Exhibit 10.53
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC. AND
TELECOMMUNICATIONS RESEARCH
ASSOCIATES FOR THE OFFERING OF
INTERACTIVE VIDEO CONFERENCED COURSES
W I T N E S S E T H
AGREEMENT made this 27th day of April, 2000, between
Telecommunications Research Associates with offices located at 505 W. Bertrand,
St. Marys Kansas 66536 (hereinafter referred to as "TRA"), and Educational Video
Conferencing Inc., (hereinafter "EVC"), with offices located at 35 East Grassy
Sprain Road, Yonkers, New York 10710.
WHEREAS, TRA is a domestic corporation involved with design, delivery
of technology training with emphasis on telecommunication technology, and,
WHEREAS, EVC is a domestic corporation engaged in the business of
providing access to such courses to consumers by way of interactive video
conferencing and computer conferencing, and,
WHEREAS, TRA and EVC wish to enter into a mutually beneficial
agreement whereby EVC will provide access to TRA courses to such consumers,
NOW, THEREFORE in consideration promises and 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 courses offered by TRA via Interactive Video
Conferencing/Distance Learning (hereinafter "IVC/DL") commencing April 1, 2000.
b.) For the purposes of this agreement, IVC/DL shall be defined as live,
two way video conferencing, either over desktop computers equipped for 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. IVC/DL also shall
include one-way video and two-way audio distance learning.
c.) Unless TRA and EVC agree otherwise in writing, the minimum class
size for the offering of an ITV/DL course shall be twenty- five (25) students.
2. EVC will provide all hardware (except personal computers, modems,
keyboards and monitors), software, and video conferencing equipment
(collectively referred to as "equipment") necessary to provide access for TRA
courses to IVC/DL students. Students taking IVC/DL courses on desktop computers
must have modern computers capable of being video enabled and function as an
IVC/DL desktop system. The parties acknowledge that it is the primary goal of
EVC to solicit students from corporations, governmental agencies, and
institutions (hereinafter "Institutional Employers") with substantial tuition
reimbursement and that EVC shall address all student use equipment issues with
the Institutional Employers and their employees. In any event, TRA shall not be
responsible for the purchase cost or repair cost of any equipment whatsoever at
Institutional Employer locations and/or students homes.
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3. EVC is responsible for costs for marketing, advertising, and promotion
regarding EVC's offering of access to TRA courses. Unless otherwise agreed, TRA
will provide brochures, catalogues, course schedules, program and course
descriptions, posters, etc., to EVC for distribution to employees of EVC's
corporate, governmental and institutional clients promoting the TRA programs and
courses offered through EVC.
4. TRA shall provide rooms capable of becoming teacher stations. This
includes installing and maintaining adequate telecommunication lines (ISDN, DSL,
or cable, or regular telephone lines) and electrical outlets. TRA will be
responsible for the cost of the telecommunication signal transport for video
conferenced courses from teacher stations to the MCU Bridge. EVC assumes
responsibility or cost for obtaining, providing, or paying for telecommunication
signal transport for video conferenced courses from the MCU Bridge to corporate
locations and/or students homes.
5. EVC will be responsible for installing and maintaining teaching stations
in the rooms provided by TRA to videoconference IVC/DL courses offered through
EVC, subject to enrollment as determined by EVC. All teaching stations installed
and paid for by EVC 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 TRA, and all rights and interests in said materials will
remain the sole and exclusive property of TRA.
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to TRA for IVC/DL courses.
b.) EVC will provide reasonably prompt service for repair or replacement
of defective interactive video conferencing equipment and software as necessary.
c.) TRA will be responsible for the prompt repair and/or replacement of
interactive video conferencing equipment located at TRA, which may be damaged
through improper or unauthorized use.
d.) TRA is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in TRA 's
custody and control.
8. Neither party shall utilize the other's name or any associated names,
trademarks, copyrights, etc., without prior written consent, except with regard
to EVC's marketing, advertising, and promotion of TRA courses. Such permission
shall not be unreasonably denied.
9. a.) EVC will provide faculty development to TRA faculty reasonably
required for the offering of TRA courses through EVC.
b.) TRA 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.
10. EVC is solely responsible to provide site locations for IVC/DL students
to participate in TRA courses. TRA assumes no responsibility for obtaining or
maintaining said sites, or for any rent or other costs associated therewith.
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11. EVC is not responsible for curriculum, course content, faculty
qualifications, course materials or any other aspect of the course content of
any courses offered hereunder. However, TRA agrees to consider EVC input as to
course content, presentation and delivery of IVC/DL courses consistent with
required standards.
12. EVC agrees to make every reasonable effort to maintain its equipment in
good working order. However, EVC nor TRA shall be 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. TRA hereby acknowledges that the IVC/DL programs marketed by EVC are
targeted toward the non-traditional working adult student market and therefore
agrees to offer IVC/DL courses at dates and times appropriate to the target
market. TRA class delivery will not exceed THREE DAYS within a given work week.
The hours of TRA class delivery will be between the hours of 8:00 a.m. CST to
6:00 p.m. CST, or at such other mutually agreed upon times requested by EVC's
Institutional Employers and their employees, subject to enrollment. TRA and EVC
shall agree as to the time, delivery, and content of each class two months prior
to the date the course is the scheduled to be offered.
14. a.) The parties hereby acknowledge that this agreement is intended by
the parties to facilitate the offering of TRA course delivery.
15. Administrative Functions
a.) TRA shall be responsible for all of its own administrative
functions associated with the offering of IVC/DL courses through EVC.
b.) TRA will provide to EVC all necessary course information and TRA
catalogues, in advance of EVC marketing courses to any organization. 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 TRA nor for return of any of the aforesaid documents to TRA .
16. Fees
a.) TRA shall pay to EVC, on the 10th day of each month, [*] PERCENT
of the gross tuition for each course offered under this agreement. TRA
accounting records WILL be used from the preceding month to calculate payment,
from any source whatever, from or on behalf of any student registered for and
TRA course being offered through EVC, said payments to commence the month
immediately following the collection of any such tuition by TRA. All checks for
courses taken will be made out to TRA. Example of 2 Day course; Tuition =EIGHT
HUNDRED and NINETY-FIVE DOLLARS ($895.00), per student times TWENTY-FIVE
students =TWENTY-TWO THOUSAND THREE HUNDRED and SEVENTY FIVE DOLLARS
($22,375.00), EVC would receive [*]. TRA would receive the balance of [*],
Example of 3 Day course; Tuition = ONE THOUSAND THREE HUNDRED AND FORTY TWO
DOLLARS, $1,342.00, per student times 25 students = THIRTY THREE THOUSAND FIVE
HUNDRED AND FIFTY DOLLARS ($33,550.00). EVC would receive [*]. TRA would receive
the balance of [*].
b.) EVC shall have the right, on a semi-annual basis, during normal
business hours to examine the books and records of TRA, pertaining only to all
students taking courses through EVC, in
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[*] Confidential Portion
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order to audit any accounts due and owing the respective parties. TRA shall have
the right to audit EVC accounts for students taking TRA courses on the same
basis.
c.) Commencing on May 10, 2000, and continuing on the 10th day of every
month thereafter, TRA will supply EVC with a list of all students who have
applied to TRA, 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. EVC shall
provide to TRA updated information relating to TRA students each month.
d.) 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 TRA by EVC,
the format of which shall be subject to TRA 's approval, which approval shall
not be unreasonably withheld.
e.) Within THIRTY (30) DAYS of the completion of class, TRA 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 TRA 's account on the 10th day of every month following
credit request.
f.) Students registering for TRA courses through EVC who are employed
by an Institutional Employer customer of EVC which has a tuition reimbursement
policy for their employees shall be eligible for tuition deferment from TRA
until completion of the course, thereby enabling said students to register for
TRA courses through EVC without payment of tuition or fees up front. Said
students shall be required to sign a tuition payment guarantee providing that
they are fully responsible for 100% of all tuition in the event that, for any
reason, they are not reimbursed by their employer. EVC will supply TRA with a
copy of all student tuition deferment registrations prior to course delivery. If
said student does make tuition payment to TRA, TRA will not be held responsible
for payment to EVC for said student tuition. However, EVC will make a good faith
effort to collect the tuition from said student and reimburse TRA for said
student tuition payment.
g.) Students registering for TRA courses offered through EVC who are
not employed by an Institutional Employer customer of EVC providing tuition
reimbursement to their employees shall be required to pay tuition and fees up
front when registering.
17. a.) TRA will provide a room which will accommodate teaching stations in
order to facilitate IVC/DL courses marketed by EVC 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 IVC/DL
equipment. Said room shall have adequate electrical, air conditioning, lighting,
etc., and be otherwise suitable for use as a video conferencing teacher station.
Said rooms will be provided one at a time subject to registration demand.
21. TRA will assign at least one person who at all times will act as
liaison between TRA and EVC.
22. Term of Agreement
a.) The basic term of this agreement shall be Three (3) YEARS,
commencing on April 1, 2000 and termination on March 31, 2003
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b.) The parties hereby acknowledge the necessity for allowing IVC/DL
students continuity and ongoing access to courses and programs, so long as there
is adequate registration. TRA understanding of adequate registration is a
minimum of ONE two-day course content every two months, six per year. At any
time during the term of this Agreement, TRA or EVC may cancel this Agreement if
the agreed minimum course delivery amount, six per year, is not met within a
given calendar year.
c.) In light of the foregoing, the parties agree that commencing On
April 1, 2003 and every April 1st thereafter, this agreement shall be extended
for an additional period of ONE (1) YEAR, unless terminated as set forth below.
d.) In the event that either party should desire not to extend this
agreement beyond the three year term or any extension thereof, then and in that
event, such party shall so notify the other in writing, by Certified Mail,
Return Receipt Requested, no later 90 days prior to the termination date of its
intent not to renew. In that event, this agreement shall not be extended for an
additional ONE (1) YEAR.
23. EVC agrees that for the term of this contract and any renewal thereof,
as well as for one -year after expiration or termination of the contract, unless
terminated by EVC for cause, EVC shall not offer Technology Training for
Telecommunication courses from any for-profit corporation except TRA to any
institutional employer or its employees. EVC reserves the right to offer
internal training courses for any of its institutional employers.
24. Nothing within this contract shall prevent EVC from offering courses or
programs from any of its academic partners to an institutional employer or its
employees. For purposes of this contract, an academic partner is defined as a
college or university.
25. TRA agrees that for the term of this contract and any renewal thereof,
as well as for one year after expiration or termination of the contract, unless
terminated for cause by TRA, TRA shall not offer Technology Training for
Telecommunication courses via IVC/DL except through EVC. Not withstanding the
above, if after the expiration or termination of this contract, unless
terminated for cause by EVC, an institutional employer contacts TRA and requests
that TRA offer Technology Training for Telecommunication courses via IVC/DL
directly to that institutional employer or its employees over that institutional
employer's equipment then, and in that event only, TRA may offer Technology
Training for Telecommunication courses via IVC/DL directly to that institutional
employer or its employees.
26. Nothing in this contract shall prevent TRA from offering traditional
non-IVC/DL courses to institutional employers.
27. The parties agree that disclosure of the terms of this agreement to
others will cause EVC and TRA irreparable damage to its business. The parties
agree, therefore, that neither party shall disclose the terms of this agreement
without the prior written permission of the other party.
28. 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.
29. 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.
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30. 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.
31. 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.
32. If any portion of this agreement shall be found to be void, voidable or
unenforceable, it shall not affect the validity of the remainder of the
agreement.
33. This agreement shall be binding on the respective parties' heirs,
successors, and assigns.
34. This agreement shall be construed in accordance with, and governed by,
the laws of the State of Kansas.
In witness whereof the parties have hereunto set their hands and seal the
date first appearing above.
TELECOMMUNICATIONS RESEARCH ASSOCIATES, INC.
By:/s/ Robert Etzel
---------------------
Robert Etzel
President
EDUCATIONAL VIDEO CONFERENCING, INC.
By:/s/ John J. McGrath, Ph.D
--------------------------------
John J. McGrath, Ph.D
President
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