Exhibit 10.43
ACCESS AGREEMENT
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THIS ACCESS AGREEMENT (the "Agreement") is entered into as of July 15,
1999 (the "Effective Date"), by and between xxxxxx.xxx.Xxx, a Delaware
corporation with an office located at 000 Xxxxxxxxxx Xxxxxx #000, Xxxx Xxxx, XX
00000 ("xxxxxx.xxx") and Cendant Corporation, a Delaware corporation with an
office located at 0 Xxxxxx Xxx, Xxxxxxxxxx, XX 00000 ("Company").
Xxxxxx.xxx uses the Xxxxxx.xxx Technology and provides the Production
Services to its customers on a nationwide basis. In the event that Company, or
a Company affiliate establishes a real estate Super Site which aggregates
property listings contained on the web sites of the Franchisors for the Real
Estate Systems and the Super Site offers the opportunity to associate images
with such listings, xxxxxx.xxx desires that any such listings of the Real
Estate Systems for which xxxxxx.xxx provides Xxxxxx.xxx Images shall display
the Xxxxxx.xxx Images, on a non-exclusive basis, on the Super Site. 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 "Grant Fees" means the fees xxxxxx.xxx will pay to Company, as
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provided in Section 4.1.
1.2 "Xxxxxx.xxx Image" means an electronic image of a property
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produced by or on behalf of Xxxxxx.xxx through the use of Xxxxxx.xxx Technology.
1.3 "Xxxxxx.xxx Technology" means the software and hardware owned
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or liscensed by Xxxxxx.xxx, including Xxxxxx.xxx Images and the Xxxxxx.xxx for
Java Software, used to capture, process and view Xxxxxx.xxx Images.
1.4 "Franchisee" means any Franchisee of the Real Estate Systems
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including the liscensed brokers and sales associates of the Franchisee.
1.5 "Real Estate Systems" means the CENTURY 21, ERA and Coldwell
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Banker real estate brokerage franchise systems.
1.6 "Franchisors" mean the franchisors of the Real Estate Systems.
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1.7 "Commencement Date" means the date on which the earlier of
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the following events occurs (i) all of the Real Estate System Web Sites are
capable and available to receive links to or postings of Xxxxxx.xxx Images and
integrating such Xxxxxx.xxx Images with listings or (ii) the Super Site is
launched, includes aggregated property listings contained on the Real Estate
System Web Sites and offers the opportunity to associate images with such
listings.
1.8 "Confidential Information" means any trade secrets,
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confidential data or 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 terms of this Agreement will constitute Confidential
Information.
1.9 "Real Estate System Web Sites" means the collection of HTML
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documents residing on servers operated by or for Company or its affiliates and
currently accessible on or after the Effective Data by Franchisees or the public
via the Internet at the following URLs: xxxx://xxx.xxxxxxxxxxxxxx.xxx:
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xxxx://xxx.xxx.xxx and xxxx://xxx.xxxxxxx00.xxx.
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1.10 "Production Services" means the services provided by or on
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behalf of xxxxxx.xxx in producing the Xxxxxx.xxx Images through the use of
Xxxxxx.xxx Technology.
1.11 "Service Provider Network" means the network of individuals
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throughout xxxxxx.xxx's service area in North America with whom xxxxxx.xxx has
entered into agreements to capture images at designated sites on xxxxxx.xxx's
behalf.
1.12 "Super Site" means the contemplated real estate Internet
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portal which may aggregate property listings contained on the Real Estate System
Web Sites.
1.13 "Term" means the Term of this as set forth in Section 6.
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1.14 "Virtual Tour Images" means any 360/0/, three dimensional or
virtual tour or virtual walkthrough utilizing images.
2. GRANT OF ACCESS TO XXXXXX.XXX
To the extent the Real Estate System Web Sites offer the opportunity
to associate Virtual Tour Images with property listings contained on any or all
of the Real Estate System Web Sites, any such listings of the Real Estate System
Web Sites for which xxxxxx.xxx provides Xxxxxx.xxx Images shall display (i.e.
link to or receive postings of) the Xxxxxx.xxx Images, on a non-exclusive basis,
on the Real Estate System Web Sites. The parties acknowledge that as of the date
of this Agreement Virtual Tour Images of such property listings on such Real
Estate System Web Sites are offered and that the parties shall cooperate with
each other in good faith in an effort to display Xxxxxx.xxx Images as provided
in the preceding sentence by November 30, 1999. Further, in the event that
Cendant or a Cendant affiliate establishes a Super Site which aggregates
property listings contained on the Real Estate System Web Sites and the Super
Site offers the opportunity to associate images with such listings, any such
listings of the Real Estate System Web Sites for which xxxxxx.xxx provides
Xxxxxx.xxx Images shall display (i.e. link to or receive postings of) the
Xxxxxx.xxx Images, on a non-exclusive basis, on the Super Site.
[*] Confidential treatment has been requested for potions of this exhibit.
The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as *****. A complete
version of this exhibit has been filed separately with the Securities
Exchange Commission.
3. BANNER AD PLACEMENT; PROVISION OF PRODUCTION SERVICES
3.1 Banner Ads. Company will place banner ads on the Super Site which
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ads shall appear on prominent web pages of the Super Site (except that no
banners shall be placed on any web pages of the Super Site which pages are
designated to or used for the purpose of joint or co-marketing activities with
parties other than xxxxxx.xxx). The parties will cooperate to establish the
precise size and placement of such banner ads. When clicked on, these banner
ads shall link directly to HTML pages hosted and designated by xxxxxx.xxx that
will focus on the promotion of xxxxxx.xxx and its products. In no event shall
such banner ads link to any web site other than HTML pages hosted and
designated by xxxxxx.xxx or shall any such banner ad links be utilized to
offer for sale, market or otherwise promote the sale of products or services
other than the Production Services. Nothing contained in this Agreement shall
entitle xxxxxx.xxx to place any banner ads on the Real Estate System Web
Sites.
3.2 Press Releases. There will be a joint press release issued, which
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the parties in good faith will endeavor to issue on July 15, 1999, approved by
both parties, which approvals shall not be unreasonably withheld, indicating
the relationship entered into by and between Company and xxxxxx.xxx under this
Agreement, but in no event later than July 21, 1999. Additionally and subject
to the prior approval of Company, not to be unreasonably withheld, xxxxxx.xxx
may (i) briefly describe the terms of this Agreement in amendments (the
"Amendments") to xxxxxx.xxx's registration statement to be filed in connection
with the sale of xxxxxx.xxx's common stock in a firm commitment underwriting
(the "Xxxxxx.xxx IPO"); provided, however, in no event shall such description
include any more information or descriptions than are (x) required by
applicable law or regulations as they relate to such Amendments or (y)
disclosed in any press release issued under this Section 3.2; and (ii) if
legal counsel for xxxxxx.xxx advises, and subject to the prior approval of
Company, not to be unreasonably withheld, attach a redacted version of this
Agreement as an exhibit to the Amendments, provided that the xxxxxx.xxx seeks
confidential treatment of this Agreement with the Securities and Exchange
Commission. 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 unreasonably. [*].
3.3 Customer Sales and Billing. Xxxxxx.xxx is responsible for and
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will manage and coordinate any and all sales of Production Services, including
by means of xxxxxx.xxx's direct sales force, to its customers. Xxxxxx.xxx will
be responsible for receiving and fulfilling orders for Production Services and
will assume all costs and responsibility for invoicing and collecting revenue
for all customer sales. Xxxxxx.xxx will maintain a full-service, live customer
call center, available seven days per week, at reasonable hours, to handle
inquires from prospective customers and customers alike.
3.4 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 designate sites through its Service Provider Network and processing
captured images to create Xxxxxx.xxx Images. Subject to Section 2 above,
Xxxxxx.xxx will provide HTML links from the Super Site and the Real Estate
System Web Sites to bamboo's servers so that users searching listings on the
Super Site or any Real Estate System Web Site will be able to view any
Xxxxxx.xxx Image associated with a listing that appears in the solution set
generated by the user's search query. Notwithstanding anything to the contrary
in this Agreement, in the event that Company, in its reasonable discretion,
determines that posting of Xxxxxx.xxx Images to the Super Site or the Real
Estate System Web Sites is preferable to linking, than, subject to Section
5.2, xxxxxx.xxx will post images to the Super Site or Real Estate Web Sites.
Company will permit linking of the Super Site and Real Estate System Web Sites
to Xxxxxx.xxx Images, or posting of Xxxxxx.xxx images to the Super Site or
Real Estate System Web Sites, as the case may be, and the parties will use
commercially reasonable efforts to work together to expeditiously implement,
and maintain throughout the Term, a system whereby xxxxxx.xxx will be capable
of linking or posting, as the case may be, to the Super Site and Real Estate
System Web Sites, subject to Section 2 above. Any Xxxxxx.xxx Images posted or
linked to the Super Site and the Reals Estate System Web Sites will fully
render within a reasonable time comparable to similar services, unless a delay
in such rendering is caused by the internet or the systems of Company or
Company affiliates.
3.5 Prominence of Promotion. A third-party provider of Virtual Tour
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Images may be able to obtain more favorable treatment than xxxxxx.xxx, online
or offline, in marketing on the Super Site and in other marketing or
promotional materials generated by Company or Company affiliates; provided
that xxxxxx.xxx will be granted a right of first refusal to participate on the
same basis. To the extent that Company or Company affiliates publish in any
media a list of vendors for the Super Site, as reasonably determined by
Company in good faith, Company may include xxxxxx.xxx in such list during the
Term.
3.6 Xxxxxx.xxx Promotion Obligations. At Company's election,
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Xxxxxx.xxx will include and display the logo of the designated Company
affiliate relating to the Super Site in any page on xxxxxx.xxx's Web site that
lists, and displays the logos of, other alliances of xxxxxx.xxx. In addition,
at the sole election of Company, xxxxxx.xxx will permit Company or a
designated Company affiliate to make a presentation at any regularity
scheduled meeting (generally, held on a quarterly basis) of Regional Directors
of xxxxxx.xxx.
3.7 Solution Set Symbol. Company shall ensure that, when a listing
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solution set queried on the Super Site or a Real Estate System Web Site
includes a listing associated with a Xxxxxx.xxx Image, there shall appear
beside the listing a generic symbol selected by Company indicating that the
listing is associated with Virtual Tour Images. In no event shall any such
symbol as may be placed on the Real Estate System Web Sites include or
identify "xxxxxx.xxx" or imply any affiliation with or to xxxxxx.xxx.
4. FEES; BANNER PURCHASES
4.1 [*] In consideration of the [*] afforded to xxxxxx.xxx in
Section 2 above, xxxxxx.xxx will pay Company a [*] in the aggregate amuont of
[*] as follows: [*] Said fee is fully earned upon payment by xxxxxx.xxx.
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[*] Confidential Treatment Requested.
4.2. Banner Purchases. In the aggregate, Xxxxxx.xxx will purchase
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from Company (or Company's affiliate as may be designated by Company) a [*]
banner ads per year over two years. [*] Xxxxxx.xxx banner ads will not exceed
5% of Super Site ad Inventory in a given month. Should the purchased banner
ads exceed 5% of Super Site Inventory, the excess ads will be applied at
subsequent period(s) when the addition of those ads to the scheduled ad buy
for the particular subsequent month does not exceed the 5% threshold;
provided, however, that the deferral of such ads will in no way modify the
timing or amount of monthly payments provided for in the first sentence of
this Section 4.2.
5. PROPRIETARY RIGHTS
5.1 Xxxxxx.xxx Images.
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(a) All Xxxxxx.xxx Technology, including without
limitation all Xxxxxx.xxx Images are, and at all times will remain, the
exclusive property of xxxxxx.xxx, and no provision of this Agreement implies
any transfer to Company or Company affiliates of any ownership interest in any
Xxxxxx.xxx Technology.
(b) Xxxxxx.xxx hereby grants to Company or the designated
Company affiliate a nonexclusive, worldwide, royalty-free, non-transferable
license to include on the Super Site and Real Estate System Web Sites links to
Xxxxxx.xxx Images on xxxxxx.xxx's server solely for the purposes contemplated
in this Agreement. Except with respect to designated Company affiliates, the
foregoing license does not include any right to grant or authorize
sublicenses. In the event that Company requires xxxxxx.xxx to post the
Xxxxxx.xxx Images to the Super Site and the Real Estate System Web Sites,
xxxxxx.xxx grants Company and/or designated Company affiliates the licenses
set forth in Exhibit A attached hereto.
5.2 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 designated the Production Services (collectively, the "Xxxxxx.xxx
Marks"), and Company will not take any actions inconsistent with xxxxxx.xxx's
ownership rights.
(b) Xxxxxx.xxx specifically acknowledges that this
Agreement does not confer upon xxxxxx.xxx any interest in or right to use any
trademark, service xxxx or other intellectual property right of Company or any
Company affiliate (collectively referred to as the "Company Marks") in
connection with Agreement unless xxxxxx.xxx receives the prior written consent
of Company which consent Company may grant or withhold in its sole discretion;
provided, however, that, subject to the prior approval of Company, not to be
unreasonably withheld, xxxxxx.xxx may include the logos of the Real Estate
Systems in the amendments to the registration statement filed in connection
with xxxxxx.xxx's IPO. Xxxxxx.xxx further agrees that upon termination of this
Agreement, xxxxxx.xxx shall immediately cease and discontinue all use of the
Company Marks, including the Super Site Marks. Further, if Xxxxxx.xxx wishes
to utilize the Company Marks in advertising or promotional materials, it must
submit such materials to Company for final approval before utilizing them. In
no event may Xxxxxx.xxx or any affiliated or associated person or entity
utilize the Company Marks in connection with any products or services other
than the Production Services as contemplated in the Agreement. Xxxxxx.xxx
further acknowledges that this Agreement does not create or grant any rights
in xxxxxx.xxx to use any intellectual property rights owned or controlled by
any Franchisee or its affiliates, not does Company have any right to grant any
such rights.
(c) Subject to the restrictions set forth herein, the
parties contemplate that xxxxxx.xxx shall have the right to use the logo of the
designated Company affiliate relating to Super Site, if any, subject to the
consent of Company or such Company affiliate in its sole discretion.
(d) Subject to the restrictions set fort herein, xxxxxx.xxx
hereby grants Company and designated Company affiliates a nonexclusive,
worldwide, royalty-free, fully paid up, non-transferable right to use the
Xxxxxx.xxx Marks, during the Term, with xxxxxx.xxx's prior written approval,
which xxxxxx.xxx will not unreasonably withhold, solely in connection with
Section 3.1 above.
(e) Further, subject to the restrictions set forth herein,
each party only use the Xxxxxx.xxx Marks or Company Marks, as the case maybe, as
expressly permitted herein and agrees to use such marks in a manner
commensurate with the style, appearance and quality of the other party's
services and/or products bearing such marks. Notwithstanding anything contained
in this Agreement to the contrary in no event shall xxxxxx.xxx use the Company
Marks to indicate that xxxxxx.xxx has the right to include Xxxxxx.xxx Images on
the Real Estate System Web Site or that, except with respect to the banner
purchases for the Super Site provided for in Section 3.1 or access to Xxxxxx.xxx
Images provided for in Section 2, Xxxxxx.xxx entered into or maintains any
marketing or promotion arrangement with Company or Company affiliates to be
marketed or promoted to the Franchisees of the Real Estate Systems or any other
brand or franchised system of Cendant or a Cendant affiliate.
6. TERM AND TERMINATION
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6.1 Term. Unless earlier terminated as set forth below, this
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Agreement will become effective upon the Effective Date and shall continue for
a period of two (2) years from the Commencement Date; provided, however, that,
in the event that the event described in Section 1.7(D) does not occur within
two (2) years from the Commencement Date, this Agreement shall terminate three
(3) years and three (3) months after the Effective Date. Notwithstanding
anything contained in this Agreement to the contrary, the Term will be
automatically extended to the extent required to expend all of the purchased
banner ads consistent with the 5% Inventory limitation described above in
Section 4.2; provided, however, that no such extension shall be provided if
this Agreement is terminated by Company pursuant to Section 6.2 below. In no
event will the Term extend beyond three (3) years and three (3) months from
the Effective Date.
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[*] Confidential Treatment Requested.
6.2 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 undertaking hereunder, and fails to remedy such
default within sixty (60) days (ten (10) days in the event of a payment
default) after being notified by the non-breaching party of such breach or
failure. Without regard to the foregoing, Company may terminate this Agreement
immediately and without liability in the event that Xxxxxx.xxx [*] except with
respect to the banner purchases for the Super Site provided for in Section 3.1
or access to Xxxxxx.xxx images provided for in Section 2.
6.3 Survival Of Certain Terms. The provisions of Section 5.1 (a),
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5.2 (a) and (b), 6.1, 6.3, 7,8,9,10 and Sections (c) and (e)- (h) of Exhibit A
will survive the expiration or termination of this Agreement for any reason.
All other rights and obligation 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 Technology and will purge all such Xxxxxx.xxx Technology
from its servers,systems and products.
7. 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.
8. REPRESENTATIONS AND WARRANTIES
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8.1 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 or constitute a violation of any
applicable law or regulation.
8.2 Xxxxxx.xxx represents and warrants that (i) xxxxxx.xxx has all
necessary rights, permissions and authorizations to use and permit Company
and/or Company affiliates to use Xxxxxx.xxx Technology as contemplated by this
Agreement; (ii) neither Xxxxxx.xxx Technology nor Company's or Company
affiliates' use thereof as contemplated under this Agreement does or will
violate any proprietary intellectual property rights of any third party; and
(iii) Xxxxxx.xxx Technology shall to the extent provided to and utilized by
Company or Company affiliates conform, without cost to Company or Company
affiliates, to the reasonable applicable specifications and meet the
reasonable performance and technical standards as required or developed by
Company to install, implement and operate Xxxxxx.xxx Technology for the
purpose of accessing or viewing Xxxxxx.xxx images with respect to the Super
Site and the Real Estate System Web Sites as contemplated under this
Agreement.
8.3 Xxxxxx.xxx warrants that the system (including any software
technology) leased or owned by xxxxxx.xxx in connection with the provision and
operation of Xxxxxx.xxx Technology, Xxxxxx.xxx Images and/or the Production
Services include or shall include, at no additional cost to Company, design
and performance so that Company shall not experience abnormally ending and/or
invalid and/or incorrect results by or through the use of the systems not
attributable to the internet or the systems of Company or Company affiliates.
Futhermore, xxxxxx.xxx represents and warrants that subject to the proper
functioning of the systems of Company or Company affiliates, such systems will,
under normal use and service record, store, process and present calendar
dates falling on or after January 1, 2000, in the same manner and with the
same functionality, data integrity and performance, as the systems record,
store, process and present on or before December 31, 1999. Xxxxxx.xxx warrants
that, subject to the proper functioning of the systems of Company or Company
affiliates, the systems will lose no functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000.
8.4 Without limiting any of the rights and remedies available to Company
under this Agreement or at law or equity, in the event of a breach of the
representations and warranties under sections 8.2 and 8.3 above, Xxxxxx.xxx
shall use its best efforts to correct such defect or non-compliance, at no cost
to Company or Company affiliates, upon receipt of written notification of such
defect or non-compliance from Company.
8.5 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE WARRANTIES
PROVIDED BY THE PARTIES UNDER THIS SECTION 8 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. INDEMNITY & LIMITATION OF LIABILITY
9.1 Indemnity. Xxxxxx.xxx will indemnify, defend and hold Company
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and Company affiliates harmless from and against any and all claims, actions,
liabilities, demands, damages, costs, and expenses (including reasonable
attorneys' fees and disbursements) arising from or relating to any claims of
the following nature, to the extent caused by Xxxxxx.xxx: (i) any actual or
alleged violation of the right of privacy, right of publicity or similar
rights of any third party; (ii) any actual or alleged violation of the
intellectual property rights of any third party in connection with Xxxxxx.xxx
Technology, Xxxxxx.xxx Images, the Production Services, and Xxxxxx.xxx Marks
or any part thereof; (iii) any claim relating to an end-user's or customer's
use of Xxxxxx.xxx Images or the Production Services and (iv) any claim arising
out of the marketing or promotion of Xxxxxx.xxx, Xxxxxx.xxx Images and/or the
Production Services to the Franchisees of the Real Estate Systems as a
preferred alliance or under any other affiliation with Company or Company
affiliates, except with respect to the banner purchases for the Super Site
provided for in Section 3.1 or access to Xxxxxx.xxx Images provided for in
Section 2.
9.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE
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LIABLE TO THE OTHER PARTY 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. THE LIMITATION
OF LIABILITY PROVIDED IN THIS SECTION 9.2 SHALL NOT APPLY WITH RESPECT TO (i)
THIRD PARTY CLAIMS AND/OR (ii) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A
PARTY.
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[*] Confidential Treatment Requested.
10. GENERAL PROVISIONS
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10.1 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.
10.2 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
New York 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 Company may assign this
Agreement or assign or delegate its rights and obligations under this Agreement
to an affiliate or in connection with 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.
10.3 Acknowledgments. Xxxxxx.xxx acknowledges and understands that
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Company has entered into and maintains as of the date of this Agreement a
preferred alliance agreement ("Preferred Alliance Agreement") with a provider
(the "Preferred Alliance") of panoramic imaging services (in the capacity of a
supplier of such services) under which Preferred Alliance Agreement the
Franchisors of the Real Estate Systems, among other Company affiliates,
recommend, on an exclusive basis, such provider (including the panoramic
imaging services) to the Franchisees of the Real Estate Systems, Xxxxxx.xxx
acknowledges and agrees that in no event shall this Agreement be deemed to:
(i) require or commit Company or the Franchisors to recommend, market or
promote Xxxxxx.xxx, Xxxxxx.xxx Images or the Production services to the
Franchisees of the Real Estate Systems in any matter whatsoever, and (ii)
grant to Xxxxxx.xxx any right or authority to market or promote Xxxxxx.xxx,
Xxxxxx.xxx Images and/or the Production Services to any Franchisees of the
Real Estate Systems as a preferred alliance, approved vendor or supplier or
under any other affiliation with Company or Company affiliates, except with
respect to the banner purchases for the Super Site provided for in Section 3.1
or access to Xxxxxx.xxx Images provided for in Section 2.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX.XXX, INC. CENDANT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx By: /s/ SIGNATURE ILLEGIBLE
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Name: Xxxxxx X. Xxxxxx Name: /s/ SIGNATURE ILLEGIBLE
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Title:SVP, Business Development Title: Vice President - Business
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Development
Date: July 15, 1999 Date: 7/15/99
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EXHIBIT A
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POSTING LICENSES
In the event that Company or a designated Company affiliate requires
xxxxxx.xxx to post the Xxxxxx.xxx Images to the Super Site and the Real Estate
System Web Sites:
(a) Xxxxxx.xxx grants to Company a nonexclusive, worldwide,
royalty-free, nontransferable license to display, perform and reproduce on the
Super Site, and Real Estate System Web Sites, each Xxxxxx.xxx Image that is
posted to such sites during the Term, solely for the purposes contemplated in
this Agreement. Company and designated Company affiliates will not distribute,
modify, edit, or prepare derivative works from the Xxxxxx.xxx Images without the
prior written permission of xxxxxx.xxx. Except with respect to the designated
Company affiliates, the foregoing license does not include any right to grant or
authorize sublicenses.
(b) Xxxxxx.xxx further grants to Company a nonexclusive, worldwide,
royalty-free license to use the Xxxxxx.xxx for Java Software, in object code
only, to display on the Super Site and Real Estate System Web Sites Xxxxxx.xxx
images licensed above. "Use" means storing, loading, installing, executing or
displaying the Xxxxxx.xxx for Java Software. Company and designated Company
affiliates may not modify the Xxxxxx.xxx for Java Software or disable any
licensing or control features of the Xxxxxx.xxx for Java Software. Except with
respect to the designated Company affiliates, the foregoing license does not
include any right to grant or authorize sublicenses.
(c) The Xxxxxx.xxx for Java Software is owned and copyrighted by
xxxxxx.xxx. The license set forth herein confers no life 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.
(d) Company and designated Company affiliates may only make copies or
adaptations of the Xxxxxx.xxx for Java Software for archival purposes or when
copying or adaptation is an essential step in the authorized use of the
Xxxxxx.xxx for Java Software. Company and designated Company affiliates must
reproduce all copyright notices in the original Xxxxxx.xxx for Java Software on
all copies or adaptions. Company and designated Company affiliates may only
transfer class files when they are called on by a "requesting" server in the
normal course of Java Applet execution. Company and designated Company
affiliates may not distribute the Xxxxxx.xxx for Java Class files. Any transfer
or copying of the Xxxxxx.xxx for Java Software by Company or designated Company
affiliates other than as expressly provided herein constitutes a material breach
of this Agreement.
(e) Company and designated Company affiliates may only use the
Xxxxxx.xxx for Java Software to read .jut files, a file format proprietary to
xxxxxx.xxx.
(f) Company and designated Company affiliates will not disassemble or
decompile the Xxxxxx.xxx for Java Software including single Xxxxxx.xxx for Java
Class files under any circumstances. The disassembly or decryption by Company or
designated Company affiliates of any Xxxxxx.xxx for Java Class file constitutes
a material breach of this Agreement.
(g) Company and designated Company affiliates will not export or
re-export any 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 any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct. 1988), DFARS 252.211-7015 (May 1991) or DFARS 282.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101 (a), or "Restricted
computer software" as defind in FAR 52.227-19 (Jun 1987)(or any equivalent
existing or superseding agency regulation or contract clause), whichever is
applicable. Company has only those rights provided for such Xxxxxx.xxx for Java
Software and any accompanying documentation by the applicable FAR or DFARS
clause or agreement between Company and xxxxxx.xxx.
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