Exhibit 10.41
AGREEMENT
BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC.
AND
TOURO COLLEGE
FOR THE OFFERING OF
INTERACTIVE VIDEO CONFERENCED
AND
COMPUTER CONFERENCED COURSES
W I T N E S S E T H
AGREEMENT made this 1st day of September, 1999, between TOURO College and
Touro University College and TOURO University International (hereinafter TOURO),
with offices located at 0000 Xxxxxx X, Xxxxxxxx, Xxx Xxxx 00000, and Educational
Video Conferencing Inc., (hereinafter "EVC"), with offices located at 00 Xxxx
Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, TOURO 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, TOURO and EVC wish to enter into a mutually beneficial agreement
whereby EVC will provide access to TOURO 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.) During the term of this Agreement and any renewal thereof, EVC shall
have the right, to solicit students from corporations, governmental agencies and
institutions (hereinafter "Institutional Employers") and the public at large to
apply for admission into all accredited and non-accredited college courses,
degree programs, and non-degree courses and programs offered by TOURO, including
but not limited to the professional schools which are the Law School, School of
Health Sciences and College of Osteopathic Medicine via IVC/DL and CC/DL
commencing on September 4, 1999. TOURO will accept non-matriculated students
into undergraduate and graduate courses under this Agreement provided that the
acceptance of such students are not inconsistent with the relevant accrediting
agencies and governmental authorities. The right provided for herein is not an
exclusive right.
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.) For the purpose of this Agreement, CC/DL shall be defined as Web-based
Computer Conferencing.
d.) Unless TOURO 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 TOURO
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. Students taking CC/DL courses must have a modern
computer, a modem, and Internet access. The parties acknowledge that it is the
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, TOURO shall not
be responsible for the cost of any equipment whatsoever at Institutional
Employer locations and/or students homes.
3. a.) EVC is responsible for all of the costs incurred in connection with
its marketing, advertising and promotional activities regarding the courses
offered by TOURO to IVC/DL students. TOURO shall provide brochures, catalogues,
course schedules, program and course descriptions and posters, etc. to EVC for
distribution to EVC's Institutional Employers. These promotional materials shall
be used by EVC only for the purpose of promoting the TOURO courses and programs
marketed, advertised and promoted by EVC. The number and amount of such
promotional materials to be provided to EVC shall be mutually agreed to by the
parties on an annual basis and the costs for such materials shall be TOURO's
responsibility. The content and design of such materials shall be decided upon
by TOURO.
b.) During the term of this Agreement and any renewal thereof, EVC's
marketing, with advertising and promotional activities shall at all times be in
compliance will all federal, state and local laws, statutes, rules and
regulations, as well as all accrediting agencies.
4. EVC will be responsible for installing and maintaining adequate
telephone lines for teaching stations and for the costs of providing
telecommunication signal transport for video conferenced courses from teacher
stations to the MCU Bridge. EVC assumes responsibility or costs for obtaining,
providing, or paying telecommunication signal transport for video conferenced
courses from the MCU Bridge to corporate locations and/or students' home.
5.a.) EVC will be responsible for installing and maintaining up to ten (10)
video conferencing teaching stations in the rooms provided by TOURO to video
conference IVC/DL courses offered through EVC, subject to enrollment. All video
conferencing teaching stations installed and paid for by EVC shall remain the
exclusive property of EVC. TOURO rooms for video conferencing teacher stations
do not have to be dedicated space.
b.) Subject to mutual agreement, EVC will provide TOURO the opportunity to
offer asynchronistic web-Based Computer Conferencing/Distance Learning (CC/DL)
to EVC clients. EVC assumes no responsibility or costs for obtaining, providing
or paying for teacher station equipment specifically for CC/DL courses.
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 TOURO, and all rights and interests in said materials
will remain the sole and exclusive property of TOURO.
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7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to TOURO for IVC/DL
courses.
b.) EVC will provide prompt service for repair or replacement of defective
interactive video conferencing equipment and software as necessary.
c.) TOURO will be responsible for the prompt repair and/or replacement of
interactive video conferencing equipment located at TOURO, which may be damaged
through improper or unauthorized use. TOURO instructors will operate the video
conferencing equipment.
d.) TOURO is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in TOURO's
custody and control. Both TOURO and EVC will have all appropriate insurances and
will name each other as additional insured under said policies.
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. The use of such names should only be for the
purpose of effectuating the terms of this Agreement, and neither party shall
have the right to assign such right.
9. a.) EVC will provide faculty development to TOURO faculty reasonably
required for the offering of TOURO courses through EVC. Faculty development
specifically relates to the use of technology. TOURO retains sole discretion
with respect to faculty development in the teaching model and application of
technology to that model.
b.) TOURO 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.
10. EVC is solely responsible to provide site locations for IVC/DL students
to participate in TOURO courses. TOURO 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, TOURO agrees to consult EVC as to course
content, presentation and delivery of IVC/DL courses consistent with required
academic standards.
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. TOURO hereby acknowledges that the IVC/DL and CC/DL programs marketed
by EVC are targeted toward the non-traditional working adult student market and
therefore agrees to use its best efforts to (a) offer IVC/DL courses at dates
and times appropriate to the target market. Specifically, between the hours of
8:00 a.m. to 11:00 p.m., Mondays, Tuesdays, Wednesdays, Thursdays, and Sundays;
on Fridays, from 8:00 a.m. to 2:00 p.m., and no classes will be scheduled on
Saturdays or Jewish religious holidays; and, (b) to offer the CC/DL courses
commencing at times reasonably requested by EVC's Institutional Employers and
their employees, subject to enrollment. TOURO will offer courses during the
fall, spring and summer semesters.
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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, which may lead to a degree or certificate.
b.) TOURO 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
TOURO 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.
c.) EVC shall be in compliance with all federal, state and local laws,
statutes, rules and regulations, as well as all accrediting agencies. Should EVC
be in violation of any provision of this Agreement or any renewal thereof,
including without limitation, the terms of this paragraph 14 (c), TOURO shall
have the right to terminate this Agreement at the end of the semester (if
applicable) or immediately, if no semester is underway. Provision should be made
upon termination for the return of TOURO's promotional material as well as EVC's
equipment.
15. Administrative Functions
a.) TOURO shall be responsible for all of its own administrative functions
(admissions, academic advising, registration, financial aid, etc.) associated
with the offering of IVC/DL and CC/DL courses through EVC.
16. Fees
a.) TOURO shall pay to EVC, on the 10th day of each month, [*]PERCENT [*]%
of the gross tuition actually collected by TOURO the preceding month,
from any source whatever, from or on behalf of any student attending
courses being offered by TOURO through EVC, said payments to commence
the month immediately following the collection of any such tuition by
TOURO. All checks for courses taken will be made out to TOURO College.
b.) TOURO shall pay to EVC [*]PERCENT [*]% of the gross tuition actually
collected by TOURO for corporations or organizations that have signed
a contract with EVC through TOURO's direct introduction.
c.) If TOURO agrees to go on site to recruit and enroll students, whether
the contract with EVC was initiated by EVC's or TOURO's direct
efforts, TOURO will pay EVC [*] PERCENT [*]% of the gross tuition
actually collected by TOURO the preceding month. In no event will EVC
receive less than [*] PERCENT [*]% of the gross tuition.
d.) EVC shall have the right, on a semi-annual basis, to examine the books
and records of TOURO, pertaining to all students taking courses
through EVC, in order to audit any accounts due and owing the
respective parties. TOURO shall have the right to audit EVC accounts
for students taking TOURO courses on the same basis.
e.) TOURO will provide EVC with a list of all students who come within the
ambit of this Agreement and shall allow the review of its records
which are not subject to federal and state restrictions.
[*] Confidential Portions
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f.) Within THIRTY (30) DAYS of the completion of each fall and spring
Semester, TOURO 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 TOURO's account in three (3) equal
installments over the three(3) months immediately following such request by
TOURO.
g.) Students registering for TOURO courses through EVC who are employed by
an Institutional Employer customer of EVC which has a tuition reimbursement
policy for its employees shall be eligible for tuition deferment from TOURO
until completion of the course, thereby enabling said students to register for
TOURO 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.
h.) Students registering for TOURO 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.
17. TOURO will provide up to ten (10) 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 and telephone lines. Said rooms shall be a minimum
of 10 feet by 12 feet with adequate electrical, air conditioning, lighting,
etc., and be otherwise suitable for use as video conferencing teacher stations.
Said rooms will be provided one at a time subject to registration demand.
18. TOURO's Public Relations Department will provide reasonable cooperation
with EVC in promoting EVC/TOURO Telecommute to College Programs and the IVC/DL
and CC/DL course offerings offered through EVC.
19. TOURO and EVC will, whenever possible, cooperate in applying for and
obtaining, any grants, awards, stipends, fellowships, etc., which are mutually
beneficial to the parties. TOURO reserves the right to decline seeking any
specific grant if it conflicts with TOURO's programs or objectives.
20. TOURO shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL and CC/DL presentation. TOURO shall consult
with EVC regarding the presentation of TOURO's courses over IVC/DL and CC/DL.
21. TOURO will assign at least one person who at all times will act as
liaison between TOURO 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 June 30,
2000 and every June 30th thereafter, this Agreement shall automatically be
extended for an additional period of ONE (1) YEAR, subject to the conditions
hereinafter contained.
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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
June 30th 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. TOURO shall have the right to offer courses via IVC/DL and CC/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. a.) TOURO 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, TOURO will not independently
contract with corporations or organizations under contract with EVC and served
by TOURO.
b.) TOURO retains the right to do mass advertising and marketing for its
own distance learning programs, and it is understood by EVC that some of the
employees of corporations or organizations under contract with EVC may
separately respond to these solicitations and attend TOURO College's independent
distance learning programs or on-campus programs.
25. Damages Limitations
a.) 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. To the extent that this clause seeks to limit EVC's
liability for the return of tuition or other damages incurred by TOURO by reason
of TOURO's inability to perform arising out of EVC's breach, the limitation on
damages does not apply.
b.) The performance of this Agreement by TOURO is subject to TOURO
obtaining all requisite approvals and consents from all appropriate accrediting
agencies, including, without limitation, the New York State Department of
Education and the California Department of Education.
26. 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.
27. 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.
28. 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.
29. 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.
30. This Agreement shall be binding on the respective parties' heirs,
successors, and assigns.
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31. 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.
32. 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.
TOURO COLLEGE
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
Vice-President
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xx. Xxxx X. XxXxxxx
--------------------------------
Xx. Xxxx X. XxXxxxx
President
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