EXHIBIT 10.3
AMENDED AND RESTATED LICENSE AGREEMENT
This AMENDED AND RESTATED LICENSE AGREEMENT (this "Agreement") is
entered into as of March 28, 2002 (the "Effective Date"), by and between
Autobytel Inc. ("ABT") (formerly xxxxxxxxx.xxx inc.), a Delaware corporation,
Autobytel.Europe Holdings B.V. ("ABT/E"), a Netherlands corporation, and
Autobytel.Europe LLC ("ABT/LLC"), a Delaware limited liability company.
BACKGROUND
WHEREAS, ABT and ABT/LLC entered into an INTERCOMPANY SOFTWARE LICENSE
AGREEMENT dated January 6, 2000 (the "Prior License Agreement"), under which ABT
licensed certain rights in ABT's proprietary software, business procedures, and
brand to ABT/LLC;
WHEREAS, ABT/LLC assigned all of its rights and obligations under the
Prior License Agreement to ABT/E, a wholly owned subsidiary of ABT/LLC, and
ABT/E assumed all of the rights and obligations of ABT/LLC under the Prior
License Agreement;
WHEREAS, ABT consented to the assignment of ABT/LLC's rights and
obligations under the Prior License Agreement to ABT/E;
WHEREAS, ABT and ABT/E now desire to amend and restate the Prior License
Agreement as set forth in this Agreement; and
NOW, THEREFORE, in consideration of the mutual promises and upon the
terms and conditions set forth below, the parties agree as follows:
1. Definitions
1.1. "ABT Brand" means the trademark(s), service xxxx(s) and logo(s)
listed in Attachment A, which are owned by ABT, and the ABT Domain, as defined
below.
1.2. "ABT Domain" means the Uniform Resource Locators "xxxxxxxxx.xx.xx",
"xxxxxxxxx.xx", "xxxxxxxxx.xx" and any other URLs registered within the
Territory, insofar as ABT is the holder thereof.
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1.3. "Affiliate" of a party means (i) any entity controlled by,
controlling, or under common control with such party, where "control" means
ownership, either direct or indirect, of more than 50% of the equity interest
entitled to vote for the election of directors or equivalent governing body
and/or (ii) any entity of which such party has possession, either direct or
indirect, of the power to direct or cause the direction of management and
policies of the entity through ownership of voting securities, by contract or
otherwise.
1.4. "Business Procedures" means the general proprietary business
procedures provided to ABT/LLC or ABT/E prior to the Effective Date.
1.5. "Confidential Information" means this Agreement and all its
Attachments, any addenda hereto signed by both parties, all Software listings,
Documentation, information, data, drawings, benchmark tests, specifications,
trade secrets, source code copies of the Software, object code and
machine-readable copies of the Software, Business Procedures, and any other
proprietary information disclosed by one party to the other.
1.6. "Derivative Work" means a derivative work within the meaning of 17
U.S.C. Section 101 of the U.S. copyright law. 1.7. "Documentation" means any
electronic instructions, manuals or other materials, including without
limitation on-line help files, regarding the development or use of the Software
provided to ABT/LLC or ABT/E prior to the Effective Date. ABT will not provide
any additional Documentation to ABT/E under this Agreement after the Effective
Date.
1.8. "Global Brand Protocols" means the procedures for use of the ABT
Brand, the most recent version of which was provided to ABT/E in February, 2002,
along with any revisions thereof provided to ABT/E from time to time in ABT's
sole discretion.
1.9. "Local Business" means a business providing vehicles, including
without limitation automobiles, motorcycles, motorbikes and scooters, and
vehicle-related goods and services in the Territory.
1.10. "Localize, or Localization" means any modifications to the
Software, Business Procedures or Documentation necessary to facilitate the
operation and functionality of the Software on the operating systems or
platforms within the Territory, or the modification of the Business Procedures
to meet local custom or technological or regulatory requirements.
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1.11. "Localized Version" means a Derivative Work of the Software,
Business Procedures, or Documentation that implements the core functionality of
the Software, Business Procedures, or Documentation but incorporates the
language, currency and functional variations for the Territory.
1.12. "NOC" means a national operating company that operates or intends
to operate a Local Business in the Territory pursuant to a sublicense from
ABT/E.
1.13. "Software" means the proprietary software products delivered to
ABT/LLC or ABT/E prior to the Effective Date. ABT will not provide any
additional Software to ABT/E under this Agreement after the Effective Date.
1.14. "Term" means the term of this Agreement specified in Section 11.1.
1.15. "Territory" means the countries listed in Attachment B.
2. Software, Documentation and Business Procedures.
2.1. License. Subject to the terms and conditions of this Agreement, ABT
hereby grants to ABT/E an exclusive, perpetual, royalty-free license, solely
within the Territory:
(a) to use and copy the Software, Business Procedures and
Documentation and to create, copy and use Derivative Works thereof,
solely in accordance with this Agreement; and
(b) to grant sublicenses of the rights granted in Section 2.1(a) to
NOCs in accordance with the terms of a sublicense agreement
substantially in the form set forth in Attachment C.
2.2. Limitations. ABT/E shall immediately inform ABT of any sublicenses
granted by ABT/E in accordance with Section 2.1(b), and shall provide ABT with
executed copies of such agreements. Except as otherwise set forth herein, ABT/E
may not copy, distribute, reproduce, use or allow access to the Software,
Business Procedures and Documentation. All copies of the Software will be
subject to the terms and conditions of this Agreement. Whenever ABT/E is
permitted to copy or reproduce all or any part of the Software, Business
Procedures and Documentation, all titles, trademark symbols, copyright symbols
and legends, and other proprietary markings must be reproduced. ABT/E shall not
alter or remove any trademarks, copyright notices or other proprietary notices
affixed to the Software.
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2.3. Ownership. ABT owns all right, title and interest in and to the
Software, Business Procedures and Documentation, together with any Localized
Versions or other Derivative Works of the Software, Business Procedures, or
Documentation made by or for ABT. The licenses granted herein transfer to ABT/E
neither title, nor any proprietary or intellectual property rights to the
Software, Business Procedures, or Documentation, or any copyrights, patents, or
trademarks embodied or used in connection therewith, except for the rights
expressly granted herein. All rights not expressly granted hereunder are
reserved to ABT.
2.4. Localizations and Derivative Works. Except as otherwise set forth
in this Agreement or as otherwise agreed by the parties, as between the parties,
ABT/E is responsible for any changes to the Software, Documentation, or Business
Procedures necessary to Localize them in accordance with the operation of the
Local Business. All such Localization changes and the development of any
Derivative Works must be performed by ABT/E, or by its independent contractor
approved by ABT. ABT's approval of an independent contractor shall be deemed
given thirty (30) days after ABT/E's request for approval of such contractor
unless ABT first informs ABT/E of its disapproval and a reasonable basis
therefor. Within thirty (30) days of completion of any Localized Version or
other Derivative Work of the Software, ABT/E must provide to ABT a copy of such
Localized Version or Derivative Work. Any such Localized Software or Derivative
Work provided must be in source code format.
2.5. License Back. ABT/E hereby grants to ABT, a perpetual, irrevocable,
exclusive license, to the extent of and under any and all rights owned, or
possessed or exercisable by ABT/E, to make, use, sell, import, reproduce,
perform, display, transmit, prepare Derivative Works of and otherwise exploit,
outside the Territory any and all Localized Versions and other Derivative Works
of the Software, Documentation and Business Procedures (i) assigned or licensed
to ABT/E; or (ii) prepared by or for ABT/E. ABT/E shall promptly upon completion
or receipt of any such Localized Version or Derivative Work, disclose such
Localized Version or Derivative Work to ABT, in any form reasonably requested by
ABT.
2.6. Restrictions. ABT/E shall not:
(a) sell, lease, license, sublicense or distribute the Software,
Documentation, Business Procedures, or any Localized Version or other
Derivative Work thereof except in accordance with this Agreement;
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(b) provide, disclose, divulge or make available to, or permit use
of the Software, Documentation, Business Procedures, or any Localized
Version or other Derivative Work thereof by any third party, except as
specifically authorized by this Agreement; or
(c) use the Software, Documentation, Business Procedures, or any
Localized Version or other Derivative Work thereof for any purpose
except as expressly provided for in this Agreement.
3. Obligations
3.1. ABT/E Obligations. ABT/E shall operate the Local Business solely in
accordance with the laws, regulations, and other requirements of the Territory.
During the Term, ABT/E will devote sufficient resources and personnel to the
Local Business to market, promote and operate the Local Business. ABT/E will be
responsible for all costs and expenses related to the marketing, promotion and
operation of the Local Business and for performing its obligations hereunder.
ABT/E will ensure that only properly trained and qualified persons perform
ABT/E's obligations under this Agreement.
4. Warranty and Disclaimer
4.1. ABT Warranty. ABT represents and warrants to ABT/E that ABT has
full power, right and authority to enter into this Agreement, to carry out its
obligations under this Agreement, and to grant the rights granted to ABT/E
herein. ABT further represents and warrants to ABT/E that, as of the Effective
Date, ABT has no knowledge of any claim by a third party that the Software,
Documentation, Business Procedures or ABT Brand infringe any intellectual
property rights of such third party.
4.2. ABT/E Warranty. ABT/E represents and warrants to ABT that ABT/E has
full power, right and authority to enter into this Agreement, to carry out its
obligations under this Agreement and to grant the rights granted to ABT herein.
ABT/E further represents and warrants to ABT that ABT/E is sufficiently
capitalized to undertake the business transaction contemplated hereunder.
4.3. Disclaimer. THE SOFTWARE, DOCUMENTATION AND BUSINESS PROCEDURES ARE
PROVIDED "AS-IS" AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE. ABT HEREBY
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DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED
OR ERROR-FREE. ABT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SOFTWARE, DOCUMENTATION AND BUSINESS PROCEDURES PROVIDED BY ABT
HEREUNDER.
4.4. Additional Disclaimer. The success of the business venture
contemplated to be undertaken by ABT/E by virtue of this Agreement is
speculative and depends, to a large extent, upon the ability of ABT/E as an
independent business operator and the active participation of ABT/E in the daily
affairs of the Local Business, as well as other factors. ABT does not make any
representation or warranty, express, or implied, as to the potential success of
the business venture contemplated by this Agreement.
5. Trademarks and Domain Names.
5.1. Trademarks. ABT hereby grants to ABT/E, and ABT/E accepts, upon the
terms and conditions set forth herein, an exclusive, perpetual, royalty-free
right and license:
(a) to use the ABT Brand solely on or in connection with the
advertisement, promotion and sale of new and used vehicles (including
motorcycles), content pertaining thereto, vehicle accessories,
financing, insurance and leasing, automotive-related goods, and
after-market goods and services, over or in connection with the Internet
or other channels of trade, solely within the Territory; and
(b) to grant sublicenses of the rights granted in Section 5.1(a) to
NOCs in accordance with the terms of a sublicense agreement
substantially in the form set forth in Attachment C.
5.2. Limitations.
(a) ABT/E shall fully comply with the Global Brand Protocols in
relation to ABT/E's use of the ABT Brand.
(b) Nothing contained in this Agreement will grant or will be
deemed to grant to ABT/E any right, title or interest in or to the ABT
Brand, except as expressly provided herein. ABT/E shall not challenge or
assist others to challenge the ABT Brand (except to the extent such
restriction is expressly prohibited by applicable law) or the
registration thereof or attempt to register any trademarks, service
marks, trade names, Uniform
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Resource Locators, or other designations confusingly similar to those of
ABT. If ABT/E, in the course of exercising its rights hereunder,
acquires any goodwill or reputation in the ABT Brand, all such goodwill
or reputation will automatically vest in ABT when and as, on an on-going
basis, such acquisition of goodwill or reputation occurs. In the event
of termination of this Agreement, without any separate payment or other
consideration of any kind to ABT/E, ABT/E agrees to take all such
actions necessary to effect such vesting, including without limitation
the transfer to ABT of rights in any filings or registrations made under
Section 5.2(c) below, and including without limitation the transfer from
ABT/E to ABT of the ABT Domain upon termination of this Agreement. ABT/E
will promptly execute all documents necessary to effect such transfer at
no cost to ABT. Upon termination of this Agreement, ABT/E shall
immediately cease to use the ABT Brand.
(c) ABT/E shall advise ABT regarding the registrations or filings
necessary to protect the use of the ABT Brand in the Territory. ABT
shall make, and ABT/E shall cooperate with ABT to make, such
registrations or filings with the appropriate authorities in ABT's name.
All costs and fees associated with any registrations or filings made in
the Office for the Harmonization of the Internal Market (Trade Marks and
Designs) shall be borne by ABT. All costs and fees associated with any
registrations or filings made in the individual countries in the
Territory shall be borne by ABT/E.
(d) ABT/E acknowledges that others may also be granted rights to
use the ABT Brand in connection with certain goods and services and that
some of the goods and services sold by other licensees of ABT in other
territories may be imported and resold in the Territory. Accordingly,
notwithstanding anything to the contrary herein, ABT/E acknowledges and
agrees that the exclusivity of the license granted in Section 5.1 above
shall not be deemed to limit or prohibit the importation or resale in
the Territory by third parties of goods or services purchased by vehicle
dealers, OEMs or end consumers from other licensees of ABT in other
territories.
(e) ABT/E agrees not to object to any advertisement of any other
licensee of ABT, provided that such advertisement is consistent with the
Global Brand Protocols, or has been approved by ABT, and is primarily
directed to an audience outside of the
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Territory. In addition, ABT/E agrees that the primary audience of all
advertisements run by ABT/E in connection with the ABT Brand shall be
located within the Territory.
(f) The parties acknowledge and agree that great value is placed on
the ABT Brand and the goodwill associated therewith, that the consuming
public and the automotive industry now associate the ABT Brand with
automotive goods and services of consistently high quality, and that the
terms and conditions of this Agreement are necessary and reasonable to
assure the consuming public and the industry that all goods and services
upon which the ABT Brand is used are of the same consistently high
quality as goods and services sold by ABT and others who are or may
hereafter be licensed to sell goods and services under the ABT Brand.
(g) On any promotional materials used or disseminated by ABT/E
relating to the Local Business, ABT/E shall display the ABT Brand. Where
both ABT/E's marks and the ABT Brand are displayed, the marks will be
presented equally legibly, and in a size and style in accordance with
ABT's then-current Global Brand Protocols.
(h) ABT/E agrees to comply with all applicable local, state,
federal and foreign laws pertaining to its advertising, sale and
distribution of goods and services advertised or sold under the ABT
Brand, and at all times to conduct its activities under this Agreement
in a lawful manner.
5.3. Domain Names. ABT hereby grants to ABT/E an exclusive, perpetual,
royalty-free right in the Territory:
(a) to use the ABT Domain; and
(b) to grant sublicenses of the rights granted in Section 5.3(a) to
NOCs in accordance with the terms of a sublicense agreement
substantially in the form set forth in Attachment C.
5.4. Limitations. ABT/E shall be responsible for making and renewing any
necessary registrations of the ABT Domain in the Territory at ABT/E's expense.
Upon termination of this Agreement, ABT/E agrees to promptly assign all right,
title and interest in the ABT Domain to ABT without any additional consideration
therefor and to cease to use the ABT Domain.
6. Limitation of Liability. EXCEPT FOR THIRD PARTY CLAIMS ARISING OUT OF
SECTION 7, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY
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INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE,
ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS
OF ANTICIPATED PROFITS, LOSS OF DATA, OR LOSS OF USE, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Indemnification.
7.1. Indemnification by ABT. ABT shall, at its expense, defend or settle
any claim, action or allegation brought against ABT/E that the Software,
Documentation, or Business Procedures infringe any copyright, trademark, or
trade secret right of any third party in the Territory, and shall pay any final
judgments awarded or settlements entered into; provided that ABT/E gives prompt
written notice to ABT of any such claim, action or allegation of infringement
and gives ABT the authority to proceed as contemplated herein. ABT will have the
exclusive right to defend any such claim, action or allegation and make
settlements thereof in its own discretion, and ABT/E may not settle or
compromise such claim, action or allegation, except with the prior written
consent of ABT. ABT/E shall give such assistance and information as ABT may
reasonably require to settle, or oppose such claims. In the event any such
infringement, claim, action or allegation is brought or threatened, ABT shall,
at its sole option and expense:
(a) procure for ABT/E the right to continue use of the Software,
Documentation, Business Procedures or infringing part thereof; or
(b) modify or amend the Software, Documentation, Business
Procedures or infringing part thereof, or replace the Software,
Documentation, Business Procedures or infringing part thereof with other
Software, Documentation or Business Procedures having substantially the
same or better capabilities.
The foregoing obligations will not apply to the extent the infringement
arises as a result of modifications to the Software, Documentation, or Business
Procedures not made by ABT, or the combination of the Software with any
materials or technology not supplied by ABT. The foregoing states the entire
liability of ABT with respect to infringement of any patent, copyright,
trademark, trade secret or other proprietary right.
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7.2. Indemnification by ABT/E. ABT/E shall, at its expense, defend or
settle any claim, action or allegation brought against ABT (to the extent not
covered by Section 7.1) arising from the act or omission of ABT/E or any NOC,
where a third party alleges fraud, misrepresentation, or unfair business
practices arising from the operation of ABT/E or the Local Business of an NOC,
or those that arise from a third party allegation that any Localized Version or
other Derivative Work of the Software, Business Procedures or Documentation made
by or for ABT/E or any NOC infringes any copyright, trade secret, patent or
trademark right of any third party, and shall pay any final judgments awarded or
settlements entered into; provided that ABT gives prompt written notice to ABT/E
of any such claim, action or allegation of infringement and gives ABT/E the
authority to proceed as contemplated herein. ABT/E will have the exclusive right
to defend any such claim, action or allegation and make settlements thereof in
its own discretion, and ABT may not settle or compromise such claim, action or
allegation, except with the prior written consent of ABT/E. ABT shall give such
assistance and information as ABT/E may reasonably require to settle or oppose
such claims. In the event any such infringement, claim, action or allegation is
brought or threatened, ABT/E may, at its sole option and expense:
(a) procure for ABT the right to continue use of the Localized
Version, Derivative Work or infringing part thereof; or
(b) modify or amend the Localized Version, Derivative Work or
infringing part thereof, or replace the Localized Version, Derivative
Work or infringing part thereof with other materials having
substantially the same or better capabilities.
8. Prosecution of Infringers. ABT and ABT/E shall give each other
written notice of any acts of infringement by third parties involving
intellectual property rights relating to the Software, Documentation, Business
Procedures, or any Localized Version or other Derivative Work thereof, or the
ABT Brand, anywhere in the Territory of which ABT or ABT/E has knowledge. ABT
will have the exclusive right to take action to enforce such rights. If ABT
decides not to enforce such rights, ABT shall inform ABT/E of such decision
within thirty (30) days of receiving notification of such infringement from
ABT/E. ABT may then authorize ABT/E to take such actions as ABT/E considers
necessary or appropriate and ABT/E will be entitled to take such actions at
ABT/E's expense. Each party shall render to the other any assistance requested
by the other in proceedings against an infringer within the Territory, at the
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other party's expense. Any damage that might be awarded will, after deduction of
actual costs, be awarded to the party that undertakes legal action.
9. Confidential Information
9.1. Obligations. The parties acknowledge and agree that the
Confidential Information disclosed by one party (the "Disclosing Party") to the
other party (the "Receiving Party") directly or indirectly hereunder constitutes
the confidential and proprietary information of the Disclosing Party. The
Receiving Party shall retain in strict confidence and not disclose to any third
party (with the exception of any NOCs or third party contractors in accordance
with Section 9.4) any Confidential Information without the Disclosing Party's
express written consent, and the Receiving Party shall not use such Confidential
Information except to exercise the rights and perform its obligations under this
Agreement. Without limiting the foregoing, each party shall use at least the
same procedures and degree of care which it uses to protect its own Confidential
Information of like importance, and in no event less than reasonable care.
9.2. Exceptions. The Receiving Party shall be relieved of this
obligation of confidentiality to the extent it can demonstrate that any such
information is publicly available, already in the Receiving Party's possession
at the time of disclosure and not subject to a confidentiality obligation,
obtained by the Receiving Party from third parties without restrictions on
disclosure, independently developed by the Receiving Party without reference to
Confidential Information, required to be disclosed by order of a court or other
governmental entity or stock exchange, or disclosed to business or legal
advisors acting under a duty of confidentiality.
9.3. Source Code Protections. ABT/E shall reproduce and shall not
obscure or remove any marking on any copy or Derivative Work of the source code
for the Software. In addition, each copy or Derivative Work of the source code
for the Software must be marked as the confidential and proprietary property of
ABT to which access is restricted, and ABT/E shall keep and use the source code
for the Software solely at ABT/E's secure development facilities under password
protection. ABT/E agrees to limit access to the source code for the Software
twenty-four (24) hours a day, and strictly to those employees or Contractors to
whom access is reasonably necessary in order to carry out the permitted uses of
the source code for the Software hereunder. ABT/E shall keep records of all
persons who have access to the source code for the Software. At ABT's request,
ABT/E agrees to provide such records to ABT for review.
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9.4. Contractors. ABT/E may appoint a third party contractor approved by
ABT ("Contractor") to assist ABT/E in ABT/E's modification or implementation of
the Software as authorized hereunder; provided, however, that any such
Contractor's access to and use of the Software (including any Localized Version
or other Derivative Work): (a) will only be permitted pursuant to a signed
written agreement between ABT/E and such Contractor that contains terms at least
as restrictive as those set forth in this Section 9, (b) protects ABT's
proprietary rights in the Software to the degree set forth in this Agreement,
and (c) grants the Contractor no rights in the Software inconsistent with the
rights granted hereunder.
9.5. Notification of Security Breach. ABT/E shall notify ABT promptly in
the event of any breach of its security of which ABT/E becomes aware, under
conditions in which it would appear that the trade secrets contained in the
source code for the Software or any Derivative Work thereof were prejudiced or
exposed to loss. ABT/E shall, upon request of ABT, take all other reasonable
steps necessary to recover any compromised trade secrets disclosed to or placed
in the possession of ABT/E by virtue of this Agreement. The cost of taking such
steps will be borne solely by ABT/E.
9.6. Injunctive Relief. In the event of breach of the provisions of this
Section 9, the non-breaching party will have no adequate remedy at law and will
be entitled to seek immediate injunctive and other equitable relief, without the
necessity of showing actual money damages.
10. Consideration. In consideration of the licenses granted herein,
ABT/LLC has issued to ABT certain shares of the equity securities of ABT/LLC,
pursuant to that certain Amended and Restated Operating Agreement among ABT/LLC
and certain other parties dated January 6, 2000, as amended from time to time
(the "Operating Agreement"), and ABT/E shall use its best efforts to maximize
revenue from exploiting the rights granted to ABT/E hereunder.
11. Term and Termination
11.1. Term. This Agreement and the licenses granted hereunder will be
effective as of the Effective Date and will continue in perpetuity, unless
terminated as set forth in this Section 11.
11.2. Termination. This Agreement may be terminated only as follows, if
any of the following events ("Termination Events") occur:
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(a) Default. In the event that any party defaults in the
performance of a material obligation under this Agreement, then the
non-defaulting party may provide written notice to the defaulting party
indicating: (i) the nature and basis of such default with reference to
the applicable provisions of this Agreement; and (ii) the non-defaulting
party's intention to terminate this Agreement. If such default is
amenable to cure within thirty (30) days, the non-defaulting party may
seek to terminate this Agreement under this Section 11.2(a) in the event
that such material default is not cured within such thirty (30) day
period. If such default is not amenable to cure within thirty (30) days,
then the non-defaulting party may seek to terminate this Agreement if
the defaulting party has not made significant and ongoing attempts to
cure such default within thirty (30) days, or if the defaulting party
has not cured such default as soon as possible thereafter. In either
case, upon the expiration of such cure periods the non-defaulting party
may initiate an arbitration proceeding to terminate this Agreement in
accordance with Section 14.12(b). The parties shall instruct the
arbitrator to make a determination as to whether a material default has
occurred within thirty (30) days after the arbitration proceeding is
initiated. If the arbitrator determines that a material default has
occurred, the non-defaulting party may terminate this Agreement
immediately upon written notice.
(b) ABT may terminate this Agreement immediately upon written
notice if ABT/E: (i) terminates or suspends its business; (ii) admits in
writing its inability to pay its debts as they mature, makes an
assignment for the benefit of creditors, or becomes subject to direct
control of a trustee, receiver or similar authority; or (iii) becomes
subject to any bankruptcy or insolvency proceeding under federal,
foreign, or state statutes, which proceeding is not dismissed within
sixty (60) days of the initiation thereof.
(c) ABT may terminate this Agreement immediately upon written
notice if: (i) the Operating Agreement is terminated; or (ii) ABT/LLC is
otherwise liquidated or dissolved; provided, however, that a sale by ABT
of its interest in ABT/LLC shall not constitute cause for termination of
this Agreement by ABT.
11.3. Effect of Termination.
(a) Survival. Upon termination of this Agreement in accordance
with the above provisions, the rights and licenses granted under this
Agreement will immediately
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terminate except as otherwise stated herein. The terms and conditions of
the following Sections will survive termination or expiration of this
Agreement: 1, 2.3, 2.5, 2.6, 4, 5.2, 5.4, 6, 7, 8, 9.1, 9.2, 9.3, 9.5,
9.6, 11.3, 13, 14, 15, 16 and 17.
(b) Return of Materials. Within thirty (30) days after the date of
termination or discontinuance of this Agreement for any reason
whatsoever, ABT/E shall, at ABT's option, return or destroy any copies
of the Software, Documentation, Business Procedures and any Localized
Versions and other Derivative Works thereof and any other Confidential
Information in its possession that is in tangible form, and any
materials that include the ABT Brand. ABT/E shall furnish ABT with a
certificate signed by an executive officer of ABT/E verifying that the
same has been done.
12. Nonassignment/Binding Agreement. Neither this Agreement, nor any rights
or obligations under this Agreement, may be assigned or otherwise transferred by
ABT/E, in whole or in part, whether voluntary, or by operation of law, including
by way of sale of assets, merger or consolidation, without the prior written
consent of ABT. Any permitted assignee must agree in writing to be bound by all
the terms and conditions of this Agreement. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
13. Notices. Any notice, submission, or communication required or permitted
under the terms of this Agreement, or required by law, whether or not so
required elsewhere in this Agreement, must be in writing and must be: (a)
delivered in person, (b) sent by first class registered mail, return receipt
requested, or air mail, as appropriate, (c) sent by overnight air courier, in
each case properly posted and fully prepaid to the appropriate address set forth
below; or (d) sent by facsimile with transmission confirmed. Either party may
change its address for notice by notice to the other party given in accordance
with this Section 13. Notices will be considered to have been given at the time
of the earlier of: (p) actual delivery in person, (q) the date of a receipt of
such notice signed by an authorized representative of the party being notified,
(r) the date of a written confirmation of receipt by the party being notified,
or (s) thirty (30) days after deposit in the mail as set forth above.
Notice Addresses:
ABT Autobytel Inc.
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00000 XxxXxxxxx Xxxx.
Xxxxxx, XX 00000
X.X.X.
Attention: General Counsel
Fax No.: (000)000-0000
ABT/E Autobytel.Europe Holdings B.V.
P.J. Xxxxxx 00
0000 XX Xxxxxx
X.X. Xxx 00000
0000 XX Xxxxxx
Xxx Xxxxxxxxxxx
Fax: 00 00 00 00 000
14. Miscellaneous
14.1. Force Majeure. Neither party will incur any liability to the other
party on account of any loss or damage resulting from any delay or failure to
perform all or any part of this Agreement if such delay or failure is caused, in
whole or in part, by embargoes, floods, acts of civil or military authority,
fuel crisis, acts of God, strikes, lockouts, riots, acts of war, acts of
terrorism, fires and explosions, but the inability to meet financial obligations
is expressly excluded ("Force Majeure"). The time for performance will be
extended for a period equal to the duration of the delay, but in no event longer
than one hundred eighty (180) days. If, as a result of a Force Majeure, a party
is unable to resume performance within such one hundred eighty (180) day period,
the other party will have the right to terminate this Agreement.
14.2. No Waiver; Amendment. Any waiver of the provisions of this
Agreement or of a party's rights or remedies under this Agreement must be in
writing to be effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time will not be
construed and will not be deemed to be a waiver of such party's rights under
this Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice such party's right to take subsequent
action. This Agreement may not be amended, except by a writing signed by both
parties.
14.3. Severability. If any term, condition, or provision of this
Agreement is found to be invalid, unlawful or unenforceable to any extent, the
parties shall endeavor in good faith to agree to such amendments that will
preserve, as far as possible, the intentions expressed in this
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Agreement. If the parties fail to agree on such an amendment, such invalid term,
condition or provision will be severed from the remaining terms, conditions and
provisions, which will continue to be valid and enforceable to the fullest
extent permitted by law.
14.4. Entire Agreement. This Agreement (including the Attachments and
any addenda hereto signed by both parties) contains the entire agreement of the
parties with respect to the subject matter of this Agreement and supersedes all
previous communications, representations, understandings and agreements, either
oral or written, between the parties with respect to said subject matter.
14.5. No Conflicting Provisions. No terms, provisions or conditions of
any purchase order, acknowledgment or other business form that either party may
use in connection with this Agreement have any effect on the rights, duties or
obligations of the parties under, or otherwise modify, this Agreement,
regardless of any failure of the other party to object to such terms, provisions
or conditions.
14.6. [Reserved.]
14.7. Export Restrictions. ABT/E understands that ABT is subject to
regulation by agencies of the U.S. government, including, but not limited to,
the U.S. Department of Commerce, which prohibit export or diversion of certain
technical products to certain countries. ABT/E warrants that it will comply in
all respects with the Export Administration Regulations and all other export or
re-export restrictions applicable to the Software, Business Procedures and
Documentation licensed hereunder. Further, ABT/E shall cooperate as requested by
ABT to ensure compliance with any export restrictions or licenses relating to
the Software.
14.8. Rights and Remedies. No exercise or enforcement by either party of
any other right or remedy under this Agreement will preclude the enforcement by
such party of any other right or remedy under this Agreement or that such party
is entitled by law to enforce.
14.9. Counterparts. This Agreement may be executed in counterparts, each
of which so executed will be deemed to be an original and such counterparts
together will constitute one and the same agreement.
14.10. Governing Law. This Agreement will be interpreted and construed
in accordance with the laws of the State of California and the United States of
America, without regard to
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conflict of law principles and excluding the 1980 United Nations Convention on
Contracts for the International Sale of Goods.
14.11. Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall not be binding on the parties hereto. All communications
and notices to be made or given pursuant to this Agreement shall be in the
English language.
14.12. Dispute Resolution.
(a) Escalation. If a dispute otherwise arises under this
Agreement, it should be referred to the President or Chief Executive
Officer of each of the parties for resolution, and such persons shall
use their best efforts to resolve the matter for no less than thirty
(30) days from the date the President or Chief Executive Officer of one
party first attempts in a reasonable manner to initiate contact with the
President or Chief Executive Officer of the other party. Any matter such
persons are unable to resolve within such period may be submitted to the
dispute resolution procedure set forth in Section 14.12(b) below.
(b) Arbitration. Any dispute or claim arising out of or in
relation to this Agreement not resolved by Section 14.12(a) above must
be settled by binding arbitration under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce as presently in
force ("Rules") and by one (1) arbitrator appointed in accordance with
said Rules. Judgment on the award rendered may be entered in any court
having jurisdiction thereof. The place of arbitration will be Orange
County, California, U.S.A. Any monetary award must be calculated and
denominated in U.S. dollars and the arbitration must be conducted in the
English language. Notwithstanding the other provisions of this Section
14.12, either party may apply to any court of competent jurisdiction for
injunctive or equitable relief.
14.13. Legal Expenses. If there is a successful action by one party
against the other party to enforce this Agreement or obtain damages as a result
of any breach of this Agreement, then the prevailing party shall be entitled to
recover from the other party, in addition to any damages, all costs and expenses
incurred by the prevailing party in connection with the action, including
reasonable attorneys' fees and court costs.
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15. Enforcement of Sublicenses. ABT/E shall, at ABT/E's expense, promptly
take all actions requested by ABT to enforce any sublicenses between ABT/E and
its NOCs, which actions may include, without limitation, any lawsuits necessary
or appropriate to enforce such sublicenses.
16. Effect on Prior License Agreement. The parties agree that this Agreement
supersedes and replaces the Prior License Agreement in all respects.
17. Release. Each party, for itself and its successors, assigns, and
affiliated or related entities, does hereby release and forever discharge the
other parties, their successors, assigns, and affiliated or related entities,
and their officers, managers, directors, shareholders, members, employees,
attorneys, agents and customers, from any and all claims, causes of action,
debts, liabilities, demands, obligations, costs, expenses, damages, and actions
of whatever kind or nature, anticipated or unanticipated, known or unknown,
which such party has or ever had, including without limitation all claims,
causes of action, debts, liabilities, demands, obligations, costs, expenses,
damages, and actions pertaining to or arising out of the Prior License Agreement
or any transactions of any kind between the parties thereto, or their affiliated
or related entities, which were or could have been asserted in litigation or in
any arbitration which could have been brought under the Prior License Agreement
or otherwise. The parties hereby acknowledge that they may hereafter discover
facts in addition to or different from those which they now know or believe to
be true with respect to the subject matters of this Agreement and/or the Prior
License Agreement, but that they agree to and do hereby, fully, finally and
forever settle and release any and all claims, causes of action, debts,
liabilities, demands, obligations, costs, expenses, damages, and actions, known
and unknown, suspected and unsuspected, of every kind and nature whatsoever,
which now exist, or may heretofore have existed with respect to the subject
matters of this release; in furtherance thereof, the parties acknowledge that
the release herein given shall be and remain in effect as a full and complete
general release, notwithstanding the subsequent discovery or existence of any
such additional or different facts.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by duly authorized representatives on the dates set forth below.
Autobytel Inc. ("ABT") Autobytel.Europe Holdings B.V. ("ABT/E")
By: /s/ Xxxxx Xxxx By: /s/ Henk Rottinghuis
---------------------------------------- -----------------------------------------
Name: Xxxxx Xxxx Name: Henk Rottinghuis
-------------------------------------- ---------------------------------------
Title: Executive Vice President Title: Director
------------------------------------- --------------------------------------
Date: March 28, 2002 Date: March 28, 2002
--------------------------------------
Address: 00000 XxxXxxxxx Xxxxxxxxx Xxxxxxx:
Xxxxxx, XX 00000 XXX ------------------------------------
-------------------------------------------- ---------------------------------------------
Autobytel.Europe LLC ("ABT/LLC")
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Ariel Ami
--------------------------------------
Title: Manager
-------------------------------------
Date: March 28, 2002
--------------------------------------
Address:
-----------------------------------
--------------------------------------------
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ATTACHMENT A
AUTOBYTEL
XXXXXXXXX.XXX
[XXXXXXXXX.XXX LOGO]
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ATTACHMENT B
Albania
Andorra
Austria
Belarus
Bosnia-Herzegovina
Bulgaria
Croatia
Czech Republic
Denmark
Estonia
Finland
France
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Latvia
Liechtenstein
Lithuania
Luxembourg
Macedonia
Malta
Moldova
Monaco
Netherlands
Norway
Poland
Portugal
Romania
San Marino
Serbia/Montenegro
Slovakia
Slovenia
Spain
Sweden
Switzerland
United Kingdom
Vatican City
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