Execution Copy
EXHIBIT 10.2
SOFTWARE DEVELOPMENT AND DEPLOYMENT AGREEMENT
This SOFTWARE DEVELOPMENT AND SERVICES DEPLOYMENT AGREEMENT (the
"Agreement"), is made and entered into as of March 18, 2002 (the "Closing Date")
by and between AdStar, Inc., a Delaware corporation ("AdStar") and Tribune
Company, a Delaware corporation ("Tribune") (collectively the "Parties" and each
a "Party").
WHEREAS, AdStar is the sole and exclusive developer and worldwide
owner of a proprietary software product that is used, together with AdStar's
hosting and servicing facilities, to provide a service known as the "AdStar
Service";
WHEREAS, AdStar provides services related to the implementation,
customization and maintenance of the AdStar Service;
WHEREAS, Tribune and Knight-Ridder Inc. ("Knight Ridder") are
controlling stockholders in CareerBuilder, Inc., a Delaware corporation that
operates the "CareerBuilder" recruitment business ("CareerBuilder");
WHEREAS, together with its newspaper partners (which together with
CareerBuilder comprise the "CareerBuilder Network"), CareerBuilder provides an
integrated print and online recruitment solution available in major markets
throughout the United States;
WHEREAS, Tribune and AdStar wish to develop, customize and deploy,
solely for the benefit of Tribune, its Affiliates and the CareerBuilder Network,
a service that combines the AdStar Service with the new Tribune specified
functionalities, in the form of new software Modules (as defined below), for use
with the CareerBuilder Network;
WHEREAS, Tribune desires to license from AdStar the software Modules
so developed for the CareerBuilder Service and license rights to use the AdStar
Service and receive certain services of AdStar appurtenant thereto; and
WHEREAS, subject to the terms and under the conditions of this
Agreement, AdStar desires to grant certain license and usage rights and provide
such services.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and other good and valuable
consideration (including, without limitation, that described in Section 15.8),
the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
ARTICLE I - DEFINITIONS
SECTION 1.1. The following terms as used in this Agreement shall
have the respective meanings set forth below or as defined elsewhere in the text
of this Agreement.
(a) "Acceptance Tests" shall mean the software testing plan to be
agreed upon by the Parties, which shall meet the minimum specifications set
forth in Exhibit A, as the same will be developed and updated by Tribune.
(b) "AdStar Service" means AdStar's hosting and servicing facilities
and software, and includes without limitation the software and services
comprising "AdStar User" and "AdStar Server".
(c) "Affiliate" has the meaning set forth in the Investment
Agreement.
(d) "Bankruptcy" means, with respect to a Party, the happening of
any one or more of the following events: a Party: (i) makes an assignment for
the benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii)
is adjudged a bankrupt or insolvent, or there has been entered against such
Party an order for relief, in any bankruptcy or insolvency proceeding; (iv)
files a petition or answer seeking in respect of such Party any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation; (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against such Party in any proceeding of a nature described above; or (vi)
seeks, consents or acquiesces in the appointment of a trustee, receiver,
conservator or liquidator of such Party or of all or any substantial part of
such Party's properties.
(e) "CareerBuilder Network" has the meaning set forth in the
recitals to this Agreement and includes without limitation the Tribune
Newspapers and Knight Ridder Newspapers.
(f) "CareerBuilder Service" means the software comprising the AdStar
Service as configured and customized pursuant to this Agreement, including the
hosting and servicing facilities that are part of the AdStar Service, and the
Modules, including all Upgrades and Enhancements thereto and inherent or
associated Intellectual Property Rights therein.
(g) "Competitor" has the meaning set forth on Schedule 8.
(h) "Enhancements" means any improvement or modification made to the
CareerBuilder Service pursuant to a request made by Tribune in accordance with
Article V of this Agreement.
(i) "Error" means any deviations from the Functional Requirements or
Technical Specifications, including without limitation cases where the
CareerBuilder Service or any part thereof abnormally ceases functioning,
produces incorrect or misleading information or erroneously interprets
information given to it.
(j) "Force Majeure Event" has the meaning set forth in Section
15.15.
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(k) "Functional Requirements" means the functional requirements and
specifications for all components of the CareerBuilder Service (other than Third
Party Technology) as stated in narrative and flow chart forms as specified on
Exhibit A.
(l) "Infringe" or "Infringement" means the infringement, imitation,
dilution, misappropriation or any other unauthorized use of any Intellectual
Property Rights.
(m) "Intellectual Property Rights" means all patents, reexamined
patents and patent applications (including all divisions, continuations,
continuations-in-part, reissues, renewals, extensions, supplementary protection
certificates, utility models and the like), copyrights (whether registered or
unregistered), trade dress, trademarks and service marks (whether registered or
unregistered), moral rights, all derivative works and other intellectual
property rights and any applications for, or rights to obtain or acquire such
rights.
(n) "Know-How" means all Confidential Information and all unpatented
proprietary information, trade secrets, data and materials, in whatever form,
including, but not limited to, the following: specifications, calculations,
formulae, engineering and technical data, blueprints, diagrams, charts, results,
computer programs, designs, skills, methods, techniques, procedures,
manufacturing data and marketing or sales information.
(o) "Investment Agreement" means the Series A Preferred Stock
Purchase Agreement dated the date hereof between the Parties.
(p) "Knight Ridder Newspaper" means any newspaper designated as such
on Schedule 1, as amended from time to time.
(q) "Launch Date" means the sooner to occur of (i) the date upon
which the Acceptance Testing for the CareerBuilder Service has been completed to
the satisfaction of the first Tribune Newspaper to conduct such testing; (ii)
thirty (30) days after the date that AdStar notifies Tribune that establishes
that the CareerBuilder Service is ready for Acceptance Tests if no such testing
takes place due solely to the action or inaction of Tribune (of which Tribune
has received notice from AdStar); or (iii) thirty (30) days after the date that
AdStar establishes that the CareerBuilder Service would have been ready for
Acceptance Testing (and AdStar notified Tribune of its readiness) but for the
action or inaction of Tribune (of which Tribune has received notice from AdStar)
(excluding, in the case of (ii) and (iii), modifications to Exhibit A).
(r) "License" means the license granted to Tribune under Section
3.1, as defined and limited by the terms and conditions of this Agreement.
(s) "Module" means the software developed pursuant to this agreement
that has the features and functionality described on Exhibit B, as amended from
time to time, including any Enhancements.
(t) "Object Code" means machine-executable computer software
prepared by compiling and linking Source Code or machine independent
representations of computer software intended for subsequent interpretation or
just-in-time compiling.
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(u) "Other Classified Verticals" mean real estate and automotive
classified advertising.
(v) "Person" has the meaning set forth in the Investment Agreement.
(w) "Restricted Transaction" means either (i) the sale, lease,
transfer, conveyance or other disposition, in one or a series of related
transactions, of all or substantially all of the assets of AdStar, taken as a
whole, or (ii) a transaction or series of transactions (including by way of
merger, consolidation, or sale of stock) the result of which is that the holders
of AdStar's outstanding voting stock immediately prior to such transaction are
after giving effect to such transaction no longer, in the aggregate, the
"beneficial owners" (as such term is defined in Rule 13d-3 and Rule 13d-5
promulgated under the Securities Exchange Act), directly or indirectly through
one of more intermediaries, of more than 50% of the voting power of the
outstanding voting stock of AdStar, in which (in either (i) or (ii)) a
purchaser, transferor or successor is (x) a Competitor of CareerBuilder or (y)
not approved by Tribune based on Tribune's sole, good faith judgment that a
purchaser, transferor or successor in any such transaction is unlikely to meet
the obligations of this Agreement or support the CareerBuilder Service.
(x) "Source Code" means the source code form of any computer
software and any associated documentation in human-readable form, including
programmers' comments, data files and structures, APIs, Technical
Specifications, and such other documents necessary to fully utilize, modify and
maintain the computer software.
(y) "Statement of Work" means any agreement entered into by the
Parties with respect to the development of Enhancements and the services to be
performed by AdStar related thereto, as described more fully in Article V.
(z) "Technical Specifications" means the detailed technical
specifications and parameters for all components of the CareerBuilder Service,
including, without limitation, flow charts, file layouts, output descriptions,
screen outputs and response times as specified on Exhibit A.
(aa) "Third Party Technology" means equipment, designs, circuits,
algorithms, computer software or other technology that is sourced from a third
party and all third party intellectual property rights therein.
(bb) "Tribune Newspaper" means any newspaper designated as such on
Schedule 1 as amended from time to time by Tribune.
(cc) "Upgrade" means all fixes, upgrades, integrations or new
additions to and advances in the CareerBuilder Service and all new technology
developed by AdStar or the rights to which are obtained by AdStar after the
Closing Date, but excluding any Enhancements.
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ARTICLE II - DEVELOPMENT AND DEPLOYMENT
SECTION 2.1. Purpose. The Parties hereby acknowledge and agree that
the CareerBuilder Service is being developed for the sole and exclusive benefit
of Tribune and its Affiliates and the CareerBuilder Network.
SECTION 2.2. Obligations of AdStar. (a) AdStar shall be responsible
for supplying the resources necessary to (i) reconfigure and customize the
AdStar Service, (ii) install data and other components into the AdStar database,
and (iii) develop the Modules, all in the manner, time and date as specified on
Exhibit A hereto and as necessary to support the requirements of the
CareerBuilder Service and (iv) build a user interface for use by agencies and
advertisers with the "look and feel", branding and links requested by Tribune in
its sole discretion.
(b) In addition to any other personnel needed to meet the objectives
of this Agreement, AdStar will specifically devote the equivalent of two
full-time employees (the "Developers"), at no additional charge to Tribune, to
the development and deployment of the CareerBuilder Service and to providing
Upgrades and Enhancements. The Developers shall for the term of this Agreement
be responsible for performing Upgrades and Enhancements.
SECTION 2.3. Progress Reports. Beginning on the Closing Date and
ending on the completion of all of the development contemplated on Exhibit A,
AdStar shall submit to Tribune on a weekly basis, or at such other times as
Tribune may reasonably request, written progress reports relating to the
development of the CareerBuilder Service. Each progress report shall include,
without limitation, project plans, technical designs, Q&A reports, discussion of
progress to date, problems encountered, proposed solutions to such problems and
any other items reasonably requested by Tribune.
SECTION 2.4. Acceptance Tests. (a) Upon delivery of the completed
CareerBuilder Service pursuant to the schedule set forth in Exhibit A, as
amended from time to time, Tribune, AdStar, any Tribune Newspaper, any Knight
Ridder Newspaper and/or their representatives shall conduct the Acceptance Tests
as specified in Exhibit A, as the same will be developed and updated by Tribune
for the completed CareerBuilder Service.
(b) If in the course of conducting Acceptance Tests, Tribune or its
representatives determine that the CareerBuilder Service (including the testing
of any Upgrade or Enhancement) does not materially perform in accordance with
the applicable Acceptance Tests, Tribune shall promptly notify AdStar and AdStar
shall, within thirty (30) days, or such other time period as may be requested by
AdStar and approved by Tribune, at AdStar's sole cost and expense, modify or
improve the CareerBuilder Service so that the same shall perform in accordance
with the Acceptance Tests. Upon redelivery of the CareerBuilder Service, Tribune
and AdStar or their representatives shall conduct, as applicable, additional
Acceptance Tests as specified in Exhibit A or such other documents as agreed by
the Parties.
(c) The material failure of the CareerBuilder Service to meet the
applicable Acceptance Tests after the second set of Acceptance Tests, which
failure is not due to any action
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or inaction on the part of Tribune (of which Tribune has received prior written
notice from AdStar), shall constitute a material breach of this Agreement by
AdStar.
SECTION 2.5. Milestones; Delay. (a) AdStar shall notify Tribune on a
continuing basis of any event or occurrence that could cause a material delay in
meeting any milestone set forth in Exhibit A or otherwise delay the development
of the CareerBuilder Service. Any material delay which is caused by AdStar,
other than a delay resulting from a Force Majeure Event or due to any action or
inaction on the part of Tribune or CareerBuilder (of which Tribune has received
notice from AdStar) shall be deemed to be a material breach of this Agreement.
If, in the event of such delay, Tribune, in its sole discretion, elects not to
exercise its rights under Article X or otherwise pursuant to this Agreement,
Tribune may, by written notice, designate a new date for the completion of the
delayed CareerBuilder Service.
(b) If a new completion date is designated, AdStar shall pay
Tribune, as liquidated damages and not as a penalty, Two Thousand Dollars
($2,000) for each week between the original completion date as set forth on
Exhibit A or the applicable development schedule and the actual completion date.
(c) If a delay is caused by a Force Majeure Event or by Tribune, the
outstanding milestone dates and the completion date for the CareerBuilder
Service under Exhibit A shall be extended by the number of days attributable to
the delay.
SECTION 2.6. Change in Scope. Tribune may request a change to the
specifications set forth on Exhibit A pursuant to a written change order
("Change Order"). Each Change Order shall identify with specificity any
modifications to the applicable Functional Requirements, Technical
Specifications, and schedule, including, without limitation, modifications to
tasks, timetables, deliverables, fees and charges. Within five (5) business days
after the receipt of a Change Order, the Parties shall discuss the availability
of personnel and resources to fulfill such Change Order and the resulting
adjustments to the Functional Requirements, Technical Specifications and
schedule. AdStar shall have no obligation to commence work in connection with
any Change Order until such Change Order is executed by both Parties. Each
Change Order executed by Tribune and AdStar shall be incorporated into and
constitute an amendment to this Agreement. The terms of any Change Order shall
control over any inconsistent provisions set forth in this Agreement or any
attachment hereto.
SECTION 2.7. Project Management. (a) Each Party shall designate one
of its employees to be its project manager (the "Project Manager"). Each Project
Manager's responsibilities shall include, without limitation: (i) having direct
responsibility for the overall performance of its Party under this Agreement and
have final authority vis-a-vis the other Party on all matters that relate to
such Party's performance under this Agreement; (ii) interacting with the other
Party's Project Manager; and (iii) supervising the performance of such Party's
obligations under this Agreement. Project Managers of each Party shall meet as
needed, but no less often than monthly to review progress and to resolve issues
relating to this Agreement.
(b) Tribune may, if good cause exists therefor, withdraw its
approval of AdStar's Project Manager. If AdStar's Project Manager is unable to
continue to serve due to physical disability or termination of employment, or if
Tribune withdraws its approval of
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AdStar's Project Manager, AdStar shall appoint a successor Project Manager,
subject to Tribune prior written approval, which approval will not be
unreasonably withheld or delayed.
SECTION 2.8. Management by Tribune. Notwithstanding anything to the
contrary herein, Tribune shall have the right to manage the development
specified herein provided by AdStar if, in Tribune's reasonable judgment, it
appears reasonably likely that AdStar will fail to meet any requirement
specified in Exhibit A or other applicable development schedule. In the event
that Tribune exercises its rights under this Section 2.8 (i) AdStar will
continue to use best efforts to meet the objectives of this Agreement, (ii)
AdStar will not be subject to any liquidated damages under Section 2.5 accruing
after the date on which Tribune begins such management and (iii) Tribune will be
entitled to reimbursement commensurate with the management so provided.
ARTICLE III - GRANT OF LICENSE
SECTION 3.1. License Grant; Scope. (a) AdStar hereby grants to
Tribune and its Affiliates an exclusive (even as against AdStar), perpetual,
irrevocable, sublicensable (but only to Affiliates of Tribune or members of the
CareerBuilder Network), worldwide, transferable (but only to Affiliates of
Tribune or members of the CareerBuilder Network) right and license to use,
reproduce, display, modify and transmit the Modules and Enhancements or other
modifications thereto. The parties hereby acknowledge and agree that the
computer code written for the Modules, as defined in Exhibit B, may not be used
by AdStar to create software for any third party. The definition of the Modules
may be expanded and/or modified from time to time to include other functionality
by mutual agreement between the parties.
(b) AdStar hereby grants to Tribune and its Affiliates an exclusive
(even as against AdStar), sublicensable (but only to Affiliates of Tribune or
members of the CareerBuilder Network), worldwide, transferable (but only to
Affiliates of Tribune or members of the CareerBuilder Network) right and license
for the Term to use, reproduce, display, modify and transmit the CareerBuilder
Service other than the Modules and Enhancements or other modifications thereto
(the "License").
SECTION 3.2. Further Licenses. Upon the prior consent of Tribune,
AdStar may grant directly to Affiliates of Tribune or members of the
CareerBuilder Network or to third parties the non-exclusive right to use the
CareerBuilder Service solely as approved by Tribune and solely in connection
with products or platforms developed by CareerBuilder or any other product or
platform approved by Tribune.
ARTICLE IV - MAINTENANCE, SUPPORT AND UPGRADES
SECTION 4.1. Maintenance and Support Services. The maintenance
support and upgrade services shall be provided by AdStar to Tribune as specified
on Schedule 4 hereto.
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ARTICLE V - ENHANCEMENTS
SECTION 5.1. Enhancements. (a) Tribune may request that AdStar
create Enhancements to the CareerBuilder Service, and AdStar agrees to use its
best efforts in performing the services to develop such Enhancements. Tribune
may also request that AdStar create improvements or modifications to the
CareerBuilder Service to be used in Other Classified Verticals and such
improvements or modifications will be considered Enhancements for the purposes
of this Agreement. The use of the Developers to create Enhancements shall not be
chargeable to Tribune. Any work related to Enhancements that requires employees
or consultants in addition to the Developers will be chargeable to Tribune on a
time and materials basis without mark-up; provided, however, that if Tribune's
concept for an Enhancement is under active development by AdStar with a
projected deployment date ("Deployment Date"), Tribune shall have the option to
(i) wait until the Deployment Date and receive the new functionality as an
Upgrade, or (ii) request that the new functionality be developed on an
accelerated basis with Tribune paying any applicable fees in accordance with the
Agreement. If Tribune opts to proceed under clause (ii), the Parties shall
mutually agree whether such new functionality will be considered an Enhancement
(and subject to Article VIII) or, if not, whether any period of exclusivity will
apply and whether and on what basis AdStar will repay to Tribune any fees paid
for development of the new functionality or reimburse Tribune for the use of the
Developers.
(b) Tribune shall request a Statement of Work from AdStar for each
Enhancement to the CareerBuilder Service it desires. AdStar shall deliver the
requested Statement of Work within ten (10) days of each such request and prior
to commencing work. Each Statement of Work shall set forth: (i) the type of
Enhancement and the related services to be provided; (ii) the scope of the
services; (iii) any specific Confidential Information (as defined below) of a
Party to be incorporated into or form the basis of the Enhancement (iv) the
estimated Development Schedule (as defined below) for the delivery of the
Enhancement; (v) the time and materials rates for the development services; and
(vi) if applicable, the name and contact information of Tribune's project
manager responsible for coordinating the development of the Enhancement from the
perspective of Tribune. All Statements of Work shall be deemed incorporated by
reference into this Agreement and subject to the rights and obligations of the
Parties as stated herein.
SECTION 5.2. Development Schedule. Following receipt of a Statement
of Work, AdStar and Tribune shall mutually agree to a schedule for the
development of the Enhancement and an estimate of the hours required to create
such Enhancement (the "Development Schedule"). If Tribune approves the
Development Schedule, AdStar shall use its best efforts to create the
Enhancement pursuant to the Development Schedule. AdStar shall provide reports
to Tribune on the progress of the Enhancements as specified in Section 2.3.
SECTION 5.3. Acceptance of Enhancements. Acceptance testing of
Enhancements shall be conducted as specified in Article II or as otherwise
specified in writing by the Parties. Unless Tribune notifies AdStar in writing
of any Errors in the Enhancement within thirty (30) days of receipt of such
Enhancement, such Enhancement shall be deemed to have been accepted by Tribune.
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SECTION 5.4. Tribune's Cooperation. Tribune acknowledges that the
successful and timely rendering of the services and provision of the
Enhancements requires the good faith cooperation of Tribune. Tribune shall
cooperate with AdStar by, among other things: (a) providing AdStar with all
required information concerning the proposed services and intended Enhancements
as may be reasonably required by AdStar; and (b) making reasonably available to
AdStar such personnel of Tribune as are familiar with the anticipated
requirements of the Enhancements; Tribune's Project Manager shall be the only
person authorized to act for Tribune with respect to the matters related to the
applicable Statement of Work.
SECTION 5.5. Ownership of Enhancements. Except for Joint
Developments under Section 6.4, upon completion of the services under the
Statement of Work, all Enhancements developed by AdStar hereunder, including,
without limitation, all modifications and derivative works of the CareerBuilder
Service, and the CareerBuilder Service so enhanced, are and shall become and
remain, as between AdStar and Tribune, the sole and exclusive property of
AdStar, subject to any Third Party Technology included therein and the exclusive
rights and covenants granted herein. AdStar hereby grants to Tribune an
exclusive license to use the Enhancement during the Term, on the same
conditions, and to the same extent, as the License of the CareerBuilder Service
granted to Tribune under Section 3.1 of this Agreement.
ARTICLE VI - OWNERSHIP
SECTION 6.1. Ownership Rights. All intellectual property rights in
and to the CareerBuilder Service created prior to or during the Term, including
all Enhancements (except as limited by Section 6.4), are solely and exclusively
owned by AdStar, subject to the exclusive rights and covenants granted herein.
All ownership and intellectual property rights in and to any and all data and
information processed through the CareerBuilder Service are and shall remain the
sole and exclusive property of Tribune and AdStar shall provide such data to
Tribune as soon as practicable if and when requested.
SECTION 6.2. Maintenance of Intellectual Property Rights. AdStar
shall take all action necessary to maintain and protect the Intellectual
Property Rights subsisting in the CareerBuilder Service. Tribune may request
that AdStar take any specific action, and AdStar shall not unreasonably deny any
such request and shall take such action at its own expense. At AdStar's expense,
Tribune shall reasonably cooperate with AdStar in the maintenance of the
applications and registrations relating to the Intellectual Property Rights
subsisting in the CareerBuilder Service, including executing such instruments as
AdStar may from time to time reasonably request.
SECTION 6.3. Goodwill. Any and all goodwill arising from Tribune's
use of any trademarks owned by AdStar included within the CareerBuilder Service
shall inure solely to the benefit of AdStar. Any and all goodwill arising from
AdStar's use of any trademarks owned by Tribune included within the
CareerBuilder Service shall inure solely to the benefit of Tribune.
SECTION 6.4. Joint Developments. During the term of this Agreement,
any idea, invention, design, process, improvement, discovery, know-how, computer
software, documentation, other work of authorship, product, or other material,
and all Intellectual Property
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Rights therein, which the Parties invent, create or develop jointly, shall be
jointly owned without a right of accounting ("Joint Developments"). AdStar
agrees, however, that its interest in Joint Developments shall be subject to the
terms of this Agreement.
SECTION 6.5. Use of Third Party Technology by AdStar. AdStar has not
and shall not incorporate any material Third Party Technology in the
CareerBuilder Services unless: (i) such technology and their owners (including
the owners of any patents, copyrights, trade secrets, trademarks or other
intellectual property rights embedded therein) are identified in writing to
Tribune, and (ii) AdStar either: (x) has sufficient authority to grant to
Tribune the rights and licenses necessary to exploit the CareerBuilder Service
as contemplated herein (y) the third party owner has granted directly to Tribune
rights and licenses in such materials necessary to exploit the CareerBuilder
Service as contemplated herein pursuant to a separate written agreement.
Schedule 6 contains a complete and accurate list of all Third Party Technology
used or contemplated to be used in the CareerBuilder Service and except as
specified in Schedule 6, AdStar has the right to assign all Third Party
Technology licenses incorporated in the CareerBuilder Service to Tribune in the
event of a release of the Deposit Materials pursuant to Article X. AdStar also
agrees that it will use its best efforts to assign any Third Party Technology
licenses to Tribune in the event of a release of the Deposit Materials as
specified in Article X and will use it best efforts to secure such rights in all
future Third Party Technology licenses. AdStar shall have sole responsibility
for payment of all royalties and other charges with respect to Third Party
Technology employed by AdStar and included in the CareerBuilder Service or the
Modules, including as they may accrue with respect to subsequent exercise by
Tribune, its Affiliates, customers, and successors and assigns. With respect to
material Third Party Technology that is identified in writing to Tribune, AdStar
shall, prior to incorporating the same in the CareerBuilder Services, either
provide to Tribune a copy of any agreements or other instruments from which
AdStar derives its authority to grant Tribune the rights contemplated herein, or
shall allow Tribune's counsel to review such agreements or other instruments on
a confidential basis for the purpose of advising Tribune with respect to
AdStar's authority to grant Tribune such rights and licenses. Failure to provide
such agreements or instruments to Tribune or Tribune's counsel shall be deemed a
material breach of this Agreement; provided, however, that AdStar shall have ten
(10) calendar days to provide such agreements upon notice from Tribune. If
Tribune is not satisfied that AdStar has sufficient rights with respect to any
Third Party Technology, or if AdStar fails to assume and discharge its
responsibility for related royalties and other charges, Tribune may suspend
further action or payment with respect to this Agreement. Nothing contained in
this Section 6.5 shall apply to Third Party Technology incorporated into the
CareerBuilder Services at the request of Tribune, or to restrict or preclude
Tribune from dealing directly with any third party with respect to such Third
Party Technology.
ARTICLE VII - PAYMENTS
SECTION 7.1. Development and Deployment Payments. Tribune shall pay
to AdStar $5,000.00 on April 2, 2002 (the "Deployment Fee") by wire transfer to
an account specified by AdStar.
SECTION 7.2. Other Payments. Any payments other than the Deployment
Fee (including any payment required to be made pursuant to the Schedules) due to
Tribune under this
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Agreement shall be paid by AdStar within thirty (30) days of accrual of any such
payments by wire transfer to an account specified by Tribune.
ARTICLE VIII - COVENANTS
SECTION 8.1. Covenants. The Parties hereby agree that AdStar will be
bound by and adhere to covenants and agreements set forth in Schedule 8. Without
limiting in any respect the validity of the consideration received by the
Parties in exchange for the other agreements and obligations set forth herein,
AdStar expressly acknowledges and agrees that due and valid consideration has
been received in exchange for the covenants set for in Schedule 8.
SECTION 8.2. Integration Fees. Tribune will pay AdStar a $25,000
integration fee for each additional Tribune newspaper that becomes an AdStar
customer (each, an "Additional Newspaper") after the Closing Date; it being
understood that no Additional Newspaper will be obligated to become an AdStar
customer and that, if such Additional Newspaper desires to become an AdStar
customer, the Additional Newspaper will either execute a License Agreement with
AdStar substantially in the form of Exhibit G to the Investment Agreement or
otherwise become subject to the terms of such License Agreement.
ARTICLE IX - REPRESENTATIONS AND WARRANTIES
SECTION 9.1. General. Each Party represents and warrants to the
other that: (a) all corporate action necessary for the authorization, execution
and delivery of this Agreement by such Party and the performance of its
obligations hereunder has been taken; (b) the execution, delivery and
performance of this Agreement do not violate or conflict with any law applicable
to it, any provision of its charter or bylaws, any order or judgment of any
court or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets; and (c)
its obligations hereunder constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought
in a proceeding in equity or at law)).
SECTION 9.2. Warranty on the CareerBuilder Service. AdStar
represents and warrants that the CareerBuilder Service will conform to its
Technical Specifications and the Functional Requirements. AdStar further
represents and warrants that, as of the Closing Date: (a) except with respect to
Third Party Technology, it owns all right, title and interest in the
CareerBuilder Service, and all Intellectual Property Rights therein, free and
clear of all encumbrances; (b) the owners of Third Party Technology have granted
AdStar the right to license or sublicense the same for the purposes of this
Agreement; (c) neither Tribune nor any of its Affiliates or customers will
infringe upon, violate or misappropriate any third party's Intellectual Property
Rights as a result of the License granted to Tribune under this Agreement or as
a result of using the CareerBuilder Service; (d) the CareerBuilder Service is
free from the rightful claims of any third party for infringement of any
intellectual property rights; (e) AdStar has received no notice of a claim of
infringement, violation or misappropriation from any third party regarding the
AdStar Service, and AdStar is not aware of the potential assertion of any
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such claim; and (f) AdStar has not granted, and will not grant, any licenses or
sublicenses for use of the CareerBuilder Service, or any component thereof.
SECTION 9.3. Remedy for Third-Party Intellectual Property Claims.
(a) With respect to a claim asserted by or on behalf of a
third-party based on the breach of a representation or warranty contained in
Section 9.2, AdStar's indemnity obligations under Section 12.2 shall extend to
Tribune, Knight Ridder, their Affiliates and their directors, officers,
employees, representatives and agents. As the result of any such third-party
claim, if an injunction is entered against the use or distribution of the
CareerBuilder Service by Tribune, CareerBuilder or Knight Ridder or their
Affiliates, or if in Tribune's reasonable opinion the CareerBuilder Service or
any part thereof is likely to become the subject of such a claim, AdStar will,
at its sole option and its own expense: (i) procure the right for Tribune,
CareerBuilder, Knight Ridder and their Affiliates to continue using the
CareerBuilder Service through a license or other agreement; (ii) replace or
modify the CareerBuilder Service or any part thereof with an equivalent of like
performance so that it becomes non-infringing; or (iii) remove the encumbrance
or otherwise cure the impairment that is the subject of the claim.
SECTION 9.4. AdStar's Virus Warranty. AdStar represents and warrants
that any software included within the CareerBuilder Service, to the best of
AdStar's knowledge, will not contain any virus or other instruction or routine
designed to erase data or programming or to cause the CareerBuilder Service to
become inoperable or otherwise incapable of being used in the full manner for
which it was designed and created by AdStar.
SECTION 9.5. Development and Deployment Warranties. AdStar
represents and warrants that: (i) AdStar shall use its best efforts in
developing the CareerBuilder Service in accordance with the applicable
development schedule; (ii) developments relating to the CareerBuilder Service
and deployment thereof shall be performed in a professional and workmanlike
manner in accordance with the highest applicable professional standards; (iii)
all charges and costs for development and deployment of the CareerBuilder
Services are set forth herein or shall be borne by AdStar; (iv) AdStar's
development and deployment of the CareerBuilder Service shall comply in all
material respects with the applicable Functional Requirements and Technical
Specifications; (v) AdStar possesses the equipment, personnel and other
expertise necessary to develop and deploy the CareerBuilder Service as set forth
herein; (vi) AdStar personnel creating and deploying the CareerBuilder Service
shall have appropriate technical skills, training, experience and expertise to
enable AdStar to perform its responsibilities set forth herein; (vii) the
development and deployment of the CareerBuilder Service shall not be performed
in violation of any applicable law, rule or regulation, and AdStar shall have
obtained all permits necessary to comply with such laws, rules and regulations.
The Parties acknowledge and agree that disruptions of the transmission of data
over the Internet may occur from time to time through no fault of AdStar. AdStar
shall not be liable for any such disruption of the transmission of data over the
Internet that is not under the control of AdStar except to the extent that
AdStar is negligent in providing a remedy to such disruption.
SECTION 9.6. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, ADSTAR MAKES NO OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES,
INCLUDING ANY WARRANTY OF MERCHANTABILITY
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OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY BASED UPON COURSE OF CONDUCT
OR TRADE USAGE, IN CONNECTION WITH THIS AGREEMENT. ALL OTHER WARRANTIES AS TO
THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY
DISCLAIMED.
ARTICLE X - TECHNOLOGY ESCROW
SECTION 10.1. Acknowledgement. AdStar acknowledges that the
essential purpose of this Agreement is for Tribune to use and license the
CareerBuilder Service. In connection therewith, Tribune may require access to
the Source Code, Object Code, Intellectual Property Rights and Know How relating
to the CareerBuilder Service and the AdStar Service.
SECTION 10.2. Escrow Terms. Tribune shall select an escrow agent,
and the Parties shall enter into an escrow agreement with such escrow agent
substantially in the form of Exhibit C ("Escrow Agreement"). The costs of the
escrow shall be paid by Tribune. Within thirty (30) days following the Launch
Date, AdStar shall deliver to the escrow agent all plans, drawings, designs,
specifications, schematics, source code, compilers, reports, studies, data, and
other materials necessary for one skilled in the art to develop the AdStar
Service and the CareerBuilder Service, and to manufacture, sell, support and
maintain the AdStar Service and the CareerBuilder Service ("Deposit Materials");
provided, however, that if, in Tribune's reasonable judgment, it appears likely
that AdStar will fail to meet any requirements specified in Exhibit A, AdStar
shall deliver the Deposit Materials within fifteen (15) days of receiving
written notice from Tribune. AdStar shall supplement the Deposit Materials to
reflect any change, upgrade, improvement or other modification to the AdStar
Service or the CareerBuilder Service or the Intellectual Property Rights
therein, or the materials needed to manufacture, support, improve or enhance the
AdStar Service and the CareerBuilder Service (i) in the case of a new version of
the CareerBuilder Service, within 30 days of deployment of such new version of
CareerBuilder Service and (ii) in the case of a non-material release, within 90
days of deployment of such non-material release. Notwithstanding the foregoing,
AdStar agrees that it will update the Deposit Materials within thirty (30) days
of a request by Tribune to do so. AdStar shall notify Tribune each time it
delivers Deposit Materials to the escrow agent. Tribune shall have the right to
review and audit the Deposit Materials and any additions thereto, and AdStar
shall have the right to be present at any such audit or review.
SECTION 10.3. Release Conditions. A "Release Condition" shall occur
upon: (i) a Restricted Transaction; (ii) in the event AdStar files for
Bankruptcy; (iii) a material breach of this Agreement by AdStar or (iv) a
determination made by Tribune in its sole discretion that AdStar has materially
failed to meet the requirements set forth in Exhibit A. At any time after the
occurrence of a Release Condition specified in clause (i) or (ii) above, the
escrow agent shall be authorized to release the Deposit Materials to Tribune. At
any time after the occurrence of the Release Condition relating to (iii) or (iv)
above (of which AdStar receives written notice from Tribune), AdStar shall
either enter into the procedures defined in Section 15.4 or (y) authorize the
Escrow Agent to release the Deposit Materials to Tribune. If AdStar does not
take any of the foregoing actions within a five (5) day period after receiving
notice from Tribune or the Release Conditions are not resolved pursuant to
Section 15.4, Tribune may obtain delivery of the Deposit Materials by giving a
release notice to the escrow agent.
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SECTION 10.4. Assignment of Joint Ownership. Upon the event of a
Release Condition that is not cured as specified in Section 10.3, AdStar shall,
and hereby does, assign to Tribune a sole ownership interest to the Modules and
Enhancements or other modifications thereto and a joint ownership interest,
without a right of accounting, in the Deposit Materials other than the Modules
and Enhancements or other modifications thereto. AdStar hereby agrees to take
any action or execute any document as reasonably requested by Tribune to
effectuate the foregoing.
SECTION 10.5. License. In the event that the assignment of sole
and/or joint ownership as specified in Section 10.4 is declared invalid by any
legal authority, upon and after receipt of the Deposit Materials, Tribune shall
have an exclusive, perpetual, fully paid-up, irrevocable, sublicensable (but
only to Affiliates or members of the CareerBuilder Network) and worldwide
license to use the Modules and Enhancements and other modifications thereto, and
a non-exclusive, perpetual, fully paid-up; irrevocable, sublicensable (but only
to Affiliates or members of the CareerBuilder Network) and worldwide license to
use Deposit Materials other than the Modules and Enhancements or other
modifications thereto and all Intellectual Property Rights embodied therein to:
(i) make, have made and use the CareerBuilder Service; (ii) copy, display and
make derivative works from the Deposit Materials in order to support the
CareerBuilder Service and to enhance and improve the CareerBuilder Service for
the purpose of developing improvements; and (iii) to otherwise exploit the
Deposit Materials for the purposes contemplated by this Agreement.
SECTION 10.6. Duties of AdStar. Upon and after Tribune's receipt of
the Deposit Materials, AdStar shall assist Tribune with the migration and
integration of the CareerBuilder Service to Tribune's hardware, including
without limitation providing all necessary training for Tribune personnel. The
Parties agree to use best efforts to effect such migration and integration
within thirty (30) days. Tribune shall reimburse AdStar for actual costs
incurred in providing such assistance. AdStar further agrees that upon or after
the release of the Deposit Materials to Tribune, AdStar will not upgrade or
modify the CareerBuilder Service such that the upgrade or modification alters
the agency desktop software in any manner that would adversely affect the
placement of a Tribune Newspaper, Knight Ridder Newspaper or any of their
Affiliates on the desktop of an agency or inhibit in any way the transmission of
ads from an agency to a Tribune Newspaper, a Knight Ridder Newspaper or
CareerBuilder.
SECTION 10.7. Restriction on Use. In the event that the Deposit
Materials are released, migrated, assigned and/or licensed to Tribune pursuant
to this Article X, Tribune shall not sell or license the CareerBuilder Service
or any of the Deposit Materials to any third Party that is not or does not
become part of the CareerBuilder Network, and Tribune hereby acknowledges that
AdStar can sell or license its interest in the Deposit Materials other than the
Modules subject to the exclusive rights granted to Tribune in the Modules and
Enhancements thereto.
SECTION 10.8. Duration of Escrow. If the Deposit Materials have not
been previously released to Tribune under the terms of this Article, the escrow
will be terminated and the Deposit Materials returned to AdStar upon the first
to occur of the following: (i) termination or expiration of this Agreement; or
(ii) mutual written agreement of the Parties.
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ARTICLE XI - PROTECTION OF INTELLECTUAL PROPERTY
SECTION 11.1. Infringement of Intellectual Property Rights. AdStar
agrees at its sole expense to enforce its Intellectual Property Rights related
to the CareerBuilder Service against any infringement that materially adversely
affects the marketing and sales activities of Tribune or its Affiliates within
thirty (30) days of notification. In any such case, AdStar shall have the right
to pursue any claim, initiate a lawsuit, conduct litigation, retain any damages
awarded, or settle any matter related thereto. If an incident of infringement
does not materially adversely affect Tribune's rights hereunder, AdStar shall
have to option not to bring an action. If AdStar elects not to bring legal
action, Tribune shall have the right to bring suit at its sole expense and
control while such infringement continues. In the event that either Party
becomes aware of actual or threatened infringement of any such Intellectual
Property Rights in North America, that Party shall promptly notify the other
Party in writing. Each Party shall assist the other and cooperate in any
litigation that ensues with respect to such infringement when and as reasonably
requested by the other Party. The Party that controls any such litigation shall
be entitled to keep any damages awarded.
SECTION 11.2. Status of Activities. AdStar shall keep Tribune
informed of the status of its activities regarding any litigation or settlement
the relating to its enforcement of its Intellectual Property Rights in the
CareerBuilder Service; provided, however, that no settlement, consent judgment
or other voluntary final disposition of any suit defended, or action brought by,
AdStar pursuant to Section 11.1 may be entered into without the consent of
Tribune, if such settlement, payment judgment or other voluntary final
disposition would subject Tribune to an injunction, require that Tribune make a
monetary payment, or otherwise materially adversely affect Tribune's rights
under this Agreement.
ARTICLE XII - INDEMNIFICATION
SECTION 12.1. Indemnification by Tribune. Except for matters
indemnified by AdStar under Section 12.2, Tribune agrees to indemnify, defend,
and hold AdStar and its directors, officers, employees, representatives and
agents harmless from and against any and all claims (including those for
personal injury or death), losses, damages, obligations, liabilities and costs
(including reasonable out-of-pocket attorneys' and other professional fees and
other costs of litigation) (collectively, "Liabilities") arising out of or
attributable to: (a) the gross negligence or willful misconduct of Tribune in
connection with this Agreement; (b) any material breach of any warranty or the
inaccuracy of any representation of Tribune contained or referred to in this
Agreement; or (c) any material breach of any covenant or obligation of Tribune
under this Agreement.
SECTION 12.2. Indemnification by AdStar. Except for matters
indemnified under Section 12.1, AdStar agrees to indemnify, defend, and hold
Tribune, it Affiliates and their directors, officers, employees, representatives
and agents harmless from and against:
(a) any and all Liabilities, arising out of or attributable to: (i)
the gross negligence or willful misconduct of AdStar in connection with this
Agreement; (ii) any material breach of any warranty or the inaccuracy of any
representation of AdStar contained or referred to
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in this Agreement; or (iii) any material breach of any covenant or obligation of
AdStar under this Agreement; and
(b) Any and all Liabilities arising out of or attributable to the
CareerBuilder Service or any component thereof infringing, misappropriating or
violating any Intellectual Property Rights of any third Party and/or based upon
any claim, which, if true, would constitute a breach of any express warranty
made by AdStar hereunder.
SECTION 12.3. Indemnification Procedures. In the event that any
Party intends to claim indemnification pursuant to Section 12.1 or Section 12.2
(an "Indemnitee"), it shall promptly notify the indemnifying Party (the
"Indemnitor") in writing of such alleged liability; provided, however, that the
failure to promptly notify the Indemnitor shall not relieve the Indemnitor of
any obligation under this Agreement except to the extent such failure to provide
prompt notice adversely impairs the Indemnitor's ability to defend against the
claim, suit or proceeding. The Indemnitor shall have the sole right to control
the defense and settlement of the liability, provided that: (a) the Indemnitor
may not consent to imposition of any obligation or restriction on the Indemnitee
in any settlement unless mutually agreed in writing among the Parties; (b)
Indemnitor shall keep Indemnitee fully informed and permit the Indemnitee to
participate (at Indemnitee's expense) as the Indemnitee may reasonably request;
and (c) Indemnitee may, without affecting its right to indemnity hereunder,
defend and settle any such claim, suit or proceeding if Indemnitor declines to
defend against such claim, suit or proceeding or files for bankruptcy. The
Indemnitee shall cooperate with the Indemnitor and its legal representatives in
the investigation of liability covered by Section 12.1 or Section 12.2. The
Indemnitee shall not, except at its own cost, voluntarily make any payment or
incur any expense with respect to any claim or suit without the prior written
consent of Indemnitor, which Indemnitor shall not be required to give, provided
that the Indemnitee may, without affecting its right to indemnity hereunder,
defend and settle any such claim, suit or proceeding if the Indemnitor declines
to take responsibility or files for bankruptcy.
ARTICLE XIII - TERM AND TERMINATION
SECTION 13.1. Term. Except for the license grant in Section 3.1(a)
which shall be perpetual and except as set forth in Section 15.16, the term of
this Agreement shall commence on the Closing Date and continue in full force and
effect for as long as the Service Agreement between AdStar and CareerBuilder
dated the date hereof, as the same may be renewed, amended or extended, is in
effect ( the "Term").
SECTION 13.2. Termination by Either Party With Notice. Either Party
shall have the right to terminate this Agreement by providing written notice to
the other Party for any breach or alleged breach by the other Party of any
material covenant, term, or condition of this Agreement. Such notice shall
adequately describe the nature of the breach, and the breaching Party shall have
thirty (30) calendar days from receipt of such notice to attempt to cure the
breach. If the breach is not cured within such thirty (30) calendar day period,
the non-breaching Party may terminate this Agreement in its entirety by
providing the breaching Party with written notice of termination. At the request
of the breaching Party, the non-breaching Party may consent to extend the cure
period for up to an additional sixty (60) calendar days, which consent
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shall not be withheld or delayed unreasonably if the breaching Party has
commenced commercially reasonable, good faith cure efforts during such period
and has continued to pursue such cure.
SECTION 13.3. Termination By Either Party Without Notice. Either
Party may terminate this Agreement in its entirety immediately upon the
occurrence of any of the following events with respect to the other Party: (a) a
receiver is appointed for such Party or its material assets; (b) such Party
becomes insolvent, generally unable to pay its debts as they become due, or
makes an assignment for the benefit of its creditors or seeks relief under any
bankruptcy, insolvency or debtor's relief law; or (c) if proceedings are
commenced against such Party under any bankruptcy, insolvency or debtor's relief
law, and such proceedings have not been vacated or set aside within sixty (60)
calendar days from the date of commencement thereof.
SECTION 13.4. Rights of Parties Upon Termination. (a) In any case of
termination where Tribune fails to make a payment required hereunder and such
nonpayment remains uncured for thirty (30) days after demand from AdStar for
payment, Tribune shall have no further rights to License the CareerBuilder
Service under Section 3.1, and shall, as directed by AdStar return to AdStar
immediately upon such termination all Confidential Information of AdStar that is
not necessary for the maintenance of the CareerBuilder Service.
(b) In any case of termination where AdStar is the breaching Party
under Section 13.2 or Section 13.3 (subject to any applicable provisions of the
Escrow Agreement), in addition to any other rights and remedies of Tribune under
this Agreement, Tribune shall be entitled to continuous exercise of its License
under Section 3.1. If such termination constitutes a Release Condition under the
Escrow Agreement, Tribune shall receive access to the Deposit Materials pursuant
to the terms and conditions of such Escrow Agreement. In addition to the
foregoing, AdStar shall, as directed by Tribune, either: (i) return to Tribune
all of Tribune's Confidential Information in its possession, custody or control;
or (ii) provide a written certification from an officer of AdStar as to the
destruction of the foregoing.
ARTICLE XIV - CONFIDENTIALITY
SECTION 14.1. Confidential Information. In connection with this
Agreement, each of AdStar and Tribune (in such capacity, the "Recipient") has
received, developed or been given access to, and shall in the future receive,
develop or be given access to, certain information and materials deemed
confidential by and proprietary to the other Party (in such capacity, the
"Disclosing Party"). Subject to Section 14.2, regardless of whether such
information and materials are furnished in whole or part, in writing or orally,
or in any physical format including without limitation, written documents and
computer-related media, and whether or not such information is made available to
a Party under this Agreement, such information and materials may include,
without limitation, (a) the Disclosing Party's services (both existing and under
development during the Term), including, as to AdStar, the CareerBuilder
Service, Source Code, Object Code, Enhancements, Intellectual Property Rights
and Know-How; (b) information, data, materials, subject matter, algorithms,
work-flows, models, formulae, structures, schematics, designs, drawings,
specifications, flow charts, diagrams and methods and processes of, contained in
or embodied by any of the Disclosing Party's CareerBuilder Services (both
existing and under
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development during the Term) and related documentation, including, as to AdStar,
such as may related to the CareerBuilder Service, Source Code, Object Code,
Enhancements, Intellectual Property Rights and Know-How; and (c) information,
data, materials, subject matter, methods and processes, concerning the current
or prospective businesses, customers, potential customers, employees, operating
methods, sources of supply, potential sources of supply, distribution methods,
sales, sales plans, sales methods, profits, markets, financing or plans for
future development (collectively, the "Confidential Information").
SECTION 14.2. Exclusions. Notwithstanding anything to the contrary
contained in Section 14.1, Confidential Information shall not include any
information or materials which: (a) prior to disclosure, are or were known or
generally available to the public other than by means of a breach of this
Agreement; (b) after disclosure, become known to the public through no act or
omission of the Recipient or any other person with an obligation of
confidentiality to the Disclosing Party; (c) are independently developed by or
for the Recipient, as evidenced by written records of the Recipient; or (d) are
required to be disclosed pursuant to an application, law, rule, regulation,
government requirement or court order, or the rules of any stock exchange;
provided, however, that the Recipient shall advise the Disclosing Party of such
required disclosure promptly upon learning thereof in order to afford the
Disclosing Party a reasonable opportunity to contest, limit and assist the
Recipient in responding to such disclosure.
SECTION 14.3. Protection of Confidential Information. The Recipient
shall hold in the strictest confidence all Confidential Information provided to
it and shall not make any disclosure of the Disclosing Party's Confidential
Information to any person other than its Authorized Representatives during the
Term of this Agreement and for a period of three (3) years thereafter; provided,
however, that upon a Release Condition that is not cured by AdStar, Tribune
shall no longer be subject to the restrictions of Article XIV to the extent
necessary to operate the CareerBuilder Services. The Recipient shall handle the
Disclosing Party's Confidential Information with the same degree of care and
through procedures no less stringent than those taken to protect its own
Confidential Information. Notwithstanding the foregoing, the Recipient may
disclose such Confidential Information to those directors, officers, employees,
agents, advisors and sublicensee of the Recipient who have a need to know such
information in connection with the use by Recipient of the CareerBuilder Service
or in connection with its performance under this Agreement ("Authorized
Representatives"). The Recipient shall be responsible for any and all breaches
of the provisions of this Section 14.2 by its Authorized Representatives.
SECTION 14.4. Restricted Use of Confidential Information. The
Recipient and its Authorized Representatives shall use the Disclosing Party's
Confidential Information solely in connection with performance under this
Agreement or any sublicense, and for no other purpose. All Confidential
Information shall remain the sole and exclusive property of the Disclosing Party
and, other than the License expressly granted to the CareerBuilder Service, no
disclosure or permitted use of the Confidential Information under this Agreement
shall be construed as the grant of any right, title or interest, by license or
otherwise, in or to the Confidential Information related to the CareerBuilder
Service. The Disclosing Party shall use commercially reasonable efforts to
identify all embodiments of the Confidential Information (in whatever medium)
with the legend "Confidential;" provided, however, that any material
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reasonably believed to be confidential by the Receiving Party and not stamped
"Confidential" shall also be treated as Confidential Information.
SECTION 14.5. Obligation to Inform. Upon learning of any
unauthorized disclosure or use of a Disclosing Party's Confidential Information,
the Party learning of such disclosure promptly shall provide the Disclosing
Party with written notice thereof.
ARTICLE XV - GENERAL PROVISIONS
SECTION 15.1. Governing Law; Submission to Jurisdiction. This
Agreement and any disputes arising hereunder or related hereto shall be governed
by and construed in accordance with the internal laws of the State of Illinois,
without regard to principles of conflicts of laws. By the execution and delivery
of this Agreement, the Parties submit to the venue and personal jurisdiction of
any federal or state court in the State of Illinois in any suit or proceeding
arising out of or relating to this Agreement.
SECTION 15.2. Public Announcement. The Parties shall mutually agree
upon and issue a press release within five (5) calendar days of the Closing
Date. Neither Party shall issue any press release, publicity statement or other
public notice or announcement relating to this Agreement without the prior
consent of the other Party in each instance. Nothing in this Section 15.2 shall
be construed as prohibiting AdStar's use of the name and identity of Tribune in
sales or marketing or similar materials distributed to prospective customers or
investors of AdStar.
SECTION 15.3. Non-Solicitation/Non-Hiring. The Parties recognize
that their respective employees, and such employees' loyalty and services,
constitute valuable assets of the other. Accordingly, neither Party shall,
during the Term and for a period of one (1) year thereafter, directly or
indirectly solicit, employ, offer to employ, nor engage as a consultant, any
employee or independent consultant of the other Party with whom such Party had
contact pursuant to this Agreement, without the express consent of the other
Party in each instance; provided, however, that in the event the Deposit
Materials are released to Tribune pursuant to the Escrow Agreement, this Section
15.3 shall no longer apply to either Party.
SECTION 15.4. Disputes. In the event of any disagreement,
controversy or dispute regarding performance under or interpretation of this
Agreement, the Parties agree to attempt to reach a negotiated resolution among
themselves. If after twenty (20) calendar days Tribune and AdStar have not
agreed to resolve the dispute, AdStar will have the right to present the dispute
and proposed resolution to both (i) the Chief Technology Officer (or an officer
with similar responsibilities) of Tribune Company and (ii) President of Tribune
Publishing and Tribune will have the right to present the dispute and proposed
resolution to Eli Rousso. If such disagreement, controversy or dispute can not
be resolved within ten (10) calendar days of such escalation, the Parties may
pursue their rights under this Agreement or otherwise. The periods specified in
this Section 15.4 may be increased on a one-to-one basis for each day the
appropriate Tribune personnel are not available to engage in dispute resolution.
If no resolution of a dispute is achieved pursuant to this Section 15.4, AdStar
will fully cooperate with Tribune if such failure to resolve a dispute entitles
Tribune to a release of the Deposit Materials.
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SECTION 15.5. Assignment. Subject to the terms of this Agreement,
neither Party may assign or transfer this Agreement without the prior written
consent of the other Party, except that Tribune (and not AdStar) may transfer or
assign this Agreement without such consent: (a) in connection with the sale of
all or significant portion of its assets; or (b) to the surviving entity in any
merger or consolidation.
SECTION 15.6. Successors. This Agreement shall be binding upon and
inure solely to the benefit of each Party and their successors and assigns, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
SECTION 15.7. Independent Contractors. No agency, partnership or
joint venture is established by this Agreement. Neither Party shall enter into,
incur liabilities, or hold itself out to third Parties as having the authority
to enter into and incur any contractual obligations, expenses or liabilities on
behalf of the other Party. Each of the Parties, in performing its obligations
under this Agreement is acting as an independent contractor of the other Party
and shall have exclusive control of the manner and means of performing such
obligations. Each Party shall be solely responsible for the supervision, daily
direction and control of its employees and for payment of their salaries
(including withholding of appropriate payroll taxes), worker's compensation,
disability, and other benefits. Under no circumstances shall the employees of
one Party be deemed to be employees of the other for any purpose.
SECTION 15.8. Entire Agreement; Amendments. Except for the
Investment Agreement and the other agreements contemplated thereby, this
Agreement and the Exhibits and Schedules hereto contain the entire understanding
of the Parties with regard to the subject matter contained herein or therein,
and supersede all other prior representations, warranties, agreements,
understandings or letters of intent between or among the Parties. This Agreement
shall not be amended, modified or supplemented except by a written instrument
signed by an authorized representative of each of the Parties. Except as set
forth in Section 15.17 and except for the CareerBuilder Network and the Tribune
Newspapers (which are intended beneficiaries of this Agreement) this Agreement
is not intended to confer upon any Person other than the Parties hereto any
rights or remedies hereunder. The Parties acknowledge and agree that the fees
paid by the Tribune Newspapers ("Newspaper Fees") are part of the total
consideration received by AdStar under this Agreement.
SECTION 15.9. Waivers. Any term or provision of this Agreement may
be waived, or the time for its performance may be extended, by the Party or
Parties entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if, as to any Party,
it is authorized in writing by the President of AdStar or by the President or
any vice president of Tribune, as the case may be. The failure of any Party to
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any Party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.
SECTION 15.10. Expenses. Except as expressly set forth herein or in
the Investment Agreement and related agreements, each Party will pay all costs
and expenses
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incident to its negotiation and preparation of this Agreement and to its
performance and compliance with all agreements and conditions contained herein
on its part to be performed or complied with, including the fees, expenses and
disbursements of its counsel and independent public accountants.
SECTION 15.11. Partial Invalidity. Wherever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
SECTION 15.12. Execution in Counterparts. This Agreement may be
executed in counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same agreement, and
shall become binding when one or more counterparts have been signed by each
Party and delivered to each Party.
SECTION 15.13. Headings. The section and article headings contained
in this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
SECTION 15.14. Notices. All notices or other communications required
or permitted hereunder shall be in writing and shall be deemed given or
delivered when delivered personally or when sent by registered or certified mail
or by private courier addressed as follows:
If to Tribune, to:
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Attention: Tribune Publishing Company
Vice President of Strategy &
Development
Facsimile: (312) 222-3942
and to:
Tribune Company
435 North Michigan Avenue
Chicago, Illinois 60611
Attention: General Counsel
Facsimile: (312) 222-4206
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with a copy to:
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Attention: Jon A. Ballis
Timothy E. Sheil
Telephone: (312) 853-7000
Facsimile: (312) 853-7036
If to AdStar, to:
AdStar, Inc.
4553 Glencoe Avenue, Suite 300
Marina Del Rey, California 90292
Attention: Leslie Bernhard
President and Chief Executive Officer
Telephone: (310) 577-8255
Facsimile: (310) 577-8266
with a copy to:
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022
Attention: Stephen A. Zelnick, Esq.
Telephone: (212) 838-8040
Facsimile: (212) 838-9190
or to such other address as such Party may indicate by a notice delivered to the
other Party hereto.
SECTION 15.15. Force Majeure. Except with respect to the payment
obligations of the Parties hereunder, neither Party shall be deemed in default
or otherwise liable for any delay in or failure of its performance under this
Agreement by reason of any Act of God, act of terrorism, war, fire, natural
disaster, accident, riot, act of government, strike or labor dispute, shortage
of materials or supplies, failure of transportation or communication or of
suppliers of goods or services, or any other cause beyond the reasonable control
of such Party ("Force Majeure Event").
SECTION 15.16. Survival. The following Articles and Sections shall
survive any termination of this Agreement: 3.1(a) (License Grant; Scope); 5.5
(Ownership of Enhancements); 6.1 (Ownership Rights); 6.2 (Maintenance of
Intellectual Property Rights); 6.3 (Goodwill); 6.4 (Joint Developments); Article
XII (Indemnification); 14.3 (Protection of
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Confidential Information); 14.4 (Restricted Use of Confidential Information);
and 15.3 (Non-Solicitation/NonHiring).
SECTION 15.17. Additional Parties. The Parties acknowledge that,
under the terms of the Investment Agreement, Tribune is permitted to sell a
portion of the shares (the "Shares") of Series A Preferred Stock of AdStar being
purchased by Tribune under the Investment Agreement to Knight Ridder. The
Parties agree that, in the event that Tribune elects to sell Shares to Knight
Ridder, this Agreement will be amended and restated in order to (a) make Knight
Ridder an original Party hereto, (b) provide that Knight Ridder is entitled to
all the rights and protections granted to Tribune under this Agreement and (c)
amend Exhibit A to incorporate changes requested by Knight Ridder (with the
incremental cost of development caused by any such changes to Exhibit A to be
paid by Knight Ridder). At the time of any such amendment and restatement,
Knight Ridder shall pay AdStar a fee of $25,000.
* * * * *
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf
of each of the Parties as of the date first above written.
TRIBUNE COMPANY
By: /s/ Timothy Landon
--------------------------------------------
Name: Timothy Landon
Title: President/Tribune Classifieds
ADSTAR, INC.
By: /s/ Leslie Bernhard
--------------------------------------------
Name: Leslie Bernhard
Title: President and Chief Executive Officer
Signature Page
to the
Software Development and
Deployment Agreement