EXHIBIT 10.36
EXECUTION DRAFT
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of June 10, 1999 (the "Effective Date"), between ▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation with an office located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇.▇▇▇"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ & Associates, an Illinois
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 (definitions appear
in Additional Terms and Conditions):
1. [*] Company will [*]. In return, ▇▇▇▇▇▇.▇▇▇ will provide [*]. Company will
use [*] by [*] ▇▇▇▇▇▇.▇▇▇ will provide an invoice to Company by May 28,
1999. Company will remit payment to ▇▇▇▇▇▇.▇▇▇ of [*].
2. ▇▇▇▇▇▇.▇▇▇ 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.
Company will permit linking of the Company Sites to ▇▇▇▇▇▇.▇▇▇ Images, and
the parties will used best efforts to work together to implement this
system within fourteen (14) days of the Effective Date, and maintain the
system throughout the term of this Agreement. Additionally, Company will
use commercially reasonable efforts to link each such ▇▇▇▇▇▇.▇▇▇ Image to
the appropriate listings on the Company Sites by the end of the business
day following the day ▇▇▇▇▇▇.▇▇▇ makes such ▇▇▇▇▇▇.▇▇▇ Image available on
the ▇▇▇▇▇▇.▇▇▇ server.
3. 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.
4. Marketing and Promotion.
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▇▇▇▇▇▇.▇▇▇ agrees to:
. Include Company, including use of its logo, as a partner on
▇▇▇▇▇▇.▇▇▇'s website and in marketing material, as ▇▇▇▇▇▇.▇▇▇ deems
appropriate.
. Provide fifty (50) listing presentation kits;
. Educate each Company office on the benefits of using the Internet in
real estate and methods of integrating ▇▇▇▇▇▇.▇▇▇ Tours into the Sales
Agents' marketing strategy:
. Provide custom order forms for Sales Agents;
. Discuss other joint marketing opportunities, including collaboration
on email and direct marketing material from time to time.
Company agrees to:
. Hold on in-office presentation by a ▇▇▇▇▇▇.▇▇▇ representative with
each Company office within the first thirty (30) days of the Effective
Date. Company will send out a communication from a Company executive,
including a statement, encouraging them to use ▇▇▇▇▇▇.▇▇▇'s Production
Services, to each Sales Agent within the first fourteen (14) days
following the Effective Date.;
. Include an electronic order form and a description of the ▇▇▇▇▇▇.▇▇▇
Production Services on the Company Sites that allows Sales Agents to
submit orders to ▇▇▇▇▇▇.▇▇▇. Maintain a gallery of ▇▇▇▇▇▇.▇▇▇ Images
on the Company Site;
. Include description, demonstration of the ▇▇▇▇▇▇.▇▇▇ Production
Services and marketing materials in Company sponsored training and
seminars for Sales Agents;
. 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, newspapers and
general mailings distribution to clients and potential clients.
5. 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.
▇▇▇▇▇▇.▇▇▇, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ & ASSOCIATES
By: /s/ ▇▇▇▇▇▇ ▇. Loszlo By: /s/ [SIGNATURE ILLEGIBLE]
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Name/Title: SUP Bus. Dev. Name/Title: [SIGNATURE ILLEGIBLE]
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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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"Basic Package" means four scenes captured at a designated property and placed
on one website.
"▇▇▇▇▇▇.▇▇▇ Image" means an electronic image of a property produced by or on
behalf of ▇▇▇▇▇▇.▇▇▇.
"▇▇▇▇▇▇.▇▇▇ Technology" means all ▇▇▇▇▇▇.▇▇▇ images and software and hardware,
and 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.
"Company sites means the collection of HTML documents residing on servers
operated by or for Company or its affiliates ,including without limitation
Company's Intranet, extranet and public rebate.
"Confidential Information" means any trade secrets, confidential data or other
confidential information, and 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").
"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 endorse into
agreements to capture Images at designated sites on ▇▇▇▇▇▇.▇▇▇'s behalf.
"Term" means the initial Term of this Agreement and the Renewal Terms, if any,
as set in forth in Section 4 on the first page of this Agreement.
"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 Informational 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 degrees 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, or as required by statute, regulation or other law.
3. ▇▇▇▇▇▇.▇▇▇ Technology
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3.1 ▇▇▇▇▇▇.▇▇▇ Technology will remain, the exclusive property of ▇▇▇▇▇▇.▇▇▇,
and no provision of this Agreement implies any transfer to Company of any
ownership interest in any ▇▇▇▇▇▇.▇▇▇ Technology.
3.2 ▇▇▇▇▇▇.▇▇▇ hereby grants to Company a nonexclusive, worldwide, royalty-
free, nontransferable license to include links to the ▇▇▇▇▇▇.▇▇▇ Images on
the Company Sites and Hosted Sites solely for the purposes comtemplated in
this Agreement. Company will not distribute, modify, edit, or prepare
derivative works from the ▇▇▇▇▇▇.▇▇▇ Images without the prior written
permission of ▇▇▇▇▇▇.▇▇▇. The foregoing license does not include any right
to grant or authorize sublicenses.
4. Trademarks
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4.1. ▇▇▇▇▇▇.▇▇▇ own 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's 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.
4.2 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 promotion and marketing of the
Production Services and/or Company financing. Subject to the restrictions
set forth herein, Company hereby grants financing. Subject to the
restrictions set forth herein, ▇▇▇▇▇▇.▇▇▇ a nonexclusive, worldwide,
royalty-free, fully paid up, nontransferable right to use the Company
Marks, during the Term, solely in connection with promotion and marketing
of the Production Services and/or ▇▇▇▇▇▇.▇▇▇ 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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6.1 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.
6.2 This Agreement will terminate in the event a party breaches any material
term, condition or representaion 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.
6.3 The provisions of Sections 2, 3.1, 4.1, 5, 6.1, 6.3, 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 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 ▇▇▇▇▇▇.▇▇▇ 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 the 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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