EXHIBIT 10.32
May 17, 1999
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of May 25, 1999 (the "Effective Date"), between ▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation with an office located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇.▇▇▇"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Southwest Region, a Nevada Corp.
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
(definitions of certain capitalized terms and additional terms and conditions
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 Production 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. "Company Site" to be
defined as KWSW Region, Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Realty Southwest Region--Company
Site, not ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ National, ▇▇.▇▇▇ or ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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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.
3. Marketing and Promotion.
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▇▇▇▇▇▇.▇▇▇ agrees to:
. Provide 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 ▇▇▇▇▇▇.▇▇▇'s Web site;--Listing
Flipchart;--Floppy disk;
. Include Company in marketing material and press releases, as ▇▇▇▇▇▇.▇▇▇
deems appropriate;
. Provide marketing to Sales Agents who purchase ▇▇▇▇▇▇.▇▇▇ Tours, including
CD ROM demo disks;
. Offer a special promotional offer at office presentations made by
▇▇▇▇▇▇.▇▇▇ account executives to Sales Agents during the first sixty (45)
days of this agreement; and
. Hold periodic training seminars for Sales Agents focusing on the benefits
of using the Internet in real estate and methods of integrating ▇▇▇▇▇▇.▇▇▇
Tours into the Sales Agents' marketing strategy.
Company agrees to:
. Ensure that an 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 all Sales Agents
through in-office presentations within the first 45 days of this agreement.
4. Term. This Agreement will commence on the Effective Date and continue for
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eighteen (18) 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.
▇▇▇▇▇▇.▇▇▇, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SOUTHWEST REGION
By: /s/ ▇▇▇▇▇▇ Field By: /s/ [SIGNATURE ILLEGIBLE]
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Name/Title: Vice President Name/Title: [SIGNATURE ILLEGIBLE]
▇▇▇▇▇▇ Field ---------------------------
REGIONAL DIRECTOR
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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.
"▇▇▇▇▇▇.▇▇▇ 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
Company's territory of operation with whom ▇▇▇▇▇▇.▇▇▇ has entered into
agreements to capture Images at designated sites on ▇▇▇▇▇▇.▇▇▇'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
▇▇▇▇▇▇.▇▇▇ discloses such information in good faith to a legitimate potential,
actual, strategic investor, Investment banker, venture capital firm or
consultant, or as required by statute, regulation or other law.
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 or ▇▇▇▇▇▇.▇▇▇, 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 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 name ▇▇▇▇▇▇.▇▇▇ 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 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 ▇▇▇-▇▇▇▇▇▇.▇▇▇ Marks, during the term of this Agreement, with
▇▇▇▇▇▇.▇▇▇'s prior written approval, which ▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇'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 ▇▇▇▇▇▇.▇▇▇ 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-beaching 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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▇▇▇▇▇▇.▇▇▇ 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 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 ▇▇▇▇▇▇.▇▇▇ 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 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.
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