EXHIBIT 10.30
June 9, 1999
SALES AND CO-MARKETING AGREEMENT
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THIS SALES AND 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 at 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
("xxxxxx.xxx"), and Metropolitan Regional Information Systems, Inc., a Delaware
corporation with an office at 0000 Xxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 ("Company").
Xxxxxx.xxx uses the Xxxxxx.xxx Technology and provides the Production
Services. Company operates the MRIS System and the Company Site. Xxxxxx.xxx
desires to provide the Xxxxxx.xxx Technology and Production Services to Company
and the MRIS Subscribers. 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 "Administrative Fees" means (a) any penalty or cancellation fees
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xxxxxx.xxx charges for missed or rescheduled image capture appointments; (b) any
processing fees xxxxxx.xxx charges for modification or substitution of
Xxxxxx.xxx Images; (c) any renewal or extension fees xxxxxx.xxx charges for
extending expiring postings of Xxxxxx.xxx Images; and (d) other similar charges
and fees.
1.2 "Xxxxxx.xxx Image" means an electronic Virtual Tour Image of a
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Property produced by or on behalf of xxxxxx.xxx.
1.3 "Xxxxxx.xxx Know-How" means all trade secrets, know-how and show-how
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xxxxxx.xxx provides to Company as an agent pursuant to Section 2.1, including,
without limitation, all proprietary oral and written information xxxxxx.xxx
provides to Company with respect to methods and processes for [*]
1.4 "Xxxxxx.xxx Server" means the dedicated server owned and operated by
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xxxxxx.xxx to host Xxxxxx.xxx Images on behalf of Company, MRIS Subscribers and
their affiliates.
1.5 "Xxxxxx.xxx Technology" means software and hardware, including the
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Xxxxxx.xxx for Java Software and Equipment, used to capture, process and view
Xxxxxx.xxx Images.
1.6 "Basic Package" means four scenes captured in a designated Property
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and converted into a corresponding number of Xxxxxx.xxx Images, The Basic
Package service includes posting or linking, to the extent xxxxxx.xxx has the
right to do so, [*]
1.7 "Brokerage Site." means the collection of HTML documents residing on
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servers operated by or for a brokerage, of which the MRIS Subscriber is a
member, or its affiliate and accessible on or after the Effective Date by MRIS
Subscribers or the public via the Internet.
1.8 "Broker Franchise Site" means the collection of HTML documents
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residing on servers operated by or for a broker franchise, of which the MRIS
Subscriber is a member, or its affiliate and accessible on or after the
Effective Date by MRIS Subscribers or the public via the internet.
1.9 "Company Originated Order" means any order for Production Services
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from an MRIS Subscriber originated through [*] Company's call center, the
Company Site or the MRIS System.
1.10 "Company Site" means the collection of HTML documents residing on
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servers operated by or for Company or its affiliates and accessible on or after
the Effective Date by MRIS Subscribers or the public via the Internet, including
those currently accessible at the following URLs: xxxx://xxx.xxxx.xxx,
xxxx://xxx.xxxxxxxxxxxxx.xxx and xxxx://xxxx.xxx.
1.11 "Confidential Information" means any trade secrets, confidential
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data or other confidential information oral or written relating to or used in
the business of the other party (the "Disclosing Party"), that a party may
obtain from the Disclosing Party during the Term (the "Confidential
Information"). The Xxxxxx.xxx Technology and the Xxxxxx.xxx Know-How, without
limitation, will constitute Confidential Information. In addition, the terms of
this Agreement will constitute Confidential Information, except to the extent
that such information is disclosed 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.
1.12 "MRIS Subscriber" means a real estate broker, real estate agent or
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any other similar entity or individual that is a subscriber of the Company and
has access to the MRIS System.
1.13 "MRIS Subscriber Site" means the collection Of HTML documents
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residing on servers operated by Or for an MRIS Subscriber or its affiliate and
accessible on or after the Effective Date by MRIS Subscribers or the public via
the Internet
1.14 "MRIS System" means the collection of data residing on servers
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operated by or for Company or its affiliates and accessible by MRIS Subscribers
and, to the extent Company makes such collection generally available, by the
public via the Intemet or proprietary network. The MRIS System includes the
password protected user interface, including any future versions Of such
interface, that MRIS Subscribers access via the Intemet or otherwise to obtain
listings and other information in the MRIS System.
1.15 [*] means four scenes captured in a designated Property and converted
into a corresponding number of Xxxxxx.xxx Images. The [*] service includes
posting or linking, to the extent xxxxxx.xxx has the right to do so, [*]. [*]
1.16 "Production Services" means the services provided by or on behalf of
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xxxxxx.xxx hereunder in producing the Xxxxxx.xxx Images.
1.17 "Property" means any piece of residential real estate within the
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Territory, including without limitation new homes, offered for sale, and resale
homes.
1.18 "Service Provider Network" means the network of individuals
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throughout the Territory with whom xxxxxx.xxx has entered into agreements to
capture Virtual Tour Images at designated Properties.
1.19 [*] means any order from an MRIS Subscriber for Production Services
originated through [*].
1.20 "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
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.21 "Territory" means Company's area of coverage in [*],
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1.22 "Upgrade Package" means an addition to a Basic Package [*]
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consisting of one additional scene captured at the same designated Property of
the Basic Package [*], converted into one additional Xxxxxx.xxx Image for the
scene and posted or linked in a manner consistent with the Basic Package [*].
1.23 "Virtual Tour Images" means 360 degrees, three-dimensional, virtual
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reality, virtual tour, virtual walkthrough or other similar images, or
technology or production services for such images.
2. PROVISION OF PRODUCTION SERVICES; PREFERRED VENDOR STATUS
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2.1 Sales and Billing. Xxxxxx.xxx hereby appoints Company, and Company
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agrees, to act as Xxxxxx.xxx's non-exclusive agent within the Territory for
[*]. Accordingly, except as provided in Section 2.3, Company will be
responsible, at Company's expense, for all such [*] during the Term.
(a) [*]. Company will maintain and operate at Company's expense [*]
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to [*] for Production Services from MRIS Subscribers. At all times during the
Term, Company's [*] will meet or exceed the performance, product presentation
and customer service criteria set forth in Exhibit A attached hereto. As
reasonably determined by xxxxxx.xxx, xxxxxx.xxx will provide initial training
and information to [*], as well as such additional training and information as
[*] may require from time to time during the Term. In addition, xxxxxx.xxx will
make members of xxxxxx.xxx's [*] available by telephone, during the regular
business hours Of 9 am to 6 pm EST Monday through Saturday and 9 am to 5 pm EST
Sunday, or as the parties may subsequently agree, to provide [*] in the form of
information and guidance solely to [*] regarding the Production Services.
Company and [*] will only offer and sell Production Services to MRIS
Subscribers, and in packages [*] in effect from time to time during the Term;
provided, however, that, in the event that xxxxxx.xxx permits third-party sales
agents (i.e., xxxxxx.xxx strategic partners) to [*] at which Production Services
[*], then, taking into account the quality, quantity, time period and geographic
region of such offer, xxxxxx.xxx will permit Company to effect [*] to MRIS
Subscribers. As of the Effective Date, Company and the [*] may only offer the
following service packages [*] Basic Package [*], Upgrade Package [*] and [*].
2.2 Image Capturing. Processing and Linking/Posting. Xxxxxx.xxx will be
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responsible for capturing images at designated Properties through its Service
Provider Network and processing captured images to create Xxxxxx.xxx Images.
Xxxxxx.xxx will then, as provided in the order for Production Services and
solely to the extent xxxxxx.xxx has the right to do so, (i) collaborate with
Company to establish links from the MRIS System, the Company Site, the relevant
Brokerage Site, the Broker Franchise Site and the MRIS Subscriber Site to the
Xxxxxx.xxx Images residing on servers at xxxxxx.xxx's facilities and (ii) [*]
Notwithstanding the foregoing, in the event that xxxxxx.xxx fails to meet or
exceed the standards set forth in Exhibit B attached hereto as calculated for
any two calendar months within a three-month period during the Term, thereafter,
in lieu of clause (i) above, xxxxxx.xxx will post Xxxxxx.xxx Images to the
Xxxxxx.xxx Server, and Company will permit posting of Xxxxxx.xxx Images to the
Xxxxxx.xxx Server and will be responsible for creating links from the MRIS
System, Company Site, Brokerage Sites, Broker Franchise Sites and MRIS Member
Sites to such posted Xxxxxx.xxx images. The parties will use best efforts to
work together to expeditiously implement, and maintain throughout the Term, a
system whereby Company will be capable of establishing links from the Xxxxxx.xxx
Images as provided herein or, if required pursuant to the preceding sentence,
xxxxxx.xxx will be capable of posting Xxxxxx.xxx Images to the Xxxxxx.xxx
Server. Links from servers located at xxxxxx.xxx's facilities or postings on the
Xxxxxx.xxx Server, as the case may be, will remain active as long as the
Property remains on the market, up to a maximum of [*] unless the ordering
MRIS Subscriber requests an extension. Without the prior written permission of
Company, xxxxxx.xxx will not display, on the HTML page surrounding any linked
Xxxxxx.xxx Image produced on behalf of an MRIS Subscriber, any advertisements
that link to the Web site of any third party. Xxxxxx.xxx will use commercially
reasonable efforts during the Term to maintain and enhance the Xxxxxx.xxx
Technology to remain competitive in the real estate virtual tour market. In
addition, during the Term, as reasonably determined by xxxxxx.xxx, xxxxxx.xxx
will provide second-level technical support to Company during regular business
hours with respect to the Xxxxxx.xxx Server and orders placed by MRIS
Subscribers.
(a) Xxxxxx.xxx Server. Xxxxxx.xxx will only be obligated to provide
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the Xxxxxx.xxx Server pursuant to Section 2.2. The Xxxxxx.xxx Server, if
required pursuant to Section 2.2, will be located in a secure site at Company's
offices that is mutually acceptable to the parties. The Xxxxxx.xxx Server and
all Xxxxxx.xxx Technology and Xxxxxx.xxx Images residing on the Xxxxxx.xxx
Server are, and at all times throughout the Term will remain, the exclusive
property of Xxxxxx.xxx. Xxxxxx.xxx alone will operate and maintain the
Xxxxxx.xxx Server, and Company will provide Xxxxxx.xxx's representatives with
reasonable access to perform such services; provided, however, that, if
xxxxxx.xxx so requests during the Term, the Company will provide reasonable
assistance with respect to the Xxxxxx.xxx Server, including, without limitation,
performance of backups, reboots and reconfigurations. During the Term, Company
will be responsible for any damage to or loss of the Xxxxxx.xxx Server, or data
residing on the Xxxxxx.xxx Server, as long as the Xxxxxx.xxx Server is located
at Company's site, provided that the damage or loss is not attributable to
Xxxxxx.xxx. Xxxxxx.xxx will use commercially reasonable efforts to eliminate
Xxxxxx.xxx Server downtime within its control, subject to scheduled outages and
maintenance.
2.3 [*]. Notwithstanding Section 2.1, with
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respect to all [*], xxxxxx.xxx will be responsible for receiving orders,
capturing images at designated sites through the Service Provider Network, and
invoicing and collecting revenues. Xxxxxx.xxx will automatically post or link
to the appropriate servers, as provided in Section 2.2, all Xxxxxx.xxx Images
generated through [*], except in those cases in which (a)
the MRIS Subscriber objects to the posting and/or (b) the [*] objects to the
posting.
2.4 Preferred Vendor. Xxxxxx.xxx will be the preferred vendor of Virtual
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Tour Images for the MRIS System and Company Site. Except as specifically
provided below, Company will not directly or indirectly promote itself, or act,
as a provider of Virtual Tour Images, nor will it promote or use the services of
any third party acting in such capacity. In addition, Company will not permit
any Virtual Tour Images or related technology or services of any third party to
be posted to, linked to or otherwise made accessible through the MRIS System Or
Company Site. Notwithstanding the foregoing, Company will not be restricted from
accommodating any third-party Virtual Tour Images already posted on or linked to
the Company Site and/or MRIS System prior to the Term or from posting or linking
of third-party Virtual Tour Images to the Company Site and/or MRIS System for
those MRIS Subscribers that insist on alternative virtual
[*]=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.
tour solutions, during the Term.
3. MARKETING AND PROMOTION
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3.1 Company Obligations Company agrees to market, promote and facilitate
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orders of the Production Services as follows:
(a) MRIS System and Company Site. Company agrees to prominently market
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and promote the Production Services on the Company Site and, to the extent
within Company's control, in the MRIS System. Such marketing and promotion will
include, without limitation:
(i) prominent inclusion on the "home page" of the Company Site
and on each page of the Company Site and MRIS System displaying a Xxxxxx.xxx
Image, of a xxxxxx.xxx logo that, when clicked on, links directly to a page
providing information about the Production Services and an electronic order form
permitting MRIS Customers to submit Orders for Production Services to
xxxxxx.xxx;
(ii) inclusion, on each listing search results page on the
Company Site displaying listings for which Xxxxxx.xxx Images are available, of a
xxxxxx.xxx logo that, when clicked on, links directly to such Xxxxxx.xxx image;
and
(iii) best efforts to include, within the Company Site a gallery
of Xxxxxx.xxx Images for listings from MRIS Subscribers.
In the event the MRIS System becomes capable of displaying a mechanism (in the
form of a button, logo or other link) for ordering xxxxxx.xxx Production
Services by means of [*] during the Term, Company shall not permit the display
of such ordering mechanism by means of the [*] within the MRIS System unless,
and until such time as, [*] and [*] enter into [*].
(b) Email; Direct Marketing; Print Advertising. To the extent Company
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creates and distributes email, direct marketing and print advertising promoting
the Company Site and MRIS System, including without limitation advertising in
magazines, flyers, brochures, newsletters and general mailings, Company will
include, at it's discretion, from time to time, in such advertising a xxxxxx.xxx
logo and a brief, suitable reference, approved by xxxxxx.xxx, regarding the
availability of the Production Services.
(c) Seminars and Trade Shows. As appropriate, Company will invite
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xxxxxx.xxx to participate and distribute information about the Production
Services at trade shows, conventions and training seminars that Company hosts or
attends during the Term.
(d) Joint Press Release. Company will participate with xxxxxx.xxx in
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issuing a joint press release regarding the relationship established through
this Agreement. Each party shall agree on the form and content of such press
release and will furnish its written acceptance of, or comments on, the proposed
announcement within 48 hours of receipt of such proposed announcement; otherwise
such proposed announcement will be deemed approved. Any other press announcement
by either party regarding the subject matter of this Agreement will be subject
to the other party's approval, which shall not be withheld or delayed
unreasonably.
(e) Advertisements of Competitors, Without the prior approval of
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xxxxxx.xxx, Company will not display any advertisements of any competitor of
xxxxxx.xxx anywhere within the MRIS System or the Company Site during the Term.
For the purposes of this section, "competitor of xxxxxx.xxx" means any provider
of Virtual Tour Images, including, but not limited to, [*].
3.2 Obligations of Xxxxxx.xxx. Xxxxxx.xxx will use commercially reasonable
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efforts to market and promote the fact that the Production Services are
available through Company.
3.3 Additional Obligations. Xxxxxx.xxx and Company will, from time to
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time, use reasonable efforts to cooperate in joint marketing efforts. Each party
will assign a project manager to act as the primary liaison with respect to the
relationship.
4. PAYMENTS
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4.1 Transaction Fees. During the Term, the parties will make payments
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based on sales of Production Services ("Transaction Fees") as follows:
(a) Except as provided in Section 4.1(b), with respect to [*] (i)
Company will [*] of [*] from the sale of [*] (solely based on the portion of
the [*] price equal to the [*]; (ii) Company will [*] from the sale of [*]
(solely based on the portion of the [*] in excess of the [*] (if any )); and
(iii) Company will [*] for each [*] so ordered and [*] so ordered. For
example, if an order for one Basic Package and one Upgrade Package is placed
through [*], based on xxxxxx.xxx's [*], respectively, in effect as of the
Effective Date, Company will [*], As a further example, if an order for one
[*] is placed through Company's [*], based on xxxxxx.xxx's [*] in effect as of
the Effective Date, Company will [*] In order to permit Company to pay for the
costs of Company's [*] during the Term, notwithstanding anything to the
contrary herein, in no event will Company [*] for each [*], regardless of any
promotional pricing that xxxxxx.xxx implements during the Term.
(b) With respect to orders [*] for Basic Packages, Upgrade Packages
and [*] originated through [*] in the Territory or through tradeshows,
seminars or conferences in the Territory [*], Company will [*], from such
orders (the [*]) and [*] for each Basic Package and [*] so ordered; provided,
however, that the [*] will only apply to [*] from MRIS Subscribers, and
payments for any subsequent orders will be made in accordance with Section
4.1(a). For the purposes of the preceding sentence, (a) [*] means an order for
one Basic Package, [*] or Upgrade Package to be captured within sixty (60)
days after the entry of such order into the Company [*] and (b) First-Time-
Order status will be determined on a person-by-person basis in the event that
a MRIS Subscriber is an entity comprising several individuals. Subject to the
[*] and except as provided in Section 4.1(c), all orders from MRIS Subscribers
[*] in the Territory or through tradeshows, seminars or conferences in the
Territory not hosted by Company will constitute [*], and xxxxxx.xxx will
forward all such orders to Company's [*].
(c) With respect to all [*], xxxxxx.xxx will pay Company the [*]
sold or [*], solely based on the portion of the [*] in excess of the [*] and
price (if any).
[*]=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.
(d) Company will not [*] any (i) Administrative Fees xxxxxx.xxx
charges with respect to goods or Services of xxxxxx.xxx other than the
Production Services sold to MRIS Subscribers hereunder, subject to the
following sentence; (ii) payments with respect to Production Services,
xxxxxx.xxx Images or other goods and services of xxxxxx.xxx sold or licensed
to third parties other than as expressly provided for in this Agreement or
(iii) except as provided in the final sentence of Section 4.1(a), payments
with respect to any Production Services the parties mutually agree xxxxxx.xxx
may distribute to MRIS Subscribers on a promotional basis free of charge.
Company will [*] of Administrative Fees xxxxxx.xxx charges with respect to
Production Services sold to MRIS Subscribers hereunder.
The following table summarizes the payments to be made pursuant to this Section
4.1:
[*]
4.2 Payment of Fees. The parties will issues all payments due with respect
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to each order pursuant to Section 4.1 net thirty (30) days from the [*] in
which such order was received. With each [*] payment, the paying party will
provide a report stating the number of Basic Packages, Upgrade Packages and
[*] sold in accordance with Section 4.1 during [*] and providing a payment
calculation.
5. PROPRIETARY RIGHTS
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5.1 Xxxxxx.xxx for Java Software.
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(a) Xxxxxx.xxx hereby grants to Company a nonexclusive, worldwide,
royalty-free license to use the Xxxxxx.xxx for Java Software during the Term, in
object code only, to display Xxxxxx.xxx Images on the Company Site and the MRIS
System. "Use" means storing, loading, installing, executing, transmitting or
displaying the Xxxxxx.xxx for Java Software. Company may not modify the
Xxxxxx.xxx for Java Software or disable any licensing or control features of the
Xxxxxx.xxx for Java Software.
(b) The Xxxxxx.xxx for Java Software is owned and copyrighted by
xxxxxx.xxx. The license set forth in this Section 5.1 confers no title to, nor
ownership in, the Xxxxxx.xxx for Java Software and is not a sale of any rights
in the Xxxxxx.xxx for Java Software.
(c) Company may only make copies of the Xxxxxx.xxx for Java Software
for archival purposes or when copying is an essential step in the authorized use
of the Xxxxxx.xxx for Java Software. Company must reproduce all copyright
notices in the original Xxxxxx.xxx for Java Software on all copies or
adaptations. Company may only transfer class files when they are called on by a
"requesting" server in the normal course of Java Applet execution. Company may
not distribute the Xxxxxx.xxx for Java Class files. Any transfer or copying of
the Xxxxxx.xxx for Java Software by Company other than as expressly provided
herein constitutes a material breach of this Agreement.
(d) Company may only use the Xxxxxx.xxx for Java Software to read .jut
files, a file format proprietary to xxxxxx.xxx, or such successor file format as
xxxxxx.xxx may implement.
(e) Company may not tamper with or alter in any way the image
displayed when loading each xxxxxx.xxx Image ("Xxxxxx.xxx Splash Screen") and
Company shall not hinder the Xxxxxx.xxx Splash Screen from being fully visible
upon loading of each Xxxxxx.xxx Image. Company will not obstruct in any way the
Xxxxxx.xxx Splash Screen and/or screen logo with any other images, frames,
tables or any other HTML or JavaScipt code.
(f) Company will not disassemble or decompile the Xxxxxx.xxx for Java
Software including single Xxxxxx.xxx Java Class files under any circumstances.
The disassembly or decryption by Company of any Xxxxxx.xxx Java Class file
constitutes a material breach of this Agreement.
(g) Company will not export or re-export the Xxxxxx.xxx for Java
Software or any copy or adaptation in violation of any applicable laws or
regulations.
(h) The Xxxxxx.xxx for Java Software and accompanying documentation
are deemed to be "commercial computer software" and "commercial computer
software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR
12.212(b), as applicable. Any use, modification, reproduction, release,
performance, display or disclosure of the Xxxxxx.xxx for Java Software and/or
the accompanying documentation by the U.S. Government or any of its agencies
shall be governed solely by the terms of this Agreement and shall be prohibited
except to the extent expressly permitted by the terms of this Agreement. Any
technical data provided that is not covered by the above provisions is deemed to
be "technical data-commercial items" pursuant to DFAR Section 227.7015(a). Any
use, modification, reproduction, release, performance, display or disclosure of
such technical data shall be governed by the terms of DFAR Section 227.7015(b).
5.2 Xxxxxx.xxx Technology; Xxxxxx.xxx Know-How.
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(a) All Xxxxxx.xxx Technology, Xxxxxx.xxx Know-How and Xxxxxx.xxx
Images, whether or not produced for Company customers and whether or not posted
to or linked to the Company Site, the MRIS System, a Brokerage Site, a Broker
Franchise Site or an MRIS Subscriber Site, are, and at all times will remain,
the exclusive intellectual property of xxxxxx.xxx, and no provision of this
Agreement implies any transfer to Company of any ownership interest in any
Xxxxxx.xxx Technology, Xxxxxx.xxx Know-How or Xxxxxx.xxx Images; provided,
however, that, with respect to any Xxxxxx.xxx Image produced for an MRIS
Subscriber hereunder and linked to the MRIS System, [*]
(b) Xxxxxx.xxx hereby grants to Company a nonexclusive, worldwide,
royalty-free, nontransferable license to display, perform and reproduce
Xxxxxx.xxx Images solely for the purposes contemplated in this Agreement as
follows: (i) on the Company Site and the MRIS System during the Term and (ii)
following termination or expiration of this Agreement, on the Company Site and
MRIS System until one (1) year after the date of such termination or
expiration. Company will not distribute, modify,
[*]=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.
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.
(c) Xxxxxx.xxx hereby grants to Company a limited, royalty-free,
nontransferable, nonexclusive license to use the Xxxxxx.xxx Know-How during the
Term solely for the purposes contemplated in Section 2.1 of this Agreement. The
foregoing license does not include any right to grant or authorize sublicenses.
5.3 Trademarks.
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(a) Xxxxxx.xxx owns and at all times will continue to own the
trademarks, service marks and/or trade names XXXXXX.XXX and the xxxxxx.xxx logo,
as well as any name or xxxx xxxxxx.xxx may subsequently adopt as a trade name or
to designate the Production Services (collectively, the "Xxxxxx.xxx Marks"), and
Company will not take any actions inconsistent with xxxxxx.xxx's ownership
rights. Company owns and at all times will continue to own the trademarks,
service marks and/or trade names customarily used by Company during the Term
(the "Company Marks"), and xxxxxx.xxx will not take any actions inconsistent
with Company ownership rights. Each party's use of the other party's marks will
not create in the using party any right, title or interest therein or thereto,
and all such use will inure to the exclusive benefit of other party.
(b) Subject to the restrictions set forth herein, xxxxxx.xxx hereby
grants Company a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Xxxxxx.xxx Marks, during the Term, with
xxxxxx.xxx's prior written approval, which xxxxxx.xxx will not unreasonably
withhold or delay, solely in connection with Company's operation of the call
center, promotion and marketing of the Production Services and/or 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, solely in connection with xxxxxx.xxx's
promotion and marketing of the Production Services and/or 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. Xxxxxx.xxx may sublicense the rights granted in this Section
5.3(b) to members of the Service Provider Network, but may not authorize such
members to grant further sublicenses.
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
eighteen (18) months. Thereafter, this Agreement will be automatically renewed
for successive one (1) year 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.
6.2 Termination for Breach. This Agreement will terminate in the event a
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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 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 Survival of Certain Terms. The provisions of Sections 5.1(b), 5.1(e)-
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(h), 5.2(a), 5.3(a), 5.4, 6.3, 7, 8, 9 and 10 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. Upon
expiration or termination, except as provided in Section 5.2(b), (i) Company and
xxxxxx.xxx will cease all use of marks of the Other party, (ii) Company will
cease all use of the Xxxxxx.xxx Images, Xxxxxx.xxx Know-How and Xxxxxx.xxx
Technology, and (iii) Company will return the Xxxxxx.xxx Server to xxxxxx.xxx.
7. 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.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
Each party represents and warrants to the other that (i) it is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) it has full right, power and
authority to enter into this Agreement and to perform all of its obligation
hereunder; (iii) this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with its terms; and (iv) its execution,
delivery and performance of this Agreement will not result in a breach of any
material agreement or understanding to which it is a party or by which it or any
of its material properties may be bound. THE WARRANTIES PROVIDED BY THE PARTIES
HEREIN ARE THE ONLY WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF ALL OTHER
WARRANTIES BY THE PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 2.4, 7 OR 10.2, 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.
10. GENERAL PROVISIONS
------------------
10.1 Notices. Any notice required or permitted by this Agreement will be
-------
deemed given if sent to the other party at the address set forth at the top of
this Agreement by (a) registered mail, postage prepaid or (b) prepaid overnight
courier. Delivery will be deemed effective three (3) days after deposit with
postal authorities for registered mail, and one (1) day after deposit with an
overnight courier.
10.2 Scope of Authority. Company's sole authority as an agent of
------------------
xxxxxx.xxx will be to [*], and Company shall have no power or authority,
expressed or implied, to make any other commitment or incur any other
obligations on behalf of xxxxxx.xxx, including without limitation issuing any
warranty regarding the Production Services. Except to the limited extent
expressed in Section 2.1, the relationship of xxxxxx.xxx and Company
established by this Agreement is that of independent contractors. Company
shall indemnify, defend and hold harmless xxxxxx.xxx from and against any and
all claims, suits, damages and expenses (including without limitation
reasonable attorneys' fees) arising out of (a) any action of Company outside
of the scope of authority granted in Section 2.1 (b) the performance by
Company's
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
[*]; and (c) any material breach by members of Company's [*] of
this Agreement or the standards set forth in Exhibit A. Xxxxxx.xxx shall
indemnify, defend and hold harmless Company from and against any and all claims,
suits, damages and expenses (including without limitation reasonable attorneys'
fees) arising out of (a) any infringement of a third party's copyrights,
patents, trademarks or trade secrets caused by Company's use of the Xxxxxx.xxx
Technology, Xxxxxx.xxx Images or Xxxxxx.xxx Marks as permitted in this Agreement
or (b) any material breach of this Agreement by members of the Service Provider
Network. During the Term, and for a period of two (2) years following any
expiration or termination of this Agreement, Company shall not solicit or hire
any employee of xxxxxx.xxx to work for Company to provide Virtual Tour Images.
10.3 Miscellaneous. 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 xxxxx where failure
to perform is beyond the control and not caused by the negligence or willful
misconduct of the non-performing party. Section 5 of this Agreement will be
governed by and construed under the laws of the State of California without
reference to conflict of laws principles; all other sections of this Agreement
will be governed by and construed under the laws of the State of Maryland
without reference to conflict of laws principles. This Agreement, together with
all exhibit and attachments hereto, sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged, and the waiver of any
breach or default will not constitute a waiver of any other right hereunder or
any subsequent breach or default. Neither party may assign this Agreement, or
assign or delegate any right or obligation hereunder, without the prior written
consent of the other party; provided, however, that either party may assign this
Agreement or assign or delegate its rights and obligations under this Agreement
to a successor to all or substantially all of its business or assets relating to
this Agreement whether by sale, merger, operation of law or otherwise. This
Agreement may be executed by exchange of signature pages by facsimile and/or in
any number of counterparts, each of which shall be an original as against any
party whose signature appears thereon and all of which together shall constitute
one and the same instrument,
10.4 Arbitration. 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, xxxxxx.xxx on the one hand and Company 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX.XXX, INC. METROPOLITAN REGIONAL INFORMATION SYSTEMS,
INC.
By: /s/ Xxxxxx Field By: /s/ Xxxx X. Xxxx
___________________________ ___________________________
Name: Xxxxxx Field Name: Xxxx X. Xxxx
__________________________ _________________________
Title: Vice President Title: President and
________________________ Chief Executive Officer
_________________________
Date: June 9, 1999 Date: June 9, 1999
___________________________ _________________________
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT A
---------
[*]
1. To the extent xxxxxx.xxx deems necessary in its reasonable discretion,
xxxxxx.xxx may request that members of Company's [*] attend mandatory training
sessions conducted by xxxxxx.xxx. Company will provide xxxxxx.xxx with access to
[*] for training purposes. Prior to taking any calls, each [*] must be properly
trained by xxxxxx.xxx or such Company representative as xxxxxx.xxx shall
designate.
2. [*] will only receive orders for Production Services with respect to
listings from MRIS Subscribers for Property located within the Territory or
otherwise authorized in writing by xxxxxx.xxx, which authorization xxxxxx.xxx
will not unreasonably withhold or delay, for inclusion in the MRIS System.
With respect to all [*] not meeting the foregoing criteria [*], the [*] will
implement a system with xxxxxx.xxx whereby [*] will immediately forward to the
xxxxxx.xxx [*]. Xxxxxx.xxx will have the right to pursue in its discretion any
leads from through its own [*] and to expand xxxxxx.xxx's service provider
network appropriately. No orders resulting from Misdirected Calls will
constitute [*].
3. The [*] will make commercially reasonable efforts to [*].
4. Each party will designate an individual representative that will be the
dedicated liaison for the [*] (the "Representatives"). In addition to any other
meetings scheduled from time to time, the Representative from each party will
meet quarterly for reviews.
5. [*] shall use it's best efforts to maintain a [*] for information being
entered into the xxxxxx.xxx online order forms. Xxxxxx.xxx, in its discretion,
may generate a report with an information error rate and deliver it to Company
once per month. When xxxxxx.xxx places a request for an outbound call to a
client to fix an erroneous entry by the [*] will use commercially reasonable
efforts to make the outbound call within one hour or less on the average and
report via email the completion of [*] to the xxxxxx.xxx dedicated contact for
the [*]. The parties will work together to build a call-back and issue-
resolution schedule for any and all erroneous or special orders placed through
the [*].
6. Parties will mutually agree on reasonable guidelines for issuing "make-goods"
and re-shoots. The Representatives will report to each other on the number and
nature of such issuances on a monthly basis.
7. [*] will operate and [*], at a minimum, during the
following hours: [*] and [*].
8. Company will use commercially reasonable efforts to cause [*] for
xxxxxx.xxx orders [*], calculated on a monthly basis, and will have an [*],
calculated on a monthly basis. [*] will implement a system for recording the
number of [*] verses orders placed daily, and will maintain such additional
statistics on [*] and customer service as xxxxxx.xxx shall reasonably request
from time to time during the Term.
9. Company agrees to take such additional steps to ensure the proper and
efficient operation of [*] as xxxxxx.xxx, in xxxxxx.xxx's reasonable
discretion, may request from time to time during the Term.
[*]=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.
EXHIBIT B
---------
[*]
Xxxxxx.xxx will use commercially reasonable efforts to ensure [*] Xxxxxx.xxx
Images produced under the Agreement [*] meet the following performance
criteria during the Term:
[*]:
---
[*] in the aggregate, will [*] The [*] is to be measured by the total number
of minutes during a calendar month in which the [*] are available divided by
the total number of minutes during the calendar month. For purposes of the [*]
is calculated from the time xxxxxx.xxx detects or otherwise becomes aware of
an incidence of a [*] and ending when the [*], regardless of where the [*].
[*]:
---
Measured as an average for each calendar month, [*], in the aggregate, will
[*] in the U.S. in under [*].
[*]:
---
Xxxxxx.xxx will notify Company immediately upon discovery in the event any [*]
experiences continuous, [*]; provided, however, that xxxxxx.xxx will have no
obligation to provide such notification with respect to [*] caused by [*]
outside of xxxxxx.xxx's reasonable control.
[*]=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.
