CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 AND 230.406 * INDICATES OMITTED
MATERIAL THAT IS THE SUBJECT OF
CONFIDENTIAL TREATMENT REQUEST
THAT IS FILED SEPARATELY WITH THE
COMMISSION
DATA DISTRIBUTION AGREEMENT
THIS AGREEMENT IS SUBJECT TO ARBITRATION.
This Agreement is made and entered into this 15th day of May, 1996, by
and between Newgen Results Corporation ("Newgen") with offices located at
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, and Universal
Computer Services, Inc. ("UCS"), Universal Computer Consulting, Ltd. ("UCC"),
and Ford Dealer Computer Services, Inc. ("FDCS"), (UCS, UCC, and FDCS
collectively referred to as "Supplier"), with offices located at 0000
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000.
WHEREAS, UCC, UCS and FDCS provide computer services and support to
automobile dealerships in the United States, for, respectively, the UCS In-House
Computer System and the FDCS In-Dealership Computer System;
WHEREAS, Newgen desires Supplier's assistance with its Service Results
program and other related services or products which are for the
merchandising and sale of service and parts business to vehicle owners;
WHEREAS, Newgen desires to obtain historical customer pay repair order
information, recurring customer pay repair order information, historical
warranty repair order information, recurring warranty repair order
information, historical vehicle service file information, historical vehicle
sales file information, newly sold vehicle information, and newly serviced
vehicle information, in tape format from the UCS In-House Computer System or
the FDCS In-Dealership Computer System of participating automobile dealers;
WHEREAS, Newgen and Supplier desire, by this Agreement to provide for the
terms and conditions under which Supplier will provide this information to
Newgen.
NOW, THEREFORE, In consideration of the mutual promises and obligations
contained in this Agreement, Newgen and Supplier agree to enter into this
Data Distribution Agreement on the following terms and conditions:
SECTION 1
DEFINITIONS
For the purpose of this Agreement, the following words will have the
meanings ascribed to them as follows:
1.1 ANALYSIS REPORT - Report generated by Supplier which shows the number of
different vehicles which visited a potential Dealer's service department
or were sold by Dealer during the [***], [***], [***], [***], [***], and
[***] months prior to Newgen's request for the report.
1.2 COMPUTER SYSTEM - Either the UCS In-House Computer System or the FDCS 7000
MP In-Dealership Computer System.
1.3 DEALER - Automobile dealer as designated by Newgen in accordance with
Section 4.6 as a participating dealer under this Agreement, who uses either
the UCS In-House Computer System or the FDCS In-Dealership Computer System.
1.4 DEALER AGREEMENT - Agreement between Dealer and either UCS, UCC, or FDCS
for support of Dealer's Computer System.
1.5 Dealer Data - The [***] information, the [***] information, the [***]
information, the [***] information, the [***] information, the [***]
information, the
* Confidential Treatment Requested
1
[***] information, and the [***] information contained on Dealer's
Computer System which Dealer has licensed to Supplier for the purposes
described in this Agreement.
1.6 FDCS IN-DEALERSHIP COMPUTER SYSTEM - The 7000 MP integrated computer system
for automobile dealerships supported by FDCS. This does not include any
DX-10, UNIX, or Rainbow computer systems which may be supported by FDCS.
1.7 NEWGEN'S REVENUE - The monthly gross revenue Newgen generates from all
services and products Newgen provides to Dealers and other entities each
month, including any special charges or surcharges, which were derived
from or used the Dealer Data provided to Newgen by Supplier.
1.8 UCS IN-HOUSE COMPUTER SYSTEM - The integrated computer system for
automobile dealerships supported by UCS.
SECTION 2
TITLE AND LICENSE OF DATA
2.1 TITLE. Except as a licensee of Dealer Data pursuant to the Dealer Agreements
and this Agreement, Supplier and Newgen each acknowledge that all rights, title
and interest in Dealer Data will remain vested in each individual Dealer.
2.2 LICENSE. Supplier hereby grants Newgen a personal, non-exclusive,
non-transferable sublicense to use that Dealer Data which has been provided
by Supplier to Newgen for the sole purpose of assisting Newgen in providing
to Dealers Newgen's Service Results program and other related services or
products which are for the merchandising and sale of service and parts
business to vehicle owners, pursuant to this Agreement.
SECTION 3
RESPONSIBILITIES OF SUPPLIER
3.1 DEALER DATA COPIES. Supplier will provide Newgen with a tape(s) of the
Dealer Data collected from each Dealer's Computer System once per week for all
Dealers. Supplier will provide the Dealer Data in the format specified in
Exhibit B.
3.2 ANALYSIS REPORTS. Upon request by Newgen, Supplier will provide to Newgen an
Analysis Report.
3.3 OPERATION CODES. Supplier will provide to Newgen, at no charge, on a one
time basis, the Dealer's operation codes. The specifications for the Dealer
operation codes are set forth in Exhibit B.
SECTION 4
RESPONSIBILITIES OF NEWGEN
4.1 AMENDMENT TO DEALER AGREEMENT. Newgen acknowledges that every Dealer will be
required to execute an amendment to Dealer's Agreement whereby Dealer grants to
Supplier a royalty-free license to use and distribute Dealer Data to Newgen for
the purpose of facilitating Newgen's internal use of the Dealer Data. Supplier
will provide to Newgen blank forms of said amendment which will incorporate the
provisions of Exhibit A. Supplier authorizes Newgen to present to Dealers said
form amendment for execution by Dealer. Newgen agrees to have every Dealer
execute said amendment. Upon receipt by Newgen of an executed amendment from a
Dealer, Newgen shall immediately forward the original of said executed amendment
to Supplier. Newgen agrees that said amendment may not be altered in any
manner, and that said amendment is not deemed effective and binding unless and
until it is executed by an officer of Supplier. Newgen acknowledges that they
are not granted any other authority by Supplier other than to present said
amendments for execution and the collection of said executed amendments.
* Confidential Treatment Requested
2
4.2 PAYMENT FOR DATA AND REPORTS. Newgen agrees to pay Supplier for the Dealer
Data and Analysis Reports as described in Section 5 of this Agreement.
4.3 EXPENSES. Newgen agrees to pay $[****] to Supplier within thirty (30)
days of the execution date of this Agreement, for the creation of the
software program(s) necessary to produce the Dealer Data tape. In addition,
if Newgen requires modifications to any such software program(s), Newgen
agrees to pay to Supplier any and all costs and expenses associated with such
modification. Newgen agrees to pay $[****] to Supplier within thirty (30)
days of the execution date of this Agreement for the creation of the software
program(s) necessary to produce the Analysis Report.
It is anticipated that the development time to create the software program(s)
necessary to produce the Dealer Data tape will be thirty (30) to sixty (60)
days. However, should Supplier be unable to create the software program(s)
necessary to produce the Dealer Data tape within one hundred twenty (120)
days, Supplier will refund to Newgen the $[****] amount Newgen paid to
Supplier pursuant to Section 4.2 above, and this Agreement will be terminated.
It is anticipated that the development time to create the software program(s)
necessary to produce the Analysis Report will be thirty (30) to sixty (60)
days. However, should Supplier be unable to create the software program(s)
necessary to produce the Analysis Report within one hundred twenty (120)
days, Supplier will refund to Newgen the $[****] Newgen paid to Supplier
pursuant to Section 4.2 above, and Supplier will have no further obligation
to produce any Analysis Reports. Newgen acknowledges that such a failure by
Supplier to create the software program(s) necessary to produce the Analysis
Report shall not constitute a default under this Agreement.
4.4 DEALER DATA TAPE FORMAT. The specifications for the Dealer Data are listed
in Exhibit B.
4.5 AUTHORIZATION FOR REPRESENTATIONS, WARRANTIES OR GUARANTEES. Newgen
shall refrain from making any representations, warranties or guarantees to
any third parties regarding the Dealer Data supplied by Supplier to Newgen,
except as specified herein or as expressly authorized in writing by Supplier,
such authorization not to be unreasonably withheld.
4.6 DEALER DESIGNATION. Newgen shall provide to Supplier, within thirty (30)
days of the execution of this Agreement, a written list of the Dealers which
Newgen wants to participate under this Agreement. Newgen shall give Supplier
written notice of any new Dealers whom Newgen wants to participate under this
Agreement. Newgen acknowledges that Supplier makes no guarantees on the length
of time it will take to set up a Dealer in the program.
Newgen shall provide to Supplier written notice of a Dealer's termination from
the program within ten (10) days after the Dealer's termination date from the
program.
4.7 INVOICING INFORMATION. In order that Supplier may generate an invoice to
Newgen, Newgen shall, at no charge, provide to Supplier no later than the 5th
calendar day of the month following the month to be invoiced, or within three
(3) calendar days of the date Newgen provides the [***] or hard copy of the
billing information to Ford Motor Company, whichever comes first, a copy of
the [***] or hard copy of the billing information which Newgen supplies to
Ford Motor Company to enable Ford Motor Company to xxxx Dealers for the
services and products Newgen provides Dealers. Newgen shall, at no charge to
Supplier, provide Supplier with data specifications and cooperate with
Supplier to assist Supplier in reading the [***]. If Supplier is unable to
read the [***] or if there is no [***], Newgen shall provide Supplier the
billing information in hard copy format.
For all non-Ford and non-Lincoln-Mercury Dealers, Newgen shall, at no charge,
provide to Supplier, no later than the 5th calendar day of the month
following the month to be invoiced, a [***] or hard copy of the billing
information of what Newgen invoiced Dealers for the services and products
Newgen provided the Dealers.
3
* Confidential Treatment Requested
Section 5
PRICES AND COMPENSATION
5.1 DEALER DATA CHARGE FOR [***]. Newgen agrees to pay Supplier a charge
per [***], [***], [***], and [***], included on each [***] Dealer Data [***]
provided to Newgen. This charge will be $[****] per [***], $[****] per [***],
$[****] per [***], and $[****] per [***] provided to Newgen. The maximum
Dealer Data charge for [***], as described in this Section 5.1, for any one
Dealer will not exceed $[****]. This $[****] limit will apply to each
individual dealership site owned by a [***], not to a group of dealership
sites owned by a Dealer. Where a Dealer owns more than [***] dealership site,
the maximum Dealer Data change for [***] will be as follows:
NUMBER OF DEALERSHIP MAXIMUM DEALER DATA
SITES OWNED BY A DEALER CHARGE FOR
[***] FOR THE DEALER
---------------------- ----------------------------------
[***] $ [****]
[***] $ [****]
[***] $ [****]
[***] $ [****]
[***] $ [****]
[***] $ [****]
[***] $ [****]
[***] $ [****] plus [***] for each
additional dealership
site over [***]
Supplier may increase this charge at any time after twelve (12) months from
the date of execution of this Agreement by an amount based on the percentage
rate of price increases for all goods and services as determined by the
Bureau of Labor Statistics of the U.S. Department of Labor (Consumer Price
Index).
5.2 PAYMENT OF DEALER DATA CHARGE FOR [***]. The Dealer Data charges for
[***] described in Section 5.1, for each new Dealer, may be paid by Newgen in
[***] payments. Each payment shall be in an amount equal to [***] of the
total Dealer Data charges for [***] for the new Dealer. Newgen will not be
charged interest on the unpaid portion of the Dealer Data charges for [***]
should Newgen elect to pay these charges as described herein. However, should
Newgen fail to pay the [***] payments in a timely manner, Newgen will be
charged interest as described in Section 5.5. Supplier will not invoice
Newgen for the Dealer Data charges for [***] prior to the date that the [***]
containing the [***] is shipped to Newgen.
5.3 DEALER DATA CHARGE FOR [***]. Newgen agrees to pay Supplier a charge
for [***], [***], [***], and [***]. The charge shall be based on the [***] of
[***] and [***], as defined in Section 1.7, during that month. The charge
shall be as follows:
[***] CHARGE
------------ ------
[***] [****]% of [***]
[***] [****]% of [***]
[***] [****]% of [***]
[***] [****]% of [***]
(for example, if there are [***], the Dealer Data Charge would be
[****]% of [***] for each [***].)
For new Dealers who start after the first of the month, Newgen will be
charged in accordance with this Section 5.3, based on [***] received by Newgen
from that new Dealer for the partial month.
* Confidential Treatment Requested
4
5.4 ANALYSIS REPORT CHARGE. Newgen agrees to pay Supplier a charge per
Analysis Report. This charge will be $[****] per Analysis Report produced.
Supplier may increase this charge at any time after twelve (12) months from
the date of execution of this Agreement by an amount based on the percentage
rate of price increases for all goods and services as determined by the
Bureau of Labor Statistics of the U.S. Department of Labor (Consumer Price
Index).
5.5 FREIGHT AND TAPE CHARGES. Newgen agrees to pay to Supplier a charge for
each physical data tape sent to Newgen at Supplier's then current rate.
Newgen shall be responsible for freight and insurance charges for all
shipments to or from Newgen, including but not limited to all shipments of
Dealer Data tapes.
5.6 INVOICING. Supplier will invoice Newgen each month for all amounts due
to Supplier under this Agreement. Newgen agrees to make payment to Supplier
within thirty (30) days of the date of the invoice. In the event that payment
is not received by the 30th day of the month following the month for which
the invoice is dated, Newgen will be in default of this Agreement and
Supplier may invoke any and all remedies available, in law or in equity.
Interest calculated at the lesser of 1 1/2% per month or the maximum
non-usurious rate currently permitted by law, will be charged to Newgen on
all invoices unpaid after thirty (30) days from the date of the invoice.
Section 6
DELIVERY
6.1 MANNER OF DELIVERY. Supplier will deliver all Dealer Data tapes to
Newgen utilizing the shipping service selected by Newgen. Newgen accepts the
risk of loss for the Dealer Data tapes upon shipment from Supplier's
location. Newgen shall be responsible for and pay all shipping and handling
costs for delivery of the Dealer Data tapes and reports from Supplier to
Newgen.
Section 7
WARRANTIES AND LIMITATION OF LIABILITY
7.1 WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE MADE BY
SUPPLIER WITH RESPECT TO THE DEALER DATA OR OTHER TRANSACTIONS OR SERVICES
CONTEMPLATED HEREIN. This Agreement states the entire obligation of Supplier
in connection with the license and provision of Dealer Data to Newgen.
7.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, SUPPLIER SHALL NOT UNDER ANY CIRCUMSTANCES, BE LIABLE TO
NEWGEN OR ITS DEALERS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF
SUPPLIER HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
FURTHERMORE, SUPPLIER SHALL NOT BE LIABLE TO NEWGEN OR ITS DEALERS FOR DAMAGE
OR LOSS OF ANY NATURE. WHATSOEVER, AND NEWGEN'S OR ITS DEALERS' SOLE AND
EXCLUSIVE REMEDY HEREUNDER SHALL BE THE RIGHT TO HAVE SUPPLIER REPLACE ANY
DEFECTIVE TAPE MEDIA CONTAINING THE DEALER DATA WHICH WAS PROVIDED TO NEWGEN.
IN ANY EVENT, SUPPLIER SHALL NOT BE LIABLE TO NEWGEN FOR ANY AMOUNT GREATER
THAN THE AMOUNT OF THE MONTHLY CHARGES PAID BY NEWGEN TO SUPPLIER FOR THE
MONTH IN WHICH THE LIABILITY AROSE.
Section 8
TAXES
8.1 Newgen agrees to pay all taxes, other than those taxes based on
Supplier's income, or provide appropriate exemptions, including personal
property, sales, use or excise taxes, which may be imposed by any taxing
authority as a result of Supplier's sublicense and distribution of the Dealer
Data to Newgen.
* Confidential Treatment Requested
5
Section 9
ARBITRATION
9.1 ARBITRATION. All disputes, claims, controversies and other matters in
question between the parties to this Agreement, arising out of, or relating
to this Agreement, or to the breach thereof, including any claim in which
either party is demanding monetary damages of any nature including
negligence, strict liability or intentional acts or omissions by either
party, and which cannot be resolved by the parties, shall be settled by
arbitration. Except as provided otherwise in this Section 9, the arbitration
shall be administered in accordance with the commercial arbitration rules of
the American Arbitration Association. Arbitrators shall be chosen from a
panel of persons with knowledge of electronic data processing industry
practices, contracts, and data processing systems. If the parties cannot
agree on arbitrators within fifteen (15) days of receipt of the arbitration
demand, then the arbitrators shall be chosen in accordance with the
commercial arbitration rules of the American Arbitration Association. The
arbitration proceeding will be held in Houston, Texas. In no event shall the
demand for arbitration be made more than one (1) year after the claim or cause
of action arises. The award of the arbitrator or arbitration panel shall be
final and binding, and there shall be no appeal therefrom. Judgment upon the
award rendered by the arbitrator or arbitration panel may be entered in any
court having jurisdiction. The Federal Arbitration Act (9 U.S.C. sections 1
et seq.) shall govern the interpretation and application of this Section 9.
Section 10
TERM AND TERMINATION
10.1. INITIAL TERM. The initial term of this Agreement is two (2) years
("Initial Term"), commencing on the date Supplier ships to Newgen the first
Dealer Data tape, such date to be conclusively determined by Supplier.
10.2 RENEWAL TERM(S). This Agreement shall be automatically renewed after
the Initial Term for consecutive periods of twelve (12) months each ("Renewal
Terms"), unless and until terminated by Supplier or Newgen delivering to the
other written notice of their intent to terminate the Agreement at least one
hundred twenty (120) days prior to the end of the Initial Term or any
subsequent Renewal Term.
10.3 TERMINATION OF AGREEMENT. If Newgen materially breaches any obligation
of Newgen under this Agreement, except any obligation to make payment to
Supplier, Newgen shall have thirty (30) days after receipt of written notice
of such default within which to cure such default, and if such default is not
cured within such period of time, then Supplier shall have the right without
further notice to terminate this Agreement. If Newgen fails to make any
payment to Supplier when due, Newgen shall have ten (10) days after receipt
of written notice of such payment default within which to cure such payment
default, and if such payment default is not cured within such period of time,
then Supplier shall have the right without further notice, at Supplier's
option, to suspend the delivery of Dealer Data until such payment default is
cured, or terminate this Agreement. If Supplier materially breaches any
obligation of Supplier under this Agreement, Supplier shall have thirty (30)
days after receipt of written notice of such default within which to cure
such default, and if such default is not cured within such period of time,
then Newgen shall have the right without further notice to terminate this
Agreement.
10.4 BANKRUPTCY. If either party becomes the subject of any voluntary
proceeding, or any involuntary proceeding which remains undismissed for sixty
(60) days, relating to bankruptcy, insolvency, liquidation, receivership,
composition of or assignment for the benefit of creditors ("Bankrupt Party"),
the other party may, at its option, terminate this Agreement upon giving
Bankrupt Party thirty (30) days written notice of its intention to terminate.
10.5 SURVIVAL OF OBLIGATIONS. The termination of this Agreement shall not
terminate, affect or impair any rights, obligations or liabilities of either
party hereto which may accrue prior to such termination. Supplier and Newgen
specifically agree that the obligations provided in the following sections:
Sections 2.1, 2.2, 4.4, 7.1, 7.2, 8.1, 9.1, 12.1, 13
shall remain in effect and survive termination.
6
SECTION 11
EXCUSE FOR NONPERFORMANCE
11.1 Supplier shall not be held responsible for any delay or failure to
perform hereunder where such delay or failure is due to any cause beyond
Supplier's direct control including, but not limited to, Acts of God, fire,
explosion, flood, strikes or other labor dispute, riot, communications or
power supply failure, delay in delivery, failure or malfunction of equipment,
lack of or inability to obtain Dealer Data from Dealers, or any other causes,
contingencies or circumstances which prevent or hinder performance hereunder
or make such performance hereunder impracticable.
SECTION 12
INDEMNIFICATION
12.1 Newgen agrees to indemnify, defend and hold Supplier, its officers,
directors, employees, and agents harmless from and against any and all
obligations, liabilities, costs, damages and expenses (including reasonable
attorney's fees) incurred or arising out of or relating to the provision of
Dealer Data by Supplier to Newgen and the use of such Dealer Data by Newgen.
12.2 Supplier agrees to indemnify, defend and hold Newgen, its officers,
directors, employees, and agents harmless from and against any and all
obligations, liabilities, costs, damages and expenses (including reasonable
attorney's fees) incurred or arising out of or relating to the use or
distribution of Dealer Data by Supplier.
12.3 A party seeking indemnification will give prompt written notice to the
party from whom such indemnification is sought (the "Indemnifying Party") of
each claim for indemnification hereunder, specifying the amount and nature of
the claim, and of any matter which in the opinion of the Indemnified Party is
likely to give rise to an indemnification claim under this Agreement.
Indemnified Party will have the right to participate at its own expense in
the defense of any such matter or in this settlement. The Indemnifying Party
shall use its best efforts consistent with sound business practice to defend
any claim or cause of action, and to mitigate the damages, liabilities,
losses and expenses giving this to any claim for indemnity pursuant to this
Section 12.
SECTION 13
MISCELLANEOUS
13.1 NONCOMPETITION. Once Newgen notifies Supplier, as set forth in Section
4.6, that a Dealer is participating under this Agreement. Supplier agrees it
will not solicit for a period of one hundred twenty (120) days, that Dealer
on any of Supplier's products or services which are for the merchandising and
sale of service and parts business to vehicle owners. However, should a
Dealer who is participating under this Agreement contact Supplier regarding
Supplier's products or services for the merchandising and sale of service and
parts business to vehicle owners, this section 13.1 shall not restrict
Supplier in any way from selling those products or services to that Dealer.
Newgen acknowledges that any Dealer which currently uses any of Supplier's
products or services for the merchandising and sale of service and parts
business to vehicle owners must fulfill its contractual commitments to
Supplier. Further, Newgen agrees that Newgen shall not allow a Dealer to
begin on the Newgen Results program prior to the termination of Dealer's
contract with Supplier.
13.2 BILLING AUDIT. Newgen shall allow Supplier, at Supplier's own expense,
to audit Newgen's billing and accounting records up to four (4) times per
year, provided that said audits will be during Newgen's normal business hours
and will not cause significant disruption to Newgen's business. Newgen shall
cooperate fully with Supplier throughout the audit, and provided to Supplier,
in a timely manner, any and all documents necessary to conduct such an audit.
13.3 PUBLICITY; USE OF TRADEMARKS. A party may not use the registered
trademarks, service marks, logo, name or any other proprietary designations of
the other party without that party's prior written consent, and shall submit
to the other party for prior approval any advertising or promotional
materials in which such trademarks, service marks or logos are to used, which
approval shall not unreasonably be withheld or delayed. Neither party will
issue or
7
permit to be issued any publicity, advertisement or other public statement
concerning the subject matter of this Agreement without the prior written
consent of the other party.
13.4 ASSIGNMENT. Neither party may assign any rights or delegate any duties
under this Agreement to any person or entity, except an affiliate of such
party, unless the other party has given its prior written consent such
consent not to be unreasonably withheld, and any attempt to do so without
that consent will be void. However, if either party sells all or
substantially all of its assets or a majority interest in its capital stock
to a non-affiliated company ("Purchasing Company"), then the other party will
allow the assignment of this Agreement to the Purchasing Company. This
Agreement will bind and inure to the benefit of the parties and their
respective successors and assigns as permitted in this Agreement.
13.5 RELATIONSHIP OF THE PARTIES. Supplier and Newgen agree that each party
shall undertake performing their responsibilities pursuant to this Agreement
as an independent contractor. Nothing contained herein or done pursuant
hereto shall make either party or its agents or employees legal
representative, agent or employee of the other for any purpose whatsoever.
Neither Supplier nor Newgen (nor any of their agents or employees) shall have
any right, power or authority to assume, create or incur, in writing or
otherwise, any expense, liability or obligation in the name, or in the
behalf, of the other party. Neither Supplier nor Newgen will state or imply
the contrary to any third party.
13.6 NOTICES. All notices, requests and approvals required by this
Agreements (i) shall be in writing, (ii) shall be addressed to the parties as
indicated below unless notified in writing of a change in address, and (iii)
shall be deemed to have been delivered either when personally delivered or,
if sent by mail, in which event it shall be sent postage prepaid, thereof
three (3) business days after mailing, or, if sent by telex, upon delivery
thereof. The addresses of the parties are as follows:
To Newgen: Newgen Results Corporation
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxxxx
Copy to: Newgen Results Corporation
000 Xx. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx X0X0X0
Attention: Xxxx Xxxxxx, Q.C.
To Supplier: Universal Computer Services, Inc.
0000 Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
Copy to: Universal Computer Services, Inc.
0000 Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Legal Department
13.7 HEADINGS. The Headings contained herein are for convenience of
reference only and are not intended to define, limit, expand, or describe the
scope or intent of any provision of this Agreement.
13.8 ENFORCEABILITY. This Agreement shall be governed by the laws of the
state of Texas. If a part of this Agreement is found invalid or unenforceable,
it will be enforced to the maximum extent permitted by law, and other parts
of this Agreement will remain in force.
13.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original instrument and all
of which together shall constitute the same instrument.
8
13.10 ENTIRE AGREEMENT, MODIFICATIONS AND CHANGES. This Agreement, together
with any exhibits attached hereto, constitutes the entire Agreement between
the parties relating to the subject matter herein. This Agreement may only be
amended by a written document signed by all parties.
13.11 ACTIONS. No action (including arbitration), regardless of form,
arising out of transactions under this Agreement, shall be brought by either
party more than one year after the cause of action occurred.
13.12 EXECUTION OF AGREEMENT. This Agreement will be effective and binding
only when accepted in Houston, Texas by Supplier, and obligations and
undertakings of each of the parties to this Agreement shall be performable in
Xxxxxx County, Texas.
13.13 NO WAIVER. No waiver will be implied from conduct or failure to
enforce rights. No waiver will be effective unless in a writing signed on
behalf of the party claimed to have waived.
13.14 INJUNCTIVE RELIEF. Either party may have injunctive, preliminary or
other equitable relief to remedy any actual or threatened unauthorized
disclosure of trade secrets or unauthorized use, copying, marketing,
distribution or sublicensing of trade secrets or other proprietary rights.
13.15 ATTORNEYS' FEES; COSTS. In any suit to enforce this Agreement, the
prevailing party will have the right to request the award of costs and
reasonable attorneys' fees and expenses, including costs, fees, and expenses
on appeal from the arbitrator(s).
13.16 TERMS OF THIS AGREEMENT. Neither party shall, without prior written
consent of the other party, such consent not to be unreasonably withheld,
disclose to any third party, the terms of this Agreement except as may be
necessary to establish or assert rights hereunder or as required by law.
Newgen, however, is permitted to disclose to Ford Motor Company, the pricing
terms of this Agreement. Further, Newgen agrees that it will not refer to or
cite, to any Dealer or other third party, Supplier as the cause of any
pricing increases, including any surcharges, Newgen institutes in its pricing
of products and services to Dealers.
13.17 RIGHTS OUTSIDE OF AGREEMENT. Nothing contained in this Agreement
shall be construed as limiting rights that any party may enjoy outside the
obligations set forth or created herein, or in any way preclude any party
from independent development or marketing of any product.
13.18 PARTIES. Wherever the reference is made in this Agreement to
"parties", this shall be understood to refer to Supplier as one party and
Newgen as the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of this 15th day of May 1996.
NEWGEN RESULTS CORPORATION UNIVERSAL COMPUTER SERVICES, INC.
00000 XXXX XXXXX XXXXX, XXXXX 000 6700 HOLLISTER
SAN DIEGO, CA 92130 XXXXXXX, XX 00000
By: /s/ Xxx Xxxxxx By:
---------------------------------- ------------------------------
Name: Xxx Xxxxxx Name:
--------------------------------- -----------------------------
Title: Vice President/CFO Title:
------------------------------- ----------------------------
UNIVERSAL COMPUTER CONSULTING, LTD. FORD DEALER COMPUTER SERVICES, INC.
BY U.C. CONSULTING, INC., GENERAL PARTNER 6700 HOLLISTER
0000 XXXXXXXXX XXXXXXX, XX 00000
XXXXXXX, XX 00000
By: By:
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Name: Name:
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Title: Title:
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9
EXHIBIT A
TERMS TO BE PRESENT IN AMENDMENT TO
DEALER AGREEMENT FOR LICENSE OF DEALER DATA
Dealer acknowledges that Dealer is participating in Newgen's service
reminder programs. This program is for the merchandising and sale of service
and parts business to vehicle owners.
Dealer grants to UCC [UCS] [FDCS] a royalty-free license to use and
distribute to Newgen historical customer pay repair order information, recurring
customer pay repair order information, historical warranty repair order
information, recurring warranty repair order information, historical vehicle
service file information, historical vehicle sales file information, newly sold
vehicle information, and newly serviced vehicle information ("Dealer Data")
contained on Dealer's Computer System.
Dealer acknowledges and agrees that UCC [UCS] [FDCS] shall not be liable to
Dealer in any way, including but not limited to actual, consequential or
incidental damages, for any use of the Dealer Data by Newgen, or any failure by
Newgen to use the Dealer Data or provide services to Dealer of which the Dealer
Data is a part.
Dealer hereby waives and releases all claims of any nature whatsoever
against UCC [UCS] [FDCS] and relieves UCC [UCS] [FDCS] of all liabilities due to
errors, omissions, and delays in the provision of the Dealer Data to Newgen.
This amendment contains the entire understanding between the parties and
will be effective and binding only when executed by an officer of UCC [UCS]
[FDCS] denoting its acceptance.
10
Exhibit B
DATA FROM UCS/FDCS SYSTEMS 5/9/96
SPECIFICATIONS
1. Line sequential ASCII file.
2. Files and fields to be fixed length, not variable.
3. Repair orders to be included are customer pay and warranty, no internal
repair orders.
4. Tape format is 8mm.
5. Newly added vehicle records and RO history data are to be sent weekly to
Newgen.
6. All alpha fields should be left justified, upper case and filled with
spaces to the right.
7. All numeric fields will be right justified and filled with zeros.
8. The only FDCS clients which data can be provided for are 7000 MPs.
9. On the initial data file, the last 2 years of vehicles sold and the last 2
years of vehicles serviced will be sent. This file is called the SOLD
VEHICLE AND SERVICE VEHICLE INFORMATION FILE. Thereafter, the only data
which will be sent in the SOLD VEHICLE AND SERVICE VEHICLE INFORMATION FILE
are;
A. Those vehicles (new and used) which have been sold in the last week or
newly serviced in the past week, and
B. Any previously sold or serviced vehicle which had a change to one
of the address fields.
These records, for both the initial SOLD VEHICLE AND SERVICE VEHICLE
INFORMATION FILE and the weekly SOLD VEHICLE AND SERVICE VEHICLE
INFORMATION FILE will be on a separate tape from the REPAIR ORDER HISTORY
FILE and the OPERATION CODE FILE.
10. The past 12 months REPAIR ORDER HISTORY FILE will be on a separate tape
from the current week's REPAIR ORDER HISTORY FILE. In some cases,
dealerships may not have 12 months of RO history, and in those situations,
UCS will provide whatever amount of history a dealership has.
11. All RO's closed in the past week will be sent. This file is called the
REPAIR ORDER HISTORY FILE. The weekly REPAIR ORDER HISTORY FILE records
will be on a separate tape from that of the weekly SOLD VEHICLE AND SERVICE
VEHICLE INFORMATION FILE.
12. The Operation Codes and Descriptions table will only be sent one time and
will be on a separate tape. This file is called the OPERATION CODE FILE.
The Operation Codes can be duplicated within the UCS/FDCS System, and
duplicate Operation Codes are only distinguishable by VIN prefixes.
Therefore, a table will be needed by Operation Code and VIN prefix, to
distinguish duplicate Operation Codes. (ie. Operation Code 200, may be an
alignment for a Taurus and an oil change for a Pickup.)
13. On the initial processing for each dealership, three tapes will be sent for
each dealership. They are;
SOLD VEHICLE AND SERVICE VEHICLE INFORMATION FILE (2 years)
REPAIR ORDER HISTORY FILE (last 12 months if available)
OPERATION CODE FILE
If 5 new dealerships begin in one week 15 tapes will be sent.
14. On every processing thereafter, only two tapes will be sent. They are;
SOLD VEHICLE AND SERVICE VEHICLE INFORMATION FILE (current week's)
REPAIR ORDER HISTORY FILE (current week's)
All dealerships' data (for the same type of data) will be on the same tape.
Meaning if 10 dealerships' data is being sent, 2 tapes will be sent, not
20, (assuming they all fit on two tapes).
15. Customer Pay RO's and Warranty RO's will each be on a separate record on
the initial REPAIR ORDER HISTORY FILE tape containing the 12 months of
history. Customer Pay RO's and Warranty RO's will each be contained in the
same record on the weekly REPAIR ORDER HISTORY FILE tape.
16. Because of the large amount of data stored and the difficulty involved in
any retroactive processing or collection of data, Newgen must inform UCS
within 3 days of the receipt of any Data tape, if an error or omission was
found.
SOLD VEHICLE AND SERVICE VEHICLE INFORMATION 5/9/96
Alpha-A
Numeric-N
Data in Field Both-A/N Length Occurs Comments
---------------------- ---------- ------- ------- ------------------------------
1. Dealer Number A/N 6 1 This is the six digit internal
UCS account number for the
dealership. UCS will provide
the dealerships' names and
corresponding account numbers.
2. Name (Customer) A/N 35 1 UCS to provide name exactly as
it appears in the field on the
dealerships' computer, usually
"Last, First". UCS is to do no
field editing.
3. Xxxxxxx 0 X/X 00 0
0. Xxxxxxx 2 X/X 00 0
0. Xxxx X/X 00 0
0. Xxxxx A 2 1
7. Zip A/N 9 1 Left justify, fill with spaces.
8. Customer Home N 10 1 Include area code. If no area
Phone code, first three
characters will be spaces.
9. Customer Work N 10 1 Include area code. If no area
Phone code, first three
characters will be spaces.
10. VIN Number A/N 17 1
11. [****] X/X 0 0
00. [****] X/X 0 0
00. [****] A 1 1 Either [***] or [***]
14. Car Year N 2 1 Year can come from the VIN
15. Car Make A/N 10 1 Make can come from the VIN
16. Car Model A/N 10 1 Make can come from the VIN
* Confidential Treatment Requested
SOLD VEHICLE AND SERVICE VEHICLE INFORMATION (cont) 5/9/96
Alpha-A
Numeric-N
Data in Field Both-A/N Length Occurs Comments
---------------------- ---------- ------- ------- ------------------------------
17. Car [****] X/X 00 0
00. Xx [****] N 6 1 Format is [****]
19. Sold Date N 6 1 Format is [****]
20. [****] Number N 3 1 [***] [****]
who [***] the car.
21. Original Miles N 7 1 Original mileage when sold.
22. [****] Policy A/N 10 1 [****], the first one listed.
23. [****] A/N 9 1 [****], the first one listed.
24. [****] Date A/N 6 1 [****], the format is [***].
25. Service Advisor A/N 8 1 Left justify, fill with spaces.
Number The permanent assigned advisor.
26. [****] Date N 6 1 Format is [****]
27. [***] N 7 1 As of the date the car was
Miles [***]. Right justify and
fill with zeros.
28. [****] Date N 6 1 [****]
29. Sales Type A/N 1 1 UPS field SALETYPE
30. [****] X/X 00 0
00. [****] X/X 0 0
00. [****] N 6 1 Format is [****]
33. [****] N 6 1 Format is [****]
* Confidential Treatment Requested
SOLD VEHICLE AND SERVICE VEHICLE INFORMATION (cont) 5/9/96
Alpha-A
Numeric-N
Data in Field Both-A/N Length Occurs Comments
---------------------- ---------- ------- ------- ------------------------------
34. [****] Name X/X 00 0
00. [****] Xxxx X/X 0 0
00. [****] Flag X/X 0 0
00. [****] Xxxx X/X 0 0
00. [****] X/X 0 0 [****]
00. [****] X/X 00 0 [****]
40. Record A/N 2 1 Can be a linefeed or carriage
Terminator return linefeed.
* Confidential Treatment Requested
Repair Order History File 5/9/96
-------------------------
Alpha-A
Numeric-N
Data in Field Both-A/N Length Occurs Comments
------------------ --------- ------ ------ -------------------------------
1. Dealer Number A/N 6 1 This is the six digit internal
UCS account number for the
dealership. UCS will provide
the dealerships' names and
corresponding account numbers.
2. VIN Number A/N 17 1
3. Repair Order A/N 8 1 Left justify, fill with spaces.
Number
4. Date RO was N 6 1 Format is
Closed YYMMDD(year,month,day)
5. Service Writer A/N 8 1 Left justify, fill with spaces.
Number
6. Car Miles N 6 1 As of the date the car was
serviced. Right justify and
fill with zeros.
7. Invoice Charges N 7 1 Format is DDDDDCC(dollar,cents)
for Customer Pay No decimal point. Right
justify and fill with zeros.
8. Invoice Charges N 7 1 Format is DDDDDCC(dollar,cents)
for Warranty No decimal point. Right
justify and fill with zeros.
9. Invoice Charges N 7 1 Format is DDDDDCC(dollar,cents)
(Total of Customer No decimal point. Right
Pay and Warranty) justify and fill with zeros.
10. Operation Codes A/N 16 40 The first 40 operation codes
Table used will be identified, along
with the following information.
10A. Operation Code A/N 15 1 Operation Code, left justify
10B. Customer Pay, A 1 1 C = Customer Pay, W = Warranty,
Warranty or
11. Record A/N 2 1 Can be a linefeed or carriage
Terminator return linefeed.
Operation Code File 5/9/96
-------------------
SPECIFICATIONS
--------------
1. Operation Codes will be on a separate tape from the repair order data.
2. The operation code file will only be submitted a single time.
3. The following format will be repeated for the number of operation codes
the dealership has.
Operation Code Format
----------------------
Alpha-A
Numeric-N
Data in Field Both-A/N Length Occurs Comments
----------------- --------- ------ ------ -------------------------------
1. Dealer Number A/N 6 1 This is the six digit UCS
account number for the
dealership.
2. Operation Codes A/N 15 1 The dealership's operation
code.
3. VIN Prefix Mask A/N 8 1 VIN prefixes which relate to
this operation code. Any dash
is a wild card.
4. Description A/N 40 1 The dealership's operation
code description.
5. Record A/N 2 1 Carriage return linefeed.
Terminator
