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EXHIBIT 10.15
RESELLER AGREEMENT
This RESELLER AGREEMENT (this "AGREEMENT") made as of this 10th day of
February, 2000 by and between Training Media Operating LLC, a Delaware limited
liability company, having a principal place of business at 000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("TRAINING") and WBT Operating LLC, a
Delaware limited liability company, having a principal place of business at 000
Xxxxx Xxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("WBT"). (Training and WBT each
referred to herein as a "PARTY" and collectively as the "PARTIES.")
R E C I T A L S
WHEREAS, WBT is in the business of developing, marketing, and providing
technology-based training and information with regard to information technology
and other professional and business-related matters through the Internet,
CD-ROM, intranets and other electronic media ("WBT BUSINESS");
WHEREAS, Training is in the business of developing, marketing, and
providing (i) printed training materials and information with regard to
information technology and other professional and business-related matters,
including through print courseware, journals, and newsletters, and (ii) live,
in-person instructor-led classroom training ("TRAINING BUSINESS");
WHEREAS, Training is a provider of certain Training Products (as defined
below) used by WBT in connection with the WBT Business;
WHEREAS, Training desires to sell to WBT, and WBT desires to purchase
from Training such Training Products;
WHEREAS, both Training and WBT employ a knowledgeable sales force with
experience in the marketing and sale of information technology related products
and services;
WHEREAS, the Parties find it desirable to enter into this Agreement,
whereby, subject to the terms and provisions contained herein, Training desires
to appoint WBT as a Reseller (as defined below) of certain Training Products,
and
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WBT desires to appoint Training as a Reseller of certain WBT Products (as
defined below);
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the Parties hereby agree as follows:
1 DEFINITIONS
1.1 "ADVANCED TECHNOLOGY COURSEWARE" shall mean print courseware
containing content relating to information technology topics other
than Desktop Applications Materials (as defined below).
1.2 "CONFIDENTIAL INFORMATION" means records or information in the
possession or under the control of a Party relating to the content,
technical, marketing, product, and/or business affairs or proprietary
and trade secret information of that Party in oral, graphic, written,
electronic or machine readable form, clearly marked as "confidential,"
or if disclosed orally, information identified as confidential at the
time of disclosure. Confidential Information shall not include
information which can be demonstrated: (i) to have been rightfully in
the possession of the receiving Party from a source other than the
disclosing Party prior to the time of disclosure of said information
to the receiving Party ("Time of Disclosure"); (ii) to have been in
the public domain prior to the Time of Disclosure; (iii) to have
become part of the public domain after the Time of Disclosure by any
means except an unauthorized act or omission or breach of this
Agreement on the part of the receiving Party, its employees, or
agents; or (iv) to have been supplied to the receiving Party after the
Time of Disclosure without restriction by a third party who is under
no obligation to the disclosing Party to maintain such information in
confidence.
1.3 "DESKTOP APPLICATIONS COURSEWARE" shall mean print courseware relating
to the use of information technology products by end-users (as opposed
to information technology professionals), including word processing,
financial, graphics, and other software packages, such as Windows,
Microsoft Office, and Lotus Notes.
1.4 "MFN PRICE" shall mean the lowest price at which Training offers
Advanced Technology Materials or Desktop Applications Materials, as
applicable, to any third-party.
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1.5 "RESELLER" shall mean Training or WBT, as applicable, in its capacity
as a reseller of Training Products or WBT Products.
1.6 "TRAINING PRODUCTS" shall mean Advanced Technology Courseware and
Desktop Application Courseware.
1.7 "WBT PRODUCTS" shall mean a unit of any of WBT's technology-based
training products, including subscriptions to online learning
solutions, as well as intranet- and CD-ROM-based products.
2 APPOINTMENT
2.1 NON-EXCLUSIVE RELATIONSHIP. Subject to the terms and conditions
herein, Training hereby appoints WBT, and WBT hereby appoints
Training, as an independent, non-exclusive authorized Reseller for the
Training Products and WBT Products respectively.
3 ORDER PROCEDURE
3.1 ONLINE TRAINING PRODUCT SALES. In the case of Training Products
ordered through one of WBT's web sites ("ONLINE TRAINING PRODUCT
SALES") the following shall occur: (i) WBT will place such order with
Training in a manner agreed upon by the Parties, and purchase from
Training the specified Training Product(s), at the MFN Price plus an
incremental xxxx-up equal to Training's shipping cost for such
Training Products, (ii) Training shall, as promptly as possible,
fulfill the order and ship in accordance with Training's customary
practice the Training Product(s) from Training's inventory to the
ordering customer, who will be billed directly by WBT, and (iii) the
ordering customer will remit payment directly to WBT. WBT shall bear
all risk of returns or loss with respect to such Training Products
purchased and resold by it and shall retain all revenue from the
transaction.
3.2 OFFLINE SALES. In the case of a sale effected by a Party's salesperson
of the other Party's products the following shall occur: (i) the
salesperson shall place a written purchase order in a manner agreed
upon by the Parties directly to the Party whose product was sold, (ii)
such Parties shall fulfill such order and xxxx the customer directly
and (iii) the customer shall remit payment to the Party whose product
was sold. The Party in receipt of payment shall pay
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such Reseller a commission of forty percent (40%) of the total gross
revenue received from such sale.
4 PRICES; TERMS OF PAYMENT
4.1 SALES OF TRAINING PRODUCTS. Training shall sell Training Products to
WBT at the then current MFN Price. In the event that the MFN Price has
changed, Training shall notify WBT, in writing, no less than thirty
(30) days prior to instituting such change. As of the date hereof, the
current MFN Price for Advanced Technology Courseware and Desktop
Applications Courseware is specified on Schedule A, attached hereto.
WBT may, in its sole discretion, set the resale price at which
Training Products are offered to customers of WBT.
4.2 OTHER SALES. The price for each Training Product and WBT Product
offered by the Reseller's salespeople shall be the other Party's
then-current published suggested retail price; provided that the
Reseller shall offer volume and other discounts in accordance with the
other Party's policies as authorized by the other Party.
4.3 INVOICES. In the case of Online Training Product Sales, within ten
days following the end of each month Training shall deliver to WBT an
invoice setting forth (i) the MFN Price and (ii) the shipping costs to
Training for each purchase order placed by WBT during such period. WBT
will have thirty days to pay the invoice. Payments due by a Party with
respect to sales effected through the Reseller's salespeople shall be
paid in a manner consistent with such Party's internal billing
policies regarding payment of commission to their salespeople.
5 CONFIDENTIAL INFORMATION
5.1 CONFIDENTIAL INFORMATION. Each Party agrees that it shall take
reasonable steps to protect the Confidential Information of the other
Party, using methods at least substantially equivalent to the steps it
takes to protect its own proprietary information, but not less than a
reasonable standard, and shall prevent the duplication or disclosure
of Confidential Information, other than by or to its employees who
must have access to the Confidential Information to perform such
Party's obligations hereunder, provided that each Party shall make
such employees aware of the restrictions of this Section 5.1, or as
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required or reasonably necessary under applicable law, but only to the
extent so required or reasonably necessary and only subject to a
protective order or other appropriate confidentiality arrangement, to
the extent available and applicable.
6 INDEMNITIES
6.1 INDEMNIFICATION. Training shall defend, hold harmless, and indemnify
WBT, and its affiliates, officers, directors, shareholders, employees,
contractors, agents, and representatives, from and against any and all
claims, demands, actions, liabilities, damages, losses, fines,
penalties, costs, and expenses (including all attorneys' fees) of any
kind whatsoever (collectively, "Losses") actually or allegedly arising
or resulting from the business of Training, including without
limitation from the infringement or violation of the rights of any
third party through the use of any product in connection with the
Training Business pursuant to this Agreement. WBT shall defend, hold
harmless and indemnify Training, and its affiliates, officers,
directors, shareholders, employees, contractors, agents, and
representatives, from and against any and all Losses, including without
limitation from the infringement or violation of the rights of any
third party through the use of any product in connection with the WBT
Business pursuant to this Agreement.
7 TERM.
7.1 TERM. The initial term of this Agreement shall commence on the date
hereof and shall continue for a period of ten (10) years ("INITIAL
TERM"), and for consecutive one (1) year periods thereafter (each, a
"RENEWAL TERM"), unless either Party provides at least one (1) year
prior written notice of its intention not to enter into a subsequent
Renewal Term, in which case there shall be no subsequent Renewal Term
following such one (1) year notice (the last day of the Initial Term
or applicable Renewal Term following such one (1) year notice, a
"NON-RENEWAL").
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8 GENERAL
8.1 INDEPENDENT CONTRACTOR. The Parties agree and acknowledge that the
relationship of the Parties is in the nature of an independent
contractor. This Agreement shall not be deemed to create a partnership
or joint venture and neither Party is the other's agent, partner,
employee, or representative. Neither Party hereto shall have the right
to obligate or bind the other Party in any manner whatsoever, and
nothing herein contained shall give or is intended to give any rights
of any kind to any third persons.
8.2 FORCE MAJEURE. Neither Party shall be deemed in default of this
Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed, restricted or prevented by
reason of any act of God, fire, natural disaster, act of government,
strikes or labor disputes, inability to provide raw materials, power
or supplies, or any other act or condition beyond the reasonable
control of such Parties provided that such Parties gives the other
Parties written notice thereof promptly following discovery thereof
and uses its best efforts to cure the delay.
8.3 PARTIAL INVALIDITY. Should any provision of this Agreement be held to
be void, invalid, or inoperative, the remaining provisions of this
Agreement shall not be affected and shall continue in effect and the
invalid provision shall be deemed modified to the least degree
necessary to remedy such invalidity.
8.4 NO WAIVER. The failure of either Party to partially or fully exercise
any right or the waiver by either Party of any breach shall not
prevent a subsequent exercise of such right or be deemed a waiver of
any subsequent breach of the same or any other term of this Agreement
8.5 NO ASSIGNMENT. Training and WBT shall not assign any of their
respective rights or obligations under this Agreement, except in
connection with the sale of all or substantially all of its business to
which this Agreement relates. All of the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of, and
shall be enforceable by the respective permitted successors and assigns
of the Parties.
8.6 NOTICES. Any notice required or permitted to be sent shall be in
writing and shall be sent by Federal Express or like courier delivery,
or if sent by facsimile, with a confirmation copy by mail. Notice is
effective upon receipt.
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Notices shall be sent to the Parties at the addresses listed above,
unless a Party changes its address by giving written notice to the
other Parties.
8.7 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the Parties on this subject and supersedes all prior
negotiations, understandings, and agreements between the Parties
concerning the subject matter hereof. No amendment or modification of
this Reseller Agreement shall be made except by a writing signed by the
Party to be bound thereby or the permitted successor or assign of such
Party.
8.8 SEVERABILITY. If any provision of this Reseller Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable,
such determination shall not affect the validity or enforceability of
any other part or provision of this Agreement.
8.9 GOVERNING LAW. This Agreement shall be governed and interpreted in
accordance with the laws of the State of New York without regard to
principles of conflict of laws. The Parties agree to submit to the
exclusive jurisdiction over all disputes hereunder and venue in the
federal and state courts in the State of New York located in New York
County.
8.10 HEADINGS. The section headings contained in this Reseller Agreement
are for reference purposes only and shall not in any way affect the
meaning or interpretations of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
TRAINING MEDIA OPERATING LLC WBT OPERATING LLC
By: [SIG] By: [SIG]
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Print Name: Print Name:
------------------------- -------------------------
Title: Title:
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Date: Date:
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Schedule A
MFN PRICING
AS OF FEBRUARY [ ], 2000
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Training Product Price
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Advanced Technology
Courseware $18.00
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Desktop Application
Courseware $6.50
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