MEMORANDUM OF ENGAGEMENT entered into this 10th day of December,
1998,
B E T W E E N :
InfoCast Corporation
1 Richmond Street West, Suite #900
TORONTO, Ontario, Canada M5H 3W4
(hereafter referred to as "InfoCast")
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COLLEGE BOREAL D'ARTS APPLIQUES
ET DE TECHNOLOGIE
21 LaSalle Boulevard
SUDBURY, Ontario, Canada P3A 5B1
(hereafter referred to as "College Boreal")
WHEREAS College Boreal is a College of Applied Arts and Technology
constituted by Order in Council dated October 19, 1993 pursuant to the Ministry
of Colleges and Universities Act of Ontario with the powers and limitations as
therein defined;
AND WHEREAS InfoCast is a multi-national corporation in the business of
electronic content delivery and management on multiple and diverse communication
platforms;
AND WHEREAS InfoCast has requested the educational services and
participation of College Boreal as an Academic Leader in the development of
educational components for the creation of Learning Units pursuant to the AT&T
Canada Learning Partner Program(TM) which Program is to be further developed
with the help of College Boreal;
AND WHEREAS it is acknowledged that College Boreal is firstly and
predominantly an institution whose language of communications, research and
teaching is the French language;
AND WHEREAS it is acknowledged that College Boreal may outsource some
of its services in fulfilling its mandate to InfoCast;
AND WHEREAS it is acknowledged that College Boreal and AT&T Canada Long
Distance Services (hereafter referred to as "AT&T" or "AT&T Canada LDS") will be
expected to combine their efforts in the development of Learning Units
conforming to the AT&T Canada Learning Partner Program(TM);
NOW THIS AGREEMENT WITNESSETH that in consideration of the preamble
hereto, the mutual covenants, terms and agreements herein contained and the
payment of funds as outlined in Appendix "I" hereto, the parties agree as
follows:
1. ENGAGEMENT:
Commencing on December 10th, 1998, InfoCast hereby retains College
Boreal as the Academic Leader for the AT&T Canada Learning Partner Program(TM),
on the terms and conditions herein set out and as set out in the Cooperative
Marketing Agreement to be formalized with AT&T.
2. SCOPE OF THE ENGAGEMENT:
College Boreal is to provide non exclusive educational services to
InfoCast and/or its clients and InfoCast agrees to utilize services from the
AT&T Canada Learning Partner Program(TM) according to the terms and conditions
herein provided.
The combination of the services provided by the parties hereto and by
AT&T is intended to ensure the availability of learning materials and the
technological infrastructure without which the AT&T Canada Learning Partner
Program(TM) cannot be implemented.
InfoCast will be negotiating with College Boreal the formalization of
terms whereby College Boreal and AT&T will supply InfoCast certain products and
services generally described in the AT&T Canada Learning Partner Program(TM),
but not limited thereto.
Recognizing the importance of maintaining and ensuring a future
workforce in Northern Ontario and on a provincial, national and international
basis, and recognizing the importance of meeting future training needs, College
Boreal in conjunction with AT&T will facilitate the development and distribution
of on-line education beginning with a Call Centre curriculum.
3. TRAINING PHILOSOPHY:
3.1 College Boreal will provide pedagogical, technological and
andragogical models for the delivery of its contents of the
AT&T Canada Learning Partner Program(TM) and Learning Units,
which models are to be adhered to by all parties.
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3.2 For accreditation purposes, College Boreal will provide the
services of academic leader and educator for evaluation and
quality assurance of the content for the Learning Units in the
Digital Exchange Library (DXL).
3.3 College Boreal understands that InfoCast may, from time to
time produce or desire content to reside within the DXL, that
may not conform to the training philosophy of College Boreal.
4. DIGITAL EXCHANGE LIBRARY(DXL):
College Boreal is expected to administer the Digital Exchange Library
(DXL) which will store all Learning Units for sale or for use by possible
clients.
5. COLLEGE BOREAL MANDATE
The parties hereto acknowledge that College Boreal's prime mandate is
to serve the francophone population and community, although it may exercise in
other languages as well.
6. NON EXCLUSIVE RIGHTS:
The parties hereto acknowledge that each may have distinct and
unrelated commitments, obligations or agreements for the development and/or use
of the contents of the DXL subject to College Boreal's reservation of
intellectual property rights.
7. RETAIL PRICING:
The parties recognize and acknowledge that a financial model(s) will be
defined between InfoCast, College Boreal and AT&T as a retail market strategy.
Pricing structure, financing, schedule of payments, revenue and budgets
for the specific products and services will be covered under a separate
Agreement.
8. RELATIONSHIP
College Boreal is compensated under the terms of this Agreement as
outlined in Appendix "I".
College Boreal is responsible for its own expenses outside this
agreement.
College Boreal will act as custodian of the DXL and as distributor of
the Learning Units when ordered by prospective clients for which it will be paid
a fee to be determined by the parties hereto and AT&T.
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College Boreal is consequently not a partner, joint venturer,
principal, employee or servant of InfoCast and cannot bind them except as
specifically instructed.
College Boreal is the agent of InfoCast for the purpose of issuing
Purchase Order #312021 and any other subsequent similar purchase order.
InfoCast is not a partner, joint venturer, principal, agent, employee
or servant of College Boreal and cannot bind College Boreal except as
specifically instructed.
9. VOLUME:
9.1 The Digital Exchange Library (DXL) may contain an infinite
number of Learning Units, each with an anticipated value of
$2,900. InfoCast will provide College Boreal with a schedule
of anticipated delivery dates for the reaming units sold.
9.2 InfoCast warrants that it will cause College Boreal to develop
a minimum quantity of 20,000 Learning Units during the
currency of this Agreement and InfoCast extends to College
Boreal a right of first refusal for the development of
Learning Units within the scope of the AT&T Canada Learning
Partner Program.
10. TERM:
Unless terminated earlier as provided hereafter, the term (the "Term")
of this Agreement shall commence on December 10th, 1998, and shall continue in
effect until December 9th, 2001. Thereafter, this Agreement will be
automatically renewed, unless either party serves notice of termination, in
writing, to be effective 90 days thereafter.
11. TRADEMARKS:
11.1 College Boreal may make reasonable use of the name and logo of
InfoCast (collectively the "InfoCast Trade-Marks") in
connection with College Boreal's obligations under this
Agreement.
All materials, whether written, audio, visual or in any other medium,
used by College Boreal are subject to the prior written approval of
InfoCast.
11.2 InfoCast may make reasonable use of the name and logo of
College Boreal (collectively the "College Boreal Trade Marks")
in connection with InfoCast's obligations under this
Agreement.
All materials, whether written, audio, visual or in any other medium,
used by InfoCast are subject to the prior written approval of College
Boreal.
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12. NOTICES:
Any notice to be given hereunder shall be valid and effective if such
notice is sent by first class mail, postage prepaid, addressed to or personally
delivered to:
InfoCast Corporation
Attention of the President
1 Richmond Street West, Suite #900
TORONTO, Ontario, Canada M5H 3W4
and to the attention of the President at:
College Boreal
21 Lasalle Boulevard
SUDBURY, Ontario, Canada P3A 6B1
Any notice so given by mail shall be deemed to have been given on the
third business day following the date of mailing and any notice so given by
being personally delivered shall be deemed to have been given when so delivered.
13. CONFIDENTIALITY:
Each party hereto warrants that all matters dealt in or intended by
this Agreement shall be confidential and shall remain as such unless otherwise
authorized by the other parties.
Each party, upon reasonable request, shall execute a confidentiality or
Non-Disclosure Agreement in the form of Appendix "II", hereto, to be adapted as
required.
14. TERMINATION:
If either party to this Agreement breaches any term, condition,
representation or warranty or fails to perform any of its material obligations
hereunder and such breach is not remedied after 45 days' written notice from the
non-defaulting party, the non-defaulting party may terminate this Agreement
immediately upon providing prior written notice of termination to the defaulting
party.
15. NON ASSIGNMENT AND ENUREMENT:
There shall be no transfer or assignment of this Agreement without the
written consent of the other party. For the purposes of this clause, "transfer
or assignment" shall include a change in the corporation's capital structure or
in the shares' ownership of InfoCast.
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This Agreement shall enure to the benefit of and be binding upon the
parties and their respective heirs, executors, administrators, successors and
permitted assigns.
16. FORCE MAJEURE:
In the event of any party hereto being rendered unable at any time,
wholly or in part, to perform or comply with any of its obligations or the
conditions herein by reason of act of God, landslide, flood, washout,
earthquake, lightning, fire, storm, any strike, lockout, or other labour
dispute, any law, regulation or order by any governmental body or authority of
competent jurisdiction, act of the Queen's enemies, insurrection, riot or other
civil disturbance, or any cause beyond its reasonable control and which with the
exercise of due diligence such party is unable to overcome (herein called "force
majeure"), then the party suffering such force majeure shall not be considered
in default hereunder but shall forthwith notify the other party in writing of
the force majeure and the estimated time of its duration and all the obligations
of the parties hereunder shall be suspended for the duration of such force
majeure save and except for the obligations to pay the purchase price for
services already completed to the extent such payment or delivery is not
prevented by such force majeure.
17. REPORTING:
College Boreal agrees to provide InfoCast with monthly reports of
activities and educational services related to this Agreement, including
expenditures.
18. CURRENCY:
Unless otherwise indicated, all dollar amounts referred to in this
Agreement, including the symbol $____________, refer to the lawful money of
Canada.
19. CONTRACTING OUT:
College Boreal may subcontract the performance of services to qualified
service providers as it deems required.
20. COMPUTER INFRASTRUCTURE:
It is understood that AT&T will be responsible to provide College
Boreal with a computer and telecommunications infrastructure that will enable
the AT8T Canada Learning Partner Program(TM) to successfully deliver the
learning units to its clients.
21. AT&T CANADA LEARNING PARTNER PROGRAMS:
It is understood that the AT&T Canada Learning Partner Program(TM) once
formalized and ratified will form part of this Agreement.
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IN WITNESS WHEREOF the parties hereto have hereunto respectively set their hands
and seals as of the date hereof.
) InfoCast Corporation
)
) Per /s/ (c/s)
) -------------------------------
) James Hines, President
)
) College Boreal d'arts appliques et de
) technologie
)
) Per:
) /s/
) ----------------------------------
)
) Per:
) /s/
) ----------------------------------
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