due it under
this Agreement from the other party. If in the written opinion of such auditors
there has been an under-reporting by a party of more than five percent (5%) of
the total amounts due during any quarterly period, the party that underpaid
shall pay the costs of such audit (up to the amount of the underpayment) in
addition to all unpaid amounts then owing.
5.
PROPRIETARY RIGHTS.
(A)
OWNERSHIP.
VCAMPUS ACKNOWLEDGES AND AGREES THAT THE CONTENT AND
THE ONLINE MATERIAL AND ALL RIGHT, TITLE AND INTEREST THEREIN, IS AND SHALL
REMAIN THE EXCLUSIVE PROPERTY OF PUBLISHER AND VCAMPUS SHALL HAVE NO RIGHTS TO
COPY, USE, REPRODUCE, DISPLAY, PERFORM, MODIFY OR TRANSFER THE CONTENT OR THE
ONLINE MATERIAL EXCEPT AS PROVIDED HEREIN. PUBLISHER ACKNOWLEDGES AND AGREES
THAT VCAMPUS SHALL RETAIN ALL ITS RIGHTS IN THE VCAMPUSÔ. TITLE TO THE VCAMPUSÔ,
ANY UPDATES OR MODIFICATIONS THERETO, ANY
3
COPIES THEREOF, IN WHOLE OR IN PART, AND ALL RELATED COPYRIGHTS, TRADE SECRETS,
AND DOCUMENTATION WILL AT ALL TIMES REMAIN WITH VCAMPUS, ITS LICENSORS AND/OR
ITS SUPPLIERS, AS APPLICABLE, FOR VCAMPUS OWNED LIBRARY AND THIRD PARTY COURSE
CONTENT.
(B)
TRADEMARK USAGE. VCAMPUS SHALL NOT USE ANY PUBLISHER TRADEMARKS,
LOGOS OR OTHER IDENTIFIERS (THE "MARKS") IN ANY MANNER OTHER THAN AS IS
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, WITHOUT PUBLISHER'S PRIOR WRITTEN
APPROVAL. VCAMPUS ACKNOWLEDGES AND AGREES THAT: (I) THE MARKS ARE AND SHALL
REMAIN THE SOLE PROPERTY OF PUBLISHER, AND (II) NOTHING IN THIS AGREEMENT SHALL
CONFER IN VCAMPUS ANY RIGHT OF OWNERSHIP IN THE MARKS.
6.
Publicity. Within two weeks of execution
of this Agreement, VCampus and Publisher will jointly issue a press release that
is reasonably acceptable to each party.
7.
REPRESENTATIONS AND WARRANTIES.
(A)
REPRESENTATIONS AND WARRANTIES OF
PUBLISHER. PUBLISHER REPRESENTS AND WARRANTS TO VCAMPUS AS FOLLOWS.
(i)
Publisher has all rights and has obtained all corporate and other
approvals, consents, release clearances, licenses and authorizations needed for
the execution and performance of this Agreement and the grant of rights and
licenses hereunder, and neither the execution nor performance of this Agreement
violates or conflicts with any other agreement of Publisher.
(ii)
The Marks and the Content do not and will not infringe or
otherwise violate any copyright or misappropriate any trade secret or otherwise
violate any right of any third party or any laws, rules or regulations.
(B)
DISCLAIMER. EXCEPT AS SET FORTH ABOVE, PUBLISHER DISCLAIMS ALL
WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(c)
Representations and Warranties of VCampus. EXCEPT AS PROVIDED
ABOVE, VCAMPUS MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY
MATTER, INCLUDING BUT NOT LIMITED TO, COURSES, FEATURES OR CAPABILITIES OF THE
VCAMPUSÔ, THE COMPANY SERVER SOFTWARE, OR OTHER SOFTWARE, HARDWARE OR MATTER
PRODUCED OR PROVIDED UNDER THIS AGREEMENT AND ALL PRODUCTS AND SERVICES ARE
PROVIDED "AS IS". IN ADDITION TO AND WITHOUT LIMITATION OF THE DISCLAIMER OF
WARRANTIES PROVIDED