EXHIBIT 10.6
PRIVATE-LABEL WEB SITE AGREEMENT
Agreement made this 2 day of February, 2000, between DEARBORN FINANCIAL
PUBLISHING, INC. ("Dearborn") and ISUCCEED.COM, INC. ("iSucceed").
WHEREAS, Dearborn maintains an internet site (the "Dearborn Site")
which provides authorized users on-line access to the real estate continuing
education courses listed on Exhibit A hereto (the "Courses");
WHEREAS, iSucceed desires to augment its real estate agent web site
with Dearborn's continuing education content and service offerings, and Dearborn
desires to create and maintain on its server on a private-label basis the
Branded Site (as defined below), to enable iSucceed's end users to access
Dearborn's content and service offerings under iSucceed's brand;
NOW, THEREFORE, for value received, the parties hereto agree as
follows:
1. Definitions.
a. "Branded Site" means a Web site that is designed, developed
and maintained by Dearborn on its servers at a URL designated
by Dearborn that conforms to the specifications set forth in
this Agreement including Exhibit B.
b. "Link(s)" means one or more hyperlinks established from within
the iSucceed Site (and/or from within email) that enables an
end user of the iSucceed Site to access the Branded Site.
c. "ISucceed Logos" means the iSucceed name and logo(s),
including all artwork, graphics, icons and other content
provided by iSucceed to Dearborn for use in connection with
the Branded Site.
d. "ISucceed Site" means the proprietary Web site owned or
controlled by iSucceed presently located at the URL
wwwisucceed.com, and any successor, replacement or
supplementary Web sites, other than the Branded Site, owned or
controlled, in whole or in part, by iSucceed that are branded
with the iSucceed name or use the iSucceed domain.
e. "Dearborn Licensed Content" means all Dearborn continuing
education courses in the field of real estate but not in
insurance, securities or other fields approved for distance
learning over the internet for continuing education credit by
state regulatory bodies (CE Courses). All CE Courses Dearborn
maintains on Web sites owned by Dearborn and any CE Courses
which Dearborn develops in the future.
f. "Dearborn Logos" means the Dearborn and REcampus names and
logo(s), including all artwork, graphics, icons and other
branding material owned or controlled by Dearborn and used on
the Dearborn Site.
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g. "Dearborn Site" means the proprietary Web site owned or
controlled by Dearborn presently located at the URL
www.recampus.com, and any successor, web sites.
h. "Launch Date" means the date that the Branded Site is released
to the iSucceed members and customers.
i. Proprietary Real Estate Schools means real estate schools
owned by or customers of Dearborn, it's affiliates or their
customers offering real estate related courses.
j. "Paying Member" means any customer who enrolls as a member at
the iSucceed.com Web site and pays a monthly membership fee.
If no monthly membership fee is paid by the customer due to an
iSucceed promotion (i.e., 30 days free), then such member
shall become a Paying Member on the 3lst day after initial
enrollment.
k. "Founders Circle" means faculty members of iSucceed who have
access to the iSucceed site.
2. Service Delivery.
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a. Subject to the terms and conditions of this Agreement,
Dearborn hereby grants iSucceed a non-transferable license to
permit iSucceed's members who are authorized to access the
iSucceed Site to access the Branded Site to utilize Dearborn's
Licensed Content on-line during the term of this Agreement.
This license is solely for on-line use. In no event is
iSucceed or any person accessing the Dearborn Site authorized
to download the Courses or other content from the Dearborn
Site or otherwise copy, reproduce, resell, relicense or use
the Courses or other content.
b. Dearborn agrees that during the term of this Agreement, and
provided iSucceed is not in default hereunder, Dearborn will
not grant to any other party any right to use Dearborn's real
estate on-line Continuing Education Courses on the internet or
any other on-line use except as listed in 2c below.
c. Section 2b shall not restrict Dearborn from granting any
rights in Dearborn's Licensed Content or providing online
Continuing Education Course Services to any four-year colleges
and universities; two-year colleges and universities;
proprietary real estate schools; state and local real estate
boards and associations; or regional/local brokerage firms
located in states in which Dearborn or it's affiliates
currently own or may own in the future, proprietary real
estate schools; or the National Association of Realtors using
ala carte pricing.
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3. Registration and Taking Courses.
--------------------------------
iSucceed's members who register for and take Courses shall do
so through the Branded Site, in accordance with Dearborn's
policies and procedures set forth on the Branded Site.
4. Service Delivery Fee.
---------------------
a. ISucceed agrees to pay Dearborn a monthly license fee in the
amount of the greater of (i) $2.50 per member for all members
who reside in the United States ($5.00 per member referred by
Dearborn), calculated on the number of Paying Members as of
the last day of the month, or (ii) the guaranteed minimum
license fees described in subsections (c), (d) and (e) below.
The monthly license fee shall be determined based on
iSucceed's total membership, regardless of the number of such
members, if any, who take any of the Dearborn Licensed Content
Courses in any month. If any member who takes a Dearborn
Licensed Content Course does not become a paying member or
ceases to be an iSucceed member within six months from his or
her initial membership date, iSucceed will pay Dearborn a
withdrawal fee in the amount of $20.00 for such member.
Dearborn will receive $2.50 per month on all "Founders Circle"
members.
b. If at the end of six months from the start up date (estimated
April 1st) Dearborn does not get state approval for any states
listed on Exhibit A, Dearborn agrees to waive payment for
members who are residents of those states where it does not
gain approval. Payments will again be paid when approval is
gained in those states.
c. The guaranteed minimum license fees shall begin on the
Measurement Date, which is the later of the Launch Date of the
Branded Site or upon which the Dearborn Licensed Content
contained in the Branded Site is approved for distance
learning by at least 18 states.
Month 1 $ 3,750
Month 2 7,500
Month 3 11,250
Month 4 15,000
Month 5 18,750
Month 6 22,500
Month 7 26,250
Month 8 30,000
Month 9 33,750
Month 10 37,500
Month 11 41,250
Month 12 45,000
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d. The guaranteed minimum license fees for months 13-24 after
Measurement Date are $45,000 per month.
e. The guaranteed minimum license fees for months 25-36 after
Measurement Date are $56,250 per month.
f. The minimum license fee for any month shall be waived if the
cumulative license fees payable (and actually paid) for the
period from the Measurement Date through such month pursuant
to subsection 4(a)(i) exceed the cumulative minimum license
fees payable through such month pursuant to subsection
4(a)(ii) above.
g. Members referred by Dearborn shall mean persons who become
paying members as a result of Dearborn's marketing activities,
such as referrals, promotions, and marketing campaigns.
h. Within thirty (30) days after the end of each month, iSucceed
shall deliver to Dearborn its report of new members and
members for such month, in reasonable detail, accompanied by
payment of the fee payable for such month.
i. Dearborn shall have the right to examine the relevant books
and financial records of iSucceed from time to time, with
reasonable notice during normal business hours, to determine
the accuracy of the reports and payments. Such examination
shall be at the expense of Dearborn, un1ess such examination
reveals an underpayment of five percent (5%) or more in any
year, in which case iSucceed shall pay Dearborn the expense of
the examination, upon invoice from Dearborn.
5. Ownership of iSucceed Data.
---------------------------
Any individual user data previously owned by either party
shall remain the property of such party. No rights or
interests of any nature in or to such data are transferred or
granted hereunder, except as specifically provided herein. Any
information gathered by or submitted to Dearborn regarding end
users of tile Branded Site ("iSucceed Data") shall be owned
exclusively by iSucceed, and Dearborn hereby transfers and
assigns all right, title and interest therein to iSucceed,
including without limitation all intellectual property rights
therein. Dearborn shall maintain the iSucceed Data in
confidence and shall not use the iSucceed Data for any purpose
other than fulfilling its obligations under this Agreement,
nor disclose the iSucceed Data without the prior written
consent of iSucceed. Upon request from iSucceed from time to
time, Dearborn shall promptly deliver the iSucceed Data to
iSucceed in a format reasonably requested by iSucceed.
Notwithstanding the foregoing, with respect to any end user
data that Dearborn can demonstrate was separately gathered by
or submitted to Dearborn from end users accessing the Dearborn
Site, any such data shall not be subject to the foregoing
restrictions.
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6. Maintenance and Support of Branded Site.
----------------------------------------
a. Dearborn will be solely responsible for maintaining all end
user support functions related to Dearborn's Licensed Content
at its expense related to the Branded Site, including without
limitation, responses to end user inquiries and fulfillment.
Dearborn agrees to provide a high level of end user support to
iSucceed's end users, in at least the same level of support
standard as it maintains the Dearborn Site, but in no event
less than 48 hour response time to customer inquiries.
7. Term.
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a. The initial term of this Agreement shall commence on the
Launch Date of Branded Site (anticipated to be April 1, 2000)
and end three (3) years thereafter; subject to early
termination pursuant to subsection 7 (c) and Section 15 below;
and provided the parties hereto may extend such term by
written agreement.
b. This Agreement shall be automatically extended for successive
periods of twelve (12) months each following the initial term
and each renewal term. Either party to this Agreement may give
written notice not to extend the Agreement prior to six (6)
months of the end of the term, subject to early termination
pursuant to subsection 7(c) and section 15.
c. Notwithstanding the foregoing, Dearborn shall have the right
to terminate the exclusivity provisions of Section 2(b) of
this Agreement if, at the end of month 12 iSucceed has not
generated fees paid to Dearborn in excess of one hundred and
ten percent (110%) of the cumulative minimum guarantee as
listed in chart (4c) for months 1-12 ($292,500 x 110% =
$321,750), or if at the end of month 24, iSucceed has not
generated fees paid to Dearborn in excess of one hundred ten
percent (110%) of the cumulative minimum guarantee of months
13-24 ($540,000 x 110% = $594,000). Such notice shall be given
to iSucceed within thirty (30) days of the end of month l2 and
24 as per Section 16 of this Agreement.
d. Prior to the end of the 30th month of this agreement, Dearborn
and iSucceed agree to review the license fee and monthly
guaranteed minimum license fee as stipulated in Section 4 and
negotiate changes in such fees based on usage and market
conditions, with such changes effective on the first day of
the 31st month of this Agreement. If agreement is not reached
between the parties, then the fees set forth in Section 4
shall remain in effect and either party can cancel this
Agreement as of the end of the initial 36 month term with six
months prior notice as per Section 16 of this Agreement.
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8. Representations and Warranties; Indemnity.
------------------------------------------
Each party represents and warrants to the other that: (i) it
has the full power and authority to enter into this Agreement
and to grant the rights granted herein; (ii) it is the sole
owner or is a valid licensee of its respective Web site and
all content contained therein or licensed by such party
hereunder, and has secured all necessary licenses, consents
and authorizations with respect to the use of such content
including any hypertext links and all elements thereof to the
full extent contemplated herein; (iii) no part of its Web site
content or other content licensed hereunder violates or
infringes upon the patent rights, copyrights, trade secrets,
trademarks or other intellectual property rights or other
rights of any person or entity or constitutes defamation,
invasion of privacy, or the violation of any right of
publicity or other rights of any person or entity; (iv) all
data supplied by such party is accurate in all material
respects, and all inaccuracies will be promptly corrected; and
(v) it has complied and shall continue to comply with all
applicable legislation, rules and regulations regarding the
Web site content or sales transactions conducted via the Web
site. All representations of iSucceed hereunder shall apply to
the iSucceed Site and iSucceed Logos. All representations of
Dearborn hereunder shall apply to the Dearborn Site, the
Branded Site, all Enhancements, all Co-Branded Sites, the
Dearborn Logos, and the Dearborn Licensed Content.
9. Confidentiality.
----------------
a. NONDISCLOSURE. Each party acknowledges that by reason of its
relationship to the other party under this Agreement it will
have access to certain information and materials concerning
the other party's business, plans, customers, technology and
products that are confidential and of substantial value to
such party (referred to in this Section 9 as "Confidential
Information"), which value would be impaired if such
Confidential Information were disclosed to third parties. The
terms of this Agreem4t shall be deemed to be the Confidential
Information of iSucceed. Each party agrees to maintain all
Confidential Information received from the other, both orally
and in writing, in confidence and agrees not to disclose or
otherwise make available such Confidential Information to any
third party without the prior written consent of the
disclosing party. Each party further agrees to use the
Confidential Information only for the purpose of performing
this Agreement. No Confidential Information shall be deemed
confidential unless so marked if given in writing or, if given
orally, identified as confidential orally prior to disclosure
and confirmed in writing within thirty (30) days.
b. EXCLUSIONS. The parties' obligations under Section 9(a) above
shall not apply to Confidential Information which: (i) is or
becomes a matter of public knowledge through no fault of or
action by the receiving party; (ii) was rightfully in the
receiving party's possession prior to disclosure by the
disclosing party; (iii) subsequent to disclosure, is
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rightfully obtained by the receiving party from a third party
who is lawfully in possession of such Confidential Information
without restriction; (iv) is independently developed by the
receiving party without resort to the disclosing party's
Confidential Information; or (v) is required by law or
judicial order, provided that prior written notice of such
required disclosure is furnished to the disclosing party as
soon as practicable in order to afford the disclosing party an
opportunity to seek a protective order and that if such order
cannot be obtained disclosure may be made without 1iability.
Whenever requested by a disclosing party, a receiving party
shall immediately return to the disclosing party all
manifestations of the Confidential Information or, at the
disclosing party's option, shall destroy all such Confidential
Information as the disclosing party may designate.
10. No Other Permitted Uses.
------------------------
iSucceed shall have no right to reproduce or distribute the
Courses.
11. License of Dearborn Trademarks.
-------------------------------
Dearborn hereby grants to iSucceed a license to use and make
copies of Dearborn's logo and trademarks ("Marks") for
marketing purposes in connection with this Agreement on the
iSucceed Site as well as in printed materials. ISucceed shall
obtain the prior written approval from Dearborn prior to any
use of the Marks, which approval shall not be unreasonably
withheld, delayed or conditioned.
12. Customer and Technical Support.
-------------------------------
Dearborn shall be responsible at its own expense to provide
all customer and technical support relating to the Courses.
13. Intellectual Property Rights.
-----------------------------
Dearborn's intellectual property rights to the Courses and the
Dearborn Site will remain the sole property of Dearborn, and
iSucceed shall have no right, title or interest therein.
14. Relationship of the Parties.
----------------------------
The parties shall be independent contractors hereunder and
neither party shall have the power or authority to bind the
other party with respect to any third party. Except as
specifically provided herein, each party shall bear its own
costs and expenses.
15. Termination.
------------
This Agreement shall automatically terminate if any of the
terms of this Agreement are violated and is not cured as
described below. If either party defaults in the performance
of this Agreement or is in breach of a material provision
hereof, the other party, at its option, may terminate this
agreement by giving written notice to the breaching party
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describing the nature of such breach and, to the extent such
breach is curable, giving such breaching party thirty (30)
business days from the sending of such notice to cure such
breach. If at the end of such thirty (30) day period the
breach has not been cured, this Agreement shall automatically
terminate.
16. Communications.
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All notices, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been
duly given: (a) on the date of service if served personally on
the party hereto to whom notice is to be given; (b) on the
date of transmission if sent by facsimile transmission to the
telecopy number given below, and telephonic confirmation of
transmission is obtained promptly after completion of
transmission; (c) on the day after delivery to Federal Express
or similar overnight carrier or the Express Mail Service
maintained by the United States Postal Service; or (d) on the
fifth day after mailing, if mailed to the party to whom such
notice is to be given, by first class mail, registered or
certified, postage prepaid and properly addressed, to the
party as follows:
If to Dearborn:
Dearborn Financial Publishing, Inc.
155 North Wacker Drive, 9th floor
Chicago, IL 60606
Attention: President
Telecopy: (312) 836-1021
With a copy to:
Kaplan Educational Centers, Inc.
888 Seventh Avenue, 23d floor
New York, NY 10106
Attention: General Counsel
Telecopy: (212) 492-5860
If to iSucceed:
iSucceed.com, Inc.
10455 Sorrento Valley Road, Suite 204
San Diego, CA 92121
Attention: William A. Shue
Telecopy: (858) 643-1732
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With a copy to:
Oppenheimer Wolff & Donnelly LLP
500 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Attention: Daniel K. Donahue, Esq.
Telecopy: (949) 823-6040
Any party hereto may change its address for the purpose of this Section
by giving the other party written notice of its new address in the
manner set forth above.
17. Section Headings.
-----------------
The headings of the Sections of this Agreement are inserted
for convenient reference only and are not intended to be part
of or affect the meaning or interpretation of this Agreement.
18. Applicable Law and Forum.
-------------------------
This Agreement shall be governed by the laws of the State of
Illinois without regard to conflicts of laws. The parties
hereto hereby agree on behalf of themselves and any person
claiming by or through them that the sole jurisdiction and
venue for any litigation arising from or relating to Agreement
shall be in an appropriate federal or state court located in
Chicago, Illinois.
19. Entire Agreement.
-----------------
This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supercedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or
written, of the parties.
20. Severability.
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If any provisions of this Agreement shall be declared null,
void, or unenforceable in whole or in part by any court,
arbitrator, or governmental agency, said provision shall
survive to the extent that it is not so declared and all the
other provisions of this Agreement shall remain in full force
and effect unless, in each case, such declaration shall serve
to deprive any of the parties hereto of the fundamental
benefits of this Agreement.
21. Amendments.
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No amendment or modifications to this Agreement shall be valid
or enforceable unless in writing executed by the authorized
representatives of the parties hereto.
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22. Waiver.
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No term or provision hereof shall be deemed waived and no
breach hereof shall be deemed consented to, unless such waiver
or consent, as the case may be, is express and in writing
signed by the party claimed to have waived or consented. No
such waiver shall constitute a waiver of any other term or
provision hereof, and no such consent shall constitute a
consent to any other breach hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
authorized representatives as of the date and year first written above.
DEARBORN FINANCIAL PUBLISHING, INC.
By: /s/ Carol L. Lutz
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Vice President
ISUCCEED.COM, INC.
By: /s/ Rick Kuntz
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Its: President
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EXHIBIT A
DATE COURSE CE CREDIT HOURS
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JANUARY, 2000
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Georgia *National CE 6 each
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New York National CE 4-4.5 each
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Oregon National CE 7.5 each
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Washington National CE 7.5 each
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FEBRUARY, 2000
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*Risk Management
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**RE Finance
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Illinois National CE
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Montana National CE
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North Dakota National CE
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West Virginia National CE 7 each
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Wyoming National CE
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MARCH, 2000
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*Fair Housing
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California CA-specific 45 hour 45
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Colorado National CE
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Florida FL-specific 14-hour 14
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Kentucky National CE
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New Mexico National CE
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Oklahoma National CE
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South Dakota National CE
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Tennessee National CE
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Virginia National CE
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APRIL, 2000
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**Combo CE: Red Flags/Environmental
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**Combo CE: Commercial/Property Management
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**Buyer Representation
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Alaska National CE
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Maine National CE
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Nebraska National CE
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MAY, 2000
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**Combo CE: Fair Housing/Diversity
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**Combo CE: Taxes/Finance
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**Ethics
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Alabama National CE
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Idaho National CE
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Iowa National CE
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Hawaii National CE
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Kansas National CE
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Louisiana National CE
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JUNE, 2000
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**Negotiation
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Nevada National CE
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JULY, 2000
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Missouri National CE
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AUGUST, 2000
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Texas Texas MCE 15 Hr. (tentative)
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EXHIBIT B
SPECIFICATIONS OF BRANDED SITE
1. ACCESS TO THE BRANDED SITE. Access to the Branded site shall be from the
iSucceed site and shall require use of the appropriate PIN number assigned by
Dearborn to iSucceed. It is anticipated that Dearborn will assign to iSucceed a
separate PIN number for each state or jurisdiction in which the Courses qualify
for CE credit, and use of such Pin number will allow access only to the Courses
for such state or other jurisdiction. Only persons using such PIN number will
have access to the Branded site. It is anticipated that iSucceed will configure
the iSucceed Site so any user properly accessing the iSucceed Site will be able
to access the Branded Site knowing the Pin number or URL. iSucceed is
responsible, at its own expense, for any programming and related costs to permit
such access from the iSucceed Site.
2. HOME PAGE. Any persons accessing the Branded Site will first see the Branded
Sites home page (the "Home Page"). The Home Page will conform to Attachment B-I
hereto, with the iSucceed Logo and text provided by iSucceed in the locations
marked on Attachment B-i
3. OTHER PAGES. The parties shall mutually agree on which other pages on the
Branded Site will display the iSucceed Logo. Examples of other pages and the
placement of the iSucceed Logo are attached hereto as Attachment B-2.
4. MODIFICATIONS AND UPDATES. Dearborn may modify the Branded Site's, Home Page
and other pages during the term of this Agreement as it determines is desireable
for the efficient maintenance and use of the Branded Site.
5. DEARBORN LOGOS AND OTHER LOGOS. Dearborn may include its "REcampus" logo and
other affailiate logos on the Home Page and other pages in the manner shown on
Attachments B-1 and B-2. Dearborn will not place other logos or advertisements
on the Branded Site.
