Exhibit
10.46


 


[***] Confidential portions of this document have
been redacted and filed separately with the Commission.


 


Second Addendum to Master Services and License Agreement
between


Bridgepoint Education and eCollege.com


 


This Addendum (“Addendum”)
to the Master Services and License Agreement between Bridgepoint Education, Inc.  (“Customer”)
and eCollege.com (“eCollege”) for
the delivery of online courses, dated September 29, 2009 (the “Agreement”), is entered into effective as
of the 15th day of December, 2009.


 


WHEREAS, Customer and eCollege
previously entered into the Agreement;


 


WHEREAS, the parties wish to amend
the Agreement as more specifically set forth below.


 


NOW THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged by the parties, the parties agree
as follows:


 


1)             Pearson
Products.  “Pearson Products” shall mean the educational products
(including associated materials) which are provided to eCollege by Pearson
Education, Inc. (“Pearson”) and
delivered to Customer for educational and instructional use.  The specific Pearson Products which will be
made available to Customer under this Agreement shall be mutually agreed to
between eCollege and Customer and documented separately.  During the term of this Agreement or for so
long as eCollege is authorized to offer the Pearson Products to Customer,
whichever period is shorter, eCollege hereby authorizes Customer to access and
use the Pearson Products and provide access to the Pearson Products to Customer’s
faculty, students and administrative staff, solely for educational and
instructional use on the eCollege System. 
Authorized users may access the Pearson Products only in accordance with
the terms and conditions set forth in this Agreement and in any end-user
license agreement (each a “EULA”) or terms
of use that may be contained in or with the Pearson Products.  Customer agrees that no other individuals or
third parties shall be allowed access to the Pearson Products.  Customer understands and acknowledges that
use of and access to the Pearson Products may be subject to pending conversion
of the Pearson Products to the eCollege System by eCollege and Pearson.  Except as expressly set forth in the
foregoing, all rights with regards to the products and services offered herein
are reserved by eCollege and Pearson and
under no circumstances shall Customer (or its users or students) resell,
publish, transfer, distribute, sublicense, provide access to, copy, adapt,
translate, reproduce, modify, enhance, or use the Pearson Products or the
content contained therein without the express written permission of Pearson or eCollege.  Customer further agrees not to remove or
alter any trademark or other proprietary notice in or on any Pearson Product.  All right, title and interest in and to the
Pearson Products and the content, materials and data contained therein, and any
derivative works thereof (whether authorized or not, including any modifications
made, specifically for Customer or to such course offerings in general, by
eCollege, Pearson or any other
third party (including Customer and its agents or representatives)), is
expressly reserved by eCollege and/or Pearson,
as applicable.  Neither eCollege or Pearson shall be obligated to
maintain, revise, enhance or update the standardized Pearson Products, unless
specifically agreed to in a separate writing from this Agreement.  eCollege may suspend use of or access to the
Pearson Products in connection with any violation of this Agreement or any
applicable EULA.  Customer shall
indemnify and hold harmless eCollege from any liability or damages incurred by Pearson or eCollege in connection with
Customer’s alteration or unauthorized use of the Pearson Products. The Pearson
Products shall only be used in conjunction with the eCollege System and in
accordance with the terms and conditions of this Agreement.  Customer accepts use of the Pearson Products
on an “AS IS” and “AS AVAILABLE” basis. 
Customer understands and acknowledges that the Pearson Products may be
retired or supplanted by new editions at any time, and that eCollege and
Pearson are under no obligation to make new editions or replacement products
available to Customer.  Neither eCollege
or Pearson makes any warranty or representation that the Pearson Products will
meet Customer’s requirements, be error-free or continue to be available for any
specific time period.  CUSTOMER
ACKNOWLEDGES AND AGREES THAT NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE
MADE BY ECOLLEGE OR PEARSON, AND ECOLLEGE AND PEARSON DISCLAIM ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NEITHER ECOLLEGE OR PEARSON WARRANTS,
GUARANTEES OR MAKES ANY REPRESENTATION 


 


	
  Addendum  091215

  	
   

  	
  eCollege
  Proprietary and Confidential

  



 


1

















 


[***] Confidential portions of this document have
been redacted and filed separately with the Commission.


 


REGARDING THE ACCURACY, RELIABILITY, CURRENTNESS, USE, OR RESULTS OF
USE, OF THE PEARSON PRODUCTS.


 


2)             Pearson
Products Fees.  Customer hereby
agrees to pay eCollege a fee per enrollment for all students using Pearson Products, in accordance with: (a) the
schedule set forth below, (b) any schedules/addenda that the parties may
add to this Agreement (whether executed in conjunction with this Agreement or
at some later date) or (c) in the absence of the foregoing, the
then-current price list (less any discounts offered by eCollege or Pearson) for
the applicable Pearson Products.  The fee
per enrollment is in addition to the
Technology Service Fee Customer must pay to eCollege for each enrollment in
Courseware, and does not count towards Customer’s guaranteed Technology Service
Fee commitments to eCollege.  To the
extent the fees per enrollment are increased by Pearson during the term of this
Agreement, continued use of such Pearson Products by Customer shall be subject
to the increased fees.


 


Pearson
Products


 




	
  Title

  	
   

  	
  Fee
  per enrollment

  
	
  MyStatsLab

  	
   

  	
  [***]

  






 


3)             Agreement
Terms Unchanged.  No terms or
conditions of the
Agreement, other than the amended terms set forth in this Addendum, are changed
by this Addendum.  Terms not defined
herein shall have the meanings set forth in the Agreement.


 


IN WITNESS WHEREOF,
the parties have entered into this Addendum effective upon the day first above
written. The persons executing this Addendum for and on behalf of the parties
hereto represent that they are fully authorized to do so for and on behalf of
their respective principals.


 


 




	
  eCollege.com

  	
   

  	
  Bridgepoint
  Education, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Matt Leavy

  	
   

  	
  By:

  	
  /s/
  Elizabeth J. Aguiar

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Matt Leavy, President

  	
   

  	
  Name:

  	
  Elizabeth
  J. Aguiar

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  VP, Learning Resources

  






 


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