Exhibit 10.18
SERVICES AGREEMENT
Agreement #
This Services Agreement (the "Agreement") between Xxxxxxx.xxx, Inc.
("VENDOR"), a California corporation, whose address is 0000 Xxx Xxxxxx, Xxxxx
Xxxxx, XX 00000, and State Farm Mutual Automobile Insurance Company, an Illinois
corporation, acting on its behalf and that of its subsidiaries and affiliates
("STATE FARM"), a company having its corporate headquarters at Xxx Xxxxx Xxxx
Xxxxx, Xxxxxxxxxxx, XX 00000, shall be effective according to its terms as of
the "Effective Date" (as defined on the signature page attached hereto). Any
capitalized terms not defined in the body of this Agreement are defined in
Exhibit "A" attached hereto.
W I T N E S E T H
WHEREAS, VENDOR has developed and operates an Internet WWW site for the
purpose of promoting, marketing, and facilitating the sale of cars and car
insurance; and
WHEREAS, certain services and participation in VENDOR's services are
requested by STATE FARM; and
WHEREAS, VENDOR has agreed to provide such services and participation in
accordance with the terms and conditions of the Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. VENDOR agrees to provide those services to STATE FARM as set forth in
Exhibit A, attached hereto and incorporated here in (the "Services"). In
exchange for the Services, STATE FARM shall pay to VENDOR the fees as are set
forth in Exhibit A.
Bills for all other fees described in Exhibit A are due and payable by
STATE FARM within thirty (30) days of the receipt of an accurate invoice by
STATE FARM.
2. Each party shall keep confidential, and not use for any purpose except to
perform Its respective obligations pursuant to this Agreement, and proprietary,
trade secret, business, copyright, patent or other such information of the other
party, or of any of its vendors, suppliers, independent contractor insurance
agents or customers, which it learns as the result of carrying out its
obligations thereunder ("Confidential Information"); provided, however, that
Confidential Information does not include information that: (a) receiving party
can demonstrate was known by receiving party prior to the disclosure thereof by
disclosing party; (b) properly came into the possession of receiving party from
a third party which was not under any obligation to maintain the confidentiality
of such information; (c) has become part of the public domain through no act or
fault on the part of the receiving party in breach of this Agreement; or (d)
receiving party can demonstrate was independently developed by or for receiving
party without the use of Confidential
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
Information. Each party expressly further agrees that it shall return any such
information and copies thereof to the other party upon completion of its duties
under this Agreement, or upon the other party's request. The terms of this
Section 2 shall survive the termination of this Agreement. The foregoing
prohibition on non-disclosure shall not apply to the extent that disclosure of
Confidential Information to proper legal and regulatory authorities is required
by law or regulation. In the event the receiving party receives a request to
disclose all or any part of the Confidential Information under the terms of a
valid subpoena or order issued by a court of competent jurisdiction or by a
governmental body, the receiving party agrees to: (a) notify the disclosing
party promptly of such request; (b) provide the disclosing party with reasonable
assistance in obtaining an order or other reliable assurance that confidential
treatment will be accorded to such portion of the Confidential Information that
the disclosing party so designates. The parties acknowledge that a breach of the
Section 2 would cause irreparable harm to the disclosing party, which would not
have an adequate remedy at law, and agree that such party may seek equitable
relief.
3. VENDOR represents and warrants that it has the ability an expertise to
perform its responsibilities hereunder and shall perform the Services in a
professional and workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, VENDOR MAKES NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, AS TO THE
SERVICES, MATERIALS, OR INFORMATION PROVIDED HEREUNDER, AND HEREBY EXPRESSLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE.
4. The parties expressly agree that VENDOR shall be an independent contractor
for all purposes in the performance of this Agreement and that none of its
employees or agents shall be considered an employee of STATE FARM for any
purpose.
5. The parties agree the HTML content of STATE FARM's carrier screen and
carrier information shall be developed specifically for STATE FARM by VENDOR and
shall be considered a "Work Made for Hire". Such content shall be the sole and
absolute property of STATE FARM and STATE FARM reserves all rights of ownership,
including but not limited to copyright and other proprietary rights. Except for
STATE FARM's ownership of the content of the foregoing carrier screen and
carrier information, the parties agree VENDOR shall acquire no ownership or
intellectual property rights in the form or content of carrier screen and/or
carrier information by virtue of its posting on the VENDOR's site, nor shall
STATE FARM acquire any rights in the form or content of the VENDOR's site or any
information posted thereon other than STATE FARM's own information.
6. a. VENDOR expressly agrees, anything herein to the contrary
notwithstanding, that it shall indemnify, defend, and hold STATE FARM fully
harmless against any loss, damages, claims or expenses of any kind whatsoever,
including costs and reasonable attorneys' fees, which STATE FARM shall incur to
the extent caused by
or arising from the negligent acts of, or negligent failure to act by VENDOR,
its employees or agents in the performance of this Agreement.
b. STATE FARM expressly agrees, anything herein to the contrary
notwithstanding, that it shall indemnify, defend and hold VENDOR fully harmless
against any loss, damages, claims of expenses of any kind whatsoever, including
costs and reasonable attorneys' fees, which VENDOR shall incur to the extent
caused by or arising from the negligent acts of, or negligent failure to act by
STATE FARM or its employees or agents in the performance of this Agreement.
c. In the event of an indemnifiable event, either party shall give prompt
notice of any such claim to the other party, and the indemnifying party shall
have the right and obligation to control and direct the investigation, defense
and settlement of each such claim. The indemnified party shall reasonably
cooperate in connection with the foregoing. The rights and obligations of the
parties pursuant to this Section 6 shall survive any termination or expiration
of this Agreement.
7. The term of this Agreement shall be as set forth in Exhibit A. If either
party neglects or fails to perform any of its material obligations under this
Agreement and such failure continues for a period excess of thirty (30) days
after written notice (containing a reasonably detailed statement of the alleged
failure to perform) thereof from the non-breaching party, the non-breaching
party shall have the right to terminate this Agreement immediately upon further
written notice to the breaching party. During any notice and cure period, both
parties shall continue to be bound by all the terms and conditions of this
Agreement.
8. Anything in the Agreement to the contrary notwithstanding, neither party may
delegate or assign its rights or duties under the Agreement to any other entity,
including an entity which affiliates or merges with or acquires such party,
except when such delegation or assignment is approved in advance by the other
party in writing, which approval shall not be unreasonably withheld.
9. EXCEPT FOR SECTIONS 6 AND 12, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT,
CIRCUMSTANTIAL, OR INCIDENTAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OF DATA,
OR INTERRUPTION OF BUSINESS OF ANY KIND WHATSOEVER IN ANY WAY ARISING OUT OF OR
RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE,
EVEN IF ANY REPRESENTATIVE OF SUCH PART HAS BEEN ADVISED OF THE POSSIBILITY OF
OR COULD HAVE FORESEEN SUCH DAMAGES. EXCEPT FOR SECTIONS 6 AND 12, IN NO EVENT
WHATSOEVER SHALL EITHER PARTY'S LIABILITY FOR DIRECT DAMAGES TO THE OTHER PARTY
FOR ANY OTHER REASON WHATSOEVER EXCEED IN THE AGGREGATE THE SUM OF FIFTY
THOUSAND
DOLLARS ($50,000.00). THE FOREGOING LIMITATION OF LIABILITY SHALL NOT
APPLY TO THE COMPENSATION PAYABLE UNDER THIS AGREEMENT.
10. It is expressly agreed that if either party, on any occasion, fails to
perform any term of this Agreement, and the other party does not enforce that
term, the failure to enforce on that occasion shall not constitute a waiver of
that term by the other party. A waiver of any provision of this Agreement or
any right or obligations of either party hereunder shall be effective only to
the extent provided to a writing signed and delivered by the party waiving
compliance.
11. Anything in this Agreement to the contrary notwithstanding, under no
circumstances whatsoever shall STATE FARM pay any taxes which it does not
customarily pay in transactions of the nature set forth in this Agreement.
Under no circumstances whatsoever shall STATE FARM be liable for any penalties,
fines or other such charges incurred due to the failure of VENDOR to timely pay
when due any taxes owed by it under this Agreement
12. Anything in this Agreement to the contrary notwithstanding, each party at
its own expense shall defend, indemnify and hold the other fully harmless
against any action asserted against such party (and specifically including costs
and reasonable attorneys' fees associated with any such action) to the extent
that it is based on a claim that any materials, content or services provided by
the indemnifying party under this Agreement infringe upon any patent, copyright,
license or other property right or proprietary right of any third party (as used
in this Section 12, a "Claim of Infringement"). Either party shall promptly
notify the other in writing of any such claim. If as a result of any Claim of
Infringement, the indemnified party is enjoined from using the materials,
content or services, or if the indemnified party believes that such materials,
content or services are likely to become the subject of a Claim of Infringement,
the indemnifying party as its option and expense may procure the right for the
indemnified party to continue to use the materials, content or services, or
replace or modify the materials, contents or services so as to make such non-
infringing. The rights and obligations of the parties pursuant of this Section
12 shall survive any termination or expiration of the Agreement so long as such
replacement or modification shall not materially degrade the performance
rendered to the indemnified party pursuant to this Agreement. A party shall not
have any liability under this Section 12 to the extent the Claim of Infringement
is caused by the party seeing indemnification hereunder.
13. Neither party shall be liable for any delays in performance hereunder due
to unforeseen circumstances beyond its control including, but not limited to,
acts of nature, fire, flood, acts of governments, delays in transportation, and
delays in delivery or inability of suppliers to deliver. In such event, this
Agreement shall remain valid and the rights and obligations it sets forth shall
be resumed when such party shall again be able to perform its obligations;
however, in such event, the parties hereby mutually agree on an outside
limitation date not in excess of sixty (60) days. If such party is unable to
resume
the performance of its obligations within such period, then either party
shall have the option to terminate this Agreement by so notifying the other
party in writing.
14. This Agreement together with Exhibit A hereto shall be an agreement binding
upon each of the parties hereto, their successors and, to the extent permitted,
their assigns. This Agreement shall be effective upon written execution by both
parties. This Agreement shall be governed by the laws of the State of Illinois
without regard to its conflict of laws procedures. This Agreement cannot be
amended or otherwise modified except as agreed to in writing by each of the
parties hereto. This Agreement and Exhibit A represent the sole agreement
between the parties and supersede and merge any prior agreement, oral or
written, between the parties with respect to the subject matter hereof,
including, but not limited to any letters of intent, confidentiality agreements
and the agreement between the parties dated January 21, 1998. Any additional or
different terms in the parties' communications, whether acknowledgments,
invoices or otherwise, are hereby deemed to be material alterations and notice
of objection to them and rejection of them is hereby given. The headings used
in this Agreement are for convenience only shall not be considered in its
interpretation.
15. VENDOR expressly agrees that it shall not disclose or otherwise identify
STATE FARM or any of its subsidiaries or affiliates in any of VENDOR's
advertising, publications or other media which are displayed or disseminated to
VENDOR's customers or other parties. The foregoing shall not apply to (I)
VENDOR including STATE FARM's name or trademarks on its website as specified in
this Agreement; or (ii) a one-time single-issuance initial press release by
VENDOR, subject to STATE FARM's advance written approval, announcing the
addition of STATE FARM to the VENDOR's site under this Agreement. This section
shall survive the termination or expiration of this Agreement.
16. Except as otherwise specified herein, all notices, demand or communications
required hereunder shall be in writing and delivered personally, or sent either
by the equivalent of U.S. certified mail, postage prepaid return receipt
requested or by overnight delivery air courier (e.g. Federal Express) to the
parties at their respective addresses set forth on the signature page attached
hereto. All notices, requests, demands, or communications shall be deemed
effective immediately upon the earlier of personal delivery, or four (4) days
following deposit in the mails as set forth above, or one (1) business day
following delivery to the overnight delivery air courier in accordance with this
section. The parties may change their respective addresses for notification of
five (5) days advance written notice pursuant to the procedures set forth in
this Section.
17. Each party shall, at its own expense, comply with any applicable
governmental law, statute, ordinance, administrative order, rule, or regulation
relating to its business or its duties, obligations and performance under this
Agreement, shall procure and maintain in force all governmental licenses and pay
all fees and other charges required thereby; including, but not limited to STATE
FARM's obligation to obtain regulatory approval for the terms and conditions of
its applications, policies, endorsements, forms and
advertising, and shall cooperate to the extent reasonably necessary to enable
the other party hereto to comply with applicable law or regulations, or the
reasonable requirements, requests or investigations of proper regulatory
authorities.
18. The parties agree to engage in discussions regarding other potential
business opportunities, including but not limited to automobile financing.
IN WITNESS WHEREOF, VENDOR and STATE FARM have caused this Agreement to be
executed by their respective, duly authorized officers.
This Agreement shall become effective on July 15, 1998.
XXXXXXX.XXX, INC. STATE FARM MUTUAL
0000 Xxx Xxxxxx XXXXXXXXXX
Xxxxx Xxxxx, XX 00000 INSURANCE COMPANY
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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Signature Signature
Xxxxx Xxxxxx Xxxxxxx X. Xxxxxx
----------------------------- ------------------------------
Printed or Typed Name Printed or Typed Name
EVP Agency Vice President
----------------------------- ------------------------------
Title Title
7/22/98 7/26/98
----------------------------- ------------------------------
Date Date
Exhibit A
Term:
An initial term of one (1) year with a right of first refusal on an
additional year under terms and conditions to be negotiated in good faith
between the parties and completed thirty (30) days before the end of the
initial term.
Distribution:
STATE FARM will be provided with an exclusive, fixed presentation on
VENDOR's insurance page for insurance applicants, as well as other
exclusive presentations to which the parties agree. VENDOR may run banner
advertisements for other insurance companies on pages where STATE FARM is
not present.
Program:
Individuals interested in receiving insurance quotes will fill out an
inquiry form and the information will be submitted to STATE FARM.
Inquiries:
STATE FARM inquiries will be sent twice daily to the closest STATE FARM
agent. A copy may also be E-mailed to STATE FARM's headquarters.
Promotions:
This partnership will be promoted through the VENDOR's website.
Compensation:
[ ]** dollars ($[ ])** at contract signing.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have
been omitted from the public filing and have been filed separately
with the Securities and Exchange Commission.
