EXHIBIT 10.29
EXECUTION DRAFT
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of May 19, 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 Xxxxxxx Real Estate, a Massachusettes corporation
with an office located at 00 Xxxxxxxx Xxx, Xxxxxx, 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. [*] Xxxxxxx Real Estate will [*] In return, xxxxxx.xxx will [*] The
tours shall be used for current inventory. Xxxxxxx will make best efforts
to use these tours by the [*] Xxxxxx.xxx will provide an invoice to
Xxxxxxx Real Estate [*] Xxxxxxx will [*]
2. Xxxxxx.xxx Service. Xxxxxx.xxx will be responsible for receiving orders and
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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 expeditiously
implement, and maintain, a system whereby Company will be capable of
linking the Company Site to Xxxxxx.xxx Images.
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 in marketing material, as xxxxxx.xxx deems appropriate
and as a partner on xxxxxx.xxx's website
. Provide co-branded marketing materials to Sales Agents that explains
Xxxxxx.xxx Tours to customers;
. Hold periodic training seminars for Sales Agents focusing on the
benefits of using the Internet in real estate and methods of integrating
Xxxxxx.xxx Tours into the Sales Agents' marketing strategy.
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.
. Ensure that an HTML button and the corresponding URL provided by
xxxxxx.xxx will be located on an individual Company listing page
containing a Xxxxxx.xxx Image within 24 hours from receiving the URL
link from xxxxxx.xxx;
. Maintain a gallery of Xxxxxx.xxx Images on the Company Site;
. When appropriate, include a Xxxxxx.xxx Xxxx and a brief, suitable
reference to the availability of the Production Services in the
Company's advertising, flyers, newsletters and general mailings
distributed to clients and potential clients; collaborate with
xxxxxx.xxx to develop email and direct marketing material generated from
time to time to highlight the availability and features of the
Production Services to Sales Agents; and distribute marketing materials
created by xxxxxx.xxx at seminars, presentations, training sessions and
follow-up meetings sponsored by Company;
5. Future: Within the first thirty (30) days following the Effective Date,
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Xxxxxx.xxx and Company agree to negotiate in good faith a longer-term
volume purchase by Company of xxxxxx.xxx Production Services for delivery
in 1999.
6. 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
XXXXXX.XXX,INC XXXXXXX REAL ESTATE
By: /s/ Xxxxxx X. Xxxxxx By: /s/ [SIGNATURE ILLEGIBLE]
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Name/Title: Xxxxxx X. Xxxxxx Name/Title:
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SVP Business & Development Director of Marketing
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Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
ADDITIONAL TERMS AND CONDITIONS
1. Definitions
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"Company Site" means the collection of HTML documents residing on servers
operated by or for Company or its affiliate, including without limitation
Company's intranet and extranet, and accessible on or after the Effective Date
by Sales Agents or the public via the Internet.
"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 of this Agreement.
"Xxxxxx.xxx Image" means an electronic image of a Property produced by or on
behalf of xxxxxx.xxx.
"Xxxxxx.xxx Technology" means software and hardware, including the Xxxxxx.xxx
for Java Software, used to capture, process and view Xxxxxx.xxx Images.
"Basic Package" is defined as four xxxxxxxxx xxxxxx of a property linked to one
website.
"Xxxxxx.xxx Tour" means the combined Production Services supplied by xxxxxx.xxx
with respect to a single Property.
"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.
"Virtual Tour Images" means 360 degrees, 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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(a) All Xxxxxx.xxx Technology, including without limitation the Xxxxxx.xxx for
Java Software and all Xxxxxx.xxx Images, whether or not produced for Sales
Agents and whether or not posted to or linked to the Company Site, are, and at
all times 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. Company will not reproduce, distribute, modify, edit, or
prepare derivative works from the Xxxxxx.xxx Images without the prior written
permission of xxxxxx.xxx.
(b) Xxxxxx.xxx hereby grants to Company a nonexclusive, worldwide, royalty-free,
nontransferable license to include on the Company Site links to Xxxxxx.xxx
Images on xxxxxx.xxx's servers solely for the purposes contemplated in this
Agreement.
4. 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. 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 of
this Agreement (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.
(b) 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 of this Agreement, with
xxxxxx.xxx's prior written approval, which xxxxxx.xxx will not unreasonably
withhold or delay, solely in connection with Company's promotion and marketing
of the Production Services and financing. Subject to the restrictions set forth
herein, Company hereby grants xxxxxx.xxx a nonexclusive, worldwide, royalty-
free, fully paid up, nontransferable right to use the Company Marks, during the
term of this Agreement, solely in connection with xxxxxx.xxx's promotion and
marketing of the Production Services and 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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(a) 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.
(b) 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.
(c) The provisions of Sections 2, 3(a), 4(a), 5, 6(a), 6(c), 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 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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