Exhibit 10.2
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC.
AND THE COLLEGE OF INSURANCE, FOR THE OFFERING OF
INTERACTIVE TELEVIDEO COURSES
W I T N E S S E T H
AGREEMENT made this 16th of September, 1997, between The College of
Insurance, with offices located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter "TCI"), and Educational Video Conferencing Inc., (hereinafter
"EVC"), with offices located at 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, TCI is an institution of higher learning duly
certified by the Education Department of the State of New York and accredited by
the Middle States Association to offer undergraduate and graduate courses, and
WHEREAS, EVC is a domestic corporation engaged in the business
of providing access to such courses to consumers by way of Interactive
Televideo, and
WHEREAS, TCI and EVC wish to enter into a mutually beneficial
agreement whereby EVC will provide access to TCI courses to such consumers,
NOW, THEREFORE in consideration of $10.00 in good funds, as
well as the mutual covenants contained herein, the parties hereby agree as
follows:
1. a.) EVC shall have the right, for the duration of this agreement and
any renewal hereof, to offer all accredited college courses and non-degree
courses offered by TCI via Interactive Televideo/Distance Learning (hereinafter
"ITV/DL") and Interactive Multimedia CD ROM (hereinafter "IM/CD ROM"),
commencing with the Spring Semester, 1998.
b.) For the purposes of this agreement, ITV/DL shall be defined as
live, two way video conferencing, either over desktop computers or video
conferencing room systems, as the case may be, in which the student can see and
hear the professor/instructor and the professor/instructor can see and hear the
individual student. ITV/DL also shall include one-way video and two-way audio
distance learning.
c.) For the purposes of this agreement, IM/CD ROM shall be defined
as pre-packaged content contained on laser disks playable on desktop computers
equipped with CD ROM drives or laser disk players.
d.) Unless TCI and EVC agree otherwise in writing, the minimum class
size for the offering of an ITV/DL course shall be as follows: FIFTEEN (15)
students for the first year of this agreement; SIXTEEN (16) students for the
second year of this agreement; SEVENTEEN (17) students for the third year of
this agreement; EIGHTEEN (18) students for the fourth year of this agreement;
and NINETEEN (19) students for every year thereafter.
2. EVC will provide all hardware (except personal computers,
modems, keyboards and monitors), software, accessories and telecommunications
equipment (collectively referred to as "equipment") necessary to provide access
for TCI courses to ITV/DL students. Students taking courses on desk-top
computers must have computers with the technological capacity to receive EVC's
interactive transport signal and function as an ITV/DL desk-top system and/or be
IM/CD ROM enabled. The parties acknowledge that it is the goal of EVC to solicit
students from corporations with substantial tuition
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS EXHIBIT
1
reimbursement, and that EVC shall address all student use equipment issues with
the corporate clients. In any event, TCI shall not be responsible for the cost
of any equipment whatsoever.
3. a.) EVC is responsible for costs for marketing, advertising, and
promotion regarding EVC's offering of access to TCI courses. Unless otherwise
agreed. all existing brochures, catalogues, course schedules and descriptions,
posters, etc., will be provided to EVC by TCI.
b.) TCI will, whenever feasible, include ITV/DL and IM/CD ROM
courses, offered through EVC, in any advertisements, promotions, marketing
plans, etc., which may be directed at the target market.
c.) EVC will provide TCI an annual report of the percentage of
EVC's operating budget utilized for marketing TCI courses.
4. TCI assumes no responsibility or cost for obtaining or providing
telecommunication signal transport for video conferenced courses.
5. TCI will be responsible for installing and maintaining adequate
telephone lines for teaching stations. Said teaching stations will be installed
and paid for by EVC. All teaching stations shall remain the exclusive property
of EVC.
6. All equipment supplied by EVC is the sole and exclusive property
of EVC, including but not limited to any and all patents, copyrights and
trademarks, if any, associated therewith. All classroom, course and program
materials or other information supplied by TCI, and all rights and interests in
said materials will remain the sole and exclusive property of TCI.
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of televideo equipment supplied to TCI for ITV/DL courses.
b.) EVC will provide reasonably prompt service for repair or
replacement of defective interactive televideo equipment and software as
necessary.
c.) TCI will be responsible for the prompt repair and/or
replacement of interactive televideo equipment located at TCI which may be
damaged through improper or unauthorized use.
d.) TCI is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment which is lost or stolen while in TCI's custody
and control.
8. Neither party shall utilize the other's name or any associated
names, trademarks, copyrights, etc., without prior written consent. Such
permission shall not be unreasonably denied.
9. a.) EVC will provide initial faculty development reasonably required
for the offering of TCI courses through EVC. Thereafter, TCI agrees to provide
faculty or personnel who have received said initial training to assist EVC in
training any new faculty or personnel and in providing any updated training
which may from time to time become necessary hereunder.
b.) TCI shall be responsible for obtaining the services of all
faculty participating in courses offered through EVC, including but not limited
to said faculty's salary, benefits (if any) and verification of qualifications.
EVC assumes no responsibility for any costs associated therewith.
2
10. EVC is solely responsible to provide site locations, if any, for
ITV/DL students to participate in TCI courses. TCI assumes no responsibility for
obtaining or maintaining said sites, nor for any rent or other costs associated
therewith.
11. EVC is not responsible for curriculum, course content, faculty
qualifications, course materials or any other aspect of the academic content of
any courses offered hereunder. However, TCI acknowledges the expertise of EVC in
delivering ITV/DL courses and agrees to be receptive to EVC input as to
modification of course content and method of delivery consistent with required
academic standards.
12. EVC agrees to make every reasonable effort to maintain its
equipment in good working order. However, EVC is not responsible for service or
repair delays or interruption of service caused by strikes, labor actions, power
outages (other than those limited to site locations alone), acts of God or other
matters beyond EVC's control.
13. TCI hereby acknowledges that the ITV/DL and IM/CD ROM programs
are targeted toward the non-traditional student market and therefore agrees to
offer ITV/DL courses at dates and times appropriate to the target market, but
only between the hours of 8:00 a.m. and 11:00 p.m., seven days per week, unless
otherwise mutually agreed upon.
14. a.) The parties hereby acknowledge that this agreement is not
intended by the parties to facilitate the offering of college degrees, degree
programs or a course of study which may lead to a degree or certificate, and
neither party shall represent or advertise that the ITV/DL and/or IM/CD ROM
programs shall result in the awarding of degrees.
b.) In the event that, after offering individual classes, the
parties desire to modify the program in order to offer degrees or degree
programs through ITV/DL and/or IM/CD ROM, the parties agree that appropriate
accreditation for degree programs will be sought from the Middle States
Association of Colleges and Schools, so as not to negatively impact on TCI's
current accreditation with Middle States.
c.) In the event that degrees or degree programs are offered
pursuant to sub paragraph 14 b. above, then and in that event all other
provisions of this agreement shall apply with equal force and effect to said
courses or classes offered in conjunction therewith in accordance with necessary
accrediting requirements.
d.) TCI shall attempt to obtain and/or maintain all New York State
Department of Education, Middle States Association, and any other accreditation
necessary to the offering of college courses and credits under the applicable
law. Should TCI lose its accreditation at any time during the term of this
agreement or any renewal hereof, EVC shall have the right to cancel this
contract at the end of the semester in progress, if applicable, or immediately
if no semester is underway.
15. Administrative Functions
a.) TCI shall be responsible for all of its own administrative
functions (admissions, academic advising, registration, financial aid, etc.)
associated with the offering of ITV/DL and/or IM/CD ROM courses through EVC.
b.) TCI shall hire, subject to EVC's approval, an admissions
coordinator to work at TCI on a part time or full time basis as registration
demand requires. This employee shall be responsible for coordinating all aspects
of the admission process performed by TCI employees for students applying to TCI
under this contract. The employee shall report to both to the Xxxx of Admissions
at TCI and the
3
President of EVC. EVC shall be responsible for FIFTY (50%) PERCENT of said
employee's salary and benefits. TCI shall pay the employee and shall deduct
FIFTY (50%) PERCENT of said employee's salary and benefits from its cash
disbursement to EVC on a monthly basis.
c.) TCI will provide all necessary administrative forms,
applications, catalogues, etc., and written instructions to EVC in advance of
marketing courses to any organization and it is understood by the parties that
EVC is merely a conduit and assumes no liability whatever for the accuracy or
correctness of the information in said forms provided by TCI nor for return of
any of the aforesaid documents to TCI.
16. Fees
a.) TCI shall pay to EVC, on the 10th day of each month, [ *
] of the gross tuition actually collected by TCI the preceding
month, from any source whatever, from or on behalf of any student registered for
and attending accredited college degree courses being offered through EVC's
programs at locations outside of Manhattan, said payments to commence the month
immediately following the collection of any such tuition by TCI.
b.) TCI shall pay to EVC, on the 10th day of each month, [ *
] of the gross tuition actually collected by TCI the preceding
month, from any source whatever, from or on behalf of any student registered for
and attending accredited college degree courses being offered through EVC's
programs at locations in Manhattan, said payments to commence the month
immediately following the collection of any such tuition by TCI.
c.) TCI shall pay to EVC, on the 10th day of each month,
[ * ] of the gross tuition actually collected by TCI the
preceding month, from any source whatever, from or on behalf of any student
registered for and attending accredited college degree courses being offered
through EVC's programs at locations in Manhattan, who have been registered in
accredited college courses at TCI within the past two years, said payments to
commence the month immediately following the collection of any such tuition by
TCI. Notwithstanding anything to the contrary contained herein, the minimum
class size shall be in accordance with paragraph 1d. of this agreement.
d.) TCI shall pay to EVC, on the 10th day of each month, [ *
] of the gross tuition actually collected by TCI the preceding
month, from any source whatever, from or on behalf of any student registered for
and attending non-college degree courses with tuition fees reasonably comparable
to average accredited college degree courses (not less than [ * ] for 40 hours
of instruction), said payments to commence the month immediately following the
collection of any such tuition by TCI.
e.) TCI shall pay to EVC, on the 10th day of each month, [ *
] of the gross tuition actually collected by TCI the preceding
month, from any source whatever, from or on behalf of any student registered for
and attending non-college degree courses with tuition fees of approximately $400
for 30 hours of instruction, said payments to commence the month immediately
following the collection of any such tuition by TCI. In addition, TCI shall
charge and collect a video conferencing fee of $100 per course per person which
TCI shall pay to EVC, said payments to commence the month immediately following
the collection of any such video conferencing fees by TCI. Notwithstanding
anything to the contrary contained herein, the minimum class size shall be at
least 25 students for non-college degree courses with tuition fees of
approximately $400 for 30 hours of instruction.
f.) TCI shall pay to EVC, on the 10th day of each month, [ *
] of the gross tuition actually collected by TCI the preceding
month, from any source whatever, from or on
[*] Confidential Portion
4
behalf of any student registered in TCI courses via ITV/DL in its already
established centers in Bermuda and Puerto Rico.
g.) EVC shall pay for [ * ] of all costs
for developing IM/CD ROM courses and programs. EVC shall receive [ *
] of the Revenue for IM/CD ROM courses and programs and TCI shall
receive [ * ] of the Revenue for IM/CD ROM courses and programs
until such time as EVC recoups its actual out of pocket expenses, including but
not limited to labor costs, in the development of said IM/CD ROM courses and
programs. Thereafter EVC shall receive [ * ] of the Revenue and TCI
shall receive [ * ] PERCENT of the Revenue. Costs associated with
development of said IM/CD ROM courses and programs are subject to audit and
review by TCI.
h.) If this agreement is terminated pursuant to the terms and
conditions contained in paragraph 23 e. and TCI desires to continue to use,
market and profit from IM/CD ROM courses, produced by EVC, if any, then and in
that event, EVC shall receive [ * ] of the Revenue for IM/CD
ROM courses and programs and TCI shall receive [ * ] of the
Revenue for IM/CD ROM courses and programs until such time as EVC recoups its
actual out of pocket expenses, including but not limited to labor costs, in the
development of said IM/CD ROM courses and programs. Thereafter EVC shall receive
[ * ] of the Revenue and TCI shall receive [ *
] of the Revenue.
i.) EVC shall have the right, on a semi-annual basis, to examine
the books and records of TCI, pertaining to all students taking courses through
EVC, in order to audit and adjust any accounts due and owing the respective
parties.
j.) Commencing on February 10, 1998, and continuing on the 10th day
of every month thereafter, TCI will supply EVC with a list of all students who
have applied to TCI, and/or registered, for courses through EVC, the said list
to include as available, each student's name, address, telephone number, social
security number, registration, financial aid loans and payment status.
k.) EVC shall require that each student registering for a course
offered through EVC, sign a waiver and release granting EVC access to said
student's records, said waiver and release form to be provided to TCI by EVC,
the format of which shall be subject to TCI's approval, which approval shall not
be unreasonably withheld.
l.) Within THIRTY (30) DAYS of the completion of each Fall and
Spring Semester, TCI shall Present to EVC, in writing, any requests for
adjustments or credits on monies already paid to EVC, which credits or
adjustments have been made necessary by an EVC student having dropped a course,
bounced a check, etc. EVC will credit any such valid adjustment to TCI's account
in three equal installments over the three months immediately following such
request by TCI.
m.) In the event that TCI should independently provide and is the
principle procuring cause for a suitable corporate client that contracts with
EVC for TCI courses, and which meets the minimum tuition reimbursement standards
as well as all other reasonable requirements for the offering of courses through
EVC, anything to the contrary notwithstanding, EVC shall be entitled to only
FIFTY FIVE(55%) PERCENT of the adjusted gross tuition as heretofore defined.
17. a.) TCI will provide a minimum of two (2) dedicated rooms which
will accommodate teaching stations in order to facilitate all ITV/DL courses
emanating from its campus and will grant EVC, its agents and subcontractors,
reasonable access to said facilities as is required for proper installation,
operation, maintenance and repair of all equipment contemplated herein,
including but not limited to ITV/DL equipment and telephone lines.
[*] Confidential Portion
5
b.) Rooms at TCI equipped for ITV/DL may not be used by the college
for any class, function or other purpose, without the prior written permission
of EVC.
c.) EVC equipment may be used by TCI for purposes which do not
infringe on the rights of EVC hereunder, or tend to impact negatively on the
success of the program contemplated by this agreement, with the prior written
permission of EVC, whenever the said equipment is not in use by EVC.
d.) TCI may use EVC equipment to video conference courses from TCI
in New York to TCI centers in Bermuda and Puerto Rico pursuant to paragraph 16
f. of this agreement when said equipment is not scheduled for use by EVC.
18. TCI Public Relations Department will provide reasonable cooperation
with EVC in promoting TCI ITV/DL course offerings.
19. TCI and EVC will, whenever possible, cooperate in applying for and
obtaining, any grants, awards, stipends, fellowships, etc., which are mutually
beneficial to the parties.
20. TCI shall maintain academic control over all courses and will be
receptive to EVC input as to ITV/DL presentation.
21. TCI will assign at least one person who at all times will act as
liaison between TCI and EVC.
22. TCI agrees to offer to ITV/DL students, taking courses through EVC,
any and all grants, discounts, etc., which are offered to other TCI students.
23. Term of Agreement
a.) The basic term of this agreement shall be FIVE (5) YEARS.
b.) The parties hereby acknowledge the necessity for allowing
ITV/DL students continuity and ongoing access to courses and programs.
c.) In light of the foregoing, the parties agree that commencing
June 1, 1998, and every June 1st thereafter, this agreement shall automatically
be extended for an additional period of ONE (1) YEAR, subject to the conditions
hereinafter contained.
d.) In the event that either party should desire not to
automatically extend this agreement, then and in that event, such party shall so
notify the other in writing, by Certified Mail, Return Receipt Requested, no
later than April 1 of any given year, after which the agreement will not be
extended for an additional ONE (1) YEAR, but will have only the Four (4) YEARS
of the existing term remaining.
e.) Not withstanding anything to the contrary contained herein,
the parties agree to evaluate the performance of the EVC ITV/DL programs at the
end of the second year of this agreement. If, at such time, EVC's ITV/DL
programs do not objectively meet TCI's policies for teaching and learning within
"Acceptable Parameters", EVC will have six months to remedy the problem(s).
Acceptable Parameters for all EVC courses and/or programs are defined as up to
20% below the median of the following evaluative measures: student evaluations
of the course(s) and/or programs and a generally accepted measure of learning
for the course(s) and/or programs in question. At the end of said
6
six month period, the parties agree to reevaluate the performance of the ITV/DL
programs. If the collective learning outcomes remain more than 20% below the
median, TCI may at its option cancel this contract with EVC in writing within
thirty days, said termination to be effective at the end of the then current
academic year. EVC will not be held to a higher standard than assessment
standards utilized for on campus courses and/or programs in the same academic
discipline. The policies shall be the same as for those courses delivered on
campus with reference to student evaluations and a reasonable comparison of
learning outcomes when comparing interactive televideo with classroom based
instruction.
24. Non-Disclosure and Non-Compete
a.) TCI acknowledges that by entering into this agreement it
will be gaining access to certain technology, procedures and markets which are
the property and trade secrets of EVC. TCI agrees that, for the duration of this
agreement and any extensions hereof, as well as for a period of ONE (1) YEAR
immediately following any termination or expiration thereof, TCI will not
independently video conference its college courses or programs under this
contract to EVC clients, TCI will not disclose, directly or indirectly, to any
person, corporation or entity, any of the procedures, technology, software,
hardware, etc., employed by EVC in providing Interactive Computer or Televideo
Communication services in connection herewith, and will not knowingly grant
access for any competitor or potential competitor to view, examine, copy and/or
photograph, any of the procedures (including training manuals, if any),
technology, equipment, software, etc., as referred to above, without the prior
written permission of EVC. TCI hereby acknowledges that any violation of this
section will cause irreparable harm to EVC.
b.) TCI shall have the right to offer courses via ITV/DL
and/or IM/CD ROM on its own or with other partners, to any organization not
under contract with EVC. In such event, EVC shall not have any obligation to
market, provide any services or equipment, permit the use of EVC's equipment, or
incur any costs in connection with such offerings.
c.) The parties mutually agree that they will not disclose to
any person, corporation or entity the terms of this agreement without prior
written consent.
25. Damages Limitation
a.) It is expressly agreed and understood that neither party
shall be liable for incidental, special or consequential damages for any breach
or violation of this agreement.
26. The foregoing constitutes the entire agreement between the
parties, and any other agreements or representations, whether verbal or written,
if not contained herein, are void, of no effect, and are not binding upon the
parties.
27. No valid modification, amendment, or deletion may be made to
this agreement except in writing and executed by the parties in substantially
the same manner as this agreement.
28. Any and all notices required hereunder shall be by Certified
Mail, Return Receipt Requested, to each party's last known address and shall be
deemed given at the time of mailing.
29. If any portion of this agreement shall be found to be void,
voidable or unenforceable, it shall not effect the validity of the remainder of
the agreement.
30. This agreement shall be binding on the respective parties'
heirs, successors, and assigns.
31. The parties agree that any disputes or disagreements arising
hereunder or in connection
7
herewith shall be settled by binding arbitration before the American Arbitration
Association at their offices located in White Plains, New York, and that any
judgment awarded thereunder may be entered in any court of appropriate
jurisdiction, and will have full force and effect therein.
32. This agreement shall be construed in accordance with, and
governed by, the laws of the State of New York.
In witness whereof the parties have hereunto set their hands and seal
the date first appearing above.
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xxxx X. XxXxxxx
---------------------------------
Xxxx X. XxXxxxx, Ph.D., President
THE COLLEGE OF INSURANCE
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, Ph.D., President
