EXHIBIT 10.41
DISTRIBUTION AGREEMENT
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THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of January
12, 1999 (the "Effective Date"), between Jutvision Corporation, a Delaware
corporation ("Jutvision"), and GTE Enterprise Solutions, a division of GTE
Enterprise Initiatives Incorporated, a Delaware corporation ("GTE").
BACKGROUND
A. Jutvision uses the Jutvision Technology (as defined below) and provides
the Production Services (as defined below).
B. GTE operates the GTE Database (as defined below).
C. Jutvision desires to provide virtual tour technology and production
services for the GTE Database.
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 "Agreement" means this Agreement and all exhibits attached hereto.
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1.2 "Annual Period" means the twelve (12) month period commencing on
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January 1, 1999 and each consecutive twelve (12) month period thereafter during
the Initial Term.
1.3 "Basic Package" means up to four scenes captured in a designated
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Property, converted into a corresponding number of Jutvision Images and posted
to the GTE Database.
1.4 "Broker" means any realtor, real estate broker, real estate agent or
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any other agent or representative acting in a similar capacity, whether an
individual or some other type of entity, representing a seller of a Property,
who is a member of a GTE Customer.
1.5 "GTE Customer" means a Multiple Listing Service ("MLS") association
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or board or a corporation which licenses the System 4 Product from GTE.
1.6 "GTE Database" means the collection of data and documents residing on
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servers operated by or for GTE or its affiliates or a GTE Customer and
accessible on or after the Effective Date by Brokers via the System 4 Product
and, to the extent GTE makes such collection generally available, by Brokers and
the public via the Internet.
1.7 "GTE Originated Order" means any order received by Jutvision for a
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Basic Package or Upgrade Package placed by a Broker via the System 4 Product.
1.8 "Initial Posting Date" means date on which Jutvision will commence
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providing Production Services and GTE will begin receiving postings of Jutvision
Images under this Agreement, as further provided in Section 2.2.
1.9 "Jutvision Image" means an electronic Virtual Tour Image of a
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Property produced by or on behalf of Jutvision.
1.10 "Jutvision Technology" means software and hardware, including the
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Software, used to capture, process and view Jutvision Images.
1.11 "Listing Overview Screen" means the screen within the System 4
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Product displaying the results of a search of listings in the GTE Database.
1.12 "Net Revenues" means the gross amount received by Jutvision from
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Brokers for sales of the Basic Packages and Upgrade Packages less (i) refunds,
discounts, credits and allowances, (ii) packaging, handling fees, freight, and
sales taxes and other governmental charges, and (iii) reasonable provisions for
doubtful collections determined in accordance with GAAP.
1.13 "Production Services" means the services provided by or on behalf of
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Jutvision in preparing the Basic Packages and Upgrade Packages.
1.14 "Property" means any piece of residential, commercial or unimproved
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real estate within the Territory, including without limitation new homes,
offered for sale or resale.
1.15 "Service Provider Network" means the network of members throughout
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the Territory with whom Jutvision has entered into agreements to capture images
at designated sites on Jutvision's behalf.
1.16 "Software" means the Jutvision for Java Software.
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1.17 "System 4 Product" means GTE's System 4 browser and System 4
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workstation, including without limitation all future upgrades and versions of
such browser and workstation, whether or not marketed by GTE under a different
name, that Brokers use to access listings and other information in the GTE
Database, as well as to contact, and submit orders to, third parties for certain
products and services, including the Production Services, as specifically set
forth in Exhibit A.
1.18 "Term" means the Initial Term of this Agreement and the Renewal
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Terms, if any, as set forth in Section 6.
1.19 "Territory" means the United States and its possessions.
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1.20 "Transaction Fee" means the monthly fee Jutvision will pay to GTE
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during the Term based on sales of Basic Packages and Upgrade Packages as
provided in Section 4.1.
1.21 "Upgrade Package" means an addition to a Basic Package consisting of
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one additional scene captured at the same designated Property of the Basic
Package, converted into one additional Jutvision Image for the scene captured
and posted to the GTE Database.
1.22 "Virtual Tour Images" means 360(degrees) images through which a user
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can navigate with pointing device, or technology or production services for such
images.
2. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
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2.1 Sales and Billing. Jutvision will be responsible for receiving and
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fulfilling orders for Basic Packages and Upgrade Packages. Jutvision will
assume all costs and responsibility for invoicing and collecting revenues for
all sales of Basic Packages and Upgrade Packages.
2.2 Image Capturing, Processing and Posting. The parties will work
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together to implement a system whereby Jutvision will be capable of posting
Jutvision Images to the GTE Database. The parties will also work together on
file naming formats and scripts that will attach the Jutvision Images to the
appropriate listings on the GTE Database, including a method to indicate the
originating GTE Customer. Jutvision and GTE agree to set March 1, 1999 as a
target for the Initial Posting Date. However, in no event will the Initial
Posting Date occur later than May 1, 1999. If, despite the parties' reasonable
commercial efforts, the Initial Posting Date occurs after May 1, 1999, then,
notwithstanding Section 4.1(a), Transaction Fees on all Annual Initial Orders
(as defined below) will be calculated solely in accordance with Section 4.1(b)
for the twelve (12) month period commencing on the Initial Posting Date and will
not be calculated in accordance with Section 4.1(a) for such period. The parties
understand and agree that (i) Jutvision will not attempt to post any Jutvision
Images to the GTE Database prior to the Initial Posting Date and (ii) no penalty
or breach of the terms of this Agreement will result from GTE's failure to begin
receiving postings of Jutvision Images on the Initial Posting Date. GTE will
provide Jutvision with written notice of the actual Initial Posting Date, which
Jutvision will promptly confirm in a reply written notice sent to GTE. Jutvision
will have sole responsibility for, and will bear all costs associated with,
capturing images at designated sites through its Service Provider Network,
processing captured images to create Jutvision Images and posting Jutvision
Images to the GTE Database. GTE will permit such postings and will work with
Jutvision to maintain the ability of the GTE Database to receive such postings
throughout the Term. Jutvision will use commercially reasonable efforts to
process and post each Jutvision Image on behalf of all Brokers within four (4)
business days after capture of the images, in each case to the extent Jutvision
has the right to do so, provided that such posting is not delayed by factors
attributable to GTE or Brokers. In addition, Jutvision will use commercially
reasonable efforts to make a member of its Service Provider Network available to
capture Jutvision Images of a Property within forty-eight (48) hours of
receiving an order for Production Services from a Broker.
2.3 Exclusivity.
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(a) Subject to Section 2.3(b), during the Term, GTE will not
directly or indirectly (i) promote or market itself or any third party, on the
System 4 Product or in association therewith, as a provider of Virtual Tour
Images for Property; (ii) provide the services of capturing or processing
Virtual Tour Images for Property; (iii) use the services of, or enter into any
arrangement under which services will be provided by, any third party with
respect to capturing or processing Virtual Tour Images for Property; or (iv)
permit any Virtual Tour Images for Property (other than those supplied by
Jutvision) or any site or identity of a third party provider of Virtual Tour
Images for Property, or technology or services therefor, to be posted to, linked
to or otherwise made accessible through the GTE Database.
(b) At any time after the Initial Posting Date during the Term, GTE
may, in its sole discretion, elect to terminate Section 2.3(a) upon thirty (30)
days' prior written notice to Jutvision, thereby making the Agreement non-
exclusive; provided, however, that, if GTE makes such an election, as of the
effective date of the non-exclusivity period and throughout the remainder of the
Term, notwithstanding Section 4.1(a) and Section 11.2(b) to the contrary,
Transaction Fees on all Annual Initial Orders (as defined below) will be
calculated solely in accordance with Section 4.1(b) and will not be calculated
in accordance with Section 4.1(a) and 11.2(b) will immediately terminate and
none of the restrictions set forth in Section 11.2(b) will continue to apply.
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(c) Nothing in this Agreement is intended or shall be construed to
limit the ability of any GTE Customer directly or indirectly to (i) promote or
market itself or any third party, on the System 4 Product or elsewhere, as a
provider of Virtual Tour Images; (ii) provide the services of capturing or
processing Virtual Tour Images; (iii) use the services of, or enter into any
arrangement under which services will be provided by, any third party with
respect to capturing or processing Virtual Tour Images; or (iv) permit any
Virtual Tour Images or any site or identity of a third party provider of Virtual
Tour Images, or technology or services therefor, to be posted to, linked to or
otherwise made accessible through the GTE Database. Such actions for GTE
Customers shall not be deemed to be actions of GTE for purposes of Sections 2.3
(a) or (b).
(d) The following restrictions will govern display of any
advertisements of any competitor of Jutvision within the System 4 Product or on
pages retrieved via the System 4 Product:
(i) As long as this Agreement is exclusive pursuant to this
Section 2.3, GTE will not display any advertisements of any competitor of
Jutvision anywhere within the System 4 Product or on pages retrieved via the
System 4 Product without the prior approval of Jutvision; provided, however,
that, if a GTE Customer has entered into an agreement with one or more
competitors of Jutvision to provide Virtual Tour Images for Property listings of
such GTE Customer, GTE may display advertisements of such competitor(s), but no
other competitor(s) of Jutvision, within the System 4 Product licensed to such
GTE Customer or on pages retrieved via the System 4 Product licensed to such GTE
Customer; provided, further, that, notwithstanding the foregoing, in no event
may GTE display any advertisements of any competitor of Jutvision on any page
retrieved via the System 4 Product that contains a Jutvision Image.
For the purposes of this Section 2.3(d), competitors of Jutvision include,
without limitation, IPIX, Live Picture and XxXxxx.
2.4 Support. Jutvision will establish and maintain a "mailto" link on the
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System 4 Product that Brokers may use to send support-related e-mail messages to
Jutvision. Jutvision will also establish and maintain a toll-free support
telephone line Brokers may call with support questions. The hours of operation
for the support telephone line and for monitoring and responding to support-
related e-mail messages will be business days (excluding bank holidays) from
9:00 am to 8:00 pm Eastern time. From time to time, if the GTE Customer is
receiving GTE help desk services related to the System 4 Product, GTE may
respond to questions arising from such GTE Customer. If GTE, GTE Customer or
Broker detects any bug or material error in the Jutvision Technology, GTE, GTE
Customer or Broker may contact Jutvision technical staff for emergency support,
Jutvision will respond to GTE's, GTE Customer's or Broker's emergency support
request within twenty-four (24) hours and Jutvision will use commercially
reasonable efforts to correct such bug or material error promptly.
3. MARKETING AND PROMOTION
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3.1 Obligations. GTE represents that each GTE Database is proprietary to
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an applicable GTE Customer. Jutvision understands and agrees that, prior to
Jutvision or GTE offering any Production Services to Brokers that are members of
any GTE Customer, GTE must obtain the prior approval of such GTE Customer. GTE
agrees to use commercially reasonable efforts to obtain such prior approval.
Subject to the foregoing, GTE agrees to market, promote and facilitate sales of
the Production Services as provided in Exhibit A attached hereto.
3.2 Additional Obligations. The parties shall undertake the following
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additional obligations:
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(a) Jutvision and GTE will, from time to time, use reasonable
efforts to cooperate in joint marketing efforts for the Production Services on
such terms and conditions as are mutually agreed. Each party will assign a
project manager to act as the primary liaison with respect to the relationship
provided for hereunder, and all discussions between the parties with respect to
the respective performance of obligations hereunder will be conducted by these
project managers or their designees.
(b) The parties will cooperate with each other in the performance of
their obligations under this Agreement.
4. FEES
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4.1 Transaction Fees. During the Term, Jutvision will pay monthly
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Transaction Fees to GTE as follows:
(a) With respect to the first 100,000 GTE Originated Orders
fulfilled by Jutvision during each Annual Period of the Initial Term for
Jutvision Images posted to the GTE Database (the "Annual Initial Orders"),
Jutvision will pay to GTE for each calendar month
(i) the [*] for each Basic Package so sold for which Jutvision
has received payment during the month [*] of Net Revenues collected from sales
of Basic Packages so sold during the month; and,
(ii) the [*] for each Upgrade Package so sold for which
Jutvision has received payment during the month [*] of Net Revenues collected
from sales of Upgrade Packages so sold during the month;
provided, however, that, in the event that GTE facilitates the default loading
of a Jutvision Image, on or before June 1, 1999, on the Listing Overview Screen
for each and every listing of a Property that has a corresponding Jutvision
Image ("Default Loading"), thereby replacing the current default of a still
photograph, for as long as GTE maintains Default Loading Jutvision will pay to
GTE for each calendar month with respect to Annual Initial Orders
(iii) the [*] for each Basic Package so sold for which Jutvision
has received payment during the month [*] of Net Revenues collected from sales
of Basic Packages so sold during the month and
(iv) the [*] for each Upgrade Package so sold for which
Jutvision has received payment during the month [*] of Net Revenues collected
from sales of Upgrade Packages so sold during the month; and,
(v) provided, further, that such increased percentage/minimum
per unit payment will apply retroactively to all Net Revenues collected from
sales on Annual Initial Orders made prior to the date of such percentage
increase, and Jutvision shall make a payment to GTE to adjust for such
retroactive increase.
(b) With respect to all GTE Originated Orders, other than Annual
Initial Orders, fulfilled by Jutvision during the Term for Jutvision Images
posted to the GTE Database, Jutvision will pay to GTE for each calendar month
(i) the [*] for each Basic Package so sold for which Jutvision has received
payment during the month [*] of Net Revenues collected from sales of Basic
Packages so sold during the month and (ii) the [*] for each Upgrade Package so
sold for which
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Jutvision has received payment during the month [*] of Net Revenues collected
from sales of Upgrade Packages so sold during the month.
(c) With respect to all sales of Production Services by Jutvision,
for Jutvision Images posted to the GTE Database, that do not directly result
from GTE Originated Orders, Jutvision will pay to GTE for each calendar month
(i) the [*] for each Basic Package so sold for which Jutvision has received
payment during the month [*] of Net Revenues collected from sales of Basic
Packages so sold during the month and (ii) the [*] for each Upgrade Package so
sold for which Jutvision has received payment during the month [*] of Net
Revenues collected from sales of Upgrade Packages so sold during the month.
(d) No Transaction Fees will be due hereunder (i) with respect to
Production Services or Jutvision Images sold to third parties other than as
expressly set forth above and (ii) with respect to any Production Services
Jutvision distributes free of charge on a promotional basis.
(e) Jutvision represents that it is not Jutvision's practice to
enter into [*] (as defined herein) and agrees that, during the Term, if
Jutvision enters into an agreement with [*] containing any clause or provision
restricting Jutvision's ability [*] to any third party on terms more favorable
than those offered to [*], as the case may be, (a "[*] Partner Clause") then
Jutvision will amend this Agreement to include the same [*] Partner Clause
herein provided the [*] to GTE shall not [*].
(f) As of the Effective Date, excluding any applicable taxes,
Jutvision will charge Brokers of GTE Customers [*] for each Basic Package and
[*] for each Upgrade Package (the "GTE Broker Prices"). During the period
commencing on the Effective Date and extending until January 1, 2000, Jutvision
may not increase such GTE Broker Prices by more than [*]; provided, however,
that Jutvision may modify such GTE Broker Prices thereafter in its sole
discretion.
4.2 Invoices; Reports; Payment of Fees. Calculation of monthly
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Transaction Fees will commence immediately for the calendar month in which the
Initial Posting Date occurs. Jutvision will make all payments of Transaction
Fees net thirty (30) days from the end of each calendar month. With each
monthly payment, Jutvision will provide a report stating the number of Basic
Packages and Upgrade Packages sold in accordance with Sections 4.1(a) and 4.1(b)
and 4.1(c) during the month and providing a calculation of the Transaction Fees
payable. This report will also contain data notifying GTE of the GTE Customer
originating the listings corresponding to the Production Services sold during
the relevant calendar month.
4.3 Inspection of Records. GTE will have the right, at its own expense
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and not more than once in any twelve (12) month period, to authorize an
independent auditor reasonably acceptable to both parties to inspect those
accounting records of Jutvision necessary to verify the accuracy of fees paid or
invoiced by Jutvision under the terms of this Agreement, provided that such
independent auditor has executed a confidentiality agreement with respect to
such records that is reasonably acceptable to Jutvision. Such inspections will
take place during Jutvision's normal business hours, upon not less than twenty
(20) days' prior written to Jutvision and on a date mutually agreed upon by the
parties. In the event such auditors find an underpayment in Transaction Fees
paid to GTE of more than five (5%) of the total Transaction Fees due and payable
to GTE for the period at issue, Jutvision shall pay such shortfall to GTE
immediately and shall reimburse GTE for the cost of such audit.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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5. PROPRIETARY RIGHTS
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5.1 Software.
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(a) Jutvision hereby grants to GTE a nonexclusive, worldwide,
royalty-free license to use the Software during the Term, in object code only,
to display Jutvision Images on pages retrieved from the GTE Database via the
System 4 Product. "Use" means storing, loading, installing, executing or
displaying the Software. GTE may not modify the Software or disable any
licensing or control features of the Software.
(b) The Software is owned and copyrighted by Jutvision. The license
set forth in this Section 5.1 confers no title to, nor ownership in, the
Software and is not a sale of any rights in the Software.
(c) GTE may only make copies or adaptations of the Software for
archival purposes or when copying or adaptation is an essential step in the
authorized use of the Software. GTE must reproduce all copyright notices in the
original Software on all copies or adaptations. GTE may only transfer class
files when they are called on by a "requesting" server in the normal course of
Java Applet execution. GTE may not distribute the Jutvision for Java Class
files. Any transfer or copying of the Software by GTE other than as expressly
provided herein constitutes a material breach of this Agreement.
(d) GTE may only use the Software to read .jut files, a file format
proprietary to Jutvision.
(e) GTE may not tamper with or alter in any way the image displayed
when loading each Jutvision Image ("Jutvision Splash Screen") and GTE shall not
hinder the Jutvision Splash Screen from being fully visible upon loading of each
Jutvision Image. GTE will not obstruct in any way the Jutvision Splash Screen
and/or screen logo with any other images, frames, tables or any other HTML or
JavaScript code.
(f) GTE will not disassemble or decompile the Software including
single Jutvision Java Class files under any circumstances. The disassembly or
decryption by GTE of any Jutvision Java Class file constitutes a material breach
of this Agreement.
(g) GTE will not export or re-export the Software or any copy or
adaptation in violation of any applicable laws or regulations.
(h) The Software and any accompanying documentation have been
developed entirely at private expense. In so far as the United States government
or any agency thereof may acquire any rights under this Agreement, the Software
and any accompanying documentation are delivered and licensed as "commercial
computer software" as defined in DFARS 252.227-7013 (Oct 1988), DFARS 252.211-
7015 (May 1991) or DFARS 252.227-7014 (Jun 1995), as a "commercial item" as
defined in FAR 2.101(a), or as "Restricted computer software" as defined in FAR
52.227-19 (Jun 1987)(or any equivalent agency regulation or contract clause),
whichever is applicable. The United States government or agency thereof shall
have only those rights provided for such Software and any accompanying
documentation by the applicable FAR or DFARS clause consistent with this
Agreement between GTE and Jutvision.
5.2 Jutvision Images.
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(a) All Jutvision Images, whether or not produced for GTE Customers
and whether or not posted to the GTE Database or displayed via the System 4
Product, are, and at all times will remain, the exclusive property of Jutvision,
and no provision of this Agreement implies any transfer to GTE of any ownership
interest in any Jutvision Image.
(b) Jutvision hereby grants to GTE a nonexclusive, worldwide,
royalty-free, nontransferable license to display, perform and reproduce
Jutvision Images on pages retrieved from the GTE Database via the System 4
Product solely for the purposes contemplated in this Agreement. GTE will not
distribute, modify, edit, or prepare derivative works from the Jutvision Images
without the prior written permission of Jutvision. The foregoing license does
not include any right to grant or authorize sublicenses.
5.3 Trademarks.
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(a) Jutvision Marks.
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(i) Jutvision owns and at all times will continue to own the
trademarks, service marks and/or trade names JUTVISION and the Jutvision logo
(the "Jutvision Marks"). GTE will not take any actions inconsistent with
Jutvision's ownership rights.
(ii) Subject to the restrictions set forth herein, Jutvision
hereby grants GTE a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Jutvision Marks, during the Term of this
Agreement, with Jutvision's prior written approval, which Jutvision will not
unreasonably withhold or delay, solely in connection with promotion and
marketing of the Production Services as provided in Section 3 and Exhibit A
attached hereto. GTE's use of the Jutvision Marks will not create in GTE any
right, title or interest therein or thereto. All use by GTE of the Jutvision
Marks will inure to the exclusive benefit of Jutvision. At Jutvision's
reasonable request and at Jutvision's sole expense, GTE will assist Jutvision
with the protection and maintenance of the Jutvision Marks. GTE may only use the
Jutvision Marks as expressly permitted herein. GTE agrees to use the Jutvision
Marks in a manner commensurate with the style, appearance and quality of
Jutvision's services and/or products bearing such marks.
(b) GTE Marks.
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(i) GTE owns and at all times will continue to own the
trademarks, service marks and/or trade names GTE, the GTE logo and the System 4
logo (the "GTE Marks"). Jutvision will not take any actions inconsistent with
GTE's ownership rights.
(ii) Subject to the restrictions set forth herein, GTE hereby
grants Jutvision a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the GTE Marks, during the Term of this Agreement,
with GTE's prior written approval, which GTE will not unreasonably withhold or
delay (i) on a case-by-case basis on Jutvision's Web site provided that any such
use will link to a GTE-specified URL and (ii) in Jutvision's marketing material.
Jutvision's use of the GTE Marks will not create in Jutvision any right, title
or interest therein or thereto. All use by Jutvision of the GTE Marks will inure
to the exclusive benefit of GTE. At GTE's reasonable request and at GTE's sole
expense, Jutvision will assist GTE with the protection and maintenance of the
GTE Marks. Jutvision may only use the GTE Marks as expressly permitted herein.
Jutvision agrees to use the GTE Marks in a manner commensurate with the style,
appearance and quality of GTE's services and/or products bearing such marks.
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5.4 Limitation on Grant of Rights. Except as expressly provided herein,
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neither party receives any other right or license to the technology or
intellectual property of the other party.
6. TERM AND TERMINATION
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6.1 Term. Unless earlier terminated as set forth below, this Agreement
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will become effective upon the Effective Date and continue for a period of two
(2) years measured from the Initial Posting Date (the "Initial Term").
Thereafter, this Agreement will be automatically renewed for successive one (1)
year periods (each such period a "Renewal Term") unless either party notifies
the other in writing not less than ninety (90) days prior to the end of the
then-current term of its intention to terminate this Agreement as of the end of
such term.
6.2 Termination. This Agreement will terminate, without notice, (i) upon
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the institution by or against either party of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of the
party's debts; (ii) upon either party's making an assignment of substantially
all of its assets for the benefit of creditors; (iii) upon either party's
dissolution or cessation of business; or (iv) in the event a party materially
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 thirty (30) 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 thirty-day notice period and pursues cure of the breach in good
faith.
6.3 Effects of Termination. Upon expiration or termination of this
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Agreement:
(a) Jutvision will cease all use of the GTE Marks;
(b) Commensurate with the quality of services provided prior to such
expiration or termination, Jutvision will continue to provide Production
Services and support to third parties who purchased such Production Services
prior to such expiration or termination;
(c) GTE will cease all use of the Jutvision Marks, the Jutvision
Technology and the Jutvision Images and shall purge all Jutvision Technology and
Jutvision Images from its servers; provided, however, that, following any
expiration or termination, the licenses granted above under Sections 5.1 and
5.2, with respect to the Software and Jutvision Images provided to GTE hereunder
prior to expiration or termination, and to the extent that such Jutvision Images
accompany listings on the GTE Database and the Software is necessary to display
such Jutvision Images, shall survive until the end of any then-current term of
any agreement between GTE and a GTE Customer providing for the display of such
Jutvision Images.
(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
6.4 Survival of Certain Terms. The provisions of Sections 5.1(b),
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5.1(e), 5.1(f), 5.1(g), 5.1(h), 5.2(a), 5.3(a)(i), 5.3(b)(i), 5.4, 6.3, 6.4, 7,
8, 9, 10, 11.1, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11 and 11.12
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.
7. CONFIDENTIALITY
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7.1 Definition. "Confidential Information" means any trade secrets,
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confidential data or other confidential information relating to or used in the
business of the other party (the "Disclosing Party"), that a party (the
"Receiving Party") may obtain from the Disclosing Party during the Term (the
"Confidential Information"), except as herein provided, and that is marked
"Confidential," "Proprietary" or in a similar manner to indicate its
confidential nature. Confidential Information may also include oral information
disclosed pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and confirmed in writing as
confidential within thirty (30) days after its oral disclosure, which is marked
in a manner to indicate its confidential nature and delivered to the Receiving
Party. The terms of this Agreement and the existence of this Agreement will
constitute Confidential Information.
7.2 General. The Receiving Party shall hold the Disclosing Party's
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Confidential Information in confidence, shall use it only for the purposes of
this Agreement, shall not disclose it to any third parties (other than wholly
owned affiliates owned directly or indirectly by a common parent of the
Receiving Party which affiliates shall be bound to the same obligation of non-
disclosure to third parties as the Receiving Party) without the written consent
of the Disclosing Party and shall treat the Disclosing Party's Confidential
Information with the same degree of care as the Receiving Party maintains its
own information of a similar nature. Without limiting the foregoing, the
Receiving 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.
7.3 Exceptions. The foregoing restrictions will not apply to information
----------
that (i) is known to the Receiving Party at the time of disclosure by the
Disclosing Party; (ii) is or becomes publicly known through no wrongful act of
the Receiving Party; (iii) is rightfully received from a third party without
restriction; (v) is independently developed by the Receiving Party; (v) has been
approved for release by written authorization of the Disclosing Party; (vi) is
not marked or similarly designated as confidential, and is provided for a
purpose or in a manner that reasonably contemplate, or would naturally be
understood to contemplate, disclosure or use by others; and (vii) is disclosed
pursuant to a valid order of any governmental authority provided that the
Receiving Party in such circumstances has given the Disclosing Party prompt
notice prior to making such disclosure so that the Disclosing Party may seek a
protective order or other appropriate remedy prior to such disclosure.
7.4 The parties acknowledge and agree that any breach of this Section may
result in irreparable harm to the non-breaching party for which there may be no
adequate remedy at law for any such breach. The non-breaching party will be
entitled to seek injunctive or other equitable relief from a court of competent
jurisdiction to prevent unauthorized or unlawful disclosure.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
8.1 Each party represents and warrants to the other that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation set forth above and
is duly qualified and authorized to do business as a foreign corporation in good
standing in all jurisdictions in which the nature of its assets or business
requires such qualification;
(b) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
-10-
(c) its execution, delivery and performance of this Agreement have
been duly and properly authorized by all necessary actions and this Agreement
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms; and
(d) its execution, delivery and performance of this Agreement will
not, with or without the giving of notice or passage of time, or both, conflict
with, or result in a default or loss of rights under, any provision of its
certificate of incorporation or by-laws or any other material agreement or
understanding to which it is a party or by which it or any of its material
properties may be bound.
8.2 Jutvision represents and warrants to GTE that Jutvision owns the
Software and the Jutvision Marks and, to the best of its knowledge, the Software
and the Jutvision Marks (i) do not infringe on any copyright, trademark or other
proprietary right of any third party; (ii) do not in any way violate or infringe
on any party's privacy right, right of publicity or any other right of any
person or entity; and (iii) do not contain any material that is unlawful,
hateful, obscene libelous, threatening or defamatory. If a proceeding based on
a claim that the Software constitutes an infringement, misappropriation, or
violation of any intellectual property of a third party is brought against GTE,
Jutvision shall, at its expense, indemnify, defend or settle the claim and shall
pay all damages, costs and expenses awarded against GTE, and all reasonable
legal fees and expenses, subject to the following:
(a) the Software must have been used within the scope of this
Agreement;
(b) GTE must have given Jutvision prompt written notice of the
claim;
(c) GTE must give Jutvision complete authority, information and
cooperation reasonably necessary to defend the claim;
(d) GTE must not settle or compromise the claim without Jutvision's
written consent unless Jutvision refuses in writing to defend or fails to defend
such claim after notice thereof;
(e) the claim must not:
(i) be based on GTE's:
(1) use of an altered version of the Software if such
alterations were done by persons other than Jutvision, its agents or
contractors;
(2) use of the Software in combination, operation, or use
with any programs or equipment not supplied by Jutvision, if such infringement,
misappropriation or violation would have been avoided by the combination,
operation, or use of the Software with items supplied or specified by Jutvision;
or,
(ii) be based solely on GTE's use of other software.
8.3 GTE represents and warrants to Jutvision that GTE owns the GTE Marks.
8.4 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE
----------
ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
-11-
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE SUBJECT MATTER OF THIS AGREEMENT.
9. INDEMNIFICATION.
---------------
9.1 Each party (the "Indemnifying Party") will indemnify, defend and hold
harmless the other party and its officers, directors, agents, employees,
successors and permitted assigns (hereinafter collectively the "Indemnified
Party") from and against any and all losses, claims, suits, proceedings,
liabilities, expenses (including reasonable attorneys' fees and expenses),
causes of action, damages and costs (collectively "Claims") arising out of or in
connection with the breach, potential breach or inaccuracy of, or failure to
comply with, any of the representations and warranties contained in Section 8 on
the part of the Indemnifying Party
9.2 Jutvision will defend GTE and its officers, directors, agents,
employees, successors and permitted assigns against any and all Claims arising
out of or in connection with any personal injuries or harm to personal property
to the extent resulting from the negligence or willful misconduct of any member
of Jutvision or Jutvision's Service Provider Network.
9.3 Jutvision will defend GTE and its officers, directors, agents,
employees, successors and permitted assigns against any and all Claims
instituted by Brokers arising out of or in connection with any personal injuries
or harm to personal property to the extent resulting from the negligence or
willful misconduct of Jutvision or Jutvision's Service Provider Network.
9.4 Any Indemnified Party entitled to indemnification under this Section
will give prompt notice to the indemnifying Party of any Claim with respect to
which it seeks indemnification, but the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability except to the
extent that it is actually prejudiced by such delay. The Indemnifying Party
shall assume, at its sole cost and expense, the defense of such Claim with
counsel reasonably satisfactory to the Indemnified Party. The Indemnifying Party
will not be subject to any liability for any settlement made without its
consent. The Indemnifying Party shall not, without consent of the Indemnified
Party, effect any settlement or discharge or consent to the entry of any
judgment, unless such settlement or judgment includes as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
general release from all liability in respect of such claim or litigation.
10. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 7 THROUGH NELIGENCE, WILFUL OR INTENTIONAL CONDUCT, 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.
11. GENERAL PROVISIONS
------------------
11.1 Independent Contractors. The relationship of Jutvision and GTE
-----------------------
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed
-12-
to (i) give either party the power to direct and control the day-to-day
activities of the other, (ii) constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint undertaking, or
(iii) allow either party to create or assume any obligation on behalf of the
other for any purpose whatsoever. All financial and other obligations associated
with a party's business are the sole responsibility of that party.
11.2 Press Plans.
-----------
(a) The parties agree to participate in a joint press announcement
regarding the relationship entered into hereunder that will take place on a
mutually agreed upon date. The parties shall agree to the form and content of
the joint press release. Either party may issue its own press release, subject
to the other party's prior approval, not to be unreasonably withheld, of the
content within the release.
(b) Provided that the effective date is no later than January 12,
1999, Jutvision agrees not to announce publicly any agreement with [*] until the
later of the following events occurs: (i) thirty (30) days after the Effective
Date or (ii) the date on which, in Jutvision's sole opinion, [*] demonstrate to
Jutvision a [*] of Productions Services.
11.3 Governing Law; Arbitration. This Agreement will be governed by and
--------------------------
construed under the laws of the State of California without reference to
conflict of laws principles. Any dispute or claim arising out of or in relation
to this Agreement, or the interpretation, making, performance, breach or
termination thereof, shall be finally and exclusively settled by binding
arbitration under the commercial arbitration rules (the "Rules") of the American
Arbitration Association ("AAA"). Within twenty (20) days of giving or receiving
of notice of arbitration, Jutvision on the one hand and GTE on the other hand
shall appoint one independent arbitrator, and within twenty (20) days
thereafter, the two arbitrators shall appoint a third arbitrator. If the two
cannot agree upon a third arbitrator, the AAA shall appoint a third. The
arbitration hearing shall be commenced within sixty (60) days of the third
arbitrator's appointment. The arbitral proceedings and all pleadings and
written evidence shall be in the English language. Any written evidence
originally in a language other than English shall be submitted in English
translation accompanied by the original or a true copy thereof. Judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, before, during or after
arbitration, any party may apply to any court for a temporary restraining order,
preliminary injunction or other equitable relief where such relief is necessary
to protect its interests pending completion of the arbitration proceedings or to
implement or enforce any arbitration ruling in any court having proper
jurisdiction located in the district in which the alleged action of the other
party occurred. The prevailing party (plaintiff or defendant, as the case may
be) shall be entitled to recover, in addition to any other relief awarded, its
reasonable costs and expenses, including without limitation attorneys' and
expert witness fees, incurred in the proceeding.
11.4 Entire Agreement. This Agreement 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.
11.5 Notices. Any notice required or permitted by this Agreement will be
-------
deemed given if sent by registered mail, postage prepaid, addressed to the other
party at the address set forth below or at
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-13-
such other address for which such party gives notice hereunder. Delivery will be
deemed effective three (3) days after deposit with postal authorities.
If to GTE: Vice President and General Manager
GTE Enterprise Solutions
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
If to Jutvision: Chief Executive Officer
Jutvision Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to: A. Xxxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
11.6 Force Majeure. Nonperformance of either party will be excused 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 reason where
failure to perform is beyond the control and not caused by the gross negligence
or willful misconduct of the non-performing party.
11.7 Non-Assignability and Binding Effect. Except as expressly provided
------------------------------------
herein, this Agreement may not be assigned or transferred, or may any right or
obligation hereunder be assigned or delegated, to a third party by either party
without the prior written consent of the other party hereto. Notwithstanding
the foregoing, 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. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
11.8 Modification; Waiver. 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.
11.9 Headings. The headings to the sections and subsections of this
--------
Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
-14-
11.10 Severability. In the event that it is determined by a court of
------------
competent jurisdiction as part of a final nonappealable ruling, government
action or binding arbitration, that any provision of this Agreement (or part
thereof) is invalid, illegal, or otherwise unenforceable, such provision will be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement will remain in full force and
effect and bind the parties according to its terms. To the extent any provision
(or part thereof) cannot be enforced in accordance with the stated intentions of
the parties, such provision (or part thereof) will be deemed not to be a part of
this Agreement.
11.11 Counterparts; Facsimile Signatures. 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.
11.12 Legal Counsel. Each party acknowledges that it has legal counsel who
-------------
has reviewed this Agreement, has advised such party during any negotiations
pertaining to this Agreement, and has explained such party's rights and
obligations under this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
JUTVISION CORPORATION GTE ENTERPRISE SOLUTIONS,
a division of GTE Enterprise
Initiatives Incorporated
By: /s/ Xxxxxx Field By: /s/ Xxxxxx Xxxxxx
_________________________ ____________________________
Xxxxxx Field Xxxxxx Xxxxxx
Vice President Vice President and General Manager
-15-
EXHIBIT A
---------
Marketing and Promotions
GTE agrees to use commercially reasonable efforts to market to GTE Customers the
Jutvision Production Services.
For GTE Customers who provide GTE with written permission to offer their
subscriber or member Brokers the Production Services, GTE and Jutvision will
market and promote the Production Services to Brokers as follows:
Order Origination
System 4 Workstation: For GTE Customers who use the System 4 Workstation:
--------------------
The System 4 Workstation main menu lists the key program functions including the
"Web" function (also labelled "Home" in some versions). When the user clicks on
the "Web" button, a Web Browser Module, capable of rendering HTML, is loaded.
The first displayed HTML page lists key information and e-commerce links. On
this page, viewable without scrolling on an 800 x 600 pixel display, is a button
(or link), which will include a Jutvision logo (Jutvision Eyeflash icon) and
shall be labelled "Order Virtual Tour" (the "Order Button"). From time to time,
and upon the mutual agreement of GTE and Jutvision, the text on the Order Button
may be changed. Additionally, GTE, at its sole discretion, shall have the right
to remove the Jutvision logo provided that it has first elected to convert the
Agreement to a non-exclusive basis in accordance with the terms of Section
2.3(b) of the Agreement. At GTE's sole discretion, GTE also may include graphics
or animations on the Order Button, provided that they do not promote or
otherwise reference any third-party Virtual Tour providers for so long as the
initial Agreement remains exclusive under section 2.3.. Until such time as GTE
provides the System 4 [*] (described below), the Order Button will be a minimum
4096 pixels in area; thereafter, there will be no minimum area for the Order
Button
When the user presses the Order Button, the Web Browser Module will render an
HTML page (the "Order Page") which will be designed by either GTE or Jutvision,
and which will be hosted on a Jutvision-designated server. GTE and Jutvision
will mutually agree on the design, and hosting of the Order Page, and neither
party's consent shall be unreasonably withheld. The order page will have all the
data entry fields required for a Broker to place an order for Production
Services and for Jutvision to fulfill and xxxx for the ordered Production
Services. At a minimum the Order Page will contain both Jutvision's and GTE's
logos. No other logos will be displayed on the Order Page. No links will be
placed on the Order Page without GTE's express written approval. No products
other than the Production Services will be advertised, mentioned, or offered for
sale without GTE's express written approval.
System 4 Browser: For GTE Customers who use the System 4 Browser:
----------------
The System 4 Browser main menu lists the key program functions including the
"Home" function (name subject to change). When the user clicks on the "Home"
button, an HTML page is loaded which lists key information and e-commerce links.
On this page, viewable without scrolling on an 800 x 600 pixel
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
display, is a button (or link), which will include a Jutvision logo (Jutvision
Eyeflash icon) and shall be labelled "Order Virtual Tour" (the "Order Button").
From time to time, and upon the mutual agreement of GTE and Jutvision, the text
on the Order Button may be changed. Additionally, GTE, at its sole discretion,
shall have the right to remove the Jutvision logo provided that it has first
elected to convert the Agreement to a non-exclusive basis in accordance with the
terms of Section 2.3(b) of the Agreement. At GTE's sole discretion, GTE also may
include graphics or animations on the Order Button, provided that they do not
promote or otherwise reference any third-party Virtual Tour providers for so
long as the initial Agreement remains exclusive under section 2.3. Until such
time as GTE provides the System 4 [*] (described below), the Order Button will
be a minimum 4096 pixels in area; thereafter, there will be no minimum area for
the Order Button.
When a user clicks on the Order Button, the Order Page, as described above, is
rendered.
System 4 [*]: GTE plans to introduce an [*] for entering and modifying
------------
listings. These plans are subject to change or cancellation. At such time as GTE
releases the [*], GTE will include a method to order Production Services
directly from the listing input form. One of two methods will be employed:
1. Order Button Link: GTE will include a button (or link) labelled "Order
Virtual Tour" ("Listing Input Order Button"). From time to time, GTE may
choose to modify the text, graphics or animation on the button provided
that they do not promote or otherwise reference any third-party Virtual
Tour providers for so long as the initial Agreement remains exclusive under
section 2.3.. When a user clicks on the Order Button, the Order Page, as
described above, is rendered.
2. Order Entry Fields: GTE will include an area on the listing input form,
where users will be able to directly enter order criteria for Production
Services. GTE and Jutvision will, mutually agree upon the order criteria.
GTE will capture the order information and forward it to Jutvision in a
mutually agreed-upon format. The data will be transmitted using [*] and via
the [*], unless otherwise agreed in writing by GTE and Jutvision.
Virtual Tour Display
System 4 Workstation: For GTE Customers who use the System 4 Workstation:
--------------------
System 4 Workstation supports two primary databases: Listings, and Public
Records (optional at some sites). The listings database (active and off-market)
is accessed via a number of search functions, such as Listings Search, CMA, Open
House and Market Update. These functions may change from time to time. Within
these search functions, users may get specific information on one property by
launching the "Listing Search Details" screen. From this screen, users may
view still exterior photographs, text data and map information. The "Views"
button enables users to retrieve and display additional property information
such as interior photographs, neighbor photographs, listing history records, or
public records, via a pop-up menu. For properties with a Virtual Tour in the
GTE Database, a "Virtual Tour" option will appear in the pop-up list. When the
user selects this option, the Virtual Tour will be downloaded from the GTE
Database and displayed.
The Public Records Database is accessed via the Public Records Search function.
This function may change from time to time. Within this function, users may get
specific information on one property by launching the "Public Records Details"
screen. From this screen, users may view still exterior
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
-17-
photographs, text data and map information. The "Views" button enables users to
retrieve and display additional property information, via a pop-up menu. For
properties with a Virtual Tour in the GTE Database, a "Virtual Tour" option will
appear in the pop-up menu. When the user selects this option, the Virtual Tour
will be downloaded from the GTE Database and displayed.
System 4 Browser: For GTE Customers who use the System 4 Browser:
----------------
System 4 Browser supports two primary databases: Listings, and Public Records
(optional at some sites). Only the listings database is generally searchable.
It is accessed via search functions such as Listings Search and Market Update
(Hot Sheet). These functions may change from time to time. For properties with
a Virtual Tour in the GTE Database, a "Virtual Tour" link and/or tab will appear
in the Listing Search results. When the user clicks on the Virtual Tour link
and/or tab, the Virtual Tour will be downloaded from the GTE Database and
displayed.
Other Marketing Activities
From time to time, subject to provisions in the Agreement regarding use of
Jutvision Marks, GTE may, at the sole discretion of GTE and GTE Customers,
choose to promote Virtual Tours via special marketing campaigns such as:
1. Advertising on web-sites maintained by GTE Customers
2. Advertising in GTE Customers' communications with their Broker members,
including flyers, newspapers, general mailings, broadcast Email, or system
messages presented at log-in on the System 4 Workstation
3. Demonstrations at trade shows or technology fairs
4. Demonstrations during Broker training classes
-18-
AMENDMENT TO
------------
DISTRIBUTION AGREEMENT
----------------------
THIS AMENDMENT TO DISTRIBUTION AGREEMENT ("Amendment") is made and entered
into as of January 19, 1999 (the "Effective Date"), between Jutvision
Corporation, a Delaware corporation ("Jutvision"), and GTE Enterprise Solutions,
a division of GTE Enterprise Initiatives Incorporated, a Delaware corporation
("GTE").
BACKGROUND
----------
On January 12, 1999, the parties entered into a certain distribution
agreement ("Distribution Agreement") pertaining to the production, distribution,
promotion and marketing of virtual tour technologies. The parties now desire to
amend the Distribution Agreement under the terms more specifically set forth
below. Except as otherwise expressly provided in this Amendment, all defined
terms used herein shall have those meanings defined under the Distribution
Agreement.
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. Jutvision's Obligations.
-----------------------
1.1 Automatic Posting. Jutvision will automatically post all Jutvision
-----------------
Images to the GTE Database that do not result from GTE Originated Orders ("Non-
GTE Originated Orders"), whenever the Non-GTE Originated Orders are made by
Brokers, except in those cases where: (a) the Broker objects to the posting;
and/or (b) the Web site or other third-party channel originating the sale of
such Jutvision Images (collectively, the "Third-Party Originator") objects to
the postings. In the event a Third-Party Originator objects to the postings,
Jutvision will provide 20 days' prior written notice of the objection to GTE
before discontinuing the postings to the GTE Database.
1.2 Pricing. All postings to the GTE Database made under this Section 1
-------
(hereinafter referred to as a "[*] Posting") shall be made [*] to the Broker.
For purposes of illustration only, if a [*] Posting is made of a Jutvision
Image for a Basic Package order received through HomeSeekers, and the price
charged to the Broker to post the Jutvision Image to the HomeSeekers Web site
alone is ordinarily [*], the Jutvision Image shall be posted both to the
HomeSeekers Web site and the GTE Database for the [*], without any [*] for the
[*] Posting to the GTE Database.
1.3 Jutvision Images Posted to Third-Party Web Sites. Jutvision has
-----------------------------------------------------
entered into separate agreements (collectively, the "Third Party Agreements")
with Xxxxxxx.xxx, Xxxxxxxxxxx.xxx and Xxxxxxx.xxx under which Jutvision has the
right to post Jutvision Images to their respective Web sites. For so long as
Jutvision has this right under each respective Third Party Agreement, GTE shall
have the right, consistent with Jutvision's pricing policies, to allow Brokers,
placing GTE Originated Orders, to post Jutvision Images to these respective
third-party Web .sites.
2. Transaction Fees for Non-GTE Originated Orders.
-----------------------------------------------
Notwithstanding anything contained in the Distribution Agreement to the
contrary, no Transaction Fees or other remuneration will be due to GTE for [*]
Postings. Except as specifically provided in the preceding sentence, GTE shall
be entitled to all Transaction Fees and other consideration as provided under
the Distribution Agreement.
3. Affirmation of Distribution Agreement.
-------------------------------------
The parties acknowledge that the Distribution Agreement remains in full
force and effect under its terms, as modified by this Amendment. This Amendment
shall supersede and control over the Distribution Agreement to the extent of any
conflict therewith.
IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the
day and year first above written.
JUTVISION CORPORATION GTE ENTERPRISE SOLUTIONS,
a division of GTE Enterprise
Initiatives Incorporated
By: /s/ Xxxxxx Field By: /s/ Xxxxxx Xxxxxx
------------------------------ ----------------------------------
Xxxxxx Field Xxxxxx Xxxxxx
Vice President Vice President and General Manager
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
