Exhibit 10.3
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC.
AND MERCY 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 10th of March, 1998, between Mercy College, with
offices located at 000 Xxxxxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000 (hereinafter
"MERCY"), and Educational Video Conferencing Inc., (hereinafter "EVC"), with
offices located at 00 X. Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, MERCY 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 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, MERCY and EVC wish to enter into a mutually
beneficial agreement whereby EVC will provide access to MERCY 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.) EVC shall have the right, for the duration of this agreement
and any renewal hereof, to offer all accredited college courses, degree programs
and non-degree courses and programs offered by MERCY via Interactive Video
Conferencing/Distance Learning (hereinafter "IVC/DL") and Web-based Computer
Conferencing/Distance Learning (hereinafter "CC/DL"), commencing in March, 1998.
This 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 purposes of this agreement, CC/DL shall be defined as
Web-based computer conferencing.
d.) Unless MERCY and EVC agree otherwise in writing, the
minimum class size for the offering of an ITV/DL and CC/DL course shall be
Fifteen (15) students.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS EXHIBIT
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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 MERCY
courses to IVC/DL students. Students taking IVC/DL courses on desk-top computers
must have modern computers capable of being video enabled and function as an
IVC/DL desk-top 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, MERCY 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 MERCY courses. Unless otherwise
agreed, MERCY 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 MERCY
programs and courses offered through EVC.
4. EVC will be responsible for installing and maintaining adequate
telephone lines for teaching stations and for the cost of providing
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 10
teaching stations in the rooms provided by MERCY 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. EVC
assumes no responsibility or cost for obtaining, providing or paying for teacher
station equipment 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 MERCY, and all rights and interests
in said materials will remain the sole and exclusive property of MERCY.
7. a.) EVC is responsible for the necessary maintenance, repair
and/or replacement of video conferencing equipment supplied to MERCY 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.) MERCY will be responsible for the prompt repair and/or
replacement of interactive video conferencing equipment located at MERCY, which
may be damaged through improper or unauthorized use.
d.) MERCY is responsible for the repayment to EVC of the cost
of replacement of any EVC equipment, which is lost or stolen while in MERCY's
custody and control.
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.
9. a.) EVC will provide faculty development to MERCY faculty
reasonably required for the offering of MERCY courses through EVC.
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b.) MERCY 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 MERCY courses. MERCY 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, MERCY agrees to be receptive to and
consider EVC input as to course content presentation and delivery of IVC/DL and
CC/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. MERCY 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 (a) to offer IVC/DL courses
at dates and times appropriate to the target market, between the hours of 8:00
a.m. and 11:00 p.m., seven days per week and at such other times requested by
EVC Institutional Employers and their employees, subject to enrollment. and (b)
to offer CC/DL courses commencing at times reasonable requested by EVC's
Institutional Employers corporate and their employees, subject to enrollment,
including but not limited to the three academic semesters offered each year by
MERCY: 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, which may lead to a degree or certificate.
b.) MERCY shall attempt to obtain and/or maintain all New York
State Department of Education, Middle States Association, and any other
accreditation necessary to the offering of college courses and credits under the
applicable law. Should MERCY 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.) MERCY 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.
b.) MERCY shall hire, subject to EVC's approval, an admissions/
administrative coordinator to work at MERCY's and EVC's offices on a part time
or full time basis as registration demand requires. This employee shall be
responsible for coordinating all aspects of the admission/administrative
processes performed by MERCY employees for students applying to MERCY under this
contract. The employee shall report to the Assistant Vice President for Academic
Affairs in consultation with the Vice-President of Enrollment Management at EVC.
EVC shall be responsible for FIFTY (50%) PERCENT of said employee's salary and
benefits. MERCY shall pay the employee and
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shall deduct FIFTY (50%) PERCENT of said employee's salary and benefits from its
cash disbursement to EVC on a monthly basis.
c.) Beyond the first THREE HUNDRED FIFTY (350) prospective
students which will be handled by the admissions/administrative coordinator set
forth above in paragraph 15b, MERCY shall hire, subject to EVC's approval, one
admissions/administrative counselor for each THREE HUNDRED FIFTY (350)
prospective students interested in taking IVC/DL or CC/DL courses offered by
MERCY through EVC. Said employees shall work out of EVC's and MERCY's offices.
The employee shall report to the Assistant Vice President for Academic Affairs
at MERCY in consultation with the Vice-President of Enrollment Management at
EVC. EVC shall be responsible for FIFTY (50%) PERCENT of said employee's salary
and benefits. MERCY shall pay the employee and shall deduct FIFTY (50%) PERCENT
of said employee's salary and benefits from its cash disbursement to EVC on a
monthly basis.
d.) MERCY will provide all necessary administrative forms,
applications, catalogues, etc., and written instructions to EVC in advance of
marketing courses to any organization and 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 MERCY nor for return of
any of the aforesaid documents to MERCY.
16. Fees
a.) MERCY shall pay to EVC, on the 10th day of each month, [ *
] of the gross tuition actually collected by MERCY the preceding
month, from any source whatever, from or on behalf of any student employed by an
Institutional Employer customer of EVC registered for and attending accredited
college degree courses being offered through EVC's, said payments to commence
the month immediately following the collection of any such tuition by MERCY. All
checks for courses taken will be made out to MERCY COLLEGE.
b.) EVC shall have the right, on a semi-annual basis, to examine
the books and records of MERCY, pertaining to all students taking courses
through EVC, in order to audit any accounts due and owing the respective
parties. MERCY COLLEGE shall have the right to audit EVC accounts for students
taking MERCY courses on the same basis.
c.) Commencing on April 10, 1998, and continuing on the 10th day
of every month thereafter, MERCY will supply EVC with a list of all students who
have applied to MERCY, 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 MERCY updated information relating to MERCY students each month.
d.) 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 MERCY by EVC,
the format of which shall be subject to MERCY's approval, which approval shall
not be unreasonably withheld.
e.) Within THIRTY (30) DAYS of the completion of each Fall and
Spring Semester, MERCY 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 MERCY's
account in three equal installments over the three months immediately following
such request by MERCY.
[*] Confidential Portion
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f.) Students registering for MERCY 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 MERCY until completion of the course, thereby enabling said students to
register for MERCY 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.
g.) Students registering for MERCY 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
when registering.
17. a.) MERCY 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 and telephone lines. Said
room shall be a minimum of 10 feet by 12 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 MERCY 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.
18. MERCY Public Relations Department will provide reasonable
cooperation with EVC in promoting EVC/MERCY Telecommute to College Program and
the IVC/DL and CC/DL course offerings offered through EVC.
19. MERCY 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. MERCY shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL and CC/DL presentation.
21. MERCY will assign at least one person who at all times will act as
liaison between MERCY 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
July 1, 1998, and every July 1st 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 April 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.
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23. MERCY shall have the right to offer courses via IVC/DL and/or
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. MERCY 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, MERCY will not independently video
conference or computer conference its college courses or programs under this
contract to EVC clients or their employees. This provision does not include
corporate clients who have employees taking distance learning courses from MERCY
COLLEGE prior to March 1998.
25. Damages Limitation
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.
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.
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.
EDUCATIONAL VIDEO CONFERENCING, INC. MERCY COLLEGE
By: /s/ Xxxx X. XxXxxxx By:/s/ Xxx Xxxxxx
--------------------------------- --------------------------------
Xxxx X. XxXxxxx, Ph.D., President Xx. Xxx Xxxxxx, Ph.D., President
APPENDIX A
ARMS LENGTH TRANSACTION
The parties to the foregoing agreement hereby acknowledge that at all times
relevant hereto Xx. Xxxx X. XxXxxxx was an employee of both Educational Video
Conferencing, Inc. and Mercy College.
The parties further acknowledge that as a result of such dual employment, there
has existed the potential for a conflict of interest with regard to the
foregoing agreement.
The parties hereby warrant and represent that no actual conflict of interest
has arisen in connection herewith and that this agreement represents an arms
length transaction which has the same validity and effect as though the
potential conflict had not existed.
Dated: Dobbs Ferry, New York
March , 1998
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Buntzman, Ed.D., C.E.O.
MERCY COLLEGE
By: /s/ Xxx Xxxxxx
--------------------------------
Xxx Xxxxxx, Ph.D., President
