EXHIBIT 10.26
XXXXXXXX.XXX
INTERNET MARKETING AGREEMENT
A.I.N. CORPORATION A WHOLLY OWNED SUBSIDIARY OF AUTOBYTEL INC.
00000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000
Tel. 000-000-0000*Fax 000-000-0000
THIS AGREEMENT, dated _________________________ is entered into by A.I.N.
Corporation, a Delaware corporation ("AIN"), and _____________________________
("Dealer"). (Legal Name of Dealership)
PURPOSE OF AGREEMENT: This Agreement sets forth the terms and conditions of
Dealer's participation in the XxxXxxxx.xxx(R)Internet Marketing Program (herein
referred to as "Program") and the mutual obligation of Dealer and A.I.N. in
connection therewith.
1. OBLIGATIONS OF AIN: In consideration of Dealer's fulfilling all of the
obligations herein set forth, AIN agrees, for the term of this Agreement, to
include Dealer as a participating dealer in the Program. The Program may from
time-to-time be redefined and changed by AIN to afford Dealer the promotional,
training, advertising and other benefits of participation therein. AIN shall
provide a marketing program on the Internet to attract potential buyers and
shall forward information regarding the potential buyers identified for the
make(s) set forth below and in the territory (defined below) of the Dealer.
Additionally, AIN will:
a) Grant Dealer a non-exclusive license that will allow dealer access
to an automated consumer tracking and communications system.
b) Use reasonable efforts to forward consumer information to Dealer
within 60 minutes of receipt from consumer.
2. OWNERSHIP OF PROGRAM AND INTELLECTUAL PROPERTY: AIN warrants that it is the
lawful holder of the federally registered trademark CarSmart(R) and that it is
the owner and operator of the CarSmart(R) web site located at URL
xxx.xxxxxxxx.xxx. The Program services to be provided hereunder by AIN, together
with any modifications and/or improvements therein made by AIN or Dealer during
the term of this Agreement and all copies thereof, are proprietary to AIN and
title thereto remains in AIN. All applicable rights to patents, copyrights,
trademarks and trade secrets in the Program and in the name "CarSmart" and its
logos are and shall remain the sole property of AIN.
3. OBLIGATIONS OF DEALER: Dealer understands and agrees that the Program is
intended to identify for Internet consumers, ethical automobile dealers who are
ready, willing, and able to provide new vehicles at a fair price and without the
anxiety and hassle frequently associated with the process of acquiring a new
vehicle. Dealer agrees and warrants that all of Dealer's dealings hereunder will
be completely fair and in accordance with the highest ethical standards.
Additionally, Dealer agrees:
a) To provide a bonafide price quote to all CarSmart consumers via
telephone, fax or e-mail.
b) To provide such price quote within 6-8 business hours after
receiving request.
c) To extend to consumers, courteous, ethical service in connection
with the purchase of vehicles.
d) To price any vehicle included in the Program competitively with that
price which a knowledgeable and diligent buyer can generally obtain
for the same model, similarly equipped, from the Dealer or from
other dealers within the Dealer's marketing area.
e) To offer any dealer-installed optional equipment or service,
including extended service contracts, that the consumer wishes to
purchase with the automobile at a fair xxxx-up, so as not to exceed
Dealer's average selling price for that equipment or service.
f) That consumers may special-order models covered by the Program at
the same competitive price.
g) That all of the terms and conditions contained in Dealer information
transmitted to consumers shall remain in full force and effect and
be binding upon Dealer for a period of seven (7) days after its
transmittal (including transmittal by e-mail or facsimile), provided
the identified vehicle remains available for sale.
h) To offer consumers the better of dealer-advertised price and the
pre-arranged price set in the price quoted to or transmitted to
consumers.
DG# _________ Region Name: _________ 1
CarSmart rev. 2/13/02 VOID IF ALTERED
i) Not to interfere with the consumers' choice of financing
institution. The benefits to consumers afforded under the Program
shall not in any way be dependent upon financing the purchase or
lease through any particular financing institution. Dealer further
agrees not to solicit financing from any Credit Union member
utilizing the Program. Dealer acknowledges violation of this term
will cause immediate termination of this Agreement.
k) To appraise all trade-ins at, and to credit all trade-ins at, or
above, their ACTUAL CASH VALUE notwithstanding any discount being
afforded under the Program.
l) At its sole cost and expense, to provide the computer and other
office equipment necessary to use and receive the services to be
provided hereunder by AIN.
m) That it is an independent contractor and not an agent or employee of
AIN and that AIN does not have, nor shall it exercise, any right of
control as to the personnel, business methods or means employed by
the Dealer. Dealer at all times shall act in the capacity of an
independent contractor and shall be exclusively responsible for its
acts.
n) To have a minimum of one (1) CarSmart trained representative on
staff. Dealer agrees to send dealership representative off-site to a
CarSmart-conducted training seminar when conducted in Dealer's local
geographic area.
o) To meet all legal requirements of the city and county in which it
operates and to comply with all federal, state and local laws
regulating Dealer's business.
4. TERRITORY OF DEALER: Subject to the terms and conditions set forth in this
Agreement, AIN hereby grants to Dealer the exclusive (except in the State of
Texas), non-transferable right to use the services of the Program, within the
geographical area (zip code, county descriptions preferable), set forth in
Appendix "A" attached hereto and incorporated herein by this reference (the
"Territory"). In Texas, the Territory is deemed to be the area within the zip
code where Dealer is located and there is no Appendix A. AIN reserves the right
to redefine the Dealer's Territory upon 30 days written notice. Dealers in the
State of Texas, acknowledge and agree that no exclusive Territory is granted by
this Agreement.
5. INDEMNIFICATION: Dealer promises to indemnify and hold harmless AIN, its
subsidiaries, parent, affiliates and 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 Dealer's negligence or wrongful conduct, or arising
out of any third-party claim, including, but not limited to, any claim for
damages by any person or entity regarding the purchase, lease and/or finance of
a motor vehicle from Dealer or resulting from Dealer's utilization of AIN's
services, or from any other act done or omitted to be done by Dealer in
executing the terms of this Agreement. In the event AIN is served with
notification of action or suit against Dealer, AIN will promptly notify Dealer
of such claim.
6. Compensation to AIN: Dealer promises to pay AIN monetary fees for services
rendered as follows:
a) Dealer agrees to pay AIN: A $ ___________ Territory fee with
Dealer's execution of this Agreement.
b) As additional ongoing consideration, Dealer agrees to pay AIN the
amount of___________ ________________________________ Dollars
($______________) as a total monthly Services Fee, which is due and
payable in advance on the first day of every calendar month. The
Services Fees for first and last month of the term shall be prorated
and charged to Dealer at a daily fee rate equivalent to the total
monthly service fee divided by the number of calendar days for the
applicable month, multiplied by the number of calendar days services
were rendered in the applicable month. The first and last months'
total fee is due and payable concurrently with the execution of this
Agreement. All fees paid to AIN pursuant to this Agreement are
non-refundable, regardless of circumstances.
For the purpose of this section 6, the term "services" shall mean the forwarding
of the Purchase Requests by AIN to Dealer. Services are deemed rendered at the
time a Purchase Request is forwarded by AIN to Dealer, and is not contingent
upon an actual sale being consummated. AIN, in its sole discretion, may change
the amount of the fees charged to Dealer including, but not limited to, the
right to change the structure, method and/or basis of the fees at any time
during the term of this Agreement. Any of the foregoing changes shall be
effective upon thirty (30) days written notice to Dealer.
7. LATE PAYMENT: Payments received more than thirty (30) days following the
invoice date shall be subject to a late fee of $25.00 and shall incur interest
charges on the balance due at an annual percentage rate of eighteen (18.0%)
percent per annum. AIN reserves the right to suspend services for any payment
sixty (60) days or more past due until the account is brought current.
DG# _________ Region Name:_________ 2
CarSmart rev. 2/13/02 VOID IF ALTERED
]
Upon notification of any change in the amount of the fees charged to Dealer
including, but not limited to, a change in the structure, method and/or basis of
the fees, Dealer has the option to terminate this Agreement. In the event Dealer
chooses to terminate, Dealer must notify AIN, in writing within 10 days of
receipt of such notification. AIN shall not require an affirmative response from
Dealer in the event Dealer chooses to accept the new terms as outlined in such
notification.
8. TERM: This Agreement shall continue in full force and effect unless sooner
terminated according to the provisions of this Agreement.
9. TERMINATION:
A. AIN may terminate this Agreement:
1) Immediately for any breach of this Agreement by Dealer which is not
cured within ten (10) days after Dealer receives written notice of
the breach from AIN.
2) Immediately if any fees due AIN under this Agreement are unpaid and
outstanding more than (30) days after AIN makes a written request
for payment.
3) Immediately upon the Dealer's sale or transfer of all, or
substantially all, of its dealership assets and/or management and
control.
4) Immediately upon a finding of Dealer's violation of state or federal
law or conviction for such violation.
5) Immediately if an order for liquidation against Dealer is entered
into.
6) Upon thirty (30) days written notice to Dealer, for any reason or no
reason.
B. Dealer may terminate this Agreement:
1) Immediately, if an order for liquidation against AIN is entered and
not stayed in a bankruptcy proceeding;
2) Immediately, if AIN is guilty of willful misconduct in the
performance of its duties under this Agreement; or
3) Immediately for any breach of this Agreement by AIN which is not
cured within ten (10) days after Dealer provides written notice of
the breach to AIN; or
4) Upon thirty (30) days written notice to AIN, fir any reason or no
reason.
Under any of the circumstances above in this section 9, Dealer shall remain
responsible for all fees due and payable up through the effective date of the
termination. Notwithstanding anything to the contrary contained herein, in the
event that AIN terminates this Agreement as a result of Dealer's breach of any
provision of this Agreement, whether material or otherwise, Dealer shall forfeit
all fees previously paid, and such forfeiture shall not be in limitation of, but
shall be in addition to, any other remedy which may be available to AIN as the
result of such breach.
10. OBLIGATIONS UPON TERMINATION: Upon termination of this Agreement, regardless
of the circumstances, AIN shall have no further obligation to Dealer under this
Agreement and Dealer's participation in the Program shall cease. Dealer shall
remain liable to AIN for any and all unpaid obligations due hereunder until paid
in full.
11. ATTORNEYS FEES and COSTS: If any legal action is necessary to enforce the
terms of this Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs in addition to any damages and other relief
to which such party may be entitled.
12. GOVERNING LAW: This Agreement shall be governed by and interpreted under the
laws of the State of California.
13. NO IMPLIED WARRANTY. LIMITATION OF LIABILITY: AIN makes no warranty
regarding the performance of its services under this Agreement and Dealer
specifically waives all warranties, expressed or implied arising out of, or in
connection with, the services to be provided hereunder. In no event shall AIN be
liable for any loss of business profits, or any consequential, incidental,
punitive or similar damages, or for the claims of damages made by any third
party.
14. NO IMPLIED WAIVER: The failure by either party at any time to require
performance by the other party of any provisions of this Agreement shall not
affect the right to require such performance at any time thereafter.
DG# ________ Region Name: ________ 3
CarSmart rev. 2/13/02 VOID IF ALTERED
Neither shall the waiver by either party of a breach of any provision of this
Agreement be taken or held to be a waiver of the provision itself.
15. NOTICES: All notices, requests and consents given under this Agreement shall
be in writing and shall be delivered by hand, an express mail service from which
a delivery receipt may be obtained, by fax if delivery is confirmed or certified
mail to:
If to AIN:
A.I.N. CORPORATION
CarSmart(R) ONLINE NETWORK
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xx 00000-0000
If to Dealer:
(At the address shown on the attached Dealer Information Addendum)
16. ACCEPTANCE: This Agreement becomes valid and binding upon acceptance by AIN.
Upon acceptance, AIN shall mail a copy of the fully executed Agreement to
Dealer. Until executed by AIN, this Agreement shall not be binding on AIN and
shall have no force or effect.
17. REQUISITE AUTHORITY: Each party signing this Agreement hereby represents
that he/she is authorized on behalf of his/her respective corporation/entity to
enter into this Agreement, and that each corporation/entity is in good standing
under all applicable laws.
ENTIRE AGREEMENT: This Agreement contains the entire agreement between AIN and
the Dealer and no modification or supplement to the terms hereof shall be
binding unless in writing and signed by both parties.
AIN CORPORATION DEALER:
-------------------------------
By: By:
------------------------------------ -----------------------------------
(Signature)
Name:
---------------------------------
(Printed)
Title: Sr. VP Dealer & Customer Service Title:
-------------------------------- -------------------------------
(Printed)
DEALER INFORMATION ADDENDUM
ENTER INFORMATION IN EACH BOX CLEARLY AND COMPLETELY
List New Car Franchises
1)
----------------------------
--------------------------------
Dealer's Legal Name 2)
----------------------------
-------------------------------- 3)
DBA ----------------------------
-------------------------------- 4)
Address ----------------------------
5)
----------------------------
DG# __________ Region Name: _________ 4
CarSmart rev. 2/13/02 VOID IF ALTERED
---------------------------------------- 6)
City ----------------------------
---------------------------------------- 7)
State ----------------------------
---------------------------------------- 8)
Zip ----------------------------
DEALER E-MAIL ADDRESS:
( ) 1. @
------ -------------------------------- -------------- ----------
Telephone No.
2. @
( ) -------------- ----------
------ --------------------------------
Fax No.
HOURS OF OPERATION: DEALER WEB SITE:
Mon. - Fri. to xxxx://xxx.
----- ------- -----------------------
Sat. to
----- ------- CONTACT INFORMATION:
Sun. to CarSmart Rep:
----- ------- ----------------------
Dealership Slogan:
CarSmart Rep:
======================================== ----------------------
----------------------------------------
COMPUTER SYSTEM TYPE:
Accounts Payable Contact:
ADP/R&R/Other: -----------
--------------------------
[ ] CHECK IF PAYMENT IS ENCLOSED OR RECEIVED.
DEALER HAS VERIFIED ALL OF THE ABOVE FOR ACCURACY: _______________
DEALER INITIALS
THE FOLLOWING EMPLOYEE CLASSIFICATIONS ARE AUTHORIZED TO
EXECUTE DOCUMENTS ON BEHALF OF THE DEALER:
Dealer Owner UCSM Other:
------- -----
GM Fleet Manager ----------------------
------- -----
GSM Internet Manager
------- -----
NCSM Business Manager ----------------------
------- -----
Controller Service Manager
------- -----
F & I Manager
-------
Office Manager
-------
