LETTER OF AGREEMENT
BETWEEN
TENGTU INTERNATIONAL CORPORATION
"TENGTU"
AND
THE CENTRE FOR EDUCATION AND TRAINING
"CET"
The purpose of this agreement is to:
1. establish a new Joint Venture entity comprised of two partners, Tengtu
International and the Centre for Education and Training for the
purposes of becoming the primary producer, agent and distributor
(clearing house) for educational and training programs and systems for
China and other world markets.
2. set out the terms of the Joint Venture Arrangement between the two
parties to develop educational materials, software and related services
to fulfill the mandate of Tengtu through its joint venture and
subsidiaries in Hong Kong and the People's Republic of China.
THE PARTIES AGREE TO THE FOLLOWING:
1. Tengtu will be responsible for:
a) Managing and administration of the joint venture and
subsidiaries in Hong Kong and the People's Republic of China,
Asia, Singapore, Taiwan and any "flow-back markets" in
geographic areas to which Chinese have emigrated.
b) Marketing and distribution throughout Hong Kong and the
People's Republic of China.
c) Managing and developing the relationships between the Joint
Venture and the educational markets, ministries, agencies and
authorities in China, and
d) The nationalization, adaptation and publication of programs
and materials for the Chinese markets through Tengtu's
operations in China.
2. CET will be responsible for:
a) Providing ESL testing standards and certification, including:
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-- Canadian Language Benchmark Assessment - CLBA: currently
assesses individuals' English language proficiency from
Level 1 (beginner) to Level 8 (University Entrance) in
the areas of Listening/Speaking, Reading, and Writing.
This assessment could be available online or onsite
through the use of trained assessors.
-- CLBA Assessor Training
-- Online language training (both generic or for special
purposes as in the case of professionals)
-- University preparation for students, online and/or
onsite
-- English for Special Purposes for professionals and
government officials, online and/or onsite
b) Providing online high school certification. This would involve
evaluating standards and establishing equivalencies.
c) Providing educational content for online use to encompass high
school (9-12), K- 8, workplace needs and professional
training, by developing and/or acquiring course materials
including:
i) existing CET materials,
ii) acquisition from third party sources,
iii) creation of new materials.
d) Coordinating, sourcing, evaluating, negotiating the
acquisition of educational and training course materials from
school boards, community colleges, universities, other private
and commercial sources, or any source deemed appropriate. This
will include managing and administering all copyright,
acquisition and royalty arrangements.
e) Customizing and ensuring the quality and consistency control
for all course materials regardless of source to ensure they
meet standards and are suitable for translation into an
e-learning environment.
f) Developing and maintaining a web-enabled, distribution system,
as the primary vehicle for effective communication, online
learning and the provision of other products and services,
including:
i) instructional design for internet based learning and
communication utilizing sound pedagogical practices and
procedures to convert content into an e-learning
framework,
ii) maintaining and servicing the "e-related content
delivery functions" of this initiative,
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iii) selecting and developing suitable delivery platforms,
tailored to varying needs as they emerge.
g) Developing and providing entry level, online training
materials on the use of computers and the Internet for novice
users.
h) Managing and administration of the Tengtu/CET joint venture
and related suppliers and agencies.
PROJECT SCHEDULES
3. a) A separate Schedule will be prepared and signed by both
parties for each specific project to be undertaken under the
terms and conditions of this Agreement. Each Project
Schedule(s) will specifically and directly relate to an
individual project and shall include the scope and details of
the work to be undertaken, and set out the agreed costs of the
project.
b) There can be multiple individual Project Schedule(s) to this
Agreement and shall form an integral and inseparable part of
this Agreement. Project Schedules can be amended, from
time-to-time as mutually agreed between the parties, without
affecting the body of this Agreement.
DEFINITIONS
4. a) Tengtu joint venture and subsidiaries in Hong Kong and the
people's Republic of China - as summarized in the internet,
website description.
b) 50/50 Joint Venture - will include sharing all aspects of the
arrangements including without restriction, copyrights,
revenues, costs
c) Revenues - will include all fees, commissions, licensing, etc.
d) More to be added as required
REVENUE SHARING
5. Unless specifically defined for specific projects, all net revenues
will be shared on a 50%/50% basis.
TERM
6. This Agreement shall be for a three year term and shall be renewed
automatically for successive one year periods unless terminated as
provided under the following section or upon one year advance notice
provided in writing to the other party.
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TERMINATION OF AGREEMENT
7. Either party will have the right to terminate this Agreement in the
following circumstances:
a) TERMINATION FOR BREACH. In the event of any breach of any
material term or provision of this Agreement by either party
hereto, the non-breaching party may send a written notice
explaining the nature of the breach to the breaching party and
delivered in accordance with the terms of this Agreement. If
any breach is not cured within thirty (30) days after the
giving of the notice of breach, the non- breaching party may
terminate this Agreement immediately upon further written
notice. Notwithstanding the termination of this Agreement, any
claims of the parties arising under this Agreement prior to
such termination will survive such termination.
b) BANKRUPTCY. In the event that either party voluntarily files a
petition in bankruptcy or has such a petition involuntarily
filed against it (which petition is not discharged within
sixty (60) days after filing) or is placed in a receivership
or reorganization proceeding or is placed in a trusteeship
involving an insolvency, the other party may terminate this
Agreement by giving a termination notice, which termination
shall become effective immediately upon mailing.
c) Upon termination, each party shall return to the other all
deliverables provided by that party under this Agreement,
together with all copies thereof, whether electronic, hard
copy or otherwise.
8. Termination will not remove the responsibility of each party to the
Agreement for honoring existing commitments, which have already been
established in respect of previously executed arrangements for a period
of 1 year from the date of termination.
PROPRIETARY RIGHTS
9. Any products and/or services (and the Intellectual Property Rights
therein, specifically including source and object code) and the Marks
are and will remain the sole and exclusive property of the presenting
party. Each Party's rights under this subsection include, but are not
limited to: (i) all copies of the products and/or services, in whole
and in part; (ii)Marks; (iii) all Intellectual Property Rights in the
products and/or services; and (iii) all modifications to, and
derivative works based upon, the products and/or services. Each Party
reserves the sole and exclusive right at its discretion to assert
claims against third parties for infringement or misappropriation the
Marks and of its Intellectual Property Rights in the products and/or
services.
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GENERAL PROVISIONS
NON-DISCLOSURE AND NON-CIRCUMVENTION
10. The parties are willing to introduce third parties and disclose to each
other, certain proprietary information relative to target clients and
projects and the parties are willing to receive and use such
information under the terms and conditions set forth in this Agreement.
The parties shall treat as confidential and shall not use (except for
purposes of this Agreement or with the written permission of each
other) nor disclose to others any Proprietary Information provided by
each other or Associates introduced under this Agreement and shall
take, and be responsible for, all reasonable precautions to prevent the
unauthorized disclosure of such Proprietary Information to others.
11. "Proprietary information" means all introduced third parties,
information and data known to the parties relating to a project. The
parties agree that any of the introductions, business development and
marketing concepts and ideas to which they are introduced by each other
or Associates are the sole property of the introducing party or its
Associates and cannot be utilized, copied or adapted by the receiving
party for a period of two years after the termination of this
Agreement.
12. This confidentiality shall apply to:
a) all transactions originated during the term of this agreement,
and
b) all subsequent transactions which are follow-up, repeat,
extended or renegotiated transactions originated during the
term(s) of this Agreement.
INDEPENDENCE OF ACTION
13. The parties to this Agreement are independent contractors. There is no
relationship of partnership, employment, between the parties. Neither
party will have the power to bind the other or incur obligations on the
other's behalf without the other's prior written consent. This
Agreement is not to be construed in such a way as to restrict the
independent conduct of business by the parties to this Agreement with
any client or potential Client.
INDEMNITIES
14. The parties will indemnify and hold each other harmless including
subsidiaries and affiliates and their respective officers, directors,
employees or agents from and against any and all claims, demands,
losses, liabilities, damages, judgments and expenses, including without
limitation legal fees on a solicitor and client basis, which are
incurred as a result of any breach of this Agreement; provided,
however, that each Party shall be permitted to control the defense of
any claim, action, suit or proceedings based on any such allegation.
DISCLAIMER OF LIABILITY
15. Subject only to each party's respective obligation of indemnity,
neither party shall be
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liable to the other party or to any third party for any punitive,
exemplary or aggravated damages, any incidental, special or
consequential damages, loss of profits or revenue, or interruption of
business in any way arising out of or related to this Agreement,
regardless of the form of action, whether in contract, tort, (including
negligence), strict product liability or otherwise, even if any
representative of the party has been advised of the possibility of such
damages.
ARBITRATION
16. This Agreement shall be governed by the laws of the Province of Ontario
and of Canada. Any disputes or claims relating to this Agreement which
are not settled first by arbitration in accordance with the Commercial
Arbitration Act of Canada may be entered in any court having
jurisdiction. Tengtu and CET agree that if there are any penalties that
an injunction shall be lodged against the other to freeze all client
and/or project related funds until satisfaction of fees, with penalties
paid and any awards will include all court costs, legal fees and other
charges deemed fair and reasonable by the arbitrator(s) for business
conducted under this Agreement.
ASSIGNMENT
17. This Agreement will bind and inure to the benefit of each party's
successors and permitted assigns. Neither party may assign this
Agreement, in whole or in part, except to an affiliate or
majority-owned subsidiary or with the other party's prior written
consent, which shall not be unreasonably withheld. Any attempt to
assign this Agreement without such consent will be null and void.
SEVERABILITY
18. If any provision of this Agreement is found invalid or unenforceable,
that provision will be enforced to the maximum extent permissible, and
the other provisions of this Agreement will remain in force.
NOTICES
19. Any notice or reports required or permitted to be given under this
Agreement shall be given in writing and shall be delivered by facsimile
transmission (receipt confirmed) or by certified or registered mail,
postage prepaid, return receipt requested, and shall be deemed given
upon personal delivery, five (5) days after deposit in the mail or upon
acknowledgment of receipt of facsimile transmission. Notices shall be
sent to the parties to this Agreement at the address set forth below or
such other address as either party may specify in writing.
ENTIRE AGREEMENT
20. This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter indicated above and its terms
may not be changed or modified
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except as agreed in writing by both parties.
This Agreement has been signed in duplicate this 17 day of January 2001 at
Mississauga, Ontario by duly authorized officers representing each party.
TENGTU INTERNATIONAL CORPORATION CENTRE FOR EDUCATION AND TRAINING
0 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX X0X 0X0
----------------------------- ------------------------------
(Signature) (Signature)
Xxx Xxxxxx
CHAIRMAN & CEO CHIEF EXECUTIVE OFFICER
-------------------------------- --------------------------------------
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