INTERNET COOPERATION AGREEMENT
THIS INTERNET COOPERATION AGREEMENT (the "Agreement") is entered into
this 30th day of September 1999 by and between COMPLETEHOME.COM, INC.
("Company"), a Delaware corporation with an office located at 200 Vallejo
Street, San Francisco, California 94111 and GETKO GROUP, INC. ("Getko"), a
Delaware corporation with an office located at 115 South Service Street,
Westbury, New York 11590.
W I T N E S S E T H:
WHEREAS, Getko, through its Welcome Wagon division, provides local
merchants ("Merchants") with a direct mail directory through which Merchants
advertise their products and services and provide discount gift certificates to
homeowners (the "Offline Product") and, through its Getko Direct Response
division, provides list management services; and
WHEREAS, Company is a provider of, among other things, a residential
real estate services portal (the "Internet Portal") which provides information
and resources for consumers before, during and after a relocation through
internet Web Sites maintained by Company and its Affiliates; and
WHEREAS, Company and Getko 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. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "Affiliate" shall mean an entity controlled by, controlling or
under common control with Company and/or Getko, as applicable.
(b) "Coupon" shall mean a document containing the Merchant Offering
that may be downloaded by a Visitor from the Online Area. Unless otherwise
agreed to by the parties, Coupons will provide identical discounts as the
Merchant Offering contained in the Offline Product. The appearance of the Coupon
shall be identical in form and substance to the discount gift certificates
distributed through the Offline Product.
(c) "Link" shall mean the electronic functionality located on a Web
Site that may take the form of a colored item of text (such as a URL
description), logo or image, and which allows a Visitor to automatically move to
or between World Wide Web ("WWW") pages, WWW sites or within a WWW document.
(d) "Merchant Offering" shall mean the discounts off the retail price
of a Merchant's product(s) and/or service(s) that are provided through the
Offline Product and/or the Online Product (defined below).
(e) Online Area" shall mean the specific areas within the Internet
Portal which shall be developed, managed and marketed by Company pursuant to
this Agreement on which the Merchant Offerings and promotional information shall
be displayed and from which Coupons for the Merchant Offerings can be
downloaded. The Online Area shall permit a Visitor to access Merchants based on
postal zip codes or specific geographic locations and to download Coupons.
(f) "Registration Information" shall mean information provided by a
Visitor who wishes to obtain Coupon(s), including, without limitation the
Visitor's full name and e-mail address and such other information as may be
reasonably requested by Company.
(g) "Visitor" shall mean any potential customer who has interactively
arrived at a web page by entering the URL or hyperlinking.
(h) "Web Site" shall mean a party's multi-media, interactive computer
program designed to run on the WWW section of the Internet (including all the
information displayed thereby and thereon).
Section 2. Term. The term of this Agreement (the "Term") shall commence
on September 30, 1999 and shall terminate on December 31, 2039, unless earlier
terminated in accordance with the terms herein set forth.
Section 3. Company Obligations. (a) During the Term, Company shall
develop and maintain the Online Area, at Company's sole cost, for the purpose of
promoting the Merchant Offerings, for Merchants with whom Getko maintains an
agreement for such advertising, and which will permit Visitors to obtain Coupons
to be redeemed by the Visitor at a Merchant's place of business, unless
otherwise specified on the Coupon. Company shall provide Visitors access to the
Online Area through Links from Web Sites operated by Company and its Affiliates
through the Internet Portal, as designated by Company in its sole discretion. In
the event Company is no longer controlled by, controlling or under common
control with Cendant Corporation, Company shall be required to obtain the prior
written approval of Getko prior to providing access to the Online Area through
Links from Web Sites operated by any party, including Affiliates of Company,
other than Company, such approval not to be unreasonably withheld. After the
first six (6) months of this Agreement, the parties may mutually agree to
provide access to the Online Area through Links from unaffiliated third parties'
Web Sites. In no event shall access to the Online Area from a third party Web
Site be permitted unless such third party Web Sites are being generated from
Company servers. Company shall provide Internet traffic access to the Online
Area at no cost to the Visitors. 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, with such parties acting
reasonably and in good faith. Company shall provide Getko with unrestricted
access to view the Online Area at no cost.
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(b) Company shall develop and implement, at its sole cost, a
registration system that will require each Visitor to the Online Area who wishes
to download a Coupon to register through Company's server by providing
Registration Information. This registration system shall also be utilized to
prohibit a Visitor from downloading more than one (1) Coupon per Merchant
through the use of a tracking mechanism that will not permit more than one (1)
download from the same Visitor accessed computer. Each Coupon shall include the
Visitor's name, a tracking number and the terms and conditions for use of the
Coupon. Company makes no guarantee that a Visitor will not replicate or obtain
more than one (1) Coupon for a particular Merchant and Company shall not be
responsible for any multiple use of a Coupon by a Visitor.
(c) Company, in cooperation with Getko, shall use commercially
reasonable efforts to promote the Online Area to potential Visitors. Any and all
marketing activities performed by Company to promote the Online Area shall be at
Company's cost and expense. Subject to Section 12 below, Company shall place the
trademarks, logos or other identifying marks of Getko (the "Getko Marks"), as
may be approved by Getko, on the Online Area section(s) of the Internet Portal
designated for advertising the Online Area and the Coupons. Placement and
identification of the Getko Marks shall be at least as prominent as the
placement and identification of any other similar company in the Web Site pages
of the Internet Portal or other locations on the Internet Portal where such
companies are collectively displayed. In no event shall Company (i) state or
imply a preference for a particular company over Getko, or (ii) place any other
merchant offerings and/or coupons or similar type of program or product on the
Online Area utilized to display Getko's Merchant Offerings and/or Coupons.
Notwithstanding the foregoing, Company shall be permitted to display banner
advertisements on the Online Area, provided, however that in the event there are
banner advertisements for non-Getko local merchants and retailers displayed on
the Online Area, Company must display a notification to Visitors that such
merchants are not Getko Welcome Wagon Merchants.
(d) Company will implement and maintain during the Term a system to
track and record Internet traffic to the Online Area on a "per postal zipcode"
and "per Merchant" basis. For each calendar month during the Term, Company shall
furnish a detailed report to Getko, via electronic means, in a format and
containing such information as may be mutually agreed to by the parties,
including, but not limited to the total number of Visitors who accessed the
Online Area, the total number of Visitors who viewed a particular Merchant, the
total number of Coupons downloaded and a breakdown of the total number of each
Merchant Coupon downloaded.
(e) On or about the date of execution of this Agreement, Company shall
appoint a designated project representative who will serve as the primary point
of contact with Getko 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 Getko in performing
Company's obligations under this Agreement, including without limitation the
ability to make any necessary modifications to the Online Area, Merchant
Offerings and/or Coupons within two (2) business days after Getko's request for
such modification. Communication between Getko and Company with respect to any
modifications shall be made or confirmed via confirmed electronic means.
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(f) Company agrees to provide any necessary training and information to
Getko sales personnel to market the Online Product, including but not limited to
training seminars, marketing packets and telephone support.
(g) Company agrees to be solely responsible for the cost of converting
Getko's administrative programs. The estimated cost for the administrative
program conversion is $150,000.00. Company and Getko agree that the cost of
converting Getko's Merchant database shall be shared equally between the
parties. The estimated cost for the Merchant database conversion is $250,000.00.
Getko and Company shall cooperate with the other to complete such conversions.
Section 4. Getko Obligations. (a) Commencing on January 1, 2000 and
during the remainder of the Term, Getko shall be responsible for marketing and
promoting the advertising services available on the Online Area ("Online
Product") to the Merchants. The Online Product shall be offered to Merchants as
a package with the Offline Product. Merchants shall have the option of
purchasing a package of both the Online Product and the Offline Product, or a
Merchant may purchase either one of the Products individually. Merchants who
purchase both Products shall be offered a discounted rate from the monthly fee
charged for the Online Product individually. Getko shall be responsible for
maintaining agreements with the Merchants for the purchase of the Online Product
and the Offline Product and for collecting and processing payments for the
Online Product and Offline Product. The fees charged to the Merchants for the
Online Product (individually or as a package with the Offline Product) shall be
determined by the mutual agreement of the parties. The parties agree to review
these fees from time to time to determine whether to increase or decrease the
fees, such review to include, without limitation, administrative costs and
success rate of Online Products based upon Merchant feedback. The percentage
discounts (including without limitation, multiple zip code representation,
prepayment for a one (1) year agreement and multiple discount offerings) and
terms and conditions of the Merchant agreements (except for the fee) shall be
the same for the Online Product and the Offline Product. Getko acknowledges and
agrees that the Online Product is not available and shall not be marketed,
promoted or offered to local non-profit organizations or Getko's national
accounts.
(b) During the Term, Getko shall provide Company information to be used
in developing the display and content of the Online Area including the name of
each participating Merchant, complete postal address, telephone number,
information relating to the Merchant Offering, Coupon layout and design and any
other information as may be reasonably requested by Company to fulfill its
obligations under this Agreement (the "Merchant Information"). Getko shall
insert an acknowledgment provision in its Offline and Online Products' Merchant
contracts that will authorize Getko and Company to use and display the
Merchant's trademarks, logo and Merchant Information on the Online Area. The
Merchant Information shall be provided to Company at the end of each Merchant
file update period, but not less than three (3) times per month, via electronic
means, if available, or through other means as agreed to by the parties. The
format of such information and the particular time of transfer of the
information shall be mutually agreed by the parties.
(c) Company acknowledges that Getko currently maintains or will
maintain by the date of implementation of the Online Product agreements with
certain Merchants
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for the Offline Product. Company agrees that all existing Merchants in good
standing shall be offered the opportunity to receive the Online Product. If a
Merchant elects to receive the Online Product, the Merchant will be charged the
appropriate fees commencing with the March 2000 billing cycle. Getko agrees to
distribute marketing materials, prepared by Company, at Company's sole expense,
promoting the Online Product to existing Merchants in either the November 1999
or December 1999 Merchant mailings conducted by Getko.
(d) Getko shall use commercially reasonable efforts to promote Company
and its services (including general descriptions of the various features offered
by Company on the Internet Portal) to the Merchants and to encourage Merchants
to list their Merchant Offerings and Coupons on the Online Area in connection
with this Agreement. Such promotional efforts shall include, without limitation,
inserting marketing materials for the Online Product to the extent there is
excess inventory in mailers sent by Getko to the Merchants and/or in mailers
sent by Getko to consumers as part of the Offline Product Package Insert
Program, subject to Getko's standard size and weight limitations. Getko will
cooperate, in good faith, with Company to assist Company in designing and
developing marketing materials, literature and other forms of communications to
be issued by Company to the Merchants, provided, however, that the content and
frequency of all materials sent to or communications with the Merchants must be
approved by Getko prior to any distribution, such approval not to be
unreasonably withheld. Although such assistance will include information and
recommendations from Getko, Getko will not be responsible to provide any
financial assistance to Company pursuant to this subsection (d). Notwithstanding
anything contained in this Agreement to the contrary, Company, an Affiliate or
any third party shall not be permitted to market, advertise or solicit Merchants
for any products and/or services other than the Online Product, and the list of
Getko's Merchants shall remain the property of Getko and shall only be used by
Company or its Affiliates to perform its obligations under this Agreement and
for no other purpose.
(e) Subject to Section 6, Getko shall be permitted to maintain an
independent Web Site for the purpose of promoting its business, the business of
the Merchants (provided that Merchant Offerings and Coupons will not appear on
Getko's Web Site), non-profit or national accounts and internal administration.
Nothing contained in this Agreement shall be construed to prohibit Getko from
advertising offerings including issuance of coupons for any non-profit or
national merchant accounts. Subject to Section 12, Getko shall place the
trademarks, logos or other identifying marks of Company (the "Company Marks") on
Getko's Web Site. Placement and identification of the Company Marks shall be at
least as prominent as the placement and identification of any trademarks, logos
or links of Cendant Corporation and/or any Affiliate where such companies are
collectively displayed. Further, through a Company-identifying icon placed on
the Getko Website, Getko may, at Getko's sole expense, insert a Link connecting
the Merchant area on the Getko Web Site to the section(s) of the Internet Portal
designated for the Online Area.
(f) On or about the execution of this Agreement, Getko shall appoint a
designated project representative who will serve as the primary point of contact
with Company for the purpose of carrying out the day-to-day activities under
this Agreement. The project representative shall be qualified and shall have the
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appropriate authority to approve requests made by Company in performing Getko's
obligations under this Agreement.
Section 5. Commissions/Fees. (a) Not later than five (5) business days
after the end of each calendar month during the Term, Getko will submit a report
to Company identifying all revenue (less any taxes, refunds or credits)
generated from the sale of Online Products to Merchants ("Gross Revenue") during
such month. Within ten (10) business days after the receipt of such report,
Company shall invoice Getko for one hundred percent (100%) of the Gross Revenue
generated during the previous month, less an amount equal to fifty percent (50%)
of the Gross Revenue ("Getko Fee"), which amount shall be retained by Getko as
reimbursement of Getko's administrative costs. The fees payable to Company with
respect to Gross Revenue generated in each calendar month shall be paid not more
than ninety (90) days after the end of such month.
(b) The Getko Fee shall remain fixed for the first six (6) months of
the Agreement. After the first six (6) month period and every three (3) months
thereafter during the Term, Getko shall provide a report to Company indicating
the percentage of Gross Revenue that is subject to bad debt and adjustments
("Bad Debt Percentage"). If the Bad Debt Percentage exceeds fifteen percent
(15%), the Getko Fee shall be increased by one hundred (100) basis points for
each full percent in excess of twelve percent (12%). If the Bad Debt Percentage
is nine percent (9%) or less, the Getko Fee shall be reduced by one hundred
(100) basis points for each full percent less than twelve percent (12%). If the
Bad Debt Percentage is greater than nine percent (9%) but less than fifteen
percent (15%), the Getko Fee shall remain in effect and unchanged.
Section 6. Exclusivity. (a) During the Term, Getko agrees that it shall
not enter into any agreements to furnish the Merchant Offerings or Coupons to
any third party provider or operator of an Internet portal other than Company
nor shall it list the Merchant Offerings or include the Coupons on any internet
Web Site operated by Getko, provided that nothing in this Section 6 shall limit
or otherwise affect Getko's right to list the names, contact information and
business description of the Merchants (as long as no information pertaining to
the Merchant Offerings and/or Coupons is contained therein) or to include any
information about non-profit or national accounts, including information
pertaining to any offering and coupons to be downloaded, on Getko's Web Site.
(b) In the event Getko develops a new product to be offered to its
Merchants, Getko shall notify Company of the nature of the new product and the
terms and conditions of the proposed offering, including pricing elements. The
parties shall mutually determine, in good faith, whether including the new
product on the Internet Portal is appropriate. If the parties are unable to
agree or determine not to offer the new product through the Internet Portal,
Getko shall have the right to offer the new product on its independent Web Site
or through an agreement with a third party provider of internet services, and
the offering of the new product shall not be deemed a violation of the
exclusivity commitment in subsection (a) above. In the event during the Term
Getko desires to provide information pertaining to the Merchants and Merchant
Offerings to new homeowners via electronic means, Getko shall be required to
follow the procedures set forth in this subsection (b).
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Section 7. Indemnity/Limitation of Liability. (a) Company shall
indemnify and hold harmless Getko and its Affiliates (including Cendant),
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) Company's or its employees' or agents' failure to comply with
applicable laws and regulations, negligence or willful misconduct, 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 Company Web Site, Internet Portal or other approved Web Site
only to the extent that such content or advertising is furnished by Company. In
no event shall the indemnity obligation set forth in this subsection (a) apply
to any information (including content) furnished to Company by Getko, provided
Company has been authorized to use such information and has used such
information in accordance with Getko's approval.
(b) Getko shall indemnify and hold harmless Company and its Affiliates
(including Cendant), 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) Getko's or its employees' or agents' failure to
comply with applicable laws and regulations, negligence or willful misconduct,
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 Company Web Site, Internet Portal or other approved Web Site
only to the extent that such content or advertising is furnished by Getko. In no
event shall the indemnity obligation set forth in this subsection (b) apply to
or include the acts or omissions of any Merchant or apply to any information
(including content) furnished to Getko by Company, provided Getko has been
authorized to use such information and has used such information in accordance
with Company's approval.
(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 7. 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 (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 and the rights, remedies, obligations and limitations
of the parties under this Section shall survive termination or expiration of
this Agreement.
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Section 8. Books and Records; Audit. Getko shall use commercially
reasonable efforts to keep accurate and complete records of the revenues
generated by Getko in connection with this Agreement. All such records shall be
available for inspection and audit by Company or its representatives on
reasonable notice to Getko during normal business hours throughout the Term of
this Agreement and for one (1) year thereafter. Notwithstanding the foregoing,
Getko shall only be required to retain records for such period of time as
required by law or as retained in standard accounting practices, but not less
than three (3) years. Getko shall reasonably cooperate with Company in such
inspection and audit. In the event any such inspection or audit establishes an
underpayment of commissions, Getko shall, within five (5) business days of
notification of such deficiency, (i) pay the amount of the deficit, or (ii)
provide Company with written notification disputing the results of the audit. In
the event such audit identifies an overpayment of commissions, such overpayment
shall be a credit against future commissions to become due from Getko to
Company, or if it is determined that future commissions will not become due,
Company will remit payment in the amount of the overage within fifteen (15) days
from such determination. In the event of a dispute over the result of any such
audit, the amount so disputed shall be deposited by the party to be charged with
an escrow agent acceptable to both parties and pursuant to an escrow agreement
acceptable to both parties and such escrow agent shall retain the disputed
amount until such time as the dispute is resolved. The parties agree any such
dispute between the parties shall be the subject of a meeting between management
representatives authorized to negotiate in good faith a mutually acceptable
resolution of such dispute. In the event the parties are unable to resolve such
dispute, each party shall be left to its remedies at law or in equity.
Section 9. Acknowledgments. (a) Company acknowledges that the Merchant
Offerings and Coupons are being offered by Merchants and not Getko, and that
Getko shall not be responsible for the performance or failure to perform or the
quality or level of performance of the Merchants with respect to the Merchant
Offerings and Coupons.
(b) Company acknowledges and agrees that although Getko will promote
and recommend the Online Product to the Merchants, the Merchants will be making
an independent buying decision which may or may not be affected by Getko's
promotion of the Online Product. Getko cannot compel or guarantee any level of
participation by the Merchants.
(c) Company acknowledges and agrees that the Merchants may enter into
and maintain agreements or arrangements with third parties which may include
marketing agreements. In no event shall any such agreements or arrangements
entered into by the Merchants be construed to be a violation of the terms of
this Agreement, including any obligations or limitations of Getko hereunder.
Section 10. 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) (i) in the event of a material breach of the terms of this
Agreement by the other party which is not cured during the period described
below, or (ii) in the event Getko is no longer controlled by, controlling or
under common control with Cendant Corporation, upon notice as defined below. In
the event of a material breach
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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. 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. In the event of a termination pursuant to item (ii) above, the
terminating party shall provide written notice to the other party one (1) year
prior to the effective date of such termination.
(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 any other labor disputes;
and freight embargoes; provided, however, that the delay or failure to perform
by a party shall not be caused by the negligent acts of the such party and that
the non-performing party shall act with due diligence to mitigate any such
delays in its failure to perform.
Section 11. 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) Company and Getko 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 12. Trademarks/Artwork. (a) Except as specifically provided in
this Agreement, Company specifically acknowledges that this Agreement does not
confer upon Company any interest in or right to use any trademark, service mark
or other intellectual property right of Getko, the Merchants or their Affiliates
(the "Getko Intellectual Property Rights") in connection with this Agreement
unless Company receives the prior written consent of Getko. Company further
agrees that upon termination or expiration of this Agreement, Company shall
immediately cease and discontinue all use of the Getko Intellectual Property
Rights. Further, if Company wishes to utilize the Getko Intellectual Property
Rights in advertising or promotional materials, it must submit such materials to
Getko for final approval before utilizing them. In no event may Company or any
affiliated or associated person or entity utilize the Getko Intellectual
Property Rights for any purpose other than in connection with this Agreement.
Company agrees to comply with all requests of Getko with respect to
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the appearance and use of the Getko Intellectual Property Rights, including
without limitation, any requests to change the form or style of the Getko
Intellectual Property Rights and shall at all times consistently use the Getko
Intellectual Property Rights so as to ensure that Getko's rights are adequately
preserved. Getko reserves the right from time to time to require changes to the
Getko Intellectual Property Rights upon thirty (30) days prior written notice to
Company.
(b) Except as specifically provided in this Agreement, Getko
specifically acknowledges that this Agreement does not confer upon Getko any
interest in or right to use any trademark, service mark or other intellectual
property right of Company or its Affiliates (the "Company Intellectual Property
Rights") in connection with this Agreement unless Getko receives the prior
written consent of Company. Getko further agrees that upon termination or
expiration of this Agreement, Getko shall immediately cease and discontinue all
use of the Company Intellectual Property Rights. Further, if Getko wishes to
utilize the Company Intellectual Property Rights in advertising or promotional
materials, it must submit such materials to Company for final approval before
utilizing them. In no event may Getko or any affiliated or associated person or
entity utilize the Company Intellectual Property Rights for any purpose other
than in connection this Agreement. Getko agrees to comply with all requests of
Company with respect to the appearance and use of the Company Intellectual
Property Rights, including without limitation, any request to change the form or
style of the Company Intellectual Property Rights and shall at all times
consistently use the Company Intellectual property Rights so as to ensure that
Company's rights are adequately preserved. Company reserves the right from time
to time to require changes to the Company Intellectual Property Rights upon
thirty (30) days prior written notice to Getko.
Section 13. Relationship of Parties. The relationship between Company
and Getko 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. Company and Getko 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 14. 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 15. Confidentiality. (a) Company acknowledges that any
information conveyed to or obtained by Company regarding the Merchants, Getko
and its business, plans and operations in connection with this Agreement is
confidential and proprietary to Getko (the "Getko Confidential Information").
Company agrees that in no event shall Company disclose, transfer, copy,
duplicate, or publish any Getko
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Confidential Information to any third party without the prior written consent of
Company, which consent may be withheld in Getko's sole discretion. Company
further agrees that it shall not utilize any Getko Confidential Information for
any purpose whatsoever other than for the purpose of performing its obligations
under this Agreement. Company shall only make available the Getko 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 Getko
Confidential Information. Company shall be responsible for the unauthorized
disclosure of any Getko Confidential Information by its employees.
(b) Getko acknowledges that any information conveyed to or obtained by
Getko regarding Company, its business, plans and operations in connection with
this Agreement is confidential and proprietary to Company (the "Company
Confidential Information"). Getko agrees that in no event shall Getko disclose,
transfer, copy, duplicate, or publish any Company Confidential Information to
any third party without the prior written consent of Company, which consent may
be withheld in Company's sole discretion. Getko further agrees that it shall not
utilize any Company Confidential Information for any purpose whatsoever other
than for the purpose of performing its obligations under this Agreement. Getko
shall only make available the Company 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 Company Confidential Information. Getko
shall be responsible for the unauthorized disclosure of any Company Confidential
Information by its employees.
(c) The non-disclosure restrictions set forth in this Section 15 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 Getko Confidential Information or Company 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 Getko Confidential Information and Company
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 Getko Confidential Information and
Company 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 15, the originating
party or parties shall be allowed injunctive relief and
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any other equitable remedies in addition to remedies afforded by law. The
obligations of each party pursuant to this Section 15 shall survive the
termination or expiration of this Agreement.
Section 16. 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 17. 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 18. 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, or via confirmed facsimile or electronic mail, 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.
Company: Getko:
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CompleteHome.com, Inc. Getko Group, Inc.
200 Vallejo Street 115 South Service Street
San Francisco, California 94111 Westbury, NY 11590
Attn: President Attn: President
Section 19. 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 20. 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 York, except for New York's conflict of laws principles. The
parties consent to District Court for the Southern District of New York 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 Company or Getko and anyone
else is for the benefit of the other party hereto. Neither party will interfere
with contractual relations of the other. The section headings in
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this Agreement are for convenience of reference only and will not affect its
interpretation.
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.COM, INC. GETKO GROUP, INC.
By: /S/ Jed Katz By: /S/ Joel Zychick
- ------------------------------ --------------------------
Name: Jed Katz Name: Joel Zychick
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Title: COO Title: President
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