Exhibit 10.18
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
THIS (the "Agreement") is made this 1st day of September
1999 by and between Xxxxxxxxx.xxx, Inc., a corporation having a principal place
of business at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000 (hereinafter referred
to as "Xxxxxxxxx.xxx") and XxxxxxxxXxxx.xxx, Inc., a corporation having a
principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
(hereafter referred to as "CompleteHome").
WITNESSETH
WHEREAS, CompleteHome is in the business of providing online
advertising and certain other promotional activities (as described herein)
generally through its soon to be launched real estate Internet Web Site and
through certain sites maintained by CompleteHome and its subsidiaries or
otherwise associated with the CompleteHome Web Site, including the site operated
by CompleteHome's subsidiary Rent Net, Inc. ("Rent Net"); and
WHEREAS, Xxxxxxxxx.xxx desires to purchase online advertising on such
Web Sites.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Parties agree as follows:
ARTICLE 1. DEFINITIONS
"Affiliate" shall mean entity controlled by, controlling or under common control
with CompleteHome.
"Co-Branded Pages" shall mean the World Wide Web ("WWW") page(s) accessible via
each Party's designated Uniform Resource Locator ("URL") and that incorporates
use of both Parties' service marks and distinct brand elements in conjunction
with each other as specified in this Agreement or as otherwise agreed to by the
Parties.
"Competitor" shall mean any company in the business of selling residential
furniture. An Online Competitor shall mean a Competitor whose primary channel of
marketing to consumers is through the Internet and an Off-line Competitor shall
mean a Competitor who, while possibly maintaining a web site, nevertheless
maintains physical locations (i.e., storefronts) in which it conducts
residential furniture sales and has a broad distribution across the United
States. A Competitor shall not include an entity that is solely in the business
of selling home furnishings (e.g., rugs, lamps, artwork, etc.) or appliances.
For purposes of this Agreement, a company, which sells home furnishings/
appliances in combination with furniture, is deemed a Competitor.
"CompleteHome Look and Feel" shall mean the distinctive and particular elements
of graphics, design, organization, presentation, layout, user interface,
navigation, trade dress and stylistic convention (including the digital
implementations thereof) which are associated with online areas within the
CompleteHome brand service and the total appearance and impression substantially
formed by the combination, coordination and interaction of these elements.
"CompleteHome User(s)" shall mean any users of the Portal and of the Rent Net
Web Site during the First Period who make a purchase from a Xxxxxxxxx.xxx
site during a visit in which they have accessed the Xxxxxxxxx.xxx site via a
link from the Portal or the Rent Net Web Site, or who use a Franchisor Broker
Code as part of the purchase.
"Content" shall mean any information, materials, features, products, services,
advertisements, promotions, links, pointers and software provided on a web site.
"E-mail Messages" shall mean the transmission of messages to multiple users over
the Internet. All E-mail Messages will be edited to reflect a particular source
sending the message to the recipient who have not previously received such
messages.
"Franchisor Broker" shall mean a real estate broker or agent affiliated with a
Franchisor.
"Franchisor Broker Code" shall mean a unique identifier specific to each
Franchisor Broker or agent.
"Franchisors" shall mean Century 21 Real Estate Corporation, Coldwell Banker
Real Estate Corporation or ERA Franchise Systems, Inc. companies.
"Gross Sales Proceeds" shall mean all amounts received by a party with respect
to sales of products or services, less sales and use taxes, shipping where
separately itemized and an allowance for returns. Each quarter the parties will
set the allowance for returns based on the actual experience for the preceeding
quarter.
"Hyperlink" shall mean the electronic functionality located on a web site that
connects a user to another web site, another place in the same web site or the
WWW.
"Impressions" shall mean access by a user of a file, including without
limitation, a hypertext xxxx-up language ("HTML") file, at or connecting to a
Linked Internet Site corresponding to the view of a single page on a customer's
computer, as reflected in the log files for the Linked Internet Site or any
cached log files for the Linked Internet Site.
"Internet" shall mean the worldwide network of computers commonly referred to as
the Internet.
-2-
"Licensed Content" shall mean all content provided by Xxxxxxxxx.xxx or its
agents for distribution through the Online Area or other areas of the Rent
Net Web Site or the Portal pursuant to this Agreement, including
Xxxxxxxxx.xxx Marks.
"Link" shall mean a URL hidden behind a formatting option that may take the form
of a colored item of text (such as a URL description), logo or image, and which
allows a site visitor to automatically move to or between WWW pages, WWW sites
or within a WWW document.
"Linked Internet Site" shall mean any site or area accessible through the use of
standard TCP/IP protocols associated with the Internet, which is linked to the
Portal (through a "pointer" or similar Link).
"Xxxx(s)" shall mean the service marks, trademarks and distinct brand elements
of a Party to be provided to the other Party from time to time, under this
Agreement.
"Online Area" shall mean the specific areas within the Portal, which shall be
developed, managed and marketed by CompleteHome pursuant to this Agreement
identified as the Retail Furniture Center on the Rent Net Web Site and the
Retail Furniture Center (or equivalent area) on the CompleteHome Web Site.
"Portal" shall mean the collection of Web Sites accessible, directly or
indirectly, through the CompleteHome home page and operated by CompleteHome or
its Affiliates, or by Affiliates of Xxxxxxxxx.xxx Corporation to the extent the
Web Sites owned or operated by such entities are Linked to the CompleteHome Web
Site.
"Premier Placement" shall mean advantageous placement on a web site of a
Hyperlink taking into account such factors as location on the page (e.g., top
most, left most or "above the fold"), size of button and/or other features of
prominence when compared to any Competitor. CompleteHome shall determine such
parameters during site development.
"Products" shall mean any product, good or service which Xxxxxxxxx.xxx offers or
sells to CompleteHome Users through (i) the Online Area, (ii) any Linked
Internet Site or (iii) an "off-line" means (e.g., toll-free number, coupons,
etc.) for receiving orders related to specific offers within the Portal
requiring purchasers to reference a specific promotional identifier or tracking
code (to be extent permitted hereunder).
"Web Site" shall mean a multi-media, interactive computer program designed to
run on the World Wide Web section of the Internet (and the information displayed
thereby and thereon).
-3-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
ARTICLE 2. TERM
1. The term of the Agreement (the "Term") shall commence September 1, 1999 and
shall end on December 31, 2001, subject to earlier termination as hereinafter
described. The four (4) month period from September 1, 1999 to and including
December 31, 1999 shall be referred to as the "First Period," the six (6) month
period from January 1, 2000 to and including June 30, 2000 shall be referred to
as the "Second Period" and the eighteen (18) month period from July 1, 2000
through December 31, 2001 shall be referred to as the "Third Period" herein.
Should the Portal be launched after December 31, 1999, the Term will be extended
for the months or portion thereof by which the Portal launch is delayed and the
Term of the First Period shall be similarly extended. The Second and Third
Periods shall commence immediately upon expiration of the prior period and shall
be of the same duration as set forth above.
2. Either Party may terminate this Agreement prior to the end of the Term, in
the event the other Party has materially defaulted in its obligations hereunder
and has not cured such breach within thirty (30) days after receipt of notice of
such breach (ten (10) days in the case of a payment default).
3. In the event at the expiration of this Agreement CompleteHome intends to
continue a sponsorship relationship with respect to online retail furniture
sales substantially similar to the relationship set forth in this Agreement,
Xxxxxxxxx.xxx shall be afforded the opportunity to make a proposal to
CompleteHome for the renewal of this Agreement, which CompleteHome may accept or
reject in its sole discretion. Neither Party to this Agreement shall be
obligated to extend this Agreement except upon terms then acceptable to both
Parties.
4. Notwithstanding the foregoing, if [**] in Gross Sales Proceeds of
Furniture.corn Product has not been sold in the aggregate through the Portal and
Rent Net by March 30, 2001, provided Xxxxxxxxx.xxx is not then in default under
this Agreement, Xxxxxxxxx.xxx may, by written notice delivered not later than
March 31, 2001, terminate this Agreement effective June 30, 2001, such notice to
be accompanied by a payment equal to [**] which payment represents a prepayment
of the Fixed Fees for the period from April 1, 2001 through June 30, 2001;
Furniture.corn shall also be obligated to pay all other amounts due under this
Agreement with respect to such period. Should Xxxxxxxxx.xxx elect to terminate
this Agreement as provided in this paragraph, Xxxxxxxxx.xxx shall no longer have
any rights under the preceding paragraph with respect to a renewal of this
Agreement, and CompleteHome shall, after March 31, 2001, be free to negotiate
agreements with other retail furniture vendors on terms similar to this
Agreement for terms commencing after June 30, 2001.
5. Except as expressly provided herein, upon the expiration or termination of
this Agreement, all rights, duties and obligations of the parties hereunder
shall terminate.
-4-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
6. The provisions of Articles 8, 9 and 10 shall survive any expiration or
termination of this Agreement in accordance with their terms.
ARTICLE 3. SERVICES
I. ONLINE POSITIONING
(A) FIRST PERIOD: RENT NET
During the First Period, Rent Net shall provide Xxxxxxxxx.xxx placement on the
Rent Net Web Site as follows:
1. RETAIL FURNITURE CENTER SPONSORSHIP
a. Premier Placement as a retail residential furniture site in the
Retail Furniture Center.
b. Integrated cross promotion of the Retail Furniture Center
throughout applicable places on the Rent Net Web Site. Examples
of how this may be accomplished include appearances on search
results pages, Renters Center pull down menu, Moving Resources
guide, Shopping Center, etc. CompleteHome shall be solely
responsible for determining such cross promotion.
2. SHOPPING CENTER SPONSORSHIP
Premier Placement as a retail residential furniture site on
the front page of Rent Net Shopping Center.
(B) SECOND AND THIRD PERIODS: RENT NET
During the Second and Third Periods, Xxxxxxxxx.xxx shall receive placement,
Impressions and other communications opportunities as set forth below on the
Rent Net Web Site:
1. BANNERS IN APARTMENT GUIDE
[**] total Impressions. The banners generating such Impressions shall
have a minimum size of
[**] pixels.
2. INLINE ADS - TEXT ADS WITHIN APARTMENT LISTINGS
[**] total Impressions.
-5-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3. SITE WIDE PROMOTIONS
Permanent positioning as one of four buttons on every page relating to
apartment rentals, generating a minimum of [**] Impressions.
Impressions in excess of [**] are provided at no additional cost.
4. E-MAIL MARKETING
[**] outgoing E-mail Messages from the Rent Net Web Site will contain
Xxxxxxxxx.xxx reference. Such e-mails will promote the Rent Net Retail
Furniture Center with branding to Xxxxxxxxx.xxx. For example, such
e-mails will contain a message such as: "Visit the Rent Net Furniture
Center and get $100 off your first purchase from Xxxxxxxxx.xxx." The
content of such E-mail Messages shall be submitted to Furniture.corn
for Xxxxxxxxx.xxx's prior approval, which shall not be unreasonably
withheld or delayed.
5. RETAIL FURNITURE CENTER SPONSORSHIP
a. Premier Placement as a retail residential furniture site in
Retail Furniture Center.
b. Integrated cross promotion of the Rent Net Retail Furniture
Center throughout applicable pages on Rent Net Web Site,
including a link from the Rent Net Home Page; examples of how
this may be accomplished include, but are not limited to,
appearances on search results pages, Renting Center moving
resource menu, Moving Resources guide, Shopping Center, etc.
c. Should Rent Net decide to place banner ads on the Retail
Furniture Center page(s), all banner Impressions will advertise
Xxxxxxxxx.xxx.
6. SHOPPING CENTER SPONSORSHIP
Premier Placement as a retail residential furniture site on front page
of shopping.
II. PORTAL POSITIONING.
During the Second and Third Periods, Xxxxxxxxx.xxx shall receive placement,
Impressions and other communications opportunities as set forth below on Web
Sites constituting parts of the Portal as follows:
1. BANNERS ON SPECIFIED WEB SITES:
a. CompleteHome: (i) [**] Impressions and (ii)[**]
Co-Branded Impressions pointing to CompleteHome Retail
Furniture Center.
b. CENTURY21com: [**] Impressions.
c. XXXXXXXXXXXXXX.xxx: [**] Impressions.
d. XXX.xxx: [**] Impressions.
e. The banners generating such Impressions shall have a minimum size
of [**] pixels.
-6-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2. E-MAIL MARKETING
[**] outgoing E-mail Messages from the Portal Web Sites will contain
Xxxxxxxx.xxx reference. Such e-mails will promote the CompleteHome
Retail Furniture Center with branding to Xxxxxxxxx.xxx. For example,
such e-mails will contain a message such as: "Visit the CompleteHome
Furniture Center and get $100 off your first purchase of $500 or more
from Xxxxxxxxx.xxx."
3. COMPLETEHOME RETAIL FURNITURE CENTER SPONSORSHIP
a. Premier Placement as a retail residential furniture site in
Retail Furniture Center.
b. Integrated cross promotion of the CompleteHome Retail Furniture
Center throughout applicable pages on CompleteHome Web Site,
including a link from the CompleteHome Home Page.
c. Promotion of Furniture Center on CompleteHome will be equal to or
more prominent than any other shopping category on CompleteHome.
d. Should CompleteHome decide to place banner ads on the Retail
Furniture Center page(s), all banner Impressions will be
delivered to Xxxxxxxxx.xxx.
4. SHOPPING CENTER SPONSORSHIP
Premier Placement as a retail residential furniture site on front page
of shopping center.
5. CONTENT INTEGRATION
Subject to editorial approval, Xxxxxxxxx.xxx will have the opportunity
to provide furniture-related Content and tools to the CompleteHome
site.
6. WELCOME WAGON PROMOTION
The Parties agree to explore opportunities to promote Xxxxxxxxx.xxx
within the Welcome Wagon area expected to be developed as part of the
CompleteHome site. Development of this area shall be at the sole
discretion of CompleteHome. In the event that such area is offered to a
national sponsor through CompleteHome, CompleteHome agrees to negotiate
in good faith with Xxxxxxxxx.xxx regarding the terms and conditions
under which Xxxxxxxxx.xxx may participate in such area.
7. COMPLETEHOME TELEVISION ADVERTISING
As an anchor tenant on the front page of the CompleteHome Shopping
Center, Xxxxxxxx.xxx will be displayed on any television ads for
CompleteHome, which spotlight visually the Shopping Center.
-7-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
III. SERVICES COMMITMENT.
1. CompleteHome will endeavor to deliver [**] of each of the Impressions and
of outgoing E-mail Messages prior to [**]. The aggregate of [**] shall be
delivered prior to the expiration of this Agreement. If [**] of either the
Impressions or the e-mail messages are not delivered prior to [**],
CompleteHome shall provide to Xxxxxxxxx.xxx an additional amount of
Impressions or e-mail messages, as the case may be, equal to the amount by
which the Impressions or e-mail messages, as the case may be, failed to
satisfy the [**] requirements (the "Shortfall"). By way of example, if only
[**] of the Impressions are delivered in the aggregate by CompleteHome prior
to [**], the amount of the Shortfall (i.e., [**] of the total commitment for
Impressions) shall be provided to Xxxxxxxxx.xxx (i.e., [**] in the aggregate)
during the Term. Notwithstanding the foregoing, the completion of the
Impressions commitment shall not extend past [**].
2. In the event CompleteHome fails to deliver all of the Impressions or
e-mail messages guaranteed pursuant to this Agreement during the Term (as
such commitment may be adjusted pursuant to the preceding paragraph)
CompleteHome shall continue to deliver Impressions or e-mail messages, as the
case may be, after the Term until such time as the commitment set forth in
this Agreement is met at no additional cost to Xxxxxxxxx.xxx.
3. Notwithstanding anything to the contrary contained in this Agreement, no
failure to deliver Impressions or e-mail messages during the time periods
specified in this Agreement shall constitute a default by CompleteHome under
this Agreement unless CompleteHome fails to use good faith efforts to continue
to provide Impressions or e-mail messages, as the case may be, in order to "make
good" on such commitments. Further, in the case of any "make goods" as set forth
above (either to achieve 100% of the commitments set forth above or as a
Shortfall amount) such obligations shall be satisfied through Impressions or
e-mail messages delivered in any category set forth above, e.g. if the XXX.xxx
site has a Shortfall of Impressions, such Impressions may be made up in the
XxxxxxxxXxxx.xxx home page, as is determined in the reasonable judgment of
CompleteHome.
IV. EXCLUSIVITY.
During the Second Period only, Xxxxxxxxx.xxx will be the exclusive retail
residential furniture supplier with permanent graphical placement within the
Retail Furniture Center on Rent Net and CompleteHome. No Competitor shall be
provided such placement. During the Second and Third Periods, Xxxxxxxxx.xxx will
be the exclusive retail residential furniture supplier promoted through
site-wide promotion buttons and E-mail Marketing on the Rent Net site; no
Competitor shall be provided such promotion.
-8-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Nothing contained in this section shall prevent Rent Net, XXXXXXX00.xxx,
XXXXXXXXXXXXXX.xxx, XXX.xxx or any other Portal entity from displaying banner
advertising from other online or off-line retail furniture companies anywhere on
their sites, with the exception of the Online Area during the Term.
Notwithstanding the foregoing, nothing contained herein shall be deemed to
prohibit the Franchisors from engaging in promotional activities with
Competitors in any online or off-line promotions during the Term.
V. PREFERRED ALLIANCE.
In addition to the online advertising contemplated herein, during the Second and
Third Periods, Xxxxxxxxx.xxx will be recommended by CompleteHome to the
franchisees of the Franchisors as a preferred vendor of the Products.
Specifically, during the Second Period, Xxxxxxxxx.xxx shall be the exclusive
online retail residential furniture vendor promoted as described below. No
Competitor shall be promoted in such manner. During the Third Period,
CompleteHome shall have [**] to Xxxxxxxxx.xxx. Should Xxxxxxxxx.xxx have an
off-line furniture sales operation (either directly or through an affiliation)
actually in operation at the end of the Second Period, CompleteHome will provide
Xxxxxxxxx.xxx the opportunity to negotiate towards securing such placement for
its off-line operations.
1. IN-OFFICE PROMOTION. Promotional marketing pieces, produced by
CompleteHome will be shipped (at the expense of CompleteHome) to every
participating CENTURY 21, COLDWELL BANKER and ERA office nationwide.
These marketing pieces will promote the shopping and furniture areas of
the CompleteHome site. Xxxxxxxxx.xxx will receive branding as the
preferred online retail furniture vendor on each marketing piece. The
materials will require consumers to identify a Franchisor Broker in
order to receive a more attractive discount than the standard discount
offered on the main Xxxxxxxxx.xxx site. The portions of such materials
referring to Xxxxxxxxx.xxx shall be subject to Xxxxxxxxx.xxx's prior
approval, which shall not be unreasonably withheld or delayed.
2. ONGOING EXPOSURE. Through a combination of any or all of the recurring
mailings, newsletters, e-mails to the brokers/agents and speeches at
the CENTURY 21, COLDWELL BANKER and ERA national conventions, the
CompleteHome team will promote the benefits of sending homeowners to
the CompleteHome shopping and furniture areas. These promotions will
include a specific reference to the special discount available through
Xxxxxxxxx.xxx.
3. CENTURY 21 MAGAZINE. Xxxxxxxxx.xxx will receive a full-page
advertisement in each quarterly issue of the Century 21 Magazine issued
during the Term (e.g., eight (8) insertions) at CompleteHome's expense.
-9-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
VI. PORTAL DEVELOPMENT.
Subject to complying with its Preferred Placement and other obligations
hereunder, CompleteHome retains the right, in its sole discretion, to modify at
any time the presentation and Content, including without limitation the
CompleteHome Look and Feel, of any of its Web Sites and any and all pages
contained therein. Xxxxxxxxx.xxx acknowledges that such modifications by
CompleteHome, if any, may change the location and/or placement of the
advertising on a particular page. All advertising, including the placement,
presentation and content thereof, is subject to prior approval by CompleteHome,
which approval will not be unreasonably withheld. CompleteHome shall be entitled
to establish navigational icons, Hyperlinks and pointers connecting Co-Branded
pages (or portions thereof) with other content areas on or outside of the Portal
Web Site. Xxxxxxxxx.xxx shall be responsible for providing and maintaining
Hyperlinks for the advertising and other links to Xxxxxxxx.xxx Linked Internet
Sites for display on the Web Sites on the Portal.
ARTICLE 4. LICENSE
Xxxxxxxx.xxx hereby grants CompleteHome a worldwide royalty-free
non-transferable, nonexclusive license to use, distribute, display and transmit
its Licensed Content (i) solely on the Rent Net Web Site and the Portal as
contemplated by this Agreement and (ii) in connection with the marketing and
promotion of Xxxxxxxxx.xxx on the Rent Net Web Site and the Portal or as
otherwise contemplated herein. Subject to such license, Xxxxxxxxx.xxx. retains
all right, title and interest in its Licensed Content. Notwithstanding the
foregoing, CompleteHome agrees that it shall use all Xxxxxxxxx.xxx Marks exactly
in the form provided and in conformance with all usage guidelines provided by
Xxxxxxxxx.xxx. CompleteHome shall not take any action inconsistent with
Xxxxxxxxx.xxx's ownership of its Marks and any benefits accruing from the use of
such Marks shall automatically vest in Xxxxxxxxx.xxx.
ARTICLE 5. FEES AND DISCOUNTS
1. DISCOUNTS. Customers who identify a Franchisor Broker in their
transactions with Xxxxxxxxx.xxx or who arrive at Xxxxxxxxx.xxx from a
Franchisor Broker web site shall be offered a discount of a minimum of
[**] any other discounts applicable to the offer otherwise being
offered to Xxxxxxxxx.xxx customers for similar products as long as the
[**] discount does not increase the total discount over [**]. By way of
example, if Xxxxxxxxx.xxx is offering a [**] discount, customers will
be offered the [**] discount without an additional [**] ; if
Xxxxxxxxx.xxx is offering a [**] discount, customers qualify for the
additional [**], bringing the total discount to [**], and if
Xxxxxxxxx.xxx is offering a [**] discount, customers will be offered a
[**] discount. Xxxxxxxxx.xxx shall use commercially reasonable efforts
to provide CompleteHome with not less than [**] notice of any offer of
a discount of more than [**]. Xxxxxxxxx.xxx
-10-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
will pay CompleteHome the cost of any marketing CompleteHome performs to
Franchisor Brokers of these sales.
2. FIXED FEES:
a. Xxxxxxxxx.xxx shall pay to CompleteHome a one-time fee of [**],
payable on [**] or the launch date of the Portal, whichever
is later.
b. Xxxxxxxxx.xxx shall pay monthly fees on or about the 30th day of
each month during the Term in the amounts set forth below for
the periods set forth below.
YEAR OR PERIOD MONTHLY FEE
First Period [**]
2000 [**]
2001 [**]
3. SUCCESS FEES. In addition to any other fees payable hereunder,
Xxxxxxxxx.xxx agrees to pay to CompleteHome a commission on Gross Sales
Proceeds of Products to CompleteHome Users net of the discount
described in the paragraph 1 above, equal to [**] of such Gross Sales
Proceeds in excess of [**]. Such commissions shall be payable monthly
in arrears on or about the 15th day of the month following the end of
the month in which such sales occurred. Success Fees will not continue
should Xxxxxxxxx.xxx choose to terminate this Agreement prior to
[**] pursuant to Article 2.
4. BROKER/AGENT SALES FEES. Xxxxxxxxx.xxx shall pay CompleteHome a [**]
commission on Gross Sales Proceeds for all sales identified with a
Franchisor Broker site. Xxxxxxxxx.xxx shall provide CompleteHome with
sufficient information regarding such sales in order to enable
CompleteHome to identify Franchisor Brokers associated with any such
sales and CompleteHome shall pay over a portion of such commission for
any sale identified to a Franchisor Broker. The commissions payable to
CompleteHome with respect to the sales made in each month shall be paid
not more than fifteen (15) days after the end of such month. Franchisor
Broker commissions will continue to be payable with respect to any
sales made through [**], whether or not Xxxxxxxxx.xxx chooses to
terminate this Agreement prior to [**] pursuant to Article 2, but not
if Xxxxxxxxx.xxx terminates this Agreement as a result of
CompleteHome's breach or default.
5. REPORTS. Xxxxxxxxx.xxx shall provide CompleteHome on a monthly basis,
with each payment under sections 2, 3 or 4 above, a report, certified
as true and correct by a duly authorized representative of
Xxxxxxxxx.xxx, detailing the sales made by (a) Franchisor Broker sorted
by code; (b) all sales of Products to CompleteHome Users not associated
with Franchisor Broker sales and (c) total sales made by
-11-
Xxxxxxxxx.xxx to CompleteHome Users, and the calculation of the commissions paid
thereon. In addition to the certified report submitted with each payment,
Xxxxxxxxx.xxx shall furnish to CompleteHome on January 31st of each year during
the Term and one (1) year thereafter a report detailing the above stated reports
of sales made to CompleteHome Users and the calculation of the commissions paid
thereon for the preceding calendar year. This report shall be certified as
fairly stated in all material aspects and in conformity with generally accepted
accounting principles by a duly authorized officer of Xxxxxxxxx.xxx.
ARTICLE 6. AUDITING RIGHTS
Xxxxxxxxx.xxx shall keep accurate and complete records of all Gross Sales
Proceeds and customer orders and accounts. All such records and all accounting
systems with respect thereto shall be available for inspection, copy and audit
by CompleteHome or its representatives, no more than once every six (6) months,
on reasonable notice to Xxxxxxxxx.xxx during normal business hours throughout
the Term of this Agreement and for one (1) year thereafter. Xxxxxxxxx.xxx shall
fully cooperate with CompleteHome in such inspection and audit. Neither
CompleteHome's acceptance of any information nor CompleteHome's inspection or
audit of Xxxxxxxxx.xxx's records shall waive CompletcHome's right later to
dispute the accuracy or completeness of any information supplied by
Xxxxxxxxx.xxx. In the event any such audit establishes an underpayment of
commissions, Xxxxxxxxx.xxx shall pay the amount of the deficit within five (5)
business days of notification of such deficiency. In the event such audit
identifies an overpayment of commissions, such overpayment shall be a credit
against future commissions to become due from Xxxxxxxxx.xxx to CompleteHome
(provided that if no such commissions become due during the 90 days following
the identification of such overpayment, CompleteHome shall remit the full amount
of such overpayment to Xxxxxxxxx.xxx). If an audit establishes an underpayment
of commissions greater than five percent (5%) of the total commissions then due
and payable to CompleteHome, Xxxxxxxxx.xxx. shall pay for the costs and expenses
of such audit. In the event of a dispute over the result of any such audit, the
amount so disputed shall be deposited by the Party to be charged with an escrow
agent acceptable to both Parties and pursuant to an escrow agreement acceptable
to both Parties and such escrow agent shall retain the disputed amount until
such time as the dispute is resolved.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) 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; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Content will neither infringe on any copyright, U.S. patent or any other third
party right nor violate any applicable law or regulation (and Xxxxxxxxx.xxx has
been adjudicated as violating a third party's intellectual property rights); and
(v) such Party acknowledges
-12-
that the other Party makes no representations, warranties or agreements related
to the subject matter hereof which are not expressly provided for in this
Agreement.
ARTICLE 8. INTELLECTUAL PROPERTY RIGHTS
Each Party specifically acknowledges that this Agreement does not confer upon
such Party any interest in or right to use any patent, copyright, trademark,
service xxxx, trade secret or other intellectual property right of the other
Party, the Franchisors or their Affiliates and franchisees (collectively
referred to as the "Intellectual Property Rights") unless such Party receives
the prior written consent of the other Party which consent the other Party may
grant or withhold in its sole discretion. Each Party further agrees that upon
termination of this Agreement, such Party shall immediately cease and
discontinue all use of the other Party's Intellectual Property Rights authorized
hereunder. Further, if such Party wishes to utilize the Intellectual Property
Rights in advertising or promotional materials, it must submit such materials to
the other Party for final approval before utilizing such advertising and
promotional materials. In no event may such Party or any affiliated or
associated person or entity utilize the other Party's Intellectual Property
Rights in connection with any products or services other than the online
advertising contemplated herein. The Parties further acknowledge that this
Agreement does not create or grant any rights in such Party to use any
Intellectual Property Rights owned or controlled by any franchisee or Affiliate,
or their Affiliates, nor does the other Party have any right to grant any such
rights.
Xxxxxxxxx.xxx will transfer its ownership of the URL's, "xxxxxxxxxxxx.xxx,"
"xxxxxxxxxxx.xxx," "xxxxxxxxxxxx.xxx," to CompleteHome Operations, Inc.,
pursuant to the Change of Domain Name Agreement attached hereto as Exhibit A.
ARTICLE 9. CONFIDENTIAL INFORMATION
Xxxxxxxxx.xxx and CompleteHome agree to hold in the strictest confidence and not
use or disclose to any person, firm or corporation, without the written
authorization of the other Party, except as required by law, any "Confidential
Information" (as defined below). Each Party and their respective employees,
officers, directors, shareholders and agents agree not to use any of the
Confidential Information for the purpose of competing with the other Party
either directly or indirectly or to assist third persons or entities to compete
with the other Party. For purposes of this Agreement, "Confidential Information"
means all information, documents and materials provided by one Party to the
other Party before or during the term of this Agreement relating to or in
connection with the Project, including, without limitation, technical data,
specifications, communication protocols, trade information, customer or client
lists and records, business and marketing plans, schematics, reports and
technical and marketing data; provided, however, that neither Party shall be
under any obligation to maintain in confidence any portion of the information it
has received which (a) is now, or which becomes hereafter, through no act or
failure to act on the part of the recipient party, generally known or available
to the public, (b) is known by the recipient party at the time of the disclosure
of such information, provided that the source of such information was not known
by the receiving party to be prohibited from disclosing such information by a
contractual, legal or fiduciary obligation or (c)
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is hereafter furnished to the recipient party by a source other than the other
Party, provided that such source is not known by the receiving party to be
prohibited from disclosing such information by a contractual, legal or fiduciary
obligation. Neither Party shall disclose the Confidential Information of the
other Party to its employees except on a need-to-know basis, and the recipient
party shall be responsible for the unauthorized disclosures of Confidential
Information by its employees.
No express or implied rights or license is granted by any disclosure of
Confidential Information to the recipient party in connection with this
Agreement. The recipient party understands that the disclosing party makes no
representations or warranties, expressed or implied (including those of
merchantability and fitness for purpose) with respect to the Confidential
Information.
ARTICLE 10. INDEMNIFICATION
For purposes of this Agreement, "Losses" shall mean all losses, liabilities,
damages and costs (including taxes), and all related costs and expenses
(including reasonable outside and in-house attorneys' fees and disbursements and
costs of investigation, litigation and settlement).
The Parties agree to indemnify, defend and hold each other harmless, including
their Affiliates and respective officers, directors, employees, agents,
successorsand permitted assigns thereof from and against any and all Losses
arising out of or in connection with the use of the Licensed Content and/or
material provided by the other Party, as authorized by this Agreement, including
(but not limited to) the violation, misappropriation or infringement of any
third party's trade secrets, trademark, copyright or patent or other propriety
rights.
Xxxxxxxxx.xxx will also indemnify, defend and hold CompleteHome and its
Affiliates harmless from any administrative or judicial proceedings, or actions
relating to any claimed occurrence with respect to Xxxxxxxxx.xxx's Products
(even where CompleteHome's negligence is alleged) and any act, omission or
obligation of Xxxxxxxxx.xxx or anyone associated or affiliated with
Xxxxxxxxx.xxx or the Products. Xxxxxxxxx.xxx waives any right of recovery
against CompleteHome for any direct or indirect Loss arising out of any
occurrence relating to the Products.
This indemnification shall survive the expiration or termination of this
Agreement by either Party for any reason.
ARTICLE 11. DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS,
AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
REGARDING SUCH PARTY'S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS WELL AS
IMPLIED WARRANTIES ARISING FROM
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COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, COMPLETEHOME SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (i)
THE NUMBER OF PERSONS WHO WILL ACCESS THE ADVERTISING AND (ii) THE EXTENT OF ANY
BENEFIT XXXXXXXXX.XXX MIGHT OBTAIN FROM THE ADVERTISING ON THE PORTAL.
ARTICLE 12. FORCE MAJEURE
Neither Party will be liable for any delays in delivery and/or non-delivery of
the Services to be provided hereunder by the other due to acts of God, action by
any governmental or quasi-governmental agency, fire, flood, earthquake, strike,
network difficulties (including, but not limited to, communication line failure)
or other acts beyond the control of such Party, provided that the other Party
shall be released of its obligation to pay for any services not performed as a
result of such event.
ARTICLE 13. MISCELLANEOUS
1. Xxxxxxxxx.xxx is an independent contractor. Neither Party is the legal
representative or agent of, or has the power to obligate (or has the
right to direct or supervise the daily affairs of) the other or any
other Party for any purpose whatsoever. CompleteHome and Xxxxxxxxx.xxx
expressly acknowledge that the relationship intended by them is a
business relationship based entirely on and circumscribed by the
express provisions of this Agreement and that no partnership, joint
venture, agency, fiduciary or employment relationship is intended or
created by reason of this Agreement.
2. This Agreement or any portion thereof, shall be interpreted as if it
was prepared by both Parties hereto and no inference shall be made as
to the authorship by a particular party hereto. This Agreement shall be
governed by the laws of the State of New York. Each party hereby
consents to the personal jurisdiction of the courts of the State of New
York and the United States District Court for the Southern District of
New York and further waives objection to venue in any such court.
3. CompleteHome may at any time elect, in its sole discretion, not to
permit or appear to be uploaded any messages, data, images or programs
connected with the Licensed Content, which are libelous, defamatory,
obscene, profane, pornographic or similarly objectionable.
4. The failure of either Party to insist upon the performance of any terms
or conditions of this Agreement or to exercise any right or privilege
conferred in this Agreement or the waiver of enforcing penalties
resulting from any breach of any terms and conditions of this
Agreement, shall not be construed as waiving any such terms,
conditions, rights or privileges, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had
occurred.
5. In the event any one or more of the provisions of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the
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invalid, illegal or unenforceable provision shall be replaced by a
mutually acceptable provision, which, being valid, legal and
enforceable, comes closest to the intention of the Parties
underlying the invalid, illegal or unenforceable provision.
6. Each Party shall (a) submit to the other all advertising, written sales
promotions, press releases, and other publicity matters relating to
this Agreement in which the other Party's name or xxxx is mentioned or
which contains language from which a relationship with the other Party
may be inferred or implied and (b) not publish or use such advertising,
sales promotions, press releases or publicity matters without the other
Party's consent.
Upon execution of this Agreement, CompleteHome and Xxxxxxxxx.xxx
will issue press releases announcing the relationship contemplated
by this Agreement, in form and substances satisfactory to both
Parties. In addition, Xxxxxxxxx.xxx will be included as a partner
in subsequent press releases issued by CompleteHome.
7. Each Party shall comply with all applicable laws, regulations and court
orders in the performance of its obligations hereunder. In addition,
CompleteHome agrees that it shall not violate any law, court order,
data privacy policy or regulation in obtaining or utilizing e-mail
addresses or distributing e-mail Messages pursuant hereto.
8. Neither Party shall assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of the
other Party, which shall not be unreasonably withheld or delayed.
Subject to the foregoing, this Agreement shall be fully binding upon,
inure to the benefit of and be enforceable by the Parties hereto and
their respective successors and assigns.
9. The Agreement constitutes the entire understanding between the Parties
hereto with respect to the subject matter hereof and supersedes all
negotiations, representations, prior discussions and preliminary
agreements between the Parties hereto relating to the subject matter
hereof. Each Party has full power and authority and has been duly
authorized, to enter into and perform its respective obligations under
this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and do each hereby warrant and represent that their respective
signatory whose signature appears below has been and is on the date of this
Agreement duly authorized by all necessary and appropriate corporate action to
execute this Agreement.
XXXXXXXXXXXX.XXX, INC. XXXXXXXXX.XXX, INC.
By: /s/Xxxxxxx X. Xxxxx By: /s/Xxxxxx Xxxxx
------------------------------ --------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx Xxxxx
Title: President Title: VP, Business Development
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omission.
EXHIBIT A
[**]
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AMENDMENT
TO
BETWEEN
XXXXXXXXX.XXX, INC.
AND
XXXXXXXXXXXX.XXX, INC.,
In accordance with the terms and conditions of by and
between Xxxxxxxxx.xxx, Inc., with a place of business at 0000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 ("Xxxxxxxxx.xxx") and XxxxxxxxXxxx.xxx, Inc., with a
place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
("XxxxxxxxXxxx.xxx") (hereinafter referred to as the "Agreement"), the
parties hereto hereby agree to the following changes to the:
RECITALS
A. Whereas, Xxxxxxxxx.xxx is an online retailer of furniture and home
furnishings and maintains a Web Site on the Internet known as
xxxxxxxxx.xxx with the URL XXXX://XXX.XXXXXXXXX.XXX;
B. Whereas, XxxxxxxxXxxx.xxx operates and maintains a Web Site on the
Internet known as XxxxxxxxXxxx.xxx with the URL XXX.XXXXXXXXXXXX.XXX (the
"XxxxxxxxXxxx.xxx Site"), which, among other things, displays content
provided by its sponsors/partners;
C. Whereas, the parties entered into the dated
September 1, 1999 that provides, among other things, for Xxxxxxxxx.xxx
to supply XxxxxxxxXxxx.xxx with certain Licensed Content;
D. Whereas, such Licensed Content is specified on Exhibit A, attached hereto;
and
F. Whereas, the parties desire to amend the Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the parties hereby agree as follows:
SECTION 1. All capitalized terms used and not defined herein shall have the
same meaning ascribed to such terms in the Agreement. The defined terms in
this Amendment have the meaning as such terms are defined in the Agreement.
Except to the extent specifically modified by the terms of this Amendment,
the terms and conditions of the Agreement shall remain as originally written.
SECTION 2. DELIVERY OF LICENSED CONTENT. Upon execution of this Amendment,
Xxxxxxxxx.xxx shall promptly deliver the Licensed Content to
XxxxxxxxXxxx.xxx, in a format reasonably and mutually agreed upon by both
parties.
SECTION 3. GRANT OF LICENSE. Xxxxxxxxx.xxx hereby grants XxxxxxxxXxxx.xxx,
for the Term of the Agreement, a limited, nonexclusive, non-transferable
(except to XxxxxxxxXxxx.xxx's parent or subsidiaries) license throughout the
universe to copy, distribute, transmit, display, perform, create derivative
works and otherwise use the Licensed Content in object code form, subject to
the terms of the Agreement and this Amendment. In addition, with the prior
written consent of Xxxxxxxxx.xxx, which shall not be unreasonably withheld,
XxxxxxxxXxxx.xxx shall have the right to add to, subtract from, arrange,
rearrange, revise, modify, change and adapt the Licensed Content and any part
or element thereof. All rights under the Agreement shall be exercised by
XxxxxxxxXxxx.xxx solely to operate, maintain and make the XxxxxxxxXxxx.xxx
Web Site and the Licensed Content available to end-users. XxxxxxxxXxxx.xxx is
prohibited from duplicating and/or distributing any Licensed Content without
the prior written consent of Xxxxxxxxx.xxx, which shall not be unreasonably
withheld, provided, however that XxxxxxxxXxxx.xxx may copy the Licensed
Content only as needed for backup or disaster recovery procedures.
SECTION 4. COPYRIGHT NOTICE/ATTRIBUTION. XxxxxxxxXxxx.xxx will not remove or
conceal any copyright or other proprietary notice contained in the Licensed
Content. XxxxxxxxXxxx.xxx further agrees that it will insert on each page of
the XxxxxxxxXxxx.xxx Site that contains any Licensed Content, in close
proximity to the Licensed Content, the following notice: "Copyright [1999]
Xxxxxxxxx.xxx, Inc." Notwithstanding anything to the contrary,
XxxxxxxxXxxx.xxx shall have sole discretion as to the placement of such
notice.
SECTION 5. DISPLAY OF LOGO. Xxxxxxxxx.xxx will provide XxxxxxxxXxxx.xxx with
a graphics file containing Xxxxxxxxx.xxx's logo (the "Logo").
XxxxxxxxXxxx.xxx shall insert the Logo at the top of each page of the
XxxxxxxxXxxx.xxx Site on which the Licensed Content appears in a size not
smaller than 88 x 31 pixels. Except as specifically authorized in this
Section, XxxxxxxxXxxx.xxx shall not use Xxxxxxxxx.xxx's name or any
trademark, service xxxx or logo of Xxxxxxxxx.xxx without Xxxxxxxxx.xxx's
prior written consent.
SECTION 6. NO GRANT OF DIRECT ACCESS TO LICENSED CONTENT. XxxxxxxxXxxx.xxx
shall not encourage, and shall use commercially reasonable efforts to prevent
the placement of any direct links from any third party web site to the pages
of XxxxxxxxXxxx.xxx Site on which the Licensed Content appears.
INTENTIONALLY LEFT BLANK BY BOTH PARTIES
SECTION 7. OBJECTIONABLE MATERIAL. CompleteHome may at any time elect, in its
sole discretion, not to permit or appear to be uploaded any messages, data,
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images or programs connected with the Licensed Content, which are libelous,
defamatory, obscene, profane, pornographic or similarly objectionable.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and do each hereby warrant and represent that the respective
signatory whose signature appears below has been and is on the date of this
Amendment duly authorized by all necessary and appropriate corporate action
to execute this Amendment.
XXXXXXXXX.XXX XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxx
-------------------------- ----------------------------
Name: Xxxxx Xxxxx Name: Xxxx Xxxxxx
------------------------ --------------------------
Title: VP Business Development Title: President
----------------------- -------------------------
Date: Dec. 1, 1999 Date: 12/2/97
------------------------ --------------------------
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EXHIBIT A
LICENSED CONTENT
Licensed Consent consists of:
1. Editorial content and allied graphics presented as articles in YOUR HOME
magazine on Xxxxxxxxx.xxx.
2. Xxxxxxxxx.xxx's Room Planner and Furniture Finder tools and features.
Xxxxxxxxx.xxx and XxxxxxxxXxxx.xxx may add additional Licensed Content by
so agreeing in writing.
Xxxxxxxxx.xxx agrees that its content will be presented on XxxxxxxxXxxx.xxx
as depicted on the following page.
AMENDMENT
TO
BETWEEN
XXXXXXXXX.XXX, INC.
AND
XXXXXXXXXXXX.XXX, INC.
In accordance with the terms and conditions of by and
between Xxxxxxxxx.xxx, Inc., with a place of business at 0000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 ("Xxxxxxxxx.xxx") and XxxxxxxxXxxx.xxx, Inc., with a
place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (hereafter
referred to as "XxxxxxxxXxxx.xxx") (hereinafter referred to as the
"Agreement"), the parties hereto hereby agree to the following changes to the:
RECITALS
A. Whereas, Xxxxxxxxx.xxx is an online retailer of furniture and home
furnishings and maintains a Web Site on the Internet known as xxxxxxxxx.xxx
with the URL xxxx://xxx.xxxxxxxxx.xxx;
B. Whereas, XxxxxxxxXxxx.xxx operates and maintains a Web Site on the Internet
known as XxxxxxxxXxxx.xxx ("XxxxxxxxXxxx.xxx Site"), which, among other
things, displays content provided by its sponsors/partners;
C. Whereas, the parties entered into the dated September
1, 1999 that provides, among other things, for Xxxxxxxxx.xxx to be an
online retail residential furniture vendor of the Products as described
therein;
D. Whereas, the parties desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the Parties agree as follows:
SECTION 1: All capitalized terms used and not defined herein shall have the
same meaning ascribed to such terms in the Agreement. The defined terms in
this Amendment have the meaning as such terms are defined in the Agreement.
Except to the extent specially modified by the terms of this Amendment, the
terms and conditions of the Agreement shall remain as originally written.
-1-
SECTION 2. Article 3, SERVICES, Subsection V, Preferred Alliance, shall be
amended to reflect that the "Second period" will be extended from June 30,
2000 to the later of August 31, 2000 or six months after the date on which
the Preferred Alliance promotions begin, only for the purpose of providing
exclusive online retail residential furniture as a preferred vendor promoted
to the franchisees of the Franchisors.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and do each hereby warrant and represent that their respective
signatory whose signature appears below has been and is on the date of this
Agreement duly authorized by all necessary and appropriate corporate action
to execute this Agreement.
XXXXXXXXXXXX.XXX, INC. XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. xxxXxxxxx By: /s/ Phil Marcas
------------------------------- ------------------------------
Name: Xxxxxxx X. xxxXxxxxx Name: Phil Marcas
----------------------------- ------------------------
Title: VP Marketing Title: Chief Strategic Officer
---------------------------- -----------------------
Date: 1-16-00 Date: 1-14-00
----------------------------- ------------------------
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