EXHIBIT 10.18
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This Agreement (the "Agreement") is entered between XXXXXXXX'X, a division of
International Thomson Publishing, Inc., a Delaware corporation having its
principal place of business located at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 ("Xxxxxxxx'x") and CDKnet, LLC, a New York limited liability
company having its principal place of business located at 000 Xxxx 00xx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000 ("CDKnet") on this 19th day of March, 1999.
WHEREAS, Xxxxxxxx'x is in the business of providing information about
institutions to prospective students and participants through
various forms of media, including the Internet via its
CollegeQuest web site ("CollegeQuest"); and
WHEREAS, CDKnet has developed a process based on its CDK(TM) (patent
pending) technology (the "CDK Technology") which enables the
integration of stereo audio, full screen TV quality video and
seamless Internet Web browsing from a standard audio CD, which
process has been adapted for the mass customization of CDs based
on CDK Technology and known as CDKs ("CD-Live"); and
WHEREAS, Xxxxxxxx'x and CDKnet would like to enter into an affiliated
marketing arrangement in order to provide custom CDKs to
prospective students which would contain videos and information
on participant-selected institutions, as well as to provide other
Internet-based services to prospective students and participants
(collectively, the "Campus Video Program") at a web site to be
built at xxxxxxxxxxx.xxx, on the terms and conditions below,
NOW, THEREFORE,in consideration of the mutual promises of the parties hereto and
of the mutual benefits to be gained by the performance thereof,
and such other good and valuable consideration, the receipt and
sufficiency of which the parties hereto hereby acknowledge, the
parties hereto agree as follows:
1. PROMOTION BY XXXXXXXX'X. Xxxxxxxx'x agrees to promote, and provide a link
on its relevant web sites, including CollegeQuest, to the Campus Video
Program. Xxxxxxxx'x will promote and sell the Campus Video Program to
institutions. Xxxxxxxx'x will provide to CDKnet video content received from
participating institutions, which CDKnet will digitize, store and make
available through its Campus Video web site. Xxxxxxxx'x will administer (i)
its CollegeQuest site in accordance with Xxxxxxxx'x standard practices, and
(ii) the associated Campus Video link, and maintain contact with
participating institutions and new and prospective participants.
2. CDKNET RESPONSIBILITIES. CDKnet will provide the technology and service
necessary to digitize and store the campus tour videos, receive videos
submitted by institutions, secure authorization from Xxxxxxxx'x to digitize
each video received through the Campus Video Program, process order
requests received through the xxxxxxxxxxx.xxx site, charge the credit card
provided by the user as payment, set up and replicate the CDK with the
proper videos selected by the student, and send the completed CDK to the
student.
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3. PAYMENTS
3.1. PAYMENTS BY END USER CONSUMERS. Fees paid for videos will be
directed to a merchant account established and owned by
Xxxxxxxx'x and identified as the "CollegeQuest/CDK Campus Video
Program". Fees for videos will be established as set forth in
Schedule A, "Consumer Fees".
3.2. PAYMENTS BY PARTICIPATING INSTITUTIONS. Xxxxxxxx'x may collect
from institutions participating in the Campus Video Program the
following agreed-upon fees: (i) an initial program fee, the
amount of which will be determined by Xxxxxxxx'x; (ii) an annual
program renewal fee, the amount of which fee will be determined
by Xxxxxxxx'x. This fee will be collected on the anniversary date
of an institution's participation in the program; and (iii) a
reprogramming charge, if an institution requires modifications to
the video, the amount of which fee will be determined by
Xxxxxxxx'x.
3.3. PAYMENTS TO CDKNET. Xxxxxxxx'x will pay CDKnet according to the
following schedule: (i) for initial program fees, Xxxxxxxx'x will
pay CDKnet $500 for each new participating institution to cover
costs associated with digitization, within 15 days after the
close of the month in which Xxxxxxxx'x authorizes CDK to digitize
a submitted video; (ii) for annual renewal fees. Xxxxxxxx'x will
pay CDKnet $200 per institution continuing with the program,
within 30 days of the institution's anniversary date, to cover
costs associated with storage and continued service; (iii) for
reprogramming charges, Xxxxxxxx'x will remit to CDKnet 50% of
each such fee, subject to a minimum payment of $350 per video,
within 15 days after the close of the month in which collection
of the fee was made by Xxxxxxxx'x; (iv) for fees charged for the
purchase of CDKs, Xxxxxxxx'x will pay CDKnet, within 15 days
after the close of the month in which collection of the fee was
made by Xxxxxxxx'x, an amount equal to $3.25 per disc for
manufacturing plus the actual shipping and handling charged to
CDK by a third-party shipping company and 40% of the remaining
revenue, less any credits due to returns of defective
merchandise, or other chargebacks; and (v) in the event
Xxxxxxxx'x requests that CDKnet utilize a custom mailer for the
CDKs provided by Xxxxxxxx'x, Xxxxxxxx'x will pay to CDKnet an
agreed upon additional charge per CDK for the additional handling
and shipping fees.
4. CUSTOMER RELATIONSHIPS. Customers of the Campus Video Program, whether they
be institutions such as colleges and universities, end user consumers, or
others, are customers of Xxxxxxxx'x. Xxxxxxxx'x shall retain exclusive
right to market to and otherwise communicate with these customers.
Notwithstanding this provision. CDKnet shall have the right to do business
with any entity that is otherwise a customer of Xxxxxxxx'x, provided that
the service provided to that entity is not competitive with the offerings
of the Campus Video Program.
5. OWNERSHIP OF CONTENT
5.1. Xxxxxxxx'x shall be responsible for obtaining any rights,
licenses, clearances, releases, or other permissions necessary to
digitize and
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distribute CDKs containing content provided to CDKnet pursuant to
the Campus Video Program.
5.2. Content provided to CDKnet for the purposes of digitization may
be owned by Xxxxxxxx'x, an organization providing the content, or
a third-party. Nothing in this Agreement shall be read to
reassign ownership of such content.
6. WEB LINKS FROM EACH CDK. In addition to the selected videos, the Campus
Video Program CDKs will be configured to contain Web links to one or more
Xxxxxxxx'x sites, CDKnet (CD-Live), selected institutions, and other links
as mutually agreed by Xxxxxxxx'x and CDK.
7. CONTENTS OF EACH CDK. Each CDK will contain college videos, as provided by
Xxxxxxxx'x and selected by students, CDK Technology, and, as mutually
agreed, software applications from third parties (e.g., Netscape
Navigator).
8. PACKAGING. The packaging and discs for any such Campus Video Program CDKs
will include trademarks and logos from CDKnet, companies from which CDKnet
licenses enabling technology, and Xxxxxxxx'x.
9. USE OF TECHNOLOGY AND TRADEMARKS. Xxxxxxxx'x agrees that it will not, and
will not permit or assist any other party to: (i) reverse engineer,
disassemble or decompile all or any part of the CDK technology, or any copy
thereof, or (ii) without the written approval of CDKnet, use any trademark
or technology of CDKnet or CDKnet's licensors other than as expressly
permitted herein. This section survives the expiration hereof.
10. USE OF CONFIDENTIAL INFORMATION. Each party acknowledges and agrees that in
connection with this Agreement, one party may be given access to or come
into possession of confidential information of the other party, which
information may contain trade secrets, proprietary data or other
confidential business or technical information. Each party acknowledges and
agrees that it will not use, duplicate or divulge to others any such
confidential information, including, without limitation, trade secrets,
without first obtaining written permission from the other party. Upon
request, all tangible embodiments of such confidential information shall be
delivered to the requesting party after any termination or expiration of
such program. This section survives the expiration hereof.
11. INDEMNIFICATION
11.1. Xxxxxxxx'x shall indemnify CDKnet against all claims and damages
including without limitation reasonable attorneys' fees which
CDKnet incurs as a result of any claims against CDKnet arising
out of or related to the promotion of and video content
collection for the Campus Video Program. Including whether such
promotion and content collection infringe any copyright or
proprietary right of any third party provided that (i) CDKnet
notifies Xxxxxxxx'x promptly in writing of any such claim; (ii)
Xxxxxxxx'x has sole conduct of the defense of such claim; and
(iii) CDKnet's use of the promotion services and content
collected by Xxxxxxxx'x as part of the
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Campus Video Program has been in accordance with the restrictions
imposed under this Agreement.
11.2. CDKnet shall indemnify Xxxxxxxx`s against all claims and damages
including without limitation reasonable attorneys' fees which
Xxxxxxxx'x incurs as a result of any claims against Xxxxxxxx'x
arising out of or related to the CDK Technology utilized in the
Campus Video Program, including whether CDK Technology infringes
any copyright or proprietary right of any third party provided
that (i) Xxxxxxxx'x notifies CDKnet promptly in writing of any
such claim; (ii) CDKnet has sole conduct of the defense of such
claim; and (iii) Xxxxxxxx'x use of the CDK Technology and Campus
Video has been in accordance with the restrictions imposed under
this Agreement.
11.3. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES EITHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE, IN CONNECTION WITH THIS AGREEMENT. NEITHER XXXXXXXX'X NOR
CDKNET WILL IN ANY WAY BE LIABLE TO THE OTHER FOR ANY INDIRECT
CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS RESULTING FROM OR RELATED TO
THIS AGREEMENT.
11.4. Xxxxxxxx'x will (i) make no false or misleading representations
with regard to CDKnet, the CDK Technology or any CDK product,
(ii) not publish or employ or cooperate in the publication or
employment of any misleading or deceptive advertising materials,
and (iii) make no representations, warranties or guaranties to
anyone with respect to the specifications, features or
capabilities of the CDK technology that are inconsistent with
information contained in the CDK packaging materials. This
section survives the expiration hereof.
12 GENERAL
12.1. NOTICES. All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been
duly given if hand delivered or delivered or mailed, certified or
registered mail with postage prepaid or by a nationally
recognized overnight courier, to the addresses of the parties
shown in the preamble to the attention of the persons executing
this Agreement in their respective behalf. For Xxxxxxxx'x, the
notice will go to
Xxxxxxxx'x
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
ATTN: Vice President for Product Strategy
For CDKnet, the notice will go to:
CDKnet
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000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
ATTN: Chief Executive Officer
The date of receipt of hand delivered notices shall be the date
of such action. The date of receipt of mailed or couriered
notices shall be the date of delivery shown on postal service or
courier service documentation. Either party shall promptly give
written notice of any change of its address or addresses.
12.2. TERM OF AGREEMENT. This Agreement, and the license granted
hereunder, will remain in effect for two (2) years; provided,
however, that either party may terminate this Agreement after one
(1) year upon 90 days written notice.
12.3. ASSIGNMENT. The rights and obligations of the each of the parties
hereunder shall inure to the benefit of and shall be binding upon
the successors and assignees of such party.
12.4. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereof pertaining to the subject matter
hereof, and supersedes and replaces any and all prior agreements
between the parties concerning the subject matter hereof.
12.5. CHANGES TO THIS AGREEMENT. The terms and conditions hereof may be
changed only by an agreement in writing signed by the parties
hereto.
12.6. GOVERNING LAW. This Agreement shall be governed by, construed and
enforced under the laws of the State of New York without giving
effect to the conflicts or choice of law provisions thereof.
12.7. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
For: CDKnet, LLC For: XXXXXXXX'X,
A division of International
Thomson Publishing, Inc.
/s/ Xxxxxx Xxxxx 3/25/99
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Signature Signature
Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx
Chief Executive Officer Vice President, Product Strategy
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Date: 3/25/99 Date: 3/25/99
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SCHEDULE A
Consumer Fees
Fees for CDKs and associated videos sold to end-users are as follows:
o CDK and initial video: $5.95
o Additional video: $2.95
o Shipping & Handling: $4.00
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