Joint Marketing/Sales Representative Agreement [Amendment] - CareerBuilder Inc. and ADP Inc.
AMENDMENT AGREEMENT
This Amendment is made and entered into as of the 5th day of March, 1999
by and among CareerBuilder, Inc., a Delaware corporation formerly known as
"Netstart, Inc." (the "Company"), and ADP, Inc., a Delaware corporation ("ADP").
WITNESSETH:
WHEREAS, the Company and ADP entered into the ADP Joint Marketing/Sales
Representative Agreement dated as of January 23, 1998, as amended by addendum on
November 17, 1998 (the "Marketing Agreement");
WHEREAS, the Company and ADP desire to amend the Marketing Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree that:
1. All references to NetStart, Inc. are hereby amended to
CareerBuilder, Inc.
2. Section 3B is hereby amended to add the following sentence, which
shall become the final sentence of such section:
"Notwithstanding the foregoing, if, in ADP's reasonable
judgment, ADP determines that TeamBuilder Online and/or the
CareerBuilder Network have material competitive inadequacies
that substantially reduce their competitiveness in relation to
other online recruiting products, ADP shall notify the Company
of its determination, listing the specific features and
functionalities that are deficient and specifying the basis
for ADP's determination that competitiveness is reduced. The
exclusivity provisions contained in this Section 3B shall not
apply to any agreement or arrangement entered into by ADP to
address such deficiencies if the Company does not specifically
correct the competitive features and functionalities listed in
such notice within 180 days of such notice to ADP's reasonable
satisfaction."
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3. Section 5B(iv) is hereby amended to add the following sentence,
which shall become the final sentence of such section:
"The types of information contained in such call log (i.e.
client identification information, statement of problem,
resolution of problem) shall be mutually agreed upon by the
Company and ADP and shall be consistent with the Company's
current customer support practices."
4. Section 5B(v) is hereby amended to add the following sentence, which
shall become the final sentence of such section:
"The Company and ADP may mutually agree to set up
target response times within which to respond to customer
calls."
5. Section 8 is hereby amended so that the preamble shall read in its
entirety as follows:
"This Agreement shall continue until January 23, 2002 (the
"Initial Term"), and thereafter shall continue automatically
unless and until terminated in accordance with the following
provisions:"
6. Section 8(A)(iv) is hereby amended to read in its entirety as
follows:
"(iv) During the Initial Term or any extension thereafter,
either party may terminate this Agreement for cause
immediately upon the occurrence of an Event of Default
(defined below in Section 9)."
7. Section 9(A)(b) is hereby amended to read in its entirety as
follows:
"(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, provided, however, that a breach of any
provision of Section 3A shall be governed solely by the
provisions contained therein;"
8. A new Section 11 is hereby added to the Agreement and shall read in
its entirety as follows:
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"11. Board Representation. The Company agrees to nominate or
cause to be nominated as a director to serve on its Board of
Directors one representative of ADP, who shall be either Gary
Butler or such other representative of ADP who is reasonably
acceptable to the Company. The Company's commitment under this
Section 11 shall remain in effect for the term of the
Agreement."
9. A new Section 12 is hereby added to the Agreement and shall read in
its entirety as follows:
"12. Product Development. The Company shall, at ADP's specific
request, schedule quarterly meetings attended by ADP and
senior marketing and development executives of the Company in
order for the Company to provide ADP overviews of its product
planning activities for Company products, features and
functionalities specifically related to TeamBuilder Online and
the CareerBuilder Network product/service. At such meetings,
ADP will be able to provide its input into the Company's
product planning processes.
The Company agrees to grant to ADP reasonable access to its
Senior Vice President of Sales to allow ADP regular
opportunity to provide input regarding the direction of the
Company's product development."
10. A new Section 13 is hereby added to the Agreement and shall read in
its entirety as follows:
"13. Millennium Compliant. The Company hereby represents and
warrants that TeamBuilder, TeamBuilder Online, CareerBuilder
and related products and services (the "Products") are and
shall be Millenium Compliant. For purposes of this Section 13,
"Millenium Compliant" shall mean the ability to provide the
following functions: (a) consistently process date information
before, during and after January 1, 2000 including but not
limited to accepting date input, providing date output,
performing calculations on the dates or portions of dates,
calculating leap years; (b) function accurately with its
documentation and without interruption associated with the
advent of the new century; (c) respond to two-digit year date
input in a way that resolves any ambiguity as to century in a
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disclosed, defined and predetermined manner; and (d) store and
provide output of date information in ways that are
unambiguous as to century. At ADP's request, the Company shall
provide to ADP test plans and results of the Programs' ability
to comply with the provisions of this section. In the event
that ADP informs the Company of, or the Company learns of, any
failure of the Products to comply with the provisions of this
section, in addition to (and not in lieu of) any other
remedies available to ADP under this Amendment, at law or in
equity, the Company shall promptly remedy the failure
dedicating the resources necessary to effect such remedy, at
no charge to ADP."
11. The section "General Provisions," currently Section 11, is hereby
amended to become Section 14.
12. Effect of Modification. In the event of any inconsistency between
the provisions of the Marketing Agreement and the applicable
provisions of this Agreement, the provisions of this Agreement shall
control in all respects. Otherwise, the Marketing Agreement shall
remain in full force and effect.
13. Successors and Assigns; Governing Law. Subject to the restrictions
in the Marketing Agreement as amended hereby, this Agreement shall
inure to the benefit of and bind the respective heirs, personal
representatives, successors and assigns of the parties hereto and
shall be governed by and constructed in accordance with the laws of
the State of Delaware.
14. Severability; Modifications. Should one or more of the provisions of
this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain
effective and shall be enforceable. This Agreement shall not be
modified without the prior consent of the Company and ADP.
15. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered
shall be deemed an original and such counterparts together shall
constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
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CAREERBUILDER, INC.
By: /s/ James A. Tholen
-------------------------
Name: James A. Tholen
Title: CFO
ADP, INC.
By: /s/ James B. Benson
-------------------------
Name: James B. Benson
Title: President
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