EXHIBIT 10.16
RE/MAX UNIVERSITY SITE DEVELOPMENT,
HOSTING AND MANAGEMENT AGREEMENT
This AGREEMENT is entered into and shall be effective this 6th day of
February, 2001 (the "Effective Date") by and among ▇▇▇▇▇▇▇▇▇▇.▇▇▇
("▇▇▇▇▇▇▇▇▇▇.▇▇▇"), a Joint Venture of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a Minnesota
corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ENTREPORT CORPORATION, a Florida
corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. ("UCI"); ENTREPORT
CORPORATION ("ENTREPORT"); and RE/MAX INTERNATIONAL, INC., a Colorado
corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("RE/MAX").
WHEREAS, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is in the business of developing and hosting
private-label, on-line training and education websites for use by companies in
training employees, contractors and other service providers; and
WHEREAS, RE/MAX is engaged in the franchising of independently owned
and operated real estate brokerage offices specializing in the marketing of real
estate and related services; and
WHEREAS, RE/MAX desires to engage ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to develop and
implement a customized, on-line training and education program for use by RE/MAX
Broker/Owners, RE/MAX Sales Associates affiliated with a RE/MAX office, and
employees of or individuals affiliated with a RE/MAX Region or the RE/MAX
Organization (collectively "RE/MAX Affiliates"); and
WHEREAS, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ desires to provide an on-line training and
education program for RE/MAX pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of these recital which are
incorporated herein, the mutual covenants set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "CONFIDENTIAL INFORMATION" is defined in Section 9.
1.2 "COURSES" shall mean the general real estate and
professional business training courses listed on Exhibit A, the EntrePort
Courses listed on Exhibit B, and any courses developed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ using
the RE/MAX Course Content, which shall be offered to RE/MAX Users on the Site.
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1.3 "COURSE CONTENT" shall refer collectively to the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content, EntrePort's Course Content, RE/MAX Course
Content, RE/MAX Third Party Course Content and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course
Content, and any updates or revisions thereto.
1.4 "ENTREPORT COURSE CONTENT" shall mean all educational
materials and learning components created by EntrePort Corporation, prior to the
Effective Date, or created by EntrePort and included in the Courses attached as
Exhibit B pursuant to this Agreement, and licensed to RE/MAX hereunder.
1.5 "ENTREPORT COURSES" shall mean the general real estate and
professional training courses and just-in-time training modules listed on
Exhibit B.
1.6 "RE/MAX COURSE CONTENT" shall mean all educational
materials and learning components created by RE/MAX for the Courses and provided
to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ by RE/MAX for inclusion in the Courses.
1.7 "RE/MAX COURSE CONTENT ADDENDUM" shall mean the addendum,
in a form substantially similar to Exhibit G, that RE/MAX shall provide to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ from time to time to amend the RE/MAX Course Content Schedule and
to authorize and provide additional RE/MAX Course Content to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for
development of Courses incorporating the RE/MAX Course Content.
1.8 "RE/MAX COURSE CONTENT SCHEDULE" shall mean the schedule
attached hereto as Exhibit F, which will be revised as necessary, pursuant to
which the RE/MAX Course Content shall be delivered to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ by RE/MAX,
and the fee to be paid by RE/MAX to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for development of Courses
incorporating the RE/MAX Course Content.
1.9 "RE/MAX MAINSTREET" shall mean the RE/MAX extranet website
currently at ▇▇▇.▇▇▇▇▇.▇▇▇ that is accessible by RE/MAX Affiliates and RE/MAX
Approved Suppliers who have been issued valid user ids and passwords by RE/MAX.
1.10 "RE/MAX MATERIALS" shall refer collectively to the RE/MAX
Course Content and the RE/MAX Site Content.
1.11 "RE/MAX SITE CONTENT" shall mean the RE/MAX name,
trademarks, service marks, logos, slogans, trade dress and other proprietary
descriptions, whether registered or unregistered (collectively the "RE/▇▇▇
▇▇▇▇▇"), designs, text, images, graphics, and other material provided to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ by RE/MAX for inclusion on the Site in an electronic format
acceptable to ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
1.12 "RE/MAX THIRD PARTY COURSE CONTENT" shall mean all
educational, technical and other content for the Courses licensed by RE/MAX from
a third party that are included in the Site. Inclusion of such content on the
Site is subject to approval by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ per Section 2.6 and subject to
technical integration and feasibility as determined by ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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1.13 "RE/MAX USER" shall mean a RE/MAX Affiliate who has been
issued a password by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for access to the Site.
1.14 "PRODUCTION DATE" shall mean the date on which the Site
is first available for use by all RE/MAX Users. The parties anticipate that the
launch of the Site will be no later than April 1, 2001. A two-week beta test
with 50-100 users shall begin no later than March 15, 2001. Demonstrations of
the Site will be presented at the Annual RE/MAX International Convention in San
Diego, CA to be held February 25, 2001 - March 1, 2001.
1.15 "SITE" shall mean the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ - RE/MAX co-branded
website developed and hosted by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for on-line training and
education programs, located at ▇▇▇▇://▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, accessible by RE/MAX
Users and only through RE/MAX Mainstreet. The Site, and access to the Site, will
be prominently featured on RE/MAX Mainstreet.
1.16 "SITE CONTENT" shall mean all content on the Site,
including but not limited to, text, images, graphics and other materials.
1.17 "SPECIFICATIONS" shall mean the functional and design
specifications for the Site set forth in Exhibit C hereto.
1.18 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ COURSES" shall mean the general real
estate and professional training courses listed on Exhibit A.
1.19 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ COURSE CONTENT" shall mean all
educational materials and learning components created by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ prior to
the Effective Date, or created by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and included in the Courses
pursuant to this Agreement, and licensed to RE/MAX hereunder.
1.20 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ MATERIALS" shall mean the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Courses, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content, and the designs, layout, structure,
sequence, organization, text, images, graphics, audio clips, software and other
material contained on or within the Site, excluding the RE/MAX Materials.
1.21 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ THIRD PARTY COURSE CONTENT" shall mean
all educational, technical and other content for the Courses licensed by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ from a third party, excluding the RE/MAX Content, that are
included in a Course.
1.22 "USER AGREEMENT" shall mean the on-line license
agreement, a copy of which is attached hereto as Exhibit D, and as may be
revised from time to time, to which RE/MAX Users must agree before being
permitted access to the Site and the Course Content.
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1.23 "VIRTUAL UNIVERSITY" shall mean ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
proprietary software for delivering on-line, real estate-specific business
training courses and related course management services.
2. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ OBLIGATIONS; RIGHT OF REMOVAL.
Pursuant to the terms of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall perform
the following services:
2.1 SITE DESIGN AND CUSTOMIZATION. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall design
and customize the Site in accordance with mutually agreeable Specifications.
2.2 COURSE DEVELOPMENT. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall, using the Course
Content, develop the Courses, and make them available to RE/MAX Users via the
Site pursuant to the User Agreement. Development of Courses incorporating the
RE/MAX Course Content will be authorized by and pursuant to the RE/MAX Course
Content Addendum.
2.3 ACCEPTANCE. All Courses, Course Content, Site Content, the
User Agreement and all revisions, enhancements, modifications or changes thereto
shall be approved in writing by RE/MAX prior to their use or display on the
Site. All Site Design and Customization ("Services") shall at all times be
subject to RE/MAX's reasonable satisfaction and approval as provided herein.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide RE/MAX with reasonably detailed specifications for
the Services. RE/MAX shall approve the final specifications before
▇▇▇▇▇▇▇▇▇▇.▇▇▇ commences the Services. Upon approval of the final
specifications, the parties will develop a mutually agreeable production
schedule for the performance of the Services. Thereafter, any changes made by
RE/MAX to the specifications shall result in additional charges to be paid by
RE/MAX at the rate of $150 per hour to implement the changes to the
specifications. The Site Design and any Customization to the Site shall be
approved in writing by RE/MAX prior to the Site going "live". ▇▇▇▇▇▇▇▇▇▇.▇▇▇
agrees that the Site shall have the same functionality as its own website
located at ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ and any updates
or enhancements it makes to its own website that pertains to the functionality
of the Site shall also be made to the Site at no expense to RE/MAX.
2.4 SITE HOSTING. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall host the Site on the
server located at its data center in Minneapolis, Minnesota. Commencing on the
Production Date, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall use commercially reasonable efforts to
make the Site fully operational and continuously available to RE/MAX Users at
least 99.0% of the time during each month of the term of this Agreement, with
the exception of: (a) regularly scheduled maintenance and required repairs to be
performed during off-peak hours, and (b) any loss or interruption of hosting
services due to causes beyond ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s control, including, without
limitation, interruption or failure related to RE/MAX Mainstreet, or
telecommunication or digital transmission links, and Internet failures or shut
downs and third party DNS hosting failures.
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2.5 SITE MAINTENANCE AND TECHNICAL SUPPORT. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall use commercially reasonable efforts to provide RE/MAX with reasonable
assistance to maintain and update the Site during the term of this Agreement,
and shall provide standard technical assistance to RE/MAX and RE/MAX Users in
the operation and use of the Site and the Courses, including but not limited to
the correction of browser problems, bugs, Site errors, and as otherwise set
forth on Exhibit E. Additional maintenance services will be provided for a fee,
which shall be negotiated between the parties.
2.6 RIGHT OF REMOVAL AND USER TERMINATION. RE/MAX acknowledges
and agrees that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have the right to remove from, or refuse to
include on the Site, any RE/MAX Materials which ▇▇▇▇▇▇▇▇▇▇.▇▇▇ reasonably
believes are unlawful, distasteful or violate the rights of a third party
(including, without limitation intellectual property rights). Upon written
notice to RE/MAX, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have the right to suspend or terminate
the password and account of any RE/MAX User who is in violation of the terms of
the User Agreement.
2.7 PROMOTION BY ▇▇▇▇▇▇▇▇▇▇.▇▇▇. To promote the Site,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ will undertake the joint promotional efforts as more particularly
set forth in Exhibit "H" hereto.
2.8 SECURITY OF SITE. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees that any
information provided to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ by a RE/MAX User to access the Site is
maintained, accessed and transmitted in a secure environment and in compliance
with security specifications consistent with the security policy used by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ on its own website and in accordance with all applicable laws and
regulations. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to maintain the confidentiality of any
information obtained from a RE/MAX User and in no event shall ▇▇▇▇▇▇▇▇▇▇.▇▇▇
sell, trade, rent or in any way make available any personal information,
confidential information or proprietary information of any RE/MAX User accessing
the Site or in any way obtained from a RE/MAX User without the permission of the
party owning such information. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees that all cross-marketing to
RE/MAX Users shall first be approved in writing by RE/MAX.
2.9 SITE NOTICE. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall post and maintain, in
upper case bold print in eight point font, the following notice at the bottom of
the first page of the Site:
"RE/MAX International, Inc. may receive a fee from
▇▇▇▇▇▇▇▇▇▇.▇▇▇ in consideration for ▇▇▇▇▇▇▇▇▇▇.▇▇▇ being
selected as the provider of on-line training and education
programs for RE/MAX Affiliates."
3. RE/MAX OBLIGATIONS.
3.1 DELIVERY OF RE/MAX SITE CONTENT. Within thirty (30) days
after the Effective Date, RE/MAX shall deliver to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ the RE/MAX Site
Content to be included on the Site.
3.2 DELIVERY OF RE/MAX COURSE CONTENT AND RE/MAX THIRD PARTY
COURSE CONTENT. RE/MAX Course Content and RE/MAX Third Party Course Content will
be delivered in accordance with the RE/MAX Course Content Schedule, as such is
amended from time to time by the RE/MAX Course Content Addendum.
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3.3 CONTENT CONTROL. RE/MAX acknowledges and agrees that it
will be solely responsible for creating, reviewing, and authorizing
modifications to the RE/MAX Materials. RE/MAX acknowledges that ▇▇▇▇▇▇▇▇▇▇.▇▇▇
is acting as a passive conduit for the distribution and publishing of the RE/MAX
Materials. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has no obligation to RE/MAX, and undertakes no
responsibility, to review the RE/MAX Content to determine whether any such
content may incur liability to third parties.
3.4 PROMOTION BY RE/MAX. To promote the Site, RE/MAX will
undertake the joint promotional efforts as more particularly set forth in
Exhibit "H" hereto.
3.5 PREFERRED PROVIDER. RE/MAX agrees that during the Initial
Term (as defined below) of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be the RE/MAX
Preferred Provider for online training and education programs for RE/MAX Users
on RE/MAX Mainstreet (or any replacement site).
(a) Except as provided in Section 3.5(c), and except as set
forth in this Section 3.5(a), RE/MAX will not employ other third party providers
for the purpose of developing and delivering online training materials and
educational programs over RE/MAX Mainstreet unless ▇▇▇▇▇▇▇▇▇▇.▇▇▇ notifies
RE/MAX in writing that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not able to deliver the training
materials or educational materials on-line over the Site due to technical
incompatabilities or ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not able to agree to commercially
reasonable terms with a third party provider for the development and delivery of
the training materials or educational programs over the Site. Any online
training materials developed and delivered over the Site by a third party shall
not be duplicative of any Courses offered by ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Notwithstanding the
foregoing, RE/▇▇▇ ▇▇▇ re-purpose any company news, company information or
company announcements, now or hereafter available on the RE/MAX Satellite
Network, and to stream said material through a third party provider over RE/MAX
Mainstreet or otherwise make said material available on RE/MAX Mainstreet.
(b) All online training materials and educational programs,
whether developed by a third party, RE/MAX or ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be included
as a class title in the Unlimited Access Fee Program.
(c) Notwithstanding anything to the contrary herein, RE/▇▇▇
▇▇▇ employ a third party to re-purpose courses currently or hereafter licensed
to RE/MAX for telecast over the RE/MAX Satellite Network to satisfy an approved
designation, including but not limited to CRS, ABR, ABRM, C1101, CIPS, CRB, RRS
and CRES designations, the e-pro certification, and other courses mutually
agreed to between RE/MAX and ▇▇▇▇▇▇▇▇▇▇.▇▇▇, and to stream said courses over
RE/MAX Mainstreet. Any online training materials developed by a third party for
RE/MAX pursuant to this Section 3.5(c) shall not be duplicative of any Courses
offered by ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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3.6 HYPERLINK. RE/MAX agrees to create and maintain a
hyperlink, and text or banner advertising with respect to ▇▇▇▇▇▇▇▇▇▇.▇▇▇, on the
e-Marketplace section of RE/MAX Mainstreet with click through capabilities to
the Site.
3.7 ROSTER EXPLORER. RE/MAX agrees to provide to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ the RE/MAX Roster Explorer CD ROM database containing information
on RE/MAX Affiliates for ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s use in marketing and promoting its
on-line training and education programs on the Site. RE/MAX agrees to provide
▇▇▇▇▇▇▇▇▇▇.▇▇▇ an updated database in CD ROM format or comparable medium on a
quarterly basis throughout the term of this Agreement.
4. PASSWORD ADMINISTRATION.
4.1 CURRENT RE/MAX MAINSTREET MEMBERS. RE/MAX will provide
▇▇▇▇▇▇▇▇▇▇.▇▇▇ with all reasonable information requested to facilitate
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s issuance of passwords to current RE/MAX Mainstreet Members for
access to the Site on the Effective Date of this Agreement.
4.2 USER LOG-IN. Whenever a RE/MAX Affiliate accesses RE/MAX
Mainstreet, he/she will have access to the Site by clicking on the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ hyperlink on RE/MAX Mainstreet. By clicking the hyperlink, data
(name, password, user ID, and unique Associate number) will be automatically
transmitted electronically from RE/MAX Mainstreet to the Site and permit the
RE/MAX Affiliate to access the Site.
5. LICENSE GRANTS.
5.1 BY ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Subject to the terms of this Agreement,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby grants to RE/MAX and RE/MAX Users for the term of this
Agreement, a non-exclusive , non-transferable, limited license, without right of
sublicense, to access, display and use the Site, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Courses,
EntrePort Courses, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content, EntrePort Course Content,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course Content, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, and the
Registration Materials. RE/MAX shall not download or otherwise reproduce,
distribute, modify, reverse engineer, decompile or disassemble any
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Courses, EntrePort Courses, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content,
EntrePort Course Content, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course Content,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, or the Registration Materials except as expressly
permitted by this Agreement or the User Agreement. RE/MAX shall not allow any
third party, with the exception of RE/MAX Users and Approved Suppliers, to
access the Site. RE/MAX acknowledges and agrees that use of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Third Party Course Content is subject to ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s agreements with its
licensors, and that such licensors may have the right to modify or terminate
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s right to use and sub-license the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party
Course Content at any time.
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5.2 BY RE/MAX. Subject to the terms of this Agreement, RE/MAX
hereby grants to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for the term of this Agreement, a revocable,
non-exclusive, non-transferable, limited license, without right of sublicense,
to use and include the RE/MAX Course Content, and text, images, graphics and
other materials provided by RE/MAX to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in connection with the Site
and ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s performance of its obligations hereunder. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
acknowledges and agrees that use of the RE/MAX Third Party Course Content is
subject to RE/MAX's agreements with its licensors, and that such licensors may
have the right to modify or terminate RE/MAX's right to use and sublicense the
RE/MAX Third Party Course Content at any time.
5.3 TRADEMARK LICENSES.
(a) During the term of this Agreement and subject to the terms
provided herein, RE/MAX hereby grants to ▇▇▇▇▇▇▇▇▇▇.▇▇▇, a non-exclusive,
non-transferable, limited license, without right of sublicense, to use and
display in connection with the Site and in any presentations, promotional or
informational materials with respect to the Site, the RE/▇▇▇ ▇▇▇▇▇ as contained
in the RE/MAX Trademark and Graphic Standards Manual, a copy of which has been
provided to ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ expressly acknowledges that RE/MAX is
the owner of all right, title and interest in and to the RE/▇▇▇ ▇▇▇▇▇ and agrees
that it shall not at any time have or acquire any interest in or to the RE/▇▇▇
▇▇▇▇▇ and further agrees that all such use or display of the RE/▇▇▇ ▇▇▇▇▇ inures
to the exclusive benefit of RE/MAX and automatically vests in and remains the
property of RE/MAX. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees that any use or display of the RE/▇▇▇
▇▇▇▇▇ must be approved in writing prior to their use or display and
▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to abide by all standards and guidelines of RE/MAX with
respect to the proper use and display of the RE/▇▇▇ ▇▇▇▇▇ as shown in the RE/MAX
Trademark and Graphic Standards Manual, as from time to time amended.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees not to use the RE/▇▇▇ ▇▇▇▇▇ for any other purpose without
the prior written consent of RE/MAX.
(b) During the term of this Agreement and subject to the terms
provided herein, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby grants to RE/MAX, a non-exclusive,
non-transferable, limited license, without right of sublicense, to use and
display in connection with the Site and in any presentations, promotional or
informational materials with respect to the Site, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks.
RE/MAX expressly acknowledges that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is the owner of all right,
title and interest in and to the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks and agrees that it shall
not at any time have or acquire any interest in or to the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks
and further agrees that all such use or display of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks
inures to the exclusive benefit of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and automatically vests in and
remains the property of ▇▇▇▇▇▇▇▇▇▇.▇▇▇. RE/MAX agrees that any use or display of
the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks must be approved in writing prior to their use or
display and RE/MAX agrees to abide by all standards and guidelines of
▇▇▇▇▇▇▇▇▇▇.▇▇▇ with respect to the proper use and display of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Marks. RE/MAX agrees not to use the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks for any other purpose
without the prior written consent of ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
8
(c) Upon expiration or termination of this Agreement each
party shall immediately cease and desist from all use of each others Marks and
all use of the materials licensed to the other party under Section 5.1 and
Section 5.2 and shall within thirty (30) days after termination or expiration of
this Agreement deliver to the other party or destroy all materials which are
held by that party containing or referring to the other party's Marks or the
other party's materials licensed under Section 5.1 and Section 5.2. Further,
immediately upon termination or expiration of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall cease operation of the Site.
(d) RE/MAX hereby designates ▇▇▇▇▇▇▇▇▇▇.▇▇▇ during the term of
this Agreement as a RE/MAX Approved Supplier. RE/MAX authorizes ▇▇▇▇▇▇▇▇▇▇.▇▇▇
to use or display the RE/MAX Approved Supplier logo only in connection with
advertising and promotion of the Site to RE/MAX Affiliates and only for the
limited purpose of identifying itself as a RE/MAX Approved Supplier.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to display the RE/MAX Approved Supplier logo in all
advertising and promotion of the Site. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees that the RE/MAX
Approved Supplier logo will always be used or displayed in such a manner as to
ensure that RE/MAX Affiliates and the public understand that, except for its
designation as a RE/MAX Approved Supplier or pursuant to this Agreement,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not in any way related to, sponsored by or affiliated with
RE/MAX. RE/MAX further authorizes ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to include the service ▇▇▇▇
"REMAX", but no other RE/▇▇▇ ▇▇▇▇▇, as part of the post-domain path of
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s Internet URL address (e.g. ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇) provided,
however, that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ first obtains the prior written approval of RE/MAX
before using "REMAX" as part of the post-domain path of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
Internet URL address. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledges that RE/MAX is the exclusive
owner of the RE/MAX Approved Supplier logo and the various other RE/▇▇▇ ▇▇▇▇▇
and that any goodwill established by ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s use of the RE/MAX Approved
Supplier logo will inure exclusively to, vest automatically in and remain solely
and exclusively the property of RE/MAX. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ understands and agrees
that it shall have no rights to use or display any of the RE/▇▇▇ ▇▇▇▇▇ except as
expressly granted herein.
6. FEES AND PAYMENT. All fees payable hereunder will be paid in U.S.
Dollars.
6.1 MAINTENANCE AND SUPPORT FEE. RE/MAX shall pay to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Three Thousand Five Hundred Dollars ($3,500) quarterly for
maintenance and support of the Site as set forth herein, which amount shall be
due and payable on the first day of each ninety (90)-day period following the
Effective Date of this Agreement. Said fee shall be increased by $50 per month
for each hour of video content hosted by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ on the Site. Said fee is
based upon the hosting of the Site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇. In the event that it
becomes necessary to co-locate the Site hosting on any other server, then said
fees shall be subject to adjustment, as mutually and reasonably agreed upon by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ and RE/MAX.
9
6.2 COURSE DEVELOPMENT FEES. RE/MAX shall pay ▇▇▇▇▇▇▇▇▇▇.▇▇▇ a
fee for each developed hour of Course Content created by ▇▇▇▇▇▇▇▇▇▇.▇▇▇
hereunder, using the RE/MAX Course Content provided to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ pursuant
to the RE/MAX Course Content Schedule in Exhibit F, as amended from time to time
by various RE/MAX Course Content Addendum, Exhibit G. The first ten hours of
developed Course Content, from existing RE/MAX Content, shall be at no
additional charge to RE/MAX. Any additional development shall be billed at the
rates set forth on Exhibit G-1 hereto. The developed Course Content shall be
made available in different formats (including streaming video and audio/slide
show as described in Exhibit G), with each format constituting a separate
developed hour of content. A "developed hour" of content shall be a Course that
consists of 10-12 five-minute lessons, depending upon the content and subject
matter thereof. The Course development fee for each Course, as set forth in the
RE/MAX Course Content Schedule and the RE/MAX Course Content Addendum, shall be
due and payable as follows: 50% of the Course development fee on the execution
of the RE/MAX Course Content Addendum, and 50% of the Course development fee
upon delivery by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ of the relevant Course to RE/MAX.
6.3 VIRTUAL UNIVERSITY MODIFICATION FEES. From time to time,
RE/▇▇▇ ▇▇▇ request that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ modify Virtual University to meet
specific requirements as identified by RE/MAX. In such instance, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall provide a proposal to RE/MAX describing the modifications and proposed
fees. The terms of such modifications shall be reasonably and mutually agreed to
between ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and RE/MAX and this Agreement shall be amended by the
parties in writing to cover such modifications.
6.4 UNLIMITED ACCESS FEE. RE/MAX Users will have unlimited
access to the EntrePort Courses and the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Courses. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
will charge the RE/MAX Users the discounted rate of $19.95 per month for
unlimited access to the Courses as set forth on Exhibit A and B, plus any
additions thereto as ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may make available as mutually agreed to
between ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and RE/MAX. This fee is subject to change and special
promotions, plus all applicable taxes. Any course listed on Exhibit A that is
subject to a third party license fee may be removed from the Unlimited Access
Fee and made available pursuant to a pay per view fee in ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s sole
discretion.
6.5 PAY-PER-VIEW FEE. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may, for certain Courses,
charge each RE/MAX User, pursuant to the terms of the User Agreement, a fee each
time a Course is viewed ("Pay-Per-View Fee"). Except as otherwise provided in
this Agreement, the Courses included in Pay-Per-View and the fee for viewing
shall be mutually agreed to between ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and RE/MAX, and shall include
any applicable taxes.
6.6 PREMIUM TRAINING SERVICES. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may charge a
RE/MAX User an annual fee for access to certain premium training services,
including but not limited to the By Referral Only coaching program, Main Events,
"ask the experts", coaching, and individualized marketing tools on the Site.
Such annual fees will be equal to or less than ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s generally
published rates for such premium training services, and shall include any
applicable taxes.
10
6.7 CONTINUING EDUCATION FEES. Continuing education content
shall be offered on the Site in order to permit RE/MAX Users to obtain credits
for state licensing requirements or credits toward professional designations.
All continuing education or professional designation content offered on the Site
will be provided on a pay-per-credit basis. The rates to be charged for
continuing education content and professional designation content will be equal
to or less than ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s generally published industry rates for such
content and shall include any applicable taxes.
6.8 REVENUE SHARING COMPENSATION.
(a) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall pay to RE/MAX twenty percent
(20%) of all course revenue generated from the Site during the preceding
calendar quarter, including but not limited to, revenues from the monthly
Unlimited Access fee, the Pay-Per-View Fee, and the Continuing Education Fee,
net of any content licensing fees, collected by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for any courses
listed on Exhibit A or B, courses developed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ using RE/MAX
Course Content, RE/MAX Third Party Course Content and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party
Course Content and any updates or revisions thereto.
(b) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall also pay RE/MAX ten percent
(10%) of all net e-commerce revenue generated from the Site (i.e. the
bookstore). E-commerce revenue includes, but is not limited to, books, tapes,
software, programs, seminars, coaching services (including Premium Training
Services), technology products, and products offered through strategic partners.
(c) All payments to RE/MAX under Section 6.8(a) and
(b) shall be due and payable no later than thirty (30) days after the end of
each calendar quarter and shall be based upon course revenues and e-commerce
revenues generated by the Site during the preceding calendar quarter commencing
on the Effective Date of this Agreement (payments due April 30; July 31; October
31; and January 31 of each year during the term of this Agreement). Payments due
pursuant to this Section 6.8 shall be accompanied by a report setting forth the
number of RE/MAX Users, Unlimited Access Fee revenues, Pay-Per-View Fee
revenues, Premium Training Services fee revenues, Continuing Education fee
revenues, and e-commerce revenues received by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in the preceding
calendar quarter. During the Initial Term of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will
guarantee that the revenue share compensation paid herein shall be at least
$20,000 in Year 1 of this Agreement and $30,000 in Year 2 of this Agreement.
Within thirty (30) days following the end of Year 1 of this Agreement and within
thirty (30) days following the end of Year 2 of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall pay to RE/MAX the difference between the revenue share compensation
actually paid to RE/MAX during Year 1 or Year 2, as appropriate, and the amount
of the guaranteed minimum for that year.
11
(d) RE/MAX and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledge that the
support of the regional offices and franchises is imperative to the success of
the parties' marketing efforts. In order to gain support from the regional
offices and franchises, the parties agree to offer the regional offices and
franchises a percentage of the royalty paid to RE/MAX pursuant to this
agreement, not to exceed fifty percent of RE/MAX's total commission. The amount
offered to each region or franchise shall be determined by mutual agreement of
the parties, on a case by case basis, depending upon the level of marketing
support or promotional efforts by the regional office or franchise.
6.9 TAXES.
(a) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall, in addition to the payments
required hereunder, pay all applicable sales, use, transfer or other taxes,
however designated, which are levied or imposed by reason of the transaction
contemplated hereunder; including income taxes on income which may be levied
against ▇▇▇▇▇▇▇▇▇▇.▇▇▇. The parties agree that the determination of the amount
of state and local sales and use taxes, if any, the jurisdiction to which such
taxes are to be paid, and any other determinations of a substantive or
procedural nature relating to such taxes, will be the responsibility of
▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(b) All such taxes shall be collected and remitted to
the appropriate state by ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have sole
responsibility for the timely payment of all applicable state and local sales
and use taxes with respect to RE/MAX Affiliates purchases of on-line training
and education programs from ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall indemnify and
hold RE/MAX harmless from and against the amount of any claims, lawsuits or
audits by state and local governmental agencies responsible for collecting sales
and use taxes. RE/MAX acknowledges that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will hold each RE/MAX
Affiliate who purchases on-line training or continuing education products
responsible for payment of all applicable taxes in connection with that
purchase.
7. PROPRIETARY RIGHTS.
7.1 ▇▇▇▇▇▇▇▇▇▇.▇▇▇ RIGHTS. Subject to the limited license
granted to RE/MAX hereunder, RE/MAX acknowledges and agrees that ▇▇▇▇▇▇▇▇▇▇.▇▇▇
is the exclusive owner of all proprietary rights, including but not limited to
copyrights, trademarks, patents and trade secrets, in and to the following
(a) Virtual University and Real Estate University;
(b) the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials;
(c) the Site Content, exclusive of the RE/MAX Site
Content;
(d) the Courses, exclusive of the RE/MAX Course
Content, RE/MAX Third Party Course Content; and
12
(e) the Registration Material.
7.2 RE/MAX RIGHTS.
(a) Subject to the limited license granted to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereunder, ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT acknowledge and
agree that RE/MAX is the exclusive owner of all right, title and interest in and
to the RE/MAX Course Content, RE/MAX Site Content, RE/▇▇▇ ▇▇▇▇▇, intellectual
property and technology, including but not limited to all worldwide patents,
copyrights, trademarks, trade secrets, confidential information and other
proprietary rights.
(b) ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT acknowledge and
agree that all RE/MAX Materials developed or prepared for RE/MAX by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ utilizing the RE/MAX Course Content and the RE/MAX Third Party
Course Content ("Work Product") shall be considered a work made for hire and
that RE/MAX shall be the owner of all right, title and interest in and to the
Work Product, including the copyright thereto. ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT
shall not use any Work Product, or portion thereof, for any purpose other than
as set forth in this Agreement without the prior written consent of RE/MAX.
7.3 PRIVACY.
(a) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and RE/MAX are committed to
protecting the privacy of personally identifiable customer information that may
be collected through the performance of this Agreement. ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and
ENTREPORT agree that personally identifiable information will be collected from
RE/MAX Users on the Site shall be in accordance with the privacy policy used by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ on the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Website. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall notify RE/MAX
of any material change to its privacy policy.
(b) Except as expressly provided herein,
▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT will not disclose to any third party the names
of any RE/MAX User obtained as a result of a RE/MAX User visiting the Site,
without the RE/MAX User's permission, except at the direction of a local, state,
or federal agency and only then under the power of subpoena and/or pursuant to a
valid court order.
7.4 OWNERSHIP AND INSPECTION OF BOOKS AND RECORDS. All
documents, books, and records furnished by RE/MAX to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this
Agreement shall remain the property of RE/MAX. All documents, books, and records
of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ pertaining to its on-line training and education programs,
whether original records or developed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in connection with its
duties under this Agreement shall remain the property of ▇▇▇▇▇▇▇▇▇▇.▇▇▇. All
documents, books and records relating to the on-line training and education
programs, whether original records of or developed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, shall be
open for inspection by RE/MAX at all reasonable times upon prior reasonable
written notice. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may store any or all of such documents, books,
and records on microfilm, CD-ROM, electronic or other medium.
13
8. TERM AND TERMINATION.
8.1 TERM. This Agreement shall commence on the Effective Date
and shall remain in full force and effect for a period of two (2) years (the
"Initial Term") from and after the Effective Date. Thereafter, this Agreement
shall automatically renew for successive one (1) year terms (each a "Renewal
Term") unless either party shall, at least one year prior to the expiration of
the Initial Term or any Renewal Term, give written notice to the other party of
its intention to terminate the Agreement.
8.2 TERMINATION. This Agreement may be terminated prior to the
expiration of the Initial Term or any Renewal Term as follows:
(a) This Agreement may be terminated prior to the
expiration of the Initial Term or any Renewal Term as follows: (i) at any time
by written agreement of the parties, (ii) at any time, by the non-defaulting
party, if any other party defaults on any of its obligations, representations,
warranties or covenants under this Agreement and the defaulting party fails to
cure such default within thirty (30) days of receiving written notice of such
default from the non-defaulting party; (iii) by any party upon thirty (30) days
prior written notice to the other parties upon the bankruptcy or insolvency or a
general assignment for the benefit of creditors by a party; or (iv) by RE/MAX
upon thirty (30) days prior written notice to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in the event
ownership or a controlling interest in ▇▇▇▇▇▇▇▇▇▇.▇▇▇, directly or indirectly,
by merger, consolidation or acquisition, or through a sale of substantially all
of its assets passes to a RE/MAX Competitor whom RE/MAX has not approved in
writing prior to such change of ownership or control. As used herein, a RE/MAX
Competitor is defined as a real estate service business or any other business or
enterprise that directly or indirectly competes with RE/MAX, any RE/MAX
Affiliate or any corporation controlled by or under the common control with
RE/MAX, including, but not limited to, any business that provides real estate
brokerage or property management services, sells or markets real estate
franchises or provides corporate relocation services or any entity that has an
ownership interest in a RE/MAX Competitor or is controlled by a RE/MAX
Competitor.
(b) Upon termination or expiration of this Agreement,
▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT shall immediately cease all use of the RE/▇▇▇
▇▇▇▇▇ and, in addition, ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT shall immediately
cease all use of the RE/MAX Approved Supplier logo, and otherwise refrain from
holding itself out as a current RE/MAX Approved Supplier, and ▇▇▇▇▇▇▇▇▇▇.▇▇▇,
UCI and ENTREPORT shall return to RE/MAX all lists, rosters, directories, data
bases containing the names of RE/MAX Affiliates or other membership lists or
information or materials that may have been furnished by RE/MAX to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ in connection with this Agreement, and shall thereafter refrain
from the use of any such information in the solicitation of business. Nothing
contained herein shall limit ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s use of information obtained
directly from, and with the written permission of, the RE/MAX Users.
14
(c) Upon termination or expiration of this Agreement,
RE/MAX shall immediately cease all use of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks and
proprietary rights.
9. CONFIDENTIAL INFORMATION.
(a) Each party acknowledges and agrees that a duty is owed to
the other parties to maintain the confidentiality of information provided by the
other parties, or obtained from the other parties in connection with this
Agreement. Each party shall treat as strictly confidential, and shall not use,
disclose or permit to be used or disclosed at any time prior to or after the
termination or expirations of this Agreement, except as specifically permitted
in writing by the other parties, the proprietary or confidential information of
the other parties or of any RE/MAX User, whether any party has such information
in its memory or it is embodied in writing or other physical form. Confidential
or proprietary information shall include any information of any party or any
RE/MAX User which is not generally known or does not become known to the public,
such as, without limitation, any development, sales, financial or accounting
procedures, accounts, operations, techniques, methods, business plans, trade
secrets, or the identity or proprietary information of any customers, any and
all information regarding any party's business or how any party does business
("Confidential Information"). Confidential Information shall further include
this Agreement. Each party shall promptly advise the other parties in writing of
any unauthorized use or disclosure of the other party's Confidential
Information. Each party agrees to maintain, and cause its employees, agents and
subcontractors to maintain, the terms and conditions of this Agreement,
including compensation, strictly confidential, and not to disclose same to any
third party, except as expressly permitted in writing by the other party or
except as required by government regulatory authority or applicable law. Each
party agrees that its employees, agents, subcontractors and contractors shall
abide by the terms of this provision.
(b) Each party shall limit the dissemination of the
Confidential Information within its own organization to such individuals whose
duties justify the need to know the Confidential Information, and then only
provided that there is a clear understanding by such individuals of their
obligation to maintain the confidential and proprietary nature of the
Confidential Information.
(c) The following shall not be considered Confidential
Information for purposes of this Section 9: (i) information which is or becomes
in the public domain through no fault or act of the receiving party; (ii)
information which was independently developed by the receiving party without the
use of or reliance on the disclosing party's Confidential Information; (iii)
information which was provided to the receiving party by a third party under no
duty of confidentiality to the disclosing party; or (iv) information which is
required to be disclosed by law, provided, however, prompt prior written notice
thereof shall be given to the party whose Confidential Information is involved.
15
(d) ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI and ENTREPORT shall not, during the
term of this Agreement or upon the expiration or termination of this Agreement,
sell, transfer, rent or make available to any third party, any customer list
compiled as a result of identification of the RE/MAX Users or information
obtained from a RE/MAX User.
10. REPRESENTATIONS AND WARRANTIES.
10.1 BY RE/MAX. RE/MAX represents, warrants and covenants to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ that:
(a) RE/MAX is a corporation duly organized, validly
existing and in good standing under the laws of Colorado with full power and
authority to transact any and all business contemplated by this Agreement and it
possesses all requisite authority, power, licenses, registrations, permits and
franchises to conduct business as presently conducted.
(b) To the best knowledge of RE/MAX, the execution,
delivery and performance by RE/MAX of this Agreement has been duly authorized by
all necessary corporate action and does not and will not violate any provision
of, require any registration, consent or approval under any law, rule,
regulation, order, injunction, decree or any other agreement by which RE/MAX is
bound.
(c) There is no claim, action, suit, proceeding or
investigation pending or, to the best of RE/MAX's knowledge, threatened against
it or against any of its principal officers, directors or key employees, which,
either in any one instance or in the aggregate, may result in an adverse change
in business, operations, financial condition, properties or assets of RE/MAX, or
in any impairment of the right or ability of RE/MAX to carry on its business
substantially as now conducted through its existing management group, or in any
material liability on the part of RE/MAX, or which would draw into question the
validity of this Agreement.
(d) The RE/MAX Approved Supplier logo, RE/▇▇▇ ▇▇▇▇▇,
and RE/MAX Course Content licensed hereunder, do not and will not infringe on
the patent, copyright, trademark, trade name, or other proprietary rights of any
third party.
(e) RE/MAX shall, to the best of its knowledge,
comply with and perform its obligations under this Agreement in compliance with
all applicable federal, state and local laws, rules and regulations.
(f) This Agreement is a legal, valid and binding
obligation of RE/MAX and enforceable against RE/MAX in accordance with its
terms.
(g) The RE/MAX Course Content, RE/MAX Third Party
Course Content, and the RE/▇▇▇ ▇▇▇▇▇ licensed hereunder, do not and will not
infringe on the patent, copyright, trademark, trade name or other proprietary
rights of any third party.
(h) To the best knowledge of RE/MAX, the RE/MAX
Course Content and RE/MAX Third Party Course Content is accurate, true and
complete.
16
(i) To the best knowledge of RE/MAX, RE/MAX
Mainstreet shall be in full compliance with all applicable federal and state
laws, including compliance with the Federal Trade Commission's current
procedures and rules regarding privacy notices and policies.
10.2 BY ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI AND ENTREPORT. ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI
and ENTREPORT represent, warrant and covenants to RE/MAX that:
(a) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a Joint Venture of UCI and
ENTREPORT and is duly organized and validly existing with full power and
authority to transact any and all business contemplated by this Agreement and it
possesses all requisite authority, power, licenses, registrations, permits and
franchises to conduct business as presently conducted.
(b) UCI is a corporation duly organized, validly
existing and in good standing under the laws of Minnesota with full power and
corporate authority to transact any and all business contemplated by this
Agreement and it possesses all requisite corporate authority, power, licenses,
registrations, permits and franchises to conduct business as presently
conducted.
(c) That ENTREPORT is a corporation duly organized,
validly existing and in good standing under the laws of Florida with full power
and corporate authority to transact any and all business contemplated by this
Agreement and it possesses all requisite corporate authority, power, licenses,
registrations, permits and franchises to conduct business as presently
conducted.
(d) To the best of its knowledge, the execution,
delivery and performance by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ of this Agreement has been duly
authorized by all necessary action and does not and will not violate any
provision of, or require any registration, consent or approval under any law,
rule regulation, order, injunction, decree or any other agreement by which
▇▇▇▇▇▇▇▇▇▇.▇▇▇ is bound.
(e) To the best of its knowledge, the execution,
delivery and performance by UCI and ENTREPORT of this Agreement has been duly
authorized by all necessary corporate action and does not and will not violate
any provision of, or require any registration, consent or approval under any
law, rule regulation, order, injunction, decree or any other agreement by which
UCI or ENTREPORT is bound.
(f) There is no claim, action, suit proceeding or
investigation pending or, to the best knowledge of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, threatened
against any of its principal officers, directors or key employees, which, either
in any one instance or in the aggregate, may result in an adverse change in the
business, operations, financial condition, properties or assets of
▇▇▇▇▇▇▇▇▇▇.▇▇▇, or in any impairment of the right or ability of ▇▇▇▇▇▇▇▇▇▇.▇▇▇
to carry on its business substantially as now conducted through its existing
management group, or in any material liability on the part of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, or
which would draw into question the validity of this Agreement.
17
(g) There is no claim, action, suit proceeding or
investigation pending or, to the best knowledge of UCI or ENTREPORT, threatened
against any of its principal officers, directors or key employees, which, either
in any one instance or in the aggregate, may result in an adverse change in the
business, operations, financial condition, properties or assets of UCI or
ENTREPORT in any impairment of the right or ability of UCI or ENTREPORT to carry
on its business substantially as now conducted through its existing management
group, or in any material liability on the part of UCI or ENTREPORT which would
draw into question the validity of this Agreement.
(h) The ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Courses,
EntrePort Courses, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content, EntrePort Course Content,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course Content, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, and the
Registration Materials licensed here under, do not and will not infringe on the
patent, copyright, trademark, trade name or other propriety rights of any third
party.
(i) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall, to the best of its
knowledge, comply with and perform its obligations under this Agreement in
compliance with all applicable federal, state and local laws, rules and
regulations.
(j) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has obtained, or will have
obtained in connection with the transactions contemplated by this Agreement, all
necessary federal and state approvals in connection with the on-line training
and education programs and training materials made available to RE/MAX Users.
(k) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will not sell any other products
or services other than the on-line training and education programs and
e-commerce programs referenced in Sections 6.4 through 6.8 to RE/MAX Users
without the prior written consent of RE/MAX.
(l) To the best of their knowledge, all content
supplied by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI or ENTREPORT, their agents or representatives,
for the Site, is accurate, true when posted on the Site, and all marketing
materials prepared by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI or ENTREPORT, their agents or
representatives, for the on-line training and education programs are accurate,
true and complete.
(m) The Site and the information and content
contained therein shall be in full compliance with all applicable federal and
state laws, rules and regulations.
(n) The privacy notices and privacy policies for the
Site are in compliance with the Federal Trade Commission's current procedures
and rules, as applicable
(o) It will not knowingly distribute on the Site any
content that (i) infringes any copyright, patent right, trademark right,
publicity right or other right of any third party, (ii) violates any law or
regulation, including without limitation the laws and regulations governing
export control, (iii) is libelous or defamatory, (iv) is pornographic or
obscene, or (v) contains viruses, trojan horses, worms, time bombs or
cancelbots.
18
10.3 DISCLAIMER. Except as provided herein, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
makes no warranty or representation, either express or implied, that access to
or operation of the Site will be uninterrupted or error free. EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, NO PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES
RELATING TO THE SITE OR ITS USE OR FUNCTIONALITY, AND SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. INDEMNIFICATION AND LIMITATION OF LIABILITY.
11.1 BY RE/MAX. RE/MAX agrees to indemnify, defend and hold
harmless ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and its board members, officers, employees and agents
from any liability or damages incurred as a result of any claims, demands, costs
or judgments, including attorneys' fees and court or arbitration costs
("Claims"), arising out of RE/MAX's breach of any warranties, representations or
covenants hereunder, or failure to comply with applicable federal, state or
local laws or regulations or any of the provisions of such applicable laws and
regulations or of any provision of this Agreement, or resulting from any
negligent acts or omissions by RE/MAX or any of its officers, agents or
employees with respect to its obligations under this Agreement. As used herein,
the term "agents" shall not include RE/MAX Users.
11.2 BY ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI AND ENTREPORT. ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI
and ENTREPORT agree to indemnify, defend and hold harmless RE/MAX and its board
members, officers, employees and agents from any liability or damages incurred
as a result of any Claims, including but not limited to Claims by a RE/MAX
Affiliate or RE/MAX User, that arise out of this Agreement or breach by
▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI or ENTREPORT of any warranties, representations or covenants
hereunder, or failure to comply with applicable federal, state or local laws or
regulations or any of the provisions of such applicable laws and regulations or
of any provisions of this Agreement, or resulting from any negligent act or
omission by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI or ENTREPORT or its related entities, or any of
their officers, agents, or employees with respect to their obligations under
this Agreement.
11.3 INDEMNIFICATION PROCEDURE. Each party shall promptly
notify the other parties of any Claims, suit or threat of suit which that party
becomes aware (except with respect to a suit a party might institute against the
another party), that may give rise to a right of indemnification pursuant to
this Agreement. Each Party to this Agreement shall provide all assistance
required by the other parties and the indemnifying party or parties shall
reimburse the indemnified party for expenses incurred in providing such
assistance.
11.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES
WITH RESPECT TO THIS AGREEMNT, WHETHER OR NOT THE PARTY RECEIVES NOTICE OF ANY
SUCH DAMAGES AND SUCH DAMAGES COULD HAVE BEEN FORESEEN. NOTWITHSTANDING THE
FOREGOING, THE LIMITATION OF LIABILITY SET FORTH IN SECTION 11.4 SHALL NOT, IN
ANY WAY, LIMIT OR DIMINISH ANY PARTY'S OBLIGATION TO INDEMNFIY FOR CLAIMS UNDER
SECTION 11.
19
12. INSURANCE.
12.1 DUTY TO MAINTAIN. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to maintain
during the term of this Agreement, and for a period of not less than six (6)
months after the expiration or termination of this Agreement the following
insurance, and to provide on or before the Effective Date of this Agreement and
thereafter throughout the term of this Agreement, a certificate of insurance
satisfactory to RE/MAX for the following:
(a) A comprehensive commercial general liability
insurance policy ("Insurance Policy") that insure against liability for personal
injury, death or injury to persons and damages to property, advertising
liability, contractual liability and products liability that arises out of the
products and services that are the subject matter of this Agreement. The limit
of liability under the Insurance Policy shall not be less than $1,000,000
combined single limit per occurrence. The Insurance Policy shall name RE/MAX as
an additional insured, shall contain a waiver by the insurance company of all
subrogation rights against RE/MAX and other parties covered by the insurance,
and shall provide that RE/MAX receive thirty (30) days prior written notice of
termination, expiration, cancellation or modification of any such policy. The
Insurance Policy shall be primary and non-contributing with any insurance that
may be carried by RE/MAX. The insurance coverage herein shall be issued by an
insurance company approved by RE/MAX with a current A.M. Best Insurance Guide
rating of not less than A-, XIII.
(b) A worker's compensation insurance policy and an
employer's liability insurance policy as required by law covering all employees,
and insurance agents of ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall require
subcontractors to provide workers' compensation insurance. The employer's
liability insurance limits shall not be less than $100,000 each accident for
bodily injury by accident and not less that $100,000 each employee for bodily
injury by disease.
13. ARBITRATION.
Any dispute or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled through good faith negotiations
among the parties. In the event that said negotiations are not successful, any
dispute or claim arising under or with respect to this Agreement, except for
disputes involving the RE/▇▇▇ ▇▇▇▇▇, RE/MAX Course Content or the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Marks, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Courses, EntrePort Courses, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content,
EntrePort Course Content, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course Content,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, and the Registration Materials will be resolved by
arbitration in accordance with the Rules for Commercial Arbitration of the
American Arbitration Association. Arbitration proceedings will be held in a
neutral venue in Denver, Colorado. The decision or award of the arbitrator shall
be final and binding upon the parties. The arbitrator's power under the
applicable arbitration rules shall be limited to the specific powers conferred
under the arbitration laws of Colorado. Any arbitral award may be entered as a
judgment or order in any court of competent jurisdiction.
20
14. NOTICE.
Any notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand, one
business day after transmission by facsimile (with confirmation of receipt), one
business day after being placed in the hands of a commercial courier service for
overnight delivery, or three business days after placement in the United States
mail by registered or certified mail, return receipt requested, postage pre-paid
and addressed to the party or parties to be notified at the address set forth
below (or at such other address for a party as shall be specified by like notice
in writing to the other party or parties):
If to RE/MAX: RE/MAX INTERNATIONAL, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to ▇▇▇▇ ▇▇▇▇▇▇-Vice President and General
Counsel
If to ▇▇▇▇▇▇▇▇▇▇.▇▇▇: ▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to: EntrePort Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
15. INJUNCTIVE RELIEF.
It is understood and agree and that the services to be
provided by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to RE/MAX, and by RE/MAX to ▇▇▇▇▇▇▇▇▇▇.▇▇▇, and the
obligations imposed herein, are of a special, unique, extraordinary and
intellectual character, which gives them peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in any action at law
or in equity and that a breach by either party of any such provision contained
in the Agreement may cause the non-breaching party irreparable injury and
damage. The parties expressly agree that in the event of default the
non-breaching party shall be entitled to the remedies of injunction, specific
performance and other equitable relief to prevent a breach of any such provision
of this Agreement and that the non-breaching party shall not be required to post
bond as a condition of such relief. This provision shall not, however, be
construed as a waiver of any right which either party many have for damages or
otherwise against the other.
21
16. SURVIVAL.
All representations, warranties, agreements and covenants made
by any party to this Agreement and set forth in this Agreement shall survive the
expiration or termination of this Agreement. All provisions of this Agreement
with respect to indemnification shall survive the expiration or termination of
this Agreement.
17. MISCELLANEOUS.
17.1 RELATIONSHIP. Nothing in this Agreement shall be
construed as constituting a partnership, joint venture or other association of
any kind, or agent/principal relationship among the parties. Each party is
acting as an independent contractor hereunder and RE/MAX and its employees,
agents, and subcontractors are not to be considered employees or agents of
▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI or ENTREPORT for any purpose whatsoever. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
its employees, agents and subcontractors are not to be considered employees or
agents of RE/MAX for any reason whatsoever. Except as provided in this
Agreement, all parties to this Agreement shall not have the right, power, or
authority to bind the other, or shall be deemed to be an agent or partner of the
other parties hereto.
17.2 ASSIGNMENT. No party shall have the right to assign or
otherwise transfer its rights and obligations under this Agreement without the
prior written consent of the other parties. Notwithstanding the foregoing,
RE/▇▇▇ ▇▇▇ freely assign this Agreement to any corporate affiliate under common
ownership and control with RE/MAX, at any time, without the written consent of
▇▇▇▇▇▇▇▇▇▇.▇▇▇, UCI or ENTREPORT. Further notwithstanding the above,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ may freely assign this Agreement to the surviving entity in the
merger between UCI and ENTREPORT or to any corporate affiliate under common
ownership and control with ▇▇▇▇▇▇▇▇▇▇.▇▇▇, at any time without the written
consent of RE/MAX. This Agreement shall be binding upon, and inure to the
benefit of, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and RE/MAX and their successors and permitted
assigns. Any prohibited assignment or transfer shall be null and void.
17.3 ENTIRE AGREEMENT. This Agreement, including all Exhibits
hereto which are incorporated herein, constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all proposals,
oral or written, and all negotiations, conversations, and discussions.
17.4 AMENDMENT. This Agreement may not be modified, amended,
rescinded, canceled or waived, in whole or in part, except by written amendment
signed by all the parties hereto.
17.5 GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of Colorado, without regard to its
conflicts of laws rules.
22
17.6 SEVERABILITY. If any provision of this Agreement is found
unenforceable under any laws or regulations applicable thereto, such provision
terms shall be deemed stricken from this Agreement, but such invalidity or
unenforceability shall not invalidate any of the other provisions of this
Agreement.
17.7 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
when affixed together shall constitute but one and the same instruments.
Signatures exchanged by facsimile shall be deemed to be original signatures for
all purposes.
17.8 WAIVER. None of the parties to this Agreement shall waive
any of their rights or any obligations of the other party or any provision of
this Agreement except by and instrument in writing signed by that party. Any
single waiver of any right or obligation shall not be deemed to be a permanent
or continuing waiver of the same right or obligation.
17.9 REMEDIES. All remedies provided in this Agreement are
distinct and cumulative to any other right or remedy under this Agreement or
afforded by law or equity and may be exercised concurrently, independently or
successively.
17.10 INDEPENDENT CONTRACTORS. The parties to this Agreement
are independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by this Agreement. None of
the parties shall have the power to obligate or bind another party. Personnel
supplied by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall work exclusively for or be under contract to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ and shall not, for any purpose, be considered employees or agents
of RE/MAX. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ assumes full responsibility for the acts of such
personnel while performing services hereunder and shall be solely responsible
for their supervision, direction and control, compensation, benefits and taxes.
17.11 HEADINGS. The section numbers or letters, headings, and
subparagraph numbers or letters used in this Agreement are for reference and
convenience purposes only and shall not in any way affect the meaning or
interpretation of any provision of this Agreement.
17.12 FORCE MAJEURE. Notwithstanding anything to the contrary
in this Agreement, no party shall be liable for the failure to fulfill
obligations hereunder if such failure is caused by or arises out of an act of
force majeure including acts of God, war, riot, natural disaster, technical
failure or any other reason beyond the reasonable control of the party whose
performance is prevented during the period of such occurrence.
23
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the Effective Date.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, a Joint Venture
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President, ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President, EntrePort Corporation
RE/MAX INTERNATIONAL, INC.
By /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President - Web Services and IT Marketing
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
EntrePort Corporation
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President