Memorandum of Agreement - California Culinary Academy Inc. and Noel-Levitz Centers Inc.
MEMORANDUM OF AGREEMENT
THIS AGREEMENT is made the 1st day of July 1996, by and between California
Culinary Academy (hereinafter referred to as "Institution") and Noel-Levitz
Centers, Inc., d/b/a USA Group/Noel-Levitz (hereinafter referred to as
"Noel-Levitz").
FOR CONSIDERATION of the mutual promises and covenants contained in this
document, the Institution and Noel-Levitz agree as follows:
I. PROJECT SCOPE
A. Noel-Levitz agrees:
1. To provide 12 months of Ongoing Enrollment Consulting.
This will include specific, on-site, monthly assistance, and
constant monitoring, in building a prospecting, marketing,
recruiting, and communication systems. Specifically, this will
include:
a. Assistance in developing and implementing the master enrollment
plan;
b. Assistance in designing and implementing a comprehensive
written/personal communication system;
c. Creating a detailed plan for generating inquiries from among
those students that fit your Institutional priorities;
d. Developing an integrated system for qualifying, grading and
managing the prospect pool;
e. Creating a management reporting structure to track and evaluate
results;
f. Monitoring all results and systems in order to make
recommendations about mid-course corrections; and
g. Outlining 30 and 90 day successive action plans and progress
benchmarks.
2. To provide the Effective Admissions Counselor Training Program, a
two-day on-campus training program for admissions recruiters.
3. License EMASPLUS (the "System") to the Institution pursuant to the
terms of the EMASPLUS License Agreement attached hereto as Exhibit
A (the "License Agreement"). The License Agreement will allow the
Institution to concurrently use the System on a maximum of 10
computer work stations.
4. Provide the following services (the "Services") in connection
with implementation of the System:
a. One day on-campus visit to identify and address software
administration, integration and data exchange needs;
b. Provide documentation and telephone consultation to assist the
Institution in its preparation of data exchange and the requirements
necessary to interface with the Institution's current systems (the
Institution will be responsible for
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making any necessary changes to allow the System to interface
correctly with the Institution's current systems);
c. Ordering the Microsoft FoxPro-TM- software and Symantec THE NORTON
pcANYWHERE-TM- software on behalf of the Institution and
coordinating the shipment of such software directly to the
Institution;
d. Telephone consultation to confirm that the Institution has
appropriately completed the System preparation activities;
e. Two-day on-campus installation and training session for the
Institution's key personnel responsible for operating the
System, including providing assistance to the Institution's network
administrator in installing the System on the Institution's
computer system network (the Institution will be responsible for
any necessary changes to the Institution's computer system network);
f. Three-day on-campus training session for all professional and
support staff who will be using the System; and
g. Two-day on-campus telecounseling training session for up to 20 of
the Institution's student telecounselors and key personnel
responsible for the operation of the telecounseling component of
the System.
5. Provide two years of technical support services and maintenance (the
"Technical Support and Maintenance") on the System pursuant to the
terms of the EMASPLUS Technical Support and Maintenance Agreement
attached hereto as Exhibit B (the "Technical Support and Maintenance
Agreement"). Additional years of Technical Support and Maintenance
will be provided to the Institution at the annual fee set forth in
the Technical Support and Maintenance Agreement.
6. To assist the Institution using ForecastPLUS-TM- to identify those
students most and least likely to enroll for the 1997-98 academic year.
We will build Institution specific models to predict probability of
enrollment at all stages of the enrollment funnel: prospectus to
inquiry, inquiry to applicant and acceptance to matriculant.
Specifically, this includes:
a. Demographic analysis of the Institution's enrollment data;
b. One day on-campus presentation of the models, including a written
report with recommendations for integrating the models into
Institutional marketing and recruiting strategies;
c. An algorithm for Institutional implementation of the scoring
process for admitted to enrolled students; and
d. External scoring of the institutional database with the probability
rating; once for the prospect file, three times for the inquiry
file and once for the admitted file, annually.
7. To advise the Institution using the Financial Aid Leverage Analysis
regarding the formulation and implementation of financial aid awarding
and packaging strategies designed to support new student enrollment
and revenue goals over the next two years. This component includes:
a. An annual historical comparison of financial aid packages offered
to enrolled and non enrolled students for up to five unique
populations for admitted students, as
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defined by the institution, including a one day on-campus visit for
data collection discussions;
b. Up to three days of annual on-site assistance with institutional,
admission/financial aid goal-setting based upon analysis and
interpretation of the historical analysis;
c. Annual assistance with formulating recommended awarding strategies
that support institutional enrollment goals;
d. Annual assistance in implementing the Awarding Strategy;
e. Annual assistance in managing and monitoring progress toward goals;
f. Annual return (retention) analysis;
g. Annual four year enrollment and net revenue projection modeling; and
h. Annual assistance to implement the Early Estimator Program to
pre-qualify students whose decisions to apply and enroll at the
Institution and might be influenced adversely by the cost of
attendance. This includes:
1.) An annual customizable early estimating form;
2.) Four key implementation letters and promotional strategies;
3.) Annual software to estimate eligibility and generate periodic
management reports; and
4.) Staff training to ensure effective presentation and
implementation of the strategy.
In the event that the Institution provides written notification to
Noel-Levitz by February 1, 1997 of its desire not to conduct the
Financial Aid Leverage Analysis, then Noel-Levitz will be released
from its obligation to perform the Financial Aid Leverage Analysis,
with the exception of one (single year) Annual Return Analysis for
which data currently exists.
B. The Institution agrees:
1. To identify the person(s) who will be the Institutional contact(s) for
the project.
2. To provide the historical data requisite for the Financial Aid Leverage
Analysis and ForecastPLUS in a manner and in a form Noel-Levitz
specifies which permits the successful and timely completion of the
analyses.
3. To provide personnel, equipment and facilities to utilize the programs
and software provided by Noel-Levitz.
4. To provide the computer hardware (including modem and dedicated analog
telephone line) required to operate the System, and to ready this
hardware for installation of the System. System technical
specifications are attached hereto as Exhibit C.
5. To have a computer systems network in place and operational prior to
installation of the System and to have the Institution's network
administrator available during installation of the System to make
necessary configuration changes.
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6. To provide conversion test data by a mutually agreed upon date. The
Institution understands that if such data is not provided by such
date, a substantial delay in the installation of the System and the
completion of the project is likely to occur.
7. To provide an adequately equipped on-campus training facility to be
used by Noel-Levitz personnel during System training.
8. To execute and conform to the provisions of the License Agreement.
9. To execute and conform to the provisions of the Technical Support and
Maintenance Agreement.
10. That it is responsible for the actual implementation of all suggested
actions. A representative of Noel-Levitz will work closely with the
administrative staff on the implementation of the enrollment program.
11. That all financial aid goal setting, awarding, packaging, and net
revenue decisions which are made are Institutional decisions.
12. To take full responsibility for the actual mailing, communication,
goal setting, awarding, packaging, and net revenue decisions and their
outcomes.
13. That Noel-Levitz shall not be responsible for reviewing or providing
any advice regarding the Institution's compliance with any Federal,
state or local statutes or regulations pertaining to financial aid
programs.
14. It understands that Noel-Levitz will be working with other colleges and
universities throughout the United States and Canada, providing
services similar to those described herein.
15. That it understands that Noel-Levitz reserves the right to assign this
agreement in full to the USA Group or any of its affiliates or
subsidiaries.
C. The term of this Agreement shall be for 24 months, beginning July 1, 1996,
and ending June 30, 1998. Neither party shall have any right to terminate
this agreement prior to the end of the term of this agreement. The payment
schedule set forth in this agreement is solely for the fiscal convenience
of the institution; therefore, in the event that the parties mutually
agree in writing to an earlier termination date, the institution shall
pay Noel-Levitz for the value of the products delivered and services
rendered through such early termination date.
D. The Institution has the option to continue Noel-Levitz services after
this agreement is completed. The price of any additional services will
be negotiated at that time.
E. Noel-Levitz warrants that if the System fails to substantially conform
to the specifications in the System documentation and if the
non-conformity is reported in writing by the
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Institution to Noel-Levitz within 90 days from the later of the date
that the System license is purchased or the date the installation is
completed, then Noel-Levitz will, at its option, either remedy the
non-conformity or offer to refund the license fee to the Institution
upon return of all copies of the System software and System
documentation to Noel-Levitz. In the event of a refund the System
license shall terminate. The foregoing warranty shall apply provided
that: (a) the System is not modified, changed, or altered by anyone
other than Noel-Levitz, unless authorized by Noel-Levitz in writing;
(b) the Institution's computer equipment is in good operating order and
is installed in a compatible environment; (c) the non-conformity is not
caused by a third party or by the Institution, its agent, employees or
contractors; and (d) the data and/or database used with the System are
not modified, changed or altered by any means other than through the
normal operation of the System.
F. Additional services (the "Additional Services") related to the Services
that are not set forth in this Agreement may be purchased from
Noel-Levitz from time to time by the placement of a written work order
(a "Work Order"). No obligation for services or costs shall be incurred
by either party unless and until a Work Order has been executed by both
parties. Each Work Order shall contain, among other provisions, a
description of the services to be performed, the delivery or
performance schedule and an estimate of the costs to be charged. The
Additional Services provided pursuant to any Work Order shall be
subject to the terms and conditions contained in this Agreement.
II. PAYMENT
A. Payment for the services and software outlined in I,A of this Agreement
will total $220,300, two hundred twenty thousand three hundred dollars,
plus actual travel, lodging, and subsistence.
- July 15, 1996 $83,650
- August 15, 1996 $8,300
- September 1, 1996 $8,300
- October 15, 1996 $8,300
- November 15, 1996 $8,300
- December 15, 1996 $8,300
- January 15, 1997 $8,300
- February 15, 1997 $8,300
- March 15, 1997 $8,300
- April 15, 1997 $8,300
- May 15, 1997 $8,300
- June 15, 1997 $8,300
- July 15, 1997 $40,000
- August 15, 1997 $5,350
The price per element is:
Ongoing Enrollment Consulting $5,500/month
Effective Admissions Counselor Training Program $4,290
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EMASPLUS $42,260
EMASPLUS Annual Maintenance Year 1 $5,350
EMASPLUS Annual Maintenance Year 2 $5,350
ForecastPLUS $37,050
Financial Aid Leverage Analysis Year 1 $41,280
Financial Aid Leverage Analysis Year 2 $18,720
In the event that the Institution provides written notification to
Noel-Levitz of its desire not to conduct the Financial Aid Leverage
Analysis as provided for in I(A)(7), then Noel-Levitz will be released
from its obligation to perform the Financial Aid Leverage Analysis,
except for one (single year) Return Analysis. Payment for the services
and software will then total $184,300, one hundred eighty four thousand
three hundred dollars, plus actual travel, lodging, subsistence.
- July 15, 1996 $75,650
- August 15, 1996 $10,300
- September 1, 1996 $10,300
- October 15, 1996 $8,300
- November 15, 1996 $8,300
- December 15, 1996 $8,300
- January 15, 1997 $8,300
- February 15, 1997 $8,300
- March 15, 1997 $8,300
- April 15, 1997 $8,300
- May 15, 1997 $8,300
- June 15, 1997 $6,300
- July 15, 1997 $10,000
- August 15, 1997 $5,350
The price per element is:
Ongoing Enrollment Consulting $5,500/month
Effective Admissions Counselor Training Program $4,290
EMASPLUS $42,260
EMASPLUS Annual Maintenance Year 1 $5,350
EMASPLUS Annual Maintenance Year 2 $5,350
ForecastPLUS $37,050
Return Analysis $24,000
B. Payment of expenses will be invoiced monthly with appropriate receipts
or invoices for travel, lodging, subsistence, and transportation, express
mail charges, and the cost of presentation visuals.
C. All fees will be payable in U.S. dollars and do not include any taxes. If
Noel-Levitz is required to pay sales or other taxes based upon the license
granted, the use of the Noel-Levitz product(s), or services rendered, the
Institution will reimburse Noel-Levitz the
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amount of taxes paid by Noel-Levitz. If the Institution does not remit
payment to Noel-Levitz within 30 days after receipt of an invoice, the
Institution will pay Noel-Levitz a late charge of the lesser of 1.5%
per month or the maximum amount permitted by applicable state law for
unpaid amounts due Noel-Levitz. Collection costs incurred by Noel-Levitz,
including reasonable attorney fees, will be reimbursed by the
Institution.
D. Invoices shall be sent to the following address:
Ms. Sandra Weber
Director of Alumni and Career Services
and Enrollment Management
California Culinary Academy
625 Polk Street
San Francisco, CA 94102
E. Checks should be made payable to Noel-Levitz and mailed to:
Noel-Levitz Centers, Inc.
2101 ACT Circle
Iowa City, IA 52245
III. DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NOEL-LEVITZ MAKES NO WARRANTY,
REPRESENTATION, PROMISE OR GUARANTEE, EITHER EXPRESS OR IMPLIED, WITH
RESPECT TO THE SOFTWARE OR SERVICES, INCLUDING, WITHOUT LIMITATION, THE
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOEL-LEVITZ'S AGGREGATE LIABILITY, AND THE INSTITUTION'S SOLE AND
EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF
ACTION, ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO THE
TOTAL OF ALL PAYMENTS MADE BY OR FOR THE INSTITUTION TO NOEL-LEVITZ FOR
THE SOFTWARE OR SERVICES INVOLVED IN ANY SUCH CLAIM. NOEL-LEVITZ SHALL
NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES OR COSTS RELATING TO ENROLLMENT SUCCESS, LOSS OF PROFITS OR
REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR LOSS OF THE USE OF
ANY DATA) ARISING FROM THE SOFTWARE OR SERVICES PROVIDED BY NOEL-LEVITZ
HEREUNDER, EVEN IF NOEL-LEVITZ HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO THE
INSTITUTION.
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IV. CONFIDENTIALITY
During the course of performance of this Agreement, the Institution may
be given access to information that relates to Noel-Levitz's past,
present and future research, development, business activities,
products, services or technical knowledge. All of such information
shall be deemed to be "Confidential Information" unless otherwise
indicated by Noel-Levitz in writing at or after the time of disclosure.
The Confidential Information may be used by the Institution only in
connection with its internal business. Access to the Confidential
Information shall be restricted to those of Institution's personnel,
representatives and contractors on a need to know basis solely in
connection with Institution's internal business. The Institution
further agrees that it will (i) take all necessary steps to inform any
of its personnel, representatives or contractors to whom Confidential
Information may be disclosed of the Institution's obligations hereunder
and (ii) cause said personnel, representatives and contractors to agree
to be bound by the terms of this Agreement by executing a
confidentiality agreement containing the same restrictions contained
herein or some other method acceptable to Noel-Levitz. Institution
agrees to protect the confidentiality of the Confidential Information
in the same manner that it protects the confidentiality of its own
proprietary and confidential information of like kind. The Institution
agrees to notify Noel-Levitz of any unauthorized use or disclosure of
Confidential Information and to take all actions reasonably necessary
to prevent further unauthorized use or disclosure thereof. The terms of
this Section shall survive the expiration or termination of this
Agreement.
V. MISCELLANEOUS
This Agreement constitutes the entire agreement between
Noel-Levitz and the Institution relating to the subject matter contained
herein. There are no understandings, representations or warranties,
express or implied, that are not specified herein. No change will be
made in any of the terms of this Agreement, nor any provision waived,
without the prior written consent of Noel-Levitz and the Institution.
Noel-Levitz will not have any liability for the failure to carry out its
obligations in the manner specified herein due to any circumstances
beyond its reasonable control. All notices and consents required or
permitted herein will be made in writing and will be mailed by certified
mail, return receipt requested, to the addresses specified herein or
such other addresses designated by Noel-Levitz or the Institution. If
any provision of this Agreement is declared invalid or unenforceable,
the remaining provisions will remain in force. This Agreement will be
construed in accordance with the laws of the State of Indiana, without
giving effect to conflict of law provisions. This Agreement will
constitute a license of application software and an agreement to provide
services and will not be construed as a contract for the sale of goods
subject to the provisions of the Uniform Commercial Code. Until accepted
by Noel-Levitz, this Agreement will be considered an offer by the
Institution.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
written below.
California Culinary Academy
San Francisco, California
Illegible Sandra Weber
By: __________________________ By: ______________________________
CFO Dir., Enrollment Management
Title: _______________________ Title: ___________________________
7/18/96 7-18-96
Date: ________________ Date: ________________
Noel-Levitz Centers, Inc.
Iowa City, Iowa
By: __________________________
Title: _______________________
Date: ________________
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EXHIBIT A
EMASPLUS LICENSE AGREEMENT
CALIFORNIA CULINARY ACADEMY
PLEASE READ CAREFULLY: THIS LICENSE AGREEMENT (THE "AGREEMENT") IS MADE
EFFECTIVE THIS 1ST DAY OF JULY, 1996 BETWEEN CALIFORNIA CULINARY ACADEMY, A
CALIFORNIA CORPORATION (THE "INSTITUTION"), WITH OFFICES AT 625 POLK STREET,
SAN FRANCISCO, CA 94102 AND NOEL-LEVITZ CENTERS, INC., D/B/A USA GROUP
NOEL-LEVITZ, AN IOWA CORPORATION, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT
2101 ACT CIRCLE, IOWA CITY, IA 52245 ("NOEL-LEVITZ"). IF THE INSTITUTION DOES
NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE INSTITUTION
SHOULD NOT SIGN THIS AGREEMENT AND THE INSTITUTION SHOULD RETURN ALL PROGRAM
DISKETTES AND DOCUMENTATION IMMEDIATELY TO NOEL LEVITZ.
DEFINITIONS
"DOCUMENTATION" means the printed materials provided by Noel-Levitz with the
Software.
"LICENSE" means the license purchased and granted pursuant to this Agreement.
"LICENSED NETWORK SERVER" means the Institution's computer network server on
which the Software is licensed to be installed.
"SOFTWARE" collectively means the EMASPLUS software and any other software
the Institution has received from Noel-Levitz with this License, except Third
Party Software products.
"THIRD-PARTY SOFTWARE" means software products owned by third parties
(including Microsoft FoxPro-TM- and Symantec THE NORTON pcANYWHERE-TM-) that
are required to operate the Software.
LICENSE AND PROTECTION
1. LICENSE GRANT: Noel-Levitz grants to the Institution, subject to the
following terms and conditions, a non-exclusive, non-transferable right to
use the Software and Documentation solely for the Institution's
internal business operations on as many as 10 computers or workstations
used concurrently with a single database on the Licensed Network Server.
The Software and Documentation are for internal use only and may not be
used or distributed outside of the Institution. Noel-Levitz reserves all
rights not expressly granted herein to the Institution. Payment for the
Software shall be made in accordance with the payment schedule
established in the Memorandum of Agreement between Noel-Levitz and the
Institution. Additional concurrent users may be licensed by the
Institution at Noel-Levitz's then current price in effect.
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2. THIRD-PARTY SOFTWARE: Certain Third Party Software products are
required to operate the Software. Although Noel-Levitz does not sell the
Third Party Software, it will coordinate on behalf of this Institution
the purchase of FoxPro and pcANYWHERE and the shipment of such products
directly to the Institution. The Institution is responsible for
registering the license for Third Party Software products in its own
name and for acquiring and maintaining current versions required to
operate the Software. Noel-Levitz will notify the Institution of changes
in versions of Third Party Software products required to run the
Software.
3. PROTECTION OF SOFTWARE: The Software source code represents and
embodies trade secrets of Noel-Levitz. Such source code and embodied
trade secrets are not licensed to the Institution and any modification,
addition, or deletion is strictly prohibited. The Institution agrees to
treat the Software and Documentation as confidential and to take all
reasonable steps to protect the Software and Documentation from
unauthorized copy or use. The Institution agrees not to disassemble,
decompile, or otherwise reverse engineer the Software in order to
discover the source code and/or the trade secrets contained in the
source code. The Institution agrees to take appropriate action by
instruction or agreement with its employees and independent contractors
who are permitted access to any of the materials related to this
Agreement to comply with the Institution's obligations hereunder. This
paragraph 3 shall survive the expiration or termination of this
Agreement.
4. COPIES AND ADAPTATIONS: The Institution may make or authorize the
making of copies or adaptations of the Software, provided that any
new copy or adaptation created is for archival purposes only, and the
Institution does not receive any payment, commercial benefit, or other
consideration for the reproduction. All proprietary rights and notices
must be faithfully reproduced and included on all copies and
adaptations. The Documentation may be duplicated for internal use only.
5. OWNERSHIP: Ownership of, and title to, the Software and
Documentation (including any adaptations, copies or derivative works)
shall be retained and held by Noel-Levitz.
6. RESTRICTIONS: Except as expressly authorized in this Agreement,
the Institution agrees not to sell, rent, lease, sub-license,
distribute, transfer, copy, reproduce, display, modify, time-share, or
act as a service bureau with respect to the Software or Documentation.
7. DATA INTEGRATION: Using the Software's standard import and export
files, the Institution can move data to and from the EMASPLUS database.
It is the responsibility of the Institution to format and prepare the
date properly to use the import and export files and achieve data
integration.
8. INSTITUTION'S SOFTWARE PROGRAMS: The development, maintenance and
accuracy of the Institution's custom software programs and modules that
interface with the Software
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(for example, calling specific EMASPLUS modules) or modify the EMASPLUS
database are the sole and entire responsibility of the Institution.
9. TERM: This License is effective from the date the Institution
signs this Agreement and will remain in force until terminated. The
Institution may terminate this License at any time by destroying the
Documentation and the Software together with all copies and adaptations
thereof. This License shall automatically terminate if the Institution
breaches any of the material terms or conditions of this Agreement. The
Institution agrees to destroy the original and all adaptations or copies
of the Software and Documentation, or to return them to Noel-Levitz
promptly upon termination of this License.
10. INDEMNIFICATION: Noel-Levitz does indemnify and shall hold
harmless the Institution against any claims by any third parties that
the Software or Documentation infringes any United States copyright,
patent or trademark. If the Software or Documentation becomes, or in
Noel-Levitz's reasonable opinion is likely to become, the subject of any
such claim which impairs the Institution's right to use the Software or
Documentation, Noel-Levitz shall, at its option and at no additional
cost to the Institution, (i) replace or modify the Software and/or
Documentation with functionally equivalent and conforming Software
and/or Documentation, (ii) obtain for the Institution the right to
continue using the Software and/or Documentation, or (iii) in exchange
for termination of this Agreement, refund the license fees paid by the
Institution pursuant to this Agreement prorated over a four-year period
from the date of delivery. Noel-Levitz's obligations hereunder are
subject to the following: (1) the Institution shall promptly notify
Noel-Levitz in writing of any such claim; (2) Noel-Levitz shall have
sole control of the defense or settlement of any such claim; and (3) the
Institution shall cooperate with Noel-Levitz, at Noel-Levitz's expense,
in a reasonable way to facilitate the settlement or defense of any such
claim. Noel-Levitz shall not be responsible for any cost, expense, or
compromise incurred or made by the Institution in connection with the
defense of any such claim without Noel-Levitz's prior written consent.
Noel-Levitz's obligations under this section shall not apply to
claims of infringement based upon (i) use of other than the latest
unmodified release of the Software made available by Noel-Levitz to the
Institution if such infringement would have been avoided by the use of
such release of the Software, (ii) combination, operation or use of the
Software with any non-Noel-Levitz programs or data if such infringement
would not have occurred without such combination, operation or use, or
(iii) use of the Software after receiving written notice from Noel-Levitz
that the Software infringes a United States copyright, patent or
trademark of a third party. Noel-Levitz's obligations under this section
constitute the Institution's sole and exclusive remedy for a claim, suit
or proceeding for an intellectual property infringement.
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LIMITED WARRANTY AND LIMITED LIABILITY
11. COMPATIBILITY: This software is only compatible with the computers
and operating systems set forth on the EMASPLUS technical specifications
sheet; the Software is not warranted for non-compatible systems.
12. MAGNETIC MEDIA AND DOCUMENTATION: Noel-Levitz warrants that if the
magnetic media on which the Software is distributed or Documentation are
in a damaged or physically defective condition at the time that the
License is purchased, and if they are returned to Noel-Levitz within 90
days of purchase, Noel-Levitz will provide the Institution with
replacements at no charge. Any unauthorized modification or misuse of
the Software will void the foregoing warranty.
13. SOFTWARE: Noel-Levitz warrants that if the Software fails to
substantially conform to the specifications in the Documentation and if
the non-conformity is reported in writing by the Institution to
Noel-Levitz within 90 days from the later of the date that the License
is purchased or the date the installation is completed, then Noel-Levitz
will, at its option, either remedy the non-conformity or offer to refund
the license fee to the Institution upon return of all copies of the
Software and Documentation to Noel-Levitz. In the event of a refund this
License shall terminate. The foregoing warranty shall apply provided
that: (a) the Software is not modified, changed, or altered by anyone
other than Noel-Levitz, unless authorized by Noel-Levitz in writing; (b)
the Institution's computer equipment is in good operating order and is
installed in a compatible environment; (c) the non-conformity is not
caused by a third party or by the Institution, its agent, employees or
contractors; and (d) the data and/or database used with the Software are
not modified, changed or altered by any means other than through the
normal operation of the Software.
14. DISCLAIMER OF WARRANTIES: EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
NOEL-LEVITZ MAKES NO WARRANTY, REPRESENTATION, PROMISE OR GUARANTEE,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE
DOCUMENTATION OR ANY RELATED TECHNICAL SUPPORT, INCLUDING, WITHOUT
LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE INSTITUTION.
15. LIMITATION OF LIABILITY: EXCEPT AS SET FORTH IN SECTION 10 HEREOF,
NOEL-LEVITZ'S AGGREGATE LIABILITY, AND THE INSTITUTION'S SOLE AND
EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF
ACTION, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR
DOCUMENTATION IS LIMITED TO THE TOTAL OF ALL PAYMENTS MADE BY OR FOR THE
INSTITUTION TO NOEL-LEVITZ FOR THE PARTICULAR SOFTWARE, DOCUMENTATION OR
SERVICES INVOLVED IN ANY CLAIM MADE BY THE INSTITUTION. NOEL-
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LEVITZ SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES (INCLUDING,
WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO ENROLLMENT SUCCESS,
LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL,
LOSS OF THE USE OF THE SOFTWARE, OR LOSS OF ANY DATA) ARISING OUT OF
THE USE OF OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR RELATED
TECHNICAL SUPPORT, EVEN IF NOEL-LEVITZ HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO THE INSTITUTION.
GENERAL CONDITIONS
16. GOVERNING LAW: This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Indiana
and of the United States of America (without regard to conflict of
law principles).
17. ENTIRE AGREEMENT: This Agreement sets forth the entire
understanding and agreement between the Institution and Noel-Levitz
relating to the subject matter contained herein and may be amended only
in writing signed by both parties. No vendor, distributor, dealer,
retailer, sales person, or other person is authorized to modify this
Agreement or to make any warranty, representation, or promise different
from, or in addition to, the representations or promises contained
in this Agreement.
18. WAIVER: No waiver of any right under this Agreement shall be
effective unless in writing, signed by a duly authorized representative
of Noel-Levitz. No waiver of any past or present right arising from any
breach or failure to perform shall be deemed to be a waiver of any
future right arising under this Agreement.
19. SEVERABILITY: If any provision in this Agreement is invalid or
unenforceable, that provision shall be construed, limited, modified, or,
if necessary, severed to the extent necessary, to eliminate its
invalidity or unenforceability, and the other provisions of this
Agreement shall remain unaffected.
20. EXPORT: The Institution agrees to comply with all export and
re-export restriction and regulations ("Export Restrictions") imposed by
the government of the United States or the country to which the
Software is shipped to the Institution. The Institution will not commit
any act or omission which will result in a breach of any such Export
Restrictions; the Institution agrees that it will comply in all respects
with any governmental laws, orders or other restrictions on the export
of the Software (and related information and documentation) which may be
imposed from time to time by the governments of the United States and
Canada or the country to which the Software
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is shipped by Noel-Levitz. This Section shall survive the
expiration or termination of this Agreement.
21. U.S. GOVERNMENT RESTRICTED RIGHTS: Use, duplication, or disclosure
by the United States Government is subject to restrictions as set forth
in FAR 52.227-14 (June 1987) Alternate III(g)(3) (June 1987), FAR
52.227-19 (June 1987), or DFARS 52.227-7013 (c)(1)(ii) (June 1988), as
applicable. Contractor/Manufacturer is Noel-Levitz Centers, Inc., 2101
ACT Circle, Iowa City, Iowa 52245.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
written below.
California Culinary Academy Noel-Levitz Centers, Inc.
By: _______________________ By: _____________________
Name: _____________________ Name: Robert C. Dickeson, Ph.D.
Title: ____________________ Title: President & CEO
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EXHIBIT B
EMASPLUS SOFTWARE MAINTENANCE AGREEMENT
CALIFORNIA CULINARY ACADEMY
This Software Maintenance Agreement (the "Agreement") is made effective
this _______ day of May, 1996 between the California Culinary Academy
(the "Institution") with offices at 625 Polk Street, San Francisco, CA
94102 and Noel-Levitz Centers, Inc., d/b/a USA Group Noel-Levitz
("Noel-Levitz") having its principal place of business at 2101 ACT
Circle, Iowa City, IA 52245.
WHEREAS, Noel-Levitz and Institution have entered into a certain
license agreement dated May __, 1996 (the "License Agreement") pursuant
to which Noel-Levitz agreed to license to Institution its EMASPLUS
software (the "Product"); and
WHEREAS, Noel-Levitz desires to maintain, and Institution desires to
obtain the maintenance of, the Product on the terms and conditions
hereinafter provided:
1. MAINTENANCE SERVICES. The maintenance services to be provided
hereunder (the "Maintenance Services") shall consist of: (a) reasonable
efforts to correct defects, provided that such defects are not the
result of any change made to the Product (other than improvements
provided by Noel-Levitz under this Agreement); (b) reasonable telephone
support through Noel-Levitz's telephone support line during Noel-Levitz's
then current published standard support line hours, which at a minimum
will be Monday through Friday (excluding holidays) from 8:00 a.m. to
5:00 p.m. (CT), to Institution personnel that are fully trained by
Noel-Levitz in the use of the Product; (c) distribution by Noel-Levitz
to the Institution at no charge of regular enhancements to the Product
which may be developed from time to time by Noel-Levitz (provided that
the Institution has purchased continuous support of the Product from
Noel-Levitz since installation of the Product); and (d) registration for
one person at one Noel-Levitz software related workshop for each year
that this Agreement remains in effect.
2. LIMITATIONS. Noel-Levitz's obligations under this Agreement will be
limited to the then current unmodified release and the immediately
preceding unmodified release of the Product. Noel-Levitz provides no
guarantees or assurance that any new release, version, modification or
enhancement to the Product will be compatible with (i) any Product that
has been modified or customized, or (ii) any Product data and/or
database that has modified by any means other than through the normal
operation of the Product. All improvements, meaning Maintenance
Services, enhancements and new releases, will be part of the Product and
subject to all terms and conditions of the License Agreement and this
Agreement.
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3. APPLICABILITY OF LICENSE AGREEMENT. This Agreement and all software,
documentation, and media provided under it is subject to all the terms
and conditions of the License Agreement, including, but not limited to,
the Disclaimer of Warranties and Limitation of Liability.
4. MAINTENANCE FEES. Noel-Levitz shall provide the Maintenance Services
to the Institution for an annual fee equal to 10% of the then current
list price for the Product (based on the number of concurrent users that
the Institution is permitted pursuant to its license to use the
Product), so long as the Institution continues maintenance uninterrupted
and so long as Noel-Levitz operates a maintenance program on the
Product. The initial maintenance fee is due upon delivery of the Product
to the Institution. Thereafter, the maintenance fee is payable annually
on the anniversary date of the training provided by Noel-Levitz to the
Institution (the "Anniversary Date"). Unless the Institution notifies
Noel-Levitz in writing that this Agreement shall terminate, for whatever
reason, on the Anniversary Date, this Agreement shall be extended and
renewed on each Anniversary Date for an additional one year period.
Noel-Levitz may cancel the automatic renewal terms by notifying the
Institution that Noel-Levitz does not want to renew this Agreement. If
the Institution does not remit payment to Noel-Levitz within 30 days
after receipt of an invoice, the Institution will pay Noel-Levitz a late
charge of the lasser of 1.5% a month or the maximum amount permitted by
applicable state law for unpaid amounts due Noel-Levitz.
5. ADDITIONAL COSTS. If Noel-Levitz can reasonably demonstrate that a
malfunction is caused by the failure of the Institution's operating
environment or by the improper use of the Product by the Institution or
its contractors and the Institution requests assistance from
Noel-Levitz, then the Institution shall pay Noel-Levitz an additional
amount for its work performed in connection therewith on a per-hour
basis, at Noel-Levitz's standard hourly rates then in effect.
Institution also will reimburse Noel-Levitz for all reasonable travel
and living expenses incurred by Noel-Levitz personnel who provide
requested services.
6. ADDITIONAL SERVICES. At the request of the Institution, and with the
consent of Noel-Levitz, Noel-Levitz also may provide technical,
operational, implementation, migration, or other assistance or
consulting to Institution in excess of the services included as the
Maintenance Services in Section 1 herein at Noel-Levitz's standard
hourly rates then in effect.
7. INSTITUTION REQUIREMENTS. Noel-Levitz's obligation to provide
Maintenance Services hereunder is contingent upon the Institution
providing Noel-Levitz with access to necessary Institution systems
(including the Product as installed on the Institution's computer
network system) by (i) providing a modem line and modem which meet
Noel-Levitz's technical specifications, and (ii) installing Symantec's
THE NORTON pcANYWHERE-TM- software product to operate unattended in host
auto answer mode.
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8. CONDITIONS. The termination of the License Agreement, or of the
license granted therein, shall automatically result in the termination
of this Agreement.
9. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. NOEL-LEVITZ MAKES
NO WARRANTY WITH RESPECT TO THIS AGREEMENT, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, OF ANY KIND WHATSOEVER, AND ALL SUCH WARRANTIES ARE
HEREBY EXCLUDED BY NOEL-LEVITZ AND WAIVED BY THE INSTITUTION.
NOEL-LEVITZ SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES OR COSTS RELATING TO ENROLLMENT SUCCESS, LOSS OF PROFITS OR
REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF THE USE OF THE
PRODUCT, OR LOSS OF ANY DATA) EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT NOEL-LEVITZ'S MAXIMUM
LIABILITY TO THE INSTITUTION HEREUNDER SHALL BE LIMITED TO THE AMOUNTS
ACTUALLY PAID BY THE INSTITUTION TO NOEL-LEVITZ HEREUNDER DURING THE
IMMEDIATELY PRECEDING TWELVE MONTHS.
10. TERMINATION. Either party will have the right to terminate this
Agreement if the other party breaches or fails to perform any material
term or condition of this Agreement. Either party, if it has a right of
termination as provided above, may terminate this Agreement at any time
while the event or condition giving rise to that right of termination
exists, by giving the other written notice of that event or condition
and describing that event or condition in reasonable detail. Upon
receipt of that notice, the other party will have 30 days to correct or
cure that event or condition to the reasonable satisfaction of the party
desiring termination. If the event or condition giving rise to the
termination is not so corrected or cured within that period, this
Agreement will terminate as of the end of the 30-day period
automatically, without further act by any party.
11. NOTICES. All notices and other communications required or permitted
under this Agreement will be in writing and will be deemed given when
delivered personally, three days following being sent by United States
registered or certified mail, return receipt requested, or one business
day following being sent by overnight courier to the address stated
herein for Noel-Levitz, to the address stated herein for the
Institution, or such other address as the parties hereto designate from
time to time.
12. CHOICE OF LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the laws of the State of Indiana (without
giving effect to conflict of law provisions). If any provision of this
Agreement is found invalid or unenforceable, it will be
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enforced to the maximum extent permissible, and the legality and
enforceability of the other provisions of this Agreement will not be
affected.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
written below.
California Culinary Academy Noel-Levitz Centers, Inc.
By:____________________________ By:_____________________________
Name:__________________________ Name: Robert C. Dickeson, Ph.D.
Title:_________________________ Title: President & CEO
Date:__________________________ Date:___________________________
<PAGE>
EXHIBIT B
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT ("Agreement") is made this _____ day of
____________, 1996 by California Culniary Academy (the "Recipient") and USA
Group Noel-Levitz, Inc., an Indiana corporation (the "Company").
RECITALS
A. The Company has developed a multi-institutional delivery program (the
"Delivery Program") in connection with the Company's customized enrollment
prediction system ForecastPlus-TM- (the "Product").
B. Recipient desires to participate in the Delivery Program, and the Company
desires to have Recipient participate in the Delivery Program.
C. In the course of the Delivery Program, other educational institutions that
are participating in the Delivery Program (a "Participant") may disclose to
Recipient confidential and proprietary information of that Participant.
D. In connection with, and as a condition to becoming a participant
in the Delivery Program, the Company requires that Recipient
agree to the provisions set forth below.
E. Recipient is willing to enter into this Agreement in order for it to
participate in the Delivery Program.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained in this Agreement and of other good and valuable
consideration, the receipt of which is hereby acknowledged, the Recipient
agrees as follows:
1. DEFINITION.
(a) "Participant Confidential Information" shall mean all institution
specific data and/or information disclosed by a Participant or the
Company to Recipient during and/or in connection with the Delivery
Program.
2. NON-USE AND NON-DISCLOSURE. Recipient agrees that it will maintain in
confidence and will not communicate, divulge or use any Participant
Confidential Information which is communicated and/or transmitted
to it by the Company or a Participant, subject to the exceptions of
Section 3 below. As part of the confidential treatment required
hereunder, Recipient agrees that no copies of Participant
Confidential Information shall be made by Recipient except as
authorized in writing by the Participant. Nothing in this paragraph
shall prohibit Recipient from using Participant Confidential
Information for the sole purpose of participating in the Delivery
Program.
Recipient further agrees that it will (i) take all necessary steps
to inform any of its employees, representatives or agents to whom
Participant Confidential Information may be disclosed of
Recipient's obligations hereunder and (ii) cause said employees,
representatives and agents to agree to be bound by the terms of
this Agreement, either by signing a blank copy of this Agreement or
some other method acceptable to the Company. Recipient shall
indemnify and hold the Company harmless from all costs, expenses
(including attorneys' fees, whether or
<PAGE>
not suit be brought), damages, losses or claims arising from or
relating to any breach or default by any employee, representatives
or agent of Recipient of any provision of this Agreement.
Recipient agrees to notify the Company and the Participant, as
applicable, of any unauthorized use or disclosure of Participant
Confidential Information and to take all actions reasonably
necessary to prevent further authorized use or disclosure thereof.
The confidentiality obligations set forth in this Agreement shall
continue to apply with respect to each item of Participant
Confidential Information until such item ceases (other than due to
actions or failures of Recipient) to be secret or confidential.
3. EXCEPTIONS. The restrictions of Section 2 shall not apply to:
(a) Information which is generally available to the public or to
the relevant industry prior to receipt from the Company or
Participant, as applicable, or which later becomes such, other than
due to action or failure by Recipient, its agents, representatives
or employees;
(b) Information which, prior to disclosure hereunder, is already in
the rightful possession of Recipient; or
(c) Information which Recipient receives from a third party not
known by Recipient, acting reasonably, to be in violation of a
confidential relationship with the Company or Participant, as
applicable.
4. SEVERABILITY. Should any part of this Agreement be declared
invalid by a court of law, such decision shall not affect the
validity of any remaining portion, which shall remain in full force
and effect as if the invalid portion was never a part of this
Agreement.
5. NO ASSIGNMENT. This Agreement shall be binding upon Recipient
and its heirs, successors and assigns and inure to the benefit of
the Company or Participant, as applicable, and its successors and
assigns, but Recipient shall not, directly or indirectly, assign or
purport to assign this Agreement or any of its rights or
obligations hereunder in full or in part to any third party without
the prior written consent of the Company.
6. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana without giving
effect to conflict of law provisions.
7. INTEGRATION. This Agreement constitutes the entire agreement and
understanding relating to the subject matter hereof.
8. REMEDIES. Company shall be entitled to obtain injunctive or
other equitable relief, in addition to other available remedies, in
the event of a breach or threatened breach of this Agreement by
Recipient.
9. AMENDMENTS; WAIVERS. This Agreement may be amended or modified,
and any of the terms or conditions hereof may be waived, only by a
written instrument executed by the parties hereto, or in the case
of a waiver, by the party waiving compliance. Any waiver or
modification, express or implied, by any party hereto of any term
or condition in this Agreement will operate as
<PAGE>
such only in the specific instance and will not be construed as
a waiver or modification of any condition or term generally or in
any other instance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMPANY: RECIPIENT:
USA Group Noel-Levitz, Inc. California Culinary Academy.
By:________________________ By:_________________________
Name: Name:
___________________________ ____________________________
Title: Title:
___________________________ ____________________________
<PAGE>
EXHIBIT C
EMASPLUS TECHNICAL SPECIFICATIONS
EMASPLUS runs in a standard MS-DOS environment. Any network
operating system that guarantees 100% DOS compatibility, such as
Novell Netware, will be able to run it. Although EMASPLUS was
developed and tested in Novell 3.11 and Novell 4.1 environments, a
conscious effort was made not to use any Novell-specific features
that would limit cross-platform compatibility.
RECOMMENDED MINIMUM REQUIREMENTS
These minimum requirements are intended to illustrate the existing
equipment that could be used to operate EMASPLUS. Due to rapid
advances in hardware power and lowering costs, we recommend
substantially more powerful equipment for any new purchases.
Because of the substantial differences in local requirements and
options available, USAGroup Noel-Levitz cannot be responsible for
configuring your network. Your data center support staff or other
local support resources should be able to provide guidance and
assistance in configuring an appropriate network and workstations.
HARDWARE
FILE SERVER
Uninterruptible power supply providing 10-15 minutes reserve power
is highly recommended. DOS-compatible network software is required.
We also recommend that equipment and procedures be in place for
regular system back-up.
Hard drive requirements are highly dependent on your usage of
EMASPLUS and other intended uses of the network. 35 Megabytes of
disk space are required for the software and support tables.
Typical users reserve approximately 600 Megabytes of disk space for
every 50,000 records. This can vary substantially.
RECOMMENDED WORKSTATIONS
For new purchases and workstations used for batch processes such as
reporting, and importing and exporting, the following workstation
is recommended:
Pentium processor, VGA color monitor w/100MB available hard
disk space*, 12MB RAM, and DOS 6.0 or higher.
* EMASPLUS TAKES SUBSTANTIAL ADVANTAGE OF PERFORMANCE GAINED BY
TEMPORARY WORK FILES OF 20 TO 60 MB LOCAL AT THE WORKSTATION.
DISKLESS WORKSTATIONS MAY BE USED BUT ADEQUATE INDIVIDUAL WORKSPACE
WILL BE REQUIRED ON A NETWORK SERVER. EXPERIENCE INDICATES THAT
DISKLESS WORKSTATIONS WILL EXPERIENCE DRAMATICALLY SLOWER
PERFORMANCE DUE TO EXTRA NETWORK TRAFFIC.
<PAGE>
MINIMUM WORKSTATIONS
Existing equipment can be used for telecounseling if it meets the
following minimium requirements:
486 CPU, VGA color monitor w/100MB available hard disk space*,
8MB RAM, and DOS 6.0 or higher.
PERFORMANCE
Certain processes require adequate system performance to be
time-efficient. For example, import speed is highly dependent upon
your hardware and network configuration. For example, clients using
various hardware and network configurations report import speeds
varying from 4 to 12 records per minute. This speed depends on the
combined performance of your server, network, and individual work
stations.
MODEM
A 28.8 Hayes-compatible modem on one workstation and a dedicated
analog telephone line are required for technical support.
PRINTERS
EMASPLUS supports printing with HP LaserJet III and higher printers.
*EMASPLUS TAKES SUBSTANTIAL ADVANTAGE OF PERFORMANCE GAINED BY
TEMPORARY WORK FILES OF 20 TO 60 MB LOCAL AT THE WORKSTATION.
DISKLESS WORKSTATIONS MAY BE USED BUT ADEQUATE INDIVIDUAL WORKSPACE
WILL BE REQUIRED ON A NETWORK SERVER. EXPERIENCE INDICATES THAT
DISKLESS WORKSTATIONS WILL EXPERIENCE DRAMATICALLY SLOWER
PERFORMANCE DUE TO EXTRA NETWORK TRAFFIC.