INTERNET COOPERATION AGREEMENT
THIS INTERNET COOPERATION AGREEMENT (the "Agreement") is entered into
this 1st day of October 1999 by and between CompleteHome Operations, Inc.
("CompleteHome"), a Delaware corporation with an office located at 200 Vallejo
Street, San Francisco, California 94111 and Century 21 Real Estate Corporation
("Century 21"), a Delaware corporation with an office located at 6 Sylvan Way,
Parsippany, New Jersey 07054.
W I T N E S S E T H:
WHEREAS, Century 21 is the franchisor of the Century 21(R) real estate
brokerage franchise system (the "System"); and
WHEREAS, CompleteHome is a provider of, among other things, a
residential real estate services portal on the Internet ("Internet Portal"); and
WHEREAS, CompleteHome and Century 21 wish to engage in a cooperative
marketing effort with each other in accordance with the terms and conditions of
this Agreement.
NOW THEREFORE, in consideration of the promises and covenants contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Term. The term of this Agreement (the "Term") shall commence
on October 1, 1999 and shall terminate on December 31, 2039, unless earlier
terminated in accordance with the terms herein set forth.
Section 2. CompleteHome Obligations. (a) During the Term, CompleteHome
shall display the listings of residential real estate offered for sale through
Century 21's franchisees (the "Listings") contained on the System web site
operated by Century 21 ("System Listings") on the Internet Portal and, subject
to the prior written approval of Century 21, on the Internet web sites of third
parties selected by CompleteHome. The System Listings will be placed as part of
the content of the residential property listings pages located on the Internet
Portal. The System Listings displayed by CompleteHome will include a detailed
description of the property together with the identity of the broker for the
particular Listing (including the corresponding agents of such broker as may be
required by law or as may be requested by the broker). CompleteHome shall
provide Internet traffic access to the Listings on the Internet Portal at no
cost to the Internet users. With respect to System Listings, CompleteHome will
not without the prior consent of Century 21 (i) display the street address for a
particular System Listing and/or (ii) identify the applicable agent of the
broker associated with the System Listing. In addition, CompleteHome will not
display any System Listing where doing so would violate any restriction imposed
on such System Listing or where in the reasonable judgment of Century 21 the
display of such System Listing would be detrimental to the System.
(b) CompleteHome shall make available on the Internet Portal broker
profile screens (including agent profile screens to the extent requested by the
respective broker), which screens shall include general data and information for
each broker (and agent as the case may be) in the System, as such information is
made available by Century 21. CompleteHome shall design and develop a profile
template to be dedicated for the System which template shall include distinct
characteristics, including System-specific attributes, so as to differentiate
the profile screens for the System from similar content for other systems. The
template design shall be subject to the approval of Century 21, which approval
shall not be unreasonably withheld. The profile screens shall be accessible, via
hyperlink, from the System Listings attributable to such broker/agent on the
residential property listing pages of the Internet Portal. The profile screens
may also be accessed by Internet users through search criteria from other
locations on the Internet Portal. Although profile screens shall not include any
hyperlinks to web sites or destinations other than the Internet Portal without
the prior consent of Century 21, a profile screen may include a communication
link to the listing broker (including the corresponding agents of such broker as
may be required by law or as may be requested by broker), such as, customized
telephone numbers, e-mail delivery, e-mail-to-fax delivery and other vehicles of
communication to reach the broker as such vehicles become generally available
for such purpose and are approved by the parties.
(c) CompleteHome will, in cooperation with Century 21, maintain lines
of communication with the brokers and agents (as permitted) of the System to,
among other things, promote CompleteHome and the services offered by or through
CompleteHome in connection with the Internet Portal. Through the use of
communication mediums such as e-mail, fax and telephone, CompleteHome will
distribute informational and marketing materials to the brokers and agents of
the System. All information disseminated by CompleteHome to the brokers and
agents of the System shall be subject to the prior approval of Century 21. In
addition, CompleteHome shall solicit brokers and agents of the System to
participate in various listing and other services ("Ancillary Services") which
will be offered by or through CompleteHome. For Ancillary Services requested by
a broker or agent of the System, CompleteHome will enter into an agreement with
such broker or agent which sets forth the terms and conditions of such
agreement. CompleteHome shall be solely responsible for honoring its obligations
under all such broker and agent agreements including collecting any and all
payments due in connection with the Ancillary Services from the particular
broker or agent. For Ancillary Services provided through agreements by and
between CompleteHome and third party service/product providers, CompleteHome
shall be solely responsible for honoring its obligations under all such third
party provider agreements, including collecting any and all payments,
commissions, rebates or other similar amounts (the "Ancillary Service Revenues")
payable to CompleteHome by such third parties relating to the broker's and
agent's participation in the Ancillary Services. With respect to the Ancillary
Services provided through agreements by and between CompleteHome and third party
service/product providers only, CompleteHome agrees that it shall not promote,
recommend or offer to the brokers and/or agents of the System any services or
products, or providers thereof, which may be the subject of an exclusive
marketing agreement (or similar arrangement) entered into or maintained by
Century 21 or any affiliate of Century 21.
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(d) CompleteHome will implement and maintain during the Term a system
to track and record Internet traffic to the System Listings on a "per broker"
basis and "per agent" basis. CompleteHome shall furnish a detailed report to (i)
Century 21 with respect to the System Listings and (ii) each broker with respect
to the System Listings attributable solely to such broker or its agent, as
applicable. The report shall be issued by CompleteHome, via electronic means, in
a format and containing substance mutually agreed by the parties. A report shall
be issued (i) to Century 21 for each calendar month during the Term within
fifteen (15) days from the end of the particular month and (ii) to any broker of
the System within fifteen (15) days from the date on which said broker requests
a report from CompleteHome (but in no event more than one (1) time in any
calendar quarter during the Term with respect to a particular broker).
Information to be included in the reports to Century 21 will include
information, such as, the total number of System Listings viewed and the total
number of leads generated by System Listings to the brokers and agents.
(e) At the request of Century 21, CompleteHome shall make available to
Century 21 various information, data and content prepared by or through
CompleteHome for display through the System web site. Display of the
information, data and content, including without limitation, any presentation or
placement criteria, shall be subject to the mutual agreement of the parties,
which approval shall not be unreasonably withheld. Access to all such
information, data and content shall be provided to Century 21, at no cost.
Further, all such CompleteHome information, data and content shall remain the
property of CompleteHome and shall reside on a CompleteHome-designated server.
During the Term, Century 21 shall have a non-exclusive, non-transferable,
limited license under this Agreement to access and use such information, data
and content from the System web site. The environment in which such CompleteHome
information, data and content is displayed on behalf of Century 21 shall
maintain a similar "look and feel" with respect to the System web site so as to
foster a seamless transfer from the System web site to the CompleteHome server.
(f) CompleteHome will be responsible for the management of maintenance
and support services provided by third party providers for the System web site
("Third Party Providers"). Century 21 shall promptly undertake to assign to
CompleteHome the agreements with Third Party Providers for such maintenance and
support services. CompleteHome will, in cooperation with Century 21, contact
Third Party Providers to notify Third Party Providers of the appointment of
CompleteHome under this subsection (f) and each of Century 21 and CompleteHome
shall execute the necessary documents, if any, to effectuate CompleteHome's
appointment with respect to the management of such services on behalf of Century
21. Management services shall include, among other things, assisting in
negotiations with service providers, reviewing/approving invoices,
processing/remittance of payments due to Third Party Providers, monitoring
performance and other related services as agreed by the parties. In no event
shall CompleteHome have the right (i) to obligate Century 21 to any provider of
maintenance and support services for the System web site without the prior
written consent of Century 21 or (ii) to modify the terms of the agreements (or
terminate such agreements) with Third Party Providers whereby such modifications
would not be in the best interest of Century 21, including without limitation,
reducing
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the service or performance levels established in any of the agreements with
Third Party Providers.
(g)(i) During the Term, CompleteHome shall serve as a non-exclusive
business development representative ("BDR") for Century 21 as it relates to
third party advertising on the System web site. In its capacity as a BDR,
CompleteHome shall offer and provide assistance (e.g. recommendations,
strategies and other pertinent information) to Century 21, at no cost to Century
21, with respect to Century 21's planning and development of third party
advertising and content on the System web site (the "BDR Services"). Although
CompleteHome agrees to perform the BDR Services to acceptable standards as
recognized throughout the Internet advertising industry, CompleteHome does not
guarantee the success of any idea, concept, plan or design provided by
CompleteHome to Century 21. Century 21 expressly reserves the right to approve
in advance any work product, advertising campaign, project or other materials
submitted by CompleteHome to Century 21 for display on the System web site or
other web site, as applicable. Nothing contained in this Section 2(g) shall be
deemed to require CompleteHome to undertake any campaign, prepare any
advertising materials or publicity or cause the publication of any Internet
advertising which, in CompleteHome's judgment, is misleading, indecent,
libelous, unlawful or otherwise prejudicial to either party's interest. To the
extent applicable, CompleteHome shall be responsible for obtaining all releases,
licenses (including any assignments thereof), permits and other authorizations
needed to use or display content (e.g. names, likenesses, endorsements and
testimonials) on the System web site; provided, however, that Century 21 shall
be solely responsible for the accuracy, completeness and propriety of any and
all information furnished to CompleteHome by Century 21 (or on Century 21's
behalf) in connection with the BDR Services. The parties shall meet on an annual
basis, or more frequently as agreed by the parties, to prepare and approve an
Internet business development agenda and schedule (the "Plan") for the then
upcoming calendar year. The Plan shall be prepared in writing and shall outline,
in reasonable detail, anticipated Internet business development activities,
marketing alliance promotions, restrictions on marketing efforts and the like.
The parties will also meet to discuss and evaluate Century 21's development of
Internet business activities and opportunities relating to the placement of
advertising on the System web site as such activities and opportunities arise
during the Term of this Agreement and prior to Century 21's commitment to any
third party relating thereto.
(g)(ii) As part of the appointment of CompleteHome as the BDR and
subject to the provisions in subsection (g)(iii) below, CompleteHome shall place
any and all third party advertisements on the System web site. Such appointment
by Century 21 of CompleteHome for the placement of third party advertisements
shall be exclusive in nature. CompleteHome will enter into and maintain the
agreements with third parties for the placement of such advertising and shall be
responsible for processing all requirements under such arrangements including
the collection of any and all payments due in connection with the placement of
such advertising. The presentation and/or location of third party advertising on
the System web site shall be subject to the agreement of the parties.
Notwithstanding the foregoing, for each six (6) month period during the Term
(commencing on the first day of the first full calendar month of the Term) (the
"Period"), Century 21 shall have the right to cause CompleteHome to place, in
Century 21's discretion, third party advertisements on the System web site
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(the "Allotted Ads"); provided, however, that in no event shall the total number
of Century 21-designated impressions for such advertisements on the System web
site in a particular Period exceed six percent (6%) of the total number of
impressions placed on the System web site for such Period. Any expenses incurred
by Century 21 in reformatting portions of the System web site to accommodate
advertising placed by CompleteHome shall be borne solely by CompleteHome. From
time to time during the Term of this Agreement, either party may request the
other party to review the applicable percentage of Allotted Ads allocated to
Century 21 and such percentage may be adjusted subject to such review and the
mutual agreement of the parties.
(g)(iii) With respect to the placement of advertisements pursuant to
subsection (g)(ii) above, the parties acknowledge that in no event shall any
such advertising be placed on the System web site which, in the judgment of
Century 21, would be a violation of any marketing agreement (or similar
arrangement) to which Century 21 (or an affiliate of Century 21) is a party in
effect as of the date of this Agreement. If, in the judgment of Century 21, the
placement of any advertising by CompleteHome would be considered a violation of
any marketing agreement (or similar arrangement) entered into by Century 21 (or
an affiliate of Century 21), then Century 21 may, upon written notice to
CompleteHome, cause CompleteHome to discontinue and remove such advertising from
the System web site and take any other steps reasonably required by Century 21
to ensure that Century 21 (or the applicable affiliate of Century 21) is not in
violation of such marketing agreement (or similar arrangement). Further, in no
event shall CompleteHome offer for placement or place any advertising of an
advertiser on the System web site whereby such advertiser engages in a business
which is, directly or indirectly, competitive in nature to any businesses or
operations of Century 21 or any Century 21's affiliates. During the Term,
CompleteHome agrees to provide Century 21 with advance notice of advertising
which CompleteHome plans to place on the System web site. Such notice shall be
sent electronically (e.g. e-mail) to Century 21's designated project
representative (or other method or project contact as may be agreed to by the
parties) and shall at least identify the name of the prospective advertiser
together with a general description of the nature of the goods and services
offered by such advertiser. Century 21 shall have five (5) business days from
the date of the notice to object, in writing, to the placement of advertising of
the advertiser identified in the notice. In the event that CompleteHome does not
receive Century 21's objection to the advertiser within the stated deadline,
then Century 21's approval of the advertiser shall be deemed granted. The
proposed artwork and content of any and all advertising shall be posted on a
designated CompleteHome web site for review purposes by Century 21. Such web
site shall be provided to Century 21 at no cost and shall be operational on a
24X7 basis. During the Term, CompleteHome agrees that it shall not place any
advertisements on the System web site with respect to the third parties and/or
industries identified in Exhibit A, which is attached hereto and made part
hereof. From time to time, Century 21 may modify Exhibit A by adding or deleting
third parties or industries as the case may be.
(h) CompleteHome shall serve as the non-exclusive advertising placement
consultant for Century 21 for the purpose of the placement of Internet general
advertising on behalf of Century 21 and the System. CompleteHome shall offer and
provide assistance (e.g. advice, recommendations, strategies and other pertinent
information) to Century 21, at no cost to Century 21, with respect to Century
21's the
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negotiation, purchase and placement of Internet media in connection with the
promotion of the Systems and/or the System web site. The parties shall meet on
an annual basis, or more frequently as agreed by the parties, to discuss and
prepare an Internet purchase and placement agenda and schedule (the "Media
Plan") for the then upcoming calendar year. The Media Plan shall be prepared in
writing and shall outline, in reasonable detail, anticipated Internet purchase
and placement activities, marketing alliance promotions, restrictions on
marketing efforts and the like. The parties will also meet to discuss and
evaluate Century 21's development of Internet business activities and
opportunities relating to the placement of Internet general advertising as such
activities and opportunities arise during the Term of this Agreement and prior
to Century 21's commitment to any third party relating thereto, including
without limitation, any commitment with a third party to serve as Century 21's
Agency of Record for the placement and purchase of general Internet advertising.
(i) Subject to Section 11 below, CompleteHome shall place the
trademarks, logos or other identifying marks of Century 21 (the "Century 21
Marks") on the section(s) of the Internet Portal designated for the System
Listings and/or the System. Placement and identification of the Century 21 Marks
shall be at least as prominent as the placement and identification of any other
real estate brokerage system or company in the property listing pages of the
Internet Portal or other locations on the Internet Portal where such systems and
companies are collectively displayed. In no event shall CompleteHome state or
imply a preference for a particular real estate brokerage system or company over
Century 21 or the System. Further, CompleteHome shall provide Century 21, at
CompleteHome's cost, with fifty thousand (50,000) banner advertisement
impressions per calendar month. The banner advertisements will be located at the
top of the applicable web site pages and will provide a hyperlink from the
Internet Portal to the System web site. The design of the banner advertisement
will be provided to CompleteHome by Century 21. From time to time during the
Term of this Agreement, either party may request the other party to review the
designated number of banner advertisements allocated to Century 21, among other
aspects relating to the hyperlink to the System web site. The number of
impressions and other related aspects thereto may be adjusted subject to such
review and the mutual agreement of the parties.
(j) On or about the execution of this Agreement, CompleteHome shall
appoint a designated project representative who will serve as the primary point
of contact with Century 21 for the purpose of carrying out the day-to-day
activities under this Agreement. The project representative shall be qualified
and shall have the appropriate authority to approve requests made by Century 21
in performing CompleteHome's obligations under this Agreement.
Section 3. Century 21 Obligations. (a) During the Term, Century 21
shall provide to CompleteHome System Listings which are made available to
Century 21 by or through the brokers of the System. In providing the System
Listings, Century 21 shall furnish to CompleteHome detailed property
descriptions together with the identity of the broker for the particular System
Listings (including the corresponding agents of such broker as may be required
by law or as may be requested by the broker) together with the information
required to complete/update profile screens for the brokers and agents (as
applicable) of the System. The System Listings, including
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property descriptions and broker/agent information and data (and changes in such
information), shall be provided daily, via electronic means, from Century 21 to
CompleteHome. The format of such information and the particular time of transfer
of the information shall be mutually agreed by the parties. Although Century 21
does not guarantee the accuracy of the information furnished to CompleteHome,
Century 21 shall use commercially reasonable efforts to ensure that such
information is an accurate and complete reflection of the information provided
by the brokers to Century 21 as of the date of the transfer to CompleteHome.
Century 21 will promptly notify CompleteHome of any incomplete or inaccurate
information discovered by Century 21 so that CompleteHome may issue an updated
version of the information.
(b) Century 21 shall use commercially reasonable efforts to promote
CompleteHome and its services (including general descriptions of the various
features offered by CompleteHome on the Internet Portal) to the brokers and
agents of the System and to encourage the brokers and agents to participate in
the programs developed and offered by or through CompleteHome in connection with
this Agreement. Century 21 will cooperate, in good faith, with CompleteHome to
assist CompleteHome in designing and developing marketing materials, literature
and other forms of communications to be issued by CompleteHome to the brokers
and agents of the System. Although such assistance will include information and
recommendations from Century 21, Century 21 will not be responsible to provide
any financial assistance to CompleteHome pursuant to this subsection (b).
(c) From time to time, Century 21 shall submit to CompleteHome for
display on the Internet Portal various System-specific information, data and
content prepared by or through Century 21 for the System web site. As such
information, data and content is considered by Century 21 to be valuable and
proprietary in nature, the parties shall, prior to any transfer of such
information, data and content to CompleteHome, mutually agree as to the terms of
such transfer including the manner in which the information, data and content
will be used and/or displayed on the Internet Portal. Among other aspects to be
contemplated in reaching such agreement, the parties shall consider (i) the
uniqueness of the information, data or content to be transferred to
CompleteHome, (ii) the impact on Century 21 and the System, if any, of the
display of such information, data or content on the Internet Portal, (iii) the
scope and breadth of the proposed display, (iii) the "look and feel" of the
proposed display, (iv) the duration of the proposed display, (v) the display of
similar information by real estate brokerage systems other than the System and
(vi) Century 21's cost and expense attributable to the design, development
and/or publication of such information, data and content. All costs to display
and maintain the information, data and content on the Internet Portal shall be
the responsibility of CompleteHome. Further, all such Century 21 information,
data and content shall remain the property of Century 21; provided, however,
that CompleteHome shall have, during the Term, a non-exclusive,
non-transferable, limited license under this Agreement to receive, use and
display such information, data and content on the Internet Portal.
(d) Subject to Section 11 below, Century 21 shall place the trademarks,
logos or other identifying marks of CompleteHome (the "CompleteHome Marks") on
the System web site. Placement of the CompleteHome Marks shall be in a prominent
location as agreed by the parties. Further, through a CompleteHome-identifying
icon
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placed on the System web site, Century 21 will provide, at CompleteHome's
expense, a hyperlink connecting the System web site to the section of the
Internet Portal designated for the System Listings and the System as agreed to
by the parties.
(e) Century 21 agrees to reference CompleteHome and/or its affiliation
with Century 21 and the System in all of Century 21's off-line advertising (as
defined below), where appropriate. The placement of such references in off-line
advertising shall be at the cost of CompleteHome provided that Century 21
obtains CompleteHome's advance approval prior to incurring any such costs. The
location and form of the references to CompleteHome in the off-line advertising
shall be subject to the mutual agreement of the parties. Upon the execution of
this Agreement or as soon thereafter as commercially practicable, Century 21 and
CompleteHome shall meet to review Century 21's commitments and schedules for
off-line advertising in effect as of the date of this Agreement. For the
purposes of this subsection (e), the reference to "off-line advertising" shall
include, but not be limited to, advertising placed via print, radio, television
or other forms of media other than the Internet but shall not include any
advertising by the franchisees of the System.
(f) On or about the execution of this Agreement, Century 21 shall
appoint a designated project representative who will serve as the primary point
of contact with CompleteHome for the purpose of carrying out the day-to-day
activities under this Agreement. The project representative shall be qualified
and shall have the appropriate authority to approve requests made by
CompleteHome in performing Century 21's obligations under this Agreement.
Section 4. Commissions/Fees. (a) Ancillary Services Commission. (i)
During the Term and to the extent permitted by law, CompleteHome shall pay
commissions on the Ancillary Service Revenues attributable to leads originating
from the System and the brokers and agents of the System in the amount of ten
percent (10%) of such Ancillary Service Revenues. Such commissions shall be paid
by CompleteHome to Century 21 with respect to any leads originating from the
System web site or to the particular broker with respect to any leads
originating from the broker (and such broker's agents), including without
limitation, any leads generated from a particular broker's web site. The
commissions payable by CompleteHome to Century 21 or the broker (as the case may
be) with respect to the Ancillary Service Revenues generated in each calendar
quarter shall be paid not more than thirty (30) days after the end of such
quarter. CompleteHome shall provide Century 21 with each payment made to Century
21 a report, detailing the Ancillary Service Revenues generated by the System,
the Ancillary Services Revenues attributable to the brokers and agents of the
System, the origin of the applicable leads and the calculation of the
commissions paid thereon. Further, CompleteHome shall provide the broker with
each such payment a report, detailing the Ancillary Service Revenues
attributable to the broker and its agents (broken down on a "per agent" basis)
and the calculation of the commissions paid thereon.
(a)(ii) From time to time during the Term (but no more than one (1)
time in any calendar quarter), CompleteHome or Century 21 may, upon written
notice to the other party, initiate a review to determine an equitable
adjustment, if any, in the rate of commission payable on Ancillary Service
Revenues in effect as of the date on which notice is issued. In the event that
it is determined by the parties that an adjustment is
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warranted based on the totality of the circumstances, then such adjustment shall
become effective immediately upon such determination without the necessity of
further notice. In the event that it is determined that an adjustment is not
warranted based on the totality of the circumstances (or, despite each party's
good faith efforts, the parties are unable to reach agreement as to an equitable
adjustment in the rate of commission), then the rate of commission in effect as
of the date of the notice shall remain in effect and unchanged.
(b) Advertising Commission. (i) During the Term and in consideration of
the services provided by CompleteHome pursuant to Section 2(h) above, among
other services and value provided by CompleteHome, CompleteHome shall pay to
Century 21 commissions on the total amount of the net advertising revenues ("Net
Advertising Revenues") generated by and paid to CompleteHome in connection with
any and all advertising placed on the System web site in the amount of ten
percent (10%) of the Net Advertising Revenues. The commissions payable to
Century 21 with respect to the Net Advertising Revenues generated in each
calendar month shall be paid not more than thirty (30) days after the end of
such month. CompleteHome shall provide Century 21 with each such payment a
report, certified as true and correct by a duly authorized representative of
CompleteHome, detailing the advertising revenues generated by CompleteHome and
the calculation of the commissions paid thereon.
(b)(ii) From time to time during the Term (but no more than one (1)
time in any calendar quarter), CompleteHome or Century 21 may, upon written
notice to the other party, initiate a review to determine an equitable increase,
if any, in the rate of commission payable on Net Advertising Revenues in effect
as of the date on which notice is issued. Among other aspects to be considered
in making such determination, the parties will review the overall performance of
the System web site; increases or decreases in the volume of System Listings
posted on the System web site; increases, if any, in the commission rates
payable to CompleteHome by third party advertisers for the placement of
advertising; rates of commission due to web site owners or operators generally
recognized throughout the Internet industry; and any other pertinent information
provided by the parties. In the event that it is determined by the parties that
an increase is warranted based on the totality of the circumstances, then such
increase shall become effective immediately upon such determination without the
necessity of further notice. In the event that it is determined that an increase
is not warranted based on the totality of the circumstances (or, despite each
party's good faith efforts, the parties are unable to reach agreement as to an
increase in the rate of commission), then the rate of commission in effect as of
the date of the notice shall remain in effect and unchanged.
(c) Web Site Management Service Fees. (i) In consideration for
CompleteHome's management of certain maintenance and support services with
respect to the System web site and subject to subsection (c)(ii) below, Century
21 shall pay to CompleteHome a service fee (the "Service Fee") based on the
actual savings realized under the agreements with Third Party Providers to the
extent such savings are attributable to CompleteHome. The Service Fee payable to
CompleteHome with respect to the actual savings realized in each calendar month
shall be paid by Century 21 not more than thirty (30) days after the end of such
month. CompleteHome shall provide Century 21 at the conclusion of each calendar
month an invoice for the Service Fee, if any, together with a consolidated,
monthly invoice with respect to the payments made to Third Party
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Providers by CompleteHome for such period and any other related information
reasonably requested by Century 21. Payment of the invoices shall be remitted to
CompleteHome by Century 21 within thirty (30) days after the receipt of the
invoices.
(c)(ii) For the purpose of calculating the actual savings attributable
to CompleteHome's management and support services, the parties acknowledge that
from time to time during the Term CompleteHome and the Third Party Providers may
modify the commercial terms (e.g. scope, pricing elements) of the agreements
with the Third Party Providers or may renew or extend such agreements. In the
event of a modification or renewal of an agreement with a Third Party Provider,
CompleteHome and Century 21 shall cooperate with each other, in good faith, to
determine the price Century 21 would have paid with respect to the scope of the
services offered thereunder at the time of the modification of the commercial
terms or renewal (or extension) of the agreement (or execution of the agreement
with the service provider other than a Third Party Provider) (the "Fair Market
Value"). The Service Fee shall be the lesser of the following amounts (y) the
difference between the Fair Market Value and the actual billings OR (z) six
percent (6%) of the Fair Market Value.
Section 5. Exclusivity. During the Term, Century 21 agrees that it
shall not furnish the System Listings to any third party provider or operator of
an Internet portal (in the capacity of aggregating or displaying such real
estate listings for online dissemination) other than CompleteHome; provided,
however that such restriction shall not limit or pertain to any commitments or
obligations existing as of the date of this Agreement to provide the System
Listings to a third party provider or operator of an Internet portal (in the
capacity of aggregating or displaying such real estate listings for online
dissemination) and further provided that nothing in this Section 5 shall limit
or otherwise affect Century 21 from utilizing the System Listings in any manner
in connection with the System web site. With respect to any obligations or
commitments existing as of the date of this Agreement to provide System Listings
to a third party provider or operator of an Internet portal, Century 21 hereby
agrees not to extend or renew any such obligations or commitments.
Section 6. Indemnity/Limitation of Liability. (a) CompleteHome shall
indemnify and hold harmless Century 21 and its affiliates, officers, directors,
employees, agents, successors and assigns from any claims, damages, liabilities,
losses, government procedures and costs, including reasonable attorneys' fees
and costs of suit, arising from any third party claims for (i) CompleteHome's or
its employees' or agents' failure to comply with applicable laws and
regulations, negligence or willful misconduct in connection with the performance
of this Agreement, or misrepresentation, or breach of any warranty, obligation
or covenant of this Agreement and (ii) libel, slander or defamation or violation
(or misappropriation) of intellectual property rights, privacy rights, publicity
rights or similar rights arising from any content or advertising placed or
displayed on the System web site, Internet Portal or other approved web site
only to the extent that such content or advertising is furnished by
CompleteHome. In no event shall the indemnity obligation set forth in this
subsection (a) apply to any information (including content) furnished to
CompleteHome by Century 21.
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(b) Century 21 shall indemnify and hold harmless CompleteHome and its
affiliates, officers, directors, employees, agents, successors and assigns from
any claims, damages, liabilities, losses, government procedures and costs,
including reasonable attorneys' fees and costs of suit, arising from third party
claims for (i) Century 21's or its employees' or agents' failure to comply with
applicable laws and regulations, negligence or willful misconduct in connection
with the performance of this Agreement, misrepresentation or breach of any
warranty, obligation or covenant of this Agreement and (ii) libel, slander or
defamation or violation (or misappropriation) of intellectual property rights,
privacy rights, publicity rights or similar rights arising from any content or
advertising placed or displayed on the System web site, Internet Portal or other
approved web site only to the extent that such content or advertising is
furnished by Century 21. In no event shall the indemnity obligation set forth in
this subsection (b) apply to or include the acts or omissions of any broker or
agent of the System or apply to any information (including content) furnished to
Century 21 by CompleteHome.
(c) In the event that the indemnified party is required to respond to
any claim, action, demand or proceeding, the indemnifying party will, upon
reasonable notification, respond and defend the indemnified party against such
claims and demands in any such actions or proceedings pursuant to its indemnity
obligations under this Section 6. In the event that the indemnifying party fails
to defend the indemnified party, the indemnifying party will reimburse the
indemnified party for all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by the indemnified party.
(d) Neither party shall be responsible to the other for any indirect,
special or consequential damages under any tort including lost profits or
interruption of business (regardless of whether a party has been advised of the
possibility of or could have foreseen such damages). Notwithstanding the
foregoing, the limitation of liability provided under this subsection (d) shall
not apply with respect to (i) third party claims and/or (ii) the willful
misconduct or gross negligence of a party.
(e) This Section 6 and the rights, remedies, obligations and
limitations of the parties under such Section shall survive termination or
expiration of this Agreement.
Section 7. Books and Records; Audit. CompleteHome shall use
commercially reasonable efforts to keep accurate and complete records of the
revenues generated by CompleteHome in connection with this Agreement and the
System (including without limitation, the Ancillary Services Revenues and Net
Advertising Revenues) together with invoices and other payment information
relating to CompleteHome's management of the maintenance and support service
agreements. All such records shall be available for inspection and audit by
Century 21 or its representatives on reasonable notice to CompleteHome during
normal business hours throughout the Term of this Agreement and for one (1) year
thereafter. CompleteHome shall reasonably cooperate with Century 21 in such
inspection and audit. In the event any such inspection or audit establishes an
underpayment of commissions, CompleteHome shall pay the amount of the deficit
within fifteen (15) days after notification of such deficiency. In the event
such audit identifies an overpayment of commissions, such overpayment shall be
reconciled against future commissions to become due from CompleteHome to
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Century 21 or, if it is determined that future commissions will not become due,
Century 21 will remit payment in the amount of the overage within fifteen (15)
days from such determination.
Section 8. Acknowledgments. (a) CompleteHome acknowledges that Century
21 is a franchisor and not the owner or operator of real estate brokerage
offices and that, as such, Century 21 cannot compel or guarantee any level of
participation of the franchisees (including brokers and agents) of the System
with CompleteHome or any other third party. Further, despite the recommendation
and promotion of CompleteHome by Century 21, CompleteHome acknowledges that the
brokers and agents of the System may enter into and maintain agreements or
arrangements with third parties which may include listing agreements and
marketing agreements. In no event shall any such agreements or arrangements
entered into by the brokers or agents of the System be construed to be a
violation of the terms of this Agreement, including any obligations or
limitations of Century 21 hereunder. Century 21 shall not be responsible for any
amounts or obligations owed to CompleteHome by any brokers or agents of the
System.
(b) For the purpose of this Agreement, the phrases "affiliates of
Century 21" or "Century 21's affiliates" shall not include the franchisees
(brokers and agents) of the System.
(c) The parties acknowledge that, as of the date of this Agreement,
Century 21's and America Online, Inc. ("AOL") have entered into an Information
Provider Agreement dated January 5, 1996 (the "AOL Agreement") whereby AOL
supports and distributes on an exclusive basis two Online Areas for Century 21's
on the AOL Network. With respect to the AOL Agreement, CompleteHome will conduct
CompleteHome business and operations in connection with this Agreement in a
manner which will not interfere or conflict with AOL's and Century 21's rights
and obligations under the AOL Agreement, as may be amended. Century 21 will
cooperate with CompleteHome, in good faith, to discuss the applicable parameters
under the AOL Agreement, subject to the non-disclosure provisions therein, if
any, and the limitations or restrictions on CompleteHome in providing services
to Century 21 under this Agreement.
Section 9. Termination/Force Majeure. (a) When fully executed, this
Agreement will constitute a binding obligation of both parties which may not be
terminated by either party except that either party may terminate this Agreement
(in whole or in part) in the event of a material breach of the terms of this
Agreement by the other party. In the event of a material breach as set forth
above, the breaching party shall be given written notice of such breach and the
opportunity to cure such breach within thirty (30) days of the date of such
notice (ten (10) days in the case of a payment default). In the event the
breaching party fails to cure such breach within the applicable period stated
above, the other party shall have the right to immediately terminate this
Agreement upon written notice to the breaching party.
(b) In no event shall either party be liable to the other party for any
delay or failure to perform hereunder, which delay or failure to perform is due
to causes beyond the reasonable control of said party, including, but not
limited to, acts of God; acts of the public enemy; acts of the United States, or
any state, territory or political
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division of the United States of America, or of the District of Columbia; acts
of a judiciary or legislative body; fires; floods; epidemics; quarantine
restrictions; strikes or any other labor disputes; and freight embargoes;
provided, however, that the delay or failure to perform was not be caused by the
negligent acts of the non-performing party and that the non-performing party
acts with due diligence to mitigate any such delays in its failure to perform.
Section 10. Representations. (a) Each party has full power and
authority and has been duly authorized, to enter into and perform its
obligations under this Agreement, all necessary approvals of any Board of
Directors, shareholders, partners, co-tenants and lenders having been obtained.
The execution, delivery and performance of this Agreement by each party will not
violate, create a default under or breach of any charter, bylaws, agreement or
other contract, license, permit, indebtedness, certificate, order, decree or
security instrument to which such party or any of its principals is a party or
is subject. Neither party is the subject of any current or pending dissolution,
receivership, bankruptcy, reorganization, insolvency, or similar proceeding on
the date this Agreement is executed by such party and was not within the three
(3) years proceeding such date. The persons signing this Agreement on behalf of
each party are authorized to execute this Agreement for and on behalf of such
party and have full authority to so bind such party.
(b) CompleteHome and Century 21 will comply with all applicable local,
state and federal laws and regulations in connection with the performance of
their respective obligations under this Agreement.
Section 11. Trademarks/Artwork. (a) Except as specifically provided in
this Agreement, CompleteHome specifically acknowledges that this Agreement does
not confer upon CompleteHome any interest in or right to use any trademark,
service mark or other intellectual property right of Century 21 or its
affiliates (the "Century 21 Intellectual Property Rights") in connection with
this Agreement unless CompleteHome receives the prior written consent of Century
21. CompleteHome further agrees that upon termination or expiration of this
Agreement, CompleteHome shall immediately cease and discontinue all use of the
Century 21 Intellectual Property Rights. Further, if CompleteHome wishes to
utilize the Century 21 Intellectual Property Rights in advertising or
promotional materials, it must submit such materials to Century 21 for final
approval before utilizing them. In no event may CompleteHome or any affiliated
or associated person or entity utilize the Century 21 Intellectual Property
Rights for any purpose other than in connection with this Agreement.
CompleteHome agrees to comply with all requests of Century 21 with respect to
the appearance and use of the Century 21 Intellectual Property Rights, including
without limitation, any requests to change the form or style of the Century 21
Intellectual Property Rights and shall at all times consistently use the Century
21 Intellectual Property Rights so as to ensure that Century 21's rights are
adequately preserved. Century 21 reserves the right from time to time to require
changes to the Century 21 Intellectual Property Rights upon thirty (30) days
prior written notice to CompleteHome.
(b) Except as specifically provided in this Agreement, Century 21
specifically acknowledges that this Agreement does not confer upon Century 21
any interest in or right to use any trademark, service mark or other
intellectual property right of
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CompleteHome or its affiliates (the "CompleteHome Intellectual Property Rights")
in connection with this Agreement unless Century 21 receives the prior written
consent of CompleteHome. Century 21 further agrees that upon termination or
expiration of this Agreement, Century 21 shall immediately cease and discontinue
all use of the CompleteHome Intellectual Property Rights. Further, if Century 21
wishes to utilize the CompleteHome Intellectual Property Rights in advertising
or promotional materials, it must submit such materials to CompleteHome for
final approval before utilizing them. In no event may Century 21 or any
affiliated or associated person or entity utilize the CompleteHome Intellectual
Property Rights for any purpose other than in connection this Agreement. Century
21 agrees to comply with all requests of CompleteHome with respect to the
appearance and use of the CompleteHome Intellectual Property Rights, including
without limitation, any request to change the form or style of the CompleteHome
Intellectual Property Rights and shall at all times consistently use the
CompleteHome Intellectual property Rights so as to ensure that CompleteHome's
rights are adequately preserved. CompleteHome reserves the right from time to
time to require changes to the CompleteHome Intellectual Property Rights upon
thirty (30) days prior written notice to Century 21.
Section 12. Relationship of Parties. The relationship between
CompleteHome and Century 21 is one of an independent contractor. Neither party
is the legal representative or agent of, or has the power to obligate (or has
the right to direct or supervise the daily affairs of) the other or any other
party for any purpose whatsoever. CompleteHome and Century 21 expressly
acknowledge that the relationship intended by them is a business relationship
based entirely on and circumscribed by the express provisions of this Agreement
and that no partnership, joint venture, agency, fiduciary or employment
relationship is intended or created by reason of this Agreement.
Section 13. Assignments. This Agreement may not be assigned by either
party without the prior written consent of the non-assigning party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
either party may assign this Agreement without the consent of the other party to
an affiliate or in connection with a merger, consolidation or a sale of
substantially all of its assets. This Agreement and the covenants and agreements
herein contained shall, subject to the provisions of this Section, inure to the
benefit of and be binding on the parties hereto and their respective permitted
successors and assigns.
Section 14. Confidentiality. (a) CompleteHome acknowledges that any
information conveyed to or obtained by CompleteHome regarding Century 21, its
business plans and operations in connection with this Agreement is confidential
and proprietary to Century 21 (the "Century 21 Confidential Information").
CompleteHome agrees that in no event shall CompleteHome disclose, transfer,
copy, duplicate, or publish any Century 21 Confidential Information to any third
party without the prior written consent of CompleteHome, which consent may be
withheld in Century 21's sole discretion. CompleteHome further agrees that it
shall not utilize any Century 21 Confidential Information for any purpose
whatsoever other than for the purpose of performing its obligations under this
Agreement. CompleteHome shall only make available the Century 21 Confidential
Information to its employees on a need-to-know basis and shall advise such
employees of the restriction set forth with respect to the use of such Century
21 Confidential Information. CompleteHome shall be responsible
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for the unauthorized disclosure of any Century 21 Confidential Information by
its employees.
(b) Century 21 acknowledges that any information conveyed to or
obtained by Century 21 regarding CompleteHome, its business, plans and
operations in connection with this Agreement is confidential and proprietary to
CompleteHome (the "CompleteHome Confidential Information"). Century 21 agrees
that in no event shall Century 21 disclose, transfer, copy, duplicate, or
publish any CompleteHome Confidential Information to any third party without the
prior written consent of CompleteHome, which consent may be withheld in
CompleteHome's sole discretion. Century 21 further agrees that it shall not
utilize any CompleteHome Confidential Information for any purpose whatsoever
other than for the purpose of performing its obligations under this Agreement.
Century 21 shall only make available the CompleteHome Confidential Information
to its employees on a need-to-know basis and shall advise such employees of the
restriction set forth with respect to the use of such CompleteHome Confidential
Information. Century 21 shall be responsible for the unauthorized disclosure of
any CompleteHome Confidential Information by its employees.
(c) The non-disclosure restrictions set forth in this Section 14 shall
not apply to information which (i) is or becomes generally available to the
public other than as a result of a disclosure by the receiving party; (ii) was
within the receiving party's possession prior to its being furnished by the
originating party, provided that the source of such information was not known by
the receiving party to be bound by a confidentiality agreement or non-disclosure
restrictions with respect to such information; or (iii) becomes available to the
receiving party on a nonconfidential basis from a source other than the
originating party, provided that the source of such information was not known by
the receiving party to be bound by a confidentiality agreement or non-disclosure
restrictions with respect to such information. With respect to disclosures of
the Century 21 Confidential Information or CompleteHome Confidential Information
as may be required by law or court order, such disclosures shall be permitted
without the consent of the originating party provided that the disclosing party
furnishes the originating party prior written notification (as soon as
practicably possible after the request for disclosure is made). Upon the
termination of this Agreement or upon the earlier written request by the
originating party, the receiving party shall return the Century 21 Confidential
Information and CompleteHome Confidential Information (as the case may be) to
the originating party including any copies relating thereto on whatever media
(or alternatively destroy such information if so instructed by the originating
party).
(d) The parties acknowledge that Century 21 Confidential Information
and CompleteHome Confidential Information, respectively, is a valuable asset of
the originating party, the disclosure of which would cause the originating party
irreparable harm for which there is no adequate remedy at law. Accordingly, in
the event of a breach or alleged breach of this Section 14, the originating
party or parties shall be allowed injunctive relief and any other equitable
remedies in addition to remedies afforded by law. The obligations of each party
pursuant to this Section 14 shall survive the termination or expiration of this
Agreement.
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Section 15. Partial Invalidity. Should any part of this Agreement, for
any reason, be declared invalid, such decision shall not affect the validity of
any remaining portion of this Agreement.
Section 16. No Waiver. No failure or delay in requiring strict
compliance with any obligation of this Agreement (or in the exercise of any
right or remedy provided herein) and no custom or practice at variance with the
requirements hereof shall constitute a waiver or modification of any such
obligation, requirement, right or remedy or preclude exercise of any such right
or remedy or the right to require strict compliance with any obligation set
forth herein. No waiver of any particular default or any right or remedy with
respect to such default shall preclude, affect or impair enforcement of any
right or remedy provided herein with respect to any subsequent default. No
approval or consent of either party shall be effective unless in writing and
signed by an authorized representative of such party, and such party's consent
or approval may be withheld for so long as the other party is in default of any
of its obligations under this Agreement.
Section 17. Notices. Notices will be effective hereunder when and only
when they are reduced to writing and delivered, by next day delivery service,
with proof of delivery, or mailed by certified or registered mail, return
receipt requested, to the appropriate party at its address stated below or to
such person and at such address as may be designated by notice hereunder.
Notices shall be deemed given on the date delivered or date of attempted
delivery, if service is refused.
CompleteHome: Century 21:
------------- -----------
CompleteHome. Operations, Inc. Century 21 Real Estate Corporation
200 Vallejo Street 6 Sylvan Way
San Francisco, California 94111 Parsippany, New Jersey 07054
Attn: President Attn: President
Section 18. Publicity. Each party shall (a) submit to the other party
all advertising, written sales promotions, press releases, and other publicity
matters relating to this Agreement in which the other party's name or mark is
mentioned or which contains language from which a relationship with the other
party may be inferred or implied and (b) not publish or use such advertising,
sales promotions, press releases or publicity matters without the other party's
consent.
Section 19. Miscellaneous. The remedies provided in this Agreement are
not exclusive. This Agreement will be construed in accordance with the laws of
the State of New Jersey, except for New Jersey's conflict of laws principles.
The parties consent to District Court for the District of New Jersey and further
waive objection to venue in any such court. This Agreement is exclusively for
the benefit of the parties hereto and may not give rise to liability to a third
party. No agreement between CompleteHome or Century 21 and anyone else is for
the benefit of the other party. Neither party will interfere with contractual
relations of the other. The section headings in this Agreement are for
convenience of reference only and will not affect its interpretation.
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This Agreement, together with all instruments, exhibits, attachments
and schedules hereto, constitutes the entire agreement (superseding all prior
agreements and understanding, oral or written) of the parties hereto with
respect to the subject matter hereof and shall not be modified or amended in any
respect unless in writing executed by all such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
COMPLETEHOME OPERATIONS, INC. CENTURY 21 REAL
ESTATE CORPORATION
By: /S/ Sarah Nolan By: /S/ Robert Moles
------------------------------- --------------------------------
Name: Sarah Nolan Name: Robert Moles
----------------------------- ------------------------------
Title: CEO Title: President & CEO
---------------------------- -----------------------------
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EXHIBIT A
THIRD PARTY/INDUSTRY ADVERTISING RESTRICTIONS
The following list identifies the applicable advertising restrictions
on CompleteHome in the placing advertising on the System web site. In general,
the prohibited advertising is classified either on a "third party advertiser
basis" or "industry basis."
- - Residential real estate brokerage system or agencies (other than
businesses or operations relating to Century 21)
- - Advertising relating to residential mortgage service providers
- - Corporate relocation providers
- - Vehicle rental systems or agencies