REFERRAL AGREEMENT
THIS REFERRAL AGREEMENT (this "Agreement"), dated as of September __, 1998 is
made by and between AUTOCONNECT, L.L.C. a Delaware Limited Liability Company
whose address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("AUTOCONNECT"), and ELECTRONIC VEHICLE REMARKETING, INC., a Delaware
corporation whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("EVRI"), with reference to the following facts:
A. AUTOCONNECT owns and operates a World Wide Web site, the URL of which is
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "AUTOCONNECT Site"), pursuant to which
AUTOCONNECT offers to Consumers information relating to automobiles.
B. EVRI is in the business of operating a World Wide Web site, the URL is of
which is ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Finance Site" or "EVRI Site").
C. AUTOCONNECT and EVRI desire to enter into an agreement pursuant to which
AUTOCONNECT will promote and link to a co-branded version of the EVRI Site.
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Definitions.
Each of the terms defined in this Section 1. 1 shall have the following
respective meanings:
"AUTOCONNECT Consumer" means a Viewer of the AUTOCONNECT Site.
"Co-Branded EVRI Site" means the version of the EVRI Site co-branded with
AUTOCONNECT marks (i.e. the Pages of the EVRI Site that are linked to the
AUTOCONNECT Site), and that (i) is created and designed by EVRI for direct
access by AUTOCONNECT Consumers from the AUTOCONNECT Site, (ii) "mirrors," to
the extent necessary or appropriate, the Pages of the Finance Site that are
intended to be accessed by Viewers who are not AUTOCONNECT Consumers, and (iii)
provides AUTOCONNECT Consumers the capability to make Finance Submissions.
"EVRI Icons" means one or more Icons of customary size and design that are
displayed by AUTOCONNECT in the AUTOCONNECT Site and that, when clicked on by an
AUTOCONNECT Consumer, will link such AUTOCONNECT Consumer to the Co-Branded EVRI
Site.
"Accepted Financing Submissions" shall mean the net number of Financing
Submissions made by AUTOCONNECT Consumers which are accepted by EVRI for
processing, which number shall be determined for any period by taking the total
number of Financing Submissions made during such period and subtracting (i) any
such Financing Submission that is identified by EVRI as either made with
fraudulent intent or is not bona fide (e.g. does not include truthful responses
to the material items of information that EVRI needs in order to process a
Financing Submission), and (ii) any such Financing Submission that is a
duplicate of a prior Financing Submission.
"Funded Financing Submission" means an Accepted Financing Submission that
results in the origination of a lease or loan by a financing source provided
through EVRI.
"Financing Yield" means, for a specified period, a fraction, the denominator of
which is the number of Accepted Financing Submissions made during such period
and the numerator of which is the number of such Submissions that resulted in
the AUTOCONNECT Consumers who made such Submissions subsequently acquiring
vehicle financing from or through EVRI.
"Icon" means a graphic, highlighted text or other visual cue displayed on a Page
that, when clicked on by a Viewer, provides a link to another Page.
"Page" means a portion of a Website consisting of one or more screen displays
that are accessible through a separately addressable URL.
"Post-Submission Page" means one or more Pages of the AUTOCONNECT Site that are
immediately and automatically accessed by an AUTOCONNECT Consumer upon such
AUTOCONNECT Consumer's making of a Submission.
"Term" has the meaning set forth in Section 4.1 hereof.
"URL" means "uniform resource locator," the address by which the Internet
locates and retrieves a Page.
"Vehicle Pricing Information" means information concerning the actual or
estimated prices of new vehicles, used vehicles and/or available options.
"Viewer" means an individual viewing a Page.
"Yield" means the Financing Yield.
2. AUTOCONNECT's and EVRI's Obligations.
2.1 AUTOCONNECT covenants to EVRI that, during the Term:
2.1.1 AUTOCONNECT shall, on the later of (i) fifteen (15) days from the date of
EVRI's delivery of properly formatted graphic files under Section 2.2 hereof and
(ii) thirty days from the effective date of this Agreement, display the EVRI
Icons on such pages of the AUTOCONNECT Site that are mutually agreed upon by
EVRI and AUTOCONNECT. AUTOCONNECT shall initially display these Icons and the
Co-Branded EVRI Site only to AUTOCONNECT Consumers who reside in the State of
Florida, and will expand this AUTOCONNECT Consumer audience to include all
AUTOCONNECT Consumers on a date mutually agreed upon by EVRI and AUTOCONNECT.
2.1.2 AUTOCONNECT agrees to operate the AUTOCONNECT Site, and to use all
commercially reasonable efforts to maintain the availability and accessibility
of the AUTOCONNECT Site, on a 24-hour, seven days per week basis, excluding
routine maintenance. EVRI acknowledges that AUTOCONNECT is not responsible for
downtime due to technical problems relating to the internet or experienced by
AUTOCONNECT's service providers.
2.2 EVRI covenants to AUTOCONNECT that, during the Term:
2.2.1 EVRI shall create and host, or arrange for the creation and hosting, of
the Co-Branded EVRI Site on the World Wide Web at
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇, and hereby grants AUTOCONNECT the right to
establish links from the AUTOCONNECT Site to the Co-Branded EVRI Site. The
Co-Branded EVRI Site shall consist of a number of related Pages that, when
accessed through an EVRI Icon: (i) advises the AUTOCONNECT Consumer of the
availability of vehicle financing; (ii) solicits information for the purpose of
qualifying such AUTOCONNECT Consumer for the financing desired by such
AUTOCONNECT Consumer; (iii) offers vehicle financing to qualified AUTOCONNECT
Consumers; and (iv) if such financing is accepted by the AUTOCONNECT Consumer,
completes arrangements for the making of the financing available to the
AUTOCONNECT Consumer. EVRI also agrees to permit AUTOCONNECT to extract content
selected by AUTOCONNECT and agreed to by EVRI (the "AUTOCONNECT Selected
Content") from the Co-Branded EVRI Site to incorporate such content into the
AUTOCONNECT Site. EVRI grants to AUTOCONNECT a royalty-free license to use copy,
publicly display and distribute the AUTOCONNECT Selected Content, and to create
derivative works on the AUTOCONNECT Selected Content, on the AUTOCONNECT Site.
EVRI and AUTOCONNECT will mutually agree upon the content of the Co-Branded EVRI
Site, including such content as the inclusion of third party advertising or
solicitations. EVRI shall not engage in any marketing or sales efforts that
disparage or dismiss AUTOCONNECT or AUTOCONNECT dealer customers. AUTOCONNECT
shall not engage in any marketing or sales efforts that disparage or dismiss
EVRI or NationsBank customers.
2.2.2 EVRI agrees to operate the Co-Branded EVRI Site, and to use all reasonable
efforts to maintain the availability and accessibility of each of the Co-Branded
EVRI Site to AUTOCONNECT Consumers, on a 24-hour, 7 days per week basis,
excluding routine maintenance. AUTOCONNECT acknowledges that EVRI is not
responsible for downtime due to technical problems relating to the Internet or
experienced by EVRI's service providers.
2.2.3 The Co-Branded EVRI Site shall not include any Icon linking an AUTOCONNECT
Consumer to any Page or Website other than (i) another Page within the
Co-Branded EVRI Site, or (ii) the Page. accessed through the Return Icon, for
the purpose of attempting to induce each AUTOCONNECT Consumer who has completed
its access of such Co-Branded EVRI Site to return to the AUTOCONNECT Site.
2.2.4 EVRI shall post to a designated, password-protected EVRI website, on a
daily basis, a file containing the names of all of the AUTOCONNECT Consumers
making up the Financing Submissions, including the names of all the AUTOCONNECT
Consumers who have been declined credit for Financing. EVRI shall also provide
AUTOCONNECT, on a monthly basis, a series of activity reports that include the
aggregate information detailed in Exhibit 1. During the Florida pilot, EVRI
shall provide the information listed in Exhibit 1 as responsive to "Phase I." At
such time as AUTOCONNECT offers links to the Co-Branded EVRI Site nationwide,
and AUTOCONNECT delivers a minimum of one hundred (100) funded applications in a
calendar month, EVRI shall provide the information listed in Exhibit 1 as
responsive to "Phase II," in addition to Phase I. Although additional
information listed in Exhibit 1 as responsive to "Phase III" is not currently
available, EVRI will use best efforts to acquire and provide this information to
AUTOCONNECT by July, 1999. AUTOCONNECT agrees to use this information only for
internal planning purposes and for evaluation of its rights under this
Agreement.
2.2.5 EVRI alone shall be responsible for the Co-Branded EVRI Site. EVRI shall
abide by all Federal, State and local laws and regulations and financial and
automotive industry rules applicable to financing and credit and any products or
services offered through the Co-Branded EVRI Site. EVRI understands and
acknowledges that although AUTOCONNECT may promote and provide links from the
AUTOCONNECT Site to the Co-Branded EVRI Site and may incorporate the AUTOCONNECT
Selected Content into the AUTOCONNECT Site pursuant to this Agreement, and
although the Co-Branded EVRI Site will be co-branded with AUTOCONNECT Marks,
AUTOCONNECT cannot and does not undertake to review, fact-check or edit the
Co-Branded EVRI Site, or ensure the proper, safe and lawful provision of
services to users via the Co-Branded EVRI Site. However, should AUTOCONNECT deem
any of the content of the Co-Branded EVRI Site that comes to AUTOCONNECT's
attention either inappropriate or otherwise objectionable or undesirable
(whether for editorial, legal, business or other reasons), AUTOCONNECT reserves
the right, but does not assume the obligation, to eliminate any hypertext or
other link from the AUTOCONNECT Site to the Co-Branded EVRI Site and/or to
demand that such content be removed from the Co-Branded EVRI Site.
2.2.6 EVRI alone shall also be responsible for problems AUTOCONNECT Consumers
may have with the automotive financing information and/or services provided by
or associated with the Co-Branded EVRI Site. EVRI shall respond to all user
comments, questions and complaints promptly and in a courteous and professional
manner and will keep a written record of each comment, question or complaint it
receives about the information and/or services provided by or associated with
the Co-Branded EVRI Site, and will provide these records to AUTOCONNECT upon
request.
2.2.7 EVRI shall post a prominent notice on each entry page to the Co-Branded
EVRI Site (that is, the page or pages that are first viewed when an AUTOCONNECT
Consumer clicks on a link from the AUTOCONNECT Site to any content of the
Co-Branded EVRI Site), in a manner and using language satisfactory to
AUTOCONNECT, informing Autoconnect Consumers that EVRI is solely responsible for
the information and services provided by or associated with the Co-Branded EVRI
Site and that AUTOCONNECT assumes no liability for such information and
services. The notice shall also provide a functioning e-mail address, telephone
number and mailing address for EVRI for comments, questions and complaints from
AUTOCONNECT Consumers.
2.3 EVRI and AUTOCONNECT shall cooperate with each other with respect to the
preparation of the editorial material to be included on each Post-Submission
Page, with the understanding the such material shall, among other things,
confirm the receipt by EVRI of the Submission, contain any other post Submission
information as is appropriate to display to the AUTOCONNECT Consumer who made
such Submission, and transition such AUTOCONNECT Consumer back to the content of
the AUTOCONNECT Site.
2.4 EVRI hereby grants to AUTOCONNECT the non-exclusive right to use (i.e. to
copy, transmit, distribute and display) during the Term the EVRI Icons in the
manner described in this Agreement, as well as EVRI logos, trademarks and
service marks (collectively, "EVRI Marks") in print, on-line and other
advertising for the AUTOCONNECT Site, and in the AUTOCONNECT Site. EVRI shall
have the right to review and approve or disapprove AUTOCONNECT's use of the EVRI
Icons and EVRI Marks. All of such use of the EVRI Icons and EVRI Marks shall
inure to the benefit of EVRI and shall not create any rights, title or interest
in the EVRI Icons and EVRI Marks for AUTOCONNECT. AUTOCONNECT agrees that as
between EVRI and AUTOCONNECT, EVRI owns and continues to own exclusively, all
right, title and interest in and to the EVRI Icons and the other EVRI Marks in
perpetuity.
2.5 AUTOCONNECT hereby grants to EVRI the non-exclusive right to use (i.e. to
copy, transmit, distribute and display) during the Term the AUTOCONNECT Icons in
the manner described in this Agreement, as well as AUTOCONNECT logos, trademarks
and service marks (collectively, "AUTOCONNECT Marks") in print, on-line and
other advertising for the Co-Branded EVRI Site, and in the Co-Branded EVRI Site.
AUTOCONNECT shall have the right to review and approve or disapprove EVRI's use
of the AUTOCONNECT Icons and AUTOCONNECT Marks. All of such use of the
AUTOCONNECT Icons and AUTOCONNECT Marks shall inure to the benefit of
AUTOCONNECT and shall not create any rights, title or interest in the
AUTOCONNECT Icons and AUTOCONNECT Marks for EVRI. EVRI agrees that as between
EVRI and AUTOCONNECT, AUTOCONNECT owns and continues to own exclusively, all
right, title and interest in and to the AUTOCONNECT Icons and the other
AUTOCONNECT Marks in perpetuity.
3. Ownership of Content.
3.1 Co-Branded EVRI Site Content. Nothing in this Agreement shall effect a
transfer of copyright from EVRI to AUTOCONNECT, and EVRI shall retain all
ownership rights, including copyrights, in the Co-Branded EVRI Site (except for
content or Marks incorporated into such pages that are owned or provided by
AUTOCONNECT) and shall retain all ownership rights, including copyrights, in the
Co-Branded EVRI Site and the EVRI web site domain name.
3.2 AUTOCONNECT Site Content. AUTOCONNECT shall own all rights in the
AUTOCONNECT Site domain name and in the AUTOCONNECT Site, including, without
limitation, all rights of copyright (including all compilation copyrights) in
the AUTOCONNECT Site, in the site design, and in all content created or
otherwise acquired by AUTOCONNECT, except for the content acquired from EVRI
under this Agreement.
4. Term.
4.1 The term of this agreement shall commence on October 1, 1998 and shall end
on October 1, 1999 (the "Term"), unless otherwise extended or terminated as
provided herein.
4.2 The Term may be terminated only: (i) by AUTOCONNECT in the event that EVRI
does not pay any fees owed by it hereunder within 60 days of the date such fees
are due under this Agreement; (ii) by AUTOCONNECT in the event of any other
material breach of this Agreement by EVRI; (iii) by EVRI in the event of any
material breach of this Agreement by AUTOCONNECT (provided, however, that prior
to either party having the right to terminate the Term pursuant to clauses (ii)
or (iii), such party shall give the other party written notice specifying such
breach and 30 days to cure such breach, or such longer time as may be reasonably
necessary to cure such breach if the party in breach acts expeditiously and if
the nature of such breach requires a longer period); (iv) by either party, at
any time upon not less than 30 days prior written notice, if such party makes
the good faith determination that the continued performance by either such party
or the other party of its respective obligations under this Agreement would not
be feasible or would subject such party to an unreasonable risk of that such
party will incur material damages or other material liability; or (v) in
accordance with Section 4.4 hereof.
4.3 In the event that the Term is not terminated pursuant to Sections 4.1 or 4.2
hereof and AUTOCONNECT and EVRI continue to perform their respective obligations
set forth herein after the expiration of the Term, the Term shall be deemed to
have been extended on a month-to-month basis and may thereafter be terminated
either: (a) by AUTOCONNECT, on not less than 30 days' written notice to EVRI; or
(b) by EVRI on not less than 30 days' written notice to AUTOCONNECT.
4.4 Either party may terminate this Agreement for any reason upon ninety (90)
days prior written notice to the other party.
4.5 The provisions of this Agreement that by their nature would continue beyond
expiration, termination or cancellation of this Agreement (including, without
limitation, Sections 3, 5, 6, and 7) shall survive any such expiration,
termination or cancellation.
5. Fees.
5.1 As promptly as practicable, but in no event more than 30 days, following (i)
September 15, 1998, (ii) the 15th day of each calendar month thereafter during
the Term, and (iii) the 15th day of the second calendar month after the month in
which the Term expires (each such date a "Calculation Date"), EVRI shall
calculate the Fees owed AUTOCONNECT as follows:
5.1.1 EVRI shall calculate a "Submissions Fee," which shall be based on the
Financing Yield and shall be equal the product of (i) the Fee Per Financing
Submission set forth in the following table that corresponds to such Yield,
multiplied by (ii) the number of Accepted Financing Submissions made from the
previous Cut-Off Date through the applicable Cut-Off Date:
Financing Yield: less than 5 % 6-10% 11-15% 16-20% 21% & over
Fee Per
Financing Submission: [*]
5.1.2 EVRI shall also calculate a "Fundings Fee" by multiplying the number of
Funded Financing Submissions since the previous Cut-Off Date by the Fee Per
Funded Financing Submission. The Fee Per Funded Financing Submission shall be
calculated according to the following table:
Fee Per Funded Financing Submission
Principal Amount Financed
$20,001 & over [*]
$15,001-$20,000 [*]
$10,001-$15,000 [*]
$7,500-$10,000 [*]
5.2 Not later than September 15, 1998 and the 15th day of each calendar month
thereafter through the 15th day of the month following the last Calculation
Date, EVRI shall pay AUTOCONNECT an amount equal to the calculated amount (if
any) of the sum of the Submission Fees and the Fundings Fees in sections 5.1.1
and 5.1.2.
5.3 Not later than September 15, 1998 and the 15th day of each calendar month
thereafter through the 15th day of the month following the last Calculation
date, EVRI shall also pay AUTOCONNECT-enrolled U.S. franchise dealers and
selected AUTOCONNECT-enrolled independent dealers a "Handling Fee" equal to [*]
of the principal amount of any Funded Financing Submission relating to a vehicle
sold or leased by such dealer, upon submission from the dealer of an AUTOCONNECT
certificate verifying the dealer's enrollment as an AUTOCONNECT enrolled dealer.
5.3.1 AUTOCONNECT shall supply to its enrolled dealers a one-page certificate
that includes a unique identification number provided by AUTOCONNECT. Dealers
will be required to submit that certificate via facsimile to EVRI as part of the
documentation needed to receive the Handling Fee specified in Section 5.3.
5.4 AUTOCONNECT or its independent outside accountants shall have the right, at
its expense, upon not less than five business days' written notice and during
EVRI's normal business hours, without unreasonably disrupting EVRI's business
operations, to inspect and audit the books and records of EVRI, for the purpose
of verifying any reports, information or payments due to AUTOCONNECT under this
Agreement. If such audit shows that any of EVRI's reports understated the actual
amounts due to AUTOCONNECT by more than five percent (5%), then EVRI shall pay
to AUTOCONNECT all reasonable costs and expenses ( including the reasonable fees
and cost of the auditor and attorneys' fees) which may be incurred by
AUTOCONNECT in conducting such audit and collecting such underpayment.
6. Representations and Warranties
6.1 By AUTOCONNECT. AUTOCONNECT represents and warrants that it owns all of the
right, title and interest in the AUTOCONNECT Site and has the right to display
to Autoconnect Consumers the content thereof, and that it has the right, power
and authority to enter this Agreement and to perform all of its obligations
hereunder. AUTOCONNECT further represents and warrants that it has the right to
grant the licenses granted by AUTOCONNECT hereunder and that neither the
execution and delivery of this Agreement by AUTOCONNECT nor the performance by
AUTOCONNECT of its obligations set forth herein will constitute a breach by
AUTOCONNECT of any other agreement to which it is a party.
6.2 By EVRI. EVRI represents and warrants that it owns all of the right, title
and interest in and to the Co-Branded EVRI Site and has the right to display to
Viewers the content thereof, and that it has the right, power and authority to
enter this Agreement and to perform all of its obligations hereunder. EVRI
further represents and warrants that it has the right to grant the licenses
granted by EVRI hereunder, and that neither the execution and delivery of this
Agreement by EVRI nor the performance by EVRI of its obligations set forth
herein will constitute a breach by EVRI of any other agreement to which it is a
party. EVRI further represents and warrants that it has all rights necessary to
create and/or host the Co-Branded EVRI Site, and that no content thereon (except
any content furnished by AUTOCONNECT) shall violate or infringe any common law
or statutory right of any person or other entity including, without limitation,
any contractual rights, proprietary rights, trademark, service ▇▇▇▇ or patent
rights, or any rights of privacy or publicity, nor shall it violate any law or
regulation, nor shall it be unlawful or defamatory, nor shall it contain any
instructions, recipes or formulas that, if implemented, would result in injury.
7. Indemnification.
7.1 By AUTOCONNECT. AUTOCONNECT agrees to indemnify, defend and forever hold
EVRI (and each of its parents, subsidiaries or entities under common ownership
or control), and all of their respective present and former officers, members,
shareholders, directors, employees, representatives, attorneys, insurers and
agents, and its successors, heirs and assigns, harmless from and against any and
all losses, liabilities, claims, costs, damages and expenses (including, without
limitation, fines, forfeitures, attorneys' fees, disbursements and
administrative or court costs) arising directly or indirectly out of any breach
or alleged breach of its representations and warranties, as set forth in Section
6.1, above, out of any other breach of this Agreement, or out of the negligence
or willful misconduct of AUTOCONNECT in connection with the performance of its
duties hereunder.
7.2 By EVRI. EVRI agrees to indemnify, defend and forever hold AUTOCONNECT and
AUTOCONNECT Affiliates (and each of their parents, subsidiaries or entities
under common ownership or control), and all of their respective present and
former officers, members, shareholders, directors, employees, representatives,
attorneys, insurers and agents, and its successors, heirs and assigns, harmless
from and against any and all losses, liabilities, claims, costs, damages and
expenses (including, without limitation, fines, forfeitures, attorneys' fees,
disbursements and administrative or court costs) arising directly or indirectly
out of any claim or complaint concerning the information and services provided
by EVRI or by third parties to users accessing such information and services
through the Co-Branded EVRI Site, or arising directly or indirectly out of any
breach or alleged breach of its representations and warranties, as set forth in
Section 6.2, above, out of any other breach of this Agreement or out of the
negligence or willful misconduct of EVRI in connection with the performance of
its duties hereunder.
7.3 A party entitled to indemnification pursuant to this Agreement shall, with
respect to any claim made against such indemnified party for which
indemnification is available, notify the other party in writing of the nature of
the claim as soon as practicable but not more than ten days after the
indemnified party receives notice of the assertion of the claim. (The failure by
an indemnified party to give notice as provided, above, shall not relieve the
indemnifying party of its obligations under this Section 7.3, except to the
extent that the failure results in the failure of actual notice and the
indemnifying party is damaged as a result of the failure to give notice. Upon
receipt of notice of the assertion of a claim, the indemnifying party shall
employ counsel reasonably acceptable to the indemnified party and shall assume
the defense of the claim. The indemnified party shall have the right to employ
separate counsel and to participate in (but not control) any such action, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (a) the employment of counsel by the indemnified counsel has been
authorized by the indemnifying party, (b) the indemnified party has been advised
by its counsel in writing that there is a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense of
the action (in which case the indemnifying party shall not have the right to
direct the defense of the action on behalf of the indemnified party), or (c) the
indemnifying party has not in fact employed counsel to assume the defense of the
action within a reasonable time following receipt of the notice given pursuant
to this Section 7.3, in each of which cases the fees and expenses of such
counsel shall be at the expense of the indemnifying party. An indemnifying party
shall not be liable for any settlement of an action effected without its written
consent (which consent shall not be unreasonably withheld), nor shall an
indemnifying party settle any such action without the written consent of the
indemnified party (which consent shall not be unreasonably withheld). No
indemnifying party will consent to the entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to the indemnified party a release from all liability
with respect to the claim. Each party shall cooperate in the defense of any
claim for which indemnification is available and shall furnish such records,
information, testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may reasonably be requested by the other party.
8. Miscellaneous Provisions.
8.1 Notices. All notices, requests, demands, consents, approvals, designations
and other communications called for or contemplated by this Agreement shall be
in writing and shall be deemed given to the party to whom addressed (i) when
delivered to such party by hand or sent by facsimile transmission (ii) one
business day after being sent to such party by overnight courier, or (iii) three
business days after being sent to such party by registered or certified mail
(return receipt requested, postage prepaid), in each case at the address for
such party set forth above (or at such other address as such party may designate
by notice in the manner aforesaid).
8.2 Entire Agreement, Waivers, Etc. This Agreement constitutes the sole and
entire agreement and understanding between the parties hereto, and supersedes
all other prior agreements and understandings among them or any of them with
respect to the subject matter hereof. No delay on the part of a party in
exercising, or partial exercise of, any right, power or privilege hereunder
shall operate as a waiver of any privilege or right hereunder or preclude any
other or further exercise of any other right, power or privilege. This Agreement
may not be amended except by a written agreement executed by the party to be
bound thereby.
8.3 Counterparts. This Agreement may be executed in counterparts, both of which
together shall constitute one and the same agreement and each of which shall be
deemed an original.
8.4 Remedies, Specific Performance. No remedy specifically conferred by any of
the provisions of this Agreement is intended to be exclusive of any other
remedy, each and every remedy shall be cumulative and shall be in addition to
every other remedy conferred hereunder or now or hereafter existing at law, in
equity, or by statute or otherwise, and the election by a party of one or more
remedies shall not constitute a waiver of such party's right to pursue any other
available remedy or remedies. The parties hereto expressly acknowledge and agree
that irreparable damage would occur in the event that any provision of this
Agreement were not performed in accordance with the terms hereof, and that,
accordingly, each party hereto shall be entitled to specific performance of the
terms hereof, in addition to any other remedy available to such party.
8.5 Rules of Construction. No provision of this Agreement shall be construed in
favor of or against any of the parties hereto by reason of the extent to which
any such party or its counsel participated in the drafting thereof. References
to Sections herein include all subsections subsidiary to the Section referred
to. Section headings herein have been inserted for convenience of reference
only, are not a part of this Agreement and shall not be used in construing this
Agreement.
8.6 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such state.
8.7 Severability. if any provision of this agreement is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable, the remaining
provisions hereof shall in no way be affected and shall remain in full force and
effect.
8.8 WAIVER OF JURY TRIAL RIGHTS. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
POWER, RIGHT, PRIVILEGE OR REMEDY UNDER OR IN CONNECTION WITH THE AGREEMENT, AND
AGREES THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
8.9 No Third Party Beneficiaries. It is not the intention of either of the
parties to confer, and the Agreement shall not be construed as to confer, any
right or benefit upon any person or entity other than the parties and their
successors and permitted assigns; and no such other person entity shall have any
rights or remedies against either of the parties hereto under or by virtue of
this Agreement.
8.10 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, OR
PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER
LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT
PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
8.11 Confidentiality. Both EVRI and AUTOCONNECT acknowledge that confidential
information, including trade secrets, strategies, processes, computer programs
and contractual information, may be disclosed to the other party during the
course of the Agreement. Each party agrees that it shall take reasonable steps,
at least substantially equivalent to the steps it takes to protect its own
proprietary information, during the term of this Agreement and for a period of
three years following expiration or termination of this Agreement, to prevent
the duplication or disclosure of confidential information, other than, by or to
its employees or agents who must have access to the confidential information to
perform such party's obligations hereunder, who shall each agree to comply with
this Section 5 of this Agreement.
8.12 Press Releases. Both parties recognize the value and importance of clear,
accurate and consistent public communications regarding the relationship
contemplated in this Agreement. Accordingly, EVRI and AUTOCONNECT each agrees
that it shall not make any public announcement regarding the cooperative
relationship described in this Agreement without the prior approval of the
other, both as to timing and substance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
ELECTRONIC VEHICLE AUTOCONNECT L.L.C.
REMARKETING, INC.
By: /s/ By: /s/
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Its: Its:
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