Exhibit 10.45
May 27, 1999
DISTRIBUTION AGREEMENT
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THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of
May __, 1999 (the "Effective Date"), between ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation with an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇.▇▇▇"), and State-Wide Multiple Listings Service Inc. ("Company"), a
Rhode Island corporation with an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Company").
▇▇▇▇▇▇.▇▇▇ uses the ▇▇▇▇▇▇.▇▇▇ Technology and provides the Production
Services. Company operates the State-Wide MLS Database and the Company Site.
▇▇▇▇▇▇.▇▇▇ desires to provide virtual tour technology and Production Services
for the State-Wide Members. In consideration of the mutual promises and
covenants contained herein, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS
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1.1 "Company Site" means the collection of HTML documents residing on
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servers operated by or for Company or its affiliate and accessible on or after
the Effective Date by State-Wide Members or the public via the Internet,
including those currently accessible at the URL ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.
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1.2 "Confidential Information" means any trade secrets, confidential
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data or other confidential information oral or written relating to or used in
the business of the other party (the "Disclosing Party"), that a party may
obtain from the Disclosing Party during the term of this Agreement (the
"Confidential Information"). The terms of this Agreement will constitute
Confidential Information, except to the extent that such information is
disclosed in good faith to a legitimate potential, or actual, strategic
investor, investment banker, venture capital firm, or consultant, or as
required by statute, regulation or other law.
1.3 "▇▇▇▇▇▇.▇▇▇ Image" means an electronic image of a Property
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produced by or on behalf of ▇▇▇▇▇▇.▇▇▇.
1.4 "▇▇▇▇▇▇.▇▇▇ Technology" means software and hardware, including the
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Software, used to capture, process and view ▇▇▇▇▇▇.▇▇▇ Images.
1.5 "State-Wide Member" means a real estate agent, Realtor(R) or Broker
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that is a participant of the Company and has access to the State-Wide MLS
Database.
1.6 "State-Wide MLS Database" means the collection of data residing on
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servers operated by or for Company or its affiliate and accessible by State-
Wide Members and, to the extent Company makes such collection generally
available, by the public via the Internet.
1.7 "MLS Software System" means the password protected user interface,
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consisting of HTML pages and including any future versions of such interface,
that State-Wide Members access via the Internet to obtain listings and other
information in the State-Wide MLS Database.
1.8 "Production Services" means the services provided by or on behalf of
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▇▇▇▇▇▇.▇▇▇ in producing the ▇▇▇▇▇▇.▇▇▇ Images.
1.9 "Property" means any piece of raw land, residential, or commercial
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real estate within the ▇▇▇▇▇▇.▇▇▇ Service Provider Network territory and
entered into the State-Wide MLS Database and/or onto the Company Site,
including without limitation new homes, offered for sale or resale.
1.10 "Service Provider Network" means the network of individuals
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throughout Rhode Island with whom ▇▇▇▇▇▇.▇▇▇ has entered into agreements to
capture images at designated sites on ▇▇▇▇▇▇.▇▇▇'s behalf.
1.11 "Virtual Tour Images" means 360, three-dimensional, virtual reality,
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virtual tour, virtual walkthrough or other similar images, or technology or
production services for such images.
2. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
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2.1 Sales and Billing. ▇▇▇▇▇▇.▇▇▇ will be responsible for receiving and
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fulfilling orders and invoicing and collecting revenues for all sales of Virtual
Tour Images.
2.2 Image Capturing, Processing and Linking. ▇▇▇▇▇▇.▇▇▇ will have sole
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responsibility for, and will bear all costs associated with, capturing images at
designated sites through its Service Provider Network and processing captured
images to create ▇▇▇▇▇▇.▇▇▇ Images. Company will permit linking of ▇▇▇▇▇▇.▇▇▇
Images to the Company Site and/or State-Wide MLS Database, and the parties will
use best efforts to work together to expeditiously implement, and maintain
throughout the term of this Agreement, a system whereby Company will be capable
of linking ▇▇▇▇▇▇.▇▇▇ Images to the appropriate State-Wide MLS properties,
enabling viewing of such ▇▇▇▇▇▇.▇▇▇ Images through the Company Site and the
State-Wide MLS Database. Each link to the Company Site and the State-Wide MLS
Database will remain active as long as the Property remains on the market, up to
a maximum of six (6) months unless the ordering State-Wide Member requests an
extension. ▇▇▇▇▇▇.▇▇▇ will provide a link to all ▇▇▇▇▇▇.▇▇▇ Images for the
appropriate properties on the Company Site and the State-Wide MLS, except in
those cases where: (a) the State-Wide Member objects to the link; and/or (b)
the Web site or other third-party channel originating the sale of such
▇▇▇▇▇▇.▇▇▇ Images (collectively, the "Third-Party Originator") objects to the
link. In the event a Third-Party Originator objects to the link, ▇▇▇▇▇▇.▇▇▇
will provide twenty (20) days prior written notice of the objection to Company
before discontinuing the link to the Company Site and/or the State-Wide MLS
Database. The parties understand and agree that no obligations with respect to
the State-Wide MLS Database will take effect until Company implements technology
enabling viewing of Virtual Tour Images on the State-Wide MLS Database.
2.3 Exclusivity. ▇▇▇▇▇▇.▇▇▇ will be the exclusive provider of Virtual
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Tour Images for the Company Site and the MLS Software System/State-Wide MLS
Database. Company will not directly or indirectly promote itself, or act, as
a provider of Virtual Tour Images, nor will it promote or use the services of
any third party acting in such capacity. In addition, Company will not permit
any Virtual Tour Images or related technology or services of any third party
to be posted to, linked to or otherwise made accessible through the MLS
Software System, Company Site, or State-Wide MLS Database.
3. MARKETING AND PROMOTION
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3.1 Company Obligations. Company agrees to market, promote and
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facilitate orders of the Production Services as follows:
(a) MLS Software System and Company Site. Company agrees to
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prominently market and promote the Production Services in the MLS Software
System and Company Site. Such marketing and promotion will include, without
limitation:
(i) A method to order Production Services from within the MLS
Software System at the time that a State-Wide Member enters listing
information as well as on the first page that is accessed on the State-Wide
MLS Database by a State-Wide Membe r.
(ii) A button (which incorporates the ▇▇▇▇▇▇.▇▇▇ logo) which
links to a Web page containing a description of the Production Services on the
homepage of the Company Site currently accessible via the URL
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/.
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(iii) Generation of a gallery of virtual tours on the homepage
of the Company Site which will display ▇▇▇▇▇▇.▇▇▇ Images for listings from the
State-Wide MLS Database and/or Company Site.
(b) Print Advertising. To the extent Company creates and
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distributes print advertising promoting the Company Site, the State-Wide MLS
Database and MLS Software System, including without limitation print
advertising in magazines, flyers, newsletters, billing statements and general
mailings, Company will include, from time to time, in such advertising a
▇▇▇▇▇▇.▇▇▇ logo and a brief, suitable reference to the availability of the
Production Services.
(c) Email and Direct Marketing. Company agrees to include in email
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and direct marketing that it generates from time to time a section, reasonably
satisfactory to ▇▇▇▇▇▇.▇▇▇, highlighting the availability and features of the
Production Services. In addition, the parties will work together to create
flyers containing marketing information regarding the Production Services, to
be distributed through an insertion in the company's monthly invoices (12)
times during each twelve (12) month period in the term of this Agreement.
(d) Seminars and Trade Shows. Company will invite ▇▇▇▇▇▇.▇▇▇ to
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speak and promote its Production Services at appropriate seminars and training
sessions Company conducts for State-Wide Members during the term of this
Agreement. Company or its sales representatives will distribute to State-Wide
Members at seminars and training sessions subscription forms and marketing
materials created by ▇▇▇▇▇▇.▇▇▇ that promote the Production Services.
(e) Joint Press Release. Company will participate with ▇▇▇▇▇▇.▇▇▇
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in issuing a joint press release regarding the relationship established
through this Agreement. Each party will furnish its written acceptance of, or
comments on, the proposed joint announcement within 48 hours otherwise it will
be deemed approved. Any other press announcement by either party regarding the
subject matter of this Agreement will be subject to the other party's
approval, which shall not be withheld or delayed unreasonably.
(f) Advertisements of Competitors. Without the prior approval of
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▇▇▇▇▇▇.▇▇▇, Company will not display any advertisements of any competitor of
▇▇▇▇▇▇.▇▇▇ anywhere within the MLS Software System, the State-Wide MLS
Database or the Company Site during the term of this Agreement. For the
purposes of this Section 3.1(f), "competitor of ▇▇▇▇▇▇.▇▇▇" means any provider
of Virtual Tour Images, including, but not limited to, IPIX, Live Picture,
▇▇▇▇▇▇, URThere, NetXL and Cyclovision.
3.2 Additional Obligations. ▇▇▇▇▇▇.▇▇▇ and Company will, from time to
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time, use reasonable efforts to cooperate in joint marketing efforts. Each
party will assign a project manager to act as the primary liaison with respect
to the relationship.
4. PROPRIETARY RIGHTS
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4.1 ▇▇▇▇▇▇.▇▇▇ Technology.
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(a) All ▇▇▇▇▇▇.▇▇▇ Technology, including without limitation the
Software and all ▇▇▇▇▇▇.▇▇▇ Images, whether or not produced for Company
customers and whether or not posted to or linked to the State-Wide MLS
Database and/or Company Site, are, and at all times will remain, the exclusive
property of ▇▇▇▇▇▇.▇▇▇, and no provision of this Agreement implies any
transfer to Company of any ownership interest in any such ▇▇▇▇▇▇.▇▇▇
Technology.
(b) ▇▇▇▇▇▇.▇▇▇ hereby grants to Company a nonexclusive, worldwide,
royalty-free, nontransferable license to include links to ▇▇▇▇▇▇.▇▇▇ Images on
the State-Wide MLS Database or Company Site solely for the purposes
contemplated in this Agreement. Company will not distribute, modify, edit, or
prepare derivative works from the ▇▇▇▇▇▇.▇▇▇ Images without the prior written
permission of ▇▇▇▇▇▇.▇▇▇. The foregoing license does not include any right to
grant or authorize sublicenses.
4.2 Trademarks.
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(a) ▇▇▇▇▇▇.▇▇▇ owns and at all times will continue to own the
trademarks, service marks and/or trade names ▇▇▇▇▇▇.▇▇▇ and the ▇▇▇▇▇▇.▇▇▇
logo, as well as any name or ▇▇▇▇ ▇▇▇▇▇▇.▇▇▇ may subsequently adopt as a trade
name or to designate the Production Services (collectively, the "▇▇▇▇▇▇.▇▇▇
Marks"), and Company will not take any actions inconsistent with ▇▇▇▇▇▇.▇▇▇'s
ownership rights. Company owns and at all times will continue to own the
trademarks, service marks and/or trade names customarily used by Company
during the term of this Agreement (the "Company Marks"), and ▇▇▇▇▇▇.▇▇▇ will
not take any actions inconsistent with Company' ownership rights. Each party's
use of the other party's marks will not create in the using party any right,
title or interest therein or thereto, and all such use will inure to the
exclusive benefit of other party.
(b) Subject to the restrictions set forth herein, ▇▇▇▇▇▇.▇▇▇ hereby
grants Company a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the ▇▇▇▇▇▇.▇▇▇ Marks, during the term of this
Agreement, with ▇▇▇▇▇▇.▇▇▇'s prior written approval, which ▇▇▇▇▇▇.▇▇▇ will not
unreasonably withhold or delay, solely in connection with the financing of
Company and/or promotion and marketing of the Production Services as provided
in
Section 3. Subject to the restrictions set forth herein, Company hereby grants
▇▇▇▇▇▇.▇▇▇ a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Company Marks, during the term of this
Agreement, solely in connection with promotion and marketing of the Production
Services and/or financing of ▇▇▇▇▇▇.▇▇▇. At the reasonable request of either
party, the other party will provide assistance with the protection and
maintenance of the marks of the requesting party. Each party may only use the
marks of the other party as expressly permitted herein and agrees to use the
marks of the other party in a manner commensurate with the style, appearance
and quality of the other party's services and/or products bearing such marks.
4.3 Limitation on Grant of Rights. Except as expressly provided herein,
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neither party receives any other right or license to the technology or
intellectual property of the other party.
5. TERM AND TERMINATION
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5.1 Term. Unless earlier terminated as set forth below, this Agreement
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will become effective upon the Effective Date and continue for a period of one
(1) year. Thereafter, this Agreement will be automatically renewed for
successive one (1) year periods unless either party notifies the other in
writing not less than ninety (90) days prior to the end of the then-current term
of its intention to terminate this Agreement as of the end of such term.
5.2 Termination for Breach. This Agreement will terminate in the event
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a party materially breaches any material term, condition or representation of
this Agreement or materially fails to perform any of its material obligations or
undertakings hereunder, and fails to remedy such default within sixty (60) days
after being notified by the non-breaching party of such breach or failure;
provided, however, that the non-breaching party will not unreasonably withhold
or delay its consent to extend the cure period if the breaching party has
commenced cure during the sixty-day notice period and pursues cure of the breach
in good faith.
5.3 Survival of Certain Terms. The provisions of Sections 4.1(a),
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4.2(a), 4.3, 5.3, 6, 7, 8 and 9 will survive the expiration or termination of
this Agreement for any reason. All other rights and obligations of the parties
will cease upon expiration or termination of this Agreement. Upon termination,
(i) Company and ▇▇▇▇▇▇.▇▇▇ will cease all use of marks of the other party and
(ii) Company will cease all use of the ▇▇▇▇▇▇.▇▇▇ Images.
6. CONFIDENTIALITY
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Each party agrees to treat the other party's Confidential Information with
the same degree of care as it maintains its own information of a similar
nature. Each party will use at least the same procedures and degree of care
which it uses to protect the confidentiality of its own confidential
information of like importance, and in no event less than reasonable care.
7. REPRESENTATIONS AND WARRANTIES
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Each party represents and warrants to the other that (i) it is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (ii) it has full right, power and
authority to enter into this Agreement and to perform all of its obligation
hereunder; (iii) this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with its terms; and (iv) its execution,
delivery and performance of this Agreement will not result in a breach of any
material agreement or understanding to which it is a party or by which it or
any of its material properties may be bound. THE WARRANTIES PROVIDED BY THE
PARTIES HEREIN ARE THE ONLY WARRANTIES PROVIDED HEREIN AND ARE IN LIEU OF ALL
OTHER WARRANTIES BY THE PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE SUBJECT MATTER OF THIS AGREEMENT.
8. LIMITATION OF LIABILITY
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EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 2.3 OR 6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND
WITH RESPECT TO THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9. GENERAL PROVISIONS
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9.1 Notices. Any notice required or permitted by this Agreement will be
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deemed given if sent by registered mail, postage prepaid, addressed to the other
party at the address set forth at the top of this Agreement. Delivery will be
deemed effective three (3) days after deposit with postal authorities.
9.2 Miscellaneous. Nonperformance of either party will be excused to
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the extent that performance is rendered impossible by storm, lockout or other
labor trouble, riot, war, rebellion, strike, fire, flood, accident or other act
of God, governmental acts, orders or restrictions, or any other reason where
failure to perform is beyond the control and not caused by the negligence or
willful misconduct of the non-performing party. The relationship of ▇▇▇▇▇▇.▇▇▇
and Company established by this Agreement is that of independent contractors.
Section 4 of this Agreement will be governed by and construed under the laws of
the State of California with venue in the State of Rhode Island without
reference to conflict of laws principles; the remainder of this Agreement will
be governed by and construed under the laws of the State of Rhode Island without
reference to conflict of laws principles. This Agreement, together with all
exhibit and attachments hereto, sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged, and the waiver of any
breach or default will not constitute a waiver of any other right hereunder or
any subsequent breach or default. Neither party may assign this Agreement, or
assign or delegate any right or obligation hereunder, without the prior written
consent of the other party; provided, however, that either party may assign this
Agreement or assign or delegate its rights and obligations under this Agreement
to a successor to all or substantially all of its business or assets relating to
this Agreement whether by sale, merger, operation of law or otherwise. This
Agreement may be executed by exchange of signature pages by facsimile and/or in
any number of counterparts, each of which shall be an original as against any
party whose signature appears thereon and all of which together shall constitute
one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇▇▇.▇▇▇, INC. STATE-WIDE MULTIPLE LISTING SERVICE INC.
By:______________________________ By:______________________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________