 1. Definitions
Company - means the party purchasing Virtual Tours pursuant to this Agreement.
Company Site - means the collection of Internet pages residing on servers owned, operated or controlled by or for Company or its affiliate, including, without limitation, Company's intranet and extranet, and accessible on or after the date hereof by Company's agents or the public via the Internet, and all successor sites.
Distributing - means transmitting and making available for viewing or use by third parties via electronic or telecommunications networks.
e-Gallery - means a self-executable file or Internet download (at Hawaii Imaging's sole discretion) that displays Virtual Tour Images for one Property. The file or a link to the Internet download can be attached to an e-mail and sent to any number of recipients.
Move Sites - means (1) the Web sites or collection of Internet pages residing on servers owned or controlled by Move.com, Inc. or its affiliated, subsidiary or related companies and currently accessible by the public via the Internet at the following URL's: http://www.move.com,
http://www.realtor.com,
http://www.springstreet.com,
http://www.homebuilder.com,
http://www.homefair.com,
and their successor Web sites or (2) any other web site designated by Move to host the Virtual Tour Images.
Virtual Tour - is a collection of Virtual Tour Images of a single Property.
Hosting" - means storing, maintaining and serving on servers or computer readable media.
HVT" - stands for Hawaii Imaging hometour360° Virtual Tour, and refers to residential real estate tours purchased from Hawaii Imaging.
CVT - stands for Hawaii Imaging commerical360°x360° Virtual Tour, and refers to commercial properties and marketing virtual tours purchased from Hawaii Imaging.
IVT - stands for Hawaii Imaging ipix360°x360° Virtual Tour, and refers to custom agent branding properties and marketing virtual tours purchased from Hawaii Imaging.
Marks - means trade names, trademarks, services names, service marks, logos and trade dress.
National Web Site - means any national real estate destination Web site other than the Move Sites.
Photographic Image - means the photographs (two or more photographs) or video images needed to make one Virtual Tour Image, as determined by Hawaii Imaging in its sole discretion.
Photographic Services - means the service of capturing photographic images by use of a digital camera, video camera or other such technology as determined by Hawaii Imaging in its sole discretion.
Property - means one residential real estate property located in the United States.
Processing - means creating a Virtual Tour Image from captured Photographic Images.
Virtual Tour Images - means images which can be manipulated by an end-user using standard Internet browser software to simulate a virtual 360° view, or such other virtual tour, virtual walk through or similar images as determined by Move in its sole discretion.
Virtual Tour Technology - means the software (including all related Java software) and hardware used to capture, process and view Virtual Tour Images, and all intellectual property rights therein.
Welcome Kit - means the set of materials that describe how Company or its brokers or agents can use Hawaii Imaging hometour360° Virtual Tours.
2. Obligations
For each Virtual Tour purchased, Hawaii Imaging will provide Processing and Distribution services for one Property. Hawaii Imaging agrees to arrange for and provide the Photographic Services at designated sites in Hawaii. Hosting for residential real estate Virtual Tours will be provided by Move. Hosting is not included for Virtual Tours which are not used for residential real estate.
3. Virtual Tour Technology
(a) All Virtual Tour Technology is, and at all times will remain, the exclusive property of Hawaii Imaging, and no provision of this Agreement implies any transfer to Company of any ownership interest in any Virtual Tour Technology. In the event Company is deemed to have any ownership in any Virtual Tour Technology, Company hereby assigns to Move all right, title and interest in the Virtual Tour Technology. Company will not reproduce, distribute, modify or prepare derivative works of the Virtual Tour Technology without the prior written approval of Move; except that Company may make copies of the Virtual Tour Technology only to the extent necessary to redistribute e-Galleries as permitted herein. If e-Galleries are provided hereunder, Move grants Company the right to make copies and distribute such e-Galleries to its users for the purposes set forth herein.
If e-Galleries are provided hereunder, Company warrants that (1) it shall not modify in any manner the self-executable file or Internet download relating to such e-Gallery or the Virtual Tours Technology contained therein; (2) it shall not copy or distribute the e-Galleries or Virtual Tours Technology except as provided herein; (3) it shall not reverse engineer, decompile, disassemble, modify or create derivative works of the e-Galleries or Virtual Tour Technology; (4) it shall not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the e-Galleries or Virtual Tour Technology, or directly permit any third party to use or copy the e-Galleries or Virtual Tour Technology, except as provided herein; (5) it shall not export the e-Galleries or Virtual Tour Technology contained therein without the prior written permission of Move; (6) it shall attach to all e-Galleries an agreement imposing all of the foregoing restrictions on all its end users and shall cause all its users to view such agreement before accessing the self-executable file or Internet download relating to such e-Gallery.
(b) If Company provides photographs or any other materials to Hawaii Imaging (Company Materials) for use in making the Virtual Tour Images or for any other purpose, Company represents and warrants that the Company Materials (a) do not in any way violate any local, state or federal law; (b) are not libelous or defamatory; (c) do not violate the right of privacy or publicity of persons or other state or federal rights; (d) do not constitute a trade secret; and (e) do not infringe any copyright, trademark, patent rights, or other intellectual property rights of a third party. Company hereby grants Hawaii Imaging a nonexclusive, perpetual, irrevocable, unlimited, worldwide, royalty-free, fully paid-up, transferable license to use, sublicense, copy, reproduce, modify, and prepare derivative works of all Company Materials and to distribute, publicly display and publicly perform all Company Materials and derivative works thereof for any and all purposes whatsoever, commercial or otherwise in any media, now known or hereinafter created.
(c) For the term of this Agreement, Hawaii Imaging hereby grants to Company a nonexclusive, worldwide, royalty-free (except as otherwise provided herein), nontransferable license to include links on the Company Site to Virtual Tour Images (for which fees have been paid as set forth herein) hosted on the Move Sites solely for the purposes contemplated in this Agreement.
(d) Hawaii Imaging hereby grants the Company all right, title and interest in the Photographic Images purchased hereunder; and Company hereby grants to Hawaii Imaging a nonexclusive, perpetual, irrevocable, unlimited, worldwide, royalty-free, fully paid-up, transferable license to use, sublicense, copy, reproduce, modify, and prepare derivative works of all Photographic Images and to distribute, publicly display and publicly perform all Photographic Images and derivative works thereof for any and all purposes whatsoever, commercial or otherwise in any media, now known or hereinafter created.
(e) Hawaii Imaging hereby assign to Company all right, title and interest in the Virtual Tour Images, excluding any Virtual Tour Technology which may be incorporated therein; and Company hereby grants to Hawaii Imaging a nonexclusive, perpetual, irrevocable, unlimited, worldwide, royalty-free, fully paid-up, transferable license to use, sublicense, copy, reproduce, modify, and prepare derivative works of all Virtual Tour Images and to distribute, publicly display and publicly perform all Virtual Tour Images and derivative works thereof for any and all purposes whatsoever, commercial or otherwise in any media, now known or hereinafter created.
4. Trademark
(a) In connection with the performance of this Agreement, and subject to the other provisions contained herein, Hawaii Imaging grants Company a non-exclusive license to use Hawaii Imaging Company's Marks, and Company grants Hawaii Imaging a non-exclusive license to use the Company's Marks; provided that each party: (i) does not create a unitary composite mark involving a Mark of the other party without the prior written approval of such other party; and (ii) displays symbols and notices clearly and sufficiently indicating the trademark status and ownership of the other party's Marks in accordance with applicable trademark law and practice. Notwithstanding any provision of this Agreement, Company may not use any of Move's Marks without Move's prior written approval.
(b) As between the parties, each party acknowledges the ownership of the other party in the Marks of the other party and agrees that all use of the other party's Marks, or goodwill therefrom, shall inure to the benefit, and be on behalf, of the other party. Each party acknowledges that its use of the other party's Marks shall not create in it, nor shall it represent it has, any right, title, or interest in or to such Marks other than the licenses expressly granted herein. In connection with the operation of each of their respective business, each party shall not engage in or allow others under its control or direction (including independent contractors, employees and agents) to engage in any practice or other activity that is or is likely to be detrimental to the goodwill associated with the other party's Marks or the goodwill or reputation of the other party or its services or products, or that constitutes a deceptive trade practice or unfair competition or that violates any applicable fair trade laws or advertising rules and regulations that would disparage the Marks of the other party.
(c) In connection with the operation of each of its respective business, each party shall not engage in or allow others under its control or direction (including independent contractors, employees and agents) to engage in any practice or other activity that is or is likely to be detrimental to the goodwill associated with the other party's Marks or the goodwill or reputation of the other party or its services or products, or that constitutes a deceptive trade practice or unfair competition or that violates any applicable fair trade laws or advertising rules and regulations. Each party shall comply with all applicable laws, regulations, and customs and obtain any required government approvals pertaining to use of the other party's Marks.
5. Limitation on Grant of Rights
Except as expressly provided herein, neither party receives any other right or license to the technology or intellectual property of the other party.
6. Tour Hosting
Hosting provided by Move's hometour360° Virtual Tours will be hosted on the Move or Hawaii Imaging servers for the "life of the listing" until house has sold, or taken off the market) or (twelve months). Tours will be kept on the Move servers for at least six months. Any tour(s) not being viewed by the public during any 30-day period after that six-month period will be archived. Additional charges apply for the re-posting of any archive tour. iPIX® 360° Virtual Tours will not be hosted under this agreement, although hosting options are available at additional cost from Hawaii Imaging. Company may, however, host Virtual Tours at their own expense on their own Company Sites.
7. Termination
Hawaii Imaging Virtual Tours are valid for one year from the date of purchase. If the hometour360° Virtual Tour is not used during this time it will expire and be deemed forfeited. The provisions of Sections 3(a), 4, 5, 6(a), 7, 8, 9 and 10 of these Terms and Conditions will survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties will cease upon expiration or termination of this Agreement.
8. No Warranties
Hawaii Imaging makes no representations or warranties, and specifically disclaims all warranties with respect to any goods or services provided under this agreement, express or implied, including any implied warranty of merchantability, fitness for a particular purpose, title, noninfringement, and implied warranties resulting from the course of dealing or performance. without limiting the generality of the foregoing, Hawaii Imaging specifically disclaims any warranty regarding (1) any benefit Company or sales agents may obtain from the products or services hereunder; or (2) the operation or appearance of the Virtual Tour images or Move Site on which such Virtual Tour images are hosted. MOVE DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED SERVICES OF THE MOVE SITES. In the event of interruption of the services of the Move Sites, Move's sole obligation shall be to restore service to the Move sites as soon as reasonably possible.
9. Limitation of Liability
In no event shall Hawaii Imaging be liable to Company for any indirect, special, incidental, punitive or consequential damages, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not that party has been advised of the possibility of such damage. Hawaii Imaging's aggregate liability arising under, with respect to or in connection with this agreement shall not exceed the total monies paid by company to Hawaii Imaging, as the case may be, under this agreement during the twelve (12) month period immediately preceding the date on which such liability arises.
10. Indemnity
Customer shall indemnify, defend, and hold harmless Hawaii Imaging, Move, ISC, their respective suppliers, licensors and affiliates and the respective directors, consultants, officers, employees and agents of the foregoing with respect to any and all claims, suits, liability, demands, damages, costs and expenses, (including, but not limited to reasonable attorneys' fees and litigation expenses), arising out of or as a result of (1) Company's breach of the representations, warranties, obligations, covenants or agreements herein, or (2) any allegation that any Company Materials (a) in any way violate any local, state or federal law; (b) are libelous or defamatory; (c) violate the right of privacy of persons or other state or federal rights; (d) constitute a trade secret; or (e) infringe any copyright, trademark, patent rights, or other intellectual property rights of a third party.
11. Miscellaneous
The parties to this Agreement are independent contractors and nothing herein shall be construed as creating an employment, agency, franchise, joint venture or partnership relationship between the parties. Except as expressly set forth herein, none of the parties hereto shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability, or to otherwise bind, the other parties.
Company may not assign this Agreement without Hawaii Imaging's written consent. Neither Hawaii Imaging, ISC nor Move may assign this Agreement to one or more parties without the prior written consent of the other, except that ISC and Move may assign this Agreement without the other's written consent in the case of a reorganization, merger, consolidation, or sale of all or substantially all of its virtual tour assets or is assigned to an affiliated company, so long as the party to whom this Agreement is assigned assumes the assigning party's obligations under this Agreement and has the financial and other resources to perform the assigned obligations.
Any attempt to assign this Agreement other than as permitted above shall be null and void. Except for Company's payment obligations, neither party shall be liable to the other party arising out of delays or failures to perform under this Agreement to the extent any such delays or failures result from any cause beyond the reasonable control of the party affected and which such party is unable to avoid or overcome by the exercise of reasonable diligence.
Each party shall obtain the other's written consent prior to any publication, presentation, public announcement or press release concerning the relationship between the parties or the existence or terms and conditions of this Agreement. This Agreement shall be governed by the laws of California without giving effect to applicable conflict of laws provisions.
With respect to any litigation arising out of or relating to this Agreement, each party agrees that it shall be filed in and heard by the state or federal courts with jurisdiction to hear such suits located in Los Angeles County California. This Agreement, including any exhibits and other attachments hereto, constitutes the entire understanding and agreement with respect to its subject matter, and supersedes any and all prior or contemporaneous representations, understandings and agreements whether oral or written between the parties relating to the subject matter of this Agreement, all of which are merged in this Agreement.
In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, and the parties will work in good faith to amend such invalid or unenforceable provisions to make such provisions valid and enforceable and maintain the original benefit of the bargain for each party to the maximum extent possible. All amendments or modifications of this Agreement shall be binding upon the parties despite any lack of consideration so long as such amendment or modifications are in writing and executed by the parties.
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