EXHIBIT 10.3
LISTINGS LICENSE AGREEMENT
THIS LISTINGS LICENSE AGREEMENT (the "Agreement") dated this 5th day of
August, 2003 by and among CENDANT CORPORATION, a Delaware corporation with an
office located at 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Cendant") and HOMESTORE, INC., a Delaware corporation with an office located
at 00000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000 (collectively
with its affiliates, successors and assigns, "Homestore").
W I T N E S S E T H:
WHEREAS, Cendant is the parent of the franchisors (the "Franchisors"),
respectively, of the CENTURY 21(R), ERA(R) and COLDWELL BANKER(R) real estate
brokerage franchise systems and the owner of NRT Incorporated (collectively, the
"Systems"); and
WHEREAS, Homestore maintains one or more web sites on the Internet that
provide to consumers, inter alia, access to real estate listings and other
information regarding real estate opportunities; and
WHEREAS, a dispute has arisen between Cendant, including certain
Cendant subsidiaries, and Homestore, including certain Homestore subsidiaries,
concerning the October 26, 2000 Agreement and Plan of Reorganization (the
"Reorganization Agreement") between the parties; and
WHEREAS, on August 5, 2003, Cendant, Homestore and other related
parties executed a Settlement Agreement and Release ("Settlement Agreement")
resolving the dispute concerning the Reorganization Agreement pursuant to which,
among other things, Cendant and Homestore agreed to execute this Agreement;
WHEREAS, pursuant to the Settlement Agreement, Homestore desires to
obtain from Cendant the Listing Data and Broker Agent Data (as defined in the
Master Operating Agreement executed as of October 26, 2000, which hereinafter
shall be referred to as the "Master Operating Agreement") compiled by or on
behalf of a Cendant Party from time to time during the term of this Agreement,
(except to the extent that Homestore obtains Listings and Broker Agent
Information pursuant to any MLS Agreement (as hereinafter defined)), and Cendant
desires to provide the Listing Data to Homestore for display on the Sites as
additional advertising exposure for the Listings; and,
WHEREAS, notwithstanding any expiration or termination of the Master
Operating Agreement (and solely for reference and definition purposes with
respect to this Agreement), all capitalized terms not otherwise defined herein
shall have the meanings set forth in the Master Operating Agreement, which
meanings shall survive any such expiration or termination.
NOW, THEREFORE, in consideration of the promises and covenants
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
Section 1. TERM. The term of this Agreement (the "Term") shall commence
on August 5, 2003 and shall terminate at the close of business on December 31,
2040, unless earlier terminated in accordance with the terms herein set forth.
Section 2. LICENSE.
(a) Non-Exclusive License. Subject to the terms and conditions of
this Agreement (including, but not limited to the restrictions set forth in
Section 2(f) hereof), Cendant hereby grants to Homestore, during the Term, a
non-exclusive, fully paid-up, royalty-free license to (i) use, cache and
reproduce the Listing Data and Broker Agent Data for public distribution,
transmission and display, (ii) modify and translate the Listing Data and Broker
Agent Data for distribution, transmission and display, (iii) excerpt, summarize,
aggregate and display the Listing Data and Broker Agent Data for marketing and
advertising purposes, and (iv) use the Listing Data and Broker Agent Data in
connection with the distribution of the Listing Data and Broker Agent Data for
Electronic Display, and to do all of the foregoing solely through or on the
Homestore Listing Sites, the Homestore Site, the Realtor Site, or through or on
any other website on which XXXXXXX.xxx(R) listings are, from time to time,
displayed (collectively, the "Sites"). The aforementioned license grant is
restricted to use of the Listing Data and Broker Agent Data, but may be viewed
on a worldwide basis. Homestore shall have the right, but not the obligation, to
so utilize the Listing Data and Broker Agent Data at the Sites during the Term.
Cendant's obligations with respect to its licensing of the Listing Data and
Broker Agent Data to Homestore does not represent a guaranty or warranty that
Cendant will provide to Homestore any and all Listing Data and Broker Agent
Data, but only that Cendant will use reasonable efforts to provide (or make
available) to Homestore such Listings Data and Broker Agent Data to the extent
that Homestore is unable (despite reasonable efforts) to obtain the information
contained in such Listing Data and Broker Agent Data from an MLS. Homestore
shall not, except for the use of Listings Data and Broker Agent Data for
Electronic Display, have any right to sublicense to any other parties or third
parties the rights granted in this Section 2(a) without Cendant's prior written
consent, which consent shall be given or withheld at Cendant's sole discretion
and election. Subject to the terms and conditions of this Agreement (including,
but not limited to the restrictions set forth in Section 2(f) hereof), Homestore
shall have the further right, at its own expense, to modify or have modified the
Listing Data and Broker Agent Data to make such Listing Data and Broker Agent
Data reasonably consistent with the look and feel of the Sites and the editorial
and technical standards of Homestore as they may exist from time to time.
Homestore shall not, without Cendant's prior written consent, remove broker
identifying information that may appear on, in, or with the Listings Data and
Broker Agent Data; provided, however, Homestore may remove marks or logos of
third parties where Homestore has evidenced to Cendant in writing that Homestore
shall forever release and hold harmless Cendant from and against any and all
liability with respect to such removal. In addition, Homestore shall reproduce
such broker identifying
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information on any reproductions or copies that may be authorized pursuant to
this Section 2(a). To the extent that Homestore displays the Listing Data and
Broker Agent Data that is provided by Cendant, Homestore agrees to update the
Listing Data and Broker Agent Data displayed by Homestore promptly upon
receiving updated Listing Data and Broker Agent Data from Cendant (and/or any
related Listings from MLS) and agrees that, with each subsequent update of the
Listing Data and Broker Agent Data (and/or related Listings) displayed by
Homestore, the license shall terminate with respect to any obsolete or modified
information previously provided by Cendant as part of the Listing Data and
Broker Agent Data. Notwithstanding the foregoing, it shall be the responsibility
of Homestore (and Cendant shall have no obligation or liability) to reconcile
the Listing Data and Broker Agent Data with information on Listings received
from any MLS or other sources, and Homestore shall not be obligated to
incorporate other information provided by Cendant on any Listing Data or Broker
Agent Data to the extent Homestore has received the same information from
another source. Nothing in this Section 2(a) shall prohibit Homestore from
obtaining Listings or Broker Agent Information from any MLS or other third party
sources so long as such MLS and those other third party sources have the right
to provide said Listings or Broker Agent Information to Homestore.
(b) Listings Content Provided "As Is". Homestore acknowledges and
agrees that Cendant is providing the Listing Data or Broker Agent Data to
Homestore "As Is" without any warranties, either express or implied, whatsoever
with respect to the Listing Data or Broker Agent Data (including, without
limitation, any implied warranty of merchantability or fitness for a particular
purpose), its quality, quantity, substance, accuracy, and/or timeliness.
(c) Listings Delivery. During the Term, Cendant shall use
reasonable efforts to deliver the Listing Data or Broker Agent Data (or a
portion thereof, if reasonably requested by Homestore) to Homestore in the
format(s) and through the transfer protocol(s) that Cendant then-currently uses
to provide similar listing data to its other customers (or as otherwise agreed
to in writing by the parties), which Listing Data or Broker Agent Data shall be
provided one (1) time per day unless otherwise agreed to by the Parties in
writing.
(d) No Referral Fees. Homestore agrees that in no event will
Homestore attempt to charge a fee to Cendant (including its affiliates,
successors or assigns) or any Franchisee of Cendant in connection with the
Listing Data and/or any use, display, reproduction, or transfer thereof, other
than in connection with Homestore's provision of products or services to such
person pursuant to an agreement directly between such person and Homestore,
without the prior consent of Cendant, which consent shall be given or withheld
at Cendant's sole discretion and election. This Section 2(d) shall be deemed a
continuing obligation and shall survive and remain in full force and effect for
a period of three (3) years after termination or expiration of this Agreement.
Notwithstanding the above, Homestore represents and warrants that it believes
that pursuant to its current operating agreement with the National Association
of Realtors ("NAR") or any other current agreement between Homestore and NAR,
Homestore is
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effectively precluded from charging real estate brokers and real estate sales
associates a referral fee for any customer referrals made by Homestore to real
estate brokers or real estate sales associates.
(e) Multiple Listing Service ("MLS") Agreement. Nothing contained
in this Agreement shall be deemed to prohibit Homestore from obtaining Listing
Data, Listings, Broker Agent Information or Broker Agent Data pursuant to any
agreement Homestore may have with an MLS or any other third party aggregator of
residential real estate brokerage listings not affiliated with Cendant. Should
Cendant become in Control of any MLS or any other third party aggregator of
residential real estate brokerage listings in the future that has an agreement
with Homestore, Cendant will honor any such agreement to which it is a successor
in interest, until either (i) the applicable MLS or other third party aggregator
agreement expires or (ii) there is a Change of Control of Homestore pursuant to
which Homestore is Controlled by an Excluded Business or, Homestore is no longer
the operator of the official website of the National Association of Realtors,
whichever occurs first. For purposes of this provision, the phrase "Excluded
Business" shall mean any person or entity of any type that competes directly
with any business that is encompassed in the Cendant Real Estate Division at the
time of such Change of Control. For purposes of this provision, "Cendant Real
Estate Division" shall mean the businesses operated by Coldwell Banker Real
Estate Corporation, Century 21 Real Estate Corporation, ERA Franchise Systems,
Inc., NRT Incorporated, Cendant Mortgage Corporation and Cendant Mobility
Services Corporation including their respective subsidiaries. For the purposes
of this Agreement, the term "MLS" means any entity, facility or operation for
which real estate brokerage participants have consented to the delivery or
exchange of their real property listing, sale or rental information that has
generally been established for real estate brokerages and/or real estate
appraisal participants in order to facilitate the orderly accumulation and
dissemination of a database of real property listing, sale or rental information
among such participants and whereby offers of cooperation are made among the
brokerage participants with respect to real property listings. The term MLS
shall not include Virtual Office Websites as the phrase "Virtual Office
Websites" is defined by general industry standards; provided, however, MLSs that
use or assist their participants in using Virtual Office Websites shall not be
excluded from the definition of "MLS."
(f) Notwithstanding the license rights set forth in Section 2(a)
hereof, Homestore shall not, directly or indirectly, and shall not encourage any
other person to, directly or indirectly, either alone or in concert with any
other person, use, reproduce, distribute, transmit, display, modify, translate,
create excerpts from, summarize, or aggregate the Listing Data or Broker Agent
Data in any manner that results in an inaccurate representation of the Listing
Data or Broker Agent Data made available by Cendant or that otherwise undermines
the intent of this Agreement.
Section 3. INSURANCE. (a) Commencing on the date of this Agreement and
continuing through the earlier of December 31, 2040 or a period of not less than
six (6) months after the termination of this Agreement, Homestore will (at no
additional cost to Cendant) secure and maintain the following policies of
insurance:
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(i) Comprehensive general liability insurance on an occurrence
basis (including the following types of coverage: independent
contractors, contractual, products and completed operations,
and broad form property damage) with combined single limits of
not less than Four Million Dollars ($4,000,000) per occurrence
and aggregate annual limits of not less than Ten Million
Dollars ($10,000,000) (it being acknowledged that such coverage
limit need not be in excess of the foregoing amount);
(ii) Contractual Liability Insurance in an amount not less than one
million dollars ($1,000,000.00) per occurrence, subject to the
aggregate annual limit described in 3(i) above;
(iii) Professional Liability and Errors and Omissions Liability
Insurance covering acts, errors, omissions, and
equipment/machine malfunctions arising out of Homestore's (or
its agents') operations or services in an amount not less than
five million dollars ($5,000,000.00)] per occurrence, with an
annual aggregate limit of not less that ten million
($10,000,000.00)(it being acknowledged that such coverage limit
need not be in excess of the foregoing amount); and
(iv) Crime Insurance (including Fidelity Bond, Employee Dishonesty,
and Computer Fraud Coverage) covering losses arising out of or
in connection with any fraudulent or dishonest acts committed
by Homestore's (or its agents') personnel, acting alone or with
others, with an aggregate limit of not less than one million
dollars ($1,000,000.00) per year.
Homestore represents that Cendant and its affiliates and their
respective officers, directors, employees and agents shall be included as
additional insureds and shall be primary for all purposes. All policies shall be
endorsed with a statement that the coverage may not be canceled, altered or
permitted to lapse or expire without thirty (30) days advance written notice to
Cendant, that the coverage shall be primary and that any insurance carried by
Cendant or its affiliates shall be non-contributory to such coverage. The names
of Homestore and Cendant as identified in the policies shall be identical to the
names of Homestore and Cendant as identified in this Agreement. If an umbrella
policy is used to satisfy any required coverage of this Section 3, such policy
shall be at least "Follow-Form" with the requirements described in this Section
3 and not limit the coverage of any other policies used to provide coverage
under this Section 3.
(b) Simultaneously with the execution of this Agreement, and each
time a change is made in any insurance policy described in Section 3(a) above
(including, without limitation, a change in the carrier of any such policy),
Homestore will furnish to Cendant a certificate of insurance evidencing the
applicable insurance coverages in effect and the corresponding named insured and
additional insureds, and endorsed with a statement that the coverage may not
canceled, altered or permitted to lapse or expire without thirty (30) days'
advance written notice to Cendant. Failure to demand such
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certificates or other evidence of full compliance with these insurance
requirements or failure of Cendant to identify a deficiency from evidence that
is provided, shall not be construed as a waiver of obligation to maintain such
insurance.
(c) All policies required by this Agreement shall be written by
insurance carriers rated "A" or better by A.M. Best. No "cut through"
endorsements shall be acceptable. All policies shall provide that the insurer
waives any right of subrogation against Cendant. By requiring insurance as
provided in this Section, Cendant does not represent that coverage and limits
will be necessarily adequate to protect Cendant and its affiliates, and their
officers, directors, employees and agents, and such limits shall not be deemed
as a limitation of Homestore's liability under this Agreement.
Section 4. INDEMNIFICATION & LIMITATION OF LIABILITY.
(a) Indemnification By Cendant. Cendant shall indemnify, defend,
and hold harmless each of Homestore and its Affiliates and the directors,
officers, and employees of Homestore and such Affiliates and the successors and
assigns of any of the foregoing (the "HOMESTORE INDEMNITEES"), from and against
any and all liabilities (including, but not limited to, actions under or related
to the Fair Housing Act), damages, settlements, claims, actions, suits,
penalties, fines, costs or expenses (including, without limitation, reasonable
attorneys' fees and other expenses of litigation) incurred by any Homestore
Indemnitee, arising from or occurring as a result of any claim, action, suit or
other proceeding brought by third parties against a Homestore Indemnitee arising
out of or resulting from: (i) any claim of any violation or misappropriation of
a third party's Intellectual Property Rights in connection with Cendant-owned
Data (if any) provided to Homestore hereunder or Cendant Intellectual Property
Rights, or (ii) any breach of Cendant's representations and warranties under
this Agreement, or (iii) any inaccuracies in the Listing Data that are knowingly
introduced by a Cendant Party with willful misconduct or gross negligence, and
with the intent to cause harm and/or damage, or (iv) any breach by Cendant of
its obligations set forth in Section 12 hereof. Notwithstanding the foregoing,
Cendant shall have no obligation under this Section 4(a) with respect to
liabilities, damages, settlements, claims, actions, suits, penalties, fines,
costs or expenses, to the extent the same is caused by the gross negligence or
willful misconduct of a Homestore Indemnitee.
(b) Indemnification By Homestore. Homestore shall indemnify,
defend, and hold harmless each of the Cendant Parties and the Affiliates and the
directors, officers, and employees of Cendant, the Cendant Parties and such
Affiliates and the successors and assigns of any of the foregoing (the "CENDANT
INDEMNITEES"), from and against any and all liabilities (including, but not
limited to, actions under or related to the Fair Housing Act), damages,
settlements, claims, actions, suits, penalties, fines, costs or expenses
(including, without limitation, reasonable attorneys' fees and other expenses of
litigation) incurred by any Cendant Indemnitee, arising from or occurring as a
result of any claim, action, suit, or other proceeding brought by (A) third
parties against a Cendant Indemnitee arising out of or resulting from (i) any
claim of any violation or misappropriation of a third party's Intellectual
Property Rights in connection with the
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Homestore Intellectual Property Rights, or (ii) any breach of Homestore's
representations and warranties under this Agreement, or (iii) any use of the
Listing Data pursuant to this Agreement, or (iv) any breach by Homestore of its
obligations set forth in Sections 2(f), 9, and 12, hereof, or (B) any Cendant
Indemnitee against Homestore arising out of or resulting from any breach by
Homestore of its obligations and/or restrictions set forth in Sections 2(a),
2(d), 9, and 12 hereof. Notwithstanding the foregoing, Homestore shall have no
obligation under this Section 4(b) with respect to liabilities, damages,
settlements, claims, actions, suits, penalties, fines, costs or expenses, to the
extent the same is caused by the gross negligence or willful misconduct of a
Cendant Indemnitee.
(c) A Party (for purposes of this Section 4, the "INDEMNITEE")
that intends to claim indemnification under any provision of this Agreement
shall promptly notify the indemnifying Party (the "INDEMNITOR") in writing of
any claim, action, suit, or other proceeding brought in respect of which the
Indemnitee or any of its Affiliates, or their directors, officers, employees,
successors or assigns intend to claim such indemnification hereunder. As between
the Parties hereto, the Indemnitor shall have the right to control the defense
and settlement of such claim, action, suit or other proceeding; provided, that
the Indemnitee shall have the right to participate in such defense or settlement
with counsel of its own choosing at its expense. The Indemnitee shall reasonably
cooperate with the Indemnitor hereunder as reasonably requested and at the
Indemnitor's expense. Notwithstanding the foregoing, the indemnity agreement in
this Section 4 shall not apply to amounts paid in settlement of any loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Indemnitor, to the extent such consent is not withheld or delayed
unreasonably. An Indemnitor shall not enter into any settlement which requires
the Indemnitee to admit to any culpability or liability, or obligates the
Indemnitee to pay any amounts or agree to any form of injunctive relief, without
the Indemnitee's prior written consent, which consent shall not be unreasonably
withheld or delayed. The failure to deliver written notice to the Indemnitor
within a reasonable time after the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such Indemnitor
of any liability to the Indemnitee under Section 4 that would have otherwise
been mitigated or eliminated but for such failure to deliver timely notice, but
the omission so to deliver written notice to the Indemnitor shall not relieve
the Indemnitor of any liability that it may have to any Indemnitee otherwise
than under Section 4. The Parties shall keep each other fully informed of the
progress of any claim, action, suit, or other proceeding regarding an
indemnification claim made under this Section 4.
(d) Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED BELOW IN
THIS SECTION 4(D), NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER
PARTY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS OR LOST SAVINGS) ARISING FROM, RELATING TO, OR
IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE
POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THIS LIMITATION OF LIABILITY
APPLIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN
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CONTRACT, TORT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE IN
THIS SECTION 4(D) SHALL NOT APPLY TO LOSSES OR DAMAGES AGAINST WHICH THE PARTIES
HAVE AGREED TO INDEMNIFY EACH OTHER PURSUANT TO SECTIONS 4(A) AND 4(B) OF THIS
AGREEMENT.
(e) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, EACH PARTY
EXPRESSLY DISCLAIMS ANY FURTHER OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS
THE OTHER PARTIES FROM ANY CLAIMS OR LOSSES ARISING HEREUNDER.
Section 5. ACKNOWLEDGEMENTS. (a) Homestore acknowledges that, except
for NRT, Cendant and the Franchisors are franchisors and not the owners or
operators of real estate brokerage offices and that the information contained in
the Listing Data is provided to Cendant by the Franchisees. Notwithstanding
anything to the contrary contained in this Agreement, except as provided below,
Homestore acknowledges that the Franchisees may use the information in the
Listing Data freely and that Cendant cannot restrict the Franchisees' use of
such information. No such use of the information contained in the Listing Data
by a Franchisee shall constitute a violation by Cendant of this Agreement.
(b) Cendant shall not, directly or indirectly, and shall not
encourage any other person to, directly or indirectly, take any action, either
alone or in concert with any other person, designed to (i) reduce the quality,
quantity, substance, accuracy (if any), or timeliness of Listings, Listings
Data, Broker Agent Information or Broker Agent Data available to Homestore from
any MLS, any Cendant Party, any Franchisee of a Cendant Party, any other source
Controlled by any Cendant Party, or any other source wholly owned by one or more
Franchisees of any Cendant Party (as the terms "Franschisee" and "Controlled"
and the phrase "Cendant Party" or Cendant Parties" are defined in the Master
Operating Agreement) so long as such person remains a Cendant Party, a
Franchisee of a Cendant Party, Controlled by any Cendant Party, or wholly owned
by one or more Franchisees of a Cendant Party or (ii) otherwise undermine the
intent of this Agreement. Clause (i) of the preceeding sentence shall be deemed
a continuing obligation and shall survive and remain in full force and effect
for a period of three (3) years after termination or expiration of this
Agreement. Notwithstanding the foregoing, Homestore acknowledges that Cendant is
the parent corporation of numerous affiliates (e.g., Cendant Mobility Services
Corporation) that engage in the ordinary course of business in activities
ancillary to their core businesses that may overlap with the license rights
contained in the provisions of this Agreement, and Homestore acknowledges that
such activities by such affiliates shall not constitute a violation of this
Agreement. Homestore agrees that nothing in this Agreement shall be deemed to
prohibit Cendant from recommending to its Brands' Franchisees (as the terms
"Brand" and "Franchisee" are defined in the Master Operating Agreement) that
they provide the Listings Data, Broker Agent Information or Broker Agent Data to
other MLSs or other third party aggregators of real estate information (e.g.
Yahoo, Homefinders, etc.), so long as such recommendation does not affect
Homestore's access to data from any source.
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Section 6. TERMINATION.
Cendant may, with or without cause and at Cendant's option and in
Cendant's complete and sole discretion, terminate this Agreement and revoke the
licenses granted pursuant to Section 2 hereof upon providing Homestore with
ninety (90) days written notice of Cendant's intent to terminate this Agreement
and revoke the licenses. Nothing in this Section 6 shall prohibit Homestore from
obtaining the Listings, Listing Data, Broker Agent Information or Broker Agent
Data from any MLS or other third party sources so long as the MLS and/or those
other third party sources have the right to provide said information or data to
Homestore. The provisions of Section 2(d) and Section 5(b) shall survive
termination and expiration of this Agreement as provided therein.
Section 7. COVENANT NOT TO PROMOTE. During the first two (2) years of
this Agreement, or until this Agreement is terminated pursuant to Section 6
above, whichever occurs first, or unless otherwise agreed to in a separate
writing or agreement between the parties, Cendant will not promote to the
Coldwell Banker, Century 21 or ERA brokers or agents any product that competes
with Homestore's iLead agent web page, iLead office products or any of its
successor products. Notwithstanding the foregoing, Cendant and its Brands may
offer (for sale, at no charge, or otherwise) personal profile pages on its
and/or their national websites. In addition (and notwithstanding the foregoing
or anything contained in the Master Operating Agreement or any other agreement
between the parties prior to the effective date of this Agreement), Cendant and
its Brands shall be permitted to aggregate Listings via third party links from
its and/or their national websites to its or their local websites and to the
Metro websites of NRT Incorporated (which entity Cendant recently acquired
through one of its subsidiaries).
Section 8. REPRESENTATIONS. (a) Each party has full power and authority
and has been duly authorized, to enter into and perform its obligations under
this Agreement, all necessary approvals of any Board of Directors, shareholders,
partners, co-tenants and lenders having been obtained. The execution, delivery
and performance of this Agreement by each party will not violate, create a
default under or breach of any charter, bylaws, agreement or other contract,
license, permit, indebtedness, certificate, order, decree or security instrument
to which such party or any of its principals is a party or is subject. Neither
party is the subject of any current or pending dissolution, receivership,
bankruptcy, reorganization, insolvency, or similar proceeding on the date this
Agreement is executed by such party and was not within the three (3) years
preceding such date. The persons signing this Agreement on behalf of each party
personally represent and warrant to the other party that they are authorized to
execute this Agreement for and on behalf of such party and have full authority
to so bind such party.
(b) Cendant also represents and warrants that: (1) the provision
of any Cendant-owned Data that may be provided to Homestore hereunder does not
violate any rights of any third parties, including, but not limited to, such
violations as infringement or misappropriation of any applicable copyright,
patent, trademark, trade secret, or other
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intellectual property right, (2) the Listing Data (in the form and content
provided by Cendant) shall not include content that is defamatory; (3) as of the
Effective Date, the provision of any Cendant-owned Data that may be provided to
Homestore under this Agreement does not violate any of applicable law or
regulation, including without limitation, any unfair competition or any
applicable anti-discrimination law; and (4) Cendant has all rights necessary to
deliver to Homestore, the entire contents and subject matter contained in the
Listing Data, and any Cendant or band Marks therein.
(c) Homestore also represents and warrants that: (1) Homestore or
its agents shall not introduce into any Listing Data or Broker Agent Data
provided by Cendant hereunder any content or materials which are obscene,
threatening, malicious, libelous, defamatory, scandalous, inflammatory,
pornographic, or profane, (2) Homestore's use of the Listing Data complies with
any and all applicable laws or regulations, and (3) with respect to any
personally identifiable information contained in the Listing Data and Broker
Agent Data, Homestore shall protect such information in accordance with any and
all applicable privacy laws and regulations.
(d) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED ABOVE IN THIS SECTION 8
OR ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE LISTING DATA AND/OR LICENSES GRANTED
HEREUNDER, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF
MERCHANTABILITY, DATA ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
Section 9. TRADEMARKS. (a) During the Term, Cendant grants, or agrees
to cause its affiliates to grant, as the case may be, to Homestore a limited
license to use the registered Marks in connection with the Data Listing, as set
forth in this Agreement, consistent with the identity standards maintained by
the Systems (which Cendant shall provide to Homestore at regular intervals) and,
if any Xxxx is to be supplied other than in the form supplied to Homestore as
part of the Data Listing, subject to Cendant's prior approval, in its reasonable
discretion (which approval shall not be unreasonably withheld, conditioned or
delayed), of any such representation of the Marks. Homestore specifically
acknowledges that, except as expressly provided in this Section 9, this
Agreement does not confer upon Homestore any interest in or right to use any
Marks or other substantially similar intellectual property right of Cendant,
Brands, the Franchisors, or their affiliates (collectively referred to as the
"Cendant Intellectual Property Rights") unless Homestore receives the prior
written consent of Cendant which consent Cendant may grant or withhold in its
sole discretion. Homestore further agrees that upon termination of this
Agreement, Homestore shall immediately cease and discontinue all use of the
Cendant Intellectual Property Rights. Further, if Homestore wishes to utilize
the Cendant Intellectual Property Rights in advertising or promotional
materials, it must submit such materials to Cendant for final written approval
before utilizing them, which approval shall not be unreasonably withheld,
conditioned or delayed by Cendant. In no event may Homestore or any affiliated
or associated person or entity utilize the Cendant Intellectual Property Rights
in connection with any products or services other than the Sites.
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Homestore and Cendant further acknowledge that, except as provided in Section 2
above and in this Section 9, this Agreement does not create or grant any rights
in Homestore to use any intellectual property rights owned or controlled by any
Franchisee, or their affiliates, nor does Cendant wish to grant any such rights.
(b) Cendant specifically acknowledges that this Agreement does not
confer upon Cendant any interest in or right to use any trademark, service xxxx
or other intellectual property right of Homestore or its affiliates
(collectively referred to as "Homestore Intellectual Property Rights") unless
Cendant receives the prior written consent of Homestore which consent Homestore
may grant or withhold in its sole discretion. Cendant further agrees that upon
termination of this Agreement, Cendant shall immediately cease and discontinue
all use of Homestore Intellectual Property Rights. Further, if Cendant wishes to
utilize Homestore Intellectual Property Rights in advertising or promotional
materials, it must submit such materials to Homestore for final approval which
approval Homestore may grant or withhold in its sole discretion, before
utilizing them. In no event may Cendant or any affiliated or associated person
or entity utilize Homestore Intellectual Property Rights in connection with any
products or services other than as provided under this Section 9(b).
Section 10. RELATIONSHIP OF PARTIES. Homestore is an independent
contractor. Neither party is the legal representative or agent of, or has the
power to obligate (or has the right to direct or supervise the daily affairs of)
the other or any other party for any purpose whatsoever. Cendant and Homestore
expressly acknowledge that the relationship intended by them is a business
relationship based entirely on and circumscribed by the express provisions of
this Agreement and that no partnership, joint venture, agency, fiduciary or
employment relationship is intended or created by reason of this Agreement.
Section 11. ASSIGNMENTS. This Agreement may not be assigned by either
party without the prior written consent of the other party, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing, Cendant and/or
Homestore may assign this Agreement to an affiliate or in connection with a
consolidation, merger or sale of substantially all of its assets without the
consent of the other party hereto, provided that such assignee shall assume in
writing all of the obligations hereunder of the assignor. In addition, Cendant
may assign its rights or obligations hereunder to any of its Affiliates.
Section 12. CONFIDENTIALITY. Each party shall at all times keep
confidential all confidential and proprietary information of the other party
(and, in the case of Cendant, Consultant shall keep confidential all
confidential and proprietary information of Cendant's Affiliates, employees,
franchisees, sales associates, brokers, and customers) which is provided to the
other party (or to which the other party has access) during the Term
("Confidential Information"). Neither party (without the prior written consent
of the other party and/or as otherwise specified in this Agreement) shall use
the other party's Confidential Information for any purpose other than as
specified in this Agreement and for the sole purposes of fulfilling their
respective obligations hereunder, and will not disclose any such Confidential
Information to any third parties. To the extent that Homestore has access to
personally identifiable information (including, but not limited
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to, credit card information, social security numbers, and/or account or
financial information, but excluding the Listings Data and Broker Agent Data) of
Cendant's or its Affiliates' employees, franchisees, sales associates, brokers,
or customers, Homestore acknowledges and agrees that such information is highly
confidential and private in nature and agrees to hold such information in the
strictest of confidence, and protect such information, in accordance with
Cendant's privacy policies, the aforementioned confidentiality provisions, and
applicable law. The parties acknowledge that Cendant has provided Cendant's
privacy policies to Homestore as of the date of this Agreement. Further, Cendant
shall provide Homestore with reasonable notice prior to issuing future
modifications to Cendant's privacy policies. Upon termination or expiration of
this Agreement, each party shall (at the other party's option) destroy or return
to the other party all materials containing any Confidential Information of the
other party. In addition, the contents, terms and conditions of this Agreement
shall be kept confidential and may not be disclosed except to the extent such
disclosure is required by applicable law, rule or regulation, legal or judicial
process, or the applicable rules or regulations of the Securities and Exchange
Commission, NASDAQ or any stock exchange on which the securities of Homestore
may be traded.
Section 13. PARTIAL INVALIDITY. Should any part of this Agreement, for
any reason, be declared invalid, such decision shall not affect the validity of
any remaining portion of this Agreement.
Section 14. NO WAIVER. No failure or delay in requiring strict
compliance with any obligation of this Agreement (or in the exercise of any
right or remedy provided herein) and no custom or practice at variance with the
requirements hereof shall constitute a waiver or modification of any such
obligation, requirement, right or remedy or preclude exercise of any such right
or remedy or the right to require strict compliance with any obligation set
forth herein. No waiver of any particular default or any right or remedy with
respect to such default shall preclude, affect or impair enforcement of any
right or remedy provided herein with respect to any subsequent default. No
approval or consent of either party shall be effective unless in writing and
signed by an authorized representative of such party, and such party's consent
or approval may be withheld for so long as Homestore is in default of any of its
obligations under this Agreement.
Section 15. NOTICES. Notices will be effective hereunder when and only
when they are reduced to writing and delivered, by (i) United States first class
mail, postage prepaid, or (ii) by next day delivery service, with proof of
delivery, or (iii) mailed by certified or registered mail, return receipt
requested, to the appropriate party at its address stated below or (iv) to such
person and at such address as may be designated by notice hereunder. Notices
shall be deemed given on the date delivered or date of attempted delivery, if
service is refused.
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Homestore: Cendant:
HOMESTORE, INC. CENDANT CORPORATION
00000 Xxxxxxx Xxxxx Xxxx 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer; Attention: General Counsel
with a copy to Attention : General
Counsel
Section 16. PUBLICITY. Each party shall (a) submit to the other all
advertising, written sales promotions, press releases, and other publicity
matters relating to this Agreement in which the other party's name or xxxx is
mentioned or which contains language from which a relationship with the other
party may be inferred or implied and (b) not publish or use advertising, sales
promotions, press releases or publicity matters without the other party's prior
written consent. The parties acknowledge that any press release announcing the
transaction contemplated by this Agreement may address the duration of the
transaction. Nothing in the Section 16 shall be deemed to prohibit or otherwise
restrict the Parties from complying with disclosure obligations under applicable
law, rules, regulations or court judicial order.
Section 17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by all
Parties and delivered to the other Parties. Each Party shall receive a duplicate
original of the counterpart copy or copies executed by it. For purposes hereof,
a facsimile copy of this Agreement, including the signature pages hereto, shall
be deemed to be an original. Notwithstanding the foregoing, the Parties shall
each deliver original execution copies of this Agreement to one another as soon
as practicable following the execution thereof.
Section 18. MISCELLANEOUS. This Agreement will be construed in
accordance with the laws of the State of New York, except for New York's
conflict of laws principles. Homestore and Cendant consent to the personal
jurisdiction of the courts of the State of New York and the United States
District Court for the Southern District of New York and further waives
objection to venue in any such court in connection with any action to enforce
the provisions of this Agreement, to recover damages or other relief for breach
of default of this Agreement, or otherwise arising under or by reason of this
Agreement. This Agreement is exclusively for the benefit of the parties hereto
and may not give rise to liability to a third party. No agreement between either
party hereto and anyone else is for the benefit of the other party hereto.
Neither party will interfere with contractual relations of the other. The
section headings in this Agreement are for convenience of reference only and
will not affect its interpretation.
This Agreement, together with all instruments, exhibits, attachments and
schedules hereto, constitutes the entire agreement (superseding all prior
agreements and understandings, oral or written) of the parties hereto with
respect to the subject matter hereof and shall not be modified or amended in any
respect except in writing executed by all such parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
CENDANT CORPORATION
BY: /s/ X. Xxxxxxxx Xxxxxxxx, IV
_____________________________
Title: Senior Vice President,
Legal
HOMESTORE, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
_____________________________
Title: EVP & General Counsel
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