Exhibit 10.42
AGREEMENT BETWEEN
EDUCATIONAL VIDEO CONFERENCING, INC.
AND ST. JOHN'S UNIVERSITY
FOR THE OFFERING OF INTERACTIVE VIDEO CONFERENCED
AND INTERNET-BASED COURSES
W I T N E S S E T H
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AGREEMENT made this 24th day of September, 1999, between St. John's
University with offices located at 0000 Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000
(hereinafter referred to as "SJU"), and Educational Video Conferencing Inc.,
(hereinafter "EVC"), with offices located at 00 Xxxx Xxxxxx Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, SJU 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, SJU and EVC wish to enter into a mutually beneficial
agreement whereby EVC will provide access to SJU 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.) On a non-exlusive basis, EVC shall have the right, for the
duration of this agreement and any renewal hereof, to offer undergraduate and
graduate business courses and degree programs, for credit and non-credit,
offered by SJU through the College of Business Administration, via Interactive
Video Conferencing/Distance Learning (hereinafter "IVC/DL") and Internet-based
courses, commencing October 15,1999. The parties acknowledge that other courses
and degree programs may be added to this agreement as the parties agree uponfrom
time to time, on the terms agreed to herein.
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 SJU and EVC agree otherwise in writing, the minimum class
size for the offering of an ITV/DL course shall be twelve (12) 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 SJU
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. SJU shall not be responsible for the cost of any
equipment whatsoever at Institutional Employer Employer locations and/or
students homes.
3. EVC is responsible for costs for marketing, advertising, and promotion
regarding EVC's offering of access to SJU'S courses. Unless otherwise agreed,
SJU 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 SJU's programs
and courses offered through EVC.
4. SJU shall provide rooms capable of becoming teacher stations. This
includes installing and maintaining adequate telecommunications lines (ISDN, DSL
or cable and regular telephone lines) and electrical outlets. SJU 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 ten (10)
teaching stations in the rooms provided by SJU 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.
a.) EVC will be responsible to equip an SJU on-campus classroom with a
student IVC/DL system which classroom may be used to enroll SJU students in
order to attend EVC-SJU IVC/DL classes. EVC will be responsible fore all
telecommunications costs associated with on-campus EVC-SJU IVC/DL classes. EVC
will have the right ro remove the EVC IVC/DL system is on-campus classroom
enrollment in EVC-SJU IVC/DL classes in said video-enabled classroom(s) is less
than twnety (20) scheulded course regitstrations (SJRs) per academic semester.
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 SJU, and all rights and interests in said materials will
remain the sole and exclusive property of SJU.
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to SJU 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.) SJU will be responsible for the prompt repair and/or replacement
of interactive video conferencing equipment located at SJU, which may be damaged
through improper or unauthorized use.
d.) SJU is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in SJU custody
and control.
8. Neither party shall utilize the other's name or any associated names,
trademarks, copyrights, etc., without prior written consent, except with regard
to EVC's marketing, advertising and promotion of SJU courses. Such permission
shall not be unreasonably denied.
9. a.) EVC will provide faculty development to SJU faculty reasonably
required for the offering of SJU courses through EVC.
b.) SJU 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 SJU courses. SJU 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, SJU 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.
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. SJU 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., Eastern Standard Time,
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 SJU, i.e., Fall,
Spring and Summer.
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.) SJU 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 SJU 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.) SJU 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.
b.) SJU 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 SJU nor for return of any of the
aforesaid documents to SJU.
16. Fees: The fees set forth in Section 16, subdivisions a through d, are
mutually exclusive of each other
a.) SJU shall pay to EVC, on the 15th day of each month, [*]% PERCENT
([*]% for over FIve Hundred [500] students who contract through EVC for degree
programs), of the gross tuition actually collected by SJU the preceding month
from, or on behalf of, any student registered for and attending college courses
being offered by SJU through EVC, said payments to commence the month
immediately following the collection of any such tuition by SJU. All checks for
courses taken will be made out to SJU.
[*] Confidential Portions
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b.) SJU shall pay to EVC, on the 15th day of each month, [*]% PERCENT
of the gross tuition acutally collected by SJU the preceding month from, or on
bahalf of, any student registered for, and attending college courses being
offered by SJU through EVC who are employees of corporations that contract with
EVC through the direct efforts of SJU, said payments to commence the month
immediately following the collection of any such by SJU. SJU corporate customers
shall be defined as corporations who have executed an agreement with EVC through
the direct efforts of SJU. All checks for courses taken will be made out to SJU.
c.) SJU shall pay to EVC, on the 15th of each month, [*]% PERCENT of
the gross tuition actually collected by SJU the preceding month, from, or on
behalf of, any student registered for, and attending college courses being
offered by SJU through EVC's programs, who have been registered in accredited
college courses at SJU within the past two years, said payments to commence the
month immediately following the collection of any such tuition by SJU. All
checks for courses taken will be made out to SJU.
d.) SJU shall pay to EVC, on the 15th day of each month, [*]% PERCENT
of the gross tuition actually collected by SJU the preceding month, from, or on
behalf of, any student attending IVC/DL classes on the SJU campus(es), in SJU
classroom(s) video-enabled by EVC, said payments to commence the month
immediately following the collection of any such tuition by SJU. All checks for
courses taken will be made out to SJU.
e.) EVC shall have the right, on a semi-annual basis, to examine the
books and records of SJU, pertaining to all students taking courses through EVC,
in order to audit any accounts due and owing the respective parties. ST. JOHN'S
shall have the right to audit EVC accounts for students taking SJU courses on
the same basis.
f.) EVC shall require each student registering for a course offered
through EVC to sign a waiver and release form granting EVC access to said
student's records, including each student's name, address, telephone number,
social security number, registration, finanical aid loans and payment status.
Said waiver and release form to be provided to SJU by EVC, the format of which
shall be subject to SJU approval, which approval shall not be unreasonably
withheld.
g.) Upon receipt of the waiver referred to in subdivision f, and
commencing on November 15, 1999, and continuing on the 15th of every month
thereafter, SJU will supply EVC with a list of all students who have registered
at SJU for courses through EVC, containing the student information set forth in
subdivision f. EVC shall provide to SJU, updated information relating to SJU
students each month.
h.) On the First (1st) day of each month, commencing with the month
SJU begins payments to EVC, SJU 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 ot SJU's account
within THIRTY (30) days of receipt.
i.) Students registering for SJU 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 SJU
until completion of the course, thereby enabling said students to register for
SJU 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. EVC agrees that SJU will make
the required payments on such deferred tuition payments by the 10th of the month
following receipt of said deferred tuition payments.
[*] Confidential Portions
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j.) Students registering for SJU 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. SJU will pay to EVC the rate indicated in the
appropriate subdivision of paragraph 16 of such students.
17. SJU will provide 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.
a.) Rooms at SJU equipped by EVC for IVC/DL may not be used by the
college for any meeting, class, function or other purpose which does not
interfere with EVC program schedules and which are not revenue producing
activities, without the prior written permission of EVC.
18. SJU's Public Relations Department will provide reasonable cooperation
with EVC in promoting EVC/SJU Telecommute to College Program and the IVC/DL
courses offered through EVC.
19. SJU 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. SJU shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL presentation.
21. SJU will assign at least one person who at all times will act as
liaison between SJU 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
October 15, 2000 and every October 15th 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
August 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. SJU 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.
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24. SJU 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, SJU will not independently video conference
or computer conference its college courses or programs under this contract to
EVC students, clients or their employees.
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 SJU 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 New York, 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.
ST. JOHN'S UNIVERSITY
By: /s/ Xxxxxxx X. Xxxxxx, Ph.D
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Xxxxxxx Xxxxxx, Interim Xxxxxxx
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xxxx X. XxXxxxx, Ph.D
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Xx. Xxxx X. XxXxxxx, President
