EXHIBIT 10.11
▇▇▇▇▇▇.▇▇▇ APPROVED WEB PRO AGREEMENT
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COMPANY:_____________________ EFFECTIVE DATE:_________________________
ADDRESS:_____________________
_____________________
THIS ▇▇▇▇▇▇.▇▇▇ APPROVED WEB PRO AGREEMENT (the "Agreement"), effective as
of the Effective Date, between ▇▇▇▇▇▇.▇▇▇, Inc. ("▇▇▇▇▇▇.▇▇▇"), and Company sets
forth the terms and conditions governing certain marketing and other services to
be performed by the parties. Additional terms and conditions and definitions of
certain capitalized terms appear on the reverse side of this Agreement. 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. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
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1.1 Sales and Billing. ▇▇▇▇▇▇.▇▇▇ will be responsible for receiving and
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fulfilling orders and invoicing and collecting revenues for all sales of
Production Services. ▇▇▇▇▇▇.▇▇▇ will assign Company a sales origination partner
code for Company's customers to use when submitting orders for Production
Services to ▇▇▇▇▇▇.▇▇▇ via telephone, facsimile, or electronic forms.
1.2 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. ▇▇▇▇▇▇.▇▇▇ will host ▇▇▇▇▇▇.▇▇▇ Images on
its servers, or those of its affiliates, and will provide to Company a URL link
and available identifying listing information for each ▇▇▇▇▇▇.▇▇▇ Image
purchased by Company's customers. Company will use commercially reasonable
efforts to link each such ▇▇▇▇▇▇.▇▇▇ Image to the appropriate listings on the
Hosted Sites by the end of the business day following the day ▇▇▇▇▇▇.▇▇▇ makes
such ▇▇▇▇▇▇.▇▇▇ Image available on the ▇▇▇▇▇▇.▇▇▇ server or those of its
affiliates.
1.3 Exclusivity. ▇▇▇▇▇▇.▇▇▇ will be the exclusive provider of Virtual Tour
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Images for the Company Sites. Company will not directly or indirectly promote or
act as a provider of Virtual Tour Images, nor will it promote, display ads for,
or use the services of any third party acting in such capacity. In addition,
Company will not permit any Virtual Tour Images, or related services or
technology, of any third party to be posted to, linked to or otherwise made
accessible through the Company Sites. This provision does not prohibit Company
customers that use a provider of Virtual Tours Images other than ▇▇▇▇▇▇.▇▇▇ to
link or post to the Hosted Sites.
2. MARKETING AND PROMOTION
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2.1 Company Sites. Company agrees to prominently market and promote the
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▇▇▇▇▇▇.▇▇▇ branded Production Services on the Company Sites. Such marketing and
promotion will include ▇▇▇▇▇▇.▇▇▇ approved electronic order forms permitting
Company's customers to submit orders for Production Services to ▇▇▇▇▇▇.▇▇▇ via
the Internet. Additionally, Company shall display ▇▇▇▇▇▇.▇▇▇'s logo on a
prominent page within each Company Site and shall use commercially reasonable
efforts to cause Hosted Sites to display ▇▇▇▇▇▇.▇▇▇'s logo as well. Such logo,
when clicked on, will link directly to an electronic order form permitting
Company's customers to submit orders for Production Services to ▇▇▇▇▇▇.▇▇▇ via
the Internet. Company shall display the words "▇▇▇▇▇▇.▇▇▇ Approved Web Pro"
prominently on the Company Sites.
2.2 ▇▇▇▇▇▇.▇▇▇ Site. ▇▇▇▇▇▇.▇▇▇ will market and promote Company, including
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use of a logo, as a partner on the ▇▇▇▇▇▇.▇▇▇ Web site.
2.3 General Marketing. ▇▇▇▇▇▇.▇▇▇ will create and deliver to Company, a
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demonstration CD and branded templates to be used by Company to produce co-
branded brochures and other marketing materials. Company will market the
Production Services in sales presentations and marketing activities with real
estate customers. As appropriate, Company will promote the Production Services
through its seminars, training and conferences and at real estate tradeshows it
attends. Company may be requested to participate in press releases and other
marketing initiatives from time to time. Company will not unreasonably withhold
approval.
2.4 Listing Creation/Editing. As appropriate, Company will provide a
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mechanism for real estate customers to order branded Production Services when
creating their listing or editing their web site.
3. FEES
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During the Term of this Agreement, ▇▇▇▇▇▇.▇▇▇ will pay quarterly fees to
Company based on sales of Production Services ("Transaction Fees") as follows:
3.1 With respect to all Company Originated Orders fulfilled by ▇▇▇▇▇▇.▇▇▇
during the Term through which ▇▇▇▇▇▇.▇▇▇ Images are linked to a Company Site or
a Hosted Site, ▇▇▇▇▇▇.▇▇▇ will pay to Company for each calendar quarter, 5% of
Net Revenues collected from Production Services so sold during the quarter.
3.2 No Transaction Fees will be due hereunder (i) with respect to Production
Services sold to third parties other than as expressly set forth above and (ii)
with respect to any Production Services ▇▇▇▇▇▇.▇▇▇ distributes on a promotional
basis free of charge or at a discounted price.
4. TERM
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4.1 Term. This Agreement will commence on the Effective Date and continue
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for a period of six (6) months, and will be automatically renewed for successive
six (6) month periods unless either party notifies the other in writing not less
than forty-five (45) days prior to the end of the then-current term of its
intention to terminate this Agreement as of the end of such term.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
▇▇▇▇▇▇.▇▇▇, INC. COMPANY NAME:______________________
By: _____________________ By: _____________________________
Name: _____________________ Name:_____________________________
Title: _______________________ Title: ___________________________
ADDITIONAL PROVISIONS
1. Certain Defined Terms
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"▇▇▇▇▇▇.▇▇▇ Image" means an electronic Image of a property produced by or on
behalf of ▇▇▇▇▇▇.▇▇▇.
"▇▇▇▇▇▇.▇▇▇ Technology" means all ▇▇▇▇▇▇.▇▇▇ Images and software and hardware,
including the demonstration CD, and including the ▇▇▇▇▇▇.▇▇▇ for Java Software,
used to capture, process and view ▇▇▇▇▇▇.▇▇▇ Images.
"Company Originated Orders" means any legitimate order ▇▇▇▇▇▇.▇▇▇ receives
during the Term, for Production Services via telephone, facsimile, or electronic
order form from a Company customer referencing Company's assigned sales
origination partner code.
"Company Sites" means the collection of HTML documents, other than Hosted Sites,
residing on servers operated by or for Company or its affiliate and accessible
on or after the effective date via the Internet.
"Confidential Information" means any trade secrets, confidential 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 (the "Confidential Information"). The terms of
this Agreement will constitute Confidential Information, except to the extent
that ▇▇▇▇▇▇.▇▇▇ discloses such information in good faith to a legitimate
potential, or actual, strategic investor, investment banker, venture capital
firm or consultant, or as required by statute, regulation or other law.
"Hosted Sites" means the collection of HTML documents that Company or an
affiliate creates and/ or hosts for its customers on its servers, or residing on
servers operated by or for Company or its affiliate, and accessible on or after
the Effective Date via the Internet.
"Net Revenues" means the gross amount received by ▇▇▇▇▇▇.▇▇▇ for sales of the
Production Services less twenty-five (25%) covering: (i) refunds, discounts,
promotions, credits and allowances, (ii) packaging, handling fees and freight,
(iii) sales taxes and other governmental charges, and (iv) reasonable provisions
for doubtful colleltions.
"Production Services" means services provided by or on behalf of ▇▇▇▇▇▇.▇▇▇ in
producing ▇▇▇▇▇▇.▇▇▇ Images.
"Service Provider Network" means the network of individuals with whom ▇▇▇▇▇▇.▇▇▇
has entered into agreements to capture images at designated sites on
▇▇▇▇▇▇.▇▇▇'s behalf.
"Term" means the Initial Term of this Agreement and the Renewal Terms, if any,
as set in forth in Section 4 on the first page of this Agreement.
"Virtual Tour Images" means 360, three-dimensional, virtual reality, virtual
tour, virtual walkthrough or other similar images, or production services for
such images.
2. Invoices; Reports; Payment of Fees
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Calculation of quarterly Transaction Fees will commence immediately for the
calendar quarter in which the Effective Date occurs. ▇▇▇▇▇▇.▇▇▇ will make all
payments of Transaction Fees net thirty (30) days from the end of each calendar
quarter. With each quarterly payment, ▇▇▇▇▇▇.▇▇▇ will provide a report stating
the number of ▇▇▇▇▇▇.▇▇▇ Images sold in accordance with this Agreement during
the quarter and providing a calculation of the Transaction Fees payable.
3. ▇▇▇▇▇▇.▇▇▇ Technology
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3.1 All ▇▇▇▇▇▇.▇▇▇ Technology, is, 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 ▇▇▇▇▇▇.▇▇▇ Technology.
3.2 ▇▇▇▇▇▇.▇▇▇ hereby grants to Company a nonexclusive, worldwide, royalty-
free, nontransferable license to include links to the ▇▇▇▇▇▇.▇▇▇ Images on the
Company Sites and Hosted Sites solely for the purposes 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. Trademarks
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4.1 ▇▇▇▇▇▇.▇▇▇ 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 mark ▇▇▇▇▇▇.▇▇▇ may subsequently adopt as a trade name or to
designate the Production Services (collectively, the "▇▇▇▇▇▇.▇▇▇ Marks"), and
Company will not take any actions inconsistent with ▇▇▇▇▇▇.▇▇▇'s ownership
rights. Company owns and at all times will continue to own the trademarks,
service marks and/or trade names customarily used by Company during the Term
(the "Company Marks"), and ▇▇▇▇▇▇.▇▇▇ will not take any actions inconsistent
with Company' ownership rights. Each party's use of the other party's marks will
not create in the using party any right, title or interest therein or thereto,
and all such use will inure to the exclusive benefit of other party.
4.2 Subject to the restrictions set forth herein, ▇▇▇▇▇▇.▇▇▇ hereby grants
Company a nonexclusive, worldwide, royalty-free, fully paid up, nontransferable
right to use the ▇▇▇▇▇▇.▇▇▇ Marks, during the Term, with ▇▇▇▇▇▇.▇▇▇'s prior
written approval, which ▇▇▇▇▇▇.▇▇▇ will not unreasonably withhold or delay,
solely in connection with promotion and marketing of the Production Services.
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, solely in connection on with promotion
and marketing of the Production Services. At the reasonable request of either
party, the other party will provide assistance with the protection and
maintenance of the marks of the requesting party. Each party may only use the
marks of the other party as expressly permitted herein and agrees to use the
marks of the other party in a manner commensurate with the style, appearance and
quality of the other party's services and/or products bearing such marks.
5. Limitation on Grant of Rights
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Except as expressly provided herein, neither party receives any other right
or license to the technology or intellectual property of the other party.
6. Termination
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6.1 Upon termination or expiration, (i) Company and ▇▇▇▇▇▇.▇▇▇ will cease
all use of marks of the other party and (ii) Company will remove links to
▇▇▇▇▇▇.▇▇▇ Images from all Company Sites and Hosted Sites within a commercially
reasonable time consistent with ▇▇▇▇▇▇.▇▇▇'s Terms and Conditions set forth on
the ▇▇▇▇▇▇.▇▇▇ Web site.
6.2 This Agreement will terminate in the event a party 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. Notwithstanding the
foregoing, ▇▇▇▇▇▇.▇▇▇ may terminate this Agreement in its sole discretion, upon
ten (10) days prior written notice, if Company fails to comply with ▇▇▇▇▇▇.▇▇▇'s
general rules and guidelines governing the Web Pro Program.
6.3 The provisions of Sections 3.1, 4.1, 5, 6.1, 6.3, 7, 8 and 9 of these
Additional Terms and Conditions will survive the expiration or termination of
this Agreement for any reason. All other rights and obligations of the parties
will cease upon expiration or termination of this Agreement.
7. 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.
8. No Warranties; Limitation of Liability
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▇▇▇▇▇▇.▇▇▇ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE ANY GOODS OR SERVICES PROVIDED BY THIS AGREEMENT. EXCEPT WITH RESPECT TO A
BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION 1.3 ON THE FIRST
PAGE OF THIS AGREEMENT OR SECTION 7 OF THESE ADDITIONAL TERMS AND CONDITIONS, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM
OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM
ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9. Miscellaneous
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Any notice required or permitted by this Agreement will be deemed given if
sent by registered mail, postage prepaid, addressed to the other party at the
address set forth within this Agreement. Delivery will be deemed effective three
(3) days after deposit with postal authorities. Nonperformance of either party
will be excused to the extent that performance is rendered impossible by storm,
lockout or other labor trouble, riot, war, rebellion, strike, fire, flood,
accident or other act of God, governmental acts, orders or restrictions, or any
other reason where failure to perform is beyond the control and not caused by
the gross negligence or willful misconduct of the non-performing party. The
relationship of ▇▇▇▇▇▇.▇▇▇ and Company established by this Agreement is that of
independent contractors. Company shall ensure that all of Company's customers
comply with all applicable provisions of this Agreement, and Company shall
indemnify, defend and hold ▇▇▇▇▇▇.▇▇▇ harmless from and against any costs,
liability and expenses (including without limitation attorney's fees) arising in
connection with any breach by Company's customers of any provision of this
Agreement. This Agreement will be governed by and construed under the laws of
the State of California without reference to conflict of laws principles. This
Agreement, together with all exhibit and attachments hereto, sets forth the
entire agreement and understanding of the parties relating to the subject matter
herein and merges all prior discussions between them. No modification of or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing signed by the party to be charged, and the
waiver of any breach or default will not constitute a waiver of any other right
hereunder or any subsequent breach or default. Neither party may assign
this Agreement, or assign or delegate any right or obligation hereunder, without
the prior written consent of the other party; provided, however, that either
party may assign this Agreement or assign or delegate 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.