EXHIBIT 10.14
CONSORTIUM AGREEMENT
This Academic Consortium Agreement made as of the 2nd day
of February, 2005 (the "EFFECTIVE DATE") by and between Sonoma College, Inc., a
California corporation having its principal place of business at 0000 Xxxxx
Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxxxx 00000 ("SONOMA") and National
Holistic Institute, Inc., a California corporation, having its principal place
of business at 0000 Xxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxxx, XX 00000 ("NHI" and
together with Sonoma, the "PARTIES" and each individually, a "PARTY").
WHEREAS each of the Parties has developed and created,
educational, proprietary degree and/or certificate programs (each a "PROGRAM"
and collectively, "PROGRAMS") which incorporate intellectual property and other
proprietary rights of such Party, including without limitation Content (as
defined herein); and
WHEREAS, Sonoma has developed proprietary technology to
deliver its general educational courses to students which consists of software
methodologies and other proprietary technologies, methods, plug-ins, trade
secrets and know-how (the "SONOMA PLATFORM"); and
WHEREAS, the Parties agree that this academic consortium
(the "Consortium") will provide Sonoma's Associate of Applied Science degree in
Massage Therapy (AASMT) program to NHI students and graduates; and
WHEREAS, the Parties agree that this Consortium will
provide NHI's Massage Therapists and Health Educator
(MTHE) program at Sonoma's campuses.
NOW, THEREFORE, in consideration of the premises, the
mutual covenants and agreements herein contained and
other valuable consideration, the receipt, adequacy and sufficiency of which is
hereby acknowledged, the Parties covenant and agree as follows:
I. DEFINITIONS.
"CONTENT" means curriculum materials, text, pictures,
sound, graphics, video and data provided by a Party
to the other Party, as such materials may be modified from time to time.
"INTELLECTUAL PROPERTY" means any and all now known or
hereafter known tangible and intangible: (a) rights associated with works of
authorship throughout the universe, including but not limited to copyrights,
moral rights, and mask-works, (b) trademark, servicemark, trade dress and trade
name rights and similar rights, (c) trade secret rights, (d) patents, designs,
algorithms and other industrial property rights, and (e) all other intellectual
and industrial property rights (of every kind and nature throughout the universe
and however designated, including without limitation logos, "rental" rights and
rights to remuneration), whether arising by operation of law, contract, license,
or otherwise, and all registrations, initial applications, renewals, extensions,
continuations, divisions or reissues hereof now or hereafter in force (including
any rights in any of the foregoing).
II. RESPONSIBILITIES OF THE PARTIES.
A. The Parties agree that, during the Term (as
defined herein), this Consortium will provide Sonoma's AASMT program to NHI
students and graduates and that this Consortium will provide NHI's MTHE program
at Sonoma's campuses.
B. For each Program identified pursuant to
Paragraph II A above (each a "Program"), the Parties shall complete and sign a
separate Program specification (each a "PROGRAM SPECIFICATION") which shall
reference this Agreement, and each such signed Program Specification shall be
attached as an Exhibit to this Agreement and become a part of this Agreement. It
is understood, however, that neither Party is obligated to license the use of a
Program or any Content to the other Party until, unless, and only to the extent
that a Program Specification is signed by both Parties.
C. Each Program Specification shall describe the
Program, the responsibilities of each of the Parties in connection with the
Program ("RESPONSIBILITIES"), any Content to be delivered to the other Party
("DELIVERABLES"), and the effective commencement date for the program ("PROGRAM
COMMENCEMENT DATE"). Each of the Parties shall use its best efforts to perform
its Responsibilities and deliver the Deliverables in accordance with the
schedules set forth in the Program Specification.
III. GRANT OF LICENSE.
A. Subject to the terms and conditions of this
Agreement, each of the Parties shall grant the other Party a limited,
non-exclusive, non-transferable, world-wide license ("LICENSE") to use any
Content that it provides to the other Party pursuant to this Agreement, solely
to the extent expressly set forth in the applicable Program Specification (the
"INTENDED USE"). All fields of use not expressly included within the Intended
Use are specifically excluded from the scope of the License. In no event will a
Party remove or alter any proprietary notice of the other Party, or any third
party, contained on or any of the Content without the prior written consent of
the Party that provided such Content.
IV. CONFIDENTIALITY.
A. Confidential Information. "CONFIDENTIAL
INFORMATION" shall include all information and data furnished by one Party to
the other, whether in oral, written, graphic or machine-readable form, including
without limitation, code (source and object) specifications, user, operations or
systems manuals, diagrams, graphs, models, sketches, technical data, flow
charts, research, business or financial information, plans, strategies,
forecasts, forecast assumptions, business practices, marketing information and
material, student and suppliers names and data, proprietary ideas, concepts,
know-how, methodologies and all other information related to the disclosing
party's business. For purposes of this Agreement, Confidential Information shall
not include, and the obligations provided hereunder shall not apply to,
information that: (a) is now or subsequently becomes generally available to the
public through no fault of the recipient; (b) recipient can demonstrate was
rightfully in its possession prior to disclosure by the other party; (c) is
independently developed by the recipient without the use of any Confidential
Information provided by the
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other party; (d) recipient rightfully obtained or obtains from a third party who
has the right, without obligation to the other party, to transfer or disclose
such information; or (e) is released or approved for release by the other party
without restriction.
B. Care and Protection. Each party shall protect
the other party's Confidential Information using at least the same standard of
care that applies to its own similar Confidential Information, but not less than
a reasonable standard of care.
C. Exceptions. Either party may disclose the
other party's Confidential Information as required by any order of any
government authority, or otherwise as required by law, or as necessary to
establish and enforce that party's rights under this Agreement. Before
disclosing the other party's Confidential Information for such purpose,
reasonable effort must be made to notify the other party of the circumstances,
and the parties shall cooperate with each other to obtain protection for the
confidentiality thereof to the extend available.
D. Term of Confidentiality. Each party's
obligation to protect the other party's Confidential Information shall expire
five (5) years after the date of each respective disclosure thereof.
All of the provisions of this paragraph IV shall survive
any termination of this Agreement.
V. OWNERSHIP
A. Each Party acknowledges and agrees that it does not have
any claim, right, title or interest in or to the other Party's Intellectual
Property except as explicitly provided herein. Further, each Party acknowledges
and agrees that it will use the other Party's Intellectual Property solely as
expressly permitted under this Agreement and in a manner consistent with the
terms and conditions of this Agreement. Nothing contained in this Agreement will
give either Party any right, title or interest in or to any Intellectual
Property of the other Party, except for the limited rights expressly granted
hereunder. Each Party acknowledges and agrees that the other Party (and its
licensors, if applicable) has complete authority to control the use of its
Intellectual Property. Nothing in this Agreement contemplates the joint
development, joint works of authorship, or joint ownership of any Intellectual
Property, and this Agreement shall not be construed so as to effect such joint
development, joint works of authorship or joint ownership. If the parties desire
to engage in any joint development efforts during the Term, the ownership rights
of such developments will be established in a writing signed by an authorized
member of each Party and amended to this Agreement. Without limiting the
foregoing, any Content provided by Sonoma to NHI pursuant to the Agreement
("SONOMA CONTENT"), the Sonoma Platform and all associated Intellectual Property
rights are, and will remain, the sole and exclusive property of Sonoma or its
third-party licensors, and no license, right, title, interest in and/or to the
Sonoma Content or Sonoma Platform is granted to NHI except as set forth in this
Agreement. Likewise, any Content or Platform provided by NHI to Sonoma pursuant
to the Agreement ("NHI CONTENT") and all associated intellectual property rights
are, and will remain, the sole
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and exclusive property of NHI, and no license, right, title, interest in and/or
to the NHI Content is granted to Sonoma except as set forth in this Agreement.
All of the provisions of this paragraph V shall survive any
termination of this Agreement.
VI. FEES, PAYMENT AND RELATED MATTERS.
A. All tuition and all other fees earned and
received by either Party from a student in connection with the Programs
(collectively, the "TUITION FEES") less any applicable taxes, duties, discounts,
refunds or credits, provided that any discounts or credits are in accordance
with the Program Administrator's standard policies, shall be collected by the
Party that maintains administration and academic oversight of the Program as set
forth in the Program Specification (the "PROGRAM ADMINISTRATOR"). The Parties
agree that the Party collecting the Tuition Fees shall pay to the other Party a
percentage (the "FEE PERCENTAGE") of the Tuition Fees earned and received by the
Program Administrator in connection with the Program (the "NET FEES"), and both
the Fee Percentage and the Net Fees shall be set forth in the applicable Program
Specification.
B. The Program Administrator shall, in its sole
discretion, determine the amount of Tuition Fee and any other fees that are
payable by a student enrolled in a Program.
C. Within twenty (20) days after the end of each
calendar month during the Term, the Program Administrator shall deliver to the
other Party the Fee Percentage of the Net Fees together with a certificate of a
duly authorized and responsible employee of the Program Administrator setting
forth the Net Fee calculations during such calendar month and any and all other
information necessary for the determination of Tuition Fees payable to the other
Party under this Agreement.
D. The Parties agree to review the Fee Percentage
set forth in each Program Specification each calendar quarter of the Term. Any
amendments to the Fee Percentage shall not be effective unless it is stated in
writing and is executed on behalf of each Party.
E. The Program Administrator will keep such
records as will enable the Fees payable hereunder to be accurately determined by
the other Party. Such records will be retained by the Program Administrator and
made available to auditors selected by the other Party for examination at the
request and at the expense of the other Party during reasonable business hours
at the offices of the Program Administrator as set forth in the Program
Specification for a period of at least five (5) years after the date of the
transactions to which the records relate. Any confidential information obtained
by such auditors regarding the business of the Program Administrator shall be
held in strict confidence by such auditors and the other Party, except as may be
necessary to prosecute an action to collect Fees. The Program shall reimburse
the other Party for the costs of such audit if the audit determines that the
Fees due as stated in any such certificate is understated by more than five
percent (5%).
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VII. WARRANTIES AND COVENANTS.
A. Each Party does hereby represent and warrant
that this Agreement has been duly and validly authorized and executed by it and
is its valid and binding obligation. Each party further warrants that the
execution of this Agreement does not, and with the passage of time, will not,
materially conflict with or constitute a breach under any other agreement,
judgment of instrument to which it is currently a party or by which it is
currently bound.
B. Each Party does hereby represent and warrant
that it currently has all material licenses, accreditations, certificates,
permits, consents, franchises, approvals, authorizations, and other
authorizations and approvals necessary to operate each of the Program(s) set
forth on a Program Specification in the manner required by this Agreement and
issued by appropriate entities that engage in granting or withholding approvals
for and reguate post-secondary schools, their agents, or employees in accordance
with standards relating to the performance, operation, financial condition, or
academic standards of such schools, and the provision of financial assistance by
and to such schools.
C. Each Party does hereby represent and warrant
to the other Party that: (i) it has the right to grant the license to use its
Content without the other Party directly or indirectly being required to pay a
royalty to any third party; (ii) to the best of its knowledge, use of its
Content or any part thereof will not infringe upon or violate the
intellectual-property, publicity or privacy rights of any third party; (iii) to
its knowledge any of its Content will not be defamatory, lewd, pornographic or
obscene; (iv) to its knowledge that its Content will be in compliance with all
applicable laws, and will not violate any laws regarding unfair competition,
anti-discrimination or false advertising; (iv) no claim by any third party
contesting the validity of any intellectual property rights in the Content has
been made, is currently outstanding or, to the best knowledge of the Party, is
threatened, and the Party has not received any notice of and is not aware of any
fact indicating any infringement, misappropriation or violation by others of any
intellectual property rights in its Content; (v) to its knowledge its Content
will not contain any virus, worm, "trojan horse", time bomb or similar
contaminating or destructive feature ; and (vi) it will not knowingly infringe
the patent, copyright or other proprietary rights in the other Party's Content
nor knowingly assist others in doing so.
D. EXCEPT AS STATED HEREIN, THE SONOMA PLATFORM
IS LICENSED AS-IS. IT IS UNDERSTOOD THAT SONOMA IS NOT MAKING AND EXPRESSLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE USE OF ANY OTHER PRODUCT
MADE BY OR FOR NHI, EXCEPT THAT "THE SONOMA PLATFORM" AS CONTAINED IN THE
DELIVERABLES AND STANDING ALONE, WILL NOT INFRINGE THE PATENTS, COPYRIGHTS,
TRADEMARKS OR OTHER PROPRIETARY PROPERTY RIGHTS OF ANY THIRD PARTY.
E. EXCEPT AS STATED HEREIN, EACH PARTY EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT
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LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
F. REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS
OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE CONTENT OR THE USE
OF THE SAME (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST INFORMATION, LOST
SAVINGS, LOST PROFITS OR BUSINESS INTERRUPTION), EVEN IF SUCH PARTY HAS BEEN
INFORMED, IS AWARE, OR SHOULD BE OR HAS BEEN AWARE, OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR AMOUNTS TO EXCEED THE FEE
PERCENTAGE PAYMENTS RECEIVED AS A RESULT OF THIS AGREEMENT.
All of the provisions of this paragraph VII shall survive
any termination of this Agreement.
VIII. INDEMNIFICATION.
A. GENERAL. Each party agrees to indemnify and
hold harmless the other and its affiliates, and their respective officers,
agents and employees, from and against any and all loss, liability and expense
(including reasonable attorneys' fees) suffered or incurred (collectively
"DAMAGES") by reason of any third party claims, proceedings or suits based on or
arising out of: (i) breach of its representations and warranties hereunder, or
(ii) any claim for infringement of any third party patent, copyright, trade
secret, trademark or other proprietary right. Indemnification shall apply
provided that the party seeking indemnification has given the indemnifying party
prompt written notice of any such claim, permits the indemnifying party to
defend the claim and have sole control over such defense, including appeals and
all negotiations to affect settlement, and gives the indemnifying party all
available information and assistance as is reasonably necessary for the defense.
B. REMEDIES. If either party believes that any
Intellectual Property licensed or provided under this Agreement has become, or
in the opinion of such party may become, the subject of a claim for
infringement, the party may, at its election and expense: (i) procure for the
other party the right to continue using the same, or (ii) replace or modify the
same so that it becomes non-infringing. The party shall elect one of the above
remedies in the event of a preliminary or permanent court order prohibiting use
of the Intellectual Property on a temporary or permanent basis. This section
states each party's entire right and liability and sole and exclusive remedies
with regard to any intellectual property infringement.
All of the provisions of this paragraph VIII shall survive
any termination of this Agreement.
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IX. TERM AND TERMINATION.
A. Term. The term of this Agreement shall be for
a period of two (2) years from the Effective Date (the "INITIAL Term"). Upon
expiration of the Initial Term, this Agreement shall renew for successive two
(2) year terms unless either Party shall give the other notice of its desire not
to so renew the term no less than ninety (90) days prior to the expiration of
the then-current two (2) year term (the Initial Term and each such renewal term,
collectively, the "TERM"). Upon expiration of the Term, all rights and
obligations of the parties under this Agreement shall be extinguished.
B. Termination for Cause. Either party may
terminate this Agreement during the Term as follows:
(i) in the event of a breach by the other Party
of any of material term (including obligation to pay) of this Agreement if the
breaching Party fails to correct or cure the breach within thirty (30) days
after receipt of written notice stating the nature of the breach, the
non-breaching Party shall have the option to: (i) continue this Agreement until
the end of the then current student term; or (ii) immediately terminate this
Agreement.
(ii) the other Party is declared insolvent or
bankrupt, or makes an assignment of substantially all of its assets for the
benefit of creditors, or a receiver is appointed or any proceeding is demanded
by, for or against the other party under any provision of the federal Bankruptcy
Act or any amendment to that Act that is not terminated within thirty (30) days.
C. Effect of Termination for Cause. Upon
Termination for Cause, the terminated Party shall indemnify the other Party for
any Damages by reason arising out of such parties breach or insolvency and all
other rights and obligations of the parties under this Agreement shall be
extinquished.
D. Effect of Expiration of the Term or
Termination without Cause. Upon termination or expiration of the Term for any
reason other than for Cause, all rights and obligations of the parties under
this Agreement shall be extinguished, except that: (a) all accrued payment
obligations hereunder shall survive such termination or expiration; and (b) any
provisions which must survive in order to give effect to their meaning, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
E. Within ten (10) days of the date of
termination or expiration of this Agreement, each Party shall return to the
other Party any Deliverables received by such Party pursuant to this Agreement
or otherwise.
X. MARKETING
A. Press Release. The Parties will jointly
develop a press release announcing this Agreement and the activities
contemplated hereunder which shall be issued at a time mutually determined by
the Parties. Prior to issuance of this initial press release, neither party
shall issue any press release on its own or make any public statement, written,
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oral, or otherwise, regarding this Agreement and the activities contemplated
hereunder, without the other Party's prior written approval.
B. Marketing. Following issuance of the initial
press release, each party has the right to indicate publicly that it has entered
into this Agreement and may promote the other Party on its respective Web site
and in marketing materials, provided that each party will submit such materials
to the other Party for prior approval, which shall not be unreasonably withheld
or delayed. The parties may also jointly engage in public relations, trade
shows, trade associations and other marketing activities in support of the
launch and ongoing promotion of this Agreement as they mutually determine.
XI. MISCELLANEOUS.
A. Any assignment of this Agreement by one Party
requires the written consent of the other Party.
B. The headings and captions used in this
Agreement are for convenience only and are not to be used in the interpretation
of this Agreement.
C. The failure of either Party to require
performance of any provision of this Agreement shall not affect the right to
subsequently require the performance of such or any other provision of this
Agreement. The waiver of either Party of a breach of any provision shall not be
deemed to be a waiver of any subsequent breach of that provision or any
subsequent breach of any other provision of this Agreement.
D. The Parties are independent contractors and
engage in the operation of their own respective businesses. Neither Party is the
agent or employee of the other Party for any purpose whatsoever. Nothing in this
Agreement shall be construed to establish a relationship of co-partners or joint
venturers between the two Parties. Neither Party has the authority to enter into
any contract or to assume any obligation for the other Party or to make any
warranties or representations on behalf of the other Party.
E. If any provision of this Agreement is, or is
determined to be, invalid, illegal or unenforceable, all remaining provisions of
this Agreement shall nevertheless remain in full force and effect, and no
provision of this Agreement shall be deemed to be dependent upon any provision
so determined to be invalid, illegal or unenforceable unless otherwise expressly
provided for herein. Should any provision of this Agreement be found or held to
be invalid, illegal or unenforceable, in whole or in part, such provision shall
be deemed amended to render it enforceable in accordance with the spirit and
intent of this Agreement
F. This Agreement has been entered into,
delivered and is to be governed by, construed, interpreted and enforced in
accordance with the laws of the State of California (without giving reference to
choice-of-law provisions) from time to time in effect.
G. If a dispute arises out of or relates to this
Agreement and if said dispute cannot be settled through direct discussions, the
Parties agree to first endeavor to settle the dispute in an amicable manner by
mediation administered by the American
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Arbitration Association under its commercial mediation rules of JAMS/Endispute
("JAMS"), with the following exceptions if in conflict: (a) one arbitrator shall
be chosen by JAMS; (b) each party to the arbitration will pay its pro rata share
of the expenses and fees of the arbitrator, together with other expenses of the
arbitration incurred or approved by the arbitrator; and (c) arbitration may
proceed in the absence of any party if written notice (pursuant to the JAMS'
rules and regulations) of the proceedings has been given to such party. The
parties agree to abide by all decisions and awards rendered in such proceedings.
Such decisions and awards rendered by the arbitrator shall be final and
conclusive and may be entered in any court having jurisdiction thereof as a
basis of judgment and of the issuance of execution for its collection. The
Parties hereby consent to the non-exclusive jurisdiction of the courts of the
State of California or to any Federal Court located within the State of
California for any action arising out of, relating to, or in connection with,
this Agreement, and to service of process in any such action by registered mail,
return receipt requested, or by any other means provided by law. Notwithstanding
anything contained herein to the contrary, in the event of an arbitration
proceeding or litigation brought pursuant to the terms of this Agreement, the
prevailing Party shall be entitled to recover all costs of such proceeding or
litigation (including reasonable attorney fees) from the other Party.
H. This Agreement contains the entire and
exclusive agreement of the Parties with respect to its subject matter. This
Agreement supersedes any agreements and understandings, whether written or oral,
entered into by the Parties prior to its effective date and relating to its
subject matter. No modification or amendment of this Agreement shall be
effective unless it is stated in writing, specifically refers hereto and is
executed on behalf of each Party.
I. Any notices required to be given or delivered
to either party under the terms of this Agreement will be in writing and
addressed to the party at the address and telephone number indicated below or
such other address or telephone number as the party may designate, in writing,
from time to time. All notices will be deemed to have been given or delivered
upon: (i) personal delivery; (ii) two (2) business days after deposit with any
return receipt express courier (prepaid); or (iii) one (1) business day after
transmission and confirmed receipt by telecopier.
If to Sonoma:
0000 Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, President
Fax: (000) 000-0000
If to NHI:
0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, President
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J. Except for failures to make any payment when
due, neither Party hereto shall be liable to the other for failure or delay in
meeting any obligations hereunder as the result of strikes, lockouts, war, Acts
of God, fire, flood or acts of government, if beyond the control of such Party.
K. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the Parties hereto have set their hands
by their duly authorized representatives as of the day and year first above
written.
Sonoma College, Inc National Holistic Institute, Inc.
By: By:
------------------------------ ------------------------------
Name: Xxxx Xxxxxxx, Ph.D. Name: Xxxxx Xxxxx
Title: President Title: President
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EXHIBIT A
PROGRAM SPECIFICATION - ASSOCIATE OF APPLIED SCIENCE IN MASSAGE THERAPY (AASMT)
PROGRAM
Associate of Applied Science degree in Massage Therapy (AASMT) program
DELIVERABLES
Sonoma shall supply to NHI, in such a form and at such times as mutual agreed by
the Parties, the following Deliverables:
1. All curricula for core competency courses to be taught in the classes.
2. Student handbooks for the AASMT program.
3. AASMT Program application forms, marketing material and such other
information as Sonoma, in its sole discretion deems necessary.
SONOMA RESPONSIBILITIES
1. Sonoma shall offer potential students the ability to enroll in the
Associate of Applied Science degree in Massage Therapy (AASMT) and
attend classes at Sonoma College's online campus.
2. Sonoma shall have primary responsibility for the administrative and
academic oversight of every aspect of the AASMT Program. Sonoma shall
perform enrollment and registration, financial aid administration,
record keeping, and grade reporting for all students enrolled through
NHI.
3. Sonoma shall provide NHI with such Sonoma Content and support as
Sonoma reasonably deems necessary for NHI and its employees to provide
potential students with information about the AASMT Program and submit
an application form, which shall include without limitation marketing
material and the AASMT Program application forms.
4. Sonoma shall be responsible for storing all student, faculty, and
administrative records at the Sonoma main campus.
5. Sonoma shall supply NHI with sources for all textbooks that are
required as part of the AASMT Program.
6. Sonoma shall provide online delivery of all courses AASMT Program
through the Sonoma Platform to students enrolled in the AASMT Program.
7. Sonoma will hire qualified instructors to teach all of the online
courses offered in the AASMT Program.
NHI RESPONSIBILITIES
1. NHI shall promote the AASMT Program to NHI students and graduates.
2. NHI shall promptly forward all leads to Sonoma it obtains for the
AASMT Program.
FEE PERCENTAGE
Of the Tuition Fees earned and received by Sonoma for the AASMT Program from
students provided to Sonoma by NHI, Sonoma will subtract twenty-five percent
(25%) to cover direct expenses and the remainder will be the Net Fees pursuant
to Paragraph VI of the Agreement. Of
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the Net Fees, Sonoma shall pay NHI a Fee Percentage of twenty-five percent (25%)
and Sonoma shall receive a Fee Percentage of seventy-five percent (75%).
MARKETING FEE TO NHI
Sonoma shall pay NHI $2,500 per month for the term of this Agreement beginning
at the Program Commencement Date. This is in addition to the Fee Percentage
described above. At the first anniversary of the Program Commencement date,
however, Sonoma may elect to cease making this monthly payment at its sole
discretion provided Sonoma gives notice to NHI no less than sixty (60) days
prior to the first anniversary of the Program Commencement date and that the
restrictions contained in the Non-Compete provision shall immediately cease. NHI
will provide documentation for NHI's marketing activities periodically or upon
request by Sonoma.
PROGRAM COMMENCEMENT DATE
The Parties agree to use reasonable efforts to begin the first consortium AASMT
courses at a mutually agreed upon date as soon as practical after the Effective
Date.
ALTERNATE TERMINATION
The Parties agree that Sonoma may not teach a schedule, unless mutually agreed
otherwise, where there are less than five (5) students actually starting the
coursework. The Parties also agree that after six (6) months of operating the
AASMT Program, Sonoma may cease to offer the program if the number of students
in each actual start averages less than ten (10) students; provided, however,
that in the event of such cessation, the restrictions contained in the
Non-Compete provision shall immediately cease.
TUITION FEES AND COURSE BOOKS
The tuition fee for the AASMT Program offered is $8,000 in addition to student
fees which total approximately $250 per semester for a total of $500 for both
semesters. Books and supplies are approximately $500 for the entire AASMT
Program. Sonoma will provide NHI students and graduates with a $500 scholarship
provided that the scholarship complies with all regulatory restrictions and
provided that the scholarship be used solely against the published tuition
price. This scholarship shall only be available to NHI students and graduates.
And, NHI students and graduates shall be offered the best scholarship that
Sonoma offers any prospective student.
NHI RIGHT OF FIRST REFUSAL TO PURCHASE THE AASMT PROGRAM FROM SONOMA
Should Sonoma propose to accept a bona fide offer (a "Purchase Offer") from any
entity to purchase the AASMT Program, solely as a stand alone asset and not in
conjunction with the sale of any other assets of Sonoma, Sonoma shall promptly
deliver a notice (the "Notice") to NHI stating the terms and conditions of such
Purchase Offer including, without limitation, the assets to be sold or
transferred, the nature of such sale or transfer, the consideration to be paid,
and the name and address of the prospective purchaser or transferee. If the
Purchase Offer includes consideration other than cash, the cash equivalent value
of the non-cash consideration shall be determined by Sonoma in good faith and
included in the Notice to NHI. At any time within 30 days of receipt of the
Notice, NHI may, by giving written notice to Sonoma, elect to Purchase the
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AASMT Program from Sonoma at the Purchase Offer. Payment of the purchase price
by NHI to Sonoma shall be within 60 days after receipt of the Notice.
NON-COMPETE
NHI agrees that for a period from the Effective Date of this Agreement until one
(1) year after the termination of this Program, it will not offer an online
associates degree in massage therapy within any of the following counties:
Marin, Sonoma, Napa, Yolo, Sacramento, Xxxxxx, Contra Costa, Alameda, San
Xxxxxxx, Santa Xxxxx, Santa Xxxx and San Mateo. After the termination of this
Program, NHI has the right to immediately cancel the Restrictive Covenants set
forth in this Section by paying $1,000 for every month remaining in the
Restrictive Covenants.
NHI acknowledges and agrees that the restrictive covenants set forth in this
Section headed "Non-Compete" (the "RESTRICTIVE COVENANTS") are reasonable and
valid in geographical and temporal scope and in all other respects. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full force and effect, without regard to
the invalid or unenforceable parts.
If any court determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable for any reason, such court shall have the
power to modify such Restrictive Covenants or any part thereof and, in its
modified form, such Restrictive Covenants shall then be valid and enforceable.
Sonoma College, Inc National Holistic Institute, Inc.
By: By:
-------------------------------- -------------------------------
Name: Xxxx Xxxxxxx, Ph.D. Name: Xxxxx Xxxxx
Title: President Title: President
3
EXHIBIT B
PROGRAM SPECIFICATION - MASSAGE THERAPIST AND HEALTH EDUCATOR (MTHE) AT
SONOMA'S PETALUMA CAMPUS
PROGRAM
Massage Therapist and Health Educator (MTHE) program at Sonoma's Petaluma
campus.
NHI RESPONSIBILITIES
1. NHI shall offer potential students the ability to enroll in NHI's
Massage Therapist and Health Educator (MTHE) program and attend
classes at Sonoma's Petaluma campus.
2. NHI shall have primary responsibility for the administrative and
academic oversight of every aspect of the MTHE Program. NHI shall
perform enrollment and registration, financial aid administration,
record keeping, and grade reporting for all students.
3. NHI shall provide Sonoma with such NHI Content and support as NHI
reasonably deems necessary for Sonoma and its employees to provide
potential students with information about the MTHE Program and submit
an application form, which shall include without limitation marketing
material and the MTHE Program application forms.
4. NHI shall be responsible for storing all student, faculty, and
administrative records at NHI"s main campus. 5. NHI shall deliver all
courses of the MTHE Program. 6. NHI will hire qualified instructors to
teach all of the courses offered in the MTHE Program.
SONOMA RESPONSIBILITIES
1. Sonoma shall promptly forward all potential students it obtains for
the MTHE Program to NHI.
FEE PERCENTAGE
Of the Tuition Fees earned and received by NHI for the MTHE Program from
students provided to NHI by Sonoma, NHI will subtract fifty percent (50%) to
cover direct expenses and the remainder will be the Net Fees pursuant to
Paragraph VI of the Agreement. Of the Net Fees, NHI shall pay Sonoma a Fee
Percentage of twenty-five percent (25%) and NHI shall receive a Fee Percentage
of seventy-five percent (75%).
FACILITIES FEE TO SONOMA
NHI shall pay Sonoma a fee for usage of their facilities of $50 per month per
student. If the student was not in school the entire month, NHI shall pay Sonoma
a pro rata percentage of this fee. Sonoma agrees to allow NHI to paint and
decorate the classroom(s) to be used with prior approval from Sonoma on colors
and style.
4
PROGRAM COMMENCEMENT DATE.
The Parties agree to use reasonable efforts to begin the first consortium MTHE
courses at Sonoma's Petaluma campus at a mutually agreed-upon date as soon as
practical after receiving all necessary approvals.
TUITION FEES AND COURSE BOOKS
The Tuition Fee for the MTHE Program offered is $12,175.
ALTERNATE TERMINATION
The Parties agree that NHI may not teach a schedule, unless mutually agreed
otherwise, where there are less than five (5) students actually starting the
coursework. The Parties also agree that after six (6) months of operating the
MTHE Program in Petaluma, NHI may cease to offer the program if the number of
students in each actual start averages less than ten (10) students; provided,
however, in the event of such cessation, the restrictions contained in the
Non-Compete provision shall immediately cease.
TRANSITION PERIOD
The Parties will mutually agree on the timing and logistics of the transition of
Sonoma's residential Petaluma massage therapy students to NHI's program.
NON-COMPETE
Sonoma agrees that for a period from the Effective Date of this agreement until
one (1) year after the termination of this Program, the only program it will
offer in massage therapy in the counties of Marin, Sonoma, Napa, Yolo,
Sacramento, Xxxxxx, Contra Costa, Alameda, San Xxxxxxx, Santa Xxxxx, Santa Xxxx
and San Mateo will be the Associate of Applied Science in Massage Therapy
(AASMT) online program.
Sonoma acknowledges and agrees that the restrictive covenants set forth in this
Section headed "Non-Compete" (the "RESTRICTIVE COVENANTS") are reasonable and
valid in geographical and temporal scope and in all other respects. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full force and effect, without regard to
the invalid or unenforceable parts.
If any court determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable for any reason, such court shall have the
power to modify such Restrictive Covenants or any part thereof and, in its
modified form, such Restrictive Covenants shall then be valid and enforceable.
Sonoma College, Inc National Holistic Institute, Inc.
By: By:
-------------------------------- --------------------------------
Name: Xxxx Xxxxxxx, Ph.D. Name: Xxxxx Xxxxx
Title: President Title: President
5
EXHIBIT C
PROGRAM SPECIFICATION - MASSAGE THERAPIST AND HEALTH EDUCATOR (MTHE) AT
SONOMA'S SAN FRANCISCO CAMPUS
PROGRAM
Massage Therapist and Health Educator (MTHE) program at Sonoma's San Francisco
campus.
This Program will be separated into two segments, Part I and Part II. Part I
shall apply to the time period from the Effective Date of this Agreement until a
date mutually agreed upon by both Parties to begin Part II, at which point NHI's
MTHE Program would be offered at Sonoma's San Francisco Campus.
PART I - MTHE AT NHI'S EMERYVILLE CAMPUS
NHI RESPONSIBILITIES
1. NHI shall offer potential students the ability to enroll in NHI's
Massage Therapist and Health Educator (MTHE) program and attend
classes at NHI's Emeryville campus.
2. NHI shall have primary responsibility for the administrative and
academic oversight of every aspect of the MTHE Program. NHI shall
perform enrollment and registration, financial aid administration,
record keeping, and grade reporting for all students.
3. NHI shall provide Sonoma with such NHI Content and support as NHI
reasonably deems necessary for Sonoma and its employees to provide
potential students with information about the MTHE Program and submit
an application form, which shall include without limitation marketing
material and the MTHE Program application forms.
4. NHI shall be responsible for storing all student, faculty, and
administrative records at NHI"s main campus. 5. NHI shall deliver all
courses of the MTHE Program. 6. NHI will hire qualified instructors to
teach all of the courses offered in the MTHE Program.
SONOMA RESPONSIBILITIES
1. Sonoma shall cease to enroll new students in its massage therapy
certificate program at its San Francisco campus within sixty (60) days
of the Effective Date. Sonoma will offer the NHI MTHE program as the
prerequisite for Sonoma's AASMT program and NHI will work with Sonoma
to ensure that Sonoma maintains its authority to offer the AASMT
program.
2. Sonoma shall promptly forward all potential students it obtains for
the MTHE Program to NHI.
FEE PERCENTAGE
Of the tuition revenue earned by NHI for the MTHE Program from students provided
to NHI by Sonoma, NHI will subtract fifty percent (50%) to cover direct expenses
and the remainder will be the Net Fees pursuant to Paragraph VI of the
Agreement. Of the Net Fees, NHI shall pay Sonoma a Fee Percentage of twenty-five
percent (25%) and NHI shall receive a Fee Percentage of seventy-five percent
(75%).
6
PART II - MTHE AT SONOMA'S SAN FRANCISCO CAMPUS
NHI RESPONSIBILITIES
1. NHI shall offer potential students the ability to enroll in NHI's
Massage Therapist and Health Educator (MTHE) program and attend
classes at Sonoma's San Francisco campus.
2. NHI shall have primary responsibility for the administrative and
academic oversight of every aspect of the MTHE Program. NHI shall
perform enrollment and registration, financial aid administration,
record keeping, and grade reporting for all students.
3. NHI shall provide Sonoma with such NHI Content and support as NHI
reasonably deems necessary for Sonoma and its employees to provide
potential students with information about the MTHE Program and submit
an application form, which shall include without limitation marketing
material and the MTHE Program application forms.
4. NHI shall be responsible for storing all student, faculty, and
administrative records at NHI"s main campus. 5. NHI shall deliver all
courses of the MTHE Program. 6. NHI will hire qualified instructors to
teach all of the courses offered in the MTHE Program.
SONOMA RESPONSIBILITIES
1. Sonoma shall promptly forward all potential students it obtains for
the MTHE Program to NHI.
FEE PERCENTAGE
The Fee Percentage for Part II will be mutually agreed upon by both Parties, and
both Parties intend for the Fee Percentage to be similar to the following: Of
the tuition revenue earned and received by NHI for the MTHE Program from
students provided to NHI by Sonoma, NHI will subtract fifty percent (50%) to
cover direct expenses and the remainder will be the Net Fees pursuant to
Paragraph VI of the Agreement. Of the Net Fees, NHI shall pay Sonoma a Fee
Percentage of twenty-five percent (25%) and NHI shall receive a Fee Percentage
of seventy-five percent (75%). In addition, the Fee Percentage for Part II will
also include terms to be mutually agreed upon to protect NHI's Emeryville campus
from cannibalization.
FACILITIES FEE TO SONOMA
NHI shall pay Sonoma a fee for usage of their facilities of $50 per month per
student. If the student was not in school the entire month, NHI shall pay Sonoma
a pro rata percentage of this fee. Sonoma agrees to allow NHI to paint and
decorate the classroom(s) to be used with prior approval from Sonoma on colors
and style.
ALTERNATE TERMINATION
The Parties agree that NHI may not teach a schedule, unless mutually agreed
otherwise, where there are less than five students actually starting the
coursework. The Parties also agree that after six (6) months of operating the
MTHE Program in San Francisco, NHI may cease to offer the program if the number
of students in each actual start averages less than 10 students; provided,
however, in the event of such cessation, the restrictions contained in the
Non-Compete provision shall immediately cease.
7
TERMS APPLICABLE TO BOTH PART I AND PART II
PROGRAM COMMENCEMENT DATE.
The Program Commencement Date for Part I shall begin at the Effective Date of
this Agreement. The Program Commencement Date for Part II shall begin on a date
mutually agreed upon by both Parties provided that it is after all required
approvals have been received and after the Program Commencement Date for the
MTHE Program in Petaluma.
TUITION FEES AND COURSE BOOKS
The tuition fee for the MTHE Program offered is $12,175.
NON-COMPETE
Sonoma agrees that for a period from the Effective Date of this agreement until
one (1) year after the termination of this Program, the only program it will
offer in massage therapy in the counties of Marin, Sonoma, Napa, Yolo,
Sacramento, Xxxxxx, Contra Costa, Alameda, San Xxxxxxx, Santa Xxxxx, Santa Xxxx
and San Mateo will be the Associate of Applied Science in Massage Therapy
(AASMT) online program.
Sonoma acknowledges and agrees that the restrictive covenants set forth in this
Section headed "Non-Compete" (the "RESTRICTIVE COVENANTS") are reasonable and
valid in geographical and temporal scope and in all other respects. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full force and effect, without regard to
the invalid or unenforceable parts.
If any court determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable for any reason, such court shall have the
power to modify such Restrictive Covenants or any part thereof and, in its
modified form, such Restrictive Covenants shall then be valid and enforceable.
Sonoma College, Inc National Holistic Institute, Inc.
By: By:
---------------------------------- ---------------------------------
Name: Xxxx Xxxxxxx, Ph.D. Name: Xxxxx Xxxxx
Title: President Title: President
8
