BEYOND! JOBBOARD
TERMS AND CONDITIONS
THIS AGREEMENT is entered into as of the Effective Date by and between Beyond.com, Inc. a Delaware corporation, with its principal place of business at 1060 First Avenue, Suite 100, King of Prussia, PA 19406 (hereinafter known as “Beyond”) and Client.
RECITALS
The following provisions form the basis for and are hereby made a part of, this Agreement:
A. Beyond has developed a system to store, classify and categorize career, entrepreneurial and employer related content web sites and URLs on the World Wide Web (“WWW”) and provides services relating to the matching of candidates with employers and employers with candidates.
B. Client has developed and operates communities and World Wide Web sites, which can currently be accessed through Client software.
C. Client desires to offer worldwide visitors to its domain destination sites defined in this Agreement business professional information and content.
D. Client desires to outsource to Beyond the hosting, operation, and maintenance of the Business Services functionality that will be integrated into the Client community, on an exclusive basis.
E. Client and Beyond desire to create co-branded web sites hosted by Beyond, and to offer Client End Users career and business related services on the Web.
F. Client and Beyond agree that the following terms and conditions shall govern the establishment, structure and operation of such co-branded sites and the other matters set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties do hereby agree as follows:
1. DEFINITIONS; RULES OF CONSTRUCTION.
1.1 Definitions. For purposes of this Agreement the following terms shall have the meanings as described below:
“Application Software” means the computer programs in machine readable object code form for implementing and operating an online Internet job placement and referral site that is made available to End Users over the Internet.
“Business Services” means any/all products and services sold through or in connection with the Co-Branded Properties.
“Co-Branded Properties” means those pages that identify Beyond and ProfessionalClient and offers the End User use of the Marketplace job search and employer portal functionality. These pages are accessed respectively through the URL’s of the applicable Marketplace homepages, or other URL’s substantially similar and registered to ProfessionalClient, and are hosted on the Beyond servers and shall include at least the following minimum functionality: permit End Users to view candidate resumes, post resumes, store resumes, make job postings, respond to job postings, monitor job postings and manage job postings.
“Content Sponsor” means a party that purchases advertising and/or other products and services, including content sponsorships, on and in connection with the Co-Branded Properties.
“Data” means the content, records and data uploaded to the Co-Branded Properties or to any other ProfessionalClient Website by ProfessionalClient and/or End Users using the Application Software or website.
“End User” means a person who accesses either ProfessionalClient’s Websites or the Co-Branded Properties.
“Existing Clients” mean any clients under paying contract with a respective party before the Effective Date.
“Marketplace” means one of ProfessionalClient’s Website professional communities. For the purposes of this Agreement, the term “Marketplace” does not mean or include the Co-Branded Properties.
“Intellectual Property Rights” means trade secrets, patents, copyrights, trademarks, trade dress, know-how and similar rights of any type under the laws of any governmental authority including, without limitation, all applications and registrations relating to any of the foregoing.
“Internet Sale” means any online sale as a direct result of the ProfessionalClient portals and not the result of any individual sales representative.
“Proprietary Feature” shall mean any name, trademark, service mark, trade name, domain name, navigational element, copyright, or logo that is proprietary to Beyond or ProfessionalClient, respectively.
“URL” or “Uniform Resource Locator” means the address of a Website on the World Wide Web, an example of which is the URL for the ProfessionalClient service available at its web sites.
“Website” means a repository of data and other information in electronic form residing on one or more servers that can be accessed via the WWW by an End User.
“Within ProfessionalClient Sites” refers to any previous ProfessionalClient Customer and any lead, which originated from one of the Co-Branded Properties.
“World Wide Web” or “WWW” means the Internet-based distributed information service that utilizes the hypertext transfer protocol (http) or any purchased protocol.
1.2 Rules of Construction. The words “party” or “parties” when used herein refer, respectively, to a party and to both of the parties to this Agreement. The words “hereof,” “herein,” “hereunder” and other words of similar import refer to this Agreement as a whole, including any attachments hereto, as the same may from time to time be amended or supplemented and not to any subdivision contained in this Agreement. The word “including” when used herein is not intended to be exclusive and in all cases means “including without limitation.” References herein to section, subsection, attachment or exhibit shall refer to the appropriate section, subsection, and attachment or exhibit in or to this Agreement. The descriptive headings of this Agreement are inserted for convenience of reference only and do not constitute a part of and shall not be utilized in interpreting this Agreement.
2. SALES AND LEAD REFERRAL PROCESS
2.1 Beyond will provide a sales team for the Business Services that Beyond provides.
2.2 Revenue share for the various sales possibilities are documented in this Agreement.
3. ProfessionalClient OBLIGATIONS AND RESPONSIBILITIES
3.1 Design Changes to the ProfessionalClient Websites. ProfessionalClient shall make changes mutually agreed upon and reasonably necessary for providing links to the Co-Branded Properties.
3.2 ProfessionalClient will maintain the Co-branded portals using online tools provided by Beyond. These tools control the look, feel and data display options for each portal.
3.3 Marketing. ProfessionalClient will market Beyond Business Services and the Co-Branded Properties within the Marketplace including navigation buttons on the Home navigation bar and prominent placement of other Business Services links, buttons and/or banners on the Home Page and all other pages.
3.4 Partner/Relationship Manager. ProfessionalClient will designate an employee to be the primary contact for all coordination, support, administration, payment and other issues related to this Agreement.
4. BEYOND OBLIGATIONS AND RESPONSIBILITIES
4.1 Co-Branded Properties Hosting. Beyond.com will launch, host the solution and provide tools for managing and maintaining, and provide technology reasonably necessary for the operation of the Co-Branded Properties within twenty-one (21) days of the Effective Date.
4.2 Design. Beyond shall provide tools to design the Co-Branded Properties based on the ProfessionalClient Specifications. This capability currently exists with the Beyond Platform.
4.3 Beyond will assign a contact that ProfessionalClient may call for issues. This single point of contact will work within Beyond to help resolve problems.
4.4 Support and Service. Beyond will operate, maintain, and correct system errors in the Co-Branded Properties in accordance with the specifications contained within this Agreement.
4.5 Backup. Beyond represents and warrants that it will perform a system backup on a daily basis. Beyond will maintain a copy of at least one backup until after the next daily backup is performed and completed. Beyond will use its best efforts to maintain data integrity in any backup.
4.6 Coordination. Beyond will coordinate with ProfessionalClient on all placement of text links, content, and advertising on the Co-Branded Properties and links from the Marketplaces to the Co-Branded Properties.
4.7 Portal Enhancements. Feature enhancements are at the sole discretion of Beyond and will be done in a timely fashion to minimize downtime. ProfessionalClient may choose to engage Beyond to develop enhancements to Beyond software at their sole discretion.
? Any ProfessionalClient enhancement requests will be reviewed by Beyond for inclusion into the portal software and services. Beyond will respond to ProfessionalClient as to the priority and timeline of enhancement integration including notifying ProfessionalClient if enhancement will not be included in a future release.
? ProfessionalClient may choose to pay for enhancements based on Beyond reduced consulting rate of $150/hour.
4.8 During the testing phase, any errors that do not have a workaround will be fixed by Beyond without additional cost to ProfessionalClient.
5. REVENUE
5.1 Each respective party will bill, collect, and record all revenue generated from its own sales of advertising and other products and services on and in connection with the Co-Branded Properties.
5.2 The fee schedule is defined as part of this Agreement. The parties agree that the revenue share shall be paid as follows:
ProfessionalClient will receive forty percent (40%) of the revenue generated from Beyond Business Services within ProfessionalClient Sites, however, with regard to any Beyond Business Services purchased by ProfessionalClient within the ProfessionalClient sites via its assigned identifier, ProfessionalClient will receive thirty percent (30%) of the revenue generated from such purchases.
5.3 Revenue is defined as the gross revenue received by Beyond for sale of Business Services with the Co-Branded Properties, less credit card or other transaction fees.
5.4 ProfessionalClient is entitled to a referral fee of 10% Commission on Beyond net revenue generated from any pre-approved and pre-authorized referred client that sells Beyond products and services or utilizes Beyond portal software during the term of this Agreement.
6. PAYMENTS
6.1 Payments. In consideration for the respective obligations of each party to the other party hereto under this Agreement and with respect to the Co-Branded Properties, the parties will remit payment based upon the revenue and fees defined in this Agreement. Payment shall be due the last day of the month following the month in which a particular account receivable had been collected.
6.2 Collection Efforts. Each party will use commercially reasonable efforts to collect the above-described revenue amounts due from its respective clients.
6.3 Manner of Payment. All payments due by either party hereunder shall be payable in U.S. Dollars by check, online banking, or wire transfer to such U.S. bank account as the receiving party specifies.
6.4 Taxes. All payments required under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and other similar charges (“Taxes”). When applicable, such Taxes shall appear as separate items on invoices. Payment of such Taxes and other charges (excluding any taxes based upon the billing/collecting party’s net income) shall be the paying party's sole responsibility. In the event the billing/collecting party is subsequently assessed by any governmental authority for having failed to collect any Taxes from the paying party, the paying party agrees to pay such assessed amounts, including any associated interest or penalties, upon the billing/collecting party's written request.
6.5 Payment Address. Please remit all payments to:
For ProfessionalClient, payments to be sent to contact defined in this Agreement.
For Beyond, payments to be sent to:
Accounts Receivable
Beyond.com, Inc.
1060 First Avenue
Suite 100
King of Prussia, PA 19406
7. PROFESSIONALCLIENT EXISTING CLIENT BASE
7.1 At the option of ProfessionalClient, Beyond.com will have access to some or all of the ProfessionalClient existing client base for the purpose of re-selling and up selling these clients.
7.2 Within reason and at the discretion of Beyond, Beyond will not bill any such Existing ProfessionalClient Clients any additional charges, for the performance of ProfessionalClient’s existing contractual obligations to such Existing ProfessionalClient’s Clients.
8. PROPRIETARY RIGHTS
8.1 ProfessionalClient and Beyond. Each party owns and shall retain all right, title and interest in its intellectual property, including but not limited to its names, logos, trademarks, service marks, copyrights and proprietary technology, currently used or which may be developed and/or used by it in the future.
8.2 Data. Data brought to Beyond (“ProfessionalClient Data”) shall remain the property of ProfessionalClient and shall be removed by Beyond from the network upon termination of this Agreement and Beyond shall retain no copies of the ProfessionalClient Data. Data that enters the network after the initial installation (“Shared Data”) shall be co-owned by ProfessionalClient and Beyond with equal rights to retain the Shared Data following termination of this Agreement and shall not owe the other party any accounting or other fee for use of the Shared Data All ProfessionalClient Data and Shared Data shall be tagged or otherwise maintained to allow the identification and total extraction of the Data from the system upon termination of this Agreement or as otherwise permitted by this Agreement.
9. EXCLUSIVITY
During the term of this agreement, ProfessionalClient will use Beyond as the exclusive portal to its Marketplace and will display and advertise the Co-Branded Properties in accordance with this agreement on all Marketplace properties defined in this Agreement.
10. TERM AND TERMINATION
10.1 Term. This Agreement shall commence on the Effective Date and will remain in full force and effect for a period of one (1) year, unless terminated earlier in accordance with the provisions contained in this Agreement (the “Initial Term”). Term will automatically renew unless either party provides 30 days written notice of their intent to terminate the Agreement.
10.2 Other Events of Termination. This Agreement shall be subject to termination upon the occurrence of the following events:
if either party hereto defaults on any of its material obligations, representations or warranties under this Agreement, the non-defaulting party shall have the right, exercisable in its sole discretion, to terminate this Agreement by written notice describing with reasonable specificity the nature of the default and requesting that it be cured, unless within thirty (30) calendar days after written notice of such default the defaulting party remedies the default;
if (a) either party files a petition for bankruptcy or is adjudicated a bankrupt; (b) a petition in bankruptcy is filed against either party; (c) either party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy law; (d) either party discontinues its business; or (e) a receiver is appointed for either party or its business, then the other party shall have the right to terminate this Agreement immediately upon written notice.
Beyond may suspend this Agreement if any payment under this Agreement is past due by ProfessionalClient for more than ten (10) days. Beyond may terminate this Agreement if any payment under this Agreement is past due by ProfessionalClient for more than thirty (30) days. Beyond may suspend this Agreement for any reason by providing ten (10) days written notice to ProfessionalClient.
10.3 Effect of Termination. Termination of this Agreement by either party hereto shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party hereto from any liability for breach of such party's obligations under this Agreement.
11. CONFIDENTIALITY
11.1 Except as otherwise provided herein, Beyond and ProfessionalClient each agree that all written information communicated to it by the other, whether before the Effective Date or during the term of this Agreement, and (a) marked as confidential or proprietary; or (b) regarding customers; human resources; financial costs, expenses or operations; inventory, purchasing or merchandising; or plans, strategies or forecasts (hereinafter collectively referred to as "Confidential Information") shall be used only for the purposes of this Agreement, and that no Confidential Information of the other party shall be disclosed to outside parties by the recipient party, its agents or employees without the prior written consent of the other party. The parties agree to keep completely and unconditionally confidential the names of any institutions, corporations, investors, organizations, individuals, or groups of individuals introduced by either of the parties or their associates. Further, each party agrees that it, or any of its divisions, subsidiaries, affiliates, employees, agents, or consultants will not have any direct or indirect contact with any business institution, investor(s), individual(s), and or other such individuals referenced or introduced by the other party, without the express, written consent of the introducing party.
11.2 Each party agrees to take all reasonable precautions to prevent the disclosure to outside parties of Confidential Information of the other party, including without limitation, the terms of this Agreement, except for information which is (i) not marked as confidential or proprietary or included in the categories identified above, (ii) already known by or available to the other party or its parent or subsidiaries at the time of disclosure; (iii) independently generated by either of the parties hereto or its parent or subsidiaries and not derived from the Confidential Information of the other party, (iv) generally known or available to the public, or which may later become generally known or available to the public except where such knowledge or availability is the result of an unauthorized disclosure by one of the parties hereto, (v) disclosed to the other party or its parent or subsidiaries by a third party who is lawfully permitted to make such disclosure, (vi) made available by the other party to a third party without a similar restriction; or (vii) required to be disclosed by either party or their parent or subsidiaries by law, regulation, court order or other legal process.
11.3 This obligation of confidentiality shall cease two (2) years after the return of such Confidential Information to the disclosing party by the receiving party or two (2) years after the termination of this Agreement, whichever is later. The foregoing notwithstanding, Beyond will have the right to identify that ProfessionalClient is a customer of Beyond and may utilize Customer Content for statistical and comparative purposes provided it is not disclosed in any manner which could reasonably identify ProfessionalClient.
11.4 Noncompetition/Nonsolicitation: The receiving party agrees not to divert or attempt to divert business customers or prospects of the disclosing party based on information gained as a result of discussions with the disclosing party. Without prior written consent, for a period of 12 months, the parties will not solicit, offer to hire, or directly hire any of the officers or employees identified, interviewed, or disclosed in the Confidential Information. Provided, however, that the prohibition shall apply only to specific employment solicitations, but not to general solicitations (such as advertising or offers from placement agencies) or responses to approaches from the company’s employees.
12. INDEMNIFICATION, LIMITATION OF LIABILITY, AND REMEDIES
12.1 ProfessionalClient shall defend, indemnify and hold Beyond and its respective officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from (a) any breach by ProfessionalClient of any warranty, representation, covenant or Agreement contained herein, (b) any alleged or actual infringement by any material provided by ProfessionalClient under this Agreement, including without limitation any intellectual property or proprietary right, privacy right or other right of any third party, (c) the negligence of ProfessionalClient, (d) any injury to Persons or damages to property caused directly or indirectly by the acts or omissions of ProfessionalClient, or (e) the unauthorized use of the Beyond Marks by ProfessionalClient. Beyond reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by ProfessionalClient, but doing so shall not excuse ProfessionalClient’s indemnity obligations. Beyond shall have the right to participate in the defense of all claims pursuant to this section.
12.2 Disclaimer. THE PROVISIONS OF SECTION 12.1 HEREOF REPRESENT EACH PARTY’S RESPECTIVE ENTIRE OBLIGATION REGARDING ANY THIRD-PARTY CLAIMS.
12.3 Limitation of Liabilities. IN NO EVENT SHALL A PARTY TO THIS AGREEMENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IN THE EVENT SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL NOT BE DEEMED TO REDUCE A PARTY’S LIABILITY UNDER THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT. UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT, EACH PARTY’S ENTIRE LIABILITY AND THEIR EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF A CLAIM UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, WILL NOT EXCEED THE GREATER OF (1) $10,000 DOLLARS OR (2) THE COMMISSION, FEE OR OUTSTANDING BALANCES DEFINED UNDER THIS AGREEMENT RELATED TO THE CAUSES OF ACTION ASSERTED. THIS SECTION SHALL NOT APPLY TO CLAIMS COVERED IN SECTION 12.1.
12.4 Remedies Cumulative. Except as otherwise expressly specified herein, the rights and remedies granted to each party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that such party may possess at law or in equity.
13. MISCELLANEOUS
13.1 No Joint Venture. No agency partnership, joint venture or other business relationship shall be construed under, or created by this Agreement. The parties are independent contractors and neither is the agent of the other. Each party shall be solely responsible for the actions of all their respective employees, agents and representatives.
13.2 Governing Law. This Agreement shall be interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles of conflicts of laws, and with the same force and effect as if fully executed and performed therein, and the laws of the United States of America.
13.3 Remedies Cumulative. Except as otherwise expressly specified herein, the rights and remedies granted to each party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that such party may possess at law or in equity.
13.4 Amendment or Modification. This Agreement may not be amended, modified or supplemented by the parties in any manner, except by an instrument in writing signed on behalf of each of the parties by a duly authorized officer or representative.
13.5 Force Majeure. Beyond shall be excused from performance hereunder for the period of time and to the extent that Beyond is prevented from performing the services, in whole or in part, as a result of delays caused by ProfessionalClient, an act of God, war, civil disturbance, court order, labor dispute, third party or vendor non-performance or other cause beyond Beyond’s reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment and such non-performance shall not be a default or a ground for termination.
13.6 Assignment. Neither party shall transfer or assign any rights or delegate any of its obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided, however, that either party may transfer this Agreement without prior written consent of the other to the surviving party in a merger or consolidation, or to a purchaser of all or substantially all of its assets.
13.7 Notices. All notices, requests, demands or other communications under this Agreement shall be in writing and may be sent by mail, facsimile, or an authorized electronic address to the addressee and offices specified below. Either party may change its address for purposes hereof upon prior notice to the other party. Notices hereunder shall be directed:
If to Beyond, to:
Beyond.com, Inc.
Office of the General Counsel
1060 First Avenue
Suite 100
King of Prussia, PA 19406
For ProfessionalClient, notices to be sent to contact defined in this Agreement.
13.8 Non-Disparagement. ProfessionalClient (including its directors and executive officers and other individuals authorized to make official communications on ProfessionalClient’s behalf) will not disparage Beyond, any of its directors, officers, agents or employees, or its performance, products or services, or otherwise take any action which could reasonably be expected to adversely affect Beyond’s reputation. Similarly, Beyond will not disparage ProfessionalClient or any of its directors, officers, agents or employees or otherwise take any action which could reasonably be expected to adversely affect the reputation of ProfessionalClient or any of its directors, officers, agents or employees.
13.9 Entire Agreement. This Agreement (including the Exhibits attached hereto) represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings, written or oral between the parties with respect to the subject matter hereof.
13.10 Waiver. The party entitled to the benefit thereof may waive any of the provisions of this Agreement. Neither party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
13.11 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
13.12 Severability. If the application of any provision or provisions of this Agreement to any particular facts of circumstances shall be held to be invalid or unenforceable by any court of competent jurisdiction, then: (i) the validity and enforceability of such provision or provisions as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby; and (ii) such provision or provisions shall be reformed without further action by the parties hereto and only to the extent necessary to make such provision or provisions valid and enforceable when applied to such particular facts and circumstances.
a. Counterparts; Facsimiles. 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 and the same instrument. Each party shall receive a duplicate original of the counterpart copy or copies executed by it. For purposes hereof, a facsimile copy of this Agreement, including the signature pages hereto, shall be deemed to be an original. Notwithstanding the foregoing, the parties shall each deliver original execution copies of this Agreement to one another as soon as practicable following execution thereof.
b. Survival. All representations and warranties, indemnification obligations, confidentiality provisions and transfer assistance provisions shall survive the termination of this Agreement.
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