Mercedez Benz Dealership Service Agreement
THIS FLEET BILLING SERVICES AGREEMENT (this “Agreement” is made as of the date of signature below “Execution Date”), by and between Sound Billing, LLC, a Wisconsin limited liability company (“SB”) having its principal place of business at 7447 University Avenue Suite 201, Middleton, WI 53562, and the undersigned Client, having its principal place of business at the address shown below. Either SB or Client may be referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, Client, an authorized Mercedes-Benz dealership that, among other commercial activities, operates service and aftersales operations from a Mercedes-Benz authorized service and parts facility, desires to engage the services of SB to furnish billing services for Client’s fleet accounts for vans (but not passenger cars); and
WHEREAS, the parties desire to set forth their agreement whereby SB will provide billing services during the term of this Agreement as defined herein.
NOW, THEREFORE, in consideration of the premises and mutual promises contained herein, the parties hereto agree as follows:
1. Services. For the benefit of the Client, SB agrees to provide billing services to those fleet customers of the Client that have been mutually agreed upon and approved by Client and by SB (“Fleet Customer”). SB shall establish an account for each Fleet Customer of the Client (“Account”). SB will send monthly statements to all Accounts for which work has been performed on the fleet vehicles of the approved Fleet Customer. During the Term of this Agreement SB will remit to Client, on a weekly basis, available funds received by SB from the Accounts of Fleet Customers, less the Service Fee and other Adjustments such as credit card fees, discounts and other adjustments which will be reflected on the amounts submitted by SB to Client. SB will invoice all Accounts for past due amounts. SB makes no representations or warranties as to the ability of SB to collect amounts due from the Accounts of Fleet Customers of Client. The billing services are further described on the process flow map attached to this Agreement as Exhibit A.
2. Service Fee. Client agrees to pay to SB 2.20% of the original invoice amount (the “Service Fee”). The Service Fee shall not change during the initial Term of this Agreement. For any extension period after the initial Term of the Agreement, SB may adjust the Service Fee to be charged to the Client by providing written notice of any adjustment in the Service Fee at least sixty (60) days prior to the expiration of the then current term.
3. Acknowledgement of Client. Client agrees: (A) to provide to SB the name, contact information billing address, and negotiated terms for each Fleet Customer which is the subject of this Agreement, (B) Client acknowledges that SB will obtain information for all billing services described herein from Auto Integrate’s data feed which is necessary for the invoicing of services provided by Client to Fleet Customer.
4. Term. The Agreement shall remain in force for an initial term of three (3) years from the Effective Date. Each extension period shall be subject to the same terms and conditions as those applicable to the initial term, except for any change in the Service Fee by SB. Neither party shall be permitted to terminate this Agreement for a period of twelve (12) months from the Effective Date, unless the other party has committed a material breach. After the initial twelve (12) month period, either party may terminate this Agreement with or without cause with thirty (30) days written notice to the other party. Notwithstanding the foregoing, if the related agreement between Mercedes-Benz USA, LLC (“MBUSA”) and SB and/or the related agreement between MBUSA and OEConnection, LLC (“OEC”) should be terminated for any reason, then this Agreement shall terminate at the same time as the termination of MBUSA’s related agreement(s) with SB and/or OEC.
5. Confidentiality. As used herein, “Confidential Information” means, as to any Party: (a) any information, actual or planned, relating to the research, development, products, trade secrets, technology, technology architecture, business models, plans or processes, marketing plans, customers, finances, business affairs, or personnel of that Party or any of its affiliates, including any such information that the other Party may have created in the course of its performance under this Agreement; (b) any information belonging or relating to that Party’s information provider or affiliate; (c) any specifications listed in any statement of work; and (d) any additional information identified as “Additional Confidential Information” in writing by either Party; provided, however, that “Confidential Information” shall not include any information that the Recipient can demonstrate: (e) was lawfully obtained by Recipient from a third party who had the right to disclose it to Recipient; (f) was publicly known prior to the Effective Date or subsequently becomes publicly known through no violation of Recipient’s confidentiality obligations under this Agreement; or (g) was developed independently by Recipient without the use of any Confidential Information. In performing its obligations under this Agreement, each Party (the “Recipient”) may gain access to the Confidential Information of the other Party (the “Discloser”). Recipient shall keep confidential and shall not disclose or use any of Discloser’s Confidential Information for any purpose other than to perform its obligations under this Agreement. Recipient shall use reasonable care to protect and avoid disclosure of and unauthorized access to Discloser’s Confidential Information in Recipient’s possession or control, which level of care shall, at a minimum, not fall below the level of care that Recipient uses to protect and avoid disclosure of and unauthorized access to its own similar information. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information: (i) to Recipient’s employees, affiliates, subcontractors, and financial and legal advisors; provided, however, that such disclosure must be necessary to carry out Recipient’s obligations under this Agreement and that, prior to such disclosure, Recipient must have a written agreement with such party sufficient to require that party to treat the Confidential Information substantially the same as described in this Agreement; (ii) to any other person or entity with Discloser’s prior written consent; or (iii) as is necessary to comply with a judicial or governmental order; provided, however, that, to the extent possible, Recipient shall promptly give Discloser notice of such disclosure obligation to allow Discloser a reasonable opportunity to obtain a protective order or other appropriate relief preventing such disclosure. In addition, SB may disclose Client’s Confidential Information to MBUSA and OEC in conjunction with the billing services described in this Agreement. All Confidential Information shall remain the property of Discloser or Discloser’s affiliate or information provider (as applicable), and Recipient receives no license or other rights thereto. Without limiting the foregoing, Discloser or Discloser’s affiliate or information provider (as applicable) owns all right, title, and interest in any of its Confidential Information, including any and all copyrights, patents, trade secrets, trademarks, trade dress, and any and all moral rights in the Confidential Information. Promptly upon expiration or termination of this Agreement, or at any time earlier upon the written request of Discloser, Recipient shall, at its sole cost and as directed by Discloser, return, or destroy any or all of Discloser’s Confidential Information (including copies thereof) and provide written confirmation of the same to Discloser. ALL INFORMATION PROVIDED BY CLIENT TO SB IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING ITS ACCURACY OR PERFORMANCE. The Parties acknowledge that any breach of the provisions of this section will result in irreparable harm to the non-breaching Party. The Parties therefore agree that the non-breaching Party shall have the right to seek an injunction or other equitable relief to enforce compliance with the provisions of this section, without limitation to any other right or remedy that may be available to the non-breaching Party under this Agreement or at law or in equity.
6. Warranties and Representations of SB. SB warrants and represents that SB is registered within the State of Wisconsin, as required by Wisconsin Statutes and thereby is licensed to operate within the state of Wisconsin by the Wisconsin Department of Financial Institutions SB is subject to periodic audits of its operations and records by representatives of the Wisconsin Department of Financial Institutions. In addition to any periodic audits conducted by the Wisconsin Department of Financial Institutions, SB is required to maintain a surety bond within the parameters identified by the Wisconsin Department of Financial Institutions on its accounts to protect any and all third parties. SB further warrants and represents that all funds relevant to the billing services of SB identified in this Agreement shall be held in, and distributed from, appropriate trust accounts, that such funds shall be segregated from all other funds of SB and that such accounts are and will remain valid trust accounts under applicable law.
7. Compliance. In connection with the activities of the Parties related to this Agreement, SB is obliged to desist from all practices which may lead to penal liability due to fraud or embezzlement, insolvency crimes, crimes in violation of competition, guaranteeing advantages, bribery, acceptance of bribes or other corruption crimes on the part of persons employed by SB or other third parties. In the event of violation of the above, Client has the right to immediately withdraw from or terminate all legal transactions existing with SB and the right to cancel all negotiations. The above notwithstanding, SB is obliged to adhere to all laws and regulations applicable to both itself and the commercial relationship with Client.
8. Communications. SB hereby agrees that it will not take any of the following actions with respect to the execution of the Agreement or the provisions of the services hereby without first obtaining express written consent from the Client including, but not limited to, the following: 1) issuing a press release; 2) providing written or verbal commentary to the media; 3) making an external speech or taking other publicity-related activities including postings on any public forum relating to or which mentions Client or the services provided hereunder.
9. Trademarks. SB acknowledges and agrees that the words "Mercedes Benz," "Mercedes," “Sprinter,” and “Smart” and the Three-Pointed Star within a Circle, the Sprinter logo and the Smart logo are the solely owned and validly registered trademarks and trade names of Daimler AG – Daimler Aktiengesellschaft. Pursuant to the execution of this Agreement, SB does not secure any rights or licenses to said words, terms or intellectual property. However, Client acknowledges that in the billing submitted by SB, on behalf of Client, that some, or all, of the identified words, terms or intellectual property may be used to properly reflect that the billing is made on behalf of the Client providing the services, as described in Section 1 above, to the Client’s fleet customers. Client acknowledges that the bills, when submitted by SB on behalf of the Client, will be in the name of the Client which may name, or identify, services provided by the Client and may include some of the words, terms or intellectual property referred to herein.
10. Applicable Law and Forum. This Agreement shall be interpreted according to the laws of the State of Delaware. The venue for any legal proceedings arising out of or relating to this Agreement, brought by either party, shall be in the state of the defendant’s principal place of business.
11. Assignment. SB may assign this Agreement without the prior consent of the Client. Client may not assign this Agreement without the prior written consent of SB.
12. Miscellaneous. In the event any provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity and enforceability of any other provision hereof. The undersigned represents and warrants that he or she has been duly authorized to enter into this Agreement on behalf of the party he or she purports to represent. The covenants, conditions, agreement, and credit/collection policy contained in this Agreement shall be binding upon and pass to the benefit of the parties and their respective heirs, successors, personal representatives, and assigns. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and shall supersede all previous proposals, both oral and written, negotiations, representations, commitments, agreements, and all other communication between the parties. This Agreement may not be altered or modified except in writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first stated above.
