EXHIBIT 10.07
*Certain information has been omitted in reliance on a confidential treatment
request.
CALIBER LEARNING NETWORK, INC.
NETWORK RENTAL AGREEMENT
THIS NETWORK RENTAL AGREEMENT (Agreement) is dated as of December 22, 1997 (the
Effective Date) and is 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 COMPAQ COMPUTER CORPORATION (User), a
Delaware corporation, with a place of business at 13401 North Freeway, Mail Stop
580203, Xxxxxxx, Xxxxx 00000.
RECITALS
1. Caliber is developing a network of nationwide facilities and a
communication infrastructure that enables it to provide educational,
training and other distance learning services.
2. User provides training seminars and other informational programs for its
employees and other interested persons who may be located in different
locations.
3. User wishes to use Caliber's facilities and communication services in order
to communicate simultaneously with individuals at various locations.
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 User agree as follows:
1.0 Term. This Agreement shall commence on the Effective Date set forth above
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and expire on the third (3/rd/) anniversary thereof (the Expiration Date).
Prior to or upon expiration, the parties may mutually agree to renew this
Agreement on the same or different terms.
2.0 Facilities and Services. Subject to the terms and conditions hereof,
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during the term of this Agreement, Caliber agrees to provide, and User
agrees to rent, on a non-exclusive basis as to either party, the facilities
and services listed in Appendix 1 hereof (Facilities and Services) for
programs to be offered at Caliber facilities by User (hereinafter
"Programs"), on the dates and at the times set forth in Appendix 1 (it
being understood that a separate Appendix 1 shall be completed for
Program). Compaq agrees to use its best efforts to offer a minimum of
twenty (20) Programs per year for the term of this Agreement, but in no
event shall offer less than fifteen Programs per year
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under this Agreement. The parties agree that in the event User fails to
offer a minimum of fifteen (15) Programs for any year under this Agreement,
because of User's reduced need to offer distance-based training and other
programs, User shall pay Caliber a fee equal to /*/ , to reimburse Caliber
for its lost opportunity as Caliber's sole and exclusive remedy. Compaq
retains the right to exit the Agreement at the end of Year Two based on new
technology availability not provided by Caliber, or based on a material
change in Compaq's use of distance learning solutions resulting in
reduction or cessation of the current satellite-delivered education and
training programs. For the purposes of this Agreement, Year One shall
commence with the Effective Date and conclude on the first anniversary
thereof, Year Two shall commence immediately thereafter and conclude on the
second anniversary of the Effective Date, and Year Three shall commence
immediately thereafter and shall conclude on the third anniversary of the
Effective Date.
User agrees to cooperate with Caliber and provide Caliber reasonable access
to User's information, staff and resources as necessary to provide the
Facilities and Services. User understands that Caliber may assign, reassign
and/or substitute its personnel at any time and may provide the same or
similar facilities and services to other clients.
3.0 Pricing: The parties agree that Program pricing shall be as follows:
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A. For calendar year 1997:
2-Hour Program Fee - /*/ per each additional room over forty-five (45)
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rooms. /*/ for each additional hour of on air broadcast time, plus /*/ .
5-Hour Program Fee - /*/ per each additional room over forty-five (45)
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rooms. /*/ for each additional hour of on air broadcast time, plus /*/ .
B. 1998-2000
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/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
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2-Hour Program Fee - /*/ per each additional room over fifty (50) rooms.
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/*/ for each additional hour of on air broadcast time, plus /*/ .
5-Hour Program Fee - /*/ per each additional room over fifty (50) rooms.
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/*/ for each additional hour of on air broadcast time, plus /*/ .
A discount may be made available for the above prices if Caliber
specifies, in its sole discretion, the date and time of day of the Program.
4.0 Pilot Programs. Caliber agrees to provide the Facilities and Services
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listed in Appendix 1 to User for two (2) Pilot Programs, each five hours in
length and delivered to a minimum of 7 classrooms. The parties shall
mutually agree on the dates and times of such Pilot Programs, within the
scope of Caliber's current network capabilities. The Pilot Program
broadcasts shall originate from a production provider selected by User.
Caliber and User agree to /*/ , provided, however, that in no event shall
/*/ (for both pilot programs, in the aggregate) without User's prior
written consent. There shall be /*/ for the use of Caliber's Facilities and
Services for the Pilot Programs.
5.0 Payment. Caliber will invoice User for the Facilities and Services as the
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same are provided, unless otherwise set forth in the applicable Appendix
for that program. User shall pay within thirty (30) days of invoice date.
Caliber, at its option, may impose a late payment charge equal (i) /*/
month, or (ii) to the maximum rate allowed by law, whichever is less. In
addition to the charges specified for the Facilities and Services for each
program, User shall pay (i) /*/ incurred by Caliber
__________________________
/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
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personnel; and (ii) Caliber's /*/ which are provided at User's written
request and any tax (other taxes based on income) imposed on Caliber as a
result of the Facilities and Services provided under this Agreement.
6.0 Caliber Operations. The parties understand and agree that Caliber is
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currently developing its network and delivery system, and that there may be
some operational delays, but the parties do not expect such delays to
extend beyond October 31, 1997. In the event Caliber software and systems
are not fully functional and operational, and Caliber is not able to
deliver, upon User's request, any of User's Program(s) to User's
satisfaction, between October 31, 1997 and December 31, 1997, then user may
terminate this Agreement without further liability to Caliber.
7.0 Intended Use. User understands and agrees that its use of Caliber's
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facilities, equipment and other property shall be solely for training,
instructional and/or other business-related purposes and User shall be
solely responsible for any damage to or destruction of any or all of
Caliber's facilities, equipment or other property to the extent caused by
User's (or any of User's attendees) use or misuse of the same.
8.0 Technical Support. Except as provided in the applicable Appendix 1 for
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each program, User will provide any and all technical or other support
services that may be necessary or required by User in its use of the
Facilities and Services.
9.0 Video Footage. For each Program, Caliber will retain all video footage,
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animation, camera and edited masters (collectively, "Property") until the
terms of this Agreement have been fulfilled with respect to each Program.
Notwithstanding the foregoing, the Property shall belong exclusively to
User; Caliber shall make no use of the Property without the prior written
consent of User.
Caliber and Compaq acknowledge that the Property is being created under the
direction and control of Compaq, and agree that the property shall be
deemed a work made for hire by an independent contractor under the United
States Copyright Law (17 U.S.C. 101) and, by virtue of this Agreement, is
the sole Property of Compaq free and clear from all claims of any nature
relating to Caliber's contributions and other efforts, including the right
to copyright the work in the name of Compaq as author and proprietor
thereof and any termination rights thereto. Caliber understands and agrees
that Compaq owns all right, title, and interest in the Property and has the
right to register all copyrights therein in its own name, as author, in the
United Sates of America and in all foreign countries.
The parties to this Agreement intend that Compaq shall have full ownership
of the Property with no rights of ownership in Caliber. Caliber agrees that
in the event this Agreement is determined by a court of competent
jurisdiction not to be a work made for hire under the federal copyright
laws, this
______________________
/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
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Agreement shall operate as an irrevocable assignment by Caliber to Compaq
of the copyright in the Property, including all rights thereunder in
perpetuity.
10.0 Confidentiality. User acknowledges that, during the term of this
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Agreement 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 ("Confidential Information") including, but not
limited to, customers or active prospects, strategic plans and materials,
marketing strategies, business data, financial information, distance
learning systems, and software. User acknowledges and agrees that such
Confidential Information shall remain the exclusive property of Caliber,
and that User 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. User agrees to only make such
Confidential Information available to employees on a need-to-know basis.
Caliber acknowledges that, during the term of this Agreement and in the
course of performing its obligations hereunder, it may be the recipient of
or become exposed to proprietary and confidential information of User
("Confidential Information") including, but not limited to, training or
educational materials, strategic plans and materials, marketing strategies,
business data, financial information, and software. Caliber acknowledges
and agrees that such Confidential Information shall remain the exclusive
property of User, 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.
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Caliber and User agree that money damages would not be a sufficient remedy
for any breach of this Section 10.0 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 User agree to be responsible for any breach of this Section 10.0 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 10.0.
11.0 Exclusion of Warranties. In the event of a general failure in Caliber's
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network configuration that prevents User from using the Facilities and
Services, Caliber shall compensate User by providing those Facilities and
Services, at no additional cost, on such date and at such time as mutually
agreed upon by the parties. Caliber's liability, if any, to User for
damages or losses arising out of or in any way related to Caliber's
performance or nonperformance of its obligations hereunder shall not exceed
the total amount paid by User to Caliber hereunder. Caliber makes no
warranty, express or implied, concerning the Facilities and Services. Both
parties shall have no liability to each other for any incidental,
consequential, special or indirect damages, including, without limitation,
any of lost profits.
12.0 Indemnification. User will indemnify and hold harmless Caliber and its
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parent companies and their respective officers and employees from and
against any and all loss, damage, injury, liability or suit incurred by or
asserted against Caliber to the extent caused by User's use of the
Facilities hereunder.
13.0 Assignment. Each party shall not assign or transfer its rights or
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obligations under this Agreement without the other party's prior written
consent. Any assignment or transfer without such consent shall be null and
void.
14.0 Force Majeure. Neither party will be liable to the other party hereunder
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or in default under this Agreement for failures of performance resulting
from acts or events beyond the reasonable control of such party, including,
by way of example and not limitation, acts of God, civil or military
authority, civil disturbance, war, strikes. In such event, Caliber and User
will use their best efforts to reschedule the date and/or time of User's
use of Caliber's Services and Facilities. If in the reasonable opinion of
the party not claiming force majeure such rescheduling is not practical,
that party may terminate this Agreement without further obligation to the
other party.
15.0 Notices. Any notices or other communications required or which may be given
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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.
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FOR USER:
Compaq Computer Corporation
Attn.:
Houston, Texas
(e-mail: )
FOR CALIBER:
Caliber Learning Network, Inc.
Attn.: Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(e-mail: Caliber@educate .com)
with a copy to: O. Xxxxxx Xxxxx
General Counsel
Fax: 410/000-0000
16.0 Entire Agreement. This Agreement supercedes that certain Letter of
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Agreement between the parties dated July 21, 1997 and constitutes the
entire agreement between the parties with respect to the subject matter
hereof and may only be changed or modified in a writing signed by both
parties. If any provision of this Agreement is held to be invalid, the
validity of the remainder of this Agreement shall not be affected.
17.0 Applicable Law. This Agreement shall be deemed to have been made in the
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State of Maryland 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 Maryland, without regard to conflict of laws principles.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CALIBER USER
CALIBER LEARNING NETWORK, INC. COMPAQ COMPUTER
COPRORATION
By:___________________________ By:_____________________________
Title:________________________ Title: _________________________
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APPENDIX 1
FACILITIES AND SERVICES
1. 1998-2000 Basic Package Pricing and Components
The basic package is as follows:
Price per 5 hour broadcast at up to 50 sites: /*/
Price per 2 hour broadcast at up to 50 sites: /*/
Price per additional Caliber site: /*/ per additional room over /*/
Price per additional hour of broadcast: /*/
Components of the Package:
. Training on the use of instruction design templates
. Conversion of content to Caliber format
. BOSS System
. Installation at the studio
. 1 instructor interface
. 1 technical coordinator interface
. 3 teaching assistant interfaces
. 1 server
. Video conferencing
. ISDN access router
. Hub
. UPS
. Audio/video equipment
. Program manager support during the rehearsal and the event
. Reserving training sites
. Staffing training sites
. Training site facilitators
. Import of roster data in standard format
. Caliber created web site
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/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
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. Standard reporting
. Facilitation of event
. Distribution of class materials
. Check-in students
. Support students during broadcast
. Returning materials to client
. Use of the Caliber application
. Testing
. Incorporating tests into student application
. Administering tests and return raw student data
2. Additional Services
The following services are not included in the basic package.
2.1 Additional Testing
. Caliber site facilitators proctoring the test Cost per site /*/
. Scoring of tests Cost *TBD
2.2 Studio and BOSS System
. Caliber provided technical coordinator
Cost - /*/
(includes expenses)
. Additional PictureTel units beyond two units currently provided
Cost - /*/
. Reconfiguring of the current BOSS system at Compac's request
Cost - *TBD based on request
. Additional build-out for Caliber production equipment or BOSS at
TPC studio
Cost - *TBD
. Cost incurred for Compaq requested change of studio location
Cost - *TBD
________________________
/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
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