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[*] Confidential treatment has been requested for certain portions of this
exhibit.
EXHIBIT 10.20
AT&T WorldNet(SM) Service
Site Page Sponsorship and Commission
Agreement
AT&T Corp., a New York corporation ("AT&T"), and Auto-By-Tel
Marketing Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, a
Delaware corporation ("Company") agree to enter into this Site Page Sponsorship
and Commission Agreement, including all schedules attached hereto (the
"Agreement"). This Agreement becomes effective when signed by Company and
accepted in writing by AT&T. The effective date (the "EFFECTIVE DATE") of this
Agreement shall be the date indicated below AT&T's signature on the Agreement.
Company and AT&T acknowledge receipt of good and valuable consideration for
making this Agreement and pursuant to the terms and conditions of this Agreement
agree as follows:
Key Definitions
"AT&T Contact" ▇▇▇▇▇▇ ▇▇▇▇
Advertising Sales Director,
AT&T WorldNet Service, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇
"Company Contact" ▇▇▇▇▇ ▇. ▇▇▇▇▇
CEO/President, Auto-By-Tel
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇: Fax: ▇▇▇-▇▇▇-▇▇▇▇
"Company Site" means the Company's World Wide Web site on the
Internet currently known as "Auto-By-Tel" at URL,
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇. All references to the Company
Site in this Agreement shall include the Tracked Pages as
defined below,
"Content" means information, data and/or other materials created by
Company and/or third parties, including all updates
thereof.
"Automotive Page" means the page of the Service, currently known as the
Automotive Page, and currently accessible at the home
page (i.e., the "explore view") of the Service at the
URLs, ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇;
or the equivalent of such Automotive Page as determined
by AT&T, which is the primary site within the Service
where automotive information and services are aggregated.
"Tracked Pages" means the pages of the Company Site to which a User can
link through the Service and be tracked in accordance
with Section 2.2.
"Market Square" means the page of the Service, currently known as Market
Square, or its equivalent as determined by AT&T.
"Members"/"Visitors"/ "Members" means registered subscribers of the Service;
"Users" Visitors" means users of AT&T WorldNet Service's public
sites on the Internet who are not Members; and "Users"
means Members and Visitors, collectively.
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"Service" means AT&T WorldNet Service.
"Teaser Material" means Content, such as financing material, race car
results, manufacturer news, recall information, etc., to
be provided by Company to AT&T and to be used to attract
users of the Service to the Tracked Pages in accordance
with Section 2.3
"Term" means the period commencing on the date of this Agreement
and, unless terminated earlier pursuant to Section 8,
ending six (6) calendar months following the month in
which the Deployment Date occurs, subject to renewal as
provided in Section 1.2 below.
1.0 Scope of Agreement
1.1 Sponsorship. During the Term, Company shall be the sole sponsor of
and the only Aggregate Automotive Service on the Automotive Page. "Sole sponsor"
means that, unless otherwise agreed by the parties, only the Company Icon,
Teaser Material and other Content provided by Company shall be displayed under
the 435 pixel width bar entitled " Automotive" on the Automotive Page.
"Aggregate Automotive Service" means a service that provides Internet users who
wish to purchase a car with the ability to place purchase requests with respect
to new and/or used cars..] If Company ceases to be the sole sponsor and the only
Aggregate Automotive Service on the Automotive Page, Company shall have the
right to terminate this Agreement in accordance with Section 8.
1.2 Deployment Date; Renewals. (a) The "DEPLOYMENT DATE" means the date
on which the Tracked Pages will first generally be made available to Users
through the Service, which date shall be mutually agreed upon by the parties.
(b) The Term shall automatically be extended for additional consecutive
six (6) month periods (each a "RENEWAL TERM") unless either party provides
written notice to the other party, at least thirty (30) days prior to expiration
of the Term, of its desire not to renew. Any reference herein to the "Term"
shall include each Renewal Term, if any.
1.3 Non-Exclusivity; The relationship specified in this Agreement shall
be nonexclusive for both parties (i.e., AT&T shall be entitled to make the sites
of other companies available anywhere on the Service, and the Company shall be
entitled to make the Company Site and any of its Content available through
online or Internet access services other than the Service).
1.4 Market Square. During the initial Term of this Agreement, Company
shall receive a text listing on, and link to the Company Site from, the "Market
Square" area of the Service. Any link from Market Square shall be tracked in
accordance with Section 2.2. The size and placement of the link shall be
determined by AT&T in its sole discretion.
2.0 Development of Automotive Page; Linkage & Tracking; Teaser Material;
Company Icon
2.1 Development of Automotive Page. (a) Company shall, at its expense,
develop and make available to AT&T Content for display on the Automotive Page in
accordance with Section 1.1. AT&T may reasonably require Company to present the
Content in a specific format and font, in order to fit graphically within the
look and feel of the Automotive Page, and the specific use determined by AT&T.
As between AT&T and Company, Company shall have sole ownership of all Content
provided by Company to AT&T for the Automotive Page.
(b) AT&T shall, at its expense, design and develop the Automotive Page
Trade Dress. "Automotive Page Trade Dress" means the general image, formats and
appearance (i.e., the "look and feel") of the Automotive Page, including without
limitation, the size and placement of the icons, Teaser Material and other
material, the distinctive headers on the page, the colors, designs
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and all other aspects of the page, as amended from time to time as provided in
Section 2.1 (d). As between AT&T and Company, AT&T shall have sole ownership of
all the Automotive Page Trade Dress.
(c) Except as expressly provided in Section 1.1 and in this Section
2.1 (c), AT&T may, at its discretion, place advertising or any other Content
anywhere on the Automotive Page, provided that no service offered and no
advertising displayed on the Automotive Page shall comprise or include an
Aggregate Automotive Service. All revenue received by AT&T from advertising or
such other Content, as between Company and AT&T, shall belong exclusively to
AT&T. No service offered at the Tracked Pages or through a transaction with a
User arising out of the Tracked Pages, and no advertising displayed at the
Tracked Pages, shall comprise or include local or long distance telephone
service or online or Internet access service (other than a service offered by
AT&T).
(d) AT&T may, at its discretion and at its expense, from time to time
modify or supplement the Automotive Page Trade Dress. AT&T may require Company
to modify or supplement, at Company's expense, the Content made available
through the Automotive Page upon reasonable advance notice.
(e) Company shall not (i) on the Company Site or otherwise use trade
dress that is substantially similar or confusingly similar to the Automotive
Page Trade Dress or (ii) make the Content available to third parties using trade
dress substantially similar or confusingly similar to the Automotive Page Trade
Dress.
(f) For Content that is of a "critical business nature," Company may
change or modify any Content made available by Company for use on the Automotive
Page upon one (1) business day prior notice to AT&T, and for Content that is of
a non-critical business nature, upon seven (7) calendar days prior notice,
provided that, in each case, the Content continues to meet the minimum
specifications as agreed to by the parties.
2.2 Linkage & Tracking. Users shall be linked from the Service with the
subset of the Company Site that constitutes the Tracked Pages, which shall be
identical to the corresponding pages of the Company Site accessed through the
URL ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ (except for the addition of the WorldNet Icon and other
changes as may be necessary to comply with the provisions of this Agreement) and
which shall have distinct URLs in order to ensure the separate and accurate
identification of all revenues generated by Users (as specified in Sections 4
below). Company will not invite or solicit any User, in their capacity as a User
of the Service, to connect directly with the Company Site by any means other
than through the Tracked Pages for the purpose of avoiding payment of commission
to AT&T. AT&T acknowledges that Company conducts extensive advertising aimed at
users of Internet at-large designed to attract users to the Company Site.
2.3 Teaser Material. From time to time, Company shall make available
Teaser Material to AT&T. The Teaser Material shall be located on Company's
server. AT&T may use the Teaser Material on or in connection with the Service,
either independently or in conjunction with the Company Icon, for purposes of
promoting visits by Users to the Tracked Pages. AT&T may reasonably require
Company to present the Teaser Material in a specific format and font, in order
to fit graphically within the look and feel of the Service, and the specific use
determined by AT&T. The Teaser Material may be used in AT&T's sole discretion as
a hyperlink icon appearing on the Service during the Term, which will link Users
with the Company Site. Teaser Material shall not contain advertisements, but may
contain references to Company programs or other promotions.
2.4. Company Icon. Company shall furnish to AT&T at least fourteen (14)
days prior to the Deployment Date, one full color representation, in "GIF" or
"JPEG" format (on diskette or by email), of Company's hyperlink icon ("Company
Icon") to be used to take Users from the Service to the Tracked Pages. If
Company subsequently modifies the Company Icon, it shall furnish a
representation in the same format which AT&T shall substitute for the prior
version within seven (7) days after receipt. The size and format of the Company
Icon shall be subject to the reasonable approval of AT&T. The Company Icon, may,
in AT&T's sole discretion, be included among the hyperlink icons appearing on
the Service during the Term; when clicked upon by a User, the Company Icon will
link that User with the Tracked Pages.
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2.5 Company Permissions. (a) Company hereby grants to AT&T during the
Term a worldwide, nonexclusive, nontransferable, nonassignable right (except as
provided in Section 10(c)) to use (i.e., to copy, transmit, distribute, display
and perform both privately and publicly), the Company Icon, the Company name,
the Company Site name, and other related textual and graphic material to be
provided by Company to AT&T from time to time (the "Other Material") on the
Service. Company also authorizes AT&T to refer in advertising, marketing and
promotion to the fact that the Tracked Pages are accessible through the Service,
provided that any such statement: (A) does not include any trademarks, service
marks, design marks, symbols and/or other indicia of origin of Company other
than Company's name and/or the Company Site name in a non-distinctive typeface
(i.e. not the typeface used in the logo design of either ▇▇▇▇); and (B) except
as set forth in Section 1.1, does not state, suggest or imply by the wording or
prominence of such statement, or otherwise, that Company co-brands, sponsors,
authorizes, and/or is the source or origin of the Service. All such use of the
Company Icon, the Company name, the Company Site name, and the Other Material
shall inure to the benefit of Company and shall not create any rights, title or
interest in them for AT&T. No other use of the Company's names, trademarks,
service marks, design marks, symbols and/or other indicia of origin will be made
by AT&T for any purpose, without the prior written approval of Company. AT&T
shall use the Company's name, the Company Site name and the Other Material in
accordance with such reasonable guidelines as Company may provide to AT&T from
time to time. AT&T agrees to cooperate with Company in facilitating Company's
monitoring and control of the use of its name and marks and to supply Company
with samples of AT&T's use of such names and marks upon request.
3.0 WorldNet Icon
3.1 WorldNet Icon. The graphic depicted on the attached Schedule A (the
"WORLDNET ICON") shall be displayed by Company on each of the Tracked Pages
during the Term, in the position within the page layout shown on Schedule A;
AT&T-shall furnish to Company at least fourteen (14) days prior to the
Deployment Date, a full color representation of the WorldNet Icon in "GIF or
"JPEG" format (on diskette) for Company's use under this Agreement. If AT&T
subsequently modifies the WorldNet Icon, it shall furnish a representation in
the same format which Company shall substitute for the prior version within
seven (7) days after receipt. If AT&T so requests, the WorldNet Icon shall be
implemented as a "return icon", which when clicked upon by a User will link such
User back to the Automotive Page or such other page as mutually agreed by the
parties.
3.2 AT&T Permissions. AT&T hereby grants to Company during the Term a
worldwide, nonexclusive, nontransferable, nonassignable right to use (i.e., to
copy, transmit, distribute, display and perform both privately and publicly) the
WorldNet Icon solely on each of Designated Page as provided in Section 3.1
above. AT&T also authorizes Company to refer in Company's advertising, marketing
and promotion to the fact that the Company Site is accessible through the
Service, provided that any such statement: (a) does not include any trademarks,
service marks, design marks, symbols and/or other indicia of origin of AT&T
other than the name of AT&T and/or the name of an agreed upon segment of the
Service and/or the name of the Service, in a nondistinctive typeface (i.e. not
the typeface used in the logo design of any such ▇▇▇▇); and (b) does not state,
suggest or imply by the wording or prominence of such statement, or otherwise,
that AT&T is co-branding, sponsoring, authorizing, and/or is the source or
origin of the Company Site or any Content or Company Products. All such use of
the WorldNet Icon shall inure to the benefit of AT&T. Nothing in this Agreement
shall create any rights, title or interest for Company in the WorldNet Icon
(except to the extent provided in the first sentence of this Section) or in any
of AT&T's other names, trademarks, service marks, design marks, symbols and/or
other indicia of origin and no use of such will be made by Company for any
purpose without the prior written approval of AT&T. Company shall use the
WorldNet Icon in accordance with such reasonable guidelines as AT&T may provide
to Company from time to time. Company agrees to cooperate with AT&T in
facilitating AT&T's monitoring and control of the use of the WorldNet Icon and
to supply AT&T with samples of use of the WorldNet Icon upon request.
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[*] Confidential Treatment Requested
4.0 Commissions.
4.1. Sponsorship Fee. (a) During the initial Term and in each Renewal
Term, if any, Company shall pay AT&T a non-refundable, monthly fee (the
"Sponsorship Fee") in arrears equal to (i) a minimum of [*] plus (ii) [*] for
each additional [*] Automotive Page Views over eighty thousand (80,000) in any
such month, with overages rolling up to next 10,000 increment. For example, if
there are [*] Automotive Page Views in a month, the Sponsorship Fee for that
month be [*] and if there are 90,001 Automotive Page Views in a month, the
Sponsorship Fee would be [*], and so on. The Sponsorship Fee shall not be less
than [*] in any month, regardless of the number of Automotive Page Views,
"Automotive Pages Views" means the number of times the Automotive Page is
served, as determined by a third party auditor selected by AT&T.
(b) During the initial Term, the Sponsorship Fee shall be capped at [*]
dollars per month. Beginning on the first day of each Renewal Term, if any, the
cap on the Sponsorship Fee shall be automatically adjusted in proportion to any
increase in the number of Members of the Service, as reported by AT&T on the
first day of such Renewal Term. For the purposes of this calculation, the
parties agree that the baseline for the number of Members of the Service for the
initial Term is nine hundred thousand (900,000). Thus, for example, if the
Agreement is renewed beginning on the date that is six-months after the
Deployment Date and the number of Members reported by AT&T on such date is
1,350,000, the monthly cap on the Sponsorship Fee for such six-month Renewal
Term shall be [*].
4.2 Commission Revenue. (a) During the initial Term, Company shall pay
AT&T [*] for each Unique New Vehicle Purchase Request made by a User after the
5000th Unique Vehicle Purchase Request in any one month. "Unique New Vehicle
Purchase Request" means any purchase request for a new vehicle by a User that is
received by Company for which Company has not, within the previous ninety (90)
day period, received a purchase request for a new vehicle from a person
identified by the same name and/or the same e-mail address.
(b) In addition, Company shall pay AT&T [*] dollars for each Unique Used
Car Inquiry by a User that results in a request for purchase information.
"Unique Used Car Inquiry" means any request for purchase information on a used
car from a User that is received by Company for which Company has not, within
the previous ninety (90) day period, received a request for purchase information
on a used car from a person identified by the same name and/or the same e-mail
address.
4.3 Tax Responsibility. Company is solely responsible and liable for the
collection and remittance of any applicable federal, state and/or local sales
taxes on all retail, advertising, and subscription membership, or similar sales.
4.4 Auditing. AT&T shall have the right, at its expense, upon five (5)
business days written notice and during Company's normal business hours, to
inspect and audit the site logs of the Company Site and other books and records
of Company as necessary to verify any reports, information or payments due to
AT&T under this Agreement. In the event of any shortfall in payment to AT&T is
found which exceeds five percent (5%) of the total due to AT&T for the reporting
period audited, Company shall reimburse AT&T for all reasonable costs of the
audit, including without limitation, accountant fees and attorney fees, without
limitation of AT&T's other rights and remedies.
4.5 Payments and Reporting to AT&T. (a) Payments. The first payment of
the Sponsorship Fee shall be due 30 days after the end of the calendar month
containing the Deployment Date, but shall be prorated based on the number of
days for which the Automotive Page was "live" in accordance with the terms of
this Agreement. All subsequent payments of the Sponsorship Fee shall be due
thirty (30) days after the end of the applicable calendar month. All other
payments under this Agreement are due thirty (30) days after the end of the
applicable calendar quarter. For
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all payments under this Agreement, Company will submit payment in full on or
prior to the due date pursuant to the terms set forth in Schedule B.
(b) Overdue Payments. Any amount payable by Company under Section 4 not
paid when due shall bear interest at a rate of fifteen (15) percent per annum
until paid in full. Such interest will be computed from the date payment was due
until the date actually received by AT&T.
(c) Company Reports. Within thirty (30) days following the close of each
calendar month for so long as Company or any Company Affiliate receives gross
consideration to which AT&T is entitled a commission (as provided in Sections
4.2), Company shall furnish AT&T with a statement showing the number of Users
who visited the Company Site, the number of Users who completed New Car Purchase
Requests and Used Car Inquiries during such month, and the calculation of the
payment due to AT&T from each such category.
4.6 Company Affiliate. "COMPANY AFFILIATE" means a corporation or other
entity that controls, is controlled by or is under common control with Company,
where "control" means the direct or indirect ownership or control of more than
fifty percent (50%) of the stock or other equity interest entitled to vote for
the election of directors or equivalent governing body.
5.0 Press Releases. Neither party shall issue any press release or other
public statement concerning the existence of this Agreement or the terms hereof
without the prior written approval of the other party. Any press release issued
by either party whose primary focus is the relationship established under this
Agreement shall give first and primary mention to the method of accessing the
Company Site set forth in this Agreement.
6.0 User Considerations.
6.1 Editorial Standards. The Content at the Company Site and any Content
provided to AT&T by Company shall at all times during the Term conform with the
Editorial Standards (annexed as Schedule C below).
6.2 Minimum Specifications. Company's server on which the Tracked Pages
will be hosted, and from which the Tracked Pages will be accessed by Users,
shall at all times meet the following minimum specifications: no page of the
Tracked Pages shall have a download time of more than sixty (60) seconds at a
modem speed of 28.8 kbps.
6.3 Customer Service Standards. Company shall adequately staff, equip,
maintain and offer to all Users, at its sole expense, customer services which
shall equal or exceed the standards which follow: Company shall (a) forward any
electronic mail inquiries regarding Users and/or the Service to AT&T within
twenty-four (24) hours following receipt; (b) electronically notify AT&T of any
failure of service regarding the Company Site that affects Users within sixty
(60) minutes of Company's becoming aware of its occurrence and give AT&T at
least twenty-four (24) hours prior notice of any scheduled down time; and (c)
provide AT&T with access (which may be by beeper) to Company's technical support
twenty-four (24) hours per day, three hundred sixty-five (365) days per year,
(d) display customer service contact information prominently and clearly within
the Company Site, (e) maintain a maximum response time for service inquiries
submitted by e-mail by Users of no more than twenty-four (24) hours.
6.4 Security Standards Company shall provide secure connections, Secure
Sockets Layer ("SSL"), to the Tracked Pages for the transfer of User information
required to complete an electronic transaction, if any, in which case, Company
shall provide and maintain the necessary hardware and software to support SSL,
version 2, at a minimum, at its sole expense. Company agrees to store all
User-identifiable information, including credit card information, off-line
behind a secure firewall. Company shall initiate all credit card settlements via
either direct dial connection or dedicated private line connection to the card
transaction processing agent.
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6.5 User Privacy. Company agrees that it will not sell, lease, barter,
or give away to third parties any User's name, telephone number, e-mail address,
residential address, office address and/or fax number. Company further agrees
that it will not send unsolicited e-mail messages or other unsolicited
communications to Users; except that Company may send e-mails to Users, so long
as such Users have an option at all times to elect not to receive such e-mail.
7.0 Confidentiality. The parties agree and acknowledge that, as a result of
negotiating, entering into and performing this Agreement, each party has and
will have access to certain of the other party's Confidential Information (as
defined below). Each party also understands and agrees that misuse and/or
disclosure of that information could adversely affect the other party's
business. Accordingly, the parties agree that, during the term of this Agreement
and thereafter, each party shall use and reproduce the other party's
Confidential Information only for purposes of this Agreement and only to the
extent necessary for such purpose and shall restrict disclosure of the other
party's Confidential Information to its employees, consultants or independent
contractors with a need to know and shall not disclose the other party's
Confidential Information to any third party without the prior written approval
of the other party. Notwithstanding the foregoing, it shall not be a breach of
this Agreement for either party to disclose Confidential Information of the
other party if compelled to do so under law, in a judicial or other governmental
investigation or proceeding, provided the other party has been given prior
notice to permit such other party a reasonable opportunity to object to the
judicial or governmental requirement to disclosure. As used in this Agreement,
the term "Confidential Information" refers to: (a) the terms and conditions of
this Agreement; (b) each party's trade secrets, business plans, strategies,
methods and/or practices; (c) any and all information which is governed by any
now-existing or future non-disclosure agreement between the parties; and (d) any
other information relating to either party that is not generally known to the
public, including information about either party's personnel, products,
customers, marketing strategies, services or future business plans.
Notwithstanding the foregoing, the term "Confidential Information" specifically
excludes (i) information that is now in the public domain or subsequently enters
the public domain by publication or otherwise through no action or fault of the
other party; (ii) information that is known to either party without restriction,
prior to receipt from the other party under this Agreement, from its own
independent sources, and which was not acquired, directly or indirectly, from
the other party; (iii) information that either party receives from any third
party having a legal right to transmit such information, and not under any
obligation to keep such information confidential; and (iv) information
independently developed by either party's employees or agents provided that
either party can show that such information was developed without reference to
the Confidential Information received hereunder. The provisions of this Section
shall apply for the duration of the Term of this Agreement and for three (3)
years after the expiration or termination of this Agreement.
8.0 Termination and Severance. (a) This Agreement may be terminated immediately
by either party (i) if the other party shall fail to do business in the normal
course or become subject to a bankruptcy or any similar proceeding, (ii) thirty
(30) days after delivery of written notice from the terminating party to the
effect that the other party has committed a material breach under this
Agreement, provided such breach is not cured within such thirty (30) day period,
(iii) if the Deployment Date does not occur within thirty (30) days of the
Effective Date of this Agreement, provided such termination right is exercised
before deployment occurs, (iv) thirty (30) days after delivery of written notice
that, in the case AT&T is the terminating party, AT&T intends to terminate all
or a substantial part of the Service, and, in the case Company is the
terminating party, Company intends to terminate all or a substantial part of the
Company Site, or (v) if Company ceases to be the sole sponsor and only Aggregate
Automotive Service on the Automotive Page, then Company shall have the right to
terminate this Agreement upon thirty (30) days' written notice to AT&T.
(b) If Company's Site fails to perform in accordance with this
Agreement, including, without limitation, with respect to "User Considerations"
under Section 6 or "Product Responsibility" under Section 9, AT&T shall have the
right at any time and at its discretion to sever immediately one or all of the
links between the Service and the Tracked Pages. In the event that AT&T ▇▇▇▇▇▇ a
link,
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AT&T will give Company prompt notice of such fact and Company shall have five
(5) days to resolve the problem to the reasonable satisfaction of AT&T. If the
link remains severed for more than ten (10) days, then AT&T may, immediately and
without further notice, terminate this Agreement.
(c) Amounts due and owing AT&T arising prior to any termination shall
continue to be paid to AT&T pursuant to Section 4, but AT&T shall not be
entitled to collect commissions or any Sponsorship Fee accruing after such
termination. The Sponsorship Fee payable upon termination shall be prorated
based on the number of days in the calendar month prior to the termination date.
9.0 Liability.
9.1 Product and Content Responsibility. Company acknowledges that AT&T
does not advocate or endorse the purchase or the use of products, if any, or
services offered by Company by or through the Company Site or otherwise (the
"COMPANY PRODUCTS"), nor does it guaranty the quality, fitness, or results of
any such Company Products or their compliance with any law or regulation; and
that AT&T is providing the Company Site an exposure on the Service to enable
Company to offer Company Products for sale and has no control over the selection
of goods or services offered for sale, over their quality or content or over the
Content, advertisements or any other material at the Tracked Pages or the
Company Site (except the WorldNet Icon). As between AT&T and Company, Company
shall have sole responsibility and liability for: (a) the quality of all Company
Products and compliance thereof with all Government Standards (defined in
Section 9.2 below) (including without limitation safety standards); (b)
processing all orders by Users of Company Products; and (c) shipping or
otherwise furnishing Company Products as ordered and in timely fashion, in the
event products are offered for sale by or through the Company Site. Company
agrees to furnish Company Products as ordered to all Users throughout the United
States and all of its possessions and territories, including Puerto Rico and the
U.S. Virgin Islands, as well as Canada. Company shall display adequate notices,
in a manner and form satisfactory to AT&T, on all Tracked Pages that offer
Company Products. "Adequate notices" means (a) the selling company's legal name
and place of business, (b) any territorial restrictions on the delivery of
products or services offered by or through the Company Site, (c) the selling
company's refund and return policies and (d) any other notices required by
applicable laws. Further, AT&T may require that Company reproduce the following
sentence in connection with Company Products offered on Tracked Pages: AT&T DOES
NOT ADVOCATE OR ENDORSE THE PURCHASE OR USE OF ANY OF THE PRODUCTS BEING OFFERED
FOR SALE BY [COMPANY], NOR DOES IT MAKE ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SUCH PRODUCTS OR THEIR COMPLIANCE OR
[COMPANY'S] COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION.
9.2 Representations and warranties of AT&T. AT&T represents and warrants
that: (a) AT&T has the right to enter into this Agreement and to grant the
rights and licenses granted herein; and (b) AT&T shall comply with all
applicable laws, statutes, ordinances, rules and regulations of each county,
state and city or other political entity with respect to the operation of the
Service (collectively, "Government Standards").
9.3 Representations and warranties of Company. Company represents and
warrants that: (a) Company has the right to enter into this Agreement and to
grant the rights and licenses granted herein; is the owner of the Company Site;
is a wholly-owned subsidiary of the Auto-By-Tel Corporation; and will cause the
Auto-By-Tel Corporation to execute a performance guarantee, in a form reasonably
satisfactory to AT&T, to cover its obligations under this Agreement; (b) the
Company Site and the reproduction, distribution, transmission, public
performance and public display of the Company Site, the Tracked Pages, the
Company name, the Company Site name, the Other Material and the Teaser Material
and any other Content provided to AT&T pursuant to this Agreement do not and
will not (i) invade the right of privacy or publicity of any third person, (ii)
contain any libelous, obscene, indecent or otherwise unlawful material; or (iii)
infringe any patent, copyright or trademark right in any jurisdiction or
otherwise contravene any rights of any
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third person and Company has received no notice of such infringement; (iv) or
otherwise fail to comply with any Government Standards; (c) the Company Products
are and will be accurately presented, delivered as promised, merchantable and
fit for the purposes for which they are intended; (d) the Company Products will
be in all respects safe and noninjurious for the persons intended to use them,
and all packaging, promotional materials, and Company's marketing, sales and
distribution methods shall meet or exceed all Government Standards; (e) Company
will not package, market, sell or distribute any Company Products or cause or
permit any Company Products to be packaged, marketed, sold or distributed in
violation of any such Government Standards; provided that the representations
and warranties in subsection (b) above shall not apply to User Content or
Product Content (as defined below). Instead, Company represents and warrants
that it shall monitor and edit such User Content and Product Content and shall
promptly remove any User Content and Product Content from the Company Site which
fails to conform with the warranties and representations in subsection (b)
above. "USER CONTENT" means content uploaded by Users and/or other end users of
the Company Site; "PRODUCT CONTENT" means language incorporated by the
manufacturer thereof (other than Company) in Company Products.
9.4 Indemnities. Each party to this Agreement shall and hereby agrees to
defend, indemnify and hold harmless the other party and each of its officers,
directors, employees and agents (each, an "Indemnitee") against and in respect
of any loss, debt, liability, damage, obligation, claim, demand, judgment or
settlement of any nature or kind, known or unknown, liquidated or unliquidated,
including without limitation all reasonable costs and expenses incurred (legal,
accounting or otherwise) (collectively, "DAMAGES") arising out of, resulting
from or based upon any claim, action or proceeding by any third party alleging
any breach of any representation, warranty or covenant made by such indemnifying
party (the "INDEMNIFYING PARTY") in this Agreement. Company further agrees to
defend, indemnify and hold harmless AT&T and its officers, directors, employees
and agents against and in respect of any Damages arising out of, or resulting
from or based upon any claim, action or proceeding by any third party relating
to the Company Products, User Content, Product Content, Company Site, and other
Content provided to AT&T pursuant to this Agreement and to other materials or
information that Users can link to from the Tracked Pages. Whenever a claim
shall arise for indemnification under this Section 9.4, the relevant
Indemnitees, as appropriate, shall promptly notify the Indemnifying Party and
request the Indemnifying Party to defend the same.
9.5 No Consequential or Punitive Damages. NEITHER PARTY WILL BE LIABLE
TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER
PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES OF ANY KIND -- INCLUDING LOST REVENUES OR PROFITS, LOSS OF
BUSINESS OR LOSS OF DATA -- ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS
AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS
ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
9.6 Acknowledgment of No Warranty. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
NEITHER PARTY WARRANTS THAT THE SERVICE OR THE COMPANY SITE, AS THE CASE MAY BE,
WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR OR DEFECT.
EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AGAINST
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.
9.7 Limitation of Liability. Each party's liability to the other party
for any and all claims and damages incurred by such party relating to or arising
out of the subject matter of this Agreement, whether in contract, tort, implied
warranty, strict liability or other form of action, except for (a) real or
tangible property damage or personal injury or death, and (b) any claims or
damages relating to or arising out of any claim, action or proceeding by a third
party which is
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subject to any right of indemnity provided herein; shall be limited to the
amounts paid by Company to AT&T pursuant to this Agreement. AT&T and Company
each acknowledges that the provisions of this Agreement were negotiated to
reflect an informed, voluntary allocation between them of all risks (both known
and unknown) associated with the transactions associated with this Agreement.
9.8 Insurance. Company has obtained and shall maintain during the term
of the Agreement, appropriate insurance covering the Company Site and all
transactions made through it, and all products and services offered and/or sold
through it, with a reputable insurer . Such insurance shall have limits of not
less than One Million Dollars ($1,000,000) per occurrence and Three Million
Dollars ($3,000,000) in the aggregate and shall have a deductible of not more
than Ten Thousand Dollars ($10,000) per occurrence. Such insurance shall be
primary, and no insurance maintained by AT&T shall be deemed contributory in any
way. Such policy shall be non-cancelable except after (30) days prior written
notice to AT&T. Company shall furnish AT&T with a copy of such policy within
(30) days after execution of this Agreement and to the extent such an insurance
must be renewed, shall furnish AT&T with proof of renewal at least thirty (30)
days prior to the termination date of coverage.
10.0 Miscellaneous Provisions. (a) The provisions of Section 2.5 (for a
reasonable period following termination), Section 4 (to the extent any payments
are accrued prior to termination), Sections 5, 6.5, 7, 8(d), 9 and 10, shall
survive termination or expiration of this Agreement. (b) Company and AT&T are
independent contractors under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture or agency relationship between
Company and AT&T. Neither party has authority to enter into agreements of any
kind on behalf of the other party. (c) Neither Company nor AT&T may assign this
Agreement or any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the other, except that (i) AT&T
may, without Company's consent, assign this Agreement to a present or future
affiliate or successor and may assign its right to receive payments and (ii)
Company may, without AT&T's consent, assign this Agreement to a present or
future affiliate or successor, provided that such affiliate or successor in not
an Online Service Provider. "Online Service Provider" means any entity that, in
AT&T's reasonable judgment, competes with AT&T in the marketing, offering or
provision of online computer services (whether or not such services include or
offer access to the Internet), Internet access services or communication
services (including local exchange, interexchange or international
communications services). Any purported assignment or delegation without such
required consent shall be null and void. (d) This Agreement, its interpretation,
performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, the laws of the state
of New York applicable to contracts entered into and wholly to be performed
within said state. Any controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and by judgment upon the award rendered by the arbitrator(s) may be entered into
any court having jurisdiction thereof. (e) No waiver of any breach of any
provision of this Agreement shall constitute a waiver of any prior, concurrent
or subsequent breach of the same or any other provisions hereof, and no waiver
shall be effective unless made in writing and signed by an authorized
representative of the waiving party. (f) All notices, demands and other
communications hereunder shall be in writing or by written telecommunications,
and shall be deemed to have been duly given: (i) if mailed to the other party's
Addressee by certified mail, postage prepaid, on the date three (3) days from
the date of mailing, (ii) if delivered by overnight courier, when received by
the Addressee or (iii) if sent by confirmed telecommunication, one business day
following receipt by the Addressee. "ADDRESSEE" shall mean (A) each party's
respective "Contact" as set forth under "Key Definitions" above, plus in the
case of AT&T, with a copy to V.P. Law, AT&T WorldNet Service, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of Company, with a
copy to General Counsel, Auto-By-Tel Marketing Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; in each case by the same means of
delivery or (B) such other addressee as one party may notify to the other party.
(g) In the event any provision of this Agreement shall for any reason be held to
be
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invalid, illegal or unenforceable in any respect, the remaining provisions shall
remain in full force and effect. (h) In resolving any dispute or construing any
provision hereunder, there shall be no presumptions made or inferences drawn (i)
because the attorneys for one of the parties drafted the Agreement; (ii) because
of the drafting history of the Agreement; or (iii) because of the inclusion of a
provision not contained in a prior draft, or the deletion of a provision
contained in a prior draft. (i) Section headings are for convenience only and
are not a part of this Agreement. (j) This Agreement contains the entire
understanding of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between AT&T and Company
concerning the subject matter, and cannot be amended except by a writing signed
by both parties. No party hereto has relied on any statement, representation or
promise of any other party or with any other officer, agent, employee or
attorney for the other party in executing this Agreement except as expressly
stated herein.
AUTO-BY-TEL MARKETING CORPORATION AT&T CORPORATION
By: /s/ ▇▇▇▇ ▇. LORIMIR By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -------------------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇▇ ▇. LORIMIR ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -------------------------------------
(Typed or Printed Name) (Typed or Printed Name)
EXECUTIVE VICE PRESIDENT CONTENT DIRECTOR
----------------------------- -------------------------------------
(Title) (Title)
6/25/97 6/25/97
----------------------------- -------------------------------------
(Date) (Date)
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SCHEDULE A
[LOGO]
Please place WorldNet Icon on top left side of all pages.
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SCHEDULE B
PAYMENT TERMS
[Please make a copy of this form each calendar quarter to complete and mail with
your quarterly commission payments]
Submit Payments each quarter to AT&T c/o
[NationsBank
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇]
Date:
-----------------------------
From:
-----------------------------
Auto-By-Tel Marketing Corp.
SUBJECT: Please indicate either: (a) AT&T WorldNet Service Monthly Page
Sponsorship Fee or (b) Quarterly Commission Payment, as the case may be.
Credit to Account No.
Commission Payment for ______ Month [Quarter] , 19__
(enter applicable month or quarter, and year)
If any problems or questions arise with this payment, please contact:
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SCHEDULE C
Editorial Standards
Neither the Company Site nor any product or service offered at the Company Site
shall contain.
1. Any matter which is libelous, defamatory or which discloses private
or personal matters concerning any person, including home phone numbers and
addresses, credit card information, and/or Member account information such as
Member passwords.
2. Any messages, data, images, programs, or other matter which are
obscene or pornographic or which contain racial, ethnic or religious slurs or
similar epithets, or advocating violence, hate or other language that is deeply
and widely offensive.
3. Any messages, data, images, programs, or other matter that would
violate the property rights of others, including unauthorized copyrighted text,
images or programs, trade secrets or other confidential proprietary information
or trademarks or service marks used in an infringing fashion.
Furthermore, the Company Site shall not be used by any person or entity who
conducts, or solicits the performance of, any illegal activity or other activity
which infringes the rights of AT&T, Members, Visitors, merchants, or other
publishers of information on the Service.
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