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XXXXXXX NETWORX INC.
TALFINDER LICENSE
AGREEMENT
BETWEEN
XXXXXXX NETWORX INC., a corporation duly incorporated pursuant to the laws
of the Province of Alberta; ("Licensor")
AND
XXXXXXX PUBLICATIONS LTD. a corporation duly incorporated pursuant to the
laws of Canada ("Licensee")
(Collectively referred to as the "Parties")
WHEREAS the Licensor has developed a web-based application, which provides the
functionality of a career portal or job board ("Job Board") and which allows
employers to electronically match optimal candidates and job opportunities. In
connection with the operation of such Job Board, the Licensor has established
and developed software, websites, templates for the creation of candidate
profiles and employer job opportunities, business methods, documentation,
trademarks and other intellectual property and confidential information, all of
which are herein defined as ("TalFinder" or the "Software"), and which performs
substantially the functionality exemplified at xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxxx.
WHEREAS the Licensor is the owner of all rights in and to TalFinder throughout
the world, together with all goodwill connected therewith.
WHEREAS the Licensor offers to the Licensee the right to utilize TalFinder for
the purposes of creating a Job Board for the Hospitality and Food Services
sectors ("xxx Xxxxxx") in the Canadian and United States markets ("xxx Xxxxxx").
Such rights will be subject to the terms and conditions contained herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants contained herein, and other considerations, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows:
1) RESPONSIBILITIES OF THE LICENSOR
a) On an ongoing basis, the Licensor shall provide to the Licensee
access to TalFinder to enable the Licensee to operate the Job Board
in the Region for the Sector.
b) Access to any and all upgrades, modifications or interim maintenance
release versions of TalFinder. Any such upgrades, modifications or
interim maintenance release versions of TalFinder, to which the
Licensee is provided access, shall be subject to the terms,
conditions and obligations of this Agreement.
c) Provide the Licensee with all user and instruction manuals developed
by the Licensor for the TalFinder application.
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d) Provide hosting facilities for the Job Board, with a tier one
hosting facility. A tier one hosting facility would include AT&T and
WorldCom.
e) For the first six months from the date that a Job Board is available
to candidates to create profiles, the Licensor will provide all
online help and customer service requirements.
f) The Licensor will provide and implement all initial design elements
required to adapt TalFinder to reflect the Licensee's brand and to
incorporate the name and positioning of the Job Board.
g) Licensor will provide Licensee with such training on the operation
of TalFinder as Licensee may reasonably require.
h) Licensor will assist Licensee in the development of sales kits and
user training materials.
i) Licensor will be responsible for ensuring that the Job Board is
registered and or posted on relevant Internet directories, search
engines, and similar Internet marketing opportunities.
j) Licensor will assist Licensee in direct sales and presentations to
potential employer users.
k) Licensor will assist Licensee in developing alliances and
partnerships with industry specific associations, universities,
colleges and such other organizations as Licensee may determine.
2) RESPONSIBILITIES OF THE LICENSEE
a) The Licensee will actively promote the Job Board in all their
publications in the Sector.
b) After the initial period as outlined in 1E) above, the Licensee will
be responsible for all customer service and online help
requirements.
c) Editorial content that the Licensee wishes to include in the Job
Board will be provided by the Licensee.
d) Licensee will pay to Licensor the License Fees as outlined in
Schedule A, attached.
3) EXCLUSIVITY
a) Provided Licensee is in compliance with all the terms and conditions
of this Agreement, Licensee will have the exclusive right to operate
a Job Board using TalFinder for the Sector in the Region. In that
regard, Xxxxxxx will not license TalFinder to any entity that
competes with the Licensee in the Sector in the Region, in providing
Job Board services.
b) Nothing contained in 3A) above will preclude the Licensor from
providing its services to business entities in the Sector that wish
to use the technologies inherent in TalFinder to enhance the career
sections of their websites related to their own operations. In the
event that the Licensee introduces the Licensor to a business entity
and as a result of such introduction, the Licensor enters into a
licensee agreement or sale agreement with such business entity, the
Licensee will receive a referral fee as outlined in schedule B
attached.
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4) INFORMATION AND DATA
a) All URL's, Job Board names, brand names, copyright, trademarks and
other intellectual property used by the Licensee in the operation of
TalFinder are and will remain the exclusive property of the
Licensee. Licensee will retain all rights, title and interest to
such URL's, names and property.
b) All information and data making up the role or job templates within
TalFinder is the exclusive property of the Licensor and will not be
reproduced or otherwise modified other than as required for the
normal operations of TalFinder as contemplated under this agreement.
c) All data entered into TalFinder by candidates, employers or other
users of TalFinder will be the exclusive property of the Licensee
and will not be reproduced or used by the Licensor for any purposes
other than as envisaged for the normal operation of TalFinder.
5) UPGRADES/INTERIM MAINTENANCE RELEASES
The Licensor shall provide to the Licensee at no further cost, access to
any and all upgrades, modifications or interim maintenance release
versions of TalFinder. Any such upgrades, modifications or interim
maintenance release versions of TalFinder, to which the Licensee is
provided access, shall be subject to the terms, conditions and obligations
of this Agreement.
6) CONFIDENTIALITY
a) The Licensor and its representatives shall keep confidential all
information provided to the Licensor by the Licensee or to which the
Licensor becomes aware through or as a result of the operation of
TalFinder and shall not disclose same to any person unless otherwise
required by law or as required by a court of competent jurisdiction.
b) The Licensee and its representatives shall keep confidential all
information provided to the Licensee by the Licensor or to which the
Licensee becomes aware through or as a result of the operation of
TalFinder and shall not disclose same to any person unless otherwise
required by law or as required by a court of competent jurisdiction.
7) TERM OF THE AGREEMENT AND TERMINATION
a) The initial term of the Agreement will be 12 months from the date of
this Agreement (the Anniversary Date) and will automatically renew
on each Anniversary Date for a further 12-month period on the same
terms and conditions.
b) After the initial term of the Agreement, either party may terminate
the Agreement by giving six months notice in writing to the other
party, of such termination.
8) ESCROW OF TALFINDER
a) The Licensor will provide a copy of TalFinder to be held in escrow
("the Escrowed TalFinder"), by the Licensee's external legal
counsel, only to be used and subject to the conditions as provided
in the Agreement, in the event that the Licensor is adjudged a
bankrupt under the Bankruptcy and Insolvency Act (Canada).
b) The Escrowed TalFinder will only be used for the operation of the
Job Board and will not be made available to any other party for any
purpose.
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9) SEVERABILITY
All sections, terms and provisions of this Agreement are severable and the
unenforceability or invalidity of any of these parts of this Agreement
shall not affect the validity or enforceability of any other part of this
Agreement. If any court of competent jurisdiction determines that any
provision in this Agreement is invalid or unenforceable, it is the
intention of the parties that the court either partially enforces such
provision to the extent enforceable or modifies such provision so as to
render it valid or enforceable.
10) INDEPENDENT CONTRACTORS
The Licensor and the Licensee are independent contractors, each being in
full control of its own business. This Agreement does not establish a
joint venture or partnership between the Licensor and Licensee. Neither
party is the agent of the other and neither has the authority to bind the
other in respect of any third party. The Licensee will under no
circumstances hold itself out to be a partner, employee, franchisee, legal
representative, servant or agent of the Licensor.
11) NOTICES
All required notices, or notices which may be provided in accordance with
this Agreement, shall be in writing and shall be duly provided for if the
notice is remitted to its addresees by courier, registered mail or
facsimile, to the address below:
In the case of the Licensor:
Xxxxxxx Networx Inc.
000 Xxxxxxxx Xxxxxx Xxxxx Xxxx
Xxxxx 000 Xxxxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Attention: Xxxx Xxxxxxxxxx
Fax: 000 000 0000
In the case of the Licensee:
Xxxxxxx Publications Ltd.
00 Xxxxxxx Xxxx
Xxxxx 000 Xxx Xxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxx
Fax: 000 000 0000
12) ASSIGNMENT
This Agreement shall enure to the benefit of and be binding upon the
successors and permitted assigns of the Parties. Neither party shall
assign or transfer this Agreement in whole or in part without the prior
written consent of the other party, except that with written notice to
Licensee, Licensor shall have the right to assign or transfer this
Agreement to a company which Licensor controls, is controlled by, or is
under the common control with.
13) FORCE MAJEURE
Neither Party shall be liable for any delay or failure in the performance
of any part of this Agreement if such delay or failure arises from any
cause beyond the Party's reasonable control, including, but
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not limited to; fires, strikes, insurrections, riots, embargoes, shortages
in supplies, delays in transportation, or requirements of any governmental
authority. The obligations under this Agreement shall be suspended to the
extent made necessary by such event of force majeure, provided that the
Party whose performance fails or is delayed shall give immediate notice to
the other Party of the event of force majeure and provided that the
disabling effect of such event of force majeure shall be eliminated as
soon as reasonably possible.
14) INDEMNIFICATION
Each Party hereby indemnifies and holds harmless the other Party, its
partners, directors, officers, employees, agents and assignees from and
against any liability for any claims arising out of the performance or
non-performance by the indemnifying Party of its duties or the exercise of
its rights pursuant to this Agreement. This indemnity shall continue in
effect notwithstanding the expiry or termination of this Agreement.
15) GOVERNING LAW
This Agreement shall be interpreted under and governed by the laws of the
Province of Ontario and the applicable federal laws of Canada, without
reference to any conflicts of laws principles. The parties hereby attorn
to the non-exclusive jurisdiction of the Ontario Courts.
16) LIMITATION OF LIABILITY
LIMITATION OF REMEDIES AND DAMAGES. IN NO EVENT WILL LICENSOR, ITS
SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR
AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER
FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND
EVEN IF LICENSOR OR LICENSOR'S REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. LICENSOR'S CUMULATIVE LIABILITY FOR DAMAGES
FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL
BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO LICENSOR FOR THE
SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST
LICENSOR LATER THAN ONE YEAR FROM THE TERMINATION OF THIS AGREEMENT
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This Agreement made as of this 21st day of April 2003
Signed:
XXXXXXX NETWORX INC. XXXXXXX PUBLICATIONS LTD.
/s/ /s/
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TITLE TITLE
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DATE DATE
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SCHEDULE A
IMPLEMENTATION AND LICENSE FEES
a) The Licensee will pay the Licensor a one time Implementation fee
equal to $4,000.00 (four thousand dollars).
b) The Licensee will pay the Licensor a License Fee equal to 15%
(fifteen percent) of the monthly gross sales revenues generated by
the Licensee from the operation of the Job Board using TalFinder.
c) License Fees will be calculated on a monthly basis and paid to the
Licensor 30 days after the end of the month.
d) The Implementation Fee is payable 10 days from the date of this
agreement.
e) The License Fees will be payable from the date that TalFinder is
available to allow candidates to create candidate profiles on the
Job Board.
TRAVEL EXPENSES
In the event that the Licensor incurs travel expenses as a result of its efforts
as contemplated in sections 1J) and 1K) of this agreement, the Licensee will
reimburse the Licensor for such expenses as have been pre-approved by the
Licensee. Travel expenses are defined as airline ticket, car rental, taxi and
accommodation costs.
PRICING
All pricing arrangements including promotional pricing will be determined by the
Licensee.
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SCHEDULE B
LICENSEE REFERRAL FEES
In the event that the Licensee introduces the Licensor to a business
entity and as a result of such introduction, the Licensor enters into a
licensee agreement or sale agreement with such business entity for any of
the applications or products marketed by the Licensor, the Licensee will
receive a referral fee as follows:
a) A referral fee equal to 20% (twenty percent) of the first year's
revenues generated by the Licensor from such license agreement or
sale agreement.
b) A referral fee equal to 15% (fifteen percent) of the second year's
revenues generated by the Licensor from such license agreement or
sale agreement.
c) A referral fee equal to 10% (fifteen percent) of the third and
subsequent year's revenues generated by the Licensor from such
license agreement or sale agreement.
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