EXHIBIT 10.17
AMENDMENT TO PRIVATE-LABEL
WEB-SITE AGREEMENT
This Amendment dated as of this ______ day of March, 2001 (this
"Amendment") and effective as of ______________________ (the "Effective Date")
to an agreement dated February 2, 2000 by and between DEARBORN FINANCIAL
PUBLISHING, INC. a corporation organized under the laws of Illinois, with its
principal place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000
("Dearborn") and XXXXXXXX.XXX, INC, a corporation organized under the laws of
the State of Delaware, with its principal office at 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxx X, Xxxxx, XX 00000 (the "Agreement").
WHEREAS, xXxxxxxx.xxx, Inc. wishes to assign all of its rights,
interest and obligations under the Agreement to ENTREPORT CORPORATION (an
affiliate of Xxxxxxxx.xxx, Inc.) a corporation organized under the laws of the
State of Florida, with its principal office at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx
X, Xxxxx, XX 00000 ("EntrePort");
WHEREAS, EntrePort desires to assume all of xXxxxxxx.xxx, Inc.'s
rights, interests and obligations under the Agreement and Dearborn is willing to
accept xXxxxxxx.xxx, Inc.'s assignment of such rights, interests and obligations
under the Agreement to EntrePort on the condition that xXxxxxxx.xxx, Inc.
remains jointly and severally liable to Dearborn under the Agreement together
with EntrePort; and
WHEREAS, EntrePort desires to further amend the Agreement to allow
EntrePort to offer the Dearborn Licensed Content to virtual university and
private branded on-line universities developed by EntrePort for its clients;
WHEREAS, EntrePort desires to further amend the Agreement to allow
EntrePort to offer the Dearborn Licensed Content pursuant to both (i) a monthly
membership fee including unlimited access to the continuing education courses,
and/or (ii) an ala carte or pay per view basis.
NOW THEREFORE, the parties hereto agree as follows:
1. xXxxxxxx.xxx, Inc. hereby assigns all of its rights, interests and
obligations under the Agreement to EntrePort; provided, however, xXxxxxxx.xxx,
Inc. agrees that xXxxxxxx.xxx, Inc. is, and will continue to be, jointly and
severally liable, together with EntrePort, to Dearborn, for any of xXxxxxxx.xxx,
Inc.'s obligations, duties, representations and/or warranties made under the
Agreement. EntrePort agrees that it will be bound by all of the terms and
conditions of the Agreement and EntrePort, xXxxxxxx.xxx, Inc. and Dearborn each
agrees that EntrePort and Dearborn shall be the sole parties to this Amendment.
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2. Section 1. of the Agreement is hereby amended to: (i) delete, in its
entirety, the definition of "Paying Member" set forth in subsection j. of
Section 1; and to substitute the following new subsection j. in its stead; and
(ii) add the following new definitions as new subsections l. , m., and n. of
Section 1.:
"j. "PAYING MEMBER" means any EntrePort customer who pays for
a monthly membership program that includes unlimited access to Dearborn Licensed
Content as a benefit of the membership at no additional cost, regardless of
whether the member actually enrolls in or takes any of the Dearborn continuing
education courses. If an EntrePort customer enrolls as a member but does not pay
a monthly membership fee due to a promotional offering by EntrePort (e.g, 30
days free) then such member shall be deemed to become a Paying Member on the
31st day following the date he or she initially enrolls as an EntrePort member."
"l. "ON-LINE UNIVERSITY SITE" means a site that EntrePort
creates for an EntrePort client's applications that utilizes EntrePort's
proprietary virtual university platform (collectively, the "ON-LINE UNIVERSITY
SITES").
m. "ON-LINE UNIVERSITY PLATFORM" means EntrePort's proprietary
virtual university platform.
n. "ON-LINE UNIVERSITY SITE CLIENT" means an EntrePort client
for which EntrePort has developed and maintains an On-Line University Site."
3. Section 2 of the Agreement is amended to include new subsections c.
and d. and former subsection c. is hereby re-designated subsection e:
"c. Subject to the terms and conditions of the Agreement,
Dearborn hereby grants to EntrePort a non-transferable license during the term
of the Agreement to: (i) modify the Dearborn Licensed Product so as to convert
the electronic files containing the Dearborn Licensed Content to a form suitable
to the On-Line University Platform, it being understood and agreed that no such
modification may in any way modify or alter any of the Dearborn Licensed
Content's content; (ii) display the Dearborn Licensed Content on the On-Line
University Sites in such converted form; and (iii) permit authorized users of
the On-Line University Sites to access the Dearborn Licensed Content through the
On-Line University Sites. Each On-Line University Site must: (x) refer both to
the private brand (e.g., Prudential, Coldwell Banker etc.) and to Dearborn using
the following language: "powered by Dearborn Real Estate Education" (or such
other similar language as may be given prior approval by Dearborn so as to not
conflict with any continuing education guidelines, regulations or requirements);
and (y) include Dearborn's RE Campus ID/logo on each opening screen in any
On-Line University Site that contains any of the Dearborn Licensed Content.
Dearborn must approve all Dearborn Licensed Content converted to the On-Line
University Platform as well as any Dearborn branding that may appear on any
On-Line University Site prior to such time as any On-Line University Site
becomes available to any third party.
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x. Xxxxxxxx will deliver the Dearborn Licensed Content to
EntrePort in electronic format within twenty (20) days following execution of
this Amendment. EntrePort will be solely responsible for all services and costs
required to convert the Dearborn Licensed Content to the On-Line University
Platform. During the term of the Agreement, if Dearborn releases a revision or
update to a Dearborn real estate course, Dearborn will, within a reasonable time
after any such release, deliver such revision or update to EntrePort in an
electronic format. EntrePort will be solely responsible for all services and
costs required to convert updated Dearborn Licensed Content, if any, to the
On-Line University Platform. Dearborn must approve revised or updated Dearborn
Licensed Content, if any, converted to the On-Line University Platform as well
as any Dearborn branding that may appear on any On-Line University Site prior to
such time as any On-Line University Site becomes available to any third party."
4. Section 4 of the Agreement is hereby amended to add the following
subsections aa. and ab. (which shall immediately follow subsection a. of Section
4):
"aa. EntrePort may market the Dearborn Licensed Content available on
each On-Line University Site and on the Branded Site on either a pay per view or
on a membership basis, as determined by EntrePort in its sole discretion,
provided, however, notwithstanding the foregoing, all of EntrePort's membership
sales must be made by means of connecting or linking to Dearborn's REcampus
site.
ab. In consideration of the rights granted by Dearborn to EntrePort in
this Amendment, EntrePort agrees to pay Dearborn a license fee, payable on a
monthly basis, equal to $5.00 per credit hour for each continuing education
course incorporating the Dearborn Licensed Content purchased by pay per view
users; provided, however, for such users who reside in California, EntrePort
agrees to pay Dearborn a license fee in the amount of $35.00 per 45-hour
continuing education package and $20.00 per 12-hour continuing education package
and for such users who reside in Florida, EntrePort agrees to pay Dearborn a
license fee in the amount of $12.50 per 14-hour continuing education package.
Dearborn will apply all license fees resulting from membership sales and fees
from pay per view sales on On-Line University Sites against the guaranteed
minimum license fees set forth in Sections 4.c., 4.d. and 4.e of the Agreement."
5. The Agreement is hereby amended to add the following new Section 23:
"Section 23. OWNERSHIP OF DEARBORN LICENSED CONTENT.
It is expressly understood and agreed that the Dearborn
Licensed Content is and shall remain the sole and exclusive property of Dearborn
and that neither xXxxxxxx.xxx, Inc. nor EntrePort shall have any rights with
respect to the Dearborn Licensed Content except as granted in the Agreement or
in this Amendment. Upon the expiration or earlier termination of the term of the
Agreement, the grant of rights made by Dearborn with respect to the Dearborn
Licensed Content in the Agreement and/or in this Amendment shall automatically
terminate and all rights in and to the Dearborn Licensed Content shall
automatically revert to Dearborn.
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6. The Agreement is hereby amended to add the following new Section 24:
"24. CONTINUING EDUCATION ADMINISTRATION.
a. During the term of the Agreement, Dearborn shall be responsible for
gaining and retaining the continuing education approvals from the appropriate
authorizing entities such as ARELLO and the individual states for only Dearborn
developed courses. During the term of the Agreement, Dearborn shall be
responsible for continuing education administration, certification and record
keeping requirements associated with state credit granting requirements only for
courses that are provided by Dearborn.
b. During the term of the Agreement, EntrePort will provide Dearborn
with a custom CE vendor interface for tracking course activity and for
Dearborn's use in the certification process. During the term of the Agreement,
EntrePort shall be responsible for the administration of the e-commerce
transactions and will remit the revenue share due Dearborn as set forth in
Section 4. of the Agreement."
7. The Agreement is hereby amended to add the following new Section 25:
"25. EXCLUSIVITY.
a. Except as otherwise provided in subsection b. of this Section 25,
EntrePort agrees that provided that Dearborn is not in default under the
Agreement or under this Amendment and has the ability to offer continuing
education courses in accordance with appropriate state entities' requirements,
for the term of the Agreement Dearborn shall be the exclusive provider of all of
the continuing education courses offered by EntrePort, its affiliates or
subsidiaries (EntrePort's "Exclusivity Obligation").
b. It is understood and agreed that EntrePort's Exclusivity
Obligation shall not restrict EntrePort from offering any of the following
continuing education courses on the On-Line University Sites:
(1) The courses developed by Xxxxxxxxxx.xxx prior to the
Effective Date entitled "Real Estate Finance", "Buyer's
Representation", "Ethics", "Fair Housing", and "Agency";
(2) A certified continuing education course that meets each
of the following criteria: (i) it is on a subject matter not covered by
any Dearborn continuing education course; (ii) it is developed by an
On-Line University Client; (iii) it is solely for such On-Line
University Client's use on such Client's On-Line University Site; and
(iv) such On-Line University Client requests EntrePort to post such
certified continuing education course on such Client's On-Line
University Site. EntrePort shall not initiate or contract with any
On-Line University Client's content developers and will not refer
content developers to On-Line University Clients to develop continuing
education content; and
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(3) Certified continuing education courses that meet each of
the following criteria: (i) it is on a subject matter not covered by
any Dearborn continuing education course; (ii) an On-Line University
Site Client specifically asks EntrePort to develop such course or
EntrePort desires to develop such course for the Branded Site (each a
"Requested Course"); (iii) EntrePort gives Dearborn written notice that
it wishes to offer a Requested Course (such notice shall specify the
subject matter of the Requested Course that EntrePort wishes to offer)
(the "Notice"); (iv) within seven (7) business days of Dearborn's
receipt of any such Notice from EntrePort, Dearborn must give EntrePort
written notice advising EntrePort whether Dearborn wishes to develop
the Requested Course; and (v) should Dearborn determine, in its sole
discretion, that it wishes to develop the Requested Course, Dearborn
and EntrePort shall mutually agree upon the schedule within which
Dearborn will complete the Requested Course and to submit it for
accreditation with all necessary regulatory bodies in each state in
which Dearborn has continuing education courses. Should Dearborn notify
EntrePort that it will develop the Requested Course specified in the
Notice but fail to finalize the course and submit it for accreditation
within (5) five months of the date of Dearborn's receipt of a Notice
from EntrePort, the Requested Course specified in the Notice shall be
deemed to fall outside of EntrePort's Exclusivity Obligation upon the
earlier of: (x) the first day of the 6th month following Dearborn's
receipt of the Notice; or (y) the date Dearborn advises EntrePort that
it will not continue to pursue development and/or accreditation of the
Requested Course specified in the Notice. With regard to any Requested
Course for the Branded Site only, EntrePort's Notice shall be limited
to one Requested Course in any ninety (90) day time period.
8. All defined terms not otherwise defined herein shall have the same
meaning as such terms are ascribed in the Agreement.
9. Except as herein expressly modified by this Amendment, all of the
terms, covenants, obligations and conditions of the Agreement shall apply with
equal force and effect to all of the Dearborn Licensed Content that appears on,
and is sold as part of, any On-Line University Site.
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IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the Effective Date.
DEARBORN FINANCIAL PUBLISHING, INC.
By:
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Its:
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ENTREPORT CORPORATION XXXXXXXX.XXX, INC.
By: By:
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Its: Its:
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