THIS AGREEMENT made effective the 24th day of January, 2001.
BETWEEN:
VARIEGATED VENTURES LTD. o/a XXXXXXXXXXXXX.XXX, INC. a corporation duly
incorporated with its head offices located in Xxxxxxx, Xxxxxxx, Xxxxxx
(Hereinafter referred to as "TheMotorpages")
- and -
ARI FINANCIAL SERVICES INC., a corporation duly incorporated pursuant
to the laws of the Dominion of Canada (Hereinafter referred to as "ARI
FINANCIAL SERVICES INC.")
SALES/SERVICE AGREEMENT
-----------------------
WHEREAS:
A. XxxXxxxxxxxxx.xxx has developed proprietary Internet technologies. The
Internet site xxx.xxxxxxxxxxxxx.xxx is a Business to Business Internet
automotive portal designed to enhance and promote the sale of "off
lease" vehicles between remarketer and an exclusive automotive Dealer
Network. The venue is XxxXxxxxxxxxx.xxx's Virtual Private Dealer
Network.
B. ARI FINANCIAL SERVICES INC. is a fleet lease company consisting of
off-lease and repossessed vehicles.
C. This Agreement contains the provision of computer-mediated information
services for ARI FINANCIAL SERVICES INC.'s to feature their used
vehicle inventories on the Internet site xxx.xxxxxxxxxxxxx.xxx for
resale through the Virtual Private Dealer Network and On-line
Tendering/Auction System.
D. This Agreement sets out the terms by which TheMotorpages and ARI
FINANCIAL SERVICES INC. will work co-operatively in the promotion and
sale of vehicles supplied by ARI FINANCIAL SERVICES INC. through the
Online Tendering/Auction System contained in XxxXxxxxxxxxx.xxx's
Virtual Private Dealer Network.
E. The parties agree to share and complement proprietary information
technologies whereby TheMotorpages shall customize its Internet
technology and develop the implementation of an Internet Marketing
Strategy for the ARI FINANCIAL SERVICES INC. used vehicle inventory.
F. The Parties wish to enter into a strategic alliance whereby they commit
to collaborate to providing automotive industry dealerships with
information on the availability of ARI FINANCIAL SERVICES INC. vehicles
to facilitate the auto purchase process through the utilization of the
On-line Tendering/Auction System.
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NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of these
provisions and the representations and agreements herein contained it is hereby
mutually agreed as follows:
1. Internet Services
-----------------
TheMotorpages shall provide to ARI FINANCIAL SERVICES INC. full access
to the Online Tendering/Auction System technology as contained in the Virtual
Private Dealer Network of the web site xxx.xxxxxxxxxxxxx.xxx. ARI FINANCIAL
SERVICES INC. shall be entitled to up-load its full remarketing automotive
inventory with no limitation as to quantity. Each inventory vehicle shall be
described by the provision of a digitally generated color image, conditioning
report and full vehicle particulars as to model, year, odometer reading,
specifications, options, minimum acceptable tender price (reserve bid) and all
other relevant information to allow a prospective purchaser to make an informed
decision with respect to the tender amount.
2. Term
----
If either such party wishes to cancel this agreement, the party must
provide a 90 day written notice of such cancellation. Until this Agreement is
canceled, ARI FINANCIAL SERVICES INC. shall place its auto inventory (as
required) with the virtual Private Dealer Network and TheMotorpages shall
provide ARI FINANCIAL SERVICES INC. with its services as contained in the
Virtual Private Dealer Network.
3. Exclusivity
-----------
ARI FINANCIAL SERVICES INC. agrees that during the term of this
Agreement it shall not utilize the services of any other Internet automotive
service portal for the listing or sale of its automotive inventories, with the
exception of its own Internet site.
4. Coding of Information
---------------------
ARI FINANCIAL SERVICES INC. shall be responsible for the accuracy and
completeness of the information and photos up-loaded to the Online
Tendering/Auction System for all vehicles and shall provide all required
personnel to complete the task of up-loading such vehicle information and
photos. In the event that ARI FINANCIAL SERVICES INC. requires the services of
TheMotorpages to assist with the process of up-loading vehicle information to
the Online Tendering/Auction System, then ARI FINANCIAL SERVICES INC. agrees to
compensate The Xxxxxxxxxx.xxx in accordance with its standard rate.
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5. Tendering/Auction Process - Ongoing
-----------------------------------
TheMotorpages shall conduct an ongoing tendering/auction process for
ARI FINANCIAL SERVICES INC. which shall commence each week on specified days and
shall close each week on specified days, in accordance with the needs of each
remarketing center. The vehicles that have not reached a bid greater than the
reserve bid can be reactivated on TheMotorpages' On-line Tendering/Auction
System the following week, for the tender/auction closing the following week,
with the bids from the previous week being voided and starting at the minimum
bid amount for each vehicle. Should ARI FINANCIAL SERVICES INC. choose not to
have these vehicles reactivated on the Virtual Private Dealer Network for the
next tendering/Auction process, they must notify TheMotorpages with 24 hours of
tender/auction closing.
6. Fees
----
ARI FINANCIAL SERVICES INC. shall pay to TheMotorpages a transaction
fee of $150 ($75.00 buyers fee/$75.00 sellers fee) for every vehicle that
receives a tender price offer equal to or in excess of the minimum acceptable
tender price (reserve bid) as set out for any particular vehicle. ARI FINANCIAL
SERVICES INC. shall be responsible to finalize the sale to the successful
purchaser, deliver the vehicle to the successful purchaser, and to collect the
$75 buyers fee from the successful purchaser. TheMotorpages shall have no right
or authoirty to negotiate any sale of ARI FINANCIAL SERVICES INC. vehicles and
shall not be involved in the transfer of funds or ownership of any such vehicle.
All information provided to TheMotorpages shall remain the property of ARI
FINANCIAL SERVICES INC. and TheMotorpages shall have no right to use any such
information for any purpose other than to effect the on-line tenderingAuction
process unless permission in writing is received from ARI FINANCIAL SERVICES
INC.
7. Payment of Fees
----------------
ARI FINANCIAL SERVICES INC. shall submit payment (buyer and sellers
fees) for any particular tendering process within fifteen days of closing of
tender.
8. Use of Trademark
----------------
TheMotorpages shall be entitled to use the ARI FINANCIAL SERVICE INC.
trademark on the Virtual Private Dealer Network and to create an "icon" with
such trademark. TheMotorpages shall not be entitled to use the ARI FINANCIAL
SERVICES INC. trademark for any other purpose whatsoever unless approval in
writing is provided to TheMotorpages by ARI FINANCIAL SERVICES INC.
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9. Confidentiality
---------------
a. It is understood that in the provision of these services TheMotorpages
may disclose confidential and proprietary information to ARI FINANCIAL
SERVICES INC. and ARI FINANCIAL SERVICES INC. may disclose confidential
information to TheMotorpages as per the following:
b. Confidential Information and Confidential Materials are proffered to
each of the parties as such. All Confidential Information and
Confidential Materials disclosed by the parties will thus be received
and held in confidence by the Recipient.
c. TheMotorpages will furnish to ARI FINANCIAL SERVICES INC. documentary
information and tangible items relating to the development of the
Online Tendering/Auction System to the extent necessary to permit ARI
FINANCIAL SERVICES INC. to determine the applicability of the Online
Tendering/Auction system to ARI FINANCIAL SERVICES INC.'s operations,
ARI FINANCIAL SERVICES INC.'s interest in negotiating this Agreement
and ARI FINANCIAL SERVICES INC.'s special Online Tendering/Auction
system development requirements.
d. ARI FINANCIAL SERVICES INC. will provide TheMotorpages with information
relating to its operations individual Online Tendering/Auction System
requirements. TheMotorpages shall return any such documentary
information to ARI FINANCIAL SERVICES INC.
e. The parties hereto will restrict disclosure of Confidential Information
and Confidential Materials to the minimum number of persons required to
enable each of them to further appraise its value, including relevant
members of their respective staff. However, each person to whom
disclosure is made shall, before the disclosure takes place, enter into
a confidentiality agreement.
f. The parties agree that the confidentiality and use provisions of this
Agreement shall not apply to any information which appears in printed
publications in integrated form or which otherwise is or becomes
generally known in the industry; any information which the Parties can
show by written records was in the Parties' possession prior to the
disclosure; or any information which comes into the Parties' possession
without covenants of secrecy from another party who is under no
obligation to maintain the confidentiality of the information.
g. The burden of proving these exceptions to the confidentiality and use
provisions of this Agreement resides with the recipient of such
information.
h. The parties shall return all Confidential Materials that it has
received from the other Party such as summaries, records, descriptions,
modifications, drawings and adaptations that the Parties have made from
the Confidential Materials and Information provided by the other.
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10. Breach of Contract
------------------
In the event that TheMotorpages or ARI FINANCIAL SERVICES INC. breaches
any of the terms or conditions of this Agreement, it is hereby acknowledged and
agreed that the parties shall be entitled to equitable relief, including
injunction of specific performance in addition to all other remedies available.
It is acknowledged that no failure by either of the parties in exercising any
right, power or privilege hereunder will operate as a waiver thereof, nor will
any single or partial exercise of any right, power or privilege preclude any
other or further exercise thereof.
11. Severability
------------
The invalidity of all or any part of any section of this Agreement
shall not render invalid the remainder of this Agreement or section and any such
provision of this Agreement that is so broad as to be unenforceable shall be
interpreted to be only so broad as is enforceable.
12. Headings
--------
The headings of sections, subsections and paragraphs of this Agreement
are inserted for convenience only and shall not control or effect the meaning of
construction of any of its provisions.
13. Expenses, Etc.
--------------
Except as otherwise provided for herein, whether or not the
transactions contemplated by this Agreement are consummated, each party hereto
shall pay his or its own expenses and the fees and expenses of their respective
counsel, accountants and other experts.
14. Waiver
------
No action taken pursuant to this Agreement, including any investigation
by or on behalf of any party, shall be deemed to constitute a waiver by the
party taking such action or compliance with any representation, warranty,
covenant or agreement contained herein, and the waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
15. Binding Effect, Benefit
-----------------------
This Agreement shall enure to the benefit of and shall be binding upon
the parties hereto and their respective heirs, personal representatives,
successors and assigns.
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16. Notices
-------
All notices, requests, demands and other communications which are
required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or transmitted
by telex or other telecommunication facility or on receipt after dispatch by
certified or registered first class mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made as follows:
if to XXXXXXXXXXXXX.XXX to:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
if to ARI FINANCIAL SERVICES INC. to:
0000 Xxxxxxx Xxxxxxx X. Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
17. Entire Agreement, Amendment
---------------------------
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof and may not be amended,
modified or terminated unless in a written instrument executed by the party or
parties sought to be bound.
18. Counterparts
------------
This Agreement may be executed in any number of counterparts, each of
which when executed, shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument.
19. Gender, Singular and Plural
---------------------------
Any reference in this Agreement in the masculine gender shall include
the feminine and neuter genders, and vice versa, as appropriate and any
reference in this Agreement in the singular shall mean the plural, and vice
versa, as appropriate.
20. Third Parties
-------------
Nothing in this Agreement, whether expressed or implied, is intended to
confer any rights or remedies on any person other than the parties to this
Agreement, nor is anything in this Agreement intended to relive or discharge the
obligation or liability of any third party, nor shall any provision give any
third party any right of subrogation or action against any party to this
Agreement.
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21. Governing Law
-------------
This Agreement shall be construed as to both validity and performance
and enforced in accordance with and governed by the laws of the Province of
Ontario and both parties agree to attorn to the jurisdiction of the Courts of
Ontario in the event of any dispute.
22. Currency
--------
All currencies referred to in this Agreement are stated in the lawful
currency of Canada,.
23. Waiver of Breach
----------------
The waiver of any breach of any provision of this Agreement or failure
to enforce any provisions hereof shall not operate or be construed as a waiver
of any subsequent breach by any party.
24. Disputes
--------
In any litigation or disputes arising out of this Agreement they
prevailing party will be entitled to recover all reasonable costs and attorney
fees, including costs and fees on appeal.
25. Rights Cumulative
-----------------
The provisions of this Agreement shall not be construed as limiting any
rights or remedies that either party may otherwise have under the applicable
law.
26. Independent Counsel
-------------------
Each party acknowledges that it has retained independent counsel to
review the terms of this Agreement and to advise as to the legal effect this
effect will have upon the respective rights and obligations arising hereunder.
27. Time of Essence
---------------
Time is of the Essence.
28. Assignment Clause
-----------------
This Agreement may not be assigned without the written consent of the
TheMotorpages.
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29. Force Majeure
-------------
Neither party hereto shall be responsible for the failure or delay in
performing any of its obligations due to causes beyond its control and these
causes shall include, but shall not be restricted to, fire, storm, flood,
earthquake, explosion, accident, acts of a public enemy, war, rebellion,
insurrection, sabotage, epidemic, labor disputes, transportation embargoes, or
acts of God, rules, regulations, orders or directives of any national government
or agency thereof, acts, rules, regulations, orders or directives of any
provincial or local government or agency thereof, or the order of any court of
competent jurisdiction.
30. Relationship of Parties
-----------------------
The parties to this Agreement are independent contractors, and nothing
herein shall be construed as creating or evidencing either a partnership or an
agency or any employment relationship between the parties or giving one party
the authority to contract for or bind the other.
XxxXxxxxxxxxx.xxx reserves the right to disclose this relationship to
its shareholders and pre-existing Dealer Members.
IN WITNESS WHEREOF the parties hereto have hereunto executed this
Agreement by the hands of their duly authorized officers as of the day and year
first above written.
XXXXXXXXXXXXX.XXX
Per: /s/ signature Dated: Jan 26/2001
----------------------------------
ARI FINANCIAL SERVICES INC.
Per: /s/ signature Dated: Jan 24, 2001
----------------------------------
