EXHIBIT 10.8
MASTER AGREEMENT FOR CONSULTING SERVICES
DEALERTRACK AGREEMENT NO. 00005
This Master Agreement for Consulting Services ("Agreement") is made as of the
1st day of February, 2001, and is entered into by XxxxxxXxxxx.xxx, Inc.
("DealerTrack"), a Delaware corporation having its principal place of business
located at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 and Chase Manhattan
Automotive Finance Corporation ("Contractor"), a Delaware corporation having its
principal place of business located at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx
00000.
1. Notice
Except as otherwise provided in this Agreement, whenever notice, demand or
other communication shall or may be given to either party in connection
with this Agreement, it shall be in writing and shall be sent by certified
mail, postage prepaid, return receipt requested or by overnight express
carrier, and shall be sent to the following addresses (or to such other
address or addresses as may be from time to time hereinafter designated by
the parties):
If to DealerTrack: XxxxxxXxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Chief Operating Officer
Reference: DealerTrack Agreement No. 00005
If to Contractor: Chase Manhattan Automotive Finance Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
2. Facsimile Copies
The parties agree that facsimiles of fully-executed copies of this
Agreement and any Task Orders shall be deemed originals for all purposes
in connection herewith. All such facsimiles shall be sent to the following
facsimile numbers (or to such other facsimile number or numbers as may be
from time to time hereinafter designated in writing by the parties):
If to DealerTrack: (000) 000-0000
If to Contractor: (000) 000-0000
3. Standard Terms and Conditions
The attached "Standard Terms and Conditions for Master Agreement for
Consulting Services" shall be deemed to be incorporated by reference into
each Task Order entered into by DealerTrack and Contractor speaking as of
the date thereof (and if such incorporating reference is omitted for any
reason, such omission may be remedied at any time by either party, without
additional consideration therefor, as of the effective date of the Task
Order) so long as this Agreement is in effect at the time such Task Order
is executed or is later revived during the term of performance of such
Task Order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
effective as of the day, month and year first written above.
XXXXXXXXXXX.XXX, INC. CHASE MANHATTAN AUTOMOTIVE
FINANCE CORPORATION
By By
---------------- -----------------
Name Name
Title: Title
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STANDARD TERMS AND CONDITIONS
FOR
MASTER AGREEMENT FOR CONSULTING SERVICES
1. SCOPE OF THE AGREEMENT
DealerTrack; DealerTrack's existing or future parent corporation; and the
existing and future direct and indirect subsidiaries of DealerTrack's parent
corporation, other than DealerTrack (collectively, "Subsidiaries"), all of which
may be referred to individually and collectively in this Agreement as
"DealerTrack", may from time to time request Contractor to perform consulting
services. In the event that DealerTrack does so request, and in the event that
Contractor agrees to perform such services, Contractor and DealerTrack shall
complete and execute a document which will be referred to in this Agreement as a
"Task Order". The DealerTrack entity that executes a Task Order shall be the
sole DealerTrack entity obligated with respect to such Task Order. In addition,
in no event shall DealerTrack be deemed to be a guarantor of, or otherwise
responsible for, any obligation of its parent corporation or of any of the
Subsidiaries.
2. SERVICES
Consulting services and Work Product (as that term is defined in section 12.
below) to be provided to DealerTrack by Contractor (collectively, "Services")
shall be governed by the terms set forth herein and such additional terms as are
contained in any Task Order executed by DealerTrack and Contractor. Services to
be performed by Contractor shall be described in each Task Order under the
section entitled "Scope of Work." Contractor understands that prompt performance
by Contractor of all Services is required by DealerTrack in order to enable
DealerTrack to meet its schedules and commitments, and that time is of the
essence for the Services to be provided (including Work Product to be prepared)
by Contractor.
3. CHANGE IN SCOPE OF WORK
DealerTrack may revise the Services set forth in the "Scope of Work" section of
any Task Order in a manner which does not materially vary the nature of
Contractor's work or materially increase the burden on Contractor. Any other
revision to Services may be effected from time to time only pursuant to
DealerTrack's request to Contractor for a quotation based upon the proposed
revision. Such quotation shall be provided by Contractor no more than seven days
after Contractor's receipt of such request, and DealerTrack shall accept or
reject such quotation within seven days from its receipt thereof. Failure by
DealerTrack to affirmatively accept a quotation in writing shall be deemed a
rejection; diligent pursuit of negotiation of a quotation by DealerTrack shall
stay the seven day period for so long as such negotiations are pending.
4. PROJECT MANAGEMENT
DealerTrack shall designate in each Task Order a project manager ("DealerTrack
Project Manager") who shall have overall responsibility for coordination of the
Services with agents and employees of DealerTrack and other consultants.
Contractor shall also appoint and identify to DealerTrack an individual for each
Task Order who shall have overall responsibility for decision-making and
managing Contractor's Personnel assigned to each Task Order under this
Agreement. The term "Contractor's Personnel" shall mean Contractor's employees,
agents, subcontractors and other parties that assist Contractor in Contractor's
performance of Services.
5. PERIOD OF PERFORMANCE
The start date and completion date of Services will be specified in each Task
Order.
6. COMPENSATION FOR SERVICES
Each Task Order shall include a "Fee Schedule". DealerTrack agrees to pay
Contractor for Services rendered in accordance with each Task Order on the basis
of a professional
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unit (day, week or month as described in section 7. below), as set forth in the
Fee Schedule therein, against invoices specifying in reasonable detail the work,
period or milestones for which compensation is sought. All fees set forth in a
Task Order shall remain fixed throughout the period of performance of such Task
Order.
Contractor shall be responsible for the payment of applicable taxes and imposts
levied or based upon the income of Contractor or the fees payable to Contractor
by DealerTrack including, but not limited to, FICA and federal, state and local
income taxes, unemployment insurance taxes and any other employment taxes or
levies.
7. PROFESSIONAL UNIT DEFINED
Contractor will be paid for Services on the basis of a Professional Unit which
will be set forth in the applicable Task Order as a Professional Day,
Professional Week or Professional Month.
A. Payment for Services provided for a "Professional Day" is calculated
according to the following formula:
(i) Except as provided in subsections B. and C. of this section 7. , and
subject to subsections (ii) and (iii) of this subsection A., in
consideration of Contractor's performing Services under a Task Order
for eight hours or more on any calendar day (including, but not limited
to, weekends and holidays), DealerTrack will pay Contractor therefor
the amount described in such Task Order as the amount for a
Professional Day ("Professional Day Amount").
(ii) DealerTrack shall not pay Contractor more than the Professional Day
Amount in consideration of Contractor's performing Services under a
Task Order on any calendar day (including, but not limited to, weekends
and holidays) unless Contractor so performs for more than ten (10)
hours during such day and DealerTrack agrees in writing (before
Contractor begins to so perform during any time that exceeds such ten
(10) hours) that it will pay more than the Professional Day Amount
therefor. In the event that DealerTrack does so agree, DealerTrack will
pay Contractor, in addition to the Professional Day Amount, an amount
determined by multiplying the number of full (but not partial) hours
during such day during which Contractor so performs that exceeds ten
(10) by the number determined by dividing the Professional Day Amount
by eight.
(iii) In the event that Contractor performs Services under a Task Order on
any calendar day (including, but not limited to, weekends and holidays)
for less than eight hours, DealerTrack will pay Contractor an amount
determined by multiplying the number of full (but not partial) hours
during such day during which Contractor so performs by the number
determined by dividing the Professional Day Amount by eight.
B. Payment for Services provided for a "Professional Week" is calculated
according to the following formula:
(i) Except as provided in subsections A. and C. of this section 7., and
subject to subsections (ii) and (iii) of this subsection B., in
consideration of Contractor's performing Services under a Task Order
for forty (40) hours or more in any calendar week (including, but not
limited to, weekends and holidays), DealerTrack will pay Contractor
therefor the amount described in such Task Order as the amount for a
Professional Week ("Professional Week Amount").
(ii) DealerTrack shall not pay Contractor more than the Professional Week
Amount in consideration of Contractor's performing Services under a
Task Order in any calendar week (including, but not limited to,
weekends and holidays) unless Contractor so performs for more than
fifty (50) hours during such week and DealerTrack agrees in writing
(before Contractor begins to so perform during any time that exceeds
such fifty (50) hours) that it will pay Contractor, in addition to the
Professional Week Amount, an amount determined by multiplying the
number
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of full (but not partial) hours during such week during which
Contractor so performs that exceeds fifty (50) by the number determined
by dividing the Professional Week Amount by forty (40).
(iii) In the event that Contractor performs Services under a Task Order in
any calendar week (including, but not limited to, weekends and
holidays) for less than forty (40) hours, DealerTrack will pay
Contractor an amount determined by multiplying the number of full (but
not partial) hours during such week during which Contractor so performs
by the number determined by dividing the Professional Week Amount by
forty (40).
C. Payment for Services provided for a "Professional Month" is calculated
according to the following formula:
(i) Except as provided in subsections A. and B. of this section 7., and
subject to subsection (ii) of this subsection C., in the event that any
Task Order indicates that Contractor will be paid on the basis of a
"Professional Month," Contractor shall perform Services for at least
eight hours per day for the number of DealerTrack business days in a
given month, and for such additional time as is appropriate and
consistent with others working on similar DealerTrack projects, and
shall do so pursuant to the terms and conditions described in this
Agreement (including such Task Order) and for the amount described in
such Task Order ("Professional Month Amount").
(ii) In the event that Contractor performs Services under a Task Order
during a given month (including, but not limited to, weekends and
holidays) for less than eight hours times the number of DealerTrack
business days in the month, DealerTrack will pay Contractor an amount
determined by multiplying the number of full (but not partial) hours
during such month during which Contractor so performs by the number
determined by multiplying the number of DealerTrack business days in
the month by eight and then by dividing that number by the Professional
Month Amount.
8. CONTRACTORS PERSONNEL
DealerTrack has entered into this Agreement in material part because Contractor
is a professional and able to service DealerTrack without significant direction
or supervision by DealerTrack. The manner and means of performing the Services
are under the sole control of Contractor. Nothing in any Task Order shall permit
DealerTrack to exercise control over the manner or means by which Contractor
performs its duties except to the extent necessary to coordinate Contractor's
performance in time, space or function with that of other persons engaged by
DealerTrack to achieve a common goal. DealerTrack is interested only in the
results, which are subject to DealerTrack's final approval, obtained under this
Agreement. Contractor shall be solely and entirely responsible for Contractor's
acts (and those of Contractor's Personnel) while this Agreement is in effect
even if Contractor's Personnel are not acting within the scope of employment.
Contractor shall promptly notify DealerTrack upon its learning of any wrongdoing
by Contractor's Personnel.
Contractor acknowledges that it is solely an independent contractor and that
neither it nor any of Contractor's Personnel are agents of, joint ventures with
or employees of DealerTrack. Neither DealerTrack nor Contractor shall have the
authority to bind, or make any representations on behalf of, the other, and
neither party shall hold itself out as such or knowingly permit another to rely
on such belief.
Subject to the requirements of section 9 of this Agreement, Contractor's
Personnel shall conform to the level of technical expertise required by
DealerTrack. Contractor shall, upon DealerTrack's request, furnish requested
information regarding Contractor's Personnel who are to perform Services under
any Task Order, which information is (i) reasonably related to the ability of
Contractor's Personnel to perform Services or (ii)
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Assignment Statements, or of its obligations regarding the selection, placement
and supervision of Contractor's Personnel.
Nothing herein is intended to preclude Contractor's or Contractor's Personnel's
simultaneous or subsequent engagement by third parties, provided only that such
services do not interfere with Contractor's or Contractor's Personnel's
obligations under this Agreement and are consistent with Contractor's and
Contractor's Personnel's duties of confidentiality and the proprietary rights
provisions herein.
Contractor shall advise Contractor's Personnel of their obligations set forth in
this section 8. and shall be responsible for Contractor's Personnel's knowledge,
understanding, agreement and compliance with Contractor's obligations, to the
extent applicable.
Contractor shall maintain procedures to prevent, report and eliminate activity
which would constitute or condone sexual harassment or discrimination.
9. SUBCONTRACTORS
A. Contractor may not use subcontractors to provide Services to DealerTrack
without DealerTrack's prior written approval. Any such subcontractor shall, as a
condition to engagement by Contractor hereunder, agree in writing to adhere to
the provisions of this Agreement including, but not limited to those regarding
conveying title to Work Product to DealerTrack. Contractor shall remain
primarily responsible to DealerTrack for the performance and any liability of
each subcontractor engaged to fulfill any part of a Task Order.
B. Contractor's failure to secure any subcontractor's prior written consent to
the terms of this Agreement prior to commencement of work for Contractor in
performance of Services may preclude delivery to DealerTrack of good title in
any deliverables due to DealerTrack as part of the Services rendered under this
Agreement. Such a failure shall entitle DealerTrack to, inter alia: (i) withhold
and/or demand Contractor's immediate refund of all monies payable or paid to
Contractor under the applicable Task Order and/or (ii) reimbursement of all
costs incurred by DealerTrack in attempting to secure, document and perfect good
title to deliverables hereunder. These remedies are not exclusive. Any
limitations period shall run from DealerTrack's actual notice of Contractor's
use of subcontractors.
10. FACILITIES, ASSISTANCE AND SUPPLIES
In the event that the nature of Services to be provided under a Task Order
reasonably requires Contractor to work on DealerTrack's premises, or DealerTrack
consents to a request therefor, DealerTrack shall provide to Contractor such
facilities, space, office supplies and support as may be reasonably required by
the nature of such Services. Except as provided to the contrary in a Task Order,
Contractor shall otherwise be responsible to provide such supplies, equipment
and facilities as it may require to perform the Services and shall be
responsible for all costs and expenses thereof.
11. TERMINATION
A. In the event that DealerTrack breaches any material provision of this
Agreement and fails to cure such breach within ten (10) days after Contractor
notifies it thereof, Contractor may terminate the Task Order affected by such
breach immediately by notifying DealerTrack thereof. In no event shall
DealerTrack's liability for any breach exceed the amount that would be payable
to Contractor had it fully performed under the applicable Task Order, reduced by
the savings Contractor enjoyed by reason of not having to perform.
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B. In the event that Contractor: (i) breaches any provision contained in section
14. or section 30. of this Agreement; (ii) breaches any material provision of
this Agreement other than those contained in such section 14. and such section
30. and fails to cure such breach within five days after DealerTrack notifies it
thereof; (iii) becomes insolvent; (iv) makes a general assignment for the
benefit of creditors; (v) ceases conducting business in the ordinary course or
(vi) files a petition under bankruptcy law or any other insolvency law providing
for the relief of debtors, or any such petition is filed against it, and
Contractor fails to have such petition lifted or stayed within five days from
the date on which it is entered, DealerTrack, notwithstanding anything to the
contrary contained in this Agreement, may terminate this Agreement or any one or
more Task Orders immediately by notifying Contractor thereof.
C. Notice of termination for breach as set forth in subsections A. and B. of
this section 11 shall state the basis for such termination and the effective
date thereof, which may be the date of notice.
D. DealerTrack may, for any reason or for its convenience, terminate any Task
Order upon notice (written or otherwise) thereof to Contractor. Such notice
shall state the date upon which such termination shall become effective. Subject
to the other terms and conditions contained in this Agreement, DealerTrack shall
pay to Contractor the amount due for completed Services and for expenses
pursuant to the fee schedule of the applicable Task Order through the effective
date of termination.
E. This Agreement shall be effective on the date set forth in the first
paragraph on the first page. This Agreement shall continue in effect thereafter
until DealerTrack or Contractor terminates this Agreement by notifying the other
thereof at least ten (10) business days in advance. No such termination shall be
effective, however, until the last Task Order then in effect expires or is
terminated.
12. WORK PRODUCT; SURRENDER; TITLE
A. For purposes of this Agreement, the term "Work Product" shall mean all work
product developed under any Task Order by Contractor or Contractor's Personnel
(tangible, recorded or otherwise, and without regard to the form of recordation
or state of completion), whether or not such Task Order or the Services are
complete, and the term "Work-in-Progress" at any time shall mean all Work
Product in the hands of Contractor, or Contractor's Personnel, including,
without limitation, working papers, narrative descriptions, reports, data,
tapes, diskettes, software and all materials of similar character.
B. Upon termination of any Task Order or this Agreement, or upon DealerTrack's
earlier request, Contractor shall promptly deliver to DealerTrack all Work
Product, including, but not limited to, all Work-in-Progress (or any lesser part
designated by DealerTrack in writing) and all materials (including, but not
limited to, all Confidential Information) which DealerTrack furnishes to
Contractor in connection with this Agreement (including, but not limited to, any
Task Order). Except as otherwise provided in a Task Order, Contractor shall
retain no part or copy of any Work Product or Work-in-Progress. If requested by
DealerTrack, Contractor shall certify in writing its exacting compliance with
the foregoing provision.
C. Unless otherwise specified in the applicable Task Order, all Work Product,
including, but not limited to, Work-in-Progress, is, or shall be, upon creation
under any Task Order, the exclusive property of DealerTrack. All copyrights,
patents and trade secret rights therein, and the rights to register or apply
therefor, in or relating to Work Product, shall likewise be the exclusive
property of DealerTrack. All Work Product comprising copyrightable subject
matter is agreed to be "work made for hire" pursuant to the Copyright Act of
1976 as from time to time amended. To the extent that any Work
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Product is other than a work made for hire, Contractor hereby makes a
continuing, irrevocable assignment thereof, as created, to DealerTrack.
Contractor and Contractor's Personnel shall, promptly at the request of
DealerTrack, execute any and all documentation reasonably requested by
DealerTrack to evidence such transfer including, without limitation, specific
assignments.
13. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
Contractor hereby represents and warrants to DealerTrack that:
(i) Contractor has the right and authority to enter into this Agreement and to
perform the Services and other obligations as described herein;
(ii) Contractor shall perform all Services in a professional manner and in a
manner consistent with the highest industry standards (and, when a Task Order
defines specifications for deliverables to be provided by Contractor, the
deliverables shall be in conformance with such specifications);
(iii) Contractor shall utilize only personnel who are authorized to work in the
United States for the performance of any Services in the United States;
(iv) neither Contractor in the performance of Services, nor any Work Product,
will infringe on, violate or misappropriate any patent, copyright, trade secret,
trademark or other proprietary right of any entity; and
(v) Contractor shall not charge DealerTrack any fees or charges that are higher
than the fees and charges that Contractor charges its most favored customer for
services that are the same as or similar to the Services.
14. CONFIDENTIALITY
A. Contractor acknowledges and agrees that a duty is owed DealerTrack to
maintain the confidentiality of Confidential Information (as hereafter defined)
provided by DealerTrack or obtained by Contractor or prepared in connection with
the provision of Services under this Agreement (including, but not limited to,
Work Product). Contractor shall treat such information as strictly confidential,
and shall not use, disclose, duplicate, copy, transmit or otherwise disseminate
or permit to be used, disclosed, duplicated, copied, transmitted or otherwise
disseminated at any time prior to or after the termination of this Agreement
such information, except in pursuit of DealerTrack's business or as specifically
permitted in writing by DealerTrack, whether Contractor has such information in
its memory or it is embodied in writing or other physical form. The term
"Confidential Information" shall include:
(i) Any information of DealerTrack not generally known to the public,
including, without limitation, any trade secrets or proprietary
information concerning DealerTrack, its sales, personnel or accounting
procedures, accounts, operations, devices, techniques, methods, business
plans, software (regardless of its state of completion or from of
recordation), data processing programs, data bases, models, product
proposals, internally devised technology, system or network architecture
or topology, secret processes, products, capacities, systems, research
projects and Work Product, and other means used by DealerTrack in the
provision of services to customers and in the conduct of business, whether
developed, acquired or compiled by DealerTrack.
(ii) Any information concerning customers and prospective customers of
DealerTrack, and the affairs and business activities of DealerTrack and/or
its customers, including, without limitation, trade secret and proprietary
information
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concerning accounts, financial standing, investment holdings and other
personal financial data compiled by DealerTrack and/or provided by
customers, specific financial needs and requirements with respect to
investment, financial position and standing, leads, referrals and
references to customers, holding book or customer book pages, assets and
obligations carried in accounts of customers, and all records and
documents concerning the business and affairs of DealerTrack and/or
customers (including copies and originals and any graphic format or
electronic media) whether developed, compiled or acquired by DealerTrack.
(iii) The identity of and any and all confidential or proprietary
information or data belonging to or concerning any DealerTrack customers
and any third parties which is in the possession, custody or control of
DealerTrack.
(iv) Any idea or concept which has been reduced to tangible form, and any
and all work compiled, acquired or produced by Contractor's Personnel in
connection with their assignment to DealerTrack.
B. The obligation to treat information as Confidential Information shall not
apply to information which: (i) is publicly available through no action of
Contractor, (ii) shall have been in Contractor's possession independent of its
relationship with DealerTrack, (iii) shall have been developed by or become
known to Contractor without access to any Confidential Information and outside
the scope of any agreement with DealerTrack, or (iv) shall be obtained
rightfully from third parties not bound by an obligation of confidentiality.
Contractor shall promptly notify DealerTrack in writing of any unauthorized use
or disclosure of any Confidential Information.
C. Contractor shall advise Contractor's Personnel of their obligations under
this section 14. and that such obligations continue even in the event such
Contractor's Personnel leave the employ of Contractor (if applicable) or cease
work on a Task Order, and Contractor shall be responsible for such Contractor's
Personnel's compliance with such obligations and shall require such Contractor's
Personnel to execute DealerTrack's "Consultant Non-Disclosure Agreement".
D. Upon termination of any Task Order or this Agreement, or upon DealerTrack's
earlier request, Contractor shall promptly deliver to DealerTrack all
Confidential Information and any other material which DealerTrack furnishes to
Contractor in connection with this Agreement. Except as provided in this
Agreement, Contractor shall retain no part or copy of any Confidential
Information. If requested by DealerTrack, Contractor shall certify in writing
its exacting compliance with this provision of this Agreement.
E. Contractor shall not disclose, duplicate, copy, transmit or otherwise
disseminate any Confidential Information except to those of Contractor's
Personnel who have a need to know it in order to perform Services under a Task
Order and employees of DealerTrack or employees of other contractors or
consultants, identified to Contractor in writing by the Project Manager of the
relevant Task Order as having requisite clearance and a need to know such
information.
F. In no event shall Contractor use Confidential Information for its own benefit
or that of any third party, nor shall Contractor use Confidential Information to
DealerTrack's detriment; for any purpose other than performance of the Task
Order pursuant to which it is disclosed or later associated; or in any manner
not necessary to performance of such Task Order. Except in fulfillment of a Task
Order expressly anticipating any such action, Contractor shall not interpret,
reverse-engineer, decompile, disassemble, debug or otherwise use any part of any
software to which it is given access by or through DealerTrack in connection
with this Agreement, nor shall Contractor access or generate corresponding
higher level code, access the logic intrinsic thereto; or aid, abide or permit
another to do so.
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G. Contractor agrees that no remedy at law is adequate to compensate DealerTrack
for a breach of the provisions of this section 14. and that DealerTrack
therefore shall be entitled to temporary and permanent injunctive relief against
any such breach, or the threat of any such breach, without having to prove
actual damages or the inadequacy of money damages.
H. This section 14. shall survive the termination of this Agreement, regardless
of the party that terminated this Agreement or the reasons therefor.
15. INTENTIONALLY LEFT BLANK
16. INDEMNIFICATION
A. Contractor shall defend (with counsel satisfactory to DealerTrack),
indemnify and save harmless DealerTrack, its current and former officers,
directors and employees, from any and all claims, expenses (including
reasonable attorneys' fees), damages, suits, costs, losses or judgments
whatsoever, whether groundless or otherwise, and any and all claims
arising from, arising out of or relating to:
(i) any and all claims of bodily injuries (including death, no matter
when death occurs) or damages to property that are caused by, arise
out of, are connected with or result from the negligence or willful
misconduct of Contractor or of Contractor's Personnel;
(ii) any and all employment-related claims arising out of, incident to or
connected with, in whole or in part, this Agreement (including, but
not limited to, a breach by Contractor of any term or condition of
this Agreement or any act or omission of Contractor or Contractor's
Personnel, provided, however, that Contractor shall not be required
to indemnify DealerTrack for that portion of damage attributable to
DealerTrack's gross negligence or willful misconduct and
(iii) any and all claims that the Work Product infringes on, violates or
misappropriates any copyright, patent, trademark, trade secret or
other proprietary right, or involves libel, slander, defamation,
violation of personal rights of privacy, misappropriation of ideas
or rights, literary piracy or plagiarism. Contractor shall do so
whether or not such claim is made in good faith or was known to
DealerTrack at the time that DealerTrack executed this Agreement or
became known to DealerTrack thereafter.
(iv) a material breach of any provision of this Agreement.
B. In the event that DealerTrack is enjoined, or is otherwise prohibited,
from using the Work Product as a result of or in connection with any claim
described in subsection (iii) of subsection A. of this section 16.,
Contractor, at its own expense, shall in addition to fulfilling its
obligations described in subsection A., promptly: (i) procure for
DealerTrack the right to continue using such Work Product; (ii) modify the
Work Product so that it becomes noninfringing without materially altering
its capacity or performance; or (iii) replace the Work Product with
material that is equal in capacity and performance but is noninfringing
C. As a condition to indemnification, DealerTrack will grant Contractor
control of the defense of any action and all negotiation in its settlement
or compromise, provided that any settlement or compromise shall be
reasonably acceptable to DealerTrack, and does not adversely affect any
rights of, or create any obligation on the part of, DealerTrack.
D. If DealerTrack in its sole discretion determines that, due to the
seriousness of the particular issues raised in or the potential material
consequences of any action
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covered by this section 16., separate counsel is required to represent
DealerTrack's interests, DealerTrack may, at its option, select counsel
and conduct the defense of the action at DealerTrack's own expense but
DealerTrack's doing so shall not prejudice in any way DealerTrack's right
to indemnification under this section 16. Further, in such case,
Contractor shall cooperate with DealerTrack in the defense of any such
action. Notwithstanding the foregoing, DealerTrack shall not be required
to incur the expense of separate counsel in circumstances involving a
conflict of interest between representation of Contractor and DealerTrack.
E. This section 16. shall survive the termination of this Agreement,
regardless of the party that terminated this Agreement or the reasons
therefor.
F. The parties agree that in any claim whatsoever brought against DealerTrack
where DealerTrack has advised Contractor that it may seek indemnification
or defense pursuant to this section, the parties will consider promptly
and in good faith any settlement offer made or considered (however
characterized) with the intention of resolving any such matter as promptly
and on as reasonable terms as possible in the circumstances.
17. LIMITATION OF LIABILITY
Except with respect to Contractor's indemnification obligations described in
subsections (iii) of subsection A. of section 16. of this Agreement, in no event
shall either party be liable to the other for any indirect, special or
consequential damages in connection with or arising out of this Agreement, even
in the event that it is advised of the possibility that such damages may arise,
occur or result.
18. DEALERTRACK'S SECURITY REGULATIONS
A. Contractor shall comply with DealerTrack's security regulations, made known
or known to Contractor, applicable to each location to which Contractor has
access pursuant to any Task Order. When deemed appropriate by DealerTrack,
Contractor may be issued an identification card, key or other security device.
All of such cards, keys and other devices shall be surrendered by Contractor
upon demand by DealerTrack or upon the earlier termination or expiration of the
relevant Task Order or this Agreement. Contractor shall cooperate with
DealerTrack guards and other DealerTrack security personnel as directed.
B. Neither Contractor nor its employees shall have access to, or attempt to gain
access to, any DealerTrack location outside of the normal working hours for that
location or on a day that is a scheduled holiday for that location, except as
approved in advance by DealerTrack.
19. MINIMUM INSURANCE REQUIREMENTS
A. The insurance coverages set forth below are the minimum insurance
requirements for consultants providing Services to DealerTrack and Contractor
shall maintain such coverages during the performance of its obligations under
any Task Order:
(i) Workers' Compensation Insurance with coverage applicable in all
states in which work is to be performed under any Task Order, with
limits in accordance with the statutory requirement of each such
state, and Coverage B -
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Employer's Liability Coverage, including occupational disease, with
a limit of not less than $1,000,000 per accident.
(ii) Commercial General Liability Insurance covering Contractor's
operations, with limits acceptable to DealerTrack but with combined
single limits for bodily injury, personal injury and property damage
not less than $3,000,000, with DealerTrack named as additional
insured and including coverage as follows:
- Commercial General Liability (Comprehensive Form)
- Broad Form Contractual Liability;
- Independent Contractors (if any part of the work is to be
subcontracted);
- Broad Form Property Damage;
- Personal Injury;
(iii) Automobile insurance including coverage for owned, non-owned and
hired vehicles in the amount of $1,000,000 per occurrence for bodily
injury and property damage. [Required if automobiles will be used in
performing this service.]
B. Insurance Terms and Certificates
(i) The insurance required under subsection A. of this section 19. may
be in a policy or policies of insurance, primary and excess,
including so-called Umbrella or Catastrophe form, which may also
include Comprehensive Automobile insurance and Employer's Liability
insurance. Insurance provided under this Agreement must be placed
with carriers with A.M. Best's rating of A - VIII or superior. All
policies shall be endorsed to show that they are primary to any
policy maintained by DealerTrack.
(ii) Contractor shall add DealerTrack as an additional insured to the
policies required under subsections (ii) and (iii) of subsection A.
of this section 19., but only in respect to the work being performed
pursuant to a Task Order. All such policies also shall be endorsed
with the provisions that the coverage afforded for DealerTrack shall
be primary and shall not require contribution by any other similar
insurance available to DealerTrack.
(iii) Certificates of Insurance listing the required coverages and
acceptable to DealerTrack shall be filed with DealerTrack prior to
Contractor, commencing performance of its obligations under any Task
Order. Such Certificates of Insurance shall be sent by Contractor to
XxxxxxXxxxx.xxx, Inc., 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx
00000. Such certificates shall provide that DealerTrack shall be
given at least thirty (30) days written notice prior to cancellation
or any change to restrict the coverage or reduce the limits
afforded.
(iv) The insurance required in subsection A. of this section 19. and
approval of Contractor's insurance by DealerTrack shall not affect
Contractor's other obligations under this Agreement or any Task
Order.
20. NON USE OF DEALERTRACK NAME
Contractor shall not use, in any advertising or promotional material or media,
DealerTrack's name or logo, or otherwise identify DealerTrack as a client of
Contractor, without DealerTrack's prior written consent.
21. SUPREMACY OF THIS AGREEMENT
The provisions, terms and conditions of this Agreement, the Task Orders entered
into hereunder and documents referenced herein or therein represent the entire
agreement between DealerTrack and Contractor on the subject matter hereof and
this Agreement supersedes all related prior agreements and understandings
between the parties. In the
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event of conflict between this Agreement and a Task Order, the terms and
conditions of the Task Order shall prevail.
22. AMENDMENT
No modification or amendment of this Agreement or of any Task Order shall be
effective unless it is in writing and such writing is signed by authorized
representatives of DealerTrack and Contractor. For the purposes of this section
22., only an authorized officer of DealerTrack's Technology Procurement
Department is an authorized representative of DealerTrack for any amendment to
this Agreement or for a Task Order executed by DealerTrack.
23. ASSIGNMENT
A. Neither this Agreement (including, but not limited to, any Task Order), nor
any rights or obligations hereunder or thereunder, may be assigned by either
party hereto without the prior written consent of the other.
B. Notwithstanding the foregoing, nothing shall prevent the assignment by
DealerTrack of this Agreement or the assignment by DealerTrack of any Task Order
without the consent of Contractor: (i) to DealerTrack's parent or to any of the
Subsidiaries or (ii) in connection with the sale of all or substantially all of
DealerTrack's assets. In the event that DealerTrack merges into or consolidates
with another entity, this Agreement and any Task Orders shall be deemed assigned
or transferred to such successor in interest without further action by
DealerTrack.
C. An assignment in contravention of this section 23. shall be null and void.
24. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
25. FURTHER ASSURANCE
The parties hereto agree to perform all acts and execute all supplementary
instruments or documents which may be necessary or desirable to carry out the
provisions of this Agreement and each Task Order.
26. SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement, and no such prohibition or unenforceability in any
jurisdiction shall invalidate such provision in any other jurisdiction.
27. REMEDIES CUMULATIVE
Any and all rights and remedies which either party may have under this
Agreement, at law or in equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law.
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28. FORCE MAJEURE
Neither DealerTrack nor Contractor shall be liable for any failure to perform,
or any delay in performing, its obligations pursuant to this Agreement, that
arises out of, is caused by or results from acts of God or other circumstances
that are beyond its reasonable control. In the event that any such circumstances
do arise, occur or result, Contractor and DealerTrack shall use reasonable
efforts to overcome such circumstances as promptly as practicable.
29. FORBEARANCE
The failure of either party to insist upon the performance of any terms or
conditions of this Agreement (including, but not limited to, any Task Order), or
to exercise any right or privilege conferred herein or therein, or to demand any
penalties resulting from any breach hereof or thereof, shall not be construed as
the waiver or relinquishment of any such terms, conditions, penalties, rights or
privileges.
30. COMPLIANCE WITH LAWS, PAYMENT OF TAXES
A. Contractor warrants that at all times it shall comply with all applicable
federal, state, local and other laws and regulations (and as such laws and
regulations may have been amended or may be amended from time in the future) in
performing the Services and its other obligations pursuant to this Agreement.
Without limiting the generality of the first sentence of this section 30.,
Contractor shall not discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin, age,
disability, sexual orientation, creed, alienage, citizenship status, marital
status or any other category protected under any federal, state or local law or
regulation. Contractor shall take affirmative action to ensure that applicants
are selected for employment, and that employees are treated during employment,
without regard to their race, color, religion, sex or national origin, age,
disability, sexual orientation, creed, alienage, citizenship status, marital
status or any other protected status. Such treatment shall include, but not be
limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selected for training including apprenticeship.
Contractor shall post in conspicuous places, available to the employees and
applicants for employment, notices setting forth the provisions of this
nondiscrimination section.
B. Unless exempt, Contractor shall comply with Department of Labor requirements
for: (a) Executive Order 11246, as amended; (b) Affirmative Action Regulations
for Minorities and Women - 41 Code of Federal Regulations ("C.F.R.") 60-1 et
seq.; (c) Section 503 of the Rehabilitation Act of 1973; (d) Affirmative Action
Regulations for Handicapped Workers - 41 C.F.R. 60-741 et seq.; (e) Section 402
of the Vietnam-Era Readjustment Assistance Act of 1972 and 1974; (f) Affirmative
Action Regulations for Special Disabled and Vietnam-Era Veterans - 41 C.F.R.
60-250 et seq.; and (g) Affirmative Action Regulations for Small, Small
Disadvantaged and Women-Owned Small Business Concerns 48 C.F.R. 52-219 et seq.,
which are incorporated by reference herein.
31. HEADINGS
The division of this Agreement into sections, clauses, paragraphs or
subdivisions thereof, and the insertion of headings, are for convenience and
reference only and shall not affect the construction or interpretation hereof.
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32. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS
This Agreement shall be construed and enforced in accordance with the laws of
the State of New York, without reference to the conflict of laws provisions
thereof. The parties hereby consent to the personal jurisdiction of the state
and federal courts within the Borough of Manhattan, City of New York, for the
adjudication of all matters relating hereto or arising hereunder, and shall
accept as due and binding service of legal process there for service by
receipted mail directed to the respective address provided for herein for notice
purposes.
33. SURVIVAL
Any terms or conditions of this Agreement which by their express terms extend
beyond termination or expiration of this Agreement or which by their nature
shall so extend shall survive and continue in full force and effect after any
termination or expiration of this Agreement.
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