Service Provider Agreement - Jutvision Corp. and TBI Imaging Inc.
SERVICE PROVIDER AGREEMENT
This Service Provider Agreement (the "Agreement") is made and entered into
this 23rd day of November, 1998, by and between JUTVISION CORPORATION, a
corporation under the laws of the Dominion of Canada ("Jutvision") located at
124 University Avenue, Suite 202, Palo Alto, CA 94301, and TBI IMAGING, INC., a
corporation incorporated under the laws of the State of Illinois ("TBI") located
at P.O. Box 278, Lincolnshire, IL 60069.
WHEREAS, Jutvision produces Virtual Tours for display on the World Wide Web
(the "Web");
WHEREAS, the production of Virtual Tours for the Web requires the capturing
of video content;
WHEREAS, Jutvision desires to retain the services of TBI as an independent
contractor to capture video content;
WHEREAS, TBI is an independent business and desires to provide such service
pursuant to the terms set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Definitions
-----------
1.1. "Basic Order" shall mean a request by Jutvision for TBI to capture
four (4) scenes at the site specified in the Order.
1.2. "Broker" shall mean any person working with, representing or
associated with the owner of the property in connection with a real estate
transaction.
1.3. "Dispatch System" shall mean the process of distributing Orders
directly to the JSPs via a text message to the cell phones of each JSP.
1.4. "Jutvision Service Provider" or "JSP" means the individual who
captures the video image of a property specified in the Order on behalf of TBI.
1.5. "Order" shall mean a request by Jutvision for TBI to perform the
Services with respect to a specific property. Each Order shall consist of the
name of the Ordering Party requesting the video image capture, that Ordering
Party's name and phone number and the address of the property to be video taped.
1.6. "Ordering Party" shall mean the person who places the Order with
Jutvision.
1
<PAGE>
1.7. "Seller" shall mean the owner, or someone acting on behalf of the
owner, of the property being serviced pursuant to this Agreement.
1.8. "Test Tape" shall mean the videotape submitted by a potential JSP
pursuant to the Training Manual.
1.9. "U.S. Address" shall mean Jutvision Corp., 124 University Ave., Palo
Alto, CA, 94301
1.10. "Training Manual" shall mean the materials attached to this Agreement
as Exhibit 1, including a training videotape prepared by Jutvision and any
---------
additions to those materials that Jutvision may make from time to time.
1.11. "Virtual Tour" shall mean a panoramic scene for display on the Web.
1.12. "Virtual Tour Business Activities" shall mean all aspects of
providing a full-service, production solution for the capture, processing and
posting of panoramic images on the Web created using the Jutvision Equipment
listed on Schedule D.
2. Independent Contractor Relationship
-----------------------------------
TBI is an independently established business and desires to contract with
Jutvision to perform services pursuant to this Agreement as an independent
contractor. TBI further agrees that neither TBI nor any employees or
subcontractors of TBI is entitled to unemployment, workers compensation or other
benefits in any event pursuant to TBI's provision of the Services.
3. Services Provided by TBI
------------------------
3.1. Jutvision engages TBI, and TBI shall cause its JSPs, to perform all
services and responsibilities set forth in Schedule A, as such schedule may be
----------
reasonably amended from time to time upon the mutual written agreement of the
parties, and elsewhere in this Agreement (the "Services"). TBI accepts such
engagement and agrees, during the term of this Agreement and thereafter, as
specified herein, to perform the Services in a professional and timely manner,
to furnish its best skill and judgment in performing the Services, to devote
sufficient time and resources to performing the Services, and to use best
efforts to comply with the project schedules established by Jutvision herein,
and from time to time. If TBI is unable to perform the Services, it shall notify
Jutvision of its inability to perform the Services as soon as it is aware of
that inability.
3.2. TBI shall cause each of its JSPs to sign and deliver to Jutvision a
Non-Disclosure Agreement in the form attached hereto as Exhibit 2.
---------
2
<PAGE>
3.3. The JSPs shall not perform any other services, other than the
Services or any other services agreed to by Jutvision and TBI, during the
performance of the Services, except Multiple Listing Service real estate
photographic services of exterior still images of real estate properties.
3.4. The JSPs shall not accept gratuities from the Seller, buyer, Broker
or any other individual requesting or involved in the transactions contemplated
in this Agreement.
3.5. From time to time, at the agreement of the parties, TBI shall
participate in, and cause its JSPs to participate in, marketing and promotional
programs with regard to the Services, Jutvision or Virtual Tours. Such
participation shall be of a nature which does not materially or significantly
add to the time or effort required of TBI or its JSPs in the performance of the
Services.
4. Term of Agreement
-----------------
4.1. This Agreement takes effect at 12:00 A.M. EST, Jan 4, 1999, and,
unless sooner terminated as provided herein, will continue in effect for a
period of two years ending at 11:59 P.M. EST, Jan 3, 2001. This Agreement may be
renewed for an additional term of two years at Jutvision's or TBI's option,
which option shall be exercised no later than 30 days prior to the date of the
termination of the initial term. This Agreement may be further extended by
mutual written agreement between Jutvision and TBI.
5. Fees
----
5.1. Jutvision agrees to pay the fees specified on Schedule B pursuant to
----------
the terms of this Agreement.
5.2. Schedule B shall not be changed, modified, supplemented or amended
----------
except by express written agreement signed by Jutvision and TBI.
6. Billing
-------
6.1. TBI shall produce and send an invoice to Jutvision on the 15th and
last day of each month detailing the Fees owing to TBI. Jutvision will pay TBI
for its services within thirty (30) days after the date of TBI's invoice.
6.2. Invoices unpaid by Jutvision shall be charged interest at the rate of
one and one-half percent (1.5%) per month, or eighteen percent (18%) per annum,
calculated daily, compounded annually.
6.3. In the event that Jutvision disputes the validity of an invoice or
part of an invoice rendered by TBI, Jutvision shall continue to pay any
undisputed amounts but shall not pay the amount in dispute. Jutvision shall not
incur any interest charges for the
3
<PAGE>
disputed amount(s) from the date Jutvision notifies TBI of Jutvision's
disagreement with TBI's invoice. In the event of a dispute, the parties shall
confer within ten (10) days for the purpose of resolving the dispute. If the
dispute cannot be resolved within ten (10) days from the date the parties
confer, either party may request arbitration pursuant to Section 16 of this
Agreement. To the extent the arbitration is resolved in favor of TBI, Jutvision
shall owe interest, pursuant to paragraph 6.2, on the amounts awarded to TBI
from the date ten (10) days after the parties met to confer.
7. Service Area
------------
7.1. TBI agrees to perform the Services in the geographical area(s) (the
"Service Area") specified in Schedule C, as may be amended from time to time by
----------
the parties.
7.2. From time to time, Jutvision may expand the Service Area to include
additional geographical areas. Upon notification by Jutvision, TBI shall take
all necessary action to provide the Services in the Service Area, as expanded,
including identifying to Jutvision an individual or individuals suitable to
perform the Services within one week of the time Jutvision notifies TBI of its
desire to expand the Service Area.
8. Equipment
---------
8.1. Jutvision shall provide, at Jutvision's cost, the equipment specified
on Schedule D (the "Jutvision Equipment") in quantities adequate for the
----------
performance of the Services by TBI. At all times Jutvision maintains ownership
of the Jutvision Equipment and can recall any or all of the Jutvision Equipment
at any time.
8.2. License Grant
-------------
8.2.1. Grant. Following Jutvision's provision of the Jutvision
-----
Equipment to TBI and its JSPs, and subject to all the terms and conditions of
this Agreement, Jutvision hereby grants to TBI and its JSPs a limited, royalty-
free, personal, non-transferable, non-exclusive, non-sublicensable license to
the Jutvision Equipment during the term of this Agreement solely for the use of
the Jutvision Equipment in connection with the provision of the Services, and
not for or on behalf of any third party.
8.2.2. No Sale. The parties acknowledge and agree that: (i) all
-------
Jutvision Equipment provided by Jutvision hereunder is licensed in accordance
herewith and not sold; and (ii) as between Jutvision and TBI and its JSPs,
subject only to the license grants expressly made herein, Jutvision is the sole
owner of all right, title and interest in and to the Jutvision Equipment,
including without limitation, all intellectual property and proprietary rights
therein and thereto.
4
<PAGE>
8.2.3. No Modification or Reverse Engineering. Except as otherwise
--------------------------------------
expressly permitted by applicable law, TBI and its JSPs shall not modify,
disassemble or in any way reverse engineer, the Jutvision Equipment or any
portion, derivative or version thereof or permit any third party to do so.
8.2.4. Termination. The license granted in this section shall
-----------
immediately terminate upon any expiration or termination of this Agreement.
8.3. Jutvision shall pay for all Equipment repair costs associated with
normal wear and tear. If any of the Jutvision Equipment needs repair, TBI or one
of its employees, agents, contractors or subcontractors shall be responsible for
sending or delivering, at Jutvision's cost, the non-functioning Jutvision
Equipment to Jutvision at its U.S Address. Upon receiving the non-functioning
Jutvision Equipment, Jutvision will send TBI, or the JSP identified by TBI as
needing the equipment, replacement Jutvision Equipment. The Training Manual
details an alternative procedure acceptable to Jutvision for the shipment of
Equipment.
8.4. TBI shall pay for all repair and delivery costs associated with the
repairs that do not result from normal wear and tear, including the repair of
damage caused by the negligence of TBI or one of its employees, agents,
contractors or subcontractors or any modification of the equipment by TBI or one
of its employees, agents, contractors or subcontractors. If any Jutvision
Equipment is lost, stolen or damaged while in the possession of TBI, its
employees, agents, contractors or subcontractors, TBI shall pay, within 30 days,
the replacement cost of such Jutvision Equipment to Jutvision. The cost of
replacement shall be the cost of purchasing replacement equipment as specified
on Schedule D. If TBI fails to pay for the lost, stolen or damaged equipment
----------
within 30 days, then Jutvision may deduct those costs from its next payments to
TBI.
8.5. WARRANTY DISCLAIMER
-------------------
THE JUTVISION EQUIPMENT AND ANY OTHER MATERIALS PROVIDED HEREUNDER TO TBI AND TO
ITS JSPS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. JUTVISION MAKES
NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO
THE JUTVISION EQUIPMENT OR ANY OTHER MATERIALS PROVIDED TO TBI OR TO ITS JSPS
UNDER THIS AGREEMENT. SPECIFICALLY, JUTVISION DOES NOT WARRANT THAT THE
JUTVISION EQUIPMENT WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED
MANNER. TO THE GREATEST EXTENT ALLOWED BY LAW, JUTVISION SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
(EVEN IF JUTVISION HAD BEEN INFORMED OF SUCH PURPOSE), AND NONINFRINGEMENT WITH
RESPECT TO THE JUTVISION EQUIPMENT AND ANY SUCH OTHER MATERIALS AND WITH RESPECT
TO THE USE OF ANY OF THE FOREGOING.
5
<PAGE>
9. Indemnification
---------------
9.1 TBI shall indemnify, and hold harmless Jutvision from any and all
damages, liabilities, costs and expenses (including reasonable attorneys' fees)
incurred by Jutvision arising from or relating to (i) TBI's use of the Jutvision
Equipment or any services provided by TBI hereunder and (ii) any breach by a JSP
of this Agreement. Jutvision shall promptly notify TBI in writing of any such
claim and promptly tender the control of the defense and settlement of any such
claim to TBI at TBI's expense and with TBI's choice of counsel. Jutvision shall
cooperate with TBI, at TBI's expense, in defending or settling such claim and
Jutvision may join in the defense with counsel of its choice at its own expense.
9.2 Jutvision shall indemnify, and hold harmless TBI from any and all
damages, liabilities, costs and expenses (including reasonable attorneys' fees)
incurred by TBI arising from or relating to Jutvision's action or omissions. TBI
shall promptly notify Jutvision in writing of any such claim and promptly tender
the control of the defense and settlement of any such claim to Jutvision at
Jutvision's expense and with Jutvision's choice of counsel. TBI shall cooperate
with Jutvision, at Jutvision's expense, in defending or settling such claim and
TBI may join in the defense with counsel of its choice at its own expense.
9.3 Jutvision requires each JSP to be bonded in the amount of at least
$2500. Upon the mutual agreement of the parties, the parties may alter the
amount and nature of the bond. Maintenance of such a bond shall in no way be
interpreted as relieving TBI or its JSPs of any responsibility under this
Agreement. Jutvision requires each potential JSPs to permit Jutvision to
perform, or cause to be performed, a background check on that individual before
the individual can begin to fulfill Orders.
10. Confidential Information
------------------------
10.1. Definition. The term "Confidential Information" shall mean any
----------
information disclosed by one party to this Agreement (the "Disclosing Party") to
the other party to this Agreement (the "Receiving Party") in connection with
this Agreement which, if in written, graphic, machine-readable or other tangible
form, is marked as "Confidential" or "Proprietary," or which, if disclosed
orally, is identified at the time of initial disclosure as confidential and such
identification is reduced to a writing delivered to the Receiving Party within
thirty (30) days of such oral disclosure. Without limiting the foregoing, the
terms and conditions of this Agreement shall be considered Confidential
Information.
10.2. Exclusions. Confidential Information shall exclude information that:
----------
(a) was independently developed by the Receiving Party without any use of the
Disclosing Party's Confidential Information or by the Receiving Party's
employees or other agents (or independent contractors hired by the Receiving
Party) who have not been exposed to the Disclosing Party's Confidential
Information; (b) becomes known to the Receiving Party, without restriction, from
a source other than the Disclosing Party without breach of
6
<PAGE>
this Agreement and that had a right to disclose it; (c) was in the public domain
at the time it was disclosed or becomes in the public domain through no act or
omission of the Receiving Party; or (d) was rightfully known to the Receiving
Party, without restriction, at the time of disclosure.
10.3. Compelled Disclosure. If a Receiving Party is, or believes that it
--------------------
will be, compelled by a court or other authority to disclose Confidential
Information of the Disclosing Party, it shall give the Disclosing Party prompt
notice so that the Disclosing Party may take steps to oppose such disclosure.
10.4. Obligations. The Receiving Party shall treat as confidential all of
-----------
the Disclosing Party's Confidential Information and shall not disclose such
Confidential Information to a third party except as expressly permitted under
this Agreement. Without limiting the foregoing, the Receiving Party shall use at
least the same degree of care which it uses to prevent the disclosure of its own
confidential information of like importance, but in no event less than
reasonable care, to prevent the disclosure of the Disclosing Party's
Confidential Information.
11. Non-Competition
---------------
In view of the fact that any activity of TBI in violation of the terms
hereof would adversely affect Jutvision and its subsidiaries, and to preserve
the goodwill associated with Jutvision's business, TBI hereby agrees to the
following restrictions on its activities:
11.1. TBI hereby agrees that during the term of this Agreement and during
the period commencing on the date this Agreement is terminated for any reason
and ending on the date which is the third anniversary of the date thereof (the
"Non-compete Period"), TBI will not, without the express written consent of
Jutvision, directly or indirectly, engage in any activity which is competitive
with any of the Virtual Tour Business Activities currently conducted or offered
by Jutvision, or its subsidiaries or affiliates, or currently proposed to be
conducted or offered by Jutvision, or its subsidiaries or affiliates, or such
by-product business, activities, products or services. For the purposes of this
Section 11.1, "by-product" business, activities, products or services shall
refer to those business, activities, products or services that are created, or
which the opportunity for is created, directly through the provision of Virtual
Tours for the Web. Notwithstanding the foregoing, TBI's provision of its still
photo imaging and MLS delivery services and the posting of those photographs to
the World Wide Web shall not contravene this Section 11.1.
11.2. In the event TBI determines to solicit bids from third parties for a
potential Acquisition of TBI (as defined below), or begin negotiations or
discussions of a potential Acquisition of TBI, upon such event, TBI shall notify
Jutvision and Jutvision shall have the exclusive right to negotiate such an
Acquisition with TBI for a period of thirty (30) days after the date of receipt
of such notice. In the event Jutvision and TBI are unable to come to an
agreement as to the Acquisition of TBI by Jutvision within such thirty (30) days
and after such period (i) TBI receives an acceptable offer for the Acquisition
of TBI,
7
<PAGE>
or (ii) TBI determines to solicit and receives an acceptable bid from a third
party for a potential Acquisition of TBI, TBI shall notify Jutvision upon
receipt of such offer or bid and Jutvision shall have the exclusive right of
first refusal to Acquire TBI pursuant to the provisions of such offer or bid.
11.3. For purposes of this Agreement, the "Acquisition" of a party shall
mean; (i) a merger, consolidation or other reorganization, if the individuals
and entities who were stockholders of the party immediately prior to the
effective date of the transaction have "beneficial ownership" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of less than
fifty percent (50%) of the total combined voting power for election of directors
(or their equivalent) of the surviving entity following the effective date of
the transaction; (ii) acquisition by any entity or group of direct or indirect
beneficial ownership in the aggregate of securities of the party then issued and
outstanding representing fifty percent (50%) or more of the total combined
voting power of the party; or (iii) a sale of all or substantially all of the
party's assets.
11.4. For purposes of this Agreement, any reference to the subsidiaries of
Jutvision shall be deemed to include all entities directly or indirectly
controlled by it through an ownership of more than fifty percent (50%) of the
voting interests. The term "affiliate" shall mean, with respect to any person or
entity, any person or entity that directly or indirectly controls, is controlled
by or is under common control with such person or entity. The term "person"
shall mean an individual, a corporation, an association, a partnership, a
limited liability company, an estate, a trust, and any other entity or
organization.
11.5. The Non-compete Period shall expire upon the bankruptcy or insolvency
of Jutvision or upon a breach by Jutvision of the terms of this Agreement.
12. Jutvision Exclusivity
---------------------
12.1. Jutvision shall use TBI exclusively within the Service Areas listed
in Schedule C for the provision of the Services. From time to time, upon the
----------
parties' written agreement, the parties may change, modify, supplement or amend
Schedule C.
----------
13. LIMITATION OF LIABILITY
-----------------------
13.1. IN NO EVENT WILL JUTVISION BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF
USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE JUTVISION EQUIPMENT OR ANY
OTHER MATERIALS PROVIDED BY JUTVISION HEREUNDER, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, AND EVEN IF JUTVISION HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, JUTVISION WILL NOT
BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OF THE
8
<PAGE>
JUTVISION EQUIPMENT OR ANY OTHER MATERIALS PROVIDED HEREUNDER. JUTVISION'S
LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION,
WILL NOT, IN ANY EVENT, EXCEED THE AMOUNTS PAID BY JUTVISION TO TBI UNDER THIS
AGREEMENT FOR THE SERVICES GIVING RISE TO SUCH CLAIM.
13.2. The provisions of this Section allocate risks under this Agreement
between TBI and Jutvision. Jutvision's pricing reflects this allocation of risks
and limitation of liability.
14. Trademark License
-----------------
14.1 License. Jutvision hereby grants TBI a limited, royalty-free,
-------
personal, non-transferable, nonsublicensable, non-exclusive license to use the
Jutvision logos, any other images, its trade names and trademarks (collectively,
the "Jutvision Logos"), and such other images and materials for which Jutvision
grants its prior written consent, solely for the purpose of identifying
Jutvision in TBI's promotional materials. TBI shall submit to Jutvision all
representations of the Jutvision Logos that TBI intends to use in connection
with the TBI promotional materials, for Jutvision's approval of design, color,
and other details. TBI shall not publish, disseminate, exhibit, or otherwise
distribute any such material without Jutvision's prior approval. TBI's use of
the Jutvision Logos shall at all times be of a high quality, commensurate with
Jutvision's own products and marketing. TBI shall not harm, misuse or bring into
disrepute the Jutvision Logos. Jutvision reserves all of its rights in the
Jutvision Logos, any other images, its trade names and trademarks, and all other
intellectual property or proprietary rights. TBI acknowledges that the Jutvision
Logos and the goodwill associated therewith are valuable properties belonging to
Jutvision and that all rights thereto are and shall remain the sole and
exclusive property of Jutvision. TBI agrees to use the Jutvision Logos in a
manner that will protect Jutvision's rights and goodwill therein. TBI agrees
that it will do nothing inconsistent with Jutvision's ownership and that all
uses of the same shall inure to the sole benefit of and be on behalf of
Jutvision.
14.2. Effect of Termination. Upon the expiration or termination of this
---------------------
Agreement for any reason, TBI shall immediately stop all activities hereunder,
cease using the Jutvision logo and not thereafter use the Jutvision logo for any
reason.
15. Termination
-----------
15.1. Either party may terminate this Agreement upon thirty (30) days
written notice in the event of a Default by the other party, provided that the
defaulting party has been given notice by the non-defaulting party of the
default and has failed to correct such default within thirty (30) days after
receipt of such notice. Default shall be defined as a material failure to
fulfill or perform duties or responsibilities as such are set forth in this
Agreement, including but not limited to a failure to perform the Services in the
manner
9
<PAGE>
described in Schedule A, a 5% failure rate over a sixty (60) day period at
capturing usable images (requiring refilming), a failure to follow the Training
Manual, fraud, misrepresentation, bankruptcy, insolvency or court ordered
liquidation of all or substantially all of the party's assets for the benefit of
creditors.
15.2 Effect of Termination. Upon the expiration or termination of this
---------------------
Agreement for any reason, TBI shall (i) immediately stop all activities
hereunder, cease using the Jutvision logo and not thereafter use the Jutvision
logo for any reason, and (ii) promptly return all materials and Equipment to
Jutvision.
16. Arbitration
-----------
Any dispute, controversy or claim arising out of or relating to the
validity, construction, enforceability or performance of this Agreement,
including disputes relating to alleged breach or to termination of this
Agreement, shall be settled by final, binding arbitration in the manner
described in this Section. The arbitration shall be conducted pursuant to the
Commercial Rules of the American Arbitration Association then in effect
("Rules"). Notwithstanding those rules, the following provisions shall apply to
the arbitration hereunder:
16.1. Arbitrators. A panel of three (3) arbitrators ("the Panel") shall
-----------
conduct the arbitration. Each party shall have the right to appoint one (1)
member of the Panel, with the third member to be mutually agreed by the two (2)
Panel members appointed by the parties or appointed in accordance with the rules
of the American Arbitration Association.
16.2. Proceedings. The parties and the arbitrators shall use their best
-----------
efforts to complete the arbitration within three (3) months after the
appointment of the Panel under Section 16.1 above, unless a party can
demonstrate to the Panel that the complexity of the issues or other reasons
warrant the extension of the time table. In such case, the Panel may extend such
timetable as reasonably required. The Panel shall, in rendering its decision,
apply the substantive law of the State of California, without regard to its
conflict of laws provisions, except that the interpretation of and enforcement
of this Section 16.2 shall be governed by the U.S. Federal Arbitration Act. The
proceeding shall take place in the city and county of Palo Alto, California. The
losing party which party shall be designated by the Panel shall pay the fees of
the Panel. If the Panel is unable to designate a losing party, it shall so state
and the fees shall be shared equally between the parties.
17. Assignment
----------
Neither party hereto shall assign or delegate this Agreement, or any of its
rights or duties hereunder, directly, indirectly, by operation of law, or
otherwise, without the prior written consent of the other party.
10
<PAGE>
18. Miscellaneous Provisions
------------------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of California. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will be
considered one and the same Agreement. This Agreement supersedes all prior
agreements, written or oral, between Jutvision and TBI relating to the subject
matter of this Agreement. Any amendment or modification of this Agreement shall
be in writing and shall be signed by both parties hereto. TBI acknowledges that
the Confidential Information represents valuable property and agrees that the
provisions of this Agreement shall be enforceable by specific performance and
other equitable relief in addition to any action for damages or other remedy
available to Jutvision. If any provision of this Agreement is for any reason
held to any extent to be invalid or unenforceable, the remainder of this
Agreement will not be affected and will be interpreted so as reasonably to
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
TBI Imaging, Inc.
By: /s/ Thomas Beverly
_________________________________
Name: Thomas Beverly
Title: President
Jutvision Corporation
By: /s/ L. B. McCurdy
_________________________________
Name: L. B. McCurdy
Title: President
Date: 12/1/98
11
<PAGE>
Schedule A
----------
SERVICES PROVIDED BY TBI
A. Services Provided.
1. TBI and its JSPs must successfully complete all Orders transmitted to TBI
or its JSPs by Jutvision.
2. TBI must be able to receive digitally transmitted Orders provided by
Jutvision.
3. TBI agrees to use the Dispatch System, or other dispatch system approved by
Jutvision prior to adoption that allows TBI to perform the Services.
4. A JSP must contact the Ordering Party specified in the Order within two (2)
hours of the time TBI received the Order, unless the Order is received after
4:30 P.M. local time, in which case the JSP must contact the person specified in
the Order by 10:00 A.M. local time the following day. If the Ordering Party is
not available at the time that the JSP receiving the Order calls to schedule the
content capture appointment, the JSP must leave the scripted message specified
in the Training Manual. In the event that the ordering party does not return the
JSP's scheduling call within 24 hours, the JSP shall repeat the above call
procedure.
5. TBI must provide to Jutvision by 10:00 A.M. local time a complete list
including the time and date of each appointment scheduled by its JSPs the prior
day and the Federal Express tracking number for each video taped shipped the
prior day. If a JSP is unable to schedule an appointment the day the JSP
receives the Order, TBI must indicate on the list that the JSP has not yet
scheduled the appointment.
6. The JSP must be available to perform the content capture within 48 hours
from the time the JSP contacted the Ordering Party.
7. If the JSP fails to meet the timing requirements specified in paragraphs 4
and 6 for an Order, Jutvision will not compensate TBI for the fulfillment of
that Order. Nonetheless, TBI and its JSPs are obligated to fulfill the Order as
expeditiously as possible.
8. If, for any reason, the JSP is unable to meet the Ordering Party at the
scheduled appointment time, the JSP must notify the Ordering Party at least one
(1) hour prior to the scheduled appointment and reschedule the appointment at a
mutually convenient time within the next 24 hours. If the JSP fails to notify
the Ordering Party one (1) hour prior to missing a scheduled appointment, JSP
shall contact the Ordering Party within one (1) hour after the originally
scheduled time and reschedule the appointment at a mutually convenient time
within the next 24 hours. TBI shall notify Jutvision of the time and date of the
new appointment in the same manner as specified in paragraph 4 above. Jutvision
12
<PAGE>
will not compensate TBI for the Services performed for the Ordering Party when a
JSP has missed an appointment without contacting the Ordering Party at least one
(1) hour prior to the scheduled appointment time in order to reschedule the
appointment.
9. The JSP must capture the video content pursuant to the Training Manual. An
Order is not successfully completed, if in Jutvision's discretion, the video
images captured pursuant to that Order cannot be converted into a Virtual Tour
for posting on the Web. If for any reason, the JSP does not successfully
complete the Order, TBI shall be responsible for refilming the site at its
expense upon Jutvision's request pursuant to the procedures set forth in this
Schedule for the fulfillment of an initial Order.
10. At Jutvision's request, TBI must allow and the JSPs must distribute
Jutvision marketing materials to the Broker, Seller or potential buyer as part
of the normal course of fulfilling an Order; such efforts shall not increase
materially or substantially the time and effort required of TBI or its JSPs to
perform the Services. Neither TBI nor any of its JSPs, or any agent, employee,
representative, affiliate, subsidiary or any other entity controlled or owned by
TBI, may distribute any materials, other than those requested by Jutvision or
mutually agreed to by the parties, to Buyer, Seller and/or Broker, except as
otherwise agreed to by Jutvision in writing, during the term of this Agreement.
11. All video tape(s) from a day of filming with video content ready for
processing, along with accompanying paperwork, as such shall be specified in the
Training Manual, must be sent, at Jutvision's expense, to the U.S. Address for
delivery before 3 P.M. PST on the day the JSP films the content. Jutvision shall
provide each JSP with a sufficient number of pre-paid, pre-addressed Federal
Express envelopes for the purpose of shipping each days tape to Jutvision at the
U.S. Address. Each JSP must write the tracking number for the Federal Express
package on the JSP Daily Activity Log, to be provided by Jutvision at the time
of training.
12. If Jutvision, in its discretion, is unable to process a videotape because
the accompanying paperwork is improperly completed pursuant to the Training
Manual, TBI shall be responsible for refilming the property at its expense or
for providing Jutvision with the information it needs to process the content on
the video tape in a timely manner.
13. TBI shall be responsible for the timely distribution of all of videotapes
to the JSPs upon receipt of the tapes from Jutvision. TBI shall identify a
single location or a reasonable number of locations in the United States to
which Jutvision will ship such replacement tapes.
14. Jutvision shall have the right to interview every potential JSP identified
by TBI before the JSP begins fulfilling Orders and shall have the right in its
discretion to require TBI to identify another individual. TBI shall be
responsible for training each JSP pursuant to the Training Manual.
15. Once Jutvision notifies TBI that a potential JSP's Test Tape is acceptable,
that individual may begin fulfilling Orders. If Jutvision determines that that
individual's Test
13
<PAGE>
Tape is not acceptable, Jutvision shall notify TBI of the reason that the Tape
is not acceptable and that individual may submit a second Test Tape for
Jutvision's review.
16. TBI and all JSPs must follow all procedures specified in the Training
Manual. TBI shall allow and TBI and the JSPs agree to participate in and
complete all training mandated by Jutvision.
Initials: /s/ Leonard B. McCurdy
______________________ Jutvision.
/s/ Thomas Beverly
______________________ TBI
14
<PAGE>
Schedule B
----------
FEES AND BILLING
A. Fees
1. Jutvision agrees to pay TBI thirty dollars ($30) for each Basic Order
successfully completed as specified in Schedule A.
2. Jutvision agrees to pay TBI five dollars ($5) for each scene in excess
of four (4) captured at the site specified in the Order.
B. Cancellation Policy
If an Order is canceled on the day the JSP and the Ordering Party had
scheduled to perform the Services, Jutvision shall pay TBI fifteen dollars
($15). If the Ordering Party does not show-up for his or her appointment and the
JSP is unable to perform the Services, Jutvision shall pay TBI thirty dollars
($30). If the JSP films the property and then the Order is canceled, Jutvision
shall pay TBI thirty dollars ($30).
D. Minimum Order Commitments
The following provision applies to the Service Areas listed on Schedule C
as of the date of this contract:
In the event that, three (3) months after Jutvision first provides an Order
to TBI in a Service Area, TBI receives less than ten (10) Orders per week in
that Service Area during any week of the fourth, fifth or sixth month, Jutvision
agrees to pay TBI thirty-five ($35) dollars for each Basic Order successfully
completed in that Service Area during those weeks in which TBI received less
than ten (10) Orders.
In the event that, six (6) months after Jutvision first provides an Order
to TBI in a Service Area, TBI receives less than fifteen (15) Orders per week in
that Service Area during any week of the seventh, eighth, ninth, tenth, eleventh
or twelfth month, Jutvision agrees to pay TBI forty dollars ($40) for each Basic
Order successfully completed in that Service Area during those weeks in which
TBI received less than fifteen (15) Orders.
In the event that, one (1) year after Jutvision first provides Orders to
TBI in a Service Area, TBI receives less than an average of probable 3% Volume
figures listed on Schedule C per week over one month period in a particular
Service Area, the Non-Compete provisions in 11.1 shall no longer apply to TBI
for that particular Service Area.
Initials: /s/ Leonard B. McCurdy
______________________ Jutvision.
/s/ Thomas Beverly
____________________ TBI
15
<PAGE>
Schedule C
----------
SERVICE AREAS
(Minimum 3% of Weekly Listing Volume)
<TABLE>
<CAPTION>
Area Territory Probable 3% Volume
---- ---------- -------------------
<S> <C> <C>
Metropolitan Boston 30 Mile Radius 20 Houses Per Week
Long Island Brooklyn, Queens, Long Island 45 Houses Per Week
Metropolitan Philadelphia Bucks, Montgomery, 45 Houses Per Week
Chester and Philadelphia, and
Delaware Counties in Pennsylvania
City of Wilmington, Delaware
Metropolitan Miami Palm Beach, Broward 75 Houses Per Week
and Dade Counties
Metropolitan Cleveland Cleveland,Akron, Canton, 45 Houses Per Week
and Youngstown
Metropolitan Dallas/ "Metroplex" 60 Houses Per Week
Ft. Worth
Metropolitan Chicago Lake, Cook and 150 Houses Per Week
DuPage Counties
Metropolitan Detroit Wayne, Oakland and 40 Houses Per Week
McComb Counties
Metropolitan Minneapolis/ 20 Mile Radius 25 Houses Per Week
St. Paul
Metropolitan Pittsburgh 20 Mile Radius 20 Houses Per Week
Northern California Contra Costa, Alameda; 50 Houses Per Week
Lower half of Napa, Sonoma
and Solano Counties, and Marin Co.
Metropolitan Denver 25 Mile Radius 50 Houses Per Week
</TABLE>
/s/ Thomas Beverly
/s/ Leonard B. McCurdy
16
<PAGE>
<TABLE>
<S> <C> <C>
Los Angeles Jurisdictions of Central Los 50 Houses Per Week
Angeles West M.L.S., South Bay
M.L.S., So. Cal M.L.S.
</TABLE>
Other Metropolitan Areas for future TBI set-up.
<TABLE>
<S> <C> <C>
Louisville 15 Mile Radius 10 Houses Per Week
Tucson 15 Mile Radius 10 Houses Per Week
Birmingham 15 Mile Radius 10 Houses Per Week
Fairfield 20 Mile Radius 20 Houses Per Week
Orlando 20 Mile Radius 35 Houses Per Week
Lansing 15 Mile Radius 10 Houses Per Week
Naples 15 Mile Radius 10 Houses Per Week
Charlotte 20 Mile Radius 20 Houses Per Week
</TABLE>
Potential future sites for TBI.
Memphis, Tennessee
Austin, Texas Portland, Oregon
Milwaukee, Wisconsin Roanoke, Virginia
Initials: /s/ Leonard B. McCurdy Jutvision.
_______________________
/s/ Thomas Beverly
_______________________ TBI
17
<PAGE>
Schedule D
----------
EQUIPMENT PROVIDED BY JUTVISION
The "Equipment" shall consist of:
1. Jutvision Field Kit consisting of one (1) Jutvision Roundabout (TM), one
(1) video camera with light and necessary accessories, including the necessary
power source, one (1) tripod, two (2) video tapes, one (1) wide angle lens, one
(1) video camera battery recharger, and a carrying case. The JSPs shall provide
the batteries for the Jutvision Roundabout (TM) and shall be responsible for the
ongoing maintenance of the video camera, including, but not limited to, the
replacement of the rechargeable batteries for the camera.
2. Virtual Reality Listing Forms to be completed by JSP for each Order
pursuant to the Training Manual.
3. Cellular phone and accessories for Dispatch System.
4. Materials necessary for daily shipment of video tapes to the U.S. Address.
Initials: /s/ Leonard B. McCurdy Jutvision.
_______________________
/s/ Thomas Beverly
_______________________ TBI
18
<PAGE>
Schedule E
----------
COST OF REPLACEMENT EQUIPMENT
1. Sony Camcorder $900.00
2. Camcorder Battery $ 75.00
3. Camcorder Light $ 60.00
4. Camcorder Battery Recharger $ 50.00
5. Carrying Case $ 80.00
6. Tripod $ 90.00
7. Tripod Head $ 60.00
8. Video Tape $ 8.00
9. Jutvision Roundabout $350.00
10. Lens $ 40.00
11. Cell Phone $100.00
Initials: /s/ Leonard B. McCurdy Jutvision.
_______________________
/s/ Thomas Beverly
_______________________ TBI
19
<PAGE>
Exhibit 2
---------
NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT ("Agreement") is made and entered into as of
_____________ (date) between Jutvision Corporation and ______________
(JSP/Jutvision Service Provider).
1. Purpose. The parties desire the JSP to perform certain services as
-------
further described in the Service Provider Agreement between Jutvision and TBI,
dated _____________, and in connection with this opportunity, Jutvision
("Disclosing Party") may disclose to JSP ("Receiving Party" or "Jutvision
Service Provider") certain confidential technical and business information which
the Disclosing Party desires the Receiving Party to treat as confidential.
2. "Confidential Information" means any information disclosed by the
------------------------
Disclosing Party to the Receiving Party, either directly or indirectly, in
writing, orally or by inspection of tangible objects (including without
limitation documents, prototypes, samples, plant and equipment), which is
designated as "Confidential," "Proprietary" or some similar designation.
Confidential Information will include without limitation all information
regarding Jutvision's image capturing technique, its proprietary technology and
equipment, whether or not so designated upon disclosure. Information
communicated orally will be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. Confidential Information may also
include information disclosed to a Disclosing Party by third parties.
Confidential Information will not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the Disclosing Party; (ii) becomes publicly known and
made generally available after disclosure by the Disclosing Party to the
Receiving Party through no action or inaction of the Receiving Party; (iii) is
already in the possession of the Receiving Party at the time of disclosure by
the Disclosing Party as shown by the Receiving Party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the Receiving
Party from a third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the Receiving Party without
use of or reference to the Disclosing Party's Confidential Information, as shown
by documents and other competent evidence in the Receiving Party's possession;
or (vi) is required by law to be disclosed by the Receiving Party, provided that
the Receiving Party gives the Disclosing Party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
3. Non-use and Non-disclosure. The Receiving Party agrees not to use any
--------------------------
Confidential Information of the Disclosing Party for any purpose except to
perform the services described in the Service Provider Agreement. The Receiving
Party agrees not to disclose any Confidential Information of the Disclosing
Party to third parties. The
20
<PAGE>
Receiving Party shall not reverse engineer, disassemble or decompile any
prototypes, software or other tangible objects which embody the Disclosing
Party's Confidential Information and which are provided to the Receiving Party
hereunder.
4. Maintenance of Confidentiality. The Receiving Party shall take
------------------------------
reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information of the Disclosing Party.
Without limiting the foregoing, the Receiving Party shall take at least those
measures that it takes to protect its own most highly confidential information.
The Receiving Party shall not make copies of the Confidential Information of the
Disclosing Party unless the Disclosing Party previously approves the same in
writing. The Receiving Party shall reproduce the Disclosing Party's proprietary
rights notices on any such approved copies, in the same manner in which such
notices were set forth in or on the original.
5. No Obligation. Nothing herein will obligate the Disclosing Party to
-------------
disclose any of its Confidential Information to the Receiving Party, nor will
either party be in any way obligated to enter into a separate agreement with the
other party, perform services for the other party, or purchase services from the
other party.
6. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". THE
-----------
DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING
ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
7. Return of Materials. All documents and other tangible objects
-------------------
containing or representing Confidential Information which have been disclosed by
the Disclosing Party to the Receiving Party, and all copies thereof which are in
the possession of the Receiving Party, will remain the property of the
Disclosing Party and must be promptly returned to the Disclosing Party upon the
Disclosing Party's written request.
8. No License. Nothing in this Agreement is intended to grant any rights
----------
to either party under any patent, mask work right or copyright of the other
party, nor will this Agreement grant the Receiving Party any rights in or to the
Confidential Information of the Disclosing Party except as expressly set forth
herein.
9. Term. The obligations of the Receiving Party hereunder will survive
----
until such time as all Confidential Information of the Disclosing Party
disclosed hereunder becomes publicly known and made generally available through
no action or inaction of the Receiving Party.
10. Remedies. Each party agrees that any violation or threatened
--------
violation of this Agreement may cause irreparable injury to the Disclosing
Party, entitling the Disclosing Party to seek injunctive relief in addition to
all legal remedies.
11. Miscellaneous. This Agreement will bind and inure to the benefit of
-------------
the parties hereto and their successors and assigns. This Agreement will be
governed by the
21
<PAGE>
laws of the State of California, without reference to conflict of laws
principles. This document contains the entire agreement between the parties with
respect to the subject matter hereof, and neither party will have any
obligation, express or implied by law, with respect to trade secret or
proprietary information of the other party except as set forth herein. Any
failure to enforce any provision of this Agreement will not constitute a waiver
thereof or of any other provision. This Agreement may not be amended, nor any
obligation waived, except by a writing signed by both parties hereto.
__________________________________ __________________________________
JUTVISION JUTVISION SERVICE PROVIDER
By: ______________________________ By: ______________________________
Name: ____________________________ Name: ____________________________
Title: ___________________________ Title: ___________________________
22
<PAGE>
SERVICE PROVIDER AGREEMENT
This Service Provider Agreement (the "Agreement") is made and entered into
this __ day of __________, 199_, by and between JUTVISION CORPORATION, a
Delaware corporation ("Jutvision"), 124 University Avenue, Palo Alto,
California, 94301 and ________________, _______________________ ("Provider").
WHEREAS, Jutvision produces Virtual Tours for the World Wide Web ("Web");
WHEREAS, the production of Virtual Tours for the Web requires the capturing
of video images;
WHEREAS, Jutvision desires to retain the services of Provider as an
independent contractor to capture video content;
WHEREAS, Provider is an independent business and desires to provide such
service pursuant to the terms set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
-----------
1.1 "Basic Order" shall mean a request by Jutvision for Provider to film
four (4) scenes at the site specified in the Order.
1.2 "Broker" shall mean any person working with, representing or
associated with the homeowner or home seller in connection with a
real estate transaction.
1.3 "Dispatch System" shall mean the process of distributing Orders
directly to the JSPs via a text message to the cell phones of each
JSP.
1.4 "Jutvision Service Provider" or "JSP" means the individual who
captures the video image of the property specified in the Order on
behalf of Provider.
1.5 "Order" shall mean a request by Jutvision for Provider to perform
the Services with respect to a specific property. Each Order shall
consist of the name of the Ordering Party requesting the video
image capture, that Ordering Party's phone number and the address
of the property to be videotaped.
1.6 "Ordering Party" shall mean the person who places the Order with
Jutvision.
23
<PAGE>
1.7 "Seller" shall mean the owner, or someone acting on behalf of the
owner, of the property being serviced pursuant to this Agreement.
1.8 "Test Tape" shall mean the videotape submitted by a potential JSP
pursuant to the Training Manual.
1.9 "US Address" shall mean Jutvision Corp., 124 University Avenue,
Palo Alto, California, 94301.
1.10 "Training Manual" shall mean the materials attached hereto as
Exhibit 1, a training videotape prepared by Jutvision, and
---------
any additions to those materials that Jutvision may make from time
to time.
1.11 "Virtual Tour" shall mean a panoramic scene for display on the
Web.
2. INDEPENDENT CONTRACTOR RELATIONSHIP
-----------------------------------
Provider is an independently established business and desires to contract
with Jutvision to perform services pursuant to this Agreement as an
independent contractor. Provider further agrees that neither Provider nor
any employees or subcontractors of Provider is entitled to unemployment,
workers compensation or other benefits in any event pursuant to Provider's
provision of service under this Agreement.
3. SERVICES PROVIDED BY Provider
-----------------------------
3.1 Jutvision engages Provider, and Provider shall cause its JSPs, to
perform all services and responsibilities set forth in this
Agreement (the "Services"), including those set forth in Schedule
--------
A. These Services may be reasonably amended upon the mutual consent
--
of the parties at anytime. Provider accepts such engagement and
agrees, during the term of this Agreement and thereafter, as
specified herein, to perform the services and responsibilities set
forth herein in a professional and timely manner, to furnish its
best skill and judgment in performing the Services, to devote
sufficient time and resources to performing the Services, and to
use best efforts to perform the Services. If Provider is unable to
perform the Services, it shall notify Jutvision of its inability to
perform the Services as soon as it is aware of that inability.
3.2 Provider shall cause each of its JSPs to sign and deliver to
Jutvision the non-disclosure agreement attached hereto as Exhibit
-------
2.
--
3.3 The JSPs shall not perform any other services, other than the
Services or any other services agreed to by Jutvision and Provider,
during the provision of the Services.
24
<PAGE>
3.4 The JSPs shall not accept gratuities from the Seller, Broker or any
other individual requesting or involved in the transactions
contemplated in this Agreement.
3.5 From time to time, at the agreement of the parties, Provider shall
participate in marketing and promotional programs with regard to
the Services, Jutvision or Virtual Tours. Such participation shall
be of a nature that does not materially or significantly add to the
time or effort required of Provider or its JSPs to perform the
Services.
4. TERM OF AGREEMENT RENEWAL
-------------------------
This Agreement takes effect at 12:00 A.M. EST, January 11, 1999, and,
unless sooner terminated as provided herein, will continue in effect for a
period of two years ending at 11:59 P.M. EST, January 10, 2001. This
Agreement may be renewed for an additional term of two years at Jutvision's
option, which option shall be exercised no later than thirty (30) days
prior to the date of the termination of the initial term. This Agreement
may be further extended by mutual written agreement between Jutvision and
Provider.
5. FEES
----
5.1 Jutvision agrees to pay the fees specified on Schedule B pursuant
----------
to the terms of this Agreement.
5.2 Schedule B shall not be changed, modified, supplemented or amended
----------
except by express written agreement signed by Jutvision and
Provider.
6. BILLING
-------
6.1 Provider shall produce and send an invoice to Jutvision on the 15th
and last day of each month detailing the Fees owing to Provider
Jutvision will pay Provider for its services by means of electronic
transfer to Provider's bank account. Jutvision will make its best
efforts to make those payments within ten (10) business days after
receiving Provider' invoice.
6.2 Invoices unpaid by Jutvision thirty (30) days after receipt of an
invoice from Provider shall be charged interest at the rate of one
and one-half percent (1.5%) per month, or eighteen percent (18%)
per annum, calculated daily, compounded annually.
6.3 Jutvision shall inform Provider of any disputes regarding an
invoice within ten (10) business days of receipt of that invoice.
In the event that Jutvision disputes the validity of an invoice or
part of an invoice rendered by Provider, Jutvision shall continue
to pay any undisputed amounts but shall not pay the amount in
dispute. Jutvision shall not incur any interest charges
25
<PAGE>
for the disputed amount from the date Jutvision notified Provider
of its disagreement with Provider's invoice. In the event of a
dispute, the parties shall confer within ten (10) business days for
the purpose of resolving the dispute. If the dispute cannot be
resolved within ten (10) business days of the first conference,
either party may request arbitration, which shall be subject to the
terms of Section 15.
7. SERVICE AREA
------------
7.1 Provider agrees to perform the Services in the geographical areas
(the "Service Areas") identified in Schedule C.
----------
7.2 Provider will be the exclusive provider of Services within the
Service Areas listed in Schedule C and defined in the Service Area
----------
Agreement. From time to time, upon the parties' written agreement,
the parties may change, modify, supplement or amend Schedule C.
----------
7.3 From time to time, Jutvision may expand the Service Areas to
include additional geographical areas. Upon notification by
Jutvision, Provider shall take all necessary actions to provide the
Services in a Service Area, including identifying an individual or
individuals suitable to perform the Services within one week of the
time Jutvision notifies Provider of its desire to expand a Service
Area.
8. EQUIPMENT
---------
8.1 Jutvision shall provide, at Jutvision's cost, the equipment
specified in Schedule D (the "Equipment") in quantities adequate
for the performance of the Services by Provider. At all times
Jutvision maintains ownership of the Equipment and can recall any
or all of the Equipment at any time.
8.2 License Grant.
-------------
8.2.1 Grant. Following Jutvision's provision of the Equipment
------
to Provider and its JSPs, and subject to all the terms
and conditions of this Agreement, Jutvision hereby grants
to Provider and its JSPs a limited, royalty-free,
personal, non-transferable, non-sublicensable, non-
exclusive license to the Equipment during the term of
this Agreement. The Equipment shall be used only in
connection with the Services hereunder, and not for or on
behalf of any third party.
8.2.2 No Sale. The parties acknowledge and agree that (i) all
--------
Equipment provided by Jutvision hereunder is licensed in
accordance herewith and not sold and (ii) as between
Jutvision and Provider and its JSPs, subject only to the
license grants expressly made herein, Jutvision is the
sole owner of all right, title and interest in and to
26
<PAGE>
the Equipment, including without limitation all
intellectual property and proprietary rights therein and
thereto.
8.2.3 No Modification or Reverse Engineering. Except as
---------------------------------------
otherwise expressly permitted by applicable law, Provider
and its JSPs shall not modify, disassemble or in any way
reverse engineer, the Equipment or any portion,
derivative or version thereof or permit any third party
to do so.
8.2.4 Termination. The license granted in this section shall
------------
immediately terminate upon any expiration or termination
of this Agreement.
8.3 The Equipment shall be functional when received by Provider. If the
Equipment is not functioning when initially received, Provider
shall immediately notify Jutvision and within 24 hours send or
deliver, at Jutvision's cost, the Equipment to Jutvision's U.S.
Address.
8.4 Jutvision shall pay for all Equipment repair costs associated with
normal wear and tear. If any of the Equipment needs repair,
Provider or one of its employees, agents, contractors or
subcontractors shall be responsible for sending or delivering, at
Jutvision's cost (except as specified in Section 8.5), the non-
functioning Equipment to Jutvision at its U.S Address. Upon
receiving the non-functioning Equipment, Jutvision will send
Provider, or the JSP identified by Provider as needing the
Equipment, replacement Equipment. The Training Manual details an
alternative procedure acceptable to Jutvision for the shipment of
Equipment.
8.5 Provider shall pay for all repair costs not associated with normal
wear and tear, including the repair of damage caused by the
negligence of Provider or one of its employees, agents, contractors
or subcontractors or any modification of the equipment by Provider
or one of its employees, agents, contractors or subcontractors.
Provider or one of its employees, agents, contractors or
subcontractors shall be responsible for immediately sending or
delivering, at Provider's expense, the negligently damaged to
Jutvision at its U.S. Address.
8.6 If any Equipment is lost, stolen, or damaged while in the
possession of Provider, its employees, agents, contractors or
subcontractors, Provider shall pay, within 30 days, the repair or
replacement cost of such Equipment to Jutvision. The cost of
replacement shall be the cost of purchasing replacement equipment
as specified in Schedule E. The cost of repair will not exceed the
-----------
cost of purchasing replacement equipment as specified in Schedule
--------
E. If Provider fails to pay for the lost, stolen or damaged
--
equipment within 30 days, then Jutvision may deduct those costs
from its next payment to Provider.
27
<PAGE>
8.7 Warranty Disclaimer.
--- -------------------
THE EQUIPMENT AND ANY OTHER MATERIALS PROVIDED HEREUNDER TO
PROVIDER AND TO ITS JSPS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY
OF ANY KIND. JUTVISION MAKES NO WARRANTIES, WHETHER EXPRESS,
IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE EQUIPMENT OR ANY
OTHER MATERIALS PROVIDED TO PROVIDER OR TO ITS JSPS UNDER THIS
AGREEMENT. SPECIFICALLY, JUTVISION DOES NOT WARRANT THAT THE
EQUIPMENT WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED
MANNER. TO THE GREATEST EXTENT ALLOWED BY LAW, JUTVISION
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE (EVEN IF JUTVISION HAD BEEN
INFORMED OF SUCH PURPOSE), AND NONINFRINGEMENT WITH RESPECT TO THE
EQUIPMENT AND ANY SUCH OTHER MATERIALS AND WITH RESPECT TO THE USE
OF ANY OF THE FOREGOING.
9. INDEMNIFICATION
---------------
9.1 Provider shall indemnify, and hold harmless Jutvision from any and
all damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Jutvision arising from or relating to
Provider's use of the Equipment or any services provided by
Provider hereunder. Jutvision shall promptly notify Provider in
writing of any such claim and promptly tender the control of the
defense and settlement of any such claim to Provider at Provider's
expense and with Provider's choice of counsel. Jutvision shall
cooperate with Provider, at Provider's expense, in defending or
settling such claim and Jutvision may join in the defense with
counsel of its choice at its own expense.
9.2 Jutvision shall indemnify, and hold harmless Provider from any and
all damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Provider arising from or relating to
Jutvision's trademark, copyright, patents, or business practices
related to Jutvision's trademark, copyright, or patents. Provider
shall promptly notify Jutvision in writing of any such claim and
promptly tender the control of the defense and settlement of any
such claim to Jutvision at Jutvision's expense and with Jutvision's
choice of counsel. Provider shall cooperate with Jutvision, at
Jutvision's expense, in defending or settling such a claim and
Provider may join in the defense with counsel of its choice at its
own expense.
9.3 Throughout the term of this Agreement, Provider, for its employees
who perform the Services, shall procure and maintain, at its sole
cost and expense: (a) adequate levels of Workers Compensation and
Employer's
28
<PAGE>
Liability insurance in accordance with applicable State Law; (b)
comprehensive general liability insurance for claims for damages
due to bodily injury (including death) and property damage caused
by or arising out of acts or omissions of its employees; and (c)
sufficient contractual liability insurance to cover the liabilities
assumed by Provider under this Agreement. In addition, all of
Provider JSPs, whether employees or independent contractors of
Provider, shall provide to Jutvision proof of bonding. For purposes
of the foregoing, "bond" shall refer to an Individual Fidelity Bond
for $2,500. Maintenance of such insurance shall in no way be
interpreted as relieving Provider of any responsibility under this
Agreement.
10. CONFIDENTIAL INFORMATION
------------------------
10.1 Definition. The term "Confidential Information" shall mean any
-----------
information disclosed by one party (the "Disclosing Party") to
this Agreement to the other (the "Receiving Party") of this
Agreement in connection with this Agreement which, if in written,
graphic, machine-readable or other tangible form is marked as
"Confidential" or "Proprietary," or which, if disclosed orally, is
identified at the time of initial disclosure as confidential and
such identification is reduced to a writing delivered to the
Receiving Party within thirty (30) days of such oral disclosure.
Without limiting the foregoing, the terms and conditions of this
Agreement shall be considered Confidential Information.
10.2 Exclusions. Confidential Information shall exclude information
-----------
that: (a) was independently developed by the Receiving Party
without any use of the Disclosing Party's Confidential Information
or by the Receiving Party's employees or other agents (or
independent contractors hired by the Receiving Party) who have not
been exposed to the Disclosing Party's Confidential Information;
(b) becomes known to the Receiving Party, without restriction,
from a source other than the Disclosing Party without breach of
this Agreement and that had a right to disclose it; (c) was in the
public domain at the time it was disclosed or becomes in the
public domain through no act or omission of the Receiving Party;
or (d) was rightfully known to the Receiving Party, without
restriction, at the time of disclosure.
10.3 Compelled Disclosure. If a Receiving Party is, or believes that it
---------------------
will be, compelled by a court or other authority to disclose
Confidential Information of the Disclosing Party, it shall give
the Disclosing Party prompt notice so that the Disclosing Party
may take steps to oppose such disclosure.
10.4 Obligations. The Receiving Party shall treat as confidential all
of the Disclosing Party's Confidential Information and shall not
use or disclose such Confidential Information to a third party
except as expressly permitted under this Agreement. Without
limiting the foregoing, the Receiving Party shall use at least the
same degree of care which it uses to prevent the
29
<PAGE>
disclosure of its own confidential information of like importance,
but in no event less than reasonable care, to prevent the
disclosure of the Disclosing Party's Confidential Information.
11. NON-COMPETITION
---------------
11.1 In view of the fact that any activity of Provider in violation of
the terms hereof would adversely affect Jutvision and its
subsidiaries, and to preserve the goodwill associated with
Jutvision's business, Provider hereby agrees to the following
restrictions on its activities:
11.1.1 Provider hereby agrees that during the term of this
Agreement and during the period commencing on the date
this Agreement is terminated for any reason and ending
on the date which is the third anniversary of the date
thereof (the "Noncompete Period") Provider will not,
without the express written consent of Jutvision,
directly or indirectly, engage in any activity that is
competitive with any of the business activities,
products or services conducted or offered by Jutvision
and its subsidiaries and affiliates or proposed to be
conducted or offered by Jutvision and its subsidiaries
and affiliates.
11.1.2 In the event (i) Provider receives and considers any
offer for an Acquisition (as defined below) of Provider,
or (ii) Provider determines to solicit bids from third
parties for a potential Acquisition, Provider shall
notify Jutvision, and Jutvision shall have the exclusive
right to negotiate such an Acquisition with Provider for
a period of thirty (30) days after the date of receipt
of such notice.
11.1.3 For purposes of this Agreement, the "Acquisition" of a
party shall mean (i) a merger, consolidation or other
reorganization, if the individuals and entities who were
stockholders of the party immediately prior to the
effective date of the transaction have "beneficial
ownership" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of less
than sixty percent (60%) of the total combined voting
power for election of directors (or their equivalent) of
the surviving entity following the effective date of the
transaction, (ii) acquisition by any entity or group of
direct or indirect beneficial ownership in the aggregate
of securities of the party then issued and outstanding
representing forty percent (40%) or more of the total
combined voting power of the party, or (iii) a sale of
all or substantially all of the party's
30
<PAGE>
assets.
11.1.4 For purposes of this Agreement, any reference to the
subsidiaries of Jutvision shall be deemed to include all
entities directly or indirectly controlled by it through
an ownership of more than fifty percent (50%) of the
voting interests. The term "affiliate" shall mean, with
respect to any person or entity, any person or entity
which directly or indirectly controls, is controlled by
or is under common control with such person or entity.
The term "person" shall mean an individual, a
corporation, an association, a partnership, a limited
liability company, an estate, a trust, and any other
entity or organization.
12. LIMITATION OF LIABILITY
-----------------------
IN NO EVENT WILL JUTVISION BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE,
BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE EQUIPMENT OR ANY OTHER
MATERIALS PROVIDED BY JUTVISION HEREUNDER, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, AND EVEN IF JUTVISION HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, JUTVISION WILL NOT
BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OF THE EQUIPMENT OR ANY
OTHER MATERIALS PROVIDED HEREUNDER. JUTVISION'S LIABILITY UNDER THIS AGREEMENT
FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE
AMOUNTS PAID BY JUTVISION TO Provider UNDER THIS AGREEMENT FOR THE SERVICES
GIVING RISE TO SUCH CLAIM.
The provisions of this Section allocate risks under this Agreement between
Provider and Jutvision. Jutvision's pricing reflects this allocation of risks
and limitation of liability.
13. TRADEMARK LICENSE
-----------------
13.1 License. Jutvision hereby grants Provider a limited, royalty-free,
-------
personal, non-transferable, nonsublicensable, non-exclusive license
to use the Jutvision logos, any other images, its trade names and
trademarks (collectively, the "Jutvision Logos"), and such other
images and materials for which Jutvision grants its prior written
consent, solely for the purpose of identifying Jutvision in
Provider's promotional materials. Provider shall submit to Jutvision
all representations of the Jutvision logo that Provider intends to
use in connection with the Provider promotional materials, for
31
<PAGE>
Jutvision's approval of design, color, and other details. Provider
shall not publish, disseminate, exhibit, or otherwise distribute any
such material without Jutvision's prior approval. Provider' use of
the Jutvision Logos shall at all times be of a high quality,
commensurate with Jutvision's own products and marketing. Provider
shall not harm, misuse or bring into disrepute the Jutvision Logo.
Jutvision reserves all of its rights in the Jutvision Logos, any
other images, its trade names and trademarks, and all other
intellectual property or proprietary rights. Provider acknowledges
that the Jutvision Logos and the goodwill associated therewith are
valuable properties belonging to Jutvision and that all rights
thereto are and shall remain the sole and exclusive property of
Jutvision. Provider agrees to use the Jutvision Logos in a manner
that will protect Jutvision's rights and goodwill therein. Provider
agrees that it will do nothing inconsistent with Jutvision's
ownership and that all uses of the same shall inure to the sole
benefit of and be on behalf of Jutvision.
13.2 Effect of Termination. Upon the expiration or termination of this
---------------------
Agreement for any reason, Provider shall immediately stop all
activities hereunder, cease using the Jutvision logo and not
thereafter use the Jutvision logo for any reason.
14. TERMINATION
-----------
Either party may terminate this Agreement upon thirty (30) days written
notice in the event of a default by the other party, provided that the
defaulting party has been given notice by the non-defaulting party of the
default and has failed to correct such default within thirty (30) days
after receipt of such notice. Default shall be defined as a material
failure to fulfill or perform duties or responsibilities as such are set
forth in this Agreement, including but not limited to a failure to perform
the Service in the manner described in this Agreement (including Schedule
------------------
A), a 5% failure rate at capturing usable images (i.e. images requiring
--
reshooting), a failure to follow the Training Manual, fraud,
misrepresentation, non-payment, bankruptcy, insolvency or court-ordered
liquidation of all substantially all of the party's assets for the benefits
of creditors.
15. ARBITRATION
-----------
Any dispute, controversy or claim arising out of or relating to the
validity, construction, enforceability or performance of this Agreement,
including disputes relating to alleged breach or to termination of this
Agreement, shall be settled by final, binding arbitration in the manner
described in this Section. The arbitration shall be conducted pursuant to
the Commercial Rules of the American Arbitration Association then in effect
("Rules"). Notwithstanding those rules, the following provisions shall
apply to the arbitration hereunder:
15.1 Arbitrators. The arbitration shall be conducted by a panel of three
-----------
(3) arbitrators ("the Panel"). Each party shall have the right to
appoint one (1)
32
<PAGE>
member of the Panel, with the third member to be mutually agreed by
the two (2) Panel members appointed by the parties or appointed in
accordance with the rules of the American Arbitration Association.
15.2 Proceedings. The parties and the arbitrators shall use their best
-----------
efforts to complete the arbitration within one (1) year after the
appointment of the Panel under Section 15.1 above, unless a party can
demonstrate to the Panel that the complexity of the issues or other
reasons warrant the extension of the timetable. In such case, the
Panel may extend such timetable as reasonably required. The Panel
shall, in rendering its decision, apply the substantive law of the
State of California, without regard to its conflict of laws
provisions, except that the interpretation of and enforcement of
Section 15.2 shall be governed by the U.S. Federal Arbitration Act.
The proceeding shall take place in the city and county of San
Francisco. The fees of the Panel and all reasonable attorney's fees
shall be paid by the losing party as designated by the Panel. If the
Panel is unable to designate a losing party, it shall so state and
the fees shall be shared equally between the parties.
16. ASSIGNMENT
----------
Provider shall not assign or delegate this Agreement, or any of its rights
otherwise, without the prior written consent of Jutvision.
17. MISCELLANEOUS PROVISIONS
------------------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of California. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of
which will be considered one and the same Agreement. This Agreement
supersedes all prior agreements, written or oral, between Jutvision and
Provider relating to the subject matter of this Agreement. Any amendment
or modification of this Agreement shall be in writing and shall be signed
by both parties hereto. Provider acknowledges that the Confidential
Information represents valuable property and agrees that the provisions of
this Agreement shall be enforceable by specific performance and other
equitable relief in addition to any action for damages or other remedy
available to Jutvision. If any provision of this Agreement is for any
reason held to any extent to be invalid or unenforceable, the remainder of
this Agreement will not be affected and will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of the void or
unenforceable provision.
33
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
Provider
By:_________________________________
Name:
Title:
Jutvision Corporation
By:_________________________________
Name:
Title:
34
<PAGE>
Schedule A
----------
SERVICES PROVIDED BY Provider
1. Provider and its JSPs must successfully complete all Orders transmitted to
Provider or its JSPs by Jutvision.
2. Provider and its JSPs must be able to receive digitally transmitted Orders
provided by Jutvision.
3. Provider agrees to use the Dispatch System, or other dispatch system
approved by Jutvision that allows Provider to perform the Services.
4. A JSP must contact the Ordering Party specified in the Order within two (2)
hours from the time Provider or the JSP received the Order, unless the Order
is received after 4:30 P.M. local time, in which case the JSP must contact
the person specified in the Order by 10:00 A.M. local time the following
day. If the Ordering Party is not available at the time that the JSP
receiving the Order calls to schedule the content capture appointment, the
JSP must leave the scripted message specified in the Training Manual. In the
event that the Ordering Party does not return the JSP's scheduling call
within 24 hours, the JSP shall repeat the above call procedure.
5. Provider must provide to Jutvision by 10:00 A.M. local time each day a
complete list of the appointments scheduled by its JSPs the prior day,
including the time and date of each appointment. If a JSP is unable to
schedule an appointment the day the JSP receives the Order, Provider must
indicate on the list that the JSP has not yet scheduled the appointment.
6. The JSP must be available to perform the content capture within 48 hours
from the time the JSP contacted the Ordering Party.
7. If the JSP fails to meet the timing requirements specified in paragraphs 4
and 6 for an Order, Jutvision will not compensate Provider for the
fulfillment of that Order. Nonetheless, Provider is obligated to fulfill the
Order as expeditiously as possible.
8. If, for any reason, the JSP is unable to meet the Ordering Party at the
scheduled appointment time, the JSP must notify the Ordering Party at least
two (2) hours prior to the scheduled appointment and reschedule the
appointment at a mutually convenient time within the next 24 hours. If the
JSP fails to notify the Ordering Party two (2) hours prior to missing a
scheduled appointment, JSP shall contact the Ordering Party within one (1)
hour after the originally scheduled time and reschedule the appointment at a
mutually convenient time within the next 24 hours. Provider shall notify
Jutvision of the time and date of the new appointment in the same manner as
specified in paragraph 5 above. Jutvision will not compensate Provider for
the Services performed for the Ordering Party when a JSP has missed an
appointment
35
<PAGE>
without contacting the Ordering Party at least two (2) hours prior to the
scheduled appointment time in order to reschedule the appointment.
9. The JSP must capture the video content pursuant to the Training Manual. An
Order is not successfully completed, if in Jutvision's discretion, the video
images captured pursuant to that Order cannot be converted into a Virtual
Tour for posting on the Web. Jutvision must inform Provider within 5
business days from when the image was captured that the image can not be
successfully converted. If for any reason, the JSP does not successfully
complete the Order, Provider shall be responsible for refilming the site at
its expense upon Jutvision's request pursuant to the procedures set forth in
this Schedule for the fulfillment of an initial Order.
10. At Jutvision's request, Provider must allow and the JSPs must distribute
Jutvision marketing materials to the Broker, Seller or potential buyers as
part of the normal course of fulfilling an Order. Such efforts shall not
increase materially or significantly the time or effort required of Provider
or its JSPs to perform the Services. Neither Provider nor any of its JSPs,
or any agent, employee, representative, affiliate, subsidiary or any other
entity controlled or owned by Provider, may distribute any materials, other
than those requested by Jutvision or mutually agreed to by the parties, to
the Broker, Seller or potential buyers, except as otherwise agreed to by
Jutvision in writing, during the term of this Agreement. This provision
should not be read to limit Provider's pre-existing business relationships
with any party.
11. All video tape(s) from a day of filming with video content ready for
processing, along with accompanying paperwork, as such shall be specified in
the Training Manual, must be sent, at Jutvision's expense, to the U.S.
Address for delivery before 3 P.M. PST on the day after the JSP films the
content. Jutvision shall provide each JSP with a sufficient number of pre-
paid, pre-addressed Federal Express envelopes to be used for the sole
purpose of shipping each days tape to Jutvision at the U.S. Address. Each
JSP must write the tracking number for the Federal Express package on the
JSP Daily Activity Log, which will be provided by Jutvision at the time of
training.
12. If Jutvision, in its discretion, is unable to process the videotape because
the accompanying paperwork is not completed pursuant to the Training Manual,
Provider shall be responsible for reimaging the property at its expense or
for providing Jutvision with the information it needs to process the images
on the video tape in a timely manner.
13. Provider shall be responsible for the timely distribution of all of
videotapes to its JSPs upon receipt of the tapes from Jutvision. Provider
shall identify one location or a reasonable number of strategic locations to
which Jutvision will ship such replacement tapes.
14. Jutvision shall have the right to interview every potential JSP identified
by Provider before the JSP begins fulfilling Orders and shall have the right
in its discretion to
36
<PAGE>
require Provider to identify another individual. Provider, with Jutvision's
assistance, shall be responsible for training each JSP pursuant to the
Training Manual.
15. Once Jutvision notifies Provider that a potential JSP's Test Tape is
acceptable, that individual may begin fulfilling Orders. If Jutvision
determines that that individual's Test Tape is not acceptable, Jutvision
shall notify Provider of the reason that Test Tape is not acceptable and
that individual may submit a second Test Tape for Jutvision's review.
16. Provider and all JSPs must follow all procedures specified in the Training
Manual. Provider and the JSPs agree to participate in and complete all
training mandated by Jutvision.
Initials: ________ Jutvision
_________ Provider
37
<PAGE>
Schedule B
----------
FEES AND BILLING
A. Fees
---------
1. Jutvision agrees to pay Provider ____________ for each Basic Order
successfully completed as specified in Schedule A.
----------
2. Jutvision agrees to pay Provider _______________ for each scene in excess of
four (4) captured at the site specified in the Order.
B. Cancellation Policy
-------------------
1. If an Order is cancelled on the day the JSP and the Ordering Party had
scheduled to perform the Services, Jutvision shall pay Provider _________.
If the Ordering Party does not show-up for his or her appointment and the
JSP is unable to perform the Services, Jutvision shall pay Provider
___________. If the JSP films the property and then the Order is cancelled,
Jutvision shall pay Provider ______________.
Initials: ________ Jutvision
_________ Provider
38
<PAGE>
Schedule C
----------
SERVICE AREAS
The following zip codes, as modified by the comments, serve as the outer
boundary of the "Service Area":
Initials: ________ Jutvision
_________ Provider
39
<PAGE>
Schedule D
----------
EQUIPMENT PROVIDED BY JUTVISION
The "Equipment" shall consist of:
1. Jutvision Field Kit consisting of one (1) Jutvision Roundabout (TM), one (1)
video camera with light and necessary accessories, including the necessary
power source, one (1) tripod, two (2) video tapes, one (1) wide angle lens,
one (1) video camera battery recharger and a carrying case. The JSPs shall
provide the batteries for the Jutvision Roundabout (TM) and shall be
responsible for the ongoing maintenance of the video camera, including, but
not limited to, the replacement of the rechargeable batteries for the
camera.
2. Virtual Reality Requisition Forms to be completed by JSP for each Order
pursuant to the Training Manual.
3. Cellular phone and accessories for Dispatch System. Jutvision will maintain
all cellular phone contracts and service agreements and will pay for all
cellular phone charges incurred by Provider' JSPs during the course of
fulfilling Orders.
4. Materials necessary for daily shipment of video tapes to the U.S. Address.
5. Training manuals that include instructions on the maintenance of the camera,
battery, and cellular phone.
Initials: ________ Jutvision
_________ Provider
40
<PAGE>
Schedule E
----------
COST OF REPLACEMENT EQUIPMENT
<TABLE>
<CAPTION>
Description Unit Cost
--------------------------------- ---------
<S> <C>
1. Sony Camcorder $900.00
2. Camcorder Battery $ 75.00
3. Camcorder Battery Recharger $ 50.00
4. Camcorder Light $ 60.00
5. Carrying Case $ 80.00
6. Lens $ 40.00
7. Tripod $ 90.00
8. Tripod Head $ 60.00
9. Video Tape $ 8.00
10. Jutvision Roundabout $350.00
11. Cell Phone $100.00
</TABLE>
Initials: ________ Jutvision
_________ Provider
41
<PAGE>
Exhibit 2
NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT ("Agreement") is made and entered into as of
_____________ (date) between Jutvision Corporation and ______________
(JSP/Jutvision Service Provider).
1. Purpose. The parties desire the JSP to perform certain services as
-------
further described in the Service Provider Agreement between Jutvision and
Provider, dated _____________, and in connection with this opportunity,
Jutvision ("Disclosing Party") may disclose to JSP ("Receiving Party" or
"Jutvision Service Provider") certain confidential technical and business
information which the Disclosing Party desires the Receiving Party to treat as
confidential.
2. "Confidential Information" means any information disclosed by the
------------------------
Disclosing Party to the Receiving Party, either directly or indirectly, in
writing, orally or by inspection of tangible objects (including without
limitation documents, prototypes, samples, plant and equipment), which is
designated as "Confidential," "Proprietary" or some similar designation.
Confidential Information will include without limitation all information
regarding Jutvision's image capturing technique, its proprietary technology and
equipment, whether or not so designated upon disclosure. Information
communicated orally will be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within a
reasonable time after the initial disclosure. Confidential Information may also
include information disclosed to a Disclosing Party by third parties.
Confidential Information will not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the Disclosing Party; (ii) becomes publicly known and
made generally available after disclosure by the Disclosing Party to the
Receiving Party through no action or inaction of the Receiving Party; (iii) is
already in the possession of the Receiving Party at the time of disclosure by
the Disclosing Party as shown by the Receiving Party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the Receiving
Party from a third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the Receiving Party without
use of or reference to the Disclosing Party's Confidential Information, as shown
by documents and other competent evidence in the Receiving Party's possession;
or (vi) is required by law to be disclosed by the Receiving Party, provided that
the Receiving Party gives the Disclosing Party prompt written notice of such
requirement prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure.
3. Non-use and Non-disclosure. The Receiving Party agrees not to use any
--------------------------
Confidential Information of the Disclosing Party for any purpose except to
perform the services described in the Service Provider Agreement. The Receiving
Party agrees not to disclose any Confidential Information of the Disclosing
Party to third parties. The
42
<PAGE>
Receiving Party shall not reverse engineer, disassemble or decompile any
prototypes, software or other tangible objects which embody the Disclosing
Party's Confidential Information and which are provided to the Receiving Party
hereunder.
4. Maintenance of Confidentiality. The Receiving Party shall take reasonable
------------------------------
measures to protect the secrecy of and avoid disclosure and unauthorized use of
the Confidential Information of the Disclosing Party. Without limiting the
foregoing, the Receiving Party shall take at least those measures that it takes
to protect its own most highly confidential information. The Receiving Party
shall not make copies of the Confidential Information of the Disclosing Party
unless the same are previously approved in writing by the Disclosing Party. The
Receiving Party shall reproduce the Disclosing Party's proprietary rights
notices on any such approved copies, in the same manner in which such notices
were set forth in or on the original.
5. No Obligation. Nothing herein will obligate the Disclosing Party to
-------------
disclose any of its Confidential Information to the Receiving Party, nor will
either party be in any way obligated to enter into a separate agreement with the
other party, perform services for the other party, or purchase services from the
other party.
6. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". THE
-----------
DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING
ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
7. Return of Materials. All documents and other tangible objects containing
-------------------
or representing Confidential Information which have been disclosed by the
Disclosing Party to the Receiving Party, and all copies thereof which are in the
possession of the Receiving Party, will remain the property of the Disclosing
Party and must be promptly returned to the Disclosing Party upon the Disclosing
Party's written request.
8. No License. Nothing in this Agreement is intended to grant any rights to
----------
either party under any patent, mask work right or copyright of the other party,
nor will this Agreement grant the Receiving Party any rights in or to the
Confidential Information of the Disclosing Party except as expressly set forth
herein.
9. Term. The obligations of the Receiving Party hereunder will survive until
----
such time as all Confidential Information of the Disclosing Party disclosed
hereunder becomes publicly known and made generally available through no action
or inaction of the Receiving Party.
10. Remedies. Each party agrees that any violation or threatened violation
--------
of this Agreement may cause irreparable injury to the Disclosing Party,
entitling the Disclosing Party to seek injunctive relief in addition to all
legal remedies.
11. Miscellaneous. This Agreement will bind and inure to the benefit of the
-------------
parties hereto and their successors and assigns. This Agreement will be
governed by the
43
<PAGE>
laws of the State of California, without reference to conflict
of laws principles. This document contains the entire agreement between the
parties with respect to the subject matter hereof, and neither party will have
any obligation, express or implied by law, with respect to trade secret or
proprietary information of the other party except as set forth herein. Any
failure to enforce any provision of this Agreement will not constitute a waiver
thereof or of any other provision. This Agreement may not be amended, nor any
obligation waived, except by a writing signed by both parties hereto.
______________________________________________________________________
Jutvision Corporation Jutvision Service Provider
By:_______________________ By:_________________________
Name:_____________________ Name:_______________________
Title:____________________ Title:______________________
44