Exhibit 10.26
CONSORTIUM AGREEMENT
This Consortium Agreement made as of the ___th day of
______2005 (the "EFFECTIVE DATE") by and between Sonoma College, Inc., a
California corporation having its principal place of business at 0000 Xxxxx
Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 ("SONOMA") and Xxxxxx
North America, Inc., a Delaware corporation, having its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
("TSF-ITG" and together with Sonoma, the "PARTIES" and each individually, a
"PARTY").
WHEREAS, Sonoma has developed and created educational,
proprietary degree and/or certificate programs including The Associates of
Applied Science Degree in Homeland Response and Emergency Management (the "HREM
PROGRAM") which incorporate intellectual property and other proprietary rights
of such Sonoma, including without limitation Content (as defined herein); and
WHEREAS, Sonoma has developed proprietary technology to
deliver its general educational courses to students which consists of software
methodologies and other proprietary technologies, methods, plug-ins, trade
secrets and know-how (the "SONOMA PLATFORM"); and
WHEREAS, TSF-ITG is a leading training institute for
protective services training that has developed and created protective training
programs including the Executive/Dignitary Protection Training Program (the
"E/DPTP"); and
WHEREAS, the Parties wish to form a consortium (the
"CONSORTIUM") to: (i) provide the HREM Program to employees of TSF-ITG and
candidates (students pending enrollment) of the E/DPTP; and (ii) to offer the
E/DPTP as an externship option to those HREM Program students who qualify for
the E/DPTP.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements herein contained and other valuable consideration, the
receipt, adequacy and sufficiency of which is hereby acknowledged, the Parties
covenant and agree as follows:
I. DEFINITIONS.
"CONTENT" means text, pictures, sound, graphics, video,
physical demonstrations of know-how and show-how and data provided by a Party to
the other Party, as such materials may be modified from time to time.
"INTELLECTUAL PROPERTY" means any and all now known or
hereafter known tangible and intangible: (a) rights associated with works of
authorship throughout the universe, including but not limited to copyrights,
moral rights, and mask-works, (b) trademark, servicemark, trade dress and trade
name rights and similar rights, (c) trade secret rights, (d) patents, designs,
algorithms and other industrial property rights, and (e) all other intellectual
and industrial property rights (of every kind and nature throughout the universe
and however designated (including without limitation logos, "rental" rights and
rights to remuneration), whether arising by operation of law, contract, license,
or otherwise, and all registrations, initial applications,
renewals, extensions, continuations, divisions or reissues hereof now or
hereafter in force (including any rights in any of the foregoing).
II. HREM COURSE.
A. During the Term, Sonoma shall offer students of
the HREM Program the following options, provided, however, that nothing
contained herein shall be deemed to limit Sonoma's ability to offer students
other options as part of the HREM Program:
(i) a 100% online (instructor led) HREM
program; or
(ii) the online HREM program with the
E/DPTP externship (the "E/DPTP EXTERNSHIP") for those HREM Program students who
qualify pursuant to TSF-ITG admission requirements.
B. All students of the HREM Program are enrolled as
students of Sonoma and shall pay all tuition and fees directly to Sonoma.
C. Those students who successfully complete the HREM
Program without the E/DPTP Externship will receive 72 credits (24 courses).
D. Those students who successfully complete the HREM
Program with the E/DPTP Externship will receive 12 credits (equivalent of 4
courses) for the E/DPTP Externship and will receive an additional 60 credits (20
courses) online (instructor led).
E. All students of the HREM Program are required to
complete the first two semesters of the HREM Program before commencing the
E/DPTP Externship. Students may take the E/DPTP Externship during either
semester three or four of the HREM Program.
F. The Parties agree to use reasonable efforts to
begin the first E/DPTP Externships at a mutually agreed upon date as soon as
practical after the Effective Date.
III. RESPONSIBILITIES OF THE PARTIES.
A. During the Term, Sonoma shall:
(i) offer those applicants that Sonoma
deems, in its sole discretion, qualify for the HREM Program, the ability to
enroll in the HREM Program and attend class at Sonoma's online campus;
(ii) have the primary responsibility for
the administrative and academic oversight of every aspect of the HREM Program.
Sonoma shall perform enrollment and registration, financial aid administration,
record keeping, and grade reporting for all students enrolled through TSF-ITG;
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(iii) shall provide TSF-ITG with such
Sonoma Content and support as Sonoma reasonably deems necessary for TSF-ITG and
its employees to provide potential students with information about the HREM
Program and application process;
(iv) be responsible for storing all
student, faculty and administrative records at Sonoma's main campus;
(v) supply TSF-ITG with sources for all
textbooks that are required as part of the HREM Program;
(vi) provide online delivery of all
courses included in the HREM Program through the Sonoma Platform to students
enrolled in the HREM Program provided, however, that each student and not Sonoma
is responsible for providing his/her own computer;
(vii) at Sonoma's cost, hire qualified
instructors to teach all of the online courses offered in the HREM Program
(other than the E/DPTP Externship) provided, however, that the hiring or removal
of such instructors is at Sonoma's sole discretion; and
(viii) promote the E/DPTP Externship to
HREM Program candidates (students pending enrollment) and students.
B. During the Term, TSF-ITG shall:
(i) promote the HREM Program to
employees and candidates (students pending enrollment) in the E/DPTP;
(ii) promote the HREM Program to its
clients;
(iii) offer input specific to the HREM
Program curriculum;
(iv) offer input in the development of
future HREM degree curriculum;
(v) at TSF-ITG's cost hire qualified
instructors to teach the E/DPTP provided, however, that the hiring or removal of
such instructors is a TSF-ITG's sole discretion;
(vi) provide Sonoma with a copy of an
executed Release of Liability and Assumption of Risk Agreement for each HREM
Program student taking the E/DPTP Externship;
(vii) keep records of attendance and
satisfactory progress of all HREM Program students enrolled in the E/DPTP
Externship;
(viii) promptly notify Sonoma if an HREM
Program student stops attending E/DPTP classes or withdraws or is removed from
the E/DPTP Externship; and
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(ix) promptly notify Sonoma of any
changes made to the E/DPTP or its admissions requirements.
C. During the Term, Sonoma shall supply to TSF-ITG,
the following deliverables:
(i) HREM Program-application forms,
marketing material and such other information as Sonoma, in its sole discretion,
deems necessary
(ii) All curricula for courses to be
taught in the HREM Program classes;
D. During the Term, TSF-ITG shall supply to Sonoma
the E/DPTP application forms, marketing material and such other information or
deliverables as TSF-ITG, in its sole discretion, deems necessary.
E. Each party recognizes that time is of the essence
with respect to all aspects of this Agreement and the subject matter hereof.
IV. FINANCIAL AID.
Sonoma shall assist HREM students who are enrolled in the HREM
Program and meet the requirements of the federal aid programs, to apply for
federal financial aid, provided however, that nothing contained herein shall be
construed as a guarantee that any particular student will be eligible for
financial aid.
X. XXXXX OF LICENSE.
Subject to the terms and conditions of this Agreement, each
Party shall grant the other Party a limited, non-exclusive, non-transferable,
world-wide license ("LICENSE") to use any Content that it provides to the other
Party pursuant to this Agreement, solely for the purpose set forth in Section
III (the "INTENDED USE"). All fields of use not expressly included within the
Intended Use are specifically excluded from the scope of the License. In no
event will a Party remove or alter any proprietary notice of the other Party, or
any third party, contained on or in any of the Content without the prior written
consent of the Party that provided such Content. No Party shall use the
trademarks or services marks of the other Party without the written permission
of the Party whose trademark or service xxxx is being used.
VI. CONFIDENTIALITY.
A. Confidential Information. "CONFIDENTIAL
INFORMATION" shall include all information and data furnished by one Party to
the other, whether in oral, written, graphic or machine-readable form, including
without limitation, code (source and object) specifications, user, operations or
systems manuals, diagrams, graphs, models, sketches, technical data, flow
charts, research, business or financial information, plans, strategies,
forecasts, forecast assumptions, business practices, marketing information and
material, student and suppliers names and data, proprietary ideas, concepts,
know-how, methodologies and all other
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information related to the disclosing party's business. For purposes of this
Agreement, Confidential Information shall not include, and the obligations
provided hereunder shall not apply to, information that: (a) is now or
subsequently becomes generally available to the public through no fault of the
recipient; (b) recipient can demonstrate was rightfully in its possession prior
to disclosure by the other party; (c) is independently developed by the
recipient without the use of any Confidential Information provided by the other
party; (d) recipient rightfully obtained or obtains from a third party who has
the right, without obligation to the other party, to transfer or disclose such
information; or (e) is released or approved for release by the other party
without restriction.
B. Care and Protection. Each party shall protect the
other party's Confidential Information using at least the same standard of care
that applies to its own similar Confidential Information, but not less than a
reasonable standard of care.
C. Exceptions. Either party may disclose the other
party's Confidential Information as required by any order of any government
authority, or otherwise as required by law, or as necessary to establish and
enforce that party's rights under this Agreement. Before disclosing the other
party's Confidential Information for such purpose, reasonable effort must be
made to notify the other party of the circumstances, and the parties shall
cooperate with each other to obtain protection for the confidentiality thereof
to the extent available.
D. Term of Confidentiality. Each party's obligation
to protect the other party's Confidential Information shall expire five (5)
years after the date of each respective disclosure thereof.
E. Each party shall also comply with the requirements
of the Family Educational Rights Privacy Act ("FERPA"), which limits disclosure
from student educational records. TSF-ITG understands that FERPA may limit the
personally identifiable student information that may be disclosed to it by
Sonoma.
All of the provisions of this paragraph VI shall survive any
termination of this Agreement
VII. OWNERSHIP.
A. Each party acknowledges and agrees that it does
not have any claim, right, title or interest in or to the other party's
Intellectual Property except as explicitly provided herein. Furthermore, each
party acknowledges and agrees that it will use the other party's Intellectual
Property solely as expressly permitted under this Agreement and in a manner
consistent with the terms and conditions of this Agreement. Nothing contained in
this Agreement will give either party any right, title or interest in or to any
Intellectual Property of the other party, except for the limited rights
expressly granted hereunder. Each party acknowledges and agrees that the other
party (and its licensors, if applicable) has complete authority to control the
use of its Intellectual Property. Nothing in this Agreement contemplates the
joint development, joint works of authorship, or joint ownership of any
Intellectual Property, and this Agreement shall not be construed so as to effect
such joint development, joint works of authorship or joint ownership. If the
parties desire to engage in
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any joint development efforts during the Term, the ownership rights of such
developments will be established in a writing signed by an authorized member of
each party and amended to this Agreement. Without limiting the foregoing, any
Content provided by Sonoma to TSF-ITG pursuant to the Agreement ("SONOMA
CONTENT"), the Sonoma Platform and all associated Intellectual Property rights
are, and will remain, the sole and exclusive property of Sonoma or its
third-party licensors, and no license, right, title, interest in and/or to the
Sonoma Content or Sonoma Platform is granted to TSF-ITG except as set forth in
this Agreement. Likewise, any Content provided by TSF-ITG to Sonoma pursuant to
the Agreement ("TSF-ITG CONTENT") and all associated intellectual property
rights are, and will remain, the sole and exclusive property of TSF-ITG, and no
license, right, title, interest in and/or to the TSF-ITG Content is granted to
Sonoma except as set forth in this Agreement.
B. TSF-ITG agrees that any developments or changes
made at any time to the HREM Program or the HREM degree course as a result of
any input or other work product directly or indirectly produced, created,
developed or otherwise prepared by TSF-ITG (collectively the "WORK PRODUCT"),
shall at all times be and remain the sole and exclusive property of Sonoma.
TSF-ITG hereby irrevocably assign and transfer to Sonoma all worldwide rights,
title and interest in and to the Work Product including all associated
Intellectual Property rights therein. Consideration for such assignment is
hereby acknowledged. Sonoma may, at its discretion, affix such notices and take
such steps, as it deems reasonably appropriate to secure and perfect copyright
protection in the Work Product anywhere in the world. Upon request of Sonoma,
TSF-ITG shall execute any and all applications, assignments or other instruments
which Sonoma shall deem necessary or advisable in order to apply for and obtain
any Intellectual Property rights for the Work Product, or any part thereof, and
to assign to Sonoma all right, title and interest in and to the Work Product and
Intellectual Property.
All of the provisions of this paragraph VII shall survive any
termination of this Agreement.
VIII. FEES, PAYMENT AND RELATED MATTERS.
A. All tuition and all other fees payable by or on
behalf of a student in connection with an HREM Program (collectively, the
"TUITION FEES") shall be collected by Sonoma as set forth in the Program
Specification, as amended from time to time. The Parties agree that Sonoma shall
pay to TSF-ITG a fee for each HREM Program student enrolled in the E/DPTP
Externship (the "EXTERNSHIP COURSE FEE") in accordance with the Program
Specification, attached hereto.
B. Sonoma shall, in its sole discretion, determine
the amount of Tuition Fees and any other fees that are payable by a student
enrolled in the HREM Program. Sonoma may, in its sole discretion, amend the
Tuition Fee; provided, however, that it shall not change the Tuition Fee for any
academic semester that has already commenced, and that it shall provide the
other Party with sixty (60) days advance notice, in writing, prior to making any
such change.
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C. Notwithstanding Sonoma's ability to increase the
Tuition Fee pursuant to Section VIII B above, the Externship Course Fee shall
not be amended during the Term, except as mutually agreed in writing by the
Parties.
D. Sonoma shall keep such records as will enable the
Tuition Fees payable hereunder to be accurately determined by TSF-ITG. Such
records will be retained by Sonoma and made available to auditors or the
identified individual representative selected by the other Party for examination
at the request and at the expense of the other Party during reasonable business
hours at the offices of Sonoma as set forth in the Program Specification for a
period of at least five (5) years after the date of the transactions to which
the records relate. Any confidential information obtained by such auditors
regarding the business of Sonoma shall be held in strict confidence by such
auditors and the other Party, except as may be necessary to prosecute an action
to collect Fees. The Program shall reimburse the other Party for the costs of
such audit if the audit determines that the Fees due as stated in any such
certificate is understated by more than five percent (5%)
IX. INSURANCE.
A. TSF-ITG shall, at its sole cost and expense,
maintain in effect at all times during the performance of the Agreement all the
insurance specified below with insurers having a Best's rating of at least A++,
Class X, under forms of policy satisfactory to Sonoma:
(i) Liability insurance covering
general liability with minimum limits of liability of $1,000,000 per occurrence
and $4,000,000 per aggregate for personal injury and property damage. Sonoma
will be notified immediately if and when fifty percent (50%) of any aggregate
limit is eroded.
(ii) Full statutory coverage for
Workers' Compensation and Employers Liability with limits of at least $1,000,000
and Disability Insurance for all its employees as required by law. These
policies will contain waivers of the insurer's subrogation rights against Sonoma
where permitted by law.
B. Promptly upon execution hereof, TSF-ITG shall
submit to Sonoma a certificate of insurance evidencing that the required
insurance is in full force and effect. The certificate of insurance shall: (i)
evidence all the insurances required by this Agreement; (ii) be primary coverage
and not contributory; (iii) provide that the policy shall not be terminated,
non-renewed or materially changed without at least thirty (30) days prior
written notice to Sonoma; and (iv) for General Liability, include Sonoma as an
additional insured The purchase of such coverage and furnishing of such
certificates shall not limit TSF-ITG's obligations under this Agreement or in
any way modify TSF-ITG's agreement to indemnify Sonoma.
X. WARRANTIES AND COVENANTS.
A. Each Party does hereby represent and warrant that
this Agreement has been duly and validly authorized and executed by it and is
its valid and binding obligation. Each party further warrants that the execution
of this Agreement does not, and with the passage
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of time, will not, materially conflict with or constitute a breach under any
other agreement, judgment of instrument to which it is currently a party or by
which it is currently bound.
B. Each Party does hereby represent and warrant to
the other Party that: (i) it has the right to grant the license to use its
Content; (ii) to the best of its knowledge, use of its Content or any part
thereof will not infringe upon or violate the intellectual property, publicity
or privacy rights of any third party; and (iii) to its knowledge that its
Content will be in compliance with all applicable laws, and will not violate any
laws regarding unfair competition, anti-discrimination or false advertising.
C. TSF-ITG does hereby represent and warrant to
Sonoma that the E/DPTP will be in full compliance with: (i) generally accepted
federal guidelines for dignitary protection; (ii) industry best practice; and
(iii) SB-198 Injury and Illness Prevention Programs.
D. TSF-ITG does hereby represent and warrant to
Sonoma that as of the Effective Date, to its knowledge, there have been no
serious injuries or deaths in connection with the E/DPTP.
E. EXCEPT AS STATED HEREIN, THE SONOMA PLATFORM IS
LICENSED AS-IS. IT IS UNDERSTOOD THAT SONOMA IS NOT MAKING AND EXPRESSLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE USE OF ANY OTHER PRODUCT
MADE BY OR FOR TSF-ITG, EXCEPT THAT THE "SONOMA PLATFORM" AND "SONOMA CONTENT"
AS CONTAINED IN THE DELIVERABLES AND STANDING ALONE, WILL NOT INFRINGE THE
PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER PROPRIETARY PROPERTY RIGHTS OF ANY
THIRD PARTY.
F. EXCEPT AS STATED HEREIN, EACH PARTY EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
G. REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF
ITS ESSENTIAL PURPOSE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE CONTENT OR THE USE
OF THE SAME (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST INFORMATION, LOST
SAVINGS, LOST PROFITS OR BUSINESS INTERRUPTION), EVEN IF SUCH PARTY HAS BEEN
INFORMED, IS AWARE, OR SHOULD BE OR HAS BEEN AWARE, OF THE POSSIBILITY OF SUCH
DAMAGES.
All of the provisions of this paragraph X shall survive any
termination of this Agreement.
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XI. INDEMNIFICATION.
A. General. Each party agrees to indemnify and hold
harmless the other and its affiliates, and their respective officers, agents and
employees, from and against any and all loss, liability and expense (including
reasonable attorneys' fees) suffered or incurred (collectively "DAMAGES") by
reason of any third party claims, proceedings or suits based on or arising out
of: (i) breach of its representations and warranties hereunder; (ii) any claim
for infringement of any third party patent, copyright, trade secret, trademark
or other proprietary right. Indemnification shall apply provided that the party
seeking indemnification has given the indemnifying party prompt written notice
of any such claim, permits the indemnifying party to defend the claim and have
sole control over such defense, including appeals and all negotiations to affect
settlement, and gives the indemnifying party all available information and
assistance as is reasonably necessary for the defense; or (iii) any claim for
damage to property, personal injury or death that may occur whether caused by
any negligent or intentional act or omission of either Party, their governing
boards, officers, employees, representatives or otherwise.
B. Remedies. If either party believes that any
Intellectual Property licensed or provided under this Agreement has become, or
in the opinion of such party may become, the subject of a claim for
infringement, the party may, at its election and expense:
(i) procure for the other party the
right to continue using the same; or
(ii) replace or modify the same so that
it becomes non-infringing. The party shall elect one of the above remedies in
the event of a preliminary or permanent court order prohibiting use of the
Intellectual Property on a temporary or permanent basis. This Section states
each party's entire right and liability and sole and exclusive remedies with
regard to any intellectual property infringement.
All of the provisions of this paragraph XI shall survive any
termination of this Agreement.
XII. TERM AND TERMINATION.
A. Term. The term of this Agreement shall be for a
period of two (2) years from the Effective Date (the "INITIAL TERM"). Upon
expiration of the Initial Term, this Agreement shall renew for successive two
(2) year terms unless either Party shall give the other notice of its desire not
to so renew the term no less than ninety (90) days prior to the expiration of
the then-current two (2) year term (the Initial Term and each such renewal term,
collectively, the "TERM").
B. Termination for Cause By Either Party. Either
party may terminate this Agreement during the Term as follows:
(i) in the event of a breach by the
other Party of any of material term (including obligation to pay) of this
Agreement if the breaching Party fails to
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correct or cure the breach within thirty (30) days after receipt of written
notice stating the nature of the breach, the non-breaching Party shall continue
this Agreement until the end of the then current student term; or
(ii) the other Party is declared insolvent
or bankrupt, or makes an assignment of substantially all of its assets for the
benefit of creditors, or a receiver is appointed or any proceeding is demanded
by, for or against the other party under any provision of the federal Bankruptcy
Act or any amendment to that Act that is not terminated within thirty (30) days.
C. Effect of Termination for Cause. Upon Termination
for Cause, the terminated Party shall indemnify the other Party for any Damages
by reason arising out of such parties breach or insolvency.
D. Termination for Cause by Sonoma. Sonoma may
terminate this Agreement in the event Sonoma fails to maintain or otherwise
loses: (a) its Title IV funding; (b) its Higher Education Division of the
California Bureau of Private Post-Secondary Vocational Education approval; or
(c) its Accrediting Bureau of Health Education Schools accreditation; or (d) any
other federal or state licenses or authorizations in connection with the HREM
Program.
E. Effect of Expiration of the Term or Termination
without Cause. Upon termination or expiration of the Term for any reason other
than for Cause, all rights and obligations of the parties under this Agreement
shall be extinguished, except that: (a) all accrued payment obligations
hereunder shall survive such termination or expiration; and (b) any provisions
which must survive in order to give effect to their meaning, shall survive the
completion, expiration, termination or cancellation of this Agreement.
F. Within ten (10) days of the date of termination or
expiration of this Agreement, each Party shall return to the other Party any
Deliverables received by such Party pursuant to this Agreement or otherwise.
XIII. NON-COMPETE
A. TSF-ITG shall agree that for a period from the
Effective Date of this Agreement until three (3) year after the termination of
this Agreement, it will not directly or indirectly compete with Sonoma in the
Homeland Response and Emergency Management academic/education marketplace or
enter into any consortiums or affiliations with a third party in the Homeland
Response and Emergency Management academic/education marketplace provided
however that nothing contained in this paragraph shall prevent TSF-ITG from
continuing its existing arrangement with San Xxxxxxx Delta College.
B. TSF-ITG acknowledges and agrees that the
restrictive covenants set forth in this Section headed "Non-Compete" (the
"RESTRICTIVE COVENANTS") are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder
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of the Restrictive Covenants shall not thereby be affected and shall be given
full force and effect, without regard to the invalid or unenforceable parts.
C. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable for any
reason, such court shall have the power to modify such Restrictive Covenants or
any part thereof and, in its modified form, such Restrictive Covenants shall
then be valid and enforceable.
XIV. MARKETING.
A. Press Release. The Parties will jointly develop a
press release announcing this Agreement and the activities contemplated
hereunder which shall be issued at a time mutually determined by the Parties.
Prior to issuance of this initial press release, neither party shall issue any
press release on its own or make any public statement, written, oral, or
otherwise, regarding this Agreement and the activities contemplated hereunder,
without the other Party's prior written approval.
B. Marketing. Following issuance of the initial press
release, each party has the right to indicate publicly that it has entered into
this Agreement and may promote the other Party on its respective Web site and in
marketing materials, provided that each party will submit such materials to the
other Party for prior approval, which shall not be unreasonably withheld or
delayed. The parties may also jointly engage in public relations, trade shows,
trade associations and other marketing activities in support of the launch and
ongoing promotion of this Agreement as they mutually determine.
XV. MISCELLANEOUS.
A. Any assignment by the Licensee requires the
written consent of the Licensor. Any transfer by the Licensor of the rights
licensed in this Agreement shall be subject to all provisions of the present
Agreement and the Licensor shall so notify the Licensee.
B. The headings and captions used in this Agreement
are for convenience only and are not to be used in the interpretation of this
Agreement.
C. The failure of either Party to require performance
of any provision of this Agreement shall not affect the right to subsequently
require the performance of such or any other provision of this Agreement. The
waiver of either Party of a breach of any provision shall not be deemed to be a
waiver of any subsequent breach of that provision or any subsequent breach of
any other provision of this Agreement.
D. The Parties are independent contractors and engage
in the operation of their own respective businesses. Neither Party is the agent
or employee of the other Party for any purpose whatsoever. Nothing in this
Agreement shall be construed to establish a relationship of co-partners or joint
venturers between the two Parties. Neither Party has the authority to enter into
any contract or to assume any obligation for the other Party or to make any
warranties or representations on behalf of the other Party.
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E. If any provision of this Agreement is, or is
determined to be, invalid, illegal or unenforceable, all remaining provisions of
this Agreement shall nevertheless remain in full force and effect, and no
provision of this Agreement shall be deemed to be dependent upon any provision
so determined to be invalid, illegal or unenforceable unless otherwise expressly
provided for herein. Should any provision of this Agreement be found or held to
be invalid, illegal or unenforceable, in whole or in part, such provision shall
be deemed amended to render it enforceable in accordance with the spirit and
intent of this Agreement
F. This Agreement has been entered into, delivered
and is to be governed by, construed, interpreted and enforced in accordance with
the laws of the State of California (without giving reference to choice-of-law
provisions) from time to time in effect.
G. If a dispute arises out of or relates to this
Agreement and if said dispute cannot be settled through direct discussions, the
Parties agree to first endeavor to settle the dispute in an amicable manner by
mediation administered by the American Arbitration Association under its
commercial mediation rules of JAMS/Endispute ("JAMS"), with the following
exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; (b) each
party to the arbitration will pay its pro rata share of the expenses and fees of
the arbitrator, together with other expenses of the arbitration incurred or
approved by the arbitrator; and (c) arbitration may proceed in the absence of
any party if written notice (pursuant to the JAMS' rules and regulations) of the
proceedings has been given to such party. The parties agree to abide by all
decisions and awards rendered in such proceedings. Such decisions and awards
rendered by the arbitrator shall be final and conclusive and may be entered in
any court having jurisdiction thereof as a basis of judgment and of the issuance
of execution for its collection. The Parties hereby consent to the non-exclusive
jurisdiction of the courts of the States of California and New York or to any
Federal Court located within the States of California or New York for any action
arising out of, relating to, or in connection with, this Agreement, and to
service of process in any such action by registered mail, return receipt
requested, or by any other means provided by law. Notwithstanding anything
contained herein to the contrary, in the event of an arbitration proceeding or
litigation brought pursuant to the terms of this Agreement, the prevailing Party
shall be entitled to recover all costs of such proceeding or litigation
(including reasonable attorney fees) from the other Party.
H. This Agreement contains the entire and exclusive
agreement of the Parties with respect to its subject matter. This Agreement
supersedes any agreements and understandings, whether written or oral, entered
into by the Parties prior to its effective date and relating to its subject
matter. No modification or amendment of this Agreement shall be effective unless
it is stated in writing, specifically refers hereto and is executed on behalf of
each Party.
I. Any notices required to be given or delivered to
either party under the terms of this Agreement will be in writing and addressed
to the party at the address and telephone number indicated below or such other
address or telephone number as the party may designate, in writing, from time to
time. All notices will be deemed to have been given or delivered upon:
12
(i) personal delivery;
(ii) two (2) business days after deposit
with any return receipt express courier (prepaid); or
(iii) one (1) business day after
transmission and confirmed receipt by telecopier.
If to Sonoma:
0000 Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, COO
Fax: (000) 000-0000
If to TSF-ITG:
000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
J. Except for failures to make any payment when due,
neither Party hereto shall be liable to the other for failure or delay in
meeting any obligations hereunder as the result of strikes, lockouts, war, Acts
of God, fire, flood or acts of government, if beyond the control of such Party.
K. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the Parties hereto have set their hands by
their duly authorized representatives as of the day and year first above
written.
Sonoma College, Inc TSF-ITG
By: By:
---------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx Xxxxxxx
Title: Chief Operating Officer Title: Vice President
13
EXHIBIT A
PROGRAM SPECIFICATION
TUITION FEES
A. SONOMA COLLEGE'S ASSOCIATE OF APPLIED SCIENCE IN HOMELAND RESPONSE AND
EMERGENCY MANAGEMENT (HREM) REVENUE
Itemized below are the tuition and fee costs for the Associate of Applied
Science in HREM program:
TUITION AND FEES
SEMESTER ONE (6 COURSES)
I. Tuition due no later than first day of classes 3,100
Student Services Fee due with tuition ...................... 150
------
$3,250
SEMESTER TWO (6 COURSES)
II. Tuition due no later than first day of classes 3,100
Student Services Fee due with tuition .................. 150
------
$3,250
SEMESTER THREE (6 COURSES)
III. Tuition due no later than first day of classes 3,100
Student Services Fee due with tuition .................... 150
------
$3,250
SEMESTER FOUR (6 COURSES)
IV. Tuition due no later than first day of classes 3,100
Student Services Fee due with tuition ...................... 150
------
3,250
TOTAL
The total amount a student is obligated to pay Sonoma for the ASSOCIATE
OF APPLIED SCIENCE IN HOMELAND RESPONSE AND EMERGENCY MANAGEMENT program
course of study is:
One time Application Fee ............................... 100
Total Student Services Fees ............................ 600
Total tuition for four semesters and twenty-two courses
of instruction. ........................................ 12,400
-------
$13,100
A-1
B. THE XXXXXX FOUNDATION EXECUTIVE/DIGNITARY PROTECTION TRAINING PROGRAM
(E/DPTP) EXTERNSHIP COURSE FEES
The Xxxxxx Foundation E/DPTP consists of 540 hours of training for the
equivalence of 12 externship credits. The total program cost is $5,850.00
PAYMENT SCHEDULE
Sonoma is limited to collecting one semester's tuition and fees per semester.
Consequently, for the HREM Program, Sonoma is allowed to access $3,250.00 per
semester.
Sonoma College shall reimburse TSF-ITG for students enrolled in the E/DPTP
externship as follows:
A Sonoma shall pay to TSF-ITG $5,850.00 per HREM Program student enrolled in
the E/DPTP Externship. If a student chooses to withdraw from the E/DPTP
externship before completion of the entire E/DPTP Externship or is
otherwise removed from the E/DPTP Externship, then Sonoma will prorate the
payment of the $5,850.00 based on the number of days the student attended
the E/DPTP externship before withdrawal/removal.
B For those students enrolled in the E/DPTP Externship during the third
semester:
(i) The initial payment by Sonoma to TSF-ITG of $3,250.00 will be
on or before 30 days after the first day of the third semester.
(ii)The final payment of $2,600.00 will be on or before 30 days
after the first day of the fourth semester whether or not a student
continues onto the fourth semester.
C. For those students enrolled in the E/DPTP Externship during the fourth
semester Sonoma shall pay TSF-ITG $5,850.00 on or before the 30th day after
the first day of the fourth semester.
Sonoma College, Inc TSF-ITG
By: By:
---------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxx Name:
Title: Chief Operating Officer Title: President
A-2
