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EXHIBIT 10.11
WEB ADVERTISING AND PROMOTION AGREEMENT
This Web Advertising and Promotion Agreement (the "Agreement") is made
this __ day of January 2000 (the "Effective Date") by and between
Xxxxxxxxxx.xxx, a Delaware corporation ("Greenlight"), and XxxxXxxxxx.xxx, a
Delaware limited liability company ("AutoTrader").
In consideration of the mutual promises contained herein, the parties
agree as follows:
1. Definitions. The following terms are used in this Agreement
with the respective meanings set forth below:
"AutoTrader Brand Features" shall mean AutoTrader's
trademarks, service marks, logos, navigation and other distinctive brand
features of AutoTrader.
"AutoTrader Jump Page" shall mean the page maintained on the
AutoTrader Site that is the first page a user sees when clicking on an
AutoTrader Link from Greenlight and contains AutoTrader Brand Features and
return link to Greenlight.
"AutoTrader Links" shall mean the hyperlinks placed by
Greenlight under this Agreement on the Greenlight Site, which hyperlinks shall
link to the AutoTrader Jump Page.
"AutoTrader Site" shall mean the web site owned and operated
by AutoTrader currently located at xxxx://xxx.xxxxxxxxxx.xxx (as well as any
AutoTrader-controlled co-branded version(s) of the site).
"Click-Throughs" shall mean a user presence at the Greenlight
Site that originated from any Greenlight Link placed by AutoTrader on the
AutoTrader Site or contained in any E-Mail messages or newsletters sent to
AutoTrader Site users under this Agreement.
"Greenlight Banner Advertisements" shall mean Greenlight
banner advertisements that promote the goods and/or services of Greenlight and
permit users to navigate directly to the Greenlight Jump Page.
"Greenlight Brand Features" shall mean Greenlight's
trademarks, service marks, logos, navigation and other distinctive brand
features of Greenlight.
"Greenlight Competitor" shall mean any person or entity
offering new automobiles for sale online. See Exhibit B. Greenlight Competitors
shall not include dealerships selling new cars at physical lots or the
automobile manufacturers listed on Exhibit A.
"Greenlight Jump Page" shall mean the page maintained on the
Greenlight Site that is the first page a user sees when clicking on a Greenlight
Link from the AutoTrader Site and contains the Greenlight Brand Features as well
as a return link to AutoTrader. The Greenlight Jump Page will also include
AutoTrader Brand Features to the extent permissible in connection with
Greenlight's other contractual obligations.
"Greenlight Links" shall mean the hyperlinks placed by
AutoTrader under this Agreement including, without limitation, Greenlight Banner
Advertisements, Liner Ads and New Car Page content which hyperlinks shall link
to the Greenlight Jump Page.
"Greenlight Site" shall mean the web site owned and operated
by Greenlight currently located at xxxx://xxx.xxxxxxxxxx.xxx.
"Phase I" represents the aspects of this Agreement that do not
require more than 2 engineering days to implement (e.g. banner ads).
"Phase II" represents aspects of this Agreement that require
12 weeks lead time for implementation (e.g. New Car Page).
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"Phase III" represents aspects of this Agreement that require
24 weeks of lead time for implementation (e.g. Liner Ads)
"Promotional E-Mail Message" shall mean any e-mail message
created and attributed to AutoTrader that contains promotional material
targeting individuals who have given AutoTrader permission to receive emails.
"Term" shall mean the period beginning on the Effective Date
and continuing for 12 months following the launch date of Phase III, as
specified by Section 7.1, below.
2. Promotion for the Greenlight Site.
2.1 Promotion on the New Car Page. From the period
beginning no later than 12 weeks after both (i) the Effective Date and (ii) the
date that Greenlight has delivered all creative and technical elements required
to create Greenlight's presence (as described below) on the AutoTrader site
("Phase II") and throughout the remainder of the Term, AutoTrader agrees to:
(a) maintain a web page on the AutoTrader Site
for customers interested in purchasing new automobiles (the "New Car Page").
This page shall include contextual information giving consumers the opportunity
to buy a NEW car through Xxxxxxxxxx.xxx as well as Greenlight Brand Features and
links to the Greenlight Site. This information and corresponding links to the
Greenlight Site shall occupy space at least equivalent to the space dedicated to
the New Car Information , and will be no less than 50% of the space dedicated to
new car information on the AutoTrader Site today (that is, the space within the
new car information box represented in Exhibit D). Pursuant to AutoTrader's
agreement with America On Line (AOL), these features will be seen only by
AutoTrader users who did not reach the AutoTrader Site via AOL, XXX.xxx or
Xxxxxxxxxx.xxx;
(b) place such New Car Page no more than one
level below the home page of the AutoTrader Site and shall make it reachable by
clicking on a "New Car Info" link located in a prominent position (above the
fold on a 600x800 screen) on the home page of the AutoTrader Site;
(c) cooperate with Greenlight to develop
programs and/or promotional offers to encourage consumers to click into the New
Car Page; and
2.2 Liner Ads. As soon as is possible using commercially
reasonable efforts, but no later than August 1, 2000 (phase III) and throughout
the remainder of the Term, AutoTrader agrees to:
(a) include a contextual Greenlight Link in or
near all search results AutoTrader provides to persons searching for used
automobiles on the AutoTrader Site when users request models up through the
current or prior model year (e.g. for any search on the Effective Date of this
Agreement, through model years 1999 or 2000). The link will be in the form of
the search results that include Greenlight new cars, with such search results
sorted in a mutually agreeable manner, with the parties working together to
include Greenlight cars in results listed 3rd through 5th on the list. Pursuant
to AutoTrader's agreement with America On Line (AOL), these features ("Liner
Ads") will be seen only by AutoTrader users who did not reach the AutoTrader
Site via AOL, XXX.xxx or Xxxxxxxxxx.xxx;
(b) provide to Greenlight a desired format for
the Greenlight Link contextual information in order to place the information on
the AutoTrader site; and
(c) cooperate with Greenlight in passing to
Greenlight the necessary information from a customer's search request on the
AutoTrader Site in order to allow Greenlight to provide relevant information to
the customer regarding new automobiles offered for sale on the Greenlight Site.
2.3 Liner Ads Substitute. Starting as of the commencement
of Phase II and continuing through (but ending as of) the launch of the Liner
Ads (Phase III), Autotrader will include an advertising panel in the used car
search results that will be placed directly below the navigation bar on the left
and measure approximately 100x100 pixels in size. (See example in Exhibit E).
This panel can be customized by Greenlight by making it
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specific to the make and model of the automobile for which any search is made
and will be shown to all users who request models up through the current or
prior model year (e.g. for any search on the Effective Date of this Agreement,
through model years 1999 or 2000). Pursuant to AutoTrader's agreement with
America On Line (AOL), these features will be seen only by AutoTrader users who
did not reach the AutoTrader Site via AOL, XXX.xxx or Xxxxxxxxxx.xxx.
2.4 Purchase of Rights to Send E-Mail Messages.
AutoTrader maintains a list (the "Registered Users List") of those users of the
AutoTrader Site who have provided their consent to receive e-mail messages from
AutoTrader and its marketing partners. The Registered Users List currently
contains approximately 50,000 addressees, and is updated on a continuing basis.
During the Term of this Agreement, Greenlight shall commit to causing AutoTrader
to send a Greenlight promotional e-mail message to users on the Registered Users
List 3 times per calendar year at a cost of Fifteen Cents ($0.15) per user.
AutoTrader will invoice Greenlight following each issuance of an e-mail message
to the Registered Users List and Greenlight will pay fees for such use of the
Registered Users List within 30 days of AutoTrader's invoice.
2.4.1 Exclusivity. During the Term of this Agreement,
AutoTrader will not solicit Registered User List
purchases from Greenlight Competitors. Should a
Greenlight Competitor approach AutoTrader to request
the purchase of rights to send e-mail messages to the
Registered User List, Greenlight shall have right of
first refusal to purchase the right to send an
additional e-mail message (in addition to those
Greenlight is obligated to purchase pursuant to
Section 2.4, above) to the Registered User List
instead at the price of Fifteen Cents ($0.15) per
user. In the event that Greenlight does not exercise
its right of first refusal, AutoTrader will be free
to sell the right to the Greenlight Competitor.
2.4.1.1 Newsletter Participation Option. Greenlight
shall have an option but not obligation to
participate in AutoTrader's partner e-mail
newsletter, on a space-available basis. Such
newsletter consists of a message about the
AutoTrader site composed by AutoTrader and
sent to the Registered Users List. Each
newsletter will contain up to four
AutoTrader partner messages. Partner
messages shall be created by the partners
and approved by AutoTrader. The first
partner message shown in the newsletter
shall be the lead partner and such partner
shall pay Seven Cents ($0.07) for each
addressee receiving the e-mail message. All
other partners shall pay Five Cents ($0.05)
for each addressee receiving an e-mail
message. In the event that Greenlight
participates in any such newsletter,
Greenlight shall pay AutoTrader the
appropriate fee within thirty (30) days of
AutoTrader's invoice therefor.
2.4.1.2 E-Mail Click-Throughs. Click-Throughs
generated by Greenlight's purchase of the
right to send e-mails to the Registered
Users List and Greenlight's participation in
any AutoTrader newsletter e-mails will count
toward the bonus traffic targets outlined in
Section 3.4.
2.5 Advertising on the AutoTrader Site. Beginning on
February 1, 2000 ("Phase I"), AutoTrader agrees to:
(a) provide a minimum of 1,400,000 impressions
of Greenlight Banner Advertisements on the AutoTrader Site per calendar month;
(b) use its commercially reasonable efforts to
display the Greenlight Banner Advertisement impressions evenly throughout the
month and throughout the day;
(c) use its commercially reasonable efforts to
display the Greenlight Banner Advertisements to users of the AutoTrader Site
located in the geographically targeted regions set forth in Exhibit C;
(d) place the Greenlight Banner Advertisements
in prominent areas of the AutoTrader Site to be determined by mutual agreement
between Greenlight and AutoTrader and aimed at communicating the services
provided by Greenlight;
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(e) use commercially reasonable efforts to
periodically review and adjust the placement of Greenlight Banner Advertisements
as necessary to improve the Click-Through rate; and
(f) monitor the number of Greenlight Banner
Advertisement Impressions, and provide written reports thereof, including number
of impressions and number of Click-Throughs, on a monthly basis.
2.6 Inclusion in Barter Queue. Beginning on February 1,
2000, Auto Trader agrees to include one Greenlight banner (468x60 pixels in
size) and one home page tile (88x31 pixels in size) in its excess inventory
barter queue, without charge to Greenlight. Impressions of these banners and
tiles are not included in the advertising impressions listed above, but
Click-Throughs will count toward AutoTrader's referral quantity bonus traffic
targets outlined in Section 3.4. These banners and tiles are intended to
generate approximately One (1) million impressions per month (based on November,
1999 traffic on the AutoTrader Site, but AutoTrader does not guarantee any
particular number of impressions.
3. Compensation & Guarantees for Greenlight Promotion on the
AutoTrader Site.
3.1 Slotting Fees.
(a) In consideration of AutoTrader's performance
of its obligations set forth in Section 2.1, Greenlight will pay AutoTrader a
slotting fee of Twenty-Five Thousand Dollars ($25,000) per month from the date
of Phase II implementation throughout the remainder of the Term. The slotting
fee shall be paid by Greenlight for each calendar month by the first day of the
following calendar month.
(b) In consideration of AutoTrader's performance
of its obligations set forth in Section 2.2 & 2.3, Greenlight will pay
AutoTrader a slotting fee of Fifteen Thousand Dollars ($15,000) per month
(separate from and in addition to the fee specified by Section 3.1(a), above)
from date of Phase II implementation throughout the remainder of the Term. The
slotting fee shall be paid by Greenlight for each calendar month by the first
day of the following calendar month.
(c) In connection with the fees set forth in
Sections 3.1(a) and (b) above, following the commencement of Phase II,
AutoTrader will guarantee 30,000 Click-Throughs per calendar month to the
Greenlight Site as a result of the Greenlight Links placed by AutoTrader on the
AutoTrader Site pursuant to Sections 2.1 and 2.2. In the event that AutoTrader
fails to deliver the number of Click-Throughs described in this Section 3.1(c)
during any month, then AutoTrader shall have the following calendar month to
make up the shortfall. For purposes of this Section 3.1(c), to "make up the
shortfall" means that AutoTrader shall have delivered 100% of the Click-Throughs
due for following calendar month, plus additional Click-Throughs in an amount
equal to the number of Click-Throughs which AutoTrader failed to deliver during
the preceding month in question. In the event that AutoTrader fails to make up
the shortfall, then AutoTrader shall subtract from Greenlight's monthly fees for
the next calendar month One Dollar and Sixty Cents ($1.60) for each
Click-Through in the shortfall. Both Greenlight and AutoTrader will track
numbers of Click-Throughs. Assuming Greenlight's and AutoTrader's numbers are
within 5% of each other, payments and counts shall be based on Greenlight's
numbers. If Greenlight's and AutoTrader's numbers are not within 5% of each
other, each party shall have 30 days to review its tracking methods and propose
new numbers. If at the end of 30 days the numbers still differ by more than 5%,
each party has the right to audit the other party's tracking methods and the
party found to be in error shall pay expenses for both audits. Parties will send
traffic reports for each calendar month by the 10th day of the following.
(d) For purposes of this Section 3.1, in the
event that Phase II commences on other than the first day of a calendar month,
or the Term of this Agreement ends on other than the last day of a calendar
month, the slotting fees and numbers of required Click-Throughs for any month
during which the applicable period of AutoTrader's performance is not a complete
calendar month shall be pro-rated based on the number of days in the applicable
period of performance during the month as compared to the number of days in the
calendar month.
3.2 Advertising Fees.
(a) In consideration for AutoTrader's performance of its
obligations set forth in Section 2.5, Greenlight agrees to pay AutoTrader an
advertising fee of Thirty-Five Thousand Dollars ($35,000) per month,
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starting at the launch of Phase I. In the event AutoTrader delivers less than
the guaranteed number of Greenlight impressions set forth in Section 2.5 for any
calendar month during the Term, then AutoTrader shall have the following
calendar month to make up the shortfall. For purposes of this Section 3.2, to
"make up the shortfall" means that AutoTrader shall have delivered 100% of the
Greenlight impressions due for such following calendar month, plus additional
Greenlight impressions in an amount equal to the number of Greenlight
impressions which AutoTrader failed to deliver during the preceding calendar
month in question. In the event that AutoTrader fails to make up the shortfall
in one month, then AutoTrader will provide two times the total shortfall amount
in the following month (in addition to the amounts set forth in this Agreement).
(b) For purposes of this Section 3.2, in the event that
the Term of this Agreement ends on other than the last day of a calendar month,
the advertising fee and guaranteed number of Greenlight impressions for such
final month shall be pro-rated based on the number of days in the applicable
period of performance during the month as compared to the number of days in the
final calendar month.
3.3 Referral Quality Bonus. Greenlight agrees to pay
AutoTrader a bonus of Five Thousand Dollars ($5,000) for every 100 vehicles it
sells to users initially reaching the Greenlight Site through any Click-Throughs
from the AutoTrader Site or AutoTrader e-mails or newsletters during any
calendar month. (e.g., if AutoTrader users buy between 100 and 199 vehicles from
Greenlight during a calendar month, Greenlight will pay a bonus of $5,000. If
AutoTrader users buy between 200 and 299 vehicles from Greenlight during a
calendar month, Greenlight will pay a bonus of $10,000. If AutoTrader users buy
between 300 and 399 vehicles from Greenlight during a calendar month, Greenlight
will pay a bonus of $15,000, and so on). The bonus for any given month will be
paid by Greenlight by the end of the following calendar month. Beginning as of
the commencement of Phase II, Greenlight shall take all appropriate measures to
track the identity of users initially reaching the Greenlight Site through
AutoTrader Click-Throughs and their purchases of vehicles, even if their
purchases of vehicles take place on subsequent sessions that do not originate
through AutoTrader Click-Throughs.
3.4 Referral Quantity Bonus. Separate from any payments
listed above in Sections 3.1, 3.2 and 3.3, Greenlight agrees to pay AutoTrader a
fee of Ten Thousand Dollars ($10,000) for any month in which more than 65,000
AutoTrader users reach Xxxxxxxxxx.xxx through AutoTrader site links, banners,
tiles, e-mail promotions or newsletters. The bonus for any given month will be
paid by Greenlight by the end of the following calendar month.
4. Promotion of the AutoTrader Site on the Greenlight site.
During the Term beginning as of the commencement of Phase II, Greenlight shall
maintain a web page on the Greenlight Site dedicated to customers interested in
purchasing used automobiles (the "Used Car Page"). This page shall include
contextual information about giving consumers the opportunity to buy a USED car
through Greenlight's partner, AutoTrader, as well as AutoTrader Brand Features
and AutoTrader Links.
5. Co-Marketing Program. Both parties agree to make good faith
efforts to discuss and develop additional co-marketing opportunities, subject to
agreement of the parties, and which may include, marketing programs in
television and other off-line media.
6. Other Responsibilities of the Parties.
6.1 Creation of New Car Page. AutoTrader shall be
responsible for the user interface and the placement of the Greenlight Links on
the AutoTrader Site in accordance with the terms of this Agreement. AutoTrader
agrees to show Greenlight a mock-up of the proposed "New Car Page" with the
appropriate Greenlight Brand Features and Greenlight Links in time to allow 2
weeks of edits and review prior to the launch of Phase II. AutoTrader agrees
that Greenlight may vary the Greenlight Links no more than twice per quarter,
unless otherwise agreed to in writing by AutoTrader. Greenlight shall provide
AutoTrader all URLs, URL formats (as applicable), content, branding and other
materials necessary for AutoTrader to provide the Greenlight Links on the
applicable pages.
6.2 Creation of Jump Pages. Greenlight is responsible for
creating the Greenlight Jump Page which shall contain a return link to
AutoTrader in a manner (size & placement) reasonably acceptable to AutoTrader
for consumers who reach Greenlight through a Greenlight Link provided in
connection with Phase II and Phase III implementation on the AutoTrader site.
The Greenlight Jump Page will also include AutoTrader Brand Features to the
extent permissible in connection with Greenlight's other contractual
obligations. Approximately 30 days prior to the launch of Phase II. AutoTrader
shall provide to Greenlight
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all URLs, URL formats (as applicable), content, branding and other materials
necessary for Greenlight to create the Greenlight Jump Page. Greenlight shall
secure AutoTrader's consent to the design and content of the Greenlight Jump
Page before implementation, such consent not to be unreasonably withheld or
delayed. AutoTrader is responsible for creating the AutoTrader Jump Page
containing a return link to Greenlight for consumers who reach AutoTrader
through an AutoTrader Link on the Used Car Page and the Trade-In Page of the
Greenlight site. As soon as possible after the Effective Date of this Agreement,
Greenlight shall provide to AutoTrader all URLs, URL formats (as applicable),
content, branding and other materials necessary for AutoTrader to create the
co-branded AutoTrader Jump Page. AutoTrader shall secure Greenlight's consent to
the design and content of the AutoTrader Jump Page before implementation, such
consent not to be unreasonably withheld or delayed.
6.3 Creation of Used Car Page and Trade In Page.
Greenlight shall be responsible for the user interface and the placement of the
AutoTrader Links on the Greenlight Site in accordance with the terms of this
Agreement. Greenlight shall secure AutoTrader's consent to the design and
content of the Used Car Page before launch, such consent not to be unreasonably
withheld or delayed. Greenlight agrees to show AutoTrader a mock-up of the
proposed "Used Car Page" with the appropriate AutoTrader Brand Features and
AutoTrader Links in time to allow 2 weeks of review and edits prior to the
launch of the Used Car Page. Greenlight will be building a Trade In Page on its
website to be deployed no later than the launch of Phase II of this contract.
This Trade-In page will include AutoTrader as a partner and will include a link
to the AutoTrader site, Greenlight agrees to show Autotrader a mock-up of the
proposed "Trade In Page" with the appropriate AutoTrader Links in time to allow
2 weeks of review and edits prior to the launch of the Trade In Page. AutoTrader
shall promptly provide Greenlight all URLs, URL formats (as applicable),
content, and other materials necessary for Greenlight to provide the AutoTrader
Links on the applicable pages.
6.4 Greenlight Grant of License. Greenlight hereby grants
to AutoTrader a non-exclusive, worldwide, fully paid license to use, reproduce
and display the Greenlight Brand Features, contextual and new car information
provided by Greenlight and advertising copy provided by Greenlight solely for
the purposes and on the pages of the AutoTrader Site, and in applicable e-mails
and newsletters to the Registered Users List, as described in this Agreement.
Greenlight shall have the right to review and approve or disapprove of any use
by AutoTrader of Greenlight Brand Features and, in the event that Greenlight
disapproves any such use, Greenlight may revoke the license granted by this
Section 6.5 with respect to that use.
6.5 AutoTrader Grant of License. AutoTrader hereby grants
to Greenlight a non-exclusive, worldwide, fully paid license to use, reproduce
and display the AutoTrader Brand Features solely for the purposes and on the
pages of the Greenlight Site, as described in this Agreement. AutoTrader shall
have the right to review and approve or disapprove of any use by Greenlight of
AutoTrader Brand Features and, in the event that AutoTrader disapproves any such
use, AutoTrader may revoke the license granted by this Section 6.5 with respect
to that use.
6.6 Notice of Unauthorized Uses. Each party agrees to
promptly notify the other party of any unauthorized use of the other party's
Brand Features of which it has actual knowledge. Each party shall have the sole
right and discretion to bring proceedings alleging infringement of its Brand
Features or unfair competition related thereto; provided, however, that each
party agrees to provide the other party with its reasonable cooperation and
assistance with respect to any such infringement proceedings, at the other
party's expense.
6.7 Ownership Rights. As between the parties, each party
or its licensors and third party information and content providers retains all
rights, title and interest in and to all of the information, content, data,
designs, materials and all copyrights, patent rights, trademark rights and other
proprietary rights thereto (collectively, "Intellectual Property") provided by
it pursuant to this Agreement and in and to its web site(s) (except for the
Intellectual Property of the other party contained therein). Except as expressly
provided herein, no other right or license with respect to any copyrights,
patent rights, trademark rights or other proprietary rights is granted under
this Agreement. All rights not expressly granted hereunder by a party are
expressly reserved to such party and its licensor and information and content
providers.
6.8 Exclusivity. AutoTrader agrees that it will not enter
into any agreement with a Greenlight Competitor that would result in any
promotion during the Term of such Greenlight Competitor on the AutoTrader Site,
including any advertising or other links to such Greenlight Competitor on the
AutoTrader Site.
7. Termination.
7.1 Term. Unless terminated as set forth herein, this
Agreement shall commence on the Effective Date and remain in effect until the
expiration of the Term, 12 months following launch of Phase III of the
Greenlight links on the AutoTrader site. This period of time will be known as
the Initial Term. This Agreement will
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automatically renew on a month to month basis after the Initial Term unless
either Party provides a 60 day termination notice in writing to the other party.
7.2 Termination by Either Party with Cause. If either
party is in material breach of the terms of this Agreement, the Agreement may be
terminated with 30 days notice if the party in breach does not remedy the breach
within 30 days of receiving written notice from the other party detailing the
specific breach. This Agreement may also be terminated immediately by either
party upon written notice to the other party if the other party: (a) becomes
insolvent; (b) files a petition in bankruptcy; or (c) makes an assignment for
the benefit of its creditors.
7.3 Survival. The provisions of Sections 6.7, 8.1, 8.3,
8.4, 9.1, 9.2, 10, and 11.1, as well as any payment obligations under Section 3
arising during the Term but payable thereafter, shall survive expiration or
termination of this Agreement.
8. Confidential Information and Publicity.
8.1 Terms and Conditions. The terms and conditions of
this Agreement shall be considered confidential and shall not be disclosed to
any third parties except to such party's accountants or attorneys.
Notwithstanding the foregoing, either party may make disclosures required by law
without the consent of the other party and in such event, prompt notice thereof
shall be provided to the other party. Neither party shall make any public
announcement regarding the existence of this Agreement without the other party's
prior written approval and consent.
8.2 Publicity. AutoTrader and Greenlight shall issue a
joint press release regarding this Agreement that is approved by both parties
prior to distribution to the media.
8.3 Nondisclosure. AutoTrader and Greenlight have
previously entered into a Mutual Nondisclosure Agreement, dated January 14,
2000, and expressly acknowledge that such Mutual Nondisclosure Agreement remains
in full force and effect in accordance with its terms during the term of this
Agreement.
8.4 User Information. All information and data provided
to AutoTrader by users of the AutoTrader Site or otherwise collected by
AutoTrader relating to user activity on the AutoTrader Site shall be retained by
and owned solely by AutoTrader. All information and data provided to Greenlight
by users of the Greenlight Site or otherwise collected by Greenlight relating to
user activity on the Greenlight Site shall be retained by and owned solely by
Greenlight. Each party agrees to adopt and comply with an appropriate privacy
policy for its respective web site. In addition, each party shall use such
information obtained by users originating on the web site of the other party
only as authorized by the user and shall not disclose, sell, license or
otherwise transfer any such user information to any third party or use such user
information for the transmission of "junk mail", "spam", or any other
unsolicited mass distribution of information.
9. Representations and Warranties/Indemnification.
9.1 By Greenlight: Greenlight represents and warrants
that (i) it has the right, power and authority to enter into this Agreement and
to perform all of its obligations hereunder; (ii) it has the right to grant to
licenses granted by it hereunder; (iii) it has all rights necessary to create
and/or host the Greenlight Site and display the content thereof to users; and
(iv) no Greenlight Brand Feature, material, product, information, data or
service produced, distributed, offered or provided by Greenlight, including,
without limitation, the online sale of new automobiles, or any material
presented on any site on the Internet produced, maintained, or published by
Greenlight, will infringe in any manner any copyright, patent, trademark, trade
secret or any other intellectual property right of any third party, will be or
contain any material or information that is obscene, defamatory, libelous,
slanderous, or that violates any law or regulation, will be negligently
performed, or will otherwise violate or breach any duty toward, or rights of any
person or entity, including, without limitation, rights of publicity, privacy or
personality, or will otherwise result in any consumer fraud, product liability,
tort, breach of contract, injury, damage or harm of any kind to any person or
entity. Greenlight, at its own expense, will indemnify, defend and hold harmless
AutoTrader and its employees, representatives, agents and affiliates, against
any claim, suit, action, or other proceeding brought against AutoTrader based on
or arising from a claim that is based on or would constitute a breach of any of
the foregoing warranties; provided, however, that in any such case: (a)
AutoTrader provides Greenlight with prompt
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notice of any such claim and (b) AutoTrader permits Greenlight to assume and
control the defense of such action upon Greenlight's written acknowledgment of
the obligation to indemnify. Greenlight will not enter into any settlement or
compromise of any such claim without AutoTrader's prior written consent, which
shall not be unreasonably withheld. Greenlight will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable attorneys' fees
and costs awarded against or otherwise incurred by AutoTrader in connection with
or arising from any such claim, suit, action or proceeding.
9.2 By AutoTrader: AutoTrader represents and warrants
that (i) it has the right, power and authority to enter into this Agreement and
to perform all of its obligations hereunder; (ii) it has the right to grant to
licenses granted by it hereunder; (iii) it has all rights necessary to create
and/or host the AutoTrader Site and display the content thereof to users; and
(iv) no AutoTrader Brand Feature, material, product, information, data or
service produced, distributed, offered or provided by AutoTrader, including,
without limitation, the provision of online information about or sale of used
automobiles, or any material presented on any site on the Internet produced,
maintained, or published by AutoTrader, will infringe in any manner any
copyright, patent, trademark, trade secret or any other intellectual property
right of any third party, will be or contain any material or information that is
obscene, defamatory, libelous, slanderous, or that violates any law or
regulation, will be negligently performed, or will otherwise violate or breach
any duty toward, or rights of any person or entity, including, without
limitation, rights of publicity, privacy or personality, or will otherwise
result in any consumer fraud, product liability, tort, breach of contract,
injury, damage or harm of any kind to any person or entity. AutoTrader, at its
own expense, will indemnify, defend and hold harmless Greenlight and its
employees, representatives, agents and affiliates, against any claim, suit,
action, or other proceeding brought against Greenlight based on or arising from
a claim that is based on or would constitute a breach of any of the foregoing
warranties; provided, however, that in any such case: (a) Greenlight provides
AutoTrader with prompt notice of any such claim and (b) Greenlight permits
AutoTrader to assume and control the defense of such action upon AutoTrader's
written acknowledgment of the obligation to indemnify. AutoTrader will not enter
into any settlement or compromise of any such claim without Greenlight's prior
written consent, which shall not be unreasonably withheld. AutoTrader will pay
any and all costs, damages, and expenses, including, but not limited to,
reasonable attorneys' fees and costs awarded against or otherwise incurred by
Greenlight in connection with or arising from any such claim, suit, action or
proceeding.
10. Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 9,
UNDER NO CIRCUMSTANCES SHALL GREENLIGHT, AUTOTRADER, OR ANY OF THEIR RESPECTIVE
AFFILIATES BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
11. General Provisions.
11.1 Independent Contractors. It is the intention of
AutoTrader and Greenlight that AutoTrader and Greenlight are, and shall be
deemed to be, independent contractors with respect to the subject matter of this
Agreement, and nothing contained in this Agreement shall be deemed or construed
in any manner whatsoever as creating any partnership, joint venture, employment,
agency, fiduciary or other similar relationship between AutoTrader and
Greenlight.
11.2 Entire Agreement. This Agreement, together with all
Exhibits, represents the entire agreement between AutoTrader and Greenlight with
respect to the subject matter hereof and thereof and shall supersede all prior
agreements and communications of the parties, oral or written, between
AutoTrader and Greenlight, except for the Mutual Nondisclosure Agreement
referenced in Section 8.3, above, which shall continue as specified in Section
8.3.
11.3 Amendment and Waiver. No amendment to, or waiver of,
any provision of this Agreement shall be effective unless in writing and signed
by both parties. The waiver by any party of any breach or default shall not
constitute a waiver of any different or subsequent breach or default.
11.4 Governing Law. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of California without
regard to the conflicts of laws principles thereof.
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9
11.5 Successors and Assigns. Neither party shall assign
its rights or obligations under this Agreement without the prior written consent
of the other party, which shall not unreasonably be withheld, conditioned or
delayed. Notwithstanding the foregoing, either party may assign this Agreement
to any Affiliate of that party, or to an entity who acquires substantially all
of the stock or assets of that party; provided that consent will be required in
the event that the non-assigning party reasonably determines that the assignee
will not have sufficient capital or assets to perform its obligations hereunder.
For purposes of this Agreement, "Affiliate" means any person or entity that
controls, is controlled by or under common control with a party. All terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted transferees, successors and
assigns.
11.6 Force Majeure. Neither party shall be liable for
failure to perform or delay in performing any obligation under this Agreement
(other than an obligation to make payment of any monies) if such failure or
delay is due to fire, flood, earthquake, strike, war (declared or undeclared),
embargo, blockade, legal prohibition, governmental action, riot, insurrection,
damage, destruction or any other similar cause, not existing as of the date of
this Agreement, beyond the control of such party; provided, that the affected
party shall promptly notify the other party of the occurrence of the event of
force majeure and take all reasonable steps to necessary to resume performance
of it obligations so interfered with.
11.7 Notices. All notices, requests and other
communications called for by this Agreement shall be deemed to have been given
immediately if made by telecopy or electronic mail (confirmed by concurrent
written notice sent via overnight courier for delivery by the next business
day), if to AutoTrader at the physical and electronic mail addresses set forth
on the signature page of this Agreement, and if to Greenlight at the physical
and electronic mail addresses set forth on the signature page of this Agreement,
or to such other addresses as either party shall specify to the other. Notice by
any other means shall be deemed made when actually received by the party to
which notice is provided.
11.8 Severability. If any provision of this Agreement is
held to be invalid, illegal or unenforceable for any reason, such provision
shall be deemed restated, in accordance with applicable law, to reflect as
nearly as possible the original intentions of the parties, and the remainder of
the Agreement shall be in full force and effect.
11.9 Sole Responsibility/Operation of Sites. Greenlight
will remain solely responsible for the operation of the Greenlight Site, and
AutoTrader will remain solely responsible for the operation of the AutoTrader
Site. Subject to the terms of this Agreement, each party retains sole right and
control over the programming, content and conduct of transactions over its
respective Internet-based service. Each party shall provide or arrange for
facilities, including communications links, sufficient to provide responsive
access to its web site, the proper functioning of which shall be monitored 24
hours per day, every day, with the goal of achieving the highest level of
reliability taking into account reasonable scheduled downtime for periodic
maintenance and upgrades. Each party shall also provide or arrange for the
provision of service, support and maintenance on hardware and software utilized
in the operation of its web site, such support to be by technical support
personnel proficient in the operation and maintenance of such hardware and
software and who shall be available or on call 24 hours per day, every day. Each
party acknowledges, however, that neither party can guarantee uninterrupted
availability of its web site, and that the Greenlight Site and the AutoTrader
Site may be subject to temporary shutdowns due to causes beyond the operating
party's reasonable control.
11.10 Counterparts. This Agreement may be executed in two
counterparts, both of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by facsimile
transmission.
11.11 Authority. Each of AutoTrader and Greenlight
represents and warrants that the negotiation and entry of this Agreement will
not violate, conflict with, interfere with, result in a breach of, or constitute
a default under any other agreement to which they are a party.
11.12 Attorneys' Fees. The prevailing party in any action
to enforce this Agreement shall be entitled to reimbursement of its expenses,
including reasonable attorneys' fees.
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This Web Advertising and Promotion Agreement has been executed by the
duly authorized representatives of the parties, effective as of the Effective
Date.
AUTOTRADER XXXXXXXXXX.XXX
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------- ------------------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Vice President, National Accounts Vice President of Marketing
Address: 0000 Xxxxxxxxx Xxxxxxxx Xxxx Address: 00 Xxxxx Xxxx, Xxxxx 000
Xxxxx X-000 San Mateo, California 94402
Xxxxxxx, XX 00000
Tel.: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
email: xxxx.xxxxxxx@XxxxXxxxxx.xxx email: xxxxxx@xxxxxxxxxx.xxx
[SIGNATURE PAGE TO WEB ADVERTISING AND PROMOTION AGREEMENT]
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EXHIBIT A
The following list is meant to exemplify OEM's to whom AutoTrader reserves the
right to continue selling advertising and/or partnerships to during the term of
the agreement. The list also implicitly includes any divisions or subsidiaries
of the OEMs listed. This list may be revised upon mutual agreement by AutoTrader
and Greenlight during the term.
XX
Xxxx
Daimler-Chrysler
Honda
Toyota
Nissan
Mazda
Mitsubishi
Subaru
Suzuki
Hyundai
Daewoo
Kia
Daihatsu
Audi
BMW
Volkswagon
Porsche
Rolls-Xxxxx
Xxxxxxx
Volvo
Saab
Peugeot
Lambourghini
Ferrari
Fiat
Alfa Romeo
Lotus
Exhibit B - List of Greenlight Competitors
- For the purposes of offering exclusivity to Greenlight, a Greenlight
Competitor is defined as companies selling new cars via the web. This
list may be revised upon mutual agreement by AutoTrader and Greenlight
during the term. Examples include:
XxxxXxxxxx.xxx
XxxXxxxx.xxx
Xxxxxxxx.xxx
Invoice Dealers
AutonationDirect
Autoweb
CarPoint
Auto-By-Tel
CarPrices
A-1
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EXHIBIT C
Schedule of geographically targeted areas by month:
February, 2000: Greensboro, Atlanta, Orlando, Jacksonville, San Diego,
Tampa, Portland
March, 2000: To be Provided no later than February 15.
EXHIBIT D (area in Red Outline is defined as space dedicated to New Car
Information, sec. 2.1a)
[SCREEN SHOT OF NEW CAR INFORMATION]
EXHIBIT E (Area in Green outline intended to represent the Liner Ad Substitute
panel described in Section 2.3)
[SCREEN SHOT OF LINER ADVERTISEMENT]
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