EXHIBIT 10.31
EXECUTION DRAFT
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of May 28, 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 Sudler/Xxxxxxx Xxxxxx, an Illinois corporation with
an office located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("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 appear
in Additional Terms and Conditions):
1. Volume Purchase. Company will purchase [*] xxxxxx.xxx Basic Package
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Tours. In return, xxxxxx.xxx will provide [*] complimentary
xxxxxx.xxx Basic Package Tours. The tours shall be used for current
inventory. Company will use purchased plus complimentary xxxxxx.xxx Tours
by [*]. Xxxxxx.xxx will provide an invoice to Company by May 28,
1999. Company will remit payment to xxxxxx.xxx of [*] on June 1,
1999.
2. Xxxxxx.xxx Service. Xxxxxx.xxx will be responsible for receiving orders and
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invoicing and collecting revenues for sales of Production Services.
Bamboo.comwill capture images at designated sites through its Service
Provider Network and process captured images to create Xxxxxx.xxx Images.
Company will permit linking of the Company Sites to Xxxxxx.xxx Images, and
the parties will use best efforts to work together to implement this system
within fourteen (14) days of the Effective Date, and maintain the system
throughout the term of this Agreement. Additionally, Company will use
commercially reasonable efforts to link each such Xxxxxx.xxx Image to the
appropriate listings on the Company Sites by the end of the business day
following the day xxxxxx.xxx makes such Xxxxxx.xxx Image available on the
xxxxxx.xxx server.
3. Exclusivity. Xxxxxx.xxx will be the exclusive provider of Virtual Tours
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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.
4. Marketing and Promotion.
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Xxxxxx.xxx agrees to:
. Include Company, including use of its logo, as a partner on
xxxxxx.xxx's website and in marketing material, as xxxxxx.xxx deems
appropriate;
. Provide fifty (50) listing presentation kits;
. Educate each Company office on the benefits of using the Internet in
real estate and methods of integrating Xxxxxx.xxx Tours into the Sales
Agents' marketing strategy;
. Provide custom order forms for Sales Agents;
. Discuss other joint marketing opportunities, including collaboration
on email and direct marketing material from time to time.
Company agrees to:
. Hold an in-office presentation by a xxxxxx.xxx representative with
each Company office within the first thirty (30) days of the Effective
Date. Company will send out a communication from a Company executive,
including a statement encouraging them to use xxxxxx.xxx's Production
Services, to each Sales Agent within the first fourteen (14) days
following the Effective Date. ;
. Include an electronic order form and a description of the xxxxxx.xxx
Production Services on the Company Sites that allows Sales Agents to
submit orders to xxxxxx.xxx. Maintain a gallery of Xxxxxx.xxx Images
on the Company Site;
. Include description, demonstration of the xxxxxx.xxx Production
Services, and marketing materials in Company sponsored training and
seminars for Sales Agents;
. 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, newspapers and
general mailings distributed to clients and potential clients.
5. Term. This Agreement will commence on the Effective Date and continue for
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twelve (12) months, and will be automatically renewed for successive twelve
(12) month periods 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. 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. SUDLER/XXXXXXX XXXXXX
By: /s/ Xxxxxx X. Xxxxxx By: [SIGNATURE ILLEGIBLE]
_________________________________ ________________________________
Name/Title: Xxxxxx X. Xxxxxx Name/Title: Executive Vice President
_________________________ ________________________
SVP, Business Development
_________________________
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPERATELY
WITH THE COMMISSSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
ADDITIONAL TERMS AND CONDITIONS
1. Definitions
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"Basic Package" means four scenes captured at a designated property and placed
on one website.
"Xxxxxx.xxx Image" means an electronic Image of a property produced by or on
behalf of xxxxxx.xxx.
"Xxxxxx.xxx Technology" means all Xxxxxx.xxx Images and software and hardware,
and 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.
"Company Sites" means the collection of HTML documents residing on servers
operated by or for Company or its affiliate, including without limitation
Company's intranet, extranet and public website.
"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 (the "Confidential Information").
"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.
"Term" means the Initial Term of this Agreement and the Renewal Terms, if any,
as set in forth in Section 4 on the first page of this Agreement.
"Virtual Tour Images" means 360, three-dimensional, virtual reality, virtual
tour, virtual walkthrough or other similar images, or production services for
such images.
2. Confidentiality
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Each party agrees to treat the other party's Confidential Information with the
same degree of care as it maintains its own information of a similar nature.
Each party will use at least the same procedures and degree of care which it
uses to protect the confidentiality of its own Confidential Information of like
importance, and in no event less than reasonable care. 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
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3.1 Xxxxxx.xxx Technology 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.
3.2 Xxxxxx.xxx hereby grants to Company a nonexclusive, worldwide,
royalty-free, nontransferable license to include links to the
Xxxxxx.xxx Images on the Company Sites and Hosted Sites solely for the
purposes contemplated in this Agreement. Company will not distribute,
modify, edit, or prepare derivative works from the Xxxxxx.xxx Images
without the prior written permission of xxxxxx.xxx. The foregoing
license does not include any right to grant or authorize sublicenses.
4. Trademarks
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4.1 Xxxxxx.xxx owns and at all times will continue to own the trademarks,
service marks and/or trade names XXXXXX.XXX and the xxxxxx.xxx logo,
as well as any name or xxxx xxxxxx.xxx may subsequently adopt as a
trade name or to designate the Production Services (collectively, the
"Xxxxxx.xxx Marks"), and Company will not take any actions
inconsistent with xxxxxx.xxx's ownership rights. Company owns and at
all times will continue to own the trademarks, service marks and/or
trade names customarily used by Company during the Term (the "Company
Marks"), and xxxxxx.xxx will not take any actions inconsistent with
Company' ownership rights. Each party's use of the other party's marks
will not create in the using party any right, title or interest
therein or thereto, and all such use will inure to the exclusive
benefit of other party.
4.2 Subject to the restrictions set forth herein, xxxxxx.xxx hereby grants
Company a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Xxxxxx.xxx Marks, during the Term,
with xxxxxx.xxx's prior written approval, which xxxxxx.xxx will not
unreasonably withhold or delay, solely in connection with promotion
and marketing of the Production Services and/or Company financing.
Subject to the restrictions set forth herein, Company hereby grants
financing. Subject to the restrictions set forth herein, xxxxxx.xxx a
nonexclusive, worldwide, royalty-free, fully paid up, nontransferable
right to use the Company Marks, during the Term, solely in connection
with promotion and marketing of the Production Services and/or
xxxxxx.xxx 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
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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
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6.1 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.
6.2 This Agreement will terminate in the event a party breaches any
material term, condition or representation of this Agreement or
materially fails to perform any of its material obligations or
undertakings hereunder, and fails to remedy such default within sixty
(60) days after being notified by the non-breaching party of such
breach or failure; provided, however, that the non-breaching party
will not unreasonably withhold or delay its consent to extend the cure
period if the breaching party has commenced cure during the sixty-day
notice period and pursues cure of the breach in good faith.
6.3 The provisions of Sections 2, 3.1, 4.1, 5, 6.1, 6.3, 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
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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 3 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
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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 or willful misconduct of the non-performing party. The
relationship of xxxxxx.xxx and Company established by this Agreement is that of
independent contractors. This Agreement will be governed by and construed under
the laws of the State of California without reference to conflict of laws
principles. This Agreement, together with all exhibit and attachments hereto,
sets forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing signed by the party to
be charged, and the waiver of any breach or default will not constitute a waiver
of any other right hereunder or any subsequent breach or default. Neither party
may assign this Agreement, or assign or delegate any right or obligation
hereunder, without the prior written consent of the other party; provided,
however, that either party may assign this Agreement or assign or delegate its
rights and obligations under this Agreement to a successor to all or
substantially all of its business or assets relating to this Agreement whether
by sale, merger, operation of law or otherwise. 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.
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