Exhibit 10.7(a)
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC. AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
FOR THE OFFERING OF INTERACTIVE TELEVISED COURSES
AND DISTANCE LEARNING PROGRAMS
WITNESSETH
This AGREEMENT is executed this 30th day of June 1999, (and is effective as of
the 8th day of July, 1999) between Educational Video Conferencing Inc.
(hereinafter "EVC"), with offices located at 00 XxxxXxxxxx Xxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxx Xxxx 00000, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (hereinafter "Xxxxxxx Xxxxx"), with its World Headquarters located
at the World Financial Center, North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Whereas, Xxxxxxx Xxxxx offers a Tuition Assistance Program to its employees
pursuant to which employees may qualify for reimbursement of tuition paid to
qualifying colleges and universities; and
WHEREAS, certain colleges and universities have contracted with third parties
which provide college courses to matriculated and non-matriculated students at
the students' place of employment via telecommunications and video conferencing
facilities, on an interactive, real-time basis (hereinafter referred to as
"Interactive Televideo Distance Learning"); and
WHEREAS, EVC is one such provider of Interactive Televideo Distance Learning
which is (a) currently under contract with colleges and universities which
qualify for Xxxxxxx Xxxxx'x Tuition Assistance Program, and (b) paid by such
colleges and universities to deliver the college courses and materials
comprising the Interactive Televideo Distance Learning; and
WHEREAS, Xxxxxxx Xxxxx desires to provide its employees with the opportunity to
participate in Interactive Televideo Distance Learning at domestic locations
designated by Xxxxxxx Xxxxx pursuant to individual Schedule(s) issued pursuant
hereto; and
WHEREAS, EVC has the ability to provide such Interactive Televideo Distance
Learning and agrees to provide same to Xxxxxxx Xxxxx in accordance with the
terms and conditions of this Agreement;
NOW, THEREFORE, the parties agree as follows:
EVC agrees to make available Interactive Televideo Distance Learning to Xxxxxxx
Xxxxx employee who (a) qualify for Tuition Assistance Program, (b) have made
application to their respective colleges and universities that they be allowed
to participate in Interactive Televideo Distance Leaning with EVC at designated
Xxxxxxx Xxxxx premises, and (c) have been granted the right by their college or
university to do so, commencing with the Fall 1999 semester.
Pursuant to Xxxxxxx Xxxxx'x written request, which shall take the form of a
Schedule (an example of which is attached hereto as Exhibit A), EVC will provide
to Xxxxxxx Xxxxx, such materials (in hard copy and/or electronic format),
computer programs and Xxxxxxx Xxxxx approved equipment (collectively referred to
as "Technology") as may be necessary to implement the Interactive Televideo
Distance Learning; provided, however, that in all instances EVC shall be subject
to the security requirements and operational procedures of Xxxxxxx Xxxxx, as
well as the direction and management of the ML personnel who shall serve as the
"ML Site Liaison" The ML Site Liaison shall supervise, coordinate and manage the
implementation of EVC's Interactive Televideo Distance Learning at the ML
location designated in the Schedule with personnel from all relevant ML
business, functional and operational areas, e.g., Domestic Site Management,
Training and Development, Corporate Human Resources, and such other functional
and operational areas of Xxxxxxx Xxxxx which has/have jurisdiction over the ML
location and the business conducted therein or therewith.
EVC hereby agrees to take direction from the ML Site Liaison and such other ML
personnel as designated by the ML Site Liaison in Implementing the Interactive
Televideo Distance Learning to meet the dates and times for delivery of the
courses at the particular ML location. In no event shall EVC (1) use any ML
equipment, including without limitation any desktop computers or video
conferencing equipment at the designated ML location without the prior written
consent of authorized personnel, or (2) install any equipment on ML premises,
without the prior written consent of authorized personnel from (a) of the ML
business unit requesting the Interactive Televideo Distance Learning, and (b) ML
Domestic Site Management for such location.
EVC will provide video enabled computers for Xxxxxxx Xxxxx locations if
the student course registrations at said locations meet EVC projections for each
said location, subject to the approval of the appropriate Xxxxxxx Xxxxx business
unit and appropriate domestic site management.
It is acknowledged and agreed by EVC that under no circumstances shall the cost
of implementing EVC's interactive Televideo Distance Learning be borne by ML,
unless otherwise expressly agreed in the Schedule by authorized personnel of the
ML business unit requesting EVC's services and programming.
In the event that, in the opinion of EVC, enrollment justifies additional video
conferencing room systems, EVC will provide and install such additional room
video conferencing systems that shall be compatible with Xxxxxxx Xxxxx'x
installed base of video conferencing systems at no cost to Xxxxxxx Xxxxx,
subject to the approval of the appropriate Xxxxxxx Xxxxx business unit and
appropriate domestic site management.
XXXXXXX XXXXX agrees to allow EVC to transmit courses on a schedule to be
mutually agreed upon and general conformity with Monday through Thursday from
5:00 p.m. to 11:00 p.m., Friday 5:00 p.m. to 8:00 p.m. and Saturday from 9:00
a.m. to 3:00 p.m.
Subject to the approval of the appropriate Xxxxxxx Xxxxx business unit and
appropriate ML domestic site management, EVC will offer courses over video
enabled desktop computers supplied by EVC at locations to be mutually agreed
upon and subject to minimum college student course registrations.
XXXXXXX XXXXX agrees that it will make its employees aware of their option to
participate in the EVC Interactive Televideo Distance Learning program as part
of the ML Tuition Assistance Program
EVC shall also coordinate its activities with (and through) Ms. Xxxxx Xxxxxx,
Manager, ML Tuition Assistance Program, and in accordance with ML's policies and
procedures concerning same.
EVC shall offer undergraduate and graduate courses and programs in Management,
Marketing, Economics, Finance and Accounting to XXXXXXX XXXXX from accredited
colleges and universities. The specific courses, degree programs and designated
colleges and universities shall be subject to the review and approval of the
manager, ML Tuition Assistance Program, or her designee, in consultation with
the ML Site Liaison, prior to the commencement of the applicable academic
term(s) ML will endeavor to complete such review and approval three (3) months
prior to such academic terms(s) Subject to Xxxxxxx Xxxxx'x prior written
approval, certain communications describing the Interactive Televideo Distance
Learning program may be provided (electronically or otherwise) by Xxxxxxx Xxxxx
to Xxxxxxx Xxxxx employees. Such approval, if any, will be set forth in the
applicable Schedule.
XXXXXXX XXXXX'x Tuition Assistance Program, through its Manager, agrees to
endeavor to provide EVC with such information concerning enrollment in the
Interactive Televideo Distance Learning program at ML as it deems reasonable and
necessary to the successful implementation and operation of the program at ML.
Subject to the written approval of the appropriate Xxxxxxx Xxxxx business unit
and appropriate domestic site management, ML will allow EVC to utilize its
installed base of room systems to transmit courses to ML employees at no cost to
EVC.
Unless otherwise expressly provided in a Schedule by the ML business unit
requesting the Interactive Televideo Distance Learning at the designated ML
location, EVC agrees that it will pay all telecommunications costs, including
monthly charges, associated with signal transport from any educational provider
to EVC's bridge at no cost to Xxxxxxx Xxxxx. EVC is also responsible to pay all
multipoint bridging costs.
XXXXXXX XXXXX agrees that it will pay all telecommunications costs including
monthly charges associated with signal transport from ML's video conferencing
sites to EVCs bridge.
Xxxxxxx Xxxxx agrees that it will provide its employees with access to Xxxxxxx
Xxxxx facilities from which to participate in EVC courses at no cost to EVC; ML
shall be responsible for security personnel, if necessary.
It is acknowledged and agreed by EVC that the opportunity to present Interactive
Televideo Distance Learning to ML employees at ML designated locations is
provided to EVC on a non-exclusive basis; that nothing in this Agreement shall
prevent ML from entering into the same or similar arrangements with other
providers of the same or comparable services or programs. The parties agree that
they will cooperate with one another in promotion the EVC program to ML
employees.
EVC agrees to comply with all the rules, policies and procedures of ML Tuition
Assistance Program, as well as ML's security regulations and operational
procedures in implementing this Interactive Televideo Distance Learning program
at each ML designated location.
Subject to the approval of the appropriate Xxxxxxx Xxxxx business unit and
appropriate ML site management, EVC shall be permitted to conduct open houses
and registration meetings at such Ml locations as can be mutually agreed upon
from time to time.
XXXXXXX XXXXX shall xxxxx EVC, its employees and/or agents such access to ML
facilities as shall be reasonably necessary to the installation and maintenance
of any equipment provided by EVC in connection with this agreement, as well as
for the proper administration of the program contemplated hereunder.
Any equipment which is permitted by ML to be installed by EVC in conjunction
with this program (which permission, if granted, shall be set forth in the
Schedule applicable to the ML designated location and initialed by authorized ML
Domestic Site Management Personnel) shall remain the sole property of EVC and,
upon the expiration determination thereof shall be immediately picked by EVC.
XXXXXXX XXXXX shall be permitted to utilize EVC equipment when same is not in
use by EVC and agrees to hold EVC harmless and indemnify EVC for any loss or
damages resulting from the use of said equipment by ML; in addition, ML agrees
to immediately reimburse EVC for any costs associated with the repair or
replacement of any equipment lost, damaged or stolen while in ML's possession.
In addition, ML agrees not to permit any other use, other than by EVC of its
installed base of room systems during any regularly scheduled EVC class or
course; ML further agrees to promptly repair or replace, as necessary, any of
its equipment or systems which will be utilized by EVC in delivering access to
classes and programs hereunder.
The terms of this agreement shall be five (5) years from the date first written
above and this agreement shall be automatically extended for one additional year
on each anniversary of the original execution.
In the event that either party should desire not to automatically extend this
agreement, then the party so desiring must notify the other in writing, by
Certified Mail, Return Receipt Requested, not less than ninety (90) days prior
to the anniversary date of this agreement, in which case this agreement shall
only have four (4) years remaining in its term.
EVC's Intellectual Property Infringement Indemnification
EVC shall defend, at its sole expense, indemnify, defend and hold harmless
Xxxxxxx Xxxxx, its parents, and subsidiaries and affiliates of Xxxxxxx Xxxxx or
its parent, and their respective clients, customers, suppliers, licensors,
officers, directors, employees, agents, and contractors, from and against all
loss liability, damages, costs and expense, judgments and awards (including
without limitation, fees disbursements and expenses of legal counsel) resulting
in any way from a claim or action for Infringement by virtue of Xxxxxxx Xxxxx'x
use and/or possession of the content, information, materials and/or Technology
comprising the Interactive Televideo Distance Learning program provided by or on
behalf of EVC hereunder. Xxxxxxx Xxxxx shall have the right to participate in
the defense or any such claim or action and all negotiations for its settlement
or compromise. Nothing herein shall give EVC the right to bind Xxxxxxx Xxxxx to
any agreement without its prior written consent.
EVC, for itself and on behalf of its employees, agents, contractors and
representatives ("Personnel"), agrees to defend, indemnify and hold Xxxxxxx
Xxxxx, its parent and subsidiaries and affiliates of Xxxxxxx Xxxxx or its
parent, and their respective clients, customers, suppliers, licensors, officers,
directors, agents employees and contractors, harmless from and against any and
all liabilities, damages, losses, expenses, demands, claims, suits or judgments
(including reasonable attorney's fees, costs and expenses) arising out of or in
connection with (a) any act or omission of EVC or EVC's Personnel, or (b) the
services performed or the Interactive Televideo Distance Learning program
components, in whole or in part, provided hereunder.
Confidential Information
------------------------
EVC, on its own behalf and on behalf of EVC Personnel, agrees that any
information or material concerning Xxxxxxx Xxxxx, its parent or subsidiaries or
affiliates of Xxxxxxx Xxxxx or its parent, their respective clients, customers,
suppliers, licensors, officers, directors, employees, agents, and contractors,
which is provided or disclosed to EVC, or to which EVC may otherwise have access
during the term of this Agreement, is confidential and proprietary to Xxxxxxx
Xxxxx ("Xxxxxxx Xxxxx Confidential Information"). Such information shall be held
in trust and confidence by EVC and its personnel and shall not be disclosed to,
or reproduced or used by EVC or its Personnel for its own purposes or
distributed to any third-party. EVC acknowledges that all Xxxxxxx Xxxxx
Confidential information is the sole and exclusive properly of Xxxxxxx Xxxxx and
will be immediately returned by EVC either (a) upon request of Xxxxxxx Xxxxx or
(b) upon the termination of the Agreement, whichever occurs sooner. EVC shall
inform its Personnel of these restrictions on the use, possession, distribution
and disclosure of Xxxxxxx Xxxxx Confidential information and shall cause its
Personnel to execute all necessary and appropriate documents and writings to
ensure compliance with the obligations of trust and confidence set forth herein.
Representations, Warranties and Covenants.
-----------------------------------------
(a) EVC represents and warrants and covenants that (i) it has the expertise,
experience and familiarity with the subject matter necessary to perform the
Interactive Televideo Distance Learning program and provide all the content,
materials, information and Technology comprising same under the terms of this
Agreement; (ii) that the Interactive Televideo Distance Learning program shall
be provided in accordance with and shall conform to the highest professional and
industry standards; (ii) that the Interactive Televideo Distance Learning
program shall be provided in accordance with and shall conform to the highest
professional and industry standards; (iii) EVC has all right, title and interest
in, or otherwise has the lawful right to provide, the Interactive Televideo
Distance Learning program, in whole and in part, to Xxxxxxx Xxxxx under the
terms and conditions of this Agreement; (iv) that EVC has all the requisite
agreements, consents, permissions and licenses to provide the Interactive
Televideo Distance Learning
program to ML; and (v) that same does not Infringe upon any patent, copyright,
trade secret or other intellectual property right or interest, proprietary or
otherwise, of a third party ("Infringement");
EVC shall not use Xxxxxxx Xxxxx'x name or logo, or that of its parent or any
subsidiary or affiliate of Xxxxxxx Xxxxx, or its parent, in any publicity
release or advertising or any other publicly distributed materials, including
without limitation via the Internet or on any web site(s) or web page(s),
without securing Xxxxxxx Xxxxx'x prior written consent, which may be withheld in
its sole discretion. Under no circumstances shall EVC be permitted to use the
aforementioned logo, in any capacity or manner.
It is expressly agreed and understood that except for EVC's (a)
infringement indemnity obligations, (b) breach of confidentiality, (c)
intentional act(s), gross negligence or willful misconduct, and except for
damage to tangible property, neither party shall be liable for incidental,
special or consequential damages related to or in connection with this
Agreement.
All notices required to be given hereunder shall be done in writing and mailed
certified, return receipt requested, to the other party at their last known
address, and shall be deemed given when mailed.
This agreement shall be construed and interpreted under the laws of the State of
New York.
If any portion of this agreement is held to be void or unenforceable,
it shall not effect the validity and enforceability of the remaining portions.
Any disputes arising hereunder shall be determined by way of
arbitration before the American Arbitration Association at their offices located
in White Plains, New York.
The foregoing constitutes the entire agreement between the parties with
respect to the matters contained herein and no other such agreements shall be
valid unless in writing and subscribed to with the same formality as this
document.
WHEREFORE, the parties have hereunto affixed their hands and seals the date
first indicated above.
XXXXXXX XXXXX
By:/s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
Relationship Manager
FSOS, Performance Support
EDUCATIONAL VIDEO CONFERENCING, INC.
By: Xxxx X. XxXxxxx, Ph.D
--------------------------------
Xxxx X. XxXxxxx, Ph.D
President
