permitted or required for the receiving party's
performance hereunder. The receiving party shall not disclose or provide any
Confidential Information to any third party and shall take reasonable measures
to prevent any unauthorized disclosure by its employees, agents, contractors or
consultants during the term hereof including appropriate individual
nondisclosure agreements. The foregoing duty shall survive any termination or
expiration of this Agreement.
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9.2 EXCLUSIONS. The following shall not be considered
Confidential Information for purposes of this Article 9: (i) information which
is or becomes in the public domain through no fault or act of the receiving
party; (ii) information which was independently developed by the receiving party
without the use of or reliance on the disclosing party's Confidential
Information; (iii) information which was provided to the receiving party by a
third party under no duty of confidentiality to the disclosing party; or (iv)
information which is required to be disclosed by law, provided, however, prompt
prior written notice thereof shall be given to the party whose Confidential
Information is involved.
9.3 TERMS OF AGREEMENT. The parties acknowledge and agree that
the terms of this Agreement are deemed confidential pursuant to this Article 9,
and therefore may not be disclosed without the prior written consent of the
other party, which consent shall not be unreasonably withheld or delayed;
provided however, that any of the parties hereto may disclose such information
when required by applicable law.
9.4 DURATION; SURVIVING OBLIGATION. Each party's obligations
of non-use and non-disclosure of the other party's confidential information
shall apply during the term of this Agreement, and shall also survive for a
period of five (5) years after its termination for any reason.
9.5 USE OF DATA. XXXXXXXXXX.XXX shall not, during the term of
this Agreement sell or rent to any third party, any customer list compiled as a
result of identification of the GMACRE Users, and shall not solicit GMACRE Users
for the sale of any products or services not expressly provided for under this
Agreement without the prior written consent of GMACRE.
10. WARRANTIES
10.1 MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
XXXXXXXXXX.XXX and GMACRE each represent, warrant and covenant to the other
that:
(a) it is a limited liability company duly organized, validly existing
and in good standing under the laws of the state of its formation and has the
requisite power to own its assets and properties and to carry on its business as
now being and heretofore conducted;
(b) the execution, delivery and performance of this Agreement have been
duly authorized, do not violate its certificate of incorporation, by-laws or
similar governing instruments or applicable law and do not, and with the passage
of time will not, materially conflict with or constitute a breach under any
other agreement, judgment or instrument to which it is a party or by which it is
bound;
(c) this Agreement is the legal, valid and binding obligation of such
party, enforceable in accordance with its terms; and
(d) it will not knowingly distribute on the Site any content that (i)
infringes any copyright, patent right, trademark right, publicity right or other
right of any third party, (ii) violates any law or regulation, including without
limitation the laws and regulations governing export control, (iii) is libelous
or defamatory, (iv) is pornographic or obscene, or (v) contains viruses, trojan
horses, worms, time bombs or cancelbots.
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10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF GMACRE.
GMACRE represents, warrants and covenants that:
(a) no authorization, consent or approval of, waiver or exemption by,
or filing or registration with any public body, court, third party or authority
is necessary on the part of GMACRE for the consummation by GMACRE of the
transactions contemplated by this Agreement;
(b) All claims or representations made by or for GMACRE about GMACRE or
any products or services included in the Site will be true and correct (and
shall remain true and correct) and in compliance with all applicable laws and
regulations throughout the term of this Agreement;
(c) the GMACRE Materials do not infringe or violate any copyright,
patent, trademark, trade secret or other rights of any third party; and
10.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
XXXXXXXXXX.XXX. XXXXXXXXXX.XXX represents, warrants and covenants that:
(a) no authorization, consent or approval of, waiver or exemption by,
or filing or registration with any public body, court, third party or authority
is necessary on the part of XXXXXXXXXX.XXX for the consummation by
XXXXXXXXXX.XXX of the transactions contemplated by this Agreement;
(b) the XXXXXXXXXX.XXX Materials do not infringe or violate any
copyright, patent, trademark, trade secret or other rights of any third party;
and
(c) the Site will substantially conform the Specifications;
10.4 DISCLAIMER. Except as provided herein, XXXXXXXXXX.XXX
makes no warranty or representation, either express or implied, that access to
or operation of the Site will be uninterrupted or error free. EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED
WARRANTIES RELATING TO THE SITE OR ITS USE OR FUNCTIONALITY OR THE MATERIALS
PROVIDED HEREUNDER, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. INDEMNIFICATION AND LIMITATION OF LIABILITY
11.1 INDEMNIFICATION BY GMACRE. GMACRE shall defend, indemnify
and hold harmless XXXXXXXXXX.XXX, its officers, agents, directors, and employees
against any and all claims, actions, proceedings, expenses, damages and
liabilities (including, without limitation, reasonable attorneys' fees), arising
out of or in connection with (a) any breach of this Agreement by GMACRE,
including the representations, warranties and covenants herein, (b) the GMACRE
Materials or the GMACRE Intranet, and any use thereof, including without
limitation, any infringement or violation of any trademark, copyright, trade
secret, patent or other proprietary right with respect thereto, and (c) any use
of GMACRE's intellectual property rights permitted herein.
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11.2 INDEMNIFICATION BY XXXXXXXXXX.XXX. XXXXXXXXXX.XXX shall
defend, indemnify and hold harmless GMACRE, its officers, agents, directors, and
employees against any and all claims, actions, proceedings, expenses, damages
and liabilities (including, without limitation, reasonable attorneys' fees),
arising out of or in connection with (a) any breach of this Agreement by
XXXXXXXXXX.XXX, including the representations, warranties and covenants herein,
(b) the XXXXXXXXXX.XXX Materials, and any use thereof, including, without
limitation, any infringement or violation of any trademark, copyright, trade
secret, patent or other proprietary right with respect thereto, and (c) any use
of XXXXXXXXXX.XXX's intellectual property rights permitted herein.
11.3 PROCEDURE FOR INDEMNIFICATION. Whenever an indemnified
party hereunder becomes aware of a claim, suit or proceeding as to which it
believes it is entitled to indemnification under this Article 11, it shall give
notice in writing to the indemnifying party, shall permit the indemnifying party
to assume exclusive control of the defense or settlement of the matter, and
shall provide, at the indemnifying party's expense, all authority, information
and assistance which such party may reasonably request for purposes of such
defense. The indemnified party may engage its own counsel, at its own expense,
to monitor the defense of any such matter.
11.4 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING
UNDER SECTIONS 11.1 (b) AND (c), AND SECTION11.2 (b) AND (c), IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA, INTERRUPTED
COMMUNICATIONS, LOST BUSINESS OPPORTUNITY, FAILURE OF TRANSMISSION SERVICE,
PERSONAL INJURY OR THE LIKE) RESULTING FROM ANY BREACH OF WARRANTY,
REPRESENTATION OR COVENANT OR ANY OTHER TYPE OF CLAIM ARISING FROM OR OUT OF
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LIABILITY ARISING OUT OF CONTRACT,
NEGLIGENCE, AND STRICT LIABILITY IN TORT OR WARRANTY, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. MISCELLANEOUS
12.1 COMMUNICATIONS. Neither party shall (1) use or refer to
in any press release, advertising, publicity, promotion, web site, marketing or
other media or activities, any name, trade name, trademark or servicemark, logo,
or other designation of the other party without such party's prior written
approval; or (2) disclose that the parties have entered into this Agreement,
without the other party's prior written approval, which shall not be
unreasonably withheld.
12.2 DISPUTE RESOLUTION. Except for a breach of the
confidentiality obligations contained in Article 9, any dispute, claim or
controversy arising out of or in connection with this Agreement shall be settled
by final and binding arbitration in San Diego County, California under the then
applicable Commercial Arbitration Rules of the American Arbitration Association
(AAA). Any such arbitration shall be conducted by one (1) arbitrator appointed
by mutual agreement of the parties or, failing such agreement, in accordance
with said Rules.
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12.3 RELATIONSHIP. This Agreement does not make either party
the employee, agent or legal representative of the other for any purpose
whatsoever. Neither party is granted any right or authority to assume or to
create any obligation or responsibility, express or implied, on behalf of or in
the name of the other party. Each party is acting as an independent contractor.
12.4 ASSIGNMENT. Neither party shall have the right to assign
or otherwise transfer its rights and obligations under this Agreement without
the prior written consent of the other party; provided, however, XXXXXXXXXX.XXX
and GMACRE may assign this Agreement, or any rights or obligations hereunder, to
an affiliate, subsidiary or any entity owned or controlled by it or its joint
venture members, or pursuant to merger, consolidation, demutualization, change
of control or corporate reorganization upon notice to the other party. This
Agreement shall be binding upon, and inure to the benefit of, XXXXXXXXXX.XXX and
GMACRE and their successors and permitted assigns. Any prohibited assignment or
transfer shall be null and void.
12.5 NOTICES. Notices permitted or required to be given
hereunder shall be deemed sufficient if given by registered or certified mail,
postage prepaid, return receipt requested, by private courier service, or by
facsimile addressed to the respective addresses of the parties first set forth
above, or at such other addresses as the respective parties may designate by
like notice from time to time. Notices so given shall be effective upon (a)
receipt by the party to which notice is given, or (b) on the fifth (5th) day
following domestic mailing or the tenth (l0th) day following international
mailing, as may be the case, whichever occurs first.
12.6 ENTIRE AGREEMENT. This Agreement, including all Exhibits
hereto which are incorporated herein, constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all proposals,
oral or written, and all negotiations, conversations, and discussions.
12.7 AMENDMENT. This Agreement may not be modified, amended,
rescinded, canceled or waived, in whole or in part, except by written amendment
signed by both parties hereto.
12.8 GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of California, without regard to its
conflicts of laws rules.
12.9 SEVERABILITY. If any provision of this Agreement is found
unenforceable under any laws or regulations applicable thereto, such provision
terms shall be deemed stricken from this Agreement, but such invalidity or
unenforceability shall not invalidate any of the other provisions of this
Agreement.
12.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts and each such counterpart shall be deemed an original hereof.
12.11 WAIVER. No failure by either party to take any action or
assert any right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving rise to such
right.
12.12 REMEDIES. All remedies available to either party
hereunder shall be cumulative in nature, and not exclusive.
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12.13 INDEPENDENT CONTRACTORS. The parties to this Agreement
are independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by this Agreement. Neither
party shall have the power to obligate or bind the other party. Personnel
supplied by XXXXXXXXXX.XXX shall work exclusively for or be under contract to
XXXXXXXXXX.XXX and shall not, for any purpose, be considered employees or agents
of GMACRE. XXXXXXXXXX.XXX assumes full responsibility for the acts of such
personnel while performing services hereunder and shall be solely responsible
for their supervision, direction and control, compensation, benefits and taxes.
12.14 SURVIVAL. All provisions of this Agreement relating to
proprietary rights, confidentiality and non-disclosure, indemnification and
limitation of liability shall survive the completion of the Services or any
termination of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the Effective Date.
XXXXXXXXXX.XXX
By /S/ XXXXXXX X. XXXX
----------------------
Xxxxxxx X. Xxxx,
President
THE GMAC REAL ESTATE , INC.
By /S/ XXXXX X. [ILLEGIBLE]
------------------------
Senior V.P. -- Service
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