EXHIBIT 10.33
DISTRIBUTION & CO-MARKETING AGREEMENT
-------------------------------------
THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered into as
of June 9, 1999 (the "Effective Date"), between xxxxxx.xxx, Inc., a Delaware
corporation with an office located at 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
("xxxxxx.xxx"), and Pacific Union Real Estate Group, Inc., a California
corporation with its main office located at 0000 Xxxxxxxx Xx., Xxx Xxxxxxxxx,
XX. ("Company").
Xxxxxx.xxx and Company, 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, agree as follows (definitions of
certain capitalized terms and additional terms and conditions appear on the
reverse side of this Agreement):
1. Xxxxxx.xxx Service. Xxxxxx.xxx will be responsible for receiving orders and
------------------
invoicing and collecting revenues for sales of Production Services. Xxxxxx.xxx
will capture images at designated sites through its Service Provider Network and
process 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 of this Agreement, a system whereby Company will be
capable of linking the Company Site to Xxxxxx.xxx Images.
2. Preferred Provider. Xxxxxx.xxx will be the preferred provider of 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, display ads for or use the services of any third party acting in such
capacity. In addition, Company will not permit any Virtual Tour Images of any
third party to be posted to, linked to or otherwise made accessible through the
Company Site. Notwithstanding the preceding sentence, Company will not be
restricted from accommodating alternative Virtual Tour Images already posted or
linked to the Company Sites or from allowing Company customers that use a
provider of Virtual Tours Images other than xxxxxx.xxx to link to the Company
Site.
3. Community Tours. Xxxxxx.xxx agrees to capture and process [*]. Company will
---------------
provide xxxxxx.xxx a list of the images, the distance between the locations, and
precise directions regarding the location from where the image should be taken.
In addition, Company will send a representative with the xxxxxx.xxx service
provider to oversee the shooting at each specific location. Company will pay
[*] in a community and [*] of that initial location.
4. Marketing and Promotion.
-----------------------
Xxxxxx.xxx agrees to:
. Provide commercially reasonable technical support during normal business
hours to help Company link the Company Site to the Xxxxxx.xxx Images produced
on behalf of Sales Agents;
. Promote Company as a partner on xxxxxx.xxx's Web site;
. Include Company in marketing material and press releases, as xxxxxx.xxx deems
appropriate;
. Provide co-branded marketing materials to Sales Agents who purchase
Xxxxxx.xxx Tours that explains Xxxxxx.xxx Tours to customers, including CD
ROM demo disks;
. Offer a special bulk purchase price and a special promotional offer at office
presentations made by xxxxxx.xxx representatives to Sales Agents during the
first sixty (60) days of this agreement; and
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
. Hold periodic training seminars for Sales Agents focusing on the benefits of
using the Internet in real estate and methods of integrating Xxxxxx.xxx Tours
into the Sales Agents' marketing strategy.
Company agrees to:
. Ensure that an HTML button and the corresponding URL provided by xxxxxx.xxx
will be located on an individual Company listing page within 24 hours from
receiving the URL link from xxxxxx.xxx;
. Include an electronic order form on the Company Site that allows Sales Agents
to submit orders to xxxxxx.xxx via the Interact;
. Maintain a gallery of Xxxxxx.xxx Images on the Company Site;
. When appropriate, 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; 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; and
distribute marketing materials created by xxxxxx.xxx at seminars,
presentations, training sessions and follow-up meetings sponsored by Company;
and
. Ensure xxxxxx.xxx sales representatives have access to Sales Agents within
the first 60 days of this agreement.
5. Term. This Agreement will commence on the Effective Date and continue for
----
twelve (12) months, and will be automatically renewed for successive one (1)
month periods 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, each party will cease all use of marks and other intellectual
property of the other party.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
XXXXXX.XXX, INC. PACIFIC UNION REAL ESTATE GROUP, LTD.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx/President
------------------------------ -------------------------------
Name/Title: Xxxxxx X. Xxxxxx Name/Title: Xxxx X. Xxxxx/President
---------------------- -----------------------
SVP Bus. & Development
-2-
ADDITIONAL TERMS AND CONDITIONS
1. Definitions
-----------
"Company Site" means the collection of HTML documents residing on 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.
"Confidential Information" means any trade secrets, confidential 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 of this Agreement.
"Xxxxxx.xxx Image" means an electronic image of a Property produced by or on
behalf of xxxxxx.xxx.
"Xxxxxx.xxx Technology" means software and hardware, including the Xxxxxx.xxx
for Java Software, used to capture, process and view Xxxxxx.xxx Images.
"Xxxxxx.xxx Tour" means the combined Production Services supplied by xxxxxx.xxx
with respect to a single Property.
"Production Services" means the services provided by or on behalf of xxxxxx.xxx
in producing Xxxxxx.xxx Images.
"Sales Agent" means any sales agent, sales representative or broker of the
Company.
"Service Provider Network" means the network of individuals throughout the
Company's territory of operation with whom xxxxxx.xxx has entered into
agreements to capture images at designated sites on xxxxxx.xxx's behalf.
"Virtual Tour Images" means 360 degrees, three-dimensional, virtual reality,
virtual tour, virtual walkthrough or other similar images, or production
services for such images.
2. Confidentiality
---------------
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. 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, or as required by statute, regulation or other law.
3. Xxxxxx.xxx Technology
---------------------
(a) All Xxxxxx.xxx Technology, including without limitation the Xxxxxx.xxx for
Java 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. Trademarks
----------
(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 of
this Agreement (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 of this Agreement, with
xxxxxx.xxx's prior written approval, which xxxxxx.xxx will not unreasonably
withhold or delay, solely in connection with Company's promotion and marketing
of the Production Services and financing. 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 of this Agreement, solely in connection with xxxxxx.xxx's promotion and
marketing of the Production Services and financing. 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.
5. Limitation on Grant of Rights
-----------------------------
Except as expressly provided herein, neither party receives any other right or
license to the technology or intellectual property of the other party.
6. Termination
-----------
(a) Upon termination or expiration, (i) Company and xxxxxx.xxx will cease all
use of marks of the other party and (ii) Company will cease all use of the
Xxxxxx.xxx Images and Xxxxxx.xxx for Java Software and will purge all Xxxxxx.xxx
for Java Software and Xxxxxx.xxx Images from its servers.
(b) This Agreement will terminate in the event a party breaches any material
term, condition or representation of this Agreement
-3-
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.
(c) The provisions of Sections 2, 3(a), 4(a), 5, 6(a), 6(c), 7 and 8 of these
Additional Terms and Conditions 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. No Warranties; Limitation of Liability
--------------------------------------
XXXXXX.XXX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE ANY GOODS OR SERVICES PROVIDED BY THIS AGREEMENT. EXCEPT WITH RESPECT TO A
BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION 2 ON THE FIRST
PAGE OF THIS AGREEMENT OR SECTION 2 OF THESE ADDITIONAL TERMS AND CONDITIONS, 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.
8. Miscellaneous
-------------
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 within this Agreement. Delivery will be deemed effective three (3)
days after deposit with postal authorities. 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 of 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. Company will not issue any press
release regarding the subject matter of this Agreement without the prior written
approval of xxxxxx.xxx. 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.
-4-
