EXHIBIT 10.04
Joint Ownership Agreement
This Joint Ownership Agreement ("Agreement") is entered into November 26, 1996
by and between the NATIONAL ASSOCIATION of REALTORS(R), an Illinois not for
profit corporation having offices at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000 ("NAR"), and NetSelect, L.L.C., a Delaware limited liability
company having offices at 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx 00000 ("NetSelect") and NetSelect, Inc., a Delaware corporation
having offices at 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx 00000 ("NetSelect, Inc.").
WHEREAS, the REALTORS Information Network/TM/, Inc., a wholly owned subsidiary
of NAR and RealSelect, Inc., ("RealSelect") which is owned in part by NetSelect,
have entered into an Operating Agreement (as hereinafter defined);
WHEREAS, NAR and NetSelect desire to own jointly the Software and Enhanced
Software (as each are hereinafter defined) used by RealSelect to perform its
obligations under the Operating Agreement;
WHEREAS, the parties desire to limit certain of their business activities during
the term of the Operating Agreement;
NOW, THEREFORE, in consideration of the foregoing and mutual agreements
hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
Definitions
1.1 "Agreement" shall mean this Joint Ownership Agreement.
"Control" shall mean the beneficial ownership of more than 50% of the
equity or voting securities of any Person.
"Controlled Entities" shall mean any Person which is (i) owned or
controlled by NAR, NetSelect or NetSelect, Inc. or (ii) is owned or
controlled by such Person or (iii) is under common control with such
Person.
"Enhanced Software" shall have the meaning specified in Article III.
"Operating Agreement" shall mean that certain Operating Agreement dated the
date hereof between RealSelect and REALTORS(R) Information Network, Inc.
"Person(s)" shall mean any actual person, partnership, limited liability
company, corporation, business trust, joint stock company, trust,
unincorporated association, or joint venture.
"Real Estate Related Business" shall mean real estate brokerage, real
estate management, mortgage financing, appraising, counseling, land
development and building, title
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insurance, escrow services, franchising, operation of an association
comprised of real estate licensees and operation of a multiple listing
service.
"Software" shall mean the software described in Schedule A.
ARTICLE II
Joint Ownership
2.1 NetSelect hereby grants joint and independent right, title and interest,
including without limitation all copyrights, in the Software to NAR.
Until the termination of the Operating Agreement, NAR and its Controlled
Entities use of the Software and the Enhanced Software shall be solely in
connection with the Electronic Display (as defined in the Operating
Agreement) of information in connection with Real Estate Related
Businesses.
2.2 NetSelect shall provide NAR an electronic copy of the source code of the
Software by December 10, 1996. During the term of the Operating
Agreement, NAR shall not, nor shall it permit its Controlled Entities to,
sublicense, transfer, distribute, assign, disclose or give a copy of the
Software or Enhanced Software to a Person other than NAR or a Controlled
Entity.
2.3 NetSelect shall have the right to modify, use, license, distribute, copy,
display and maintain the Software for all purposes without accounting for
profits, including without limitation the right to grant a non-exclusive,
royalty free license to the Software and the Enhanced Software to
RealSelect.
ARTICLE III
Enhancements
Any modification, update, correction, upgrade, enhancement and development
made by or for NetSelect or NAR to the Software ("Enhanced Software") during the
term of the Operating Agreement shall be jointly owned by NAR and NetSelect and
subject to the rights granted by, and restrictions of, this Agreement. As of
the date of termination of the Operating Agreement, Enhanced Software shall be
jointly and independently owned by NAR and NetSelect. NetSelect agrees to
transfer to NAR a copy of Enhanced Software, including related documentation and
materials, as of the date of termination of the Operating Agreement. After the
termination of the Operating Agreement, (i) NAR shall have unrestricted and
unlimited ownership rights in the Software and Enhanced Software, except that
any use by NAR or its Controlled Entities of the Software and Enhanced Software
shall be limited to Real Estate Related Businesses, (ii) NAR and its Controlled
Entities may only license, transfer, distribute, assign, disclose or give a copy
of the Software or Enhanced Software to a Person for use in Real Estate Related
Businesses, and (iii) any modification, update, correction, upgrade, enhancement
or development shall be owned by the party creating same.
ARTICLE IV
Restrictions
Each of the parties agrees for itself and on behalf of its Controlled
Entities that, except as permitted in the Operating Agreement, during the term
of the Operating Agreement, it and its Controlled Entities shall not engage,
directly or indirectly, in the Electronic Display of Real
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Property Ads (each as defined in the Operating Agreement) and shall not directly
or indirectly develop, market, sell, acquire an equity position in, be engaged
or employed by, or endorse, sponsor or support any service or enterprise or
authorize, appoint or engage any other Persons for the purpose of the Electronic
Display of Real Property Ads or real estate information similar to the content
of Real Property Ads. A failure by any party or its Controlled Entities to
comply with the obligations set forth in this Article shall not constitute a
breach of this Agreement unless it continues for thirty (30) days after written
notice has been given to the defaulting party by another party.
ARTICLE V
Warranties
NetSelect's grant of joint ownership of the Software and Enhanced Software
to NAR is on an "As Is", "Where Is" basis, without warranty of any kind
whatsoever, except that NetSelect hereby warrants that it has full and complete
ownership of the Software and knows of no claims challenging its ownership of
the Software, including copyright or patent claims. In the event that
NetSelect's ownership of the Software is adversely impacted by any patent claim
asserted by any Person, then NAR agrees to limit its remedies to those set forth
in Article VI.
THE PARTIES HEREBY WAIVE ANY AND ALL WARRANTIES IMPLIED BY LAW INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE VI
Infringement Indemnification
NetSelect shall indemnify and hold NAR, its Controlled Entities and their
respective officers, directors, agents and employees harmless from and against
any and all claims, demands, actions, losses, liabilities, expenses (including
reasonable legal fees and expenses), suits and proceedings arising from the
infringement or alleged infringement, of any third party's intellectual property
rights (including copyright, patent and other property rights or claims), in
relation to the Software and Enhanced Software. If such claim arises, or in
NetSelect's judgment is likely to arise, NetSelect may, at its option either:
(i) Pursue the right for, including entering into agreements which
permit, NAR and its Controlled Entities to continue to benefit from the Software
and Enhanced Software as provided herein; or
(ii) Replace or modify same in an equivalent manner so that it becomes
non-infringing; or
(iii) Discontinue the feature subject to such claim.
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ARTICLE VII
Miscellaneous
7.1 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given and
effective (a) upon receipt, if delivered in person, by cable, by telegram or
facsimile (b) one business day after deposit prepaid with a national overnight
express delivery service (e.g. Federal Express or Airborne) or (c) three
business days after deposit in the United States mail (registered or certified
mail, postage prepaid, return receipt requested):
If to NAR
National Association of REALTORS(R)
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Executive Vice President
Fax No.: (000) 000-0000
if to NetSelect
NetSelect, L.L.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President
Fax No.: (000) 000-0000
and if to NetSelect, Inc.
NetSelect, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President
or such other addresses as specified by the parties in writing from time to
time.
7.2 Amendments. This Agreement may be amended or modified only by a
written instrument so stating and executed by the parties.
7.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.4 Parties in Interest; No Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Notwithstanding the foregoing, the rights and
responsibilities of the parties under this Agreement may not be assigned without
the prior written consent of the other party.
7.5 Applicable Law. THIS AGREEMENT AND ALL THE RIGHTS AND DUTIES OF THE
PARTIES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS
AGREEMENT OR THE TRANSACTION(S) CONTEMPLATED BY IT, SHALL BE GOVERNED BY,
CONSTRUED, AND ENFORCED IN ACCORDANCE
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WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS RULES
RELATING TO CONFLICTS OF LAWS.
7.6 Waiver. No provision in this Agreement shall be deemed waived by
course of conduct, unless such waiver is in writing signed by both parties and
stating specifically that it was intended to modify this Agreement.
7.7 Partial Invalidity. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the remainder of
such invalid, illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
7.8 Negation of Agency. The parties are independent contractors. Nothing
contained herein shall be deemed to create an agency, joint venture, franchise,
or partnership relation between the parties, and no party shall so hold itself
out. No party shall have the right to obligate or bind another party in any
manner whatsoever, and nothing contained in this Agreement shall give or is
intended to give any rights of any kind to third persons.
7.9 Entire Agreement. This Agreement constitutes the entire agreement
between the parties governing the matters addressed herein. No prior agreement
or representation, whether oral or written, shall have any force or effect
thereon.
7.10 NAR Representation. NAR hereby represents that (i) the current RIN
debt owed to NAR is not in default and (ii) in November, 1994, the NAR Board of
Directors made the original loan to RIN on the condition that it be for a five
year term with principal and interest payments commencing at the beginning of
the fifth year.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the Effective Date.
NATIONAL ASSOCIATION OF REALTORS(R)
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------
Title: Executive Vice President
-------------------------------------
NetSelect, L.L.C.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: CEO
-------------------------------------
NetSelect, Inc.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: CEO
-------------------------------------
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the Effective Date.
NATIONAL ASSOCIATION OF REALTORS(R)
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
NetSelect, L.L.C.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
NetSelect, Inc.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
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Schedule A
Description of Software
1. The Software performs the following major functions:
A. Download property and member information from the Data Content Providers
and convert this information into the format need to display Real
Property Ads. This software's function is detailed in Section 5.3(a) and
Schedule I.
B. Displaying of Real Property Ads on the Internet as described in Section
5.3.(b), 5.4. and Schedule X.
X. Reformatting Real Property Ads data for interfacing with newspapers print
products.
D. Display and accounting for banner advertising.
E. Back office accounting functions for the Real Property Ad Business.
F. Back office customer service support software.
G. Credit card processing and accounting.
2. The Software includes all software developed by InfoTouch Corporation under
its DISTRIBUTION AND WEB SITE DEVELOPMENT AGREEMENT with RIN and any
enhancements and modifications thereto including all programs, scripts,
tables that store information and the HTML scripts that drive the screen
displays on the Domain Site.
3. The Software was developed and is maintained using a number of operating
systems and programming utilities licensed from third parties including but
not limited to the following:
A. Microsoft C++ compilers
B. Microsoft NT and Windows operating
C. Microsoft Back Office including Microsoft SQL server
D. Various communications and scripting languages including: Crosstalk,
Pearl, etc.
E. Various software utilities and tools used for development and
maintenance.
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