Joint Marketing/Sales Representative Agreement - NetStart Inc. and ADP Inc.
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EXECUTION COPY
ADP JOINT MARKETING/SALES REPRESENTATIVE AGREEMENT
AGREEMENT dated January 23, 1998 between NetStart, Inc., a Delaware corporation
with offices at 11495 Sunset Hills Road, Reston Virginia 20190 ("NETSTART") and
ADP, Inc., a Delaware corporation with offices at One ADP Boulevard, Roseland,
New Jersey 07068 (together with its subsidiaries and affiliates, "ADP").
1. Overview.
A. ADP and NETSTART agree that ADP will conduct a pilot marketing
program to market and obtain orders for NETSTART's Internet
recruiting software (including TeamBuilder, TeamBuilder on-line,
Career Builder, and any related product or service, collectively
referred to herein as the "Products") to the current ADP client
base, and/or to potential ADP clients, using a "co-brand strategy"
(the "Pilot"). For purposes of this Agreement, "Co-brand strategy"
shall mean that (i) NETSTART will package the Products for
sale/distribution to ADP acquired clients (as defined below) with
an ADP approved ADP logo; (ii) certain NETSTART product literature
chosen by ADP will be reprinted (at ADP's cost) and will bear
ADP's name and logo (standard NETSTART reports will not be
changed); (iii) both ADP and NETSTART agree to cooperate with each
other in the use of their respective logos; provided however, that
in no event shall either party use the other party's name,
trademark(s) or logo without prior written consent; and (iv) ADP
and NETSTART will work together to develop a package of NETSTART
products/services, which will be packaged together and offered
exclusively to ADP, as provided below, including but not limited
to a customized ADP web site (which shall be similar in form and
functionality to NETSTART's existing TeamBuilder on-line web
sites). NETSTART will be solely responsible for the development
and support of the Products (including customer support);
packaging, distribution and shipment of the Products to ADP
clients and prospects and support of those clients; provided
however, that if ADP requests special or non-standard NETSTART
packaging, ADP shall pay the costs of customizing such packaging.
ADP, as sales representative for NETSTART, shall be responsible
for marketing and obtaining orders for the Products from its
clients and prospects, as well as billing such clients and
prospects for the Products, in accordance with the provisions of
this Agreement. ADP's right to market and obtain orders for the
Products is worldwide and is not limited in any respect (including
but not limited to with respect to distribution channels, target
markets and marketing strategies). Each ADP client or prospect
that has purchased a Product and with respect to which ADP has
forwarded an order form to NETSTART, shall be deemed to be an "ADP
acquired client".
2. Product Pricing and Revenue Sharing.
A. ADP, as sales representative for NETSTART, may procure orders with
no more than a 30% discount from NETSTART's list prices; provided
however, that orders from certain clients may reflect greater
discounts to match those being offered by NETSTART to comparably
situated clients. ADP and NETSTART agree to cooperate in
negotiating with large major and national account clients that
require special pricing. NETSTART's current list prices are set
forth in the attached Price Lists. NETSTART agrees to provide ADP
with written notice of changes in pricing at least 30 days in
advance of the effective date. NETSTART agrees that it will not
increase the pricing shown in the attached Price List unless it is
raising its prices to all customers generally. NETSTART further
agrees, that at all times during the term of this Agreement, its
charges to ADP acquired clients for services shall
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be at least as low as its lowest charges for such services to any
of its similarly situated customers and that it will not offer any
other sales representative, or joint marketing, reseller or
similar company, a combination of sales commissions and customer
discounts that will be greater than those offered to ADP hereunder
unless also offered to ADP.
B. As its sales commission for sales arranged on behalf of NETSTART,
ADP will be entitled to retain revenue for all sales of Products made to ADP
acquired clients as follows:
(i) Job postings to CareerBuilder and Affiliate Sites
("Affiliates" means all Internet Media Sites utilizing NETSTART'S CareerBuilder
technology):
<TABLE>
<CAPTION>
Total Quarterly Revenue* % Revenue to ADP for % Revenue to ADP for
------------------------ CareerBuilder Postings: Affiliate Postings:
----------------------- -------------------
<S> <C> <C>
< $18M/quarter 50% 25%
$18M-$60M/quarter 54% 27%
> $60M but < $120M/quarter 57% 29%
>= $120M/quarter 60% 31%
</TABLE>
(ii) Set-Up; Misc. Monthly Fees: ADP will also retain a pass
through equal to 66% of all monthly minimum fees and of all client
account set-up, installation and support fees for all ADP acquired
clients.
(iii) TeamBuilder Software Sales: ADP will also retain a pass
through equal to 50% of all revenues received by ADP for all sales
of TeamBuilder software made to ADP acquired clients.
(iv) Advertising: ADP will also retain a pass through equal to
50% of all revenues received by ADP for all sales of on-line radio
and banner advertising made to ADP acquired clients.
(v) ADP will make revenue pass through payments to NETSTART by
check, to the address indicated by NETSTART from time to time in
writing, quarterly in arrears with respect to all revenues
recognized by ADP in the previous quarter which arose under this
Agreement. All such payments will be net of any credits issued to,
'bad debt' and similar write-offs for, ADP acquired clients. The
revenue sharing percentage for CareerBuilder postings will be set
each quarter in arrears at the quarterly revenue plateau achieved
during such quarter. If the pre-paid revenue payments made by ADP
under the terms of paragraph C below have been exhausted before
June 1, 1999, then ADP shall make estimated revenue pass through
payments to NETSTART monthly during the Monthly Payment Period,
which will be reconciled quarterly in arrears. "Monthly Payment
Period" shall mean the period commencing with the first full
calendar month following the month in which the pre-paid revenue
payments have been exhausted and ending on the earlier to occur of
(1) June 30, 1999 and (2) the sixth monthly payment.
* This is a total monthly revenue number that would be recognized
under Generally Accepted Accounting Practices for all NETSTART
related products and/or services for which orders were
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procured by ADP, including CareerBuilder postings, Affiliate site postings,
TeamBuilder Software, and other TeamBuilder On-line set-up or service fees,
all as calculated without taking commissions payable to ADP into account.
ADP shall continue to receive the revenue pass through for an ADP acquired
client for as long as such client continues to receive any NETSTART product
or service for which orders were procured by ADP, regardless of the
termination or expiration of this Agreement or the status of the joint
marketing/distribution relationship between ADP and NETSTART.
C. Notwithstanding the foregoing, in recognition of certain marketing
and developments costs incurred by NETSTART in launching this Pilot, ADP
shall make a $1.5 million pre-paid revenue payment to NETSTART, payable
as follows: (i) $500,000 payable upon execution of this Agreement by both
parties, (ii) $500,000 payable to NETSTART upon commencement of Phase 2
and (iii) $500,000 payable to NETSTART upon commencement of Phase 3.
NETSTART agrees that ADP shall be entitled to receive the first
$1,500,000 revenue earned by NETSTART as a result of sales of the
Products from orders procured by ADP
For purposes of this Section, "Phase 2" shall mean the expansion
of ADP's involvement in marketing and obtaining orders for the Products
to clients and prospects in up to 12 of its Major Account regions which
shall occur on or before May 1, 1998 and "Phase 3" shall mean the
expansion of ADP's marketing of the Products nationally, to all of its
Major Account regions (which at the time of signing this Agreement
numbered 40) which shall occur on or before August 1, 1998. In each case
the progression to the next Phase of the joint marketing/distribution
arrangement shall be evidenced by ADP's written notification to NETSTART
setting forth the date of such advancement. ADP shall be obligated to
proceed to Phase 2 of the arrangement unless, in its reasonable business
judgment one of the following events has occurred: (i) TeamBuilder
on-line is no longer reasonably competitive in the marketplace (either in
functionality or price) or (ii) NETSTART's client base (excluding ADP
acquired clients) for its TeamBuilder on-line product is not at least 190
by April 1, 1998. ADP may elect, in its sole discretion, not to proceed
to Phase 3 by giving written notice to NETSTART on or before June 1,
1998. If ADP elects not to proceed to Phase 3, then ADP shall not make
the last $500,000 prepaid revenue payment and the exclusivity provisions
contained in Section 3A and B below shall immediately terminate. If ADP
elects to proceed to Phase 3, the final pre-paid revenue payment shall be
made on or before June 30, 1998.
3. Exclusivity:
A. NETSTART agrees that it will not, without the prior written
approval of ADP, during the term of this Agreement, enter into any
new reseller, distribution or similar agreement with (i) any HRIS
provider which offers payroll software or payroll processing
services similar to those offered by ADP, to sell or distribute
any or all of the Products in the United States or Canada or (ii)
another payroll or benefits administration provider.
B. ADP agrees that it's Employer Services division will not, without
the prior written approval of NETSTART, during the term of this
Agreement, enter into any new joint marketing, reseller,
distribution or other arrangement, or any agreement similar in
nature to this Agreement with another provider of Internet
recruitment services which offers products or services similar to
NETSTART's TeamBuilder on-line product (or its successor(s)) in
the United States or Canada. Notwithstanding the foregoing, ADP
may enter into such an arrangement with a provider of a
product/service that has features/functionality not
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adequately addressed by TeamBuilder on-line or that targets a
market segment not adequately served by TeamBuilder on-line.
4. ADP Agrees to:
A. Forward, either by facsimile or electronically, to NETSTART
headquarters an order form for each ADP client or prospect
electing to contract for any of the Products, with terms and
conditions similar to the NETSTART agreement attached to this
Agreement. NETSTART may reject any order which contains terms
which are additional or different from those in such attached
agreement or is received from a customer determined by NETSTART in
its reasonable business judgment to be unacceptable.
B. Market the Products to its existing and prospective clients
through, at a minimum, its Major Accounts Division direct sales
force (the "Sales Team") and its web-site.
C. Do all billing and collections for any NETSTART or Affiliate
products and/or services for which the order was procured by or on
behalf of ADP. NETSTART will work with ADP in good faith to define
the necessary processes, procedures, and data flows to enable ADP
to perform this billing and collection function. It is also agreed
that NETSTART will, upon written request by ADP, assume
responsibility for performance of the billing and collection for
NETSTART or Affiliate products and/or services for which the order
was procured by or on behalf of ADP on a monthly basis; provided
however, that if ADP has not assumed responsibility for these
billing and collection functions prior to Phase 3, ADP's revenue
share will decrease by 5% until such time as ADP has assumed the
billing and collections responsibilities.
D. Allow on-site visits at NETSTART's option to ADP's place or places
of business upon reasonable prior written notice and during normal
business hours and allow NETSTART, or its accountants, to
periodically examine and make copies of all books and records of
ADP insofar as they relate to this Agreement.
E. Establish "roll-call", sales incentive and commission policies for
the Products that are consistent with those established by ADP
with respect to ADP's own products and services.
F. Not to disassemble, decompile or otherwise reverse engineer the
Products or otherwise attempt to learn the source code, structure
or algorithms or ideas underlying the Products or modify the
Products.
G. To keep NETSTART informed as to any material problems encountered
with the Products and any resolutions arrived at for those
problems, and to communicate (unless prohibited by confidentiality
obligations) promptly to NETSTART any modifications, design
changes or improvements of the Products suggested by any customer,
employee or agent. ADP will also promptly notify NETSTART of any
infringement of any trademarks or other proprietary rights to the
Products of which ADP becomes aware.
H. Defend, indemnify and hold NETSTART, its successors, assigns,
officers, directors, employees, associates or agents harmless from
and against any and all claims and causes of action brought
against NETSTART by a third party, including any and all damages,
losses, expenses, attorney's fees, costs and liabilities sustained
by NETSTART arising out
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of the failure of ADP to meet its obligations under this
Agreement. In any proceeding to enforce this indemnification, all
defenses to the claimed failure to meet obligations are preserved.
5. NETSTART Agrees to:
A. Assist ADP with the development of marketing materials, sales
training for the ADP sales force and the presentation of the
Products to target ADP's Major Accounts.
B. Perform all customer account set-up; customer orientation and
training (to the same extent NETSTART offers orientation and
training to its non-ADP acquired clients); order entry; customer
service; product support; order processing and delivery; and
report interpretation; as well as any other function normally
performed by NETSTART in selling (other than the marketing and
billing/collection activities expressly undertaken by ADP pursuant
to the terms of this Agreement) and supporting its products,
including without limitation the following:
(i) Manufacturing- NETSTART will manufacture all goods and
assemble the Products. NETSTART will choose all vendors
used for manufacturing, including printing, disk
duplication and assembly.
(ii) Fulfillment-NETSTART will handle all fulfillment of the
Products', sales, including warehousing, pick and pack,
labeling of package, carrier (shipper) cost and selection,
tracking of shipment as well as management of returns.
(iii) Billing Support-NETSTART will track all sales of the
Products made from orders procured by ADP and will develop
and maintain a billing summary report (the content, format
and transmission method of which will be approved by ADP)
and will forward such report to ADP within 15 days of the
end of each calendar month.
(iv) Technical Support-NETSTART will handle all technical
support for the Products' customers (from 8 AM to 8 PM
EST); all calls associated with the Products, including
customer comments, product enhancements and technical flaws
will be tracked and addressed by NETSTART. NETSTART will
make their call log available to ADP upon request.
(v) Customer Service-NETSTART will also handle all customer
service and will have representatives available from 8 AM
to 8 PM EST to receive customer calls. NETSTART will
establish and maintain a toll-free telephone number which
will be exclusively available to ADP acquired clients for
customer service and technical support (including, but not
limited to, implementation of NETSTART products and
services). NETSTART will also track all customer service
issues and a report of such customer service activities
will be made available to ADP upon request.
(vi) Packaging- NETSTART will manage all packaging activities
including design, film, printing, and assembly. ADP will
have the opportunity to proof and approve package design to
ensure that ADP's brand integrity is maintained.
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(vii) Updates; Product Enhancements-NETSTART will maintain an
appropriate staff (both in size and qualifications) to
continually update and enhance the Products, so that the
Products contain those features and functionality
(including but not limited to, compatibility with
state-of-the-art platforms and Internet services) required
to keep the Products competitive in the marketplace.
NETSTART will consider in good faith all Product
improvements recommended by ADP.
C. Process and fulfill orders for ADP acquired clients in the same
manner and with the same urgency and degree of care as its non-ADP
acquired clients.
D. Provide Product literature and sales tools for the ADP Sales Team
and to package the Products with the appropriate product reference
guides and instructions. It is agreed that all such packaging will
be approved in advance by ADP and NETSTART and that the
reproduction of all such literature shall be at ADP's expense.
E. Allow on-site visits at ADP's option to NETSTART's place or places
of business upon reasonable prior written notice and during normal
business hours and allow ADP, or its accountants, to periodically
examine and make copies of all books and records of NETSTART
insofar as they relate to this Agreement.
F. Use all reasonable efforts to assist ADP in integrating the
TeamBuilder on-line products with ADP products; such integration
will include, at a minimum, development of a link from ADP's PC
Payroll for Windows, HR Perspective and CSS HRizon products to
TeamBuilder on-line which will enable a user to access NETSTART's
on-line recruiting product by merely 'clicking' on an icon.
G. Develop and launch a TeamBuilder on-line site for ADP on or before
January 15, 1998. ADP's on-line recruiting web site will consist
of developing a private-label ADP career center integrating
NETSTART's Internet recruiting technology into ADP's Web site.
NETSTART will consult with ADP on the specifications and will
consider all ADP suggestions and modifications in good faith.
H. Promptly inform ADP of (a) any problems encountered with the
products or services and any resolutions arrived at for those
problems; (b) all modifications, additions or changes in the
products or services or its marketing strategy with respect
thereto; (c ) required changes in the marketing, sales or related
documentation and (d) known changes in any laws or regulations, in
each case to the extent it that would affect ADP's ability to
perform its obligations under this Agreement. For purposes of
clause (a) of this paragraph H, "promptly" shall mean within three
(3) business days of NETSTART's discovery of the problem and/or
resolution.
I. To honor the pricing set forth in each customer's order form for
the term set forth therein, regardless of termination of this
Pilot or NETSTART's marketing relationship with ADP.
J. Warrant that the TeamBuilder software, CareerBuilder and
TeamBuilder on-line services (and any successor products and
services) will (i) perform functionally as described in NETSTART's
published marketing literature and specifications and (ii) be free
from material defects in design, workmanship and materials which
prevent them from being used
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for their intended purposes. NETSTART MAKES NO OTHER WARRANTIES
WITH RESPECT TO THE PRODUCTS OR ANY SERVICES AND DISCLAIMS ALL
OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY,
INFRINGEMENT (EXCEPT AS SET FORTH BELOW IN PARAGRAPH K) AND
FITNESS FOR A PARTICULAR PURPOSE.
K. Defend, indemnify and hold harmless ADP, its successors,
assigns, officers, directors, employees, associates or agents
harmless from and against any and all claims and causes of action
brought against ADP by a third party, including any and all
damages, losses, expenses, attorney's fees, costs and liabilities
sustained by ADP arising out of the failure of the NETSTART to
meet its obligations under this agreement. In any proceeding to
enforce this indemnification, all defenses to the claimed failure
to meet obligations are preserved. NETSTART shall also defend,
indemnify and hold harmless ADP, at NETSTART's own cost and
expense, from any claims, actions, suits or proceedings asserted
or brought in connection with any allegations that the Products
infringe or violate any patent, copyright, trade secret or other
proprietary right of any third party and NETSTART shall hold ADP
harmless from and against any and all costs (including reasonable
attorneys' fees), damages, interest and liabilities assessed
against or incurred by ADP in connection with any such claim,
action, suit or proceeding; provided that ADP has taken all
reasonable steps to mitigate any potential damages which may
result, provided that such steps do not require ADP to incur any
out-of-pocket costs or expenses. ADP agrees to promptly notify
NETSTART of any and all threats, claims and proceedings arising
under this indemnification and to give reasonable assistance and
the opportunity to assume sole control over the defense and all
negotiations for a settlement or compromise to NETSTART. NETSTART
will not be responsible for any settlement entered into by ADP
that it did not approve in writing. The foregoing indemnification
obligation of NETSTART does not apply to the extent that the
infringing Product or portions or components thereof or
modifications thereto were not supplied or approved by NETSTART,
or were combined with other products, processes or materials not
supplied or approved by NETSTART (where the alleged infringements
relates to such combination).
6. Product Training/Meeting Attendance.
A. In addition to any specific obligations set forth above in
Sections 4 and 5, each party agrees, to the extent relevant to
this Agreement, to cooperate with the other in good faith to
educate and train such other party with respect to its business,
products and services; including without limitation, permitting
the other party to attend relevant sales or user group meetings.
The extent of each party's participation in such meetings and the
selection of which meetings to attend shall be mutually agreed
upon between ADP and NETSTART.
B. Each party also agrees to cooperate in good faith to identify and
attend appropriate seminars and conventions and, where
appropriate, to make a joint presentation or set-up a joint booth
(or its equivalent) at such events.
C. ADP and NETSTART shall each bear responsibility for the cost of
their respective foregoing meeting, seminar and convention
attendance and visits.
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7. ADP's Equity Investment
A. Pursuant to the terms of the Class D Convertible Preferred Stock
Purchase Agreement and the Warrant Agreement, each between ADP and
NETSTART and of even date herewith, ADP has purchased 5.8% of the
Class D Convertible Preferred Stock of NETSTART for the sum of $3
million. ADP and NETSTART intend to create an ongoing strategic
relationship between their two businesses, in part through the
acquisition by ADP of the minority interest in NETSTART and in
part by entering into this joint marketing/distribution agreement.
8. Term and Termination.
A. This Agreement shall continue until the second anniversary of the
date hereof (the "Initial Term"), and thereafter shall continue
automatically unless and until terminated in accordance with the
following provisions:
(i) ADP may terminate this Agreement at any time after the
Initial Term by giving NETSTART not less than one hundred
and twenty (120) days' written notice;
(ii) NETSTART may terminate the exclusivity provisions of this
Agreement (Section 3, paragraphs A & B together but not
separately) as follows: (a) by written notice to ADP within
60 days of the end of the Initial Term, if total annual
revenues generated from ADP acquired client's (without
deducting ADP's revenue pass back) did not equal or exceed
$17.5 million in the Initial Term; (b) by written notice
to ADP if total annual revenues generated from ADP acquired
clients (without deducting ADP's revenue pass back) in the
first year after the Initial Term do not equal or exceed
$17.5 million; (c ) by written notice to ADP if total
annual revenues generated from ADP acquired clients
(without deducting ADP's revenue pass back) in the second
year after the Initial Term do not equal or exceed $35
million; or, $50 million in any year thereafter; or (d) by
giving 90-days prior written notice to ADP if ADP offers a
product/service for sale in the United States which is
substantially similar to TeamBuilder on-line;
(iii) NETSTART may terminate this Agreement at any time after the
third anniversary of this Agreement, as follows: (a) by
giving one year prior written notice to ADP if total annual
revenues generated from ADP acquired clients (without
deducting ADP's revenue pass back) did not equal or exceed
$5 million in any one year; (b) by giving two years prior
written notice to ADP if total annual revenues generated
from ADP acquired clients (without deducting ADP's revenue
pass back) did not equal or exceed $10 million in any
two-year period; or (c ) by giving three years prior
written notice to ADP if total annual revenues generated
from ADP acquired clients (without deducting ADP's revenue
pass back) did not equal or exceed $20 million in any
three-year period; and
(i) Either party may terminate this Agreement for cause
immediately upon the occurrence of an Event of Default
(defined below in Section 9).
B. Notwithstanding termination or expiration of this Agreement,
NETSTART's obligation to pay the revenue pass through to ADP shall
continue with respect to each ADP acquired client as provided for
herein.
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9. Events of Default.
A. The following constitute events of default under this Agreement:
(a) if the other party ceases to do business, or otherwise
terminates its business operations or if there is a material
change in control of the other; (b) if the other party materially
breaches any material provision of this Agreement and fails to
substantially cure such breach within 30 days of receipt of
written notice describing the breach; or ( c) if the other party
becomes insolvent, generally stops paying its debts as they become
due or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding,
or if any such proceeding is instituted against the other (and not
dismissed within 90 days). For purposes of this provision, a
"change of control" shall not include a registered public offering
of either company's stock pursuant to the Securities Act of 1933.
10. Dispute Resolution.
A. All disputes, controversies, or claims arising out of or relating
to this Agreement ("Disputes") shall be referred to an Advisory
Board (such Board to consist of 2 designees from each of ADP and
NETSTART) prior to escalation to Senior Management. The Advisory
Board shall meet within 5 business days, or as soon thereafter as
reasonably practicable, of receiving notice of a Dispute. In the
event that the Advisory Board is unable to resolve, or does not
anticipate resolving, the Dispute within 10 business days of the
date of the meeting during which such Dispute was considered, the
Advisory Board shall notify the senior executive selected by each
party pursuant to Section 10B below. No Dispute under this
Agreement shall be the subject of any formal legal proceeding
between ADP and NETSTART before being considered by the Advisory
Board and senior management, except for an action to seek
injunctive relief to stay a breach of this Agreement.
B. Either party may, upon notice and within 5 business days of
receipt of a notice from the Advisory Board pursuant to Section
10A, elect to utilize a non-binding resolution procedure whereby
each presents its case at a hearing (the "Hearing") before a panel
consisting of a senior executive of each of the parties. If a
party elects to use the procedure set forth in this Section 10B,
the other party shall participate. The Hearing will occur as soon
as reasonably practicable after a party serves notice to use the
procedure set forth in this Section. Each party may be represented
at the Hearing by lawyers. If the matter cannot be resolved at the
Hearing, each party's only recourse will be binding arbitration as
provided for in Section 10C below and the proceedings occurring
pursuant to this Section 10B will have been without prejudice to
the legal position of either party. No arbitration or other legal
proceeding may commence concerning the Dispute until 10 business
days have elapsed from the first day of the Hearing. The parties
shall each bear their respective costs incurred in connection with
the procedure set forth in this Section 10B, except that they
shall share equally the cost of any facility used for the Hearing.
C. If a Dispute is not resolved pursuant to Section 10B, then either
party may, within 30 days after the completion of the procedures
set forth in Sections 10A and 10B above, upon notice, submit the
dispute to formal binding arbitration. The arbitration shall be
held in New York, New York before a panel of three arbitrators.
Either ADP or NETSTART may by notice to the other party demand
arbitration, by serving on the other party a statement of the
dispute,
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controversy or claim, and the facts relating or giving rise
thereto, in reasonable detail and the name of the arbitrator
selected by it. Within 10 days after receipt of such notice, the
other party shall name its arbitrator, and the two arbitrators
named by the parties shall, within 10 days after the date of such
notice, select the third arbitrator. The arbitration shall be
governed by the Commercial Arbitration Rules of the American
Arbitration Association, as may be amended from time to time.
11. General Provisions.
A. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR
SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.
B. All information communicated to one party by the other, whether
before or after the commencement of the Pilot, shall be and was
received in confidence and shall be used only for the purposes of
this Agreement. No such information, including the terms of this
Agreement, shall be disclosed by the recipient party, its agents
or employees, or used for any purpose other than the performance
of the terms of the Agreement without the prior written consent of
the other party. The foregoing will not prevent either party from
disclosing information which belongs to such party or is (i)
already known by the recipient party without an obligation of
confidentiality; (ii) publicly known or becomes publicly known
through no unauthorized act of the recipient party; (iii)
rightfully received from a third party; (iv) independently
developed by the recipient party without use of the confidential
information of the other party; (v) disclosed without similar
restrictions to a third party by the party owning the confidential
information; (vi) approved by the other party for disclosure; or
(vii) required to be disclosed pursuant to a requirement of a
governmental agency or law so long as the disclosing party
provides the other party with notice (if possible) of such
requirement prior to any such disclosure.
C. ADP acknowledges and agrees that the Products, and all copies
thereof, constitute valuable trade secrets of NETSTART and/or
proprietary and confidential information of NETSTART and title
thereto remains in NETSTART. Ownership of all applicable
copyrights, trade secrets, patents and other intellectual property
rights in the Products are and shall remain vested in NETSTART.
D. Both ADP and NETSTART are committed to the highest levels of
product quality and customer service and agree to work together to
identify appropriate measures of quality and service and to put in
place processes and procedures aimed at attaining these levels to
the satisfaction of both parties. Additionally, both parties agree
to conduct themselves and perform their obligations according to
the highest ethical and performance standards.
E. It is understood that any and all customers for which ADP has
obtained a NETSTART User Agreement or order form are ADP clients.
ADP retains the right to contact such clients at any time, through
any means, during and after the term of this Agreement; including,
but not limited to, for purposes of notifying such clients that
this Pilot or ADP's marketing relationship with NETSTART has
ended. It is also agreed that NETSTART has the foregoing right to
contact such clients.
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F. During the term of this Agreement and for a period of one year
thereafter, neither party shall, without the other party's written
approval, solicit for employment nor employ (either as an
employee, contractor, independent agent or representative of
another vendor) any of the other party's employees involved in the
performance of this Agreement.
G. All aspects of the Pilot and/or joint marketing relationship not
otherwise covered in this Agreement shall be subject to the mutual
agreement of ADP and NETSTART. This Agreement may not be assigned
by either party without the written consent of the other party.
H. All notices, requests, consents and other communications provided
for by this Agreement shall be in writing and shall be deemed
given when mailed at any general branch United States Post Office
enclosed in a registered or certified postpaid envelope or sent
via overnight courier, to the parties at the addresses set forth
below or to such changed address as each party may designate by
notice to the other:
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If to ADP: If to NETSTART:
One ADP Boulevard 11495 Sunset Hills Road
Roseland, New Jersey 07068 Reston, Virginia 20190
Attn: VP of Internet Development Attn: Thomas Young, Director of Alliances
with a copy to:
Automatic Data Processing, Inc.
One ADP Boulevard
Roseland, New Jersey 07068
Attn: General Counsel
</TABLE>
I. ADP and NETSTART agree that each is acting independently of the
other, that they are not joint venturers, and that neither is an
agent of the other.
J. This Agreement supersedes all proposals, oral or written, all
negotiations, conversations, or discussions between or among
parties relating to the subject matter of this Agreement and all
past dealing or industry custom. If any provision in this
Agreement is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, that provision shall be limited
or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and
enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives on the date first above set forth.
ADP, INC. NETSTART, INC.
By: /s/ GARY BUTLER By: /s/ RICHARD WATHEN
------------------------- -------------------------
(Signature) (Signature)
Name: Gary Butler Name: Richard Wathen
------------------------- -------------------------
(type or print) (type or print)
Title: Title: Controller
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11
<PAGE> 12
ADDENDUM TO THE ADP JOINT MARKETING/SALES
REPRESENTATION AGREEMENT
BETWEEN
ADP, INC. AND CAREERBUILDER, INC. (FORMERLY, NETSTART, INC.)
This Addendum, made as of November 17, 1998, by and between ADP, Inc. ("ADP")
with its principal office at One ADP Boulevard, Roseland, New Jersey 07068 and
Careerbuilder, Inc. (formerly, Netstart, Inc., "Careerbuilder"), with its
principal office at 11495 Sunset Hills Road, Reston, Virginia 20190, contains
changes, modifications, revisions and additions to the ADP Joint Marketing/Sales
Representation Agreement dated January 23, 1998 (the "Agreement").
In consideration of the mutual covenants contained in the Agreement and in this
Addendum, and for other good and valuable consideration receipt of which is
hereby acknowledged, notwithstanding anything to the contrary contained in the
Agreement, ADP and Careerbuilder agree as follows:
1. Section 2 B is amended by deleting the numbers 25%, 27%, 29% and 31% in the
% Revenue to ADP for Affiliate Postings column in clause (i) thereof and
replacing them with the following new numbers: "33 1/3%, 35 1/3%; 37 1/3%;
and 39 1/3%" for all purposes under the Agreement.
2. ADP and Careerbuilder agree that ADP is entitled to retain a pass through
on Affiliate Posting revenue in the new higher, percentages set forth in
paragraph 1 above, prospectively for all sales of Products made to ADP
acquired clients commencing on the date of this Addendum.
All other terms and conditions of the Agreement shall remain in full force and
effect. In the event of any conflict between the terms and conditions of this
Addendum and the terms and conditions of the Agreement, this Addendum shall
prevail. The terms defined in the Agreement and used in this Addendum shall
have the same respective meanings as set forth in the Agreement, unless
clearly otherwise defined in this Addendum.
IN WITNESS WHEREOF, this Addendum to the Agreement is hereby executed by an
authorized representative of each party hereto as of the date first above
written.
ADP, INC. CAREERBUILDER, INC.
By: /s/ GEORGE I. STOECKERT By: /s/ ROBERT MCGOVERN
---------------------------------------- --------------------------------
Name: George I. Stoeckert Name: Robert McGovern
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Title: President, Major Accounts Division Title: CEO
------------------------------------- -----------------------------
agrmnt/careerad