Exhibit 10.7
INTERNET/BUSINESS SITE & HOST AGREEMENT
This Agreement ("AGREEMENT") is entered into and effective this _____ day
of January, 2000 by and between RE/MAX International, Inc. ("RE/MAX"), a
Colorado corporation with its principal place of business at 0000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, XX 00000 and Xxxx Interactive Services,
Inc. ("Xxxx"), a Colorado corporation (formerly known as Online System Services,
Inc.) with its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxxx, XX
00000.
WHEREAS, RE/MAX is interested in maintaining for itself and providing to
its affiliates a private site on the World Wide Web ("WWW") for their use in
communicating with RE/MAX and its approved suppliers and benefiting from an
array of other service capabilities and is desirous of assuring that such site
is always competitive, if not state of the art, and regularly enhanced to take
full advantage of emerging technologies, such site being a password protected
area on the WWW using HTML documents, Active Server Pages, Databases, Forums,
Chat Rooms and other features and technologies, all combined to present a
virtual RE/MAX community which is referred to as "RE/MAX Mainstreet".
WHEREAS, in accordance with the terms and specifications set forth in the
Internet/Business Site Development & Host Agreement entered into by the parties
effective November 12, 1997 (the "Original Agreement"), Xxxx designed and
developed and is currently hosting RE/MAX Mainstreet;
WHEREAS, since the development of RE/MAX Mainstreet, Xxxx has substantially
revised and improved its community software and is currently offering and
marketing a suite of services under the name CommunityWare<-1-228>/XML, which
software utilizes a new architecture/platform (herein
"CommunityWare<-1-228>/XML") which platform is well-suited for use with RE/MAX
Mainstreet; and
WHEREAS, Xxxx and RE/MAX desire to replace the Original Agreement in order
to better provide for the continued hosting, maintenance and enhancement of
RE/MAX Mainstreet by basing the R/M Customized Software (as hereinafter defined)
on CommunityWare<-1-228>/XML in order to substantially reduce the amount of
customized software utilized in RE/MAX Mainstreet.
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this AGREEMENT and their relationship, the following terms
shall have the meanings assigned to them.
a. "Host Services": That collection of services specified to be provided
by the entity acting as host of RE/MAX Mainstreet, including without
limitation, services such as security, help desk, billing, Email and
other specified ancillary services commonly or customarily performed
by a site host.
b. "Deliverables": The components of the online services and capabilities
specified for subscribers to RE/MAX Mainstreet, including without
limitation, Host Services, HTML documents, Active Server Pages,
Databases, Forums, Message Conferences, Chat, a Moderated Library and
other services and capabilities specified in this AGREEMENT.
c. "Embedded Software": Commercially available, third party software such
as Microsoft SQL Server, Microsoft Internet Information Server,
Microsoft Commerce Server and Internet Explorer 4.0 Browser, which
software is not owned by Xxxx, but is or may be used by Xxxx in its
solutions to RE/MAX's business web site objectives.
d. "Developed Software": Software developed and owned exclusively by
Xxxx, including without limitation, that software developed using XML
or ASP Technology for highly flexible, database-driven WWW web sites
and that software developed by Xxxx to enhance or supplement the
CommunityWare<-1-228>/XML Interact Software and/or compliment or
integrate the Embedded Software in the creation of the R/M Customized
Software.
e. "CommunityWare<-1-228>/XML Interact Software": An integrated,
creatively interfaced combination of Developed Software and Embedded
Software which serves as Xxxx'x basic suite of virtual community
products and upon which RE/MAX Mainstreet is and is to be based.
f. "R/M Customized Software": "CommunityWare<-1-228>/XML Interact
Software as customized, enhanced and modified by Developed Software
and Embedded Software to meet the objectives of RE/MAX for "RE/MAX
Mainstreet".
g. "RE/MAX Mainstreet": The RE/MAX highly flexible, functional,
scaleable, easy-to-use, database driven business, virtual community
web site which utilizes the R/M Customized Software and which
satisfies all criteria and specifications identified in the Original
Agreement.
h. "Residual Information": Information in non-tangible form, which may be
retained by persons within Xxxx'x organization who have participated
in the development and delivery of the R/M Customized Software and/or
the RE/MAX Mainstreet site.
2. RE/MAX MAINSTREET
Xxxx hereby agrees to maintain the R/M Customized Software and to migrate
the R/M Customized Software to the CommunityWare<-1-228>/XML platform that
are deemed to be in the best interests of both parties incrementally in the
year 2000, to the R/M Customized Software in order to improve its
functionality, scalability and ability to be enhanced and, utilizing such
software, to provide a fully operational, subscriber accessible, virtual
community business suite exclusively for RE/MAX and its affiliates, such
site being known as "RE/MAX Mainstreet" and which site provides all of the
Deliverables listed below, all of which have been previously developed,
tested, approved and released to production, such that each Deliverable
satisfies its corresponding specifications (See for specifications,
Exhibits "A" through "J" to the Original Agreement):
a. Message Conferences: Unlimited number of RE/MA defined collaborative
subscriber-to-subscriber messaging conferences consistent with the
specifications set forth in Exhibit A to the Original Agreement.
b. Chat Interactive Topic Discussions: Chat Lobbies and no fewer than
fifteen (15) conference rooms for each message conference to
facilitate multiple simultaneous interactive group discussions by
topic per chat room with capability for accommodating peak periods of
demand and otherwise consistent with the specifications of Exhibit B
to the Original Agreement.
c. Moderated Libraries: Libraries for each messag conference to enable
the moderated posting and retrieval of subscriber files (documents,
forms, graphics) consistent with the specifications set forth in
Exhibit C to the Original Agreement.
d. EMail Capabilities: Forwarding Email accounts handled on a proxy basis
per designated address and addressee information, i.e.,
xxxxxxxx@XXXXX.XXX, assigning a unique address per subscriber,
maintaining a searchable e-mail address directory online, and
otherwise consistent with the specifications set forth in Exhibit D to
the Original Agreement.
e. Flexibility for Future Expansions/Enhancements/Mobility: Design
features which assure maximum flexibility to meet future demands and
take advantage of future technologies, assure functional, scaleable,
and easy to use features which will enable RE/MAX to adapt to changing
uses or demands, consistent with the specifications set forth in
Exhibit A through F attached to the Original Agreement.
f. Linking and Bridging Capabilities: System flexibility fo creating data
entry, transfer, and retrieval and communication links to third party
service and content providers on the WWW consistent with the
specifications set forth in Exhibit E attached to the Original
Agreement.
g. Administrative Capabilities: A CommunityWare <-1-228>/XML Interact
administrator interface which provides for administering and reporting
on the subscriber accounts, structure of the conferences, chat rooms,
libraries, content (graphics and text), and other components of RE/MAX
Mainstreet and otherwise consistent with Exhibit F attached to the
Original Agreement. In addition, RE/MAX shall have file transfer
protocol access for upgrading graphics and layout content for the
RE/MAX Mainstreet site.
h. Telephone Help Desk: On call subscriber help desk and support
capabilities which will provide subscribers the ability to speak to a
technical support agent within (3) minutes of receiving the call.
Support will be available 18 hours per day, seven (7) days a week. In
addition, technical support will be accessible via Email with a
response within 24 hours and otherwise consistent with Exhibit G
attached to the Original Agreement.
3. SOFTWARE LICENSE
During the term of this AGREEMENT, on and subject to the terms and
conditions set forth below in this Paragraph 3, Xxxx hereby grants to
RE/MAX a limited license to use the R/M Customized Software.
4. SOFTWARE UPGRADES/ENHANCEMENTS
Xxxx hereby agrees that included within the software license set forth
above in Paragraph 3 hereof is a commitment for the term of the license to
notify RE/MAX of upgrades and enhancements as they become known to Xxxx and
to give RE/MAX the option, at RE/MAX's sole cost and expense, as described
in sections 9.a and 9.b, to have those upgrades or enhancements built into
the R/M Customized Software and/or otherwise included in RE/MAX Mainstreet.
In the event RE/MAX elects to include any such upgrade or enhancement, Xxxx
shall acquire any rights in software required and make such modifications
in the R/M Software as are necessary to include the selected enhancement or
upgrade. In all cases, Xxxx modifications to software shall be accomplished
with a minimum of disruption of the Host Services and RE/MAX Mainstreet's
online availability.
Additionally, in the event RE/MAX becomes aware of any software, feature,
enhancement, or of new technology that RE/MAX believes may be advantageous
for RE/MAX Mainstreet, RE/MAX will notify Xxxx and Xxxx will endeavor to
develop a proposal to RE/MAX for the inclusion of the same in RE/MAX
Mainstreet and such proposal shall include plans, costs and terms for
maintaining such software, feature enhancements or new technology. RE/MAX
shall have the right to seek directly other bids from third parties and to
present the same to Xxxx. If Xxxx is unwilling or unable to include the
feature of interest at a cost below or not more than ten percent (10%)
above the best competing proposal, RE/MAX shall have the right to have such
feature built into the R/M Customized Software and RE/MAX Mainstreet by a
third party selected by RE/MAX. Xxxx agrees to cooperate with such third
party or, in the alternative, to provide such access to its documentation
and source codes as may be necessary to enable such third party to include
such feature in the R/M Customized Software and RE/MAX Mainstreet. The
function of maintaining the R/M Customized Software as modified shall still
be the responsibility of Xxxx and the costs thereof shall still be deemed
to be included in the monthly fee except where additional costs are
approved as part of the proposal approval process, in which case RE/MAX
shall bear such additional cost.
5. LINKS WITH THIRD PARTY SERVICE & CONTENT PROVIDERS
Xxxx hereby agrees that RE/MAX shall have the right to develop or require
Xxxx to accommodate data insertion and retrieval links and communication
links on the WWW with third party providers of services and/or content. For
example, RE/MAX shall have the right at any time during the term of this
AGREEMENT, to develop itself, or require Xxxx to develop, a link between
RE/MAX Mainstreet and a third party web site through which link subscribers
to RE/MAX Mainstreet could view and use that web site without leaving the
RE/MAX Mainstreet web site. Should there be costs to Xxxx involved in
satisfying RE/MAX's request for any such link, it is understood that such
costs shall be paid or reimbursed by RE/MAX, but only to the extent they
are reasonable and represent the published rates for any engineering or
project management time required and the actual out of pocket costs
incurred by Xxxx without any xxxx-up or surcharge and that such costs are
consistent with estimates, quotes, or proposals submitted to RE/MAX by Xxxx
in advance. It is further understood that RE/MAX will be solely responsible
for any subscriber fee or access fee associated with access to any such
third party provider. Furthermore, RE/MAX shall have the right to divide
any additional income generated from any such link with the third party
provider, and do so with no duty to account or disclose to Xxxx the details
of its relationship with such third party provider, and without sharing
with Xxxx any portion of the additional income.
6. HARDWARE PREVIOUSLY ACQUIRED FOR RE/MAX MAINSTREET
RE/MAX hereby transfers and assigns to Xxxx all of RE/MAX's right, title
and interest to the computer equipment purchased pursuant to Paragraph 7 of
the Original Agreement.
7. HOST SERVICES FOR RE/MAX MAINSTREET
Xxxx hereby agrees to host RE/MAX Mainstreet and to provide all services
contemplated by the role of community web site host and all services of an
administrative or ancillary nature, including without limitation,
security, help desk, subscriber billing, and billing administration, online
credit card validation and/or charge authorizations, monthly, or, if
required, more frequent, ongoing, maintenance of the foregoing functions as
well as the basic functions of the RE/MAX Mainstreet web site, all
consistent with the specifications set forth in Exhibit H to the Original
Agreement. It is understood that on or around January 15, 2000, all aspects
of the current subscriber billing system will be removed from RE/MAX
Mainstreet.
8. TRANSFER OF HOST SERVICES
RE/MAX reserves the right to move RE/MAX Mainstreet to a new hosting entity
and to use the escrowed copy of the R/M Customized Software if necessary to
continue RE/MAX Mainstreet in any of the following circumstances:
a. Any failure or disruption in the business of Xxxx due to any
bankruptcy filing on behalf of Xxxx or any other event which threatens
the ability of Xxxx to continue to perform its obligations under this
AGREEMENT;
b. Any change in ownership or control of Xxxx to any entity or
organization which competes directly or indirectly with RE/MAX or its
affiliates;
c. The disruption of access by subscribers (other than planned downtime)
which causes the site to be available for less than 98% of the time
during any calendar quarter.
d. Reports to RE/MAX from the greater of (i) one percent (1%) of the
subscribers to RE/MAX Mainstreet or (ii) fifty (50) subscribers to the
effect they cannot get online or they have difficulty getting access
to RE/MAX Mainstreet, that chat rooms are not available, Email is not
functioning, security has been breached, access to the Help Desk at
RE/MAX Mainstreet is difficult, or any other similar type of problem
which continues to be reported to RE/MAX thirty (30) days after Xxxx
has been notified in writing of such problem.
The transfer of the Host Services function to a new entity shall
not relieve Xxxx of its other obligations under this AGREEMENT or
the software license set forth herein. RE/MAX understands that
because of the complexity of the hosting environment, moving
RE/MAX Mainstreet to a new hosting entity would require
significant re-engineering of many aspects of the site.
9. CONTRACT PRICE; PAYMENT TERMS
RE/MAX shall pay Xxxx monthly for the license and services provided
pursuant to this Agreement as follows:
a. Fixed Fee for Hosting, Maintenance of Site and Software License: A fee
of $20,000 per month shall be paid for Xxxx'x hosting of RE/MAX
Mainstreet, for Xxxx'x providing standard maintenance and support for
the services covered by this AGREEMENT and for the limited license
provided in accordance with Paragraph 3 of this AGREEMENT. Standard
maintenance and support includes fixing of any software problems
required to provide the services contemplated by this AGREEMENT but do
not include cosmetic changes or functional enhancements. Included with
the monthly fee is the availability to RE/MAX of forty (40) hours per
month of engineering and project management time which Xxxx will make
available for site enhancements, to make changes to the user
interface, to add new features or to integrate new core features of
CommunityWare<-1-228>/XML and to integrate with third-party software.
b. Variable Fee for Cost Support and Additional Site Enhancement
Services. A monthly fee equal to the greater of $3,000 or $1.20 per
minute of call support provided during each month shall be paid for
telephone support to be provided by Xxxx or by a third-party retained
by Xxxx to provide call support to the subscribers to RE/MAX
Mainstreet. In addition, Xxxx will provide engineering and project
management services in excess of the forty (40) hours included in the
fixed monthly fee as desired by RE/MAX, such services to be provided
at Xxxx'x published rates. Xxxx will provide the estimates of the time
required to complete desired enhancements if so requested by RE/MAX.
Xxxx may provide promotional support for RE/MAX Mainstreet and will
provide estimates of the costs required for any travel, trade show
materials, etc. that may be requested by RE/MAX. These costs will be
paid by RE/MAX for each occurrence on a pass through basis.
c. Reduction in Fixed Monthly Fee. In the event that RE/MAX shall move
RE/MAX Mainstreet to a new hosting entity in accordance with the
provisions of Paragraph 8 hereof, the fixed monthly fee provided for
in Paragraph 9(a) above shall be reduced to $17,500 per month.
d. Payment Terms. Xxxx shall xxxx RE/MAX monthly for the fixed and
variable monthly fees for the preceding month, which invoices shall be
paid within thirty (30) days of the receipt thereof.
e. These new payments are to take effect January 1 2000, with the first
invoice at January 2000 month-end.
10. OWNERSHIP OF XXXX INTELLECTUAL PROPERTY
Except for the rights under the license herein granted to RE/MAX and
otherwise specifically addressed in this AGREEMENT, it is hereby
acknowledged and agreed to by Xxxx and RE/MAX that all rights of any nature
whatsoever in and to the Developed Software, the CommunityWare<-1-228>/XML
Interact Software and the R/M Customized Software are retained by Xxxx.
11. OWNERSHIP OF XXXX PROPRIETARY TECHNOLOGY
Xxxx shall own all worldwide rights, title, and interest in and to the
Developed Software, including copyright right, and also in and to any software
tools, specifications, ideas, concepts, know-how, processes, and techniques used
by Xxxx in performing the services covered by this AGREEMENT (collectively
"Proprietary Technology"), including all Intellectual Property rights therein.
Nothing in this AGREEMENT or otherwise shall be deemed to prohibit or limit in
any way Xxxx'x right to use the Proprietary Technology (as defined herein) or
Residual Information, in whole or in part, to develop and market any software
that is the same in any or all respects as the Developed Software, or to develop
other software products or applications for Xxxx customers. Xxxx acknowledges
and agrees that during the term of this Agreement and any renewals thereof, Xxxx
shall not reuse any code custom developed for RE/MAX for a real estate service
business or any other business or enterprise that directly or indirectly
competes with RE/MAX or any of its corporate affiliates, RE/MAX Broker/Owners or
RE/MAX Affiliates, including but not limited to, any business that provides real
estate brokerage or property management services, sells or markets real estate
franchises or provides corporate relocation services ("RE/MAX Competitor" or to
any company that has an ownership interest of 10% or more in a RE/MAX Competitor
or to any other person or entity.") Xxxx agrees to not allow its key staff
dedicated to this effort to work on other real-estate projects during the term
of this contract.
12. RE/MAX ACKNOWLEDGMENT
RE/MAX hereby acknowledges that the Documentation and Source Codes for the
R/M Customized Software may contain trade secrets and confidential
information of Xxxx and that providing the R/M Customized Software, in
whole or in part, to any unauthorized third parties would be harmful to the
interests of Xxxx. RE/MAX agrees, therefore, to use reasonable efforts to
supervise, manage and control the R/M Customized Software, and to safeguard
all copies of the same licensed under this AGREEMENT using the same degree
of care that RE/MAX uses to safeguard its own proprietary materials. RE/MAX
agrees that, except to the extent expressly authorized in this AGREEMENT or
the license contained herein, it will not sub-license, re-sell, or
otherwise authorize any other party to possess or obtain the R/M Customized
Software, or to reverse engineer the R/M Customized Software.
13. RE/MAX OWNERSHIP OF DATA, CONTENT & SUBSCRIBER INFORMATION
RE/MAX shall own all worldwide rights, title, and interest in and to its
name and logos and all other components of graphical and textural content
used in, or in connection with, the promotion of RE/MAX Mainstreet and
RE/MAX shall own all rights, title, and interest in the name "RE/MAX
Mainstreet" and in the URL address selected for the site. All use of the
RE/XXX xxxxx in connection with the web site shall inure exclusively to the
benefit of RE/MAX. RE/MAX shall also own exclusively all data entered by
subscribers and/or by RE/MAX or third parties and Xxxx shall periodically
create back-up tapes of such data for its safekeeping. RE/MAX shall also
own exclusively all subscriber data, including without limitation,
subscriber name, address, telephone number, FAX number, credit card numbers
and expiration dates, and all other data collected or developed in
reference to subscribers individually or collectively as a subscriber base.
In no event shall Xxxx disclose, sell, market, use, distribute, or provide
to any third party or governmental agency any form of name, address, phone
number, user name, Email address or other listing, either physically or
electronically, or provide any form of online solicitation rights or
opportunities to any third party or governmental agency. Xxxx itself shall
not solicit or communicate directly with the subscriber base for RE/MAX
Mainstreet, except with the prior written consent of RE/MAX to the subject
matter and content of such communication, and such prior written authority
shall be required of RE/MAX for each proposed communication, the overall
objective being to minimize the volume of unwanted solicitations over
RE/MAX Mainstreet. Xxxx and RE/MAX shall maintain a guideline for
responding to requests by subscribers, for global Email messages to all or
large groupings of subscribers, and Xxxx shall follow such guideline. Xxxx
shall periodically provide RE/MAX with a back-up tape setting forth all
subscriber information on file for safekeeping by RE/MAX.
14. XXXX ACKNOWLEDGMENT
Xxxx hereby acknowledges that the name "Mainstreet" for real estate
industry-related web site is unique to RE/MAX and the database, subscriber
information, and content of RE/MAX Mainstreet may contain trade secrets,
confidential information, and/or highly sensitive data and that RE/MAX
and/or its subscriber base will be irreparably damaged if such information
were disclosed, sold, or otherwise distributed or made public. Xxxx
acknowledges that RE/MAX is the exclusive owner of such data, content, and
information and Xxxx agrees not to challenge the validity of any xxxx owned
by RE/MAX, or RE/MAX claim to ownership to the site name, "RE/MAX
Mainstreet," or of the URL address for the site. Xxxx agrees, therefore, to
use its best efforts to protect and secure such data, content, and
subscriber information from third parties and to incorporate into the R/M
Customized Software such security measures as it deems reasonable and
appropriate to protect the RE/MAX Mainstreet web site from unauthorized
use, access, or invasion by third parties.
15. DESIGN CHANGES
The parties hereto agree that RE/MAX shall have the exclusive right,
without consultation with or notice to Xxxx, at any time and from
time-to-time to modify at RE/MAX's sole cost and expense the structural,
graphical, and textural content and appearance of RE/MAX Mainstreet in
limited areas as defined by the technology and/or to change the name of the
web site to something other than RE/MAX Mainstreet. Xxxx agrees to provide
RE/MAX with access codes and information sufficient to enable RE/MAX to
effectuate such changes via online modifications, invisible to Xxxx or
subscribers.
16. LIMITATIONS ON LIABILITY
Xxxx makes no direct or implied guarantee regarding the response or
business which will be generated from the RE/MAX Mainstreet site nor will
RE/MAX attempt to hold Xxxx responsible for any economic or legal
liabilities which may result from the presence or distribution of the
material contained in the RE/MAX Mainstreet web site, provided, however,
that Xxxx will work with RE/MAX in maintaining guidelines for subscriber
uses and message content, and Xxxx, as Host Services provider, shall
exercise its best efforts to assure compliance by subscribers with such
guidelines and terminate any subscriber who refuses or fails repeatedly to
honor such guidelines. To this end, the parties hereto agree that the
subscriber agreement shall include both the obligation to honor guidelines
established, and from time-to-time amended, for RE/MAX Mainstreet. Such
subscriber agreement will also expressly recite the right to terminate
RE/MAX Mainstreet access privileges for failure to honor such guidelines.
Neither Xxxx nor anyone else who has been or will be involved in the
creation, production, or delivery of the RE/MAX Mainstreet web site shall
be liable for any direct, indirect, consequential or incidental damages
(including damages for Xxxx of business profits, business interruption,
loss of business information and the like) arising out of the use or
inability to use RE/MAX Mainstreet even if Xxxx has been advised of the
possibility of such damages.
17. RE/MAX INDEMNIFICATION OF XXXX
RE/MAX hereby acknowledges that Xxxx employees, agents, and officers have
assumed no liability or responsibility for the content generated by RE/MAX,
subscribers to RE/MAX Mainstreet or others and supplied to Xxxx for
mounting on Xxxx'x servers for Password Protected access via the Internet
and World Wide Web (WWW). RE/MAX agrees to indemnify, save, and hold
harmless Xxxx and its directors, officers, employees, and agents from and
against any and all claims arising out of RE/MAX's publication of content
on RE/MAX Mainstreet and to pay reasonable attorney fees incurred in the
defense of any such claim, provided, however, that RE/MAX's obligation
hereunder for liability and defense costs together shall be limited
strictly by the amount for which such claim could have been settled. This
indemnification shall include any and all claims of copyright infringement,
slander, or libel, but excludes any claim to the effect that the Developed
Software, the R/M Software or RE/MAX Mainstreet as such, infringe any
copyrights or other rights of third parties. This AGREEMENT does not create
or imply and shall not be construed to create or imply an agency
relationship between Xxxx and RE/MAX. Xxxx agrees under these terms to
provide the specific development and Host Services described in this
AGREEMENT.
18. XXXX INDEMNIFICATION OF RE/XXX
Xxxx hereby acknowledges that neither RE/MAX nor any of its directors,
officers, employees, or agents have assumed any liability whatsoever for
the conduct, actions, or performance of Xxxx under this AGREEMENT, or for
Xxxx'x performance of Host Services hereunder. Xxxx hereby agrees to
indemnify, save, and hold harmless RE/MAX and its directors, officers,
employees, and agents from and against any and all claims whatsoever,
including without limitation, claims arising out of the software or
software development efforts or undertakings of Xxxx, and claims to the
effect that any software used in the R/M Customized Software infringes the
copyrights of any third party or that Xxxx wrongfully obtained, is not
entitled to use, or is not the rightful owner of the Developed Software,
CommunityWare(TM)/XML Interact Software, R/M Customized
Software, Residual Information, Intellectual Property, Proprietary
Technology and/or trade secrets, and confidential information as those
terms are defined herein, and claims relating in any way to Xxxx
relationships with any employee or independent contractor working on the
development of the RE/MAX Mainstreet web site or involved at any level in
providing Host Services under this AGREEMENT. Xxxx further agrees to pay
reasonable attorney fees incurred by RE/MAX in the defense of any such
claim, provided, however, that Xxxx'x obligation hereunder for liability
and defense costs together shall be limited strictly by the amount for
which such claim could have been settled.
19. XXXX WARRANTIES
Xxxx hereby warrants that its Developed Software, its
CommunityWare<-1-228>/XML Interact Software and its other claimed
proprietary tools and residual information were originally developed by
Xxxx or rightfully and lawfully acquired, and that Xxxx has the rights
therein to enter into this AGREEMENT, to enter into and license the R/M
Customized Software in accordance with the license contained herein, to
provide the Deliverables contemplated, and perform the Host Services agreed
to, and that in doing so, Xxxx will not be violating the rights of privacy,
the copyrights or any other rights of any third party and that its
performance of its obligations hereunder will not place it in breach of any
other contract or commitment. Xxxx does not warrant the license or the
reliability of work conducted by any third party.
20. SECURITY MEASURES & PASSWORD ACCESS
Access to RE/MAX Mainstreet shall be restricted to individuals affiliated
in good standing with RE/MAX International, Inc. and who have executed and
returned a current form subscriber agreement. Each such individual shall
have a unique user name and a confidential password. Such names and
passwords will be assigned in accordance with the procedure outlined in
Exhibit J attached to the Original Agreement. Access to RE/MAX Mainstreet
will require the use of industry standard encrypted and secure
communication protocols for those portions of the subscriber's access, file
transfers, messaging, or other activities which contain content which is
deemed to be sensitive by RE/MAX and, more specifically, those involving
the transfers of billing, credit card or other sensitive data and
information exchange. On site system security will be provided by hardware,
protocol, and Windows-NT based security consistent with specifications set
forth on Exhibit J attached to the Original Agreement.
21. DATA & CONTENT BACK-UP
Xxxx shall provide to RE/MAX a monthly copy of the database, which may
include such information as forums messages, subscriber identity data,
subscriber payment history information with billing address, subscriber
Email address and password information residing on the servers allocated to
providing access to RE/MAX Mainstreet. Such back-up copy shall be
maintained by RE/MAX for the benefit of itself and Xxxx should the software
and web site become corrupted or inoperable for any reason.
22. MINIMUM PERFORMANCE STANDARDS
In the performance of its obligations under this AGREEMENT, Xxxx shall
demonstrate to RE/MAX that access to RE/MAX Mainstreet will satisfy the
minimum performance standards of simultaneous use by 10, 25, 50, 75, and
100 concurrent users performing a mixture of chat, library downloads, and
messaging without any significant (i.e., less than 10%) degradation of
response time.
23. TERM AND TERMINATION
The initial term of this AGREEMENT is two (2) years from the effective date
of this AGREEMENT. RE/XXX xxx terminate this AGREEMENT at any time in the
event Xxxx fails to meet or satisfy the Minimum Performance Standards
established by Paragraph 22 hereof. Either party may terminate this
contract in the event that the other party breaches this AGREEMENT provided
that the breach has not been cured, notwithstanding that the non-breaching
party has given the breaching party written notice of the alleged breach
and thirty (30) days to cure. This AGREEMENT will automatically renew for
successive two (2) year terms, commencing at the conclusion of the initial
two (2) year term, unless written notice of intent not to renew is provided
by either party one hundred eighty (180) days prior to the expiration of
the then current term.
24. NOT ASSIGNABLE
This AGREEMENT is uniquely between Xxxx and RE/MAX and is based in large
measure on the trust, confidence, mutual respect, and unique attributes of
the parties. This AGREEMENT shall not be assignable by either party without
the express written consent of the other, and such written consent may be
withheld for any reason whatsoever. Notwithstanding the foregoing, RE/MAX
shall have the right to assign this AGREEMENT to any new corporation formed
or any existing corporation to oversee, own and/or manage RE/MAX Mainstreet
so long as the same group of individuals who own a majority of shares in
RE/MAX also control such new or existing corporation.
25. CHOICE OF LAW
This AGREEMENT shall be construed and interpreted in accordance with the
laws of the state of Colorado and of the United States of America.
26. INCORPORATION BY REFERENCE
Exhibits A through J attached to the Original Agreement are hereby
incorporated herein by reference.
27. ARBITRATION
In the event of any dispute between the parties hereto regarding duties or
responsibilities under this AGREEMENT, or any other claim by one party
against the other arising out of their relationship under this AGREEMENT,
or their performance of any duty or obligation relating to this AGREEMENT,
or its subject matter, or the RE/MAX Mainstreet web site, such dispute
shall be submitted to binding arbitration in accordance with the Federal
Arbitration Act and shall be arbitrated by the American Arbitration
Association in accordance with its rules and procedures for commercial
arbitration.
28. NO WAIVER
Any failure by either party hereto to enforce at any time any term or
condition of this AGREEMENT shall not be considered a waiver of that
party's right thereafter to enforce that same term or condition or any
other term or condition of this AGREEMENT.
29. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire agreement between RE/MAX and Xxxx
regarding the subject matter hereof, and this AGREEMENT may not be amended,
altered, or changed except by a written agreement signed by both parties
hereto. Except as expressly incorporated herein by reference, the Original
Agreement is hereby terminated and of no further force and effect.
30. HEADINGS
The headings used in this AGREEMENT are used solely for convenience and are
not an aid in the interpretation of this AGREEMENT or a limitation to the
application of any term or condition hereof.
IN WITNESS WHEREOF, RE/MAX International, Inc. and Xxxx Interactive
Services, Inc. have executed this AGREEMENT.
Xxxx Interactive Services, Inc. RE/MAX International, Inc.
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By By
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Title Title
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