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Exhibit 10.14
AGREEMENT
THIS AGREEMENT dated as of June 30, 1998 between the College Entrance
Examination Board, an education corporation organized under the laws of the
State of New York (the "College Board") on its own behalf and on behalf of the
Educational Testing Service, an education corporation organized under the laws
of the State of New York ("ETS"), and ECI, Inc., a Massachusetts corporation
("ECI").
WHEREAS, ECI is engaged in the business of assisting students and
institutions of higher education with the student application process through
its software product CollegeLink ("CollegeLink");
WHEREAS, the College Board, through its ExPAN software product
("ExPAN"), makes available to students a broad range of counseling regarding
application to institutions of higher education;
WHEREAS, the College Board and ECI desire that CollegeLink be used in
conjunction with ExPAN, as more fully provided below.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the College Board and ECI agree as follows:
1. GRANT OF LICENSE. ECI hereby grants to the College Board, for the
term of this Agreement, a nonexclusive license to CollegeLink, to integrate
CollegeLink into and utilize CollegeLink in connection with the College Board's
ExPAN program, subject to the terms and conditions of this Agreement. Without
ECI's prior written consent, the College Board shall not license or sub-license
CollegeLink to others. Except as otherwise expressly provided herein, this
Agreement does not confer upon the College Board the right to use CollegeLink
for any other purpose.
2. INTEGRATION. The College Board will be responsible for integrating
CollegeLink into the ExPAN program. The College Board will bear the costs of
such integration, including the costs of mapping the ExPAN personal profile
capability into the CollegeLink student software and the modification of the
CollegeLink software to accommodate multiple users in ExPAN.
ECI will provide reasonable technical support to the College Board, on
an ongoing basis, to assist the College Board with (i) the process of
integrating CollegeLink into ExPAN, (ii) the training of College Board personnel
in the use of CollegeLink and (iii) assisting the College Board and ExPAN users
in the resolution of any problems encountered in the use of CollegeLink. ECI
will continue to develop and modify CollegeLink to ensure CollegeLink files and
applications may be used in connection with ExPAN. On an ongoing basis, ECI will
update CollegeLink's programming to accommodate colleges which are new users to
the CollegeLink System.
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3. MARKETING ARRANGEMENT. In connection with the license grant
hereunder, the College Board will utilize CollegeLink, and make the CollegeLink
name and "CollegeLink" trademark visible in connection with its ExPAN program.
The combination of the CollegeLink and ExPAN software programs is hereinafter
referred to as "ExPAN-CollegeLink".
The College Board agrees to use reasonable efforts to actively market
ExPAN-CollegeLink. Such marketing-related undertakings will include, without
limitation:
(a) CollegeLink will be integrated into ExPAN so that it may
be downloaded by users of ExPAN. CollegeLink software will be available for free
distribution to users other than ExPAN users on the College Board Website,
College Board Online.
(b) The College Board agrees to train its regional consultants
and service representatives to enable them to better provide information
services and access to users and potential users of ExPANCollegeLink.
(c) ECI will be allowed to participate in ExPAN related
activities at College Board regional and national conferences, as well as
seminars for colleges, secondary schools and college fairs, to provide
information about ExPAN-CollegeLink.
(d) The College Board and ECI will engage in mutually agreed
upon joint marketing activities relating to ExPAN-CollegeLink.
(e) The College Board will engage in appropriate direct
marketing activities to provide information about ExPAN-CollegeLink in a manner
it deems reasonable.
4. FEES. (a) In addition to ECI's provision of the services and
software development set forth in Section 2 hereof, and as a reimbursement of
software expenses for college application replications of low revenue-producing
institutions in the amount of $125 per replication (as determined based upon a
list of colleges subject to such fee to be mutually agreed upon by the parties),
the College Board shall remit to ECI payments, not to exceed $25,000 per year,
as follows. Payments will be remitted by the College Board to ECI on each July 1
and September 30, with the first payment of $15,000 due on July 1, 1998.
Thereafter, payments will be made by the College Board based upon bills
submitted to the College Board by ECI and as shall be agreed upon by the
parties, provided that, the July 1, 1999 payment shall not exceed $15,000. In
the event that during the term of this Agreement the scope and/or amount of such
services materially changes, as reasonably determined by either party, upon
notice to the other party of such material change, each party agrees that it
will in good faith use its best efforts to negotiate promptly an adjustment to
the annual payment due under this Section 4(a).
(b) In connection with the services that the College Board provides
hereunder, ECI will remit to the College Board semi-annually on each December 31
and June 30 25% of the revenue collected by ECI in such semi-annual period from
student fees associated with, and college fees associated with, (i)
ExPAN-CollegeLink and (ii) CollegeLink software downloaded
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from College Board Online, as set forth below. Revenues collected by ECI from
student fees shall equal the aggregate revenue received from such students minus
shipping and handling costs associated with earning such revenues. Revenues
collected by ECI from colleges shall equal the product of (x) the aggregate
revenue received from such colleges and (y) the ratio that (i) the aggregate
number of applications prepared for colleges through CollegeLink attributable to
ExPAN-CollegeLink and CollegeLink software downloaded from College Board Online
bears to (ii) the aggregate number of applications prepared through CollegeLink.
5. BOOKS AND RECORDS. At the College Board's request, ECI will make
available, during normal business hours and upon reasonable notice, the relevant
books and records in respect of the amounts payable by ECI pursuant to Section 4
(b) of this Agreement for audit by the College Board or its agents, auditors,
accountants, or other representatives.
6. MONTHLY ACCOUNTING. ECI will provide to the College Board on a
monthly basis a written accounting of its collections and revenues from, and
reports of the number of applications by institution generated through, (i)
ExPANCollegeLink and (ii) CollegeLink software downloaded from College Board
Online.
7. SHARING OF ENHANCEMENTS. The College Board and ECI shall each
document and disclose promptly to the other, without charge, all future
installment modifications or enhancements of CollegeLink and ExPAN which become
known to either of them, except any such installment modifications or
enhancements which are the proprietary and confidential information of any third
party.
8. PROPRIETARY RIGHTS. (a) ECI acknowledges that ExPAN and College
Board Online, including all future installment modifications and enhancements
referred to in Section 7 above and developed by either party hereto, are and
shall at all times remain the College Board's and ETS' property and that,
without limiting the generality of the foregoing, as between the College Board,
ETS and ECI, the College Board and ETS are the owners of all rights therein
including, without limitation, (a) any copyrights and all renewals and
extensions thereof, (b) any trade secrets or know-how embodied therein, (c) any
technical data or information contained therein, and (d) the design and visual
front-end appearance to any user of ExPAN or the College Board Online.
(b) The College Board and ETS acknowledge that CollegeLink,
including all future installment modifications and enhancements referred to in
Section 7 above and developed by either party hereto, is and shall at all times
remain ECI's sole and exclusive property and that, without limiting the
generality of the foregoing, as between ECI, the College Board and ETS, ECI is
the sole and exclusive owner of all rights therein including, without
limitation, (a) any copyrights and all renewals and extensions thereof, (b) any
trade secrets or know-how embodied therein, (c) any technical data or
information contained therein, and (d) the design and visual front-end
appearance to any User of CollegeLink.
9. RIGHTS IN DATA. All data, including names, collected or obtained by
ECI through ExPAN-CollegeLink or CollegeLink software downloaded from College
Board Online shall be
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used solely for its intended admissions related purposes, as authorized by the
providers of such data, and may not be sold, distributed or otherwise
appropriated for ECI's own use.
10. CONFIDENTIAL INFORMATION. The parties recognize that it may be
desirable or necessary for one party the "Disclosing Party") to disclose to the
other party (the "Receiving Party") confidential and proprietary information of
the Disclosing Party ("Confidential Information"). In the event of any such
disclosure, the Receiving Party agrees that for a period of 2 years from the
date of disclosure of Confidential Information by a Disclosing Party to the
Receiving Party, the Receiving Party shall:
(i) receive all Confidential Information disclosed to it,
whether written or oral, in strictest confidence, and shall not
disclose Confidential Information to any person other than those
of its employees or agents to whom disclosure of such
Confidential Information is necessary in connection with the
performance of this Agreement;
(ii) receive and utilize all Confidential Information
disclosed to it solely in connection with the performance of this
Agreement;
(iii) safeguard all Confidential Information disclosed to
it, and prevent Confidential Information from becoming disclosed
to any unauthorized person or entity; and
(iv) promptly return to the Disclosing Party, upon
reasonable request at the termination of this Agreement, all
documents in the possession or control of the Receiving Party or
its agents that contain o r relate to Confidential Information.
As used herein, "Confidential Information" shall not include any data
or information that:
(i) was in the lawful possession of the Receiving Party,
without obligation of confidentiality, prior to disclosure of
such information by the Disclosing Party;
(ii) is furnished to the Receiving Party by a third party
without breach of any obligation of confidentiality to the
Disclosing Party;
(iii) becomes publicly known without breach of any
obligation of confidentiality to the Disclosing Party;
(iv) this Agreement, or the Disclosing Party in writing,
shall expressly permit the Receiving Party to publicly disclose;
or
(v) was developed, invented, or otherwise known to the
Receiving Party outside of its services under this Agreement.
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The obligations of the parties under this Section shall survive
termination of this Agreement. Nothing contained in this Agreement shall be
deemed to transfer or confer ownership or other exclusive rights from the
Disclosing Party to the Receiving Party of any Confidential Information or other
information owned by the Disclosing Party, or in the public domain.
11. RELATIONSHIPS OF PARTIES. This Agreement is non-exclusive and
either party is free to enter into and continue similar arrangements with other
parties, to provide products and services to any licensee or prospective
licensee and to develop, completely independently of the products and services
which are the subject of this Agreement, use or market products, services or
materials similar to or competitive with the products and services which are the
subject of this Agreement; provided such arrangements and efforts do not violate
the provisions of or interfere with the obligations of the parties under this
Agreement; and provided, further, that the College Board shall not provide
access through ExPAN to any college application service other than CollegeLink.
12. INDEMNIFICATION. ECI agrees to indemnify, hold harmless and
defend the College Board and its directors, officers, employees, vendors and
agents from any and all incurred fines, penalties, judgments, losses, claims,
liabilities, damages, costs and expenses (including reasonable attorney's fees
and costs of suit) relating to this Agreement to the extent they arise out of:
(i) a breach of ECI's obligations set forth in this
Agreement, except to the extent caused by the College Board's (or
any of its employees') negligence, willful misconduct, bad faith,
or reckless disregard of its duties and obligations under this
Agreement;
(ii) the willful misconduct or intentionally tortious
conduct of ECI (or any of its employees) in connection with the
performance of obligations under this Agreement; or
(iii) any failure by ECI to comply with any terms of this
Agreement;
The College Board agrees to indemnify, hold harmless and defend ECI and
its directors, officers, employees, vendors and agents from any and all incurred
fines, penalties, judgments, losses, claims, liabilities, damages, costs and
expenses (including reasonable attorney's fees and costs of suit) relating to
this Agreement to the extent they arise out of:
(i) a breach of the College Board's obligations set forth in
this Agreement, EXCEPT to the extent caused by ECI's (or any of
its employees') negligence, willful misconduct, bad faith, or
reckless disregard of its duties and obligations under this
Agreement;
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(ii) the willful misconduct or intentionally tortious
conduct of the College Board (or any of its employees) in
connection with the performance of obligations under this
Agreement; or
(iii) any failure by the College Board to comply with any
terms of this Agreement.
The provisions of this Section 12 shall survive the termination or
expiration of this Agreement and shall extend to any claims brought hereunder to
the attention of the other party before the second anniversary of the date of
such termination or expiration.
13. TERM. This Agreement shall be in effect for two years from the date
hereof, with an option for a third year, upon the mutual agreement of the
parties. Thereafter, this Agreement may be renewed for successive periods by
mutual agreement of the parties. The College Board or ECI, however, may at any
time deliver to the other at least one year's prior written notice of its
election to terminate this Agreement, whereupon this Agreement shall terminate
at the end of such notice period or such lesser period as may be required by
law. Upon the expiration or termination of this Agreement, the College Board
shall promptly return to ECI, at the College Board's expense, (i) all materials
in the College Board's possession constituting CollegeLink (including without
limitation all system tapes, disks, technical manuals, and other software)
delivered by the ECI to the College Board for College Board's use, and (ii) any
copies of such materials made by the College Board.
14. AUTHORITY. Each of the College Board and ECI hereby represents and
warrants to the other that it has the right and authority to enter into this
Agreement, and that the Agreement is the legal, valid and binding obligation of
the party enforceable against it in accordance with its terms.
15. NOTICES. All notices or other communications hereunder shall be
deemed to have been duly given and made if in writing and if served by personal
delivery upon the party for whom it is intended on the day so delivered, if
delivered by registered or certified mail, return receipt requested, on the
third business day following such mailing or by a national courier service on
the business day following such mailing, or if sent by facsimile on the day
sent, or if not a business day, the next succeeding business day, provided that
the facsimile is promptly confirmed by telephone confirmation thereof, to the
person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such person:
The College Board
00 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Senior Vice President,
Facsimile: (000) 000-0000
With a copy to:
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Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx III
Facsimile: (000) 000-0000
and to ECI at:
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, President
Facsimile: (000) 000-0000
With a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
16. LAW GOVERNING. This Agreement shall be construed in accordance with
and governed by the laws of the state of New York applicable to agreements made
and to be performed in New York without regard to its conflicts of laws
principles.
17. LIMITATION OF LIABILITY. In no event shall either party be liable
to the other for any lost profits or any claim based upon any third party claim
or ANY INDIRECT, INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
18. ASSIGNMENT. Rights and obligations under this Agreement may not be
assigned or delegated by any party, or succeeded to by the successors or
permitted assignees of any party, without the written consent of the other
party, and any attempt to assign any rights or delegate any obligations, or
succeed to any rights or obligations arising under this Agreement, without such
written consent shall be void and shall result in the immediate termination of
this Agreement at the election of the other party.
19. AMENDMENT; WAIVER. Any provision of this Agreement may be amended
or waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by the parties, or in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof or the exercise
of any other right, power or privilege. Except as otherwise provided herein, the
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
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20. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out so far as may be
valid and enforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision , or the application thereof, in any other jurisdiction.
21. THIRD-PARTY RIGHTS. Nothing contained in this Agreement, express or
implied, establishes or creates, or is intended or will be construed to
establish or create, any right in or remedy of, or any duty or obligation to,
any third party.
IN WITNESS WHEREOF, the College Board and ECI have executed and
delivered the Agreement as of the date first written above.
COLLEGE ENTRANCE
EXAMINATION BOARD
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Attest: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X.XxXxxxxx
Title: Asst. Treasurer
ECI, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
Attest:
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Name:
Title:
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