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EXHIBIT 10.10
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
MARKETING AGREEMENT
This Agreement is made as of February 8, 1996, by and between
Auto-By-Tel, LLC, a California limited liability company with its principal
place of business at 0000 X. Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx Xxx Xxx,
Xxxxxxxxxx 00000 (hereafter "ABT") and Xxxxxx Publications Corp., a New York
Corporation with its principal place of business at 000 X. Xxxxxxxxx Xxxx.,
Xxxxx 0000, Xx Xxxxxxx, Xxxxxxxxxx 00000 (hereafter "Edmund's").
RECITALS
WHEREAS, ABT is in the business of providing new vehicle purchase and
lease requests and other information to dealers of new automobiles and trucks;
WHEREAS, ABT obtains information for use by dealers of new automobiles
and trucks through Consumer inquiries on the Internet, Online services and other
sources;
WHEREAS, Edmund's is in the business of providing Consumers information
to aid them in their purchase or lease of new automobiles and trucks;
WHEREAS, Edmund's provides such information in print publications, on
the Internet and through other sources;
WHEREAS, ABT and Edmund's desire to enter into an agreement whereby
Edmund's will provide marketing information to ABT.
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the parties agree as follows:
A. Definitions
1. "Edmund's Site" shall mean that information and text reflected on the
Internet, and other online sources established by Edmund's for the purpose of
providing information to aid Consumers in their purchase or lease of new cars
and trucks. Despite the use of the singular "Site", "Edmund's Site" shall refer
to all Internet and online services used by Edmund's as of the date of this
Agreement and thereafter. However, "Edmund's Site" shall not include any
Internet or other online source established by a third party under license from
Edmund's.
2. "Consumer" shall mean those persons who use or otherwise obtain
information from "Edmund's Site."
3. "ABT Purchase Request" shall mean a request by a Consumer for
assistance with the purchase or lease of a new automobile or truck from whatever
source.
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[*] Confidential Treatment Requested
B. Consumer Request for the Purchase or Lease of Automobiles and Trucks
1. Term of Agreement
This agreement shall be deemed to have commenced on [*] and shall expire
on [*]; provided, however, that if Edmund's does not receive from ABT in
calendar year 1997 aggregate fees (including the amounts referred to in Section
C hereof and any additional amounts voluntarily paid by ABT) of at least [*],
Edmund's may terminate this Agreement on not less than 10 days' prior written
notice given to ABT on or before [*]. This Agreement may be terminated prior to
such dates only (i) by Edmund's in the event that ABT does not pay the fees due
Edmund's for ABT Purchase Requests originated by Edmund's within 30 days of the
date billed for such ABT Purchase Requests, in the event that ABT does not pay
the amounts required by Section C hereof within 60 days of ABT's receipt of such
origination fees, or in the event ABT breaches any of the other terms of this
Agreement, and (ii) by ABT in the event that Edmund's breaches any of the terms
of this Agreement, or if Edmund's terminates the "Edmund's Site." Nothing herein
shall preclude Edmund's from discontinuing the "Edmund's Site," any of its
publications, or its entire business, or shall give ABT any rights against
Edmund's hereunder as a result of any such discontinuation.
2. Pricing Information
The "Edmund's Site" shall, so long as it is maintained by Edmund's,
reflect pricing information in the United States for the sale of automobiles and
trucks which is current and accurate.
3. ABT Information
[*]
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[*] Confidential Treatment Requested
4. Fees to be Paid to Edmund's
a. ABT shall pay Edmund's [*] for each ABT Purchase Request
which is received directly from Edmund's either from the "Edmund's Site" or
otherwise. If the total number of ABT Purchase Requests exceeds [*] in any
calendar year, ABT shall pay Edmund's [*] for each ABT Purchase Request in
excess of [*] for such year. However, for purposes of calculating the amount
of fees to be paid to Edmund's, only one ABT Purchase Request shall be counted
for any one Consumer within a [*] day period.
b. ABT shall pay Edmund's any fees due it pursuant to this
paragraph within 30 days of receipt of billing.
c. All ABT Purchase Requests and information contained therein
received from Edmund's Site shall be the sole property of ABT.
5. Additional Advertisements
In its print publications and CD ROM products, Edmund's shall
advertise ABT's services in a form and content approved by ABT. In these
advertisements, Edmund's shall be permitted to place Edmund's' address for the
"Edmund's Site."
C. Financing of Automobiles
1. Edmund's shall recommend an entity later identified by ABT for
automobile and truck financing as ABT's source of automobile and truck financing
in a form and content approved by ABT, provided that this financing program is
in full operation within [*] days of the signing of this Agreement.
2. ABT shall pay Edmund's [*] of the net origination fee which it
received as a result of referrals made or loans originated by Consumers from ABT
Purchase Requests received from Edmund's.
D. Non-competition and Confidentiality
1. Confidentiality
Edmund's agrees to keep confidential and not disclose to any
third party, without ABT's prior written consent, any confidential or
proprietary information in its possession with respect to ABT's services.
Edmund's will give notice of such covenant to its employees and require its
employees to comply with such covenant. Such covenant shall not apply to any
such information that is or becomes generally available to third parties other
than as a result of its disclosure by Edmund's or its employees, which was
available to Edmund's prior to its disclosure to Edmund's by ABT, or which is
made available to Edmund's by a source other than ABT and its representatives.
If Edmund's is requested to produce any of such confidential or
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proprietary information by order of any governmental agency, court or civil
process, Edmund's may, upon less than five days' written notice to ABT, release
such information.
2. Non-Competition
For the term of this Agreement and for two years following the
termination of this Agreement pursuant to paragraph A.1., neither Edmund's nor
its subsidiaries or affiliates or their respective directors, officers,
employees or agents shall directly engage in the business of providing new
vehicle purchase and lease requests to dealers of new automobiles and trucks.
However, following such termination of this Agreement Edmund's shall be entitled
to refer Consumers to other third parties who, like ABT, are engaged in such
business, and following such termination Edmund's shall be entitled to advertise
other automotive broker services.
3. Indemnification
Edmund's agrees to indemnify and hold harmless ABT and its subsidiaries
and affiliates and their respective directors, members, managers, officers,
employees and agents against any and all losses, liabilities, claims, awards,
damages, judgments, settlements and costs, (including attorneys' fees and
expenses) arising out of or relating to any third party claim arising from the
negligent or wrongful acts or omissions of Edmund's, its subsidiaries and
affiliates, and their respective directors, officers, employees and agents.
ABT agrees to indemnify and hold harmless Edmund's and its subsidiaries
and affiliates and their respective directors, officers, employees and agents
against any and all losses, liabilities, claims, awards, damages, judgments,
settlements and costs, (including attorneys' fees and expenses) arising out of
or relating to any third party claim arising from the negligent or wrongful acts
or omissions of ABT, its subsidiaries and affiliates, and their respective
directors, members, managers, officers, employees and agents. In addition, ABT
hereby assigns to Edmund's any benefits of any indemnification or similar
agreement or arrangement that ABT has received, or hereafter receives, from
third parties with whom ABT does business (such as dealers), to the extent that
such indemnification does not compromise ABT's rights of indemnification from
such third parties.
4. Trade Marks and Service Marks
Any and all trade marks and service marks associated with ABT are and
shall remain the exclusive property of ABT. If during the term of this Agreement
a trade xxxx registration is filed by ABT, all rights belong to ABT who shall
bear the cost of such registration. Edmund's is permitted to use the trade xxxx
and service xxxx of ABT only as set forth herein or only as authorized in
writing by ABT.
E. Miscellaneous
1. Independent Parties
The relationship between ABT and Edmund's is, and at all times
shall
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remain, solely that of independent parties, and shall not be, or construed to be
a joint venture, partnership, fiduciary, or other relationship of any nature.
2. Notices
All notices and requests in connection with this Agreement shall
be given or made upon the respective parties in writing, and shall be deemed as
given on the day it is deposited in the U.S. Mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement, or such address as the party to receive the notice or request so
designates by written notice to the other.
3. Headings
The titles and captions of the various paragraphs and
subparagraphs of this Agreement are inserted for convenience only, and are not a
part of this Agreement, nor shall they be deemed in any manner to modify,
explain, enlarge or restrict any of the provisions of this Agreement.
4. Severability
The invalidity of any of the provisions or clauses in this
Agreement shall not affect any remaining provisions, clauses, or applications
which can be given effect without the invalid provision or clause. To this end,
the provisions of this Agreement are declared to be severable.
5. Waivers
A waiver of either party to exercise in any respect any right
provided for herein, including the termination of this Agreement, shall not be
deemed a waiver of any right hereunder.
6. Governing Law and Jurisdiction
This Agreement and the performance hereunder shall be governed
and construed in accordance with the laws of the State of California. Any
dispute or claim arising between the parties hereto, shall be brought in a court
of competent jurisdiction located in the State of California and the parties
hereto agree to jurisdiction in California.
7. Attorney's Fees
In the event any litigation is initiated by any of the parties to
enforce any of the provisions of this Agreement, the prevailing party shall be
entitled to receive from the other party its reasonable attorney's fees incurred
in such litigation.
8. Entire Agreement
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This Agreement may be modified, amended or waived in any respect
only by a written instrument signed by all the parties hereof. This Agreement
supersedes any and all agreements, either oral or written, between the parties
and contains all of the representations, covenants, and agreements between the
parties hereto. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise have
been made by any party, or anyone acting on behalf of any party which are not
contained in this Agreement and that neither party enters this Agreement in
reliance upon a later agreement regarding an ABT Associated Financing Program.
9. Authority
The parties hereto have authorized the signatories identified
below to enter this Agreement on behalf of Edmund's and ABT, respectively.
XXXXXX PUBLICATIONS CORP. AUTO-BY-TEL, LLC
a New York Corporation a California limited liability company
By: /s/ [SIG] By: /s/ [SIG]
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Title: Chairman Title: President
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