Exhibit 10.16
New & Pre-Owned Car Agreement
This New & Pre-owned Car Agreement (the "Agreement") is entered into by and
between Republic Industries, Inc., ("you" or "Republic Industries") located at
000 X.X. 0xx Xxxxxx, Xxxx Xxxxxxxxxx, XX 00000 and Xxxxxxx.xxx, Inc., a
California corporation, ("we" or "Xxxxxxx.xxx") located at 0000 Xxx Xxxxxx,
Xxxxxxxx 0, Xxxxx Xxxxx, XX 00000. The effective date of this Agreement is 17
June , 1998 (the "Effective Date"). Republic Industries' franchises and
dealerships that are subject to this Agreement are listed in the New Car or Pre-
owned Car Order Schedules that Republic Industries may submit from time to time.
What we agree to do
From Xxxxxxx.xxx's internet web site at "xxx.xxxxxxx.xxx" (the "Site"), we
will provide to you certain information about a customer order, including the
name and telephone number or email address of the customer, the type of
inventory requested and other digital information provided by the customer in
connection with the Inquiry (the "Inquiry").
Provided a territory is available, we agree to provide you Inquiries as soon
as practicable following receipt of a New Car or Pre-owned Car Order Schedule,
which you may submit from time to time. We agree, provided your account is in
good standing, to give you priority over other retail car sellers as areas
become available.
We agree to provide you access to Xxxxxxx.xxx trainers and provide you with
the Xxxxxxx.xxx Member Dealer Success Manual.
We agree to make a reasonable effort to update the Site with current
information about the pre-owned cars in your inventory (the "Inventory"). We
agree to work with you to develop an automatic update capability so your
Inventory can be current each business day.
What you agree to do
You agree to appoint a primary contact at each location and to have that
contact, or his designate, respond to each Inquiry delivered to you by 5:00
p.m. local time on the following business day. The contact person will
cheerfully answer consumer questions regarding Xxxxxxx.xxx, the Xxxxxxx.xxx
process of buying a car, the dealership and the automobile that is the subject
of the Inquiry. You agree to notify us promptly if the contact changes.
You agree to give your best price over the phone or by email on the first
contact with the customer associated with the Inquiry or as soon as
practicable after identifying the customers needs. You agree to follow all
other guidelines in the Xxxxxxx.xxx Member Dealer Success Manual.
You agree to review Your Page at least once per week and to notify Xxxxxxx.xxx
of all inaccuracies or other changes, such as business hours and primary
contact person, that will keep Your Page current. You agree that at all times
you will possess and maintain the technical capability to receive the
Inquiries both through either e-mail and facsimile.
**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.
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Fees
We will invoice you [ ]** dollars ($[ ])** for each Inquiry. The
price per Inquiry will not increase during the first [ ]** ([ ])** months of
this Agreement. You elect to receive Inquiries from the approximate distance
from your dealership as specified in each New Car and Pre-Owned Car Order
Schedule and as measured from center of zip code to center of zip code. Each
billing will be for the previous months Inquiries delivered to you. You
understand we do not guarantee you will be able to increase the distance in
the future. You agree to pay the invoice within thirty (30) days. A
Qualified Inquiry is an Inquiry that is delivered to you and that has a name
and a valid telephone number or email address. We will automatically credit
you [ ]** % ([ ] percent) of each invoice to allow for Inquiries that are
not Qualified Inquiries. You understand and agree that an Inquiry is an
expression of interest on the part of a consumer and that it does not
necessarily lead to a sale of a vehicle.
You agree to purchase [ ]** ([ ])** inquiries in advance. Payment
is due within 30 days of the Effective date.
Other Agreements
All information provided to customer about you is your responsibility. You
acknowledge that you, and not Xxxxxxx.xxx, are offering automobiles for sale.
Title and risk of loss of your inventory remains with you and does not
transfer or vest in Xxxxxxx.xxx
You agree that your pre-owned vehicles have been inspected and have undergone
the inspection of the components listed in Addendum 1 of this agreement and
that any repairs have been made to put them in good working order. You also
agree to provide a limited 90 day or 3000 mile, whichever comes first, power
train warranty for each car. We agree to identify your Inventory as
"Xxxxxxx.xxx Certified." You will notify us of any cars not meeting the
criteria of Addendum 1 as part of the automatic used car update.
You agree that we will have sole discretion over the design of the look and
style of the Site and Your Page. You agree that we are not liable to you or to
any third party for any inaccuracies on Your Page.
You agree the design, layout, graphics and programming of Your Page is the
property of Xxxxxxx.xxx.
Warranties
AUTOWEB PROVIDES THE XXXXXXX.XXX SERVICES AND ALL OTHER SERVICES PERFORMED BY
AUTOWEB UNDER THIS AGREEMENT "AS IS". EXCEPT AS PROVIDED BELOW, AUTOWEB MAKES
NO WARRANTIES WITH RESPECT TO THE PERFORMANCE OF ITS SOFTWARE, EXPRESS OR
IMPLIED, AND AUTOWEB EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
Republic Industries warrants that 1) its new car dealers are licensed
franchises, 2) the rights granted by Republic Industries to Xxxxxxx.xxx under
this Agreement do not infringe the proprietary rights of third parties,
including copyrights, trademarks and trade secrets, 3) any
**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.
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information provided to Xxxxxxx.xxx for listing on the Xxxxxxx.xxx are
truthful and accurate, 4) Republic Industries will provide its customers with
all information and notices legally required under the laws applicable to the
jurisdiction where the customer is located or will be using its inventory and
5) Republic Industries' promotion and distribution of its inventory does not
violate any applicable laws or regulations. Republic Industries shall defend,
indemnify and hold harmless Xxxxxxx.xxx and its directors, officers and agents
from and against any claims, liabilities, expenses or demands arising out of a
breach of the foregoing warranties.
Xxxxxxx.xxx represents and warrants that the Xxxxxxx.xxx services and
deliverable provided under this Agreement will not infringe the proprietary
rights of third parties, including copyrights trade marks and trade secrets.
Other
The term of this Agreement will remain in effect for one (1) year after the
Effective Date and will renew for successive one year periods until cancelled
in accordance with this Agreement. Notwithstanding the foregoing, either
party may terminate this Agreement upon written notice of a breach by the
other party of any term contained herein or, after six (6) months, upon 30
days notice, for any reason. Notwithstanding the foregoing Xxxxxxx.xxx shall
not be able to terminate the Agreement without cause until Republic
Industries has received its initial [ ]** ([ ])** Inquiries. If this
Agreement is terminated or expires, with the exception of the initial
purchase of [ ] Inquiries, we will refund the unused portion of any
Inquiries purchased in advance.
Republic Industries agrees that from time to time Xxxxxxx.xxx may change the
terms and conditions of this Agreement, including but not limited to pricing
(the "Changes"). We agree to provide you with written sixty (60) day, advance
notice of the Changes. The notice will be sent to the address on the first
page of this Agreement, ATTN: Contract Administration. We agree that if you
do not accept the Changes, you may immediately cancel the Agreement without
penalty.
The provisions of Fees, Warranties, Other Agreements and Other shall survive
the termination of this Agreement for any reason. All other rights and
obligations of the parties shall cease upon termination of this Agreement.
Upon termination of this Agreement, we will delete Your Page.
This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter herein. This Agreement merges and
supersedes all prior or contemporaneous agreements, discussions and
understandings between the parties, oral or written, regarding such subject
matter. No modification to, or amendment of, this Agreement, shall be
effective unless it is signed by both parties.
Xxxxxxx.xxx shall not be liable to Republic Industries or any third party for
damages related to service interruption, corruption of information contained
in the Site or Your Page, the removal of any listing, or any delay on the part
of Xxxxxxx.xxx to perform services hereunder, if beyond its reasonable
control.
**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.
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THE PARTIES AGREE THAT IN NO EVENT WILL XXXXXXX.XXX BE LIABLE TO REPUBLIC
INDUSTRIES OR ANY OTHER PARTY, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN
ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL
THEORY, HOWEVER ARISING, OR FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER
OR NOT AUTOWEB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT IN
THE CASE OF A BREACH IF ITS WARRANTY OF NON-INFRINGEMENT, IN NO EVENT WILL
XXXXXXX.XXX'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY
AUTOWEB FROM REPUBLIC INDUSTRIES PURSUANT TO THIS AGREEMENT.
In the event any provision of this Agreement (or portion thereof) is
determined by a court of competent jurisdiction to be invalid, illegal, or
otherwise unenforceable, such provision shall be deemed to have been deleted
from this Agreement, while the remainder of this Agreement shall remain in
full force and effect.
Either party may assign this Agreement without the other party's consent in
connection with a merger, acquisition or reorganization of such party,
provided that, if the assignee is a direct competitor of the other party, then
the other party may terminate this Agreement upon thirty (30) days written
notice to the assigning party.
The failure of either party to require performance by the other party of any
provision hereof shall not affect the full right to require such performance
at any time thereafter; nor shall the waiver by either party of a breach of
any provision hereof be taken or held to be a waiver of the provision itself.
This Agreement shall be governed by and construed under the laws of the State
of California. The prevailing party in any legal action brought by one party
against the other arising out of this Agreement shall be entitled, in addition
to any other rights and remedies it may have, to reimbursement for its
expenses, including court costs, expert witness fees and reasonable attorneys'
fees.
This Agreement may be executed in any number of counterparts, and each
executed counterpart shall have the same force and effect as an original
instrument.
Xxxxxxx.xxx, Inc. Republic Industries
By: /s/ Xxxxx Xxxxxx By: /s/
_________________________ _________________________
Title: EVP Title: V.P. Internet Services
______________________ ______________________
Date: 6/17/98 Date: 17 Jun 98
_______________________ _______________________
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