Exhibit 10.17
SERVICES AGREEMENT
Agreement #4727911
This Services Agreement (the "Agreement") between Downtown Web, Inc. d.b.a.
▇▇▇▇▇▇▇.▇▇▇ ("VENDOR"), a California corporation, whose address is ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and State Farm Mutual Automobile Insurance
Company, an Illinois corporation, acting on its behalf and that of its
subsidiaries and affiliates ("STATE FARM"), a company having its corporate
headquarters at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, shall be effective
according to its terms as of the "Effective Date" (as defined on the signature
page attached hereto). Any capitalized terms not defined in the body of this
Agreement are defined in Exhibit "A" attached hereto.
W I T N E S S E T H
WHEREAS, VENDOR has developed and operates an Internet WWW site for the
purpose of promoting, marketing, and facilitating the sale of cars and car
insurance; and
WHEREAS, certain services and participation in VENDOR's services are
requested by STATE FARM; and
WHEREAS, VENDOR has agreed to provide such services and participation in
accordance with the terms and conditions of the Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. VENDOR agrees to provide those services to STATE FARM as set forth in
Exhibit A, attached hereto and incorporated here in (the "Services"). In
exchange for the Services, STATE FARM shall pay to VENDOR the fees as are set
forth in Exhibit A.
Bills for all other fees described in Exhibit A are due and payable by
STATE FARM within thirty (30) days of the receipt of an accurate invoice by
STATE FARM.
2. Each party shall keep confidential, and not use for any purpose except to
perform its respective obligations pursuant to this Agreement, and proprietary,
trade secret, business, copyright, patent or other such information of the other
party, or of any of its vendors, suppliers, independent contractor insurance
agents or customers, which it learns as the result of carrying out its
obligations thereunder ("Confidential Information"); provided, however, that
Confidential Information does not include information that: (a) receiving party
can demonstrate was known by receiving party prior to the disclosure thereof by
disclosing party; (b) properly came into the possession of receiving party from
a third party which was not under any obligation to maintain the confidentiality
of such information; (c) has become part of the public domain through no act or
fault on the part of the receiving party in breach of this Agreement; or (d)
receiving party can demonstrate was independently developed by or for receiving
party without the use of
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have
been omitted from the public filing and have been filed separately
with the Securities and Exchange Commission.
Confidential Information. Each party expressly further agrees that it shall
return any such information and copies thereof to the other party upon
completion of its duties under this Agreement, or upon the other party's
request. The terms of this Section 2 shall survive the termination of this
Agreement. The foregoing prohibition on non-disclosure shall not apply to the
extent that disclosure of Confidential Information to proper legal and
regulatory authorities is required by law or regulation. In the event the
receiving party receives a request to disclose all or any part of the
Confidential Information under the terms of a valid subpoena or order issued by
a court of competent jurisdiction or by a governmental body, the receiving party
agrees to: (a) notify the disclosing party promptly of such request; (b) provide
the disclosing party with reasonable assistance in obtaining an order or other
reliable assurance that confidential treatment will be accorded to such portion
of the Confidential Information that the disclosing party so designates. The
parties acknowledge that a breach of the Section 2 would cause irreparable harm
to the disclosing party, which would not have an adequate remedy at law, and
agree that such party may seek equitable relief.
3. VENDOR represents and warrants that it has the ability an expertise to
perform its responsibilities hereunder and shall perform the Services in a
professional and workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, VENDOR MAKES NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, AS TO THE
SERVICES, MATERIALS, OR INFORMATION PROVIDED HEREUNDER, AND HEREBY EXPRESSLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE.
4. The parties expressly agree that VENDOR shall be an independent contractor
for all purposes in the performance of this Agreement and that none of its
employees or agents shall be considered an employee of STATE FARM for any
purpose.
5. The parties agree the HTML content of STATE FARM's carrier screen and
carrier information shall be developed specifically for STATE FARM by VENDOR and
shall be considered a "Work Made for Hire". Such content shall be the sole and
absolute property of STATE FARM and STATE FARM reserves all rights of ownership,
including but not limited to copyright and other proprietary rights. Except for
STATE FARM's ownership of the content of the foregoing carrier screen and
carrier information, the parties agree VENDOR shall acquire no ownership or
intellectual property rights in the form or content of carrier screen and/or
carrier information by virtue of its posting on the VENDOR's site, nor shall
STATE FARM acquire any rights in the form or content of the VENDOR's site or any
information posted thereon other than STATE FARM's own information.
6. a. VENDOR expressly agrees, anything herein to the contrary
notwithstanding, that it shall indemnify, defend, and hold STATE FARM fully
harmless against any loss, damages, claims or expenses of any kind whatsoever,
including costs and reasonable attorneys' fees, which STATE FARM shall incur to
the extent caused by or arising from the negligent acts of, or negligent failure
to act by VENDOR, its employees or agents in the performance of this Agreement.
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b. STATE FARM expressly agrees, anything herein to the contrary
notwithstanding, that it shall indemnify, defend and hold VENDOR fully harmless
against any loss, damages, claims of expenses of any kind whatsoever, including
costs and reasonable attorneys' fees, which VENDOR shall incur to the extent
caused by or arising from the negligent acts of, or negligent failure to act by
STATE FARM or its employees or agents in the performance of this Agreement.
c. In the event of an indemnifiable event, either party shall give prompt
notice of any such claim to the other party, and the indemnifying party shall
have the right and obligation to control and direct the investigation, defense
and settlement of each such claim. The indemnified party shall reasonably
cooperate in connection with the foregoing. The rights and obligations of the
parties pursuant to this Section 6 shall survive any termination or expiration
of this Agreement.
7. The term of this Agreement shall be as set forth in Exhibit A and shall run
for an initial period of six (6) months from date of execution. If either party
neglects or fails to perform any of its material obligations under this
Agreement and such failure continues for a period excess of thirty (30) days
after written notice (containing a reasonably detailed statement of the alleged
failure to perform) thereof from the non-breaching party, the non-breaching
party shall have the right to terminate this Agreement immediately upon further
written notice to the breaching party. During any notice and cure period, both
parties shall continue to be bound by all the terms and conditions of this
Agreement.
8. Anything in the Agreement to the contrary notwithstanding, neither party may
delegate or assign its rights or duties under the Agreement to any other entity,
including an entity which affiliates or merges with or acquires such party,
except when such delegation or assignment is approved in advance by the other
party in writing, which approval shall not be unreasonably withheld.
9. EXCEPT FOR SECTIONS 6 AND 12, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT,
CIRCUMSTANTIAL, OR INCIDENTAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OF DATA,
OR INTERRUPTION OF BUSINESS OF ANY KIND WHATSOEVER IN ANY WAY ARISING OUT OF OR
RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE,
EVEN IF ANY REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
OR COULD HAVE FORESEEN SUCH DAMAGES. EXCEPT FOR SECTIONS 6 AND 12, IN NO EVENT
WHATSOEVER SHALL EITHER PARTY'S LIABILITY FOR DIRECT DAMAGES TO THE OTHER PARTY
FOR ANY OTHER REASON WHATSOEVER EXCEED IN THE AGGREGATE THE SUM OF FIFTY
THOUSAND DOLLARS ($50,000.00). THE FOREGOING LIMITATION OF LIABILITY SHALL NOT
APPLY TO THE COMPENSATION PAYABLE UNDER THIS AGREEMENT.
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10. It is expressly agreed that if either party, on any occasion, fails to
perform any term of this Agreement, and the other party does not enforce that
term, the failure to enforce on that occasion shall not constitute a waiver of
that term by the other party. A waiver of any provision of this Agreement or
any right or obligations of either party hereunder shall be effective only to
the extent provided to a writing signed and delivered by the party waiving
compliance.
11. Anything in this Agreement to the contrary notwithstanding, under no
circumstances whatsoever shall STATE FARM pay any taxes which it does not
customarily pay in transactions of the nature set forth in this Agreement.
Under no circumstances whatsoever shall STATE FARM be liable for any penalties,
fines or other such charges incurred due to the failure of VENDOR to timely pay
when due any taxes owed by it under this Agreement.
12. Anything in this Agreement to the contrary notwithstanding, each party at
its own expense shall defend, indemnify and hold the other fully harmless
against any action asserted against such party (and specifically including costs
and reasonable attorneys' fees associated with any such action) to the extent
that it is based on a claim that any materials, content or services provided by
the indemnifying party under this Agreement infringe upon any patent, copyright,
license or other property right or proprietary right of any third party (as used
in this Section 12, a "Claim of Infringement"): Either party shall promptly
notify the other in writing of any such claim. If as a result of any Claim of
Infringement, the indemnified party is enjoined from using the materials,
content or services, or if the indemnified party believes that such materials,
content or services are likely to become the subject of a Claim of Infringement,
the indemnifying party as its option and expense may procure the right for the
indemnified party to continue to use the materials, content or services, or
replace or modify the materials, contents or services so as to make such non-
infringing. The rights and obligations of the parties pursuant of this Section
12 shall survive any termination or expiration of the Agreement so long as such
replacement or modification shall not materially degrade the performance
rendered to the indemnified party pursuant to this Agreement. A party shall not
have any liability under this Section 12 to the extent the Claim of Infringement
is caused by the party seeing indemnification hereunder.
13. Neither party shall be liable for any delays in performance hereunder due
to unforeseen circumstances beyond its control including, but not limited to,
acts of nature, fire, flood, acts of governments, delays in transportation, and
delays in delivery or inability of suppliers to deliver. In such event, this
Agreement shall remain valid and the rights and obligations it sets forth shall
be resumed when such party shall again be able to perform its obligations;
however, in such event, the parties hereby mutually agree on an outside
limitation date not in excess of sixty (60) days. If such party is unable to
resume the performance of its obligations within such period, then either party
shall have the option to terminate this Agreement by so notifying the other
party in writing.
14. This Agreement together with Exhibit A hereto shall be an agreement binding
upon each of the parties hereto, their successors and, to the extent permitted,
their assigns. This Agreement shall be effective upon written execution by both
parties. This Agreement
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shall be governed by the laws of the State of Illinois without regard to its
conflict of laws procedures. This Agreement cannot be amended or otherwise
modified except as agreed to in writing by each of the parties hereto. This
Agreement and Exhibit A represent the sole agreement between the parties and
supersede and merge any prior agreement, oral or written, between the parties
with respect to the subject matter hereof, including, but not limited to any
letters of intent and confidentiality agreements. Any additional or different
terms in the parties' communications, whether acknowledgments, invoices or
otherwise, are hereby deemed to be material alterations and notice of objection
to them and rejection of them is hereby given. The headings used in this
Agreement are for convenience only shall not be considered in its
interpretation.
15. VENDOR expressly agrees that it shall not disclose or otherwise identify
STATE FARM or any of its subsidiaries or affiliates in any of VENDOR's
advertising, publications or other media which are displayed or disseminated to
VENDOR's customers or other parties. The foregoing shall not apply to (I)
VENDOR including STATE FARM's name or trademarks on its website as specified in
this Agreement; or (ii) a one-time single-issuance initial press release by
VENDOR, subject to STATE FARM's advance written approval, announcing the
addition of STATE FARM to the VENDOR's site under this Agreement. This section
shall survive the termination or expiration of this Agreement.
16. Except as otherwise specified herein, all notices, demand or communications
required hereunder shall be in writing and delivered personally, or sent either
by the equivalent of U.S. certified mail, postage prepaid return receipt
requested or by overnight delivery air courier (e.g. Federal Express) to the
parties at their respective addresses set forth on the signature page attached
hereto. All notices, requests, demands, or communications shall be deemed
effective immediately upon the earlier of personal delivery, or four (4) days
following deposit in the mails as set forth above, or one (1) business day
following delivery to the overnight delivery air courier in accordance with this
section. The parties may change their respective addresses for notification of
five (5) days advance written notice pursuant to the procedures set forth in
this Section.
17. Each party shall, at its own expense, comply with any applicable
governmental law, statute, ordinance, administrative order, rule, or regulation
relating to its business or its duties, obligations and performance under this
Agreement, shall procure and maintain in force all governmental licenses and pay
all fees and other charges required thereby; including, but not limited to STATE
FARM's obligation to obtain regulatory approval for the terms and conditions of
its applications, policies, endorsements, forms and advertising, and shall
cooperate to the extent reasonably necessary to enable the other party hereto to
comply with applicable law or regulations, or the reasonable requirements,
requests or investigations of proper regulatory authorities.
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IN WITNESS WHEREOF, VENDOR and STATE FARM have caused this Agreement to be
executed by their respective, duly authorized officers.
This Agreement shall become effective on the date the second of the two
parties to sign executes this Agreement below.
DOWNTOWN WEB, INC. STATE FARM MUTUAL AUTOMOBILE
d.b.a. ▇▇▇▇▇▇▇▇.▇▇▇ INSURANCE COMPANY
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Signature Signature
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Printed or Typed Name Printed or Typed Name
Co-Founder and EVP Agency Vice President
----------------------------------- ---------------------------------------
Title Title
1/20/98 1/21/98
----------------------------------- ---------------------------------------
Date Date
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EXHIBIT A
Term:
One (1) year with an option to renegotiate after the initial six (6)
months.
Distribution:
STATE FARM will be provided with a fixed presentation on VENDOR's insurance
page.
Program:
Individuals interested in receiving insurance quotes will fill out an
inquiry form and the information will be submitted to STATE FARM.
Inquiries:
STATE FARM inquiries will be sent twice daily to the closest STATE FARM
agent. A copy may also be E-mailed to STATE FARM's headquarters.
Promotions:
This partnership will be promoted through the VENDOR's website.
Compensation:
$[ ]** inquiry will be invoiced on a monthly basis.
A $[ ]** set-up fee will be due immediately. This fee will be set
against the initial [ ]** inquiries.
-------------
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have
been omitted from the public filing and have been filed separately
with the Securities and Exchange Commission.
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AMENDMENT #1
This is an Amendment (the "Amendment") to that certain Services Agreement,
Agreement #4727911, dated January 21, 1998, (the "Agreement") between State Farm
Mutual Automobile Insurance Company, its subsidiaries and affiliates ("STATE
FARM") and Downtown Web, Inc., d/b/a ▇▇▇▇▇▇▇.▇▇▇, Inc. (the "VENDOR").
W I T N E S S E T H
-------------------
WHEREAS, the parties have entered into the Agreement, and as it is the
desire of the parties to amend the Agreement as herein set forth, the parties
agree as follows:
1. A new Exhibit B shall be added, which is attached hereto and
incorporated herein by reference.
2. All references to "Exhibit A" in the Agreement shall mean and refer to
Exhibits A and B.
3. Section 9 of the Agreement is amended as follows: The first clause of
the first and second sentences shall read; "Except for Sections 6, 12
and State Farm's representations and warranties in "Services" in
Exhibit B.
4. This Amendment, together with the Agreement (and any attachments,
addenda, and supplements thereto) shall be the complete and exclusive
statement of the Agreement between the parties as to the subject
matter of the Agreement, and shall be binding upon each of the parties
hereto. In the event of a conflict between the terms and conditions
hereof, and the terms and conditions of the Agreement, the terms and
conditions hereof shall govern. Neither this Amendment nor the
Agreement can be amended or otherwise modified, except as agreed to in
writing by each of the parties hereto. This Amendment, together with
the Agreement, shall be governed by the internal laws of the State of
Illinois and shall be effective upon execution by both parties.
5. Except as expressly amended herein, the Agreement shall remain in full
force and effect.
** Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have
been omitted from the public filing and have been filed separately
with the Securities and Exchange Commission.
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This Amendment shall become effective on the date the second of the two
parties to sign executes this Amendment below.
Downtown Web, Inc., d/b/a STATE FARM MUTUAL
▇▇▇▇▇▇▇.▇▇▇, INC. AUTOMOBILE
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Signature Signature
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
Printed or Typed Name Printed or Typed Name
Chief Financial Officer Vice President and Controller
----------------------------------- ---------------------------------------
Title Title
1/5/99 January 5, 1999
----------------------------------- ---------------------------------------
Date Date
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Exhibit B
Term:
----
One (1) year commencing February 1, 1999.
Right of First Refusal:
----------------------
VENDOR grants STATE FARM an option to renew this Agreement for an
additional year starting February 1, 2000, on terms and conditions to be
mutually agreed upon by the parties. Such option must be exercised by
STATE FARM on or before January 31, 2000. VENDOR also grants STATE FARM
the right of first refusal for any bonafide written offer received by
VENDOR from a third party. VENDOR must submit a copy of any written offer
to STATE FARM within 7 days of receipt if VENDOR plans to accept such
offer. STATE FARM will have the option to agree to match the offer for a
period of 30 days after its receipt of such offer from VENDOR.
Services:
--------
VENDOR will provide STATE FARM's Car Finance Plan Program with the
exclusive fixed presentation for financing available to users from various
pages within the VENDOR's ▇▇▇▇▇▇▇.▇▇▇ site in the United States as
determined by VENDOR and is reasonably acceptable to STATE FARM.
STATE FARM's Car Finance Plan participating lenders shall be solely
responsible for processing the financing applications and providing notice
of acceptance or rejection to applicants. STATE FARM warrants and
represents that it will require the participating lenders to perform all
such service in a prompt and professional manner and to comply with all
applicable laws and regulations. VENDOR shall not be deemed in any way to
be responsible for the manner in which STATE FARM or the participation
lenders conduct their business. If VENDOR is contacted by a STATE FARM
customer, VENDOR's sole responsibility to such customer shall be to provide
that customer with information to contact STATE FARM directly.
Program:
-------
Individuals interested in receiving automobile financing will fill out an
inquiry form and the information will be submitted to the applicable Car
Finance Plan participating lenders as may be agreed between the parties.
Inquiries:
---------
STATE FARM financing applications will be transmitted to STATE FARM's Car
Finance Plan Program and the participating lenders in a manner reasonably
acceptable to STATE FARM.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have
been omitted from the public filing and have been filed separately
with the Securities and Exchange Commission.
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Promotions:
----------
This program will be promoted through the VENDOR's United States web site.
Vendor will integrate the application throughout VENDOR's United States web
site in a manner reasonably acceptable to STATE FARM.
Compensation:
------------
[ ]** dollars ($[ ])** to be paid by January 15, 1999.
[ ]** dollars ($[ ])** per application after [ ]**
([ ])** applications have been provided to STATE FARM's
participating lenders.
[ ]** dollars ($[ ])** per funded loan after [ ]**
([ ])** loans have been funded by the participating lenders.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have
been omitted from the public filing and have been filed separately
with the Securities and Exchange Commission.
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