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EXHIBIT 10.5
DATA CONTRIBUTION AGREEMENT
THIS DATA CONTRIBUTION AGREEMENT (this "Agreement") is made as of
August 20, 1999 (the "Effective Date"), by and between AutoConnect, L.L.C., a
Delaware limited liability company ("AutoConnect"), and ADP, Inc., a Delaware
corporation ("ADP").
WHEREAS, AutoConnect operates a consumer-oriented shopping and
information service for buyers and sellers of automobiles and light trucks, and
provides other online services to the automotive industry; and
WHEREAS, ADP provides transaction systems, data products and
professional services to automobile and truck dealers and manufacturers; and
WHEREAS, ADP is a member of AutoConnect pursuant to the Amended and
Restated Limited Liability Company Agreement by and among ADP, Manheim Auctions,
Inc., TPI, Inc., LTM Company, L.P., ATC Holdings, Inc., a Nevada corporation and
KPCB Holdings, Inc., as nominee, dated as of August 20, 1999 (the "Restated LLC
Agreement"); and
WHEREAS, contemporaneously with the execution of this Agreement,
AutoConnect will change its name to XxxxXxxxxx.xxx, LLC; and
WHEREAS, AutoConnect and ADP mutually desire that ADP shall provide
certain data to AutoConnect, subject to the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by AutoConnect and ADP, and
intending legally to be bound, AutoConnect and ADP hereby agree as follows:
ARTICLE 1 OBLIGATIONS OF ADP
1.1 Polling Services. Subject to appropriate dealer consent, which
consent ADP shall use commercially reasonable efforts to obtain, ADP shall
maintain and continue to develop the capability to poll the used vehicle
inventory databases of its dealer management system dealer clients and those of
Xxxxxxxx & Xxxxxxxx ("R&R") for used vehicle data as follows:
(a) ADP shall provide staff, resources and equipment
reasonably necessary for soliciting dealers for polling services,
establishing polling protocols and connections, and performing Polling
Events (as defined in Section 2.3, below).
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(b) ADP shall provide both standard polling and, where
reasonably necessary to poll successfully particular participating
dealers, custom polling. For the purposes of this Agreement, "standard"
polling is the polling of the used and new vehicle inventory of each
participating dealer location at least once each week with relevant
fields in a manner that includes utilizes up-front coding to align the
dealer's data management system and AutoConnect's file format,
including coding accommodations for multi-DMS dealers. "Custom" polling
requires intervention by ADP personnel to manipulate polled data before
it is provided to AutoConnect.
(c) ADP shall deliver vehicle data obtained from polling, to
consist of both text listings (including at least the following fields:
make; model; body type; body subtype; year; mileage; color; price and
vehicle identification number; and including vehicle options to the
extent available) and digital photo images of vehicles to the extent
available, to AutoConnect on a daily basis in a format to be reasonably
determined by AutoConnect in consultation with ADP.
(d) ADP shall provide quality assurance with respect to its
polling services reasonably calculated to ensure that such polling
services shall consistently be both timely and accurate, including (i)
proactive identification and resolution of polling problems before
dealers bring them to the attention of AutoConnect; (ii) appropriate
incentives for its polling groups' managers and employees to increase
the number of polled dealers and ensure that all dealers receive high
quality and timely polling services; and (iii) weekly reports provided
to AutoConnect on the operation of ADP's polling groups, including
their productivity, polling errors, problem dealers (as defined in
Section 3.1(a), below), staffing levels and employee turnover.
1.2 License to Use Vehicle Listings and Images. ADP hereby grants
to AutoConnect a non-exclusive and fully paid up license, non-transferable
except in accordance with the provisions in Section 6.7 below, to use, copy,
reproduce, transmit, display and distribute, and create derivative works from,
the used vehicle inventory data acquired by ADP through its polling activities
and delivered to AutoConnect pursuant to this Agreement; provided, however, that
AutoConnect shall not use any such data to provide vehicle valuation products or
services to any third party (other than to consumers via AutoConnect's consumer
oriented Internet vehicle valuation product), nor shall AutoConnect permit any
third party to use any such data to provide vehicle valuation products or
services to any other person (including to consumers), nor shall AutoConnect
provide or make any such data available, directly or indirectly, to any of the
following persons: CCC Information Services, Inc., Xxxxxxxx International, NADA,
XxxXxxx Xxxxxx ("Red Book"), Black Book Enterprises, Xxxxx Blue Book, Edmunds
Publishing, Microsoft, or any company which markets or provides automated
dealership management and operations computer systems and/or software to
automobile or truck dealers (including, without limitation, Xxxxxxxx & Xxxxxxxx,
Universal Computer Systems, EDS,
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Key, IBM, Karmak, AutoByTel, AutoSoft, CAT, Cendant (i.e., AutoVantage),
Kerridge Computer Company Limited, Data Consultants, Inc., Advents, XxXxxxx
Data, Xxxxxxxx Consulting, Deloitte & Touche and Xxxx Systems). AutoConnect
shall include a notice (reasonably acceptable to ADP) on its Internet web site
which states that the used vehicle data displayed on such site is for consumer
use only. In addition, AutoConnect agrees to use commercially reasonable efforts
to design and maintain the architecture of the AutoConnect Internet web site so
as to minimize the ability of third parties to extract the data provided by ADP
from the site in large quantities within short periods of time.
1.3 Trade Shows. At AutoConnect's request, ADP shall provide space
within its booths (subject to availability of such space) and computer
presentation equipment for use by AutoConnect at any major automobile dealer
trade shows at which ADP obtains vendor booth space, subject to AutoConnect's
payment of its pro rata share (to be agreed upon by AutoConnect and ADP in
advance) of ADP's actual costs of obtaining the booth space and providing such
computer equipment. ADP shall cooperate with AutoConnect by providing
information as far in advance as practicable concerning its plans to obtain
vendor booth space at dealer trade shows and the anticipated costs of the booth
space and computer equipment.
1.4 Major Account Marketing Support. At AutoConnect's request, ADP
shall make its manufacturer relations personnel reasonably available to
coordinate with AutoConnect on the sales of retail oriented Internet
applications to the automotive original equipment manufacturers ("OEMs"), to
facilitate sales contacts between AutoConnect and OEMs, and to support
AutoConnect's proposals to OEMs. ADP will not be entitled to share in any
revenues received by AutoConnect in connection with sales of AutoConnect
applications to OEMs (other than in ADP's capacity as a member of AutoConnect
and pursuant to the AutoConnect LLC Agreement), but ADP will retain all revenues
it may receive from OEMs for Internet services provided by ADP to OEMs that do
not include AutoConnect applications.
1.5 Preferred Provider Status for AutoConnect. ADP hereby
designates AutoConnect as ADP's preferred third-party provider of Internet-based
electronic commerce ("e-commerce") services by which consumers provide
information to potential providers of automobile financing, and for personalized
consumer web pages that reside in dealer web sites, and service scheduling and
parts ordering applications that take place through dealer web sites. As ADP's
preferred provider, AutoConnect shall have the first opportunity to collaborate
with ADP on the development of any such e-commerce services. AutoConnect shall
also be provided a first right of refusal to provide such automotive-related
e-commerce services on commercial terms no less favorable than those offered by
ADP to any other provider or potential provider of e-commerce services, as
follows: In the event ADP intends to enter into any arrangement with any other
provider of e-commerce services by which consumers provide information to
potential providers of automobile financing, and for personalized web pages that
reside in dealer web sites, and/or service scheduling and parts ordering
applications that take place
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through dealer web sites, ADP shall first reduce the terms of such arrangement
to writing and provide them to AutoConnect in the form of an offer by ADP to
enter into such an arrangement with AutoConnect. The offer shall also inform
AutoConnect of the identity of the contemplated other provider. AutoConnect
shall then have ten (10) business days from the date of its receipt of ADP's
offer (the "Acceptance Period") to accept the offer and enter into the
arrangement with ADP on the specified terms. If AutoConnect does not accept
ADP's offer within the Acceptance Period, ADP shall be free to enter into the
arrangement with the other provider on the same terms as were offered to
AutoConnect. However, if ADP does not enter into such arrangement with the other
provider on the same terms within thirty (30) days from the end of the
Acceptance Period, AutoConnect's right of first refusal shall once again apply
to such arrangement.
1.6 Provision of Financial Statements. In the event that
AutoConnect determines that it is required to provide financial statements
related to the assets that were contributed to or acquired by AutoConnect from
ADP in connection with the formation of AutoConnect in December, 1997, in order
to comply with federal or state securities law requirements, ADP shall furnish,
or cause to be furnished, to the Company such access to ADP personnel and
accountants and use reasonable efforts to furnish or cause to be furnished such
information as AutoConnect may reasonably request in order to prepare audited
financial statements (including a balance sheet and statements of income and
cash flows) related to the business represented by the Contributed Assets for
such fiscal year periods and unaudited financial statements for all interim
periods as may be specified under applicable provisions of Rules 3-01 and 3-02
of Regulation S-X promulgated by the Securities and Exchange Commission (the
"SEC"). In connection with the foregoing, ADP agrees to provide AutoConnect and
its representatives and auditors with reasonable access during normal business
hours to ADP's financial and accounting records. In addition, ADP shall direct
its independent certified public accountants to cooperate with AutoConnect for
purposes of compiling all available financial information that is requested by
AutoConnect or AutoConnect's accountants (and to assist AutoConnect in its
efforts to develop such information) and that is required in order to comply
with federal or state securities law requirements. AutoConnect shall pay or
absorb all fees, costs and expenses related to ADP's compliance with the
foregoing covenants including, without limitation, the fees, costs and expenses
of any accountants engaged by AutoConnect to audit the financial statements and
the fees, costs and expenses of ADP's accountants. Notwithstanding anything to
the contrary set forth herein, AutoConnect shall use its best efforts to limit
the necessity for such financial statements and scope thereof (e.g., AutoConnect
shall solicit opinions concerning the applicability of the SEC S-X rules, the
time periods required to be covered, if any, and the propriety of using limited
special purpose reports in lieu of full financial statements) and to limit the
disruption caused to ADP's business by such audit. ADP shall have no liability
to AutoConnect, any of its members or any successor corporation or its
shareholders if the SEC declines to permit AutoConnect to include in its
securities filings the statements/reports that are prepared or if ADP does not
have all information necessary to prepare such financial statements. ADP also
hereby disclaims any liability
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to third parties arising out of AutoConnect's use of any such statements/reports
in securities filings.
ARTICLE 2 PAYMENT FOR POLLING SERVICES
2.1 Calculation of Payment. AutoConnect shall pay ADP for
inventory polling services a polling services fee as follows:
(a) For the period from the Effective Date through June 30,
2000, AutoConnect shall pay ADP Three Dollars and Fifty Cents ($3.50)
for each successful Polling Event, and Sixty Dollars ($60.00) for
initial setup of each new participating dealer included in ADP's
polling service.
(b) For the period from July 1, 2000 through June 30, 2001,
AutoConnect shall pay ADP Two Dollars and Seventy-Five Cents ($2.75)
for each successful Polling Event, and Sixty Dollars ($60.00) for
initial setup of each new participating dealer included in ADP's
polling service.
(c) AutoConnect and ADP shall negotiate in good faith,
beginning at such time as is reasonably necessary to reach agreement on
or before May 1, 2001 and each May 1 thereafter during the term of this
Agreement, to agree on the polling services fee for each ADP fiscal
year in the term beginning with the year July 1, 2001 through June 30,
2002, based on then-current market rates for such services. If no
agreement on such market rates is reached for any given ADP fiscal
year, the parties shall proceed as follows: (i) in the event that there
are at least two thousand (2,000) participating dealers for the polling
services to be provided by ADP under this Agreement as of the first day
of the ADP fiscal year in question, the fee in effect for the
immediately preceding ADP fiscal year shall continue to apply
throughout the year in question; (ii) in the event that there are fewer
than two thousand (2,000) participating dealers for the polling
services to be provided by ADP under this Agreement as of the May 1
date for the commencement of negotiations prior to the ADP fiscal year
in question, ADP shall not be obligated to provide polling services
during the ADP fiscal year in question so long as the parties cannot
agree on the appropriate polling services fee.
2.2 Payment Process. AutoConnect shall pay the polling services
fee to ADP within thirty (30) days after its receipt of ADP's invoice for such
services provided during each calendar month during the term of the Agreement.
Each invoice shall be accompanied by a report showing the names and number of
successful Polling Events for currently participating dealers and the number of
initial set-ups for new participating dealers during the month in question, as
well as ADP's calculation of the polling services fee due for the month.
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2.3 Polling Event. For the purposes of this Agreement, a "Polling
Event" is a successfully completed upload of used vehicle inventory data from a
dealer's dealer management system ("DMS") and download to ADP's database of the
vehicle data (as specified in Section 1.1(c) above) of the entire inventory in
the dealer's DMS, and delivery of such data to AutoConnect in a format mutually
agreed to by ADP and AutoConnect.
2.4 Records/Access to Records. ADP shall keep full and adequate
records relevant to the number of successful Polling Events, the number of
initial set-ups for new participating dealers, and the calculation of the
polling services fee and shall make such records available for inspection by
representatives of AutoConnect upon reasonable prior written notice. AutoConnect
may exercise its right to inspect the records of ADP no more than once in any
given twelve (12) month period, and such inspection shall not unreasonably
interfere with the business operations of ADP. Any deficiency in payment
discovered in the course of performing such inspection shall be paid to
AutoConnect within thirty (30) days. If deficiencies in payment exceed five
percent (5%), ADP shall reimburse AutoConnect's reasonable out-of-pocket
expenses of that inspection, and AutoConnect shall be entitled to exercise its
right to inspect ADP records a second time during the twelve (12) month period
in question.
ARTICLE 3 OTHER OBLIGATIONS OF AUTOCONNECT
3.1 Exclusive Provider Status for ADP.
(a) AutoConnect hereby designates ADP as AutoConnect's
exclusive provider of inventory polling services for ADP's and R&R's
dealership customers. As AutoConnect's exclusive provider, ADP shall
continue to provide such polling services pursuant to this Agreement so
long as ADP is willing and able to provide such services as
contemplated herein. Notwithstanding the foregoing, however,
AutoConnect may use, develop and/or maintain a polling capability
independent of ADP's in order to poll dealerships that do not have ADP
or R&R dealer management systems. In addition, although AutoConnect
shall use commercially reasonable efforts to encourage all dealerships
utilizing ADP's and R&R's DMS to participate in ADP's polling services,
AutoConnect may also use, develop and/or maintain a polling capability
independent of ADP's for dealerships that ADP is not consistently
polling for technical or operational reasons, and for dealerships that
do not agree to be polled by ADP. The process with respect to
dealerships that ADP is not consistently polling for technical or
operational reasons shall be as follows: In the event that any dealer
is not successfully polled by ADP at least twice in any five-week
period, ADP shall report the dealer as a "problem dealer" in its next
weekly report delivered to AutoConnect pursuant to Section 1.1(d)(iii),
above. ADP shall then have thirty (30) days from the date of such
weekly report to implement a polling solution for the problem dealer.
If ADP is not able successfully to poll the problem dealer
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within such thirty (30) day period, AutoConnect shall be entitled, for
sixty (60) days thereafter, to develop its own polling capability for
the problem dealer. If AutoConnect is not able successfully to poll the
problem dealer within such sixty (60) day period, ADP shall once again
have the right under this Section 3.1(a) to be the exclusive provider
of inventory polling services for the dealer. Once AutoConnect has
begun successfully to poll any dealership through the independent
capability contemplated by this Section 3.1(a), AutoConnect shall
thereafter, for the term of this Agreement, be entitled to continue to
poll such dealership without obligation to encourage such dealership to
participate in ADP's polling services.
(b) AutoConnect also hereby designates ADP as AutoConnect's
preferred provider of e-commerce services, so long as such e-commerce
services involve direct connection to a dealer's DMS or access to or
use of data residing in a dealer's DMS. As AutoConnect's preferred
provider, ADP shall have the first opportunity to collaborate with
AutoConnect on the development of any such e-commerce applications. ADP
shall also be provided a first right of refusal to provide such
e-commerce services on commercial terms no less favorable than those
offered by AutoConnect to any other provider or potential provider of
similar e-commerce services, as follows: In the event AutoConnect
intends to enter into any arrangement with any other provider of such
e-commerce services, AutoConnect shall first reduce the terms of such
arrangement to writing and provide them to ADP in the form of an offer
by AutoConnect to enter into such an arrangement with ADP. The offer
shall also inform ADP of the identity of the contemplated other
provider. ADP shall then have ten (10) business days from the date of
its receipt of AutoConnect's offer (the "Acceptance Period") to accept
the offer and enter into the arrangement with AutoConnect on the
specified terms. If ADP does not accept AutoConnect's offer within the
Acceptance Period, AutoConnect shall be free to enter into the
arrangement with the other provider on the same terms as were offered
to ADP. However, if AutoConnect does not enter into such arrangement
with the other provider on the same terms within thirty (30) days from
the end of the Acceptance Period, ADP's right of first refusal shall
once again apply to such arrangement.
3.2 Provision and License to Use AutoConnect Data. AutoConnect
shall at ADP's request provide to ADP, and AutoConnect hereby grants to ADP a
non-exclusive, fully paid up and non-transferable license to use, copy,
reproduce, transmit, display and distribute, and create derivative works from,
the vehicle data supplied to AutoConnect by Manheim Auctions, Inc. ("Manheim")
(including data from Tracker and Manheim Online dealers) and by dealers who
provide vehicle data directly to AutoConnect (including but not limited to
AutoNation and AdManager users), for and in connection with ADP's (and/or its
affiliates') Total Vehicle Loss Program for insurance companies.
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3.3 Training of ADP Staff. AutoConnect shall provide periodic
training of ADP's staff on AutoConnect's dealer marketing plans and practices as
such plans and practices relate to inventory polling.
3.4 Promotion of ADP Polling Services. AutoConnect shall use
commercially reasonable efforts to promote ADP's polling services for
AutoConnect dealer customers utilizing ADP's and R&R's DMS. AutoConnect shall
also: (a) provide market support for ADP's polling services, making its sales
personnel reasonably available to coordinate with ADP on the promotion of
polling services; and (b) facilitate contacts between ADP and AutoConnect's
dealer customers.
3.5 Stock Options for Sales Incentives. AutoConnect may, at its
own expense, provide special stock options (or similar instruments) for selected
ADP executives and general managers as incentives for their sales and marketing
efforts on behalf of AutoConnect.
ARTICLE 4 EXCLUSIVITY
4.1 By ADP.
(a) So long as ADP is providing polling services to
AutoConnect pursuant to this Agreement for at least three hundred (300)
dealers, ADP shall not provide used vehicle inventory polling services
for any automotive Internet site that aggregates used vehicle inventory
data for consumer use or sells or advertises cars to retail customers.
During the term of this Agreement, ADP shall not sell, promote, or
otherwise solicit business from dealers for retail-oriented dealer web
sites on the Internet or create, provide marketing and sales support
to, or make equity investments in any other retail oriented automotive
Internet web site, in each case, that contains used vehicle inventory
data aggregated from multiple dealers or from multiple OEMs. ADP shall
also not create its own consumer-oriented automotive "aggregator site"
that would compete with AutoConnect (it being agreed that an Internet
automotive "aggregator site" that is oriented towards non-U.S.
consumers shall not be considered competitive with AutoConnect), nor
shall ADP assist any third party in creating such a site, provided,
however, that the foregoing prohibition shall not apply to ADP's
license of the Marketing Advisor Software application as described in
Section 4.1(b), below.
(b) Marketing Advisor is a database publishing tool and
multimedia advertising software application which ADP has licensed from
Gannett Media Technologies, Inc. for sublicense by ADP to auto dealers,
and pursuant to which auto dealers may enter vehicle inventory data in
Marketing Advisor's automotive database for use in one or more of the
following modules: a print advertising module, pursuant to which
Marketing Advisor uses such vehicle data to automate the production of
print ads and other print-based marketing materials; an auto
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text/fax back module, pursuant to which dealers may set up telephone
and audio text systems to provide auto inventory information via touch
tone telephone; and an Internet module, pursuant to which a dealer may
export auto inventory photo and text information to a third party
server capable of providing an integrated search engine and
database-driving web pages for use in Internet web sites. ADP agrees
that although the prohibition in Section 4.1(a), above, shall not
prohibit ADP from sublicensing Marketing Advisor to auto dealers, ADP
shall not modify or enhance the client Internet module of such
application in a manner that permits a dealer to use such application
to more easily and effectively deliver a dealer's entire used vehicle
inventory at one time or in a very short period of time to a third
party server for use in Internet web sites.
(c) Notwithstanding the foregoing, ADP may provide the
following products and services as follows: (i) ADP may provide used
vehicle inventory polling services directly to individual OEMs for
their own retail Internet web sites and (absent any other agreement to
the contrary with AutoConnect) shall retain all revenues from the
provision of such services. AutoConnect agrees to coordinate, at ADP's
request and expense, the delivery of such inventory data to such OEMs;
(ii) ADP may provide polled used vehicle data to any third parties for
uses that do not involve advertising or otherwise listing such vehicles
for sale to consumers via a retail oriented automotive aggregator
Internet web site; and (iii) ADP may license or otherwise provide any
software applications and/or functionality for use on or in conjunction
with retail-oriented dealer web sites operated by third parties so long
as such applications and/or functionality (such as personalized
customer web pages and service scheduling) do not facilitate or
otherwise involve the listing of a dealer's used car inventory.
4.2 By AutoConnect. AutoConnect shall not provide vehicle data to
any of ADP's competitors in the total loss vehicle valuation market, including
but not limited to CCC Information Services, Inc., Xxxxxxxx International, NADA,
XxxXxxx Xxxxxx ("Red Book"), Black Book Enterprises, Xxxxx Blue Book, Edmunds
Publishing, Microsoft, or any company which markets or provides automated
dealership management and operations computer systems and/or software to
automobile or truck dealers (including, without limitation, Xxxxxxxx & Xxxxxxxx,
Universal Computer Systems, EDS, Key, IBM, Karmak, AutoByTel, AutoSoft, CAT,
Cendant (i.e., AutoVantage), Kerridge Computer Company Limited, Data
Consultants, Inc., Advents, XxXxxxx Data, Xxxxxxxx Consulting, Deloitte & Touche
and Xxxx Systems).
ARTICLE 5 TERM
5.1 Term. Unless terminated as provided in Section 5.2 below, the
term of this Agreement shall be ten (10) years commencing on the Effective Date,
and shall be automatically renewed for additional ten-year terms unless either
party gives written
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notice to the other, at least sixty (60) days prior to the end of the term or
any renewal term, that it does not wish to renew this Agreement.
5.2 Termination. Either party may terminate this Agreement and, in
addition to all other rights and remedies it may have under law or equity, be
relieved of all further obligations hereunder, in the event of a material breach
of the Agreement by the other party if such breach is not cured within thirty
(30) days of the receipt of written notice of such breach by such breaching
party. In addition, the parties may terminate this Agreement for any reason, or
for no reason, as follows:
(a) AutoConnect may terminate this Agreement as of the end of
ADP fiscal years concluding June 30, 2000, June 30, 2001 or June 30,
2002, upon providing at least sixty (60) days prior written notice to
ADP; or after January 1, 2003 at any time by providing at least six (6)
months prior written notice to ADP.
(b) ADP may terminate this Agreement at any time after January
1, 2003, by providing at least six (6) months prior written notice to
AutoConnect.
ARTICLE 6 MISCELLANEOUS
6.1 Ownership of Vehicle Data and Images and Database. As between
AutoConnect and ADP, and subject to the license granted to AutoConnect in this
Agreement, ADP shall be the owner of the vehicle data and images it obtains
through the dealer inventory polling process contemplated by this Agreement. As
between AutoConnect and ADP, and subject to the restrictions on its use of
vehicle data and images it obtains pursuant to the license granted by ADP in
this Agreement, AutoConnect is the owner of the database of vehicle data and
images obtained, compiled and used by AutoConnect in connection with its online
vehicle information service.
6.2 Representations and Warranties.
(a) AutoConnect and ADP each represents and warrants to the
other that: (i) it has the right, power and authority to enter into
this Agreement and to perform all of its obligations hereunder; and
(ii) it has the right to grant the licenses granted by it hereunder.
(b) EXCEPT AS STATED IN SECTION 6.2(A), ABOVE, NEITHER PARTY
MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, NATURE OR
DESCRIPTION, EXPRESS OR IMPLIED, WITH RESPECT TO THE VEHICLE DATA AND
IMAGES OR OTHER DELIVERABLES PROVIDED BY EITHER PARTY TO THE OTHER
PARTY, WHICH VEHICLE DATA AND IMAGES AND OTHER DELIVERABLES ARE
PROVIDED "AS IS." EACH PARTY SPECIFICALLY DISCLAIMS ANY SUCH
REPRESENTATION OR WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY OR FITNESS
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FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM A
COURSE OF DEALING OR A COURSE OF PERFORMANCE.
6.3 Indemnification.
(a) AutoConnect and ADP each agrees to indemnify, defend and
forever hold the other (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 6.2, above, or out of any other
breach of this Agreement.
(b) 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 6.3,
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 6.3, 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
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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.
6.4 Limitation on Liability. Except with respect to
indemnification obligations under Section 6.3, above, in the event either party
incurs any liability to the other due to any performance or nonperformance of
any term of this Agreement, the liability therefor shall be limited to actual
damages (actual damages being defined as the actual out-of-pocket damages or
losses sustained by the damaged party and excluding indirect, special,
consequential or punitive damages or lost profits).
6.5 Dispute Resolution. The parties intend to minimize the
potential for litigation or other formal means of enforcing this Agreement.
Accordingly, the parties agree that the dispute resolution procedures set forth
below shall be invoked prior to either party instituting legal proceedings
against the other.
(a) A party (the "Complaining Party") that believes that the
other (the "Responding Party") is in breach of this Agreement in any
particular, shall deliver written notification to the Responding Party,
setting forth in reasonable detail the breach for which the Complaining
Party seeks redress, along with a specific request for relief. The
Responding Party shall have 10 business days from receipt to provide a
written reply. The reply shall contain a response to the allegations
contained in the notice or an agreement to provide the relief
requested. Upon receipt of the reply, the Complaining Party shall
provide written notice to the Responding Party either that the dispute
has been resolved satisfactorily or that the Complaining Party is
invoking the escalation procedure set forth in Section 6.5(b).
(b) In the event that the parties are unable to resolve a
dispute in the manner described in Section 6.5(a), each party agrees to
designate a single representative to attempt to resolve the dispute.
Each party's representative shall be a senior executive (the equivalent
of a senior vice president or higher) who shall have all necessary
authority to bind the party contractually and to resolve the dispute.
The designated representatives shall meet for a minimum of eight hours
at a location to be mutually agreed upon by the parties, in an effort
to resolve the dispute. In the event that mutual agreement regarding
the location of such meeting cannot be reached, the meeting will take
place at AutoConnect's offices in Atlanta, Georgia.
6.6 Further Assurances. Each party hereto shall execute and
deliver all such other documents and do all such other acts and things as may be
reasonably necessary to more fully effectuate this Agreement and the
transactions contemplated hereby.
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6.7 Non-Disclosure. Neither AutoConnect nor ADP shall disclose to
any person or entity, directly or indirectly, without the prior approval of the
other, any non-public information relating to the other party obtained by virtue
of this Agreement, except on a confidential basis to its business, legal and
financial advisors or as required to be disclosed under applicable law or by
legal process.
6.8 Third Parties. None of the provisions of this Agreement shall
be for the benefit of, or enforceable by, any employee or creditor of any party
hereto, nor any other person not a party hereto.
6.9 Force Majeure. Neither party shall be deemed in default or
otherwise liable under this Agreement due to its inability to perform its
obligations by reason of any fire, earthquake, flood, substantial snowstorm,
epidemic, accident, explosion, casualty, strike, lockout, labor controversy,
riot, civil disturbance, act of public enemy, embargo, war, act of God, or any
municipal, county, state or national ordinance or law, or any executive,
administrative or judicial order (which order is not the result of any act or
omission which would constitute a default hereunder), or any failure or delay of
any transportation, power, or communications system or any other or similar
cause beyond that party's control.
6.10 Governing Law/Construction. This Agreement and all matters or
issues related thereto shall be governed by the laws of the State of Delaware
without regard to its choice of law rules. The parties acknowledge and agree
that they have been represented by counsel and that each of the parties has
participated in the drafting of this Agreement. Accordingly, it is the intention
and agreement of the parties that the language, terms and conditions of this
Agreement are not to be construed in any way against or in favor of any party
hereto by reason of the responsibilities in connection with the preparation of
this Agreement.
6.11 Assignment/Benefit and Binding Effect. Neither party may
assign its rights and obligations under this Agreement except with the prior
written consent of the other party, which consent may not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing sentence, either
party may assign or transfer its rights and obligations under this Agreement in
connection with a change in control of the party, or the sale or transfer of all
or substantially all of the business or assets of the party, or to any entity
under common ownership or control with such party, upon notice to the other
party, provided that the assignee agrees to assume all of the assigning party's
obligations under this Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
6.12 Relationship of Parties. Neither this Agreement nor the
cooperation of the parties contemplated herein shall be deemed or construed to
create any partnership, joint venture or agency relationship between AutoConnect
and ADP. Neither party is, nor shall either party hold itself out to be, vested
with any power or right to bind the other party contractually or to act on
behalf of the other party as a broker, agent or otherwise.
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6.13 Captions/Severability. The captions, section numbers and index
appearing in this Agreement are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or intent of such sections
or articles of this Agreement, nor in any way affect this Agreement. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement.
In the event that any provision of this Agreement is determined to be invalid,
unenforceable or otherwise illegal, such provision shall be deemed restated, in
accordance with applicable law, to reflect as nearly as possible the original
intentions of the parties, and the remainder of the Agreement shall be in full
force and effect.
6.14 Waiver. No term or condition of this Agreement shall be deemed
waived, and no breach shall be deemed excused, unless such waiver or excuse is
in writing and is executed by the party against whom such waiver or excuse is
claimed. Except as set forth in this Agreement, all rights, powers and remedies
given to the parties under this Agreement are cumulative and not alternative,
and are in addition to all statutes or rules of law.
6.15 Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties with regard to the subject matter hereof,
and supersedes all prior and contemporaneous oral or written agreements and
representations. Any amendment of this Agreement shall be in writing and signed
by both parties.
6.16 Survival of Termination. The obligations of the parties under
this Agreement that by their nature would continue beyond expiration,
termination or cancellation of this Agreement (including, without limitation,
Sections 1.2, 2.4, 3.2, 6.1, 6.2, 6.3, 6.4 and 6.7) shall survive any such
expiration, termination or cancellation.
6.17 Notices. Notices and other communications hereunder shall be
(a) in writing; (b) delivered by telecopy, by commercial overnight or same-day
delivery service with all delivery costs paid by sender, or by registered or
certified mail with postage prepaid, return receipt requested; (c) deemed given
on the date and at the time (if recorded) of delivery by the commercial delivery
service, as shown in the records thereof (if delivered by commercial overnight
or same-day delivery service), or on the date shown on the return receipt (if
delivered by registered or certified mail); and (d) addressed to the parties at
their addresses specified on the signature page to this Agreement (or at such
other address for a party as shall be specified by like notice).
6.18 Communications. Both parties recognize the value and
importance of clear, accurate and consistent public communications regarding the
transactions contemplated in this Agreement. Accordingly, the parties shall
agree on the timing and the content of any public announcement regarding the
cooperative relationship described in this Agreement. In addition, the parties
shall jointly prepare written material for use in responding to anticipated
questions that each party will likely receive from the press and public about
their relationship.
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6.19 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same Agreement. The parties may sign
facsimile copies of this Agreement which shall each be deemed originals.
AGREED TO BY THE PARTIES AS OF THE DATE WRITTEN ABOVE.
AUTOCONNECT, L.L.C.
By: /s/ XXXXXX XXXXX
-------------------------------
Name: Xxxxxx Xxxxx
Title: Director
Address for Notices:
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
ADP, INC.
By: /s/ XXXXX XXXXXXXX
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: V.P. Dealer Services
Address for Notices:
Dealer Services Division
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
Phone: 000-000-0000
Fax: 000-000-0000
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