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 Coldwell Banker Real Estate
Corporation ("Coldwell Banker"), a California corporation with an office located
at 6 Sylvan Way, Parsippany, New Jersey 07054.
W I T N E S S E T H:
WHEREAS, Coldwell Banker is the franchisor of the Coldwell Banker(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 Coldwell Banker 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
Coldwell Banker's franchisees (the "Listings") contained on the System web site
operated by Coldwell Banker ("System Listings") on the Internet Portal and,
subject to the prior written approval of Coldwell Banker, 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 Coldwell Banker (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 Coldwell Banker 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 Coldwell Banker. 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 Coldwell
Banker, 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 Coldwell Banker, 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 Coldwell Banker, 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 Coldwell Banker.
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
Coldwell Banker or any affiliate of Coldwell Banker.
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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)
Coldwell Banker 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 Coldwell Banker 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 Coldwell Banker 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 Coldwell Banker, CompleteHome shall make
available to Coldwell Banker 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 Coldwell Banker, 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, Coldwell Banker 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 Coldwell Banker 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"). Coldwell Banker shall promptly undertake to assign to
CompleteHome the agreements with Third Party Providers for such maintenance and
support services. CompleteHome will, in cooperation with Coldwell Banker,
contact Third Party Providers to notify Third Party Providers of the appointment
of CompleteHome under this subsection (f) and each of Coldwell Banker 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 Coldwell Banker. 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 Coldwell Banker to
any provider of maintenance and support services for the System web site without
the prior written consent of Coldwell Banker or (ii) to modify the terms of the
agreements (or terminate such agreements) with Third Party Providers whereby
such modifications would not be
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in the best interest of Coldwell Banker, including without limitation, reducing
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 Coldwell Banker 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 Coldwell Banker, at no cost to
Coldwell Banker, with respect to Coldwell Banker'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 Coldwell Banker. Coldwell Banker expressly reserves the right to
approve in advance any work product, advertising campaign, project or other
materials submitted by CompleteHome to Coldwell Banker 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 Coldwell Banker
shall be solely responsible for the accuracy, completeness and propriety of any
and all information furnished to CompleteHome by Coldwell Banker (or on Coldwell
Banker'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 Coldwell Banker'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 Coldwell
Banker'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 Coldwell Banker 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
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the Term) (the "Period"), Coldwell Banker shall have the right to cause
CompleteHome to place, in Coldwell Banker's discretion, third party
advertisements on the System web site (the "Allotted Ads"); provided, however,
that in no event shall the total number of Coldwell Banker-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 Coldwell Banker 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 Coldwell Banker 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
Coldwell Banker, would be a violation of any marketing agreement (or similar
arrangement) to which Coldwell Banker (or an affiliate of Coldwell Banker) is a
party in effect as of the date of this Agreement. If, in the judgment of
Coldwell Banker, the placement of any advertising by CompleteHome would be
considered a violation of any marketing agreement (or similar arrangement)
entered into by Coldwell Banker (or an affiliate of Coldwell Banker), then
Coldwell Banker 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 Coldwell Banker to ensure that Coldwell
Banker (or the applicable affiliate of Coldwell Banker) 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
Coldwell Banker or any Coldwell Banker's affiliates. During the Term,
CompleteHome agrees to provide Coldwell Banker 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 Coldwell Banker'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. Coldwell Banker 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 Coldwell Banker's objection to the
advertiser within the stated deadline, then Coldwell Banker'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 Coldwell Banker. Such web site shall be provided to Coldwell Banker
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, Coldwell
Banker may modify Exhibit A by adding or deleting third parties or industries as
the case may be.
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(h) CompleteHome shall serve as the non-exclusive advertising placement
consultant for Coldwell Banker for the purpose of the placement of Internet
general advertising on behalf of Coldwell Banker and the System. CompleteHome
shall offer and provide assistance (e.g. advice, recommendations, strategies and
other pertinent information) to Coldwell Banker, at no cost to Coldwell Banker,
with respect to Coldwell Banker's the 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 Coldwell Banker'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 Coldwell Banker's commitment to any third party
relating thereto, including without limitation, any commitment with a third
party to serve as Coldwell Banker'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 Coldwell Banker (the "Coldwell
Banker Marks") on the section(s) of the Internet Portal designated for the
System Listings and/or the System. Placement and identification of the Coldwell
Banker 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 Coldwell Banker or the System. Further, CompleteHome
shall provide Coldwell Banker, 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 Coldwell
Banker. 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 Coldwell Banker, 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 Coldwell Banker 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 Coldwell
Banker in performing CompleteHome's obligations under this Agreement.
Section 3. Coldwell Banker Obligations. (a) During the Term, Coldwell
Banker shall provide to CompleteHome System Listings which are made available to
Coldwell
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Banker by or through the brokers of the System. In providing the System
Listings, Coldwell Banker 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 property descriptions
and broker/agent information and data (and changes in such information) shall be
provided daily, via electronic means, from Coldwell Banker to CompleteHome. The
format of such information and the particular time of transfer of the
information shall be mutually agreed by the parties. Although Coldwell Banker
does not guarantee the accuracy of the information furnished to CompleteHome,
Coldwell Banker shall use commercially reasonable efforts to ensure that such
information is an accurate and complete reflection of the information provided
by the brokers to Coldwell Banker as of the date of the transfer to
CompleteHome. Coldwell Banker will promptly notify CompleteHome of any
incomplete or inaccurate information discovered by Coldwell Banker so that
CompleteHome may issue an updated version of the information.
(b) Coldwell Banker 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. Coldwell Banker 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 Coldwell Banker, Coldwell
Banker will not be responsible to provide any financial assistance to
CompleteHome pursuant to this subsection (b).
(c) From time to time, Coldwell Banker shall submit to CompleteHome for
display on the Internet Portal various System-specific information, data and
content prepared by or through Coldwell Banker for the System web site. As such
information, data and content is considered by Coldwell Banker 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 Coldwell Banker 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) Coldwell Banker'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 Coldwell Banker
information, data and content shall remain the property of Coldwell Banker;
provided, however, that CompleteHome shall have,
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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, Coldwell Banker 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 placed on the System web site, Coldwell Banker
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) Coldwell Banker agrees to reference CompleteHome and/or its
affiliation with Coldwell Banker and the System in all of Coldwell Banker'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 Coldwell Banker 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, Coldwell Banker and CompleteHome shall
meet to review Coldwell Banker'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, Coldwell Banker 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 Coldwell Banker'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 Coldwell Banker 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 Coldwell Banker 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 Coldwell Banker with each payment made
to Coldwell Banker 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
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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 Coldwell Banker 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 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
Coldwell Banker 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
Coldwell Banker 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 Coldwell Banker 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 Coldwell Banker 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.
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(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, Coldwell
Banker 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 Coldwell Banker not more than thirty (30) days after the end of
such month. CompleteHome shall provide Coldwell Banker 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
Providers by CompleteHome for such period and any other related information
reasonably requested by Coldwell Banker. Payment of the invoices shall be
remitted to CompleteHome by Coldwell Banker 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 Coldwell Banker shall cooperate with each other, in good faith,
to determine the price Coldwell Banker 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, Coldwell Banker 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 Coldwell Banker 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, Coldwell
Banker 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 Coldwell Banker 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,
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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 Coldwell Banker.
(b) Coldwell Banker 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) Coldwell Banker'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 Coldwell Banker. 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 Coldwell Banker 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
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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 Coldwell Banker 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 Coldwell Banker 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 Coldwell Banker
or, if it is determined that future commissions will not become due, Coldwell
Banker will remit payment in the amount of the overage within fifteen (15) days
from such determination.
Section 8. Acknowledgments. (a) CompleteHome acknowledges that Coldwell
Banker is a franchisor and not the owner or operator of real estate brokerage
offices and that, as such, Coldwell Banker 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 Coldwell Banker, 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 Coldwell Banker hereunder. Coldwell Banker 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
Coldwell Banker" or "Coldwell Banker's affiliates" shall not include the
franchisees (brokers and agents) of the System.
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 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
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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 Coldwell Banker 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 Coldwell Banker or its
affiliates (the "Coldwell Banker Intellectual Property Rights") in connection
with this Agreement unless CompleteHome receives the prior written consent of
Coldwell Banker. CompleteHome further agrees that upon termination or expiration
of this Agreement, CompleteHome shall immediately cease and discontinue all use
of the Coldwell Banker Intellectual Property Rights. Further, if CompleteHome
wishes to utilize the Coldwell Banker Intellectual Property Rights in
advertising or promotional materials, it must submit such materials to Coldwell
Banker for final approval before utilizing them. In no event may CompleteHome or
any affiliated or associated person or entity utilize the Coldwell Banker
Intellectual Property Rights for any purpose other than in connection with this
Agreement. CompleteHome agrees to comply with all requests of Coldwell Banker
with respect to the appearance and use of the Coldwell Banker Intellectual
Property Rights, including without limitation, any requests to change the form
or style of the Coldwell Banker Intellectual Property Rights and shall at all
times consistently use the Coldwell Banker Intellectual Property Rights so as to
ensure that Coldwell Banker's rights are adequately preserved. Coldwell Banker
reserves the right from time to time to require changes to the Coldwell Banker
Intellectual Property Rights upon thirty (30) days prior written notice to
CompleteHome.
(b) Except as specifically provided in this Agreement, Coldwell Banker
specifically acknowledges that this Agreement does not confer upon Coldwell
Banker any interest in or right to use any trademark, service mark or other
intellectual property right of CompleteHome or its affiliates (the "CompleteHome
Intellectual
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Property Rights") in connection with this Agreement unless Coldwell Banker
receives the prior written consent of CompleteHome. Coldwell Banker further
agrees that upon termination or expiration of this Agreement, Coldwell Banker
shall immediately cease and discontinue all use of the CompleteHome Intellectual
Property Rights. Further, if Coldwell Banker 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 Coldwell Banker or any affiliated or associated person or entity
utilize the CompleteHome Intellectual Property Rights for any purpose other than
in connection this Agreement. Coldwell Banker 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 Coldwell Banker.
Section 12. Relationship of Parties. The relationship between
CompleteHome and Coldwell Banker 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 Coldwell Banker
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 Coldwell Banker,
its business plans and operations in connection with this Agreement is
confidential and proprietary to Coldwell Banker (the "Coldwell Banker
Confidential Information"). CompleteHome agrees that in no event shall
CompleteHome disclose, transfer, copy, duplicate, or publish any Coldwell Banker
Confidential Information to any third party without the prior written consent of
CompleteHome, which consent may be withheld in Coldwell Banker's sole
discretion. CompleteHome further agrees that it shall not utilize any Coldwell
Banker Confidential Information for any purpose whatsoever other than for the
purpose of performing its obligations under this Agreement. CompleteHome shall
only make available the Coldwell Banker Confidential Information to its
employees on a need-to-know basis and shall advise such employees
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of the restriction set forth with respect to the use of such Coldwell Banker
Confidential Information. CompleteHome shall be responsible for the unauthorized
disclosure of any Coldwell Banker Confidential Information by its employees.
(b) Coldwell Banker acknowledges that any information conveyed to or
obtained by Coldwell Banker regarding CompleteHome, its business, plans and
operations in connection with this Agreement is confidential and proprietary to
CompleteHome (the "CompleteHome Confidential Information"). Coldwell Banker
agrees that in no event shall Coldwell Banker 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. Coldwell Banker 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. Coldwell Banker 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. Coldwell Banker 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 Coldwell Banker 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 Coldwell Banker
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 Coldwell Banker 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: Coldwell Banker:
------------- ----------------
CompleteHome Operations, Inc. Coldwell Banker 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 Coldwell Banker 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. COLDWELL BANKER REAL
ESTATE CORPORATION
By: /S/ Sarah Nolan By: /S/ Alex Perriello
-------------------------- -------------------------------
Name: Sarah Nolan Name: Alex Perriello
------------------------ -----------------------------
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 Coldwell Banker)
- - Advertising relating to residential mortgage service providers
- - Corporate relocation providers
- - Vehicle rental systems or agencies