EX 10.8
CONSORTIUM AGREEMENT
This Academic Consortium Agreement made as of the 21st day of
October 2004 (the "Effective Date") by and between Sonoma College, Inc., a
California corporation having its principal place of business at 0000 Xxxxx
Xxxxx Xxxxxxxxx. Xxxxx000, Xxxxxxxx Xxxxxxxxxx 00000 ('"Sonoma") and Biohealth
College, Inc., a California corporation, having its principal place of business
at 0000 X. 0xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 ('"Biohealth" 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 Biohealth'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 this Consortium will focus on
providing Sonoma's Associate of Applied Science degree in Homeland Response and
Emergency (HREM) program at a campus owned and/or operated by Biohealth.
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 ("Delrverables"), and me 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, worid-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 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 Biohealth 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 Biohealth except as set forth in
this Agreement. Likewise, any Content or Platform provided by Biohealth to
Sonoma pursuant to the Agreement ("Biohealth Content") and all associated
intellectual property rights are, and will remain, the sole and exclusive
property of Biohealth, and no license, right, title, interest in and/or to the
Biohealth 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 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
BIOHEALTH, EXCEPT THAT "THE SONOMA PLATFORM" AS CONTAINED IN THE DELIVERABLES
AND STANDING ALONE, WELL 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 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 V13 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.
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, 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.
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 ofJAMS/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 Biohealth:
0000 X. 0xx Xxxxxx, Xxxxx 000 Xxx Xxxx,
CAPS 134 Attention: Xxx Xxxxxxx, 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, me ' Biohealth College, Inc.
BY: /s/ BY: /s/
Name: Xxxx Xxxxxxx, Ph.D. Name: Xxx Xxxxxxx Title: President
Title: Chief Executive Officer
