EXHIBIT 10.11
MARKETING AGREEMENT
This Agreement is made as of February 8, 1996, by and between Auto-By-Tel,
LLC, a California limited liability company with its principal place of business
at 2711 E. Coast Highway, Suite 203, Corona Del Mar, California 92625 (hereafter
"ABT") and Edmund Publications Corp., a New York Corporation with its principal
place of business at 300 N. Sepulveda Blvd., Suite 2050, El Segundo, California
90245 (hereafter "Edmund's").
RECITALS
WHEREAS, ABT is in the business of providing new vehicle purchase and lease
requests and other information to dealers of new automobiles and trucks;
WHEREAS, ABT obtains information for use by dealers of new automobiles and
trucks through Consumer inquiries on the Internet, Online services and other
sources;
WHEREAS, Edmund's is in the business of providing Consumers information to
aid them in their purchase or lease of new automobiles and trucks;
WHEREAS, Edmund's provides such information in print publications, on the
Internet and through other sources;
WHEREAS, ABT and Edmund's desire to enter into an agreement whereby
Edmund's will provide marketing information to ABT.
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the parties agree as follows:
A. Definitions
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1. "Edmund's Site" shall mean that information and text reflected on the
Internet, and other online sources established by Edmund's for the purpose of
providing information to aid Consumers in their purchase or lease of new cars
and trucks. Despite the use of the singular "Site", "Edmund's Site" shall refer
to all Internet and online services used by Edmund's as of the date of this
Agreement and thereafter. However, "Edmund's Site" shall not include any
Internet or other online source established by a third party under license from
Edmund's.
2. "Consumer" shall mean those persons who use or otherwise obtain
information from "Edmund's Site."
3. "ABT Purchase Request" shall mean a request by a Consumer for
assistance with the purchase or lease of a new automobile or truck from whatever
source.
[*] Confidential Treatment has been requested for certain portions of this
exhibit
B. Consumer Request for the Purchase or Lease of Automobiles and Trucks
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1. Term of Agreement
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This agreement shall be deemed to have commenced on January 1, 1996
and shall expire on [*] provided, however, that if Edmund's does
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not receive from ABT in calendar year 1997 aggregate fees (including the amounts
referred to in Section C hereof and any additional amounts voluntarily paid by
ABT) of at least [*] Edmund's may terminate this Agreement on not less than [*]
given to ABT on or before [*]. This Agreement may be terminated prior to such
dates only (i) by Edmund's in the event that ABT does not pay the fees due
Edmund's for ABT Purchase Requests originated by Edmund's within 30 days of the
date billed for such ABT Purchase Requests, in the event that ABT does not pay
the amounts required by Section C hereof within [*]of ABT's receipt of such
origination fees, or in the event ABT breaches any of the other terms of this
Agreement, and (ii) by ABT in the event that Edmund's breaches any of the terms
of this Agreement, or if Edmund's terminates the "Edmund's Site." Nothing herein
shall preclude Edmund's from discontinuing the "Edmund's Site," any of its
publications, or its entire business, or shall give ABT any rights against
Edmund's hereunder as a result of any such discontinuation.
2. Pricing Information
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The "Edmund's Site" shall, so long as it is maintained by Edmund's,
reflect pricing information in the United States for the sale of automobiles and
trucks which is current and accurate.
3. ABT Information
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Edmund's shall recommend ABT on the "Edmund's Site" as a dealer-based
purchasing/leasing program for new automobiles and trucks. This recommendation
shall be approved as to form and content by ABT, such approval not to be
unreasonably withheld. This recommendation shall be exclusive and Edmund's
shall not recommend any dealers (sellers/lessors) of automobiles and trucks or
other marketing programs for automobiles and trucks of like nature to ABT,
except with the written consent of ABT. (By way of example, Edmund's may
recommend or refer Consumers directly to automobile and truck manufacturers,
since manufacturers do not offer a marketing program which is "of like nature"
to ABT's marketing program. Edmund's shall mirror ABT's Internet Form on
Edmund's Internet Site (or other like text and graphics approved by ABT).
Edmund's and ABT shall work together to develop and maintain a file transfer
process where both parties can determine whether the ABT Purchase Requests have
been originated by Edmund's.
4. Fees to be Paid to Edmund's
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a. ABT shall pay Edmund's [*] which is received directly from
Edmund's either from the "Edmund's Site" [*] [*] in any calendar year, ABT shall
pay Edmund's [*]. However, for purposes of
[*] Confidential Treatment Requested
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calculating the amount of fees to be paid to Edmund's, [*]
b. ABT shall pay Edmund's any fees due it pursuant to this paragraph
within 30 days of receipt of billing.
c. All ABT Purchase Requests and information contained therein
received from Edmund's Site shall be the sole property of ABT.
5. Additional Advertisements
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In its print publications and CD ROM products, Edmund's shall
advertise ABT's services in a form and content approved by ABT. In these
advertisements, Edmund's shall be permitted to place Edmund's' address for the
"Edmund's Site."
C. Financing of Automobiles
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1. Edmund's shall recommend an entity later identified by ABT for
automobile and truck financing as ABT's source of automobile and truck financing
in a form and content approved by ABT, provided that this financing program is
in full operation within [*] of the signing of this Agreement.
2. ABT shall pay Edmund's [*] which it received as a result of [*]
D. Non-competition and Confidentiality
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1. Confidentiality
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Edmund's agrees to keep confidential and not disclose to any third
party, without ABT's prior written consent, any confidential or proprietary
information in its possession with respect to ABT's services. Edmund's will give
notice of such covenant to its employees and require its employees to comply
with such covenant. Such covenant shall not apply to any such information that
is or becomes generally available to third parties other than as a result of its
disclosure by Edmund's or its employees, which was available to Edmund's prior
to its disclosure to Edmund's by ABT, or which is made available to Edmund's by
a source other than ABT and its representatives. If Edmund's is requested to
produce any of such confidential or proprietary information by order of any
governmental agency, court or civil process, Edmund's may, upon less than five
days' written notice to ABT, release such information.
[*] Confidential Treatment Requested
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2. Non-Competition
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For the term of this Agreement and for [*] following the termination
of this Agreement pursuant to paragraph A.1., neither Edmund's nor its
subsidiaries or affiliates or their respective directors, officers, employees or
agents shall directly engage in the business of providing new vehicle purchase
and lease requests to dealers of new automobiles and trucks. However, following
such termination of this Agreement Edmund's shall be entitled to refer Consumers
to other third parties who, like ABT, are engaged in such business, and
following such termination Edmund's shall be entitled to advertise other
automotive broker services.
3. Indemnification
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Edmund's agrees to indemnify and hold harmless ABT and its
subsidiaries and affiliates and their respective directors, members, managers,
officers, employees and agents against any and all losses, liabilities, claims,
awards, damages, judgments, settlements and costs, (including attorneys' fees
and expenses) arising out of or relating to any third party claim arising from
the negligent or wrongful acts or omissions of Edmund's, its subsidiaries and
affiliates, and their respective directors, officers, employees and agents.
ABT agrees to indemnify and hold harmless Edmund's and its
subsidiaries and affiliates and their respective directors, officers, employees
and agents against any and all losses, liabilities, claims, awards, damages,
judgments, settlements and costs, (including attorneys' fees and expenses)
arising out of or relating to any third party claim arising from the negligent
or wrongful acts or omissions of ABT, its subsidiaries and affiliates, and their
respective directors, members, managers, officers, employees and agents. In
addition, ABT hereby assigns to Edmund's any benefits of any indemnification or
similar agreement or arrangement that ABT has received, or hereafter receives,
from third parties with whom ABT does business (such as dealers), to the extent
that such indemnification does not compromise ABT's rights of indemnification
from such third parties.
4. Trade Marks and Service Marks
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Any and all trade marks and service marks associated with ABT are and
shall remain the exclusive property of ABT. If during the term of this Agreement
a trade mark registration is filed by ABT, all rights belong to ABT who shall
bear the cost of such registration. Edmund's is permitted to use the trade mark
and service mark of ABT only as set forth herein or only as authorized in
writing by ABT.
E. Miscellaneous
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1. Independent Parties
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The relationship between ABT and Edmund's is, and at all times shall
remain, solely that of independent parties, and shall not be, or construed to be
a joint venture, partnership, fiduciary, or other relationship of any nature.
[*] Confidential Treatment Requested
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2. Notices
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All notices and requests in connection with this Agreement shall be
given or made upon the respective parties in writing, and shall be deemed as
given of the day it is deposited in the U.S. Mail, postage prepaid, certified or
registered, return receipt requested, and addressed as designated at the top of
this Agreement, or such address as the party to receive the notice or request so
designates by written notice to the other.
3. Headings
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The titles and captions of the various paragraphs and sub paragraphs
of this Agreement are inserted for convenience only, and are not a part of this
Agreement, nor shall they be deemed in any manner to modify, explain, enlarge or
restrict any of the provisions of this Agreement.
4. Severability
------------
The invalidity of any of the provisions or clauses in this Agreement
shall not affect any remaining provisions, clauses, or applications which can be
given effect without the invalid provision or clause. To this end, the
provisions, of this Agreement are declared to be severable.
5. Waivers
-------
A waiver of either party to exercise in any respect any right provided
for herein, including the termination of this Agreement, shall not be deemed a
waiver of any right hereunder.
6. 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, shall be brought in a court of
competent jurisdiction located in the State of California and the parties hereto
agree to jurisdiction in California.
7. Attorney's Fees
---------------
In the event any litigation is initiated by any of the parties to
enforce any of the provisions of this Agreement, the prevailing party shall be
entitled to receive from the other party its reasonable attorney's fees incurred
in such litigation.
8. Entire Agreement
----------------
This Agreement may be modified, amended or waived in any respect only
by a written instrument signed by all the parties hereof. This Agreement
supersedes any and all agreements, either oral or written, between the parties
and contains all of the representations, covenants, and agreements between the
parties hereto. Each party to this Agreement acknowledges that no
representations,
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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 that neither party enters this Agreement in reliance upon a later
agreement regarding an ABT Associated Financing Program.
9. Authority
---------
The parties hereto have authorized the signatories identified below to
enter this Agreement on behalf of Edmund's and ABT, respectively.
EDMUND PUBLICATIONS CORP. AUTO-BY-TEL, LLC
a New York Corporation a California limited liability company
By:__________________________________ By:___________________________________
Title:_______________________________ Title:________________________________
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