THIS AGREEMENT made effective the 17th day of October, 2000.
BETWEEN:
VARIEGATED VENTURES LTD. O/A XXXXXXXXXXXXX.XXX, INC. a corporation duly
incorporated with its head offices located in Xxxxxxx, Xxxxxxx, Xxxxxx
(Hereinafter referred to as "TheMotorpages")
- and -
XXX XXXXXXXXX'X LEASEMASTER NATIONAL, a corporation duly incorporated
pursuant to the laws of the Dominion of Canada (Hereinafter referred to
as "XXX XXXXXXXXX'X LEASEMASTER NATIONAL")
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.
B. XXX XXXXXXXXX'X LEASEMASTER NATIONAL is a fleet lease company
consisting of off-lease and repossessed vehicles.
C. This Agreement contains the provision of computer-mediated information
services for XXX XXXXXXXXX'X LEASEMASTER NATIONAL'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 XXX
XXXXXXXXX'X LEASEMASTER NATIONAL will work co-operatively in the
promotion and sale of vehicles supplied by XXX XXXXXXXXX'X LEASEMASTER
NATIONAL through the Online Tendering System contained in
XxxXxxxxxxxxx.xxx's Virtual Private Dealer Network.
E. TheMotorpages shall customize its Internet technology and develop the
implementation of an Internet Marketing Strategy for the XXX
XXXXXXXXX'X LEASEMASTER NATIONAL 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 XXX XXXXXXXXX'X LEASEMASTER NATIONAL
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 XXX XXXXXXXXX'X LEASEMASTER NATIONAL
full access to the Online Tendering System technology as contained in
the Virtual Private Dealer Network of the web site
xxx.xxxxxxxxxxxxx.xxx. XXX XXXXXXXXX'X LEASEMASTER NATIONAL 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 including all four
sides of the vehicle from the exterior and one interior image of the
dash and front seat area, conditioning report (if applicable) 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
----
If either such party wishes to cancel this agreement, the party must
provide a 90 day written notice of such cancellation. Until this
Agreement is canceled, XXX XXXXXXXXX'X LEASEMASTER NATIONAL shall place
its auto inventory (as required) with the Virtual Private Dealer
Network and TheMotorpages shall provide XXX XXXXXXXXX'X LEASEMASTER
NATIONAL with its services as contained in the Virtual Private Dealer
Network.
3. Exclusivity
-----------
XXX XXXXXXXXX'X LEASEMASTER NATIONAL agrees that during the term of
this Agreement it shall not utilize the services of any other Internet
automotive service portal for the listing or sale of its automotive
inventories, with the exception of its own Internet site.
4. Coding of Information
---------------------
XXX XXXXXXXXX'X LEASEMASTER NATIONAL 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 XXX XXXXXXXXX'X LEASEMASTER
NATIONAL requires the services of TheMotorpages to assist with the
process of up-loading vehicle information to the Online Tendering
System, then XXX XXXXXXXXX'X LEASEMASTER NATIONAL agrees to compensate
The Xxxxxxxxxx.xxx in accordance with its standard rate.
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5. Tendering Process - Ongoing
---------------------------
TheMotorpages shall conduct an ongoing tendering process for XXX
XXXXXXXXX'X LEASEMASTER NATIONAL which shall commence on each Wednesday
at 10:00 a.m. EST and shall close on the Friday of that week at 3:00
p.m. EST. The vehicles that have not reached a bid greater than the
reserve bid can be reactivated on TheMotorpage's On-line Tendering
System the following Monday, for the tendering closing the following
Thursday, with the bids from the previous week being voided and
starting at the minimum bid amount for each vehicle. Should XXX
XXXXXXXXX'X LEASEMASTER NATIONAL choose not ot have these vehicles
reactivated on the Virtual Private Dealer Network for the next
tendering process, they must notify TheMotopages with 24 hours of
tender closing.
6. Fees
----
XXX XXXXXXXXX'X LEASEMASTER NATIONAL 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. XXX XXXXXXXXX'X LEASEMASTER NATIONAL 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. TheMotorpages shall have no right or
authority to negotiate any sale of XXX XXXXXXXXX'X LEASEMASTER NATIONAL
vehicles and shall not be involved in the transfer of funds or
ownership of any such vehicle. All information provided to
TheMotorpages shall remain the property of XXX XXXXXXXXX'X LEASEMASTER
NATIONAL and TheMotorpages shall have no right to use any such
information for any purpose other than to effect the on-line tendering
process unless permission in writing is received from XXX XXXXXXXXX'X
LEASEMASTER NATIONAL.
7. Payment of Fees
---------------
XXX XXXXXXXXX'X LEASEMASTER NATIONAL shall submit payment (buyer and
sellers fees) for any particular tendering process within fifteen days
of closing of tender.
8. Use of Trademark
----------------
TheMotorpages shall be entitled to use the XXX XXXXXXXXX'X LEASEMASTER
NATIONAL trademark on the Virtual Private Dealer Network and to create
an "icon" with such trademark. TheMotorpages shall not be entitled to
use the XXX XXXXXXXXX'X LEASEMASTER NATIONAL trademark for any other
purpose whatsoever unless approval in writing is provided to
TheMotorpages by XXX XXXXXXXXX'X LEASEMASTER NATIONAL.
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9. Confidentiality
---------------
a. It is understood that in the provision of these services
TheMotorpages may disclose confidential and proprietary
information to XXX XXXXXXXXX'X LEASEMASTER NATIONAL and XXX
XXXXXXXXX'X LEASEMASTER NATIONAL may disclose confidential
information to TheMotorpages as per the following:
b. 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.
c. TheMotorpages will furnish to XXX XXXXXXXXX'X LEASEMASTER
NATIONAL documentary information and tangible items relating
to the development of the Online Tendering System to the
extent necessary to permit XXX XXXXXXXXX'X LEASEMASTER
NATIONAL to determine the applicability of the Online
Tendering system to XXX XXXXXXXXX'X LEASEMASTER NATIONAL's
operations, XXX XXXXXXXXX'X LEASEMASTER NATIONAL's interest in
negotiating this Agreement and XXX XXXXXXXXX'X LEASEMASTER
NATIONAL's special Online Tendering system development
requirements.
d. XXX XXXXXXXXX'X LEASEMASTER NATIONAL will provide
TheMotorpages with information relating to its operations
individual Online Tendering System requirements. TheMotorpages
shall return any such documentary information to XXX
XXXXXXXXX'X LEASEMASTER NATIONAL.
e. 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.
f. 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.
g. The burden of proving these exceptions to the confidentiality
and use provisions of this Agreement resides with the
recipient of such information.
h. 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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10. Breach of Contract
------------------
In the event that TheMotorpages or XXX XXXXXXXXX'X LEASEMASTER NATIONAL
breaches any of the terms or conditions of this Agreement, it is hereby
acknowledged and agreed that the parties shall be entitled to equitable
relief, including injunction of specific performance in addition to all
other remedies available. It is acknowledged that no failure by either
of the parties in exercising any right, power or privilege hereunder
will operate as a waiver thereof, nor will any single or partial
exercise of any right, power or privilege preclude any other or further
exercise thereof.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
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16. 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 XXX XXXXXXXXX'X LEASEMASTER NATIONAL to:
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
17. 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.
18. 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.
19. 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.
20. 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.
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21. 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.
22. Currency
--------
All currencies referred to in this Agreement are stated in the lawful
currency of Canada.
23. 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.
24. 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.
25. 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.
26. 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.
27. Time of Essence
---------------
Time is of the Essence.
28. Assignment Clause
-----------------
This Agreement may not be assigned without the written consent of the
TheMotorpages.
29. 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.
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30. 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 16, 2000
--------------------------------- ------------------------
XXX XXXXXXXXX'X LEASEMASTER NATIONAL
Per: /s/ signature Dated: Oct 17/ 2000
--------------------------------- ------------------------
