Exhibit 10.47
July 27, 1999
STRATEGIC ALLIANCE AGREEMENT
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THIS STRATEGIC ALLIANCE AGREEMENT (the "Agreement") is entered into as of
July 27, 1999 (the "Effective Date"), between xxxxxx.xxx, Inc., a Delaware
corporation ("xxxxxx.xxx") with an office located at 000 Xxxxxxxxxx Xxxxxx, Xxxx
Xxxx, XX 00000, and Data Management Services, a division of Xxxxx North America,
Inc., a Delaware corporation, with an office located at 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000, Xxxxxxxxxxx XX, 00000 ("Xxxxx").
Xxxxxx.xxx uses the Xxxxxx.xxx Technology and provides the Production Services.
Xxxxx operates the Xxxxx Database and develops and markets Xxxxx Products.
Xxxxxx.xxx desires to be the preferred provider of virtual tour technology and
production services for the Xxxxx Database. In consideration of the mutual
promises and covenants contained herein, and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS
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1.1 "Xxxxxx.xxx Image" means an electronic image of a Property produced by
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or on behalf of xxxxxx.xxx.
1.2 "Xxxxxx.xxx Technology" means Xxxxxx.xxx Images and software and
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hardware used to capture, process and view Xxxxxx.xxx Images.
1.3 "Basic Package" means up to four scenes captured in a designated
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Property, converted into a corresponding number of Xxxxxx.xxx Images and
linked to appropriate listings on the Xxxxx Database.
1.4 "Confidential Information" means any trade secrets, confidential data
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or other confidential information oral or written relating to or used in the
business of the other party (the "Disclosing Party"), that a party may obtain
from the Disclosing Party during the Term (the "Confidential Information"). The
terms of this Agreement will constitute Confidential Information, except to the
extent that xxxxxx.xxx or Xxxxx discloses such information in good faith to a
legitimate potential, or actual, strategic investor, investment banker, venture
capital firm or consultant, or as required by statute, regulation or other law.
1.5 "Xxxxx Customer" means an MLS association or board or a corporation
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which licenses Xxxxx Products and/or stores residential listings information
on the Xxxxx Database.
1.6 "Xxxxx Database" means the collection of data and documents residing on
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servers operated by or for Xxxxx or its affiliates or a Xxxxx Customer and
accessible on or after the Effective Date by Xxxxx Subscribers via the Xxxxx
Products, to the extent Xxxxx makes such collection generally available, to
Xxxxx Subscribers via the Internet.
1.7 "Xxxxx Products" means Xxxxx'x MLS/Xplorer products, as further defined
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in Exhibit A attached hereto, including without limitation all future upgrades
and versions of such software, whether or not marketed by Xxxxx under a
different name, that Xxxxx Subscribers use to access listings.
1.8 "Xxxxx Originated Order" means any order received by xxxxxx.xxx for a
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Basic Package or Upgrade Package placed by a Xxxxx Subscriber via a Xxxxx
Product.
1.9 "Xxxxx Subscriber" means any realtor, real estate broker, real estate
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agent or any other agent or representative acting in a similar capacity, whether
an individual or some other type of entity, representing a seller of a Property
that has access to the Xxxxx Database and Xxxxx Products.
1.10 "Initial Linking Date" means the date on which xxxxxx.xxx will commence
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providing Production Services and Xxxxx will begin receiving links of Xxxxxx.xxx
Images under this Agreement, as further provided in Section 2.2.
1.11 "Listing Search Results Screen" means the screen within a Xxxxx Product
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displaying the results of a search of listings in the Xxxxx Database.
1.12 "Net Revenues" means the gross amount received by xxxxxx.xxx from Xxxxx
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Subscribers for sales of the Basic Packages and Upgrade Packages less sales tax
or other governmental charges.
1.13 "Production Services" means the services provided by or on behalf of
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xxxxxx.xxx in preparing the Basic Packages and Upgrade Packages.
1.14 "Property" means any piece of residential, commercial or unimproved
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real estate within the Territory, including without limitation new homes,
offered for sale or resale.
1.15 "Service Provider Network" means the network of videographers
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throughout the Territory with whom xxxxxx.xxx has entered into agreements to
capture images at designated sites on xxxxxx.xxx's behalf.
1.16 "Term" means the Initial Term of this Agreement and the Renewal Terms,
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if any, as set forth in Section 5.
1.17 "Territory" means the United States and its possessions and Canada
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(excluding the Toronto Real Estate Board - TREB).
1.18 "Transaction Fee" means the quarterly fee xxxxxx.xxx will pay to Xxxxx
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during the Term based on sales of Basic Packages and Upgrade Packages as
provided in Section 3.1.
1.19 "Upgrade Package" means an addition to a Basic Package consisting of
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one additional scene captured at the same designated Property of the Basic
Package, converted into one additional Xxxxxx.xxx Image for the scene captured
and linked to the Xxxxx Database.
1.20 "Virtual Tour Images" means 360, three-dimensional, virtual reality,
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virtual tour, virtual walkthrough or other similar images, or production
services for such images.
2. PROVISION OF PRODUCTION SERVICES; PREFERRED VENDOR STATUS
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2.1 Sales and Billing. Xxxxxx.xxx will be responsible for receiving and
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fulfilling orders for Basic Packages and Upgrade Packages. Xxxxxx.xxx will
assume all costs and responsibility for invoicing and collecting revenues for
all sales of Basic Packages and Upgrade Packages.
2.2 Image Capturing, Processing and Linking. The parties will work
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together to implement a system whereby Xxxxx will be capable of linking
Xxxxxx.xxx Images to the appropriate Property listing on the Xxxxx Database.
The parties will work together on file naming formats and scripts that will
link Xxxxxx.xxx Images on the Xxxxx Database and a method to indicate the
originating Xxxxx Customer. Xxxxxx.xxx and Xxxxx agree to set September 30,
1999 as the target for the Initial Linking Date. Xxxxxx.xxx will have sole
responsibility for, and will bear all costs associated with, capturing images
at designated sites through
its Service Provider Network, processing captured images to create Xxxxxx.xxx
Images and providing links to Xxxxxx.xxx Images to the Xxxxx Database for
display on the Xxxxx Products. Xxxxx will permit such links and will work with
xxxxxx.xxx to maintain throughout the Term the ability of the Xxxxx Database
to receive such links, and the ability of the Xxxxx Products to incorporate
and display xxxxxx.xxx Images, including without limitation in Listing Search
Results Screens. In addition the parties will work together to expeditiously
integrate xxxxxx.xxx Virtual Tour Images into the Publish Function of the
Xxxxx Products so that web pages created for a particular listing being called
by the Publish Function will automatically display a link to the corresponding
xxxxxx.xxx Virtual Tour Images for the particular property. The parties agree
that, in consideration of the linking integration services Company will
perform hereunder, xxxxxx.xxx will pay Company, within thirty (30) days after
the Initial Linking Date, a one-time fee (the "Linking Integration Fee") of no
less than $20,000 and no more than $30,000, representing fifty percent (50%)
of the integration costs described with specificity in a detailed statement of
work from Company (the "Statement of Work"). In the event that the integration
costs set forth in the Statement of Work exceed $60,000, the parties shall
cooperate to arrive at a cost quote that is mutually acceptable. If the
parties fail to agree on such mutually acceptable cost quote, then xxxxxx.xxx
will provide written notice of such failure to Company, and Company agrees not
to enter into any agreement with any third party to provide Virtual Tour
Images for the Xxxxx Products within sixty (60) days following the receipt of
such notice from xxxxxx.xxx. The Linking Integration Fee will be non-
refundable. Xxxxxx.xxx understands that Company expects to implement one
standard integration solution for all Xxxxx Customers in fulfillment of its
integration obligations hereunder. Accordingly, xxxxxx.xxx will not enter into
a contract with any Xxxxx Customer during the Term that will require
alternative customization of the Xxxxx Products for the display of Xxxxxx.xxx
Images.
2.3 Xxxxxx.xxx Support. Xxxxxx.xxx will establish and maintain a "mailto"
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link on the Xxxxx Products that Xxxxx Subscribers may use to send support-
related e-mail messages to xxxxxx.xxx. Xxxxxx.xxx will also establish and
maintain a toll-free support telephone line Xxxxx Subscribers may call with
support questions. The hours of operation for the support telephone line and
for monitoring and responding to support-related e-mail messages will be
business days (excluding bank holidays) from 9:00 am to 8:00 pm Eastern time.
The parties agree to include the xxxxxx.xxx "mailto" link and the number for the
toll-free support line on all Xxxxx Order Pages (as defined below) and any page
in the Xxxxx Database displaying a Xxxxxx.xxx Image. At its sole expense,
xxxxxx.xxx will expeditiously resolve all support issues arising in connection
with provision of the Production Services hereunder. Xxxxxx.xxx understands
that Xxxxx Customers expect and receive a high level of service from Company,
and xxxxxx.xxx will use commercially reasonable efforts to provide a
commensurate level of service to Xxxxx Customers in connection with its
provision of the Production Services.
2.4 Preferred Vendor Status.
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(a) During the Term, Xxxxx will not directly or indirectly (i)
promote or market itself or any third party, on the Xxxxx Database, the Xxxxx
Products or elsewhere, as a provider of Virtual Tour Images; (ii) provide the
services of capturing or processing Virtual Tour Images; (iii) use the
services of, or enter into any arrangement under which services will be
provided by, any third party with respect to capturing or processing Virtual
Tour Images; (iv) permit any Virtual Tour Images (other than those supplied by
xxxxxx.xxx) or any site or identity of a third party provider of Virtual Tour
Images, or technology or services therefor, to be posted to, linked to or
otherwise made accessible through the Xxxxx Database or Xxxxx Products; or (v)
take any other action inconsistent with the parties' understanding hereunder
that xxxxxx.xxx will act as the preferred provider of Virtual Tour Images, and
production services therefor.
(b) Notwithstanding the foregoing, nothing in this Agreement is
intended or shall be construed to limit the ability of any Xxxxx Customer
directly or indirectly to (i) promote or market itself or any third party, on
the Xxxxx Products, the Xxxxx Database or elsewhere, as a provider of Virtual
Tour Images; (ii) provide the services of capturing or processing Virtual Tour
Images; (iii) use the services of, or enter into any arrangement under which
services will be provided by, any third party with respect to capturing or
processing Virtual Tour Images; or (iv) permit any Virtual Tour Images or any
site or identity of a third party provider of Virtual Tour Images, or
technology or services therefor, to be posted to, linked to or otherwise made
accessible through the Xxxxx Database.
2.5 Xxxxx Marketing and Promotion Obligations. Xxxxx represents that each
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Xxxxx Database is proprietary to an applicable Xxxxx Customer. Xxxxxx.xxx
understands and agrees that, prior to xxxxxx.xxx or Xxxxx offering any
Production Services to Xxxxx Subscribers that are members of any Xxxxx Customer,
Xxxxx must obtain the prior approval of such Xxxxx Customer. Xxxxx agrees to
use commercially reasonable efforts to obtain such prior approval. Subject to
the foregoing, Xxxxx agrees to market, promote and facilitate sales of the
Production Services as follows:
(a) Xxxxx Products. It is Xxxxx'x intent to ensure prominent
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promotion of the Production Services. Specific placement is subject to final
technical review and analysis. The prominence of such promotion is exemplified
in Exhibit B. Examples in Exhibit B are for illustrative purposes only.
Subject to Section 2.4 Xxxxx agrees to prominently market and promote the
Production Services on the Xxxxx Products. Such marketing and promotion will
include the following subject to the qualifications set forth above.
(i) on the "application selection menu" screen that is first
accessed by Xxxxx Subscribers using the Xxxxx Products, prominent display of
the xxxxxx.xxx logo, located above the fold (i.e., visible to an end user
without scrolling or navigation on a 640 by 480 pixel page), that is at least
as prominent in size, usage and placement as buttons or links for any other
products or services of third parties appearing in such Xxxxx Product and
that, when clicked on, links directly to an Xxxxx Order Page set forth in
Section 2.7;
(ii) on each page of the Xxxxx Products which incorporates
the link for displaying of Xxxxxx.xxx Images, inclusion of a prominent
xxxxxx.xxx logo that, when clicked on, links directly to a Xxxxx Order Page.
(iii) in the listing input screens of each Xxxxx Product,
inclusion of a link to an HTML page located at a URL supplied by xxxxxx.xxx that
will permit Xxxxx Subscribers to order Production Services;
(iv) inclusion of a xxxxxx.xxx logo and a suitable
description of the availability of Production Services in email sent to Xxxxx
Subscribers on updates and/or revisions to the Xxxxx Products implemented
throughout the Term at Xxxxx'x sole discretion; and
(v) in the Listing Search Results Screen, and in Web pages
that are generated by the Publish Function available in Xxxxx Products, a
field named "xxxxxx.xxx Virtual Home Tour" for every listing, which displays
the link to the Xxxxxx.xxx Images if the Property has corresponding Xxxxxx.xxx
Images.
(b) Print Advertising. To the extent Xxxxx creates and distributes
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print advertising promoting third-
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party products and services available through Xxxxx Products, including print
advertising in magazines, flyers, newsletters and general mailings, Xxxxx will
include in such advertising a xxxxxx.xxx logo and a brief, suitable reference
to the availability of the Production Services at Xxxxx'x sole discretion.
Notwithstanding the foregoing, Xxxxx will include a xxxxxx.xxx logo and
suitable reference in at least 4 executive newsletters to Xxxxx Customers, and
2 quarterly MLS newsletters to Xxxxx Subscribers during the Term.
(c) Email and Direct Marketing. Xxxxx agrees to include in email and
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direct marketing that it generates from time to time, including without
limitation, Xxxxx'x "Tip of the Week Greetings "a section, reasonably
satisfactory to xxxxxx.xxx, highlighting the availability and features of the
Production Services. In addition, Xxxxx will permit xxxxxx.xxx to post email
messages, written by xxxxxx.xxx, and containing marketing information
regarding the Production Services, through servers controlled by Xxxxx to the
extent that Xxxxx distributes an email newsletter promoting third-party
products and services available through Xxxxx Products, and to the extent that
Xxxxx approves the content of such email, which approval shall not be
unreasonably withheld or delayed and may also be subject to the approval of a
Xxxxx Customer.
(d) Seminars. To the extent Xxxxx deems appropriate in its sole
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discretion, Xxxxx will invite xxxxxx.xxx to speak and promote its Production
Services at appropriate seminars and training sessions Xxxxx conducts for
Xxxxx Customers and/or Xxxxx Subscribers during the Term. Xxxxx or its sales
representatives will distribute to Xxxxx Customers and Xxxxx Subscribers at
seminars and training sessions subscription forms and marketing materials
created by xxxxxx.xxx that promote the Production Services. Xxxxx will
distribute xxxxxx.xxx information and marketing materials promoting the
Production Services, which will be provided by xxxxxx.xxx, in all training
kits distributed to MLS Customers and Xxxxx Subscribers or to MLS/Xplorer
trainers. Xxxxx will also invite xxxxxx.xxx representatives to at least two
(2) national sales meetings for the purpose of training Xxxxx sales staff on
the Production Services.
(e) Trade Shows and Conferences. To the extent that Xxxxx displays
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Xxxxx Products and products and services provided by third-parties and
available through Xxxxx Products at trade shows and conferences throughout the
Term, and at the sole discretion of Xxxxx, Xxxxx will provide a demonstration
of the xxxxxx.xxx Images within the Xxxxx Products as appropriate for the type
and purpose of trade show. Notwithstanding the foregoing, Xxxxx will
demonstrate Xxxxxx.xxx Images at the NAR MidYear show and NAR Annual
Convention during the Term. In addition, Xxxxx will make available the
demonstration of Xxxxxx.xxx Images from Xxxxx'x sales demonstration sites for
use during Xxxxx Customer, Xxxxx Subscriber and real estate agent
demonstrations.
(f) List of Xxxxx Customers. Within two (2) weeks of the Effective
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Date and on a quarterly basis throughout the Term, Xxxxx will provide xxxxxx.xxx
with a list of Xxxxx Customers. Such list of Xxxxx Customers shall constitute
Confidential Information, and xxxxxx.xxx will only use such list for promotion
of the Production Services as provided herein.
2.6 Additional Obligations. Xxxxxx.xxx and Xxxxx will, from time to time,
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use reasonable efforts to cooperate in joint marketing efforts for the
Production Services on such terms and conditions as are mutually agreed. Each
party will assign a project manager to act as the primary liaison with respect
to the relationship provided for hereunder, and all discussions between the
parties with respect to the respective performance of obligations hereunder
will be conducted by these project managers or their designees.
2.7 Xxxxx Order Pages. Xxxxx and xxxxxx.xxx will mutually agree on the
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design of HTML pages located at a URL supplied by xxxxxx.xxx that will permit
Xxxxx Subscribers to order Production Services ("Xxxxx Order Page"), and
neither party's consent shall be unreasonably withheld or delayed. The Xxxxx
Order Page will have all the data entry fields required for a Xxxxx Subscriber
to place an order for Production Services and for xxxxxx.xxx to fulfill and
charge for the ordered Production Services. No links will be placed on the
Order Page without Xxxxx'x approval which will not be unreasonably withheld or
delayed.
3. FEES
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3.1 Transaction Fees. During the Term, xxxxxx.xxx will pay quarterly
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Transaction Fees to Xxxxx as follows:
(a) With respect to all Xxxxx Originated Orders fulfilled by
xxxxxx.xxx during the Term through which Xxxxxx.xxx Images are linked to the
Xxxxx Database, xxxxxx.xxx will pay to Xxxxx for each calendar quarter the
greater of (i) $2.00 per Basic Package so sold during the quarter for which
payment has been received or (ii) 2% of Net Revenues collected from sales of
Basic Packages and Upgrade Packages so sold during the quarter.
(b) No Transaction Fees will be due hereunder (i) with respect to
Production Services sold to third parties other than as expressly set forth
above and (ii) with respect to any Production Services xxxxxx.xxx distributes on
a promotional basis free of charge and (iii) with respect to Production Services
sold by third parties which are linked to the Xxxxx Database and displayed by
Xxxxx Products.
3.2 Payment of Fees. Calculation of quarterly Transaction Fees will
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commence immediately for the calendar month in which the Initial Linking Date
occurs. Xxxxxx.xxx will make all payments of Transaction Fees net thirty (30)
days from the end of each quarter. To the extent the parties have not
implemented a system to automatically track the originating Xxxxx Customer for
each order of Production Services, xxxxxx.xxx will include with each payment of
Transaction Fees a report stating such information for orders covered by such
payment.
3.3 Inspection of Records. Xxxxx will have the right, at its own expense
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and not more than once in any twelve (12) month period, to authorize an
independent auditor reasonably acceptable to both parties to inspect those
accounting records of xxxxxx.xxx necessary to verify the accuracy of fees paid
or invoiced by xxxxxx.xxx under the terms of this Agreement, provided that such
independent auditor has executed a confidentiality agreement with respect to
such records that is reasonably acceptable to xxxxxx.xxx. Such inspections will
take place during xxxxxx.xxx's normal business hours, upon not less than twenty
(20) days' prior written to xxxxxx.xxx and on a date mutually agreed upon by the
parties. In the event such auditors find an underpayment in Transaction Fees
paid to Xxxxx of more than ten (10%) of the total Transaction Fees due and
payable to Xxxxx for the period at issue, xxxxxx.xxx shall pay such shortfall to
Xxxxx immediately and shall reimburse Xxxxx for the cost of such audit. In the
event such auditors find an underpayment in Transaction Fees paid to Xxxxx of
less than ten (10%) of the total Transaction Fees due and payable to Xxxxx for
the period at issue, xxxxxx.xxx shall pay such shortfall to Xxxxx immediately
but shall not reimburse Xxxxx for the cost of such audit.
4. PROPRIETARY RIGHTS
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4.1 Xxxxxx.xxx Technology.
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(a) All Xxxxxx.xxx Technology, including without limitation the
Software and all Xxxxxx.xxx Images, whether or not produced for Xxxxx
customers and whether or not
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posted to or linked to the Xxxxx Database and/or Xxxxx Products, are, and at
all times will remain, the exclusive property of xxxxxx.xxx, and no provision
of this Agreement implies any transfer to Xxxxx of any ownership interest in
any such Xxxxxx.xxx Technology.
(b) Xxxxxx.xxx hereby grants to Xxxxx a nonexclusive, worldwide,
royalty-free, nontransferable license to include links to Xxxxxx.xxx Images on
the Xxxxx Database and/or Xxxxx Products solely for the purposes contemplated
in this Agreement (i) during the Term and (ii) following termination or
expiration of this Agreement until one (1) year after the date of such
termination or expiration. Xxxxx will not distribute, modify, edit, or prepare
derivative works from the Xxxxxx.xxx Images without the prior written
permission of xxxxxx.xxx. The foregoing license does not include any right to
grant or authorize sublicenses.
4.2 Trademarks.
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(a) Xxxxxx.xxx Marks.
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(i) Xxxxxx.xxx owns and at all times will continue to own
the trademarks, service marks and/or trade names XXXXXX.XXX and the xxxxxx.xxx
logo, as well as any name or xxxx xxxxxx.xxx may subsequently adopt as a trade
name or to designate the Production Services (collectively, the "Xxxxxx.xxx
Marks"). Xxxxx will not take any actions inconsistent with xxxxxx.xxx's
ownership rights.
(ii) Subject to the restrictions set forth herein, xxxxxx.xxx
hereby grants Xxxxx a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Xxxxxx.xxx Marks, during the Term, subject to
the prior approval of xxxxxx.xxx, solely in connection with promotion and
marketing of the Production Services as provided in Section 2.5. Xxxxx'x use
of the Xxxxxx.xxx Marks will not create in Xxxxx any right, title or interest
therein or thereto. All use by Xxxxx of the Xxxxxx.xxx Marks will inure to the
exclusive benefit of xxxxxx.xxx. At xxxxxx.xxx's reasonable request, Xxxxx
will assist xxxxxx.xxx with the protection and maintenance of the Xxxxxx.xxx
Marks. Xxxxx may only use the Xxxxxx.xxx Marks as expressly permitted herein.
Xxxxx agrees to use the Xxxxxx.xxx Marks in a manner commensurate with the
style, appearance and quality of xxxxxx.xxx's services and/or products bearing
such marks.
(b) Xxxxx Marks.
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(i) Xxxxx owns and at all times will continue to own the
trademarks, service marks and/or trade names customarily used by Xxxxx during
the Term (the "Xxxxx Marks"). Xxxxxx.xxx will not take any actions
inconsistent with Xxxxx' ownership rights. Xxxxx maintains the right to
change, at anytime, the Xxxxx Marks under which the Xxxxx Products are being
sold.
(ii) Subject to the restrictions set forth herein, Xxxxx
hereby grants xxxxxx.xxx a nonexclusive, worldwide, royalty-free, fully paid
up, nontransferable right to use the Xxxxx Marks, during the Term, subject to
the prior approval of Xxxxx, solely in connection with financing activities
and with promotion and marketing of the Production Services. Xxxxxx.xxx's use
of the Xxxxx Marks will not create in xxxxxx.xxx any right, title or interest
therein or thereto. All use by xxxxxx.xxx of the Xxxxx Marks will inure to the
exclusive benefit of Xxxxx. At Xxxxx'x reasonable request, xxxxxx.xxx will
assist Xxxxx with the protection and maintenance of the Xxxxx Marks.
Xxxxxx.xxx may only use the Xxxxx Marks as expressly permitted herein.
Xxxxxx.xxx agrees to use the Xxxxx Marks in a manner commensurate with the
style, appearance and quality of Xxxxx'x services and/or products bearing such
marks.
4.3 Limitation on Grant of Rights. Except as expressly provided herein,
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neither party receives any other right or license to the technology or
intellectual property of the other party.
5. TERM AND TERMINATION
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5.1 Term. Unless earlier terminated as set forth below, this Agreement
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will become effective upon the Effective Date and continue for a period of
eighteen (18) months measured from the Initial Linking Date (the "Initial
Term"). Thereafter, this Agreement will be automatically renewed for
successive one (1) year periods (each such period a "Renewal Term") unless
either party notifies the other in writing not less than ninety (90) days
prior to the end of the then-current term of its intention to terminate this
Agreement as of the end of such term. Notwithstanding anything contained
herein to the contrary, in the event certain agreements, between Xxxxx and
Xxxxx Customers (collectively, the "Xxxxx Customer Agreements"), remain in
force following the expiration of the Term, xxxxxx.xxx and Xxxxx agree that
they will negotiate in good faith to enter into a limited agreement under
which xxxxxx.xxx will continue to provide the Production Services to such
Xxxxx Customers for the balance of the terms of the Xxxxx Customer Agreements.
Such limited agreement shall take into account the technologies then being
offered by xxxxxx.xxx to MLS Companies and shall provide for an appropriate
transaction fee.
5.2 Termination of Preferred Vendor Status. Notwithstanding anything to
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the contrary in this Agreement, Xxxxx may terminate any or all of its
obligations to give xxxxxx.xxx preferred vendor status under Section 2.4 at
any time after the sixth month following the Initial Linking Date. During the
remainder of the Term, Xxxxx will ensure that any marketing or promotional
materials Xxxxx generates, of the kind described in Section 2.5, including
without limitation on the Xxxxx Database or within the Xxxxx Products, that
refer to Virtual Tour Images or any third-party producer of Virtual Tour
Images, will include a reference to xxxxxx.xxx and the Production Services at
least as prominent, in size and placement, as any reference to any third-party
Virtual Tour Images or any third party producer of Virtual Tour Images.
5.3 Termination for Breach. This Agreement will terminate in the event a
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party materially breaches any material term, condition or representation of
this Agreement or materially fails to perform any of its material obligations
or undertakings hereunder, and fails to remedy such default within thirty (30)
days after being notified by the non-breaching party of such breach or
failure; provided, however, that the non-breaching party will not unreasonably
withhold or delay its consent to extend the cure period if the breaching party
has commenced cure during the sixty-day notice period and pursues cure of the
breach in good faith.
5.4 Effects of Termination for Breach. Upon expiration or termination of
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this Agreement:
(a) Xxxxxx.xxx will cease all use of the Xxxxx Marks;
(b) Commensurate with the quality of services provided prior to such
expiration or termination, xxxxxx.xxx will continue to provide Production
Services and support to third parties who purchased such Production Services
prior to such expiration or termination;
(c) Xxxxx will cease all use of the Xxxxxx.xxx Marks, the Xxxxxx.xxx
Technology and the Xxxxxx.xxx Images and shall purge all Xxxxxx.xxx Technology
and Xxxxxx.xxx Images from its servers; provided, however, that, following any
expiration or termination, the licenses granted above under Section 4.1 shall
survive as provided in Section 4.1(b).
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(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
5.5 Survival of Certain Terms. The provisions of Sections 4.1(a),
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4.2(a)(i), 4.2(b)(i), 4.3, 5.4, 7, 8, 9, and 10 will survive the expiration or
termination of this Agreement for any reason. All other rights and obligations
of the parties will cease upon expiration or termination of this Agreement.
6. CONFIDENTIALITY
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Each party agrees to treat the other party's Confidential Information with the
same degree of care as it maintains its own information of a similar nature.
Without limiting the foregoing, each party will use at least the same procedures
and degree of care which it uses to protect the confidentiality of its own
confidential information of like importance, and in no event less than
reasonable care.
7. REPRESENTATIONS AND WARRANTIES
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7.1 Each party represents and warrants to the other that:
(a) Neither party's products or services will infringe on the
proprietary rights of the other Party;
(b) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation set forth above
and is duly qualified and authorized to do business as a foreign corporation
in good standing in all jurisdictions in which the nature of its assets or
business requires such qualification;
(c) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
(d) its execution, delivery and performance of this Agreement have
been duly and properly authorized by all necessary actions and this Agreement
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms; and
(e) its execution, delivery and performance of this Agreement will
not, with or without the giving of notice or passage of time, or both,
conflict with, or result in a default or loss of rights under, any provision
of its certificate of incorporation or by-laws or any other material agreement
or understanding to which it is a party or by which it or any of its material
properties may be bound.
7.2 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE
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ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT.
8. INDEMNIFICATION
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8.1 Each party (the "Indemnifying Party") will indemnify, defend and hold
harmless the other party and its officers, directors, agents, employees,
successors and permitted assigns (hereinafter collectively the "Indemnified
Party") from and against any and all losses, claims, suits, proceedings,
liabilities, expenses (including reasonable attorneys' fees and expenses),
causes of action, damages and costs (collectively "Claims") arising out of or
in connection with the breach, potential breach or inaccuracy of, or failure
to comply with, any of the representations and warranties contained in Section
7 on the part of the indemnifying Party.
8.2 Any Indemnified Party entitled to indemnification under this Section
will give prompt notice to the indemnifying Party of any Claim with respect to
which it seeks indemnification, but the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability except to the
extent that it is actually prejudiced by such delay. The Indemnifying Party
shall assume, at its sole cost and expense, the defense of such Claim with
counsel reasonably satisfactory to the Indemnified Party. The Indemnifying
Party will not be subject to any liability for any settlement made without its
consent. The Indemnifying Party shall not, without consent of the Indemnified
Party, effect any settlement or discharge or consent to the entry of any
judgment, unless such settlement or judgment includes as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
general release from all liability in respect of such claim or litigation.
9. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 9 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION
2.4 OR 6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS
OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
10. GENERAL PROVISIONS
-------------------
10.1 Independent Contractors. The relationship of xxxxxx.xxx and Xxxxx
-----------------------
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed to (i) give either party the
power to direct and control the day-to-day activities of the other, (ii)
constitute the parties as partners, joint venturers, co-owners or otherwise as
participants in a joint undertaking, or (iii) allow either party to create or
assume any obligation on behalf of the other for any purpose whatsoever. All
financial and other obligations associated with a party's business are the
sole responsibility of that party.
10.2 Press Plans. The parties agree to participate in a joint press
-----------
announcement regarding the relationship entered into hereunder that will take
place on a mutually agreed upon date. The parties shall agree to the form and
content of the joint press release. Either party may issue its own press
release, subject to the other party's prior approval, not to be unreasonably
withheld, of the content within the release. Each party will furnish its
written acceptance of or objection to any proposed announcement within forty-
eight (48) hours.
10.3 Governing Law. This Agreement will be governed by and construed under
-------------
the laws of the State of California without reference to conflict of laws
principles.
10.4 Entire Agreement. This Agreement sets forth the entire agreement and
----------------
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by the party to be charged.
10.5 Notices. Any notice required or permitted by this Agreement will be
-------
deemed given if sent by registered mail, postage prepaid, addressed to the
other party at the address set forth above or at such other address for which
such party gives notice hereunder. Delivery will be deemed effective three (3)
days after deposit with postal authorities.
10.6 Force Majeure. Nonperformance of either party will be excused to the
-------------
extent that performance is rendered impossible by storm, lockout or other
labor trouble, riot, war, rebellion, strike, fire, flood, accident or other
act of God, governmental acts, orders or restrictions, or any other reason
where
-5-
failure to perform is beyond the control and not caused by the gross
negligence or willful misconduct of the non-performing party.
10.7 Non-Assignability and Binding Effect. Except as expressly provided
------------------------------------
herein, this Agreement may not be assigned or transferred, or may any right or
obligation hereunder be assigned or delegated, to a third party by either
party without the prior written consent of the other party hereto.
Notwithstanding the foregoing, either party may assign this Agreement or
assign or delegate its rights and obligations under this Agreement to a
successor to all or substantially all of its business or assets relating to
this Agreement whether by sale, merger, operation of law or otherwise. Subject
to the foregoing, this Agreement will be binding upon and inure to the benefit
of the parties hereto, their successors and assigns.
10.8 Modification; Waiver. No modification of or amendment to this
--------------------
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by the party to be charged, and the waiver
of any breach or default will not constitute a waiver of any other right
hereunder or any subsequent breach or default.
10.9 Headings. The headings to the sections and subsections of this
--------
Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
10.10 Severability. In the event that it is determined by a court of
------------
competent jurisdiction as part of a final nonappealable ruling, government
action or binding arbitration, that any provision of this Agreement (or part
thereof) is invalid, illegal, or otherwise unenforceable, such provision will
be enforced as nearly as possible in accordance with the stated intention of
the parties, while the remainder of this Agreement will remain in full force
and effect and bind the parties according to its terms. To the extent any
provision (or part thereof) cannot be enforced in accordance with the stated
intentions of the parties, such provision (or part thereof) will be deemed not
to be a part of this Agreement.
10.11 Counterparts; Facsimile Signatures. This Agreement may be executed
----------------------------------
by exchange of signature pages by facsimile and/or in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX.XXX, INC. DATA MANAGEMENT SERVICES,
A DIVISION OF XXXXX NORTH AMERICA, INC.
By:______________________________ By:______________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
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EXHIBIT A
---------
DESCRIPTION OF XXXXX PRODUCTS
Provided by Xxxxxx Xxxxxx. Includes 2 pages titled "Product Definition,
MLS/Xplorer Version 1.0" dated 02/17/99. (See Attached)
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EXHIBIT B
---------
XXXXXX.XXX LOGO AND LINK PLACEMENT ILLUSTRATIONS
Delivered via 12 page fax (including cover) from Xxxxxx Xxxxxx to Xxxxxx Field.
Fax contains printouts of screen shots of MLS/Xplorer product with illustrations
and notations by Xxxxxx Xxxxxx and is marked 06/26/1999. (See Attached)
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