THIS (the "Agreement") is made and
entered into as of the 10th of January, 2001 (the "Effective Date"), by and
between XxxxXxxxxXxxxxx.xxx Inc., an Arizona corporation, whose address is 00000
Xxxxx Xxxxxx Xxxx, Xxxxx 0, Xxxxxxxxxx, Xxxxxxx, 00000 ("ATC"); and American
Suzuki Motor Corporation, a California corporation, whose address is 0000 Xxxx
Xxxxxxxx Xxx, XX Xxx 0000, Xxxx Xxxxxxxxxx 00000 ("Suzuki")(each a "Party," and
together, the "Parties.")
WHEREAS, Suzuki repurchases or acts as agent for certain rental
vehicles bearing the Suzuki brand name, which are owned by American Suzuki Motor
Corporation or automobile rental corporations and remarketed by Suzuki
(hereinafter, such motor vehicles are called the "Suzuki Vehicles"); and
WHEREAS, Suzuki desires to obtain certain remarketing services and
desires to obtain assistance in administering programs involving the sale of the
Suzuki Vehicles to Enrolled Dealers (as defined herein); and
WHEREAS, Suzuki desires to execute those remarketing services through
use of electronic commerce technologies via Internet applications; and
WHEREAS, ATC wishes to develop, operate and host the ATC/Suzuki Website
(as defined herein) and provide remarketing services, technical, administrative
and marketing support to Suzuki; and
WHEREAS, Suzuki desires to retain the services, experience and
assistance of ATC, and ATC desires to assist Suzuki subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions.
For purposes of this Agreement, the following definitions shall apply:
a. "ATC/Suzuki Website" means the framework, structural and database
architecture and programming, as well as the interface format and design, which
results in display screens or "pages" which are perceptible by individuals, with
the aid of a machine or device, and also includes the underlying programming
code, computer programs and resources developed, operated and maintained for
Suzuki by ATC in accordance with the provisions of this Agreement, as reflected
in the document entitled "Suzuki Website Overview" prepared by ATC and provided
to Suzuki (a copy of which is attached to this Agreement as Exhibit A). The
ATC/Suzuki Website shall be used by Suzuki as the primary method of remarketing
of Suzuki Vehicles to the Enrolled Dealers.
b. "Content" refers to Suzuki's textual, graphic, audio-visual or other
materials, information or items which are displayed, inserted, publicly
performed, perceptible or otherwise available on the ATC/Suzuki Website
developed for Suzuki by ATC hereunder. Content also includes Suzuki's pricing
and inventory data not displayed or otherwise accessible to individuals on the
ATC/Suzuki Website.
c. "Documentation" refers to ATC's textual, graphic, audio-visual or
other materials, information or items, which describe how to implement and
operate, and the capabilities and functions of, the ATC/Suzuki Website.
d. "Domain Name" shall mean an Internet domain name mutually agreed
upon by Suzuki and ATC for the ATC/Suzuki Website, and registered by ATC, at
Suzuki's expense, on behalf of Suzuki.
e. "Enrolled Dealer" means a Suzuki franchised automobile dealer and
other parties as authorized by Suzuki to participate in the ATC/Suzuki Website.
f. "Software" refers to any computer programs, software and related
materials, including any Documentation relating thereto, independently developed
by ATC which are required or necessary, and which may be incidental or are
intended, to interact with or operate the ATC/Suzuki Website.
g. "System" refers to the hardware and software and other devices and
operating programs on which the ATC/Suzuki Website will operate and make Content
accessible to permitted individuals and devices and which is interconnected to
the publicly available network of networks referred to as the "Internet" and
that portion of the Internet known as the "World Wide Web."
i. "Third Party Software" refers to any computer programs, software
and related materials, including any documentation relating thereto, developed
by parties other than ATC and licensed to ATC which are required or necessary,
and which may be incidental or are intended, to interact with or operate the
ATC/Suzuki Website.
Other terms used in this Agreement are defined in the context in which
they are used and have the meanings there stated.
2. TERM OF AGREEMENT
The term of this Agreement shall commence effective as of the tenth
(10th) day of January, 2001 and shall be for a period of twelve (12) months;
provided that Suzuki may, at its option, terminate the term of this Agreement
upon one hundred and twenty (120) days prior written notice to ATC and, if
Suzuki gives such termination notice on or prior to July 10, 2001, Suzuki shall
pay the sum of $ * to ATC as a termination fee upon termination of the term
of this Agreement. This agreement will automatically renew for an additional 12
month period if ATC meets or exceeds certain performance criteria as mutually
agreed upon by the parties. Such performance criteria must be added to this
contract prior to March 31, 2001 for this provision to become effective.
Otherwise the parties hereto may elect to renew this Agreement on such terms and
conditions as may be mutually agreed upon. All renewals must be agreed upon in
writing and signed by all parties hereto.
3. SERVICES TO BE PROVIDED BY ATC.
a. DEVELOPMENT AND HOSTING OF THE ATC/SUZUKI WEBSITE.
i. ATC shall use commercially reasonable efforts to design and complete
the ATC/Suzuki Website on or about March 1, 2001, ATC will provide Suzuki with
necessary Integration Services (as defined below), in order to make the Content
compatible with the technical specifications for the ATC/Suzuki Website, as set
forth in Exhibit A. For purposes of this Agreement, "Integration Services" shall
mean the integration of the Content into the ATC/Suzuki Website. The user
interface and navigational structure of the ATC/Suzuki Website will follow
mutually agreed upon standards for the entry point to the ATC/Suzuki Website, as
set forth in Exhibit A. ATC also agrees to provide Suzuki and its staff with
reasonable training and assistance, in order to permit Suzuki to update Content
on the ATC/Suzuki Website, throughout the Term.
ii. ATC shall provide to Suzuki in website architecture custom website
features including but not limited to home page(s), vehicle search capability,
vehicle inventories with condition reports, digital photos, vehicle purchase
capability, purchase confirmation, transportation alternatives and links,
policies and procedures, community pages, calendars, administration pages,
market reports, and seamless
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* Confidential information omitted and filed separately with the Securities and
Exchange Commission.
Internet links to any and all parties and/or additional websites (such as
auctions, used car guide publications) deemed necessary by Suzuki.
iii. ATC acknowledges that Content which may be integrated into the
ATC/Suzuki Website includes Suzuki's brands, screens ("pages"), images and other
graphic displays and may also include uniform resource locators (so called
"URLs" or hypertext "links") to Content within the ATC/Suzuki Website and/or to
other web sites, web pages and/or materials which are external to and not part
of the ATC/Suzuki Website, as agreed upon by the Parties. Subject to the
technical and capacity constraints inherent in the System and the Specifications
and any other limitations and restrictions set forth in this Agreement, ATC will
use all reasonable commercial efforts to ensure adequate System resources for
the ATC/Suzuki Website.
iv. ATC shall customize and co-brand the ATC/Suzuki Website for access
through the System using ATC's design guideline templates and co-branding
requirements, including by displaying on each page of the ATC/Suzuki Website
framing (e.g., headers and footers) of size and type determined by ATC, which
contain branding for ATC and Suzuki as determined by ATC. ATC shall make any
changes to the customization and/or co-branding of the ATC/Suzuki Website as
reasonably requested by Suzuki during the Term.
v. If Suzuki requests changes to the ATC/Suzuki Website, ATC shall have
the right to determine the affect on the work hereunder and, without limitation,
shall have the right to quote to Suzuki any additional charges or modifications
to the schedule, work or any other items affected by Suzuki's requested change.
If the parties are able to mutually agree on such changes, ATC shall document
the requested changes and additional charges and modifications in writing and
once signed by Suzuki, shall serve as an amendment to this Agreement and Exhibit
A. Failing such agreement, the scope of ATC's work shall remain unchanged.
b. OPERATION AND MAINTENANCE OF THE ATC/SUZUKI WEBSITE.
i. After acceptance by Suzuki or such later date as Suzuki requests,
ATC shall make the ATC/Suzuki Website available twenty-four hours per day, seven
days per week, to permitted individuals and/or access devices as specified and
designated by Suzuki in accordance with Exhibit A. Without limiting the
preceding sentence, ATC shall provide password-protected access to the
ATC/Suzuki Website to any and all departments of Suzuki, the Enrolled Dealers,
and additional companies providing support to Suzuki in the sale of Suzuki
Vehicles. Suzuki has reviewed and accepted the ATC/Suzuki Website proposed by
ATC as currently contained in the Exhibit A. Suzuki agrees that any access by
Enrolled Dealers to the ATC/Suzuki Website will be governed by an access
agreement to be provided by ATC. ATC shall provide those parties permitted to
access the ATC/Suzuki Website continuous communication, access to data, viewing
of all Suzuki Vehicles intended for sale, and the ability to buy and sell
certain Suzuki Vehicles. ATC will not be responsible for access to the
ATC/Suzuki Website by parties unauthorized by Suzuki.
ii. ATC shall provide the necessary System, together with appropriate
facilities and operating environment to support and maintain the operation of
the ATC/Suzuki Website for Suzuki hereunder. ATC will provide on-going technical
support as required to maintain the ATC/Suzuki Website in proper operating
condition in conformity with Exhibit A, during the Term of this Agreement. If,
during the Term of this Agreement, the ATC/Suzuki Website fails to operate in
substantial conformity with Exhibit A, and such failure is not due to Suzuki,
the Content or causes outside the control of ATC, then ATC will use all
reasonable commercial efforts to correct the non-conformity and restore the
ATC/Suzuki Website to its proper operation, consistent with the requirements of
this Agreement.
iii. ATC shall use its best efforts to assure that the ATC/Suzuki
Website accurately displays the Content as provided by Suzuki or its designated
agents, such as matching Suzuki lease account
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numbers and the vehicle identification number or "VIN", incorporation of the
Suzuki pricing table, assignment of user passwords online and/or direct, and
other possible areas of the ATC/Suzuki Website as Suzuki deems necessary;
provided that ATC is not responsible for confirming the accuracy of the Content
provided to it for inclusion in the ATC/Suzuki Website from Suzuki or its
designated agents.
iv. At Suzuki's sole option, dealers that are not Suzuki Dealers may be
allowed to purchase vehicles from the ATC/Suzuki Website. The terms and
conditions of such event shall be negotiated and contracted between the parties
at such time as Suzuki deems necessary. However, if Suzuki elects to allow such
purchases, the parties agree that ATC may charge a Buyer's fee to be paid by the
non-Suzuki dealer.
c. MARKETING. ATC shall, for purposes of contacting prospective
purchasers of Suzuki Vehicles, and driving those prospective purchasers to the
ATC/Suzuki Website, provide dedicated telemarketing, fax and e-mail campaigns,
and will by request provide at an additional fee, national and/or regional
publication advertisements, direct mail, and representation at any and all
Suzuki events, strategy sessions, dealer functions, and/or automotive industry
seminars and associated functions.
EXPANDED MARKETING. ATC shall, for purposes of driving
interested dealers to Suzuki vehicles offered at select auction locations,
provide additional dedicated telemarketing, fax and email campaigns, as well as
the production and distribution of a monthly Suzuki national auction calendar of
events. Additionally, ATC will by Suzuki's request provide at an additional fee,
national and/or regional marketing support materials, including but not limited
to advertisements, direct mail campaigns, and auction banners.
d. DOMAIN NAME REGISTRATION. ATC will register or arrange to register
with the appropriate authorities, the Domain Name (and any other domain names
specified in writing by Suzuki during the Term) and will use said Domain Name in
connection with the ATC/Suzuki Website for Suzuki. Suzuki will own all rights in
the Domain Name. Suzuki will be listed as the registrant of the domain name and
ATC shall serve as the technical and administrative contact for purposes of
technical operation of the ATC/Suzuki Website. Suzuki shall have the right to
designate any other party as the technical and administrative contact for its
domain name at any time during the Term. Suzuki is responsible for all filing
and other fees associated with the registration, maintenance and filing for
domain names in connection with the ATC/Suzuki Website.
e. WEBSITE ADVERTISING. Suzuki acknowledges and agrees that ATC, at its
sole cost and expense, shall have the exclusive and unlimited right to sell,
manage and administer any and all advertising, promotions and sponsorships on
and through the ATC/Suzuki Website. ATC shall retain one hundred percent (100%)
of the total revenue generated by such advertising, promotions and sponsorships.
f. ADDITIONAL SERVICES. Suzuki may request additional services from ATC
not specified hereunder, including, without limitation, additional design and
development services, increased ATC/Suzuki Website or System capacity, or
enhancements to the ATC/Suzuki Website and System. ATC agrees to make available
any and all such services which it generally makes available to customers in the
commercial marketplace, subject to mutual agreement in writing which shall refer
to and form an amendment to this Agreement once signed by both parties.
4. CONTENT LICENSE.
a. Suzuki will, at its own expense, provide to ATC all Content to
appear in the ATC/Suzuki Website as described in Exhibit A. Suzuki assumes sole
responsibility for the accuracy of any Content provided to ATC. Suzuki will
procure at its own expense all necessary rights, licenses, and permissions and
all other agreements and documentation to permit use of the Content in the
ATC/Suzuki Website as contemplated herein.
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b. Suzuki grants ATC a license, for the Term to: (a) digitize, convert,
install, upload, modify, select, order, arrange, compile, combine, synchronize
and otherwise use each element of the Content with other elements of the Content
and with any software developed by ATC to prepare and create the ATC/Suzuki
Website; (b) to use, reproduce, store, process, retrieve, transmit, distribute,
publish, publicly perform and hyperlink the Content solely in connection with
the use of the operation and use ATC/Suzuki Website; and (c) to make archive or
backup copies and other copies of the Content as reasonably necessary to
operate, update, support and maintain the ATC/Suzuki Website.
5. FEES.
a. As consideration for the services to be rendered by ATC, Suzuki
shall pay to ATC the Fees as follows:
Data Management fee: $ * per Suzuki Vehicle listed on the
ATC/Suzuki Website
Sale fee: $ * per Suzuki Vehicle sold on the
ATC/Suzuki Website
Buy fee: $ * per Suzuki Vehicle purchased on the
ATC/Suzuki Website by a registered Dealer
Auction Marketing fee: $ * per vehicle sold at "select" Suzuki
auction locations, where Suzuki desires
marketing assistance
b. Suzuki's obligation to pay ATC the Buy Fee and Sale Fee arises at
the time that an order becomes a binding order for Suzuki and Enrolled Member in
accordance with the Terms of Sale (to be agreed upon by the parties and attached
hereto as Exhibit B). Funds from any transactions executed through the
ATC/Suzuki site will be processed by a third-party service, and any per vehicle
listed billing will be presented to Suzuki monthly by ATC. All payments due to
ATC hereunder shall be payable to ATC at 00000 Xxxxx Xxxxxx Xxxx, Xxxxx 0,
Xxxxxxxxxx, XX 00000, or at such other place or places as ATC may, by written
notice, direct. Suzuki shall pay the Fees to ATC on or before the last day of
each calendar month during the term of this Agreement. ATC shall have the right
to charge interest at the lesser of one and one half (1.5 %) percent per month
or the maximum rate permitted by law, for any payments hereunder which remain
outstanding and unpaid for more than thirty (30) days after their respective due
dates.
c. The prices and charges set forth herein do not include and Suzuki
agrees to pay all taxes levied against or upon the ATC/Suzuki Website and any
services or other materials provided hereunder, as well as Suzuki's use thereof,
exclusive, however, of taxes based on ATC's income, which taxes shall be paid by
ATC.
6. PROPRIETARY RIGHTS.
a. ATC shall own all right, title and interest (including, without
limitation, intellectual property rights) in and to the ATC/Suzuki Website,
System and software, but excluding any Content or other materials or
information, which is proprietary to and provided by Suzuki hereunder. ATC has
the sole right to obtain, hold and renew in its own name and for its own
benefit, any patents, copyrights, registrations and other similar protection,
except as specifically provided herein or subsequently mutually agreed upon in
writing. If, for any reason, title and ownership rights do not vest in ATC as
contemplated hereunder, Suzuki irrevocably assigns, transfers and conveys to ATC
all right, title and interest therein and Suzuki will cooperate with ATC and
execute all documents necessary to enable ATC to perfect, preserve, register and
record its rights.
b. Except as specifically provided hereunder, nothing in this Agreement
shall be construed to transfer, convey, impair or otherwise adversely affect
ATC's ownership and proprietary rights in and to its information, materials or
technology, tangible or intangible, in any form and in any medium.
5
* Confidential information omitted and filed separately with the Securities and
Exchange Commission
Correspondingly, nothing in this Agreement shall be construed to transfer,
convey, impair or otherwise adversely affect Suzuki's ownership and proprietary
rights in and to its respective Content or any other Suzuki information,
materials or technology, tangible or intangible, in any form and in any medium.
c. In consideration of the charges and fees payable by Suzuki
hereunder, ATC grants to Suzuki a non-exclusive, non-transferable, right and
license during the term of this Agreement to use the ATC/Suzuki Website; and,
solely during the term of this Agreement, a non-exclusive, non-transferable
right and license to insert and place Content onto the ATC/Suzuki Website,
subject to the restrictions set forth in this Agreement.
d. ATC acknowledges and agrees that any programs, images, graphics,
text, video, designs, data, information and other materials supplied by or on
behalf of Suzuki in connection with this Agreement (including, without
limitation, Content and any derivative works or adaptations necessary to
re-format same for use in connection with the ATC/Suzuki Website), as well as
the Domain Name, shall be and remain the sole and exclusive property of Suzuki.
Suzuki acknowledges and agrees that ATC is acting solely as the ATC/Suzuki
Website developer, System host and Internet service provider for the ATC/Suzuki
Website and that Suzuki, and not ATC, is solely and exclusively responsible and
liable for screening, policing, securing, editing and monitoring all Content
(whether provided by Suzuki), any communications transmitted, received,
displayed, used or contained on or through the ATC/Suzuki Website by Suzuki
and/or its respective customers and suppliers, and any and all transactions
processed thereby, and for providing billing and invoicing, order fulfillment
services, customer service and support, and any other services, information,
communications, data and materials in connection with the ATC/Suzuki Website or
otherwise as a result of this Agreement.
e. Suzuki acknowledges that the ATC/Suzuki Website contains Third Party
Software, and that the licensor of the Third Party software has a proprietary
interest in such software. Suzuki acknowledges and agrees that it has no rights
of any kind or nature to any Software or Third Party Software, including the
ATC/Suzuki Website, other than those rights set forth in this Agreement.
f. Except as specifically provided in this Agreement, neither Party
shall use the name, brands, logos or marks, refer to or identify the other in
advertising or publicity, promotional or any other communications to others
without first securing the written consent of such other Party; provided that
ATC may list Suzuki's name in a general listing of all or any portion of its
customers.
7. REPRESENTATIONS AND WARRANTIES.
a. ATC represents and warrants to Suzuki that: (i) it has the right to
enter into this Agreement and its obligations are not in conflict with any other
of its obligations; and (ii) the ATC/Suzuki Website as designed and implemented
by ATC does not infringe upon the rights of any third party and complies with
all applicable laws and regulations; provided, however, that Suzuki shall be
responsible for determining the compliance of the ATC/Suzuki Website with any
laws or regulations relating to the sale of motor vehicles and ATC is not
responsible for complying with any such laws or regulations.
b. Suzuki represents and warrants to ATC that: (i) it has the right to
enter into this Agreement and its obligations are not in conflict with any other
of its obligations; (ii) Suzuki is either the owner or has full rights and
authority from the owner to provide, use, display or otherwise deal with the
Content and any other information, data and materials provided to ATC or
available from or through the ATC/Suzuki Website and the System; (iii) neither
the display, provision or other treatment of Content, nor its receipt,
possession or use by or through the ATC/Suzuki Website and the System, nor ATC's
performance of Suzuki's requirements and services hereunder (including, without
limitation, development, implementation, operation or maintenance of the
ATC/Suzuki Website hereunder) will infringe upon or violate the rights of any
other party or violate or contravene any federal, state and local
6
laws, regulations, ordinances and/or any other applicable codes and rules of
conduct; and (iv) Suzuki is solely responsible and liable for the Content and
materials transmitted, received, displayed, used and/or contained on or through
the ATC/Suzuki Website and any and all transactions processed thereby.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE
HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING ANY DETERMINATION
THAT ANY REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL ATC BE
LIABLE OR OTHERWISE RESPONSIBLE TO SUZUKI, THE ENROLLED DEALERS OR TO ANY OTHER
THIRD PARTY, FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT. THE FOREGOING DISCLAIMER OF LIABILITY INCLUDES ALL DAMAGES,
DIRECT AND INDIRECT, HOWSOEVER ARISING OR DENOMINATED, REGARDLESS OF THE FORM OF
THE ACTION OR THE BASIS OF ANY CLAIM OR ACTION. IF, FOR ANY REASON, A COURT OF
COMPETENT JURISDICTION SHALL STILL HOLD ATC LIABLE FOR DAMAGES HEREUNDER, IN NO
EVENT SHALL ATC'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY SUZUKI
TO ATC HEREUNDER IN RESPECT OF THE GOODS OR SERVICES GIVING RISE TO THE CLAIM OR
ACTION.
9. INDEMNIFICATION.
a. ATC shall defend and indemnify Suzuki against any loss, damage or
expense arising from any breach of ATC's obligations under this Agreement;
provided that ATC shall have the right to defend any third party claim that is
asserted against which Suzuki is indemnified under this subparagraph.
Notwithstanding anything contained in this Agreement, the parties agree that ATC
will not be in breach of its obligations under this Agreement in the event ATC
is not able to perform its obligations because of any natural casualty, war,
insurrection, civil disturbance or other causes beyond its reasonable control.
b. Suzuki, shall defend and indemnify ATC against any loss, damage or
expense arising from: (i) actual or alleged infringement of any intellectual or
other proprietary right based on Suzuki or its Enrolled Members' use of the
Content and any other materials furnished by Suzuki hereunder; and (ii) breach
of any representation or warranty made by Suzuki under this Agreement. ATC will
give Suzuki prompt notice of any such claim or action and copies of all papers
served upon or received by ATC relating to it. Suzuki further agrees to
indemnify and hold ATC harmless from and against any and all liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees)
associated with any such claim or action.
10. DEFAULT AND TERMINATION.
The failure of a Party hereto to perform any covenant, term or
condition of this Agreement to be kept or performed by such Party shall be an
Event of Default for purposes of this Agreement if the Party asserting a default
under this Agreement has given written notice of such default to the Party
claimed to be in default and such Party has not cured such failure within a
reasonable period of time.
Upon the occurrence of an Event of Default, the aggrieved Party may, at
its discretion and without further notice to the other, exercise one or more of
the following remedies:
a. Terminate this Agreement;
b. Proceed by appropriate court action to enforce the terms hereof,
or to recover damages for the breach of any term hereof; or
c. Exercise any other right or remedy available under applicable law.
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11. GENERAL PROVISIONS.
REMEDIES. All remedies herein conferred upon either Party hereto shall
be cumulative and concurrent with every other right or remedy given hereunder,
or now or hereafter existing at law or in equity.
ENTIRE AGREEMENT. This Agreement, together with Exhibits and any other
documents specifically referred to herein and which are incorporated by this
reference, constitutes the entire agreement between the parties relating to the
subject matter hereof and supersedes any prior or inconsistent agreements,
negotiations, representations and promises, written or oral. No amendment or
modification to this Agreement, nor any failure or delay in enforcing any term,
exercising any option or requiring performance shall be binding or construed as
a waiver unless agreed to in writing by an authorized representative of each of
the parties.
a. SEVERABILITY. Should any part, term or provision of this Agreement
be held to be illegal, or in conflict with any law of the state where made, the
validity of the remaining portions or provisions shall not be affected.
b. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties on separate counterparts, all of which together
shall constitute a single agreement.
c. CONFIDENTIALITY. In the course of this Agreement, each Party may be
exposed to the Confidential Information of the other Party. For purposes of this
Agreement, "Confidential Information" means any information disclosed by one
Party to the other pursuant to this Agreement which is in written, graphic,
machine readable, or other tangible form and is marked "Confidential",
"Proprietary" or in some other manner to indicate its confidential nature. ATC
and Suzuki each agree to treat as confidential all Confidential Information of
the other Party, not to use such Confidential Information except as set forth
herein and not to disclose such Confidential Information to any third party
except as may be reasonably required pursuant to this Agreement and subject to
confidentiality obligations at least as protective as those set forth herein.
Without limiting the generality of the foregoing, each of the parties shall use
at least the same degree of care which it uses to prevent the disclosure of its
own confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other Party under this
Agreement, provided, however, that in no event shall such degree of care be less
than reasonable in light of general industry practice. Notwithstanding the
foregoing, neither Party hereto shall have liability to the other with regard to
any Confidential Information of the other which (i) was in the public domain at
the time it was disclosed or becomes in the public domain through no fault of
the receiver; (ii) was known to the receiver, without restriction, at the time
of disclosure as shown by the files of the receiver in existence at the time of
disclosure; (iii) is disclosed with the prior written approval of the discloser;
(iv) was independently developed by the receiver without any use of the
Confidential Information; (v) becomes known to the receiver, without
restriction, from a source other than the discloser, without breach of this
Agreement by receiver; or (vi) is disclosed pursuant to the order or requirement
of a court, administrative agency, or other governmental body, provided,
however, that the receiver shall provide prompt notice thereof to enable the
discloser to seek a protective order to otherwise prevent such disclosure. ATC
and Suzuki each agree to use all reasonable efforts, including, without
limitation, the execution of proprietary non-disclosure agreements by employees
and subcontractors, to ensure compliance with the terms set forth in this
paragraph by its officers, employees, subcontractors and any third party having
access to the Confidential Information. Each Party acknowledges that any
disclosure to third parties of Confidential Information may cause immediate and
irreparable harm to the other.
d. INDEPENDENT CONTRACTORS: Each Party is acting as an independent
contractor under this Agreement. Each Party's personnel are not employees or
agents of the other parties for federal, state or other taxes or any other
purposes whatsoever, and are not entitled to compensation, employee benefits or
8
other incidents of employment from any of the other parties. Each Party assumes
sole and full responsibility for the acts and omissions of its own employees,
representatives and agents. Personnel of one Party have no authority to make
commitments or enter into contracts on behalf of, bind or otherwise obligate any
other Party in any manner whatsoever. Except for the specific obligations set
forth in this Agreement, nothing hereunder shall be deemed to constitute,
create, give effect to or otherwise recognize a joint venture, partnership or
business entity of any kind, nor shall anything in this Agreement be deemed to
constitute any party the agent or authorized representative of the other.
e. ASSIGNMENT. This Agreement is binding on the parties, their
successors and permitted assigns. Suzuki may not assign, transfer or subcontract
this Agreement, or any rights or obligations hereunder, to any other Party
without ATC's prior written consent and any attempt to do so shall be void.
f. NOTICES. All notices shall be in writing and delivered personally or
properly mailed, by certified mail or overnight courier, to the addresses set
forth at the beginning of this Agreement, to the attention of the undersigned or
by electronic or digital means which is subject to confirmation of receipt and
authentication. Notices shall be deemed given on the date delivered or when
placed in the mails as specified or when receipt is confirmed, whichever is
applicable. Either Party may add to or change the address or addressee for
notice by giving notice to the other Party.
g. GOVERNING LAW & Interpretation. This Agreement shall be construed
and enforced under the substantive laws of the State of Arizona, without regard
to its conflict of laws provisions. The parties hereto consent to the
jurisdiction of the state and federal courts located in Maricopa County, Arizona
in the event there is a legal proceeding relating to this Agreement.
h. HEADINGS. Headings are solely for reference and shall not affect the
meaning of any terms.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXXXXXXXXXXXXXX.XXX, INC. AMERICAN SUZUKI MOTOR CORPORATION
BY:/s/XXXX XXXXXX BY: /s/XXX XXXXXX
ITS: Vice President ITS: National Fleet and Remarketing
Manager
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EXHIBIT A
SUZUKI WEBSITE OVERVIEW DOCUMENT
General
The American Suzuki Motor Corporation website designed, developed, executed, and
maintained by XxxxXxxxxXxxxxx.xxx Inc. is for the purpose of remarketing
"Suzuki" vehicles to Suzuki franchised and/or other non-Suzuki franchised
automobile dealers. The website, known as the Suzuki PROLine, or Suzuki Program
Remarketing Online, will allow the viewing and sale of available "Suzuki"
vehicles to a select dealer audience determined by Suzuki, enrolled and managed
by XxxxXxxxxXxxxxx.xxx.
Available Suzuki PROLine vehicle inventory is comprised of select Suzuki
vehicles from various rental fleets, owned or managed by Suzuki. Proline
inventories will be populated from select Suzuki holding and/or marshalling
facilities, various daily rental locations, and/or select Suzuki auction
locations. Available Suzuki PROLine inventory will be presented with third party
condition reports and/or digital photos to enrolled dealers for a pre-determined
period of time for sale. Select parties such as purchasing dealer, auction,
rental company, Suzuki, and other, will receive notification of all vehicles
sold on the PROLine via automated email and/or fax delivery. Suzuki PROLine
inventory sales status will be continuously available to select parties deemed
necessary by Suzuki. Any unsold vehicle inventory will be "rolled off" the
PROLine website and presented through select Suzuki auction lanes.
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EXHIBIT B
SUZUKI PROLINE TERMS OF SALE
A Suzuki PROLine vehicle sale consists of the following components,
Delivered by AutoTradeCenter
1. An available Suzuki vehicle
2. An enrolled dealer/buyer
3. An electronic purchase selection
4. An automated purchase confirmation delivery via email or fax to
all parties deemed necessary by Suzuki
Delivered by third party such as an auction and/or administrative agency,
Upon receipt of Suzuki PROLine purchase confirmation from AutoTradeCenter
1. Xxxx of sale is generated
2. Title is delivered to predetermined party responsible for the
(i.e. auction holding vehicle purchased
3. Sale proceeds collected from purchaser
4. Title is delivered to purchaser
5. Net proceeds delivered via wire from auction to seller specified
account
6. Xxxx of sale documentation delivered to seller
AutoTradeCenter will invoice individual auctions for Suzuki PROLine transactions
on a weekly/monthly basis.
AutoTradeCenter will invoice Suzuki for all data management fees on a
weekly/monthly basis.
AutoTradeCenter will invoice Suzuki for all agreed upon enhanced marketing
services on a weekly/monthly basis.
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[TBD]
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