EXHIBIT 10.13
Distribution Partnership Agreement
This Distribution Partnership Agreement ("Agreement") is entered into as of
December 13, 1998 between Avert, Inc. ("AVERT,") a Colorado Corporation with its
principal place of business at 000 Xxxxxxxxx Xxxxxx - Xxxx Xxxxxxx, XX 00000,
and Xxxxxxxx & Struggles, Inc. ("Heidrick,") a Delaware Corporation with its
principal place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX.
00000-0000.
1. Nature of Agreement
1.1 AVERT is engaged in the business of developing services and software
products to assist corporations and staffing companies perform pre-employment
screening.
1.2 Heidrick is engaged in executive recruiting.
1.3 The parties propose entering into an Agreement concerning the development of
an Internet based pre-employment screening and recruiting service. The parties
will seek to develop technology and relationships with constituencies of
candidates for placement within companies.
1.4 Heidrick will offer Avert Inc. pre-employment screening services to clients
as part of its Internet offering currently referred to as the Xxxxxxxx &
Struggles Internet Recruiting Venture (H&S XXX). Avert products and services
shall be priced to Heidrick clients in such a way as to be imbedded in overall
H&S XXX pricing or consistent with the Avert volume discount schedule.
2. Service Level
2.1 H&S XXX will offer pre-employment services in such a xxxxx to identify Avert
as the information provider and key contact for customer service issues.
2.2 Avert will provide products and services to Heidrick clients with equivalent
quality and service levels as provided to similar Avert direct customers.
2.3 Avert will provide services for H&S XXX client applicants equivilant to
those provided to its direct customers.
3. Administration Fee
3.1 Heidrick will pay Avert Inc. a $1,000 per year Administration Fee for each
H&S XXX client eligible to use Avert pre-employment services. The fee shall be
calculated and billable upon customer set up for Avert services and on
subsequent anniversary dates of account set up.
3.2 Eligible Heidrick H&S XXX clients shall receive services to include,
multiple site account administration, AvertAssure national implementation
services, unlimited First Checks, assistance with product and service bundling
specific to individual Heidrick client requirements and two years of archival
services for all reports ordered from Avert as an H&S XXX client.
4. Revenue Sharing
4.1 All Avert product and services revenue over and above the Administration Fee
will be shared between Avert Inc. and Heidrick. Avert shall xxxx Xxxxxxxx an
amount equivalent to 60% of the then current list price for products and
services included in the attached schedule. Avert will provide a minimum of 30
days notice of any changes in prices by amending the price schedule.
4.2 Products and service invoices will be prepared monthly and terms for payment
are net 45.
5. Term
5.1 The term of this agreement shall be two years from date of execution by both
parties and shall automatically renew annually if not terminated by either party
30 days prior to the anniversary date of the agreement.
5.2 During the initial term of this agreement and any automatic extensions
either party may cancel this agreement for convienience with 120 days prior
written notice.
6. Exclusivity
6.1 Avert agrees not to enter into similar agreements, during the term of this
agreement, with any third parties engaged in executive search that are the same
as, or functionally equivalent to Heidrick. Specifically, Avert shall not engage
in discussions with Korn Ferry, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, XXX, or Xxxx
Xxxxxx.
6.2 Heidrick agrees not to enter into similar agreements, during the term of
this agreement, with companies directly competitive to Avert that provide
similar products, services and on-line software systems.
7. Confidentiality
7.1 Unless required by law, each party, along with its affiliates, agents and
employees (collectively "Recipient") agrees that without the consent of the
other party in writing it will not disclose to any third party, or use any
information (I) contained in a document (on paper or in electronic form) marked
confidential, (II) disclosed orally and identified at the time of disclosure as
confidential or subsequently identified in writing as confidential by the
disclosing party, and (III) concerning the nature of this agreement between the
parties (collectively "Confidential Information"), unless mutually agreed to in
writing by the parties for such purposes as press releases and other marketing
activities.
7.2 The Recipient's obligation under this section of the agreement will exist
for a 5-year period commencing from the date of receipt. Recipient will use the
same care and discretion that the Recipient employs to protect its own
information and products that it does not want disclosed.
7.3 "Confidential Information" will not include information that (I) is in or
enters the public domain without breach of this Agreement by Recipient; (II)
Recipient lawfully receives from a third party without restriction on disclosure
and without breach of a non disclosure obligation; (III) Recipient develops
independently, which it can prove with written evidence. Notwithstanding the
foregoing, recipient will not disclose or release any software products or
documentation disclosed by the other party to any third party during or after
the term of this Agreement without the written consent of the disclosing party.
7.4 Any copies of the Confidential Information should be marked and treated as
such or if verbally conveyed, each party shall notify the other of its
confidential nature prior to disclosure.
7.5 If a Final Agreement has not been executed, then upon termination of this
Agreement, the parties agree to return the other's Confidential Information,
including all copies, upon request.
7.6 The parties agree to use their best efforts to avoid disclosure of the fact
or object of their negotiations and to restrict all internal communications
concerning the negotiations to those recipients to whom such information must be
disclosed in order to effectively conduct the negotiations. Except as otherwise
required by law, the parties agree not to issue any press releases or make any
public announcements regarding the negotiations without the prior written
approval of the other.
7.7 Despite any captions, headings, or restrictions regarding proprietary
matters or any nondisclosure notices or policy statements contained in the
Confidential Information, this Section 6 constitutes the sole and exclusive
Agreement of the parties concerning the Confidential Information and any
information exchanged or disclosed in connection with the negotiations.
8 Product Development
8.1 Heidrick agrees to use its best efforts to design, develop, market and
maintain an internet solution (H&S XXX) for clients to implement a recruiting
system consistent with the process flow diagram included as Exhibit A in this
agreement. Heidrick in its sole discretion will determine the timing and
availability of its internet solution to its clients.
8.2 Avert agrees to use its best efforts to develop and maintain a seamless
interface to the Heidrick H&S XXX system to enable access to Avert
pre-employment screening services.
8.3 Avert agrees to use its best efforts to update its interface to coincide
with Heidrick H&S XXX product releases as long as the interface protocols remain
standard with industry open architecture and as long as Heidrick does not
initiate more than two major product releases per year. Heidrick will
communicate its specifications for changes to the interface 120 days in advance
of the scheduled release date and Avert will respond 90 days in advance of the
scheduled release date if it is unable to meet specifications.
8.4 Avert agrees to provide for fee quotations for services required outside of
the terms of this agreement but related to the H&S XXX project.
9 Marketing
9.1 Heidrick agrees to use its best efforts to promote and sell the H&S XXX
system. The marketing & sales promotion plan shall be communicated to Avert on a
regular basis, with sufficient lead time, to allow Avert to coordinate sales and
marketing assistance.
9.2 Avert agrees to support the Heidrick marketing plan with marketing
communications support, sales training support and on site sales support during
the Beta program.
9.3 Avert agrees to quote additional sales support assistance on a fee basis for
sales support following the Beta program.
10 Compliance with State and Federal Statutes
10.1 Heidrick agrees to include terms and conditions for H&S XXX clients that is
substantially similar to the terms and conditions of the Avert User Agreement
included as an attachment to this agreement.
10.2 Heidrick agrees to insure that all transactions submitted by the H&S XXX
system can be identified and attributed to a particular authorized H&S XXX
client.
10.3 Avert Inc. agrees to conduct its business to be in compliance with the
provisions of the Fair Credit Reporting Act and with any applicable State and
Federal regulations.
11 Indemnification
11.1 Heidrick agrees to indemnify and hold harmless Avert Inc. for all legal
actions arising from Heidrick not being compliant with the Fair Credit reporting
Act.
11.2 Avert agrees to indemnify and hold harmless Heidrick for all legal actions
arising from Avert not being compliant with the Fair Credit Reporting Act.
12 Limitation of Liability
12.1 Neither party shall make a claim against, or be liable to, the other party
or its affiliates or agents for any damages, including, without limitation, lost
profits or injury to business reputation, resulting from the continuation or
abandonment of negotiations and the consequences of such continuation or
abandonment of negotiations. Neither party shall make a claim against, or be
liable to, the other party or its affiliates or agents for any special,
incidental, or consequential damages, including, without limitation, lost
profits, based on any breach, default, or negligence of such other party, its
affiliates, or agents with respect to this Agreement.
13 Equitable Relief
13.1 Each party acknowledges and agrees that, if there is any breach of this
Agreement, including, without limitation, unauthorized use or disclosure of
Confidential Information or other information of the other party, the
non-breaching party will suffer irreparable injury that may not be compensated
by money damages and therefore may not have an adequate remedy at law.
Accordingly, if either party institutes an action or proceeding to enforce the
provisions of this Agreement, such party may be entitled to obtain such
injunctive relief, specific performance, or other equitable remedy from a court
of competent jurisdiction as may be necessary or appropriate to prevent or
curtail any such breach, threatened or actual. These will be in addition to and
without prejudice to such other rights as such party may have in law or in
equity.
14 Entire Agreement
14.1 The parties acknowledge that this Agreement expresses their entire
understanding and Agreement, and that there have been no warranties,
representations, covenants or understandings made by either party to the other
except such as are expressly set forth in this section. The parties further
acknowledge that this Agreement supersedes, terminates and otherwise renders
null and void any and all prior Agreements or contracts whether written or oral,
entered into between AVERT and Heidrick with respect to the matters expressly
set forth in this Agreement.
15 Notification & Contract Administration.
15.1 All notices hereunder shall be in writing and shall be delivered to the
attention of a party's designated contact, with a copy to its president, at the
address set forth on the first page of this Agreement, or to such other person
or address as shall have been provided by notice hereunder. The contacts
initially designated are:
Heidrick: Xxxxxxx X. Xxxxxx & H&S General Council
Avert Inc. Xxxxxxx X. Xxxx
16 Assignability
16.1 Except as expressly provided herein, a party's rights and obligations under
this agreement are not assignable other than to its parent or subsidiary or a
successor to substantially all of its business.
17 Jurisdiction
17.1 This agreement shall be governed by and construed in accordance with the
laws of Colorado.
We have carefully reviewed this contract and agree to and accept its terms
and conditions. We are executing this Agreement as of the day and year first
written above.
AVERT, Inc.: Xxxxxxxx & Struggles, Inc.:
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By:____________________________ By:________________________
Name:__________________________ Name: _____________________
Title:_________________________ Title: ____________________
Exhibit A
H&S XXX Process Diagram
Avert Product & Services List Price and Volume Discount Schedule
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