EXHIBIT 10.11
CO-BRAND AGREEMENT
This Co-Brand Agreement, dated between CareerEngine, Inc. ("CareerEngine"), a
New York corporation with its principal place of business at 2 World Trade
Center, Suite 2112, New York, NY 10048 and ((Company)) ("((COMPANY_AKA))"), a
corporation, with its principal place of business at ((Address1)), ((Address2)),
((City)) ((State)) ((PostalCode)).
WHEREAS, CareerEngine possesses a certain expertise in the creation and
development of websites specializing in the provision of career services and is
an ASP (Application Service Provider) offering these and related services to
others ("the ASP Services");
WHEREAS, ((COMPANY_AKA)) owns and operates a website at ((WEBSITE)) (the
"Website"), and wishes to avail itself of CareerEngine's ASP Services;
WHEREAS, ((COMPANY_AKA)) is desirous of having CareerEngine host a co-branded
website incorporating functionality relating to career services and CareerEngine
is desirous of doing so.
NOW, THEREFORE, for good and valuable consideration the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. The Co-Branded Website.
CareerEngine shall create and host a co-branded website incorporating all the
content, tools and functionality from a CareerEngine career site into
((WEBSITE)) frame that includes the logo, navigation bar and the top banner. The
name of the co-branded site will be Career Center on ((WEBSITE)) (the
"Co-Branded Website"). CareerEngine will develop and design the Co-Branded
Website with a look and feel compatible with the ((COMPANY_AKA)) Website. The
Co-Brand Website shall be subject to approval by ((COMPANY_AKA)) which approval
shall not be unreasonably withheld. CareerEngine shall keep the CO-Branded
Website continuously updated so that the Co-Branded Website reflects the current
content and any new functionality on the CareerEngine career Sites.
2. Services
CareerEngine will develop, operate and supply the Co-Branded Website with the
functions typically made available on other co-branded sites operated by
CareerEngine and will contain the words "Powered by CareerEngine Solutions" at
the bottom of the home page. The link from the ((COMPANY_AKA)) website to the
Co-Branded Website (the "Gateway Page") shall apprise users of the availability
of the Co-Branded Website and shall contain such characteristics as agreed upon
by CareerEngine and ((COMPANY_AKA)). CareerEngine shall develop a new Career
Service Website for ((COMPANY_AKA)) (the " Career Website") which will contain
relevant career service and recruiting information with a look and feel similar
to the Website.
CareerEngine will operate the Co-branded Website and maintain and keep up to
date all job listing and advertising placements. CareerEngine will also provide
the additional support services described in Addendum A
3. Content of Co-Branded Website
All content on the Co-Branded Website will be subject to ((COMPANY_AKA))'s prior
reasonable approval. This includes, without limitation, text, privacy policy,
graphics, advertising and sponsorship. Functionality, look and feel operation
and of the Co-Branded Website will also be subject to ((COMPANY_AKA))'s prior
reasonable approval.
4. ((COMPANY_AKA)) Content and Trademarks
((COMPANY_AKA)) represents and warrants that it owns all worldwide right, title
and interest in and to, or has the right under valid licenses, any content
contributed to the Co-Branded Website by ((COMPANY_AKA)) ("((COMPANY_AKA))
Content"), and all related information, data layouts and formats made available
by ((COMPANY_AKA)) hereunder, including, but not limited to, all copyrights
(including without limitation, audiovisual works and moral rights), patents, and
other worldwide intellectual property rights therein. All rights are reserved.
((COMPANY_AKA)) and its licensors own all right, title, and interest in and to
their respective trademarks, service marks, and logos ("Marks") worldwide.
5. Trademark License
Subject to the terms and conditions of this Agreement, ((COMPANY_AKA)) hereby
grants to CareerEngine a non-exclusive, worldwide license to use and publicly
display the ((COMPANY_AKA)) Mark in connection with the ((COMPANY_AKA)) Content
and in connection with the Licensor links during the term of this Agreement,
provided that such use is in accordance with ((COMPANY_AKA)) then current
trademark usage guidelines, which guidelines will be provided to CareerEngine.
((COMPANY_AKA)) and its licensors may modify the Marks at any time upon written
notice to CareerEngine. CareerEngine shall not form combination marks with the
Marks or modify the Marks without ((COMPANY_AKA))'s written approval.
CareerEngine hereby assigns to ((COMPANY_AKA)) and its licensors, as the case
may be, all right, title and interest in the Marks, together with the goodwill
attaching thereto, that may inure to it in connection with this Agreement or its
use of the Marks hereunder.
6. Financial Consideration
In consideration for CareerEngine's provision of the services and the
performance of its other obligations under the Agreement, CareerEngine shall
collect all revenues of the Co-Branded Website and will be entitled to receive a
percentage of net revenues, as defined in Addendum B, in an amount set forth in
Addendum B.
7. Term
Subject to the terms and conditions hereof, the term of this Agreement shall be
for the period commencing on the date that site becomes operational as set forth
in a notice by CareerEngine and ((COMPANY_AKA)) (the "Commencement Date") and
shall be automatically renew for successive one-year renewal terms unless
otherwise terminated by either party at least sixty (60) days notice prior to
the initial term or any renewal term in writing ("Renewal Term").
8. Obligations of CareerEngine.
During the term of this Agreement, CareerEngine hereby covenants and agrees to
provide the services defined in Section 2 at its reasonable sole cost.
Additionally, CareerEngine will utilize its internal staff and network
distribution partners, to market and sell job postings, resume connections and
featured employers (the "Products"). The job posting criteria can be revised at
any time upon the mutual agreement of both parties. Any job posting that does
meet the criteria as agreed upon by both parties shall be removed.
((COMPANY_AKA)) will set the rates for the Products, using the input and advise
of CareerEngine.
CareerEngine shall be responsible for providing the Services consistent with
industry standards, except as provided in Addendum C. CAREERENGINE DISCLAIMS ALL
OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE.
9. Obligations of ((COMPANY_AKA)).
During the term of this Agreement, ((COMPANY_AKA)) hereby covenants and agrees
to maintain the hyperlink between the home pages and all main navigation views
of ((COMPANY_AKA))'s website and the Co-Branded
website and to actively promote to the extent it deems appropriate the use of
such hyperlink for employment search opportunities. Additionally,
((COMPANY_AKA)) agrees to marketing and sell the Products
((COMPANY_AKA)) shall also be responsible for the following and any additional
obligations that may be outlined in Addendum C:
a. CareerEngine will allow ((COMPANY_AKA)) to review the site before the
agreed upon launch date. This is Milestone 3 and is stated in the
CareerEngine Network Proposed Project Flowchart and timeline. See
Addendum D for details. Note: the site review by((COMPANY_AKA)) should
take place ten (10) business days before the scheduled launch date and
may take up to 5 business days to review and implement. This review
will only be an editorial review, which only includes text changes and
"look and feel" changes. Any component development or component
changes requiring further development must be surfaced at Milestone 2.
see Addendum D for details. If ((COMPANY_AKA)) does have additional
component changes in Milestone 3, those changes will not be made until
after the Launch Date. If ((COMPANY_AKA)) does not complete its
editorial review within the five (5) business days allotted, the
Launch date will slip accordingly. CareerEngine is not responsible for
this delay.
b. CareerEngine must know within the first ten (10) days of the project
launch whether ((COMPANY_AKA)) would like to mask the URL to
CareerEngine's hosted career site.
i. CareerEngine recommends that((COMPANY_AKA))set up a site called
careers.((COMPANY_AKA)).com
ii. CareerEngine does not support framesets for URL masking
c. Site Information
i. Legal pages - the legal papers on the new career site will point
directly to CareerEngine Legal content
ii. Press Releases - CareerEngine will link directly
to((COMPANY_AKA))Press releases
iii. About Us Section - CareerEngine will link directly
to((COMPANY_AKA)) About Us Section. ((COMPANY_AKA)) will provide
CareerEngine with the necessary information on the About Us and
CareerEngine will also insert CareerEngine's About Us content on
the About Us page hosted by CareerEngine.
iv. Home Button - CareerEngine will create a Home button to link
directly to((COMPANY_AKA))Home Page.
d. Process
i. Attached as an Addendum D is a general overview of how
CareerEngine proposes to build the site. Note: customer
communication is vital to keeping the project on track and on
time
a. if CareerEngine does not receive timely (read within 24
hours) response from requests to ((COMPANY_AKA)), the
project may slip beyond the launch date.
b. Launch is contingent upon adherence to the process in
Addendum D and timely response from((COMPANY_AKA))
ii. CareerEngine will test its site and content on the two newest
versions of Internet Explorer and Netscape Navigator only.
iii. Start date will not commence until the following requirements are
obtained from((COMPANY_AKA)):
b. Completed Client Information Sheet/ Questionnaire and Credit
application - this information sheet contains all pertinent
contact information and technical information necessary to
prepare for the site. The contact information will include
those persons responsible for the technical integration of
the CareerEngine career site into the site of ((WEBSITE)).
c. Requirements. This contract contains all of the overall
requirements set forth by ((COMPANY_AKA)). By executing this
contract, ((COMPANY_AKA))agrees that the above requirements
and deliverables will be provided by CareerEngine. Any
additional enhancements and changes will not be required by
CareerEngine to deliver.
d. Receipt of the initial setup fee.
iv. CareerEngine will, however, attempt to fulfill such additional
requests to the best of its ability given the time and resources
allowed. However, CareerEngine will not be held accountable for
any additional features other than the features explicitly stated
above.
v. Launch date will be thirty-one (31) calendar days from the start
date unless otherwise noted in wring, but CareerEngine should be
liable if the Launch date is delayed.
e. Post Launch
i. Once the ((COMPANY_AKA)) career site is launched to the public,
all inquiries, issues or requests with respect the operations of
such site will be assigned to and should be directed to a
CareerEngine Account manager.
ii. Additional enhancements and changes following the launch
a. Any additional enhancements and changes after the launch which
were not defined in this agreement should be directed to your
account manager.
b. CareerEngine will perform enhancements and changes on behalf of
((COMPANY_AKA)) no earlier than sixteen (16) calendar days
following the launch date.
c. Any enhancements and changes will be performed by CareerEngine at
the hourly rate of $175 per hour. In addition, the enhancements
may require an increase in the amount of the monthly hosting and
maintencae fee in an amount to be set forth in a notice delivered
by CareerEngine to ((COMPANY_AKA)). The rate is based on a four
(4) hour minimum for a CareerEngine IT Representative.
10. Compliance With Laws.
((COMPANY_AKA)) shall not use or permit its end users to use the Services in any
manner that violates any applicable laws or CareerEngine's use policies,
infringes on the rights of others or interferes with users of the CareerEngine
network or other networks, including, without limitation, distribution of chain
letters or unsolicited bulk electronic mail (spamming), distribute or release
computer worms and viruses, use a false identity, attempt to gain unauthorized
entry to any site or network, distribute child pornography, obscenity or
defamatory material, or infringe patents, copyrights, trademarks or other
intellectual property rights.
12. Limitation of Liability.
In no event shall CareerEngine's liability to ((COMPANY_AKA)) arising out of a
breach of this agreement exceed the total amount of one monthly fee. In no event
will either party be liable for any consequential, incidental, indirect, special
or punitive damages whatsoever.
11. Termination.
a. Notwithstanding Section B hereof either party may terminate this
Agreement upon the occurrence of any of the following events by giving
written notice to the other party (the Defaulting Party) not less than
thirty (30) days prior to the effective date of such termination as
specified in the notice: (i) any material breach by the defaulting
party of this agreement, which breach remains uncured for a period of
thirty (30) days after the giving notice to the Defaulting Party of
its breach (ii) any voluntary or involuntary filing bankruptcy,
reorganization or receivership or under similar laws for the
protection of creditors, by or directed against the Defaulting Party
of any of its assets for the benefit of creditors; or any liquidation
or dissolution of the Defaulting Party.
b. Upon the expiration of the term or any termination of this Agreement,
all amounts owed by one party to the other party under this Agreement
shall become immediately due and payable
i. Section 13, 15, 17 and 18 shall survive the expiration of the
Term or any termination of this agreement
c. Upon the expiration of the term or any termination of this Agreement,
each party agrees to promptly return to the other party, or to destroy
at such other party's election all data, records and materials of such
other party, if any, in its possession.
12. Notice
All notices required to be given hereunder shall be in writing and shall be
deemed given upon personally delivered to the party to be notified or by a
nationally recognized courier upon proof of delivery and addressed to the party
to be notified at address indicated for such party below or such other address
as such party may designate by ten days advanced written notice to the other
party:
((Address1))
((Address2))
((City)),((State))((PostalCode))
((WorkPhone))
CareerEngine
Two World Trade Center
Suite 2112
New York, NY 10048
13. Force Majeure
Neither party shall have any liability for any failure or delay in
performance of any of its obligations hereunder which are not within its direct
or reasonable control and which is caused by any: act of God; act of a
governmental or military authority or agency; fire, flood, earthquake, windstorm
or other natural calamity, labor disturbance, lockout or strike; war; riot;
inability to obtain labor, materials or transportation on time;
telecommunications failure or interruption of service, or data/word-processing
failure or interruption of service (whether of hardware, software or both) or
any other cause beyond its reasonable control, whether similar or dissimilar to
any of the recited events..
14. Assignment
Neither this Agreement nor any rights or obligations hereunder shall be
assigned, sublicensed or otherwise transferred, in whole or in part, by either
party without the other party's prior written consent except as otherwise
provided herein.
15. Non-Solicitation of Employees
Neither party may solicit for employment the employees of the other party during
the term of this Agreement and for a period of twelve (12) months after
termination of this Agreement without the express prior written consent of the
other party, which shall not be unreasonably withheld.
16. General Provisions
a. Should any provision of this Agreement be held to be void, invalid or
illegal by arbitration or a court of competent jurisdiction, the
validity and enforceability of the other provisions shall not be
affected thereby.
b. This Agreement embodies the entire understanding between the parties
with respect to the subject matter hereof, and supersedes any and all
prior understandings and agreements, either oral or written, relating
thereto.
c. This Agreement is binding on the parties hereto and their respective
successors and permitted assigns.
d. Any amendment hereof must be in writing and signed by both parties.
e. Failure of either party to enforce any provision of this Agreement
shall not constitute or be construed as a waiver of such provision nor
of the right to enforce such provision.
f. The headings and captions contained in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
17. Indemnification
((COMPANY_AKA)) will defend, indemnify and save CareerEngine harmless from and
against any and all claims, losses and liability relating to any infringement or
threatened infringement of any patent, copyright or trademark, by use of the
((COMPANY_AKA)) trade name as permitted under this agreement or any loss or
damage to property or any loss or damage arising from bodily injury, including
death, when such loss or damage is caused by the negligent acts or omissions or
intentional wrongdoing of ((COMPANY_AKA)) its employees, subcontractors or
agents and which arises out of the performance of this Agreement, provided that
CareerEngine gives ((COMPANY_AKA)) prompt written notice of any such claim of
loss or damage and allows CareerEngine to control, and fully cooperate with
((COMPANY_AKA)) in, the defense and all related settlement negotiations and
provided further the failure to give prompt notice shall not relieve
((COMPANY_AKA)) of its liability hereunder accept to the extent that such
failure results in damage, prejudice or injury to ((COMPANY_AKA))
CareerEngine will defend, indemnify and save ((COMPANY_AKA)) harmless from and
against any and all claims, losses and liability relating to any infringement or
threatened infringement of any patent, copyright or trademark, by use of the
CareerEngine trade name as permitted under this agreement or any loss or damage
to property or any loss or damage arising from bodily injury; including death,
when such loss or damage is caused by the negligent acts or omissions or
intentional wrongdoing of CareerEngine, its employees, subcontractors or agents
and which arises out of the performance of this Agreement, provided that
((COMPANY_AKA)) gives CareerEngine prompt written notice of any such claim of
loss or damage and allows ((COMPANY_AKA)) to control, and fully cooperate with
CareerEngine in, the defense and all related settlement negotiations, and
provided further the failure to give prompt notice shall not relieve
CareerEngine of its liability hereunder accept to the extent that such failure
results in damage, prejudice or injury to CareerEngine.
18. Ownership of Property
a. CareerEngine acknowledges and agrees that ((COMPANY_AKA)) shall be the
sole owner of all Property and/or Intellectual Property embodied in
the ((COMPANY_AKA)) Career Website, including, without limitation, any
enhancements thereof, and including, but not limited to, all job
posting data, resumes, content and any trademarks, service marks and
logos, whether now existing or hereafter arising. CareerEngine further
agrees that it does not have, nor in the future claim to have, any
rights or interests of any nature whatsoever in such Property and/ or
Intellectual Property of ((COMPANY_AKA))
b. ((COMPANY_AKA)) acknowledges and agrees that CareerEngine shall be the
sole owner of all Property and/or Intellectual Property embodied in
the CareerEngine service, including, without limitation, any
enhancements thereof, and including, but not limited to any software
and programming code, trademarks, service marks and logos, whether now
existing or hereafter arising.
((COMPANY_AKA)) further agrees that it does not have, nor in the
future claim to have, any rights or interests of any nature whatsoever
in such Property and/or Intellectual Property of CareerEngine.
c. Any use by a party hereto of any mark or logo of any other party shall
inure exclusively to the benefit of the party owning the mark or logo.
19. Status of the Parties
The relationship between CareerEngine and ((COMPANY_AKA)) hereunder is solely
that of independent contractors. No party shall be considered to be an employee
or agent of the other (except for those purposes specifically enumerated in this
Agreement); nor shall anything contained in this Agreement be construed to
create any partnership or joint venture between or among the parties.
20. Counterparts and Signatures
This agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which taken together shall constitute one
agreement. Facsimile signatures shall have the same force and effect as original
signatures. This Agreement shall be of force and effect upon the execution and
delivery to both parties of a fully executed counterpart of same.
In Witness Whereof, the parties have executed this Agreement in duplicate, each
to have the full force and effect of the original for all purposes, all as of
the Effective Date.
CareerEngine, Inc. ((Company))
By:__________________________ By:___________________________
Name: _______________________ Name: ________________________
Title: ______________________ Title: _______________________
Date: _______________________ Date: ________________________
Initial ___________ Initial ___________
((COMPANY_AKA)) Initial _______
CareerEngine Initial _______
ADDENDUM A
Additional Service
A. CareerEngine will be the Sales Contact for all job postings, banner ads,
sponsorships, etc. on the career site for ((COMPANY_AKA)), whereas
CareerEngine's phone number and e-mail address will be posted to the career
site.
B. The CareerEngine Sales force will be available to((COMPANY_AKA))clients
between the hours of 9:00 am and 5:00 pm, Monday through Friday (EST).
((COMPANY_AKA)) Initial _______
CareerEngine Initial _______
ADDENDUM B
Financial Consideration
1. Percentage of Revenue During the term of the Agreement, CareerEngine and
((COMPANY_AKA)) shall share equally (__%/ __%) the
"Net Revenue" generated at the ((COMPANY_AKA))
Website from Products (job postings, resume
connections, featured employers, advertisement and
all other revenue sources). "Net Revenue" is
defined as gross revenue from the Products and
minus all distribution fees, all agency
commissions, all payment processing fees,
including but not limited to those incurred for
online processing of credit cards and ACH
debiting.
2. Payments CareerEngine shall remit payment to
((COMPANY_AKA)) within 30 business days after the
end of each calendar month for ((COMPANY_AKA))'s
percentage of Net Revenues received in the prior
month.
3. Reporting CareerEngine will supply((COMPANY_AKA))with
detailed monthly reports calculating the Net
Revenue and tracking the source of the Net Revenue
4. Review Both Parties agree to review and discuss the
percentage of revenues shared by each party at the
end of the initial term and at the end of each
renewal term
((COMPANY_AKA)) Initial _______
CareerEngine Initial _______
ADDENDUM C
Additional Obligations of CareerEngine& ((COMPANY_AKA))
A. NONE.
((COMPANY_AKA)) Initial _______
CareerEngine Initial _______
Addendum D
Project flowchart and Timeline