<PAGE>
As filed with the Securities and Exchange Commission on June 24, 1999
Registration No. 333-80639
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
bamboo.com, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 7379 52-2129710
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Number)
incorporation or Classification Code
organization) Number)
----------------
124 University Avenue
Palo Alto, CA 94301
(650) 325-6787
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
LEONARD B. McCURDY
Chairman and Chief Executive Officer
bamboo.com, Inc.
124 University Avenue
Palo Alto, CA 94301
(650) 325-6787
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Please send copies of all communications to:
Mario M. Rosati, Esq. Kenton J. King, Esq.
Issac J. Vaughn, Esq. Gregory C. Smith, Esq.
Wilson Sonsini Goodrich & Rosati, P.C. Skadden, Arps, Slate, Meagher & Flom
650 Page Mill Road LLP
Palo Alto, CA 94304 525 University Avenue, Suite 220
(650) 493-9300 Palo Alto, CA 94301
---------------- (650) 470-4500
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), please check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum
Title of Each Class of Securities to Aggregate Amount of
be Registered Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------
<S> <C> <C>
Common stock, $0.001 par value...... $57,500,000 $15,985(2)
</TABLE>
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
(2) Previously paid.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Explanatory Note
This Amendment is for the sole purpose of filing additional exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than the
underwriting discounts, payable by the Registrant in connection with the sale
of the securities being registered. All amounts are estimates except the SEC
registration fee, the NASD filing fee and the Nasdaq/NMS listing fee.
<TABLE>
<S> <C>
SEC Registration Fee............................................... $15,985
NASD Filing Fee.................................................... 6,250
Nasdaq National Market Listing Fee................................. (*)
Printing Costs..................................................... (*)
Legal Fees and Expenses............................................ (*)
Accounting Fees and Expenses....................................... (*)
Blue Sky Fees and Expenses......................................... (*)
Transfer Agent and Registrar Fees.................................. (*)
Miscellaneous...................................................... (*)
-------
Total............................................................ $ (*)
=======
</TABLE>
- --------
(*) To be provided by amendment.
Item 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933. Article VII of our current
Certificate of Incorporation (Exhibit 3.1 hereto) and Article VI of our current
Bylaws (Exhibit 3.3 hereto) provide for indemnification of our directors,
officers, employees and other agents to the maximum extent permitted by
Delaware law. In addition, we have entered into Indemnification Agreements
(Exhibit 10.1 hereto) with our officers and directors. The Underwriting
Agreement (Exhibit 1.1) also provides for cross-indemnification among
bamboo.com and the Underwriters with respect to certain matters, including
matters arising under the Securities Act.
Item 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since our incorporation in November 1995, we have sold and issued the
following securities:
1. On November 2, 1995 we issued 100,000 shares of common stock to two
founders for an aggregate consideration of C$10.00.
2. On December 12, 1996 we issued 40,000 to one U.S. investor's shares of
common stock and 160,000 shares of common stock to 12 non-U.S.
investors for an aggregate consideration of C$200,000.00.
3. On July 31, 1997 we issued 16,080 shares of common stock to 6 investors
for an aggregate consideration of C$18,759.89.
4. On February 12, 1998 we issued 150,000 shares of common stock to 3
officers for an aggregate consideration of C$150,000, paid for by
services rendered and options to purchase 500,000 shares of common
stock at an exercise price of $.01.
5. On March 31, 1998 we issued 254,000 shares of common stock to 14
investors for an aggregate consideration of C$220,000.
6. On April 8, 1998 we issued 36,000 shares of common stock to one officer
and two investors for an aggregate consideration of C$36,000.
II-1
<PAGE>
7. On April 13, 1998 we issued 40,000 shares of common stock to an
employee for an aggregate consideration of C$40,000.
8. On April 21, 1998 we issued 40,000 shares of common stock to one
officer and an investor for an aggregate consideration of C$40,000.
9. On May 22, 1998 we issued 177,000 shares of common stock to two
investors for an aggregate consideration of C$177,000.
10. On June 28, 1998 we issued warrants for 120,000 shares of common stock
to six investors which were exercised for an aggregate consideration of
C$120,000.
11. On September 28, 1998 we issued 13,368 shares of common stock to three
investors for an aggregate consideration of C$40,104.
12. On September 30, 1998 we issued 50,000 shares of common stock to one
investor for an aggregate consideration of C$150,000.
13. On October 20, 1998 we issued 148,750 shares of Series A preferred
stock to eleven investors at an aggregate consideration of $595,000.
14. On November 11, 1998 we issued warrants for 139,965 shares of common
stock to one investor at an exercise price of $4.00 per share, which
was later amended to warrants for 100,000 shares of common stock on
June 11, 1999.
15. On December 8, 1998 we issued 25,000 shares of Series A preferred stock
to 3 non-U.S. investors and 57,500 shares of Series A preferred stock
to 6 non-U.S. investors for an aggregate consideration of C$330,000.
16. On January 1, 1999 we issued 2,650,548 shares of Class B redeemable
common stock to twenty eight shareholders as part of the amalgamation
and reorganization of our business as a Delaware corporation.
17. On February 25, 1999 we issued 43,000 shares of common stock to two
investors at an aggregate consideration of $21,500
18. On March 12, 1999 we issued 2,324,774 shares of Series B preferred
stock to eighteen investors at an aggregate consideration of
$13,499,962.61
19. On June 11, 1999, the Company entered into an agreement to sell 1,100
shares of its Series C redeemable preferred stock and 446,725 shares of
its common stock to four investors for an aggregate consideration of
$11,000,000.
20. Since our incorporation, we have issued an aggregate of 2,311,013
options and stock purchase rights to purchase our common stock under
the 1998 Employee Director and Consultant Stock Plan to employees,
directors, and consultants with exercise prices ranging from $0.50 to
$1.50.
The issuances of securities described in Items 1-12 were sold Canadian
dollars and are denominated above in Canadian dollars. "C$" means Canadian
dollars.
The issuances of securities described in Items 1, 3-6, 8-11 were sold to
persons who were neither nationals nor residents of the United States and no
facilities or instrumentalities of U.S. interstate commerce were used in
connection with any offer or sale thereof.
The issuance of the other above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of such
Securities Act as transactions by an issuer not involving any public offering.
In addition, the issuances described in Item 20 were deemed exempt from
registration under the Securities Act in reliance upon Rule 701 promulgated
under the Securities Act. The recipients of securities in each such transaction
represented their intentions to acquire the securities for investment only and
not with a
II-2
<PAGE>
view to or for sale in connection with any distribution thereof and appropriate
legends were affixed to the share certificates and warrants issued in such
transactions. All recipients had adequate access, through their relationships
with us, to information about us.
Item 16. EXHIBITS.
(a)
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement dated , 1999.**
3.1 Certificate of Incorporation of Registrant as currently in effect.*
3.2 Form of Certificate of Incorporation of Registrant to be filed
immediately following the closing of the offering made under this
Registration Statement.**
3.3 Articles of Amalgamation of Jutvision Canada, Inc. (bamboo.com) dated
January 1, 1999.*
3.4 Articles of Amendment of Jutvision Canada, Inc. (bamboo.com) dated
April 23, 1999.*
3.5 Articles of Amendment of bamboo.com Canada, Inc. dated June 7, 1999.*
3.6 Amended and Restated Conversion and Pairing Agreement with bamboo.com
Canada, Inc. dated as of June 7, 1999.*
3.7 Bylaws of Registrant as currently in effect.*
3.8 Form of Bylaws of Registrant to be adopted immediately following the
closing of the offering made under this Registration Statement.**
3.9 Series C Redeemable Preferred Stock Purchase Agreement dated as of
June 11, 1999.*
4.1 Specimen Common Stock Certificate.**
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.**
9.1 Share Contribution, Subscription, Right of First Refusal and Voting
Agreement Dated Jan. 1, 1999.*
10.1 Form of Indemnification Agreement between the Registrant and each of
its directors and officers.*
10.2 1998 Employee, Director and Consultant Stock Plan and the form of
agreement thereunder, as currently in effect.*
10.3 Form of Amended and Restated 1998 Employee, Director and Consultant
Stock Plan and the form agreement thereunder to be adopted immediately
upon the effectiveness of the Registration Statement.*
10.4 Form of 1999 Employee Stock Purchase Plan and form of agreements
thereunder.*
10.5 Investors' Rights Agreement dated as of March 12, 1999 among
bamboo.com and certain investors.*
10.6 Joint Services Agreement with RealSelect, Inc. dated as of Nov. 11,
1998 as amended June 11, 1999.+
10.7 Distribution Agreement with Microsoft Corporation dated as of March
16, 1999.+
10.8 Distribution Agreement with HomeSeekers.com, Inc. dated as of Nov. 20,
1998.+
10.9 Distribution Agreement with Homes.com, a division of PCL Media
Limited, dated as of May 10, 1999.+
10.10 Form of Distribution Agreement with multiple listing services.*
10.11 Form of bamboo.com Approved Web Pro Agreement.*
10.12 Form of Distribution and Co-marketing Agreement with real estate
brokerage companies.*
10.13 Line of Credit with Silicon Valley Bank dated April 16, 1999.*
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
10.14 Master lease agreement with Silicon Valley Bank dated March 24, 1999.*
10.15 Sublease with Pete's Brewing Company dated November 2, 1998.*
10.16 Sublease with Pete's Brewing Company dated December 1, 1998.*
10.17 Sublease with Information Access Inc. dated Nov. 15, 1998, and amendment dated Feb. 22, 1999.*
10.18 Service Provider Agreement with TBI Imaging dated Nov. 23, 1998 (also form of).+
10.19 Employment Agreement with Leonard B. McCurdy.*
10.20 Employment Agreement with Kevin B. McCurdy.*
10.21 Employment Agreement with Andrew P. Laszlo.*
10.22 Employment Agreement with Howard D. Field.*
10.23 Employment Agreement with Mark R. Searle.*
10.24 Employment Agreement with Randall I. Bresee.*
10.25 Employment Agreement with Andrew J. Aicklen.*
10.26 Sublease with Transmode Consultants Inc./Traxis Inc. dated May 27, 1999.*
21.1 Subsidiaries of Registrant.*
23.1 Consents of Accountants.*
23.2 Consents of Attorneys.*
24.1 Power of Attorney (see page II-5).*
27.1 Financial Data Schedule.*
</TABLE>
- --------
*Previously Filed
**To be filed by amendment
+Confidential Treatment Requested
(b)Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Other schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
Item 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 1 to the Registration Statement on Form S-1
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Palo Alto, State of California on June 24, 1999.
/s/ Randall I. Bresee
By: _________________________________
Randall I. Bresee
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Leonard B. McCurdy Chief Executive Officer, June 24, 1999
______________________________________ Chairman and Director
Leonard B. McCurdy
* Kevin B. McCurdy Executive Vice President June 24, 1999
______________________________________ and Director
Kevin B. McCurdy
/s/ Randall I. Bresee Chief Financial Officer June 24, 1999
______________________________________
Randall I. Bresee
* Duncan Fortier Director June 24, 1999
______________________________________
Duncan Fortier
* John Moragne Director June 24, 1999
______________________________________
John Moragne
* Philip Sanderson Director June 24, 1999
______________________________________
Philip Sanderson
* James Marver Director June 24, 1999
______________________________________
James Marver
*By: /s/ Randall I. Bresee
______________________________________
Randall I. Bresee
(Attorney-In-Fact)
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement dated , 1999.**
3.1 Certificate of Incorporation of Registrant as currently in effect.*
3.2 Form of Certificate of Incorporation of Registrant to be filed
immediately following the closing of the offering made under this
Registration Statement.**
3.3 Articles of Amalgamation of Jutvision Canada, Inc. (bamboo.com) dated
January 1, 1999.*
3.4 Articles of Amendment of Jutvision Canada, Inc. (bamboo.com) dated
April 23, 1999.*
3.5 Articles of Amendment of bamboo.com Canada, Inc. dated June 7, 1999.*
3.6 Amended and Restated Conversion and Pairing Agreement with bamboo.com
Canada, Inc. dated as of June 7, 1999.*
3.7 Bylaws of Registrant as currently in effect.*
3.8 Form of Bylaws of Registrant to be adopted immediately following the
closing of the offering made under this Registration Statement.**
3.9 Series C Redeemable Preferred Stock Purchase Agreement dated as of
June 11, 1999.*
4.1 Specimen Common Stock Certificate.**
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.**
9.1 Share Contribution, Subscription, Right of First Refusal and Voting
Agreement Dated Jan. 1, 1999.*
10.1 Form of Indemnification Agreement between the Registrant and each of
its directors and officers.*
10.2 1998 Employee, Director and Consultant Stock Plan and the form
agreement thereunder, as currently in effect.*
10.3 Form of Amended and Restated 1998 Employee, Director and Consultant
Stock Plan and the form agreement thereunder to be adopted immediately
upon the effectiveness of the Registration Statement.*
10.4 Form of 1999 Employee Stock Purchase Plan and form of agreements
thereunder.*
10.5 Investors' Rights Agreement dated as of March 12, 1999 among
bamboo.com and certain investors.*
10.6 Joint Services Agreement with RealSelect, Inc. dated as of Nov. 11,
1998, as amended June 11, 1999.+
10.7 Distribution Agreement with Microsoft Corporation dated as of March
16, 1999.+
10.8 Distribution Agreement with HomeSeekers.com, Inc. dated as of Nov. 20,
1998.+
10.9 Distribution Agreement with Homes.com, a division of PCL Media
Limited, dated as of May 10, 1999.+
10.10 Form of Distribution Agreement with multiple listing services.*
10.11 Form of bamboo.com Approved Web Pro Agreement.*
10.12 Form of Distribution and Co-marketing Agreement with real estate
brokerage companies.*
10.13 Line of Credit with Silicon Valley Bank dated April 16, 1999.*
10.14 Master lease agreement with Silicon Valley Bank dated March 24, 1999.*
10.15 Sublease with Pete's Brewing Company dated November 2, 1998.*
10.16 Sublease with Pete's Brewing Company dated December 1, 1998.*
10.17 Sublease with Information Access Inc. dated Nov. 15, 1998, and
amendment dated Feb. 22, 1999.*
10.18 Service Provider Agreement with TBI Imaging dated Nov. 23, 1998 (also
form of).+
</TABLE>
<PAGE>
<TABLE>
<C> <S>
10.19 Employment Agreement with Leonard B. McCurdy.*
10.20 Employment Agreement with Kevin B. McCurdy.*
10.21 Employment Agreement with Andrew P. Laszlo.*
10.22 Employment Agreement with Howard D. Field.*
10.23 Employment Agreement with Mark R. Searle.*
10.24 Employment Agreement with Randall I. Bresee.*
10.25 Employment Agreement with Andrew J. Aicklen.*
10.26 Sublease with Transmode Consultants Inc./Traxis Inc. dated May 27,
1999.*
21.1 Subsidiaries of Registrant.*
23.1 Consents of Accountants.*
23.2 Consents of Attorneys.*
24.1 Power of Attorney (see page II-5).*
27.1 Financial Data Schedule.*
</TABLE>
- --------
*Previously Filed
**To be filed by amendment
+Confidential Treatment Requested
(b)Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Other schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
<PAGE>
EXHIBIT 10.6
[Execution Draft]
JOINT SERVICES AGREEMENT
------------------------
THIS JOINT SERVICES AGREEMENT (the "Agreement") is entered into as of
November 11, 1998 (the "Effective Date"), between Jutvision Corporation, a
Delaware corporation ("Jutvision"), and RealSelect, Inc., a Delaware corporation
("RealSelect").
BACKGROUND
A. Jutvision uses the Jutvision Technology (as defined below) and
provides the Production Services (as defined below).
B. RealSelect operates the RealSelect Sites (as defined below).
C. Jutvision desires to be the exclusive provider of Virtual Tour
Images (as defined below) and Production Services for the RealSelect Sites.
D. RealSelect desires to distribute the Production Services.
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
-----------
The following terms shall have the meanings set forth below when used in this
Agreement. All Section references refer to Sections of this Agreement unless
otherwise stated.
1.1 "Basic Package" means the services provided to Brokers by or on
-------------
behalf of Jutvision consisting of (i) capturing up to four images of a
designated Residential Property, (ii) processing these images to create one
Jutvision Image of each image captured and (iii) posting the Jutvision Images to
a Web server.
1.2 "Broker" means any licensed realtor, real estate broker, real estate
------
agent or any other agent or representative acting in a similar capacity, whether
an individual or organized entity, representing a seller of a Residential
Property.
1.3 "Combination Package" means a Basic Package or Upgrade Package sold
-------------------
to a RealSelect Customer that includes posting of the Jutvision Images to both
(a) a RealSelect Site and (b) a third-party Web site not owned or controlled by
RealSelect.
1.4 "Data Content Provider" means a Residential Property MLS or
---------------------
Residential Property listing agent that provides data to a RealSelect Site.
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
1.5 "Development Seminars" means any seminar or meeting that RealSelect
--------------------
or its sales representatives conducts with Brokers regarding the development of
Web sites.
1.6 "HTML Page" means a document that displays text and graphical images
---------
accessible on the Internet.
1.7 "Internet Marketing" means a grouping of HTML Pages on a RealSelect
------------------
Site that describes the benefits of the various advertising opportunities for
third parties on the RealSelect Sites.
1.8 "Jutvision for Java Software" means (i) Jutvision's proprietary
---------------------------
"Jutvision for Java" software existing as of the Effective Date and (ii) all
versions thereof and upgrades, modifications and enhancements thereto
subsequently developed by Jutvision during the JJS License Period (as defined
below) that, taking into account the limited purpose for which users of the
RealSelect Sites access and view the Jutvision Images, would reasonably enable,
enhance or improve such users' ability to view Jutvision Images that are posted
to the RealSelect Sites during the Term or JJS License Period (as defined
below).
1.9 "Jutvision Image" means an electronic image of a Residential
---------------
Property produced by or on behalf of Jutvision for the sole purpose of
fulfilling Jutvision's obligations under this Agreement.
1.10 "Jutvision Technology" means software and hardware used to capture,
--------------------
process and view Jutvision Images.
1.11 "JV Image Page" means any page on a RealSelect Site that displays
-------------
any Jutvision Image.
1.12 "Net Revenues" means the gross revenues received by Jutvision from
------------
Brokers for sales of the [*] less [*]
1.13 "Operational Member" means any individual or entity with which
------------------
Jutvision has entered into an agreement to capture, or any employee of Jutvision
designated to capture, images at Residential Property as part of the Service
Provider Network.
1.14 "Production Services" means the services provided by or on behalf of
-------------------
Jutvision in preparing the Basic Packages, Upgrade Packages and Combination
Packages.
1.15 "Production Services Page" means an HTML Page on a RealSelect Site
------------------------
created by Jutvision and approved by RealSelect, which approval RealSelect will
not unreasonably withhold or delay, that highlights the advantages of using the
Production Services and contains a detailed
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-2-
<PAGE>
description of the Production Services, an electronic order form permitting
submission of orders for Production Services directly to a Web server operated
by or for the benefit of Jutvision, and a Jutvision logo, of reasonable size and
prominence, located above the fold.
1.16 "RealSelect Customer" means any Broker whose order is received via the RS
-------------------
Sales Line or via an electronic order form originating from a Production
Services Page, in each case with respect to those orders so received.
1.17 "RealSelect Sites" means the collection of English language HTML Pages
----------------
residing on servers controlled or owned by RealSelect or an entity majority
owned or controlled by RealSelect that display Residential Property listings,
which are http://www.realtor.com and http://www.homebuilder.com.
----------------------
1.18 "Residential Property" means any piece of residential real estate within
--------------------
the Territory, including without limitation new homes, offered for sale or
resale.
1.19 "RS Sales Line" means the telephone and facsimile lines that Jutvision
-------------
establishes, maintains and operates solely to receive orders for Production
Services from Brokers pursuant to this Agreement and that are designated by one
or more toll-free numbers included in promotional information on the RealSelect
Sites and in subscription forms and marketing materials RealSelect and its sales
representatives provide to Brokers pursuant to Section 3.1(b) of this Agreement.
1.20 "Service Provider Network" means the network of members throughout the
------------------------
Territory with whom Jutvision has entered into agreements to capture images at
designated sites on Jutvision's behalf.
1.21 "Sponsorship Fee" means the monthly fee Jutvision will pay to RealSelect
---------------
during the Initial Term according to the schedule set forth in Section 4.1.
1.22 "Term" means the Initial Term of this Agreement and the Renewal Term, if
----
any, as set forth in Section 6.
1.23 "Territory" means the United States and its possessions.
---------
1.24 "Transaction Fee" means the quarterly fee Jutvision will pay to
---------------
RealSelect during the Term based on sales [*] as provided in Section 4.2.
1.25 "Upgrade Package" means an addition to a Basic Package consisting of (i)
---------------
capturing one additional image at the same designated Residential Property of
the Basic Package
____________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-3-
<PAGE>
for such Residential Property, (ii) processing this image to create one
additional Jutvision Image for the image captured and (iii) posting the
Jutvision Image to a Web server.
1.26 "Virtual Tour Image" means an electronic image, including without
------------------
limitation 360(degrees), three dimensional, virtual reality and virtual tour
images.
2. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
---------------------------------------------
2.1 Sales and Billing. Jutvision will be responsible for receiving and
-----------------
fulfilling orders for Basic Packages, Upgrade Packages and Combination Packages.
Jutvision will establish, operate and maintain at its expense the RS Sales Line
and will process electronic orders for Basic Packages, Upgrade Packages and
Combination Packages received via order forms on the Production Services Pages.
In addition, Jutvision will assume all costs and responsibility for invoicing
and collecting revenues for all sales of Basic Packages, Upgrade Packages and
Combination Packages.
2.2 Pricing. As of the Effective Date, excluding any applicable taxes,
-------
RealSelect Customers will be charged [*] (the "RealSelect Customer Prices").
Jutvision will [*] of the Agreement. However, Jutvision may [*]; provided, that
after the [*], which RealSelect will not withhold or delay unreasonably. Price
changes will not take effect until at least [*] after Jutvision declares [*]
with the approval of RealSelect. The parties contemplate that Jutvision will
offer volume-based pricing during the Term in certain circumstances, and the
parties agree to negotiate in good faith regarding the terms of any volume-based
pricing proposed by either party. In the event either party identifies an
opportunity for volume-based pricing, Jutvision will use commercially reasonable
efforts to [*], and RealSelect shall use commercially reasonable efforts to
respond to such proposal [*].
2.3 Support. Jutvision will establish and maintain a "mailto" link on
-------
each Production Services Page that RealSelect Customers may use to send support-
related e-mail messages to Jutvision. Jutvision will also establish and
maintain a toll-free support telephone line RealSelect Customers may call with
support questions. The hours of operation for the support telephone line and
for monitoring and responding to support-related e-mail messages will be
business days (excluding bank holidays) from 9:00 am to 5:00 pm Eastern time.
Within thirty (30) days of the end of each calendar quarter, Jutvision will
provide RealSelect with a quarterly written report providing a summary of any
significant email and telephone support issues arising during such quarter,
including the date each issue arose, the date of each corresponding response and
the resolution. In addition, Jutvision agrees to use commercially reasonable
efforts to respond to all support-related emails and phone calls [*].
2.4 Image Capturing, Processing and Posting. Jutvision will have sole
---------------------------------------
responsibility for, and will bear all costs associated with, capturing images at
designated Residential Properties,
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-4-
<PAGE>
processing captured images and posting Jutvision Images to the RealSelect Sites.
Jutvision will use commercially reasonable efforts to process and post each
Jutvision Image on behalf of all RealSelect Customers [*] after capture of the
images, in each case to the extent Jutvision has the right to do so, provided
that such posting is not delayed by factors attributable to RealSelect.
Notwithstanding any other provisions of this Agreement, (i) in the event that
within a given Major Metropolitan Area (as defined in Section 2.6(a) of this
Agreement) within a given month [*] or more of the Jutvision Images are posted
to the RealSelect Sites more than [*] after capture due to no fault of
RealSelect, then, subject to a [*], RealSelect may [*] and (ii) if Jutvision
Images are not posted [*] after the captures of the Jutvision orders, provided
that posting is not delayed by factors attributable to RealSelect, then the
RealSelect Customer will not be charged. In addition, Jutvision will use
commercially reasonable efforts to have enough customer support to take all
orders for Production Services from RealSelect Customers at the time of that
RealSelect Customer's first attempt to place such an order. Jutvision will
provide a good faith report [*] days of the end of each month listing the number
of orders for each Major Metropolitan Area and the number of Jutvision Image
orders posted to a RealSelect Site [*] after capture.
2.5 Quality of Technology.
---------------------
(a) Jutvision agrees to use commercially reasonable efforts
during the Initial Term to keep the Jutvision Technology updated and compatible
with the systems and components forming the RealSelect Sites. During the Initial
Term, Jutvision will further use commercially reasonable efforts to enhance the
Jutvision Technology, (i) to maintain the compatibility of such Jutvision
Technology with new releases of major operating systems and web browsers of
Microsoft, Netscape and AOL, and their successors or assigns; (ii) subject to
Section 2.5(b), to maintain the capability of a majority of users of the
RealSelect Sites to view the Jutvision Images; and (iii) to keep the Jutvision
Technology competitive with the features and functionalities of the viewing
technology that third parties offer. If RealSelect, acting in good faith,
determines that [*] of the Brokers in the Territory that use the RealSelect
Sites or substantially similar sites to post Residential Property listings
demand a specific feature or functionality in viewing technology not then
available in the Jutvision Technology, RealSelect may, at its option, send
Jutvision a written request that Jutvision develop and implement such new
feature or functionality. Jutvision will then use commercially reasonable
efforts to create, [*] an appropriate project plan regarding the development and
implementation of such new feature or functionality and will use commercially
reasonable efforts to implement such project plan [*].
(b) During the Initial Term, RealSelect will use commercially
reasonable efforts to enhance the RealSelect
__________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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<PAGE>
Sites in order to maintain the compatibility of the RealSelect Sites with new
releases of web browsers of Microsoft, Netscape and AOL, and their successors or
assigns.
2.6 Service Provider Network.
------------------------
(a) Jutvision will establish and maintain a Service Provider
Network to capture images at designated Residential Properties on Jutvision's
behalf. Jutvision will exercise reasonable efforts to establish an Operational
Member in a [*]. During each calendar month following [*], Jutvision will
exercise reasonable efforts to establish an Operational Member [*]. "Major
Metropolitan Area" means a greater metropolitan area in the list set forth in
Exhibit A hereto. The parties agree that [*] Major Metropolitan Areas to be
implemented are those listed in Exhibit E to this Agreement. The parties agree
to work together in good faith to develop a plan under which Jutvision will
provide the Production Services in rural markets not included in Exhibit A.
(b) In the event Jutvision fails to establish an Operational
Member in a minimum of [*], notwithstanding Section 2.7 or any other provision
to the contrary herein, [*], whereby, during the [*] will provide interim
services reasonably comparable to the Production Services in the Shortfall
Areas. Upon [*], and provided that Jutvision has established an Operational
Member in such Shortfall Areas, RealSelect agrees immediately to cease using [*]
and use Jutvision Production Services. In the event that, [*] Jutvision does not
have Operational Members in the Shortfall Areas, then the parties agree that
RealSelect may [*] to provide services reasonably comparable to the Production
Services.
(c) Jutvision will have sole responsibility for training,
monitoring and compensating Operational Members, and Jutvision will require each
Operational Member to be adequately bonded or insured prior to becoming an
Operational Member and during that Operational Member's participation in the
Service Provider Network.
2.7 Exclusivity. Except as specifically provided in Sections 2.4 and
-----------
2.6(b), and subject to RealSelect's existing agreements pertaining to the
provision of Virtual Tour Images or technology or services equivalent to the
Production Services with respect to Homebuilder.com (the "Homebuilder.com
Agreements"), during the Term, RealSelect will not directly or indirectly (i)
promote or market itself or any third party as a provider, for Residential
Property listings in the Territory posted to a Real Select Site, of Virtual Tour
Images or technology or services equivalent to the Production Services for such
Virtual Tour Images; (ii) provide the services equivalent to the Production
Services for Residential Property listings in the Territory on RealSelect Sites;
(iii) use the services equivalent to the Production Services of, or enter into
any arrangement under which services equivalent to the Production Services will
be provided by, any third party with respect to Virtual Tour Images for
Residential Property listings in the Territory on RealSelect Sites; or (iv) take
any other action inconsistent with the parties' understanding
____________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-6-
<PAGE>
hereunder that Jutvision will act as the exclusive provider of Virtual Tour
Images, and Production Services therefor, for Residential Property listings in
the Territory on RealSelect Sites; provided, however, that, upon Jutvision's
entry into a market covered by any Homebuilder.com Agreement, RealSelect will
use commercially reasonable efforts promptly to terminate such Homebuilder.com
Agreement. Notwithstanding the foregoing, if a Data Content Provider posts data
to any RealSelect Site containing any unsolicited features or functionalities
imbedded in such posting that are competitive with a Jutvision Virtual Tour
Image, such posting shall not constitute a breach of this Agreement.
3. MARKETING AND PROMOTION
-----------------------
3.1 RealSelect Obligations. RealSelect agrees to market, promote and
----------------------
facilitate sales of the Production Services as follows:
(a) RealSelect Sites. RealSelect agrees to market and promote the
----------------
Production Services on each of the RealSelect Sites, and to do so in accordance
with the branding requirements set forth in Section 5.3. Such marketing and
promotion will include, without limitation, inclusion of one or more Production
Services Pages in the "Internet Marketing" sections of each of the RealSelect
Sites, or such similar sections as RealSelect creates from time to time.
RealSelect may procure and display advertisements on the Production Services
Pages, and any JV Image Pages, running on a server owned, operated or controlled
by or for RealSelect without the approval of Jutvision and will retain all
revenues derived from such advertisement placements; provided, however, that
RealSelect will not display any advertisements of competitors of Jutvision
listed on Exhibit D hereto on any RealSelect Site without the prior approval of
Jutvision. In addition, Jutvision may, in its sole discretion, update or revise
the list of competitors on Exhibit D hereto by providing written notice to
RealSelect once in every twelve (12) month period from the anniversary date of
this Agreement; provided, however, that in no event will Jutvision be able to
list more than [*].
(b) Development Seminars and Trade Shows. RealSelect will at its
------------------------------------
sole discretion invite Jutvision to speak at Development Seminars RealSelect
conducts during the Term. In addition, RealSelect or its sales representatives
will use commercially reasonable efforts to distribute to Brokers at Development
Seminars subscription forms and marketing materials created and paid for
(including, but not limited to, printing and delivery expenses) by Jutvision and
approved by RealSelect that promote the Production Services. In addition, to the
extent not prohibited by third-party agreements, RealSelect will at its sole
discretion permit Jutvision to distribute subscription forms and marketing
materials created by Jutvision that promote the Production Services at the
RealSelect booth. The forms and materials distributed at Development Seminars
and trade shows will, without limitation, (i) describe and highlight the
advantages of the Production Services; (ii) designate the Production Services in
accordance with
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-7-
<PAGE>
the branding requirements set forth in Section 5.3; (iii) provide the
address(es) of Production Services Pages on each of the RealSelect Sites; and
(iv) provide the toll-free number(s) and hours of operation for the RS Sales
Line. RealSelect will promptly forward to Jutvision via the RS Sales Line all
orders for, and information requests regarding, the Production Services it
receives directly from Brokers. All subscription forms that RealSelect sales
representatives provide to Brokers in Development Seminars will include a unique
sales representative number provided by RealSelect which will be used to track
commissions for each RealSelect sales representative.
(c) RealSelect shall cooperate with Jutvision in the performance of
Jutvision's obligations under this Agreement. Jutvision shall cooperate with
RealSelect in the performance of RealSelect's obligations under this Agreement.
3.2 Jutvision Obligations. Jutvision will be responsible for creating
---------------------
(i) the Production Services Pages, including without limitation the electronic
order form permitting submission of orders for Production Services directly to a
server operated by Jutvision and (ii) the marketing materials described in
Sections 3.1(a)(iv) and 3.1(b). Jutvision will have the right to use the
RealSelect Marks (as defined in Section 5.4(b)) in accordance with the identity
standards RealSelect agrees to with the National Association of Realtors
("NAR"). During the Term, Jutvision agrees to use commercially reasonable
efforts to give RealSelect preferred vendor status in Jutvision's marketing
materials and other direct sales efforts, whether printed, oral or on the
Internet, by listing the RealSelect Sites [*] In addition, Jutvision understands
and agrees that it will not list the name of any of the RealSelect Sites [*]. In
clarification of the foregoing, no brochure or other marketing material, if
unfolded and photocopied, may display the name of any of the RealSelect Sites on
[*] comparable to the RealSelect Sites. In addition, Jutvision will not display
the name of any of the RealSelect Sites on [*] comparable to the RealSelect
Sites.
3.3 Additional Obligations. The parties will, from time to time, use
----------------------
reasonable efforts to cooperate in joint marketing efforts for the Production
Services on such terms and conditions as are mutually agreed. Each party will
assign a project manager to act as the primary liaison with respect to the
relationship provided for hereunder, and all discussions between the parties
with respect to the respective performance of obligations hereunder will be
conducted by these project managers or their designees.
4. FEES; WARRANTS
--------------
4.1 Sponsorship Fees. During the Initial Term, subject to Section 11.8,
----------------
Jutvision will pay to RealSelect [*] Sponsorship Fees as follows:
(a) During the first year of the Initial Term, Jutvision will pay
the following amounts according to the following schedule:
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-8-
<PAGE>
[*]
(b) During the second year of the Initial Term, Jutvision will make
[*]
(c) During the third year of the Initial Term, Jutvision will make [*]
"Month 1" of the first year of the Initial Term means the first calendar month
beginning immediately following the calendar month in which the RealSelect Sites
become fully ready to receive postings of Jutvision Images, but in no event
shall Month 1 be prior to February 1999. When RealSelect determines that it is
ready to receive Jutvision postings, RealSelect shall send written notice to
Jutvision confirming the day of "Month 1". Except for the payment due on the
Effective Date, Jutvision will make all payments of Sponsorship Fees net thirty
(30) days from the end of the month for which such payment is due.
4.2 Transaction Fees for Initial Term. During the Initial Term, Jutvision
---------------------------------
will pay RealSelect quarterly Transaction Fees as follows:
(a) With respect to all Production Services sold by Jutvision to [*]
for Jutvision Images of Residential Property listings posted to [*] Jutvision
will pay to RealSelect for each calendar quarter (i) the [*] for each [*] so
sold to such [*] during the quarter [*] from sales of [*] to such [*] during the
quarter and (ii) the [*] for each [*] so sold to [*] during the quarter [*] from
sales to such [*] of [*] during the quarter.
(b) With respect to all Production Services sold by Jutvision to
Brokers that are [*] for Jutvision Images of Residential Property listings,
Jutvision will pay to RealSelect for each calendar quarter (i) for Residential
Property listings [*], the [*] for each [*] so sold to such [*] during the
quarter [*] from sales of [*] to such [*] during the quarter and (ii) for
Residential Property listings [*], the [*] for each [*] so sold to such [*]
during the quarter [*] from sales of [*] to such [*] during the quarter.
(c) With respect to all Production Services sold by Jutvision to [*]
for Jutvision Images of Residential Property listings [*], Jutvision will pay to
RealSelect for each calendar quarter (i) the [*] for each [*] so sold to such
[*] during the quarter [*] from sales of [*] to such [*] during the quarter and
(ii) the [*] for each [*] so sold to such [*] during the quarter [*] from sales
of [*] to such [*] during the quarter.
(d) With respect to all [*] sold by Jutvision to a [*] for Jutvision
Images of Residential Property listings [*], for each calendar quarter,
Jutvision will pay RealSelect (x) an amount in accordance with Section 4.2(a)
with respect to [*] received for Jutvision Images of Residential Property
listings [*] received for Jutvision Images of Residential Property listings [*].
In clarification of the preceding sentence, and as hypothetical examples only,
(i) if Jutvision
__________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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<PAGE>
sells a [*] to post Jutvision Images to Realtor.com and [*] for $150, RealSelect
will receive [*], whichever [*], [*]; (ii) if Jutvision sells a [*] to post
Jutvision Images to Realtor.com and [*] for $180, RealSelect will receive [*];
and (iii) if Jutvision sells a [*] to post Jutvision Images to Realtor.com and
[*] for $200, RealSelect will receive [*]
(e) No Transaction Fees will be due with respect to any Production
Services Jutvision and RealSelect mutually agree in writing to distribute free
of charge on a promotional basis.
Calculation of quarterly Transaction Fees will commence immediately for the
calendar quarter in which the Effective Date occurs. Jutvision will make all
payments of Transaction Fees net thirty (30) days from the end of each calendar
quarter. With each quarterly payment, Jutvision will provide a report stating
the number of Basic Packages, Upgrade Packages and Combination Packages sold
during the quarter and providing a calculation of the Transaction Fees payable.
4.3 Transaction Fees for Renewal Term. Upon commencement of the Renewal
---------------------------------
Term (as defined below), if any, the amount and nature of Transaction Fees to be
paid during the Renewal Term will be the greater of the following:
(a) If, during the third year of the Initial Term, Jutvision sells at
least an aggregate of [*], Upgrade Packages and/or Combination Packages to
RealSelect Customers, Jutvision will pay RealSelect the quarterly Transaction
Fees set forth in Section 4.2 during the Renewal Term, or
(b) The amounts equal to the [*]; provided however, if there are no
other such third party Transaction Fees or such Transaction Fees are zero or
less, then the parties shall do as follows. The parties agree to negotiate in
good faith regarding the amount and nature of Transaction Fees to be paid during
the Renewal Term. If the parties fail to reach an agreement within thirty (30)
days following the commencement of the Renewal Term with respect to such
Transaction Fees, the amount and nature of the Transaction Fees to be paid
during the Renewal Term will be settled by binding arbitration in Los Angeles,
California under the commercial arbitration rules (the "Rules") of the American
Arbitration Association ("AAA"). Within ten (10) days after such thirty (30) day
negotiation period has lapsed, Jutvision and RealSelect shall each appoint one
independent arbitrator, and within twenty (20) days thereafter, the two
arbitrators shall appoint a third arbitrator. If the two cannot agree upon a
third arbitrator, the AAA shall appoint a third. The arbitration hearing shall
be commenced within thirty (30) days of the third arbitrator's appointment. The
Transaction Fees established by the arbitrators will be applicable retroactively
to the start of the Renewal Term and remain in effect for the duration of such
Renewal Term.
_________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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<PAGE>
4.4 Inspection of Records. RealSelect will have the right, at its own
---------------------
expense and not more than once in any twelve (12) month period, to authorize an
independent auditor reasonably acceptable to both parties to inspect those
accounting records of Jutvision necessary to verify the accuracy of Transaction
Fees paid by Jutvision under the terms of this Agreement, provided that such
independent auditor has executed a confidentiality agreement with respect to
such records that is reasonably acceptable to Jutvision. Such inspections will
take place during Jutvision's normal business hours, upon not less than twenty
(20) days' prior written to Jutvision and on a date mutually agreed upon by the
parties. In the event any such audit establishes an underpayment of Transaction
Fees, Jutvision shall pay the amount of the deficit within thirty (30) days of
written notification by RealSelect of such deficiency. In the event such audit
identifies an overpayment of Transaction Fees, at the option of RealSelect, (i)
such overpayment shall be deducted from future Transaction Fees, or (ii)
RealSelect shall remit payment of the overpayment due Vendor within thirty (30)
days of written notification from Jutvision. If an audit establishes an
underpayment of commissions greater than five percent (5%) of the total
Transaction Fees due and payable to RealSelect for the period at issue,
Jutvision shall pay for the costs and expenses of such audit.
4.5 Warrant. Within thirty (30) days following the Effective Date,
-------
Jutvision will issue to RealSelect a warrant granting RealSelect the right,
[*], to purchase, at a price per share equal to [*], an amount of shares of
Jutvision common stock equal to [*], calculated as of the Effective Date, all as
set forth in the form of warrant attached hereto as Exhibit B. Jutvision will
permit RealSelect to inspect documentation reasonably sufficient to demonstrate
that the number of shares of Jutvision common stock and the price per share set
forth in such warrant are consistent with the number and price described this
Section 4.5.
5. PROPRIETARY RIGHTS
------------------
5.1 Jutvision for Java Software. Jutvision hereby grants to RealSelect
---------------------------
a nonexclusive, worldwide, royalty-free license, commencing on the Effective
Date and extending for a period of [*] (the "JJS License Period"), to use the
Jutvision for Java Software, in object code only, to display Jutvision Images on
the RealSelect Sites. The foregoing license is subject to all of the terms and
conditions set forth in the Jutvision for Java License Agreement attached hereto
as Exhibit C; provided that, in the event of any inconsistency between such
Jutvision for Java License Agreement and this Agreement, this Agreement will
govern. The foregoing license will expire at the end of the JJS License Period,
and upon such expiration RealSelect will use commercially reasonable efforts to
cease all use of the Jutvision for Java Software and will use commercially
reasonable efforts to purge all Jutvision for Java Software from its servers.
5.2 Jutvision Images.
----------------
(a) All Jutvision Images, whether or not produced for RealSelect
Customers and whether or not posted to either RealSelect Site, are, and at all
times will remain, the
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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<PAGE>
exclusive property of Jutvision, and no provision of this Agreement implies any
transfer to RealSelect of any ownership interest in any Jutvision Image.
(b) Jutvision hereby grants to RealSelect a nonexclusive,
worldwide, royalty-free, nontransferable license, during the JJS License Period,
(i) to display, perform and reproduce Jutvision Images on the RealSelect Sites
solely for the purposes contemplated in this Agreement and (ii) to distribute
Jutvision Images solely to users of the RealSelect Sites via the browsers of
such users for the purposes contemplated in this Agreement. Other than as agreed
to in this Agreement, RealSelect will not reproduce, distribute, modify, edit,
or prepare derivative works from the Jutvision Images without the prior written
permission of Jutvision. The foregoing license does not include any right to
grant or authorize sublicenses. The foregoing license will expire at the end of
the JJS License Period, and upon such expiration RealSelect will use
commercially reasonable efforts to cease all use of the Jutvision Images and
will use commercially reasonable efforts to purge all Jutvision Images from its
servers.
5.3 Branding; Marketing and Advertising Approval.
--------------------------------------------
(a) Subject to Section 5.4, RealSelect will designate a private
brand under which RealSelect and Jutvision will market, promote and sell the
Production Services pursuant to Sections 2.1, 3.1(a) and 3.1(b) (the "Private
Brand"), provided, however, that RealSelect may elect, in its sole discretion,
in one or more circumstances, for the Production Services to be marketed,
promoted or sold under the Jutvision brand alone. Subject to the exception set
forth in the preceding sentence, the following combination logo must appear on
all Production Services Pages and all subscription forms and marketing material
that RealSelect hands out pursuant to Section 3.1(b): "[Private Brand] powered
by Jutvision(R)" (the "Private Brand Combination Logo"). The Jutvision name must
be of reasonable size and prominence in each use of the Private Brand
Combination Logo, and the parties will mutually approve the final form of the
Private Brand Combination Logo and any subsequent variation thereof. In
addition, the following legend must be included in the HTML Page or Pages on
each of the RealSelect Sites in which RealSelect provides general information
about trademarks and other intellectual property appearing on the sites:
"Jutvision Corporation, located at www.jutvision.com, is the exclusive provider
of virtual tours for [Private Brand]. JUTVISION and the Jutvision logo are
registered trademarks and service marks of Jutvision Corporation."
(b) Each party will have the right to approve all Web pages and
other materials produced by the other party that display the Private Brand or
that are otherwise produced pursuant to Sections 3.1(a) and 3.1(b), and
Jutvision will have the right to approve any use by RealSelect of the Jutvision
brand alone pursuant to the first sentence of Section 5.3(a). A party will
approve or object to such pages or material submitted to it within ten (10) days
after receiving such submission. A failure to respond during such ten (10) day
period will be deemed an approval of such pages or material.
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5.4 Trademarks.
----------
(a) Jutvision Marks.
---------------
(i) Jutvision owns and at all times will continue to own
the trademarks, service marks and/or trade names JUTVISION and the Jutvision
logo (the "Jutvision Marks"). RealSelect will not take any actions inconsistent
with Jutvision's ownership rights.
(ii) Subject to the restrictions set forth herein,
Jutvision hereby grants RealSelect a nonexclusive, worldwide, royalty-free,
fully paid up, nontransferable right to use the Jutvision Marks, during the term
of this Agreement, solely in connection with promotion and marketing of the
Production Services as provided in Section 3. RealSelect's use of the Jutvision
Marks will not create in RealSelect any right, title or interest therein or
thereto. All use by RealSelect of the Jutvision Marks will inure to the
exclusive benefit of Jutvision. At Jutvision's reasonable request, RealSelect
will assist Jutvision with the protection and maintenance of the Jutvision
Marks. RealSelect may only use the Jutvision Marks as expressly permitted
herein. RealSelect agrees to use the Jutvision Marks in a manner commensurate
with the style, appearance and quality of Jutvision's services and/or products
bearing such marks.
(b) RealSelect Marks.
----------------
(i) RealSelect owns and at all times will continue to own
the trademarks, service marks and/or trade names of the Private Brand,
REALTOR.COM and HOMEBUILDER.COM (the "RealSelect Marks"). Jutvision will not
take any actions inconsistent with RealSelect's ownership rights.
(ii) Subject to the restrictions set forth herein,
RealSelect hereby grants Jutvision a nonexclusive, worldwide, royalty-free,
fully paid up, nontransferable right to use the RealSelect Marks, during the
term of this Agreement, solely in connection with promotion and marketing of the
Production Services as provided in Section 3. Jutvision's use of the RealSelect
Marks will not create in Jutvision any right, title or interest therein or
thereto. All use by Jutvision of the RealSelect Marks will inure to the
exclusive benefit of RealSelect. At RealSelect's reasonable request, Jutvision
will assist RealSelect with the protection and maintenance of the RealSelect
Marks. Jutvision may only use the RealSelect Marks as expressly permitted
herein. Jutvision agrees to use the RealSelect Marks in a manner commensurate
with the style, appearance and quality of RealSelect's services and/or products
bearing such marks.
(c) Combination Mark. The Private Brand Combination Logo provided
----------------
for in Section 5.3(a) constitutes a combination mark incorporating the mark of
each party ("Combination Mark"). Neither party may assert any ownership interest
in the Combination Marks beyond the respective ownership described in Sections
5.4(a) and 5.4(b). Without limiting the generality of the foregoing sentence,
except as expressly permitted in this Agreement, neither party shall use,
license, or apply to register the Combination Mark.
5.5 Limitation on Grant of Rights. Except as expressly provided herein,
-----------------------------
neither party receives any other right or license to the technology or
intellectual property of the other party.
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6. TERM AND TERMINATION
--------------------
6.1 Term. Unless earlier terminated as set forth below, this Agreement
----
will become effective upon the Effective Date and continue for a period of three
(3) years from the first day of Month 1 (as defined in Section 4.1) (the
"Initial Term"). Upon written notice from RealSelect given at least thirty (30)
days prior to expiration of the Initial Term, RealSelect may, in its sole
discretion, renew the Agreement, on a non-exclusive basis, for an additional
period of two (2) years ("Renewal Term"); provided, however, that Jutvision will
have no obligation to pay any Sponsorship Fees during the Renewal Term; and
provided, further, that Transaction Fees to be paid during the Renewal Term will
be determined in accordance with the final paragraph of Section 4.3.
6.2 Rights of First Offer.
---------------------
(a) Upon any termination or expiration of this Agreement, Jutvision
shall have the right of first offer with respect to providing Virtual Tour
Images for postings of Residential Property listings in the Territory on
RealSelect Sites. Jutvision will exercise such right of first offer within
thirty (30) days after notice from RealSelect.
(b) During and after the Term, Jutvision shall have the right of
first offer with respect to providing Virtual Tour Images for postings of
Residential Property listings outside the Territory on RealSelect Sites.
Jutvision will exercise such right of first offer within thirty (30) days after
notice from RealSelect.
6.3 Termination. This Agreement will terminate, without notice, (i)
-----------
upon the institution by or against either party of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of the
party's debts; (ii) upon either party's making an assignment of substantially
all of its assets for the benefit of creditors; (iii) upon either party's
dissolution or cessation of business; or (iv) in the event 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 in writing by the non-breaching party of such breach or failure.
6.4 Effects of Termination. Upon expiration or termination of this
----------------------
Agreement:
(a) Jutvision will cease all use of the RealSelect Marks and the
Combination Marks and will cease creating and distributing the promotional and
marketing materials provided for in Section 3.1(b);
(b) Commensurate with the quality of services provided prior to
such expiration or termination, Jutvision will continue to provide Production
Services and support to third parties who purchased such Production Services
prior to such expiration or termination;
(c) Except as provided in Sections 5.1 and 5.2, RealSelect will
cease all use of the Jutvision Marks, the Combination Marks, the Jutvision
Technology and the Jutvision Images
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and shall use all commercially reasonable efforts to purge all Jutvision
Technology and Jutvision Images from its servers within a commercially
reasonable time frame.
(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
(e) Jutvision will return to RealSelect an electronic copy of all
RealSelect Customers information including but not limited to names, phone and
fax numbers, email address, billing address and shall use commercially
reasonable efforts to remove from its records all such information.
6.5 Survival of Certain Terms. The provisions of Sections 5.1, 5.2,
-------------------------
5.4(a)(i), 5.4(b)(i), 5.4(c), 5.5, 6.2, 6.4, 6.5, 7, 8, 9, 10, 11.2, 11.3, 11.4,
11.5, 11.6, 11.8, 11.9, 11.10, 11.11 and 11.12, and the provisions of Exhibit C
specified therein to survive, 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
---------------
7.1 Definition. "Confidential Information" means any trade secrets,
----------
confidential data or other confidential information relating to or used in the
business of the other party (the "Disclosing Party"), that a party (the
"Receiving Party") may obtain from the Disclosing Party during the Term (the
"Confidential Information"), except as herein provided, and that is marked
"Confidential," "Proprietary" or in a similar manner to indicate its
confidential nature. Confidential Information may also include oral information
disclosed pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and confirmed in writing as
confidential within thirty (30) days after its oral disclosure, which is marked
in a manner to indicate its confidential nature and delivered to the Receiving
Party. The terms of this Agreement and the existence of this Agreement will
constitute Confidential Information.
7.2 General. Subject to Section 11.3, 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. Without limiting the
foregoing, subject to Section 11.3, 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.
7.3 Exceptions. The foregoing restrictions will not apply to
----------
information that (i) is known to the Receiving Party at the time of disclosure
by the disclosing party; (ii) is or becomes publicly known through no wrongful
act of the Receiving Party; (iii) is rightfully received from a third party
without restriction; (iv) is independently developed by the Receiving Party; (v)
has been approved for release by written authorization of the Disclosing Party;
(vi) is not marked or similarly designated as confidential, and is provided for
a purpose or in a manner that reasonably contemplate, or would naturally be
understood to contemplate, disclosure or use by others; and (vii) is disclosed
pursuant to a valid order of any governmental authority provided that the party
intending to make disclosure in such circumstances has given the other party
prompt notice prior
-15-
<PAGE>
to making such disclosure so that such party may seek a protective order or
other appropriate remedy prior to such disclosure.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
8.1 Each party represents and warrants to the other that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation set forth above and
is duly qualified and authorized to do business as a foreign corporation in good
standing in all jurisdictions in which the nature of its assets or business
requires such qualification;
(b) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
(c) its execution, delivery and performance of this Agreement have
been duly and properly authorized by all necessary actions and this Agreement
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms; and
(d) its execution, delivery and performance of this Agreement will
not, with or without the giving of notice or passage of time, or both, conflict
with, or result in a default or loss of rights under, any provision of its
certificate of incorporation or by-laws or any other material agreement or
understanding to which it is a party or by which it or any of its material
properties may be bound.
8.2 RealSelect further represents and warrants that it has entered into,
and will maintain in effect throughout the Term, an agreement with the National
Association of Realtors to be its official Internet site. Jutvision may
immediately terminate the Agreement upon any breach of the foregoing
representation and warranty.
8.3 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE
----------
ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT. SUCH WARRANTIES 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.
9. INDEMNIFICATION
---------------
9.1 Each party (the "Indemnifying Party") will indemnify, defend and
hold harmless the other party and its officers, directors, agents, employees,
successors and permitted assigns (hereinafter collectively the "Indemnified
Party") from and against any and all losses, claims, suits, proceedings,
liabilities, expenses (including reasonable attorneys' fees and expenses),
causes of action, damages and costs (collectively "Claims") arising out of or in
connection with
-16-
<PAGE>
the breach, potential breach or inaccuracy of, or failure to comply with, any of
the representations and warranties contained in Section 8 on the part of the
Indemnifying Party.
9.2 Any Indemnified Party entitled to indemnification under this Section
will give prompt notice to the indemnifying Party of any Claim with respect to
which it seeks indemnification, but the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability except to the
extent that it is actually prejudiced by such delay. The Indemnifying Party
shall assume, at its sole cost and expense, the defense of such Claim with
counsel reasonably satisfactory to the Indemnified Party. The Indemnifying
Party will not be subject to any liability for any settlement made without its
consent. The Indemnifying Party shall not, without consent of the Indemnified
Party, effect any settlement or discharge or consent to the entry of any
judgment, unless such settlement or judgment includes as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
general release from all liability in respect of such claim or litigation.
10. LIMITATION OF LIABILITY; LIQUIDATED DAMAGES
-------------------------------------------
10.1 SUBJECT TO SECTION 10.2, 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 (COLLECTIVELY "CONSEQUENTIAL
DAMAGES").
10.2 IN THE EVENT THAT THIS AGREEMENT IS TERMINATED IN ACCORDANCE WITH
SECTION 6.3 BASED ON A PARTY'S MATERIAL BREACH OF ANY TERM OR CONDITION,
COVENANT, OBLIGATION OR WARRANTY SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE
THAT, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, THE BREACHING PARTY SHALL BE
LIABLE TO THE NON-BREACHING PARTY FOR DAMAGES (THE "LIQUIDATED DAMAGES")
CALCULATED AS FOLLOWS:
(a) IF THE BREACH OCCURS DURING THE TWELVE (12) MONTH PERIOD
IMMEDIATELY FOLLOWING THE EFFECTIVE DATE, [*];
(b) IF THE BREACH OCCURS DURING THE TWELVE (12) MONTH PERIOD
IMMEDIATELY FOLLOWING THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, [*]; OR
__________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-17-
<PAGE>
(c) IF THE BREACH OCCURS ANY TIME FOLLOWING THE SECOND ANNIVERSARY
OF THE EFFECTIVE DATE UNTIL THE END OF THE INITIAL TERM, [*].
THE PARTIES AGREE THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE
APPROXIMATION OF THE HARM EITHER PARTY WOULD SUFFER IN THE EVENT OF A MATERIAL
BREACH BY THE OTHER PARTY RESULTING IN TERMINATION.
11. GENERAL PROVISIONS
------------------
11.1 [*] During the Term, Jutvision agrees (i) that the [*] for Basic
Packages or Upgrade Packages (excluding Combination Packages) will [*] to
Brokers [*] for Basic Packages or Upgrade Packages [*] and (ii) the [*] for
Combination Packages [*] for Basic Packages or Upgrade Packages [*].
11.2 Independent Contractors. The relationship of Jutvision and
-----------------------
RealSelect established by this Agreement is that of independent contractors, and
nothing contained in this Agreement will be construed to (i) give either party
the power to direct and control the day-to-day activities of the other, (ii)
constitute the parties as partners, joint venturers, co-owners or otherwise as
participants in a joint undertaking, or (iii) allow either party to create or
assume any obligation on behalf of the other for any purpose whatsoever. All
financial and other obligations associated with a party's business are the sole
responsibility of that party.
11.3 Press Plans. The parties agree to participate in a joint press
-----------
announcement regarding the relationship entered into hereunder that will take
place on a mutually agreed upon date. The parties shall agree to the form and
content of the joint press release. Either party may issue its own press
release, subject to the other party's prior written approval, not to be
unreasonably withheld, of the content within the release. Each party will
furnish its written acceptance of or objection to any proposed announcement
within forty-eight (48) hours, and any failure to furnish such written
acceptance or objection during such time frame will be deemed an acceptance of
such proposed announcement.
11.4 Governing Law; Jurisdiction; Venue. This Agreement will be governed
----------------------------------
by and construed under the laws of the State of California without reference to
conflict of laws principles. For any disputes arising out of this Agreement, the
parties irrevocably consent to the personal and exclusive jurisdiction of, and
venue in, the state or federal courts within Los Angeles County, California.
11.5 Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding of the parties relating to the subject matter herein and
merges all prior discussions
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-18-
<PAGE>
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 both parties.
11.6 Notices. 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 below or at such other address for which such
party gives notice hereunder. Delivery will be deemed effective three (3) days
after deposit with postal authorities. Either party may change its address for
notice hereunder at any time upon written notice to the other party.
If to RealSelect: General Counsel
RealSelect, Inc.
5655 Lindero Canyon Road
Suite 120
Westlake Village, CA 91362
If to RealSelect after December 1, 1998:
General Counsel
RealSelect, Inc.
225 West Hillcrest Drive
Suite 100
Thousand Oaks, CA 91360
If to Jutvision: Chief Executive Officer
Jutvision Corporation
One Eglinton Avenue East
Suite 620
Toronto, Ontario M4P 3A1
Canada
11.7 Force Majeure. 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.
11.8 Non-Assignability; [*]. Except as expressly provided herein, this
----------------------
Agreement may not be assigned or transferred, nor may any right or obligation
hereunder be assigned or delegated, to a third party by either party without the
prior written consent of the other party hereto. Jutvision may not [*] prior to
the expiration or earlier termination of the [*]. Following the expiration or
earlier termination of [*], Jutvision may [*]. Within ten (10) days following
[*]
___________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-19-
<PAGE>
Jutivision shall provide written notice to RealSelect [*]. In the event of [*],
RealSelect may, within thirty (30) days following the date it receives notice of
[*], or Jutvision may, within thirty (30) days following the date [*], provide
written notice to the other party whereupon [*] and Jutvision will have no
further obligation [*] after the month such notice was received. [*] respect to
Jutvision: (A) the [*], in each case in either a single transaction or multiple
but related transactions, of either (i) the [*] of Jutvision or (ii) [*] of
Jutvision; (B) Jutvision is [*]; or (C) a [*] of the Jutvision [*], either by
[*] or other [*], that results in [*], in each case in [*] of Jutvision and/or a
[*] of the Jutvision [*].
11.9 Modification; Waiver. 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.
11.10 Headings. The headings to the sections and subsections of this
--------
Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
11.11 Severability. In the event that it is determined by a court of
------------
competent jurisdiction as part of a final nonappealable ruling, government
action or binding arbitration, that any provision of this Agreement (or part
thereof) is invalid, illegal, or otherwise unenforceable, such provision will be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement will remain in full force and
effect and bind the parties according to its terms. To the extent any provision
(or part thereof) cannot be enforced in accordance with the stated intentions of
the parties, such provision (or part thereof) will be deemed not to be a part of
this Agreement.
11.12 Counterparts; Facsimile Signatures. 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.
JUTVISION CORPORATION REALSELECT, INC.
By:_________________________ By:_______________________
Title:______________________ Title:____________________
Date:_______________________ Date:_____________________
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-20-
<PAGE>
EXHIBIT A
---------
Major Metropolitan Areas
New York, NY Chicago, IL Los Angeles, CA
Boston, MA Dallas/Ft Worth, TX San Francisco, CA
Philadelphia, PA Detroit, MI Seattle, WA
Baltimore, MD Houston, TX San Diego, CA
Washington, DC Minneapolis/St. Paul, MN Denver, CO
Miami, FL St Louis, MO Oakland, CA
Atlanta, GA Cleveland, OH Long Beach, CA
Hartford, CT Pittsburgh, PA San Jose, CA
Providence, RI Portland, ME Palm/Broward/Dade, FL
Memphis, TN Milwaukee, WI Phoenix, AZ
Nashville, TN Kansas City, MO Portland, OR
New Orleans, LA San Antonio, TX San Bernardino, CA
Tampa/St. Pete, FL Indianapolis, IN Tucson, AZ
Jacksonville, FL Cincinnati, OH Albuquerque, NM
Buffalo. NY Austin, TX Sacramento, CA
Orlando, FL Oklahoma City, OK Fresno, CA
Tallahassee, FL Tulsa, OK El Paso, TX
Raleigh/Dur., NC Columbus, OH Salt Lake City, UT
Rochester, NY Omaha, NB Las Vegas, NV
Fairfield, CT Toledo, OH Naples, FL
Birmingham, AL Wichita, KA
<PAGE>
EXHIBIT B
---------
Warrant
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
STOCK PURCHASE WARRANT
To Purchase Shares of the Common Stock of
[JUTVISION CORPORATION]
THIS CERTIFIES that RealSelect, Inc. (the "Holder") is entitled, upon the
terms and subject to the conditions hereinafter set forth, at any time on or
after the date of this Warrant and on or prior to October ___, 2001, but not
thereafter, to subscribe for and purchase, from [Jutvision Corporation], a
Delaware corporation (the "Company"), ________ shares of Common Stock (the
"Shares") at an exercise price of $4.00 per share.
1. Exercise of Warrant.
-------------------
Unless earlier terminated under Section 7, the purchase rights represented
by this Warrant are exercisable by the Holder, in whole or in part, at any time
after six (6) months from the date hereof and before the close of business on
October ___, 2001 by the surrender of this Warrant and the Notice of Exercise
annexed hereto duly executed at the office of the Company, in _________ (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company), and upon payment of the Exercise Price of the Shares thereby purchased
(by cash or by check or bank draft payable to the order of the Company in an
amount equal to the Exercise Price of the shares thereby purchased); whereupon
the Holder shall be entitled to receive a certificate for the number of Shares
so purchased. The Company agrees that if at the time of the surrender of this
Warrant and purchase of the Shares, the Holder shall be entitled to exercise
this Warrant, the Shares so purchased shall be and be deemed to be issued to
such holder as the record owner of such Shares as of the close of business on
the date on which this Warrant shall have been exercised as aforesaid.
Certificates for Shares purchased hereunder shall be delivered to the
Holder within a reasonable time after the date on which this Warrant shall have
been exercised as aforesaid.
<PAGE>
The Company covenants that all Shares which may be issued upon the exercise
of rights represented by this Warrant will, upon exercise of the rights
represented by this Warrant, be fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
2. No Fractional Shares or Scrip.
-----------------------------
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. With respect to any fraction of a
share called for upon the exercise of this Warrant, an amount equal to such
fraction multiplied by the then current price at which each Share may be
purchased hereunder shall be paid in cash to the Holder.
3. Charges, Taxes and Expenses.
---------------------------
Issuance of certificates for Shares upon the exercise of this Warrant shall
be made without charge to the holder hereof for any issue or transfer tax or
other incidental expense in respect of the issuance of such certificate, all of
which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder.
4. No Rights as Shareholders.
-------------------------
This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company prior to the exercise thereof.
5. Loss, Theft, Destruction or Mutilation of Warrant.
-------------------------------------------------
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor and dated as of such
cancellation, in lieu of this Warrant.
6. Saturdays, Sundays, Holidays, etc.
----------------------------------
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or a Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a legal holiday.
7. Early Termination and Dilution.
------------------------------
7.1 Early Termination on Merger, etc. If at any time the Company proposes
---------------------------------
to merge with or into any other corporation, effect a reorganization, or sell or
convey all or substantially all of its assets to any other entity in a
transaction in which the shareholders of the Company
-2-
<PAGE>
immediately before the transaction own immediately after the transaction less
than a majority of the outstanding voting securities of the surviving entity (or
its parent), then the Company shall give the Holder thirty (30) days written
notice of the proposed effective date of the transaction and, if the Warrant has
not been exercised by the effective date of the transaction, the Warrant shall
terminate.
7.2 Early Termination on Initial Public Offering. If at any time the
--------------------------------------------
Company proposes to sell its Common Stock in a bona fide, firm commitment
underwriting pursuant to a registration statement under the Securities Act of
1933, as amended, then the Company shall give the holder of this Warrant thirty
(30) days written notice of the proposed initial filing date of such
registration statement and if the holder of the Warrant has not given notice of
exercise by the initial filing date of such registration statement, the Warrant
shall terminate. If the holder of the Warrant has given timely notice of
exercise in connection with an initial public offering, the exercise of the
Warrant pursuant to such notice shall be effective as of the effective date of
such registration statement.
7.3 Reclassification, etc. If the Company at any time shall, by
----------------------
subdivision, combination or reclassification of securities or otherwise, change
any of the securities to which purchase rights under this Warrant exist into the
same or a different number of securities of any class or classes, this Warrant
shall thereafter be to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities which
were subject to the purchase rights under this Warrant immediately prior to such
subdivision, combination, reclassification or other change. If the Shares are
subdivided or combined into a greater or smaller number of Shares, the Exercise
Price under this Warrant shall be proportionately reduced in case of subdivision
of shares or proportionately increased in the case of combination of shares, in
both cases by the ratio which the total number of Shares to be outstanding
immediately after such event bears to the total number of Shares outstanding
immediately prior to such event.
7.4 Breach of the Joint Services Agreement. If at any time the Holder
--------------------------------------
materially breaches the Joint Services Agreement dated _____ between the Holder
and the Company, the Company may notify the Holder in writing of its desire to
terminate the Warrant. The Holder shall have a period of sixty (60) days from
the date of the receipt of such written notice to cure the breach to the
reasonable satisfaction of the Company (the "Cure Period"). In the event Holder
fails or declines to cure the breach during the Cure Period, the Company shall
have sixty (60) days from the end of the Cure Period (the "Termination Period")
to notify the Holder in writing that it is exercising its right to terminate the
Warrant and upon Holder's receipt of this notification the Warrant shall be
terminated. Notwithstanding any other provision of this Warrant, the Holder may
not exercise the Warrant during the Cure Period and the Termination Period.
7.5 Cash Distributions. No adjustment on account of cash dividends or
------------------
interest on the Shares or other securities purchasable hereunder will be made to
the Exercise Price under this Warrant.
-3-
<PAGE>
8. Market Stand-Off.
----------------
The Holder agrees, in connection with the Company's initial public offering
of the Company's securities, (i) not to sell, make short sales of, loan, grant
any options for the purchase of, or otherwise dispose of any shares of Common
Stock of the Company held by the Holder (other than those shares included in the
registration) without the prior written consent of the Company or the
underwriters managing such initial underwritten public offering of the Company's
securities for one hundred eighty (180) days from the effective date of such
registration and (ii) further agrees to execute any agreement reflecting (i)
above as may be requested by the underwriters at the time of the public
offering.
9. Miscellaneous.
-------------
9.1 Issue Date. The provisions of this Warrant shall be construed and
----------
shall be given effect in all respect as if it had been issued and delivered by
the Company on the date hereof. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of the State of California and for all purposes shall be
construed in accordance with and governed by the laws of said state without
regard to conflict of law principles.
9.2 Restrictions. The Holder acknowledges that the Shares acquired upon
------------
the exercise of this Warrant may have restrictions upon its resale imposed by
state and federal securities laws.
9.3 Waivers and Amendments. This Warrant and any provisions hereof may be
----------------------
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
9.4 Assignment and Transferability. This Warrant may be assigned or
------------------------------
transferred by the Holder only with the prior written approval of the Company.
IN WITNESS WHEREOF, Jutvision Corporation has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: October ___, 1998.
Jutvision Corporation.
By:_________________________________________
Kevin B. McCurdy, President
-4-
<PAGE>
NOTICE OF EXERCISE
------------------
TO: Jutvision Corporation
ATTN: Secretary
(1) The undersigned hereby elects to purchase ______________ shares of
Common Stock (the "Shares") of Jutvision Corporation pursuant to the terms of
the attached Warrant, and tenders herewith payment of the purchase price in
full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing the Shares in
the name of the undersigned or in such other name as is specified below:
______________________________________
(Print Name)
Address:
______________________________________
______________________________________
______________________________________
(3) The undersigned confirms that the Shares are being acquired for the
account of the undersigned for investment only and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or selling the Shares.
____________________ ______________________________________
(Date) (Signature)
______________________________________
(Print Name)
-5-
<PAGE>
EXHIBIT C
---------
Jutvision for Java License Agreement
If you download, install, copy, or in any other way obtain Jutvision class files
or software, you indicate that you consent to the terms listed.
Jutvision Corporation ("JUTVISION")
Jutvision(R) for Java License Agreement
By installing or using these Jutvision for Java Class Files and/or Jutvision
Demo (the "Software"), you indicate your agreement to the terms of this license
agreement. If you do not agree to the terms herein, you are not authorized to
copy or use the Software.
Limited Warranty and Limitation of remedies:
NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JUTVISION
CORPORATION EXPRESSLY DISCLAIMS ANY WARRANTY FOR SOFTWARE. THE SOFTWARE AND ANY
RELATED DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING
OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.
NO LIABILITY FOR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
NEITHER JUTVISION CORPORATION NOR ITS CLIENTS SHALL BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY
LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THIS SOFTWARE, EVEN IF
JUTVISION CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME STATES/PROVINCES JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
CUSTOMER REMEDIES. JUTVISION CORPORATION'S ENTIRE LIABILITY AND YOUR EXCLUSIVE
REMEDY SHALL NOT EXCEED THE PRICE PAID FOR THE SOFTWARE PRODUCT.
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE JUTVISION SOFTWARE LICENSE
TERMS SET FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE
LICENSE TERMS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU ARE NOT AUTHORIZED
TO USE THIS SOFTWARE.
<PAGE>
JUTVISION(R) FOR JAVA CLASS FILE LICENSE TERMS
The following License Terms govern your use of the accompanying Jutvision for
Java Class Files ("Software").
License Grant. JUTVISION grants you a license to use one copy of the Software
including all upgrades, modifications, versions and enhancements. "Use" means
storing, loading, installing, executing or displaying the Software. You may not
modify the Software or disable any licensing or control features of the
Software.
Ownership. The Software is owned and copyrighted by JUTVISION. Your license
confers no title to, nor ownership in, the Software and is not a sale of any
rights in the Software.
Copies and Adaptations. You may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software. You must reproduce all copyright notices in the
original Software on all copies or adaptations. You may not copy the Software
onto any network. Class files are only permitted to be transferred when they
are called on by a "requesting" server in the normal course of Java Applet
execution. Distribution of the Jutvision for Java Class files is not permitted.
File Format. The Software may only be used to read .jut files, a file format
proprietary to JUTVISION CORPORATION.
LINKS, REPRESENTATION & SPLASH SCREEN: Any Web site that uses the Software must
provide a visible link to either Jutvision scenes on that site, or directly to
http://www.jutvision.com. The image displayed when loading each scene
("JUTVISION SPLASH SCREEN") may not be tampered with in any way and must be
fully visible upon loading of each Jutvision scene. In no way may the JUTVISION
SPLASH SCREEN and/or Jutvision logo be obstructed by any other images, frames,
tables or any other HTML or JavaScript code.
NO DISASSEMBLY OR DECRYPTION: You may not disassemble or decompile the Software
including single Jutvision Java Class files under any circumstances. The
disassembly or decryption of any Jutvision Java Class file will result in a
breach of this agreement.
TRANSFER. Your license will automatically terminate upon any transfer of the
Software other than the copying and server rights noted above.
TERMINATION. JUTVISION CORPORATION may terminate your license upon notice for
failure to comply with any of these License Terms. Upon termination, you must
immediately destroy the Software, together with all copies, adaptations and
merged portions in any form. Failure to do so will result in immediate legal
action.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy
or adaptation in violation of any applicable laws or regulations.
-2-
<PAGE>
U.S GOVERNMENT RESTRICTED RIGHTS: The Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun 1987)(or any equivalent
agency regulation or contract clause), whichever is applicable. You have only
those rights provided for such Software and any accompanying documentation by
the applicable FAR or DFARS clause or the Jutvision Corporation standard
software agreement for the product involved.
If you have any questions regarding this Agreement or if you wish to request any
information from Jutvision Corporation, please contact the firm in writing:
Jutvision Corporation
-3-
<PAGE>
EXHIBIT D
---------
List of Competitors of Jutvision
[*]
[*]
[*]
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
EXHIBIT E
---------
[*]
[*]
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
AMENDMENT TO
JOINT SERVICES AGREEMENT, WARRANT [*]
-------------------------------------
THIS AMENDMENT TO JOINT SERVICES AGREEMENT, WARRANT [*] (the "Amendment"),
dated as of June 11, 1999 (the "Amendment Date"), among bamboo.com, Inc., a
Delaware corporation (formerly known as Jutvision Corporation ) ("bamboo.com"),
RealSelect, Inc, a Delaware corporation ("RealSelect") and HomeStore.com, Inc.,
a Delaware corporation ("HomeStore") amends (i) the Joint Services Agreement,
dated as of November 11, 1998, between bamboo.com and RealSelect (the
"Agreement"); (ii) the Warrant issued to RealSelect on January 18, 1999 pursuant
to Section 4.5 of the Agreement (the "Warrant");[*].
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. Bamboo.com as Exclusive Provider of Virtual Tour Images.
-------------------------------------------------------
The parties acknowledge and agree that RealSelect will promote, market and
endorse bamboo.com, as the exclusive provider of Virtual Tour Images to the
RealSelect Sites and the HomeStore.com site for Residential Property and will
sell the Production Services, all to the exclusion of any third-party providers
of Virtual Tour Images. On the RealSelect Sites, the HomeStore.com site and in
marketing materials produced by RealSelect that refer to bamboo.com, RealSelect
shall use commercially reasonable efforts to [*].
2. [*].
---
[*] RealSelect shall be permitted to [*] from [*] Virtual Tour Images [*]
during the Term for [*]; provided, however, that:
(i) During the Term, RealSelect will not directly or indirectly (a)
promote, market or endorse [*]; (b) solicit orders from, or make sales to,
[*]; or (c) intentionally take any other action [*] Virtual Tour Images,
and Production Services therefor, for Residential Property listings in the
Territory on RealSelect Sites and the HomeStore.com site;
(ii) During the Term, RealSelect will [*] packages of Virtual Tours
posted to the RealSelect Sites, [*] the Agreement; and
(ii) RealSelect may [*] in its sole and exclusive discretion,
provided that RealSelect must provide bamboo.com with written notice of [*]
thirty (30) days in advance of commencing to [*] and must provide
bamboo.com with written notice thirty (30) days in advance of [*].
The parties acknowledge that, except as narrowly modified in this Section
2, the [*] of the Agreement will remain in full force and effect.
3. Marketing Plan.
--------------
3.1 The parties will use best efforts to develop by July 1, 1999, and in no
event later than July 31, 1999, a detailed marketing plan (the "Marketing Plan")
for the exclusive purposes of promoting and marketing the Production Services
and developing, promoting and fostering the bamboo.com brand through banner ads,
buttons, logos and similar online elements appearing on the www.homestore.com
-----------------
and www.realtor.com web sites (collectively, the "Web Sites") as well as through
---------------
the HomeStore's direct
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
sales force. Bamboo.com shall be responsible for the initial draft of such
Marketing Plan and any such Marketing Plan shall require RealSelect's written
approval, which RealSelect shall not unreasonably withhold. Among other things,
the Marketing Plan shall require the display of the bamboo.com logo on the "home
pages" of www.homestore.com and www.realtor.com. The parties will cooperate to
----------------- ---------------
establish the precise size and placement of such bamboo.com logos. When clicked
on, these bamboo.com logos shall link directly to pages providing information
about the Production Services and an electronic order form permitting Brokers to
submit orders for Production Services to bamboo.com. These pages shall be
designed by bamboo.com, with approval from RealSelect, and will be incorporated
into, and form a part of, the respective Web Sites.
3.2 Notwithstanding the Agreement, as modified by this Amendment, to the
contrary: (i) any [*] and (ii) Brokers making such purchases shall be deemed to
be "Other Customers," as that term is defined under Section 4.2(b) of the
Agreement.
3.3 The implementation of the Marketing Plan shall commence on the first
day of the first calendar month following RealSelect's approval (the
"Implementation Date") and, subject to Section 6 below, shall extend through the
expiration or earlier termination of the Initial Term.
3.4 For the specific purpose of implementing the Marketing Plan,
bamboo.com shall [*]: (i) [*] first year of the Marketing Plan; (ii) [*] the
first anniversary of the Amendment Date; and (iii) [*] the remainder of the
Marketing Plan, commencing on the second anniversary of the Amendment Date. The
[*] under the Marketing Plan, during any given month, shall be determined based
upon [*] determined by the parties mutual, reasonable determination, [*]. For
purposes of illustration only, for each month during the first year of the
Marketing Plan, bamboo.com shall select a particular combination of [*] having a
[*]. Bamboo.com shall [*] from the end of the month for which [*].
4. [*].
---
The parties agree to negotiate in good faith and use best efforts to enter
into a separate agreement (the "[*] Agreement") whereby, if such [*] Agreement
is executed on behalf of both parties (i) bamboo.com will act as [*] in return
for a [*] during the term of the agreement, which [*] at the beginning of each
annual renewal term; and (ii) RealSelect will market and promote bamboo.com [*]
provided that there shall be [*] along the lines of those provided above with
respect to the [*]. Notwithstanding anything contained herein to the contrary,
the parties shall enter into an agreement consistent with the intent of this
Section 4 for a period beginning [*] if they are unable to agree-upon an
agreement for a longer term.
5. RealSelect Warrant.
------------------
Notwithstanding anything to the contrary in the Warrant or the Agreement,
(i) subject to Section 7.1 of the Warrant, the purchase rights represented by
the Warrant shall be exercisable from the Amendment Date through and including
December 31, 1999, whereupon the Warrant shall expire; (ii) subject to those
provisions pertaining to reclassification under Section 7.3 of the Warrant, the
number of shares of common stock of bamboo.com subject to the Warrant equal a
total of [*] shares; (iii) RealSelect or HomeStore, for its benefit, may
exercise all or a portion the Warrant in its sole discretion; [*]
6. Effective Period.
----------------
Subject to Section 11 below, this Amendment will take effect as of the
Amendment Date and will continue in effect until the expiration or prior
termination of the Initial Term. [*] bamboo.com, [*] following the Amendment
Date, and RealSelect, [*] following the Amendment Date, in each case upon
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
2
<PAGE>
notice given at least sixty (60) days prior to the end of [*] Sections 2, 5 and
8 shall survive any expiration or termination of this Amendment.
7. Certain Disclosure.
------------------
Notwithstanding Section 7 of the Agreement and any non-disclosure agreement
between the parties to the contrary, RealSelect hereby authorizes bamboo.com
subject to RealSelect's approval in advance in writing to (i) use RealSelect's
logo in a registration statement bamboo.com plans to file under the Securities
Act of 1933 (the "Registration Statement"); (ii) mention and describe the
Agreement and this Amendment in the body of the Registration Statement; and
(iii) attach and file the Agreement and this Amendment as exhibits to the
Registration Statement. RealSelect understands that bamboo.com plans to file
with the SEC a request for confidential treatment, subject to RealSelect's
approval in advance in writing, of key provisions in the Agreement and this
Amendment.
8. [*].
---
The parties agree that the [*]. The [*] are intended third-party
beneficiaries of this covenant.
9. Conditions Precedent.
--------------------
Notwithstanding anything to the contrary herein, this Amendment shall
become effective only upon the occurrence and fulfillment of both of the
following conditions (collectively, the "Conditions Precedent"): (i) bamboo.com
[*]; and (ii) bamboo.com submits electronically or by other means its
Registration Statement to the SEC. In the event the Conditions Precedent are not
fulfilled on or before [*], this Amendment shall be cancelled, rescinded and
void ab initio, unless both parties agree in writing to extend the deadline.
Bamboo.com shall use commercially reasonable efforts to [*].
10. [*].
---
The parties acknowledge that, to implement the Agreement, as modified by
this Amendment, bamboo.com requires, and shall have, access to unique
technologies owned by RealSelect and incorporated into the Web Sites and the
servers hosting the Web Sites. [*] subject to [*] in accordance with the
following schedule: (i) for the twelve (12) month period commencing on June 30,
1999, [*] (ii) for the twelve (12) month period commencing on June 30, 2000, [*]
and (iii) for the balance of the Initial Term, [*]. Bamboo.com [*] from the end
of the month for which [*].
11. Miscellaneous.
-------------
The parties understand and agree that all references in the Agreement to
the mark JUTVISION, the Jutvision logo and the Jutvision Marks will incorporate
the mark BAMBOO.COM and the bamboo.com logo, as appropriate. Except as expressly
amended hereby, the Agreement is, and shall remain, in full force and effect and
each and every term and condition thereof is hereby confirmed, continued and
ratified. All terms defined in the Agreement, except as otherwise defined
herein, shall have the same meanings where used herein. This Amendment may not
be altered, amended or modified in any way except by a writing signed by both
parties. This Amendment 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 the party whose signature appears thereon and all of which
together shall constitute one and the same instrument.
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
BAMBOO.COM, INC. REALSELECT, INC.
By: /s/ By: /s/
-------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
HOMESTORE.COM, INC.
By: /s/
--------------------------------
Name:
-------------------------------
Title:
------------------------------
4
<PAGE>
EXHIBIT 10.7
DISTRIBUTION AGREEMENT
----------------------
THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of
March 16, 1999 (the "Effective Date"), between Jutvision Corporation, a Delaware
corporation ("Jutvision"), and Microsoft Corporation, a Washington corporation
("Microsoft").
BACKGROUND
A. Jutvision uses the Jutvision Technology (as defined below) and
provides the Production Services (as defined below).
B. Microsoft operates the HomeAdvisor Site (as defined below).
C. Jutvision desires to provide virtual tour technology, hosting and
provision of Jutvision Images and production services for the HomeAdvisor Site.
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
-----------
1.1 "Broker" means any realtor, real estate broker, real estate
------
agent or any other agent or representative acting in a similar capacity, whether
an individual or some other type of entity, representing a seller of a Property.
1.2 "HomeAdvisor Site" means the real estate related products and/or
----------------
services known as "HomeAdvisor" created by or for Microsoft and located at
www.homeadvisor.msn.com (including any future versions, upgrades, successors and
- -----------------------
replacements thereof) that is published via the Internet or any and all other
means of electronic delivery now or hereafter known..
1.3 "Initial Linking Date" means the date on which Microsoft begins
--------------------
linking listings on the HomeAdvisor Site to corresponding Jutvision Images.
Microsoft will provide Jutvision with written notice of the Initial Linking
Date, which Jutvision will promptly confirm in a reply written notice sent to
Microsoft.
1.4 "Jutvision Image" means an electronic 360, panoramic image of a
---------------
Property produced by or on behalf of Jutvision which renders in its own browser
window with nothing else (including, without limitation advertising or other
information) in such window or in the splash screen that appears while such
image loads, other than the Jutvision Marks.
1.5 "Jutvision Technology" means software and hardware, including the
--------------------
Software, used to capture, process and view Jutvision Images.
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
1.6 "Production Services" means the services provided by or on
-------------------
behalf of Jutvision in producing Jutvision Images.
1.7 "Property" means any piece of residential real estate that is
--------
offered "for sale" within the Territory, including without limitation new homes,
offered for sale or resale.
1.8 "Service Provider Network" means the network of members
------------------------
throughout the Territory with whom Jutvision has entered into agreements to
capture images at designated sites on Jutvision's behalf.
1.9 "Software" means the Jutvision for Java Software and any Active X
--------
code or Active X Player developed pursuant to Section 2.4.
1.10 "Term" means the Initial Term of this Agreement and the Renewal
----
Term, if any, as set forth in Section 5.
1.11 "Territory" means the United States and its possessions.
---------
1.12 "Private Label Versions" means the real estate related products
----------------------
and/or services created by or for Microsoft (including any future versions,
upgrades, successors and replacements thereof) that are published via the
Internet or any and all other means of electronic delivery now or hereafter
known under a co-branding arrangement (e.g., branded with a Microsoft mark and
the mark of a third party) or under a third party's mark or brand.
2. PROVISION OF PRODUCTION SERVICES
--------------------------------
2.1 Sales and Billing. Jutvision will be responsible for receiving
-----------------
and fulfilling orders for Production Services. Jutvision will assume all costs
and responsibility for invoicing and collecting revenues from Brokers for all
sales of Production Services.
2.2 Image Capturing and Processing. Jutvision will have sole
------------------------------
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 Jutvision Images.
2.3 Linking; HomeAdvisor Site. The parties will use best efforts to
-------------------------
implement a system (the "Jutvision Linking System") whereby Jutvision will
designate to Microsoft, on a daily basis, listings on the HomeAdvisor Site
having corresponding Jutvision Images by sending an ASCII, tab delimited file
via FTP that might include fields such as MLS number, zip code, address, URL,
Agent ID, and such other fields reasonably needed by Microsoft to match its
listings with the corresponding Jutvision Images. Unless Jutvision causes
delays in the implementation of the Jutvision Linking System, Microsoft will
exercise commercially reasonable efforts to implement the Jutvision Linking
System at the least at the same time as implementing with any competitor of
Jutvision any linking or posting system similar to the Jutvision Linking System.
In collaboration with Jutvision, Microsoft agrees to develop and include the
following on the HomeAdvisor Site throughout the Term:
-2-
<PAGE>
(a) a link within the Partners Center area of the HomeAdvisor Site to
an electronic order form with a look and feel consistent with the HomeAdvisor
Site, approved by both parties, which approvals shall not be unreasonably
withheld, hosted on a Jutvision server, framed on the HomeAdvisor Site and
containing links only back to the HomeAdvisor Site, that permits a user to
submit orders for Production Services to Jutvision via the Internet;
(b) a link, consisting of a Jutvision logo, located above the fold
(i.e., visible to an end user without scrolling or navigation on a 640 by 480
pixel page) within each "Detailed Listing Page"( that is, a page within the
HomeAdvisor Site that displays information about only one specific Property)
having a corresponding Jutvision Image, that, when clicked on, links directly to
a Jutvision Image residing on a Jutvision server (with the logo size and exact
placement above the fold to be determined in Microsoft's discretion); and
(c) an indicator in that section of the HomeAdvisor Site that displays
information about multiple properties that fit a user's search parameters to
indicate whether Jutvision Images are available for a listing.
Microsoft shall cooperate with Jutvision in the performance of Jutvision's
obligations under this Agreement and Jutvision shall cooperate with Microsoft in
the performance of Microsoft's obligations under this Agreement.
2.4 Code Development. Within ninety (90) days of the Effective Date,
----------------
Jutvision will develop and implement code of a high grade, nature and quality
for [*] in displaying the Jutvision Images [*]. In the event that Microsoft
determines that [*] does not function in accordance with Microsoft's reasonable
standards, Microsoft may provide Jutvision with a written notice specifying all
defects in [*]. Jutvision will have thirty (30) days to cure any such defects,
and Microsoft will cooperate with and assist Jutvision in curing such defects
during such cure period. If, by the end of such cure period, the parties have
not developed a cure reasonably acceptable to Microsoft, Microsoft may develop
[*]. Notwithstanding anything to the contrary in this Agreement, if Jutvision
has created an [*] in accordance with the requirements of this Section 2.4,
Microsoft may require Jutvision to provide the [*] or the Jutvision for Java
Software player with Jutvision Images accessed by users of the HomeAdvisor Site,
and to users of Private Label Versions permitted under Section 4.1(b) (provided
in each case, that Jutvision (x) will not be obligated to provide a player that
is not supported by the user's browser and (y) if Microsoft requests that [*] be
provided, but the user has turned off [*], Jutvision may deliver the Jutvision
for Java Software player rather than [*]). If Jutvision has not created an [*]
in accordance with the requirements of this Section 2.4, Microsoft may require
Jutvision to provide the Jutvision for Java Software player or no player-- in
the same circumstances contemplated by the foregoing sentence until Jutvision
has developed [*] which meets Microsoft's reasonable standards.
_________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-3-
<PAGE>
2.5 Testing and Performance Standards. Jutvision will conduct
---------------------------------
performance testing of Jutvision Images and the Software, including without
limitation the Active X code, with the following browsers and platforms: (i)
Internet Explorer 3.0 and above; (ii) Netscape Navigator 3.0 and above; (iii)
Windows 95/98; (iv) Windows NT 4.0 SP3; and (v) Macintosh OS 8 and above.
Jutvision will provide approximately [*] availability (excluding reasonable
scheduled outages and maintenance that are restricted to certain days and times)
of Jutvision servers hosting linked Jutvision Images ("Server Uptime Level").
The Server Uptime Level is to be measured by the total number of minutes during
a calendar month in which Jutvision servers hosting linked Jutvision Images are
completely available to provide users of the World Wide Web access to linked
Jutvision Images, divided by the total number of minutes during the calendar
month. For purposes of the Server Uptime Level, a lapse in server availability
is calculated from the time Jutvision detects or otherwise becomes aware of an
incidence of a service interruption and ending when the service is restored,
regardless of where the outage originated. In addition, Jutvision will use
commercially reasonable efforts to ensure that Jutvision Images will fully
render in a browser within [*] seconds when the computer accessing such
Jutvision Images has a Pentium 200 MHz or faster CPU, 32 MB of RAM and a 28.8 or
faster modem, and is running Windows 95 and Internet Explorer 4.0, provided that
such rendering of Jutvision Images is not delayed by Internet or network
disruptions beyond Jutvision's control or factors attributable to Microsoft.
Performance criteria to apply to browsers running Jutvision for Java or with
Jutvision Active X component installed already.
2.6 Marketing; Additional Obligations. Subject to Microsoft's
---------------------------------
prior approval, which Microsoft will not unreasonably withhold or delay,
Jutvision may promote the relationship established under this Agreement on
Jutvision's Web site and in its marketing materials. In addition, Jutvision and
Microsoft will, from time to time, use reasonable efforts to cooperate in joint
marketing efforts for the Production Services on such terms and conditions as
are mutually agreed. Each party will assign a project manager to act as the
primary liaison with respect to the relationship provided for hereunder, and all
discussions between the parties with respect to the respective performance of
obligations hereunder will be conducted by these project managers or their
designees.
2.7 Advertisements of Competitors: Without prior consent from
-----------------------------
Jutvision, Company will not display any advertisements of any competitor of
Jutvision on Detailed Listing Pages that have Jutvision Images, but the
foregoing shall not prevent Microsoft from displaying electronic images of the
same Property provided by another company or person on such Detailed Listing
Pages . For purposes of this section, 'competitor of Jutvision' is defined as
any virtual tour provider including but not limited to [*].
2.8 Agreements with Third Parties. In the event Jutvision learns
-----------------------------
that Microsoft has entered into any arrangement under which [*] to any [*],
Jutvision may request in writing that
____________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-4-
<PAGE>
Microsoft afford Jutvision an opportunity to obtain [*]. Microsoft will seek,
but will not be obligated, to [*]; provided, however, that, if Microsoft does
not do so within thirty (30) days of Jutvision's written request, Jutvision may,
at Jutvision's election and upon written notice to Microsoft, [*] of the then-
current Payment Period (as defined below).
3. FEES
----
3.1 Sponsorship Fees. On the Initial Linking Date, and by the end of
----------------
each successive ninety (90) day period following the Initial Linking Date during
the Term (each a "Payment Period"), Jutvision will pay Microsoft a fee of [*].
4. PROPRIETARY RIGHTS
------------------
4.1 Jutvision Technology.
--------------------
(a) All Jutvision Technology, including without limitation the
Software and all Jutvision Images, whether or not produced for Brokers and
whether or not linked to the HomeAdvisor Site or Private Label Versions, are,
and at all times will remain, the exclusive property of Jutvision, and no
provision of this Agreement implies any transfer to Microsoft of any ownership
interest in any Jutvision Technology. Microsoft will not reproduce, distribute,
modify, edit, or prepare derivative works from the Jutvision Images without the
prior written permission of Jutvision.
(b) Jutvision hereby grants to Microsoft a nonexclusive, worldwide,
royalty-free, nontransferable license to include on the HomeAdvisor Site and in
Permitted Private Label Versions (as defined below) links to Jutvision Images on
Jutvision's servers solely for the purposes contemplated in this Agreement. The
foregoing license does not include any right to grant or authorize sublicenses,
except as permitted above with respect to "Permitted Private Label Versions".
Microsoft has no obligation under this Agreement to include any links to
Jutvision Images in any Private Label Versions. "Permitted Private Label
Versions" means Private Label Versions that Jutvision could participate in, on
the terms contemplated by this Agreement, without violating one of Jutvision's
existing or future third party contractual relationships. If Microsoft wishes
to create a Private Label Version it shall notify Jutvision and Jutvision shall
within 10 business days after receipt of Microsoft's notice, notify Microsoft
whether or not such a transaction would be a Permitted Private Label Version,
and if not, the specific reasons therefor.
_________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-5-
<PAGE>
4.2 Trademarks.
----------
(a) Jutvision Marks.
---------------
(i) Jutvision owns and at all times will continue to own
the trademarks, service marks and/or trade names JUTVISION and the Jutvision
logo, as well as any name or mark Jutvision may subsequently adopt as a trade
name or to designate the Production Services or any other goods and services
furnished by Jutvision hereunder (collectively, the "Jutvision Marks").
Microsoft will not take any actions inconsistent with Jutvision's ownership
rights.
(ii) Subject to the restrictions set forth herein,
Jutvision hereby grants Microsoft a nonexclusive, worldwide, royalty-free, fully
paid up, nontransferable right to use the Jutvision Marks, during the term of
this Agreement, solely in connection with promotion and marketing of the
Jutvision Images and Production Services as provided in Section 2. Microsoft's
use of the Jutvision Marks will not create in Microsoft any right, title or
interest therein or thereto. All use by Microsoft of the Jutvision Marks will
inure to the exclusive benefit of Jutvision. At Jutvision's reasonable request
and at Jutvision's sole expense, Microsoft will assist Jutvision with the
protection and maintenance of the Jutvision Marks. Microsoft may only use the
Jutvision Marks as expressly permitted herein. Microsoft agrees to use the
Jutvision Marks in a manner commensurate with the style, appearance and quality
of Jutvision's services and/or products bearing such marks.
(b) Microsoft Marks.
---------------
(i) Microsoft owns and at all times will continue to own
the trademarks, service marks and/or trade names MICROSOFT, the Microsoft logo,
and HOMEADVISOR (the "Microsoft Marks"). Jutvision will not take any actions
inconsistent with Microsoft's ownership rights.
(ii) Subject to the restrictions set forth herein,
Microsoft hereby grants Jutvision a nonexclusive, worldwide, royalty-free, fully
paid up, nontransferable right to use the Microsoft Marks, during the term of
this Agreement, solely in connection with promotion and marketing of the
Jutvision Images and Production Services as provided in Section 2 and in
accordance with Microsoft's then current usage policies with respect thereto.
Jutvision's use of the Microsoft Marks will not create in Jutvision any right,
title or interest therein or thereto. All use by Jutvision of the Microsoft
Marks will inure to the exclusive benefit of Microsoft. At Microsoft's
reasonable request and at Microsoft's sole expense, Jutvision will assist
Microsoft with the protection and maintenance of the Microsoft Marks. Jutvision
may only use the Microsoft Marks as expressly permitted herein. Jutvision agrees
to use the Microsoft Marks in a manner commensurate with the style, appearance
and quality of Microsoft's services and/or products bearing such marks.
4.3 Limitation on Grant of Rights. Except as expressly provided herein,
-----------------------------
neither party receives any other right or license to the technology or
intellectual property of the other party.
-6-
<PAGE>
5. TERM AND TERMINATION
--------------------
5.1 Term. Unless earlier terminated as set forth below, this Agreement
----
will become effective upon the Effective Date and continue for a period of
twelve (12) months measured from the Initial Linking Date (the "Initial Term").
Thereafter, this Agreement will be automatically renewed for an additional six
(6) month period (the "Renewal Term") unless either party notifies the other in
writing not less than ninety (90) days prior to the end of the Initial Term of
its intention to terminate this Agreement as of the end of the Initial Term.
5.2 Termination for Insolvency. If voluntary or involuntary proceedings
--------------------------
by or against a party are instituted in bankruptcy under any insolvency law, or
a receiver or custodian is appointed for such party, or proceedings are
instituted by or against such party for corporate reorganization, dissolution,
liquidation or winding-up of such party, which proceedings, if involuntary,
shall not have been dismissed within sixty (60) days after the date of filing,
or if such party makes an assignment for the benefit of creditors, or
substantially all of the assets of such party are seized or attached and not
released within sixty (60) days thereafter, the other party may immediately
terminate this Agreement effective upon notice of such termination.
5.3 Termination for Breach. This Agreement will terminate in the event 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.
5.4 Effects of Termination. Upon expiration or termination of this
----------------------
Agreement:
(a) Jutvision will cease all use of the Microsoft Marks;
(b) Commensurate with the quality of services provided prior to such
expiration or termination, Jutvision will continue to provide Production
Services and support to third parties who purchased such Production Services
prior to such expiration or termination;
(c) Microsoft will cease all use of the Jutvision Marks;
(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
5.5 Survival of Certain Terms. The provisions of Sections 4.1 (a),
-------------------------
4.2(a)(i), 4.2(b)(i), 4.3, 5.4, 5.5, 6, 7.1, 7.2, 7.3, 8, 9, and 10 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.
5.6 Removal. Microsoft may at any time remove or delete access to
--------
particular Jutvision Images if it reasonably believes that such image or images
fail to comply with
-7-
<PAGE>
Jutvision's representations and warranties set forth in this Agreement or may
have an adverse effect on the image or reputation of Microsoft. Within three (3)
days after any such removal or deletion, Microsoft shall provide Jutvision with
written notice identifying the specific Jutvision Images removed or deleted and
indicating the reason(s) therefor.
6. CONFIDENTIALITY
----------------
6.1 Microsoft and Jutvision have entered into a Non-Disclosure Agreement
dated March 5, 1999. The terms of such Non-Disclosure Agreement shall be deemed
incorporated herein, and all terms and conditions of this Agreement shall be
deemed Confidential Information as defined therein.
7. REPRESENTATIONS AND WARRANTIES
------------------------------
7.1 Each party represents and warrants to the other that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation set forth above and
is duly qualified and authorized to do business as a foreign corporation in good
standing in all jurisdictions in which the nature of its assets or business
requires such qualification;
(b) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
(c) its execution, delivery and performance of this Agreement have
been duly and properly authorized by all necessary actions and this Agreement
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms; and
(d) its execution, delivery and performance of this Agreement will
not, with or without the giving of notice or passage of time, or both, conflict
with, or result in a default or loss of rights under, any provision of its
certificate of incorporation or by-laws or any other material agreement or
understanding to which it is a party or by which it or any of its material
properties may be bound.
7.2 [*] represents and warrants [*] that:
(a) the [*] is original to [*] and does not infringe any copyright,
patent, trade secret or other proprietary right held by any third party;
(b) the [*] are not defamatory, do not violate any rights of privacy
or publicity of any third party and comply with all applicable laws;
___________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-8-
<PAGE>
(c) [*] has secured in writing all necessary third party permissions
so that no further permissions and/or payments of any kind will be required for
[*] of the [*] as contemplated herein;
(d) the [*] will be of a high grade, nature, and quality and will
be performed in a professional manner.
(e) there has been no [*] (as that term is defined under [*] below).
7.3 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE
---------------
ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT. SUCH WARRANTIES 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. INDEMNIFICATION
---------------
8.1 Each party (the "Indemnifying Party") will indemnify, defend and hold
harmless the other party and its officers, directors, agents, employees,
successors and permitted assigns (hereinafter collectively the "Indemnified
Party") from and against any and all losses, claims, suits, proceedings,
liabilities, expenses (including reasonable attorneys' fees and expenses),
causes of action, damages and costs (collectively "Claims") arising out of or in
connection with the breach, potential breach or inaccuracy of, or failure to
comply with, any of the representations and warranties contained in Section 7 on
the part of the Indemnifying Party. In addition, (a) Jutvision will indemnify,
defend and hold harmless the Indemnified Party from and against all Claims
arising out of or in connection with the Jutvision Technology, the Jutvision
Images, the Production Services and/or the Service Provider Network, and (b)
Microsoft will indemnify, defend and hold harmless the Indemnified Party from
and against all Claims arising out of or in connection with the HomeAdvisor Site
(other than those Claims covered by (a) above).
8.2 Any Indemnified Party entitled to indemnification under this Section
will give prompt notice to the indemnifying Party of any Claim with respect to
which it seeks indemnification, but the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability except to the
extent that it is actually prejudiced by such delay. The Indemnifying Party
shall assume, at its sole cost and expense, the defense of such Claim with
counsel reasonably satisfactory to the Indemnified Party. The Indemnifying
Party will not be subject to any liability for any settlement made without its
consent. The Indemnifying Party shall not, without consent of the Indemnified
Party, effect any settlement or
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-9-
<PAGE>
discharge or consent to the entry of any judgment, unless such settlement or
judgment includes as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a general release from all liability in
respect of such claim or litigation.
9. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 8 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION
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.
10. GENERAL PROVISIONS
------------------
10.1 Independent Contractors. The relationship of Jutvision and Microsoft
-----------------------
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed to (i) give either party the power
to direct and control the day-to-day activities of the other, (ii) constitute
the parties as partners, joint venturers, co-owners or otherwise as participants
in a joint undertaking, or (iii) allow either party to create or assume any
obligation on behalf of the other for any purpose whatsoever. All financial and
other obligations associated with a party's business are the sole responsibility
of that party.
10.2 Press Plans.
-----------
(a) Either party may issue its own press releases, subject to the
other party's prior approval, not to be unreasonably withheld, of the content
within each party's releases. Each party will furnish its written acceptance of
or objection to any proposed announcement within forty-eight (48) hours;
provided, however, that a failure to respond within such forty-eight-hour period
will be deemed an acceptance of such announcement.
(b) Microsoft agrees not to publicly announce, or authorize the public
announcement of, [*] prior to, or within ten (10) business days following, the
Effective Date.
10.3 Entire Agreement. This Agreement, including all exhibits attached
----------------
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
_________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-10-
<PAGE>
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged.
10.4 Notices. 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 below or at such other address for which such
party gives notice hereunder. Delivery will be deemed effective three (3) days
after deposit with postal authorities.
If to Microsoft: Bryan Mistele
Product Unit Manager
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052
Tel: (425) 703-4581
Fax: (425) 936-7329
Cc: Law & Corporate Affairs (at same address)
If to Jutvision: Andrew P. Laszlo
Senior Vice President of
Business Development
Jutvision Corporation
124 University Avenue
Third Floor
Palo Alto, CA 94301
Tel: 650-325-6787
Fax: 650-325-9337
10.5 Force Majeure. Nonperformance of either party will be excused for a
-------------
period not to exceed 30 days, 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.
10.6 Non-Assignability and Binding Effect. Except as expressly provided
------------------------------------
herein, this Agreement may not be assigned or transferred, or may any right or
obligation hereunder be assigned or delegated, to a third party by either party
without the prior written consent of the other party hereto. Notwithstanding
the foregoing, 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. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
10.7 Modification; Waiver. 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
-11-
<PAGE>
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.
10.8 Headings. The headings to the sections and subsections of this
--------
Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
10.9 Severability. In the event that it is determined by a court of
------------
competent jurisdiction as part of a final nonappealable ruling, government
action or binding arbitration, that any provision of this Agreement (or part
thereof) is invalid, illegal, or otherwise unenforceable, such provision will be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement will remain in full force and
effect and bind the parties according to its terms. To the extent any provision
(or part thereof) cannot be enforced in accordance with the stated intentions of
the parties, such provision (or part thereof) will be deemed not to be a part of
this Agreement.
10.10 Counterparts; Facsimile Signatures. 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.
10.11 [*] In the event that any [*] of the [*] and/or [*], through any
means whatsoever, the [*] associated with more than [*] (collectively referred
to as a [*]), [*] shall immediately notify [*] in writing and either party
shall, for a period of 30 days thereafter, have the right to [*] upon written
notice to the other party. In the event [*] is elected by Microsoft, Microsoft
shall [*] that portion of the [*] corresponding to the [*] of the then current
[*].
10.12 Agreement Nonexclusive. Microsoft and Jutvision each shall have the
----------------------
right to enter into agreements similar to this Agreement with others without the
consent of the other.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
JUTVISION CORPORATION MICROSOFT CORPORATION
By: __________________________ By: __________________________
Title: _________________________ Title: _________________________
Date: _________________________ Date: _________________________
__________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-12-
<PAGE>
EXHIBIT 10.8
[Execution Draft]
DISTRIBUTION AGREEMENT
----------------------
THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of
November 20, 1998 (the "Effective Date"), between Jutvision Corporation, a
Delaware corporation ("Jutvision"), and HomeSeekers.com, Inc., a Nevada
corporation ("HomeSeekers").
BACKGROUND
A. Jutvision uses the Jutvision Technology (as defined below) and
provides the Production Services (as defined below).
B. HomeSeekers operates the HomeSeekers Sites (as defined below).
C. Jutvision desires to be the exclusive provider of virtual tour
technology and production services for the HomeSeekers Sites.
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
-----------
1.1 "Basic Package" means up to four scenes captured in a designated
-------------
Residential Property and converted into a corresponding number of Jutvision
Images.
1.2 "Broker" means any realtor, real estate broker, real estate
------
agent or any other agent or representative acting in a similar capacity, whether
an individual or some other type of entity, representing a seller of a
Residential Property.
1.3 "CD ROM Product" means the CD ROM product, tentatively titled
--------------
"Realty 2000," that HomeSeekers plans to market and distribute to Brokers and
that bundles information regarding Jutvision's Production Services and an
electronic form for ordering such Production Services.
1.4 "HomeSeekers Coupons" means the coupons that Brokers will receive
-------------------
at seminars conducted by HomeSeekers or its representatives that permit such
Brokers to order Basic Packages and Upgrade Packages. Each HomeSeekers Coupon
will contain a unique coupon number that a Broker will provide to Jutvision for
authentication and tracking purposes.
1.5 "HomeSeekers Sites" means the collection of English and Spanish
-----------------
language HTML documents residing on servers operated by or for HomeSeekers or
its affiliate and accessible on or after the Effective Date by Brokers or the
public via the Internet, including those currently accessible at the URL
http://www.homeseekers.com.
- --------------------------
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
1.6 "HS Originated Order" means any order received by Jutvision for a
-------------------
Basic Package or Upgrade Package placed by a Broker using a HomeSeekers Coupon
or via an electronic order form submitted by means of the CD ROM Product.
1.7 "Jutvision Image" means an electronic image of a Residential
---------------
Property produced by or on behalf of Jutvision.
1.8 "Jutvision Technology" means software and hardware used to
--------------------
capture, process and view Jutvision Images.
1.9 "Net Revenues" means the gross amount received by Jutvision from
------------
Brokers for sales of the [*] (i) refunds, discounts, credits and allowances,
(ii) packaging, handling fees, freight, and sales taxes and other governmental
charges, and (iii) reasonable provisions for doubtful collections determined in
accordance with GAAP.
1.10 "Production Services" means the services provided by or on
-------------------
behalf of Jutvision in preparing the Basic Packages and Upgrade Packages.
1.11 "Residential Property" means any piece of residential real
--------------------
estate within the Territory, including without limitation new homes, offered for
sale or resale.
1.12 "Service Provider Network" means the network of members
------------------------
throughout the Territory with whom Jutvision has entered into agreements to
capture images at designated sites on Jutvision's behalf.
1.13 "[*]" means the [*] Jutvision generally [*] third parties for
each Basic Package during a particular time period. As of the Effective Date,
the [*]; provided, however, that Jutvision will notify HomeSeekers in writing of
[*] in the [*] during the Term.
1.14 "[*]" means the [*] Jutvision generally [*] third parties for
each Upgrade Package during a particular time period. As of the Effective Date,
the [*]; provided, however, that Jutvision will notify HomeSeekers in writing of
[*] in the [*] during the Term.
1.15 "Term" means the Initial Term of this Agreement and all Renewal
----
Terms, if any, as set forth in Section 6.
1.16 "Territory" means the United States and its possessions.
---------
1.17 "Transaction Fee" means the fees paid during the Term based on
---------------
sales of [*] as provided in Section 4.1.
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-2-
<PAGE>
1.18 "Upgrade Package" means an addition to a Basic Package
---------------
consisting of one additional scene captured at the same designated Residential
Property of the Basic Package and converted into one additional Jutvision Image
for the scene captured.
2. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
---------------------------------------------
2.1 Sales and Billing. Jutvision will be responsible for receiving and
-----------------
fulfilling orders for Basic Packages and Upgrade Packages.
2.2 Image Capturing, Processing and Posting. Jutvision will have sole
---------------------------------------
responsibility for, and will bear all costs associated with, capturing images at
designated sites through its Service Provider Network, processing captured
images to create Jutvision Images and posting Jutvision Images to the
HomeSeekers Sites. HomeSeekers will permit such postings and will work with
Jutvision to maintain the ability of the HomeSeekers Sites to receive such
postings throughout the Term.
2.3 Exclusivity. During the Term, HomeSeekers will not directly or
-----------
indirectly (i) promote or market itself or any third party as a provider, for
listings in the Territory posted to a HomeSeekers Site, of 360, three-
dimensional, virtual reality, virtual tour, virtual walkthrough or other similar
images ("Virtual Tour Images"), or technology or production services for such
Virtual Tour Images; (ii) provide the services of capturing or processing
Virtual Tour Images for listings in the Territory posted to a HomeSeekers Site;
(iii) use the services of, or enter into any arrangement under which services
will be provided by, any third party with respect to capturing or processing
Virtual Tour Images for listings in the Territory posted to a HomeSeekers Site;
(iv) permit any Virtual Tour Images (other than those supplied by Jutvision) or
any site or identity of a third party provider of Virtual Tour Images, or
technology or services therefor, to be posted to, linked to or otherwise made
accessible through a HomeSeekers Site; or (v) take any other action inconsistent
with the parties' understanding hereunder that Jutvision will act as the
exclusive provider of Virtual Tour Images, and production services therefor, for
listings in the Territory posted to a HomeSeekers Site. In the event that
Jutvision fails to use commercially reasonable efforts during the Term to keep
the Jutvision Technology competitive with the viewing technology that
Jutvision's competitors offer to the mass market at similar price points and for
a similar use, HomeSeekers may provide Jutvision with a written notice
specifying the steps Jutvision should take to make the Jutvision Technology
competitive. If Jutvision fails to take such specified steps or such steps as
Jutvision and HomeSeekers subsequently mutually agree upon within ninety (90)
days after receiving such written notice, [*].
3. MARKETING AND PROMOTION
-----------------------
3.1 HomeSeekers Obligations. HomeSeekers agrees to market, promote and
-----------------------
facilitate sales of the Production Services as follows:
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-3-
<PAGE>
(a) HomeSeekers Sites. HomeSeekers will market and promote the
-----------------
Production Services on the HomeSeekers Sites. As part of such marketing and
promotion, on the "home page" of each of the HomeSeekers Sites, or the page that
is first accessed when the URL http://www.homeseekers.com or the URLs of other
such sites are designated in an Internet browser, and on pages of the
HomeSeekers Sites displaying Jutvision Images, HomeSeekers will display a
prominent Jutvision logo that, when clicked on, links to an HTML page located at
a URL supplied by Jutvision. HomeSeekers agrees not to display any
advertisements of any competitor of Jutvision on any HomeSeekers Site without
the prior approval of Jutvision.
(b) Seminars and Trade Shows. At seminars HomeSeekers or its
------------------------
representatives conduct with Brokers, HomeSeekers or its sales representatives
will distribute to Brokers HomeSeekers Coupons and marketing materials created
by Jutvision that promote and highlight the advantages of the Production
Services.
(c) CD ROM Products. HomeSeekers will distribute CD ROM Products to
---------------
Brokers throughout the Term. The main menu or screen displayed in all such CD
ROM Products will contain a button that links to information on the CD ROM
Products about Jutvision's Production Services and to an electronic order form
on the CD ROM Products permitting Brokers to submit to Jutvision via the
Internet orders for Basic Packages and Upgrade Packages. Such button, which at
Jutvision's election may be an animated .gif image, will be at least as
prominent in size, usage and placement as buttons or links for any other
products or services of third parties bundled on the CD ROM Products.
HomeSeekers agrees that Jutvision is the exclusive provider of Virtual Tour
Images with respect to the CD ROM Products and agrees not to include in any CD
ROM Product any information, order forms or other references to any technology
or production services for Virtual Tour Images of any third party.
(d) Email and Direct Marketing. HomeSeekers agrees to include in
--------------------------
email and direct marketing that it generates from time to time a section,
reasonably satisfactory to Jutvision, highlighting the availability and features
of the Production Services. In addition, HomeSeekers will permit Jutvision to
post email messages, written by Jutvision and containing marketing information
regarding the Production Services, through servers controlled by HomeSeekers at
least [*].
(e) HomeSeekers shall cooperate with Jutvision in the performance of
Jutvision's obligations under this Agreement.
3.2 Additional Obligations. The parties will, from time to time, use
----------------------
reasonable efforts to cooperate in joint marketing efforts for the Production
Services on such terms and conditions as are mutually agreed. Each party will
assign a project manager to act as the primary liaison with respect to the
relationship provided for hereunder, and all discussions between the parties
_____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-4-
<PAGE>
with respect to the respective performance of obligations hereunder will be
conducted by these project managers or their designees.
4. FEES
----
4.1 Transaction Fees. During the Term, each party will pay Transaction
----------------
Fees to the other as follows:
(a) With respect to the [*] fulfilled by Jutvision during the Term:
(i) HomeSeekers will pay to Jutvision [*], plus
applicable sales tax, for each [*] that Jutvision provides to a Broker in
fulfillment of a [*]
(ii) Jutvision will pay to HomeSeekers for each semi-
monthly period [*] for [*] sold to a Broker during such period, for which
revenue is collected, in fulfillment of an electronic order received [*] for [*]
sold to a Broker during such period, for which revenue is collected, in
fulfillment of an electronic order received [*].
(b) With respect to [*] fulfilled by Jutvision during the Term in
excess of [*]:
(i) HomeSeekers will pay to Jutvision (x) [*],
plus applicable sales tax, for [*] that Jutvision provides to a Broker in
fulfillment of a [*] minus [*] for each [*] so provided [*] from sales of [*] so
provided, calculated at the [*], and (y) the [*], plus applicable sales tax, for
each [*] so provided [*] from sales of [*] so provided, calculated at [*].
(ii) Jutvision will pay to HomeSeekers for each semi-
monthly period (x) the [*] for each [*] sold to a Broker during such period, for
which revenue is collected, in fulfillment of an electronic order received via
the [*] from sales of [*] so sold during such period and (y) the [*] for each
[*] sold to a Broker during such period, for which revenue is collected, in
fulfillment of an electronic order received via the [*] from sales of [*] so
sold during such period.
The parties acknowledge that the differences between the Transaction Fees paid
in 4.1(a) and 4.1(b) account for the [*] Jutvision will receive through
HomeSeekers' inclusion of information pertaining to the Production Services in
the [*]. The foregoing sentence does not state any additional obligation or
liability with respect to either party.
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-5-
<PAGE>
(c) With respect to all sales of Production Services by Jutvision that
do not directly result from [*], Jutvision will pay to HomeSeekers for each
semi-monthly period [*] for each [*] it [*] during such period and [*] for each
[*] it [*] during such period.
(d) No Transaction Fees will be due hereunder (i) with respect to
Production Services or Jutvision Images sold to third parties other than as
expressly set forth above and (ii) with respect to any Production Services
Jutvision distributes free of charge on a promotional basis.
4.2 Invoices; Reports; Payment of Fees. Except as otherwise provided in
----------------------------------
Section 4.2(a), calculation of Transaction Fees will commence semi-monthly as
provided above. The parties shall issue invoices and reports and make payments
of fees as follows:
(a) HomeSeekers Coupons. Jutvision will promptly send HomeSeekers the
-------------------
tracking number of each HomeSeekers Coupon it has been requested to fulfill
together with a description of the Production Services to be provided in
fulfillment of such HomeSeekers Coupon. Within twenty-four (24) hours after
receiving each such tracking number, HomeSeekers will [*] specified in Sections
4.1(a)(1) or 4.1 (b)(1), as applicable; alternatively, HomeSeekers may, as
Jutvision in its sole discretion deems acceptable, [*] in some other form of [*]
or furnish other [*] to Jutvision prior to Jutvision's fulfillment of such
HomeSeekers Coupon. In the event HomeSeekers sells a HomeSeekers Coupon for a
Basic Package as a standalone product, HomeSeekers agrees that [*] for any such
HomeSeekers Coupon will [*]. In the event HomeSeekers sells a HomeSeekers
Coupon for an Upgrade Package as a standalone product, HomeSeekers further
agrees that [*] for such HomeSeekers Coupon will [*].
(b) CD ROM Products Sales. Jutvision will make all payments of
---------------------
Transaction Fees payable pursuant to Sections 4.1(a)(ii) and 4.1(b)(ii) twice
monthly; provided, however, that Jutvision will not be required to pay any such
Transaction Fees on particular sales of Basic Packages and Upgrade Packages
until [*] or [*] from Brokers for such Basic Packages and Upgrade Packages have
been fully credited to Jutvision. With each semi-monthly payment, Jutvision
will provide a report stating (i) the number of Basic Packages and Upgrade
Packages sold in accordance with Sections 4.1(a)(ii) and 4.1(b)(ii) during the
period and providing a calculation of the Transaction Fees payable.
(c) Non-HS Originated Orders. Jutvision will make all payments of
------------------------
Transaction Fees payable pursuant to Section 4.1(c) twice monthly. With each
semi-monthly payment, Jutvision will provide a report stating (i) the number of
Basic Packages and Upgrade Packages posted to HomeSeekers Sites during the
period and providing a calculation of the Transaction Fees payable.
_____________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-6-
<PAGE>
4.3 Inspection of Records. HomeSeekers will have the right, at its own
---------------------
expense and not more than once in any twelve (12) month period, to authorize an
independent auditor reasonably acceptable to both parties to inspect those
accounting records of Jutvision necessary to verify the accuracy of fees paid or
invoiced by Jutvision under the terms of this Agreement, provided that such
independent auditor has executed a confidentiality agreement with respect to
such records that is reasonably acceptable to Jutvision. Such inspections will
take place during Jutvision's normal business hours, upon not less than twenty
(20) days' prior written to Jutvision and on a date mutually agreed upon by the
parties.
5. PROPRIETARY RIGHTS
------------------
5.1 Jutvision for Java Software. Jutvision hereby grants to HomeSeekers a
---------------------------
nonexclusive, worldwide, royalty-free license to use the Jutvision for Java
software during the Term, in object code only, to display Jutvision Images on
the HomeSeekers Sites. The foregoing license is subject to all of the terms and
conditions set forth in the Jutvision for Java License Agreement attached hereto
as Exhibit A.
5.2 Jutvision Images.
----------------
(a) All Jutvision Images, whether or not produced for HomeSeekers
customers and whether or not posted to a HomeSeekers Site, are, and at all times
will remain, the exclusive property of Jutvision, and no provision of this
Agreement implies any transfer to HomeSeekers of any ownership interest in any
Jutvision Image. Despite Jutvision's ownership of the Jutvision Images,
however, Jutvision will not impair the ability of Brokers to link to or
otherwise use the Jutvision Images in accordance with Jutvision's standard terms
and conditions governing the sale of Basic Packages and Upgrade Packages.
(b) Jutvision hereby grants to HomeSeekers a nonexclusive, worldwide,
royalty-free, nontransferable license to display, perform and reproduce
Jutvision Images on the HomeSeekers Sites solely for the purposes contemplated
in this Agreement. HomeSeekers will not distribute, modify, edit, or prepare
derivative works from the Jutvision Images without the prior written permission
of Jutvision. The foregoing license does not include any right to grant or
authorize sublicenses.
5.3 Trademarks.
----------
(a) Jutvision Marks.
---------------
(i) Jutvision owns and at all times will continue to own the
trademarks, service marks and/or trade names JUTVISION and the Jutvision logo
(the "Jutvision Marks"). HomeSeekers will not take any actions inconsistent
with Jutvision's ownership rights.
(ii) Subject to the restrictions set forth herein, Jutvision
hereby grants HomeSeekers a nonexclusive, worldwide, royalty-free, fully paid
up, nontransferable right to use the Jutvision Marks, during the term of this
Agreement, solely in connection with promotion and marketing of the Production
Services as provided in Section 3. HomeSeekers'
-7-
<PAGE>
use of the Jutvision Marks will not create in HomeSeekers any right, title or
interest therein or thereto. All use by HomeSeekers of the Jutvision Marks will
inure to the exclusive benefit of Jutvision. At Jutvision's reasonable request,
HomeSeekers will assist Jutvision with the protection and maintenance of the
Jutvision Marks. HomeSeekers may only use the Jutvision Marks as expressly
permitted herein. HomeSeekers agrees to use the Jutvision Marks in a manner
commensurate with the style, appearance and quality of Jutvision's services
and/or products bearing such marks.
(b) HomeSeekers Marks.
-----------------
(i) HomeSeekers owns and at all times will continue to own the
Private Brand and the trademarks, service marks and/or trade names
HOMESEEKERS.COM as well as those outlined in Exhibit B (the "HomeSeekers
Marks"). Jutvision will not take any actions inconsistent with HomeSeekers'
ownership rights.
(ii) Subject to the restrictions set forth herein, HomeSeekers
hereby grants Jutvision a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the HomeSeekers Marks, during the term of this
Agreement, solely in connection with promotion and marketing of the Production
Services. Jutvision's use of the HomeSeekers Marks will not create in Jutvision
any right, title or interest therein or thereto. All use by Jutvision of the
HomeSeekers Marks will inure to the exclusive benefit of HomeSeekers. At
HomeSeekers' reasonable request, Jutvision will assist HomeSeekers with the
protection and maintenance of the HomeSeekers Marks. Jutvision may only use the
HomeSeekers Marks as expressly permitted herein. Jutvision agrees to use the
HomeSeekers Marks in a manner commensurate with the style, appearance and
quality of HomeSeekers' services and/or products bearing such marks.
5.4 Limitation on Grant of Rights. Except as expressly provided herein,
-----------------------------
neither party receives any other right or license to the technology or
intellectual property of the other party.
6. TERM AND TERMINATION
--------------------
6.1 Term. Unless earlier terminated as set forth below, this Agreement
----
will become effective upon the Effective Date and continue for a period of three
(3) years (the "Initial Term"). Thereafter, this Agreement will automatically
renew for successive one (1) year periods (each a "Renewal Term") unless either
party notifies the other in writing not less than sixty (60) days prior to the
end of the then-current term of its intention to terminate this Agreement as of
the end of such term.
6.2 Termination. This Agreement will terminate, without notice, (i) upon
-----------
the institution by or against either party of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of the
party's debts, (ii) upon either party's making an assignment of substantially
all of its assets for the benefit of creditors, or (iii) upon either party's
dissolution or cessation of business. HomeSeekers may terminate this Agreement
in the event technical problems or problems with the Jutvision Technology cause
Jutvision to materially fail
-8-
<PAGE>
to perform any of its obligations or undertakings under Section 2.2, and
Jutvision fails to remedy such default within ninety (90) days after being
notified by HomeSeekers of such failure.
6.3 Effects of Termination. Upon expiration or termination of this
----------------------
Agreement:
(a) Jutvision will cease all use of the HomeSeekers Marks;
(b) Commensurate with the quality of services provided prior to such
expiration or termination, Jutvision will continue to provide Production
Services and support to third parties who purchased such Production Services
prior to such expiration or termination;
(c) HomeSeekers will cease all use of the Jutvision Marks, the
Jutvision Technology and the Jutvision Images and shall purge all Jutvision
Technology and Jutvision Images from its servers; provided, however, that,
following any expiration or termination, the licenses granted above under
Sections 5.1 and 5.2 shall survive for a period of [*] thereafter with respect
to Jutvision for Java and Jutvision Images provided to HomeSeekers hereunder
prior to expiration or termination, to the extent that such Jutvision Images
accompany listings on the HomeSeekers Sites and such Jutvision for Java is
necessary to display such Jutvision Images.
(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
6.4 Survival of Certain Terms. The provisions of Sections 5.2(a),
-------------------------
5.3(a)(i), 5.3(b)(i), 5.4, 6.3, 6.4, 7, 8, 9, 10, 11.1, 11.2, 11.3, 11.4, 11.5,
11.7, 11.8, 11.9, 11.10 and 11.11, and the provisions of Exhibit A specified
therein to survive, 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
---------------
7.1 Definition. "Confidential Information" means any trade secrets,
----------
confidential data or other confidential information relating to or used in the
business of the other party (the "Disclosing Party"), that a party (the
"Receiving Party") may obtain from the Disclosing Party during the Term (the
"Confidential Information"), except as herein provided, and that is marked
"Confidential," "Proprietary" or in a similar manner to indicate its
confidential nature. Confidential Information may also include oral information
disclosed pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and confirmed in writing as
confidential within thirty (30) days after its oral disclosure, which is marked
in a manner to indicate its confidential nature and delivered to the Receiving
Party. The terms of this Agreement and the existence of this Agreement will
constitute Confidential Information.
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
-9-
<PAGE>
7.2 General. Subject to Section 11.2, 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. Without limiting the
foregoing, subject to Section 11.2, 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.
7.3 Exceptions. The foregoing restrictions will not apply to information
----------
that (i) is known to the Receiving Party at the time of disclosure by the
disclosing party; (ii) is or becomes publicly known through no wrongful act of
the Receiving Party; (iii) is rightfully received from a third party without
restriction; (iv) is independently developed by the Receiving Party; (v) has
been approved for release by written authorization of the Disclosing Party; (vi)
is not marked or similarly designated as confidential, and is provided for a
purpose or in a manner that reasonably contemplate, or would naturally be
understood to contemplate, disclosure or use by others; and (vii) is disclosed
pursuant to a valid order of any governmental authority provided that the party
intending to make disclosure in such circumstances has given the other party
prompt notice prior to making such disclosure so that such party may seek a
protective order or other appropriate remedy prior to such disclosure.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
8.1 Each party represents and warrants to the other that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation set forth above and
is duly qualified and authorized to do business as a foreign corporation in good
standing in all jurisdictions in which the nature of its assets or business
requires such qualification;
(b) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
(c) its execution, delivery and performance of this Agreement have
been duly and properly authorized by all necessary actions and this Agreement
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms; and
(d) its execution, delivery and performance of this Agreement will
not, with or without the giving of notice or passage of time, or both, conflict
with, or result in a default or loss of rights under, any provision of its
certificate of incorporation or by-laws or any other material agreement or
understanding to which it is a party or by which it or any of its material
properties may be bound.
8.2 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE
----------
ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A
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<PAGE>
PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
9. INDEMNIFICATION
---------------
9.1 Each party (the "Indemnifying Party") will indemnify, defend and hold
harmless the other party and its officers, directors, agents, employees,
successors and permitted assigns (hereinafter collectively the "Indemnified
Party") from and against any and all losses, claims, suits, proceedings,
liabilities, expenses (including reasonable attorneys' fees and expenses),
causes of action, damages and costs (collectively "Claims") arising out of or in
connection with the breach, potential breach or inaccuracy of, or failure to
comply with, any of the representations and warranties contained in Section 8 on
the part of the indemnifying Party.
9.2 Any Indemnified Party entitled to indemnification under this Section
will give prompt notice to the indemnifying Party of any Claim with respect to
which it seeks indemnification, but the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability except to the
extent that it is actually prejudiced by such delay. The Indemnifying Party
shall assume, at its sole cost and expense, the defense of such Claim with
counsel reasonably satisfactory to the Indemnified Party. The Indemnifying
Party will not be subject to any liability for any settlement made without its
consent. The Indemnifying Party shall not, without consent of the Indemnified
Party, effect any settlement or discharge or consent to the entry of any
judgment, unless such settlement or judgment includes as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
general release from all liability in respect of such claim or litigation.
10. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 9 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION
2.3 OR 7, 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.
11. GENERAL PROVISIONS
------------------
11.1 Independent Contractors. The relationship of Jutvision and
-----------------------
HomeSeekers established by this Agreement is that of independent contractors,
and nothing contained in this Agreement will be construed to (i) give either
party the power to direct and control the day-to-day activities of the other,
(ii) constitute the parties as partners, joint venturers, co-owners or otherwise
as participants in a joint undertaking, or (iii) allow either party to create or
assume any obligation on behalf of the other for any purpose whatsoever. All
financial and other obligations associated with a party's business are the sole
responsibility of that party.
-11-
<PAGE>
11.2 Press Plans. The parties agree to participate in a joint press
-----------
announcement regarding the relationship entered into hereunder that will take
place on a mutually agreed upon date. The parties shall agree to the form and
content of the joint press release. Either party may issue its own press
release, subject to the other party's prior approval, not to be unreasonably
withheld, of the content within the release. Each party will furnish its
written acceptance of or objection to any proposed announcement within forty-
eight (48) hours.
11.3 Governing Law. This Agreement will be governed by and construed under
-------------
the laws of the State of California without reference to conflict of laws
principles.
11.4 Entire Agreement. This Agreement 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.
11.5 Notices. 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 below or at such other address for which such
party gives notice hereunder. Delivery will be deemed effective three (3) days
after deposit with postal authorities.
If to HomeSeekers: Chief Executive Officer
HomeSeekers.com, Inc.
2241 Park Place
Suite E
Minden, NV 89423-8602
If to Jutvision: Chief Executive Officer
Jutvision Corporation
124 University Avenue
Suite 202
Palo Alto, CA 94301
11.6 Force Majeure. 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.
11.7 Non-Assignability and Binding Effect. Except as expressly provided
------------------------------------
herein, this Agreement may not be assigned or transferred, or may any right or
obligation hereunder be assigned or delegated, to a third party by either party
without the prior written consent of the other party hereto. Notwithstanding
the foregoing, 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. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
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<PAGE>
11.8 Modification; Waiver. 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.
11.9 Headings. The headings to the sections and subsections of this
--------
Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
11.10 Severability. In the event that it is determined by a court of
------------
competent jurisdiction as part of a final nonappealable ruling, government
action or binding arbitration, that any provision of this Agreement (or part
thereof) is invalid, illegal, or otherwise unenforceable, such provision will be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement will remain in full force and
effect and bind the parties according to its terms. To the extent any provision
(or part thereof) cannot be enforced in accordance with the stated intentions of
the parties, such provision (or part thereof) will be deemed not to be a part of
this Agreement.
11.11 Counterparts; Facsimile Signatures. This Agreement may be executed
----------------------------------
by exchange of signature pages by facsimile and/or in two or more counterparts,
each of which will be deemed an original.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
JUTVISION CORPORATION HOMESEEKERS.COM, INC.
By:__________________________ By:__________________________
Title:_______________________ Title:_______________________
Date:________________________ Date:________________________
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<PAGE>
EXHIBIT A
---------
Jutvision for Java License Agreement
If you download, install, copy, or in any other way obtain Jutvision class files
or software, you indicate that you consent to the terms listed.
Jutvision Corporation ("JUTVISION")
Jutvision(R) for Java License Agreement
By installing or using these Jutvision for Java Class Files and/or Jutvision
Demo (the "Software"), you indicate your agreement to the terms of this license
agreement. If you do not agree to the terms herein, you are not authorized to
copy or use the Software.
Limited Warranty and Limitation of remedies:
NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JUTVISION
CORPORATION EXPRESSLY DISCLAIMS ANY WARRANTY FOR SOFTWARE. THE SOFTWARE AND ANY
RELATED DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING
OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.
NO LIABILITY FOR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
NEITHER JUTVISION CORPORATION NOR ITS CLIENTS SHALL BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY
LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THIS SOFTWARE, EVEN IF
JUTVISION CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME STATES/PROVINCES JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
CUSTOMER REMEDIES. JUTVISION CORPORATION'S ENTIRE LIABILITY AND YOUR EXCLUSIVE
REMEDY SHALL NOT EXCEED THE PRICE PAID FOR THE SOFTWARE PRODUCT.
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE JUTVISION SOFTWARE LICENSE
TERMS SET FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE
LICENSE TERMS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU ARE NOT AUTHORIZED
TO USE THIS SOFTWARE.
-14-
<PAGE>
JUTVISION(R) FOR JAVA CLASS FILE LICENSE TERMS
The following License Terms govern your use of the accompanying Jutvision for
Java Class Files ("Software").
License Grant. JUTVISION grants you a license to use one copy of the Software.
"Use" means storing, loading, installing, executing or displaying the Software.
You may not modify the Software or disable any licensing or control features of
the Software.
Ownership. The Software is owned and copyrighted by JUTVISION. Your license
confers no title to, nor ownership in, the Software and is not a sale of any
rights in the Software.
Copies and Adaptations. You may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software. You must reproduce all copyright notices in the
original Software on all copies or adaptations. You may not copy the Software
onto any network. Class files are only permitted to be transferred when they
are called on by a "requesting" server in the normal course of Java Applet
execution. Distribution of the Jutvision for Java Class files is not permitted
File Format. The Software may only be used to read .jut files, a file format
proprietary to JUTVISION CORPORATION.
LINKS, REPRESENTATION & SPLASH SCREEN: Any Web site that uses the Software must
provide a visible link to either Jutvision scenes on that site, or directly to
http://www.jutvision.com. The image displayed when loading each scene
("JUTVISION SPLASH SCREEN") may not be tampered with in any way and must be
fully visible upon loading of each Jutvision scene. In no way may the JUTVISION
SPLASH SCREEN and/or Jutvision logo be obstructed by any other images, frames,
tables or any other HTML or JavaScript code.
NO DISASSEMBLY OR DECRYPTION: You may not disassemble or decompile the Software
including single Jutvision Java Class files under any circumstances. The
disassembly or decryption of any Jutvision Java Class file will result in a
breach of this agreement.
TRANSFER. Your license will automatically terminate upon any transfer of the
Software other than the copying and server rights noted above.
TERMINATION. JUTVISION CORPORATION may terminate your license upon notice for
failure to comply with any of these License Terms. Upon termination, you must
immediately destroy the Software, together with all copies, adaptations and
merged portions in any form. Failure to do so will result in immediate legal
action.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy
or adaptation in violation of any applicable laws or regulations.
-15-
<PAGE>
U.S GOVERNMENT RESTRICTED RIGHTS: The Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun 1987)(or any equivalent
agency regulation or contract clause), whichever is applicable. You have only
those rights provided for such Software and any accompanying documentation by
the applicable FAR or DFARS clause or the Jutvision Corporation standard
software agreement for the product involved.
If you have any questions regarding this Agreement or if you wish to request any
information from Jutvision Corporation, please contact the firm in writing:
Jutvision Corporation
20 Toronto Street
Suite 520
Toronto Ontario
Canada
M5C 2B8
Fax: 416-368-3086
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<PAGE>
EXHIBIT B
HomeSeekers Marks
HomeSeekers.com
RentSeekers.com
CommercialSeekers.com
LandSeekers.com
ResortSeekers.com
EstateSeekers.com
ReoSeekers.com
NewHomeSeekers.com
CabinSeekers.com
GolfSeekers.com
BoatSeekers.com
TruckSeekers.com
AgentSeekers.com
InsuranceSeekers.com
AutomotiveSeekers.com
OfficeSeekers.com
EmployementSeekers.com
FoodSeekers.com
-17-
<PAGE>
EXHIBIT 10.9
EXECUTION DRAFT
DISTRIBUTION AGREEMENT
----------------------
THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of May 10,
1999 (the "Effective Date"), between bamboo.com, Inc., a Delaware corporation
with an office located at 124 University Avenue #202, Palo Alto, CA 94301
("bamboo.com"), and Homes.com, a division of PCL Media Limited, a Florida
corporation with an office located at 1600 Capital Circle SW, Tallahassee, FL
32310 ("Company").
Bamboo.com uses the Bamboo.com Technology and provides the Production
Services. Bamboo.com desires to provide virtual tour technology and Production
Services for the Company Site. 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
-----------
1.1 "Bamboo.com Image" means an electronic image of a property
----------------
produced by or on behalf of bamboo.com.
1.2 "Bamboo.com Technology" means software and hardware, including the
---------------------
Bamboo.com for Java Software, used to capture, process and view Bamboo.com
Images.
1.3 "Basic Package" means up to four scenes captured at a designated
property, converted to a corresponding number of Bamboo.com Images, and linked
to Company Site.
1.4 "Customer" means any realtor, real estate Customer, real estate
--------
agent, property manager or any other agent or representative acting in a similar
capacity, whether an individual or some other type of entity, representing a
seller or renter of a property.
1.5 "Company Originated Order" means any order received by bamboo.com
------------------------
for Production Services via telephone, facsimile or electronic or paper order
form from a Customer referencing Company's assigned sales origination partner
code.
1.6 "Company Site" means the collection of HTML documents residing on
------------
servers operated by or for Company or its affiliate and accessible on or after
the Effective Date by Customers or the public via the Internet, including those
currently accessible at the URL http://www.homes.com, www.preferredpages.com and
-------------------- ----------------------
Company private label sites and OEM websites.
1.7 "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 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.
1.8 "Initial Linking Date" means the date on which bamboo.com will
--------------------
commence providing Production Services and Company will begin linking the
Company Site to the Bamboo.com Images under this Agreement.
1.9 "Net Revenues" means the gross amount received by bamboo.com from
------------
Customers for sales of [*] 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 collections determined in accordance with GAAP.
1.10 "Production Services" means the services provided by or on behalf
-------------------
of bamboo.com.
1.11 "Service Provider Network" means the network of individuals
------------------------
throughout our service area with whom bamboo.com has entered into agreements to
capture images at designated sites on bamboo.com's behalf.
1.12 "Term" means the Initial Term of this Agreement and the Renewal
----
Terms, if any, as set forth in Section 6.
1.13 "Transaction Fee" means the quarterly fee bamboo.com will pay to
---------------
Company during the Term based on sales of [*] as provided in Section 4.1.
1.14 "Virtual Tour Images" means 360, three-dimensional, virtual
-------------------
reality, virtual tour, virtual walkthrough or other similar images, or
production services for such images.
2. PROVISION OF PRODUCTION SERVICES;
--------------------------------
2.1 Sales and Billing. Bamboo.com will be responsible for receiving
-----------------
and fulfilling orders. Bamboo.com will assume all costs and responsibility for
invoicing and collecting revenues for all sales, provided, however, that
bamboo.com does not assume the risk of collection. Company will be responsible
for, and shall work with bamboo.com regarding, providing a mechanism for
Customers to order Production Services at the same time listings are created on
the Company Site.
2.2 Image Capturing, Processing and Linking. Bamboo.com will have sole
---------------------------------------
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 Bamboo.com Images. Company will permit linking of the Company
Site to Bamboo.com Images for both Rental Properties (as defined below) and Sale
Properties (as defined below), and the parties will use best efforts to work
together to expeditiously implement within 45 days of the Effective Date, and
maintain throughout the Term, a system whereby Company will be capable of
linking the Company Site to Bamboo.com Images.
2.3 Preferred Vendor. Bamboo.com will be the preferred provider of
----------------
Virtual Tour Images for the Company Site for rental properties ("Rental
Properties"). Company agrees to give bamboo.com preferred vendor status in
Company's rental-related marketing materials and other direct sales efforts,
whether printed, oral or on the Company Site, by listing bamboo.com first before
listing any other providers of virtual tours. Bamboo.com will be a nonexclusive
provider of Virtual Tour Images for the Company Site for residential sale
properties ("Sale Properties").
2.4 Agreement [*]. Within the first nine (9) months following the
-------------
Effective Date, and in any event [*], and prior to Company's [*] with any third
party Virtual Tour Images provider with
________________
*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
respect to [*], Company agrees to [*] with bamboo.com for the [*] Company by
bamboo.com with respect to [*].
3. MARKETING AND PROMOTION
3.1 Company. Subject to bamboo.com's ongoing approval, Company agrees
-------
to consistently promote bamboo.com as Company's preferred provider of Virtual
Tour Images for Rental Properties and nonexclusive provider of Virtual Tour
Images for Sale Properties, and to market, promote and facilitate orders of the
Production Services, as follows:
(a) Company Site. Company agrees to prominently market and
------------
promote the Production Services on the Company Site. Company will provide the
capability for Customers to order Production Services on the Member Access Panel
which is the user interface for customers to manage and access their content on
the Company Site. Additionally, Company will provide a description of the
Production Services in the appropriate area(s) of the Company Site, including
use of the bamboo.com logo. Description and logo will be at least the same size
and positioning as other partner descriptions and logos. Such logo, when clicked
on, will link directly to an electronic order form permitting Customers to
submit orders for Production Services for both Sales Properties and Rental
Properties to bamboo.com via the Internet.
(b) Gallery of Bamboo.com Images. Company agrees to include on
----------------------------
the Company Site (i) Bamboo.com Images produced on behalf of Customers for Sales
Properties in its current gallery for residential properties, and (ii) a co-
branded gallery of Bamboo.com Images produced on behalf of Customers for Rental
Properties (the "Rental Gallery"). Each page of the Rental Gallery will include
a Bamboo.com Mark (as defined below) that, when clicked on, links directly to an
electronic order form permitting Customers to submit orders for Production
Services for Rental Properties to bamboo.com via the Internet.
(c) Introduction of Services. Within sixty (60) days of the
------------------------
Effective Date, Company will send an announcement, reasonably satisfactory to
bamboo.com, highlighting the availability and features of the Production
Services to its Customers, OEMs, Resellers, and Associate Publishers via its
current communications including e-mail, newsletters, Company Site, and general
mailings.
(d) Print Advertising. To the extent Company creates and
-----------------
distributes print advertising to Customers and potential Customers, including
without limitation print advertising in magazines, flyers, newsletters and
general mailings, Company will include, as appropriate and from time to time, in
such advertising a bamboo.com logo and a brief, suitable reference to the
availability of the Production Services. Marketing materials for Production
Services will be included in the materials sent to Customers for tips and
training information ("Member Kit") for Rental Properties versions of the
Preferred Pages product. Marketing materials for Production Services may be
included, as deemed appropriate by Company, in the Member Kit for Sales
Properties versions of the Preferred Pages product.
(e) Email and Direct Marketing. Company agrees to include in
--------------------------
email and direct marketing that it generates and sends to Customers and
potential Customers, as appropriate and from time to time a section, reasonably
satisfactory to bamboo.com, highlighting the availability and features of the
Production Services. Bamboo.com agrees to include in email and direct marketing
that it generates and sends to Customers and potential Customers, as appropriate
and from time to time a section, reasonably satisfactory to Company,
highlighting the availability and features of Company products and services.
(f) Seminars and Trade Shows. Company or its sales
------------------------
representatives will distribute marketing materials created by bamboo.com that
promote the Production Services to rental Customers at (i) regional trade shows
attended by Company and (ii) seminars, presentations, training sessions and
follow-up meetings sponsored by Company. Company will ensure that any third-
party speaker hired by Company to promote rental-related Web products and
services will mention, in a positive manner, bamboo.com when referencing Virtual
Tour Images and Internet marketing.
(g) Joint Press Release. Company will participate with bamboo.com
-------------------
in issuing (i) a joint press release on or around the Effective Date regarding
the relationship established through this Agreement and (ii) a joint press
release on or around the date the service is launched. Each party shall agree on
the form and content of such press release and will furnish its written
acceptance of, or comments on, the proposed announcement within 48 hours;
otherwise such proposed announcement 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.
3.2 Additional Obligations. Bamboo.com and Company agree to discuss
----------------------
joint marketing opportunities, and the parties will use reasonable efforts to
cooperate in any such joint marketing efforts as they may mutually agree upon.
Each party will assign a project manager to act as the primary liaison with
respect to the relationship.
4. FEES
4.1 Transaction Fees. During the Term, bamboo.com will pay quarterly
----------------
Transaction Fees to Company as follows:
(a) With respect to [*] fulfilled by bamboo.com during the Term
through which Bamboo.com Images are [*], bamboo.com will pay to Company [*]
collected from sales for which bamboo.com has received payment on during the
quarter. ;
(b) 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 bamboo.com distributes on
a promotional basis free of charge or at a discounted price.
4.2 Payment of Fees. Calculation of quarterly Transaction Fees will
commence immediately for the calendar month in which the Initial Linking Date
occurs. Bamboo.com will make all payments of Transaction Fees net thirty (30)
days from the end of each quarter. To the extent the parties have not
implemented a system to automatically track the originating Company Customer for
each order of Production Services, bamboo.com will include with each payment of
Transaction Fees a report stating such information for orders covered by such
payment.
4.3 Inspection of Records. Company will have the right, at its own
expense and not more than once in any twelve (12) month period, to authorize an
independent auditor reasonably
___________________
*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
<PAGE>
acceptable to both parties to inspect those accounting records of bamboo.com
necessary to verify the accuracy of fees paid or invoiced by bamboo.com under
the terms of this Agreement, provided that such independent auditor has executed
a confidentiality agreement with respect to such records that is reasonably
acceptable to bamboo.com. Such inspections will take place during bamboo.com's
normal business hours, upon not less than twenty (20) days' prior written to
bamboo.com and on a date mutually agreed upon by the parties. In the event any
such auditors find an underpayment in Transaction Fees paid to Company of more
than five percent (5%) of the total Transaction Fees due and payable to Company
for the period at issue, bamboo.com shall pay such shortfall to Company within
thirty (30) days and shall reimburse Company for the cost of such audit. In the
event such audit identifies an overpayment of Transaction Fees, Company shall
remit payment of the overpayment to bamboo.com within thirty (30) days of
written notification from bamboo.com.
5. PROPRIETARY RIGHTS
5.1 Bamboo.com Technology.
---------------------
(a) All Bamboo.com Images and Bamboo.com Technology,
whether or not produced for Customers and whether or not linked to the Company
Site, are, and at all times will remain, the exclusive property of bamboo.com,
and no provision of this Agreement implies any transfer to Company or Customers
of any ownership interest in any Bamboo.com Image or Bamboo.com Technology.
(b) Bamboo.com hereby grants to Company a nonexclusive,
worldwide, royalty-free, nontransferable license to include on the Company Site
links to Bamboo.com Images on bamboo.com's servers solely for the purposes
contemplated in this Agreement. The foregoing license does not include any right
to grant or authorize sublicenses.
5.2 Trademarks.
----------
(a) Bamboo.com owns and at all times will continue to
own the trademarks, service marks and/or trade names BAMBOO.COM and the
bamboo.com logo, as well as any name or mark bamboo.com may subsequently adopt
as a trade name or to designate the Production Services (collectively, the
"Bamboo.com Marks"), and Company will not take any actions inconsistent with
bamboo.com'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 bamboo.com 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,
bamboo.com hereby grants Company a nonexclusive, worldwide, royalty-free, fully
paid up, nontransferable right to use the Bamboo.com Marks, during the Term,
with bamboo.com's prior written approval, which bamboo.com will not unreasonably
withhold or delay, solely in connection with promotion and marketing and/or
financing of the Production Services and Company as provided in Section 3.
Subject to the restrictions set forth herein, Company hereby grants bamboo.com a
nonexclusive, worldwide, royalty-free, fully paid up, nontransferable right to
use the Company Marks, during the Term, solely in connection with promotion and
marketing and/or financing of the Production Services and bamboo.com. 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.
5.3 Limitation on Grant of Rights. Except as expressly provided
-----------------------------
herein, neither party receives any other right or license to the technology or
intellectual property of the other party.
6. TERM AND TERMINATION
--------------------
6.1 Term. Unless earlier terminated as set forth below, this
----
Agreement will become effective upon the Effective Date and continue for a
period of eighteen (18) months (the "Initial Term"). Thereafter, this Agreement
will be automatically renewed for successive one (1) year periods (each such
period a "Renewal Term") 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. Upon
termination, (i) Company and bamboo.com will cease all use of marks of the other
party and (ii) Company will cease all use of the Bamboo.com Technology and
Bamboo.com Images and will purge all such Bamboo.com Technology and Bamboo.com
Images from its servers, systems and products.
6.2 Termination for Breach. This Agreement will terminate in the
----------------------
event 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.
6.3 Survival of Certain Terms. The provisions of Sections
-------------------------
5.1(a), 5,2(a), 5.3, 6.1, 6.3, 7, 8, 9 and 10 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
---------------
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. REPRESENTATIONS AND WARRANTIES
------------------------------
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.
Page 3
<PAGE>
9. Indemnification by bamboo.com. Bamboo.com warrants that bamboo.com or its
affiliates own, or have sufficient interest in, bamboo.com's business to fulfill
bamboo.com's obligations under this Agreement. Bamboo.com shall defend or
settle, at its own expense, any claim made against Company or any of its
affiliates, and/or Company's Customers that bamboo.com's business and applicable
data infringes upon any United States patent, copyrights, trade secret or other
proprietary rights and shall indemnify and hold harmless Company, any of
Company's affiliated companies, and/or any of Company's Customers against any
final judgement including an award of attorney's fees that may be awarded by a
court of final jurisdiction against Company, any of Company's affiliated
companies, and/or Company's Customers as a result of the foregoing for all
costs, damages, losses, and expenses arising from a breach of the warranties set
forth in this Agreement.
10. Indemnification by Company. The Company warrants that Company or its
affiliates own, or have sufficient interest in, Company's business, Company
Marks and the Company Site as a compilation to fulfill Company's obligations
under this Agreement. Company shall defend or settle, at its own expense, any
claim made against bamboo.com or any of bamboo.com affiliates or customers that
Company's business, Company Marks, Company Site and applicable data infringes
upon any United States patent, copyrights, trade secret or other proprietary
rights and shall indemnify and hold harmless bamboo.com, any of bamboo.com's
affiliated companies, and/or any of bamboo.com's customers against any final
judgement including an award of attorney's fees that may be awarded by a court
of final jurisdiction against bamboo.com, any of bamboo.com's affiliated
companies, and/or bamboo.com's customers as a result of the foregoing for all
costs, damages, losses, and expenses arising from a breach of the warranties set
forth in this Agreement.
11. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS
DESCRIBED IN SECTION 2.3 OR 7, 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.
12. GENERAL PROVISIONS
------------------
12.1 Notices. 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 at the top of this Agreement. Delivery
will be deemed effective three (3) days after deposit with postal authorities.
12.2 Miscellaneous. 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
bamboo.com and Company established by this Agreement is that of independent
contractors. 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. Notwithstanding anything to the contrary herein, in the event that
[*] in such event this [*] The parties' rights and obligations will bind and
inure to the benefit of their respective successors, heirs, executors and
administrators and permitted assigns. Company shall have the right to substitute
replacement tradenames and trademarks during the term of this Agreement. 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.
BAMBOO.COM, INC. HOMES.COM, a division of PCL Media Limited
By:____________________________ By:_______________________________
Name:__________________________ Name:_____________________________
Title:_________________________ Title:____________________________
Date:__________________________ Date:_____________________________
______________________
*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 4
<PAGE>
EXHIBIT 10.18
SERVICE PROVIDER AGREEMENT
This Service Provider Agreement (the "Agreement") is made and entered into
this __ day of __________, 199_, by and between JUTVISION CORPORATION, a
corporation under the laws of the Dominion of Canada ("Jutvision") located at
124 University Avenue, Suite 202, Palo Alto, CA 94301, and TBI IMAGING, INC., a
corporation incorporated under the laws of the State of Illinois ("TBI") located
at P.O. Box 278, Lincolnshire, IL 60069.
WHEREAS, Jutvision produces Virtual Tours for display on the World Wide Web
(the "Web");
WHEREAS, the production of Virtual Tours for the Web requires the capturing
of video content;
WHEREAS, Jutvision desires to retain the services of TBI as an independent
contractor to capture video content;
WHEREAS, TBI is an independent business and desires to provide such
service pursuant to the terms set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Definitions
-----------
1.1. "Basic Order" shall mean a request by Jutvision for TBI to capture
four (4) scenes at the site specified in the Order.
1.2. "Broker" shall mean any person working with, representing or
associated with the owner of the property in connection with a real estate
transaction.
1.3. "Dispatch System" shall mean the process of distributing Orders
directly to the JSPs via a text message to the cell phones of each JSP.
1.4. "Jutvision Service Provider" or "JSP" means the individual who
captures the video image of a property specified in the Order on behalf of TBI.
1.5. "Order" shall mean a request by Jutvision for TBI to perform the
Services with respect to a specific property. Each Order shall consist of the
name of the Ordering Party requesting the video image capture, that Ordering
Party's name and phone number and the address of the property to be video taped.
1.6. "Ordering Party" shall mean the person who places the Order with
Jutvision.
_______________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
1
<PAGE>
1.7. "Seller" shall mean the owner, or someone acting on behalf of the
owner, of the property being serviced pursuant to this Agreement.
1.8. "Test Tape" shall mean the videotape submitted by a potential JSP
pursuant to the Training Manual.
1.9. "U.S. Address" shall mean Jutvision Corp., 124 University Ave., Palo
Alto, CA, 94301
1.10. "Training Manual" shall mean the materials attached to this
Agreement as Exhibit 1, including a training videotape prepared by Jutvision and
---------
any additions to those materials that Jutvision may make from time to time.
1.11. "Virtual Tour" shall mean a panoramic scene for display on the Web.
1.12. "Virtual Tour Business Activities" shall mean all aspects of
providing a full-service, production solution for the capture, processing and
posting of panoramic images on the Web created using the Jutvision Equipment
listed on Schedule D.
2. Independent Contractor Relationship
-----------------------------------
TBI is an independently established business and desires to contract with
Jutvision to perform services pursuant to this Agreement as an independent
contractor. TBI further agrees that neither TBI nor any employees or
subcontractors of TBI is entitled to unemployment, workers compensation or other
benefits in any event pursuant to TBI's provision of the Services.
3. Services Provided by TBI
------------------------
3.1. Jutvision engages TBI, and TBI shall cause its JSPs, to perform all
services and responsibilities set forth in Schedule A, as such schedule may be
----------
reasonably amended from time to time upon the mutual written agreement of the
parties, and elsewhere in this Agreement (the "Services"). TBI accepts such
engagement and agrees, during the term of this Agreement and thereafter, as
specified herein, to perform the Services in a professional and timely manner,
to furnish its best skill and judgment in performing the Services, to devote
sufficient time and resources to performing the Services, and to use best
efforts to comply with the project schedules established by Jutvision herein,
and from time to time. If TBI is unable to perform the Services, it shall
notify Jutvision of its inability to perform the Services as soon as it is aware
of that inability.
3.2. TBI shall cause each of its JSPs to sign and deliver to Jutvision a
Non-Disclosure Agreement in the form attached hereto as Exhibit 2.
---------
2
<PAGE>
3.3. The JSPs shall not perform any other services, other than the Services
or any other services agreed to by Jutvision and TBI, during the performance of
the Services, except Multiple Listing Service real estate photographic services
of exterior still images of real estate properties.
3.4. The JSPs shall not accept gratuities from the Seller, buyer, Broker or
any other individual requesting or involved in the transactions contemplated in
this Agreement.
3.5. From time to time, at the agreement of the parties, TBI shall
participate in, and cause its JSPs to participate in, marketing and promotional
programs with regard to the Services, Jutvision or Virtual Tours. Such
participation shall be of a nature which does not materially or significantly
add to the time or effort required of TBI or its JSPs in the performance of the
Services.
4. Term of Agreement
-----------------
4.1. This Agreement takes effect at 12:00 A.M. EST, __________, 19__, and,
unless sooner terminated as provided herein, will continue in effect for a
period of two years ending at 11:59 P.M. EST, ____________, 19__. This
Agreement may be renewed for an additional term of two years at Jutvision's or
TBI's option, which option shall be exercised no later than 30 days prior to the
date of the termination of the initial term. This Agreement may be further
extended by mutual written agreement between Jutvision and TBI.
5. Fees
-----
5.1. Jutvision agrees to pay the fees specified on Schedule B pursuant to
----------
the terms of this Agreement.
5.2. Schedule B shall not be changed, modified, supplemented or amended
----------
except by express written agreement signed by Jutvision and TBI.
6. Billing
-------
6.1. TBI shall produce and send an invoice to Jutvision on the 15th and
last day of each month detailing the Fees owing to TBI. Jutvision will pay TBI
for its services within thirty (30) days after the date of TBI's invoice.
6.2. Invoices unpaid by Jutvision shall be charged interest at the rate of
one and one-half percent (1.5%) per month, or eighteen percent (18%) per annum,
calculated daily, compounded annually.
6.3. In the event that Jutvision disputes the validity of an invoice or
part of an invoice rendered by TBI, Jutvision shall continue to pay any
undisputed amounts but shall not pay the amount in dispute. Jutvision shall not
incur any interest charges for the
3
<PAGE>
disputed amount(s) from the date Jutvision notifies TBI of Jutvision's
disagreement with TBI's invoice. In the event of a dispute, the parties shall
confer within ten (10) days for the purpose of resolving the dispute. If the
dispute cannot be resolved within ten (10) days from the date the parties
confer, either party may request arbitration pursuant to Section 16 of this
Agreement. To the extent the arbitration is resolved in favor of TBI, Jutvision
shall owe interest, pursuant to paragraph 6.2, on the amounts awarded to TBI
from the date ten (10) days after the parties met to confer.
7. Service Area
------------
7.1. TBI agrees to perform the Services in the geographical area(s) (the
"Service Area") specified in Schedule C, as may be amended from time to time by
----------
the parties.
7.2. From time to time, Jutvision may expand the Service Area to include
additional geographical areas. Upon notification by Jutvision, TBI shall take
all necessary action to provide the Services in the Service Area, as expanded,
including identifying to Jutvision an individual or individuals suitable to
perform the Services within one week of the time Jutvision notifies TBI of its
desire to expand the Service Area.
8. Equipment
---------
8.1. Jutvision shall provide, at Jutvision's cost, the equipment specified
on Schedule D (the "Jutvision Equipment") in quantities adequate for the
----------
performance of the Services by TBI. At all times Jutvision maintains ownership
of the Jutvision Equipment and can recall any or all of the Jutvision Equipment
at any time.
8.2. License Grant
-------------
8.2.1. Grant. Following Jutvision's provision of the Jutvision
-----
Equipment to TBI and its JSPs, and subject to all the terms and conditions of
this Agreement, Jutvision hereby grants to TBI and its JSPs a limited, royalty-
free, personal, non-transferable, non-exclusive, non-sublicensable license to
the Jutvision Equipment during the term of this Agreement solely for the use of
the Jutvision Equipment in connection with the provision of the Services, and
not for or on behalf of any third party.
8.2.2. No Sale. The parties acknowledge and agree that: (i) all
-------
Jutvision Equipment provided by Jutvision hereunder is licensed in accordance
herewith and not sold; and (ii) as between Jutvision and TBI and its JSPs,
subject only to the license grants expressly made herein, Jutvision is the sole
owner of all right, title and interest in and to the Jutvision Equipment,
including without limitation, all intellectual property and proprietary rights
therein and thereto.
4
<PAGE>
8.2.3. No Modification or Reverse Engineering. Except as otherwise
--------------------------------------
expressly permitted by applicable law, TBI and its JSPs shall not modify,
disassemble or in any way reverse engineer, the Jutvision Equipment or any
portion, derivative or version thereof or permit any third party to do so.
8.2.4. Termination. The license granted in this section shall
-----------
immediately terminate upon any expiration or termination of this Agreement.
8.3. Jutvision shall pay for all Equipment repair costs associated with
normal wear and tear. If any of the Jutvision Equipment needs repair, TBI or
one of its employees, agents, contractors or subcontractors shall be responsible
for sending or delivering, at Jutvision's cost, the non-functioning Jutvision
Equipment to Jutvision at its U.S Address. Upon receiving the non-functioning
Jutvision Equipment, Jutvision will send TBI, or the JSP identified by TBI as
needing the equipment, replacement Jutvision Equipment. The Training Manual
details an alternative procedure acceptable to Jutvision for the shipment of
Equipment.
8.4. TBI shall pay for all repair and delivery costs associated with the
repairs that do not result from normal wear and tear, including the repair of
damage caused by the negligence of TBI or one of its employees, agents,
contractors or subcontractors or any modification of the equipment by TBI or one
of its employees, agents, contractors or subcontractors. If any Jutvision
Equipment is lost, stolen or damaged while in the possession of TBI, its
employees, agents, contractors or subcontractors, TBI shall pay, within 30 days,
the replacement cost of such Jutvision Equipment to Jutvision. The cost of
replacement shall be the cost of purchasing replacement equipment as specified
on Schedule D. If TBI fails to pay for the lost, stolen or damaged equipment
----------
within 30 days, then Jutvision may deduct those costs from its next payments to
TBI.
8.5. WARRANTY DISCLAIMER
--------------------
THE JUTVISION EQUIPMENT AND ANY OTHER MATERIALS PROVIDED HEREUNDER TO TBI AND TO
ITS JSPS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. JUTVISION MAKES
NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO
THE JUTVISION EQUIPMENT OR ANY OTHER MATERIALS PROVIDED TO TBI OR TO ITS JSPS
UNDER THIS AGREEMENT. SPECIFICALLY, JUTVISION DOES NOT WARRANT THAT THE
JUTVISION EQUIPMENT WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED
MANNER. TO THE GREATEST EXTENT ALLOWED BY LAW, JUTVISION SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
(EVEN IF JUTVISION HAD BEEN INFORMED OF SUCH PURPOSE), AND NONINFRINGEMENT WITH
RESPECT TO THE JUTVISION EQUIPMENT AND ANY SUCH OTHER MATERIALS AND WITH RESPECT
TO THE USE OF ANY OF THE FOREGOING.
5
<PAGE>
9. Indemnification
---------------
9.1 TBI shall indemnify, and hold harmless Jutvision from any and all
damages, liabilities, costs and expenses (including reasonable attorneys' fees)
incurred by Jutvision arising from or relating to (i) TBI's use of the Jutvision
Equipment or any services provided by TBI hereunder and (ii) any breach by a JSP
of this Agreement. Jutvision shall promptly notify TBI in writing of any such
claim and promptly tender the control of the defense and settlement of any such
claim to TBI at TBI's expense and with TBI's choice of counsel. Jutvision shall
cooperate with TBI, at TBI's expense, in defending or settling such claim and
Jutvision may join in the defense with counsel of its choice at its own expense.
9.2 Jutvision shall indemnify, and hold harmless TBI from any and all
damages, liabilities, costs and expenses (including reasonable attorneys' fees)
incurred by TBI arising from or relating to Jutvision's action or omissions. TBI
shall promptly notify Jutvision in writing of any such claim and promptly tender
the control of the defense and settlement of any such claim to Jutvision at
Jutvision's expense and with Jutvision's choice of counsel. TBI shall cooperate
with Jutvision, at Jutvision's expense, in defending or settling such claim and
TBI may join in the defense with counsel of its choice at its own expense.
9.3 Jutvision requires each JSP to be bonded in the amount of at least
$2500. Upon the mutual agreement of the parties, the parties may alter the
amount and nature of the bond. Maintenance of such a bond shall in no way be
interpreted as relieving TBI or its JSPs of any responsibility under this
Agreement. Jutvision requires each potential JSPs to permit Jutvision to
perform, or cause to be performed, a background check on that individual before
the individual can begin to fulfill Orders.
10. Confidential Information
------------------------
10.1. Definition. The term "Confidential Information" shall mean any
----------
information disclosed by one party to this Agreement (the "Disclosing Party") to
the other party to this Agreement (the "Receiving Party") in connection with
this Agreement which, if in written, graphic, machine-readable or other tangible
form, is marked as "Confidential" or "Proprietary," or which, if disclosed
orally, is identified at the time of initial disclosure as confidential and such
identification is reduced to a writing delivered to the Receiving Party within
thirty (30) days of such oral disclosure. Without limiting the foregoing, the
terms and conditions of this Agreement shall be considered Confidential
Information.
10.2. Exclusions. Confidential Information shall exclude information
----------
that: (a) was independently developed by the Receiving Party without any use
of the Disclosing Party's Confidential Information or by the Receiving Party's
employees or other agents (or independent contractors hired by the Receiving
Party) who have not been exposed to the Disclosing Party's Confidential
Information; (b) becomes known to the Receiving Party, without restriction, from
a source other than the Disclosing Party without breach of
6
<PAGE>
this Agreement and that had a right to disclose it; (c) was in the public domain
at the time it was disclosed or becomes in the public domain through no act or
omission of the Receiving Party; or (d) was rightfully known to the Receiving
Party, without restriction, at the time of disclosure.
10.3. Compelled Disclosure. If a Receiving Party is, or believes that it
--------------------
will be, compelled by a court or other authority to disclose Confidential
Information of the Disclosing Party, it shall give the Disclosing Party prompt
notice so that the Disclosing Party may take steps to oppose such disclosure.
10.4. Obligations. The Receiving Party shall treat as confidential all of
-----------
the Disclosing Party's Confidential Information and shall not disclose such
Confidential Information to a third party except as expressly permitted under
this Agreement. Without limiting the foregoing, the Receiving Party shall use
at least the same degree of care which it uses to prevent the disclosure of its
own confidential information of like importance, but in no event less than
reasonable care, to prevent the disclosure of the Disclosing Party's
Confidential Information.
11. [*]
In view of the fact that any activity of TBI in violation of the terms
hereof would adversely affect Jutvision and its subsidiaries, and to preserve
the goodwill associated with Jutvision's business, TBI hereby agrees to the
following [*]:
11.1. TBI hereby agrees that during the term of this Agreement and during
the period commencing on the date this Agreement is terminated for any reason
and ending on the date which is the third anniversary of the date thereof [*],
TBI will not, without the express written consent of Jutvision, directly or
indirectly, [*] Jutvision, or its subsidiaries or affiliates, or currently
proposed [*], or such [*]. For the purposes of this Section 11.1, [*] shall
refer to those [*] that are created, or which the opportunity for is created,
directly through the provision of Virtual Tours for the Web. Notwithstanding the
foregoing, [*] shall not contravene this Section 11.1.
11.2. In the event TBI determines to [*] or begin negotiations or
discussions of [*], upon such event, TBI shall notify Jutvision and Jutvision
shall have the exclusive right to [*] for a period of thirty (30) days after the
date of receipt of such notice. In the event Jutvision and TBI are unable to
come to an agreement as to [*] within such thirty (30) days and after such
period (i) TBI [*], or (ii) TBI determines to [*], TBI shall notify Jutvision
upon [*] and Jutvision shall have the exclusive right of first refusal [*].
11.3. For purposes of this Agreement, the "Acquisition" of a party shall
mean; (i) a merger, consolidation or other reorganization, if the individuals
and entities who were stockholders of the party immediately prior to the
effective date of the transaction
_______________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
7
<PAGE>
have "beneficial ownership" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of less than fifty percent (50%) of the total
combined voting power for election of directors (or their equivalent) of the
surviving entity following the effective date of the transaction; (ii)
acquisition by any entity or group of direct or indirect beneficial ownership in
the aggregate of securities of the party then issued and outstanding
representing fifty percent (50%) or more of the total combined voting power of
the party; or (iii) a sale of all or substantially all of the party's assets.
11.4. For purposes of this Agreement, any reference to the subsidiaries of
Jutvision shall be deemed to include all entities directly or indirectly
controlled by it through an ownership of more than fifty percent (50%) of the
voting interests. The term "affiliate" shall mean, with respect to any person
or entity, any person or entity that directly or indirectly controls, is
controlled by or is under common control with such person or entity. The term
"person" shall mean an individual, a corporation, an association, a partnership,
a limited liability company, an estate, a trust, and any other entity or
organization.
11.5. [*] shall expire upon the bankruptcy or insolvency of Jutvision or
upon a breach by Jutvision of the terms of this Agreement.
12. Jutvision Exclusivity
---------------------
12.1. Jutvision shall use TBI exclusively within the Service Areas listed
in Schedule C for the provision of the Services. From time to time, upon the
----------
parties' written agreement, the parties may change, modify, supplement or amend
Schedule C.
- ----------
13. LIMITATION OF LIABILITY
-----------------------
13.1. IN NO EVENT WILL JUTVISION BE LIABLE FOR ANY LOSS OF PROFITS, LOSS
OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE JUTVISION EQUIPMENT OR ANY
OTHER MATERIALS PROVIDED BY JUTVISION HEREUNDER, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, AND EVEN IF JUTVISION HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, JUTVISION WILL NOT
BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OF THE JUTVISION EQUIPMENT
OR ANY OTHER MATERIALS PROVIDED HEREUNDER. JUTVISION'S LIABILITY UNDER THIS
AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT,
EXCEED THE AMOUNTS PAID BY
____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
8
<PAGE>
JUTVISION TO TBI UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO SUCH
CLAIM.
13.2. The provisions of this Section allocate risks under this Agreement
between TBI and Jutvision. Jutvision's pricing reflects this allocation of
risks and limitation of liability.
14. Trademark License
-----------------
14.1 License. Jutvision hereby grants TBI a limited, royalty-free,
-------
personal, non-transferable, nonsublicensable, non-exclusive license to use the
Jutvision logos, any other images, its trade names and trademarks (collectively,
the "Jutvision Logos"), and such other images and materials for which Jutvision
grants its prior written consent, solely for the purpose of identifying
Jutvision in TBI's promotional materials. TBI shall submit to Jutvision all
representations of the Jutvision Logos that TBI intends to use in connection
with the TBI promotional materials, for Jutvision's approval of design, color,
and other details. TBI shall not publish, disseminate, exhibit, or otherwise
distribute any such material without Jutvision's prior approval. TBI's use of
the Jutvision Logos shall at all times be of a high quality, commensurate with
Jutvision's own products and marketing. TBI shall not harm, misuse or bring
into disrepute the Jutvision Logos. Jutvision reserves all of its rights in the
Jutvision Logos, any other images, its trade names and trademarks, and all other
intellectual property or proprietary rights. TBI acknowledges that the
Jutvision Logos and the goodwill associated therewith are valuable properties
belonging to Jutvision and that all rights thereto are and shall remain the sole
and exclusive property of Jutvision. TBI agrees to use the Jutvision Logos in a
manner that will protect Jutvision's rights and goodwill therein. TBI agrees
that it will do nothing inconsistent with Jutvision's ownership and that all
uses of the same shall inure to the sole benefit of and be on behalf of
Jutvision.
14.2. Effect of Termination. Upon the expiration or termination of this
---------------------
Agreement for any reason, TBI shall immediately stop all activities hereunder,
cease using the Jutvision logo and not thereafter use the Jutvision logo for any
reason.
15. Termination
-----------
15.1. Either party may terminate this Agreement upon thirty (30) days
written notice in the event of a Default by the other party, provided that the
defaulting party has been given notice by the non-defaulting party of the
default and has failed to correct such default within thirty (30) days after
receipt of such notice. Default shall be defined as a material failure to
fulfill or perform duties or responsibilities as such are set forth in this
Agreement, including but not limited to a failure to perform the Services in the
manner described in Schedule A, a 5% failure rate over a sixty (60) day period
at capturing usable images (requiring refilming), a failure to follow the
Training Manual, fraud, misrepresentation, bankruptcy, insolvency or court
ordered liquidation of all or substantially all of the party's assets for the
benefit of creditors.
9
<PAGE>
15.2 Effect of Termination. Upon the expiration or termination of this
----------------------
Agreement for any reason, TBI shall (i) immediately stop all activities
hereunder, cease using the Jutvision logo and not thereafter use the Jutvision
logo for any reason, and (ii) promptly return all materials and Equipment to
Jutvision.
16. Arbitration
-----------
Any dispute, controversy or claim arising out of or relating to the
validity, construction, enforceability or performance of this Agreement,
including disputes relating to alleged breach or to termination of this
Agreement, shall be settled by final, binding arbitration in the manner
described in this Section. The arbitration shall be conducted pursuant to the
Commercial Rules of the American Arbitration Association then in effect
("Rules"). Notwithstanding those rules, the following provisions shall apply to
the arbitration hereunder:
16.1. Arbitrators. A panel of three (3) arbitrators ("the Panel")
-----------
shall conduct the arbitration. Each party shall have the right to appoint one
(1) member of the Panel, with the third member to be mutually agreed by the two
(2) Panel members appointed by the parties or appointed in accordance with the
rules of the American Arbitration Association.
16.2. Proceedings. The parties and the arbitrators shall use their
-----------
best efforts to complete the arbitration within three (3) months after the
appointment of the Panel under Section 16.1 above, unless a party can
demonstrate to the Panel that the complexity of the issues or other reasons
warrant the extension of the time table. In such case, the Panel may extend
such timetable as reasonably required. The Panel shall, in rendering its
decision, apply the substantive law of the State of California, without regard
to its conflict of laws provisions, except that the interpretation of and
enforcement of this Section 16.2 shall be governed by the U.S. Federal
Arbitration Act. The proceeding shall take place in the city and county of Palo
Alto, California. The losing party which party shall be designated by the Panel
shall pay the fees of the Panel. If the Panel is unable to designate a losing
party, it shall so state and the fees shall be shared equally between the
parties.
17. Assignment
----------
Neither party hereto shall assign or delegate this Agreement, or any of its
rights or duties hereunder, directly, indirectly, by operation of law, or
otherwise, without the prior written consent of the other party.
10
<PAGE>
18. Miscellaneous Provisions
------------------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of California. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will be
considered one and the same Agreement. This Agreement supersedes all prior
agreements, written or oral, between Jutvision and TBI relating to the subject
matter of this Agreement. Any amendment or modification of this Agreement shall
be in writing and shall be signed by both parties hereto. TBI acknowledges that
the Confidential Information represents valuable property and agrees that the
provisions of this Agreement shall be enforceable by specific performance and
other equitable relief in addition to any action for damages or other remedy
available to Jutvision. If any provision of this Agreement is for any reason
held to any extent to be invalid or unenforceable, the remainder of this
Agreement will not be affected and will be interpreted so as reasonably to
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
TBI Imaging, Inc.
By:_________________________________
Name:
Title:
Jutvision Corporation
By:_________________________________
Name:
Title:
Date:
11
<PAGE>
Schedule A
----------
SERVICES PROVIDED BY TBI
A. Services Provided.
1. TBI and its JSPs must successfully complete all Orders transmitted to TBI
or its JSPs by Jutvision.
2. TBI must be able to receive digitally transmitted Orders provided by
Jutvision.
3. TBI agrees to use the Dispatch System, or other dispatch system approved by
Jutvision prior to adoption that allows TBI to perform the Services.
4. A JSP must contact the Ordering Party specified in the Order within [*]
of the time TBI received the Order, unless the Order is received after [*], in
which case the JSP must contact the person specified in the Order [*] local time
the following day. If the Ordering Party is not available at the time that the
JSP receiving the Order calls to schedule the content capture appointment, the
JSP must leave the scripted message specified in the Training Manual. In the
event that the ordering party does not return the JSP's scheduling call [*] the
JSP shall repeat the above call procedure.
5. TBI must provide to Jutvision [*] a complete list including the time and
date of each appointment scheduled by its JSPs the prior day and the Federal
Express tracking number for each video taped shipped the prior day. If a JSP is
unable to schedule an appointment the day the JSP receives the Order, TBI must
indicate on the list that the JSP has not yet scheduled the appointment.
6. The JSP must be available to perform the content capture [*] from the time
the JSP contacted the Ordering Party.
7. If the JSP fails to meet the timing requirements specified in paragraphs 4
and 6 for an Order, Jutvision will not compensate TBI for the fulfillment of
that Order. Nonetheless, TBI and its JSPs are obligated to fulfill the Order as
expeditiously as possible.
8. If, for any reason, the JSP is unable to meet the Ordering Party at the
scheduled appointment time, the JSP must notify the Ordering Party at least [*]
prior to the scheduled appointment and reschedule the appointment at a mutually
convenient time within the [*]. If the JSP fails to notify the Ordering Party
[*] prior to missing a scheduled appointment, JSP shall contact the Ordering
Party within [*] after the originally scheduled time and reschedule the
appointment at a mutually convenient time
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
12
<PAGE>
within the [*]. TBI shall notify Jutvision of the time and date of the new
appointment in the same manner as specified in paragraph 4 above. Jutvision will
not compensate TBI for the Services performed for the Ordering Party when a JSP
has missed an appointment without contacting the Ordering Party at least [*]
prior to the scheduled appointment time in order to reschedule the appointment.
9. The JSP must capture the video content pursuant to the Training Manual. An
Order is not successfully completed, if in Jutvision's discretion, the video
images captured pursuant to that Order cannot be converted into a Virtual Tour
for posting on the Web. If for any reason, the JSP does not successfully
complete the Order, TBI shall be responsible for refilming the site at its
expense upon Jutvision's request pursuant to the procedures set forth in this
Schedule for the fulfillment of an initial Order.
10. At Jutvision's request, TBI must allow and the JSPs must distribute
Jutvision marketing materials to the Broker, Seller or potential buyer as part
of the normal course of fulfilling an Order; such efforts shall not increase
materially or substantially the time and effort required of TBI or its JSPs to
perform the Services. Neither TBI nor any of its JSPs, or any agent, employee,
representative, affiliate, subsidiary or any other entity controlled or owned by
TBI, may distribute any materials, other than those requested by Jutvision or
mutually agreed to by the parties, to Buyer, Seller and/or Broker, except as
otherwise agreed to by Jutvision in writing, during the term of this Agreement.
11. All video tape(s) from a day of filming with video content ready for
processing, along with accompanying paperwork, as such shall be specified in the
Training Manual, must be sent, at Jutvision's expense, to the U.S. Address for
delivery [*] the JSP films the content. Jutvision shall provide each JSP with a
sufficient number of pre-paid, pre-addressed Federal Express envelopes for the
purpose of shipping each days tape to Jutvision at the U.S. Address. Each JSP
must write the tracking number for the Federal Express package on the JSP Daily
Activity Log, to be provided by Jutvision at the time of training.
12. If Jutvision, in its discretion, is unable to process a videotape because
the accompanying paperwork is improperly completed pursuant to the Training
Manual, TBI shall be responsible for refilming the property at its expense or
for providing Jutvision with the information it needs to process the content on
the video tape in a timely manner.
13. TBI shall be responsible for the timely distribution of all of videotapes
to the JSPs upon receipt of the tapes from Jutvision. TBI shall identify a
single location or a reasonable number of locations in the United States to
which Jutvision will ship such replacement tapes.
14. Jutvision shall have the right to interview every potential JSP identified
by TBI before the JSP begins fulfilling Orders and shall have the right in its
discretion to require
____________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
13
<PAGE>
TBI to identify another individual. TBI shall be responsible for training each
JSP pursuant to the Training Manual.
15. Once Jutvision notifies TBI that a potential JSP's Test Tape is acceptable,
that individual may begin fulfilling Orders. If Jutvision determines that that
individual's Test Tape is not acceptable, Jutvision shall notify TBI of the
reason that the Tape is not acceptable and that individual may submit a second
Test Tape for Jutvision's review.
16. TBI and all JSPs must follow all procedures specified in the Training
Manual. TBI shall allow and TBI and the JSPs agree to participate in and
complete all training mandated by Jutvision.
Initials: ________ Jutvision.
________ TBI
14
<PAGE>
Schedule B
----------
FEES AND BILLING
A. Fees
1. Jutvision agrees to pay TBI [*] successfully completed as specified in
Schedule A.
2. Jutvision agrees to pay TBI [*] captured at the site specified in the
Order.
B. Cancellation Policy
If an Order is canceled on the day the JSP and the Ordering Party had
scheduled to perform the Services, Jutvision shall pay TBI [*]. If the Ordering
Party does not show-up for his or her appointment and the JSP is unable to
perform the Services, Jutvision shall pay TBI [*]. If the JSP films the
property and then the Order is canceled, Jutvision shall pay TBI [*].
D. Minimum Order Commitments
The following provision applies to the Service Areas listed on Schedule C
as of the date of this contract:
In the event that, three (3) months after Jutvision first provides an
Order to TBI in a Service Area, TBI receives [*], Jutvision agrees to [*] for
each [*] successfully completed in that Service Area during those weeks in which
TBI [*].
In the event that, six (6) months after Jutvision first provides an Order
to TBI in a Service Area, TBI receives [*], Jutvision agrees to [*] for each [*]
successfully completed in that Service Area during those weeks in which TBI [*].
In the event that, one (1) year after Jutvision first provides Orders to
TBI in a Service Area, TBI receives [*] listed on Schedule C per week over one
month period in a particular Service Area, the [*] shall no longer apply to TBI
for that particular Service Area.
Initials: ________ Jutvision.
________ TBI
_________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
15
<PAGE>
Schedule C
----------
SERVICE AREAS
[*]
Area Territory [*]
- --------------------------- ---------
Metropolitan Boston [*] [*]
Long Island [*] [*]
Metropolitan Philadelphia [*] [*]
[*]
[*]
[*]
Metropolitan Miami [*] [*]
[*]
Metropolitan Cleveland [*] [*]
[*]
Metropolitan Dallas/ [*] [*]
Ft. Worth
Metropolitan Chicago [*] [*]
[*]
Metropolitan Detroit [*] [*]
[*]
Metropolitan Minneapolis/ [*] [*]
St. Paul
Metropolitan Pittsburgh [*] [*]
Northern California [*] [*]
[*]
[*]
Metropolitan Denver [*] [*]
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
16
<PAGE>
Los Angeles [*] [*]
[*]
[*]
Other Metropolitan Areas for future TBI set-up.
Louisville [*] [*]
Tucson [*] [*]
Birmingham [*] [*]
Fairfield [*] [*]
Orlando [*] [*]
Lansing [*] [*]
Naples [*] [*]
Potential future sites for TBI.
[*]
[*]
[*]
Initials: ________ Jutvision.
_________ TBI
__________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
17
<PAGE>
Schedule D
----------
EQUIPMENT PROVIDED BY JUTVISION
The "Equipment" shall consist of:
1. Jutvision Field Kit consisting of one (1) Jutvision Roundabout, one (1)
video camera with light and necessary accessories, including the necessary power
source, one (1) tripod, two (2) video tapes, one (1) wide angle lens, one (1)
video camera battery recharger, and a carrying case. The JSPs shall provide the
batteries for the Jutvision Roundabout and shall be responsible for the ongoing
maintenance of the video camera, including, but not limited to, the replacement
of the rechargeable batteries for the camera.
2. Virtual Reality Listing Forms to be completed by JSP for each Order
pursuant to the Training Manual.
3. Cellular phone and accessories for Dispatch System.
4. Materials necessary for daily shipment of video tapes to the U.S. Address.
Initials: ________ Jutvision.
_________ TBI
18
<PAGE>
Schedule E
----------
COST OF REPLACEMENT EQUIPMENT
1. Sony Camcorder $900.00
2. Camcorder Battery $ 75.00
3. Camcorder Light $ 60.00
4. Camcorder Battery Recharger $ 50.00
5. Carrying Case $ 80.00
6. Tripod $ 90.00
7. Tripod Head $ 60.00
8. Video Tape $ 8.00
9. Jutvision Roundabout $350.00
10. Lens $ 40.00
11. Cell Phone $100.00
Initials: ________ Jutvision.
_________ TBI
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<PAGE>
Exhibit 2
---------
NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT ("Agreement") is made and entered into as
of _____________ (date) between Jutvision Corporation and ______________
(JSP/Jutvision Service Provider).
1. Purpose. The parties desire the JSP to perform certain services
-------
as further described in the Service Provider Agreement between Jutvision and
TBI, dated _____________, and in connection with this opportunity, Jutvision
("Disclosing Party") may disclose to JSP ("Receiving Party" or "Jutvision
Service Provider") certain confidential technical and business information which
the Disclosing Party desires the Receiving Party to treat as confidential.
2. "Confidential Information" means any information disclosed by the
------------------------
Disclosing Party to the Receiving Party, either directly or indirectly, in
writing, orally or by inspection of tangible objects (including without
limitation documents, prototypes, samples, plant and equipment), which is
designated as "Confidential," "Proprietary" or some similar designation.
Confidential Information will include without limitation all information
regarding Jutvision's image capturing technique, its proprietary technology and
equipment, whether or not so designated upon disclosure. Information
communicated orally will be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. Confidential Information may also
include information disclosed to a Disclosing Party by third parties.
Confidential Information will not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the Disclosing Party; (ii) becomes publicly known and
made generally available after disclosure by the Disclosing Party to the
Receiving Party through no action or inaction of the Receiving Party; (iii) is
already in the possession of the Receiving Party at the time of disclosure by
the Disclosing Party as shown by the Receiving Party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the Receiving
Party from a third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the Receiving Party without
use of or reference to the Disclosing Party's Confidential Information, as shown
by documents and other competent evidence in the Receiving Party's possession;
or (vi) is required by law to be disclosed by the Receiving Party, provided that
the Receiving Party gives the Disclosing Party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
3. Non-use and Non-disclosure. The Receiving Party agrees not to use
--------------------------
any Confidential Information of the Disclosing Party for any purpose except to
perform the services described in the Service Provider Agreement. The Receiving
Party agrees not to disclose any Confidential Information of the Disclosing
Party to third parties. The
20
<PAGE>
Receiving Party shall not reverse engineer, disassemble or decompile any
prototypes, software or other tangible objects which embody the Disclosing
Party's Confidential Information and which are provided to the Receiving Party
hereunder.
4. Maintenance of Confidentiality. The Receiving Party shall take
------------------------------
reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information of the Disclosing Party.
Without limiting the foregoing, the Receiving Party shall take at least those
measures that it takes to protect its own most highly confidential information.
The Receiving Party shall not make copies of the Confidential Information of the
Disclosing Party unless the Disclosing Party previously approves the same in
writing. The Receiving Party shall reproduce the Disclosing Party's proprietary
rights notices on any such approved copies, in the same manner in which such
notices were set forth in or on the original.
5. No Obligation. Nothing herein will obligate the Disclosing Party
-------------
to disclose any of its Confidential Information to the Receiving Party, nor will
either party be in any way obligated to enter into a separate agreement with the
other party, perform services for the other party, or purchase services from the
other party.
6. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS".
-----------
THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE,
REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
7. Return of Materials. All documents and other tangible objects
-------------------
containing or representing Confidential Information which have been disclosed by
the Disclosing Party to the Receiving Party, and all copies thereof which are in
the possession of the Receiving Party, will remain the property of the
Disclosing Party and must be promptly returned to the Disclosing Party upon the
Disclosing Party's written request.
8. No License. Nothing in this Agreement is intended to grant any
----------
rights to either party under any patent, mask work right or copyright of the
other party, nor will this Agreement grant the Receiving Party any rights in or
to the Confidential Information of the Disclosing Party except as expressly set
forth herein.
9. Term. The obligations of the Receiving Party hereunder will
----
survive until such time as all Confidential Information of the Disclosing Party
disclosed hereunder becomes publicly known and made generally available through
no action or inaction of the Receiving Party.
10. Remedies. Each party agrees that any violation or threatened
--------
violation of this Agreement may cause irreparable injury to the Disclosing
Party, entitling the Disclosing Party to seek injunctive relief in addition to
all legal remedies.
11. Miscellaneous. This Agreement will bind and inure to the benefit
-------------
of the parties hereto and their successors and assigns. This Agreement will be
governed by the
21
<PAGE>
laws of the State of California, without reference to conflict of laws
principles. This document contains the entire agreement between the parties with
respect to the subject matter hereof, and neither party will have any
obligation, express or implied by law, with respect to trade secret or
proprietary information of the other party except as set forth herein. Any
failure to enforce any provision of this Agreement will not constitute a waiver
thereof or of any other provision. This Agreement may not be amended, nor any
obligation waived, except by a writing signed by both parties hereto.
______________________________________________________________________
JUTVISION JUTVISION SERVICE PROVIDER
By:____________________________ By:_______________________
Name:__________________________ Name:_____________________
Title:_________________________ Title:____________________
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<PAGE>
SERVICE PROVIDER AGREEMENT
This Service Provider Agreement (the "Agreement") is made and entered into
this __ day of __________, 199_, by and between JUTVISION CORPORATION, a
Delaware corporation ("Jutvision"), 124 University Avenue, Palo Alto,
California, 94301 and ________________, _______________________ ("Provider").
WHEREAS, Jutvision produces Virtual Tours for the World Wide Web ("Web");
WHEREAS, the production of Virtual Tours for the Web requires the capturing
of video images;
WHEREAS, Jutvision desires to retain the services of Provider as an
independent contractor to capture video content;
WHEREAS, Provider is an independent business and desires to provide such
service pursuant to the terms set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
-----------
1.1 "Basic Order" shall mean a request by Jutvision for Provider to film
four (4) scenes at the site specified in the Order.
1.2 "Broker" shall mean any person working with, representing or
associated with the homeowner or home seller in connection with a real
estate transaction.
1.3 "Dispatch System" shall mean the process of distributing Orders
directly to the JSPs via a text message to the cell phones of each
JSP.
1.4 "Jutvision Service Provider" or "JSP" means the individual who
captures the video image of the property specified in the Order on
behalf of Provider.
1.5 "Order" shall mean a request by Jutvision for Provider to perform the
Services with respect to a specific property. Each Order shall consist
of the name of the Ordering Party requesting the video image capture,
that Ordering Party's phone number and the address of the property to
be videotaped.
1.6 "Ordering Party" shall mean the person who places the Order with
Jutvision.
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1.7 "Seller" shall mean the owner, or someone acting on behalf of the
owner, of the property being serviced pursuant to this Agreement.
1.8 "Test Tape" shall mean the videotape submitted by a potential JSP
pursuant to the Training Manual.
1.9 "US Address" shall mean Jutvision Corp., 124 University Avenue, Palo
Alto, California, 94301.
1.10 "Training Manual" shall mean the materials attached hereto as Exhibit
---------
1, a training videotape prepared by Jutvision, and any additions to
-
those materials that Jutvision may make from time to time.
1.11 "Virtual Tour" shall mean a panoramic scene for display on the Web.
2. INDEPENDENT CONTRACTOR RELATIONSHIP
-----------------------------------
Provider is an independently established business and desires to contract
with Jutvision to perform services pursuant to this Agreement as an
independent contractor. Provider further agrees that neither Provider nor
any employees or subcontractors of Provider is entitled to unemployment,
workers compensation or other benefits in any event pursuant to Provider's
provision of service under this Agreement.
3. SERVICES PROVIDED BY Provider
-----------------------------
3.1 Jutvision engages Provider, and Provider shall cause its JSPs, to
perform all services and responsibilities set forth in this Agreement
(the "Services"), including those set forth in Schedule A. These
----------
Services may be reasonably amended upon the mutual consent of the
parties at anytime. Provider accepts such engagement and agrees,
during the term of this Agreement and thereafter, as specified herein,
to perform the services and responsibilities set forth herein in a
professional and timely manner, to furnish its best skill and judgment
in performing the Services, to devote sufficient time and resources to
performing the Services, and to use best efforts to perform the
Services. If Provider is unable to perform the Services, it shall
notify Jutvision of its inability to perform the Services as soon as
it is aware of that inability.
3.2 Provider shall cause each of its JSPs to sign and deliver to Jutvision
the non-disclosure agreement attached hereto as Exhibit 2.
---------
3.3 The JSPs shall not perform any other services, other than the Services
or any other services agreed to by Jutvision and Provider, during the
provision of the Services.
2
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3.4 The JSPs shall not accept gratuities from the Seller, Broker or any
other individual requesting or involved in the transactions
contemplated in this Agreement.
3.5 From time to time, at the agreement of the parties, Provider shall
participate in marketing and promotional programs with regard to the
Services, Jutvision or Virtual Tours. Such participation shall be of a
nature that does not materially or significantly add to the time or
effort required of Provider or its JSPs to perform the Services.
4. TERM OF AGREEMENT RENEWAL
-------------------------
This Agreement takes effect at 12:00 A.M. EST, January 11, 1999, and,
unless sooner terminated as provided herein, will continue in effect for a
period of two years ending at 11:59 P.M. EST, January 10, 2001. This
Agreement may be renewed for an additional term of two years at Jutvision's
option, which option shall be exercised no later than thirty (30) days
prior to the date of the termination of the initial term. This Agreement
may be further extended by mutual written agreement between Jutvision and
Provider.
5. FEES
----
5.1 Jutvision agrees to pay the fees specified on Schedule B pursuant to
----------
the terms of this Agreement.
5.2 Schedule B shall not be changed, modified, supplemented or amended
----------
except by express written agreement signed by Jutvision and Provider.
6. BILLING
-------
6.1 Provider shall produce and send an invoice to Jutvision on the 15th
and last day of each month detailing the Fees owing to Provider
Jutvision will pay Provider for its services by means of electronic
transfer to Provider's bank account. Jutvision will make its best
efforts to make those payments within ten (10) business days after
receiving Provider' invoice.
6.2 Invoices unpaid by Jutvision thirty (30) days after receipt of an
invoice from Provider shall be charged interest at the rate of one and
one-half percent (1.5%) per month, or eighteen percent (18%) per
annum, calculated daily, compounded annually.
6.3 Jutvision shall inform Provider of any disputes regarding an invoice
within ten (10) business days of receipt of that invoice. In the event
that Jutvision disputes the validity of an invoice or part of an
invoice rendered by Provider, Jutvision shall continue to pay any
undisputed amounts but shall not pay the amount in dispute. Jutvision
shall not incur any interest charges
3
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for the disputed amount from the date Jutvision notified Provider of
its disagreement with Provider's invoice. In the event of a dispute,
the parties shall confer within ten (10) business days for the purpose
of resolving the dispute. If the dispute cannot be resolved within ten
(10) business days of the first conference, either party may request
arbitration, which shall be subject to the terms of Section 15.
7. SERVICE AREA
------------
7.1 Provider agrees to perform the Services in the geographical areas (the
"Service Areas") identified in Schedule C.
----------
7.2 Provider will be the exclusive provider of Services within the Service
Areas listed in Schedule C and defined in the Service Area Agreement.
----------
From time to time, upon the parties' written agreement, the parties
may change, modify, supplement or amend Schedule C.
----------
7.3 From time to time, Jutvision may expand the Service Areas to include
additional geographical areas. Upon notification by Jutvision,
Provider shall take all necessary actions to provide the Services in a
Service Area, including identifying an individual or individuals
suitable to perform the Services within one week of the time Jutvision
notifies Provider of its desire to expand a Service Area.
8. EQUIPMENT
---------
8.1 Jutvision shall provide, at Jutvision's cost, the equipment specified
in Schedule D (the "Equipment") in quantities adequate for the
----------
performance of the Services by Provider. At all times Jutvision
maintains ownership of the Equipment and can recall any or all of the
Equipment at any time.
8.2 License Grant.
-------------
8.2.1 Grant. Following Jutvision's provision of the Equipment to
-----
Provider and its JSPs, and subject to all the terms and
conditions of this Agreement, Jutvision hereby grants to
Provider and its JSPs a limited, royalty-free, personal, non-
transferable, non-sublicensable, non-exclusive license to the
Equipment during the term of this Agreement. The Equipment
shall be used only in connection with the Services hereunder,
and not for or on behalf of any third party.
8.2.2 No Sale. The parties acknowledge and agree that (i) all
-------
Equipment provided by Jutvision hereunder is licensed in
accordance herewith and not sold and (ii) as between Jutvision
and Provider and its JSPs, subject only to the license grants
expressly made herein, Jutvision is the sole owner of all
right, title and interest in and to
4
<PAGE>
the Equipment, including without limitation all intellectual
property and proprietary rights therein and thereto.
8.2.3 No Modification or Reverse Engineering. Except as otherwise
--------------------------------------
expressly permitted by applicable law, Provider and its JSPs shall
not modify, disassemble or in any way reverse engineer, the
Equipment or any portion, derivative or version thereof or permit
any third party to do so.
8.2.4 Termination. The license granted in this section shall immediately
-----------
terminate upon any expiration or termination of this Agreement.
8.3 The Equipment shall be functional when received by Provider. If the
Equipment is not functioning when initially received, Provider shall
immediately notify Jutvision and within 24 hours send or deliver, at
Jutvision's cost, the Equipment to Jutvision's U.S. Address.
8.4 Jutvision shall pay for all Equipment repair costs associated with normal
wear and tear. If any of the Equipment needs repair, Provider or one of its
employees, agents, contractors or subcontractors shall be responsible for
sending or delivering, at Jutvision's cost (except as specified in Section
8.5), the non-functioning Equipment to Jutvision at its U.S Address. Upon
receiving the non-functioning Equipment, Jutvision will send Provider, or
the JSP identified by Provider as needing the Equipment, replacement
Equipment. The Training Manual details an alternative procedure acceptable
to Jutvision for the shipment of Equipment.
8.5 Provider shall pay for all repair costs not associated with normal wear and
tear, including the repair of damage caused by the negligence of Provider
or one of its employees, agents, contractors or subcontractors or any
modification of the equipment by Provider or one of its employees, agents,
contractors or subcontractors. Provider or one of its employees, agents,
contractors or subcontractors shall be responsible for immediately sending
or delivering, at Provider's expense, the negligently damaged to Jutvision
at its U.S. Address.
8.6 If any Equipment is lost, stolen, or damaged while in the possession of
Provider, its employees, agents, contractors or subcontractors, Provider
shall pay, within 30 days, the repair or replacement cost of such Equipment
to Jutvision. The cost of replacement shall be the cost of purchasing
replacement equipment as specified in Schedule E. The cost of repair will
----------
not exceed the cost of purchasing replacement equipment as specified in
Schedule E. If Provider fails to pay for the lost, stolen or damaged
----------
equipment within 30 days, then Jutvision may deduct those costs from its
next payment to Provider.
5
<PAGE>
8.7 Warranty Disclaimer.
-------------------
THE EQUIPMENT AND ANY OTHER MATERIALS PROVIDED HEREUNDER TO PROVIDER
AND TO ITS JSPS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND.
JUTVISION MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY
REGARDING OR RELATING TO THE EQUIPMENT OR ANY OTHER MATERIALS PROVIDED
TO PROVIDER OR TO ITS JSPS UNDER THIS AGREEMENT. SPECIFICALLY,
JUTVISION DOES NOT WARRANT THAT THE EQUIPMENT WILL BE ERROR FREE OR
WILL PERFORM IN AN UNINTERRUPTED MANNER. TO THE GREATEST EXTENT
ALLOWED BY LAW, JUTVISION SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN
IF JUTVISION HAD BEEN INFORMED OF SUCH PURPOSE), AND NONINFRINGEMENT
WITH RESPECT TO THE EQUIPMENT AND ANY SUCH OTHER MATERIALS AND WITH
RESPECT TO THE USE OF ANY OF THE FOREGOING.
9. INDEMNIFICATION
---------------
9.1 Provider shall indemnify, and hold harmless Jutvision from any and all
damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Jutvision arising from or relating to
Provider's use of the Equipment or any services provided by Provider
hereunder. Jutvision shall promptly notify Provider in writing of any
such claim and promptly tender the control of the defense and
settlement of any such claim to Provider at Provider's expense and
with Provider's choice of counsel. Jutvision shall cooperate with
Provider, at Provider's expense, in defending or settling such claim
and Jutvision may join in the defense with counsel of its choice at
its own expense expense .
9.2 Jutvision shall indemnify, and hold harmless Provider from any and all
damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Provider arising from or relating to
Jutvision's trademark, copyright, patents, or business practices
related to Jutvision's trademark, copyright, or patents. Provider
shall promptly notify Jutvision in writing of any such claim and
promptly tender the control of the defense and settlement of any such
claim to Jutvision at Jutvision's expense and with Jutvision's choice
of counsel. Provider shall cooperate with Jutvision, at Jutvision's
expense, in defending or settling such a claim and Provider may join
in the defense with counsel of its choice at its own expense.
9.3 Throughout the term of this Agreement, Provider, for its employees who
perform the Services, shall procure and maintain, at its sole cost and
expense: (a) adequate levels of Workers Compensation and Employer's
6
<PAGE>
Liability insurance in accordance with applicable State Law; (b)
comprehensive general liability insurance for claims for damages due
to bodily injury (including death) and property damage caused by or
arising out of acts or omissions of its employees; and (c) sufficient
contractual liability insurance to cover the liabilities assumed by
Provider under this Agreement. In addition, all of Provider JSPs,
whether employees or independent contractors of Provider, shall
provide to Jutvision proof of bonding. For purposes of the foregoing,
"bond" shall refer to an Individual Fidelity Bond for $2,500.
Maintenance of such insurance shall in no way be interpreted as
relieving Provider of any responsibility under this Agreement.
10. CONFIDENTIAL INFORMATION
------------------------
10.1 Definition. The term "Confidential Information" shall mean any
----------
information disclosed by one party (the "Disclosing Party") to this
Agreement to the other (the "Receiving Party") of this Agreement in
connection with this Agreement which, if in written, graphic, machine-
readable or other tangible form is marked as "Confidential" or
"Proprietary," or which, if disclosed orally, is identified at the
time of initial disclosure as confidential and such identification is
reduced to a writing delivered to the Receiving Party within thirty
(30) days of such oral disclosure. Without limiting the foregoing, the
terms and conditions of this Agreement shall be considered
Confidential Information.
10.2 Exclusions. Confidential Information shall exclude information that:
----------
(a) was independently developed by the Receiving Party without any use
of the Disclosing Party's Confidential Information or by the Receiving
Party's employees or other agents (or independent contractors hired by
the Receiving Party) who have not been exposed to the Disclosing
Party's Confidential Information; (b) becomes known to the Receiving
Party, without restriction, from a source other than the Disclosing
Party without breach of this Agreement and that had a right to
disclose it; (c) was in the public domain at the time it was disclosed
or becomes in the public domain through no act or omission of the
Receiving Party; or (d) was rightfully known to the Receiving Party,
without restriction, at the time of disclosure.
10.3 Compelled Disclosure. If a Receiving Party is, or believes that it
--------------------
will be, compelled by a court or other authority to disclose
Confidential Information of the Disclosing Party, it shall give the
Disclosing Party prompt notice so that the Disclosing Party may take
steps to oppose such disclosure.
10.4 Obligations. The Receiving Party shall treat as confidential all of
-----------
the Disclosing Party's Confidential Information and shall not use or
disclose such Confidential Information to a third party except as
expressly permitted under this Agreement. Without limiting the
foregoing, the Receiving Party shall use at least the same degree of
care which it uses to prevent the
7
<PAGE>
disclosure of its own confidential information of like importance,
but in no event less than reasonable care, to prevent the disclosure
of the Disclosing Party's Confidential Information.
11. [*]
---
11.1 In view of the fact that any activity of Provider in violation of the
terms hereof would adversely affect Jutvision and its subsidiaries,
and to preserve the goodwill associated with Jutvision's business,
Provider hereby agrees to the following [*]:
11.1.1 Provider hereby agrees that during the term of this
Agreement and during the period commencing on the date this
Agreement is terminated for any reason and ending on the
date which is the third anniversary of the date thereof [*]
Provider will not, without the express written consent of
Jutvision, directly or indirectly, [*] Jutvision and its
subsidiaries and affiliates or proposed [*].
11.1.2 In the event (i) Provider receives and considers [*] or (ii)
Provider determines to [*], Provider shall notify Jutvision,
and Jutvision shall have the exclusive right to [*] for a
period of thirty (30) days after the date of receipt of such
notice.
11.1.3 For purposes of this Agreement, the "Acquisition" of a party
shall mean (i) a merger, consolidation or other
reorganization, if the individuals and entities who were
stockholders of the party immediately prior to the effective
date of the transaction have "beneficial ownership" (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of less than sixty percent (60%) of the
total combined voting power for election of directors (or
their equivalent) of the surviving entity following the
effective date of the transaction, (ii) acquisition by any
entity or group of direct or indirect beneficial ownership
in the aggregate of securities of the party then issued and
outstanding representing forty percent (40%) or more of the
total combined voting power of the party, or (iii) a sale of
all or substantially all of the party's
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
8
<PAGE>
assets.
11.1.4 For purposes of this Agreement, any reference to the
subsidiaries of Jutvision shall be deemed to include all
entities directly or indirectly controlled by it through an
ownership of more than fifty percent (50%) of the voting
interests. The term "affiliate" shall mean, with respect to
any person or entity, any person or entity which directly or
indirectly controls, is controlled by or is under common
control with such person or entity. The term "person" shall
mean an individual, a corporation, an association, a
partnership, a limited liability company, an estate, a
trust, and any other entity or organization.
12. LIMITATION OF LIABILITY
-----------------------
IN NO EVENT WILL JUTVISION BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE,
BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE EQUIPMENT OR ANY OTHER
MATERIALS PROVIDED BY JUTVISION HEREUNDER, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, AND EVEN IF JUTVISION HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, JUTVISION WILL NOT
BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OF THE EQUIPMENT OR ANY
OTHER MATERIALS PROVIDED HEREUNDER. JUTVISION'S LIABILITY UNDER THIS AGREEMENT
FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE
AMOUNTS PAID BY JUTVISION TO Provider UNDER THIS AGREEMENT FOR THE SERVICES
GIVING RISE TO SUCH CLAIM.
The provisions of this Section allocate risks under this Agreement between
Provider and Jutvision. Jutvision's pricing reflects this allocation of risks
and limitation of liability.
13. TRADEMARK LICENSE
-----------------
13.1 License. Jutvision hereby grants Provider a limited, royalty-free,
-------
personal, non-transferable, nonsublicensable, non-exclusive license
to use the Jutvision logos, any other images, its trade names and
trademarks (collectively, the "Jutvision Logos"), and such other
images and materials for which Jutvision grants its prior written
consent, solely for the purpose of identifying Jutvision in
Provider's promotional materials. Provider shall submit to Jutvision
all representations of the Jutvision logo that Provider intends to
use in connection with the Provider promotional materials, for
9
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Jutvision's approval of design, color, and other details. Provider
shall not publish, disseminate, exhibit, or otherwise distribute any
such material without Jutvision's prior approval. Provider' use of
the Jutvision Logos shall at all times be of a high quality,
commensurate with Jutvision's own products and marketing. Provider
shall not harm, misuse or bring into disrepute the Jutvision Logo.
Jutvision reserves all of its rights in the Jutvision Logos, any
other images, its trade names and trademarks, and all other
intellectual property or proprietary rights. Provider acknowledges
that the Jutvision Logos and the goodwill associated therewith are
valuable properties belonging to Jutvision and that all rights
thereto are and shall remain the sole and exclusive property of
Jutvision. Provider agrees to use the Jutvision Logos in a manner
that will protect Jutvision's rights and goodwill therein. Provider
agrees that it will do nothing inconsistent with Jutvision's
ownership and that all uses of the same shall inure to the sole
benefit of and be on behalf of Jutvision.
13.2 Effect of Termination. Upon the expiration or termination of this
---------------------
Agreement for any reason, Provider shall immediately stop all
activities hereunder, cease using the Jutvision logo and not
thereafter use the Jutvision logo for any reason.
14. TERMINATION
-----------
Either party may terminate this Agreement upon thirty (30) days written
notice in the event of a default by the other party, provided that the
defaulting party has been given notice by the non-defaulting party of the
default and has failed to correct such default within thirty (30) days
after receipt of such notice. Default shall be defined as a material
failure to fulfill or perform duties or responsibilities as such are set
forth in this Agreement, including but not limited to a failure to perform
the Service in the manner described in this Agreement (including Schedule
------------------
A), a 5% failure rate at capturing usable images (i.e. images requiring
reshooting), a failure to follow the Training Manual, fraud,
misrepresentation, non-payment, bankruptcy, insolvency or court-ordered
liquidation of all substantially all of the party's assets for the benefits
of creditors.
15. ARBITRATION
-----------
Any dispute, controversy or claim arising out of or relating to the
validity, construction, enforceability or performance of this Agreement,
including disputes relating to alleged breach or to termination of this
Agreement, shall be settled by final, binding arbitration in the manner
described in this Section. The arbitration shall be conducted pursuant to
the Commercial Rules of the American Arbitration Association then in effect
("Rules"). Notwithstanding those rules, the following provisions shall
apply to the arbitration hereunder:
15.1 Arbitrators. The arbitration shall be conducted by a panel of three
-----------
(3) arbitrators ("the Panel"). Each party shall have the right to
appoint one (1)
10
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member of the Panel, with the third member to be mutually agreed by
the two (2) Panel members appointed by the parties or appointed in
accordance with the rules of the American Arbitration Association.
15.2 Proceedings. The parties and the arbitrators shall use their best
-----------
efforts to complete the arbitration within one (1) year after the
appointment of the Panel under Section 15.1 above, unless a party can
demonstrate to the Panel that the complexity of the issues or other
reasons warrant the extension of the timetable. In such case, the
Panel may extend such timetable as reasonably required. The Panel
shall, in rendering its decision, apply the substantive law of the
State of California, without regard to its conflict of laws
provisions, except that the interpretation of and enforcement of
Section 15.2 shall be governed by the U.S. Federal Arbitration Act.
The proceeding shall take place in the city and county of San
Francisco. The fees of the Panel and all reasonable attorney's fees
shall be paid by the losing party as designated by the Panel. If the
Panel is unable to designate a losing party, it shall so state and the
fees shall be shared equally between the parties.
16. ASSIGNMENT
----------
Provider shall not assign or delegate this Agreement, or any of its rights
otherwise, without the prior written consent of Jutvision.
17. MISCELLANEOUS PROVISIONS
------------------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of California. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of
which will be considered one and the same Agreement. This Agreement
supersedes all prior agreements, written or oral, between Jutvision and
Provider relating to the subject matter of this Agreement. Any amendment
or modification of this Agreement shall be in writing and shall be signed
by both parties hereto. Provider acknowledges that the Confidential
Information represents valuable property and agrees that the provisions of
this Agreement shall be enforceable by specific performance and other
equitable relief in addition to any action for damages or other remedy
available to Jutvision. If any provision of this Agreement is for any
reason held to any extent to be invalid or unenforceable, the remainder of
this Agreement will not be affected and will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of the void or
unenforceable provision.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
Provider
By:_________________________________
Name:
Title:
Jutvision Corporation
By:_________________________________
Name:
Title:
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Schedule A
----------
SERVICES PROVIDED BY Provider
1. Provider and its JSPs must successfully complete all Orders transmitted to
Provider or its JSPs by Jutvision.
2. Provider and its JSPs must be able to receive digitally transmitted Orders
provided by Jutvision.
3. Provider agrees to use the Dispatch System, or other dispatch system
approved by Jutvision that allows Provider to perform the Services.
4. A JSP must contact the Ordering Party specified in the Order within [*]
from the time Provider or the JSP received the Order, unless the
Order is received after [*] in which case the JSP must contact the person
specified in the Order [*]local time the following day. If the Ordering
Party is not available at the time that the JSP receiving the Order calls
to schedule the content capture appointment, the JSP must leave the
scripted message specified in the Training Manual. In the event that the
Ordering Party does not return the JSP's scheduling call [*], the JSP shall
repeat the above call procedure.
5. Provider must provide to Jutvision [*] a complete list of the appointments
scheduled by its JSPs the prior day, including the time and date of each
appointment. If a JSP is unable to schedule an appointment the day the JSP
receives the Order, Provider must indicate on the list that the JSP has not
yet scheduled the appointment.
6. The JSP must be available to perform the content capture [*] from the time
the JSP contacted the Ordering Party.
7. If the JSP fails to meet the timing requirements specified in paragraphs 4
and 6 for an Order, Jutvision will not compensate Provider for the
fulfillment of that Order. Nonetheless, Provider is obligated to fulfill
the Order as expeditiously as possible.
8. If, for any reason, the JSP is unable to meet the Ordering Party at the
scheduled appointment time, the JSP must notify the Ordering Party at least
[*] prior to the scheduled appointment and reschedule the appointment at a
mutually convenient time within the [*]. If the JSP fails to notify the
Ordering Party [*] prior to missing a scheduled appointment, JSP shall
contact the Ordering Party within [*] after the originally scheduled time
and reschedule the appointment at a mutually convenient time within [*].
Provider shall notify Jutvision of the time and date of the new appointment
in the same manner as specified in paragraph 5 above. Jutvision will not
compensate Provider for the Services performed for the Ordering Party when
a JSP has missed an appointment
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
13
<PAGE>
without contacting the Ordering Party at least two (2) hours prior to the
scheduled appointment time in order to reschedule the appointment.
9. The JSP must capture the video content pursuant to the Training Manual. An
Order is not successfully completed, if in Jutvision's discretion, the
video images captured pursuant to that Order cannot be converted into a
Virtual Tour for posting on the Web. Jutvision must inform Provider within
5 business days from when the image was captured that the image can not be
successfully converted. If for any reason, the JSP does not successfully
complete the Order, Provider shall be responsible for refilming the site at
its expense upon Jutvision's request pursuant to the procedures set forth
in this Schedule for the fulfillment of an initial Order.
10. At Jutvision's request, Provider must allow and the JSPs must distribute
Jutvision marketing materials to the Broker, Seller or potential buyers as
part of the normal course of fulfilling an Order. Such efforts shall not
increase materially or significantly the time or effort required of
Provider or its JSPs to perform the Services. Neither Provider nor any of
its JSPs, or any agent, employee, representative, affiliate, subsidiary or
any other entity controlled or owned by Provider, may distribute any
materials, other than those requested by Jutvision or mutually agreed to by
the parties, to the Broker, Seller or potential buyers, except as otherwise
agreed to by Jutvision in writing, during the term of this Agreement. This
provision should not be read to limit Provider's pre-existing business
relationships with any party.
11. All video tape(s) from a day of filming with video content ready for
processing, along with accompanying paperwork, as such shall be specified
in the Training Manual, must be sent, at Jutvision's expense, to the U.S.
Address for delivery [*] the JSP films the content. Jutvision shall provide
each JSP with a sufficient number of pre-paid, pre-addressed Federal
Express envelopes to be used for the sole purpose of shipping each days
tape to Jutvision at the U.S. Address. Each JSP must write the tracking
number for the Federal Express package on the JSP Daily Activity Log, which
will be provided by Jutvision at the time of training.
12. If Jutvision, in its discretion, is unable to process the videotape because
the accompanying paperwork is not completed pursuant to the Training
Manual, Provider shall be responsible for reimaging the property at its
expense or for providing Jutvision with the information it needs to process
the images on the video tape in a timely manner.
13. Provider shall be responsible for the timely distribution of all of
videotapes to its JSPs upon receipt of the tapes from Jutvision. Provider
shall identify one location or a reasonable number of strategic locations
to which Jutvision will ship such replacement tapes.
14. Jutvision shall have the right to interview every potential JSP identified
by Provider before the JSP begins fulfilling Orders and shall have the
right in its discretion to
________________
/*/Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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<PAGE>
require Provider to identify another individual. Provider, with Jutvision's
assistance, shall be responsible for training each JSP pursuant to the
Training Manual.
15. Once Jutvision notifies Provider that a potential JSP's Test Tape is
acceptable, that individual may begin fulfilling Orders. If Jutvision
determines that that individual's Test Tape is not acceptable, Jutvision
shall notify Provider of the reason that Test Tape is not acceptable and
that individual may submit a second Test Tape for Jutvision's review.
16. Provider and all JSPs must follow all procedures specified in the Training
Manual. Provider and the JSPs agree to participate in and complete all
training mandated by Jutvision.
Initials: ________ Jutvision
________ Provider
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<PAGE>
Schedule B
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FEES AND BILLING
A. Fees
----
1. Jutvision agrees to pay Provider ____________ for each Basic Order
successfully completed as specified in Schedule A.
----------
2. Jutvision agrees to pay Provider _______________ for each scene in excess of
four (4) captured at the site specified in the Order.
B. Cancellation Policy
-------------------
1. If an Order is cancelled on the day the JSP and the Ordering Party had
scheduled to perform the Services, Jutvision shall pay Provider _________.
If the Ordering Party does not show-up for his or her appointment and the
JSP is unable to perform the Services, Jutvision shall pay Provider
___________. If the JSP films the property and then the Order is cancelled,
Jutvision shall pay Provider ______________.
Initials: ________ Jutvision
________ Provider
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<PAGE>
Schedule C
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SERVICE AREAS
The following zip codes, as modified by the comments, serve as the outer
boundary of the "Service Area":
Initials: ________ Jutvision
________ Provider
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<PAGE>
Schedule D
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EQUIPMENT PROVIDED BY JUTVISION
The "Equipment" shall consist of:
1. Jutvision Field Kit consisting of one (1) Jutvision Roundabout (TM), one
(1) video camera with light and necessary accessories, including the
necessary power source, one (1) tripod, two (2) video tapes, one (1) wide
angle lens, one (1) video camera battery recharger and a carrying case. The
JSPs shall provide the batteries for the Jutvision Roundabout (TM) and
shall be responsible for the ongoing maintenance of the video camera,
including, but not limited to, the replacement of the rechargeable
batteries for the camera.
2. Virtual Reality Requisition Forms to be completed by JSP for each Order
pursuant to the Training Manual.
3. Cellular phone and accessories for Dispatch System. Jutvision will maintain
all cellular phone contracts and service agreements and will pay for all
cellular phone charges incurred by Provider' JSPs during the course of
fulfilling Orders.
4. Materials necessary for daily shipment of video tapes to the U.S. Address.
5. Training manuals that include instructions on the maintenance of the
camera, battery, and cellular phone.
Initials: ________ Jutvision
________ Provider
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<PAGE>
Schedule E
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COST OF REPLACEMENT EQUIPMENT
<TABLE>
<CAPTION>
Description Unit Cost
- ----------- ---------
<S> <C>
1. Sony Camcorder $900.00
2. Camcorder Battery $ 75.00
3. Camcorder Battery Recharger $ 50.00
4. Camcorder Light $ 60.00
5. Carrying Case $ 80.00
6. Lens $ 40.00
7. Tripod $ 90.00
8. Tripod Head $ 60.00
9. Video Tape $ 8.00
10. Jutvision Roundabout $350.00
11. Cell Phone $100.00
</TABLE>
Initials: ________ Jutvision
________ Provider
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<PAGE>
Exhibit 2
NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT ("Agreement") is made and entered into as of
_____________ (date) between Jutvision Corporation and ______________
(JSP/Jutvision Service Provider).
1. Purpose. The parties desire the JSP to perform certain services as
-------
further described in the Service Provider Agreement between Jutvision and
Provider, dated _____________, and in connection with this opportunity,
Jutvision ("Disclosing Party") may disclose to JSP ("Receiving Party" or
"Jutvision Service Provider") certain confidential technical and business
information which the Disclosing Party desires the Receiving Party to treat as
confidential.
2. "Confidential Information" means any information disclosed by the
------------------------
Disclosing Party to the Receiving Party, either directly or indirectly, in
writing, orally or by inspection of tangible objects (including without
limitation documents, prototypes, samples, plant and equipment), which is
designated as "Confidential," "Proprietary" or some similar designation.
Confidential Information will include without limitation all information
regarding Jutvision's image capturing technique, its proprietary technology and
equipment, whether or not so designated upon disclosure. Information
communicated orally will be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. Confidential Information may also
include information disclosed to a Disclosing Party by third parties.
Confidential Information will not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the Disclosing Party; (ii) becomes publicly known and
made generally available after disclosure by the Disclosing Party to the
Receiving Party through no action or inaction of the Receiving Party; (iii) is
already in the possession of the Receiving Party at the time of disclosure by
the Disclosing Party as shown by the Receiving Party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the Receiving
Party from a third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the Receiving Party without
use of or reference to the Disclosing Party's Confidential Information, as shown
by documents and other competent evidence in the Receiving Party's possession;
or (vi) is required by law to be disclosed by the Receiving Party, provided that
the Receiving Party gives the Disclosing Party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
3. Non-use and Non-disclosure. The Receiving Party agrees not to use any
--------------------------
Confidential Information of the Disclosing Party for any purpose except to
perform the services described in the Service Provider Agreement. The Receiving
Party agrees not to disclose any Confidential Information of the Disclosing
Party to third parties. The
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<PAGE>
Receiving Party shall not reverse engineer, disassemble or decompile any
prototypes, software or other tangible objects which embody the Disclosing
Party's Confidential Information and which are provided to the Receiving Party
hereunder.
4. Maintenance of Confidentiality. The Receiving Party shall take
------------------------------
reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information of the Disclosing Party.
Without limiting the foregoing, the Receiving Party shall take at least those
measures that it takes to protect its own most highly confidential information.
The Receiving Party shall not make copies of the Confidential Information of the
Disclosing Party unless the same are previously approved in writing by the
Disclosing Party. The Receiving Party shall reproduce the Disclosing Party's
proprietary rights notices on any such approved copies, in the same manner in
which such notices were set forth in or on the original.
5. No Obligation. Nothing herein will obligate the Disclosing Party to
-------------
disclose any of its Confidential Information to the Receiving Party, nor will
either party be in any way obligated to enter into a separate agreement with the
other party, perform services for the other party, or purchase services from the
other party.
6. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". THE
-----------
DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING
ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
7. Return of Materials. All documents and other tangible objects
-------------------
containing or representing Confidential Information which have been disclosed by
the Disclosing Party to the Receiving Party, and all copies thereof which are in
the possession of the Receiving Party, will remain the property of the
Disclosing Party and must be promptly returned to the Disclosing Party upon the
Disclosing Party's written request.
8. No License. Nothing in this Agreement is intended to grant any rights
----------
to either party under any patent, mask work right or copyright of the other
party, nor will this Agreement grant the Receiving Party any rights in or to the
Confidential Information of the Disclosing Party except as expressly set forth
herein.
9. Term. The obligations of the Receiving Party hereunder will survive
----
until such time as all Confidential Information of the Disclosing Party
disclosed hereunder becomes publicly known and made generally available through
no action or inaction of the Receiving Party.
10. Remedies. Each party agrees that any violation or threatened
--------
violation of this Agreement may cause irreparable injury to the Disclosing
Party, entitling the Disclosing Party to seek injunctive relief in addition to
all legal remedies.
11. Miscellaneous. This Agreement will bind and inure to the benefit of
-------------
the parties hereto and their successors and assigns. This Agreement will be
governed by the
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<PAGE>
laws of the State of California, without reference to conflict of laws
principles. This document contains the entire agreement between the parties with
respect to the subject matter hereof, and neither party will have any
obligation, express or implied by law, with respect to trade secret or
proprietary information of the other party except as set forth herein. Any
failure to enforce any provision of this Agreement will not constitute a waiver
thereof or of any other provision. This Agreement may not be amended, nor any
obligation waived, except by a writing signed by both parties hereto.
_____________________________________________________________________
Jutvision Corporation Jutvision Service Provider
By:________________________ By:__________________________
Name:______________________ Name:________________________
Title:_____________________ Title:_______________________
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