DISTRIBUTION AND MARKETING AGREEMENT
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THIS DISTRIBUTION AND MARKETING AGREEMENT (the "Agreement") is entered
into as of June ___, 2000 (the "Effective Date"), between INTERNET PICTURES
CORPORATION, a Delaware corporation with an office located at 000 Xxxxxxxxxx
Xxxxxx, #000, Xxxx Xxxx, XX 00000 ("IPIX") and XXXXXXXX.XXX, a division of
ENTREPORT CORPORATION, a Florida corporation located 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxx X, Xxxxx, XX 00000 ("Company").
IPIX uses the IPIX Technology and provides the Production Services. Company
operates the Company Web site. IPIX desires to be a full-service provider of
virtual tour technology and Production Services for the Company Web site. In
consideration of the mutual promises and covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "COMPANY MEMBERSHIPS" means the memberships to Company Site offered
by Company to members of the real estate industry, including but not limited to
realtors, real estate agents, property managers, rental agents and lessors.
1.2 "COMPANY SITE" means the collection of HTML or other Internet
documents residing on servers operated by or for Company and accessible on or
after the Effective Date by Customers or the public, including without
limitation Company's Internet Web site located at xxx.xxxxxxxx.xxx.
1.3 "CONFIDENTIAL INFORMATION" means any trade secrets, confidential
data or other confidential information relating to or used in the business of
the other party (the "Disclosing Party"), that a party (the "Receiving 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 the parties disclose such information in
good faith to a legitimate potential, or actual, strategic investor, investment
banker, venture capital firm or consultant, or as necessary pursuant to statute,
regulation or other law.
1.4 "IPIX IMAGE" means an electronic image of a property produced by or
on behalf of IPIX.
1.5 "IPIX SITE" means the collection of HTML or other Internet
documents residing on servers operated by or for IPIX and accessible on or after
the Effective Date by or for the public, including without limitation IPIX's
Internet Web site located at xxx.xxxx.xxx.
1.6 "IPIX TECHNOLOGY" means software and hardware used to capture,
process and view IPIX Images.
1.7 "Online Continuing Education" means those educational activities
and courses approved for distance learning over the internet by a state's
regulatory or licensing body in connection with the implementation of a program
establishing the mandatory requirements for education of real estate agents and
brokers in each such state, typically through the award of credits based upon
hours of participation in the education activity or course.
1.8 "PRODUCTION SERVICES" means the services provided by or on behalf
of IPIX in producing IPIX Images.
1.9 "SERVICE PROVIDER NETWORK" means the network of individuals with
whom IPIX has entered into agreements to capture images at designated properties
on IPIX's behalf.
1.10 "TERM" means the Initial Term of this Agreement and the Renewal
Terms, if any, as set forth in Section 6.
1.11 "VIRTUAL TOUR IMAGES" means 360(degree), three-dimensional, video,
virtual reality, virtual tour, virtual walkthrough, streaming video tours or
other similar images, or production services for such images.
2. PROMOTION OF SERVICES.
2.1 PROMOTION BY COMPANY. During the Term, Company will promote,
endorse, and market IPIX as a provider of Virtual Tour Images.
2.2 PROMOTION BY IPIX. During the Term, IPIX will promote, endorse, and
market Company as a provider of online continuing education and online training
for licensed real estate agents and brokers.
3. MARKETING AND PROMOTION
3.1 COMPANY OBLIGATIONS. Company agrees to market, promote and
facilitate sales of the Production Services as follows:
(a) COMPANY SITE. During the term of this Agreement, Company
agrees to market and promote the Production Services provided by IPIX on the
Company Site, excluding any private-label sites. Company agrees to display an
IPIX logo and/or link in the e-commerce section of the Company Site that, when
clicked on, links to an informational "jump page", which in turn links directly
to an HTML page located at a URL supplied by IPIX that will permit Customers to
order Production Services.
(b) PRINT ADVERTISING. Company will include in print
advertising promoting Company seminars an IPIX logo and a brief, suitable
reference to the availability of the Production Services.
(c) SALES PRESENTATIONS. Company shall include an IPIX
specific advertising page in Company presentation collateral distributed at all
Company sales appointments and industry trade shows. Oral sales presentations
given by Company sales personnel shall exclusively promote the Production
Services.
(d) SEMINARS AND EVENTS. Company agrees to provide IPIX booth
space at all Company-sponsored seminars and events to be staffed by a
representative of IPIX. IPIX will be the exclusive provider of Virtual Tour
Images at such Company-sponsored seminars and events.
3.2 IPIX OBLIGATIONS. IPIX agrees to market, promote and facilitate
sales of Company Memberships as follows:
(a) SALES PRESENTATIONS. IPIX agrees to promote Company
Memberships to its clientele, including agents, brokers, MLSs, and national real
estate companies during IPIX's sales presentations and marketing workshops. To
the extent that IPIX creates print advertising or presentation materials in
connection with such presentations and workshops, IPIX will include a Company
specific advertising page in such IPIX printed materials. Oral sales
presentations given by IPIX personnel shall promote the Company Site and Company
Memberships.
(b) BROKER PARTNERSHIPS. IPIX agrees to promote Company
Memberships to existing and prospective brokers partners that purchase and
promote IPIX Virtual Tours to their sales agents. To the extent that IPIX
creates print advertising or presentation materials in connection with such
presentations and workshops, IPIX will include a Company specific advertising
page in such IPIX printed materials. Oral sales presentations given by IPIX
personnel shall promote the Company Site and Company Memberships.
(c) SALES REPRESENTATIVES. IPIX will provide a sales
representative to staff the booth space and from that location, to discuss
Internet marketing and the benefits of IPIX Virtual Tours at all
Company-sponsored events and seminars of greater than 100 attendees.
(d) NATURE OF PROMOTION. All promotion of Company by IPIX will
be done in a professional manner consistent with the Company guidelines provided
to IPIX from time to time. Company will provide IPIX with information and
materials to assist in the promotion of Company Memberships. In consideration of
the value of IPIX's sales force and efforts under this Agreement (conservatively
valued in excess of $500,000), all Company Memberships promoted by IPIX under
this Agreement will include a free ninety (90) day trial membership (the "Trial
Offer"). IPIX shall exclusively market and promote Company as a provider of
Online Continuing Education for real estate agents and brokers during the term
of this Agreement.
3.3 IPIX SITE. During the Term, IPIX agrees to include at least one (1)
link to Company Site on the IPIX Site.
3.4 ADDITIONAL OBLIGATIONS. IPIX and Company will, from time to time,
use reasonable efforts to cooperate in joint marketing efforts for the
Production Services and Company Memberships 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.
4. PROPRIETARY RIGHTS
4.1 IPIX TECHNOLOGY; IPIX IMAGES.
(a) All IPIX Technology and IPIX Images, whether or not
produced for Company Customers and whether or not linked to the Company Site,
are, and at all times will remain, the exclusive property of IPIX and its
licensors, and no provision of this Agreement implies any transfer to Company of
any ownership interest in any IPIX Technology or IPIX Images. Company will not
reproduce, distribute, modify, edit, or prepare derivative works from the IPIX
Technology or IPIX Images without the prior written permission of IPIX
(b) IPIX hereby grants to Company a nonexclusive, worldwide,
royalty-free, nontransferable license to include on the Company Site links to
the IPIX Images on IPIX's servers solely for the purposes contemplated in this
Agreement. The foregoing license does not include any right to grant or
authorize sublicenses.
4.2 TRADEMARKS.
(a) IPIX MARKS.
(i) IPIX owns and at all times will continue to own
the trademarks, service marks, logos, trade dress and/or trade names INTERNET
PICTURES, IPIX and the IPIX logo, as well as any name or xxxx IPIX may
subsequently adopt as a trade name or to designate the Production Services
(collectively, the "IPIX Marks"). Company will not take any actions inconsistent
with IPIX's ownership rights.
(ii) Subject to the restrictions set forth herein,
IPIX hereby grants Company a nonexclusive, worldwide, royalty-free, fully paid
up, nontransferable right to use the IPIX Marks, during the Term, subject to the
prior approval of IPIX, solely in connection with the promotion and marketing of
the Production Services as provided in Section 3. Company's use of the IPIX
Marks will not create in Company any right, title or interest therein or
thereto. All use by Company of the IPIX Marks will inure to the exclusive
benefit of IPIX. At IPIX's reasonable request, Company will assist IPIX with the
protection and maintenance of the IPIX Marks. Company may only use the IPIX
Marks as expressly permitted herein. Company agrees to use the IPIX Marks in a
manner commensurate with the style, appearance and quality of IPIX's services
and/or products bearing such marks.
(b) COMPANY MARKS.
(i) Company owns and at all times will continue to
own the trademarks, service marks, logos, trade dress and/or trade names
customarily used by Company during the Term (the "Company Marks"). IPIX will not
take any actions inconsistent with Company's ownership rights.
(ii) Subject to the restrictions set forth herein,
Company hereby grants IPIX a nonexclusive, worldwide, royalty-free, fully paid
up, nontransferable right to use the Company Marks, during the Term, solely in
connection with IPIX's promotion and marketing of the Company Memberships and
Production Services and IPIX's financing activities. IPIX's use of the Company
Marks will not create in IPIX any right, title or interest therein or thereto.
All use by IPIX of the Company Marks will inure to the exclusive benefit of
Company. At Company's reasonable request, IPIX will assist Company with the
protection and maintenance of the Company Marks. IPIX may only use the Company
Marks as expressly permitted herein. IPIX agrees to use the Company Marks in a
manner commensurate with the style, appearance and quality of Company's services
and/or products bearing such marks.
4.3 LIMITATION ON GRANT OF RIGHTS. Except as expressly provided herein,
neither party receives any other right or license to the technology or
intellectual property of the other party.
5. TERM AND TERMINATION
5.1 TERM. Unless earlier terminated as set forth below, this Agreement
will become effective upon the Effective Date and continue for a period of one
(1) year (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 forty-five (45)
days prior to the end of the then-current term of its intention to terminate
this Agreement as of the end of such term.
5.2 TERMINATION FOR BREACH. This Agreement will terminate in the event
a party materially breaches any material term, condition or representation of
this Agreement or materially fails to perform any of its material obligations or
undertakings hereunder, and fails to remedy such default within 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 breach is such that it
cannot reasonably be cured within 30 days and the breaching party has commenced
cure during the thirty-day notice period and diligently pursues cure of the
breach in good faith.
5.3 EFFECTS OF TERMINATION. Upon expiration or termination of this
Agreement:
(a) IPIX will cease all use of the Company Marks; and
(b) Company will cease all use of the IPIX Marks, the IPIX
Technology and the IPIX Images and shall purge all IPIX Technology and IPIX
Images from its servers.
5.4 SURVIVAL OF CERTAIN TERMS. The provisions of Sections 4.1(a),
4.2(a)(i), 4.2(b)(i), 4.3, 5.3, 5.4, 6, 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
6.1 DEGREE OF CARE. 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
7.1 Each party represents and warrants to the other that:
(a) 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;
(b) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
(c) 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
(d) 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
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
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 8 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 2.3, 2.4 OR 7, 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 IPIX and Company
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 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.
10.3 NOTICES. Any notice required or permitted by this Agreement will
be deemed given if sent by prepaid overnight courier, 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 one (1) day
after deposit with the overnight courier.
10.4 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
failure to perform is beyond the control and not caused by the gross negligence
or willful misconduct of the non-performing party
10.5 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.
10.6 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.
10.7 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.
10.8 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.
10.9 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.
10.10 GOVERNING LAW.This Agreement shall be construed in accordance
with the laws of the State of California and the parties agree to submit to
personal jurisdiction and venue in the appropriate courts of the State of
California.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
INTERNET PICTURES CORPORATION XXXXXXXX.XXX, A DIVISION OF
ENTREPORT CORPORATION
/s/ illegible /s/ Xxxxxxx X. Xxxx
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By: By: Xxxxxxx X. Xxxx
------------------------------- Title: President
Title:
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