EXHIBIT 10.9
HOMESCOUT PROMOTION AGREEMENT
This HOMESCOUT PROMOTION AGREEMENT (the "Agreement") is made as of November
1, 1999 (the "Effective Date") by and between iOwn, Inc. ("iOwn"), a California
corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇.▇▇▇, LLC, a Delaware limited liability
company, with its principal place of business located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Partner").
WHEREAS, iOwn is the owner and operator of a Web site that provides home
buying related products, services and content, including a searchable database
of real estate for sale by various partners known as the "HomeScout" service (as
described further herein); and
WHEREAS Partner operates a variety of Web properties and real estate-
related Web services, including a series of Web Site products upon which real
estate professionals may list real estate for sale and other information about
themselves; and
WHEREAS, the parties desire that iOwn promote real estate listings from
Partner's Web Site products within HomeScout as provided further herein;
NOW, THEREFORE, in consideration of the mutual consideration, promises,
representations, and covenants set forth herein, the receipt and sufficiency of
which are hereby acknowledged, iOwn and Partner agree as follows:
1. Definitions.
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(a) "Customer" means a real estate professional client of Partner, for
whom Partner provides Web site products upon which the client may list
real estate for sale and other information about themselves; Customers
include both individual real estate professionals promoting themselves
as individuals ("Agent Customers"), and brokers representing an office
of real estate professionals, promoting themselves together ("Broker
Customers').
(b) "Customer Listings Data" means information relating to real estate
listed for sale, which is available for view on a Customer's web site,
as provided or hosted by Partner.
(c) "HomeScout" means a Web-based service provided by iOwn consisting of a
database of real estate for sale which can be searched in response to
user queries, and which displays a summary results page ("Results
Page"), in response to such queries, which contains a summary if the
relevant real estate listings promoted within HomeScout, and which
also contains Links to the Web Sites of real estate professionals
hosting the listed property (the "Listings Detail Page"). iOwn may
modify the HomeScout service at any time in its sole discretion.
(d) "HomeScout Data Standards" means the set of data fields that summarize
Customer Listings Data which are transmitted to iOwn by Partner, in
order to promote Partner's Customers' Web Sites within HomeScout,
which data fields are further defined, including minimum required and
optional fields, as well as data cleanliness requirements therefor, in
Exhibit B hereto, and as iOwn may change from time to time in its
reasonable discretion.
(e) "HomeScout Data Transmission Standards" shall mean those procedures
and standards for Partner's transmission of the Customer Listings Data
to iOwn, as set forth in Exhibit C herein, and as iOwn may change from
time to time in its reasonable discretion.
(f) "HomeScout Minimum Data Set" means the minimum set of data fields and
cleanliness levels within the HomeScout Data Standards which must be
transmitted to iOwn in connection with promoting such Customer
Listings Data within HomeScout, as further defined in Exhibit B
hereto, and as iOwn may change for time to time in its reasonable
discretion.
(g) "iOwn Web Site" means the Web Site owned and maintained by iOwn that
is currently located at the URL ▇▇▇.▇▇▇▇.▇▇▇ and all successors.
(h) "Link" means the hypertext graphic and/or textual link that may be
initiated by clicking an icon, logo, button, image or text to
establish a direct connection to a different page of a Web Site or to
a different Web Site.
(i) "Member Access Panel" means that portion of the customers web site
which is used by the agent or broker to sign into, modify, or adjust
their site.
(j) "Partner Promotional Fee" means the fees set forth in Section 4
herein, which iOwn shall charge to Partner for promotion of Partner's
Customers Web Sites within HomeScout.
(k) "Partner Marks" means Partner's trademarks, service marks, trade
names, trade dress, logos, look and feel or other indicia of source.
(l) "Web Site" means a World Wide Web site on the Internet.
2. Partner Duties.
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(a) Promotion of HomeScout to Customers. Partner will use commercially
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reasonable efforts to promote the HomeScout service to its Customers.
Without limitation to the foregoing, Partner will integrate as a
default portion of Partner's standard Member Access Panel, a "Click
Agreement", authorizing the promotion of each Customer's Web Site
and Customer Listings Data within HomeScout. Such Click Agreement
shall require the Customer to manually opt out if they do
not desire to be promoted within HomeScout. If more than one
promotional option exists within the Member Access Panel, then
HomeScout shall be the first such click agreement that is offered to
the customer.
(b) Form of Consent. Partner shall submit its proposed form of consent
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described in 2(a) above to iOwn for approval. iOwn shall work with
Partner to decide on mutually agreeable contract language, as
indicated by iOwn's written approval. Once so approved, the consent
language will be attached hereto as Exhibit E. iOwn's standard form
of permission is attached hereto as Exhibit A, as an example to
Partner. Partner will obtain such consent from all Customers prior to
sending any such Customers' Listings Data to iOwn for inclusion within
the HomeScout service.
(c) Data Transmission. For all Customers who do not opt out of promotion
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within HomeScout, Partner will provide iOwn with such Customers'
Customer Listings Data as follows:
(i) Nature of the Data. Partner will use commercially reasonable
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efforts to maintain the HomeScout Data Standards for Customer
Listing Data, as set forth in Exhibit B, but in no event will
fail to maintain the HomeScout Minimum Data Set set forth
therein.
(ii) Method of Transmission. Partner will send Customer Listing Data
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(pursuant to the standards of Section 2(b)(i)) to iOwn in
accordance with the HomeScout Data Transmission Standards set
forth in Exhibit C.
(iii) Updates. Partner will transmit any change in any Customer
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Listing Data to iOwn pursuant to the HomeScout Data
Transmission Standards as soon as commercially reasonable (but
in no case more than 24 hours, and no less frequently than once
per week) after Partner's receipt of such change.
(d) Data Inaccuracies. Partner will be solely responsible for Partner's
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failure to transmit Customer Listing Data accurately or otherwise in
accordance herewith. UNDER NO CIRCUMSTANCES WILL iOwn BE LIABLE IN
ANY WAY FOR ANY ERRORS, INACCURACIES, FAILURES BY PARTNER TO TRANSMIT
(TIMELY OR OTHERWISE) CUSTOMER LISTING DATA AND PARTNER AGREES THAT IT
WILL BE SOLELY RESPONSIBLE FOR SUCH LIABILITY.
3. iOwn Duties.
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(a) iOwn will use commercially reasonable efforts to include all Customer
Listing Data transmitted in accordance with Section 2 above within the
HomeScout service.
(b) iOwn will use commercially reasonable efforts to host and maintain the
HomeScout service, and to increase usage of the HomeScout service over
time.
(c) iOwn will use a portion of such compensation paid by Partner hereunder
for promotion and marketing to increase usage of the HomeScout
Service.
4. Fees; Payment.
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(a) Fees For Agent Customer Listings. For each Agent Customer for whom
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Customer Listing Data is transmitted to iOwn pursuant to Section 2,
iOwn will invoice Partner as follows: [*] during which, such Agent's
Customer Listing Data is promoted within HomeScout.
(b) Fees For Broker Customer Listings. For each Broker Customer for whom
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Customer Listing Data is transmitted to iOwn pursuant to Section 2,
iOwn will invoice Partner as follows: [*] during which such Broker
Customer Listing Data is promoted within HomeScout.
(c) Invoices. [*] iOwn will calculate the number of each type of
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Customers with Customer Listings Data promoted within HomeScout and
will invoice Partner the corresponding fees as set forth in this
Section 4. However, in any case, the [*].
(d) Payment of Invoices. Partner shall pay all invoices from iOwn within
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thirty (30) days of the date of such invoices. All fees not paid
within thirty (30) days of when such fees become due shall be subject
to a finance charge of one and one half percent (1.5%) per month
simple interest, with such interest charges starting on the due date
for such fees.
(e) Taxes. Partner shall be solely responsible for the payment of any and
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all sales, use, value-added, or similar taxes that may accrue in
connection with the promotion of Customer Listing Data within
HomeScout. Each party shall be responsible for any taxes based on
their respective income.
5. Term. This Agreement will become effective as of the Effective Date and
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shall remain in effect for the Initial Term, and after the Initial Term
this Agreement shall be automatically extended for successive Renewal
Terms, unless either party provides notice of termination at least sixty
(60) calendar days prior to the end of the Initial Term or
[*] Confidential Treatment Requested
Renewal Term, as the case may be, or unless this Agreement is otherwise
terminated as provided in the Standard Terms and Conditions.
Initial Term: [*]
Renewal Term: [*]
6. Standard Terms and Conditions. This Agreement will be governed by iOwn's
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Standard Terms and Conditions set forth in Exhibit D hereto ("Standard
Terms and Conditions").
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
iOWN, INC. ▇▇▇▇▇.▇▇▇, LLC
By:_______________________________ By:_________________________________
Name: ▇▇▇ ▇▇▇▇ Name:_______________________________
Title: Chief Executive Officer Title:______________________________
Address: Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[*] Confidential Treatment Requested
EXHIBIT A
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Form of Permission
COOPERATIVE MARKETING AGREEMENT
iOwn, Inc. owns and operates a web site located primarily at ▇▇▇.▇▇▇▇.▇▇▇,
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which provides educational and mortgage brokerage services to homebuyers and
includes and Internet Real Estate marketing service known as HomeScout(R)
located primarily but not exclusively at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇.
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________________________ wishes to increase homebuyer traffic to its web
site and online listings by participating in HomeScout and establishing non-
exclusive linking to property listings on its web site.
WHAT WE WILL DO FOR YOU
HomeScout(R) will provide you with [*] to your web site and your
listings by direction homebuyers to your site.
In response to a user query, HomeScout(R) will generate summary results
from the summary data you provide. Each summary listing generated by a user
search will include a link to a detailed listing located on your web site.
ALL WE NEED FROM YOU
Provide HomeScout(R) with a tab-delimited text file with a summary of your
listing data using HomeScout's preferred format. Details are located at
[*]
Regular updates ____ times per week.
OWNERSHIP & RESPONSIBILITIES
You retain all right, title and interest in and to the intellectual
property of your web sites, data collected and any products and services on your
web site. Nothing in this agreement entities iOwn, Inc. to any ownership in or
exclusivity of access to the detailed listing on your web site.
You agree to accept responsibility for the summary data provided to us and
iOwn, Inc. agrees to accept responsibility for accurately displaying the data
provided.
[*] Confidential Treatment Requested
EXHIBIT B
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Data Standards
Partner will insure that all Customer Listing Data is in accordance with the
format and cleanliness standards provided by iOwn (and modified by iOwn from
time to time) as set forth at the following URL:
[*]
[*] Confidential Treatment Requested
EXHIBIT C
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Data Transmission Standards
Partner will transmit Customer Listing Data in accordance with the standards
provided by iOwn (and modified by iOwn from time to time) as set forth at the
following URL:
[*]
EXHIBIT D
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Standard Terms and Conditions
1. Licenses
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(a) License Grant by Partner. Partner hereby grants to iOwn a
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nonexclusive, royalty-free right to: (a) use, reproduce, publicly
display, publish, and transmit electronically Partner's and Customers'
text, data, information, graphics or other materials provided by
Partner hereunder to iOwn for use in connection with iOwn's
obligations hereunder ("Partner Content"), in whole or in part, on or
in connection with iOwn; (b) use, reproduce, publicly display and
transmit electronically Partner's or Customers' trademarks, service
marks, trade names, logos or other source identifiers (collectively,
the "Partner Marks") as necessary to meet iOwn's obligations hereunder
and subject to the guidelines set forth in Section 1(c) ("Use of
Marks") below. Except as provided for herein, Partner reserves all
right, title, and interest in and to Partner's Web Site, the Partner
Content and the Partner Marks, along with any intellectual property
rights associated with any of the foregoing, and no title to or
ownership of any of the foregoing is transferred to iOwn or any other
entity or person under this Agreement.
(b) License Grant by iOwn. iOwn hereby grants to Partner a nonexclusive,
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royalty-free right to use, reproduce, publicly display and transmit
electronically iOwn's trademarks, service marks, trade names, logos or
other source identifiers provided by iOwn (collectively, the "▇▇▇▇
▇▇▇▇▇") at necessary to meet Partner's promotional obligations
hereunder and subject to the guidelines set forth in Section 1(c)
("Use of Marks") below. Except as provided for herein, iOwn reserves
all right, title, and interest in and to the iOwn Web Site, the iOwn
Content and the ▇▇▇▇ ▇▇▇▇▇, along with any intellectual property
rights associated with any of the forgoing, and no title to or
ownership of any of the foregoing is transferred to Partner or any
other entity or person under this Agreement.
(c) Use of Marks. Partner will not use or exploit any of the ▇▇▇▇ ▇▇▇▇▇,
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and iOwn will not use or exploit any of the Partner Marks, except in
such form as the other Party may consent to, which consent will not be
unreasonably withheld or delayed. Each Party's use of the other
Party's trademarks pursuant to the licenses set forth above shall be
in accordance with such other Party's reasonable policies regarding
use of its trademarks as may be established from time to time. Neither
Party shall use the other Party's trademarks in a manner that
disparages the other Party or its products or services, or portrays
the other Party in a false, competitively adverse or poor light.
(d) Notices. Each party agrees to display mutually agreeable trademark
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and copyright notices or legends of the other party when using such
other party's Marks. Each party shall in advance submit to the other
party the proposed placement of such notices or legends (including,
without limitation, the place and manner of incorporation into
electronic media or transmissions), and such other party shall have
the right, acting reasonably, to approve the same.
2. Public Announcements. Any public announcements relating to this Agreement
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will be subject to the parties' mutual written approval. All such
announcements will include a reasonably prominent reference to iOwn and
Partner.
3. Termination.
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(a) Early Termination. This Agreement may be terminated at any time by
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either party, effective immediately upon notice, if the other party:
(a) becomes insolvent; (b) files a petition in bankruptcy or (c) makes
an assignment for the benefit of its creditors. Either party may
terminate the Agreement, effective upon thirty (30) days written
notice, in the event that the other party breaches any of its
responsibilities or obligations under the Agreement in any material
respect (including, without limitation, failure to pay) which breach
is not remedied within thirty (30) days following written notice to
such party.
(b) Effect of Termination. The provisions in the Sections of
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Confidentiality, Indemnification, Limitation of Liability,
Representation and Warranties, and Miscellaneous, and the terms on the
Licenses Section regarding ownership, of these Standard Terms and
Conditions shall survive any termination or expiration of the
Agreement.
4. Confidentiality. iOwn and Partner hereby acknowledge that in, the course
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of activities under this Agreement each of them may have access to
confidential and proprietary information which relates to the other party's
technology, marketing and business (the "Confidential Information"). Each
party agrees to preserve and protect the confidentiality of the
Confidential Information and to not use except as provided for under the
terms of this Agreement or to disclose, or distribute to any third party
Confidential Information without the prior written consent of the other
party; provided, however, that any party hereto may disclose to any other
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party any information which receiving party demonstrates: (i) is or becomes
generally known or available by publication, commercial use, or otherwise
through no fault of a party; (ii) is discovered or created by the receiving
party without reference to the Confidential Information, as shown in
records of such party; or (iii) is lawfully obtained from a third party who
has the right to make such disclosure; (iv) is released for publication by
the other, (v) is required to be disclosed by a valid court order, or (vi)
otherwise learned through legitimate means, other than from a third party
under confidentiality obligations. Each party agrees for the Term of this
Agreement and for a period of five (5) years thereafter to protect the
confidentiality of the Confidential Information and to not use or disclose
any Confidential Information to third
parties. Without limiting the scope of the duty, the parties agree to limit
their internal distribution of Confidential Information to their board of
directors, employees, and agents, and to take reasonable steps to ensure
that the dissemination is so limited. The actions or negligence of the
parties, directors, employees, or agents shall be deemed to be the actions
or negligence of the respective party, with regard to the Confidential
Information of the other party. Moreover, any party hereto may disclose any
Confidential Information hereunder to such party's agents, attorneys and
other representatives or any court of competent jurisdiction or any other
party empowered hereunder as reasonably required to resolve any dispute
between the parties hereto.
5. Indemnification.
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(a) Indemnification by iOwn. iOwn, at its own expense, will indemnify,
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defend and hold harmless Partner, and its employees, representatives
and agents, against any claim, suit, action, or other proceeding
brought against Partner or such party by a third party, to the extent
that such claim, suit, action or other proceeding is based on or
arises from:
(i) any final adjudication that the use of the HomeScout service
in accordance with this Agreement (other than by reason of
any Partner Brand Features, Partner Content or other items
or materials supplied by Partner) infringes any Intellectual
Property Right of any third party, or any right of
personality or publicity, is libelous or defamatory, or
otherwise has resulted in actionable injury or damage to any
third party; or
(ii) any misrepresentation or breach of representation or
warranty of iOwn contained herein.
iOwn will pay all costs, damages, and expenses, including, but not
limited to, reasonable attorneys' fees and costs awarded as a result of
final adjudication against or otherwise incurred by Partner in connection
with or arising from any such claim, suit, action or proceeding
attributable to any such claim.
Notwithstanding the above, iOwn shall not be liable for any claim,
suit, action or other proceeding that is based on or arises as a result of
any software, content, materials or services provided to iOwn by a third
party, except and only to the extent that iOwn is actually indemnified by
the third party content provider for the same.
(b) Indemnification by Partner. Partner, at its own expense, will
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indemnify, defend and hold harmless iOwn, and its employees,
representatives and agents, against any claim, suit, action, or other
proceeding brought against iOwn or such party by a third party, to the
extent that such claim, suit, action or other proceeding is based on
or arises from:
(i) any final adjudication that the use of any Partner Brand
Features, Partner Content (including without limitation Customer
Listing Data) or other items or materials supplied by Partner in
accordance with this Agreement infringes any Intellectual
Property Right of any third party, or any right of personality or
publicity, is libelous or defamatory, or otherwise has resulted
in actionable injury or damage to any third party; or
(ii) any misrepresentation or breach of representation or
warranty of Partner contained herein.
Partner will pay all costs, damages, and expenses, including,
but not limited to, reasonable attorneys' fees and costs finally
awarded against or otherwise incurred by iOwn in connection with or
arising from any such claim, suit, action or proceeding attributable
to any such claim.
(c) Procedures. Each party's obligation to indemnify the other hereunder
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shall be conditioned upon (v) the indemnified party providing the
indemnifying party with prompt written notice of any claim that could
lead to a claim for, indemnification; (w) the indemnified party
permitting the indemnifying party to assume and control the defense of
such action, with counsel chosen by the indemnifying party, who shall
be reasonably acceptable to the indemnified party; (x) the indemnified
party will have the right to participate in any defense of such claim
and/or be represented by counsel of its own choosing at its expense;
(y) the indemnifying party will not settle any claim or action of the
claiming party's behalf without the claiming party's prior written
permission, and in the event the parties agree to settle a claim or
action, the indemnifying party agrees not to disclose the settlement
or to permit the opposing party to disclose the settlement without
fast obtaining the claiming party's written permission; and (z) the
indemnified party not entering into any settlement or compromise of
any such claim without the indemnifying party's prior written consent.
In the event the indemnified party enters into any settlement or
compromise of any such claim without the indemnifying party's prior
written consent, then the indemnifying party shall have no obligation,
financial or otherwise for any such settlement or compromise so
effected.
6. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, iOwn
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PROVIDES THE HOMESCOUT SERVICE "AS IS" AND iOwn DISCLAIMS ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE
OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, iOwn DOES NOT WARRANT THAT THE HOMESCOUT SERVICE WILL BE
FREE FROM BUGS, DEFECTS OR ERRORS, OR THAT THE HOMESCOUT SERVICE WELL BE
ACCESSIBLE WITHOUT
INTERRUPTION. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF, SUCH
DAMAGES, ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO
EVENT SHALL iOwn's LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS
PAID TO iOwn BY PARTNER HEREUNDER.
7. Representation and Warranties.
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(a) Each Party to this Agreement represents and warrants to the other
Party that: (a) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts
required of it hereunder; (b) such Party has, or shall license or
acquire, all rights necessary to perform its obligations hereunder,
(c) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do
not and will not violate any agreement to which such Party is a party
or by which it is otherwise bound.
(b) iOwn represents and warrants that the ▇▇▇▇ ▇▇▇▇▇ and iOwn Content will
not infringe a third party's copyright or trademark and will not
misappropriate a third party's trade secret.
(c) HC represents and warrants that the HC ▇▇▇▇ and HC Content will not
infringe a third party's copyright or trademark and will not
misappropriate a third party's trade secret.
8. Miscellaneous.
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(a) Amendments and Waivers. Any term of this Agreement may be amended or
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waived only with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected
in accordance with this Section 12.1 shall be binding upon the parties
and their respective successors and assigns.
(b) Successors and Assigns. Neither party may assign this Agreement, in
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whole or in part, without the other party's written consent; provided,
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however, that iOwn may assign this Agreement without such consent in
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connection with any merger, consolidation, any sale of all or
substantially all of iOwn's assets or any other transaction in which
more than fifty percent (50%) of iOwn's voting securities are
transferred, subject to all of the terms of this Agreement. Any
attempt to assign this Agreement other than in accordance, with this
provision shall be null and void.
(c) Governing Law. This Agreement and all acts and transactions pursuant
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hereto and the rights and obligations of the parties hereto shall be
governed, construed
and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law
provision or rule (whether of the State of California or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California. Partner hereby
consents to the personal jurisdiction of California, acknowledges that
venue is proper in any state or federal court in California, and
waives any objection that it has or may have in the future with
respect to any of the foregoing.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement
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are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Notices. Any notice required or permitted by this Agreement shall be
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in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service, or forty-eight
(48) hours after being deposited in the regular mail as certified
registered mail with postage prepaid, if such notice is addressed to
the party to be, notified at such party's address as set forth in the
Agreement.
(f) Severability. If one or more provisions of this Agreement are held to
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be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith, in order to maintain the
economic position enjoyed by each party as close as possible to that
under the provision rendered unenforceable. In the event that the
parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(g) Entire Agreement. This Agreement is the product of both of the
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parties hereto, and constitutes the entire agreement between such
parties pertaining to the subject matter hereof, and merges all prior
negotiations and drafts of the parties with regard to the transactions
contemplated by this Agreement. Any and all other written or oral
agreements existing between the parties hereto regarding such
transactions are expressly canceled.
(h) Arbitration. Any dispute or claim arising out of or in connection
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with this Agreement will be settled by arbitration in San Francisco,
California in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association by three arbitrators
appointed in accordance with said rules. Each party shall select one
such arbitrator, and the two arbitrators so chosen shall select the
third arbitrator. The arbitrators shall apply California law, without
reference to rules of conflicts of law or rules of statutory
arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the
foregoing, the parties may apply to any court of competent
jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision.
(i) Advice of Legal Counsel. Each party acknowledges and represents that,
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in executing this Agreement, it has had the opportunity to seek advice
as to its legal rights from legal counsel and that the person signing
on its behalf has read and understood all of the terms and provisions
of this Agreement. This Agreement shall not be construed against any
party by reason of the drafting or preparation thereof.
(j) No Partnership Implied; Future Business Activity. Neither this
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Agreement nor any terms and conditions contained herein may be
construed as creating or constituting a Partnership, joint venture or
agency relationship between the parties. This Agreement shall not
limit either party's present or future business activities of any
nature, including business activities which could be competitive with
the other party, except to the extent such activities would involve a
breach of (a) the confidentiality provisions of Section 8 above or (b)
any other express provision of this Agreement.
(k) Taxes. Each party shall pay all taxes, assessments, duties, tariffs,
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imposts, permits and fees however designated, which are levied upon it
and related to its performance of its obligations or exercise of its
rights under this Agreement. In no event shall one party be
responsible for any taxes levied against the other party's net income.
(1) Attorney Fees. The prevailing Party in any dispute hereunder shall be
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entitled to recover from the other Party its costs, expenses and
reasonable attorneys' fees (including any fees for expert witnesses,
paralegals or other legal service providers).
EXHIBIT E
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Approved Consent Language
PREFERRED PROVIDER AGREEMENT
This PREFERRED PROVIDER AGREEMENT (the "Agreement") is made as of November
1, 1999 (the "Effective Date") by and between iOwn, Inc. ("iOwn"), a California
corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇.▇▇▇, LLC, a Delaware limited liability
company, with its principal place of business located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
#▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("HC").
RECITALS
WHEREAS, iOwn is the owner and operator of the iOwn Web Site (as defined
below) that provides home buying related products, services and content, and HC
operates a variety of Web properties and real estate-related Web services,
including the Personal Brand service (as defined below); and
WHEREAS, the Parties desire to establish co-branded versions of the
PersonalBrand product which iOwn will promote, and HC will provide, to real
estate professionals who use the iOwn Web Site;
NOW, THEREFORE, in consideration of the mutual consideration, promises,
representations, and covenants set forth herein, the receipt and sufficiency of
which are hereby acknowledged, iOwn and HC agree as follows:
AGREEMENT
1. Definitions
1.1 "AgentDirect" means a version of PersonalBrand containing a reduced
set of functionality as compared to the standard version of the
PersonalBrand which has no Monthly Fee. HC may modify the AgentDirect
product from time to time.
1.2. "iOwn Agent" means real estate agents (as opposed to brokers) who are
either registered in iOwn's existing database of real estate
professionals or are users of areas of iOwn's Web Site tailored for
the agent population.
1.3. "Co-Branded PersonalBrand" means a version of the PersonalBrand
products, including AgentDirect, that is developed and maintained by
HC in accordance with the specifications set forth in Exhibit A
hereto, as further described in Section 2.
1.4. "HC Content" means HC's text, data, information, graphics or other
materials provided by HC hereunder to iOwn and subject to HC's prior
approval.
1.5. "▇▇ ▇▇▇▇▇" means HC trademarks, service marks, trade names, logos or
other source identifiers
1.6. "HC Web Site" means the Web Site owned and maintained by HC that is
currently located at the URL ▇▇▇.▇▇▇▇▇.▇▇▇ and all successors.
1.7. "Marks" means an entity's trademarks, service marks, trade names,
logos or other source identifiers.
1.8. "iOwn Competitor" means any company, person or entity whose business
or proposed business in any way involves products, services or
technology that could reasonably be determined by iOwn to be
competitive with any of iOwn's present products, services, or
technology.
1.9. "iOwn Content" means iOwn's text, data, information, graphics, or
other materials provided by iOwn to HC hereunder and subject to
iOwn's prior approval.
1.10. "▇▇▇▇ ▇▇▇▇▇" means iOwn trademarks, service marks, trade names,
logos or other source identifiers.
1.11. "iOwn Mortgage Center" means a Web Site that is developed and
operated by iOwn that includes information and other content related
to mortgages, at a URL to be provided by iOwn.
1.12. "iOwn Web Site" means the Web Site owned and maintained by iOwn that
is currently located at the URL ▇▇▇.▇▇▇▇.▇▇▇ and all successors.
1.13. "Link" means the hypertext graphic and/or textual ▇▇▇▇ that may be
initiated by clicking an icon, logo, button, image or text to
establish a direct connection to a different page of a Web Site or to
a different Web Site.
1.14. "Monthly Fee" means the monthly fee HC charges a real estate agent
for maintenance, hosting and serving of the PersonalBrand pursuant to
HC's standard terms and conditions.
1.15. "PersonalBrand" means all versions of the "▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"
personalized Web Site services that HC offers or will offer on the HC
Web Site, including development, maintenance, and hosting of Web
Sites for real estate professionals. HC may modify the PersonalBrand
product from time to time.
1.16. "Personalized Co-Branded Mortgage Center" means a Co-Branded Mortgage
Center that (a) includes the ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the applicable
iOwn Agent's Marks, (b) is Linked to from such agent's or broker's
Preferred PageorPersonalBrand, and (c) contains iOwn Content, as
further specified in Exhibit B hereto.
1.17. "Set-up Fee" means the initial fee for design and development that
HC charges a real estate agent pursuant to HC's standard terms and
conditions, who is purchasing the PersonalBrand product.
1.18. "Sign-up Page" means a page hosted by HC which is linked to from the
iOwn Web Site, and upon which iOwn Agents will be able to sign up for
the Co-Branded PersonalBrand
1.19. "Web Site" means a World Wide Web site on the Internet.
2. HC Duties. HC will design, host, maintain and support the Co-Branded
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PersonalBrand, including a Co-Branded AgentDirect version of PersonalBrand, for
iOwn Agents as described in this Section 2.
2.1 Co-Branded PersonalBrand.
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2.1.1 Product Features. The Co-Branded PersonalBrand product will
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have substantially the same features as the
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Web marketing site that is generally
commercially available from HC (including without limitation
such Web page design, hosting, maintenance and support
services as HC provides to its ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ customers),
except that: (a) each Co-Branded PersonalBrand Web, page will
contain branding of HC, iOwn and the relevant iOwn Agent, as
described in Exhibit A hereto, as well as any Links or
promotional features described therein; (b) the Co-Branded
PersonalBrand, shall contain a Link to a Personalized Co-
Branded Mortgage Center-, and (c) HC shall delete any
functionality on the Co-Branded PersonalBrand that permits
iOwn Agents to designate an alternative provider of mortgage
services or information on the Co-Branded PersonalBrand.
2.1.2 Exclusive Promoted Mortgage Provider for PersonalBrand. iOwn
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shall be the exclusive mortgage provider partner that HC
promotes on the iOwn Co-Branded PersonalBrand pages. HC,
therefore, shall not enter into any co-branding, co-marketing,
affiliate or co-promotion agreements with other mortgage
providers for promotion within any iOwn Co-Branded
PersonalBrand page.
2.1.3 Survivability. In the event of any termination or expiration
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of this Agreement, HC's obligations (a) with regard to Co-
Branded PersonalBrand features, branding, Links and
exclusivity hereunder, and (b) with regard to the continued
provision of the same hosting, maintenance and support
services as HC provides to its "▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"
customers, shall survive the termination or expiration of this
Agreement.
2.2 Offering of Co-Branded PersonalBrand to iOwn Agents.
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2.2.1 Terms of Service. HC will offer the Co-Branded PersonalBrand
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to all iOwn Agents on the Sign-up Page, according with the
following terms: (a) iOwn will be the exclusive provider of
mortgage products and information on the iOwn Agent's Co-
Branded PersonalBrand, (b) such Co-Branded PersonalBrands will
not contain advertising for or Links to iOwn Competitors, and
(c) any PersonalBrand features, branding, Links and
exclusivity hereunder will be perpetual for the life of the
Co-Branded PersonalBrand, will not removable by the iOwn
Agent, and shall survive the termination or expiration of this
Agreement.
2.2.2 Sign-up Page. HC will host and serve a Sign-up page with
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branding of HC and iOwn, as mutually agreed by the parties.
The Sign-up page will not offer any products other than the
Co-Branded PersonalBrand.
2.3 Fees to iOwn Agents.
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2.3.1 [*] for the Co-Branded PersonalBrand product.
2.3.2 Monthly Fees. HC may charge Monthly Fees to iOwn Agents for
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the Co-Branded Personal Brand, in accordance with this Section
2.3.2.
2.3.2.1 Favored Pricing. [*] for any standard
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ products. [*]
2.3.2.2 Pricing to iOwn. [*] for any or all iOwn Agents, then
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HC [*] of HC's price pursuant to Section 2.3.2.1
above.
2.4 Reporting and customer information.
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2.4.1 The iOwn agents shall be considered customers of iOwn, and HC
will not use their customer information for any purposes other
than the provision of services specified in this agreement.
2.4.2 HC will provide to iOwn on a series of reports detailing the
usage of the HC services by iOwn agents.
2.4.2.1 HC will provide reports of new agents who have signed
up for the Co-branded PersonalBrand products on a
weekly basis, along with a summary of the total
agents signed up to date.
[*] Confidential Treatment Requested
2.4.2.2 HC will provide iOwn with dynamic access to the
customer information which it collects about the iOwn
agents who sign up for the Cobranded Personal Brand
product.
3. iOwn Duties.
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3.1 Promotion of Co-Branded PersonalBrand to iOwn Agents. iOwn will use
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commercially reasonable efforts to promote the Co-Branded
PersonalBrand products to iOwn Agents. Without limitation to the
foregoing, iOwn will, place Links promoting the Co-Branded
PersonalBrand on areas of iOwn's Web Site tailored for iOwn Agents.
Such Links, when selected by iOwn Agents, will transfer iOwn Agents to
the Sign-up Page.
3.2 Preferred Provider. iOwn hereby appoints HC as iOwn's "Preferred
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Provider" of Web page design, hosting, maintenance, and domain name
registry services to iOwn Agents. As a preferred provider, iOwn will
give superior placement to HC and/or the Co-Branded PersonalBrand as
among other providers of such services and/or such services.
4. Invoices, Payment.
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4.1 Invoices. iOwn will invoice HC [*] in consideration of iOwn's
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services hereunder.
4.2 Payment of Invoices. HC shall pay all invoices from iOwn within
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thirty (30) days of the date of such invoices. All fees not paid
within thirty (30) days of when such fees become due shall be subject
to a finance charge of one and one half percent (1.5%) per month
simple interest, with such interest charges starting on the due date
for such fees.
5. Term. This Agreement will become effective as of the Effective Date and
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shall remain in effect for the Initial Term, and after the Initial Term
this Agreement shall be automatically extended for successive Renewal
Terms, unless either party provides notice of termination at least sixty
(60) calendar days prior to the end of the Initial Term or Renewal Term, as
the case may be, or unless this Agreement is otherwise terminated as
provided in the Standard Terms and Conditions.
Initial Term: [*]
Renewal Term: [*]
6. Standard Terms and Conditions. This Agreement will be governed by iOwn's
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Standard Terms and Conditions set forth in Exhibit C hereto ("Standard
Terms and Conditions").
[*] Confidential Treatment Requested
The Parties have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
iOWN, INC. ▇▇▇▇▇.▇▇▇, LLC
By:____________________________ By:____________________________
Name: ▇▇▇ ▇▇▇▇ Name:__________________________
Tide: Chief Executive Officer Title:_________________________
Address: Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A
CO-BRANDED PERSONALBRAND BRANDING AND PAGE FEATURES
To be mutually agreed by the parties and set forth in this Exhibit A.
EXHIBIT B
PERSONALIZED CO-BRANDED MORTGAGE CENTER
To be substantially similar to the cobranded mortgage center created under the
existing "Cobranding and Promotion agreement" between the parties, with any
changes to be mutually agreed by the parties and set forth in this Exhibit B.
EXHIBIT C
STANDARD TERMS AND CONDITIONS
1. Licenses
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(a) License Grant by iOwn. iOwn hereby grants to HC a nonexclusive,
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royalty-free right to: (a) use, reproduce, modify, create derivative
works of, publicly display, publish, and transmit electronically
iOwn's text, data, information, graphics or other materials provided
by iOwn hereunder to HC for use in connection with HC's obligations
hereunder ("iOwn Content"), in whole or in part; (b) use, reproduce,
publicly display and transmit electronically iOwn's trademarks,
service marks, trade names, logos or other source identifiers
(collectively, the "▇▇▇▇ ▇▇▇▇▇") as necessary to meet HC's obligations
hereunder and subject to the guidelines set forth in Section I (c)
("Use of Marks") below. Except as provided for herein, iOwn reserves
all right, title, and interest in and to iOwn's Web Site, the iOwn
Content and the ▇▇▇▇ ▇▇▇▇▇, along with any intellectual property
nights associated with any of the foregoing, and no title to or
ownership of any of the foregoing is transferred to HC or any other
entity or person under this Agreement.
(b) License Grant by HC. HC hereby grants to iOwn a nonexclusive,
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royalty-free right to use, reproduce, publicly display and transmit
electronically HC's trademarks, service marks, trade names, logos or
other source identifiers provided by HC (collectively, the "▇▇ ▇▇▇▇▇")
as necessary to meet iOwn's promotional obligations hereunder and
subject to the guidelines set forth in Section 1(c) ("Use of Marks")
below. Except as provided for herein, HC reserves all right, title,
and interest in and to the HC Web Site, the HC Content and the ▇▇
▇▇▇▇▇, along with any intellectual property rights associated with any
of the forgoing, and no title to or ownership of any of the foregoing
is transferred to iOwn or any other entity or person under this
Agreement.
(c) Use of Marks. HC will not use or exploit any of the ▇▇▇▇ ▇▇▇▇▇, and
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iOwn will not use or exploit any of the ▇▇ ▇▇▇▇▇, except in such form
as the other Party may consent to, which consent will not be
unreasonably withheld or delayed. Each Party's use of the other
Party's trademarks pursuant to the licenses set forth above shall be
in accordance with such other Party's reasonable policies regarding
use of its trademarks as may be established from time to time. Neither
Party shall use the other Party's trademarks in a manner that
disparages the other Party or its products or services, or portrays
the other Party in a false, competitively adverse or poor light.
(d) Notices. Each party agrees to display mutually agreeable trademark
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and copyright notices or legends of the other party when using such
other party's Marks. Each party shall in advance submit to the other
party the proposed placement of such notices or legends (including,
without limitation, the place and manner of
incorporation into electronic media or transmissions), and such other
party shall have the right, acting reasonably, to approve the same.
2. Public Announcements. Any public announcements relating to this Agreement
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will be subject to the parties' mutual written approval. All such
announcements will include a reasonably prominent reference to iOwn and HC.
3. Termination.
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(a) Early Termination. This Agreement may be terminated at any time by
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either party, effective immediately upon notice, if the other party:
(a) becomes insolvent; (b) files a petition in bankruptcy or (c) makes
an assignment for the benefit of its creditors. Either party may
terminate the Agreement, effective upon thirty (30) days written
notice, in the event that the other party breaches any of its
responsibilities or obligations under the Agreement in any material
respect (including, without limitation, failure to pay) which breach
is not remedied within thirty (30) days following written notice to
such party.
(b) Effect of Termination. The provisions in the Sections of
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Confidentiality, Indemnification, Limitation of Liability,
Representation and Warranties, and Miscellaneous, and the terms on the
Licenses Section regarding ownership, of these Standard Terms and
Conditions shall survive any termination or expiration of the
Agreement.
4. Confidentiality. iOwn and HC hereby acknowledge that in the course of
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activities under this Agreement each of them may have access to
confidential and proprietary information which relates to the other party's
technology, marketing and business (the "Confidential Information"). Each
party agrees to preserve and protect the confidentiality of the
Confidential Information and to not use except as provided for under the
terms of this Agreement or to disclose, or distribute to any third party
Confidential Information without the prior written consent of the other
party; provided, however, that any party hereto may disclose to any other
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party any information which receiving party demonstrates: (i) is or becomes
generally known or available by publication, commercial use, or otherwise
through no fault of a party; (ii) is discovered or created by the receiving
party without reference to the Confidential Information, as shown in
records of such party; or (iii) is lawfully obtained from a third party who
has the right to make such disclosure; (iv) is released for publication by
the other; (v) is required to be disclosed by a valid court order, or (vi)
otherwise learned through legitimate means, other than from a third party
under confidentiality obligations. Each party agrees for the Term of this
Agreement and for a period of five (5) years thereafter to protect the
confidentiality of the Confidential Information and to not use or disclose
any Confidential Information to third parties. Without limiting the scope
of the duty, the parties agree to limit their internal distribution of
Confidential Information to their board of directors, employees, and
agents, and to take reasonable steps to ensure that the dissemination is so
limited. The actions or negligence of the parties, directors, employees,
or agents shall be deemed to be
the actions or negligence of the respective party, with regard to the
Confidential Information of the other party. Moreover, any party hereto may
disclose any Confidential Information hereunder to such party's agents,
attorneys and other representatives or any, court of competent jurisdiction
or any other party empowered hereunder as reasonably required to resolve
any dispute between the parties hereto.
5. Indemnification.
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(a) Indemnification by iOwn. iOwn, at its own expense, will indemnify,
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defend and hold harmless HC, and its employees, representatives and
agents, against any claim, suit, action, or other proceeding brought
against HC or such party by a third party, to the extent that such
claim, suit, action or other proceeding is based on or arises from:
(i) any final adjudication that the use of the HomeScout
service in accordance with this Agreement (other than by reason
of any HC Brand Features, HC Content or other items or materials
supplied by HC) infringes any Intellectual Property Right of any
third party, or any right of personality or publicity, is
libelous or defamatory, or otherwise has resulted in actionable
injury or damage to an), third party; or
(ii) any misrepresentation or breach of representation or
warranty of iOwn contained herein.
iOwn will pay all costs, damages, and expenses, including, but
not limited to, reasonable attorneys' fees and costs awarded as a
result of final adjudication against or otherwise incurred by HC in
connection with or arising from any such claim, suit, action or
proceeding attributable to any such claim.
Notwithstanding the above, iOwn shall not be liable for any
claim, suit, action or other proceeding that is based on or arises as
a result of any software, content, materials or services provided to
iOwn by a third party, except and only to the extent that iOwn is
actually indemnified by the third party content provider for the same.
(b) Indemnification by HC. HC, at its own expense, will indemnify, defend
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and hold harmless iOwn, and its employees, representatives and agents,
against any claim, suit, action, or other proceeding brought against
iOwn or such party by a third party, to the extent that such claim,
suit, action or other proceeding is based on or arises from:
(i) any final adjudication that the use of any HC Brand
Features, HC Content (including without limitation Customer
Listing Data) or other items or materials supplied by HC in
accordance with this Agreement infringes any Intellectual
Property Right of any third party, or
any right of personality or publicity, is libelous or defamatory,
or otherwise has resulted in actionable injury or damage to any
third party; or
(ii) any misrepresentation or breach of representation or
warranty of HC contained herein.
HC will pay all costs, damages, and expenses, including, but not
limited to, reasonable attorneys' fees and costs finally awarded
against or otherwise incurred by iOwn in connection with or arising
from any such claim, suit, action or proceeding attributable to any
such claim.
(c) Procedures. Each party's obligation to indemnify the other hereunder
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shall be conditioned upon (v) the indemnified party providing the
indemnifying party with prompt written notice of any claim that could
lead to a claim for indemnification; (w) the indemnified party
permitting the indemnifying party to assume and control the defense of
such action, with counsel chosen by the indemnifying party, who shall
be reasonably acceptable to the indemnified party; (x) the indemnified
party will have the right to participate in any defense of such claim
and/or be represented by counsel of its own choosing at its expense;
(y) the indemnifying party will not settle any claim or action of the
claiming party's behalf without the claiming party's prior written
permission, and in the event the parties agree to settle a claim or
action, the indemnifying party agrees not to disclose the settlement
or to permit the opposing party to disclose the settlement without
first obtaining the claiming party's written permission; and (i) the
indemnified party not entering into any settlement or compromise of
any such claim without the indemnifying party's prior written consent.
In the event the indemnified party enters into any settlement or
compromise of any such claim without the indemnifying party's prior
written consent, then the indemnifying party shall have no obligation,
financial or otherwise for any such settlement or compromise so
effected.
6. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PARTIES
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PROVIDE ALL SERVICES HEREUNDER "AS IS" AND EACH PARTY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM
USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY WARRANTS THAT THEIR
RESPECTIVE SERVICES WELL BE FREE FROM BUGS, DEFECTS OR ERRORS, OR THAT THE
SERVICES HEREUNDER WELL BE ACCESSIBLE WITHOUT INTERRUPTION. UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT
FOR PAYMENT OBLIGATIONS UNDER SECTION 4 OF THE BODY OF TIES AGREEMENT,
NEITHER PARTY'S LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE TOTAL
AMOUNTS TO BE PAID HEREUNDER.
7. Representation and Warranties.
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(a) Each Party to this Agreement represents and warrants to the other
Party that: (a) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts
required of it hereunder; (b) such Party has, or shall license or
acquire, all rights necessary to perform its obligations hereunder,
(c) the execution of this Agreement by such Party, and the performance
by such Party of its obligations and duties hereunder, do not and will
not violate any agreement to which such Party is a party or by which
it is otherwise bound.
(b) iOwn represents and warrants that the ▇▇▇▇ ▇▇▇▇▇ and iOwn Content will
not infringe a third party's copyright or trademark and will not
misappropriate a third party's trade secret.
(c) HC represents and warrants that the HC ▇▇▇▇ and HC Content will not
infringe a third party's copyright or trademark and will not
misappropriate a third party's trade secret.
8. Miscellaneous.
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(a) Amendments and Waivers. Any term of this Agreement may be amended or
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waived only with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected
in accordance with this Section 12.1 shall be binding upon the parties
and their respective successors and assigns.
(b) Successors and Assigns. Neither party may assign this Agreement, in
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whole or in part, without the other party's written consent; provided,
however that iOwn may assign this Agreement without such consent in
connection with any merger, consolidation, any sale of all or
substantially all of iOwn's assets or any other transaction in which
more than fifty percent (50%) of iOwn's voting securities are
transferred, subject to all of the terms of this Agreement. Any
attempt to assign this Agreement other than in accordance with this
provision shall be null and void.
(c) Governing Law. This Agreement and all acts and transactions pursuant
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hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the
State of California, without giving effect to principles of conflicts
of law provision or rule (whether of the
State of California or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
California. HC hereby consents to the personal jurisdiction of
California, acknowledges that venue is proper in any state or federal
court in California, and waives any objection dig it has or may have
in the future with respect to any of the foregoing.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement
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are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Notices. Any notice required or permitted by this Agreement shall be
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in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service, or forty-eight
(48) hour.; after being deposited in the regular mail as certified
registered mail with postage prepaid, if such notice is addressed to
the party to be notified at such party's address as set forth in the
Agreement.
(f) Severability. If one or more provisions of this Agreement are held to
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be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith, in order to maintain the
economic position enjoyed by each party as close as possible to that
under the provision rendered unenforceable. In the event that the
parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(g) Entire Agreement. This Agreement is the product of both of the
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parties hereto, and constitutes the entire agreement between such
parties pertaining to the subject matter hereof, and merges all prior
negotiations and drafts of the parties with regard to the transactions
contemplated by this Agreement. Any and all other written or oral
agreements existing between the parties hereto regarding such
transactions are expressly canceled.
(h) Arbitration. Any dispute or claim arising out of or in connection
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with this Agreement will be settled by arbitration in San Francisco,
California in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association by three arbitrators
appointed in accordance with said rules. Each party shall select one
such arbitrator, and the two arbitrators so chosen shall select the
third arbitrator. The arbitrators shall apply California law, without
reference to rules of conflicts of law or rules of statutory
arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator maybe entered in any court having
jurisdiction thereof Notwithstanding the foregoing, the parties may
apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration in
accordance with this paragraph, without breach of this arbitration
provision.
(i) Advice of Legal Counsel. Each party acknowledges and represents that,
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in executing this Agreement, it has had the opportunity to seek advice
as to its legal rights from legal counsel and that the person signing
on its behalf has read and understood all of the terms and provisions
of this Agreement. This Agreement shall not be construed against any
party by reason of the drafting or preparation thereof.
(j) No Partnership Implied; Future Business Activity. Neither this
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Agreement nor any terms and conditions contained herein may be
construed as creating or constituting a Partnership, joint venture or
agency relationship between the parties. This Agreement shall not
limit either party's present or future business activities of any
nature, including business activities which could be competitive with
the other party, except to the extent such activities would involve a
breach of (a) the confidentiality provisions of Section 8 above or (b)
any other express provision of this Agreement.
(k) Taxes. Each party shall pay all taxes, assessments, duties, tariffs,
-----
imposts, permits and fees however designated, which are levied upon it
and related to its performance of its obligations or exercise of its
rights under this Agreement. In no event shall one party be
responsible for any taxes levied against the other party's net income.
(l) Attorney Fees. The prevailing Party in any dispute hereunder shall be
-------------
entitled to recover from the other Party its costs, expenses and
reasonable attorneys' fees (including any fees for expert witnesses,
paralegals or other legal service providers).
CO-BRANDING AND PROMOTION AGREEMENT
This CO-BRANDING AND PROMOTION AGREEMENT (the "Agreement") is made as of
November 1, 1999 (the "Effective Date") by and between iOwn, Inc. ("iOwn"), a
California corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇.▇▇▇, LLC, a Delaware
limited liability company, with its principal place of business located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("HC").
RECITALS
WHEREAS, iOwn is the owner and operator of the iOwn Web Site (as defined
below) that provides home buying related products, services and content, and HC
operates a variety of Web properties and real estate-related Web services,
including the HC Web Site (as defined below); and
WHEREAS, the Parties desire to establish a co-branded mortgage information
center that will be located on the HC Web Site, and the Parties desire to drive
traffic to such co-branded mortgage information center through a broad range of
marketing and promotional programs;
NOW, THEREFORE, in consideration of the mutual consideration, promises,
representations, and covenants set forth herein, the receipt and sufficiency of
which are hereby acknowledged, iOwn and HC agree as follows:
AGREEMENT
1. Definitions
1.1. "Ad Copy" means the artwork and copy provided by iOwn to HC for an
advertisement, newsletter or business reply card.
1.2. "Agent/Broker View" means the Web tools that an agent or broker sees
upon signing into the password protected area of his/her PersonalBrand
or Preferred Page Web Site.
1.3. "Consumer View" means the view of a Web Site that a visitor to a
PersonalBrand or Preferred Page sees, without entering the agent's or
broker's password protected area.
1.4. "Co-Branded Mortgage Center" means a Web Site that is developed and
operated by iOwn consistent with the Statement of Work (as defined in
Section 5.1 below), co-branded with ▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, and that
includes information and other content related to mortgages. An
example of a screen shot of a Co-Branded Mortgage Center is attached
as Exhibit A ("Screen Shot").
---------
1.5. "Full Application Qualified Lead" is a [*] on the Full Application
page on the iOwn Web Site [*] of first accessing such Co-Branded
Mortgage Center and who passes iOwn's customer underwriting filter.
1.6. "HC Content" means HC's text, data, information, graphics or other
materials provided by HC hereunder to iOwn and subject to HC's prior
approval.
1.7. "▇▇ ▇▇▇▇▇" means HC trademarks, service marks, trade names, logos or
other source identifiers
1.8. "HC Web Site" means the Web Site owned and maintained by HC that is
currently located at the URL ▇▇▇.▇▇▇▇▇.▇▇▇ and all successors.
1.9. "Marks" means an entity's trademarks, service marks, trade names,
logos or other source identifiers.
1.10. "iOwn Competitor" means any company, person or entity whose business
or proposed business in any way involves products, services or
technology that could reasonably be determined by iOwn to be
competitive with any of iOwn's present or proposed products,
services, or technology.
1.11. "iOwn Content" means iOwn's text, data, information, graphics, or
other materials provided by iOwn to HC hereunder and subject to
iOwn's prior approval.
1.12. "▇▇▇▇ ▇▇▇▇▇" means iOwn trademarks, service marks, trade names, logos
or other source identifiers.
1.13. "iOwn Web Site" means the Web Site owned and maintained by iOwn that
is currently located at the URL ▇▇▇.▇▇▇▇.▇▇▇ and all successors.
1.14. "Link" means the hypertext graphic and/or textual link that may be
initiated by clicking an icon, logo, button, image or text to
establish a direct connection to a different page of a Web Site or to
a different Web Site.
1.15. "PersonalBrand" means the "▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" personalized web
pages purchased by real estate professionals directly (rather than by
their broker) and that HC develops, maintains, and hosts. HC may
modify the PersonalBrand product from time to time.
1.16. "Personalized Co-Branded Mortgage Center" means a Co-Branded Mortgage
Center that (a) includes the ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the applicable
agent's or broker's Marks, (b)is Linked to from such agent's or
broker's Preferred Page or PersonalBrand, and (c) contains iOwn
Content.
[*] Confidential Treatment Requested
-2-
1.17. [*] means a [*] who completes an application and clicks the "submit"
button the Pre Approval page on the iOwn Web site [*] of first
accessing such Co-Branded Mortgage Center and who passes iOwn's
customer underwriting filter.
1.18. "Preferred Pages" means the personalized web pages purchased by real
estate brokers for the brokerage and for such brokers' agents
including any pages for such brokers or such brokers' affiliated
agents. HC develops, maintains, and hosts the Preferred Pages. HC may
modify the Preferred Pages product from time to time.
1.19. "Promotional PersonalBrand" means PersonalBrands Web Pages sold to
agents who agree to have iOwn be the exclusive mortgage provider on
the Consumer View and Agent/Broker View of their Personalized
PersonalBrand. Such Promotional PersonalBrands differ from other
PersonalBrands as follows: (a) HC shall delete any functionality that
permits such agents to designate an alternative provider of
mortgages, (b) HC shall waive such agents' Set-up Fee and (c) HC
shall invoice iOwn for such Set-up Fees as set forth in Section 8.2
below.
1.20. Promotional Preferred Pages means Preferred Pages Web Pages sold to
brokers who agree to have iOwn as the exclusive mortgage provider on
the Consumer View and Agent/Broker View of their brokerage, and their
agents', Personalized Preferred Pages. Such Promotional Preferred
Pages shall differ from other Preferred Pages as follows: (a) HC
shall delete any functionality that permits such agents to designate
an alternative provider of mortgages, (b) HC shall waive such agents'
Set-up Fee and (c) HC shall invoice iOwn for such Set-up Fees as set
forth in Section 8.1 below.
1.21. "Set-up Fee" means the initial fee for design and development that HC
charges a real estate agent or broker (as applicable), pursuant to
HC's standard terms and conditions, who is purchasing either the
PersonalBrand or Preferred Page product.
1.22. "Site Visitor" means a unique visitor (possessing a unique internet
protocol address) to the Co-Branded Mortgage Center who first
accessed either the iOwn Web Site or the Co-Branded Mortgage Center
through the HC Web Site or through a Personalized Co-Branded Mortgage
Center.
1.11 "Web Site" means a World Wide Web site on the Internet.
2. Preferred Pages
2.1. Integration with Preferred Pages. The Parties shall work together to
---------------------------------
integrate a Personalized Co-Branded Mortgage Center into all existing
and new Preferred
[*] Confidential Treatment Requested
-3-
Pages, including both the Consumer Views and Agent/Broker Views
thereof, as set forth in Exhibit B ("Integration").
---------
2.2. Alternative Provider Requests. In the event that an agent or broker
------------------------------
requests that HC place a Link from the Preferred Page to alternative
mortgage provider, then the Parties agree that HC may honor such
request. Without limiting the foregoing and prior to honoring such
request, HC agrees to use its best efforts to introduce such agent or
broker to iOwn so that iOwn may promote its mortgage services to such
agent or broker.
2.3. Promotion of Preferred Pages. During the Initial Term, HC will use
----------------------------
its best efforts to sell at least [*] of Promotional Preferred Pages,
based on the Set-up Fees rates set forth in Exhibit F ("Preferred
---------
Pages Set-up Fees"). HC shall include language HC's standard contract
for the sale of Promotional Preferred Pages that states that (a)
iOwn's shall be the exclusive mortgage provider on the Personalized
Co-Branded Mortgage Center for the life of the Promotional Preferred
Page, and (b) iOwn is a third party beneficiary to such contract for
the purpose of enforcing the above stated section. If HC fails to
sell at least [*] of Promotional Preferred Pages during the Initial
Term, then HC will continue to use its best efforts to sell such
Promotional Preferred Pages after the Initial Term (whether during
any Renewal Term or after the termination or expiration of this
Agreement), in accordance with the terms of this Section 2.3, [*].
2.4. Link to Personalized Co-Mortgage Center. HC shall include in HC's
----------------------------------------
standard contract for the sale of Promotional Preferred Pages a
provision that states that the Link from the Promotional Preferred
Pages to the Personalized Co-Mortgage Center ("Personalized Link")
shall survive the termination or expiration of this Agreement. After
a [*] such agent may request that HC remove the Personalized Link
subject to the payment of a new Set-up Fee at the then-current rates.
If an agent makes such a request, [*] of the resulting Set-up Fees.
Such payment shall be made to iOwn on a quarterly basis.
3. PersonalBrand
3.1. Integration with PersonalBrand. The Parties shall work together to
-------------------------------
integrate a Personalized Co-Branded Mortgage Center into all existing
and new PersonalBrand pages, including both the Consumer Views and
Agent/Broker Views thereof, as set forth in Exhibit B
---------
("Integration").
3.2. Alternative Provider Requests. In the event that an agent requests
------------------------------
that HC place a Link from the PersonalBrand to alternative mortgage
provider, then the Parties
[*] Confidential Treatment Requested
-4-
agree that HC may honor such request. Without limiting the foregoing
and prior to honoring such request, HC agrees to use its best efforts
to introduce such agent to iOwn so that iOwn may promote its mortgage
services to such agent.
3.3. Promotion of PersonalBrand. During the [*] HC will use its best
--------------------------
efforts to sell at least [*] Promotional PersonalBrands. HC shall
include language in HC's standard contract for the sale of
Promotional PersonalBrands (a) that states that iOwn shall be the
exclusive mortgage provider for the life of the Personalized Co-
Branded Mortgage Center, and (b) that iOwn is a third party
beneficiary to such contract for the purpose of enforcing the above
stated section. If HC fails to sell at least [*] Promotional
PersonalBrands during the Initial Term, then HC will continue to use
its best efforts to sell such [*] Promotional PersonalBrands after
the Initial Term (whether during any Renewal Term or after the
termination or expiration of this Agreement), in accordance with the
terms of this Section 3.3, [*].
3.4. Link to Personalized Co-Mortgage Center. HC shall include in HC's
----------------------------------------
standard contract for the sale of Promotional PersonalBrand a
provision that states that the Personalized Link shall survive the
termination or expiration of this Agreement. After a [*] term, such
agent may request that HC remove the Personalized Link subject to the
payment of a new Set-up Fee at the then-current rates. [*].
4. Integration with HC Web Site
4.1. Termination of Current HC Mortgages Page Obligation. Immediately
----------------------------------------------------
after the Effective, HC will use best efforts to terminate any
existing obligations or agreements, whether written, oral or implied
by conduct, that relate to advertising, branding or content provision
on the HC Web Site regarding mortgages. To the extent that any such
obligations or agreements are not immediately terminable, HC will use
its best efforts to diminish and minimize the prominence or placement
of such advertising, branding or content during such time as such
obligations are in effect. HC will not renew any existing
agreements.. A list of all such agreements and their expiration dates
is attached as Exhibit C ("Mortgage Advertisement Agreements").
---------
4.2. Links. HC shall provide iOwn with a Link from the home page of the HC
-----
Web Site to the Co-Branded Mortgage Center. In addition, HC shall
provide iOwn with a Link on the HC's navigation bar. Such Link shall
be titled "Mortgages" as set forth in Exhibit E ("Link Screen Shot").
------------------------------
HC will ensure that each such Link conveys users directly to the Co-
Branded Mortgage Center. In addition, HC shall
[*] Confidential Treatment Requested
-5-
not take any action, or assist, authorize or encourage any third
party to take any action, that would cause the appearance or
presentation of the Co-Branded Mortgage Center as seen by users of
Links to be different from that seen by users who access the Co-
Branded Mortgage Center by hand-entering the applicable URL into a
generally commercially available browser which has not been
customized for a particular person or entity.
4.3. Exclusivity. HC hereby appoints iOwn as its exclusive provider of
-----------
mortgages on the HC Web Site., The Parties acknowledge that such
exclusivity is subject to the existing agreements listed in Exhibit C
---------
("Mortgage Advertisement Agreements"). If HC is providing a co-
branded or affiliate version of the HC Web Site to a third party
partner who asks HC to incorporate an alternative mortgage provider,
then HC may honor such request. Without limiting the foregoing and
prior to honoring such request, HC agrees to use its best efforts to
introduce such partner to iOwn so that iOwn may promote iOwn's
mortgage services to such partner. The Parties agree, however, that
HC may not solicit such request from partner.
5. Co-Branded Mortgage Center
5.1. Development of the Co-Branded Mortgage Center. The Parties agree to
----------------------------------------------
work together to develop specifications for the development of a Co-
Branded Mortgage Center ("Statement of Work") as set forth in Exhibit
-------
D ("Statement of Work"). Such Co-Branded Mortgage Center shall be the
---------------------
framework for the Personalized Co-Branded Mortgage Centers and shall
be Linked to the HC Web Site as set forth above in Section 4.2
("Links").
5.2. Content and Services. The Parties will mutually agree on the content
---------------------
and information to be placed in the Co-Branded Mortgage Center. iOwn
will be solely responsible for the sale and placement of advertising
on the Co-Branded Mortgage Center, at iOwn's sole discretion. If HC,
in its reasonable discretion, finds any advertising on the Co-Branded
Mortgage Center to be objectionable, then HC may notify iOwn and iOwn
shall use commercially reasonable efforts to remove such advertising.
iOwn will own all right, title and interest in and to all information
(including user-related information) that is created or collected in
the operation of the Co-Branded Mortgage Center. iOwn will use
commercially reasonable efforts to provide "Hosting Services" for the
Co-Branded Mortgage Center, including all necessary technical,
support, sales, administrative and management personnel, facilities,
equipment and supplies. For purposes of this Agreement, "Hosting
Services" means the provision and management of servers,
telecommunications, facilities, maintenance, and operations related
to the delivery of Internet based services and content.
6. Advertising
-6-
6.1. Promotion. The Parties agree to mutually promote and advertise the
----------
Co-Branded Mortgage Center as set forth herein, and as otherwise
mutually agreed by the Parties. In addition, HC will prominently
promote the iOwn services and promotional offers in all of its
standard sales and marketing efforts for the Preferred Pages and
PersonalBrands products.
6.2. Banner Advertisements. HC will place a run of site "Banner
----------------------
Advertisement" that will be displayed on the top of the pages of the
HC Web Site throughout the Term. For purposes of this Agreement,
"Banner Advertisement" will mean a Link from the HC Web Site to Co-
Branded Mortgage Center in the form of an iOwn advertisement. The
Parties agree that such Banner Advertisement will be at least ___ x
____ pixels. iOwn will provide HC with the relevant text, graphics,
and format for such Banner Advertisements.
6.3. Impressions. HC will use best efforts to provide iOwn with at least
------------
[*] of the Banner Advertisement per month during the Term. For
purposes of this Agreement, "Impression" shall mean each time that
the Banner Advertisement is served on the HC Web Site.
6.4. Verification. By six p.m. Pacific Standard Time, on the fifteenth
-------------
(15) day of each month, HC will deliver monthly reports to iOwn in a
mutually agreeable format. These reports shall contain information
regarding the number of Impressions for the preceding calendar month.
6.5. Newsletters. HC agrees that iOwn shall be the exclusive mortgage-
------------
related sponsor or advertiser in HC's newsletters and other
informational distributions (such as e-mails to HC's members)
(collectively "Newsletters"). As mutually agreed to by the Parties,
HC further agrees to include iOwn information and Ad Copy (as defined
below) promoting the Co-Branded Mortgage Center to place in such
Newsletters. The Parties shall agree upon the content and placement
of such information and Ad Copy before each distribution of a
Newsletter.
6.6. Homes and Land.
---------------
6.6.1 Full Page Advertisements. HC will cause one (1) full-page,
-------------------------
full-color print advertisement promoting the Co-Branded Mortgage
Center to be inserted in each issue of every local version of "Homes
and Land" magazines published by PCL Media, Ltd of Tallahassee,
Florida. iOwn will provide the Ad Copy to HC or to a third party
designated by HC as is required by the circumstance of such insertion
rights.
6.6.2 Business Reply Cards. At iOwn's request, four (4) times
---------------------
during the Initial Term, and two (2) times during each Renewal Term,
HC will cause one (1) reply card to be inserted in each issue of
every local version of "Homes and Land" magazine published by PCL
Media, Ltd of Tallahassee, Florida. In iOwn's sole
[*] Confidential Treatment Requested
-7-
discretion, iOwn will provide Ad Copy to HC or to a third party
designated by HC as is required by the circumstance of such insertion
rights. Subject to HC's reasonable approval, iOwn shall determine, in
its sole discretion, the content and subject matter of the business
reply card. The Parties acknowledge and agree that such content is
not required to reference the Co-Branded Mortgage Center.
6.6.3 Definition. For purposes of this Section 6.6. the term
-----------
"cause ... to be inserted" means that HC will either assign such
insertion rights to iOwn as HC may have (whether by contract,
promotional "comps" or the like), or HC will secure such insertion
rights for iOwn at HC's sole cost and expense.
7. HomeLine and HomeMail Lead Mailings
7.1. HomeLine Mailings. iOwn will develop and provide to HC marketing
------------------
collateral materials that promote both iOwn and the Co-Branded
Mortgage Center to be inserted in HC's standard mailings to "HomeLine
Customers". For purposes of this Agreement, "HomeLine Customer" means
a potential customer that requests information from HC's 800
telephone number or requests information from a similar Link on the
HC Web Site. HC agrees to include such marketing collateral in HC's
mailings to HomeLine customers. [*].
7.2. HomeMail Mailings. iOwn will develop and provide to HC some marketing
------------------
collateral materials that promote both iOwn and the Co-Branded
Mortgage Center to be inserted in HC's standard mailings to "HomeMail
Customers". For purposes of this Agreement, "HomeMail Customer" means
a customer who lists a home with a real estate agent who advertises
such listing in Homes and Land magazine and to whom HC mails a
complimentary copy of such magazine. HC agrees to include such
marketing collateral in HC's mailings to HomeMail customers. [*].
8. Revenue
8.1. Promotional Preferred Pages
---------------------------
8.1.1 As set forth in Section 2.3 ("Promotion of Preferred
Pages"), iOwn will pay HC the Set-up Fees for the Promotional
Preferred Pages at the rates set forth in Exhibit F ("Promotional
---------
Pages Set-up Fees")during the Term of the Agreement. At the end of
each quarter during the Initial Term, HC shall invoice iOwn for a
quarterly minimum of Promotional Preferred Page Set-up Fees of [*]
("Promotional Preferred Pages Fees Minimum") for the previous
quarter. iOwn shall pay such Promotional Preferred Page Fees Minimum
within sixty (60) days of iOwn's receipt of the invoice.
[*] Confidential Treatment Requested
-8-
8.1.2 Reports. Along with such invoice, HC will send a report to
--------
iOwn that (a) states the number of Promotional Preferred Pages Set Up
Fees credited to real estate brokers during the previous quarter and
since the Effective Date, (b) deducts the total quarterly Promotional
Preferred Pages Fees Minimum paid to date, and (c) demonstrates the
credit or debit that results from such deduction. In the event that
there is either a credit or debit balance on such quarterly report,
neither Party shall be required to expedite any payments due under
this Section.
8.1.3 Reconciliation. At the expiration of the Initial Term, the
---------------
Parties shall have a final accounting of number of Promotional
Preferred Pages Set Up Fees credited and the total Promotional
Preferred Pages Fees Minimums paid. In the event that HC has not sold
a number of Promotional Preferred Pages that equal the Promotional
Preferred Pages Fees Minimums paid, then HC will continue to sell the
Promotional Preferred Pages as set forth in Section 2.3 ("Promotion
of Preferred Pages") above at [*]. However, once ▇▇ ▇▇▇▇▇ the number
of Promotional Preferred Pages that equal the Promotional Preferred
Pages Minimums, either at the end of the Initial Term or during a
Renewal Term, iOwn will pay HC on a quarterly basis at the rates set
forth herein but not subject to the Promotional Preferred Page
Minimums during the Initial Term and any Renewal Terms. Once HC has
sold a number of Promotional Preferred Pages that equal [*], HC will
provide iOwn with written notice. Within twenty (20) business days
after such notice, the Parties agree to meet and discuss in good
faith how to proceed once HC has sold enough Promotional Preferred
Pages to equal the Preferred Pages Fees Minimums.
8.2. Promotional PersonalBrand.
-------------------------
8.2.1 Fees. As set forth in Section 3.3 ("Promotion of
-----
PersonalBrand"), iOwn will pay HC the Set-up Fees for the Promotional
PersonalBrand at [*] during the Term of the Agreement. At the end of
each quarter during the Initial Term, HC shall invoice iOwn for a
quarterly minimum of Promotional PersonalBrand Set-up Fees of [*]
("Promotional PersonalBrand Fees Minimum") for the previous quarter.
iOwn shall pay such Promotional PersonalBrand Fees Minimum within
sixty (60) days of iOwn's receipt of the invoice.
8.2.2 Reports. Along with such invoice, HC will send a report to
-------
iOwn that (a) states the number of Promotional PersonalBrand Set Up
Fees credited to real estate brokers during the previous quarter and
since the Effective Date, (b) deducts the total quarterly Promotional
PersonalBrand Fees Minimum paid to date, and (c) demonstrates the
credit or debit that results from such deduction. In the event that
there is either a credit or debit balance on such quarterly report,
neither Party shall be required to expedite any payments due under
this Section.
[*] Confidential Treatment Requested
-9-
8.2.3 Reconciliation. At the expiration of the Initial Term, the
---------------
Parties shall have a final accounting of number of Promotional
PersonalBrand Set Up Fees credited and the total Promotional
PersonalBrand Fees Minimums paid. In the event that HC has not sold
[*] Promotional PersonalBrands, then HC will continue to sell the
Promotional PersonalBrand as set forth in Section 3.3 ("Promotion of
PersonalBrand") [*]. However, after ▇▇ ▇▇▇▇▇ the required [*]
Promotional PersonalBrand either at the end of the Initial Term or
during a Renewal Term, iOwn will pay HC on a quarterly basis at the
rates set forth herein but not subject to the Promotional
PersonalBrand Minimums during the Initial Term and any Renewal Terms.
Within ten (10) business days after HC has sold [*] Promotional
PersonalBrands, HC will provide iOwn with written notice. Within
twenty (20) business days after such notice, the Parties agree to
meet and discuss in good faith how to proceed once HC has sold [*]
PersonalBrands.
8.3. Marketing Fees. iOwn will pay HC a marketing fee of [*] ("Full
--------------
Application Marketing Fee"). iOwn will also pay HC a marketing fee of
[*] ("Pre-Approval Marketing Fee"). The Full Application Marketing
Fee and Pre-Approval Marketing Fee are collectively referred to as
"Marketing Fees". iOwn will pay HC a [*] Marketing Fee of [*]
("Marketing Fee Quarterly Minimum"). Along with each payment, iOwn
will send a report to HC that (a) states the number of Full
Application Qualified Leads and Pre-Approval Qualified Leads received
in the applicable quarter and since the Effective Date, (b)
calculates out the total Marketing Fees due since the Effective Date,
and (c) deducts the total Marketing Fees paid since the Effective
Date. In the event that the total Marketing Fees due exceeds the
Marketing Fees Quarterly Minimum payments that iOwn has made to HC,
iOwn will include a payment for the remainder due with the report.
iOwn shall mail such report and payment, if applicable, within sixty
(60) days of the end of the quarter. After the expiration of the
Initial Term, iOwn shall continue to pay HC the Full Application
Marketing Fees and the Pre-Approval Marketing Fees, but shall not be
subject to paying the [*]. To the degree that any agent or broker
customer seeks to participate in the Marketing Fees revenues, HC
agrees to take full responsibility for such participation out of
Marketing Fees paid to HC by iOwn.
8.4. Advertising. As consideration for the advertising as set forth in
-----------
Section 6 above, iOwn agrees to pay HC a [*]. iOwn shall pay such
quarterly payments within thirty (30) days of the end of each
quarter.
[*] Confidential Treatment Requested
-10-
8.5. Taxes. Each Party shall be responsible for the taxes that result from
-----
such Party's performance of its obligations under this Agreement.
Without limiting the foregoing, each Party is responsible for paying
their respective corporate income taxes for any revenues associated
with this Agreement.
8.6. Audit. During the Term of this Agreement and for two (2) years after
-----
its termination or expirations, each Party shall maintain complete
and accurate records that relate to its performance of its
obligations hereunder. Such records that relate to the calculation
and payment of any payments under this Agreement shall be kept in
compliance with generally accepted methods of accounting. Once a year
during the Term of this Agreement and once after the termination or
expiration of this Agreement, each Party ("Auditing Party") will be
entitled to have its independent certified public auditor review the
other Party's ("Audited Party") records and information relating to
the calculation and payment of the fees due hereunder. Such audit may
happen upon twenty (20) days written notice, during normal business
hours, in a manner so as to minimize the impact on the Audited
Party's normal course of business, and at the Auditing Party's
expense. In the event that the audit reveals an underpayment of more
than five percent (5%) of the amount paid during any audit period,
the Audited Party will bear the cost of the audit. If any audit
should disclose any underpayment or overpayment, then the Audited
Party shall send the Auditing Party a payment or credit, as
applicable, within thirty (30) days of receiving written notice of
such discrepancy.
9. Licenses
9.1. License Grant by HC. HC hereby grants to iOwn a nonexclusive,
-------------------
royalty-free right to: (a) use, reproduce, publicly display, publish,
and transmit electronically the HC Content in whole or in part, on or
in connection with the iOwn Web Site, for use in connection with
iOwn's obligations hereunder; and (b) use, reproduce, publicly
display and transmit electronically the ▇▇ ▇▇▇▇▇ as necessary to meet
iOwn's obligations hereunder and subject to the guidelines set forth
in Section 9.3("Use of Marks") below. Except as provided for herein,
HC reserves all right, title, and interest in and to the HC Web Site,
the HC Content and the ▇▇ ▇▇▇▇▇, along with any intellectual property
rights associated with any of the forgoing, and no title to or
ownership of any of the foregoing is transferred to iOwn or any other
entity or person under this Agreement.
9.2. License Grant by iOwn. iOwn hereby grants to HC a nonexclusive,
---------------------
royalty-free right to: (a) use, reproduce, publicly display, publish
and transmit electronically the iOwn Content and Ad Copy for use
solely in connection with HC's obligations hereunder; and (b) use,
reproduce, publicly display and transmit electronically the ▇▇▇▇
▇▇▇▇▇ as necessary to meet HC's obligations hereunder and subject to
the guidelines set forth in Section 9.3 ("Use of Marks") below.
Except as provided for herein, iOwn reserves all right, title, and
interest in and to the iOwn Web Site, Ad Copy, the iOwn Content and
the ▇▇▇▇ ▇▇▇▇▇, along with any intellectual property
-11-
rights associated with any of the forgoing, and no title to or
ownership of any of the foregoing is transferred to HC or any other
entity or person under this Agreement.
9.3. Use of Marks. HC will not use or exploit any of the ▇▇▇▇ ▇▇▇▇▇, and
------------
iOwn will not use or exploit any of the ▇▇ ▇▇▇▇▇, except in such form
as the other Party may consent to, which consent will not be
unreasonably withheld or delayed. Each Party's use of the other
Party's trademarks pursuant to the licenses set forth above shall be
in accordance with such other Party's reasonable policies regarding
use of its trademarks as may be established from time to time.
Neither Party shall use the other Party's trademarks in a manner that
disparages the other Party or its products or services, or portrays
the other Party in a false, competitively adverse or poor light.
9.4. Notices. Each Party agrees to display mutually agreeable trademark
-------
and copyright notices or legends of the other Party when using such
other Party's Marks. Each Party shall in advance submit to the other
Party the proposed placement of such notices or legends (including,
without limitation, the place and manner of incorporation into
electronic media or transmissions), and such other Party shall have
the right, acting reasonably, to approve the same.
10. Public Announcements. Any public announcements relating to this Agreement
will be subject to the Parties' mutual written approval. Such announcements,
as well as all references to the Co-Branded Mortgage Center by HC within the
HC Web Site or otherwise, will include a reasonably prominent reference to
iOwn as the provider of mortgage content in the Co-Branded Mortgage Center.
11. Term and Termination
11.1. Term. The term of this Agreement shall be [*] commencing on the
-----
Effective Date, unless terminated sooner in accordance with this
Agreement ("Initial Term"). Thereafter the term of this Agreement
will automatically renew for [*] ("Renewal Term"), unless terminated
by either Party by written notice to the other Party within ninety
(90) days of the end of the current Term. The Initial Term and
Renewal Term may be individually or collectively referred to as
"Term".
11.2. Early Termination. This Agreement may be terminated at any time by
-----------------
either Party, effective immediately upon notice, if the other Party:
(a) becomes insolvent; (b) files a petition in bankruptcy or (c)
makes an assignment for the benefit of its creditors. Either Party
may terminate the Agreement, effective upon thirty (30) days written
notice, in the event that the other Party breaches any of its
responsibilities or obligations under the Agreement in any material
respect (including, without limitation, failure to pay) which breach
is not remedied within thirty (30) days following written notice to
such Party.
[*] Confidential Treatment Requested
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11.3. Effect of Termination. The defined term and the rights and
---------------------
obligations set forth in the following sections shall survive any
termination or expiration of this Agreement: 2.3 ("Promotion of
Preferred Pages"), 3.3 ("Promotion of PersonalBrand"), 8.5
("Taxes"), 8.6 ("Audit"), 11 ("Term and Termination"), 12
("Confidentiality"), 13 ("Indemnification"), 14 ("Limitation of
Liability"), 16 ("Miscellaneous"). [
12. Confidentiality. iOwn and HC hereby acknowledge that in the course of
activities under this Agreement each of them may have access to
confidential and proprietary information which relates to the other Party's
technology, marketing and business (the "Confidential Information").
------------------------
Confidential Information includes but is not limited to the terms of this
Agreement, the number of Full Application Qualified Leads and Preapproval
Qualified Leads, or any other written or oral disclosure of such
information. Each Party agrees to preserve and protect the confidentiality
of the Confidential Information and to not use except as provided for under
the terms of this Agreement or to disclose, or distribute any Confidential
Information to any third party without the prior written consent of the
other Party; provided, however, that any Party hereto may disclose to any
-------- -------
other Party any information which receiving Party demonstrates: (i) is or
becomes generally known or available by publication, commercial use, or
otherwise through no fault of a Party; (ii) is discovered or created by the
receiving Party without reference to the Confidential Information, as shown
in records of such Party; or (iii) is lawfully obtained from a third party
who has the right to make such disclosure; (iv) is released for publication
by the other; (v) is required to be disclosed by a valid court order; or
(vi) otherwise learned through legitimate means, other than from a third
party under confidentiality obligations. Each Party agrees for the Term of
this Agreement and for a period of five (5) years thereafter to protect the
confidentiality of the Confidential Information as set forth herein.
Without limiting the scope of the duty, the Parties agree to limit their
internal distribution of Confidential Information to their board of
directors, employees, independent contractors, and agents, and to take
reasonable steps to ensure that the dissemination is so limited. The
actions or negligence of the Parties, directors, employees, or agents shall
be deemed to be the actions or negligence of the respective Party, with
regard to the Confidential Information of the other Party. Moreover, any
Party hereto may disclose any Confidential Information hereunder to such
Party's agents, attorneys and other representatives or any court of
competent jurisdiction or any other Party empowered hereunder as reasonably
required to resolve any dispute between the Parties hereto.
13. Indemnification
13.1. Indemnification by iOwn. iOwn, at its own expense, will indemnify,
-----------------------------
defend and hold harmless HC, and its employees, representatives and
agents, against any claim, suit, action, or other proceeding brought
against HC or such Party by a third party, to the extent that such
claim, suit, action or other proceeding is based on or arises from
any final adjudication that iOwn breached a representation or
warranty set forth in this Agreement. iOwn will pay all costs,
damages, and
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expenses, including, but not limited to, reasonable attorneys' fees
and costs awarded as a result of final adjudication against or
otherwise incurred by HC in connection with or arising from any such
claim, suit, action or proceeding attributable to any such claim.
13.2. Indemnification by HC. HC, at its own expense, will indemnify,
---------------------
defend and hold harmless iOwn, and its employees, representatives
and agents, against any claim, suit, action, or other proceeding
brought against iOwn or such Party by a third party, to the extent
that such claim, suit, action or other proceeding is based on or
arises from any final adjudication that HC breached a representation
or warranty set forth in this Agreement HC will pay all costs,
damages, and expenses, including, but not limited to, reasonable
attorneys' fees and costs finally awarded against or otherwise
incurred by iOwn in connection with or arising from any such claim,
suit, action or proceeding attributable to any such claim.
13.3. Procedures. Each Party's obligation to indemnify the other hereunder
----------
shall be conditioned upon (v) the indemnified Party providing the
indemnifying Party with prompt written notice of any claim that
could lead to a claim for indemnification; (w) the indemnified Party
permitting the indemnifying Party to assume and control the defense
of such action, with counsel chosen by the indemnifying Party, who
shall be reasonably acceptable to the indemnified Party; (x) the
indemnified Party will have the right to participate in any defense
of such claim and/or be represented by counsel of its own choosing
at its expense; (y) the indemnifying Party will not settle any claim
or action of the claiming Party's behalf without the claiming
Party's prior written permission, and in the event the Parties agree
to settle a claim or action, the indemnifying Party agrees not to
disclose the settlement or to permit the opposing Party to disclose
the settlement without first obtaining the claiming Party's written
permission; and (z) the indemnified Party not entering into any
settlement or compromise of any such claim without the indemnifying
Party's prior written consent. In the event the indemnified Party
enters into any settlement or compromise of any such claim without
the indemnifying Party's prior written consent, then the
indemnifying Party shall have no obligation, financial or otherwise
for any such settlement or compromise so effected.
14. Waiver of Consequential Damages and Limitation of Liability. UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM ANY
PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE
OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT FOR THE PAYMENT OBLIGATIONS
SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY'S LIABILITY UNDER THIS
AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY IOWN TO HC HEREUNDER.
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15. Representation and Warranties.
15.1. Each Party to this Agreement represents and warrants to the other
Party that: (a) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts
required of it hereunder; (b) such Party has, or shall license or
acquire, all rights necessary to perform its obligations hereunder,
(c) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder,
do not and will not violate any agreement to which such Party is a
party or by which it is otherwise bound.
15.2. iOwn represents and warrants that the iOwn ▇▇▇▇, iOwn Content, and
Ad Copy will not infringe a third party's copyright or trademark and
will not misappropriate a third party's trade secret.
15.3. HC represents and warrants that the HC ▇▇▇▇ and HC Content will not
infringe a third party's copyright or trademark and will not
misappropriate a third party's trade secret.
15.4. HC represents and warrants that it has the right to provide iOwn
with business reply card and full page advertising in the Homes &
Land magazine publication as contemplated in this Agreement.
15.5. EXCEPT AS SET FORTH HEREIN, BOTH PARTIES DISCLAIM ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM
USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE WITH
REGARD TO ANY CONTENT, INFORMATION, PRODUCTS, OR SERVICES PROVIDED
HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IOWN
DOES NOT WARRANT THAT THE CO-BRANDED MORTGAGE CENTER WILL BE FREE
FROM BUGS, DEFECTS OR ERRORS, OR THAT THE CO-BRANDED MORTGAGE CENTER
WILL BE ACCESSIBLE WITHOUT INTERRUPTION.
16. Miscellaneous
-------------
16.1. Amendments and Waivers. Any term of this Agreement may be amended or
----------------------
waived only with the written consent of the Parties or their
respective successors and assigns. Any amendment or waiver effected
in accordance with this Section 16.1 shall be binding upon the
Parties and their respective successors and assigns.
16.2. Successors and Assigns. Neither Party may assign this Agreement, in
----------------------
whole or in part, without the other Party's written consent;
provided, however, that either
-------- -------
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Party may assign this Agreement without such consent in connection
with any merger, consolidation, any sale of all or substantially all
of such Party's assets or any other transaction in which more than
fifty percent (50%) of such Party's voting securities are
transferred, subject to all of the terms of this Agreement. This
Agreement shall be binding on any such assignee. Any attempt to
assign this Agreement other than in accordance with this provision
shall be null and void.
16.3. Governing Law. This Agreement and all acts and transactions pursuant
-------------
hereto and the rights and obligations of the Parties hereto shall be
governed, construed and interpreted in accordance with the laws of
the State of California, without giving effect to principles of
conflicts of law provisions. Both Parties hereby consent to the
personal jurisdiction of California, acknowledges that venue is
proper in any state or federal court in California, and waives any
objection that such Party has or may have in the future with respect
to any of the foregoing.
16.4. Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
16.5. Notices. Any notice required or permitted by this Agreement shall be
-------
in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service, or
forty-eight (48) hours after being deposited in the regular mail as
certified registered mail with postage prepaid, if such notice is
addressed to the Party to be notified at such Party's address as set
forth in the Agreement.
16.6. Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, the Parties agree to
renegotiate such provision in good faith, in order to maintain the
economic position enjoyed by each Party as close as possible to that
under the provision rendered unenforceable. In the event that the
Parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement
shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with
its terms.
16.7. Arbitration. Any dispute or claim arising out of or in connection
-----------
with this Agreement will be settled by arbitration in San Francisco,
California in accordance with the then-current Commercial
Arbitration Rules of the American Arbitration Association by three
arbitrators appointed in accordance with said rules. Each Party
shall select one such arbitrator, and the two arbitrators so chosen
shall select the third arbitrator. The arbitrators shall apply
California law, without reference to rules of conflicts of law or
rules of statutory arbitration, to the resolution of any dispute.
Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. Notwithstanding the
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foregoing, the Parties may apply to any court of competent
jurisdiction for preliminary or interim equitable relief, or to
compel arbitration in accordance with this paragraph, without breach
of this arbitration provision.
16.8. Attorney Fees. The prevailing Party in any dispute hereunder shall
-------------
be entitled to recover from the other Party its costs, expenses and
reasonable attorneys' fees (including any fees for expert witnesses,
paralegals or other legal service providers).
16.9. Advice of Legal Counsel. Each Party acknowledges and represents
-----------------------
that, in executing this Agreement, it has had the opportunity to
seek advice as to its legal rights from legal counsel and that the
person signing on its behalf has read and understood all of the
terms and provisions of this Agreement. This Agreement shall not be
construed against any Party by reason of the drafting or preparation
thereof.
16.10. No Partnership Implied; Future Business Activity. Neither this
------------------------------------------------
Agreement nor any terms and conditions contained herein may be
construed as creating or constituting a partnership, joint venture
or agency relationship between the Parties. This Agreement shall not
limit either Party's present or future business activities of any
nature, including business activities which could be competitive
with the other Party, except to the extent such activities would
involve a breach this Agreement.
16.11. Entire Agreement. This Agreement is the product of both of the
----------------
Parties hereto, and constitutes the entire agreement between such
Parties pertaining to the subject matter hereof, and supersedes all
prior negotiations and drafts of the Parties with regard to the
transactions contemplated by this Agreement. Any and all other
written or oral agreements existing between the Parties hereto
regarding such transactions are expressly canceled.
The Parties have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
iOWN, INC. ▇▇▇▇▇.▇▇▇, LLC
Name: ▇▇▇ ▇▇▇▇ Name:
By:______________________ By:_______________________
Title:___________________ Title:____________________
Address: Address:
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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EXHIBIT A
SCREEN SHOT
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EXHIBIT B
INTEGRATION
[NEED TECH INPUT HERE]
1. iOwn's Obligations
Provide design and content input
Provide HC with the relevant graphics and text for the Links that HC will
be placing on the appropriate pages.
Use commercially reasonable efforts to tailor the provision of mortgage
services for the agents in the both the Consumer View and Agent/Broker View on
the PersonalBrand and Preferred Pages Web Sites.
2. HC Obligations
Implement agreed-upon design and frame into existing and new Preferred
Pages and PersonalBrand Pages, such that the Personalized Co-Branded Mortgage
Center will be co-branded dynamically to each PersonalBrand or Preferred Pages'
look and feel.
For all Preferred Pages, [*] HC will create functionality that permits such
broker or agent to manually designate an alternative local provider of mortgage
services through a negative selection option whereby such agent or broker will
have to "unselect" iOwn.
For Preferred Pages and PersonalBrand pages [*] implement technical blocks
within the Agent Views such that the agent or broker may not designate an
alternative to iOwn as their default mortgage provider.
Provide Links to the Personalized Co-Branded Mortgage Center from both
the Consumer View and Agent/Broker Views of the PersonalBrand and Preferred
Pages Web Sites, that will be tailored or contain information that is specific
to such real estate professional and allow iOwn to capture that information and
tailor the Personalized Co-Branded Mortgage Center as part of delivering the
Personalized Co-Branded Mortgage Center.
Create Links from the Promotional PersonalBrands and Promotional Preferred
Pages to the Personalized Co-Mortgage Center such that the Links shall be for
the life of the Promotional PersonalBrand or Promotional Preferred Pages.
[*] Confidential Treatment Requested
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EXHIBIT C
MORTGAGE ADVERTISEMENT AGREEMENTS
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EXHIBIT D
STATEMENT OF WORK
1. Specifications and Schedule
---------------------------
HC agrees to use commercially reasonable efforts to have the existing Co-Branded
Mortgage Center be exclusive to iOwn by [*].
The Parties will use commercially reasonable efforts to agree upon a first set
of specifications for a revised Co-Branded Mortgage Center by [*].
The Parties will use commercially reasonable efforts to implement such
specifications by [*].
2. iOwn Content iOwn Content may include, but is not limited to the following:
------------
HomeBuying Tools
. How Much Can You Afford? (tool and guide): Helps users quickly assess their
broad home purchasing power through a combination of a calculator and an
educational guide.
. Choose the Right Mortgage (tool and guide): Two tools to help users
determine the right mortgage product, first by comparing monthly payments
of different products, the second by recommending a mortgage and reviewing
actual rates and payments across any number of loans.
. Down Payment Strategies (guide): Helps users to determine their optimal
down payment for their property and how to accumulate the down payment.
. Estimate Your Closing Costs (guide): Review the standard fees in the home
buying process, learn how to compare closing costs to find the lowest
loans, and gain knowledge about lender rates, points and rebates.
. RateWatch (not co-branded- notification service): an e-mail notification
service that allows the user to monitor interest rates for a specific
mortgage. iOwn will e-mail the user when rates reach or fall below a
specified rate.
. Refi Check: Allows user to compare their current mortgage to one offered
through iOwn so they can evaluate refinance opportunities.
. Rent vs. Buy: Allows users to evaluate their current financial situation
and describes how purchasing a home would affect them.
Mortgage Services
. Rate Shopper (tool): Provides an impartial, customized comparison of
available interest rates from a database of national and regional lenders.
Users can specify criteria most
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important to them in a loan, including rate, points, product type, etc.,
and generate a rank-ordered list of rates meeting their criteria.
. Prequalification: Provides a formal analysis of a borrower's application
information based on a small subset of data, and uses actual lender
guidelines to assess how likely they are to get a loan. Information is
password-protected to ensure security and allow repeated access to the
information entered. This tool generates a certified prequalification
letter and worksheet to use with Realtors and sellers to help in the offer
process. This tool is fully iOwn branded.
. Preapproval: Allows user to conduct a detailed, real time analysis of their
borrowing situation, without having identified their target property, based
on actual criteria specified by national and regional lenders. Information
is password-protected to ensure security and allow repeated access to the
information entered by the user. This tool is fully iOwn branded.
. Full Application: Captures all required data for to proceed with a loan
application. Information is password-protected to ensure security and allow
repeated access to the information entered. This tool is fully iOwn
branded.
3. Changes to the Specifications or Schedule The Parties acknowledge that
-----------------------------------------
there may need to be revisions to the specifications or schedule for the Co-
Branded Mortgage Center. Either Party may propose changes to the specifications
or schedule by providing the other Party with written notice. The Parties agree
to work together to review and asses any such change request. If the Parties
agree upon a change, then the Statement of Work shall be so amended.
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EXHIBIT E
LINK SCREEN SHOT
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EXHIBIT F
PREFERRED PAGES SET UP FEES
[*]
[*] Confidential Treatment Requested
-25-
Amendment to HOMESCOUT DATA AGREEMENT
THIS AMENDMENT (the "Amendment") is entered into by and between iOwn, Inc., a
California corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("iOwn") and the ▇▇▇▇▇.▇▇▇
division of PCL Media, Ltd, a Florida limited partnership with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PCL")
and is effective as of the 1/st/ of November, 1999 ("Effective Date").
WHEREAS, iOwn and PCL entered into a HOMESCOUT DATA AGREEMENT (the "Agreement")
dated June 30, 1999;
WHEREAS, the parties desire to amend that Agreement;
NOW, THEREFORE, in consideration of the mutual consideration, promises,
representations, and covenants set forth herein, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Effective _____________________, 1999, PCL transferred all of its rights and
obligations under the Agreement to ▇▇▇▇▇.▇▇▇, LLC, a Delaware limited liability
company, with its principal place of business located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇
▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Homes"), a successor-in-interest to PCL's rights and
obligations thereunder. Homes represents and wan-ants that such transfer is
valid and effective, that Homes has the authority to make such representation,
agrees to be bound to all duties of PCL thereunder, and will execute any further
documents required to evidence such transfer. Upon such terms, iOwn consents to
the above transfer from PCL to Homes.
Section 3(d) is hereby incorporated into the Agreement as set forth below:
3(d) Exclusivity. Homes will not post or will remove any and all
sponsorships, Links, promotions, advertisements, content or other data
from mortgage brokers or related mortgage or lending companies other
than iOwn from any and all Web pages that Homes displays the HomeScout
Data.
Section 4(a) is hereby deleted in its entirety and replaced with the following
Language:
4(a) An amount equal to [*] as a one time set-up fee;
Section 4(b) is hereby incorporated into the Agreement as set forth below:
4(b) An amount equal to [*] per month through [*] in connection with the
use of the HomeScout Data in accordance with the terms herein and
subject to the performance standards included in Exhibit C; and
BY
[*] Confidential Treatment Requested
Section 4(c) is hereby incorporated into the Agreement as set forth below:
4(c) An amount equal to [*] through the expiration of the Term of the,
Agreement, in connection with the use of the HomeScout Data in
accordance with the tam herein and subject to the performance standards
included in Exhibit Co
Section 5 is hereby deleted in its entirety and replaced with the following
language:
This Agreement will become effective as of the Effective Date written
above and shall remain in effect for the Initial Term described below,
and after the Initial Term this Agreement shall be automatically
extended for successive Renewal Terms, unless either party provides
written notice of its intent not to renew at least thirty (30) days
prior to the end of the Initial Term or Renewal Term, as the case may
be, or unless this Agreement is otherwise terminated as provided in the
Standard Terms and Conditions.
Initial Term: [*]
Renewal Terms: [*]
Section 5.1 (d) of Exhibit A is hereby deleted in its entirety.
Exhibit C is hereby deleted in its entirety.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
listed above.
PCL MEDIA, LTD. iOWN, INC.
By: __________________________ By: __________________________
Name: __________________________ Name: ▇▇▇ ▇▇▇▇
Title:__________________________ Title: Chief Executive Officer
Date: __________________________ Date: __________________________
BY
[*] Confidential Treatment Requested
