EXHIBIT 10.11
RESTRAC/AVERT AVERTNET RESELLER AGREEMENT
This Agreement is made as of January 4, 1999 between Restrac, Inc.
("Restrac"), a corporation with its principal place of business at 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, and Avert, Inc. ("Avert"), a corporation with its
principal place of business at Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxx, XX 00000, to
provide for the resale by Restrac of Avert's "Avertnet" and other Internet-based
pre-employment screening and background checking services (collectively referred
to herein as the "Services").
1. Creation of Private Brand for Services.
(a) Promptly following the execution of this Agreement, Avert will
develop, at its own expense, an order form for the Services presently
offered, customized for use by Restrac's customers (the "Order Form").
Restrac will have the right to approve the Order Form, such approval not to
be unreasonably withheld. During the term of this Agreement, the parties
will collaborate to update the Order Form to reflect Services being offered
on a current basis.
(b) Restrac will develop, at its own expense, a link in its "WebHire"
service to launch the Order Form for the Services in a separate browser
window. Restrac will also make the Services available to its "Hire"
software customers.
2. Resale Methodology.
(a) Restrac customers will purchase Services directly from Avert,
initially by executing an agreement with Avert in a form to be approved by
both Avert and Restrac (the "Customer Agreement"), and subsequently by
initiating orders in accordance with the Order Form. The Customer Agreement
will provide that charges for the Services in the amounts listed in the
Order Form (or otherwise established by Restrac) will be billed to the
customer by, and that payments will be made to, Restrac. At Restrac's
option, the Customer Agreement will require that customers provide Avert
with copies of any written authorizations necessary to obtain information
provided as part of the Services, and Restrac will be entitled to receive
copies of such authorizations. Results of Services will be provided to
Restrac customers via email (when the customer has standard email
protocols), fax, the Internet or U.S. mail.
(b) Restrac will be responsible for paying Avert for all Services
purchased by Restrac customers. Restrac will pay Avert $18 per month per
subscriber for basic Services consisting of account setup and maintenance,
all releases of Avertnet and OrderXpert (and/or other Services currently
offered), and unlimited "First Checks". Restrac will pay Avert for
additional Services purchased by Restrac Customers at rates equal to 63.75%
of Avert's current published standard retail rates for the Services.
Restrac will have the opportunity to receiving additional discounts, based
upon the achievement of mutually agreed upon revenue goals. Avert will
provide Restrac with not less than 60 days' prior written notice of any
increase in such rates. Restrac will have the right to determine, in its
sole discretion, the amounts charged to Restrac customers for the Services.
Restrac will be established as a "parent account" in the Avert "ASAP"
customer system, and will be provided with a full monthly accounting of all
Services purchased by Restrac customers. Restrac will remit all amounts due
to Avert within 60 days after receiving the monthly accounting.
3. Joint Marketing Activities.
(a) During the initial 120 days of this Agreement, Avert and Restrac
will collaborate on a project plan for tighter integration of Avert's
services with Restrac's products.
(b) Restrac will promote the availability of the Services to its
existing and new customers as soon as the Services are available to them.
Restrac will display Avert's logo in Restrac's sales material in a manner
reasonably approved by Avert.
(c) Avert and Restrac will establish web sites for cooperative
marketing activities.
(d) Avert will introduce Restrac products to its customers through the
Avert Alliance catalog of products and services.
(e) Unless specifically requested by a customer on the customer's own
initiative, for a period of six months after the execution of this
Agreement, neither Restrac nor Avert will enter into a joint marketing
arrangement with a direct competitor of the other. During the entire term
of this Agreement, neither party will enter into such an arrangement
without giving the other a minimum of 60 days' prior written notice. If
either party shall enter into such an arrangement pursuant to this Section
3(e), the other party's obligations under this Section 3(e) shall
terminate.
4. Avert Warranty.
(a) Avert warrants that it has or will have all rights necessary to
provide the Services to Restrac customers, and, except for liabilities
covered by Restrac's indemnity obligations provided in Section 4(b) below,
will indemnify Restrac and hold it harmless with respect to any and all
claims arising in connection with the Services, provided that Restrac will
give Avert prompt notice of any such claim and the right to defend or
settle same.
(b) Restrac will indemnify Avert and hold it harmless with respect to
any and all claims arising from errors resulting from modifications made by
Restrac to any applicant information passed to Avert via the WebHire
system, provided that Avert shall give Restrac prompt notice of any such
claim and the right to defend or settle same.
(c) Without limiting the generality of the foregoing, Avert will
maintain all security precautions and releases necessary to ensure that
confidential information is only ordered by and released to authorized
parties.
5. Referral Fees Payable to Avert by Restrac.
(a) Avert may identify to Restrac certain customers as prospective
referrals for sales of Restrac software product licenses and WebHire
services. Such a customer will be treated as a "Referral" for purposes of
this Agreement only if Restrac so agrees in writing, and Avert effects an
introduction to the customer occurring within 30 days after such agreement.
(b) If, as a result of the introduction by Avert, a Referral purchases
a Restrac software product license and/or WebHire services within nine
months after such introduction, Restrac will pay referral fees to Avert
equal to 5% of Restrac's net first year revenue from all Restrac software
product licenses and WebHire services purchased by such Referral. Referral
fees shall not be earned on payments received by Restrac for
implementation, consulting or other services
(c) If, as a result of the introduction by Restrac, a Referral
purchases Avert services within nine months after such introduction, Avert
will pay referral fees to Restrac equal to 5% of Avert's net first year
revenue from all Avert services purchased by such Referral. Referral fees
shall not be earned on payments received by Avert for implementation and
consulting services.
6. Confidentiality.
(a) Each party agrees to treat all information of the other party
which is not generally known and which is either identified as confidential
or is normally understood to be confidential ("Confidential Information")
as confidential, and not to disclose the other party's Confidential
Information to any third party during the term hereof and for a period of
five years after the termination or expiration of this Agreement. The
existence and terms of this Agreement shall be treated as Confidential
Information, except as otherwise agreed by the parties.
(b) A party's obligation of confidentiality will not apply to
information which is known to the receiving party prior to disclosure,
which is or becomes publicly available without breach of this Agreement,
which is received from a third party or developed independently by the
receiving party, or which is required to be disclosed by court or
governmental order.
7. Independent Contractors.
The parties to this Agreement are independent contractors. Except as
expressly provided herein, neither party is authorized to enter into any
commitments on behalf of, or legally bind, the other.
8. No-Hire Commitment.
During the term of this Agreement and for one year thereafter, neither
party will hire an employee of the other party or induce an employee of the
other party to leave his or her employment.
9. Term and Termination.
(a) The initial term of this Agreement will be two years. Thereafter,
this Agreement will automatically renew for successive one-year terms,
unless either party gives the other written notice of its intention not to
renew not less than 90 days prior to the renewal date.
(b) Notwithstanding the foregoing, either party may terminate this
Agreement effective upon written notice during the continuance of a
material breach by the other party which remains uncured more than 30 days
after written notice thereof.
(c) All rights and obligations of the parties accruing prior to the
termination of this Agreement, and all rights and obligations under
Sections 4, 6 and 8 hereof shall survive such termination.
10. General.
(a) All notices hereunder shall be in writing and shall be delivered
to the attention of a party's designated contact, with a copy to its
president, at the address set forth on the first page of this Agreement, or
to such other person or address as shall have been provided by notice
hereunder. The contacts initially designated are:
Restrac: Xxxxxxx Xxxxxxxxx, Director, Business Development
Avert: Xxxxxxx Xxxx, VP of Business Development
(b) Except as expressly provided herein, a party's rights and
obligations under this Agreement are not assignable other than to its
parent or subsidiary or a successor to substantially all of its business.
(c) This Agreement is the entire agreement of the parties on the
subject hereof and supersedes all prior oral and written discussions. It
may not be modified, nor may any of its provisions be waived, other than by
a written instrument signed by the party sagainst whom such waiver or
modification is to be enforced.
(d) This Agreement shall be governed by and construed in accordance
with the laws of Massachusetts.
EXECUTED UNDER SEAL as of the date set forth above.
AVERT, INC. RESTRAC, INC.
By: /s/ Xxxxxxx Xxxx Its: VP Business Dev. By: /s/ Xxxxx Xxxxx Its: CFO
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