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EXHIBIT 10.31
[LOGO]
GOLD TERM SUBSCRIPTION AGREEMENT
WELCOME to xxxxxxxxx.xxx inc.'s family of accredited motor vehicle dealers. This
Agreement is entered into by and between xxxxxxxxx.xxx inc., a Delaware
Corporation, with its principal place of business at 00000 XxxXxxxxx Xxxx.,
Xxxxxx, Xxxxxxxxxx 00000 ("ABT"or "Us" or "We" or "Our") and [LEGAL NAME],
a(n) [INC ST] [ENTITY] dba [DBA] with its principal place of business at
[ADDRESS], [CITY], [ST] [ZIP]("Dealer" or "You" or "Your"). (ABT and
Dealer, each a "Party" hereunder are sometimes collectively referred to herein
as the "Parties.")
In consideration of the following mutual promises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ABT and Dealer, on their own behalf and on behalf of each of their
"d.b.a." operation(s) set forth in Appendix "A" attached hereto, intending to be
legally bound hereby, warrant, covenant and agree as follows:
I. OUR COMMITMENT TO YOU:
1. ABT promises to provide an Internet-based marketing program and Online
services to attract potential purchasers to HTTP//XXX.XXXXXXXXX.XXX, (THE
"WEBSITE");
2. ABT promises to advertise in national markets the general services offered
to consumers through ABT;
3. ABT promises to use best efforts to promptly forward to You information
regarding an identified potential purchaser whose purchase/lease request
emanated from within Your assigned Primary Market Area (PMA);
4. ABT promises to provide You with technical support during regular business
hours (Pacific Standard Time) to assist You and/or Your representative(s)
in the use of Our products and services. Except where otherwise informed by
the technical support staff at the time services are requested, this
service is free of charge. As some services require substantial time and
effort to complete, ABT reserves the right to institute supplemental
charges for some services without prior notification;
5. We promise to provide consumers with assistance and support through Our
Customer WOW! Program, during normal business hours (Pacific Standard
Time);
6. We agree, subject to individual state law restrictions, to continue to
develop, maintain, and enforce uniform Customer Service Standards that will
be implemented by Our subscribing dealers. To meet such a commitment, ABT
reserves the right to amend the Customer Service Standards from time to
time to modify, eliminate or impose additional Customer Service Standards
as the law or the changing business climate may dictate;
7. We promise to promptly notify Dealer in writing of any revisions to the
Customer Service Standards outlined herein. We will not impose amendments
or additions to Our Customer Service Standards unless they are applied to
all subscribing dealers within Your state;
8. We promise to use best efforts to effectively communicate mutually
beneficial information relating to the ABT products and services provided
during the term of this subscription;
9. ABT shall use its best efforts to provide prompt transmission of data to
Dealer, but shall not be liable for any unintentional loss of data, delays
or errors in transmitting data, nor shall We be liable for any damages
arising from any data loss, delay, or error;
10. We are responsible to maintain Our own equipment at Our sole expense and
will assume all responsibility for loss, damage, and maintenance to Our own
equipment;
11. We hereby grant to You a nonexclusive, non-transferable license that will
allow up to two simultaneous users to access Our proprietary Dealer Real
Time (DRT) information communications system to receive Purchase Requests;
12. NEW VEHICLE EXCLUSIVE PRIMARY MARKET ASSIGNMENT ("PMA"): You have been
assigned an exclusive market area for the subscribed new vehicle franchises
of [FRANCHISES]. This exclusive area effects new vehicle Purchase Requests
only. The U.S. Postal Code description of this PMA assignment is set for in
Exhibit "A" attached to this Agreement and incorporated herein by this
reference. ABT has sole and complete authority to define Your PMA. Your
exclusive PMA will remain in effect for six (6) months without the
possibility of adjustment. ABT reserves the right to conduct a market
representation study to determine the effectiveness of Your PMA at least
once during the term of this Agreement. ABT in their sole discretion may
use the results of these studies to among other things, evaluate the market
value of Your PMA and Your effectiveness in servicing purchase requests
from Your PMA. ABT reserves the right to adjust Your PMA as necessary
following such studies by providing You with not less than thirty-(30) days
written notice of the pending change;
13. TERM: This Agreement shall be for a term of twelve (12) months, unless
terminated earlier pursuant to Section 14. Upon the mutual consent of
Dealer and ABT, this Agreement may be extended at ninety-(90) day
intervals, up to a maximum of one (1) year. Such consent shall be evidenced
in writing, signed by each Party hereto. If Dealer shall meet the
qualifications for the Platinum level Agreement at any time during the term
of this agreement or any extension thereof, Dealer may be converted at the
end of the twelve-month term to an extended Platinum Term Subscription for
an additional five (5) years. In the event Dealer shall fail to qualify for
a Platinum Term Subscription agreement at the end of the last available
extension, this agreement shall terminate;
14. ABT MAY TERMINATE THIS AGREEMENT:
(a) immediately for any breach of this Agreement by You which is not cured
within ten (10) days after You receive written notice of the breach
from Us;
(b) immediately if any fees due ABT under this Agreement are unpaid and
outstanding more than thirty (30) days after ABT makes a written
request for payment;
(c) immediately, if Dealer is guilty of willful misconduct in the
performance of its duties under this Agreement;
(d) immediately upon a finding of dealer's violation of state or Federal
law or conviction for such violation, whether administratively,
civilly, or criminally;
(e) Immediately upon discovery of Dealers' sale or transfer of all or
substantially all of its dealership assets and /or management and
control.
(f) immediately if an order for liquidation against You is entered and not
stayed in a bankruptcy proceeding;
(g) upon sixty (60) days' written notice to You regarding poor overall
performance, including but not limited to such areas as unsatisfactory
Purchase Requester contact rates, poor overall customer satisfaction,
poor Overall Satisfaction Index (OSI) rating.
15. TAXES: We shall be responsible for paying all taxes imposed upon Us by
reason of the compensation paid to Us for providing services to You under
this Agreement.
16. INDEMNIFICATION:
We promise to indemnify and hold You and Your subsidiaries and/or
affiliates and Your respective members, managers, directors, officers,
employees, harmless against any and all losses, liabilities, claims,
awards, damages, judgments, settlements, and costs, including fees and
expenses, arising out of Our negligence or wrongful conduct, or arising out
of or related to any third Party claim arising out of or related to Our
negligence or wrongful conduct, or from any other act done or omitted to be
done by Us in executing the terms of this Agreement.
II. YOUR COMMITMENT TO US:
1. At all times during the term of this Agreement, You and/or Your designated
representatives will abide by the terms of this Agreement and will perform
the duties as set forth herein, in accordance with the terms of this
Agreement.
2. Your Dealer Principal and General Manager will actively participate in the
application, implementation, and operation of the ABT service system within
the dealership(s).
3. You understand and agree that You are responsible for all internal costs,
if any, associated with implementation of Our systems and services within
Your facilities.
4. You will dedicate at least one (1) key employee to be responsible for the
new vehicle program and at least one (1) key employee to be responsible for
the Certified Pre-Owned CyberStore(R) program, if so elected. This
person(s) will be empowered to act as a liaison between ABT and Dealer.
This person(s) shall be referred to as the "ABT Manager." You promise to
notify Us in writing within ten (10) days with the identity of any newly
designated ABT Manager.
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5. You will make Your ABT Manager(s) available to Us for training upon
reasonable request and notice, Your Dealer Principal and General Manager
agree to participate in at least one (1) ABT-U Basic Training program
offered by ABT either at the dealer's facility or at an offsite facility
offered by ABT, within One Hundred Twenty (120) days from the date of this
Agreement. ABT shall reserve for You, free of tuition costs, two (2) seats
for ABT Manager Training and one seat per Dealer Principal and GM per
franchise per year at an ABT-U Basic Training course. Additional seats may
be purchased at a cost of [ ] per seat. Dealer will ensure that each ABT
Manager will attend at least one ABT Phone Training Session prior to
activating our services and (1) ABT-U Basic training course within ninety
(90) days from the date of this agreement. Dealer understands that ABT will
not forward Purchase Requests under this Agreement until such time as The
ABT Manager Phone Training has been completed. ABT may suspend Purchase
Requests in the event all ABT-U Basic Training has not been completed by
the qualified ABT Manager(s), Dealer, and GM within the time frames stated
herein. Until such time as Dealer's compliance with this term has been
confirmed by ABT, ABT is hereby granted express authority and permission to
re-route any Purchase Requests received from Dealer's PMA to the nearest
qualified ABT subscribing dealer for the subject vehicle make, without
prior notice to Dealer.
6. You will set aside and designate an exclusive work area within Your
dealership wherein the ABT Manager(s) may perform his/her/their duties
under this Agreement.
7. When working with each Purchase Requester provided to You through Our
service system, You will, at all times, act in good faith and in accordance
with state and federal laws.
8. You promise to reasonably participate in ABT's program offerings, including
any programs or services developed in the future.
9. Dealer shall contact one hundred percent (100%) of the Potential Purchasers
within one (1) business day of Dealer's receipt of the inquiry from ABT.
ABT retains the right to re-route to another accredited ABT dealer, at any
time, any Purchase Requester(s) not contacted by You, without prior notice;
and
10. Dealer's initial response shall be by telephone or e-mail and shall confirm
receipt of the Purchase Request. Dealer shall at the same time, but in no
event more than two (2) business days following receipt of the Purchase
Request, disclose all of the following information (the "Dealer
Information"):
(a) the availability of the vehicle inquired about;
(b) the manufacturer's suggested retail price (MSRP) of the vehicle;
(c) availability of all requested options;
(d) the complete price that You will sell or lease the vehicle to the
Potential Purchaser, including all options requested, preparation
fees, destination fees and/or advertising costs or charges not
otherwise included in the vehicle price;
(e) all relevant financing terms and conditions which may apply to the
purchase or lease transaction requested;
(f) all other terms, costs and conditions required by law to be disclosed
to prospective purchasers; and
(g) ABT retains the right to re-route any Purchase Request(s) to another
accredited ABT Dealer in the event the information called for in this
section II(12) are not completely disclosed to a Purchase
Requester(s).
11. You agree to maintain an Overall Satisfaction Index (OSI) score as measured
by ABT at a level that is equal to or above the regional average for
comparable make dealers in Your PMA area. OSI is a quarterly scoring method
which measures and ranks performance by comparing Dealer's average Purchase
Request contact ratio, actual sales completed from Purchase Requests
provided, the number of finance transactions completed through ABT, and
customer service ratings as provided by customer surveys, with those of
other similarly situated Dealers within a region. A satisfactory OSI is
material to Your ability to receive a Platinum Term Continuation Agreement.
In the event Dealer's performance does not meet the requirements for a
Platinum Term Continuation Agreement, ABT in their sole their discretion
may extend the terms of this Gold Term Subscription Agreement as specified
in Section Section I (13) herein.
12. You promise that all Dealer Information, including the price, that You
transmitted to a Potential Purchaser shall be valid 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 You relied on a
manufacturer sponsored program when quoting Your pricing, terms, incentives
or availability of vehicles, the time period in which the Dealer
Information must be valid shall coincide with the termination date of the
Manufacturer's program or seven (7) days, whichever is less. If the offer
time is less than seven (7) days for the above reason, You promise to
include a statement in the Dealer Information informing the Prospective
Purchaser of any reduction in the time period as set forth above. You agree
that any claim for damages or loss arising out of Your failure to inform
Potential Purchasers of all Dealer Information required by this section
shall be borne solely by You and not ABT.
13. You promise to adopt and abide by revisions to any Customer Service
Standard no later than thirty (30) days following notification of a change,
even though they may require additional work or expense to implement.
14. You promise to use best efforts to effectively communicate mutually
beneficial information relating to the ABT products and services provided
during the term of this subscription.
15. You agree to update, on a weekly basis, Your sales data in the Dealer Real
Time(R) System indicating the number and names of Potential Purchasers who
purchased or leased vehicles from You through Our system. You agree to
include in Your data, the number of those vehicles financed and amount
financed and such other related data as may from time to time be requested.
16. You agree to provide at Your own expense, 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. You are solely responsible for ensuring that your computer
system is in compliance with all-relevant "Year 2000" specifications. Upon
request, you agree to provide Us with written assurances regarding your
compliance with this provision.
17. In addition to the personal computer outlined above, You agree to provide
at Your own expense, a dedicated workstation that is at a minimum,
comprised of a desk, a compatible printer, telephone, and other office
supplies and equipment as may be necessary to receive and properly
implement at Your dealership, the services contemplated by this Agreement.
18. You are responsible to maintain Your own equipment at Your sole expense and
will assume all responsibility for loss, damage, and maintenance to Your
own equipment.
19. You understand that ABT services are free of charge to a Purchase
Requester. You or any employee/agent of You, are expressly prohibited from
representing to any Purchase Requester, in any manner, either orally or in
writing, the existence of any charge or fee to be paid to You or to You on
behalf of ABT by reason of their using Our services to facilitate the
Purchase or Lease of any vehicle from You.
20. DEALER REAL TIME SYSTEM(R)U.S.XXX.PEND. (DRT): You agree to actively
utilize the DRT information system in the daily implementation of the
services contemplated by this Agreement. As an express condition of the
license hereby granted to You by ABT, You are prohibited from reselling,
loaning or otherwise sharing the use of Your password with anyone not
subject to this contract.
21. ABT ACCEPTANCE CORPORATION PRE-APPROVED FINANCING: Through Our affiliate,
Autobytel Acceptance Corporation, a Delaware Corporation ("ABTAC"), We
offer pre-approved, third-party, low-cost financing programs on Our website
for consumers from commercial lending sources arranged by ABTAC or through
federal credit unions under contract with ABTAC (the "Financing
Arrangements"). To accommodate Purchase Requesters who are pre-approved for
financing through ABTAC's lenders and to participate in the financial
rewards offered by these financing programs, You must apply on Your own to
each lender for a Dealer Participation Agreement and receive approval from
each lender independently. If You do not participate with ABTAC's lenders,
You will still receive Purchase Requests however, Purchase Requesters will
be notified that You are not participating in Our financing programs and We
will be providing them with alternative lending options, including but not
limited to direct lending, if available. If You are approved by each lender
as a participating Dealer, You agree to honor the following commitments to
Our financing program:
a. You promise to maintain a loan-closing ratio of at least ten percent
(10%) for those loans pre-approved by ABTAC lenders.
b. You promise that You will use best efforts to re-solicit for an
application to ABTAC finance programs to at least ten percent (10%) of
the non-credit Purchaser Requesters forwarded to You by ABT.
c. You promise that You or any one in Your employment will not
intentionally disparage or otherwise mislead the customer as to the
terms and conditions of Our Financing Arrangements.
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d. When a Purchase Requester has been pre-approved at Our lender's
prevailing buy rate or at a credit union under contract with ABT for
Our financing, You promise that You will not actively solicit the
Purchase Requester to convert to an independently promoted loan
program offered through Your dealership. Violation of this section
will be considered a breach of this contract and subject this
Agreement to termination in accordance with the terms outlined in this
Agreement.
ABT, in many cases, has arranged for You to be compensated for Your
participation in ABTAC arranged finance programs. This compensation, if
available, will come directly from the lender and not ABT or ABTAC. Any
disagreement regarding the terms and conditions of a lender's Participation
Agreement shall be dealt with exclusively between You and the lender.
Neither ABT nor ABTAC makes any guarantee that You will receive
compensation from any lender. ABTAC uses its best efforts to negotiate
advantageous terms for Our subscribing dealers and will, from time to time,
add or delete lenders, including banks, credit unions, thrift and loans and
other sources to benefit You and the Purchase Requester.
22. CERTIFIED PRE-OWNED CYBERSTORE(R) PARTICIPATION ELECTION (OPTIONAL): Your
participation in Our used vehicle program is optional and there is an
additional charge for this service. The terms and conditions of Your
participation in this program are set forth separately in Appendix "B"
attached to this Agreement and incorporated herein by this reference.
23. AFTERMARKET ACCESSORIES (OPTIONAL): Your participation in Our Aftermarket
Accessory program is optional and there is an additional charge of [ ]
dollars per Purchase Request wherein Aftermarket Accessory items are
requested. The terms and conditions of Your participation in this program
are set forth separately in attached Appendix "C" to this Agreement and
incorporated herein by this reference.
24. COMPENSATION TO ABT: You promise to pay ABT a monetary fee comprised of an
initial start-up fee and a monthly subscription fee as follows:
[SIGN UP FEE WRITTEN] Dollars ($[SIGN UP FEE]) as an initial start-up
fee. Of this fee, [ ] shall be allocated to the DRT initial start-up
fee, receipt of which is hereby acknowledged. As additional ongoing
consideration, You agree to pay ABT the amount of [MONTHLY FEE
WRITTEN] ($[MONTHLY FEE]) as a total monthly subscription fee, which
is due and payable in advance on the first day of every calendar
month. The total monthly amount due shall be allocated as follows: DRT
Access Fee, [ ]; Certified Pre-Owned CyberStore(R), [UCC MONTHLY];
[MAKE 1], [MAKE 1 MONTHLY] [MAKE 2] [MAKE 2 MONTHLY] [MAKE 3] [MAKE 3
MONTHLY] [MAKE 4] [MAKE 4 MONTHLY] [MAKE 5] [MAKE 5 MONTHLY]
The amount of fees charged for your subscription is determined by several
factors, including but not limited to your geographical location, the
franchise make of vehicle you offer through this subscription, population
concentrations, per capita vehicle registrations for your PMA, and ABT's
Seasonal Annual Adjusted Rate (SAAR) percentage share of national retail
vehicle sales for the year in question. The above stated fees shall remain
unchanged during the first six (6) months of this Gold Term Agreement.
Thereafter, ABT, in Our sole discretion, may change the fee charged to You
upon thirty- (30) days written notice, however, in no event shall more than
two (2) such fee changes take place within the initial twelve-(12) month
term of this Agreement. In the event this Gold Term Subscription agreement
is extended pursuant to section Section I(13), ABT reserves the right to
change the fee, with thirty (30) days written notice to You according to
Section Section IV(4) below. Payments received more than thirty (30) days
following the invoice date shall be subject to a late fee of $25.00 and
shall incur interest charges on the balance due at an annual percentage
rate of eighteen (18.0%) percent per annum. ABT reserves the right to
suspend services for any payment sixty (60) days or more past due until
the account is brought current.
The first month's total fee and initial sign-up fee is due and payable
concurrently with the execution of this Agreement, receipt of which is
hereby acknowledged. All fees paid to ABT under this Agreement are deemed
earned upon the execution of this Agreement or delivery of services
whichever occurs first. All fees paid to ABT pursuant to this Agreement are
non-refundable regardless of circumstances.
25. DEALER MAY TERMINATE THIS AGREEMENT :
(a) immediately, if an order for liquidation against ABT is entered and
not stayed in a bankruptcy proceeding;
(b) immediately, if ABT is guilty of willful misconduct in the performance
of its duties under this Agreement; or
(c) immediately for any breach of this Agreement by You which is not cured
within ten (10) days after You provide written notice of the breach to
Us; or
(d) immediately upon a finding of Dealer's violation of state or Federal
law or conviction for such violation, whether administratively,
civilly, or criminally;
(e) upon thirty (30) days written notice in accordance with Section
Section IV(4) of this Agreement following the effective date of any
adjustment in Dealer's PMA pursuant to Section Section I(12) of this
agreement;
(f) upon thirty (30) days written notice in accordance with Section
Section IV(4) of this Agreement following the effective date of any
increase in Dealer's monthly Subscription fee pursuant to Section
Section II(24) of this agreement;
(g) upon thirty (30) days written notice in accordance with Section
Section IV(4) of this Agreement, for any reason on or after the last
day of the sixth (6) month from the date of this agreement.
(h) Under no other circumstances may Dealer terminate this Agreement
without the prior written consent of ABT's then Chief Operating
Officer.
26. TAXES: You are solely responsible for paying all taxes (local, state and
federal) imposed as a result of the sale or lease of any vehicle(s). In the
event We are required to collect and/or pay any taxes by reason of a
consumer's purchase or lease of a vehicle from You through the services ABT
provides to You, You agree to promptly reimburse Us for those taxes We were
required to pay within ten (10) days following receipt of written
notification from ABT.
27. INDEMNIFICATION: You promise to indemnify and hold harmless Us and Our
subsidiaries and/or affiliates and Our respective members, managers,
directors, officers, employees, and agents against any and all losses,
liabilities, claims, awards, damages, judgments, settlements, and costs,
including fees and expenses, arising out of or related to Your negligence
or wrongful conduct, or arising out of any third-party claim, including,
but not limited to, any claim for damages by any person or entity regarding
the purchase, lease and/or finance of a motor vehicle from Dealer or
resulting from Dealer's utilization of ABT's services, or from any other
act done or omitted to be done by Dealer in executing the terms of this
Agreement. In the event We are served with notification of action or suit
against You, We will promptly notify You of such claim.
You promise to defend at Your sole cost and expense, all such claims,
actions, lawsuits, or proceedings. In all events, ABT, in its sole
discretion, shall have the right to participate in the defense of any such
action through counsel of its own choosing at ABT's sole expense. In the
event You are served with notification of action or suit against Us, You
promise to promptly notify Us of such claim(s), and ABT, in its sole
discretion, shall defend all such actions or suits through counsel of Our
own choosing.
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IV. GENERAL TERMS & CONDITIONS:
1. WARRANTY LIMITATION: ABT does not guarantee or warranty the performance of
the services provided hereunder including but not limited to the number of
Purchase Requests or vehicle sales/leases Dealer may receive from Our
service. You specifically waive 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 of damages, even if advised of the possibility of
such damages.
2. NO WAIVER: The failures of either Party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any right
hereunder.
3. INDEPENDENT CONTRACTOR ARRANGEMENT. The relationship created by this
Agreement between ABT and Dealer is intended to be and shall for all
purposes hereunder be considered as an independent contractor. Nothing
contained in this Agreement and/or any Appendices or Amendments hereto
shall be construed as intending, creating or constituting a franchise,
partnership, agency, or joint venture between ABT and Dealer.
4. NOTICES: All notices and requests in connection with this Agreement and/or
any Appendices and/or Amendments hereto shall be given or made upon the
respective Parties in writing and shall be deemed given by any of the
following means 1) on the day deposited in the U.S. mail, postage prepaid,
and addressed as designated at the top of this Agreement, or to such
address as the Party to receive the notice or request so designates by
written notice to the other. 2) by Facsimile which shall be deemed received
on the day sent when a confirming notice from the sending facsimile machine
has been generated. Or 3) by overnight delivery service or courier, which
shall be deemed received on the day of physical delivery.
5. ASSIGNMENT: This Agreement and the rights and duties hereunder, including
any Appendices or Amendments hereto 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 ten-(10)
days written notice to Dealer.
6. PRESS RELEASES: Unless We agree in writing to the contrary, You are
prohibited from issuing any press release(s) or making any public
announcement(s) regarding Your business relationship with ABT or ABT's
services or programs provided to You. You may however, make references to
Your affiliation with xxxxxxxxx.xxx inc. in any advertisement published by
You for Your own benefit.
7. GOVERNING LAW AND JURISDICTION: This Agreement and the performance
hereunder shall be governed and construed in accordance with the laws of
the State of California. Any dispute or claim arising between the Parties
hereto that is brought by Dealer against ABT shall be brought in a court of
competent jurisdiction located in the County of Orange in the State of
California, and the Parties hereto agree to jurisdiction in California. Any
dispute or claim arising between the Parties hereto that is brought by ABT
against Dealer shall be brought in a court of competent jurisdiction
located in the county and state wherein the principal place of business is
located and the Parties hereto agree to jurisdiction in that state and
county.
8. 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 reasonable attorneys fees and costs incurred as a
result. 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.
9. CONFIDENTIALITY: Each of the Parties hereto, on behalf of themselves and
their employees, agree 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
their internal use only to further their performance under this Agreement.
Each Party hereto 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
Requester constitutes theft and will greatly damage the non-disclosing
Party and is prohibited. Dealer shall not impart ABT's services or the
concept thereof 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.
10. TITLE TO SYSTEM, TRADEMARKS: To the extent permitted by law, the services
to be provided under this Agreement and any Appendices or Amendments are
proprietary to ABT, and title thereto remains in ABT. All proprietary title
and rights held by ABT extends to any extension of this Agreement and any
Appendices and Amendments, together with all copies thereof. All applicable
rights to patents, copyrights, trademarks, and trade secrets in the System
and in the name "Xxxxxxxxx.xxx" and its logo, 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 trademark and
service xxxx for inclusion on business cards, and media advertisements that
communicate Your association with ABT. You may request, in writing, a copy
of ABT's logo, trademarks, artwork, and other printed material for use in
Your advertisements. This authority to use ABT's name, logo, and other
artwork is revocable at any time by ABT. ABT reserves the right to review
such uses and if determined to be abusive of this privilege, revoke Your
permission to use the trademark in the future.
11. CONTROLLING AGREEMENT: This Agreement and all Appendices and Amendments
hereto supersedes any and all agreements, oral or written, between the
Parties, and contains all of the representations, covenants, and agreements
between the Parties with respect to services described in this Agreement.
Each Party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made
by any Party, or anyone acting on behalf of any Party, which are not
contained in this Agreement and/or any Appendices and/or Amendments hereto.
No other Agreement(s), statement(s), or promise(s) not contained in this
Agreement or Appendices or Amendments hereto will be valid or binding.
12. MODIFICATIONS TO AGREEMENT: Except where otherwise set forth in this
Agreement, all modifications or amendments to this Agreement shall be in
writing, properly noticed in accordance with the notice provisions of this
Agreement. Any amendment, change or modification of this Agreement will be
effective only when in writing and signed by the Party to be charged. Such
signature shall not be unreasonably withheld by the Party to be charged and
shall be returned to the maker not more than ten (10) calendar days after
receipt. Except where otherwise reserved in this Agreement, the Parties
agree that any unilateral changes, amendments or modifications made by one
Party are invalid against the other Party unless ratified in writing by the
Party to be charged.
13. APPENDICES & AMENDMENTS: All Appendices and subsequent Amendments hereto
are incorporated into this Agreement by this reference as through fully set
forth herein.
14. 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 and any Appendices and/or Amendments
15. REQUISITE AUTHORITY: The undersigned hereby represents that he or she is
authorized on behalf of their respective corporations to enter into this
Agreement, and that each corporation is in good standing under the laws of
the state of their incorporation.
This Agreement is executed this ________day of __________________________, 1999.
Dealer: [LEGAL NAME] xxxxxxxxx.xxx inc
By: ___________________________________ By: ________________________________
Name: [AA 1ST NAME] [AA LAST NAME] Name: Xxx Xxxxxxxxxx
Title: [AA TITLE] Title: Chief Operating Officer
4
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APPENDIX "A"
MARKET AREA ASSIGNMENT
(NEW VEHICLES ONLY)
Subject to the terms and conditions set forth in the foregoing ABT Subscription
Agreement between xxxxxxxxx.xxx inc. and [LEGAL NAME], the following Postal
Codes are assigned to Dealer and shall comprise Dealer's new vehicle Market
Area:
Acknowledged: [LEGAL NAME]
Dealer Principal:_____________________________________ Date:____________________
[AA 1ST NAME] [AA LAST NAME]
[AA TITLE]
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APPENDIX "C"
AFTERMARKET ACCESSORY OPTION ACCEPTANCE AGREEMENT
Subject to the terms and conditions set forth in Section II (23) of the ABT Gold
Term Subscription Agreement between xxxxxxxxx.xxx inc. and [Legal Name], agrees
as follows:
(a) ABT shall provide a marketing venue whereby dealer may offer for sale
available optional equipment, service warranties, or other accessories
applicable to the vehicle described in a particular Purchase Request;
(b) Dealer shall be responsible for listing, updating and refreshing the data
listing the available accessories;
(c) Dealer shall compensate ABT [ ] containing a request for Aftermarket
Accessories, regardless of the manufacturer or supplier of the accessory.
Said amount is due to ABT upon tender of the valid Purchase Request,
regardless of whether an actual sale of said vehicle or accessory(s)
resulted from such request. ABT shall credit dealer for invalid Purchase
Requests which are defined as Purchase Requests containing bogus names,
phone number or e-mail address creating a physical inability to contact the
Purchase Requester. Credits shall also be granted for duplicate Purchase
Request from the same person for the same vehicle type. All credits shall
be applied as a offset for any amounts due and payable under the
Aftermarket program for the month immediately following the month in which
the request for credit is received.
Acknowledged and accepted: [LEGAL NAME]
Dealer Principal:_____________________________________ Date:____________________
[AA 1ST NAME] [AA LAST NAME]
[AA TITLE]
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APPENDIX "B"
CERTIFIED PRE-OWNED CYBERSTORE(R) ELECTION
The undersigned Dealer elects to participate in the Certified Pre-Owned
CyberStore(R) services program and agrees to the following terms and conditions,
in addition to those set forth in the Gold Term Subscription Agreement:
1. CUSTOMER SERVICE GUIDELINES
Dealer agrees to abide by Certified Pre-Owned CyberStore(R) Customer
Service Guidelines ("Guidelines"). ABT in their sole discretion may, from time
to time, amend the Guidelines, or impose additional Guidelines on thirty-(30)
days' notice to Dealer. Dealer acknowledges that following the Guidelines are
crucial to the value of ABT's services and agrees to follow them and any
amendments or additions to it even though they may require extra work or
expense. The Guidelines include the following:
(i) Limited Warranty: Dealer will warranty all vehicles sold through the
Certified Pre-Owned CyberStore(R). The warranty coverage will not be less
favorable to the purchaser than the law of the where Dealer is located, and as a
minimum will be: "Three (3) months or 3,000 miles, whichever comes first." The
warranty will cover all matters governed by applicable law and by the form of
the attached warranty. Dealer will indemnify ABT for any third-party claims
arising under any warranty.
(ii) Vehicle Pricing: Dealer will provide prices ("Posted Prices") and
vehicle information for display on the ABT Website of all vehicles posted to the
Certified Pre-Owned CyberStore(R). Dealer agrees to price vehicles competitively
within the market region in which they are located. Dealer, and not ABT, shall
be solely responsible for the quality and accuracy of such information. ABT
reserves the right to monitor the quality of the photos and information
submitted. Dealer shall promptly correct any information or photo(s) deemed by
ABT to be inaccurate or below necessary quality levels set forth in This
Agreement. If Dealer fails to correct such photo image(s) or information within
72 hours of ABT's written notification thereof, ABT may remove the photo
image(s) and/or information from its Website.
(iii) Vehicle Return Policy: Except where expressly prohibited by law,
Dealer will offer, in writing, a return option allowing a purchaser to return a
vehicle to Dealer within 72 hours or 300 miles, whichever comes first. Provided
there has been no damage to the vehicle, Dealer will refund 100% of the amount
paid by the purchaser to the Dealer for the vehicle. Dealer will provide each
purchaser the name and phone number of the Dealer employee to contact to
exercise the repurchase option. Dealer will facilitate the purchaser's exercise
of the option in good faith, and will use its best efforts to maximize the
purchaser's satisfaction with the repurchase experience. Dealer agrees to refund
all amounts due to the purchaser within five (5) business days.
(iv) Out of Area Repairs: Dealer will participate in the emergency
repair system established by ABT. During the warranty period, the emergency
repair system allows a purchaser of a Certified Pre-Owned CyberStore(R) vehicle
who is more than 100 miles from their residence and encounters a situation where
the vehicle is not operational (i.e. cannot be driven), to contact the nearest
Certified Pre-Owned CyberStore(R) Dealer (the "Repairing Dealer") and have the
Repairing Dealer perform any warranted service or repair. The Repairing Dealer
will contact the dealership where the purchaser acquired its vehicle (the
"Selling Dealer") and obtain an irrevocable Repair Order (an "RO") from the
Selling Dealer authorizing the repair of the vehicle. For other covered items
other than those that disabled the vehicle, the owner should return to the
Selling Dealer. In the interest of customer satisfaction and improved
inter-dealer relations, the resulting RO will be calculated on 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 Selling Dealer will
have the option of providing alternate transportation to the customer,
retrieving the affected unit, and repairing the vehicle at the Selling Dealer's
service location.
2. DIGITAL IMAGES
Dealer may publish an unlimited number of vehicles (images) on the
Certified Pre-Owned CyberStore(R). For each vehicle, Dealer shall publish one
digital image together with relevant information in accordance with the
Agreement. Dealer in accordance with the Specifications shall produce such
images and guidelines set forth in This Agreement below.
3. DIGITAL CAMERAS
ABT shall provide the dealer for their use, a Digital Camera. In the
event Dealer shall cancel this subscription before the sixth (6th) month
anniversary and only in such event, Dealer shall promptly pay ABT the sum of [ ]
in exchange for such camera. ABT will not accept a return of the camera in lieu
of such payment unless the camera is returned unused, with its original
packaging intact.
4. SPECIFICATIONS AND GUIDELINES
All vehicle images 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.
Accepted: [LEGAL NAME] [Legal Name]
Dealer Principal:_____________________________________ Date:____________________
[AA 1ST NAME] [AA LAST NAME]
[AA TITLE]
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ATTENTION DEALER: THIS IS A SUGGESTED SAMPLE USED VEHICLE BUYERS GUIDE FORM.
PLEASE USE FTC APPROVED FORMS THAT INCLUDE ALL STATE-MANDATED DISCLOSURES, ETC.
FRONT SIDE OF FORM
--------------------------------------------------------------------------------
LIMITED WARRANTY
FULL X LIMITED WARRANTY.
----- ---
The dealer will pay 100% of the labor and 100% of the parts for the covered
systems that fail during the warranty period. See reverse side of this form for
the explanation of warranty coverage, exclusions, and the dealer's repair
obligations.
SYSTEMS COVERED: Duration:
Engine Power steering 90 days or 3000 miles
Transmission Power brakes whichever occurs first.
Transaxle Air Conditioning
Drive line Electrical Rear end
*See below for systems and parts coverage.
Travel Repair Provision. A vehicle purchased through the Certified Pre-Owned
CyberStore(R) that becomes inoperative when traveling over 100 miles from the
originating dealer will be eligible for repair at Xxxxxxxxx.xxx accredited
dealerships. Travel repair service will be available throughout the U.S. and
Canada via the Xxxxxxxxx.xxx accredited dealer network. On major repairs, the
selling dealer has the option of providing the customer with alternate
transportation and repairing the unit at the selling dealer's location. A
vehicle that is non-operational will be repaired sufficiently to return to the
originating dealer where additional repairs can be completed. To take advantage
of the Travel Repair Provision, customers may contact the originating dealer who
will direct them to the nearest Xxxxxxxxx.xxx accredited dealership, or inquire
through the Xxxxxxxxx.xxx website for instructions and directions:
XXX.XXXXXXXXX.XXX. PLEASE NOTE: Appearance and convenience items will not be
covered by the Travel Repair Provision, nor will light bulbs, fuses, alignments,
adjustments, switches, oil filters, and other maintenance items. Failure to
strictly comply with the terms and conditions of this limited warranty will
cause this limited warranty to become null & void.
SERVICE CONTRACT. A service contract is available at an extra charge on this
vehicle. Ask Your Dealer for details as to coverage, deductible, price, and
exclusions.
PRE PURCHASE INSPECTION: Ask the dealer if You may have this vehicle inspected
by Your mechanic either on or off the lot.
------------- ------------ -------------------- ------- ---------------
vehicle make model dealer stock number year vin number
--------------------------------------------------------------------------------
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BACK SIDE OF FORM
FULL X LIMITED WARRANTY.
----- ---
The dealer will pay 100% of the labor and 100% of the parts for the covered
systems that fail during the warranty period. The following is the entire
representation of coverage; no other systems or parts are suggested or implied.
State law may give you additional rights.
Systems Covered: Parts Covered:
Engine: All internally lubricated parts including timing chains, gears and
cover, timing belt, pulleys and cover, oil pump and gears, water pump, valve
covers, oil pan, manifolds, flywheel, harmonic balancer, engine mounts seals and
gaskets, engine block, cylinder heads and turbocharger housing if damaged by the
failure of internally lubricated parts.
Transmission/Transfer Case: All internally lubricated parts, torque converter,
vacuum modulator, transmission mounts, seals and gaskets. (Manual clutch
assembly and component parts are not covered)
Front wheel Drive: All internally lubricated parts, axle shafts, output shafts,
and constant velocity joints, front hub bearings, seals and gaskets.
Rear wheel Drive: All internally lubricated parts, propeller shafts, supports
and U-joints, drive shafts, axle shafts and bearings, seals and gaskets.
Brakes: Master cylinder, power booster, wheel cylinders, calipers, hydraulic
lines and fittings. (ABS component parts are not covered.)
Steering: Steering gear housing and all internal parts, power steering pump,
valve body and rack.
Electrical: Alternator, generator, and starter.
Air Conditioner: Compressor, evaporator core, condenser.
ALL SYSTEMS AND PARTS LISTED ABOVE ARE COVERED 90 DAYS
FROM PURCHASE OR 3000 MILES, WHICHEVER OCCURS FIRST.
NOTE: This Agreement is exclusively between the selling dealer and the customer.
By accepting this Limited Warranty, Customer agrees to release xxxxxxxxx.xxx
inc. from all obligations with respect to the acquisition, service, or repair of
the covered vehicle. Customer's failure to strictly adhere to the terms and
conditions of this Limited Warranty shall result in loss of coverage.
---------------------------------------- -----------------------------------
Xxxxxxxxx.xxx Accredited Dealer / Date Customer Signature / Date
--------------------------------------------------------------------------------
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135 POINT CERTIFIED PRE-OWNED CYBERSTORE(R) VEHICLE CHECKLIST
==================================================================================================================
ADDRESS/LOCATION:
==================================================================================================================
YR: MAKE: MODEL: BODY TYPE: ENGINE: 4 6 8 CYL TRANS:
------------------------------------------------------------------------------------------------------------------
VIN: COLOR: LICENSE PLATE NO: MILEAGE:
==================================================================================================================
CIRCLE OPTIONS: WHEELS:
RADIO: AM/FM CASSETTE EQUALIZER CD ALLOY CUSTOM:______________
------------------------------------------------------------------------------------------------------------------
INTERIOR: VINYL CLOTH LEATHER AIR BAGS 1 OR 2 SUN ROOF AIR CONDITION: YES NO
------------------------------------------------------------------------------------------------------------------
POWER: WINDOWS LOCKS SEATS STEERING BRAKES/ABS TILT CRUISE REAR DEFROSTER
------------------------------------------------------------------------------------------------------------------
MAINTENANCE ITEMS: MECHANICAL AREA: OK OR DESCRIBE DAMAGE CIRCLE DOLLAR
ONE
==================================================================================================================
ENGINE OIL LOW DIRTY STARTING Repair $
BURNED LEAKS Replace
------------------------------------------------------------------------------------------------------------------
TRANS FLUID LOW DIRTY ENGINE Repair $
BURNED LEAKS Replace
------------------------------------------------------------------------------------------------------------------
BRAKE FLUID LOW DIRTY TRANSMISSION Repair $
BURNED LEAKS Replace
------------------------------------------------------------------------------------------------------------------
COOLANT LOW XXXXX DRIVE LINE Repair $
BURNED LEAKS Replace
------------------------------------------------------------------------------------------------------------------
PWR STEERING LOW DIRTY STEERING Repair $
BURNED LEAKS Replace
------------------------------------------------------------------------------------------------------------------
BATTERY CORRODED BRAKES 50% LINING Repair $
LOW CHARGE Replace
------------------------------------------------------------------------------------------------------------------
BELTS SERPENTINE CLIMATE CONTROL Repair $
WORN Replace
------------------------------------------------------------------------------------------------------------------
HOSES WORN SUSPENSION Repair $
Replace
==================================================================================================================
BODY AREA: OK OR DESCRIBE CIRCLE ONE DOLLAR ELECTRICAL OK OR DESCRIBE CIRCLE DOLLAR
DAMAGE AREA: DAMAGE ONE
==================================================================================================================
WINDSHIELD Repair $ TAIL Repair $
Replace LIGHTS Replace
------------------------------------------------------------------------------------------------------------------
HOOD / COWL Repair $ PARKING Repair $
Replace LIGHTS Replace
------------------------------------------------------------------------------------------------------------------
GRILL Repair $ TURN Repair $
Replace SIGNALS Replace
------------------------------------------------------------------------------------------------------------------
FRONT BUMPER Repair $ INTERIOR Repair $
Replace LIGHTS Replace
------------------------------------------------------------------------------------------------------------------
REAR BUMPER Repair $ HORN Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------
HEADLIGHT ASSY'S Repair $ POWER Repair $
Replace WINDOWS Replace
------------------------------------------------------------------------------------------------------------------
RIGHT FENDER Repair $ POWER Repair $
Replace LOCKS Replace
------------------------------------------------------------------------------------------------------------------
RIGHT SIDE GLASS Repair $ POWER Repair $
Replace SEATS Replace
------------------------------------------------------------------------------------------------------------------
RIGHT DOORS Repair $ MEMORY Repair $
Replace SEAT Replace
------------------------------------------------------------------------------------------------------------------
RIGHT QUARTER Repair $ POWER Repair $
Replace MIRROR Replace
------------------------------------------------------------------------------------------------------------------
REAR GLASS Repair $ MEMORY Repair $
Replace MIRROR Replace
------------------------------------------------------------------------------------------------------------------
DECK LID Repair $ RADIO Repair $
Replace AM/FM Replace
------------------------------------------------------------------------------------------------------------------
LEFT QUARTER Repair $ TAPE Repair $
Replace PLAYER Replace
------------------------------------------------------------------------------------------------------------------
LEFT DOORS Repair $ CD Repair $
Replace PLAYER Replace
------------------------------------------------------------------------------------------------------------------
LEFT SIDE GLASS Repair $ CLOCK Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------
LEFT FENDER Repair $ KEYLESS Repair $
Replace ENTRY Replace
------------------------------------------------------------------------------------------------------------------
ROOF Repair $ ANTI-THEFT Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------
WHEELS / COVERS Repair $ WINDSHIELD Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------
TIRES 5/32" TREAD Repair $ WINDSHIELD Repair $
Replace WIPER Replace
------------------------------------------------------------------------------------------------------------------
SPARE TIRE W/XXXX Repair $ HOOD Repair $
Replace RELEASE Replace
------------------------------------------------------------------------------------------------------------------
FRONT/REAR SEATS Repair $ TRUNK Repair $
Replace RELEASE Replace
------------------------------------------------------------------------------------------------------------------
INTERIOR/DASH Repair $ GAS Repair $
Replace DOOR Replace
------------------------------------------------------------------------------------------------------------------
EXTERIOR PAINT Repair $ SPEEDOMETER Repair $
Replace Replace
------------------------------------------------------------------------------------------------------------------
OTHER: Repair $ ODOMETER Repair $
Replace Replace
==================================================================================================================
CIRCLE CHOICE: TOTAL: $
THIS VEHICLE ------ WAS/WAS NOT TEST DRIVEN OVERALL CONDITION: GOOD FAIR POOR
==================================================================================================================
10
