EXHIBIT 10.13(a)
ABT SUBSCRIPTION AGREEMENT
--------------------------
THIS AGREEMENT made this ((Ck_RcvdTxt)) by and between Auto-By-Tel Marketing
Corporation, a Delaware Corporation, with its principal place of business at
18872 MacArthur Boulevard, Second Floor, Irvine CA 92612-1400 ("ABT"), and
((Dealer_Corp)), a(n) ((STTxt)) ((Entity)), d.b.a. ((Dealer_DBA)), with its
principal place of business at ((Bill_Addr)), ((City)) ((ST)) ((Dlr_Zip)).
RECITALS
--------
WHEREAS, ABT is in the business of locating persons interested in purchasing
and/or leasing automobiles and/or trucks primarily through electronic media
("Potential Purchasers"):
WHEREAS, Dealer is a dealer of automobiles and/or trucks who wishes to
participate in a program where ABT provides certain information about Potential
Purchasers to Dealer which will facilitate Dealer's sales of automobiles to
Potential Purchasers and thereby decrease marketing costs which, in turn, will
allow Dealer to offer automobiles and trucks at a competitive price;
WHEREAS, ABT has invested considerable amounts of money in order to acquire
relevant information about Potential Purchasers from the Internet and on-line
computer services; and
WHEREAS, ABT wishes to ensure that Dealer will provide a high level of service
to Potential Purchasers provided to the Dealer through their participation in
this program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, ABT AND DEALER AGREE AS FOLLOWS:
1. SERVICES TO BE PERFORMED.
------------------------
ABT shall provide a marketing program on the Internet and Online
Services to attract Potential Purchasers and shall forward information
regarding the Potential Purchasers identified for the make subscribed and
in the zip code area subscribed to the Dealer.
2. USE OF SERVICES.
---------------
(a) Dealer Participation. Dealer agrees to abide by ABT's Customer
--------------------
Service Standards as more fully described in Paragraph 10 below, which may be
revised from time to time by ABT. Dealer shall designate one key employee to be
provided instructions by ABT or its authorized agent. Dealer shall notify ABT
within ten (10) days of any change in the assignment of any designated key
employee. Dealer shall be responsible for costs, if any, associated with the
training of its key employees to use ABT's services. Dealer shall promptly sign
any confidentiality agreements submitted by ABT to protect ABT's proprietary
rights. ABT shall notify Dealer in writing of any revisions or additions to the
Customer Service Standards, and such revisions shall take effect immediately
upon Dealer's receipt thereof. Without limiting the generality of the
foregoing, Dealer acknowledges that Auto-By-Tel will institute a financing
program whereby customers may receive low-cost financing from sources provided
by Auto-By-Tel through its web site (the "Financing Arrangements"). Dealer
agrees with ABT that low-cost Financing Arrangements pursuant to which customers
would (i) receive a financing proposal in conjunction with their receipt of a
vehicle price quote, and (ii) close both the vehicle acquisition and financing
quickly through Dealer, would be viewed by customers as an improvement in the
Auto-By-Tel program, consequently increasing the attractiveness of the ABT
program and its value to Dealer. Dealer agrees to cooperate fully with the
Financing Arrangements instituted by ABT through its web site, including without
limitation entering into customary closing administration arrangements with
finance companies as requested by ABT, and to take such actions as reasonably
requested by such finance companies or ABT to ensure that customers receive a
high level of service and satisfaction in connection with the Financing
Arrangements. After ABT commences the Financing Arrangements, Dealer
acknowledges that changes in the Customer Services Guidelines may from time to
time pertain to such Financing Arrangements.
(b) Use of System and Modifications. It is agreed to by the parties that
-------------------------------
the use of ABT's services is restricted solely to Dealer and its designated
employees and other duly authorized licensees of ABT. Dealer shall not compete
with ABT in providing the services herein discussed.
3. EQUIPMENT.
---------
(a) ABT Equipment. ABT warrants that it possesses or has access to and
-------------
the right to use computer equipment and other office equipment necessary for ABT
to perform its services contemplated by this Agreement.
(b) Dealer Equipment. Dealer, at its sole cost and expense, shall provide
----------------
the computer and other office equipment specified from time to time by ABT to
use and receive the services to be provided hereunder by ABT.
(c) Equipment Maintenance, Risk of Loss. Dealer shall maintain all of
-----------------------------------
their computer and office equipment in good and proper working order and repair.
Dealer shall assume all responsibility for loss or damage to Dealer's equipment
in the utilization of the services to be provided hereunder by ABT.
4. TITLE TO SYSTEM, TRADEMARKS.
---------------------------
The services to be provided hereunder by ABT, together with any
modifications and/or improvements therein made by ABT or Dealer during the term
of this Agreement, or any extensions thereof, and all copies thereof are
proprietary to ABT and title thereto remains in ABT. All applicable rights to
patents, copyrights, trademarks and trade secrets in the System and in the name
"Auto-By-Tel" and its logo are and shall remain solely in ABT. Any and all
trademarks and service marks associated with ABT are and shall remain the
exclusive property of ABT. If, during the term of this Agreement, a trademark
registration is filed by ABT, all rights belong to ABT who shall also bear the
costs for such registration. Dealer is permitted to use the trademark and
service mark only as set forth herein or only as authorized in writing by ABT.
5. ASSIGNMENT OF TERRITORY.
-----------------------
Subject to the terms and conditions set forth in this Agreement, ABT hereby
grants to Dealer the non-transferable right to use the services to be performed
by ABT, as contemplated by this Agreement, within the geographic area
designated by the following zip codes: ((Territory)) and for the following make
of motor vehicles: ((Franchise)) (the "Territory"). ABT may change the Dealer's
Territory upon thirty (30) days written notice.
Notwithstanding the foregoing, ABT retains the right, directly or through
other dealerships, to market and use its System and services in all areas other
than Dealer's Territory, and within Dealer's Territory for all makes of motor
vehicles not listed above.
6. SUBSCRIPTION FEES.
-----------------
(a) Dealer shall pay ABT ((Amt_Text)) dollar(s) (((Amount))) as an initial
start-up fee concurrently with Dealer's execution of this Agreement.
(b) Dealer shall pay ABT the amount of ((Monthly)) as a monthly
subscription fee which is due and payable on the first day of every
month. ABT may change this monthly subscription fee upon thirty (30)
days written notice of the increased price to the dealer.
(c) Dealer shall pay ABT an annual fee on the first anniversary date of
this Agreement and each anniversary thereafter. A notice indicating
the amount of the annual fee will be sent to the Dealer prior to the
anniversary date of this Agreement.
(d) If ABT terminates this Agreement pursuant to Section 8(b)(ii) for no
reason or Dealer terminates this Agreement pursuant to Section
8(c)(iii), ABT shall refund a prorated amount of fees paid under this
Agreement for the remaining portion of the period with respect to
which such fees had been paid, except that the monthly fees due for
the month in which the Agreement is terminated shall not be refunded
or prorated. (The startup fee shall be deemed to have been paid for
the first year this Agreement is in effect.) In no other circumstances
shall any amounts paid under this Agreement be refundable.
7. TAXES.
-----
Dealer shall, in addition to any other amounts payable under this
Agreement, pay all taxes - federal, state, local or otherwise, excluding income
taxes attributable to the income of ABT however designated which are levied or
imposed by reason of the services provided under this Agreement. Without
limiting the foregoing, Dealer shall promptly pay to ABT an amount equal to any
such items actually paid or required to be collected or paid by ABT.
8. TERM AND TERMINATION.
--------------------
(a) This Agreement shall be for a term of three (3) years, provided that
ABT, in its sole discretion, may extend the term of this Agreement for an
additional two (2) years.
(b) ABT may terminate this Agreement:
(i) immediately if Dealer does not adhere to the Customer Service
Standards in effect, or any fees due ABT pursuant to Section 6
are outstanding more than thirty (30) days, or if any amount
payable to ABT under Sections 7 or 13 are outstanding more than
thirty (30) days after ABT makes a written request therefor, or
any other breach by Dealer of this Agreement is not cured
within ten (10) days after written notification by ABT of such
breach; or
(ii) at any other time, for any reason or for no reason, upon thirty
(30) days written notice to the Dealer.
(c) Dealer may terminate this Agreement:
(i) immediately, if an order for liquidation against ABT is entered
and not stayed in a bankruptcy proceeding;
(ii) immediately, if ABT is guilty of willful misconduct in the
performance of its duties under this Agreement;
(iii) upon thirty (30) days written notice delivered within ten (10)
days of the effective date of any shrinkage of Dealer's
Territory pursuant to Section 5; or
(iv) at any other time, in its sole discretion, upon thirty (30)
days written notice to ABT.
If this Agreement is terminated prior to the date set forth herein, the parties
agree to continue to be bound to the covenants and promises set forth in
paragraphs 2b, 4, 12, 13, 14, 15, & 21.
9. PERIODIC OPERATIONS REPORTS.
---------------------------
(a) Reports. ABT shall furnish to Dealer, on a quarterly basis, an
-------
operations report which shall include the number of inquiries received by ABT
from Potential Purchasers in Dealer's Territory. Dealer shall report to ABT on
a monthly basis the number and names of Potential Purchasers who purchased motor
vehicles from Dealer, the number of vehicles financed and the amounts financed
and such other information as ABT may from time to time request.
(b) Duty of Care. ABT shall not be liable for any loss of data, delays
------------
and/or errors in transmitting data occurring for any reason or for any damages
arising as a consequence thereof.
Page 1
((ABT_DLRN)) ((Dealer_ID)) Parent ID ((Parent_ID)) ((Franchise))
10. CUSTOMER SERVICE STANDARDS.
--------------------------
Dealer shall relay to Potential Purchasers a full and complete response to
the Potential Purchasers' inquiries transmitted by ABT to Dealer within 24 hours
of receipt of the inquiry from ABT. Dealer's initial response shall be by
telephone and shall disclose (i) the availability of the vehicle inquired about,
(ii) the manufacturer's suggested retail price of the vehicle, (iii) all
requested options, (iv) the price at which the Dealer will sell/lease the
vehicle with all requested options to the Potential Purchaser, and (v) all other
terms and costs required by law to be disclosed to prospective purchasers (all
such information, the "Dealer Information"). In order to improve the services
offered by ABT while maintaining uniform delivery of such services, ABT may,
from time to time, amend the Customer Service Standards, or impose additional
Customer Service Standards upon thirty (30) days notice to Dealer. Dealer
acknowledges that maintenance of the ABT Customer Service Standards is crucial
to the value of ABT's services and agrees to adopt such amendments or additions,
even though they may require more work or expense to implement. ABT agrees that
it will not impose amendments or additions unless they are applied to all
Dealers.
11. DEALER'S COVENANTS.
------------------
Dealer hereby covenants and agrees that all of the terms and conditions
contained in Dealer Information transmitted to a Potential Purchaser shall
remain in full force and effect and be binding upon Dealer for a period of seven
(7) days after its transmittal provided the identified vehicle still remains
available for sale, and Dealer agrees to include a statement to such effect in
the Dealer Information.
12. CONFIDENTIALITY.
---------------
ABT agrees to treat all records and other information provided by Dealer,
with respect to terms of sale, financing or leasing of motor vehicles,
confidential, except that this information may be transmitted to consumers
making inquiries concerning the terms of purchase, financing or leasing of motor
vehicle(s). Dealer, on behalf of itself and its employees, agrees to keep all
information with respect to ABT's services confidential and, without the
previous written consent of ABT, Dealer shall not impart ABT's services, or the
concept thereof, to any person or entity whatsoever other than employees of
Dealer. Notwithstanding the foregoing, if either party is required to produce
any such information by order of any government agency, court of competent
jurisdiction, or other regulatory body, it may, upon not less than five days
written notice to the other party, release required information. During the
term of this Agreement, Dealer will have access to and become acquainted with
various trade secrets, consisting of formulas, strategies, processes, computer
programs, compilations of information, records, specifications, and contractual
information, all of which are owned by ABT and regularly used in the operation
of ABT's business. Dealer acknowledges and agrees that it will keep such trade
secrets confidential, and the sale or unauthorized use or disclosure of any of
ABT's trade secrets constitutes theft and will greatly damage ABT.
13. INDEMNIFICATION.
---------------
Dealer agrees to indemnify and hold harmless ABT and its subsidiaries
and/or affiliates and their respective members, managers, directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements, and costs, including fees and expenses, arising
out of or related to any third party claim (including, but not limited to, any
claim for damages by any person or entity who purchases, leases and/or finances
a motor vehicle(s) from Dealer through the utilization of ABT's services)
resulting from the use of ABT's services provided hereunder. Dealer shall
defend and settle, at its sole cost and expense, all suits or proceedings
arising out of any of the foregoing, provided ABT gives Dealer prompt notice of
any such claim of which it learns. In all events, ABT shall have the right to
participate in the defense of any such suit or proceedings through counsel of
its own choosing. ABT shall be without liability to Dealer with respect to
anything done, or ordered to be done, in accordance with the terms of this
Agreement or instructions properly received pursuant hereto, if done in good
faith and without gross negligence or willful or wanton misconduct.
14. EXCLUSIVITY.
-----------
Dealer acknowledges that the value to Dealer of this agreement is based on
the unique package of services marketed to automobile customers by ABT and ABT's
reputation for delivering such services on a consistent basis. Dealer agrees
that certain key elements of the ABT package of services are: (i) electronic
transmission of customer purchase or lease requests; (ii) rapid response by
dealers to consumer pricing or lease pricing requests, including immediate
telephone contact with upfront, firm pricing provided over the phone on such
call; (iii) customer paperwork completed or nearly completed prior to customer
arrival at the dealership for pickup so as to ensure the customer spends as
little time as possible at the dealership for pickup; and (iv) Dealer training
and support to implement the ABT package of services and to maintain the style
and reputation of the ABT package of services (collectively the "Key Elements').
Dealer acknowledges that ABT has spent, and will spend, considerable time and
money developing its package of services and training Dealer to deliver such
services in a consistent way which maintains ABT's distinctive market presence
and reputation. Accordingly, Dealer agrees that during the Term of this
Agreement (and for one (1) year thereafter if this Agreement is terminated
unless it is terminated by the Dealer pursuant to section 8(c)(iii)), Dealer and
its affiliates will not, directly or indirectly, participate with any third
party in any arrangement or agreement which involves any or all of the Key
Elements, and will not, directly or indirectly, participate with any third party
in any arrangement or agreement which involves any or all of the Key Elements,
and will not participate in any pricing, credit or financing, insurance or
information service involving or made available on the Internet, online or by
other electronic means. Without contradicting the foregoing, Dealer may
establish and maintain its own web site and/or participate in any factory direct
program.
Notwithstanding any other provisions of this Agreement, in the event Dealer
breaches this Section 14, the provisions of this Section shall remain in full
force and effect for one (1) year after such breach is cured. Dealer
acknowledges that the provisions of this Section 14 were a material inducement
to ABT in entering into this Agreement, and that ABT would not have entered into
this Agreement with Dealer in the absence of such provisions.
Dealer acknowledges and agrees that compliance with the provisions of
Sections 12 and 14 is necessary to protect the business and good will of ABT,
and that any breach of Sections 12 or 14 will result in irreparable and
continuing damage to ABT, for which money damages may not provide adequate
relief. Accordingly, Dealer agrees that during the "Exclusivity Period" (as
defined below), Dealer and its affiliates will not directly or indirectly,
participate with any third party in any arrangement or agreement which involves
any or all of the Key Elements, and will not participate in any pricing, credit
or financing, insurance or information service involving or made available on
the Internet, online or by other electronic means. For purposes of this Section
14, the "Exclusivity Period" commences on the date of this Agreement, and
terminates one year after the date of termination; provided, however, that if
-----------------
this Agreement is terminated any time after the first anniversary of the date
hereof, then the Exclusivity Period terminates six months after the date of
termination; provided, further, however, that if this Agreement is terminated by
--------------------------
Dealer pursuant to Section 8(c)(iii) hereof, then the Exclusivity Period
terminates on the date of termination of the Agreement.
15. WARRANTY LIMITATION.
-------------------
ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE OF THE SERVICES HEREUNDER
AND DEALER SPECIFICALLY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED ARISING OUT
OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT BY
ABT. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS OF BUSINESS
PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, OR
FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
16. ADVERTISEMENTS.
--------------
From time to time, ABT may provide Dealer with camera-ready and other
logos, trademarks, artwork and materials for the limited purpose of inclusion,
at Dealer's option, within Dealer print and television advertisements to promote
the association of Dealer with the ABT program. ABT shall grant Dealer a
revocable, limited license to use such materials for such limited purposes, and
Dealer shall use such materials in no other manner. Any such materials shall
remain at all times the property of ABT, they shall be returned upon request,
and the limited license herein granted may be revoked at any time by written
notice to Dealer.
17. NOTICES.
-------
All notices and requests in connection with this Agreement shall be given
or made upon the respective parties in writing and shall be deemed as given on
the day it is deposited in the U.S. mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement or to such address as the party to receive the notice or request
so designates by written notice to the other.
18. ASSIGNMENT.
----------
This Agreement and the rights and duties hereunder shall not be assignable
by the Dealer except upon written consent of ABT. This Agreement and the rights
and duties hereunder shall be assignable by ABT.
19. INDEPENDENT CONTRACTORS.
-----------------------
The relationship between ABT and Dealer created by this Agreement shall be
that of independent contractor. Nothing contained in this Agreement shall be
construed as creating or constituting a partnership, agency, or joint venture
between ABT and Dealer.
20. NO WAIVER.
---------
The failure of either party to exercise in any respect any right provided
for herein shall not be deemed a waiver of any right hereunder.
21. SEVERABILITY, GOVERNING LAW AND JURISDICTION.
--------------------------------------------
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, such determination shall in no way alter or impair the validly,
legality and enforceability of the remaining provisions of this Agreement. This
Agreement and the performance hereunder shall be governed and construed in
accordance with the laws of the
State of California. Any dispute or claim arising between the parties hereto
shall be brought in a court of competent jurisdiction located in the County of
Orange in the State of California and the parties hereto agree to jurisdiction
in California.
22. COOPERATION.
-----------
Upon the request of ABT, Dealer agrees to confirm in writing, in form
satisfactory to ABT and provided by ABT at its own expense, any amendment,
modification, change in original terms or other action which alters the terms of
this Agreement and which was taken or initiated by ABT pursuant to rights
granted to, or reserved by, ABT hereunder.
23. OTHER AGREEMENTS.
----------------
This Agreement supersedes any and all agreements, either oral or written,
between the parties and contains all of the representations, covenants, and
agreements between the parties with respect to the rendering of the services
described in this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
contained in this Agreement, and that no other agreement, statement, or promise
not contained in this Agreement will be valid or binding. Any modification of
this Agreement will be effective only if it is in a writing signed by the party
to be charged.
Auto-By-Tel Corporation, a Delaware Corporation Dealer: ((Dealer_Corp))
By: By:
-------------------------- --------------------------
Name: Peter Ellis Name: ((Sirname)) ((Dlr_First)) ((Dlr_Last))
Title: President Title: ((Dlr_Title))
Page
((ABT_DlrN)) ((Dealer_ID)) Parent ID ((Parent_ID)) ((Franchise))
EXHIBIT 10.13(b)
ABT SUBSCRIPTION AGREEMENT
--------------------------
THIS AGREEMENT made this ((Ck_RcvdTxt)) by and between Auto-By-Tel
Marketing Corporation, a Delaware Corporation, with its principal place of
business at 2711 E. Coast Highway, Corona Del Mar, California 92625 ("ABT"), and
((Dealer_Corp)), a(n) ((STTxt)) ((Entity)), d.b.a. ((Dealer_DBA)), with its
principal place of business at ((Bill_Addr)), ((City)) ((ST)) ((Dlr_Zip.)).
RECITALS
--------
WHEREAS, ABT is in the business of locating persons interested in purchasing
and/or leasing automobiles and/or trucks primarily through electronic media
("Potential Purchasers");
WHEREAS, Dealer is a dealer of automobiles and/or trucks who wishes to
participate in a program where ABT provides certain information about Potential
Purchasers to Dealer which will facilitate Dealer's sales of automobiles to
Potential Purchasers and thereby decrease marketing costs which, in turn, will
allow Dealer to offer automobiles and trucks at a competitive price;
WHEREAS, ABT has invested considerable amounts of money in order to acquire
relevant information about Potential Purchasers from the Internet and on-line
computer services; and
WHEREAS, ABT wishes to ensure that Dealer will provide a high level of service
to Potential Purchasers provided to the Dealer through their participation in
this program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, ABT AND DEALER AGREE AS FOLLOWS:
1. SERVICES TO BE PERFORMED
------------------------
ABT shall provide a marketing program on the Internet and Online
Services to attract Potential Purchasers and shall forward information regarding
the Potential Purchasers identified for the make subscribed and in the zip code
area subscribed to the Dealer.
2. USE OF SERVICES.
---------------
(a) Dealer Participation. Dealer agrees to abide by ABT's Customer
--------------------
Service Standards as more fully described in Paragraph 10 below, which may be
revised from time to time. Dealer shall designate one key employee to be
provided instructions by ABT or its authorized agent. Should the assignment of
any designated key employee change, Dealer shall notify ABT. Dealer shall be
responsible for costs, if any, associated with the training of its key employees
to use ABT's services. Dealer shall sign any necessary confidentiality
agreements to protect ABT's propriety rights.
(b) Use of System and Modifications. It is agreed to by the parties that
-------------------------------
the use of ABT's services is restricted solely to Dealer and its designated
employees and other duly authorized licensees of ABT. Dealer shall not compete
with ABT in providing the services herein discussed.
3. EQUIPMENT.
---------
(a) ABT Equipment. ABT warrants that it possesses or has access to and
-------------
the right to use computer equipment and other office equipment necessary for ABT
to perform its services contemplated by this Agreement.
(b) Dealer Equipment. Dealer, at its sole cost and expense, shall provide
----------------
the computer and other office equipment necessary to use and receive the
services to be provided hereunder by ABT.
(c) Equipment Maintenance, Risk of Loss. Dealer shall maintain all of
-----------------------------------
their computer and office equipment necessary for the utilization of the
services to be provided hereunder by ABT in good and proper working order and
repair. Dealer shall assume all responsibility for loss or damage to Dealer's
equipment in the utilization of the services to be provided hereunder by ABT.
4. TITLE TO SYSTEM.
---------------
The services to be provided hereunder by ABT, together with any
modifications and/or improvements therein made by ABT or Dealer during the term
of this Agreement, or any extensions thereof, and all copies thereof are
proprietary to ABT and title thereto remains in ABT. All applicable rights to
patents, copyrights, trademarks and trade secrets in the System and in the name
"Auto-By-Tel" and its logo are and shall remain solely in ABT.
5. ASSIGNMENT OF TERRITORY
-----------------------
Subject to the terms and conditions set forth in this Agreement, ABT
hereby grants to Dealer the exclusive, non-transferable right to use the
services to be performed by ABT, as contemplated by this Agreement, within the
geographic area designated by the following zip codes: ((Territory)) and for the
following make of motor vehicles: ((Franchise)) (the "Territory").
Notwithstanding the foregoing, ABT retains the right, directly or
through other dealerships, to market and use its System and services in all
areas other than Dealer's Territory, and within Dealer's Territory for all makes
of motor vehicles not listed above.
6. SUBSCRIPTION FEES.
-----------------
(a) Dealer shall pay ABT ((Amt_Text)) dollar(s) (((Amount))) as an
initial start-up fee concurrently with Dealer's execution of this Agreement.
(b) Dealer shall pay ABT the amount of ((Monthly)) as a monthly
subscription fee which is due and payable on the first day of every month. ABT
may change this monthly subscription fee upon thirty (30) days written notice of
the increased price to the dealer.
(c) Dealer shall pay ABT an annual fee on the first anniversary date of
this Agreement and each anniversary thereafter. A notice indicating the amount
of the annual fee will be sent to the Dealer 60 days prior to the anniversary
date of this Agreement.
7. TAXES.
-----
Dealer shall, in addition to any other amounts payable under this
Agreement, pay all taxes - federal, state, local or otherwise - however
designated which are levied or imposed by reason of the services provided under
this Agreement. Without limiting the foregoing, Dealer shall promptly pay to
ABT an amount equal to any such items actually paid or required to be collected
or paid by ABT.
8. TERM.
----
This Agreement shall be for a term of five (5) years, commencing upon
the date hereof and terminating on ((Term_DateTxt)) unless sooner terminated
according to the provisions hereof. Either party may terminate this Agreement,
at their sole option and for any reason whatsoever, at any time by providing the
other party 30 days written notice. This Agreement may be terminated by ABT
immediately and without notice in the event that Dealer does not adhere to ABT's
Customer Service Standards or in the event that any fees due ABT are outstanding
more than 30 days. If this Agreement is terminated prior to the date set forth
herein, the parties agree to continue to be bound to the covenants and promises
set forth in paragraphs 2b, 4, 12, 13, 15, and 22.
9. PERIODIC OPERATIONS REPORTS
---------------------------
(a) Reports. ABT shall furnish to Dealer, on a quarterly basis, an
-------
operations report which shall include die number of inquiries received by ABT
from consumers in Dealer's exclusive Territory. Dealer shall report to ABT on a
monthly basis the number and names of Potential Purchasers who purchased motor
vehicles from Dealer, the number of vehicles financed and the amounts financed
and such other information as ABT may from time to time request.
(b) Duty of Care. ABT shall not be liable for any loss of data, delays
------------
and/or errors in transmitting data occurring by reason of circumstances beyond
its reasonable control or for any damages rising as a consequence thereof.
10. CUSTOMER SERVICE STANDARDS
--------------------------
Dealer shall relay to Potential Purchasers a full and complete
response to the Potential Purchasers' inquiries transmitted by ABT to Dealer
within 24 hours of receipt of the inquiry from ABT, exclusive of Saturdays,
Sundays and holidays recognized by the federal government. Dealer's initial
response shall be by telephone and shall disclose the availability of the
vehicle inquired about, the manufacturers suggested retail price of the vehicle
and all requested options and the price at which the Dealer will sell/lease the
vehicle with all requested options to the Potential Purchaser. In addition,
Dealer shall provide information as to all other terms and costs required by law
to be disclosed to prospective purchasers (the "Dealer Information").
11. DEALER'S COVENANTS.
------------------
Dealer hereby covenants and agrees that all of the terms and
conditions contained in Dealer Information transmitted to consumer shall remain
in full force and effect and be binding upon Dealer for a period of seven (7)
days after its transmittal provided the identified vehicle remains available for
sale.
12. CONFIDENTIALITY.
---------------
ABT agrees to treat all records and other information provided by
Dealer, with respect to terms of sale, financing or leasing of motor vehicles,
confidential, except that this information may be transmitted to consumers
making inquiries concerning the terms of purchase, financing or leasing of motor
vehicle(s). Dealer, on behalf of itself and its employees, agrees to keep all
information with respect to ABT's services confidential and, without the
previous written consent of ABT, Dealer shall not impart ABT's services, or the
concept thereof, to any person or entity whatsoever other than employees of
Dealer. Notwithstanding the foregoing, if either party is required to produce
any such information by order of any government agency, court of competent
jurisdiction, or other regulatory body, it may, upon not less than five days
written notice to the other party, release required information.
13. INDEMNIFICATION.
---------------
Dealer agrees to indemnify and hold harmless ABT and its subsidiaries
and/or affiliates and their respective members, managers, directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements, and costs, including fees and expenses, arising
out of or related to any third party claim (including, but not limited to, any
claim for damages by any person or entity who purchases, leases and/or finances
a motor vehicle(s) from Dealer through the utilization of ABT's services)
resulting from the use of ABT's services provided hereunder. Dealer shall
defend and settle, at its sole cost and expense, all suits or proceedings
arising out of any of the foregoing, provided ABT gives Dealer prompt notice of
any such claim of which it learns. In all events, ABT shall have the right to
participate in the defense of any such suit or proceedings through counsel of
its own choosing. ABT shall be without liability to Dealer with respect to
anything done, or omitted to be done, in accordance with the terms of this
Agreement or instructions properly received pursuant hereto, if done in good
faith and without negligence or willful or wanton misconduct.
14. TRADE SECRETS.
-------------
(a) During the term of this Agreement, Dealer will have access to and
become acquainted with various trade secrets, consisting of formulas,
strategies, processes, computer programs, compilations of information, records,
specifications, and contractual information, all of which are owned by ABT and
regularly used in the operation of ABT's business.
(b) Dealer acknowledges and agrees that the sale or unauthorized use or
disclosure of any of ABT's trade secrets constitutes unfair competition.
15. WARRANTY LIMITATION.
-------------------
ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE OF THE SERVICES
HEREUNDER AND DEALER SPECIFICALLY WAIVES ALL WARRANTEES, EXPRESSED OR IMPLIED,
ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED UNDER THIS
AGREEMENT BY ABT. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS
OF BUSINESS PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR
DAMAGES, OR FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. TRADEMARKS AND SERVICE MARKS.
----------------------------
Any and all trademarks and service marks associated with ABT are and
shall remain the exclusive property of ABT. If during the term of this
Agreement, a trademark registration is filed by ABT, all rights belong to ABT
who shall also bear the costs for such registration. Dealer is permitted to use
the trademark and service mark only as set forth herein or only as authorized in
writing by ABT.
17. ADVERTISEMENTS.
--------------
In all new car display print advertisements which are equal to or
greater than 14 column inches, Dealer shall also include ABT's service mark as
well as its Internet address in one of the formats depicted in Exhibit A such
that the ABT service mark and Internet address are clearly legible.
18. NOTICES.
-------
All notices and requests in connection with this Agreement shall be
given or made upon the respective parties in writing and shall be deemed as
given on the day it is deposited in the U.S. mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement or to such address as the party to receive the notice or request
so designates by written notice to the other.
19. ASSIGNMENT.
----------
This Agreement and the rights and duties hereunder shall not be
assignable by the Dealer except upon written consent of ABT. This Agreement and
the rights and duties hereunder shall be assignable by ABT.
20. INDEPENDENT CONTRACTORS.
-----------------------
The relationship between ABT and Dealer created by this Agreement
shall be that of independent contractor. Nothing contained in this Agreement
shall be construed as creating or constituting a partnership, agency, or joint
venture between ABT and Dealer.
21. NO WAIVER.
---------
The failure of either party to exercise in any respect any right
provided for herein shall not be deemed a waiver of any right hereunder.
22. SEVERABILITY.
------------
If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, such determination shall in no way alter or impair the
validity, legality and enforceability of the remaining provisions of this
Agreement.
23. GOVERNING LAW AND JURISDICTION.
------------------------------
This Agreement and the performance hereunder shall be governed and
construed in accordance with the laws of the State of California. Any dispute
or claim arising between the parties hereto shall be brought in a court of
competent jurisdiction located in the County of Orange in the State of
California and the parties hereto agree to jurisdiction in California.
-2-
24. OTHER AGREEMENTS.
----------------
This Agreement supersedes any and all agreements, either oral or
written, between the parties and contains all of the representations, covenants,
and agreements between the parties with respect to the rendering of the services
described in this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
contained in this Agreement, and that no other agreement, statement, or promise
not contained in this Agreement will be valid or binding. Any modification of
this Agreement will be effective only if it is in a writing signed by the party
to be charged.
Auto-By-Tel Marketing Corporation, Dealer: ((Dealer_Corp))
a Delaware Corporation
By:___________________________ By:__________________________________________
Name: Mr. Pete Ellis Name: ((Sirname)) ((Dlr_First)) ((Dlr_Last))
Title: President Title: ((Dlr_Title))
-3-
EXHIBIT 10.13(c)
ABT SUBSCRIPTION AGREEMENT
THIS AGREEMENT made this ((Ck_RcvdTxt)), by and between Auto-By-Tel Marketing
Corporation, a Delaware Corporation, with its principal place of business at
2711 E. Coast Highway, Corona Del Mar, California 92625 ("ABT"), and , a(n)
((STTxt)) ((Entity)), with its principal place of business at ((Bill_Addr)),
((City)), ((ST)) ((Dlr_Zip)). ("Dealer").
WHEREAS ABT is in the business of locating persons interested in purchasing or
leasing automobiles or trucks primarily through electronic media ("Potential
Purchasers");
WHEREAS Dealer is a dealer of automobiles and/or trucks who wishes to
participate in a program where ABT provides certain information about Potential
Purchasers to Dealer which will facilitate Dealer's sales of automobiles to
Potential Purchasers and thereby decrease marketing costs which, in turn, will
allow Dealer to offer automobiles and trucks at a competitive price;
WHEREAS ABT has invested considerable amounts of money in order to acquire
relevant information about Potential Purchasers from the Internet and Online
computer services; and
WHEREAS ABT wishes to ensure that Dealer will provide a high level of service to
Potential Purchasers provided to Dealer through their participation in this
program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, ABT and Dealer agree as follows:
1. Services to be Performed
------------------------
ABT shall provide a marketing program on the Internet and Online Services to
attract Potential Purchasers and shall forward information regarding Potential
Purchasers identified for the vehicle make subscribed and in the postal code
area assigned to Dealer.
2. Use of Services
---------------
(a) Dealer Participation. Dealer agrees to abide by ABT's Customer Service
--------------------
Standards as more fully described in Paragraph 10 below, which may be
revised from time to time. Dealer shall designate one key employee to be
provided instructions by ABT or its authorized agent. Should the
assignment of any designated key employee change, Dealer shall notify ABT.
Dealer shall be responsible for costs, if any, associated with the training
of its key employees to use ABT's services. Dealer shall sign any
necessary confidentiality agreements to protect ABT's proprietary rights.
(b) Use of System and Modifications. It is agreed to by the parties that the
-------------------------------
use of ABT's services is restricted solely to Dealer and its
designated employees and other duly authorized licensees of ABT. Dealer
shall not compete with ABT in providing the services herein discussed.
3. Equipment
---------
(a) ABT Equipment. ABT warrants that it possesses or has access to and the
-------------
right to use computer equipment and other office equipment necessary for
ABT to provide the services contemplated by this Agreement.
(b) Dealer Equipment. Dealer, at its sole cost and expense, shall provide the
----------------
computer and other office equipment necessary to use and receive the
services to be provided hereunder by ABT.
(c) Equipment Maintenance, Risk of Loss. Dealer shall maintain all of its
-----------------------------------
computer and office equipment necessary for the utilization of the services
to be provided hereunder by ABT in good and proper working order and
repair. Dealer shall assume all responsibility for loss or damage to
Dealer's equipment in the utilization of the services to be provided
hereunder by ABT.
4. Title to System
---------------
The services to be provided hereunder by ABT, together with any modifications or
improvements therein made by ABT or Dealer during the term of this Agreement, or
any extensions thereof, and all copies thereof are proprietary to ABT and title
thereto remains in ABT. All applicable rights to patents, copyrights,
trademarks and trade secrets in the System and in the name "Auto-By-Tel" and its
logo are and shall remain solely in ABT.
5. Assignment of Territory
-----------------------
Subject to the terms and conditions set forth in this Agreement, ABT hereby
grants to Dealer the exclusive, non-transferable right to use the services to be
performed by ABT as contemplated by this Agreement, within the geographic area
designated by the following postal code: and for the following make of motor
vehicles: ((Franchise)) the "Territory").
Notwithstanding the foregoing, ABT retains the right, directly or through other
dealerships, to market and use its System and services in all areas other than
Dealer's Territory, and within Dealer's Territory for all makes of motor
vehicles not listed above.
6. Subscription Fees
-----------------
(a) Dealer shall pay ABT the amount of (((Amount)) plus G.S.T. as an initial
start-up fee concurrently with Dealer's execution of this Agreement.
(b) Dealer shall pay ABT the amount of ((Monthly)), plus G.S.T. as a monthly
subscription fee which is due and payable on the first day of every month.
ABT may change this monthly subscription fee upon thirty (30) days written
notice of the increased price to the dealer.
(c) Dealer shall pay ABT an annual fee plus G.S.T. on the first anniversary
date of this Agreement and each anniversary thereafter. A notice
indicating the amount of the annual fee will be sent to the Dealer sixty
(60) days prior to the anniversary date of this Agreement.
7. Taxes
-----
Dealer shall, in addition to any other amounts payable under this Agreement, pay
all taxes - federal, provincial, local or otherwise - however designated which
are levied or imposed by reason of the services provided under this Agreement.
Without limiting the foregoing, Dealer shall promptly pay to ABT an amount equal
to any such items actually paid or required to be collected or paid by ABT.
8. Term
----
This Agreement shall be for a term of five (5) years, commencing upon the date
hereof and terminating on ((Term_DateTxt)) unless sooner terminated according to
the provisions hereof. Either party may terminate this Agreement, at their sole
option and for any reason whatsoever, at any time by providing the other party
thirty (30) days written notice. This Agreement may be terminated by ABT
immediately and without notice in the event that Dealer does not adhere to ABT's
Customer Service ,Standards, or in the event that any fees due to ABT are
outstanding more than thirty (30) days. If this Agreement is terminated prior
to the date set forth herein, the parties agree to continue to be bound to the
covenants and promises set forth in Paragraph 2b, 4, 12, 13, 15, and 22.
9. Periodic Operations Reports
---------------------------
(a) Reports. ABT shall furnish to Dealer, on a quarterly basis, an operations
-------
report which shall include the number of inquiries received by ABT from
consumers in Dealer's exclusive Territory. Dealer shall report to ABT on a
monthly basis the number and names of individuals who purchased motor
vehicles from Dealer, the number of vehicles financed and the amounts
financed and such other information as ABT may from time to time request.
(b) Duty of Care. ABT shall not be liable for any loss of data, delays and/or
------------
errors in transmitting data occurring by reason of circumstances beyond its
reasonable control or for any damages arising as a consequence thereof.
10. Customer Service Standards
--------------------------
Dealer shall relay to Potential Purchasers a full and complete response to the
Potential Purchasers' inquiries transmitted by ABT to Dealer within twenty-four
(24) hours of receipt of the inquiry from ABT, exclusive of Saturdays, Sundays
and statutory holidays, Dealer's initial response shall be by telephone and
shall disclose the availability of the vehicle inquired about, the
manufacturer's suggested retail price of the vehicle and all requested options
and the price at which Dealer will sell/lease the vehicle with all requested
options to the Potential Purchaser. In addition, Dealer shall provide
information as to all other terms and costs required by law to be disclosed to
the Potential Purchaser (the "Dealer Information").
11. Dealer's Covenants
------------------
Dealer hereby covenants and agrees that all of the terms and conditions
contained in Dealer Information transmitted to Potential Purchasers shall remain
in full force and effect and be binding upon Dealer for a period of seven (7)
days after its transmittal provided the identified vehicle remains available for
sale.
12. Confidentiality
---------------
ABT agrees to treat all records and other information provided by Dealer with
respect to terms of sale, financing or leasing of motor vehicles confidential
except that this information may be transmitted to consumers making inquiries
concerning the terms of purchase, financing or leasing of motor vehicle(s).
Dealer, on behalf of itself and its employees, agrees to keep all information
with respect to ABT's services confidential and, without the previous written
consent of ABT, Dealer shall not impart information about ABT's services, or the
concept thereof, to any person or entity whatsoever other than employees of
Dealer and Potential Purchasers. Notwithstanding the foregoing, if either party
is required to produce any such information by order of any government agency,
court of competent jurisdiction, or other regulatory body, it may, upon not less
than five days' written notice to the other party, release required information.
13. Indemnification.
---------------
Dealer agrees to indemnify and hold harmless ABT and its subsidiaries and/or
affiliates and their respective members, managers, directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgements, settlements, and costs, including fees and expenses,
arising out of or related to any third party claim (including, but not limited
to, any claim for damages by any person or entity who purchases, leases and/or
finances a motor vehicle(s) from Dealer through the utilization of ABT's
services) resulting from the use of ABT's services provided hereunder. Dealer
shall defend and settle, at its sole cost and expense, all suits or proceedings
arising out of any of the foregoing, provided ABT gives Dealer prompt notice of
any such claim of which it learns. ln all events, ABT shall have the right to
participate in the defense of any such suit or proceedings through counsel of
its own choosing. ABT shall be without liability to Dealer with respect to
anything done, or omitted to be done, in accordance with the terms of this
Agreement or instructions properly received pursuant hereto, if done in good
faith and without negligence or wilful or wanton misconduct.
14. Trade Secrets
-------------
(a) During the term of this Agreement, Dealer will have access to and become
acquainted with various trade secrets, consisting of formulas, strategies,
processes, computer programs, compilations of information, records,
specifications, and contractual information, all of which are owned by ABT
and regularly used in the operation of ABT's business.
(b) Dealer acknowledges and agrees that the sale or unauthorized use or
disclosure of any of ABT's trade secrets constitutes a breach of section 12
of this Agreement.
15. Warranty Limitation
-------------------
ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE OF THE SERVICES HEREUNDER AND
DEALER SPECIFICALLY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, ARISING OUT OF
OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT BY ABT.
SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS OF BUSINESS
PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES OR
FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
16. Trademarks and Services Marks
-----------------------------
Any and all trademarks and service marks associated with ABT are and shall
remain the exclusive property of ABT. If during the term of this Agreement, a
trademark registration is filed by ABT, Dealer acknowledges that all fights to
such trademark belong to ABT who shall also bear the costs of such registration.
Dealer is permitted to use such trademark and service marks only as set forth
herein or only as authorized in writing by ABT.
17. Advertisements
--------------
In all print advertisements for Dealer automobiles, services, or other goods
which are equal to or greater than fourteen (14) column inches, Dealer shall
also include ABT's service mark as well as its Internet address in one of the
formats depicted in Rider A such that the ABT service mark and Internet address
are clearly legible.
18. Notices
-------
All notices and requests in connection with this Agreement shall be given or
made upon the respective parties in writing and shall be deemed as given on the
day it is deposited in the Canadian or U.S. mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement or to such address as the party to receive the notice or request
so designates by written notice to the other.
19. Assignment
----------
This Agreement and the rights and duties hereunder shall not be assignable by
Dealer except upon written consent of ABT. This Agreement and the rights and
duties hereunder may be assigned by ABT at its sole discretion.
20. Independent Contractors
-----------------------
The relationship between ABT and Dealer created by this Agreement shall be that
of independent contractor. Nothing contained in this Agreement shall be
construed as creating or constituting a partnership, agency, or joint venture
between ABT and Dealer.
21. No Waiver
---------
The failure of either party to exercise in any respect any right provided for
herein shall not be deemed a waiver of any right hereunder.
22. Severability
------------
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, this shall in no way alter or impair the validity, legality and
enforceability of the remaining provisions of this Agreement.
23. Governing Law and Jurisdiction
------------------------------
This Agreement and the performance hereunder shall be governed and construed in
accordance with the laws of the State of California. Any dispute or claim
arising between the parties hereto shall be brought in a court of competent
jurisdiction located in the County of Orange in the State of California and the
parties hereto agree to attorn to the jurisdiction of the courts of California.
24. Other Agreements
----------------
This Agreement supersedes any and all agreements, either oral or written,
between the parties and contains all of the representations, covenants, and
agreements between the parties with respect to the rendering of the services
described in this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
contained in this Agreement, and that no other agreement, statement, or promise
not contained in this Agreement will be valid or binding. Any modification of
this Agreement will be effective only if it is in writing signed by the party to
be charged.
Auto-By-Tel Marketing Corporation,
a Delaware Corporation DEALER: ((DEALER_CORP))
Per: Per:
------------------------------- -------------------------------
Name: Pete Ellis Name: ((Sirname)) ((Dlr_Flrst))((Dir_Last))
Title: President Title: ((Dir_Title))
canagr.doc
EXHIBIT 10.13(d)
ABT SUBSCRIPTION AGREEMENT
--------------------------
THIS AGREEMENT made this ((Ck_RcvdTxt)). by and between Auto-By-Tel Marketing
Corporation, a Delaware Corporation, with its principal place of business at
2711 E. Coast Highway, Corona Del Mar, California 92625 ("ABT"), and
((Dealer_Corp)), a(n) ((STTxt)) ((Entity)), d.b.a.((-Dealer_DBA.)), with its
principal place of business at ((Bill_Addr.)), ((City)) ((ST)) ((Dlr_zip)).
RECITALS
--------
WHEREAS, ABT is in the business of operating advertising programs primarily
through electronic media;
WHEREAS, Dealer is a dealer of automobiles and/or trucks who wishes to
participate in said program;
WHEREAS, ABT has invested considerable amounts of money in order to operate the
program on the Internet and on-line computer services; and
WHEREAS, Dealer agrees to provide a high level of service to members of the
public reached through the program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, ABT AND DEALER AGREE AS FOLLOWS:
1. Services to be Performed.
------------------------
ABT shall provide an advertising program on the Internet and Online
Services to the public and shall forward information regarding inquiries made
for the make subscribed and in the zip code area subscribed to by Dealer.
2. Use of Services.
---------------
(a) Dealer Participation. Dealer agrees to abide by ABT's Customer
--------------------
Service Standards as more fully described in Paragraph 10 below, which may be
revised from time to time. Dealer shall designate one key employee to be
provided instructions by ABT or its authorized agent. Should the assignment of
any designated key employee change, Dealer shall notify ABT. Dealer shall be
responsible for costs, if any, associated with the training of its key employees
to use ABT's services. Dealer shall sign any necessary confidentiality
agreements to protect ABT's rights.
(b) Use of System and Modifications. It is agreed to by the parties that
-------------------------------
the use of ABT's program is restricted solely to Dealer and its designated
employees and other duly authorized licensees of ABT. Dealer shall not compete
with ABT in providing the services herein discussed.
3. Equipment.
---------
(a) ABT Equipment. ABT warrants that it possesses or has access to and
-------------
the right to use computer equipment and other office equipment necessary
for ABT to perform its services contemplated by this Agreement.
(b) Dealer Equipment. Dealer, at its sole cost and expense, shall provide
----------------
the computer and other office equipment necessary to use and receive the
services to be provided hereunder by ABT.
(c) Equipment Maintenance, Risk of Loss. Dealer shall maintain all of
-----------------------------------
their computer and office equipment necessary for the utilization of the
services to be provided hereunder by ABT in good and proper working order and
repair. Dealer shall assume all responsibility for loss or damage to Dealer's
equipment in the utilization of the services to be provided hereunder by ABT.
4. Title to System.
---------------
The services to be provided hereunder by ABT, together with any
modifications and/or improvements therein made by ABT or Dealer during the term
of this Agreement, or any extensions thereof, and all copies thereof are
proprietary to ABT and title thereto remains in ABT. All applicable rights to
patents, copyrights, trademarks and trade secrets in the System and in the name
"Auto-By-Tel" and its logo are and shall remain solely in ABT.
5. Assignment of Territory.
-----------------------
(a) Subject to the terms and conditions set forth in this Agreement,
Dealer subscribes to utilize the program within the geographic area designated
by the following zip codes: ((Territory)) and for the following make of motor
vehicles: ((Franchise)) (the "Territory").
(b) Notwithstanding the foregoing, ABT retains the right to reassign or
revise Dealers zip code area and subscription fees as necessary to accommodate
entry of additional dealers into the program .
6. Subscription Fees.
------------------
Subject to the provisions of paragraph 5. b:
(a) Dealer shall pay ABT ((Amt_Text)) dollar(s) ((Amount)) as an initial
start-up fee concurrently with Dealer's execution of this Agreement.
(b) Dealer shall pay ABT the amount of ((Monthly)). as a monthly
subscription fee which is due and payable on the first day of every
month. ABT may change this monthly subscription fee upon thirty (30)
days written notice of the increased price to the dealer.
(c) Dealer shall pay ABT an annual fee on the first anniversary date of
this Agreement and each anniversary thereafter. A notice indicating
the amount of the annual fee will be sent to the Dealer 60 days prior
to the anniversary date of this Agreement.
7. Taxes.
-----
Dealer shall, in addition to any other amounts payable under this
Agreement, pay all taxes - federal, state, local or otherwise - however
designated which are levied or imposed by reason of the services provided under
this Agreement. Without limiting the foregoing, Dealer shall promptly pay to
ABT an amount equal to any such items actually paid or required to be collected
or paid by ABT.
8. Term.
----
This Agreement shall be for a term of five (5) years, commencing upon the
date hereof and terminating on ((Term_DateTxt)) unless sooner terminated or
revised according to the provisions hereof. Either party may terminate this
Agreement, at their sole option and for any reason whatsoever, at any time by
providing the other party 30 days written notice. This Agreement may be
terminated by ABT immediately and without notice in the event that Dealer does
not adhere to ABT's Customer Service Standards or in the event that any fees due
ABT are outstanding more than 30 days. If this Agreement is terminated prior to
the date set forth herein, the parties agree to continue to be bound to the
covenants and promises set forth in paragraphs 2b, 4, 12, 13, 15, and 22.
9. Periodic Operations Reports.
---------------------------
(a) Reports. ABT shall furnish to Dealer, on a quarterly basis, an
-------
operations report which shall include the number of inquiries received by
ABT from Dealer's zip code area. Dealer shall report to ABT on a monthly
basis the number and names of Potential Purchasers who purchased motor vehicles
from Dealer, the number of vehicles financed and the amounts financed and such
other information as ABT may from time to time request.
(b) Duty of Care. ABT shall not be liable for any loss of data, delays
-------------
and/or errors in transmitting data occurring by reason of circumstances beyond
its reasonable control or for any damages arising as a consequence thereof.
10. Customer Service Standards.
--------------------------
Dealer shall relay full and complete response to the inquiries transmitted
by ABT to Dealer within 24 hours of receipt of the inquiry from ABT, exclusive
of Saturdays, Sundays and holidays recognized by the federal government.
Dealer's initial response shall be by telephone and shall disclose the
availability of the vehicle inquired about, the manufacturers suggested retail
price of the vehicle and all requested options and the price at which the Dealer
will sell the vehicle with all requested options. In addition, Dealer shall
provide information as to all other terms and costs required by law to be
disclosed (the "Dealer Information").
11. Dealer's Covenants.
------------------
Dealer hereby covenants and agrees that all of the terms and conditions
contained in Dealer Information transmitted shall remain in full force and
effect and be binding upon Dealer for a period of seven (7) days after its
transmittal provided the identified vehicle remains available for sale.
12. Confidentiality.
---------------
ABT agrees to treat all records and other information provided by Dealer,
with respect to terms of sale, financing or leasing of motor vehicles,
confidential. Dealer, on behalf of itself and its employees, agrees to keep all
information with respect to ABT's services confidential and, without the
previous written consent of ABT, Dealer shall not impart ABT's services, or the
concept thereof, to any person or entity whatsoever other than employees of
Dealer. Notwithstanding the foregoing, if either party is required to produce
any such information by order of any government agency, court of competent
jurisdiction, or other regulatory body, it may, upon not less than five days
written notice to the other party, release required information.
13. Indemnification.
---------------
Dealer agrees to indemnify and hold harmless ABT and its subsidiaries
and/or affiliates and their respective members, managers, directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements, and costs, including fees and expenses, arising
out of or related to any third party claim (including, but not limited to, any
claim for damages by any person or entity who purchases, leases and/or finances
a motor vehicle(s) from Dealer through the utilization of ABT's services)
resulting from the use of ABT's services provided hereunder. Dealer shall
defend and settle, at its sole cost and expense, all suits or proceedings
arising out of any of the foregoing, provided ABT gives Dealer prompt notice of
any such claim of which it learns. In all events, ABT shall have the right to
participate in the defense of any such suit or proceedings through counsel of
its own choosing. ABT shall be without liability to Dealer with respect to
anything done, or omitted to be done, in accordance with the terms of this
Agreement or instructions properly received pursuant hereto, if done in good
faith and without negligence or willful or wanton misconduct.
14. Trade Secrets.
-------------
(a) During the term of this Agreement, Dealer will have access to and
become acquainted with various trade secrets, consisting of formulas,
strategies, processes, computer programs, compilations of information,
records, specifications, and contractual information, all of which are
owned by ABT and regularly used in the operation of ABT's business.
(b) Dealer acknowledges and agrees that the sale or unauthorized use or
disclosure of any of ABT's trade secrets constitutes unfair
competition.
15. Warranty Limitation.
-------------------
ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE OF THE SERVICES HEREUNDER
AND DEALER SPECIFICALLY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, ARISING OUT
OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT BY
ABT. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS OF BUSINESS
PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, OR
FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
16. Trademarks and Service Marks.
----------------------------
Any and all trademarks and service marks associated with ABT are and shall
remain the exclusive property of ABT. lf during the term of this Agreement, a
trademark registration is filed by ABT, all rights belong to ABT who shall also
bear the costs for such registration. Dealer is permitted to use the trademark
and service mark only as set forth herein or only as authorized in writing by
ABT.
17. Advertisements.
--------------
In all new car display print advertisements which are equal to or greater
than 14 column inches, Dealer shall also include ABT's service mark as well as
its Internet address in one of the formats depicted in Exhibit A such that the
ABT service mark and Internet address are clearly legible.
18. Notices.
-------
All notices and requests in connection with this Agreement shall be given
or made upon the respective parties in writing and shall be deemed as given on
the day it is deposited in the U.S. mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement or to such address as the party to receive the notice or request
so designates by written notice to the other.
19. Assignment.
----------
This Agreement and the rights and duties hereunder shall not be assignable
by the Dealer except upon written consent of ABT. This Agreement and the rights
and duties hereunder shall be assignable by ABT.
20. Independent Contractors.
-----------------------
The relationship between ABT and Dealer created by this Agreement shall be
that of independent contractor. Nothing contained in this Agreement shall be
construed as creating or constituting a partnership, agency, or joint venture
between ABT and Dealer.
21. No Waiver.
---------
The failure of either party to exercise in any respect any right provided
for herein shall not be deemed a waiver of any right hereunder.
22. Severability.
------------
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, such determination shall in no way alter or impair the validly,
legality and enforceability of the remaining provisions of this Agreement.
23. Governing Law and Jurisdiction.
------------------------------
This Agreement and the performance hereunder shall be governed and
construed in accordance with the laws of the State of Texas. Any dispute or
claim arising between the parties hereto shall be brought in a court of
competent jurisdiction located in the County of Travis in the State of Texas and
the parties hereto agree to jurisdiction in Texas.
24. Other Agreements.
----------------
This Agreement supersedes any and all agreements, either oral or written,
between the parties and contains all of the representations, covenants, and
agreements between the parties with respect to the rendering of the services
described in this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
contained in this Agreement, and that no other agreement, statement, or promise
not contained in this Agreement will be valid or binding. Any modification of
this Agreement will be effective only if it is in a writing signed by the party
to be charged.
Auto-By-Tel Marketing Corporation, a Delaware Corporation Dealer:
((Dealer_Corp))
By:____________________________ By:_________________________________________
Name: Mr. Pete Ellis Name: ((Surname)) ((Dir_First)) ((Dir_Last))
Title: President Title: ((Dir_Title))
abt-tx.doc
EXHIBIT 10.13(e)
ABT SUBSCRIPTION AGREEMENT
--------------------------
THIS AGREEMENT made this ((Ck_RcvdTxt)) by and between Auto-By-Tel Marketing
Corporation, a Delaware Corporation, with its principal place of business at
18872 MacArthur Boulevard, Second Floor, Irvine CA 92612-1400 ("ABT"), and
((Dealer_Corp)), a(n) ((STTxt)) ((Entity)), d.b.a. ((Dealer_DBA)), with its
principal place of business at ((Bill_Addr)), ((City)) ((ST)) ((Dlr_Zip)).
RECITALS
--------
WHEREAS, ABT is in the business of locating persons interested in purchasing
and/or leasing automobiles and/or trucks primarily through electronic media
("Potential Purchasers"):
WHEREAS, Dealer is a franchised dealer of new automobiles and/or trucks who
wishes to participate in a program where ABT provides certain information about
Potential Purchasers to Dealer which will facilitate Dealer's sales of
automobiles to Potential Purchasers and thereby decrease marketing costs which,
in turn, will allow Dealer to offer automobiles and trucks at a competitive
price;
WHEREAS, ABT has invested considerable amounts of money in order to acquire
relevant information about Potential Purchasers from the Internet and on-line
computer services; and
WHEREAS, ABT wishes to ensure that Dealer will provide a high level of service
to Potential Purchasers provided to the Dealer through their participation in
this program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, ABT AND DEALER AGREE AS FOLLOWS:
1. SERVICES TO BE PERFORMED.
------------------------
ABT shall provide a marketing program on the Internet and Online Services to
attract Potential Purchasers and shall forward information regarding the
Potential Purchasers identified for the make subscribed and in the zip code area
subscribed to the Dealer.
2. USE OF SERVICES.
---------------
(a) Dealer Participation. Dealer agrees to abide by ABT's Customer Service
--------------------
Standards as more fully described in Paragraph 10 below, which may be revised
from time to time by ABT. Dealer shall designate one key employee to be
provided instructions by ABT or its authorized agent. Dealer shall notify ABT
within ten (10) days of any change in the assignment of any designated key
employee. Dealer shall be responsible for costs, if any, associated with the
training of its key employees to use ABT's services. Dealer shall promptly sign
any confidentiality agreements submitted by ABT to protect ABT's proprietary
rights. ABT shall notify Dealer in writing of any revisions or additions to the
Customer Service Standards, and such revisions shall take effect immediately
upon Dealer's receipt thereof. Without limiting the generality of the
foregoing, Dealer acknowledges that Auto-By-Tel will institute a financing
program whereby customers may receive low-cost financing from sources provided
by Auto-By-Tel through its web site (the "Financing Arrangements"). Dealer
agrees with ABT that low-cost Financing Arrangements pursuant to which customers
would (i) receive a financing proposal in conjunction with their receipt of a
vehicle price quote, and (ii) close both the vehicle acquisition and financing
quickly through Dealer, would be viewed by customers as an improvement in the
Auto-By-Tel program, consequently increasing the attractiveness of the ABT
program and its value to Dealer. Dealer agrees to cooperate fully with the
Financing Arrangements instituted by ABT through its web site, including without
limitation entering into customary closing administration arrangements with
finance companies as requested by ABT, and to take such actions as reasonably
requested by such finance companies or ABT to ensure that customers receive a
high level of service and satisfaction in connection with the Financing
Arrangements. After ABT commences the Financing Arrangements, Dealer
acknowledges that changes in the Customer Services Guidelines may from time to
time pertain to such Financing Arrangements.
(b) Use of System and Modifications. It is agreed to by the parties that the
-------------------------------
use of ABT's services is restricted solely to Dealer and its designated
employees and other duly authorized licensees of ABT. Dealer shall not compete
with ABT in providing the services herein discussed.
3. EQUIPMENT.
---------
(a) ABT Equipment. ABT warrants that it possesses or has access to and the
-------------
right to use computer equipment and other office equipment necessary for ABT to
perform its services contemplated by this Agreement.
(b) Dealer Equipment. Dealer, at its sole cost and expense, shall provide
----------------
the computer and other office equipment specified from time to time by ABT to
use and receive the services to be provided hereunder by ABT.
(c) Equipment Maintenance, Risk of Loss. Dealer shall maintain all of their
-----------------------------------
computer and office equipment in good and proper working order and repair.
Dealer shall assume all responsibility for loss or damage to Dealer's equipment
in the utilization of the services to be provided hereunder by ABT.
4. TITLE TO SYSTEM, TRADEMARKS.
---------------------------
The services to be provided hereunder by ABT, together with any
modifications and/or improvements therein made by ABT or Dealer during the term
of this Agreement, or any extensions thereof, and all copies thereof are
proprietary to ABT and title thereto remains in ABT. All applicable rights to
patents, copyrights, trademarks and trade secrets in the System and in the name
"Auto-By-Tel" and its logo are and shall remain solely in ABT. Any and all
trademarks and service marks associated with ABT are and shall remain the
exclusive property of ABT. If, during the term of this Agreement, a trademark
registration is filed by ABT, all rights belong to ABT who shall also bear the
costs for such registration. Dealer is permitted to use the trademark and
service mark only as set forth herein or only as authorized in writing by ABT.
5. ASSIGNMENT OF TERRITORY.
-----------------------
Subject to the terms and conditions set forth in this Agreement, ABT hereby
grants to Dealer the non-transferable right to use the services to be performed
by ABT, as contemplated by this Agreement, within the geographic area designated
by the following zip codes: ((Territory)) and for the following make of motor
vehicles: ((Franchise)) (the "Territory"). ABT may change the Dealer's Territory
upon thirty (30) days written notice.
Notwithstanding the foregoing, ABT retains the right, directly or through
other dealerships, to market and use its System and services in all areas other
than Dealer's Territory, and within Dealer's Territory for all makes of motor
vehicles not listed above.
6. SUBSCRIPTION FEES.
-----------------
(a) Dealer shall pay ABT ((Amt_Text)) (((Amount))) as an initial start-up
fee concurrently with Dealer's execution of this Agreement.
(b) Dealer shall pay ABT the amount of ((Nu_Fee)) as a monthly subscription
fee which is due and payable on the first day of every month. ABT may
change this monthly subscription fee upon thirty (30) days written
notice of the increased price to the dealer.
(c) Dealer shall pay ABT an annual fee on the first anniversary date of this
Agreement and each anniversary thereafter. A notice indicating the
amount of the annual fee will be sent to the Dealer prior to the
anniversary date of this Agreement.
(d) If ABT terminates this Agreement pursuant to Section 8(b)(ii) for no
reason or Dealer terminates this Agreement pursuant to Section
8(c)(iii), ABT shall refund a prorated amount of fees paid under this
Agreement for the remaining portion of the period with respect to which
such fees had been paid, except that the monthly fees due for the month
in which the Agreement is terminated shall not be refunded or prorated.
(The startup fee shall be deemed to have been paid for the first year
this Agreement is in effect.) In no other circumstances shall any
amounts paid under this Agreement be refundable.
7. TAXES.
-----
Dealer shall, in addition to any other amounts payable under this Agreement,
pay all taxes - federal, state, local or otherwise, excluding income taxes
attributable to the income of ABT - however designated which are levied or
imposed by reason of the services provided under this Agreement. Without
limiting the foregoing, Dealer shall promptly pay to ABT an amount equal to any
such items actually paid or required to be collected or paid by ABT.
8. TERM AND TERMINATION.
--------------------
(a) This Agreement shall be for a term of five (5) years unless terminated
earlier pursuant to this Section 8.
(b) ABT may terminate this Agreement:
(i) immediately if Dealer does not adhere to its obligations under
Sections 2(a) and 10, or if any fees due ABT pursuant to Section 6
are outstanding more than thirty (30) days, or if any amount payable
to ABT under Sections 7 or 13 are outstanding more than thirty (30)
days after ABT makes a written request therefor, or any other breach
by Dealer of this Agreement is not cured within ten (10) days after
written notification by ABT of such breach; or
(ii) at any other time, for any reason or for no reason, upon thirty (30)
days written notice to the Dealer.
(c) Dealer may terminate this Agreement:
(i) immediately, if an order for liquidation against ABT is entered and
not stayed in a bankruptcy proceeding;
(ii) immediately, if ABT is guilty of willful misconduct in the
performance of its duties under this Agreement;
(iii) upon thirty (30) days written notice delivered within ten (10) days
of the effective date of any shrinkage of Dealer's Territory
pursuant to Section 5; or
(iv) at any other time, in its sole discretion, upon thirty (30) days
written notice to ABT.
If this Agreement is terminated prior to the date set forth herein, the parties
agree to continue to be bound to the covenants and promises set forth in
paragraphs 2b, 4, 12, 13, 14, 15, & 21.
9. PERIODIC OPERATIONS REPORTS.
---------------------------
(a) Reports. ABT shall furnish to Dealer, on a quarterly basis, an
-------
operations report which shall include the number of inquiries received by ABT
from Potential Purchasers in Dealer's Territory. Dealer shall report to ABT on a
monthly basis the number and names of Potential Purchasers who purchased motor
vehicles from Dealer, the number of vehicles financed and the amounts financed
and such other information as ABT may from time to time request.
(b) Duty of Care. ABT shall not be liable for any loss of data, delays
------------
and/or errors in transmitting data occurring for any reason or for any damages
arising as a consequence thereof.
10. CUSTOMER SERVICE STANDARDS.
--------------------------
In addition to those obligations set out in 2(a) above, Dealer shall relay
to Potential Purchasers a full and complete response to the Potential
Purchasers' inquiries transmitted by ABT to Dealer within 24 hours of receipt of
the inquiry from ABT. Dealer's initial response shall be by telephone and shall
disclose (i) the availability of the vehicle inquired about, (ii) the
manufacturer's suggested retail price of the vehicle, (iii) all requested
options, (iv) the price at which the Dealer will sell/lease the vehicle with all
requested options to the Potential Purchaser, and (v) all other terms and costs
required by law to be disclosed to prospective purchasers (all such information,
the "Dealer Information"). In order to improve the services offered by ABT while
maintaining uniform delivery of such services, ABT may, from time to time, amend
the Customer Service Standards, or impose additional Customer Service Standards
upon thirty (30) days notice to Dealer. Dealer acknowledges that maintenance of
the ABT Customer Service Standards is crucial to the value of ABT's services and
agrees to adopt such amendments or additions, even though they may require more
work or expense to implement. ABT agrees that it will not impose amendments or
additions unless they are applied to all Dealers.
11. DEALER'S COVENANTS.
------------------
Dealer hereby covenants and agrees that all of the terms and conditions
contained in Dealer Information transmitted to a Potential Purchaser shall
remain in full force and effect and be binding upon Dealer for a period of seven
(7) days after its transmittal provided the identified vehicle still remains
available for sale, and Dealer agrees to include a statement to such effect in
the Dealer Information.
12. CONFIDENTIALITY.
---------------
ABT agrees to treat all records and other information provided by Dealer,
with respect to terms of sale, financing or leasing of motor vehicles,
confidential, except that this information may be transmitted to consumers
making inquiries concerning the terms of purchase, financing or leasing of motor
vehicle(s). Dealer, on behalf of itself and its employees, agrees to keep all
information with respect to ABT's services confidential and, without the
previous written consent of ABT, Dealer shall not impart ABT's services, or the
concept thereof, to any person or entity whatsoever other than employees of
Dealer. Notwithstanding the foregoing, if either party is required to produce
any such information by order of any government agency, court of competent
jurisdiction, or other regulatory body, it may, upon not less than five days
written notice to the other party, release required information. During the term
of this Agreement, Dealer will have access to and become acquainted with various
trade secrets, consisting of formulas, strategies, processes, computer programs,
compilations of information, records, specifications, and contractual
information, all of which are owned by ABT and regularly used in the operation
of ABT's business. Dealer acknowledges and agrees that it will keep such trade
secrets confidential, and the sale or unauthorized use or disclosure of any of
ABT's trade secrets constitutes theft and will greatly damage ABT.
13. INDEMNIFICATION.
---------------
Dealer agrees to indemnify and hold harmless ABT and its subsidiaries
and/or affiliates and their respective members, managers, directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements, and costs, including fees and expenses, arising
out of or related to any third party claim (including, but not limited to, any
claim for damages by any person or entity who purchases, leases and/or finances
a motor vehicle(s) from Dealer through the utilization of ABT's services)
resulting from the use of ABT's services provided hereunder. Dealer shall defend
and settle, at its sole cost and expense, all suits or proceedings arising out
of any of the foregoing, provided ABT gives Dealer prompt notice of any such
claim of which it learns. In all events, ABT shall have the right to participate
in the defense of any such suit or proceedings through counsel of its own
choosing. ABT shall be without liability to Dealer with respect to anything
done, or omitted to be done, in accordance with the terms of this Agreement or
instructions properly received pursuant hereto, if done in good faith and
without gross negligence or willful or wanton misconduct.
14. EXCLUSIVITY.
-----------
Dealer acknowledges that the value to Dealer of this agreement is based on
the unique package of services marketed to automobile customers by ABT and ABT's
reputation for delivering such services on a consistent basis. Dealer agrees
that certain key elements of the ABT package of services are: (i) electronic
transmission of customer purchase or lease requests; (ii) rapid response by
dealers to consumer pricing or lease pricing requests, including immediate
telephone contact with upfront, firm pricing provided over the phone on such
call; (iii) customer paperwork completed or nearly completed prior to customer
arrival at the dealership for pickup so as to ensure the customer spends as
little time as possible at the dealership for pickup; and (iv) Dealer training
and support to implement the ABT package of services and to maintain the style
and reputation of the ABT package of services (collectively the "Key Elements").
Dealer acknowledges that ABT has spent, and will spend, considerable time and
money developing its package of services and training Dealer to deliver such
services in a consistent way which maintains ABT's distinctive market presence
and reputation. Accordingly, Dealer agrees that during the Term of this
Agreement (and for one (1) year thereafter if this Agreement is terminated
unless it is terminated by the Dealer pursuant to section 8(c)(iii)), Dealer and
its affiliates will not, directly or indirectly, participate with any third
party in any arrangement or agreement which involves any or all of the Key
Elements, and will not, directly or indirectly, participate with any third party
in any arrangement or agreement which involves any or all of the Key Elements,
and will not participate in any pricing, credit or financing, insurance or
information service involving or made available on the Internet, online or by
other electronic means. Without contradicting the foregoing, Dealer may
establish and maintain its own web site and/or participate in any factory direct
program.
Notwithstanding any other provisions of this Agreement, in the event Dealer
breaches this Section 14, the provisions of this Section shall remain in full
force and effect for one (1) year after such breach is cured. Dealer
acknowledges that the provisions of this Section 14 were a material inducement
to ABT in entering into this Agreement, and that ABT would not have entered into
this Agreement with Dealer in the absence of such provisions.
Dealer acknowledges and agrees that compliance with the provisions of
Sections 12 and 14 is necessary to protect the business and good will of ABT,
and that any breach of Sections 12 or 14 will result in irreparable and
continuing damage to ABT, for which money damages may not provide adequate
relief. Accordingly, Dealer agrees that during the "Exclusivity Period" (as
defined below), Dealer and its affiliates will not, directly or indirectly,
participate with any third party in any arrangement or agreement which involves
any or all of the Key Elements, and will not participate in any pricing, credit
or financing, insurance or information service involving or made available on
the Internet, online or by other electronic means. For purposes of this Section
14, the "Exclusivity Period" commences on the date of this Agreement, and
terminates one year after the date of termination; provided, however, that if
-----------------
this Agreement is terminated any time after the first anniversary of the date
hereof, then the Exclusivity Period terminates six months after the date of
termination; provided, further, however, that if this Agreement is terminated by
--------------------------
Dealer pursuant to Section 8(c)(iii) hereof, then the Exclusivity Period
terminates on the date of termination of the Agreement.
15. WARRANTY LIMITATION.
-------------------
ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE OF THE SERVICES HEREUNDER
AND DEALER SPECIFICALLY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED ARISING OUT
OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT BY
ABT. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS OF BUSINESS
PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, OR
FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
16. ADVERTISEMENTS.
--------------
From time to time, ABT may provide Dealer with camera-ready and other
logos, trademarks, artwork and materials for the limited purpose of inclusion,
at Dealer's option, within Dealer print and television advertisements to promote
the association of Dealer with the ABT program. ABT shall grant Dealer a
revocable, limited license to use such materials for such limited purposes, and
Dealer shall use such materials in no other manner. Any such materials shall
remain at all times the property of ABT, they shall be returned upon request,
and the limited license herein granted may be revoked at any time by written
notice to Dealer.
17. NOTICES.
-------
All notices and requests in connection with this Agreement shall be given
or made upon the respective parties in writing and shall be deemed as given on
the day it is deposited in the U.S. mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement or to such address as the party to receive the notice or request
so designates by written notice to the other.
18. ASSIGNMENT.
----------
This Agreement and the rights and duties hereunder shall not be assignable
by the Dealer except upon written consent of ABT. This Agreement and the rights
and duties hereunder shall be assignable by ABT.
19. INDEPENDENT CONTRACTORS.
-----------------------
The relationship between ABT and Dealer created by this Agreement shall be
that of independent contractor. Nothing contained in this Agreement shall be
construed as creating or constituting a partnership, agency, or joint venture
between ABT and Dealer.
20. NO WAIVER.
---------
The failure of either party to exercise in any respect any right provided
for herein shall not be deemed a waiver of any right hereunder.
21. SEVERABILITY, GOVERNING LAW AND JURISDICTION.
--------------------------------------------
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, such determination shall in no way alter or impair the validly,
legality and enforceability of the remaining provisions of this Agreement. This
Agreement and the performance hereunder shall be governed and construed in
accordance with the laws of the State of California. Any dispute or claim
arising between the parties hereto shall be brought in a court of competent
jurisdiction located in the County of Orange in the State of California and the
parties hereto agree to jurisdiction in California.
22. COOPERATION.
-----------
Upon the request of ABT, Dealer agrees to confirm in writing, in form
satisfactory to ABT and provided by ABT at its own expense, any amendment,
modification, change in original terms or other action which alters the terms of
this Agreement and which was taken or initiated by ABT pursuant to rights
granted to, or reserved by, ABT hereunder.
Page 2
23. OTHER AGREEMENTS.
----------------
This Agreement supersedes any and all agreements, either oral or written,
between the parties and contains all of the representations, covenants, and
agreements between the parties with respect to the rendering of the services
described in this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
contained in this Agreement, and that no other agreement, statement, or promise
not contained in this Agreement will be valid or binding. Any modification of
this Agreement will be effective only if it is in a writing signed by the party
to be charged.
Auto-By-Tel Marketing Corporation
By: _____________________________________________
Name: Peter Ellis
Title: President
Dealer: ((Dealer_Corp))
By: _______________________________________________
Name: ((Dlr_First)) ((Dlr_Last))
Title: ((Dlr_Title))
EXHIBIT 10.13(f)
ABT SUBSCRIPTION AGREEMENT
--------------------------
THIS AGREEMENT made this ((Ck_RcvdTxt)) by and between Auto-By-Tel Marketing
Corporation, a Delaware Corporation, with its principal place of business at
18872 MacArthur Boulevard, Second Floor, Irvine CA 92612-1400("ABT"), and
((Dealer_Corp)), a(n) ((STTxt)) ((Entity)), d.b.a. ((Dealer_DBA)), with its
principal place of business at ((Bill_Addr)), ((City)) ((ST)) ((Dlr_Zip)).
RECITALS
--------
WHEREAS, ABT is in the business of operating advertising programs primarily
through electronic media:
WHEREAS, Dealer is a dealer of automobiles and/or trucks who wishes to
participate in said program;
WHEREAS, ABT has invested considerable amounts of money in order to operate the
program on the Internet and on-line computer services; and
WHEREAS, Dealer agrees to provide a high level of service to members of the
public reached through the program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, ABT AND DEALER AGREE AS FOLLOWS:
1. SERVICES TO BE PERFORMED.
------------------------
ABT shall provide an advertising program on the Internet and Online Services
to the public and shall forward information regarding inquiries made for the
make subscribed and in the zip code area subscribed to by Dealer.
2. USE OF SERVICES.
---------------
(a) Dealer Participation. Dealer agrees to abide by ABT's Customer Service
--------------------
Standards as more fully described in Paragraph 10 below, which may be revised
from time to time. Dealer shall designate one key employee to be provided
instructions by ABT or its authorized agent. Should the assignment of any
designated key employee change, Dealer shall notify ABT. Dealer shall be
responsible for costs, if any, associated with the training of its key employees
to use ABT's services. Dealer shall sign any necessary confidentiality
agreements to protect ABT's rights.
(b) Use of System and Modifications. It is agreed to by the parties that the
-------------------------------
use of ABT's program is restricted solely to Dealer and its designated employees
and other duly authorized licensees of ABT. Dealer shall not compete with ABT
in providing the services herein discussed.
3. EQUIPMENT.
---------
(a) ABT Equipment. ABT warrants that it possesses or has access to and the
-------------
right to use computer equipment and other office equipment necessary for ABT to
perform its services contemplated by this Agreement.
(b) Dealer Equipment. Dealer, at its sole cost and expense, shall provide
----------------
the computer and other office equipment necessary to use and receive the
services to be provided hereunder by ABT.
(c) Equipment Maintenance, Risk of Loss. Dealer shall maintain all of their
-----------------------------------
computer and office equipment necessary for the utilization of the services to
be provided hereunder by ABT in good and proper working order and repair.
Dealer shall assume all responsibility for loss or damage to Dealer's equipment
in the utilization of the services to be provided hereunder by ABT.
4. TITLE TO SYSTEM.
---------------
The services to be provided hereunder by ABT, together with any
modifications and/or improvements therein made by ABT or Dealer during the term
of this Agreement, or any extensions thereof, and all copies thereof are
proprietary to ABT and title thereto remains in ABT. All applicable rights to
patents, copyrights, trademarks and trade secrets in the System and in the name
"Auto-By-Tel" and its logo are and shall remain solely in ABT.
5. ASSIGNMENT OF TERRITORY.
-----------------------
(a) Subject to the terms and conditions set forth in this Agreement, Dealer
subscribes to utilize the program within the geographic area designated by the
following zip codes: ((Territory)) and for the following make of motor vehicles:
((Franchise)) (the "Territory").
(b) Notwithstanding the foregoing, ABT retains the right to reassign or
revise Dealers zip code area and subscription fees as necessary to accommodate
entry of additional dealers into the program.
6. SUBSCRIPTION FEES.
-----------------
Subject to the provisions of paragraph 5.b:
(a) Dealer shall pay ABT ((Amt_Text)) (((Amount))) as an initial start-up
fee concurrently with Dealer's execution of this Agreement.
(b) Dealer shall pay ABT the amount of ((Monthly)) as a monthly
subscription fee which is due and payable on the first day of every
month. ABT may change this monthly subscription fee upon thirty (30)
days written notice of the increased price to the dealer.
(c) Dealer shall pay ABT an annual fee on the first anniversary date of
this Agreement and each anniversary thereafter. A notice indicating the
amount of the annual fee will be sent to the Dealer 60 days prior to
the anniversary date of this Agreement.
7. TAXES.
-----
Dealer shall, in addition to any other amounts payable under this Agreement,
pay all taxes - federal, state, local or otherwise - however designated which
are levied or imposed by reason of the services provided under this Agreement.
Without limiting the foregoing, Dealer shall promptly pay to ABT an amount equal
to any such items actually paid or required to be collected or paid by ABT.
8. TERM.
----
This Agreement shall be for a term of five (5) years, commencing upon the
date hereof and terminating on the ((Term_DateTxt)) unless sooner terminated or
revised according to the provisions hereof. Either party may terminate this
Agreement, at their sole option and for any reason whatsoever, at any time by
providing the other party 30 days written notice. This Agreement may be
terminated by ABT immediately and without notice in the event that Dealer does
not adhere to ABT's Customer Service Standards or in the event that any fees due
ABT are outstanding more than 30 days. If this Agreement is terminated prior to
the date set forth herein, the parties agree to continue to be bound to the
covenants and promises set forth in paragraphs 2b, 4, 12, 13, 15, and 22.
9. PERIODIC OPERATIONS REPORTS.
---------------------------
(a) Reports. ABT shall furnish to Dealer, on a quarterly basis, an
-------
operations report which shall include the number of inquiries received by ABT
from Dealer's zip code area. Dealer shall report to ABT on a monthly basis the
number and names of Potential Purchasers who purchased motor vehicles from
Dealer, the number of vehicles financed and the amounts financed and such other
information as ABT may from time to time request.
(b) Duty of Care. ABT shall not be liable for any loss of data, delays
------------
and/or errors in transmitting data occurring by reason of circumstances beyond
its reasonable control or for any damages arising as a consequence thereof.
10. CUSTOMER SERVICE STANDARDS.
--------------------------
Dealer shall relay full and complete response to the inquiries transmitted
by ABT to Dealer within 24 hours of receipt of the inquiry from ABT, exclusive
of Saturdays, Sundays and holidays recognized by the federal government.
Dealer's initial response shall be by telephone and shall disclose the
availability of the vehicle inquired about, the manufacturers suggested retail
price of the vehicle and all requested options and the price at which the Dealer
will sell the vehicle with all requested options. In addition, Dealer shall
provide information as to all other terms and costs required by law to be
disclosed (the "Dealer Information").
Page 1
11. DEALER'S COVENANTS.
------------------
Dealer hereby covenants and agrees that all of the terms and conditions
contained in Dealer Information transmitted shall remain in full force and
effect and be binding upon Dealer for a period of seven (7) days after its
transmittal provided the identified vehicle remains available for sale.
12. CONFIDENTIALITY.
----------------
ABT agrees to treat all records and other information provided by Dealer,
with respect to terms of sale, financing or leasing of motor vehicles,
confidential. Dealer, on behalf of itself and its employees, agrees to keep all
information with respect to ABT's services confidential and, without the
previous written consent of ABT, Dealer shall not impart ABT's services, or the
concept thereof, to any person or entity whatsoever other than employees of
Dealer. Notwithstanding the foregoing, if either party is required to produce
any such information by order of any government agency, court of competent
jurisdiction, or other regulatory body, it may, upon not less than five days
written notice to the other party, release required information.
13. INDEMNIFICATION.
----------------
Dealer agrees to indemnify and hold harmless ABT and its subsidiaries
and/or affiliates and their respective members, managers, directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements, and costs, including fees and expenses, arising
out of or related to any third party claim (including, but not limited to, any
claim for damages by any person or entity who purchases, leases and/or finances
a motor vehicle(s) from Dealer through the utilization of ABT's services)
resulting from the use of ABT's services provided hereunder. Dealer shall defend
and settle, at its sole cost and expense, all suits or proceedings arising out
of any of the foregoing, provided ABT gives Dealer prompt notice of any such
claim of which it learns. In all events, ABT shall have the right to participate
in the defense of any such suit or proceedings through counsel of its own
choosing. ABT shall be without liability to Dealer with respect to anything
done, or omitted to be done, in accordance with the terms of this Agreement or
instructions properly received pursuant hereto, if done in good faith and
without negligence or willful or wanton misconduct.
14. TRADE SECRETS.
-------------
(a) During the term of this Agreement, Dealer will have access to and
become acquainted with various trade secrets, consisting of formulas,
strategies, processes, computer programs, compilations of information,
records, specifications, and contractual information, all of which are
owned by ABT and regularly used in the operation of ABT's business.
(b) Dealer acknowledges and agrees that the sale or unauthorized use or
disclosure of any of ABT's trade secrets constitutes unfair
competition.
15. WARRANTY LIMITATION.
-------------------
ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE OF THE SERVICES HEREUNDER
AND DEALER SPECIFICALLY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED ARISING OUT
OF OR IN CONNECTION WITH THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT BY
ABT. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS OF BUSINESS
PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, OR
FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
16. TRADEMARKS AND SERVICE MARKS.
----------------------------
Any and all trademarks and service marks associated with ABT are and shall
remain the exclusive property of ABT. If during the term of this Agreement, a
trademark registration is filed by ABT, all rights belong to ABT who shall also
bear the costs for such registration. Dealer is permitted to use the trademark
and service mark only as set forth herein or only as authorized in writing by
ABT.
17. ADVERTISEMENTS.
---------------
In all new car display print advertisements which are equal to or greater
than 14 column inches, Dealer shall also include ABT's service mark as well as
its Internet address in one of the formats depicted in Exhibit A such that the
ABT service mark and Internet address are clearly legible.
18. NOTICES.
--------
All notices and requests in connection with this Agreement shall be given
or made upon the respective parties in writing and shall be deemed as given on
the day it is deposited in the U.S. mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement or to such address as the party to receive the notice or request
so designates by written notice to the other.
19. ASSIGNMENT.
----------
This Agreement and the rights and duties hereunder shall not be assignable
by the Dealer except upon written consent of ABT. This Agreement and the rights
and duties hereunder shall be assignable by ABT.
20. INDEPENDENT CONTRACTORS.
-----------------------
The relationship between ABT and Dealer created by this Agreement shall be
that of independent contractor. Nothing contained in this Agreement shall be
construed as creating or constituting a partnership, agency, or joint venture
between ABT and Dealer.
21. NO WAIVER.
---------
The failure of either party to exercise in any respect any right provided
for herein shall not be deemed a waiver of any right hereunder.
22. SEVERABILITY.
------------
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, such determination shall in no way alter or impair the validly,
legality and enforceability of the remaining provisions of this Agreement.
23. GOVERNING LAW AND JURISDICTION.
------------------------------
This Agreement and the performance hereunder shall be governed and construed
in accordance with the laws of the State of Texas. Any dispute or claim arising
between the parties hereto shall be brought in a court of competent jurisdiction
located in the County of Travis in the State of Texas and the parties hereto
agree to jurisdiction in Texas.
24. OTHER AGREEMENTS.
----------------
This Agreement supersedes any and all agreements, either oral or written,
between the parties and contains all of the representations, covenants, and
agreements between the parties with respect to the rendering of the services
described in this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
contained in this Agreement, and that no other agreement, statement, or promise
not contained in this Agreement will be valid or binding. Any modification of
this Agreement will be effective only if it is in a writing signed by the party
to be charged.
Auto-By-Tel Marketing Corporation, a Delaware Corporation
By: _____________________________________________________
Name: Mr. Pete Ellis
Title: President
Dealer: ((Dealer_Corp))
By: _____________________________________________________
Name: ((Sirname)) ((Dlr_First)) ((Dlr_Last))
Title: ((Dlr_Title))
Page 2
EXHIBIT 10.13(g)
ABT USED CAR CYBERSTORE SUBSCRIPTION AGREEMENT
----------------------------------------------
THIS AGREEMENT made this ((CyberStDate)) by and between Auto-By-Tel
Marketing Corporation, a Delaware corporation, with its principal place of
business at 18872 MacArthur Blvd., Irvine, CA 92612-1400 ("ABT"), and
((DealerCorp)) "Dealer"), a ((StateofInc)) ((Entity)), with its principal place
of business at ((BillingAddress)), ((City)), ((StateOrProvince)) ((PostalCode)).
RECITALS
--------
WHEREAS, ABT is in the business of, among other things, locating persons
interested in purchasing and/or leasing used automobiles and/or trucks
("vehicles") primarily through electronic media ("Potential Purchasers"), and
has created a Web site application and related technology and services pursuant
to which Dealer may publish information concerning and pictures of used vehicles
(the "Cyberstore") to enable Potential Purchasers to locate and consider
purchases thereof;
WHEREAS, Dealer is a dealer of used vehicles and is a franchised dealer of
new automobiles and/or trucks that subscribes to ABT's new car program and is a
licensee of ABT's proprietary software programs (the "Dealer Real Time System");
WHEREAS, Dealer wishes to participate in a program where ABT provides
certain information about Potential Purchasers to Dealer which will facilitate
Dealer's sales of used vehicles to Potential Purchasers and thereby decrease
marketing costs which, in turn, will allow Dealer to offer used vehicles at
competitive prices;
WHEREAS, ABT has invested considerable amounts of money in order to acquire
relevant information about Potential Purchasers from the internet and on-line
computer services and to develop the relevant technology and know-how for the
Cyberstore; and ABT wishes to ensure that Dealer will provide a high level of
service to Potential Purchasers provided to the Dealer through their
participation in this program.
NOW, THEREFORE, in consideration for the mutual covenants and promises
contained herein, ABT and Dealer agree as follows:
1. ABT Cyberstore Marketing Program.
--------------------------------
(a) ABT Obligations. ABT shall provide a marketing program on the
---------------
internet and online services to attract Potential Purchasers under the service
mark "ABT Used Car Cyberstore." ABT shall establish and maintain a database
permitting Dealer to publish information on "ABT Certified" (as described below)
vehicles and permitting access to internet users to information contained
therein through the ABT Web site. The database shall be accessible by Potential
Purchasers who shall search the database for used vehicles by make, model and
option specification. Purchase requests shall be routed to dealers with the
appropriate used vehicle in the database in accordance with geographic and other
parameters established by ABT from time to time.
Page 1
(b) Certification Program. Only vehicles that are "ABT Certified" may
---------------------
be offered for sale through the Cyberstore. "ABT Certified" vehicles shall be
those which meet all checklist requirements specified by ABT from time to time.
The requirement shall be set forth on a form (the "Checklist") which will be
provided to Dealer from time to time, which may contain 130 or more areas of
compliance to be met before any vehicle is ABT Certified, and which may be
amended by ABT from time to time. ABT shall specify the methodology of
inspection for compliance with the Checklist, which may include contracting with
a third party service provider ("Inspectors"), chosen by ABT, to inspect
vehicles which Dealer may wish to offer for sale through the Cyberstore. Dealer
agrees to cooperate fully with the Inspectors and to answer any questions asked
by the Inspectors with full and complete information. Dealer agrees to provide
ABT or the Inspectors with all information a reasonable vehicle purchaser would
want to know in evaluating a purchase of any vehicle. Dealer shall indemnify
ABT for all liabilities for customary third party claims arising in connection
with vehicles dealer certifies pursuant to the ABT certification program.
(c) Service Support. ABT shall provide or cause to be provided a
---------------
service allowing Dealer to upload used vehicle information and images to the
Cyberstore database on a periodic basis, and, at Dealer's expense, shall make
available training resources to facilitate the use of the equipment, software
and other aspects of the Cyberstore program. Dealer will permit access to ABT,
or its agents or contractors, as requested to photograph, inspect and gather
data for input to the Cyberstore database through use of the ABT Real Time
System. ABT, or its agents, will, on two occasions, provide on-site service
support and assist Dealer personnel in uploading vehicle information to the
Cyberstore, as well as adding and deleting vehicles from the system. Subsequent
service support shall be available from ABT at per diem rates established by ABT
from time to time.
(d) ABT Equipment. ABT warrants that it possesses or has access to
-------------
and the right to use computer equipment and other office equipment necessary for
ABT to perform its services contemplated by this agreement.
(e) ABT Reports. ABT shall furnish to Dealer, on a quarterly basis,
-----------
an operations report which shall include the number of inquiries from
Potential Purchasers of used vehicles forwarded to Dealer.
2. Dealer Participation and Obligations.
------------------------------------
(a) Dealer Participation. Dealer shall designate at least one and no
--------------------
more than three key employees who shall be the ABT contact persons for purposes
of being provided instructions by ABT or its authorized agent. Dealer shall
notify ABT within ten (10) days of any change in the assignment of any
designated key employee. Dealer shall be responsible for costs, if any,
associated with the training of its key employees to use ABT's services. Dealer
shall promptly sign, and shall cause all designated key employees to sign, any
confidentiality agreements submitted by ABT to protect ABT's proprietary rights.
(b) Customer Service Standards. Dealer agrees to abide by ABT's Used
--------------------------
Car Cyberstore Customer Service Standards designed to insure the quality of the
ABT programs and the quality and consistency of Dealer's participation in such
programs. ABT may, from time to time, amend the Used Car Cyberstore Customer
Service Standards, or impose additional Used
Page 2
Car Cyberstore Customer Service Standards upon thirty (30) days notice to
Dealer. Dealer acknowledges that maintenance of the Used Car Cyberstore Customer
Service Standards is crucial to the value of ABT's services and agrees to adopt
such amendments or additions, even through they may require more work or expense
to implement. The Used Car Cyberstore Customer Service Standards include the
following:
i) Dealer will warranty all vehicles purchased from Dealer through
the services of the Cyberstore. The coverage of the warranty
shall be no less favorable to the purchaser than the law of the
state in which Dealer is located, and in no event shall be less
favorable than "Three months or 3,000 miles, whichever comes
first." The warranty shall cover all matters governed by
applicable law and by the form of warranty attached hereto.
Dealer will indemnify ABT for any third party claims arising
under any warranty.
ii) Dealer will provide prices for display on the ABT Web site of all
vehicles posted to the Cyberstore. Dealer will price such
vehicles competitively, but there shall be no maximum price
specified by ABT.
iii) Dealer will offer, and inform each purchaser in writing of, a
repurchase option, enabling any purchaser to return a purchased
vehicle to Dealer within 72 hours or 300 miles, whichever comes
first. Dealer will refund 100% of the monies collected by Dealer
with respect to any repurchased vehicle, provided there has been
no damage to the vehicle. Dealer will provide each purchaser the
name and phone number of the Dealer employee to contact to
exercise the repurchase option. Dealer shall facilitate the
exercise of such option in good faith using its best efforts to
maximize the purchaser's satisfaction with the repurchase
experience, and in any event shall refund such monies within five
(5) business days.
iv) Dealer will participate in any emergency repair system
established by ABT, which system will permit any purchaser of a
Cyberstore vehicle who is more than 100 miles from their
residence and encounters a situation where the vehicle is not
operational (i.e. cannot be driven), to contact the nearest
Cyberstore Dealer (the "Repairing Dealer") and have such
Repairing Dealer perform any warranted service or repair. The
Repairing Dealer will contact the dealership through which the
purchaser acquired its vehicle (the "Selling Dealer") and receive
an irrevocable purchase order (an "R.O.") from the Selling Dealer
to appropriately repair the vehicle. For other covered items,
the owner should return to the selling dealer. In the interest
of customer satisfaction, and improved inter-dealer relations,
the resulting R.O. will be calculated on an internal basis of
"cost plus 25%" for parts and labor in all states, except for
those states with higher mandates, in which states the applicable
law will govern. In the event of a "major" repair (i.e. engine
or transmission), the selling dealer will have the option of
providing alternate transportation to the customer, retrieving
the affected unit, and repairing such unit at the selling
dealer's service location. In
Page 3
the event of any dispute between the Selling Dealer and the
Repairing Dealer, ABT will act as arbiter and ABT's decisions
will be final and binding upon Dealer.
v) Dealer will participate in financing programs offered through
Auto-By-Tel Acceptance Corporation ("ABTAC"). Dealer agrees that
low-cost financing arrangements pursuant to which customers would
(i) receive a financing proposal, and (ii) close both the vehicle
acquisition and financing quickly through Dealer, would be viewed
by Potential Purchasers as an improvement in the Auto-By-Tel
Program, consequently increasing the attractiveness of the Used
Car Cyberstore and its value to Dealer. Dealer agrees to
cooperate fully with the financing arrangements instituted by
ABTAC through the ABT Web site, including without limitation
entering into customary closing administration arrangements with
finance companies as requested by ABTAC, and to take such actions
as reasonably requested by such finance companies or ABTAC to
ensure that customers receive a high level of service and
satisfaction in connection with the finance arrangements. After
ABTAC institutes its financing program, Dealer acknowledges that
changes in the Used Car Cyberstore Customer Service Guidelines
may from time to time pertain to such financing programs.
(vi) Dealer agrees to adopt ABT sales procedures on used vehicle
transactions, including, without limitation, firm phone price
quotes, advanced paperwork preparation, minimization of purchaser
time spent closing transactions, and "no hassle" sales. Dealer
shall relay to Potential Purchasers a full and complete response
to the Potential Purchasers' inquiries transmitted by ABT to
Dealer within 24 hours for receipt of the inquiry from ABT.
Dealer's initial response shall be by telephone and shall
disclose (i) the availability of the vehicles inquired about,
(ii) all requested options, (iii) the price at which the Dealer
will sell/lease the vehicle with all requested options to the
Potential Purchasers, and (iv) all other terms and costs required
by law to be disclosed to prospective purchasers, or from time to
time specified by ABT to be disclosed to Potential Purchasers
(all such information, the "Dealer Information"). Dealer hereby
covenants and agrees that all of the terms and conditions
contained in Dealer information transmitted to a Potential
Purchaser shall remain in full force and effect and be binding
upon Dealer for a period of seven (7) days after its transmittal
provided the identified vehicle still remains available for sale,
and Dealer agrees to include a statement to such effect in the
Dealer Information.
(vii) Dealer agrees to cooperate fully with ABT and its agents and
contractors with respect to all systems aspects and inspections
concerning the Cyberstore, as such systems and inspections are
specified by ABT from time to time.
(c) Use of System and Modifications. It is agreed to by the parties
-------------------------------
that the use of ABT's services is restricted solely to Dealer and its designated
employees and other duly
Page 4
authorized licensees of ABT. Dealer shall not compete with ABT in providing the
services herein discussed.
(d) Dealer Equipment. In order to assure high quality service
----------------
delivered consistently by all dealers participating in the Cyberstore, ABT
shall, from time to time, specify the equipment and software required by Dealer
to participate in the Cyberstore. Dealer, at its sole cost and expense, shall
provide the computer and other office equipment specified from time to time by
ABT to use and receive the services to be provided hereunder by ABT, including,
without limitation, the ABT Dealer Real Time Program personal computer and
software. Dealer shall maintain all of their computer and office equipment in
good and proper working order and repair. Dealer shall assume all
responsibility for loss, damage and maintenance of Dealer's equipment and hereby
holds ABT, its officers, directors, agents and other representatives harmless
from any claim in connection therewith.
(e) Dealer Report. Dealer shall report to ABT on a monthly basis the
-------------
number and names of Potential Purchasers who purchased used vehicles from
Dealer, the number of used vehicles financed and the amounts financed and such
other information as ABT may from time to time request.
(f) Advertising; Press Releases. From time to time ABT may provide
---------------------------
Dealer with camera-ready copy and other logos, trademarks, artwork and materials
for the limited purpose of inclusion, at Dealer's option, within Dealer print
and television advertisements to promote the association of Dealer with the ABT
program. ABT shall grant Dealer a revocable, limited license to use such
materials for such limited purposes, and Dealer shall use such materials for
such limited purposes, and Dealer shall use such materials in no other manner.
Any such materials shall remain at all times the property of ABT, and they shall
be returned upon request, and the limited license herein granted may be revoked
at any time by written notice to Dealer. Dealer shall not issue any press
releases or make any public announcements of any of the transactions
contemplated by this Agreement except as may be mutually agreed to in writing by
Dealer and ABT.
3. Title to System, Trademarks. The services to be provided hereunder by
---------------------------
ABT, together with any modifications and/or improvements therein made by ABT or
Dealer during the term of this Agreement, or any extensions thereof, and all
copies thereof are proprietary to ABT and title thereto remains in ABT. All
applicable rights to patents, copyrights, trademarks and trade secrets in the
System and in the name "Auto-By-Tel" and its logo are and shall remain solely in
ABT. Any and all trademarks and service marks associated with ABT, including
"Used Car Cyberstore," are and shall remain the exclusive property of ABT. If,
during the term of this Agreement, trademark registrations are filed by ABT, all
rights belong to ABT, and ABT shall bear the costs for such registration(s).
Dealer is permitted to use the trademarks and service marks only as set forth
herein or only as authorized in writing by ABT.
4. Subscription Fees.
-----------------
(a) Dealer shall pay ABT ((FirstCyberSignupAmt)) ($2500.00 for a
single franchise dealer (one used location supporting one new car franchise),
and $3500.00 for a multi-franchise dealer (a single used vehicle location
supporting multiple new car franchises)) as an initial start-up fee concurrently
with Dealer's execution of this Agreement.
Page 5
(b) Dealer shall pay ABT the amount of ((CyberMthFee)) as a monthly
subscription fee which is due and payable on the first day of every month. ABT
may change this monthly subscription fee upon thirty (30) days written notice of
the increased price to the Dealer.
(c) Dealer shall pay ABT an annual fee on the first anniversary date
of this Agreement and each anniversary thereafter. A notice indicating the
amount of the annual fee will be sent to the Dealer sixty (60) days prior to
each anniversary date of this Agreement.
(d) Dealer shall pay ABT a per vehicle fee with respect to all
vehicles offered for sale by Dealer through the Cyberstore in accordance with
Schedule A attached hereto. Such fee shall be payable with respect to each day
any vehicle is identified on the ABT Web site as available for purchase.
(e) If ABT terminates this Agreement pursuant to Section 6(b)(ii) for
no reason, ABT shall refund a prorated amount of fees paid under this Agreement
for the remaining portion of the period with respect to which such fees had been
paid, except that the monthly fees due for the month in which the Agreement is
terminated shall not be refunded or prorated. (The startup fee shall be deemed
to have been paid for the first year this Agreement is in effect.) In no other
circumstances shall any amounts paid under this Agreement be refundable.
5. Taxes. Dealer shall, in addition to any other amounts payable under
-----
this Agreement, pay all taxes -- federal, state, local or otherwise, excluding
income taxes attributable to the income of ABT -- however designated which are
levied or imposed by reason of the services provided under this Agreement.
Without limiting the foregoing, Dealer shall promptly pay to ABT an amount equal
to any such items actually paid or required to be collected or paid by ABT.
6. Term and Termination.
--------------------
(a) This Agreement shall be for a term of five (5) years, unless
terminated sooner pursuant to this Section 6.
(b) ABT may terminate this Agreement (i) immediately if Dealer does
not adhere to the Used Car Cyberstore Customer Service Standards in effect, or
any amounts due ABT pursuant to Section 4 are outstanding more than thirty (30)
days, or, if any amount payable to ABT under Sections 5 or 8 are outstanding
more than thirty (30) days after ABT makes a written request therefor, or any
other breach by Dealer of this Agreement is not cured within ten (10) days after
written notification by ABT of such breach or Dealer is in breach of any other
Agreement to which ABT (or any of its affiliates) and Dealer are both parties;
or (ii) at any other time, for any reason or for no reason, upon thirty (30)
days written notice to the Dealer; or (iii) immediately, if Dealer is in default
under any other agreement between ABT (or any of its affiliates), on the one
hand, and Dealer (or any of its affiliates) on the other, or if Dealer ceases
for any reason to participate in the ABT Real Time Program or the ABT new car
purchase program, or any ABTAC financing program.
(c) Dealer may terminate this Agreement (i) immediately, if an order
for liquidation against ABT is entered and not stayed in a bankruptcy
proceeding; (ii) immediately,
Page 6
if ABT is guilty of willful misconduct in the performance of its duties under
this Agreement; or (iii) at any other time, in its sole discretion, upon thirty
(30) days written notice to ABT.
If this Agreement is terminated prior to the date set forth herein,
the parties agree to continue to be bound to the covenants and promises set
forth in paragraphs 2(f), 3, 5, 6, 7, 8, 9, 10, 11 and 12.
7. Confidentiality. ABT agrees to treat all records and other information
---------------
provided by Dealer, with respect to terms of sale, financing or leasing of
vehicles, confidential, except that this information may be transmitted to
consumers making inquiries concerning the terms of purchase, financing or
leasing of used vehicle(s). Dealer, on behalf of itself and its employees,
agree to keep all information with respect to ABT's services confidential and,
without the previous written consent of ABT, Dealer shall not impart ABT's
services, or the concept thereof, to any person or entity whatsoever other than
the designated key employees of the Dealer. Notwithstanding the foregoing, if
either party is required to produce any such information by or of any government
agency, court of competent jurisdiction, or other regulatory body, it may, upon
not less than five (5) days written notice to the other party, release required
information. During the term of this Agreement, Dealer will have access to and
become acquainted with various trade secrets, consisting of formulas,
strategies, processes, computer programs, compilations of information, records,
specifications, and contractual information, all of which are owned by ABT and
regularly used in the operation of ABT's business. Dealer acknowledges and
agrees that it will keep such trade secrets confidential, and the sale or
unauthorized use or disclosure of any of ABT's trade secrets will greatly damage
ABT. In the event of the termination of this Agreement in accordance with its
terms, Dealer will, upon request of ABT, promptly deliver to ABT all software
and other written information and documents provided in connection with this or
any other Agreement between ABT and Dealer, in the possession of Dealer, or any
personnel thereof, including all copies, reproductions, summaries, analyses and
extracts thereof or based thereon.
8. Indemnification. Dealer agrees to indemnify and hold harmless ABT and
---------------
its subsidiaries and/or affiliates and their respective directors, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements, and costs, including fees and expenses, arising
out of or related to any third party claim (including, but not limited to, any
claim for damages by any person or entity who purchases, leases, and/or finances
a used vehicle(s) from Dealer through utilization of ABT's services) resulting
from the use of ABT's services provided hereunder. Dealer shall defend and
settle, at its sole cost and expense, all suits or proceedings arising out of
any of the foregoing, provided ABT gives Dealer prompt notice of any such claim
of which it learns. In all events, ABT shall have the right to participate in
the defense of any such suit or proceedings through counsel of its own choosing.
ABT shall be without liability to Dealer with respect to anything done, or
omitted to be done, in connection with this Agreement or instructions received
pursuant hereto, if done without gross negligence or willful or wanton
misconduct.
9. Exclusivity. Dealer acknowledges that the value to Dealer of this
-----------
Agreement is based on the unique package of services marketed to Potential
Purchasers of used vehicles by ABT and ABT's reputation for delivering such
services on a consistent basis. Dealer agrees that certain key elements of the
ABT packages of services are (i) electronic transmission of customer purchase or
lease requests; (ii) rapid response by dealers to consumer pricing or lease
pricing request, including immediate telephone contact with up-front, firm
pricing provided over the
Page 7
phone on such call; (iii) customer paperwork completed or nearly completed prior
to customer arrival at the dealership for pickup so as to ensure the customer
spends as little time as possible at the dealership for pickup; and (iv) Dealer
training and support to implement the ABT package of services and to maintain
the style and reputation of the ABT sales program and package of services; and
(v) the provision of any service pursuant to which a Potential Purchaser may
search a database containing vehicles posted by more than one dealer
(collectively, the "Key Elements"). Dealer acknowledges that ABT has spent, and
will spend, considerable time and money developing its package of services and
training Dealer to deliver such services in a consistent way which maintains
ABT's distinctive market presence and reputation. Accordingly, Dealer agrees
that during the "Exclusivity Period" (as defined below), Dealer and its
affiliates will not, directly or indirectly, participate with any third party in
any arrangement or agreement which involves any or all of the Key Elements, and
will not participate in any pricing, credit or financing, insurance or
information service involving or made available on the Internet, online or by
other electronic means. For purposes of this Section 9, the "Exclusivity Period"
commences on the date of this Agreement, and terminates one year after the date
of termination; provided, however, that if this Agreement is terminated anytime
-----------------
after the first anniversary of the date hereof, then the Exclusivity Period
terminates six months after the date of termination. Without contradicting the
foregoing, Dealer may establish and maintain its own Web site and/or participate
in any factory direct program.
Notwithstanding any other provisions of this Agreement, in the event Dealer
breaches this Section 9, the provisions of this Section shall remain in full
force and effect for one (1) year after such breach is cured. Dealer
acknowledges that the provisions of this Section 9 were a material inducement to
ABT in entering into this Agreement, and that ABT would not have entered into
this Agreement with Dealer in the absence of such provisions. Dealer
acknowledges and agrees that compliance with the provisions of Sections 7 and 9
is necessary to protect the business and good will of ABT, and that any breach
of Sections 7 or 9 will result in irreparable and continuing damage to ABT, for
which money damages may not provide adequate relief. Accordingly, Dealer agrees
that in the event Dealer shall breach or threaten to breach Sections 7 and 9, in
addition to any other relief to which ABT may be entitled, ABT shall be
entitled to temporary, preliminary or permanent injunctive relief, without proof
of actual damages that have been or may be sustained by ABT as a result of such
breach, and recovery of all reasonable sums expended and costs, including
reasonable attorneys' fees, incurred by ABT to enforce the provisions of
Sections 7 and 9 hereof.
10. Warranty Limitation. ABT MAKES NO WARRANTY REGARDING THE PERFORMANCE
-------------------
OF THE SERVICES HEREUNDER AND DEALER SPECIFICALLY WAIVES ALL WARRANTIES,
EXPRESSED OR IMPLIED ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE
PROVIDED UNDER THIS AGREEMENT BY ABT. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE
LIABLE FOR ANY LOSS OF BUSINESS PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR SIMILAR DAMAGES, OR FOR THE CLAIMS OF DAMAGES MADE BY ANY THIRD
PARTY EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ABT SHALL
NOT BE LIABLE FOR ANY LOSS OF DATA, DELAYS AND/OR ERRORS IN TRANSMITTING DATA
OCCURRING FOR ANY REASON OR FOR ANY DAMAGES ARISING AS A CONSEQUENCE THEREOF.
Page 8
11. Notices. All notices and requests in connection with this
-------
Agreement shall be given or made upon the respective parties in writing and
shall be deemed as given on the day it is deposited in the U.S. mail, postage
prepaid, certified or registered, return receipt requested, and addressed as
designated at the top of this Agreement or to such address as the party to
receive the notice or request so designates by written notice to the other.
12. Miscellaneous.
-------------
(a) Assignment. This Agreement and the rights and duties hereunder
----------
shall not be assignable by the Dealer except upon written consent of ABT. This
Agreement and the rights and duties hereunder shall be assignable by ABT.
(b) Independent Contractors. The relationship between ABT and Dealer
-----------------------
created by this Agreement shall be that of independent contractor. Nothing
contained in this Agreement shall be construed as creating or constituting a
partnership, agency, or joint venture between ABT and Dealer.
(c) No Waiver. The failure of either party to exercise in any respect
---------
any right provided for herein shall not be deemed a waiver of any right
hereunder.
(d) Severability Clause. Any part, provision, representation or
-------------------
warranty of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any
part, provision, representation or warranty of this Agreement that is prohibited
or unenforceable or is held to be void or unenforceable in any jurisdiction
shall be ineffective, as to such jurisdiction, to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law that prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any Person of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure, the economic effect of which is as close as possible to the
economic effect of this Agreement, without regard to such invalidity.
(e) Governing Law; Consent to Forum. This Agreement has been
-------------------------------
negotiated, executed and delivered at and shall be deemed to have been made in
California. This Agreement shall be governed by and construed in accordance
with the laws of the State of California without giving effect to the conflict
of laws rules therein. The parties hereto hereby consent and agree that the
California state courts, or at ABT's option, the United States District Courts
sitting in California, shall have exclusive jurisdiction to hear and determine
any claims or disputes between the parties hereto pertaining to this Agreement
or to any matter arising out of or related to this Agreement. The parties
hereto expressly submit and consent in advance to such jurisdiction in any
action or suit commenced in any such court, and hereby waive any objection which
it may have based upon lack of personal jurisdiction, improper venue or forum
non conveniens and hereby consent to the granting for such legal or equitable
relief as is deemed appropriate by such court. Nothing in this Agreement shall
be deemed or operate to affect the right of either party to serve legal process
in any other manner permitted by law, or to preclude
Page 9
the enforcement by either party of any judgment or order obtained in such forum
or the taking of any action under this Agreement to enforce same in any other
appropriate forum or jurisdiction.
(f) WAIVER OF TRIAL BY JURY. EACH PARTY HERETO WAIVES THE RIGHT TO
-----------------------
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(g) Cooperation. Upon the request of ABT, Dealer agrees to confirm in
-----------
writing, in form satisfactory to ABT and provided by ABT at its own expense, any
amendment, modification, change in original terms or other action which alters
the terms of this Agreement and which was taken or initiated by ABT pursuant to
rights granted to, or reserved by, ABT hereunder.
(h) Judicial Interpretation. Should any provision of this Agreement
-----------------------
require judicial interpretation, it is agreed that a court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against any party by reason of the rule of construction
that a document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that all parties hereto
have participated in the preparation of this Agreement.
(i) Counterparts. This Agreement may be executed simultaneously in
------------
any number of counterparts. Each counterpart shall be deemed to be an original,
and all such counterparts shall constitute one and the same instrument.
(j) Advice from Independent Counsel. The parties hereto understand
-------------------------------
that this Agreement is a legally binding agreement that affects such party's
rights. Each party represents to the other that it has received legal advice
from counsel of its choice regarding the meaning and legal significance of this
Agreement, and that it is satisfied with its legal counsel and the advice
received from it.
(k) Other Agreements. This Agreement supersedes any and all
----------------
agreements, either oral or written, between the parties and contains all of the
representations, covenants, and agreements between the parties with respect to
the rendering of the services described in this Agreement. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not contained in this Agreement, and that no
other agreement, statement, or promise not contained in this Agreement will be
valid or binding. Any modification of this Agreement will be effective only if
it is in a writing signed by the party to be charged.
Page 10
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to set their hands as of the date first above written.
Auto-By-Tel Marketing Corporation
By ______________________________
Name: Peter R. Ellis
Title: President
((DealerCorp))
By _______________________________
Name: ((DealerFirstName)) ((DealerLastName))
Title: ((DealerTitle))
Page 11
SCHEDULE A
- ----------
ABT CYBERSTORE SUBSCRIPTION AGREEMENT
Daily Charges Based on Per Unit Per Day
---------------------------------------
0-25 $2.00 Per Day Per Unit
26-49 $1.75 Per Day Per Unit
50-75 $1.50 Per Day Per Unit
76+ $1.25 Per Day Per Unit
Page 12
EXHIBIT 10.13(h)
ABTAC FINANCE PROGRAM PARTICIPATION AND POWER OF ATTORNEY
---------------------------------------------------------
AGREEMENT
---------
This ABTAC FINANCE PROGRAM PARTICIPATION AND POWER OF ATTORNEY AGREEMENT
("Agreement") is entered into as of the ((FinanceStDate)) between AUTO-BY-TEL
ACCEPTANCE CORPORATION, a Delaware corporation ("ABTAC"), and ((Dealer_Corp))
dba ((Dealer_DBA)) ("Dealer").
WITNESSETH:
----------
WHEREAS, Dealer and Auto-By-Tel Marketing Corporation are parties to one or
more subscription agreements governing the forwarding of purchase requests
through the Website of its affiliate Auto-By-Tel Corporation, which agreement(s)
contemplate the provision by ABTAC of certain financial services as part and
parcel of the Auto-By-Tel customer service program;
WHEREAS, ABTAC has entered into arrangements with certain companies to make
available to Auto-By-Tel customers through Auto-By-Tel subscribing dealers
certain financial services, and ABTAC intends to enter into further such
arrangements;
WHEREAS, to facilitate such arrangements, Dealer has agreed to grant ABTAC
a power-of-attorney to execute and deliver the dealer agreements related to such
arrangements on behalf of Dealer;
WHEREAS, to facilitate such arrangements, ABTAC has requested that Dealer
instruct ABTAC to specify to each financing source a binding amount of "dealer
participation" or with respect to the sale of certain retail installment
contracts and lease financing agreements, which amount Dealer will be paid
directly by the financing source;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, ABTAC and Dealer agree as follows:
1. Dealer Participation. Dealer hereby instructs ABTAC to inform each
--------------------
and every finance company which becomes one of the financing sources available
to Auto-By-Tel customers, that Dealer agrees that it will accept as compensation
for financing transactions the amounts computed in accordance with the formulas
set forth on Schedule A, subject to customary conditions and terms (including
those in the applicable dealer agreement or similar arrangement). Dealer agrees
to return an executed copy of Schedule A to ABTAC forthwith, and agrees that if
it fails to so return the Schedule, then the Dealer Election set forth on
Schedule A shall be deemed to be "Flat Fee Program: No Rate Increase." Dealer
shall have the right, on thirty (30) days written notice, to amend the
participation election percentage, provided Dealer does not amend such election
--------
more frequently than once every ninety (90) days, and provided that Dealer's
election is within the parameters established on Schedule A.
2. Power of Attorney. Dealer hereby agrees to deliver to ABTAC, together
-----------------
with this Agreement, a power of attorney in the form attached hereto as Exhibit
A empowering ABTAC to enter
Page 1
into Auto-By-Tel Acceptance Corporation Master Retail Sales and Lease Financing
Agreements (the "Dealer Agreements") substantially in the form of Exhibit B,
with such terms as are incorporated from the Auto-By-Tel Acceptance Corporation
Master Retail Sale and Lease Financing Standard Provisions set forth on Exhibit
C, together with the additional terms as ABTAC may determine are necessary and
proper and customary in the industry, the execution of a Dealer Agreement by
ABTAC on behalf of Dealer constituting conclusive evidence of such
determination.
3. Term of Agreement. The term of this Agreement shall run concurrently
-----------------
with that of the Subscription Agreement between Dealer and Auto-By-Tel Marketing
Corporation.
4. Miscellaneous. ANY DISPUTE OR CLAIM ARISING HEREUNDER MAY BE BROUGHT
-------------
ONLY TO A COURT OF COMPETENT JURISDICTION LOCATED IN ORANGE COUNTY IN THE STATE
OF CALIFORNIA, AND THE PARTIES HERETO AGREE TO THE JURISDICTION OF SUCH COURT
AND WAIVE ANY JURY TRIAL. This Agreement and the rights and duties hereunder
may be assigned by ABTAC, and may be assigned by the Dealer only upon written
consent of ABTAC. The failure of either party to exercise any right provided
for herein shall not be deemed a waiver. If any provision of this Agreement
shall be held to be invalid, illegal or unenforceable, the rest of this
Agreement shall remain valid and enforceable. This Agreement shall be governed
and construed in accordance with the internal laws of the State of California.
This Agreement supersedes any and all agreements and understandings between the
parties and contains all terms between the parties with respect to the subject
matter hereof. Any modifications of this Agreement will be effective only if in
writing and signed by both parties.
IN WITNESS WHEREOF, each of the parties hereto have caused its duly
authorized representative to execute this Agreement on its behalf as of the date
first written above.
AUTO-BY-TEL ACCEPTANCE
CORPORATION
By: _____________________________
W. Randolph Ellspermann
Chief Operating Officer
Date: ____________________________
((Dealer_Corp))
- -------------
dba ((Dealer_DBA))
By: _____________________________
Signature of ((Dlr_First)) ((Dlr_Last))
Title: ((Dlr_Title))
Date: ____________________________
Page 2
SCHEDULE A
----------
ABTAC DEALER RETAIL PLAN FEATURES ELECTION
------------------------------------------
RETAIL INSTALLMENT SALE FINANCING PARTICIPATION
-----------------------------------------------
A. Flat Fee Program
----------------
If dealer elects NOT to increase the customer financing rate (APR) over the
finance source buy rate (minimum rate), the following fee schedule will be
paid to dealer directly by finance source, subject to the charge back
provisions of the lender per the dealer agreement.
Amount Financed Dealer Fee
--------------- ----------
$25,000 + $75
15,001 - 25,000 50
less than $15,000 25
B. Rate Participation Program
--------------------------
If dealer elects to INCREASE the customer rate over financing source buy
rate, dealer will be paid up front 76% of the contract interest rate markup
directly by finance source, subject to the charge back provisions of the
lender per the dealer agreement. (The finance source shall pay from the
Flat Fee Program if the calculated amount under the Rate Participation
Program is less than the Flat Fee Program.)
C. DEALER ELECTION (CIRCLE ONE)
Flat Fee Program: No rate increase
Rate Participation Program: 0.25 % increase
0.50 % increase
0.75 % increase
1.00 % increase
I understand that each ABTAC finance contract will be pre-approved at the
----
finance source buy rate plus the dealer participation rate shown above, if any,
----
and that both the customer and dealer will be notified of the customer finance
rate (APR) by Auto-By-Tel. An exception to this practice will be for sub-prime
borrowers, when the lender may not permit the indicated markup, in which case
dealer will receive maximum permissible amount.
Dealer Principal: ________________________________________ Date: __________
Signature of ((Dlr_First)) ((Dlr_Last))
Page 3
EXHIBIT A (PAGE 1 OF 2)
POWER OF ATTORNEY
((Dealer_Corp)) dba ((Dealer_DBA)) a ((Entity)) organized and existing
under the laws of the State of ((STTxt)) (the "Dealer"), hereby grants to AUTO-
BY-TEL ACCEPTANCE CORPORATION ("ABTAC"), a power of attorney (this "Power of
Attorney"), with full power of substitution and delegation, to take any and all
actions in the name and on behalf of the Dealer, which ABTAC determines, in its
sole and unreviewable discretion, are necessary or desirable to negotiate,
execute, deliver and bind Dealer to one or more Auto-By-Tel Acceptance
Corporation Master Retail Sales and Lease Financing Agreements (each, an
"Agreement") with one or more finance companies (each, a "FinCo"), or to amend
any provision of any Agreement previously executed and to otherwise act in my
behalf with respect to all matters in connection with or related to the
Agreement.
The Dealer hereby acknowledges receipt of a copy of the Agreement,
which is in all respects acceptable to the Dealer.
The Dealer hereby acknowledges that ABTAC is given rights to make all
decisions, including the determination of any provisions of any Exhibit C to the
Agreement and give and receive certain notices with respect to the Agreement.
The Dealer hereby expressly agrees to such provisions, and agrees to be bound by
any notice or decision given, received or made by ABTAC pursuant to any
Agreement.
The Dealer agrees that it will not question the sufficiency of any
instrument executed by ABTAC, attorney-in-fact pursuant to this Power of
Attorney, notwithstanding that this instrument and/or the Agreement fails to
recite the consideration therefor or recites merely a nominal consideration; any
person dealing with the subject matter of such instrument may do so as if full
consideration therefor had been expressed therein. I hereby ratify and confirm
all that ABTAC, my attorney-in-fact has or shall lawfully do or cause to be done
by virtue hereof.
This Power of Attorney cannot be changed orally. It shall not be
affected, except for prospective revocation, by the subsequent disability,
incompetence, bankruptcy, liquidation or other circumstance of the principal.
This Power of Attorney may be revoked by the Dealer upon written notice to ABTAC
and to each FinCo with which the Dealer has entered into a Agreement, either by
its own signature or through the power herein granted, but such revocation shall
not effect any Agreement binding upon the Dealer prior to such revocation, which
Agreements shall remain binding upon the Dealer in all respects.
IN WITNESS WHEREOF, the undersigned a duly authorized representative
of the Dealer hereunto sets his hand as of this _______ day of
_______________________, 199_____.
((Dealer_Corp))
dba ((Dealer_DBA))
By: _______________________________
Name: ((Dlr_First)) ((Dlr_Last))
Title: ((Dlr_Title))
Page 4
EXHIBIT A (PAGE 2 OF 2)
STATE OF ______________)
: ss.:
COUNTY OF ______________ )
BE IT REMEMBERED, that on this ___ day of __________, 199__, before me
the undersigned, a Notary Public in and for the County and State aforesaid, came
______________, the ((Dlr_Title)) _______________ of ((Dealer_Corp)) dba
((Dealer_DBA)) a ((Entity)) duly organized, incorporated and existing under and
by virtue of the laws of ((STTxt)), who is personally known to me to be such
officer, and who is personally known to me to be the same person who executed,
as such officer, the within instrument on behalf of said company, and such
person duly acknowledged the execution of the same to be the act and deed of
said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal, the day and year last above written.
____________________________________
Notary Public
My commission expires:
_____________________
Page 5
EXHIBIT B
AUTO-BY-TEL ACCEPTANCE CORPORATION
MASTER RETAIL SALES AND LEASE
FINANCING AGREEMENT
THIS AGREEMENT AMONG the automobile dealer identified below ("Dealer") having
its principal place of business at the address identified below, and the finance
company identified below ("FinCo") having its principal place of business at the
address identified below, sets out the terms under which FinCo will purchase
retail installment contracts and/or leases and leased vehicles from Dealer and
the rights and obligations between Dealer and FinCo with regard to such retail
installment contracts and/or leases and leased vehicles.
PARAGRAPH A. INCORPORATION BY REFERENCE
--------------------------
PARTS I [INSERT II AND/OR III AND/OR IV] of the Auto-By-Tel Acceptance
Corporation Retail Sales and Lease Financing Agreement Standard Provisions
(herein called the "Standard Provisions"), a copy of which are attached hereto
as Annex A, are hereby incorporated herein by reference with the same force and
effect as though fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
---------------------
Each of the following provisions, which constitute part of this Agreement,
is numbered to conform with the format of the Standard Provisions:
((DEALER_CORP))
DBA ((DEALER_DBA))
Dated:__________________________ , 199____ .
[FINCO] ((Dealer_Corp))
By:
----------------------------
Authorized Signature - Title
((Dealer_DBA))
---------------------------- ((Address))
Street Address of Dealer
((City)) ((ST)) ((Dlr_Zip))
----------------------------
City and State
By: AUTO-BY-TEL ACCEPTANCE
CORPORATION, as
Attorney-In-Fact
By:
-----------------------
Name:
Title:
Page 6
EXHIBIT C
AUTO-BY-TEL ACCEPTANCE CORPORATION
MASTER RETAIL SALES AND LEASE
FINANCING AGREEMENT
STANDARD PROVISIONS
PART I -- PROVISIONS OF GENERAL APPLICABILITY
1. DEALER'S GENERAL WARRANTIES.
For the term of this Agreement, Dealer warrants and agrees that:
(a) Dealer has the power and authorization to enter into this Agreement,
and the person signing this Agreement binds Dealer to this Agreement.
(b) Dealer is duly organized under the laws of the state of its
organization, and it is and will remain in good standing in the state of its
organization.
(c) At the time that Dealer enters into a retail installment contract
("Contract") or lease which is submitted to FinCo and at the time such Contract
or lease and related leased vehicle (together, a "Lease Transaction")
(hereinafter, the term "Financing Contract" is used to describe Contracts or a
Lease Transactions, or, as the context requires, both) is assigned by Dealer to
FinCo, Dealer is properly licensed and authorized to enter into the Financing
Contract and sell such Financing Contract to FinCo. Dealer has all other
licenses required to conduct its business as presently conducted, and is in
compliance with all applicable laws, rules and regulations, including without
limitation, (i) all applicable laws relating to doing business under a trade
name or as a partnership, and (ii) all applicable requirements of the Fair
Credit Reporting Act and the Equal Credit Opportunity Act and all other federal,
state and local laws, rules and regulations applicable to the extension of
credit and consumer protection or otherwise applicable to the sale or lease of a
vehicle, including, without limitation, so called "fair lending rules".
(d) All documents and financial statements of Dealer, and any guarantors
of Dealer's obligations to FinCo, provided to FinCo pursuant hereto, either
prior to or after signing this Agreement, are accurate.
(e) If, after FinCo purchases a Financing Contract, Dealer receives any
payments due thereunder, Dealer shall promptly deliver the payments to FinCo.
(f) Dealer will not submit to FinCo credit information with respect to an
applicant if Dealer believes, or has reason to believe, such applicant did not
authorize the submission of such Application (defined below) to FinCo.
(g) Dealer has complied with all applicable transaction reporting
requirements including, without limitation, the requirement under Section 60501
of the Internal Revenue Code, as may be amended from time to time and its
implementing regulations, to report cash receipts of more than $10,000.
(h) Dealer will promptly forward to the proper authorities all federal,
state and local fees and taxes, including, without limitation, all applicable
federal luxury taxes due in connection with the sale of a vehicle relating to a
Financing Contract (each, a "Vehicle").
(i) Dealer does not charge its customers (each, a "Buyer") for filing fees
or other costs paid by Dealer to public officials to perfect FinCo's security
interest in the Vehicle, except where allowed by law, nor does Dealer make any
type of charge, including documentary or processing charges, which Dealer does
not make in any other cash transaction.
Page 7
2. DEALER LIABILITY.
(a) If any Dealer representation, warranty or covenant made in this
Agreement to FinCo is breached or untrue or FinCo reasonably believes is
breached or untrue prior to purchasing the Contract, FinCo may choose not to
purchase such Financing Contract. Dealer will indemnify and hold FinCo harmless
from any claim, suit, loss, liability or expense, including court costs and
attorneys' fees, incurred by FinCo in connection with such Financing Contract
which FinCo did not purchase.
(b) Upon Dealer's payment of the unpaid balance of a Financing Contract,
such Financing Contract shall be assigned and/or endorsed by FinCo to Dealer
without recourse and without warranties of any kind and sent by certified mail
to Dealer.
(c) If Dealer breaches this Agreement or any other agreement with FinCo
relating to a Financing Contract, Dealer shall pay FinCo upon demand all losses
and expenses incurred by FinCo as a result thereof, including attorney's fees
and costs of litigation.
3. ADVERTISING.
Dealer agrees not to identify FinCo in any advertising placed in any medium
(including signs on Dealer's premises) without prior written approval of FinCo.
Dealer shall indemnify FinCo for any losses or expenses, including attorney's
fees and costs of litigation, suffered by FinCo in any judicial or
administrative proceeding because of any claim or defense asserted against FinCo
as a result of any advertising placed by Dealer, regardless of FinCo's consent
to such advertising.
4. OFFSET.
FinCo may deduct from any deposit, security, funds, or obligation due
Dealer any amount Dealer owes FinCo under this Agreement or any other agreement
between FinCo and Dealer.
5. TERMINATION.
FinCo or Dealer may terminate the Agreement upon written notice to the
other party at the address specified below, Agreement, or such other address as
FinCo or Dealer may notify the other party from time to time. The termination
of this Agreement shall not release FinCo or Dealer from any obligations
incurred with regard to any Financing Contract purchased, or with regard to any
Financing Contract which FinCo has indicated it would purchase upon receipt of
satisfactory documentation. The indemnification, representations, warranties
and covenants provisions contained in this Agreement shall survive the
termination of this Agreement.
6. LAW GOVERNING.
The Agreement shall be governed by the laws of the state in which FinCo is
located, as set forth on the front of the Agreement. Should any part of this
Agreement be determined to be unenforceable by a court, such unenforceability
shall not affect the rest of this Agreement.
7. NOTICES.
Notices hereunder must be in writing addressed to the respective party at
the appropriate address set forth on the signature page of the Agreement or such
other address of which the party may give the other notice and will be mailed,
U.S. mail with first class postage prepaid. Notices will be effective two (2)
days after mailing. Each party will provide the other notice of a change in
such first party's address.
Page 8
8. MISCELLANEOUS.
No modification or waiver of any term of the Agreement or any amendments to
this Agreement shall be binding unless made by written agreement signed by an
authorized representative of Dealer and an authorized officer of FinCo. No
failure or delay by either party in exercising any right or remedy hereunder
shall operate as a waiver thereof. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. If any provision of this
Agreement is found invalid, the remaining provisions of this Agreement shall
survive. Neither this Agreement nor any of the activities contemplated hereby
shall be deemed to create any partnership, joint venture, agency or employer-
employee relationship between Dealer and FinCo. Dealer is not granted any
express or implied right to bind FinCo in any manner whatsoever. The Agreement
shall be binding upon the parties, their representatives, heirs, beneficiaries,
successors and assigns; provided, however, that this Agreement shall not be
-------- -------
assigned by Dealer without the prior written approval of FinCo. The Agreement
shall be effective only upon execution or acceptance by an authorized
representative of FinCo in the state in which FinCo is located as identified on
the front of this Agreement.
9. AMENDMENTS.
This Agreement may be amended only by (a) a separate writing which is dated
and executed by both FinCo and Dealer, or (b) a separate writing which is
received by Dealer from FinCo in which case the amendments in the writing
received by Dealer shall be deemed accepted without qualification by Dealer upon
submission of the first Financing Contract application to FinCo following
Dealer's receipt of the writing.
10. ASSIGNMENT.
Dealer cannot assign this Agreement or any rights under it without FinCo's
prior written permission. FinCo can assign this Agreement and its rights under
it without notice to or permission from Dealer. To the extent allowed by law,
FinCo can use and assign any information about leases and leased vehicles
purchased by FinCo.
11. ADDITIONAL DOCUMENTS AND SHOWINGS.
Dealer agrees to provide FinCo with such additional information and
documents as FinCo may reasonably request, including, but not limited to,
evidence of compliance by Dealer with all of Dealer's obligations hereunder,
evidence relating to all warranties and representations of Dealer hereunder, and
the most recent financial statements for Dealer and any guarantors of Dealer's
obligations to FinCo. Dealer hereby authorizes FinCo to investigate Dealer's
creditworthiness.
12. ACTIONS BY FINCO.
Dealer understands and agrees that FinCo may without notice to Dealer
extend the due dates of rental or installment payments due or to become due
under any Financing Contract, amend any Financing Contract by agreement with the
Buyer or otherwise deal with the Buyer or any other party obligated to FinCo in
connection with the transaction in whatever manner FinCo deems reasonable and
appropriate, without affecting Dealer's obligations to FinCo under this
Agreement. Dealer understands that FinCo reserves the right from time to time
to change its policy as to the type of Financing Contracts it will purchase.
The temporary or permanent discontinuance of the purchases of one of more types
of Financing Contracts shall not affect the terms of this Agreement which apply
to previously purchased Financing Contracts of any type.
13. LEGAL PROCEEDINGS.
If either party institutes legal proceedings to enforce any of the terms of
this agreement, the prevailing party in such proceeding shall be entitled to
recover its attorneys' fees and court costs incurred in the action.
Page 9
PART II -- PROVISIONS GOVERNING RETAIL INSTALLMENT CONTRACTS
1. SALE AND PURCHASE OF CONTRACTS.
(a) If a potential Buyer has been referred to FinCo pursuant to this
Agreement, wishes to enter into a retail installment contract ("Contract") with
Dealer, Dealer may solicit credit information concerning Buyer from Buyer,
provided it is provided to FinCo. Such information shall include a credit
application ("Application") completed by Buyer, an outline of the proposed terms
of the transaction, and such additional information as FinCo may request. FinCo
in its sole discretion will make a decision in the state in which the FinCo is
located as to whether it will purchase a Contract if documentation satisfactory
to FinCo is received. If FinCo decides it will purchase the Contract upon
receipt of such documentation, Dealer will execute an assignment of the Contract
to FinCo and send the Contract, together with the assignment, to FinCo.
(b) If all documentation referred to in Section 1(a) is received, FinCo
will purchase in the state in which the FinCo is located the Contract and pay
Dealer the amount financed as shown on the Contract.
2. ADDITIONAL PAYMENTS TO DEALER.
FinCo will determine the amount payable to Dealer in connection with the
purchase of a Contract pursuant to the provisions it shall provide Dealer from
time to time (the "Retail Plan Features"). Any such amount will be paid to
Dealer less any obligations of Dealer to FinCo. If the credits due Dealer are
insufficient to cover amounts owed to FinCo, the shortage will be paid promptly
by Dealer.
3. DEALER SUBVENTION
(a) From time to time Dealer may wish to offer its customers lower retail
rates and/or higher residual values (i.e., the "balloon" value, or last
scheduled payment amount under "Balloon Financings") than those ordinarily
offered by FinCo in connection with Contracts and Balloon Financings. In
addition, from time to time Dealer may wish to participate in automobile
manufacturers' programs which offer customers special finance interest rates
and/or higher residual values than those ordinarily offered by FinCo in
connection with Contracts and Balloon Financings. FinCo may be willing from
time to time to acquire Contracts and Balloon Financings originated through
Dealer pursuant to this Agreement which are subject to such rates and/or
residual values in accordance with the terms of this Agreement and the Retail
Plan Features.
(b) FinCo will announce its standard rates for Contracts and Balloon
Financings and residual values for Balloon Financings from time to time as
contemplated by this Agreement. If Dealer chooses to offer a Contract or
Balloon Financing using a lower rate and/or a higher residual value than FinCo
would ordinarily accept under this Agreement and if Dealer wishes that FinCo
acquire such Contract or Balloon Financing, Dealer will pay FinCo by check a
subsidy ("Support Payment") equal to, in the case of a residual enhancement, the
result of the calculations provided in the work sheet as FinCo may specify from
time to time, or in the case of a rate subsidy, the difference between what the
customer's scheduled total of payments would have been at FinCo's minimum rate
for such Contract or Balloon Financing and the actual total of payments stated
in that Contract or Balloon Financing. In the case of a manufacturer's program,
FinCo may make arrangements directly with the manufacturer for receipt of the
Support Payment. Dealer will also otherwise comply with such procedures as
FinCo may establish from time to time. Dealer will present the required Support
Payment to FinCo at the time the Contract or Balloon Financing is presented to
FinCo for funding, and if no Support Payment is submitted, FinCo will have no
obligation to fund that Contract or Balloon Financing. In the case of a
residual enhancement, Dealer will complete the appropriate work sheet and
include it with the documentation presented to FinCo for funding. In all other
respects, FinCo will acquire subsidized Contracts and Balloon Financings in
accordance with FinCo's standard procedures, including credit underwriting and
documentation requirements and, except as expressly provided herein, such
transactions will be subject to the
Page 10
provisions of this Agreement. Dealer acknowledges that no portion of the Support
Payment will be refunded by FinCo to Dealer in the event of early termination of
a Contract or Balloon Financing or otherwise.
(c) Despite any Support Payment, Dealer agrees that the cash price of the
Vehicle stated in each Contract or Balloon Financing and/or in the related
purchase order will be no higher than the price that the customer would pay in a
purchase solely for cash. Dealer will not directly or indirectly cause or allow
the Support Payment to be charged or passed along to any retail customer.
Dealer will comply with any laws requiring disclosure of the Support Payment as
part of the finance charge or requiring disclosure that the Support Payment may
affect the cash price. Dealer will treat the Support Payment as general
dealership overhead and will not charge it separately to credit customers.
Dealer will not discriminate against any customer on a basis prohibited by law
in making retail financing available at a reduced rate of finance charge, at a
higher residual value or otherwise. Dealer will not offer a subsidized rate on
a Contract or Balloon Financing if FinCo's loan documentation in Dealer's state
would require FinCo to offer a refinancing of the obligation at maturity at the
same rate and/or payment.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Dealer represents, warrants and covenants with respect to each Contract and
the assignment to FinCo thereof that:
(a) to the best of Dealer's knowledge (i) no statements made or furnished
to FinCo by Buyer, Dealer or any other person are untrue or incomplete; (ii)
Buyer has not financed the down payment of the Vehicle; (iii) Buyer is a bona
fide applicant having legal capacity to enter into the Contract; (iv) the
signature of Buyer on all documents is genuine; and (v) the amount stated in the
Contract to be due will in fact be due and payable at the time or times provided
therein free of any claims, defenses, setoffs or counterclaims; and (vi) Buyer
has never violated any laws concerning liquor or narcotics;
(b) Dealer has sold the Vehicle described in the Contract and the proceeds
of the Contract are to be used to pay for such Vehicle and related items;
(c) Dealer had indefeasible title to the Vehicle immediately prior to the
purchase by Buyer, and the right and authority to sell the Vehicle to Buyer,
free and clear of all liens and encumbrances;
(d) Dealer has, and has assigned to FinCo, good and sole title to the
Contract, free and clear of all liens and encumbrances;
(e) Dealer will secure and perfect for FinCo a security interest in the
Vehicle free and clear of any liens or encumbrances, and deliver to FinCo
written evidence satisfactory to FinCo of such security interest within six
months of the date of the Contract;
(f) the description of the Vehicle is true and complete in the Contract
and the Vehicle will be or has been duly delivered to and accepted without
revocation by Buyer;
(g) insurance or other coverage provided or arranged by Dealer does not
violate any applicable law or regulation and insurance documentation and rebates
of unearned premiums, if any, will be delivered to Buyer within the time
required by law;
(h) the Vehicle is insured by a company acceptable to FinCo against fire,
theft and collision, FinCo is loss payee and written evidence of such insurance
has been or will promptly be provided to FinCo;
(i) all optional credit insurance sold by Dealer to Buyer is for the full
term of the Contract and is limited to coverage of Buyer, including any co-
buyer;
Page 11
(j) Dealer has provided Buyer, and each co-buyer, with a completed
Contract and any other document as required by applicable law, and the
information filled in thereon by Dealer is accurate;
(k) each other instrument in connection with the Contract giving rights to
Dealer, including guaranties, and all signatures thereon are genuine, each such
instrument has been duly authorized and executed, all parties hereto are adults
with full legal capacity to contract and each such instrument is valid, binding
and enforceable in accordance with its terms and against all parties thereto
except as enforcement may be affected by bankruptcy and similar laws affected
creditors' rights generally;
(l) all agreements and warranties of Dealer relative to the Vehicle, other
than agreements relative to its acquisition by Dealer, are contained either in
the Contract or in this Agreement, and Dealer has made all disclosures required
by applicable law to be made in connection with the Contract including
disclosures required in any advertisement of the sale transaction and any
related purchase order;
(m) the conduct of Dealer in developing the sale transaction shall not
subject FinCo to suit or administrative proceeding under any state or federal
law, rule or regulation including, without limitation, the Federal Truth in
Lending Act the Federal Equal Credit Opportunity Act and the California Rees-
Levering Act;
(n) the Contract is not in default;
(o) except for monies which FinCo has agreed are to be retained by Dealer,
Dealer has not received any monies which Dealer shall not have transferred to
FinCo with the Contract, properly endorsed to FinCo where appropriate, and
Dealer has not loaned any of such sums to the Buyer;
(p) Dealer has furnished FinCo all credit information received by Dealer
relative to the contract and such information is, to the best of Dealer's
knowledge, true, complete and accurate;
(q) the Buyer is not an employee of Dealer or a member of such an
employee's immediate family; and
(r) possession of the Vehicle was not obtained by the Buyer's use of a
fraudulent scheme, trick or devise not otherwise covered elsewhere by these
warranties.
To the extent that any representation, warranty or covenant made by Dealer in
this Agreement differs from or is in conflict with any representation, warranty
or covenant made by Dealer in the assignment of any Contract, the
representation, warranty or covenant of this Agreement shall control.
5. FINCO'S REMEDIES UPON DEALER DEFAULT OR BREACH OF WARRANTY.
FinCo's purchase, or acceptance for purchase, of a Contract does not
prevent FinCo from exercising its rights against Dealer for a breach of the
requirements in Sections 1 and 2 or the warranties in Section 4 with respect to
such Contract. If Dealer breaches a warranty in this Agreement, or defaults in
the performance of an obligation in this Agreement, or a Contract purchased by
FinCo does not meet the requirements in Sections 1 and 2, then Dealer shall
repurchase from FinCo the Contract which is subject to the breach, default, or
failure to meet requirements. The repurchase shall be at the price and in the
manner described in Section 6. In addition to repurchase, FinCo shall have all
other rights and remedies available under applicable law and all of those
available under this Agreement. All of FinCo's rights and remedies are
cumulative. Should suit be initiated by FinCo to enforce any provision of this
Agreement, FinCo shall be entitled to an award of all reasonable costs incurred,
including attorney's fees. Any funds, leases, vehicles, or other property of
any kind of Dealer which comes into FinCo's possession secure Dealer's
obligations to FinCo and can be liquidated by FinCo and applied to Dealer's
obligations to FinCo. If Dealer breaches a warranty in this Agreement or
defaults in the performance of an obligation in this Agreement, FinCo is not
obligated to purchase any more Contracts from Dealer whether or not FinCo
approved the Contract before the default or breach.
Page 12
6. DEALER REPURCHASE OF CONTRACTS.
For each Contract which Section 5 requires Dealer to repurchase, Dealer
shall promptly pay FinCo, upon receipt of FinCo's demand, any or all of the
following amounts at the election of FinCo: (i) the unpaid balance of the
Contract affected by such breach or untruth; (ii) all losses and expenses
incurred by FinCo as a result of such breach or untruth; and (iii) out-of-pocket
expenses paid or incurred by FinCo in connection with the collection of any
amount due under any such Contract, including attorney's fees and costs of
litigation, whether by or against FinCo, and expenses with respect to
repossessing, storing, repairing and selling the Vehicle. In addition, Dealer
shall indemnify FinCo for any losses and expenses, including attorneys' fees and
costs of litigation, suffered by FinCo in any judicial or administrative
proceeding because of any claim or defense asserted against FinCo as a result of
any act or omission on the part of Dealer, including, at the election of FinCo,
the unpaid balance of such Contract.
PART III -- PROVISIONS GOVERNING LEASES AND LEASED VEHICLES
1. PURCHASE OF LEASES AND LEASED VEHICLES.
(a) FinCo shall purchase from Dealer each lease, and the leased vehicle,
that Dealer submits to FinCo for purchase if Dealer has provided FinCo with all
documentation and any other information which FinCo may require in connection
with the Lease Transaction, Lessee has the insurance required by the lease, and
the Lease Transaction (i) is documented with a lease contract form provided by
FinCo, (ii) has been properly executed by lessee and Dealer, (iii) has been
properly assigned by Dealer to FinCo, (iv) has been approved by FinCo no more
than 60 days before FinCo's receipt of the properly executed and assigned lease
from Dealer, and (v) complies with FinCo's purchase criteria and procedures,
including those in the handbooks, bulletins and other documents provided by
FinCo to Dealer.
(b) For each lease and leased vehicle purchased by FinCo from Dealer, the
purchase price shall be an amount agreed on by Dealer and FinCo, consistent with
FinCo's purchase criteria. The purchase price shall be payable by FinCo to
Dealer within ten (10) days after FinCo accepts a lease for purchase. At the
time Dealer submits a lease to FinCo for purchase, Dealer shall inform FinCo if
anyone is owed money for the leased vehicle. FinCo may pay the purchase price
either (i) jointly to Dealer and the person who is owed money for the vehicle;
or (ii) directly to such person, to the extent money is owed, and pay the
remainder to Dealer. FinCo may deduct from the purchase price payment any
amounts Dealer owes FinCo.
(c) To the extent not done at the time Dealer submits a lease to FinCo for
purchase, Dealer hereby assigns to FinCo all of its rights, title and interest
in and with respect to the lease and leased vehicle. Dealer hereby appoints
FinCo as Dealer's attorney in fact to act in Dealer's name to complete any
assignment, including the signing of Dealer's name on a lease and any vehicle
transfer and registration documents. Dealer authorizes FinCo to retain and
endorse any payments to Dealer received by FinCo which FinCo is entitled to in
connection with an assigned lease and leased vehicle. FinCo can assign to a
qualified intermediary FinCo's right to purchased leased vehicles from Dealer.
Without FinCo's prior consent, Dealer shall not facilitate any sublease or
assignment of a lease and leased vehicle purchased by FinCo.
2. SERVICE CONTRACTS.
(a) A leased vehicle submitted to FinCo for purchase can be covered by a
service contract if the form, administrator, and underwriter of the contract are
approved by FinCo and the contract is cancelable by the lessee and FinCo. The
lessee may pay Dealer in full for the service contract at the time the lease is
signed, or the cost to the lessee for the service contract may be included in
the capitalized cost of the lease to the extent allowed by FinCo's purchase
criteria.
(b) When Dealer becomes aware that a lessee has canceled a service
contract, Dealer shall immediately notify FinCo. In the event of any type of
cancellation of a service contract, the lessee shall be entitled to a refund of
the
Page 13
unearned portion of the service contract price as provided in the service
contract or the lease or as otherwise required by law, which ever provides for
the largest refund. Dealer shall be responsible for the payment of the refund up
to the amount Dealer collected or otherwise received in connection with the sale
of the service contract. Dealer shall remit payment of the refund to the lessee
or FinCo as instructed by FinCo. If so provided in the lease, the refund will be
subject to FinCo's security interest.
3. NO RECOURSE TO DEALER FOR LESSEE DEFAULT.
Unless otherwise agreed to by Dealer in writing, FinCo's purchase of leases
shall be without recourse to Dealer for the Lessee's failure to perform the
Lessee's obligations under the lease.
4. DEALER'S SPECIFIC WARRANTIES FOR EACH LEASE AND LEASED VEHICLE.
As to each lease and leased vehicle purchased by FinCo, Dealer warrants
that as of the date FinCo purchases the lease and leased vehicle:
(a) Dealer has, and has assigned to FinCo, good and sole title to the
lease and leased vehicle both of which are free and clear from all liens, claims
and encumbrances;
(b) Dealer has complied with all applicable state, federal and local laws
and regulations applicable to the Lease Transaction;
(c) Dealer has completed the lease contract form correctly. Dealer has
not made any oral or written promise, affirmation, warranty or representation to
any lessee that is not contained in the lease. The lessee is not in default
under the lease. All information provided or delivered by Dealer regarding the
leased vehicle is true, including but not limited to the description of the
vehicle and the installation of optional equipment. The lessee has no right to
revoke the lease and no offsets or counterclaims regarding, or defenses to, the
enforcement of the lease. The lessee has accepted the vehicle with all options
Dealer agreed to have installed and with the vehicle in good operating order and
in the condition represented by Dealer;
(d) Dealer has titled and registered the leased vehicle, or has made
application therefor, as instructed by FinCo;
(e) the Lease Transaction complies with the requirements in Section 1 and
Section 4;
(f) the lessee has paid to the Dealer all amounts payable to Dealer by the
lessee for the Lease Transaction. Dealer has paid, or will pay when due, all
taxes due for Dealer's sale and ownership of the leased vehicle, except to the
extent that FinCo informs Dealer in writing that FinCo will remit the sales tax;
(g) Dealer has accurately explained the lease provisions to the lessee.
Dealer has negotiated and explained the lease in English, unless Dealer complied
with applicable laws for non-English transactions and notified FinCo in writing;
(h) all credit information provided or delivered by Dealer as to the
lessee is true, complete and accurate to the best of Dealer's information and
belief. Dealer has verified that the lessee named on the lease is the person
who signed the lease and is the person identified in, and who signed, the credit
application as the applicant. Dealer does not know of any facts not told to
FinCo in writing which indicate that the lease will be uncollectible or
unenforceable or that the lessee will not be the principal driver of the leased
vehicle;
(i) the lease and all signatures thereon are genuine, the lease has been
duly authorized and executed by the lessee, the lessee is an adult with full
legal capacity to contract and the lease is valid and binding upon the lessee;
Page 14
(j) each other instrument executed in connection with the lease giving
rights to Dealer, including guaranties, and all signatures thereon are genuine,
each such instrument has been duly authorized and executed, all parties thereto
are adults with full legal capacity to contract and each such instrument is
valid, binding and enforceable in accordance with its terms and against all
parties thereto except as enforcement may be affected by bankruptcy and similar
laws affecting creditor's rights generally;
(k) all agreements and warranties of Dealer relative to the vehicle, other
than agreements relative to its acquisition by Dealer, are contained either in
the lease or in this Agreement, and Dealer has made all disclosures required by
applicable law to be made in connection with the lease including disclosures
required in any advertisement of the Lease Transaction and any related purchase
order;
(l) an exact, completely filled-in legible copy of the lease was delivered
to the lessee prior to the time of its execution;
(m) the vehicle has not been delivered to the lessee but shall have been
delivered to the lessee together with all accessories and opinions agreed by
Dealer to be delivered with the vehicle and accepted for purposes of the lease
prior to transmittal of the lease to FinCo;
(n) Dealer has orally verified that the lessee has in effect insurance
providing the coverages required under the lease and providing FinCo the rights
contemplated to be available to the lessor under the lease (and such coverages
and rights will be in effect for at least 30 days after delivery to the lessee
of the vehicle);
To the extent that any representation, warranty or covenant made by Dealer
in this Agreement differs from or is in conflict with any representation,
warranty or covenant made by Dealer in the assignment of any Lease Transaction,
the representation, warranty or covenant of this Agreement shall control.
5. FINCO'S REMEDIES UPON DEALER DEFAULT OR BREACH OF WARRANTY.
FinCo's purchase, or acceptance for purchase, of a lease and leased vehicle
does not prevent FinCo from exercising its rights against Dealer for a breach of
the requirements in Section 1 or the warranties in Section 4 with respect to
such Lease Transaction. If Dealer breaches a warranty in this Agreement, or
defaults in the performance of an obligation in this Agreement, or a Lease
Transaction purchased by FinCo does not meet the requirements in Section 1 or
the warranties in Section 4, then Dealer shall repurchase from FinCo the Lease
Transaction which is subject to the breach, default, or failure to meet
requirements. The repurchase shall be at the price and in the manner described
in Section 6. In addition to repurchase, FinCo shall have all other rights and
remedies available under applicable law and all of those available under this
Agreement. All of FinCo's rights and remedies are cumulative. Should suit be
initiated by FinCo to enforce any provision of this Agreement, FinCo shall be
entitled to an award of all reasonable costs incurred, including attorney's
fees. Any funds, leases, vehicles, or other property of any kind of Dealer
which comes into FinCo's possession secure Dealer's obligations to FinCo and can
be liquidated by FinCo and applied to Dealer's obligations to FinCo. If Dealer
breaches a warranty in this Agreement or defaults in the performance of an
obligation in this Agreement, FinCo is not obligated to purchase any more leases
or leased vehicles from Dealer whether or not FinCo approved the Lease
Transaction before the default or breach.
6. DEALER REPURCHASE OF LEASES.
(a) For each Lease Transaction which Section 5 requires Dealer to
repurchase, the purchase price shall be the sum of (1) all amounts past due
under the lease, (2) the depreciation portion of the remaining unpaid monthly
payments, (3) the residual value of the leased vehicle, and (4) any rate
participation paid by FinCo to Dealer. In addition to the repurchase price,
Dealer shall pay FinCo (i) the amount of any tax assessed on the repurchase, and
(ii) any amounts for fees and taxes which the lease requires the lessee to pay.
Page 15
(b) Dealer shall pay the repurchase price, and applicable taxes within ten
(10) days after FinCo's request. Dealer shall pay the repurchase price
regardless of whether or not the leased vehicle is available to Dealer or the
payment obligations in the lease have been modified. Payment of the repurchase
price shall assign to Dealer, without recourse and "AS IS WHERE IS", all of
FinCo's right, title and interest in and to the lease and leased vehicle. If
Dealer acquires any rights in the vehicle before paying FinCo the repurchase
price, FinCo shall have a security interest in those rights to secure payment of
the repurchase price.
7. MAINTENANCE OF VEHICLES.
FinCo shall have no obligation to service any leased vehicle purchased by
FinCo from Dealer. Dealer shall service each leased vehicle purchased by FinCo
from Dealer at the Lessee's or FinCo's request to the extent of Dealer's best
servicing capabilities and at prices consistent with prices charged to other
customers of Dealer. Dealer shall perform applicable warranty service for each
leased vehicle purchased by FinCo from Dealer. If a leased vehicle purchased by
FinCo is returned to Dealer in connection with an early termination or scheduled
termination of the lease Dealer shall within two (2) business days notify FinCo
and safe keep the leased vehicle until recovered by FinCo.
8. ADDITIONAL PAYMENTS TO DEALER.
FinCo will determine the amount payable to Dealer in connection with Lease
Transactions pursuant to the provisions it shall provide Dealer from time to
time (the "Retail Plan Features"). Any such amount will be paid to Dealer less
any obligations of Dealer to FinCo. If the credits due Dealer are insufficient
to cover amounts owed to FinCo, the shortage will be paid promptly by Dealer.
9. LEASE CONTRACT FORMS.
FinCo shall provide Dealer with fill-in-the-blanks lease contract forms for
Lease Transactions to be submitted by Dealer. The preprinted part of the
contract forms will meet FinCo's purchase criteria for acceptable lease contract
forms. FinCo makes no representations or warranties of any kind, express or
implied, as to the form, substance or enforceability of any such lease contract
forms. Dealer acknowledges that if it enters into a lease using a lease
contract form provided by FinCo, then the lease will be binding on Dealer and
the lessee to the extent required by law, whether or not FinCo purchases the
lease.
Page 16