THIS AGREEMENT made effective the 11th day of October, 2000.
BETWEEN:
XXXXXXXXXXXXX.XXX, INC. a corporation duly incorporated with its head
offices located in Xxxxxxx, Xxxxxxx, Xxxxxx (Hereinafter referred to as
"TheMotorpages")
- and -
XXXXXXX XXXX LEASING, a corporation duly incorporated pursuant to the
laws of the Dominion of Canada (Hereinafter referred to as "XXXXXXX
XXXX LEASING")
SALES/SERVICE AGREEMENT
-----------------------
WHEREAS:
A. XxxXxxxxxxxxx.xxx has developed proprietary Internet technologies. The
Internet site xxx.xxxxxxxxxxxxx.xxx is a Business to Business Internet
automotive portal designed to enhance and promote the sale of "off
lease" vehicles between remarketer and an exclusive automotive Dealer
Network. The venue is XxxXxxxxxxxxx.xxx's Virtual Private Dealer
Network.
X. XXXXXXX XXXX LEASING is an auto fleet remarketing company and has
developed auto resale marketing programs, post sale services, systems,
and technologies.
C. This Agreement contains the provision of computer-mediated information
services for XXXXXXX XXXX LEASING's inventories to feature their
inventories on the Internet site xxx.xxxxxxxxxxxxx.xxx for resale
through the Virtual Private Dealer Network and On-line Tendering
System.
D. This Agreement sets out the terms by which TheMotorpages and XXXXXXX
XXXX LEASING will work co-operatively in the promotion and sale of
vehicles supplied by XXXXXXX XXXX LEASING through the Online Tendering
System contained in XxxXxxxxxxxxx.xxx's Virtual Private Dealer Network.
E. The parties agree to share and complement proprietary information
technologies whereby TheMotorpages shall customize its Internet
technology and develop the implementation of an Internet Marketing
Strategy for the XXXXXXX XXXX LEASING vehicle inventory.
F. The Parties wish to enter into a strategic alliance whereby they commit
to collaborate to providing automotive industry dealerships with
information on the availability of XXXXXXX XXXX LEASING vehicles to
facilitate the auto purchase process through the utilization of the
On-line Tendering System.
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NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of these
provisions and the representations and agreements herein contained it is hereby
mutually agreed as follows:
1. Internet Services
-----------------
TheMotorpages shall provide to XXXXXXX XXXX LEASING full access to the
Online Tendering System technology as contained in the Virtual Private
Dealer Network of the web site xxx.xxxxxxxxxxxxx.xxx. XXXXXXX XXXX
LEASING shall be entitled to up-load its full remarketing automotive
inventory with no limitation as to quantity. Each inventory vehicle
shall be described by the provision of a digitally generated color
image, conditioning report and full vehicle particulars as to model,
year, odometer reading, specifications, options, minimum acceptable
tender price (reserve bid) and all other relevant information to allow
a prospective purchaser to make an informed decision with respect to
the tender amount.
2. Term
----
The term of this agreement shall be for two years from date set out
above and shall be renewed by both parties at any time during this
agreement. If either such party wishes to cancel this agreement, the
party must give written notice of cancellation within 90 days notice of
such date.
3. Coding of Information
---------------------
XXXXXXX XXXX LEASING shall be responsible for the accuracy and
completeness of the information and photos up-loaded to the Online
Tendering System for all vehicles and shall provide all required
personnel to complete the task of up-loading such vehicle information
and photos. In the event that XXXXXXX XXXX LEASING requires the
services of TheMotorpages to assist with the process of up-loading
vehicle information to the Online Tendering System, then XXXXXXX XXXX
LEASING agrees to compensate The Xxxxxxxxxx.xxx in accordance with its
standard rate.
4. Tendering Process - Timing
--------------------------
TheMotorpages shall conduct a tendering process for XXXXXXX XXXX
LEASING auto inventory on every Friday of each week unless XXXXXXX XXXX
LEASING provides 48 hour notice that any such tender process shall not
include XXXXXXX XXXX LEASING inventory. XXXXXXX XXXX LEASING shall have
the option of conducting additional tenders upon providing 48 hours
notification to TheMotorpages.
5. Fees
----
XXXXXXX XXXX LEASING shall pay to TheMotorpages a transaction fee of
$150 ($75.00 buyers fee/$75.00 sellers fee) for every vehicle that
receives a tender price offer equal to or in excess of the minimum
acceptable tender price (reserve bid) as set out for any particular
vehicle. XXXXXXX XXXX LEASING shall be responsible to finalize the sale
to the successful purchaser, deliver the vehicle to the successful
purchaser, and to collect the $75 buyers fee from the successful
purchaser.
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6. Payment of Fees
---------------
XXXXXXX XXXX LEASING shall submit payment (buyer and sellers fees) for
any particular tendering process within fifteen days of closing of
tender.
7. Confidentiality
---------------
It is understood that in the provision of these services TheMotorpages
may disclose confidential and proprietary information to XXXXXXX XXXX
LEASING and XXXXXXX XXXX LEASING may disclose confidential information
to TheMotorpages as per the following:
a. Confidential Information and Confidential Materials are
proffered to each of the parties as such. All Confidential
Information and Confidential Materials disclosed by the
parties will thus be received and held in confidence by the
Recipient.
b. TheMotorpages will furnish to XXXXXXX XXXX LEASING documentary
information and tangible items relating to the development of
the Online Tendering System to the extent necessary to permit
XXXXXXX XXXX LEASING to determine the applicability of the
Online Tendering system to XXXXXXX XXXX LEASING's operations,
XXXXXXX XXXX LEASING's interest in negotiating this Agreement
and XXXXXXX XXXX LEASING's special Online Tendering system
development requirements.
x. XXXXXXX LANE LEASING will provide TheMotorpages with
information relating to its operations individual Online
Tendering System requirements. TheMotorpages shall return any
such documentary information to XXXXXXX XXXX LEASING.
d. The parties hereto will restrict disclosure of Confidential
Information and Confidential Materials to the minimum number
of persons required to enable each of them to further appraise
its value, including relevant members of their respective
staff. However, each person to whom disclosure is made shall,
before the disclosure takes place, enter into a
confidentiality agreement.
e. The parties agree that the confidentiality and use provisions
of this Agreement shall not apply to any information which
appears in printed publications in integrated form or which
otherwise is or becomes generally known in the industry; any
information which the Parties can show by written records was
in the Parties' possession prior to the disclosure; or any
information which comes into the Parties' possession without
covenants of secrecy from another party who is under no
obligation to maintain the confidentiality of the information.
f. The burden of proving these exceptions to the confidentiality
and use provisions of this Agreement resides with the
recipient of such information.
g. The parties shall return all Confidential Materials that it
has received from the other Party such as summaries, records,
descriptions, modifications, drawings and adaptations that the
Parties have made from the Confidential Materials and
Information provided by the other.
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8. Severability
------------
The invalidity of all or any part of any section of this Agreement
shall not render invalid the remainder of this Agreement or section and
any such provision of this Agreement that is so broad as to be
unenforceable shall be interpreted to be only so broad as is
enforceable.
9. Headings
--------
The headings of sections, subsections and paragraphs of this Agreement
are inserted for convenience only and shall not control or effect the
meaning of construction of any of its provisions.
10. Expenses, Etc.
--------------
Except as otherwise provided for herein, whether or not the
transactions contemplated by this Agreement are consummated, each party
hereto shall pay his or its own expenses and the fees and expenses of
their respective counsel, accountants and other experts.
11. Waiver
------
No action taken pursuant to this Agreement, including any investigation
by or on behalf of any party, shall be deemed to constitute a waiver by
the party taking such action or compliance with any representation,
warranty, covenant or agreement contained herein, and the waiver by any
party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach.
12. Binding Effect, Benefit
-----------------------
This Agreement shall enure to the benefit of and shall be binding upon
the parties hereto and their respective heirs, personal
representatives, successors and assigns.
13. Notices
-------
All notices, requests, demands and other communications which are
required to be or may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person or
transmitted by telex or other telecommunication facility or on receipt
after dispatch by certified or registered first class mail, postage
prepaid, return receipt requested, to the party to whom the same is so
given or made as follows:
if to XXXXXXXXXXXXX.XXX to:
00 Xxxxxx Xx.
Xxxxxxx, Xxxxxxx
X0X 0X0
Tel: 000 000 0000
if to XXXXXXX XXXX LEASING to:
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14. Entire Agreement, Amendment
---------------------------
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, oral and written, between the
parties hereto with respect to the subject matter hereof and may not be
amended, modified or terminated unless in a written instrument executed
by the party or parties sought to be bound.
15. Counterparts
------------
This Agreement may be executed in any number of counterparts, each of
which when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
16. Gender, Singular and Plural
---------------------------
Any reference in this Agreement in the masculine gender shall include
the feminine and neuter genders, and vice versa, as appropriate and any
reference in this Agreement in the singular shall mean the plural, and
vice versa, as appropriate.
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17. Third Parties
-------------
Nothing in this Agreement, whether expressed or implied, is intended to
confer any rights or remedies on any person other than the parties to
this Agreement, nor is anything in this Agreement intended to relive or
discharge the obligation or liability of any third party, nor shall any
provision give any third party any right of subrogation or action
against any party to this Agreement.
18. Governing Law
-------------
This Agreement shall be construed as to both validity and performance
and enforced in accordance with and governed by the laws of the
Province of Ontario and both parties agree to attorn to the
jurisdiction of the Courts of Ontario in the event of any dispute.
19. Currency
--------
All currencies referred to in this Agreement are stated in the lawful
currency of Canada,.
20. Waiver of Breach
----------------
The waiver of any breach of any provision of this Agreement or failure
to enforce any provisions hereof shall not operate or be construed as a
waiver of any subsequent breach by any party.
21. Disputes
--------
In any litigation or disputes arising out of this Agreement they
prevailing party will be entitled to recover all reasonable costs and
attorney fees, including costs and fees on appeal.
22. Rights Cumulative
-----------------
The provisions of this Agreement shall not be construed as limiting any
rights or remedies that either party may otherwise have under the
applicable law.
23. Independent Counsel
-------------------
Each party acknowledges that it has retained independent counsel to
review the terms of this Agreement and to advise as to the legal effect
this effect will have upon the respective rights and obligations
arising hereunder.
24. Time of Essence
---------------
Time is of the Essence.
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25. Assignment Clause
-----------------
This Agreement may not be assigned without the written consent of the
TheMotorpages.
26. Force Majeure
-------------
Neither party hereto shall be responsible for the failure or delay in
performing any of its obligations due to causes beyond its control and
these causes shall include, but shall not be restricted to, fire,
storm, flood, earthquake, explosion, accident, acts of a public enemy,
war, rebellion, insurrection, sabotage, epidemic, labor disputes,
transportation embargoes, or acts of God, rules, regulations, orders or
directives of any national government or agency thereof, acts, rules,
regulations, orders or directives of any provincial or local government
or agency thereof, or the order of any court of competent jurisdiction.
27. Relationship of Parties
-----------------------
The parties to this Agreement are independent contractors, and nothing
herein shall be construed as creating or evidencing either a
partnership or an agency or any employment relationship between the
parties or giving one party the authority to contract for or bind the
other.
XxxXxxxxxxxxx.xxx reserves the right to disclose this relationship to
its shareholders and pre-existing Dealer Members.
IN WITNESS WHEREOF the parties hereto have hereunto executed this
Agreement by the hands of their duly authorized officers as of the day and year
first above written.
XXXXXXXXXXXXX.XXX
Per: /s/ signature Dated: October 4, 2000
--------------------------- -----------------------
XXXXXXX XXXX LEASING
Per: /s/ signature Dated: Oct 16 00
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