EXHIBIT 10.43
Execution Draft
ACCESS AGREEMENT
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THIS ACCESS AGREEMENT (the "Agreement") is entered into as of July 15, 1999
(the "Effective Date"), by and between xxxxxx.xxx, Inc., a Delaware corporation
with an office located at 000 Xxxxxxxxxx Xxxxxx #000, Xxxx Xxxx, XX 00000
("xxxxxx.xxx") and Cendant Corporation, a Delaware corporation with an office
located at 0 Xxxxxx Xxx, Xxxxxxxxxx, XX 00000 ("Company").
Xxxxxx.xxx uses the Xxxxxx.xxx Technology and provides the Production
Services to its customers on a nationwide basis. In the event that Company, or a
Company affiliate establishes a real estate Super Site which aggregates property
listings contained on the web sites of the Franchisors for the Real Estate
Systems and the Super Site offers the opportunity to associate images with such
listings, xxxxxx.xxx desires that any such listings of the Real Estate Systems
for which xxxxxx.xxx provides Xxxxxx.xxx Images shall display the Xxxxxx.xxx
Images, on a non-exclusive basis, on the Super 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
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1.1 "Grant Fees" means the fees xxxxxx.xxx will pay to Company, as
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provided in Section 4.1.
1.2 "Xxxxxx.xxx Image" means an electronic image of a property produced by
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or on behalf of xxxxxx.xxx through the use of Xxxxxx.xxx Technology.
1.3 "Xxxxxx.xxx Technology" means the software and hardware owned or
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licensed by Xxxxxx.xxx, including Xxxxxx.xxx Images and the Xxxxxx.xxx for Java
Software, used to capture, process and view Xxxxxx.xxx Images.
1.4 "Franchisee" means any Franchisee of the Real Estate Systems including
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the licensed brokers and sales associates of the Franchisee.
1.5 "Real Estate Systems" means the CENTURY 21(R), ERA(R) and Coldwell
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Banker(R) real estate brokerage franchise systems.
1.6 "Franchisors" mean the franchisors of the Real Estate Systems.
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1.7 "Commencement Date" means the date on which the earlier of the
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following events occurs: (i) all of the Real Estate System Web Sites are
capable and available to receive links to or postings of Xxxxxx.xxx Images and
integrating such Xxxxxx.xxx Images with listings or (ii) the Super Site is
launched, includes aggregated property listings contained on the Real Estate
System Web Sites and offers the opportunity to associate images with such
listings.
1.8 "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.
1.9 "Real Estate System Web Sites" means the collection of HTML documents
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residing on servers operated by or for Company or its affiliates and currently
accessible on or after the Effective Date by Franchisees or the public via the
Internet at the following URLs: xxxx://xxx.xxxxxxxxxxxxxx.xxx;
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xxxx://xxx.xxx.xxx and xxxx://xxx.xxxxxxx00.xxx.
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1.10 "Production Services" means the services provided by or on behalf of
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xxxxxx.xxx in producing the Xxxxxx.xxx Images through the use of Xxxxxx.xxx
Technology.
1.11 "Service Provider Network" means the network of individuals
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throughout xxxxxx.xxx's service area in North America with whom xxxxxx.xxx has
entered into agreements to capture images at designated sites on xxxxxx.xxx's
behalf.
1.12 "Super Site" means the contemplated real estate Internet portal which
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may aggregate property listings contained on the Real Estate System Web Sites.
1.13 "Term" means the Term of this as set forth in Section 6.
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1.14 "Virtual Tour Images" means any 360 (degrees), three dimensional or
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virtual tour or virtual walkthrough utilizing images.
2. GRANT OF ACCESS TO XXXXXX.XXX
To the extent the Real Estate System Web Sites offer the opportunity to
associate Virtual Tour Images with property listings contained on any or all of
the Real Estate System Web Sites, any such listings of the Real Estate System
Web Sites for which xxxxxx.xxx provides Xxxxxx.xxx Images shall display (i.e.,
link to or receive postings of) the Xxxxxx.xxx Images, on a non-exclusive basis,
on the Real Estate System Web Sites. The parties acknowledge that as of the date
of this Agreement Virtual Tour Images of such property listings on such Real
Estate System Web Sites are offered and that the parties shall cooperate with
each other in good faith in an effort to display Xxxxxx.xxx Images as provided
in the preceding sentence by November 30, 1999. Further, In the event that
Cendant or a Cendant affiliate establishes a Super Site which aggregates
property listings contained on the Real Estate System Web Sites and the Super
Site offers the opportunity to
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associate images with such listings, any such listings of the Real Estate System
Web Sites for which xxxxxx.xxx provides Xxxxxx.xxx Images shall display (i.e.,
link to or receive postings of) the Xxxxxx.xxx Images, on a non-exclusive basis,
on the Super Site.
3. BANNER AD PLACEMENT; PROVISION OF PRODUCTION SERVICES
3.1 Banner Ads. Company will place banner ads on the Super Site which ads
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shall appear on prominent web pages of the Super Site (except that no banners
shall be placed on any web pages of the Super Site which pages are designated to
or used for the purpose of joint or co-marketing activities with parties other
than xxxxxx.xxx). The parties will cooperate to establish the precise size and
placement of such banner ads. When clicked on, these banner ads shall link
directly to HTML pages hosted and designated by xxxxxx.xxx that will focus on
the promotion of xxxxxx.xxx and its products. In no event shall such banner ads
link to any web site other than HTML pages hosted and designated by xxxxxx.xxx
or shall any such banner ad links be utilized to offer for sale, market or
otherwise promote the sale of products or services other than the Production
Services. Nothing contained in this Agreement shall entitle xxxxxx.xxx to
place any banner ads on the Real Estate System Web Sites.
3.2 Press Releases. There will be a joint press release issued, which the
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parties in good faith will endeavor to issue on July 15, 1999, approved by both
parties, which approvals shall not be unreasonably withheld, indicating the
relationship entered into by and between Company and xxxxxx.xxx under this
Agreement, but in no event later than July 21, 1999. Additionally and subject to
the prior approval of Company, not to be unreasonably withheld, xxxxxx.xxx may
(i) briefly describe the terms of this Agreement in amendments (the
"Amendments") to xxxxxx.xxx's registration statement to be filed in connection
with the sale of xxxxxx.xxx's common stock in a firm commitment underwriting
(the "Xxxxxx.xxx IPO"); provided, however, in no event shall such description
include any more information or descriptions than are (x) required by applicable
law or regulations as they relate to such Amendments or (y) disclosed in any
press release issued under this Section 3.2; and (ii) if legal counsel for
xxxxxx.xxx advises, and subject to the prior approval of Company, not to be
unreasonably withheld, attach a redacted version of this Agreement as an exhibit
to the Amendments, provided that xxxxxx.xxx seeks confidential treatment of this
Agreement with the Securities and Exchange Commission. Any other press
announcement by either party regarding the subject matter of this Agreement will
be subject to the other party's approval, which shall not be withheld
unreasonably; provided, however, that xxxxxx.xxx shall not indicate in any press
release [*] that it has the right to include Xxxxxx.xxx Images on the Real
Estate System Web Sites or that, except with respect to the banner purchases for
the Super Site provided for in Section 3.1 or access to Xxxxxx.xxx Images
provided for in Section 2, Xxxxxx.xxx entered into or maintains any marketing or
promotion arrangement with Company or Company affiliates to be marketed or
promoted to the Franchisees of the Real Estate Systems or the franchisees of any
other brand or franchised system of Cendant or a Cendant affiliate.
3.3 Customer Sales and Billing. Xxxxxx.xxx is responsible for and will
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manage and coordinate any and all sales of Production Services, including by
means of xxxxxx.xxx's direct sales force, to its customers. Xxxxxx.xxx will be
responsible for receiving and fulfilling orders for Production Services and will
assume all costs and responsibility for invoicing and collecting revenues for
all customer sales. Xxxxxx.xxx will maintain a full-service, live customer call
center, available seven days per week, at reasonable hours, to handle inquiries
from prospective customers and customers alike.
3.4 Image Capturing, Processing and Linking. Xxxxxx.xxx will have sole
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responsibility for, and will bear all costs associated with, capturing images at
designated sites through its Service Provider Network and processing captured
images to create Xxxxxx.xxx Images. Subject to Section 2 above, Xxxxxx.xxx will
provide HTML links from the Super Site and the Real Estate System Web Sites to
bamboo's servers so that users searching listings on the Super Site or any Real
Estate System Web Site will be able to view any Xxxxxx.xxx Image associated with
a listing that appears in the solution set generated by the user's search query.
Notwithstanding anything to the contrary in this Agreement, in the event that
Company, in its reasonable discretion, determines that posting of Xxxxxx.xxx
Images to the Super Site or the Real Estate System Web Sites is preferable to
linking, then, subject to Section 5.2, xxxxxx.xxx will post images to the Super
Site or Real Estate System Web Sites. Company will permit linking of the Super
Site and Real Estate System Web Sites to Xxxxxx.xxx Images, or posting of
Xxxxxx.xxx Images to the Super Site or Real Estate System Web Sites, as the case
may be, and the parties will use commercially reasonable efforts to work
together to expeditiously implement, and maintain throughout the Term, a system
whereby xxxxxx.xxx will be capable of linking or posting, as the case may be, to
the Super Site and Real Estate System Web Sites, subject to Section 2 above.
Any Xxxxxx.xxx Images posted or linked to the Super Site and the Real Estate
System Web Sites will fully render within a reasonable time comparable to
similar services, unless a delay in such rendering is caused by the Internet or
the systems of Company or Company affiliates.
3.5 Prominence of Promotion. A third-party provider of Virtual Tour Images
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may be able to obtain more favorable treatment than xxxxxx.xxx, online or
offline, in marketing on the Super Site and in other marketing or promotional
materials generated by Company or Company affiliates; provided that xxxxxx.xxx
will be granted a right of first refusal to participate on the same basis. To
the extent that Company or Company affiliates publish in any media a list of
vendors for the Super Site, as reasonably determined by Company in good faith,
Company may include xxxxxx.xxx in such list during the Term.
3.6 Xxxxxx.xxx Promotion Obligations. At Company's election, Xxxxxx.xxx
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will include and display the logo of the designated Company affiliate relating
to the Super Site in any page on xxxxxx.xxx's Web site that lists, and displays
the logos of, other alliances of xxxxxx.xxx. In addition, at the sole election
of Company, xxxxxx.xxx will permit Company or a designated Company affiliate to
make a presentation at any regularly scheduled meeting (generally, held on a
quarterly basis) of Regional Directors of xxxxxx.xxx.
3.7 Solution Set Symbol. Company shall ensure that, when a listing
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solution set queried on the Super Site or a Real Estate System Web Site includes
a listing associated with a Xxxxxx.xxx Image, there shall appear beside the
listing a generic symbol selected by Company indicating that the listing is
associated with Virtual Tour Images. In no event shall any such symbol as may
be placed on the Real Estate System Web Sites include or identify "xxxxxx.xxx"
or imply any affiliation with or to xxxxxx.xxx.
4. FEES; BANNER PURCHASES
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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4.1 [*] Fees. In consideration of the [*] of [*] afforded to xxxxxx.xxx in
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Section 2 above, xxxxxx.xxx will pay Company a [*] Fee in the aggregate amount
of [*] as follows: (i) [*] upon [*]; (ii) [*] on the [*] of the [*]; and (iii)
[*] upon receipt by xxxxxx.xxx of an invoice from Company following the
occurrence of the [*]. Said fee is fully earned upon payment by xxxxxx.xxx.
4.2 Banner Purchases. In the aggregate, Xxxxxx.xxx will purchase from
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Company (or Company's affiliate as may be designated by Company) a [*] banner
ads per year over two years, payable in [*], beginning upon the occurrence of
the [*], at a CPM of [*]. Xxxxxx.xxx banner ads will not exceed 5% of Super Site
ad inventory in a given month. Should the purchased banner ads exceed 5% of
Super Site inventory, the excess ads will be applied at subsequent period(s)
when the addition of those ads to the scheduled ad buy for the particular
subsequent month does not exceed the 5% threshold; provided, however, that the
deferral of such ads will in no way modify the timing or amount of monthly
payments provided for in the first sentence of this Section 4.2.
5. PROPRIETARY RIGHTS
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5.1 Xxxxxx.xxx Images.
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(a) All Xxxxxx.xxx Technology, including without limitation all
Xxxxxx.xxx Images are, and at all times will remain, the exclusive property of
xxxxxx.xxx, and no provision of this Agreement implies any transfer to Company
or Company affiliates of any ownership interest in any Xxxxxx.xxx Technology.
(b) Xxxxxx.xxx hereby grants to Company or the designated Company
affiliate a nonexclusive, worldwide, royalty-free, nontransferable license to
include on the Super Site and Real Estate System Web Sites links to Xxxxxx.xxx
Images on xxxxxx.xxx's servers solely for the purposes contemplated in this
Agreement. Except with respect to designated Company affiliates, the foregoing
license does not include any right to grant or authorize sublicenses. In the
event that Company requires xxxxxx.xxx to post the Xxxxxx.xxx Images to the
Super Site and the Real Estate System Web Sites, xxxxxx.xxx grants Company
and/or designated Company affiliates the licenses set forth in Exhibit A
attached hereto.
5.2 Trademarks.
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(a) 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.
(b) Xxxxxx.xxx specifically acknowledges that this Agreement does not
confer upon xxxxxx.xxx any interest in or right to use any trademark, service
xxxx or other intellectual property right of Company or any Company affiliate
(collectively referred to as the "Company Marks") in connection with Agreement
unless xxxxxx.xxx receives the prior written consent of Company which consent
Company may grant or withhold in its sole discretion; provided, however, that,
subject to the prior approval of Company, not to be unreasonably withheld,
xxxxxx.xxx may include the logos of the Real Estate Systems in the amendments to
the registration statement filed in connection with xxxxxx.xxx's IPO. Xxxxxx.xxx
further agrees that upon termination of this Agreement, xxxxxx.xxx shall
immediately cease and discontinue all use of the Company Marks, including the
Super Site Marks. Further, if xxxxxx.xxx wishes to utilize the Company Marks
in advertising or promotional materials, it must submit such materials to
Company for final approval before utilizing them. In no event may xxxxxx.xxx or
any affiliated or associated person or entity utilize the Company Marks in
connection with any products or services other than the Production Services as
contemplated in this Agreement. Xxxxxx.xxx further acknowledges that this
Agreement does not create or grant any rights in xxxxxx.xxx to use any
intellectual property rights owned or controlled by any Franchisee or its
affiliates, nor does Company have any right to grant any such rights.
(c) Subject to the restrictions set forth herein, the parties
contemplate that xxxxxx.xxx shall have the right to use the logo of the
designated Company affiliate relating to Super Site, if any, subject to the
consent of Company or such Company affiliate in its sole discretion.
(d) Subject to the restrictions set forth herein, xxxxxx.xxx hereby
grants Company and designated Company affiliates 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, solely in connection with Section 3.1 above.
(e) Further, subject to the restrictions set forth herein, each party
may only use the Xxxxxx.xxx Marks or Company Marks, as the case maybe, as
expressly permitted herein and agrees to use such marks in a manner commensurate
with the style, appearance and quality of the other party's services and/or
products bearing such marks. Notwithstanding anything contained in this
Agreement to the contrary in no event shall xxxxxx.xxx use the Company Marks to
indicate that xxxxxx.xxx has the right to include Xxxxxx.xxx Images on the Real
Estate System Web Sites or that, except with respect to the banner purchases for
the Super Site provided for in Section 3.1 or access to Xxxxxx.xxx Images
provided for in Section 2, Xxxxxx.xxx entered into or maintains any marketing
or promotion arrangement with Company or Company affiliates to be marketed or
promoted to the Franchisees of the Real Estate Systems or any other brand or
franchised system of Cendant or a Cendant affiliate.
6. TERM AND TERMINATION
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6.1 Term. Unless earlier terminated as set forth below, this Agreement
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will become effective upon the Effective Date and shall
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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continue for a period of two (2) years from the Commencement Date; provided,
however, that, in the event that the event described in Section 1.7(ii) does not
occur within two (2) years from the Commencement Date, this Agreement shall
terminate three (3) years and three (3) months after the Effective Date.
Notwithstanding anything contained in this Agreement to the contrary, the Term
will be automatically extended to the extent required to expend all of the
purchased banner ads consistent with the 5% inventory limitation described above
in Section 4.2; provided, however, that no such extension shall be provided if
this Agreement is terminated by Company pursuant to Section 6.2 below. In no
event will the Term extend beyond three (3) years and three (3) months from the
Effective Date.
6.2 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 sixty (60) days
(ten (10) days in the event of a payment default) after being notified by the
non-breaching party of such breach or failure. Without regard to the foregoing,
Company may terminate this Agreement immediately and without liability in the
event that Xxxxxx.xxx markets or promotes Xxxxxx.xxx, Xxxxxx.xxx Images and/or
the Production Services to any Franchisees of the Real Estate Systems as a
preferred alliance or under any other affiliation with Company or Company
affiliates, except with respect to the banner purchases for the Super Site
provided for in Section 3.1 or access to Xxxxxx.xxx Images provided for in
Section 2.
6.3 Survival of Certain Terms. The provisions of Sections 5.1(a), 5.2(a)
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and (b), 6.1, 6.3, 7, 8, 9, 10 and Sections (c) and (e)-(h) of Exhibit A 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. Upon termination, (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 Technology and will purge all such Xxxxxx.xxx Technology
from its servers, systems and products.
7. 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.
8. REPRESENTATIONS AND WARRANTIES
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8.1 Each party represents and warrants to the other that (i) it is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) it has full right, power and
authority to enter into this Agreement and to perform all of its obligation
hereunder; (iii) this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with its terms; and (iv) its execution,
delivery and performance of this Agreement will not result in a breach of any
material agreement or understanding to which it is a party or by which it or any
of its material properties may be bound or constitute a violation of any
applicable law or regulation.
8.2 Xxxxxx.xxx represents and warrants that (i) xxxxxx.xxx has all
necessary rights, permissions and authorizations to use and permit Company
and/or Company affiliates to use Xxxxxx.xxx Technology as contemplated by this
Agreement; (ii) neither Xxxxxx.xxx Technology nor Company's or Company
affiliates' use thereof as contemplated under this Agreement does or will
violate any proprietary intellectual property rights of any third party; and
(iii) Xxxxxx.xxx Technology shall to the extent provided to and utilized by
Company or Company affiliates conform, without cost to Company or Company
affiliates, to the reasonable applicable specifications and meet the reasonable
performance and technical standards as required or developed by Company to
install, implement and operate Xxxxxx.xxx Technology for the purpose of
accessing or viewing Xxxxxx.xxx Images with respect to the Super Site and the
Real Estate System Web Sites as contemplated under this Agreement.
8.3 Xxxxxx.xxx warrants that the systems (including any
software/technology) leased or owned by xxxxxx.xxx in connection with the
provision and operation of Xxxxxx.xxx Technology, Xxxxxx.xxx Images and/or the
Production Services include or shall include, at no additional cost to Company,
design and performance so that Company shall not experience abnormally ending
and/or invalid and/or incorrect results by or through the use of the systems not
attributable to the Internet or the systems of Company or Company affiliates.
Furthermore, xxxxxx.xxx represents and warrants that subject to the proper
functioning of the systems of Company or Company affiliates, such systems will,
under normal use and service, record, store, process and present calendar dates
falling on or after January 1, 2000, in the same manner, and with the same
functionality, data integrity and performance, as the systems record, store,
process and present on or before December 31, 1999. Xxxxxx.xxx warrants that,
subject to the proper functioning of the systems of Company or Company
affiliates, the systems will lose no functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000.
8.4 Without limiting any of the rights and remedies available to Company
under this Agreement or at law or equity, in the event of a breach of the
representations and warranties under Sections 8.2 and 8.3 above, Xxxxxx.xxx
shall use its best efforts to correct such defect or non-compliance, at no cost
to Company or Company affiliates, upon receipt of written notification of such
defect or non-compliance from Company.
8.5 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE WARRANTIES
PROVIDED BY THE PARTIES UNDER THIS SECTION 8 ARE THE ONLY WARRANTIES PROVIDED
HEREIN AND 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.
9. INDEMNITY & LIMITATION OF LIABILITY
9.1 Indemnity. Xxxxxx.xxx will indemnify, defend and hold Company and
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Company affiliates harmless from and against any and all claims, actions,
liabilities, demands, damages, costs and expenses (including reasonable
attorneys' fees and disbursements) arising from or relating to any claims of the
following nature, to the extent caused by Xxxxxx.xxx: (i) any actual or alleged
violation of the right of privacy, right of publicity or similar rights of any
third party; (ii) any actual or alleged violation of the intellectual property
rights of any third party in connection with Xxxxxx.xxx Technology, Xxxxxx.xxx
Images, the Production Services, and Xxxxxx.xxx Marks or any part thereof; (iii)
any claim relating to an end-user's or customer's use of Xxxxxx.xxx Images or
the Production services and (iv) any claim arising out of the marketing or
promotion of Xxxxxx.xxx, Xxxxxx.xxx Images and/or the Production Services to the
Franchisees of the Real Estate Systems
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as a preferred alliance or under any other affiliation with Company or Company
affiliates, except with respect to the banner purchases for the Super Site
provided for in Section 3.1 or access to Xxxxxx.xxx Images provided for in
Section 2.
9.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
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THE OTHER PARTY 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. THE LIMITATION OF LIABILITY
PROVIDED IN THIS SECTION 9.2 SHALL NOT APPLY WITH RESPECT TO (i) THIRD PARTY
CLAIMS AND/OR (ii) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY.
10. GENERAL PROVISIONS
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10.1 Notices. Any notice required or permitted by this Agreement will be
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deemed given if sent by registered mail, postage prepaid, addressed to the other
party at the address set forth at the top of this Agreement. Delivery will be
deemed effective three (3) days after deposit with postal authorities.
10.2 Miscellaneous. Nonperformance of either party will be excused to the
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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 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
New York 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 Company may assign
this Agreement or assign or delegate its rights and obligations under this
Agreement to an affiliate or in connection with 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. 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.
10.3 Acknowledgments. Xxxxxx.xxx acknowledges and understands that
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Company has entered into and maintains as of the date of this Agreement a
preferred alliance agreement ("Preferred Alliance Agreement") with a provider
(the "Preferred Alliance") of panoramic imaging services (in the capacity of a
supplier of such services) under which Preferred Alliance Agreement the
Franchisors of the Real Estate Systems, among other Company affiliates,
recommend, on an exclusive basis, such provider (including the panoramic imaging
services) to the Franchisees of the Real Estate Systems. Xxxxxx.xxx acknowledges
and agrees that in no event shall this Agreement be deemed to: (i) require or
commit Company or the Franchisors to recommend, market or promote Xxxxxx.xxx,
Xxxxxx.xxx Images or the Production Services to the Franchisees of the Real
Estate Systems in any manner whatsoever; and (ii) grant to Xxxxxx.xxx any right
or authority to market or promote Xxxxxx.xxx, Xxxxxx.xxx Images and/or the
Production Services to any Franchisees of the Real Estate Systems as a preferred
alliance, approved vendor or supplier or under any other affiliation with
Company or Company affiliates, except with respect to the banner purchases for
the Super Site provided for in Section 3.1 or access to Xxxxxx.xxx Images
provided for in Section 2.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX.XXX, INC. CENDANT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
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Title: SVP, Business Development Title: Vice President-Business Development
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Date: July 15, 1999 Date: July 15, 1999
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EXHIBIT A
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POSTING LICENSES
In the event that Company or a designated Company affiliate requires
xxxxxx.xxx to post the Xxxxxx.xxx Images to the Super Site and the Real Estate
System Web Sites:
(a) Xxxxxx.xxx grants to Company a nonexclusive, worldwide, royalty-
free, nontransferable license to display, perform and reproduce on the Super
Site and Real Estate System Web Sites, each Xxxxxx.xxx Image that is posted to
such sites during the Term, solely for the purposes contemplated in this
Agreement. Company and designated Company affiliates will not distribute,
modify, edit, or prepare derivative works from the Xxxxxx.xxx Images without the
prior written permission of xxxxxx.xxx. Except with respect to the designated
Company affiliates, the foregoing license does not include any right to grant or
authorize sublicenses.
(b) Xxxxxx.xxx further grants to Company a nonexclusive, worldwide,
royalty-free license to use the Xxxxxx.xxx for Java Software, in object code
only, to display on the Super Site and Real Estate System Web Sites Xxxxxx.xxx
Images licensed above. "Use" means storing, loading, installing, executing or
displaying the Xxxxxx.xxx for Java Software. Company and designated Company
affiliates may not modify the Xxxxxx.xxx for Java Software or disable any
licensing or control features of the Xxxxxx.xxx for Java Software. Except with
respect to the designated Company affiliates, the foregoing license does not
include any right to grant or authorize sublicenses.
(c) The Xxxxxx.xxx for Java Software is owned and copyrighted by
xxxxxx.xxx. The license set forth herein confers no title to, nor ownership in,
the Xxxxxx.xxx for Java Software and is not a sale of any rights in the
Xxxxxx.xxx for Java Software.
(d) Company and designated Company affiliates may only make copies or
adaptations of the Xxxxxx.xxx for Java Software for archival purposes or when
copying or adaptation is an essential step in the authorized use of the
Xxxxxx.xxx for Java Software. Company and designated Company affiliates must
reproduce all copyright notices in the original Xxxxxx.xxx for Java Software on
all copies or adaptations. Company and designated Company affiliates may only
transfer class files when they are called on by a "requesting" server in the
normal course of Java Applet execution. Company and designated Company
affiliates may not distribute the Xxxxxx.xxx for Java Class files. Any transfer
or copying of the Xxxxxx.xxx for Java Software by Company or designated Company
affiliates other than as expressly provided herein constitutes a material breach
of this Agreement.
(e) Company and designated Company affiliates may only use the
Xxxxxx.xxx for Java Software to read .jut files, a file format proprietary to
xxxxxx.xxx.
(f) Company and designated Company affiliates will not disassemble or
decompile the Xxxxxx.xxx for Java Software including single Xxxxxx.xxx for Java
Class files under any circumstances. The disassembly or decryption by Company
or designated Company affiliates of any Xxxxxx.xxx for Java Class file
constitutes a material breach of this Agreement.
(g) Company and designated Company affiliates will not export or re-
export the Xxxxxx.xxx for Java Software or any copy or adaptation in violation
of any applicable laws or regulations.
(h) The Xxxxxx.xxx for Java Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun 1987)(or any equivalent
existing or superseding agency regulation or contract clause), whichever is
applicable. Company has only those rights provided for such Xxxxxx.xxx for Java
Software and any accompanying documentation by the applicable FAR or DFARS
clause or agreement between Company and xxxxxx.xxx.
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