EXHIBIT 10.27
DISTRIBUTION & CO-MARKETING AGREEMENT
THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as May 5, 1999 (the "Effective Date"), between ▇▇▇▇▇▇.▇▇▇ CORPORATION, a
Delaware corporation with an office located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇.▇▇▇"), and The Equity Group, an Oregon corporation with an
office located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ("Company"). ▇▇▇▇▇▇.▇▇▇ 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 (additional terms and conditions and
definitions of certain capitalized terms appear on the reverse side of this
agreement):
1. ▇▇▇▇▇▇.▇▇▇ Service. ▇▇▇▇▇▇.▇▇▇ will be responsible for receiving orders and
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invoicing and collecting revenues for sales of Productions Services. ▇▇▇▇▇▇.▇▇▇
will capture images at designated sites through its Service Provider Network and
process captured images to create ▇▇▇▇▇▇.▇▇▇ Images. ▇▇▇▇▇▇.▇▇▇ will host
▇▇▇▇▇▇.▇▇▇ Images on its servers and will provide to Company a URL link and
identifying listing information for each ▇▇▇▇▇▇.▇▇▇ Image purchased by Company
for the purpose of integrating the link into listings on the Company Site.
Company will permit linking of the Company Site to ▇▇▇▇▇▇.▇▇▇ Images, and the
parties will use best efforts to work together to expeditiously implement, and
maintain throughout the term of this Agreement, a system whereby Company will be
capable of linking the Company Site to ▇▇▇▇▇▇.▇▇▇ Images.
2. Exclusivity. ▇▇▇▇▇▇.▇▇▇ 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. Notwithstanding the preceding sentence, Company will not be restricted
from accommodating alternative Virtual Tour Images already posted or linked to
the Company Sites or from allowing Company customers that use a provider of
Virtual Tours Images other than ▇▇▇▇▇▇.▇▇▇ to link to the Company Site.
3. Marketing and Promotion.
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▇▇▇▇▇▇.▇▇▇ agrees to:
. Provide a dedicated account manager and commercially reasonable technical
support during normal business hours to help Company link the Company Site
to the ▇▇▇▇▇▇.▇▇▇ Images produced on behalf of Sales Agents;
. Promote Company as a partner on the ▇▇▇▇▇▇.▇▇▇ Web site;
. Include Company in marketing material and press releases, as ▇▇▇▇▇▇.▇▇▇
deems appropriate;
. Provide co-branded marketing materials to Sales Agents that explains
▇▇▇▇▇▇.▇▇▇ Tours to customers, including CD ROM demo disks;
. Offer a special bulk purchase price and a special promotional offer at
office presentations made by ▇▇▇▇▇▇.▇▇▇ representatives to Sales Agents
during the first sixty (60) days of this agreement; and
. Hold periodic training seminars for Sale Agents focusing on the benefits of
using the Internet in real estate and methods of integrating ▇▇▇▇▇▇.▇▇▇
Tours into the Sale Agents' marketing strategy.
Company agrees to:
. Ensure that a HTML button and the corresponding URL provided by ▇▇▇▇▇▇.▇▇▇
will be located on an individual Company listing page within 24 hours from
receiving the URL link from ▇▇▇▇▇▇.▇▇▇;
. Include an electronic order form on the Company Site that allows Sales
Agents to submit orders to ▇▇▇▇▇▇.▇▇▇ via the Internet;
. Maintain a gallery of ▇▇▇▇▇▇.▇▇▇ Images on the Company Site;
. When appropriate, include a ▇▇▇▇▇▇.▇▇▇ ▇▇▇▇ and a brief, suitable reference
to the availability of the Production Services in the Company's print
advertising in magazines, flyers, newsletters and general mailings
distributed to clients and potential clients; collaborate with ▇▇▇▇▇▇.▇▇▇ to
develop email and direct marketing material generated from time to time to
highlight the availability and features of the Production Services; and
distribute marketing materials created by ▇▇▇▇▇▇.▇▇▇ at seminars,
presentations, training sessions and follow-up meetings sponsored by
Company; and
. Ensure ▇▇▇▇▇▇.▇▇▇ account executives have access to Sales Agents during
office meetings within the first 60 days of this agreement.
4. 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.
▇▇▇▇▇▇.▇▇▇ THE EQUITY GROUP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇, SVP By: ▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, SVP Marketing Manager
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 at the following URL
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any other web site address adopted by Company.
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"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 (the "Confidential
Information").
"▇▇▇▇▇▇.▇▇▇ Image" means an electronic image of a Property produced by or on
behalf of ▇▇▇▇▇▇.▇▇▇.
"▇▇▇▇▇▇.▇▇▇ Technology" means software and hardware, including the ▇▇▇▇▇▇.▇▇▇
for Java Software, used to capture, process and view ▇▇▇▇▇▇.▇▇▇ Images.
"▇▇▇▇▇▇.▇▇▇ Tour" means the combined Production Services supplied by ▇▇▇▇▇▇.▇▇▇
with respect to a single Property.
"Production Services" means the services provided by or on behalf of ▇▇▇▇▇▇.▇▇▇
in producing ▇▇▇▇▇▇.▇▇▇ Images.
"Sales Agent" means any sales agent, sales representative or broker of the
Company.
"Service Provider Network" means the network of individuals throughout the
Territory with whom ▇▇▇▇▇▇.▇▇▇ has entered into agreements to capture images at
designated sites on ▇▇▇▇▇▇.▇▇▇'s behalf.
"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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Except as expressly provided herein, neither party will use the Confidential
Information of the other party without such other party's prior written consent.
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
▇▇▇▇▇▇.▇▇▇ discloses such information in good faith to a legitimate potential,
or actual, strategic investor, investment banker, venture capital firm or
consultant.
3. ▇▇▇▇▇▇.▇▇▇ Technology
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(a) All ▇▇▇▇▇▇.▇▇▇ Technology, including without limitation the ▇▇▇▇▇▇.▇▇▇ for
Java Software and all ▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇, and no provision of
this Agreement implies any transfer to Company of any ownership interest in any
▇▇▇▇▇▇.▇▇▇ Technology. Company will not reproduce, distribute, modify, edit, or
prepare derivative works from the ▇▇▇▇▇▇.▇▇▇ Images without the prior written
permission of ▇▇▇▇▇▇.▇▇▇.
(b) ▇▇▇▇▇▇.▇▇▇ hereby grants to Company a nonexclusive, worldwide, royalty-
free, nontransferable license to include on the Company Site links to ▇▇▇▇▇▇.▇▇▇
Images on ▇▇▇▇▇▇.▇▇▇'s servers solely for the purposes contemplated in this
Agreement.
4. Trademarks
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(a) ▇▇▇▇▇▇.▇▇▇ owns and at all times will continue to own the trademarks,
service marks and/or trade names ▇▇▇▇▇▇.▇▇▇, the ▇▇▇▇▇▇.▇▇▇ logo, BAMBOO,
▇▇▇▇▇▇.▇▇▇ and the ▇▇▇▇▇▇.▇▇▇ logo, as well as any name or ▇▇▇▇ ▇▇▇▇▇▇.▇▇▇ may
subsequently adopt as a trade name or to designate the Production Services
(collectively, the "▇▇▇▇▇▇.▇▇▇ Marks"), and Company will not take any actions
inconsistent with ▇▇▇▇▇▇.▇▇▇'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 ▇▇▇▇▇▇.▇▇▇ 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, ▇▇▇▇▇▇.▇▇▇ hereby grants
Company a nonexclusive, worldwide, royalty-free, fully paid up, nontransferable
right to use the ▇▇▇▇▇▇.▇▇▇ Marks, during the term of this Agreement, with
▇▇▇▇▇▇.▇▇▇'s prior written approval, which ▇▇▇▇▇▇.▇▇▇ will not unreasonably
withhold or delay, solely in connection with promotion and marketing of the
Production Services. Subject to the restrictions set forth herein, Company
hereby grants ▇▇▇▇▇▇.▇▇▇ 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 promotion and marketing of the Production
Services. 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 ▇▇▇▇▇▇.▇▇▇ will cease all
use of marks of the other party and (ii) Company will cease all use of the
▇▇▇▇▇▇.▇▇▇ Images and ▇▇▇▇▇▇.▇▇▇ for Java Software and will purge all ▇▇▇▇▇▇.▇▇▇
for Java Software and ▇▇▇▇▇▇.▇▇▇ 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; Limitations of Liability
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BAMBOO.COMVISlON 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 2.3 ON THE
REVERSE SIDE OF THIS AGREEMENT OR SECTION 7 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 ▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇. 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.
