Agreement Between University of Miami Division of Continuing and International Education And Vemics
Exhibit
10.16
CONTROL#
12920
DEC
13 2006
Agreement
Between
University
of Miami
Division
of Continuing and International Education
And
Vemics
This
agreement entered into this 12th of December, 2006 by and between the University
of Miami ("UM"), whose address is 0000 Xxxxxxx Xxxxxx, Xxxx 000, Xxxxx Xxxxxx,
Xxxxxxx 00000, on behalf of its Division of Continuing and International
Education ("DCIE") and VEMICS ("Vemics"), whose address is 000 Xxxxxx Xxxxxxx
Xxxxx, Xxxxxx, XX 00000.
In
consideration for the mutual promises, terms, covenants and conditions set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties agree
as follows:
Responsibilities of
Parties:
DCIE
shall :
|
|
1.
|
Identify
a DCIE representative who shall be the main contact with VEMICS for
purposes of this agreement and who will be able to determine the
suitability of potential educational projects proposed by VEMICS and/or
"market" as agreed upon or
determined.
|
|
|
2.
|
Develop
curriculum for projects negotiated between representatives of VEMICS and
DCIE; the first project will be offering of a 3-week English program to
select corporate clients (agreements) in
Russia.
|
|
|
3.
|
Provide,
if appropriate, all materials for educational
programs.
|
|
|
4.
|
Be
solely responsible for the hiring, supervision, and evaluation of
instructors for all projects.
|
|
|
5.
|
Provide
appropriate collateral material copy in English when needed for
international marketing
efforts.
|
|
|
6.
|
Be
responsible for registration and collection of fees from the corporate or
individual client that has a foreign currency bank account. If the client
does not have a foreign account, UM will authorize DLT (Distance
Technology and Learning) in Russia to collect fees subject to an 18%
VAT.
|
Vemics
shall :
|
|
1.
|
Provide
Vemics LiveAccess hosted service solution as a platform (defined in
Appendix A) for products to be offered by
DCIE
|
|
|
2.
|
Be
responsible for marketing and administrative functions in selected global
regions with prior written approval of DCIE of all marketing materials.
Initially, this agreement will encompass Russia and the CIS only.
Representation in other regions of the world will be determined through
future discussions.
|
|
|
3.
|
Provide
the required number of virtual seats as needed by
UM
|
|
|
4.
|
Provide
technical support and, if necessary, online
training
|
|
|
5.
|
Provide
full Help Desk and Customer Service Support (M-F, 8 am to 8 pm
EST)
|
|
|
6.
|
Provide
unlimited free download rights to Vemics LiveAccess client software with
availability 24/7
|
|
|
7.
|
Offer
at no additional cost any software upgrades that are or become
available;
|
|
|
8.
|
Provide
total support for the Vemics LiveAccess Total Managed Event
Service
|
|
|
9.
|
Make
available dedicated servers for UM programs, seminars, and
courses
|
| 10. | Customize and brand Vemics interface used in UM programs with UM look and feel with written approval from UM prior to use. | |
|
11.
|
Identify
a Vemics representative who shall be the main contact to UM for the
purpose of this agreement.
|
Financial
Considerations:
|
|
1.
|
DCIE
will provide a $100,000 payment as the fee. The immediate services for
delivery will include:
|
|
|
a.
|
Dedicating
servers to DCIE;
|
|
|
b.
|
Customizing
and branding for the UM look and feel as set forth
above
|
|
|
c.
|
Providing
instructional design consulting and training for professors and
technical/help desk training to appropriate
staff.
|
|
|
2.
|
The
$100,000 will be paid as follows: $60,000 on signing of contract; $20,000
on delivery of both 1.b. and 1.c.; $20,000 on commencement of program
approved by DCIE.
|
|
|
3.
|
DCIE
will retain the initial $200,000 in gross revenue generated from the
program. Vemics shall provide monthly reports of gross revenue as
appropriate in a format approved by
DC1E.
|
|
|
4.
|
After
the initial $200,000 in generated gross revenue will be split 60% to DCIE
and 40% to Vemics. Failure to generate $200,000 of gross revenue will
require Vemics to return $50,000 of initial fee to DCIE if no further
programs are planned or DCIE cancels this agreement. In the event that
additional programs are agreed upon, tuition will go to DCIE until the
$200,000 total is attained. Tuition and/or fees for every program using
Vemics LiveAccess solution will be discussed with Vemics, but final
tuition/fees will be the sole responsibility of
DCIE.
|
|
|
5.
|
Gross
revenue shall include all tuition and payments received, reduced by any
VAT, refunds or uncollected
revenue
|
|
|
6.
|
DCIE
will be responsible for the registration of students and the collection of
fees when applicable.
|
|
|
7.
|
If
the VAT tax (18%) must be collected, the additional cost will be split
60/40 between DCIE and Vemics. The obligation to pay VAT tax
shall be the sole responsibility of
Vemics.
|
1
Miscellaneous
Indemnification
Each
party to this Agreement agrees to indemnify the other, its trustees, officers,
agents, servants and employees against liability for all claims, demands,
damages, actions, or causes of action of whatever type of nature (including
costs and expenses incurred) arising out of the gross negligence or willful
misconduct of such party in connection with or related to this
Agreement.
Vemics
shall indemnify, defend and hold harmless UM, DCIE and its trustees, officers,
employees and students from and against any claims, liabilities, costs including
attorneys' fees arising from 1) any claim for infringement of any intellectual
property rights or trade secrets brought against UM, DC1E, its trustees,
officers, employees or students and/or 2) any claim brought by any employee,
subcontractor or agent of Vemics against UM, DCIE, its trustees, officers,
employees or students.
UM,
DCIE shall indemnify, defend and hold harmless Vemics and its directors,
officers, employees and students from and against any claims, liabilities, costs
including attorneys' fees arising from 1) any claim for infringement of any
intellectual property rights or trade secrets brought against Vemics, its
directors, officers, employees or students only to the extent that such
infringement is caused solely for products developed by UM, DOE and/or 2) any
claim brought by any employee, subcontractor or agent of UM, DCIE against
Vemics, its directors, officers, employees or students.
Use of
Name
Vemics
shall not use the University's name or logo in any manner whatsoever unless and
until the same shall have first been submitted and approved by the Vice
President of DCIE or its designee in writing.
DCIE
shall not use the Vemics name or logo in any manner whatsoever unless and until
the same shall have first been submitted and approved by the CEO of Vemics or
his designee in writing.
Assignment
Neither
party will assign this Agreement or any of its rights or obligations hereunder
without the prior written consent of the other party. This Agreement will be
binding upon, enforceable by, and inure to the benefit of the parties and their
respective successors and permitted assignees.
Confidentiality
Each
party agrees that during the term of this Agreement and for two (2) years
thereafter, it shall not disclose to any third party the terms or conditions of
this Agreement or any Confidential Information of the other party, except as
expressly authorized herein. The term "Confidential Information" shall mean all
non-public information that either party designates as being confidential, or
which, under the circumstances of disclosure ought to be treated as
confidential. "Confidential Information" shall not include information that was
known to the receiving party prior to the disclosing party's disclosure to the
receiving party or information that becomes publicly available through no fault
of the receiving party.
Representations
and Warranties
|
|
1.
|
Each
party represents and warrants
that:
|
|
|
a.
|
It
has the power and authority to enter into this Agreement and
is
|
|
|
permitted
by applicable law and regulations to enter into this
Agreement;
|
|
|
b.
|
It
will comply with all applicable laws in the performance of
its
|
|
|
obligations
under this Agreement;
|
|
|
c.
|
It
is not subject to any other agreement that would conflict with its ability
to perform its obligations under this
Agreement;
|
|
|
d.
|
It
has all right, title and interest in or is duly licensed to use all the
technology, know-how and software used to develop the course(s) under this
Agreement.
|
Insurance
Each
party agrees to maintain, during the term of this Agreement, general liability
insurance with limits no less than one million dollars ($1,000,000) per
occurrence and two million dollars ($2,000,000) in the aggregate as well as
worker's compensation insurance in amounts required by statute. Each party shall
furnish a certificate of insurance evidencing the foregoing insurance to the
other party within ten (10) days of execution of this
Agreement.
Independent
Contractors
The
parties expressly intend that both shall be deemed independent contractors under
this Agreement, that they have no relationship other than the one created by
this Agreement, and that the parties shall not receive any benefits other than
those expressly provided herein. The parties further intend that no agent,
servant, contractor, or employee of one party shall be deemed to be an agent,
servant, contractor, or employee of the other party.
2
Exclusivity
Vemics
agrees that it will not solicit other universities, colleges, post-secondary
educational institutions or proprietary schools for those courses or programs
that could be offered by the DCIE or the University of Miami. If Vemics would
like to offer a program from a competing institution, DC1E will be given the
right of first refusal.
General
Procedures and Terms:
|
|
1.
|
This
Agreement shall be in effect for three (3) years commencing December 1,
2006 and ending November 30, 2009. The Agreement may be terminated by
either party upon ninety (90) days written notice to the other party with
the following conditions:
|
|
|
a.
|
Any
student currently enrolled at the time may be allowed to complete the
course/ certificate program in which they are
registered;
|
|
|
b.
|
Any
student who enrolls during the 90 days may register providing the
course/program in which enrolling will occur within 90 days following the
end date of the 90-day notice
period.
|
|
|
c.
|
Any
termination within the first six months shall require Vemics to return all
of the initial fee ($100,000 and any other documented costs) to DCIE, less
tuitions earned, and approved costs incurred and applied as stated
above.
|
|
|
2.
|
Force
Majeure: For a reasonable time period, each party will be excused from
delay or failure in performance due to causes beyond such party's
reasonable control including without limitation, acts of God, government
action, regulations, riots, wars, floods, or
earthquakes.
|
|
|
3.
|
Breach
or Default: The non-breaching, non-defaulting party shall reserve all
legal rights and remedies available for a breach or default provided that
the nonbreaching/defaulting party has provided written notice and an
opportunity to cure within thirty (30) days from receipt of the notice to
the breaching/defaulting party.
|
|
|
4.
|
Any
notices given under this Agreement shall be delivered via certified or
registered mail, postage prepaid and return receipt requested and shall be
deemed to have been given on the day when received by the party to whom
the notice is given.
|
Entire
Agreement
This
Agreement contains the entire agreement between the parties with respect to the
subject matter thereof.
Waiver
No
waiver or modification of any of the provisions of this Agreement shall be valid
unless set forth in writing and signed by authorized representatives of each
party.
Governing
Law
This
Agreement shall be construed in accordance with the laws of the State of Florida
and venue for any action arising from this Agreement shall be in the courts of
Miami-Dade County, Florida.
In
Witness Whereof, Vemics and DCIE agree to the terms and conditions set forth in
this Agreement.
| VEMICS | University of Miami |
Xxxx X. Xxxx,
Vice President
|
BY:  |
BY:  |
University of
Miami
|
| Xxxx Xxxxx | Xxxx X. Xxxx, Vice President |
Business
Services
|
| CEO, Vemics, Inc | Business Services |
0000 Xxxxxxx
Xxxxxx, Xxxx 000
|
|
Xxxxx Xxxxxx, XX
00000
|
||
|
Phone:
305/000-0000
|
||
|
Fax:
305/000-0000
|
||
|
Email: xxxxx@xxxxx.xxx
|
Date: December 13,
2006 Date: 12/13/06
3
Appendix
A
Vemics/E1Desktop
will provide a cost-effective Vemics LiveAccess hosted total service solution
for various distance learning applications and assistance with marketing,
enrollment and administrative functions overseas and domestically that
replicates all the dynamics present in a live, face-to-face classroom using the
public Internet with:
|
|
•
|
Vemics
LiveAccess Solution (capability for up to 90 live, fully interactive
sites)
|
|
|
•
|
Up
to 9 real-time, full motion videos (broadcast quality up to 30 frames per
second)
|
|
|
•
|
Wide-band
voice-over-internet (VOIP)
audio
|
|
|
•
|
Full
suite of collaboration tools
|
|
|
o
|
Present-a-document
|
|
|
o
|
Tour
the web
|
|
|
o
|
Videoconference
mode
|
|
|
o
|
Live
application share (windows based software or
Internet)
|
|
|
o
|
Electronic
whiteboard
|
|
|
o
|
Invite
IP-based videoconference system
feature
|
|
|
o
|
Use
of multimedia
|
|
|
•
|
Provide
a cost-effective live, fully interactive online meeting service that
replicates all the dynamics present in a face-to-face meeting for up to 90
end points without leaving office, home, hotel room, school,
etc.
|
|
|
•
|
No
proprietary equipment or additional bridging services required to buy or
maintain as with traditional videoconference
systems
|
|
|
•
|
Adds
the flexibility of real time face-to-face experience for online sessions
with integrated high quality video and VOIP audio, converged with a full
suite of collaboration tools
|
|
|
•
|
One-way
streaming of the audio/video/content to an unlimited number of sites with
internet access. Individuals can use any standard broadband connection to
the internet.
|
|
|
•
|
Plus
Record and provide web access to view the archived version of the meeting
or class which can be made available for scheduled or unscheduled amounts
of time
|
|
|
•
|
Fully
managed event service that can include live site set-up, email invitations
with audio/video postcards, presenter training, technical and event
monitoring, email reminders and help
desk
|
4
