EXHIBIT 10.13
SITE DEVELOPMENT AND HOSTING
AGREEMENT
This AGREEMENT, dated as of November 8, 1999 (the "Effective Date"), is
by and between KNOWLEDGENT CORPORATION, D/B/A XXXXXXXXXX.XXX, a Minnesota
corporation with its principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxxx 00000 ("XXXXXXXXXX.XXX"), and COLDWELL BANKER REAL
ESTATE CORPORATION, a California corporation with its principal place of
business at 0 Xxxxxx Xxx, Xxxxxxxxxx, XX 00000 ("CB").
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, CB desires to engage XXXXXXXXXX.XXX to develop and implement a
customized, on-line education and training program for use by CB brokers and
agents ("CB Users"); and
WHEREAS, XXXXXXXXXX.XXX desires to perform such services for CB 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, programs, markets, customers, suppliers, inventions, procedures,
designs, research and development, business plans, financial projections,
organizations, employees 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 any courses
developed by XXXXXXXXXX.XXX using the CB Course Content, which shall be offered
to CB Users on the Site.
1.3 "COURSE CONTENT" shall refer collectively to the
XXXXXXXXXX.XXX Course Content, CB Course Content and Third Party Course Content,
and any updates or revisions thereto.
1.4 "CB COURSE CONTENT SCHEDULE" shall mean the schedule
attached hereto as Exhibit E, pursuant to which the CB Course Content shall be
delivered to XXXXXXXXXX.XXX by CB, and the fee to be paid by CB to
XXXXXXXXXX.XXX for development of Courses incorporating the CB Course Content
shall be paid.
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1.5 "CB COURSE CONTENT ADDENDUM" shall mean the addendum, in a
form substantially similar to Exhibit F, that CB shall provide to XXXXXXXXXX.XXX
from time to time to amend the CB Course Content Schedule and to authorize and
provide additional CB Course Content to XXXXXXXXXX.XXX for development of
Courses incorporating the CB Course Content.
1.6 "PRODUCTION DATE" shall mean the date on which the Site is
first available on the CB Intranet for use by all CB Users.
1.7 "REAL ESTATE UNIVERSITY" shall mean XXXXXXXXXX.XXX's
proprietary software for delivering on-line, real estate-specific business
training courses and related course management services.
1.8 "CB COURSE CONTENT" shall mean all educational materials
and learning components created by CB for the Courses and provided to
XXXXXXXXXX.XXX by CB for inclusion in the Courses.
1.9 "CB MATERIALS" shall refer collectively to the CB Course
Content and the CB Site Content.
1.10 "CB INTRANET" shall mean CB's secure, internal,
company-wide network.
1.11 "CB SITE CONTENT" shall mean CB designs, trademarks,
logos, text, images, graphics, audio clips, and other material provided to
XXXXXXXXXX.XXX by CB for inclusion on the Site.
1.12 "CB USER" shall mean an individual who has been issued a
password by XXXXXXXXXX.XXX for access to the Site.
1.13 "SITE" shall mean the private-label, on-line training and
education website developed and hosted by XXXXXXXXXX.XXX, and accessible via the
CB Intranet.
1.14 "SITE CONTENT" shall mean all text, images, graphics and
other materials on the Site.
1.15 "SPECIFICATIONS" shall mean the functional and design
specifications for the Site set forth in Exhibit B hereto.
1.16 "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 CB Content, that are included in a Course.
1.17 "XXXXXXXXXX.XXX Courses" shall mean the general real
estate and professional training courses listed on Exhibit A.
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1.18 "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 CB hereunder.
1.19 "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, and other material
contained on or within the Site, excluding the CB Materials.
1.20 "USER AGREEMENT" shall mean the license agreement
attached hereto as Exhibit C (or any replacement therefore provided by
XXXXXXXXXX.XXX to CB), pursuant to which CB 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
the Site, and customize Real Estate University in accordance with the
Specifications.
2.2 COURSE DEVELOPMENT. XXXXXXXXXX.XXX shall, using the Course
Content, develop the Courses, and make them available to CB Users via the Site
pursuant to the User Agreement. Development of Courses incorporating the CB
Course Material will be authorized by and pursuant to their respective CB Course
Content Addendum.
2.3 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 CB 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 CB Intranet, or
telecommunication or digital transmission links, and Internet failures or shut
downs. CB acknowledges and agrees that XXXXXXXXXX.XXX makes no representation
that access to the Site will be uninterrupted or error free.
2.4 SITE MAINTENANCE AND TECHNICAL SUPPORT. XXXXXXXXXX.XXX
will use commercially reasonable efforts to provide CB with assistance to
maintain and update the Site during the term of this Agreement, and shall
provide standard technical assistance to CB and CB Users in the operation and
use of the Site and the Courses, all in accordance with Exhibit D hereto. Any
additional maintenance services will be provided for a fee that shall be
negotiated between the parties.
2.5 RIGHT OF REMOVAL AND USER TERMINATION. CB acknowledges and
agrees that XXXXXXXXXX.XXX shall have the right to remove from, or refuse to
include on, the Site, any CB Materials which XXXXXXXXXX.XXX believes are
unlawful, distasteful or violate the rights of a third party (including, without
limitation intellectual property rights). CB further acknowledges and agrees
that XXXXXXXXXX.XXX shall have the right to suspend or terminate the password
and account of any CB User that is in violation of the terms of the User
Agreement.
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3. CB OBLIGATIONS.
3.1 DELIVERY OF CB SITE CONTENT. Within 7 days from the
Effective Date, CB shall deliver to XXXXXXXXXX.XXX the CB Site Content to be
included on the Site.
3.2 DELIVERY OF CB COURSE CONTENT. CB Course Content will be
delivered in accordance with the CB Course Content Schedule, as such is amended
from time to time by the CB Course Content Addendums.
3.3 CONTENT CONTROL. CB acknowledges and agrees that it will
be solely responsible for creating, reviewing, and authorizing modifications to,
the CB Materials. CB acknowledges that XXXXXXXXXX.XXX is acting as a passive
conduit for the distribution and publishing of the CB Materials. XXXXXXXXXX.XXX
has no obligation to CB, and undertakes no responsibility, to review the CB
Content to determine whether any such content may incur liability to third
parties.
4. PASSWORD ADMINISTRATION.
4.1 EXISTING USERS OF CB INTRANET. CB will provide
XXXXXXXXXX.XXX with all 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 CB to use the CB Intranet as of the Effective Date.
4.2 NEW USERS OF CB INTRANET. With regard to those individuals
not authorized by CB to access the CB Intranet as of the Effective Date,
XXXXXXXXXX.XXX shall provide to CB the source code necessary for placement by CB
of a form on the CB Intranet (the "Registration Form") for the registration of,
and issuance of passwords by XXXXXXXXXX.XXX to, such individuals. CB may modify
the source code for the Registration Form solely for the purpose of entering
user names in the appropriate field. CB shall immediately submit to
XXXXXXXXXX.XXX completed Registration Forms, and XXXXXXXXXX.XXX shall issue to
such individuals a password for access to the Site.
4.3 USER LOG-IN. XXXXXXXXXX.XXX shall provide to CB the source
code necessary for placement of a log-in form ("Log-in Form") on the CB Intranet
by CB in a manner sufficient to facilitate the verification of CB User
information by XXXXXXXXXX.XXX via its database each time an CB User logs in to
the Site. The Log-in Form will be used for access to the Site by all CB Users.
All source code and related materials provided to CB by XXXXXXXXXX.XXX relating
to the Registration Form or the Log-in Form shall hereinafter be referred to as
the "Registration Materials," and shall be subject to the terms of Section 5.1.
5. LICENSE GRANTS.
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5.1 XXXXXXXXXX.XXX MATERIALS, THIRD PARTY COURSE CONTENT AND
REGISTRATION MATERIALS. Subject to the terms of this Agreement, XXXXXXXXXX.XXX
hereby grants to CB a non-exclusive, non-transferable, limited license, without
right of sublicense, to access, display and use the Site, the XXXXXXXXXX.XXX
Materials, Third Party Course Content and the Registration Materials. CB shall
not, and shall not allow any third party (including, without limitation any CB
User) to, download or otherwise reproduce or distribute the XXXXXXXXXX.XXX
Materials, the Third Party Course Content or the Registration Materials, or
modify, reverse engineer, decompile or disassemble any XXXXXXXXXX.XXX Materials,
the Third Party Course Content or the Registration Materials except as expressly
permitted by this Agreement or the User Agreement. CB shall not allow any third
party, with the exception of CB Users, to access the Site or any XXXXXXXXXX.XXX
Materials contained therein. CB acknowledges and agrees that use of the 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 Third Party Course Content at
any time. CB shall abide by the terms of XXXXXXXXXX.XXX's agreements with its
licensors for the Third Party Course Content as long as CB is provided copies of
such Third Party Course Content agreement.
5.2 CB SITE CONTENT. Subject to the terms of this Agreement,
CB hereby grants to XXXXXXXXXX.XXX for the term of this Agreement, a
nonexclusive, royalty-free worldwide license to use, reproduce, distribute,
publicly perform, publicly display and modify the CB Site Content in connection
with the development, hosting and maintenance of the Site and services performed
by XXXXXXXXXX.XXX hereunder.
5.3 CB COURSE CONTENT. Subject to the terms of this Agreement,
CB hereby grants to XXXXXXXXXX.XXX for the term of this Agreement, an exclusive
royalty-free worldwide license to use, reproduce, distribute, publicly perform,
publicly display and modify the CB Course Content in connection with
XXXXXXXXXX.XXX's performance of its obligations hereunder.
5.4 ACCESS TO CB INTRANET. Subject to the terms of this
Agreement, CB hereby grants to XXXXXXXXXX.XXX a non-exclusive license to access
the CB Intranet for the sole purpose of hosting and maintaining the Site, and
performing the services, pursuant to this Agreement.
5.5 TRADEMARK LICENSES.
(a) XXXXXXXXXX.XXX hereby grants to CB, 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 CB Users as set forth herein.
(b) CB hereby grants to XXXXXXXXXX.XXX, subject to
the terms of this Agreement, a non-exclusive, non-transferable (unless otherwise
set forth herein), royalty-free right, without right of sublicense, to use the
Coldwell Banker trademark solely in connection with the performance of its
obligations hereunder.
6. FEES AND PAYMENT. All fees payable hereunder will be paid in U.S.
Dollars.
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6.1 SITE DEVELOPMENT AND LICENSE FEE. CB shall pay to
XXXXXXXXXX.XXX Twenty Five Thousand Dollars ($25,000) for the development of the
Site and the provision of the XXXXXXXXXX.XXX Courses to the CB Users via the
Site pursuant to the User Agreement. This fee shall be due and payable as
follows: Twelve Thousand Five Hundred Dollars ($12,500) on the Effective Date,
and Twelve Thousand Five Hundred dollars ($12,500) on the Production Date.
6.2 MAINTENANCE AND SUPPORT FEE. CB shall pay to
XXXXXXXXXX.XXX Four Thousand Dollars ($4,000) for maintenance and support of the
Site as set forth herein, which amount shall be due and payable on the first day
of each ninety (90)-day period following the Effective Date. For any Renewal
Term of this Agreement, such quarterly fees shall be subject to annual review
and adjustment.
6.3 COURSE DEVELOPMENT FEES. CB shall pay XXXXXXXXXX.XXX a fee
for each developed hour of Course Content created by XXXXXXXXXX.XXX hereunder,
using the CB Course Content provided to XXXXXXXXXX.XXX pursuant to the CB Course
Content Schedule in Exhibit E, as amended from time to time by various CB Course
Content Addendums. Such fee shall vary depending on the content category,
determined in the sole discretion of XXXXXXXXXX.XXX. 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. The Course development fee, as set
forth in the CB Course Content Schedule and the CB Course Content Addendum,
shall be due and payable as follows: 50% of the Course development fee on the
execution of the CB Course Content Addendum, and 50% of the Course development
fee upon delivery by XXXXXXXXXX.XXX of the relevant Course to CB.
6.4 SYSTEM MODIFICATION FEES. CB shall pay XXXXXXXXXX.XXX a
fee, to be determined as outlined in Exhibit G, for the execution of System
Modifications, as described in Exhibit G.
6.5 PAY-PER-VIEW FEE. XXXXXXXXXX.XXX may, for certain Courses,
charge each CB User, pursuant to the terms of the User Agreement, a fee each
time a Course is viewed ("Pay-Per-View Fee").
6.6 REVENUE SHARING COMPENSATION. Commencing with the first
calendar quarter of 2000, XXXXXXXXXX.XXX shall pay to CB ten percent (10%) of
the Pay-Per-View Fee revenues, net of any content license fees, collected by
XXXXXXXXXX.XXX for any Courses listed on Exhibit A. Commencing with the first
calendar quarter of 2000, XXXXXXXXXX.XXX shall also pay to CB ten percent (10%)
of any advertising revenues received by XXXXXXXXXX.XXX, net of any commission
paid in relation to the advertising revenues from the Site. Finally,
XXXXXXXXXX.XXX shall pay to CB twenty five percent (25%) of the Pay-Per-View Fee
revenues collected by XXXXXXXXXX.XXX for any Courses incorporating the CB Course
Content. Such payments to CB shall be due and payable no later than thirty (30)
days after the end of each calendar quarter. Payments due pursuant to this
Section 6.5 shall be accompanied by a report setting forth the Pay-Per-View Fee
revenues and advertising revenues received by XXXXXXXXXX.XXX in the preceding
quarter.
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6.7 AUDIT. XXXXXXXXXX.xxx shall keep accurate and complete
records of all Revenue Sharing Compensation pursuant to Pay-Per-View Orders. All
such records and all accounting systems with respect thereto shall be available
for inspection, copy and audit by CB or its representatives, no more than once
every year, on reasonable notice to XXXXXXXXXX.XXX during normal business hours
throughout the term of this Agreement and for one year (1) thereafter.
XXXXXXXXXX.XXX shall fully cooperate with CB in such inspection and audit.
Neither CB's acceptance of any information nor CB's inspection or audit of any
XXXXXXXXXX.XXX's records shall waive CB's right later to dispute the accuracy or
completeness of any information supplied by XXXXXXXXXX.XXX. In the event any
such audit establishes an underpayment of Revenue Sharing Compensation,
XXXXXXXXXX.XXX shall pay the amount of the deficit within five (5) business days
of notification of such deficiency. In the event such audit identifies an
overpayment of Revenue Sharing Compensation, such overpayment shall be a credit
against future Revenue Sharing Compensation to become due from XXXXXXXXXX.XXX to
CB (provided that if no such Revenue Sharing Compensation become due during the
90 days following the identification of such overpayment, CB shall remit the
full amount of such overpayment to XXXXXXXXXX.XXX). If an audit establishes an
underpayment of Revenue Sharing Compensation greater than five percent (5%) of
the total Revenue Sharing Compensation then due and payable to CB,
XXXXXXXXXX.XXX shall pay for the costs and expenses of such audit. In the event
of a dispute over the result of any such audit, the amount so disputed shall be
deposited by the party to be charged with an escrow agent acceptable to both
Parties and pursuant to an escrow agreement acceptable to both parties and such
escrow agent shall retain the disputed amount until such time as the dispute is
resolved.
7. PROPRIETARY RIGHTS.
7.1 XXXXXXXXXX.XXX RIGHTS. Subject to the limited license
granted to CB hereunder, CB acknowledges and agrees 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) Real Estate University;
(b) the XXXXXXXXXX.XXX Materials;
(c) the Site Content, exclusive of the CB Site
Content;
(d) the Courses, exclusive of the CB Course
Content; and
(e) the Registration Material.
7.2 CB RIGHTS. Subject to the limited license granted to
XXXXXXXXXX.XXX hereunder, XXXXXXXXXX.XXX acknowledges and agrees that CB is the
exclusive owner of all proprietary rights, including but not limited to
copyrights, trademarks, patents and trade secrets, in and to the CB Materials.
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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 three (3) years.
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;
(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 (including, without limitation, any failure to
manufacture or supply the Products as provided herein), and has failed to cure
such breach within thirty (30) days of the receipt of written notice of breach
from the non-breaching party;
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 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 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.
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 CB Users, and shall not solicit CB Users for the
sale of any products or services not expressly provided for under this Agreement
without the prior written consent of CB.
10. WARRANTIES.
10.1 MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
XXXXXXXXXX.XXX and CB each represent, warrant and covenant to the other that:
(a) it is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and has the corporate 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 CB. CB
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 CB for the consummation by CB of
the transactions contemplated by this Agreement;
(b) All claims or representations made by or for CB
about CB 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 CB Materials do not infringe or violate any
copyright, patent, trademark, trade secret or other rights of any third party;
and
(d) there is no pending or threatened claim or action
against it contesting its right to use, or grant to third parties a license to
use, the CB Materials licensed hereunder, and to the best of its knowledge no
product, license, patent, trademark, service xxxx or trade name now being sold
or used by any person or entity infringes any of its intellectual property
rights licensed hereunder.
10.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
XXXXXXXXXX.XXX. XXXXXXXXXX.XXX represents, warrants and covenants that:
(a) the Site will conform in all material respects to
the Specifications and that XXXXXXXXXX.XXX shall fix any material errors in the
Site that cause a nonconformance with the Specifications;
(b) 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;
(c) the XXXXXXXXXX.XXX Materials do not infringe or
violate any copyright, patent, trademark, trade secret or other rights of any
third party; and
(d) there is no pending or threatened claim or action
against it contesting its right to use, or grant to third parties a license to
use, the XXXXXXXXXX.XXX Materials licensed hereunder, and to the best of its
knowledge no product, license, patent, trademark, service xxxx or trade name now
being sold or used by any person or entity infringes any of its intellectual
property rights licensed hereunder.
10.4 DISCLAIMER. 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, XXXXXXXXXX.XXX MAKES NO EXPRESS OR IMPLIED WARRANTIES RELATING TO THE
SITE OR ITS USE OR FUNCTIONALITY, AND SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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11. INDEMNIFICATION AND LIMITATION OF LIABILITY.
11.1 INDEMNIFICATION BY CB. CB 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 CB, including
the representations, warranties and covenants herein, (b) the CB Materials or
the CB 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 CB's
intellectual property rights permitted herein.
11.2 INDEMNIFICATION BY XXXXXXXXXX.XXX. XXXXXXXXXX.XXX shall
defend, indemnify and hold harmless CB, 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. WITH THE EXCEPT OF SECTION 11.2,
IN NO EVENT SHALL XXXXXXXXXX.XXX 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 XXXXXXXXXX.XXX HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
XXXXXXXXXX.XXX'S LIABILITY HEREUNDER EXCEED THE FEES PAID BY CB HEREUNDER.
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12. MISCELLANEOUS.
12.1 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.
12.2 ASSIGNMENT. This Agreement may not be assigned by either
party without the written consent of the other party, which consent shall not be
reasonably withheld; provided, however, that neither party shall be under any
obligation to agree to expand the scope of the license rights or obligations
granted herein. Notwithstanding the foregoing, either party may assign this
Agreement to an affiliate or in connection with a consolidation, merger or sale
of substantially all of its assets, without the consent of the other party,
provided that the successor in interest to such party assumes the obligations of
such parties hereunder. This Agreement and the covenants and agreements herein
contained shall, subject to the provisions of this Article, inure to the benefit
of and be binding on the parties hereto and their respective permitted
successors and assigns.
12.3 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.
12.4 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.
12.5 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.
12.6 GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of Minnesota, without regard to its
conflicts of laws rules.
12.7 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.
12.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts and each such counterpart shall be deemed an original hereof.
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12.9 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.
12.10 REMEDIES. All remedies available to either party
hereunder shall be cumulative in nature, and not exclusive.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the Effective Date.
KNOWLEDGENT CORPORATION,
D/B/A XXXXXXXXXX.XXX
By /S/ XXXXX XXXXXXXX
-----------------------------
President
COLDWELL BANKER, INC.
By /S/ XXXXXXX X. MAY
-----------------------------
Vice President, Education
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