Distribution Agreement - Jutvision Corp. and Toronto Real Estate Board
EXECUTION COPY April 14, 1999
DISTRIBUTION AGREEMENT
----------------------
THIS DISTRIBUTION AGREEMENT (the "Agreement") is entered into as of April
14, 1999 (the "Effective Date"), between Jutvision Corporation, a Delaware
corporation ("Jutvision") with an office located at 124 University Avenue, Palo
Alto, CA 94301, and the Toronto Real Estate Board, a corporation governed under
the laws of the Province of Ontario, with an office located at 1400 Don Mills
Road, Don Mils, Ontario, M3B 3N1 ("TREB").
Jutvision uses the Jutvision Technology and provides the Production Services.
TREB operates the TREB Database. Jutvision desires to be the exclusive provider
of virtual tour technology and production services for the TREB Database. In
consideration of the mutual promises and covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
-----------
1.1 "Basic Package" means up to four scenes captured in a designated
-------------
Property, converted into a corresponding number of Jutvision Images and posted
to the TREB Database.
1.2 "Jutvision Image" means an electronic image of a Property produced by
---------------
or on behalf of Jutvision.
1.3 "Jutvision Technology" means software and hardware used to capture,
--------------------
process and view Jutvision Images.
1.4 "Listing Search Results Screen" means the data that is retrieved from
------------------------------
a set of search criteria by a TREB Member during a listing search.
1.5 "Net Revenues" means the gross amount received by Jutvision from TREB
------------
Members for sales of the Basic Packages and Upgrade Packages, less fifteen
percent (15%) covering: (i) refunds, discounts, credits and allowances, (ii)
packaging, handling fees, freight, and sales taxes and other governmental
charges, and (iii) reasonable provisions for doubtful collections determined in
accordance with GAAP.
1.6 "Production Services" means the services provided by or on behalf of
-------------------
Jutvision in preparing the Basic Packages and Upgrade Packages.
1.7 "Property" means any piece of residential real estate and commercial
--------
real estate within the Territory, including without limitation new homes,
offered for sale or resale that reside on the TREB Database.
1.8 "Service Provider Network" means the network of videographers
------------------------
throughout the Territory with whom Jutvision has entered into agreements to
capture images at designated sites on Jutvision's behalf.
1.9 "Term" means the Initial Term of this Agreement and the Renewal Terms,
----
any, as set forth in Section 6.
1.10 "Territory" means all Toronto Real Estate Board Districts.
---------
1.11 "Transaction Fee" means the quarterly fee Jutvision will pay to TREB
---------------
during the Term based on sales of Basic Packages and Upgrade Packages as
provided in Section 4.1.
1.12 "TREB Database" means the collection of data and documents residing
-------------
on servers operated by or for TREB and accessible on or after the Effective Date
by TREB Members via the TREBNet System, to the extent TREB makes such collection
generally available, to TREB Members and the public via the Internet.
1.13 "TREB Member" means a real estate agent or Broker that has the right
-----------
to access the TREB Database.
1.14 "TREBNet System" means TREB's browser that TREB Members use to access
--------------
listings and other information in the TREB Database, as well as to contact, and
submit orders to, third parties for certain products and services, including the
Productions Services as specifically provided in Section 2.2.
1.15 "TREB Originated Order" means any order received by Jutvision for a
---------------------
Basic Package or Upgrade Package placed by a TREB Member via the TREBNet MLS
Software or pre-approved fax order forms.
1.16 "Upgrade Package" means an addition to a Basic Package consisting of
---------------
one additional scene captured at the same designated Property of the Basic
Package, converted into one additional Jutvision Image for the scene captured
and posted to the TREB Database.
2. PROVISION OF PRODUCTION SERVICES; EXCLUSIVITY
---------------------------------------------
2.1 Sales and Billing. Jutvision will be responsible for receiving and
-----------------
fulfilling orders for Basic Packages and Upgrade Packages. Jutvision will assume
all costs and responsibility for invoicing and collecting revenues for all sales
of Basic Packages and Upgrade Packages, provided, however, that Jutvision does
not assume the risk of collection.
2.2 Image Capturing, Processing and Posting. The parties will work
---------------------------------------
together to implement a system whereby Jutvision will be capable of displaying
Jutvision Images on the TREBNet System. The parties will also work together on
file naming formats and scripts that will attach the Jutvision Images to the
appropriate listings on the TREB Database. Jutvision and TREB agree to set May
15, 1999 as the target date ("Initial Ordering Date") on which TREB will
incorporate an order button on the TREBNet Listing Input Screen which will
facilitate the request for Production Services by TREB Members. The parties
understand and agree that TREB's failure to begin linking and displaying
Jutvision Images on the TREBNet Listing Search Results Screen by May 15, 1999
will result in a reduction of Transaction Fees pursuant to Section 4.1 (b).
Jutvision will have sole responsibility for, and will bear all costs associated
with, capturing images at designated sites through its Service Provider Network,
processing captured images to create Jutvision Images and providing Jutvision
Images to the TREB Database for display on the TREBNet System. TREB will permit
such postings and will work with Jutvision to maintain the ability of the TREB
Database to receive such postings throughout the Term. Jutvision will use
commercially reasonable efforts to process and post each Jutvision Image on
behalf of all TREB Members within four (4) business days after capture of the
images, in each case to the extent Jutvision has the right to do so, provided
that such posting is not delayed by factors attributable to TREB.
2.3 Exclusivity. During the Term, TREB will not directly or indirectly (i)
-----------
promote or market itself or any third party, on the TREBNet System or elsewhere,
as a provider of 360, three-dimensional, virtual reality, virtual tour, virtual
walkthrough or other similar images ("Virtual Tour Images"), or technology or
production services for such Virtual Tour Images; (ii) provide the services of
capturing or processing Virtual Tour Images; (iii) use the services
<PAGE>
of, or enter into any arrangement under which services will be provided by, any
third party with respect to capturing or processing Virtual Tour Images; (iv)
permit any Virtual Tour Images (other than those supplied by Jutvision) or any
site or identity of a third party provider of Virtual Tour Images, or technology
or services therefor, to be posted to, linked to or otherwise made accessible
through the TREB Database; or (v) take any other action inconsistent with the
parties' understanding hereunder that Jutvision will act as the exclusive
provider of Virtual Tour Images, and Production Services therefor.
2.4 Support. Jutvision will establish and maintain a "mailto" link on the
-------
TREBNet System that TREB Members may use to send support-related e-mail messages
to Jutvision. Jutvision will also establish and maintain a toll-free support
telephone line that TREB Members may call with support questions. The hours of
operation for the support telephone line and for monitoring and responding to
support-related e-mail messages will be business days (excluding bank holidays)
from 9:00 am to 5:00 pm Eastern time.
3. MARKETING AND PROMOTION
-----------------------
3.1 TREB Obligations. TREB agrees to market, promote and facilitate sales
----------------
of the Production Services as follows:
(a) TREBNet System. TREB agrees to prominently market and promote the
--------------
Production Services on the TREBNet System. Such marketing and promotion will
include, without limitation:
(i) on the "home" or introductory page of the TREBNet
System, or the page that is first accessed when the TREB Member logs onto the
TREBNet System (the "Home Page"), prominent display of the Jutvision logo,
located above the fold (i.e., visible to an end user without scrolling or
navigation on a 640 by 480 pixel page), that, when clicked on, links directly to
an HTML page located at a URL supplied by Jutvision; provided, however, that the
size of such Jutvision logo will be consistent with the size of logos of third
parties displayed on the Home Page and with the look and feel of the Home Page;
(ii) on each page of the TREBNet System displaying
Jutvision Images, inclusion of a prominent Jutvision logo that, when clicked on,
links directly to an HTML page located at a URL supplied by Jutvision that will
permit TREB Members to order Production Services; provided, however, that the
size of such Jutvision logo will be consistent with the size of logos of third
parties displayed on such display page and with the look and feel of such
display page; and
(iii) with each listing displayed on the TREBNet System for
which a Jutvision Image is available, inclusion of a prominent Jutvision button
that, when clicked on, links directly to the corresponding Jutvision Image on
the TREB Database; provided, however, that the size of such Jutvision logo will
be consistent with the size of logos of third parties displayed on such listing
page and with the look and feel of such listing page.
Without the prior approval of Jutvision, TREB will not display any
advertisements of any competitor of Jutvision on any page that contains a
Jutvision Image and is located on the TREB Database or TREBNet System.
(b) All Versions. All versions of the TREBNet System that TREB
------------
distributes or makes available to TREB Members during the Term will contain a
button that, when clicked on, links directly to a Jutvision server and that
permits TREB Members to electronically submit orders for Production Services to
Jutvision via the Internet or a closed proprietary system. Such button will be
at least as prominent in size, usage and placement as buttons or links for any
other products or services of third parties appearing in the TREBNet System.
(c) Print Advertising. To the extent TREB creates and distributes
-----------------
print advertising promoting the TREBNet System, including print advertising in
magazines, flyers, newsletters and general mailings, TREB will include, from
time to time, in such advertising a Jutvision logo and a brief, suitable
reference to the availability of the Production Services.
(d) Email and Direct Marketing. TREB agrees to include in email and
--------------------------
direct marketing that it generates from time to time a section, reasonably
satisfactory to Jutvision, highlighting the availability and features of the
Production Services. In addition, TREB will permit Jutvision to post email
messages, written by Jutvision and containing marketing information regarding
the Production Services, through servers controlled by TREB to the extent that
TREB distributes an email newsletter.
(e) Seminars. TREB will invite Jutvision to speak and promote its
--------
Production Services at appropriate seminars and training sessions TREB conducts
for TREB Members during the Term. TREB will have the opportunity to review
seminar content prior to the seminar date. TREB or its sales representatives
will distribute to TREB Members at seminars and training sessions subscription
forms and marketing materials created by Jutvision that promote the Production
Services..
(f) TREB shall cooperate with Jutvision in the performance of
Jutvision's obligations under this Agreement.
3.2 Additional Obligations. Jutvision and TREB will, from time to time,
----------------------
use reasonable efforts to cooperate in joint marketing efforts for the
Production Services on such terms and conditions as are mutually agreed. Each
party will assign a project manager to act as the primary liaison with respect
to the relationship provided for hereunder, and all discussions between the
parties with respect to the respective performance of obligations hereunder will
be conducted by these project managers or their designees.
4. FEES
----
4.1 Transaction Fees. During the Term, Jutvision will pay quarterly
----------------
Transaction Fees to TREB as follows:
(a) With respect to orders for Production Services placed via the
TREBNet System by TREB Members ("TREB Originated Orders"), Jutvision will pay to
TREB for each calendar month 10% of Net Revenues collected from sales of Basic
Packages and Upgrade Packages so sold during the quarter.
(b) If the display of Jutvision Images, with their corresponding
listing, is not available on the TREBNet System by May 15, 1999 then,
notwithstanding Section 4.1(a), Jutvision will pay TREB 7% of Net Revenues
collected from sales of Basic Packages and Upgrade Packages from that date until
Jutvision Images are viewable on the TREBNet System.
(c) No Transaction Fees will be due hereunder (i) with respect to
Production Services or Jutvision Images sold to third parties other than as
expressly set forth above and (ii) with respect to Production Services sold by
third parties and posted to the TREB Database, or (iii) with respect to any
Production Services Jutvision distributes free of charge on a promotional basis.
4.2 Payment of Fees. Calculation of quarterly Transaction Fees will
---------------
commence immediately for the calendar month in which the Initial Ordering Date
occurs. Jutvision will make all payments of Transaction Fees net thirty (30)
days from the end of each quarter.
4.3 Inspection of Records. TREB will have the right, at its own expense
---------------------
and not more than once in any twelve (12)
-2-
<PAGE>
month period, to authorize an independent auditor reasonably acceptable to both
parties to inspect those accounting records of Jutvision necessary to verify the
accuracy of fees paid or invoiced by Jutvision under the terms of this
Agreement, provided that such independent auditor has executed a confidentiality
agreement with respect to such records that is reasonably acceptable to
Jutvision. Such inspections will take place during Jutvision's normal business
hours, upon not less than twenty (20) days' prior written notice to Jutvision
and on a date mutually agreed upon by the parties.
5. PROPRIETARY RIGHTS
------------------
5.1 Software.
--------
(a) Jutvision hereby grants to TREB a nonexclusive, worldwide,
royalty-free license to use the Jutvision for Java software (the "Software")
during the Term, in object code only, to display Jutvision Images on pages
retrieved from the TREBNet System. "Use" means storing, loading, installing,
executing or displaying the Software. TREB may not modify the Software or
disable any licensing or control features of the Software.
(b) The Software is owned and copyrighted by Jutvision. The
license set forth in this Section 5.1 confers no title to, nor ownership in, the
Software and is not a sale of any rights in the Software.
(c) TREB may only make copies or adaptations of the Software for
archival purposes or when copying or adaptation is an essential step in the
authorized use of the Software. TREB must reproduce all copyright notices in the
original Software on all copies or adaptations. TREB may only transfer class
files when they are called on by a "requesting" server in the normal course of
Java Applet execution. TREB may not distribute the Jutvision for Java Class
files. Any transfer or copying of the Software by TREB other than as expressly
provided herein constitutes a material breach of this Agreement.
(d) TREB may only use the Software to read .jut files, a file
format proprietary to Jutvision.
(e) TREB may not tamper with or alter in any way the image
displayed when loading each Jutvision Image ("Jutvision Splash Screen") and TREB
shall not hinder the Jutvision Splash Screen from being fully visible upon
loading of each Jutvision Image. TREB will not obstruct in any way the Jutvision
Splash Screen and/or screen logo with any other images, frames, tables or any
other HTML or JavaScript code.
(f) TREB will not disassemble or decompile the Software
including single Jutvision Java Class files under any circumstances. The
disassembly or decryption by TREB of any Jutvision Java Class file constitutes a
material breach of this Agreement.
(g) TREB will not export or re-export the Software or any copy
or adaptation in violation of any applicable laws or regulations.
(h) The Software and any accompanying documentation have been
developed entirely at private expense. In so far as the United States government
or any agency thereof may acquire any rights under this Agreement, the Software
and any accompanying documentation are delivered and licensed as "commercial
computer software" as defined in DFARS 252.227-7013 (Oct 1988), DFARS 252.211-
7015 (May 1991) or DFARS 252.227-7014 (Jun 1995), as a "commercial item" as
defined in FAR 2.101(a), or as "Restricted computer software" as defined in FAR
52.227-19 (Jun 1987)(or any equivalent or superseding agency regulation or
contract clause), whichever is applicable. The United States government or
agency thereof shall have only those rights provided for such Software and any
accompanying documentation by the applicable FAR or DFARS clause consistent with
this Agreement between TREB and Jutvision.
5.2 Jutvision Images.
----------------
(a) All Jutvision Images, whether or not produced for TREB customers
and whether or not posted to the TREB Database, are, and at all times will
remain, the exclusive property of Jutvision, and no provision of this Agreement
implies any transfer to TREB of any ownership interest in any Jutvision Image;
provided, however, that, with respect to any Jutvision Image produced for a TREB
Member and posted to the TREB Database, Jutvision will not make use of such
Jutvision Image outside of the scope of this Agreement without the consent of
such TREB Member.
(b) Jutvision hereby grants to TREB a nonexclusive, worldwide,
royalty-free, nontransferable license to display, perform and reproduce
Jutvision Images on the TREB Database solely for the purposes contemplated in
this Agreement. TREB will not distribute, modify, edit, or prepare derivative
works from the Jutvision Images without the prior written permission of
Jutvision. The foregoing license does not include any right to grant or
authorize sublicenses.
5.3 Trademarks.
----------
(a) Jutvision Marks.
---------------
(i) Jutvision owns and at all times will continue to
own the trademarks, service marks and/or trade names JUTVISION and the Jutvision
logo, BAMBOO.COM and the bamboo.com logo, as well as any name or mark Jutvision
may subsequently adopt as a trade name or to designate the Production Services
(collectively, the "Jutvision Marks"). TREB will not take any actions
inconsistent with Jutvision's ownership rights.
(ii) Subject to the restrictions set forth herein,
Jutvision hereby grants TREB a nonexclusive, worldwide, royalty-free, fully paid
up, nontransferable right to use the Jutvision Marks, during the Term, subject
to the prior approval of Jutvision, solely in connection with promotion and
marketing of the Production Services as provided in Section 3. TREB's use of the
Jutvision Marks will not create in TREB any right, title or interest therein or
thereto. All use by TREB of the Jutvision Marks will inure to the exclusive
benefit of Jutvision. At Jutvision's reasonable request, TREB will assist
Jutvision with the protection and maintenance of the Jutvision Marks. TREB may
only use the Jutvision Marks as expressly permitted herein. TREB agrees to use
the Jutvision Marks in a manner commensurate with the style, appearance and
quality of Jutvision's services and/or products bearing such marks.
(b) TREB Marks.
----------
(i) TREB owns and at all times will continue to own
the trademarks, service marks and/or trade names customarily used by TREB during
the Term (the "TREB Marks"). Jutvision will not take any actions inconsistent
with TREB' ownership rights.
(ii) Subject to the restrictions set forth herein, TREB
hereby grants Jutvision a nonexclusive, worldwide, royalty-free, fully paid up,
nontransferable right to use the TREB Marks, during the Term, solely in
connection with promotion and marketing of the Production Services. Jutvision's
use of the TREB Marks will not create in Jutvision any right, title or interest
therein or thereto. All use by Jutvision of the TREB Marks will inure to the
exclusive benefit of TREB. At TREB's reasonable request, Jutvision will assist
TREB with the protection and maintenance of the TREB Marks. Jutvision may only
use the TREB Marks as expressly permitted herein. Jutvision agrees to use the
TREB Marks in a manner commensurate with the style, appearance and quality of
TREB's services and/or products bearing such marks.
-3-
<PAGE>
5.4 Limitation on Grant of Rights. Except as expressly provided herein,
-----------------------------
neither party receives any other right or license to the technology or
intellectual property of the other party.
6. TERM AND TERMINATION
--------------------
6.1 Term. Unless earlier terminated as set forth below, this Agreement
----
will become effective upon the Effective Date and continue for a period of two
(2) years (the "Initial Term"). Thereafter, this Agreement will be automatically
renewed for successive one (1) year periods (each such period a "Renewal Term")
unless either party notifies the other in writing not less than ninety (90) days
prior to the end of the then-current term of its intention to terminate this
Agreement as of the end of such term.
6.2 Termination for Breach. This Agreement will terminate in the event a
----------------------
party materially breaches any material term, condition or representation of this
Agreement or materially fails to perform any of its material obligations or
undertakings hereunder, and fails to remedy such default within sixty (60) days
after being notified by the non-breaching party of such breach or failure;
provided, however, that the non-breaching party will not unreasonably withhold
or delay its consent to extend the cure period if the breaching party has
commenced cure during the sixty-day notice period and pursues cure of the breach
in good faith.
6.3 Effects of Termination. Upon expiration or termination of this
----------------------
Agreement:
(a) Jutvision will cease all use of the TREB Marks;
(b) Commensurate with the quality of services provided prior to such
expiration or termination, Jutvision will continue to provide Production
Services and support to third parties who purchased such Production Services
prior to such expiration or termination;
(c) TREB will cease all use of the Jutvision Marks, the Jutvision
Technology and the Jutvision Images and shall purge all Jutvision Technology and
Jutvision Images from its servers; provided, however, that, following any
expiration or termination, the licenses granted above under Sections 5.1 and 5.2
shall survive for a period of six (6) months thereafter with respect to
Jutvision for Java and Jutvision Images provided to TREB hereunder prior to
expiration or termination, to the extent that such Jutvision Images accompany
listings on the TREB Database and such Jutvision for Java is necessary to
display such Jutvision Images.
(d) Each party will promptly destroy or return any Confidential
Information of the other party in its possession.
6.4 Survival of Certain Terms. The provisions of Sections 5.1(b), 5.1(e)-
-------------------------
(h), 5.2(a), 5.3(a)(i), 5.3(b)(i), 5.4, 6.3, 6.4, 7, 8, 9, 10 and 11 will
survive the expiration or termination of this Agreement for any reason. All
other rights and obligations of the parties will cease upon expiration or
termination of this Agreement.
7. CONFIDENTIALITY
---------------
7.1 Definition. "Confidential Information" means any trade secrets,
----------
confidential data or other confidential information relating to or used in the
business of the other party (the "Disclosing Party"), that a party (the
"Receiving Party") may obtain from the Disclosing Party during the Term (the
"Confidential Information"), except as herein provided, and that is marked
"Confidential," "Proprietary" or in a similar manner to indicate its
confidential nature. Confidential Information may also include oral information
disclosed pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and confirmed in writing as
confidential within thirty (30) days after its oral disclosure, which is marked
in a manner to indicate its confidential nature and delivered to the Receiving
Party. The terms of this Agreement and the existence of this Agreement will
constitute Confidential Information, except to the extent that Jutvision
discloses such information in good faith to a legitimate potential, or actual,
strategic investor, investment banker, venture capital firm or consultant.
7.2 General. Subject to Section 11.2, each party agrees to treat the other
-------
party's Confidential Information with the same degree of care as it maintains
its own information of a similar nature. Without limiting the foregoing, subject
to Section 11.2, each party will use at least the same procedures and degree of
care which it uses to protect the confidentiality of its own confidential
information of like importance, and in no event less than reasonable care.
7.3 Exceptions. The foregoing restrictions will not apply to information
----------
that (i) is known to the Receiving Party at the time of disclosure by the
disclosing party; (ii) is or becomes publicly known through no wrongful act of
the Receiving Party; (iii) is rightfully received from a third party without
restriction; (iv) is independently developed by the Receiving Party; (v) has
been approved for release by written authorization of the Disclosing Party; (vi)
is not marked or similarly designated as confidential, and is provided for a
purpose or in a manner that reasonably contemplate, or would naturally be
understood to contemplate, disclosure or use by others; and (vii) is disclosed
pursuant to a valid order of any governmental authority provided that the party
intending to make disclosure in such circumstances has given the other party
prompt notice prior to making such disclosure so that such party may seek a
protective order or other appropriate remedy prior to such disclosure.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
8.1 Each party represents and warrants to the other that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation set forth above and
is duly qualified and authorized to do business as a foreign corporation in good
standing in all jurisdictions in which the nature of its assets or business
requires such qualification;
(b) it has full right, power and authority to enter into this
Agreement and to perform all of its obligation hereunder;
(c) its execution, delivery and performance of this Agreement have
been duly and properly authorized by all necessary actions and this Agreement
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms; and
(d) its execution, delivery and performance of this Agreement will
not, with or without the giving of notice or passage of time, or both, conflict
with, or result in a default or loss of rights under, any provision of its
certificate of incorporation or by-laws or any other material agreement or
understanding to which it is a party or by which it or any of its material
properties may be bound.
8.2 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE ONLY
----------
WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE PARTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
9. INDEMNIFICATION
---------------
9.1 Each party (the "Indemnifying Party") will indemnify, defend and hold
harmless the other party and its officers,
-4-
<PAGE>
directors, agents, employees, successors and permitted assigns (hereinafter
collectively the "Indemnified Party") from and against any and all losses,
claims, suits, proceedings, liabilities, expenses (including reasonable
attorneys' fees and expenses), causes of action, damages and costs (collectively
"Claims") arising out of or in connection with the breach, potential breach or
inaccuracy of, or failure to comply with, any of the representations and
warranties contained in Section 8 on the part of the indemnifying Party.
9.2 Any Indemnified Party entitled to indemnification under this Section
will give prompt notice to the indemnifying Party of any Claim with respect to
which it seeks indemnification, but the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability except to the
extent that it is actually prejudiced by such delay. The Indemnifying Party
shall assume, at its sole cost and expense, the defense of such Claim with
counsel reasonably satisfactory to the Indemnified Party. The Indemnifying Party
will not be subject to any liability for any settlement made without its
consent. The Indemnifying Party shall not, without consent of the Indemnified
Party, effect any settlement or discharge or consent to the entry of any
judgment, unless such settlement or judgment includes as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
general release from all liability in respect of such claim or litigation.
10. LIMITATION OF LIABILITY
-----------------------
EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 9 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION
2.3 OR 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS
OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
11. GENERAL PROVISIONS
------------------
11.1 Independent Contractors. The relationship of Jutvision and TREB
-----------------------
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed to (i) give either party the power
to direct and control the day-to-day activities of the other, (ii) constitute
the parties as partners, joint venturers, co-owners or otherwise as participants
in a joint undertaking, or (iii) allow either party to create or assume any
obligation on behalf of the other for any purpose whatsoever. All financial and
other obligations associated with a party's business are the sole responsibility
of that party.
11.2 Press Plans. The parties agree to participate in a joint press
-----------
announcement regarding the relationship entered into hereunder that will take
place on a mutually agreed upon date. The parties shall agree to the form and
content of the joint press release. Either party may issue its own press
releases, subject to the other party's prior approval, not to be unreasonably
withheld, of the content within the release. Each party will furnish its written
acceptance of or objection to any proposed announcement within forty-eight (48)
hours; otherwise such proposed announcement will be deemed approved. Any other
press announcement by either party regarding the subject matter of this
Agreement will be subject to the other party's approval, which shall not be
withheld or delayed unreasonably.
11.3 Entire Agreement. This Agreement sets forth the entire agreement and
----------------
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged.
11.4 Notices. Any notice required or permitted by this Agreement will be
-------
deemed given if sent by registered mail, postage prepaid, addressed to the other
party at the address set forth above or at such other address for which such
party gives notice hereunder. Delivery will be deemed effective three (3) days
after deposit with postal authorities.
11.5 Force Majeure. Nonperformance of either party will be excused to the
-------------
extent that performance is rendered impossible by storm, lockout or other labor
trouble, riot, war, rebellion, strike, fire, flood, accident or other act of
God, governmental acts, orders or restrictions, or any other reason where
failure to perform is beyond the control and not caused by the gross negligence
or willful misconduct of the non-performing party
11.6 Non-Assignability and Binding Effect. Except as expressly provided
------------------------------------
herein, this Agreement may not be assigned or transferred, or may any right or
obligation hereunder be assigned or delegated, to a third party by either party
without the prior written consent of the other party hereto. Notwithstanding the
foregoing, either party may assign this Agreement or assign or delegate its
rights and obligations under this Agreement to a successor to all or
substantially all of its business or assets relating to this Agreement whether
by sale, merger, operation of law or otherwise. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
11.7 Modification; Waiver. No modification of or amendment to this
--------------------
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged, and the waiver of any
breach or default will not constitute a waiver of any other right hereunder or
any subsequent breach or default.
11.8 Headings. The headings to the sections and subsections of this
--------
Agreement are included merely for convenience of reference and will not affect
the meaning of the language included therein.
11.9 Severability. In the event that it is determined by a court of
------------
competent jurisdiction as part of a final nonappealable ruling, government
action or binding arbitration, that any provision of this Agreement (or part
thereof) is invalid, illegal, or otherwise unenforceable, such provision will be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement will remain in full force and
effect and bind the parties according to its terms. To the extent any provision
(or part thereof) cannot be enforced in accordance with the stated intentions of
the parties, such provision (or part thereof) will be deemed not to be a part of
this Agreement.
11.10 Counterparts; Facsimile Signatures. This Agreement may be executed by
----------------------------------
exchange of signature pages by facsimile and/or in any number of counterparts,
each of which shall be an original as against any party whose signature appears
thereon and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
-5-
<PAGE>
JUTVISION CORPORATION TORONTO REAL ESTATE BOARD
By: /s/ Howard Field By: /s/ Don Kottick
Title: Howard Field, Vice President Title: Don Kottick, Vice President,
---------------------------- -------------------------------------
Technology and Business Developments
-------------------------------------
Date: 4-14-99 Date: April 16, 1999
-6-