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GOLD TERM SERVICES AGREEMENT
WELCOME to xxxxxxxxx.xxx inc.'s family of accredited motor vehicle dealers. This
Agreement is entered into by and between xxxxxxxxx.xxx inc., a Delaware
Corporation, with its principal place of business at 00000 XxxXxxxxx Xxxx.,
Xxxxxx, Xxxxxxxxxx 00000 ("ABT" or "Us" or "We" or "Our") and [LEGAL_NAME],
a(n) [INC_ST] [ENTITY] dba [DBA] with its principal place of business at
[ADDRESS], [CITY], [ST] [ZIP] ("Dealer" or "You" or "Your"). (ABT and
Dealer, each a "Party" hereunder are sometimes collectively referred to herein
as the "Parties.")
In consideration of the following mutual promises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ABT and Dealer, on their own behalf and on behalf of each of their
"d.b.a." operation(s) set forth in Appendix "A" attached hereto, intending to be
legally bound hereby, warrant, covenant and agree as follows:
I. OUR COMMITMENT TO YOU:
1. ABT promises to provide an Internet-based marketing program and Online
services to attract potential purchasers to http//xxx.xxxxxxxxx.xxx, (THE
"WEBSITE"); The term Purchase Request(s) as utilized in this Agreement,
refers to vehicle purchase or lease referral requests originating from the
Website. Nothing in this section shall be construed to include direct
vehicle orders or locating services.
2. ABT promises to use reasonable efforts to promptly forward to You
information regarding an identified potential purchaser whose purchase/lease
request originating through the Website from within Your assigned Primary
Market Area (PMA);
3. ABT promises to provide You with technical support during regular business
hours (Pacific Standard Time) to assist You and/or Your representative(s) in
the use of Our products and services. Except where otherwise informed by the
technical support staff at the time services are requested, this service is
included in your monthly subscription fees. As some services require
substantial time and effort to complete, ABT reserves the right to institute
supplemental charges for some services without prior notification;
4. We promise to provide consumers with assistance and support through Our
Customer WOW! Program, during normal business hours (Pacific Standard Time);
5. We agree, subject to individual state law restrictions, to continue to
develop, maintain, and enforce uniform Customer Service Standards that will
be implemented by Our subscribing dealers. To meet such a commitment, ABT
reserves the right to amend the Customer Service Standards from time to time
to modify, eliminate or impose additional Customer Service Standards as the
law or the changing business climate may dictate;
6. We promise to promptly notify Dealer in writing of any revisions to the
Customer Service Standards outlined herein. We will not impose amendments or
additions to Our Customer Service Standards unless they are applied to all
subscribing dealers within Your state;
7. We promise to use reasonable efforts to effectively communicate mutually
beneficial information relating to the ABT products and services provided
during the term of this Services;
8. ABT shall use its reasonable efforts to provide prompt transmission of data
to Dealer. Except as otherwise provided for in paragraph I (16) below, ABT
shall not be liable for any loss of data, delays or errors in transmitting
data or any loss of business due to electrical power source failure,
telephone transmission failure, unforeseen criminal acts of others, Natural
Disaster, acts of God, or any other conditions beyond our control.
9. We are responsible to maintain Our own equipment at Our sole expense and
will assume all responsibility for loss, damage, and maintenance to Our own
equipment;
10. We hereby grant to You a nonexclusive, non-transferable license that will
allow up to two simultaneous users to access Our proprietary Dealer Real
Time (DRT) information communications system to receive Purchase Requests;
11. NEW VEHICLE EXCLUSIVE PRIMARY MARKET ASSIGNMENT ("PMA"): You have been
assigned an exclusive market area for the subscribed new vehicle franchises
of [FRANCHISES]. This exclusive area effects new vehicle Purchase Requests
originating from Our Website only. The U.S. Postal Code description of this
PMA assignment is set forth in Exhibit "A" attached to this Agreement and
incorporated herein by this reference. ABT has sole and complete authority
to define Your PMA. Except in the case of a holdover as set forth in
paragraph 13 below, Your exclusive PMA will remain in effect for six (6)
months without the possibility of adjustment except by the mutual consent of
both . ABT reserves the right to conduct a market representation study to
determine the effectiveness of Your PMA during the term of this Agreement.
ABT in their sole discretion may use the results of these studies to among
other things, evaluate the market value of Your PMA and Your effectiveness
in servicing purchase requests from Your PMA. ABT reserves the right to
adjust Your PMA should the U.S. Postal service make any changes to the zip
codes represented or as necessary following a market study. ABT will provide
You with not less than thirty-(30) days written notice of the pending
change; ABT shall not be held liable for any unnoticed changes in Your PMA
as a result of U.S. Postal Service mandated zip code alteration(s).
12. TERM: This Agreement shall be for a term of twelve (12) months, unless
terminated earlier pursuant to section Section I (13) or II 20. Upon the
consent of ABT this Agreement may be extended at twelve (12) month
intervals, up to a maximum of five (5) successive terms . All renewal
confirmations and consent by ABT shall be evidenced in writing and delivered
to Dealer in accordance with section III 4. In the event services are
continued without written extension, this agreement and all non-conflicting
terms therein shall be deemed as a holdover contract and extended on
reoccurring a month-to-month basis until terminated by either party or by
breach of any part of this Agreement.
13. ABT MAY TERMINATE THIS AGREEMENT:
a) immediately for any breach of this Agreement by You which is not
cured within ten (10) days after You receive written notice of
the breach from Us;
b) immediately if any fees due ABT under this Agreement are unpaid
and outstanding more than thirty (30) days after ABT makes a
written request for payment;
c) immediately, if Dealer is guilty of willful misconduct in the
performance of its duties under this Agreement;
d) immediately upon a finding of Dealer's violation of state or
Federal law or conviction for such violation, whether
administratively, civilly, or criminally;
e) Immediately upon discovery of Dealers' sale or transfer of all or
substantially all of its dealership assets and/or management and
control.
f) immediately if an order for liquidation against You is entered
and not stayed in a bankruptcy proceeding;
g) upon sixty (60) days (30 days in the case of a holdover term)
written notice to You.
14. TAXES: We shall be responsible for paying all taxes imposed upon Us by
reason of the compensation paid to Us for providing services to You under
this Agreement.
15. INDEMNIFICATION: We promise to indemnify and hold harmless You and Your
subsidiaries and/or affiliates and Your respective members, managers,
directors, officers, employees, and agents against any and all losses,
liabilities, claims, awards, damages, judgments, settlements, and costs,
including fees and expenses, arising out of or related to Our negligence or
wrongful conduct, or arising out of any third-party claim. In the event We
are served with notification of action or suit against You, We will promptly
notify You of such claim.
We promise to defend at Our sole cost and expense, all such claims, actions,
lawsuits, or proceedings. In all events, You, in your sole discretion, shall
have the right to participate in the defense of any such action through
counsel of your own choosing at Your sole expense. In the event We are
served with notification of action or suit against You, We promise to
promptly notify You of such claim(s), and Dealer, in Your sole discretion,
shall defend all such actions or suits through counsel of Your own choosing.
II. YOUR COMMITMENT TO US:
1. At all times during the term of this Agreement, You and/or Your designated
representatives will abide by the terms of this Agreement and will perform
the duties as set forth herein, in accordance with the terms of this
Agreement.
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2. Your Dealer Principal and General Manager will actively participate in the
application, implementation, and operation of the ABT service system within
the dealership(s).
3. You understand and agree that You are responsible for all internal costs, if
any, associated with implementation of Our systems and services within Your
facilities.
4. You will dedicate at least one (1) key employee to be responsible for the
new vehicle program and at least one (1) key employee to be responsible for
the Certified Pre-Owned CyberStore program, if so elected. This person(s)
will be empowered to act as a liaison between ABT and Dealer. This person(s)
shall be referred to as the "ABT Manager." You promise to notify Us in
writing within ten (10) days with the identity of any newly designated ABT
Manager.
5. You will make Your ABT Manager(s) available to Us for training upon
reasonable request and notice, Your Dealer Principal and General Manager
agree to participate in at least one (1) ABT-U Basic Training program or
other similar program affiliated with ABT, offered by ABT either at the
Dealer's facility or at an offsite facility offered by ABT, within One
Hundred Twenty (120) days from the date of this Agreement. ABT shall reserve
for You, free of tuition costs, two (2) seats for ABT Manager Training and
one seat per Dealer Manager per franchise per year at an ABT-U Basic
Training course or other similar program affiliated with ABT. Additional
seats may be purchased at a cost of Two Thousand Five Hundred Dollars
($2,500.00) per seat. Dealer will ensure that each ABT Manager will attend
at least one ABT Phone Training Session prior to activating our services and
(1) ABT-U Basic training course or other similar program affiliated with ABT
within ninety (90) days from the date of this Agreement. Dealer understands
that ABT will not forward Purchase Requests under this Agreement until such
time as The ABT Manager Phone Training has been completed. ABT may suspend
Purchase Requests in the event all ABT-U Basic Training or other similar
program affiliated with ABT has not been completed by the qualified ABT
Manager(s), Dealer, and GM within the time frames stated herein. Until such
time as Dealer's compliance with this term has been confirmed by ABT, ABT is
hereby granted express authority and permission to re-route any Purchase
Requests received from Dealer's PMA to the nearest qualified ABT subscribing
dealer or in the alternative, a manufacturer for the vehicle type requested
with whom ABT has a business relationship for secondary marketing of the
subject vehicle make, without prior notice to Dealer.
6. You will set aside and designate a work area within Your dealership wherein
the ABT Manager(s) may perform his/her/their duties under this Agreement.
7. When working with each Purchase Requester provided to You through Our
service system, You will, at all times, act in good faith and in accordance
with state and federal laws.
8. You promise to reasonably participate in ABT's program offerings, including
any programs or services developed in the future.
9. CUSTOMER SERVICE STANDARDS:
A Dealer shall contact one hundred percent (100%) of the Potential
Purchasers within one (1) business day of Dealer's receipt of the
inquiry from ABT. ABT retains the right to re-route to another
accredited ABT dealer, at any time, any Purchase Requester(s) not
contacted by You, without prior notice; and
B Dealer's initial response shall be by telephone or e-mail and shall
confirm receipt of the Purchase Request. Dealer shall at the same
time, but in no event more than two (2) business days following
receipt of the Purchase Request, disclose all of the following
information (the "Dealer Information"):
a) the availability of the vehicle inquired about;
b) the manufacturer's suggested retail price (MSRP) of the
vehicle;
c) availability of all requested options;
d) the complete price that You will sell or lease the vehicle
to the Potential Purchaser, including all options
requested, preparation fees, destination fees and/or
advertising costs or charges not otherwise included in the
vehicle price;
e) all relevant financing terms and conditions which may
apply to the purchase or lease transaction requested;
f) all other terms, costs and conditions required by law to
be disclosed to prospective purchasers; and
g) ABT retains the right to re-route any Purchase Request(s)
to another accredited ABT Dealer in the event the
information called for in this section II(9)(B) are not
completely disclosed to a Purchase Requester(s).
C You agree to maintain an Overall Satisfaction Index (OSI) score as
measured by ABT at a level that is equal to or above the regional
average for comparable make dealers in Your PMA area. OSI is a
quarterly scoring method which measures and ranks performance by
comparing Dealer's average Purchase Request contact ratio, actual
sales completed from Purchase Requests provided, the number of
finance transactions completed through ABT, and customer service
ratings as provided by customer surveys, with those of other
similarly situated Dealers within a region. ABT in their sole
discretion may extend the term of this Gold Term Services Agreement
as specified in Section Section I(12) herein.
D You promise that all Dealer Information, including the price, that
You transmitted to a Potential Purchaser shall be valid and be
binding on Dealer for a period of seven (7) days after its
transmittal, provided the identified vehicle still remains available
for sale. If You relied on a manufacturer sponsored program when
quoting Your pricing, terms, incentives or availability of vehicles,
the time period in which the Dealer Information must be valid shall
coincide with the termination date of the Manufacturer's program or
seven (7) days, whichever is less. If the offer time is less than
seven (7) days for the above reason, You promise to include a
statement in the Dealer Information informing the Prospective
Purchaser of any reduction in the time period as set forth above. You
agree that any claim for damages or loss arising out of Your failure
to inform Potential Purchasers of all Dealer Information required by
this section shall be borne solely by You and not ABT.
E Unless otherwise agreed to in writing between the Parties hereto, You
promise to adopt and abide by revisions to any Customer Service
Standard no later than thirty (30) days following notification of a
change, even though they may require additional work or expense to
implement.
10. You promise to use reasonable efforts to effectively communicate to ABT
mutually beneficial information relating to the ABT products and services
provided during the term of this Services.
11. You agree to update, on a weekly basis, Your sales data in the Dealer Real
Time(R) System indicating the number and names of Potential Purchasers who
purchased or leased vehicles from You through Our system. You agree to
include in Your data, the number of those vehicles financed and amount
financed and such other related data as may from time to time be requested.
12. You agree to provide at Your own expense, dedicated access to an IBM
compatible personal computer with Internet access and related equipment that
meets or exceeds the minimum specifications published from time to time, by
ABT. You are solely responsible for ensuring that your computer system is in
compliance with all-relevant "Year 2000" specifications. Upon request, you
agree to provide Us with written assurances regarding your compliance with
this provision.
13. In addition to the personal computer outlined above, You agree to provide at
Your own expense, a dedicated workstation that is at a minimum, comprised of
a desk, a compatible printer, telephone, and other office supplies and
equipment as may be necessary to receive and properly implement at Your
dealership, the services contemplated by this Agreement.
14. You are responsible to maintain Your own equipment at Your sole expense and
will assume all responsibility for loss, damage, and maintenance to Your own
equipment.
15. You understand that ABT services are free of charge to a Purchase Requester.
You or any employee/agent of You, are expressly prohibited from representing
to any Purchase Requester, in any manner, either orally or in writing, the
existence of any charge or fee to be paid to You or to You on behalf of ABT
by reason of their using Our services to facilitate the Purchase or Lease of
any vehicle from You.
16. DEALER REAL TIME SYSTEM(U.S.XXX.PEND.) (DRT): You agree to actively utilize
the DRT information system in the daily implementation of the services
contemplated by this Agreement. As an express condition of the license
hereby granted to You by ABT, You are prohibited from reselling, loaning or
otherwise sharing the use of Your password with anyone not subject to this
contract.
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17. CERTIFIED PRE-OWNED CYBERSTORE(R) PARTICIPATION ELECTION (OPTIONAL): Your
participation in Our Pre-Owned vehicle program is optional and there is an
additional charge for this service. The terms and conditions of Your
participation in this program are set forth separately in Appendix "B"
attached to this Agreement and incorporated herein by this reference.
18. AFTERMARKET ACCESSORIES (OPTIONAL): Your participation in Our Aftermarket
Accessory program is optional and there is an additional charge. If you are
electing to participate in this program at this time, the terms and
conditions of Your participation in this program are set forth separately in
attached Appendix "C" to this Agreement and incorporated herein by this
reference.
19. COMPENSATION TO ABT: You promise to pay ABT a monetary fee for services
rendered as follows:
[SIGN_UP_FEE_WRITTEN] ([SIGN_UP_FEE_]) as an initial start-up fee which
You paid at the time of your original application for services. Of this
fee, [DRT_LIC_FEE_WRITTEN] ([DRT_LIC_FEE_]) has been allocated to the
DRT initial start-up fee. As additional ongoing consideration, You
agree to pay ABT the amount of [MONTHLY_FEE_WRITTEN] ([MONTHLY_FEE_])
as a total monthly Services fee, which is due and payable in advance on
the first day of every calendar month. The total monthly amount due
shall be allocated as follows: DRT Access Fee, [DRT_MONTHLY__];
Certified Pre-Owned CyberStore [UCC_MONTHLY_], and [MAKE_1],
[MAKE_1_MONTHLY_] [MAKE_2] [MAKE_2_MONTHLY_] [MAKE_3] [MAKE_3_MONTHLY_]
[MAKE_4] [MAKE_4_MONTHLY_] [MAKE_5] [MAKE_5_MONTHLY_] [MAKE__6]
[MAKE_6_MONTHLY_] [MAKE__7] [MAKE_7_MONTHLY_]
For the purpose of this agreement the term "services" shall mean the
forwarding of the Purchase Requests only by ABT to Dealer. Services are
deemed rendered at the time a Purchase Request is forwarded by ABT to
Dealer, and is not contingent upon an actual sale being consummated. The
amount of fees charged for your Services is determined by several factors,
including but not limited to your geographical location, the franchise make
of vehicle you offer through this Service, population concentrations, per
capita vehicle registrations for your PMA, and ABT's Seasonal Annual
Adjusted Rate (SAAR) percentage share of national retail vehicle sales for
the year in question. ABT, in Our sole discretion, may change the amount of
the fees charged to You upon thirty-(30) days prior written notice. The
parties agree however, that in no event shall more than two (2) increases be
made to the amount of the fee within the initial twelve-(12) month period.
ABT however, reserves the right to change the structure, method and/or basis
of the fee at any time during the term of this Agreement and any extensions
thereof including, without limitation, charging a fee per Purchase Request
or changing the structure to combine a flat service fee and a per Purchase
Request fee billing format. Any of the foregoing changes shall be effective
upon thirty-(30) days written notice to You and shall NOT require an
affirmative response or any further action by the parties. The parties
hereto agree that a change to the fee structure shall not count as a change
in the amount of the fee for the purposes of this section or section
II(20)(f) below. Payments received more than thirty (30) days following the
invoice date shall be subject to a late fee of $25.00 and shall incur
interest charges on the balance due at an annual percentage rate of eighteen
(18.0%) percent per annum. ABT reserves the right to suspend services for
any payment sixty-(60) days or more past due until the account is brought
current.
The first month's total fee and initial sign-up fee is due and payable
concurrently with the execution of this Agreement, receipt of which is
hereby acknowledged. All fees paid to ABT under this Agreement are deemed
earned upon the execution of this Agreement or delivery of services
whichever occurs first. All fees paid to ABT pursuant to this Agreement are
non-refundable regardless of circumstances.
20. DEALER MAY TERMINATE THIS AGREEMENT :
a) immediately, if an order for liquidation against ABT is entered
and not stayed in a bankruptcy proceeding;
b) immediately, if ABT is guilty of willful misconduct in the
performance of its duties under this Agreement; or
c) immediately for any breach of this Agreement by US which is not
cured within ten (10) days after You provide written notice of
the breach to Us; or
d) immediately upon a finding of ABT's violation of state or Federal
law or conviction for such violation, whether administratively,
civilly, or criminally;
e) upon thirty (30) days written notice in accordance with Section
Section III(4) of this Agreement following the effective date of
any adjustment in Dealer's PMA pursuant to Section Section I(11)
of this Agreement;
f) upon thirty (30) days written notice in accordance with Section
Section III (4) of this Agreement following the effective date of
any increase in Dealer's monthly Services fee pursuant to Section
Section II(19) of this Agreement;
g) for all new vehicle programs, for any reason on or after the last
day of the sixth (6) month from the date of this Agreement, upon
thirty (30) days written notice in accordance with Section
Section III(4) of this Agreement. Cancellation prior to the last
day of the sixth month of the subscription shall be accepted only
upon the written consent of ABT and full payment of the monthly
subscription fees charged from the date of cancellation to the
sixth month anniversary.
h) Certified Pre-Owned Cyberstore can be canceled at any time with
30 day written notice.
i) under any of the circumstances above, You shall remain
responsible for all fees due and payable up through the effective
date of the cancellation.
21. TAXES: You are solely responsible for paying all taxes (local, state and
federal) imposed as a result of the sale or lease of any vehicle(s). In the
event We are required to collect and/or pay any taxes by reason of a
consumer's purchase or lease of a vehicle from You through the services ABT
provides to You, You agree to promptly reimburse Us for those taxes We were
required to pay within ten (10) days following receipt of written
notification from ABT.
22. INDEMNIFICATION: You promise to indemnify and hold harmless ABT and Our
subsidiaries and/or affiliates and Our respective members, managers,
directors, officers, employees, and agents against any and all losses,
liabilities, claims, awards, damages, judgments, settlements, and costs,
including fees and expenses, arising out of or related to Your negligence or
wrongful conduct, or arising out of any third-party claim. In the event You
are served with notification of action or suit against ABT, You will
promptly notify ABT of such claim.
You promise to defend at Your sole cost and expense, all such claims,
actions, lawsuits, or proceedings. In all events, ABT, in Our sole
discretion, shall have the right to participate in the defense of any such
action through counsel of Our own choosing at Our sole expense. In the event
We are served with notification of action or suit against You, We promise to
promptly notify You of such claim(s), and You, in Your sole discretion,
shall defend all such actions or suits through counsel of Your own choosing.
III. GENERAL TERMS & CONDITIONS:
1. WARRANTY LIMITATION: ABT does not guarantee or warranty the performance of
the services provided hereunder including but not limited to the number of
Purchase Requests or vehicle sales/leases Dealer may receive from Our
service. You specifically waive all warranties, expressed or implied,
arising out of or in connection with the services to be provided by ABT
hereunder. Specifically excluded are all warranties, expressed or implied,
including but not limited to, merchantability and fitness for a particular
purpose. In no event shall ABT be liable for any loss of business profits or
for any consequential, incidental, punitive or similar damages, or for any
third-party claims of damages, even if advised of the possibility of such
damages.
2. NO WAIVER: The failures of either Party to exercise in any respect any right
provided for herein shall not be deemed a waiver of any right hereunder.
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3. INDEPENDENT CONTRACTOR ARRANGEMENT. The relationship created by this
Agreement between ABT and Dealer is intended to be and shall for all
purposes hereunder be considered as an independent contractor. Nothing
contained in this Agreement and/or any Appendices or Amendments hereto shall
be construed as intending, creating or constituting a franchise,
partnership, agency, or joint venture between ABT and Dealer.
4. NOTICES: All notices and requests in connection with this Agreement and/or
any Appendices and/or Amendments hereto shall be given or made upon the
respective Parties in writing signed by an officer or other dually
authorized agent of the corporation and shall be deemed given by any of the
following means 1) on the day deposited in the U.S. mail, postage prepaid,
and addressed as designated at the top of this Agreement, or to such address
as the Party to receive the notice or request so designates by written
notice to the other. 2) by Facsimile which shall be deemed received on the
day sent when a confirming notice from the sending facsimile machine has
been generated. Or 3) by overnight delivery service or courier, which shall
be deemed received on the day of physical delivery.
5. ASSIGNMENT: This Agreement and the rights and duties hereunder, including
any Appendices or Amendments hereto shall not be assignable by Dealer,
except upon written consent of ABT. This Agreement and the rights and duties
hereunder shall be assignable by ABT without restriction upon ten (10) days
written notice to Dealer.
6. PRESS RELEASES: Unless We agree in writing to the contrary, You are
prohibited from issuing any press release(s) or making any public
announcement(s) regarding Your business relationship with ABT or ABT's
services or programs provided to You. You may however, make references to
Your affiliation with xxxxxxxxx.xxx inc. in any advertisement published by
You for Your own benefit.
7. 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 brought
by Dealer against ABT shall be brought in a court of competent jurisdiction
within the state of California, in and for the county of Orange. Any dispute
or claim arising between the Parties hereto brought by ABT against Dealer
shall be brought in a court of competent jurisdiction within the state and
county in which the Dealership resides.
8. ATTORNEY FEES AND COSTS: In the event any action shall be instituted to
resolve a dispute between the Parties regarding this Agreement or to enforce
the terms of this Agreement, the prevailing Party in such action shall be
entitled to reasonable attorneys fees and costs incurred as a result. As
used in this section, the word "action" includes but is not limited to any
act requiring legal counsel involvement up to and including a formal
litigation filed in a court of competent jurisdiction.
9. CONFIDENTIALITY: Each of the Parties hereto, on behalf of themselves and
their employees, agree to keep all non-public information gained as a result
of the business dealings contemplated in this Agreement confidential. Each
Party may however, use such confidential information for their internal use
only to further their performance under this Agreement. Dealer understands
and agrees that the sale or unauthorized use or disclosure of any trade
secrets or other confidential information, including but not limited to
private information provided by Purchase Requester constitutes theft and
will greatly damage ABT and is prohibited unless consented to in writing by
the purchase requestor. Dealer shall not impart ABT's services or the
concept thereof to any person or entity other than Dealer's key employee(s)
without the previous written consent of ABT. ABT reserves the right to
transmit pertinent vehicle information to consumers making inquiries
concerning the terms of purchase and financing or leasing of motor vehicles.
Notwithstanding the foregoing, if either Party is required to produce any
such information by order of any government agency, court of competent
jurisdiction, or other regulatory body, it may, upon not less than five-(5)
days written notice to the other Party, release the required information.
10. TITLE TO SYSTEM, TRADEMARKS: To the extent permitted by law, the services to
be provided under this Agreement and any Appendices or Amendments are
proprietary to ABT, and title thereto remains in ABT. All proprietary title
and rights held by ABT extends to any extension of this Agreement and any
Appendices and Amendments, together with all copies thereof. All applicable
rights to patents, copyrights, trademarks, and trade secrets in the System
and in the name "Xxxxxxxxx.xxx" and its logo, now and in the future, belong
exclusively to ABT. Any and all trademarks and service marks associated with
ABT are and shall forever remain the exclusive property of ABT. Upon the
written consent of ABT, Dealer is permitted to use the trademark and service
xxxx for inclusion on business cards, and media advertisements that
communicate Your association with ABT. You may request, in writing, a copy
of ABT's logo, trademarks, artwork, and other printed material for use in
Your advertisements. This authority to use ABT's name, logo, and other
artwork is revocable at any time by ABT. ABT reserves the right to review
such uses and if determined to be abusive of this privilege, revoke Your
permission to use the trademark in the future.
11. CONTROLLING AGREEMENT: This Agreement and all Appendices and Amendments
hereto supersedes any and all Agreements, oral or written, between the
Parties, and contains all of the representations, covenants, and Agreements
between the Parties with respect to services described in this Agreement.
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/or any Appendices and/or Amendments hereto. No other
agreement(s), statement(s), or promise(s) not contained in this Agreement or
Appendices or Amendments hereto will be valid or binding.
12. MODIFICATIONS TO AGREEMENT: Except where otherwise set forth in this
Agreement, all modifications or amendments to this Agreement shall be in
writing, properly noticed in accordance with the notice provisions of this
Agreement. Any amendment, change or modification of this Agreement will be
effective only when in writing and signed by the Party to be charged. Such
signature shall not be unreasonably withheld by the Party to be charged and
shall be returned to the maker not more than ten (10) calendar days after
receipt. Except where otherwise reserved in this Agreement, including
without limitation, section II(19) hereof, the Parties agree that any
unilateral changes, amendments or modifications made by one Party are
invalid against the other Party unless ratified in writing by the Party to
be charged.
13. APPENDICES & AMENDMENTS: All Appendices and subsequent Amendments hereto are
incorporated into this Agreement by this reference as through fully set
forth herein.
14. SEVERABILITY: If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, such determination shall in no way alter
or impair the validity, legality, and enforceability of the remaining
provisions of this Agreement and any Appendices and/or Amendments
15. REQUISITE AUTHORITY: The undersigned hereby represents that he or she is
authorized on behalf of their respective corporations to enter into this
Agreement, and that each corporation is in good standing under the laws of
the state of their incorporation.
This Agreement is executed this ______day of _________________________, 2000.
Dealer: [LEGAL_NAME] xxxxxxxxx.xxx inc
By: _________________________________ By: _________________________________
Name: [AA_1ST_NAME] [AA_LAST_NAME] Name: Xxx Xxxxxxxxxx
Title: [AA_TITLE] Title: Chief Operating Officer
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APPENDIX "B"
CERTIFIED PRE-OWNED CYBERSTORE ELECTION
The undersigned Dealer elects to participate in the Certified Pre-Owned
CyberStore(R) services program and agrees to the following terms and conditions,
in addition to those set forth in the Gold Term Services Agreement:
1. MONTHLY SUBSCRIPTION FEE: You promise to pay ABT a monthly subscription fee
of [UCC_MONTHLY_] in addition to all other fees due under the terms of this
Agreement. All fees paid to ABT under this agreement are deemed earned upon the
execution of this agreement or delivery of services whichever occurs first. All
fees are due and payable on the first day of each calendar month. All fees paid
to ABT pursuant to this agreement are non-refundable regardless of
circumstances. ABT, in our sole discretion, may change the fee charged to you
upon thirty- (30) days written notice.
2. CUSTOMER SERVICE GUIDELINES
Dealer agrees to abide by Certified Pre-Owned CyberStore(R) Customer
Service Guidelines ("Guidelines"). ABT in their sole discretion may, from time
to time, amend the Guidelines, or impose additional Guidelines on thirty-(30)
days' notice to Dealer. Dealer acknowledges that following the Guidelines are
crucial to the value of ABT's services and agrees to follow them and any
amendments or additions to it even though they may require extra work or
expense. The Guidelines include the following:
(i) LIMITED WARRANTY: Dealer will establish and offer a limited
warranty ("warranty") all vehicles sold through the Certified Pre-Owned
CyberStore(R). Offering vehicles through the Certified Pre-Owned CyberStore(R)
on an "as-is" or "implied warranty only" basis is specifically prohibited. The
warranty coverage shall be in addition to any implied warranties prescribed by
the laws of the state in which You are located. In all cases Your limited
warranty offering shall not be less favorable to the purchaser than the law of
the jurisdiction where Dealer is located, and as a minimum will be for a
duration of not less than Three (3) months or 3,000 miles, whichever comes
first. The warranty will cover all mechanical and safety systems required by law
as well as any additional vehicle systems You specifically promise to cover in
Your warranty documentation. Dealer will provide each Purchase Requestor a
written document at the time of contracting that explains in detail, the terms
and conditions of Your warranty on the vehicle being purchased or leased. Dealer
will indemnify ABT for any third-party claims arising under any warranty.
Nothing in this section shall be interpreted as preventing dealer from
purchasing independent warranty coverage from a legitimate third party provider
as long as the terms and conditions shall meet or exceed the minimum
requirements set forth herein and on the ABT Website.
(ii) VEHICLE PRICING: Dealer will provide prices ("Posted Prices") and
vehicle information for display on the ABT Website of all vehicles posted to the
Certified Pre-Owned CyberStore(R). Dealer agrees to price vehicles competitively
within the market region in which they are located and to honor those prices as
required by law. Dealer agrees and assumes all responsibility for educating
dealership staff and sales personnel of the amount and duration of the
advertised prices. Dealer, and not ABT, shall be solely responsible for the
quality and accuracy of such information. ABT reserves the right to monitor the
quality of the photos and information submitted. Dealer shall promptly correct
any information or photo(s) deemed by ABT to be inaccurate or below necessary
quality levels set forth in this Agreement. If Dealer fails to correct such
photo image(s) or information within 72 hours of ABT's written notification
thereof, ABT may remove the photo image(s) and/or information from its Website.
(iii) VEHICLE RETURN POLICY: Except where expressly prohibited by law,
Dealer will offer, in writing, a return option allowing a purchaser to return a
vehicle to Dealer within 72 hours or 300 miles, whichever comes first. Provided
there has been no damage to the vehicle, Dealer will refund 100% of the amount
paid by the purchaser to the Dealer for the vehicle. In the event the vehicle is
returned damaged, where permitted by state law, Dealer may withhold from the
purchase price refund that amount that Dealer can prove was actually expended to
repair the vehicle. Any tax or licensing charges as a result of withholding
these funds shall be the sole responsibility of Dealer. Dealer will provide each
purchaser the name and phone number of the Dealer employee to contact to
exercise the repurchase option. Dealer will facilitate the purchaser's exercise
of the option in good faith, and will use its reasonable efforts to maximize the
purchaser's satisfaction with the repurchase experience. Dealer agrees to refund
all amounts due to the purchaser within ten (10) business days. Nothing in this
section shall prohibit the exchange of a vehicle for another vehicle of equal or
greater value provided dealer and Purchaser shall mutually agree to such
exchange.
(iv) OUT OF AREA REPAIRS: Dealer will participate in the emergency
repair system established by ABT. Nothing in this section shall be construed to
prohibit Dealer or Purchase Requestor from abiding by the terms and conditions
set forth in a third party provider warranty so long as terms and conditions of
the Warranty coverage do not fall below the minimum standards set forth under
this Agreement. Absent any third party coverage to the contrary, during the
warranty period, the emergency repair system allows a purchaser of a Certified
Pre-Owned CyberStore(R) vehicle who is more than 100 miles from their residence
and encounters a situation where the vehicle is not operational (i.e. cannot be
driven), to contact the nearest Certified Pre-Owned CyberStore(R) Dealer (the
"Repairing Dealer") and have the Repairing Dealer perform any warranted service
or repair. The Repairing Dealer or the Purchase Requestor must contact the
dealership where the purchaser acquired the vehicle (the "Selling Dealer") prior
to any repairs being performed and obtain authorization to repair the vehicle
from the Selling Dealer. For covered items other than those that disabled the
vehicle, the owner should return to the Selling Dealer. Where acceptable
independent third party warranty coverage is not available to the Purchase
Requestor, in the interest of customer satisfaction and improved inter-dealer
relations, the resulting repair charges should be calculated on a negotiated
basis between the involved dealers but in no event shall such costs to the
selling dealer exceed an internal basis of "cost plus 25%" for parts and labor
in all states, except for those states with higher mandates, in which states the
applicable law will govern. In the event of a "major" repair (i.e. engine or
transmission), the Selling Dealer will have the option of providing alternate
transportation to the customer, retrieving the affected unit, and repairing the
vehicle at the Selling Dealer's service location.
3. DIGITAL IMAGES
For each vehicle posted to the Certified PreOwned CyberStore(R), Dealer
shall publish one digital image together with relevant information in accordance
with this Agreement. Dealer may publish an unlimited number of used vehicle
images on the Certified Pre-Owned CyberStore(R). Dealer shall produce such
images in accordance with the specifications and guidelines set forth in
Paragraph 5 below. Placement of new vehicle images on the Certified Pre-Owned
CyberStore(R) is prohibited.
4. DIGITAL CAMERAS
At all time herein, Dealer shall provide and use a digital camera of the
make and type compatible with ABT's computerized image uploading
characteristics. In the event dealer does not own a digital camera, ABT shall
provide one for dealer's use. In circumstances where ABT has provided dealer
with a digital camera, if Dealer shall cancel this Agreement before the sixth
(6th) month anniversary and only in such event, Dealer shall promptly pay ABT
the sum of Six Hundred Dollars ($600.00) in exchange for such camera. ABT will
not accept a return of the camera in lieu of such payment unless the camera is
returned unused, with its original packaging intact.
5. SPECIFICATIONS AND GUIDELINES
All vehicles placed on the Certified Pre-Owned CyberStore(R) shall be no
more than seven (7) model years in age and have legitimate operating miles of
75,000 miles or less. All vehicle images shall (i) contain the vehicle as the
sole subject matter of the image, and shall not contain any people, images of
people, graphics, photos, artwork, overlays, signs, numbers, banners, balloons
or any form of visual advertisement, or any other image that would have the
effect of distracting from the vehicle; (ii) be side or angular photographs; and
(iii) be true and correct images of the vehicle, without retouching,
modification, manipulation, or enhancement. ABT reserves the right to eliminate,
without prior notice to Dealer, any vehicle image from the Certified Pre-Owned
CyberStore(R) that does not meet the above criteria. Dealer and not ABT shall be
solely responsible for any loss or damage to ABT or third parties resulting from
dealer's failure to comply with the terms of this section.
Accepted: [LEGAL_NAME]
Dealer Principal: _________________________________ Date: ______________________
[AA_1ST_NAME] [AA_LAST_NAME]
[AA_TITLE]
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ATTENTION DEALER: THIS IS A SUGGESTED SAMPLE USED VEHICLE BUYERS GUIDE FORM.
OTHER THAN THE DURATION AND MILEAGE REQUIREMENT, THE SELLING DEALER SETS
THE ACTUAL TERMS OF THE WARRANTY. PLEASE USE FTC APPROVED FORMS THAT
INCLUDE ALL STATE-MANDATED DISCLOSURES, ETC.
FRONT SIDE OF FORM
--------------------------------------------------------------------------------
LIMITED WARRANTY
___FULL X LIMITED WARRANTY.
The dealer will pay 100% of the labor and 100% of the parts for the covered
systems that fail during the warranty period. See reverse side of this form for
the explanation of warranty coverage, exclusions, and the dealer's repair
obligations.
SYSTEMS COVERED: Duration:
Engine Power steering 90 days or 3000 miles
Transmission Power brakes whichever occurs first.
Transaxle Air Conditioning
Drive line Electrical Rear end
*See below for systems and parts coverage.
TRAVEL REPAIR PROVISION. Absent independent third party warranty coverage to the
contrary, a vehicle purchased through the Certified Pre-Owned CyberStore(R) that
becomes inoperative when traveling over 100 miles from the originating dealer
will be eligible for repair at Xxxxxxxxx.xxx accredited dealerships. Travel
repair service will be available throughout the U.S. and Canada via the
Xxxxxxxxx.xxx accredited dealer network. On major repairs, the selling dealer
has the option of providing the customer with alternate transportation and
repairing the unit at the selling dealer's location. A vehicle that is
non-operational will be repaired sufficiently to return to the originating
dealer where additional repairs can be completed. To take advantage of the
Travel Repair Provision, customers may contact the originating dealer who will
direct them to the nearest Xxxxxxxxx.xxx accredited dealership, or inquire
through the Xxxxxxxxx.xxx Website for instructions and directions:
xxx.xxxxxxxxx.xxx. PLEASE NOTE: Appearance and convenience items will not be
covered by the Travel Repair Provision, nor will light bulbs, fuses, alignments,
adjustments, switches, oil filters, and other maintenance items. Failure to
strictly comply with the terms and conditions of this limited warranty will
cause this limited warranty to become null & void.
SERVICE CONTRACT. A service contract is available at an extra charge on this
vehicle. Ask Your Dealer for details as to coverage, deductible, price, and
exclusions.
PRE PURCHASE INSPECTION: Ask the dealer if You may have this vehicle inspected
by Your mechanic either on or off the lot.
_____________ ________ ___________________ _____ __________
vehicle make model dealer stock number year vin number
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BACK SIDE OF SUGGESTED SAMPLE FORM
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___FULL X LIMITED WARRANTY.
The dealer will pay 100% of the labor and 100% of the parts for the covered
systems that fail during the warranty period. The following is the entire
representation of coverage; no other systems or parts are suggested or implied.
State law may give you additional rights.
Systems Covered: Parts Covered:
Engine: All internally lubricated parts including timing chains, gears and
cover, timing belt, pulleys and cover, oil pump and gears, water pump, valve
covers, oil pan, manifolds, flywheel, harmonic balancer, engine mounts seals and
gaskets, engine block, cylinder heads and turbocharger housing if damaged by the
failure of internally lubricated parts.
Transmission/Transfer Case: All internally lubricated parts, torque converter,
vacuum modulator, transmission mounts, seals and gaskets. (Manual clutch
assembly and component parts are not covered)
Front wheel Drive: All internally lubricated parts, axle shafts, output shafts,
and constant velocity joints, front hub bearings, seals and gaskets.
Rear wheel Drive: All internally lubricated parts, propeller shafts, supports
and U-joints, drive shafts, axle shafts and bearings, seals and gaskets.
Brakes: Master cylinder, power booster, wheel cylinders, calipers, hydraulic
lines and fittings. (ABS component parts are not covered.)
Steering: Steering gear housing and all internal parts, power steering pump,
valve body and rack.
Electrical: Alternator, generator, and starter.
Air Conditioner Compressor, evaporator core, condenser.
ALL SYSTEMS AND PARTS LISTED ABOVE ARE COVERED 90 DAYS
FROM PURCHASE OR 3000 MILES, WHICHEVER OCCURS FIRST.
NOTE: This Agreement is exclusively between the selling dealer and the customer.
By accepting this Limited Warranty, Customer agrees to release xxxxxxxxx.xxx
inc. from all obligations with respect to the acquisition, service, or repair of
the covered vehicle. Customer's failure to strictly adhere to the terms and
conditions of this Limited Warranty shall result in loss of coverage.
_________________________________________ _______________________________
Xxxxxxxxx.xxx Accredited Dealer/Date Customer Signature/Date
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135 POINT CERTIFIED PRE-OWNED CYBERSTORE(R) VEHICLE CHECKLIST (SAMPLE)
====================================================================================================================================
ADDRESS/LOCATION:
====================================================================================================================================
YR: MAKE: MODEL: BODY TYPE: ENGINE: 4 6 8 CYL TRANS:
------------------------------------------------------------------------------------------------------------------------------------
VIN: COLOR: LICENSE PLATE NO: MILEAGE:
====================================================================================================================================
CIRCLE OPTIONS: WHEELS:
RADIO: AM/FM CASSETTE EQUALIZER CD CUSTOM:__________________________ ALLOY CUSTOM:_____________
------------------------------------------------------------------------------------------------------------------------------------
INTERIOR: VINYL CLOTH LEATHER AIR BAGS 1 OR 2 SUN ROOF AIR CONDITION: YES NO
------------------------------------------------------------------------------------------------------------------------------------
POWER: WINDOWS LOCKS SEATS STEERING BRAKES/ABS TILT CRUISE REAR DEFROSTER
------------------------------------------------------------------------------------------------------------------------------------
MAINTENANCE ITEMS: MECHANICAL AREA: [X] OK OR DESCRIBE DAMAGE CIRCLE ONE DOLLAR
====================================================================================================================================
ENGINE OIL LOW DIRTY BURNED LEAKS STARTING Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
TRANS FLUID LOW DIRTY BURNED LEAKS ENGINE Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
BRAKE FLUID LOW DIRTY BURNED LEAKS TRANSMISSION Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
COOLANT LOW XXXXX BURNED LEAKS DRIVE LINE Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
PWR STEERING LOW DIRTY BURNED LEAKS STEERING Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
BATTERY CORRODED LOW CHARGE BRAKES 50% LINING Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
BELTS SERPENTINE WORN CLIMATE CONTROL Repair $
Replace
------------------------------------------------------------------------------------------------------------------------------------
HOSES WORN SUSPENSION Repair $
Replace
====================================================================================================================================
BODY AREA: [X] OK OR DESCRIBE DAMAGE CIRCLE ONE DOLLAR ELECTRICAL AREA: [X] OK OR DESCRIBE DAMAGE CIRCLE ONE DOLLAR
====================================================================================================================================
WINDSHIELD Repair $ TAIL Repair $
Replace LIGHTS Replace
------------------------------------------------------------------------------------------------------------------------------------
HOOD/COWL Repair $ PARKING Repair $
Replace LIGHTS Replace
------------------------------------------------------------------------------------------------------------------------------------
GRILL Repair $ TURN Repair $
Replace SIGNALS Replace
------------------------------------------------------------------------------------------------------------------------------------
FRONT BUMPER Repair $ INTERIOR Repair $
Replace LIGHTS Replace
------------------------------------------------------------------------------------------------------------------------------------
REAR BUMPER Repair $ HORN Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------------------------
HEADLIGHT ASSY'S Repair $ POWER Repair $
Replace WINDOWS Replace
------------------------------------------------------------------------------------------------------------------------------------
RIGHT FENDER Repair $ POWER Repair $
Replace LOCKS Replace
------------------------------------------------------------------------------------------------------------------------------------
RIGHT SIDE GLASS Repair $ POWER Repair $
Replace SEATS Replace
------------------------------------------------------------------------------------------------------------------------------------
RIGHT DOORS Repair $ MEMORY Repair $
Replace SEAT Replace
------------------------------------------------------------------------------------------------------------------------------------
RIGHT QUARTER Repair $ POWER Repair $
Replace MIRROR Replace
------------------------------------------------------------------------------------------------------------------------------------
REAR GLASS Repair $ MEMORY Repair $
Replace MIRROR Replace
------------------------------------------------------------------------------------------------------------------------------------
DECK LID Repair $ RADIO Repair $
Replace AM/FM Replace
------------------------------------------------------------------------------------------------------------------------------------
LEFT QUARTER Repair $ TAPE Repair $
Replace PLAYER Replace
------------------------------------------------------------------------------------------------------------------------------------
LEFT DOORS Repair $ CD Repair $
Replace PLAYER Replace
------------------------------------------------------------------------------------------------------------------------------------
LEFT SIDE GLASS Repair $ CLOCK Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------------------------
LEFT FENDER Repair $ KEYLESS Repair $
Replace ENTRY Replace
------------------------------------------------------------------------------------------------------------------------------------
ROOF Repair $ ANTI-THEFT Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------------------------
WHEELS/COVERS Repair $ WINDSHIELD Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------------------------
TIRES 5/32" TREAD Repair $ WINDSHIELD Repair $
Replace WIPER Replace
------------------------------------------------------------------------------------------------------------------------------------
SPARE TIRE W/XXXX Repair $ HOOD Repair $
Replace RELEASE Replace
------------------------------------------------------------------------------------------------------------------------------------
FRONT/REAR SEATS Repair $ TRUNK Repair $
Replace RELEASE Replace
------------------------------------------------------------------------------------------------------------------------------------
INTERIOR/DASH Repair $ GAS Repair $
Replace DOOR Replace
------------------------------------------------------------------------------------------------------------------------------------
EXTERIOR PAINT Repair $ SPEEDOMETER Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------------------------
OTHER: Repair $ ODOMETER Repair $
Replace Replace
====================================================================================================================================
CIRCLE CHOICE: TOTAL: $
THIS VEHICLE ______ WAS/WAS NOT TEST DRIVEN OVERALL CONDITION: GOOD FAIR POOR
====================================================================================================================================
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