Exhibit 10.38
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC. AND
CONCORDIA COLLEGE FOR THE OFFERING OF INTERACTIVE VIDEO
CONFERENCED COURSES
W I T N E S S E T H
AGREEMENT made this 19th day of August, 1999, between Concordia College
with offices located at, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000-0000
(hereinafter referred to as "CONCORDIA"), and Educational Video Conferencing
Inc., (hereinafter "EVC"), with offices located at 00 Xxxx Xxxxxx Xxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, CONCORDIA is an institution of higher learning duly certified
by the Education Department of the State of New York and accredited by the
Middle States Association of Colleges and Schools to offer undergraduate and
graduate courses, and,
WHEREAS, EVC is a domestic corporation engaged in the business of
providing access to such courses to consumers by way of interactive video
conferencing and computer conferencing, and,
WHEREAS, CONCORDIA and EVC wish to enter into a mutually beneficial
agreement whereby EVC will provide access to CONCORDIA courses to such
consumers,
NOW, THEREFORE in consideration of $10.00 in good funds, as well as
the mutual covenants contained herein, the parties hereby agree as follows:
1. a.) EVC shall have the right, for the duration of this agreement and any
renewal hereof, to offer all undergraduate courses and programs offered by
CONCORDIA via Interactive Video Conferencing/Distance Learning (hereinafter
"IVC/DL") commencing in October 1999.
b.) For the purposes of this agreement, IVC/DL shall be defined as
live, two way video conferencing, either over desktop computers equipped for
video conferencing or video conferencing room systems, as the case may be, in
which the student can see and hear the professor/instructor and the
professor/instructor can see and hear the individual student. IVC/DL also shall
include one-way video and two-way audio distance learning.
c.) Unless CONCORDIA and EVC agree otherwise in writing, the minimum
class size for the offering of an ITV/DL course shall be Fifteen (15) students.
2. EVC will provide all hardware (except personal computers, modems,
keyboards and monitors), software, and video conferencing equipment
(collectively referred to as "equipment") necessary to provide access for
CONCORDIA courses to IVC/DL students. Students taking IVC/DL courses on desktop
computers must have modern computers capable of being video enabled and function
as an IVC/DL desktop system. The parties acknowledge that it is the primary goal
of EVC to solicit students from corporations, governmental agencies, and
institutions (hereinafter "Institutional Employers") with substantial tuition
reimbursement and that EVC shall address all student use equipment issues with
the Institutional Employers and their employees. In any event, CONCORDIA shall
not be responsible for the cost of any equipment whatsoever at Institutional
Employer locations and/or students homes.
3. EVC is responsible for costs for marketing, advertising, and promotion
regarding EVC's offering of access to CONCORDIA courses. Unless otherwise
agreed, CONCORDIA will provide brochures, catalogues, course schedules, program
and course descriptions, posters, etc., to EVC for distribution to employees of
EVC's corporate, governmental and institutional clients promoting the CONCORDIA
programs and courses offered through EVC.
4. CONCORDIA shall provide rooms capable of becoming teacher stations. This
includes installing and maintaining adequate telephone lines (ISDN and regular
telephone lines) and electrical outlets. CONCORDIA will be responsible for the
cost of the telecommunication signal transport for video conferenced courses
from teacher stations to the MCU Bridge. EVC assumes responsibility or cost for
obtaining, providing, or paying for telecommunication signal transport for video
conferenced courses from the MCU Bridge to corporate locations and/or students
homes.
5. EVC will be responsible for installing and maintaining up to four (4)
teaching stations in the rooms provided by CONCORDIA to video conference IVC/DL
courses offered through EVC, subject to enrollment. All teaching stations
installed and paid for by EVC shall remain the exclusive property of EVC.
6. All equipment supplied by EVC is the sole and exclusive property of EVC,
including but not limited to any and all patents, copyrights and trademarks, if
any, associated therewith. All classroom, course and program materials or other
information supplied by CONCORDIA, and all rights and interests in said
materials will remain the sole and exclusive property of CONCORDIA.
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to CONCORDIA for IVC/DL
courses.
b.) EVC will provide reasonably prompt service for repair or
replacement of defective interactive video conferencing equipment and software
as necessary.
c.) CONCORDIA will be responsible for the prompt repair and/or
replacement of interactive video conferencing equipment located at CONCORDIA,
which may be damaged through improper or unauthorized use.
d.) CONCORDIA is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in CONCORDIA's
custody and control.
8. Neither party shall utilize the other's name or any associated
names, trademarks, copyrights, etc., without prior written consent. Such
permission shall not be unreasonably denied.
9. a.) EVC will provide faculty development to CONCORDIA faculty reasonably
required for the offering of CONCORDIA courses through EVC.
b.) CONCORDIA shall be responsible for obtaining the services of all
faculty participating in courses offered through EVC, including but not limited
to said faculty's salary, benefits (if any) and verification of qualifications.
EVC assumes no responsibility for any costs associated therewith.
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10. EVC is solely responsible to provide site locations for IVC/DL students
to participate in CONCORDIA courses. CONCORDIA assumes no responsibility for
obtaining or maintaining said sites, nor for any rent or other costs associated
therewith.
11. EVC is not responsible for curriculum, course content, faculty
qualifications, course materials or any other aspect of the academic content of
any courses offered hereunder. However, CONCORDIA agrees to be receptive to and
consider EVC input as to course content presentation and delivery of IVC/DL
courses consistent with required academic standards. If the Education Department
of the State of New York should advise that any CORCORDIA activity, curriculum
and/or academic content with EVC does not comply with the Education Department
directives or criteria, the CONCORDIA activity, curriculum and/or academic
content so referenced will neither be provided by CONCORDIA nor
marketed/distributed by EVC.
12. EVC agrees to make every reasonable effort to maintain its equipment in
good working order. However, EVC is not responsible for service or repair delays
or interruption of service caused by strikes, labor actions, power outages
(other than those limited to site locations alone), acts of God or other matters
beyond EVC's control.
13. CONCORDIA hereby acknowledges that the IVC/DL programs marketed by EVC
are targeted toward the non-traditional working adult student market and
therefore agrees to offer IVC/DL courses at dates and times appropriate to the
target market, including the hours of 8:00 a.m. to 11:00 p.m., seven days per
week, and at such other times requested by EVC's Institutional Employers and
their employees, subject to enrollment. And, including but not limited to the
three academic semesters offered each year by CONCORDIA, i.e., Fall, Spring and
Summer. EVC agrees not to schedule course dates and times on Sunday Mornings or
religious holidays when CONCORDIA courses are not offered or at other times
unacceptable to CONCORDIA.
14. a.) The parties hereby acknowledge that this agreement is intended by
the parties to facilitate the offering of college courses, degree programs
and/or courses of study.
b.) CONCORDIA shall attempt to obtain and/or maintain all New York
Department of Education, Middle States Association, and any other accreditation
necessary to the offering of college courses and credits under the applicable
law. Should CONCORDIA lose its accreditation at any time during the term of this
agreement or any renewal hereof, EVC shall have the right to cancel this
contract at the end of the semester in progress, if applicable, or immediately
if no semester is underway.
15. Administrative Functions
a.) CONCORDIA shall be responsible for all of its own administrative
functions (admissions, academic advising, registration, financial aid, etc.)
associated with the offering of IVC/DL courses through EVC. EVC's marketing
function shall include gathering and delivering to CONCORDIA the information
specified by CONCORDIA for these functions.
b.) CONCORDIA will provide to EVC all necessary administrative forms,
applications, written instructions, catalogues, etc. in advance of marketing
courses to any organization. It is understood by the parties that EVC is merely
a conduit and assumes no liability whatever for the accuracy or correctness of
the information in said forms provided by CONCORDIA nor for return of any of the
aforesaid documents to CONCORDIA.
16. Fees
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a.) CONCORDIA shall pay to EVC, on the 10th day of each month, [*] PERCENT
of the gross tuition actually collected by CONCORDIA the preceding month,
exclusive of any institutional aid or grants provided by CONCORDIA, from any
source whatever, from or on behalf of any student employed by an Institutional
Employer customer of EVC registered for and attending accredited college degree
courses being offered through EVC's, said payments to commence the month
immediately following the collection of any such tuition by CONCORDIA. All
checks for courses taken will be made out to CONCORDIA. Additionally, the
percentages calculation of payment to EVC by CONCORDIA will never exceed the
percentage calculated that EVC may subsequently negotiate with any other
Lutheran College or University, and thus may be revised from time to time.
Student application or processing fees payable to CONCORDIA are not part of this
agreement.
b.) EVC shall have the right, on a semi-annual basis, to examine the
books and records of CONCORDIA, pertaining to all students taking courses
through EVC, in order to audit any accounts due and owing the respective
parties. CONCORDIA shall have the right to audit EVC accounts for students
taking CONCORDIA courses on the same basis.
c.) Commencing on September 10, 1999, and continuing on the 10th day
of every month thereafter, CONCORDIA will supply EVC with a list of all students
who have applied to CONCORDIA, and/or registered, for courses through EVC, the
said list to include as available, each student's name, address, telephone
number, social security number, registration, financial aid loans and payment
status. EVC shall provide to CONCORDIA updated information relating to CONCORDIA
students each month.
d.) EVC shall require that each student registering for a course
offered through EVC, sign a waiver and release granting EVC access to said
student's records, said waiver and release form to be provided to CONCORDIA by
EVC, the format of which shall be subject to CONCORDIA's approval, which
approval shall not be unreasonably withheld.
e.) Within THIRTY (30) DAYS of the completion of each Fall, Spring,
and Summer Semester, CONCORDIA shall present to EVC, in writing, any requests
for adjustments or credits on monies already paid to EVC, which credits or
adjustments have been made necessary by an EVC student having dropped a course,
bounced a check, etc. EVC will credit any such valid adjustment to CONCORDIA's
account with one single adjustment in the month following such request by
CONCORDIA. NOTE: This is consistent with CONCORIDA's own reimbursement policy in
three equal installments over the three months immediately following such
request by CONCORDIA.
f.) Students registering for CONCORDIA courses through EVC who are
employed by an Institutional Employer customer of EVC which have a tuition
reimbursement policy for their employees shall be eligible for tuition deferment
from CONCORDIA until completion of the course, thereby enabling said students to
register for CONCORDIA courses through EVC without payment of tuition or fees up
front. Said students shall be required to sign a tuition payment guarantee
providing that they are fully responsible for 100% of all tuition in the event
that, for any reason, they are not reimbursed by their employer.
g.) Students registering for CONCORDIA courses offered through EVC who
are not employed by an Institutional Employer customer of EVC providing tuition
reimbursement to their employees shall be required to pay tuition and fees up
front when registering.
[*] Confidential Portion
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17. a.) CONCORDIA will provide up to four (4) dedicated rooms which will
accommodate teaching stations in order to facilitate IVC/DL courses marketed by
EVC emanating from its campus and will grant EVC, its agents and subcontractors,
reasonable access to said facilities as is required for proper installation,
operation, maintenance and repair of all equipment contemplated herein,
including but not limited to IVC/DL equipment. Said room shall be a minimum of
10 feet by 16 feet with adequate electrical, air conditioning, lighting, etc.,
and be otherwise suitable for use as a video conferencing teacher station. Said
rooms will be provided one at a time subject to registration demand.
18. CONCORDIA's Public Relations Department will provide reasonable
cooperation with EVC in promoting EVC/CONCORDIA Telecommute to College Program
and the IVC/DL courses offered through EVC.
19. CONCORDIA and EVC will, whenever possible, cooperate in applying for
and obtaining, any grants, awards, stipends, fellowships, etc., which are
mutually beneficial to the parties.
20. CONCORDIA shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL presentation.
21. CONCORDIA will assign at least one person who at all times will act as
liaison between CONCORDIA and EVC.
22. Term of Agreement
a.) The basic term of this agreement shall be FIVE (5) YEARS.
b.) The parties hereby acknowledge the necessity for allowing IVC/DL
students continuity and ongoing access to courses and programs, so long as there
is adequate registration.
c.) In light of the foregoing, the parties agree that commencing
August 1, 2000 and every August 1st thereafter, this agreement shall
automatically be extended for an additional period of ONE (1) YEAR, subject to
the conditions hereinafter contained.
d.) In the event that either party should desire not to automatically
extend this agreement, then and in that event, such party shall so notify the
other in writing, by Certified Mail, Return Receipt Requested, no later than
April 1 of any given year, after which the agreement will not be extended for an
additional ONE (1) YEAR, but will have only the FOUR (4) YEARS of the existing
term remaining.
23. CONCORDIA shall have the right to offer courses via IVC/DL on its own
to Institutional Employer and/or the employees of any Institutional Employer not
under contract with EVC. In such event, EVC shall not have any obligation to
market, provide any services or equipment, permit the use of EVC's equipment, or
incur any costs in connection with such offerings.
24. CONCORDIA agrees that, for the duration of this agreement and any
extensions hereof, as well as for a period of ONE (1) YEAR immediately following
any termination or expiration thereof, CONCORDIA will not independently video
conference or computer conference its college courses or programs under this
contract to EVC students, clients or their employees.
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25. The parties agree that disclosure of the terms of this agreement to
others will cause EVC irreparable damage to its business. The parties agree,
therefore, that CONCORDIA shall not disclose the terms of this agreement with
the prior written permission of EVC.
26. It is expressly agreed and understood that neither party shall be
liable for incidental, special or consequential damages for any breach or
violation of this agreement.
27. The foregoing constitutes the entire agreement between the parties, and
any other agreements or representations, whether verbal or written, if not
contained herein, are void, of no effect, and are not binding upon the parties.
28. No valid modification, amendment, or deletion may be made to this
agreement except in writing and executed by the parties in substantially the
same manner as this agreement.
29. Any and all notices required hereunder shall be by Certified Mail,
Return Receipt Requested, to each party's last known address and shall be deemed
given at the time of mailing.
30. If any portion of this agreement shall be found to be void,
voidable or unenforceable, it shall not effect the validity of the remainder of
the agreement.
31. This agreement shall be binding on the respective parties' heirs,
successors, and assigns.
32. The parties agree that any disputes or disagreements arising hereunder
or in connection herewith shall be settled by binding arbitration before the
American Arbitration Association at their offices located in White Plains, New
York, and that any judgment awarded thereunder may be entered in any court of
appropriate jurisdiction, and will have full force and effect therein.
33. This agreement shall be construed in accordance with, and governed
by, the laws of the State of New York.
In witness whereof the parties have hereunto set their hands and seal the
date first appearing above.
CONCORDIA COLLEGE
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Ph.D.
President
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xxxx X. XxXxxxx
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Xxxx X. XxXxxxx, Ph.D.
President
