EXHIBIT 10.28
EXECUTION DRAFT
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of June 3, 1999 (the "Effective Date"), between xxxxxx.xxx, Inc., a
Delaware corporation with an office located at 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx,
XX 00000 ("xxxxxx.xxx"), and Northside Realty, a Georgia corporation with an
office located at 0000 Xxxxxxx Xx., Xxxxxxx, XX 00000 ("Company").
Xxxxxx.xxx and Company, 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, agree as follows (definitions appear
in Additional Terms and Conditions):
1. In-Office Presentation Offer. Xxxxxx.xxx will make the following
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promotional offer (the "Offer") available to Company's Sales Agents through a
xxxxxx.xxx account representative during in-office presentations, and such Offer
will only be available on the day of such presentations and one Offer per
customer. The Offer will be available through [*]. Sales Agents must supply
listings by [*]. "Basic Package" means four scenes captured at a designated
property placed on xxxx://xxx.xxxxxxxxxxxxxxx.xxx.
Buy Price Bonus
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3 Basic Packages $ [*] [*] free scenes and each tour placed on Northside Realty and Xxxxxxx.xxx
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5 Basic Packages $ [*] [*] free Basic Package and each tour placed on Northside Realty and Xxxxxxx.xxx
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10 Basic Packages $ [*] [*] free Basic Packages and each tour placed on Northside Realty and Xxxxxxx.xxx
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20 Basic Packages $ [*] [*] free Basic Packages and [*] free scenes and each tour placed on Northside Realty and Xxxxxxx.xxx
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2. Xxxxxx.xxx Service. Xxxxxx.xxx will be responsible for receiving orders
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and invoicing and collecting revenues for sales of Production Services.
Xxxxxx.xxx will capture images at designated sites through its Service Provider
Network and process captured images to create Xxxxxx.xxx Images. Company will
permit linking of the Company Site to Xxxxxx.xxx Images, and the parties will
use best efforts to work together to implement this system within fourteen (14)
days of the Effective Date and maintain the system throughout the Term of this
Agreement. Additionally, Company will use commercially reasonable efforts to
link each such Xxxxxx.xxx Image to the appropriate listings on the Company Sites
by the end of the business day following the day xxxxxx.xxx makes such
Xxxxxx.xxx Image available on the xxxxxx.xxx server. Xxxxxx.xxx will use
commercially reasonable efforts to process and post each Xxxxxx.xxx Image within
four (4) business days after capture of such image. Notwithstanding any other
provisions of this Agreement, in the event that within a given city, within a
given month twenty-five percent (25%) or more of the Jutvision Images are posted
to the Company Sites more than five (5) business days after capture due to no
fault of Company or Sales Agents, then, subject to a thirty (30) day cure
period, Company may enter into an agreement with a third party for services
comparable to the Production Services.
3. Exclusivity. Xxxxxx.xxx will be the exclusive provider of Virtual Tours
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Images for the Company Site. Company will not directly or indirectly promote
itself, or act, as a provider of Virtual Tour Images, nor will it promote,
display ads for or use the services of any third party acting in such capacity.
In addition, Company will not permit any Virtual Tour Images of any third party
to be posted to, linked to or otherwise made accessible through the Company
Site.
4. Marketing and Promotion.
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Xxxxxx.xxx agrees to:
. Include Company, including use of its logo, as a partner on xxxxxx.xxx's
website and in marketing material, as xxxxxx.xxx deems appropriate;
. Participate in Company press release regarding use of xxxxxx.xxx Tours,
subject to xxxxxx.xxx's approval;
. Provide listing presentation kits, subject to Company approval, to agents
purchasing virtual tours as part of the above Offer;
. Educate each Company office on the benefits of using the Internet in real
estate and methods of integrating Xxxxxx.xxx Tours into the Sales Agents'
marketing strategy;
. Provide custom order forms for Sales Agents;
. In the event, a hyperlink on the Xxxxxx.xxx Image, links the Northside Realty
website to a webpage that has competitor information, xxxxxx.xxx agrees to
discuss a remedy with Company.
. Discuss other joint marketing opportunities, including collaboration on email
and direct marketing material from time to time.
Company agrees to:
. Hold an in-office presentation by a xxxxxx.xxx representative with each
Company office within the first ninety (90) days of the Effective Date.
Company will send out a communication from a Company executive, including a
statement encouraging them to use xxxxxx.xxx's Production Services, to each
Sales Agent within the first thirty (30) days following the Effective Date.
Additionally, Company agrees to issue a press release regarding its use of
the xxxxxx.xxx Tours;
. Include an electronic order form and a description of the xxxxxx.xxx
Production Services on the Company Site that allows Sales Agents to submit
orders to xxxxxx.xxx via the Intranet. Maintain a gallery of Xxxxxx.xxx
Images on the Company Site;
. Include description, demonstration of the xxxxxx.xxx Production Services, and
marketing materials in Company sponsored training and seminars for Sales
Agents;
. When appropriate, include a Xxxxxx.xxx Xxxx and a brief, suitable reference
to the availability of the Production Services in the Company's print
advertising in magazines, flyers, newspapers and general mailings distributed
to clients and potential clients.
5. Term. This Agreement will commence on the Effective Date and continue for
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twelve (12) months, and will be automatically renewed for successive twelve (12)
month periods 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. Upon termination or
expiration, each party will cease all use of marks and other intellectual
property of the other party.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMANT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
IN WITNESS WHEREOF the parties hereto have executed disagreement.
XXXXXX.XXX, INC. NORTHSIDE REALTY
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
__________________________ _____________________________
Name/Title: Xxxx Xxxxxx Name/Title: Xxxxx Xxxxxx
Sr. V.P. Business Development President
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ADDITIONAL TERMS AND CONDITIONS
1. Definitions
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"Xxxxxx.xxx Image" means an electronic Image of a property produced by or on
behalf of xxxxxx.xxx.
"Xxxxxx.xxx Technology" means all Xxxxxx.xxx Images and software and hardware,
and including the Xxxxxx.xxx for Java Software, used to capture, process and
view Xxxxxx.xxx Images.
"Xxxxxx.xxx Tour" means the combined Production Services supplied by xxxxxx.xxx
with respect to a single Property.
"Company Sites" means the collection of HTML documents residing on servers
operated by or for Company or its affiliate, including without limitation
Company's intranet, extranet and public website.
"Confidential Information" means any trade secrets, confidential data 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").
"Production Services" means the services provided by or on behalf of xxxxxx.xxx
in producing Xxxxxx.xxx Images.
"Sales Agent" means any sales agent, sales representative or broker of the
Company.
"Service Provider Network" means the network of individuals throughout the
Company's territory of operation with whom xxxxxx.xxx has entered into
agreements to capture images at designated sites on xxxxxx.xxx's behalf.
"Term" means the Initial Term of this Agreement and the Renewal Terms, if any,
as set in forth in Section 4 on the first page of this Agreement.
"Virtual Tour Images" means 360, three-dimensional, virtual reality, virtual
tour, virtual walkthrough or other similar images, or production services for
such images.
2. Confidentiality
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Each party agrees to treat the other party's Confidential Information with the
same degree of care as it maintains its own information of a similar nature.
Each party will use at least the same procedures and degree of care which it
uses to protect the confidentiality of its own Confidential Information of like
importance, and in no event less than reasonable care. The terms of this
Agreement will constitute Confidential Information, except to the extent that
xxxxxx.xxx 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.
3. Xxxxxx.xxx Technology
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3.1 Xxxxxx.xxx Technology will remain, the exclusive property of xxxxxx.xxx,
and no provision of this Agreement implies any transfer to Company of any
ownership interest in any Xxxxxx.xxx Technology.
3.2 Xxxxxx.xxx hereby grants to Company a nonexclusive, worldwide, royalty-
free, nontransferable license to include links to the Xxxxxx.xxx Images on
the Company Sites and Hosted Sites solely for the purposes contemplated in
this Agreement. Company 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. Trademarks
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4.1 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"), and
Company will not take any actions inconsistent with xxxxxx.xxx's ownership
rights. Company owns and at all times will continue to own the trademarks,
service marks and/or trade names customarily used by Company during the Term
(the "Company Marks"), and xxxxxx.xxx will not take any actions inconsistent
with Company' ownership rights. Each party's use of the other party's marks will
not create in the using party any right, title or interest therein or thereto,
and all such use will inure to the exclusive benefit of other party.
4.2 Subject to the restrictions set forth herein, xxxxxx.xxx hereby grants
Company a nonexclusive, worldwide, royalty-free, fully paid up, nontransferable
right to use the Xxxxxx.xxx Marks, during the Term, with xxxxxx.xxx's prior
written approval, which xxxxxx.xxx will not unreasonably withhold or delay,
solely in connection with promotion and marketing of the Production Services
and/or Company financing. Subject to the restrictions set forth herein, Company
hereby grants financing. Subject to the restrictions set forth herein,
xxxxxx.xxx a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Company Marks, during the Term, solely in
connection with promotion and marketing of the Production Services and/or
xxxxxx.xxx financing. At the reasonable request of either party, the other party
will provide assistance with the protection and maintenance of the marks of the
requesting party. Each party may only use the marks of the other party as
expressly permitted herein and agrees to use the marks of the other party in a
manner commensurate with the style, appearance and quality of the other party's
services and/or products bearing such marks.
5. Limitation on Grant of Rights
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Except as expressly provided herein, neither party receives any other right or
license to the technology or intellectual property of the other party.
6. Termination
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6.1 Upon termination or expiration, (i) Company and xxxxxx.xxx will cease all
use of marks of the other party and (ii) Company will cease all use of the
Xxxxxx.xxx Images and Xxxxxx.xxx for Java Software and will purge all Xxxxxx.xxx
for Java Software and Xxxxxx.xxx Images from its servers.
6.2 This Agreement will terminate in the event a party 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 sixty (60) 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.
6.3 The provisions of Sections 2, 3.1, 4.1, 5, 6.1, 6.3, 7 and 8 of these
Additional Terms and Conditions 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.
7. No Warranties; Limitation of Liability
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XXXXXX.XXX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE ANY GOODS OR SERVICES PROVIDED BY THIS AGREEMENT. EXCEPT WITH RESPECT TO A
BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION 3 ON THE FIRST
PAGE OF THIS AGREEMENT OR SECTION 2 OF THESE ADDITIONAL TERMS AND CONDITIONS, 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.
8. Miscellaneous
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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 within this Agreement. Delivery will be deemed effective three (3)
days after deposit with postal authorities. 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. The
relationship of xxxxxx.xxx and Company established by this Agreement is that of
independent contractors. This Agreement will be governed by and construed under
the laws of the State of California without reference to conflict of laws
principles. This Agreement, together with all exhibit and attachments hereto,
sets forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing signed by the party to
be charged, and the waiver of any breach or default will not constitute a waiver
of any other right hereunder or any subsequent breach or default. Neither party
may assign this Agreement, or assign or delegate any right or obligation
hereunder, without the prior written consent of the other party; provided,
however, that either party may assign this Agreement or assign or delegate its
rights
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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. Company will not issue any press release
regarding the subject matter of this Agreement without the prior written
approval of xxxxxx.xxx. 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.
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