THIS (the "Agreement") is entered into as of
December 15, 1999 by and among
XxxxXxxxxXxxxxx.xxx Inc., an Arizona corporation, whose address is 0000
Xxxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000 (hereinafter "ATC");
and
American Honda Finance Corporation, a California corporation, whose
address is 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter
"AHFC").
WHEREAS, AHFC provides financing for lease transactions involving motor vehicles
bearing the Honda and Acura brand names and leased by consumers through
authorized Honda and Acura automobile dealers (hereinafter, such motor vehicles
are called the "Honda Vehicles"); and
WHEREAS, AHFC desires to obtain certain remarketing services and desires to
obtain assistance in administering programs involving the sale of the Honda
Vehicles; and
WHEREAS, AHFC desires to execute those remarketing services through use of
electronic commerce technologies via Internet applications; and
WHEREAS, ATC is a corporation capable of providing technologies, architecture
and support of certain Internet applications to AHFC, and providing remarketing
services, administrative and marketing support to AHFC; and
WHEREAS, AHFC desires to retain the services, experience and assistance of ATC,
and ATC desires to assist AHFC under the following terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AHFC hereby engages ATC to assist AHFC in the sale and promotion of
certain Honda Vehicles under the terms and conditions of this
Agreement, and ATC hereby agrees to accept such engagement with AHFC
for and in consideration of the compensation hereinafter to be paid by
AHFC to ATC. AHFC agrees to use the current website developed by ATC
for AHFC (the "ATC/Honda website"), as reflected in the document
entitled "Honda Website Overview" prepared by ATC and provided to AHFC
(a copy of which is attached to this Agreement as Exhibit A), as its
primary method of remarketing of Honda Vehicles. The parties mutually
agree to proceed with the enrollment of the authorized Honda and Acura
automobile dealers as participants in the ATC/Honda website as soon as
practicable after the execution of this Agreement with the intention
that all such dealers will be enrolled within six months. Enrollment
means that the dealer has received a user name and password for
the ATC/Honda website (herein called an "Enrolled Dealer"). AHFC and
ATC will mutually agree on a domain name for the ATC/Honda website
which will include the name "Honda" and AHFC will own the rights to the
domain name for the ATC/Honda website but ATC will be exclusive web
master for the site during the term of this Agreement.
2. The term of this Agreement shall commence effective as of the 1st day
of February 2000 and shall be for a period of twenty-four (24) months;
provided that AHFC may, at its option, terminate the term of this
Agreement upon sixty (60) days prior to written notice to ATC and, if
AHFC gives such termination notice on or prior to July 31, 2000, AHFC
shall pay the sum of $ * to ATC as a termination fee upon
termination of the term of this Agreement. The foregoing termination
fee represents reimbursement to ATC for a portion of the up-front costs
incurred by ATC in connection with the ATC/Honda website as summarized
on Exhibit C attached hereto. In addition, in the event that, after the
parties mutually agree that the ATC/Honda website is fully operational,
the ATC/Honda website is not operational for any reason other than acts
of God continuously during any consecutive twenty-four hour period (a
"24 Hour Penalty Period") that does not include any time within any
other 24 Hour Penalty Period, ATC agrees to pay AHFC the sum of $250
per 24 Hour Penalty Period. The parties hereto may elect to renew this
Agreement on such terms and conditions as may be mutually agreed upon.
All renewals must be agreed upon in writing and signed by all parties
hereto.
3. The services to be provided by ATC, at ATC's expense, are the
following:
a. ATC shall during the term of this Agreement focus its efforts on
the creation, architecture, and utility of the ATC/Honda website,
providing Internet access to any and all departments of AHFC, the
Honda/Acura dealer body, and additional companies providing
support to AHFC in the sale of Honda Vehicles. AHFC has reviewed
and accepted the ATC/Honda website proposed by ATC as currently
contained in the ATC/Honda website. Any significant modification
or enhancement to the ATC/Honda website requested by AHFC will be
undertaken by ATC and AHFC will pay or reimburse ATC for its out
of pocket development costs; provided that ATC will provide an
estimate of the cost of any such significant modification or
enhancement and AHFC must approve such cost estimate prior to
undertaking the modification or enhancement and ATC will promptly
inform AHFC if it determines that the original cost will be
exceeded by more than 120% based on the progress of the
modification or enhancement and, in such event, will not incur any
additional expense unless authorized by AHFC. ATC will, at its
expense (i) complete the design and implementation of the
ATC/Honda website as contemplated by Exhibit A, including
programming for the transfer of data on a daily basis, and (ii)
perform routine and customary maintenance on the ATC/Honda
website.
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* Confidential information omitted and filed separately with the Securities and
Exchange Commission.
b. ATC shall make available to all parties deemed necessary by AHFC
twenty four hour, password protected access to the ATC/Honda
website, affording all parties deemed necessary by AHFC,
continuous communication, access to data, viewing of all Honda
Vehicles intended for sale, rendering AHFC capable of selling
certain Honda Vehicles to it's dealer body.
c. ATC shall be responsible to assure that the ATC/Honda website
accurately displays the vehicle information as provided by AHFC or
Intermodal Transport Services, such as matching AHFC lease account
numbers and the vehicle identification number or "vin",
incorporation of the AHFC pricing table, assignment of user
passwords online and/or direct, and other possible areas of the
ATC/Honda website as AHFC deems necessary; provided that ATC is
not responsible for confirming the accuracy of the information
provided to it for inclusion in the ATC/Honda website from AHFC or
Intermodal Transport Services.
d. ATC shall provide to AHFC in website architecture custom website
features including but not limited to home page(s), vehicle
search, vehicle inventories with condition reports, digital
photos, vehicle purchase, purchase confirmation, transportation,
policies and procedures, community pages, calendars,
administration pages, market reports, and seamless Internet links
to any and all parties and/or additional websites (such as
auctions, used car guide publications) deemed necessary by AHFC.
e. ATC shall for purposes of guaranteeing funds to AHFC in the sale
of Honda vehicles utilize a member of the National Auto Auction
Association for such transactions for any vehicle sold by AHFC
through the ATC/Honda website that is not an authorized Honda
and/or Acura automobile dealer.
f. ATC shall, for purposes of contacting prospective purchasers of
Honda Vehicles, and driving those prospective purchasers to the
ATC/Honda website, employ ATC to provide telemarketing, fax and
e-mail campaigns, national and/or regional publication
advertisements, direct mail, and representation at any and all
AHFC and/or American Honda Motor Co., Inc. events, strategy
sessions, dealer functions, and/or automotive industry seminars
and associated functions.
g. ATC shall coordinate its efforts regarding the ATC/Honda website,
it's design, and functionality, with members of all entities
referenced herein, as deemed necessary by AHFC for the purpose of
continual analysis, upgrade, and further development of the AHFC
premier website.
h. ATC shall indemnify AHFC against any loss, damage or expense
arising from any breach of ATC's obligations under this Agreement;
provided that ATC shall have the right to defend any third party
claim that is asserted against
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which AHFC is indemnified under this subparagraph. Notwithstanding
anything contained in this Agreement, the parties agree that ATC
will not be in breach of its obligations because of any natural
casualty, war, insurrection, civil disturbance or other causes
beyond its reasonable control.
i. ATC represents and warrants to AHFC that the ATC/Honda website as
designed and implemented by ATC does not infringe upon the rights
of any third party and complies with all applicable laws and
regulations; provided that AHFC shall be responsible for
determining the compliance of the ATC/Honda website with any laws
or regulations relating to the sale of motor vehicles and ATC is
not responsible for complying with any such laws or regulations.
j. ATC represents and warrants to AHFC that is currently carries the
insurance described on Exhibit B attached to this Agreement.
During the term of this Agreement, ATC agrees to maintain the
insurance at least comparable to the insurance described in
Exhibit B.
4. As compensation for the services to be rendered by ATC, AHFC shall pay
to ATC a Fee as follows:
For vehicles sold to the original dealer $ * per vehicle; and For
vehicles sold to another dealer $ * per vehicle.
In the event that the per vehicle sold billing as described above does
not total a minimum of * per month, AHFC agrees to pay ATC * .
This per vehicle sold billing will be presented to AHFC monthly. All
payments shall be payable to ATC at 0000 X. Xxxxxxxx, Xxxxx 0,
Xxxxxxxxxx, XX 00000, or at such other place or places as ATC may, by
written notice, direct.
At AHFC's sole option, dealers that are not authorized Honda and/or
Acura automobile dealers may be allowed to purchase vehicles from the
Internet site. The terms and conditions of such event shall be
negotiated and contracted between the parties at such time as AHFC
deems necessary. However, if AHFC elects to allow such purchases, the
parties agree that ATC may charge a Buyer's fee to be paid by the
non-Honda and/or non-Acura dealer.
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* Confidential information omitted and filed separately with the Securities and
Exchange Commission.
5. The failure of a party hereto to perform any covenant, term or
condition of this Agreement to be kept or performed by such party shall
be an Event of Default for purposes of this Agreement if the party
asserting a default under this Agreement has given written notice of
such default to the party claimed to be in default and such party has
not cured such failure within a reasonable period of time.
6. Upon the occurrence of an Event of Default, the aggrieved party may, at
its discretion and without further notice to the other, exercise one or
more of the following remedies:
a. Terminate this Agreement;
b. Proceed by appropriate court action to enforce the terms
hereof, or to recover damages for the breach of any term
hereof; or
c. Exercise any other right or remedy available under applicable
law.
7. All remedies herein conferred upon either party hereto shall be
cumulative and concurrent with every other right or remedy given
hereunder, or ow or hereafter existing at law or in equity.
8. This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof. There are no understandings,
written or oral, except as set forth herein. Any modification of this
Agreement shall be in writing and signed by an authorized
representative of each of the parties.
9. Neither the failure of a party to insist upon the performance of any
term or condition of this Agreement or to exercise any right or
privilege conferred by this Agreement, nor the waiver by a party hereto
of any such term or condition, shall be construed as thereafter again
waiving any such term, condition, right or privilege.
10. Should any part, term or provision of this Agreement be held to be
illegal, or in conflict with any law of the state where made, the
validity of the remaining portions or provisions shall not be affected.
11. This Agreement shall be binding upon, and shall inure to the benefit
of, the respective parties, their successors, legal representatives and
assigns.
12. This Agreement may be executed in any number of counterparts and by the
parties on separate counterparts, all of which together shall
constitute a single agreement.
13. ATC acknowledges that it will, during the course of performing services
pursuant to this Agreement, have access to certain confidential and
highly sensitive proprietary information concerning and belonging to
AHFC. ATC agrees to keep all such proprietary information belonging to
or concerning AHFC in strict confidence and
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neither use or nor willfully disclose such information without the
express written permission of AHFC.
14. ATC and AHFC shall not, by virtue of this Agreement, be construed as
joint ventures, agents, or partners of each other except as set forth
in this Agreement.
15. Any notices or other communications required or permitted hereunder
shall be deemed given if personally delivered, or if sent by United
States Certified mail, return receipt requested, postage prepaid,
addressed to the address set forth herein. Any notice so mailed shall
for all purposes deemed to have been given to and received by the party
for whom intended on the date said notice was mailed.
16. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of California. The parties hereto consent to the
jurisdiction of the state and federal courts located in Los Angeles
County, California in the event there is a legal proceeding relating to
this Agreement.
ACCORDINGLY, the parties hereto have executed this Agreement on the day and year
first above written.
XXXXXXXXXXXXXXX.XXX, INC. AMERICAN HONDA FINANCE CORP.
INC
BY: /S/ XXXXX X. XXXXXXXXXX BY: /S/(unable to read signature)
---------------------------------------- --------------------------------
ITS: PRESIDENT ITS: PRESIDENT
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