EXHIBIT - 10.5
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MARKETING AND SALES AGREEMENT
THIS MARKETING AND SALES AGREEMENT (this "Agreement") is made and entered into
effective January 20, 2001, (the "Effective Date"), by and between Compass
Knowledge Group, Inc., a Florida corporation ("Compass") and GE Medical Systems,
a division of General Electric Company, a New York corporation ("GEMS")
(collectively or individually referred to hereinafter as the "Party" or
"Parties").
WHEREAS, Compass, through its subsidiaries, offers and provides educational
courses and programs and related products and services including degree programs
leading to ##### (the "Degree Programs");
WHEREAS, GEMS is the owner and operator of certain website(s), accessible
through the URL(s) xxxx://xxx.xxxxxxxxxxxxxxxx.xxx, and
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xxxx://xxx.xxxxxxxxxxxxxxxx.xxx/xxxxxxx (the "GEMS Sites") and has various other
means and methods available to it to market and sell the Degree Programs
(hereinafter collectively known together with the GEMS Sites as the "GEMS
Marketing Channels"); and
WHEREAS, GEMS desires to contract with Compass to utilize the GEMS Marketing
Channels to market and sell the Degree Programs, and Compass agrees to provide
such Degree Programs and to pay GEMS a commission with respect to all Degree
Programs sold as a direct result of its relationship with GEMS according to the
terms and conditions hereof (the "Marketing and Sales Relationship").
NOW THEREFORE, the Parties, in consideration of the mutual promises contained
herein and intending to be legally bound hereby, agree to the following:
1.0 GENERAL
1.1 The detailed terms and conditions of the Marketing and Sales Relationship,
including the services to be provided and the payments therefore, are set
forth in this Agreement.
1.2 This Agreement shall be deemed to commence on the Effective Date and shall
continue in effect until termination as provided in Section 9 hereof. It
is specifically understood and agreed that this Agreement extends only to
activities in connection with the Marketing and Sales Relationship.
1.3 Each Party hereto shall act as an independent contractor, and this
Agreement shall not constitute, create, give effect to, or otherwise
recognize a joint venture, pooling arrangement, partnership, or formal
business organization of any kind. Except as otherwise provided herein or
otherwise agreed to by the Parties in writing, each Party shall bear its
own costs and expenses incurred with respect to the Marketing and Sales
Relationship.
#### The following material has been omitted pursuant to a request for
confidential treatment and such material has been filed separately with
the commission.
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2.0 OBLIGATIONS OF COMPASS
2.1 Degree Programs. Compass agrees to provide the Degree Programs to the
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students and customers including those individuals who learn of such
Degree Programs as a result of the Marketing and Sales Relationship.
Compass shall provide the Degree Programs in accordance with its
policies and procedures as they may exist from time to time, and Compass
hereby assumes all responsibility with respect to the same. Compass will
not change its knowledge partners with respect to the Programs without
obtaining GEMS prior written approval, which will not be unreasonably
withheld. Compass will pay the knowledge partners' fees and make
distributions of revenues/profits with respect to the Programs only
after GEMS has been paid its Commission
2.2 Compass will assist GEMS in its efforts by providing the services and
materials necessary to facilitate the use of and maximize the impact of
the GEMS Marketing Channels, including such items as artwork, design and
layout templates, information and any other items necessary for GEMS to
effectively market and sell the Degree Programs. If requested by GEMS,
Compass will configure the filters within the Compass database to
provide the GEMS Sites with access to information concerning the Compass
Degree Programs that are available to GEMS and its customers and others,
and will provide the interface pages already existing on their site in
the form of a URL
2.3 Processing. Compass shall be responsible for all aspects of delivering
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the Degree Programs and customer and revenue processing, including
intake, registration, processing payments, returns, refunds and credits.
2.4 Reporting. Compass shall provide GEMS with weekly reports containing the
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previous week's responses from GEMS' promotional activity generated as a
direct result of the GEMS Marketing Channels. Specifically, these
reports shall contain but not be limited to: #####. Such statements
shall be furnished to GEMS regardless of whether any Programs, Products
or Services were sold during the Commission Period or whether any actual
Commission is owed.
2.5 Compass will be responsible for assuring that the institution providing
the Degree Program is regionally accredited. GEMS retains the right to
reject an institution.
2.6 Compass will be responsible for taking all reasonable actions to assure
student satisfaction with the Degree Program as administered by Compass,
including mentoring and student assistance to encourage completion of
the Degree Programs. In addition, Compass must administer quarterly
student satisfaction surveys to its student population in the Degree
Programs and must report these survey results to GEMS no later than one
month following the close of the survey. GEMS and Compass will review
these findings and Compass will take reasonable action to address any
unsatisfactory findings. If progress is not demonstrated, GEMS may
terminate its responsibilities under this Agreement.
Specifically, Compass must take reasonable actions to assure at least a
#####% retention rate of students entering the Degree Programs. The
calculation of students leaving the Degree Program divided by students
enrolled in the Degree Program for more than one semester should not
exceed ##### % in any semester once the measurement is initiated. This
measure will be instituted during the third semester following a Degree
Program launch, and will be reported at the end of each semester after
that for the duration of the Agreement. If the retention rate falls
below #####%, Compass will report to GEMS within 30 days of the finding
the reasons for the attrition, and will detail actions to increase
retention to at least #####%. GEMS and Compass will review these actions
at least bi-weekly for a 90 day period to assure progress towards
increasing
##### The following material has been omitted pursuant to a request for
confidential treatment and such material has been filed separately with
the commission.
2 of 8 January 16, 2001
retention. If progress is not demonstrated, GEMS may terminate its
responsibilities under this Agreement.
2.7 Compass will be responsible for coding all names submitted to Compass
through any of the GEMS Marketing Channels as a GEMS lead. If any lead
converts to a student within ##### months from the time the lead is
first received, GEMS will receive credit for that lead.
3.0 OBLIGATIONS OF GEMS
3.1 Promotional Obligations; Marketing Channels. GEMS shall use all
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reasonable efforts to actively market the Degree Programs by utilizing,
as it deems appropriate, the GEMS Marketing Channels.
3.2 GEMS will review marketing materials and text with Compass to assure
consistency and accuracy. Compass's approval shall not be unreasonably
withheld.
3.3 Liaison. GEMS will identify a liaison from within its organization to
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communicate directly with Compass. The liaison will provide assistance
with respect to the Marketing and Sales Relationship.
3.4 Logos. GEMS agrees, subject to its prior written approval in its sole
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discretion for each specific use, that Compass may utilize the GEMS
logos and trademarks in connection with the promotion of the Degree
Programs. GE further agrees to utilize the Compass logos and trademarks
on all marketing materials related to the Compass Degree Programs,
provided, however, that GEMS may reject any specific use in its sole
discretion if such use of Compass logos and trademarks would be
inconsistent with GEMS' branding strategies. Compass shall provide GEMS
with its logos and trademarks and any electronic linking information
required for this purpose. GEMS agrees to utilize the Compass logo as
provided, without alteration.
3.5 Copyrights. GEMS shall use all reasonable efforts to protect the
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copyrights of Compass, the Compass Degree Programs and Compass' content
and knowledge providers. GEMS shall provide to Compass, Compass' content
and knowledge providers and associated authors, proper credit for the
Compass Degree Programs by displaying appropriate information within the
published materials and any Links to the Gateway and Compass Degree
Programs.
4.0 PAYMENT AND TERMS.
4.1 The Commission. Compass agrees to pay to GEMS during the Term of this
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Agreement a commission based on the students generated by GEMS Marketing
Channels attending in a given semester (the "Commission").
4.2 The Commission Period. The Commission owed GEMS shall be calculated on a
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quarterly calendar basis (the "Commission Period") and shall be payable
no later than ##### during that quarter, provided the drop date of the
program has passed.
4.3 The payment will be based on the number of students generated by GEMS
Marketing Channels attending in a given semester.
4.3.1 Students generated by GEMS Marketing Channels are those students
who requested material about the Degree Programs via a GEMS
Marketing Channel, enrolled in a
##### The following material has been omitted pursuant to a request for
confidential treatment and such material has been filed separately with
the commission.
3 of 8 January 16, 2001
Degree Program within ##### months of that initial request, and
have not withdrawn from the Program during the given semester.
Students meeting this criteria will be classified as GEMS
students regardless of whether Compass had contacted them
previously or since the GEMS contact.
4.3.2 Tuition is the charge billed to students for the program
4.3.3 Commission will be paid as follows:
##### generated by GEMS Marketing Channels #####
##### generated by GEMS Marketing Channels #####
##### generated by GEMS Marketing Channels #####
##### generated by GEMS Marketing Channels #####
Example: #####
4.4 The Commission Statement. With each Commission payment, Compass shall
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provide GEMS with a written commission statement in a form reasonably
acceptable to GEMS reciting #####. Such statements shall be furnished to
GEMS regardless of whether any Programs, Products or Services were sold
during the Commission Period or whether any actual Commission is owed.
5.0 CONFIDENTIAL MARKETING AND SALES RELATIONSHIP TECHNOLOGY
5.1 The parties shall jointly own and have the right to use any technology
or related products developed or data generated as a result of the
Marketing and Sales Relationship (the "Marketing and Sales Relationship
Technology"). GEMS shall maintain the privacy of any users or data that
results from users accessing the Degree Programs via the GEMS Marketing
Channels.
5.2 The term "Confidential Information" as used herein means all of the
information related to the Marketing and Sales Relationship provided by
either Party whether or not a patent, trade secret, know-how, copyright
or other form of intellectual property and whether or not technical,
engineering, operational or economic in nature, except information (i)
which is now or hereafter becomes part of the public domain through no
fault of the party claiming waiver, (ii) which was known to the
recipient Party prior to its disclosure by providing Party or (iii) is
disclosed to the recipient Party by a third party having a lawful right
to make such disclosure.
5.3 In consideration of each Party's willingness to enter into this
Agreement, each Party agrees with respect to Confidential Information
provided to it by the other Party: (i) not to make any use whatsoever of
such Confidential Information except with respect to the Marketing and
Sales Relationship, including, without limitation, to use such
Confidential Information in connection with any other development
activities conducted on behalf of the recipient Party, either by itself
or by any other person, firm or corporation, (ii) not to reveal such
Confidential Information to third parties, (iii) to keep all such
Confidential Information strictly secret and confidential and to prevent
unauthorized use or reproduction of all written Confidential Information
by causing it to be plainly marked as secret and confidential, (iv) to
return all written materials to the providing Party upon request by the
providing Party and (v) to limit access to such Confidential Information
to those employees made available to the Marketing and Sales
Relationship.
5.4 Each Party further agrees not to reverse engineer any Confidential
Information (including any piece of equipment, component thereof,
technology or software) made available to it by the other Party during
the course of the Marketing and Sales Relationship.
#### The following material has been omitted pursuant to a request for
confidential treatment and such material has been filed separately with
the commission.
4 of 8 January 16, 2001
5.5 In the event of any communication or use of Confidential Information by
any recipient Party in violation of this Section 5, such Party shall
indemnify and hold harmless the providing Party from any and all loss,
liability or expense suffered by the providing Party; provided, however,
that such remedy shall not be exclusive of any rights or remedies
otherwise available at law or in equity, including injunctive relief, to
the providing Party and, if successful in any litigation, the providing
Party shall be entitled to payment of its legal fees, court costs and
other expenses incurred in enforcing or otherwise protecting its rights
hereunder.
6.0 DISPUTE RESOLUTION
6.1 Any dispute or claim arising between the Parties relating to
interpretation of the provisions of this Agreement or to performance of
either of the Parties hereunder which has not been resolved by the
appropriate management level personnel of the Parties, shall be referred
to the CEO or other equivalent identified individual of each Party.
6.2 If the CEOs (or equivalent individual) have not resolved the dispute
within ten (10) business days, then at the request of either Party, the
dispute shall be referred to an arbitrator in accordance with the
commercial arbitration rules of the American Arbitration Association.
Unless the Parties otherwise agree, the arbitrator appointed must be a
former judge who has served on a state or federal court, or, if such a
former judge is unavailable, a person having knowledge of the industry
in which the Parties conduct business. The site of the arbitration shall
be New York, NY. No discovery shall be permitted by either Party with
regard to the proceedings. The decision of the arbitrator shall be final
and binding upon the Parties and judgment thereon may be secured from
any court of competent jurisdiction. Neither Party shall be dispensed
from performing under the Agreement because an arbitration proceeding
has been initiated.
6.3 The Parties shall bear all their respective costs incurred in connection
with the arbitration, except that the Parties shall share equally the
fees and expenses of the arbitrator and the cost of the facility for the
hearing.
7.0 REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMERS
7.1 Each of the Parties represents and warrants to the other Party that: (a)
such Party is not a party to any contract or agreement that prevents
such Party making the warranty and representation from fulfilling all
such Party's responsibilities and obligations hereunder or that impairs
or may impair any responsibility or obligation of such Party hereunder;
(b) such Party has full right, authority, and legal capacity to enter
into this Agreement and to perform its responsibilities and obligations
hereunder; (c) such Party is under no disability, restriction, or
prohibition regarding such Party's right to enter into and execute this
Agreement or to fully perform its terms and conditions; and (d) such
party is acting hereunder independently and shall not at any time
indicate to anyone that the other Party is the agent of such Party
making the warranty and representation.
7.2 EXCEPT AS SET FORTH HEREIN, NO PARTY MAKES ANY REPRESENTATION OR
WARRANTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT, INCLUDING ANY
REPRESENTATION OR WARRANTY FOR ANY PRODUCT OR SERVICE AS TO PERFORMANCE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THERE ARE INHERENT PROBLEMS WITH DISTRIBUTING INFORMATION VIA ELECTRONIC
PUBLISHING AND TRANSMISSIONS. THE INFORMATION CONTAINED ON THE SITE IS
NOT GUARANTEED BY GEMS AS TO ITS ACCURACY IN CONNECTION WITH ITS
TRANSMISSION TO THE USER. WHILE ALL EFFORT HAS BEEN MADE TO AVOID
ERRORS, INACCURACIES AND OMISSIONS, THE SITE MAY CONTAIN ANY OF THE
SAME, INCLUDING INACCURACIES, MISSTATEMENTS,
5 of 8 January 16, 2001
TYPOGRAPHICAL ERRORS, DELAYS IN TRANSMISSION, LOSS OF DATA DURING
TRANSMISSION AND/OR OMISSIONS OF A TECHNICAL, LEGAL OR OTHER NATURE, FOR
WHICH GEMS DISCLAIMS ANY LIABILITY.
8.0 INDEMNIFICATION
8.1 Each Party shall indemnify and hold harmless the other Party from and
against any losses, damages, claims, expenses and attorneys fees
incurred by such other Party due to the breach of a representation,
warranty or covenant of such first Party as set forth herein.
8.2 Notwithstanding anything in this Agreement to the contrary, in no event
shall either Party be liable to the other or to a third party for any
special, incidental, punitive, exemplary, penalty or consequential costs
or damages of any sort, whether based upon contract, tort (including
product liability claims) or any other legal theory (including lost
profits and opportunity).
9.0 TERMINATION
9.1 Unless earlier terminated as provided herein, or renewed pursuant to the
next succeeding sentence, this Agreement shall expire ##### from the
date hereof. This Agreement shall automatically renew for successive
##### periods (each, a "Renewal Period") on each respective expiration
date unless either Party shall provide written notice to the other at
least 60 days prior to such expiration date that it desires not to renew
this Agreement for such ##### period. This Agreement also may be
terminated by either party upon, (i) a material breach of any
representation, warranty or covenant by the other party, which causes
actual harm to such other party after written notice of such breach and
failure to cure such breach within ninety (90) days of any such notice,
(ii) if GEMS Marketing Channels have not generated at least ##### by
June 30, 2002; ; or (iii) #####.
9.2 Either Party shall have the right, at its option, to cancel and
terminate this Agreement forthwith in the event that the other Party
shall become involved in insolvency, dissolution, bankruptcy or
receivership proceedings affecting the operation of its business or in
the event that the other Party shall discontinue its business for any
reason, except that in the event of an involuntary bankruptcy filing
against either party, that Party shall have sixty (60) days to remedy
the situation before this Agreement can be terminated.
9.3 Any termination shall discharge the Parties from their obligations
hereunder, other than those obligations set forth in Sections 5.0 and
8.0 hereof; provided, that Compass shall remain liable for the payment
of any Commissions earned and unpaid as of the date of termination.
10.0 MISCELLANEOUS
10.1 Neither Party hereto shall be liable to the other for default or delay
in performing its obligations hereunder or any lost profits or revenues
if caused by acts of war, fire, strike, riot, act of God, delay in
carriers, governmental order or regulation, internet connection,
electronic communication or server problems and/or other similar or
different occurrence beyond the reasonable control of the Party thereof.
10.2 Each Party acknowledges that it will benefit the Marketing and Sales
Relationship if each Party uses its reasonable efforts to publicize the
Marketing and Sales Relationship. Therefore, the Parties shall be
permitted to disclose the existence (but not the financial terms) of
this Agreement. Either Party wishing to make any such disclosure shall
provide a copy of the same to the other
##### The following material has been omitted pursuant to a request for
confidential treatment and such material has been filed separately
with the commission.
6 of 8 January 16, 2001
Party for its prior review, and shall incorporate any reasonable
comments of such other Party. Approval of the disclosure will not be
unreasonably withheld. This disclosure may include a description of the
Degree Programs and the relationship of the parties in a press release.
Both Parties agree to allow the other Party to use its name in the
advertisement of its services or in marketing proposals to its
customers.
10.3 All notices, requests, demands and other communications under this
Agreement shall be given to or made upon the respective Parties as
follows:
To: Compass Knowledge Holdings, Inc. To: General Electric Company
0000 Xxx Xxxxxx, Xxxxx 000 N16, W22419 Xxxxxxxxx Xxxx
Xxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxxx Xxxxxxxx
Telephone: (000)000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: 000-000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxx.xxx Email: xxxxxxx.Xxxxxxxx@xxx.xx.xxx
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All notices, requests, demands and other communications given or made
concerning the provisions of this Agreement shall be in writing and
shall be given either by prepaid registered or certified mail with
return receipt requested. All such notices, requests, demands and other
communications shall become effective on the date such notice was
received.
10.4 This Agreement shall inure to the benefit of and be binding upon the
Parties hereto, their successors, assigns and legal representatives.
10.5 This Agreement shall be governed by and construed according to the laws
of the State of Florida.
10.6 This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall
constitute one Agreement, and any Party hereto may execute this
Agreement by signing one or more counterparts hereof.
10.7 This Agreement constitutes the full extent of the understanding of the
Parties and supersedes all prior understanding and agreements. No
amendment or modification shall be made except in writing signed by both
Parties hereto.
7 of 8 January 16, 2001
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement effective as of the Effective Date:
COMPASS KNOWLEDGE HOLDINGS, INC. GE MEDICAL SYSTEMS, A DIVISION OF
GENERAL ELECTRIC COMPANY
By:___________________________________ By:__________________________________
Title:________________________________ Title:_______________________________
Date: ________________________________ Date: _______________________________
8 of 8 January 16, 2001
