EX-10.4
CONSORTIUM AGREEMENT
This Academic Consortium Agreement made as of the 3rd day of
August 2004 (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 Casa Loma
College, Inc., a California corporation, having its principal place of business
at 0000 Xxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 ("CASA" 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 wish to form an academic consortium (the
"CONSORTIUM") to provide select Sonoma operated Programs at Casa's campuses and
select Casa operated Programs at Sonoma's campuses in the form of "satellite
programs" authorized and approved by the State of California's Bureau of Private
Post-secondary Vocation Education ("BPPVE"); and
WHEREAS, the Parties agree that the Consortium will initially
focus on providing Sonoma's MRI Technologist Program at campuses owned and/or
operated by Casa.
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 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. During the Term, the Parties shall cooperate with
each other to identify certain Programs, that are currently offered by
one Party through its facilities but not by the other Party, that the
Parties mutually agree would be in their respective best interests to
also make available through the other Party's facilities as a satellite
program ("SATELLITE PROGRAM").
B. For each Program identified pursuant to Paragraph
II. A above, 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 Satellite Program ("RESPONSIBILITIES"), any Content, to be delivered
to the other Party in connection with the Satellite Program
("DELIVERABLES"), and the effective commencement date for the Satellite
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.
Each party recognizes that time is of the essence with respect to all
aspects of this agreement and the subject matter hereof.
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
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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 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 extent 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 Casa 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
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Content or Sonoma Platform is granted to Casa except as set forth in this
Agreement. Likewise, any Content provided by Casa to Sonoma pursuant to
the Agreement ("CASA CONTENT") and all associated intellectual property
rights are, and will remain, the sole and exclusive property of Casa, and
no license, right, title, interest in and/or to the Casa 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 payable by or on
behalf of a student in connection with a Satellite Program (collectively,
the "TUITION FEES"), shall be collected by the Party that maintains
administration and academic oversight of the Satellite Program and
associated 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 Net Fees received by the Program Administrator in
connection with the Satellite Program, such percentage shall be mutually
agreed between the Parties and set forth in the applicable Program
Specification. "NET FEES" means the Tuition Fees actually received by the
Program Administrator 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.
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 Satellite Program; provided,
however the Tuition Fee and any other fees shall be set forth in the
Program Specification. The Program Administrator may, in its sole
discretion, amend the Tuition Fee; provided, however, that it shall not
change the Tuition Fee for any academic semester that has already
commenced, and that it shall provide the other Party with sixty (60) days
advance notice, in writing, prior to making any such change.
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 a 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
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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%).
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
is authorized by the state in which its campuses are located to provide
each of the Program(s) and Satellite Program(s) set forth on a Program
Specification in the manner required by this Agreement.
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 CASA, 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.
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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 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.
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").
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.
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 by the Licensee requires the written
consent of the Licensor. Any transfer by the Licensor of the rights
licensed in this Agreement shall be subject to all provisions of the
present Agreement and the Licensor shall so notify the Licensee.
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.
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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 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
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If to Casa:
0000 Xxx Xxxx Xxxx., #000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, CEO
Fax: (000) 000-0000
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 Casa Loma College, Inc.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxx
----------------------- -----------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxx
Title: President Title: Chief Executive Officer
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