SERVICE AGREEMENT
THIS AGREEMENT is made as of the 23rd day of February 1999.
BETWEEN:
Positionwatch Limited, a corporation incorporated
under the laws of Ontario
(hereinafter referred to as "PW")
AND:
X-Xxxxxxx.xxx Inc., a corporation incorporated under the
laws of Ontario
(hereinafter referred to as "ECT")
WHEREAS:
A. PW has developed internet job posting and recruitment advertising
services;
B. ECI has developed internet recruiting software and wishes to engage
the services of PW for its internet job posting and advertising
services;
NOW THEREFORE in consideration of the premises and the mutual covenants
herein and other good and valuable consideration (the receipt and sufficiency of
which is hereby acknowledged by each of the parties) the parties hereto covenant
and agree as follows.
This agreement replaces and supercedes the prior agreement, signed and
dated May 5th, 1998, between PW and CareerBridge Corporation (now named
X-Xxxxxxx.xxx Inc). This agreement does not in any way affect
current non-disclosure and confidentiality agreements already in place between
both Parties.
1. DEFINITIONS
In this Agreement:
1.1 "Affiliate" of a specified entity means any entity which directly
or indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with, such specified entity.
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1.2 "Agreement" means this service agreement and all instruments
supplemental hereto or in amendment or confirmation hereof; "hereof",
"hereto" and "hereunder" and similar expressions mean and refer to this
Agreement.
1.3 "Business Day" means any day, other than a Saturday, Sunday or
statutory or civic holiday in the city of Toronto or Ottawa, in the
province of Ontario.
1.4 "Confidential Information" means all information relating to the
business and management of either Party or its Affiliates including,
but not limited to the material terms of this Agreement, sales, product
pricing and other unpublished financial information, products and
business plans, projections and marketing data and other proprietary
and trade secrets and technology to which access is obtained hereunder
by the other Party, provided, however, that confidential information
shall not include any data or information which:
1.4.1 is or becomes publicly available through no fault of the
other Party;
1.4.2 is already in the rightful possession of the other Party
prior to its receipt from the other Party;
1.4.3 is independently developed by the other Party;
1.4.4 is rightfully obtained by the other Party from a third
party;
1.4.5 is disclosed with the written consent of the Party whose
information it is; or
1.4.6 is disclosed pursuant to court order or other legal
compulsion.
1.5 "Parties" means each of PW and ECI and "Party" means either of
them;
1.6 "Person" includes any individual, corporation, partnership, joint
venture, trust, unincorporated organization or any other judicial
entity recognized by law;
1.7 "PW Partner Sites" means and includes all web based employment
sites, employment news groups, search engines, directories and other
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web sites with which PW has established a relationship(s) for the
purpose of creating exposure for PW client job openings;
1.8 "Sales Channel Representatives" means third party sales
representatives, resellers, distributors and telemarketing partners;
1.9 "Services" means the services to be performed by PW as more
particularly described in paragraph 3 hereof;
2. SCHEDULES
2.1 The following appending schedules form part of this Agreement;
Schedule A - ECI Sales Targets Schedule
Schedule B - Fees and Payment Schedule
3. PROVISION OF SERVICES BY PW
3.1 Subject to the terms and conditions of this Agreement, PW agrees to
provide the following services to ECI:
3.1.1 Network Posting: As of the date of this Agreement, PW
shall provide an intelligent multi-site network
posting/advertising capability to ECI for individual job
postings of ECI's customers or the customers of its
Affiliates on PW Partner Sites. PW will make all commercially
reasonable efforts to expand and maintain the list of PW
Partner Sites on an ongoing basis, servicing the requirements
of ECI. PW does not warrant that any site will remain as
part of the posting package for any length of time. PW will
make every commercially reasonable effort to provide a
substitute site of equivalent value should a site be removed
from a posting package for any reason.
3.1.2 Site-Specific Posting: PW will make all commercially
reasonable efforts to expand and maintain the list of
site-specific PW Partner Sites on an ongoing basis, servicing
the requirements of ECI.
3.1.3 Transparent Posting On or before April 30, 1999, PW
shall provide a commercially transparent job posting
capability, in the event that ECI software submits a job
posting, in the
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appropriate format for PW use, to specific PW Partner Sites
using PW's capability to properly format and submit the
posting on behalf of ECI or its Affiliates, and where the
posting is billed by the PW Partner Sites directly to ECI,
its Affiliates or customers.
3.1.4 Automatic Submission and Acknowledgment: PW and ECI
have developed a data interchange format and communications
protocol for ECI to automatically submit all job postings.
Both parties agree that no changes will be made to the format
and communications protocol without the written consent of the
other party and that such consent will not be unreasonably
withheld or unduly delayed. The parties will agree on a
mutually convenient schedule for effecting the changes. PW
shall develop and provide an automatic acknowledgment of each
posting received by PW. PW shall also develop and provide to
ECI a monthly report revealing the specific PW Partner
Sites and traffic response on those sites.
3.1.5 Applicant Linking: In order to hot link candidates
directly to the job application page provided by ECI
software, PW shall utilize the specific uniform resource
locator ("URL") provided by ECI within the postings sent
out on behalf of each job position. PW covenants that it will
use its all commercially reasonable efforts to utilize hot
linking. This will normally mean that all postings to job
boards and major commercial web sites will be linked. It is
understood that not all the PW Partner Sites will permit hot
linking.
3.1.6 Site Tagging: PW shall append a destination site
identification tag to the job specific URL supplied by ECI
before submission to each destination site.
3.2 PW shall maintain and update its list of PW Partner Sites on a
monthly basis or more frequently as appropriate. PW shall provide
ECI with the names of partner sites that may be publicized by ECI
or its Affiliates in order to assist in the promotion of the business
of ECI or its Affiliates. ECI understands that these partner
sites are not to be identified as ECI partner sites, but as PW
partner sites. PW shall also provide ECI with the names of other PW
Partner Sites on a confidential basis. ECI agrees that no permanent
copies of such Confidential Information shall be provided to ECI by
PW or maintained by ECI and ECI acknowledges and agrees that it
shall maintain such information as confidential.
3.3 PW covenants and agrees that it shall inform ECI of its plans to
introduce services that may be beneficial to ECI.
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4. PW PERFORMANCE QUALITY SPECIFICATIONS
4.1 PW covenants and agrees that it shall use all commercially
reasonable efforts to provide its posting services seven days a week,
24 hours per day. All commercially reasonable efforts will be made to
ensure that all postings, where no preview or client approval is
required, are be made within 24 hours of receipt from ECI. All
commercially reasonable efforts will be made to ensure that all
postings are receipted to ECI (according to point 3.1.4 above)
within the same twenty-four (24) hour period. PW shall use all
commercially reasonable efforts to utilize its list of PW Partner Sites
for each job position based on the requirements of the position to be
posted.
4.2 In the event PW is not able to provide the performance quality
specifications as aforesaid for a particular ECI customer which
results in the non-payment by the customer for such posting services,
then ECI shall not be obliged to remit the requisite fees to PW in
respect of that customer account.
4.3 PW will provide a full customer service function for ECI
customers utilizing PW's Internet job posting and recruitment
advertising services. The customer service function shall include,
without limiting the generality of the foregoing, front line support
for the postings or advertisements, and specialized site research or
posting augmentation strategies as necessary to ensure that a best
effort has been made to generate applicant responses for the customer.
5. OBLIGATIONS OF ECI
5.1 Subject to the terms and conditions of this Agreement, ECI
agrees to perform the following obligations:
5.1.1 Service Integration. ECI software shall be modified
by ECI to allow every customer of ECI or its Affiliates
the ability, within the graphical user interface of ECI
software, to select a network posting for each job description
intended for posting to the Internet.
5.1.2 Marketing Activity. ECI shall use its best efforts to
actively market the network posting service to its customers
through: (i) presentation within its on-line software service,
(ii) its product literature, and (iii) marketing
communications campaigns that ECI may undertake, including
advertising, direct marketing and public relations components.
ECI agrees to
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keep PW reasonably appraised of its marketing efforts
including the provision of written reports to PW on a
quarterly basis.
Sales Training. ECI shall provide training on the PW
network posting service capabilities and benefits to
its employee sales representatives and Sales Channel
Representatives, including seminar delivery
resources. Without limiting the generality of the
foregoing, ECI agrees that all ECI direct sales
representatives will undergo a minimum of one day of
training provided by PW or by a PW trained ECI
representative, on the capabilities and benefits of
the network posting service. ECI and PW undertake
to insure that the training requirements are updated
from time to time in order to maximize the
effectiveness of the ECI sales force. PW agrees to
provide skilled training personnel, for a minimum of
four (4) Business Days during the first two (2)
months of this Agreement and one (1) Business Day per
month thereafter in order to train ECI employee
sales representatives and Sales Channel
Representatives at mutually convenient locations.
ECI shall provide training to PW representatives
on the features and benefits of the E-Cruiter
software package, to allow PW representatives to
provide an effective overview of E-Cruiter to their
prospects and accounts. PW agrees that its Business
Development and Sales representatives will be
available for one half day of training, provided
by ECI at mutually convenient times and locations.
ECI agrees to provide skilled training personnel,
for a minimum of two (2) Business Days during the
first two (2) months of this Agreement and one half
(1/2) Business Day per month thereafter in order to
train PW representatives.
6. EXCLUSIVITY AND BRANDING
6.1 In order to provide ECI with a competitive advantage to
establish revenue generating distribution channels for PW services, PW
covenants and agrees that it will not enter into any service agreements
of the nature contemplated by this Agreement with any other third
party, contingent upon successful achievement of sales target
objectives by ECI on a continued basis, with sales targets and
exclusivity thereto reviewed
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every three months from the effective date of this agreement. Sales
targets are determined at the sole discretion of PW. Initial sales
targets are established in Schedule A of this agreement.
6.2 In order to maintain the exclusivity provided by Clause 6.1 above,
ECTECI will not commence, continue or complete the development of
products or services that are competitive in any way to the PW products
and services outlined in this agreement. ECI will not enter into an
arrangement of any kind, with an organization other than PW, for the
purposes of providing ECI with products or services that are
competitive in any way to the PW products and services outlined in this
agreement. For greater clarity, services competitive to the PW services
offered in this Agreement means a posting network or site-specific
postings that duplicate or attempt to duplicate the postings specified
in Schedule B. It is acknowledged that ECI provides the career site to
the market at large, and that ECI may develop, as it sees fit, links to
any sites that provide posting capability in any markets world wide, as
long as these links do not attempt to duplicate the postings specified
in Schedule B. ECI will bring new posting network expansion
requirements to PW first, to establish whether PW can meet the schedule
requirements of ECI for introduction of new network territories or
capabilities. ECI has every intention, based on continued performance
of PW in meeting development schedules, of continuing to use PW
services for expansion of ECI's posting network capabilities.
6.3 PW reserves all rights to its service brand names and may, at the
written request of ECI allow ECI and its Sales Channel
Representatives to use its service brand names.
6.4 ECI may at its discretion, apply its own unique brand names
("Private Branding") to the various PW Services. ECI will consult
with PW in order to avoid using names competitive with or damaging to
PW.
7. FEES
7.1 The Parties agree that the determination and payment of the fees
and pricing of Services shall be as set forth in Schedule B. ECI and
PW covenant and agree to treat the fee structure as Confidential
Information except for disclosure to professional advisers
8. TERM AND TERMINATION
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8.1 Subject to the provision of this paragraph 8, this Agreement shall
become effective on the date set out in the first page hereof, and
shall remain in effect for a period of five (5) years from such date;
provided however that either Party may terminate this Agreement at any
time without cause upon thirty (30) days prior written notice of the
other Party.
8.2 Either Party may terminate this Agreement upon written notice to
the other Party for cause if the other Party:
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8.2.1 is in default of its material obligations under this
Agreement including, without limiting the generality of the
foregoing, non-payment of fees unless such default is remedy
within 15 days of written thereof;
8.2.2 if the other Party is declared bankrupt, or makes an
assignment for the benefit of creditors or has a receiving
order made against it or where a trustee in bankruptcy is
appointed;
8.2.3 if the other Party ceases to conduct business in the
normal course.
8.3 Subject to the terms and conditions set forth herein, termination
of this Agreement shall not relieve either Party from any liability or
indebtedness arising before such termination, nor from any obligations
imposed by the provisions of this Agreement, that survive this
Agreement or any liability for damages resulting from a breach of such
provisions.
8.4 If this Agreement is terminated without cause by PW, PW shall
continue to provide full service access to ECI, subject to the terms
and conditions of this Agreement, as follows:
8.4.1 ECI may continue to represent and utilize PW services
for a period of thirty-two (32) weeks following the
termination date for existing customers of ECI or its
Affiliates acquired on or before the termination date; and
8.4.2 ECI may continue to represent and utilize PW services
for a period of twenty-four (24) weeks following the
termination date for any new customers of ECI or its
Affiliates acquired after the termination date.
8.5 PW covenants and agrees that it will not attempt to unfairly
restrict ECI from purchasing PW systems or services on commercially
reasonable terms should such systems or services become available due
to PW cessation of operations.
8.6 PW covenants and agrees to provide written notification to ECI
within ten (10) days of change of control of PW.
8.7 Upon the termination of this Agreement, except for the continuation
privileges set forth in paragraph 8.4 hereof, all rights and licenses
granted by one Party hereto to the other Party hereunder shall
terminate and each Party shall return to the other any materials
(confidential and non-confidential materials) of the other in its
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possession and copies thereof or destroy the same and provide written
certification of destruction.
8.8 In the event that this Agreement is terminated or expires, and that
Services have been prepaid by customers, any sums due to PW pursuant to
this Agreement shall be pro-rated to the date of termination or expiry
of this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1 PW represents and warrants:
9.1.1 that the consummation of the transactions contemplated
by this Agreement will not result in the breach of any term or
provision of or constitute a default under any agreement,
instrument, license or permit or understanding to which PW is
a party;
9.1.2 that it has performed all acts necessary to put into
effect the transactions contemplated by this Agreement,
including, without limiting the generality of the foregoing,
entering into any contract or undertaking with respect to the
provision of Services to PW Partner Sites.
9.2 ECI represents and warrants:
9.2.1 that the consummation of the transactions contemplated
by this Agreement will not result in the breach of any term or
provision of or constitute a default under any agreement,
instrument, license or permit or understanding to which ECI
is a party;
9.2.2 that it has performed all acts necessary to put into
effect the transactions contemplated by this Agreement.
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10. INDEMNITY
10.1 PW hereby covenants and agrees, at its expense, to indemnify
ECI and to defend ECI and to save and hold ECI harmless from
and against and in respect of any and all liabilities, claims, demands,
causes of action, actions, losses, damages and expenses (including,
without limitation, all applicable solicitors' fees and disbursements)
of every nature and kind for or in respect of or relating to this
Agreement, including without limiting the generality of the foregoing:
10.1.1 any liability or costs associated with the
malfunctioning of PW software attributable to any acts
performed in furtherance of the transactions contemplated by
this Agreement;
10.1.2 any liability arising from the breach of the
representations, warranties or covenants made by PW herein; or
10.1.3 any combination of the foregoing.
10.2 Notwithstanding the liabilities contemplated above, PW shall not
be responsible for any liabilities arising from the malfunctioning of
ECI software or from any act or performance of the customers of
ECI and its Affiliates, including data supplied by such customers.
10.3 Any amount for which PW is liable hereunder shall be due and
payable forthwith after demand therefor is made in writing to PW.
11. Limitation of Liability
11.1 THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS (express AND implied and those arising by
statute or otherwise in law or from a course of dealing or usage of
trade), INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF
MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OTHER
WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED ARE GIVEN.
11.2 In no event shall PW have any liability for loss of profits, loss
of business revenue or failure to realize expected savings or for any
indirect, special or consequential damages even if advised of the
possibility thereof.
11.3 Subject to the restrictions in this Section 11 and the indemnities
provisions of Section 10, in the event of any breach by PW of its
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obligations under this agreement, ECI's remedy shall be to receive
from PW payment for actual and direct damages to a maximum amount equal
to the the amounts paid hereunder by ECI to PW.
12. GENERAL PROVISIONS
12.1 Any reference to currency in this Agreement is to Canadian
currency.
12.2 Words importing the masculine gender include the feminine or
neuter gender and words in the singular include the plural and vice
versa.
12.3 Neither the making of this Agreement nor the performance of its
provisions shall be construed to constitute either of the Parties
hereto an agent, employee, partner, joint venture, or legal
representative of the other.
12.4 If any term of this Agreement is found to be invalid, illegal or
unenforceable, in whole or in part, by a body of competent
jurisdiction, that term shall be deemed severed from this Agreement to
the extent of such invalidity, illegality or unenforceability, and such
invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of any other term of the
Agreement.
12.5 (i) In the event of any dispute, claim, question or difference
arising out of or relating to the Agreement or the breach thereof, the
Parties hereto shall use their best endeavors to settle such disputes,
claims, questions or differences. To this effect, they shall consult
and negotiate with each other, in good faith and understanding of their
mutual interests to reach a just and equitable solution satisfactory to
both Parties. If they do not reach such solution within a period of
thirty (30) days, then upon notice by either party to the other the
disputes, claims, questions or differences shall be finally settled by
arbitration in accordance with the provisions of the Arbitration Act
(Ontario) and any amendments thereto.
(ii) The arbitration tribunal shall consist of one (1)
arbitrator appointed by mutual agreement of the Parties or, in the
event of failure to agreement within thirty (30) days, either party may
apply to a judge of the Supreme Court of Ontario to appoint an
arbitrator. The arbitrator shall be qualified by education and training
to pass upon the particular matter to be decided.
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(iii) The arbitrator shall be instructed that time is of the
essence in proceeding with his termination of any dispute, claim,
question or difference.
(iv) The arbitration shall be conducted in English and shall
take place in Ontario.
(v) The arbitration award shall be given in writing and shall
be final, binding on the parties, not subject to any appeal, and shall
deal with the question of costs of arbitration and all matters related
thereto.
(vi) Judgment upon the award rendered may be entered into any
court having jurisdiction or application may be made to such court of
or a judicial recognition of the award or an order of enforcement
thereof, as the case may be.
12.6 This Agreement shall be binding upon and shall enure to the
benefit of the Parties hereto and their respective successors and
assigns.
12.7 Neither Party shall be liable to the other for delays in the
performance of the Agreement caused by unforeseen circumstances beyond
its control, including, but not limited to, acts of God, wars, riots,
strikes, fires, floods or materials, inevitable accidents, governmental
restrictions or other causes beyond reasonable control of such Party.
Either Party shall notify the other in writing of any such events or
circumstances promptly after their occurrence.
12.8 The failure of a Party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver or
deprive that Party of the right hereafter to insist upon strict
adherence to that term or any other term of this Agreement.
12.9 Any notice or other written communication required or permitted
hereunder shall be in writing and:
12.9.1 delivered personally to an officer of the Party to whom
it is directed;
12.9.2 sent by registered mail, postage prepaid, return
receipt requested (provided that such notice or other written
communication shall not be forwarded by mail if on the date of
mailing there exists an actual or imminent postal service
disruption in the city from which such communication is to be
mailed or in which the address of the recipient is found); or
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12.9.3 sent by telecopier or similar method of electronic
telephone transmission.
12.10 All such notices shall be addressed to the Party to whom it is
directed at the following addresses:
if to :
Positionwatch Limited
by mail or personal delivery: 00 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
by facsimile: (000) 000-0000
if to : X-Xxxxxxx.xxx Inc.
by mail or personal delivery: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxx X0X 0X0
Attention: President
by facsimile: (000) 000-0000
12.11 Any such notice or other written communication shall, if mailed
as aforesaid be effective five (5) days from the date of posting; if
given by telecopier, shall be effective on the first business day after
the sending thereof; and if given by personal delivery shall be
effective on the day of delivery.
12.12 Either Party may at any time change its address by giving notice
of such change of address to the other Party in the manner specified
herein.
12.13 This Agreement may be altered, amended or annulled at any time by
the mutual consent in writing of the Parties hereto.
12.14 Time shall be of the essence hereof.
12.15 This Agreement shall be governed by and construed in accordance
with the laws of Ontario.
12.16 This Agreement together with the schedules attached hereto
constitutes the entire Agreement between the Parties hereto pertaining
to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings and discussions, whether
oral or written,
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and there are no other warranties, agreements or representations
between the Parties except as expressly set forth herein.
12.17 This Agreement shall inure to the benefit of and be binding upon
the Parties hereto and their respective successors and assigns.
12.18 This Agreement may be executed in several counterparts, all of
which together shall constitute one and the same instrument.
12.19 The headings appearing throughout this Agreement are inserted for
convenience only and form no part of the Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the Parties
hereto.
SIGNED, SEALED AND DELIVERED
POSITIONWATCH LIMITED
Per:
Title:
X-XXXXXXX.XXX INC.
Per:
Title:
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SCHEDULE "A"
ECI SALES TARGETS
ECI shall, for the period March 1st 1999 to May 31st 1999 (Target Period),
generate a minimum of two hundred (200) (Target Amount) network postings in
purchase orders to PW. If, at any time during or after the Target Period,
purchases made during the Target Period are cancelled for any reason, bringing
the total purchases for the Target Period to less than the stated Target Amount,
ECI will be considered to be short of their sales target.
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SCHEDULE "B"
PRICING OF PW POSTING SERIVCES TO ECI
Effective 15 February 1999
1. Network Postings: At the time of writing of this Schedule, XX xxxxx to ECI
a "Canada/Ontario" Network Posting that includes, but is not limited to, the
following sites:
Positionwatch
Career Mosaic
Internet Job Locator
Job Sat
NetJobs
CareerShop
Career Marketplace
CareerMag
Career Span
News Groups (25 or more)
PW does not warrant that these sites will remain as part of the posting package
for any length of time. PW will make every commercially reasonable effort to
provide a substitute site of equivalent commercial value should a site listed
above be removed from the package for any reason. PW will notify ECI in advance
of any planned changes to the posting package (ten business days notice). This
Schedule and the prices herein must be modified and agreed to for every change
in the list of sites contained within this posting package, with the exception
of addition or deletion of specific Newsgroups.
For this Network Posting, PW shall charge ECI according to the following
rates ($Cdn):
Single $125
5-pack $625
10-pack $1,200
20-pack $2,300
50-pack $5,500
100-pack $10,000
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The volume `packs' in the above table are purchased by ECI's end customers, and
the purchase order to PW is placed by ECI on behalf of the end customer. The
intent it for the above volume discounts to apply to customer purchases and not
to volume purchases by ECI prior to sale to an end customer.
PW will provide ECI with sixty (60) days advance written notice of any
requirement to change the above pricing.
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2. Premium or Site-Specific Postings: New sites may become part of a "Premium
Network Posting" or they may remain as independent "Site-Specific Posting"
purchases for ECI's customers. PW will make every effort to negotiate favorable
pricing with each site partner as compared to the retail prices charged by these
sites to the marketplace, and to offer ECI a discount, determined by PW, on the
purchase of these postings. A Premium/Site-Specific Price List will form part of
this Schedule and will be updated as pricing for each site is negotiated.
3. Transparent Postings: PW shall charge ECI a transaction fee of CD$2.50 for
each Transparent Posting transaction performed for ECI. This pricing applies
to sites where PW does not incur extra charges for the service beyond its
current negotiated agreements. Transparent Posting fees are subject to change
for any given site; provided however that if additional charges are imposed on
PW by PW partner sites, PW will notify ECI in writing of sites with extra
charges.
4. Payment Terms: ECI will invoice the end customer for posting services and
will remit funds due to PW within sixty (60) days of the date of invoice from
PW.
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