EXHIBIT 10.12
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of _________________ (the "Effective Date"), between xxxxxx.xxx, Inc., a
Delaware corporation with an office located at 000 Xxxxxxxxxx Xxxxxx #000, Xxxx
Xxxx, XX 00000 ("xxxxxx.xxx"), and ______________, a ____________ corporation
with an office located at ____________________________ ("Company").
Xxxxxx.xxx uses the Xxxxxx.xxx Technology and provides the Production
Services. Company operates the Company Site. Xxxxxx.xxx desires to provide
virtual tour technology and Production Services for the Company Site. In
consideration of the mutual promises and covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
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1.1 "Basic Package" means up to four scenes captured in a designated
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Property and converted into a corresponding number of Xxxxxx.xxx Images to which
the Company Site links.
1.2 "Company Site" means the collection of HTML documents residing on
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servers operated by or for Company or its affiliate, including without
limitation Company's intranet and extranet, and accessible on or after the
Effective Date by Sales Agents or the public via the Internet at the following
URL: xxxx://xxx._________.com.
1.3 "Confidential Information" means any trade secrets, confidential
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data or other confidential information oral or written relating to or used in
the business of the other party (the "Disclosing Party"), that a party may
obtain from the Disclosing Party during the Term (the "Confidential
Information"). The terms of this Agreement will constitute Confidential
Information, except to the extent that xxxxxx.xxx discloses such information in
good faith to a legitimate potential, or actual, strategic investor, investment
banker, venture capital firm or consultant.
1.4 "Xxxxxx.xxx Image" means an electronic image of a Property produced
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by or on behalf of xxxxxx.xxx.
1.5 "Xxxxxx.xxx Technology" means software and hardware, including the
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Xxxxxx.xxx for Java Software, used to capture, process and view Xxxxxx.xxx
Images.
1.6 "Xxxxxx.xxx Tour" means the combined Production Services supplied by
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xxxxxx.xxx with respect to a single Property.
1.7 "Listing ToolKits" means the co-branded printed marketing toolkits,
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including a CD ROM disk with a virtual tour demonstration, that xxxxxx.xxx
supplies to Sales Agents.
1.8 "Production Services" means the services provided by or on behalf of
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xxxxxx.xxx in producing Xxxxxx.xxx Images.
1.9 "Property" means any piece of residential or commercial real estate
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within the Territory, including without limitation new homes, offered for sale
or resale.
1.10 "Sales Agent" means any sales agent, sales representative or broker of
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the Company.
1.11 "Service Provider Network" means the network of individuals throughout
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the Territory with whom xxxxxx.xxx has entered into agreements to capture images
at designated sites on xxxxxx.xxx's behalf.
1.12 "Term" means the Initial Term of this Agreement and the Renewal
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Terms, if any, as set forth in Section 5.
1.13 "Territory" means the United States and its possessions.
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1.14 "Virtual Tour Images" means 360, three-dimensional, virtual reality,
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virtual tour, virtual walkthrough or other similar images, or production
services for such images.
2. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
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2.1 Image Capturing, Processing and Linking. Xxxxxx.xxx will have
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sole responsibility for, and will bear all costs associated with, capturing
images at designated sites through its Service Provider Network and processing
captured images to create Xxxxxx.xxx Images. Xxxxxx.xxx will host Xxxxxx.xxx
Images on its servers and will provide to Company a URL link and identifying
listing information for each Xxxxxx.xxx Image purchased by Company for the
purpose of integrating the link into listings on the Company Site. Company will
permit linking of the Company Site to Xxxxxx.xxx Images, and the parties will
use best efforts to work together to expeditiously implement, and maintain
throughout the Term, a system whereby Company will be capable of linking the
Company Site to Xxxxxx.xxx Images.
2.2 Exclusivity. Xxxxxx.xxx will be the exclusive provider of
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Virtual Tours Images for the Company Site. Company will not directly or
indirectly promote itself, or act, as a provider of Virtual Tour Images, nor
will it promote, advertise or use the services of any third party acting in such
capacity.
3. MARKETING AND PROMOTION
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3.1 Xxxxxx.xxx Obligations. Xxxxxx.xxx will include Company in
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xxxxxx.xxx's marketing launch campaign. As part of the launch, xxxxxx.xxx will:
(a) Promote the Company as a partner on the xxxxxx.xxx Web site;
(b) Include Company in marketing material and press releases, as
xxxxxx.xxx deems appropriate;
(c) Offer a special promotional at office presentations made by
xxxxxx.xxx representatives to Sales Agents during the period commencing on the
Effective Date and continuing for sixty (60) days, including one free Listing
ToolKit and three free web site postings or three free scenes when a Sales Agent
purchases three Basic Packages;
(d) Train Company's agents, as xxxxxx.xxx deems reasonable,
regarding the benefits of using the Internet in real estate and methods of
integrating virtual tours into the agent's marketing strategy.
3.2 Company Obligations. Company agrees to take the following steps to
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market, promote and facilitate orders of the Production Services:
(a) Include electronic order forms (created by xxxxxx.xxx)
permitting Sales Agents to submit orders for Production Services to xxxxxx.xxx
via the Internet;
(b) Ensure that an HTML button and the corresponding URL
provided by xxxxxx.xxx will be located on an individual listing page within 24
hours from receiving the URL link from xxxxxx.xxx;
(c) Maintain a gallery of Virtual Tour Images;
(d) As the Company deems appropriate, Company shall: (i) include
a Xxxxxx.xxx Xxxx and a brief, suitable reference to the availability of the
Production Services in the Company's print advertising in magazines, flyers,
newsletters and general mailings distributed to clients and potential clients;
(ii) collaborate with xxxxxx.xxx to develop email and
direct marketing material generated from time to time to highlight the
availability and features of the Production Services; (iii) distribute marketing
materials created by xxxxxx.xxx at seminars, presentations, training sessions
and follow-up meetings sponsored by Company regarding Internet marketing and/or
Listing Tools; and (iv) include xxxxxx.xxx at trade shows and conventions
Company attends or hosts;
(e) Agree to allow xxxxxx.xxx to promote the relationship
established under this Agreement, including, but not limited to, inclusion in
xxxxxx.xxx press releases; and
(f) Facilitate presentations by xxxxxx.xxx representatives to
Sales agents and office managers, including allowing access to the Company
offices during the period commencing on the Effective Date and continuing for
sixty (60) days and sponsoring follow-up meetings as xxxxxx.xxx and Company deem
necessary.
4. PROPRIETARY RIGHTS
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4.1 Xxxxxx.xxx Technology.
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(a) All Xxxxxx.xxx Technology, including without limitation
the Software and all Xxxxxx.xxx Images, whether or not produced for Sales Agents
and whether or not posted to or linked to the Company Site, are, and at all
times will remain, the exclusive property of xxxxxx.xxx, and no provision of
this Agreement implies any transfer to Company of any ownership interest in any
Xxxxxx.xxx Technology. Company will not reproduce, distribute, modify, edit, or
prepare derivative works from the Xxxxxx.xxx Images without the prior written
permission of xxxxxx.xxx.
(b) Xxxxxx.xxx hereby grants to Company a nonexclusive,
worldwide, royalty-free, nontransferable license to include on the Company Site
links to Xxxxxx.xxx Images on xxxxxx.xxx's servers solely for the purposes
contemplated in this Agreement.
4.2 Trademarks.
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(a) Xxxxxx.xxx owns and at all times will continue to own
the trademarks, service marks and/or trade names XXXXXX.XXX and the xxxxxx.xxx
logo, as well as any name or xxxx xxxxxx.xxx may subsequently adopt as a trade
name or to designate the Production Services (collectively, the "Xxxxxx.xxx
Marks"), and Company will not take any actions inconsistent with xxxxxx.xxx's
ownership rights. Company owns and at all times will continue to own the
trademarks, service marks and/or trade names customarily used by Company during
the Term (the "Company Marks"), and xxxxxx.xxx will not take any actions
inconsistent with Company' ownership rights. Each party's use of the other
party's marks will not create in the using party any right, title or interest
therein or thereto, and all such use will inure to the exclusive benefit of
other party.
(b) Subject to the restrictions set forth herein,
xxxxxx.xxx hereby grants Company a nonexclusive, worldwide, royalty-free, fully
paid up, nontransferable right to use the Xxxxxx.xxx Marks, during the Term,
with xxxxxx.xxx's prior written approval, which xxxxxx.xxx will not unreasonably
withhold or delay, solely in connection with promotion and marketing of the
Production Services as provided in Section 3. Subject to the restrictions set
forth herein, Company hereby grants xxxxxx.xxx a nonexclusive, worldwide,
royalty-free, fully paid up, nontransferable right to use the Company Marks,
during the Term, solely in connection with promotion and marketing of the
Production Services. At the reasonable request of either party, the other party
will provide assistance with the protection and maintenance of the marks of the
requesting party. Each party may only use the marks of the other party as
expressly permitted herein and agrees to use the marks of the other party in a
manner commensurate with the style, appearance and quality of the other party's
services and/or products bearing such marks.
4.3 Limitation on Grant of Rights. Except as expressly provided
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herein, neither party receives any other right or license to the technology or
intellectual property of the other party.
5. TERM AND TERMINATION
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5.1 Term. Unless earlier terminated as set forth below, this
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Agreement will become effective upon the Effective Date and continue until
December 31, 1999 (the "Initial Term"). Thereafter, this Agreement will be
automatically renewed for successive six (6) month periods (each such period a
"Renewal Term") unless either party notifies the other in writing not less than
thirty (30) days prior to the end of the then-current term of its intention to
terminate this Agreement as of the end of such term. Upon termination or
expiration, Company and xxxxxx.xxx will cease all use of marks of the other
party.
5.2 Termination for Breach. This Agreement will terminate in the
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event a party breaches any material term, condition or representation of this
Agreement or materially fails to perform any of its material obligations or
undertakings hereunder, and fails to remedy such default within sixty (60) days
after being notified by the non-breaching party of such breach or failure;
provided, however, that the non-breaching party will not unreasonably withhold
or delay its consent to extend the cure period if the breaching party has
commenced cure during the sixty-day notice period and pursues cure of the breach
in good faith.
5.3 Survival of Certain Terms. The provisions of Sections 4.1(a),
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4.2(a), 4.3, 5.1, 5.3, 6, 7, 8, and 9 will survive the expiration or termination
of this Agreement for any reason. All other rights and obligations of the
parties will cease upon expiration or termination of this Agreement.
6. CONFIDENTIALITY
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Each party agrees to treat the other party's Confidential Information with
the same degree of care as it maintains its own information of a similar nature.
Each party will use at least the same procedures and degree of care which it
uses to protect the confidentiality of its own Confidential Information of like
importance, and in no event less than reasonable care.
7. REPRESENTATIONS AND WARRANTIES
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Each party represents and warrants to the other that (i) it is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) it has full right, power and
authority to enter into this Agreement and to perform all of its obligation
hereunder; (iii) this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with its terms; and (iv) its execution,
delivery and performance of this Agreement will not result in a breach of any
material agreement or understanding to which it is a party or by which it or any
of its material properties may be bound. THE WARRANTIES PROVIDED BY THE PARTIES
HEREIN ARE THE ONLY WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF ALL OTHER
WARRANTIES BY THE PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT.
8. LIMITATION OF LIABILITY
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EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 2.3 OR 6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND
WITH RESPECT TO THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9. GENERAL PROVISIONS
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9.1 Notices. Any notice required or permitted by this Agreement
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will be deemed given if sent by registered mail, postage prepaid, addressed to
the other party at the address set forth at the top of this Agreement. Delivery
will be deemed effective three (3) days after deposit with postal authorities.
9.2 Miscellaneous. Nonperformance of either party will be excused
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to the extent that performance is rendered impossible by storm, lockout or other
labor trouble, riot, war, rebellion, strike, fire, flood, accident or other act
of God, governmental acts, orders or restrictions, or any other
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reason where failure to perform is beyond the control and not caused by the
gross negligence or willful misconduct of the non-performing party. The
relationship of xxxxxx.xxx and Company established by this Agreement is that of
independent contractors. This Agreement will be governed by and construed under
the laws of the State of California without reference to conflict of laws
principles. This Agreement, together with all exhibit and attachments hereto,
sets forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing signed by the party to
be charged, and the waiver of any breach or default will not constitute a waiver
of any other right hereunder or any subsequent breach or default. Neither party
may assign this Agreement, or assign or delegate any right or obligation
hereunder, without the prior written consent of the other party; provided,
however, that either party may assign this Agreement or assign or delegate its
rights and obligations under this Agreement to a successor to all or
substantially all of its business or assets relating to this Agreement whether
by sale, merger, operation of law or otherwise. This Agreement may be executed
by exchange of signature pages by facsimile and/or in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
XXXXXX.XXX, INC. [Company Name]
By:______________________________ By:______________________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
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