Distribution Agreement - Jutvision Corp. and St. Joe Real Estate Services Inc. d/b/a Arvida Realty Services
DISTRIBUTION AGREEMENT
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THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of March
5, 1999 (the "Effective Date"), between Jutvision Corporation, a Delaware
corporation ("Jutvision"), and St. Joe Real Estate Services, Inc., d/b/a Arvida
Realty Services, a Florida corporation ("Company").
BACKGROUND
A. Jutvision uses the Jutvision Technology (as defined below) and provides
the Production Services (as defined below).
B. Company operates the Company Site (as defined below).
C. Jutvision 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
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1.1 "Basic Package" means up to four scenes captured in a designated
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Property, converted into a corresponding number of Jutvision Images and posted
to the Company Site.
1.2 "Company Marks" means the trademarks, service marks and/or trade names
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"St. Joe" and/or "Arvida" and/or the St. Joe logo.
1.3 "Company Site" means the collection of HTML documents residing on
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servers operated by or for Company or its affiliate and accessible on or after
the Effective Date by Sales Agents.
1.4 "Confidential Information" means any trade secrets, confidential data
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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.
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1.5 "Initial Posting Date" means the date on which Jutvision commences
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providing Production Services and Company begins receiving postings of Jutvision
Images under this Agreement. Company will provide Jutvision with written notice
of the Initial Posting Date, which Jutvision will promptly confirm in a reply
written notice sent to Company.
1.6 "Jutvision Image" means an electronic image of a Property produced by
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or on behalf of Jutvision.
1.7 "Jutvision Marks" means the trademarks, service marks and/or trade
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names JUTVISION and the Jutvision logo.
1.8 "Jutvision Technology" means software and hardware, including the
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Software, used to capture, process and view Jutvision Images.
1.9 "Production Services" means the virtual tour services provided by or on
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behalf of Jutvision in preparing the Basic Packages and Upgrade Packages.
1.10 "Property" means any piece of residential real estate within the
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Territory, including without limitation new homes, offered for sale or resale.
1.11 "Sales Agent" means any sales agent, sales representative or broker of
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Company.
1.12 "Service Provider Network" means the network of members throughout the
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Territory with whom Jutvision has entered into agreements to capture images at
designated sites on Jutvision's behalf.
1.13 "Software" means the Jutvision for Java Software.
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1.14 "Term" means the Initial Term of this Agreement and the Renewal Terms,
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if any, as set forth in Section 5.
1.15 "Territory" means the United States and its possessions.
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1.16 "Upgrade Package" means an addition to a Basic Package consisting of
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one additional scene captured at the same designated Property of the Basic
Package, converted into one additional Jutvision Image for the scene captured.
2. PROVISION OF PRODUCTION SERVICES;
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2.1 Sales and Billing. Jutvision will be responsible for receiving and
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fulfilling orders for Basic Packages and Upgrade Packages. Jutvision will
assume all costs and responsibility for invoicing and collecting revenues for
all sales of Basic Packages and Upgrade Packages; provided, however, that
Jutvision does not assume the risk of collection. Jutvision will develop and
implement a customized electronic order form permitting Sales Agents to submit
orders for Production Services to Jutvision via the Internet. Sales Agents may
purchase Basic Packages and Upgrade Packages as required.
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2.2 Image Capturing, Processing and Posting. Jutvision will have sole
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responsibility for, and will bear all costs associated with, capturing images at
designated sites through its Service Provider Network, processing captured
images to create Jutvision Images and posting Jutvision Images to the Company
Site. Company will permit such postings, and the parties will use best efforts
to work together (i) to expeditiously implement a system whereby Jutvision will
be capable of posting Jutvision Images to Company Site and (ii) to maintain
Jutvision's ability to post Jutvision Images to Company Site throughout the
Term. The parties will also use best efforts to expeditiously establish file
naming formats and scripts that will connect the Jutvision Images to the
appropriate listings on the Company Site, including a method to indicate the
originating Sales Agent. Jutvision will use commercially reasonable efforts to
make a member of its Service Provider Network available to capture Jutvision
Images of a Property within forty-eight (48) hours of receiving an order for
Production Services from a Sales Agent. In addition, Jutvision will use
commercially reasonable efforts to process and post each Jutvision Image on
behalf of all Sales Agents within four (4) business days after capture of such
Jutvision Image, in each case to the extent Jutvision has the right to do so,
provided that such posting is not delayed by factors attributable to Company or
Sales Agents.
3. MARKETING AND PROMOTION
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3.1 Company Obligations. Company agrees to market, promote and facilitate
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sales of the Production Services as follows:
(a) Company Site. Company agrees to market and promote the Production
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Services on the Company Site. Such marketing and promotion will include, without
limitation:
(i) inclusion of one or more electronic order forms on the
Company Site for "Members Only" permitting Sales Agents to submit orders for
Production Services to Jutvision via the Internet, or alternatively, at
Company's election, Company will provide a link on the Company Site for "Members
Only" to an electronic order form on a server operated by Jutvision;
(ii) all subject to Company's ongoing approval, on a prominent
page within the Company Site, either on Company's consumer Web site or "Members
Only" site, or both, as determined by Company, and, on each page of the Company
Site displaying Jutvision Images, inclusion of a Jutvision logo, that, when
clicked on, links directly to an HTML page containing an electronic order form
permitting Sales Agents to submit orders for Production Services to Jutvision
via the Internet;
(iii) inclusion on the Company Site, either on Company's consumer
Web site or "Members Only" site, or both, as determined by Company, of a gallery
of Jutvision Images produced by Jutvision on behalf of Sales Agents and selected
by Company in its reasonable judgment; provided that the page containing such
gallery will include a Jutvision logo, that, when clicked on, links directly to
an HTML page containing an electronic order form permitting Sales Agents to
submit orders for Production Services to Jutvision via the Internet.
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Without the prior approval of Jutvision, Company will not display any
advertisements of any competitor of Jutvision on any HTML page that contains a
Jutvision Image and is located on the Company Site.
(b) Communications with Sales Agents. To the extent Company creates
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and distributes printed or electronic communications to Sales Agents, including
without limitation email messages and print advertising in flyers, newsletters
and general mailings, Company, in collaboration with Jutvision, but subject to
Company's ongoing approval, will include in such advertising a Jutvision logo
and a brief, suitable reference to the availability of the Production Services.
Company may, but shall not be required to, supply Jutvision from time to time
with Company's list of Sales Agents and to permit Jutvision to use such list
solely and for no other purpose than to promote Jutvision and the Production
Services; a breach of this provision shall entitle Company to seek immediate
injunctive relief and damages.
(c) Seminars; Trade Shows; Conventions. Company may, but shall not be
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required to, invite Jutvision to speak at seminars Company conducts for Sales
Agents during the Term. Company or its sales representatives may, but shall not
be required to, distribute to Sales Agents at seminars, tradeshows and
conventions marketing materials created by Jutvision that promote the Production
Services. In addition, Company may, but shall not be required to, afford
Jutvision an opportunity to participate, in a booth or by means of a scheduled
demonstration, in trade shows or conventions Company attends or hosts during the
Term. Company may, but shall not be required to, explain to Sales Agents the
value and benefit to the customer of the Production Services and provide Sales
Agents with demonstrations of the Production Services.
(d) Company Offices. Company will use best efforts to permit
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Jutvision, at each of Company's offices, to make presentations regarding the
Production Services and to train Sales Agents how to promote the Production
Services. Jutvision will remain available to provide such training during the
Term, and the parties will determine a suitable schedule for such presentations
and training.
(e) Preferred Vendor. To the extent Company establishes during the
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Term a "preferred vendor" program offering vendor participants promotional
advantages and opportunities, Company will offer Jutvision an opportunity to
participate in such preferred vendor program on terms consistent with those
offered to other vendors of Company.
(f) Cooperation. Company shall cooperate with Jutvision in the
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performance of Jutvision's obligations under this Agreement.
3.2 Jutvision Obligations.
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(a) Listing Tools. Jutvision agrees to develop valuable tools,
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including, without limitation, flip charts, software and/or CD ROM products,
specifically designed to help Sales Agents market themselves and obtain listings
from, and enhance customer relationships with, property sellers ("Listing
Tools"). Jutvision will supply such Listing Tools, free of charge, to those
Sales Agents who order in excess of a minimum quantity of virtual tour
Production Services, such quantities to be determined by Jutvision. In addition,
Jutvision will supply
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Company with the Listing Tools, free of charge. Subject to the mutual agreement
of Jutvision and the Company, the Listing Tools furnished to the Company and the
Sales Agents shall include the Company's branding elements, with the aim of
promoting the Company as a leading real estate brokerage firm, providing to its
customers leading-edge Internet and technology services supporting the sale of
residential properties.
(b) Cooperation. Jutvision and Company will, from time to time, use
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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. PROPRIETARY RIGHTS
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4.1 Software.
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(a) Jutvision hereby grants to Company a nonexclusive, worldwide,
royalty-free license to use the Software during the Term, in object code only,
to display Jutvision Images on the Company Site. "Use" means storing, loading,
installing, executing or displaying the Software. Company may not modify the
Software or disable any licensing or control features of the Software.
(b) The Software is owned and copyrighted by Jutvision. The license
set forth in this Section 4.1 confers no title to, nor ownership in, the
Software and is not a sale of any rights in the Software.
(c) Company 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. Company must reproduce all copyright notices in
the original Software on all copies or adaptations. Company may only transfer
class files when they are called on by a "requesting" server in the normal
course of Java Applet execution. Company may not distribute the Jutvision for
Java Class files. Any transfer or copying of the Software by Company other than
as expressly provided herein constitutes a material breach of this Agreement.
(d) Company may only use the Software to read .jut files, a file format
proprietary to Jutvision.
(e) Company may not tamper with or alter in any way the image
displayed when loading each Jutvision Image and Company shall not hinder the
Jutvision Splash Screen from being fully visible upon loading of each Jutvision
Image.
(f) Company will not disassemble or decompile the Software including
single Jutvision Java Class files under any circumstances. The disassembly or
decryption by Company of any Jutvision Java Class file constitutes a material
breach of this Agreement.
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(g) Company will not export or re-export the Software or any copy or
adaptation in violation of any applicable laws or regulations.
(h) 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. Company has only those rights
provided for such Software and any accompanying documentation by the applicable
FAR or DFARS clause or agreement between Company and Jutvision.
4.2 Jutvision Images. Jutvision hereby grants to Company a nonexclusive,
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worldwide, royalty-free, nontransferable license to display, perform, reproduce
and distribute or otherwise use in any legal fashion, as the Company and/or the
Sales Agent may deem appropriate in their sole discretion. The foregoing license
does not include any right to grant or authorize sublicenses, and Jutvision owns
all Jutvision Images.
4.3 Trademarks.
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(a) Jutvision Marks.
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(i) Jutvision owns and at all times will continue to own the
Jutvision Marks. Company will not take any actions inconsistent with Jutvision's
ownership rights.
(ii) Subject to the restrictions set forth herein, Jutvision
hereby grants Company a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the Jutvision Marks, during the Term, with
Jutvision's approval, which Jutvision will not unreasonably withhold or delay,
solely in connection with promotion and marketing of the Production Services as
provided in Section 3. Company' use of the Jutvision Marks will not create in
Company any right, title or interest therein or thereto. All use by Company of
the Jutvision Marks will inure to the exclusive benefit of Jutvision. At
Jutvision's reasonable request, Company will assist Jutvision with the
protection and maintenance of the Jutvision Marks. Company may only use the
Jutvision Marks as expressly permitted herein. Company 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) Company Marks.
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(i) Company owns and at all times will continue to own the
Company Marks. Jutvision will not take any actions inconsistent with Company'
ownership rights.
(ii) Subject to the restrictions set forth herein, Company hereby
grants Jutvision a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to
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use the Company Marks, during the Term, with the prior written approval of
Company and Company's counsel, which Company and its counsel will not
unreasonably withhold or delay, solely in connection with promotion and
marketing of the Production Services to Company sales agents. Jutvision's use of
the Company Marks will not create in Jutvision any right, title or interest
therein or thereto. All use by Jutvision of the Company Marks will inure to the
exclusive benefit of Company. At Company' reasonable request, Jutvision will
assist Company with the protection and maintenance of the Company Marks.
Jutvision may only use the Company Marks as expressly permitted herein.
Jutvision agrees to use the Company Marks in a manner commensurate with the
style, appearance and quality of Company' services and/or products bearing such
marks.
4.4 Limitation on Grant of Rights. Except as expressly provided herein,
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neither party receives any other right or license to the technology or
intellectual property of the other party.
5. TERM AND TERMINATION
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5.1 Term. Unless earlier terminated as set forth below, this Agreement
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will become effective upon the Effective Date and continue for a period of one
(1) year measured from the Initial Posting Date (the "Initial Term").
5.2 Termination for Insolvency. If voluntary or involuntary proceedings by
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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
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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
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Agreement:
(a) Jutvision will cease all use of the Company 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;
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(c) Company 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 4.1 and 4.2
shall survive for a period of six (6) months thereafter with respect to the
Software and Jutvision Images provided to Company hereunder prior to expiration
or termination, to the extent that such Jutvision Images accompany listings on
the Company Site and such Software 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.
5.5 Survival of Certain Terms. The provisions of Sections 4.1(b), 4.1(e),
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4.1(f), 4.1(g), 4.1(h), 4.2(a), 4.3(a)(i), 4.3(b)(i), 4.4, 5.3, 5.4, 6, 7, 8, 9,
10.1, 10.2, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10 and 10.11 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.
6. CONFIDENTIALITY
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6.1 General. Subject to Section 10.2, each party agrees to treat the other
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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 10.2, 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.
6.2 Exceptions. The foregoing restrictions will not apply to information
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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) solely to the extent of such disclosure, is disclosed
in good faith by the Disclosing Party to a legitimate potential, or actual,
strategic investor, investment banker, venture capital firm, or consultant; (iv)
is rightfully received from a third party without restriction; (v) is
independently developed by the Receiving Party; (vi) has been approved for
release by written authorization of the Disclosing Party; (vii) 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 (viii) 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.
7. REPRESENTATIONS AND WARRANTIES
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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
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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 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE ONLY
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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
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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.
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 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.
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9. LIMITATION OF LIABILITY
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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
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10.1 Independent Contractors. The relationship of Jutvision and Company
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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. The parties may agree to participate in a joint press
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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. 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.
10.3 Governing Law. This Agreement will be governed by and construed under
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the laws of the State of Florida without reference to conflict of laws
principles.
10.4 Entire Agreement. This Agreement, together with all exhibit and
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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.
10.5 Notices. Any notice required or permitted by this Agreement will be
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deemed given if sent by registered mail, postage prepaid, addressed to the other
party at the address set forth 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 Company: Jill Fisher Powers, Esquire
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Arvida Realty Services
19353 U.S .Highway 19 North, Suite 100
Clearwater, Florida 33764
with a copy to: Linda Burger, Executive Vice-President
Arvida Realty Services
19353 U.S. Highway 19 North, Suite 100
Clearwater, Florida 33764
If to Jutvision: Andrew Laszlo
Senior Vice President of Business Development
Jutvision Corporation
124 University Avenue
Third Floor
Palo Alto, CA 94301
Tel: 650-325-6787 ext. 25
Fax: 650-325-9337
with a copy to: A. Hunter Farrell, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Tel: 650-493-9300
Fax: 650-493-6811
10.6 Force Majeure. Nonperformance of either party will be excused to the
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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.
10.7 Non-Assignability and Binding Effect. Except as expressly provided
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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.
10.8 Modification; Waiver. No modification of or amendment to this
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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.
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10.9 Headings. The headings to the sections and subsections of this
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Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
10.10 Severability. In the event that it is determined by a court of
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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.
10.11 Counterparts; Facsimile Signatures. This Agreement may be executed
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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 ST. JOE REAL ESTATE SERVICES, INC.
d/b/a ARVIDA REALTY SERVICES
By: /s/ Andrew P. Laszlo By: /s/ Jill Fisher Powers
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Name: Andrew P. Laszlo Name: Jill Fisher Powers
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Title: SVP, Business Development Title: Excecutive Vice-President
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Date: March 5, 1999 Date: March 25, 1999
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