Web Site and Software Development Agreement

WEB SITE AND SOFTWARE DEVELOPMENT AGREEMENT

THIS WEB SITE AND SOFTWARE DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of this ______day of ______, 2000 (the "Effective Date"), by and between Citrix Systems, Inc. a Delaware corporation with its principal place of business at 6400 N.W. 6th Way Fort Lauderdale, FL 33309, USA ("Citrix") and Viviance new education, inc. a Delaware corporation with its principal place of business at 200 East Sixth Street, Suite 220, Austin, Texas 78701 ("Viviance"):

WITNESSETH:

WHEREAS, Citrix is a provider of application server software and services for enterprise; and

WHEREAS, Citrix has a developed a new proprietary application server technology under the name “Vertigo”; and

WHEREAS, Viviance is a provider of Internet based solutions for the development, delivery and hosting of educational and training programs, and

WHEREAS, the parties desire for Viviance (a) to develop a training application that will provide for a Web based learning hub for Vertigo via a WebSite where Vertigo customers and developers can receive training in the use of Vertigo; and

WHEREAS, the parties mutually desire to set forth the terms applicable to development of the training application and payment therefor;

NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, Citrix and Viviance, intending to be legally bound, hereby agree as follows:

SECTION 1 - DEFINITIONS

When used in this Agreement, the following terms shall have the meanings ascribed to them:

1.1  Agreement means this Agreement and all exhibits hereto.

1.2  Change Order means a document mutually agreed to by the parties setting forth a change to the Statement of Work (Appendix A).

1.3  Citrix Content means the existing training materials developed by Citrix for its products and such other content provided by Citrix with respect to the Vertigo Applications as the parties may agree upon in writing.

1.4  Citrix Trademarks means those trademarks, trade names, service marks and trademarks owned by Citrix and used in the identification and promotion of Citrix products and services.

1.5  Domain Name means the Uniform Resource Locator used to locate the Vertigo Learning Hub on an Internet browser.

1.6  Intellectual Property means any and all intellectual property associated with the subject matter to which the term refers in context herein, including, without limitation, designs, formulas, procedures, methods, apparatus, ideas, creations, improvements, works of authorship, materials, processes, inventions, techniques, data, know-how, show how, algorithms, programs, subroutines, tools, patents and patentable materials, trademarks and service marks, copyrights and copyrightable materials, and trade secrets.

1.7  SME means the “subject matter expertise” of Citrix with respect to the Citrix Content.

1.8  Statement of Work means the statement of work attached hereto as Appendix A and as may be amended from time to time by mutual agreement pursuant to a Change Order.

1.9  Time and Materials Basis means Viviance’s procedure for billing its clients for the time of all Viviance personnel engaged on a matter covered by this Agreement at its standard rates and all materials consumed or utilized in the performance of this Agreement.

1.10  Vertigo Applications means the applications to be developed by Viviance for the Vertigo Learning Hub and set forth in the Statement of Work (Appendix A) as the Vertigo Portal and the Vertigo Courseware. The Vertigo Applications will be developed and operate within the ThinkTanx® environment in accordance with the specifications set forth in the Statement of Work (Appendix A) and as otherwise mutually agreed to between the parties.

1.11  Vertigo Learning Hub means the WebSite at which the Vertigo Applications will be deployed.

1.12  Vertigo Courseware is a Vertigo Application defined in the Statement of Work (Appendix A).

1.13  Vertigo Portal is a Vertigo Application defined in the Statement of Work (Appendix A).

1.14  Viviance Software means ThinkTanx, Viviance’s proprietary authoring platform and overall web infrastructure which provides for the development and operation of web-based training solutions and any other software owned or developed by Viviance.

1.15  Viviance Trademarks means the trademarks, trade names, service marks and trademarks used by Viviance in the identification and promotion of Viviance products and services.

SECTION 2 - DEVELOPMENT OF THE VERTIGO APPLICATIONS

2.1  Development Viviance shall develop the Vertigo Applications for the Vertigo Learning Hub in accordance with the specifications set forth in the Statement of Work (Appendix A) and as may be agreed to by Viviance and Citrix from time to time pursuant to a Change Order. Viviance may use ThinkTanx and other Viviance Software or portions thereof in developing the Vertigo Applications.

2.2  Citrix Content - Citrix shall provide any required Citrix Content at its own cost and in a format reasonably acceptable to Viviance to enable Viviance to efficiently develop the Vertigo Applications. Additionally, Citrix will supply SME to Viviance as required by Viviance to develop the Vertigo Applications To the extent Citrix does not timely provide the Citrix Content to Viviance, the fees hereunder are subject to increase (based on a Time and Materials basis) and Viviance’s performance hereunder may be delayed for a corresponding period of time.

2.3  Citrix Access - Citrix will be afforded reasonable access to Viviance’s development team during the development of the Applications.

2.4  Change Orders Citrix may request a change to an Application at any time by specifying the desired change in writing to Viviance, which shall not be unreasonably refused by Viviance. Within five days of receipt of the Change Order request, Viviance will provide Citrix with either (i) an acceptance of the Change Order together with the amount of additional fees and time required to implement the Change Order, or (ii) a reasonably detailed explanation of why the requested Change Order cannot be implemented.

2.5  Acceptance - Each Application shall be complete when Citrix has accepted the deliverables with respect to such Application called for in the Statement of Work (Appendix A). Citrix will accept each Application as complete provided the work associated with such Application meets the specifications. If Citrix does not accept any Application, or deliverable included as part thereof, it will identify any deficiencies in writing to Viviance in reasonable detail and promptly meet with Viviance as necessary to enable Viviance to perform any necessary corrections or modifications to the Application. In the event of a dispute regarding acceptance of an Application or part thereof, the parties shall utilize the Dispute Resolution procedure set forth in Section 13 hereof.

SECTION 3 – HOSTING OF THE VERTIGO LEARNING HUB

3.1  Situs - The Vertigo Learning Hub shall be deployed on Viviance’s Servers accessible via the URL for the Domain Name in accordance with the Vertigo Learning Hub specifications set forth in the Statement of Work (Appendix A).

3.2  Domain Name - Citrix shall be responsible for selecting and obtaining the Domain Name. As between Citrix and Viviance, Citrix shall own the rights in the Domain Name.

3.3  Performance - Viviance shall provide storage space and bandwidth utilization on the Viviance server on which the Vertigo Learning Hub is deployed sufficient to allow the Vertigo Learning Hub to function in a manner similar to other commercial World Wide Web sites receiving a similar volume of traffic. Viviance shall maintain an uptime for the Vertigo Learning Hub and access to the Vertigo Applications that is no less favorable than the up time available on other Viviance-hosted web sites, and in no event less than a 98% uptime as measured on a daily basis.

3.4  Go Live Date – The projected Go Live date for the Vertigo Learning Hub and the Vertigo Applications is December 11th, 2000, and each party agrees to use reasonable commercial efforts, including promptly supplying the Citrix Content and SME to Viviance, to have the Vertigo Applications developed and the Vertigo Learning Hub completed in accordance with the agreed specifications and ready for live operation no later than the Launch Date. To the extent Citrix does not timely provide the Citrix Content or SME to Viviance, the launch date shall be delayed for a corresponding period of time.

3.5  Branding - The Vertigo Learning Hub shall be co-branded with the Citrix Trademark and the Viviance Trademark, and will conform generally to the look and feel of the Citrix Web Site. Viviance shall have an attribution on each principal page of the Vertigo Learning Hub and a hyper-link to Viviance's web site at a location and with, a prominence within the Vertigo Learning Hub that is mutually acceptable.

3.6  E-Commerce – The Vertigo Learning Hub will not initially have an application to enable e-commerce transactions. In the event Citrix desires to enable e-commerce as part of the Vertigo Learning Hub Viviance and Citrix will negotiate in good faith the development of an e-commerce application on a time and materials basis.

3.7  Customer Information - Any customer lists or other customer information generated in connection with the operation of the Vertigo Learning Hub ("Customer Information") shall be governed in accordance with the terms of a privacy policy (“Privacy Policy”) to be adopted by Citrix and amended from time to time as required by applicable law. Citrix will provide the Privacy Policy and any changes thereto to Viviance on a timely basis.

SECTION 4 - COMPENSATION

4.1 Vertigo Applications Development and Vertigo Learning Hub Development Fees – The Fees for development of the Vertigo Applications and the Vertigo Learning Hub shall be calculated on a Time and Materials Basis, subject to a maximum amount of Three Hundred Fifty Thousand Dollars ($350,000 herein referred to as the “Maximum Fee”). The Maximum Fee covers all work set forth in the Statement of Work (Appendix A) and is subject to increase solely for the following:

(a)  increases caused by a delay or failure of Citrix to supply Citrix Content or SME,

(b)  increases as provided for in an agreed Change Order.

(c)  travel and related expenses, provided same are approved in advance by Citrix.

(d)  any additional Applications requested by Citrix.

Viviance shall use commercially reasonable efforts to complete the Applications and Learning Hub for less than the Maximum Fee .

4.2 Payment - All fees provided for in this Agreement shall be billed by Viviance to Citrix monthly with payment being due within ten days of the date of invoice. Citrix has pre-paid the amount of twenty-five thousand dollars ($25,000) which will be credited against fees for development of the Vertigo Applications until fully utilized.

4.3 Hosting Fees – The base fee for hosting the Vertigo Learning Hub shall be $1,200 per month, to be prepaid on an annual basis.

SECTION 5 – COMPETING ACTIVITIES

5.1 Viviance - Viviance shall be free during and after the development of the Vertigo Applications and Vertigo Learning Hub to develop other web sites and provide training materials for any other client, provided however that such development or materials do not make use of the Citrix Content or Confidential Information of Citrix. Viviance shall not, however, intentionally design a Vertigo Learning Hub for one of its other clients that "looks and feels" specifically like the Vertigo Learning Hub.

5.2 Citrix - Citrix shall be free during and after the development and operation of the Vertigo Learning Hub to provide or display Citrix Content to any entity in its sole discretion, including without limitation providing such content for display on other web sites.

SECTION 6 - CONFIDENTIAL INFORMATION

6.1 "Confidential Information" - means any trade secrets, confidential data or other confidential information, oral or written, relating to or used in the business of a party (the "Disclosing Party"), that a party (the "Receiving Party") may obtain from the Disclosing Party during the term of this Agreement (the "Confidential Information"). The terms of this Agreement will constitute Confidential Information, except to the extent that such information is disclosed in good faith and in confidence to a legitimate potential, or actual, strategic investor, investment banker, venture capital firm, or consultant, or as required by regulation, statute or other law. The restrictions on use and disclosure of Confidential Information, do not apply to Confidential Information that: (a) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party; (b) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without any use of the Confidential Information; (e) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party, without breach of this Agreement, by the Receiving Party; or (f) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.

6.2 Use and Disclosure - Each party agrees: (a) to treat the other party's Confidential Information with the same degree of care as it maintains its own information of a similar nature from disclosure (and in no event less than reasonable care) and (b) and that it will not use the Confidential Information except to exercise its rights and obligations under this Agreement. Upon termination or expiration of this Agreement for any reason, a Receiving Party shall return such Confidential Information and all copies thereof, to the Disclosing Party of such Confidential Information.

6.3 Exceptions - The Receiving Party may disclose the Disclosing Party's Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the Receiving Party provides prompt notice thereof to the Disclosing Party and provides reasonable assistance to the Disclosing Party's efforts to seek a protective order or otherwise prevent or restrict such disclosure.

SECTION 7 - LICENSES

7.1 Citrix Content - Subject to the terms and conditions of this Agreement, Citrix grants to Viviance a non-transferable, worldwide, non-exclusive, fully paid-up license (without the right to sub-license) to use, reproduce, display and transmit the Citrix Content solely on the Vertigo Learning Hub and as part of the Applications pursuant to the terms of this Agreement.