EXHIBIT 10.15
VOID IF ALTERED
AUTOBYTEL DEALER AGREEMENT
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A SEPARATE DEALER AGREEMENT MUST BE COMPLETED FOR EACH LEGAL ENTITY THE DEALER
WISHES TO INCLUDE ON THE AUTOBYTEL PROGRAM.
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This is a Dealer Agreement ("Agreement") between Autobytel Inc., a Delaware
corporation with its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ABT") and (legal name) __________ ("Dealer"), a [ ]
Corporation, [ ] LLC, [ ] Partnership, [ ] LLP, [ ] Sole Proprietor, [ ] Other
_____ under the laws of the state of _____, and doing business as (DBA)
___________.
IN CONSIDERATION OF THE MUTUAL PROMISES AND OTHER GOOD AND VALUABLE
CONSIDERATION SET FORTH IN THIS AGREEMENT, THE STANDARD PROVISIONS AND THE
ATTACHMENTS INCORPORATED HEREIN BY REFERENCE, THE PARTIES AGREE AS FOLLOWS:
1. OBLIGATIONS.
a. ABT agrees to use its best efforts to provide Dealer with a high quality,
internet-based marketing program and related online services ("ABT
Program") to bring potential consumers in contact with Dealer and to
support a positive ongoing relationship between potential consumers and
Dealer.
b. Dealer agrees to use its best efforts to maximize its use of the ABT
Program in order to provide a positive sales and service environment to
potential consumers who are directed to Dealer by ABT.
c. Both ABT and Dealer agree to use their best efforts to promote a high
degree of consumer satisfaction under the ABT Program.
d. The obligations of ABT and a Dealer who enrolls in the Program are set
forth in more detail in the Standard Provisions, the ABT Pre-Owned
CyberStore (R) Program Rules and other ABT program rules which are located
at ▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/, as updated from time to time in
ABT's sole discretion and the "Market Area Description" which is attached
to this Agreement, all of which are expressly incorporated herein by
reference.
2. TERM. This Agreement shall be effective as of the date signed and activated
by ABT for an obligatory initial commitment term of ninety (90) days and
shall continue in full force and effect until terminated by either or both
parties in accordance with the Standard Provisions.
3. MARKET AREA. Dealer is hereby assigned an exclusive Market Area ("MA")
(except in Texas where exclusive MA's are prohibited) for each new vehicle
franchise that Dealer has enrolled in the ABT Program under this Agreement.
The description of each MA is set forth in the Market Area Description
Attachment. In Texas, the Territory is deemed to be the area within the zip
code where Dealer is located and there is no Market Area Description
Attachment. ABT retains sole and complete authority to define or adjust
Dealer's MA, based on market conditions, Dealer's performance, and such other
factors as ABT, in its sole discretion, deems relevant. ABT will provide
Dealer with not less than thirty (30) days written notice of any change to
Dealer's MA. ABT shall not be liable for any unforeseen/unnoticed changes to
Dealer's MA which may result from factors such as, but not limited to,
changes in U.S. Postal Service zip code alterations, until ABT receives
actual notice of such changes and amends Dealer's MA accordingly. As soon as
such factors become known to ABT, ABT will notify Dealer of any resulting MA
change.
4. FEES.
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SERVICES: MONTHLY FEES: START-UP FEES:
START-UP FEE $
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Monthly Fees: Systems $
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ABT Pre-Owned CyberStore (R) $
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Franchise: $
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Franchise: $
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Franchise: $
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Franchise: $
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Franchise: $
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Franchise: $
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[ ] Additional Franchises: (SEE ADDENDUM) $
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Other: $ $
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Other: $ $
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TOTAL FEES: $ $
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5. REQUISITE AUTHORITY. The undersigned hereby represent that they are
authorized on behalf of their respective entity to enter into this Agreement,
and that each entity is in good standing under the laws of the state of its
incorporation or in which it is otherwise formed or licensed.
This Agreement is executed this ______ day of _____________________, _________.
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DEALER: AUTOBYTEL INC.
By: By:
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Signature Signature
Name: Name:
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Type / Print Full Name Type / Print Full Name
Title: Title:
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Type / Print Title Type / Print Title
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DEALER GROUP # ________ REGION NAME: ________
DEALER DBA:
DEALER GENERAL INFORMATION (under a single "roof")
MAIN TELEPHONE NUMBER: ( ) PRIMARY FAX NUMBER: ( )
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BILLING
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PRE-OWNED
CYBERSTORE(R)
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KEY DEALER PERSONNEL: (Please PRINT clearly in each space)
TITLE NAME & TITLE TELEPHONE & EXTENSION EMAIL
Principal @
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General Manager @
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ABT Program Mgr #1 @
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ABT Program Mgr #2 @
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ABT CyberStore Mgr #1 @
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ABT CyberStore Mgr #2 @
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A / P Contact @
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ABT PRE-OWNED CYBERSTORE(R) PROGRAM INFORMATION (If participating)
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CYBER ID #
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1. Dealer will post vehicles as: [ ] Certified [ ] Non-Certified [ ] BOTH
2. Please select from ONE (1) of the following 3 options:
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[ ] OPTION A: UPLOAD DEALER INVENTORY THROUGH ONE OF THE FOLLOWING COMPANIES:
[ ] AutoBase [ ] AutoMark [ ] Dealer Specialties [ ] ▇▇▇▇▇▇ KARPOWER
[ ] Rolling Maronie
[ ] Other (Provide company name, contact & phone number):
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[ ] OPTION B: UPLOAD DEALER INVENTORY THROUGH ONE OF THE FOLLOWING MAINFRAMES:
[ ] ADP [ ] EDS [ ] ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ [ ] UCS
Mainframe's Modem Phone Number (MUST COMPLETE): (_____)
Mainframe Login (i.e. Hon-A or Store #): ______ Confidential Password
case-sensitive):
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[ ] OPTION C:
[ ] DEALER WILL FORWARD DATA TO ABT AS SPECIFIED IN THE ABT PRE-OWNED
CYBERSTORE(R) PROGRAM RULES.
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AUTHORIZED SIGNATORIES
In addition to the person executing this Agreement, and for purposes of
executing agreements, amendments or other documents necessary to implement
Dealer's participation in the ABT Program, the following named persons with
titles are authorized to sign on behalf of Dealer:
NAME & TITLE NAME & TITLE
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BY MY SIGNATURE ON THE FRONT PAGE OF THIS DOCUMENT, I ATTEST THE ABOVE
INFORMATION IS TRUE AND CORRECT AND I AM AUTHORIZED TO SIGN THIS INFORMATION
SHEET ON BEHALF OF THE DEALERSHIP NAMED ABOVE.
DEALER GROUP # ________ REGION NAME: ________
VOID IF ALTERED
[AUTOBYTEL LOGO]
AUTOBYTEL DEALER AGREEMENT
STANDARD PROVISIONS
I. ABT OBLIGATIONS
A. GENERAL. In order to support the portion of the ABT Program which connects
potential consumers with Dealer for the purpose of purchasing a new or pre-owned
vehicle, ABT agrees to provide the following:
1. WEBSITE. A website designed to market the services offered under the ABT
Program to Dealer and to potential vehicle consumers, provide information to
potential consumers to help them make more informed choices in the purchase of a
vehicle, and to provide information as to services such as financing, insurance
and such other services that may be included in the ABT Program from time to
time.
2. SYSTEMS. ABT will maintain, either directly or through an authorized
provider, the necessary computer hardware, software and electronic communication
systems ("Systems") to enable it to receive and transmit data necessary to
support the ABT Program. Such Systems will support the services offered by ABT
to both Dealer and consumers. Such Systems may be altered, upgraded or enhanced
by ABT from time to time in its sole discretion. ABT hereby grants Dealer a
non-exclusive, non-transferable license to access and use such portions of the
Systems which are proprietary to ABT. As an express condition of this license to
use ABT proprietary Systems, Dealer is prohibited from reselling, loaning or
otherwise sharing such Systems or divulging any related confidential information
including, but not limited to passwords or instructional manuals. ABT will
supply Dealer with the specifications and other requirements and/or restrictions
related to the use of the ABT Program Systems.
3. TECHNICAL SUPPORT. ABT agrees to use reasonable efforts to supply limited
technical support to Dealer during ABT's regular business hours as published
from time to time (Pacific Time) to assist Dealer and Dealer's personnel in
using the services offered under the ABT Program.
4. CONSUMER SUPPORT. As part of its ongoing commitment to consumer
satisfaction, ABT will use reasonable efforts to provide consumers with
assistance and support during ABT's business hours (Pacific Time) by means of a
toll-free telephone number, online communication, facsimile or such other
methods as are reasonably available to ABT. ABT will promptly notify Dealer of
any consumer complaints, comments or questions which relate to Dealer. ABT
reserves the right to revise the ABT Program consumer support standards to
comply with applicable laws or to address changes in the business climate. ABT
will promptly notify Dealer of any such revisions.
5. TRANSMISSION OF DATA.ABT will use its reasonable efforts to provide prompt
transmission of data to Dealer and consumers. ABT shall not be liable for any
loss of data, delays or errors in transmitting data or any loss of business due
to electrical power source failure, telephone transmission failure, unforeseen
criminal acts of others, Natural Disasters, acts of God, or any other conditions
beyond ABT's control.
B. CONSUMER REQUESTS. ABT agrees to use reasonable efforts to provide the
following consumer requests and/or other communications services to Dealer using
the ABT Systems:
1. Real time transmission of new and pre-owned vehicle purchase requests from
consumers accessing the ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ website (the "ABT Website").
2. Real time transmission of service appointment requests or service-related
questions from consumers accessing the ABT Website.
3. Any other purchase request or consumer inquiry to Dealer that is sent to
ABT via the ABT Website.
4. As used in this Agreement, the terms purchase requests or consumer requests
or inquiries refer to consumer requests or inquiries generated through the ABT
Website. Purchase requests for new vehicle purchases or leases shall be those
generated from within Dealer's MA. (In Texas, purchase requests from within
Dealer's MA will be sent to Dealer but all participating Dealers in Texas will
be listed on the referral confirmation sent to the consumer.)
5. In the event of Dealer's breach of this Agreement and until such breach is
cured, ABT may re-route purchase requests, service requests or other inquiries,
to the nearest qualified enrolled dealer without prior notice to Dealer.
C. DATABASE SUPPORT FOR PRE-OWNED VEHICLE SALES. If Dealer elects to enroll in
ABT's Pre-Owned CyberStore (R) Program, ABT will establish a database,
permitting Dealer to electronically publish photographic images of retail
quality pre-owned vehicles. Consumers will be able to search the database for
vehicles by make and/or model and other criteria. Inquiries from interested
consumers will be routed to dealers having the appropriate vehicle in the
database. The terms and conditions specific to the ABT Pre-Owned Cyber Store
Program are located at ▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/, and which may be
amended by ABT in its sole discretion upon thirty (30) days notice to Dealer.
D. CHANGES IN PROGRAMS AND SERVICES. ABT reserves the right to add or delete
programs or services as part of its continued enhancement of the ABT program.
ABT will give Dealer thirty (30) days notice of any such changes and any fee
increases or decreases related thereto.
E. TITLE TO SYSTEM, TRADEMARKS. To the extent permitted by law, the goodwill
associated with any and all intellectual property and services to be provided
under this Agreement are proprietary to ABT, and title thereto remains in ABT.
All applicable rights to patents, copyrights, trademarks, and trade secrets in
the Systems now and in the future, belong exclusively to ABT. Any and all
trademarks and service marks associated with ABT are and shall forever remain
the exclusive property of ABT. Upon the written consent of ABT, Dealer is
permitted to use the ABT trademarks and service marks for inclusion on business
cards, and media advertisements that communicate Dealer's association with ABT.
This authority to use ABT's patented systems, name, logo, and other trademarks
or service marks is revocable at any time by ABT. ABT reserves the right, in its
sole discretion, to revoke Dealer's permission as to future use.
F. WARRANTY LIMITATION. ABT DOES NOT GUARANTEE OR WARRANT THE PERFORMANCE OF
THE SERVICES PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, THE NUMBER OF
PURCHASE REQUESTS OR VEHICLE SALES/LEASES DEALER MAY RECEIVE AND/OR CONSUMMATE
UNDER THE ABT PROGRAM, IF ANY. DEALER SPECIFICALLY WAIVES ALL WARRANTIES,
EXPRESSED OR IMPLIED, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE
PROVIDED BY ABT HEREUNDER. SPECIFICALLY EXCLUDED ARE ALL WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL ABT BE LIABLE FOR ANY LOSS OF BUSINESS
PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES OR FOR
ANY THIRD-PARTY CLAIMS OR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
II. DEALER OBLIGATIONS.
A. GENERAL. In order to support the portion of the ABT Program which connects
potential consumers with Dealer for the purpose of purchasing a new or pre-owned
vehicle or responding to consumer requests for service or other consumer
inquiries, Dealer agrees to the following:
1. MANAGEMENT INVOLVEMENT. Dealer's Principal and General Manager will
actively participate in the application, implementation, and operation of the
ABT Program within the dealership.
2. DEDICATED PERSONNEL. Dealer will, for each franchise enrolled in the ABT
Program, dedicate at least one (1) key employee to be responsible for the new
vehicle program and, where possible, at least one (1) additional key employee to
be responsible for the Certified Pre-Owned CyberStore program, if Dealer enrolls
in that program. Each such dedicated person will be empowered to act as a
liaison between ABT and Dealer. Each person shall be referred to as "ABT
Manager". Dealer promises to notify ABT in writing within ten (10) days with the
identity of any newly designated ABT Manager.
3. SYSTEMS. Dealer agrees to provide dedicated access to an IBM compatible
personal computer with Internet access and related equipment that meets or
exceeds the minimum specifications published from time to time by ABT. Upon
request, Dealer shall provide ABT with written assurances regarding Dealer's
compliance with this provision.
4. DESIGNATED WORK AREA. Dealer shall set aside and designate a work area
within the dealership wherein each ABT Manager may perform his/her duties under
this Agreement. In addition to the personal computer outlined above, Dealer
shall provide a dedicated workstation that, at a minimum, contains a desk, a
compatible printer, telephone, and other office supplies and equipment as may be
necessary to receive and properly implement at the dealership, the services
contemplated by this Agreement.
5. SERVICES FREE TO CONSUMER. ABT services are free of charge to a consumer.
Dealer and its employee/agents are expressly prohibited from representing to any
consumer, in any manner, either, orally or in writing, the existence of any
charge or fee to be paid by reason of consumer's use of ABT's services.
6. PARTICIPATION IN FUTURE PROGRAMS. Dealer promises to reasonably participate
in ABT's program offerings, including any programs or services developed in the
future so long as Dealer is enrolled in the ABT Program, unless ABT expressly
states that such programs are optional.
B. TRAINING. Dealer will ensure that an ABT Manager will attend at least one
(1) ABT phone training session prior to activating services and one (1)
Autobytel University basic training course or other similar program affiliated
with ABT as soon as offered by ABT in Dealer's area (or online, if available)
after the date of this Agreement. Dealer understands that ABT will not forward
purchase requests under this Agreement until such time as the initial ABT phone
training session for an ABT Manager has been completed. Dealer must at all times
have at least one (1) trained ABT Manager in order to continue receiving
purchase requests.
C. CONSUMER SERVICE STANDARDS.
1. Dealer shall contact one hundred percent (100%) of the consumers submitting
purchase or service requests routed to Dealer by the most expeditious means
possible within one (1) business day of Dealer's receipt of such request,
confirming receipt of such request, and
2. Dealer shall at the same time, but in no event more than two (2) business
days following receipt of such request, disclose all of the following:
a) the ABT Manager's name and contact phone number;
b) the availability of the vehicle including any requested options;
c) the confirmed price that Dealer will sell or lease the vehicle to the
consumer, including the Website advertised price, if any, all additional
options requested, pre-delivery inspection fees, destination fees and/or
advertising costs or charges not otherwise included in the vehicle price;
d) all relevant financing terms and conditions which may apply to the
purchase or lease transaction requested; and
e) all other terms, costs and conditions required by law to be disclosed to
prospective purchasers.
3. Dealer promises that all such information, including the price, that Dealer
provides to a consumer shall be truthful and be binding on Dealer for a period
of seven (7) days after its transmittal, provided the identified vehicle still
remains available for sale. If Dealer relied on a manufacturer sponsored program
when quoting the pricing, terms, incentives or availability of vehicles, the
time period in which the Dealer information must be truthful shall coincide with
the termination date of the manufacturer's program or seven (7) days, whichever
is less. In the case of a service related request, Dealer shall respond
truthfully with all information reasonably requested by the consumer.
D. PRE-OWNED VEHICLE SALES. Dealer's election to sell pre-owned vehicles
through the ABT Program and Dealer's participation shall be governed by the
Pre-Owned CyberStore rules.
E. PERFORMANCE STANDARDS. Dealer agrees to maintain a satisfactory performance
rating as measured by ABT standards and/or formulas published by ABT from time
to time to dealers.
III. FEES AND COSTS.
A. Dealer agrees to pay ABT the sums listed on the Fees and Costs attachment to
this Agreement.
B. Except where otherwise informed by ABT's technical support staff at the time
services are requested, technical support service is included in Dealer's
monthly fees. As some services require substantial time and effort to complete,
ABT reserves the right to institute supplemental charges for some services.
C. All fees are due and payable net fifteen (15) days from the date of invoice.
ABT reserves the right to suspend all services under this Agreement if any
payment is past due over 60 days until such account is brought current.
D. ABT, in its sole discretion, may change the amount, structure, method and/or
basis of the fee at any time during the term of this Agreement. Any changes
shall be effective upon thirty (30) days written notice to dealer and shall not
require an affirmative response or any further action by the parties.
E. Each party is solely responsible for paying all taxes (local, state and
federal) imposed as a result of its activities under this Agreement.
F. Each party hereto is responsible for all of its internal costs, if any,
associated with implementation and operation of the ABT Program.
IV. TERMINATION.
A. Either party may terminate this Agreement:
1. immediately for any breach of this Agreement by the other party which is
not cured within ten (10) days after receipt of written notice of the breach
from the non-breaching party; or
2. for any reason or no reason, upon thirty (30) days written notice to the
other party hereto after completion of the obligatory initial ninety (90) day
commitment period.
B. ABT may terminate this Agreement:
1. immediately upon finding of Dealer's violation of state or federal law or
conviction for such violation;
2. immediately upon Dealer's sale or transfer of all or substantially all of
its dealership assets and change of control or management;
3. immediately upon loss of franchise, revocation, termination, suspension, or
other invalidation of Dealer's license; or
4. immediately if an order of liquidation or petition for bankruptcy is
entered or filed against Dealer and not stayed.
5. immediately upon failure to pay any past due amounts after having received
written notice of such past due amounts.
C. Under any of the circumstances above, except breach of this Agreement by
ABT, Dealer shall remain responsible for all fees due and payable up through the
effective date of the termination or as otherwise dictated by the terms of this
Agreement or applicable law.
V. INDEMNIFICATION. Each party to this Agreement will defend, indemnify and hold
harmless the other party and each of its parent company, affiliate companies,
officers, directors, employees an agents against and in respect of any and all
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 such
party's negligence or wrongful conduct or based upon any claim, action or
proceeding by any third party alleging facts or circumstances constituting a
breach of the representations and warranties made by such indemnifying party.
Neither party shall, however, under any circumstances be liable for any
consequential, incidental, indirect, special, punitive or other such damages. In
all events, each party shall, in its sole discretion, have the right to
participate in the defense of any such action through counsel of its own
choosing at its sole and separate expense.
VI. GENERAL PROVISIONS.
A. NOTICES. Any notices required to be given in connection with this Agreement
by either party shall be in writing signed by duly authorized agent and shall be
deemed given by any of the following means: 1) in person; 2) by certified mail,
return receipt requested and deemed effective three days after the date of
mailing; 3) by facsimile which shall be deemed received on the day sent when a
confirming notice from the sending facsimile machine has been generated; or 4)
by overnight delivery service or courier, which shall be deemed received on the
day of physical delivery as evidenced by courier receipt. All notices shall be
directed to the most current address or facsimile number for each party as
listed in this Agreement or as revised in accordance with the notice procedures
set forth herein.
B. NO IMPLIED WAIVERS. The failure of either party at any time to require
performance by the other party of any provision of this Agreement or to exercise
any right provided for herein, shall in no way affect the right of such party to
require such performance or exercise such right at any time thereafter. No
waiver by either party of a breach of any provision herein shall constitute a
waiver of any subsequent breach, nor a waiver of the provision itself.
C. INDEPENDENT CONTRACTOR RELATIONSHIP. The relationship created by this
Agreement between ABT and Dealer is intended to be and shall for all purposes
hereunder be considered that of an independent contractor. Nothing contained in
this Agreement shall be construed as intending, creating or constituting a
franchise, partnership, agency, or joint venture relationship between ABT and
Dealer.
D. CONTROLLING AGREEMENT. This Agreement and all attachments or amendments
hereto supersede any and all agreements, oral or written, between the parties,
and contains all of the representations, covenants, and understandings between
the parties with respect to services described in this Agreement. Each party to
this Agreement acknowledges that no representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not contained in this Agreement, any attachments
and/or amendments hereto. No other agreement(s), statement(s), or promise(s)
shall be valid or binding.
E. MODIFICATIONS AND AMENDMENTS. Except where otherwise set forth in this
Agreement, all modifications or amendments to this Agreement shall be in writing
and signed by both Parties hereto.
F. ASSIGNMENT. This Agreement and the rights and duties hereunder, shall not be
assignable by Dealer, except upon written consent of ABT. This Agreement and the
rights and duties hereunder shall be assignable by ABT without restriction.
G. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, such determination shall in no way alter or
impair the validity, legality, and enforceability of the remaining provisions of
this Agreement which shall continue in full force and effect.
H. CONFIDENTIALITY. Each of the parties hereto, on behalf of itself and its
employees, agrees to keep all non-public information gained as a result of the
business dealings contemplated in this Agreement confidential. Each party may,
however, use such confidential information for its internal use only to further
its performance under this Agreement. Dealer understands and agrees that the
sale or unauthorized use or disclosure of any trade secrets or other
confidential information, including but not limited to, private information
provided by purchase request or other communication constitutes theft and will
greatly damage ABT and is prohibited. Dealer shall not impart ABT's proprietary
information to any person or entity other than Dealer's key employee(s) without
the previous written consent of ABT. ABT reserves the right to transmit
pertinent vehicle information to consumers making inquiries concerning the terms
of purchase and financing or leasing of motor vehicles. Notwithstanding the
foregoing, if either party is required to produce any such information by order
of any government agency, court of competent jurisdiction, or other regulatory
body, it may, upon not less than five (5) days written notice to the other
party, release the required information. Unless ABT agrees in writing, Dealer is
prohibited from issuing any press release(s) or making any public
announcement(s) regarding its business relationship with ABT or ABT's services
or programs provided to Dealer.
I. ATTORNEY FEES AND COSTS. In the event any action shall be instituted to
resolve a dispute between the parties regarding this Agreement or to enforce the
terms of this Agreement, the prevailing party in such action shall be entitled
to recover reasonable attorneys fees and costs incurred. As used in this
section, the word "action" includes, but is not limited to, any act requiring
legal counsel involvement up to and including a formal litigation filed in a
court of competent jurisdiction.
GOOD FAITH, GOVERNING LAW AND JURISDICTION. Each party will at all times
contemplated herein, act in good faith and in accordance with all applicable
local, state and federal laws. This Agreement shall in all respects be governed
by the laws of the State of California for contracts to be performed wholly
within California and without reference to conflicts of laws principles. Any
dispute that arises under or relates to this Agreement (whether contract, tort
or both) commenced by either party shall be resolved in state or federal court
in Orange County, California, and the parties expressly waive any right they may
otherwise have to cause any such action or preceding to be brought or tried
elsewhere.
VOID IF ALTERED
[AUTOBYTEL LOGO]
ABT PRE-OWNED CYBERSTORE(R) PROGRAM
ABT OBLIGATIONS:
ABT will provide a marketing program targeted at consumers interested in
purchasing pre-owned vehicles. ABT will establish a database permitting Dealer
to electronically publish details of retail quality pre-owned vehicles.
Consumers will be able to search the database for vehicles by make and model and
other criteria. Inquiries from interested consumers ("Purchase Requests") will
be routed to dealers having the appropriate vehicle in the database.
DEALER OBLIGATIONS:
1.VEHICLE PRICING: Dealer may provide posted prices and vehicle information for
display on the ABT Pre-Owned CyberStore website. Dealer shall have sole
discretion in setting vehicle prices. However, Dealer agrees to price vehicles
competitively for the market area in which Dealer is located and to honor those
prices as required by law. Dealer assumes all responsibility for educating
Dealer staff and sales personnel as to the amount and duration of the advertised
prices. Dealer, and not ABT, shall be solely responsible for the quality and
accuracy of such information.
2. GENERAL PRE-OWNED CYBERSTORE SERVICE TERMS & CONDITIONS: The Pre-Owned
CyberStore is a web-based service featuring a collection of dealer offered,
retail quality, pre-owned vehicles. Dealer may post an unlimited number of
vehicles on the Pre-Owned CyberStore web site. The Dealer must own each vehicle.
Consignment vehicles are prohibited. All information posted for a vehicle must
be accurate and based on facts known to the Dealer. Vehicles may be posted with
or without digital images. Vehicles that do not meet the Pre-Owned CyberStore
certification standards set forth below must be posted on the website as a
non-certified vehicle. All vehicles regardless of certification status must meet
state emissions and safety standards and have clear title prior to being offered
for sale. It is Dealer's responsibility to disclose any mechanical or cosmetic
damage or defect in the vehicle known to Dealer or any employee of Dealer at the
time of posting until sold. It is Dealer's responsibility to disclose the
existence of a warranty or lack of a warranty as required by state and federal
laws. Dealer is responsible for withdrawing the advertisement as required by
state and federal law but in no event more than 48 hours following sale of the
vehicle.
3. NON-CERTIFIED PRE-OWNED CYBERSTORE VEHICLE STANDARDS: A "non-certified"
vehicle shall mean a Dealer offered, retail quality, pre-owned vehicle that is
offered without express warranty, return, refund or exchange options. Dealer,
NOT ABT, is responsible for each vehicle as to meeting all applicable state and
federal emissions and safety standards prior to its sale. Dealer may post any
retail quality vehicle owned by the Dealer, regardless of model year or mileage.
No consignment vehicle shall be posted. Prior rental history, dealer demo
history, frame damage, salvaged vehicles history, stolen-recovered history,
flood damage, and any material cosmetic or safety and non-safety related
mechanical damage, defect or irregularity shall be clearly disclosed within the
posted description of the vehicle. Dealer, in its sole discretion, may offer a
limited warranty for any such vehicle or, in the alternative, offer a vehicle,
without warranty, AS-IS. It is Dealer's sole responsibility to provide the
consumer with all state and federal law required disclosures applicable to the
type of warranty, if any, Dealer provides on a particular vehicle.
4.(a). CERTIFIED PRE-OWNED CYBERSTORE VEHICLE STANDARDS: A "certified" vehicle
shall mean a Dealer offered, retail quality, pre-owned vehicle that is offered
with an express warranty, written return, refund or exchange option. Dealer, NOT
ABT, shall certify each vehicle as meeting all applicable local, state and
federal emissions and safety standards. To qualify for a listing as a certified
vehicle under this program, however, Dealer represents to ABT and to the general
public that the vehicle offered has been mechanically inspected in accordance
with customary and commercially reasonable standards for the market in which
Dealer is located, and carries a manufacturer pre-owned vehicle certification or
exhibits all of the following key qualifications:
A) Under 75,000 miles
B) Has undergone a complete diagnostic inspection and
repairs as necessary
C) Less than 7 years old (current model year plus 6)
D) No salvage titles
E) No evidence of frame damage
F) No evidence of flood or water damage
G) No inoperative odometers
H) No odometer roll backs
I) No Lemon Law re-sales
J) No failed-emission tests as defined by applicable
state and/or federal laws
K) No safety problems as defined by applicable state
and/or federal laws.
(b). LIMITED WARRANTY: Dealer will establish and offer a limited warranty
("warranty") on all certified vehicles offered through the Pre-Owned CyberStore.
Offering vehicles as certified through the Pre-Owned CyberStore on an "as-is" or
"implied warranty only" basis is specifically prohibited. The warranty coverage
shall be in addition to any implied warranties prescribed by the laws of the
state in which Dealer is located. In all cases, Dealer's limited warranty
offering shall not be less favorable to the consumer than the law of the
jurisdiction
where Dealer is located, and as a minimum will be for a duration of not less
than three (3) months or 3,000 miles, whichever occurs first. The minimum
warranty terms shall, at a minimum, cover internally lubricated engine,
transmission and differential parts, emissions and safety components required by
law as well as any additional vehicle systems Dealer specifically promises to
cover in its warranty documentation. Dealer will provide each consumer at the
time of purchase a written document that explains in detail, the terms and
conditions of Dealer's warranty on the vehicle being purchased or leased. Dealer
will indemnify ABT for any third-party claims arising under any warranty.
Nothing in this section shall be interpreted as preventing Dealer from
purchasing independent warranty coverage from a legitimate third party provider
as long as the terms and conditions shall meet or exceed the minimum
requirements set forth herein and on the ABT Pre-Owned CyberStore Website.
(c). VEHICLE RETURN POLICY: Except where expressly prohibited by law, Dealer
shall offer, in writing, a return policy on all certified vehicles. This policy
shall allow a consumer to return a vehicle to Dealer within 72 hours or 300
miles, whichever occurs first, for either a refund of purchase monies or for a
reasonably comparable vehicle exchange, at Dealer's discretion. The consumer
shall be responsible for any additional sales/use tax or licensing fees incurred
as a result of an exchange. In the event the original vehicle is returned
damaged, Dealer may refuse the return or, in the alternative, collect from
consumer that amount that Dealer can prove was actually expended to repair the
vehicle, where permitted by state law. Any tax or licensing charges as a result
of withholding these funds shall be the sole responsibility of Dealer and not
ABT. Dealer will provide each consumer the name and phone number of the Dealer
employee to contact to exercise the exchange option. Dealer will facilitate the
consumer's exercise of the option to return the vehicle in good faith, and will
use reasonable efforts to maximize the consumer's satisfaction with the exchange
experience.
5. OUT OF AREA REPAIRS: Dealer will participate in the emergency repair system
established by ABT as a Repairing Dealer (as defined below). Nothing in this
section shall be construed to prohibit Dealer or consumer from abiding by the
terms and conditions set forth in a third party provider warranty so long as
terms and conditions of the warranty coverage do not fall below the minimum
standards set forth under this Agreement. Absent any third-party coverage to the
contrary, during the warranty period, the emergency repair system allows a
consumer of a certified vehicle who is more than 100 miles from Dealer's repair
facilities and encounters a situation where the vehicle is not operational (i.e.
cannot be driven), to contact the nearest certified Pre-Owned CyberStore Dealer
(the "Repairing Dealer") and have the Repairing Dealer perform any warranted
service or repair. The Repairing Dealer or the consumer must contact the Dealer
prior to any repairs being performed and obtain authorization to repair the
vehicle from the Dealer. For covered items other than those that disabled the
vehicle, the owner should return to the Dealer. In the interest of consumer
satisfaction and improved inter-Dealer relations, when acceptable, independent
third-party warranty coverage is not available to the consumer, the resulting
repair charges should be calculated on a negotiated basis between the involved
dealers but, in no event, shall such costs to the Dealer exceed an internal
basis of "cost plus 25%" for parts and labor in all states, except for those
states with higher mandates, in which states the applicable law will govern. In
the event of a "major" repair (i.e. engine or transmission), the Dealer will
have the option of providing alternate transportation to the consumer,
retrieving the affected vehicle, and repairing the vehicle at the Dealer's
service location.
6 (a). DIGITAL IMAGES: Dealer may publish an unlimited number of pre-owned
vehicle images on the Pre-Owned CyberStore. DIGITAL IMAGES ARE NOT REQUIRED FOR
VEHICLES SUBMITTED TO THE PRE-OWNED CYBERSTORE BUT ARE HIGHLY RECOMMENDED FOR
ALL LISTINGS. Dealer shall provide a digital camera of the make and type
compatible with ABT's computerized image-uploading characteristics. Dealer shall
produce such images in accordance with the specifications and guidelines set
forth herein. Placement of images of new vehicles on the Pre-Owned CyberStore is
strictly prohibited.
(b). DIGITAL: IMAGE SPECIFICATIONS AND GUIDELINES: All vehicle images provided
by Dealer shall: (i) contain the vehicle as the sole subject matter of the
image, and shall not contain any people, images of people, graphics, photos,
artwork, overlays, signs, numbers, banners, balloons or any form of visual
advertisement, or any other image that would have the effect of distracting from
the vehicle; (ii) be side or angular photographs; and (iii) be true and correct
images of the vehicle, without retouching, modification, manipulation, or
enhancement. ABT reserves the right to eliminate, without prior notice to
Dealer, any vehicle image from the Pre-Owned CyberStore that does not meet the
above criteria.