EXHIBIT 10.10
DISTRIBUTION AGREEMENT
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THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of
________, ____ (the "Effective Date"), between xxxxxx.xxx, Inc., a Delaware
corporation with an office at 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
("xxxxxx.xxx"), and ___________________________________ ("Company"), a
___________ corporation with an office at ___________________________
("Company").
Xxxxxx.xxx uses the Xxxxxx.xxx Technology and provides the Production
Services. Company operates the Company MLS Database and the Company Site.
Xxxxxx.xxx desires to provide virtual tour technology and Production Services
for the Company Members. 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 "Xxxxxx.xxx Image" means an electronic image of a Property
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produced by or on behalf of xxxxxx.xxx.
1.2 "Xxxxxx.xxx Technology" means software and hardware, including
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the Software, used to capture, process and view Xxxxxx.xxx Images.
1.3 "Company Member" means a real estate agent or Broker that is a
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participant of the Company and has access to the Company MLS Database.
1.4 "Company MLS Database" means the collection of data residing on
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servers operated by or for Company or its affiliate and accessible by Company
Members and, to the extent Company makes such collection generally available, by
the public via the Internet.
1.5 "Company Site" means the collection of HTML documents residing on
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servers operated by or for Company or its affiliate and accessible on or after
the Effective Date by Company Members or the public via the Internet, including
those currently accessible at the URL xxxx://xxx.________.com.
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1.6 "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 of this Agreement (the
"Confidential Information"). 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.
1.7 "MLS Software System" means the password protected user
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interface, consisting of HTML pages and including any future versions of such
interface, that Company Members access via the Internet to obtain listings and
other information in the Company MLS Database.
1.8 "Production Services" means the services provided by or on behalf
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of xxxxxx.xxx in producing the Xxxxxx.xxx Images.
1.9 "Property" means any piece of raw land, residential, or
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commercial real estate within the Xxxxxx.xxx Service Provider Network territory
and entered into the Company MLS Database and/or onto the Company Site,
including without limitation new homes, offered for sale or resale.
1.10 "Service Provider Network" means the network of individuals
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throughout ________ with whom xxxxxx.xxx has entered into agreements to capture
images at designated sites on xxxxxx.xxx's behalf.
1.11 "Virtual Tour Images" means 360, 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; EXCLUSIVITY
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2.1 Sales and Billing. Xxxxxx.xxx will be responsible for receiving
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and fulfilling orders and invoicing and collecting revenues for all sales of
Virtual Tour Images.
2.2 Image Capturing, Processing and Linking. Xxxxxx.xxx will have
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sole responsibility for, and will bear all costs associated with, capturing
images at designated sites through its Service Provider Network and processing
captured images to create Xxxxxx.xxx Images. Company will permit linking of
Xxxxxx.xxx Images to the Company Site and/or Company MLS Database, and the
parties will use best efforts to work together to expeditiously implement, and
maintain throughout the term of this Agreement, a system whereby Company will be
capable of linking Xxxxxx.xxx Images to the appropriate Company MLS properties,
enabling viewing of such Xxxxxx.xxx Images through the Company Site and the
Company MLS Database. Each link to the Company Site and the Company MLS Database
will remain active as long as the Property remains on the market, up to a
maximum of six (6) months unless the ordering Company Member requests an
extension. Xxxxxx.xxx will provide a link to all Xxxxxx.xxx Images for the
appropriate properties on the Company Site and the Company MLS, except in those
cases where: (a) the Company Member objects to the link; and/or (b) the Web site
or other third-party channel originating the sale of such Xxxxxx.xxx Images
(collectively, the "Third-Party Originator") objects to the link. In the event a
Third-Party Originator objects to the link, xxxxxx.xxx will provide twenty (20)
days prior written notice of the objection to Company before discontinuing the
link to the Company Site and/or the Company MLS Database.
2.3 Exclusivity. Xxxxxx.xxx will be the exclusive provider of
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Virtual Tour Images for the Company Site and the MLS Software System/Company MLS
Database. 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 MLS Software
System, Company Site, or Company MLS Database.
3. MARKETING AND PROMOTION
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3.1 Company Obligations. Company agrees to market, promote and
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facilitate orders of the Production Services as follows:
(a) MLS Software System and Company Site. Company agrees to
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prominently market and promote the Production Services in the MLS Software
System and Company Site. Such marketing and promotion will include, without
limitation:
(i) A method to order Production Services from within the
MLS Software System at the time that a Company Member enters listing information
as well as on the first page that is accessed on the Company MLS Database by a
Company Member.
(ii) A button (which incorporates the xxxxxx.xxx logo)
which links to a Web page containing a description of the Production Services on
the homepage of the Company Site currently accessible via the URL
xxxx://xxx._________.com/.
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(iii) Generation of a gallery of virtual tours on the
homepage of the Company Site which will display Xxxxxx.xxx Images for listings
from the Company MLS Database and/or Company Site.
(b) Print Advertising. To the extent Company creates and
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distributes print advertising promoting the Company Site, the Company MLS
Database and MLS Software System, including without limitation print advertising
in magazines, flyers, newsletters, billing statements and general mailings,
Company will include, from time to time, in such advertising a xxxxxx.xxx logo
and a brief, suitable reference to the availability of the Production Services.
(c) Email and Direct Marketing. Company agrees to include in
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email and direct marketing that it generates from time to time a section,
reasonably satisfactory to xxxxxx.xxx, highlighting the availability and
features of the Production Services. In addition, the parties will work together
to create flyers containing marketing information regarding the Production
Services, to be distributed through an insertion in the company's monthly
invoices (12) times during each twelve (12) month period in the term of this
Agreement.
(d) Seminars and Trade Shows. Company will invite xxxxxx.xxx to
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speak and promote its Production Services at appropriate seminars and training
sessions Company conducts for Company Members during the term of this Agreement.
Company or its sales representatives will distribute to Company Members at
seminars and training sessions subscription forms and marketing materials
created by xxxxxx.xxx that promote the Production Services.
(e) Joint Press Release. Company will participate with
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xxxxxx.xxx in issuing a joint press release regarding the relationship
established through this Agreement. Each party will furnish its written
acceptance of, or comments on, the proposed joint announcement within 48 hours
otherwise it 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.
(f) 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 MLS Software System, the Company MLS Database or
the Company Site during the term of this Agreement. For the purposes of this
Section 3.1(f), "competitor of xxxxxx.xxx" means any provider of Virtual Tour
Images, including, but not limited to, _____________.
3.2 Additional Obligations. Xxxxxx.xxx and Company will, from time
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to 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. PROPRIETARY RIGHTS
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4.1 Xxxxxx.xxx Technology.
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(a) All Xxxxxx.xxx Technology, including without limitation the
Software and all Xxxxxx.xxx Images, whether or not produced for Company
customers and whether or not posted to or linked to the Company MLS Database
and/or Company Site, are, and at all times will remain, the exclusive property
of xxxxxx.xxx, and no provision of this Agreement implies any transfer to
Company of any ownership interest in any such Xxxxxx.xxx Technology.
(b) Xxxxxx.xxx hereby grants to Company a nonexclusive,
worldwide, royalty-free, nontransferable license to include links to Xxxxxx.xxx
Images on the Company MLS Database or Company Site 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.
4.2 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 of
this Agreement (the "Company Marks"), and xxxxxx.xxx will not take any actions
inconsistent with Company' ownership rights. Each party's use of the other
party's marks will not create in the using party any right, title or interest
therein or thereto, and all such use will inure to the exclusive benefit of
other party.
(b) Subject to the restrictions set forth herein, xxxxxx.xxx
hereby grants Company a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Xxxxxx.xxx Marks, during the term of this
Agreement, with xxxxxx.xxx's prior written approval, which xxxxxx.xxx will not
unreasonably withhold or delay, solely in connection with the financing of
Company and/or promotion and marketing of the Production Services as provided in
Section 3. Subject to the restrictions set forth herein, Company hereby grants
xxxxxx.xxx a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Company Marks, during the term of this
Agreement, solely in connection with promotion and marketing of the Production
Services and/or financing of xxxxxx.xxx. 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
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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.
4.3 Limitation on Grant of Rights. Except as expressly provided
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herein, neither party receives any other right or license to the technology or
intellectual property of the other party.
5. TERM AND TERMINATION
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5.1 Term. Unless earlier terminated as set forth below, this
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Agreement will become effective upon the Effective Date and continue for a
period of ______. 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.
5.2 Termination for Breach. This Agreement will terminate in the
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event a 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.
5.3 Survival of Certain Terms. The provisions of Sections 4.1(a),
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4.2(a), 4.3, 5.3, 6, 7, 8 and 9 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 termination,
(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.
6. 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.
7. REPRESENTATIONS AND WARRANTIES
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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.
8. LIMITATION OF LIABILITY
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EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 2.3 OR 6, 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.
9. GENERAL PROVISIONS
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9.1 Notices. Any notice required or permitted by this Agreement will
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be deemed given if sent by registered mail, postage prepaid, addressed to the
other party at the address set forth at the top of this Agreement. Delivery will
be deemed effective three (3) days after deposit with postal authorities.
9.2 Miscellaneous. Nonperformance of either party will be excused to
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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 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. 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX.XXX, INC. [Name of Company]
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By:__________________________ By:____________________________
Name:________________________ Name:__________________________
Title:_______________________ Title:_________________________
Date:________________________ Date:__________________________
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