AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
Registration No. 333-87683
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROMETRIC, INC.
(Exact name of registrant as specified in its charter)
1000 LANCASTER STREET
BALTIMORE, MD 21202
(410) 843-8000
(Address of principal executive offices)
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MARYLAND 8748 52-2195452
-------- ---- -----------
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer
incorporation or organization) classification code number) identification number)
</TABLE>
STEPHEN A. HOFFMAN
CHIEF EXECUTIVE OFFICER AND PRESIDENT
PROMETRIC, INC.
1000 LANCASTER STREET
BALTIMORE, MD 21202
(410) 843-8000
(Name, address, including zip code and telephone number, including area code of
agent for service)
COPIES TO:
Richard C. Tilghman, Jr. Walter G. Lohr, Jr.
Piper & Marbury L.L.P. Hogan & Hartson, L.L.P.
36 South Charles Street 111 South Calvert Street, Suite 1600
Baltimore, MD 21201 Baltimore, MD 21202
(410) 539-2530 (410) 659-2700
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective. If any of the
securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act") check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS PROPOSED MAXIMUM
OF SECURITIES TO AGGREGATE AMOUNT OF
BE REGISTERED OFFERING PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------
Shares of Common Stock,
par value $.001 $100,000,000 $27,800(2)
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act.
(2) Previously paid in connection with the initial filing of the Registration
Statement on Form S-1 on September 24, 1999.
<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The contents of Part I to the Registration Statement filed with the
Commission on September 24, 1999 are incorporated herein by reference.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses payable by us in
connection with the registration of the securities offered hereby. All of the
amounts shown are estimated except the SEC registration fee, the NASD filing fee
and the Nasdaq National Market listing fee.
SEC registration fee...................................................$27,008
NASD filing fee..........................................................10,500
Nasdaq National Market listing fee.......................................*
Transfer agent's and registrar's fees....................................*
Printing expenses........................................................*
Legal fees and expenses..................................................*
Accounting fees and expenses.............................................*
Miscellaneous expenses...................................................*
==
Total.............................................................$*
==
* To be completed by amendment.
14. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 2-418 of the Maryland General Corporation Law permits
indemnification of directors, officers, employees and agents of a corporation
under certain conditions and subject to limitations. Our bylaws include
provisions to require us to indemnify our directors and officers to the fullest
extent permitted by Section 2-418, including circumstances in which
indemnification is otherwise discretionary. Section 2-418 also empowers us to
purchase and maintain insurance that protects our officers, directors, employees
and agents against any liabilities incurred in connection with their service in
such positions.
At present, there is no pending litigation or proceeding involving any
of our directors or officers as to which indemnification is being sought nor are
we aware of any threatened litigation that may result in claims for
indemnification by any officer or director.
The form of Underwriting Agreement filed as Exhibit 1.1 to this
Registration Statement provides for indemnification of our directors and
officers by the Underwriters, for certain liabilities arising under the
Securities Act.
15. RECENT SALES OF UNREGISTERED SECURITIES
On _________, 1999, we issued ______ shares of our common stock to
Sylvan in exchange for all assets and liabilities of Sylvan's computer-based
testing services business. These securities were issued by us in reliance upon
the exemptions provided for in Section 4(2) of the Securities Act. The
certificates representing these shares contain a restrictive legend that
prohibits transfer without registration or an applicable exemption.
II-1
<PAGE>
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
EXHIBIT NO. DESCRIPTION
1.1 Form of Underwriting Agreement*
3.1 Charter of Registrant*
3.2 Bylaws of Registrant*
4.1 Specimen stock certificate for shares of Common Stock of
Registrant*
5.1 Opinion of Piper & Marbury L.L.P. **
10.1 Registrant's 1999 Stock Incentive Plan*
10.2 Form of Separation Agreement between Registrant and Sylvan
Learning Systems, Inc. **
10.3 Form of Administration Services Agreement between Registrant and
Sylvan Learning Systems, Inc. **
10.4 Form of Tax Sharing and Separation Agreement between Registrant
and Sylvan Learning Systems, Inc. **
10.5 Form of Registration Rights Agreement between Registrant and
Sylvan Learning Systems, Inc. **
10.6 Master Agreement for International Distribution between
Educational Testing Service and Sylvan Learning Systems, Inc.
dated as of April 1, 1994 *+
10.7 Master Agreement between Educational Testing Service and Sylvan
Learning Systems, Inc. dated as of December 12, 1997 *+
10.8 Exam Services Agreement between Microsoft Corporation and Sylvan
Learning Systems, Inc. dates as of July 1, 1999+
11.1 Statement of computation of earnings per share**
21.1 List of subsidiaries of Registrant**
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Piper & Marbury L.L.P. (included as part of Exhibit
5.1 hereto) **
24.1 Power of Attorney of Directors (included in signature pages)*
27 Financial Data Schedule*
99.1 Consent of Director Nominee - Berlanti*
99.2 Consent of Director Nominee - Samper*
99.3 Consent of Director Nominee - McGuire*
99.4 Consent of Director Nominee - Pollock*
99.5 Consent of Director Nominee - Inatome*
- -----------------------------
* Previously filed.
** To be filed by amendment.
+ Portions of these exhibits have been omitted based upon a request
for confidential treatment filed with the SEC.
II-2
<PAGE>
(B) FINANCIAL STATEMENT SCHEDULES:
Report of Independent Auditors on Financial Statement
Schedule Schedule II - Valuation and Qualifying Accounts
(contained in the "Financial Statements" section of the
prospectus)
17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the
underwriter at the closing specified in the Underwriting Agreement certificates
in such denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of its Charter or Bylaws or the Maryland
General Corporation Law or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, employee or agent of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, employee or agent in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act, the information omitted form the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Prometric, Inc. has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Baltimore,
State of Maryland, on September 27, 1999.
Prometric, Inc.
By: /s/ Stephen A. Hoffman
----------------------------------------
Stephen A. Hoffman
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed below by the
following persons in the capacities and on the date indicated.
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NAME TITLE DATE
/s/ Stephen A. Hoffman Chief Executive Officer, President and September 27, 1999
- -------------------------- Director (Principal Executive Officer)
Stephen A. Hoffman
/s/ Graham J. Taylor Chief Financial and Chief Accounting Officer September 27, 1999
- -------------------------- (Principal Financial Officer)
Graham J. Taylor
* Director September 27, 1999
- --------------------------
R. Christopher Hoehn-Saric
* Director September 27, 1999
- --------------------------
Douglas L. Becker
*By: Stephen A. Hoffman
- --------------------------
Attorney-in-fact
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II-4
<PAGE>
Exhibit Index
10.8 Exam Services Agreement between Microsoft Corporation and Sylvan
Learning Systems, Inc. dates as of July 1, 1999+
EXAM SERVICES AGREEMENT
- --------------------------------------------------------------------------------
THIS EXAM SERVICES AGREEMENT ("Agreement") is entered into and effective as of
July 1, 1999 (the "Effective Date"), by and between MICROSOFT CORPORATION
("Microsoft"), a Washington, corporation and SYLVAN LEARNING SYSTEMS, INC.
("Sylvan"), a Maryland corporation.
RECITALS
A. Microsoft develops and owns exams, which test end users' skill
levels in various areas through its Microsoft Certified Professional Program
("MCP") and Microsoft Sales Specialist Program ("MSS")(collectively, the
"Exams");
B. Sylvan provides remote registration for candidates to register for
exams, and enables candidates to take exams at test centers worldwide;
C. Sylvan wishes to offer Microsoft services for the registration,
appointment notification, fee collection, exam publication and delivery,
collection of candidate and exam details, fee remittance and monthly reporting;
and
D. Microsoft wishes to engage Sylvan to deliver tests provided by
Microsoft. In its role as a test delivery provider, Sylvan will deliver exams to
candidates around the world on its own behalf in Sylvan's own name, and not on
behalf of Microsoft, through Sylvan's network of secure testing centers and will
charge and collect candidates' exam fees equal to prices established by
Microsoft ("Exam Fees") plus any applicable taxes in accordance with Sections 4
and 15 of this Agreement (Exam Fees and applicable taxes collectively referred
to as "Candidate Fees"). Sylvan will remit to Microsoft the difference between
the Exam Fees and the Sylvan Retention (as defined in Section 4.2 herein) in
accordance with the Statement of Work attached hereto.
In consideration of the covenants and conditions set forth below, the adequacy
of which is agreed to and hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Sylvan Obligations.
1.1 Services. Sylvan agrees to provide the services described in the
Statement of Work attached hereto as Exhibit A ("Statement of Work") and
incorporated herein by reference, together with all costs and expenses, except
as otherwise provided for in this Agreement or the Statement of Work
("Services"). Sylvan shall deliver the Exams internationally in its own name and
on its own behalf, and shall be responsible for applicable taxes associated with
the Services described herein. The parties acknowledge that Sylvan is not acting
on Microsoft's behalf in this Agreement.
1.2 Financial Reports. In addition to the Services, Sylvan agrees to
provide to Microsoft's credit management department quarterly Financial
Statements within forty-five (45) days after the end of each calendar quarter.
Financial Statements should be forwarded to the attention of: Credit Manager,
Finance, Microsoft Corporation, * . "Financial Statement" is defined
as a Balance Sheet as of the last day of the calendar quarter, and an Income
Statement and Statement of Cash Flows for the quarter and year-to-date,
containing as much detail as is required in United States Securities and
Exchange Commission statements, and prepared in accordance with Generally
Accepted Accounting Principles ("GAAP"). Supplying Microsoft with copies of all
United States Securities and Exchange Commission filings by Sylvan shall satisfy
Sylvan's obligation to provide Financial Statements under this Section. Any
deviation from GAAP in the quarterly Statements shall be
*Portions of this exhibit have been omitted based upon a request for
confidential treatment.
<PAGE>
clearly noted. These Statements must be signed by an officer of Sylvan as being
representative of the books and accounts of Sylvan.
1.3 Financial Information. Within ten (10) days after Sylvan learns
that it has become or will become Insolvent (as defined elsewhere herein),
Sylvan shall submit financial statements to Microsoft in sufficient detail to
allow Microsoft to determine whether Sylvan shall be capable of continuing to
perform its obligations hereunder. The financial statements shall include, but
shall not be limited to, balance sheets and related statements of income and
retained earnings and statements of changes in financial condition. To the
extent those statements are audited, the audit report of the certified public
accountant performing the audit shall also be made available to Microsoft.
1.4 Year 2000 Compliance Certification. Sylvan certifies and agrees to
the following:
(a) Sylvan represents and warrants that the software,
hardware, and firmware used by it and all of its subcontractors, agents, and/or
third parties, in relation to each such party's performance of the Services, (i)
will accurately distinguish date/time data from, into, and between the twentieth
and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations, and (ii) will not cease its normal operations, malfunction or
provide invalid or incorrect results as a result of date data ("Year 2000
Compliant"), by October 31, 1999.
(b) Sylvan agrees to indemnify, defend, and hold Microsoft
and its successors, officers, directors, and employees harmless from any and all
actions, causes of action, claims, demands, costs, liabilities, expenses and
damages in connection with any claim relating to Sylvan's warranties under
Section (a) above.
(c) Microsoft may terminate its agreement(s) with Sylvan upon
sixty (60) days' notice if Sylvan is not able to perform the Services as a
result of not being Year 2000 Compliant for whatever reason. If Sylvan is able
to cure such non-compliance within the 60-day notice period, the agreement(s)
shall not terminate.
(d) Sylvan shall provide a quarterly report summarizing its
progress in implementing its Year 2000 Compliance Plan. Sylvan shall also
provide confirmation by its third party Year 2000 consultants that Sylvan has
completed its Year 2000 Compliance Plan and is Year 2000 compliant no later than
October 31, 1999.
1.5 Reports. Sylvan shall timely provide Microsoft with the reports
specified in the Statement of Work, the general financial reports identified in
this Section 1 herein and in the Statement of Work (each a "Report"), and all
other information requested from time to time with respect to all Services
performed. All Reports shall be complete and accurate. Each Report, whether in
electronic or paper format, shall meet the standard Report Requirements
identified for the Report on the Statement of Work and shall be delivered within
the time as specified in the Statement of Work. Sylvan shall use its best effort
to correct any errors in a Report within three (3) business days following
Microsofts notice specifying the item in respect of which an error is reported
to have occurred. Sylvan shall deliver each Report, and all supporting
documentation therefor, by the time and on the Business Day specified in the
Statement of Work. A "Business Day" means each day on which Sylvan and Microsoft
is open for business.
1.6 Right to Remove or Replace. Both parties acknowledge that Candidate
satisfaction is of paramount importance to successful implementation of the MCP
and MSS programs. In the event Microsoft receives specific complaints of a
serious nature about any of Sylvan's employees or subcontractors, from
Candidates or testing centers, Microsoft shall communicate the complaint to
Sylvan. Sylvan and Microsoft shall make a good faith effort to resolve the
complaint within seven (7) days. If unresolved after seven (7) days, Sylvan
shall remove the employee or subcontractor from performance of any of the
Services for Microsoft herein. The automatic removal provisions of this Section
1.6 shall not
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05/12/99 Microsoft Confidential 2
<PAGE>
apply to those employees Sylvan appoints as primary business contacts with
Microsoft, but Sylvan and Microsoft shall attempt to resolve the complaint as
described herein.
1.7 Testing Center Agreements. Sylvan shall recruit testing centers on
its own behalf at its own discretion. Sylvan shall enter into agreements with
each testing center which will require each testing center to protect
Microsoft's confidential information and trademark usage in a manner equal to or
greater than that provided in this Agreement. Sylvan shall not require, as a
condition to becoming a testing center or at any other time, that a prospective
or existing testing center deliver exams exclusively in connection with Sylvan.
Microsoft reserves the right to review each type/form of testing center
agreement for compliance with this Section 1.7.
2. Limited License Grant - Microsoft.
2.1 Exams. Microsoft retains all right, title, and interest in and to
the Exams subject to the limited license grant in this Section 2.
2.2 License to Sylvan. Microsoft hereby grants to Sylvan, during the
term of this Agreement, a nonexclusive, worldwide right and license to:
(a) Use the Exams solely to perform the Services for
Microsoft. Sylvan shall at no time allow such license to be shared, transferred
or used by any third party contrary to the provision of the Services; and
(b) Sylvan will not (i) disassemble, decompile or reverse
engineer Exams or (ii) make copies of the Exams, in whole or in part, except for
a single backup copy.
3. Limited License Grant - Sylvan.
3.1 Sylvan-Owned Material/Sylvan Deliver System. Sylvan represents to
Microsoft that the testing, scheduling and registration systems and software
included in Sylvan's Delivery System (the worldwide network of Sylvan testing
locations where Microsoft's computer-based exams are or can be delivered to an
examinee and the data communication, registration, scheduling and testing
systems and software that are proprietary to Sylvan or licensed to Sylvan on a
non-restricted basis, excluding any Microsoft software) is the property of
Sylvan or its suppliers and are proprietary to them. No title to or ownership of
Sylvan materials or the Sylvan Delivery System provided to Microsoft and/or
otherwise used by either party in conjunction with this Agreement ("Sylvan-Owned
Materials") is transferred to Microsoft. Any changes or modifications to the
Sylvan Delivery System are the property of Sylvan and Sylvan shall own all
rights, title and interest, including copyright, in such changes and
modifications. The Sylvan technology and Sylvan intellectual property, including
but not limited to Sylvan-Owned Materials, used in the production and
distribution of the Exams is the sole property of Sylvan and is protected by
law. Any unauthorized use or transfer without Sylvan's written consent is
prohibited.
3.2 Sylvan represents that it is the owner of or has properly licensed
the Sylvan-Owned Materials and all portion thereof and that it has the right to
modify same and grant Microsoft a license for its use. All applicable rights to
patents, copyrights, trademarks, and trade secrets in the Sylvan-Owned
Materials, and in any modifications thereto, are and shall remain in Sylvan.
Microsoft shall not sell, transfer, disclose, display, license or otherwise make
available to any party the Sylvan-Owned Materials, including translations,
compilations, partial copies, modifications and updated versions, except that
Microsoft may provide to third parties exam files that may include Sylvan-Owned
Materials so long as Microsoft conveys no license to use nor any other rights to
such Sylvan-Owned Materials, and such materials include the copyright or other
statement placed on such exam files or Sylvan-Owned Materials by Sylvan.
Microsoft further acknowledges and agrees (i) that any other use of Sylvan-Owned
Materials by Microsoft is strictly prohibited unless such other use is
authorized in writing by Sylvan, (ii) any copyright or other statement placed on
such exam files or Sylvan-Owned Materials shall not be altered or removed by
- --------------------------------------------------------------------------------
05/12/99 Microsoft Confidential 3
<PAGE>
Microsoft and shall accompany the same if provided to a third party, and (iii)
any third party receiving Sylvan-Owned Materials or Sylvan-Owned Materials
contained in exam files does not obtain any rights in such Sylvan-Owned
Materials.
3.3 License. Subject to the terms of this Agreement, Sylvan grants
Microsoft for the term of this Agreement, and Microsoft accepts from Sylvan, a
non-exclusive, non-transferable, worldwide, paid-up and royalty-free license
(a) to use, reproduce and distribute internally the Sylvan-Owned Materials for
the limited purpose of developing, publishing and administering Microsoft exams.
This license also includes the right to provide to third parties the exam files
that may include Sylvan-Owned Materials so long as Microsoft conveys no license
to use nor any other rights to such Sylvan-Owned Materials.
3.4 Except as provided herein, this license, the Sylvan-Owned
Materials, and the Sylvan technology and intellectual property used in the
production and distribution of Exams may not be assigned or transferred without
the prior written consent of Sylvan and without an approved assignee o
transferee entering into a licensing agreement to be provided by Sylvan.
Microsoft shall not disclose the Sylvan-Owned Materials or Sylvan technology and
intellectual property used in the production and distribution of Microsoft Exams
to any third party except as provided herein, and shall not decompile, reverse
engineer, disassemble or in any way attempt to create source code from
Sylvan-Owned Materials.
4. Candidate Fee Collection and Distribution.
4.1 Candidate Fees. Sylvan shall charge and collect the Candidate Fees
and vouchers from candidates pursuant to the provisions of the Statement of
Work.
4.2 Sylvan Retention. Microsoft agrees that Sylvan may retain a fee per
exam delivered or scheduled worldwide ("Sylvan Retention"), in accordance with
the Statement of Work attached hereto. Except as otherwise provided in this
Agreement or in the Statement of Work, Sylvan shall bear sole responsibility for
the costs associated with the Services. The balance of all Exam Fees, less the
applicable Sylvan Retention, shall be remitted by Sylvan to Microsoft pursuant
to the terms of the Statement of Work.
4.3 Credit Card Cost and Additional Services Invoicing and Payment.
Sylvan will provide Microsoft with the financial reporting and remittance of
the Exam Fees and other revenues minus Sylvan Retention pursuant to the
provisions of the Statement of Work. For credit card costs and additional
services pursuant to the Statement of Work, Sylvan will provide Microsoft with a
monthly summary invoice stating all amounts due from Microsoft to Sylvan under
this Agreement. Such monthly invoice shall include the monthly total, by
purchase order line, for items included on each line of such purchase orders and
shall be submitted by Sylvan to Microsoft's Accounts Payable department in hard
copy (paper) format. In addition, Sylvan shall provide to Microsoft on a 3.5"
floppy disk in Microsoft Excel Version 7.0 format, a monthly detailed listing of
items contained within each purchase order line, with a sub-total for each item
and an invoice total. The foregoing invoice reporting shall contain sufficient
detail to allow Microsoft to determine the accuracy of the amounts billed. All
invoices shall be expressed and paid in U.S. dollars. All payments shall be made
via ACH electronic payment to Sylvan's financial institution as supplied to
Microsoft via Microsoft's ACH electronic payment forms. Except for Disputed
Amounts, payment shall be made by Microsoft to Sylvan on a net thirty (30) day
basis after receipt of accurate and complete invoices for Services by Microsoft:
Microsoft Corporation
Microsoft Financial
Operations Accountant
One Microsoft Way
Redmond, WA 98052-6399
4.4 Disputed Amounts. As used herein, "Disputed Amounts" means amounts
that are subject to a bona fide dispute raised by Microsoft, orally or in
writing, within thirty (30) days of Microsoft's receipt of the invoice. All
Disputed Amounts that Microsoft subsequently agrees in writing to pay
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05/12/99 Microsoft Confidential 4
<PAGE>
("Agreed Payment") or that are required to be paid pursuant to a proper court
order or award from any mutually submitted arbitration ("Required Payment")
shall be paid within thirty (30) days from the date of such agreement or
determination. Payment of an invoice without asserting a dispute is not a waiver
as to any claim or occurrence provided that such assertion is made within twelve
(12) months of payment, unless disclosed by audit pursuant to Section 14.
5. Sylvan Web Resource.
5.1 Development. In accordance with a development schedule, data
retrieval specifications, and other specifications to be mutually agreed upon by
the parties, Sylvan shall develop or maintain a web resource to enable Sylvan to
perform the Services ("Sylvan Web Site") at its own expense, subject to
Microsoft's reasonable review and approval, which shall include, without
limitation, the following elements: (i) accuracy of language and graphical
descriptions of Microsoft exams, certification requirements, and exam
eligibility, (ii) editorial material, (iii) advertisements, and (iv) any
material relating to any Microsoft competitors.
6. Remedies for Sylvan's Failure to Provide Services and Reports.
6.1 If Sylvan does not perform the Services in accordance with this
Agreement, Microsoft shall have the following remedies available for
global/world-wide or regional failure(s) to perform. For purposes of this
section a "Region" shall be defined as one of the following: South Pacific and
Americas ("SPAR"), Europe, Middle East and Africa ("EMEA") and/or Eastern.
Regions may be modified, added or deleted at Microsoft's sole discretion;
provided that no modification of regions shall affect the calculation of
penalties already in existence at the time the region(s) are modified and
further provided that any addition, deletion or modification of a region shall
not be effective for the purposes of levying penalties for a period of sixty
(60) days after Sylvan receives notice of the addition, deletion or modification
unless Sylvan has received prior notice and has waived such sixty (60) day
period in advance. If a performance failure materially impacts Microsoft testing
in all three (3) Regions, the such failure may be considered Global.
6.2 For each initial failure to perform, Microsoft shall provide Sylvan
with notice of Sylvan's failure to perform. Sylvan shall provide a written plan
to Microsoft, describing the cause of Sylvan's failure to perform, and a
timetable and strategy for Sylvan's compliance by the later of (i) the first day
of the next calendar month or (ii) fifteen days from the date of the notice of
failure to perform.
6.3 Sylvan shall comply with such plan and shall achieve compliance
within the time set forth in the approved plan.
6.4 If Sylvan (i) fails to perform within the time period prescribed in
Section 6.2, (ii) subsequently fails to perform in a manner similar to the
failure described in the notice under Section 6.2, (iii) fails to meet or exceed
the Key Performance Indicators (as defined in the Statement of Work) ("KPI")
after having been notified by Microsoft in accordance with Section 6.2, or (iv)
fails to timely provide complete reporting as required in the Statement of Work
after having been notified by Microsoft in accordance with Section 6.2,
Microsoft may disallow (a) up to seven and one-half percent (7.5%) of Sylvan
Retention from a particular Region for failure(s) in that Region, or (b) up to
five percent (5%) of Sylvan Retention for performance failures having a Global
impact, beginning in any of the first three months after thirty (30) days'
written notice from Microsoft to Sylvan describing the failure and that this
remedy is to be applied for each month that Sylvan continues to fail to meet the
performance described in Microsoft's notice herein, until Sylvan meets or
exceeds the required performance.
6.5 Any remedies under this Section 6 shall be in addition to all other
remedies available under this Agreement.
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05/12/99 Microsoft Confidential 5
<PAGE>
6.6 All notices required to be given under this Section 6 may be given
by electronic mail, in addition to the manner specified in Section 15.3.
7. Intellectual Property Rights.
7.1. Ownership of Work. All materials developed by Sylvan pursuant to
this Agreement shall be owned by Sylvan or its suppliers. Notwithstanding the
foregoing, Microsoft and its suppliers retain all right, title and interest in
and to the exams and all other material provided by Microsoft to Sylvan to
enable it to perform the Services ("Exams"). The Sylvan technology and Sylvan
intellectual property used in the production and distribution of the examination
shall remain the sole property of Sylvan.
7.2 Microsoft Trademarks. Sylvan may refer to themselves as a
"Microsoft Certified Professional Exam Provider" in text, and use the "Microsoft
Certified Professional Exam Provider" and "Microsoft" logos (the "Logos")
according to the Microsoft guidelines attached hereto as Exhibit D or as may be
provided by Microsoft from time to time. Sylvan shall correct any specified
misuses of Microsoft's trademarks or the Logos. This Agreement does not grant
Sylvan any right, title, interest, or license in or to any of Microsoft's names,
word marks, logos, logotypes, trade dress, designs, or other trademarks. Nothing
herein shall restrict Microsoft's legal or equitable rights to protect its
trademarks against infringement, dilution or other misuse.
7.3 Sylvan shall indemnify, defend and hold Microsoft harmless from any
and all claims arising from, or related to, any failure of Sylvan to comply with
this Section 7.
8. Confidentiality.
8.1 The parties each expressly undertake to retain in confidence all
Confidential Information disclosed by one party to the other hereunder pursuant
to the terms and conditions set forth in that certain Non-Disclosure Agreement
dated April 8, 1998 (the "NDA"), a copy of which is attached hereto as Exhibit E
and incorporated herein by reference. Without limitation, the specific terms of
this Agreement shall be deemed to be Confidential Information pursuant to the
NDA.
8.2 The parties' obligations of confidentiality under this Agreement
shall not be construed to limit either party's right to independently develop or
acquire products without use of the other party's Confidential Information.
Further, either party shall be free to use for any purpose the residuals
resulting from access to or work with such Confidential Information, provided
that such party shall maintain the confidentiality of the Confidential
Information as provided herein. The term "residuals" means information in
non-tangible form, which may be retained by persons who have had access to the
Confidential Information, including ideas, concepts, know-how or techniques
contained therein. Neither party shall have any obligation to limit or restrict
the assignment of such persons or to pay royalties for any work resulting from
the use of residuals. However, the foregoing shall not be deemed to grant to
either party a license under the other party's copyrights or patents.
9. Warranties.
9.1 Mutual Warranties. Each party hereby represents and warrants as
follows:
(a) Corporate Power. Such party is duly organized and validly
existing under the laws of the state of its incorporation and has full corporate
power and authority to enter into this Agreement and to carry out the provisions
hereof.
(b) Due Authorization. Such party is duly authorized to
execute and deliver this Agreement and to perform its obligations hereunder.
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(c) Binding Agreement. This Agreement is a legal and valid
obligation binding upon it and enforceable with its terms. The execution,
delivery and performance of this Agreement by such party does not conflict with
any agreement, instrument or understanding, oral or written, to which it is a
party or by which it may be bound, nor violate any law or regulation of any
court, governmental body or administrative or other agency having jurisdiction
over it.
9.2 Sylvan Warranties. Sylvan represents and warrants the following to
Microsoft:
(a) The Services provided to Microsoft under this Agreement
do not infringe any copyright, trade secret, trademark, or other proprietary
right held by any third party;
(b) The Services shall be performed in compliance with all
applicable laws and regulations of any relevant jurisdiction;
(c) The Services shall be performed by Sylvan in a
professional manner and shall be of a high grade, nature, and quality, and in
conformity with the description set forth in the Statement of Work;
(d) Sylvan agrees to fully comply with the Insurance and Risk
Allocation provisions of Section 13; and
(e) Sylvan's employees and agents shall at all times, while
on Microsoft property or while performing the Services, comply with all
applicable, local, state and federal laws, including specifically all laws
prohibiting harassment of any kind in the workplace. Sylvan assumes all
responsibility for providing to its employees, agents and subcontractors any
training that may be required to insure compliance with such laws.
9.3 Microsoft Warranties.
(a) Microsoft warrants that it has all rights necessary to
meet its obligations under this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY
WARRANTIES WITH RESPECT TO ITS PRODUCTS, SERVICES OR PERFORMANCE HEREUNDER,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY,
FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS) INCURRED BY THAT PARTY AS A RESULT OF ANY
BREACH OF THIS AGREEMENT.
THIS SECTION SHALL HAVE NO EFFECT UPON, AND SHALL NOT LIMIT LIABILITY
FOR ANY CLAIMS, LOSSES OR DAMAGES FOR BREACH OF SECTIONS 8 AND 9.2(a).
11. Indemnity.
11.1 Indemnity by Sylvan. Sylvan agrees to indemnify and hold Microsoft
and its successors, officers, directors and employees harmless from any and all
actions, causes of action, claims, demands, costs, liabilities, expenses and
damages (including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection therewith or with successfully establishing the right to
indemnification hereunder, which arises out of:
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(a) Any claim that if true would constitute a breach of
Sylvan's warranties set forth in Section 9 above or default by Sylvan in the
performance of any obligation to be fulfilled by Sylvan under this Agreement; or
(b) Any claim related to the Services, except as such claim
relates to that Value Added Tax ("VAT"), if any, imposed on transactions (as
opposed to services deemed to have been performed by Sylvan for Microsoft)
between Sylvan and Microsoft that are deemed by a foreign, federal, state,
provincial, municipal, local or other competent taxing authority to be the
responsibility of Microsoft and which VAT the parties, after reasonable effort,
had resolved did not apply or no such joint resolution was possible..
Provided, however, that this indemnity expressly excludes any claim set
forth in this Section 11.1 above or any loss, cost, damage or expense, to the
comparative extent arising out of the negligent or willful acts or omissions of
Microsoft, its employees, agents, representatives or any person or entity under
the direction or control of Microsoft.
11.2 Indemnitv by Microsoft. Microsoft agrees to indemnify and hold
Sylvan, and its successors, officers, directors and employees harmless from any
and all third party actions, causes of action, claims, demands, costs,
liabilities, expenses and damages (including without limitation attorneys' fees)
to the extent arising out of or in connection with
(a) Any claim that if true would constitute a breach of
Microsoft's warranties set forth in Section 9 above; or
(b) Any claim related solely to the content of the exams in
the form made available or delivered by Microsoft to Sylvan.
Provided, however, that this indemnity expressly excludes any claim set
forth in this Section 11.2 above or any loss, cost, damage or expense, to the
extent arising out of the negligent or willful acts or omissions of Sylvan, its
employees, agents, representatives or any person or entity under the direction
or control of Sylvan. For purposes of this Section 11.2, the parties agree that
all Testing Centers shall be deemed to be under Sylvan's direction and control.
11.3 Notice of Claim. If any action shall be brought against a party
(the "Indemnified Party") in respect to which indemnity may be sought pursuant
to the provisions of this Section 11, the Indemnified Party shall promptly
notify the other party (the "Indemnifying Party") in writing, specifying the
nature of the action and the total monetary amount sought or other such relief
as is sought therein. The Indemnifying Party may, at its option, assume the
defense of the action, in which event the Indemnified Party will cooperate fully
in such defense and may participate in such defense with counsel of its own
choice, provided that the Indemnified Party will be responsible for all expenses
relating to such separate counsel. If the Indemnifying Party assumes the defense
of the action, its obligation will be limited to paying the attorneys' fees,
costs and expenses associated with such defense (except as otherwise expressly
provided herein) and holding harmless the Indemnified Party from and against any
judgment paid on account of such action or monetary settlement the Indemnifying
Party has made (with the Indemnified Party's approval, not to be unreasonably
withheld) or approved. No settlement may be made by the Indemnified Party
without the Indemnifying Party's prior approval. No settlement may be made by
the Indemnifying Party without the Indemnified Party's prior approval.
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11.4 Survival. Both parties agree that the indemnities set forth in
this Section 11 shall survive and shall be enforceable beyond the termination
or completion of this Agreement.
SYLVAN AND MICROSOFT EXPRESSLY AGREE THAT THIS ARTICLE ENTITLED INDEMNIFICATION
HAS BEEN READ AND REVIEWED AND HAS BEEN THE SUBJECT OF NEGOTIATION BETWEEN THE
PARTIES, AND THAT BOTH PARTIES AGREE TO BE BOUND BY THE TERMS THEREOF.
12. Insurance.
12.1 Coverage. Prior to the commencement of this Agreement and
throughout the entire term thereof, Sylvan shall maintain the following
insurance. Such insurance shall be in a form and with insurers reasonably
acceptable to Microsoft, and shall comply with the following minimum
requirements:
(a) Comprehensive General Liability- Sylvan shall obtain and
maintain a policy of "general", "public", or "commercial" liability insurance
with policy limits of not less than $1,000,000 each occurrence for bodily injury
and $1,000,000 each occurrence for damage to property, or, alternatively,
$1,000,000 combined single limit each occurrence for bodily injury and property
damage combined. The policy shall be the "occurrence" form, including coverage
for premises and operations, contractual liability (including specifically
liability assumed herein), broad form property damage, and products and
completed operations. Sylvan shall name Microsoft its subsidiaries, and their
respective directors, officers and employees as additional insureds under such
policy to the extent of contractual liability assumed by Sylvan under this
Agreement. The coverage afforded to the additional insureds shall be primary and
non-contributory to insurance maintained by Microsoft, and shall contain a
severability of interests provision in favor of the additional insureds.
(b) Automobile Liability - If licensed vehicles will be used
in connection with the performance of the work hereunder, and at all times when
such vehicles are operated on the premises of Microsoft, Sylvan shall maintain
automobile liability insurance covering all owned, rented, and non-owned
vehicles operated by Sylvan with policy limits of not less than $1,000,000
combined single limit for bodily injury and property damage combined, or, if
limits are obtained on a per person and per accident basis, not less than
$1,000,000 per person and per accident for bodily injury, and $500,000 per
accident for property damage.
(c) Workers' Compensation - Sylvan shall at all times and to
the fullest extent comply with all applicable workers' compensation,
occupational disease, and occupational health and safety laws, statutes, and
regulations. Compliance and coverage shall extend to all employees of Sylvan
suffering bodily injury (including death) by accident or disease, which arises
out of or in connection with the performance of this Agreement. Satisfaction of
these requirements shall include, but shall not be limited to:
(i) full participation in any required governmental
occupational injury and/or disease insurance program, to the extent
participation in such program is mandatory in any jurisdiction, and
(ii) purchase of workers' compensation and occupational
disease insurance providing benefits to employees in full compliance with all
applicable laws, statutes, and regulations (but only to the extent such coverage
is not provided under a mandatory government program as in (a) above), and/or
(iii) maintenance of a legally permitted and government-
ally approved program of self insurance for workers' compensation and
occupational disease.
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If Sylvan fails to effect and maintain a program of compliance with
applicable workers' compensation and occupational disease laws, statutes, and
regulations, and Microsoft incurs fines or is required by law to provide
benefits or to obtain coverage for such employees, Sylvan shall indemnify
Microsoft for such fines, payment of benefits to employees or Sylvan or their
heirs or legal representatives, and/or the cost of effecting coverage on behalf
of such employees. Any amount owed to Microsoft by Sylvan pursuant to this
indemnity may be deducted from any payments owed by Microsoft to Sylvan for
performance of this Agreement.
(d) Employer's Liability - Sylvan, in addition to complying
with the provisions of section (iii) above, shall maintain coverage for
employer's liability with a policy limit of not less than $1,000,000 per
accident. In states where commercial insurance of workers' compensation is not
permitted, this requirement may be fulfilled through addition of the "Employers
Stop Gap Liability" endorsement to the comprehensive general liability policy
required in (a) above.
(e) Professional Liability And Errors & Omissions Liability
Insurance. Policy limits of not less than One Million Dollars ($1,000,000.00)
each claim with a deductible of not more than $25,000.00. Such insurance shall
include coverage for infringement of proprietary rights of any third party,
including without limitation copyright, trade secret and trademark infringement
as related to Sylvan's performance under this Agreement. Throughout the term of
this Agreement, the Professional Liability And Errors & Omissions Liability
Insurance retroactive coverage date will be no later than the Effective Date of
this Agreement. Upon expiration or termination of this Agreement, Sylvan will
either (i) continue to maintain such coverage for a period of at least one (1)
year following termination of this Agreement; (ii) maintain for at least one (1)
year full replacement coverage that also complies with the requirements of this
Section 12.1(e); or (iii) maintain an extended reporting period ending not
less than one (1) year following termination of this Agreement ("Extended
Reporting Period"), and providing that claims first made and reported to the
insurance provider within said Extended Reporting Period will deemed to have
been made during the policy period.
12.2 General Requirements Applicable to All Above Coverages.
(a) All deductibles and premiums associated with the above
coverages shall be the responsibility of Sylvan.
(b) If in the opinion of Microsoft the amount of liability
coverage is not adequate by reason of inflationary pressures or experience or
the nature and content of Sylvan's activities, Sylvan shall increase the amount
of insurance coverage as reasonably required by Microsoft.
(c) The use of umbrella or excess liability insurance to
achieve the above required liability limits shall be permitted by Microsoft,
provided that such umbrella or excess insurance results in the same type and
amounts of coverage as required under the required individual policies
identified above. Microsoft retains the sole right to determine whether such
umbrella or excess insurance, in combination with underlying policies, satisfies
the insurance requirements set forth herein.
(d) It is the intent of the parties that the above insurance
requirements will assure adequate resources for victim compensation and will
serve to minimize Microsoft's involvement and liability arising out of
performance of this Agreement by Sylvan. Where any subcontractor is retained by
Sylvan in the performance of this Agreement, Sylvan shall either require such
subcontractor to assume the same insurance obligations on behalf of Microsoft as
are required of Sylvan herein, or extend its insurance to cover any
subcontractor retained by Sylvan.
12.3 Certificates of Insurance. Prior to the commencement of this
Agreement, Sylvan (and any subcontractor thereof where Sylvan is not assuming
its insurance obligations) shall provide to Microsoft certificates of insurance
evidencing full compliance with the insurance requirements contained herein.
Such certificates shall be kept current throughout the entire term of this
Agreement, and shall
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provide for at least thirty (30) days' advance notice to Microsoft if the
coverage is to be canceled or materially altered so as not to comply with the
foregoing requirements.
Where such insurance is to waive rights of subrogation or include
Microsoft as an additional insured the certificate shall expressly reflect in
writing the insurers' acceptance of such requirements.
Failure by Sylvan to furnish certificates of insurance or failure by
Microsoft to request same shall not constitute a waiver by Microsoft of the
insurance requirements set forth herein. In the event of liability or expense
incurred by Microsoft as a result of such failure by Sylvan, Sylvan hereby
agrees to indemnify Microsoft for all liability and expense (including
reasonable attorney's fees and expenses associated with establishing the right
to indemnity) incurred by Microsoft as a result of such failure by Sylvan.
13. Term and Termination.
13.1 Term. This Agreement shall commence as of the Effective Date. The
Agreement shall terminate upon the earlier of (i) June 30, 2001, (ii) June 30,
2000, in the event that either party provides written notice to the other party
of its intent to terminate at least ninety (90) days prior to June 30, 2000, or
(iii) as terminated under this Section 13. Termination of this Agreement will
not affect (i) fees and remittance for Services furnished prior to termination
or as mutually agreed after termination; or (ii) Microsoft's and Sylvan's
compliance with the terms and conditions of this Agreement in connection with
Services actually furnished. On or before April 1, 2000, or upon any earlier
termination notice, Microsoft shall notify Sylvan of its intent to negotiate a
further agreement between Sylvan and Microsoft for exam delivery services.
13.2 Default. This Agreement shall terminate automatically upon a
Default under Section 13.2(a)(2) below. Microsoft may terminate this Agreement
upon a Default under Section 13.2(a)(1), if the default has not been cured
within five (5) days after Microsoft provides notice to Sylvan describing the
Default(s) in reasonable detail.
(a) Each of the following is a Default or event of default:
(i) The acquisition of a substantial part or all of
Sylvan's assets by or its merger with another company;
(ii) The occurrence of any of the following (each an
"Insolvency Event of Default"): (A) any party admits in writing its inability to
pay its debts generally or makes a general assignment for the benefit of its
creditors; (B) a proceeding is instituted, voluntarily or otherwise, by or
against any party seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of it or its debt, which
is not dismissed within thirty (30) days; (C) any affirmative act of insolvency
by any party or the filing by or against any party of any petition or action
under any bankruptcy, reorganization, insolvency arrangement, liquidation,
dissolution or moratorium law, or any other law or laws for the relief of, or
relating to, debtors; (D) a proceeding is initiated against any party seeking to
appoint a receiver, trustee or other similar official for it or for any
substantial part of its property; (E) a party ceases to pay its debts as they
become due; (F) ANY PARTY BECOMES INSOLVENT, as defined elsewhere herein; or (G)
the subjection of a material part of any party's property to any levy, seizure,
assignment or sale for or by any creditor, third party or governmental agency.
(b) Effect of Termination.
(i) Payment. Notwithstanding termination of this
Agreement, Sylvan shall remit to Microsoft all Exam Fees (less the Sylvan
Retention) earned prior to termination and each party shall return any
Confidential Information of the other party within ten (10) days from the date
OF SUCH termination. In addition, Sylvan shall return all data, solely as it is
derived from Microsoft facilities and
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Services performed under this Agreement, to Microsoft within ten (10) days from
the date of such termination in a standard computerized management maintenance
system format.
(ii) Transition Services. In circumstances as expressly
provided by this Agreement, or in the event of termination, expiration, or
Microsoft's decision to cease delivery of one or more of Microsoft's exams by
Sylvan under this Agreement or under any particular Accepted Project or any
Services provided under this Agreement (any or all of the foregoing referred to
as a "COS"), in each instance without regard to cause or reasons for such COS,
including expiration or termination of this Agreement, but expressly provided
that Microsoft is not in breach or default of any of its confidentiality
obligations hereunder and with written notice received by Sylvan at least thirty
(30) calendar days prior to the expiration or termination of this Agreement, or
other notice provided in this Agreement Sylvan and Microsoft agree to have an
orderly transfer of customer service responsibilities either to Microsoft or to
another service provider as it may designate over a period not to exceed thirty
(30) calendar days following other applicable notice periods and at charges
equal to 100% of the charges then applicable hereunder. In particular, but
subject to the foregoing, Sylvan agrees that:
(A) The customer database and records of customer
transactions (including applications, orders and record of fulfillment) and
other pertinent customer or exam records, including electronic records, but
excluding Sylvan works, in Sylvan's possession or reasonable control and
necessary to answer Microsoft customer inquiries and to provide services
previously provided by the Sylvan, shall be transferred expeditiously and
without charge, except out-of-pocket costs and for any programming required, to
Microsoft or its new designated service provider;
(B) Promptly after it is apparent to either party that
there will be a COS, the parties shall meet to schedule and organize the shift
of customer service responsibilities in order that it shall be seamless to
Microsoft customers and occur without undue expense or inconvenience to either
party; Microsoft shall pay Sylvan for services provided by Sylvan. In the event
Microsoft decides to cease delivery of one or more of Microsoft's exams by
Sylvan under this Agreement (and where no termination or expiration shall have
occurred), Sylvan shall have met its obligation to shift customer service
responsibilities if Sylvan (i) provides telephonic direction to Microsoft or
another service provider as provided by Microsoft, and (ii) provides a web link
to Microsoft in a manner approved pursuant to Section 5 hereto, by a URL to be
provided by Microsoft;
(C) Provided Microsoft is not in breach or default of
its confidentiality obligations hereunder, Sylvan acknowledges its duties under
this subsection are independent of any other disputes or claims it may have
against Microsoft, and that it shall not utilize its practical relationship and
control over prior Microsoft customer service or records to achieve any
advantage or leverage in relation to such other disputes or claims; and
(D) Provided Microsoft is not in breach or default of
its confidentiality obligations hereunder, the duties of the parties under this
transition process shall be specifically enforceable by court order because
there would be irreparable damage to Microsoft, in the case of any interruption
of Microsoft customer service.
(c) Insolvent. For purposes of this Agreement, the term
"Insolvent" shall mean a financial condition such as to make the sum of a
party's debts greater than all of the party's assets, at fair valuation; or,
when a party has incurred debts beyond that party's ability to pay such debts as
they mature; or, when a party is engaged in a business or transaction for which
the party has unreasonably small capital.
(d) Effect of Default. In the event of a Default, the
parties shall have all rights and remedies provided in this Agreement or
otherwise available under law as limited by this Agreement.
13.3 Termination With Cause. Microsoft may terminate the Agreement
immediately upon written notice to Sylvan if Sylvan breaches any payment
obligation to Microsoft, or if Sylvan breaches
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Sections 7, 8 or 15.2. Otherwise, either party may terminate upon written notice
in the event the other party fails to cure any breach of this Agreement within
thirty (30) days of written notice of such breach.
13.4 Termination Without Cause. Either party may terminate the
Agreement without cause or the occurrence of a Default upon ninety (90) days'
written notice to the other party.
13.5 Survival. In the event of termination of this Agreement for any
reason, any unsatisfied payment obligations of Sylvan and Sections 2, 4, 6, 7,
8, 9, 10, 11, 13.2(b), 14, 15.3 and 15.5 shall survive. With respect to tax
matters, the terms and conditions of Section 15.4 shall survive termination
until the expiration of any applicable statute of limitations or extension
thereof.
13.6 Maintenance of Records and Reports Upon Termination. If this
Agreement is terminated for any reason, Sylvan will store all records and
reports for at least one hundred and eighty (180) days after the termination
date, and make such records and reports available to Microsoft at no additional
cost.
14. Audit Rights.
14.1 Record Keeping Requirements. During the term of this Agreement,
Sylvan agrees to keep all usual and proper production and shipment records and
books of account and all usual and proper entries relating to Sylvan's
performance of this Agreement for a minimum period of three (3) years from the
date they are created. Such records, books of account, and entries shall be kept
in accordance with GAAP.
14.2 Audit. Upon seven (7) days notice, Microsoft may cause an audit
to be made of Sylvan's books and records to verify compliance with the terms of
this Agreement and to verify statements issued and/or payments made by Sylvan.
Any such audit shall be made by an independent certified public accountant
selected by Microsoft (other than on a contingent fee basis) and/or Microsoft
Internal Audit Services, during regular business hours at Sylvan's offices.
Sylvan agrees that Microsoft or Microsoft's agent may enter upon Sylvan's
premises for the purpose of performing audits. Sylvan agrees to provide
Microsoft's designated audit or inspection team access to relevant Sylvan
records. Any such audit shall be paid for by Microsoft unless material
discrepancies are disclosed. "Material" shall mean a discrepancy of one percent
(1%) or higher between amounts remitted to Microsoft and Sylvan's records
excluding timing differences between transaction dates and posting dates and
corrections in progress from prior periods. If material discrepancies are
disclosed, Sylvan agrees to pay Microsoft for the costs associated with the
audit.
14.3 Audit Process. Any audit conducted pursuant to this Section 14
shall be made at Sylvan's office or such other reasonable location as Microsoft
may request. In no event shall an audit be conducted more than once quarterly,
unless the immediately preceding audit disclosed a material discrepancy.
Notwithstanding the foregoing, in the event Microsoft has a good faith belief
that one or more statements issued by Sylvan is inaccurate, incomplete, or
incorrect, Microsoft may cause an audit to be conducted at any time. If
accounting discrepancies in statements issued by Sylvan are disclosed as a
result of an audit, Sylvan agrees to implement and or require outside
contractors to implement agreed-upon corrective action. Nothing herein shall
preclude Microsoft from exercising any other rights or remedies it has under law
or other provisions of this Agreement.
14.4 Confidentiality. Notwithstanding the foregoing, Sylvan may edit
its books and records to protect confidential information of Sylvan that is
unrelated to the subject of a Microsoft audit, or to protect confidential
information of the customers of Sylvan.
15. Miscellaneous.
15.1 Independent Contractors. Sylvan is an independent contractor for
Microsoft, and nothing in this Agreement shall be construed as creating an
employer-employee relationship, a partnership, or a joint venture between the
parties.
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15.2 Assignment. This Agreement, and any rights or obligations
hereunder, may not be assigned or transferred by either party, except that
Microsoft may assign this Agreement to its subsidiaries or affiliates without
Sylvan's approval. For purposes of this Agreement, a merger, consolidation, or
other corporate reorganization or a transfer or sale of any or all of a party's
stock, or of all or substantially all of its assets shall be deemed to be an
assignment. This is a contract for personal services, and Microsoft relies upon
the qualifications, reputation and expertise of Sylvan to perform all
obligations hereunder. In particular, Microsoft relies upon Sylvan's history of
performance over six (6) years of operation.
15.3. Notices.
All notices and requests in connection with this Agreement shall be
deemed given as of the day they are received either by messenger, delivery
service, or in the United States of America mails, postage prepaid, certified or
registered, return receipt requested, and addressed as follows:
NOTICES TO SYLVAN: NOTICES TO MICROSOFT:
------------------ --------------------
Sylvan Learning Systems, Inc. Microsoft Corporation
1000 Lancaster Street *
Baltimore, MD 21201 *
Attn.: Robert Zentz Attn.: *
Email: [email protected] *
Telephone: (410)843-7322 Copy to: Law & Corporate Affairs
Fax: (410)843-8059 Fax: *
Copy to: Dori Gillam
Fax: (206) 281-9468
Email: [email protected]
Copy to: Anthony Scicchitano
Fax: (410) 843-8744
Email: [email protected]
or to such other address as the party to receive the notice or request so
designates by written notice to the other.
15.4 Taxes.
(a) The parties acknowledge that, under the terms of
this Agreement, Sylvan will deliver Exams in the U.S. and foreign countries in
its own name and on its own behalf. Sylvan shall be responsible for any income,
franchise, excise, sales, use, gross receipts, value added, goods and services,
property or similar tax imposed by any foreign, federal, state, provincial,
municipal, local and other taxing authority which is required to be paid by
Sylvan as a result of the transactions contemplated under this Agreement. Any
taxes, duties, levies, fees, excises or tariffs or any penalties, interest or
any additions thereon, incurred in connection with or related to the sale of
goods and services by Sylvan under this Agreement shall be the financial
responsibility of Sylvan, including penalties, interest and other additions
thereon, and Sylvan agrees to indemnify, defend and hold Microsoft harmless from
any taxes or claims, causes of action, costs (including without limitation,
reasonable attorneys' fees), penalties, interest charges and other liabilities
of any nature whatsoever related to such taxes, except and unless a foreign,
federal, state, provincial, municipal, local or other competent taxing authority
determines that Microsoft is liable for such taxes and assesses any liability
for such taxes directly upon Microsoft.
*Text omitted based upon request for confidential treatment.
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(b) If any taxes are required to be withheld by any
government on payments from Sylvan to Microsoft required under terms of this
contract, Sylvan may deduct such taxes from the amounts owed to Microsoft and
pay them to the appropriate taxing authority; provided, however, that Sylvan
shall promptly secure and deliver to MS an official receipt for any such taxes
withheld or other documents necessary to enable MS to claim a foreign tax
credit. Sylvan shall use its best efforts to obtain and deliver to Microsoft
such official receipts. Sylvan shall make certain that any taxes withheld are
minimized to the extent possible under the applicable law. Any import duties,
tariffs or similar charges imposed that are not clearly defined as "withholding"
taxes shall not be deductible.
(c) All amounts to be earned by Sylvan herein are
inclusive of all taxes imposed by all foreign, state, provincial, municipal,
local and other taxing authorities, including income, franchise, excise, sales,
use, gross receipts, value added, goods and services, property or similar tax,
now or hereafter imposed on Sylvan. Such taxes shall be the responsibility of
Sylvan and may not be passed on to Microsoft.
15.5 Governing Law. This Agreement shall be governed by the laws of the
State of Washington as though entered into between Washington residents and to
be performed entirely within the State of Washington, and Sylvan consents to
jurisdiction in the state and federal courts sitting in the State of Washington,
King County. Judicial proceedings regarding any matter arising under the terms
of this Agreement shall be brought in federal or local courts of the state
(Maryland or Washington) of the defending party. In any action or suit to
enforce any right or remedy under this Agreement or to interpret any provision
of this Agreement, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees.
15.6 Subcontracting Sylvan shall not have the right to subcontract any
portion of the Services to third parties.
15.7 Construction. If, for any reason, a court of competent
jurisdiction finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement shall be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the remainder
of this Agreement shall continue in full force and effect. Failure by either
party to enforce any provision of this Agreement shall not be deemed a waiver of
future enforcement of that or any other provision. This Agreement has been
negotiated by the parties and their respective counsel and shall be interpreted
fairly in accordance with its terms and without any strict construction in favor
of or against either party.
15.8 Entire Agreement. This Agreement does not constitute an offer by
Microsoft and it shall not be effective until signed by both parties. This
Agreement and the Non-Disclosure Agreement constitute the entire agreement
between the parties with respect to the services and all other subject matter
hereof and merge all prior and contemporaneous communications. It shall not be
modified except by a written agreement dated subsequent to the date of this
Agreement and signed on behalf of Sylvan and Microsoft by their respective duly
authorized representatives.
15.9 Force Majeure. Neither party shall be responsible nor be deemed
to be in default under this Agreement for any delay or failure in performance of
any of its obligations to be performed hereunder resulting from causes beyond
its reasonable control and without its negligence (collectively referred to
herein as "Force Majeure"). Such causes shall include acts of God, strikes,
lockouts, other labor disturbances, riots, insurrections, civil disturbances,
sabotage, embargoes, blockades, acts of war, power failures, or communication
line failures.
- --------------------------------------------------------------------------------
05/12/99 Microsoft Confidential 15
<PAGE>
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
MICROSOFT CORPORATION SYLVAN LEARNING SYSTEMS,INC.
/s/ * /s/ R. HOEHN-SARIC
- -------------------------------- ----------------------------------
Signature Signature
* R. Hoehn-Saric
- -------------------------------- ----------------------------------
Name (Print) Name (Print)
General Manager Co-CEO
- -------------------------------- -----------------------------------
Title Title
5-13-99 5-12-99
- -------------------------------- -----------------------------------
Date Date
* Text omitted based upon request for confidential treatment.
- --------------------------------------------------------------------------------
05/12/99 Microsoft Confidential 16
<PAGE>
<TABLE>
<CAPTION>
Exhibit A
Sylvan Statement of Work
- ------------------------------------------------------------------------------------------------------------
Date Revision Tracking Description
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2/22/1999 SOW sent to Sylvan *
- ------------------------------------------------------------------------------------------------------------
2/26/99 MS to add changes from 2/26 mtg.
- ------------------------------------------------------------------------------------------------------------
3/2/99 Sent to *
- ------------------------------------------------------------------------------------------------------------
3/22/99 Received Sylvan Comments
- ------------------------------------------------------------------------------------------------------------
3/24/99 * input Sylvan's comments into * accepted some earlier edits made
doc by MS that Sylvan agreed to.
- ------------------------------------------------------------------------------------------------------------
3/26/99 * Added Exam Publishing section
(sent to Sylvan on 3/22), a reference
to the * SOW and Time extension
language
- ------------------------------------------------------------------------------------------------------------
3/31 Accept changes as agreed to by *
- ------------------------------------------------------------------------------------------------------------
3/25 * sent SOW to *
- ------------------------------------------------------------------------------------------------------------
4/7 * added minor changes from *
* , remove tax language per
* and put in T/Cs
- ------------------------------------------------------------------------------------------------------------
4/14 Sent redrafted language to * This included new versions of MPPs
regarding Exam Publishing
- ------------------------------------------------------------------------------------------------------------
4/22 Accepted all changes per the meeting
with * , sent to * at version 4.0
- ------------------------------------------------------------------------------------------------------------
5/3 "final" changes per *
- ------------------------------------------------------------------------------------------------------------
</TABLE>
PURPOSE AND REQUIREMENTS SCOPE
The purpose of this document is to communicate the exam services that Sylvan
shall provide Microsoft for which Microsoft shall pay Sylvan a Service Fee as
set forth below. This document provides requirements for the MCP program World
wide, unless otherwise stated. Additional requirements for exam delivery in
Japan are listed in EXHIBIT B, THE JAPAN SOW. This SOW is a high level
description of the services required by Microsoft. Performance is critical to
Microsoft and the success of the program. In the event performance is poor or a
benchmark is not met, Microsoft may request additional information in the form
of action plans and resolution dates, including more frequent reports until
metric is met.
In general, Sylvan must provide the following services to Microsoft:
o Register candidates and appointment notification
o Use Microsoft's Candidate Manager and Microsoft's Voucher
tools as mutually agreed
o Deliver exams
o Administer candidate fee collection
o Collection of candidate data and remit to Microsoft
o Collection of exam results and remit to Microsoft
o Reporting
o Remittance of worldwide exam fee's to Microsoft in US
dollars
o Recruit and manage Sylvan Testing Centers in order to
deliver Microsoft exams.
1.0 OVERVIEW OF THE MCP PROGRAM
Through rigorous performance based testing (MCP Exams), the MCP Program
certifies the computer professional's ability to design, develop, implement and
support solutions with Microsoft products. MCP Exams are delivered through a
channel of testing centers that partner with exam Service Performers. In
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 1 05/12/99
<PAGE>
Exhibit A
addition to the MCP program Microsoft develops exams for the Microsoft Sales
Specialist Program (MSS). Requirements of this program are outlined in Exhibit
H, the MSS SYLVAN BRIEF.
2.0 RSC OVERVIEW
o At a minimum, Sylvan will provide toll free telephone service
to regions where Sylvan provides this service for other major
IT clients. Sylvan may change the telephone/fax numbers with 60
days written notice to Microsoft.
o BOTH MICROSOFT CERTIFIED PROFESSIONAL and SYLVAN PROMETRIC
TESTING shall be included in the telephone greeting when the
line is dedicated to Microsoft.
o Sylvan shall refer candidates to the appropriate Microsoft web
site for more detailed program information. When appropriate,
Sylvan shall refer candidates to Microsoft's Regional Education
Service Centers (RESCs).
2.1 BASIC ACTIVITIES
o Sylvan is responsible to fulfill its obligation to register
Microsoft candidates for exams. Sylvan shall provide all
necessary services to adequately fulfill candidate needs as
they relate to registration.
o Register candidates for taking an exam which shall include:
o receive incoming calls
o verify candidate information to ensure a duplicate
record is not created and to enforce any registration
policies that Microsoft has defined, per Exhibit C,
EXAM PROGRAM GUIDE
o receive & process incoming faxes required to fulfill
Sylvan's obligations
o make outbound calls as required to fulfill Sylvan's
obligations
o send outbound faxes as required to fulfill Sylvan's
obligations
o CSRs shall have email as required to fulfill Sylvan's
obligations
o Sylvan will provide registration and Microsoft services
a minimum of eight hours a day during normal business
hours as is culturally accepted in each country
o CSRs shall have access to Microsoft Candidate Manager
and Microsoft's Voucher Tool to fulfill Sylvan's
responsibilities based upon a mutually agreed upon
technology phase-in plan, as listed in Exhibit U,
MS-Cert Phase-In Plan.
2.2 KEY PERFORMANCE INDICATORS
PHONE SERVICE LEVEL measures the percentage of calls
answered within * seconds or less.
BENCHMARK: a minimum of * of inbound calls shall
be answered by a CSR within * seconds or less.
This shall be reported monthly by RSC. In the event this
benchmark is not met Sylvan shall report reasons for such
performance and actions taken to correct with completion
dates. Sylvan shall report monthly the total number of
calls received at each RSC. In addition, if the Phone
Service Level is not met, Microsoft may request that
Sylvan report these metrics weekly until the metric has
been met for four consecutive weeks. These metrics will be
reported to Microsoft via a mutually agreed upon format.
2.3 MCP EXAM PROGRAM INFORMATION
Sylvan's CSR staff shall be familiar with the information
contained within EXHIBIT C, EXAM PROGRAM GUIDE. Updated
program information will be relayed to Sylvan through, but
not limited to, the following methods: e-mail, Sylvan
Brief, web site or Statement of Work (SOW). If changes are
significant, Sylvan will be given 10 business days to
implement, otherwise implementation will be mutually
agreed upon. Sylvan will make program information easily
accessible to each phone/order entry representative and
the phone/order center management staff.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 2 05/12/99
<PAGE>
Exhibit A
Candidates requesting program information beyond that
found in Exhibit C the EXAM PROGRAM GUIDE should be
referred to Microsoft's web site or transferred to one of
Microsoft's Regional Education Service Centers (RESCs) as
necessary.
2.4 STAFFING
Sylvan shall staff to meet service levels.Sylvan shall
provide RSC staffing plans when requested by Microsoft.
Microsoft shall not request this report more than once per
quarter unless phone service metrics have been missed for
one full month.
2.5 LANGUAGE CAPABILITIES
If Microsoft wishes Sylvan's RSCs to support new
languages, they will be added upon mutual agreement.
2.6 REGIONAL SERVICE CENTER MOVES
Sylvan will provide a minimum of thirty (30) days notice
for any RSC move or any system move that can reasonably be
determined will affect the scheduling or testing of
candidates. In the event of urgent circumstances or an
overriding business need, Sylvan will provide a report
summarizing the move and its effect, if any, upon
Microsoft's testing program.
3.0 REGISTRATION AND SCHEDULING
3.1 REGISTRATIONS
o For each registration, Sylvan will ask the
following questions:
1. Have you taken a Microsoft Certification test
before?
2. Do you currently hold an external certifica-
tion? If so which one(s)? (Currently Microsoft
honors * certifications.)
o At a minimum, for each registration Sylvan will
collect the following information. For each RSC
registration Sylvan will also verify the following
information, which includes verification in
Microsoft's Candidate Manager as appropriate.
*
o For each NEW registration, Sylvan will verify and
spell back all information listed above (RSC
registration only).
o For each EXISTING registration, Sylvan will verify
all information listed above (RSC registration only).
3.2 CANDIDATE NOTIFICATION
Sylvan will implement, wherever possible, a method for
confirming to candidates their exam appointment time,
which may include email or other selected method.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 3 05/12/99
<PAGE>
Exhibit A
3.3 KEY PERFORMANCE INDICATORS
Sylvan shall report total number of registrations taken
for Microsoft candidates. This metric shall be broken out
by those received by phone (to include fax) at each RSC,
and those taken over the Internet. Sylvan shall report
these metrics monthlyly via a mutually agreed upon format.
3.4 CANCELLATION POLICY
CANDIDATE
Sylvan will allow all Microsoft candidates the opportunity
to reschedule or cancel a registration one business day
(24 hours) or more prior to the scheduled appointment and
offer the candidate a full refund if requested. If the
candidate does not cancel the registration one business
day or more prior to the scheduled appointment, the
candidate will forfeit the exam funds (see SECTION 18.1,
SYLVAN SERVICE FEES ) It is up to Sylvan's discretion to
make exceptions regarding cancellations requested with
less than one business day advance notice; however, Sylvan
will do so at their own expense.
SYLVAN
If Sylvan must cancel a candidate registration for any
reason, Sylvan will notify candidate no later than *
prior to scheduled exam. In the event that Sylvan
cannot contact candidate prior to cancellation, Sylvan
will make appropriate compensation to candidate, perhaps
in the form of a free exam at Sylvan's expense. Sylvan
will report all instances when a candidate's registration
is cancelled by Sylvan.
3.5 ADA
Sylvan will be responsible for generally maintaining
Sylvan test centers, located in the United States, and
otherwise conducting its own operations in compliance with
the Americans with Disabilities Act of 1990, and with
other applicable laws for jurisdictions outside the United
States. If Sylvan receives any requests from candidates
that require modifications to the content, duration or
delivery of a test or the location in which it is to be
delivered, Microsoft will have sole discretion in agreeing
to any such request and will be responsible for any
additional costs in making such changes.
4.0 QUALITY ASSURANCE
To ensure Customer Satisfaction, Sylvan shall implement a monthly
customer satisfaction survey with Microsoft review and input that
measures customer satisfaction. Sylvan shall survey a minimum
number of end users per month per Sylvan RSC, as mutually agreed
upon to be statistically sound. If Sylvan uses a third party to
conduct the survey, results of survey will be made directly
available to Microsoft and included in the Monthly Status Report.
If Sylvan conducts the survey via in-house resources results of
the survey will be made available to Microsoft as part of the
Monthly Status report, as listed in EXHIBIT F, THE REPORT MATRIX.
Customer satisfaction surveys should be comparable to surveys
currently used by Microsoft measuring MCP customer satisfaction.
Sylvan is encouraged to use Microsoft's satisfaction survey
provider.
Microsoft also reserves the right to perform one or all of the
following: a Microsoft customer satisfaction survey, call
monitoring and/or secret shopping of Sylvan's RSC representatives
where local laws permit and privacy considerations are met. If
Microsoft chooses to perform one or more of the above, it will be
at Microsoft's expense. Based on results of any or all of the
above mentioned survey or methods, Sylvan may be required to
implement a mutually agreed upon performance improvement plan to
increase the quality of candidate service in the RSC(s).
All customer surveys conducted by Sylvan Prometric shall be in
accordance with the local laws. Consultation, if needed, may be
provided by Microsoft and Microsoft service providers.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 4 05/12/99
<PAGE>
Exhibit A
4.1 CALL MONITORING
Where technology exists and local laws permit, Microsoft
shall be enabled to remotely monitor incoming phone calls
to Sylvan's RSCs, undetected by the CSR being monitored.
Additionally, where local law prohibits, calls being
monitored will not be recorded.
4.2 TRAINING
Sylvan must employ a designated trainer that is
knowledgeable about the Microsoft Program, as defined in
EXHIBIT C, THE EXAM PROGRAM GUIDE. Sylvan shall publish the
training documents for Microsoft review, as requested by
Microsoft. Microsoft may recommend specific areas of focus
for CSR training/retraining for the Microsoft program.
Microsoft will provide appropriate collateral as necessary
and may provide training as necessary.
4.3 ESCALATION RESOLUTION
Sylvan shall ensure the following are in place:
o In the event that an issue occurs that causes or has
the potential to cause a disruption in service to
Microsoft candidates, Sylvan will notify Microsoft as
soon as the issue is suspected.
o Escalation path established for Microsoft customers,
CSR's, Testing Center channel, Sylvan management and
Microsoft contacts. This will include dedicated email
aliases and/or a web site.
o Microsoft Escalation Tracking Database to capture, but
not limited to: date, issue (categorized in order to
roll up), CSR or other point of escalation
(Microsoft), resolution, date of closure per specific
Program Requirements
o A Microsoft Escalation Report shall be produced
monthly and included at each MBR. This report will be
of Sylvan's own design as listed in Exhibit F, THE
REPORTS MATRIXX.
o Sylvan is responsible to respond to all issues within
one business day and track the issue until resolved.
Sylvan will make its best efforts to resolve all
issues within * business days. In the event
an escalation must be forwarded to Microsoft for
further research, Sylvan will continue to track status
of the issue until resolved. Sylvan is also
responsible to compensate any Microsoft candidate
affected by deficiencies of Sylvan, at Sylvan's
discretion.
5.0 DATA
The following Sections, 5&6, define requirements, processes and
metrics regarding data and data feeds to Microsoft. Additional
requirements and procedures are defined in, EXHIBIT D, THE MISSING
EXAM RESULTS document.
The sections below refer specifically to the current model where
Sylvan collects data on Microsoft customers and remits data via a
file feed.
Sylvan is responsible to deliver all candidate and exam data per
processes, formats and KPIs outlined in this Statement of Work,
EXHIBIT A. In the event Sylvan is unable to correctly remit data to
Microsoft, Sylvan is responsible to resolve any issues or to bring
to Microsoft's attention and continue to track until the issue is
resolved. This includes all records rejected by MS-Cert or failure
to connect with a Microsoft server to download data.
5.1 INTEGRITY
Microsoft reserves the right to audit Sylvan's data as it
pertains to Microsoft candidates no more than twice per
year at Microsoft's expense. Audits will be scheduled at
least 7 business days in advance and occur during regular
business hours.
Microsoft may also request Sylvan to perform an audit of
their data and publish the results of that audit to
Microsoft.
5.2 DEMOGRAPHIC CHANGES
* Text omitted based upon request for confidetial treatment.
Microsoft Confidential Page 5 05/12/99
<PAGE>
Exhibit A
Sylvan is to complete all address changes received from
candidates via RSCs within * of receipt.
5.3 MERGING OF DUPLICATE RECORDS
Sylvan is to complete all merge requests received from
candidates via RSCs within two business day of receipt.
Sylvan will prevent duplicate records from being created
for candidates who register via RSCs.
5.4 SYLVAN MISSING EXAM RESULTS
Sylvan will research and make best efforts to resolve any
issue regarding an exam record that is missing from either
Microsoft or Sylvan following first formal notification by
Microsoft or its agents. This notification indicates that
the candidate is aware that his or her record is
incomplete and has escalated to Microsoft or Microsoft
agent. Quick resolution is critical. Sylvan will make best
efforts to provide either resolution or a plan for
resolution within * days. In the event an
escalation must be forwarded to Microsoft for further
research, Sylvan will continue to track status of the
issue until resolved. This issue should be considered an
escalation and rolled up with escalation reports listed
under Section 4.3, ESCALATION RESOLUTION. Missing exam
results procedures are defined in Exhibit D, MISSING EXAM
RESULTS DOCUMENT.
5.5 DATE STAMP
Sylvan shall include a date and time stamp on all records.
This date stamp should reflect when candidate's
demographic data has been updated as well as when the
candidate actually completed the exam.
5.6 DATA CONFIDENTIALITY
In the event that Microsoft grants Sylvan access to
Microsoft's candidate database, Sylvan agrees that such
access and the contents therein are Confidential
Information and subject to the provisions of EXHIBIT N,
the signed MICROSOFT CORPORATION AGREEMENT FOR SYLVAN
RESOURCES dated, and Exhibit O,the signed NON-DISCLOSURE
AGREEMEN.
5.7 SYSTEMS
Sylvan and Microsoft will implement a phased-in strategy
outlined below to achieve the following business
objectives:
o Eliminate duplicate candidate identities
o Validate vouchers
PHASE ONE (JULY, 1999)
Allow CSR's to access Microsoft Web based tools to check:
o Voucher validity: Sylvan will implement the MS Voucher
system to validate and store voucher transaction data.
Both parties will exercise best efforts to deploy in
an expeditious manner as mutually agreed.
o Existing candidate record (avoid duplicate): Microsoft
understands that phone service levels may be effected
through the months of July and August as Sylvan
implements this new procedure and infrastructure as
described EXHIBIT U, MS-CERT PHASE-IN PLAN.
PHASE TWO
Sylvan and Microsoft will design and agree on other
integration strategies to streamline the data and
registration processes. It is understood that certain
strategies may not be implemented in both call center and
Internet registration and scheduling.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 6 05/12/99
<PAGE>
Such integration strategies could include:
o Enforce retake policy across vendors based upon the
frequency of exams taken
o Capture of promotion codes to validate special pricing
6.0 DATA FEEDS
This section provides requirements for Data feeds to Microsoft.
Sylvan will comply with all requirements necessary to successfully
transmit data to Microsoft.
6.1 CONNECTIVITY
Sylvan will comply with Microsoft connectivity
requirements. This may include a direct link to Microsoft,
such as a TI line, RAS or a Point to Point Tunneling
Protocol (PPTP) or another method yet to be defined by
Microsoft. Sylvan will place files on Microsoft Network as
outlined in Exhibit E, EXAM IMPORT EXPORT FORMAT. Sylvan
is responsible to remit data to Microsoft each day. In the
event a connectivity issue prevents Sylvan from remitting
data, Sylvan owns resolution or escalation to Microsoft.
6.2 KEY PERFORMANCE INDICATOR
Microsoft requires that at least one data feed be sent
* . In the event that a file is not received,
Sylvan is required to respond to Microsoft within *
detailing reason why files were not sent, action plan and
resolution date to correct.
6.3 RECONCILIATIONS
Sylvan will, in cooperation with Microsoft, perform weekly
reconciliations in accordance with Exhibit D, MISSING
EXAMS RESULTS. Sylvan will research and make its best
efforts to resolve any discrepancies within *
business days. In the event a discrepancy must be
forwarded to Microsoft for further research, Sylvan will
continue to track status of the issue until resolved.
6.4 SUPPORT
Sylvan will facilitate direct contact between Microsoft's
technical support and maintenance team, and Sylvan's
support staff. Twenty-four hour support must be available
in the event of data problems. Sylvan must have its
systems configured to page Sylvan's support staff in the
event of server or database failure.
6.5 KEY PERFORMANCE INDICATORS
EXAM DATA SENT
At minimum, Sylvan shall deliver * of all
Microsoft exam results within * and *
within * . The * & * shall be
measured from the time the candidate finishes the exam to
the time that the exam record is sent to Microsoft. Sylvan
shall report this performance indicator on a monthly
basis. In the event this benchmark is not met Sylvan shall
report reasons for such performance and actions taken to
correct with completion dates. This metric shall be
reported via The Monthly Status Report, described in
Exhibit F, THE REPORTS MATRIXX.
EXAM SERVICE LEVEL
At minimum, Sylvan shall deliver * of all exams
to Testing Centers on or before candidate's scheduled
exam. Sylvan shall report this to Microsoft monthly via
Monthly Status Report as described in Exhibit F, THE
REPORTS MATRIXX. In the event the metric is not met on a
monthly basis, Sylvan shall report reasons for such
performance and actions taken to correct with completion
dates. MICROSOFT AND SYLVAN TO MUTUALLY AGREE TO A KPI
REGARDING DISCONNECTED MODEL BY AUGUST 1, 1999.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 7
<PAGE>
If either metric is missed, Sylvan will define reasons for
the missed metric. This should include the number of
affected records and expected time of resolution and
actions going forward to address root cause.
7.0 EXAM DELIVERY
This section provides the requirements for Exam Delivery.
The development and publishing of exams is detailed in
Section 9.0, EXAM PUBLISHING, POSTING AND DISTRIBUTION,
BETA AND DRIVER DEVELOPMENT section of this document.
7.1 EXAM SCHEDULE
Sylvan shall deliver all published exams offered by
Microsoft, unless otherwise specified by Microsoft.
7.2 LOCALIZATION
Microsoft requires Sylvan to support all localized exams
published by Microsoft. In addition, Microsoft requires
that Sylvan and Sylvan's systems support double-byte
capability as it relates to localized exams.
7.3 TIME EXTENSIONS
Any candidate taking an English exam in a country where
English is not the primary language will automatically
receive a 30-minute extension on their MCP exam.
7.4 MICROSOFT EXAM NON-DISCLOSURE AGREEMENTS (NDA)
Because candidates must agree to a Non-disclosure
Agreement (NDA) before being permitted to take an exam,
Sylvan must provide the following services:
o Proctors at the testing sites must be trained on the
NDA procedures for those individuals who question it
or refuse the agreement.
o The exam driver must have the ability to force
candidates to answer Yes/No to the NDA. If the
candidate chooses No, verify the response, and if
necessary, terminate the exam. The responses should
be captured.
o The exam driver must permit the NDA section to be
excluded from the primary timed section of the exam.
o Candidates who refuse the NDA at the test site (i.e.,
the exam is terminated) must not be scored as having
failed the exam. The candidate should also be issued
a full refund. Sylvan will either invoice Microsoft
for Service Fees associated with this event or shall
break out separately in MERT reporting. Either
process shall be mutually agreed upon between Sylvan
and Microsoft.
7.5 EXAM SECURITY BREACH
Sylvan should identify any potential suspicious activity
regarding a candidate taking a Microsoft exam. Each
incident should be escalated to Microsoft and should be
tracked in the Monthly Status Report. Escalations may
include questionable activity on part of a MCP as well as
a MCT. Microsoft reserves the right to take action
regarding Microsoft's candidates and trainers in addition
to requiring Sylvan to take appropriate action as
mutually agreed to by Sylvan and Microsoft. Sylvan and
Microsoft to work together to report and reduce piracy
and cheating issues. Should Sylvan shut down a testing
site for deviations from the Sylvan/Microsoft standard,
Microsoft will ensure that the site is not allowed to
deliver tests with any test delivery vendor for 6 months
or until Microsoft and the vendor(s) has determined the
site is eligible to begin delivering exams again, at
which time the site can resume delivering Microsoft exams
through any or all vendors.
7.6 TESTING CENTER SECURITY
Physical security at testing centers must address the
following issues:
o Live proctoring (i.e., a Testing Center
Representative must be physically on-site).
Proctor must ensure that:
Microsoft Confidential Page 8
<PAGE>
o Positive identification is made before admitting
candidates, including two pieces of
identification, one with a photo ID.
o Candidates use only an individual or personal
whiteboard (dry eraseable) or chalk board.
Currently, Sylvan also allows test center provided
scratch paper. Sylvan will make reasonable effort
to move toward eliminating scratch paper as
mutually agreed to by Microsoft and Sylvan. Sylvan
test center will provide the white board, chalk
board or scratch paper to the candidate prior to
taking the exam and retrieve it upon the
candidate's exit. No other foreign materials are
allowed into the testing area and the examinee
shall return the whiteboard, chalkboard or scratch
paper to the proctor before leaving the testing
area.
o Proper noise levels are maintained (including no
talking between test takers)
o Time limits are strictly enforced
o Test stations must be positioned such that candidates
can not see each other's screens (privacy panels may be
used)
o Candidates should have no access to stored exams
7.7 TEST CENTER COMPLIANCE
The reputation of the MCP program is based in part on the
security and integrity of the exam taking experience.
Sylvan should make every effort to ensure that all test
centers are compliant with Sylvan's policies and
procedures. In addition, Sylvan has defined a Quality
Control and Assurance Program to ensure Sylvan's testing
centers adhere to Sylvan's policies and procedures. The
primary objective is to identify and correct deviations
from Sylvan's standards within * business days.
In the event that a Sylvan testing center is suspected of
deviations from Sylvan's standard, Sylvan shall take any
reasonable steps to remedy the situation. In the event
that Sylvan terminates a testing center's contract, Sylvan
will take reasonable steps to ensure that client coverage
is not affected, by identifying alternative locations for
test delivery. Sylvan will report instances of test center
non-compliance in the Business Reviews.
Microsoft reserves the right to secret shop Sylvan's
testing centers to ensure the integrity of the exam
experience and to ensure that Sylvan's policies and
procedures are being followed. Such secret shopping shall
be conducted in accordance with applicable local laws and
regulations. If Microsoft discovers suspicious activity,
Sylvan shall continue to investigate the test center(s) in
question and take appropriate action. In addition,
Microsoft reserves the right to disallow any Sylvan
testing center from delivering Microsoft exams either
based on Microsoft findings through secret shopping or
from information provided by Sylvan indicating suspicious
activity or a breach of exam security by a Sylvan testing
center.
8.0 PROJECT MANAGEMENT
8.1 SYLVAN BRIEFS
Microsoft and Sylvan agree to use a Brief document as a
method of formal communication for delineating new
activities that Sylvan and Microsoft mutually agreed upon.
Sylvan will respond to Microsoft in * business
days upon receiving the Sylvan Briefs to discuss any
potential issues. Sylvan will reject any Sylvan Brief that
is not authorized by signature by the Sylvan Account
Manager or other designated Microsoft contact. Briefs will
be delivered to Sylvan's Executive Account Mgr and/or
Program Mgr.
8.2 DOCUMENTATION
Upon request Sylvan will provide Microsoft with copies of
their policies or procedures relevant to the Microsoft
Program as long as they are not confidential to Sylvan.
Any disclosure of confidential documentation or
information provided to Microsoft will be subject to the
Non-Disclosure Agreement then in effect between Microsoft
and Sylvan.
* Text omitted based upon request for confidetial treatment.
Microsoft Confidential Page 9
<PAGE>
Sylvan will keep an issues log of all outstanding issues,
world wide, regarding Microsoft program(s). Format to be
mutually agreed upon by Sylvan and Microsoft.
8.3 Change Management
Sylvan will provide Microsoft with notice of any changes
to major processes or procedures relevant to the Microsoft
Program as long as they are not confidential to Sylvan.
Any disclosure of confidential documentation or
information provided to Microsoft will be subject to
Non-Disclosure Agreement then in effect between Microsoft
and Sylvan.
9.0 Exam Publishing, Posting, Distribution, Beta Exams and Driver
Development
9.1 Sylvan Exam Publishing and Posting Process
Publication of an exam is the actual construction of the exam.
Currently, this involves compiling information from several
documents and spreadsheets provided by Microsoft. Regarding the
Exam Cap, publication includes the following versions of each exam:
Microsoft Internal, Beta, Beta Rescore and First Live exam. Posting
of an exam includes the process necessary to activate and
distribute the exam so that it can be taken by exam candidates.
Sylvan will publish directly and post exams for Microsoft until
such a date that Microsoft may either elect to publish the exams or
designate a third-party (MS designee) to publish the exams.
Sylvan Published Exams
The steps for Sylvan to publish and post exams are as follows:
o Microsoft will provide Sylvan with a monthly exam publishing
and posting schedule by the * of the preceding
month
o Microsoft will forward all necessary files to Sylvan for
publishing at least * business days before the exam
is to be posted
o Sylvan will provide to Microsoft a review disk that contains
all necessary files for publishing at least *
business days before the exam is to be posted
o Microsoft will perform QA on the review version of exams and
return comments to Sylvan within * business days of
receiving the review exam files
o Sylvan will post final approved version of exam per the
mutually agreed upon live date.
o Sylvan will deliver back to Microsoft copies of all final
versions of published files within * business days
of exam live date
Refer to Exhibits S, THE MASTER MPP and T, MASTER SIM MPP for
specific timelines.
MICROSOFT CAP OF PUBLISHED EXAMS: During the period that Microsoft
requests that Sylvan publish Microsoft exams, Sylvan will include
in the Service Fee ($ * per exam administered to candidate
world wide) the publishing of * Microsoft exams.
FEES FOR PUBLISHED EXAMS THAT EXCEED THE MICROSOFT CAP: See SECTION
18.1, SYLVAN SERVICE FEES.
Microsoft Published Exams
During the period that Microsoft or Microsoft designee is
publishing'exams and Sylvan is posting exams:
o Sylvan will provide Microsoft or Microsoft designee with
current builds and documentation of Sylvan test driver. Such
disclosure shall be subject to the Non-Disclosure Agreement
then in effect between Microsoft and Sylvan.
o Sylvan will provide Microsoft or Microsoft designee with
training on the publication process using Sylvan test driver
and associated tools
o Sylvan will provide all of the necessary technical support to
Microsoft or Microsoft designee on the publication process
using their test driver and associated tools
o Microsoft or Microsoft designee will notify Sylvan a minimum
of * business days prior to the scheduled posting
of an exam. Microsoft or Microsoft designee will provide
Sylvan with
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 10
<PAGE>
monthly forecasts of exam postings.
o Microsoft or Microsoft designee will publish exams (in
publication-ready format), send to Sylvan, and Sylvan will
activate within * business days. Sylvan will begin
taking registrations once Microsoft or Microsoft designee
sends the exam to Sylvan.
9.1 Beta Exams
Microsoft will provide adequate notice, and Sylvan and
Microsoft will work together to establish a mutually
acceptable Beta process prior to Sylvan beginning to
deliver Beta exams. Elements of the Beta process are
defined in EXHIBIT S, THE MASTER MPP.
o Microsoft will define beta exam parameters for
Sylvan. Sylvan will open and close beta exam
registration based on these parameters.
Parameters may include a set time frame, a fixed
number of registrations, etc.
o Sylvan will return Beta exam results to Microsoft
as per normal results reporting processes.
Microsoft will establish the cut score.
o Beta exams will be re-scored by Sylvan and
results will be sent to candidates and Microsoft
within * business days or another
mutually agreeable time frame of receiving the
cut score. The objective is to provide final beta
scores to Microsoft and Beta exam candidates
prior to Beta exam moving to live version.
Failure to meet the time frame will be cause for
Sylvan to make reasonable compensation to the
affected candidates, perhaps in the form of a
free exam at Sylvan's expense.
9.2 SYLVAN PUBLISHED LOCALIZED EXAMS
During the period when Sylvan is publishing and posting
localized exams for Microsoft:
o Microsoft will provide Sylvan with an exam publishing
and posting schedule on a biweekly basis.
o During exam localization, Microsoft will provide all
necessary files for creating a review disk for a
technical review by a Microsoft subsidiary. Sylvan
will return the review disk within *
business days.
o Second review disks are required on an infrequent
basis.
o Microsoft will forward final files (which incorporate
changes made by the technical reviewer) to Sylvan and
Sylvan will publish and post the exam. The live date
will be no more than * after
receipt of final files from Microsoft.
o Any changes made to the final files during the
publication process will be reported to Microsoft on
the same day as they are implemented.
o Sylvan will announce exam live dates to Microsoft no
fewer than two days before the actual live date.
o Microsoft will make best efforts to request that no
more than 4 localized exams be published by Sylvan at
a given time. Additionally, Microsoft will make best
efforts to request that no more than 6 revisions be
made to localized exams at a given time. If there is
a business need to exceed these numbers of localized
exams, Sylvan and Microsoft will mutually agree upon
acceptable numbers and timeframes.
9.3 TECHNICAL DEVELOPMENT
o Microsoft and Sylvan will have a minimum of 3
technical summits annually.
o Microsoft and Sylvan will develop a plan for rolling
out a 32 bit test driver in the Sylvan channel by
July 15, 1999. Microsoft and Sylvan will work
together to develop the various testing plans and
rollout schedules by region as mutually agreed upon.
o Microsoft and Sylvan will continue to work together
to successfully implement new item types:
o In the case where Microsoft or Microsoft
designee is developing a new item type (e.g.
simulations, drag-n-drop) or implementing a new
test technology (e.g. adaptive algorithm),
Sylvan will provide resources as appropriate
(this may
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 11
<PAGE>
include regular conference calls or in person
meetings). Microsoft will notify Sylvan a minimum of
* days prior to the onset of the project.
o The role of Sylvan is to ensure that the new item
type/test technology will function within the design
constraints within the Sylvan testing system. It may
be necessary for Sylvan or Microsoft or Microsoft
designee to travel to ensure the success of the
project.
o All of these projects must include a thorough testing
plan and distribution plan for the test centers.
o Sylvan will perform final integration testing on new
item types and new testing technologies. The Final
integration testing period will be *
business days. All project schedules to be mutually
agreed upon prior to implementation of a given
project.
10.0 Channel
10.1 Geographic Coverage
Microsoft may determine a specific geographic area where
market penetration is needed. Sylvan will make reasonable
efforts to fulfill Microsoft's request regarding
additional market penetration.
10.2 Channel Upgrades
Changes to Microsoft's exam platforms may require that
Sylvan's testing center channel upgrade hardware or
software used to deliver exams. Microsoft and Sylvan will
define a mutually agreeable timeline as channel upgrades
are required. Sylvan will exercise best efforts in
managing its testing channel to maintain testing center
hardware and software requirements. Microsoft is under no
financial responsibility for these upgrades. Microsoft may
consider providing Microsoft software at a discounted
price to assist in these upgrades. If a site refuses to
comply, Microsoft may support Sylvan's efforts to
communicate the importance of any upgrade to the site. If
a site fails to comply with requests to upgrade, that site
may be prevented from delivering Microsoft exams until
appropriate upgrade is completed.
10.3 New Testing Center Openings: MS CTECS
Sylvan agrees that each Microsoft Certified Technical
Education Center (MS CTEC) that applies to be a Sylvan
Testing Center will be approved by Sylvan for Testing
Center status providing all standard Testing Center terms
and conditions are met. Sylvan agrees that Testing Center
status will not be denied to a MS CTEC due to geographical
saturation of Testing Center sites or potential business
volumes.
10.4 NEW TESTING CENTER: APPLICATION PROCESSING
Sylvan will respond to all applications within *
working days of receiving the new testing site application
form. Sylvan will process any information that may help a
testing center reach approval status within *
hours.
10.5 Reporting
Sylvan shall produce the following channel reports per
Exhibit F, THE REPORTING MATRIX:
o Sylvan will produce quarterly a geographic map
displaying where Sylvan testing centers are located,
once Microsoft has provided the appropriate software.
o A monthly summary of all test centers by region.
11.0 CURRENT PROMOTIONS
Microsoft may run Microsoft approved promotions and /or special
pricing to Microsoft candidates via Sylvan. The following section
details current Microsoft promotions which will affect the
candidate fee collected by Sylvan, but does not affect the Service
Fee. In countries labeled as LTDMA, candidate will pay the
Promotion price or the LTDMA price (see below for a definition of
LTDMA), or whichever is lower. Microsoft reserves the right to run
multiple promotions simultaneously. The following promotions are
subject to change and any changes will be defined
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 12
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in a separate Sylvan Brief. Microsoft may request reports regarding
activity of each promotion, as listed in Exhibit F, THE REPORTING
MATRIX.
11.1 Beta Exams
Candidates that register for a Beta exam may be charged a
reduced price. See Exhibit G, the PRICING SCHEDULE.
11.2 Upgrade Exams
Any upgrade exam is one that a candidate is required to
take to remain certified after another exam is scheduled
to be retired (e.g. NT4.0 instead of NT3.5 1). These
upgrade exams are offered at * discount or full
LTDMA.
11.3 LONG TERM DISCOUNT MARKET ADJUSTMENTS (LTDMA)
In markets where Microsoft is interested in making an
investment, Microsoft may apply discounts to create
attractive prices for that market. Countries for which the
LTDMA price should be charged will be defined in Exhibit
G, THE PRICING SCHEDULE.
11.4 External Certification Offer
This offer exempts * from the Networking Exam
requirement, providing a cost savings of one MCP exam.
Candidates must voluntarily provide Sylvan proof of
certification via a faxed or mailed copy of candidate's
certificate. Sylvan will flag these candidates in the file
feeds sent to Microsoft as outlined in Exhibit E, EXAM
IMPORT EXPORT FORMAT document. Microsoft reserves the
right to recognize additional certifications. This is for
RSC registrations only.
11.5 Microsoft Special Event Testing
From time to time Microsoft may provide special pricing to
candidates at testing events. These will be defined in
separate Sylvan Briefs.
11.6 New Exams
All candidates who have taken and passed the previous
version of the exam pay * of the standard
retail price, or full LTDMA whichever is less, for the new
exam (e.g. the Windows 95 exam when Windows 98 is
released) delivered at Sylvan's test centers worldwide for
a 3 month period. Microsoft will define those exams that
are currently affected by this promotion in a separate
document and will inform Sylvan of additional exams that
fall into this category as they occur.
12.0 Vouchers
The following section is intended as an overview of vouchers.
Financial considerations will be covered in SECTION 18.
VOUCHERS FROM MICROSOFT CORPORATION
Microsoft may choose to offer candidates discounted Microsoft
exams by distributing vouchers to candidates. This may be
accomplished by distributing paper or electronic vouchers. These
vouchers will be created by Microsoft, a Microsoft partner or a
Microsoft agent. Sylvan will honor these vouchers as a valid form
of payment for Microsoft exams being taken. Sylvan will charge
Microsoft the standard Service Fee, per section 18.1 of this
STATEMENT OF WORK, for each Voucher from Microsoft redeemed at
Sylvan. Sylvan will use Microsoft's Voucher Tool to validate that
the voucher is valid.
Sylvan Generic Vouchers
Sylvan may choose to create and support a paper or electronic
voucher system of Sylvan's design in order to facilitate payment
for exams, including Microsoft exams. Sylvan's system shall track
voucher usage in order to ensure that a single voucher is not used
more than once for a Microsoft exam. Additionally, Sylvan may use
a Sylvan Generic Voucher to facilitate Sylvan discounts. Any
discounted amount will be subtracted from Sylvan's Service Fee and
not the amount remitted
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 13
<PAGE>
to Microsoft. If the Sylvan Generic Voucher is used to register a
candidate for a Microsoft exam, Sylvan is subject to the pricing as
outlined in this STATEMENT OF WORK (see Section 18 for specific
policies and procedures).
13.0 Business Review meetings
Sylvan agrees to participate in regular Business Review meetings
and present according to an agenda as mutually agreed upon with
Microsoft in advance. These reviews will take place monthly. At
Microsoft's discretion, Sylvan will also need to present on a
Regional basis at specified Microsoft Regional locations. Sylvan
will prepare presentation using Microsoft's PowerPoint software
and distribute presentation in softcopy as well as hard copy.
These reviews will typically take place at Microsoft, although
reviews may take place at Sylvan or other locations
as mutually agreed upon.
14.0 DEDICATED POINTS OF CONTACT
Sylvan will supply the following points of contact for Microsoft
(each function does not have to be supported by an individual
resource if the function is adequately fulfilled):
o Account Executive. This person should be responsible, at a
high level, for all aspects of the relationship between
Sylvan and Microsoft. Responsibilities to include, but not
limited to: exam development & publishing, Registration
vehicles, finance, data feeds, systems, marketing, contracts
and pricing.
o PROGRAM MANAGER. This person should have a more intimate,
working knowledge of the relationship. Responsibilities to
include, but not limited to: resolving open issues with the
day to day management of the MCP program as it is delivered
by Sylvan.
o TECHNICAL CONTACT. This person should have intimate knowledge
of Sylvan's data systems and exam development and publishing.
This person should be able to effectively work with Microsoft
on new technologies in exam development and the data systems
that support those exams. This person will also be
responsible for data feed, merges and reconciliation
requirements.
o EXAM PUBLISHING CONTACT. This person should be responsible
for all aspects of exam publishing.
The Program Manager may be dedicated to the Microsoft account and
of sufficient level within Sylvan to make decisions and direct the
appropriate support people. This point of contact will be expected
to meet (via conference call) with Microsoft Sylvan Account
Manager and the Microsoft Exam Development Team or other Microsoft
contacts at least once a week. The Account Executive, Technical
Contact and Exam Publishing Contact need not be dedicated to
Microsoft, but must be known to Microsoft and responsive to
Microsoft, and if the people in these roles change, Microsoft must
be notified of the change.
15.0 REMOTE TESTING
Remote testing is defined as any Microsoft testing event
occurring outside of a Sylvan testing center or on-site at
Microsoft. Sylvan may be asked by Microsoft to deliver exams at a
remote site. This will be detailed in a Brief as necessary.
TESTING CENTER ASSISTED TESTING
o Testing Centers may be used to assist at 'remote testing'
events.
o Sylvan owns responsibility for ensuring that the Testing
Center performs to the standards written between Sylvan and
their Testing Center channel for such events.
o Microsoft representatives may approach any Testing Center to
facilitate regional and/or worldwide promotions and events
for Microsoft programs. In this case, Microsoft is
responsible for ensuring that the Testing Center performs to
the standards written between Sylvan and the Testing Center.
All financial compensation in such promotions shall follow
the model outlined in Section 18.
o Microsoft may request a report from Sylvan regarding remote
testing.
Microsoft Confidential Page 14
<PAGE>
16.0 GENERAL AUDITS
Microsoft reserves the right to audit no more than twice yearly,
with an advance notice in writing of 7 business days and during
business hours, all processes, procedures and reporting documented
within this STATEMENT OF WORK to ensure full compliance with this
STATEMENT OF WORK. In the event that a Microsoft audit reveals
non-compliance with processes, procedures and reporting detailed in
this document, Sylvan is subject to the penalties listed in the
terms and conditions of the of the Exam Services Agreement.
17.0 REPORTING
Sylvan will produce all reports listed in EXHIBIT F, the REPORTING
MATRIX. All reports must be sent to Microsoft electronically in a
format that can be read by Microsoft products such as Excel, Word
or PowerPoint. Microsoft reserves the right to request, via vendor
brief, any additional reporting as either regular, standard reports,
or on an ad hoc basis, or may request changes to reports identified
in EXHIBIT F. Sylvan will create a monthly status report that will
be a roll up of other reports generated, see EXHIBIT, F, THE
REPORTING MATRIX.
18.0 FINANCIAL OVERVIEW
Sylvan will provide financial reporting on a monthly basis as part
of the Services provided by Sylvan to Microsoft. Exam revenue is
posted through Microsoft's SAP system via MERT, SEE EXHIBIT J the
MERTREQUIREMENTS. Microsoft exams will be run under the
net-remittance model, with Sylvan being fully responsible for bad
debt risk and all risks associated with repatriation of money from
affiliated locations. Under the net-remittance model, Sylvan will
remit to Microsoft all candidate fees for exams delivered less its
standard delivery fee of $ * per exam. Sylvan will also
remit to Microsoft all fees for expired registrations and vouchers
less the applicable Sylvan Service fee of $ * . Microsoft
agrees to pay Sylvan credit card fees of $ * in 12 monthly
payments (see below) and Sylvan agrees to be fully responsible for
the payment of all credit card fees associated with the exam
scheduling and/or delivery.
Failure to follow the requirements listed in this section, including
but not limited to, any failure to deliver compliant accurate and
timely reporting may be deemed breach of contract and Microsoft and
Sylvan may seek any or all remedies hereunder.
18.1 SYLVAN SERVICE FEES
DELIVERED EXAMS AND NO SHOWS
Microsoft will compensate Sylvan Prometric $ * for
each Microsoft exam delivered and for each exam scheduled
but not canceled by the candidate, worldwide (also labeled
a "No show") as a Service Fee representing payment in full
for Sylvan's successful completion of all of its services
including, but not limited to, publishing services (see
below); credit card fees (see below); connectivity fees
associated with delivery of exam results to Microsoft;
standard reporting; facilitation of discounts; travel to
and from Microsoft and/or Microsoft related events; and
all other services defined in this Statement of Work. If
Sylvan chooses to discount a Microsoft exam, Sylvan shall
do so at Sylvan's expense and without affect to
Microsoft's remittance.
TRANSACTION FEE
Sylvan Prometric will receive a $ * transaction
fee for each prepaid Microsoft exam registration that
later expires. This includes Microsoft vouchers, Sylvan
generic vouchers, credit card payments and other forms of
payment used to register for a Microsoft exam on or after
July 1, 1999. All transaction fees should be detailed
separately via MEERT.
CREDIT CARD FEES
Microsoft will make a * payment toward credit
card fees during the first contract year. Sylvan assumes
all other credit fees. This will be paid in 12 monthly
payments. Sylvan will submit a monthly invoice to
Microsoft.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 15
<PAGE>
EXPIRED EXAMS
If the candidate has prepaid Sylvan for a Microsoft exam
prior to July 1, 1999 and the registration expires on or
after July 1, 1999, those forfeited funds will be split
between Sylvan and Microsoft * .
Sylvan to report this activity via the Forfeiture Report,
per Exhibit F, THE REPORTING MATRIX.
SYLVAN GENERIC VOUCHERS
In the event that Sylvan offers a generic voucher to the
marketplace, Microsoft will only receive payment in the
event that a candidate registers for a Microsoft exam. In
this case, payment to Microsoft will follow the same
business rules outlined in Section 18.1, SYLVAN SERVICE
FEES. above.
EXAM PUBLISHING
The first * exams within the contract year will
be published for no additional charge. After the first
* , the fee will be $ * per exam. A
published exam is a live exam, a localization or a
revision. Betas and internal exams have no additional
charge. Sylvan will report the number of exams published
to Microsoft monthly to track against the *
exam cap. See Section 9.1, SYLVAN EXAM PUBLISHING AND
POSTING PROCESS for additional details.
18.3 THE PRICING SCHEDULE MAINTENANCE
Microsoft has created a price schedule, referred to as
Exhibit G, THE PRICING SCHEDULE, which lists all Microsoft
end user exam prices and expected currencies by country.
Microsoft reserves the right to make any changes to
Exhibit G, THE PRICING SCHEDULE, including prices to end
users, up to once per quarter. Microsoft will communicate
all changes to THE PRICING SCHEDULE to Sylvan 30 calendar
days prior to the date that the change(s) are to be
implemented by Sylvan.
CURRENCY CHANGES
In the event that Microsoft requests Sylvan to collect
candidate fees in a currency that Sylvan is not currently
supporting for its other clients, Sylvan and Microsoft
will mutually agree upon implementation and timelines.
COLLECTING IN EUROS
Sylvan to collect candidate fees in Euros in those
countries identified as being in the Euro-zone. See
Exhibit R, THE EURO BRIEF.
18.4 MCP SERVICE FEE EXAMPLES
FULL FEE EXAMPLE:
Microsoft sets the MCP (Customer type) ERP of $CDN *
for Canada (Country). $CDN * converts to
$US * using the buy rate from the Wall Street
Journal on the last day of the fiscal month
The Net Remittance = (ERP - Sylvan Services Fee)
($ * - $ * ) = $ *
The financial transaction would be:
Extended/Invoice amount: $ *
Total Service Fee $ *
Total Net Remittance Amount $ *
* OFF DISCOUNT EXAMPLE:
If Microsoft wanted to offer * off for a
particular exam or to a particular customer in the same
country as described above, the fee collected becomes $ *
instead of $ * and the Net Remittance would be $ * instead
of $ * . The Net-Remittance = (ERP - Sylvan Services Fee)
($ * - $ * ) = $ *
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 16
<PAGE>
The financial transaction would be:
Extended/Invoice amount: $ *
Total Service Fee $ *
Total Net Remittance Amount $ *
LTDMA PRICING EXAMPLE:
Long Term Discount Market Adjustments (LTDMA) are applied
to developing countries. If an LTDMA price was charged in
India, the candidate would pay $ * , the Sylvan
Services Fee would be $ * and the Net Remittance
would be -$ * . The financial transaction would
be:
Extended/Invoice amount: $ *
Total Service Fee $ *
Total Net Remittance Amount -$ *
SYLVAN DISCOUNT EXAMPLE:
If Sylvan chooses to discount, via a prepaid exam or
voucher, a Microsoft exam in North America by
* , the discounted amount, $ * ,
should be subtracted from Sylvan's Service Fee and the
difference remitted to Microsoft. In the event that the
customer redeems the voucher prior to expiration, the
final transaction would be:
Extended/Invoice Amount: $ * (per exam)
Total Service Fee: $ * (per redeemed exam)
Total Net Remittance: $ * (per redeemed exam)
In the same example, if the voucher is used to register
for a Microsoft exam and expires prior to being redeemed,
the final transaction would be:
Extended/Invoice Amount: $ * (per exam)
Total Transaction Fee: $ *
Total Net Remittance: $ * (per unused
exam/voucher)
19.0 COLLECTIONS BY SYLVAN
19.1 CURRENCIES
Microsoft will establish the Suggested Retail Price in
various currencies. When consolidating reporting,
local currencies should be converted to USD using the buy
rate from the Wall Street Journal as published on the
last day of the fiscal month.
19.2 ACCEPTABLE PAYMENT METHODS
Sylvan will determine acceptable payment methods,
however, pricing is based on the assumption that all
payments will be made on a prepaid basis and therefore
have no associated bad debt or cost of money risks.
Microsoft accepts no liability for unpaid debts if Sylvan
chooses to extend terms. As a guide, the following
payment methods will be offered:
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 17
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19.3 CREDIT CARD TRANSACTIONS
All credit card orders should be authorized prior to exam
delivery, in order to minimize Sylvan's bad debt
exposure. Sylvan shall ensure that all language on credit
card invoices to end users does not in any way indicate
that Microsoft is generating the invoice.
19.4 BANK ORDER AND CHECK TRANSACTIONS
Sylvan should take physical possession of all checks and
bank orders prior to exam delivery, in order to minimize
Sylvan's bad debt exposure. Sylvan shall ensure that all
language regarding invoices associated with bank orders
and check transactions to end users does not in any way
indicate that Microsoft is generating the invoice.
19.5 PURCHASE ORDER TRANSACTIONS
Sylvan may extend credit terms to any customer where they
deem necessary, but does so at their own discretion and
risk. It is recommended that Sylvan use all credit tools
available to assess each customer's credit worthiness
prior to extending credit terms. Sylvan shall ensure that
all language regarding invoices associated with purchase
order transactions to end users does not in any way
indicate that Microsoft is generating the invoice.
19.6 REMITTANCE TO MICROSOFT
Regardless of Sylvan's ability to collect from a
candidate, Microsoft shall receive full remittance as set
forth in this STATEMENT OF WORK.
20.0 BANKING RELATIONSHIP
Microsoft will not own any depository bank accounts. Sylvan will
own all Depository Bank Account(s) for management of this program.
20.1 CASH REMITTANCE
Based on the MERT reconciliation report, Sylvan will wire
transfer the remittance amount to Microsoft on the 8th
business day following fiscal month end. The transfer
amount will be in US dollars, as set forth in Section 19,
and should be wired to:
Microsoft World Wide Programs *
Account *
ABA *
Swift *
*
20.2 CASH RECONCILIATION REPORT
Sylvan is required to submit the MERT reconciliation
report by the 8th business day following fiscal month end.
This report reconciles the net MERT revenue royalties
plus any other miscellaneous revenues due. The
reconciliation amount is the amount payable to Microsoft
by the 8th business day following fiscal month end. See
EXHIBIT K, MERT SAMPLE REPORT for an example of a
reconciliation report.
20.3 INVOICING
From time to time, Microsoft may engage Sylvan for
activities not stated in this STATEMENT OF WORK. If
mutually agreed, Sylvan will invoice Microsoft for any
expenses outside of exam delivery costs. Hard copy
invoices should be provided on a monthly basis to the
Financial Operations group at Microsoft and should be
accompanied by sufficient backup to validate all charges.
All invoices will be payable by Microsoft on a net 30 day
basis from receipt of invoice. All invoices will be for
the previous month's activity and should be sent to:
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 18
<PAGE>
(Current) Microsoft Financial Operations Accountant
*
*
Electronic copy must be submitted to Microsoft via MERT.
While the hard copy may be at a more summarized level
than the MERT reporting, Sylvan must ensure that hard
copy invoicing ties to MERT submissions.
All invoices should be sent to Microsoft within 5
business days of fiscal month-end. See sample below.
Sample Invoice
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
<S> <C>
------------------------------
VENDOR NAME
VENDOR ADDRESS 1 ------------------------
VENDOR ADDRESS 2 Invoice #
VENDOR ADDRESS 3 ------------------------
Vendor Phone
------------------------------ PAGE 1 OF 1
------------------------
------------------------------ DATE
Microsoft CUSTOMER
------------------------------ Our Ref #
ONE MICROSOFT WAY ------------------------
Redmond,WA 98053
------------------------------
Invoice for COURSEWARE
-------------------------------------------------------------------------------------------------
STOCK
CODE Description Qty Price TOTAL
-------------------------------------------------------------------------------------------------
$0.00
$0.00
$0.00
$0.00.
$0.00
$0.00
-------------------------------------------------------------------------------------------------
PAYMENT TERMS ARE NET 30 DAYS
TOTAL $0.00
-------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
21.0 FINANCIAL REPORTING
Sylvan shall provide compliant monthly financial reporting (MERT)
by the 8th business day after month-end close. Month end is
determined by Microsoft's fiscal calendar. All reporting format and
content must comply with MERT specifications. MERT reports should
be submitted outlined in Exhibit J, the MERT REQUIREMENTS.
Microsoft should be notified when these have been submitted each
month. Sylvan submits monthly Sales Reporting of exams delivered to
report all dollars for the previous month's activity.
*Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 19
<PAGE>
21.1 MERT REPORTING
Sylvan will submit MERT Reporting per the MERT specifications by
the 8th business day of the month following fiscal month end.
Please refer to the MERT specification for format and content
details. Please refer to Exhibit M for a fiscal 2000 calendar.
21.2 MERT CAMPAIGN CODES
Sylvan will break out each campaign via MERT. Exhibit L, the MERT
CAMPAIGN CODES DOCUMENT WILL list the various campaign codes to be
used. As Microsoft creates additional promotions or discounts
additional campaign codes will be added. This report is due the
11th business day.
21.3 REVENUE REPORTING
Sylvan shall provide a monthly revenue report. The Revenue Report
should be completed as part of the monthly reports sent to
Microsoft via MERT, due the 8th business day. This report should
reflect the net-remit nature of the business, showing gross sales
by exam delivered to end customers as well as the total net remit
expense amount by exam to arrive at the contracted net-remit amount
by exam. (Please refer to EXHIBIT J, THE MERT REQUIREMENTS
document.)
21.4 EXPENSES REPORTING
Sylvan shall provide a monthly expense report for all exam delivery
costs plus any other contracted expenses that are not included in
the exam delivery price. The Expenses Report should be completed as
part of the monthly reports sent to Microsoft via EXHIBIT J, MERT
REQUIREMENTS document. This report is due the 8th business day.
21.5 FINANCIAL SUMMARY REPORT
Sylvan shall produce a report summarizing all activity, by country,
exam type, discount type. This report should begin with the premise
that all exams are priced at * and should reconcile all
discounts, fees and expenses in order to match the amount of the
wire transfer as shown in EXHIBIT F, the REPORTING MATRIX. This
report is also called the "Fin-Con" report and is due on the 10th
business day.
* Text omitted based upon request for confidential treatment.
Microsoft Confidential Page 20
<PAGE>
Exhibit A
22.0 List of Exhibits
EXHIBITS TITLE
A Sylvan Statement of Work
B Japan SOW
C Exam Program Guide
D Missing Exam Results
E Exam Import Export Format
F Reports Matrix
G Pricing Schedule
H MSS Sylvan Exam Brief
I Microsoft Voucher Policies
J MERT Requirements
K MERT Sample Report
L MERT Campaign Codes
M Microsoft Fiscal Calendar, FY00
N The Microsoft Corporation Agreement for Sylvan
Resources
0 NDA Agreement
P MCP Exam Performer Logo Usage Guidelines
R The Euro Brief
S The Master MPP
T The Master Sim MPP
U MS-Cert Phase-In Plan
Microsoft Confidential Page 21 05/12/99
<PAGE>
EXHIBIT B
JAPAN SOW ADDENDUM
OVERVIEW
This document is intended to outline the business requirements that are
unique to Japan and thus not represented in the current SYLVAN SOW. Some
requirements in this document may be listed as suggested business
practices; however, it is up to SYLVAN to determine the best practice for
their business. The requirements listed in this document should be
considered requirements beyond those defined in the SYLVAN SOW.
Call Center Overview
o SYLVAN shall provide MCP candidates with dedicated access to a SYLVAN
Regional Service Center.
o SYLVAN shall provide a fax line for faxed registration requests (at
minimum).
o SYLVAN shall conduct customer satisfaction surveys as described in
section 4.0 in Exhibit A.
o SYLVAN shall provide support in * (see registration
process below).
KPIs
KPIs defined in EXHIBIT A, THE SYLVAN STATEMENT OF WORK.
REGISTRATION PROCESS
SYLVAN must ensure that the candidate's information is correctly entered
into the database. Because of the difficulties of accurately capturing
candidate info via the phone, the candidate must be allowed to send a
written request to SYLVAN, either by fax, e-form or via the web. The
written registration request should also incorporate Kana as that practice
is considered the most successful. The candidate will then call the SYLVAN
Regional Service Center after the written request has been submitted to
confirm that the registration information is correct. SYLVAN will also
verify all information by either repeating or spelling back information to
the candidate while on the phone.
If the registration is made "on-site" or with Internet web registration
then the above does not apply, assuming that the candidate is present and
the registrar is confident of accurate spelling.
*
WEB REGISTRATION
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit B
A web registration site is required.
PAYMENT FORMS
1. Sylvan will make reasonable efforts to implement credit cards as a form
of payment.
2. Bank Transfers
3. Vouchers
It is up to SYLVAN's discretion whether to enhance this model and accept
other forms of payment.
CANCELLATION POLICY
CANDIDATE
SYLVAN will allow all MCP candidates the opportunity to cancel a
registration three business days (72hours) or more prior to the scheduled
appointment and offer the candidate a full refund if requested. If the
candidate does not cancel the registration three business days or more prior
to the scheduled appointment, the candidate will forfeit the exam funds (see
SYLVAN SOW regarding Forfeiture Procedures) It is up to the SYLVAN's
discretion to make exceptions regarding cancellations requested with less
than three business days advanced notice; however, SYLVAN will do so at
their own expense.
SYLVAN
If SYLVAN must cancel a candidate registration for any reason, SYLVAN will
notify candidate no later than one business day (24 hours) prior to
scheduled exam. In the event that SYLVAN cannot contact candidate prior to
cancellation, SYLVAN will make appropriate compensation to candidate,
perhaps in the form of a free exam at SYLVAN's expense.
DATA FEEDS
In light of the complexity of accommodating * in MSFT's
systems, SYLVAN shall send exam records daily to two distinct destinations
as listed below:
1. Exam records (see required fields above) in * shall be sent
to MS-Cert via the file feed process outlined in the Exhibit A, SYLVAN SOW.
2. Exam records * shall be sent to MSFT's * fulfillment
vendors * . Exam records are to be placed in an excel file, per
the sample attached as * . This file should be emailed to *
at * by close of business each day.
DATA INTEGRITY OF THE DATA FEED FORMAT (EXCEL
FILES)
*
Data Feed KPIs will remain the same as listed in the SYLVAN SOW.
ADDRESS CHANGES
Currently, * sends address changes to Sylvan to be made in
Sylvan's database. Until a formalized process is created SYLVAN will not be
responsible for address changes from * , however, MSFT will work
to create a process to accommodate this.
*Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit C
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit D
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit E
* Text omitted based upon request for confidential treatment.
<PAGE>
REPORT MATRIX Exhibit F
<TABLE>
<CAPTION>
<S> <C>
- ---------------------------------------------------------------------------------------------------------------------
TYPE
- ----
KPLS REPORT TITLE * * FREQUENCY * *
- ---------------------------------------------------------------------------------------------------------------------
Phone Service
Level * * Monthy * *
- ---------------------------------------------------------------------------------------------------------------------
Number of calls * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
# of Exams * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
Number of
Registrations * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
Exam Service
Level * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
* Text omitted based upon request for confidential treatment.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
- ---------------------------------------------------------------------------------------------------------------------
Exam Data Sent * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
VOUCHERS
- ---------------------------------------------------------------------------------------------------------------------
MS Sub Remit * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
MS Orders * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
Discount Usage * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
* * * * * *
- ---------------------------------------------------------------------------------------------------------------------
* * * * * *
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
* Text omitted based upon request for confidential treatment.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
- ---------------------------------------------------------------------------------------------------------------------
EXAM
DEV/
PUBLISHING
- ---------------------------------------------------------------------------------------------------------------------
# of exams
Published * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
CHANNEL
- ---------------------------------------------------------------------------------------------------------------------
* * * * * *
- ---------------------------------------------------------------------------------------------------------------------
Testing Center
Summary * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
FINANCE
- ---------------------------------------------------------------------------------------------------------------------
* * * * * *
- ---------------------------------------------------------------------------------------------------------------------
Finance Summary * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
Campaign Report * Monthly *
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
* Text omitted based upon request for confidential treatment.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
- ---------------------------------------------------------------------------------------------------------------------
OTHER
- ---------------------------------------------------------------------------------------------------------------------
Escalation Report
Summary * * Monthly * *
- ---------------------------------------------------------------------------------------------------------------------
Promotion Report * * TBD * *
- ---------------------------------------------------------------------------------------------------------------------
Customer Sat. * Monthly *
- ---------------------------------------------------------------------------------------------------------------------
Open
Issues/Actions Log * on-going *
- ---------------------------------------------------------------------------------------------------------------------
Monthly Status
report * monthly *
- ---------------------------------------------------------------------------------------------------------------------
Test Center
Adherence * * Quarterly * *
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit G
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit H
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit I
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit J
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit K
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit L
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit M
[Graphic of Microsoft Fiscal Calendar from July '99 to Jun '00 appears here]
<PAGE>
Exhibit N
MICROSOFT CORPORATION
AGREEMENT FOR VENDOR RESOURCES
(with Non-Disclosure Provisions)
This Agreement is made by and between MS CORPORATION ("MS"), a Washington
corporation, and the undersigned ("Vendor") and is effective upon Vendor
signature date. MS and Vendor agree as follows: A written contract with
Vendor must be executed prior to establishing an email account, network
access account, or issuing a card access key to the undersigned party.
1. EMAIL ACCOUNT and/or NETWORK ACCESS ACCOUNT.
If MS establishes an "email" or network access account for Vendor, the
vendor agrees to comply with all rules and restrictions MS imposes below:
MS will provide Vendor an account name and "password" for the email
account and/or network connectivity.
Vendor will change password from time to time to maintain security.
Vendor shall not disclose his/her current password to any other person or
entity, and agrees to immediately notify MS in the event of any
unauthorized disclosure of the same.
Vendor agrees to remain within the authorized capabilities of his/her
account. Any attempt to gain unauthorized access to another person's
corporate account or into any restricted area of the corporate network is
prohibited and will result in immediate termination of the email account
privileges.
Vendor's email and/or network account is granted strictly for the
benefit of doing business with MS and cannot be used for any other
purpose, such as to promote or solicit business for Vendor or for any
outside vendors. Email and any other data stored on or transmitted by
MS-owned equipment are MS property, shall not be removed by Vendor, and
may be accessed by MS at MS' sole discretion.
For the purposes of this section, "email account" shall include all means
of Microsoft WEB and Internet access.
MS RESERVES THE RIGHT TO TERMINATE VENDOR'S EMAIL and/or NETWORK ACCOUNT
PRIVILEGES AT ANY TIME, IN MS' SOLE DISCRETION.
2. CARDKEY ACCESS.
If MS provides a cardkey for Vendor, the vendor agrees to comply with all
rules and restrictions MS imposes as stipulated by Cardkey Access
guidelines for cardkey privileges listed below:
Vendor must have his/her cardkey in his/her possession at all times while
Vendor is at a MS facility. The cardkey is for use by Vendor only for
business conducted at MS and shall not be loaned to another person.
Lost cardkeys must be reported within twenty-four (24) hours.
Unless otherwise confirmed by the MS Manager, Vendor's cardkey access
shall be from 7:00 a.m. until 7:00 p.m. for Vendor's assigned building
Monday through Friday. Vendor's cardkey privileges shall expire at 7:00
p.m. on the final day of assignment.
Vendor's cardkey must be returned to the MS Manager upon Vendor's
separation from MS. A fee of Fifty Dollars (US$50.00) shall be assessed
to the MS department below for Vendor's
<PAGE>
cardkey if not returned within three (3) days of Vendor's separation
from MS or termination of Vendor's cardkey privileges, and such fee may
be passed through to Vendor.
Vendor grants MS permission to copy and circulate Vendor's cardkey
photograph to MS employees or agents at MS' discretion.
MS RESERVES THE RIGHT TO TERMINATE VENDOR'S CARDKEY PRIVILEGES AT ANY
TIME, IN MS' SOLE DISCRETION.
3. NONDISCLOSURE PROVISIONS.
In consideration of MS' grant of email privileges, external
network connectivity, and/or cardkey access, and the opportunity to
provide services to MS, Vendor agrees that, at all times during the term
of this Agreement and thereafter, Vendor expressly undertakes to retain
in strictest confidence and agrees not to use for any purpose other than
his/her work for MS, nor disclose to anyone outside of MS without the
express written authorization of an officer of MS, any confidential or
proprietary information of MS, including but not limited to: (a) data,
concepts, techniques, processes, designs, circuits, cost information,
computer programs, formulas, development or experimental work, work in
progress, and other technical know-how, financial, marketing and other
business information, or any other trade secrets of MS disclosed to
Vendor by MS or obtained by Vendor through observation or examination
of MS operations, customers or suppliers, including the identity of such
customers or suppliers; and (b) any information MS has received from
others that MS is obligated to treat as confidential or proprietary. If
Vendor has any questions as to what comprises such confidential or
proprietary information, Vendor agrees to consult with the MS
representative who has signed below. The information protected by this
paragraph includes all information and know-how transmitted to Vendor
by MS that MS has designated as proprietary and/or confidential or that,
by the nature of the circumstances surrounding the disclosure, ought in
good faith to be treated as proprietary and/or confidential. The
foregoing NDA provisions are in addition to any other NDA that has been
executed by the Vendor Company.
IN WITNESS WHEREOF, Vendor has executed the Agreement on 3/11, 1998
--------------
VENDOR: Vendor #
----------------------
/s/ Donald G. Hall Jr. 1000 Lancaster Street
----------------------------- ----------------------
Signature Address
Donald G. Hall Jr. Client Communications Baltimore, MD 21202
----------------------------- ----------------------
Print Name
Sylvan Prometric *
----------------------------- ----------------------
Employer (company name) MS * (print name)
NA /s/ *
----------------------------- ----------------------
Purchase Order MS * Signature
Relationship of Party to MS: Vendor OEM Independent
Contractor ---- -----
----
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit O
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
(STANDARD RECIPROCAL)
THIS AGREEMENT (the "Agreement") is made between MICROSOFT
CORPORATION, a Washington corporation, and Sylvan Learning Systems, Inc.
("COMPANY") and entered into this 16th day of February, 1998.
---- --------- --
In consideration of the mutual promises and covenants contained in
this Agreement, the mutual disclosure of confidential information to each
other, the parties hereto agree as follows:
1. Confidential Information and Confidential Materials
---------------------------------------------------
(a) "Confidential Information" means nonpublic information that
Disclosing Party designates as being confidential or which, under the
circumstances surrounding disclosure ought to be treated as confidential.
"Confidential Information" includes, without limitation, information
relating to released or unreleased Disclosing Party software or hardware
products, the marketing or promotion of any Disclosing Party product,
Disclosing Party's business policies or practices, and information received
from others that Disclosing Party is obligated to treat as confidential.
Confidential Information disclosed to Receiving Party by any Disclosing
Party Subsidiary and/or agents is covered by this Agreement.
(b) Confidential Information shall not include any information that:
(i) is or subsequently becomes publicly available without Receiving Party's
breach of any obligation owed Disclosing Party; (ii) became known to
Receiving Party prior to Disclosing Party's disclosure of such information
to Receiving Party; (iii) became known to Receiving Party from a source
other than Disclosing Party other than by the breach of an obligation of
confidentiality owed to Disclosing Party; or (iv) is independently
developed by Receiving Party.
(c) "Confidential Materials" shall mean all tangible materials
containing Confidential Information, including without limitation written
or printed documents and computer disks or tapes, whether machine or user
readable.
2. Restrictions
------------
(a) Receiving Party shall not disclose any Confidential Information to
third parties for five (5) years following the date of its disclosure by
Disclosing Party to Receiving Party, except to Receiving Party's
consultants as provided below. However, Receiving Party may disclose
Confidential Information in accordance with judicial or other governmental
order, provided Receiving Party shall give Disclosing Party reasonable
notice prior to such disclosure and shall comply with any applicable
protective order or equivalent.
(b) Receiving Party shall take reasonable security precautions, at
least as great as the precautions it takes to protect its own confidential
information, to keep confidential the Confidential Information. Receiving
Party may disclose Confidential Information or Confidential Material only
to Receiving Party's employees or consultants on a need-to-know basis.
Receiving Party will have executed or shall execute appropriate written
agreements with its employees and consultants sufficient to enable it to
comply with all the provisions of this Agreement.
(c) Confidential Information and Confidential Materials may be
disclosed, reproduced, summarized or distributed only in pursuance of
Receiving Party's business relationship with Disclosing Party, and only as
otherwise provided hereunder. Receiving Party agrees to segregate all such
Confidential Materials from the confidential materials of others in order
to prevent commingling.
(d) Receiving Party may not reverse engineer, decompile or disassemble
any software disclosed to Receiving Party.
3. Rights and Remedies
-------------------
(a) Receiving Party shall notify Disclosing Party immediately upon
discovery of any unauthorized use or disclosure of Confidential
Information and/or Confidential Materials, or any other breach of this
Agreement by
<PAGE>
Receiving Party, and will cooperate with Disclosing Party in every
reasonable way to help Disclosing Party regain possession of the
Confidential Information and/or Confidential Materials and prevent its
further unauthorized use.
(b) Receiving Party shall return all originals, copies, reproductions
and summaries of Confidential Information or Confidential Materials at
Disclosing Party's request, or at Disclosing Party's option, certify
destruction of the same.
(c) Receiving Party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure of Confidential Information
and that Disclosing Party shall be entitled, without waiving any other
rights or remedies, to such injunctive or equitable relief as may be
deemed proper by a court of competent jurisdiction.
(d) Disclosing Party may visit Receiving Party's premises, with
reasonable prior notice and during normal business hours, to review
Receiving Party's compliance with the terms of this Agreement.
4. Miscellaneous
-------------
(a) All Confidential Information and Confidential Materials are and
shall remain the property of Disclosing Party. By disclosing information to
Receiving Party, Disclosing Party does not grant any express or implied
right to Receiving Party to or under Disclosing Party patents, copyrights,
trademarks, or trade secret information.
(b) If either party provides pre-release software as Confidential
Information or Confidential Materials under this Agreement, such pre-
release software is provided "as is" without warranty of any kind.
Receiving Party agrees that neither Disclosing Party nor its suppliers
shall be liable for any damages whatsoever relating to Receiving Party's
use of such pre-release software.
(c) Any software and documentation provided under this Agreement is
provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of The Rights in Technical Data and Computer Software clause at
DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable.
Manufacturer is Microsoft Corporation/One Microsoft Way/Redmond, WA
98052-6399.
(d) Both parties agree that they do not intend nor will they, directly
or indirectly, export or re-export (i) any Confidential Information or
Confidential Materials, or (ii) any product (or any part thereof), process
or service that is the direct product of the Confidential Information or
Materials to (A) any country that is subject to U.S. export restrictions
(currently including, but not necessarily limited to, Iran, Iraq, Syria,
Cuba, North Korea, Libya, and Sudan), or to any national of any such
country, wherever located, who intends to transmit or transport the
products back to such country; (B) to any end-user who either party knows
or has reason to know will utilize them in the design, development or
production of nuclear, chemical or biological weapons; or (C) to any
end-user who has been prohibited from participating in U.S. export
transactions by any federal agency of the U.S. government.
(e) The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or acquire
products without use of the other party's Confidential Information.
Further, either party shall be free to use for any purpose the residuals
resulting from access to or work with such Confidential Information,
provided that such party shall maintain the confidentiality of the
Confidential Information as provided herein. The term "residuals" means
information in non-tangible form, which may be retained by persons who
have had access to the Confidential Information, including ideas, concepts,
know-how or techniques contained therein. Neither party shall have any
obligation to limit or restrict the assignment of such persons or to pay
royalties for any work resulting from the use of residuals. However, the
foregoing shall not be deemed to grant to either party a license under the
other party's copyrights or patents.
(f) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. It shall not be modified except
by a written agreement dated subsequent to the date of this Agreement and
signed by both parties. None of the provisions of this Agreement shall be
deemed to have been waived by any act or acquiescence on the part of
Disclosing Party, its agents, or employees, but only by an instrument in
writing signed by
<PAGE>
an authorized officer of Disclosing Party. No waiver of any provision of
this Agreement shall constitute a waiver of any other provision(s) or of
the same provision on another occasion.
(g) If either party employs attorneys to enforce any rights arising out
of or relating to this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees. This Agreement shall be construed and
controlled by the laws of the State of Washington, and both parties further
consent to jurisdiction by the state and federal courts sitting in the
State of Washington. Process may be served on either party by U.S. Mail,
postage prepaid, certified or registered, return receipt requested, or by
such other method as is authorized by the Washington Long Arm Statute.
(h) Subject to the limitations set forth in this Agreement, this
Agreement will inure to the benefit of and be binding upon the parties,
their successors and assigns.
(i) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect.
(j) All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
5. Suggestions and Feedback
------------------------
Either party may from time to time provide suggestions, comments or other
feedback to the other party with respect to Confidential Information
provided originally by the other party (hereinafter "Feedback"). Both
parties agree that all Feedback is and shall be entirely voluntary and
shall not, absent separate agreement, create any confidentiality obligation
for the Receiving Party. However, the Receiving Party shall not disclose
the source of any feedback without the providing party's consent. Feedback
shall be clearly designated as such and, except as otherwise provided
herein, each party shall be free to disclose and use such Feedback as it
sees fit, entirely without obligation of any kind to the other party. The
foregoing shall not, however, affect either party's obligations hereunder
with respect to Confidential Information of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
COMPANY: Sylvan Learning Systems,Inc. MICROSOFT CORPORATION
-----------------------------
Address: 1000 Lancaster St. By: /s/ *
-------------------------- ---------------------------
Baltimore, MD 21202 Name: *
---------------------------------- -------------------------
By: Steve Hoffman Title: *
------------------------------- ------------------------
Name: Date: 8-27-98
----------------------------- -------------------------
Title: MS Contact:
---------------------------- -------------------
Date: 8/25/98
-----------------------------
* Text omitted based upon request for confidential treatment.
1/15/97 LE911420.028
<PAGE>
EXHIBIT P
GUIDELINES FOR USING THE MICROSOFT CERTIFIED PROFESSIONAL
EXAM PROVIDER LOGO
MISCROSOFT CERTIFIED
PROFESSIONAL
EXAM PROVIDER
o You must sign the Exam Services Agreement before using the Logo.
o You may only use the Logo on your Web site, marketing material, and
letterhead to indicate that you provide exams for the Microsoft
Certified Professional program.
o Microsoft will provide you with electronic or camera ready artwork of
the Logo. You may not alter this artwork in any way.
o The Logo may not be translated of otherwise localized into any other
language. Any localized versions of the Logo must be provided by
Microsoft.
o You may not display the Logo in a manner that suggests that the Logo
is a part of your company or service name.
o Your trade name or company name must appear on any materials where the
Logo is used. The Logo cannot appear larger than or more prominent
than your name, trademark, logo or trade name.
o The Logo may not be used in any manner that expresses or might imply
Microsoft's affiliation, sponsorship, endorsement, certification, or
approval; other than as set forth by the Exam Services Agreement.
o The Logo, or any elements thereof, may not be included in your trade
or business name, domain name, product or service name, logo, trade
dress, design, slogan, or other trademarks.
o You may not combine the Logo with any other object, including, but not
limited to, other logos, icons, words, graphics, photos, slogans,
numbers, design features, symbols or Web site audio files.
o The Logo may not be imitated or used as a design feature in any of
your materials or on your Web site.
o The Logo shall be attributed to Microsoft Corporation in all materials
where it is used, with the following attribution clause: "Microsoft is a
registered trademark of Microsoft Corporation in the United States and
other countries."
o You may not use the Logo in any way other than as specified in these
guidelines.
SPACING
The Logo must stand alone. A minimum amount of space must be left between
the Logo and any other object such as type, other logos, photography,
borders, edges, and so on. The required border or empty space around the
Logo must be x wide, where x equals the height of the graphic, as
represented by the height of the box which contains the words "Microsoft
Certified".
MINIMUM SIZE
You should take care of maintain the integrity of all elements of the
Logo. For example, the logotype and trademark notations must be readable;
in no case should the Logo appear at such a small size that these
conditions are not met. The minimum acceptable size for the Logos is 1
inch (2.54cm) in length.
COLOR
The Microsoft Certified Professional Exam Provider Logo can appear in two
colors or in black and white.
Miscrosoft is a registered trademark of Miscrosoft Corporation in the
United States and other countries.
-------------------------------------------------------------------------
<PAGE>
Exhibit R
NAME: PRICING IN THE EURO
REVISION # REVISION DATE DESCRIPTION OF REVISION(S)
1.0
SIGNATURES:
Vendor: * Marketing:
------------------------------ -----------------
Signature: Signature:
------------------------------ -----------------
Date: Date:
------------------------------ ----------------------
VAM: *
------------------------------
Signature:
------------------------------
Date:
------------------------------
* Text omitted based upon request for confidential treatment.
<PAGE>
Microsoft Memo
TO: *
FROM: *
DATE: 11/3/98
SUBJECT: Euro Pricing
CC: *
-----------------------------------------------------------------------
PROGRAM OVERVIEW:
Beginning 1/1/99 the EMU will work toward replacing national currencies
with one common currency, the Euro. This date marks the beginning of the
Single Monetary Policy and exchange rates will be locked, but National
currencies will remain in circulation until June 30, 2002. In line with
this strategy, MCP exams will be priced in the Euro beginning 1/l/99.
COUNTRIES IN THE EURO ZONE (AS OF 11/3/98)
Austria Italy
Belgium Luxembourg
Finland Netherlands
France Portugal
Germany Spain
Ireland
MCP EXAM PRICE
--------------
MCP Exam prices should be set at $ * US equivalent using the
conversion rate set at the end of the day on 1/1/99.
ESP RESPONSIBILITIES
o Price, invoice and receive payment from MCP customers in the Euro (all
other financial requirements to remain the same as described in the
Statement of Work).
o CSRs should be able to quote MCP & MSS exam prices in both Euro and the
National Currency.
o Complete the attached Euro survey and return to the VAM by 11/23/98.
o The ESPs must price all MCP exams within the Euro Zone (see list
above).
o Notify MSFT immediately if there are any concerns with honoring our
request to price MCP exams in the Euro.
PRICE LIST
Price List for Euro-zone countries is attached at the end of this document.
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit S
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit T
*
* Text omitted based upon request for confidential treatment.
<PAGE>
Exhibit U
Ms-Cert Phase-In Plan
---------------------
Overview
--------
In order to ensure a high level of customer satisfaction, Microsoft and
Sylvan will work together to integrate MS Cert (Candidate Manager module)
in Sylvan Call Centers for use by Sylvan Customer Service Representatives.
One purpose of the integration of MS Cert is to eliminate potential
duplicate records in the Microsoft Certification database. In an effort to
avoid creating duplicate records, the CSR's will look up a candidate's
MCPID using Candidate Manager if a candidate has not tested before with
SYLVAN. If an MCPID is found for the candidate that MCPID will be inserted
into a custom demographic field during the registration. Sylvan intends to
integrate MS Cert into its registration technology and procedures in
accordance with the requirements of this Exhibit U.
This integration effort may require substantial investment on the part of
Sylvan and Microsoft prior to launch, both financially and in the time and
effort necessary to integrate the technology and to train Sylvan's
personnel in its use. Without further analysis, Sylvan and Microsoft are
unable to fully estimate the impact of MS Cert integration. The parties
recognize, however, that there is great potential benefit of the integrated
MS Cert and Sylvan systems to Microsoft when the effort is completed.
Sylvan and Microsoft agree to the following technology phase-in plan unless
a plan which is even more beneficial is mutually agreed on:
Phase-In Plan
-------------
*
* Text omitted based upon request for confidential treatment.
