Visual Content Services Agreement - Internet Pictures Corp. and eBay Inc.
VISUAL CONTENT SERVICES AGREEMENT
THIS VISUAL CONTENT SERVICES AGREEMENT (the "Agreement") is entered into
as of April 19, 2000 (the "Effective Date"), between Internet Pictures
Corporation, a Delaware corporation with an office located at 124 University
Avenue #201, Palo Alto, CA 94301 ("IPIX"), and eBay Inc., a Delaware corporation
with an office located at 2145 Hamilton Avenue, San Jose, CA 95125 ("eBay").
WHEREAS, IPIX provides visual content and other digital media solutions to
operators of Internet websites;
WHEREAS, eBay operates an Internet online listing and trading site that
brings together sellers and buyers of goods and services;
WHEREAS, eBay desires to offer enhanced visual content services to
users of its website;
WHEREAS, IPIX desires to be the exclusive provider of the Services
(defined below) for the Sites (defined below); and
WHEREAS, eBay desires to engage IPIX as its exclusive provider of the
Services for the Sites as set forth below;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
DEFINITIONS
1.1 "Base Level Bandwidth" means the level of bandwidth consumed in
delivering the jointly developed Basic Service to Customers, as further
described in Exhibit A.
1.2 "Basic Service" means the service that IPIX will offer each Customer
free of charge, as further described in Exhibit B.
1.3 "Confidential Information" means any confidential or proprietary
information of a party (the "Disclosing Party") which is disclosed to the other
party (the "Receiving Party") in a writing marked confidential or, if disclosed
orally, is identified as confidential at the time of disclosure and is
subsequently reduced to a writing marked confidential and delivered to the other
party within 10 days of disclosure. The terms of this Agreement will constitute
Confidential Information.
1.4 "Customer" means any person who accesses any page on a Site.
1.5 "Deal Quarter" means a three-calendar-month period during the
Term.
1.6 "eBay Marks" means the eBay trademarks, service marks and/or trade
names designated by eBay for use in the performance of this Agreement.
1.7 "eBay Site" means the website owned and operated by eBay accessible at
www.ebay.com (or any successor URL) that provides online listing and trading
services to Customers, but shall not include eBay Great Collections(TM) or the
Automotive areas and any content or data related thereto.
1.8 "eBay Templates" means the underlying data and structure for
pages of the eBay Site and applicable Additional Sites (as defined in
Section 4.3(b)) provided by eBay to IPIX pursuant to this Agreement,
and any interfaces supplied by eBay during the Term to facilitate
integration and operation of the Image Management Solution.
1.9 "eBay Bulk Upload Tools" means bulk upload and listing tools owned
or controlled by eBay and provided by eBay to IPIX during the Term.
1.10 "Enhanced Services" means enhanced Image products and services
produced by IPIX that IPIX and/or eBay will offer Customers for a fee, as
further provided in Exhibit B.
1.11 "First Level Support" means the customer support for the Services
eBay provides directly to Customers and the Help Tools, as further provided in
Section 3.3(a) and Exhibit H.
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1.12 "Image" means any digital photographic image to be included
in Listings.
1.13 "IPIX Image" means any Image produced by or on behalf of
IPIX for a Customer.
1.14 "IPIX Marks" means the IPIX trademarks, service marks and/or trade
names designated by IPIX for use in the performance of this Agreement.
1.15 "IPIX Technology" means the proprietary software and hardware
developed by or licensed to IPIX and used to develop and/or implement the
Services and/or provide the Services to Customers (including but not limited to
the Image Management Solution and Plug-Ins).
1.16 "Listing" means any listing submitted by a Customer on any Site.
1.17 "Penetration Rate" means the total number of Listings utilizing the
Enhanced Services during a Deal Quarter divided by the total number of Listings
on the Sites during such Deal Quarter.
1.18 "Performance Standards" means the parameters described in Exhibit
A.
1.19 "Plug-In" means a plug-in module, Active X-based control or other
tool or application designed for integration and use with a web browser to
enable a Customer to use the Services.
1.20 "Second Level Support" means IPIX support to eBay customer support
personnel, as further provided in Section 3.3(b) and Exhibit H.
1.21 "Service Provider Network" means the managed network of trained
videographers/photographers with whom IPIX has entered into agreements to
capture images at designated sites.
1.22 "Services" means collectively the Basic Service, Enhanced
Services and Virtual Tour Services.
1.23 "Sites" means the eBay Site and the Additional Sites.
1.24 "Standard Images" mean still Images up to 400 pixels by 300 pixels.
1.25 "Term" means the term of this Agreement as set forth in
Section 6.
1.26 "Third Level Support" means IPIX customer support directly to
Customers solely in the event that both First Level Support and Second Level
Support are inadequate, as further provided in Section 3.3(b) and Exhibit H.
1.27 "Transferred Information" means any information passed from eBay to
IPIX regarding eBay users and their trading activities.
1.28 "Virtual Tour Images" means Images used for display in a fully
interactive 360 degree virtual tour format targeted at automobiles, boats,
antique furniture, real estate, resort properties and other objects suitable for
panoramic imaging.
1.29 "Virtual Tour Services" means the capture, processing, hosting and
distribution services for Virtual Tour Images offered by IPIX where the Images
are captured by the Customer or through the Service Provider Network, as further
described in Exhibit B.
2. SERVICES AND IMPLEMENTATION
2.1 Services. As further provided below, IPIX will provide a complete,
turn-key Image management solution for use by Customers (the "Image Management
Solution"), which will include: (i) an easy-to-use integrated Image submission
and hosting interface supporting the drag and drop of Customer-provided Images
(where applicable), and browser-based submission of such Images (where drag and
drop is infeasible) by Customers into the "Sell Your Item" pages of the Sites or
other similar pages on the Sites that Customers use to list items for trading;
and (ii) the uploading and hosting of such Images on IPIX servers and the
display and distribution of such Images on the Sites.
(a) Basic Service. IPIX shall offer each Customer the Basic
Service in accordance with the schedule and criteria set forth in Exhibits A
and B.
(b) Enhanced Services. IPIX shall offer Customers the Enhanced
Services in accordance with the roll-out schedule and criteria set forth in
Exhibits A and B.
(c) Virtual Tour Services. IPIX shall also offer Virtual Tour
Services to Customers on a mutually agreeable off-site (i.e., not on the Sites),
co-branded website hosted by IPIX, the presentation
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of which shall be approved by eBay in writing before such services are made
commercially available (with such approval not to be unreasonably withheld or
delayed). Such website will be subject to Section 12 ("Customer Information")
regarding treatment of Referrals (as defined in Section 5.4) and use of Customer
Information. IPIX will make available the Virtual Tour Services to Customers and
at such prices as IPIX may determine in its discretion (subject to the
requirements of Section 2.1(d) below).
(d) Services Pricing. During the Term, if IPIX furnishes a palette
of Image services substantially similar to the Services for online listing and
trading to any third party on pricing terms more favorable than the pricing
terms offered to eBay herein, eBay may elect to incorporate such pricing terms
into this Agreement in its sole discretion (provided that Virtual Tour Services
are excluded from such obligation). Moreover, if IPIX's then-current effective
national pricing for Virtual Tour Services is more favorable than the pricing
offered to eBay Customers, the parties shall immediately modify the Agreement to
reflect such favorable pricing. The parties will mutually agree on pricing for
all Services other than Virtual Tour Services, and will periodically review the
then-current pricing for the Services.
(e) Current Version. Subject to Section 3.2, during the Term, IPIX
will offer to eBay the most current version of the Services offered by IPIX,
provided that eBay will not be obligated to introduce or accept such version
until eBay is ready to introduce or accept such version and has approved such
version pursuant to the approval process set forth in Section 2.2 (c). IPIX will
have no obligation to offer individual features of a version separate from the
version as a whole.
(f) Access to Sites. Subject to the terms and conditions of this
Agreement, eBay will offer the Services on the Sites and will permit IPIX to
provide the Services on the Sites by means of the Image Management Solution;
provided that, other than with respect to patches and error corrections
necessary for compliance with the requirements of Exhibit A, IPIX shall not
alter, delete or modify the Image Management Solution or the Services (including
without limitation modifying the Plug-Ins or requiring any different or
additional Plug-Ins) or any parts thereof or the user experience associated with
the Image Management Solution or the Services without first receiving eBay's
prior written approval pursuant to Section 2.2(c) below.
(g) Management Reviews. Executive representatives of each party will
meet every two months during the Term to discuss project performance, concepts
for the development and rollout of additional Enhanced Service consistent with
Exhibit B and other appropriate issues.
2.2 Implementation.
IPIX Obligations. IPIX will use commercially reasonable efforts to develop the
Image Management Solution and develop and host the Services under an eBay
private label including a prominent "Powered by IPIX" designation (as described
in Exhibit B, section 1(g)), and IPIX will reasonably cooperate with eBay to
integrate the Image Management Solution and Services into the "Sell Your Item"
and "View Item" pages of the eBay Site. IPIX will use commercially reasonable
efforts to develop and implement the Services pursuant to the development
schedule and specifications set forth in Exhibit B, and, commencing on the date
of the Initial Launch (as defined below), maintain the Services as specified in
Exhibit A and in compliance with eBay's general promotional guidelines (or, if
eBay develops unique guidelines for eBay-owned services, such unique guidelines)
set forth on the Sites. IPIX will also provide integration and functionality
such that the Services will be reasonably enabled to work in conjunction with
bulk upload and similar listing tools reasonably designated by eBay, and will be
enabled to work with Mr. Lister and Auction Assistant, and any additional eBay
Bulk Upload Tools mutually agreed by the parties, provided that it shall be
eBay's responsibility to implement any modifications of the eBay Bulk Upload
Tools required for integration of the Services. IPIX will, free of charge to
eBay, operate and maintain the IPIX Technology for the purpose of providing the
Services to Customers, and will cooperate with eBay to develop the interfaces
between the eBay listing and bidding processes and the Services. IPIX will use
commercially reasonable efforts to develop, support and maintain any Plug-Ins
required for eBay users to use the Services, and the parties will cooperate to
implement the mechanism for such Plug-Ins to be downloaded by Customers at no
charge.
(b) eBay Obligations. eBay will use commercially reasonable efforts
to facilitate the integration of the Image Management Solution into the Sites
and the eBay Bulk Upload Tools, subject to this Section 2. Moreover, eBay will
use commercially reasonable efforts to cooperate with IPIX in
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fulfilling IPIX's obligations hereunder, including without limitation: providing
the eBay Templates and eBay Bulk Upload Tools to IPIX; modifying the eBay Bulk
Upload Tools as required for integration with the Services; working with IPIX to
implement the Image Management Solution on the Sell Your Item and other relevant
pages on the Sites; providing IPIX with technical information necessary to
enable IPIX to serve Images on the "View Item" pages on the Sites; and making
the appropriate introductions to the development teams of Mister Lister(TM) and
Auction Assistant(TM) to facilitate the integration of bulk upload and similar
listing tools. As further provided in Exhibit B, IPIX may implement an IPIX logo
watermark on all still Images submitted through the Services. eBay may, in its
reasonable discretion based on eBay user feedback, determine at any time that
the watermark should not be displayed on the Images linked or posted after that
time, and IPIX will cease inserting the watermark on the Images within 14 days
of notification of such determination from eBay; provided, however, that, in
such event, the parties shall mutually establish some other IPIX branding
mechanism of like frequency (and which complies with eBay's advertising
guidelines) to substitute for the IPIX logo watermark.
(c) Approval. When IPIX has developed and is prepared to implement
the Services as provided in Section 2.2(a), a new version of the Services as
contemplated in Section 2.1(e), an Additional Site as provided in Section
4.3(b), an Additional Service or IPIX Proposed Service as provided in Section
4.3(c), or any other alteration, modification or addition to the Services as
contemplated in Section 2.1(f) (collectively, the "Offerings"), IPIX shall make
the Offerings available to eBay for review in a format mutually agreed by the
parties for review and acceptance by eBay. The parties will cooperate to develop
written specifications (such as an engineering requirements document (ERD)) for
the Offerings, which shall include specific acceptance test criteria and
procedures, and which both parties shall approve in writing prior to any
obligation of IPIX to commence or continue development or implementation. eBay
shall have 30 days, or such other period as may be stated in the specifications,
following the delivery of an Offering to determine in its reasonable judgment
whether the Offering conforms to the applicable specifications (the "Initial
Acceptance Period"). eBay agrees to inform IPIX during the Initial Acceptance
Period of any non-conformance describing the nature of the non-conformance. If
no notice of non-conformance is received by IPIX before the end of the Initial
Acceptance Period, the Offering shall be deemed to be accepted by eBay. If eBay
reasonably rejects an Offering as non-conforming, IPIX shall promptly correct
the non-conformance and deliver a modified Offering to eBay within the period
mutually agreed by the parties. If no period is specified, the period will be 30
days. eBay shall then determine in its reasonable judgment whether the modified
Offering conforms to the applicable specifications in accordance with the
procedures in this Section 2.2(c). If eBay then reasonably rejects the modified
Offering, eBay, in its sole discretion, based on the applicable specifications
and in accordance with the procedures set forth in this Section 2.2(c), (i) may
allow IPIX to continue resubmitting modified Offerings until they meet the
acceptance criteria; (ii) waive the unsatisfied acceptance criteria; (iii) if
the Offering is an Additional Service as defined in Section 4.3(c) and it has
not been launched in accordance with the schedule set forth in Section 4.3(c),
eBay may terminate any obligation by eBay with respect to such Offering in
accordance with Section 4.3(c); or (iv) if the Offerings are those to be
included in the Initial Launch and Final Launch, eBay may terminate this
Agreement with no liability.
(d) Changes to eBay Templates. eBay may modify the eBay Templates
provided from time to time in its sole discretion, and IPIX will provide eBay
with guidance regarding implementation of such modified templates throughout the
Services promptly after receiving such templates. eBay will provide IPIX with
reasonable advance notice of such modifications, and IPIX's implementation of
any necessary changes in the Image Management Solution as a result of the new
templates will be subject to the approval process specified in Section 2.2(c).
(e) Delay. The parties acknowledge that each is dependent on the
cooperation of the other to meet the development schedule set forth in Exhibit
B, and each party shall devote appropriate product management and technical
support adequate to meet such schedule. Unless otherwise mutually agreed by the
parties in writing, if the Final Launch (as defined in Exhibit B) has not
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occurred by December 31, 2000, except to the extent such failure is due to
eBay's failure to perform tasks which are identified as its responsibility in
this Section 2.2 and which are a prerequisite for IPIX's timely performance),
then eBay may thereafter terminate this Agreement upon written notice to IPIX at
any time.
3. PERFORMANCE STANDARDS; CUSTOMER SUPPORT
3.1 Performance Standards. IPIX will ensure that the provision of the
Services meets the criteria described in Exhibits A and B. * IPIX will provide
to eBay * dedicated product management and technical support available on a
24-hours, 7 days-a-week remote basis to support the integration of the Services
into the Sites and on an ongoing basis and will provide reasonable on-site
presence at eBay's Silicon Valley facilities during the launch and integration
phases to ensure smooth integration. Additionally, IPIX will ensure that, during
the term of the integration and, as further requested by eBay, for a reasonable
time thereafter, the dedicated integration team will include the following
members of the IPIX engineering team, so long as each remains an employee of
IPIX: Andy Mutz, Adam Sah, Joseph Molnar, Diana Stanley and Lisa Wood. IPIX will
treat eBay, with respect to service commitments, feature sets and user
experience, at least as favorably as it does its most strategic partners to
which IPIX provides analogous services.
3.2 Current Technology. IPIX agrees to use commercially reasonable efforts
to keep the IPIX Technology current and at a level at least as high as the level
comparable to the level of technology generally used in the professional
photo-hosting industry for similar services; provided, however, that, in the
event, pursuant to Section 2.1(e), eBay declines to introduce or accept the most
current version of the Services offered by IPIX reasonably promptly following
IPIX's offer to eBay of such version, IPIX shall have no further obligation with
respect to that version pursuant to this Section 3.2.
3.3 Customer Support; Training.
(a) First Level Support. eBay will provide First Level Support to
Customers using the Services. IPIX will provide English-language FAQs,
tutorials, and similar aids ("Help Tools") to help eBay users in the use of the
Services, including automated, Web-based customer support for the Services
consisting of an HTML page with a menu of support topics. eBay will host and
maintain the Help Tools on an eBay server.
Second and Third Level Support. IPIX will provide Second Level Support to eBay
customer support personnel to enable such personnel to respond to Customer
inquiries about the Services. If eBay customer support personnel have contacted
IPIX to obtain Second Level Support and eBay reasonably determines after
following eBay's internal escalation process that IPIX's Second Level Support is
insufficient to enable eBay personnel to address a Customer inquiry, eBay
personnel may redirect such inquiry directly to IPIX for Third Level Support.
Training. IPIX will provide free, live training regarding Services support to
eBay's customer support organization. During the initial rollout of any new
Services or Services to any new Site and for 2 weeks after such rollout, IPIX
will provide a full-time employee in eBay's Salt Lake City location free of
charge to help address customer support issues. An IPIX representative will also
be available free of charge from time to time to participate in live, real-time
chat board discussions at eBay's request. If functional or design errors in the
Services result in an increased Customer support burden, IPIX will remedy such
errors promptly to the extent such remedy is not delayed as a result of eBay's
act or failure to act.
(d) Response Times and Reports. IPIX will provide the customer
support specified in this Section 3 in accordance with the criteria set forth
in Exhibit H.
4. MARKETING; EXCLUSIVITY
4.1 Marketing Plan. Each party will use reasonable commercial efforts to
market and promote the Services to increase the usage thereof through a variety
of promotional mechanisms, in a mutually-agreeable manner, in accordance with
the marketing plan set forth in Exhibit C, as such plan may be modified from
time to time in writing by mutual agreement of the parties.
4.2 Promotional Impressions. *
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4.3 Exclusivity. *
(c) Additional Services.
(i) *
(ii) IPIX Requests. To the extent IPIX desires to add an
additional Image submission or hosting service to the palette of Enhanced
Services (an "IPIX Proposed Service"), the parties shall discuss such IPIX
Proposed Service in good faith, subject to Exhibit B. In the event the parties
mutually agree that IPIX should provide such IPIX Proposed Service on a Site,
the parties will mutually agree upon a launch date and such IPIX Proposed
Service shall become an "Enhanced Service" upon the launch of such IPIX Proposed
Service on the Site. Such IPIX Proposed Service will be subject to the approval
process in Section 2.2(c).
(d) Digitization Services. None of the restrictions set forth in
this Section 4.3 will limit eBay's ability to enter into any agreements or
relationships with any party, nor restrict promotional activities, with respect
to the digitization portion of any Image services (other than the capture and
digitization of Virtual Tour Images), but will only apply to the submission and
hosting portions of the process; provided, that eBay will discuss in good faith
with IPIX opportunities whereby IPIX would provide digitization services to
Customers.
(e) *
5. FINANCIAL
5.1 *
5.2 *
5.3 *
5.4 *
5.5 *
5.6 Payment Terms; Taxes. Overdue payments shall accrue interest, at the
lesser of 1-1/2% per month or the maximum allowable interest under applicable
law, from due date until paid, and each party shall pay the other party's costs
of collection on such overdue payments, if any (including reasonable attorneys'
fees). Each party shall pay any sales, use or similar tax related to such
party's performance of its obligations or exercise of its rights under this
Agreement, exclusive of taxes based on the other party's net income.
5.7 IPIX Reports. IPIX shall provide eBay weekly technical performance
reports (including, but not limited to bandwidth and availability) and shall
provide eBay with written notice each time the delivery of the Basic Service
consumes bandwidth at a level equal to 80%, 90% or 100% of the Base Level
Bandwidth ("Bandwidth Notice"). Such written notice shall be provided within two
business days of the occurrence of such event. If eBay unilaterally requests
IPIX to modify the Basic Service in a manner that requires materially greater
bandwidth consumption than the Base Level Bandwidth and IPIX has not provided
eBay with the required Bandwidth Notice, eBay shall not be required to pay the
Additional Bandwidth Costs.
5.8 Inspection of Records. During the Term, and for 12 months thereafter,
each party will have the right, at its own expense and not more than twice in
any 12 month period, to authorize an independent auditor reasonably acceptable
to both parties to inspect those accounting records of the other party necessary
to verify the accuracy of funds paid to the auditing party pursuant to this
Section 5, provided that such independent auditor has executed a confidentiality
agreement with respect to such records that is reasonably acceptable to the
audited party. Such inspections will take place during the audited party's
normal business hours, upon not less than 10 days prior written notice to the
audited party.
5.9 Warrant. Within 15 days following the Effective Date, IPIX will
grant eBay a warrant to purchase 600,000 shares of common stock of IPIX at an
exercise price per share equal to the closing price of the common stock of IPIX
on the Nasdaq National Market on the Effective Date (the "Warrant"). The Warrant
shall expire 12 months after the termination
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or expiration of the Agreement. One-ninth (1/9) of the shares
subject to the Warrant will vest and become exercisable at the end
of each Deal Quarter during the term of the Agreement; provided,
however, that no further vesting of shares subject to the Warrant
shall occur following any expiration or termination of the
Agreement, notwithstanding Section 6.5 or anything to the contrary
herein. The Warrant will be exercisable on a net-exercise or
cashless exercise basis and shall be substantially in the form
attached hereto as Exhibit F.
6. TERM AND TERMINATION
6.1 Term. The term of the Agreement will commence on the Effective Date
and shall continue for 14 successive "Deal Quarters," with the first Deal
Quarter commencing on April 1, 2000.
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6.2 Right of First Discussion. eBay will extend to IPIX, at least 180
days prior to the expiration of the Agreement, a right of first discussion under
which IPIX would be afforded the initial discussions with eBay regarding
extension of the Agreement. Such discussion period would continue for at least
30 days, but in the event that no agreement is reached during such period, eBay
shall be free to engage in discussions with other parties, without an obligation
to re-initiate discussions with IPIX. In no event will this right of discussion
preclude eBay from responding to solicitations from third parties during the
Agreement, provided that eBay may not engage in material discussions with such
third parties regarding providing Image submission and hosting services until
the IPIX 30-day discussion period has lapsed, or unless IPIX is in breach of the
Agreement (including without limitation the Performance Standards in Exhibit A
and the Customer Support standards in Exhibit I).
6.3 Termination for Breach.
(a) Unless otherwise agreed in writing between the parties, and
except as set forth in this Section 6.3 and Exhibit A, a party may terminate
this Agreement in the event the other party breaches a material term, condition
or representation of this Agreement, and fails to remedy such default within 30
days after being notified by the non-breaching party of such breach or failure.
(i) The failure by IPIX to meet any of the Performance
Standards in Exhibit A, other than a Client Application Failure (as defined in
Exhibit A) and other than a failure resulting from eBay's act or failure to act,
shall constitute a material breach of this Agreement. If IPIX does not cure a
Server Application Error (as defined in Exhibit A) within 30 days after IPIX
discovers or is notified of such Server Application Error, eBay may then
terminate this Agreement by written notice without any further cure period. If
IPIX does not cure failures with respect to the General Latency and Uptime
Performance Standards within the 15-day cure period set forth in Exhibit A, eBay
may terminate the Agreement as set forth in Exhibit A. eBay may also terminate
the Agreement in the event IPIX repeatedly fails to meet the Performance
Standards set forth in Section 1 of Exhibit A in accordance with the provisions
set forth in Exhibit A.
(ii) A substantial and ongoing failure by IPIX to conform to
the customer support requirements in Exhibit H, other than a failure resulting
from eBay's act or failure to act, shall constitute a material breach of this
Agreement.
6.4 Effects of Termination. Except as provided below, upon
expiration or termination of this Agreement:
(a) IPIX will immediately cease all use of the eBay Marks;
(b) IPIX will continue to provide Services in a manner commensurate
with the quality of Services provided prior to such expiration or termination
and to support Customers who purchased such Services (or in the case of the
Basic Service, elected to use the Basic Service) during the Term for a minimum
of 75 days after the Listing corresponding to such Services is concluded, and
the licenses granted below under Section 7.2 and 7.3(b)(ii) will survive during
such period;
(c) eBay will cease all use of the IPIX Marks, IPIX Images and the
IPIX Technology and shall purge all IPIX Technology and IPIX Images from its
servers 75 days after the conclusion of every Listing for which Customers
purchased Services (or in the case of the Basic Service, elected to use the
Basic Service) during the Term.
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(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
Notwithstanding the foregoing, in the event of any termination of the Agreement
(but excluding the expiration of the Agreement, to which Section 6.2 applies,
termination by eBay pursuant to Section 2.2(e), and termination by IPIX pursuant
to Section 6.3) IPIX will continue, if requested by eBay, to provide the
Services and associated customer and technical support on a non-exclusive basis
for a period of 4 months after such termination (the "Transition Period"), in a
manner consistent with the manner in which the Services were provided during the
previous portion of the Term, in order to facilitate an orderly migration of the
Services. Each party shall continue to pay the other party amounts due under the
Agreement through the end of the Transition Period, and any licenses required
for such performance shall continue in effect during the Transition Period.
6.5 Survival of Certain Terms. The provisions of Sections 5.6, 5.8, 5.9,
6.4, 6.5, 7.1(a), 7.1(b) (solely with respect to the license to derivative works
of the Help Tools), 7.1(b)(ii-iv), 7.2(a), 7.2(b)(iii-iv), 7.3(a)(i), 7.3(b)(i),
7.4, 8, 9, 10, 11, 12 and 13 will survive the expiration or termination of this
Agreement for any reason. Except as otherwise expressly provided herein, all
other rights and obligations of the parties will cease upon expiration or
termination of this Agreement.
7. PROPRIETARY RIGHTS
7.1 IPIX Technology; Help Tools; IPIX Images
(a) All IPIX Technology, Help Tools and all IPIX Images are, and at
all times will remain, the exclusive property of IPIX, and no provision of this
Agreement implies any transfer to eBay of any ownership interest in the IPIX
Technology, Help Tools or the IPIX Images. The licenses set forth in Sections
7.1(b) confer neither title to, nor ownership in, the IPIX Technology, Help
Tools or the IPIX Images and are not a sale of any rights therein. eBay hereby
irrevocably assigns to IPIX all right, title and interest worldwide in and to
any modifications or derivative works of the IPIX Technology, Help Tools and
IPIX Images made by eBay, including without limitation any copyrights, trade
secrets, patent rights, moral rights, contract rights and licensing rights.
(b) IPIX hereby grants to eBay a nonexclusive, fully-paid,
royalty-free, worldwide license to use, reproduce, display, digitally perform
and/or modify the IPIX Technology, Help Tools and IPIX Images solely as
necessary to provide the Services in accordance with the Agreement. eBay may
sublicense or distribute the IPIX Technology or any portion thereof (such as
Plug-Ins), Help Tools and IPIX Images to Customers, solely as necessary to make
the Services available to Customers on the Sites. In addition, IPIX hereby
grants to eBay a perpetual, irrevocable, nonexclusive, fully-paid, royalty-free,
worldwide foregoing license to use, reproduce, digitally perform, display,
modify and distribute for any purpose any derivative works of Help Tools which
eBay creates in the process for localizing such Help Tools for use on
international Sites.
(i) As reasonably requested by IPIX from time to time, eBay
agrees to include such ownership restrictions and other licensing provisions
regarding the IPIX Technology, IPIX Images and Help Tools in relevant legends,
disclaimers and license agreements presented to Customers on the Sites in
connection with the Services. eBay shall reproduce all copyright notices in the
original IPIX Technology, Help Tools and IPIX Images and on all copies or
modifications thereof where the omission of such notices would jeopardize or
impair IPIX's intellectual property rights therein.
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(ii) Any transfer, copying, distribution or other use of the
IPIX Technology, Help Tools and IPIX Images by eBay other than as expressly
provided herein constitutes a material breach of this Agreement.
(iii) eBay will not disassemble or decompile the IPIX
Technology including single Java class files under any circumstances. The
disassembly or decryption by eBay of the foregoing constitutes a material breach
of this Agreement.
(iv) eBay will not export or re-export the IPIX Technology or
any copy or adaptation in violation of any applicable laws or regulations.
7.2 eBay Templates; eBay Bulk Upload Tools
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(a) All eBay Templates and eBay Bulk Upload Tools are, and at all
times will remain, the exclusive property of eBay, and no provision of this
Agreement implies any transfer to IPIX of any ownership interest therein. The
license set forth in Section 7.2(b) confers neither title to, nor ownership in,
and is not a sale of, the eBay Templates, the eBay Bulk Upload Tools or any
other eBay proprietary technology. IPIX hereby irrevocably assigns to eBay all
right, title and interest worldwide in and to any modifications of the eBay
Templates made by IPIX, including without limitation any copyrights, trade
secrets, patent rights, moral rights, contract rights and licensing rights.
(b) (i) eBay hereby grants to IPIX a nonexclusive, worldwide,
fully-paid, royalty-free license to use the eBay Templates during the Term
solely as necessary to develop and provide the Services on the Sites in
accordance with this Agreement. "Use" means reproducing, modifying storing,
loading, installing, digitally performing, and/or displaying the eBay Templates.
IPIX must reproduce all copyright notices in the original eBay Templates and
eBay Bulk Upload Tools and on all copies or modifications thereof.
(ii) eBay hereby grants to IPIX a nonexclusive, fully-paid,
royalty-free license to internally use the eBay Bulk Upload Tools during the
Term solely to facilitate the integration of bulk upload and similar listing
tools into the Image Management Solution. "Use" means reproducing, modifying
storing, loading, installing, digitally performing, and/or displaying the eBay
Bulk Upload Tools. The Bulk Upload Tools shall be deemed eBay Confidential
Information and may not be distributed or sublicensed in any form for any
purpose.
(iii) IPIX will not disassemble or decompile the eBay
Templates or eBay Bulk Upload Tools, including single Java class files under any
circumstances. The disassembly or decryption by IPIX of any Java class file
constitutes a material breach of this Agreement.
(iv) IPIX will not export or re-export the eBay Templates or
eBay Bulk Upload Tools or any copy or adaptation in violation of any applicable
laws or regulations.
7.3 Trademarks.
(a) IPIX Marks.
(i) IPIX owns and at all times will continue to own the IPIX
Marks. eBay will not take any actions inconsistent with IPIX's ownership rights.
(ii) Subject to the restrictions set forth herein, IPIX hereby
grants eBay a nonexclusive, worldwide, royalty-free, fully paid, nontransferable
right to use the IPIX Marks during the Term, subject to the prior approval of
IPIX, which IPIX shall not withhold or delay unreasonably, solely in connection
with the offering, promotion and marketing of the Services as provided in
Section 4. eBay's use of the IPIX Marks will not create in eBay any right, title
or interest therein or thereto. All use by eBay of the IPIX Marks will inure to
the exclusive benefit of IPIX. At IPIX's reasonable request, eBay will assist
IPIX with the protection and maintenance of the IPIX Marks. eBay may only use
the IPIX Marks as expressly permitted herein. eBay agrees to use the IPIX Marks
in a manner commensurate with the style, appearance and quality of IPIX's
services and/or products bearing such marks.
(b) eBay Marks.
(i) eBay owns and at all times will continue to own the eBay
Marks. IPIX will not take any actions inconsistent with eBay's ownership rights.
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(ii) Subject to the restrictions set forth herein, eBay hereby
grants IPIX a nonexclusive, worldwide, royalty-free, fully paid, nontransferable
right to use the eBay Marks during the Term, subject to the prior approval of
eBay, which eBay shall not withhold or delay unreasonably, solely in connection
with the offering, promotion and marketing of the Services as provided in
Section 4. IPIX's use of the eBay Marks will not create in IPIX any right, title
or interest therein or thereto. All use by IPIX of the eBay Marks will inure to
the exclusive benefit of eBay. At eBay's reasonable request, IPIX will assist
eBay with the protection and maintenance of the eBay Marks. IPIX may only use
the eBay Marks as expressly permitted herein. IPIX agrees to use the eBay Marks
in a manner commensurate with the style, appearance and quality of eBay's
services and/or products bearing such marks.
(c) Guidelines. Each party's use of the other party's Mark will
comply with the standard written guidelines provided by such other party;
modifications or additions to such policies will be promptly provided to the
other party. If at any time any party determines that another party's use of the
Marks does not follow its guidelines, it will notify the other party and that
party will promptly revise its use of the Marks to so conform with the written
guidelines within 30 days. If a party has been notified of non-conforming use of
the other's Marks and fails to conform such use within 30 days, the other party
may, in its sole discretion, revoke the trademark license provided in this
Section 7.3.
(d) Changes, Additions or Substitutions of Marks. Each party
reserves the right to change its Marks, add new Marks or substitute new Marks
for existing Marks. The party making such changes shall provide the other
parties with written notice and with examples of the new Marks. The party
receiving such notice shall make reasonable commercial efforts to promptly
change its use of the Marks to comply with such change, addition or
substitution.
7.4 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.
7.5 Joint Development. Ownership of the intellectual property rights in
any materials jointly developed by the parties in connection with this Agreement
shall be specified in the applicable ERD, statement of work or other
specifications for such materials.
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8. CONFIDENTIALITY
8.1 General. Subject to Section 13.3, each party agrees that (a) it shall
not disclose to any third party or use any Confidential Information disclosed to
it by the other except as expressly permitted in this Agreement, and (b) it
shall treat the other party's Confidential Information with the same degree of
care it uses to protect its own information of a similar nature, but in no
instance shall it use less than reasonable care. Notwithstanding anything to the
contrary in this Agreement, in the event either party is required to publicly
disclose the Agreement (or any element of the Agreement) pursuant to any
regulatory or other governmental disclosure requirement, such party agrees to
notify the other of such requirement and agrees to work with the other party and
take all necessary steps to obtain confidential treatment of the Agreement and
all the terms and conditions therein.
8.2 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 contemplates, 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.
9. REPRESENTATIONS AND WARRANTIES
9.1 Warranty. IPIX hereby represents and warrants to eBay that any content
provided by IPIX to eBay (including but not limited to content contained in the
Promotional Impressions and the Help Tools) will not contain any libelous,
defamatory, obscene or slanderous material, and is not materially false,
misleading or inaccurate, and will not contain any viruses, worms, time bombs,
cancelbots or other programming routines intended to damage, detrimentally
interfere with, surreptitiously intercept or expropriate any system, data, or
personal information.
9.2 Disclaimer. THE WARRANTIES PROVIDED HEREIN ARE THE ONLY WARRANTIES
PROVIDED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. SUCH WARRANTIES
ARE IN LIEU OF, AND THE PARTIES HEREBY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT
OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Each
party acknowledges that it has not entered into this Agreement in reliance upon
any warranty or representation except those specifically set forth herein.
10. INDEMNIFICATION
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10.1 IPIX will indemnify, defend and hold harmless eBay and eBay
affiliates operating any Additional Sites and their officers, directors,
successors and permitted assigns 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, relating to or in connection with any claim by a third party
regarding: (i) any Customer's use of the Services (other than Claims arising
solely from the unavailability of the eBay Site or an Additional Site due to
circumstances within eBay's or the applicable eBay affiliate's control and not
general problems with the infrastructure of the Internet or any eBay or
affiliate supplier); (ii) any infringement by the IPIX Technology, Help Tools,
IPIX Marks or IPIX Images, or by the Services of any third party's worldwide
patent, trademark, copyright, trade secret or other intellectual property right;
and (iii) any content provided by IPIX to eBay (including but not limited to
content contained in the Promotional Impressions and the Help Tools). Any Claim
arising with respect to any Image created and submitted by a Customer or a third
party on behalf of a Customer is expressly excluded from the foregoing
indemnification. If the Services, IPIX Technology, Help Tools, IPIX Marks or
IPIX Images are held to be infringing or their use is enjoined, or eBay believes
such a holding is likely, IPIX shall, at its option and expense, either (a)
procure for eBay the right to offer and use such Services, IPIX Technology, Help
Tools, IPIX Marks or IPIX Images; or (b) replace or modify such Services, IPIX
Technology, Help Tools, IPIX Marks or IPIX Images so that the substitute is
non-infringing and otherwise complies with the requirements of this Agreement.
10.2 eBay will indemnify, defend and hold harmless IPIX and its officers,
directors, successors and permitted assigns from and against any and all Claims
arising out of, relating to or in connection with any claim by a third party
that the eBay Templates, eBay Bulk Upload Tools or the eBay Marks infringe on
the worldwide patent, trademark, copyright, trade secret or other intellectual
property rights of such third party. Any Claim arising with respect to any Image
created and submitted by a Customer or a third party on behalf of a Customer is
expressly excluded from the foregoing indemnification.
10.3 The foregoing obligations are conditioned on (i) the indemnified
party notifying the indemnifying party promptly in writing of such action, (ii)
the indemnified party giving the indemnifying party the right to control the
defense and settlement of any such claim with counsel reasonably satisfactory to
the indemnified party (except that the indemnifying party shall not enter into
any settlement that affects the indemnified party's rights or interest without
the indemnified party's prior written approval), and (iii) the indemnified party
cooperating and, at indemnifying party's request and expense, assisting in such
defense.
11. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 10 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN
SECTION 8, 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. EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET
FORTH IN SECTION 10 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN
SECTION 8, NEITHER PARTY'S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT
SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY IPIX TO EBAY DURING THE
TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF EACH PARTY'S
LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES UNDER OR IN
CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE
LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
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12. CUSTOMER INFORMATION
12.1 Collection Limitations. Any information that IPIX obtains from a
Customer ("Customer-Provided Information", and together with Transferred
Information, "Customer Information") will be limited to information reasonably
related to the use of the Services under this Agreement or otherwise required to
use the Services.
12.2 Use Limitations. IPIX may use Customer Information to provide and
market the Services to Customers. IPIX will neither use itself nor permit any
third party to use Customer Information for any purpose other than to provide or
market the Services to Customers. Neither IPIX nor any third party will use
Customer Information to market any other products or services to Customers where
such product or service is then currently offered by eBay or a third party with
whom eBay has a contractual relationship that could include such product or
service.
12.3 Use Subject to Privacy Policy. IPIX further agrees to use such
Customer Information only as authorized by eBay's privacy policy, the Customer
and subject to IPIX's reasonable privacy policy, such privacy policy to be
adequately displayed throughout the IPIX website. IPIX will neither use Customer
Information to target communications to Customers (or facilitate the same on
behalf of third parties) without the express written permission from eBay and
opt-in agreement from the Customers, nor will IPIX solicit or facilitate such
solicitation by any third party of Customers as a result of their status as an
eBay user, and IPIX will explicitly not refer to Customers as "eBay users" or
"eBay members" (or any similar reference) in any promotion, except with the
prior written consent of eBay.
12.4 Certain Disclosures. IPIX agrees not to sell, rent, lease or
otherwise disclose Customer Information without eBay's prior written consent
(such consent to be in eBay's sole discretion). Notwithstanding the foregoing:
IPIX will provide eBay reasonable access to IPIX's database of Customers (and
related information) who have signed up with IPIX to use the Service through a
Site or eBay advertising.
13. GENERAL PROVISIONS
13.1 Real Estate. In the event eBay elects to pursue Listings for the real
estate market, IPIX will offer, at eBay's request, consulting, introductions to
strategic partners, technical advice, and additional support, utilizing IPIX's
extensive knowledge and relationships in the real estate industry.
13.2 Independent Contractors. The relationship of IPIX and eBay
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.
13.3 Press Plans. The parties will collaborate to release soon after the
Effective Date one mutually agreeable joint press release regarding the
relationship entered into hereunder. The parties shall agree to the content and
timing of such joint press release. Upon eBay's written approval, in its sole
and absolute discretion, the parties may also release a second mutually
agreeable joint press release upon the launch of the Services. Any other press
announcement by either party regarding the subject matter of this Agreement will
be subject to the other party's prior written approval in its sole and absolute
discretion.
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13.4 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.
13.5 Governing Law. This Agreement will be governed by and construed under
the laws of the State of California as applied to contracts entered into and
performed entirely within the State between residents thereof.
13.6 Notices. Any notice required or permitted by this Agreement will be
deemed given if sent by prepaid overnight courier, addressed to the other party
at the address set forth above or at such other address for which such party
gives notice hereunder. Delivery will be deemed effective 1 day after deposit
with such overnight courier. Notwithstanding the foregoing, any notice of
failure or breach IPIX is required to give pursuant to Exhibit A or Exhibit H
may be in the form of an email with confirmed receipt, and delivery will be
deemed effective immediately. Any such email will be supplemented by a
confirmation copy delivered by facsimile or overnight courier.
13.7 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, Internet infrastructure failure, hacker attack, 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.
13.8 Non-Assignability; Change of Control. Neither party may assign,
transfer or delegate any right or obligation hereunder to a third party without
the other party's written consent; provided, however, that either party may
assign, transfer or delegate any right or obligation hereunder in the event such
party experiences a Change of Control (as defined below). In the event IPIX
experiences a Change of Control in connection with an eBay Competitor (as
defined below), within ten (10) days following such Change of Control, IPIX
shall provide written notice to eBay of such Change of Control. In the event of
such Change of Control, eBay may, within ninety (90) days following such Change
of Control, terminate this Agreement upon written notice to IPIX. "Change of
Control" means any Ownership Change Event or a series of related Ownership
Change Events (collectively, the "Transaction") wherein a party's shareholders
immediately preceding the Transaction do not retain immediately after the
Transaction, in substantially the same proportions as their ownership of shares
of such party's voting stock or other voting interests immediately before the
Transaction, direct or indirect beneficial ownership of more than 50% of the
total combined voting power of the corporation or corporations to which
substantially all of such party's assets or stock were transferred, as the case
may be. An "Ownership Change Event" occurs if any of the following occur: (a)
the direct or indirect sale or exchange in a single series of related
transactions by such party's shareholders or other ownership interest holders of
more than 50% of its voting stock or other voting interests; (b) a merger or
consolidation in which such party is a party; (c) the sale, exchange or transfer
of all or substantially all of such party's assets; or (d) a liquidation or
dissolution of such party. However, an Ownership Change Event does not occur as
a result of any transaction or series of transactions that are effected solely
in connection with a (i) reincorporation, or (ii) a reorganization,
recapitalization or similar financing not in connection with the sale of all or
substantially all of such party's assets or stock or other ownership interests.
During the Term, upon written notice to IPIX, eBay shall have the right to
revise once during the first 30 days of each Deal Quarter the list of eBay
Competitors listed in Exhibit G to add entities which eBay reasonably believes
are or may become competitive with eBay (each an "eBay Competitor").
13.9 Customer Data. eBay will have no obligation to provide to IPIX
any Customer data under the Agreement.
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13.10 Technology Escrow. Within 30 days following the Effective Date, IPIX
shall deposit, and maintain during the Term, a copy of the current and complete
source code for the software components of the IPIX Technology (other than those
used to solely to provide the Virtual Tour Service) with a mutually acceptable
escrow agent. Such escrow arrangement will be governed by a standard escrow
agreement between such escrow agent and IPIX (the "Escrow Agreement"). IPIX
shall name eBay in the Escrow Agreement as a contingent beneficiary of a
restricted, non-transferable, non-exclusive, non-sublicenseable technology and
source code license set forth in the Escrow Agreement, provided eBay executes
such customary documentation applicable to contingent beneficiaries as the
Escrow Agent shall specify from time to time. The foregoing license would only
become effective if IPIX (a) no longer continues in the business of providing
the Services, (b) experiences a Bankruptcy Event (as defined below) or (c)
ceases to operate as a going business concern. The scope of such contingent
license would be limited to a reasonable number of copies required for eBay's
internal use for maintenance and operation purposes only, and eBay would be
required as a condition of such license to maintain and secure such copies on a
confidential basis in the same manner it treats its own similar information, but
in no case with less than reasonable care. The escrow arrangement will not apply
to any code or products IPIX licenses from third parties. If such third party
code is necessary for the operation of the Image Management Solution and the
Services, IPIX will use its best efforts to obtain, or assist eBay in obtaining,
the necessary licenses to use such third party code to operate the Image
Management Solution and the Services. A "Bankruptcy Event" means: (w) voluntary
or involuntary proceedings by or against a party are instituted in bankruptcy
under any insolvency law, which proceedings, if involuntary, shall not have been
dismissed within sixty (60) days after the date of filing; (x) a receiver or
custodian is appointed for such party; (y) 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 (z) substantially
all of the assets of such party are seized or attached and not released within
sixty (60) days thereafter.
13.11 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.
13.12 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.
13.13 Severability. In the event that it is determined by a court of
competent jurisdiction as part of a final 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.
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13.14 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 Visual Content
Services Agreement as of the day and year first above written.
INTERNET PICTURES CORPORATION eBAY INC.
By: /s/ Rudy Ruano By: /s/ Jeffrey Jordan
---------------------- --------------------------
Name: Rudy Ruano Name: Jeffrey Jordan
Title: Senior Vice President Title: Vice President
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* Indicates material has been omitted pursuant to a request for confidential
information
AMENDMENT NO. 1 TO THE
VISUAL CONTENT SERVICES AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment") to the VISUAL CONTENT SERVICES
AGREEMENT (the "Agreement") is effective as of January 1, 2001 (the "Amendment
Effective Date") by and between eBAY INC., a Delaware corporation with its
principal place of business at 2145 Hamilton Avenue, San Jose, California 95125
("eBay"), and INTERNET PICTURES CORPORATION, a Delaware corporation with its
principal place of business at 1009 Commerce Park Drive, Oak Ridge, Tennessee
37830 ("IPIX"). Capitalized terms not herein defined shall have the meanings
ascribed to them in the Agreement.
BACKGROUND
A. The parties entered into the Agreement, effective April 19, 2000.
B. The parties desire to amend the Agreement to change the payment
terms, promotional obligations, and technology escrow terms of the
Agreement.
C. All capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Agreement unless defined otherwise in this
Amendment.
AMENDMENT
1. SERVICES AND IMPLEMENTATION. Section 2.1(d) ("Services Pricing") of
the Agreement is amended to read as follows (insertions are indicated for
convenience):
2.1(D) SERVICES PRICING. During the Term, if IPIX furnishes a
palette of Image services substantially similar to the Services for
online listing and trading to any third party on pricing terms more
favorable than the pricing terms offered to eBay herein, eBay may
elect to incorporate such pricing terms offered by IPIX to such
third party into this Agreement in its sole discretion (provided
that Virtual Tour Services are excluded from such obligation).
Moreover, if IPIX's then-current effective national pricing for
Virtual Tour Services is more favorable than the pricing offered to
eBay Customers, the parties shall immediately modify the Agreement
to reflect such favorable pricing. The parties will mutually agree
on pricing for all Services other than Virtual Tour Services, and
will periodically review the then-current pricing for the Services.*
2. PROMOTIONAL IMPRESSIONS. Section 4.2 ("Promotional Impressions") of the
Agreement is hereby amended and restated in its entirety as follows:
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4.2 PROMOTIONAL IMPRESSIONS. *
3. EXCLUSIVITY.
A. Section 4.3(a)(iii) * of the Agreement is amended to read as follows
(insertions are indicated for convenience): *
B. Section 4.3(a)(ii) * of the Agreement is amended to read as follows
(insertions are indicated for convenience): *
C. SCOPE OF EXCLUSIVITY. Sections 4.3(a)(ii)(A) *, 4.3(a)(ii)(B) *,
4.3(a)(ii)(C) *, and 4.3(e) * of the Agreement are deleted in their entirety,
and neither party will have any obligations or restrictions under such sections.
4. PROMOTIONAL IMPRESSIONS. Section 5.1 * is hereby amended and
restated in its entirety as follows (insertions are indicated for
convenience): *
5. TECHNOLOGY ACCESS FEES.
A. CESSATION OF TECHNOLOGY ACCESS FEES. Section 5.2 * is hereby deleted in
its entirety, and neither party will have any obligations or restrictions under
such sections.
B. EXHIBIT E. Exhibit E ("Payment Schedule") of the Agreement is hereby
amended and restated in its entirety as follows. *
6. TECHNOLOGY ESCROW. Section 13.10 ("Technology Escrow") of the Agreement
is amended to read as follows:
13.10 TECHNOLOGY ESCROW.
(a) Within 30 days following the Effective Date, IPIX shall
deposit, and maintain during the Term, a copy of the current and
complete source code for the software components of the IPIX
Technology (other than those used to solely to provide the Virtual
Tour Service) (the "Source Code") with an escrow agent mutually
agreeable to the parties. Such escrow arrangement will be governed
by a standard escrow agreement between such escrow agent and IPIX
(the "Escrow Agreement"). IPIX shall name eBay in the Escrow
Agreement as a contingent beneficiary entitled to receive the
Source Code if IPIX: (i) no longer continues in the business of
providing the Services; provided, however that a Change of Control
of IPIX (as defined in Section 13.8, but excluding a Change of
Control Event occurring under Section 13.8(d)) shall not trigger a
release of the Source Code from escrow, (ii) experiences a
Bankruptcy Event (as defined below) or (iii) ceases to operate as a
going business concern,
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provided eBay executes such customary documentation applicable to
contingent beneficiaries as the Escrow Agent may specify from time
to time. The escrow arrangement will not apply to any code or
products IPIX licenses from third parties. If such third party code
is necessary for the operation of the Image Management Solution and
the Services, IPIX will use its best efforts to obtain, or assist
eBay in obtaining, the necessary licenses to use such third party
code to operate the Image Management Solution and the Services. A
"Bankruptcy Event" means: (w) voluntary or involuntary proceedings
by or against a party are instituted in bankruptcy under any
insolvency law, which proceedings, if involuntary, shall not have
been dismissed within sixty (60) days after the date of filing; (x)
a receiver or custodian is appointed for such party; (y)
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 (z)
substantially all of the assets of such party are seized or
attached and not released within sixty (60) days thereafter.
(b) IPIX hereby grants to eBay a worldwide, fully-paid, perpetual,
irrevocable license (with rights to sublicense such rights to third
parties to enable such parties to support eBay) to use, reproduce,
modify and otherwise exploit the Source Code, solely to support the
uses contemplated under the Agreement, where such present license
is exercisable upon the release of the Source Code under the Escrow
Agreement. eBay will (and will require any third party to which it
provides such Source Code to support the provision of the Services
to eBay) to maintain and secure such copies on a confidential basis
in the same manner it treats its own similar information, but in no
case with less than reasonable care."
7. GENERAL.
7.1 GOVERNING LAW; VENUE. This Amendment shall be construed in accordance
with and governed exclusively by the laws of the State of California applicable
to agreements made among California residents and to be performed wholly within
such jurisdiction, regardless of such parties' actual domiciles. Both parties
submit to personal jurisdiction in California and further agree that any cause
of action arising under this Amendment shall be brought exclusively in a court
in Santa Clara County, CA.
7.2 FULL FORCE AND EFFECT. Except as may be specifically amended by
this Amendment, the Agreement remains in full force and effect in accordance
with its terms.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
the Visual Content Services Agreement.
eBAY INC. ("eBAY") INTERNET PICTURES CORPORATION
("IPIX")
By: /s/ Jeff Jordan By: /s/ Howard Field
---------------------------------- --------------------------------
Name: Jeff Jordan Name: Howard Field
Title: Senior Vice President, eBay U.S. Title: Senior Vice President
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* Indicates material has been omitted pursuant to a request for confidential
information
AMENDMENT NO. 2 TO THE
VISUAL CONTENT SERVICES AGREEMENT
THIS AMENDMENT NO. 2 (the "Amendment") to the VISUAL CONTENT SERVICES
AGREEMENT is effective as of September 26, 2001 (the "Amendment Effective Date")
by and between eBAY INC., a Delaware corporation with its principal place of
business at 2145 Hamilton Avenue, San Jose, California 95125 ("eBAY"), and
INTERNET PICTURES CORPORATION, a Delaware corporation with its principal place
of business at 1009 Commerce Park Drive, Oak Ridge, Tennessee 37830 ("IPIX").
BACKGROUND
D. The parties entered into the Visual Content Services Agreement,
effective April 19, 2000 (the "Agreement").
E. The parties entered into Amendment No. 1 to the Visual Content Services
Agreement, effective January 1, 2001 (the "First Amendment") to adjust
certain rights and obligations.
F. The parties now desire to amend the Agreement to, among other things,
modify the licenses, payment terms, promotional obligations, and
technology escrow terms of the Agreement, as well as to make provisions
for the purchase and sale-leaseback of certain IPIX hardware to eBay.
G. All capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Agreement unless defined otherwise in this
Amendment.
AMENDMENT
1. IPIX TECHNOLOGY. Section 1.15 "IPIX Technology" is hereby amended and
restated in its entirety as follows:
1.15 "IPIX Technology" means any proprietary software, hardware, or other
technology used or necessary in the development, implementation, or
provision of Services to Customers (including but not limited to the
Image Management Solution and Plug-Ins), any updates thereto, and
all intellectual property rights (e.g., trademarks, trade secrets,
copyrights, patents, and patent applications) associated therewith.
2. ENHANCED SERVICES PAYMENTS. Effective October 1, 2001, Section 5.3 * is
hereby amended and restated in its entirety as follows: *
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3. EXHIBIT I. Effective October 1, 2001, Exhibit I as follows shall be
added to the Agreement: *
4. PROPRIETARY RIGHTS. Section 7.1 ("IPIX Technology; Help Tools; IPIX
Images") is hereby amended and restated in its entirety as follows
(changes are indicated for convenience):
7.1 IPIX Technology; Help Tools; IPIX Images. Except as modified by
Sections 7.1(c) and 7.1(d) below:
(a) All IPIX Technology, Help Tools and all IPIX Images are,
and at all times will remain, the exclusive property of IPIX, and no
provision of this Agreement implies any transfer to eBay of any ownership
interest in the IPIX Technology, Help Tools or the IPIX Images. The
licenses set forth in Sections 7.1(b) and 7.1(c) confer neither title to,
nor ownership in, the IPIX Technology, Help Tools or the IPIX Images and
are not a sale of any rights therein. eBay hereby irrevocably assigns to
IPIX all right, title and interest worldwide in and to any modifications
or derivative works of the IPIX Technology, Help Tools and IPIX Images
made by eBay ("eBay Modifications"), including without limitation any
copyrights, trade secrets, patent rights, moral rights, contract rights
and licensing rights.
(b) IPIX hereby grants to eBay a nonexclusive, fully-paid,
royalty-free, worldwide license to use, reproduce, display, digitally
perform and/or modify the IPIX Technology, Help Tools and IPIX Images
(including any eBay Modifications) solely as necessary to provide the
Services in accordance with the Agreement. eBay may sublicense or
distribute the IPIX Technology or any portion thereof (such as Plug-Ins),
Help Tools and IPIX Images to Customers, solely as necessary to make the
Services available to Customers on the Sites. In addition, IPIX hereby
grants to eBay a perpetual, irrevocable, nonexclusive, fully-paid,
royalty-free, worldwide foregoing license to use, reproduce, digitally
perform, display, modify and distribute for any purpose any derivative
works of Help Tools which eBay creates in the process for localizing such
Help Tools for use on international Sites.
(i) As reasonably requested by IPIX from time to time,
eBay agrees to include such ownership restrictions and other licensing
provisions regarding the IPIX Technology, IPIX Images and Help Tools in
relevant legends, disclaimers and license agreements presented to
Customers on the Sites in connection with the Services. eBay shall
reproduce all copyright notices in the original IPIX Technology, Help
Tools and IPIX Images and on all copies or modifications thereof where the
omission of such notices would jeopardize or impair IPIX's intellectual
property rights therein.
(ii) Any transfer, copying, distribution or other use of
the IPIX Technology, Help Tools and IPIX Images by eBay other than as
expressly provided herein constitutes a material breach of this Agreement.
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(iii) eBay will not disassemble or decompile the IPIX
Technology including single Java class files under any circumstances. The
disassembly or decryption by eBay of the foregoing constitutes a material
breach of this Agreement.
(iv) eBay will not export or re-export the IPIX
Technology or any copy or adaptation in violation of any applicable laws
or regulations.
(c) IPIX hereby grants eBay a perpetual, irrevocable,
nonexclusive, fully-paid, royalty-free, worldwide license to use,
reproduce, display, perform, modify, create derivative works of,
distribute copies, make, have made, import, use, and in any way exploit
the IPIX Technology to provide the Services (including, but not limited
to, IPIX hosting technology, server-based software (source code, object
code, and executable code), client-based software (source code, object
code, and executable code), and Plug-Ins), with the right to sublicense
such IPIX Technology to support the foregoing. The foregoing license is
granted presently and shall become exercisable only upon occurrence of a
Triggering Event (as defined below). Each of the following is a
"Triggering Event", and parties acknowledge and agree that the Triggering
Events are noncurable: *
5. EXHIBIT E. Effective October 1, 2001, Exhibit E shall be amended and
restated as follows: *
6. 6.3 TERMINATION FOR BREACH. Section 6.3 ("Termination for Breach") is
hereby amended by adding a new Section 6.3(b) as follows:
(b) An occurrence of any Triggering Event other than Cash
Failure (as specified in Section 13.10(b)(1)) shall constitute a material
breach of the Agreement, and eBay may terminate the Agreement after the
occurrence of any such Triggering Event upon written notice to IPIX. In
addition, in the event of the occurrence of a Triggering Event caused by
Cash Failure and the exercise by eBay of its rights under Section 7.1(c)
and payment under Section 7.1(d), then this Agreement shall terminate. The
obligations of each party to make any payments accrued and owing up to the
date of termination shall survive any such termination.
7. REPRESENTATIONS AND WARRANTIES. Section 9.1 ("Warranty") of the
Agreement is hereby amended and restated in its entirety as follows:
9.1 Warranty. IPIX hereby represents and warrants to eBay that: (i) any
content provided by IPIX to eBay (including but not limited to
content contained in the Help Tools) will not contain any libelous,
defamatory, obscene or slanderous material, and is not materially
false, misleading or inaccurate, and will not contain any viruses,
worms, time bombs, cancelbots or other programming routines intended
to damage, detrimentally interfere with, surreptitiously intercept
or expropriate any system, data, or personal information; (ii) IPIX
has the necessary right, power and authority to enter into this
Agreement, First Amendment, and this Amendment and to grant the
licenses contained herein; and (iii) IPIX's execution, delivery, and
performance of its obligations under this Amendment
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will not cause a breach or constitute an event of default under any
agreement to which IPIX is a party or by which IPIX is bound.
8. TRANSITION ASSISTANCE. In the event that IPIX experiences a Triggering
Event, IPIX will use commercially reasonable efforts to make available
individuals familiar with the IPIX Technology (e.g., developers,
operations, and quality assurance personnel), for hire by eBay to
assist eBay in providing the Services.
9. TECHNOLOGY ESCROW. Section 13.10(a) ("Technology Escrow") of the
Agreement is amended and restated to read as follows (changes are
indicated for convenience):
13.10 TECHNOLOGY ESCROW.
(a) Within 30 days following the Amendment Effective Date, IPIX
shall amend the May 30, 2000 Two-Party Escrow Agreement; such
amended escrow agreement shall be mutually agreeable to the parties
and shall contain terms satisfactory to eBay (including reformation
of Bankruptcy Events to conform to the Triggering Events and
streamlined dispute resolution and release procedures as set forth
in draft Amendment No. 1 to the Two-Party Escrow Agreement) (the
"Escrow Agreement"). Under such Escrow Agreement, IPIX shall
deposit, and maintain during the Term, a copy of the current and
complete source code, object code, and executable code for the
software components of the IPIX Technology as well as all associated
documentation. IPIX shall name eBay in the Escrow Agreement as a
contingent beneficiary entitled to receive the Code immediately upon
the following events: (i) if IPIX no longer continues in the
business of providing the Services; provided, however that a Change
of Control of IPIX (as defined in Section 13.8, but excluding a
Change of Control Event occurring under Section 13.8(d)) shall not
trigger a release of the Code from escrow, (ii) upon the occurrence
of a Triggering Event (as defined in Section 7.1(c) above) and eBay
exercises its rights under Section 7.1(c); or (iii) if IPIX ceases
to operate as a going business concern; provided eBay executes such
customary documentation applicable to contingent beneficiaries as
the Escrow Agent may specify from time to time. The escrow
arrangement will not apply to any code or products IPIX licenses
from third parties. If such third party code is necessary for the
operation of Services, IPIX will assist eBay in obtaining, the
necessary licenses to use such third party code to operate the
Services.
(b) An "Adverse Financial Event" means:
(1) *;
(2) IPIX (i) ceases to conduct its business in the ordinary
course, or (ii) commences any insolvency proceeding with respect
to itself, or (iii) takes any action to effectuate or authorize
any of the foregoing;
(3) voluntary or involuntary proceedings by or against IPIX are
instituted in bankruptcy under any insolvency law, which
proceedings, if
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involuntary, shall not have been dismissed within thirty (30)
days after the date of filing;
(4) a receiver or custodian is appointed to effectuate or
authorize any of the foregoing;
(5) 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 thirty (30) days after the date of filing;
or
(6) substantially all of the assets of such party are seized or
attached and not released within thirty (30) days after the date
of filing days thereafter.
10. 13.7 FORCE MAJEURE. Section 13.7 ("Force Majeure") of the Agreement is
amended and restated to read as follows (changes are indicated for
convenience):
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, Internet infrastructure failure, hacker attack, war,
rebellion, act of terrorism, 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 of the non-performing party.
11. BANKRUPTCY CODE. The parties acknowledge and agree that the Agreement
is a contract under which IPIX is a licensor of intellectual property
as provided in Section 365(n) of Title 11, United States Code (the
"Bankruptcy Code"). IPIX acknowledges that if IPIX, as a debtor in
possession or trustee in bankruptcy in a case under the Bankruptcy
Code, rejects this Agreement, eBay may elect to retain its rights under
this Agreement as provided in Section 365(n) of the Bankruptcy Code.
Upon written request of eBay to IPIX or the bankruptcy trustee, IPIX or
such bankruptcy trustee will not interfere with the rights of eBay as
provided in this Agreement.
12. NOTICE AND ADDITIONAL DOCUMENTS. *
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13. GENERAL.
13.1 GOVERNING LAW; VENUE. This Amendment shall be construed in
accordance with and governed exclusively by the laws of the State of
California applicable to agreements made among California residents
and to be performed wholly within such jurisdiction, regardless of
such parties' actual domiciles. Both parties submit to personal
jurisdiction in California and further agree that any cause of
action arising under this Amendment shall be brought exclusively in
a court in Santa Clara County, CA.
13.2 FULL FORCE AND EFFECT. Except as may be specifically amended by
this Amendment, the Agreement remains in full force and effect in
accordance with its terms.
13.3 CONFLICT. In the event of any conflict between the Visual Content
Services Agreement, the First Amendment, and this Amendment, the
terms set forth in this Amendment herein shall supersede any
conflicting term(s) set forth in the Visual Content Services
Agreement and the First Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to
the Visual Content Services Agreement.
eBAY INC. ("eBAY") INTERNET PICTURES CORPORATION
("IPIX")
By:/s/ Jeff Jordan By: /s/ Donald Strickland
------------------------------ ------------------------------
Name: Jeff Jordan Name: Donald Strickland
Title: Senior Vice President, eBay U.S. Title: Chief Executive Officer
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