EXHIBIT 10.35
- May 26, 1999
NON-EXCLUSIVE DISTRIBUTION AGREEMENT
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THIS NON-EXCLUSIVE DISTRIBUTION AGREEMENT (the "Agreement") is entered into
as of May _____, 1999 (the "Effective Date"), between ▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation ("▇▇▇▇▇▇.▇▇▇") with an office located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and the Multiple Listing Service of Northern
Illinois, an Illinois corporation, with an office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Company").
▇▇▇▇▇▇.▇▇▇ uses the ▇▇▇▇▇▇.▇▇▇ Technology and provides the Production Services.
Company operates the Company Site and the Company Database. ▇▇▇▇▇▇.▇▇▇ desires
to be the provider of virtual tour technology and production services for the
Company Site and the Company Database. 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 "Basic Package" means up to four scenes captured in a designated
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Property, converted into a corresponding number of ▇▇▇▇▇▇.▇▇▇ Images and linked
to the Company Site and/or the Company Database.
1.2 "Company Database" means the collection of data and documents residing
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on servers operated by or for Company and accessible on or after the Effective
Date by Company Members and, to the extent Company makes such collection
generally available, to Company Members and the public via the Internet.
1.3 "Company Member" means a real estate agent or broker that has the
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right to access the Company Database.
1.4 "Company Originated Order" means any order received by ▇▇▇▇▇▇.▇▇▇ for
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a Basic Package or Upgrade Package placed by a Company Member via (i) [*]
1.5 "Company Site" means the collection of HTML documents residing on
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servers operated by or for Company or its affiliate and accessible on or after
the Effective Date by Company Members via the Internet.
1.6 "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 of this Agreement (the "Confidential
Information"). The terms of this Agreement will constitute Confidential
Information, except to the extent that such information is disclosed in good
faith to a legitimate potential, or actual, strategic investor, investment
banker, venture capital firm, or consultant.
1.7 "▇▇▇▇▇▇.▇▇▇ Image" means an electronic image of a Property produced by
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or on behalf of ▇▇▇▇▇▇.▇▇▇.
1.8 "▇▇▇▇▇▇.▇▇▇ Technology" means the ▇▇▇▇▇▇.▇▇▇ Images and software and
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hardware used to capture, process and view ▇▇▇▇▇▇.▇▇▇ Images.
1.9 "Net Revenues" means the gross amount received by ▇▇▇▇▇▇.▇▇▇ for sales
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of the Basic Packages and Upgrade Packages [*] (i) refunds, discounts,
promotions, credits and allowances, (ii) packaging, fees and freight, (iii)
sales taxes and other governmental charges, and (iv) reasonable provisions for
doubtful collections determined in accordance with GAAP.
1.10 "Production Services" means the services provided by or on behalf of
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▇▇▇▇▇▇.▇▇▇ in preparing the Basic Packages and Upgrade Packages.
1.11 "Property" means any piece of residential real estate within the
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Territory, including without limitation new homes,
offered for sale or resale that reside on the Company Site and the Company
Database.
1.12 "Service Provider Network" means the network of videographers
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throughout the Territory with whom ▇▇▇▇▇▇.▇▇▇ has entered into agreements to
capture images at designated sites on ▇▇▇▇▇▇.▇▇▇'s behalf.
1.13 "Term" means the Initial Term of this Agreement and the Renewal
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Terms, if any, as set forth in Section 6.
1.14 "Territory" means the service districts of Company.
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1.15 "Transaction Fee" means the [*] ▇▇▇▇▇▇.▇▇▇ will pay to Company during
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the Term based on sales of [*] (as defined below) as provided in Section 4.1.
1.16 "Upgrade Package" means an addition to a Basic Package consisting of
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one additional scene captured at the same designated Property of the Basic
Package, converted into one additional ▇▇▇▇▇▇.▇▇▇ Image for the scene captured
and linked to the Company Site and the Company Database.
1.17 "Virtual Tour Images" means 360 degrees three-dimensional, virtual
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reality, virtual tour, virtual walkthrough or other similar images, or
production services for such images.
2. PROVISION OF PRODUCTION SERVICES
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2.1 Sales and Billing. ▇▇▇▇▇▇.▇▇▇ will be responsible for receiving and
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fulfilling orders for Basic Packages and Upgrade Packages. ▇▇▇▇▇▇.▇▇▇ will
assume all costs and responsibility for invoicing and collecting revenues for
all sales of Basic Packages and Upgrade Packages, provided, however, that
▇▇▇▇▇▇.▇▇▇ will not have any obligation pursuant to Section 4.1 to remit
Transaction Fees based on uncollected revenues.
2.2 Image Capturing. Processing and Linking. The parties will work
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together to implement a system whereby ▇▇▇▇▇▇.▇▇▇ will be capable of displaying
▇▇▇▇▇▇.▇▇▇ Images on the Company Site and the Company Database, whether such
▇▇▇▇▇▇.▇▇▇ Images are produced from Company Originated Orders or orders through
▇▇▇▇▇▇.▇▇▇'s other sales channels. The parties will also work together on file
naming formats and scripts that will attach the ▇▇▇▇▇▇.▇▇▇ Images to the
appropriate listings on the Company Site and the Company Database. Company will
have [*] the current operator of the Company Database, incorporate an order
checkbox on the Company Database listing input screen that will facilitate the
request for Production Services by Company Members. ▇▇▇▇▇▇.▇▇▇ will have sole
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 ▇▇▇▇▇▇.▇▇▇ Images. ▇▇▇▇▇▇.▇▇▇ will assist Company in linking
the Company Site and the Company Database to ▇▇▇▇▇▇.▇▇▇ Images. Company will
permit such linking and will work with ▇▇▇▇▇▇.▇▇▇ to establish and maintain
links on the Company Site and the Company Database throughout the Term.
▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to process and link each
▇▇▇▇▇▇.▇▇▇ Image on behalf of Company Members [*] after capture of the images,
in each case to the extent ▇▇▇▇▇▇.▇▇▇ has the right to do so, provided that such
linking is not delayed by factors attributable to Company.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2.3 [*] As of the Effective Date, in addition to any other [*] ▇▇▇▇▇▇.▇▇▇
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will offer the following packages of Production Services to Company Members
hereunder:
(a) [*] For [*] Company Customers may purchase a Basic Package that
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includes posting or linking to [*] of the following: [*] (once implemented) or
the Company Member's own Web site [*]
(b) [*] For [*] Company Customers may purchase a Basic Package that
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includes posting or linking to [*] (once implemented), the [*] the Company Site
and the Company Database [*]
▇▇▇▇▇▇.▇▇▇ will determine whether linking or posting is appropriate for all such
orders based on its agreements and other factors within its discretion. Linking
or posting to [*] is subject to ▇▇▇▇▇▇.▇▇▇'s right to engage in such posting or
linking, and ▇▇▇▇▇▇.▇▇▇ will negotiate with Company regarding [*] set forth in
Section 2.3(b) if one or more [*] becomes unavailable.
▇▇▇▇▇▇.▇▇▇ will automatically link appropriate ▇▇▇▇▇▇.▇▇▇ Images to the Company
Site and Company Database that [*] whenever the [*] are made by Company Members,
except in those cases where: (a) the Company Member objects to the linking
and/or (b) the [*] of such ▇▇▇▇▇▇.▇▇▇ Images objects to the linking.
Notwithstanding anything to the contrary in this Agreement, ▇▇▇▇▇▇.▇▇▇ will not
[*] Company with respect to any [*]
2.4 Company Database. The parties understand and agree that,
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notwithstanding anything to the contrary herein, all obligations of the parties
with respect to linking the ▇▇▇▇▇▇.▇▇▇ Images to the Company Database or
enabling viewing of the ▇▇▇▇▇▇.▇▇▇ Images through the Company Database will be
undertaken only to the extent that necessary programming is performed by the
third parties operating the Company Database. Company will seek to have such
third parties, currently [*] perform such programming on behalf of Company.
2.5 [*] During the Term, in the event that ▇▇▇▇▇▇.▇▇▇ [*] to provide the
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Production Services to [*] this Agreement [*]. Notwithstanding the preceding
sentence, during the Term nothing herein shall prevent [*] of ▇▇▇▇▇▇.▇▇▇ from
offering and/or selling the Production Services [*] and nothing herein shall
prevent ▇▇▇▇▇▇.▇▇▇ from offering and/or selling the Production Services to [*]
provided, however, that ▇▇▇▇▇▇.▇▇▇ will not offer the [*]
3. MARKETING AND PROMOTION
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3.1 Company Obligations. Company agrees to market, promote and facilitate
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sales of the Production Services as follows
(a) Company Site and Company Database. Company agrees to prominently
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market and promote the Production Services on the Company Site and the Company
Database. Such marketing and promotion will include, without limitation:
(i) on the "home" or introductory page of the Company
Site and the Company Database, or the page that is first accessed when a Company
Member accesses the Company Site or a Company Member logs onto the Company
Database, prominent display of the ▇▇▇▇▇▇.▇▇▇ logo, located above the fold
(i.e., visible to an end user without scrolling or navigation on a 640 by 480
pixel page), that, when clicked on, links directly to an HTML page located at a
URL supplied by ▇▇▇▇▇▇.▇▇▇ that will permit Company Members to order Production
Services; and
(ii) on the listing input screen of the Company Database,
inclusion of a prominent ▇▇▇▇▇▇.▇▇▇ logo and checkbox permitting Company Members
to order Production Services; and
(iii) on each page of the Company Site and the Company
Database displaying ▇▇▇▇▇▇.▇▇▇ Images, inclusion of a prominent ▇▇▇▇▇▇.▇▇▇ logo
that when clicked on, links directly to an HTML page located at a URL supplied
by ▇▇▇▇▇▇.▇▇▇ that will permit Company Members to order Production Services; and
(iv) with each listing displayed on the Company Site and
the Company Database for which a ▇▇▇▇▇▇.▇▇▇ Image is available, inclusion of a
prominent ▇▇▇▇▇▇.▇▇▇ button that, when clicked on, links directly to the
corresponding ▇▇▇▇▇▇.▇▇▇ Image on the Company Site and the Company Database.
Without the prior approval of ▇▇▇▇▇▇.▇▇▇, Company will not display any
advertisements of any competitor of ▇▇▇▇▇▇.▇▇▇ (i) on any ordering page for the
Production Services or any page that contains a ▇▇▇▇▇▇.▇▇▇ Image and is located
on the Company Site and/or the Company Database or (ii) on the "home" or
introductory page of the Company Site and the Company Database, or the page that
is first accessed when a Company Member accesses the Company Site or a Company
Member logs onto the Company Database.
(b) Print Advertising. Company will include in Company's quarterly
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newsletters sent to Company Members a ▇▇▇▇▇▇.▇▇▇ logo and a brief, suitable
reference to the availability of the Production Services.
(c) Seminars. To the extent Company deems appropriate, Company will
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invite ▇▇▇▇▇▇.▇▇▇ to speak and promote its Production Services at quarterly
seminars and training sessions Company conducts for Company Members during the
Term. To the extent Company deems appropriate, Company or its sales
representatives will make available to Company Members at such seminars and
training sessions subscription forms and marketing materials created by
▇▇▇▇▇▇.▇▇▇ that promote the Production Services.
(d) Joint Press Release. Company will participate with ▇▇▇▇▇▇.▇▇▇ in
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issuing (i) a joint press release on or around the Effective Date regarding the
relationship established through this Agreement and (ii) a joint press release
on or around the date the service is launched. Each party shall agree on the
form and content of such press release and will furnish its written acceptance
of, or comments on, the proposed announcement within 48 hours of receiving a
draft of the press release from the other party for approval; otherwise such
proposed announcement will be deemed approved. 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 or delayed unreasonably;
provided, however, that, in no event will Company make any press release or
other public announcement that refers to any [*] including without limitation
[*]
(e) Cooperation. Company shall cooperate with ▇▇▇▇▇▇.▇▇▇ in the
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performance of ▇▇▇▇▇▇.▇▇▇'s obligations under this Agreement.
(f) Prominence of Marketing. In any marketing or promotional materials
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Company generates, including without limitation on the Company Site or the
Company Database, that refer to Virtual Tour Images or any third party producer
of Virtual Tour Images, Company shall include an equally prominent reference,
[*]=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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in size and placement, to ▇▇▇▇▇▇.▇▇▇ and the Production Services. Any reference
to ▇▇▇▇▇▇.▇▇▇ that Company includes within any marketing or promotional
materials pursuant to this Section 3.1, including without limitation on the
Company Site or the Company Database will be at least as prominent in size and
placement as any reference Company includes in such materials to any third party
producer of Virtual Tour Images. Company agrees to place ▇▇▇▇▇▇.▇▇▇ order entry
links ahead of any order entry links to other third party provider of virtual
tour images.
(g) Disclosure of [*]. Anytime that Company advertises
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or promotes the prices of the Production Services, or the prices of the goods or
services of any third party producer of Virtual Tour Image in connection with
information about ▇▇▇▇▇▇.▇▇▇ or the Production Services, Company must clearly
indicate that it is [*] (as defined below) with respect to each Basic Package
sold to a Company Member. The parties will work together to develop the precise
mutually acceptable language regarding the [*] that Company will display.
3.2 Additional Obligations. ▇▇▇▇▇▇.▇▇▇ and Company will, from time to
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time, use reasonable efforts to cooperate in joint marketing efforts for the
Production Services on such terms and conditions as are mutually agreed. Each
party will assign a project manager to act as the primary liaison with respect
to the relationship provided for hereunder, and all discussions between the
parties with respect to the respective performance of obligations hereunder will
be conducted by these project managers or their designees.
4. FEES
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4.1 Transaction Fees. During the Term, ▇▇▇▇▇▇.▇▇▇ will pay [*] to
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Company as follows:
(a) With respect to [*] fulfilled by ▇▇▇▇▇▇.▇▇▇ during the Term
through which ▇▇▇▇▇▇.▇▇▇ Images are linked to a Company Site or the Company
Database, ▇▇▇▇▇▇.▇▇▇ will pay to Company for each [*] collected from sales of
[*] so sold during the quarter. The parties agree that, with respect to each [*]
purchased by a Company Member during the Term, Company will remit to such
Company Member, out of the Transaction Fees it receives for such purchase, [*]
of the Transaction Fees paid to Company with respect to such purchase.
▇▇▇▇▇▇.▇▇▇ will administer [*] on behalf of Company, provided that Company will
assist ▇▇▇▇▇▇.▇▇▇ in such administration as reasonably requested.
(b) No Transaction Fees will be due hereunder (i) with respect to
Production Services sold to third parties other than as expressly set forth
above and (ii) with respect to any Production Services ▇▇▇▇▇▇.▇▇▇ distributes on
a promotional basis free of charge or at a discounted price.
4.2 Invoices; Reports; Payment of Fees. Calculation of [*] will
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commence immediately for the calendar quarter in which the Effective Date
occurs. ▇▇▇▇▇▇.▇▇▇ will make all payments of Transaction Fees net thirty (30)
days from the end of [*]. With each [*] payment, ▇▇▇▇▇▇.▇▇▇ will provide a
report stating the number of ▇▇▇▇▇▇.▇▇▇ Tours sold in accordance with Section
4.1(a) during the [*] and providing a calculation of the Transaction Fees
payable.
5. PROPRIETARY RIGHTS
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5.1 ▇▇▇▇▇▇.▇▇▇ Technology.
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(a) All ▇▇▇▇▇▇.▇▇▇ Technology, whether or not produced for
Company Members and whether or not linked to the Company Site or the Company
Database, are, and at all times will remain, the exclusive property of
▇▇▇▇▇▇.▇▇▇, and no provision of this Agreement implies any transfer to Company
or Company Members of any ownership interest in any ▇▇▇▇▇▇.▇▇▇ Technology.
(b) ▇▇▇▇▇▇.▇▇▇ hereby grants to Company a nonexclusive,
worldwide, royalty-free, nontransferable license to include on the Company Site
and the Company Database links in ▇▇▇▇▇▇.▇▇▇ Images on ▇▇▇▇▇▇.▇▇▇'s servers
solely for the purposes contemplated in this Agreement. The foregoing license
does not include any right to grant or authorize sublicenses.
5.2 Trademarks.
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(a) ▇▇▇▇▇▇.▇▇▇ owns and at all times will continue to own the
trademarks, service marks and/or trade names ▇▇▇▇▇▇.▇▇▇ 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 (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, with
▇▇▇▇▇▇.▇▇▇'s prior written approval, which ▇▇▇▇▇▇.▇▇▇ will not unreasonably
withhold or delay, solely in connection with (i) the filing by Company of a
registration statement as part of a public offering of Company's securities and
(ii) promotion and marketing of the Production Services as provided in Section
3. 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, solely in
connection with (i) promotion and marketing of the Production Services and (ii)
the filing by ▇▇▇▇▇▇.▇▇▇ of a registration statement as part of a public
offering of ▇▇▇▇▇▇.▇▇▇'s securities. 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.
5.3 Limitation on Grant of Rights. Except as expressly provided herein,
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neither party receives any other right or license to the technology or
intellectual property of the other party.
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 terminate on October 31, 2000
(the "Initial Term"). Thereafter, this Agreement will be automatically renewed
for successive one (1) year periods (each such period a "Renewal Term") 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, (i) Company and ▇▇▇▇▇▇.▇▇▇ will
cease all use of marks of the other party and (ii) Company will cease all use of
the ▇▇▇▇▇▇.▇▇▇ Technology and will purge all such ▇▇▇▇▇▇.▇▇▇ Technology from its
servers, systems and products.
6.2 Termination for Breach. This Agreement will terminate in the
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event aparty 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
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-3-
commenced cure during the sixty-day notice period and pursues cure of the breach
in good faith.
6.3 Survival of Certain Terms. The provisions of Sections 5.1(a), 5 2(a),
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5 3, 6.1, 6.3, 7, 8, 9 and 10 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. CONFIDENTIALITY
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Except as expressly provided in this Agreement, neither party will use or
disclose the Confidential Information of the other party without prior written
permission of such other party. 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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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. EXCEPT AS PROVIDED IN SECTION 10.3, THE
WARRANTIES PROVIDED BY THE PARTIES HEREIN 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. LIMITATION OF LIABILITY
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EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 7, 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.
10. GENERAL PROVISIONS
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10.1 Notices. Any notice required or permitted by this Agreement
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will bedeemed 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
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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. 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 Representations and Warranties.
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(a) ▇▇▇▇▇▇.▇▇▇ represents and warrants to Company that, to the
best of ▇▇▇▇▇▇.▇▇▇'s knowledge:
(i) the "▇▇▇▇▇▇.▇▇▇ Technology" or "▇▇▇▇▇▇.▇▇▇
Images" do not and will not contain any content, materials, advertising or
services that infringe on or violate any applicable law or regulation or any
proprietary right of any third party;
(ii) it has all necessary rights to grant the rights
to Company as set forth in this Agreement;
(iii) the grant by ▇▇▇▇▇▇.▇▇▇ of such rights to
Company does not and will not infringe on, or violate any, proprietary right of
any third party;
(iv) it has the power and authority to enter into
and perform its obligations under this Agreement; and
(v) to the best of its knowledge, it currently has
no restrictions that would impair its ability to perform its obligations under
this Agreement.
(b) Company represents and warrants to ▇▇▇▇▇▇.▇▇▇ that, to the best
of Company's knowledge:
(i) the Company Site, Company Database, Company
Marks and any advertising materials produced by Company pursuant to Section 3.1
do not and will not contain any content, materials, advertising or services that
infringe on or violate any applicable law or regulation or any proprietary right
of any third party;
(ii) the grant by Company of any rights to
▇▇▇▇▇▇.▇▇▇ hereunder does not and will not infringe on, or violate any,
proprietary right of any third party;
(iii) it has the power and authority to enter into
and perform its obligations under this Agreement; and
(iv) to the best of its knowledge, it currently has
no restrictions that would impair its ability to perform its obligations under
this Agreement.
10.4 Indemnification.
---------------
(a) ▇▇▇▇▇▇.▇▇▇ Indemnification. ▇▇▇▇▇▇.▇▇▇ shall indemnify
--------------------------
and hold Company, its officers, directors, agents and employees, harmless from
any and all losses, costs, settlements, fees, including reasonable attorneys'
fees at all levels (payable as incurred), or liability arising out of any claim
by a third party seeking remedies at law or equity as a result of conduct by
▇▇▇▇▇▇.▇▇▇ that constitutes a breach of any warranty, representation or covenant
given by ▇▇▇▇▇▇.▇▇▇ in this Agreement, including, but not limited to, any claim
for infringement of a third
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party's intellectual property rights, except for infringement claims based upon
works or data created or supplied by Company.
(b) Company Indemnification. Company shall indemnify and hold
-----------------------
▇▇▇▇▇▇.▇▇▇, its officers, directors, agents and employees harmless from any and
all losses, costs, settlements, fees, including reasonable attorneys' fees at
all levels (payable as incurred), or liability arising out of any claim by a
third party seeking remedies at law or equity as a result of conduct by Company
that constitutes a breach of any warranty, representation or covenant given by
Company in this Agreement, including, but not limited to, any claim for
infringement of a third party's intellectual property rights, except for
infringement claims based upon any works or data created or supplied by
▇▇▇▇▇▇.▇▇▇.
(c) Procedures In The Event Of An Indemnification Claim. !n the event
---------------------------------------------------
of any claim for indemnification, the indemnified party shall give prompt
written notice of such claim to the indemnifying party and selection of defense
counsel. The indemnifying party shall be entitled to defend and settle such
claim, at its expense and using counsel mutually selected by the indemnified and
indemnifying party, provided that any settlement does not subtract from any
rights granted to the indemnified party under this Agreement. The indemnified
party shall cooperate with the indemnifying party in the defense of any claim
subject to this Section.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇▇▇.▇▇▇, INC. MULTIPLE LISTING SERVICE OF NORTHERN
ILLINOIS
By: /s/ ▇▇▇▇▇▇ Field By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------- --------------------------------
Title: Vice President Title: CEO
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Date: 5/26/99 Date: 5/26/99
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