Confidential Treatment Requested
Exhibit 10.37
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
THIS AGREEMENT ("Agreement") is made effective as of this 30th day of
June 2000 ("Effective Date") by and between Xxxxxxx.xxx, Inc. ("Autoweb") a
Delaware corporation having its principal place of business at 0000 Xxx Xxxxxx,
Xxxxx Xxxxx, XX 00000, and XxxxXxxxxx.xxx, Inc., a Delaware corporation having
its principal place of business at 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, XX,
00000 ("CarsDirect"). Autoweb and CarsDirect may be referred to individually as
a "Party" and collectively as the "Parties." Capitalized terms used but not
defined in the body of this Agreement are as defined on Exhibit B hereto.
RECITALS
WHEREAS, Autoweb is a consumer automotive Internet service;
WHEREAS, CarsDirect is a consumer automotive Internet service;
WHEREAS, the Parties have previously entered into that certain
Strategic Co-Marketing Agreement dated as of March 16, 2000 (the "Prior
Agreement") for the purpose of creating a long-term commercial and strategic
relationship which leverages Autoweb's ability to generate a significant number
of "buy" oriented consumers and CarsDirect's ability to offer consumers a
valuable online automotive e-commerce transaction experience;
WHEREAS, pursuant to the terms of the Prior Agreement, CarsDirect has
previously delivered to Autoweb a stock certificate representing 576,701 shares
of CarsDirect Series D Preferred Stock (the "Stock Certificate"); and
WHEREAS, the Parties desire to amend and restate the Prior Agreement as
provided herein.
NOW, THEREFORE, in reliance upon the foregoing facts, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the mutual agreements hereinafter set
forth, the Parties agree as follows:
AGREEMENT
1. EXCLUSIVITY AND PROMOTION
1.1 CarsDirect Restrictions. During the Term, CarsDirect shall not
-----------------------
fulfill a Direct Buying Channel on the website(s) of [ ** ]
("Autoweb Competitor"). The provisions contained in this Section
1.1 shall be of no further force or effect in the event of a
Change of Control of Autoweb Competitor.
1.2 Autoweb Restrictions. During the Term, Autoweb shall not (i)
--------------------
itself or through the engagement of any third party other than
CarsDirect fulfill a Direct Buying Channel on the Autoweb Site or
(ii) provide a Direct Buying Channel on the Autoweb Site other
than as fulfilled by CarsDirect; provided, however, Autoweb may
refer such Visitors to a third party
1
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
so long as (a) such Visitors voluntarily select an Automotive
Buying Channel other than the Direct Buying Channel ("Alternative
Automotive Buying Channel") and (b) such third party processes
such Visitors in a manner consistent with such Alternative Auto-
motive Buying Channel. To the extent that a third party which pro-
vides a Direct Buying Channel on the Web, fulfills an Automotive
Buying Channel on the Autoweb Site which is not a Direct Buying
Channel, that third party shall be treated in an equal manner to
all other vendors fulfilling that Automotive Buying Channel. In
the event that Portal Restrictions exclude CarsDirect from
accessing Visitors in connection with one or more of Autoweb's
third party website traffic relationships, such Visitors shall
not be presented with a Direct Buying Channel on the Autoweb Site.
Notwithstanding the foregoing contained in this Section 1.2,
Autoweb may engage any third party to fulfill a Direct Buying
Channel on the Autoweb Site presented to consumers who request to
purchase an Automobile in Dark Areas or Non-Serviced Areas (a
"Third-Party Engagement"). In the event that CarsDirect accepts
Direct Consumers in any former Dark Area, Autoweb, shall use best
efforts to discontinue any Third-Party Engagement in such former
Dark Area as soon as possible but in no event later than three (3)
months following a request by CarsDirect. In the event that
CarsDirect accepts Direct Consumers in any former Non-Serviced
Area, Autoweb shall use best efforts to discontinue any
Third-Party Engagement in such former Non-Serviced Area as soon as
possible but in no event later than three (3) months following a
request by CarsDirect. Also, no Automobile manufacturer
relationships are restricted and existing relationships may
continue.
Autoweb shall provide CarsDirect (i) no less than [ ** ] prior
written notice of any Third Party Engagement and (ii) the first
opportunity to fulfill Direct Buying Channel Services in the
geographic area(s) subject to the notice.
1.3 Autoweb Direct Channel Promotion. It is understood that Autoweb
--------------------------------
will continue to provide consumers with multiple methods for
purchasing an Automobile ("Buying Method(s)") on the Autoweb Site
("Automotive Buying Channels"). These Automotive Buying Channels
include or may include the Referral Buying Channel (where the
consumer's personal and desired Automobile information are
gathered by Autoweb; the consumer is provided a single or
presented with multiple vendors; and the consumer is forwarded to
a vendor to consummate the purchase), the Direct Buying Channel
(where some level of personal information may be gathered by
Autoweb from the consumer; the consumer is presented with an
upfront price for an Automobile from a single vendor and the
consumer purchases the Automobile through that vendor, such
purchase occurring without interaction by the consumer with an
Automobile dealer), auctions, reverse auctions, classified
listings or Automobile manufacturer build-to-order. Any Automotive
Buying Channel may incorporate a database of dealer inventory.
For the Term of this Agreement, Autoweb will provide similar or
more prominent fixed placement promotion for the CarsDirect Direct
Buying Channel versus every other Automotive Buying Channel on the
Autoweb Site (including any fixed positions in the Buy Section).
Autoweb will provide no choice comparison of Automotive Buying
Channels which disadvantages the CarsDirect Direct Buying Channel
by presenting it below the fold versus other choices above the
fold. Excluding Dark Areas, Non-Serviced Areas and Portal
Restrictions, throughout the Autoweb Site, Autoweb will expose an
equal or greater percentage of Visitors to the Autoweb Site to the
CarsDirect Direct Buying Channel relative to any other Automotive
Buying Channel. CarsDirect shall receive no promotion which is
2
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
expressly prohibited by existing or future (i) written agreements
with third parties providing website traffic to Autoweb ("Portal
Restrictions") or (ii) applicable laws or, where adjudicated as
legally binding upon Autoweb by a court of competent jurisdiction,
written Automobile manufacturer restrictions specific to
revocation of Automobile dealer licenses ("Regulatory
Restrictions"). Autoweb will seek to ensure that the CarsDirect
Direct Buying Channel is not restricted by existing or future
Portal Restriction. Further, Autoweb will use best efforts to
enable CarsDirect and the CarsDirect Direct Buying Channel to
comply with existing and future Portal Restrictions. Additionally,
Autoweb will work with CarsDirect to ensure that CarsDirect and
the CarsDirect Direct Buying Channel comply with existing and
future Regulatory Restrictions.
1.4 CarsDirect Referral Channel Promotion. CarsDirect will offer to
-------------------------------------
Autoweb the non-exclusive opportunity to fulfill any Referral
Buying Channel it provides to consumers on the CarsDirect Site or
the Autos Site, subject to the terms and conditions contained in
Section 4. CarsDirect and Autoweb shall negotiate in good faith
any terms and conditions of the Referral Channel Promotion
contemplated in this Section 1.4 not addressed in Section 4.
1.5 Autoweb Change of Control. If Autoweb experiences a Change of
-------------------------
Control, this Agreement will continue in full force and effect,
including the provisions regarding the placement and prominence of
CarsDirect and the Direct Buying Channel on the Autoweb Site.
1.6 CarsDirect Change of Control to or Merger with Autoweb Competitor.
-----------------------------------------------------------------
Subject to Section 1.1, if CarsDirect gains control of Autoweb
Competitor or looses control to Autoweb Competitor, the Agreement
will continue in full force and effect except that the
exclusivities of Section 1.2 shall no longer apply.
2. FLOW OF DIRECT CONSUMERS TO CARSDIRECT
2.1 Referrals and Banners. During the period commencing on [ ** ]
---------------------
and ending on [ ** ] ("Referral Period") Autoweb shall deliver
to CarsDirect Referrals and Banners according to Exhibit B. In
consideration for this delivery of Referrals and Banners,
Autoweb shall receive from CarsDirect shares of CarsDirect
Series D Preferred Stock (as appropriately adjusted for
conversions and reclassifications) according to Exhibit B
("Referral Shares"). For the Referral Period, CarsDirect
agrees that the figures provided in Exhibit B are actual
results reflecting Autoweb system reports and agreed to
calculations. No further billing documentation other than this
contract will be required for payment which will be made
according to Section 6. No credits or other future adjustments
will be applicable to payment for the Referral Period.
2.2. Leads. Each quarter during the Term, Autoweb shall deliver
-----
consumers to CarsDirect via any combination of buttons,
banners, or other links associated with any amount of personal
or Automobile information as reasonably agreed to by the
parties ("Direct Consumers"). CarsDirect will pay to Autoweb,
at the conclusion of each month, Lead Fees for Leads converted
from Direct Consumers based on Exhibit B. These payments will
be made by way of wire transfer in accordance with written
wire transfer instructions provided by Autoweb. In no quarter
shall conversion from Direct Consumers fail to achieve either
(i) [ ** ] or more of the Lead Hurdle in [ ** ] or (ii) [ ** ]
or more of the Lead Hurdle [ ** ].
3
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
2.3. Lead Conversion. Attached hereto as part of Exhibit B is a
---------------
schedule of CarsDirect's make and model Lead referral
parameters (collectively "Lead Parameters"). CarsDirect shall
have the right to modify the Lead Parameters upon one (1)
business day's notice to Autoweb. Direct Consumers that do not
satisfy the Lead Parameters or include associated information
that (i) is inaccurate (e.g. omissions, misstatements, false
information, duplicates within a thirty-day period, etc.),
(ii) relates to Automobiles that CarsDirect does not (or
cannot) readily procure, (iii) results in data mapping errors
caused by Autoweb or inconsistencies between the Autoweb
Configurator and the CarsDirect Configurator or (iv) relates
to the purchase of an Automobile in Dark Areas or Non-Serviced
Areas shall be referred to as "Undesirable Direct Consumers."
The Parties acknowledge that Undesirable Direct Consumers
shall not become Leads until such inaccuracies are remedied.
The Parties will work together to reduce Undesirable Direct
Consumers.
If the Lead Conversion materially changes, the parties will
work together to find a reasonable financial or delivery
solution.
2.4. Dark Areas and Non-Serviced Areas. CarsDirect will notify
---------------------------------
Autoweb as soon as reasonably practicable after CarsDirect
becomes aware of the likelihood that a given
make/model/year/zip/trim/finance type combination ("Area(s)";
these Areas can be identified by any subset of components)
presents a regulatory or operational environment which
CarsDirect determines to be unfavorable ("Dark Area(s)"). Upon
such notice and the request of CarsDirect, Autoweb will stop
delivering Direct Consumers from such new Dark Areas.
CarsDirect will notify Autoweb as soon as reasonably
practicable of any changes to its planned ability to convert
Leads in specified Areas ("Rollout Schedule"; the current
version is listed in Exhibit B). Areas that are not on
CarsDirect's Rollout Schedule for a given month and are not
Dark Areas are "Non-Serviced Areas."
2.5. Equal Treatment and Non-Forwarding of Direct Consumers.
------------------------------------------------------
CarsDirect shall process Direct Consumers in order to convert
them into Leads in its ordinary and primary course of
business, as may be amended from time to time and will not
forward Direct Consumers to any third party. CarsDirect shall
not be obligated to develop or employ special, unique or
differentiated business practices with respect to the
processing or conversion of Direct Consumers (e.g., dedicated
customer service staff, outbound calling efforts, etc.).
CarsDirect shall offer Direct Consumers the same pricing and
services as those generally available to consumers who
directly access the CarsDirect Site via
xxxx://xxx.xxxxxxxxxx.xxx.
-------------------------
2.6. Lead Bonus Payments. If during any given quarter during the
--------------------
Term Autoweb delivers Direct Consumers to CarsDirect which
convert to Leads at least at the Lead Hurdle applicable to
such quarter, CarsDirect shall deliver to Autoweb shares of
CarsDirect Series D Preferred Stock (as adjusted for any
conversions or reclassifications) according to Exhibit B (the
"Lead Shares") within five (5) business days following the end
of such quarter.
3. WEBSITE INTEGRATION
3.1 Lead Delivery. The Parties shall cooperate to a commercially
-------------
reasonable extent regarding the development of the technical
interfaces and other requirements necessary for the Co-Branded
4
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
Site to accept Direct Consumers after those Direct Consumers
have selected their desired Automobile make, model and trim
using the then-current Autoweb Configurator.
3.2 Option Mapping. The Parties shall meet no later than [ ** ]
--------------
to develop a project plan with respect to developing the
additional technical and data-mapping interfaces and other
requirements necessary for the Co-Branded Site to accept
Direct Consumers after they have selected their desired
Automobile make, model, trim, color and options using the
then-current Autoweb Configurator.
3.3 Automobile Sales. The Parties shall work together to integrate
----------------
CarsDirect's offerings into the Autoweb Site and to further
refine CarsDirect's transactional processes to increase Leads
and conversion from Leads to Automobile sales.
3.4 Framed Site. CarsDirect's will develop a Co-Branded Site by
-----------
[ ** ]. This Co-Branded Site shall be developed in an effort
to improve conversion from Direct Consumers to Leads. This
Co-Branded Site shall also be developed in a manner which
complies with [ ** ] style guide requirements provided to
Autoweb and shared with CarsDirect as of the Effective Date.
In the event that [ ** ] Portal Restrictions exclude
CarsDirect from accessing its consumers despite the
development by CarDirect of a Co-Branded Site meeting [ ** ]
above referenced style guide, Autoweb shall reimburse to
CarsDirect half its reasonable expenses specific to the
development of the Co-Branded Site and primarily applicable
only to the production of partner Co-Branded Sites.
4. REFERRAL TO AUTOWEB OF PURCHASE REQUEST TRAFFIC
In connection with the Tracked Links that CarsDirect will establish on
the CarsDirect Site and the Autos Site, Autoweb will pay CarsDirect a
fee for each qualified Autoweb Purchase Request that is submitted to
the Autoweb Site through Tracked Links. Such fee shall be equal to
[ ** ] of Autoweb's average net revenue from such Autoweb Purchase
Request, net revenue defined as gross revenue less any reserve for
loss contingencies. Autoweb shall pay to CarsDirect such fee on a
monthly basis no later than forty-five (45) days from the end of the
month.
5. ACKNOWLEDGEMENT OF ADDITIONAL CONSIDERATION.
The Parties acknowledge that as further inducement for Autoweb to enter
into the Prior Agreement and grant the exclusivities thereunder and
hereunder, CarsDirect purchased from Autoweb 750,000 shares of Autoweb
common stock at a per share purchase price equal to the average of the
closing price for the thirty (30) trading days prior to March 16, 2000,
or $7.93 per share, multiplied by 1.35 (for a per share price of
$10.616).
6. DELIVERY OF STOCK CERTIFICATE
Within five (5) business days following the Effective Date, Autoweb
shall deliver the Stock Certificate to CarsDirect and CarsDirect shall
deliver to Autoweb a stock certificate representing 152,797 shares of
CarsDirect Series D Preferred Stock - the Referral Shares (as defined
in Section 2.1) and 2Q00 Lead Shares (as defined in Section 2.6).
5
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
7. RECORDING OF TRAFFIC
To the extent feasible, CarsDirect will authorize both Media Metrix and
Xxxxxxx/NetRatings to record all page views from the Co-branded Site as
Xxxxxxx.xxx traffic. CarsDirect shall count all unique consumer visits
to the Co-branded Site as CarsDirect unique visitors. Should
alternative reporting means become available which allow for Autoweb
and CarsDirect each to be credited with traffic (page views and unique
visitors), the Parties shall agree to comply with such reporting means.
8. AUDIT RIGHTS
8.1 Autoweb Review Rights. Subject to the confidentiality
---------------------
obligations herein, Autoweb has the right, at its expense to
have reviewed CarsDirect's directly relevant books and records
for the purpose of verifying the number of Leads. Such review
will be made not more than twice per year, on not less than
fifteen (15) business days written notice, during regular
business hours, by a nationally recognized accounting firm
which is reasonably acceptable to CarsDirect. CarsDirect will
provide reasonable accommodation thereof. In no event shall
Autoweb review the same time period (or any portion thereof)
more than once. If such review reflects Leads greater than
those reported by CarsDirect, CarsDirect will provide Autoweb
with prompt payment for the deficiency. If such review
indicates underpayments of greater than 10% but not less than
$10,000 from the figures provided by CarsDirect, CarsDirect
will also pay all reasonable costs of such review.
8.2 CarsDirect Review Rights. Subject to the confidentiality
------------------------
obligations herein, CarsDirect will have the right, at its
expense to have reviewed Autoweb's directly relevant books and
records for the purpose of verifying (i) the number of Leads
delivered to CarsDirect and (ii) CarsDirect Relative
Placement. Such review will be made not more than twice per
year, on not less than fifteen (15) business days written
notice, during regular business hours, by a nationally
recognized accounting firm which is reasonably acceptable to
Autoweb. Autoweb will provide reasonable accommodation
thereof. In no event shall CarsDirect review the same time
period (or any portion thereof) more than once. If such review
reflects Leads delivered to CarsDirect less than those
reported by Autoweb, Autoweb will provide CarsDirect with
prompt payment for the deficiency. If such review indicates a
discrepancy of greater than 10% from the figures provided by
Autoweb, Autoweb will also pay all reasonable costs of such
review.
8.3 Extranet Development. By a mutually agreed upon date,
--------------------
CarsDirect shall make available to Autoweb extranet access to
the following information (with respect to Direct Consumers)
on a real-time or day-lag basis: (i) page views, (ii)
Referrals, (iii) Leads, (iv) Automobile sales and (v) agreed
upon data to facilitate operational enhancements (E.G.
outbound calling efforts, rejected Direct Consumers). By a
mutually agreed upon date, Autoweb shall make available to
CarsDirect extranet access to the following subject to
reasonable technical availability and frequency: (i)
impressions of the Direct Buying Channel placements, (ii)
click-through rates with respect to each element on each page
of the Autoweb Site that references CarsDirect and/or the
Direct Buying Channel and (iii) the percentage of Visitors to
the Autoweb Site that are exposed to CarsDirect and/or
CarsDirect's Direct Buying Channel relative to the number of
Visitors to the Autoweb Site that are exposed to other Buying
Channels (the "CarsDirect Relative Placement").
9. COOPERATIVE DEALER AND OEM NETWORKS
6
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
Subject to contractual limitations between CarsDirect and Automobile
dealers and Automobile dealer groups and consolidators, Autoweb shall
have the right to offer to its current and future franchised Automobile
dealers participating in the Autoweb network the opportunity to
participate in the Direct Buying Channel program contemplated herein
and as further described in Exhibit F hereto, provided each such Dealer
executes a CarsDirect Dealer Agreement with CarsDirect and continues to
meet the standards for such inclusion, as may be amended from time to
time. Such standards may include but not be limited to (i) maintaining
a dedicated Internet department, (ii) meeting certain inventory and
geographic criteria and (iii) meeting minimum CSI standards. CarsDirect
shall have the right to offer to its current and future Dealers the
opportunity to participate in the Autoweb Dealer Referral program
contemplated herein, provided such inclusion meets mutually determined
standards for such inclusion.
10. COMMERCE PARTNERS AND PRODUCTS
Autoweb reserves the right to enter into commercial relationships with
commerce partners, including but not limited to those providing
finance, insurance, roadside assistance, warranty products, and certain
forms of purchasing Automobiles, provided such agreements are
consistent with the terms and conditions of this Agreement and the
exclusivities provided herein. CarsDirect will retain the right to
offer to Leads financing, insurance, warranty, roadside assistance and
other products. The Parties will negotiate regarding a possible
commercial relationship in the future whereby CarsDirect products are
promoted on the Autoweb Site and Autoweb products are offered on the
CarsDirect Site. Neither Party shall be obligated to enter into such a
relationship.
11. ADVERTISING
Autoweb shall have the right to sell and serve all advertising, revenue
generating and promotional positions (including sponsorships) on pages
of the Autoweb Site. CarsDirect shall have the right to sell and serve
all advertising, revenue generating and promotional positions
(including sponsorships) on pages of the Co-Branded Site and the
CarsDirect Site, if any. Neither Party shall display or exhibit on any
page of the Co-Branded Site any graphic or textual link, advertisements
or other promotions that in any manner or fashion reference, promote or
feature, or provide any link to a site identified with or controlled by
any Internet Automobile buying service. Further, at such point that a
Direct Consumer begins to submit her contact information, Autoweb
agrees not to serve advertisements with respect to products or services
which are competitive to those offered by CarsDirect.
12. AUTOWEB CONSUMER BENEFITS
Subject to applicable laws, Autoweb, at its expense, may offer
automotive specials and promotional offers for consumers on the Autoweb
Site. Subject to applicable laws and at Autoweb's expense, CarsDirect
will use commercially reasonable efforts to integrate such specials or
promotional offers in the Autoweb Direct offering where appropriate
where such specials or offers do not conflict with CarsDirect's product
and service offerings. CarsDirect will not disadvantage Direct
Consumers as it pertains to specials, offers, incentives, and
promotions that are generally available on the CarsDirect Site.
CarsDirect will collaborate with Autoweb to create and implement
special offers to Direct Consumers.
13. TERM AND TERMINATION
7
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
13.1 Term. This Agreement shall commence on the Effective Date and
----
shall remain in effect through [ ** ] from the Effective
Date (the "Initial Term") unless terminated sooner as
provided below. The Parties may elect to renew the Agreement
for an additional [ ** ] term on mutually agreeable terms
(the "Renewal Term"). The Initial Term and the Renewal Term,
if any, shall be referred to collectively herein as the
"Term".
13.2 Termination for Breach. Notwithstanding anything to the
----------------------
contrary stated herein, each of CarsDirect and Autoweb shall
have the right to terminate this Agreement for material breach
by the other Party. Each Party has the right to terminate at
any time for material breach of the other Party after thirty
days from the effective date of written notice specifying the
alleged breach, provided that the breaching Party fails to
remedy said breach to the non-breaching Party's reasonable
satisfaction within thirty (30) days of its receipt of said
notice of breach. Such thirty (30) day period is waived with
respect to any breach that cannot be cured within such thirty
(30) day period. A material breach of either party includes
but is not limited a breach of the Exclusivity and Promotion
provisions of Section 1 of this Agreement.
13.3 Termination on Business Discontinuation or Bankruptcy. Either
-----------------------------------------------------
Party shall have the right to terminate this Agreement
immediately upon notice to the other Party if at any time the
other Party discontinues business or is adjudicated as
bankrupt, files a voluntary, or is the subject of an
involuntary petition in bankruptcy or reorganization.
13.4 Effect of Termination. In the event of expiration or
---------------------
termination of this Agreement, each Party shall use its best
efforts to return any property provided by the other Party for
the purposes of this Agreement, and particularly Confidential
Information (as defined below), to the other Party. All
amounts owing under this Agreement for services rendered prior
to termination shall become immediately due and payable. Upon
termination, all rights of CarsDirect to use Autoweb's
trademarks shall immediately cease and all rights of Autoweb
to use CarsDirect's trademarks licensed content or technology
shall immediately cease.
8
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
14. CONFIDENTIALITY
14.1 The Parties agree and acknowledge that, as a result of
negotiating, entering into and performing this Agreement each
will have contact with the other's information of substantial
value which is not generally known in the trade and which
gives each Party an advantage over its competitors who do not
know or use such information, including, but not limited to
sales and customer information and business and financial
information, techniques, processes, inventions, and
developments relating to the business, products, practices or
techniques of the Parties (hereinafter referred to as
"Confidential Information"). The Parties hereto shall at all
times, regard and preserve as confidential such Confidential
Information obtained by the other from whatever source,
whether oral or written, and regardless of whether same is
labeled "confidential," and will not, during the period of
this Agreement or thereafter, publish or disclose any part of
such Confidential Information in any manner, or use the same
except on behalf of the other Party, without the prior written
consent of the other Party. Provided further it shall not be a
breach of this Agreement if this Agreement is filed or its
terms are disclosed as required in connection with a
registration statement or report filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended or the Securities Exchange Act of 1934, as amended and
the regulations promulgated thereunder, as applicable,
provided that the Party making such filing or disclosures
consults with the other Party prior to any such filing or
disclosure.
14.2 Each Party hereby agrees that all notes, data, sketches,
drawings and other documents and records, and all material and
physical items of any kind, including reproductions and copies
thereof, which relate in any way to the business, products,
practices or techniques of the other Party, or contain
Confidential Information made by the other Party or that come
into the possession of either such Party from or on behalf of
the other Party by reason of this Agreement, shall remain the
property of the other Party and shall promptly be surrendered
to the other Party at the expiration or termination of this
Agreement.
14.3 The Parties agree they will not disclose to the other, or
induce the other to use, any invention or confidential
information belonging to any third Party, if such disclosure
or use violates Intellectual Property Rights of, or
confidentiality obligations between the Party disclosing or
inducing, and such third Party.
14.4 A Party's obligations under this Paragraph shall not apply to
any particular portion of the Confidential Information when
that Party can document that: (i) the portion was in the
public domain at the time of communication thereof to the
other; (ii) the portion was developed by employees or agents
of each Party independently of and without reference to any
Confidential Information or other information that the other
Party has disclosed in confidence to any third Party; (iii)
the portion was communicated to the Parties by a third Party
free of any obligation of confidence; or (iv) disclosure of
the portion is required by law, provided that the disclosing
Party gives the other Party prompt notice of the request for
disclosure, cooperates with the other Party in obtaining a
protective order or other remedy, and discloses only that
portion of the Confidential Information which it is legally
compelled to disclose.
15. PRIVACY OF CONSUMER DATA
9
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
Each Party represents and warrants that it has effective privacy
policies and procedures in place for the protection of consumers. Each
Party further represents and warrants that it will comply with all
applicable privacy laws. Further privacy considerations are discussed
in Exhibit C.
16. MUTUAL PERFORMANCE STANDARDS
Both CarsDirect and Autoweb will provide an acceptable 24x7 technical
support plan with minimum bandwidth, and performance standards to be
mutually agreed upon.
17. NOTICES
Any notices to be given hereunder shall be given in writing via
facsimile or by registered or certified mail, postage prepaid with
return receipt requested. Mailed notices shall be addressed at the
addresses appearing below, but each Party may change its address by
written notice to the other Party in accordance with this Paragraph.
Notices shall be deemed effective as of actual receipt.
To Xxxxxxx.xxx: Xxxxxxx.xxx, Inc.
0000 Xxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
With a copy to: General Counsel
To XxxxXxxxxx.xxx: XxxxXxxxxx.xxx, Inc.
00000 Xxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
With a copy to: General Counsel
18. NO WAIVER OF RIGHTS
All waivers hereunder must be made in writing. Failure by either Party
hereto at any time to require the other Party's performance of any
obligation under this Agreement shall not affect the right subsequently
to require performance of that obligation. The waiver, delay or failure
of either Party to exercise any right provided for herein or any remedy
for any default or breach of this Agreement shall not be deemed a
waiver of any other or subsequent right or remedy hereunder.
19. REPRESENTATIONS AND WARRANTIES
19.1 General. Each Party represents and warrants to the other Party
-------
that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts
required of it hereunder; (ii) the execution of this Agreement
by such Party, and the performance by such Party of its
obligations and duties hereunder, do not and shall not violate
any agreement to which such Party is a Party or by which it is
otherwise bound; (iii) when executed and delivered this
Agreement is enforceable against such Party in accordance with
its terms; and (iv) such Party acknowledges that the other
Party
10
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
makes no representations, warranties or agreements,
related to the subject matter hereof that are not expressly
provided for in this Agreement.
19.2 Intellectual Property Rights. Each Party further represents
--------------------------
and warrants that to the best of its knowledge, it owns, or
has the right to use under valid and enforceable agreements,
all Intellectual Property Rights reasonably necessary and
related to the operation of its respective Site(s). The
operation of each Party's respective Site(s) as presently
conducted or proposed to be conducted does not, to the
Parties' knowledge, infringe or violate any material
Intellectual Property Rights of any other person. Each Party
represents that other than Trilogy Software, Inc., et al. v.
XxxxXxxxxx.xxx, Inc., xx.xx. pending in the United States
District Court for the Western District of Texas, it has not
received any charge, complaint, claim, demand or notice
alleging any such infringement or violation. To each Party's
best knowledge, no other Person has any right to or interest
in any inventions, improvement, discoveries or other
confidential information used by such Party that relate to the
operation of that Party's Site(s), except for licenses of
technologies.
19.3 Geographic Adjustments. Each Party shall notify the other
--------------------
Party of any enforcement action, administrative order, inquiry
or examination against it by any governmental authority
relative to its services performed under this Agreement.
19.4 Performance. Each Party represents and warrants that the
-----------
services it may provide under this Agreement shall be
performed in a professional manner and will conform in all
material respects to the standards set forth in this
Agreement.
19.5 WARRANTY DISCLAIMERS. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT, THE PARTIES' RESPECTIVE SITE(S), SERVICES, PAGES,
AND THE CO-BRANDED SITE ARE PROVIDED "AS IS" AND THE
INFORMATION CONTAINED THEREIN IS NOT WARRANTED TO BE ERROR
FREE. EACH PARTY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR
COURSE OF PERFORMANCE WITH RESPECT TO THE PARTIES SITE(S),
SERVICES, PAGES AND THE CO-BRANDEDSITE.
19.6 LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED, UNDER
NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE
AGREEMENT, THE SALE OF SERVICES, THE USE OR INABILITY TO USE
ANY SERVICE, SITES, THE JUMP PAGES, OR ARISING FROM ANY OTHER
PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS
OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY
SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY
DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION HEREIN. EXCEPT AS PROVIDED HEREIN,
(I) LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO
DIRECT,
11
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
OBJECTIVELY MEASURABLE DAMAGES, AND EXCEPT WITH
RESPECT TO SECTION EIGHTEEN HEREIN (II) THE MAXIMUM LIABILITY
OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN
CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED ONE MILLION
DOLLARS ($1,000,000).
19.7 [ ** ] Portal Restriction. Autoweb represents to CarsDirect
-------------------------
that if CarsDirect develops the Co-Branded Site in a manner
that complies with [ ** ] style guide requirements provided to
Autoweb and shared with CarsDirect as of the Effective Date,
Autoweb shall present the Direct Buying Channel to users that
access the Autoweb Site from all [ ** ] website properties,
hyperlinks or other mechanisms ("[ ** ] Properties") designed
to transfer users from [ ** ] Properties to the Autoweb Site
for the purpose of accessing and utilizing the services that
Autoweb features or promotes on [ ** ] Properties.
20. INDEMNIFICATION
20.1 Indemnity. Each Party shall defend, indemnify, save and hold
---------
harmless the other Party and the officers, directors, agents,
affiliates, distributors, franchisees and employees of the
other Party from any and all third Party claims, demands,
liabilities, costs of expenses, including reasonable
attorneys' fees ("Liabilities"), resulting from (i) the
indemnifying Party's material breach of any duty,
representation, or warranty under this Agreement or (ii) the
failure by either Party to possess or maintain any material
approval, consent, license, permit, certificate or other right
and permission now or hereafter required to provide its
services to consumers under this Agreement.
20.2 Claims. If a Party entitled to indemnification hereunder (the
------
"Indemnified Party") becomes aware of any matter it believes
is indemnifiable hereunder involving any claim, action, suit,
investigation, arbitration or other proceeding against the
Indemnified Party by any third Party (each an "Action"); the
Indemnified Party shall give the other Party (the
"Indemnifying Party") prompt written notice of such Action.
Such notice shall (i) provide the basis on which
indemnification is being asserted and (ii) be accompanied by
copies of all relevant pleadings, demands, and other papers
related to the Action and in the possession of the Indemnified
Party. The Indemnifying Party shall have a period of ten (10)
days after delivery of such notice to respond. If the
Indemnifying Party elects to defend the Action or does not
respond within the requisite ten (10) day period, the
Indemnifying Party shall be obligated to defend the Action, at
its own expense, and by counsel reasonably satisfactory to the
Indemnified Party. The Indemnified Party shall cooperate, at
the expense of the Indemnifying Party, with the Indemnifying
Party and its counsel in the defense and the Indemnified Party
shall have the right to participate fully, at its own expense,
in the defense of such Action. If the Indemnifying Party
responds within the required ten (10) day period and elects
not to defend such Action, the Indemnified Party shall be
free, without prejudice to any of the Indemnified Party's
rights hereunder, to compromise or defend (and control the
defense of) such Action at the Indemnifying Party's expense.
In such case, the Indemnifying Party shall cooperate, at its
own expense, with the Indemnified Party and its counsel in the
defense against such Action and the Indemnifying Party shall
have the right to participate fully, at its own expense, in
the defense of such Action. Any compromise or settlement of an
Action shall require the prior written consent of both Parties
hereunder, such consent not to be unreasonably withheld or
delayed.
21. ASSIGNMENT
12
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
Neither Party shall assign or attempt to assign any of its rights or
obligations hereunder without the prior written consent of the other
Party, which shall not be unreasonably withheld. Without such consent,
any attempted assignment will be void.
22. AMENDMENT AND MODIFICATION
No amendment or modification of this Agreement shall be binding unless
executed in writing by both Parties.
23. SURVIVAL
Any terms of this Agreement, which by their nature extend beyond its
termination, shall remain in full force and effect until fulfilled and
apply to permitted successors and assignees.
24. SEVERABILITY
If any paragraph, sentence, clause, word or combination thereof in this
Agreement is judicially or administratively interpreted or construed as
being in violation of any such provision of any jurisdiction, such
paragraph, sentence, word, clause or combination thereof shall be
inoperative in each such jurisdiction and the remainder of this
Agreement shall remain binding upon the Parties hereto in each such
jurisdiction and the Agreement as a whole shall be unaffected
elsewhere.
25. HEADINGS FOR CONVENIENCE
Paragraph headings herein are for the convenience of the Parties only,
and are not be given any substantive meaning in the interpretation of
this Agreement.
26. LAW TO GOVERN
The validity, construction and enforceability of this Agreement shall
be governed in all respects by the internal laws of the State of
California and the United States of America. If either Party institutes
any lawsuit to enforce its rights hereunder, the prevailing Party in
any such suit, as determined by the court, shall be entitled to recover
from the other its costs, including a reasonable attorney's fee and the
costs of any prevailing appeals therefrom.
27. DISPUTE RESOLUTION
Any dispute, controversy, claim or disagreement between the parties
hereto arising from, relating to or in connection herewith, or the
relationships of the Parties, excluding any dispute, controversy,
claim, disagreement or document related to the ownership or right to
use any Intellectual Property Rights, but including questions regarding
the interpretation, meaning or performance of this Agreement and
including non-Intellectual Property Rights claims based on contract,
tort, common law, equity statute, regulation, order or otherwise
("Dispute") shall be resolved in accord with Exhibit E.
28. TRADEMARKS
28.1 Trademark License. Each Party shall be entitled to use the
------------------
trade names, trademarks and service marks of the other Party
for which the other Party holds all rights necessary for
13
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
use in connection with this Agreement (the "Marks"); provided
that a Party: (i) shall not create a unitary composite xxxx
involving a Xxxx of the other Party without the prior written
approval of such other Party; or (ii) shall display symbols
and notices clearly and sufficiently indicating the trademark
status and ownership of the other Party's Marks in accordance
with applicable trademark law and practice.
28.2 Ownership of Trademarks. Each Party acknowledges the ownership
-----------------------
right of the other Party in the Marks of such other Party and
agrees that all use of the other Party's Marks shall inure to
the benefit, and be on behalf, of the other Party. Each Party
acknowledges that is utilization of the other Party's Marks
shall not create in it, nor shall it represent it has, any
right, title, or interest in or to such Marks other than the
licenses expressly granted herein. Each Party agrees not to do
anything contesting or impairing the trademark rights of the
other Party.
28.3 Quality Standards. Each Party agrees that the nature and
----------------
quality of its products and services supplied in connection
with the other Party's Marks shall conform to quality
standards set by the other Party. Each Party agrees to supply
the other Party, upon request, with a reasonable number of
samples of any Materials publicly disseminated by such Party
which utilize the other Party's Marks. Each Party shall comply
with all applicable laws, regulations, and customs and obtain
any required government approvals pertaining to use of the
other Party's marks.
28.4 Infringement Proceedings. Each Party agrees to promptly notify
------------------------
the other Party of any unauthorized use of the other Party's
Marks of which it has actual knowledge. Each Party shall have
the sole right and discretion to bring proceedings alleging
infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide
the other Party with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
29. PROVISION OF PERSONNEL AND MATERIALS
There are no third Party beneficiaries of this Agreement. Each Party
shall be financially responsible for the personnel, equipment and
materials needed to perform its obligations hereunder.
30. PUBLICITY
The Parties will jointly prepare and issue mutually agreed upon press
releases concerning their relationship, the existence of this Agreement
and the terms hereof. Otherwise, no public statements concerning the
existence or terms of this Agreement shall be made or released by a
party to any medium except with the prior approval of the other party
or as required by law.
31. FORCE MAJEURE
Except as otherwise provided herein, each Party shall be excused for
any defaults or delays in the performance of its obligations hereunder
if and to the extent such default or delay is caused, directly or
indirectly, by fire, flood, earthquake, elements of nature or acts of
God, acts of war, terrorism, riots, civil disorders, rebellions or
revolutions in the United States, strikes, lockouts, or labor
difficulties, or any other act clearly beyond the reasonable control of
such Party. In such event, the affected Party will be excused from any
further performance or observance of the
14
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
obligation(s) so affected for as long as such event continues; provi-
ded that such Party gives the other Party prompt notice of such
force majeure event and of the anticipated delay, and the affected
Party is diligent in attempting to remove or cure such cause and to
mitigate the delay. Performance shall be excused only for the duration
of the force majeure event.
32. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
33. SCOPE
This Agreement is intended to apply only to the United States of
America and shall not apply in or to any foreign jurisdictions or
countries.
34. WEBSITE CONTROL
The Parties shall bear the risks and liabilities associated with errors
and omissions arising from their respective websites.
35. ENTIRE AGREEMENT
15
CONFIDENTIAL
AMENDED AND RESTATED STRATGIC CO-MARKETING AGREEMENT
This Agreement, including each Exhibit attached hereto, constitutes the
complete and exclusive agreement between the Parties and supersedes all
prior representations, understanding, and communications, oral and
written, between the Parties relating to the subject matter thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXXXX.XXX, INC. XXXXXXX.XXX, INC.
By: /s/ XXXXXX XXXXXX By: /s/ XXXXXX XXXXX
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Title: Chief Executive Officer Title: Chief Financial Officer
Date: June 30, 2000 Date: June 30, 2000
16
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
EXHIBIT A
DEFINITIONS
The following definitions shall apply to this Agreement:
1. "Action" is defined in section 20.2.
2. "Affiliate(s)" means any Person that, directly or indirectly, through one
or more intermediaries, (a) owns or controls another Person, (b) is owned
or controlled by another Person, or (c) is under common control or
ownership with another Person. As used herein, "control" means the power to
direct the management of affairs of a Person, and "ownership" means the
direct or indirect beneficial ownership of more than 50% of the equity
securities of a Person, or in the case of a Person that is not a
corporation, more than 50% of the voting and/or equity interest.
3. "Alternative Buying Channel" is defined in Section 1.2.
4. "Area" is defined in Section 2.4.
5. "Automobile" means any new motor designed for use on public roadways,
including but not limited to standard passenger cars, sport utility s,
vans and minivans and light trucks.
6. "Automobile Purchase" means (i) a purchase or lease of an Automobile by
an Automobile Purchaser; (ii) for which CarsDirect has received and
reported as revenue the purchase or lease price therefrom. Provided
further, an Automobile Purchase shall be deemed to be consummated upon
delivery of an Automobile to the Automobile Purchaser who is purchasing
or leasing such Automobile and the confirmation of such delivery (and
acceptance thereof) by CarsDirect in accordance with its standard
practices.
7. "Automobile Purchaser" means a Lead that completes an Automobile Purchase
with CarsDirect
8. "Automotive Buying Channel" is defined in Section 1.3.
9. "Autos Site" means the website owned by CarsDirect located at
xxxx://xxx.xxxxx.xxx.
--------------------
10. "Autoweb Competitor" is defined in Section1.1.
11. "Autoweb Configurator" means the data, tools and logic designed and
produced by Autoweb and its division, Automotive Information Center,
which allows a consumer to dynamically and correctly specify all options
and packages for a specific (year, make, model, trim). Such tool may
include pricing (MSRP, Invoice and other) associated with specific option
and package selections.
12. "Autoweb Site" means the consumer automotive Internet site located at
xxxx://xxx.xxxxxxx.xxx (including any successor or co-branded versions of
----------------------
xxxx://xxx.xxxxxxx.xxx, subject to Section 1.3).
----------------------
13. "Buying Method" defined in Section 1.3.
14. "Buy Section" means xxxx://xxx.xxxxxxx.xxx/xxx.xxx or a successor home to
------------------------------
the Autoweb Buying Channels.
17
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
15. "Banners" is defined on Exhibit B.
16. "CarsDirect Configurator" means the data, tools and logic designed and
produced by CarsDirect which allows a consumer to dynamically and
correctly specify all options and packages for a specific (year, make,
model, trim). Such tool may include pricing (MSRP, Invoice and
CarsDirect) associated with specific option and package selections.
17. "CarsDirect Purchase Request" means (i) a request to purchase a specified
Automobile submitted at the Co-Branded Site by a Direct Consumer; (ii)
that is consistent with CarsDirect's offering in the applicable geography
(iii) for which all mandatory fields have been completed, including but
not limited to, name, address, phone number and valid e-mail address;
(iv) for which CarsDirect has not received within the previous thirty
(30) day period, a request from a person identified by the same name
and/or e-mail address; and (v) which is accompanied by the required
purchase request deposit, if any.
18. "CarsDirect Referral" is a Purchase Request which has been forwarded to
CarsDirect.
19. "CarsDirect Site" means the consumer automotive Internet buying service
site located as xxx.xxxxxxxxxx.xxx.
------------------
20. "Change of Control" means the transfer of Control from the Person or
Persons who hold such Control on the Effective Date.
21. "Confidential Information" is defined in Section 14.1.
22. "Control" means possessing, directly or indirectly, the power to direct
or cause the direction of the management and policies of any entity,
whether through ownership of voting securities, by contract or otherwise.
For purposes of the preceding sentence, "ownership" means the direct or
indirect beneficial ownership of more than 50% of the equity securities
of a Person, or in the case of a Person that is not a corporation, more
than 50% of the voting and/or equity interest.
23. "Co-Branded Site" means a version of the CarsDirect Site that is branded
with (i) certain CarsDirect logos and trademarks and (ii) certain agreed
upon Autoweb logos and trademarks within an agreed upon Autoweb frameset
which CarsDirect shall develop by [ ** ] and which shall comply with
[ ** ] Portal Restrictions. The Co-Branded Site shall consist either of a
--------------------------
set of web pages that are separate and distinct from those that otherwise
constitute the remainder of the CarsDirect Site or, at the election of
CarsDirect, shall be a set of web pages that are dynamically created for
presentation to consumers visiting to the Co-Branded Site in a manner
that is consistent with (a) this definition, and (b) the other provisions
of this Agreement that describe the content of the web pages that are to
constitute the Co-Branded Site.
24. "Dark Area(s)" is defined in Section 2.4.
25. "Direct Buying Channel" defined in Section 1.3. Describes an Automotive
Buying Channel or, when another Person other than Autoweb is indicated, a
similar Buying Method on that Person's website not specific to placement.
26. "Direct Consumer" is defined in Section 2.2.
18
CONFIDENTIAL
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
27. "Direct Buying Channel Placement" shall mean the prominently displayed
fixed placement pages on the Autoweb Site that shall offer consumers on
the Autoweb Site the ability to purchase an Automobile through the Direct
Buying Channel. The Parties shall collaborate on the design, layout and
posting of the Direct Buying Channel Placement.
28. "Disclaimed Damages" is defined in Section 19.6.
29. "Dispute" has the meaning given to it in Section 27.
30. "Indemnified Party" is defined in Section 20.2.
31. "Indemnifying Party" is defined in Section 20.2.
32. "Initial Term" is defined in Section 13.1.
33. "Intellectual Property Rights" means any patents, inventions, invention
disclosures, Marks (as defined hereinafter), material trade secrets, know-
how, formulae and processes, software programs (except off-the-shelf
commercial programs licensed from third Parties), proprietary data and
databases, copyrights and all other similar items of intellectual
property, whether registered or unregistered, including any rights
created by use thereof. "Marks" shall mean all right, title and interest
in and to any United States or foreign trademarks, service marks and
trade names, including any registration or application for registration
of any trademarks and service marks in the United States Patent and
Trademark Office or the equivalent thereof in any state of the United
States or in any foreign country, as well as any unregistered marks, and
any trade dress (including logos, designs, company names, business names,
fictitious names and other business identifiers) in the United States or
any foreign country.
34. "Lead" is a Direct Consumer who submits a CarsDirect Purchase Request via
the Co-Branded Site.
35. "Lead Conversion" shall mean the conversion of a Lead to an Automobile
Purchaser.
36. "Lead Parameters" is defined in Section 2.3.
37. "Lead Fee" shall be as set forth on Exhibit B.
38. "Lead Hurdle" shall be as set forth on Exhibit B.
39. "Liabilities" is defined in Section 20.1.
40. "Marks" is defined in Section 28.1.
41. "Person" means any natural person, corporation, partnership, limited liabi-
lity company or other entity.
42. "Purchase Request" means the process and information in which a consumer
participating in the Referral Buying Channel provides basic information
on the features and attributes of the Automobile he desires, has the
opportunity to research further information on the desired Automobile,
and provides his personal information (including Automobile make,
Automobile model, Automobile trim, Automobile exterior and exterior
color, Automobile engine, Automobile options, name, address, email
address, phone number, purchase method information, expected Automobile
Purchase time, trade in status, and any other information generally
collected by Autoweb from Visitors to the
19
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC CO-MARKETING AGREEMENT
Autoweb Site who submit Purchase Requests) for a third party (such as a
dealer, manufacturer or other) to contact the consumer to negotiate the
consumer's Automobile Purchase.
43. "Referral Buying Channel" is defined is Section 1.3. Describes an
Automotive Buying Channel or, when another Person other than Autoweb is
indicated, a similar buying method on that Person's website not specific
to placement.
44. "Referral Period" is defined in Section 2.1.
45. "Renewal Term" is defined in Section 13.1.
46. "Rollout Schedule" is defined in Section 2.4.
47. "Term" is defined in Section 13.1.
48. "Third-Party Engagement" is defined in Section 1.2.
49. "Tracked Links" means a link from the CarsDirect Site to the Autoweb Site.
50. "Undesirable Direct Consumers" is defined in Section 2.4.
20
CONFIDENTIAL
