EXHIBIT 10.05
MCI SYSTEMHOUSE CORP./CALIBER LEARNING NETWORK, INC.
ALLIANCE FOR DISTANCE LEARNING
PROGRAM DEVELOPMENT AGREEMENT
THIS PROGRAM DEVELOPMENT AGREEMENT (this "AGREEMENT") is made and entered into
as of the 2nd day of March, 1998 (the "EFFECTIVE DATE"), by and between CALIBER
LEARNING NETWORK, INC. ("CALIBER"), a Maryland corporation with its principal
place of business at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and MCI
SYSTEMHOUSE CORP. ("MCIS"), a Delaware corporation with offices at Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000.
RECITALS
A. Caliber is the owner of a network of professional classroom facilities
linked by a proprietary distance learning infrastructure integrating
state-of-the-art satellite transmission, two-way video conferencing,
wide-area network computing and Internet technologies (the "CALIBER
LEARNING
NETWORK" or the "NETWORK"). Caliber's classroom facilities are grouped
into campuses ("CALIBER CAMPUSES") partitioned into classrooms each with a
capacity of approximately 24 students ("CLASSROOMS").
B. MCIS has organized a professional development institute known as the MCI
Systemhouse Institute (the "INSTITUTE"). In connection with the
Institute, MCIS desires to offer one or more of the following courses of
instruction or seminar events ("COURSES") through the Alliance, utilizing
the Caliber Learning Network: (a) internally targeted LEAD courses,
technology courses, and/or new strategic skills courses designed to build
the intellectual capital of MCIS, enhance recruiting, and improve employee
retention; and (b) client-targeted technology seminars showcasing MCIS's
products and services.
TERMS AND CONDITIONS
In consideration of the mutual covenants and conditions set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Caliber and MCIS agree as follows:
1. DEFINITIONS
1.1. As used in this Agreement, the following terms shall have the
following meanings:
"APPROVED LOCATION" means any location selected by MCIS at its sole
discretion, but after consultation with Caliber, provided in any event
that such location shall be available for lease by Caliber; and
provided, further, that such location shall not be subject to any
zoning, building, or other similar law, code, regulation, or ordinance
prohibiting the use of such location as a Caliber Campus.
"COMPETITIVE COURSE" means any distance learning course or program directly
or indirectly competitive with any Course offered by MCIS through the
Network during the Term.
"DERIVATIVE WORK" means the adaptation and formatting of the MCIS Course
Content for delivery through the Network, including but not limited to
video tape versions, CD-ROM versions, Internet versions, Power Point
or similar presentations, and other derivative works.
"MCIS COURSE CONTENT" means presentations, texts and other tangible
expressions of the original intellectual, marketing, or other content
of a Course.
"NETWORK RENTAL DAY" means usage of the Network in any day for more than
four (4) hours of broadcast time but not exceeding eight (8) hours of
broadcast time; and "PARTIAL NETWORK RENTAL DAY" means usage of the
Network in any day for less than four (4) hours of broadcast time.
"NEW CALIBER CAMPUS" means a Caliber Campus not listed on Schedule D
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hereto, such schedule being a list of Caliber Campuses which are
operational or under construction as of the Effective Date.
A "TRANSMISSION FAILURE" in a Classroom means, with respect to any Course
offering, the failure or material disruption of Network audio, video,
or internet/intranet transmissions or connectivity such that, in MCIS'
sole judgment, the participants taking the Course in that Classroom
cannot complete the Course as originally designed and intended.
1.2. The following capitalized terms are defined in the following sections
of this Agreement:
"Advisory Committee" Section 10.2
"Agreement" Preamble
"Alliance" Section 10.1
"Caliber" Preamble
"Caliber Marks" Section 13.2
"Caliber Representative" Section 7.2
"Cancellation Fee" Section 3.3
"Confidential Information Section 12.4.2
"Course Delivery Fees" Section 7.1
"Course Schedule" Section 3.1
"Course Procurement Notice" Section 3.2
"Effective Date" Preamble
"Maximum Design Full Day Course" Section 7.1.1
"Maximum Design Half Day Course" Section 7.1.3
"MCIS" Preamble
"MCIS Marks" Section 13.1
"MCIS Representative" Section 7.2
"Minimum Volume Commitment" Section 8
"Minimum Design Full Day Course" Section 7.1.2
"Minimum Design Half Day Course" Section 7.1.4
"New Campus Specifications" Section 9.1.1
"Notice of Cancellation" Section 3.3
"Program Management Fee Section 7.2
"Program Management Services Section 6
"Term" Section 2
"Two Day Maximum Design Course" Section 7.1.5
"Work Product" Section 12.1
2. TERM
This term of this Agreement shall be one (1) year commencing on the Effective
Date, subject to the right of either party to terminate this Agreement
earlier as provided herein. Upon the expiration of the initial one-year
term, this Agreement may be renewed by the parties upon such terms and
conditions as the parties may agree in writing. The period of effectiveness
of this Agreement is hereinafter referred to as the "TERM."
3. COURSE IDENTIFICATION AND SCHEDULING
3.1. Attached hereto as SCHEDULE A is preliminary list of Courses that may
be offered through the Network under this Agreement (the "COURSE
SCHEDULE") subject to the issuance of Course Procurement Notices as
provided herein. The Course Schedule may
be modified (i.e. any Course listed therein may be rescheduled, added,
or deleted) by MCIS upon written notice to Caliber from time to time.
3.2. Unless the parties mutually agree to a shorter time period in relation
to any Course(s), at least sixty (60) days prior to the desired
delivery of any Course, MCIS will notify Caliber by separate written
purchase order or other writing (a "COURSE PROCUREMENT NOTICE"), which
Notice shall be final and binding on MCIS, identifying: (i) the type
of Course to be offered, (ii) the length of the Course; (iii)
enrollment and participation fees, and (iv) the locations, dates,
times required by MCIS for the offering. Caliber shall use its best
efforts to accommodate MCIS's preferences concerning locations, dates,
and times, and any changes thereto, but it is understood and agreed by
MCIS that final scheduling shall be jointly determined by the parties
based on Network availability. Caliber shall give priority status to
MCIS's requests for bookings on any given date, unless a firm booking
of the Network has already been made.
3.3. After a Course Procurement Notice is issued, MCIS may cancel or
reschedule the Course upon written notice to Caliber ("NOTICE OF
CANCELLATION"), subject to the payment of the
cancellation/rescheduling fee, if any, specified in this Section 3.3
(the "CANCELLATION FEE").
3.3.1. If MCIS gives Notice of Cancellation at least forty-five (45)
days prior to the date scheduled for delivery of the Course,
MCIS may cancel or reschedule the Course * .
3.3.2. If MCIS gives Notice of Cancellation less than forty-five (45)
days but at least thirty (30) days prior to the scheduled
delivery of the Course, MCIS shall * .
3.3.3. If MCIS gives Notice of Cancellation less than thirty (30)
days but at least fifteen (15) days prior to the scheduled
delivery of the Course, MCIS shall * .
3.3.4. If MCIS gives Notice of Cancellation less than fifteen (15)
days prior to the scheduled delivery of the Course, MCIS shall
* .
3.4. Upon receipt of a Notice of Cancellation, Caliber agrees to use its
reasonable best efforts to procure the use of the Network and/or the
Classrooms at Caliber's usual rates by alternate, third party end-
users for the canceled Network Rental Days or Partial Network Rental
Days, as the case may be; and, to the extent Caliber is successful in
doing so, the
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
cancellation/rescheduling fee otherwise paid or payable by MCIS under
Section 3.3. shall * .
4. FORMATTING OF COURSE CONTENT
Upon receipt of a Course Procurement Notice for any Course, Caliber will be
responsible for formatting and adapting the underlying MCIS Course Content
as necessary so that the Course is suitable for delivery over the Caliber
Learning Network. MCIS shall cooperate with Caliber and provide such
reasonable assistance as Caliber may require for this purpose.
5. DELIVERY OF COURSE OFFERINGS
5.1. Course Delivery. Caliber will deliver each Course identified in a
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Course Procurement Notice through the Caliber Learning Network on such
dates and times and at such locations as the parties may agree. In
connection with the delivery of each Course, Caliber will:
5.1.1. Provide the software and computer programs, including, without
limitation, class interaction support software, necessary to
deliver the Course.
5.1.2. Provide the hardware components necessary to deliver the
Course and create a two-way audio and video environment,
including, without limitation, a satellite dish and integrated
receiver-decoder to receive the video and audio signals at
each Caliber Campus, and workstations, cameras, video monitors
and related components necessary to return audio and video
signals from each such Campus.
5.1.3. Provide maintenance and related support services necessary to
maintain the software and computer programs and the hardware
components required for delivery of the Course.
5.1.4. Have at least one (1) Caliber employee during the Course
session available at each Caliber Campus where the Course is
being offered to provide assistance to Course participants.
5.1.5. Provide the Course design, management for delivery of that
Course, and the necessary rehearsal time of no less than one
full day for each day the Course is delivered.
5.2. Network Performance. Caliber agrees that it is responsible for the
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direction of high quality video and audio transmission of each Course
and responsible for directing the presentation of each Course
instructor and the interaction of all participants during each Course.
Caliber agrees to use its best efforts to simulate the interaction
between instructor and participants possible in one-to-one student-
instructor classes. Caliber also agrees to manage the transmission of
all internet/intranet content during the Course. If a Transmission
Failure occurs in any Classroom or Classrooms booked for a Course
offering, Caliber shall * .
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* Text omitted pursuant to a request for confidential treatment and
filed separately with the Securities and Exchange Commission.
Notwithstanding the foregoing, if a Transmission Failure occurs in
twenty percent * or more of the total number of Classrooms booked
for a Course, Caliber (a) shall * or (b) if MCIS so elects, shall
* . Except as provided in this Section, Caliber makes no warranty,
express or implied, concerning the performance of the Network or any
component thereof.
6. PROGRAM MANAGEMENT SERVICES
In connection with each Course offering and the overall implementation of the
Alliance established hereby, Caliber shall provide to MCIS the services
identified on SCHEDULE B hereto ("PROGRAM MANAGEMENT SERVICES").
7. FEES AND PAYMENT
7.1. Course Delivery Fee. For each Course delivered by Caliber hereunder,
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MCIS agrees to pay to Caliber the following delivery fees ("COURSE
DELIVERY FEES"), or such other fees as the parties may mutually agree
upon from time to time, but in any case not to exceed:
7.1.1. * .
7.1.2. * .
7.1.3. * .
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
7.1.4. * .
7.1.5. * .
7.1.6. The parties will establish mutually agreeable guidelines
pursuant to which Course Delivery Fees will be reduced
whenever and wherever circumstances warrant. Course Delivery
Fees shall be payable in accordance with Caliber invoices
issued pursuant to this Agreement from time to time as and
when the underlying services are rendered. Such invoices are
due and payable within thirty (30) days of receipt thereof by
MCIS.
7.2. Program Management Fee. Caliber shall appoint a single
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representative to act as MCIS's prime point of contact under this
Agreement, with responsibility for management of Caliber's involvement
in the Alliance (the "CALIBER REPRESENTATIVE"). In consideration of
the Program Management Services provided by Caliber hereunder, and the
appointment of the Caliber Representative, MCIS agrees to pay to
Caliber a monthly management fee of * (the "PROGRAM MANAGEMENT
FEE"). Except as expressly noted in this Section, Caliber shall be
responsible for the costs of * . The Program Management Fee due in
any given month shall be invoiced and shall be payable within thirty
(30) days of receipt thereof by MCIS. MCIS shall appoint a single
representative to act as Caliber's prime point of contact under this
Agreement, with responsibility for management of MCIS's involvement in
the Alliance (the "MCIS REPRESENTATIVE"). MCIS shall be responsible
for the costs of its own personnel pursuant to this Agreement,
including the MCIS Representative.
7.3. Additional Classrooms. It is understood and agreed by MCIS that the
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Course Delivery Fees set forth in this Section shall apply to Course
offerings delivered to a maximum of (50) Classrooms. In the event, at
MCIS's request, a Course is delivered to more than fifty (50)
Classrooms:
7.3.1. The Course Delivery Fee otherwise payable under Sections
7.1.1, 7.1.2 or 7.1.5 shall be increased by * and
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
7.3.2. The Course Delivery Fee otherwise payable under Section 7.1.3
or 7.1.4 shall be increased by * .
8. MINIMUM VOLUME COMMITMENT
In consideration of the preferential pricing set forth in the preceding section,
MCIS hereby agrees that it shall pay Caliber * (herein referred to as the
"MINIMUM VOLUME COMMITMENT") during the Term for the activities
contemplated herein, which sum shall include the cumulative amounts paid to
Caliber for: (a) Course Delivery Fees; (b) the Program Management Fee; and
(c) funding for Broadcast '98.
9. EXPANSION OF RELATIONSHIP; PREFERRED PARTNER COVENANTS
9.1. Construction of Additional Campuses.
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9.1.1. * Threshold. At such time, if any, as MCIS shall have
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delivered or, as evidenced by Course Procurement Notices,
committed to deliver through the Network during the Term that
number of Course Offerings as shall have generated or will
generate fees to Caliber under this Agreement equal to or
exceeding * over and above the Minimum Volume Commitment,
including the Program Management Fee and funding for Broadcast
'98, Caliber shall construct one (1) New Caliber Campus in
Canada at an Approved Location and meeting the general
specifications set forth on SCHEDULE C hereto (the "NEW CAMPUS
SPECIFICATIONS").
9.1.2. * Threshold. At such time, if any, as MCIS shall have
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delivered or, as evidenced by Course Procurement Notices,
committed to deliver through the Network during the Term that
number of Course Offerings as shall have generated or will
generate fees to Caliber under this Agreement equal to or
exceeding * over and above the Minimum Volume Commitment,
including the Program Management Fee and funding for Broadcast
'98, Caliber shall construct a second New Caliber Campus in
Canada at an Approved Location meeting the New Campus
Specifications.
9.1.3. * Threshold. At such time, if any, as MCIS shall have
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delivered or, as evidenced by Course Procurement Notices,
committed to deliver through the Network during the Term that
number of Course Offerings as shall have generated or will
generate fees to Caliber under this Agreement equal to or
exceeding * over and above the Minimum Volume Commitment,
including the Program Management Fee and funding for Broadcast
'98, Caliber shall construct a third New Caliber Campus in
Canada at an Approved Location meeting the New Campus
Specifications.
9.1.4. Waiver of Conditions. Caliber in its sole and absolute
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discretion may elect to waive the minimum volume thresholds
set forth in Sections 9.1.1 through 9.1.3 and to construct or
commence the construction of the New Caliber Campuses
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
contemplated by this section at an Approved Location
notwithstanding the failure of MCIS to meet such minimum
thresholds.
9.1.5. Time. Caliber agrees that each New Caliber Campus it is
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required to construct under this Section 9.1 shall be fully
operational not later than one hundred twenty (120) days
following the later of (a) the achievement of the minimum
volume thresholds associated with such New Caliber Campus
under Section 9.1 or (b) the identification by MCIS of the
Approved Location for such New Caliber Campus.
9.2. Use of Canadian Sites Pending Construction. Until such time as New
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Caliber Campuses are constructed by Caliber in Canada pursuant to this
Agreement, Caliber's existing facilities in Montreal, Toronto and
Vancouver, with each location having twelve (12) desktops able to
accommodate 2 students each, for a total of twenty-four (24) students
per location, will be utilized; and, should MCIS require additional
classroom space in Canada for the delivery of any Course, Caliber
shall procure such additional classroom space from a third-party
provider, in which event MCIS shall pay to Caliber a classroom
procurement fee equal to * , or such other fee as the parties may
agree upon in writing in advance, which fee shall be in addition to
any Course Delivery Fees and any other fees otherwise payable by MCIS
hereunder in connection with the Course. Notwithstanding the
foregoing, MCIS shall not be obligated to pay any classroom
procurement fee under this section if and to the extent the need for
such alternate classroom space is attributable to the failure of
Caliber to construct any New Caliber Campus within the one hundred
twenty (120) day period contemplated by Section 9.1.5, it being
understood and agreed by the parties that, without limiting MCIS's
other rights and remedies as provided in this Agreement, * .
9.3. Preferred Partner. During the Term, Caliber shall not offer, develop,
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or assist in the development of any Competitive Course for or in
conjunction with the following systems integration or
telecommunications competitors of MCIS, including their affiliates:
Electronic Data Systems
Sprint
AT&T
Xxxxxxxx Consulting
IBM/ISSC/ISM
CSC
9.4. Most Favored Customer. MCIS shall have the right to enroll its
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employees in any Caliber IT course offered during the Term at the
lowest prices for such course which Caliber offers to its best
customers, inclusive of any special discount or volume rebate. MCIS
enrollees may select from the full syllabus of Caliber courses, and,
if the parties mutually determine that there is sufficient volume of
such enrollees, Caliber shall customize the course offering for those
enrollees, in which event such customization
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
shall be an additional service under Section 11, subject in any event
to the consent of Caliber's content partner.
10. ALLIANCE ADMINISTRATION
10.1. Name. The joint distance learning initiative of the parties
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evidenced by this Agreement shall be known and referred to by the
parties in public announcements of the same as the Alliance for
Distance Learning (the "ALLIANCE").
10.2. Advisory Committee. The parties agree to constitute an advisory
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committee which shall have general oversight authority over the
administration of Course offerings and for the direction of the
Alliance generally (the "ADVISORY COMMITTEE"). The Advisory Committee
shall meet not less frequently than quarterly in accordance with such
by-laws or other rules of order as the parties may establish.
Membership on the Advisory Committee will be composed of three MCIS
appointees and two Caliber appointees. Decisions will be reached on a
majority vote basis. The Chair of the Advisory Committee shall be an
MCIS nominee. The Caliber Representative will provide quarterly
reports to the Advisory Committee.
10.3. Performance Criteria. Through the Advisory Committee, the parties
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will jointly develop a set of performance criteria to evaluate the
Courses and on the basis of such criteria shall review the
performance of the Alliance from time to time and in any event at
least sixty (60) days prior to the expiration of the initial one-year
Term in order to assist the parties in their respective
determinations whether to renew this Agreement or otherwise continue
the Alliance.
10.4. Implementation Audits. MCIS shall have the right to observe the
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delivery of each Course at all Caliber Campuses and other locations
authorized by MCIS offering the Course and to request reasonable
changes in the implementation or delivery of the Course to address
any problems identified by MCIS.
11. ADDITIONAL SERVICES
11.1. Types of Services. Notwithstanding the fact that some or all of the
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services listed below may be part of the Course development and
delivery hereunder, Caliber shall use its best efforts on a case by
case basis to provide additional services outside the scope of this
Agreement at MCIS's request, which services may include, but shall
not be limited to, one or more of the following as the parties may
agree:
11.1.1. Classroom and equipment rental.
11.1.2. Video roll-ins, enhanced video production, additional power
points, slides, animation, voice-overs, software demos,
creation of software labs, the loading of specialized
software on file servers, or creation, loading and
maintenance of software which is not a part of the Caliber
platform.
11.1.3. Coordinating student registration and enrollment using
inbound toll-free numbers, web-based registration, or other
methodologies.
11.1.4. Collection and disbursement of participant enrollment fees
and other revenues derived from Course offerings.
11.1.5. Development and implementation of marketing plans and
strategies.
11.2. Pricing. Such additional services are not included in the Program
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Management Fee or Course Delivery Fees and shall be provided to MCIS,
if at all, at such prices as the parties may agree; provided,
however, that such additional services shall be provided to MCIS at
the lowest price which Caliber offers to its best customers,
inclusive of special discounts and volume rebates.
11.3. Multi-Point Video Conferencing Facilities. MCIS may obtain
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multi-point video conferencing facilities from Caliber at a rate of
* for a full day (consisting of more than four (4) hours of use
not to exceed a maximum of eight (8) hours of use) and * per
partial day (consisting of less than four (4) hours of use). It is
understood that such rate includes only the use of video conferencing
facilities and does not include studio facilities, program
management, facilitators, instructional design, and the like.
11.4. Alliance Revenues and Income. Any revenue generated through the
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delivery of Courses to the public by the Alliance shall, subject to
the payment by MCIS of Course Delivery Fees, Program Management Fees,
and any other fees payable by MCIS under this Agreement, be for
MCIS's benefit and MCIS shall be responsible for the administration,
including invoicing, collection, and audit, of such MCIS revenue.
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
12. OWNERSHIP AND USE
12.1. Ownership. Except as otherwise expressly agreed to by the parties
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in this Agreement or otherwise in writing after the Effective Date
hereof, MCIS and Caliber shall be under no obligations to develop a
particular product or service jointly or through the initiatives set
forth in this Agreement. If a feature, function, innovation, product,
offering, or other original literary, artistic, technical, or other
material (herein, a "WORK PRODUCT") is developed by MCIS alone, or in
collaboration with Caliber or a third party, MCIS shall * and shall
have * and Caliber shall have * . Subject to Section 12.2, MCIS
shall have * . Nothing herein is intended to give either party any
title to the other party's pre-existing intellectual property
rights. The parties understand and agree that MCIS will * . MCIS
understands and agrees that Caliber is * . "Ownership," as used
in this section, shall mean all proprietary rights, including,
without limitation, copyright, trade secrets and patents.
12.2. Use Restrictions.
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12.2.1. Other than as necessary to perform its obligations under
this Agreement, Caliber shall not license, use or permit any
use of the Derivative Work without the express prior written
consent and approval of MCIS.
12.2.2. Any provision of this Agreement to the contrary
notwithstanding, following the delivery and broadcast of a
Course over the Network, MCIS agrees that, notwithstanding
Section 12.1, MCIS shall not re-broadcast, re-transmit, or
otherwise use or license others to use any videotape of such
broadcast other than for internal training and/or
communications, except with Caliber's prior written consent,
which consent shall not be unreasonably withheld.
12.3. Applications and Filings. MCIS and Caliber shall cooperate in good
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faith with one another, at their own expense, to make all necessary
applications and filings, including patent and copyright registration
and other legal protections, both U.S. and foreign, to protect the
interests of the parties, or either of them, in the Courses and the
Derivative Work, as provided in this Agreement.
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* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
12.4. Confidentiality.
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12.4.1. Caliber shall take reasonable and necessary precautions to
prevent the unauthorized copying, removal, alteration,
disclosure, use, loss of or improper access to the MCIS
Course Content, the Derivative Work, and the Courses.
12.4.2. MCIS acknowledges that, during the Term and in the course of
performing its obligations hereunder, it may be the
recipient of or become exposed to proprietary and
confidential information of Caliber in written or other
tangible form (including on magnetic media) or by oral,
visual, or other means, including, but not limited to,
information marked or otherwise identified as confidential
or proprietary, customers or active prospects, strategic
plans and materials, marketing strategies, business data,
financial information, distance learning systems, and
software (such information of either party being
collectively referred to as "CONFIDENTIAL INFORMATION").
MCIS acknowledges and agrees that such Confidential
Information disclosed by Caliber shall remain the exclusive
property of Caliber, and that MCIS shall not disclose, use,
copy, or make available such Confidential Information to
anyone, except as may be required in the course of
performing its obligations hereunder. MCIS agrees to only
make such Confidential Information available to employees on
a need-to-know basis.
12.4.3. Caliber acknowledges that, during the Term and in the course
of performing its obligations hereunder, it may be the
recipient of or become exposed to Confidential Information
of MCIS. Caliber acknowledges and agrees that such
Confidential Information disclosed by MCIS shall remain the
exclusive property of MCIS, and that Caliber shall not
disclose, use, copy, or make available such Confidential
Information to anyone, except as may be required in the
course of performing its obligations hereunder. Caliber
agrees to only make such Confidential Information available
to employees on a need-to-know basis.
12.4.4. Caliber and MCIS agree Confidential Information is unique
and valuable, and that money damages would not be a
sufficient remedy for any breach of this Section 12.4 and
that, in addition to all other remedies, both parties shall
be entitled to specific performance and injunctive and
equitable relief as a remedy for any such breach. Caliber
and MCIS agree to be responsible for any breach of this
Section 12.4 by any of its employees, officers, directors or
agents and also agrees to pay any and all reasonable
attorney's fees incurred by either party in enforcing the
provisions of this Section 12.4.
12.4.5. Each party shall protect the Confidential Information of the
other party from disclosure contrary to the terms of this
Section 12.4 using the same degree of care used to protect
its own confidential or proprietary information, but in any
case using no less than a reasonable degree of care.
12.4.6. The restrictions of this Agreement on use and disclosure of
Confidential Information shall not apply to information
that:
12.4.6.1. Was publicly known at the time of the
disclosing party's communication thereof to the
receiving party;
12.4.6.2. Becomes publicly known through no fault of the
receiving party subsequent to the time of the
disclosing party's communication thereof to the
receiving party;
12.4.6.3. Was in the receiving party's possession free of
any obligation of confidence at the time of the
disclosing party's communication thereof to the
receiving party;
12.4.6.4. Is developed by the receiving party
independently of and without reference to any
of the disclosing party's Confidential
Information or other information that the
disclosing party disclosed in confidence to any
third party;
12.4.6.5. Is rightfully obtained by the receiving party
without burden of confidentiality from third
parties authorized to make such disclosure
without restriction; or
12.4.6.6. Is identified by the disclosing party as no
longer proprietary or confidential.
12.4.7. In the event the receiving party is required by law,
regulation or court order to disclose any of the disclosing
party's Confidential Information, the receiving party will,
to the extent permitted by law, promptly notify the
disclosing party in writing prior to making any such
disclosure in order to facilitate the disclosing party
seeking a protective order or other appropriate remedy from
the proper authority. The receiving party agrees to
cooperate with the disclosing party in seeking such order
or other remedy. The receiving party further agrees that if
the disclosing party is not successful in precluding the
requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion
of the Confidential Information which is legally required
and will exercise all reasonable efforts to obtain reliable
assurances that confidential treatment will be accorded the
Confidential Information.
12.4.8. All Confidential Information disclosed under this Agreement
(including information in computer software or held in
electronic storage media) shall be and remain the property
of the disclosing party. All such information in tangible
form shall be returned to the disclosing party promptly
upon written request or the termination or expiration of
this Agreement, and shall not thereafter be retained in any
form by the receiving party.
12.4.9. The disclosing party shall not have any liability or
responsibility for errors or omissions in, or any decisions
made by the receiving party in reliance on, any
Confidential Information disclosed under this Agreement.
13. MCIS AND CALIBER MARKS
13.1. MCIS Marks. Caliber acknowledges that MCIS owns, is licensed to use,
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or otherwise possesses various registered and unregistered
trademarks and service marks ("MCIS MARKS"). MCIS may, from time to
time in writing, grant to Caliber the non-exclusive, limited right
and license to use designated MCIS Marks for and during the Term in
connection with the implementation of the Alliance and the delivery
of Courses hereunder. Caliber expressly acknowledges MCIS's rights
in and to the MCIS Marks and agrees not to represent in any manner
that Caliber has acquired any ownership rights in the MCIS Marks.
13.2. Caliber Marks. MCIS acknowledges that Caliber possesses various
-------------
registered and unregistered trademarks and service marks, including
but not limited to "Caliber", "Caliber Learning Network," "Caliber
Learning Campus," and the Caliber peak logo ("CALIBER MARKS").
Caliber may, from time to time in writing, grant to MCIS the non-
exclusive, limited right and license to use the Caliber Marks for
and during the Term in connection with the implementation of the
Alliance and the delivery of Courses hereunder. MCIS expressly
acknowledges Caliber's rights in and to the Caliber Marks and agrees
not to represent in any manner that MCIS has acquired any ownership
rights in the Caliber Marks.
13.3. Misuse of Marks. Each party understands and agrees that any
---------------
use of the other party's marks, other than as expressly authorized
by this Agreement, without the other party's prior written consent,
is an infringement of such other party's rights in and to its marks
and that the right granted herein to use the other party's marks
does not extend beyond the termination or expiration of this
Agreement. Each party expressly covenants that, during the term of
this Agreement and thereafter, such party shall not, directly or
indirectly, commit any act of infringement or contest or aid others
in contesting the validity of such other party's right to use its
marks or take any other action in derogation thereof.
13.4. Monitoring. Each party acknowledges an obligation to monitor own
----------
use of the other party's marks and agrees to do so. Each party shall
notify the other of any claim, demand, cause of action of which it
becomes aware that the other party may have based upon or arising
from any unauthorized attempt by any person or entity to use such
other party's marks, any colorable variation thereof, or any other
xxxx, name or indicia in which such other party has or claims a
proprietary interest and shall assist such other party, upon its
request and at such other party's expense, in taking action
including legal action, if any, as such other party may deem
appropriate to halt such activities, but shall take no action nor
incur any expenses on such other party's behalf without such other
party's prior written approval.
13.5. Requirements. Each party further agrees and covenants to use
------------
the other party's marks solely in the manner prescribed by such
other party, to observe all laws with respect to the registration of
trade names and assumed or fictitious names, to include in any
application therefor a statement that such party's use of the other
party's marks is limited by the terms of this Agreement, and to
provide such other party with a copy of any such application and
other registration document(s); and to observe such requirements
with
respect to trademark and service xxxx registrations and copyright
notices as the other party may, from time to time, require,
including, without limitation, affixing "SM",("TM"), or "(R)"
adjacent to such other party's marks.
13.6. Guidelines. Each party shall from time to time provide written
----------
guidelines to the other party, regarding the proper of the party's
marks. Public announcements, press releases, catalog copy, copy and
graphics for print advertising, information booklets, and
promotional literature that a party proposes to use in conjunction
with this Agreement or any Course shall be submitted to the other
party for review, editing and comment, at least thirty (30) days
prior to intended use or reproduction (whichever is to occur first).
Until such time, if any, as approval is received, the material shall
not be used by the party requesting approval. Components or
advertisements previously approved require re-submission and re-
approval before they may be used subsequently. Each party shall
designate for the other party's contact a person on their respective
staffs who shall have responsibility for the review and response
procedures described in this paragraph. Each party shall provide the
other party with its then current published materials relating to
products and services relevant to this Agreement from time to time.
Neither party shall make any representations or warranties to others
concerning the products or services of the other party that are
inconsistent with those made by the other party in the most current
published materials provided by such other party in accordance with
the above.
14. COOPERATION
Upon execution of this Agreement, MCIS and Caliber each shall identify a
sufficient number of qualified persons from their respective organizations
who will be responsible for the coordination, design, development and
implementation of the Alliance under this Agreement.
15. PARTICIPANT NAMES
Each party will have access to the names of all Course participants, and with
the prior approval of the other party, which approval shall not be
unreasonably withheld, such party may use those names in its mailings and
other marketing-related activities. Without limiting the generality of the
foregoing, registration forms for Courses shall enable Course participants
to indicate their willingness or unwillingness to receive such materials.
16. DEFAULT AND TERMINATION
16.1. Notice and Cure. This Agreement may be terminated by either party
---------------
if the other party is in breach of any material provision of this
Agreement, but only after written Notice of Default and opportunity
to cure as provided herein has been given to the breaching party.
With respect to a monetary default, the notice of default must
provide for an opportunity to cure of at least twenty (20) days
following receipt of the notice. With respect to a non-monetary
default, the notice of default must provide for an opportunity to
cure of at least thirty (30) days following receipt of the notice.
If the party receiving the notice has not cured the breach before
the cure date stated in the notice, the party giving notice may
terminate this Agreement by giving the breaching party a written
Notice of Termination, stating the date on which the termination is
to be effective. * .
----------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
* . With respect to incurable breachesdescribed in Section
16.2, a period of cure does not have to be provided.
Notwithstanding the delivery of a Notice of Default or Notice of
Termination by either party to the other, all obligations to
perform services shall continue in effect and be duly observed
and complied with by both parties until the effective date of any
termination. * .
16.2. Material Breaches That Cannot Be Cured. The following types of
--------------------------------------
activity are acknowledged by the parties to be incurable,
material breaches and are cause for immediate termination by the
non-breaching party effective upon delivery of written Notice of
Termination:
16.2.1. * .
16.2.2. * .
16.2.3. * .
16.3. Use of Marks After Termination. Upon termination of this
------------------------------
Agreement for any reason, all rights to use and promote the
Courses in conjunction with the other party's marks or otherwise
shall immediately cease.
16.4. Dispute Resolution. The parties hereto agree to attempt to settle
------------------
any dispute, controversy or difference which may arise between or
among them in connection with this Agreement or any Schedule
attached hereto by good faith discussions between or among the
Caliber Representative and MCIS Representative. If resolution
cannot be achieved by such representatives within ten business
days of referral to them, the dispute will be referred to the
Advisory Committee. If the Advisory Committee is unable to
resolve the dispute by a unanimous decision within thirty days of
referral to it, either party may pursue whatever remedies are
available to it under this Agreement, at law, or in equity.
17. NOTICES
Any notices or other communications required or which may be given by either
party to the other party under this Agreement shall be in writing and may
be sent by facsimile. However, the original shall be sent either by
overnight courier, with a verified receipt, or by certified mail, return
receipt requested, postage prepaid and addressed to and at the address
stated below or to such other address as the parties shall subsequently
designate to each other by notice given in accordance with this Section.
Such notice shall be deemed to be sufficiently given when the original is
received by the receiving party.
----------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
FOR MCIS:
SHL Systemhouse Co.
Att'n: Xxxxxxx Xxxxxxxx
Vice President Marketing
00 X'Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx
X0X 0X0
(e-mail:xxxxxxxxx@xxx.xxx)
Fax: 613/000-0000
with a copy to: Xxxx XxXxxxxxxx, Vice President, Chief Legal Counsel and
Secretary
Fax: 416/000-0000
FOR CALIBER:
Caliber Learning Network, Inc.
Attn: Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(e-mail: Xxxxxxx@xxxxxxx.xxx)
with a copy to: O. Xxxxxx Xxxxx, General Counsel
Fax: 410/000-0000
18. INDEPENDENT CONTRACTORS
Under this Agreement, each party agrees that it will perform as an independent
contractor and not as an agent or employee of the other party. Nothing in
this Agreement is intended to or shall be deemed to create a partnership or
joint venture of any kind. Neither party shall have the authority to, or
shall attempt to, bind or commit the other party for any purpose except as
expressly provided herein.
19. APPLICABLE LAW
This Agreement shall be deemed to have been made in the State of New York and
shall be construed and enforced in accordance with, and the validity and
performance hereof shall be governed by, the laws of the State of New York,
without regard to conflict of laws principles. Judicial proceedings
regarding any matter arising under the terms of this Agreement shall be
brought solely in the federal or local courts of the State of New York.
20. FORCE MAJEURE
Neither party shall be liable for delay or failure in performance of any of its
obligations under this Agreement when such delay or failure arises from
events or circumstances beyond the reasonable control of such party
(including, without limitation, acts of God, fire, flood, war, explosion,
sabotage, terrorism, embargo, civil commotion, acts or omissions of any
government entity, or labor disputes).
21. WAIVER
No failure on the part of either party to exercise, no delay in exercising, and
no course of dealing with respect to any right, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
22. ASSIGNMENT
Caliber may not assign this Agreement, or any part thereof, without the prior
written approval of MCIS, which approval shall not be unreasonably
withheld. MCIS may assign this Agreement at any time upon notice to
Caliber, provided that such assignment shall not relieve MCIS of its
obligations hereunder.
23. SURVIVAL BEYOND TERMINATION
23.1. The parties' obligations arising under * .
23.2. * .
24. INDEMNIFICATION
24.1. * .
24.2. * .
25. GENERAL
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and all previous agreements or discussions
between the parties relating to the subject matter hereof, written or oral,
will be terminated and/or superseded by this Agreement; however, this
Agreement shall not supersede or in any way affect the validity or
enforceability of MCIS purchase orders with respect to the subject matter
hereof outstanding on the Effective Date. Payment of any amounts due
pursuant to such purchase orders shall be credited toward the Minimum
Volume Commitment. Any representation, warranty or condition, written or
---------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
otherwise, not expressly contained in this Agreement or in an authorized
written amendment thereto shall not be relied upon by either party. Each of
the parties acknowledge that it has not been induced to enter into this
Agreement by any representation not specifically stated herein. This
Agreement may only be changed or modified in writing signed by both
parties. If any provision of this Agreement is held invalid, the validity
of the remainder of this Agreement shall not be affected. Each party agrees
not to directly solicit or hire any employee of the other during the Term,
and for a period of one year after the termination or expiration of this
Agreement, without the other party's prior written permission. This
Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The parties agree and confirm that
the provisions of Section 9.3, 9.4, and 11.2 are fair and reasonable in the
commercial circumstances of this Agreement, protect the legitimate business
interests of the parties, and do not constitute any undue restraint of
trade, and that the consideration provided under this Agreement adequately
and fairly compensates the parties in connection with such designations,
which have been an inducement to enter into this Agreement.
26. LIMITATION OF LIABILITY
* .
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as at
the day and year first above written.
CALIBER LEARNING NETWORK, INC. MCI SYSTEMHOUSE CORP.
By: ___________________________ By______________________________
Xxxxx X. Xxxxxx, President
Name:___________________________
Title:__________________________
---------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE A
TO MCIS/CALIBER PROGRAM DEVELOPMENT AGREEMENT
AVAILABLE COURSE SCHEDULE
-------------------------
THE FOLLOWING IS A LIST OF AVAILABLE DATES FOR COURSES AND DOES NOT CONSTITUTE A
COMMITMENT OR PROMISE TO ENGAGE IN SUCH TRAINING AT THE TIMES LISTED OR
OTHERWISE. NO COMMITMENT TO OBTAIN COURSES BY MCIS SHALL BE MADE EXCEPT IN
ACCORDANCE WITH DULY ISSUED COURSE PROCUREMENT NOTICES, WHICH COURSES MAY BE
CANCELLED OR RESCHEDULED IN ACCORDANCE WITH THE AGREEMENT.
PROFESSIONAL DEVELOPMENT COURSES
--------------------------------
April 7-8 Project Management 2 full days of training
April 29 Go to Market Strategy session 1 full day of training
and SHL Win
May 5-6 SHL Transform 1 full day of training
May 19-20 Protrack 2 full days of training
May 28 Behavioral Interviewing 1 full day of training
June 17-18 Project Management 2 full days of training
June 22 Orientation 1 full day of training
July 21-23 Successfully Managing People 2 full days of training
September 9 Orientation (Repeated from 6/22/98) 1 full day of training
September 23-24 EPM/Career Coaching 2 full days of training
November 18 Orientation (Repeated from 6/3/98) 1 full day of training
EXTERNAL SEMINARS
-----------------
May Seminar I 1 half day (4 hrs)
June Seminar II 1 half day (4 hrs)
September Seminar III 1 half day (4 hrs)
October Seminar IV 1 half day (4 hrs)
SCHEDULE B
TO MCIS/CALIBER PROGRAM DEVELOPMENT AGREEMENT
PROGRAM MANAGEMENT SERVICES
---------------------------
1. Development and implementation of a rolling three year strategic plan,
should the parties agree to extend the Term beyond the initial one year
period for current and future Alliance activities
2. Quarterly reporting to MCIS on mutually agreed upon performance metrics,
potentially to include some or all of the following: Level I Course
Evaluation, Level II Knowledge based testing, Level III Impact Level
Analysis (done 3-6 months after training activities), and Level IV Proof
Level Evaluation (performance improvement tied to specific strategic
business objectives)
3. Budget management and control processes
4. Provide limited support to MCIS in the development and definition of an
internal marketing plan, including product positioning and market execution,
for the Alliance's internal professional development activities
5. Provide limited support to MCIS in the development and definition of a
marketing plan, including product positioning, suggested pricing, and market
execution for the external seminar series
6. Provide limited support to MCIS in the development and creation of all
product marketing (print, web-based, and other medium as desired) to support
the Alliance's activities
7. Overall project management responsibilities to ensure the timely execution
of the strategic plan
DESCRIPTION OF SPECIAL OFFERINGS
The following is a description of the purpose and intent behind some of the
activities referenced in the Agreement.
1. Broadcast '98
-------------
This one-hour event ("Broadcast '98") is currently scheduled for March, 1998.
The purpose of the event is to communicate internally the new strategic
directions for MCIS. Xxxxx Xxxx and other key executives will present their key
initiatives to as many MCIS employees as possible. All sites that coincide with
MCIS employee locations will be used; the cost of ad hoc sites will be provided
to MCIS and billed separately.
2. Thought Leadership Seminar Series
---------------------------------
The Alliance may design and deliver a series of client-centered technology
forums/seminars that showcase MCIS's products and services. The first of these
programs may be held in May 1998. All intellectual property rights associated
with this deliverable shall vest in MCIS in accordance with section
12.1 of the Agreement. The purpose of the series is to provide a platform for
'MCIS Thought Leaders' to demonstrate their leadership on topics of interest to
CIOs and other key decision-makers among the broad audience of MCIS clients and
prospects. Other targeted audiences may include students on campus (as part of
regular recruiting initiatives) and MCIS's employees, as well as the clients and
employees of MCIS affiliates (including other MCI Communications Corporation
companies), WorldCom, Inc. clients and employees, and MCIS's strategic alliance
and joint venture partners.
SCHEDULE C
TO MCIS/CALIBER PROGRAM DEVELOPMENT AGREEMENT
NEW CAMPUS SPECIFICIATIONS
--------------------------
1. 4500 square feet.
2. 45 workstations
3. Comparable design and functionality to existing Caliber Campuses.
SCHEDULE D
TO MCIS/CALIBER PROGRAM DEVELOPMENT AGREEMENT
CALIBER CAMPUSES OPEN OR UNDER CONSTRUCTION
-------------------------------------------
NO. LOCATION
1 Atlanta
2 Raleigh
3 Xxxxxxxxx
0 Xxx Xxxx (Xxxxx St.)
5 Jacksonville
6 Philadelphia
7 Orlando
8 Nashville
9 Baltimore
10 Austin
11 Houston
12 Xxxxxxxxxx
00 Xxxxxxx
00 Xxxxxxxxxx, X.X.
15 New Orleans
16 Richmond
17 Detroit
18 San Diego
19 Milwaukee
20 Chicago
21 Salt Lake City
22 Dallas
23 Denver
24 Kansas City
25 Tampa
26 Oklahoma City
27 Sacramento
28 Portland
29 Cleveland
30 Minneapolis
31 Rochester
32 Boston
33 Seattle
34 Montreal
35 Vancouver
36 Toronto
37 New York
38 Xxxxxx City
39 Santa Xxx
40 Pittsburgh
41 San Francisco
00 Xxx Xxxx - Xxxx Xxxxxx
00 Xxx Xxxxxxx
00 Xxxx Xxxxxx
00 Xx. Xxxxx
46 Phoenix
47 San Xxxx
48 Miami
49 Indianapolis
50 Palo Alto - Cybersmith
51 Memphis
