Exhibit 10.39(b)
II. NFP EDUCATIONAL SERVICE PROVIDER AGREEMENT
AGREEMENT dated September 22, 1999 by and between WE MEDIA, INC., a
Delaware corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("WE MEDIA"), and Educational Video Conferencing Inc. a Delaware
Corporation with principal offices AT ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("EVC").
BACKGROUND
EVC has developed a system for delivering high quality distant learning programs
and has formed key relationships with major educational institutions to deliver
fully accredited college courses and degree programs along with continuing
education, from institutions to students in remote locations. This delivery
mechanism has proven to be a comprehensive system allowing for a complete
educational experience controlled by the instructor during a live class or
delivered asynchronously to students on demand.
We Media has undertaken a mission to provide enabling services to individuals
who have been denied access and choice to the services they need, including the
disabled, thier families and friends. In this undertaking, We Media is
developing a fourth-generation on-line portal community that shall exist as the
center of interaction for these individuals. This Internet community will act as
a unifying and central location for its members to interact, learn, grow and
meet one another.
In its Mission to develop a complete, all-inclusive community to provide
enabling services to those in need, We Media is partnering with not-for-profit
organizations. These partnerships will provide not-for-profit organizations
access to technology and enabling services that has not been possible in the
past.
Given the communication, technological and community capabilities of We Media
and the educational and distance learning expertise of EVC, We Media and EVC
hereby desire to enter upon this Agreement, to provide We Media's not-for-profit
(NFP) partners educational and distance learning services. Herein is defined the
agreed upon provisions of this partnership.
1. DEFINITIONS.
Terms used in this Agreement which are capitalized shall have the definitions
set forth below or elsewhere in this Agreement. References to Sections or
Exhibits refer to Sections of, or Exhibits to, this Agreement.
1.1. "End-user" means a person serviced by a NFP, which We Media has under
contract.
1.2. "Enrolled Student" means a person who is currently enrolled and has
paid for one or more courses through EVC.
1.3. "EVC ServiceS" means the services provided by EVC as described and
agreed to in the agreement in Appendix A
1.4. "Joint Marketing Agreement" means the agreement between EVC and We
Media dated August 26 1999, signed Dr. ▇▇▇▇ ▇▇▇▇▇▇▇, President EVC,
▇▇▇▇ ▇▇▇▇▇▇, President We Media, ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO We Media and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President We Media.
1.5. "NFP" means a not-for-profit organization servicing the disabled, their
family or friends.
1.6. "PErcentage WE Media Revenue to EVC" means the percent of We Media's
gross revenue (not including bad debt) received from NFP's for
providing educational and distance learning services utilizing EVC as
the technology provider.
1.7. "Percentage EVC Revenue to WE Media" means the percent of EVC's gross
revenue (not including bad debt) received from enrolled students of
distance learning courses offered from EVC acquired partners that
require payment for the production and presentation of said course.
1.8. "User Data" means the demographic information, names and email
addresses of the End-Users.
1.9. "WE Media Properties" means all Website pages, print publications,
radio broadcast and television broadcasts produced by or branded as
the property of We Media.
2. COMMITMENTS
2.1. Promotion. We Media will present EVC as the "distance learning
technology partner of the We Community" to all We Media NFP partners.
We Media will encourage NFP partners to participate in current EVC
course offerings.
2.2. Standard Enrollments. Any Enrolled Student that will be attributed, in
writing, as arising from any We Media/NFP relationship, discussions or
agreements will be counted as a We Media promotional enrollment as set
forth in the provisions of the Joint Marketing Agreement.
2.3. Service and Business OPportunity Creation. We Media will work with NFP
partners to develop new services and business opportunities based
around EVC
distance learning services. These services may consist of NFP courses
offered to NFP members, employees or constituents.
2.4. Relationship Management. We Media will manage all aspects of the
relationships with NFP partners, any and all commitments with regard
to EVC must be approved by the president of EVC.
2.5. Contract Management. We Media maintains the right to negotiate all
aspects of all contracts with NFP partners. EVC will be consulted
concerning any and all aspects of NFP contracts that involve EVC
commitment or participation. All sections concerning EVC must be
submitted to EVC for approval, with the understanding that such
approval shall not be unreasonably denied.
2.6. Agreements. We Media and EVC may enter into agreements on a case by
case basis specifying the details and special case provisions that
each contract between We Media and a NFP requires. Still We Media and
EVC will abide by the terms and provisions set forth in this Agreement
unless otherwise stated in such case-by-case agreements.
2.7. Rights of First Refusal. We Media will grant EVC the Right of First
Refusal to participate in any and all current or future NFP projects.
If participation is refused by EVC, We Media may retain the services
of any other distance learning technology provider. If EVC chooses to
participate in a NFP project, all reasonable efforts must be made by
both EVC and We Media to come to mutually agreeable terms for said NFP
project. If all reasonable measures have been exhausted and EVC and We
Media can not agree, We Media may retain the services of any other
distance learning technology ▇▇▇▇▇▇▇▇.▇▇ turn, EVC will grant We
Media the Right of First Refusal to work with any NFP, organization,
company or institution servicing the disabled community, their
families and friends, that EVC is currently or will at some future
time enter into an agreement with.
2.8. Charges to WFP. We Media has the right to negotiate with NFPs any and
all fees to be paid to We Media by NFPs for the delivery of
educational services provided to the NFP as part of We Media's NFP
program offering. All fees with respect to the provision of distance
learning services from EVC must be approved by EVC prior to the
execution of any individual NFP agreement that includes provisions
relating to the delivery of distance learning services by EVC. The
negotiation of fees between We Media and NFPs excludes tuition of
programs or courses provided by EVC from EVC acquired educational
partners. EVC may choose to wave the right of final approval of fees
to be paid by NFPs.
2.9. Revenue Sharing.
2.9.1. Percentage EVC Revenue to We Media will be determined by following the
provisions set forth in the Joint Marketing Agreement.
2.9.2. Referring to programs developed specifically for NFPs and not
covered by the Joint Marketing Agreement, unless otherwise
specified in forthcoming agreements specific to particular NFPs,
the Percentage We Media Revenue to EVC will be set at a value of
[*]%. Any deviation, in any direction from this value will
mutually agreed upon by EVC and We Media.
2.10. Services. EVC will provide EVC Services and may provide other services
to We Media NFP partners as set forth in each NFP specific agreement
executed by We Media and EVC.
2.11. WE Media Efforts. We Media will initially dedicate at least 20% of its
NFP strategic alliance program efforts to promoting the provisions as
set forth in this Agreement. The amount of effort dedicated to this
end will increase or decrease based upon evaluations of the success of
the EVC/We Media initiative as defined in this Agreement, the first
evaluation coming three months after the effective date of this
agreement. The determination of success of the initiative will be
based upon the level of positive responses and willingness to
participate in distance learning programs shown by NFPs.
2.12. Additional Efforts. Given the nature of many NFP groups with whom We
Media will be forming relationships, there may be special, additional
and/or unique needs and/or requirements for the delivery of distance
learning programs, EVC and We Media will therefore make all reasonable
efforts to deliver distance learning courses in light of such possible
and anticipated extenuating circumstances. EVC and We Media will
utilize their other relationships and partnerships in an attempt to
provide said services. This includes leveraging relationships with
international organization, telecommunication industry relationships
and any other relationships that may assist in the delivery of
distance learning courses.
2.13. Sanctity of Partners. We Media and EVC agree that neither company may
contact, approach or enter into an agreement with any NFP in
accordance with this agreement that the other is currently pursuing,
in discussions with or has an agreement with without express written
consent from the other party.
4. Payment; Reports
4.1. Payment; Reports. Payments and reports will comply with the provisions
of each contract covering the service offerings.
4.2. Audit of Reports. Each party will maintain complete and accurate books
and records sufficient to prepare accurate reports as required by
Section 4.1. Each shall have the right to cause such books and records
to be audited by an independent certified public accountant selected
by the requesting party. Any
[*] Confidential Portion
such audit shall be performed on seven
(7) days written notice, at the expense of the requesting party,
during normal business hours, no more frequently than once in a
twelve-month period, and in such a manner as to avoid unreasonable
interference with normal business operations, provided, however, that
if any such examination reveals an underpayment to the requesting
party of more than five percent (5%) of the total payment due for any
quarter, then the examined party shall pay the costs of such
examination.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1. Ownership. As between the parties, EVC shall retain all right, title
and interest in and to the distance learning service and its hardware
and software. EVC and We Media will jointly own any data that is
collected as part of any distance learning program. EVC and We Media
will jointly own, where feasible, and not in conflict with educational
providers' policies and procedures, state and federal accreditation
bodies and all applicable state and federal laws, any content,
courseware or programs, either electronic or traditional created for
any NFP. We Media will own any artwork, Website and any other content
created by We Media. EVC will own any artwork, Website and any other
content created by EVC.
5.2. Reservation of Rights. As between the parties, any rights to the We
Media Properties and not expressly granted hereunder to EVC are
reserved to We Media, and any rights to hardware, software or
promotional materials belonging to EVC and not expressly granted
hereunder to We Media are reserved to EVC.
6. CONFIDENTIALITY.
Each party shall be entitled to disclose the existence of this Agreement,
but agrees that the financial terms of this Agreement shall be treated as
confidential and shall not be disclosed to any other party; provided,
however, that each party may disclose the financial terms of this Agreement
(a) as required by a court or other governmental body, or as otherwise
required by law, (b) in confidence, to its legal counsel, accountants,
banks, and current and prospective financing sources and their advisors, or
in connection with an actual or proposed merger or acquisition, or (c) in
connection with the enforcement of its rights under this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
We Media and EVC each represent and warrant to the other party that:
(a) such party is an entity duly organized, validly existing and
in good standing in the jurisdiction of its formation;
(b) such party has full authority to enter into this Agreement, to
grant the rights granted herein, and to perform the
obligations assumed hereunder; and
(c) this Agreement, when executed by both parties, represents such
party's valid and binding obligation, enforceable against it
in accordance with its terms, subject to certain general legal
enforceability exceptions.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH
PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. TERM.
The term of this Agreement shall commence on the Date of the Agreement and
shall continue until the fifth anniversary of the effective date. the
parties agree that commencing june 30 2000, and every june 30th there
after, this Agreement shall automatically be extended for an additional
period of one year, subject to the conditions herein after contained.
9.1. 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 june 1st of any given year, after which the
agreement will not be extended for an additional one year, but will
only have the four years of the existing term remaining.
10. GENERAL PROVISIONS.
10.1. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of New York and the United States (excluding the UN
Convention on Contracts for the International Sale of Goods) without
regard to conflict of laws principles. In any action or proceeding to
enforce rights under this Agreement, the prevailing party shall be
entitled to recover costs and attorneys' fees.
10.2. Arbitration. The parties agree that any disputes or disagreements rising
hereunder or in connection herewith shall be settled by binding
arbitration before the American Arbitration Association at their offices
located in White Plains, NY, and that any judgment awarded thereunder may
be entered in any court of appropriate jurisdiction, and will have full
force and effect therein.
10.3. Assignment. Except as otherwise expressly provided in this Agreement,
neither party may transfer or assign its rights or delegate its
obligations hereunder (whether voluntarily or by operation of law) without
the prior written consent of the other party, which consent shall not be
withheld or delayed unreasonably, provided that each party shall have the
right to transfer this Agreement, and assign all of its rights and
delegate all of its obligations hereunder, to any affiliate, and to any
successor by way of merger or consolidation or in connection with the sale
or transfer of substantially all of its business and assets relating to
this Agreement.
10.4. Notices. All notices under this Agreement shall be in writing and
delivered personally or by facsimile, commercial overnight courier, or
certified or registered mail, return receipt requested, to a party at its
respective address set forth herein.
10.5. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and
merges and supersedes all prior discussions between them. No modification
of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by the party
against whom it is to be enforced. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon
any person other than the parties and the respective successors or
permitted assigns of the parties, any rights, remedies, obligations or
liabilities whatsoever.
10.6. Severability. If the application of any provision or provisions of this
Agreement to any particular facts or circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i)
the validity and enforceability of such provision or provisions as applied
to any other particular facts or circumstances and the validity of other
provisions of this Agreement shall not in any way be affected or impaired
thereby; and (ii) such provision or provisions shall be reformed without
further action by the parties hereto and only to the extent necessary to
make such provision or provisions valid and enforceable when applied to
such particular facts and circumstances.
10.7. Independent Contractors. The parties are independent contractors, and
nothing in this Agreement shall be construed to create a joint venture
or partnership.
10.8. Force Majeure. A party will not be deemed to have materially breached this
Agreement to the extent that performance of its obligations or attempts to
cure any breach are delayed or prevented by reason of an act of God, fire,
natural disaster, accident, act of government, shortage of equipment,
materials or supplies beyond the reasonable control of such party, or any
other cause beyond the reasonable control of
that party (a "force majeure
event"); provided that the party whose performance is delayed or prevented
promptly notifies the other party of the nature and duration of the force
majeure event.
10.9. Compliance With Laws. Each party shall comply with all laws and
regulations applicable to it.
In witness whereof, both parties have caused this Agreement to be executed as of
the date written above.
We Media, Inc.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice President
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇. ▇▇▇▇ ▇▇▇▇▇▇, President
AND
Educational Video Conferencing, Inc.
/s/ ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Dr. ▇▇▇▇ ▇▇▇▇▇▇▇, President
EDUCATIONAL VIDEO CONFERENCING INC.
DESCRIPTION OF SERVICES
Educational Video Conferencing, Inc. ("EVC") is the technological and education
bridge that links content providers to users. EVC represents content providers,
consisting of tier one, tow and three colleges and universities and professional
development and training institutions, each of which may offer accredited
courses, degrees (both undergraduate and graduate) programs, certificate
programs, job skill training and other educational opportunities.
EVC also acts as the technology bridge for both students and educators. EVC's
delivery models connect students in a variety of methods to receive courses
either a live and interactive synchronous delivery method or an on-line
asynchronous delivery method. As part of this business construct as a technology
and content bridge, EVC works closely with distance learning educators in the
use of technologically advanced teaching stations, effective program designs,
delivery and re-creating the classroom experience as the final link that
completes the service offered by EVC.
EVC will provide the following services and offerings as part of EVC's
agreements with WE Media, Inc. ("We Media"). These services and offerings will
be extended as long as they are both financially and reasonably feasible. If, at
any time, EVC changes these offerings WE Media will be notified in writing prior
to the effective date of the change. The offerings and services are broadly
defined as follows:
1. EVC will provide both the educational institution and
receiving institution with video conferencing and distance
learning hardware and software at no cost to We Media,
Subject to EVC;s standard policies and procedures.
2. EVC will provide students that sign up for 15 (3 credit)
undergraduate courses or 8 (3 credit) graduates courses with a
free video enabled computer and high speed Internet monthly
charges, subject to EVC's standard policies and procedures
3. EVC will instruct educational personnel, who will be
moderating, managing, teaching or delivering a distance
learning course over EVC systems, how to prepare, deliver
and transfer educational courses through the EVC distance
learning system.
4. EVC will extend its other promotional offerings as part of
its agreements with We Media, where reasonable.
IN WITNES WHEREOF, the parties have executed this Agreement as dated below.
September 7, 1999
We Media, Inc. Educational Video Conferencing,
Inc.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- --------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, EVP Dr. ▇▇▇▇ ▇▇▇▇▇▇▇