EXHIBIT 10.13
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INTERNET ENDORSEMENT AGREEMENT
This Internet Endorsement Agreement (hereinafter "Agreement") is entered
into as of December 1, 1999, by and between Century Finance USA, Inc., a
California corporation, d.b.a. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with its principal place
of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("REE"), and the National Association of Hispanic Real Estate Professionals, a
California non-profit corporation, with its principal place of business at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("NAHREP").
WHEREAS, REE has developed an Internet website, currently located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Site"), which offers users the ability to
(1) search for property listings and real estate agents and (2) apply for
mortgage loans from companies who offer their products and services through REE
for various consumer products, including, but not limited to, the sale of real
property, first mortgage loans and lines, and such other products and services
as such companies may offer periodically through REE (collectively, the
"Products");
WHEREAS, NAHREP desires to grant to REE NAHREP's endorsement of
RealEstateEspanol and the Site on an exclusive basis, subject to the terms of
this Agreement.
NOW, THEREFORE, for and in consideration of their mutual promises,
benefits, and agreements herein contained and other valuable consideration, the
parties hereto agree as follows:
I.
REALESTATEESPANOL SITE OPERATION
1.1 SITE OPERATION AND OTHER REE OBLIGATIONS. Throughout the Term, REE
will use reasonable efforts to operate the Site or cause the Site to be operated
in the following manner:
(a) INFORMATION POSTINGS. The site will make available to users, via
the Internet, general information relating to the purchase and sale of
residential property including but not limited to, property listings, real
estate agent data, real estate agent networking and applications for mortgage
loan products.
(b) BILINGUAL PAGE VIEWS. The Site shall include page views in both
Spanish and English.
(c) EDUCATIONAL TOOLS. The Site will offer educational and analytical
tools to assist users in the home buying and mortgage process.
(d) ADVERTISING, MARKETING AND PROMOTION. REE may, at its option,
from time to time, enter into agreements with other Internet sites to market or
co-brand the REE Site ("Cooperative Agreements"). Cooperative Agreements shall
not be subject to the prior review or approval of NAHREP, so long as the
websites created and/or operated that are the subject of the Cooperative
Agreements are not in competition with or detrimental to either the REE Site or
the NAHREP Site. REE does not guarantee receipt or transmission of a minimum
number of user "hits".
(e) TRANSMISSION OF DATA. REE will maintain the accessibility of the
Site and the transmission of electronic data.
(f) DISPLAY OF LINKS TO NAHREP. The Site will include one or more
hyperlinks to the NAHREP Site (▇▇▇.▇▇▇▇▇▇.▇▇▇) via text and/or graphics. A
hyperlink will be placed in a prominent location within the Site, acceptable to
NAHREP.
(g) SERVICE TO NAHREP MEMBERS. REE shall, at no charge to NAHREP
members ("Members"), post information on the Site about Members' products and
businesses, for those Members who elect to have such
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information posted on the Site, all in accordance with REE's Member information
posting policies (which policies shall be established and amended from time to
time in REE's sole discretion).
1.2 USER INFORMATION. REE will maintain a database of user information
with regard to the use of the Site. REE shall retain ownership of all such data,
but may share data, where permitted by law, with NAHREP so as to further
marketing and economic studies of the users and members. NAHREP shall maintain
all such data in confidence and shall not, directly or indirectly, exploit such
data for commercial gain or share such data with any third party.
II.
NAHREP'S OBLIGATIONS AND ENDORSEMENT
2.1 ENDORSEMENT. NAHREP hereby grants to REE, on the terms and conditions
set forth in this Agreement, NAHREP's public endorsement of the Site. The Site
shall bear NAHREP's exclusive endorsement as an official website of NAHREP
throughout the Term, NAHREP may continue to operate the NAHREP Site, but, with
the exception of the NAHREP Site, shall not endorse any other Spanish language
real estate oriented website or permit any such website to be referred to as the
official website of NAHREP.
2.2 NAHREP'S SERVICES. NAHREP shall, from time to time and at the request
of REE, provide consultation in the development of new services and products
offered through the Site. NAHREP will provide its data, lists, names and
addresses of members, studies, and other reports, to REE. Such information shall
be deemed NAHREP Proprietary Material as defined in Section 4.2.
2.3 REGISTRATION/LINKS. NAHREP will assist REE from time to time in
devising and/or upgrading the Site's links to ▇▇▇.▇▇▇▇▇▇.▇▇▇.
III.
CONSIDERATION
In consideration for NAHREP's exclusive endorsement of the Site, REE shall
pay NAHREP an annual fee (or contribution) of Fifty Thousand Dollars
($50,000.00) payable on or before June 30 of each full calendar year during the
Term.
IV.
TRADEMARKS
4.1 TRADEMARKS AND INTELLECTUAL PROPERTY OF REE. REE hereby grants to
NAHREP the nonexclusive right during the Term to use (i.e., to copy, transmit,
distribute, display and perform both privately and publicly) REE trademarks
(including but not limited to RealEstateEspanol and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) and
logos (the "▇▇▇ ▇▇▇▇▇") and other intellectual property and related textual and
graphic material that may be provided by REE to NAHREP for the sole and express
purpose of inclusion on the NAHREP Site from time to time (collectively, with
the ▇▇▇ ▇▇▇▇▇ the "REE Proprietary Materials"). REE also authorizes NAHREP to
refer in NAHREP's advertising and promotion to the Site as endorsed by NAHREP.
All use of REE Proprietary Materials hereunder shall inure to the benefit of REE
and shall not create any rights, title or interest in them for NAHREP.
Notwithstanding the foregoing, any use by NAHREP of the REE Proprietary
Materials in any advertisements, promotional materials and on its website shall
be subject to REE's prior, written approval. NAHREP shall submit all such
advertising, marketing and promotional materials using REE Proprietary Materials
to REE for its approval at least ten (10) business days prior to publication or
distribution of such materials. If REE does not respond at least five (5)
business days from the date of receipt of such proposed materials, REE will be
deemed to have approved. No other use of the ▇▇▇ ▇▇▇▇▇, other REE Proprietary
Materials or marks, symbols and/or other indicia of origin or other designations
confusingly similar to any of the foregoing may be made by NAHREP for any
purpose without the prior written approval of REE. As between REE and NAHREP,
REE owns and shall continue to own, exclusively, all right, title and interest
(including, without limitation, all rights provided under the law of copyright
and trademark) in and to the ▇▇▇ ▇▇▇▇▇ and other REE Proprietary Materials,
together with all related intellectual property including the technical
knowledge related to the development of the common links with NAHREP (not
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including security protocols and software provided by NAHREP or others),
software and hardware used to implement the system, including the Site and the
databases, the underlying system's design and function, and all other elements
of the Site which are the work product of REE employees or which were created
for REE by any outside contractor for use on the Site, subject to the
permissions granted in this Agreement. NAHREP recognizes the proprietary nature
of REE's intellectual property, including, but not limited to, the items
enumerated above.
4.2 TRADEMARKS AND INTELLECTUAL PROPERTY OF NAHREP. NAHREP hereby grants
to REE the nonexclusive right during the Term to use (i.e., to copy, transmit,
distribute, display and perform, both privately and publicly) NAHREP trademarks
and logos (the "NAHREP Marks") and other intellectual property and other related
textual and graphic material that are provided by NAHREP to REE (including, but
without limitation, the information provided by NAHREP pursuant to Section 4.2
above) (collectively, the "NAHREP Proprietary Materials") for the sole and
express purpose of inclusion on the Site and/or related advertising, marketing
and promotion. NAHREP also authorizes REE to include the NAHREP Marks and to
refer in REE's advertising and promotion to the Site as endorsed by NAHREP and
as an official NAHREP website. All use of NAHREP Marks or other Proprietary
Materials hereunder shall inure to the benefit of NAHREP and shall not create
any rights, title or interest in them for REE. No other use of the NAHREP Marks
or other NAHREP Proprietary Materials or other designations confusingly similar
to any of the foregoing may be made by REE for any purpose without the prior
written approval of NAHREP. As between NAHREP and REE, NAHREP owns, and shall
continue to own, exclusively, all right, title and interest (including, without
limitation, all rights provided under the law of copyright and trademark) in and
to the NAHREP Marks and other NAHREP Proprietary Materials.
V.
CONFIDENTIALITY
5.1 CONFIDENTIAL INFORMATION. Each party (the "Receiving Party")
acknowledges that by reason of its relationship with the other party (the
"Disclosing Party") hereunder, the Receiving Party might have access to certain
information and materials concerning the Disclosing Party's membership,
operations, business, its financial, business and technical plans and
strategies, inventions, new products or services and technology ("Confidential
Information"). The terms and conditions set forth in this Agreement shall be
Confidential Information. The Receiving Party acknowledges and agrees that the
Disclosing Party's Confidential Information is of substantial value to the
Disclosing Party, which value would be harmed if such Confidential Information
were disclosed to third parties. The Receiving Party agrees that it shall not
use (except in the performance of its obligations under this Agreement) in any
way for its own account or any account of any third party, nor disclose to any
third party, such Confidential Information. The Receiving Party may disclose the
Disclosing Party's Confidential Information to its employees and contractors who
need to know such Confidential Information, provided such employees and
contractors have signed confidentiality agreements with terms no less
restrictive than the terms in this Agreement. The Receiving Party shall not
publish in any form the Disclosing Party's Confidential Information, except to
the extent permitted by this Agreement. The obligations in this section shall
survive the termination of this Agreement.
5.2 EXCLUSIONS. Confidential Information does not include any information
that the Receiving Party can demonstrate by written records:
(a) was known to the Receiving Party prior to its disclosure
hereunder by the Disclosing Party;
(b) was independently developed by the Receiving Party;
(c) is or becomes publicly known through no wrongful act of the
Receiving Party;
(d) has been rightfully received from a third party whom the
Receiving Party has reasonable grounds to believe is authorized to make such
disclosure without restriction; or
(e) has been approved for public release by the Disclosing Party's
prior written authorization.
Confidential Information may be disclosed pursuant to applicable law,
regulations or court order, provided that the Receiving Party provides prompt
advance notice thereof to enable the Disclosing Party to seek a protective order
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or otherwise prevent such disclosure. In addition, REE and NAHREP may disclose
the existence and terms of this Agreement in connection with a potential
acquisition of substantially all of the stock or assets of REE or NAHREP or a
private or public offering of REE's securities or NAHREP's securities.
VI.
LIABILITY AND INDEMNIFICATION
6.1 LIMITATION OF LIABILITY. REE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL,
OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN
CONNECTION WITH THIS AGREEMENT OR THE SITE, EVEN IF REE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. FURTHER, REE'S AGGREGATE LIABILITY ARISING WITH
RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL FEES PAID,
OR PAYABLE, TO NAHREP UNDER THIS AGREEMENT.
6.2 DISCLAIMERS. REE MAKES NO EXPRESS OR IMPLIED WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO THE SITE OR ANY PRODUCTS OR SERVICES MARKETED
THROUGH THE SITE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS,
MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A
COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, REE MAKES NO
REPRESENTATION THAT THE OPERATION OF THE REE SITE WILL BE CONTINUOUS OR
ERROR-FREE, AND REE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS
OR ERRORS.
6.3 DUTY OF INDEMNIFICATION. Subject to the terms of this Agreement, each
party (the "Indemnifying Party") agrees to defend, indemnify and save the other
party and its officers, directors, employees and agents (collectively, the
"Indemnified Party") harmless from and against any and all damages, losses,
settlement payments, obligations, liabilities, claims, actions or causes of
action, and reasonable costs and expenses suffered, sustained or required to be
paid by the Indemnified Party as a result of any infringement of any third party
intellectual property rights caused by the use of the Indemnifying Party's marks
or other Proprietary Materials in accordance with the terms of this Agreement.
6.4 SURVIVAL OF INDEMNIFICATIONS. The Indemnification obligations set
forth in Section 6.3 above will survive the expiration or termination of this
Agreement by either party for any reason.
6.5 NOTICE OF CLAIMS. Each party shall promptly notify the other in
writing of any and all litigation and claims known to such party made against it
or the other party in connection with this Agreement. Each party shall cooperate
with the other in the defense or handling of any claim, action or investigation
relating to the subject matter of this Agreement, provided that such cooperation
shall not be deemed an acceptance of responsibility therefor, except as provided
below. Any request for indemnification under this paragraph shall be in writing
and shall state with particularity the specific facts supporting the request for
indemnification and a good faith estimate of the amount of the indemnification
requested. In the event responsibility for a request for indemnification
hereunder is unconditionally accepted in writing, the party accepting such
responsibility may, at its option, elect to take up the defense or handling of
any pending claim, action or investigation and, in such event, the party
requesting indemnification shall promptly relinquish control of such defense to
the accepting party. Unless and until a request for indemnification hereunder is
unconditionally accepted, the requesting party may retain control of the defense
or handling of the claim, action or investigation. The failure of a party to
accept a request for indemnification under this paragraph shall not be binding
upon the requesting party and such party's retention of the control of the
defense or handling of the claim, action or investigation shall not prejudice
its right to seek enforcement of this paragraph in court.
VII.
TERM AND TERMINATION
7.1 INITIAL TERM. The initial term of this Agreement (the "Initial Term")
is ten (10) years from December 31, 1999, which is the date REE expects to begin
to transmit data via the Internet on behalf of NAHREP members, users, and the
general public (the "Commencement Date").
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7.2 SUBSEQUENT TERMS. Following expiration of the Initial Term, this
Agreement shall continue in effect until either party terminates it as provided
below. The Initial Term and any subsequent terms are referred to herein as the
"Term".
7.3 TERMINATION.
(a) TERMINATION FOR CAUSE. Either party shall have the right to
terminate this Agreement upon a material breach of this Agreement by the other
party which is not cured within six (6) calendar days after written notice
thereof. This right of termination shall be in lieu of any other right or remedy
(other than the indemnification rights set forth in Section 6.3).
(b) TERMINATION FOR CONVENIENCE. After the Initial Term, either party
may terminate this Agreement without cause and for its convenience by giving one
hundred twenty (120) days prior written notice to the other party.
(c) TERMINATION FOR INSOLVENCY. If either party abandons or ceases
its business or the activities required of it under this Agreement or abandons
or forfeits the legal right to transact business either voluntarily or
involuntarily, the other party may immediately terminate this Agreement by
written notice to the other party.
(d) EFFECTS OF TERMINATION. Upon termination or expiration of this
Agreement for any reason:
(i) REE shall immediately sever the links between the REE Site
and the NAHREP Site; and
(ii) each party shall immediately return to the other party all
Proprietary Materials. Effective upon the termination of this Agreement, each
party shall cease to use all Marks and Proprietary Materials of the other party.
Effective upon the termination of this Agreement, each party shall cease to
use all Marks and Proprietary Materials of the other party.
VIII.
MISCELLANEOUS
8.1 NOTICES. Any written notice required, or permitted, to be given to the
parties hereunder shall be addressed to the parties at the addresses first set
forth above. All written notices shall be delivered in personal or shall be sent
by registered or certified mail, return receipt requested, and shall be deemed
effective, three (3) days after the same is mailed as provided above with
postage prepaid. Notice sent by any other method shall be effective only upon
actual receipt.
8.2 ASSIGNMENT. This Agreement shall not be assignable in whole or in part
by REE or NAHREP without the other party's prior written consent, and any
attempted assignment without such consent shall be void. Subject to the
foregoing, this Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and permitted assigns. A
change in control of either party, by merger or sale of stock or assets, shall
not be deemed to be an assignment under this Agreement.
8.3 WAIVER. No term or provision hereof shall be deemed waived, and no
variation of terms or provisions hereof shall be deemed consented to, unless
such waiver or consent shall be in writing and signed by the party against whom
such waiver or consent is sought to be enforced. Any delay, waiver or omission
by REE or NAHREP to exercise any right or power arising from any breach or
default of the other party in any of the terms, provisions or covenants of this
Agreement shall not be construed to be a waiver by REE or NAHREP of any
subsequent breach or default of the same or other terms, provisions or covenants
on the part of either party.
8.4 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof, except where
expressly noted herein, and all prior negotiations, agreements and
understandings, whether oral or written, including, without limitation, that
certain Internet Services Agreement between the parties, dated September 1,
1999, are superseded or canceled hereby.
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8.5 MODIFICATION. This Agreement may not be amended or modified except in
a written document signed by both parties.
8.6 SEVERABILITY. If any provision of this Agreement is declared or found
to be illegal, unenforceable or void, this Agreement shall be construed as if
not containing that provision, and the rest of the Agreement shall remain in
full force and effect, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
8.7 INDEPENDENT CONTRACTOR. REE, in performance of this Agreement, is
acting as an independent contractor, is not the partner, joint venture
partner or agent of NAHREP and has no authority to act on behalf of NAHREP
except as provided in this Agreement. The parties shall each be responsible
for payment of their respective taxes and assessments incurred in connection
with performance of this Agreement.
8.8 FORCE MAJEURE. Neither party shall be held responsible for damages
caused by any delay or default due to any contingency beyond its control
preventing or interfering with performance hereunder.
8.9 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
8.10 SALE, MERGER, ACQUISITION. This Agreement shall remain in full force
and effect upon change in control of either party by merger or sale of stock,
IPO, or outright sale; provided, however, that if the new controlling party is
the National Association of Realtors, or any organization which is controlled,
directly or indirectly, whether by contract or otherwise, by the National
Association of Realtors, NAHREP will have the right to terminate this Agreement
by written notice within thirty (30) days following receipt of notice of such
change in control.
8.11 GOVERNING LAW AND VENUE. This Agreement shall be construed and
performance thereof shall be determined according to the laws of the State of
California. Should a dispute arise under this contract, the parties agree that
jurisdiction over and venue of any suit arising out of or related to this
Agreement shall be exclusively in the state and/or federal courts of San Diego,
California.
8.12 ATTORNEYS' FEES. The prevailing party in any proceeding under this
Agreement shall be entitled to recover from the other party its attorneys' fees
and costs incurred for such proceeding.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
signed, sealed and delivered by its duly authorized officer as of the date first
written above.
Century Finance USA, Inc.,
d.b.a. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
National Association of Hispanic Real
Estate Professionals
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, President and Chief
Executive Officer
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