DAIMLERCHRYSLER DEALER WEB SITE PROGRAM
SERVICES AGREEMENT
This Dealer Services Agreement (this "AGREEMENT") is effective as of May 1,
2000 (the "EFFECTIVE DATE"), by and between The Cobalt Group, Inc., a Washington
corporation, ("COBALT") with offices located at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, and DaimlerChrysler Corporation, a Delaware
corporation, ("CLIENT") with offices located at 0000 Xxxxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000 (each individually a "PARTY" and together the "PARTIES").
In consideration of the promises, terms and conditions contained herein, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Cobalt and Client agree as follows:
1. DEFINITIONS
Any defined terms not otherwise defined herein shall have the following
meanings:
1.1. An "AFFILIATE" of an entity shall mean any entity which, directly or
indirectly, is controlled by, controls or is under common control with
such entity (with control meaning ownership of 50 percent or more of
an entity and/or otherwise having effective control of an entity).
1.2. "CLIENT SYSTEM" shall mean the templates developed for the Dealer Web
Site Program and related services provided by Cobalt hereunder, as
such templates may be updated or modified pursuant to the terms of
this Agreement.
1.3. "CLIENT PROPERTY" means (i) any and all graphics, images, text,
documentation or other materials provided by Client or a Dealer to
Cobalt in connection with the Client System, and (ii) any and all
graphics, images, text, documentation, HTML code or other elements of
the Client System developed for Client or Dealers by Cobalt pursuant
to this Agreement.
1.4. "COBALT PROPERTY" means any and all software, code, graphics, images,
text, documentation or other materials, other than Client Property,
used or provided by Cobalt in connection with this Agreement, or any
other element of the Client System in which Cobalt has any preexisting
intellectual property rights.
1.5. "DEALER" means each of Client's Dodge, Jeep and Chrysler automobile
retailers in North America that participate in the Dealer Web Site
Program under this Agreement.
1.6. "DEALER WEB SITE PROGRAM" shall mean the standard set of services
offered by Cobalt to Dealers, consisting primarily of one or more Web
sites made up of those Web pages identified in the Specifications.
1.7. "LICENSED PRODUCTS" shall mean any Cobalt Property or other property
supplied by Cobalt, other than Client Property, which is incorporated
into the Client System or otherwise supplied to Client or Dealers
under this Agreement.
1.8. "SPECIFICATIONS" shall mean all the specifications for the Client
System set forth in EXHIBIT A, as they may be revised pursuant to
Section 2.
2. DEVELOPMENT AND DELIVERY OF THE CLIENT SYSTEM
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2.1. DEVELOPMENT. Cobalt shall develop and deliver to Client and Dealers
the Client System in accordance with the Specifications and the
delivery schedule set forth in Exhibit A to this Agreement. Client
will encourage its Dealers to cooperate with Cobalt and to provide
such assistance for the development and delivery of the Client System
as Cobalt may reasonably request, subject to any and all applicable
state or federal laws or regulations and Client's reasonable
interpretation of those laws or regulations.
2.2. CHANGE REQUESTS. The Parties anticipate that Client may, from time to
time, desire changes to the Client System, consisting of additions,
modifications, deletions or other revisions to the Specifications.
Each such change must be reflected in a written document (a "CHANGE
ORDER"), signed by an authorized representative of each Party, that
includes the cost of the change and a detailed description of the
specific change, along with any modified Specifications ("APPROVED
CHANGE ORDER"). Client agrees to pay for fees specified in an Approved
Change Order. Client will not pay for any additions, modifications,
deletions or other revisions or customizations requested or approved
by a Dealer; those arrangements, if any, are beyond the subject matter
of this Agreement.
3. ENDORSED WEB SITE SERVICES
3.1. COBALT WEB SERVICES. Cobalt will offer to Dealers the Dealer Web Site
Program as described in Exhibit A , for the fees chargeable to Client,
as set forth in Section 7 below. Cobalt agrees not to materially alter
the components of the Dealer Web Site Program during the Term without
the prior written approval of Client and an amendment to this
Agreement signed by an authorized representative of each Party. Cobalt
will provide support to the Dealers consistent with the Support
Guidelines attached hereto as EXHIBIT B. Dealers will be required to
enter into a Service Agreement with Cobalt covering the scope of
services for Dealers required under this Agreement. Cobalt agrees that
each of those Service Agreements will grant rights of the same scope
granted to Client and impose restrictions no more restrictive than
those imposed on Client under Sections 6 and 8 of this Agreement. In
addition, Cobalt agrees that each of those Service Agreements will
include warranties extending from Cobalt to each Dealer which are, in
substance, the same as the warranties set forth in Sections 9.4-9.6 of
this Agreement. In addition, each of those Service Agreements must
state expressly and conspicuously that "DaimlerChrysler Corporation
makes no representations or warranties of any kind to Dealers
regarding software and services provided by Cobalt or regarding a
Dealer's business results using that software or those services. In
exchange for Client's guaranteed payment to Cobalt under this
Agreement, Cobalt must deliver to each Dealer the software and
services required under the Dealer Web Site Program, all as described
in Exhibits A and B, and each Dealer may participate in the Dealer Web
Site Program regardless of any delay that Cobalt may encounter in
getting a Dealer to sign a Services Agreement. Client will, however,
cooperate with Cobalt to get each Dealer to act expeditiously in its
dealings with Cobalt regarding efforts to sign a Services Agreement."
3.2. CLIENT ENDORSEMENT. Client will identify Cobalt as the exclusive
Client-endorsed provider of those services included in the Dealer Web
Site Program to Dealers in the United States. Client agrees that the
Dealer Web Site Program will be designated as "Client Endorsed." Only
Cobalt-built Dealer Web Sites will be linked to dealer locators
located at xxxxxxxx.xxx, xxxx.xxx, xxxxxxxx.xxx, and 0xxxxxx.xxx,
except for the limited standard web sites that Client provides to
every dealer. Client reserves the right to withdraw this endorsement
upon 10 days' prior written notice to Cobalt, which notice must
include reasonable grounds for the withdrawal.
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3.3. COBALT DEALER UPGRADES. The Parties agree that Dealers that are
current customers of Cobalt and that participate in the Dealer Web
Site Program under this Agreement will be eligible to terminate the
Cobalt Services Agreement existing at the time of such purchase
without penalty; provided that the Dealer executes a new Cobalt
Services Agreement relating to the Dealer Web Site Program.
4. MARKETING EFFORTS
4.1. INITIAL PRESS RELEASE. Within five business days following the
Effective Date, the Parties agree to issue a joint press release, the
form and content of which shall be mutually agreed upon by the Parties
in writing. From time to time thereafter the Parties may issue joint
press releases as mutually agreed upon in writing.
4.2. MARKETING ACTIVITIES. Cobalt and Client will use their commercially
reasonable efforts to develop and carry out marketing activities with
respect to the Dealer Web Site Program. Cobalt and Client will work to
launch the Dealer Web Site Program according to the schedule set forth
on EXHIBIT C. Marketing support from Client and Cobalt will include,
without limitation, those activities identified on EXHIBIT C, subject
to the following limitation: Client reserves the right to review of
all marketing programs and materials in which Cobalt proposes using
Client's name, Marks or Client's endorsement, and to either approve,
modify or reject those marketing programs and materials.
5. HOSTING & MAINTENANCE.
Cobalt will operate, manage and host the Dealer Web Site Program using high
industry standards of workmanship and service. Cobalt shall operate the Web
sites associated with the Dealer Web Site Program (the "CLIENT OR DEALER
SITES") so that such sites are accessible by users via the Internet
twenty-four (24) hours per day, seven (7) days per week, with the exception
of scheduled maintenance periods ("SCHEDULED MAINTENANCE PERIODS"), which
shall last no longer than two hours per day between the hours of 12:00 a.m.
and 6:00 a.m. Pacific Time, or at such other time as to which the Parties
may agree. Except in the case of Scheduled Maintenance Periods, Cobalt
shall, upon its discovery or receipt of notification that a Client or any
Dealer Site is disabled or inaccessible or there are any defects, errors or
omissions in a Client or a Dealer Site which materially and adversely
impact the performance, delivery, accessibility or availability of that
Client or Dealer Site (a "CLIENT OR DEALER SITE PROBLEM"), have qualified
personnel promptly respond to such Client or Dealer Site Problems and use
commercially reasonable efforts to remedy or cause to be remedied the
Client or Dealer Site Problems within a commercially reasonable time not to
exceed three business days. If Cobalt repeatedly fails to make a
commercially reasonable attempt to fix a Client or Dealer Site Problem, or
if a Client or Dealer Site Problem is experienced by more than a third of
all Dealers, Cobalt will be deemed in material breach and Client may
terminate this Agreement.
6. OWNERSHIP AND LICENSE
6.1. COBALT OWNERSHIP. Except for the license granted Client in Section
6.3, Cobalt reserves all right, title and interest to the Licensed
Products (including, without limitation, all intellectual and
proprietary rights therein), including, without limitation, any
upgrades, documentation and derivative works related thereto delivered
to Client under this Agreement. Client agrees to assign any interest
Client has or may acquire (other than the license set forth in Section
6.3) in
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the Licensed Products to Cobalt and otherwise reasonably assist
Cobalt, at Cobalt's expense, in obtaining, securing, perfecting,
maintaining, defending and enforcing for Cobalt's benefit all rights
with respect to the Licensed Products.
6.2. CLIENT OWNERSHIP. Client or a Dealer, as applicable, retain all title
and rights of ownership, including all copyrights, trademarks or other
proprietary rights to the Client Property and any derivative works
thereof, and all related documentation or Client or Dealer data.
Cobalt agrees to assign any interest in the Client Property to Client
or Dealer, as applicable, and to otherwise reasonably assist Client or
Dealer, at Client's or Dealer's expense, in obtaining, securing,
perfecting, maintaining, defending and enforcing for Client's or
Dealer's benefit all rights with respect to the Client Property.
6.3. LICENSED PRODUCT LICENSE. Cobalt hereby grants to Client and to
Dealers a non-exclusive, worldwide, royalty-free right to use,
transmit, perform, display and otherwise utilize the Licensed Products
solely in connection with the Client System and consistent with this
Agreement. To the extent any software is licensed to Client or to
Dealers by Cobalt under this Agreement, all such licenses shall be to
software in object code form only.
6.4. CLIENT PROPERTY LICENSE. Client hereby grants to Cobalt and its
Affiliates, a non-exclusive, worldwide, royalty-free right to use,
reproduce, transmit, perform, display, and otherwise utilize the
Client Property in connection with completing its obligations under
this Agreement, except that any license or release regarding any
graphics, images, text, documentation or other materials provided by a
Dealer to Cobalt in connection with the Client System must be
addressed in separate agreements.
6.5. RESTRICTIONS. The licenses granted to the Parties in Sections 6.3 and
6.4 above set forth the entirety of each of the Parties' rights as
licensees to use the Licensed Products and Client Property. Without
limiting the generality of the foregoing, Client agrees that Client
will:
6.5.1. not modify or prepare any derivative work based upon the
Licensed Products;
6.5.2. not directly or indirectly reverse engineer, disassemble or
decompile the Licensed Products or any portion thereof or
attempt to discover or disclose the source code of the
Licensed Products or any portion thereof;
6.5.3. not remove, obscure, or alter any notice of intellectual
property right present on or in any of the Licensed Products or
any related documentation;
6.5.4. not sublicense, sell, lend, rent, lease, or otherwise transfer
all or any portion of the Licensed Products or any related
documentation to any third party.
7. PAYMENTS
7.1. FEE SCHEDULE. During the Term, Client shall pay Cobalt as follows,
subject to Client's written acceptance of the Client System, which
acceptance shall be based on the Client System's conformance to the
Specifications in Exhibit A for each Dealer on the delivery and
rollout schedule described in Exhibit C ("ACCEPTANCE"):
7.1.1. Dealer Web Site Program fees as set forth in Exhibit D
("PROGRAM FEES");
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7.1.2. Fees set forth on any Approved Change Order; and
7.1.3. Fees associated with Internet domain name registrations and/or
renewals.
7.2. PAYMENTS. Cobalt will invoice Client for Program Fees and domain name
registration fees monthly, in arrears, and for fees associated with
Change Orders as provided in the Change Order. Payment of all fees
shall be due thirty (30) days after the date of the invoice. Program
Fees will be based on the number of Dealers with active Web sites
under the Dealer Web Site Program as of the last day of the previous
month.
7.3. ANNUAL MINIMUM FEES. Client agrees to pay Cobalt not less than the
annual guaranteed fees set forth in EXHIBIT D, subject to Cobalt's
performance of its obligations under this Agreement. In addition to
Program Fees, all fees paid to Cobalt by Client for any purpose during
the Term, including but not limited to fees relating to products or
services provided to Client's Canadian or other international
affiliates, but specifically excluding fees relating to the provision
of services to Client by Cobalt's PartsVoice or IntegraLink divisions
("Aggregate Fees"), will be included when determining whether the
annual minimum has been met.
7.3.1. To the extent that Aggregate Fees during calendar year 2000 do
not equal or exceed the annual minimum, Cobalt will invoice
Client for the difference and such fees will be payable in
accordance with Section 7.2. During calendar years 2001 and
2002, except for the first calendar quarter in the year 2001,
to the extent Aggregate Fees during any calendar quarter do
not equal or exceed one-fourth of the annual minimum, Cobalt
will invoice Client for the difference (the "Quarterly
Difference") and such fees will be payable in accordance with
Section 7.2.
7.4. ADDITIONAL DEALER SERVICES. Client acknowledges and agrees that the
prices set forth in this Section are exclusive of any custom
development or design work that may be requested by a subscribing
Dealer or Client and of any products or services a subscribing Dealer
or Client may purchase in excess of the Dealer Web Site Program, as
the case may be. Client will be invoiced directly by Cobalt for those
additional products or services subscribed to by Dealers and
identified on EXHIBIT D. Cobalt will invoice Dealers directly for
those products or services not included in the Dealer Web Site Program
and not identified on EXHIBIT D. Cobalt agrees that it will make
available those products or services not included in the Dealer Web
Site Program at or below the lowest price Cobalt charges other
automobile dealers or manufacturers for the same products or services.
7.5. TAXES. The fees and any other amounts payable to Cobalt under this
Agreement do not include any taxes, customs, duties, fees or other
amounts assessed or imposed by any governmental authority, other than
any taxes imposed on Cobalt's net income. Client will pay before
delinquency or reimburse Cobalt for all such amounts upon demand
and/or provide certificates or other evidence of exemption to Cobalt
for such amounts.
7.6. ISSUANCE OF COBALT SHARES. Upon execution of this Agreement, Cobalt
shall issue to Client 258,161 shares of newly issued, unregistered
Cobalt common stock.
7.7. ISSUANCE OF COBALT WARRANTS. Upon execution of this Agreement, Cobalt
shall issue to Client three warrants to purchase up to 688,430,
516,322 and 240,950 shares of Cobalt common stock,
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respectively. The warrants to be issued pursuant to this Section will
be subject to the terms and conditions and shall be in a form
substantially the same as the warrant agreements attached hereto as
EXHIBIT E.
8. TERM; TERMINATION
8.1. TERM. Unless earlier terminated as provided below, the initial term of
this Agreement will run through December 31, 2002 beginning on the
Effective Date (the "INITIAL TERM"). Thereafter, this Agreement shall
automatically renew for an additional two-year term (the "RENEWAL
TERM") on the same terms and conditions as set forth herein (except
for fees, which will be as agreed by the Parties), unless either Party
hereto has given written notice to the other Party no later than 90
days prior to the conclusion of the Initial Term. The Initial Term and
the Renewal Term shall be referred to herein as the "TERM".
8.2. TERMINATION FOR BREACH. Either Party may terminate this Agreement at
any time in the event of a material breach of the Agreement by the
other Party which remains uncured after thirty (30) days written
notice thereof to the other Party.
8.3. TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate this
Agreement immediately following written notice to the other Party if
the other Party (i) ceases to do business in the normal course, (ii)
is the subject of any proceeding related to its liquidation or
insolvency (whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iii) makes an assignment for the
benefit of creditors.
8.4. CONSEQUENCES OF TERMINATION.
8.4.1. In the event of any termination of this Agreement pursuant to
Section 8.2, the license granted in Section 6.3 and any other
rights granted to Client and Dealers with respect to any of the
Licensed Products and any related documentation will continue
for a period of 90 days following the effective date of such
termination. During such period Cobalt will use commercially
reasonable efforts to assist Client in transitioning the Client
System to an alternate service provider, at a reasonable charge
to Client for services rendered to Client.
8.4.2. TERMINATION FOR BANKRUPTCY/INSOLVENCY. In the event that Client
terminates this Agreement pursuant to Section 8.3, Cobalt
grants to Client and its Dealers, a royalty-free, worldwide,
perpetual, irrevocable license to copy, use, create and use
derivatives or improvements of, reduce to practice and
manufacture, and distribute to Dealers, all Cobalt Property
required for Client to operate the Client System.
8.4.3. GENERAL. Any and all liabilities accrued under the terms of
this Agreement by either Party prior to the date of termination
of this Agreement and during any transition period following
termination will survive such termination.
9. OTHER TERMS
9.1. PUBLICITY. Client agrees that, following the initial public
announcement of the business relationship between the Parties, Cobalt
may reference the business relationship between the Parties and
Cobalt's status as the sole endorsed provider of Dealer Web sites
other than in Cobalt's marketing, advertising and other promotional
materials.
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9.2. OWNERSHIP OF TRADEMARKS. Each Party acknowledges the ownership of the
other Party in the names, logos, trademarks, tradenames and service
marks (the "MARKS") of the other Party and agrees that all use of the
other Party's Marks will inure to the benefit, and be on behalf, of
the other Party. Each Party acknowledges that its utilization of the
other Party's Marks under the terms of this Agreement will not create
in it, nor will 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.
9.3. 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 will 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.
9.4. REPRESENTATIONS AND WARRANTIES. Cobalt warrants and represents to
Client that, at all times relevant, Cobalt is not encumbered by any
third party, via agreement, employment or other legal relationship
(past or present) or otherwise, to provide the Client System or
Licensed Products and/or to assign to Client or a Dealer the rights in
such Client System or Licensed Products as set forth in this
Agreement. Cobalt further warrants and represents to Client that the
Licensed Products and the Client System do not infringe any U.S. or
foreign patents or copyrights, mask work rights, trade secret rights,
trademark or trade dress rights, or any other proprietary rights of
others (including but not limited to moral rights or rights of privacy
or publicity) of any third party. Cobalt further warrants that Cobalt
has not previously granted and will not grant any rights to any third
party that are inconsistent with the rights granted to Client herein;
that each of Cobalt's employees, consultants, contractors, partners or
agents who have been or will be involved in the development of the
Client System or Licensed Products will have signed an agreement with
Cobalt conveying all proprietary rights in the Client System and
Licensed Products to Cobalt and agreeing to maintain in confidence all
trade secrets embodied in the Client System or Licensed Products.
Cobalt further warrants that the Client System and Licensed Products
will conform substantially to the Specifications in Exhibit A to this
Agreement, including as they may be amended under the terms of this
Agreement.
9.5. NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE CLIENT SYSTEM, THE CLIENT PROPERTY AND THE LICENSED
PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE.
9.6. LIMITATION OF LIABILITY. NEITHER PARTY HERETO SHALL HAVE ANY LIABILITY
TO THE OTHER PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR
INDIRECT, DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR
CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
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MISREPRESENTATIONS, AND OTHER TORTS, BUT SPECIFICALLY EXCLUDING ANY
CAUSES OF ACTION OR CLAIMS RELATING TO INFRINGEMENT OF PATENT,
TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS.
9.7. CONFIDENTIALITY. Cobalt agrees to keep confidential all Client
Property, including but not limited to all data and information
provided by a Dealer, except to the extent that use is expressly
allowed under the terms of this Agreement.
9.8. PRIOR CLIENT APPROVAL FOR SALES OF OTHER COBALT PRODUCTS OR SERVICES.
Cobalt agrees that, prior to January 1, 2001, Cobalt will not market
or sell to Dealers any Internet-based MRO procurement services without
Client's prior written consent. Other than services requested by a
Dealer that relate to modifications or enhancements of the services
provided under this Agreement as described in Exhibit A, and except
for those services specified in Exhibit C, Cobalt will not engage in
targeted solicitation of Dealers for sales of other products or
services without Client's prior written consent.
9.9. NOTICE. Any notice, approval, request, authorization, direction or
other communication under this Agreement will be given in writing and
will be deemed to have been delivered and given for all purposes (i)
on the delivery date if delivered by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is
directed; (iii) one business day after deposit with a commercial
overnight carrier, with written verification of receipt; or (iv) five
business days after the mailing date, whether or not actually
received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a
receipt is available. In the case of Client, such notice will be
provided to the attention of the Office of the General Counsel at the
address of Client set forth in the first paragraph of this Agreement.
In the case of Cobalt, the notice address will be to the attention of
the Chief Executive Officer (with a copy to the Legal Department) at
the address for Cobalt set forth in the first paragraph of this
Agreement. Either Party may change the address for notice or any other
relevant notice information, including the recipient for notice and,
as applicable, such recipient's fax number or e-mail address by
written notice to the other Party.
9.10. NO WAIVER. The failure of either Party to insist upon or enforce
strict performance by the other Party of any provision of this
Agreement or to exercise any right under this Agreement will not be
construed as a waiver or relinquishment to any extent of such Party's
right to assert or rely upon any such provision or right in that or
any other instance; rather, the same will be and remain in full force
and effect.
9.11. NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement and
for a period of one year thereafter, neither Party will solicit any
employee of the other Party for the purpose of employment.
Solicitation that is general in nature and not directed to a specific
individual (such as, for example, employment advertising in a
newspaper of general circulation) will not constitute solicitation of
an employee for employment under this Agreement.
9.12. RETURN OF INFORMATION. Upon the expiration or termination of this
Agreement, each Party will, upon the written request of the other
Party, return or destroy (at the option of the Party receiving the
request) all confidential information, documents, manuals and other
materials specified the other Party.
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9.13. FORCE MAJEURE. To the extent that a party is not able to perform an
obligation under this Agreement due to fire, flood, a strike or other
labor interruption, war, riot, an act of God, an act of government,
insurrection, civil disturbance, or other cause beyond that party's
reasonable control, that party may not be liable for failing to
perform that obligation, except that this Section may not excuse any
party from the obligation to pay money that is owed.
9.14. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to
the transactions set forth herein. Neither Party will be bound by, and
each Party specifically objects to, any term, condition or other
provision which is different from or in addition to the provisions of
this Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing signed by that
Party's authorized representative.
9.15. AMENDMENT. No change, amendment or modification of any provision of
this Agreement will be valid unless set forth in a written instrument
signed by an authorized representative of the Party subject to
enforcement of such amendment.
9.16. FURTHER ASSURANCES. Each Party will take such action (including, but
not limited to, the execution, acknowledgment and delivery of
documents) as may reasonably be requested by any other Party for the
implementation or continuing performance of this Agreement.
9.17. ASSIGNMENT. Neither party may assign this Agreement or any right,
interest or benefit under this Agreement without the prior written
consent of the other Party. For purposes of this Agreement, a change
in control of a Party whether effected by merger, consolidation or
otherwise, will not constitute an assignment of this Agreement.
Subject to the foregoing, this Agreement will be fully binding upon,
inure to the benefit of and be enforceable by the Parties hereto and
their respective successors and assigns.
9.18. CONSTRUCTION; SEVERABILITY. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court with
jurisdiction over the Parties to this Agreement, (i) such provision
will be deemed to be restated to reflect as nearly as possible the
original intentions of the Parties in accordance with applicable law,
and (ii) the remaining terms, provisions, covenants and restrictions
of this Agreement will remain in full force and effect.
9.19. REMEDIES. Except where otherwise specified, the rights and remedies
granted to a Party under this Agreement are cumulative and in addition
to, and not in lieu of, any other rights or remedies which the Party
may possess at law or in equity.
9.20. APPLICABLE LAW; VENUE. Except as otherwise expressly provided herein,
this Agreement will be interpreted, construed and enforced in all
respects in accordance with the laws of the State of Michigan except
for its conflicts of laws principles.
9.21. EXPORT CONTROLS. Both Parties will adhere to all applicable laws,
regulations and rules relating to the export of technical data and
will not export or re-export any technical data, any products received
from the other Party or the direct product of such technical data to
any proscribed country listed in such applicable laws, regulations and
rules unless properly authorized.
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9.22. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which will be deemed an original and all of which together will
constitute one and the same document.
IN WITNESS WHEREOF, the Parties by their duly authorized representatives
have executed this Agreement as of the date first above written.
DAIMLERCHRYSLER CORPORATION THE COBALT GROUP, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X.X. Xxxx
------------------------------- -------------------------------
Xxxx X.X. Xxxx
Its: President President & CEO
EXHIBITS
Exhibit A - Specifications
Exhibit B - Support Guidelines
Exhibit C - Marketing
Exhibit D - Fees
Exhibit E - Forms of Warrants
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