EXHIBIT 10.8
SNAP PROMOTION AGREEMENT
HomeShark
This Promotion Agreement (the "Agreement") is dated as of October 19, 1998 (the
"Effective Date") between Snap! LLC, a Delaware limited liability company
("Snap"), and HomeShark, Inc., a California corporation (the "Company").
Pursuant to this Agreement, Snap will provide various promotions to the Company
to assist the Company in promoting its Internet site and the products and
services offered through its Internet site. Accordingly, the parties hereby
agree as follows:
1. Background.
1.1 The Company operates an Internet site located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ designed to provide Internet-based residential
property listings, mortgage information, mortgage loan application and
processing services, and other real estate and mortgage-related
products and services to online consumers.
1.2 Snap operates a search and aggregation "portal" site on the World Wide
Web.
2. Definitions.
"Above the Fold" means that a particular item on a Web page is viewable on a
computer screen at an 800 x 600 pixels resolution when the User first
accesses such Web page, without scrolling down to view more of the Web page.
"Anchor Tenant" means a content provider with a fixed promotional and
content position within a Snap Center that always appears Above the Fold,
and which position is greater in size and prominence than that of any third
party within such Snap Center.
"Co-Branded Site" means the co-branded version of the Company Site that is
created pursuant to Section 4.3 of this Agreement and is maintained and
hosted by the Company.
"Co-Branded User" means any User of the Co-Branded Site.
"Company Marks" means any trademarks, trade names, service marks and logos
that may be delivered by the Company to Snap expressly for inclusion in the
Promotions.
"Company Products" means all products and services offered through the
Company Site or the Co-Branded Site.
"Company Site" means the Internet site operated by the Company at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇, together with any mirror sites, co-branded sites
(not including the Co-Branded Site), and successors to the foregoing.
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"Competitor" of a party means any competitor of such party listed in
Exhibit B. Either party may amend Exhibit B once during each calendar
quarter, so long as such amendment is approved by the other party, which
approval shall not be unreasonably withheld. Snap, NBC, and CNET may not be
added as Competitors.
"Competitive Services" shall mean any content, services or tools that are
similar to those made available to Users via the Company Site and are also
directly related to buying and selling residential real estate, mortgages,
or community and neighborhood information.
"Impression" means the display on any Snap Site of a Web page containing at
least one Promotion.
"Jump Page" means any Snap Web page in the Real Estate section of the Snap
Classifieds, Real Estate Center, or Loan Center of the Snap Site containing
the company marks of Snap and the Company and content or a tool linking to
the Co-Branded Site, as further described in Section 4.2. The URL of a Jump
Page will begin with ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.
"Keyword Banners" means banners to be displayed on search results pages
corresponding with the keywords listed in Exhibit A. Such Keyword Banners
will be displayed as set forth on Exhibit A.
"Launch Date" means the date on which the Web pages and navigational tools
associated with the Jump Page and Co-Branded Site function Properly and
such page and site are made accessible to Users.
"Period" means a defined time frame in which measurements will occur. The
Term of this Agreement will cover [*] as follows: [*]
"Preferred Tenant" means a fixed promotional and content position within a
Snap Center that appears below the Anchor Tenant and which is greater in
size and prominence than that of any third party, except the Anchor Tenant
in such Snap Center.
"Promotional Pages" means the Real Estate Center, the Loan Center, the Co-
Branded Site, and the Jump Pages.
"Promotions" means Above the Fold banners, buttons, text links, windows,
Keyword Banners, and other promotions that are offered by Snap now or in
the future and which link directly to the Company Site.
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"'Real Estate Center" means a collection of related Web sites, Web pages,
links, portals and other resources on the Snap Sites that will feature
mortgage services, residential real estate listings and Realtor referral
services.
"Snap Center" means a collection of related Web sites, Web pages, links,
portals, and other resources on the Snap Site sharing similar or
complementary topics or themes.
"Snap Marks" means any trademarks, trade names, service marks and logos
delivered by Snap to the Company expressly for inclusion in the Co-Branded
Site.
"'Snap Producer" means an individual or group of individuals holding
editorial authority and responsibility for a portal, site, collection,
area, center or page on the Snap Site.
"Snap Products" means all Snap products and services offered through the
Snap Sites, excluding Company Products.
"'Snap Sites" means any and all search and content aggregation sites,
whether operated by ,Snap or a third party under the "Snap" brand,
including, without limitation, the site located at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇,
together with any mirror sites, any co-branded editions of such site that
have been or may be developed for Distributors (if included pursuant to
Section 15.1), and successors to the foregoing.
"Tenant Positions" mean the Anchor Tenant position and the Preferred Tenant
position.
"Term" means the term of this Agreement, beginning on October 19, 1998 and
ending on [*] unless otherwise terminated as provided in Section 6.
"User" means any end-user of the Snap Site or the Co-Branded Site with a
unique user ID.
3. Promotions.
3.1 From the Effective Date through [*] Snap will deliver for the Company
[*] Impressions per month. During the third and fourth Periods, Snap
will deliver for the Company [*] Impressions per month. Snap agrees
that at least [*] Impressions per month [*] Impressions per month [*].
The Keyword Banners will appear as set forth on Exhibit A. To the
extent technically feasible for Snap, the Company shall have the right
to direct the location and placement of the foregoing Impressions
within sub-areas of the aforementioned areas, provided that the
requested targeting of such sub-areas does not preclude Snap from
delivering Impressions in any of the other targeted areas, as Snap
deems necessary to meet the minimum Impressions
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herein. The remaining Impressions may be delivered anywhere on the Snap
Site as determined in Snap's discretion. The Company may request a
reallocation of the number, location, type and timing of the
Promotions, and Snap will use commercially reasonable efforts to
implement such request within 30 days, subject to available inventory.
[*] provided that each Promotion appearing on such page will be
counted as one Impression. All numbers set forth in this Section 3.1
may be adjusted pursuant to Section 7.2.4.
3.2 The Company will design any graphics and other materials required for
the Promotions and will supply digital copies of such materials to
Snap. Such materials will be designed and delivered in accordance with
Snap's reasonable technical and editorial guidelines, as in effect from
time to time. Snap will provide reasonable assistance to the Company in
connection with the design and delivery of such materials.
3.3 The Company will be responsible for ensuring that each URL provided to
Snap for use in a Promotion takes the User to the appropriate area
within the Company Site, and that such sites function with reasonable
reliability and in a commercially reasonable manner throughout the
Term. The Company agrees that the Company Site and the Co-Branded Site
will comply with the performance standards set forth in Section 16
throughout the Term.
3.4 Underdelivery.
3.4.1 If Snap does not deliver the required number of total
Impressions during any given month (without regard to the
percentages in Section 3. 1), Snap will have an additional [*]
to deliver the Impressions on the Snap Site. The Company
acknowledges that the percentages set forth in Section 3.1 shall
be delivered annually and may not be delivered in any given
month.
3.4.2 If Snap does not deliver the required number of Impressions
during the [*] period described in Section 3.4. 1, above, the
Company agrees that for an additional [*] Snap may deliver
the Impressions on any World Wide Web site operated by CNET,
Inc. or the National Broadcasting Company, Inc., subject to
Company's prior consent (which shall not be unreasonably
withheld) and provided that such substituted Impressions are
substantially equivalent in value.
3.4.3 If Snap does not deliver the required number of Impressions
during the [*] period described in Section 3.4.2, above, the
Company will have the right to receive a credit against future
payments or rollover of the
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Impressions into future delivery periods of the undelivered
amount. During the first year, such credit or rollover will be
granted in an amount equal to [*] per [*] Impressions that
remain undelivered, and [*] per [*] Impressions that remain
undelivered. During the second year, such credit or rollover
will be granted in an amount equal to [*] per [*] Impressions
that remain undelivered, and [*] per [*] Impressions that remain
undelivered.
3.5 [*]
4. Jump Pages and Co-Branded Site.
4.1 Launch Date. The parties will use diligent efforts to achieve a Launch
Date within 30 days after the effective date of this Agreement;
provided, however, that if the Launch Date occurs after such 30 days
due to the fault of the Company, then, for all purposes herein, the
Launch Date shall be deemed to be the date that is 30 days after the
effective date of this Agreement.
4.2 Jump Pages
4.2.1 Snap will develop and implement Jump Pages in accordance with
this Section, subject to the reasonable approval of the
Company. The Company will provide reasonable assistance to Snap
in connection therewith. Notwithstanding the description of the
Jump Pages set forth below or any other provisions of this
Agreement, Snap may, in the exercise of its reasonable
discretion, make changes to the number, design and
functionality of the Jump Pages or any area of the: Snap Site,
subject to Section 7.
4.2.2 Snap will host the Jump Pages on its servers (or on servers
within its control) and will provide all computer hardware,
software and personnel necessary to operate and maintain the
Jump Pages as functional pages accessible to users of the World
Wide Web. Each Jump Page may have a different theme, emphasis,
or design, and may provide any or all of the features and
functionality of the Snap Site, as determined by the
unrestricted discretion of a Snap Producer. Further, the Jump
Pages may include editorial content as determined by Snap.
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4.2.3 The Company will provide Snap with the Company's search and
selection interfaces for display on the Jump Pages so that
Users of the Jump Pages may search the Company's database of
residential real estate listings and mortgage information. Such
search and selection interfaces may also be included on other
pages on the Snap Site, in Snap's discretion. Examples of such
interfaces are shown in Illustration C-4.
4.2.4 Each Jump Page will include at least one Snap ▇▇▇▇ and one
Company ▇▇▇▇, as set forth on Illustration C-4.
4.3 Co-Branded Site
4.3.1 The Company will develop the Co-Branded Site In accordance with
this Section 4.3, and Snap will provide reasonable assistance
in connection therewith. The URL of the Co-Branded Site will be
http://_____________.▇▇▇▇.▇▇▇/[page name].
4.3.2 Each page on the Co-Branded Site will include branding for Snap
and the Company, and each Snap logo or graphic will include an
embedded link to the Snap Site. To the extent feasible, but
subject to the final discretion of the Company, pages of the
Co-Branded Site will also include appropriate navigation
features, such as drop-down menus, breadcrumb trails or
navigation bars, which will include links to the Snap Site.
4.3.3 The Company will host the Co-Branded Site on its servers (or on
servers within its control) and will provide all computer
hardware, software and personnel necessary to operate and
maintain the Co-Branded Site as a functional site accessible to
users of the World Wide Web.
4.3.4 Unless otherwise mutually agreed to by the parties, the Co-
Branded Site will provide all of the features and functionality
provided by, and will perform in a manner substantially
identical to, the Company Site, as the Company Site may be
updated and enhanced from time to time. Snap acknowledges that
the Company may change the design and functionality of the
Company Site from time to time, in which case the design and
functionality of the Co-Branded Site will be changed in a
similar fashion.
4.3.5 The Co-Branded Site will display advertising consistent with
the number, type, and placement of advertising displayed on the
Company Site. The Company will be primarily responsible for
selling advertising on the Co-Branded Site. [*] Either party
may exchange advertising space on the Co-Branded Site for
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products or services from a third-party (i.e., barter);
provided that (1) such advertising space may be bartered only
if [*] or (2) [*]. Unless otherwise agreed, [*]. Barter
advertisements that do not meet one of the foregoing criteria
will be treated as a sale of advertising [*] and the bartering
party will be responsible for making payment to the other as
set forth above. For the purposes of this paragraph, "Net
Revenue" shall mean the gross price charged for the
advertisement minus any advertising agency fees paid. The
Company will not display advertisements of Snap Competitors on
the Co-Branded Site. Snap will not sell advertising on the Co-
Branded Site to any Company Competitor, or serve on the Co-
Branded Site the advertisements of any Company Competitor.
Further, if any advertisement on the Co-Branded Site is
reasonably deemed inappropriate by either party, such
advertisement shall be removed from the Co-Branded Site
immediately upon notice from the party requesting removal.
5. Payments and Credits.
5.1 [*]
5.1.1 [*]
5.1.2 [*]
5.1.3 [*]
5.1.4 [*]
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5.1.5 [*]
5.2 [*]
5.2.1 [*]
5.2.2 [*]
5.2.3 [*]
5.2.4 [*]
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5.2.5 [*]
5.3 [*]
5.4 [*]
5.4.1 [*]
5.4.2 [*]
5.5 [*]
6. Termination.
6.1 Either party may terminate this Agreement at any time by giving
written notice of termination to the other party if the other party
commits a material breach of its obligations hereunder that is not
cured within 30 days after notice thereof from the non-breaching
party; provided, however, that if the Company fails to make a payment
as required hereunder, Snap may terminate this Agreement 15 days
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following the date such written notice of non-payment is received by
the Company.
6.2 If Snap fails to attain the following [*] (as measured pursuant to
Section 8.3) at the end of the respective Period, the Company may, at
its option, terminate or renegotiate this Agreement upon 30 days
written notice to Snap:
Period Users
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[*] [*]
[*] [*]
[*] [*]
6.3 If either party is the subject of any voluntary or involuntary
proceeding relating to its liquidation or insolvency that is not
dismissed within ninety (90) days of commencement, the parties may
mutually agree to terminate this Agreement. Such termination will be
treated as taken in the ordinary course of business and will not
require court or creditor approval. Notwithstanding the foregoing,
each party reserves all rights, statutory or otherwise, against the
other related to any voluntary or involuntary proceeding relating to
liquidation or insolvency.
6.4 Snap may terminate this Agreement with 30 days advance written notice
upon the assignment of Company's rights and obligations under this
Agreement to a Snap Competitor (as set forth in Exhibit B).
6.5 If upon the expiration of the Term the Company desires to renew this
Agreement, the Company shall notify Snap in writing at least 30 days
prior to termination. Upon such notice, the parties will meet
together in good faith to discuss such renewal.
6.6 Upon the termination or expiration of this Agreement, all licenses
granted hereunder shall immediately terminate; each party shall return
or destroy, all Confidential Information of the other party in its
possession, and the provisions Sections 6.6, 13, 14, and 15 and any
obligations incurred prior to termination will survive any termination
of this Agreement.
7. Exclusivity.
7.1 General Exclusivity. During the Term and subject to Section 7.2.2, the
Company shall be the exclusive provider of mortgage services,
residential real estate listings, and Realtor referral services for the
Snap Sites, and Snap shall not display Promotions, advertisements, or
direct links to any Company Competitors (excluding any links from User-
directed general searches), except that:
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(a) Snap may display standard banner advertisements or other standard
promotional equivalent of banners advertisements, which are
substantially equivalent in value and prominence to such banner
advertisements, of Company Competitors (collectively, the
"Competitor Ads"); provided that (i) such Competitor Ads are
displayed in a manner consistent with Snap's editorial practices
across the Snap Sites, (ii) each page may contain Competitor Ads
for no more than one Competitor at any time; and (iii) each page
may contain up to two Competitor Ads, for any one Competitor so
long as are both are of the same type and are consistent with
Snap's standard business practices.
(b) Snap may display unpaid links to and content of Competitive
Services, provided that: (i) such links and content are displayed
in a manner consistent with Snap's editorial practices across the
Snap Sites, (ii) Snap provides no direct links from the
Promotional Pages to any Company Competitor; and (iii) Snap
provides no direct links from the Promotional Pages to Competitive
Services unless, in the reasonable judgment of a Snap Producer,
such Competitive Services are of greater quality than the
corresponding Company service. Notwithstanding the foregoing and
subject to Sections 7.1 (c) and 7.3.2(c), under no circumstances
may Snap display direct, unpaid links from the Promotional Pages
to the following subset of Competitive Services: residential real
estate listings and mortgage rates, quotes, applications, and
Realtor referral services.
(c) The Anchor Tenant in the Loan Center may have Promotions and
provide content, information, resources and tools anywhere on the
Snap Site other than the Real Estate Center, the Jump Page, and
the Co-Branded Site (except Competitor Ads permitted pursuant to
Section 7.1 (a)).
(d) The Company acknowledges and agrees that Snap may enter into an
exclusive relationship with a provider of listings, content,
information, resources and tools related to rental real estate,
including but not limited to apartments, condominiums, homes, and
other residential property (the "Rental Provider"), and that such
Rental Provider may have rental listings and Promotions (except
Promotions for services of such rental provider related to
mortgage services, residential real estate listings or Realtor
referral services) anywhere on the Snap Site. Further, the Company
acknowledges that Snap is under no obligation to use any listings,
information, tools, or other resources provided by the Company
related to rental real estate.
7.2 Additional Exclusivity Obligations.
7.2.1 Real Estate Center. During the Term, Snap will feature the
Company as the Anchor Tenant and the Preferred Tenant within
the Real Estate Center,
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and shall promote and link to the Company Products within and
throughout the Real Estate Center substantially in accordance
with Illustration C-1, subject to the reasonable discretion of a
Snap Producer. Snap agrees that any Snap Producer's editorial
changes will not meaningfully decrease the relative size,
prominence, and positioning of Company's Anchor Tenancy or
Preferred Tenancy within the Real Estate Center. The Company's
Anchor Tenant position and Preferred Tenant position will be
subject to the following:
(a) Subject to the sole discretion of a Snap Producer, Snap may
allow the Company to provide mortgage information within the
area designated by Snap as the Anchor Tenant position;
(b) The Company may provide mortgage and financial information
within the area designated by Snap as the Preferred Tenant
position, provided that up to [*] of the total area of the
Preferred Tenant position may be used by Snap to promote the
Snap Loan Center, subject to the discretion of a Snap
Producer.
7.2.2 Loan Center. During the Term, Snap will feature the Company as
the Preferred Tenant within the Loan Center, and shall promote
and link to the Company Products within and throughout the Loan
Center substantially in accordance with Illustration C-2, subject
to the reasonable discretion of a Snap Producer. Snap agrees that
any Snap Producer's editorial changes will not meaningfully
decrease the relative size, prominence, and positioning of
Company's Preferred Tenancy within the Loan Center.
Notwithstanding Section 7.1, Snap may display promotions,
content; and advertisements for, and links to the Loan Center
Anchor Tenant, consistent with Snap's agreement with such Anchor
Tenant.
7.2.3 Links. Snap will use commercially reasonable efforts to
aggressively promote the Real Estate Center throughout the Snap
Site through Above the Fold links, advertisements, editorials,
and other methods as determined in Snap's reasonable discretion
(collectively the "Internal Promotions"). Initially, Snap will
place Internal Promotions regarding the Real Estate Center on all
of the areas set forth on Exhibit 1) hereto. At Snap's sole
option during the Term, Snap may remove Internal Promotions from
certain areas, provided that (1) Internal Promotions are always
provided in [*] (2) Internal Promotions are always provided in at
least [*] (as determined by Snap), (3) Internal Promotions are
always provided in at least [*] (as determined by Snap), and (4)
Internal Promotions are always provided in [*]. Snap will
endeavor to place the Internal Promotions within areas and
centers that contain content, information and services relating
to real estate and mortgages
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including but not limited to home buying, home ownership, home
improvement, property listings, relocation and relocation
services, moving and moving services, apartment rentals,
corporate housing, home sales, home repair and improvement,
home decorating, home gardening, construction and construction
services, architecture, community information and demographics,
new homes developments, 'real estate agents, loans, home
finance, mortgages and mortgage rates, personal finance, and
family.
7.2.4 In addition to the links in Section 7.2.3, Snap will link to
the Real Estate Center from the front door of the Snap Site on
at least [*] provided, however, that any time prior to the date
that is [*] after the Launch Date (the "Option Date"), the
Company may send written notice to Snap directing Snap to
decrease such number of days from [*]. If such notice is
received, Snap will decrease such days as directed and
contemporaneously adjust the numbers and percentages in Section
3.1 as follows, effective as of the Option Date: [*]. All other
amounts in this Agreement shall remain the same.
7.3 Classifieds.
7.3.1 Exclusivity. During the Term, the Company shall be the
exclusive provider of real estate listings in the Real Estate
Classifieds area of the Snap Sites. Snap shall promote and link
to the Company's listings and other promotional content in the
Classifieds area, substantially in accordance with Illustration
C-3, subject to the reasonable discretion of a Snap Producer.
Snap agrees that any Snap Producer's editorial changes will not
meaningfully decrease the relative size, prominence, and
positioning of Company's real estate listings within the
Classifieds area.
7.3.2 Notwithstanding the exclusivity provision in Section 7.3.1,
above, Snap may, from time to time, notify the Company in
writing that the number of Company listings for any particular
city is not reasonably sufficient. The Company shall have 30
days from receipt of such notice to supplement its listings,
during which time Snap will not discuss supplemental listings
with any other listings provider. If after such time Snap
determines (in its reasonable discretion) that the Company's
listings for such city remain insufficient, Snap may provide
listings for such city from other listings providers in the
"Local" area of Snap (whether by geographic category, User
customization within My Snap!, or automatic localization
features) as follows: (a) Snap will use commercially reasonable
efforts to obtain an
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adequate number of listings from local listing providers; (b)
if Snap cannot obtain an adequate number of listings as
provided in subsection (a), Snap will use commercially
reasonable efforts to obtain an adequate number of listings
from any national listing provider that is not a Company
Competitor; and (c) if Snap cannot obtain an adequate number of
listings as provided in subsections (a) and (b), Snap may use
commercially reasonable efforts to obtain an adequate number of
listings from any national listing provider, including a
Company Competitor. Any listings provided by other providers
will be less prominent than the Company's listings. The Company
will notify Snap when it has added a sufficient amount of Real
Estate listings for such city, and upon reasonable verification
by Snap, Snap shall remove any non-Company listings and replace
them with Company listings within fifteen (15) days. For the
purposes of this Section, a reasonably sufficient number of
listings for a particular locality is a number equal to or
greater than [*] of the number of listings provided by the top
listings service for the same locality, as such locality is
defined by the Company.
7.3.2 The Company will use diligent efforts to maintain and grow the
number of real estate listings available through its service
during the term of the Agreement.
7.4 If during the Term the existing Anchor Tenant in the Loan Center
ceases to hold such position, Snap will negotiate exclusively and in
good faith with the Company for a period of 30 days regarding the
Company's purchase of such Anchor Tenant position on terms to be
proposed by Snap. Such terms will include, but not be limited to, an
agreement that the amounts of all Promotions in Section 3.1 and the
amounts of all payments in Sections 5.1.1, 5.1.2, 5.1.3, 5.2.1,
5.2.2., and 5.2.3 will immediately increase by [*] effective for the
remainder of the Term. If Snap and the Company are unable to reach
agreement on such an arrangement within such 30 day period, Snap will
be free to negotiate with third parties with respect to such an
arrangement, provided that Snap may not enter into any agreement
regarding the Anchor Tenant positions with a third party on terms
materially more favorable that those offered to Company.
8. Reporting.
8.1 Within 30 days after the end of each month during the Term, Snap will
provide to the Company a report that includes the following
information for such month: (a) standard reports with respect to the
banner advertisements included within the Promotions, and (b) the
number of User sessions and Users who accessed the Real Estate Center,
the Loan Center, the Snap Classifieds area, and each Jump Page.
8.2 Within 30 days after the end of each month during the Term, the
Company will provide to Snap a report that includes the following
information for such month:
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(a) the aggregate number of clickthroughs from the Snap Site to the
Company Site and the Co-Branded Site; (b) the number of Co-Branded
User sessions and Users; and (c) the total page views, on a daily
basis, on the Co-Branded Site. The Company will obtain the foregoing
data by tagging each Co-Branded User using a cookie or other similar
technology, as agreed upon by the parties. In addition, the Company
will make available on a quarterly basis a report that describes, on a
weekly basis, the percentage of unsold advertising inventory and the
amount of such inventory that was bartered by the Company pursuant to
Section 7.3.5.
8.3 The total number of users measured for purposes of Sections 5.4 and
6.2 will initially be determined by Media Metrix. If either party
desires to use an alternative Web profiling company, Snap and the
Company shall meet in good faith to mutually agree upon a new company
to measure such Users. Within 30 days of the end of each Period, Snap
shall provide the Company (at no cost) a report from Media Metrix
stating the aggregate number of Users (using At Home numbers) at the
end of such Period ("Media Metrix Report"). Snap may, at its sole
discretion, substitute its audited internal audience measurements for
those of any third party provider at any time, on the following
conditions: (1) once provided by Snap, such audience measurements.
will be provided by Snap (and not a third party) for the remainder of
the Term; (2) the Snap numbers will be weighted against the third
party provider numbers at the time of substitution, and such weighting
will be applied during the remainder of the Term (e.g., if the third
party provider reports 4 million Users and Snap reports 5 million
users, the Snap numbers will be weighted to equal 4 million Users and
such weighting will apply to all subsequent reports); (3) in no event
may Snap's actual numbers be less than those set forth in Sections 5.4
and 6.2; and (4) the Company may audit such audience measurements one
time in each calendar year upon 30 days written notice to Snap.
9. User Data. The Company will be the sole owner of any information that the
Company collects from Users through the Co-Branded Site, and Snap will be
the sole owner of any information that Snap collects from Users through the
Snap Site (including the Real Estate Center and Loan Center). Each party
will have the right to use any information provided by the other party
pursuant to Section 8 subject to the confidentiality restrictions set forth
in Section 15.8. Unless otherwise clearly disclosed to Users on the
respective site, all data collected from Users through the Company Site and
Co-Branded Site will be kept confidential and not disclosed to third
parties in accordance with the published privacy policy of Snap.
10. Reciprocal Marketing. The Company will display a button or other graphical
link to be provided by Snap, which links to the Snap Site, on all pages
except those beyond the password-protected pages in the Co-Branded Site and
on designated pages of the Company Site. All such links on the Co-Branded
Site and Company Site will be displayed Above the Fold. Snap agrees not to
specifically target (separately from the general database of Snap Users)
any Users who access the Snap Site through such links.
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11. Localized Content. The Company will assist Snap in developing a system
through which Snap can deliver to the Company the geographic location of a
particular User and the Company can return to such User current Real Estate
listings and other agreed-upon information specific to such location. For
such purposes, a User's location may be identified by city and state, zip
code, IP or unique user address or other reasonable means. Once developed,
such localized content will be placed on the Co-Branded Site as mutually
agreed by the parties and on the Snap Site as determined by Snap.
12. Licenses.
12.1 The Company hereby grants to Snap a non-exclusive, non-transferable,
royalty-free license, effective throughout the Term, to use, display
and publish the Company Marks and those programs, software, materials
or content developed by the Company and made available to Snap (
"Company Tools"), solely within the Promotions and the Tenant
Positions on the Snap Sites.
12.2 Any use of the Company Marks or the Company Tools by Snap must comply
with any reasonable usage guidelines communicated by the Company to
Snap from time to time. Nothing contained in this Agreement will give
Snap any right, title or interest in or to the Company Tools, the
Company Marks or the goodwill associated therewith, except for the
limited usage rights expressly provided above. Snap acknowledges and
agrees that, as between the Company and Snap, the Company is the sole
owner of all rights in and to the Company Marks and the Company
Tools.
12.3 Snap hereby grants to the Company a non-exclusive, non-transferable,
royalty free license, effective throughout the Term, to use, display
and publish the Snap Marks solely within the Co-Branded Site. Any use
of the Snap Marks by the Company must comply with any reasonable
usage guidelines communicated to the Company by Snap from time to
time. Nothing contained in this Agreement will give the Company any
right, title or interest in or to the Snap Marks or the goodwill
associated therewith, except for the limited usage rights expressly
provided above. The Company acknowledges and agrees that, as between
the Company and Snap, Snap is the sole owner of all rights in and to
the Snap Marks.
13. Responsibility for the Products.
13.1 The Company acknowledges and agrees that, as between the Company and
Snap, the Company will be solely responsible for any claims or other
losses associated with or resulting from the marketing or operation
of the Company Site or the Co-Branded Site or the offer or sale of
any Company Products by the Company or through the Company Site or
the Co-Branded Site. Snap is not authorized to make, and agrees not
to make, any representations or warranties concerning the
16
Company Products, except to the extent (if any) contained within
Promotions delivered to Snap by the Company.
13.2 Snap acknowledges and agrees that, as between the Company and Snap,
Snap will be solely responsible for any claims resulting from the
marketing or operation of the Snap Sites or the offer or sale of any
Snap Products by Snap or through the Snap Site. The Company is not
authorized to make, and agrees not to make, any representations or
warranties concerning the Snap Products, except to the extent (if
any) contained within links or content delivered to the Company by
Snap for inclusion on the Co-Branded Site.
14. Mutual Indemnification.
14.1 Indemnification by Snap. Snap shall indemnify and hold the Company
harmless from and against any costs, losses, liabilities and
expenses, including all court costs, reasonable expenses and
reasonable attorney's fees (collectively, "Losses") that the Company
may suffer, incur or be subjected to by reason of any legal action,
proceeding, arbitration or other claim by a third party, whether
commenced or threatened, arising out of or as a result of (a) the use
of the Snap Marks by the Company in accordance with this Agreement;
(b) any content provided by Snap to the Company for display on the
Co-Branded Site; (c) the operation of the Snap Site (except in cases
where the Company is required to indemnify Snap under the following
paragraph); or (d) the offer or sale of Snap Products by Snap or
through the Snap Site.
14.2 Indemnification by the Company. The Company shall indemnify and hold
Snap harmless from and against any Losses that Snap may suffer, incur
or be subjected to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether commenced or
threatened, arising out of or as a result of (a) the use of the
Company Marks or the Company Tools by Snap in accordance with this
Agreement; (b) any content provided by the Company to Snap for
display on the Snap Site; (c) the operation of the Company Site or
the Co-Branded Site; or (d) the offer or sale of the Company Products
by the Company or through the Company Site or Co-Branded Site.
14.3 Indemnification Procedures. If any party entitled to indemnification
under this Section (an "Indemnified Party") makes an indemnification
request to the other, the Indemnified Party shall permit the other
party (the "Indemnifying Party") to control the defense, disposition
or settlement of the matter at its own expense; provided that the
Indemnifying Party shall not, without the consent of the Indemnified
Party enter into any settlement or agree to any disposition that
imposes an obligation on the Indemnified Party that is not wholly
discharged or dischargeable by the Indemnifying Party, or imposes any
conditions or obligations on the Indemnified Party other than the
payment of monies that are readily measurable for purposes of
determining the monetary indemnification or
17
reimbursement obligations of Indemnifying Party. The Indemnified
Party shall notify Indemnifying Party promptly of any claim for which
Indemnifying Party is responsible and shall cooperate with
Indemnifying Party in every commercially reasonable way to facilitate
defense of any such claim; provided that the Indemnified Party's
failure to notify Indemnifying Party shall not diminish Indemnifying
Party's obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of such
failure. An Indemnified Party shall at all times have the option to
participate in any matter or litigation through counsel of its own
selection and at its own expense.
15. Miscellaneous.
15.1 Notwithstanding Sections 4 and 7, above, the Company acknowledges
that Snap produces co-branded editions of the Snap Site for various
resellers, distributors and other licensees (collectively the
"Distributors"). In some cases, such Distributors are entitled to
replace Snap's default content with other content within their own
co-branded editions of the Snap Site. Notwithstanding the other
provisions of this Agreement, if any such Distributor has exercised
its right to replace the Company's content with other content, then
Snap will not be required to display the Promotions or the Company's
content within such Distributor's co-branded edition of the Snap
Site. In such event, any users of such Distributor's co-branded
edition of the Snap Site shall not be included in the calculation of
Users. If Snap does display the Promotions or the Company's content
within a co-branded edition of the Snap Site, such display will be
governed by this Agreement and users of such site shall be included
in the calculation of Users.
15.2 LIMITATION OF DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, EXCEPT FOR ANY
CLAIM FOR INDEMNIFICATION ARISING UNDER SECTION 14 ABOVE, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF $1,000,000.00.
15.3 Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent; provided, however,
that either party may assign this Agreement without such consent in
connection with any merger, consolidation, any sale of all or
substantially all of that party's assets or any other transaction in
which more than 50% of that party's voting securities are transferred
to any person or entity other than a Competitor of the other party,
subject to the terms of this Agreement. Any other attempt to assign
this Agreement other than in accordance with this provision shall be
null and void.
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15.4 Relationship of Parties. This Agreement will not be construed to
create a joint venture, partnership or the relationship of principal
and agent between the parties hereto, nor to impose upon either party
any obligations for any losses, debts or other obligations incurred
by the other party except as expressly set forth herein.
15.5 Entire Agreement. This Agreement constitutes and contains the entire
agreement between the parties with respect to the subject matter
hereof and supersedes any prior oral or written agreements. This
Agreement may not be amended except in writing signed by both
parties. Each party acknowledges and agrees that the other has not
made any representations, warranties or agreements of any kind,
except as expressly set forth herein.
15.6 Audit Rights. During the Term and for one year thereafter, each party
will have the right, no more than once per calendar year, to engage
an independent third party to audit the books and records of the
other party relevant to the quantification of the Promotions, upon
reasonable notice and during normal business hours, and the other
party will provide reasonable cooperation in connection with any such
audit. The party requesting the audit will pay all expenses of the
auditor unless the audit reveals an underpayment by the other party
of more than 5%, in which case the other party will reimburse all
reasonable expenses of the auditor.
15.7 Applicable Law. This Agreement will be construed in accordance with
and governed by the laws of the State of California, without regard
to principles of conflicts of law.
15.8 Confidentiality. In connection with the activities contemplated by
this Agreement, each party may have access to confidential or
proprietary technical or business information of the other party,
including without limitation (a) proposals, ideas or research related
to possible new products or services; (b) financial statements and
other financial information; (c) any reporting information in Section
8 herein; and (d) the material terms of this Agreement and the
relationship between the parties; provided, however, that such
information will be considered confidential only if it is
conspicuously designated as "Confidential," or if provided orally,
identified at the time of disclosure as confidential (collectively,
"Confidential Information"). Each party will take reasonable
precautions to protect the confidentiality of the other party's
Confidential Information, which precautions will be at least
equivalent to those taken by such party to protect its own
Confidential Information. Except as required by law or as necessary
to perform under this Agreement, neither party will knowingly
disclose the Confidential Information of the other party or use such
Confidential Information for its own benefit or for the benefit of
any third party. Each party's obligations in this Section with
respect to any portion of the other party's Confidential Information
shall terminate when the party seeking to avoid its obligation under
such Paragraph can document that: (i) it was in the public domain at
or subsequent
19
to the time it was communicated to the receiving party ("Recipient")
by the disclosing party ("Discloser") through no fault of Recipient;
(ii) it was rightfully in Recipient's possession free of any
obligation of confidence at or subsequent to the time it was
communicated to Recipient by Discloser; (iii) it was developed by
employees or agents of Recipient independently of and without
reference to any information communicated to Recipient by Discloser;
(iv) it was communicated by the Discloser to an unaffiliated third
party free of any obligation of confidence; or (v) the communication
was in response to a valid order by a court or other governmental
body, was otherwise required by law or was necessary to establish
the rights of either party under this Agreement.
15.9 Press Release. Notwithstanding Section 15.8, Snap and the Company
agree to collaborate and mutually agree on the contents of a joint
press release concerning this Agreement. Each party may from time to
time issue a press release concerning this Agreement or the parties'
business relationship upon prior written approval by the other
party. Each party will provide an appropriate quote from one of its
senior executive officers for use in any approved press release.
Each party will provide the other with a reasonable opportunity to
review and comment on its press release.
15.10 Illustrations. All Illustrations attached to the Exhibits are for
illustrative purposes only and shall not be deemed to bind, obligate
or restrict either party from making changes in such party's
discretion; provided, however, that Snap may not make changes to any
Snap Site page or Jump Page which meaningfully decreases the size,
value and prominence of any content or promotions with respect to
the corresponding Illustrations without the Company's consent.
15.11 Attorney Fees. In any action or suit to enforce any right or remedy
under this Agreement or to interpret any provision of this
Agreement, the prevailing party shall be entitled to recover its
costs, including reasonable attorneys' fees.
15.12 Dispute Resolution. In the event that any dispute arises hereunder,
the parties agree that prior to commencing litigation, arbitration,
or any other legal proceeding, each party shall send an officer of
such party to negotiate a resolution of the dispute in good faith at
a time and place as may be mutually agreed. Each officer shall have
the power to bind its respective party in all material respects
related to the dispute. If the parties cannot agree on a time or
place, upon written notice from either party to the other, the
negotiations shall be held at the principal executive offices of
Snap twenty one days following such notice (or on the next
succeeding business day, if the twenty first day is a weekend or
holiday).
16. General Performance Standards. The Company Site, the Co-Branded Site and
the Company's related operations must comply with the following performance
standards throughout the Term:
20
16.1 The Company Site and Co-Branded Site will be operational and fully
functional in all material respects (i.e. capable of displaying
information and conducting transactions as contemplated in the
ordinary course of business) at least 97% of the time during any 30
day period.
16.2 The average time required to start displaying the HTML on a page of
the Company Site or Co-Branded Site after a link from the Snap Site
shall not exceed a daily average of three seconds, and the average
time required to deliver an entire page of the Company Site or Co-
Branded Site over the open Internet shall not exceed a daily average
of six seconds. For measurements required in this paragraph, the
Company may assume standard T1 connectivity to the Internet.
16.3 Without limiting the effect of Paragraph 16.1 and 16.2 above, the
Company shall provide to Users coming to the Company Site or the Co-
Branded Site from the Promotions at least the same level of service
as is offered to Users coming directly to the Company Site.
16.4 The Company Site and Co-Branded Site will offer Real Estate listings
and mortgage-related services as well as links to various Real Estate
resources and shall not, to the best of the Company's knowledge: (a)
contain defamatory or libelous material or material which discloses
private or personal matters concerning any person, without such
person's consent; (b) permit to appear or be uploaded any messages,
data, images or programs which are illegal, contain nudity or
sexually explicit content which are, by law, obscene, profane or
pornographic; or (c) permit to appear or be uploaded any messages,
data, images or programs that would knowingly or intentionally (which
includes imputed intent) violate the property rights of others,
including unauthorized copyrighted text, images or programs, trade
secrets or other confidential proprietary information, or trademarks
or service marks used in an infringing fashion.
16.5 If any of the performance standards set forth above are not met by
the Company, Snap may immediately remove any or all links to the
Company Site or Co-Branded Site, as applicable, at Snap's sole
discretion. If the Company Site fails to operate fully and
functionally in any material respect for any period of four or more
consecutive hours, even if otherwise in compliance with the
performance standards, Snap may immediately remove any or all links
to the Company Site or Co-Branded Site, as applicable, at Snap's sole
discretion until such time as the Company notifies Snap that such
Company Site or Co-Branded Site has resumed acceptable operation.
These remedies are for Snap's editorial purposes and in no way limit
Snap's ability to terminate this contract or pursue any other
remedies hereunder in the event the performance standards set forth
herein are not met.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
SNAP, LLC HOMESHARK, INC.
By: ________________________ By: ___________________________
Name: ________________________ Name: ___________________________
Title: ________________________ Title: ___________________________
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Exhibit A
Keywords
1. The Company will receive Keyword Banners [*] the following are
searched on Snap:
[*]
[*] Confidential Treatment Requested
23
[*]
[*] Confidential Treatment Requested
24
Exhibit B
Competitors
1. [*]
[*] Confidential Treatment Requested
25
[*]
[*] Confidential Treatment Requested
26
Exhibit C
Illustrations
1. Illustration C-1: Snap Real Estate Center
2. Illustration C-2: Snap Loan Center
3. Illustration C-3: Snap Classifieds
4. Illustration C-4: Jump Page
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Exhibit D
Target Areas for Internal Promotions
[*]
[*] Confidential Treatment Requested
28