EXHIBIT 10.50
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC.
AND GOLDEN GATE UNIVERSITY FOR THE OFFERING OF INTERACTIVE
VIDEO CONFERENCED COURSES
W I T N E S S E T H
AGREEMENT made this 3rd day of 2000, between GOLDEN GATE UNIVERSITY
with offices located at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (hereinafter
referred to as "Golden Gate"), and Educational Video Conferencing Inc.,
(hereinafter "EVC"), with offices located at 00 Xxxx Xxxxxx Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, Golden Gate is an institution of higher learning
accredited by the Western Association of Schools and Colleges 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, Golden Gate and EVC wish to enter into a mutually
beneficial agreement whereby EVC will provide access to Golden Gate courses to
such consumers,
NOW, THEREFORE in consideration of the mutual promises and
covenants contained herein, the parties hereby agree as follows:
1. a.) EVC shall have the right, for the duration of this
agreement and any renewal hereof, to offer all undergraduate
and graduate degree programs, courses, and continuing
education programs offered by Golden Gate via Interactive
Video Conferencing/Distance Learning (hereinafter "IVC/DL")
commencing with the Summer 2000 term. Subject to the terms set
forth herein in paragraphs 24 and 00, Xxxxxx Xxxx may continue
to offer courses and programs via interactive video under
agreements with third parties, including applicable successor
organizations, entered into prior to the initiation of this
agreement, which may continue at Golden Gate's sole
discretion.
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 Golden Gate and EVC agree otherwise in writing, the
minimum class size for the offering of an ITV/DL course shall
be twenty-five (25) 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 Golden Gate
courses to IVC/DL students. Students taking IVC/DL courses on
desktop computers must have modern computers capable of being
video enabled and function as an IVC/DL desktop system. The
parties acknowledge that it is the primary goal of EVC to
solicit students from corporations, governmental agencies, and
institutions (hereinafter "Institutional Employers") with
substantial tuition reimbursement and that EVC shall address
all student use equipment issues with the Institutional
Employers and their employees. In any event, Golden Gate shall
not be responsible for the cost of any equipment whatsoever at
Institutional Employer locations and/or students homes.
3. EVC is responsible for costs for marketing, advertising, and
promotion regarding EVC's offering of access to Golden Gate
courses. Unless otherwise agreed, Golden Gate will provide a
reasonable quantity of 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 Golden
Gate programs and courses offered through EVC.
4. Golden Gate shall provide and maintain rooms capable of
becoming teacher stations. This includes installing and
maintaining adequate telecommunication lines (ISDN, DSL, or
cable, or regular telephone lines) and electrical outlets.
Golden Gate 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
three (3) teaching stations in the rooms provided by Golden
Gate to videoconference 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. On
termination of this Agreement, all such equipment shall be
promptly removed by EVC at their expense.
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 Golden Gate, and all rights and
interests in said materials will remain the sole and exclusive
property of Golden Gate.
7. a.) EVC is responsible for the necessary maintenance, repair
and/or replacement of video conferencing equipment supplied to
Golden Gate 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.) Golden Gate will be responsible for the prompt repair
and/or replacement of interactive video conferencing equipment
located at Golden Gate, which may be damaged through improper
or unauthorized use.
d.) Golden Gate is responsible for the repayment to EVC of the
economic value of any EVC equipment, which is lost or stolen
while in Golden Gate's custody and control.
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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 Golden Gate courses. Such permission shall
not be unreasonably denied.
9. a.) EVC will provide faculty development to Golden Gate
faculty reasonably required for the offering of Golden Gate
courses through EVC.
b.) Golden Gate shall be responsible for obtaining the
services of and paying 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 Golden Gate courses. Golden Gate
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,
Golden Gate 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. Golden Gate hereby acknowledges that the IVC/DL programs
marketed by EVC are targeted toward the non-traditional
working adult student market and therefore agrees to offer
IVC/DL courses at dates and times appropriate to the target
market, including the hours of 8:00 a.m. to 11:00 p.m., seven
days per week, and at such other times requested by EVC's
Institutional Employers and their employees, subject to
enrollment. And, including but not limited to the three
academic semesters offered each year by Golden Gate, 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.) Golden Gate shall attempt to obtain and/or maintain
accreditation necessary to the offering of college programs
courses and credits under the applicable law. Should Golden
Gate 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 make all reasonable efforts to meet its
obligation under this agreement to provide high quality
delivery and access of Golden Gate's courses offered through
EVC. If at any time after the third anniversary date of the
execution of this agreement, EVC has failed to meet its
obligations under the contract, then and in that event only,
Golden Gate may:
i. provide EVC with written notice (the "Default
Notice") specifying the manner in which EVC is in
default under the contract;
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ii. EVC shall have six months from receipt of the
Default Notice to cure the default;
iii. if at the end of such period EVC has not cured the
default, then this agreement shall terminate at
the end of the then current term or if classes are
not in session, immediately. In that event, Golden
Gate shall have the right to take such action as
it believes necessary or prudent to complete the
delivery of all courses or programs to students
that theretofore had been in programs delivered by
EVC.
d.) Any dispute which may arise between the parties in
connection with whether the deficiencies identified in the
default notices are breaches of EVC's obligations under this
contract, or in the event that EVC contends that it has cured
such deficiencies as set forth in the default notice and
Golden Gate contends it has not, shall be arbitrated under the
commercial arbitration rules of the American Arbitration
Association. The award rendered therein shall be final and
binding between the parties and may be entered as a judgment
in any court of competent jurisdiction. The sole questions to
be presented to the arbitrator shall be whether those matters
identified as decencies in the Default Notice are in fact a
breach of this agreement and if they were, then were the
deficiencies cured. The arbitrator shall be chosen from a list
of persons who have substantial academic experience in the
distance learning field. Subject to the American Arbitration
Associations rules, the following time periods shall apply to
such a preceding:
i. the arbitrator shall be selected from a list of
supplied by the American Arbitration Association
within 15 days after the filing of the claim;
ii. the hearing shall be held within 30 days following
the date of the selection of the Arbitrator and
completed within 5 business days from the starting
date;
iii. the award shall be rendered within 15 days of the
completion of the completion of the hearing.
iv. If the arbitrator finds in favor of Golden Gate on
both issues (or on one issue if only one issue is
contested), then the remedy shall be the immediate
termination of this contract, unless a term is in
session, in which case the contract shall
terminate at the end if the then current term. If
the award is in favor of EVC then the remedy shall
be the continuation of the contract.
15. a.) Golden Gate 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.) Golden Gate 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 Golden Gate nor for return of any of the aforesaid
documents to Golden Gate.
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16. Fees
a.) Golden Gate shall pay to EVC, on the 10th day of each
month, [*] of the net tuition actually collected by
Golden Gate the preceding month, from any source whatever,
from or on behalf of any student registered for and attending
accredited college degree courses being offered through EVC,
except as noted below, said payments to commence the month
immediately following the collection of any such tuition by
Golden Gate. All checks for courses taken will be made out to
Golden Gate. Net tuition shall be defined as the difference
between the publicly marketed tuition price and any
scholarships or discounts provided by Golden Gate as a sales
discount for purposes of increasing enrollment and/or
affecting the student mix of any given class. Any and all
scholarships or discounts will be mutually agreed upon between
Golden Gate and EVC.
b.) For students registered for and attending accredited
college degree courses being offered through EVC, if the
aforementioned student was enrolled in any Golden Gate for
credit course during the twelve month period immediately
preceding this agreement, Golden Gate shall be required to pay
EVC 40% of the net tuition actually collected.
c.) EVC shall have the right, on a semi-annual basis, to
examine the books and records of Golden Gate, pertaining to
all students taking courses through EVC, in order to audit any
accounts due and owing the respective parties. Golden Gate
shall have the right to audit EVC accounts for students taking
Golden Gate courses on the same basis.
d.) Commencing on April 10, 2000, and continuing on the 10th
day of every month thereafter, Golden Gate will supply EVC
with a list of all students who have applied to Golden Gate,
and/or registered, for courses through EVC, the said list to
include as available, each student's name, address, telephone
number, social security number, registration, financial aid
loans and payment status. EVC shall provide to Golden Gate
updated information relating to Golden Gate students each
month.
e.) EVC shall require that each student registering for a
course offered through EVC, sign a waiver and release granting
EVC access to said student's records, said waiver and release
form to be provided to Golden Gate by EVC, the format of which
shall be subject to Golden Gate's approval, which approval
shall not be unreasonably withheld. It is understood by EVC
that Golden Gate will not consent to any requested release of
student records which is, or may be, in violation of any
Federal or State law or regulation relating to student record
access.
f.) Within THIRTY (30) DAYS of the completion of each Fall,
Spring, and Summer Semester, Golden Gate shall present to EVC,
in writing, any requests for adjustments or credits on moneys
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 Golden Gate's account in three equal
installments over the three months immediately following such
request by Golden Gate.
[*] Confidential Portion
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g.) Students registering for Golden Gate 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 Golden Gate until
completion of the course, thereby enabling said students to
register for Golden Gate completion of the course, thereby
enabling said students to register for Golden Gage 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 Golden Gate 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. a.) Golden Gate will provide a minimum of three(3__) dedicated
rooms which will accommodate teaching stations in order to
facilitate IVC/DL courses marketed by EVC emanating from its
campus and will grant EVC, its agents and subcontractors,
reasonable access to said facilities as is required for proper
installation, operation, maintenance and repair of all
equipment contemplated herein, including but not limited to
IVC/DL equipment. Said room shall be a minimum of 10 feet by
16 feet with adequate electrical, air conditioning, lighting,
etc., and be otherwise suitable for use as a video
conferencing teacher station. Said rooms will be provided one
at a time subject to registration demand.
b.) Rooms at Golden Gate equipped by EVC for IVC/DL may not be
used by the college for any class, function or other purpose,
without the prior written permission of EVC. Such permission
shall not be unreasonably withheld.
18. Golden Gate's Public Relations Department will provide
reasonable cooperation with EVC in promoting EVC/Golden Gate
Telecommute to College Program and the IVC/DL courses offered
through EVC.
19. Golden Gate 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. Golden Gate shall maintain academic control over all courses
and will be receptive to EVC input as to IVC/DL presentation.
21. Golden Gate will assign at least one person who at all times
will act as liaison between Golden Gate 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.
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c.) In light of the foregoing, the parties agree that
commencing on the 1st anniversary date this agreement, and
every anniversary date thereafter, this agreement shall
automatically be extended for an additional period of one
year, subject to the conditions hereinafter contained. For the
purpose of this paragraph, it is agreed that the "Anniversary
Date" shall be April 1.
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 the anniversary
date 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. Golden Gate shall have the right to offer courses via IVC/DL
on its own to Institutional Employer and/or the employees of
any Institutional Employer not under contract with EVC. In
such event, EVC shall not have any obligation to market,
provide any services or equipment, permit the use of EVC's
equipment, or incur any costs in connection with such
offerings.
24. Golden Gate 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, Golden Gate will not independently video conference
or computer conference its college courses or programs offered
under this contract to EVC students or institutional clients.
If this agreement is terminated pursuant to paragraph 14(c)
then , and in that event only, nothing within this contract
shall prohibit Golden Gate to deliver curriculum, coursework
and instruction in any and all means necessary, to include
using video conference or computer conference methodologies,
in order to allow a student to complete a course of study
which was initiated with Golden Gate and EVC while this
agreement was in effect. This paragraph is not intended to,
and shall not be interpreted as, permitting Golden Gate
University to directly target and market to persons on account
of their status as employees of EVCI institutional clients.
25. Asynchronous Programs
a.) Golden Gate and EVC agree that asynchronous programs are
not a part of this contract. Notwithstanding the above,
Golden Gate 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, Golden Gate will not
independently offer asynchronous college courses or
programs, to EVCI's students or institutional clients. A
list of EVCI's current institutional clients is attached
hereto as Exhibit A and made a part hereof. This paragraph
is not intended to, and shall not be interpreted as
permitting Golden Gate University to directly target and
market to persons on account of their status as employees
of EVCI institutional clients.
b.) During the term of this agreement, when EVC signs a
contract with an institutional employer, EVC shall advise
Golden Gate, in writing, of the institutional employer and
offer Golden Gate the opportunity to include its
asynchronous programs in the content EVC shall provide for
that employer. If Golden Gate wishes to participate it
shall notify EVC, in writing, of its intent. In that
event, the programs shall be incorporated into this
agreement.
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c.) If Golden Gate opts not to offer its asynchronous courses
to that employer, then Golden Gate may not independently
offer asynchronous college courses or programs, to that
employer 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,
26. Nothing in this agreement shall preclude Golden Gate from
offering or from providing: a.) non-EVC courses to non-EVC
students, non-EVC institutional clients or their employees;
b.) asynchronous programs currently offered by Golden Gate;
c.) synchronous programs currently offered by Golden Gate; d.)
live programs currently offered to corporate clients.
27. The parties agree that disclosure of the terms of this
agreement to others will cause EVC irreparable damage to its
business.. The parties agree that Golden Gate, without the
prior consent of EVC, shall not disclose the terms of this
agreement to any person, except as follows:
(i) to any employee of Golden Gate;
(ii) to any person or entity with whom Golden Gate
has a professional relationship and who has a
need to know of the terms of this agreement;
(iii) pursuant to a valid court order or subpoena
issued by a court or arbitral tribunal".
28. 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.
29. 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.
30. 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.
31. 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.
Notices for Golden Gate shall be sent to:
Golden Gate University
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx XX 00000
Attention::
Xxxx Xxxxxx
Vice President for Operations
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Notice for EVC shall be sent to
Educational Video Conferencing
00 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
Chief Executive Officer
32. 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.
33. This agreement shall be binding on the respective parties'
heirs, successors, and assigns. The parties agree that any
disputes or disagreements arising hereunder or in connection
herewith shall be mediated under the Commercial Mediation
rules of the American Arbitration Association In the event
that such dispute or disagreement cannot be successfully
settled through mediation, it shall be arbitrated under the
Commercial Arbitration Rules of the American Arbitration
Association then in effect, and any award rendered thereunder
may be entered in any court of appropriate jurisdiction, and
will have full force and effect therein.
34 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.
GOLDEN GATE UNIVERSITY
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Xxxxxx Xxxxxxxx, Ph.D.
President
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xxxx X. XxXxxxx
---------------------------
Xxxx X. XxXxxxx, Ph.D.
President
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