Exhibit 10.55
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC.
AND AMERICAN ACADEMEY OF PROFESSIONAL CODERS, INC. FOR THE
OFFERING OF INTERACTIVE VIDEO CONFERENCED COURSES
W I T N E S S E T H
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AGREEMENT made this 1st day of June 2000, between American Academy of
Professional Coders, Inc. with offices located at, 309 West 700th South, Salt
Lake City, Utah 84101 (hereinafter referred to as "AAPC"), and Educational Video
Conferencing Inc., (hereinafter "EVCI"), with offices located at 35 East Grassy
Sprain Road, Suite 204, Yonkers, New York 10710.
WHEREAS, AAPC is a Utah corporation engaged in the business of
offering non-technical and technical programs and certifications along with
non-credit courses and \ or programs, and,
WHEREAS, EVCI is a Delaware corporation engaged in the business of
providing access to such courses both to corporations and consumers by way of
synchronous and interactive video conferencing and asynchronous distance
learning,
WHEREAS, AAPC and EVCI wish to enter into a mutually beneficial
agreement whereby EVCI will provide to such businesses and consumers, access to
AAPC courses and programs.
WHEREAS, AAPC will enhance their own delivery mechanism to their own
client base by using the EVCI technology platform,
WHEREAS, both companies will co-market each other's service as
described herein,
NOW, THEREFORE in consideration the mutual promises and covenants
contained herein, the parties hereby agree as follows:
1. a.) EVCI shall have the right, for the duration of this agreement and
any renewal hereof, to offer all training programs, certificate programs and
courses offered by AAPC, except as provided for herein, via synchronous and
asynchronous Interactive Distance Learning (hereinafter "IDL") commencing upon
the execution of this agreement. AAPC shall have the right to co-market EVCI
programs to their clients interested in receiving EVCI college and \ or training
programs that are not in conflict with AAPC offerings under the terms contained
herein. To avoid misunderstanding AAPC shall identify any client to whom they
intend to co-market EVCI programs prior to any contact thereof and secure
written authority from EVCI to proceed.
b.) For the purposes of this agreement, IDL shall be defined as two
way interactive distance learning delivered over video equipped desktop
computers, video conferencing or video conferencing room systems, as the case
may be, in which the student can see and hear the professor/instructor and the
professor/instructor can see and hear the individual student. IDL also shall
include one-way video, two-way audio distance learning and asynchronous delivery
systems.
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c.) Unless AAPC and EVCI agree otherwise in writing, the minimum
class size for the offering of an IDL course shall be ten (10) students or less
providing that the class generates a minimum of $5,500 gross revenue per day.
2. EVCI will make available, all hardware software, and video
conferencing equipment (collectively referred to as "equipment") necessary to
provide access for AAPC courses to EVCI IDL students. Students taking IDL
courses on desktop computers must have computers capable of being video enabled
and function as IDL desktop systems over the EVCI network. The parties
acknowledge that it is the primary goal of EVCI to solicit students from
corporations, governmental agencies, institutions (hereinafter "Institutional
Employers") and through consumer channels. EVCI shall address all student
equipment issues with the Institutional Employers and their employees as well as
student equipment issues arising from the consumer market. In any event, AAPC
shall not be responsible for the cost of any equipment whatsoever at EVCI
Institutional Employers' locations and/or EVCI student's homes except as
containing herein. Such equipment will be supplied based on student and \ or
"Institutional Employer" commitment to a minimum amount of courses and tuition's
as set forth in individual agreements with the "Institutional Employers." In the
event that AAPC deploys EVCI equipment to their clients, AAPC shall be
responsible to pay for all equipment. Equipment deployed by AAPC must meet the
standards set by EVCI in-order to function on the EVCI network. EVCI assumes no
responsibility for equipment that does not meet its specs.
3. EVCI is responsible for costs for marketing, advertising, and
promotion regarding EVCI's offering of access to AAPC courses. AAPC will be
responsible for all costs for marketing, advertising, and promotion regarding
EVCI's offering to established AAPC clients. Unless otherwise agreed, AAPC will
provide 100 brochures, catalogues, course schedules, program and course
descriptions, posters, etc., to EVCI for distribution to employees of EVCI's
corporate, governmental and institutional clients promoting the AAPC programs
and courses offered through EVCI. AAPC will provide such promotional information
and course schedules on computer disc to enable EVCI to reproduce the
information for marketing and enrollment purposes including publication on the
EVCI web site.
4. EVCI shall provide teaching facilities for AAPC teachers. Said
facilities shall be located in Yonkers, New York or such other location as
determined by EVCI. AAPC shall be responsible to insure that all teaching
assignments are properly scheduled and appropriately staffed to meet the
requirements for all classes and programs offered. In the event that AAPC does
not provide a qualified teacher for a scheduled class then AAPC agrees to
indemnify and hold EVCI harmless for any liability arising thereof.
5. AAPC is responsible for all communication charges from the
originating teacher station to the MCU Bridge. EVCI assumes responsibility for
cost in obtaining, providing, or paying for telecommunication signal transport
for video conferenced courses from the MCU Bridge to corporate locations and/or
students homes.
6. All software solutions remain the sole and exclusive property of
EVCI, 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 AAPC, and all rights and interests in
said materials will remain the sole and exclusive property of AAPC.
7. EVCI will provide reasonably prompt service for repair or replacement
of defective interactive video conferencing equipment and software as necessary.
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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 for marketing and sales purposes.
9. a.) EVCI will provide faculty development to AAPC faculty reasonably
required for the offering of AAPC courses through EVCI as follows: one- two day
training course will be supplied as part of this agreement. Additional training
courses will be billed at $2,200 per two-day session plus expenses.
b.) AAPC shall be responsible for obtaining the services of all
faculty participating in courses offered through EVCI, including but not limited
to paying faculty's salary and benefits (if any) and verification of
qualifications. EVCI assumes no responsibility for any costs associated
therewith.
10. EVCI is solely responsible to provide site locations for IVC/DL
students to participate in AAPC courses. AAPC assumes no responsibility for
obtaining or maintaining said sites for EVCI students or for any rent or other
costs associated therewith.
11. EVCI 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, AAPC agrees to be receptive to and
consider EVCI input as to course content presentation and delivery of IDL
courses consistent with required academic standards.
12. EVCI agrees to make every reasonable effort to maintain its
equipment in good working order. However, EVCI 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 EVCI's control.
13. AAPC hereby acknowledges that the IDL programs marketed by EVCI are
targeted toward Corporate training departments. AAPC therefore agrees to offer
IVC/DL courses at dates and times appropriate to the target market, including
the hours of 8:00 a.m. to 11:00 p.m., seven days per week, and at such other
times requested by EVCI based upon EVCI's Institutional Employers and their
employees needs.
14. The parties hereby acknowledge that this agreement is intended by
the parties to facilitate the offering of training courses, or other similar
courses of study.
15. Administrative Functions
a.) AAPC shall be responsible for all of its own administrative
functions, if any, associated with the offering of IDL courses through EVCI.
b.) AAPC will provide to EVCI all necessary administrative forms,
applications, written instructions, catalogues, etc. in advance of marketing
courses to any organization. It is understood by the parties that EVCI is merely
a conduit and assumes no liability whatever for the accuracy or correctness of
the information in said forms provided by AAPC or for return of any of the
aforesaid documents to AAPC.
16. If AAPC desires to co-market EVCI programs to its clients, with
EVCI, then AAPC shall identify the client (AAPC client) to whom they intend to
market EVCI programs prior to any contact thereof and secure written authority
from EVCI to proceed. If EVCI wishes to proceed, EVCI shall so
notify AAPC and assign a salesperson to work with AAPC. If EVCI is able to enter
into a contract with said AAPC client, then EVCI shall pay AAPC a commission as
set forth in paragraph 17 below.
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17. Fees, Payments and Tuition
The following structure will be the financial basis for the entire
agreement:
a.) AAPC will pay for all equipment deployed at their client locations.
b.) AAPC shall pay to EVCI [*]percent of the gross tuition actually
collected by AAPC for its courses delivered over the EVCI network to
EVCI clients. Payment to EVCI shall be within 30 days after actual
collection thereof. Said payments shall commence the month
immediately following the collection of any such tuition by AAPC. In
the event that EVCI collects course tuition from its clients for
AAPC courses, EVCI will promptly pay AAPC as stated in this
paragraph.
c.) EVCI will license its network to AAPC so that AAPC will be enabled
to deliver its programs directly to its own clients. The licensing
fees for network services are as follows: Based on increments of 3
seats
Equipment, Software, TeleCo (24/7) Point to point usage
5 year contract [*] per seat per month
3 year contract [*] per seat per month
Point to multi-point
[*] per port (one time charge)
plus [*] per hour based on actual usage
includes all multi-point usage fees
including scheduling, monitoring, help desk,
software upgrades etc.
d.) In addition to the direct and operating cost as stated in paragraph
above, AAPC shall pay to EVCI [ * ] royalty on all revenue
generated through the delivery of AAPC programs to AAPC clients
when using the EVCI network.
e.) In the event that EVCI enters into a contract to offer its
programming to an AAPC client, EVCI will be responsible for
communications charges from the MCU bridge to the client and give
AAPC a [ * ] commission on all EVCI revenue from tuitions actually
collected as a result of AAPC efforts on behalf of EVCI to AAPC
clients. All other AAPC charges as stated herein remain in effect.
f.) EVCI shall have the right, on a semi-annual basis, to examine the
books and records of AAPC, pertaining to all students taking
courses through EVCI, in order to audit any accounts due and owing
the respective parties. AAPC shall have the right to audit EVCI
accounts for students taking AAPC courses on the same basis.
g.) Commencing with the start of the first classes enabled by EVCI, and
continuing each month thereafter, AAPC will supply EVCI with a list
of all students who have registered for courses through EVCI. The
said list to include, each student's name, address, telephone
number, social security number, registration, and payment status.
EVCI shall provide to AAPC updated information relating to AAPC
students each month.
18. AAPC 's Public Relations Department will provide reasonable
cooperation with EVCI in promoting EVCI/AAPC corporate training program and the
IDL courses offered through EVCI.
19. AAPC shall maintain content control over all courses and will be
receptive to EVCI input as to IVC/DL presentation.
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[*] Confidential Portion
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20. Both companies will assign at least one person who at all times will
act as liaison between AAPC and EVCI.
For EVCI:
Vice President of Sales
Educational Video Conferencing, Inc.
35 East Grassy Sprain Road
Yonkers, NY 10710
(914) 787-3544
For AAPC:
Official notices regarding this agreement or the general relationship between
EVCI and AAPC should be directed to:
For EVCI:
Dr. Arol Buntzman
CEO
Educational Video Conferencing, Inc.
35 East Grassy Sprain Rd.
Yonkers, NY 10710
(914)-787-3515
For AAPC:
21. Term of Agreement
a.) The basic term of this agreement shall be THREE (3) YEARS.
b.) The parties hereby acknowledge the necessity for allowing IDL
students continuity and ongoing access to courses and programs, so long as there
is adequate registration for the course to begin.
c.) In light of the foregoing, the parties agree that commencing
January 1, 2000 and every January 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 three years of
the existing term remaining.
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e.) EVCI shall make all reasonable efforts to meet its obligation
under this agreement to provide high quality delivery and access of AAPC's
courses offered through EVCI. If at any time after the second anniversary date
of the execution of this agreement, EVCI has failed to meet its obligations
under the contract, then and in that event only, AAPC may:
i. provide EVCI with written notice (the "Default Notice")
specifying the manner in which EVCI is in default under the
contract;
ii. EVCI shall have six months from receipt of the Default Notice
to cure the default;
iii. if at the end of such period EVCI has not cured the default,
then this agreement shall terminate at the end of the then
current session or if classes are not in session,
immediately.
e.) Any dispute which may arise between the parties in connection
with whether the deficiencies identified in the default notices are breaches of
EVCI's obligations under this contract, or in the event that EVCI contends that
it has cured such deficiencies as set forth in the default notice and AAPC
contends it has not, shall be arbitrated under the commercial arbitration rules
of the American Arbitration Association. The award rendered therein shall be
final and binding between the parties and may be entered as a judgment in any
court of competent jurisdiction. The sole questions to be presented to the
arbitrator shall be whether those matters identified as decencies in the Default
Notice are in fact a breach of this agreement and if they were, then were the
deficiencies cured. The arbitrator shall be chosen from a list of persons who
have substantial experience in the distance learning field.
22. AAPC shall have the right to offer courses via IDL on its own to
others who are not under contract with EVCI. In such event, EVCI shall not have
any obligation to market, provide any services or equipment, or incur any costs
in connection with such offerings unless AAPC abides by the network services
section of the agreement. In no event shall EVCI's equipment or network be used
without a payment and licensing fee schedule agreed by EVCI prior thereto as set
forth in sections 16d,e, f.
23. AAPC 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, AAPC will not independently video
conference or computer conference its courses or programs under this contract to
EVCI students, clients or their employees.
24. The parties agree that disclosure of the terms of this agreement to
others will cause EVCI irreparable damage to its business. The parties agree,
therefore, that AAPC shall not disclose the terms of this agreement with the
prior written permission of EVCI.
25. 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. This document 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.
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29. If any portion of this agreement shall be found to be void, voidable
or unenforceable, it shall not effect the validity of the remainder of the
agreement.
30. This agreement shall be binding on the respective parties' heirs,
successors, and assigns.
31. The parties agree that any disputes or disagreements arising
hereunder or in connection herewith shall be settled by binding arbitration
before the American Arbitration Association at their offices located in White
Plains, New York, and that any judgment awarded thereunder may be entered in any
court of appropriate jurisdiction, and will have full force and effect therein.
32. This agreement shall be construed in accordance with, and governed
by, the laws of the State of New York.
In witness whereof the parties have hereunto set their hands and seal
the date first appearing above.
American Academy of Professional Coders, Inc.
By:/s/ Lan C. England
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President
EDUCATIONAL VIDEO CONFERENCING, INC.
By:/s/ Dr. John J. McGrath
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Dr. John McGrath
CEO
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FIRST ADDENDUM TO AGREEMENT BETWEEN EDUCATIONAL
VIDEO CONRERENCING, AND THE AMERICAN ACADEMY
OF PROFESSIONAL CODERS FOR THE OFFERING OF INTERACTIVE
VIDEO CONFERENCED COURSES
Dated May 19, 2000
1. EVCI shall have the right, for the duration of this agreement and any
renewal hereof, to offer the following educational training programs and
courses offered by AAPC: Professional Medical Coding Curriculum, CPC or
CPC-H examination review classes, and various specialty workshops to be
jointly determined between EVCI and AAPC. This training may be provided for
herein, via synchronous and asynchronous Interactive Distance Learning
(hereinafter "IDL") commencing upon the execution of this agreement.
American Academy of Professional Coders
By: Lan C. England
------------------------------------
Educational Video Conferencing, Inc.
By: Dr. John J. McGrath
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