EXHIBIT 10.15
SITE DEVELOPMENT AND HOSTING
AGREEMENT
This AGREEMENT, dated as of February 7, 2000 (the "Effective Date"), is
by and between ▇▇▇▇▇▇▇▇▇▇.▇▇▇, 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively referred to as
"▇▇▇▇▇▇▇▇▇▇.▇▇▇"), and THE PRUDENTIAL REAL ESTATE AFFILIATES, INC. a Delaware
corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PREA").
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;
WHEREAS, PREA is engaged in the franchising of independently owned and
operated real estate brokerage companies specializing in the marketing of real
estate and related services.
WHEREAS, PREA desires to engage ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to develop and implement
a customized, on-line education and training program for use by the owners,
brokers, agents and employees of the PREA franchised companies ("PREA Users");
and
WHEREAS, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ desires to perform such services for PREA
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
1.1 "CONFIDENTIAL INFORMATION" shall mean all proprietary
information of a party, including, without limitation, specifications, diagrams,
information, data, materials, prototypes or models relating to a party's
products, programs, markets, customers, suppliers, inventions, procedures,
designs, research and development, business plans, financial projections,
organizations, employees or consultants or any other similar aspects of the
present or future business of either party.
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 PREA Course Content, which shall be offered to PREA Users on the Site.
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1.3 "COURSE CONTENT" shall refer collectively to the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Course Content, EntrePort Course Content, PREA Course Content,
PREA 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 pursuant to
this Agreement, and licensed to PREA hereunder.
1.5 "ENTREPORT COURSES" shall mean the general real estate and
professional training courses listed on Exhibit B.
1.6 "PREA COURSE CONTENT" shall mean all educational materials
and learning components created by PREA for the Courses and provided to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ by PREA for inclusion in the Courses.
1.7 "PREA COURSE CONTENT ADDENDUM" shall mean the addendum, in
a form substantially similar to Exhibit G, that PREA shall provide to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ from time to time to amend the PREA Course Content Schedule and
to authorize and provide additional PREA Course Content to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for
development of Courses incorporating the PREA Course Content.
1.8 "PREA COURSE CONTENT SCHEDULE" shall mean the schedule
attached hereto as Exhibit F, which will be revised as necessary, pursuant to
which the PREA Course Content shall be delivered to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ by PREA, and
the fee to be paid by PREA to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for development of Courses
incorporating the PREA Course Content shall be paid.
1.9 "PREA INTRANET" shall mean PREA's secure (accessible by
users with valid user ids and passwords), internal, intranet website.
1.10 "PREA MATERIALS" shall refer collectively to the PREA
Course Content and the PREA Site Content.
1.11 "PREA SITE CONTENT" shall mean PREA designs, trademarks,
logos, text, images, graphics, audio clips and other material provided to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ by PREA for inclusion on the Site in an electronic format
acceptable to ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
1.12 "PREA THIRD PARTY COURSE CONTENT" shall mean all
educational, technical and other content for the Courses licensed by PREA 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 ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
1.13 "PREA USER" shall mean an individual, as defined above,
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 on the PREA Intranet for use by all PREA Users.
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1.15 "VIRTUAL UNIVERSITY" shall mean ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
proprietary software for delivering on-line, real estate-specific business
training courses and related course management services.
1.16 "SITE" shall mean the private-label, on-line training and
education website developed and hosted by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, and accessible via the
PREA Intranet.
1.17 "SITE CONTENT" shall mean all text, images, graphics and
other materials on the Site.
1.18 "SPECIFICATIONS" shall mean the functional and design
specifications for the Site set forth in Exhibit C hereto.
1.19 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ COURSES" shall mean the general real
estate and professional training courses listed on Exhibit A.
1.20 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ 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 PREA hereunder.
1.21 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ 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 PREA Materials.
1.22 "▇▇▇▇▇▇▇▇▇▇.▇▇▇ THIRD PARTY COURSE CONTENT" shall mean
all educational, technical and other content for the Courses licensed by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ from a third party, excluding the PREA Content, that are included
in a Course.
1.23 "USER AGREEMENT" shall mean the license agreement
attached hereto as Exhibit D (to be provided), and as may be revised from time
to time by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ with PREA's prior written approval), pursuant to which
PREA Users will access the Site and use the Course Content.
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
the Site, 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 PREA Users via the Site
pursuant to the User Agreement. Development of Courses incorporating the PREA
Course Material will be authorized by and pursuant to their respective PREA
Course Content Addendum.
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2.3 ACCEPTANCE. All Site Design, Customization and Course
Development ("Services") shall at all times be subject to PREA's reasonable
satisfaction and approval as provided herein. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide PREA
with reasonably detailed specifications for the Services. PREA shall approve the
final Specifications before ▇▇▇▇▇▇▇▇▇▇.▇▇▇ commences the Services. Thereafter,
any changes made by PREA to the Specifications shall result in additional
charges to be paid by PREA at the rate of $150 per hour to implement the changes
to the Specifications. PREA shall not be required to pay for any Services that
fail to comply with the Specifications. Upon approval of the final
Specifications, the parties will develop a mutually agreeable production
schedule for the performance of the Services.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall make available a complete version of the PREA Materials
created while performing the Services on a password protected server (the
"Designated Server") for PREA's review and acceptance. On or before April 15,
2001, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will provide PREA with access to the completed Site with
beta testing two weeks before that date. PREA shall have 14 calendar days to
review and evaluate the Services (the "Acceptance Period") to assess whether it
meets the Specifications and meets industry standards for professional,
technical and artistic quality. Acceptance shall not be unreasonably withheld.
Any rejection shall state specifically the manner in which the deliverable is
defective. Thereafter, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have a period of 14 calendar days
within which to cure, or in the event that the defect is such that it cannot
reasonably be cured within 14 calendar days, to commence a cure, of any
defective condition in the Services (the "Cure Period"). If ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is
unable to cure the defective condition in the Services during the Cure Period,
PREA may, in its sole discretion, elect to: (a) extend the time for
▇▇▇▇▇▇▇▇▇▇.▇▇▇ to provide revised Services for acceptance testing in accordance
with this section; (b) revise the Specifications and negotiate an appropriate
adjustment in the fees in Sections 6.1 and 6.3; ( c ) complete the Services and
deduct the costs of completion from the fees in Sections 6.1 and 6.3; or (d)
terminate this Agreement without any further liability to ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
2.4 SITE HOSTING. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall host the Site on the
server located at its data center in Minneapolis, Minnesota. Commencing on the
Production Date, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to make
the Site continuously available to PREA Users, with the exception of: (a)
scheduled maintenance and required repairs, and (b) any loss or interruption of
hosting services due to causes beyond ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s control, including,
without limitation, interruption or failure related to the PREA Intranet, or
telecommunication or digital transmission links, and Internet failures or shut
downs and third party DNS hosting failures. At ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s expense,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall maintain daily backups of the Site at a remote and secure
location. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will also maintain a copy of the system source code for
the Site in an escrow account in a secure location. The system code will be held
at ▇▇▇▇▇ Fargo Bank in Minneapolis, MN in a secured safe deposit box. This
location is subject to change and PREA will be provided with written notice of
any such location change within 30 days of such change. Access to the safe
deposit box shall be limited pursuant to a mutually acceptable access agreement
that provides access rights to PREA only upon the happening of certain events.
2.5 SITE STANDARDS. SITE STANDARDS. ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s hosting
standards shall conform to the following:
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(a) AVAILABILITY OF THE SITE. The Site shall be publicly
available to PREA Users a minimum of 99% of the time during
any 12-month period and there will be no period of
interruption in public accessibility to the Site that exceeds
36 continuous hours, subject to the terms of Section 2.4. In
the event that any interruption is expected to exceed 36
continuous hours, and the interruption is within the control
of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide, at its
expense, replacement server(s) to host the Site and
re-establish availability for PREA Users.
(b) SITE SECURITY. Subject to the security controls of the
PREA Intranet as employed for initial Site access and
registration, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall only allow authorized PREA
employees and PREA Users to have access to the Site and only
for purposes authorized by this Agreement. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall comply with all PREA security guidelines related to the
Site; as such guidelines may be updated by PREA from time to
time. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall prevent unauthorized direct access
to the Designated Server, login and access to other restricted
areas of the Site and any databases or other sensitive
material generated from or used in conjunction with the Site;
and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall immediately notify PREA of any known
security breaches or holes.
2.6 SITE MAINTENANCE AND TECHNICAL SUPPORT. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
will use commercially reasonable efforts to provide PREA with reasonable
assistance to maintain and update the Site during the term of this Agreement,
and shall provide standard technical assistance to PREA and PREA Users in the
operation and use of the Site and the Courses, all in accordance with Exhibit E
hereto. Any additional maintenance services will be provided for a fee, which
shall be negotiated between the parties.
2.7 RIGHT OF REMOVAL AND USER TERMINATION. PREA acknowledges
and agrees that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have the right to remove from, or refuse to
include on, the Site, any PREA Materials which ▇▇▇▇▇▇▇▇▇▇.▇▇▇ reasonably
believes are unlawful, distasteful or violate the rights of a third party
(including, without limitation intellectual property rights) and ▇▇▇▇▇▇▇▇▇▇.▇▇▇
provides PREA with a detailed written explanation of the reasons for its
decision, including all facts which supports its finding that the materials are
unlawful, distasteful or violates the rights of a third party. Such detailed
explanation shall be provided to PREA at the time that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ advises
PREA of its decision to remove PREA Materials or its refusal to post PREA
Materials. PREA further acknowledges and agrees that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have
the right, after providing written notice of the alleged violation and a thirty
(30) day opportunity to cure, to suspend or terminate the password and account
of any PREA User that is in violation of the terms of the User Agreement and has
failed to cure such violation.
2.8 PROMOTION BY ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will promote
the Site as more particularly set forth in Exhibit H hereto.
3. PREA OBLIGATIONS.
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3.1 DELIVERY OF PREA SITE CONTENT. Within 30 days from the
Effective Date, PREA shall deliver to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ the PREA Site Content to be
included on the Site.
3.2 DELIVERY OF PREA COURSE CONTENT AND PREA THIRD PARTY
COURSE CONTENT. PREA Course Content and PREA Third Party Course Content will be
delivered in accordance with the PREA Course Content Schedule, as such is
amended from time to time by the PREA Course Content Addenda.
3.3 CONTENT CONTROL. PREA acknowledges and agrees that it will
be solely responsible for creating, reviewing, and authorizing modifications to,
the PREA Materials. PREA acknowledges that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is acting as a passive
conduit for the distribution and publishing of the PREA Materials.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ has no obligation to PREA, and undertakes no responsibility, to
review the PREA Content to determine whether any such content may incur
liability to third parties. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledges and agrees that it is
responsible for ensuring that the PREA content is posted in the form approved by
PREA and that no unauthorized changes are made to that content.
3.4 PROMOTION BY PREA. PREA will promote the Site as more
particularly set forth in Exhibit H hereto.
3.5 EXCLUSIVITY. PREA agrees that during the Initial Term (as
defined below) of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be PREA's exclusive
source for online training and education for the PREA Users in the United
States. However, PREA may employ third party vendors to design training
materials for on-line delivery, which may be offered through the Site; provided
however, that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have the right to bid for the production and
design of all training materials for on-line delivery which may be offered
through the Site. Any third party vendor materials offered through the Site must
comply with the Specifications, the requirements of Section 1.12 above, shall
not be duplicative of content already produced or provided by ▇▇▇▇▇▇▇▇▇▇.▇▇▇,
and all agreements with such third parties shall be added as exhibits to this
Agreement. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledges that PREA
entered into several third party agreements for online training and education
prior to the Effective Date. Those previous third party agreements shall not be
found to violate this provision and shall be allowed to continue in effect until
they expire or are terminated in accordance with their terms.
4. PASSWORD ADMINISTRATION
4.1 EXISTING USERS OF PREA INTRANET. PREA will provide
▇▇▇▇▇▇▇▇▇▇.▇▇▇ with all reasonable information requested by it to facilitate the
issuance by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ of passwords for access to the Site to those
individuals who are authorized by PREA to use the PREA Intranet as of the
Effective Date.
4.2 NEW USERS OF PREA INTRANET. With regard to those
individuals not authorized by PREA to access the PREA Intranet as of the
Effective Date, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide to PREA the source code necessary
for placement by PREA of a form on the PREA Intranet (the "Registration Form")
for the registration of, and issuance of passwords by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to, such
individuals. PREA may modify the source code for the Registration Form solely
for the purpose of entering user names in the appropriate field. PREA shall
immediately submit to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ completed Registration Forms, and
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall issue to such individuals a password for access to the
Site.
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4.3 USER LOG-IN. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide to PREA the
source code necessary for placement of a log-in form ("Log-in Form") on the PREA
Intranet by PREA in a manner sufficient to facilitate the verification of PREA
User information by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ via its database each time a PREA User logs
in to the Site. The Log-in Form will be used for access to the Site by all PREA
Users. All source code and related materials provided to PREA by ▇▇▇▇▇▇▇▇▇▇.▇▇▇
relating to the Registration Form or the Log-in Form shall hereinafter be
referred to as the "Registration Materials," and shall be subject to the terms
of Section 5.1.
4.4 REGISTRATION FOR PREA LIVE COURSES. PREA offers a variety
of live real estate related courses to the PREA Users (the "Live Courses").
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall develop an area on the Site for the PREA Users to register
for the Live Courses ("Registration Area"). ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will provide PREA
with access to the Registration Area to post and update course titles, times and
locations for the Live Courses. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will collect payment from the
PREA Users for the Live Courses remitting it to PREA in accordance with the
payment terms in Section 6.9 minus fifteen percent (15%) of the total amount
paid by the PREA User which will be ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s fee for this service.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ will provide PREA with monthly reports updating PREA on
registration for each Live Course. The reports will include a breakdown of
monies collected from the PREA Users, contact information for each registrant
and a running total of the number of registrants for each Live Course.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall also be permitted to list its live seminars in the
Registration Area, provided that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ clearly differentiates its
seminars from the Live Courses and the advertisements for ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
seminars appear to be the same size or smaller then the advertisements for the
Live Courses.
5. LICENSE GRANTS.
5.1 ▇▇▇▇▇▇▇▇▇▇.▇▇▇ MATERIALS, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ THIRD PARTY
COURSE CONTENT AND REGISTRATION MATERIALS. Subject to the terms of this
Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby grants to PREA a non-exclusive,
non-transferable, limited license, without right of sublicense, to access,
display and use the Site, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third
Party Course Content and the Registration Materials. PREA shall not, and shall
not knowingly allow any third party (including, without limitation any PREA
User) to, download or otherwise reproduce or distribute the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Materials, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course Content or the Registration
Materials, or modify, reverse engineer, decompile or disassemble any
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Third Party Course Content or the
Registration Materials except as expressly permitted by this Agreement or the
User Agreement. PREA shall not allow any third party, with the exception of PREA
Users, to access the Site or any ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials contained therein.
PREA 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 PREA SITE CONTENT. Subject to the terms of this Agreement,
PREA hereby grants to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for the term of this Agreement, a
revocable, nonexclusive, royalty-free worldwide license to use, reproduce,
distribute, publicly perform, publicly display and modify the PREA Site Content
in connection with the development, hosting and maintenance of the Site and
services performed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereunder for PREA's benefit only in
connection with ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s provision of services under this Agreement.
PREA grants no rights other than explicitly granted herein, and ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall not exceed the scope of its license.
5.3 PREA COURSE CONTENT. Subject to the terms of this
Agreement, PREA hereby grants to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for the term of this Agreement,
a revocable, non-exclusive royalty-free worldwide license to use, reproduce,
distribute, publicly perform, publicly display and modify the PREA Course
Content in connection with ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s performance of its obligations
hereunder. PREA grants no rights other than explicitly granted herein, and
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not exceed the scope of its license. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
acknowledges and agrees that use of the PREA Third Party Course Content is
subject to PREA's agreements with its licensors, and that such licensors may
have the right to modify or terminate PREA's right to use and sublicense the
PREA Third Party Course Content at any time.
5.4 TRADEMARK LICENSES.
(a) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby grants to PREA, subject to the terms
of this Agreement, a non-exclusive, non-transferable,
royalty-free right, without right of sublicense, to use the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ trademark solely to promote the use of the Site
by PREA Users as set forth herein.
(b) PREA hereby grants to ▇▇▇▇▇▇▇▇▇▇.▇▇▇, subject to the terms
of this Agreement, a non-exclusive, non-transferable (unless
otherwise set forth herein), royalty-free right, without right
of sublicense, to use the Rock Prudential logo , and The
Prudential Real Estate Affiliates, Inc. and Prudential Real
Estate trademarks (hereinafter "PREA trademarks") solely in
connection with the performance of its obligations hereunder.
PREA will provide the PREA Trademarks to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in
electronic format. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall use PREA's trademarks
exactly in the form and color provided by PREA. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
acknowledges that any use of the PREA trademarks pursuant to
this Agreement shall inure to the benefit of PREA and its
affiliates, and further acknowledges PREA and its affiliates'
rights in the PREA trademarks and the goodwill pertaining
thereto, and agrees that it shall not challenge the validity
of PREA and its affiliates' ownership thereof. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall not have any right, title, license, or interest, express
or implied, in and to the PREA trademarks, except as
specifically provided herein.
6. FEES AND PAYMENT.
All fees payable hereunder will be paid in U.S. Dollars.
8
6.1 MAINTENANCE AND SUPPORT FEE. PREA shall pay to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ Four Thousand Five Hundred Dollars ($4,500) 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. 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 the parties. For any Renewal Term of this
Agreement, as defined below, such quarterly fees shall be subject to annual
review and adjustment. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees that it will not increase such fees
annually more than ten percent (10%) above the fees charged PREA during the
previous year.
6.2 COURSE DEVELOPMENT FEES. PREA shall pay ▇▇▇▇▇▇▇▇▇▇.▇▇▇ a
fee for each developed hour of Course Content created by ▇▇▇▇▇▇▇▇▇▇.▇▇▇
hereunder, using the PREA Course Content provided to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ pursuant to
the PREA Course Content Schedule in Exhibit F, as amended from time to time by
various PREA Course Content Addenda, Exhibit G. Development of the Course
Content shall be subject to the acceptance provisions contained in Section 2.3.
PREA shall pay ▇▇▇▇▇▇▇▇▇▇.▇▇▇ a flat rate of $30,000 for the first ten hours of
developed Course Content. Any additional development shall be billed at a rate
of $150 per hour of developed Course 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 PREA Course Content Schedule and the PREA Course Content
Addendum, shall be due and payable as follows: 50% of the Course development fee
on the execution of the PREA Course Content Addendum, and 50% of the Course
development fee upon delivery by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ of the relevant Course to PREA.
6.3 SYSTEM MODIFICATION FEES. From time to time, PREA may
request that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ modify the system to meet specific requirements as
identified by PREA. In such instance, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide a proposal to
PREA describing the system modifications and proposed fees. The parties will
mutually agree upon the terms of such system modifications and this Agreement
shall be amended by the parties in writing to cover such system modifications. .
6.4 UNLIMITED ACCESS FEE. Through the Site, PREA Users will
have unlimited access to the EntrePort Courses and the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Courses
listed on Exhibits A and B. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will charge the PREA Users the
discounted rate of $19.95 per month for access to the Courses as set forth on
Exhibits A and B. The Unlimited Access Fee will not be increased without PREA's
prior written consent. However, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may alter an individual members
fee due to a special promotion or the terms and conditions of the User
Agreement. Courses subject to third party licensing or royalty fees may be
deleted from the Unlimited Access Fee program and made available on a pay per
view basis at ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s sole discretion.
6.5 PAY-PER-VIEW FEE. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may, for certain Courses,
charge each PREA User, pursuant to the terms of the User Agreement, a fee each
time a Course is viewed ("Pay-Per-View Fee").
6.6 CONTINUING EDUCATION FEES. Continuing education content
may be offered on the Site in order to permit PREA Users to obtain credit
pursuant to state licensing requirements. All continuing education content
offered on the Site will be provided on a pay-per-credit basis. The rates to be
charged for continuing education content will be equal to or less than
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s generally published industry rates for such content.
9
6.7 FREE ACCESS. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to give free unlimited
access to the Courses listed on Exhibit A and B to the top fifty (50) PREA Users
as chosen by PREA in its sole discretion. Each PREA User selected for the free
unlimited access program shall agree to provide at least one ten-minute
follow-up interview, during which the PREA User will provide information and
answers to questions posed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇. The information and quotations
obtained in the interview may be used by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ as an endorsement or
testimonial as to the benefits of the Site.
6.8 REVENUE SHARING COMPENSATION. Commencing with the first
calendar quarter following the Production Date, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall pay to PREA
a percentage of all membership revenue generated from the Site, including the
ISUCCEED membership fee, the Pay-Per-View Fee Unlimited Annual Access Fee
revenues and the Continuing Education Fee, net of any content licensing fees,
collected by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for any courses listed on Exhibit A or B on the
following scale:
0-5,000 PREA Users - 10% of membership revenue generated
5,001-10,000 PREA Users - 15% of membership revenue generated
10,0001+ PREA Users - 20% of membership revenue generated
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall also pay PREA 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, technology products, and products offered through
strategic partners,.
Such payments to PREA shall be due and payable no later than
thirty (30) days after the end of each calendar quarter. Payments due pursuant
to this Section 6.9 shall be accompanied by a report setting forth the number of
current members, Pay-Per-View Fee revenues, ISUCCEED membership revenues,
Unlimited Annual Access Fee revenues and e-commerce revenues received by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ in the preceding quarter.
6.9 AUDIT RIGHTS. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to maintain, until one
(1) year after the termination of this Agreement, complete books, records and
accounts regarding all monies due PREA in connection with this Agreement.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to allow PREA's independent auditor, upon reasonable
notice, to audit and examine such books, records and accounts during
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s normal business hours. Such auditor shall report to PREA and
▇▇▇▇▇▇▇▇▇▇.▇▇▇ the amount of any over or under billing. In the event such
auditor reasonably determines that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has underpaid PREA under this
Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to promptly pay PREA the amount of such
shortfall. In the event such auditor reasonably determines that ▇▇▇▇▇▇▇▇▇▇.▇▇▇
has under billed PREA, PREA agrees to promptly pay to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ the amount
of such under billing. In addition, if any such examination reveals an under
payment by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to PREA of five percent (5%) or more, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall reimburse PREA its costs of such examination.
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6.10 TAXES. PREA 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; excluding, however, 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 and
prerogative of PREA, in its sole discretion.
All such taxes shall be specifically stated and billed to PREA
by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall itemize the components on the
invoices. 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 all of PREA's purchases under this Agreement. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall
indemnify and hold PREA 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. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ will further lend its full
cooperation to PREA in the administration of any exemptions from sales tax to
which PREA may be entitled including, but not limited to, Urban Enterprise Zone
exemptions, or resale exemptions.
7. PROPRIETARY RIGHTS.
7.1 ▇▇▇▇▇▇▇▇▇▇.▇▇▇ RIGHTS. Subject to the limited license
granted to PREA hereunder, PREA acknowledges and agrees that ▇▇▇▇▇▇▇▇▇▇.▇▇▇
represents that it 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 ;
(b) the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials;
(c) the Site Content, exclusive of the PREA Site Content;
(d) the Courses, exclusive of the PREA Course Content;
and
(e) the Registration Material.
7.2 PREA RIGHTS. Subject to the limited license granted to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereunder, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledges and agrees that PREA is
the exclusive owner of all proprietary rights, including but not limited to
copyrights, trademarks, patents and trade secrets, in and to the PREA Materials.
7.3 ▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledges and agrees that all PREA
Materials developed or prepared for PREA by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ from PREA source
materials ("Work Product") are Confidential Information and the property of
PREA. All right, title and interest in the Work Product shall vest in PREA and
shall be deemed to be a work made for hire, made in the course of performing the
Services hereunder. To the extent that title to any such Work Product may not
vest in PREA by operation of law, or such Work Product may not be considered
11
works made for hire, all right, title and interest therein are hereby
irrevocably assigned to PREA. All such Work Product shall belong exclusively to
PREA, with PREA having the right to obtain and to hold in its own name,
copyright registrations, patents and such other intellectual property protection
as may be appropriate to the subject matter, and any extensions or renewals
thereof. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to give PREA, and any person designated by PREA,
reasonable assistance, at PREA's expense, required to perfect the rights defined
in this Section, including, but not limited to executing and delivering all
documents requested by PREA in connection therewith. All Work Product shall bear
PREA's copyright and trade secret notices, as specified by PREA. No rights to
the Work Product shall remain with ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Upon termination of this
Agreement in accordance with section 8.2 below, PREA shall be able to provide
the Work Product to the PREA Users on a web site of PREA's design. However,
PREA's rights to utilize the Work Product with a third party web site developer
or to provide the Work Product to third parties will be subject to
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s prior written approval, which will not be unreasonably
withheld, but may be subject to a fee to be negotiated by the parties based on
the hours of Course Development performed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Notwithstanding the
foregoing, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ reserves all rights in and to the ▇▇▇▇▇▇▇▇▇▇.▇▇▇
rights set forth in Section 7.1.
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 Production Date. Thereafter, this Agreement
shall automatically renew for successive one year terms unless either party
shall, at least ninety (90) days prior to the expiration of any term, give
written notice of the other of its intention to terminate the Agreement
("Renewal Term(s)").
8.2 TERMINATION. This Agreement may be terminated prior to the
expiration hereof as follows:
(a) Either party may terminate this Agreement at any time by
giving notice in writing to the other party if the other party
files a petition of any type as to its bankruptcy, is declared
bankrupt, becomes insolvent, makes an assignment for the
benefit of creditors, goes into liquidation or receivership,
or otherwise loses legal control of its business;
(b) Either party may terminate this Agreement at any time by
giving notice in writing to the other party if the other party
is in material breach of this Agreement, and has failed to
cure such breach within thirty (30) days of the receipt of
written notice of breach from the non-breaching party;
8.3 RIGHTS AND OBLIGATIONS ON TERMINATION. If this Agreement
is terminated for any reason, the parties shall have the following rights and
obligations:
(a) Termination of this Agreement shall not release either
party from the obligation to make payment of all amounts then
or thereafter due and payable;
(b) All licenses granted pursuant to Article 5, and the
respective licensee's rights and obligations thereunder, shall
automatically terminate; and
12
(c) The parties' respective rights and obligation under
Articles 7, and 9 through 12, and Sections 8.3, and 8.4 shall
survive termination of this Agreement.
8.4 NO COMPENSATION. The parties agree that, without prejudice
to any other remedies at law or in equity that either party may have in respect
of any breach of this Agreement, neither party shall be entitled to or claim
that it is entitled to any compensation or like payment as a result of or
arising out of any termination in accordance with this Article 8, whether
claimed as loss of good will, lost profits, lost investments, or otherwise.
9. CONFIDENTIAL INFORMATION AND USE OF DATA
9.1 OBLIGATION. All Confidential Information shall be deemed
confidential and proprietary to the party disclosing such information hereunder.
Each party may use the Confidential Information of the other party during the
term of this Agreement only as permitted or required for the receiving party's
performance hereunder. The receiving party shall not disclose or provide any
Confidential Information to any third party and shall take reasonable measures
to prevent any unauthorized disclosure by its employees, agents, contractors or
consultants during the term hereof including appropriate individual
nondisclosure agreements. The foregoing duty shall survive any termination or
expiration of this Agreement.
9.2 EXCLUSIONS. The following shall not be considered
Confidential Information for purposes of this Article 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 so that such party may act to protect said Confidential
Information..
9.3 TERMS OF AGREEMENT. The parties acknowledge and agree that
the terms of this Agreement are deemed confidential pursuant to this Article 9,
and therefore may not be disclosed without the prior written consent of the
other party, which consent shall not be unreasonably withheld or delayed;
provided however, that any of the parties hereto may disclose such information
in accordance with Section 9.2.
9.4 DURATION; SURVIVING OBLIGATION. Each party's obligations
of non-use and non-disclosure of the other party's confidential information
shall apply during the term of this Agreement, and shall also survive for a
period of five (5) years after its termination for any reason.
9.5 USE OF DATA. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not, during the term of
this Agreement sell or rent to any third party, any customer list compiled as a
result of identification of the PREA Users, and shall not solicit PREA Users for
the sale of any products or services not expressly provided for under this
Agreement without the prior written consent of PREA.
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10. WARRANTIES
10.1 MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ and PREA each represent, warrant and covenant to the other that:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the state of its
incorporation and has the corporate power to own its assets
and properties and to carry on its business as now being and
heretofore conducted;
(b) the execution, delivery and performance of this Agreement
have been duly authorized, do not violate its certificate of
incorporation, by-laws or similar governing instruments or
applicable law and do not, and with the passage of time will
not, materially conflict with or constitute a breach under any
other agreement, judgment or instrument to which it is a party
or by which it is bound;
(c) this Agreement is the legal, valid and binding obligation
of such party, enforceable in accordance with its terms; and
(d) 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.
10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PREA. PREA
represents, warrants and covenants that:
(a) no authorization, consent or approval of, waiver or
exemption by, or filing or registration with any public body,
court, third party or authority is necessary on the part of
PREA for the consummation by PREA of the transactions
contemplated by this Agreement;
(b) All claims or representations made by or for PREA about
PREA or any products or services included in the Site will be
true and correct (and shall remain true and correct) and in
compliance with all applicable laws and regulations throughout
the term of this Agreement;
(c) the PREA Materials do not infringe or violate any
copyright, patent, trademark, trade secret or other rights of
any third party; and
10.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ represents, warrants and covenants that:
(a) the Site will conform in all material respects to the
Specifications and that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall fix any material
errors in the Site that cause a nonconformance with the
Specifications;
14
(b) no authorization, consent or approval of, waiver or
exemption by, or filing or registration with any public body,
court, third party or authority is necessary on the part of
▇▇▇▇▇▇▇▇▇▇.▇▇▇ for the consummation by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ of the
transactions contemplated by this Agreement;
(c) the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials do not infringe or violate
any copyright, patent, trademark, trade secret or other rights
of any third party; and
(d) it will not mix or co-mingle any of the PREA Materials on
the Site or captured as a result of this Agreement with any
similar data, content or information from or of any of its
other customers, users or third parties; and
10.4 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, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED
WARRANTIES RELATING TO THE SITE OR ITS USE OR FUNCTIONALITY OR THE MATERIALS
PROVIDED HEREUNDER, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. INDEMNIFICATION AND LIMITATION OF LIABILITY
11.1 INDEMNIFICATION BY PREA. PREA shall defend, indemnify and
hold harmless ▇▇▇▇▇▇▇▇▇▇.▇▇▇, its officers, agents, directors, and employees
against any and all claims, actions, proceedings, expenses, damages and
liabilities (including, without limitation, reasonable attorneys' fees), arising
out of or in connection with (a) any breach of this Agreement by PREA, including
the representations, warranties and covenants herein, (b) the PREA Materials or
the PREA Intranet, and any use thereof, including without limitation, any
infringement or violation of any trademark, copyright, trade secret, patent or
other proprietary right with respect thereto, and (c) any use of PREA's
intellectual property rights permitted herein.
11.2 INDEMNIFICATION BY ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall
defend, indemnify and hold harmless PREA, its officers, agents, directors, and
employees against any and all claims, actions, proceedings, expenses, damages
and liabilities (including, without limitation, reasonable attorneys' fees),
arising out of or in connection with (a) any breach of this Agreement by
▇▇▇▇▇▇▇▇▇▇.▇▇▇, including the representations, warranties and covenants herein,
(b) the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, and any use thereof, including, without
limitation, any infringement or violation of any trademark, copyright, trade
secret, patent or other proprietary right with respect thereto, and (c) any use
of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s intellectual property rights permitted herein.
11.3 PROCEDURE FOR INDEMNIFICATION. Whenever an indemnified
party hereunder becomes aware of a claim, suit or proceeding as to which it
believes it is entitled to indemnification under this Article 11, it shall give
notice in writing to the indemnifying party, shall permit the indemnifying party
to assume exclusive control of the defense or settlement of the matter, and
shall provide, at the indemnifying party's expense, all authority, information
and assistance which such party may reasonably request for purposes of such
defense. The indemnified party may engage its own counsel, at its own expense,
to monitor the defense of any such matter.
15
11.4 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING
UNDER SECTIONS 11.1 (b) AND (c), AND SECTION11.2 (b) AND (c), IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA, INTERRUPTED
COMMUNICATIONS, LOST BUSINESS OPPORTUNITY, FAILURE OF TRANSMISSION SERVICE,
PERSONAL INJURY OR THE LIKE) RESULTING FROM ANY BREACH OF WARRANTY,
REPRESENTATION OR COVENANT OR ANY OTHER TYPE OF CLAIM ARISING FROM OR OUT OF
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LIABILITY ARISING OUT OF CONTRACT,
NEGLIGENCE, AND STRICT LIABILITY IN TORT OR WARRANTY, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. MISCELLANEOUS
12.1 COMMUNICATIONS. Neither party shall (1) use or refer to
in any press release, advertising, publicity, promotion, web site, marketing or
other media or activities, any name, trade name, trademark or servicemark, logo,
or other designation of the other party without such party's prior written
approval; or (2) disclose that the parties have entered into this Agreement,
without the other party's prior written approval, which shall not be
unreasonably withheld.
12.2 DISPUTE RESOLUTION. Except for a breach of the
confidentiality obligations contained in Article 9, any dispute, claim or
controversy arising out of or in connection with this Agreement shall be settled
by final and binding arbitration in Orange County, California under the then
applicable Commercial Arbitration Rules of the American Arbitration Association
(AAA). Any such arbitration shall be conducted by one (1) arbitrator appointed
by mutual agreement of the parties or, failing such agreement, in accordance
with said Rules.
12.3 RELATIONSHIP. This Agreement does not make either party
the employee, agent or legal representative of the other for any purpose
whatsoever. Neither party is granted any right or authority to assume or to
create any obligation or responsibility, express or implied, on behalf of or in
the name of the other party. Each party is acting as an independent contractor.
12.4 ASSIGNMENT. Neither 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 party; provided, however, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
may assign this Agreement, or any rights or obligations hereunder, to the entity
formed by the merger of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. and Entreport Corporation upon
notice to PREA. Notwithstanding the foregoing, PREA may assign this Agreement,
or any rights or obligations hereunder, to an affiliate, subsidiary or any
entity owned or controlled by PREA, or pursuant to merger, consolidation,
demutualization, change of control or corporate reorganization upon notice to
▇▇▇▇▇▇▇▇▇▇.▇▇▇. This Agreement shall be binding upon, and inure to the benefit
of, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and PREA and their successors and permitted assigns. Any
prohibited assignment or transfer shall be null and void.
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12.5 NOTICES. Notices permitted or required to be given
hereunder shall be deemed sufficient if given by registered or certified mail,
postage prepaid, return receipt requested, by private courier service, or by
facsimile addressed to the respective addresses of the parties first set forth
above, or at such other addresses as the respective parties may designate by
like notice from time to time. Notices so given shall be effective upon (a)
receipt by the party to which notice is given, or (b) on the fifth (5th) day
following domestic mailing or the tenth (l0th) day following international
mailing, as may be the case, whichever occurs first.
12.6 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.
12.7 AMENDMENT. This Agreement may not be modified, amended,
rescinded, canceled or waived, in whole or in part, except by written amendment
signed by both parties hereto.
12.8 GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of California, without regard to its
conflicts of laws rules.
12.9 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.
12.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts and each such counterpart shall be deemed an original hereof.
12.11 WAIVER. No failure by either party to take any action or
assert any right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving rise to such
right.
12.12 REMEDIES. All remedies available to either party
hereunder shall be cumulative in nature, and not exclusive.
12.13 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. Neither
party shall have the power to obligate or bind the other 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 PREA. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ 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.
12.14 INSURANCE. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall obtain from a company or
companies acceptable to PREA and maintain in force during the term of this
Agreement and for not less than two (2) years thereafter, the following
insurance coverages in at least the amounts indicated:
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- Worker's Compensation - Statutory
- Employer's Liability - Not less than $250,000
- Comprehensive General Liability - Not less than $1,000,000
Insurance including, Broad Form combined single limit
Contractual, Broad Form Property
Damage, Personal Injury, Completed
Operation and Products coverage.
- Comprehensive Auto - Not less than $1,000,000
Liability including, Owned, combined single limit
Non-owned and Hired Car coverage.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall, upon request, provide PREA with a
certificate or Certificates of Insurance evidencing that the above-noted
insurance requirements have been satisfied and specifying the PREA shall receive
a 30-day advance notice of any cancellation of or reduction in coverage.
12.15 SURVIVAL. All provisions of this Agreement relating to
proprietary rights, confidentiality and non-disclosure, indemnification and
limitation of liability shall survive the completion of the Services or any
termination of this Agreement.
12.16 NO PUBLICITY. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ may not use PREA's name, or
any trademark, service ▇▇▇▇, trade name, logo or other commercial or product
designations of PREA without the prior written consent of PREA in each instance.
12.17 EEO REQUIREMENTS. The following clauses shall apply if
required by applicable law with respect to the performance of this Agreement and
if this Agreement is not otherwise exempt under federal law or applicable
regulations:
(a) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ represents that it is an equal opportunity
employer, as described in Section 202 of Executive Order
11246, dated September 24, 1976, as amended, and as such
agrees to comply with the provisions of said Executive Order
and its implementing regulations during the performance of
this Agreement; and
(b) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to comply with the affirmative
action requirements of Part 60-741.4 Title 41, Code of Federal
Regulations, with respect to individuals with disabilities
during the performance of this Agreement; and
(c) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to comply with the affirmative
action requirements of Part 60-250.4 Title 41, Code of Federal
Regulations, with respect to Disabled Veterans and Veterans of
the Vietnam Era during the performance of this Agreement; and
(d) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to comply with the provisions of
Executive Order 11625 and its implementing regulations with
respect to the utilization of minority business enterprises
during the performance of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the Effective Date.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, A JOINT VENTURE OF ▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. AND ENTREPORT
CORPORATION
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. ENTREPORT CORPORATION
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President President
THE PRUDENTIAL REAL ESTATE AFFILIATES, INC.
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President, Network Services
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