Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
EXHIBIT 10.15
STRATEGIC CO-MARKETING AGREEMENT
THIS AGREEMENT ("Agreement") is made effective as of this 16/th/. day of
March 2000 ("Effective Date") by and between Xxxxxxx.xxx, Inc. ("Autoweb") a
Delaware corporation having its principal place of business at 0000 Xxx Xxxxxx,
Xxxxx Xxxxx, XX 00000, and XxxxXxxxxx.xxx, Inc., a Delaware corporation having
its principal place of business at 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, XX,
00000 ("CarsDirect"). Autoweb and CarsDirect may be referred to individually as
a "Party" and collectively as the "Parties." Capitalized terms used but not
defined in the body of this Agreement are as defined on Exhibit B hereto.
RECITALS
WHEREAS, Autoweb is a consumer automotive Internet service;
WHEREAS, CarsDirect is a consumer automotive Internet service;
WHEREAS, the Parties desire to create a long-term commercial and strategic
relationship which leverages Autoweb's ability to generate a significant number
of "buy" oriented consumers and CarsDirect's ability to offer consumers a
valuable online automotive e-commerce transaction experience;
NOW, THEREFORE, in reliance upon the foregoing facts, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
in consideration of the mutual agreements hereinafter set forth, the Parties
agree as follows:
AGREEMENT
1. EXCLUSIVITY AND NONCOMPETITION
1.1. For a period of *** immediately following the Effective Date (the
"Twelve-Month Period"), CarsDirect will not consummate a
CarsDirect Prohibited Transaction. Notwithstanding the foregoing,
during the period commencing on the *** of the Effective Date
through the *** of the Effective Date (the "Level 2 Exclusivity
Period"), CarsDirect shall be permitted to enter any type of
promotion, linking, strategic, co-marketing or website-framing
relationship with Excluded Party. In the event that CarsDirect
consummates such a transaction with Excluded Party at any time
during the Level 2 Exclusivity Period, both Parties' ***
contained in this Section 1 shall be of no force or effect
(however, all other terms and requirements of this Agreement
shall remain in full force and effect). Notwithstanding the
immediately foregoing sentence, CarsDirect may enter into a
content or technology relationship, whether through a joint
venture, marketing venture or otherwise, with Excluded Party at
any time during the Term provided that such relationships do not
promote or reference the Direct Transaction
CONFIDENTIAL
1
AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
Business Model of CarsDirect or its wholly owned subsidiaries on
or through the Excluded Party website.
For the period from the expiration of the ***, CarsDirect shall
be permitted to consummate a CarsDirect Prohibited Transaction
with any Person, except for Persons designated on Exhibit G
attached hereto, as may be modified by Autoweb as provided below
(collectively, the "Restricted Referral Businesses"). In the
event that a Restricted Referral Business enters into a
definitive agreement with respect to a Change of Control, such
Person shall no longer be deemed a Restricted Referral Business
and Autoweb may add a Replacement.
At the beginning of each six-month period beginning at the end of
the Twelve-Month Period and subject to CarsDirect's approval,
which shall not be unreasonably withheld, Autoweb shall have the
right to replace no more than two (2) Persons from the list of
Restricted Referral Businesses with alternative Persons (each a
"Replacement") subject to the following conditions:
1. Once Autoweb replaces a Restricted Referral Business,
Autoweb shall not be permitted to designate such Person
as a Restricted Referral Business at a later time.
2. Autoweb may not designate a Person as a Restricted
Referral Business if as of the beginning of the given
six-month period CarsDirect (i) is engaged in active
discussions with such Person in connection with a
pending transaction or (ii) has a contractual
relationship with such Person.
3. Any Restricted Referral Business must be a Referral
Business.
4. Any Replacement shall be subject to CarsDirect's prior
approval which shall not be unreasonably withheld.
1.2 During the Term, the Direct Transaction Business Model available
on the CarsDirect Site shall be the exclusive Direct Transaction
Business Model available on or promoted or referenced through the
Autoweb Site and Autoweb's wholly owned subsidiaries' sites.
1.3 Exceptions for Certain Business Models and Persons.
Notwithstanding anything to the contrary contained in this
Agreement:
(i) Either or both Parties may offer their respective Visitors
Automobile auctions, reverse auctions, classified listings
or other purchase methods other than the Direct Transaction
Business Model;
(ii) Either or both Parties may maintain a database of dealer
inventory for the purpose of facilitating purchase methods
other than the Direct Transaction Business Model;
(iii) CarsDirect may offer a "build-to-order" business method to
any Automobile manufacturer;
(iv) In addition to its referral of Visitors residing in Dark
States to Autoweb under Paragraph 4 below (i.e., a Referral
Business Model transaction), CarsDirect Site
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AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
may offer to any of the ten (10) largest dealer groups
nationally a modified form of the Direct Transaction
Business Model (i.e. a Referral Business Model with a
credit card) so long as CarsDirect's business model is
offered only to such dealers located in Dark States.
(v) Autoweb or CarsDirect may enter into merger, consolidation,
or other acquisition transactions of all, or substantially
all asset-purchase or stock-purchase with Persons providing
either the Direct Transaction Business Model or the
Referral Business Model.
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AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
2. REFERRAL OF CONSUMERS TO CARSDIRECT
2.1 Referrals. Each quarter during the Term, Autoweb shall deliver to
---------
CarsDirect no more than the D1 Lead Maximum and no less than the D2
Lead Minimum. Attached hereto as Exhibit A/Part II is a schedule of
CarsDirect's geographic Lead referral parameters and as Exhibit A/Part
III is a schedule of CarsDirect's make and model Lead referral
parameters (collectively "Lead Criteria"). Leads that do not satisfy
the Lead Criteria or those Leads that are inaccurate (e.g. omissions,
misstatements, false information, duplicates within a twenty-four hour
period, etc.) that materially reduces CarsDirect's ability to convert
the D1 Leads) shall be referred to as "Undesirable Leads." The Parties
may update such Undesirable Leads as described in section 10,
Quarterly Review. CarsDirect will only pay for Leads as consistent
with Lead Criteria. The Parties will work together to reduce
Undesirable Leads. If such Undesirable Leads equal or exceed *** of D1
Leads or more for a given quarter, Autoweb will make good within the
next two (2) subsequent quarters by delivering to CarsDirect a number
of D1 Leads that satisfy the Lead Criteria in an amount equal to the
number of Undesirable Leads Delivered in the quarter(s) in question.
2.2. Referral Fees. CarsDirect will pay to Autoweb, prior to the start of
-------------
each quarter, Lead Fees based on Exhibit A/Part I. This payment will
be net of any adjustments (including decreasing of payments for under-
delivery of D1 Leads and increasing of payments for over-delivery of
D2 Leads and decreased D1 Lead Fees pursuant to section 10.4, if any)
for previous periods. Separately, during the second month of each
quarter, CarsDirect will pay to Autoweb any amounts by which the
Automobile Purchase Marketing Fees for the previous quarter are
greater than the preceding quarter's Lead Fees.
2.3. Fee Adjustments. D1 Lead Fees shall be reduced in a proportionate
---------------
amount each month, if necessary, based upon the amount by which the D2
Lead Minimum exceeds the D2 Leads generated in a given month. Subject
to section 10.4, the minimum D1 Lead Fee shall be *** per D1.
2.4. Lead Initiation. CarsDirect will start receiving Leads on March 27,
---------------
2000, and will receive up to the D1 Lead Maximum. By March 17, 2000,
Autoweb will provide CarsDirect with a mutually agreed to Delivery
Plan (to be updated as described in Quarterly Review, which will
include make and model restrictions supplied by CarsDirect) according
to Lead Criteria (defined as the initial rollout plan and ongoing
State level delivery schedule for D1 and D2 Leads).
2.5. Conversion Adjustment. The Parties expect that the Direct Flow (as
---------------------
described in Exhibit D hereto and incorporated herein) will change
over the Term of this Agreement. The Parties agree that there will be
an introductory period for Direct Flow changes (including the
introduction of new products) during which time Autoweb will evaluate
the effect on D2 Leads. To the extent that such changes (e.g., moving
"Payment Options" toward the beginning, adding parts sales, etc.)
materially reduces conversion to D2 Leads (e.g., adds profit margin
which Autoweb does not participate in and reduces conversion), the
Parties will work together in good faith to optimize D2 Lead
conversions.
3. PHASE IN OF REFERRAL PROGRAM AND ACCESS TO CONFIGURATOR AND SITE CONTENTS
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AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
The Parties agree to implement a program to generate D1 Leads and D2 Leads
in phases as follows:
3.1 Level One Referral.
------------------
. As shown in Exhibit A and subject to Quarterly Reviews,
CarsDirect agrees to accept D1 Leads in accordance with the
agreed upon quantities set forth in Exhibit A/Part I. Parties
will develop and implement in accordance with mutually agreed
upon specifications, the data exchange format for passing such D1
Leads from Autoweb to CarsDirect during Phase One, and the
Parties will mutually agree upon other executional elements;
provided, however, (i) CarsDirect shall control the text and user
interface elements and (ii) the Parties shall mutually agree as
to the branding of the Auto Response Email messages to such
consumers.
3.2 Level Two; Commencement of D2 Lead Delivery.
--------------------------------------------
. Phase One: Beginning upon the date of the Launch of the Co-
Branded Site and ending upon the commencement of Level Two, Phase
Two, consumers who on the Autoweb Site select the Direct
Transaction Business Model will be re-directed to the Co-Branded
Site, at which time they will have the opportunity to configure,
receive pricing information about, and submit a CarsDirect
Purchase Request. The Parties shall develop the necessary
technical interfaces and other requirements necessary for the
CarsDirect Site to accept such consumers after they have selected
vehicle make, model, and trim using the current Autoweb
Configurator.
. Phase Two: Autoweb shall develop, with the cooperation of
CarsDirect, software and systems that: (i) employ the Autoweb
Configurator to permit Visitors to the Autoweb Site who select
the Direct Transaction Business Model to configure and receive
pricing information about an Automobile in substantially the same
manner and format with respect to Automobile preference and
consumer information as does CarsDirect. Autoweb shall have
integrated all CarsDirect pricing, financing, insurance,
warranty, roadside assistance and configuration constraints to
CarsDirect's reasonable approval, such approval not to be
unreasonably withheld or delayed. Autoweb's developed software
and systems shall be integrated in a manner which complies with
all Autoweb contractual obligations existing as of the Effective
Date copies of which have been provided to CarsDirect. The
functionality described in the preceding two sentences shall be
referred to as the "CarsDirect Functionality"; (ii) fully employ
the Autoweb Configurator and the CarsDirect application program
interface (including syntax and semantics) to communicate with
and deliver full CarsDirect Functionality to the CarsDirect
computer systems (including but not limited to CarsDirect's lead
application system, pricing and accounting systems and Automobile
sourcing and locating systems) in a manner fully compatible with
the CarsDirect Configurator. Upon agreement of the Parties,
operation of the Co-Branded Site and redirection of Visitors to
the Autoweb Site to such site shall cease.
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AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
. Interim Solutions. To the extent that the full integration
-----------------
described above is delayed, the Parties will work together to
develop interim alternative integration solutions (e.g., passing
make, model. Year and trim detail).
. To the extent that CarsDirect develops alternative integration
facilities made available to third parties, such alternative
integration facilities will also be made available to Autoweb.
CONFIDENTIAL
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AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
4. REFERRAL TO AUTOWEB OF PURCHASE REQUEST TRAFFIC
In connection with the Tracked Links that CarsDirect will establish on the
CarsDirect Site and the Autos Site, Autoweb will pay CarsDirect a fee for
each qualified Autoweb Purchase Request that is submitted to the Autoweb
Site through Tracked Links. Such fee shall be equal to *** of Autoweb's
average net revenue from such Autoweb Purchase Request, net revenue defined
as gross revenue less any reserve for loss contingencies. Autoweb shall pay
to CarsDirect such fee on a monthly basis no later than forty-five (45)
days from the end of the month.
5. FRAMED AND CO-BRANDED SERVICES
5.1 Autoweb Site; Promotion of CarsDirect and Branding. For the Term of
--------------------------------------------------
this Agreement, Autoweb will prominently promote its Direct
Transaction Business Model throughout the Autoweb Site. Each promotion
shall be at least as prominent as any other transaction business model
on the Autoweb Site. When a Visitor to the Autoweb Site chooses the
Direct Transaction Business Model, Autoweb will control the relative
prominence of all branding on pages up to and including the Autoweb
Jump Pages. The Parties agree to joint control of the user interface
and text and graphic content on the Autoweb Jump Pages, excluding the
aforementioned branding elements. The Co-Branded Site will have a
permanent "Back to Autoweb" link. CarsDirect will have design
approval rights for all uses of its trademarks and branding.
Notwithstanding the foregoing, the branding scheme with respect to the
promotion and the process of the Direct Transaction shall position
CarsDirect as the principal in the transaction.
5.2 CarsDirect Site and Autos Site; Branding. For the Term of this
----------------------------------------
Agreement, CarsDirect will provide links to the Autoweb Site on such
pages within the CarsDirect Site and the Autos Site, with the location
of such links to be agreed by the Parties. The Parties agree that the
CarsDirect Jump Pages will be co-branded with each brand receiving
equal prominence. When a CarsDirect or Xxxxx.xxx Visitor chooses the
Autoweb Referral Business Model, CarsDirect will control the relative
prominence of all branding including the CarsDirect Jump Pages. The
Autoweb Site will have a permanent "Back to Xxxxx.xxx" link. The
Parties agree to joint control of the user interface on the CarsDirect
Jump Pages, excluding the aforementioned branding elements. Except as
otherwise provided for herein, each party retains the right to control
its user interface on its respective site(s).
5.3 Design Guidelines. When CarsDirect hosts pages, it will design the
-----------------
co-branded area of each page based on Autoweb design guideline
templates and co-branding requirements as may be updated from time to
time. Autoweb shall have the right to change or modify its design
guideline templates and co-branding requirements over the term.
Mutually agreed upon consumer communications from CarsDirect will be
co-branded with Autoweb and CarsDirect.
5.4 CarsDirect Site; Promotion of Autoweb. Autoweb will be prominently
-------------------------------------
promoted (including a permanent placement) as the *** new Referral
Business Model and the *** used Referral Business Model on the Autos
Site. Autoweb will have permanently placed links on the Autos Site
located at a minimum on its New and Used category pages. Autoweb's
used Automobile and trade-in services shall be offered on the
CarsDirect Site and the Autos Site as an option available to new
Automobile Purchasers.
CONFIDENTIAL
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AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
5.5 Further, in the event that in the reasonable opinion of CarsDirect
counsel CarsDirect should not provide its new Automobile purchasing
services to CarsDirect Visitors in certain States ("Regulatory
Adjustment; thus rendering such States as Dark States), Autoweb will
be positioned as the exclusive new Automobile Referral Business Model
on the CarsDirect Site to such CarsDirect Visitors, except where OEM
and Dealer Group programs are allowed as stated in section 1.3/parts
(iii) and (iv). In the event that CarsDirect places links on the
CarsDirect Site that navigate Visitors to the CarsDirect Site to
unrelated online entities that enable the purchase of a new
Automobile, CarsDirect shall offer Autoweb link placement
substantially similar to such links. Further, the Parties will work in
good faith to identify possible link placements on each other's sites.
6. GRANT OF CARSDIRECT COMMON STOCK TO AUTOWEB
As further consideration for Autoweb entering into the Agreement and the
exclusivities granted herein, CarsDirect agrees to issue and deliver to
Autoweb 576,701 shares of CarsDirect Stock valued at $10,000,000 (such
shares may consist of common stock, preferred stock or a combination
thereof at the sole discretion of CarsDirect) to Autoweb (the "CarsDirect
Shares"). Autoweb agrees to enter into an investment agreement (including
a standard 180 day lockup) with CarsDirect with respect to the issuance of
the CarsDirect Shares within twenty-one business days following the
Effective Date and shall deliver the Shares to Autoweb within twenty (20)
days following the execution of such investment agreement.
7. PURCHASE OF AUTOWEB COMMON STOCK BY CARSDIRECT
Within five (5) business days following the Effective Date CarsDirect
agrees to purchase 750,000 shares of Autoweb Common Stock (the "Autoweb
Shares") for a per share purchase price equal to the average of the closing
price for the thirty (30) trading days prior to the Effective Date, or
$7.93 per share, multiplied by 1.35 (for a per share price of $10.616).
CarsDirect agrees to enter into an investment agreement with Autoweb with
respect to the purchase and sale of the Autoweb Shares within twenty-one
(21) business days following the Effective Date.
8. RECORDING OF TRAFFIC
To the extent feasible, CarsDirect will authorize both Media Metrix and
Xxxxxxx/NetRatings to record all page views from the Co-branded Site as
Xxxxxxx.xxx traffic. CarsDirect shall count all unique Visitors to the Co-
branded Site as CarsDirect unique Visitors. Should alternative reporting
means become available which allow for Autoweb and CarsDirect each to be
credited with traffic (page views and unique Visitors), the Parties shall
agree to comply with such reporting means.
9. REPORTING
CarsDirect Reporting Responsibilities. CarsDirect shall implement sales
-------------------------------------
management software with which to track Automobile Purchases sufficiently
soon after the Effective Date to timely and accurately compute the basis of
its payment obligations to Autoweb.
As soon as reasonably feasible, CarsDirect shall provide Autoweb with daily
reports regarding the number of Leads received by CarsDirect. Further,
CarsDirect shall provide Autoweb with weekly and quarterly reports as per
Exhibit C hereto. If CarsDirect's records show activity from the Direct
Transaction Placement or the Auto Response Email that CarsDirect determines
is
CONFIDENTIAL
8
AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
inconsistent with valid information requests, or is otherwise unusual, then
CarsDirect will pay the minimum amount that is calculated as due pending an
investigation of that activity by the Parties and resolution of the Dispute
(if any). CarsDirect will notify Autoweb reasonably promptly in this
event.
Autoweb Review Rights. Subject to the confidentiality obligations herein,
---------------------
Autoweb has the right, at its expense to have reviewed CarsDirect's
directly relevant books and records for the purpose of verifying the number
of Automobile Purchases. Such review will be made not more than twice per
year, on not less than fifteen (15) business days written notice, during
regular business hours, by a nationally recognized accounting firm which is
reasonably acceptable to CarsDirect. CarsDirect will provide reasonable
accommodation thereof. In no event shall Autoweb review the same time
period (or any portion thereof) more than once. If such review reflects
Automobile Purchasers greater than those reported by CarsDirect, CarsDirect
will provide Autoweb with prompt payment for the deficiency. If such review
indicates underpayments of greater than 10% but not less than $10,000 from
the figures provided by CarsDirect, CarsDirect will also pay all reasonable
costs of such review.
Autoweb Reporting Responsibilities. Autoweb shall implement lead
----------------------------------
management software with which to track Leads delivered to CarsDirect. As
soon as reasonably feasible, Autoweb shall provide CarsDirect with daily
reports regarding the number of Leads delivered to CarsDirect.
CarsDirect Review Rights. Subject to the confidentiality obligations
------------------------
herein, CarsDirect will have the right, at its expense to have reviewed
Autoweb's directly relevant books and records for the purpose of verifying
the number of Leads delivered to CarsDirect. Such review will be made not
more than twice per year, on not less than fifteen (15) business days
written notice, during regular business hours, by a nationally recognized
accounting firm which is reasonably acceptable to Autoweb. Autoweb will
provide reasonable accommodation thereof. In no event shall CarsDirect
review the same time period (or any portion thereof) more than once. If
such review reflects Leads delivered to CarsDirect less than those reported
by Autoweb, Autoweb will provide CarsDirect with prompt payment for the
deficiency. If such review indicates a discrepancy of greater than 10% from
the figures provided by Autoweb, Autoweb will also pay all reasonable costs
of such review.
10. QUARTERLY REVIEW
10.1 Prior to the end of every calendar quarter, a representative of each
of Autoweb and CarsDirect will meet to determine any adjustments to D1
Leads and D2 Leads for the following quarter. At such quarterly
review meeting, CarsDirect may request an increase in the D1 Leads
Maximum. If Autoweb agrees to provide such additional D1 Leads, then
all incrementalD1 Leads provided in excess of the D1 Lead Maximums in
Exhibit A/Part I for such quarter will be *** per D1 Lead, regardless
of the number of D2 Leads provided during the same period.
10.2 CarsDirect will notify Autoweb of Regulatory Adjustments as soon as
reasonably practicable after CarsDirect becomes aware of a likely
Regulatory Adjustment. Upon such notice and the request of CarsDirect,
Autoweb will stop delivering Leads from such new Dark States and the
Parties shall collaborate to reallocate the Leads. There shall be no
Fee Adjustments (defined in section 2.3) due to Regulatory
Adjustments. Any Regulatory Adjustments will proportionately affect D1
Lead Maximums.
CONFIDENTIAL
9
AUTOWEB AND CARSDIRECT STRATEGIC AGREEMENT
10.3 CarsDirect agrees and acknowledges that there may be a pool of
Visitors to the Autoweb Site who have filled out Autoweb Purchase
Requests that will not be sold to CarsDirect ("Potential D1 Leads")
and that the number of such Potential D1 Leads will increase and
decrease, based on adjustments authorized herein. CarsDirect agrees
and acknowledges that, subject to Autoweb's obligations to CarsDirect
hereunder with respect to D1 Leads, Autoweb has the right to sell such
Potential D1 Leads to any third party.
10.4 The Parties will work together, as appropriate, to adjust D1 Leads to
improve CarsDirect revenues related to Automobile Purchases. The
Parties shall work together to ensure that the conversion rate from D1
Leads to Automobile Purchase shall be at least ***. In the event that
such rate is below *** for the quarter under review ("Under-delivered
Quarter"), principally in the subsequent quarter the Parties will
either increase Leads (without cost to CarsDirect), decrease the D1
Lead Fees, or provide other mutually agreed to modifications ("Make
Goods") that ensure the target acquisition cost per Automobile is less
than or equal to *** for the Under-delivered Quarter. The calculation
of acquistion cost for the quarter under review shall exclude Make
Goods.
10.5 Autoweb will reflect all agreed upon adjustments to an updated
Delivery Plan (as defined in 2.4).
11. AUTOWEB LICENSING TO XXXXX.XXX
11.1 Within 90 days from the Effective Date, Autoweb and CarsDirect will
identify and document services and content licenses that Autoweb will
provide with respect to the Autos Site, and negotiate in good faith
the terms of a definitive agreement for the implementation of such
services and the licensing of such content. In the event that the
Parties mutually execute a definitive agreement with respect to the
above-referenced relationship, Autoweb will, among other things, serve
as a premiere infrastructure partner for Xxxxx.xxx, assisting in the
development of user interface, the development of new content and
tools, and the integration of commerce and content partners into the
Xxxxx.xxx web site. Such services work will be performed on a time and
materials basis with an agreed upon xxxx-up for general overhead and
operating expenses.
11.2 Subject to inventory supplied by CarsDirect, CarsDirect hereby
authorizes Autoweb to (i) include the Autos Site in Autoweb's auto
industry advertising rate card; and (ii) sell Xxxxx.xxx advertising
and sponsorship inventory. The Parties will share equally in the gross
revenue from such Xxxxx.xxx inventory that Autoweb sells.
12. CARSDIRECT LICENSE TO AUTOWEB; CONFIGURATION AND PRICING TOOLS
Pursuant to the terms and conditions of a content license agreement to be
entered into by the Parties, CarsDirect shall license to Autoweb, on a
royalty-free basis, effective upon Autoweb's preparations for development
of Level Two, Phase Two and continuing through the Term, the data, tools,
and software necessary solely for use in connection with consumers choosing
a DirectTransaction to enter into a Direct Transaction. If the Parties
shall hereafter agree to adopt a configuration tool on the Autoweb Site
that includes elements of the CarsDirect Configurator, CarsDirect shall
license such technology and tools to Autoweb on a royalty-free basis and
pursuant to terms and conditions of a content license agreement to be
entered into by the Parties. The term of such license shall be coterminous
with this Agreement. The Parties agree that such
CONFIDENTIAL
10
technology and tools shall have the functionality to facilitate a Direct
Transaction as contemplated in this Agreement.
13. COOPERATIVE DEALER AND OEM NETWORKS
Subject to contractual limitations between CarsDirect and Automobile
dealers and Automobile dealer groups and consolidators, Autoweb shall have
the right to offer to its current and future franchised Automobile dealers
participating in the Autoweb network the opportunity to participate in the
Direct Transaction program contemplated herein and as further described in
Exhibit F hereto, provided each such Dealer executes a CarsDirect Dealer
Agreement with CarsDirect and continues to meet the standards for such
inclusion, as may be amended from time to time. Such standards may include
but not be limited to (i) maintaining a dedicated Internet department, (ii)
meeting certain inventory and geographic criteria and (iii) meeting
minimum CSI standards. CarsDirect shall have the right to offer to its
current and future Dealers the opportunity to participate in the Autoweb
Dealer Referral program contemplated herein, provided such inclusion meets
mutually determined standards for such inclusion.
14. COMMERCE PARTNERS AND PRODUCTS
Autoweb reserves the right to enter into commercial relationships with
commerce partners, including but not limited to those providing finance,
insurance, roadside assistance, warranty products, and certain forms of
purchasing Automobiles, provided such agreements are consistent with the
terms and conditions of this Agreement and the exclusivities provided
herein. CarsDirect will retain the right to offer to Leads financing,
insurance, warranty, roadside assistance and other products. The Parties
will negotiate regarding a possible commercial relationship in the future
whereby CarsDirect products are promoted on the Autoweb Site and Autoweb
products are offered on the CarsDirect Site. Neither Party shall be
obligated to enter into such a relationship.
15. ADVERTISING
Autoweb shall have the right to sell and serve all advertising, revenue
generating, and promotional positions (including sponsorships) on pages of
the Autoweb Site. CarsDirect shall have the right to sell and serve all
advertising, revenue generating, and promotional positions (including
sponsorships) on pages of the Co-Branded Site and the CarsDirect Site, if
any. Neither Party shall display or exhibit on any page of the Co-Branded
Site or any Autoweb Jump Page any graphic or textual link, advertisements
or other promotions that in any manner or fashion reference, promote or
feature, or provide any link to a site identified with or controlled by any
CarsDirect Competitor or Autoweb Competitor or other Internet Automobile
buying service. Further, at such point that an Autoweb Site Visitor who
has chosen a Direct Transaction begins to submit her contact information,
Autoweb agrees not to serve advertisements with respect to products or
services which are competitive to those offered by CarsDirect.
16. AUTOWEB CONSUMER BENEFITS
Subject to applicable laws, Autoweb, at its expense, may offer automotive
specials and promotional offers for Visitors to the Autoweb Site. Subject
to applicable laws, CarsDirect will use commercially reasonable efforts to
integrate such specials or promotional offers in the Autoweb Direct
offering where appropriate where such specials or offers do not conflict
with CarsDirect's product and service offerings. CarsDirect will not
disadvantage Visitors to the
CONFIDENTIAL
11
Autoweb Sitewho choose a Direct Transaction as it pertains to specials,
offers, incentives, and promotions that are generally available on the
CarsDirect Site. CarsDirect will collaborate with Autoweb to create and
implement special offers to Visitors to the Autoweb Site that choose to
effect a Direct Transaction.
17. TERM AND TERMINATION
17.1 Term - This Agreement shall commence on the Effective Date and shall
----
remain in effect for *** from the Effective Date (the "Initial Term")
unless terminated sooner as provided below. The Parties may elect to
renew the Agreement for an additional *** on mutually agreeable terms
(the "Renewal Term"). The Initial Term and the Renewal Term, if any,
shall be referred to collectively herein as the "Term".
17.2 Termination for Breach - Notwithstanding anything to the contrary
----------------------
stated herein, either of CarsDirect and Autoweb shall have the right
to terminate this Agreement for material breach by the other Party. A
material breach of Autoweb includes but is not limited to, the failure
by Autoweb to achieve either (i) *** or more of the D2 Lead Minimum in
two consecutive quarters or (ii) *** or more of the D2 Lead Minimum in
any given quarter. Each Party has the right to terminate at any time
for material breach of the other Party after thirty days from the
effective date of written notice specifying the alleged breach,
provided that the breaching Party fails to remedy said breach to the
non-breaching Party's reasonable satisfaction within thirty (30) days
of its receipt of said notice of breach. A material breach of
CarsDirect includes but is not limited to CarsDirect's designation of
Dark States such that over two consecutive quarters CarsDirect
declines to accept *** or more of Autoweb's Total Lead Allocation. The
Total Lead Allocation shall be defined as the collection of state
allocations associated with Purchase Requests submitted to Autoweb
during the quarter prior to said two consecutive quarters. A material
breach of either party includes but is not limited a breach of the
Exclusivity and Noncompetiton provisions of section 1 of this
Agreement.
17.3 Termination on Business Discontinuation or Bankruptcy. Either Party
-----------------------------------------------------
shall have the right to terminate this Agreement immediately upon
notice to the other Party if at any time the other Party discontinues
business or is adjudicated as bankrupt, files a voluntary, or is the
subject of an involuntary petition in bankruptcy or reorganization.
17.4 Effect of Termination - In the event of expiration or termination of
---------------------
this Agreement, each Party shall use its best efforts to return any
property provided by the other Party for the purposes of this
Agreement, and particularly Confidential Information (as defined
below), to the other Party. All amounts owing under this Agreement for
services rendered prior to termination shall become immediately due
--------
and payable. Upon termination, all rights of CarsDirect to use
Autoweb's trademarks shall immediately cease and all rights of Autoweb
to use CarsDirect's trademarks licensed content or technology shall
immediately cease.
CONFIDENTIAL
12
18. CONFIDENTIALITY
18.1 The Parties agree and acknowledge that, as a result of negotiating,
entering into and performing this Agreement each will have contact
with the other's information of substantial value which is not
generally known in the trade and which gives each Party an advantage
over its competitors who do not know or use such information,
including, but not limited to sales and customer information and
business and financial information, techniques, processes, inventions,
and developments relating to the business, products, practices or
techniques of the Parties (hereinafter referred to as "Confidential
Information"). The Parties hereto shall at all times, regard and
preserve as confidential such Confidential Information obtained by the
other from whatever source, whether oral or written, and regardless of
whether same is labeled "confidential," and will not, during the
period of this Agreement or thereafter, publish or disclose any part
of such Confidential Information in any manner, or use the same except
on behalf of the other Party, without the prior written consent of the
other Party. Provided further it shall not be a breach of this
Agreement if this Agreement is filed or its terms are disclosed as
required in connection with a registration statement or report filed
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended or the Securities Exchange Act of 1934, as
amended and the regulations promulgated thereunder, as applicable,
provided that the Party making such filing or disclosures consults
with the other Party prior to any such filing or disclosure.
18.2 Each Party hereby agrees that all notes, data, sketches, drawings and
other documents and records, and all material and physical items of
any kind, including reproductions and copies thereof, which relate in
any way to the business, products, practices or techniques of the
other Party, or contain Confidential Information made by the other
Party or that come into the possession of either such Party from or on
behalf of the other Party by reason of this Agreement, shall remain
the property of the other Party and shall promptly be surrendered to
the other Party at the expiration or termination of this Agreement.
18.3 The Parties agree they will not disclose to the other, or induce the
other to use, any invention or confidential information belonging to
any third Party, if such disclosure or use violates Intellectual
Property Rights of, or confidentiality obligations between the Party
disclosing or inducing, and such third Party.
18.4 A Party's obligations under this Paragraph shall not apply to any
particular portion of the Confidential Information when that Party can
document that: (i) the portion was in the public domain at the time
of communication thereof to the other; (ii) the portion was developed
by employees or agents of each Party independently of and without
reference to any Confidential Information or other information that
the other Party has disclosed in confidence to any third Party; (iii)
the portion was communicated to the Parties by a third Party free of
any obligation of confidence; or (iv) disclosure of the portion is
required by law, provided that the disclosing Party gives the other
Party prompt notice of the request for disclosure, cooperates with the
other Party in obtaining a protective order or other remedy, and
discloses only that portion of the Confidential Information which it
is legally compelled to disclose.
19. PRIVACY OF CONSUMER DATA
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Privacy. Each Party represents and warrants that it has effective privacy
-------
policies and procedures in place for the protection of consumers. Each
Party further represents and warrants that it will comply with all
applicable privacy laws. Further privacy considerations are discussed in
Exhibit C.
20. MUTUAL PERFORMANCE STANDARDS
Both CarsDirect and Autoweb will provide an acceptable 24x7 technical
support plan with minimum bandwidth, and performance standards to be
mutually agreed upon.
21. NOTICES
Any notices to be given hereunder shall be given in writing via facsimile
or by registered or certified mail, postage prepaid with return receipt
requested. Mailed notices shall be addressed at the addresses appearing
below, but each Party may change its address by written notice to the other
Party in accordance with this Paragraph. Notices shall be deemed effective
as of actual receipt.
To Xxxxxxx.xxx: Xxxxxxx.xxx, Inc.
0000 Xxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxx X. XxXxxxx
With a copy to: General Counsel
To XxxxXxxxxx.xxx: XxxxXxxxxx.xxx, Inc.
00000 Xxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
With a copy to: General Counsel
22. NO WAIVER OF RIGHTS
All waivers hereunder must be made in writing. Failure by either Party
hereto at any time to require the other Party's performance of any
obligation under this Agreement shall not affect the right subsequently to
require performance of that obligation. The waiver, delay or failure of
either Party to exercise any right provided for herein or any remedy for
any default or breach of this Agreement shall not be deemed a waiver of any
other or subsequent right or remedy hereunder.
23. REPRESENTATIONS AND WARRANTIES
23.1 General. Each Party represents and warrants to the other Party that:
--------
(i) such Party has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do
not and shall not violate any agreement to which such Party is a Party
or by which it is otherwise bound; (iii) when executed and delivered
this Agreement is enforceable against such
CONFIDENTIAL
14
Party in accordance with its terms; and (iv) such Party acknowledges
that the other Party makes no representations, warranties or
agreements, related to the subject matter hereof that are not
expressly provided for in this Agreement.
23.2 Intellectual Property Rights. Each Party further represents and
----------------------------
warrants that to the best of its knowledge, it owns, or has the right
to use under valid and enforceable agreements, all Intellectual
Property Rights reasonably necessary and related to the operation of
its respective Site(s). The operation of each Party's respective
Site(s) as presently conducted or proposed to be conducted does not,
to the Parties' knowledge, infringe or violate any material
Intellectual Property Rights of any other person. Each Party
represents that other than Trilogy Software, Inc., et al. v.
XxxxXxxxxx.xxx, Inc., xx.xx. pending in the United States District
Court for the Western District of Texas, it has not received any
charge, complaint, claim, demand or notice alleging any such
infringement or violation. To each Party's best knowledge, no other
Person has any right to or interest in any inventions, improvement,
discoveries or other confidential information used by such Party that
relate to the operation of that Party's Site(s), except for licenses
of technologies.
23.3 Geographic Adjustments. Each Party shall notify the other Party of any
-----------------------
enforcement action, administrative order, inquiry or examination
against it by any governmental authority relative to its services
performed under this Agreement.
23.4 Performance. Each Party represents and warrants that the services it
-----------
may provide under this Agreement shall be performed in a professional
manner and will conform in all material respects to the standards set
forth in this Agreement.
23.5 WARRANTY DISCLAIMERS. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
THE PARTIES' RESPECTIVE SITE(S), SERVICES, PAGES, AND THE CO-BRANDED
PAGES ARE PROVIDED "AS IS" AND THE INFORMATION CONTAINED THEREIN IS
NOT WARRANTED TO BE ERROR FREE. EACH PARTY DISCLAIMS ALL WARRANTIES,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF
PERFORMANCE WITH RESPECT TO THE PARTIES SITE(S), SERVICES, PAGES AND
THE CO-BRANDED PAGES.
23.6 LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF SERVICES,
THE USE OR INABILITY TO USE ANY SERVICE, SITES, THE JUMP PAGES, OR
ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL
REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES
ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION
HEREIN. EXCEPT AS PROVIDED HeREIN, (I) LIABILITY
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15
ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, OBJECTIVELY
MEASURABLE DAMAGES, AND EXCEPT WITH RESPECT TO SECTION EIGHTEEN HEREIN
(II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY
CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED ONE
MILLION DOLLARS ($1,000,000).
24. INDEMNIFICATION
24.1 Indemnity. Each Party shall defend, indemnify, save and hold harmless
---------
the other Party and the officers, directors, agents, affiliates,
distributors, franchisees and employees of the other Party from any
and all third Party claims, demands, liabilities, costs of expenses,
including reasonable attorneys' fees ("Liabilities"), resulting from
(i) the indemnifying Party's material breach of any duty,
representation, or warranty under this Agreement or (ii) the failure
by either Party to possess or maintain any material approval, consent,
license, permit, certificate or other right and permission now or
hereafter required to provide its services to consumers under this
Agreement .
24.2 Claims. If a Party entitled to indemnification hereunder (the
-------
"Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit,
investigation, arbitration or other proceeding against the Indemnified
Party by any third Party (each an "Action"); the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written
notice of such Action. Such notice shall (i) provide the basis on
which indemnification is being asserted and (ii) be accompanied by
copies of all relevant pleadings, demands, and other papers related to
the Action and in the possession of the Indemnified Party. The
Indemnifying Party shall have a period of ten (10) days after delivery
of such notice to respond. If the Indemnifying Party elects to defend
the Action or does not respond within the requisite ten (10) day
period, the Indemnifying Party shall be obligated to defend the
Action, at its own expense, and by counsel reasonably satisfactory to
the Indemnified Party. The Indemnified Party shall cooperate, at the
expense of the Indemnifying Party, with the Indemnifying Party and its
counsel in the defense and the Indemnified Party shall have the right
to participate fully, at its own expense, in the defense of such
Action. If the Indemnifying Party responds within the required ten
(10) day period and elects not to defend such Action, the Indemnified
Party shall be free, without prejudice to any of the Indemnified
Party's rights hereunder, to compromise or defend (and control the
defense of) such Action at the Indemnifying Party's expense. In such
case, the Indemnifying Party shall cooperate, at its own expense, with
the Indemnified Party and its counsel in the defense against such
Action and the Indemnifying Party shall have the right to participate
fully, at its own expense, in the defense of such Action. Any
compromise or settlement of an Action shall require the prior written
consent of both Parties hereunder, such consent not to be unreasonably
withheld or delayed.
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25. ASSIGNMENT
Neither Party shall assign or attempt to assign any of its rights or
obligations hereunder without the prior written consent of the other Party,
which shall not be unreasonably withheld. Without such consent, any
attempted assignment will be void.
26. AMENDMENT AND MODIFICATION
No amendment or modification of this Agreement shall be binding unless
executed in writing by both Parties.
27. SURVIVAL
Any terms of this Agreement, which by their nature extend beyond its
termination, shall remain in full force and effect until fulfilled and
apply to permitted successors and assignees.
28. CHANGE OF CONTROL OF AUTOWEB
Autoweb shall deliver one-half of the CarsDirect Shares, as adjusted for
forward and reverse stock splits to CarsDirect at no cost to CarsDirect if
a Change of Control of Autoweb involving a CarsDirect Competitor occurs
during the twelve-month period following the Effective Date. Further, in
the event of such a Change of Control, neither CarsDirect nor Autoweb shall
be bound by the exclusivity restrictions contained in Paragraph 1 of this
Agreement. In the event of such a Change of Control of Autoweb, this
Agreement will otherwise continue in full force and effect, including but
not limited to the Parties' respective obligations to promote each other
with similar prominence to other competitive offerings that may be added to
each other's sites.
29. SEVERABILITY
If any paragraph, sentence, clause, word or combination thereof in this
Agreement is judicially or administratively interpreted or construed as
being in violation of any such provision of any jurisdiction, such
paragraph, sentence, word, clause or combination thereof shall be
inoperative in each such jurisdiction and the remainder of this Agreement
shall remain binding upon the Parties hereto in each such jurisdiction and
the Agreement as a whole shall be unaffected elsewhere.
30. HEADINGS FOR CONVENIENCE
Paragraph headings herein are for the convenience of the Parties only, and
are not be given any substantive meaning in the interpretation of this
Agreement.
31. LAW TO GOVERN
The validity, construction and enforceability of this Agreement shall be
governed in all respects by the internal laws of the State of California
and the United States of America. If either Party institutes any lawsuit
to enforce its rights hereunder, the prevailing Party in any such suit, as
determined by the court, shall be entitled to recover from the other its
costs, including a reasonable attorney's fee and the costs of any
prevailing appeals therefrom.
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17
32. DISPUTE RESOLUTION
Any dispute, controversy, claim or disagreement between the parties hereto
arising from, relating to or in connection herewith, or the relationships
of the Parties, excluding any dispute, controversy, claim, disagreement or
document related to the ownership or right to use any Intellectual Property
Rights, but including questions regarding the interpretation, meaning or
performance of this Agreement and including non-Intellectual Property
Rights claims based on contract, tort, common law, equity statute,
regulation, order or otherwise ("Dispute") shall be resolved in accord with
Exhibit E.
33. TRADEMARKS
33.1 Trademark License. Each Party shall be entitled to use the trade
-----------------
names, trademarks and service marks of the other Party for which the
other Party holds all rights necessary for use in connection with
this Agreement (the "Marks"); provided that a Party: (i) shall not
---------
create a unitary composite xxxx involving a Xxxx of the other Party
without the prior written approval of such other Party; or (ii) shall
display symbols and notices clearly and sufficiently indicating the
trademark status and ownership of the other Party's Marks in
accordance with applicable trademark law and practice.
33.2 Ownership of Trademarks. Each Party acknowledges the ownership right
-----------------------
of the other Party in the Marks of such other Party and agrees that
all use of the other Party's Marks shall inure to the benefit, and be
on behalf, of the other Party. Each Party acknowledges that is
utilization of the other Party's Marks shall not create in it, nor
shall it represent it has, any right, title, or interest in or to such
Marks other than the licenses expressly granted herein. Each Party
agrees not to do anything contesting or impairing the trademark rights
of the other Party.
33.3 Quality Standards. Each Party agrees that the nature and quality of
-------------------
its products and services supplied in connection with the other
Party's Marks shall conform to quality standards set by the other
Party. Each Party agrees to supply the other Party, upon request,
with a reasonable number of samples of any Materials publicly
disseminated by such Party which utilize the other Party's Marks.
Each Party shall comply with all applicable laws, regulations, and
customs and obtain any required government approvals pertaining to use
of the other Party's marks.
33.4 Infringement Proceedings. Each Party agrees to promptly notify the
-------------------------
other Party of any unauthorized use of the other Party's Marks of
which it has actual knowledge. Each Party shall have the sole right
and discretion to bring proceedings alleging infringement of its Marks
or unfair competition related thereto; provided, however, that each
Party agrees to provide the other Party with its reasonable
cooperation and assistance with respect to any such infringement
proceedings.
34. PROVISION OF PERSONNEL AND MATERIALS
There are no third Party beneficiaries of this Agreement. Each Party shall
be financially responsible for the personnel, equipment and materials
needed to perform its obligations hereunder.
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18
35. PUBLICITY
The Parties will jointly prepare and issue mutually agreed upon press
releases concerning their relationship, the existence of this Agreement and
the terms hereof. The press release(s) shall include but not be limited to
the following points:
. Autoweb will place a direct option on its site to allow consumers to visit
CarsDirect to configure and purchase a vehicle. CarsDirect is the Direct
infrastructure partner for Autoweb, jointly offering a direct sale option
to Autoweb's consumers.
. CarsDirect and Xxxxx.xxx will place exclusive links on their sites to
Xxxxxxx.xxx
. Visitors to the CarsDirect site will also have an option to link to
Xxxxxxx.xxx to list their used cars for sale.
. Autoweb and CarsDirect agree to explore ways in which Autoweb could be a
premier infrastructure partner for CarsDirect jointly building out
Xxxxx.xxx and marketing it into the automotive industry.
Otherwise, no public statements concerning the existence or terms of this
Agreement shall be made or released by a party to any medium except with
the prior approval of the other party or as required by law.
36. FORCE MAJEURE
Except as otherwise provided herein, each Party shall be excused for any
defaults or delays in the performance of its obligations hereunder if and
to the extent such default or delay is caused, directly or indirectly, by
fire, flood, earthquake, elements of nature or acts of God, acts of war,
terrorism, riots, civil disorders, rebellions or revolutions in the United
States, strikes, lockouts, or labor difficulties, or any other act clearly
beyond the reasonable control of such Party. In such event, the affected
Party will be excused from any further performance or observance of the
obligation(s) so affected for as long as such event continues; provided
that such Party gives the other Party prompt notice of such force majeure
event and of the anticipated delay, and the affected Party is diligent in
attempting to remove or cure such cause and to mitigate the delay.
Performance shall be excused only for the duration of the force majeure
event.
37. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
38. SCOPE
This Agreement is intended to apply only to the United States of America
and shall not apply in or to any foreign jurisdictions or countries.
39. WEBSITE CONTROL
The Parties shall bear the risks and liabilities associated with errors and
omissions arising from their respective websites.
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40. ENTIRE AGREEMENT
This Agreement, including each Exhibit attached hereto, and the investment
agreement referenced in Paragraphs 6 and 7, constitutes the complete and
exclusive agreement between the Parties and supersedes all prior
representations, understanding, and communications, oral and written,
between the Parties relating to the subject matter thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
XXXXXXXXXX.XXX, INC. XXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. XxXxxxx
------------------------------- --------------------
Xxxxxx X. Xxxxxx Xxxx X. XxXxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
Date: March 16, 2000 Date: March 16, 2000
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EXHIBIT A
SEE ATTACHED DOCUMENT
[***]
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EXHIBIT B
DEFINITIONS
The following definitions shall apply to this Agreement:
1. "Affiliate(s)" means any Person that, directly or indirectly, through one
or more intermediaries, (a) owns or controls another Person, (b) is owned
or controlled by another Person, or (c) is under common control or
ownership with another Person. As used herein, "control" means the power to
direct the management of affairs of a Person, and "ownership" means the
direct or indirect beneficial ownership of more than 50% of the equity
securities of a Person, or in the case of a Person that is not a
corporation, more than 50% of the voting and/or equity interest.
2. "Automobile" means any new motor vehicle designed for use on public
roadways, including but not limited to standard passenger cars, sport
utility vehicles, vans and minivans and light trucks
3. "Automobile Purchase" means (i) a purchase or lease of an Automobile by an
Automobile Purchaser; (ii) for which CarsDirect has received and reported
as revenue the purchase or lease price therefrom. Provided further, an
Automobile Purchase shall be deemed to be consummated upon delivery of an
Automobile to the Automobile Purchaser who is purchasing or leasing such
Automobile and the confirmation of such delivery (and acceptance thereof)
by CarsDirect in accordance with its standard practices.
4. "Automobile Purchase Marketing Fees" means the "Price Per Car Sold" set
forth on Exhibit A.
5. "Automobile Purchaser" means a D1 or D2 Lead that completes an Automobile
Purchase with CarsDirect.
6. "Auto Response Email" shall mean the email sent by CarsDirect to D1 Leads
(the content of which shall be determined by CarsDirect but branding of
which will be mutually agreed by the Parties per Paragraph 3.1) that allows
such D1 Leads to access the Co-Branded Site.
7. "Autos Site" means the web site owned by CarsDirect located at the URL
xxxx://xxx.xxxxx.xxx.
--------------------
8. "Autoweb Competitor" means any Person principally engaged in the Referral
Business Model.
9. "Autoweb Configurator" means the data, tools and logic designed and
produced by Autoweb and its division, Automotive Information Center, which
allows a consumer to dynamically and correctly specify all options and
packages for a specific vehicle (year, make, model, trim). Such tool may
include pricing (MSRP, Invoice and other) associated with specific option
and package selections.
10. "Autoweb Jump Page(s)" means the page(s) to be designed and produced by
Autoweb and CarsDirect and hosted by Autoweb or CarsDirect to which Leads
will link until Xxxxx 0 Xxxxx Xxx and that shall also be linked to the
CarsDirect Site.
11. "Autoweb Site" means the consumer automotive Internet site located at the
URL http:// xxx.xxxxxxx.xxx.
---------------
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12. "CarsDirect Competitor" shall mean ***.
13. "CarsDirect Configurator" means the data, tools and logic designed and
produced by CarsDirect which allows a consumer to dynamically and correctly
specify all options and packages for a specific vehicle (year, make, model,
trim). Such tool may include pricing (MSRP, Invoice and CarsDirect)
associated with specific option and package selections.
14. "CarsDirect Jump Page(s)" means the page(s) to be designed and produced by
CarsDirect and Autoweb and hosted by CarsDirect or Autoweb to which
Referrals will link and that shall also be linked to the Autoweb Site.
15. "CarsDirect Prohibited Transaction" means ***.
16. "CarsDirect Purchase Request" means (i) a request under the Direct
Transaction Business Model to purchase a specified Automobile submitted at
the Co-Branded Site by a Visitor to the Autoweb Site who arrives at the Co-
branded Site via a link from the Autoweb Site; (ii) for which all mandatory
fields have been completed, including but not limited to, name, address,
phone number and valid e-mail address; (iii) for which CarsDirect has not
received within the previous thirty (30) day period, a request for a
similar Automobile from a person identified by the same name and/or e-mail
address; and (iv) which is accompanied by the required Purchase Request
deposit.
17. "CarsDirect Site" means the consumer automotive Internet buying service
site located as xxx.xxxxxxxxxx.xxx.
------------------
18. "Change of Control" means the transfer of Control from the Person or
Persons who hold such Control on the Effective Date.
19. "Control" means possessing, directly or indirectly, the power to direct or
cause the direction of the management and policies of any entity, whether
through ownership of voting securities, by contract or otherwise. For
purposes of the preceding sentence, "ownership" means the direct or
indirect beneficial ownership of more than 50% of the equity securities of
a Person, or in the case of a Person that is not a corporation, more than
50% of the voting and/or equity interest.
20. "Co-Branded Site" means a version of the CarsDirect Site that is branded
with CarsDirect and Autoweb logos and trademarks, and the Autoweb frame
(which is currently in development) when technically feasible and
commercially reasonable The Co-Branded Site shall consist either of a set
of web pages that are separate and distinct from those that otherwise
constitute the remainder of the CarsDirect Site or, at the election of
CarsDirect, shall be a set of web pages that are dynamically created for
presentation to visitors to the Co-Branded Site in a manner that is
consistent with (I) this definition, and (II) the other provisions of this
Agreement that describe the content of the web pages that are to constitute
the Co-Branded Site.
21. "D1 Lead" means a Visitor to the Autoweb Site that (i) submits to Autoweb a
Purchase Request, (ii) is referred to the Autoweb Jump Page and (iii)
receives the Auto Response Email from CarsDirect; and (iv) is uniquely sold
to CarsDirect.
22. "D1 Lead Fee" shall have the meaning set forth on Exhibit A.
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23. "D1 Lead Maximum" shall have the meaning set forth on Exhibit A
24. "D2 Lead" means a Visitor to the Autoweb Site that chooses the Direct
Transaction Business Model and completes the Direct Flow as defined in
Exhibit D.
25. "D2 Lead Fee" shall have the meaning set forth on Exhibit A.
26. "D2 Lead Minimum" shall have the meaning set forth on Exhibit A.
27. "Dark State(s)" means those U.S. States from where CarsDirect declines to
accept D1 or D2 Leads, as per the Lead Criteria on Exhibit A.
28. "Direct Transaction" means the pursuit by a consumer of an Automobile
Purchase by way of the Direct Transaction Business Model.
29. "Direct Transaction Business Model" means the method of doing business for
an Automobile Purchase over the Internet in which a consumer configures a
new Automobile, receives an up front selling price (as distinct from "MSRP"
or "Invoice Price") for the configured vehicle and facilitates the
transaction in some manner. In general, this includes models which are
similar to those employed by ***.
30. "Direct Transaction Placement" shall mean the prominently displayed fixed
placement pages on the Autoweb Site that shall offer Visitors to the
Autoweb Site the ability to initiate a Direct Transaction. The Parties
shall collaborate on the design, layout and posting of the Direct
Transaction Placement.
31. "Dispute" has the meaning given to it in Paragraph 31.
32. "Excluded Party" means ***.
33. "Intellectual Property Rights" means any patents, inventions, invention
disclosures, Marks (as defined hereinafter), material trade secrets, know-
how, formulae and processes, software programs (except off-the-shelf
commercial programs licensed from third Parties), proprietary data and
databases, copyrights and all other similar items of intellectual property,
whether registered or unregistered, including any rights created by use
thereof. "Marks" shall mean all right, title and interest in and to any
United States or foreign trademarks, service marks and trade names,
including any registration or application for registration of any
trademarks and service marks in the United States Patent and Trademark
Office or the equivalent thereof in any state of the United States or in
any foreign country, as well as any unregistered marks, and any trade dress
(including logos, designs, company names, business names, fictitious names
and other business identifiers) in the United States or any foreign
country.
34. "Launch" means activation of the Co-Branded Site, and the Direct
Transaction Placement for purposes other than testing for availability to
the general public.
35. "Leads" means individually or collectively the D1 Leads and the D2 Leads.
36. "Lead Criteria" means those parameters for Leads described on Exhibit A.
37. "Lead Fees" means individually or collectively the D1 Lead Fees and the D2
Lead Fees.
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38. "Person" means any natural person, corporation, partnership, limited
liability company or other entity.
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39. "Purchase Request" means the process and information in which a consumer
provides basic information on the features and attributes of the Automobile
he desires, has the opportunity to research further information on the
desired Automobile, and provides his personal information (including
Automobile make, Automobile model, Automobile trim, Automobile exterior and
exterior color, Automobile engine, Automobile options, name, address, email
address, phone number, purchase method information, expected Automobile
Purchase time, trade in status, and any other information generally
collected by Autoweb from Visitors to the Autoweb Site who submit Purchase
Requests) for a third party (such as a dealer, manufacturer or other) to
contact the consumer to negotiate the consumer's Automobile Purchase.
Purchase Requests are used only in the Referral Business Model.
40. "Referral Business Model" and "Referral Business" means a company that is
(i) the principal in and (ii) is principally engaged in the referral of
Purchase Requests for new Automobiles to new car franchised Automobile
dealers and Automobile manufacturers and provided that such Referral
Business has a minimum of 400 Automobile dealers (with the dealerships and
franchises of each "consolidator group", dealer group and mega-dealer
counted together as one Automobile dealer); provided, however, the Persons
or classes of Persons listed on Exhibit H shall not be deemed a Referral
Business.
41. "Tracked Links" means a link from the CarsDirect Site or Xxxxx.xxx to the
Autoweb Site.
42. "Undesirable Leads" has the meaning given to it in paragraph 2.1
43. "Visitor" means a consumer who visits a website.
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