SALES & MARKETING AGREEMENT
THIS AGREEMENT is made and entered into as of October 13,
1999, ("the Effective Date") by and between WorkLife Solutions, Inc., a Delaware
corporation ("WorkLife"), and E-Cruiter.com, Inc., a corporation incorporated
under the laws of Canada ("E-Cruiter").
WHEREAS, WorkLife specializes in the design, development and
installation of Internet solutions for career management and maintains a site on
the World Wide Web located at www.worklife.com, and manages the Career Channel
for AltaVista, located at www.altavista.com;
WHEREAS, E-Cruiter is a leading provider of Web-based job
posting and applicant management solutions that allow companies to utilize
Internet-based recruiting and manage the hiring process;
WHEREAS, WorkLife and E-Cruiter desire to enter into a Sales
and Marketing Agreement (the "Agreement") by which they share certain technology
and jointly promote, develop, and distribute certain services and products;
NOW, THEREFORE, in consideration of the mutual promises and
conditions set forth in this Agreement, the parties hereby agree as follows:
1. Definitions.
1.1 "E-Cruiter Code Base" shall mean E-Cruiter's current and
future shipping product set.
1.2 "E-Cruiter Solutions" shall mean (i) E-Cruiter Express,
targeted to individual recruiters on a single user basis, providing features
such as job posting, applicant response, communications with applicants, and
administration of accounts; and (ii) E-Cruiter Enterprise, targeted to
corporations or workgroups and other multiple users, providing various of the
above features as well as sharing of candidate files, job descriptions, and
similar material.
1.3 "Helius Platform" shall mean the NT, SQL-Server7,
COM-based architecture and software that may be incorporated into future
E-Cruiter products.
1.4 "Party's Brand Features" shall mean a party's trademarks,
trade names, service marks, service names and distinct brand elements that
appear from time to time in connection with their properties, products, ventures
and services worldwide and are protected under state, United States or other
jurisdiction's trademark or copyright law or as to which the party has
established trademarks or trade dress rights, including any modifications to the
foregoing, that may be created during the term of this Agreement.
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1.5 "Party's Brand Guidelines" means the guidelines for use of
a Party's Brand Features, which may be prescribed by that party from time to
time.
1.6 "Precision Matching Technology" shall mean technology and
software designs, implementation, data schema and plans for matching a
description to another description, including the matching of candidate skills
and competencies with job descriptions or requisitions.
1.7 "WorkLife Corporate Career Portal Solutions" ("CCPS")
shall mean career channels developed by WorkLife that provide career development
tools to employees and recruiting tools for Human Resources departments and
hiring management personnel. CCPS can be hosted by either WorkLife as an
Application Service Provider (ASP) or by the corporate customer.
1.8 "WorkLife Internet Career Portal Solutions" ("ICPS") shall
mean career channels developed by WorkLife that are deployed via Internet portal
companies such as AltaVista.
1.9 "Sales" shall mean customer billings excluding billings
attributable to professional services or technical support services,
irrespective of the revenue recognition policies of either party.
1.10 "Hosts" shall mean to be responsible for systems backups,
technical support and necessary updates.
2. Term.
2.1 Initial Term. The initial term of this Agreement shall be
three (3) years from the Effective Date.
2.2 Renewal. The term of this Agreement shall automatically
renew for successive terms of one (1) year each; provided, however, that either
party may elect not to renew this Agreement by providing written notice of its
intent not to renew at least ninety (90) days prior to the commencement of the
renewal term.
2.3 Termination. Either party may terminate this Agreement in
the event that the other party is in material breach provided the terminating
party provides thirty (30) days written notice specifying the breach and the
breach is not cured within those thirty (30) days, or if the breach is not
curable in a commercially reasonable manner within that time frame, the party in
breach commits sufficient resources to the remedial effort to effect a remedy as
soon as reasonably possible.
3. Technology Sharing. The parties agree to disclose to the other
during the term of this Agreement their respective technologies and
capabilities, including but not limited to E-Cruiter's Helius Platform, in the
context of joint exploration of licensing and cross-licensing opportunities of
such technologies and capabilities on mutually beneficial terms.
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4. Grant of License; Distribution.
4.1. WorkLife Corporate Career Portal Solutions. WorkLife
hereby grants E-Cruiter a fully paid, irrevocable, non-exclusive,
non-transferable, worldwide license for the term of this Agreement to use, copy
and distribute CCPS through E-Cruiter's Website or in connection with
E-Cruiter's other products as provided in this Agreement, in joint promotion
with WorkLife.
4.2. (a) E-Cruiter Solutions. E-Cruiter hereby grants WorkLife
a fully paid, irrevocable, non-exclusive, non-transferable, worldwide license
for the term of this Agreement to use, copy and distribute E-Cruiter Solutions
including but not limited to in connection with ICPS and CCPS created by
WorkLife and in connection with joint promotion efforts with E-Cruiter.
4.3 Brand Features. Each party hereby grants to the other an
irrevocable, non-exclusive, non-transferable worldwide license for the term of
this Agreement to use the other Party's Brand Features in connection with the
party's performance of their promotional obligations as set forth in this
Agreement, provided such use is consistent with the Party's Brand Guidelines.
Notwithstanding the foregoing, each party shall promptly cease any use of the
other Party's Brand Features to which the latter objects at any time.
(a) Sales Sharing. E-Cruiter shall pay royalties to WorkLife
and WorkLife shall pay royalties to E-Cruiter as described in paragraphs 4.5
through 4.7 of this Agreement.
(b) Accounting. An accounting of each month's sales by both
parties, in the currency of the individual sales transactions for which sales
sharing is provided for under this Agreement, shall be made within 30 days of
the end of each month, and payments shall be made, based on appropriate currency
conversions, in US Dollars ("USD") within 30 days of the end of the month in
which the sales were billed to customers of either party.
(c) Pricing. Each party shall sell the other Party's products,
as provided in this Agreement, at no less than the minimum prices set forth in
the Minimum Acceptable Price Schedules attached hereto as Appendix A.
4.4 Intentionally Omitted.
4.5 E-Cruiter Selling WorkLife Corporate Career Portal
Solutions.
(a) WorkLife Hosts CCPS Components. E-Cruiter shall
pay WorkLife 65% of CCPS Net Sales for the first year of the customer contract
and 75% of CCPS Net Sales for subsequent years of the customer contract. CCPS
Net Sales shall mean CCPS Gross Sales, less fees to third-party service
providers (which may include providers of training or development services) paid
by E-Cruiter. CCPS Gross Sales shall mean all billings derived from the sale of
WorkLife products through E-Cruiter's Web site, or other direct or indirect
selling efforts.
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(b) E-Cruiter Hosts CCPS components. E-Cruiter shall
pay WorkLife 50% of CCPS Net Sales.
(c) E-Cruiter Authorized Reseller Sells CCPS
Components. WorkLife shall pay E-Cruiter 5% of CCPS Net Sales, concurrent to
E-Cruiter paying to WorkLife royalties payable under paragraphs 4.5(a) and/or
4.5(b) of this Agreement. Payments to the reseller shall be made by E-Cruiter.
4.6 WorkLife Selling CCPS Bundled Together with E-Cruiter
Solutions.
(a) E-Cruiter Hosts E-Cruiter Solution Components.
Where WorkLife sells its CCPS bundled together with E-Cruiter Solutions and
E-Cruiter Hosts the E-Cruiter Solutions component of the CCPS, WorkLife shall
pay E-Cruiter 65% of E-Cruiter Solutions Net Sales in the first year of the
customer contract and 75% in subsequent years of the customer contract.
E-Cruiter Net Sales is defined as gross sales attributable to E-Cruiter
Solutions components less any third-party fees (such as job postings or
selection testing services). E-Cruiter and WorkLife agree to price their
respective components of the bundled solution separately in their respective
sales contracts (the "Sales Contract"). Sales attributable to either party shall
be determined on the basis of the Sale Contracts.
(b) WorkLife Hosts E-Cruiter Solution Components.
WorkLife shall pay E-Cruiter 50% of E-Cruiter Net Sales in all years of the
customer contract.
(c) WorkLife Authorized Reseller Sells E-Cruiter
Solution Components. E-Cruiter shall pay WorkLife 5% of E-Cruiter Net Sales,
concurrent to WorkLife paying to E-Cruiter royalties payable under paragraphs
4.6(a) or 4.6(b) of this Agreement. Payments to the authorized reseller shall be
made by of WorkLife.
4.7 WorkLife Selling Internet Career Portals with
E-Cruiter Solution Components.
(a) WorkLife shall pay to E-Cruiter 50% of Internet
Career Portal E-Cruiting Net Net Sales ("ICPS E-Cruiting Net Net Sales"). ICPS
E-Cruiting Net Net Sales shall mean ICPS E-Cruiting Net Sales minus Marketing
Channel Fees. Marketing Channel Fees means fees paid to Internet portals,
including but not limited to AltaVista, strategic advertisers, or institutions
in connection with the distribution of WorkLife's ICPS. Marketing Channel Fees
shall not exceed 30% of ICPS E-Cruiting Net Sales. ICPS E-Cruiting Net Sales
equals all sales derived from all customers, whether corporate or individual,
who employ E-Cruiter Solutions within ICPS built by WorkLife, minus:
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(i) Third party fees, including fees
paid to job boards;
(ii) Cost of Goods; provided, however,
E-Cruiter shall pay the cost of goods associated with the Hosting of E-Cruiter
Solutions by the parties ("Cost of Goods") unless otherwise agreed. Cost of
Goods shall be equal to 15% of sales derived from all customers deploying
E-Cruiter Solutions within ICPS built by Worklife ("ICPS Gross Sales");
(b) Selling Costs. The cost of sales, including the
cost of handling customer accounts, collections and disbursements, e-commerce
transactions, and telesales ("Cost of Sales"), shall be paid by E-Cruiter unless
otherwise agreed by the parties. Cost of Sales shall be equal to 20% of ICPS
Gross Sales in year one of this Agreement and 15% of ICPS Gross Sales in
subsequent years of this Agreement.
(c) Administration of Accounts. E-Cruiter will
directly administer the number of recruiter bundles sold and sales collection
from recruiters and/or employers. WorkLife or E-Cruiter, in any combination, may
administer the set-up and maintenance of accounts to individuals, recruiters or
employers in the event that such services are developed during the term of this
Agreement.
4.8 Other Business Model(s). In the event that WorkLife and E-Cruiter
agree upon another model for selling and hosting E-Cruiter Solutions components,
the parties will at that time mutually agree upon fair and reasonable terms with
respect to revenue sharing.
4.9 Audit Rights. Each party shall maintain accounting and
administrative records of its sales transactions, Cost of Goods, Cost of Sales
and other costs during the term of this Agreement and for a period of one year
thereafter. At any time during the term of this Agreement, and for a period of
one year thereafter, either party may initiate an independent financial audit
("Audit") of the other party's calculations and payments made in connection with
the terms of this Agreement. The cost of the Audit is to be borne by the
initiating party. The party under audit shall, at such times and in such places
as shall be mutually convenient to the parties, permit auditors to make
photocopies of all documents relating to the Audit.
5. Milestones. The parties agree to use commercially reasonable efforts
to reach the following milestones:
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Alta Vista Launch. Complete the project Oct 8th, 1999
plan and schedule. Identify
resources
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Deliver a joint Technology Plan for Future Dec 17th, 1999
Co-Development
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6. Content Partner Program Purchase. E-Cruiter agrees to purchase the
Employment Classifieds category in WorkLife's Content Partner Program at the
time of the launch of the new E-Cruiting portion of the WorkLife Career Portal
for a minimum of 1,000,000 monthly page impressions on WorkLife's careers home
page on Alta Vista at WorkLife's preferred pricing terms (the "Content Partner
Program Purchase"), for a period of one year; provided, however, that E-Cruiter
may terminate its obligations under this paragraph 6 at any time after three
months after the date of the Content Partner Program Purchase by providing 30
days written notice to WorkLife. Preferred pricing shall not exceed $15,000 USD
per month. Additional impressions in excess of 1,000,000 per month will be
charged at $15 USD per month per thousand, with the total monthly charge not to
exceed $30,000 USD per month.
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7. Promotion; Cooperation. The parties shall engage in the following
individual and joint promotional activities and joint development projects.
7.1 Joint.
(a) Any public announcement relating to this
Agreement or the parties' relationship shall be subject to the parties' mutual
written approval, which shall not be unreasonably withheld or delayed.
(b) The parties shall, within fifteen (15) days of
the Effective Date, meet to prepare a joint promotion campaign publicizing this
Agreement, and make commercially reasonable efforts to include Alta Vista in the
public relations campaign.
(c) The parties shall introduce each other to
potential business customers or partners, including WorkLife's introduction of
E-Cruiter to Alta Vista as soon as is practicable after the Effective Date and
WorkLife's introduction of E-Cruiter to MSN.com upon a determination by WorkLife
that the contributions of E-Cruiter can add value to the existing
WorkLife-MSN.com endeavor.
(d) The parties shall hold joint monthly business
development meetings at mutually convenient locations.
(e) The Parties may refer publicly to this Agreement
as a "Strategic Alliance."
(f) The parties agree to explore mutually beneficial
development projects that may include but are not limited to the following:
(i) Inclusion of Precision Matching
technology from WorkLife, with or without modifications or extensions by either
party, into the E-Cruiter Code Base.
(ii) Development of bridging software to
include WorkLife CCPS components into the E-Cruiter Code Base.
(iii) Examination of Helius Platform as the
architecture on which to develop future releases of WorkLife CCPS or ICPS
products and services.
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(iv) Development of ideas and intellectual
property of either party to add features, such as advanced competency analysis,
assessment, testing and resume building modules into the E-Cruiter Code Base.
7.2 E-Cruiter. E-Cruiter agrees to promote this Agreement in
accordance with a promotional plan to be developed in consultation with
WorkLife. E-Cruiter will work with WorkLife to create badge and content for the
co-branded pages of the ICPS. Other promotional activities may include
advertising in trade publications and career/recruiting Web sites, participation
in trade shows, direct mail campaigns and the hosting of chat sessions for
recruiters.
7.3 WorkLife. WorkLife agrees to promote this strategic
alliance in accordance with a promotional plan to be developed in consultation
with E-Cruiter. The plan may include strategies to create awareness with
analysts, press briefings, press releases, work with AltaVista to promote the
new E-Cruiting offering on the AltaVista home page and the Careers Channel home
page, lead generating activities including chat sessions hosted by and
discussions led by E-Cruiter, and support for E-Cruiter led marketing efforts as
appropriate.
8. Customer Data. The parties agree to promptly share all user and
customer data acquired through any promotional efforts or sales under this
Agreement and both parties shall be considered owners of such data and may make
such use of it as the law allows. The parties agree that they will not resell
this data or share this data with third parties unless mutually agreed and as
permitted by law. The parties shall work together to make appropriate
disclosures to users regarding the use of such data.
9. Exclusivity. Except as otherwise set forth herein, the parties agree
to deal exclusively with the other in the development and sale of Internet
career portals during the term of this Agreement.
10. Intentionally Omitted.
11. Confidentiality and Proprietary Information; Non-disclosure. The
parties acknowledge that during the term of this Agreement they will acquire
proprietary and confidential information about the other, potentially including
but not limited to, business methods, trade secrets, know-how, inventions,
techniques, processes, algorithms, software, source code, designs, schematics,
contracts, customer lists, financial information, sales and marketing
information, and other business information, relating to the operation of their
respective businesses ("Confidential Information"). Confidential Information
includes but is not limited to all material identified in this Agreement as the
material shared, to be shared, licensed, or to be licensed, to or from E-Cruiter
or WorkLife to the other. Each agrees (i) that it will protect the other's
Confidential Information from unauthorized use or disclosure; (ii) that it will
not disclose the other's Confidential Information to any third party without the
other's prior written consent; (iii) that it will take reasonable steps to
ensure that no unauthorized person has access through it to the other's
Confidential Information; (iv) that it will promptly return all tangible or
electronic copies of the other's Confidential Information to such other upon its
request; and (v) that it will only use the other party's Confidential
Information for the purposes set forth in this Agreement. Notwithstanding the
foregoing, Confidential Information does not include any information that (a) is
acquired by a party from any source other than the other party without
restriction as to its use or disclosure; or (b) is or becomes available to the
public other than through a breach of this Agreement by the acquiring party.
This non-disclosure obligation shall survive the termination of this Agreement
for a period of two (2) years.
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12. Ownership.
12.1 Reserved Rights. Each party reserves all rights other
than those expressly granted in this Agreement, and no ownership is transferred
or licenses granted except as expressly set forth in this Agreement.
12.2 Jointly Developed Products. With respect to any
technology developed by either WorkLife or E-Cruiter that either (a) adds new
features to the products of the non-developing party, (b) is software needed to
incorporate WorkLife's products into E-Cruiter's Code Base or E-Cruiter's
services into WorkLife's products or services, or (c) is technology needed to
imbed the Precision Matching Technology into E-Cruiter's products or services,
such technology shall be the property of the party developing it (the
"Developing Party"); provided, however, that upon request, the Developing Party
shall execute in favor of the non-developing party a fully paid, irrevocable,
non-exclusive, non-transferable, worldwide license for the term of this
Agreement to use, copy and distribute such technology.
13. Representations and Warranties. The parties represent and warrant
for themselves as follows:
(a) That it is duly organized and validly existing as a
corporation and is in good standing under the laws of its organization and that
it has the power and authority to enter into this Agreement.
(b) That it has the corporate power and authority to transact
the business in which it is engaged and holds all necessary federal, state, and
local permits, licenses or approvals, including exemptions, where applicable, to
perform its business and its obligations under this Agreement, and that it is in
good standing under such permits, licenses and approvals.
(c) That neither the Party's Brand Features nor any
intellectual property underlying any technology licensed under paragraph 4
hereof infringes, misappropriates or otherwise violates any intellectual
property right of a third party.
14. Indemnification.
14.1 Indemnity. Each party (the "Indemnifying Party") agrees
to defend, indemnify, and hold the other party, its officers, directors,
employees and agents (the "Indemnified Party"), harmless from any obligations,
costs, claims, judgments, losses, expenses and liabilities (including reasonable
attorneys' fees) incurred as a result of any claim by a third party to the
extent caused by (i) a breach of the Indemnifying Party's obligations,
representations or warranties under this Agreement; (ii) a material act or
material failure to act by the Indemnifying Party related directly or indirectly
to the activities contemplated by this Agreement if taken at the direction or
request of the Indemnifying Party; (iii) an alleged misrepresentation, negligent
or otherwise, made by the Indemnifying Party to a third party concerning the
service or products of the Indemnified Party; or (iv) a fraudulent act, willful
misconduct or gross negligence committed by any officer, director, employee or
agent of the Indemnifying Party (whether or not within the scope of his or her
employment or agency) related directly or indirectly to the activities
contemplated by this Agreement .
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14.2 Notice. In the event either party becomes aware of any
action proceeding, claim or demand (collectively, an "Action") that may result
in a claim for indemnification hereunder, the Indemnified Party shall promptly
notify the Indemnifying Party of the Action. The Indemnifying Party may assume
the sole responsibility for defense of the Action (at its sole cost and expense)
if it so notifies the Indemnified Party within thirty (30) calendar days after
receiving the above notice of the Action. If the Indemnifying Party fails to
notify the Indemnified Party of the former's desire to assume responsibility for
defense of the Action, the Indemnified Party may defend the Action at the cost
and expense of the Indemnifying Party, in which case the Indemnifying Party
shall periodically reimburse the Indemnified Party of such costs and expenses
within thirty (30) calendar days of receiving a demand for reimbursement,
provided such demand includes detailed backup of such costs and expenses. No
Action may be settled without the Indemnifying Party's consent, which consent
shall not be unreasonably withheld.
15. Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, LOSS OF PROFIT, INTERRUPTION OF
BUSINESS, ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF
THAT PARTY HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH
DAMAGES.
16. Notices. All notices and other communications provided for
hereunder shall be in writing and may be sent by facsimile, overnight courier or
e-mail (provided e-mail delivery is confirmed by facsimile or overnight courier)
to the following authorized representative of the parties (or to such other
address or person as the parties may notify each other), and will be effective
on the earlier of (a) two (2) days after being deposited in registered or
certified mail; (b) one day after being sent by overnight courier; or (c) when
received:
WorkLife Solutions, Inc.
20770 Monte Sunset Drive
San Jose, CA 95120
Attention: President
E-Cruiter.com, Inc.
Suite 1510
360 Albert Street
Ottowa, Ontario
Canada K1R7X7
Attention: President
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17. General.
17.1 Final Agreement. This Agreement is the entire agreement
between the parties regarding the subject matter hereof and supersedes all prior
and contemporaneous agreements, verbal or written. This Agreement may only be
amended by a writing executed by both parties.
17.2 Governing Law. This Agreement shall be governed by the
laws of California without application of its conflicts of law principles.
17.3 Attorneys' Fees. In any action to enforce this Agreement,
the prevailing party shall be entitled to recover its court costs and expenses,
and its reasonable attorneys' fees, in addition to any other relief to which it
may be entitled.
17.4 No Waiver. No waiver of any right hereunder shall be
deemed to be a waiver of the same or any other right on any other occasion.
17.5 Assignment. Neither party may assign this Agreement or
any of its rights or obligations hereunder (whether voluntarily or by operation
of law) without the prior written consent of the other party, except that (i)
E-Cruiter may assign this Agreement to its subsidiary E-Cruiter.com USA Inc. and
(ii) either party may assign this agreement to an entity that acquires all or
substantially all of its assets, or that has all or substantially all of its
assets controlled by that party.
17.6 Change in Control. A purchaser of substantially all of
the assets of WorkLife or a successor to the business of WorkLife shall be
required to assume the terms of this Agreement.
17.7 Severability. If any provision of this Agreement is held
illegal or unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall remain in effect and the invalid provision
deemed modified to the least degree necessary to remedy such invalidity.
17.8 Survivability. Sections 8, 11, 12, 13 and 14 shall
survive the termination or expiration of this Agreement.
17.9 Relationship of Parties. The parties hereto are
independent contractors and nothing in this Agreement is intended to or should
be construed to create a partnership, joint venture, or employment relationship
between E-Cruiter and WorkLife, nor to permit either party to create binding
agreements on behalf of the other.
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17.10 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 permitted
assigns of the parties, any rights, remedies, obligation or liabilities
whatsoever.
17.11 Subject Headings. The subject headings of this Agreement
are included for the purpose of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
17.12 Force Majeure. Nonperformance by either party shall be
excused to the extent that performance is rendered impossible by strike, fire,
flood, state of war (declared or undeclared), earthquake, governmental acts or
orders, failure of suppliers, natural or manmade disaster, or any other reason
where failure to perform is wholly beyond the control and not caused by the
negligence of the nonperforming party; provided that any such nonperformance
will be cause for termination of this Agreement by the other party if
nonperformance covered by this subsection continues for more than sixty (60)
days.
17.13 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 copy or copies executed by
it. For purposes hereof, a facsimile copy of this agreement, including the
signature page thereof, shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the Effective Date.
WORKLIFE SOLUTIONS, INC. E-CRUITER.COM, INC.
By: By:
---------------------------- -----------------------------
Sunir K. Kapoor Gerry Stanton
Chairman and CEO President and CEO
Appendix A
Minimum Acceptable Price Schedule
Section A1: E-Cruiter Solutions Minimum Acceptable Price Schedule
Schedule to be completed by October 31st 1999.
Section A2: WorkLife Solutions Minimum Acceptable Price Schedule
Schedule to be completed by October 31st 1999.